New York State Department of State

December 9, 2015 DEPARTMENT OF STATE Vol. XXXVII Division of Administrative Rules Issue 49 NEW YORK STATE REGISTER

INSIDE THIS ISSUE: D OASAS Treatment Services: General Provisions D Medical Assistance for Chemical Dependence Services D Residential Services Guidance Documents

State agencies must specify in each notice which proposes a rule the last date on which they will accept public comment. Agencies must always accept public comment: for a minimum of 45 days following publication in the Register of a Notice of Proposed Rule Making or a Notice of Emergency Adoption and Proposed Rule Making for which full text was included in the Notice or posted on a state web site, or which is a consensus rule or a rule defined in SAPA § 102(2)(a)(ii); or for a minimum of 60 days following publication in the Register of a Notice of Proposed Rule Making or a Notice of Emergency Adoption and Proposed Rule Making for which a summary of the text of the rule was included in the Notice and the full text of which was not published on a state web site; and for 30 days after publication of a Notice of Revised Rule Making in the Register. When a public hearing is required by statute, the hearing cannot be held until 45 days after publication of the notice, and comments must be accepted for at least 5 days after the last required hearing. When the public comment period ends on a Saturday, Sunday or legal holiday, agencies must accept comment through the close of business on the next succeeding workday.

For notices published in this issue: – the 60-day period expires on February 7, 2016 – the 45-day period expires on January 23, 2016 – the 30-day period expires on January 8, 2016 ANDREW M. CUOMO GOVERNOR

CESAR A. PERALES SECRETARY OF STATE

NEW YORK STATE DEPARTMENT OF STATE

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The public is encouraged to comment on any of the proposed rules appearing in this issue. Comments must be made in writing and must be submitted to the agency that is proposing the rule. Address your comments to the agency representative whose name and address are printed in the notice of rule making. No special form is required; a handwritten letter will do. Individuals who access the online Register (www.dos.ny.gov) may send public comment via electronic mail to those recipients who provide an e-mail address in Notices of Proposed Rule Making. This includes Proposed, Emergency Proposed, Revised Proposed and Emergency Revised Proposed rule makings.

To be considered, comments must reach the agency before the proposed rule is adopted. The law provides for a minimum 45-day public comment period after publication in the Register of every Notice of Proposed Rule Making for which full text was included or posted on a state web site, or which is a consensus rule or a rule defined in SAPA § 102(2)(a)(ii); a minimum 60-day public comment period after publication in the Register of a Notice of Proposed Rule Making for which a summary of the text of the rule was included in the Notice and the full text of which was not published on a state web site; and a 30-day public comment period for every Notice of Revised Rule Making. If a public hearing is required by statute, public comments are accepted for at least five days after the last such hearing. Agencies are also required to specify in each notice the last date on which they will accept public comment.

When a time frame calculation ends on a Saturday or Sunday, the agency accepts public comment through the following Monday; when calculation ends on a holiday, public comment will be accepted through the following workday. Agencies cannot take action to adopt until the day after public comments are due.

The Administrative Regulations Review Commission (ARRC) is charged with the task of reviewing newly proposed regulations to examine the issues of compliance with legislative intent, impact on the economy, and impact on affected parties. In addition to sending comments or recommendations to the agency, please do not hesitate to transmit your views to ARRC:

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New York State Register December 9, 2015/Volume XXXVII, Issue 49

KEY: (P) Proposal; (RP) Revised Proposal; (E) Emergency; (EP) Emergency and Proposal; (A) Adoption; (AA) Amended Adoption; (W) Withdrawal

Individuals may send public comment via electronic mail to those recipients who provided an e-mail address in Notices of Proposed Rule Making. This includes Proposed, Emergency Proposed, Revised Proposed and Emergency Revised Proposed rule makings. Choose pertinent issue of the Register and follow the procedures on the website (www.dos.ny.gov) Rule Making Activities Alcoholism and Substance Abuse Services, Office of 1 / OASAS Treatment Services: General Provisions (E) 2 / Medical Assistance for Chemical Dependence Services (E) 4 / Residential Services (E) 5 / General Service Standards for Chemical Dependence Outpatient (CD-OP) and Opioid Treatment Programs (OTP) (E) 7 / Incident Reporting in Oasas Certified, Licensed, Funded, or Operated Services (E) 10 / OASAS Treatment Services: General Provisions (A) 10 / Medical Assistance for Chemical Dependence Services (A) 11 / Residential Services (A) 12 / General Service Standards for Chemical Dependence Outpatient (CD-OP) and Opioid Treatment Programs (OTP) (A) 13 / Incident Reporting in Oasas Certified, Licensed, Funded, or Operated Services (A) Children and Family Services, Office of 13 / Youth Development Program Funding and Implementation (P) Economic Development, Department of 16 / START-UP NY Program (E) 18 / Employee Training Incentive Program (EP) Education Department 20 / Annual Professional Performance Reviews of Classroom Teachers and Building Principals (E) 39 / Voluntary Institutional Accreditation for Title IV Purposes (P) Financial Services, Department of 41 / Business Conduct of Mortgage Loan Servicers (E) Gaming Commission, New York State 45 / To Allow Harness Tracks to Run Races Solely for New York-Bred Horses and Provide That Condi- tions May be Written for Such Races (A) Law, Department of 45 / Disclosure Requirements for Condominium Offerors Renting, Rather Than Selling, Unsold Condo- minium Units (P) Mental Health, Office of 48 / Implementation of the Protection of People with Special Needs Act and Reforms to Incident Management (A) Public Service Commission 49 / Submetering of Electricity (A) 50 / Area Code Overlay (A) 50 / Approval of Amendments to Regulations on USOA and Reporting Requirements (A) 50 / Rehearing and Clarification (A) 50 / Alliance's Financing Limit (A) 51 / Cricket Valley's Financing Arrangement (A) 51 / Waiver of Rules (A) 51 / Transfer of Street Lighting Facilities (A) 51 / Annual Operating Revenues and Restoration of Service Charges (A) 52 / Petition to Waive Monthly Billing for Certain Net-Metered Customers (P) 52 / Petition to Transfer Assets of AOMNE to NYAW (P) 52 / Request of the New York Independent System Operator, Inc. to Incur Indebtedness (P) 52 / Petition for Rehearing of the Order Establishing Interim Ceilings on the Interconnection of Net Metered Generation (P) 53 / Proposed Revisions to Rule 34—Economic Development Programs and SC No. 12—Special Contract Rates (P) State, Department of 53 / Installation of Carbon Monoxide Detecting Devices in Commercial Buildings (E) 60 / Installation of Carbon Monoxide Detecting Devices in Commercial Buildings (A) 68 / Cemetery Annual Financial Reports; Commercial Crime Coverage; and Permanent Maintenance Fund Contributions (P) Taxation and Finance, Department of 70 / Fuel Use Tax on Motor Fuel and Diesel Motor Fuel and the Art. 13-A Carrier Tax Jointly Administered Therewith (A) 70 / Fuel Use Tax on Motor Fuel and Diesel Motor Fuel and the Art. 13-A Carrier Tax Jointly Administered Therewith (P) Hearings Schedule for Proposed Rule Makings /72 Action Pending Index /73

Guidance Documents 123 / Taxation and Finance, Department of

Advertisements for Bidders/Contractors 125 / Sealed Bids

Miscellaneous Notices/Hearings 127 / Notice of Abandoned Property Received by the State Comptroller 127 / Notice of Public Hearing 127 / Public Notice RULE MAKING ACTIVITIES

Each rule making is identified by an I.D. No., which consists all OASAS treatment modalities affected by the Medicaid Managed Care transition. of 13 characters. For example, the I.D. No. To be effective by October 1, the earliest the proposed rules would have AAM-01-96-00001-E indicates the following: to have been submitted for publication for regular (non-emergency) adoption (including the required 45-day public comment period provided for in AAM -the abbreviation to identify the adopting agency the State Administrative Procedure Act (SAPA) sections 201(1) and (5)) 01 -the State Register issue number no later than August 5; assuming no comments, the notices of adoption would have been published in the September 26 State Register. Amend- 96 -the year ments to the texts related to federal Medicaid standards delayed publica- 00001 -the Department of State number, assigned upon tion and necessitate emergency adoption. Therefore, emergency action is necessary for the preservation of the receipt of notice. general welfare in order to immediately establish consistent standards in E -Emergency Rule Making—permanent action Part 800 applicable to all OASAS programs certified to provide outpatient not intended (This character could also be: A and residential services and therefore to maximize newly available federal for Adoption; P for Proposed Rule Making; RP Medicaid revenues for certain certified residential services. Subject: OASAS Treatment Services: General Provisions. for Revised Rule Making; EP for a combined Purpose: General provisions applicable to all OASAS treatment services: Emergency and Proposed Rule Making; EA for definitions, incorporation by reference, staffing. an Emergency Rule Making that is permanent Substance of emergency rule: The Proposed Rule amends Part 800 and does not expire 90 days after filing.) (formerly “Chemical Dependence Services: General Provisions”) to centralize and consolidate into one Part definitions, applicable statutes and Italics contained in text denote new material. Brackets publications incorporated by reference, and authorizations applicable to all OASAS treatment modalities and regulations found in 14 NYCRR indicate material to be deleted. Chapter XXI related to the operations of the Office. Section 800.1 sets forth the legal authorization in the Mental Hygiene Law for promulgation of this Rule. § 800.2 lists statutes, publications and other regulations which are incorporated by reference into one or all of the other Parts in Chapter XXI. Office of Alcoholism and Including them in one Part, rather than individually in each Part, is more efficient for purposes of regulatory enforcement and future amendments. Substance Abuse Services Commonly referenced citations include: a. The most current version of the “International Classification of Diseases”; b. The most current version of the “Diagnostic and Statistical Manual EMERGENCY of Mental Disorders”; RULE MAKING c. 42 Code of Federal Regulations Part 2, et. seq; d. The most current version of the OASAS Level of Care Determina- OASAS Treatment Services: General Provisions tion Tool (LOCADTR); e. The most current version of the “Medicare Provider Reimbursement I.D. No. ASA-36-15-00020-E Manual”; Filing No. 1012 f. “Health Insurance Portability and Accountability Act of 1996” Filing Date: 2015-11-23 (HIPPA). § 800.3 sets forth frequently used definitions applicable to all of the Effective Date: 2015-11-23 other Parts of Chapter XXI. Including them in one Part, rather than individually in each Part, is more efficient for purposes of regulatory PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- enforcement and future amendments. Definitions, references and language cedure Act, NOTICE is hereby given of the following action: usage in the field of substance use disorder treatment have evolved so that many existing definitions are no longer relevant and others have become Action taken: Repeal of Part 800; and addition of new Part 800 to Title 14 more significant. Key amendments and definitions include: NYCRR. a. Definition of “substance use disorder” which will include formerly Statutory authority: Mental Hygiene Law, sections 19.07(e), 19.09(b), preferred references to “chemical dependence”; 32.01 and 32.07(a) b. “Sponsor” formerly “governing authority” to be consistent with other Finding of necessity for emergency rule: Preservation of public health, Department of Mental Hygiene Offices; public safety and general welfare. c. “Medical Director” setting forth specific requirements for the posi- Specific reasons underlying the finding of necessity: The immediate tion; adoption of this new Part is necessary for the preservation of the health, d. “Program” and “Provider”; safety, and welfare of individuals receiving services. October 1, 2015 the e. “Qualified Health Professional” to include recent additions to the list; initial implementation of a major initiative of Governor Cuomo’s f. “ Student intern” and “Peer advocate”; Medicaid Redesign Team (MRT) – carve-in of behavioral health services g. “diagnosis”. into Medicaid Managed Care -- will begin in New York City; followed by § 800.4 outlines the parameters for a regulatory waiver granted by the the rest of the state in January 2016. The concurrent promulgation of Part Commissioner. 800 (General Provisions), Part 822 (Outpatient Services), Part 820 (Resi- § 800.5 is a standard severability clause. dential Services) and Part 841 (Medical Assistance for Chemical Depen- This notice is intended to serve only as a notice of emergency adoption. dence Services) is necessary because these regulations are foundational to This agency intends to adopt the provisions of this emergency rule as a

1 Rule Making Activities NYS Register/December 9, 2015 permanent rule, having previously submitted to the Department of State a The application of the rule will not impose additional costs or operating notice of proposed rule making, I.D. No. ASA-36-15-00020-EP, Issue of requirements on providers on local governments or small businesses; September 9, 2015. The emergency rule will expire December 9, 2015. therefore, it is designed on its face to minimize adverse impact. Text of rule and any required statements and analyses may be obtained 7. Small business and local government participation: from: Sara Osborne, Associate Attorney, NYS OASAS, 1450 Western The proposed rule is posted on the agency website; agency review pro- Ave., Albany, NY 12203, (518) 485-2317, email: cess involves input from trade organizations representing providers in [email protected] both public and private sectors, of all sizes and in diverse geographic Regulatory Impact Statement locations. 1. Statutory Authority: Rural Area Flexibility Analysis (a) Section 19.07(e) of the Mental Hygiene Law authorizes the Com- 1. Rural areas in which the rule will apply (types and estimated number missioner (“Commissioner”) of the Office to adopt standards including of rural areas): necessary rules and regulations pertaining to chemical dependence OASAS services are provided in every county in New York State. 44 services. counties have a population less than 200,000: Allegany, Cattaraugus, (b) Section 19.09(b) of the Mental Hygiene Law authorizes the Com- Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, missioner to adopt regulations necessary and proper to implement any Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, matter under his or her jurisdiction. Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, (c) Section 19.40 of the Mental Hygiene Law authorizes the Commis- Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Saratoga, Sche- sioner to issue operating certificates for the provision of chemical depen- nectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tomp- dence services. kins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 9 coun- (d) Section 32.01 of the Mental Hygiene Law authorizes the Commis- ties with certain townships have a population density of 150 persons or sioner to adopt any regulation reasonably necessary to implement and ef- less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, fectively exercise the powers and perform the duties conferred by Article Oneida, Onondaga and Orange. 32 of the Mental Hygiene Law. 2. Reporting, recordkeeping and other compliance requirements; and (f) Section 32.02 of the Mental Hygiene Law authorizes the Commis- professional services: sioner to adopt regulations necessary to ensure quality services to those The Purpose of this Part is to centralize in one Part definitions, ap- suffering from problem gambling. plicable statutes and publications incorporated by reference, and authoriza- (g) Section 32.07(a) of the Mental Hygiene Law authorizes the Com- tions applicable to all OASAS treatment modalities and regulations re- missioner to adopt regulations to effectuate the provisions and purposes of lated to the operations of the Office found in 14 NYCRR Chapter XXI. Article 32 of the Mental Hygiene Law. The regulation does not impose any new recordkeeping, compliance 2. Legislative Objectives: The Purpose of this Part is to centralize in requirements or professional services. one Part definitions, applicable statutes and publications incorporated by 3. Costs: reference, and authorizations applicable to all OASAS treatment modali- No additional costs will be incurred for implementation by providers ties and regulations related to the operations of the Office found in 14 because no additional capital investment, personnel or equipment is NYCRR Chapter XXI. needed. 3. Needs and Benefits: OASAS is proposing to adopt this regulation 4. Minimizing adverse impact: because accumulated changes in statutory requirements, language usage, The application of the rule will not impose additional costs or operating and applicability since 1992 when OASAS was established (Chapter 223 / requirements on providers in rural areas; therefore, it is designed on its laws of 1992), have increasingly caused inconsistencies in usage through- face to minimize adverse impact. out the Parts of Chapter XXI. 5. Rural area participation: 4. Costs: No additional administrative costs to the agency are antici- The proposed rule is posted on the agency website; agency review pro- pated; no additional costs to programs/providers are anticipated. cess involves input from trade organizations representing providers in di- 5. Paperwork: The proposed regulation will not require increased verse geographic locations. paperwork. Job Impact Statement 6. Local Government Mandates: There are no new local government A Job Impact Statement (JIS) is not being submitted with this notice mandates. because it is evident from the subject matter of the regulation that it will 7. Duplications: This proposed rule does not duplicate, overlap, or have no impact on jobs and employment opportunities. conflict with any State or federal statute or rule. 8. Alternatives: Continue adding repetitive definitions whenever a Part Assessment of Public Comment is amended or updated. The agency received no public comment. 9. Federal Standards: This regulation does not conflict with federal standards. EMERGENCY 10. Compliance Schedule: The regulations will be effective October 1, RULE MAKING 2015. Regulatory Flexibility Analysis Medical Assistance for Chemical Dependence Services 1. Effect of the rule: OASAS services are provided by programs of varying size in every I.D. No. ASA-36-15-00021-E county in New York State; some counties are also certified service Filing No. 1014 providers. The proposed Rule consolidates existing standards applicable Filing Date: 2015-11-23 to all OASAS programs of all sizes and on local governments if they are certified operators; additionally this regulation has been reviewed by the Effective Date: 2015-11-23 OASAS Advisory Council which consists of providers and stakeholders of all sizes and municipalities. PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- 2. Compliance requirements: cedure Act, NOTICE is hereby given of the following action: The proposed regulation consolidates existing standards applicable to Action taken: Amendment of Part 841 of Title 14 NYCRR. all programs. Programs compliance will be determined upon program certification. Statutory authority: Mental Hygiene Law, sections 19.07(e), 19.09(b), 3. Professional services: 32.01 and 32.07(a) Providers will require no new professional services; no professional Finding of necessity for emergency rule: Preservation of public health services will be lost. and public safety. 4. Compliance costs: Specific reasons underlying the finding of necessity: The immediate No additional professional services will be required by this new regula- adoption of this new Part is necessary for the preservation of the health, tion; nor will the proposed regulation add to the professional service needs safety, and welfare of individuals receiving services. October 1, 2015 the of local governments. There will be no disparate impact on providers based initial implementation of a major initiative of Governor Cuomo’s on location, size of business or municipality. Medicaid Redesign Team (MRT) – carve-in of behavioral health services 5. Economic and technological feasibility: into Medicaid Managed Care -- will begin in New York City; followed by No upgrades of hardware or software will be required; increasing the rest of the state in January 2016. The concurrent promulgation of Part electronic communications means any additional recordkeeping will be 841 (Medical Assistance for Chemical Dependence Services), Part 822 minimal regardless of geographic location. (Outpatient Services), Part 800 (General Provisions), and Part 820 (Resi- 6. Minimizing adverse impact: dential Services) is necessary because these regulations are foundational

2 NYS Register/December 9, 2015 Rule Making Activities to all OASAS treatment modalities affected by the Medicaid Managed (c) Section 19.40 of the Mental Hygiene Law authorizes the Commis- Care transition. sioner to issue operating certificates for the provision of chemical depen- To be effective by October 1, the earliest the proposed rules would have dence services. to have been submitted for publication for regular (non-emergency) adop- (d) Section 32.01 of the Mental Hygiene Law authorizes the Commis- tion (including the required 45-day public comment period provided for in sioner to adopt any regulation reasonably necessary to implement and ef- the State Administrative Procedure Act (SAPA) sections 201(1) and (5)) fectively exercise the powers and perform the duties conferred by Article no later than August 5; assuming no comments, the notices of adoption 32 of the Mental Hygiene Law. would have been published in the September 26 State Register. Amend- (f) Section 32.02 of the Mental Hygiene Law authorizes the Commis- ments to the texts related to federal Medicaid standards delayed publica- sioner to adopt regulations necessary to ensure quality services to those tion and necessitate emergency adoption. suffering from problem gambling. Therefore, emergency action is necessary for the preservation of the (g) Section 32.07(a) of the Mental Hygiene Law authorizes the Com- general welfare in order to immediately establish consistent standards in missioner to adopt regulations to effectuate the provisions and purposes of Part 841 applicable to all OASAS programs certified to provide outpatient Article 32 of the Mental Hygiene Law. and residential services and therefore to maximize newly available federal (h) Section 364 of the Social Service Law providers that each office Medicaid revenues for certain certified residential services. within the Department of Mental Health shall be responsible for establish- Subject: Medical Assistance for Chemical Dependence Services. ing and maintaining standards for medical care and services received in Purpose: Update for Medicaid managed care implementation; coordinate institutions operated by it or subject to its supervision pursuant to the with amendments to Parts 822, 820 and 800; technical amendments. mental hygiene law. Substance of emergency rule: The Proposed Rule Amends Part 841 (i) Section 23 of part C of chapter 58 of the laws of 2009, authorizes the (Medical Assistance for Chemical Dependence Services) to make techni- Commissioner to adopt and amend rules and regulations, subject to the ap- cal corrections and to accommodate the “carve-in” of behavioral health proval of the Commissioner of Health and the Director of the Budget, services into the Medicaid Managed Care system of service utilizing the Ambulatory Patient Group (APG) methodology for the reimbursement. Provisions previously in Part 841 related to Medicaid ser- purpose of establishing standards and methods of payments for chemical vices are moved into 14 NYCRR Part 841. Other Medicaid billing provi- dependence outpatient clinic services. sions subject to change beyond OASAS control have been removed from 2. Legislative Objectives: These amendments anticipate the “carve-in” this Part and made available on the agency website. of substance use disorder treatment services (now known as “chemical de- Section 841.1 is a statement of background and intent. pendence treatment services”) and other behavioral health services into § 841.2 sets forth the legal basis for regulatory action and other statu- the Medicaid Managed Care system of service reimbursement. Provisions tory authorizations required for methods of payments made by govern- previously in Part 822 related to Medicaid services are moved into 14 ment agencies. NYCRR Part 841. Other Medicaid billing provisions subject to change be- § 841.3 states the regulation’s applicability to eligible providers. yond OASAS control have been removed from this Part and made avail- § 841.4 sets forth definitions applicable to this Part; makes technical able on the agency website. Part 841 was last amended in 2011 to amendments; and removes expired provisions. In conjunction with incorporate the implementation of Ambulatory Patient Groups billing and proposed concurrent amendments to 14 NYCRR Part 800, definition of reimbursement methodology (APGs) for Chemical Dependence Outpatient “Office” was removed to reduce page length and redundancy. and Opioid Treatment Programs in the Medicaid program and provide § 841.5 sets forth requirements for financial and statistical reporting. clear guidance regarding Medicaid billing and related party transactions; Technical amendments only. APGs are being phased out. § 841.6 is a non-discrimination clause; no amendments. 3. Needs and Benefits: Amendments to this regulation are necessary to § 841.7 sets forth recordkeeping requirements; no amendments. accommodate amendments to Part 822 wherein provisions related to § 841.8 relates to billing standards; no amendments. Medicaid billing were deleted from that regulation to reduce number of § 841.9 is a statement of compliance with general medical assistance pages and added to Part 841. Other Medicaid billing provisions subject to program requirements; no amendments. change beyond OASAS control have been removed from this Part and § 841.10 relates to medical assistance payments for chemical depen- made available on the agency website. Technical amendments also correct dence inpatient services. Removes references to short term residential numbering. treatment for adolescents; adds residential service providers and residen- 4. Costs: No additional administrative costs to the agency are antici- tial services under 16-beds (Part 819 and Part 820 currently being drafted); pated; no additional costs to programs/providers are anticipated. other technical amendments. 5. Paperwork: The proposed regulation will add no new paperwork § 841.11 relates to medical assistance payments for inpatient medically requirements. supervised withdrawal services; no amendments. 6. Local Government Mandates: There are no new local government § 841.12 relates to medical assistance payments for residential rehab mandates. services for youth; technical amendments. 7. Duplications: This proposed rule does not duplicate, overlap, or § 841.13 relates to audits and revisions to rates for inpatient rehabilita- conflict with any State or federal statute or rule. tion services and fees and fee add-ons for residential rehabilitation ser- 8. Alternatives: The current regulation would not be consistent with vices for youth services; technical amendments. amendments to 14 NYCRR Part 822, 820 and 800. § 841.14 relates to Medical assistance payments for chemical depen- 9. Federal Standards: Federal standards governing Medicaid require- dence outpatient and opioid treatment programs. Technical amendments ments for these services are found at 42 Code of Federal Regulations Sec- and removed APG categories subject to change from regulation and tion 441.150 et seq. These amendments do not exceed any minimum stan- indicate posting on agency website. Added provisions deleted from dard of the federal government for the same or similar subject areas. amendments to Part 822 regarding APG billing services. 10. Compliance Schedule: The regulations will be effective October 1, § 841.15 relates to capital costs; technical amendments. 2015. However, all standards of Medical Assistance reimbursement ap- § 841.16 regulates related party transactions; no amendments. plicable to chemical dependence treatment programs shall be contingent § 841.17 is a standard severability clause; no amendments. on approval the state plan amendment associated with federal financial This notice is intended to serve only as a notice of emergency adoption. participation. This agency intends to adopt the provisions of this emergency rule as a Regulatory Flexibility Analysis permanent rule, having previously submitted to the Department of State a 1. Effect of the rule: notice of proposed rule making, I.D. No. ASA-36-15-00021-EP, Issue of OASAS services are provided by programs of varying size in every September 9, 2015. The emergency rule will expire December 9, 2015. county in New York State; some counties are also certified service Text of rule and any required statements and analyses may be obtained providers. The proposed Rule has been reviewed by OASAS in consider- from: Sara Osborne, Associate Attorney, NYS OASAS, 1450 Western ation of its impact on service providers of all sizes and on local govern- Ave., Albany, NY 12203, (518) 485-2317, email: ments, whether or not they are certified operators; additionally this regula- [email protected] tion has been reviewed by the OASAS Advisory Council which consists Regulatory Impact Statement of providers and stakeholders of all sizes and municipalities. 1. Statutory Authority: 2. Compliance requirements: (a) Section 19.07(e) of the Mental Hygiene Law authorizes the Com- Regardless of program size, it is anticipated that there will be no new missioner (“Commissioner”) of the Office to adopt standards including reporting or recordkeeping imposed on local governments or small necessary rules and regulations pertaining to chemical dependence businesses. There are no new mandates or administrative requirements services. placed on local governments. (b) Section 19.09(b) of the Mental Hygiene Law authorizes the Com- 3. Professional services: missioner to adopt regulations necessary and proper to implement any No new or additional professional services are required in order to matter under his or her jurisdiction. comply with the proposed amendments.

3 Rule Making Activities NYS Register/December 9, 2015

4. Compliance costs: (Outpatient Services), and Part 841 (Medical Assistance for Chemical De- No new or additional costs are anticipated in order to comply with the pendence Services) is necessary because these regulations are all related proposed amendments. There will be no impact on costs to local to the implementation of Medicaid Managed Care. governments. To be effective by October 1, the earliest the proposed rules would have 5. Economic and technological feasibility: to have been submitted for publication for regular (non-emergency) adop- Small businesses will be able to comply with the economic and tion (including the required 45-day public comment period provided for in technological aspects of this rule. the State Administrative Procedure Act (SAPA) sections 201(1) and (5)) 6. Minimizing adverse impact: no later than August 5; assuming no comments, the notices of adoption No adverse impact is anticipated. would have been published in the September 26 State Register. Amend- 7. Small business and local government participation: ments to the texts related to federal Medicaid standards delayed publica- The proposed rule is posted on the agency website; agency review pro- tion and necessitate emergency adoption. cess involves input from trade organizations representing providers in Therefore, emergency action is necessary for the preservation of the general welfare in order to immediately establish provisions applicable to both public and private sectors, of all sizes and in diverse geographic OASAS residential programs and therefore to maximize newly available locations. federal Medicaid revenues for certain certified residential services. 8. Not applicable. (establish or modify a violation or penalties associated with a violation) Subject: Residential services. Rural Area Flexibility Analysis Purpose: Residential services restructured for Medicaid managed care 1. Rural areas in which the rule will apply (types and estimated number and Medicaid redesign. of rural areas): OASAS services are provided in every county in New Substance of emergency rule: This Rulemaking proposes a new Part 820 York State. 44 counties have a population less than 200,000: Allegany, (“Residential Services”) added to 14 NYCRR to facilitate restructuring of Cattaraugus, Cayuga, Chautauqua, Chemung, Chenango, Clinton, Colum- OASAS residential programs in response to goals of Gov. Cuomo’s bia, Cortland, Delaware, Essex, Franklin, Fulton, Genesee, Greene, Medicaid Redesign Team (MRT) in order to realize more efficient and ef- Hamilton, Herkimer, Jefferson, Lewis, Livingston, Madison, Montgomery, fective use of state run and state authorized treatment resources, and in re- Ontario, Orleans, Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, sponse to the transition of state authorized Medicaid payments for Saratoga, Schenectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, substance use disorder treatment from fee-for-service to managed care. Tioga, Tompkins, Ulster, Warren, Washington, Wayne, Wyoming and Section 820.1 sets forth the legal authorization in the Mental Hygiene Yates. 9 counties with certain townships have a population density of 150 Law for promulgation of this Rule. persons or less per square mile: Albany, Broome, Dutchess, Erie, Monroe, § 820.2 designates programs to which this rule would apply. Niagara, Oneida, Onondaga and Orange. § 820.3 sets forth definitions applicable to residential services and the 2. Reporting, recordkeeping and other compliance requirements; and corresponding elements of recovery: stabilization, rehabilitation, and com- professional services: There will be no new reporting or recordkeeping munity reintegration. imposed on providers in rural areas as a result of these amendments. No § 820.4 relates to assignment of services pursuant to OASAS statutory new professional services are required; no professional services will be and regulatory requirements for certification of treatment programs (14 lost. NYCRR Part 810). 3. Costs: No additional costs will be incurred for implementation by § 820.5 sets forth general standards for all programs certified to provide providers because no additional capital investment, personnel or equip- residential services. ment is needed. § 820.6 describes Staffing requirements for all programs certified to 4. Minimizing adverse impact: The application of the rule will not provide residential services. impose additional costs or operating requirements on providers in rural ar- § 820.7 sets forth requirements and standards for admission, screening eas; therefore, it is designed on its face to minimize adverse impact. and assessment of residents. 5. Rural area participation: The proposed rule is posted on the agency § 820.8 relates to requirements for development of a treatment/recovery website; agency review process involves input from trade organizations or service plan for each residential service. representing providers in diverse geographic locations. § 820.9 relates to discharge requirements. Job Impact Statement § 820.10 describes additional requirements for stabilization services in a residential setting related to program services and staffing. OASAS is not submitting a Job Impact Statement because it is evident § 820.11 sets forth additional requirements for rehabilitation services in from the subject matter of the regulation that it will have no impact on a residential setting related to program services and staffing. jobs and employment opportunities. § 820.12 sets forth additional requirements for reintegration in a resi- Assessment of Public Comment dential setting related to program services and staffing. The agency received no public comment since publication of the last as- § 820.13 sets forth Standards pertaining to Medicaid reimbursement. sessment of public comment. § 820.14 is a standard Severability clause. This notice is intended to serve only as a notice of emergency adoption. EMERGENCY This agency intends to adopt the provisions of this emergency rule as a RULE MAKING permanent rule, having previously submitted to the Department of State a notice of proposed rule making, I.D. No. ASA-36-15-00022-EP, Issue of Residential Services September 9, 2015. The emergency rule will expire December 9, 2015. Text of rule and any required statements and analyses may be obtained I.D. No. ASA-36-15-00022-E from: Sara Osborne, Associate Attorney, NYS OASAS, 1450 Western Filing No. 1011 Ave., Albany, NY 12203, (518) 485-2317, email: Filing Date: 2015-11-23 [email protected] Regulatory Impact Statement Effective Date: 2015-11-23 1. Statutory Authority: (a) Section 19.07(e) of the Mental Hygiene Law authorizes the Com- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- missioner of the Office of Alcoholism and Substance Abuse Services to cedure Act, NOTICE is hereby given of the following action: adopt standards including necessary rules and regulations pertaining to Action taken: Addition of Part 820 to Title 14 NYCRR. chemical dependence services. (b) Section 19.09(b) of the Mental Hygiene Law authorizes the Com- Statutory authority: Mental Hygiene Law, sections 19.07(e), 19.09(b), missioner of the Office of Alcoholism and Substance Abuse Services to 32.01 and 32.07(a) adopt regulations necessary and proper to implement any matter under his Finding of necessity for emergency rule: Preservation of public health or her jurisdiction. and general welfare. (c) Section 19.40 of the Mental Hygiene Law authorizes the Commis- Specific reasons underlying the finding of necessity: The immediate sioner of the Office of Alcoholism and Substance Abuse Services to issue adoption of this new Part is necessary for the preservation of the health, operating certificates for the provision of chemical dependence services. safety, and welfare of individuals receiving services. October 1, 2015 the (d) Section 32.01 of the Mental Hygiene Law authorizes the Commis- initial implementation of a major initiative of Governor Cuomo’s sioner of the Office of Alcoholism and Substance Abuse Services to adopt Medicaid Redesign Team (MRT) – carve-in of behavioral health services any regulation reasonably necessary to implement and effectively exercise into Medicaid Managed Care -- will begin in New York City; followed by the powers and perform the duties conferred by Article 32 of the Mental the rest of the state in January 2016. The concurrent promulgation of Part Hygiene Law. 820 (Residential Services), Part 800 (General Provisions), Part 822 (e) Section 32.07(a) of the Mental Hygiene Law authorizes the Com-

4 NYS Register/December 9, 2015 Rule Making Activities missioner of the Office of Alcoholism and Substance Abuse Services to ties with certain townships have a population density of 150 persons or adopt regulations to effectuate the provisions and purposes of Article 32 less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, of the Mental Hygiene Law. Oneida, Onondaga and Orange. (f) Section 220.78 of the Penal Law affords limited protections from 2. Reporting, recordkeeping and other compliance requirements; and prosecution for persons seeking medical attention for accidental overdose. professional services: (g) Section 3309 of the Public Health Law authorizes the Department of The proposed regulation accomplishes the restructuring of OASAS res- Health to establish standards for approval of any opioid overdose preven- idential services as a goal set by Gov. Cuomo’s Medicaid Redesign Team tion program. (MRT) in order to realize more efficient and effective use of state run and 2. Legislative Objectives: The Purpose of adding this new Part is to ac- state authorized treatment resources n response to the transition of state complish restructuring of OASAS residential services as a goal set by authorized Medicaid payments for substance use disorder treatment from Gov. Cuomo’s Medicaid Redesign Team (MRT) in order to realize more fee-for-service to managed care. Residential services providers will not be efficient and effective use of state run and state authorized treatment re- required to add professional services or increase recordkeeping and report- sources, and in response to the transition of state authorized Medicaid ing beyond what they already provide for residential services. payments for substance use disorder treatment from fee-for-service to 3. Costs: managed care. No additional costs will be incurred for implementation by providers 3. Needs and Benefits: OASAS is proposing to adopt this regulation because no additional capital investment, personnel or equipment is because clinical, statutory and policy changes in delivery of behavioral needed. health care services at the state and federal level require the implementa- 4. Minimizing adverse impact: tion of regulatory revisions in order to realize the efficiencies and op- The application of the rule will not impose additional costs or operating portunities available to OASAS certified providers. requirements on providers in rural areas; therefore, it is designed on its 4. Costs: No additional administrative costs to the agency are antici- face to minimize adverse impact. pated; no additional costs to programs/providers are anticipated. 5. Rural area participation: 5. Paperwork: The proposed regulation will not require increased The proposed rule is posted on the agency website; agency review pro- paperwork. cess involves input from trade organizations representing providers in di- 6. Local Government Mandates: There are no new local government verse geographic locations. The Office has prepared webinars and guid- mandates. ance documents for provider use and for training of agency administration. 7. Duplications: This proposed rule does not duplicate, overlap, or Job Impact Statement conflict with any state or federal statute or rule. No change in the number of jobs and employment opportunities is 8. Alternatives: No reasonable alternatives exist. anticipated as a result of the proposed new regulation because the amend- 9. Federal Standards: This regulation does not conflict with federal ments either clarify or streamline provider actions which will not be standards. eliminated or supplemented. Treatment providers already providing resi- 10. Compliance Schedule: The regulations will be effective October 1, dential services will not need to hire additional staff or reduce staff size; 2015. the proposed changes will not adversely impact jobs outside of the agency; Regulatory Flexibility Analysis the proposed changes will not result in the loss of any jobs within New 1. Effect of the rule: York State. OASAS services are provided by programs of varying size in every Assessment of Public Comment county in New York State; some counties are also certified service providers. The proposed Rule has been reviewed by OASAS in consider- The agency received no public comment. ation of its impact on service providers of all sizes and on local govern- EMERGENCY ments, whether or not they are certified operators; additionally this regulation has been reviewed by the OASAS Advisory Council which consists RULE MAKING of providers and stakeholders of all sizes and municipalities. 2. Compliance requirements: General Service Standards for Chemical Dependence Outpatient The proposed regulation implements recommendations of the gover- (CD-OP) and Opioid Treatment Programs (OTP) nor’s Medicaid Redesign Team including Medicaid Managed Care for behavioral health services. Programs compliance will be determined upon I.D. No. ASA-36-15-00023-E program certification. Filing No. 1013 3. Professional services: Providers will require no new professional services; no professional Filing Date: 2015-11-23 services will be lost. Residential services are already being provided. Effective Date: 2015-11-23 4. Compliance costs: No additional professional services will be required by this new regula- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- tion; nor will the proposed regulation add to the professional service needs cedure Act, NOTICE is hereby given of the following action: of local governments. There will be no disparate impact on providers based on location, size of business or municipality. Action taken: Repeal of Part 822; and addition of new Part 822 to Title 14 5. Economic and technological feasibility: NYCRR. No upgrades of hardware or software will be required; increasing Statutory authority: Mental Hygiene Law, sections 19.07(e), 19.09(b), electronic communications means any additional recordkeeping will be 32.01 and 32.07(a) minimal regardless of geographic location. Finding of necessity for emergency rule: Preservation of public health, 6. Minimizing adverse impact: public safety and general welfare. The application of the rule will not impose additional costs or operating Specific reasons underlying the finding of necessity: The immediate requirements on providers on local governments or small businesses; adoption of this new Part is necessary for the preservation of the health, therefore, it is designed on its face to minimize adverse impact. safety, and welfare of individuals receiving services. October 1, 2015 the 7. Small business and local government participation: initial implementation of a major initiative of Governor Cuomo’s The proposed rule is posted on the agency website; agency review pro- Medicaid Redesign Team (MRT) – carve-in of behavioral health services cess involves input from trade organizations representing providers in into Medicaid Managed Care -- will begin in New York City; followed by both public and private sectors, of all sizes and in diverse geographic the rest of the state in January 2016. This transition also coincides with the locations. The Office has prepared webinars and guidance documents for phase out of ambulatory patient groups (APG) payment methodology provider use and for training of agency administration. reflected in the previous Part 822. The concurrent promulgation of Part Rural Area Flexibility Analysis 822 (Outpatient Services), Part 800 (General Provisions), Part 820 (Resi- 1. Types and estimated number of rural areas: dential Services) and Part 841 (Medical Assistance for Chemical Depen- OASAS services are provided in every county in New York State. 44 dence Services) is necessary because these regulations are foundational to counties have a population less than 200,000: Allegany, Cattaraugus, all OASAS treatment modalities affected by the Medicaid Managed Care Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, transition. Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, To be effective by October 1, the earliest the proposed rules would have Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, to have been submitted for publication for regular (non-emergency) adop- Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Saratoga, Sche- tion (including the required 45-day public comment period provided for in nectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tomp- the State Administrative Procedure Act (SAPA) sections 201(1) and (5)) kins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 9 coun- no later than August 5; assuming no comments, the notices of adoption

5 Rule Making Activities NYS Register/December 9, 2015 would have been published in the September 26 State Register. Amend- medication administration, regulation of take-home medications, volun- ments to the texts related to federal Medicaid standards delayed publica- tary and involuntary tapers, provisions for diversion control, and program tion and necessitate emergency adoption. participation in the central registry maintained by the Office to track Therefore, emergency action is necessary for the preservation of the patients receiving opioid treatment. general welfare in order to immediately establish consistent standards in § 822.17 is a standard severability clause. Part 822 applicable to all OASAS programs certified to provide outpatient This notice is intended to serve only as a notice of emergency adoption. services and therefore to maximize newly available federal Medicaid This agency intends to adopt the provisions of this emergency rule as a revenues for certain certified residential services. permanent rule, having previously submitted to the Department of State a Subject: General Service Standards for Chemical Dependence Outpatient notice of proposed rule making, I.D. No. ASA-36-15-00023-EP, Issue of (CD-OP) and Opioid Treatment Programs (OTP). September 9, 2015. The emergency rule will expire December 9, 2015. Purpose: Amend to accommodate Medicaid managed care and Medicaid Text of rule and any required statements and analyses may be obtained from: Sara Osborne, Associate Attorney, NYS OASAS, 1450 Western redesign; phase out APGs; amendments to Part 800. Ave., Albany, NY 12203, (518) 485-2317, email: Substance of emergency rule: The Proposed Rule Repeals Part 822 [email protected] (Chemical Dependence Outpatient and Opioid Treatment Programs; ef- Regulatory Impact Statement fective July 1, 2011) and Adds a New Part 822. The current Part 822 was 1. Statutory Authority: substantially rewritten in 2011 to accommodate implementation of the (a) Section 19.07(e) of the Mental Hygiene Law authorizes the Com- Ambulatory Patient Group (APG) billing and reimbursement missioner (“Commissioner”) of the Office to adopt standards including methodology. In addition that revision incorporated provisions related to necessary rules and regulations pertaining to chemical dependence opioid treatment programs, which are also outpatient treatment, from a services. previously separate and distinct Part 828. This current revision anticipates (b) Section 19.09(b) of the Mental Hygiene Law authorizes the Com- the “carve-in” of chemical dependence treatment services (now known as missioner to adopt regulations necessary and proper to implement any “substance use disorder services”) and other behavioral health services matter under his or her jurisdiction. into the Medicaid Managed Care system of service reimbursement. (c) Section 19.40 of the Mental Hygiene Law authorizes the Commis- Section 822.1 is a statement of background. sioner to issue operating certificates for the provision of chemical depen- § 822.2 sets forth the legal basis for regulatory action and other statu- dence services. tory authorizations required for medication assisted treatment. (d) Section 32.01 of the Mental Hygiene Law authorizes the Commis- § 822.3 states the regulation’s applicability to chemical dependence sioner to adopt any regulation reasonably necessary to implement and ef- outpatient programs (CD-OPs) and such outpatient programs known as fectively exercise the powers and perform the duties conferred by Article opioid treatment programs (CD-OTPs). 32 of the Mental Hygiene Law. § 822.4 is a savings and renewals clause for purposes of a transition pe- (e) Section 32.02 of the Mental Hygiene Law authorizes the Commis- riod for issuance of program operating certificates. sioner to adopt regulations necessary to ensure quality services to those § 822.5 sets forth definitions uniquely applicable to this Part. In suffering from problem gambling conjunction with proposed concurrent amendments to 14 NYCRR Part (f) Section 32.07(a) of the Mental Hygiene Law authorizes the Com- 800, some definitions were removed to reduce page length and redundancy missioner to adopt regulations to effectuate the provisions and purposes of (ie, “commissioner,” “governing authority” or “sponsor,” “Medical Direc- Article 32 of the Mental Hygiene Law. tor,” “clinical staff,” “peer advocate,” “student intern,” “prescribing 2. Legislative Objectives: The Proposed Rule Repeals Part 822 (Chemi- professional”). Significant definitions unique to this Part include, for cal Dependence Outpatient and Opioid Treatment Programs; effective example: “accrediting body,” “central registry system,” “complex care July 1, 2011) and adds a new Part 822. The current Part 822 was substan- coordination,” “continuing care treatment,” “intensive outpatient ser- tially rewritten in 2011 to accommodate implementation of the Ambula- vices,” “opioid detoxification,” and “opioid taper.” tory Patient Group (APG) billing and reimbursement methodology. In ad- § 822.6 sets forth minimum standards pertaining to Medicaid reimburse- dition that revision incorporated provisions related to opioid treatment ment (specific enumerated services are identified in 14 NYCRR Part 841) programs, which are also outpatient treatment, from a previously separate such as services which, by themselves, are not Medicaid reimbursable. and distinct Part 828. § 822.7 details general program standards applicable to both CD-OPs This current revision anticipates the “carve-in” of substance use disor- and CD-OTPs or to a specific modality. These standards include require- der treatment services (now known as “chemical dependence treatment ments for policies and procedures, emergency medical kits on-site, utiliza- services”) and other behavioral health services into the Medicaid Man- tion review, minimum required services, staffing, hours of operation, and aged Care system of service reimbursement. Provisions previously in this optional services. Part that are related to Medicaid services are moved into 14 NYCRR Part § 822.8 relates to admission, initial services, transfers and readmission 841 (“Medical Assistance for Chemical Dependence Services”). In requirements for all programs and some requirements specific to CD-OPs conjunction with the revisions also proposed to 14 NYCRR Part 800, this or CD-OTPs. Requirements include pre-admission testing, timing of a de- revision reduces the page length of the existing regulation and updates and cision to admit, initial medications, patient orientation, documentation aligns significant definitions used throughout the other Parts of Chapter required for transfers or readmissions. XXI. § 822.9 relates to the development, documentation, implementation and 3. Needs and Benefits: periodic review of the patient-specific treatment/recovery plan; also This regulation responds to the needs and expectations of a changing indicates special requirements for pregnant patients required by federal service delivery landscape for OASAS providers, substantially altered by block grant. the anticipated “carve-in” of behavioral health services into Medicaid § 822.10 relates to minimum requirements for preparation and mainte- Managed Care (on/about October 2015), implementation of certain recom- nance of case records applicable to all programs. Standards include mendations of the NYS Medicaid Redesign Team (MRT) and aspects of periodic review, discharge plans, document retention, transfers, patient the federal Affordable Care Act (ACA) such as Behavioral Health deaths, and confidentiality. Organizations (BHOs), Preferred Provider Organizations (PPOs) and other § 822.11 includes minimum standards for documentation of services integrative health care delivery restructurings. Driving many of these including required signatures, content and date of service. developments is the demand for provider outcome measures and § 822.12 relates to discharge planning including minimum criteria, tim- accountability. Providers will receive and retain operating certificates ing of a required discharge summary, requirement for patient participation increasingly based on demonstrated results of their clinical decisions and in the development of a discharge plan and special requirements for dis- treatment methods rather than on rote compliance with prescriptive rules charge of minors pursuant to mental hygiene law § 22.11. and regulations. § 822.13 relates to a continuing care which is a service unique to CD- The proposed amendments are less prescriptive with the intent of not OPs. Continuing care requires a discharge from active treatment and boxing in providers to comply with narrow regulatory requirements in an subsequent admission to continuing care with limitations on the amount increasingly integrated behavioral health/physical health service delivery and types of services available to support continued recovery. marketplace. OASAS is also proposing to adopt this regulation because § 822.14 regulates additional locations of a primary CD-OP location by changes in statutory requirements, language usage and applicability, and restricting location in relation to the primary site, extent of services, and issuance of the fifth edition of the Diagnostic and Statistical Manual (DSM requirement for certification. V) since OASAS was consolidated (chapter 223 of the laws of 1992) have § 822.15 identifies additional requirements for chemical dependence increasingly created inconsistencies throughout Parts of Chapter XXI. outpatient rehabilitation services in CD-OPs designated to provide such 4. Costs: No additional administrative costs to the agency are antici- services. Special requirements relate to staffing, type and frequency of pated; no additional costs to programs/providers are anticipated. services, and meals. 5. Paperwork: The proposed regulation will add no new paperwork § 822.16 identifies additional standards unique to CD-OTPs including requirements.

6 NYS Register/December 9, 2015 Rule Making Activities

6. Local Government Mandates: There are no new local government 5. Rural area participation: mandates. The proposed rule is posted on the agency website; agency review pro- 7. Duplications: This proposed rule does not duplicate, overlap, or cess involves input from trade organizations representing providers in di- conflict with any State or federal statute or rule. verse geographic locations. The Office has prepared webinars and guid- 8. Alternatives: The current regulation would not be consistent with ance documents for provider use and for training of agency administration. changes in health care delivery; new regulation is the only alternative. Job Impact Statement 9. Federal Standards: This regulation does not conflict with federal standards. No change in the number of jobs and employment opportunities is 10. Compliance Schedule: The regulations will be effective October 1, anticipated as a result of the proposed new regulation because the amend- 2015. ments either clarify or streamline provider actions which will not be Regulatory Flexibility Analysis eliminated or supplemented. Treatment providers already providing resi- 1. Effect of the rule: dential services will not need to hire additional staff or reduce staff size; OASAS services are provided by programs of varying size in every the proposed changes will not adversely impact jobs outside of the agency; county in New York State; some counties are also certified service the proposed changes will not result in the loss of any jobs within New providers. The proposed Rule has been reviewed by OASAS in consider- York State. ation of its impact on service providers of all sizes and on local governments, whether or not they are certified operators; additionally this regula- Assessment of Public Comment tion has been reviewed by the OASAS Advisory Council which consists The agency received no public comment. of providers and stakeholders of all sizes and municipalities. 2. Compliance requirements: EMERGENCY The proposed regulation implements recommendations of the gover- RULE MAKING nor’s Medicaid Redesign Team including Medicaid Managed Care for behavioral health services and transition from ambulatory patient group Incident Reporting in Oasas Certified, Licensed, Funded, or (APG) payment methodology. Compliance will be determined upon recertification reviews. Operated Services 3. Professional services: I.D. No. ASA-37-15-00001-E Providers will require no new professional services; no professional Filing No. 1015 services will be lost. Outpatient services are already being provided. 4. Compliance costs: Filing Date: 2015-11-23 No additional professional services will be required by this new regula- Effective Date: 2015-11-23 tion; nor will the proposed regulation add to the professional service needs of local governments. There will be no disparate impact on providers based PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- on location, size of business or municipality. 5. Economic and technological feasibility: cedure Act, NOTICE is hereby given of the following action: No upgrades of hardware or software will be required; increasing Action taken: Repeal of Part 836; and addition of new Part 836 to Title 14 electronic communications means any additional recordkeeping will be NYCRR. minimal regardless of geographic location. Statutory authority: Mental Hygiene Law, sections 19.09(b), 19.20, 6. Minimizing adverse impact: The application of the rule will not 19.20-a, 19.40 and 32.02; Executive Law, section 296(15) and (16); Cor- impose additional costs or operating requirements on providers on local rections Law, art. 23-A; Civil Service Law, section 50; Protection of governments or small businesses; therefore, it is designed on its face to People with Special Needs Act (L. 2012, ch. 501) minimize adverse impact. Finding of necessity for emergency rule: Preservation of public health, 7. Small business and local government participation: public safety and general welfare. The proposed rule is posted on the agency website; agency review process involves input from trade organizations representing providers in Specific reasons underlying the finding of necessity: The immediate both public and private sectors, of all sizes and in diverse geographic adoption of these amendments is necessary for the preservation of the locations. The Office has prepared webinars and guidance documents for health, safety, and welfare of individuals receiving services. provider use and for training of agency administration. In December, 2012 Governor Andrew Cuomo signed the Protection of People with Special Needs Act (PPSNA; chapter 501 of the Laws of 2012); Rural Area Flexibility Analysis the statute created the Justice Center for the Protection of People with 1. Rural areas in which the rule will apply (types and estimated number Special Needs (Justice Center) establishing various protections for vulner- of rural areas): able persons, i.e., a new system for incident management in services oper- OASAS services are provided in every county in New York State. 44 ated or certified by OASAS; investigation of allegations of abuse and ne- counties have a population less than 200,000: Allegany, Cattaraugus, glect and significant incidents; and new requirements for pre-employment Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, background checks in OASAS certified and operated service providers, Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, persons credentialed by the Office, and applicants for new operating Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, certificates. Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Saratoga, Sche- The amendments to Part 836, effective June 30, 2013 and subsequently nectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tomp- September 25, 2013, December 20, 2013, March 20, 2014, June 17, 2014, kins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 9 coun- September 12, 2014, December 14, 2014, March 14, 2015, June 12, 2015 ties with certain townships have a population density of 150 persons or and August 26, 2015 are necessary to implement the incident reporting less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, and management provisions required by the statute and to ensure compli- Oneida, Onondaga and Orange. ance with the criminal history background check provisions to further 2. Reporting, recordkeeping and other compliance requirements; and enhance patient safety. professional services: The promulgation of these regulations is essential to preserve the health, The proposed regulation is related to the restructuring of OASAS resi- safety and welfare of individuals receiving services within the OASAS dential services as a goal set by Gov. Cuomo’s Medicaid Redesign Team treatment system. If OASAS did not promulgate regulations to report and (MRT) in order to realize more efficient and effective use of state run and manage incidents of abuse and neglect or other significant incidents, these state authorized treatment resources in response to the transition of state requirements would not be implemented or would be implemented authorized Medicaid payments for substance use disorder treatment from ineffectively. Further, protections for individuals receiving services would fee-for-service to managed care and the phase out of ambulatory patient be threatened by the confusion resulting from similar functions performed groups (APGs) as a payment methodology. Outpatient service providers but differing among the other agencies covered by the Justice Center. will not be required to add professional services or increase recordkeeping OASAS was not able to use the regular rulemaking process established and reporting beyond what they already provide for residential services. by the State Administrative Procedure Act because there was not suf- 3. Costs: ficient time to develop and promulgate regulations within the necessary No additional costs will be incurred for implementation by providers timeframes. because no additional capital investment, personnel or equipment is needed. Subject: Incident Reporting in Oasas Certified, Licensed, Funded, or 4. Minimizing adverse impact: Operated Services. The application of the rule will not impose additional costs or operating Purpose: To enhance protections for service recipients in the OASAS requirements on providers in rural areas; therefore, it is designed on its system. face to minimize adverse impact. Substance of emergency rule: The Proposed Rule would Repeal the cur-

7 Rule Making Activities NYS Register/December 9, 2015 rent Part 836 and Replace it with a new Part 836. The new Part incorporates (e) Section 19.40 of the Mental Hygiene Law authorizes the Commis- amendments related to incident reporting consistent with statutory require- sioner to issue operating certificates for the provision of chemical depen- ments, definitions and procedures of the Justice Center, pursuant to the dence services. Protection of People with Special Needs Act (Chapter 501 of the Laws of (f) Subdivisions (15) and (16) of Section 296 of the Executive Law 2012). identify unlawful discriminatory practices with regard to the employment The Proposed Rule also makes technical amendments to standardize and the issuance of licenses. formatting for all Office regulations. Amendments related to the Justice (g) Civil Service Law § 50 authorizes the Department of Civil Service Center include: to request criminal history checks for applicants for state employment. Section 836.1 sets forth the background and intent and adds language (h) Article 23-A of the Corrections Law provides the factors to be referencing the purpose for establishing the Justice Center and for considered concerning a person’s previous criminal convictions in making coordinating agency incident reviews with the Justice Center. a determination regarding employment and the issuance of a license. § 836.2 sets forth the statutory authority for the promulgation of the 2. Legislative Objectives: rule by the Office of Alcoholism and Substance Abuse Services (“Of- The legislative objectives are the establishment of comprehensive fice”); adds The Protection of People with Special Needs Act; removes re- protections for vulnerable persons against abuse, neglect and other harm- pealed statutes; adds the Vulnerable Persons Central Register in § 492 of ful conduct. The Act created a Justice Center with responsibilities for ef- the social services law. fective incident reporting and investigation systems, fair disciplinary § 836.3 amends applicability of this Part to be consistent with Justice processes, informed and appropriate staff hiring procedures, and strength- Center statute and regulations. ened monitoring and oversight systems. § 836.4 adds new definitions or amends to be consistent with the Justice The Justice Center operates a 24/7 hotline for reporting allegations of Center: “Reportable incident”, “physical abuse”, “psychological abuse”, abuse, neglect and significant incidents in accordance with Chapter 501’s “deliberate inappropriate use of restraints”, “use of aversive condition- provisions for uniform definitions, mandatory reporting and minimum ing”, “obstruction of reports of reportable incidents”, “unlawful use or standards for incident management programs. Working in collaboration administration of a controlled substance,” “neglect”, “significant incident”, with the relevant state oversight agencies, the Justice Center is charged “custodian”, “facility or provider agency”, “mandated reporter”, “human with developing and delivering appropriate training for caregivers, their services professional”, “physical injury”, “delegate investigatory entity”, supervisors and investigators. “Justice Center”, “Person receiving services,”, “Personal representative,” A vulnerable persons’ central register contains the names of individuals “Abuse or neglect”, “subject of the report,” “other persons named in the found to have committed substantiated acts of abuse or neglect using a report,” “Vulnerable Persons Central Register,” “vulnerable person”, preponderance of evidence standard. All persons found to have committed “intentionally and recklessly”, “clinical records”, “Incident management such acts have the right to a hearing before an administrative law judge to programs”, “Incident report”, “Missing client”, “qualified person”, “staff”, challenge those findings Persons having committed egregious or repeated “Incident review Committee”. acts of abuse or neglect are prohibited from future employment caring for § 836.5 adds requirements for providers of services’ policies and vulnerable persons, and may be subject to criminal prosecution. Less seri- procedures related to, and implementation of, an Incident Management ous acts of misconduct are subject to progressive discipline and retraining. Program consistent with the requirements of Chapter 501 of the Laws of Applicants with criminal records who seek employment serving vulner- 2012. able persons will be individually evaluated as to suitability for such § 836.6 adds requirements for incident reporting, notice and investiga- positions. tion to incorporate changes in processes necessitated by Chapter 501 of 3. Needs and Benefits: the Laws of 2012. OASAS is proposing to adopt the following regulation because The § 836.7 adds requirements for additional notice and reporting require- Protection of People with Special Needs Act (Chapter 501 of the Laws of ments for reportable and significant incidents necessitated by Chapter 501 2012) requires that allegations of abuse and neglect, and other significant of the Laws of 2012 such as: reporting “immediately” upon discovery of incidents be reported to the Justice Center Vulnerable Persons Central an incident; required reporting to the Justice Center Vulnerable Persons Register via the toll free hotline. This legislation conforms OASAS regula- Central Register, Office and regional Field Office; includes all “custodi- tions to definitions, incident reporting, documentation and review require- ans” as “mandated reporters” for purposes of this regulation. ments of the Justice Center. The legislation strengthens the role of the § 836.8 adds requirements for configuration of Incident Review Com- Incident Review Committee and links compliance with reporting and mittees consistent with requirements of Chapter 501 of the Laws of 2012. investigating incidents to a providers operating certificate renewal. Crimi- § 836.9 adds requirements for recordkeeping and release of records to nal history information reviews will be conducted on each prospective qualified persons consistent with requirements of Chapter 501 of the Laws treatment provider, operator, employee, contractor, or volunteer of treat- of 2012. ment facilities certified by the NYS Office of Alcoholism and Substance § 836.10 adds to a provider’s duty to cooperate regarding inspection of Abuse Services (“OASAS” or “Office”) who will have the potential for, facilities by permitting the Justice Center access for purposes of an or may be permitted, regular and substantial unsupervised or unrestricted investigation of a reportable or significant incident consistent with require- physical contact with the clients in such treatment facilities and any indi- ments of Chapter 501 of the Laws of 2012. vidual seeking to be credentialed by the Office. The cost of fingerprinting A copy of the full text of the regulatory proposal is available on the will be subsidized by the Office. OASAS website at: http://www.oasas.ny.gov/regs/index.cfm This legislation requires patients and staff be notified of the toll free Vulnerable Persons Central Register for purposes of reporting allegations This notice is intended to serve only as a notice of emergency adoption. of abuse and neglect in OASAS certified programs and by OASAS This agency intends to adopt the provisions of this emergency rule as a custodians, and that staff receive regular training in their obligations as permanent rule, having previously submitted to the Department of State a custodians regarding regulatory requirements for prompt and thorough notice of proposed rule making, I.D. No. ASA-37-15-00001-EP, Issue of investigations, staff oversight, confidentiality laws, record keeping, timing September 16, 2015. The emergency rule will expire December 9, 2015. of reporting and investigating, content of reports, and procedures for cor- Text of rule and any required statements and analyses may be obtained rective action plan implementation. Training will be provided by the Of- from: Sara Osborne, Associate Attorney, NYS OASAS, 1450 Western fice or the Justice Center. Ave., Albany, NY 12203, (518) 485-2317, email: The legislation is intended to enable providers of services to persons [email protected] seeking treatment for substance use disorders to secure appropriate and Regulatory Impact Statement properly trained individuals to staff their facilities and programs, by verify- 1. Statutory Authority: ing criminal history information received for individuals seeking employ- (a) Protection of People with Special Needs Act, Chapter 501 of the ment or volunteering their services and those credentialed by the Office. Laws of 2012, which added Article 20 to the Executive Law and Article The legislation also makes technical amendments to make language and 11 to the Social Services Law as well as amended other laws. format consistent throughout OASAS regulations. (b) Section 19.09(b) of the Mental Hygiene Law authorizes the Com- 4. Costs: missioner to adopt regulations necessary and proper to implement any The Office anticipates no fiscal impact on providers or local govern- matter under his or her jurisdiction. ments, job creation or loss, because the process of reporting incidents will (c) Section 19.20 of the MHL authorizes the Office to receive and not require any additions or reductions in staffing. OASAS will subsidize review criminal history information related to employees or volunteers of the fingerprinting process for not-for-profit providers. treatment facilities certified, licensed, funded or operated by the Office. 5. Paperwork: (d) Section 19.20-a of the MHL authorizes the Office to receive and The proposed regulatory amendments will require limited additional in- review criminal history information related to persons seeking to be formation to be reported to the Justice Center by mandated reporters and credentialed by the Office or applicants for an operating certificate issued documentation retained by providers. To the extent feasible, such report- by the Office. ing shall be made electronically to avoid unnecessary paperwork costs.

8 NYS Register/December 9, 2015 Rule Making Activities

6. Local Government Mandates: communicated electronically, so any additional recordkeeping will be This regulation imposes no new mandates on local governments operat- minimal regardless of geographic location. No new professional services ing certified OASAS programs. are required; no professional services will be lost. 7. Duplications: Rural Area Flexibility Analysis This proposed rule does not duplicate any State or federal statute or rule. 1. Rural areas in which the rule will apply (types and estimated number 8. Alternatives: of rural areas): The Protection of People with Special Needs Act (Chapter 501 of the OASAS services are provided in every county in New York State. 44 Laws of 2012) requires the adoption of this proposed regulation. counties have a population less than 200,000: Allegany, Cattaraugus, 9. Federal Standards: Cayuga, Chautauqua, Chemung, Chenango, Clinton, Columbia, Cortland, These amendments do not conflict with federal standards. Delaware, Essex, Franklin, Fulton, Genesee, Greene, Hamilton, Herkimer, 10. Compliance Schedule: Jefferson, Lewis, Livingston, Madison, Montgomery, Ontario, Orleans, The regulations will be effective on June 30, 2013 and subsequently Oswego, Otsego, Putnam, Rensselaer, St. Lawrence, Saratoga, Sche- September 25, 2013, December 20, 2013, March 20, 2014, June 17, 2014, nectady, Schoharie, Schuyler, Seneca, Steuben, Sullivan, Tioga, Tomp- September 12, 2014, and December 14, 2014, March 14, 2015, June 12, kins, Ulster, Warren, Washington, Wayne, Wyoming and Yates. 9 coun- 2015 and August 26, 2015 to ensure compliance with Chapter 501 of the ties with certain townships have a population density of 150 persons or Laws of 2012. less per square mile: Albany, Broome, Dutchess, Erie, Monroe, Niagara, Regulatory Flexibility Analysis Oneida, Onondaga and Orange. 1. Effect of the rule: 2. Reporting, recordkeeping and other compliance requirements; and OASAS services are provided by programs of varying size in every professional services: county in New York State; some counties are also certified service The proposed regulation implements provisions of The Protection of providers. The proposed Rule has been reviewed by OASAS in consider- People with Special Needs Act (Chapter 501 of the Laws of 2012) for the ation of its impact on service providers of all sizes and on local govern- purpose of establishing a uniform incident reporting process via a state ments, whether or not they are certified operators; additionally this regula- centralized hotline (Vulnerable Persons Central Register). The proposed tion has been reviewed by the OASAS Advisory Council which consists regulation incorporates provisions from this Act into the OASAS incident of providers and stakeholders of all sizes and municipalities. reporting regulation which applies to all programs throughout the state in 2. Compliance requirements: all geographic locations. Because the regulation applies to incident report- The proposed regulation implements provisions of The Protection of ing and incident management in OASAS certified, operated, funded or People with Special Needs Act (Chapter 501 of the Laws of 2012) for the licensed programs, there is no different application in any geographic purpose of ensuring persons who receive services from OASAS certified location. The proposed regulation incorporates the OASAS incident providers are assured of receiving treatment from custodians who have reporting process into a larger oversight and enforcement entity under the been appropriately trained and screened for any prior abusive behavior. Justice Center. These requirements apply to OASAS providers in all The proposed rule will incorporate the Justice Center incident reporting geographic regions. Reporting will be done electronically via telephone or mechanism and database into the OASAS system so all reporting will be other secure means which are not limited by geography. The new rule centralized and tracked for patterns and abuse and neglect allegations and does not require any additional staff, although training will be required other significant incidents. These regulations have been reviewed by the statewide and be largely provided by the Office or the Justice Center. OASAS Advisory council consisting of stakeholders from all regions of The Rule sets forth criteria for incident reporting to the Justice Center, the state, providers of all sizes and municipalities. investigations, corrective action and penalties for programs and individu- The Rule sets forth criteria for incident reporting to the Justice Center, als who are not compliant with these, or other applicable, regulations. The investigations, corrective action and penalties for programs and individu- proposed Rule has been reviewed by OASAS in consideration of its impact als who are not compliant with these, or other applicable, regulations. on service providers in rural areas. Because every region of the state has Incidents will be reported electronically via a toll-free hotline. certified programs, and requirements for staffing, training and incident 3. Professional services: reporting are uniform already, programs will not be affected in any way The proposed Rule has been reviewed by OASAS in consideration of because of their geographic location in a rural area. its impact on service providers of all sizes and on local governments, 3. Costs: whether or not they are certified operators. OASAS has determined that No additional costs will be incurred for implementation by providers the new regulations will not require any new staff or any reductions in because no additional capital investment, personnel or equipment is staff, any new reporting requirements or technology. No additional profes- needed. sional services will be required of as a result of these amendments; nor 4. Minimizing adverse impact: will the amendments add to the professional service needs of local The application of the rule will not impose additional costs or operating governments. Because of the electronic nature of the reporting transac- requirements on providers in rural areas; therefore, it is designed on its tions, minimal paperwork will be involved on the part of business or local face to minimize adverse impact. governments. Because every region of the state has certified programs, 5. Rural area participation: and requirements for staffing and training are uniform already, programs The proposed rule is posted on the agency website; agency review pro- will not be affected in any way because of their size or corporate status. cess involves input from trade organizations representing providers in di- 4. Compliance costs: verse geographic locations. The Office has prepared webinars and guid- No additional costs will be incurred for implementation by providers ance documents for provider use and for training of agency administration. because no additional capital investment, personnel or equipment is Job Impact Statement needed regardless of size or corporate status. OASAS is not submitting a Job Impact Statement for these amend- 5. Economic and technological feasibility: ments because OASAS does not anticipate a substantial adverse impact on Implementation of the rule will require computer and email capability; jobs and employment opportunities. all providers in all regions of the state, both private and public sector, al- The proposed regulation implements provisions of The Protection of ready have such capability. No upgrades of hardware or software will be People with Special Needs Act (Chapter SOl of the Laws of 2012) for the required. purpose of ensuring persons who receive services from OASAS certified 6. Minimizing adverse impact: providers are assured of receiving treatment from custodians who have The application of the rule will not impose additional costs or operating been appropriately trained and screened for any prior abusive behavior. requirements on providers on local governments or small businesses; The proposed rule incorporates definitions and procedures for reporting therefore, it is designed on its face to minimize adverse impact. incidents to the Justice Center and highlights the role of investigations and 7. Small business and local government participation: a provider Incident Review Committee to be responsible for quality assur- The proposed rule is posted on the agency website; agency review pro- ance, implementing corrective action plans related to repetitive incidents cess involves input from trade organizations representing providers in or patterns oflack of oversight. It also strengthens the link to program cer- both public and private sectors, of all sizes and in diverse geographic tification through the requirement for staff background checks and record locations. The Office has prepared webinars and guidance documents for retention and the review by OASAS quality assurance staff. provider use and for training of agency administration. The Rule sets forth criteria for incident reporting to the Justice Center, Providers will be required to retain documentation of fingerprint investigations, corrective action and penalties for programs and individu- requests for employees, contractors of volunteers they ultimately employ; als who are not compliant with these, or other applicable, regulations. The this will not be a significant additional recordkeeping requirement for proposed regulation requires criminal history information reviews of any personnel records they are already required to retain. Every region of the employee, contractor, or volunteer in treatment facilities certified by the state has resources for gathering fingerprints, the history information col- Office who will have the potential for, or may be permitted, regular and lection is done electronically from a central state or federal database, and substantial unsupervised or unrestricted physical contact with the clients

9 Rule Making Activities NYS Register/December 9, 2015 in such treatment facilities. OASAS has evaluated this proposal consider- f. ‘‘Student intern’’ and ‘‘Peer advocate’’; ing its impact on existing jobs or the development of new employment op- g. ‘‘diagnosis’’. portunities for New York residents. It is anticipated that the proposed § 800.4 outlines the parameters for a regulatory waiver granted by the regulation will not have an adverse impact on existing employees in the Commissioner. field of substance use disorder treatment, nor affect any reduction or § 800.5 is a standard severability clause. increase in the number of positions available in the future. OASAS provid- Final rule as compared with last published rule: Nonsubstantive changes ers are already required to report incidents, but the role of a new oversight were made in sections 800.2(b), (g), 800.3(e) and (l). agency will help to consolidate and streamline that process. Text of rule and any required statements and analyses may be obtained The proposed regulation will have no adverse impact on existing jobs from: Sara Osborne, Associate Attorney, NYS Office of Alcoholism and or the development of new employment opportunities because programs Substance Abuse Services, 1450 Western Ave., Albany, NY 12203, (518) are already required to report incidents; new regulations will not require 485-2317, email: [email protected] any new staff or any reductions in staff. It is not anticipated that the Revised Regulatory Impact Statement proposed rule will affect the number of persons applying for employment OASAS is not submitting a Revised Regulatory Impact Statement because within the OASAS system. amendments to the text of this rule subsequent to close of public com- Assessment of Public Comment ments do not constitute substantive amendments that would alter the The agency received no public comment since publication of the last as- purpose and substance of the rule as Proposed and Adopted by emergency sessment of public comment. and as published in the September 9, 2015 State Register. Revised Regulatory Flexibility Analysis NOTICE OF ADOPTION OASAS is not submitting a Revised Regulatory Flexibility Analysis for Small Businesses and Local Governments because amendments to the text OASAS Treatment Services: General Provisions of this rule subsequent to close of public comments do not constitute I.D. No. ASA-36-15-00020-A substantive amendments that would alter the purpose and substance of the Filing No. 1005 rule as Proposed and Adopted by emergency and as published in the September 9, 2015 State Register. Filing Date: 2015-11-19 Revised Rural Area Flexibility Analysis Effective Date: 2015-11-20 OASAS is not submitting a Revised Rural Area Flexibility Analysis because amendments to the text of this rule subsequent to close of public PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- comments do not constitute substantive amendments that would alter the cedure Act, NOTICE is hereby given of the following action: purpose and substance of the rule as Proposed and Adopted by emergency Action taken: Repeal of Part 800; and addition of new Part 800 to Title 14 and as published in the September 9, 2015 State Register. NYCRR. Revised Job Impact Statement Statutory authority: Mental Hygiene Law, sections 19.07(e), 19.09(b), A Revised Job Impact Statement (JIS) is not being submitted with this no- 32.01 and 32.07(a) tice because it is evidence from the subject matter of the regulation that it Subject: OASAS Treatment Services: General Provisions. will have no impact on jobs and employment opportunities and amend- Purpose: General provisions applicable to all OASAS treatment services: ments to the text of this rule subsequent to close of public comments do definitions, incorporation by reference, staffing. not constitute substantive amendments that would alter the purpose and Substance of final rule: The Proposed Rule amends Part 800 (formerly substance of the rule as Proposed and Adopted by emergency and as ‘‘Chemical Dependence Services: General Provisions’’) to centralize and published in the September 9, 2015 State Register. consolidate into one Part definitions, applicable statutes and publications Initial Review of Rule incorporated by reference, and authorizations applicable to all OASAS As a rule that requires a RFA, RAFA or JIS, this rule will be initially treatment modalities and regulations found in 14 NYCRR Chapter XXI reviewed in the calendar year 2018, which is no later than the 3rd year af- related to the operations of the Office. ter the year in which this rule is being adopted. Section 800.1 sets forth the legal authorization in the Mental Hygiene Law for promulgation of this Rule. Assessment of Public Comment § 800.2 lists statutes, publications and other regulations which are The agency received no public comment. incorporated by reference into one or all of the other Parts in Chapter XXI. Including them in one Part, rather than individually in each Part, is more NOTICE OF ADOPTION efficient for purposes of regulatory enforcement and future amendments. Commonly referenced citations include: Medical Assistance for Chemical Dependence Services a. The most current version of the ‘‘International Classification of I.D. No. ASA-36-15-00021-A Diseases’’; b. The most current version of the ‘‘Diagnostic and Statistical Manual Filing No. 1007 of Mental Disorders’’; Filing Date: 2015-11-19 c. 42 Code of Federal Regulations Part 2, et. seq; Effective Date: 2015-11-20 d. The most current version of the OASAS Level of Care Detennination Tool (LOCADTR); e. The most current version of the ‘‘Medicare Provider Reimbursement PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Manual’’; cedure Act, NOTICE is hereby given of the following action: f. ‘‘Health Insurance Portability and Accountability Act of 1996’’ Action taken: Amendment of Part 841 of Title 14 NYCRR. (HIPPA); Statutory authority: Mental Hygiene Law, sections 19.07(e), 19.09(b), g. 21 Code of Federal Regulations Part 1301.72, et seq. 32.01 and 32.07(a) § 800.3 sets forth frequently used definitions applicable to all of the other Parts of Chapter XXI. Including them in one Part, rather than Subject: Medical Assistance for Chemical Dependence Services. individually in each Part, is more efficient for purposes of regulatory Purpose: Update for Medicaid managed care implementation; coordinate enforcement and future amendments. Definitions, references and language with amendments to Parts 822, 820 and 800; technical amendments. usage in the field of substance use disorder treatment have evolved so that Substance of final rule: The Proposed Rule Amends Part 841 (Medical many existing definitions are no longer relevant and others have become Assistance for Chemical Dependence Services) to make technical correc- more significant. Key amendments and definitions include: tions and to accommodate the ‘‘carve-in”; of behavioral health services a. Definition of ‘‘substance use disorder’’ which will include formerly into the Medicaid Managed Care system of service reimbursement. Provi- preferred references to ‘‘chemical dependence’’; sions previously in Part 841 related to Medicaid services are moved into b. ‘‘Sponsor’’ formerly ‘‘governing authority’’ to be consistent with 14 NYCRR Part 841. Other Medicaid billing provisions subject to change other Department of Mental Hygiene Offices; beyond OASAS control have been removed from this Part and made avail- c. ‘‘Medical Director’’ and medical staff setting forth specific require- able on the agency website. ments for the positions; Section 841.1 is a statement of background and intent. d. ‘‘Program’’ and ‘‘Provider’’; § 841.2 sets forth the legal basis for regulatory action and other statu- e. ‘‘Qualified Health Professional’’ to include recent additions to the tory authorizations required for methods of payments made by govern- list; ment agencies.

10 NYS Register/December 9, 2015 Rule Making Activities

§ 841.3 states the regulation's applicability to eligible providers. NOTICE OF ADOPTION § 841.4 sets forth definitions applicable to this Part; makes technical amendments; and removes expired provisions. In conjunction with Residential Services proposed concurrent amendments to 14 NYCRR Part 800, definition of ‘‘Office’’ was removed to reduce page length and redundancy. I.D. No. ASA-36-15-00022-A § 841.5 sets forth requirements for financial and statistical reporting. Filing No. 1006 Technical amendments only. Filing Date: 2015-11-19 § 841.6 is a non-discrimination clause; no amendments. Effective Date: 2015-11-20 § 841.7 sets forth recordkeeping requirements; no amendments. § 841.8 relates to billing standards; no amendments. PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- § 841.9 is a statement of compliance with general medical assistance cedure Act, NOTICE is hereby given of the following action: program requirements; no amendments. Action taken: Addition of Part 820 to Title 14 NYCRR. § 841.10 relates to medical assistance payments for chemical depen- Statutory authority: Mental Hygiene Law, sections 19.07(e), 19.09(b), dence inpatient services. Removes references to short term residential 32.01 and 32.07(a) treatment for adolescents; adds residential service providers and residen- Subject: Residential services. tial services under 16-beds (Part 819 and Part 820 currently being drafted); other technical amendments. Purpose: Residential services restructured for Medicaid managed care and Medicaid redesign. § 841.11 relates to medical assistance payments for inpatient medically supervised withdrawal services; no amendments. Substance of final rule: This Rulemaking proposes a new Part 820 (“Res- idential Services”) added to 14 NYCRR to facilitate restructuring of § 841.12 relates to medical assistance payments for residential rehab OASAS residential programs in response to goals of Gov. Cuomo’s services for youth; technical amendments. Medicaid Redesign Team (MRT) in order to realize more efficient and ef- § 841.13 relates to audits and revisions to rates for inpatient rehabilita- fective use of state run and state authorized treatment resources, and in re- tion services and fees and fee add-ons for residential rehabilitation ser- sponse to the transition of state authorized Medicaid payments for vices for youth services; technical amendments. substance use disorder treatment from fee-for-service to managed care. § 841.14 relates to Medical assistance payments for chemical depen- Section 820.1 sets forth the legal authorization in the Mental Hygiene dence outpatient and opioid treatment programs. Technical amendments Law for promulgation of this Rule. and removed APG categories subject to change from regulation and § 820.2 designates programs to which this rule would apply. indicate posting on agency website. Added provisions deleted from § 820.3 sets forth definitions applicable to residential services and the corresponding elements of recovery: stabilization, rehabilitation, and com- amendments to Part 822 regarding APG billing services. munity reintegration. § 841.15 relates to capital costs; technical amendments. § 820.4 relates to assignment of services pursuant to OASAS statutory § 841.16 regulates related party transactions; no amendments; technical and regulatory requirements for certification of treatment programs (14 amendments. NYCRR Part 810). § 841.17 is a standard severability clause; no amendments. § 820.5 sets forth general standards for all programs certified to provide Final rule as compared with last published rule: Nonsubstantive changes residential services. were made in sections 841.13(c)(2), 841.15(c), (e), (f), (h), (j), (m) and § 820.6 describes Staffing requirements for all programs certified to 841.16(a). provide residential services. Text of rule and any required statements and analyses may be obtained § 820.7 sets forth requirements and standards for admission, screening and assessment of residents. from: Sara Osborne, Associate Attorney, NYS Office of Alcoholism and § 820.8 relates to requirements for development of a treatment/recovery Substance Abuse Services, 1450 Western Ave., Albany, NY 12203, (518) or service plan for each residential service. 495-2317, email: [email protected] § 820.9 relates to discharge requirements. Revised Regulatory Impact Statement § 820.10 describes additional requirements for stabilization services in OASAS is not submitting a Revised Regulatory Impact Statement because a residential setting related to program services and staffing. amendments to the text of this rule subsequent to close of public com- § 820.11 sets forth additional requirements for rehabilitation services in ments do not constitute substantive amendments that would alter the a residential setting related to program services and staffing. § 820.12 sets forth additional requirements for reintegration in a resi- purpose and substance of the rule as Proposed and Adopted by emergency dential setting related to program services and staffing. and as published in the September 9, 2015 State Register. § 820.13 sets forth Standards pertaining to Medicaid reimbursement. Revised Regulatory Flexibility Analysis § 820.14 is a standard Severability clause. OASAS is not submitting a Revised Regulatory Flexibility Analysis for Final rule as compared with last published rule: Nonsubstantive changes Small Business and Local Governments because amendments to the text were made in sections 820.4, 820.5(a), (b), 820.7(a), (c), 820.8(b), of this rule subsequent to close of public comments do not constitute 820.9(c), 820.11, 820.12 and 820.13. substantive amendments that would alter the purpose and substance of the Text of rule and any required statements and analyses may be obtained rule as Proposed and Adopted by emergency and as published in the from: Sara Osborne, Associate Attorney, NYS Office of Alcoholism and September 9, 2015 State Register. Substance Abuse Services, 1450 Western Ave., Albany, NY 12203, (518) 485-2317, email: [email protected] Revised Rural Area Flexibility Analysis Revised Regulatory Impact Statement OASAS is not submitting a Revised Rural Area Flexibility Analysis OASAS is not submitting a Revised Regulatory Impact Statement because because amendments to the text of this rule subsequent to close of public amendments to the text of this rule subsequent to close of public com- comments do not constitute substantive amendments that would alter the ments do not constitute substantive amendments that would alter the purpose and substance of the rule as Proposed and Adopted by emergency purpose and substance of the rule as Proposed and Adopted by emergency and as published in the September 9, 2015 State Register. and as published in the September 9, 2015 State Register. Revised Job Impact Statement Revised Regulatory Flexibility Analysis OASAS is not submitting a Revised No Job Impact Statement because OASAS is not submitting a Revised Regulatory Flexibility Analysis for amendments to the text of this rule subsequent to close of public com- Small Businesses and Local Governments because amendments to the text ments do not constitute substantive amendments that would alter the of this rule subsequent to close of public comments do not constitute purpose and substance of the rule as Proposed and Adopted by emergency substantive amendments that would alter the purpose and substance of the and as published in the September 9, 2015 State Register. rule as Proposed and Adopted by emergency and as published in the September 9, 2015 State Register. Initial Review of Rule As a rule that requires a RFA, RAFA or JIS, this rule will be initially Revised Rural Area Flexibility Analysis reviewed in the calendar year 2018, which is no later than the 3rd year af- OASAS is not submitting a Revised Rural Area Flexibility Analysis because amendments to the text of this rule subsequent to close of public ter the year in which this rule is being adopted. comments do not constitute substantive amendments that would alter the Assessment of Public Comment purpose and substance of the rule as Proposed and Adopted by emergency The agency received no public comment. and as published in the September 9, 2015 State Register.

11 Rule Making Activities NYS Register/December 9, 2015

Revised Job Impact Statement indicates special requirements for pregnant patients required by federal OASAS is not submitting a Job Impact Statement because amendments to block grant. the text of this rule subsequent to close of public comments do not consti- § 822.10 relates to minimum requirements for preparation and mainte- tute substantive amendments that would alter the purpose and substance of nance of case records applicable to all programs. Standards include the rule as Proposed and Adopted by emergency and as published in the periodic review, discharge plans, document retention, transfers, patient September 9, 2015 State Register. deaths, and confidentiality. Initial Review of Rule § 822.11 includes minimum standards for documentation of services As a rule that requires a RFA, RAFA or JIS, this rule will be initially including required signatures, content and date of service. reviewed in the calendar year 2018, which is no later than the 3rd year after the year in which this rule is being adopted. § 822.12 relates to discharge planning including minimum criteria, timing of a required discharge summary, requirement for patient participation Assessment of Public Comment in the development of a discharge plan and special requirements for dis- The agency received no public comment. charge of minors pursuant to mental hygiene law § 22.11. NOTICE OF ADOPTION § 822.13 relates to a continuing care which is a service unique to CD- OPs. Continuing care requires a discharge from active treatment and General Service Standards for Chemical Dependence Outpatient subsequent admission to continuing care with limitations on the amount (CD-OP) and Opioid Treatment Programs (OTP) and types of services available to support continued recovery. § 822.14 regulates additional locations of a primary CD-OP location by I.D. No. ASA-36-15-00023-A restricting location in relation to the primary site, extent of services, and Filing No. 1004 requirement for certification. Filing Date: 2015-11-19 § 822.15 identifies additional requirements for chemical dependence Effective Date: 2015-11-20 outpatient rehabilitation services in CD-OPs designated to provide such services. Special requirements relate to staffing, type and frequency of PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- services, and meals. cedure Act, NOTICE is hereby given of the following action: § 822.16 identifies additional standards unique to CD-OTPs including Action taken: Repeal of Part 822; and addition of new Part 822 to Title 14 medication administration, regulation of take-home medications, volun- NYCRR. tary and involuntary tapers, provisions for diversion control, and program Statutory authority: Mental Hygiene Law, sections 19.07(e), 19.09(b), participation in the central registry maintained by the Office to track 32.01 and 32.07(a) patients receiving opioid treatment. Subject: General Service Standards for Chemical Dependence Outpatient § 822.17 is a standard severability clause. (CD-OP) and Opioid Treatment Programs (OTP). Final rule as compared with last published rule: Nonsubstantive changes Purpose: Amend to accommodate Medicaid managed care and Medicaid were made in sections 822.5, 822.7(a), (g), 822.8(a), (b), 822.9(b), (c), redesign; phase out APGs; amendments to Part 800. 822.10(b), (f) and 822.13(b). Substance of final rule: The Proposed Rule Repeals Part 822 (Chemical Dependence Outpatient and Opioid Treatment Programs; effective July I, Text of rule and any required statements and analyses may be obtained 2011) and Adds a New Part 822. The current Part 822 was substantially from: Sara Osborne, Associate Attorney, NYS Office of Alcoholism and rewritten in 2011 to accommodate implementation of the Ambulatory Substance Abuse Services, 1450 Western Ave., Albany, NY 12203, (518) Patient Group (APG) billing and reimbursement methodology. In addition 485-2317, email: [email protected] that revision incorporated provisions related to opioid treatment programs, Revised Regulatory Impact Statement which are also outpatient treatment, from a previously separate and distinct Part 828. This current revision anticipates the ‘‘carve-in’’ of chemical de- OASAS is not submitting a Revised Regulatory Impact Statement because pendence treatment services (now known as ‘‘substance use disorder ser- amendments to the text of this rule subsequent to close of public com- vices’’) and other behavioral health services into the Medicaid Managed ments do not constitute substantive amendments that would alter the Care system of service reimbursement. purpose and substance of the rule as Proposed and Adopted by emergency Section 822.1 is a statement of background. and as published in the September 9, 2015 State Register. § 822.2 sets forth the legal basis for regulatory action and other statutory authorizations required for medication assisted treatment. Revised Regulatory Flexibility Analysis § 822.3 states the regulation'S applicability to chemical dependence OASAS is not submitting a Revised Regulatory Flexibility Analysis for outpatient programs (COOPs) and such outpatient programs known as Small Business and Local Governments because amendments to the text opioid treatment programs (CD-OTPs). of this rule subsequent to close of public comments do not constitute § 822.4 is a savings and renewals clause for purposes of a transition pe- substantive amendments that would alter the purpose and substance of the riod for issuance of program operating certificates. rule as Proposed and Adopted by emergency and as published in the § 822.5 sets forth definitions uniquely applicable to this Part. In September 9, 2015 State Register. conjunction with proposed concurrent amendments to 14 NYCRR Part 800, some definitions were removed to reduce page length and redundancy Revised Rural Area Flexibility Analysis (i.e., ‘‘commissioner,’’ ‘‘governing authority’’ or ‘‘sponsor,’’ ‘‘Medical OASAS is not submitting a Revised Rural Area Flexibility Analysis Director,’’ ‘‘clinical staff,’’ ‘‘peer advocate,’’ ‘‘student intern,’’ ‘‘pre- because amendments to the text of this rule subsequent to close of public scribing professional’’). Significant definitions unique to this Part include, for example: ‘‘accrediting body,’’ ‘‘central registry system,’’ ‘‘complex comments do not constitute substantive amendments that would alter the care coordination,’’ ‘‘continuing care treatment,’’ ‘‘intensive outpatient purpose and substance of the rule as Proposed and Adopted by emergency services,’’ ‘‘opioid detoxification,’’ and ‘‘opioid taper.’’ and as published in the September 9, 2015 State Register. § 822.6 sets forth minimum standards pertaining to Medicaid reimburse- Revised Job Impact Statement ment (specific enumerated services are identified in 14 NYCRR Part 841) such as services which, by themselves, are not Medicaid reimbursable. OASAS is not submitting a Revised Job Impact Statement because amend- § 822.7 details general program standards applicable to both CD-OPs ments to the text of this rule subsequent to close of public comments do and CD-OTPs or to a specific modality. These standards include require- not constitute substantive amendments that would alter the purpose and ments for policies and procedures, emergency medical kits on-site, utiliza- substance of the rule as Proposed and Adopted by emergency and as tion review, minimum required services, staffing, hours of operation, and published in the September 9, 2015 State Register. optional services. § 822.8 relates to admission, initial services, transfers and readmission Initial Review of Rule requirements for all programs and some requirements specific to CD-OPs As a rule that requires a RFA, RAFA or JIS, this rule will be initially or CD-OTPs. Requirements include preadmission testing, timing of a de- reviewed in the calendar year 2018, which is no later than the 3rd year af- cision to admit, initial medications, patient orientation, documentation ter the year in which this rule is being adopted. required for transfers or readmissions. § 822.9 relates to the development, documentation, implementation and Assessment of Public Comment periodic review of the patient-specific treatment/recovery plan; also The agency received no public comment.

12 NYS Register/December 9, 2015 Rule Making Activities

NOTICE OF ADOPTION Final rule as compared with last published rule: Nonsubstantive changes were made in section 836.4(u). Incident Reporting in Oasas Certified, Licensed, Funded, or Text of rule and any required statements and analyses may be obtained Operated Services from: Sara Osborne, Associate Attorney, NYS Office of Alcoholism and Substance Abuse Services, 1450 Western Ave., Albany, NY 12203, (518) I.D. No. ASA-37-15-00001-A 485-2317, email: [email protected] Filing No. 1008 Revised Regulatory Impact Statement Filing Date: 2015-11-19 OASAS is not submitting a Revised Regulatory Impact Statement because amendments to the text of this rule subsequent to close of public com- Effective Date: 2015-11-20 ments do not constitute substantive amendments that would alter the purpose and substance of the rule as Proposed and Adopted by emergency PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- and as published in the September 16, 2015 State Register. cedure Act, NOTICE is hereby given of the following action: Revised Regulatory Flexibility Analysis Action taken: Repeal of Part 836; and addition of new Part 836 to Title 14 OASAS is not submitting a Revised Regulatory Flexibility Analysis for NYCRR. Small Businesses and Local Governments because amendments to the text Statutory authority: Mental Hygiene Law, sections 19.09(b), 19.20, of this rule subsequent to close of public comments do not constitute 19.20-a, 19.40, 32.02; Executive Law, section 296(15) and (16); Correc- substantive amendments that would alter the purpose and substance of the tions Law, art. 23-A; Civil Service Law, section 50; Protection of People rule as Proposed and Adopted by emergency and as published in the with Special Needs Act, L. 2012, ch. 501 September 16, 2015 State Register. Subject: Incident Reporting in Oasas Certified, Licensed, Funded, or Revised Rural Area Flexibility Analysis Operated Services. OASAS is not submitting a Revised Rural Areas Flexibility Analysis Purpose: To enhance protections for service recipients in the OASAS because amendments to the text of this rule subsequent to close of public system. comments do not constitute substantive amendments that would alter the Substance of final rule: The Proposed Rule would Repeal the current Part purpose and substance of the rule as Proposed and Adopted by emergency 836 and Replace it with a new Part 836. The new Part incorporates amend- and as published in the September 16, 2015 State Register. ments related to incident reporting consistent with statutory requirements, Revised Job Impact Statement definitions and procedures of the Justice Center, pursuant to the Protection OASAS is not submitting a Revised No Job Impact Statement because of People with Special Needs Act (Chapter 501 of the Laws of 2012). amendments to the text of this rule subsequent to close of public com- The Proposed Rule also makes technical amendments to standardize ments do not constitute substantive amendments that would alter the formatting for all Office regulations. Amendments related to the Justice purpose and substance of the rule as Proposed and Adopted by emergency Center include: and as published in the September 16, 2015 State Register. Section 836.1 sets forth the background and intent and adds language referencing the purpose for establishing the Justice Center and for Initial Review of Rule coordinating agency incident reviews with the Justice Center. As a rule that requires a RFA, RAFA or JIS, this rule will be initially § 836.2 sets forth the statutory authority for the promulgation of the reviewed in the calendar year 2018, which is no later than the 3rd year af- rule by the Office of Alcoholism and Substance Abuse Services (“Of- ter the year in which this rule is being adopted. fice”); adds The Protection of People with Special Needs Act; removes re- Assessment of Public Comment pealed statutes; adds the Vulnerable Persons Central Register in § 492 of The agency received no public comment. the social services law. § 836.3 amends applicability of this Part to be consistent with Justice Center statute and regulations. § 836.4 adds new definitions or amends to be consistent with the Justice Center: “Reportable incident”, “physical abuse”, “psychological abuse”, Office of Children and Family “deliberate inappropriate use of restraints”, “use of aversive conditioning”, “obstruction of reports of reportable incidents”, “unlawful use or Services administration of a controlled substance,” “neglect”, “significant incident”, “custodian”, “facility or provider agency”, “mandated reporter”, “human services professional”, “physical injury”, “delegate investigatory entity”, PROPOSED RULE MAKING “Justice Center”, “Person receiving services,”, “Personal representative,” “Abuse or neglect”, “subject of the report,” “other persons named in the NO HEARING(S) SCHEDULED report,” “Vulnerable Persons Central Register,” “vulnerable person”, “intentionally and recklessly”, “clinical records”, “Incident management Youth Development Program Funding and Implementation programs”, “Incident report”, “Missing client”, “qualified person”, “staff”, I.D. No. CFS-49-15-00005-P “Incident review Committee”. § 836.5 adds requirements for providers of services’ policies and procedures related to, and implementation of, an Incident Management PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Program consistent with the requirements of Chapter 501 of the Laws of cedure Act, NOTICE is hereby given of the following proposed rule: 2012. Proposed Action: Repeal of Subparts 165-1 and 165-2; addition of new § 836.6 adds requirements for incident reporting, notice and investiga- Subpart 165-1; and amendment of Subtitle E of Title 9 NYCRR. tion to incorporate changes in processes necessitated by Chapter 501 of Statutory authority: Social Services Law, sections 20(3)(d) and 34(3)(f); the Laws of 2012. Executive Law, sections 419, 501(5) and L. 2013, ch. 57, part G § 836.7 adds requirements for additional notice and reporting requirements for reportable and significant incidents necessitated by Chapter 501 Subject: Youth development program funding and implementation. of the Laws of 2012 such as: reporting “immediately” upon discovery of Purpose: To implement changes in the Executive Law regarding youth an incident; required reporting to the Justice Center Vulnerable Persons development program funding and implementation. Central Register, Office and regional Field Office; includes all “custodi- Substance of proposed rule (Full text is posted at the following State ans” as “mandated reporters” for purposes of this regulation. website:ocfs.ny.gov): Part G of Chapter 57 of the Laws of 2013 (Chapter § 836.8 adds requirements for configuration of Incident Review Com- 57) repealed subdivision 1 of Section 420 of the Executive Law, as it mittees consistent with requirements of Chapter 501 of the Laws of 2012. pertained to special delinquency prevention programs (SDPP) and youth § 836.9 adds requirements for recordkeeping and release of records to development and delinquency prevention (YDDP) services, and replaced qualified persons consistent with requirements of Chapter 501 of the Laws it with a new subdivision 1. Section 420(1) of the Executive Law, as added of 2012. by Part G of Chapter 57, streamlined the funding for youth development § 836.10 adds to a provider’s duty to cooperate regarding inspection of programs by providing a single stream of funding to replace multiple fund- facilities by permitting the Justice Center access for purposes of an ing streams, each with its own set of rules. investigation of a reportable or significant incident consistent with require- These proposed regulations repeal subparts 165-1 and 165-2 of Title 9 ments of Chapter 501 of the Laws of 2012. of the New York Codes, Rules and Regulations (NYCRR), which provide A copy of the full text of the regulatory proposal is available on the rules for SDPPs and YDDPs, and add a new subpart 165-1, which provides OASAS website at: http://www.oasas.ny.gov/regs/ index.cfm rules for implementing the new youth development programs. The

13 Rule Making Activities NYS Register/December 9, 2015 proposed regulations also contain an amendment to the title of Subtitle E Subdivision (b) of section 165-1.5 permits municipalities to enter into of 9 NYCRR, to reflect that the prior Division for Youth is now the Office contracts in accordance with applicable laws, rules and regulations to ef- of Children and Family Services (OCFS). fectuate youth development programs. The following is a summary of the provisions of the proposed subpart Subdivision (c) of section 165-1.5 establishes rules that are applicable 165-1: to the administration of municipal youth bureaus, including requirements Section 165-1.1 states the purpose of the proposed regulations, which is regarding the employment and responsibilities of an executive director or to provide for the coordination and allocation methodology for funding for other designated person; youth boards; youth board composition; and the a range of community level programs and services that will promote posi- powers, duties and responsibilities of youth boards for municipal youth tive youth development through youth development programs. bureaus. Section 165-1.2 provides definitions for the youth development Subdivision (d) of section 165-1.5 provides for rules regarding the program regulations. The following terms are defined: Office (meaning establishment of local youth bureaus. the Office of Children and Family Services); youth; municipality; youth Subdivision (e) of section 165-1.5 requires a municipality receiving development program; youth bureau; municipal youth bureau; local youth youth development funding to make its youth development program re- bureau; youth board; comprehensive plan for youth development pro- cords available for examination or inspection upon the request of OCFS. grams; and youth development funding. Subdivision (f) of section 165-1.5 requires municipalities to submit any Section 165-1.3 provides information about comprehensive plans for youth development programs. statistical or other reports related to youth development programs that Subdivision (a) of section 165-1.3 requires that each municipality that OCFS may require. seeks youth development funding submit a comprehensive plan for youth Text of proposed rule and any required statements and analyses may be development programs (comprehensive plan), written in consultation with obtained from: Public Information Office, New York State Office of Chil- its municipal youth bureau. The comprehensive plan must be submitted in dren and Family Services, 52 Washington Street, Rensselaer, New York the manner and form and at such time as designated by OCFS and is 12144, (518) 473-7793, email: [email protected] subject to the approval of OCFS. Data, views or arguments may be submitted to: Same as above. Subdivision (b) of section 165-1.3 describes the information that must be included in the comprehensive plan for youth development programs. Public comment will be received until: 45 days after publication of this Subdivision (c) of section 165-1.3 addresses the instances in which notice. OCFS may approve all or part of a municipality’s comprehensive plan for Regulatory Impact Statement youth development programs. Upon receipt of a notification that OCFS 1. Statutory authority: has not approved all or part of its comprehensive plan, a municipality has Section 20(3)(d) of the Social Services Law authorizes the Office of sixty days under the proposed regulations to submit a revised plan or docu- Children and Family Services (OCFS) to establish rules, regulations and ments to OCFS. If OCFS does not approve the revised plan submitted dur- policies to carry out the powers and duties of OCFS under the Social Ser- ing the 60-day period, OCFS may withhold youth development funds from vices Law. the municipality until its plan is fully approved. Section 34(3)(f) of the Social Services Law authorizes the Commis- Subdivision (d) of section 165-1.3 requires that municipalities obtain sioner of OCFS to establish regulations for the administration of public as- OCFS approval of any amendments to their comprehensive plans for youth sistance and care within the State. development programs prior to the plans taking effect. Section 419 of the Executive Law authorizes OCFS to adopt, amend or Subdivision (e) of section 165-1.3 provides a municipality with the rescind all rules and regulations necessary to carry out the objectives of ability to request a waiver of any non-statutory regulatory requirement re- Article 19-A of the Executive Law, including the objective that state aid lating to the content or timing of its comprehensive plan for youth develop- for funding for youth development programs be granted uniformly ment programs. throughout the state, having regard for various conditions and needs in Subdivision (f) of section 165-1.3 allows OCFS to waive any non- different parts of the state. statutory regulatory requirements related to the content or timing of a Section 501(5) of the Executive Law authorizes OCFS to promulgate comprehensive plan for youth development programs where it is deter- rules and regulations for the establishment, operation and maintenance of mined that the requirement will impose an undue burden or unreasonably OCFS facilities and programs. impede a municipality’s ability to implement its comprehensive plan. 2. Legislative objectives: OCFS may establish alternative requirements as a condition of receiving The proposed regulations are necessary to advance the legislative objec- the waiver. tive of preventing delinquency and youth crime while advancing the moral, Section 165-1.4 provides rules for implementing the funding of youth physical, mental, and social well-being of youth through the provision of development programs. youth development programs. Part G of Chapter 57 of the Laws of 2013 Subdivision (a) of section 165-1.4 provides that each municipality made changes to certain sections of the Executive Law and the Social Ser- operating a youth development program is eligible for 100% state vices Law by consolidating the youth development and delinquency reimbursement of qualified expenditures, exclusive of federal funds and prevention program (YDDP) and the special delinquency prevention subject to the availability of youth development funds. This subdivision program (SDPP) into a single youth development program and repealing also establishes regulatory provisions for youth development funding certain provisions of the Executive Law relating to those two programs. regarding the following: eligibility, the distribution methodology, the Part G of Chapter 57 of the Laws of 2013 revised and simplified the establishment of a single municipal youth bureau by two or more structure for providing state aid for youth development programs, and au- municipalities, and the possible use of funds for statewide training and thorized OCFS to promulgate regulations for these programs. technical assistance. 3. Needs and benefits: Subdivision (b) of section 165-1.4 provides rules regarding reimburs- Part G of Chapter 57 of the Laws of 2013 made various changes to the able expenditures and claims for youth development programs. law with respect to the funding of youth development programs. Therefore, Subdivision (c) of section 165-1.4 provides rules for instances in which it is necessary to repeal the current regulations and to provide new regula- two or more municipalities join together to establish, operate and maintain tions that conform to the new enacted legislation. a municipal youth bureau. These proposed regulations repeal subparts 165-1 and 165-2 of Title 9 Subdivision (d) of section 165-1.4 permits a municipality to include in of the New York Codes, Rules and Regulations (NYCRR), which provide its comprehensive plan for youth development programs the funding for a rules for SDPPs and YDDPs, and add a new subpart 165-1, which provides municipal youth bureau and one or more local youth bureaus that are ap- rules for implementing the new youth development programs. The proved by the municipality after April 1, 2013. It also provides that any proposed regulations also contain an amendment to the title of Subtitle E youth bureau that was approved by OCFS on or before April 1, 2013 shall of 9 NYCRR, to reflect that the prior Division for Youth is now the Office be an approved local youth bureau. The proposed regulations also provide of Children and Family Services (OCFS). for minimum requirements that pertain to the funding of local youth The proposed regulations are necessary to clarify the youth develop- bureaus by a municipality. ment program legislation and to help municipalities understand what is Subdivision (e) of section 165-1.4 establishes limitations that OCFS required of them under the law. The proposed regulations also provide a may place on reimbursable expenditures and claims. framework for municipalities to follow to apply for youth development Subdivision (f) of section 165-1.4 permits OCFS to require municipali- funding. The statutory scheme previously included multiple funding ties receiving youth development funding to submit reports estimating streams for youth development programs, which was reflected in the expenditures. regulations that would be repealed. The proposed regulations reflect the Section 165-1.5 addresses the administration of youth development consolidation of the multiple categories of funding, each with its own programs. requirements, into a single funding stream for all youth development Subdivision (a) of section 165-1.5 prohibits discrimination in the provi- programs, which will ease the administrative burden on localities. sion of services or in employment of personnel by youth development 4. Costs: programs. The proposed regulations will not impose any additional costs on the

14 NYS Register/December 9, 2015 Rule Making Activities

State or municipalities. The proposed regulations streamline previous The proposed regulations do not impose any additional economic or regulations and should thereby provide administrative relief to technological burdens on local governments or small businesses. municipalities. 6. Minimizing adverse impact: 5. Local government mandates: The proposed regulations will not impose any additional mandates on OCFS staff provides ongoing technical assistance to local governments municipalities with respect to applying for youth development funding be- and small businesses operating youth development programs in fulfilling yond those that were previously required by law and regulation. The the requirements stated in the proposed regulations. OCFS staff is avail- proposed regulations simplify the process by which municipalities may able to answer questions or address issues or problems the municipalities apply for State aid for youth development programs. may encounter with respect to the proposed regulations. Through open 6. Paperwork: communication with local government staff and youth development The proposed regulations would require that all municipalities report information on the need within the municipality for services to assist run- program staff, OCFS should be able to identify if there are any difficulties away and homeless youth and youth in need of crisis intervention or respite in implementing the proposed regulations, and will provide written guid- services. Currently, this requirement only applies to municipalities that ance, as determined by OCFS to be necessary, in assisting local govern- receive funding from OCFS for runaway and homeless youth programs. ments in implementing the proposed regulations. The proposed regulations do not require any other additional paperwork. The proposed regulations also provide local governments with the abil- Furthermore, the proposed regulations eliminate some of the paperwork ity to request a waiver of any non-statutory regulatory requirement regard- that was previously required of municipalities that sought to apply for ing their comprehensive plans for youth development programs that may youth development funding, eliminating previous requirements for each create an undue hardship for them. youth development program that received funding from more than one of 7. Small business and local government participation: the previous funding streams to submit separate applications and reports for every funding stream supporting that program. OCFS staff communicates with staff from youth bureaus and youth 7. Duplication: development programs and services and is aware of their thoughts on The proposed regulations do not duplicate any other State or Federal problems and issues regarding the administration of youth development requirements. programs. OCFS has been working with an advisory group of about ten 8. Alternatives: representatives from local government and non-profit groups to determine The regulations are necessary to comply with Part G of Chapter 57 of how best to implement Part G of Chapter 57 of the Laws of 2013. the Laws of 2013. The proposed regulations were developed based on the Rural Area Flexibility Analysis experience of OCFS with oversight and funding of youth development programs. No significant alternatives were considered. 1. Types and estimated number of rural areas: 9. Federal standards: There are 44 counties in the State that are rural areas. Municipalities in The proposed regulations do not conflict with any Federal standards. those rural areas as well as agencies and organizations providing youth 10. Compliance schedule: development programs in rural areas will be affected by the proposed The requirements made under the proposed regulations are already in regulations. effect under Part G of Chapter 57 of the Laws of 2013. The proposed 2. Reporting, recordkeeping and compliance requirements and profes- regulations would be effective upon adoption. sional services: Regulatory Flexibility Analysis Chapter 57 of the Laws of 2013 reduced the number of funding streams 1. Effect of rule: for youth development programs to one. The proposed regulations The proposed regulations will potentially affect 57 municipalities and simplify the reporting, record keeping and compliance requirements of New York City. They will affect any municipality (i.e., a county, two or more counties that apply together, or a city of more than one million) that municipalities, to include rural municipalities, as compared to the current applies for youth development funding. In addition, the regulations will regulatory requirements. affect approximately 1,000 private non-profit organizations throughout In accordance with Chapter 57 of the Laws of 2013, the proposed New York State that receive state funding for youth development regulations also contain a new requirement for all municipalities, includ- programs. ing rural municipalities, to report on projected and actual performance 2. Compliance requirements: outcomes for youth development programs funded with state aid. In ac- In conformance with the provisions of Part G of Chapter 57 of the Laws cordance with the law, the regulations also contain a new requirement that of 2013 municipalities that apply for youth development funding under any municipality that does not submit a runaway and homeless youth plan the proposed regulations must submit to the Office of Children and Family required to obtain state funding for runaway and homeless youth programs Services (OCFS) a comprehensive plan for youth development programs must submit an annual assessment of the need within the municipality for that contains information specified in Part G of Chapter 57 of the Laws of services to assist runaway and homeless youth and youth in need of crisis 2013. This includes information about the programs funded, projected intervention or respite services. performance outcomes, and success in achieving previous projected outcomes. In order to comply with Part G of Chapter 57 of the Laws of 3. Costs: 2013, the proposed regulations also require those municipalities that do No capital costs are anticipated as a result of the proposed regulations. not submit a plan for Runaway and Homeless Youth programs, which is The proposed regulations do not impose any additional costs on rural required when applying for Runaway and Homeless Youth program fund- areas. The proposed regulations streamline previous regulations and ing, to report on the need within the municipality for services to assist run- should thereby provide administrative relief to municipalities. away and homeless youth and youth in need of crisis intervention or respite 4. Minimizing adverse impact: services. The proposed regulations also require a municipality to adhere to all applicable laws, rules, and regulations for any contracts that it enters Chapter 57 of the Laws of 2013 reduces the number of funding streams into to carry out youth development programs. for youth development programs to one and establishes uniform standards The proposed regulations require municipalities that receive youth for all municipalities across the state to apply for funding for youth development funding from New York State to designate an executive development programs. The proposed regulations implement these stan- director or other person to maintain overall responsibility of the municipal dards in regulation. youth bureau. Chapter 57 of the Laws of 2013 and the proposed regulations also 3. Professional services: provide municipalities with the option of joining with one or more The proposed regulations do not create the need for any additional municipalities to establish, operate and maintain a municipal youth bureau, professional services to be provided by small business or local which may be of particular interest to rural municipalities. governments. No additional staff will be required. 4. Compliance costs: 5. Rural area participation: Most of the procedures in the proposed regulations are already the exist- Local youth development program stakeholders, including from rural ing practice by OCFS and municipalities. These practices are currently areas, participated in an advisory group created by OCFS regarding supported by existing funding levels. As a result, it is anticipated that implementation of Chapter 57 of the Laws of 2013, as they pertain to these proposed regulations will carry no additional state or local fiscal youth development programs. Such participation assisted OCFS in impact. developing the proposed regulations. 5. Economic and technological feasibility: Compliance and reporting requirements in the proposed regulations Job Impact Statement reflect those already established pursuant to Part G of Chapter 57 of the The proposed change will not result in the loss of jobs or have any adverse Laws of 2013. impact on future employment opportunities.

15 Rule Making Activities NYS Register/December 9, 2015

lege, and whether the land or space in question is located upstate, downstate, or in New York City. The regulation prohibits any allocation Department of Economic of land or space that would result in the closure or relocation of any program or service associated with a university or college that serves Development students, faculty, or staff. 5) The regulation establishes eligibility requirements for businesses to participate in the START-UP program, and enumerates excluded industries. To be eligible, a business must: be a new business to the State EMERGENCY at the time of its application, subject to exceptions for NYS incubators, RULE MAKING businesses restoring previously relocated jobs, and businesses the Com- missioner has determined will create net new jobs; comply with applicable START-UP NY Program worker protection, environmental, and tax laws; align with the academic mission of the sponsoring institution (the Sponsor); demonstrate that it I.D. No. EDV-49-15-00001-E will create net new jobs in its first year of operation; and not be engaged in Filing No. 1002 the same line of business that it conducted at any time within the last five Filing Date: 2015-11-17 years in New York without the approval of the Commissioner. Businesses locating downstate must be in the formative stages of development, or Effective Date: 2015-11-17 engaged in a high tech business. To remain eligible, the business must, at a minimum, maintain net new jobs and the average number of jobs that PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- existed with the business immediately before entering the program. cedure Act, NOTICE is hereby given of the following action: 6) The regulation describes the application process for approval of a Tax-Free Area. An eligible institution may submit a plan to the Commis- Action taken: Addition of Part 220 to Title 5 NYCRR. sioner identifying land or space to be designated as a Tax-Free Area. This Statutory authority: Economic Development Law, art. 21, sections 435- plan must: identify precisely the location of the applicable land or space; 36; L. 2013, ch. 68 describe business activities to be conducted on the land or space; establish Finding of necessity for emergency rule: Preservation of general welfare. that the business activities in question align with the mission of the institu- Specific reasons underlying the finding of necessity: On June 24, 2013, tion; indicate how the business would generate positive community and Governor Andrew Cuomo signed into law the SUNY Tax-free Areas to economic benefits; summarize the Sponsor’s procedures for attracting Revitalize and Transform UPstate New York (START-UP NY) program, businesses; include a copy of the institution’s conflict of interest guide- which offers an array of tax benefits to eligible businesses and their em- lines; attest that the proposed Tax-Free Area will not jeopardize or conflict ployees that locate in facilities affiliated with New York universities and with any existing tax-exempt bonds used to finance the Sponsor; and colleges. The START-UP NY program will leverage these tax benefits to certify that the Sponsor has not relocated or eliminated programs serving attract innovative start-ups and high tech industries to New York so as to students, faculty, or staff to create the vacant land. Applications by private create jobs and promote economic development. institutions require approval by both the Commissioner and START-UP Regulatory action is required to implement the START-UP NY NY Approval Board. The START-UP NY Approval Board is to approve program. The legislation creating the START-UP NY program delegated applications so as to ensure balance among rural, urban and suburban ar- to the Department of Economic Development the establishment of eas throughout the state. procedures for the implementation and execution of the START-UP NY 7) A sponsor applying to create a Tax-Free Area must provide a copy of program. Without regulatory action by the Department of Economic its plan to the chief executive officer of any municipality in which the Development, procedures will not be in place to accept applications from proposed Tax-Free Area is located, local economic development entities, institutions of higher learning desiring to create Tax-Free Areas, or busi- the applicable university or college faculty senate, union representatives nesses wishing to participate in the START-UP NY program. and the campus student government. Where the plan includes land or space Adoption of this rule will enable the State to begin accepting applica- outside of the campus boundaries of the university or college, the institutions from businesses to participate in the START-UP NY program, and tion must consult with the chief executive officer of any municipality in represent a step towards the realization of the strategic objectives of the which the proposed Tax-Free Area is to be located, and give preference to START-UP NY program: attracting and retaining cutting-edge start-up underutilized properties identified through this consultation. The Com- companies, and positioning New York as a global leader in high tech missioner may enter onto any land or space identified in a plan, or audit industries. any information supporting a plan application, as part of his or her duties Subject: START-UP NY Program. in administering the START-UP program. 8) The regulation provides that amendments to approved plans may be Purpose: Establish procedures for the implementation and execution of made at any time through the same procedures as such plans were START-UP NY. originally approved. Amendments that would violate the terms of a lease Substance of emergency rule: START-UP NY is a new program designed between a sponsor and a business in a Tax-Free Area will not be approved. to stimulate economic development and promote employment of New Sponsors may amend their plans to reallocate vacant land or space in the Yorkers through the creation of tax-free areas that bring together educa- case that a business, located in a Tax-Free Area, is disqualified from the tional institutions, innovative companies, and entrepreneurial investment. program but elects to remain on the property. 1) The regulation defines key terms, including: “business in the forma- 9) The regulation describes application and eligibility requirements for tive stage,” “campus,” “competitor,” “high tech business,” “net new job,” businesses to participate in the START-UP program. Businesses are to “new business,” and “underutilized property.” submit applications to sponsoring universities and colleges by 12/31/20. 2) The regulation establishes that the Commissioner shall review and An applicant must: (1) authorize the Department of Labor (DOL) and approve plans from State University of New York (SUNY) colleges, City Department of Taxation and Finance (DTF) to share the applicant’s tax in- University of New York (CUNY) colleges, and community colleges seek- formation with the Department of Economic Development (DED); (2) al- ing designation of Tax-Free NY Areas, and report on important aspects of low DED to monitor the applicant’s compliance with the START-UP the START-UP NY program, including eligible space for use as Tax-Free program; (3) provide to DED, upon request, information related to its Areas and the number of employees eligible for personal income tax business organization, tax returns, investment plans, development strat- benefits. egy, and non-competition with any businesses in the community but 3) The regulation creates the START-UP NY Approval Board, com- outside of the Tax-Free Area; (4) certify efforts to ascertain that the busi- posed of three members appointed by the Governor, Speaker of the As- ness would not compete with another business in the same community but sembly and Temporary President of the Senate, respectively. The outside the Tax-Free Area, including an affidavit that notice regarding the START-UP NY Approval Board reviews and approves plans for the cre- application was published in a daily publication no fewer than five con- ation of Tax-Free NY Areas submitted by private universities and col- secutive days; (5) include a statement of performance benchmarks as to leges, as well as certain plans from SUNY colleges, CUNY colleges, and new jobs to be created through the applicant’s participation in START- community colleges, and designates Strategic State Assets affiliated with UP; (6) provide a statement of consequences for non-conformance with eligible New York colleges or universities. START-UP NY Approval the performance benchmarks, including proportional recovery of tax Board members may designate representatives to act on their behalf dur- benefits when the business fails to meet job creation benchmarks in up to ing their absence. START-UP NY Approval Board members must remain three years of a ten-year plan, and removal from the program for failure to disinterested, and recuse themselves where appropriate. meet job creation benchmarks in at least four years of a ten-year plan; (7) 4) The regulation establishes eligibility criteria for Tax-Free Areas. identify information submitted to DED that the business deems confiden- Eligibility of vacant land and space varies based on whether it is affiliated tial, proprietary, or a trade secret. Sponsors forward applications deemed with a SUNY college, CUNY college, community college, or private col- to meet eligibility requirements to the Commissioner for further review.

16 NYS Register/December 9, 2015 Rule Making Activities

The Commissioner shall reject any application that does not satisfy the 20) The regulation requires participating universities and colleges to START-UP program eligibility requirements or purpose, and provide writ- maintain a conflict of interest policy relevant to issues that may arise dur- ten notice of the rejection to the Sponsor. The Commissioner may approve ing the START-UP program, and to report violations of said policies to an application anytime after receipt; if the Commissioner approves the ap- the Commissioner for publication. plication, the business applicant is deemed accepted into the START-UP This notice is intended to serve only as an emergency adoption, to be NY Program and can locate to the Sponsor’s Tax-Free NY Area. Applica- valid for 90 days or less. This rule expires February 14, 2016. tions not rejected will be deemed accepted after sixty days. The Commis- sioner is to provide documentation of acceptance to successful applicants. Text of rule and any required statements and analyses may be obtained 10) The regulation allows a business to amend a successful application from: Phillip Harmonick, New York State Department of Economic at any time in accordance with the procedure of its original application. Development, 625 Broadway, Albany, New York 12207, (518) 292-5112, No amendment will be approved that would contain terms in conflict with email: [email protected] a lease between a business and a SUNY college when the lease was Regulatory Impact Statement included in the original application. STATUTORY AUTHORITY: 11) The regulation permits a business that has been rejected from the Chapter 68 of the Laws of 2013 requires the Commissioner of Eco- START-UP program to locate within a Tax-Free Area without being nomic Development to promulgate rules and regulations to establish eligible for START-UP program benefits, or to reapply within sixty days procedures for the implementation and execution of the SUNY Tax-free via a written request identifying the reasons for rejection and offering Areas to Revitalize and Transform UPstate New York program verified factual information addressing the reasoning of the rejection. (START-UP NY). These procedures include, but are not limited to, the Failure to reapply within sixty days waives the applicant’s right to application processes for both academic institutions wishing to create resubmit. Upon receipt of a timely resubmission, the Commissioner may Tax-Free NY Areas and businesses wishing to participate in the use any resources to assess the claim, and must notify the applicant of his START-UP NY program, standards for evaluating applications, and any or her determination within sixty days. Disapproval of a reapplication is other provisions the Commissioner deems necessary and appropriate. final and non-appealable. LEGISLATIVE OBJECTIVES: 12) With respect to audits, the regulation requires businesses to provide The proposed rule is in accord with the public policy objectives the access to DED, DTF, and DOL to all records relating to facilities located New York State Legislature sought to advance by enacting the START-UP in Tax-Free Areas at a business location within the State during normal NY program, which provides an incentive to businesses to locate critical business hours. DED, DTF, and DOL are to take reasonable steps to high-tech industries in New York State as opposed to other competitive prevent public disclosure of information pursuant to Section 87 of the markets in the U.S. and abroad. It is the public policy of the State to estab- Public Officers Law where the business has timely informed the appropri- lish Tax-Free Areas affiliated with New York universities and colleges, ate officials, the records in question have been properly identified, and the and to afford significant tax benefits to businesses, and the employees of request is reasonable. those businesses, that locate within these Tax-Free Areas. The tax benefits 13) The regulation provides for the removal of a business from the are designed to attract and retain innovative start-ups and high-tech program under a variety of circumstances, including violation of New industries, and secure for New York the economic activity they generate. York law, material misrepresentation of facts in its application to the The proposed rule helps to further such objectives by establishing the ap- START-UP program, or relocation from a Tax-Free Area. Upon removing plication process for the program, clarifying the nature of eligible busi- a business from the START-UP program, the Commissioner is to notify nesses and facilities, and describing key provisions of the START-UP NY the business and its Sponsor of the decision in writing. This removal no- program. tice provides the basis for the removal decision, the effective removal NEEDS AND BENEFITS: date, and the means by which the affected business may appeal the re- The emergency rule is necessary in order to implement the statute moval decision. A business shall be deemed served three days after notice contained in Article 21 of the Economic Development Law, creating the is sent. Following a final decision, or waiver of the right to appeal by the START-UP NY program. The statute directs the Commissioner of Eco- business, DED is to forward a copy of the removal notice to DTF, and the nomic Development to establish procedures for the implementation and business is not to receive further tax benefits under the START-UP execution of the START-UP NY program. program. Upstate New York has faced longstanding economic challenges due in 14) To appeal removal from the START-UP program, a business must part to the departure of major business actors from the region. This divest- send written notice of appeal to the Commissioner within thirty days from ment from upstate New York has left the economic potential of the region the mailing of the removal notice. The notice of appeal must contain unrealized, and left many upstate New Yorkers unemployed. specific factual information and all legal arguments that form the basis of START-UP NY will promote economic development and job creation the appeal. The appeal is to be adjudicated in the first instance by an ap- in New York, particularly the upstate region, through tax benefits peal officer who, in reaching his or her decision, may seek information conditioned on locating business facilities in Tax-Free NY Areas. Attract- from outside sources, or require the parties to provide more information. ing start-ups and high-tech industries is critical to restoring the economy The appeal officer is to prepare a report and make recommendations to the of upstate New York, and to positioning the state as a whole to be compet- Commissioner. The Commissioner shall render a final decision based upon itive in a globalized economy. These goals cannot be achieved without the appeal officer’s report, and provide reasons for any findings of fact or first establishing procedures by which to admit businesses into the law that conflict with those of the appeal officer. START-UP NY program. 15) With regard to disclosure authorization, businesses applying to par- The proposed regulation establishes procedures and standards for the ticipate in the START-UP program authorize the Commissioner to dis- implementation of the START-UP program, especially rules for the cre- close any information contained in their application, including the ation of Tax-Free NY Areas, application procedures for the admission of projected new jobs to be created. businesses into the program, and eligibility requirements for continued 16) In order to assess business performance under the START-UP receipt of START-UP NY benefits for admitted businesses. These rules program, the Commissioner may require participating businesses to submit allow for the prompt and efficient commencement of the START-UP NY annual reports within thirty days at the end of their taxable year describing program, ensure accountability of business participants, and promote the the businesses’ continued satisfaction of eligibility requirements, jobs general welfare of New Yorkers. data, an accounting of wages paid to employees in net new jobs, and any COSTS: other information the Commissioner may require. The Commissioner shall I. Costs to private regulated parties (the business applicants): None. The prepare annual reports on the START-UP program for the Governor and proposed regulation will not impose any additional costs to eligible busi- publication on the DED website, beginning April 1, 2015. Information ness applicants. contained in businesses’ annual reports may be published in these reports II. Costs to the regulating agency for the implementation and continued or otherwise disseminated. administration of the rule: None. 17) The Freedom of Information Law is applicable to the START-UP III. Costs to the State government: None. program, subject to disclosure waivers to protect certain proprietary infor- IV. Costs to local governments: None. mation submitted in support of an application to the START-UP program. LOCAL GOVERNMENT MANDATES: 18) All businesses must keep relevant records throughout their partici- The rule establishes certain property tax benefits for businesses locating pation in the START-UP program, plus three years. DED has the right to in Tax-Free NY Areas that may impact local governments. However, as inspect all such documents upon reasonable notice. described in the accompanying statement in lieu of a regulatory flexibility 19) If the Commissioner determines that a business has acted fraudu- analysis for small businesses and local governments, the program is lently in connection with its participation in the START-UP program, the expected to have a net-positive impact on local government. business shall be immediately terminated from the program, subject to PAPERWORK: criminal penalties, and liable for taxes that would have been levied against The rule establishes application and eligibility requirements for Tax- the business during the current year. Free NY Areas proposed by universities and colleges, and participating

17 Rule Making Activities NYS Register/December 9, 2015 businesses. These regulations establish paperwork burdens that include EMERGENCY/PROPOSED materials to be submitted as part of applications, documents that must be submitted to maintain eligibility, and information that must be retained for RULE MAKING auditing purposes. NO HEARING(S) SCHEDULED DUPLICATION: The proposed rule will create a new section of the existing regulations Employee Training Incentive Program of the Commissioner of Economic Development, Part 220 of 5 NYCRR. I.D. No. EDV-49-15-00002-EP Accordingly, there is no risk of duplication in the adoption of the proposed Filing No. 1003 rule. ALTERNATIVES: Filing Date: 2015-11-17 No alternatives were considered in regard to creating a new regulation Effective Date: 2015-11-17 in response to the statutory requirement. The regulation implements the statutory requirements of the START-UP NY program regarding the ap- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- plication process for creation of Tax-Free NY Areas and certification as cedure Act, NOTICE is hereby given of the following action: an eligible business. This action is necessary in order to clarify program Proposed Action: Addition of Part 250 to Title 5 NYCRR. participation requirements and is required by the legislation establishing Statutory authority: L. 2015, ch. 59 the START-UP NY program. Finding of necessity for emergency rule: Preservation of general welfare. FEDERAL STANDARDS: Specific reasons underlying the finding of necessity: The Employee There are no federal standards applicable to the START-UP NY Training Incentive Program (“ETIP”) offers qualifying business applicants program; it is purely a State program that offers tax benefits to eligible tax incentives to procure eligible training for their employees, and also to businesses and their employees. Therefore, the proposed rule does not provide internship opportunities for current students, recent graduates, and exceed any federal standard. recent members of the armed forces. These incentives are designed to COMPLIANCE SCHEDULE: encourage employers in strategic industries to address shortages of quali- The affected State agency (Department of Economic Development) and fied employees through qualified training activities rather than relocating the business applicants will be able to achieve compliance with the regula- their operations outside of New York State to attract human capital. tion as soon as it is implemented. Regulatory action is required to implement ETIP. The legislation creat- Regulatory Flexibility Analysis ing ETIP delegated to the Department of Economic Development (the “Department”) the establishment of procedures for the implementation Participation in the START-UP NY program is entirely at the discretion and execution of the program. Without regulatory action by the Depart- of qualifying business that may choose to locate in Tax-Free NY Areas. ment, procedures will not be in place to accept applications from business Neither statute nor the proposed regulations impose any obligation on any desiring to engage in qualified training. business entity to participate in the program. Rather than impose burdens Adoption of this rule will enable the Department to begin accepting ap- on small business, the program is designed to provide substantial tax plications from businesses to participate in ETIP, and promote the objec- benefits to start-up businesses locating in New York, while providing tives of ETIP to support the growth and retention of businesses in New protections to existing businesses against the threat of tax-privileged York State through the development of employee skills. start-up companies locating in the same community. Local governments Subject: Employee Training Incentive Program. may not be able to collect tax revenues from businesses locating in certain Purpose: Establish procedures for the implementation of the Employee Tax-Free NY Areas. However, the regulation is expected to have a net- Training Incentive Program. positive impact on local governments in light of the substantial economic Substance of emergency/proposed rule (Full text is posted at the follow- activity associated with businesses locating their facilities in these ing State website:esd.ny.gov): The Employee Training Incentive Program communities. (“ETIP”) provides tax credits to business entities in strategic industries Because it is evident from the nature of the proposed rule that it will that procure eligible training for their employees in conjunction with creat- have a net-positive impact on small businesses and local government, no ing at least ten (10) net new jobs or making a significant capital invest- further affirmative steps were needed to ascertain that fact and none were ment, as well as to business entities that provide internships in advanced taken. Accordingly, a regulatory flexibility analysis for small businesses technology to current students, recent graduates, and/or recent members of and local government is not required and one has not been prepared. the armed forces through an eligible internship program. Rural Area Flexibility Analysis 1) The rule defines numerous important terms, including, but not limited to, “approved provider of eligible training,” “capital investment,” “eligible The START-UP NY program is open to participation from any business internship program,” and “strategic industry.” that meets the eligibility requirements, and is organized as a corporation, 2) The rule describes the eligibility criteria for business entities apply- partnership, limited liability company, or sole proprietorship. A business’s ing to ETIP based upon procuring eligible training. Such applicants must decision to locate its facilities in a Tax-Free NY Area associated with a ru- operate in the state predominantly in a strategic industry, procure eligible ral university or college would be no impediment to participation; in fact, training from an approved provider, create at least ten (10) net new jobs or START-UP NY allocates space for Tax-Free NY Areas specifically to the make a significant capital investment in conjunction with the training, be upstate region which contains many of New York’s rural areas. Further- in compliance with all worker protection and environmental laws and more, START-UP NY specifically calls for the balanced allocation of regulations, and not owe past due state taxes or local property taxes. 3) The rule describes eligibility criteria for business entities applying to space for Tax-Free NY Areas between eligible rural, urban, and suburban ETIP based upon providing eligible internship training. Such applicants areas in the state. Thus, the regulation will not have a substantial adverse must demonstrate that they will provide an eligible internship program of economic impact on rural areas, and instead has the potential to generate no more than twelve (12) months in duration in the state, be in compliance significant economic activity in upstate rural areas designated as Tax-Free with all worker protection and environmental laws and regulations, not NY Areas. Accordingly, a rural flexibility analysis is not required and one owe past due state taxes or local property taxes, certify that the eligible has not been prepared. internship program will not displace employees of the applicant, and employ fewer than one hundred employees. Job Impact Statement 4) The rule states that initial applications are to be submitted by ap- The regulation establishes procedures and standards for the administration plicants to the Commissioner of Economic Development, and that such of the START-UP NY program. START-UP NY creates tax-free areas applications shall be submitted prior to procuring eligible training or designed to attract innovative start-ups and high-tech industries to New retaining interns. York so as to stimulate economic activity and create jobs. The regulation 5) The total value of tax credits issued by the Commissioner for any will not have a substantial adverse impact on jobs and employment op- taxable year shall not exceed five million dollars, of which at least two portunities; rather, the program is focused on creating jobs. Because it is hundred fifty thousand dollars and no more than one million dollars shall evident from the nature of the rulemaking that it will have either no impact be reserved for applicants providing eligible internship programs. 6) The rule describes the contents of an initial application by an ap- or a positive impact on job and employment opportunities, no further af- plicant applying to procure eligible training for its employees. Such an ap- firmative steps were needed to ascertain that fact and none were taken. plication shall, among other things, identify the approved provider from Accordingly, a job impact statement is not required and one has not been which the applicant proposes to procure eligible training, include a curric- prepared. ulum or other evidence that the training to be procured is eligible training,

18 NYS Register/December 9, 2015 Rule Making Activities estimate the total cost of the training, and establish the applicant’s efforts COSTS: to secure competitive bids from approved providers to provide the eligible I. Costs to private regulated parties (the business applicants): None. The training. proposed rule will not impose any additional costs to eligible business 7) The rule describes the contents of an initial application by an ap- applicants. plicant applying to provide an eligible internship program. Such an ap- II. Costs to the regulating agency for the implementation and continued plication shall, among other things, include a curriculum or other evidence administration of the rule: None. that the internship program will be an eligible internship program provid- III. Costs to the State government: None. ing training in advanced technology, identify the approved provider that IV. Costs to local governments: None. The proposed rule will not will provide the eligible internship program and the employees of such impose any costs on local governments. entity who will be responsible for managing and training interns retained LOCAL GOVERNMENT MANDATES: by the business entity, and estimate the total costs of stipends to be None. There are no local government mandates associated with ETIP. provided to interns participating in the eligible internship program. PAPERWORK: 8) The rule describes the contents of a final application by an applicant, The rule establishes qualification rules and application procedures for including proof that such applicant has completed eligible training and ETIP. The rule entails certain paperwork burdens including materials to created ten (10) net new jobs or made a significant capital investment, or be submitted as part of applications for tax credits, additional documents that such applicant has completed an eligible internship program. the Commissioner may request from applicants as part of his evaluation of 9) The rule indicates that participants in ETIP shall maintain all rele- applications, and certain records that must be maintained by program vant records for the duration of its program participation plus three (3) participants for auditing purposes. years, and make such records available to the Department and its agents DUPLICATION: upon seven (7) days’ notice. The proposed rule will create a new section of the existing regulations This notice is intended: to serve as both a notice of emergency adoption of the Commissioner of the Department of Economic Development, Part and a notice of proposed rule making. The emergency rule will expire 250 of 5 NYCRR. Accordingly, there is no risk of duplication in the adop- February 14, 2016. tion of the proposed rule. ALTERNATIVES: Text of rule and any required statements and analyses may be obtained No alternatives were considered with regard to creating a new rule in from: Phillip Harmonick, New York State Department of Economic response to the statutory requirement. The rule establishes the procedures Development, 625 Broadway, 8th Floor, Albany, NY 12245, (518) 292- for business entities to apply to ETIP. This action is necessary in order to 5112, email: [email protected] clarify how qualifying businesses in strategic industries may receive Data, views or arguments may be submitted to: Same as above. program benefits, and is required by the legislation establishing ETIP. Public comment will be received until: 45 days after publication of this FEDERAL STANDARDS: notice. There are no federal standards applicable to ETIP; it is purely a state Regulatory Impact Statement program that offers tax benefits to business entities in strategic industries STATUTORY AUTHORITY: incurring qualifying costs for eligible training or an eligible internship Chapter 59 of the Laws of 2015 requires the Commissioner of the program in advanced technology. Therefore, the proposed rule does not Department of Economic Development (the “Department”) to promulgate exceed any federal standard. regulations establishing the application process for the Employee Training COMPLIANCE SCHEDULE: Incentive Program (“ETIP”). These procedures include the process for ap- The affected agency (Department of Economic Development) and any plying for tax credits under ETIP, standards for the assessment of applica- applicants to ETIP will be able to achieve compliance with the regulation tions, and other provisions deemed necessary and appropriate. This regula- as soon as it is implemented. tory impact statement is submitted in conjunction with the submission of a Regulatory Flexibility Analysis permanent regulation. Participation in the Employee Training Incentive Program (“ETIP”) is LEGISLATIVE OBJECTIVES: entirely at the discretion of qualifying business entities. Neither statute nor The proposed rule gives effect to the intention of the legislature in the proposed rule impose any obligation on any local government or busi- adopting ETIP to encourage employers in strategic industries, character- ness entity to participate in the program. The proposed rule does not ized by technological disruption and a shortage of potential employees impose any adverse economic impact or compliance requirements on small within New York State, to develop talent in New York State through businesses or local governments. In fact, the proposed rule may have a eligible training and internship programs rather than relocating to other positive economic impact on small businesses. Only small businesses, regions to secure skilled employees. those with one hundred (100) employees or fewer, are eligible to apply to NEEDS AND BENEFITS: ETIP for benefits associated with providing an eligible internship program. The rulemaking is necessary in order to implement Article 22 of the Because it is evident from the nature of the proposed rule that it will Economic Development Law, which establishes ETIP. The statute directs have either no impact or a positive impact on small businesses and local the Commissioner to establish procedures for the implementation and exe- government, no further affirmative steps were needed to ascertain that fact cution of ETIP. and none were taken. Accordingly, a regulatory flexibility analysis for New York suffers from a skills gap in its workforce, resulting in small businesses and local governments is not required and one has not thousands of job vacancies that employers are unable to fill due to a short- been prepared. age of qualified workers. Without action on the part of the state, employ- Rural Area Flexibility Analysis ers in industries subject to such shortages of skilled workers may be The Employee Training Incentive Program (“ETIP”) provides tax benefits required to relocate outside of New York in order to retain adequate to participating business entities engaged in strategic industries, and does numbers of skilled employees. This problem is made more acute by the action of other states in the region to create programs to cultivate pools of not distinguish between entities located in rural and urban areas of New skilled labor, creating an incentive for employers in New York to relocate York. Furthermore, the rule does not impose reporting, recordkeeping or jobs outside of the state. To address this problem, ETIP provides tax credit other compliance requirements on public or private entities in rural areas, incentives to business entities that procure eligible training or provide except for any rural business entities voluntarily applying to participate in eligible internship programs in advanced technology. ETIP. Therefore, the rule will not have a substantial adverse economic Business applicants to the program must first establish that they are impact on rural areas. Accordingly, a rural flexibility analysis is not engaged in a strategic industry, as evidenced by factors such as shortages required and one has not been prepared. of skilled employees and technological disruption in the industry. Job Impact Statement Furthermore, such applicants must demonstrate, among other things, that The proposed rule establishes application procedures for business entities they will be procuring eligible training from an approved provider or to apply to the Employee Training Incentive Program (“ETIP”) for tax providing an eligible internship program in advanced technology. In order credit benefits associated with providing eligible training to their employ- to begin to receive applications from business entities, the Department ees, or an eligible internship program in advanced technology. The must establish application criteria describing the contents of applications, defining key terms such as “approved provider of eligible training” and program aims to induce employers to provide training in order to cultivate “strategic industry,” and establishing procedures for the processing of a pool of skilled workers who can meet the requirements for unfilled posi- applications. tions in strategic industries. The rule will not have a substantial adverse The proposed rule establishes the necessary application procedures for impact on jobs and employment opportunities; rather, the program is the Department to receive applications by business entities to ETIP. These intended to increase employment opportunities. Because it is evident from rules allow for the prompt and efficient commencement of ETIP, clarify the nature of the rulemaking that it will have either no impact or a positive which business entities will be eligible to participate in ETIP, and promote impact on job and employment opportunities, no further affirmative steps the cultivation of the skilled New York workforce necessary to support were needed to ascertain that fact and none were taken. Accordingly, a job economic development. impact statement is not required and one has not been prepared.

19 Rule Making Activities NYS Register/December 9, 2015

CONDUCTED PRIOR TO THE 2015-2016 SCHOOL YEAR OR FOR ANNUAL PROFESSIONAL PERFORMANCE REVIEWS CONDUCTED Education Department PURSUANT TO A COLLECTIVE BARGAINING AGREEMENT ENTERED INTO ON OR BEFORE APRIL 1, 2015 WHICH REMAINS IN EFFECT ON OR AFTER APRIL 1, 2015 UNTIL A SUBSEQUENT EMERGENCY AGREEMENT IS REACHED RULE MAKING 3. Subdivision (b) of section 30-2.1 of the Rules of the Board of Regents is amended, effective November 27, 2015, to read as follows: Annual Professional Performance Reviews of Classroom (b) For annual professional performance reviews conducted by school Teachers and Building Principals districts or BOCES [in] from the 2012-2013 school year [and any school year thereafter] through the 2015-2016 school year or for any annual I.D. No. EDU-27-15-00019-E professional performance review conducted pursuant to a collective Filing No. 1023 bargaining agreement entered into on or before April 1, 2015 that remains in effect on and after April 1, 2015 until a successor agreement is reached, Filing Date: 2015-11-24 the governing body of each school district and BOCES shall ensure that Effective Date: 2015-11-27 the reviews of all classroom teachers and building principals are conducted in accordance with the requirements of section 3012-c of the Education PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Law and the provisions of this Subpart. cedure Act, NOTICE is hereby given of the following action: 4. Subdivision (d) of section 30-2.1 of the Rules of the Board of Regents Action taken: Amendment of section 100.2(o) and Subpart 30-2; and ad- is amended, effective November 27, 2015, to read as follows: dition of Subpart 30-3 to Title 8 NYCRR. (d) Annual professional performance reviews of classroom teachers and Statutory authority: Education Law, sections 101 (not subdivided), 207 building principals conducted pursuant to this Subpart shall be a signifi- (not subdivided), 215 (not subdivided), 305(1), (2), 3009(1), 3012-c(1)- cant factor for employment decisions, including but not limited to, promo- (10) and 3012-d(1)-(15); L. 2015, chs. 20 and 56, part EE, subparts D and tion, retention, tenure determinations, termination and supplemental E compensation, in accordance with Education Law § 3012-c(1). Nothing in Finding of necessity for emergency rule: Preservation of general welfare. this Subpart shall be construed to affect the unfettered statutory right of a school district or BOCES to terminate a probationary teacher or principal Specific reasons underlying the finding of necessity: The proposed rule for any statutorily and constitutionally permissible reasons [other than the is necessary to implement Education Law sections 3012-c and 3012-d, as amended and added by Subpart E of Part EE of Chapter 56 of the Laws of performance of the teacher or principal in the classroom or school,] includ- 2015, regarding annual professional performance reviews (APPRs) of ing but not limited to misconduct, and until a tenure decision is made, the classroom teachers and building principals. performance of the teacher or principal in the classroom or school. [For The proposed amendment was adopted by emergency action at the June purposes of this subdivision, Education Law § 3012-c(1) and (5)(b), per- 15-16, 2015 Board of Regents meeting. A Notice of Proposed Rule Mak- formance shall mean a teacher’s or principal’s overall composite rating ing was published in the State Register on July 8, 2015. The Department pursuant to an annual professional performance review conducted under subsequently revised the proposed rule to address public comment this Subpart.] received. The Board of Regents adopted the revised rule as an emergency 5. Subdivision (c) of section 30-2.11 of the Rules of the Board of measure at its September meeting, effective September 28, 2015. A No- Regents is amended, effective November 27, 2015, to read as follows: tice of Revised Rule Making was published in the State Register on (c) Nothing in this section shall be construed to alter or diminish the October 7, 2015. Since the Board of Regents meets at fixed intervals, the authority of the governing body of a school district or BOCES to grant or earliest the proposed rule can be presented for regular (non-emergency) deny tenure to or terminate probationary teachers or probationary building adoption, after expiration of the required 30-day public comment period principals during the pendency of an appeal pursuant to this section for provided for in the State Administrative Procedure Act (SAPA) sections statutorily and constitutionally permissible reasons [other than] including 202(4-a), would be the November 16-17, 2015 Regents meeting. Further- the teacher’s or principal’s performance that is the subject of the appeal. more, pursuant to SAPA section 203(1), the earliest effective date of the 6. A new section 30-2.13 of the Rules of the Board of Regents is added, proposed rule, if adopted at the November meeting, would be December effective November 27, 2015, to read as follows: 2, 2015, the date a Notice of Adoption would be published in the State Register. § 30-2.13. Challenges to State-Provided Growth Score Results for the However, the September emergency rule will expire on November 26, 2014-2015 School Year and Thereafter. 2015, 60 days after its filing with the Department of State. Emergency ac- (a) A teacher/principal shall have the right to challenge their State- tion is therefore necessary for the preservation of the general welfare to provided growth score under this Subpart; provided that the teacher/ ensure that the proposed amendment adopted by emergency action at the principal provides sufficient documentation that he/she meets at least one June 2015 Regents meeting and revised at the September 2015 Regents of the following criteria in their annual evaluation: meeting, remains continuously in effect until the effective date of its per- (1) a teacher/principal was rated Ineffective on his/her State- manent adoption in order to timely implement provisions of Subpart E of provided growth score and Highly Effective on the other measures of Part EE of Chapter 56 of the Laws of 2015 relating to a new annual evalu- teacher/leader effectiveness subcomponent in the current year and was ation system for classroom teachers and building principals. rated either Effective or Highly Effective on his/her State-provided growth Subject: Annual Professional Performance Reviews of Classroom Teach- score in the previous year; or ers and Building Principals. (2) a high school principal of a building that includes at least all of Purpose: To Implement subparts D and E of part EE of chapters 20 and 56 grades 9-12, was rated Ineffective on the State-provided growth score but of the Laws of 2015. such percent of students as shall be established by the Commissioner in Text of emergency rule: 1. Subparagraph (ii) of paragraph (1) of section his/her school/program within four years of first entry into grade 9 100.2(o) of the Commissioner’s regulations is amended, effective received results on department-approved alternative examinations in En- November 27, 2015, to read as follows: glish Language Arts and/or or mathematics as described in section (ii) Annual review. The governing body of each school district and 100.2(f) of this Title (including, but not limited to, advanced placement BOCES shall ensure that the performance of all teachers providing examinations, and/or International Baccalaureate examinations, SAT II, instructional services or pupil personnel services, as defined in section 80- etc.) scored at proficiency (i.e., a Level 3 or higher). 1.1 of this Title, is reviewed annually in accordance with this subdivision, (b) A teacher/principal shall submit an appeal to the Department, in a except evening school teachers of adults enrolled in nonacademic, manner prescribed by the Commissioner, within 20 days of receipt of his/ vocational subjects; and supplementary school personnel, as defined in her overall annual professional performance review rating or the effective section 80-5.6 of this Title, and any classroom teacher subject to the evalu- date of this section, whichever is later, and submit a copy of the appeal to ation requirements prescribed in [Subpart] Subparts 30-2 and 30-3 of this the school district and/or BOCES. The school district and/or BOCES shall Title. have ten days from receipt of a copy of such appeal to submit a reply to 2. The title of Subpart 30-2 of the Rules of the Board of Regents is the Department. amended effective November 27, 2015, to read as follows: (c) Based on the documentation received, if the Department overturns a SUBPART 30-2 teacher’s/principal’s rating on the State-provided growth score, the ANNUAL PROFESSIONAL PERFORMANCE REVIEWS OF district/BOCES shall substitute the teacher’s/principal’s results on the CLASSROOM TEACHERS AND BUILDING PRINCIPALS back-up SLO developed by the district/BOCES for such teacher/principal.

20 NYS Register/December 9, 2015 Rule Making Activities

If a back-up SLO was not developed, then the teacher’s/principal’s over- successor collective bargaining agreement, all the requirements of Educa- all composite score and rating shall be based on the portions of their an- tion Law § 3012-d and this Subpart shall apply. nual professional performance review not affected by the nullification of (d) Annual professional performance reviews of classroom teachers the State-provided growth score. Provided, however, that following a suc- and building principals shall be a significant factor for employment deci- cessful appeal under paragraph (1) of subdivision (a) of this section, if a sions, including but not limited to, promotion, retention, tenure determi- back-up SLO is used a teacher/principal shall not receive a score/rating nation, termination, and supplemental compensation, in accordance with higher than developing on such SLO. Education Law § 3012-d(1). Such evaluations shall also be a significant (d) An evaluation that is the subject of an appeal shall not be sought to factor in teacher and principal development, including but not limited to be offered in evidence or placed in evidence in any proceeding conducted coaching, induction support, and differentiated professional development. pursuant to Education Law sections 3020-a and 3020-b or any locally Nothing herein shall be construed to affect the unfettered statutory right of negotiated alternate disciplinary procedure until the appeal process is a district to terminate a probationary (non-tenured) teacher or principal concluded. for any statutorily and constitutionally permissible reasons. (e) Nothing in this section shall be construed to alter or diminish the (e) The Board of Regents shall convene an assessment and evaluation authority of the governing body of a district to grant or deny tenure to or workgroup or workgroups, comprised of stakeholders and experts in the field to provide recommendations to the Board of Regents on assessments terminate probationary teachers or probationary building principals dur- and evaluations that could be used for annual professional performance ing the pendency of an appeal pursuant to this section for statutorily and reviews in the future. constitutionally permissible reasons, including the teacher’s/principal’s § 30-3.2 Definitions. As used in this Subpart: performance that is the subject of the appeal. (a) Approved teacher or principal practice rubric shall mean a rubric (f) Nothing in this Subpart shall be construed to authorize a teacher/ approved by the commissioner for inclusion on the State Education principal to commence the appeal process prior to receipt of his/her over- Department's list of approved rubrics in teacher or principal evaluations. all rating from the district/BOCES. (b) Approved student assessment shall mean a student assessment ap- (g) During the pendency of an appeal under this section, nothing shall proved by the commissioner for inclusion in the State Education Depart- be construed to alter the obligation of a school district/BOCES to develop ment’s lists of approved student assessments to measure student growth and implement a teacher improvement plan or principal improvement for use in the mandatory subcomponent and/or for use in the optional plan during the pendency of an appeal. subcomponent of the student performance category. (h) Nothing in this section shall be construed to limit any rights of a (1) Approved assessments in grades kindergarten through grade two. teacher/principal under section 30-2.11 of this Subpart. Traditional standardized assessments in grades kindergarten through (i) Notwithstanding any other provision of rule or regulation to the con- grade two shall not be on the approved list. However, an assessment that trary, a high school principal of a building that includes at least all of is not a traditional standardized assessment shall be considered an ap- grades 9-12 who meets either of the criteria in paragraphs (1) or (2) of proved student assessment if the superintendent, district superintendent, this subdivision shall not receive a State-provided growth score and shall or chancellor of a district that chooses to use such assessment certifies in instead use back-up SLOs: its annual professional performance review plan that the assessment is not (1) the principal would be rated Ineffective or Developing on the a traditional standardized assessment, and that the assessment meets the State-provided growth score but the graduation rate of the students in that minimum requirements prescribed by the Commissioner in guidance. school building exceeded 90%, and the proportion of the student popula- (c) Classroom teacher or teacher shall mean a teacher in the classroom tion included in either the ELA Regents Median Growth Percentile or the teaching service as that term is defined in section 80-1.1 of this Title who Algebra Regents Median Growth Percentile was less than ten percent of is a teacher of record as defined in this section, except evening school the total enrollment for the school; or the principal teachers of adults enrolled in nonacademic, vocational subjects, and (2) has no Combined Median Growth Percentile rating or score, and supplemental school personnel as defined in section 80-5.6 of this Title. the proportion of the student population included in the ELA Regents (d) Common branch subjects shall mean common branch subjects as Median Growth Percentile and Algebra Regents Median Growth Percen- defined in section 80-1.1 of this Title. tile was less than five percent of the total enrollment for the school in one (e) Co-principal means a certified administrator under Part 80 of this subject, and less than ten percent of the total enrollment in the other Title, designated by the school's controlling authority to have executive subject; authority, management, and instructional leadership responsibility for all (3) If a back-up SLO was not developed, then the principal’s overall or a portion of a school or BOCES-operated instructional program in a composite score and rating shall be based on the remaining portions of situation in which more than one such administrator is so designated. The their annual professional performance review. term co-principal implies equal line authority, with each designated 7. A new Subpart 30-3 of the Rules of the Board of Regents shall be administrator reporting to a district-level or comparable BOCES-level added, effective November 27, 2015, to read as follows: supervisor. SUBPART 30-3 (f) Developing means an overall rating of Developing received by a ANNUAL PROFESSIONAL PERFORMANCE REVIEWS OF teacher or building principal, based on the ratings an educator received CLASSROOM TEACHERS AND BUILDING PRINCIPALS FOR THE in the student performance category and observation/school visit category 2015-2016 SCHOOL YEAR AND THEREAFTER pursuant to the matrix prescribed in section 30-3.6 of this Subpart. § 30-3.1 Applicability. (g) District means school district and/or board of cooperative educa- (a) For annual professional performance reviews conducted by districts tional services, unless otherwise provided in this Subpart. for the 2015-2016 school year and any school year thereafter, the govern- (h) Effective means an overall rating of Effective received by a teacher ing body of each district shall ensure that the reviews of all classroom or building principal, based on the ratings an educator received in the teachers and building principals are conducted in accordance with the student performance category and observation/school visit category pur- requirements of Education Law § 3012-d and this Subpart, except as suant to the matrix prescribed in section 30-3.6 of this Subpart. otherwise provided in subdivision (b) of this section. (i) Evaluator shall mean any individual who conducts an evaluation of (b) The requirements of Education Law § 3012-c and Subpart 30-2 of a classroom teacher or building principal under this Subpart. this Part shall continue to apply to annual professional performance (j) Highly Effective means an overall rating of Highly Effective received reviews conducted prior to the 2015-2016 school year and thereafter, by a teacher or building principal, based on the ratings an educator where such reviews are conducted pursuant to a collective bargaining received in the student performance category and observation/school visit agreement entered into on or before April 1, 2015 that remains in effect category pursuant to the matrix prescribed in section 30-3.6 of this on and after April 1, 2015 until entry into a successor agreement. Subpart. (c) In accordance with Education Law § 3012-d(12), all collective (k) Ineffective means an overall rating of Ineffective received by a bargaining agreements entered into after April 1, 2015 shall be consistent teacher or building principal, based on the ratings an educator received with the requirements of Education Law § 3012-d and this Subpart, unless in the student performance category and observation/school visit category such agreement related to the 2014-2015 school year only. Nothing in this pursuant to the matrix prescribed in section 30-3.6 of this Subpart. Subpart shall be construed to abrogate any conflicting provisions of any (l) Lead evaluator shall mean the primary individual responsible for collective bargaining agreement in effect on and after April 1, 2015 dur- conducting and completing an evaluation of a classroom teacher or building the term of such agreement and until entry into a successor collective ing principal under this Subpart. To the extent practicable, the building bargaining agreement, provided that notwithstanding any other provision principal, or his or her designee, shall be the lead evaluator of a classroom of law to the contrary, upon expiration of such term and the entry into a teacher in this Subpart. To the extent practicable, the lead evaluator of a

21 Rule Making Activities NYS Register/December 9, 2015 principal should be the superintendent or BOCES district superintendent (w) Teacher(s) of record shall be defined in a manner prescribed by the or his/her designee. commissioner. (m) Leadership standards shall mean the Educational Leadership (x) Teaching Standards are enumerated below: Policy Standards: ISLLC 2008 as adopted by the National Policy Board (1) the teacher acquires knowledge of each student, and demonstrates for Educational Administration (Council of Chief State School Officers, knowledge of student development and learning to promote achievement Washington DC, One Massachusetts Avenue, NW, Suite 700, Washington, for all students; DC 20001-1431; 2008- available at the Office of Counsel, State Educa- (2) the teacher knows the content they are responsible for teaching, tion Department, State Education Building, Room 148, 89 Washington and plans instruction that ensures growth and achievement for all stu- Avenue, Albany, New York 12234). The Leadership Standards provide dents; that an education leader promotes the success of every student by: (3) the teacher implements instruction that engages and challenges (1) facilitating the development, articulation, implementation, and all students to meet or exceed the learning standards; stewardship of a vision of learning that is shared and supported by the (4) the teacher works with all students to create a dynamic learning school community; environment that supports achievement and growth; (2) advocating, nurturing and sustaining a school culture and (5) the teacher uses multiple measures to assess and document instructional program conducive to student learning and staff profes- student growth, evaluate instructional effectiveness, and modify instruc- sional growth; tion; (3) ensuring management of the organization, operations and re- (6) the teacher demonstrates professional responsibility and engages sources for a safe, efficient, and effective learning environment; relevant stakeholders to maximize student growth, development, and (4) collaborating with families and community members, responding learning; and to diverse community interests and needs, and mobilizing community re- (7) the teacher sets informed goals and strives for continuous profes- sources; sional growth. (5) acting with integrity, fairness, and in an ethical manner; and (y) Testing standards shall mean the ‘‘Standards for Educational and (6) understanding, responding to, and influencing the larger politi- Psychological Testing’’ (American Psychological Association, National cal, social, economic, legal, and cultural context. Council on Measurement in Education, and American Educational (n) Principal shall mean a building principal or an administrator in Research Association; 2014- available at the Office of Counsel, State charge of an instructional program of a board of cooperative educational Education Department, State Education Building, Room 148, 89 Washing- services. ton Avenue, Albany, New York 12234). (o) School building shall mean a school or program identified by its (z) The governing body of each district shall mean the board of educa- Basic Educational Data System (BEDS) code, as determined by the tion of each district, provided that, in the case of the City School District commissioner. of the City of New York, governing body shall mean the Chancellor of the (p) State approved student growth model means a statistical model that City School District of the City of New York or, to the extent provided by uses prior academic history, poverty, students with disabilities and En- law, the board of education of the City School District of the City of New glish language learners, and any additional factors approved by the Com- York and, in the case of BOCES, governing body shall mean the board of missioner to measure student growth. cooperative educational services. (q) State-designed supplemental assessment shall mean a selection of (aa) Traditional standardized assessment shall mean a systematic state tests or assessments developed or designed by the Department, or method of gathering information from objectively scored items that allow that the Department purchased or acquired from (i) another state; (ii) an the test taker to select one or more of the given options or choices as their institution of higher education; or (iii) a commercial or not-for-profit response. Examples include multiple-choice, true-false, and matching entity, provided that such entity must be objective and may not have a items. Traditional standardized assessments are those that require the conflict of interest or appearance of a conflict of interest; and tests or as- student (and not the examiner/assessor) to directly use a ‘‘bubble’’ answer sessments that have been previously designed or acquired by local sheet. Traditional standardized assessments do not include performance districts, but only if the Department significantly modifies growth targets assessments or assessments in which students perform real-world tasks or scoring bands for such tests or assessments or otherwise adapts the test that demonstrate application of knowledge and skills; assessments that or assessment to the Department’s requirements. Such assessments may are otherwise required to be administered by Federal law; and/or assess- only be used in the optional student performance subcomponent in order ments used for diagnostic or formative purposes, including but not limited to produce a growth score calculated pursuant to a State-provided or ap- to assessments used for diagnostic screening required by Education Law proved growth model. section 3208(5). (r) Student growth means the change in student achievement for an in- § 30-3.3. Requirements for annual professional performance review dividual student between two or more points in time. plans submitted under this Subpart. (s) Student growth percentile score shall mean the result of a statistical (a) Applicability. model that calculates each student's change in achievement between two (1) The governing body of each district shall adopt a plan, in a form or more points in time on a State assessment or other comparable growth and timeline prescribed by the commissioner, for the annual professional measure and compares each student's performance to that of similarly performance review of all of the district’s classroom teachers and build- achieving students. ing principals in accordance with the requirements of Education Law sec- (t) Student Learning Objective(s) (SLOs) are academic goals for an tion 3012-d and this Subpart and shall submit such plan to the commis- educator’s students that are set at the start of a course, except in rare cir- sioner for approval. The commissioner shall approve or reject the plan. cumstances as defined by the Commissioner. SLOs represent the most The commissioner may reject a plan that does not rigorously adhere to the important learning for the year (or semester, where applicable). They provisions of Education Law section 3012-d and the requirements of this must be specific and measurable, based on available prior student learn- Subpart. Absent a finding by the Commissioner of extraordinary circum- ing data, and aligned to the New York State learning standards, as well as stances, if any material changes are made to the plan, the district must to any other school and district priorities. An educator’s scores are based submit the material changes by March 1 of each school year, on a form upon the degree to which his or her goals were attained. prescribed by the commissioner, to the commissioner for approval. The (u) Superintendent of schools shall mean the chief school officer of a provisions of Education Law § 3012-c(2)(k) shall only apply to the extent district or the district superintendent of a board of cooperative educational provided in this paragraph. services, provided that in the case of the City School District of the City of (2) Such plan shall be filed in the district office, as applicable, and New York, superintendent shall mean the Chancellor of the City School made available to the public on the district’s web-site no later than District of the City of New York or his or her designee. September 10th of each school year, or within 10 days after the plan’s ap- (v) Teacher or principal state provided growth scores shall mean a proval by the commissioner, whichever shall later occur. measure of central tendency of the student growth percentile scores (3) Any plan submitted to the commissioner shall include a signed through the use of standard deviations and confidence ranges to identify certification on a form prescribed by the commissioner, by the superinten- with statistical certainty educators whose students’ growth is well above dent, district superintendent or chancellor, attesting that: or well below average compared to similar students for a teacher's or (i) the amount of time devoted to traditional standardized assess- principal's students after the following student characteristics are taken ments that are not specifically required by State or Federal law for each into consideration: poverty, students with disabilities and English classroom or program of the grade does not exceed, in the aggregate, one language learners. Additional factors may be added by the Commissioner, percent of the minimum in required annual instructional hours for such subject to approval by the Board of Regents. classroom or program of the grade; and

22 NYS Register/December 9, 2015 Rule Making Activities

(ii) the amount of time devoted to test preparation under standard- (1) Mandatory first subcomponent. ized testing conditions for each grade does not exceed, in the aggregate, (i) for a teacher whose course ends in a State-created or adminis- two percent of the minimum required annual instructional hours for such tered test for which there is a State-provided growth model and at least grade. Time devoted to teacher administered classroom quizzes or exams, 50% of a teacher’s students are covered under the State-provided growth portfolio reviews, or performance assessments shall not be counted measure, such teacher shall have a State-provided growth score based on towards the limits established by this subdivision. In addition, formative such model; and and diagnostic assessments shall not be counted towards the limits (ii) for a teacher whose course does not end in a State-created or established by this subdivision and nothing in this subdivision shall be administered test or where less than 50% of the teacher’s students are construed to supersede the requirements of a section 504 plan of a quali- covered by a State-provided growth measure, such teacher shall have a fied student with a disability or Federal law relating to English language Student Learning Objective (SLO) developed and approved by his/her su- learners or the individualized education program of a student with a perintendent or his or her designee, using a form prescribed by the com- disability. missioner, consistent with the SLO process determined or developed by (b) Content of the plan. The annual professional performance review the commissioner, that results in a student growth score; provided that, plan shall: for any teacher whose course ends in a State-created or administered as- (1) describe the district's process for ensuring that the department sessment for which there is no State-provided growth model, such assess- receives accurate teacher and student data, including enrollment and at- ment must be used as the underlying assessment for such SLO. The SLO tendance data and any other student, teacher, school, course and teacher/ process determined by the Commissioner shall include a minimum growth student linkage data necessary to comply with this Subpart, in a format target of one year of expected growth, as determined by the superinten- and timeline prescribed by the commissioner. This process shall also dent or his or her designee. Such targets, as determined by the superinten- provide an opportunity for every classroom teacher and building principal dent or his or her designee, may take the following characteristics into to verify the subjects and/or student rosters assigned to them; account: poverty, students with disabilities, English language learners (2) describe how the district will report to the Department the indi- status and prior academic history. SLOs shall include the following SLO vidual scores and ratings for each subcomponent and category and over- elements, as defined by the commissioner in guidance: all rating for each classroom teacher and building principal in the district, (a) student population; in a format and timeline prescribed by the commissioner; (b) learning content; (3) describe the assessment development, security, and scoring (c) interval of instructional time; processes utilized by the district. Such processes shall ensure that any as- (d) evidence; sessments and/or measures used to evaluate teachers and principals under (e) baseline; this section are not disseminated to students before administration and (f) target; that teachers and principals do not have a vested interest in the outcome (g) criteria for rating a teacher Highly Effective, Effective, of the assessments they score; Developing or Ineffective (“HEDI”); and (4) describe the details of the district’s evaluation system, which shall (h) rationale. include, but not be limited to, whether the district chose to use each of the (iii) for a teacher whose course does not end in a State-created or optional subcomponents in the student performance and observation/ administered test or where a State-provided growth measure is not school visit categories and the assessments and/or measures, if any, that determined, districts may determine whether to use SLOs based on a list are used in each subcomponent of the student performance category and of approved student assessments, or a school-or-BOCES-wide group, the observation/school visit category and the name of the approved team, or linked results based on State/Regents assessments, as defined by teacher and/or principal practice rubrics that the district uses or evidence the Commissioner in guidance. that a variance has been granted by the Commissioner from this require- (iv) Districts shall develop back-up SLOs for all teachers whose ment; courses end in a State created or administered test for which there is a (5) describe how the district will provide timely and constructive State-provided growth model, to use in the event that no State-provided feedback to classroom teachers and building principals on their annual growth score can be generated for such teachers. professional performance review; (2) Optional second subcomponent. A district may locally select a (6) describe the appeal procedures that the district is using pursuant second measure that shall be applied in a consistent manner, to the extent to section 30-3.12 of this section; and practicable, across the district based on State/Regents assessments or (7) include any certifications required under this Subpart. State-designed supplemental assessments and be either: (c) The entire annual professional performance review shall be (i) a second State-provided growth score on a state-created or completed and provided to the teacher or the principal as soon as administered test; provided that the State-provided growth measure is dif- practicable but in no case later than September 1st of the school year next ferent than that used in the required subcomponent of the student perfor- following the school year for which the teacher or principal’s performance category, which may include one or more of the following mance is measured. The teacher’s and principal’s score and rating on the measures: observation/school visit category and in the student performance cate- (a) a teacher-specific growth score computed by the State based gory, if available, shall be computed and provided to the teacher or on percentage of students who achieve a State-determined level of growth principal, in writing, by no later than the last day of the school year for (e .g., percentage of students whose growth is above the median for simi- which the teacher or principal is being measured, but in no case later than lar students); September 1st of the school year next following the school year for which (b) school-wide growth results based on a State-provided school- the teacher or principal’s performance is measured. Nothing in this wide growth score for all students attributable to the school who took the subdivision shall be construed to authorize a teacher or principal to com- State English language arts or math assessment in grades 4-8; or mence the appeal process prior to receipt of his or her overall rating. (c) school-wide, group, team, or linked growth results using Districts shall ensure that there is a complete evaluation for all classroom available State-provided growth scores that are locally-computed; or teachers and building principals, which shall include scores and ratings (ii) a growth score based on a State-designed supplemental assess- on the subcomponent(s) of the student performance category and the ment, calculated using a State-provided or approved growth model. Such observation/school visit category and the combined category scores and growth score may include school or BOCES –wide group, team, or linked ratings, determined in accordance with the applicable provisions of results where the State-approved growth model is capable of generating Education Law § 3012-d and this Subpart, for the school year for which such a score. the teacher’s or principal’s performance is measured. (3) All State-provided or approved growth model scores must control § 30-3.4 Standards and criteria for conducting annual professional for poverty, students with disabilities, English language learners status performance reviews of classroom teachers under Education Law and prior academic history. For SLOs, these characteristics may be taken § 3012-d. into account through the use of targets based on one year of “expected (a) Annual professional performance reviews conducted under this sec- growth”, as determined by the superintendent or his or her designee. tion shall differentiate teacher effectiveness resulting in a teacher being (4) The district shall measure student growth using the same rated Highly Effective, Effective, Developing or Ineffective based on measure(s) of student growth for all classroom teachers in a course and/or multiple measures in two categories: the student performance category grade level in a district. and the teacher observation category. (c) Weighting of Subcomponents Within Student Performance Category. (b) Student performance category. The student performance category (1) If a district does not locally select to use the optional second shall have one mandatory subcomponent and one optional subcomponent student growth subcomponent, then the mandatory subcomponent shall be as follows: weighted at 100%.

23 Rule Making Activities NYS Register/December 9, 2015

(2) If the optional second student growth subcomponent is selected, tion pursuant to clause (a) of this paragraph. An independent trained then the mandatory subcomponent shall be weighted at a minimum of 50% evaluator may be employed within the district, but may not be assigned to and the optional second subcomponent shall be weighted at no more than the same school building as the teacher being evaluated. 50%. (1) A rural school district, as defined by the Commissioner in (3) Each measure used in the student performance category (State guidance, or a school district with only one registered school pursuant to section 100.18 of the Commissioner’s regulations may apply to the provided growth score, SLOs, State-designed supplemental assessments) Department for a hardship waiver on an annual basis, in a timeframe and must result in a score between 0 and 20. The State will generate scores of manner prescribed by the Commissioner, if due to the size and limited re- 0-20 for measures using a State-provided growth score. Districts shall sources of the school district, it is unable to obtain an independent evalu- calculate scores for SLOs in accordance with the minimum percentages ator within a reasonable proximity without an undue burden to the school prescribed in the table below; provided however that for teachers with district. courses with small “n” sizes as defined by the Commissioner in guidance, (ii) Optional third subcomponent. The observations category may districts shall calculate scores for SLOs using a methodology prescribed include a third optional subcomponent based on classroom observations by the Commissioner in guidance. For all other measures that are not conducted by a trained peer teacher rated Effective or Highly Effective on his or her overall rating in the prior school year from the same school or State-provided growth measures, scores of 0-20 shall be computed locally from another school in the district. in accordance with the State provided or approved growth model used. (iii) Frequency and Duration of Observations. The frequency and duration of observations shall be determined locally. SLOs (iv) All observations must be conducted using a teacher practice Scoring Range rubric approved by the commissioner pursuant to a Request for Qualifica- Percent of Students Meeting tion (“RFQ”) process, unless the district has an approved variance from Target the Commissioner. 0-4% 0 (a) Variance for existing rubrics. A variance may be granted to a district that seeks to use a rubric that is either a close adaptation of a 5-8% 1 rubric on the approved list, or a rubric that was self-developed or 9-12% 2 developed by a third-party, upon a finding by the Commissioner that the 13-16% 3 rubric meets the criteria described in the Request for Qualification and the district has demonstrated that it has made a significant investment in 17-20% 4 the rubric and has a history of use that would justify continuing the use of 21-24% 5 that rubric. (b) Variance for use of new innovative rubrics. A variance may 25-28% 6 be granted to a district that seeks to use a newly developed rubric, upon a 29-33% 7 finding by the Commissioner that the rubric meets the criteria described 34-38% 8 in the RFQ, has demonstrated how it will ensure inter-rater reliability and the rubric's ability to provide differentiated results over time. 39-43% 9 (v) All observations for a teacher for the school year must use the 44-48% 10 same approved rubric; provided that districts may locally determine 49-54% 11 whether to use different rubrics for teachers who teach different grades and/or subjects during the school year. 55-59% 12 (vi) At least one of the mandatory observations must be 60-66% 13 unannounced. (vii) Observations may occur either live or via recorded video, as 67-74% 14 determined locally. 75-79% 15 (viii) Nothing in this Subpart shall be construed to limit the discre- 80-84% 16 tion of a board of education, superintendent of schools or a principal or other trained administrator to conduct observations in addition to those 85-89% 17 required by this section for non-evaluative purposes. 90-92% 18 (ix) Observations must be based only on observable rubric 93-96% 19 subcomponents. The evaluator may select a limited number of observable rubric subcomponents for focus within a particular observation, so long 97-100% 20 as all observable Teaching Standards/Domains are addressed across the total number of annual observations. (d) Overall Rating on Student Performance Category. (x) New York State Teaching Standards/Domains that are part of (1) Multiple student performance measures shall be combined using the rubric but not observable during the classroom observation may be a weighted average pursuant to subdivision (c) of this section to produce observed during any optional pre-observation conference or post- an overall student performance category score of 0 to 20. Based on such observation review or other natural conversations between the teacher score, an overall student performance category rating shall be derived and the evaluator and incorporated into the observation score. from the table below: (xi) Points shall not be allocated based on any artifacts, unless such artifact constitutes evidence of an otherwise observable rubric Overall Student Performance Category Score subcomponent (e.g., a lesson plan viewed during the course of the observa- and Rating tion may constitute evidence of professional planning). Minimum Maximum (xii) Each observation shall be evaluated on a 1-4 scale based on a State- approved rubric aligned to the New York State Teaching Standards H1820and an overall score for each observation shall be generated between 1-4. E1517Multiple observations shall be combined using a weighted average pursuant to subparagraph (xiv) of this paragraph, producing an overall D1314observation category score between 1-4. In the event that a teacher earns I012a score of 1 on all rated components of the practice rubric across all observations, a score of 0 will be assigned. (2) Teacher observation category. The observation category for (xiii) Weighting of Subcomponents Within Teacher Observation teachers shall be based on at least two observations; one of which must be Category. The weighting of the subcomponents within the teacher observa- unannounced. tion category shall be established locally within the following constraints: (i) Two Mandatory subcomponents. (a) observations conducted by a principal or other trained (a) One observation shall be conducted by a principal or other administrator shall be weighted at a minimum of 80%. trained administrator; and (b) observations conducted by independent impartial observ- (b) a second observation shall be conducted by: either one or er(s), or other evaluators selected by the district if a hardship waiver is more impartial independent trained evaluator(s) selected and trained by granted, shall be weighted at a minimum of 10%. the district or in cases where a hardship waiver is granted by the Depart- (c) if a district selects to use the optional third observation ment pursuant to subclause (1) of this clause, a second observation shall subcomponent, then the weighting assigned to the optional observations be conducted by one or more evaluators selected and trained by the conducted by peers shall be established locally within the constraints district, who are different than the evaluator(s) who conducted the evalua- outlined in clause (1) and (2) of this subparagraph.

24 NYS Register/December 9, 2015 Rule Making Activities

(xiv) Overall Rating on the Teacher Observation Category. The poverty, students with disabilities, English language learners status and overall observation score calculated pursuant to paragraphs (xii) and prior academic history. For SLOs, these characteristics may be taken into (xiii) shall be converted into an overall rating, using cut scores determined account through the use of targets based on one year of “expected locally for each rating category; provided that such cut scores shall be growth”, as determined by the superintendent or his or her designee. consistent with the permissible ranges identified below: (4) The district shall measure student growth using the same measure(s) of student growth for all building principals within the same Overall Observation Category Score building configuration or program. and Rating (c) Weighting of Subcomponents Within Student Performance Category. (1) If a district does not locally select to use the optional second Min Max student growth subcomponent, then the mandatory subcomponent shall be H 3.5 to 3.75 4.0 weighted at 100%. E 2.5 to 2.75 3.49 to 3.74 (2) If the optional second student growth subcomponent is selected, then the mandatory subcomponent shall be weighted at a minimum of 50% D 1.5 to 1.75 2.49 to 2.74 and the optional second subcomponent shall be weighted at no more than I 0 1.49 to 1.74 50%. (3) Each measure used in the student performance category (State § 30-3.5 Standards and criteria for conducting annual professional provided growth score, SLOs, State-designed supplemental assessments) performance reviews of building principals under Education Law must result in a score between 0 and 20. The State will generate scores of § 3012-d. 0-20 for measures using a State-provided growth score. Districts shall (a) Ratings. Annual professional performance reviews conducted under calculate growth scores for SLOs in accordance with the minimum this section shall differentiate principal effectiveness resulting in a percentages prescribed in the table below; provided however that for principal being rated Highly Effective, Effective, Developing or Ineffec- principals of a building or program with small “n” sizes as defined by the tive based on multiple measures in the following two categories: the Commissioner in guidance, districts shall calculate scores for SLOs using student performance category and the school visit category. a methodology prescribed by the Commissioner in guidance. For all other (b) Student performance category. Such category shall have at least measures that are not State-provided growth measures, scores of 0-20 one mandatory first subcomponent and an optional second subcomponent shall be computed locally in accordance with the State provided or ap- as follows: proved growth model used. (1) Mandatory first subcomponent. (i) for a principal with at least 30% of his/her students covered under the State-provided growth measure, such principal shall have a SLOs State-provided growth score based on such model; and Percent of Students Meeting Scoring Range (ii) for a principal where less than 30% of his/her students are Target covered under the State-provided growth measure, such principal shall 0-4% 0 have a Student Learning Objective (SLO), on a form prescribed by the commissioner, consistent with the SLO process determined or developed 5-8% 1 by the commissioner, that results in a student growth score; provided that, 9-12% 2 for any principal whose building or program includes courses that end in 13-16% 3 a State-created or administered assessment for which there is no State- provided growth model, such assessment must be used as the underlying 17-20% 4 assessment for such SLO. The SLO process determined by the Commis- 21-24% 5 sioner shall include a minimum growth target of one year of expected growth, as determined by the superintendent or his or her designee. Such 25-28% 6 targets, as determined by the superintendent or his or her designee in the 29-33% 7 exercise of their pedagogical judgment, may take the following character- 34-38% 8 istics into account: poverty, students with disabilities, English language learners status and prior academic history. SLOs shall include the follow- 39-43% 9 ing elements, as defined by the Commissioner in guidance: 44-48% 10 (a) student population; 49-54% 11 (b) learning content; (c) interval of instructional time; 55-59% 12 (d) evidence; 60-66% 13 (e) baseline; (f) target; 67-74% 14 (g) criteria for rating a principal Highly Effective, Effective, 75-79% 15 Developing or Ineffective (“HEDI”); and 80-84% 16 (h) Rationale. (iii) for a principal of a building or program whose courses do not 85-89% 17 end in a State-created or administered test or where a State-provided 90-92% 18 growth score is not determined, districts shall use SLOs based on a list of 93-96% 19 State approved student assessments. (2) Optional second subcomponent. A district may locally select one 97-100% 20 or more other measures for the student performance category that shall be applied in a consistent manner, to the extent practicable, across the district (4) Overall Rating on Student Performance Category. Multiple based on either: measures shall be combined using a weighted average, to produce an (i) a second State-provided growth score on a State-created or overall student performance category score of 0 to 20. Based on such administered test; provided that a different measure is used than that for score, an overall student performance category rating shall be derived the required subcomponent in the student performance category, which from the table below: may include one or more of the following measures: (a) principal-specific growth computed by the State based on Overall Student Performance Category Score percentage of students who achieve a State-determined level of growth (e and Rating .g. percentage of students whose growth is above the median for similar Minimum Maximum students); (b) school-wide growth results using available State-provided H1820 growth scores that are locally-computed; or E1517 (ii) a growth score based on a State-designed supplemental assessment, calculated using a State-provided or approved growth model. Such D1314 growth score may include school or BOCES –wide group, team, or linked I012 measures where the state-approved growth model is capable of generating such a score. (d) Principal school visits category. The school visits category for (3) All State-provided or approved growth scores must control for principals shall be based on a State-approved rubric and shall include up

25 Rule Making Activities NYS Register/December 9, 2015 to three subcomponents; two of which are mandatory and one of which is Within Principal School Visit Category. The weighting of the subcompo- optional. nents within the principal school visit category shall be established locally (1) Two Mandatory subcomponents. A district shall evaluate a within the following constraints: principal based on at least: (i) school visits conducted by a superintendent or other trained (i) one school visit shall be based on a State-approved principal administrator shall be weighted at a minimum of 80%. practice rubric conducted by the building principal’s supervisor or other (ii) school visits conducted by independent impartial trained evalu- trained administrator; and ators or other evaluators selected by the district if a hardship waiver is (ii) a second school visit shall be conducted by: either one or more granted, shall be weighted at a minimum of 10%. impartial independent trained evaluator(s) selected and trained by the (iii) if a district selects to use the optional third school visit district or in cases where a hardship waiver is granted by the Department subcomponent, then the weighting assigned to the optional school visits pursuant to clause (a) of this subparagraph, a second school visit shall be conducted by peers shall be established locally within the constraints conducted by one or more evaluators selected and trained by the district, outlined in clause (i) and (ii) of this subparagraph. who are different than the evaluator(s) who conducted the evaluation pur- (14) Overall Rating on the Principal School Visits Category. The suant to subparagraph (i) of this paragraph. An independent trained overall principal school visit score shall be converted into an overall rat- evaluator may be employed within the district, but may not be assigned to ing, using cut scores determined locally for each rating category; provided the same school building as the principal being evaluated. that such cut scores shall be consistent with the permissible ranges identi- (a) A rural school district, as defined by the Commissioner in fied below: guidance, or a school district with only one registered school pursuant to (15) The overall principal/school visit score shall be converted into section 100.18 of the Commissioner’s regulations may apply to the an overall rating, using cut scores determined locally for each rating cat- Department for a hardship waiver on an annual basis, in a timeframe and egory; provided that such cut scores shall be consistent with the permis- manner prescribed by the Commissioner, if due to the size and limited re- sible ranges identified below: sources of the school district, it is unable to obtain an independent evaluator within a reasonable proximity without an undue burden to the school Overall Observation Category Score district. and Rating (2) Optional third subcomponent. The school visit category may also Min Max include a third optional subcomponent based on school visits conducted by a trained peer administrator rated Effective or Highly Effective on his H 3.5 to 3.75 4.0 or her overall rating in the prior school year from the same or another E 2.5 to 2.75 3.49 to 3.74 school in the district. D 1.5 to 1.75 2.49 to 2.74 (3) Frequency and Duration of School Visits. The frequency of school visits shall be established locally. I 0 1.49 to 1.74 (4) All school visits must be conducted using a principal practice rubric approved by the Commissioner pursuant to an RFQ process, unless § 30-3.6. Rating determination. the district has a currently approved variance from the Commissioner. (a) The overall rating determination for a teacher or principal shall be (i) Variance for existing rubric. A variance may be granted to a determined according to a methodology as follows: district that seeks to use a rubric that is either a close adaptation of a rubric on the approved list, or a rubric that was self-developed or Observation/School Visit developed by a third-party, upon a finding by the Commissioner that the Highly Effective Develop- Ineffec- rubric meets the criteria described in the RFQ, and the district has dem- Effective (E) ing (D) tive (I) onstrated that it has made a significant investment in the rubric and has a (H) history of use that would justify continuing the use of that rubric. (ii) Variance for use of new innovative rubrics. A variance may be Highly HHED granted to a district that seeks to use a newly developed rubric, upon a Effective finding by the Commissioner that the rubric meets the criteria described (H) in the RFQ and the district has demonstrated how it will ensure inter-rater Effective HEED reliability and the rubric's ability to provide differentiated results over Student (E) time. Performance (5) All school visits for a principal for the year must use the same ap- Develop- EEDI proved rubric; provided that districts may locally determine whether to ing (D) use different rubrics for a principal assigned to different grade level Ineffec- DD I I configurations or building types. tive (I) (6) At least one of the mandatory school visits must be unannounced. (7) School visits may not be conducted via video. (b) Notwithstanding subdivision (a) of this section, a teacher or (8) Nothing in this Subpart shall be construed to limit the discretion principal who is rated using both subcomponents in the student perfor- of a board of education, superintendent of schools, or other trained mance category and receives a rating of Ineffective in such category shall administrator from conducting school visits of a principal in addition to be rated Ineffective overall; provided, however, that if the measure used in those required under this section for non-evaluative purposes. the second subcomponent is a State-provided growth score on a state- (9) School visits may be based only on observable rubric created or administered test, a teacher or principal who receives a rating subcomponents. of Ineffective in the student performance category shall not be eligible to (10) The evaluator may select a limited number of observable rubric receive a rating of Effective or Highly Effective overall; subcomponents for focus on within a particular school visit, so long as all (c) The district shall ensure that the process by which weights and scor- observable ISLLC Standards are addressed across the total number of an- ing ranges are assigned to subcomponents and categories is transparent nual school visits. and available to those being rated before the beginning of each school (11) Leadership Standards and their related functions that are part of year. Such process must ensure that it is possible for a teacher or principal the rubric but not observable during the course of the school visit may be to obtain any number of points in the applicable scoring ranges, including observed through other natural conversations between the principal and zero, in each subcomponent. In the event that a teacher/principal earns a the evaluator and incorporated into the observation score. score of 1 on all rated components of the practice rubric across all (12) Points shall not be allocated based on any artifacts, unless such observations, a score of 0 will be assigned. The superintendent, district artifact constitutes evidence of a rubric subcomponent observed during a superintendent or chancellor and the representative of the collective school visit. Points shall not be allocated based on professional goal- bargaining unit (where one exists) shall certify in the district's plan that setting; however, organizational goal-setting may be used to the extent it the evaluation process shall use the weights and scoring ranges provided is evidence from the school visit and related to a component of the by the commissioner. principal practice rubric. § 30-3.7. Prohibited elements. Pursuant to Education Law § 3012-d(7), (13) Each school visit shall be evaluated on a 1-4 scale based on a the following elements shall no longer be eligible to be used in any evalu- state approved rubric aligned to the ISLLC standards and an overall score ation subcomponent pursuant to this Subpart: for each school visit shall be generated between 1-4. Multiple observa- (a) evidence of student development and performance derived from les- tions shall be combined using a weighted average, producing an overall son plans, other artifacts of teacher practice, and student portfolios, except observation category score between 1-4. In the event that a principal earns for student portfolios measured by a State-approved rubric where permit- a score of 1 on all rated components of the practice rubric across all ted by the department; observations, a score of 0 will be assigned. Weighting of Subcomponents (b) use of an instrument for parent or student feedback;

26 NYS Register/December 9, 2015 Rule Making Activities

(c) use of professional goal-setting as evidence of teacher or principal (1) the New York State Teaching Standards and their related ele- effectiveness; ments and performance indicators and the Leadership standards and their (d) any district or regionally-developed assessment that has not been related functions, as applicable; approved by the department; and (2) evidence-based observation techniques that are grounded in re- (e) any growth or achievement target that does not meet the minimum search; standards as set forth in regulations of the commissioner adopted (3) application and use of the student growth percentile model and hereunder. any other growth model approved by the Department as defined in section § 30-3.8. Approval process for student assessments. 30-3.2 of this Subpart; (a) Approval of student assessments for the evaluation of classroom (4) application and use of the State-approved teacher or principal teachers and building principals. An assessment provider who seeks to rubric(s) selected by the district for use in evaluations, including training place an assessment on the list of approved student assessments under this on the effective application of such rubrics to observe a teacher or section shall submit to the Commissioner a written application in a form principal's practice; and within the time prescribed by the Commissioner. (5) application and use of any assessment tools that the district (b) The commissioner shall evaluate a student assessment(s) for inclu- utilizes to evaluate its classroom teachers or building principals; sion on the Department's list(s) of approved student assessments for use (6) application and use of any locally selected measures of student in the required and/or optional subcomponents of the student performance growth used in the optional subcomponent of the student performance cat- category, based on the criteria outlined in the RFQ or request for propos- egory used by the district to evaluate its teachers or principals; als (“RFP”). (7) use of the statewide instructional reporting system; (c) Termination of approval. Approval shall be withdrawn for good (8) the scoring methodology utilized by the department and/or the cause, including, but not limited to, a determination by the commissioner district to evaluate a teacher or principal under this Subpart, including that: the weightings of each subcomponent within a category; how overall (1) the assessment does not comply with one or more of the criteria scores/ratings are generated for each subcomponent and category and for approval set forth in Subpart or in the RFQ or RFP; application and use of the evaluation matrix(es) prescribed by the com- (2) the Department determines that the assessment is not identifying missioner for the four designated rating categories used for the teacher's meaningful and/or observable differences in performance levels across or principal's overall rating and their category ratings; and schools and classrooms; and/or (9) specific considerations in evaluating teachers and principals of (3) high quality academic research calls into question the correlation English language learners and students with disabilities. between high performance on the assessment and positive student learn- (c) Independent evaluators and peer evaluators shall receive training ing outcomes. on the following elements: § 30-3.9. Approval process for approved teacher and principal practice (1) the New York State Teaching Standards and their related ele- rubrics. ments and performance indicators and the Leadership standards and their (a) A provider who seeks to place a teacher or principal practice rubric related functions, as applicable; on the list of approved rubrics under this section shall submit to the com- (2) evidence-based observation techniques that are grounded in missioner a written application in a form and within the time prescribed research; and by the commissioner. (3) application and use of the State-approved teacher or principal (b) Teacher practice rubric. The commissioner shall evaluate a rubric rubric(s) selected by the district for use in evaluations, including training for inclusion on the department's list of approved practice rubrics for on the effective application of such rubrics to observe a teacher or classroom teachers pursuant to a request for qualification (‘‘RFQ’’) principal's practice; process. Such proposals shall meet the criteria outlined by the commis- (d) Training shall be designed to certify lead evaluators. Districts shall sioner in the RFQ process. describe in their annual professional performance review plan the dura- (c) Principal practice rubric. The commissioner shall evaluate a rubric tion and nature of the training they provide to evaluators and lead evalua- for inclusion on the department's list of approved practice rubrics for tors and their process for certifying lead evaluators under this section. building principals pursuant to a request for qualification (‘‘RFQ’’) (e) Districts shall also describe in their annual professional perfor- process. Such proposals shall meet the criteria outlined by the commis- mance review plan their process for ensuring that all evaluators maintain sioner in the RFQ process. inter-rater reliability over time (such as data analysis to detect disparities (d) Termination of approval of a teacher or principal scoring rubric. on the part of one or more evaluators; periodic comparisons of a lead Approval for inclusion on the department's list of approved rubrics may evaluator's assessment with another evaluator's assessment of the same be withdrawn for good cause, including, but not limited to, a determina- classroom teacher or building principal; annual calibration sessions tion by the commissioner that the rubric: across evaluators) and their process for periodically recertifying all (1) does not comply with one or more of the criteria for approval set evaluators. forth in this section or the criteria set forth in the request for qualification; (f) Any individual who fails to receive required training or achieve cer- (2) the department determines that the practice rubric is not identify- tification or re-certification, as applicable, by a district pursuant to the ing meaningful and/or observable differences in performance levels across requirements of this section shall not conduct or complete an evaluation schools and classrooms; and/or under this Subpart. (3) high-quality academic research calls into question the correla- § 30-3.11. Teacher or principal improvement plans. tion between high performance on this rubric and positive student learn- (a) Upon rating a teacher or a principal as Developing or Ineffective ing outcomes. through an annual professional performance review conducted pursuant (e) The Department’s lists of approved rubrics established pursuant to to Education Law section 3012-d and this Subpart, a district shall section 30-2.7 of the Part shall continue in effect until superseded by a list formulate and commence implementation of a teacher or principal generated from a new RFQ issued pursuant to this section or the list is improvement plan for such teacher or principal by October 1 in the school abolished by the commissioner as unnecessary. year following the school year for which such teacher’s or principal’s § 30-3.10. Training of evaluators and lead evaluators. performance is being measured or as soon as practicable thereafter. (a) The governing body of each district shall ensure that evaluators, (b) Such improvement plan shall be developed by the superintendent or including impartial and independent observers and peer observers, have his or her designee in the exercise of their pedagogical judgment and shall appropriate training before conducting a teacher or principal’s evalua- include, but need not be limited to, identification of needed areas of tion under this section. The governing body shall also ensure that any lead improvement, a timeline for achieving improvement, the manner in which evaluator has been certified by such governing body as a qualified lead the improvement will be assessed, and, where appropriate, differentiated evaluator before conducting and/or completing a teacher's or principal's activities to support a teacher's or principal's improvement in those areas. evaluation in accordance with the requirements of this Subpart, except as § 30-3.12. Appeal procedures. otherwise provided in this subdivision. Nothing herein shall be construed (a) An annual professional performance review plan under this Subpart to prohibit a lead evaluator who is properly certified by the Department shall describe the appeals procedure utilized by a district through which as a school administrator or superintendent of schools from conducting an evaluated teacher or principal may challenge their annual professional classroom observations or school visits as part of an annual professional performance review. Pursuant to Education Law § 3012-d, a teacher or performance review under this Subpart prior to completion of the training principal may only challenge the following in an appeal: required by this section provided such training is successfully completed (1) the substance of the annual professional performance review; prior to completion of the evaluation. which shall include the following: (b) To qualify for certification as a lead evaluator, individuals shall (i) in the instance of a teacher or principal rated Ineffective on the successfully complete a training course that meets the minimum require- student performance category but rated Highly Effective on the ments prescribed in this subdivision. The training course shall provide observation/school visit category based on an anomaly, as determined training on: locally.

27 Rule Making Activities NYS Register/December 9, 2015

(2) the district's adherence to the standards and methodologies (b) the provisions of paragraphs (k-1), (k-2) and (l) of subdivision (2) of required for such reviews, pursuant to Education Law § 3012-d and this Education Law § 3012-c shall apply without any modification; Subpart; (c) the provisions of subdivision (5-a) of Education Law § 3012-c shall (3) the adherence to the regulations of the commissioner and compli- apply without modification except: ance with any applicable locally negotiated procedures, as required under (1) Any reference in subdivision (5-a) to a proceeding pursuant to Education Law § 3012-d and this Subpart; and Education Law § 3020-a based on a pattern of ineffective teaching shall (4) district's issuance and/or implementation of the terms of the be deemed to be a reference to a proceeding pursuant to Education Law teacher or principal improvement plan under Education Law § 3012-d § 3020-b against a teacher or principal who receives two or more consec- and this Subpart. utive composite Ineffective ratings; and in accordance with Education (b) Appeal procedures shall provide for the timely and expeditious res- Law § 3020(3) and (4)(a), notwithstanding any inconsistent language in olution of any appeal. subdivision (5-a), any alternate disciplinary procedures contained in a (c) An evaluation that is the subject of an appeal shall not be sought to collective bargaining agreement that becomes effective on or after July 1, be offered in evidence or placed in evidence in any proceeding conducted 2015 shall provide that two consecutive Ineffective ratings pursuant to an- pursuant to Education Law §§ 3020-a and 3020-b or any locally negoti- nual professional performance reviews conducted in accordance with the ated alternate disciplinary procedure until the appeal process is provisions of Education Law § 3012-c or 3012-d shall constitute prima concluded. facie evidence of incompetence that can only be overcome by clear and convincing evidence that the employee is not incompetent in light of all (d) Nothing in this section shall be construed to alter or diminish the surrounding circumstances, and if not successfully overcome, the finding, authority of the governing body of a district to grant or deny tenure to or absent extraordinary circumstances, shall be just cause for removal, and terminate probationary teachers or probationary building principals dur- that three consecutive Ineffective ratings pursuant to annual professional ing the pendency of an appeal pursuant to this section for statutorily and performance reviews conducted in accordance with the provisions of constitutionally permissible reasons, including the teacher’s or principal’s Education Law § 3012-c or 3012-d shall constitute prima facie evidence performance that is the subject of the appeal. of incompetence that can only be overcome by clear and convincing evi- (e) Nothing in this Subpart shall be construed to authorize a teacher or dence that the calculation of one or more of the teacher’s or principal's principal to commence the appeal process prior to receipt of his or her underlying components on the annual professional performance reviews rating from the district. pursuant to Education Law § 3012-c or 3012-d was fraudulent, and if not § 30-3.13. Monitoring and consequences for non-compliance. successfully overcome, the finding, absent extraordinary circumstances, (a) The department will annually monitor and analyze trends and pat- shall be just cause for removal. terns in teacher and principal evaluation results and data to identify (d) the provisions of subdivision (10) of Education Law § 3012-c shall districts and/or schools where evidence suggests that a more rigorous apply without modification, except that there is no composite effectiveness evaluation system is needed to improve educator effectiveness and student score under Education Law § 3012-d. learning outcomes. The department will analyze data submitted pursuant § 30-3.16. Challenges to State-Provided Growth Scores. to this Subpart to identify: (a) A teacher/principal shall have the right to challenge their State- (1) schools or districts with unacceptably low correlation results be- provided growth score under this Subpart; provided that the teacher/ tween student growth on the student performance category and the teacher principal provides sufficient documentation that he/she meets at least one observation/principal school visit category used by the district to evaluate of the following criteria in their annual evaluation: its teachers and principals; and/or (1) a teacher/principal was rated Ineffective on his/her State- (2) schools or districts whose teacher and principal overall ratings provided growth score and Highly Effective on the Observation/School and subcomponent scores and/or ratings show little differentiation across Visit category in the current year and was rated either Effective or Highly educators and/or the lack of differentiation is not justified by equivalently Effective on his/her State-provided growth score in the previous year; or consistent student achievement results; and/or schools or districts that (2) a high school principal of a building that includes at least all of show a pattern of anomalous results in the student performance and grades 9-12, was rated Ineffective on the State-provided growth score but observation/school visits categories. such percent of students as shall be established by the Commissioner in (b) A district identified by the department in one of the categories his/her school/program within four years of first entry into grade 9 enumerated above may be highlighted in public reports and/or the com- received results on department-approved alternative examinations in En- missioner may order a corrective action plan, which may include, but not glish Language Arts and/or or mathematics as described in section be limited to, a timeframe for the district to address any deficiencies or the 100.2(f) of this Title (including, but not limited to, advanced placement plan will be rejected by the Commissioner, changes to the district’s target examinations, and/or International Baccalaureate examinations, SAT II, setting process, a requirement that the district arrange for additional etc.) scored at proficiency (i.e., a Level 3 or higher). professional development, that the district provide additional in-service (b) A teacher/principal shall submit an appeal to the Department, in a training and/or utilize independent trained evaluators to review the ef- manner prescribed by the Commissioner, within 20 days of receipt of his/ ficacy of the evaluation system. her overall annual professional performance review rating or the effective (c) Corrective action plans may require changes to a collective bargain- date of this section, whichever is later, and submit a copy of the appeal to ing agreement. the school district and/or BOCES. The school district and/or BOCES shall § 30-3.14. Prohibition against Student Being Instructed by Two Con- have ten days from receipt of a copy of such appeal to submit a reply to secutive Ineffective Teachers. the Department. (a) A student may not be instructed, for two consecutive school years, in (c) Based on the documentation received, if the Department overturns a the same subject by any two teachers in the same district, each of whom teacher’s/principal’s rating on the State-provided growth score, the received a rating of Ineffective under an evaluation conducted pursuant to district/BOCES shall substitute the teacher’s/principal’s results on the this section in the school year immediately prior to the school year in back-up SLO developed by the district/BOCES for such teacher/principal. which the student is placed in the teacher's classroom; provided, that if a If a back-up SLO was not developed, then the teacher’s/principal’s over- district deems it impracticable to comply with this subdivision, the district all composite score and rating shall be based on the portions of their an- shall seek a teacher-specific waiver from the department from such nual professional performance review not affected by the nullification of requirement, on a form and timeframe prescribed the commissioner. the State-provided growth score. Provided, however, that following a suc- (b) If a district assigns a student to a teacher rated Ineffective in the cessful appeal under paragraph (1) of subdivision (a) of this section, if a same subject for two consecutive years, the district must seek a waiver back-up SLO is used a teacher/principal shall not receive a score/rating from this requirement for the specific teacher in question. The commis- higher than developing on such SLO. sioner may grant a waiver from this requirement if: (d) An evaluation that is the subject of an appeal shall not be sought to (1) the district cannot make alternative arrangements and/or reas- be offered in evidence or placed in evidence in any proceeding conducted sign a teacher to another grade/subject because a hardship exists (for pursuant to Education Law sections 3020-a and 3020-b or any locally example, too few teachers with higher ratings are qualified to teach such negotiated alternate disciplinary procedure until the appeal process is subject in that district); and concluded. (2) the district has an improvement and/or removal plan in place for (e) Nothing in this section shall be construed to alter or diminish the the teacher at issue that meets certain guidelines prescribed by the authority of the governing body of a district to grant or deny tenure to or commissioner. terminate probationary teachers or probationary building principals dur- § 30-3.15. Applicability of the provisions in Education Law § 3012-c. ing the pendency of an appeal pursuant to this section for statutorily and The provisions of Education Law § 3012-c shall apply to annual profes- constitutionally permissible reasons, including the teacher’s/principal’s sional performance reviews pursuant to this Subpart as follows: performance that is the subject of the appeal. (a) the provisions of paragraphs (d) and (k) of subdivision (2) , subdivi- (f) Nothing in this Subpart shall be construed to authorize a teacher/ sion (4), subdivision (5) and subdivision (9) of Education Law § 3012-c principal to commence the appeal process prior to receipt of his/her over- that apply are set forth in the applicable language of this Subpart; all rating from the district/BOCES.

28 NYS Register/December 9, 2015 Rule Making Activities

(g) During the pendency of an appeal under this section, nothing shall the Regents and Commissioner to ensure effective evaluation of classroom be construed to alter the obligation of a school district/BOCES to develop teachers and building principals. and implement a teacher improvement plan or principal improvement 3. NEEDS AND BENEFITS: plan during the pendency of an appeal. On April 13, 2015, the Governor signed Chapter 56 of the Laws of (h) Nothing in this section shall be construed to limit any rights of a 2015 to add a new Education Law § 3012-d, to establish a new evaluation teacher/principal under section 30-2.11 of this Subpart. system for classroom teachers and building principals. (i) Notwithstanding any other provision of rule or regulation to the con- The new law requires the Commissioner to adopt regulations necessary trary, a high school principal of a building that includes at least all of to implement the evaluation system by June 30, 2015, after consulting grades 9-12 who meets either of the criteria in paragraphs (1) or (2) of with experts and practitioners in the fields of education, economics and this subdivision shall not receive a State-provided growth score and shall psychometrics. It also required the Department to establish a process to instead use back-up SLOs: accept public comments and recommendations regarding the adoption of (1) the principal would be rated Ineffective or Developing on the regulations pursuant to the new law and consult in writing with the Secre- State-provided growth score but the graduation rate of the students in that tary of the United States Department of Education on weights, measures school building exceeded 90%, and the proportion of the student popula- and ranking of evaluation categories and subcomponents. It further tion included in either the ELA Regents Median Growth Percentile or the required the release of the response from the Secretary upon receipt Algebra Regents Median Growth Percentile was less than ten percent of thereof, but in any event, prior to the publication of the regulations. the total enrollment for the school; or the principal By letter dated April 28, 2015, the Department sought guidance from (2) has no Combined Median Growth Percentile rating or score, and the Secretary of the United States Department of Education on the weights, the proportion of the student population included in the ELA Regents measures and ranking of evaluation, as required under the new law and the Median Growth Percentile and Algebra Regents Median Growth Percen- Secretary responded. tile was less than five percent of the total enrollment for the school in one In accordance with the requirements of the statute, the Department cre- subject, and less than ten percent of the total enrollment in the other ated an email box to accept comments on the new evaluation system subject. ([email protected]). The Department has received and reviewed over (3) If a back-up SLO was not developed, then the principal’s overall 4,000 responses and has taken these comments into consideration in composite score and rating shall be based on the remaining portions of formulating the proposed amendments. In addition, the Board of Regents their annual professional performance review. convened on May 7, 2015 to hold a Learning Summit, wherein the Board of Regents hosted a series of panels to provide recommendations to the This notice is intended to serve only as a notice of emergency adoption. Board on the new evaluation system. Such panels included experts in This agency intends to adopt the provisions of this emergency rule as a education, economics, and psychometrics and State-wide stakeholder permanent rule, having previously submitted to the Department of State a groups including but not limited to NYSUT, UFT, School Boards, notice of proposed rule making, I.D. No. EDU-27-15-00019-P, Issue of NYSCOSS and principal and parent organizations. A video recording and July 8, 2015. The emergency rule will expire January 22, 2016. the submitted materials for the Learning Summit are available on the Text of rule and any required statements and analyses may be obtained Department’s website at http://www.nysed.gov/learning-summit. The from: Kirti Goswami, State Education Department, Office of Counsel, national experts and the representatives of stakeholder groups who pre- State Education Building, Room 148, 89 Washington Ave., Albany, NY sented at the Learning Summit are listed at http://www.nysed.gov/content/ 12234, (518) 474-6400, email: [email protected] learning-summit-presenter-biographies. The materials submitted by the Regulatory Impact Statement national experts and stakeholder groups are listed at http:// 1. STATUTORY AUTHORITY: www.nysed.gov/content/learning-summit-submitted-materials. Education Law 101 charges the Department with the general manage- The proposed amendment reflects areas of consensus among the groups, ment and supervision of the educational work of the State and establishes and in areas where there were varying recommendations, the Department the Regents as head of the Department. attempted to reconcile those differences to reflect best practices while also Education Law 207 grants general rule-making authority to the Regents taking into consideration recommendations in the Testing Reduction to carry into effect State educational laws and policies. Report regarding the reduction of unnecessary testing. The Department Education Law 215 authorizes the Commissioner to require reports distilled the various recommendations received at the Learning Summit from schools under State educational supervision. into a powerpoint presentation presented to the Board of Regents at their Education Law 305(1) authorizes the Commissioner to enforce laws re- May 20, 2015 meeting, which is posted at http://www.regents.nysed.gov/ lating to the State educational system and execute Regents educational common/regents/files/meetings/May%202015/APPR.pdf. policies. Section 305(2) provides the Commissioner with general supervi- Based on the statutory language in Education Law § 3012-d and Subpart sion over schools and authority to advise and guide school district officers C of the Chapter 20 of the Laws of 2015, the State-provided growth model in their duties and the general management of their schools. used under Education Law § 3012-c has been continued under the new Education Law 3012-c establishes requirements for the conduct of an- regulations promulgated under Education Law § 3012-d. The growth nual professional performance reviews (APPR) of classroom teachers and model used under Education Law § 3012-c was based on recommenda- building principals employed by school districts and boards of cooperative tions from the Regents Task Force on Teacher and Leader Effectiveness, educational services (BOCES). which can be found at http://www.regents.nysed.gov/common/regents/ Education Law 3012-d, as added by Section 2 of Subpart E of Part EE files/documents/meetings/2011Meetings/April2011/ of Chapter 56 of the Laws of 2015 establishes a new evaluation system for RegentsTaskforceonTeacherandPrincipalEffectiveness.pdf and the recom- classroom teachers and building principals employed by school districts mendations of the Metrics Workgroup of the Task Force and a Technical and BOCES for the 2015-16 school year and thereafter. Advisory Committee, comprised of psychometric experts in the field. Ad- Section 1 of Subpart E of Part EE of Chapter 56 of the Laws of 2015 ditional research supporting evaluations, including the use of a growth requires the Commissioner of Education to adopt regulations of the Com- model, can be found on our website at https://www.engageny.org/ missioner no later than June 30, 2015, to implement a statewide annual resource/research-supporting-all-components-of-teacherprincipal- teacher and principal evaluation system in New York state pursuant to evaluation. A variety of other research materials/analyses regarding the Education Law § 3012-d, after consulting with experts and practitioners in growth model can be found on the Department’s website at http:// the fields of education, economics and psychometrics and with the Secre- www.engageny.org/resource/resources-about-state-growth-measures. tary of the United States Department of Education on weights, measures Proposed amendment and ranking of evaluation categories and subcomponents. Section 3 of The proposed rule conforms the regulations to the provisions of the Subpart C of Chapter 20 of the Laws of 2015 amends Education Law 2015 legislation by making the following major changes to Subpart 30-2 § 3012-d to require the State-provided growth score to be based on such of the Rules of the Board of Regents. model, which shall take into consideration certain student characteristics, The title of section 30-2 and section 30-2.1 are amended to clarify that as determined by the commissioner, including but not limited to students Subpart 30-2 only applies to APPRs conducted prior to the 2015-2016 with disabilities, poverty, English language learner status and prior aca- school year or APPRs conducted pursuant to a CBA entered into on or demic history and which shall identify educators whose students' growth before April 1, 2015 that remains in effect on or after April 1, 2015 until a is well above or well below average compared to similar students for a subsequent agreement is reached. teacher's or principal's students after the certain student characteristics Section 30-2.1(d) is amended to clarify that a school district or BOCES above are taken into account. has an unfettered statutory right to terminate a probationary teacher or 2. LEGISLATIVE OBJECTIVES: principal for any statutorily and constitutionally permissible reason, The proposed rule is consistent with the above authority vested in the including but not limited to misconduct, and until a tenure decision is Regents and Commissioner to carry into effect State educational laws and made, the performance of a teacher or principal in the classroom or school. policies and Ch. 56, L. 2015, as amended by Ch. 20, L. 2015, and is neces- Section 30-2.11 also clarifies that a school district or BOCES may sary to support the commitment made by the Legislature, the Governor, terminate a probationary teacher or principal during an appeal for any

29 Rule Making Activities NYS Register/December 9, 2015 statutorily and constitutionally permissible reason, including a teacher’s amendment; provided however that for teachers with courses with small or principal’s performance. “n” sizes as defined by the Commissioner in guidance, districts shall A new Subpart 30-3 is added to implement the new evaluation system. calculate scores for SLOs using a methodology specified by the Commis- Section 30-3.1 clarifies that the new evaluation system only applies to sioner in guidance. For all other measures that are not State-provided CBA’s entered into after April 1, 2015 unless the agreement relates to the growth measures, scores of 0-20 shall be computed locally in accordance 2014-2015 school year only. The section further clarifies that nothing in with the State provided or approved growth model used. the new Subpart shall be construed to abrogate any conflicting provisions Teacher observation category of any CBA in effect on effect on or after April 1, 2015 during the term of The second subcomponent shall be comprised of three subcomponents; such agreement and until entry into a successor CBA agreement. The sec- two mandatory and one optional. The two mandatory subcomponents shall tion further clarifies that APPRs shall be a significant factor for employ- be based on: ment decisions and teacher and principal development, consistent with the D one observation that shall be conducted by a principal or other trained prior law. The section also clarifies the unfettered right to terminate a administrator; and probationary teacher or principal for any statutorily and constitutionally D a second observation that shall be conducted by one or more impartial permissible reason. This section also provides that the Board will convene independent trained evaluator(s) selected and trained by the district. An workgroup(s) comprised of stakeholders and experts in the field to provide independent trained evaluator may be employed within the district, but recommendations to the Board on assessments and evaluations that could may not be assigned to the same school building as the teacher being be used for APPRs in the future. evaluated. Section 30-3.2 defines several terms used in the Subpart. One of the mandatory observations must be unannounced. The third Section 30-3.3 prescribes the requirements for APPR plans submitted optional subcomponent may include: under the new Subpart. D classroom observations conducted by a trained peer teacher rated Ef- New Teacher Evaluation Requirements fective or Highly Effective on his or her overall rating in the prior school Section 30-3.4 describes the standards and criteria for conducting AP- year from the same school or from another school in the district. PRs of classroom teachers under the new law. The new law requires teach- The law also requires the Commissioner to establish the frequency and ers to be evaluated based on two categories: the student performance cate- duration of observations in regulations. The proposed amendment allows gory and the teacher observation category. the frequency and duration of observations to be established locally. Student performance category This section also requires all observations to be conducted using a The first category has two subcomponents, one mandatory and the other teacher practice rubric approved by the commissioner pursuant to a optional. For the first mandatory component, teachers shall be evaluated Request for Qualification (“RFQ”) process, unless the district has an ap- as follows: proved variance from the Commissioner and prescribes parameters for the D For teachers whose courses end in a State created or administered test observations category. for which there is a State-provided growth model and at least 50% of a The law further requires the Commissioner to establish weightings and teacher’s students are covered under the State-provided growth measure, scoring ranges for the subcomponents of the teacher observations such teachers shall have a State-provided growth score based on such category. The proposed amendment provides that the weighting of the model. subcomponents within the teacher observation category shall be estab- D For a teachers whose course does not end in a State created or lished locally within the following constraints: administered test or where less than 50% of the teacher’s students are D observations conducted by a principal or other trained administrator covered under the State-provided growth measure, such teachers shall shall be weighted at a minimum of 80%. have a Student Learning Objective (“SLO”) consistent with a goal setting D observations conducted by independent impartial observers shall be process determined or developed by the Commissioner that results in a weighted at a minimum of 10%. student growth score; provided that for any teacher whose course ends in a D if a district selects to use the optional third observation subcomponent, State created or administered assessment for which there is no State- then the weighting assigned to the optional observations conducted by provided growth model, such assessment must be used as the underlying peers shall be established locally within the constraints outlined above. assessment for such SLO. The overall observation score shall be converted into an overall rating The second optional subcomponent shall be comprised of the one or pursuant to the ranges identified in the proposed amendment. more the following options, as determined locally: New Principal Evaluation Requirements A second State-provided growth score on a State-created or adminis- Section 30-3.5 describes the standards and criteria for conducting AP- tered test; provided that the State provided growth measure is different PRs of building principals under the new law. The new law requires the than that used in the required subcomponent of the student performance Commissioner to establish a principal evaluation system that is aligned to category, which may include one or more of the following measures: the new teacher evaluation system set forth in Education Law § 3012-d. a teacher-specific growth score computed by the State based on per- To implement the new law, the proposed amendment requires building centage of students who achieve a State-determined level of growth (e .g., principals to be evaluated based on two categories: the student perfor- percentage of students whose growth is above the median for similar mance category and the school visit category. students); The first category has two subcomponents, one mandatory and the other school-wide growth results based on a State-provided school-wide optional. For the first mandatory component, teachers shall be evaluated growth score for all students attributable to the school who took the State as follows: English language arts or math assessment in grades 4-8; or For principals with at least 30% of their students covered under a State- school-wide, group, team, or linked growth results using available provided growth measure, such principal shall have a State-provided State-provided growth scores that are locally-computed; growth score based on such model; except for if: (1) the principal would D A growth score based on a state designed supplemental assessment be rated Ineffective or Developing on the State-provided growth score but calculated using a State provided or approved growth model. the graduation rate of the students in that school building exceeded 90%, The law requires the Commissioner to establish weightings and scoring and the proportion of the student population included in either the ELA ranges for the subcomponents of the student performance category. The Regents Median Growth Percentile or the Algebra Regents Median proposed amendment applies the following weights to each of the Growth Percentile was less than ten percent of the total enrollment for the subcomponents: school; or the principal D If a district does not locally select to use the optional second student (2) has no Combined Median Growth Percentile rating or score, and the growth subcomponent, then the mandatory subcomponent shall be proportion of the student population included in the ELA Regents Median weighted at 100%. Growth Percentile and Algebra Regents Median Growth Percentile was D If the optional second student growth subcomponent is selected, then less than five percent of the total enrollment for the school in one subject, the mandatory subcomponent shall be weighted at a minimum of 80% and and less than ten percent of the total enrollment in the other subject. the optional second subcomponent shall be weighted at no more than 20%; D For principals where less than 30% of their students are covered under provided, however, that if the optional second subcomponent does not a State-provided growth measure, such principals shall have a SLO con- include traditional standardized tests, the weightings shall be established sistent with a goal setting process determined or developed by the Com- locally, provided that the mandatory student growth subcomponent shall missioner that results in a student growth score; provided that for any be weighted at a minimum of 50% and the optional student growth teacher whose course ends in a State created or administered assessment subcomponent shall be weighted no more than 50%. for which there is no State-provided growth model, such assessment must Each measure used in the student performance category (State provided be used as the underlying assessment for such SLO. growth score, SLOs, State-designed supplemental assessments) must If the district opts to use the second optional subcomponent, it shall be result in a score between 0 and 20. The State will generate scores of 0-20 comprised of one or more of the following measures: for measures using a State-provided growth score. Districts shall calculate D A second State-provided growth score on a State-created or adminis- scores for SLOs in accordance with the table provided in the proposed tered test; provided that the State provided growth measure is different

30 NYS Register/December 9, 2015 Rule Making Activities than that used in the required subcomponent of the student performance category, which may include one or more of the following measures: Observation/School Visit a principal-specific growth score computed by the State based on per- Highly Effective Develop- Ineffec- centage of students who achieve a State-determined level of growth (e .g., Effective (E) ing (D) tive (I) percentage of students whose growth is above the median for similar (H) students); and/or school-wide, group, team, or linked growth results using available Highly HHED State-provided growth scores that are locally-computed. Effective (H) D A growth score based on a state designed supplemental assessment calculated using a State provided or approved growth model. Effective HEED The law requires the Commissioner to establish weightings and scoring Student (E) Performance ranges for the subcomponents of the student performance category. The Develop- EEDI proposed amendment applies the following weights to each of the ing (D) subcomponents: D If a district does not locally select to use the optional second student Ineffec- D* D* I I growth subcomponent, then the mandatory subcomponent shall be tive (I) weighted at 100%. *If a teacher is rated ineffective on the student performance category D If the optional second student growth subcomponent is selected, then and a State-designed supplemental assessment was included as an optional the mandatory subcomponent shall be weighted at a minimum of 80% and subcomponent of the student performance category, the teacher can be the optional second subcomponent shall be weighted at no more than 20%; rated no higher than ineffective overall pursuant to Education Law §§ 5(a) provided, however, that if the optional second subcomponent does not and 7. include traditional standardized tests, the weightings shall be established This section also provides that it must be possible to obtain each point locally, provided that the mandatory student growth subcomponent shall in the scoring ranges, including 0, for each subcomponent and category. It be weighted at a minimum of 50% and the optional student growth further requires that the superintendent, district superintendent or Chancel- subcomponent shall be weighted no more than 50%. lor and the president of the collective bargaining representative, where Each measure used in the student performance category (State provided one exists, must certify in the APPR plan that the evaluation system will growth score, SLOs, State-designed supplemental assessments) must use the weights and scoring ranges provided by the Commissioner and result in a score between 0 and 20. The State will generate scores of 0-20 that the process by which weights and scorings are assigned to subcompo- for measures using a State-provided growth score. Districts shall calculate nents and categories is transparent and available to those being rated before scores for SLOs in accordance with the table provided in the proposed the beginning of each school year. amendment; provided however that for teachers with courses with small Section 30-3.7 lists the prohibited elements set forth in Education Law “n” sizes as defined by the Commissioner in guidance, districts shall § 3012-d, which precludes districts/BOCES from using the following as calculate scores for SLOs using a methodology specified by the Commis- part of a teacher’s and/or principal’s evaluation: sioner in guidance. For all other measures that are not State-provided D evidence of student development and performance derived from les- growth measures, scores of 0-20 shall be computed locally in accordance son plans, other artifacts of teacher practice, and student portfolios, except with the State provided or approved growth model used. for student portfolios measured by a State-approved rubric where permit- Principal school visit category ted by the department; The principal school visit category shall be comprised of three subcom- D use of an instrument for parent or student feedback; ponents; two mandatory and one optional. The two mandatory subcompo- D use of professional goal-setting as evidence of teacher or principal ef- nents shall be based on: fectiveness; D one observation shall be conducted by the principal’s supervisor or D any district or regionally-developed assessment that has not been ap- other trained administrator; and proved by the department; and D a second observation shall be conducted by one or more impartial in- D any growth or achievement target that does not meet the minimum dependent trained evaluator(s) selected and trained by the district. An in- standards as set forth in regulations of the commissioner adopted dependent trained evaluator may be employed within the district, but may hereunder. not be assigned to the same school building as the principal being Sections 30-3.8 and 30-3.9 set forth the approval processes for student evaluated. assessments and teacher and principal practice rubrics. One of the mandatory school visits by the principal’s supervisor must Section 30-3.10 sets forth the training requirements for evaluators and be unannounced. lead evaluators; which now requires evaluators and lead evaluations to be The third optional subcomponent may include: trained on certain prescribed elements relating to observations and the ap- D School visits conducted by a trained peer administrator rated Effec- plicable teacher/principal practice rubrics pursuant to Education Law tive or Highly Effective on his or her overall rating in the prior school year § 3012-d(15). from the same school or from another school in the district. Section 30-3.11 addresses teacher and principal improvement plans, The law also requires the Commissioner to establish the frequency and which now allows the superintendent in the exercise of his or her duration of school visits in regulations. The proposed amendment requires pedagogical judgment to develop and implement the improvement plans the frequency and duration of observations to be set locally. pursuant to Education Law § 3012-d(15). The section also requires all observations to be conducted using a Section 30-3.12 addresses local appeal procedures. Currently, the principal practice rubric approved by the commissioner pursuant to a regulations set forth the grounds for an appeal which includes the ability Request for Qualification (“RFQ”) process, unless the district has an ap- of a teacher or principal to challenge the substance of their APPR in an proved variance from the Commissioner. appeal. The proposed amendment defines the substance of an APPR to This section further prescribes parameters for the school visits category. include appeals in circumstances where a teacher or principal is rated Inef- The law requires the Commissioner to establish weightings and scoring fective on the student performance category, but rated Highly Effective on ranges for the subcomponents of the school visits category. The proposed the observation/school visit category based on an anomaly, as determined amendment provides that the weighting of the subcomponents within the locally pursuant to Education Law § 3012-d(15). principal school visits category shall be established locally within the fol- Section 30-3.13, which addresses monitoring and consequences for lowing constraints: non-compliance, which now allows the Department to require changes to D School visits conducted by the principal’s supervisor or other trained a CBA pursuant to Education Law § 3012-d(15). administrator shall be weighted at a minimum of 80%. Section 30-3.14 codifies the statutory requirement that no student be as- D School visits conducted by independent impartial trained evaluators signed to two teachers in the same subject in two consecutive school years, shall be weighted at a minimum of 10%. each of whom received a rating of Ineffective pursuant to an evaluation D If a district selects to use the optional third observation subcomponent, conducted pursuant to Education Law § 3012-d in the school year im- then the weighting assigned to the optional school visits conducted by mediately prior to the year in which the student is placed in the teacher’s peers shall be established locally within the constraints outlined above. classroom. The proposed amendment provides for a teacher-specific The overall school visit category score shall be converted into an over- waiver from the Department from such requirement where it is impracti- all rating pursuant to the ranges identified in the proposed amendment. cable to comply with this requirement. Section 30-3.6 describes how the overall rating is computed, based on Section 30-3.15 describes the extent to which provisions of Education the evaluation matrix established by the new law, which combines the Law § 3012-c(2)(d), (k), (k-1), (k-2) and (l), (4), (5), (5-a), (9) and (10) are teacher’s or principal’s ratings on the student performance category and carried over into the new evaluation system, as required by Education the observation/school visit category: Law § 3012-d(15).

31 Rule Making Activities NYS Register/December 9, 2015

Revisions to the Proposed Amendment following the public comment BOCES related to collective bargaining. However, Education Law § 3012- period d(10) explicitly requires collective bargaining relating to the decision on Following the 45-day public comment period required under the State whether to use the optional second subcomponent in the student perfor- Administrative Procedure Act, the proposed amendment was revised in mance category and which measure is to be used in such subcomponent, several places as follows: and collective bargaining relating to how to implement the observation/ First, the Department has decided to reexamine the State growth model, school visit category in accordance with the Taylor Law. Since collective which will take additional time. In the interim, the Department has bargaining is already required by the statute and it is impossible to amended Subpart 30-2 and 30-3 to prescribe an appeals process whereby ascertain in advance what issues might trigger additional bargaining in certain teachers or principals who were rated Ineffective on their State- more than 700 school districts and BOCES in the State, the State Educa- provided growth score may appeal to the Department based on certain tion Department has no basis for determining whether and to what extent anomalies described in the regulation. The appeals process would apply to provisions of the proposed rule might result in additional costs attributable growth scores for the 2014-2015 school year and thereafter until the to collective bargaining beyond those required by statute. growth model has been re-examined by the Department and appropriate The costs discussed below are based on the following assumptions: (1) experts in the field. an estimated hourly rate for teachers of $53.18 (based on an average an- The Department has also revised the regulation to provide for a hard- nual teacher salary of $76,572.00 divided by 1,440 hours per school year ship waiver from the requirement for an independent observer for rural (180 days, 8 hours each day)); (2) an estimated hourly rate for principals of $67.20 (based on an average annual principal salary of $118,269.00 school districts and for school districts with one registered school building divided by 1,760 hours per school year (220 days, 8 hours each day)); and who would be unduly burdened if the district were required to retain an in- (3) an estimated hourly rate for superintendents of $86.59 (based on an dependent evaluator. A school district would need to demonstrate that due average annual superintendent of schools salary of $166,244.00 divided to the size and limited resources of the school district it is unable to obtain by 1,920 hours per school year (240 days, 8 hours each day)). The Depart- an independent evaluator within a reasonable proximity to the school ment anticipates that the proposed rule will impose the following costs on district. In lieu of an independent evaluator, the school district would be school districts/BOCES. The estimated costs below assume that school required to provide a second observation conducted by a trained evaluator districts and BOCES will need to pay for extra time for personnel at cur- who is different than the supervisor or evaluator who conducted the first rent rates. However, most districts and BOCES are or should be perform- observation. ing these activities currently, but the State does not have data on the Also, in response to concerns relating to a teacher’s/principal’s privacy, amount of hours currently dedicated to these activities. the Department revised the provisions in the June regulations relating to Required Student Performance Category teacher/principal privacy to eliminate the requirement that parents be The statute requires that a teacher or principal’s evaluation be based on provided with the scores/ratings on the student performance and observa- one required and one optional measure of student performance. For the tion categories and instead, are requiring that Education Law § 3012-c ap- required subcomponent, for teachers whose courses end in a State created ply without modification, except that there is no composite effectiveness or administered test for which there is a State-provided growth model and score under Education Law § 3012-d. at least 50% of a teacher’s students are covered under the State-provided The Department also received several comments on the use of artifacts. growth measure, such teachers shall have a State-provided growth score Education Law § 3012-d(10)(b) requires implementation of the observa- based on such model. There are no additional costs beyond those imposed tion category to be subject to local negotiation. Therefore, while no ad- by statute for evaluating a teacher based on State assessments. For the ditional changes were made in response to these comments, the regula- required subcomponent, for principals with at least 30% of their students tions adopted by the Board at its June meeting recognize that parts of the covered under a State-provided growth measure, such principal shall have rubric that are not observable during classroom observations may be a State-provided growth score and there are no additional costs beyond incorporated into the observation score where they are observed during those imposed by statute. any optional pre- or post-observation review or other natural conversa- For a teacher whose course does not end in a State created or adminis- tions between teachers and their evaluators. tered test or where less than 50% of the teacher’s students are covered The Department also made the following technical amendments to the under the State-provided growth measure, such teachers shall have a proposed amendment: Student Learning Objective (“SLO”) consistent with a goal setting process The Department modified section 100.2(o) of the Commissioner’s determined or developed by the Commissioner that results in a student regulation to conform to Education Law § 3012-d. growth score; provided that for any teacher whose course ends in a State The Department clarified that a teacher’s and principal’s score and rat- created or administered assessment for which there is no State-provided ing on the observation/school visit category and in the student perfor- growth model, such assessment must be used as the underlying assess- mance category, if available, shall be computed and provided to the teacher ment for such SLO. For a principal where less than 30% of their students or principal, in writing, by no later than the last day of the school year for are covered under a State-provided growth measure, such principals shall which the teacher or principal is being measured, but in no case later than have a SLO consistent with a goal setting process determined by the Com- September 1st of the school year next following the school year for which missioner that results in a student growth score; provided that for any the teacher or principal’s performance is measured. This will ensure that a principal whose course building or program includes courses that ends in a teacher’s or principal’s score on SLOs used for the required subcomponent State created or administered assessment for which there is no State- and their scores on the optional subcomponent, if used, are provided on or provided growth model, such assessment must be used as the underlying before September 1st. assessment for such SLO. The Department estimates that for teachers or The Department further clarified that nothing in this Subpart shall be principals who require SLOs, a teacher or principal will spend ap- construed to limit the discretion of a board of education or superintendent proximately 3 hours to set his/her goals for the year and that a principal/ of schools or other trained administrator to conduct observations/school superintendent will take approximately 1 hour per year to work with a visits of a teacher/principal in addition to those required under this section teacher/principal on the goal setting process. Based on the estimated for non-evaluative purposes. hourly rates described above, the Department estimates that the goal- Consistent with the requirements for the teacher evaluation system, the setting process will cost a school district/BOCES $226.74 per teacher (3 Department revised the proposed amendment to eliminate references to a teacher hours to set goals plus 1 principal hour to review goals with supervisor or other trained administrator from the requirement for an unan- teacher) and $288.19 per principal (3 principal hours to set goals plus 1 nounced school visit for principals and instead just generally provides that superintendent hour to review goals with principal). Moreover, districts at least one mandatory school visit shall be unannounced in an effort to be and BOCES should have been setting SLOs for teachers and principals aligned to the teacher evaluation system. since 2012-2013 when districts and BOCES were first required to set SLOs 4. COSTS: under the evaluation system; except for the New York City School District, a. Costs to State government: The rule implements Education Law sec- whose plan was imposed on them for the 2013-2014 school year pursuant tion 3012-d and does not impose any costs on State government, including to Education Law § 3012-c. the State Education Department, beyond those costs imposed by the The SLO process also requires the use of a student assessment. In statute. The new appeal process for the State-provided growth score will grades/subjects where no State created or administered assessment exists be performed by existing staff and therefore, the Department believes for such grades/subjects, the district/BOCES must use the SLO process there will be no additional costs to the State government. with either an approved third-party assessment (at a cost per student of ap- b. Costs to local government: Education Law section 3012-d, as added proximately $2.50-$14.00 per student), an approved district, regional, or by Chapter 56 of the Laws of 2015, establishes requirements for the BOCES developed assessment (which the Department expects would have conduct of annual professional performance reviews (APPR) of classroom minimal, if any costs), or a State assessment (which the Department teachers and building principals employed by school districts and boards expects would have no additional cost). of cooperative educational services (BOCES) for the 2015-2016 school Optional Student Performance Category year and thereafter. For teachers, the second optional subcomponent shall be comprised of The proposed rule may result in additional costs on school districts and one or more the following options, as determined locally:

32 NYS Register/December 9, 2015 Rule Making Activities

D A second State-provided growth score on a State-created or adminis- a hardship waiver from the requirement for an independent observer for tered test; provided that the State provided growth measure is different rural school districts and for school districts with one registered school than that used in the required subcomponent of the student performance who be unduly burdened if they were required to retain an independent category, which may include one or more of the following measures: evaluator. A school district would need to demonstrate that due to the size a teacher-specific growth score computed by the State based on per- and limited resources of the school district it is unable to find an indepen- centage of students who achieve a State-determined level of growth (e .g., dent evaluator within a reasonable proximity to the school district. In lieu percentage of students whose growth is above the median for similar of an independent evaluator, the school district would be required to have students); a second evaluation conducted by a trained evaluator, who is different school-wide growth results based on a State-provided school-wide from the supervisor or evaluator who conducted the first evaluation. growth score for all students attributable to the school who took the State Since the use of peer observers is optional, there are no additional costs English language arts or math assessment in grades 4-8; or imposed by the statute or regulation for this subcomponent. However, if a school-wide, group, team, or linked growth results using available district/BOCES elects to use peer observers, the Department estimates State-provided growth scores that are locally-computed; that the use of a peer observer for teachers may cost approximately D A growth score based on a State designed supplemental assessment $372.26 per observation (total time for teacher observation cycle plus total calculated using a State provided or approved growth model. time for peer observer in the teacher observation cycle times the teacher Since the second subcomponent is optional, there are no additional costs hourly rate), and will be dependent upon the particular parameters determined locally. Principal Assessment: The Department expects that a imposed by the statute or regulation for this subcomponent. However, if a principal will spend approximately 3 hours preparing for a school visit by district/BOCES elects to use a State-designed supplemental assessment, a supervisor/other trained administrator and that a supervisor/other trained the Department estimates that the cost of purchasing an assessment may administrator will spend approximately 3 hours assessing and observing a cost approximately $2.50-$14.00 per student, depending on the particular principal’s practice per visit. Therefore, for each principal, a school district assessment selected. If a district/BOCES elects to use the second subcom- or BOCES would spend approximately $1325.94 per year on school site ponent and utilizes a second State-provided growth score, there should be visits, under the proposed rule. The regulations allow for districts and no additional costs. BOCES to identify trained independent evaluators from within the district, For principals, the second optional subcomponent shall be comprised of therefore the estimate of $1325.94 remains accurate as a yearly estimate the one or more the following options, as determined locally: for school visits. This cost may vary upon the use of external independent D A second State-provided growth score on a State-created or adminis- evaluators. tered test; provided that the State provided growth measure is different Since the use of peer observers is optional, there are no additional costs than that used in the required subcomponent of the student performance imposed by the statute or regulation for this subcomponent. However, if a category, which may include one or more of the following measures: district/BOCES elects to use peer observers, the Department estimates a principal-specific growth score computed by the State based on per- that the use of a peer observer for principals may cost approximately centage of students who achieve a State-determined level of growth (e .g., $604.80 per site visit (total time for principal observation cycle plus total percentage of students whose growth is above the median for similar time for peer observer in the principal observation cycle times the principal students); or hourly rate), and will dependent upon the particular parameters determined school-wide, group, team, or linked growth results using available locally. State-provided growth scores that are locally-computed; The proposed amendment also requires that the observations/school D A growth score based on a State designed supplemental assessment visits be based on a teacher or principal practice rubric approved by the calculated using a State provided or approved growth model. Department or a rubric approved through a variance process. The majority Since the second subcomponent is optional, there are no additional costs of rubrics on the State’s approved list are available to districts/BOCES at imposed by the statute or regulation for this subcomponent. However, if a no cost. While some rubrics may offer training for a fee and others may district/BOCES elects to use a State-designed supplemental assessment, require proprietary training, any costs incurred for training are costs the Department estimates that the cost of purchasing an assessment may imposed by the statute. Most rubric providers do not require a school cost approximately $2.50-$14.00 per student, depending on the particular district/BOCES to receive training through the provider and some provid- assessment selected. If a district/BOCES elects to use the second subcom- ers even provide free online training. The Department estimates that ponent and utilizes a second State-provided growth score, there should be districts/BOCES can obtain a teacher or principal practice in the following no additional costs. price range: $0-$360 per educator evaluated. Some practice rubrics may Teacher Observation/Principal School Visit Category charge an additional fee for training on the rubric, estimated to cost ap- For the teacher observation/principal school visit category of the evalu- proximately $0-$8,000, although most rubric providers do not require a ation, the proposed amendment requires that ratings be based on at least user to receive training through the rubric provider. two classroom observations for teachers and at least two school visits for Reporting and Data Collection principals. The proposed amendment requires at least one observation for The proposed amendment requires that school districts or BOCES teachers and at least one school visit for principal to be conducted by the report information to the Department on enrollment and attendance data supervisor/other trained administrator. The proposed amendment also and any other student, teacher, school, course and teacher/student linkage requires at least one observation for teachers and at least one school visit data. The majority of this data is required to be reported under the Amer- for principals by trained independent evaluator(s) selected by the district. ica COMPETES Act (20 U.S.C. 9871). Therefore, no additional costs are For teacher observations, the Department estimates the following costs: imposed by the proposed amendment. To the extent such information is Teacher Observations: While the regulation does not specifically pre- not required to be reported under federal law, the Department expects that scribe how a district must conduct its observations, based on models cur- most districts/BOCES already compile this information and, therefore, rently in use, the Department expects a teacher will spend approximately 3 these reporting requirements are minimal and should be absorbed by exist- hours per classroom observation for pre- and post-conference meetings ing district or BOCES resources. with the principal/evaluator and the 1 hour in the observation itself, which The proposed amendment also requires that every teacher and principal would equate to 6 hours per year (1 hour for the pre-conference, 1 hour for be required to verify the subjects and/or student rosters assigned to them. the observation, and 1 hour for the post-observation). Depending on the This verification is part of the normal BEDS data verification process and model used, these estimates could decrease to 1 hour and 10 minutes for therefore the Department believes that any costs imposed by this require- classroom observations that include a post-conference and walkthrough ment in the regulation are minimal, if any. As for the additional reporting observation with the principal/evaluator, which would equate to 2 hours requirements contained in section 30-3.3 of the Rules of the Board of and 20 minutes for the year. Based on the more extended observation Regents, school districts or BOCES are required to report many of these model, the Department expects that a principal/evaluator would spend ap- requirements under the existing APPR regulations (section 30-2.3 of the proximately 1 hour for a teacher classroom observation and 3 additional Rules of the Board of Regents). Therefore, reporting of such information hours for pre-conference and post-conference meetings associated with would not impose any additional costs on a school district or BOCES. the conference (1 hour for each pre-conference, 1 hour for preparation for Vested Interest post-conference, and 1 hour in post-conference), which would equate to 4 The proposed amendment also requires that districts certify that teach- hours per observation or 8 hours per teacher per year. Therefore, for each ers and principals not have a vested interest in the test results of students teacher, a school district or BOCES would spend approximately $856.68 whose assessments they score. The Department believes that most districts per year on classroom observations, under the proposed rule. The regula- already have this security mechanism in place, since it is a current require- tions allow for districts and BOCES to identify trained independent evalu- ment for evaluations conducted pursuant to Education Law § 3012-c. ators from within the district and, therefore, these estimates remain ac- However, in the event a district currently allows a teacher to score their curate as a yearly estimate for classroom observations. However, this cost own assessment, the Department expects that districts/BOCES can assign may vary depending on what external independent evaluators the district other teachers or faculty to score such assessments. Therefore, the Depart- selects. ment believes that any costs imposed by this requirement in the regulation Moreover, the Department has also revised the regulation to provide for are minimal, if any.

33 Rule Making Activities NYS Register/December 9, 2015

Scoring rubric that was self-developed or developed by a third-party or a newly The statute requires that a teacher receive an overall evaluation rating developed rubric, the school district or BOCES must seek a variance from based on their ratings on the two categories (student performance and the Department for the use of such rubric. teacher observation/principal school visit). The proposed amendment sets The proposed amendment also requires that the process by which points forth the scoring ranges for the rating categories in these two categories are assigned in the various subcomponents and the scoring ranges for the and the overall rating category is prescribed by statute. The proposed subcomponents must be transparent and available to those being rated amendment does not impose any additional costs beyond those imposed before the beginning of each school year. by statute. The proposed amendment requires that the entire annual professional Training performance review be completed and provided to the teacher or principal The statute requires that all evaluators be properly trained before as soon as practicable but in no case later than September 1st of the school conducting an evaluation. The proposed amendment requires that a lead year next following the school year for which the teacher or principal’s evaluator be certified by the district/BOCES before conducting and/or performance is measured. The teacher’s and principal’s score and rating completing a teacher’s or principal’s evaluation and that evaluators be on the observation/school visit category and in the student performance properly trained. Since the training is required by statute, the only ad- category, if available, shall be computed and provided to the teacher or ditional cost imposed are associated with the district or BOCES’ certifica- principal, in writing, by no later than the last day of the school year for tion and recertification of lead evaluators, which costs are expected to be which the teacher or principal is being measured, but in no case later than negligible and capable of absorption using existing staff and resources. September 1st of the school year next following the school year for which Teacher and Principal Improvement Plans and Appeal Procedures the teacher or principal’s performance is measured. The statute, in subdivision 15 of § 3012-d, requires the Commissioner A provider seeking to place a practice rubric in the list of approved to determine the extent to which subdivisions 4, 5 and 5-a of § 3012-c rubrics, or an assessment on the list of approved assessments, shall submit should apply to the new evaluation system under § 3012-d. Subdivision 4 to the Commissioner a written application that meets the requirements of of § 3012-c requires school districts/BOCES to develop teacher and sections 30-2.7 and 30-2.8, respectively. An approved rubric or approved principal improvement plans for teachers rated Ineffective or Developing. assessment may be withdrawn for good cause. The governing body of Subdivision 5 of § 3012-crequires school districts and BOCES to develop each school district is required to ensure that evaluators have appropriate an appeals procedure through which a teacher or principal may challenge training before conducting an evaluation under this section and the lead their APPR. Subdivision 5-a of § 3012-c establishes special appeals evaluator must be appropriately certified and periodically recertified. procedures for the New York City School District. The proposed amend- If a teacher or principal is rated “Developing” or “Ineffective,” the ment does not impose any additional costs on districts/BOCES relating to school district or BOCES is required to develop and implement a teacher the development of TIP/PIPs or an appeal procedure, beyond those cur- or principal improvement plan (TIP or PIP) that complies with section 30- rently imposed by statute under Education Law § 3012-c(4) and (5). The 3.11. Such plan shall be developed by the Superintendent or his or her only changes made to the TIP/PIP requirement are with respect to its tim- designee, as part of his/her pedagogical judgement, and include identifica- ing and the clarification that the superintendent or his/her designee, in the tion of needed areas of improvement, a timeline for achieving improve- exercise of their pedagogical judgment develops the TIP/PIP. Neither ment, the manner in which the improvement will be assessed and, where change should generate additional costs. The only change made to the ap- appropriate, differentiated activities to support improvement in those peals provision is the clarification that an appeal from the substance of the areas. evaluation, which is a ground for appeal under Education Law § 3012- In accordance with the requirements of the statute, the proposed amend- c(5), includes an instance in which the teacher or principal receives a ment also requires a school district or BOCES to develop an appeals pro- Highly Effective rating on the observation/school visit category and an cedure through which a teacher or principal may challenge their annual Ineffective rating on the student performance category and challenges the professional performance review. result based on an anomaly, as determined locally. If a district/BOCES lo- Education Law § 3012-d also requires the Commissioner to annually cally determines that an appeal based on an anomaly may be taken where monitor and analyze trends and patterns in teacher and principal evalua- such an appeal could not be brought previously, the Department believes tion results and data to identify districts, BOCES and/or schools where ev- this additional grounds for an appeal could be incorporated into the idence suggests a more rigorous evaluation system is needed to improve district’s/BOCES’ current appeal process and therefore no additional costs educator effectiveness and student learning outcomes. A school district or should incur. The new appeal process for the State-provided growth score BOCES identified by the Department in one of the categories enumerated will be performed by existing staff and therefore, the Department believes above may be highlighted in public reports and/or the Commissioner may there will be no additional costs to the State government. order a corrective action plan. (c) Costs to private regulated parties: none, except that if a teacher/ The proposed amendment also prohibits a student from being instructed principal chooses to appeal his/her State-provided growth score, he/she by two teachers in the same subject, in two consecutive years, by teachers must file an appeal within 20 days of receipt of his/her score or within 20 who are rated ineffective. If a school district assigns a student to a teacher days of the effective date of the regulation, whichever is later. in the same subject for two consecutive years, and the teacher is rated (d) Costs to regulating agency for implementation and continued ineffective for two consecutive years, the school district must seek a administration: See above. waiver from the Commissioner for the specific teacher if (1) the district 5. LOCAL GOVERNMENT MANDATES: cannot make alternative arrangements to reassign the teacher to another The proposed amendment does not impose any additional program, ser- grade/class due to a hardship and (2) the district has an improvement or re- vice, duty or responsibility upon any county, city, town, village, school moval plan in place for the teacher that meets guidelines prescribed by the district, fire district or other special district. Commissioner. The regulation also establishes an appeals process for 6. PAPERWORK: teachers/principals who wish to challenge their State provided growth Section 30-3.3 of the proposed amendment requires that each school score. Teachers/ principals would be required to submit an appeal within district shall adopt an APPR plan for its classroom teachers and building 20 days of their receipt of a State-provided growth score or within 20 days principals and submit such plan to the Commissioner for approval. The of the effective date of the regulation, whichever is later, and school Commissioner shall approve or reject the plan. The Commissioner may districts would have 10 days to reply. reject a plan that does not rigorously adhere to the regulations and the law. 7. DUPLICATION: The regulations also provide that if any material changes are made to the The rule does not duplicate existing State or Federal requirements. plan, the district must submit the material changes by March 1 of each 8. ALTERNATIVES: school year, on a form prescribed by the Commissioner, to the Commis- As explained in the Needs and Benefits section of this Statement, the sioner for approval. This section also requires that the APPR plan describe Department considered the over 4,000 comments it received before the the school district’s or BOCES’ process for ensuring that the Department regulations were adopted and reviewed the materials submitted by receives accurate teacher and student data, including certain identified in- stakeholders and experts at the Learning Summit, which are available on formation; the assessment development, security and scoring processes the Department’s website at http://www.nysed.gov/content/learning- utilized by the school district or BOCES, which includes a requirement summit-submitted-materials. The Department presented its recommenda- that any process and assessment or measures are not disseminated to tions based on its analysis of the materials and presentations at the Learn- students before administration and that teachers and principals do not have ing Summit and sought feedback on various components of the new a vested interest in the outcome of the assessments they score; describe the evaluation system from the Board of Regents at its May meeting. The details of the evaluation system used by the district or BOCES; how the Department presented a powerpoint presentation or slide deck to the Board district or BOCES will provide timely and constructive feedback to teach- of Regents, posted on our website at http://www.regents.nysed.gov/ ers and building principals and the appeal procedures used by the district common/regents/files/meetings/May%202015/APPR.pdf, which ex- or BOCES. plained the guiding principles and rationale for the Department’s recom- If a school district or BOCES seeks to use a teacher or principal practice mendations (see pp. 7-10). It further explained the 1-4 rubric scoring rubric that is either a close adaptation of a rubric on the approved list, or a ranges recommended by NYSED, NYSUT and the NYC-Commissioner

34 NYS Register/December 9, 2015 Rule Making Activities imposed rubric ranges for observations under Ed. Law § 3012-c (p.12) ther steps were needed to ascertain that fact and one were taken. Accord- and the differences in differentiation that are produced using the NYSUT ingly, a regulatory flexibility analysis for small businesses is not required recommended and the Commissioner imposed NYC ranges (p.13). and one has not been prepared. The Department also provided recommendations for the number, (b) Local governments: frequency and duration of observations and the subcomponent weights for 1. EFFECT OF RULE: the observation category and recommendations on observation rubrics for The rule applies to each of the approximately 695 school districts and the Board of Regents to consider, balancing the feedback it received from 37 boards of cooperative educational services (BOCES) in the State. the field (p. 16, 18, 20). 2. COMPLIANCE REQUIREMENTS: It then produced the current scoring ranges for SLOs out of a 0-20 scale See Needs and Benefits and Paperwork sections of the Regulatory and the current method for determining points within the 0-20 scoring Impact Statement submitted herewith for an analysis of the compliance range for the State-provided growth score. The Department presented requirements for school districts and boards of cooperative educational NYCDOE’s and NYSUT’s suggested cut scores (pp. 21-25) and recom- services. mended that the Board maintain the existing normative method to estab- 3. PROFESSIONAL SERVICES: lish growth scores for the required and optional subcomponents of the The proposed rule does not impose any additional professional services student performance category. The Department further recommended that requirements on local governments beyond those imposed by, or inherent the Board maintain the full current list of characteristics in the growth in, the statute. model and that it explore with stakeholders and experts future options, 4. COMPLIANCE COSTS: new co-variates and possible adjustments to normative method and/or cri- See the Costs section of the Regulatory Impact Statement submitted terion referenced measures of growth (p. 26). The Department provided herewith for an analysis of the costs of the proposed rule to school districts further recommendations on the optional subcomponent of the student and BOCES. performance category and the weightings for the student performance cat- 5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY: egory (p. 27-30). The rule does not impose any additional technological requirements on The Department then recommended that the principal system be aligned school districts or BOCES. Economic feasibility is addressed in the Costs to the teacher evaluation system (p. 33) and provided recommendations to section of the Regulatory Impact Statement submitted herewith. the Board on which provisions in Education Law § 3012-c should be 6. MINIMIZING ADVERSE IMPACT: continued under Education Law § 3012-d(15) (pg. 34-35). Recommenda- The rule is necessary to implement, and otherwise conform the Com- tions were also provided on the waiver to assign students to an ineffective missioner’s Regulations to, Subparts D and E of Part EE of Chapter 56 of teacher for two consecutive years and the Hardship Waiver for November the Laws of 2015 and Chapter 20 of the Laws of 2015 relating to the An- 15 approval deadline (p. 37). nual Professional Performance Review (APPR) of classroom teachers and After receiving input from the Board of Regents and stakeholders, the building principals. Since these provisions of the Education Law apply Department modified many of its May recommendations, which are equally to all school districts and BOCES throughout the State, it was not reflected in red in the slide deck presented to the Board at its June meeting possible to establish different compliance and reporting requirements. (http://www.regents.nysed.gov/common/regents/files/meetings// The proposed rule reflects areas of consensus among stakeholders, and Revised%20Version%20of%20PowerPoint%20Presentation.pdf. The in areas where there were varying recommendations, the Department at- green text in the slide deck represents changes made to the recommenda- tempted to reconcile those differences to reflect best practices while also tions during the June 2015 Regents meeting. taking into consideration recommendations in the Testing Reduction In response to field feedback, the Department revised its recommended Report regarding the reduction of unnecessary testing. rubric scoring ranges (pg. 7) to provide a range of permissible cut scores The Department also considered the comments from the school districts that reflected evidence of standards consistent with the four levels of the and BOCES during the 45-day public comment period under the State observation rubrics. The Department further recommended that the actual Administrative Procedure Act. As a result of these comments, the Depart- cut scores within the ranges be determined locally. The Department also ment provided for a hardship waiver from the requirement for an indepen- changed its recommendations on the subcomponent weightings on the dent observer for rural school districts and for school districts with one observation category (pg. 8) to lower the weightings for independent registered school who be unduly burdened if they were required to retain observers and provide for more local flexibility by setting minimum an independent evaluator. A school district would need to demonstrate weights. The Department also changed its recommendations on the that due to the size and limited resources of the school district it is unable frequency and duration of observations to instead provide a statewide to find an independent evaluator within a reasonable proximity to the minimum standard of two observations, with the frequency and duration school district. In lieu of an independent evaluator, the school district of such observations to be determined locally. Based on comment, the would be required to have a second evaluation conducted by a trained Department also changed its recommendation to require all annual evaluator, who is different from the supervisor or evaluator who conducted observations to use the same rubric across all observer types (p. 11). The the first evaluation. Department further clarified its recommendation around adjustments in 7. LOCAL GOVERNMENT PARTICIPATION: performance measures for student characteristic and for small numbers of The new law requires the Commissioner to adopt regulations necessary students (p. 15). The Department also changed its recommendations on to implement the evaluation system by June 30, 2015, after consulting scoring ranges for growth scores (p. 18) and the weightings for the student with experts and practitioners in the fields of education, economics and performance category (p. 19) when the optional subcomponent is used. psychometrics. It also required the Department to establish a process to In response to feedback from the Board, the Department also adjusted accept public comments and recommendations regarding the adoption of its recommendations to include as possible grounds for a local appeal in regulations pursuant to the new law and consult in writing with the Secre- instances where the student performance and observation categories pro- tary of the United States Department of Education on weights, measures duce anomalous results. and ranking of evaluation categories and subcomponents. It further The Department further amended its recommendations regarding the required the release of the response from the Secretary upon receipt continuation of the corrective action provisions in Education Law § 3012-c thereof, but in any event, prior to the publication of the regulations. to § 3012-d. By letter dated April 28, 2015, the Department sought guidance from 9. FEDERAL STANDARDS: the Secretary of the United States Department of Education on the weights, There are no applicable Federal standards concerning the APPR for measures and ranking of evaluation, as required under the new law and the classroom teachers and building principals as established in Education Secretary responded. Law §§ 3012-c and 3012-d. In accordance with the requirements of the statute, the Department cre- 10. COMPLIANCE SCHEDULE: ated an email box to accept comments on the new evaluation system The proposed amendment will become effective on its stated effective ([email protected]). The Department has received and reviewed over date. No further time is needed to comply. 4,000 responses and has taken these comments into consideration in Regulatory Flexibility Analysis formulating the proposed amendments. In addition, the Department held a (a) Small businesses: Learning Summit on May 7, 2015, wherein the Board of Regents hosted a The proposed rule implements, and otherwise conforms the Commis- series of panels to provide recommendations to the Board on the new sioner’s Regulations to, Subparts D and E of Part EE of Ch.56, L.2015 and evaluation system. Such panels included experts in education, economics, Ch. 20, L. 2015, relating to Annual Professional Performance Review and psychometrics and State-wide stakeholder groups including but not (APPR) of classroom teachers and building principals employed by school limited to NYSUT, UFT, School Boards, NYSCOSS and principal and districts and boards of cooperative educational services (BOCES) in order parent organizations. Since the new law was enacted in April, the Depart- to implement new Education Law § 3012-d. The rule does not impose any ment also met with individual stakeholder groups to discuss their recom- reporting, recordkeeping or other compliance requirements, and will not mendations on the new evaluation system. have an adverse economic impact, on small business. Because it is evident 8. INITIAL REVIEW OF RULE (SAPA § 207): from the nature of the rule that it does not affect small businesses, no fur- Pursuant to State Administrative Procedure Act section 207(1)(b), the

35 Rule Making Activities NYS Register/December 9, 2015

State Education Department proposes that the initial review of this rule evaluation system. Such panels included experts in education, economics, shall occur in the fifth calendar year after the year in which the rule is and psychometrics and State-wide stakeholder groups including but not adopted, instead of in the third calendar year. The justification for a five limited to NYSUT, UFT, School Boards, NYSCOSS and principal and year review period is that the proposed amendment is necessary to imple- parent organizations. Since the new law was enacted in April, the Depart- ment State statute. Accordingly, there is no need for a shorter review ment has also been separately meeting with individual stakeholder groups period. and experts in psychometrics to discuss their recommendations on the new The Department invites public comment on the proposed five year evaluation system. review period for this rule. Comments should be sent to the agency contact During the 45-day public comment, the Department also received com- listed in item 10. of the Notice of Proposed Rule Making published ments from representatives of various school districts and BOCES located herewith. across the State, including those located in rural areas of the State. In an Rural Area Flexibility Analysis effort to address some of these concerns, the Department has revised the 1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS: regulation in various places as discussed in the Regulatory Impact State- The proposed rule applies to all school districts and boards of coopera- ment, as submitted herewith. tive educational services (BOCES) in the State, including those located in Job Impact Statement the 44 rural counties with fewer than 200,000 inhabitants and the 71 towns The purpose of proposed rule is to implement Subparts D and E of Part EE and urban counties with a population density of 150 square miles or less. of Chapter 56 of the Laws of 2015 relating to Annual Professional Perfor- 2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE mance Reviews of classroom teachers and building principals employed REQUIREMENTS; AND PROFESSIONAL SERVICES: by school districts and boards of cooperative educational services in order See the Needs and Benefits and Paperwork sections of the Regulatory to implement Education Law § 3012-d. Because it is evident from the Impact Statement submitted herewith for the reporting, recordkeeping, and other compliance requirements for school districts and BOCES, nature of the proposed rule that it will have no impact on the number of including those located in rural areas of the State. The rule does not impose jobs or employment opportunities in New York State, no further steps any additional professional services requirements on local governments were needed to ascertain that fact and none were taken. Accordingly, a job beyond those imposed by, or inherent in, the statute. impact statement is not required and one has not been prepared. 3. COSTS: Assessment of Public Comment See the Costs section of the Regulatory Impact Statement submitted Since publication of a Notice of Revised Rule Making in the State Reg- herewith for an analysis of the costs of the proposed rule, which include ister on October 7, 2015, the State Education Department (SED) received costs for school districts and BOCES across the State, including those lo- the following comments: cated in rural areas. 1. COMMENT: 4. MINIMIZING ADVERSE IMPACT: We received some comments requesting the trigger for an appeal of a The rule is necessary to implement, and otherwise conform the Com- State-provided growth score be expanded to include the following: missioner’s Regulations to, Subparts D and E of Part EE of Chapter 56 of First, the definition should be expanded to include teachers who receive the Laws of 2015, relating to the Annual Professional Performance Review an Effective rating on their observations and an Ineffective growth score. (APPR) of classroom teachers and building principals employed by school Teachers receiving an Effective score on their observations are deemed by districts and boards of cooperative educational services (BOCES) in order their lead evaluator to be an effective teacher. A two rating category dif- to implement new Education Law § 3012-d. Because the statute upon ference between the growth score and the observation rating should be which the proposed amendment is based applies to all school districts and enough to trigger an appeal. BOCES in the State, it is not possible to establish differing compliance or Second, any teacher who receives a group measure score based on a reporting requirements or timetables or to exempt schools in rural areas principal’s growth score should have the same ability to appeal as the from coverage by the proposed amendment. principal does. Simple fairness says if the growth score is not correct for The proposed rule reflects areas of consensus among stakeholders, and the principal it cannot be correct for the teachers in the building. When the in areas where there were varying recommendations, the Department at- group measure was part of the state growth SLO process, the teacher had tempted to reconcile those differences to reflect best practices while also no say in the decision to use the measure and the measure may not be re- taking into consideration recommendations in the Testing Reduction lated to their subject area. Report regarding the reduction of unnecessary testing. Third, any teacher teaching students that are in the 95th percentile of The Department also considered the comments from the school districts scores or the 5th percentile of scores who receives an Ineffective should and BOCES during the 45-day public comment period under the State be eligible to appeal their growth score. This change would address the Administrative Procedure Act. As a result of these comments, the Depart- questions raised by teachers of students falling into the extremes of perfor- ment provided for a hardship waiver from the requirement for an indepen- mance where the tests do not always have enough items to measure growth dent observer for rural school districts and for school districts with one properly at either end of the scale. registered school who be unduly burdened if they were required to retain Fourth, it was suggested that the appeals process be expanded for teach- an independent evaluator. A school district would need to demonstrate ers who receive a growth rating of Ineffective or Developing in the prior that due to the size and limited resources of the school district it is unable year and the results in both years were based on the NYSAA and to find an independent evaluator within a reasonable proximity to the NYSESLAT. school district. In lieu of an independent evaluator, the school district Fifth, one commenter suggested that the appeals process be expanded would be required to have a second evaluation conducted by a trained to include teachers who have fewer than 20 assessment results who were evaluator, who is different from the supervisor or evaluator who conducted continuously enrolled. the first evaluation. DEPARTMENT RESPONSE: 5. RURAL AREA PARTICIPATION: The process for teachers to challenge State-provided growth scores was The new law requires the Commissioner to adopt regulations necessary added to the regulations to address certain limited circumstances where to implement the evaluation system by June 30, 2015, after consulting there is a significant fluctuation in growth scores from one year to the next with experts and practitioners in the fields of education, economics and and other non-statistical measures of effectiveness strongly indicate that psychometrics. It also required the Department to establish a process to the teacher was otherwise Highly Effective and that the score on the State- accept public comments and recommendations regarding the adoption of provided growth score was an anomaly. Accordingly, the Department regulations pursuant to the new law and consult in writing with the Secre- believes that to be eligible for an appeal, it is appropriate to require that a tary of the United States Department of Education on weights, measures teacher receive a rating of Highly Effective in the Other Measures and ranking of evaluation categories and subcomponents. It further subcomponent. required the release of the response from the Secretary upon receipt With respect to scores based on school-wide/group/team measures, the thereof, but in any event, prior to the publication of the regulations. appeal process was intended to allow teachers or principals to challenge By letter dated April 28, 2015, the Department sought guidance from only State-provided growth scores. In the case of school-wide/group/team the Secretary of the United States Department of Education on the weights, measures, these scores are not generated by the State, but instead are as- measures and ranking of evaluation, as required under the new law and the signed by the district. Therefore, these scores cannot be challenged Secretary responded. through the State appeal process. However, depending on a district/ In accordance with the requirements of the statute, the Department cre- BOCES local appeal process, such scores may be appealed locally. ated an email box to accept comments on the new evaluation system Regarding allowing appeals in instances where the students in a ([email protected]). The Department has received and reviewed over teacher’s class or principal’s building have a very low or high proficiency 4,000 responses and has taken these comments into consideration in level on the underlying assessment, the Department does not recommend formulating the proposed amendments. In addition, the Department held a changes to the State appeal process because the State-provided growth Learning Summit on May 7, 2015, wherein the Board of Regents hosted a model does not measure proficiency, but instead growth, as required by series of panels to provide recommendations to the Board on the new Education Law §§ 3012-c and 3012-d. Moreover, the Department’s

36 NYS Register/December 9, 2015 Rule Making Activities regulations provide for a workgroup to be convened to examine evalua- remains in its current form, it is likely that bargaining over the new APPR tions, including the growth model. The Department believes that the will be disrupted and there will be significant delays in getting plans impact of students with very high and very low scores may have on the completed. We therefore urge you to amend the regulations to simply growth model is an appropriate topic for the workgroup to consider. continue the statutory provisions from section 3012-c regarding TIPs. With respect to the comment that the appeals process be expanded for DEPARTMENT RESPONSE: teachers who receive a growth rating of Ineffective or Developing in the Pursuant to Education Law § 3012-d(15), the Commissioner shall prior year and the results in both years were based on the NYSAA and determine the extent to which Teacher Improvement Plans and/or Principal NYSESLAT, the summative results of the State-provided growth model Improvement plans of § 3012-c apply to § 3012-d. The Department do not include results from the NYSAA or NYSESLAT. Therefore, the believes that the changes made in the regulation to TIP/PIPs, were within Department does not recommend any changes to the appeal process. its statutory authority to change. Another commenter suggested that the appeals process be expanded to 5. COMMENT: include teachers with fewer than 20 assessment results who were continu- The emergency regulations purport to give SED the power to require ously enrolled. A State-provided growth score is not generated for teach- changes to collective bargaining agreements as part of a corrective action ers who have fewer than 16 assessment scores. The Department, after plan. However, section 3012-d did not give SED the authority to modify consultation with its vendor, believes that a minimum “n” size of 16 is ap- the terms of the corrective action provision as written in 3012-c in this propriate and that no changes to the proposed amendment are needed. manner. In addition, the Taylor Law precludes SED from dictating the Another commenter suggests that the appeals process should be avail- terms of a collective bargaining agreement or requiring changes in a col- able to any teacher who is rated Developing on a growth measure, and lectively bargained APPR plan that has been approved by SED. Such ac- whose composite rating has resulted in a rating of Ineffective or Develop- tions if taken by SED could also unconstitutionally impair duly negotiated ing because of potential adverse consequences related to obtaining tenure. agreements. We therefore urge you to amend the regulations to delete the The appeals process was intended to address certain limited circumstances reference to requiring changes to collective bargaining agreements. where there is a significant fluctuation in growth scores from one year to DEPARTMENT RESPONSE: the next and other non-statistical measures of effectiveness strongly Pursuant to Education Law § 3012-d(15), the Commissioner shall indicate that the teacher was otherwise Highly Effective and that the score determine the extent to which the corrective action requirements of on the State-provided growth score was an anomaly. The Department does § 3012-c apply to § 3012-d. The Department believes that the changes not believe such a change would be consistent with the intent of the ap- made in the regulation to corrective action were within its statutory author- peals process. ity to change. 2. COMMENT: 6. COMMENT: The emergency regulations define a growth model as a statistical Current APPR guidance requires teachers who administer the NYSAA calculation. This definition severely limits what can be submitted for ap- or NYSESLAT to their students to use these assessments as the summa- proval to SED to growth models such as the model currently used by SED tive assessment for their SLOs. Since these exams were not created for under the state growth category. As the Regents have acknowledged with this purpose, we are requesting local flexibility in determining the summa- the growth score appeals process, these types of models have significant tive assessment to be used for the SLOs for these teachers. We urge you to limitations and can produce serious anomalies. Districts and local unions provide this flexibility by amending current guidance. would like to have options in this category that teachers can understand DEPARTMENT RESPONSE: and have confidence in. Statistical growth models do not offer this type of Education Law § 3012-d(4)(a)(1)(B) states that any teacher whose option. On the State growth side of the calculation, SED has acknowledged course ends in a state-created or administered assessment for which there for teachers not covered by the growth model, which is 80 percent of teach- is no state-provided growth model must use that assessment as the underly- ers, that student learning objectives that utilize a target setting methodol- ing evidence for the SLO. The Department believes that the current regula- ogy is a comparable measure of growth. This option should be made avail- tions and guidance are consistent with this statutory requirement. able in the second optional assessment category to give districts and local 7. COMMENT: unions a real choice. We urge you to change the definition of growth model An area of principal concern relates to that part of the September emer- to allow more options in this category. gency Rule that proposes the addition of a new section 30-3.16. That sec- DEPARTMENT RESPONSE: tion would allow teachers and principals to challenge their state-provided The Department’s regulations provide for a workgroup to be convened growth score and obtain a revised APPR rating if they are successful in to examine evaluations and review the existing State growth model. The such challenge. Department believes that the definition of “growth model” in the optional Specifically, section 30-3.16(c) provides that: subcomponent is a topic best left to further study by the Department and ... if the Department overturns a teacher’s/principal’s rating on the State- the workgroup. provided growth score, the district/BOCES shall substitute the teacher’s/ 3. COMMENT: principal’s results on the back-up SLO developed by the district/BOCES The SLO scoring bands contained in the emergency regulations will for such teacher/principal. If a back-up SLO was not developed, then the significantly change the SLO process in many school districts around the teacher’s/principal’s overall composite score and rating shall be based on State. In the observation category, districts were given a range on the scor- the portions of their annual professional performance review not affected ing bands for the rubrics to allow for local flexibility and to maintain the by the nullification of the State-provided growth score... (emphasis added). current process which has been working well. The same type of option Pursuant to the text of the bolded language, it would be reasonable to should be available for the SLO scoring bands to create less disruption. A conclude that the development of back-up SLOs is not mandatory. In change in the scoring bands will require the districts to re-train teachers contrast, however, the plain terms of section 30-3.4(b)(1)(iv) expressly and administrators on the SLO process. We urge you to allow districts to state that: avoid these new training costs by giving them the option to continue their Districts shall develop back-up SLOs for all teachers whose courses current SLO scoring bands. end in a State created or administered test for which there is a State- DEPARTMENT RESPONSE: provided growth model to use in the event that no State-provided growth After lengthy discussion and debate at the June Board of Regents meet- score can be generated for such teachers. ing, and after taking into account the recommendations from the May Clearly, the apparent conflict between both sections of the proposed Learning Summit and other stakeholder feedback, the Board of Regents Rule thus creates confusion regarding the mandatory/non-mandatory chose to adopt the SLO scoring ranges. Further, these ranges mimic the nature of back-up SLOs. Are school districts required to develop back-up ranges that the Department has recommended through guidance under SLOs or not? If SLOs are required by section 30-3.4(b)(1)(iv), then there Education Law § 3012-c. should be no language in section 30-3.16 that can be interpreted to suggest 4. COMMENT: the contrary. Section 3012-c(4) required that TIPs be developed locally through col- Thus, the Association urges that, to avoid confusion over the proper lective bargaining. The emergency regulations attempt to change this pro- implementation of the proposed rules, the Board of Regents adopt revi- vision and remove TIPs from the bargaining process. However, section sions that remove the ambiguities presented by the language discussed 3012-d did not give SED the authority to modify the TIPs provision in this above. way. In addition, TIPs are a mandatory subject of bargaining because they DEPARTMENT RESPONSE: are procedures related to both the evaluation process under 3012-d and the Section 30-3.4(b)(1)(iv) requires districts to develop back-up SLOs for disciplinary process under 3020-b. Also, virtually every plan in the state all teachers whose courses end in a State created or administered test for has a collectively bargained TIPs process, and even if these agreements which there is a State-provided growth model to use in the event that no include non-mandatory provisions, such provisions are now mandatorily State-provided growth score can be generated for such teachers. Section negotiable pursuant to the Taylor Law. SED cannot alter the mandatory 30-3.4(b)(1)(iv) applies to annual professional performance review plans nature of a subject of bargaining through regulation, so districts that refuse negotiated pursuant to Education Law § 3012-d. However, the appeals to bargain over TIPs will be violating the Taylor Law. If the regulation process described in section 30-3.16 applies to APPRs conducted in the

37 Rule Making Activities NYS Register/December 9, 2015

2015-2016 school year and thereafter. Therefore, there may be some rare teacher practice in any subcomponent of a teacher’s evaluation. Accord- circumstances under Education Law § 3012-c where the district did not ingly, sections 30-3.4(d)(2)(ix) and (x) of the Rules of the Board of develop back-up SLOs even though the Department recommended that Regents limit observations to only those subcomponents of the practice they be set. Therefore, no change is needed. rubric that are observable, while at the same time recognizing that parts of 8. COMMENT: the rubric that are not observable during classroom observations may be The Westchester Putnam School Boards Association strongly supports incorporated into the observation score where they are observed during a two-year moratorium on the implementation of 3012-d and the concur- any optional pre- or post-observation review or other natural conversa- rent establishment of a panel of experts (including school district tions between teachers and their evaluators. The intention of the regula- practitioners) to provide guidance on the development of a reliable, valid, tory language is provide flexibility to districts and BOCES to implement educationally sound accountability system. This new accountability observation procedures that provide meaningful feedback to educators on system must serve the best interests of our children’s K-12 education; it their practice while maintaining fidelity to the requirements of Education should be clear in intent, yet broad enough to allow SED to develop and Law § 3012-d. implement a system that has the flexibility to address the diverse needs of 11. COMMENT: our school districts. And its implementation must not be linked to state aid There appears to be confusion over what constitutes an ‘‘observation payments. cycle’’ Some interpret this as an entire school year with a teacher's scores DEPARTMENT RESPONSE: growing in a fluid manner throughout the year. Others interpret an The Department has considered this comment. However since this com- observation cycle to be attached to an observation type (i.e. in our district ment seeks legislative amendments, no response is necessary. the observation cycle for an announced observation begins with the pre- 9. COMMENT: observation, ends with the post-observation and is contractually completed Based on the current interpretation of Subpart section 30-3.4(b)(1)(iii), in an 18 day window). It is our interpretation that after the 18 days of this identified below, my district is being encouraged to link some teachers in cycle, the score earned for this observation type remains static. The teacher our K-2 Primary School to state assessments used in our 3-6 Intermediate will receive additional scores from their other observation types during School. I do not believe the current interpretation of Subpart section 30- additional observation cycles throughout the school year. The scores from 3.4(b)(1)(iii) makes sense because will not measure the true contribution the observation cycles will be averaged and then weighted by observer of some of our teachers. type in determining the 1-4 score to be put into the matrix. The language in this subpart does not indicate that SLOs for teachers DEPARTMENT RESPONSE: whose courses do not end in a state test need to be tied to ‘‘course Neither the law nor the regulations mention or define “observation specific’’ assessments... it indicates the option of ‘‘using SLOs’’ based on cycle” and Education Law § 3012-d(10)(b) requires districts and BOCES ‘‘approved assessments’’ or linked to state assessments. In our case, it to collectively bargain how to implement the provisions of the teacher does not make sense for instance, to link our K-2 Physical Education observation/principal school visit category.. Therefore, the parameters for teacher to any state assessment used in a building where he does not teach. what will or will not be included as part of the observation process shall be It does make sense, however, to link him to the students in the building determined locally. where he works using the state approved assessment results, as measured 12. COMMENT: by SLOs, since he will have more of a direct impact on their learning for Out of the 90 students in my charge, 9 chose to sit for the NYS Math the given year. For instance, he may use a Common Core Tier 2 Vocabu- assessment. Because I did not have at least 16 students take the assess- lary word wall during PE classes that will directly impact the performance ment, I could not generate an individual state provided growth score. The of K-2 students on the actual state-approved third party STAR Reading as- back up plan my district put in place was for me, and others just like me, sessment that his students will take at the end of the year for ELA... as to receive the principal’s score. His score is derived from all the students measured by the SLOs created by each teacher in the building. The K-2 who took both the ELA and Math assessments. This negatively impacts Principal will be tied to the SLOs for all students in the building, and I me, as the score I received does not correlate with the students I teach. believe the regulation language above provides enough latitude to do the This is a problem for me because I am now rated in my growth component same for those K-2 teachers whose course does not end in a State test. as a developing teacher. This rating is based on student performance of However, that does not seem to be how it is being interpreted. students I do not teach. DEPARTMENT RESPONSE: It is important to note that I could not appeal the score the district as- Education Law § 3012-d(6)(d) requires that all district or regionally- signed to me because according to the NYSED growth score appeal pro- developed assessments that are intended to be used for APPR purposes be cess, if I received a building level score, I was not eligible for the appeal. approved by the Department. As part of the Assessment Request for However, my administrative colleagues may appeal their scores. How is Qualifications (RFQ) process, applicants must specify the grades and this fair? How does the Board of Regents rationalize this system of evalu- subjects for which their assessments meet all of the required criteria. Ac- ation? cordingly, if an assessment provider only indicates that their assessment DEPARTMENT RESPONSE: can be used to measure student learning in certain grades and subjects as See response to comment #1. With respect to scores based on school- part of their RFQ application, the Department can only approve the as- wide/group/team measures, the appeal process was intended to allow sessment for use in those grades and subjects. teachers or principals to challenge only State-provided growth scores. In 10. COMMENT: the case of school-wide/group/team measures, these scores are not gener- The ‘‘observable’’ aspect of these regulations has been confusing to ated by the State, but instead are assigned by the district. Therefore, these those in the field. As a group the leaders at this conference were befuddled scores cannot be challenged through the State appeal process. However, by the idea that aspects of the NY State Learning Standards could be depending on a district/BOCES local appeal process, such scores may be eliminated at the local level from the evaluation process. The guidance appealed locally. that was reiterated today was that it is a local decision for each district to 13. COMMENT: Another commenter asks the Department to define an determine what s observable in their rubric. Many of us would respect- independent evaluator to mean: fully ask for this language to be reconsidered. a. the evaluator must not work or have previously worked in the school Each approved rubric was approved because it corresponded back to where the teacher being observed works; the NY State Teaching Standards. Every leader in my work groups today b. the evaluator must not work or have previouslys worked for or with said they could very easily make a case for observability in each of the the principal or any assistant principal of the school where the teacher be- seven NY State Teaching Standards. ing observed works; We discussed that it made much more sense to us to say that all the NY c. the evaluator’s own performance review or any salary, rate of pay or State Teaching Standards need to be observed and rated but that it is a lo- benefit must not be based on or affected in any way by the ratings given to cal decision, based upon the varying rubrics, to determine which rubric teachers; and sub-components are observable. d. the evaluator may not confer with the teacher’s supervisor during the The current language allows for far too much inconsistency in the scor- school supervisor. ing and comparability of the teacher performance half. For instance, my DEPARTMENT RESPONSE: BOCES weighted the professional responsibilities aspects of the rubric at Education Law § 3012-d(4)(b)(2) requires that teachers be evaluated 20%. Meanwhile, a neighboring district removed these teaching standards based on a classroom observation by an impartial independent trained from their evaluations all together and their teachers will not be rated on evaluator or evaluators selected by the district. The statute allows an inde- any of those standards. pendent trained evaluator to be employed in the same district, but not the DEPARTMENT RESPONSE: same building. The proposed amendment is consistent with the statute. Rubric providers will be asked to identify the observable teaching stan- The Department has received numerous comments from districts, request- dards in the rubrics in the new RFQ being issued by the Department. With ing flexibility from this requirement and the proposed amendment allows regard to consideration of the observable standards and their respective certain districts in limited situations to apply for a hardship waiver from indicators, Education Law § 3012-d(6) prohibits the use of artifacts of this requirement. In light of the numerous comments received requesting

38 NYS Register/December 9, 2015 Rule Making Activities flexibility from this requirement, the Department does not believe that Paragraph (7) of subdivision (a) of section 4-1.5 is amended to clarify more stringent requirements are needed. that the compliance review report is referred to as the Department’s rec- 14. COMMENT: ommendation and that such report shall include a copy of the compliance One comment suggests that the Department make explicit that “other report and the institution’s response to such report. natural conversations” refer to conversations about an observed lesson or Subparagraphs (i) and (ii) of paragraph (8) of subdivision (a) of section other parts of the rubric that relate to the lesson observed that may not 4-1.5 are amended to clarify that a written response to the department’s have been directly observed. recommendation may be submitted to the Department. DEPARTMENT RESPONSE: Subparagraph (iii) of paragraph (8) of subdivision (a) of section 4-1.5 is The proposed amendment provides districts/BOCES with the flexibility amended to clarify the components of the record before the advisory to observe the New York State Teaching Standards/Domains that are part council. of the rubric but not observable during the classroom observation during Subparagraph (iv) of paragraph (8) of subdivision (a) of section 4-1.5 is any optional pre-observation conference or post-observation review or amended to clarify that the advisory council, upon conclusion of its review, other natural conversations between the teacher and the evaluator and shall prepare a recommendation with a report of the findings based upon incorporated into the observation score. In an effort to provide districts/ the record and testimony considered by the advisory council. BOCES with flexibility, the Department does not believe that a single def- Subparagraph (v) of paragraph (8) of subdivision (a) of section 4-1.5 is inition of “other natural conversations” is necessary. amended to revise the language in accordance with 4-1.5(a)(8)(iv), above. 15. COMMENT: Subparagraph (i) of paragraph (9) of subdivision (a) of section 4-1.5 is Another commenter suggests that the Department expand the district amended to clarify that the institution and the deputy commissioner have a waiver regarding placement of students by allowing the teacher improve- right to appeal the recommendation of the advisory council. ment plan to constitute the improvement plan that allows a district to be Subparagraph (ii) of paragraph (9) of subdivision (a) of section 4-1.5 is eligible for a waiver from the requirement that no student be placed in the amended to revise the language in accordance with 4-1.5(a)(8)(iv), above classes of teachers with Ineffective ratings for two years. In addition, the and to add that notice of the institution’s intent to appeal must be made in waiver should be automatically granted in schools that have only one writing, by first-class mail, express delivery, or personal service. teacher of a subject. Subparagraph (iii) of paragraph (9) of subdivision (a) of section 4-1.5 is DEPARTMENT RESPONSE: amended to revise the language in accordance with 4-1.5(a)(8)(iv), above. Section 30-3.14 of the proposed amendment allows the Commissioner Clause (a) of Subparagraph (iii) of paragraph (9) of subdivision (a) of to grant a waiver from the statutory prohibition of a student receiving a section 4-1.5 is amended to revise the language in accordance with teacher rated ineffective for two consecutive years if a district cannot 4-1.5(a)(8)(iv), above. make alternative arrangements and/or reassign a teacher to another grade/ Clause (b) of Subparagraph (iii) of paragraph (9) of subdivision (a) of subject because a hardship exists (for example, too few teachers with section 4-1.5 is amended to revise the language in accordance with higher ratings are qualified to teach such subject in that district); and the 4-1.5(a)(8)(iv), above. district has an improvement and/or removal plan in place for the teacher at Subparagraph (iv) of paragraph (9) of subdivision (a) of section 4-1.5 is issue that meets certain guidelines prescribed by the Commissioner. The amended to clarify that the Commissioner shall consider new financial in- Department will consider whether a TIP is acceptable when drafting its formation submitted by the institution as part of its appeal if the only guidelines. Moreover, the waiver may already be granted for districts that remaining deficiency noted by the agency is the institution’s failure to only have one teacher in a certain subject area if they have an improve- meet any agency standard pertaining to finances. ment and/or removal plan in place. Therefore, the Department does not Paragraph (10) of subdivision (a) of section 4-1.5 is amended to clarify believe a change is needed. the record on appeal to the Board of Regents. Additionally, that paragraph is amended to clarify the right to appeal from an adverse accreditation ac- PROPOSED RULE MAKING tion or probationary accreditation by the Board of Regents is only in limited circumstances where such determination is arbitrary or capricious NO HEARING(S) SCHEDULED or affected by an error of law or facts. Subparagraph (i) of paragraph (11) of subdivision (a) of section 4-1.5 is Voluntary Institutional Accreditation for Title IV Purposes amended to clarify the institution’s right to be represented by counsel dur- I.D. No. EDU-49-15-00013-P ing such an appeal. Subparagraph (ii) of paragraph (11) of subdivision (a) of section 4-1.5 is amended to clarify that an appeal may be commenced by the filing of an PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- appeal with the Board of Regents within 20 days of the determination of cedure Act, NOTICE is hereby given of the following proposed rule: adverse accreditation action or granting probationary accreditation. Proposed Action: Amendment of Subpart 4-1 of Title 8 NYCRR. Subparagraph (iv) of paragraph (11) of subdivision (a) of section 4-1.5 Statutory authority: Education Law, sections 207(not subdivided), is amended to revise the requirement to forward the appeal to the 210(not subdivided), 214(not subdivided), 215(not subdivided), 305(1) institutional accreditation appeals board within 20 days of receipt of such and (2) appeal. Subparagraph (v) of paragraph (11) of subdivision (a) of section 4-1.5 Subject: Voluntary institutional accreditation for Title IV purposes. is added to provide for the filing of a written response by the Board of Purpose: To clarify existing standards and procedures that must be met by Regents within 30 days of receipt of the appeal. institutions of higher education seeking voluntary accreditation by the Subparagraph (vi) of paragraph (11) of subdivision (a) of section 4-1.5 Board of Regents and the Commissioner of Education. is amended to require the institutional accreditation appeals board to Substance of proposed rule (Full text is posted at the following State provide 10 days written notice of the time and place of the appeal to the website:http://www.regents.nysed.gov/meetings/2015/2015-11/ institution and the Commissioner and the Board of Regents. higher-education): The Commissioner of Education proposes to amend Clauses (a), (b) and (c) of subparagraph (vii) of paragraph (11) of Section 4-1 of the Commissioner’s regulations, relating to voluntary subdivision (a) of section 4-1.5 are amended to provide the rules for the institutional accreditation for Title IV purposes. hearing procedures, the conduct of the hearing and the record of the The following is a summary of the major substantive changes to the hearing. proposed rule. Subparagraph (viii) of paragraph (11) of subdivision (a) of section 4-1.5 Clause (j) of subparagraph (iv) of paragraph (1) of subdivision (i) of is amended to provide that the institutional accreditation appeals board de- section 4-1.4 is amended to remove the requirement to compute statistics cision to affirm, reverse, remand or amend the Board of Regents’ determi- on student retention and graduation consistent with data reported to the nation of adverse accreditation action or granting probationary accredita- Department through its higher education data system. tion shall be by a majority vote. Paragraph (2) of subdivision (a) of section 4-1.5 is amended to remove Subclauses (4) and (5) of clause (b) of subparagraph (ix) of paragraph the requirement of the Department to notify the institution of timelines for (11) of subdivision (a) of section 4-1.5 is amended to revise the language commencement of the comprehensive review for institutions seeking re- in accordance with 4-1.5(a)(8), above. newal of accreditation under the outdated transitional procedures. Subclause (6) of clause (b) of subparagraph (ix) of paragraph (11) of Paragraph (3) of subdivision (a) of section 4-1.5 is amended to remove subdivision (a) of section 4-1.5 is amended to apply the same procedures the requirement that the institution submit a copy of the institutional as- prescribed in 4-1.5 (a). sessment plan developed pursuant to section 52.2(e)(3) with each self- Subclause (9) of clause (b) of subparagraph (ix) of paragraph (11) of study. subdivision (a) of section 4-1.5 is amended to apply the same procedures Paragraph (4) of subdivision (a) of section 4-1.5 is amended to clarify prescribed in 4-1.5 (a)(10). the basis for initiating a site visit. Subclause (4) of clause (c) of subparagraph (ix) of paragraph (11) of Paragraph (6) of subdivision (a) of section 4-1.5 is amended to revise subdivision (a) of section 4-1.5 is amended to revise the title of the draft the title of the draft compliance review report to compliance Report. probationary review report to the probationary review report.

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Subclause (5) of clause (c) of subparagraph (ix) of paragraph (11) of as an institutional accrediting agency. The Regents have held this authori- subdivision (a) of section 4-1.5 is amended to revise the language in ac- zation since 1952. All accrediting agencies must be recognized by USDE cordance with 4-1.5 (a)(11), above. and must re-apply periodically to renew their recognition. The Board of Item (iii) of subclause (6) of clause (c) of subparagraph (ix) of paragraph Regents and Commissioner of Education recently underwent a thorough (11) of subdivision (a) of section 4-1.5 is amended to add that the advisory review by USDE and the Secretary of Education continued the Regents council shall also review any other documentation upon which the authority as a nationally recognized institutional accrediting agency until department’s recommendation was based. 2017. Item (iv) of subclause (5) of clause (c) of subparagraph (ix) of paragraph As an accrediting agency, our ongoing responsibilities include periodic (11) of subdivision (a) of section 4-1.5 is amended to clarify that the advi- review of the standards for accreditation included in Subpart 4-1 of the sory council’s recommendation must be based on the record and the Rules of the Board of Regents. In conducting that review, the Department testimony before the council. identified areas where proposed revisions are needed (most of which are Subclause (7) of clause (c) of subparagraph (ix) of paragraph (11) of of a technical nature) to provide clarity to institutions accredited by the subdivision (a) of section 4-1.5 is amended to revise the language in ac- Regents and Commissioner about the accreditation process. cordance with 4-1.5 (a)(11), above. The amendments are being proposed to make a technical change to Subclause (9) of clause (c) of subparagraph (ix) of paragraph (11) of delete an outdated reference that requires institutions to report statistics on subdivision (a) of section 4-1.5 is amended to apply the same procedures retention and graduation rates in a manner consistent with data reported to prescribed in 4-1.5 (a)(10). the Department through its higher education data system and to make sev- Clause (d) of subparagraph (ix) of paragraph (11) of subdivision (a) of eral technical revisions in the procedures for accreditation to clarify steps section 4-1.5 is amended to replaces references to substantive change in the process and make clear the basis upon which accreditation recom- review report to Department recommendation and substitute the word “de- mendations and determinations are made. The amendments also clarify cision” with “determination” and other technical amendments. details about the appeals process that is available to institutions that receive Text of proposed rule and any required statements and analyses may be adverse accreditation actions or probationary accreditation by the Regents, obtained from: Kirti Goswami, State Education Department, Office of making the appeal process more aligned with what is required by other ac- Counsel, State Education Building, Room 148, 89 Washington Ave., crediting bodies, such as Middle States. Albany, NY 12234, (518) 474-6400, email: [email protected] 4. COSTS: Data, views or arguments may be submitted to: Peg Rivers, State Educa- (a) Costs to State government. This amendment will not impose any ad- tion Department, Office of Higher Education, Room 979 EBA, 89 ditional costs on State government over and above the current costs for ac- Washington Ave., Albany, NY 12234, (518) 486-3633, email: crediting institutions pursuant to Subpart 4-1 of the Rules of the Board of [email protected] Regents. The Department will use existing personnel and resources to Public comment will be received until: 45 days after publication of this review institutions for accreditation under this Subpart. notice. (b) Costs to local government. None. (c) Costs to private regulated parties. The proposed amendment requires Regulatory Impact Statement institutions seeking or maintaining accreditation by the Board of Regents 1. STATUTORY AUTHORITY: to archive all print and online catalogs annually and to retain all archived Section 207 of the Education Law grants general rule-making authority copies permanently. The Department believes that currently accredited to the Board of Regents to carry into effect the laws and policies of the institutions are already performing these tasks and, therefore, there will be State relating to education. no additional cost to the institution. The other requirements of the Section 210 of the Education Law grants to the Board of Regents the proposed amendment will not impose additional costs on institutions of authority to register domestic and foreign institutions in terms of New higher education. York standards. (d) Costs to the regulatory agency. As stated above under Costs to State Section 214 of the Education Law provides that higher educational Government, the proposed amendment would not impose additional costs institutions that are incorporated in New York State shall be members of on the State Education Department. The University of the State of New York. 5. LOCAL GOVERNMENT MANDATES: Section 215 of the Education Law authorizes the Commissioner of The proposed amendment concerns the institutional accreditation of Education to visit, examine, and inspect schools or institutions under the institutions of higher education. It does not impose any program, service, educational supervision of the State and require reports from such schools. duty, or responsibility on local governments. Subdivision (1) of section 305 of the Education Law empowers the 6. PAPERWORK: Commissioner of Education to enforce all laws relating to the educational The proposed amendment imposes minimal additional paperwork for system of the State and execute all educational policies determined by the institutions voluntarily applying to the Board of Regents and the Commis- Board of Regents. sioner of Education for institutional accreditation. Subdivision (2) of section 305 of the Education Law authorizes the Since the amendment proposes minimal reporting and recordkeeping Commissioner of Education to have general supervision over all schools requirements, the State Education Department expects that existing fac- and institutions subject to the Education Law. ulty and staff at colleges will have the necessary expertise to satisfy the 2. LEGISLATIVE OBJECTIVES: requirements of the proposed amendment as part of their ongoing The proposed amendment carries out the legislative objectives of the responsibilities. above-referenced statutes by clarifying existing standards and procedures 7. DUPLICATION: that must be met by institutions of higher education seeking voluntary ac- The standards and procedures for voluntary institutional accreditation creditation by the Board of Regents and the Commissioner of Education. build on requirements and standards for the registration of undergraduate 3. NEEDS AND BENEFITS: and graduate programs set forth in Part 52 of the Regulations of the Com- Institutional accreditation is distinct from the Regents authority to au- missioner of Education. In some cases, additional requirements are thorize colleges and register programs of study. All New York degree- imposed for accreditation but these standards do not conflict with program granting institutions must be authorized by the Regents to operate as a col- registration standards. lege or university. The Department also reviews and registers individual 8. ALTERNATIVES: credit-bearing programs according to the standards prescribed in the Com- There are no viable alternatives to the proposed amendment, and none missioner’s Regulations. Together, the Regents approval to confer degrees were considered. and Department program registration make up the State authorization 9. FEDERAL STANDARDS: process. The proposed amendment is consistent with Federal requirements, The U.S. Department of Education also requires institutions to be ac- which specify subject categories for which an accrediting agency, ap- credited to receive Title IV funding. This process was established to ensure proved by U.S. Secretary of Education, must have standards and proce- that financial aid funds are distributed only to institutions that meet a com- dures for the accreditation of higher education institutions, and the require- mon set of standards. Institutional accreditation entails a complete review ment of periodic review of the standards by the accrediting agency. of the entire college or university and its ability to meet standards defined 10. COMPLIANCE SCHEDULE: by the U.S. Department of Education (USDE) to ensure the sound invest- The amendment would be effective on its stated effective date. ment of financial aid funds and the quality of the student’s education. It requires a thorough self-examination by the institution and a peer review Regulatory Flexibility Analysis on-site visit that is intended to identify areas where improvement may be The proposed amendment clarifies existing standards and procedures that needed and support an institution's compliance with accreditation must be met by institutions of higher education seeking voluntary ac- standards. creditation by the Board of Regents and the Commissioner of Education The ability to serve as an accrediting agency is granted by USDE. The and therefore does not have any adverse economic impact or impose any Regents and Commissioner are the only state agency authorized by USDE compliance requirements on small businesses or local governments.

40 NYS Register/December 9, 2015 Rule Making Activities

Because it is evident from the nature of the proposed amendment that it rules and regulations adopted by the Superintendent, the legislature will have no impact on small businesses or local governments, no further intended to help ensure that servicers conduct their business in a manner steps were needed to ascertain that fact and none were taken. Accordingly, acceptable to the Department. However, since the passage of the Mortgage a regulatory flexibility analysis is not required and one has not been Lending Reform Law, foreclosures continue to pose a significant threat to prepared. New York homeowners. The Department continues to receive complaints Rural Area Flexibility Analysis from homeowners and housing advocates that mortgage loan servicers’ re- 1. Types and estimate of number of rural areas: sponse to delinquencies and their efforts at loss mitigation are inadequate. The proposed amendment clarifies existing standards and procedures These rules are intended to provide clear guidance to mortgage loan that must be met by institutions of higher education seeking voluntary ac- servicers as to the procedures and standards they should follow with re- creditation by the Board of Regents and the Commissioner of Education. spect to loan delinquencies. The rules impose a duty of fair dealing on 2. Reporting, recordkeeping, and other compliance requirements and loan servicers in their communications, transactions and other dealings professional services: with borrowers. In addition, the rule sets standards with respect to the The proposed amendment will not establish additional reporting or handling of loan delinquencies and loss mitigation. The rule further recordkeeping requirements. The proposed amendment will not require requires specific reporting on the status of delinquent loans with the regulated parties, including those located in rural areas, to hire profes- Department so that it has the information necessary to assess loan sional services in order to comply. servicers’ performance. 3. Costs: In addition to addressing the pressing issue of mortgage loan delinquen- The amendment will not impose additional costs on regulated parties, cies and loss mitigation, the rule addresses other areas of significant including those located in rural areas of New York State. The proposed concern to homeowners, including the handling of borrower complaints amendment will not increase costs, and may provide cost-savings to and inquiries, the payment of taxes and insurance, crediting of payments regulated parties. and handling of late payments, payoff balances and servicer fees. The rule 4. Minimizing adverse impact: also sets forth prohibited practices such as engaging in deceptive practices The proposed amendment clarifies existing standards and procedures or placing homeowners’ insurance on property when the servicers has rea- that must be met by institutions of higher education seeking voluntary ac- son to know that the homeowner has an effective policy for such insurance. creditation by the Board of Regents and the Commissioner of Education. Subject: Business conduct of mortgage loan servicers. Accordingly, it is neither appropriate nor warranted to establish different Purpose: To implement the purpose and provisions of the Mortgage Lend- requirements for entities located in rural areas. Because of the nature of ing Reform Law of 2008 with respect to mortgage loan servicers. the proposed rule, alternative approaches for rural areas were not Substance of emergency rule: Section 419.1 contains definitions of terms considered. that are used in Part 419 and not otherwise defined in Part 418, including 5. Rural area participation: “Servicer”, “Qualified Written Request” and “Loan Modification”. The State Education Department has sent the proposed amendment to Section 419.2 establishes a duty of fair dealing for Servicers in connec- the Rural Advisory Committee for comment, which has members who tion with their transactions with borrowers, which includes a duty to live or work in rural areas across the State. pursue loss mitigation with the borrower as set forth in Section 419.11. Job Impact Statement Section 419.3 requires compliance with other State and Federal laws re- The proposed amendment clarifies existing standards and procedures that lating to mortgage loan servicing, including Banking Law Article 12-D, must be met by institutions of higher education seeking voluntary ac- RESPA, and the Truth-in-Lending Act. creditation by the Board of Regents and the Commissioner of Education. Section 419.4 describes the requirements and procedures for handling The State Education Department expects that the proposed amendment to consumer complaints and inquiries. will not have a negative impact on the number of jobs or employment op- Section 419.5 describes the requirements for a servicer making pay- portunities at higher education institutions or in any other field, and that ments of taxes or insurance premiums for borrowers. higher education institutions will use existing staff to satisfy accreditation Section 419.6 describes requirements for crediting payments from bor- requirements as part of their on-going responsibilities. Therefore, the rowers and handling late payments. amendment will have no impact on jobs or employment opportunities at Section 419.7 describes the requirements of an annual account statement which must be provided to borrowers in plain language showing the these institutions. Because it is evident from the nature of the proposed unpaid principal balance at the end of the preceding 12-month period, the amendment that it will have no impact on jobs and employment opportuni- interest paid during that period and the amounts deposited into and ties, no further steps were needed to ascertain these facts and none were disbursed from escrow. The section also describes the Servicer’s obliga- taken. Accordingly, a job impact statement was not required and one was tions with respect to providing a payment history when requested by the not prepared. borrower or borrower’s representative. Section 419.8 requires a late payment notice be sent to a borrower no later than 17 days after the payment remains unpaid. Section 419.9 describes the required provision of a payoff statement Department of Financial Services that contains a clear, understandable and accurate statement of the total amount that is required to pay off the mortgage loan as of a specified date. Section 419.10 sets forth the requirements relating to fees permitted to EMERGENCY be collected by Servicers and also requires Servicers to maintain and update at least semi-annually a schedule of standard or common fees on RULE MAKING their website. Section 419.11 sets forth the Servicer’s obligations with respect to Business Conduct of Mortgage Loan Servicers handling of loan delinquencies and loss mitigation, including an obligation to make reasonable and good faith efforts to pursue appropriate loss I.D. No. DFS-49-15-00012-E mitigation options, including loan modifications. This Section includes Filing No. 1022 requirements relating to procedures and protocols for handling loss miti- Filing Date: 2015-11-24 gation, providing borrowers with information regarding the Servicer’s loss mitigation process, decision-making and available counseling Effective Date: 2015-11-26 programs and resources. Section 419.12 describes the quarterly reports that the Superintendent PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- may require Servicers to submit to the Superintendent, including informa- cedure Act, NOTICE is hereby given of the following action: tion relating to the aggregate number of mortgages serviced by the Action taken: Addition of Part 419 to Title 3 NYCRR. Servicer, the number of mortgages in default, information relating to loss mitigation activities, and information relating to mortgage modifications. Statutory authority: Banking Law, art. 12-D Section 419.13 describes the books and records that Servicers are Finding of necessity for emergency rule: Preservation of general welfare. required to maintain as well as other reports the Superintendent may Specific reasons underlying the finding of necessity: The legislature require Servicers to file in order to determine whether the Servicer is required the registration of mortgage loan servicers as part of the Mortgage complying with applicable laws and regulations. These include books and Lending Reform Law of 2008 (Ch. 472, Laws of 2008, hereinafter, the records regarding loan payments received, communications with borrow- “Mortgage Lending Reform Law”) to help address the existing foreclo- ers, financial reports and audited financial statements. sure crisis in the state. By registering servicers and requiring that servicers Section 419.14 sets forth the activities prohibited by the regulation, engage in the business of mortgage loan servicing in compliance with including engaging in misrepresentations or material omissions and plac-

41 Rule Making Activities NYS Register/December 9, 2015 ing insurance on a mortgage property without written notice when the of a law, regulation or order. (Paragraph (a) of Subdivision (1) of Section Servicer has reason to know the homeowner has an effective policy in 44). place. The fee amounts for mortgage loan servicer registration and branch ap- This notice is intended to serve only as a notice of emergency adoption. plications are established in accordance with Banking Law Section 18-a. This agency intends to adopt this emergency rule as a permanent rule and 2. Legislative Objectives. will publish a notice of proposed rule making in the State Register at some The Mortgage Lending Reform Law was intended to address various future date. The emergency rule will expire February 21, 2016. problems related to residential mortgage loans in this State. The law reflects the view of the Legislature that consumers would be better Text of rule and any required statements and analyses may be obtained protected by the supervision of mortgage loan servicing. Even though from: Hadas A. Jacobi, NYS Department of Financial Services, 1 State mortgage loan servicers perform a central function in the mortgage Street, New York, NY 10004, (212) 480-5890, email: industry, there had previously been no general regulation of servicers by [email protected] the state or the Federal government. Regulatory Impact Statement The Mortgage Lending Reform Law requires that entities be registered 1. Statutory Authority. with the Superintendent in order to engage in the business of servicing Article 12-D of the Banking Law, as amended by the Legislature in the mortgage loans in this state. The new law further requires mortgage loan Mortgage Lending Reform Law of 2008 (Ch. 472, Laws of 2008, herein- servicers to engage in the business of servicing mortgage loans in after, the “Mortgage Lending Reform Law”), creates a framework for the conformity with the rules and regulations promulgated by the Banking regulation of mortgage loan servicers. Mortgage loan servicers are Board and the Superintendent. individuals or entities which engage in the business of servicing mortgage The mortgage servicing statute has two main components: (i) the first loans for residential real property located in New York. That legislation component addresses the registration requirement for persons engaged in also authorizes the adoption of regulations implementing its provisions. the business of servicing mortgage loans; and (ii) the second authorizes (See, e.g., Banking Law Sections 590(2) (b-1) and 595-b.) the Superintendent to promulgate appropriate rules and regulations for the Subsection (1) of Section 590 of the Banking Law was amended by the regulation of servicers in this state. Mortgage Lending Reform Law to add the definitions of “mortgage loan Part 418 of the Superintendent’s Regulations, initially adopted on an servicer” and “servicing mortgage loans”. (Section 590(1)(h) and Section emergency basis on July 1 2009, addresses the first component of the 590(1)(i).) mortgage servicing statute by setting standards and procedures for ap- A new paragraph (b-1) was added to Subdivision (2) of Section 590 of plications for registration as a mortgage loan servicer, for approving and the Banking Law. This new paragraph prohibits a person or entity from denying applications to be registered as a mortgage loan servicer, for ap- engaging in the business of servicing mortgage loans without first being proving changes of control, for suspending, terminating or revoking the registered with the Superintendent. The registration requirements do not registration of a mortgage loan servicer as well as setting financial apply to an “exempt organization,” licensed mortgage banker or registered responsibility standards for mortgage loan servicers. mortgage broker. Part 419 addresses the business practices of mortgage loan servicers in This new paragraph also authorizes the Superintendent to refuse to reg- connection with their servicing of residential mortgage loans. This part ister an MLS on the same grounds as he or she may refuse to register a addresses the obligations of mortgage loan servicers in their communica- mortgage broker under Banking Law Section 592-a(2). tions, transactions and general dealings with borrowers, including the Subsection (3) of Section 590 was amended by the Subprime Law to handling of consumer complaints and inquiries, handling of escrow pay- clarify the power of the banking board to promulgate rules and regulations ments, crediting of payments, charging of fees, loss mitigation procedures and to extend the rulemaking authority regarding regulations for the and provision of payment histories and payoff statements. This part also protection of consumers and regulations to define improper or fraudulent imposes certain recordkeeping and reporting requirements in order to en- business practices to cover mortgage loan servicers, as well as mortgage able the Superintendent to monitor services’ conduct and prohibits certain bankers, mortgage brokers and exempt organizations. The functions and practices such as engaging in deceptive business practices. powers of the banking board have since been transferred to the Superin- Collectively, the provisions of Part 418 and 419 implement the intent of tendent of Financial Services, pursuant to Part A of Chapter 62 of the the Legislature to register and supervise mortgage loan servicers. Laws of 2011, Section 89. 3. Needs and Benefits. New Paragraph (d) was added to Subsection (5) of Section 590 by the The Mortgage Lending Reform Law adopted a multifaceted approach Mortgage Lending Reform Law and requires mortgage loan servicers to to the lack of supervision of the mortgage loan industry, particularly with engage in the servicing business in conformity with the Banking Law, respect to servicing and foreclosure. It addressed a variety of areas in the such rules and regulations as may be promulgated by the Banking Board residential mortgage loan industry, including: i. loan originations; ii. loan or prescribed by the Superintendent, and all applicable federal laws, rules foreclosures; and iii. the conduct of business by residential mortgage loans and regulations. servicers. New Subsection (1) of Section 595-b was added by the Mortgage Lend- Until July 1, 2009, when the mortgage loan servicer registration provi- ing Reform Law and requires the Superintendent to promulgate regula- sions first became effective, the Department regulated the brokering and tions and policies governing the grounds to impose a fine or penalty with making of mortgage loans, but not the servicing of these mortgage loans. respect to the activities of a mortgage loan servicer. Also, the Mortgage Servicing is vital part of the residential mortgage loan industry; it involves Lending Reform Law amends the penalty provision of Subdivision (1) of the collection of mortgage payments from borrowers and remittance of the Section 598 to apply to mortgage loan servicers as well as to other entities. same to owners of mortgage loans; to governmental agencies for taxes; New Subdivision (2) of Section 595-b was added by the Mortgage and to insurance companies for insurance premiums. Mortgage servicers Lending Reform Law and authorizes the Superintendent to prescribe also act as agents for owners of mortgages in negotiations relating to loss regulations relating to disclosure to borrowers of interest rate resets, mitigation when a mortgage becomes delinquent. As “middlemen,” more- requirements for providing payoff statements, and governing the timing of over, servicers also play an important role when a property is foreclosed crediting of payments made by the borrower. upon. For example, the servicer may typically act on behalf of the owner Section 596 was amended by the Mortgage Lending Reform Law to of the loan in the foreclosure proceeding. extend the Superintendent’s examination authority over licensees and Further, unlike in the case of a mortgage broker or a mortgage lender, registrants to cover mortgage loan servicers. The provisions of Banking borrowers cannot “shop around” for loan servicers, and generally have no Law Section 36(10) making examination reports confidential are also input in deciding what company services their loans. The absence of the extended to cover mortgage loan servicers. ability to select a servicer obviously raises concerns over the character and Similarly, the books and records requirements in Section 597 covering viability of these entities given the central part of they play in the mortgage licensees, registrants and exempt organizations were amended by the industry. There also is evidence that some servicers may have provided Mortgage Lending Reform Law to cover servicers and a provision was poor customer service. Specific examples of these activities include: added authorizing the Superintendent to require that servicers file annual pyramiding late fees; misapplying escrow payments; imposing illegal reports or other regular or special reports. prepayment penalties; not providing timely and clear information to bor- The power of the Superintendent to require regulated entities to appear rowers; erroneously force-placing insurance when borrowers already have and explain apparent violations of law and regulations was extended by insurance; and failing to engage in prompt and appropriate loss mitigation the Mortgage Lending Reform Law to cover mortgage loan servicers efforts. (Subdivision (1) of Section 39), as was the power to order the discontinu- More than 2,000,000 loans on residential one-to-four family properties ance of unauthorized or unsafe practices (Subdivision (2) of Section 39) are being serviced in New York. Of these over 9% were seriously delin- and to order that accounts be kept in a prescribed manner (Subdivision (5) quent as of the first quarter of 2012. Despite various initiatives adopted at of Section 39). the state level and the creation of federal programs such as Making Home Finally, mortgage loan servicers were added to the list of entities subject Affordable to encourage loan modifications and help at risk homeowners, to the Superintendent’s power to impose monetary penalties for violations the number of loans modified, have not kept pace with the number of

42 NYS Register/December 9, 2015 Rule Making Activities foreclosures. Foreclosures impose costs not only on borrowers and lenders 5. Local Government Mandates. but also on neighboring homeowners, cities and towns. They drive down None. home prices, diminish tax revenues and have adverse social consequences 6. Paperwork. and costs. Part 419 requires mortgage loan servicers to keep books and records re- As noted above, Part 418, initially adopted on an emergency basis on lated to its servicing for a period of three years and to produce quarterly July 1 2009, relates to the first component of the mortgage servicing stat- reports and financial statements as well as annual and other reports ute – the registration of mortgage loan servicers. It was intended to ensure requested by the Superintendent. It is anticipated that the quarterly report- that only those persons and entities with adequate financial support and ing relating to mortgage loan servicing will be done electronically and sound character and general fitness will be permitted to register as would therefore be virtually paperless. The other recordkeeping and mortgage loan servicers. It also provided for the suspension, revocation reporting requirements are consistent with standards generally required of and termination of licensees involved in wrongdoing and establishes min- mortgage bankers and brokers and other regulated financial services imum financial standards for mortgage loan servicers. entities. Part 419 addresses the business practices of mortgage loan servicers 7. Duplication. and establishes certain consumer protections for homeowners whose resi- The regulation does not duplicate, overlap or conflict with any other dential mortgage loans are being serviced. These regulations provide stan- regulations. The various federal laws that touch upon aspects of mortgage dards and procedures for servicers to follow in their course of dealings loan servicing are noted in Section 9 “Federal Standards” below. with borrowers, including the handling of borrower complaints and in- 8. Alternatives. quiries, payment of taxes and insurance premiums, crediting of borrower The Mortgage Lending Reform Law required the registration of payments, provision of annual statements of the borrower’s account, au- mortgage loan servicers and empowered the Superintendent to prescribe thorized fees, late charges and handling of loan delinquencies and loss rules and regulations to guide the business of mortgage servicing. The mitigation. Part 419 also identifies practices that are prohibited and purpose of the regulation is to carry out this statutory mandate to register imposes certain reporting and record-keeping requirements to enable the mortgage loan servicers and regulate the manner in which they conduct Superintendent to determine the servicer’s compliance with applicable business. The Department circulated a proposed draft of Part 419 and laws, its financial condition and the status of its servicing portfolio. received comments from and met with industry and consumer groups. The Since the adoption of Part 418, 67 entities have been approved for current Part 419 reflects the input received. The alternative to these regula- registration or have pending applications and nearly 400 entities have tions is to do nothing or to wait for the newly created federal bureau of indicated that they are a mortgage banker, broker, bank or other organiza- consumer protection to promulgate national rules, which could take years, tion exempt from the registration requirements. may not happen at all or may not address all the practices covered by the All Exempt Organizations, mortgage bankers and mortgage brokers rule. Thus, neither of those alternatives would effectuate the intent of the that perform mortgage loan servicing with respect to New York mortgages legislature to address the current foreclosure crisis, help at-risk homeown- must notify the Superintendent that they do so, and are required to comply ers vis-à-vis their loan servicers and ensure that mortgage loan servicers with the conduct of business and consumer protection rules applicable to engage in fair and appropriate servicing practices. mortgage loan servicers. 9. Federal Standards. These regulations will improve accountability and the quality of service Currently, mortgage loan servicers are not required to be registered by in the mortgage loan industry and will help promote alternatives to fore- any federal agencies, and there are no comprehensive federal rules govern- closure in the state. ing mortgage loan servicing. Federal laws such as the Real Estate Settle- 4. Costs. ment Procedures Act of 1974, 12 U.S.C. § 2601 et seq. and regulations The requirements of Part 419 do not impose any direct costs on adopted thereunder, 24 C.F.R. Part 3500, and the Truth-in-Lending Act, mortgage loan servicers. Although mortgage loan servicers may incur 15 U.S.C. section 1600 et seq. and Regulation Z adopted thereunder, 12 some additional costs as a result of complying with Part 419, the over- C.F.R. section 226 et seq., govern some aspects of mortgage loan servic- whelming majority of mortgage loan servicers are banks, operating sub- ing, and there have been some recent amendments to those laws and sidiaries or affiliates of banks, large independent servicers or other regulations regarding mortgage loan servicing. For example, Regulation financial services entities that service millions, and even billions, of dol- Z, 12 C.F.R. section 226.36(c), was recently amended to address the credit- lars in loans and have the experience, resources and systems to comply ing of payments, imposition of late charges and the provision of payoff with these requirements. Moreover, any additional costs are likely to be statements. In addition, the recently enacted Dodd-Frank Wall Street mitigated by the fact that many of the requirements of Part 419, including Reform and Protection Act of 2010 (Dodd-Frank Act) establishes require- those relating to the handling of residential mortgage delinquencies and ments for the handling of escrow accounts, obtaining force-placed insur- loss mitigation (419.11) and quarterly reporting (419.12), are consistent ance, responding to borrower requests and providing information related with or substantially similar to standards found in other federal or state to the owner of the loan. laws, federal mortgage modification programs or servicers own protocols. Additionally, the newly created Bureau of Consumer Financial Protec- For example, Fannie Mae and Freddie Mac, which own or insure ap- tion established by the Dodd-Frank Act may soon propose additional proximately 90% of the nation’s securitized mortgage loans, have similar regulations for mortgage loan servicers. guidelines governing various aspects of mortgage servicing, including 10. Compliance Schedule. handling of loan delinquencies. In addition, over 100 mortgage loan Similar emergency regulations first became effective on October 1, servicers participate in the federal Making Home Affordable (MHA) 2010. program which requires adherence to standards for handling of loan Regulatory Flexibility Analysis delinquencies and loss mitigation similar to those contained in these 1. Effect of the Rule: regulations. Those servicers not participating in MHA have, for the most The rule will not have any impact on local governments. The Mortgage part, adopted programs which parallel many components of MHA. Lending Reform Law of 2008 (Ch. 472, Laws of 2008, hereinafter, the Reporting on loan delinquencies and loss mitigation has likewise “Mortgage Lending Reform Law”) requires all mortgage loan servicers, become increasingly common. The OCC publish quarterly reports on whether registered or exempt from registration under the law, to service credit performance, loss mitigation efforts and foreclosures based on data mortgage loans in accordance with the rules and regulations promulgated provided by national banks and thrifts. And, states such as Maryland and by the Banking Board or Superintendent. The functions and powers of the North Carolina have adopted similar reporting requirements to those Banking Board have since been transferred to the Superintendent of contained in section 419.12. Financial Services, pursuant to Part A of Chapter 62 of the Laws of 2011, Many of the other requirements of Part 419 such as those related to Section 89. Of the 67 entities which have been approved for registration or handling of taxes, insurance and escrow payments, collection of late fees have pending applications and the nearly 400 entities which have indicated and charges, crediting of payments derive from federal or state laws and that they are exempt from the registration requirements, it is estimated that reflect best industry practices. The periodic reporting and bookkeeping very few are small businesses. and record keeping requirements are also standard among financial ser- 2. Compliance Requirements: vices businesses, including mortgage bankers and brokers (see, for The provisions of the Mortgage Lending Reform Law relating to example section 410 of the Superintendent’s Regulations). mortgage loan servicers has two main components: it requires the registra- The ability by the Department to regulate mortgage loan servicers is tion by the Department of servicers who are not a bank, mortgage banker, expected to reduce costs associated with responding to consumers’ mortgage broker or other exempt organizations (the “MLS Registration complaints, decrease unnecessary expenses borne by mortgagors, and Regulations”) , and it authorizes the Department to promulgate rules and should assist in decreasing the number of foreclosures in this state. regulations that are necessary and appropriate for the protection of The regulations will not result in any fiscal implications to the State. consumers, to define improper or fraudulent business practices, or The Department is funded by the regulated financial services industry. otherwise appropriate for the effective administration of the provisions of Fees charged to the industry will be adjusted periodically to cover Depart- the Mortgage Lending Reform Law relating to mortgage loan servicers ment expenses incurred in carrying out this regulatory responsibility. (the “Mortgage Loan Servicer Business Conduct Regulations”).

43 Rule Making Activities NYS Register/December 9, 2015

The provisions of the Mortgage Lending Reform Law requiring Rural Area Flexibility Analysis registration of mortgage loan servicers which are not mortgage bankers, Types and Estimated Numbers: Since the adoption of the Mortgage mortgage brokers or exempt organizations became effective on July 1, Lending Reform Law of 2008 (Ch. 472, Laws of 2008, hereinafter, the 2009. Part 418 of the Superintendent’s Regulations, initially adopted on “Mortgage Lending Reform Law”), which required mortgage loan an emergency basis on July 1 2009, sets for the standards and procedures servicers to be registered with the Department unless exempted under the for applications for registration as a mortgage loan servicer, for approving law, 67 entities have pending applications or have been approved for and denying applications to be registered as a mortgage loan servicer, for registration and nearly 400 entities have indicated that they are a mortgage approving changes of control, for suspending, terminating or revoking the banker, broker, bank or other organization exempt from the registration registration of a mortgage loan servicer as well as the financial responsibil- requirements. Only one of the non-exempt entities applying for registra- ity standards for mortgage loan servicers. tion is located in New York and operating in a rural area. Of the exempt Part 419 implements the provisions of the Mortgage Lending Reform organizations, all of which are required to comply with the conduct of Law by setting the standards by which mortgage loan servicers conduct business contained in Part 419, approximately 400 are located in New the business of mortgage loan servicing. The rule sets the standards for York, including several in rural areas. However, the overwhelming major- handling complaints, payments of taxes and insurance, crediting of bor- ity of exempt organizations, regardless of where located, are banks or rower payments, late payments, account statements, delinquencies and credit unions that are already regulated and are thus familiar with comply- loss mitigation, fees and recordkeeping. ing with the types of requirements contained in this regulation. Compliance Requirements: The provisions of the Mortgage Lending 3. Professional Services: Reform Law relating to mortgage loan servicers has two main components: None. it requires the registration by the Department of servicers that are not a 4. Compliance Costs: bank, mortgage banker, mortgage broker or other exempt organization The requirements of Part 419 do not impose any direct costs on (the “MLS Registration Regulations”) , and it authorizes the Department mortgage loan servicers. Although mortgage loan servicers may incur to promulgate rules and regulations that are necessary and appropriate for some additional costs as a result of complying with Part 419, the over- the protection of consumers, to define improper or fraudulent business whelming majority of mortgage loan servicers are banks, operating sub- practices, or otherwise appropriate for the effective administration of the sidiaries or affiliates of banks, large independent servicers or other provisions of the Mortgage Lending Reform Law relating to mortgage financial services entities that service millions, and even billions, of dol- loan servicers (the “MLS Business Conduct Regulations”). lars in loans and have the experience, resources and systems to comply The provisions of the Mortgage Lending Reform Law of 2008 requiring with these requirements. Moreover, any additional costs are likely to be registration of mortgage loan servicers which are not mortgage bankers, mitigated by the fact that many of the requirements of Part 419, including mortgage brokers or exempt organizations became effective on July 1, those relating to the handling of residential mortgage delinquencies and 2009. Part 418 of the Superintendent’s Regulations, initially adopted on loss mitigation (419.11) and quarterly reporting (419.12), are consistent an emergency basis on July 1, 2010, sets forth the standards and procedures with or substantially similar to standards found in other federal or state for applications for registration as a mortgage loan servicer, for approving laws, federal mortgage modification programs or servicers own protocols. and denying applications to be registered as a mortgage loan servicer, for For example, Fannie Mae and Freddie Mac, which own or insure ap- approving changes of control, for suspending, terminating or revoking the proximately 90% of the nation’s securitized mortgage loans, have similar registration of a mortgage loan servicer as well as the financial responsibil- guidelines governing various aspects of mortgage servicing, including ity standards for mortgage loan servicers. handling of loan delinquencies. In addition, over 100 mortgage loan Part 419 implements the provisions of the Mortgage Lending Reform servicers participate in the federal Making Home Affordable (MHA) Law of 2008 by setting the standards by which mortgage loan servicers program which requires adherence to standards for handling of loan conduct the business of mortgage loan servicing. The rule sets the stan- delinquencies and loss mitigation similar to those contained in these dards for handling complaints, payments of taxes and insurance, crediting regulations. Those servicers not participating in MHA have, for the most borrower payments, late payments, account statements, delinquencies and part, adopted programs which parallel many components of MHA. loss mitigation and fees. This part also imposes certain recordkeeping and Reporting on loan delinquencies and loss mitigation has likewise reporting requirements in order to enable the Superintendent to monitor become increasingly common. The OCC publishes quarterly reports on services’ conduct and prohibits certain practices such as engaging in credit performance, loss mitigation efforts and foreclosures based on data deceptive business practices. provided by national banks and thrifts. And, states such as Maryland and Costs: The requirements of Part 419 do not impose any direct costs on North Carolina have adopted similar reporting requirements to those mortgage loan servicers. The periodic reporting requirements of Part 419 contained in section 419.12. are consistent with those imposed on other regulated entities. In addition, Many of the other requirements of Part 419 such as those related to many of the other requirements of Part 419, such as those related to the handling of taxes, insurance and escrow payments, collection of late fees handling of loan delinquencies, taxes, insurance and escrow payments, and charges, crediting of payments derive from federal or state laws and collection of late fees and charges and crediting of payments, derive from reflect best industry practices. The periodic reporting and bookkeeping federal or state laws, current federal loan modification programs, servic- and record keeping requirements are also standard among financial ser- ing guidelines utilized by Fannie Mae and Freddie Mac or servicers’ own vices businesses, including mortgage bankers and brokers (see, for protocols. Although mortgage loan servicers may incur some additional example section 410 of the Superintendent’s Regulations). costs as a result of complying with Part 419, the overwhelming majority Compliance with the rule should improve the servicing of residential of mortgage loan servicers are banks, credit unions, operating subsidiaries mortgage loans in New York, including the handling of mortgage or affiliates of banks, large independent servicers or other financial ser- delinquencies, help prevent unnecessary foreclosures and reduce consumer vices entities that service millions, and even billions, of dollars in loans complaints regarding the servicing of residential mortgage loans. and have the experience, resources and systems to comply with these 5. Economic and Technological Feasibility: requirements. Of the 67 entities that have been approved for registration For the reasons noted in Section 4 above, the rule should impose no or that have pending applications, only one is located in a rural area of adverse economic or technological burden on mortgage loan servicers that New York State. Of the few exempt organizations located in rural areas of are small businesses. New York, virtually all are banks or credit unions. Moreover, compliance 6. Minimizing Adverse Impacts: with the rule should improve the servicing of residential mortgage loans in As noted in Section 1 above, most servicers are not small businesses. New York, including the handling of mortgage delinquencies, help prevent Many of the requirements contained in the rule derive from federal or state unnecessary foreclosures and reduce consumer complaints regarding the laws, existing servicer guidelines utilized by Fannie Mae and Freddie Mac servicing of residential mortgage loans. and best industry practices. Minimizing Adverse Impacts: As noted in the “Costs” section above, Moreover, the ability by the Department to regulate mortgage loan while mortgage loan servicers may incur some higher costs as a result of servicers is expected to reduce costs associated with responding to complying with the rules, the Department does not believe that the rule consumers’ complaints, decrease unnecessary expenses borne by mortgag- will impose any meaningful adverse economic impact upon private or ors, help borrowers at risk of foreclosure and decrease the number of public entities in rural areas. In addition, it should be noted that Part 418, foreclosures in this state. which establishes the application and financial requirements for mortgage 7. Small Business and Local Government Participation: loan servicers, authorizes the Superintendent to reduce or waive the The Department distributed a draft of proposed Part 419 to industry otherwise applicable financial responsibility requirements in the case of representatives, received industry comments on the proposed rule and met mortgage loans servicers that service not more than 12 mortgage loans or with industry representatives in person. The Department likewise distrib- more than $5,000,000 in aggregate mortgage loans in New York and which uted a draft of proposed Part 419 to consumer groups, received their com- do not collect tax or insurance payments. The Superintendent is also au- ments on the proposed rule and met with consumer representatives to thorized to reduce or waive the financial responsibility requirements in discuss the proposed rule in person. The rule reflects the input received other cases for good cause. The Department believes that this will from both industry and consumer groups. ameliorate any burden on mortgage loan servicers operating in rural areas.

44 NYS Register/December 9, 2015 Rule Making Activities

Rural Area Participation: The Department issued a draft of Part 419 in Assessment of Public Comment December 2009 and held meetings with and received comments from The Commission received two public comments, both in support of the industry and consumer groups following the release of the draft rule. The rule. One was from the Empire State Harness Horsemen’s Alliance, an or- Department also maintains continuous contact with large segments of the ganization comprising Standardbred horsemen’s associations throughout servicing industry though its regulation of mortgage bankers and brokers New York, which stated that the proposed rule would assist the promotion and its work in the area of foreclosure prevention. The Department of Standardbred breeding in New York. A stable owner in western New likewise maintains close contact with a variety of consumer groups York stated that the rule proposal would increase opportunities for New through its community outreach programs and foreclosure mitigation programs. The Department has utilized this knowledge base in drafting York-bred Standardbred horses to race in New York. the regulation. Job Impact Statement Article 12-D of the Banking Law, as amended by the Mortgage Lend- ing Reform Law (Ch. 472, Laws of 2008), requires persons and entities Department of Law which engage in the business of servicing mortgage loans after July 1, 2009 to be registered with the Superintendent. Part 418 of the Superinte- ndent’s Regulations, initially adopted on an emergency basis on July 1, PROPOSED RULE MAKING 2009, sets forth the application, exemption and approval procedures for registration as a mortgage loan servicer, as well as financial responsibility NO HEARING(S) SCHEDULED requirements for applicants, registrants and exempted persons. Part 419 addresses the business practices of mortgage loan servicers in Disclosure Requirements for Condominium Offerors Renting, connection with their servicing of residential mortgage loans. Thus, this Rather Than Selling, Unsold Condominium Units part addresses the obligations of mortgage loan servicers in their com- I.D. No. LAW-49-15-00011-P munications, transactions and general dealings with borrowers, including the handling of consumer complaints and inquiries, handling of escrow payments, crediting of payments, charging of fees, loss mitigation PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- procedures and provision of payment histories and payoff statements. This cedure Act, NOTICE is hereby given of the following proposed rule: part also imposes certain recordkeeping and reporting requirements in or- Proposed Action: Addition of section 20.1(c)(8); and amendment of sec- der to enable the Superintendent to monitor services’ conduct and prohibits tion 20.3(c)(1), (d)(4), (n)(1) and (t)(1) of Title 13 NYCRR. certain practices such as engaging in deceptive business practices. Statutory authority: General Business Law, section 352-e(6) Compliance with Part 419 is not expected to have a significant adverse effect on jobs or employment activities within the mortgage loan servicing Subject: Disclosure requirements for condominium offerors renting, rather industry. The vast majority of mortgage loan servicers are sophisticated than selling, unsold condominium units. financial entities that service millions, if not billions, of dollars in loans Purpose: To clarify a condominium offeror's disclosure obligations in a and have the experience, resources and systems to comply with the newly-constructed, vacant, or non-residential condominium. requirements of the rule. Moreover, many of the requirements of the rule Text of proposed rule: A new section 20.1(c)(8) is added to title 13 to reflect derive from federal or state laws and reflect existing best industry read as follows: practices. (8) Interim lessee means a purchaser under the plan who takes occupancy to his or her contracted-for unit prior to closing title. The rights and obligations of the interim lessee must be set forth in a writing exe- cuted by both sponsor and purchaser. New York State Gaming Section 20.3(c)(1) of title 13 is amended to read as follows: (1) Disclose whether sponsor is reserving the right to rent rather than Commission sell units after the plan has been consummated and whether sponsor is limiting its right to rent rather than sell after the plan has been consummated based on objective articulable criteria, such as a significant decline NOTICE OF ADOPTION in market prices of a specific percentage and the conditions upon which the sponsor would resume sales. If sponsor has obtained construction To Allow Harness Tracks to Run Races Solely for New York- financing, disclose the terms of the construction loan as they apply to the sponsor's obligation to market the units for sale, including any minimum Bred Horses and Provide That Conditions May be Written for number or percentage of units which must be under contract before the Such Races plan can be declared effective, the existence of either a minimum release I.D. No. SGC-40-15-00003-A price set by the lender or a required minimum payment per sale which must be made to the lender in order for the lender to release its lien from Filing No. 1021 the unit being sold, and limits or requirements imposed by the lender for Filing Date: 2015-11-24 sponsor to rent rather than sell under specified market conditions. If spon- Effective Date: 2015-12-09 sor is reserving an unconditional right to rent rather than sell, the cover of the plan must state in bold print: BECAUSE SPONSOR IS RETAINING THE UNCONDITIONAL PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- RIGHT TO RENT RATHER THAN SELL UNITS AFTER THE PLAN cedure Act, NOTICE is hereby given of the following action: HAS BEEN CONSUMMATED, THIS PLAN MAY NOT RESULT IN Action taken: Amendment of section 4108.8 of Title 9 NYCRR. THE CREATION OF A CONDOMINIUM IN WHICH A MAJORITY Statutory authority: Racing, Pari-Mutuel Wagering and Breeding Law, OF THE UNITS ARE OWNED BY OWNER-OCCUPANTS OR INVES- sections 103(2), 104(1), (19) and 307-a TORS UNRELATED TO THE SPONSOR. (SEE SPECIAL RISKS SEC- TION OF THE PLAN.) Subject: To allow harness tracks to run races solely for New York-bred Further disclose, in the Special Risks section, that because sponsor is horses and provide that conditions may be written for such races. not limiting the conditions under which it will rent rather than sell units af- Purpose: To conform current rules to new legislation allowing harness ter the plan has been consummated, there is no commitment to sell more tracks in New York to run races limited to New York bred horses. units than the 15 percent necessary to declare the plan effective and owner- Text or summary was published in the October 7, 2015 issue of the Reg- occupants may never gain effective control and management of the ister, I.D. No. SGC-40-15-00003-P. condominium. Final rule as compared with last published rule: No changes. Section 20.3(d)(4) of title 13 is amended to read as follows: (4) Disclose sponsor's intent with regard to the sale of units offered Text of rule and any required statements and analyses may be obtained for sale in the plan. Disclose whether sponsor represents that it will en- from: Kristen M. Buckley, New York State Gaming Commission, 1 deavor in good faith to sell units rather than rent after the plan has been Broadway Center, P.O. Box 7500, Schenectady, New York 12301, (518) consummated. If sponsor makes a bulk sale of all or some of its unsold 388-3407, email: [email protected] units, the transferee successor sponsor is bound by sponsor's representa- Initial Review of Rule tions regarding its commitment to sell units. If sponsor has obtained As a rule that does not require a RFA, RAFA or JIS, this rule will be construction financing, disclose the terms of the construction loan as they initially reviewed in the calendar year 2020, which is no later than the 5th apply to the sponsor's obligation to market the units for sale, including year after the year in which this rule is being adopted. any minimum number or percentage of units which must be under contract

45 Rule Making Activities NYS Register/December 9, 2015 before the plan can be declared effective, the existence of either a mini- cally, counsel for some condominium offerors have advanced a novel in- mum release price set by the lender or a required minimum payment per terpretation of the language as it presently exists: that it grants the offeror sale which must be made to the lender in order for the lender to release its permission to rent units in a newly-constructed or vacant building offer lien from the unit being sold, and limits or requirements imposed by the before the offering plan is consummated. Most troublingly, this interpreta- lender for sponsor to rent rather than sell under specified market tion recently has been proffered to create confusion about a building’s conditions. If sponsor has not obtained construction financing or if the legal status when the condominium offeror has neither consummated nor construction loan agreement does not include provisions on the terms set abandoned its offering plan, but instead operates the building as a rental forth in the previous sentence, disclose any conditions under which spon- property while obtaining certain legal, financial, and tax benefits (includ- sor reserves the right to rent rather than sell after the plan has been ing Real Property Tax Law Section 421-a benefits) intended only for consummated based on objective articulable criteria, such as a significant consummated condominiums. The Department of Law became particularly decline in market prices of a specific percentage and the conditions under aware of this problem during its investigation into compliance with the which sponsor would resume sales. If sponsor retains unconditional discre- rent-stabilization provisions of Real Property Tax Law Section 421-a. tion to rent rather than sell units after the plan has been consummated, Such a reading of these requirements is in conflict with G.B.L. Section include on the cover of the plan the warning set forth in section 20.3(c)(1) 352-e and 13 N.Y.C.R.R. Part 20, both of which require additional above and discuss as a special risk. disclosures and protections for tenants of an occupied residential rental Section 20.3(n)(1) of title 13 is amended to read as follows: building. See G.B.L. §§ 352-eeee(2); 352-eee(2); and 352-e(2-a)(b). In (1) State whether the owner of the building may rent any unit [that is addition, both G.B.L. Section 352-e and 13 N.Y.C.R.R. Part 20 contem- vacant before the closing] to a purchaser under the plan as an interim les- plate that a condominium offeror shall either consummate its public offer- see, including prior to consummation of the plan. ing, or, in certain circumstances, withdraw or abandon its offering plan. Section 20.3(t)(1) of title 13 is amended to read as follows: See 13 N.Y.C.R.R. §§ 20.1(l)(2) and 20.5(g). (1) Disclose sponsor's intent with regard to the sale of the units of- The Department of Law therefore proposes to modify the mandatory fered in Schedule A, including whether sponsor will endeavor in good disclosure language in its 13 N.Y.C.R.R. Part 20 regulations in order to: faith to sell all of the units in a reasonably timely manner. Disclose any (i) clarify what risk a purchaser assumes when reading the mandatory conditions under which sponsor retains the right to rent rather than sell af- disclosure language; (ii) advance the statutory objective of G.B.L. Section ter the plan has been consummated based on objective, articulable criteria, 352-e; (iii) reduce the potential for abuse stemming from a misinterpreta- such as a significant decline in market prices of a specific percentage and tion of the existing regulations’ purpose; (iv) clarify that only interim rent- the conditions under which sponsor would resume sales. Disclose any ing by a purchaser in contract is permitted in a newly-constructed or vacant obligations imposed on sponsor by the construction lender with regard to building offer before the offering plan is consummated, unless the offer- selling and/or renting units. If sponsor retains unconditional discretion to ing plan is abandoned; and (v) give greater effect to those other provisions rent rather than sell units after the plan has been consummated, include on in 13 N.Y.C.R.R. Part 20 which contemplate the eventual consummation, the cover of the plan the warning set forth in paragraph (c)(1) of this sec- withdrawal, or abandonment of an offering plan. tion and discuss as a special risk. 4. Costs. Text of proposed rule and any required statements and analyses may be (a) Costs to regulated parties. Under the proposed regulatory revisions, obtained from: Jacqueline Dischell, Department of Law, 120 Broadway, certain condominium offerors that may have misinterpreted the existing 23rd Floor, New York, NY 10271, (212) 416-8655, email: regulations to permit renting of residential units by non-interim lessees [email protected] prior to the time an offering plan is consummated would be required to file an amendment either: (i) amending and restating their offering plan to Data, views or arguments may be submitted to: Same as above. include the legally required disclosures and protections for tenants of an Public comment will be received until: 45 days after publication of this occupied residential rental building, (ii) withdrawing their offering plan, notice. or (iii) abandoning their offering plan. Such condominium offerors would Regulatory Impact Statement incur one-time costs associated with such a filing, including a $225.00 1. Statutory Authority. New York General Business Law (“G.B.L.”) amendment filing fee as prescribed by G.B.L. Section 352-e(7) and the Article 23-A regulates the advertisement, sale, purchase, and investment legal fees associated with preparing the amendment. advice given to securities and other investment vehicles, including real The proposed regulatory revisions do not prevent a condominium of- estate syndication offerings such as condominiums. See N.Y.S. C.L.S. feror who has not rented any residential units prior to consummation of G.B.L. §§ 352(1) and 352-e. G.B.L. Section 352-e(2-b) authorizes the the offering plan (other than to a purchaser in contract pursuant to the Department of Law to “adopt, promulgate, amend and rescind suitable terms of an interim lease or interim rental agreement) from consummating rules and regulations” to carry out the legislative mandates of G.B.L. Sec- the offering plan. Such offerors would not incur any additional costs as a tion 352-e. See also N.Y.S. C.L.S. G.B.L. § 352-e(6). result of the proposed regulatory revisions. 2. Legislative Objectives. G.B.L. Section 352-e(1) mandates that before (b) Costs to the agency, the state and local governments. The Depart- any person may engage in a public offering of cooperative interests in ment of Law believes that it may incur nominal administrative costs re- realty, including condominiums, he or she must file with the Department lated to processing amendments withdrawing or abandoning offering of Law an offering plan that contains “the detailed terms of the transac- plans. The Department of Law foresees no costs to any other state or local tion” and “such additional information…as will afford potential investors, governments. purchasers and participants and adequate basis upon which to found their (c) Information and methodology upon which the estimate is based. judgment.” Pursuant to this authority, the Department of Law’s governing The estimated costs to regulated parties, the agency, and state and local regulations, Part 20 of Title 13 of the New York Compilation of Codes, governments is based on the assessment of the Attorney General, in reli- Rules & Regulations (“N.Y.C.R.R.”), mandate that offerors of newly- ance upon data and information maintained by the Department of Law’s constructed, vacant, or non-residential condominiums disclose in their of- Real Estate Finance Bureau. fering plans if they are reserving a right to rent, rather than sell, units in a 5. Local government mandates. The proposed regulatory revisions do condominium, and certain risks to purchasers associated therewith. not impose any programs, services, duties, or responsibilities on any Because these risks can be substantial, the regulations specify both the county, city, town, village, school district, fire district, or other special form and content of these disclosures. See 13 N.Y.C.R.R. §§ 20.3(c)(1); district. 20.3(d)(4); 20.3(n)(1); and 20.3(t)(1). In recent years, however, the 6. Paperwork. Besides the aforementioned paperwork associated with purpose and wording of these disclosures have been misinterpreted. The filing an amendment to withdraw or abandon an offering plan, the Department of Law therefore proposes to modify the mandatory disclosure proposed regulatory revisions require no additional reporting or paperwork language in 13 N.Y.C.R.R. Part 20 to clarify its content, enhance its ade- requirements. quacy, and dispel any confusion about its purpose. 7. Duplication. The proposed regulatory revisions will not duplicate 3. Needs and Benefits. The operational and financial control of a con- any existing state or federal rule. dominium, as well as the ability of its unit owners to resell their units, can 8. Alternatives. The Department of Law has considered various alterna- be imperiled if an offeror unilaterally elects to rent, rather than sell, most tives to its proposed regulatory revisions. In particular, the Department of of its condominium units after its offering plan has been consummated. Law issued a guidance document on this topic, as defined by the State Accordingly, as mentioned above, the Department of Law’s existing 13 Administrative Procedures Act Section 102(14), on March 4, 2014 (and N.Y.C.R.R. Part 20 regulations mandate that offerors of newly- amended on July 10, 2015). Nevertheless, the Department of Law has constructed, vacant, or non-residential condominiums disclose in their of- concluded that the proposed revisions are necessary because they are the fering plans if they are reserving a right to rent, rather than sell, units in a most effective means of simultaneously supplying more meaningful condominium, and certain risks to purchasers associated therewith. See 13 disclosure to condominium purchasers, achieving the statutory objective N.Y.C.R.R. §§ 20.3(c)(1); 20.3(d)(4); 20.3(n)(1); and 20.3(t)(1). of G.B.L. Section 352-e, and reducing the unintended consequences that However, as mentioned above, the purpose and wording of these stem from a misinterpretation of the existing regulations. mandatory disclosures have been misinterpreted in recent years. Specifi- 9. Federal Standards. The proposed regulatory revisions do not exceed

46 NYS Register/December 9, 2015 Rule Making Activities any minimum standards of the federal government for the same or similar 5. Economic and technological feasibility. Compliance with the subject. proposed regulatory revisions is technologically feasible for small busi- 10. Compliance Schedule. The proposed regulatory revisions will go nesses and local governments, as the proposed regulatory revisions contain into effect upon their filing with the Secretary of State and the publication no technological requirements. Compliance is also economically feasible; of a Notice of Adoption in the New York State Register. Once adopted, the proposed regulatory revisions impose no demonstrable costs on local the revised regulations will apply to any and all offering plans submitted governments and impose minimal costs to certain small businesses (as to the Department of Law pursuant to 13 N.Y.C.R.R. Part 20. No ad- detailed above). ditional time is required to enable regulated parties to achieve compliance 6. Minimizing adverse impact. The proposed regulatory revisions do with the proposed regulatory revisions. not affect local governments, and therefore have no adverse economic Regulatory Flexibility Analysis impact on them. The adverse economic impact on small businesses will be 1. Effect of rule. The proposed regulatory revisions will clarify the minimal: other than the aforementioned potential filing and legal fees, the existing disclosure obligations of certain condominium offerors, supply proposed regulatory revisions will have no adverse economic impact on prospective purchasers with more adequate risk disclosure, reduce regula- small businesses. tory misinterpretation and certain unintended consequences stemming The Department of Law has considered various approaches fashioning therefrom, and clarify when interim renting is permitted. The proposed the proposed regulatory revisions, including those set forth in S.A.P.A. regulatory revisions may affect certain small businesses: specifically, con- Section 202-b(1). In particular, the Department of Law issued a guidance dominium offerors that may have misinterpreted the existing regulations document on this topic, as defined by S.A.P.A. Section 102(14), on March as permitting renting prior to the time an offering plan is consummated. 4, 2014 (and amended on July 10, 2015). Nevertheless, the Department of However, the majority of offering plans submitted to the Department of Law has concluded that the proposed regulatory revisions are the most ef- Law are sponsored by single-purpose limited liability companies that are fective means of simultaneously supplying more meaningful disclosure to directly affiliated with larger entities. The State Administrative Procedure condominium purchasers, achieving the statutory objective of G.B.L. Sec- Act (“S.A.P.A.”) Section 102(8) defines a defines a small business as, tion 352-e, and reducing the unintended consequences that stem from a “[a]ny business which is resident in this state, independently owned and misinterpretation of the existing regulations. operated and that employs 100 or less people.” Accordingly, the Depart- 7. Federal standards. The proposed regulatory revisions do not exceed ment of Law believes that very few small businesses, as defined by any minimum standards of the federal government for the same or similar S.A.P.A. Section 102(8), will be affected by the proposed regulatory subject. revisions. 8. Small business and local government participation. To ensure that Under the proposed regulatory revisions, the aforementioned condo- small businesses and local governments have an opportunity to participate minium offerors would be required to file an amendment either: (i) amend- in the rule making process as required by S.A.P.A. Section 202-b(6), a ing and restating their offering plan, (ii) withdrawing their offering plan, copy of the proposed regulatory revisions will be sent to members of the or (iii) abandoning their offering plan. The proposed regulatory revisions Bar who represent offerors and purchasers of condominiums. Copies of do not prevent a condominium offeror who has not rented any residential the proposed regulatory revisions regulations will also be posted on the units prior to consummation of the offering plan (other than to a purchaser Department of Law’s website. in contract pursuant to the terms of an interim lease or interim rental agree- Rural Area Flexibility Analysis ment) from consummating the offering plan. The proposed regulatory 1. Types and estimated numbers of rural areas. The proposed regulatory revisions will have no adverse effect on any local or state government, and revisions apply uniformly throughout the state, including all rural areas. require no action on their part. Executive Law, Article 19-F Rural Affairs Act, Section 481(7) defines a 2. Compliance requirements. The proposed regulatory revisions do not rural area as a county with a population of less than 200,000. New York require local governments to undertake any new reporting or record keep- currently has 44 rural areas. However, the vast majority of the offering ing procedures. plans submitted to the Department of Law are for properties in New York As mentioned above, certain condominium offerors that may have City and its suburbs. Accordingly, the impact of the proposed regulatory misinterpreted the existing regulations as permitting renting prior to the revisions on both rural condominium offerors and rural condominium time an offering plan is consummated would be required to file an amend- purchasers is likely to be very minimal. ment either: (i) amending and restating their offering plan, (ii) withdraw- 2. Reporting, recordkeeping, and other compliance requirements. The ing their offering plan, or (iii) abandoning their offering plan. Such condo- proposed regulatory revisions do not require new obligations in terms of minium offerors would incur one-time costs associated with such a filing, reporting or recordkeeping in rural areas. including a $225.00 amendment filing fee as prescribed by New York Under the proposed regulatory revisions, certain condominium offerors General Business Law (“G.B.L.”) Section 352-e(7) and the legal fees as- operating in rural areas that may have misinterpreted the existing regula- sociated with preparing the amendment. tions to permit renting of residential units by non-interim lessees prior to The proposed regulatory revisions do not impose any additional compli- the time an offering plan is consummated would be required to file an ance requirements on condominium offerors who have not rented any res- amendment either: (i) amending and restating their offering plan to include idential units prior to consummation of the offering plan (other than to a the legally required disclosures and protections for tenants of an occupied purchaser in contract pursuant to the terms of an interim lease or interim residential rental building, (ii) withdrawing their offering plan, or (iii) rental agreement). Nothing in the proposed regulatory revisions prevents abandoning their offering plan. Such condominium offerors would incur such offerors from consummating their offering plan. one-time costs associated with such a filing, including a $225.00 amend- 3. Professional services. Local governments will not need to employ ment filing fee as prescribed by New York General Business Law any professional services to comply with the proposed regulatory (“G.B.L.”) Section 352-e(7) and the legal fees associated with preparing revisions. The proposed regulatory revisions will require certain condo- the amendment. minium offerors to incur the professional costs associated with the prepa- The proposed regulatory revisions do not prevent a condominium of- ration of an amendment to the offering plan, such as the aforementioned feror who has not rented any residential units prior to consummation of legal fees. the offering plan (other than to a purchaser in contract pursuant to the 4. Compliance costs. The Department of Law foresees no initial capital terms of an interim lease or interim rental agreement) from consummating costs nor any additional annual costs to local governments as a result of the offering plan. Therefore, such offerors are not subject to any additional compliance with the proposed regulatory revisions. The Department of reporting, record keeping, or other compliance requirements as a result of Law also foresees no annual cost to regulated businesses as a result of the proposed regulatory revisions. continuing compliance with the proposed regulatory revisions. 3. Costs. The Department of Law foresees no initial capital costs nor In terms of initial capital costs to regulated businesses, the proposed any additional annual costs to rural public entities as a result of compli- regulatory revisions would require certain condominium offerors that may ance with the proposed regulatory revisions. The Department of Law also have misinterpreted the existing regulations as permitting renting prior to foresees no annual cost to rural private entities as a result of continuing the time an offering plan is consummated to file an amendment either: (i) compliance with the proposed regulatory revisions. amending and restating their offering plan, (ii) withdrawing their offering In terms of initial capital costs to private entities operating in rural ar- plan, or (iii) abandoning their offering plan. Such condominium offerors eas, certain condominium offerors operating in rural areas that may have would incur one-time costs associated with such a filing, including a misinterpreted the existing regulations to permit renting of residential $225.00 amendment filing fee as prescribed by G.B.L. Section 352-e(7) units by non-interim lessees prior to the time an offering plan is consum- and the legal fees associated with preparing the amendment. These costs mated would be required to file an amendment either: (i) amending and will not vary depending on the type and/or size of the regulated business. restating their offering plan to include the legally required disclosures and Condominium offerors who have not rented any residential units prior to protections for tenants of an occupied residential rental building, (ii) consummation (other than to a purchaser in contract pursuant to the terms withdrawing their offering plan, or (iii) abandoning their offering plan. of an interim lease or interim rental agreement) will not incur any ad- Such condominium offerors would incur one-time costs associated with ditional costs as a result of the proposed regulatory revisions. such a filing, including a $225.00 amendment filing fee as prescribed by

47 Rule Making Activities NYS Register/December 9, 2015

G.B.L. Section 352-e(7) and the legal fees associated with preparing the which, in turn, will allow individuals to focus on their recovery. The amendment. These costs will not vary depending on the type and/or size amendments also require distribution of the Code of Conduct, developed of the regulated business. Condominium offerors who have not rented any by the Justice Center, to all employees. Providers must maintain signed residential units prior to consummation (other than to a purchaser in documentation from such employees, indicating that they have received, contract pursuant to the terms of an interim lease or interim rental agree- and understand, the Code. ment) will not incur any additional costs as a result of the proposed regula- - Revise14 NYCRR Part 550 to facilitate and implement the consolida- tory revisions. tion of the criminal background check function in the Justice Center, and 4. Minimizing adverse impact. The proposed regulatory revisions do to make other conforming changes to the criminal background check func- not affect local governments in rural areas, and therefore will have no tion established by the PPSNA. adverse economic impact on them. The adverse economic impact on small OMH has made minor, non-substantive changes to the final adopted businesses will be minimal: other than the aforementioned potential filing rule. They are as follows: and legal fees, the proposed regulatory revisions should have no adverse - Added clarifying language to Section 524.7(b) to ensure that falls are economic impact on the very few condominium offerors operating in rural to be reported as significant incidents only when they occur in inpatient or areas. residential settings. This is already within the definition of “Falls”, but The Department of Law has considered various approaches fashioning staff found it confusing when paired with the “or under staff supervision” the proposed regulatory revisions, including those set forth in the State language found there. Administrative Procedure Act (“S.A.P.A”) Section 202-bb(2). In particu- - Added language to Section 524.8(g) to provide consistency with pro- lar, the Department of Law issued a guidance document on this topic, as visions in OASAS regulations with respect to allegations of abuse or ne- defined by S.A.P.A. Section 102(14), on March 4, 2014 (and amended on glect which appear to be impossible or incredible. July 10, 2015). Nevertheless, the Department of Law has concluded that - Streamlined redundant language in Section 524.9(c)(1) regarding the proposed regulatory revisions are the most effective means of investigations. simultaneously supplying more meaningful disclosure to condominium - Removed the phrase “45 days from completion” from Section purchasers, achieving the statutory objective of G.B.L. Section 352-e, and 524.13(b)(4), which was outdated and added clarifying language to reflect reducing the unintended consequences that stem from a misinterpretation the current practice of 45 days from acceptance of the report by the Justice of the existing regulations. Center. 5. Rural area participation. To ensure that persons and entities in rural Final rule as compared with last published rule: Nonsubstantive changes areas have an opportunity to participate in the rule making process as were made in sections 524.7(b), 524.8(g), 524.9(c)(1) and 524.13(b)(4). required in S.A.P.A. Section 202-bb(7), a copy of the proposed regulatory revisions will be sent to members of the Bar who represent offerors and Text of rule and any required statements and analyses may be obtained purchasers of condominiums. Copies of the proposed regulatory revisions from: Sue Watson, NYS Office of Mental Health, 44 Holland Avenue, will also be posted on the Department of Law’s website. Albany, NY 12229, (518) 474-1331, email: [email protected] Revised Regulatory Impact Statement A revised Regulatory Impact Statement is not included with this notice as the changes made to the final adopted rule do not necessitate a change to Office of Mental Health this document. The changes are non-substantive and serve to provide clarification and improve readability. Revised Regulatory Flexibility Analysis NOTICE OF ADOPTION A revised Regulatory Flexibility Analysis for Small Businesses and Local Governments is not included with this notice as the changes made to the Implementation of the Protection of People with Special Needs final adopted rule do not necessitate a change to this document. The Act and Reforms to Incident Management changes are non-substantive and serve to provide clarification and improve readability. The amendments to 14 NYCRR Parts 501, 524 and 550 will I.D. No. OMH-39-15-00002-A not have an adverse economic impact upon small businesses or local Filing No. 1016 governments. Filing Date: 2015-11-23 Revised Rural Area Flexibility Analysis Effective Date: 2015-12-09 A revised Rural Area Flexibility Analysis is not included with this notice as the changes made to the final adopted rule do not necessitate a change PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- to this document. The changes are non-substantive and serve to provide cedure Act, NOTICE is hereby given of the following action: clarification and improve readability. The amendments to 14 NYCRR Parts 501, 524 and 550 will not have an adverse economic impact upon ru- Action taken: Amendment of Parts 501 and 550; repeal of Part 524; and addition of new Part 524 to Title 14 NYCRR. ral areas. Statutory authority: Mental Hygiene Law, sections 7.07, 7.09 and 31.04 Revised Job Impact Statement A revised Job Impact Statement is not included with this notice as the Subject: Implementation of the Protection of People with Special Needs Act and reforms to incident management. changes made to the final adopted rule do not necessitate a change to this document. The changes are non-substantive and serve to provide clarifica- Purpose: To enhance protections for people with mental illness served in tion and improve readability. the OMH system. Initial Review of Rule Substance of final rule: The Office of Mental Health (OMH) is adopting as final the repeal of 14 NYCRR Part 524 (Incident Management Pro- As a rule that requires a RFA, RAFA or JIS, this rule will be initially grams) and addition of a new 14 NYCRR Part 524 (Incident Management reviewed in the calendar year 2018, which is no later than the 3rd year af- Programs), as well as the amendments to 14 NYCRR Part 501 (Mental ter the year in which this rule is being adopted. Health Services – General Provisions) and Part 550 (Criminal History Assessment of Public Comment Record Checks). The regulations are intended to conform OMH’s regula- The agency received comments from a provider and a trade organizations to Chapter 501 of the Laws of 2012 (Protection of People with tion in response to OMH’s proposed rule making amending 14 NYCRR Special Needs Act or PPSNA). Specifically, the amendments: Parts 501, 524 and 550 – Implementation of the Protection of People with - Amend 14 NYCRR Part 501 by adding a new Subdivision (a) to Sec- Special Needs Act and Reforms to Incident Management. tion 501.5, “Obsolete or Outdated References,” that replaces any refer- The comments are addressed below: ence throughout OMH regulations to the Commission on Quality of Care Comment: The terms Employee or Staff are defined in Section 524.4(c) and Advocacy for Persons with Disabilities with a reference to the Justice as an administrator, employee, consultant, volunteer or student affiliated Center for the Protection of People with Special Needs. with a mental health provider as such term is defined in this Section, or a - Repeal and revise 14 NYCRR Part 524 (Incident Management) to person employed by an entity which has a contract with such a program or incorporate categories of “reportable incidents” as established by the provider, but shall not include employees or volunteers who are also PPSNA and includes enhanced provisions regarding incident patients of the mental health provider. The commenter stated that there are investigations. The amendments make changes related to definitions, services where consumers are expected to be an integral part of the reporting, investigation, notification and committee review of events and program operation with substantial contact with the program clients, such situations that occur in providers of mental health services licensed or as the Peer Support Specialist. The commenter sought confirmation that operated by OMH. It is OMH’s expectation that implementation of these these individuals would not be included as employees if they also receive amendments will enhance safeguards for persons with mental illness, services from the agency.

48 NYS Register/December 9, 2015 Rule Making Activities

Response: This comment does not require a change to the regulations to cause the person to make a false report and no other person has come and will be addressed in guidance for providers. forward as a witness to such allegation. The commenter believes that OMH Comment: The term Neglect in Section 524.5(n) states… (1) failure to should adopt a similar type of delay in reporting to address the possibility provide supervision, including lack of proper supervision that results in of a false allegation. conduct between persons receiving services that would constitute abuse if Response: The substance of this language was intended to be in the committed by a custodian.” In most Treatment Apartments for Adults protocols developed by OMH in consultation with the Justice Center. under Part 595 of 14 NYCRR, there is no staff supervision. Staff visit to However, clarifying language similar to 14 NYCRR Section 836 has been provide psychiatric rehabilitation services. Provider is unclear how an added in Section 524.8(g) to make OMH regulations consistent with those interaction between roommates would be considered neglect by staff and of OASAS. seeks clarification. Comment: Section 524.9(c)(1) states that for investigations conducted Response: This definition represents the statutory definition of Neglect by OMH and mental health providers all such “investigations and inspec- in Social Services Law Section 488. Clarification will be provided in guid- tions of clinical records shall be made by persons competent to conduct ance for providers. such investigations and inspections.” This provision is not made applicable Comment: Paragraphs (1) through (7) in Section 524.14(a) Special to investigations done by the Justice Center, nor to its investigators. The Investigations all reference inpatient programs. Provider requested commenter stated that OMH should require the same such competency of clarification whether this pertains only to inpatient (in the hospital) or Justice Center investigators as it does for OMH investigators. Response: This comment does not require a change in regulations. It whether this includes residents of OMH-licensed residential programs. reflects a statutory requirement in Mental Hygiene Law Section 31.09. Response: Clarification will be provided in guidance for providers. Comment: Section 524.9(c)(4) requires providers immediately to begin Comment: A trade organization stated that OMH should take into conducting any assessment or review necessary once the provider is made consideration any unintended adverse consequences that may arise as a aware of a report to the Justice Center (or when a patient death has result of incorporating the Justice Center’s regulations and guidelines into occurred). This provision prohibits the provider from taking any state- OMH’s own regulations. The commenter stated it is supportive of the ments from witnesses to the incident – only the designated investigating Justice Center’s mission but has concerns regarding the agency’s opera- entity may do so. The commenter believes this is counterproductive as it tions and its impact on providers. Imposing additional burdens on provid- hampers the provider’s ability to conduct an assessment or review, and ers that are cumbersome, and in many cases, still ill-defined, would not that OMH should eliminate this prohibition. help achieve the Justice Center’s goal. Response: OMH will continue to work with the Justice Center to resolve Response: This comment does not require a change to the regulations. identified issues and concerns. Comment: The proposed changes to the incident category definitions in Comment: The proposed changes to the incident category definitions in Section 524.5 state that “nothing contained herein shall be construed as § 524.5 state that “nothing contained herein shall be construed as restrict- restricting the discretion of the Justice Center in categorizing incident ing the discretion of the Justice Center in categorizing incident reports.” reports.” The commenter’s hospital members have advised that they have The commenter’s hospital members have advised that they have had experienced problems with receiving conflicting information from the problems with receiving conflicting information from the Justice Center and OMH regarding incident categories. The commenter is concerned Justice Center and OMH regarding incident categories. The commenter is with this proposed provision because it appears to give the Justice Center concerned with this proposed provision, as it appears to give the Justice the flexibility to categorize incidents as abuse and/or neglect, even if the Center the flexibility to categorize incidents as abuse and/or neglect, even incident does not fall into the definitions of abuse or neglect in Part 524. if the incident does not fall into the definitions of abuse or neglect in Part Response: This comment does not require a change to the regulations. 524. OMH will continue to work with the Justice Center to resolve identified Response: This comment does not require a change to the regulations. issues and concerns. OMH will continue to work with the Justice Center to resolve identified issues and concerns. Comment: The trade organization expressed concern that the regulations do not sufficiently ease the numerous duplicative mandated report- Public Service Commission ing requirements that have been imposed by the Justice Center. Proposed changes in Section 524.8(e) still require multiple mandated reporters to submit reports concerning the same incident. In addition, it imposes an NOTICE OF ADOPTION added burden on providers, as it requires providers “to establish written protocols to ensure reports involving multiple mandated reporters are Submetering of Electricity properly made and documented.” Response: This comment does not require a change to the regulations. I.D. No. PSC-11-15-00024-A OMH will continue to work with the Justice Center to resolve identified Filing Date: 2015-11-20 issues and concerns. Effective Date: 2015-11-20 Comment: The commenter stated that OMH should work with the Justice Center to eliminate the need for multiple reports regarding the same incident. OMH should eliminate the requirement that providers es- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- tablish protocols for reports involving multiple mandated reporters, and cedure Act, NOTICE is hereby given of the following action: instead have OMH develop those protocols. Action taken: On 11/19/15, the PSC adopted an order approving Island Response: This comment does not require a change to the regulations. House Tenants Corporation's (Island House) Notice of Intent to submeter OMH will continue to work with the Justice Center to resolve identified electricity at 551, 555 and 575 Main Street, New York, New York. issues and concerns. Statutory authority: Public Service Law, sections 2, 4(1), 30, 32-48, 52, Comment: Section 524.8(f) states that OMH “shall develop protocols in 53, 65(1), 66(1), (2), (3), (4), (12) and (14) consultation with the Justice Center to assist providers in appropriately and therapeutically responding in circumstances where patients have a Subject: Submetering of electricity. demonstrated pattern of frequently reporting allegations of abuse or ne- Purpose: To approve Island House's Notice of Intent to submeter glect that are not reasonably reliable (i.e., there is no possibility that an al- electricity. legation is true).” The commenter supports efforts to streamline processes Substance of final rule: The Commission, on November 19, 2015, related to the Justice Center in a way that is mindful of current treatment, adopted an order approving the Notice of Intent filed by Island House and believes that OMH should continue to look at this area, including Tenants Corporation and Island House Preservation Partners, LLC, to ways to eliminate the multiple false reports made through the Justice submeter electricity at 551, 555 and 575 Main Street, New York, New Center’s reporting system. York, subject to the terms and conditions set forth in the order. Response: This comment does not require a change to the regulations. Final rule as compared with last published rule: No changes. OMH will continue to work with the Justice Center to resolve identified issues and concerns. Text of rule may be obtained from: John Pitucci, Public Service Commis- Comment: The commenter stated that OMH should more closely align sion, Three Empire State Plaza, Albany, New York 12223, (518) 486- its regulation with the proposed amendments to 14 NYCRR 836 set forth 2655, email: [email protected] An IRS employer ID no. or social by the New York State Office of Alcoholism and Substance Abuse Ser- security no. is required from firms or persons to be billed 25 cents per vices (OASAS). Section 836.6(g) permits providers to delay discovery page. Please use tracking number found on last line of notice in requests. and immediate reporting for up to 24 hours to conduct a preliminary Assessment of Public Comment review of an allegation of abuse or neglect when the person making the al- An assessment of public comment is not submitted with this notice because legation has a documented history of making false reports or the person the rule is within the definition contained in section 102(2)(a)(ii) of the has a documented behavioral or psychological condition that would tend State Administrative Procedure Act.

49 Rule Making Activities NYS Register/December 9, 2015

(15-E-0077SA1) NOTICE OF ADOPTION

NOTICE OF ADOPTION Rehearing and Clarification Area Code Overlay I.D. No. PSC-32-15-00008-A I.D. No. PSC-15-15-00006-A Filing Date: 2015-11-20 Filing Date: 2015-11-23 Effective Date: 2015-11-20 Effective Date: 2015-11-23 PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedure Act, NOTICE is hereby given of the following action: cedure Act, NOTICE is hereby given of the following action: Action taken: On 11/19/15, the PSC adopted an order granting Central Action taken: On 11/19/15, the PSC adopted an order approving North Hudson Gas and Electric Corporation (Central Hudson) a rehearing and American Numbering Plan Administrator's (NANPA) petition to activate clarification of three aspects of the June 17, 2015 Order Approving Rate a new area code overlay for the existing 212/646/917 Numbering Plan Plan. Area (NPA). Statutory authority: Public Service Law, sections 4, 22 and 66 Statutory authority: Public Service Law, section 97(2) Subject: Area code overlay. Subject: Rehearing and clarification. Purpose: To approve NANPA's petition to activate a new area code Purpose: To grant Central Hudson a rehearing and clarification. overlay. Substance of final rule: The Commission, on November 19, 2015, Substance of final rule: The Commission, on November 19, 2015, adopted an order granting Central Hudson Gas and Electric Corporation a adopted an order approving the petition of North American Numbering rehearing and clarification of three aspects of the June 17, 2015 Order Ap- Plan Administrator to activate a new area code overlay for the existing proving Rate Plan, subject to the terms and conditions set forth in the 212/646/917 Numbering Plan Area, subject to the terms and conditions set order. forth in the order. Final rule as compared with last published rule: No changes. Final rule as compared with last published rule: No changes. Text of rule may be obtained from: John Pitucci, Public Service Commis- Text of rule may be obtained from: John Pitucci, Public Service Commis- sion, Three Empire State Plaza, Albany, New York 12223, (518) 486- sion, Three Empire State Plaza, Albany, New York 12223, (518) 486- 2655, email: [email protected] An IRS employer ID no. or social 2655, email: [email protected] An IRS employer ID no. or social security no. is required from firms or persons to be billed 25 cents per security 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. page. Please use tracking number found on last line of notice in requests. Assessment of Public Comment Assessment of Public Comment An assessment of public comment is not submitted with this notice because An assessment of public comment is not submitted with this notice because the rule is within the definition contained in section 102(2)(a)(ii) of the the rule is within the definition contained in section 102(2)(a)(ii) of the State Administrative Procedure Act. State Administrative Procedure Act. (15-C-0168SA1) (14-E-0318SA2) NOTICE OF ADOPTION NOTICE OF ADOPTION

Approval of Amendments to Regulations on USOA and Alliance's Financing Limit Reporting Requirements I.D. No. PSC-32-15-00011-A I.D. No. PSC-31-15-00021-A Filing Date: 2015-11-19 Filing No. 1020 Effective Date: 2015-11-19 Filing Date: 2015-11-24 Effective Date: 2015-11-24 PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedure Act, NOTICE is hereby given of the following action: PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedure Act, NOTICE is hereby given of the following action: Action taken: On 11/19/15, the PSC adopted an order approving Alliance Energy New York, LLC, Alliance NYGT, LLC and Alliance Energy Action taken: Amendment of Parts 10, 167 and 312 of Title 16 NYCRR. Transmission, LLC's (Alliance) petition to increase its financing limit Statutory authority: Public Service Law, sections 4, 5, 65 and 66 from $30 million to $75 million. Subject: Approval of amendments to regulations on USOA and reporting requirements. Statutory authority: Public Service Law, section 69 Purpose: To approve amendments to regulations on USOA and reporting Subject: Alliance's financing limit. requirements. Purpose: To approve Alliance's petition to increase its financing limit. Substance of final rule: The Commission, on November 19, 2015, Substance of final rule: The Commission, on November 19, 2015, adopted a memorandum and resolution approving amendments to regula- adopted an order approving the petition of Alliance Energy New York, tions on Uniform System of Accounts (USOA) and reporting requirements in 16 NYCRR Part 10, 167 and 312. The revisions pertain to 16 LLC, Alliance NYGT, LLC and Alliance Energy Transmissions, LLC, to NYCRR Section 10.2(b), to reference the Federal Energy Regulatory increase its financing limit from $30 million to $75 million, subject to the Commission USOA as of April 1, 2015, and 16 NYCRR Parts 167 and terms and conditions set forth in the order. 312 to add new sections 167.5, 167.6, 312.5, and 312.6 to establish sepa- Final rule as compared with last published rule: No changes. rate revenue accounts and instructions to record delivery revenues for customers served by energy service providers. Text of rule may be obtained from: John Pitucci, Public Service Commis- sion, Three Empire State Plaza, Albany, New York 12223, (518) 486- Final rule as compared with last published rule: No changes. 2655, email: [email protected] An IRS employer ID no. or social Text of rule may be obtained from: John Pitucci, Public Service Commis- security no. is required from firms or persons to be billed 25 cents per sion, Three Empire State Plaza, Albany, New York, 12223, (518) 486- page. Please use tracking number found on last line of notice in requests. 2655, email: [email protected] An IRS employer ID no. or social security no. is required from firms or persons to be billed 25 cents per Assessment of Public Comment page. Please use tracking number found on last line of notice in requests. An assessment of public comment is not submitted with this notice because Assessment of Public Comment the rule is within the definition contained in section 102(2)(a)(ii) of the The agency received no public comment. State Administrative Procedure Act. (14-M-0450SA1) (15-M-0406SA1)

50 NYS Register/December 9, 2015 Rule Making Activities

NOTICE OF ADOPTION NOTICE OF ADOPTION

Cricket Valley's Financing Arrangement Transfer of Street Lighting Facilities I.D. No. PSC-34-15-00016-A I.D. No. PSC-36-15-00026-A Filing Date: 2015-11-19 Filing Date: 2015-11-19 Effective Date: 2015-11-19 Effective Date: 2015-11-19

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedure Act, NOTICE is hereby given of the following action: cedure Act, NOTICE is hereby given of the following action: Action taken: On 11/19/15, the PSC adopted an order approving Cricket Action taken: On 11/19/15, the PSC adopted an order approving New Valley Energy Center, LLC's (Cricket Valley) petition for a financing ar- York State Gas and Electric Corporation's (NYSEG) petition to transfer rangement to enter into debt instruments, up to the maximum amount of street lighting facilities to the Village of Horseheads. $1.5 billion. Statutory authority: Public Service Law, section 70 Statutory authority: Public Service Law, section 69 Subject: Transfer of street lighting facilities. Subject: Cricket Valley's financing arrangement. Purpose: To approve NYSEG's petition to transfer street lighting facilities to the Village of Horseheads. Purpose: To approve Cricket Valley's financing arrangement. Substance of final rule: The Commission, on November 19, 2015, Substance of final rule: The Commission, on November 19, 2015, adopted an order approving New York State Gas and Electric Corpora- adopted an order approving Cricket Valley Energy Center, LLC's petition tion’s petition to transfer street lighting facilities to the Village of for authority to enter into debt instruments in an amount not to exceed Horseheads, subject to the terms and conditions set forth in the order. $1.5 billion, subject to the terms and conditions set forth in the order. Final rule as compared with last published rule: No changes. Final rule as compared with last published rule: No changes. Text of rule may be obtained from: John Pitucci, Public Service Commis- Text of rule may be obtained from: John Pitucci, Public Service Commis- sion, Three Empire State Plaza, Albany, New York, 12223, (518) 486- sion, Three Empire State Plaza, Albany, New York 12223, (518) 486- 2655, email: [email protected] An IRS employer ID no. or social 2655, email: [email protected] An IRS employer ID no. or social security no. is required from firms or persons to be billed 25 cents per security 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. page. Please use tracking number found on last line of notice in requests. Assessment of Public Comment Assessment of Public Comment An assessment of public comment is not submitted with this notice because An assessment of public comment is not submitted with this notice because the rule is within the definition contained in section 102(2)(a)(ii) of the the rule is within the definition contained in section 102(2)(a)(ii) of the State Administrative Procedure Act. State Administrative Procedure Act. (15-E-0471SA1) (15-E-0454SA1) NOTICE OF ADOPTION NOTICE OF ADOPTION Annual Operating Revenues and Restoration of Service Charges Waiver of Rules I.D. No. PSC-37-15-00011-A I.D. No. PSC-34-15-00025-A Filing Date: 2015-11-23 Filing Date: 2015-11-20 Effective Date: 2015-11-23 Effective Date: 2015-11-20 PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedure Act, NOTICE is hereby given of the following action: cedure Act, NOTICE is hereby given of the following action: Action taken: On 11/19/15, the PSC adopted an order authorizing Wil- Action taken: On 11/19/15, the PSC adopted an order denying Walking liam K. Green (Green) to increase its annual operating revenues by $3,050 Meadows Development (Walking Meadows) a waiver of Commission and or 45%, and to modify its restoration of service charges. utility tariff rules related to extensions of electric and gas service. Statutory authority: Public Service Law, sections 4(1), 5(1)(f), 89-c(1), Statutory authority: Public Service Law, section 66(12) (3), (10)(a), (b) and (f) Subject: Waiver of rules. Subject: Annual operating revenues and restoration of service charges. Purpose: To authorize Green to increase its annual operating revenues Purpose: To deny Walking Meadows a waiver of rules. and modify its restoration of service charges. Substance of final rule: The Commission, on November 19, 2015, Substance of final rule: The Commission, on November 19, 2015, adopted an order denying Walking Meadows Development a waiver of 16 adopted an order authorizing William K. Green to increase its annual NYCRR § 100.3(b) and Niagara Mohawk Power Company d/b/a National operating revenues by $3,050 or 45%, and to modify its restoration of ser- Grid tariff rules; P.S.C. No. 219 — Gas, Rule 10.4 and P.S.C. No. 220 — vice charges to be consistent with charges in the standard small water Electricity, Rule 16.6, relating to extensions of electric and gas service, company tariff, effective December 1, 2015, subject to the terms and subject to the terms and conditions set forth in the order. conditions set forth in the order. Final rule as compared with last published rule: No changes. Final rule as compared with last published rule: No changes. Text of rule may be obtained from: John Pitucci, Public Service Commis- Text of rule may be obtained from: John Pitucci, Public Service Commis- sion, Three Empire State Plaza, Albany, New York 12223, (518) 486- sion, Three Empire State Plaza, Albany, New York 12223, (518) 486- 2655, email: [email protected] An IRS employer ID no. or social 2655, email: [email protected] An IRS employer ID no. or social security no. is required from firms or persons to be billed 25 cents per security 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. page. Please use tracking number found on last line of notice in requests. Assessment of Public Comment Assessment of Public Comment An assessment of public comment is not submitted with this notice because An assessment of public comment is not submitted with this notice because the rule is within the definition contained in section 102(2)(a)(ii) of the the rule is within the definition contained in section 102(2)(a)(ii) of the State Administrative Procedure Act. State Administrative Procedure Act. (15-M-0435SA1) (15-W-0508SA1)

51 Rule Making Activities NYS Register/December 9, 2015

PROPOSED RULE MAKING Public comment will be received until: 45 days after publication of this NO HEARING(S) SCHEDULED notice. Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Petition to Waive Monthly Billing for Certain Net-Metered Area Flexibility Analysis and Job Impact Statement Customers Statements and analyses are not submitted with this notice because the proposed rule is within the definition contained in section 102(2)(a)(ii) of I.D. No. PSC-49-15-00006-P the State Administrative Procedure Act. (15-W-0639SP1) PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- cedure Act, NOTICE is hereby given of the following proposed rule: PROPOSED RULE MAKING Proposed Action: The Public Service Commission is considering a peti- NO HEARING(S) SCHEDULED tion filed by Central Hudson Gas & Electric Corporation to waive monthly billing for certain net-metered customers. Request of the New York Independent System Operator, Inc. to Statutory authority: Public Service Law, sections 5(1), 65(1), (2), (3), Incur Indebtedness 66(1), (2), (3), (5), 66-j and 66-l Subject: Petition to waive monthly billing for certain net-metered I.D. No. PSC-49-15-00008-P customers. Purpose: To consider the request of Central Hudson to continue bimonthly PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- meter reading and billing for certain net-metered customers. cedure Act, NOTICE is hereby given of the following proposed rule: Substance of proposed rule: On November 18, 2015, Central Hudson Gas Proposed Action: The Commission is considering a petition filed on & Electric Corporation filed a petition to waive the monthly billing November 10, 2015, by the New York Independent System Operator, Inc. requirement for certain net-metered customers adopted in Cases 14-E- (NYISO), to incur indebtedness for a term in excess of twelve months. 0318 and 14-G-0319 in the Order Approving Rate Plan issued and effec- Statutory authority: Public Service Law, sections 4(1), 5(2), 65(1), 66(1), tive June 17, 2015. The Public Service Commission is considering whether (2), (4) and (5) and 69 to approve, deny or modify, in whole or part, the request to waive the monthly billing requirement and to take other actions necessary to address Subject: Request of the New York Independent System Operator, Inc. to the petition. incur indebtedness. Text of proposed rule and any required statements and analyses may be Purpose: To consider a petition filed by the New York Independent obtained by filing a Document Request Form (F-96) located on our System Operator, Inc. to incur indebtedness. website http://www.dps.ny.gov/f96dir.htm. For questions, contact: John Substance of proposed rule: The Public Service Commission is consider- Pitucci, Public Service Commission, 3 Empire State Plaza, Albany, New ing a Petition filed by the New York Independent System Operator, Inc. York 12223-1350, (518) 486-2655, email: [email protected] (NYISO) on November 10, 2015, seeking approval to incur indebtedness, Data, views or arguments may be submitted to: Kathleen H. Burgess, for a term in excess of twelve months. The Petition seeks to: (i) extend the Secretary, Public Service Commission, 3 Empire State Plaza, Albany, term of its currently-approved credit facilities consisting of a revolving New York 12223-1350, (518) 474-6530, email: [email protected] line of credit and a term loan facility for an additional one-year period until December 31, 2018; (ii) increase the maximum principal amount Public comment will be received until: 45 days after publication of this available under the currently-approved term loan facility by $25 million to notice. $125 million to reflect the term extension; and, (iii) enter into a new three- Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural year unsecured term loan credit facility in the amount of $30 million Area Flexibility Analysis and Job Impact Statement dedicated to funding the multi-year project for replacing the NYISO’s Statements and analyses are not submitted with this notice because the Energy Management System and Business Management System. The proposed rule is within the definition contained in section 102(2)(a)(ii) of Commission may adopt, modify, or reject, in whole or in part, the relief the State Administrative Procedure Act. proposed and may resolve related matters. (14-E-0318SP4) Text of proposed rule and any required statements and analyses may be obtained by filing a Document Request Form (F-96) located on our PROPOSED RULE MAKING website http://www.dps.ny.gov/f96dir.htm. For questions, contact: John Pitucci, Department of Public Service, 3 Empire State Plaza, Albany, New NO HEARING(S) SCHEDULED York 12223-1350, (518) 486-2655, email: [email protected] Petition to Transfer Assets of AOMNE to NYAW Data, views or arguments may be submitted to: Kathleen H. Burgess, Secretary, Public Service Commission, 3 Empire State Plaza, Albany, I.D. No. PSC-49-15-00007-P New York 12223-1350, (518) 474-6530, email: [email protected] Public comment will be received until: 45 days after publication of this PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- notice. cedure Act, NOTICE is hereby given of the following proposed rule: Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Proposed Action: The Commission is considering the joint petition of Area Flexibility Analysis and Job Impact Statement New York American Water, Inc. (NYAW) and Association of Owners of Statements and analyses are not submitted with this notice because the Mill Neck Estates, Inc. (AOMNE) to transfer ownership of AOMNE to proposed rule is within the definition contained in section 102(2)(a)(ii) of NYAW for $133,000. the State Administrative Procedure Act. Statutory authority: Public Service Law, section 89-h (15-E-0655SP1) Subject: Petition to transfer assets of AOMNE to NYAW. PROPOSED RULE MAKING Purpose: To consider the petition to transfer assets of AOMNE to NYAW. Substance of proposed rule: On November 2, 2015, New York American NO HEARING(S) SCHEDULED Water Company, Inc. (NYAW) and Association of Owners of Mill Neck Estates, Inc. (AONME) filed a joint petition under Public Service Law Petition for Rehearing of the Order Establishing Interim Ceilings 89-h seeking approval of the transfer of AONME to NYAW for a price of on the Interconnection of Net Metered Generation $133,000. The Commission may adopt, modify, or reject, in whole or in I.D. No. PSC-49-15-00009-P part, the relief proposed and may resolve related matters. Text of proposed rule and any required statements and analyses may be obtained by filing a Document Request Form (F-96) located on our PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- website http://www.dps.ny.gov/f96dir.htm. For questions, contact: John cedure Act, NOTICE is hereby given of the following proposed rule: Pitucci, Public Service Commission, 3 Empire State Plaza, Albany, New Proposed Action: The Commission is considering a Petition requesting York 12223-1350, (518) 486-2655, email: [email protected] rehearing of the October 16, 2015 Order Establishing Interim Ceilings on Data, views or arguments may be submitted to: Kathleen H. Burgess, the Interconnection of Net Metered Generation submitted by the Joint Secretary, Public Service Commission, 3 Empire State Plaza, Albany, Utilities on November 16, 2015. New York 12223-1350, (518) 474-6530, email: [email protected] Statutory authority: Public Service Law, sections 2(2-a) - 2(2-d), (4),

52 NYS Register/December 9, 2015 Rule Making Activities

5(2), 22, 65(1), (2), (3), 66(1), (2), (3), (4), (5), (9), (12), (12-a), 66-c and Data, views or arguments may be submitted to: Kathleen H. Burgess, 66-j Secretary, Public Service Commission, 3 Empire State Plaza, Albany, Subject: Petition for rehearing of the Order Establishing Interim Ceilings New York 12223-1350, (518) 474-6530, email: [email protected] on the Interconnection of Net Metered Generation. Public comment will be received until: 45 days after publication of this Purpose: To consider a Petition for rehearing of the Order Establishing notice. Interim Ceilings on the Interconnection of Net Metered Generation. Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Substance of proposed rule: The Public Service Commission is consider- Area Flexibility Analysis and Job Impact Statement ing a petition submitted on November 16, 2015 by Orange and Rockland Statements and analyses are not submitted with this notice because the Utilities, Inc., Consolidated Edison Company of New York, Inc., Central proposed rule is within the definition contained in section 102(2)(a)(ii) of Hudson Gas & Electric, Niagara Mohawk Power Corporation d/b/a the State Administrative Procedure Act. National Grid, New York State Electric & Gas Corporation, and Roches- (15-E-0684SP1) ter Gas and Electric Corporation (collectively, the Joint Utilities) requesting rehearing of the Order Establishing Interim Ceilings on the Intercon- nection of Net Metered Generation issued in Case 15-E-0407 on October 16, 2015. The Joint Utilities request rehearing regarding the Commis- sion’s decision to modify the ceilings on the interconnection of net metered Department of State generation. The Commission may reaffirm its initial decision or adhere to it with additional rationale, modify the decision, reverse the decision, or take such other or further action as it deems necessary. EMERGENCY Text of proposed rule and any required statements and analyses may be RULE MAKING obtained by filing a Document Request Form (F-96) located on our website http://www.dps.ny.gov/f96dir.htm. For questions, contact: Elaine Installation of Carbon Monoxide Detecting Devices in Agresta, Public Service Commission, 3 Empire State Plaza, Albany, New Commercial Buildings York 12223-1350, (518) 486-2660, email: [email protected] Data, views or arguments may be submitted to: Kathleen H. Burgess, I.D. No. DOS-28-15-00004-E Secretary, Public Service Commission, 3 Empire State Plaza, Albany, Filing No. 1009 New York 12223-1350, (518) 474-6530, email: [email protected] Filing Date: 2015-11-20 Public comment will be received until: 45 days after publication of this notice. Effective Date: 2015-11-20 Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Statements and analyses are not submitted with this notice because the cedure Act, NOTICE is hereby given of the following action: proposed rule is within the definition contained in section 102(2)(a)(ii) of Action taken: Addition of section 1228.4 to Title 19 NYCRR. the State Administrative Procedure Act. Statutory authority: Executive Law, sections 377(1) and 378(5-d) (15-E-0407SP2) Finding of necessity for emergency rule: Preservation of public safety and general welfare. PROPOSED RULE MAKING Specific reasons underlying the finding of necessity: This rule is adopted NO HEARING(S) SCHEDULED as an emergency measure to preserve public safety and public health and because time is of the essence. Proposed Revisions to Rule 34—Economic Development This rule amends the State Uniform Fire Prevention and Building Code Programs and SC No. 12—Special Contract Rates (Uniform Code). The Uniform Code is a fire prevention and building code adopted by the State Fire Prevention and Building Code Council (Code I.D. No. PSC-49-15-00010-P Council) pursuant to Article 18 of the Executive Law. The Uniform Code is applicable in all parts of the State except New York City. PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- Executive Law § 378 sets forth standards which the Uniform Code shall address. Chapter 541 of the Laws of 2014 amended Executive Law § 378 cedure Act, NOTICE is hereby given of the following proposed rule: by adding a new subdivision 5-d. Subdivision 5-d provides that the Proposed Action: The Commission is considering a proposal by Niagara Uniform Code must include “[s]tandards for installation of carbon monox- Mohawk Power Corporation d/b/a National Grid to revise Rule 34—Eco- ide detecting devices requiring that the owner of every building that nomic Development Programs and Service Classification No. 12 - Special contains one or more restaurants and the owner of every commercial build- Contract Rates, P.S.C. No. 220—Electricity. ing in the state shall have installed in such building and shall maintain Statutory authority: Public Service Law, section 66(12) operable carbon monoxide detecting device or devices of such manufac- Subject: Proposed revisions to Rule 34—Economic Development Pro- ture, design and installation standards as are established by the [Code grams and SC No. 12—Special Contract Rates. Council]. Carbon monoxide detecting devices shall only be required if the restaurant or commercial building has appliances, devices or systems that Purpose: To consider revisions to Rule 34—Economic Development may emit carbon monoxide or has an attached garage.” Programs and SC No. 12—Special Contract Rates. This rule implements subdivision 5-d of Executive Law § 378 by add- Substance of proposed rule: The Public Service Commission (Commis- ing a new section 1228.4 (entitled “Carbon Monoxide Detection in Com- sion) is considering modifications proposed by Niagara Mohawk Power mercial Buildings”) to 19 NYCRR Part 1228 (“Additional Uniform Code Corporation d/b/a National Grid (NMPC) to P.S.C. No. 220 – Electricity. Provisions”). New section 1228.4 requires the installation of carbon mon- NMPC proposes to revise Rule 34 – Economic Development Programs to oxide detecting devices (carbon monoxide alarms or a carbon monoxide (1) describe how notification from the New York Power Authority detection system) in every commercial building (including every building (NYPA) is received by NMPC when a customer account received that contains one or more restaurants) if such building contains a carbon Recharge New York (RNY) service, (2) eliminate language that states the monoxide source, contains a garage or other motor-vehicle-related oc- Company will revert the customer back to the billing period of the ap- cupancy and/or is attached to a garage or other motor-vehicle-related propriate service classification from calendar month billing when the occupancy. Section 1228.4 also establishes the manufacture, design, and customer loses its RNY allocation, and (3) eliminate references to installation standards for such carbon monoxide detecting devices. contractual supply obligations between NYPA and its customers. NMPC Adoption of this rule on an emergency basis is necessary to protect pub- also proposes revisions to Service Classification No. 12 – Special Contract lic safety because the absence of carbon monoxide detection devices in Rates to update the filing procedures for Standardized and Individually nonresidential occupancies has contributed to instances of illness and Negotiated Contracts. The proposed amendments have an effective date of death among patrons and employees. The Memorandum in Support of the February 13, 2016. The Commission may adopt, modify, or reject, in bill enacting Executive Law § 378(5-d) states that while New York State whole or in part, the relief proposed and may resolve related matters. one- and two-family homes and apartments are required to be equipped Text of proposed rule and any required statements and analyses may be with carbon monoxide detectors, restaurants and other businesses are not. obtained by filing a Document Request Form (F-96) located on our This failure to mandate carbon monoxide detectors in commercial build- website http://www.dps.ny.gov/f96dir.htm. For questions, contact: John ings has contributed to cases of illness and death among patrons and Pitucci, Public Service Commission, 3 Empire State Plaza, Albany, New employees. The Memorandum in support of the companion bill, which York 12223-1350, (518) 486-2655, email: [email protected] amended the New York City administrative code to require carbon mon-

53 Rule Making Activities NYS Register/December 9, 2015 oxide detection in restaurants and other commercial buildings in New Subdivision (b) (“Definitions”) defines certain terms used in section York City, references the 2014 carbon monoxide leak that tragically killed 1228.4, including: carbon monoxide source; carbon monoxide-producing a Long Island restaurant manager and sickened nearly 30 people. The HVAC system, classroom, commercial building, detection zone, existing carbon monoxide poisoning in this incident came from a malfunctioning commercial building, and new commercial building. water heater flue pipe in the basement of the establishment. Subdivision (c) (“Commercial buildings required to have carbon mon- Carbon monoxide is an invisible, odorless gas that is generated by the oxide detection”) provides that as a general rule, CO detection must be incomplete combustion of carbonaceous fuels such as fuel oil, natural gas, provided in every commercial building that (i) contains any CO source kerosene and wood. In non fire situations, elevated carbon monoxide and/or (ii) is attached to a garage and/or (iii) is attached to any other motor- levels may be caused by improperly installed or maintained fuel fired ap- vehicle-related occupancy. These requirements shall apply without regard pliances, motor vehicles operated in enclosed garages, or using appliances to whether such commercial building is an existing commercial building intended for outdoor use indoors during power failures. As carbon monox- or a new commercial building and without regard to whether such com- ide is not detectable by the senses, its presence and concentration can only mercial building shall or shall not have been offered for sale. However, be determined by instruments such as carbon monoxide detection systems. CO detection shall not be required in: By bringing restaurants and commercial buildings onto an equal footing (1) a commercial building that is classified, in its entirety, in Storage with residences, the Legislature’s objective is to provide a safe experience Group S or Utility and Miscellaneous Group U under Chapter 3 of the for customers and employees and to reduce the number of deaths and 2010 Building Code of New York State (the 2010 BCNYS) and occupied injuries caused by carbon monoxide poisoning. A prior version of this rule was adopted as an emergency measure and only occasionally and only for building or equipment maintenance; proposed for permanent adoption by Notice of Emergency Adoption and (2) a commercial building that is a “canopy” (as that term is defined in Proposed Rule Making (NEAPRM) filed on June 26, 2015 and published the 2010 Fire Code of New York State); or in the State Register on July 15, 2015. The prior version of this rule took (3) a commercial building that is completely unoccupied, during the pe- effect on June 27, 2015. riod when such building is completely unoccupied and other stated condi- The prior version of this rule was previously re-adopted as an emer- tions are satisfied. gency measure by Notice of Emergency Adoption filed on September 21, Subdivision (d) (“Detection zones required to be provided with carbon 2015. The re-adoption of the prior version of this rule expired on monoxide detection”) specifies the detection zones where carbon monox- November 19, 2015. ide detection must be provided. In general, CO detection is required in DOS and the Code Council assessed the comments received during the each detection zone in which at least one “triggering condition” exists. public comment period for the prior version of this rule, and DOS and the “Triggering Condition 1” is the presence of any CO source in the detec- Code Council made a number of non-substantial changes to the prior ver- tion zone. sion of this rule. This rule (i.e., the rue now being adopted) reflects those “Triggering Condition 2” is the presence in a detection zone of a duct non-substantial changes. opening or other outlet from a CO-producing HVAC system (subject to At its meeting held on November 2, 2015, the State Fire Prevention and certain exceptions stated in the full Text of the rule). Building Code Council (Code Council) found and determined that a adop- “Triggering Condition 3” is the presence of a garage or other motor- tion of this rule on an emergency basis, as authorized by section 202 of the vehicle-related occupancy in location that is adjacent to a detection zone State Administrative Procedure Act, is required to preserve public safety (subject to certain exceptions stated in the full Text of the rule). and general welfare because: If a detection zone other than a classroom (as defined in subdivision b) (1) Executive Law § 378 (5-d), as added by Chapter 541 of the Laws of that would otherwise require CO detection has ambient conditions that 2014, provides that the Uniform Code must contain provisions requiring would, under normal conditions and with all required ventilation and the installation of carbon monoxide detecting devices in every commercial exhaust systems installed and operating properly, activate CO detection building and every building that contains one or more restaurants; devices, CO detection shall not be required in that detection zone provided (2) Executive Law § 378 (5-d) became effective on June 27, 2015; that an alternative safety plan for the commercial building in which such (3) the prior version of this rule became effective as an emergency rule detection zone is located shall have been approved by the authority having on June 27, 2015; jurisdiction and implemented. (4) the emergency re-adoption of the prior version of this rule became If a detection zone (other than a classroom) that would otherwise require effective on September 21, 2015; CO detection is “open” (without sidewalls or drops) on 50 percent or more (5) the emergency re-adoption of the prior version of this rule will of its perimeter, and there is no occupiable area within such detection zone expire on November 19, 2015; that is not open on 50 percent or more of its perimeter, CO detection shall (6) DOS and the Code Council have made non-substantial changes to not be required in that detection zone. the prior version of this rule in response to public comments received; Subdivision (e) (“Placement of carbon monoxide detection”) specifies (7) adoption of this rule (which reflects those non-substantial changes) that places within a detection zone where the CO detection devices must as a permanent measure will not be effective until the Notice of Adoption be located. In the case of a detection zone having an area less than 10,000 is published in the State Register; square feet, the CO detection must be placed in a central location within (8) it is unlikely that the Notice of Adoption relating to the adoption of such detection zone. In the case of a detection zone having an area 10,000 this rule as a permanent measure will be filed in time for such Notice of square feet or larger, CO detection must be placed in a central location Adoption to appear in the State Register before November 19, 2015; and within such detection zone and at such additional locations within such (9) adopting this rule on an emergency basis, filing the Notice of Emer- detection zone as may be necessary to assure that no point in the detection gency Adoption on November 20, 2015, and making the emergency adop- zone is more than 100 feet from CO detection. In certain cases (more fully tion of this rule effective immediately upon the filing of the Notice of described in the full Text of the rule), the additional CO detection will not Emergency Adoption, are necessary to assure that the Uniform Code will be required in a detection zone that is 10,000 square feet or larger. continue to include the provisions contemplated by subdivision 5-d of Ex- Subdivision (f) (“Detection equipment”) provides that CO detection ecutive Law § 378 between November 20, 2015 and the date on which the shall be provided by CO alarms complying with subdivision (g) or a CO Notice of Adoption relating to the adoption of this rule as a permanent detection system complying with subdivision (h). measure will appear in the State Register. Subdivision (g) (“Carbon monoxide alarms”) specifies specifications for CO alarms. In general, CO alarms must be hard-wired, with a battery Subject: Installation of carbon monoxide detecting devices in commercial backup. However, battery-powered CO alarms (powered by a 10-year bat- buildings. tery) will be allowed in existing commercial building and in commercial Purpose: To amend the State Uniform Fire Prevention and Building Code buildings without commercial electric power. In either case, CO alarms (Uniform Code) by adding standards requiring the installation of carbon must be listed in accordance with Underwriters Laboratory (UL) 2034. monoxide detecting devices in every commercial building (including but Combination CO / smoke alarms shall not be deemed to satisfy the require- not limited to every building that contains one or more restaurants), if ments of this section 1228.4. The rule includes an exception that would al- such building has appliances, devices or systems that may emit carbon low certain previously installed plug-in or cord-type CO alarms, certain monoxide or has an attached garage, and to establish manufacture, design previously installed CO alarms powered by a battery with a life of less and installation standards for such carbon monoxide detecting devices. than 10-years, and certain previously installed combination CO / smoke Substance of emergency rule: This rule adds new section 1228.4 to Part alarms to remain in place for the remainder of their useful lives. 1228 of 19 NYCRR. New section 1228.4 is part of the State Uniform Fire In new commercial buildings, where a CO alarm is installed in a Prevention and Building Code (the Uniform Code). The provisions of new normally unoccupied detection zone, such CO alarm must be intercon- section 1228.4 (entitled “Carbon Monoxide Detection in Commercial nected with a CO alarm that is placed in an adjacent and normally oc- Buildings”) are summarized as follows: cupied detection zone. A sign that identifies and describes the location of Subdivision (a) (“Introduction”) introduces the new section, which each normally unoccupied detection zone that contains any such intercon- implements standards and requirements regarding carbon monoxide nected CO alarm must be placed in the proximity of each CO alarm (“CO”) detection in certain new and existing commercial. installed in a normally occupied detection zone.

54 NYS Register/December 9, 2015 Rule Making Activities

CO alarms must be installed in the locations specified in subdivisions Subdivision (p) (“Transition period”) establishes a transition period (d) and (e) of section 1228.4. (June 27, 2015 to June 27, 2016); provides that owners of existing com- In general, CO alarms must be installed, operated, and maintained in mercial buildings are encouraged to install carbon monoxide detection as accordance with the manufacturer’s instructions. However, in the event of quickly as practicable; provides that the owner of an existing commercial a conflict between the manufacturer’s instructions and the provisions of building shall not be deemed to be in violation of section 1228.4 if the section 1228.4, the provisions of this section 1228.4 shall control. owner provides the authority having jurisdiction with a written statement Subdivision (h), “Carbon monoxide detection systems,” specifies certifying that such owner is attempting in good faith to install carbon requirements for CO detection systems. CO detection systems must monoxide detection that complies with the requirements of this section comply with National Fire Protection Association (NFPA) 720. CO detec- 1228.4 in such owner’s existing commercial building as quickly as tors shall be listed in accordance with UL 2075. practicable; and provides that carbon monoxide detection that satisfies the The CO detectors must be installed in the locations specified in subdivi- requirements of section 1228.4 must be installed and must be fully sions (d) and (e) of section 1228.4. In the event of a conflict between the operational in all existing commercial buildings by the end of the transi- CO detector location requirements specified in subdivisions (d) and (e) tion period. and the CO detector location requirements specified in NFPA 720, the lo- This notice is intended to serve only as a notice of emergency adoption. cation requirements specified in subdivisions (d) and (e) of section 1228.4 This agency intends to adopt the provisions of this emergency rule as a shall control. permanent rule, having previously submitted to the Department of State a Combination CO / smoke detectors will be permitted in CO detection notice of proposed rule making, I.D. No. DOS-28-15-00004-EP, Issue of systems, provided such combination detectors are listed in accordance July 15, 2015. The emergency rule will expire February 17, 2016. with UL 2075 and UL 268. Notification appliances in CO detection systems must comply with Text of rule and any required statements and analyses may be obtained NFPA 720. Notification appliances shall be provided in the locations from: Mark Blanke, Department of State, One Commerce Plaza, 99 specified in NFPA 720 or, in the alternative, in the locations specified in Washington Ave., Albany, NY 12231-0001, (518) 474-4073, email: subdivisions (d) and (e) and paragraph (4) of subdivision (g) of section [email protected] 1228.4 as the required locations for CO detection. Additional matter required by statute: 1. Executive Law § 378 (15)(a) The power source for CO detection systems must comply with NFPA This rule amends the State Uniform Fire Prevention and Building Code 720. (Uniform Code) by adding a new section 1228.4 to Part 1228 of Title 19 Subdivision (i) (“Additional requirement in Group E occupancies”) NYCRR. New section 1228.4 implements subdivision 5-d of Executive provides that in a new commercial building that (i) has an occupant load Law § 378, as added by Chapter 541 of the Laws of 2014, by requiring the of 31 or more and (ii) is classified, in whole or in part, as Educational installation of carbon monoxide detection in commercial buildings. Group E under Chapter 3 of the 2010 BCNYS, CO alarm signals shall be This rule is a new version of a prior rule that was adopted as an emer- automatically transmitted to an approved on-site location that is normally gency measure and proposed for adoption as a permanent measure by No- staffed by school personnel during normal school hours. tice of Emergency Adoption and Proposed Rule Making filed on June 25, Subdivision (j) (“Maintenance”) provides that CO alarms and CO detec- 2015 and published in the State Register on July 15, 2015. tion systems must be maintained in accordance with NFPA 720, and that The prior version of this rule was re-adopted as an emergency measure CO alarms and CO detectors that become inoperable or begin producing by a Notice of Emergency Adoption filed on September 21, 2015 and end-of-life signals must be replaced as soon as practicable. published in the State Register on October 7, 2015. The re-adoption of the Subdivision (k) (“Connection of carbon monoxide detection systems to prior version of this rule expired on November 19, 2015. control units and off-premises signal transmission”) provides that CO The Department of State (DOS) and the State Fire Prevention and Build- detection systems shall be connected to control units and off-premises ing Code Council (Code Council) made several non-substantial changes to signal transmission. All CO detection systems installed in accordance the prior version of this rule in response to comments received during the with subdivision (h) of section 1228.4 shall have off-premises signal trans- public comment period for the prior version of this rule. This rule reflects mission in accordance with NFPA 720. All CO detection systems in new those non-substantial changes. commercial buildings that are required by section 903 or section 907 of At its meeting held on November 2, 2015, the Code Council found and the 2010 Fire Code of New York State to have a fire alarm control panel determined that (1) adoption of this rule on an emergency basis, (2) filing installed shall have off-premises signal transmission in accordance with the Notice of Emergency Adoption of this rule on November 20, 2015, NFPA 720. CO detection systems shall not activate a fire signal to a fire and (3) making the emergency adoption of this rule effective immediately alarm control panel. CO detection systems shall not activate any notifica- upon the filing of the Notice of Emergency Adoption, are required to tion appliance that announces a fire alarm or any other alarm that is not preserve public safety and general welfare because: distinctive from a fire notification as required by NFPA 72. Where (1) Executive Law § 378 (5-d), as added by Chapter 541 of the Laws of notification of CO detection system is permitted to be transmitted to ap- 2014, provides that the Uniform Code must contain provisions requiring proved locations, at least one approved notification appliance shall be the installation of carbon monoxide detecting devices in every commercial provided within every building that transmits a signal to an approved building and every building that contains one or more restaurants; location. (2) Executive Law § 378 (5-d) became effective on June 27, 2015; Subdivision (l) (“Other Uniform Code provisions relating to carbon (3) the emergency adoption of the prior version of this rule became ef- monoxide detection”) provides that section 1228.4 does not repeal, over- fective on June 27, 2015; ride, modify or otherwise affect any other provision of the Uniform Code (4) the emergency re-adoption of the prior version of this rule became (including but not necessarily limited to section R313.4 of the 2010 effective on September 21, 2015; RCNYS and section 610 of the 2010 FCNYS) that requires CO detection (5) the emergency re-adoption of the prior version of this rule will in any class of buildings, and that any building that is or becomes subject expire on November 19, 2015; to any such other provision must comply with such other provision. (6) adoption of this rule as a permanent measure will not be effective Subdivision (l) further provides that in the case of a building that (1) is until the Notice of Adoption is published in the State Register; subject to section R313.4 of the 2010 RCNYS or section 610 of the 2010 (7) it is unlikely that the Notice of Adoption relating to the adoption of FCNYS and (2) is also a “commercial building” that is subject to section this rule as a permanent measure will be filed in time for such Notice of 1228.4 (a “mixed use building”) must comply with the requirements of Adoption to appear in the State Register before November 19, 2015; and section R313.4 of the 2010 RCNYS or section 610 of the 2010 FCNYS, as (8) adopting this rule on an emergency basis, filing the Notice of Emer- applicable, and, in addition, shall comply with the requirements of section gency Adoption of this rule on November 20, 2015, and making this rule 1228.4. However, duplicative CO detection shall not be required, and if an effective immediately upon the filing of the Notice of Emergency Adop- area in a mixed use building is provided CO detection in accordance with tion are necessary to assure that the Uniform Code will continue to include the requirements of section R313.4 of the 2010 RCNYS or section 610 of the provisions contemplated by subdivision 5-d of Executive Law § 378 the 2010 FCNYS, as applicable, such area need not be provided with ad- between November 20, 2015 and the date on which the Notice of Adop- ditional CO protection under this section 1228.4. tion relating to the adoption of this rule as a permanent measure will ap- Subdivision (m) (“Interconnection in mixed used buildings”) provides pear in the State Register. that in the case of a new “mixed use building,” the CO detection required At its meeting held on November 2, 2015, the Code Council also found by section 1228.4 must be interconnected with the CO detection required and determined that making this rule effective immediately upon the filing by section R313.4 of the 2010 RCNYS or section 610 of the 2010 FCNYS, of the Notice of Emergency Adoption, as authorized by Executive Law as applicable. § 378(15)(a), is required to protect health, safety and security because, in Subdivision (n) (“Incorporation by reference”) provides for the the absence of such a finding and determination, the amendment of the incorporation by reference of the 2010 BCNYS, the 2010 FCNYS, and Uniform Code to be implemented by this rule would not become effective NFPA 720 in section 1228.4. until 90 days after publication of the Notice of Emergency Adoption and, Subdivision (o) (“Effective date”) provides that section 1228.4 will for the reasons stated above, this rule must become effective on November take effect on June 27, 2015. 20, 2015.

55 Rule Making Activities NYS Register/December 9, 2015

2. Executive Law § 377(1) contains a carbon monoxide source, is served by an HVAC system that Pursuant to Section 377(1) of the Executive Law, the Secretary of State includes a carbon monoxide-producing component, or is adjacent to a ga- has reviewed the amendment of the Uniform Code to be implemented by rage or other motor-vehicle-related occupancy. In general, each story in a this rule, has found that said amendment effectuates the purposes of Article commercial building will be a “detection zone.” 18 of the Executive Law, and has approved said amendment. Costs to regulated parties for compliance with this rule will vary Summary of Regulatory Impact Statement depending on the size of such building, the number of carbon monoxide This rule amends the State Uniform Fire Prevention and Building Code sources within the buildings, the wiring within the building, and the type (Uniform Code) by adding a new section 1228.4 to 19 NYCRR Part 1228 of carbon monoxide detection (carbon monoxide alarms or a carbon mon- (Additional Uniform Code Provisions). New section 1228.4 (entitled oxide detection system) the owner chooses to provide. The Department “Carbon Monoxide Detection in Commercial Buildings”) requires the in- estimates that battery-powered carbon monoxide alarms cost approxi- stallation of carbon monoxide detecting devices in every commercial mately $50 (including installation costs). When carbon monoxide alarms building (including but not limited to every building containing one or are installed in new commercial buildings, the alarms must be hard-wired more restaurants) if such building has an attached garage or contains any units with battery backup. The Department estimates that the total cost appliance, equipment, device or system that may emit carbon monoxide. purchasing and installing hard-wired carbon monoxide alarms with bat- 1. STATUTORY AUTHORITY. tery backup will be approximately $125 per unit. Lastly, this rule will This rule is authorized by Executive Law § 377(1), which authorizes permit installation of a carbon monoxide detection system in lieu of carbon the State Fire Prevention and Building Code Council (Code Council) to monoxide alarms. The total cost of purchasing and installing one detector amend the Uniform Code from time to time, and by new subdivision (5-d) and one notification appliance (a necessary component of the carbon mon- of Executive Law § 378, as added by Chapter 541 of the Laws of 2014. oxide detection system) will be approximately $348. In addition, a carbon New subdivision (5-d) provides that the Uniform Code must include “stan- monoxide detection system requires a control unit. The Department dards for installation of carbon monoxide detecting devices requiring that estimates that the cost of purchasing and installing a carbon monoxide the owner of every building that contains one or more restaurants and the detection system control unit will be approximately $1,100. owner of every commercial building in the state shall have installed in This rule provides that carbon monoxide alarms and carbon monoxide such building and shall maintain operable carbon monoxide detecting de- detection systems must be maintained in an operative condition at all vice or devices of such manufacture, design and installation standards as times, shall be replaced or repaired where defective, and shall be replaced are established by the [Code Council]. Carbon monoxide detecting de- when they cease to operate as intended. The on-going costs of complying vices shall only be required if the restaurant or commercial building has with this rule will include the cost of maintaining carbon monoxide alarms appliances, devices or systems that may emit carbon monoxide or has an and carbon monoxide detection systems in operative condition. attached garage.” Costs to the Department of State, the State, and Local Governments 2. LEGISLATIVE OBJECTIVES. The Department anticipates that neither the Department nor the State Under current New York law, one and two family dwellings and apart- nor the local governments in the State will incur any significant costs for ments must be equipped with carbon monoxide detectors, but no such the implementation or continued administration of this rule, except as requirement exists for restaurants and commercial buildings. The absence follows: of detection devices in nonresidential occupancies has contributed to in- First, the Department will provide instruction and technical assistance stances of illness and death among patrons and employees. Chapter 541 of regarding new section 1228.4 and its requirements to code enforcement the Laws of 2014 amended Executive Law § 378 to require that the officials and to regulated parties. The Department anticipates that it will Uniform Code include standards for carbon monoxide detection in com- be able to use its existing staff to perform these functions. mercial buildings and every building that contains one or more restaurants. Second, cities, towns, villages, counties, and State agencies responsible By requiring that restaurants and commercial buildings follow the same for administration and enforcement of the Uniform Code will be required standards as residences, the Legislature demonstrates that its objectives (1) to see that their code enforcement personnel receive training on new are to reduce the number of deaths and injuries caused by carbon monox- section 1228.4 and its requirements, and (2) to enforce these new ide poisoning, and to provide safer environments for customers and provisions. employees. Third, the State, which owns commercial buildings, as well as any local 3. NEEDS AND BENEFITS. government that owns one or more commercial buildings, will be subject Carbon monoxide is an invisible, odorless gas that is generated by the to the new requirements to be imposed by new section 1228.4 and will be incomplete combustion of carbonaceous fuels such as fuel oil, natural gas, required to comply with those requirements. In this context, the State and kerosene and wood. In non fire situations, elevated carbon monoxide any local government that owns commercial buildings will be regulated levels may be caused by improperly installed or maintained fuel fired ap- parties, and will incur compliance costs similar to those discussed above pliances, motor vehicles operated in enclosed garages, or appliances for other regulated parties. intended for outdoor use being used indoors during power failures. As 5. PAPERWORK. carbon monoxide is not detectable by the senses, its presence and This rule requires carbon monoxide detection systems to comply with concentration can only be determined by instruments such as carbon mon- the Standard for the Installation of Carbon Monoxide (CO) Detection and oxide detection systems. Warning Equipment, published by the National Fire Protection Associa- According to the United States Consumer Product Safety Commission, tion (NFPA 720). If a regulated party elects to install a CO detection “on average, about 170 people in the United States die every year from system in lieu of CO alarms, such system must comply with NFPA 720. A CO produced by non-automotive consumer products. small business or local government that elects to install a CO detection According to the Center for Disease Control and Prevention, there were system will be required to comply with the reporting and recordkeeping 68,316 non-fire-related CO exposures reported to poison centers between requirements specified in NFPA 720 Sections 4.4.2.3, 4.14.2, 8.2.1.5, the years 2000 and 2009. (The Center for Disease Control and Prevention, 8.2.3, 8.6.1, and 8.6.2.2. NFPA 720 provides standardized forms to be Carbon Monoxide Exposures United States, 2000-2009, August 5, 2011, used for this recordkeeping. http://www.cdc.gov/mmwr/preview/ mmwrhtml/mm6030a2.htm.) 6. LOCAL GOVERNMENT MANDATES. The Memorandum in Support of the bill enacting Executive Law This rule imposes no new programs, services, duties and responsibili- § 378(5-d) states that the failure to mandate carbon monoxide detectors in ties upon Local Governments, except as follows: commercial buildings has contributed to cases of illness and death among First, any Local Government that owns any existing commercial build- patrons and employees. ing or constructs any new commercial building will be required to install This rule implements Executive Law § 378(5-d) by requiring the instal- carbon monoxide alarm(s) or a carbon monoxide detection system in such lation of CO detecting devices in commercial buildings. building. 4. COSTS. Second, cities, towns, villages, and counties charged by Executive Law Cost to regulated parties. Section 381 with the responsibility of administering and enforcing the Regulated parties (owners of new and existing commercial buildings Uniform Code will be required to enforce the provisions of new section that [1] contain one or more carbon monoxide sources and/or [2] contain a 1228.4. Such cities, towns, villages, and counties will be required to see garage or other motor-vehicle related occupancy and/or [3] are attached to that their code enforcement personnel receive training on new section a garage or other motor-vehicle-related occupancy) are required to install 1228.4. carbon monoxide detection (carbon monoxide alarms or carbon monoxide 7. DUPLICATION. detection systems) in the places specified in this rule, to maintain those This rule does not duplicate, overlap or conflict with any other legal carbon monoxide alarms or carbon monoxide detection systems, and to requirement of the Federal or State government known to the Department. replace those carbon monoxide alarms or carbon monoxide detection 8. ALTERNATIVES. systems when they cease to operate as intended. The rule does not permit the use of plug in units or battery-powered In each commercial building where carbon monoxide detection is carbon monoxide alarms in new commercial buildings. The Department required, such detection must be located in each “detection zone” that considered the alternative of allowing the use of battery-powered carbon

56 NYS Register/December 9, 2015 Rule Making Activities monoxide alarms in new commercial buildings. This alternative was required to comply with the reporting and recordkeeping requirements rejected because the Department determined that the additional cost as- specified in NFPA 720 Sections 4.4.2.3, 4.14.2, 8.2.1.5, 4.4.3, 8.2.3, 8.6.1, sociated with requiring hard-wired carbon monoxide alarms in new build- and 8.6.2.2. NFPA 720 provides standardized forms to be used for this ings was minimal (compared to the additional cost associated with requir- recordkeeping. ing hard-wired alarms in existing buildings). Other Compliance Requirements The rule permits a building owner to choose between installing carbon Small businesses and local governments that own a new or existing monoxide alarms or a carbon monoxide detection system. The Depart- commercial building that contains a CO source, contains a garage or other ment considered the alternative of requiring the installation of a carbon motor-vehicle-related occupancy, or is attached to a garage or other motor- monoxide detection system in all commercial buildings. This alternative vehicle-related occupancy will be required to install CO detection (CO was rejected because it would unnecessarily increase the cost of bringing alarms or a CO detection system) in the places specified in this rule, to commercial buildings, particularly existing commercial buildings, into maintain those CO alarms or CO detection systems, and to replace those compliance with the new statutory mandate. CO alarms or CO detection systems when they cease to operate as The rule requires carbon monoxide detection in each detection zone intended. where at least one of the “triggering conditions” exists. The rule also In each commercial building where CO detection is required, such requires carbon monoxide detection in more than one location in larger detection must be located in each “detection zone” (as that term is defined (over 10,000 square feet) detection zones. The Department considered in the rule) that contains a CO source, is served by an HVAC system that alternatives such as requiring carbon monoxide detection only in the vicin- includes a CO-producing component, or is adjacent to a garage or other ity of each carbon monoxide source, allowing plug-in units in new and motor-vehicle-related occupancy. existing buildings, and allowing alternative listing entities. These alterna- As a general rule, when CO detection must be provided in a detection tives were rejected because the Department determined that such reduced zone, the CO detection must be placed in a central location within the coverage would not have provided the increased level of safety contem- detection zone. If the detection zone is larger than 10,000 square feet, ad- plated by the Legislature when it added a new subdivision (5-d) to section ditional CO detection must be placed in such additional locations as may 378 of the Executive Law. be necessary to assure that no point in the detection zone is more than 100 9. FEDERAL STANDARDS. feet from CO detection. This rule parallels similar federal standards for carbon monoxide In an existing commercial building (or in a new or existing commercial exposure. The federal standards apply to buildings consisting of employ- building without commercial electric power), CO alarms powered by 10- ees who are employed in a business that affects commerce (CFR Title 29, year batteries are permitted.1 When CO alarms are installed in new com- Part 1910, Subpart Z, § 1910.1000: Air contaminants). However, although mercial buildings, the alarms must be hard-wired units with battery these standards are similar, they measure carbon monoxide exposures dif- backup. ferently from section 1228.4, therefore making it difficult to conclude This rule also permits installation of a CO detection system in lieu of whether they exceed these standards. For example, CFR Title 29, Part CO alarms. A CO detection system (1) must comply with NFPA 720, (2) 1910, Subpart Z, § 1910.1000 limits an employee’s exposure to 50 ppm must have a detector at each location where a CO alarm otherwise would over an 8-hour weighted average, comparable to a typical workday. By have been required, and (3) must have a notification appliance at each lo- contrast, carbon monoxide alarms required by section 1228.4 sound an cation specified in NFPA 720 or, in the alternative, at each location where alarm after detecting higher concentrations - 100 ppm or 400 ppm -over a a CO alarm otherwise would have been required. much shorter period of time. When a CO alarm is installed in a normally unoccupied detection zone 10. COMPLIANCE SCHEDULE. in a new commercial building, that alarm must be interconnected with a Regulated parties that own existing commercial buildings will be able CO alarm that is placed in an adjacent and normally occupied detection to comply with this rule by purchasing and installing battery-operated zone; and carbon monoxide alarms of the type currently on the market. The Depart- In the case of a new commercial building that (i) has an occupant load ment anticipates that regulated parties that own existing commercial build- of 31 or more and (ii) is classified, in whole or in part, as Educational ings should be able to comply with this rule by the end of the “transition Group E under Chapter 3 of the 2010 Building Code of New York State period” (June 27, 2015 through June 27, 2016) established by this rule. (BCNYS), this rule provides that CO alarm signals must be automatically Regulated parties constructing new commercial buildings will be able transmitted to an approved on-site location that is normally staffed by to comply with this rule by installing hard-wired carbon monoxide alarms school personnel during normal school hours. or carbon monoxide detection systems as part of the construction process. CO detection systems shall be connected to control units and off- Summary of Regulatory Flexibility Analysis premises signal transmission in accordance with the requirements of the 1. EFFECT OF RULE. BCNYS. This rule implements subdivision (5-d) of Executive Law § 378, as 3. PROFESSIONAL SERVICES. added by Chapter 541 of the Laws of 2014. Specifically, this rule amends If a small business or local government elects to install a CO detection the State Uniform Fire Prevention and Building Code (Uniform Code) by system (in lieu of CO alarms), the small business or local government adding a new section 1228.4 (entitled “Carbon Monoxide Detection in must hire service personnel with the qualifications and experience listed in Commercial Buildings”) to 19 NYCRR Part 1228. New section 1228.4 NFPA 720 Section 8.3 in order to install and maintain the CO detection requires the installation of carbon monoxide (CO) detecting devices in all system. new and existing commercial buildings. In addition, in certain situations a small business or local government Types and Estimated Number of Small Businesses and Local Govern- that elects to install a CO detection system may be required to hire a person ments Affected holding an appropriate license under General Business Law Article 6-D to This rule will affect any small business or local government that owns install, service or maintain such CO detection system. an existing commercial building or constructs a new commercial building. 4. COMPLIANCE COSTS. In addition, since landlords typically recover building-related costs by Initial Costs of Compliance increasing rents, this rule will indirectly affect any small business or local The initial capital costs of complying with the rule will include the cost government that rents space in a commercial building. The Department of of purchasing and installing the CO alarms or CO detection systems. Costs State (DOS) is not able to estimate the number of small businesses and lo- to regulated parties for compliance with this rule will vary depending on cal governments that will be directly or indirectly affected by this rule; the size of such building, the number of CO sources within the buildings, however, DOS anticipates that most small businesses and local govern- the wiring within the building, and the type of CO detection (CO alarms or ments will be directly or indirectly affected by this rule. a CO detection system) the owner chooses to provide.2 In addition, since this rule adds provisions to the Uniform Code, the In an existing commercial building (or in a new or existing commercial activities of each local government that is responsible for administering building without commercial electric power), CO alarms powered by 10- and enforcing the Uniform Code will be affected by this rule. DOS year batteries are permitted. DOS estimates that the cost of purchasing and estimates that approximately 1,604 local governments (mostly cities, installing such battery-powered CO alarms is approximately $50. towns and villages, as well as several counties) are responsible for When CO alarms are installed in new commercial buildings, the alarms administering and enforcing the Uniform Code. must be hard-wired units with battery backup. DOS estimates that total 2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE cost purchasing and installing hard-wired CO alarms with battery backup REQUIREMENTS. will be approximately $125 per unit. Reporting and Recordkeeping Requirements This rule permits installation of a CO detection system in lieu of CO If a regulated party elects to install a CO detection system in lieu of CO alarms. A CO detection system must comply with NFPA 720; must have a alarms, such system must comply with the Standard for the Installation of detector at each location where a CO alarm otherwise would have been Carbon Monoxide (CO) Detection and Warning Equipment, published by required; and must have a notification appliance at each location specified the National Fire Protection Association (NFPA 720). A small business or in NFPA 720 or, in the alternative, at each location where a CO alarm local government that elects to install a CO detection system will be otherwise would have been required. DOS estimates that the cost of each

57 Rule Making Activities NYS Register/December 9, 2015 detector in a CO detection system will be approximately $55, the cost of mercial electric power); providing exemptions for commercial buildings each notification appliance used in a CO detection system will be ap- that are (1) classified as Storage Group S or Utility and Miscellaneous proximately $78, the cost of installing one detector and one notification Group U and occupied only occasionally for building or equipment main- appliance will be approximately $215, and the total cost of purchasing and tenance, (2) “canopies” (as defined in the 2010 FCNYS), or (3) completely installing one detector and one notification appliance will be approxi- unoccupied and secured; providing a number of exceptions for certain mately $348. In addition, a CO detection system requires a control unit. detection zones that would otherwise require CO detection; and establish- DOS estimates that the cost of purchasing and installing a CO detection ing a “transition period” to provide owners of existing commercial build- system control unit will be approximately $1,100.3 The estimated installa- ings with additional time to achieve full compliance. tion costs specified in this paragraph include the cost of installing the Providing exemptions from coverage by the rule, or any part thereof, components and the cost of interconnecting the components. for commercial buildings owned by small businesses or local governments In certain situations, a CO alarm installed in a new commercial building would not be consistent with legislative objectives and would endanger must be a “multiple station” alarm (i.e., must be interconnected with at public health, safety, and general welfare. least one other CO alarm in the building). DOS estimates that (1) the 7. SMALL BUSINESS AND LOCAL GOVERNMENT median price of multiple station CO alarms that are hard-wired and have PARTICIPATION. battery backup to be approximately $38 per unit, (2) the cost of installing DOS notified interested parties throughout the State, including inter- such alarms will be approximately $90 per unit, and (3) the cost of provid- ested parties in rural areas, of the proposed adoption of a prior version of ing interconnection between an alarm in a normally unoccupied detection this rule by means of notices posted on DOS’s website and notices zone and an alarm in an adjacent, normally occupied detection zone will published in Building New York, a monthly electronic news bulletin be approximately $150. covering topics related to the Uniform Code and the construction industry. In the case of a new commercial building classified, in whole or in part, The prior version of this rule was proposed for adoption by Notice of as Educational Group E under the 2010 BCNYS, CO alarm signals must Emergency Adoption and Proposed Rule Making published in the State be automatically transmitted to an approved on-site location that is Register on July 15, 2015. DOS and the Code Council made several non- normally staffed by school personnel during normal school hours. DOS substantial changes to the prior version of this rule in response to public estimates that the median price of multiple station CO alarms that are comments received during the public comment period. This rule (i.e., the hard-wired and have battery backup will be approximately $38 per unit; rule now being adopted) reflects those non-substantial changes. (2) the cost of installing such alarms will be approximately $90 per unit; 8. VIOLATIONS AND PENALTIES ASSOCIATED WITH and (3) the cost of providing interconnection between the detection zone VIOLATIONS. (classroom) to an on-site location up to 100 feet away will be ap- The rule includes a subdivision that provides, in effect, a “cure period proximately $250. or other opportunity for ameliorative action, the successful completion of This rule provides that CO detection systems must be “monitored” (i.e., which will prevent the imposition of penalties on the party or parties connected to control units and off-premises signal transmission). If a CO subject to enforcement” in this rule. Subdivision (p) of new section 1228.4 detection system is installed in a building that does not have a fire alarm provides that during the “transition period” (June 27, 2015 to June 27, system, DOS estimates that the cost of purchasing and installing the 2016), the owner of an existing commercial building shall not be deemed control unit required to provide “monitoring” of the CO detection system to be in violation of section 1228.4 if the owner provides the authority will be approximately $1,100. having jurisdiction with a written statement certifying that such owner is On-going Costs of Compliance attempting in good faith to install carbon monoxide detection that complies This rule provides that CO alarms and CO detection systems must be with the requirements of new section 1228.4 in such owner’s existing maintained in an operative condition at all times, shall be replaced or commercial building as quickly as practicable. repaired where defective, and shall be replaced when they cease to operate All owners of existing commercial buildings will be required to have as intended. such carbon monoxide detection fully installed and operational by the end In the case of a battery-powered CO alarm, such maintenance would of the transition period. include vacuuming the alarm cover to remove accumulated dust (typically ——————————— one a month) and replacing the alarm at the conclusion of its 10-year 1 An “existing commercial building” is defined in this rule as a com- lifespan. mercial building constructed before December 31, 2015 (meaning either In the case of a hard-wired CO alarm with battery backup, the required that the original construction of the building was completed on or before maintenance would include vacuuming the alarm cover to remove ac- December 31, 2015, or that the application for the building permit for cumulated dust (typically one a month) and replacing the backup battery as required (although it is anticipated that backup batteries in such alarms the original construction of the building was filed on or before December should not need to be replaced during the anticipated life of the alarm). 31, 2015). A “new commercial building” is defined in this rule as any In addition, most manufacturers recommend that their CO alarms commercial building that is not an existing commercial building. (whether battery-powered or hard-wired) be checked using the alarm’s 2 Cost estimates set forth in this section are based on prices quoted on the “test” button on a periodic basis (typically once a week) and replaced on a websites of several manufacturers of carbon monoxide alarms and periodic basis (typically once every five years). carbon monoxide detection systems. See, for example, http:// Regulated parties constructing new commercial buildings will be able www.homedepot.com/p/Kidde-120-Volt-Hardwire-Inter-Connectable- to comply with this rule by installing hard-wired CO alarms or CO detec- Carbon-Monoxide-Alarm-with-Battery-Backup-KN-COB-IC/ tion systems as part of the construction process. This rule will require CO 202281774?N=5yc1vZbmgkZ1z0uzse. Estimated installation costs are detection systems to comply with NFPA 720. based on the time estimated to perform an installation multiplied by an Variations in Costs assumed hourly rate of $70. Any variation in compliance costs for small businesses or local govern- 3 In many situations, a single control panel can control both a carbon ments is likely to depend more on the number and size of commercial monoxide detection system and a fire alarm system. Therefore, in a buildings owned by the small business or local government, not on the type or size of the small business or local government. building where a fire alarm system is required by other provisions of the 5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY. Uniform Code, there should be little or no additional cost associated It is economically and technologically feasible for small businesses and with providing a control panel for the carbon monoxide detection local governments to comply with new section 1228.4. system. Regulated parties that own existing commercial buildings will be able Summary of Rural Area Flexibility Analysis to comply with this rule by purchasing and installing battery-operated CO 1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS. alarms of the type currently on the market. DOS anticipates that regulated This rule amends the State Uniform Fire Prevention and Building Code parties that own existing commercial building should be able to comply (Uniform Code) by adding a new section 1228.4 to 19 NYCRR Part 1228. with this rule by the end of the “transition period” (June 27, 2015 through New section 1228.4 requires the installation of carbon monoxide (CO) June 27, 2016) established by this rule. detecting devices in all new and existing commercial buildings. Since the Regulated parties constructing new commercial buildings will be able Uniform Code applies in all areas of the State (other than New York City), to comply with this rule by installing hard-wired CO alarms or CO detec- this rule applies in all rural areas of the State. tion systems as part of the construction process. 2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE No new technology need be developed for compliance. REQUIREMENTS. 6. MINIMIZING ADVERSE IMPACT Reporting and Recordkeeping Requirements The rule minimizes potential adverse economic impacts on regulated If a regulated party elects to install a CO detection system in lieu of CO parties by providing several alternative means of compliance (including alarms, such system must comply with the Standard for the Installation of the option of installing battery powered carbon monoxide alarms in exist- Carbon Monoxide Detection and Warning Equipment, published by the ing commercial buildings and in commercial buildings with no com- National Fire Protection Association (NFPA 720). A small business or lo-

58 NYS Register/December 9, 2015 Rule Making Activities cal government that elects to install a CO detection system will be required cost of each notification appliance used in a CO detection system will be to comply with the reporting and recordkeeping requirements specified in approximately $78, (3) the cost of installing one detector and one notifica- NFPA 720 Sections 4.4.2.3, 4.14.2, 8.2.1.5, 4.4.3, 8.2.3, 8.6.1, and 8.6.2.2. tion appliance will be approximately $215, and (4) the total cost of NFPA 720 provides standardized forms to be used for this recordkeeping. purchasing and installing one detector and one notification appliance will Other Compliance Requirements. be approximately $348. In addition, a CO detection system requires a The owner of a new or existing commercial building that contains a CO control unit. DOS estimates that the cost of purchasing and installing a CO source, contains a garage or other motor-vehicle-related occupancy, or is detection system control unit will be approximately $1,100.3 The estimated attached to a garage or other motor-vehicle-related occupancy will be installation costs specified in this paragraph include the cost of installing required to install CO detection (CO alarms or a CO detection system) in the components and the cost of interconnecting the components. the places specified in this rule, to maintain those CO alarms or CO detec- In certain situations, a CO alarm installed in a new commercial building tion systems, and to replace those CO alarms or CO detection systems must be a “multiple station” alarm (i.e., must be interconnected with at when they cease to operate as intended. least one other CO alarm in the building). DOS estimates that (1) the In each commercial building where CO detection is required, such median price of multiple station CO alarms that are hard-wired and have detection must be located in each “detection zone” that contains a CO battery backup to be approximately $38 per unit, (2) the cost of installing source, is served by an HVAC system that includes a CO-producing such alarms will be approximately $90 per unit, and (3) the cost of provid- component, or is adjacent to a garage or other motor-vehicle-related ing interconnection between an alarm in a normally unoccupied detection occupancy. zone and an alarm in an adjacent, normally occupied detection zone will As a general rule, when CO detection must be provided in a detection be approximately $150. zone, the CO detection must be placed in a central location within the In the case of a new commercial building classified, in whole or in part, detection zone. However, if the detection zone is larger than 10,000 square as Educational Group E, CO alarm signals must be automatically transmit- feet, additional CO detection must be placed in such additional locations ted to an approved on-site location that is normally staffed by school as may be necessary to assure that no point in the detection zone is more personnel during normal school hours. DOS estimates that the median than 100 feet from CO detection. price of multiple station CO alarms that are hard-wired and have battery In an existing commercial building (or in a new or existing commercial backup will be approximately $38 per unit; (2) the cost of installing such building without commercial electric power), CO alarms powered by 10- alarms will be approximately $90 per unit; and (3) the cost of providing year batteries are permitted.1 When CO alarms are installed in new com- interconnection between the detection zone (classroom) to an on-site loca- mercial buildings, the alarms must be hard-wired units with battery tion up to 100 feet away will be approximately $250. backup. This rule provides that CO detection systems must be “monitored” (i.e., This rule permits installation of a CO detection system in lieu of CO connected to control units and off-premises signal transmission). If a CO alarms. A CO detection system (1) must comply with NFPA 720, (2) must detection system is installed in a building that does not have a fire alarm have a detector at each location where a CO alarm otherwise would have system, DOS estimates that the cost of purchasing and installing the been required, and (3) must have a notification appliance at each location control unit required to provide “monitoring” of the CO detection system specified in NFPA 720 or, in the alternative, at each location where a CO will be approximately $1,100. alarm otherwise would have been required. On-going Costs of Compliance When a CO alarm is installed in a normally unoccupied detection zone This rule provides that CO alarms and CO detection systems must be in a new commercial building, that alarm must be interconnected with a maintained in an operative condition at all times, shall be replaced or CO alarm that is placed in an adjacent and normally occupied detection repaired where defective, and shall be replaced when they cease to operate zone; and as intended. In the case of a new commercial building that (i) has an occupant load In the case of a battery-powered CO alarm, such maintenance would of 31 or more and (ii) is classified, in whole or in part, as Educational include vacuuming the alarm cover to remove accumulated dust (typically Group E under Chapter 3 of the 2010 Building Code of New York State one a month) and replacing the alarm at the conclusion of its 10-year (BCNYS), this rule provides that CO alarm signals must be automatically lifespan. transmitted to an approved on-site location that is normally staffed by In the case of a hard-wired CO alarm with battery backup, the required school personnel during normal school hours. maintenance would include vacuuming the alarm cover to remove ac- This rule requires CO detection systems to be connected to control units cumulated dust (typically one a month) and replacing the backup battery and off-premises signal transmission in accordance with the requirements as required (although it is anticipated that backup batteries in such alarms of the BCNYS. should not need to be replaced during the anticipated life of the alarm). 3. PROFESSIONAL SERVICES. In addition, most manufacturers recommend that their CO alarms If the owner of a commercial building elects to install a CO detection (whether battery-powered or hard-wired) be checked using the alarm’s system in lieu of CO alarms, the building owner must hire service person- “test” button on a periodic basis (typically once a week) and replaced on a nel with the qualifications and experience listed in NFPA 720 Section 8.3 periodic basis (typically once every five years). in order to install and maintain the CO detection system. Regulated parties constructing new commercial buildings will be able In addition, in certain situations an owner of a commercial building to comply with this rule by installing hard-wired CO alarms or CO detec- who elects to install a CO detection system may be required to hire a tion systems as part of the construction process. This rule will require CO person holding an appropriate license under General Business Law Article detection systems to comply with NFPA 720. 6-D to install, service or maintain such CO detection system. Variations in Costs 4. COMPLIANCE COSTS. Any variation in compliance costs for public and private entities in rural Initial Costs of Compliance areas is likely to depend on the number and size of commercial buildings The initial capital costs of complying with the rule will include the cost owned by a public or private entity, and not on differences between types of purchasing and installing the CO alarms or CO detection systems. Costs of public and private entities in rural areas. to regulated parties for compliance with this rule will vary depending on 5. MINIMIZING ADVERSE IMPACT. the size of such building, the number of CO sources within the building, The rule minimizes potential adverse economic impacts on regulated the wiring within the building, and the type of CO detection (CO alarms or parties by: a CO detection system) the owner chooses to provide.2 (1) providing several alternative means of compliance (including the In an existing commercial building (or in a new or existing commercial option of installing battery powered carbon monoxide alarms in existing building without commercial electric power), CO alarms powered by 10- commercial buildings and in commercial buildings with no commercial year batteries are permitted. The Department of State (DOS) estimates electric power); that the cost of purchasing and installing such battery-powered CO alarms (2) providing exemptions for commercial buildings that are (i) classi- is approximately $50. fied as Storage Group S or Utility and Miscellaneous Group U and oc- When CO alarms are installed in new commercial buildings, the alarms cupied only occasionally for building or equipment maintenance, (ii) must be hard-wired units with battery backup. DOS estimates that total “canopies” (as defined in the 2010 FCNYS), or (iii) completely unoccu- cost purchasing and installing hard-wired CO alarms with battery backup pied and secured; will be approximately $125 per unit. (3) providing a number of exceptions for certain detection zones that This rule permits installation of a CO detection system in lieu of CO would otherwise require CO detection; and alarms. A CO detection system must comply with NFPA 720; must have a (4) establishing a “transition period” to provide owners of existing com- detector at each location where a CO alarm otherwise would have been mercial buildings with additional time to achieve full compliance. required; and must have a notification appliance at each location specified This rule implements Executive Law § 378(5-d), which requires instal- in NFPA 720 or, in the alternative, at each location where a CO alarm lation of CO detecting devices in all commercial buildings that contains otherwise would have been required. DOS estimates that (1) the cost of any appliance, equipment, device or system that may emit CO or has an each detector in a CO detection system will be approximately $55, (2) the attached garage. Executive Law § 378(5-d) makes no distinction between

59 Rule Making Activities NYS Register/December 9, 2015 commercial buildings located in rural areas and commercial buildings lo- commercial buildings and, consequently, this rule should have no cated in other areas of the State. Executive Law § 378(5-d) does not au- substantial adverse impact on jobs and employment opportunities related thorize the establishment of differing compliance requirements or to the construction of new commercial buildings. timetables for commercial buildings located in rural areas. Providing The Uniform Code has contained provisions requiring installation of exemptions from coverage by the rule, or any part thereof, for commercial carbon monoxide alarms in residential buildings since 2002. The current buildings located in rural areas would not be consistent with legislative requirements relating to installation of alarms in residential buildings are objectives and would endanger public health, safety, and general welfare. not changed by this rule. Therefore, this rule should have no substantial 6. RURAL AREA PARTICIPATION. adverse impact on jobs and employment opportunities related to the DOS notified interested parties throughout the State, including inter- construction of new residential buildings. ested parties in rural areas, of the proposed adoption of a prior version of this rule by means of notices posted on DOS’s website and notices NOTICE OF ADOPTION published in Building New York, a monthly electronic news bulletin covering topics related to the Uniform Code and the construction industry. Installation of Carbon Monoxide Detecting Devices in The prior version of this rule was proposed for adoption by Notice of Commercial Buildings Emergency Adoption and Proposed Rule Making published in the State I.D. No. DOS-28-15-00004-A Register on July 15, 2015. DOS and the Code Council made several non- substantial changes to the prior version of this rule in response to public Filing No. 1010 comments received during the public comment period. This rule (i.e., the Filing Date: 2015-11-20 rule now being adopted) reflects those non-substantial changes. Effective Date: 2015-12-09 1 An “existing commercial building” is defined in this rule as a commercial building constructed before December 31, 2015 (meaning either PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- that the original construction of the building was completed on or before cedure Act, NOTICE is hereby given of the following action: December 31, 2015, or that the application for the building permit for the original construction of the building was filed on or before December Action taken: Addition of section 1228.4 to Title 19 NYCRR. 31, 2015). A “new commercial building” is defined in this rule as any Statutory authority: Executive Law, sections 377(1) and 378(5-d) commercial building that is not an existing commercial building. Subject: Installation of carbon monoxide detecting devices in commercial 2 Cost estimates set forth in this section are based on prices quoted on the buildings. websites of several manufacturers of carbon monoxide alarms and Purpose: To amend the State Uniform Fire Prevention and Building Code carbon monoxide detection systems. See, for example, http:// (Uniform Code) by adding standards requiring the installation of carbon www.homedepot.com/p/Kidde-120-Volt-Hardwire-Inter-Connectable- monoxide detecting devices in every commercial building (including but Carbon-Monoxide-Alarm-with-Battery-Backup-KN-COB-IC/ not limited to every building that contains one or more restaurants), if 202281774?N=5yc1vZbmgkZ1z0uzse. Estimated installation costs are such building has appliances, devices or systems that may emit carbon based on the time estimated to perform an installation multiplied by an monoxide or has an attached garage, and to establish manufacture, design assumed hourly rate of $70. and installation standards for such carbon monoxide detecting devices. 3 In many situations, a single control panel can control both a carbon Substance of final rule: This rule adds new section 1228.4 to Part 1228 of monoxide detection system and a fire alarm system. Therefore, in a 19 NYCRR. New section 1228.4 is part of the State Uniform Fire Preven- tion and Building Code (the Uniform Code). The provisions of new sec- building where a fire alarm system is required by other provisions of the tion 1228.4 (entitled “Carbon Monoxide Detection in Commercial Build- Uniform Code, there should be little or no additional cost associated ings”) are summarized as follows: with providing a control panel for the carbon monoxide detection Subdivision (a) (“Introduction”) introduces the new section, which system. implements standards and requirements regarding carbon monoxide Job Impact Statement (“CO”) detection in certain new and existing commercial. The Department of State has concluded after reviewing the nature and Subdivision (b) (“Definitions”) defines certain terms used in section purpose of the rule that it will not have a “substantial adverse impact on 1228.4, including: carbon monoxide source; carbon monoxide-producing jobs and employment opportunities” (as that term is defined in section HVAC system, classroom, commercial building, detection zone, existing 201-a of the State Administrative Procedures Act) in New York. commercial building, and new commercial building. This rule amends the State Uniform Fire Prevention and Building Code Subdivision (c) (“Commercial buildings required to have carbon mon- (the Uniform Code) to require that the installation of carbon monoxide oxide detection”) provides that as a general rule, CO detection must be detecting devices (carbon monoxide alarms or carbon monoxide detection provided in every commercial building that (i) contains any CO source systems) in all commercial buildings that contain a carbon monoxide and/or (ii) is attached to a garage and/or (iii) is attached to any other motor- source, contain a garage or other motor-vehicle-related occupancy and/or vehicle-related occupancy. These requirements shall apply without regard are attached to a garage or other motor-vehicle-related occupancy. This to whether such commercial building is an existing commercial building amendment is required to satisfy the requirements of subdivision (5-d) of or a new commercial building and without regard to whether such com- section 378 of the Executive Law, as added by Chapter 541 of the Laws of mercial building shall or shall not have been offered for sale. However, 2014. CO detection shall not be required in: This rule requires the installation of carbon monoxide detecting devices (1) a commercial building that is classified, in its entirety, in Storage in “existing commercial buildings” (defined in this rule as a commercial Group S or Utility and Miscellaneous Group U under Chapter 3 of the building constructed prior to January 1, 2016). However, potential adverse 2010 Building Code of New York State (the 2010 BCNYS) and occupied economic impact on regulated parties is minimized by the provisions of only occasionally and only for building or equipment maintenance; the rule that allow the use of battery powered carbon monoxide alarms in (2) a commercial building that is a “canopy” (as that term is defined in existing commercial buildings. (The rule also permits the use of battery the 2010 Fire Code of New York State); or powered carbon monoxide alarms in new and existing commercial build- (3) a commercial building that is completely unoccupied, during the pe- ings without a commercial electric power.) riod when such building is completely unoccupied and other stated condi- This rule also requires the installation of carbon monoxide detecting de- tions are satisfied. vices in new commercial buildings. However, potential adverse economic Subdivision (d) (“Detection zones required to be provided with carbon impact on regulated parties is minimized by the provisions of the rule that monoxide detection”) specifies the detection zones where carbon monox- permit the installation of carbon monoxide alarms even in new commercial ide detection must be provided. In general, CO detection is required in buildings (although carbon monoxide alarms installed in new commercial each detection zone in which at least one “triggering condition” exists. buildings must be hard-wired, with battery backup). Regulated parties are “Triggering Condition 1” is the presence of any CO source in the detec- permitted to install carbon monoxide detection systems; in the case of a tion zone. building that is required by other, already existing provisions of the “Triggering Condition 2” is the presence in a detection zone of a duct Uniform Code to have a fire alarm system, the additional cost of adding a opening or other outlet from a CO-producing HVAC system (subject to carbon monoxide detection system is expected to be modest. In any event, certain exceptions stated in the full Text of the rule). whether an owner chooses to install hard-wired carbon monoxide alarms “Triggering Condition 3” is the presence of a garage or other motor- with battery backup or a carbon monoxide detection system in a new com- vehicle-related occupancy in location that is adjacent to a detection zone mercial building, the costs of purchasing, installing and maintaining the (subject to certain exceptions stated in the full Text of the rule). carbon monoxide detecting devices required by this rule is expected to be If a detection zone other than a classroom (as defined in subdivision b) insignificant in comparison to the total cost of construction. Therefore, that would otherwise require CO detection has ambient conditions that this rule should have no substantial adverse impact on construction of new would, under normal conditions and with all required ventilation and

60 NYS Register/December 9, 2015 Rule Making Activities exhaust systems installed and operating properly, activate CO detection control units and off-premises signal transmission”) provides that CO devices, CO detection shall not be required in that detection zone provided detection systems shall be connected to control units and off-premises that an alternative safety plan for the commercial building in which such signal transmission. All CO detection systems installed in accordance detection zone is located shall have been approved by the authority having with subdivision (h) of section 1228.4 shall have off-premises signal trans- jurisdiction and implemented. mission in accordance with NFPA 720. All CO detection systems in new If a detection zone (other than a classroom) that would otherwise require commercial buildings that are required by section 903 or section 907 of CO detection is “open” (without sidewalls or drops) on 50 percent or more the 2010 Fire Code of New York State to have a fire alarm control panel of its perimeter, and there is no occupiable area within such detection zone installed shall have off-premises signal transmission in accordance with that is not open on 50 percent or more of its perimeter, CO detection shall NFPA 720. CO detection systems shall not activate a fire signal to a fire not be required in that detection zone. alarm control panel. CO detection systems shall not activate any notifica- Subdivision (e) (“Placement of carbon monoxide detection”) specifies tion appliance that announces a fire alarm or any other alarm that is not that places within a detection zone where the CO detection devices must distinctive from a fire notification as required by NFPA 72. Where be located. In the case of a detection zone having an area less than 10,000 notification of CO detection system is permitted to be transmitted to ap- square feet, the CO detection must be placed in a central location within proved locations, at least one approved notification appliance shall be such detection zone. In the case of a detection zone having an area 10,000 provided within every building that transmits a signal to an approved square feet or larger, CO detection must be placed in a central location location. within such detection zone and at such additional locations within such Subdivision (l) (“Other Uniform Code provisions relating to carbon detection zone as may be necessary to assure that no point in the detection monoxide detection”) provides that section 1228.4 does not repeal, over- zone is more than 100 feet from CO detection. In certain cases (more fully ride, modify or otherwise affect any other provision of the Uniform Code described in the full Text of the rule), the additional CO detection will not (including but not necessarily limited to section R313.4 of the 2010 be required in a detection zone that is 10,000 square feet or larger. RCNYS and section 610 of the 2010 FCNYS) that requires CO detection Subdivision (f) (“Detection equipment”) provides that CO detection in any class of buildings, and that any building that is or becomes subject shall be provided by CO alarms complying with subdivision (g) or a CO to any such other provision must comply with such other provision. detection system complying with subdivision (h). Subdivision (l) further provides that in the case of a building that (1) is Subdivision (g) (“Carbon monoxide alarms”) specifies specifications subject to section R313.4 of the 2010 RCNYS or section 610 of the 2010 for CO alarms. In general, CO alarms must be hard-wired, with a battery FCNYS and (2) is also a “commercial building” that is subject to section backup. However, battery-powered CO alarms (powered by a 10-year bat- 1228.4 (a “mixed use building”) must comply with the requirements of tery) will be allowed in existing commercial building and in commercial section R313.4 of the 2010 RCNYS or section 610 of the 2010 FCNYS, as buildings without commercial electric power. In either case, CO alarms applicable, and, in addition, shall comply with the requirements of section must be listed in accordance with Underwriters Laboratory (UL) 2034. 1228.4. However, duplicative CO detection shall not be required, and if an Combination CO / smoke alarms shall not be deemed to satisfy the require- area in a mixed use building is provided CO detection in accordance with ments of this section 1228.4. The rule includes an exception that would al- the requirements of section R313.4 of the 2010 RCNYS or section 610 of low certain previously installed plug-in or cord-type CO alarms, certain the 2010 FCNYS, as applicable, such area need not be provided with ad- previously installed CO alarms powered by a battery with a life of less ditional CO protection under this section 1228.4. than 10-years, and certain previously installed combination CO / smoke Subdivision (m) (“Interconnection in mixed used buildings”) provides alarms to remain in place for the remainder of their useful lives. that in the case of a new “mixed use building,” the CO detection required In new commercial buildings, where a CO alarm is installed in a by section 1228.4 must be interconnected with the CO detection required normally unoccupied detection zone, such CO alarm must be intercon- by section R313.4 of the 2010 RCNYS or section 610 of the 2010 FCNYS, nected with a CO alarm that is placed in an adjacent and normally oc- as applicable. cupied detection zone. A sign that identifies and describes the location of Subdivision (n) (“Incorporation by reference”) provides for the each normally unoccupied detection zone that contains any such intercon- incorporation by reference of the 2010 BCNYS, the 2010 FCNYS, and nected CO alarm must be placed in the proximity of each CO alarm NFPA 720 in section 1228.4. installed in a normally occupied detection zone. Subdivision (o) (“Effective date”) provides that section 1228.4 will CO alarms must be installed in the locations specified in subdivisions take effect on June 27, 2015. (d) and (e) of section 1228.4. Subdivision (p) (“Transition period”) establishes a transition period In general, CO alarms must be installed, operated, and maintained in (June 27, 2015 to June 27, 2016); provides that owners of existing com- accordance with the manufacturer’s instructions. However, in the event of mercial buildings are encouraged to install carbon monoxide detection as a conflict between the manufacturer’s instructions and the provisions of quickly as practicable; provides that the owner of an existing commercial section 1228.4, the provisions of this section 1228.4 shall control. building shall not be deemed to be in violation of section 1228.4 if the Subdivision (h), “Carbon monoxide detection systems,” specifies owner provides the authority having jurisdiction with a written statement requirements for CO detection systems. CO detection systems must certifying that such owner is attempting in good faith to install carbon comply with National Fire Protection Association (NFPA) 720. CO detec- monoxide detection that complies with the requirements of this section tors shall be listed in accordance with UL 2075. 1228.4 in such owner’s existing commercial building as quickly as The CO detectors must be installed in the locations specified in subdivi- practicable; and provides that carbon monoxide detection that satisfies the sions (d) and (e) of section 1228.4. In the event of a conflict between the requirements of section 1228.4 must be installed and must be fully CO detector location requirements specified in subdivisions (d) and (e) operational in all existing commercial buildings by the end of the transi- and the CO detector location requirements specified in NFPA 720, the lo- tion period. cation requirements specified in subdivisions (d) and (e) of section 1228.4 shall control. Final rule as compared with last published rule: Nonsubstantive changes Combination CO / smoke detectors will be permitted in CO detection were made in sections 1228.4(b)(15), (c)(2), (e)(2)(i), (g)(1), (3) and (n)(3). systems, provided such combination detectors are listed in accordance Text of rule and any required statements and analyses may be obtained with UL 2075 and UL 268. from: Mark Blanke, Department of State, 99 Washington Ave., Albany, Notification appliances in CO detection systems must comply with NY 12231-0001, (518) 474-4073, email: [email protected] NFPA 720. Notification appliances shall be provided in the locations Additional matter required by statute: 1. Executive Law § 378(15)(a) specified in NFPA 720 or, in the alternative, in the locations specified in Executive Law § 378(15)(a) provides, in pertinent part, that no change subdivisions (d) and (e) and paragraph (4) of subdivision (g) of section to the State Uniform Fire Prevention and Building Code (Uniform Code) 1228.4 as the required locations for CO detection. shall become effective until at least ninety days after the date on which no- The power source for CO detection systems must comply with NFPA tice of such change has been published in the State Register, unless the 720. Code Council finds that an earlier effective date is necessary to protect Subdivision (i) (“Additional requirement in Group E occupancies”) health, safety and security. provides that in a new commercial building that (i) has an occupant load This rule amends the Uniform Code by adding a new section 1228.4 to of 31 or more and (ii) is classified, in whole or in part, as Educational Part 1228 of Title 19 NYCRR. New section 1228.4 implements subdivi- Group E under Chapter 3 of the 2010 BCNYS, CO alarm signals shall be sion 5-d of Executive Law § 378, as added by Chapter 541 of the Laws of automatically transmitted to an approved on-site location that is normally 2014, by requiring the installation of carbon monoxide detection in com- staffed by school personnel during normal school hours. mercial buildings. Subdivision (j) (“Maintenance”) provides that CO alarms and CO detec- This rule is a new version of a prior rule that was adopted as an emer- tion systems must be maintained in accordance with NFPA 720, and that gency measure and proposed for adoption as a permanent measure by No- CO alarms and CO detectors that become inoperable or begin producing tice of Emergency Adoption and Proposed Rule Making filed on June 25, end-of-life signals must be replaced as soon as practicable. 2015 and published in the State Register on July 15, 2015. Subdivision (k) (“Connection of carbon monoxide detection systems to The prior version of this rule was re-adopted as an emergency measure

61 Rule Making Activities NYS Register/December 9, 2015 by a Notice of Emergency Adoption filed on September 21, 2015 and requirement exists for restaurants and commercial buildings. The absence published in the State Register on October 7, 2015. The re-adoption of the of detection devices in nonresidential occupancies has contributed to in- prior version of this rule expired on November 19, 2015. stances of illness and death among patrons and employees. Chapter 541 of The Department of State (DOS) and the State Fire Prevention and Build- the Laws of 2014 amended Executive Law § 378 to require that the ing Code Council (Code Council) made several non-substantial changes to Uniform Code include standards for carbon monoxide detection in com- the prior version of this rule in response to comments received during the mercial buildings and every building that contains one or more restaurants. public comment period for the prior version of this rule. This rule reflects By requiring that restaurants and commercial buildings follow the same those non-substantial changes. standards as residences, the Legislature demonstrates that its objectives At its meeting held on November 2, 2015, the Code Council found and are to reduce the number of deaths and injuries caused by carbon monox- determined that making the permanent adoption of this rule effective im- ide poisoning, and to provide safer environments for customers and mediately upon the filing of the Notice of Adoption is required to preserve employees. public safety and general welfare because: 3. NEEDS AND BENEFITS. (1) Executive Law § 378(5-d), as added by Chapter 541 of the Laws of Carbon monoxide is an invisible, odorless gas that is generated by the 2014, provides that the Uniform Code must contain provisions requiring incomplete combustion of carbonaceous fuels such as fuel oil, natural gas, the installation of carbon monoxide detecting devices in every commercial kerosene and wood. In non fire situations, elevated carbon monoxide building and every building that contains one or more restaurants; levels may be caused by improperly installed or maintained fuel fired ap- (2) Executive Law § 378(5-d) became effective on June 27, 2015; pliances, motor vehicles operated in enclosed garages, or appliances (3) by reason of the previously filed emergency adoption and previ- intended for outdoor use being used indoors during power failures. As ously filed emergency re-adoption, the prior version of this rule became carbon monoxide is not detectable by the senses, its presence and effective on June 27, 2015 and will remain in effect through November concentration can only be determined by instruments such as carbon monoxide detection systems. 19, 2015; According to the United States Consumer Product Safety Commission, (4) the Code Council has adopted this rule (which reflects non- “on average, about 170 people in the United States die every year from substantial changes to the prior version of this rule) as an emergency mea- CO produced by non-automotive consumer products. sure, and has directed that the Notice of Emergency Adoption be filed on According to the Center for Disease Control and Prevention, there were November 20, 2015, the day following the expiration of the prior version 68,316 non-fire-related CO exposures reported to poison centers between of this rule; the years 2000 and 2009. (The Center for Disease Control and Prevention, (5) the emergency adoption of this rule will become effective on the Carbon Monoxide Exposures United States, 2000-2009, August 5, 2011, date that the Notice of Emergency Adoption is filed (on or about November http://www.cdc.gov/mmwr/preview/mmwrhtml/ mm6030a2.htm.) 20, 2015) and will expire 90 days thereafter (on or about February 18, The Memorandum in Support of the bill enacting Executive Law 2015); § 378(5-d) states that the failure to mandate carbon monoxide detectors in (6) the Code Council has also adopted this rule as a permanent measure; commercial buildings has contributed to cases of illness and death among (7) it is anticipated that the Notice of Adoption of this rule as a perma- patrons and employees. nent measure will be filed on or about the same date as the filing of the This rule implements Executive Law § 378(5-d) by requiring the instal- Notice of Emergency Adoption of this rule as an emergency measure, that lation of CO detecting devices in commercial buildings. is, on or about November 20, 2015; 4. COSTS. (8) A Notice of Adoption filed on November 20, 2015 will appear in Cost to regulated parties. the State Register on December 9, 2015; Regulated parties (owners of new and existing commercial buildings (9) pursuant to Executive Law § 378(15)(a), the adoption of this rule as that [1] contain one or more carbon monoxide sources and/or [2] contain a a permanent measure will not be effective until 90 days after the date on garage or other motor-vehicle related occupancy and/or [3] are attached to which the Notice of Adoption appears in the State Register unless the a garage or other motor-vehicle-related occupancy) are required to install Code Council finds that an earlier effective date is necessary to protect carbon monoxide detection (carbon monoxide alarms or carbon monoxide health, safety and security; detection systems) in the places specified in this rule, to maintain those (10) making the adoption of this rule effective on a date earlier than carbon monoxide alarms or carbon monoxide detection systems, and to March 8, 2016 (90 days after the date on which the Notice of Adoption replace those carbon monoxide alarms or carbon monoxide detection will appear in the State Register) is necessary to protect health, safety, and systems when they cease to operate as intended. security because, in the absence of an earlier effective date, the emergency In each commercial building where carbon monoxide detection is adoption of this rule will expire before the permanent adoption of this rule required, such detection must be located in each “detection zone” that becomes effective. contains a carbon monoxide source, is served by an HVAC system that 2. Executive Law § 377(1) includes a carbon monoxide-producing component, or is adjacent to a ga- Pursuant to Section 377(1) of the Executive Law, the Secretary of State rage or other motor-vehicle-related occupancy. In general, each story in a has reviewed the amendment of the Uniform Code to be implemented by commercial building will be a “detection zone.” this rule, has found that said amendment effectuates the purposes of Article Costs to regulated parties for compliance with this rule will vary 18 of the Executive Law, and has approved said amendment. depending on the size of such building, the number of carbon monoxide Summary of Revised Regulatory Impact Statement sources within the buildings, the wiring within the building, and the type This rule amends the State Uniform Fire Prevention and Building Code of carbon monoxide detection (carbon monoxide alarms or a carbon mon- (Uniform Code) by adding a new section 1228.4 to 19 NYCRR Part 1228 oxide detection system) the owner chooses to provide. The Department (Additional Uniform Code Provisions). New section 1228.4 (entitled estimates that battery-powered carbon monoxide alarms cost approxi- “Carbon Monoxide Detection in Commercial Buildings”) requires the in- mately $50 (including installation costs). When carbon monoxide alarms stallation of carbon monoxide detecting devices in every commercial are installed in new commercial buildings, the alarms must be hard-wired building (including but not limited to every building containing one or units with battery backup. The Department estimates that the total cost more restaurants) if such building has an attached garage or contains any purchasing and installing hard-wired carbon monoxide alarms with bat- appliance, equipment, device or system that may emit carbon monoxide. tery backup will be approximately $125 per unit. Lastly, this rule will 1. STATUTORY AUTHORITY. permit installation of a carbon monoxide detection system in lieu of carbon This rule is authorized by Executive Law § 377(1), which authorizes monoxide alarms. The total cost of purchasing and installing one detector the State Fire Prevention and Building Code Council (Code Council) to and one notification appliance (a necessary component of the carbon mon- amend the Uniform Code from time to time, and by new subdivision (5-d) oxide detection system) will be approximately $348. In addition, a carbon of Executive Law § 378, as added by Chapter 541 of the Laws of 2014. monoxide detection system requires a control unit. The Department New subdivision (5-d) provides that the Uniform Code must include “stan- estimates that the cost of purchasing and installing a carbon monoxide dards for installation of carbon monoxide detecting devices requiring that detection system control unit will be approximately $1,100. the owner of every building that contains one or more restaurants and the This rule provides that carbon monoxide alarms and carbon monoxide owner of every commercial building in the state shall have installed in detection systems must be maintained in an operative condition at all such building and shall maintain operable carbon monoxide detecting de- times, shall be replaced or repaired where defective, and shall be replaced vice or devices of such manufacture, design and installation standards as when they cease to operate as intended. The on-going costs of complying are established by the [Code Council]. Carbon monoxide detecting de- with this rule will include the cost of maintaining carbon monoxide alarms vices shall only be required if the restaurant or commercial building has and carbon monoxide detection systems in operative condition. appliances, devices or systems that may emit carbon monoxide or has an Costs to the Department of State, the State, and Local Governments attached garage.” The Department anticipates that neither the Department nor the State 2. LEGISLATIVE OBJECTIVES. nor the local governments in the State will incur any significant costs for Under current New York law, one and two family dwellings and apart- the implementation or continued administration of this rule, except as ments must be equipped with carbon monoxide detectors, but no such follows:

62 NYS Register/December 9, 2015 Rule Making Activities

First, the Department will provide instruction and technical assistance contrast, carbon monoxide alarms required by section 1228.4 sound an regarding new section 1228.4 and its requirements to code enforcement alarm after detecting higher concentrations - 100 ppm or 400 ppm -over a officials and to regulated parties. The Department anticipates that it will much shorter period of time. be able to use its existing staff to perform these functions. 10. COMPLIANCE SCHEDULE. Second, cities, towns, villages, counties, and State agencies responsible Regulated parties that own existing commercial buildings will be able for administration and enforcement of the Uniform Code will be required to comply with this rule by purchasing and installing battery-operated (1) to see that their code enforcement personnel receive training on new carbon monoxide alarms of the type currently on the market. The Depart- section 1228.4 and its requirements, and (2) to enforce these new ment anticipates that regulated parties that own existing commercial build- provisions. ings should be able to comply with this rule by the end of the “transition Third, the State, which owns commercial buildings, as well as any local period” (June 27, 2015 through June 27, 2016) established by this rule. government that owns one or more commercial buildings, will be subject Regulated parties constructing new commercial buildings will be able to the new requirements to be imposed by new section 1228.4 and will be to comply with this rule by installing hard-wired carbon monoxide alarms required to comply with those requirements. In this context, the State and or carbon monoxide detection systems as part of the construction process. any local government that owns commercial buildings will be regulated Summary of Revised Regulatory Flexibility Analysis parties, and will incur compliance costs similar to those discussed above 1. EFFECT OF RULE. for other regulated parties. This rule implements subdivision (5-d) of Executive Law § 378, as 5. PAPERWORK. added by Chapter 541 of the Laws of 2014. Specifically, this rule amends This rule requires carbon monoxide detection systems to comply with the State Uniform Fire Prevention and Building Code (Uniform Code) by the Standard for the Installation of Carbon Monoxide (CO) Detection and adding a new section 1228.4 (entitled “Carbon Monoxide Detection in Warning Equipment, published by the National Fire Protection Associa- Commercial Buildings”) to 19 NYCRR Part 1228. New section 1228.4 tion (NFPA 720). If a regulated party elects to install a CO detection requires the installation of carbon monoxide (CO) detecting devices in all system in lieu of CO alarms, such system must comply with NFPA 720. A new and existing commercial buildings. small business or local government that elects to install a CO detection Types and Estimated Number of Small Businesses and Local Govern- system will be required to comply with the reporting and recordkeeping ments Affected requirements specified in NFPA 720 Sections 4.4.2.3, 4.14.2, 8.2.1.5, This rule will affect any small business or local government that owns 8.2.3, 8.6.1, and 8.6.2.2. NFPA 720 provides standardized forms to be an existing commercial building or constructs a new commercial building. used for this recordkeeping. In addition, since landlords typically recover building-related costs by 6. LOCAL GOVERNMENT MANDATES. increasing rents, this rule will indirectly affect any small business or local This rule imposes no new programs, services, duties and responsibili- government that rents space in a commercial building. The Department of ties upon Local Governments, except as follows: State (DOS) is not able to estimate the number of small businesses and lo- First, any Local Government that owns any existing commercial build- cal governments that will be directly or indirectly affected by this rule; ing or constructs any new commercial building will be required to install however, DOS anticipates that most small businesses and local govern- carbon monoxide alarm(s) or a carbon monoxide detection system in such ments will be directly or indirectly affected by this rule. building. In addition, since this rule adds provisions to the Uniform Code, the Second, cities, towns, villages, and counties charged by Executive Law activities of each local government that is responsible for administering Section 381 with the responsibility of administering and enforcing the and enforcing the Uniform Code will be affected by this rule. DOS Uniform Code will be required to enforce the provisions of new section estimates that approximately 1,604 local governments (mostly cities, 1228.4. Such cities, towns, villages, and counties will be required to see towns and villages, as well as several counties) are responsible for that their code enforcement personnel receive training on new section administering and enforcing the Uniform Code. 1228.4. 2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE 7. DUPLICATION. REQUIREMENTS. This rule does not duplicate, overlap or conflict with any other legal Reporting and Recordkeeping Requirements requirement of the Federal or State government known to the Department. If a regulated party elects to install a CO detection system in lieu of CO 8. ALTERNATIVES. alarms, such system must comply with the Standard for the Installation of The rule does not permit the use of plug in units or battery-powered Carbon Monoxide (CO) Detection and Warning Equipment, published by carbon monoxide alarms in new commercial buildings. The Department the National Fire Protection Association (NFPA 720). A small business or considered the alternative of allowing the use of battery-powered carbon local government that elects to install a CO detection system will be monoxide alarms in new commercial buildings. This alternative was required to comply with the reporting and recordkeeping requirements rejected because the Department determined that the additional cost as- specified in NFPA 720 Sections 4.4.2.3, 4.14.2, 8.2.1.5, 4.4.3, 8.2.3, 8.6.1, sociated with requiring hard-wired carbon monoxide alarms in new build- and 8.6.2.2. NFPA 720 provides standardized forms to be used for this ings was minimal (compared to the additional cost associated with requir- recordkeeping. ing hard-wired alarms in existing buildings). Other Compliance Requirements The rule permits a building owner to choose between installing carbon Small businesses and local governments that own a new or existing monoxide alarms or a carbon monoxide detection system. The Depart- commercial building that contains a CO source, contains a garage or other ment considered the alternative of requiring the installation of a carbon motor-vehicle-related occupancy, or is attached to a garage or other motor- monoxide detection system in all commercial buildings. This alternative vehicle-related occupancy will be required to install CO detection (CO was rejected because it would unnecessarily increase the cost of bringing alarms or a CO detection system) in the places specified in this rule, to commercial buildings, particularly existing commercial buildings, into maintain those CO alarms or CO detection systems, and to replace those compliance with the new statutory mandate. CO alarms or CO detection systems when they cease to operate as The rule requires carbon monoxide detection in each detection zone intended. where at least one of the “triggering conditions” exists. The rule also In each commercial building where CO detection is required, such requires carbon monoxide detection in more than one location in larger detection must be located in each “detection zone” (as that term is defined (over 10,000 square feet) detection zones. The Department considered in the rule) that contains a CO source, is served by an HVAC system that alternatives such as requiring carbon monoxide detection only in the vicin- includes a CO-producing component, or is adjacent to a garage or other ity of each carbon monoxide source, allowing plug-in units in new and motor-vehicle-related occupancy. existing buildings, and allowing alternative listing entities. These alterna- As a general rule, when CO detection must be provided in a detection tives were rejected because the Department determined that such reduced zone, the CO detection must be placed in a central location within the coverage would not have provided the increased level of safety contem- detection zone. If the detection zone is larger than 10,000 square feet, ad- plated by the Legislature when it added a new subdivision (5-d) to section ditional CO detection must be placed in such additional locations as may 378 of the Executive Law. be necessary to assure that no point in the detection zone is more than 100 9. FEDERAL STANDARDS. feet from CO detection. This rule parallels similar federal standards for carbon monoxide In an existing commercial building (or in a new or existing commercial exposure. The federal standards apply to buildings consisting of employ- building without commercial electric power), CO alarms powered by 10- ees who are employed in a business that affects commerce (CFR Title 29, year batteries are permitted.1 When CO alarms are installed in new com- Part 1910, Subpart Z, § 1910.1000: Air contaminants). However, although mercial buildings, the alarms must be hard-wired units with battery these standards are similar, they measure carbon monoxide exposures dif- backup. ferently from section 1228.4, therefore making it difficult to conclude This rule also permits installation of a CO detection system in lieu of whether they exceed these standards. For example, CFR Title 29, Part CO alarms. A CO detection system (1) must comply with NFPA 720, (2) 1910, Subpart Z, § 1910.1000 limits an employee’s exposure to 50 ppm must have a detector at each location where a CO alarm otherwise would over an 8-hour weighted average, comparable to a typical workday. By have been required, and (3) must have a notification appliance at each lo-

63 Rule Making Activities NYS Register/December 9, 2015 cation specified in NFPA 720 or, in the alternative, at each location where control unit required to provide “monitoring” of the CO detection system a CO alarm otherwise would have been required. will be approximately $1,100. When a CO alarm is installed in a normally unoccupied detection zone On-going Costs of Compliance in a new commercial building, that alarm must be interconnected with a This rule provides that CO alarms and CO detection systems must be CO alarm that is placed in an adjacent and normally occupied detection maintained in an operative condition at all times, shall be replaced or zone; and repaired where defective, and shall be replaced when they cease to operate In the case of a new commercial building that (i) has an occupant load as intended. of 31 or more and (ii) is classified, in whole or in part, as Educational In the case of a battery-powered CO alarm, such maintenance would Group E under Chapter 3 of the 2010 Building Code of New York State include vacuuming the alarm cover to remove accumulated dust (typically (BCNYS), this rule provides that CO alarm signals must be automatically one a month) and replacing the alarm at the conclusion of its 10-year transmitted to an approved on-site location that is normally staffed by lifespan. school personnel during normal school hours. In the case of a hard-wired CO alarm with battery backup, the required CO detection systems shall be connected to control units and off- maintenance would include vacuuming the alarm cover to remove ac- premises signal transmission in accordance with the requirements of the cumulated dust (typically one a month) and replacing the backup battery BCNYS. as required (although it is anticipated that backup batteries in such alarms 3. PROFESSIONAL SERVICES. should not need to be replaced during the anticipated life of the alarm). If a small business or local government elects to install a CO detection In addition, most manufacturers recommend that their CO alarms system (in lieu of CO alarms), the small business or local government (whether battery-powered or hard-wired) be checked using the alarm’s must hire service personnel with the qualifications and experience listed in “test” button on a periodic basis (typically once a week) and replaced on a NFPA 720 Section 8.3 in order to install and maintain the CO detection periodic basis (typically once every five years). system. Regulated parties constructing new commercial buildings will be able In addition, in certain situations a small business or local government to comply with this rule by installing hard-wired CO alarms or CO detec- that elects to install a CO detection system may be required to hire a person tion systems as part of the construction process. This rule will require CO holding an appropriate license under General Business Law Article 6-D to detection systems to comply with NFPA 720. install, service or maintain such CO detection system. Variations in Costs 4. COMPLIANCE COSTS. Any variation in compliance costs for small businesses or local govern- Initial Costs of Compliance ments is likely to depend more on the number and size of commercial The initial capital costs of complying with the rule will include the cost buildings owned by the small business or local government, not on the of purchasing and installing the CO alarms or CO detection systems. Costs type or size of the small business or local government. to regulated parties for compliance with this rule will vary depending on 5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY. the size of such building, the number of CO sources within the buildings, It is economically and technologically feasible for small businesses and the wiring within the building, and the type of CO detection (CO alarms or local governments to comply with new section 1228.4. a CO detection system) the owner chooses to provide.2 Regulated parties that own existing commercial buildings will be able In an existing commercial building (or in a new or existing commercial to comply with this rule by purchasing and installing battery-operated CO building without commercial electric power), CO alarms powered by 10- alarms of the type currently on the market. DOS anticipates that regulated year batteries are permitted. DOS estimates that the cost of purchasing and parties that own existing commercial building should be able to comply installing such battery-powered CO alarms is approximately $50. with this rule by the end of the “transition period” (June 27, 2015 through When CO alarms are installed in new commercial buildings, the alarms June 27, 2016) established by this rule. must be hard-wired units with battery backup. DOS estimates that total Regulated parties constructing new commercial buildings will be able cost purchasing and installing hard-wired CO alarms with battery backup to comply with this rule by installing hard-wired CO alarms or CO detec- will be approximately $125 per unit. tion systems as part of the construction process. This rule permits installation of a CO detection system in lieu of CO No new technology need be developed for compliance. alarms. A CO detection system must comply with NFPA 720; must have a 6. MINIMIZING ADVERSE IMPACT. detector at each location where a CO alarm otherwise would have been The rule minimizes potential adverse economic impacts on regulated required; and must have a notification appliance at each location specified parties by providing several alternative means of compliance (including in NFPA 720 or, in the alternative, at each location where a CO alarm the option of installing battery powered carbon monoxide alarms in exist- otherwise would have been required. DOS estimates that the cost of each ing commercial buildings and in commercial buildings with no com- detector in a CO detection system will be approximately $55, the cost of mercial electric power); providing exemptions for commercial buildings each notification appliance used in a CO detection system will be ap- that are (1) classified as Storage Group S or Utility and Miscellaneous proximately $78, the cost of installing one detector and one notification Group U and occupied only occasionally for building or equipment main- appliance will be approximately $215, and the total cost of purchasing and tenance, (2) “canopies” (as defined in the 2010 FCNYS), or (3) completely installing one detector and one notification appliance will be approxi- unoccupied and secured; providing a number of exceptions for certain mately $348. In addition, a CO detection system requires a control unit. detection zones that would otherwise require CO detection; and establish- DOS estimates that the cost of purchasing and installing a CO detection ing a “transition period” to provide owners of existing commercial build- system control unit will be approximately $1,100.3 The estimated installa- ings with additional time to achieve full compliance. tion costs specified in this paragraph include the cost of installing the Providing exemptions from coverage by the rule, or any part thereof, components and the cost of interconnecting the components. for commercial buildings owned by small businesses or local governments In certain situations, a CO alarm installed in a new commercial building would not be consistent with legislative objectives and would endanger must be a “multiple station” alarm (i.e., must be interconnected with at public health, safety, and general welfare. least one other CO alarm in the building). DOS estimates that (1) the 7. SMALL BUSINESS AND LOCAL GOVERNMENT median price of multiple station CO alarms that are hard-wired and have PARTICIPATION. battery backup to be approximately $38 per unit, (2) the cost of installing DOS notified interested parties throughout the State, including inter- such alarms will be approximately $90 per unit, and (3) the cost of provid- ested parties in rural areas, of the proposed adoption of a prior version of ing interconnection between an alarm in a normally unoccupied detection this rule by means of notices posted on DOS’s website and notices zone and an alarm in an adjacent, normally occupied detection zone will published in Building New York, a monthly electronic news bulletin be approximately $150. covering topics related to the Uniform Code and the construction industry. In the case of a new commercial building classified, in whole or in part, The prior version of this rule was proposed for adoption by Notice of as Educational Group E under the 2010 BCNYS, CO alarm signals must Emergency Adoption and Proposed Rule Making published in the State be automatically transmitted to an approved on-site location that is Register on July 15, 2015. DOS and the Code Council made several non- normally staffed by school personnel during normal school hours. DOS substantial changes to the prior version of this rule in response to public estimates that the median price of multiple station CO alarms that are comments received during the public comment period. This rule (i.e., the hard-wired and have battery backup will be approximately $38 per unit; rule now being adopted) reflects those non-substantial changes. (2) the cost of installing such alarms will be approximately $90 per unit; 8. VIOLATIONS AND PENALTIES ASSOCIATED WITH and (3) the cost of providing interconnection between the detection zone VIOLATIONS. (classroom) to an on-site location up to 100 feet away will be ap- The rule includes a subdivision that provides, in effect, a “cure period proximately $250. or other opportunity for ameliorative action, the successful completion of This rule provides that CO detection systems must be “monitored” (i.e., which will prevent the imposition of penalties on the party or parties connected to control units and off-premises signal transmission). If a CO subject to enforcement” in this rule. Subdivision (p) of new section 1228.4 detection system is installed in a building that does not have a fire alarm provides that during the “transition period” (June 27, 2015 to June 27, system, DOS estimates that the cost of purchasing and installing the 2016), the owner of an existing commercial building shall not be deemed

64 NYS Register/December 9, 2015 Rule Making Activities to be in violation of section 1228.4 if the owner provides the authority When a CO alarm is installed in a normally unoccupied detection zone having jurisdiction with a written statement certifying that such owner is in a new commercial building, that alarm must be interconnected with a attempting in good faith to install carbon monoxide detection that complies CO alarm that is placed in an adjacent and normally occupied detection with the requirements of new section 1228.4 in such owner’s existing zone; and commercial building as quickly as practicable. In the case of a new commercial building that (i) has an occupant load All owners of existing commercial buildings will be required to have of 31 or more and (ii) is classified, in whole or in part, as Educational such carbon monoxide detection fully installed and operational by the end Group E under Chapter 3 of the 2010 Building Code of New York State of the transition period. (BCNYS), this rule provides that CO alarm signals must be automatically ——————————— transmitted to an approved on-site location that is normally staffed by 1 An “existing commercial building” is defined in this rule as a com- school personnel during normal school hours. mercial building constructed before December 31, 2015 (meaning either This rule requires CO detection systems to be connected to control units that the original construction of the building was completed on or before and off-premises signal transmission in accordance with the requirements of the BCNYS. December 31, 2015, or that the application for the building permit for the 3. PROFESSIONAL SERVICES. original construction of the building was filed on or before December 31, If the owner of a commercial building elects to install a CO detection 2015). A “new commercial building” is defined in this rule as any com- system in lieu of CO alarms, the building owner must hire service person- mercial building that is not an existing commercial building. nel with the qualifications and experience listed in NFPA 720 Section 8.3 2 Cost estimates set forth in this section are based on prices quoted on in order to install and maintain the CO detection system. the websites of several manufacturers of carbon monoxide alarms and In addition, in certain situations an owner of a commercial building carbon monoxide detection systems. See, for example, http:// who elects to install a CO detection system may be required to hire a www.homedepot.com/p/Kidde-120-Volt-Hardwire-Inter-Connectable- person holding an appropriate license under General Business Law Article Carbon-Monoxide-Alarm-with-Battery-Backup-KN-COB-1C/ 6-D to install, service or maintain such CO detection system. 202281774?N=5yclvZbmgkZ1zOuzse. Estimated installation costs are 4. COMPLIANCE COSTS. based on the time estimated to perform an installation multiplied by an as- Initial Costs of Compliance sumed hourly rate of $70. The initial capital costs of complying with the rule will include the cost 3 In many situations, a single control panel can control both a carbon of purchasing and installing the CO alarms or CO detection systems. Costs to regulated parties for compliance with this rule will vary depending on monoxide detection system and a fire alarm system. Therefore, in a build- the size of such building, the number of CO sources within the building, ing where a fire alarm system is required by other provisions of the the wiring within the building, and the type of CO detection (CO alarms or Uniform Code, there should be little or no additional cost associated with a CO detection system) the owner chooses to provide.2 providing a control panel for the carbon monoxide detection system. In an existing commercial building (or in a new or existing commercial Summary of Revised Rural Area Flexibility Analysis building without commercial electric power), CO alarms powered by 10- 1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS. year batteries are permitted. The Department of State (DOS) estimates This rule amends the State Uniform Fire Prevention and Building Code that the cost of purchasing and installing such battery-powered CO alarms (Uniform Code) by adding a new section 1228.4 to 19 NYCRR Part 1228. is approximately $50. New section 1228.4 requires the installation of carbon monoxide (CO) When CO alarms are installed in new commercial buildings, the alarms detecting devices in all new and existing commercial buildings. Since the must be hard-wired units with battery backup. DOS estimates that total Uniform Code applies in all areas of the State (other than New York City), cost purchasing and installing hard-wired CO alarms with battery backup this rule applies in all rural areas of the State. will be approximately $125 per unit. 2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE This rule permits installation of a CO detection system in lieu of CO REQUIREMENTS. alarms. A CO detection system must comply with NFPA 720; must have a Reporting and Recordkeeping Requirements detector at each location where a CO alarm otherwise would have been If a regulated party elects to install a CO detection system in lieu of CO required; and must have a notification appliance at each location specified alarms, such system must comply with the Standard for the Installation of in NFPA 720 or, in the alternative, at each location where a CO alarm Carbon Monoxide Detection and Warning Equipment, published by the otherwise would have been required. DOS estimates that (1) the cost of National Fire Protection Association (NFPA 720). A small business or lo- each detector in a CO detection system will be approximately $55, (2) the cal government that elects to install a CO detection system will be required cost of each notification appliance used in a CO detection system will be to comply with the reporting and recordkeeping requirements specified in approximately $78, (3) the cost of installing one detector and one notifica- NFPA 720 Sections 4.4.2.3, 4.14.2, 8.2.1.5, 4.4.3, 8.2.3, 8.6.1, and 8.6.2.2. tion appliance will be approximately $215, and (4) the total cost of NFPA 720 provides standardized forms to be used for this recordkeeping. purchasing and installing one detector and one notification appliance will Other Compliance Requirements be approximately $348. In addition, a CO detection system requires a The owner of a new or existing commercial building that contains a CO control unit. DOS estimates that the cost of purchasing and installing a CO source, contains a garage or other motor-vehicle-related occupancy, or is detection system control unit will be approximately $1,100.3 The estimated attached to a garage or other motor-vehicle-related occupancy will be installation costs specified in this paragraph include the cost of installing required to install CO detection (CO alarms or a CO detection system) in the components and the cost of interconnecting the components. the places specified in this rule, to maintain those CO alarms or CO detec- In certain situations, a CO alarm installed in a new commercial building tion systems, and to replace those CO alarms or CO detection systems must be a “multiple station” alarm (i.e., must be interconnected with at when they cease to operate as intended. least one other CO alarm in the building). DOS estimates that (1) the In each commercial building where CO detection is required, such median price of multiple station CO alarms that are hard-wired and have detection must be located in each “detection zone” that contains a CO battery backup to be approximately $38 per unit, (2) the cost of installing source, is served by an HVAC system that includes a CO-producing such alarms will be approximately $90 per unit, and (3) the cost of provid- component, or is adjacent to a garage or other motor-vehicle-related ing interconnection between an alarm in a normally unoccupied detection occupancy. zone and an alarm in an adjacent, normally occupied detection zone will As a general rule, when CO detection must be provided in a detection be approximately $150. zone, the CO detection must be placed in a central location within the In the case of a new commercial building classified, in whole or in part, detection zone. However, if the detection zone is larger than 10,000 square as Educational Group E, CO alarm signals must be automatically transmit- feet, additional CO detection must be placed in such additional locations ted to an approved on-site location that is normally staffed by school as may be necessary to assure that no point in the detection zone is more personnel during normal school hours. DOS estimates that the median than 100 feet from CO detection. price of multiple station CO alarms that are hard-wired and have battery In an existing commercial building (or in a new or existing commercial backup will be approximately $38 per unit; (2) the cost of installing such building without commercial electric power), CO alarms powered by 10- alarms will be approximately $90 per unit; and (3) the cost of providing year batteries are permitted.1 When CO alarms are installed in new com- interconnection between the detection zone (classroom) to an on-site loca- mercial buildings, the alarms must be hard-wired units with battery tion up to 100 feet away will be approximately $250. backup. This rule provides that CO detection systems must be “monitored” (i.e., This rule permits installation of a CO detection system in lieu of CO connected to control units and off-premises signal transmission). If a CO alarms. A CO detection system (1) must comply with NFPA 720, (2) must detection system is installed in a building that does not have a fire alarm have a detector at each location where a CO alarm otherwise would have system, DOS estimates that the cost of purchasing and installing the been required, and (3) must have a notification appliance at each location control unit required to provide “monitoring” of the CO detection system specified in NFPA 720 or, in the alternative, at each location where a CO will be approximately $1,100. alarm otherwise would have been required. On-going Costs of Compliance

65 Rule Making Activities NYS Register/December 9, 2015

This rule provides that CO alarms and CO detection systems must be based on the time estimated to perform an installation multiplied by an as- maintained in an operative condition at all times, shall be replaced or sumed hourly rate of $70. repaired where defective, and shall be replaced when they cease to operate 3 In many situations, a single control panel can control both a carbon as intended. In the case of a battery-powered CO alarm, such maintenance would monoxide detection system and a fire alarm system. Therefore, in a build- include vacuuming the alarm cover to remove accumulated dust (typically ing where a fire alarm system is required by other provisions of the one a month) and replacing the alarm at the conclusion of its 10-year Uniform Code, there should be little or no additional cost associated with lifespan. providing a control panel for the carbon monoxide detection system. In the case of a hard-wired CO alarm with battery backup, the required Revised Job Impact Statement maintenance would include vacuuming the alarm cover to remove ac- The Department of State has concluded after reviewing the nature and cumulated dust (typically one a month) and replacing the backup battery purpose of the rule that it will not have a “substantial adverse impact on as required (although it is anticipated that backup batteries in such alarms jobs and employment opportunities” (as that term is defined in section should not need to be replaced during the anticipated life of the alarm). 201-a of the State Administrative Procedures Act) in New York. In addition, most manufacturers recommend that their CO alarms This rule amends the State Uniform Fire Prevention and Building Code (whether battery-powered or hard-wired) be checked using the alarm’s (the Uniform Code) to require that the installation of carbon monoxide “test” button on a periodic basis (typically once a week) and replaced on a detecting devices (carbon monoxide alarms or carbon monoxide detection periodic basis (typically once every five years). systems) in all commercial buildings that contain a carbon monoxide Regulated parties constructing new commercial buildings will be able source, contain a garage or other motor-vehicle-related occupancy and/or to comply with this rule by installing hard-wired CO alarms or CO detec- are attached to a garage or other motor-vehicle-related occupancy. This tion systems as part of the construction process. This rule will require CO amendment is required to satisfy the requirements of subdivision (5-d) of detection systems to comply with NFPA 720. section 378 of the Executive Law, as added by Chapter 541 of the Laws of Variations in Costs 2014. Any variation in compliance costs for public and private entities in rural This rule requires the installation of carbon monoxide detecting devices areas is likely to depend on the number and size of commercial buildings in “existing commercial buildings” (defined in this rule as a commercial owned by a public or private entity, and not on differences between types building constructed prior to January 1, 2016). However, potential adverse of public and private entities in rural areas. economic impact on regulated parties is minimized by the provisions of 5. MINIMIZING ADVERSE IMPACT the rule that allow the use of battery powered carbon monoxide alarms in The rule minimizes potential adverse economic impacts on regulated existing commercial buildings. (The rule also permits the use of battery parties by: powered carbon monoxide alarms in new and existing commercial build- (1) providing several alternative means of compliance (including the ings without a commercial electric power.) option of installing battery powered carbon monoxide alarms in existing This rule also requires the installation of carbon monoxide detecting de- commercial buildings and in commercial buildings with no commercial vices in new commercial buildings. However, potential adverse economic electric power); impact on regulated parties is minimized by the provisions of the rule that (2) providing exemptions for commercial buildings that are (i) classi- permit the installation of carbon monoxide alarms even in new commercial fied as Storage Group S or Utility and Miscellaneous Group U and oc- buildings (although carbon monoxide alarms installed in new commercial cupied only occasionally for building or equipment maintenance, (ii) buildings must be hard-wired, with battery backup). Regulated parties are “canopies” (as defined in the 2010 FCNYS), or (iii) completely unoccu- permitted to install carbon monoxide detection systems; in the case of a pied and secured; building that is required by other, already existing provisions of the (3) providing a number of exceptions for certain detection zones that Uniform Code to have a fire alarm system, the additional cost of adding a would otherwise require CO detection; and carbon monoxide detection system is expected to be modest. In any event, (4) establishing a “transition period” to provide owners of existing com- whether an owner chooses to install hard-wired carbon monoxide alarms mercial buildings with additional time to achieve full compliance. with battery backup or a carbon monoxide detection system in a new com- This rule implements Executive Law § 378(5-d), which requires instal- mercial building, the costs of purchasing, installing and maintaining the lation of CO detecting devices in all commercial buildings that contains carbon monoxide detecting devices required by this rule is expected to be any appliance, equipment, device or system that may emit CO or has an insignificant in comparison to the total cost of construction. Therefore, attached garage. Executive Law § 378(5-d) makes no distinction between this rule should have no substantial adverse impact on construction of new commercial buildings located in rural areas and commercial buildings lo- commercial buildings and, consequently, this rule should have no cated in other areas of the State. Executive Law § 378(5-d) does not au- substantial adverse impact on jobs and employment opportunities related thorize the establishment of differing compliance requirements or to the construction of new commercial buildings. timetables for commercial buildings located in rural areas. Providing The Uniform Code has contained provisions requiring installation of exemptions from coverage by the rule, or any part thereof, for commercial carbon monoxide alarms in residential buildings since 2002. The current buildings located in rural areas would not be consistent with legislative requirements relating to installation of alarms in residential buildings are objectives and would endanger public health, safety, and general welfare. not changed by this rule. Therefore, this rule should have no substantial 6. RURAL AREA PARTICIPATION. adverse impact on jobs and employment opportunities related to the DOS notified interested parties throughout the State, including inter- construction of new residential buildings. ested parties in rural areas, of the proposed adoption of a prior version of this rule by means of notices posted on DOS’s website and notices Initial Review of Rule published in Building New York, a monthly electronic news bulletin As a rule that requires a RFA, RAFA or JIS, this rule will be initially covering topics related to the Uniform Code and the construction industry. reviewed in the calendar year 2018, which is no later than the 3rd year af- The prior version of this rule was proposed for adoption by Notice of ter the year in which this rule is being adopted. Emergency Adoption and Proposed Rule Making published in the State Assessment of Public Comment Register on July 15, 2015. DOS and the Code Council made several non- The Notice of Emergency Adoption and Proposed Rule Making was substantial changes to the prior version of this rule in response to public published in the State Register on July 15, 2015. A public hearing was comments received during the public comment period. This rule (i.e., the held on August 31, 2015. The Department of State (DOS) received the rule now being adopted) reflects those non-substantial changes. comments described below. Where identical or substantially similar com- ——————————— ments were received from more than one commenter, those comments are 1 An “existing commercial building” is defined in this rule as a com- discussed in one consolidated statement below. mercial building constructed before December 31, 2015 (meaning either Summary and Analysis of Issues Raised and Significant Alternatives that the original construction of the building was completed on or before Suggested by Comments, and Reasons why any Significant Alternatives December 31, 2015, or that the application for the building permit for the were not incorporated into the Rule original construction of the building was filed on or before December 31, COMMENT 1: Having fuel-fired burners used in K-12 science class- 2015). A “new commercial building” is defined in this rule as any com- rooms be considered a carbon monoxide source is over restrictive. Testing has shown little to no production of carbon monoxide during extensive use mercial building that is not an existing commercial building. 2 within existing classrooms. Cost estimates set forth in this section are based on prices quoted on DOS RESPONSE TO COMMENT 1: This rule implements Executive the websites of several manufacturers of carbon monoxide alarms and Law 378 (5-d), which provides that the State Uniform Fire Prevention and carbon monoxide detection systems. See, for example, http:// Building Code (the Uniform Code) must include standards requiring the www.homedepot.com/p/Kidde-120-Volt-Hardwire-Inter-Connectable- installation and maintenance of one or more carbon monoxide (CO) detect- Carbon-Monoxide-Alarm-with-Battery-Backup-KN-COB-1C/ ing devices in every building that contains one or more restaurants and 202281774?N=5yclvZbmgkZ1zOuzse. Estimated installation costs are every commercial building in the State that has “appliances, devices or

66 NYS Register/December 9, 2015 Rule Making Activities systems that may emit carbon monoxide or has an attached garage.” Since connection to a central station in accordance with NFPA 720 for new fuel-fired burners in K-12 classrooms are “appliances, devices or systems buildings (constructed on or after January 1, 2016) that are required to that may emit carbon monoxide,” this rule must consider such burners to have a fire alarm control unit due to other Uniform Code requirements. be CO sources. These are consistent with existing Uniform Code requirements for central COMMENT 2: Please consider revising section 1228.4(e)(2)(ii) to al- station activation of fire alarm systems. Therefore, DOS made no change low non-classroom detection zones that contain multiple CO sources that in response to Comment 8. are not CO-producing HVAC systems as separate sources under the COMMENT 9: By having full alarm we will get people out. exception. DOS RESPONSE TO COMMENT 9: Activation of a fire alarm DOS RESPONSE TO COMMENT 2: Section 1228.4(e)(2)(ii) provides notification system would be in conflict with the definition of a “fire alarm an alternative for compliance in the case of certain large (more than 10,000 signal” in the Uniform Code. Furthermore, the connection of carbon mon- square feet) detection zones. As originally proposed, the alternative was oxide detection systems to either existing fire alarm control units or, in available only if the large detection zone contained only one CO source. existing and new buildings that do not have fire alarm systems, requiring In response to this comment, DOS has revised 1228.4(e)(2)(ii) to make the the installation of new fire alarm control units to activate the full fire alarm alternative available if the large detection zone contains one or more CO systems would not be logistically possible (as expressed in DOS Response sources. The revision will require one CO detecting device in a “central to Comment 6) and/or would be excessive in cost in many circumstances. location” in the zone and one additional CO detecting device for each CO Therefore, DOS made no change in response to Comment 9. source located in the zone. COMMENT 10: Subdivision (g) of section 1228.4 (which permits the COMMENT 3: Please consider deleting clause “(C)” from the excep- use of carbon monoxide alarms listed in accordance with UL 2034 in com- tion set forth in section 1228.4(e)(2)(ii). (The referenced clause reads as mercial buildings) should be removed from Section 1228.4 until there is a follows: “(C) is not adjacent to a garage or other motor-vehicle-related standard for commercial CO alarms. UL 2034 is not appropriate for com- occupancy.”) If a garage is considered a triggering source then it should mercial buildings. be treated as one of the CO sources under the detector placement require- DOS RESPONSE TO COMMENT 10: The use of UL 2034 carbon ments, including any exception. monoxide alarms in commercial buildings is allowed due to lack of prod- DOS RESPONSE TO COMMENT 3: Section 1228.4(e)(2)(i) requires uct on the market to address the need for stand-alone devices and the placement of CO detectors in a large (over 10,000 square feet) detection retrofitting of existing commercial buildings. UL 2034 has been used in zone in locations that will assure that no point in the detection zone is the commercial market in other locations within the state, such as the more than 100 feet from a detector. County of Albany, and is currently permitted in non-residential occupan- Section 1228.4(e)(2)(ii) provides an exception to that general rule. The cies in the International Fire Code (specifically schools). DOS staff has exception provides that if the large detection zone (A) contains one or worked with Underwriters Laboratories and manufacturers to discuss this more CO sources, (B) is not served by a CO-producing HVAC system, specific requirement and the finding of staff has been the sensor testing is (C) is not adjacent to a garage or other motor vehicle-related occupancy, the same for the residential units (listed to UL 2034) and commercial-type and (D) is not a classroom, a CO detector will be required at a “central lo- units (listed to UL 2075). Since UL 2075 is for only the detectors (without cation” and, for each CO source in the zone, one CO detector will be notification), no other options are available. Therefore, DOS made no required at either an approved location between such CO source and the change in response to Comment 10. remainder of the detection zone or on the ceiling of, or at another ap- COMMENT 11: Clarification is needed on whether carbon monoxide proved location in, the room containing such CO source.1 detection devices are required in vacant premises. The clause cited by the person submitting this comment (clause “(C)”) DOS RESPONSE TO COMMENT 11: DOS has amended the rule to actually narrows the scope of this exception. If clause “(C)” were deleted, provide that CO detection is not required during any period of time when as requested, the exception would become broader and would apply in (1) no part of the building is occupied and (2) certain other specified condi- more situations. Therefore, DOS made no change in response to Comment tions are satisfied. See section 1228.4(c)(2)(iii) of the new version of the 3. rule now being adopted. COMMENT 4: CO detectors should be considered life safety devices, COMMENT 12: Prohibiting combination smoke and carbon monoxide which they are defined as in NFPA 720 2012 edition, but not in the NYS alarms is confusing and unsubstantiated. reference of the 2009 edition. DOS RESPONSE TO COMMENT 12: This rule prohibits the installa- DOS RESPONSE TO COMMENT 4: DOS has amended this rule to re- tion of combination smoke and carbon monoxide alarms but does allow fer to the 2015 edition of NFPA 720. for the installation of combination smoke and carbon monoxide detectors. COMMENT 5: Installation of CO detectors in HVAC zones is very The difference is that a smoke alarm (UL 217) is not appropriate to place problematic for many reasons; including dealing with existing buildings, in a commercial setting based on the listing and the availability of smoke reluctance of design professionals to sign off and subdivided buildings. detectors for that application (UL 268). However, DOS has amended the DOS RESPONSE TO COMMENT 5: This rule uses the term “detec- rule to allow certain previously installed combination alarms to remain in tion zone” which is not the same as the NFPA 720 term of “HVAC zone.” place for the remainder of their useful life. This rule determines the locations where CO detector are required on the COMMENT 13: There should be an exception for automotive repair basis of “detection zones” (as defined in this rule), and not “HVAC zones” shops. (as defined in NFPA 720). Therefore, DOS made no change in response to DOS RESPONSE TO COMMENT 13: An automotive repair shop is a Comment 5. motor-vehicle-related occupancy and, therefore, an automotive repair shop COMMENT 6: Most fire alarm panels cannot produce the Temporal 4 is a “CO source” in and of itself. Automotive repair shops may also contain notification tone for carbon monoxide notification. other CO sources. The exception already present in section 1228.4(d)(2)(i) DOS RESPONSE TO COMMENT 6: This rule does not require the use should provide relief and the alternative safety plan contemplated by that of a fire alarm control unit to produce the notification of occupants of an provisions should provide adequate safeguards. DOS does not believe that existing building (i.e., is any building that is constructed prior to January creating a blanket exception for automotive repair shops satisfies the 1, 2016). Furthermore, any building that is constructed after January 1, mandate of Executive Law 378 (5-d). Therefore, DOS made no change in 2016 is required to have off-premises signal transmission only when a fire response to Comment 13. alarm control unit is required by other sections of the Uniform Code for COMMENT 14: The 100 foot requirement from a detector will be fire alarm or automatic sprinkler systems. Notification can be completed impossible for restaurant owners to meet and request an easier require- by either carbon monoxide alarms or by detectors activating notification ment to meet. appliances that meet the requirements of subdivision (k) of section 1228.4. DOS RESPONSE TO COMMENT 14: This rule provides that in detec- Therefore, DOS made no change in response to Comment 6. tion zones larger than 10,000 square feet, detectors must be placed in such COMMENT 7: How does the general public know the difference be- locations as may be required to assure that no point in the detection zone is tween Temporal 3 and Temporal 4 notification tones? more than 100 feet from a detector. The 100 foot requirement is to address DOS RESPONSE TO COMMENT 7: This rule does not address the is- the notification aspects of the carbon monoxide detection devices. This sue of informing the general public, or the occupants of any given build- rule would allow detection devices to be placed up to 200 feet from each ing, of the specific emergency indicated by a specific notification tone other, provided the space within the detection zone was open. No ad- sounded by notification appliances in a building. DOS does not believe ditional information has been provided to describe the specific request as that amending this rule to require a voice-type notification system for far as distance or the hardship at 100 feet distance. Therefore, DOS made carbon monoxide detectors is warranted at this time. Therefore, DOS made no change in response to Comment 14. no change in response to Comment 7. Description of Changes made in the Rule as a result of Comments COMMENT 8: Supervisory signals do not get people out of building, The following changes have been made to rule, as originally proposed: unknown who receives signal from central station. If rapid CO source Section 1228.4(b)(15): the definition of “NFPA 720” was changed to what is the time frame of central station notification to FD. refer to the 2015 edition, not the 2009 edition. DOS RESPONSE TO COMMENT 8: Section 1228.4(k)(2) requires Section 1228.4(c)(2): a new exception was added; the new exception

67 Rule Making Activities NYS Register/December 9, 2015 provides that CO detection will not be required in a building during a pe- (b) [Every medium and large cemetery corporation shall file a CPA riod when no part of the building is occupied and certain other stated financial report with the division within 75 days following the close of the conditions are satisfied. cemetery's fiscal year.]The annual report shall be signed by at least two Section 1228.4(e)(2)(ii) was amended to read in the manner described officers or directors of the cemetery corporation, shall include a completed in the DOS Responses to Comments 2 and 3. division financial report, DOS-415, and shall include any Federal Form Section 1228.4(g)(1): a new exception was added; the new exception 990 filed by the cemetery for the preceding calendar or fiscal year. The allows certain previously installed plug-in or cord-type carbon monoxide Form 990 shall be filed or submitted in the manner prescribed by the divi- alarms, or battery operated carbon monoxide alarms powered by a battery sion, whether by mail, electronically or otherwise. with a life of less than 10 years, to remain in place for the remainder of (c) In addition, every medium, large and non-traditional cemetery their useful lives. corporation and any cemetery directed to do so pursuant to § 200.4(d) of Section 1228.4(g)(3): a new exception was added; the new exception this section shall also file a CPA financial report. allows certain previously installed combination CO / smoke alarms to 4. Section 200.4 of Title 19 NYCRR is amended to read as follows: remain in place for the remainder of their useful lives. § 200.4 [Cemetery]CPA financial reports. Section 1228.4(n)(3): changed to incorporate by reference the 2015 edi- (a) Every [large]medium cemetery corporation shall file a CPA financial tion, not the 2009 edition, of NFPA 720. review with the division within 90 days following the close of the No changes were made to Section 1228.4 subdivisions (a), (d), (f), (h), cemetery's fiscal year. The review shall be [audited]conducted by an inde- (i), (j), (k), (l), (m), (o) or (p). pendent certified public accountant or an independent enrolled public ac- ——————————— countant[ expressing an opinion in connection with the financial statement 1 This description of 1228.4(e)(20)(ii) reflects the amendment made filed with the division, which opinion].Itshall be supplemented by the in response to Comment 2. following data: (1) a description of the extent of the physical examination of the cash PROPOSED RULE MAKING and investments; NO HEARING(S) SCHEDULED (2) a statement concerning the internal controls for safeguarding the cash and investments; Cemetery Annual Financial Reports; Commercial Crime (3) a statement concerning compliance with N-PCL section 1507(c) and (d) indicating whether separate accounts are maintained for each per- Coverage; and Permanent Maintenance Fund Contributions petual care endowment, reflecting the principal amount, the income ap- I.D. No. DOS-49-15-00003-P portioned for the year, the cost of care charged for the year, and the excess of income credited to such account to be used in future years; (4) a statement concerning the accountability for the permanent main- PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- tenance fund, indicating whether the cemetery's records separately cedure Act, NOTICE is hereby given of the following proposed rule: identify cumulative principal reflecting allocations from the proceeds of Proposed Action: Repeal of section 200.5; renumbering of section 200.6 the sales of lots and from supplemental sources, cumulative capital gains to 200.7; addition of sections 200.1(e), 200.5, 200.6, 201.20; and amend- or losses from investments, and the retained income available for the main- ment of sections 200.1(d), 200.3, 200.4 and 200.7 of Title 19 NYCRR. tenance and preservation of the cemetery; and Statutory authority: Executive Law, section 91; Not-for-Profit Corpora- (5) a statement concerning the accountability for the perpetual care tion Law, section 1504(c) fund, indicating whether the cemetery's records separately identify cumulative principal for endowment, cumulative capital gains or losses, Subject: Cemetery annual financial reports; commercial crime coverage; and the cumulative income retained for use in future years. and permanent maintenance fund contributions. (b) Every [medium]large and non-traditional cemetery corporation Purpose: To reduce the financial reporting burden and expense on shall file a CPA financial audit with the division within 90 days following cemeteries and ensure timely, accurate and complete reports are filed. the close of the cemetery’s fiscal year. The audit shall be [reviewed]con- Text of proposed rule: 1. Subdivision (d) of Section 200.1 of Title 19 ducted by an independent certified public accountant or an independent NYCRR is amended to read as follows: enrolled public accountant[. This review will be] expressing an opinion in (d) For purposes of administration and reporting requirements, cemeter- connection with the financial statement filed with the division[ and ]. The ies shall be classified as follows: opinion shall be supplemented by the following data if applicable to the (1) The term small cemetery corporation means any cemetery filing cemetery: corporation which had, at the end of the preceding calendar year, less than (1) a description of the extent of the physical examination of the cash $[400,000]1,000,000 in total [funds]financial assets. and investments; (2) The term medium cemetery corporation means any cemetery (2) a statement concerning the internal controls for safeguarding the corporation which had, at the end of the preceding calendar year, at least cash and investments; $[400,000]1,000,000 but less than $[1,000,000]10,000,000 in total [funds- (3) a statement concerning compliance with N-PCL section 1507(c) ]financial assets and which had under $1,000,000 in total receipts in the and (d) indicating whether separate accounts are maintained for each per- preceding calendar year. petual care endowment reflecting the principal amount, the income ap- (3) The term large cemetery corporation means: i) any cemetery portioned for the year, the cost of care charged for the year, and the excess corporation which had, at the end of the preceding calendar year, of income credited to such account to be used in future years; $[1,000,000]10,000,000 or more in total [funds]financial assets; or ii) any (4) a statement concerning the accountability for the permanent main- cemetery corporation which had $1,000,000 or more in total receipts in tenance fund, indicating whether the cemetery's records separately the preceding calendar year. identify cumulative principal reflecting allocations from the proceeds of (4) The term [total funds includes all general funds, permanent main- the sales of lots and from supplemental sources, cumulative capital gains tenance funds, perpetual care funds, special trust funds and other funds or losses from investments, and the retained income available for the main- under the control of the cemetery, including both restricted and unre- tenance and preservation of the cemetery; and stricted funds.]non-traditional cemetery corporation means any cemetery (5) a statement concerning the accountability for the perpetual care corporation which does not offer and has not in the past offered full body fund, indicating whether the cemetery's records separately identify ground burials. A non-traditional cemetery corporation is excluded from cumulative principal for endowment, cumulative capital gains or losses, the terms small, medium and large cemetery corporation. and the cumulative income retained for use in future years. 2. A new subdivision (e) is added to Section 200.1 of Title 19 NYCRR (c) [Every small cemetery corporation shall file either the annual as follows: financial report form provided by the division or the cemetery corpora- (e) The term total financial assets includes all general funds, perma- tion's own financial report if it contains all the information required on the nent maintenance funds, perpetual care funds, special trust funds and division's form.]For any non-traditional cemetery, the opinion shall also other funds under the control of the cemetery, including both restricted be supplemented by the following data if applicable to the filing cemetery: and unrestricted funds, regardless of the form in which they are held. (1) a statement indicating whether funds, accounts, assets, and li- 3. Section 200.3 of Title 19 NYCRR is amended to read as follows: abilities of the cemetery corporation are kept separate and distinct from § 200.3 Filing of financial reports by cemeteries. the funds, accounts, assets, and liabilities of any related for-profit entity; (a) Every [small ]cemetery corporation shall file an annual financial (2) a statement indicating whether the income and expenses of the report with the division within [75]90 days following the close of the cemetery corporation are kept separate and distinct from the income and cemetery's fiscal year. [Such report shall be signed by at least two officers expenses of any related for-profit entity; and or directors of the cemetery corporation]The annual report shall be filed (3) a statement indicating whether any transaction between the or submitted in the form and manner prescribed by the division, whether cemetery corporation and any related for-profit entity are arm’s length, by mail, electronically, or otherwise. fair and reasonable.

68 NYS Register/December 9, 2015 Rule Making Activities

(d) The division may, upon application by a medium or large cemetery, rules and regulations it deems necessary for the proper administration of modify the reporting requirements for such cemetery if the cemetery N-PCL Article 15 (Public Cemetery Corporations). demonstrates to the satisfaction of the division that the requirements of 2. Legislative Objectives: The legislative intent of N-PCL Article 15 is, this section and the cost of compliance are onerous and unreasonable and among other things, to promote the state’s interest in the establishment, may, upon evidence of possible financial irregularity or non-compliance, maintenance and preservation of cemeteries and the proper operation of order a small or medium cemetery to comply with the requirements of the corporations which own and manage them; to protect the well-being of paragraph (b) of this section. citizens, to promote the public welfare and to prevent cemeteries from 5. Sections 200.5 of Title 19 NYCRR is repealed and a new section falling into disrepair and dilapidation and becoming a burden upon the 200.5 is added as follows: community; and to ensure that cemeteries are conducted on a non-profit § 200.5 Additional information and reports. basis for the mutual benefit of the public. Section 1504 of the Not-for- Nothing herein limits or impairs the power and authority of the Profit Corporation Law authorizes the division of cemeteries to inspect cemetery board pursuant to N-PCL section 1508(b) and other provisions cemeteries and their business records and to ensure compliance with of Article 15 of the N-PCL. Article 15. 6. Section 200.6 of Title 19 NYCRR is renumbered as section 200.7 3. Needs and Benefits: The proposed revision of 19 NYCRR Part 200 is and a new Section 200.6 is added as follows: needed to reduce the financial reporting burden and expense on cemeteries § 200.6 Commercial crime insurance coverage. while simultaneously ensuring that the Division of Cemeteries (the divi- (a) Every cemetery corporation shall carry commercial crime insur- sion) and the Cemetery Board (the board) are provided with complete, ac- ance or similar insurance coverage for the acts or omissions of cemetery curate, and timely financial reports to allow proper oversight of cemeteries. directors, officers, and employees as well as volunteers who handle money, The current regulation defines a small cemetery as having less than accounts or securities for the cemetery. $400,000 in total funds; defines a medium cemetery as having at least (b) The annual financial report filed with the division shall set forth the $400,000 and less than $1 million in total funds and defines a large amount of commercial crime coverage, the classes of persons included, cemetery as having at least $1 million in funds. Small cemeteries may file the name of the carrier/issuer, the policy number, and the expiration date annual financial reports with no Certified Public Accountant (CPA) of coverage. review; medium cemeteries are required to file a CPA review; and large (c) The amount of coverage required is $15,000 or 10% of total cemeteries must file CPA audits. The proposed revision would change the financial assets, whichever is greater, up to a maximum of $500,000. definition of small cemetery to those with less than $1 million in funds; Notwithstanding the foregoing: medium cemeteries to those with at least $1 million but less than $10 mil- (1) the division may, at its discretion, order a cemetery to obtain lion in funds; and large cemeteries to those with $10 million or more. This commercial crime coverage in excess of $500,000 if it determines that an will significantly reduce the administrative burden and expense of those increase in coverage is appropriate and that such coverage is readily cemeteries that move from the large to medium category and from the available in the marketplace. A cemetery subject to such order may file a medium to small category. The proposed revision also creates a new class protest with the Cemetery Board pursuant to section 200.2(b); and of cemeteries - non-traditional cemetery – for cemeteries that do not offer (2) Upon application as prescribed by the division showing good full body burial. This change will allow the division to more closely review cause for such relief, a cemetery may request that the division reduce, the financial operation of these cemeteries which are often closely related waive or modify the requirements under this section. Good cause may to for-profit businesses. The proposed revision also gives cemeteries more include proof that the cemetery is unable to obtain commercial crime in- time to file their annual reports with the division, allows cemeteries to surance or similar coverage despite diligent effort, or that the cost of such seek a further reduction in their financial reporting requirements and al- coverage at the level required by this section is onerous and unreasonable. lows the division to increase reporting requirements if it finds evidence of 7. Former section 200.6 of Title 19 NYCRR, which has been renum- possible financial irregularity or non-compliance with cemetery law. The bered as Section 200.7 pursuant to these amendments, is amended to read proposed revision would also require all cemeteries to file a standard as follows: department of state form as part of their annual financial reports which § 200.7. Location of offices. will provide significant uniformity in the way cemeteries report their fi- (a) The principal office of the State Cemetery Board is located at 123 nances and financial operations. This in turn will assist review of cemetery William Street, New York, NY 10038-3804. operations by the division and the board. The proposed revision also makes (b) All communications, papers, maps or copies thereof, reports or it clear that the promulgation of these regulations in no way limits the documents shall be addressed to or filed in the principal office of the State power and authority of the cemetery board under section 1508(b) and Cemetery Board unless otherwise directed by the division. other provisions of the N-PCL to require cemeteries to provide additional (c) [All orders]Orders by the State Cemetery Board [shall]may be filed reports and information beyond what is required by the regulation. The in its principal office or its Albany, New York branch. revision also replaces a requirement that cemeteries carry fidelity bond (d) There are branch offices at One Commerce Plaza, 99 Washington coverage – a type of insurance that is no longer generally available – with Avenue, Albany, NY 12231-0001; State Office Building, 207 Genesee a requirement that they obtain commercial crime coverage – a type of in- Street, Utica, NY 13501-3744; Hughes State Office Building, 333 E. surance that is generally available. The proposed regulation sets a cap on Washington Street, Syracuse, NY 13202-1418; 44 Hawley Street, Bing- the amount of coverage that would be required but allows cemeteries to hamton NY 13901 and 65 Court Street, Buffalo, NY 14202-3471. seek waivers or modifications upon a showing of good cause and gives the 8. A new section 201.20 is added to Title 19 NYCRR as follows: division the flexibility to require greater coverage when it is available and § 201.20 Permanent maintenance fund collections and contributions. would be appropriate. The addition of new section 201.20 will require (a) All permanent maintenance fund deposits required by N-PCL sec- cemeteries to make their required permanent maintenance fund payments tion 1507 shall be made at least quarterly. at least quarterly. Some cemeteries have been waiting until the end of the (b) A cemetery that receives payment in installments or over time for a year to make their fund payments which causes those cemeteries to lose lot, plot or part thereof, shall deposit to the permanent maintenance fund potential interest and gains. The new section would also give cemeteries the full amount required by N-PCL section 1507 on the entire sale either: that engage in installment sales two methods of making their permanent (1) in lump sum at the time the contract is signed and any initial pay- maintenance fund deposits for those sales. Currently there is no regulation ment is received; or of how and when those deposits are made. (2) by depositing at least ten percent (10%) of any initial payment 4. Costs: and each installment payment to the permanent maintenance fund as such a. Regulated Parties. Cemeteries that are moved from the large to payments are received until the full amount required by N-PCL section medium or from the medium to small categories will experience decreased 1507 on the entire sale has been deposited to the fund. costs related to their annual financial reports; decreased costs will be most Text of proposed rule and any required statements and analyses may be significant for newly categorized small cemeteries since they will no lon- obtained from: Antonio Milillo, Department of State, Office of General ger be required to file CPA reviewed reports. Non-traditional cemeteries Counsel, One Commerce Plaza, 99 Washington Avenue, Albany, NY that have not been submitting CPA financial audits will see their costs 12231, (518) 474-6740, email: [email protected] rise. With regard to commercial crime insurance coverage, insurance representatives and regulated entities have indicated that such coverage is Data, views or arguments may be submitted to: Same as above. widely available and relatively inexpensive when the amount of coverage Public comment will be received until: 45 days after publication of this does not exceed $500,000 – the amount of the cap in the proposed notice. regulation. The annual premium for that maximum coverage is expected Regulatory Impact Statement to be between $500 and $750. 1. Statutory Authority: Executive Law section 91 authorizes the secre- b. The agency, the State and local governments. No increase or decrease tary of state to adopt rules which shall regulate and control the exercise of in costs is anticipated. the powers of the department of state, and Not-For-Profit Corporation 5. Local Government Mandates: The proposed amendment does not Law (N-PCL) section 1504 (c) authorizes the cemetery board to adopt impose any new programs, services, duties or responsibilities upon any

69 Rule Making Activities NYS Register/December 9, 2015 county, city, town, village, school district, fire district or other special not been submitting CPA financial audits will see their costs rise. With district. regard to commercial crime insurance coverage, insurance representatives 6. Paperwork: For those cemeteries that have not been filing the Depart- and regulated entities have indicated that such coverage is widely avail- ment of State annual report form, making this form mandatory will able and relatively inexpensive when the amount of coverage does not increase their paperwork. Cemeteries that have been filing the report will exceed $500,000 – the amount of the cap in the proposed regulation. The not see an increase in paperwork from this requirement. Cemeteries that annual premium for that maximum coverage is expected to be between move from the medium category to the small category and from the large $500 and $750. to the medium category with see their paperwork decrease. Non-traditional 4. Minimizing Adverse Impact: The proposed regulation adds flex- cemeteries that have not been filing CPA financial audits will see an ibility, it permits cemeteries to seek modification of the financial reporting increase in paperwork. requirement, and modification or waiver of the commercial crime insur- 7. Duplication: These regulations would not duplicate existing State or ance coverage requirement. Also, the proposed regulation generally re- Federal regulations. duces existing burdens. 8. Alternatives: These proposed regulations are the result of lengthy 5. Rural Area Participation: The process of drafting this regulation has meetings with interested parties that spanned over more than a year. Most been an open process. The regulation was presented to the New York State of the discussions and changes related to small details, such as the ap- Association of Cemeteries (NYSAC), the New York State Funeral Direc- propriate cap for commercial crime coverage and the appropriate way for tors Association (NYSFDA) and individual cemeteries. Copies of the cemeteries that engage in installment sales to make their permanent main- proposed regulation also have been made available to persons in atten- tenance fund deposits related to those sales. The interested parties did not dance at meetings of the New York State Cemetery Board. suggest broad alternatives to these proposed regulations. Job Impact Statement 9. Federal Standards: At this time there are no federal standards with A Job Impact Statement is not required because it is evident from the regard to the filing of cemetery financial reports. nature and purpose of this regulation that it would neither create nor elim- 10. Compliance Schedule: The regulatory amendments will be effective inate employment positions and/or opportunities and therefore would have immediately upon the publication of a Notice of Adoption in the State no adverse impact on jobs or employment opportunities in New York State. Register. Regulatory Flexibility Analysis 1. Effect of Rule: There are 1771 cemeteries throughout the State that are under the jurisdiction of the Division of Cemeteries and which will be Department of Taxation and affected by this rule. This rule would not affect any local governments. 2. Compliance Requirements: This proposed rule modifies existing Finance financial filing and reporting requirements for cemeteries. In many cases requirements and costs are lessened, but in some cases they are increased. An insurance requirement is modified to reflect the type of coverage now available, and uniform requirements for the deposit of permanent mainte- NOTICE OF ADOPTION nance funds are added. 3. Professional Services: Many cemeteries will no longer be required to Fuel Use Tax on Motor Fuel and Diesel Motor Fuel and the Art. engage a Certified Public Accountant (CPA) in order to comply with the 13-A Carrier Tax Jointly Administered Therewith regulations modified by this proposed rule, but some will now have to engage a CPA. I.D. No. TAF-34-15-00004-A 4. Compliance Costs: Many cemeteries will experience decreased costs Filing No. 1017 related to their annual financial reports; cemeteries that will no longer be Filing Date: 2015-11-23 required to file reports prepared by a CPA will realize the most significant Effective Date: 2015-11-23 decreased costs. Non-traditional cemeteries that have not been submitting CPA financial audits will see their costs rise. With regard to commercial crime insurance coverage, insurance representatives and regulated entities PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- have indicated that such coverage is widely available and relatively inex- cedure Act, NOTICE is hereby given of the following action: pensive when the amount of coverage does not exceed $500,000 – the Action taken: Amendment of section 492.1(b)(1) of Title 20 NYCRR amount of the cap in the proposed regulation. The annual premium for Statutory authority: Tax Law, sections 171, subd. First; 301-h(c), 509(7), such maximum coverage is expected to be between $500 and $750. 523(b) and 528(a) 5. Economic and Technological Feasibility: It is economically and technologically feasible for cemeteries to comply with the regulation. Subject: Fuel use tax on motor fuel and diesel motor fuel and the art. 13-A 6. Minimizing Adverse Impact: This regulation generally decreases the carrier tax jointly administered therewith. cost of compliance with the financial reporting requirements of the exist- Purpose: To set the sales tax component and the composite rate per gallon ing regulation, and also adds flexibility so that cemeteries may request for the period October 1, 2015 through December 31, 2015. further reduced requirements. Text or summary was published in the August 26, 2015 issue of the Reg- 7. Small Business and Local Government Participation: The regulation ister, I.D. No. TAF-34-15-00004-P. was presented to the New York State Association of Cemeteries (NYSAC), Final rule as compared with last published rule: No changes. the New York State Funeral Directors Association (NYSFDA) and individual cemeteries. Copies of the proposed regulation were also made avail- Text of rule and any required statements and analyses may be obtained able to persons in attendance at meetings of the New York State Cemetery from: Kathleen D. O'Connell, Tax Regulations Specialist, Department of Board. NYSFDA had no comments or objections to the proposed Taxation and Finance, Office of Counsel, Building 9, W.A. Harriman regulation. NYSAC and individual cemeteries did comment on and offer Campus, Albany, NY 12227, (518) 530-4153, email: modifications to the proposed regulation, many of which have been [email protected] incorporated into the proposed text. Assessment of Public Comment Rural Area Flexibility Analysis An assessment of public comment is not submitted with this notice because 1. Types and Estimated Number of Rural Areas: A majority of the 1771 the rule is within the definition contained in section 102(2)(a)(ii) of the cemeteries regulated by the Division of Cemeteries are located in rural State Administrative Procedure Act. areas. 2. Reporting, Recordkeeping, and other Compliance Requirements and PROPOSED RULE MAKING Professional Services: All 1771 cemeteries would be required to comply NO HEARING(S) SCHEDULED with these modified regulations and conform their reporting and recordkeeping methods to them. The Department of State financial reporting Fuel Use Tax on Motor Fuel and Diesel Motor Fuel and the Art. form which had been voluntary for cemeteries to file will now be mandatory. 13-A Carrier Tax Jointly Administered Therewith 3. Costs: Many cemeteries will experience decreased costs related to I.D. No. TAF-49-15-00004-P their annual financial reports; the most significant decreased costs will be realized by the cemeteries that will no longer be required to file reports prepared by a certified public accountant (CPA). This is especially true for PURSUANT TO THE PROVISIONS OF THE State Administrative Pro- rural cemeteries that previously were categorized as medium cemeteries cedure Act, NOTICE is hereby given of the following proposed rule: but now will be categorized as small. Non-traditional cemeteries that have Proposed Action: Amendment of section 492.1(b)(1) of Title 20 NYCRR.

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Statutory authority: Tax Law, sections 171, subd. First; 301-h(c), 509(7), 523(b) and 528(a) Subject: Fuel use tax on motor fuel and diesel motor fuel and the art. 13-A carrier tax jointly administered therewith. Purpose: To set the sales tax component and the composite rate per gallon for the period January 1, 2016 through March 31, 2016. Text of proposed rule: Pursuant to the authority contained in subdivision First of section 171, subdivision (c) of section 301-h, subdivision 7 of section 509, subdivision (b) of section 523, and subdivision (a) of section 528 of the Tax Law, the Commissioner of Taxation and Finance hereby proposes to make and adopt the following amendment to the Fuel Use Tax Regulations, as published in Article 3 of Subchapter C of Chapter III of Title 20 of the Official Compilation of Codes, Rules and Regulations of the State of New York. Section 1. Paragraph (1) of subdivision (b) of section 492.1 of such regulations is amended by adding a new subparagraph (lxxxi) to read as follows:

Motor Fuel Diesel Motor Fuel Sales Tax Composite Aggregate Sales Tax Composite Aggregate Component Rate Rate Component Rate Rate

(lxxx) October - December 2015 15.7 23.7 41.5 16.0 24.0 40.05 (lxxxi) January - March 2016 14.2 22.2 39.2 16.0 24.0 39.25 Text of proposed rule and any required statements and analyses may be obtained from: Kathleen D. O'Connell, Tax Regulations Specialist, Department of Taxation and Finance, Office of Counsel, Building 9, W.A. Harriman Campus, Albany, NY 12227, (518) 530-4153, 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 this notice. Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis and Job Impact Statement Statements and analyses are not submitted with this notice because the proposed rule is within the definition contained in section 102(2)(a)(ii) of the State Administrative Procedure Act.

71 Rule Making Activities NYS Register/December 9, 2015

HEARINGS SCHEDULED FOR PROPOSED RULE MAKINGS Agency I.D. No. Subject Matter Location—Date—Time Health, Department of HLT-46-15-00006-P ...... Early Intervention Program School of Public Health Auditorium, University at Albany, One University Place, Rensselaer, NY—Dec. 21, 2015, 1:00 p.m. - 3:00 p.m. State, Department of DOS-47-15-00016-P ...... State Energy Conservation Construction Department of State, 99 Washington Ave., Code (the “Energy Code”) Conference Rm. 505, Albany, NY—Jan. 25, 2016, 10:00 a.m. Perry B. Duryea Jr. State Office Bldg., 250 Veterans Memorial Hwy., Training Rm. 1A16, Hauppauge, NY—Jan. 26, 2016, 10:00 a.m. Hughes State Office Bldg., 333 E. Washington St., Main Hearing Rm. - 1st Fl., Syracuse, NY—Jan. 27, 2016, 10:00 a.m. Walter J. Mahoney State Office Bldg., 65 Court St., Hearing Rm. 4, Buffalo, NY—Jan. 28, 2016, 10:00 a.m. Department of State, 123 William St., Confer- ence Rm. 231, New York, NY—Jan. 29, 2016, 10:00 a.m. DOS-47-15-00017-P ...... Toadopt updated provisions for the Uniform Department of State, 99 Washington Ave., Fire Prevention and Building Code Conference Rm. 505, Albany, NY—Jan. 25, (“Uniform Code”) 2016, 10:00 a.m. Perry B. Duryea Jr. State Office Bldg., 250 Veterans Memorial Hwy., Training Rm. 1A16, Hauppauge, NY—Jan. 26, 2016, 10:00 a.m. Hughes State Office Bldg., 333 E. Washington St., Main Hearing Rm. - 1st Fl., Syracuse, NY—Jan. 27, 2016, 10:00 a.m. Walter J. Mahoney State Office Bldg., 65 Court St., Hearing Rm. 4, Buffalo, NY—Jan. 28, 2016, 10:00 a.m.

72 NYS Register/December 9, 2015 Action Pending Index

ACTION PENDING INDEX

The action pending index is a list of all proposed rules which are in the action pending index, use the identification number to currently being considered for adoption. A proposed rule is locate the text of the original notice of proposed rule making. added to the index when the notice of proposed rule making is The identification number contains a code which identifies the first published in the Register. A proposed rule is removed from agency, the issue of the Register in which the notice was printed, the index when any of the following occur: (1) the proposal is the year in which the notice was printed and the notice's serial adopted as a permanent rule; (2) the proposal is rejected and number. The following diagram shows how to read identification withdrawn from consideration; or (3) the proposal's notice number codes. expires. Most notices expire in approximately 12 months if the agency Agency Issue Year Serial Action does not adopt or reject the proposal within that time. The code number published number Code expiration date is printed in the second column of the action pending index. Some notices, however, never expire. Those no- AAM 01 12 00001 P tices are identified by the word “exempt” in the second column. Actions pending for one year or more are preceded by an Action codes: P — proposed rule making; EP — emergency and asterisk(*). proposed rule making (expiration date refers to proposed rule); For additional information concerning any of the proposals listed RP — revised rule making

Agency I.D. No. Expires Subject Matter Purpose of Action

AGRICULTURE AND MARKETS, DEPARTMENT OF

AAM-17-15-00011-RP ...... 05/19/16 Growthandcultivation of industrial hemp To set forth procedures for authorizing and regulating the growth and cultivation of industrial hemp

AAM-28-15-00003-P ...... 07/14/16 Incorporate by reference in 1 NYCRR of the To incorporate by reference in 1 NYCRR the 2015 edition of National Institute of Standards 2015 edition of NIST Handbook 133 and Technology (‘‘NIST’’) Handbook 133

AAM-32-15-00001-P ...... 08/11/16 Petroleum products and delivery devices; To repeal requirements relating to petroleum exemption of maple syrup and honey devices and products, and to maple syrup and producers from food processing honey producers

AUDIT AND CONTROL, DEPARTMENT OF

AAC-39-15-00007-P ...... 09/29/16 Rate of regular interest, rate of estimate To conform the rate of regular interest and the earnings and mortality tables rate of estimated earnings to the current rates established by the Comptroller

AAC-41-15-00001-P ...... 10/13/16 Mortality and service tables for valuation To update the mortality and service tables for purposes valuation purposes

AAC-41-15-00002-EP ...... 10/13/16 Mortality tables for the determination of To conform regulatory language to the most benefits recently updated mortality tables for the determination of benefits

CHILDREN AND FAMILY SERVICES, OFFICE OF

CFS-20-15-00004-P ...... 05/19/16 Casework contact for foster children placed To conform NYS standards for casework out of state contacts of foster children under age 18 who are placed out of state to federal standards

CFS-39-15-00001-EP ...... 09/29/16 Durable and consistent safeguards for To create an immediate set of durable and vulnerable persons consistent safeguards for vulnerable persons

CFS-49-15-00005-P ...... 12/08/16 Youth development program funding and To implement changes in the Executive Law implementation regarding youth development program funding and implementation

73 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

CIVIL SERVICE, DEPARTMENT OF

CVS-01-15-00023-P ...... 01/07/16 JurisdictionalClassification To classify a position in the non-competitive class

CVS-11-15-00004-P ...... 03/17/16 JurisdictionalClassification To classify a position in the non-competitive class

CVS-19-15-00005-P ...... 05/12/16 JurisdictionalClassification To classify a position in the non-competitive class

CVS-29-15-00006-P ...... 07/21/16 JurisdictionalClassification To delete a position from and classify positions in the exempt class

CVS-29-15-00007-P ...... 07/21/16 JurisdictionalClassification To delete positions from the non-competitive class

CVS-29-15-00008-P ...... 07/21/16 JurisdictionalClassification To classify positions in the non-competitive class

CVS-29-15-00009-P ...... 07/21/16 JurisdictionalClassification To classify a position in the non-competitive class

CVS-29-15-00010-P ...... 07/21/16 JurisdictionalClassification To delete positions from the exempt class

CVS-29-15-00011-P ...... 07/21/16 JurisdictionalClassification To classify a position in the exempt class

CVS-34-15-00006-P ...... 08/25/16 Jurisdictional Classification To classify a position in the exempt class

CVS-34-15-00007-P ...... 08/25/16 Jurisdictional Classification To classify a position in the exempt class and to classify a position in the non-competitive class

CVS-34-15-00008-P ...... 08/25/16 Jurisdictional Classification To delete positions from the non-competitive class

CVS-34-15-00009-P ...... 08/25/16 Jurisdictional Classification To delete positions from and classify positions in the non-competitive class

CVS-34-15-00010-P ...... 08/25/16 Jurisdictional Classification To classify a position in the non-competitive class

CVS-34-15-00011-P ...... 08/25/16 Jurisdictional Classification To delete positions from and classify positions in the exempt class

CVS-34-15-00012-P ...... 08/25/16 Jurisdictional Classification To delete positions from and classify positions in the exempt class

CVS-34-15-00013-P ...... 08/25/16 Jurisdictional Classification To delete a position from and classify a position in the exempt class

CVS-36-15-00001-P ...... 09/08/16 Jurisdictional Classification To classify a position in the non-competitive class

CVS-36-15-00002-P ...... 09/08/16 Jurisdictional Classification To classify positions in the exempt class

CVS-36-15-00003-P ...... 09/08/16 Jurisdictional Classification To classify positions in the exempt class

CVS-36-15-00004-P ...... 09/08/16 Jurisdictional Classification To classify a position in the non-competitive class

74 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

CIVIL SERVICE, DEPARTMENT OF CVS-36-15-00005-P ...... 09/08/16 Jurisdictional Classification To delete a position from and classify a position in the exempt class

CVS-36-15-00006-P ...... 09/08/16 Jurisdictional Classification To classify a position in the non-competitive class

CVS-36-15-00007-P ...... 09/08/16 Jurisdictional Classification To classify a position in the non-competitive class

CVS-36-15-00008-P ...... 09/08/16 Jurisdictional Classification To classify a position in the non-competitive class

CVS-36-15-00009-P ...... 09/08/16 Jurisdictional Classification To classify positions in the exempt class

CVS-36-15-00010-P ...... 09/08/16 Jurisdictional Classification To classify positions in the exempt class

CVS-36-15-00011-P ...... 09/08/16 Jurisdictional Classification To classify positions in the non-competitive class

CVS-36-15-00012-P ...... 09/08/16 Jurisdictional Classification To delete a position from and classify a position in the non-competitive class

CVS-36-15-00013-P ...... 09/08/16 Jurisdictional Classification To delete positions from and classify positions in the non-competitive class

CVS-36-15-00014-P ...... 09/08/16 Jurisdictional Classification To delete a position from and classify positions in the non-competitive class

CVS-36-15-00015-P ...... 09/08/16 Jurisdictional Classification To delete positions/subheadings from and classify positions in the exempt class and delete positions from non-competitive class

CVS-36-15-00016-P ...... 09/08/16 Jurisdictional Classification To delete positions from and classify positions in the non-competitive class

CVS-36-15-00017-P ...... 09/08/16 Jurisdictional Classification To classify a position in the exempt class and to delete a position from the non-competitive class

CVS-36-15-00018-P ...... 09/08/16 Jurisdictional Classification To delete positions from and classify positions in the non-competitive class

CVS-44-15-00004-P ...... 11/03/16 Jurisdictional Classification To classify a position in the exempt class

CVS-44-15-00005-P ...... 11/03/16 Jurisdictional Classification To classify positions in the non-competitive class

CVS-44-15-00006-P ...... 11/03/16 Jurisdictional Classification To classify positions in the exempt class

CVS-44-15-00007-P ...... 11/03/16 Jurisdictional Classification To classify positions in the exempt class

CVS-44-15-00008-P ...... 11/03/16 Jurisdictional Classification To classify positions in the non-competitive class

CVS-44-15-00009-P ...... 11/03/16 Jurisdictional Classification To classify positions in the exempt class

CVS-44-15-00010-P ...... 11/03/16 Jurisdictional Classification To classify positions in the non-competitive class

75 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

CIVIL SERVICE, DEPARTMENT OF CVS-44-15-00011-P ...... 11/03/16 Jurisdictional Classification To delete a position from and classify positions in the exempt class

CVS-44-15-00012-P ...... 11/03/16 Jurisdictional Classification To classify a subheading and positions in the non-competitive class

CVS-44-15-00013-P ...... 11/03/16 Jurisdictional Classification To classify a position in the non-competitive class

CVS-44-15-00014-P ...... 11/03/16 Jurisdictional Classification To delete a position from and classify a position in the non-competitive class

CVS-44-15-00015-P ...... 11/03/16 Jurisdictional Classification To classify a position in the non-competitive class

CVS-44-15-00016-P ...... 11/03/16 Jurisdictional Classification To delete a position from and classify a position in the non-competitive class

CVS-44-15-00017-P ...... 11/03/16 Jurisdictional Classification To classify a position in the non-competitive class

CVS-44-15-00018-P ...... 11/03/16 Jurisdictional Classification To classify positions in the exempt class and to classify a position from the non-competitive class

CVS-45-15-00003-P ...... 11/09/16 Jurisdictional Classification To classify positions in the exempt class

CVS-45-15-00004-P ...... 11/09/16 Jurisdictional Classification To classify a position in the exempt class

CVS-45-15-00005-P ...... 11/09/16 Jurisdictional Classification To classify a position in the exempt class

CVS-45-15-00006-P ...... 11/09/16 Jurisdictional Classification To classify a position in the non-competitive class

CVS-45-15-00007-P ...... 11/09/16 Jurisdictional Classification To classify positions in the non-competitive class

CORRECTION, STATE COMMISSION OF

CMC-45-15-00024-P ...... 11/09/16 Manner in which significant correctional facility To allow electronic filing of reportable incidents incidents are reported to the Commission of to the Commission of Correction Correction

CORRECTIONS AND COMMUNITY SUPERVISION, DEPARTMENT OF

CCS-08-15-00002-P ...... 02/25/16 Rochester Correctional Facility To correct the address for Rochester Correctional facility

CCS-35-15-00018-P ...... 09/01/16 Applicability of Title and Definitions Update the Department name and add new definitions

ECONOMIC DEVELOPMENT, DEPARTMENT OF

EDV-49-15-00002-EP ...... 12/08/16 Employee Training Incentive Program Establish procedures for the implementation of the Employee Training Incentive Program

76 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

EDUCATION DEPARTMENT

*EDU-48-14-00008-P ...... 12/03/15 FieldtestsforState assessments, alternate To clarify that school districts must administer assessments and Regents examinations field tests in the schools for which they are assigned

EDU-10-15-00011-P ...... 03/10/16 Off-premises delivery of prescription To require pharmacies to obtain patient consent medications by New York resident pharmacies before automatically delivering new or refilled prescriptions

EDU-13-15-00021-P ...... 03/31/16 Supplementary Teaching Certificates in To provide additional pathways for teacher Bilingual Education and English to Speakers of certification candidates to obtain supplementary Other Languages (ESOL) bilingual education extension and the ESOL supplementary certificate, for a three year period to conclude on June 30, 2018

EDU-27-15-00008-ERP ...... 07/07/16 School receivership To implement Education Law section 211-f, as added by Part EE, Subpart H of Ch. 56 of the Laws of 2015

EDU-27-15-00019-ERP ...... 07/07/16 Annual Professional Performance Reviews of To Implement Subparts D and E of Part EE of Classroom Teachers and Building Principals Chapter 56 of the Laws of 2015

EDU-40-15-00004-EP ...... 10/06/16 Academic Intervention Services (AIS) To establish modified requirements for AIS during the 2015-2016 school year

EDU-40-15-00005-EP ...... 10/06/16 Administration of vaccinations by pharmacists, To implement Chapter 46 of the Laws of 2015 including immunizations to prevent tetanus, to authorize pharmacists to administer tetanus, diphtheria or pertussis disease diphtheria or pertussis vaccinations

EDU-40-15-00007-P ...... 10/06/16 Students with Disabilities Diploma To extend to students with disabilities the option Requirements to graduate with a Local Diploma via an Appeals Process on Regents examination passing scores

EDU-40-15-00008-P ...... 10/06/16 Mathematics graduation requirements To provide flexibility in the transition to Common Core-aligned Regents Examinations in Mathematics

EDU-40-15-00009-EP ...... 10/06/16 Graduate-level teacher and educational To establish minimum admission standards for leadership programs. graduate level teacher and leader prepartion programs and requirements

EDU-45-15-00013-EP ...... 11/09/16 New York State Common Core Learning To provide additional opportunities for students Standards (CCLS) who began grade 9 in 2013 to meet diploma requirements by passing either the Regents comprehensive Examination in English or the Common Core ELA examination at the January 2016 and June 2016 test

EDU-45-15-00014-P ...... 11/30/16 Preschool special education programs and To enact requirements relating to appointment of services 1:1 aide by Committee on Special Education (CSE); Special Education Itinerant Services (SEIS); related services; and standards for approved preschool providers

EDU-45-15-00015-P ...... 11/09/16 Continuing education requirements for Implement mandatory continuing education Licensed Marriage and Family Therapists requirements, establish standards for acceptable education and approval of providers

EDU-45-15-00016-P ...... 11/09/16 Continuing education requirements for Implement mandatory continuing education Licensed Creative Arts Therapists requirements, establish standards for acceptable education and approval of providers

77 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

EDUCATION DEPARTMENT EDU-45-15-00017-P ...... 11/09/16 Continuing education requirements for Implement mandatory continuing education Licensed Mental Health Counselors requirements, establish standards for acceptable education and approval of providers

EDU-45-15-00018-P ...... 11/09/16 Continuing education requirements for Implement mandatory continuing education Licensed Psychoanalysts requirements, establish standards for acceptable education and approval of providers

EDU-48-15-00007-EP ...... 12/01/16 Instruction in Cardiopulmonary Resuscitation Provide limited exemption to students with (CPR) and Use of Automated External disabilities from CPR/AED required instruction Defibrillators (AEDs)

EDU-48-15-00008-P ...... 12/01/16 Licensing Examination Requirements for Dental To address a name-change by the testing Hygienists agency for Part II of the licensing exam; and remove remedial education requirements

EDU-48-15-00009-EP ...... 12/01/16 Extension and expansion of the Collaborative To implement Chapter 238 of the Laws of 2015 Drug Therapy Management (CDTM) to extend and expand the CDTM program for Demonstration Program for Pharmacists pharmacists

EDU-49-15-00013-P ...... 12/08/16 Voluntaryinstitutional accreditation for Title IV See attached. purposes

ENVIRONMENTAL CONSERVATION, DEPARTMENT OF

ENV-04-15-00006-P ...... 01/28/16 Regulationsgoverningtherecreational harvest Extend the recreational winter flounder fishing of winter flounder open season from April 1 - May 30 to March 1 - December 31

ENV-19-15-00010-P ...... 05/12/16 Fishertrapping seasons and bag limits and Revise existing fisher seasons, establish a new general trapping regulations for furbearers season in central/western NY, update and clarify general trapping regulations

ENV-23-15-00008-P ...... 07/28/16 Environmental Remediation - Brownfield To amend the Environmental Remediation Cleanup Program Program regulations that pertain to the Brownfield Cleanup Program

ENV-24-15-00013-P ...... 06/16/16 Rulemaking to implement ECL 17-0826-a To implement the reporting, notification and record keeping requirements of ECL 17-0826-a

ENV-27-15-00004-P ...... 08/23/16 Incorporation by reference of Federal NESHAP Incorporation by reference of Federal NESHAP and NSPS rules and NSPS

ENV-34-15-00003-P ...... 08/25/16 Sportfishing and associated activities To revise sportfishing regulations & associated activities including the commercial collection, sale and use of baitfish

ENV-34-15-00028-P ...... 08/25/16 Qualifications for License Issuing Agents and To remove regulatory requirements that exclude Wildlife Rehabilitators individuals with felonies from obtaining certain licenses and authorizations

ENV-44-15-00001-EP ...... 11/03/16 Sanitary Condition of Shellfish Lands To reclassify shellfish lands to prohibit the harvest of shellfish

ENV-45-15-00028-P ...... 11/09/16 Science-based State sea-level rise projections To establish a common source of sea-level rise projections for consideration in relevant programs and decision-making

78 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

FINANCIAL SERVICES, DEPARTMENT OF

DFS-18-15-00009-P ...... 05/05/16 Title Insurance Rates, Expenses and Charges To insure proper, non-excessive rates, compliance with Ins. Law 6409(d), and reasonable charges for ancillary services

DFS-43-15-00004-P ...... 10/27/16 ValuationofIndividual and Group Accident and To adopt the 2012 Group Long-Term Disability Health Insurance Reserves Valuation Table

GAMING COMMISSION, NEW YORK STATE

SGC-39-15-00005-P ...... 09/29/16 Thoroughbred restricted time periods for To enhance the integrity and safety of various drugs thoroughbred horse racing

SGC-39-15-00006-P ...... 09/29/16 Reimbursement of awards for capital Clarify when VLG agent must reimburse State improvement projects at video lottery gaming upon divestment of a capital improvement for (‘‘VLG’’) facilities which capital award was received

SGC-44-15-00019-P ...... 11/03/16 Reporting requirements for a race horse that To ensure that the betting public is properly has been castrated and is classified as a informed that a race horse that was previously gelding an intact male has been castrated

SGC-46-15-00004-P ...... 11/17/16 To require claimant to indicate on claim form To preserve the integrity of pari-mutuel racing whether commission at claimant’s expense while generating reasonable revenue for the shall test a claimed horse for drug use support of government

SGC-46-15-00007-P ...... 11/17/16 Requirement of specific minimum penalties for To enhance the integrity and safety of certain multiple medication violations thoroughbred horse racing

SGC-48-15-00006-P ...... 12/01/16 Per Se thresholds and related rule To preserve the integrity of pari-mutuel racing amendments for cobalt, ketoprofen, while generating reasonable revenue for the isoflupredone and albuterol support of government

HEALTH, DEPARTMENT OF

*HLT-14-94-00006-P ...... exempt Payment methodology for HIV/AIDS outpatient To expand the current payment to incorporate services pricing for services

*HLT-36-14-00012-RP ...... 12/09/15 Personal Care Services Program (PCSP) and To establish definitions, criteria and Consumer Directed Personal Assistance requirements associated with the provision of Program (CDPAP) continuous PC and continuous CDPA services

HLT-08-15-00003-P ...... 02/25/16 Supplementary Reports of Certain Congenital To increase maximum age of reporting certain Anomalies for Epidemiological Surveillance; birth defects to the Congenital Malformations Filing Registry

HLT-11-15-00019-P ...... 03/17/16 Standards for Individual Onsite Water Supply Establishes minimum water quality standards for and Individual Onsite Wastewater Treatment individual onsite water supply systems Systems

HLT-16-15-00014-P ...... 04/21/16 RateRationalization – Prevocational Services, To establish new rate methodology effective July Respite, Supported Employment and 1, 2015 Residential Habilitation

HLT-18-15-00008-P ...... 05/05/16 Computed Tomography (CT) Quality Assurance To protect the public from the adverse effects of ionizing radiation.

HLT-24-15-00006-P ...... 06/16/16 Patient Access of Laboratory Test Results To give patients a right to access medical records directly from clinical laboratories, including completed lab. test reports

HLT-30-15-00005-P ...... 07/28/16 Practice of radiologic technology To update regulations related to the practice of radiologic technology

79 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

HEALTH, DEPARTMENT OF HLT-30-15-00006-P ...... 07/28/16 Medicaid provider enrollment To make technical, conforming changes to regulations governing the enrollment of Medicaid providers of care, services and supplies

HLT-30-15-00007-P ...... 07/28/16 Reciprocal Emergency Medical Technician To replace the emergency medical technician- Certification Requirements intermediate category with the advanced emergency medical technician category

HLT-30-15-00008-P ...... 07/28/16 Controlled Substances for EMS Agency Agent To amend the regulations regarding the EMS and Requirements for an Advanced Life Agency Agent and the Requirements for an Support System Advanced Life Support System

HLT-30-15-00009-P ...... 07/28/16 Requirements for Manufacturers and To clarify and use language consistent with Distributors Regarding Controlled Substances current terminology used by the State Board of Pharmacy

HLT-34-15-00005-EP ...... 08/25/16 Prohibit Additional Synthetic Cannabinoids To add additional chemicals to the list of explicitly prohibited synthetic cannabinoids

HLT-39-15-00015-P ...... 09/29/16 Women Infants and Children (WIC) Program To align NYS WIC Program operations with Vendor Applicant Enrollment Criteria current federal requirements by amending the existing vendor enrollment criteria

HLT-42-15-00016-P ...... 10/20/16 Standards for Adult Homes and Adult Care Revisions to Parts 487 and 488 in regards to Facilities Standards for Enriched Housing the establishment of the Justice Center for Protection of People with Special Needs

HLT-43-15-00003-P ...... 10/27/16 Immediate Need for Personal Care Services To implement 2015 State law changes regarding (PCS) and Consumer Directed Personal Medicaid applicants and recipients with Assistance (CDPA) immediate needs for PCS or CDPA

HLT-44-15-00003-P ...... 11/03/16 Transgender Related Care and Services To amend provisions regarding Medicaid coverage of transition-related transgender care and services

HLT-44-15-00020-P ...... 11/03/16 Statewide Health Information Network for New To establish the Statewide Health Information York (SHIN-NY) Network for NY (SHIN-NY)

HLT-46-15-00006-P ...... 01/10/17 Early Intervention Program To conform existing program regulations to federal regulations and state statute

HLT-47-15-00003-P ...... 11/24/16 Sexually Transmitted Diseases (STDs) Control of Sexually Transmitted Diseases (STDs); Expedited Partner Therapy for Chlamydia Trachomatis Infection

HOMELAND SECURITY AND EMERGENCY SERVICES, DIVISION OF

HES-32-15-00002-EP ...... 08/11/16 Registration of manufacturers, Establish the registration process, fees and distributors,wholesalers, various retailers of reporting requirements related to sparkling sparkling devices devices

HUMAN RIGHTS, DIVISION OF

HRT-44-15-00033-P ...... 11/03/16 Gender Identity Discrimination To clarify how gender identity discrimination may constitute either sex or disability discrimination under the Human Rights Law

80 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

JUDICIAL CONDUCT, STATE COMMISSION ON

JDC-47-15-00006-P ...... 11/24/16 Practice of law before the commission To prohibit the practice of law before the commission, by commission members, their law firms and former commission members

JUSTICE CENTER FOR THE PROTECTION OF PEOPLE WITH SPECIAL NEEDS

JCP-28-15-00008-EP ...... 07/14/16 Protocols for interviewing service recipients To enhance protections for people with special during investigations of abuse or neglect needs during investigations of abuse or neglect

LABOR, DEPARTMENT OF

LAB-21-15-00009-RP ...... 05/26/16 Methods of Payment of Wages This regulation provides clarification and specification as to the permissible methods of payment, including payroll debit cards

LAB-40-15-00015-P ...... 10/06/16 Tipped workers in the hospitality industry To implement changes to the wages for food service workers and service employees in the hospitality industry

LAB-42-15-00003-P ...... 10/20/16 FastFood Minimum Wage To implement changes to the wages for food service workers and service employees in the hospitality industry

LAW, DEPARTMENT OF

LAW-42-15-00015-P ...... 10/20/16 DigitalSubmission Requirements for To streamline the Department of Law's Cooperative Interests in Realty regulations and internal operations while also reducing transaction costs and paper waste

LAW-47-15-00007-EP ...... 11/24/16 Clarification of Protections for Senior and To clarify the Martin Act’s non-purchasing Disabled Tenants During Condominium or tenant protections for eligible senior citizens and Cooperative Ownership Conversions eligible disabled persons

LAW-49-15-00011-P ...... 12/08/16 Disclosure requirements for condominium To clarify a condominium offeror's disclosure offerors renting, rather than selling, unsold obligations in a newly-constructed, vacant, or condominium units non-residential condominium

LIQUOR AUTHORITY, STATE

LQR-34-15-00029-P ...... 08/25/16 Update outdated application procedures and To update application procedures, codify current eliminate archaic physical standards for certain online filing practices and eliminate archaic licenses types restrictions on certain licenses

LONG ISLAND POWER AUTHORITY

*LPA-08-01-00003-P ...... exempt Pole attachments and related matters To approve revisions to the authority's tariff

*LPA-41-02-00005-P ...... exempt Tariff for electric service To revise the tariff for electric service

*LPA-04-06-00007-P ...... exempt Tariff for electric service To adopt provisions of a ratepayer protection plan

*LPA-03-10-00004-P ...... exempt Residential late payment charges To extend the application of late payment charges to residential customers

LPA-07-15-00003-P ...... exempt The rates and charges set forth in LIPA's Tariff To set rates and charges at the lowest level for Electric Service consistent with sound fiscal and operating practices and safe and adequate service

81 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

MENTAL HEALTH, OFFICE OF

OMH-40-15-00010-P ...... 10/06/16 Visitation and Inspection of Facilities Clarification of the term, ‘‘facilities under the jurisdiction of the Office of Mental Health,’’ for purposes of Part 553

OMH-44-15-00002-P ...... 11/03/16 Visitation and Inspection of Facilities To conform existing regulations to statute and enable external entity to perform reviews and inspections

MOTOR VEHICLES, DEPARTMENT OF

MTV-46-15-00003-P ...... 11/17/16 Hearings for persons who persistently evade To hold hearings for persons subject to a the payment of tolls registration suspension due to persistently evading the payment of tolls

NIAGARA FALLS WATER BOARD

*NFW-04-13-00004-EP ...... exempt Adoption of Rates, Fees and Charges To pay for the increased costs necessary to operate, maintain and manage the system, and to achieve covenants with bondholders

*NFW-13-14-00006-EP ...... exempt Adoption of Rates, Fees and Charges To pay for increased costs necessary to operate, maintain and manage the system and to achieve covenants with the bondholders

PARKS, RECREATION AND HISTORIC PRESERVATION, OFFICE OF

PKR-47-15-00001-P ...... 11/24/16 Adding windsurfing, sailboarding and To authorize the regulated activity by the public paddleboarding to the list of activities regulated of windsurfing and stand-up paddleboarding by OPRHP

PEOPLE WITH DEVELOPMENTAL DISABILITIES, OFFICE FOR

PDD-42-15-00002-P ...... 10/20/16 Article 16 Clinic Services and Independent To discontinue off-site Article 16 clinic services Practitioner Services for Individuals with and to add requirements for IPSIDD Intellectual Disabilities (IPSIDD)

PDD-48-15-00003-P ...... 12/01/16 Agency Name Change and Terminology To update the agency name and other Updates terminology in the Title 14 NYCRR Part 600 series

POWER AUTHORITY OF THE STATE OF NEW YORK

*PAS-01-10-00010-P ...... exempt Rates for the sale of power and energy Update ECSB Programs customers' service tariffs to streamline them/include additional required information

PAS-42-15-00004-P ...... exempt Rates for the Sale of Power and Energy To recover the Authority's fixed costs

PAS-42-15-00005-P ...... exempt Rates for the Sale of Power and Energy To align rates and costs

PUBLIC EMPLOYMENT RELATIONS BOARD

PRB-42-15-00014-P ...... 10/20/16 RulesofProceduregoverningmattersbefore To conform procedure under SERA to the 2010 the Public Employment Relations Board and 2013 statutory changes, and harmonize pursuant to Labor Law, art. 20 with PERB rules

82 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION

*PSC-28-97-00032-P ...... exempt General service by Central Hudson Gas & To limit certain special provisions Electric Corporation

*PSC-34-97-00009-P ...... exempt Collection agency fees by Consolidated Edison To pass collection agency fees on to the Company of New York, Inc. customer

*PSC-04-98-00015-P ...... exempt Interconnection service overcharges by Niagara To consider a complaint by Azure Mountain Mohawk Power Corporation Power Co.

*PSC-19-98-00008-P ...... exempt Call forwarding by CPU Industries Inc./MKL To rehear the petition Net,etal.

*PSC-02-99-00006-EP ...... exempt Intralata freeze plan by New York Telephone To approve the plan Company

*PSC-09-99-00012-P ...... exempt Transfer of books and records by Citizens To relocate Ogden Telephone Company's books Utilities Company and records out-of-state

*PSC-15-99-00011-P ...... exempt Electronic tariff by Woodcliff Park Corp. To replace the company's current tariff with an electronic tariff

*PSC-50-99-00009-P ...... exempt Retail access uniform business practices by To approve a joint petition requesting a waiver The Brooklyn Union Gas Company and extension of a requirement set forth in the KeySpan Gas East Corporation d/b/a commission's order Brooklyn Union of Long Island

*PSC-52-99-00006-P ...... exempt Wide area rate center calling To implement number conservation measures

*PSC-12-00-00001-P ...... exempt Winter bundled sales service election date by To revise the date Central Hudson Gas & Electric Corporation

*PSC-14-00-00004-EP ...... exempt NXX code in the 716 NPA by Broadview To assign an NXX code in Buffalo Networks

*PSC-14-00-00026-P ...... exempt Interconnection agreement between New York To review the terms and conditions of the Telephone Company d/b/a Bell Atlantic-New negotiated agreement York and Media Log, Inc.

*PSC-14-00-00027-P ...... exempt Interconnection agreement between New York To review the terms and conditions of the Telephone Company d/b/a Bell Atlantic-New negotiated agreement York and Pilgrim Telephone, Inc.

*PSC-14-00-00029-P ...... exempt Interconnection agreement between New York To review the terms and conditions of the Telephone Company d/b/a Bell Atlantic-New negotiated agreement York and CoreComm New York, Inc.

*PSC-16-00-00012-P ...... exempt Termination of local telecommunications traffic To determine appropriate compensation levels by Hyperion Communications of New York, Inc.

*PSC-21-00-00007-P ...... exempt Initial tariff schedule by Drew Road Association To set forth the rates, charges, rules and regulations

*PSC-31-00-00026-P ...... exempt Water service by Windover Water Works To abandon the water system

*PSC-33-00-00010-P ...... exempt Electric rate and restructuring plan by To evaluate possible modifications Rochester Gas and Electric Corporation

*PSC-36-00-00039-P ...... exempt Steam increase by Consolidated Edison To provide for an annual increase in the first Company of New York, Inc. year of a proposed four-year rate plan

83 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-37-00-00001-EP ...... exempt Interruptible gas customers To ensure customers have an adequate supply of alternative fuel available

*PSC-39-00-00004-P ...... exempt Blockable central office codes by PaeTec To review the commission's requirements for Communications, Inc. assignment of numbering resources

*PSC-44-00-00014-P ...... exempt Recovery of costs through adjustment To permit the recovery of certain costs mechanisms by Consolidated Edison Company of New York, Inc.

*PSC-49-00-00007-P ...... exempt Gas sales and purchases by Corning Natural To determine whether certain gas sales and Gas Corporation purchases were in the public interest and whether customers should bear the resulting costs

*PSC-01-01-00023-P ...... exempt Installation, maintenance and ownership of To update and clarify the provisions service laterals by Rochester Gas and Electric Corporation

*PSC-06-01-00009-P ...... exempt Uniform system of accounts by Rochester Gas To defer an item of expense beyond the end of and Electric Corporation the year in which it was incurred

*PSC-13-01-00001-P ...... exempt Request for accounting authorization by To defer an item of expense beyond the end of Rochester Gas and Electric Corporation the year in which it was incurred

*PSC-13-01-00002-P ...... exempt Request for accounting authorization by To defer an item of expense beyond the end of Rochester Gas and Electric Corporation the year in which it was incurred

*PSC-13-01-00003-P ...... exempt Request for accounting authorization by To defer an item of expense beyond the end of Rochester Gas and Electric Corporation the year in which it was incurred

*PSC-15-01-00012-P ...... exempt Transfer of a controlling leasehold interest by To approve the transfer Huntley Power LLC

*PSC-22-01-00006-P ...... exempt Con Edison's phase 4 plan for retail access by To review the request for rehearing AES Energy, Inc.

*PSC-26-01-00012-P ...... exempt Interconnection of networks between Sprint To review the terms and conditions of the PCS and Verizon New York Inc. negotiated agreement

*PSC-36-01-00010-P ...... exempt Competitive metering by eBidenergy.com To clarify meter ownership rules and requirements

*PSC-44-01-00005-P ...... exempt Annual reconciliation of gas costs by Corning To authorize the company to include certain gas Natural Gas Corporation costs

*PSC-01-02-00007-P ...... exempt Accounting and rate treatment of proceeds by To consider proceeds from sale of nuclear Consolidated Edison Company of New York, generating facilities Inc.

*PSC-05-02-00005-P ...... exempt Uniform system of accounts by Consolidated To defer expenditures incurred in connection Edison Company of New York, Inc. with emergency response services affected by the World Trade Center disaster

*PSC-06-02-00015-P ...... exempt Network reliability performance mechanism by To earn rewards for meeting the targets of the Consolidated Edison Company of New York, network reliability performance mechanism Inc.

*PSC-07-02-00032-P ...... exempt Uniform business practices To consider modification

*PSC-29-02-00014-P ...... exempt Financing by Valley Energy, Inc. To issue a note and allocate costs

84 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-49-02-00021-P ...... exempt Requests for lightened regulation by PSEG To consider the company's request Power Bellport, LLC

*PSC-08-03-00009-P ...... exempt Provision of gas service to World Kitchen To establish terms and conditions Incorporated

*PSC-09-03-00012-P ...... exempt Incremental service line installations by New To revise the current flat rate per foot charged York State Electric & Gas Corporation

*PSC-09-03-00014-P ...... exempt Deferral accounting by Consolidated Edison To defer expense items beyond the end of the Company of New York, Inc. and Orange and year(s) in which they were incurred Rockland Utilities, Inc.

*PSC-11-03-00012-P ...... exempt Economic development plan by New York To consider the plan State Electric & Gas Corporation

*PSC-18-03-00004-P ...... exempt Lightened regulation by East Hampton Power To provide for lightened regulation and grant and Light Corporation (EHPLC) financing approval

*PSC-22-03-00020-P ...... exempt Inter-departmental gas pricing by Consolidated To revise the method used in steam and steam- Edison Company of New York, Inc. electric generating stations

*PSC-32-03-00020-P ...... exempt Issuance of debt and approval of surcharge by To approve necessary financing Rainbow Water Company

*PSC-34-03-00019-P ...... exempt Issuance of securities by KeySpan East To obtain authorization to issue securities Corporation d/b/a KeySpan Energy Delivery Long Island

*PSC-35-03-00009-P ...... exempt Interconnection agreement between Verizon To amend the agreement New York Inc. and MCIMetro Access Transmission Services LLC

*PSC-36-03-00010-P ...... exempt Performance assurance plan by Verizon New To consider changes York

*PSC-39-03-00013-P ...... exempt Complaint by State University of New York To consider the complaint (SUNY) regarding a NYSEG operating agreement

*PSC-40-03-00015-P ...... exempt Receipt of payment of bills by St. Lawrence To revise the process Gas Company

*PSC-41-03-00008-P ...... exempt Lightened regulation by Sterling Power To consider granting lightened regulation Partners, L.P.

*PSC-41-03-00010-P ...... exempt Annual reconciliation of gas expenses and gas To consider filings of various LDCs and cost recoveries municipalities

*PSC-41-03-00011-P ...... exempt Annual reconciliation of gas expenses and gas To consider filings of various LDCs and cost recoveries municipalities

*PSC-42-03-00005-P ...... exempt Interest rate by the Bath Electric, Gas, and To use an alternate interest rate Water Systems

*PSC-43-03-00036-P ...... exempt Merchant function backout credit and transition To continue the credit and account until May 31, balancing account by KeySpan Gas East 2005 Corporation

85 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-43-03-00037-P ...... exempt Merchant function backout credit and transition To continue the credit and account until May 31, balancing account by The Brooklyn Union Gas 2005 Company

*PSC-44-03-00009-P ...... exempt Retail access data between jurisdictional To accommodate changes in retail access utilities market structure or commission mandates

*PSC-47-03-00024-P ...... exempt Lightened regulation and financing approval by To consider the requests Medford Energy LLC

*PSC-02-04-00008-P ...... exempt Delivery rates for Con Edison's customers in To rehear the Nov. 25, 2003 order New York City and Westchester County by the City of New York

*PSC-06-04-00009-P ...... exempt Transfer of ownership interest by SCS Energy To transfer interest in Steinway Creek Electric LLC and AE Investors LLC Generating Company LLC to AE Investors LLC

*PSC-10-04-00005-P ...... exempt Temporary protective order To consider adopting a protective order

*PSC-10-04-00008-P ...... exempt Interconnection agreement between Verizon To amend the agreement New York Inc. and VIC-RMTS-DC, L.L.C. d/b/a Verizon Avenue

*PSC-14-04-00008-P ...... exempt Submetering of natural gas service to industrial To submeter gas service to commercial and commercial customers by Hamburg customers located at the Buffalo Speedway Fairgrounds

*PSC-15-04-00022-P ...... exempt Submetering of electricity by Glenn Gardens To permit submetering at 175 W. 87th St., New Associates, L.P. York, NY

*PSC-21-04-00013-P ...... exempt Verizon performance assurance plan by To clarify the appropriate performance level Metropolitan Telecommunications

*PSC-22-04-00010-P ...... exempt Approval of new types of electricity meters by To permit the use of the PE-1250 electronic Powell Power Electric Company meter

*PSC-22-04-00013-P ...... exempt Major gas rate increase by Consolidated To increase annual gas revenues Edison Company of New York, Inc.

*PSC-22-04-00016-P ...... exempt Master metering of water by South Liberty To waive the requirement for installation of Corporation separate water meters

*PSC-25-04-00012-P ...... exempt Interconnection agreement between Frontier To amend the agreement Communications of Ausable Valley, Inc., et al. and Sprint Communications Company, L.P.

*PSC-27-04-00008-P ...... exempt Interconnection agreement between Verizon To amend the agreement New York Inc. and various Verizon wireless affiliates

*PSC-27-04-00009-P ...... exempt Interconnection agreement between Verizon To amend the agreement New York Inc. and various Verizon wireless affiliates

*PSC-28-04-00006-P ...... exempt Approval of loans by Dunkirk & Fredonia To authorize participation in the parent Telephone Company and Cassadaga corporation's line of credit Telephone Corporation

*PSC-31-04-00023-P ...... exempt Distributed generation service by Consolidated To provide an application form Edison Company of New York, Inc.

86 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-34-04-00031-P ...... exempt Flat rate residential service by Emerald Green To set appropriate level of permanent rates Lake Louise Marie Water Company, Inc.

*PSC-35-04-00017-P ...... exempt Application form for distributed generation by To establish a new supplementary application Orange and Rockland Utilities, Inc. form for customers

*PSC-43-04-00016-P ...... exempt Accounts recievable by Rochester Gas and To include in its tariff provisions for the Electric Corporation purchase of ESCO accounts recievable

*PSC-46-04-00012-P ...... exempt Service application form by Consolidated To revise the form and make housekeeping Edison Company of New York, Inc. changes

*PSC-46-04-00013-P ...... exempt Rules and guidelines governing installation of To establish uniform statewide business metering equipment practices

*PSC-02-05-00006-P ...... exempt Violation of the July 22, 2004 order by To consider imposing remedial actions against Dutchess Estates Water Company, Inc. the company and its owners, officers and directors

*PSC-09-05-00009-P ...... exempt Submetering of natural gas service by Hamlet To consider submetering of natural gas to a on Olde Oyster Bay commercial customer

*PSC-14-05-00006-P ...... exempt Request for deferred accounting authorization To defer expenses beyond the end of the fiscal by Freeport Electric Inc. year

*PSC-18-05-00009-P ...... exempt Marketer Assignment Program by Consolidated To implement the program Edison Company of New York, Inc.

*PSC-20-05-00028-P ...... exempt Delivery point aggregation fee by Allied Frozen To review the calculation of the fee Storage, Inc.

*PSC-25-05-00011-P ...... exempt Metering, balancing and cashout provisions by To establish provisions for gas customers taking Central Hudson Gas & Electric Corporation service under Service Classification Nos. 8, 9 and 11

*PSC-27-05-00018-P ...... exempt Annual reconciliation of gas costs by New York To consider the manner in which the gas cost State Electric & Gas Corporation incentive mechanism has been applied

*PSC-41-05-00013-P ...... exempt Annual reconciliation of gas expenses and gas To consider the filings cost recoveries by local distribution companies and municipalities

*PSC-45-05-00011-P ...... exempt Treatment of lost and unaccounted gas costs To defer certain costs by Corning Natural Gas Corporation

*PSC-46-05-00015-P ...... exempt Sale of real and personal property by the To consider the sale Brooklyn Union Gas Company d/b/a KeySpan Energy Delivery New York and Steel Arrow, LLC

*PSC-47-05-00009-P ...... exempt Transferral of gas supplies by Corning Natural To approve the transfer Gas Corporation

*PSC-50-05-00008-P ...... exempt Long-term debt by Saratoga Glen Hollow To obtain long-term debt Water Supply Corp.

*PSC-04-06-00024-P ...... exempt Transfer of ownership interests by Mirant NY- To approve of the transfer Gen LLC and Orange and Rockland Utilities, Inc.

87 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-06-06-00015-P ...... exempt Gas curtailment policies and procedures To examine the manner and extent to which gas curtailment policies and procedures should be modified and/or established

*PSC-07-06-00009-P ...... exempt Modification of the current Environmental To include an attributes accounting system Disclosure Program

*PSC-22-06-00019-P ...... exempt Hourly pricing by National Grid To assess the impacts

*PSC-22-06-00020-P ...... exempt Hourly pricing by New York State Electric & To assess the impacts Gas Corporation

*PSC-22-06-00021-P ...... exempt Hourly pricing by Rochester Gas & Electric To assess the impacts Corporation

*PSC-22-06-00022-P ...... exempt Hourly pricing by Consolidated Edison To assess the impacts Company of New York, Inc.

*PSC-22-06-00023-P ...... exempt Hourly pricing by Orange and Rockland To assess the impacts Utilities, Inc.

*PSC-24-06-00005-EP ...... exempt Supplemental home energy assistance benefits To extend the deadline to Central Hudson's low- income customers

*PSC-25-06-00017-P ...... exempt Purchased power adjustment by Massena To revise the method of calculating the Electric Department purchased power adjustment and update the factor of adjustment

*PSC-34-06-00009-P ...... exempt Inter-carrier telephone service quality To incorporate appropriate modifications standards and metrics by the Carrier Working Group

*PSC-37-06-00015-P ...... exempt Procedures for estimation of customer bills by To consider estimation procedures Rochester Gas and Electric Corporation

*PSC-37-06-00017-P ...... exempt Procedures for estimation of customer bills by To consider estimation procedures Rochester Gas and Electric Corporation

*PSC-39-06-00018-P ...... exempt Order establishing rate plan by Central Hudson To consider the petitions for rehearing Gas & Electric Corporation and the Consumer Protection Board

*PSC-39-06-00019-P ...... exempt Investigation of Richard M. Osborne by Corning To determine the interests, plans and Natural Gas Corporation commitments that will be in place if he is successful in blocking the merger of Corning Gas and C&T Enterprises

*PSC-39-06-00022-P ...... exempt Uniform business practices and related matters To establish a contest period by U.S. Energy Savings Corporation

*PSC-40-06-00005-P ...... exempt Orion Integral automatic meter reading To permit gas utilities in NYS to use the Badger transmitter by New York State Electric and Meter Incorporated Orion Integral transmitters Gas Corporation

*PSC-42-06-00011-P ...... exempt Submetering of electricity by 225 5th LLC To submeter electricity at 255 Fifth Ave., New York, NY

*PSC-43-06-00014-P ...... exempt Electric delivery services by Strategic Power To determine the proper mechanism for the Management, Inc. rate-recovery of costs

88 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-44-06-00014-P ...... exempt Electric power outages in Northwest Queens To review the terms and conditions of the by Consolidated Edison Company of New agreement York, Inc.

*PSC-45-06-00007-P ...... exempt Alleged failure to provide electricity by Robert To assess validity of allegations and Andrews appropriateness of fines

*PSC-01-07-00031-P ...... exempt Enforcement mechanisms by National Fuel Gas To modify enforcement mechanisms Distribution Corporation

*PSC-04-07-00012-P ...... exempt Petition for rehearing by Orange and Rockland To clarify the order Utilities, Inc.

*PSC-06-07-00015-P ...... exempt Meter reading and billing practices by Central To continue current meter reading and billing Hudson Gas & Electric Corporation practices for electric service

*PSC-06-07-00020-P ...... exempt Meter reading and billing practices by Central To continue current meter reading and billing Hudson Gas & Electric Corporation practices for gas service

*PSC-11-07-00010-P ...... exempt Investigation of the electric power outages by To implement the recommendations in the staff's the Consolidated Edison Company of New investigation York, Inc.

*PSC-11-07-00011-P ...... exempt Storm-related power outages by Consolidated To modify the company's response to power Edison Company of New York, Inc. outages, the timing for any such changes and other related matters

*PSC-17-07-00008-P ...... exempt Interconnection agreement between Verizon To amend the agreement New York Inc. and BridgeCom International, Inc.

*PSC-18-07-00010-P ...... exempt Existing electric generating stations by To repower and upgrade existing electric Independent Power Producers of New York, generating stations owned by Rochester Gas Inc. and Electric Corporation

*PSC-20-07-00016-P ...... exempt Tariff revisions and making rates permanent by To seek rehearing New York State Electric & Gas Corporation

*PSC-21-07-00007-P ...... exempt Natural Gas Supply and Acquisition Plan by To revise the rates, charges, rules and Corning Natural Gas Corporation regulations for gas service

*PSC-22-07-00015-P ...... exempt Demand Side Management Program by To recover incremental program costs and lost Consolidated Edison Company of New York, revenue Inc.

*PSC-23-07-00022-P ...... exempt Supplier, transportation, balancing and To explicitly state in the company's tariff that aggregation service by National Fuel Gas the threshold level of elective upstream Distribution Corporation transmission capacity is a maximum of 112,600 Dth/day of marketer-provided upstream capacity

*PSC-24-07-00012-P ...... exempt Gas Efficiency Program by the City of New To consider rehearing a decision establishing a York Gas Efficiency Program

*PSC-39-07-00017-P ...... exempt Gas bill issuance charge by New York State To create a gas bill issuance charge unbundled Electric & Gas Corporation from delivery rates

*PSC-41-07-00009-P ...... exempt Submetering of electricity rehearing To seek reversal

89 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-42-07-00012-P ...... exempt Energy efficiency program by Orange and To consider any energy efficiency program for Rockland Utilities, Inc. Orange and Rockland Utilities, Inc.'s electric service

*PSC-42-07-00013-P ...... exempt Revenue decoupling by Orange and Rockland To consider a revenue decoupling mechanism Utilities, Inc. for Orange and Rockland Utilities, Inc.

*PSC-45-07-00005-P ...... exempt Customer incentive programs by Orange and To establish a tariff provision Rockland Utilities, Inc.

*PSC-02-08-00006-P ...... exempt Additional central office codes in the 315 area To consider options for making additional codes code region

*PSC-03-08-00006-P ...... exempt Rehearing of the accounting determinations To grant or deny a petition for rehearing of the accounting determinations

*PSC-04-08-00010-P ...... exempt Granting of easement rights on utility property To grant easement rights to Millennium Pipeline by Central Hudson Gas & Electric Corporation Company, L.L.C.

*PSC-04-08-00012-P ...... exempt Marketing practices of energy service To consider modifying the commission's companies by the Consumer Protection Board regulation over marketing practices of energy and New York City Department of Consumer service companies Affairs

*PSC-08-08-00016-P ...... exempt Transfer of ownership by Entergy Nuclear To consider the transfer Fitzpatrick LLC, et al.

*PSC-12-08-00019-P ...... exempt Extend the provisions of the existing electric To consider the request rate plan by Rochester Gas and Electric Corporation

*PSC-12-08-00021-P ...... exempt Extend the provisions of the existing gas rate To consider the request plan by Rochester Gas and Electric Corporation

*PSC-13-08-00011-P ...... exempt Waiver of commission policy and NYSEG tariff To grant or deny Turner's petition by Turner Engineering, PC

*PSC-13-08-00012-P ...... exempt Voltage drops by New York State Electric & To grant or deny the petition Gas Corporation

*PSC-23-08-00008-P ...... exempt Petition requesting rehearing and clarification of To consider whether to grant or deny, in whole the commission's April 25, 2008 order denying or in part, the May 7, 2008 Public Utility Law petition of public utility law project Project (PULP) petition for rehearing and clarification of the commission's April 25, 2008 order denying petition of Public Utility Law Project

*PSC-23-08-00009-P ...... exempt The transfer of certain real property with an To consider the filing for the transfer of certain original cost under $100,000 in the Town of real property in the Town of Throop Throop

*PSC-25-08-00007-P ...... exempt Policies and procedures regarding the selection To establish policies and procedures regarding of regulatory proposals to meet reliability the selection of regulatory proposals to meet needs reliability needs

*PSC-25-08-00008-P ...... exempt Report on Callable Load Opportunities Rider U report assessing callable load opportunities in New York City and Westchester County during the next 10 years

90 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-28-08-00004-P ...... exempt Con Edison's procedure for providing To consider Con Edison's implementation plan customers access to their account information and timetable for providing customers access to their account information

*PSC-31-08-00025-P ...... exempt Recovery of reasonable DRS costs from the To authorize recovery of the DRS costs from the cost mitigation reserve (CMR) CMR

*PSC-32-08-00009-P ...... exempt The ESCO referral program for KEDNY to be To approve, reject or modify, in whole or in part, implemented by October 1, 2008 KEDNY's recommended ESCO referral program

*PSC-33-08-00008-P ...... exempt Noble Allegany's request for lightened To consider Noble Allegany's request for regulation lightened regulation as an electric corporation

*PSC-36-08-00019-P ...... exempt Land Transfer in the Borough of Manhattan, To consider petition for transfer of real property New York to NYPH

*PSC-39-08-00010-P ...... exempt RG&E's economic development plan and tariffs Consideration of the approval of RG&E's economic development plan and tariffs

*PSC-40-08-00010-P ...... exempt Loans from regulated company to its parent To determine if the cash management program resulting in loans to the parent should be approved

*PSC-41-08-00009-P ...... exempt Transfer of control of cable TV franchise To determine if the transfer of control of Margaretville's cable TV subsidiary should be approved

*PSC-43-08-00014-P ...... exempt Annual Reconcilliation of Gas Expenses and The filings of various LDCs and municipalities Gas Cost Recoveries regarding their Annual Reconciliation of Gas Expenses and Gas Cost Recoveries

*PSC-46-08-00008-P ...... exempt Property transfer in the Village of Avon, New To consider a petition for the transfer of street York lighting and attached equipment to the Village of Avon, New York

*PSC-46-08-00010-P ...... exempt A transfer of indirect ownership interests in Consideration of approval of a transfer of nuclear generation facilities indirect ownership interests in nuclear generation facilities

*PSC-46-08-00014-P ...... exempt The attachment of cellular antennae to an To approve, reject or modify the request for electric transmission tower permission to attach cellular antennae to an electric transmission tower

*PSC-48-08-00005-P ...... exempt A National Grid high efficiency gas heating To expand eligibility to customers converting equipment rebate program from oil to natural gas

*PSC-48-08-00008-P ...... exempt Petition for the master metering and To consider the request of Bay City Metering, to submetering of electricity master meter & submeter electricity at 345 E. 81st St., New York, New York

*PSC-48-08-00009-P ...... exempt Petition for the submetering of electricity To consider the request of PCV/ST to submeter electricity at Peter Cooper Village & Stuyvesant Town, New York, New York

*PSC-50-08-00018-P ...... exempt Market Supply Charge A study on the implementation of a revised Market Supply Charge

*PSC-51-08-00006-P ...... exempt Commission's October 27, 2008 Order on To consider a Petition for rehearing of the Future of Retail Access Programs in Case Commission's October 27, 2008 Order in Case 07-M-0458 07-M-0458

91 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-51-08-00007-P ...... exempt Commission's October 27, 2008 Order in To consider Petitions for rehearing of the Cases 98-M-1343, 07-M-1514 and Commission's October 27, 2008 Order in Cases 08-G-0078 98-M-1343, 07-M-1514 and 08-G-0078

*PSC-53-08-00011-P ...... exempt Use of deferred Rural Telephone Bank funds To determine if the purchase of a softswitch by Hancock is an appropriate use of deferred Rural Telephone Bank funds

*PSC-53-08-00012-P ...... exempt Transfer of permanent and temporary Transfer of permanent and temporary easements at 549-555 North Little Tor Road, easements at 549-555 North Little Tor Road, New City, NY New City, NY

*PSC-53-08-00013-P ...... exempt To transfer common stock and ownership To consider transfer of common stock and ownership

*PSC-01-09-00015-P ...... exempt FCC decision to redefine service area of Review and consider FCC proposed redefinition Citizens/Frontier of Citizens/Frontier service area

*PSC-02-09-00010-P ...... exempt Competitive classification of independent local To determine if Chazy & Westport Telephone exchange company, and regulatory relief Corporation more appropriately belongs in appropriate thereto scenario 1 rather than scenario 2

*PSC-05-09-00008-P ...... exempt Revenue allocation, rate design, performance To consider any remaining non-revenue metrics, and other non-revenue requirement requirement issues related to the Company's issues May 9, 2008 tariff filing

*PSC-05-09-00009-P ...... exempt Numerous decisions involving the steam To consider the long term impacts on steam system including cost allocation, energy rates and on public policy of various options efficiency and capital projects concerning the steam system

*PSC-06-09-00007-P ...... exempt Interconnection of the networks between To review the terms and conditions of the Frontier Comm. and WVT Communications for negotiated agreement between Frontier Comm. local exchange service and exchange access and WVT Comm.

*PSC-07-09-00015-P ...... exempt Transfer certain utility assets located in the To consider the request to transfer certain utility Town of Montgomery from plant held for future assets located in the Town of Montgomery to use to non-utility property non-utility assets

*PSC-07-09-00017-P ...... exempt Request for authorization to defer the To allow the company to defer the incremental incremental costs incurred in the restoration costs incurred in the restoration work resulting work resulting from the ice storm from the ice storm

*PSC-07-09-00018-P ...... exempt Whether to permit the submetering of natural To consider the request of Cooper Union, to gas service to an industrial and commercial submeter natural gas at 41 Cooper Square, New customer at Cooper Union, New York, NY York, New York

*PSC-12-09-00010-P ...... exempt Charges for commodity To charge customers for commodity costs

*PSC-12-09-00012-P ...... exempt Charges for commodity To charge customers for commodity costs

*PSC-13-09-00008-P ...... exempt Options for making additional central office To consider options for making additional central codes available in the 718/347 numbering plan office codes available in the 718/347 numbering area plan area

*PSC-14-09-00014-P ...... exempt The regulation of revenue requirements for To determine whether the regulation of revenue municipal utilities by the Public Service requirements for municipal utilities should be Commission modified

*PSC-16-09-00010-P ...... exempt Petition for the submetering of electricity To consider the request of AMPS on behalf of Park Imperial to submeter electricity at 230 W. 56th Street, in New York, New York

92 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-16-09-00020-P ...... exempt Whether SUNY's core accounts should be Whether SUNY's core accounts should be exempt from the mandatory assignment of exempt from the mandatory assignment of local local distribution company (LDC) capacity distribution company (LDC) capacity

*PSC-17-09-00010-P ...... exempt Whether to permit the use of Elster REX2 solid To permit electric utilities in New York State to state electric meter for use in residential and use the Elster REX2 commerical accounts

*PSC-17-09-00011-P ...... exempt Whether Brooklyn Navy Yard Cogeneration Whether Brooklyn Navy Yard Cogeneration Partners, L.P. should be reimbursed by Con Partners, L.P. should be reimbursed by Con Edison for past and future use taxes Edison for past and future use taxes

*PSC-17-09-00012-P ...... exempt Petition for the submetering of gas at To consider the request of Turner Construction, commercial property to submeter natural gas at 550 Short Ave., & 10 South St., Governors Island, NY

*PSC-17-09-00014-P ...... exempt Benefit-cost framework for evaluating AMI To consider a benefit-cost framework for programs prepared by the DPS Staff evaluating AMI programs prepared by the DPS Staff

*PSC-17-09-00015-P ...... exempt The construction of a tower for wireless To approve, reject or modify the petition to build antennas on land owned by National Grid a tower for wireless antennas in the Town of Onondaga

*PSC-18-09-00012-P ...... exempt Petition for rehearing of Order approving the To consider the request of Frank Signore to submetering of electricity rehear petition to submeter electricity at One City Place in White Plains, New York

*PSC-18-09-00013-P ...... exempt Petition for the submetering of electricity To consider the request of Living Opportunities of DePaul to submeter electricity at E. Main St. located in Batavia, New York

*PSC-18-09-00017-P ...... exempt Approval of an arrangement for attachment of To approve, reject or modify the petition for the wireless antennas to the utility's transmission existing wireless antenna attachment to the facilities in the City of Yonkers utility's transmission tower

*PSC-20-09-00016-P ...... exempt The recovery of, and accounting for, costs To consider a filing of the Companies as to the associated with the Companies' advanced recovery of, and accounting for, costs metering infrastructure (AMI) pilots etc associated with it's AMI pilots etc

*PSC-20-09-00017-P ...... exempt The recovery of, and accounting for, costs To consider a filing of CHG&E as to the associated with CHG&E's AMI pilot program recovery of, and accounting for, costs associated with it's AMI pilot program

*PSC-22-09-00011-P ...... exempt Cost allocation for Consolidated Edison's East To determine whether any changes are River Repowering Project warranted in the cost allocation of Consolidated Edison's East River Repowering Project

*PSC-25-09-00005-P ...... exempt Whether to grant, deny, or modify, in whole or Whether to grant, deny, or modify, in whole or in in part, the petition part, the petition

*PSC-25-09-00006-P ...... exempt Electric utility implementation plans for To determine if the proposed web based SIR proposed web based SIR application process systems are adequate and meet requirements and project status database needed for implementation

*PSC-25-09-00007-P ...... exempt Electric rates for Consolidated Edison Consider a Petition for Rehearing filed by Company of New York, Inc Consolidated Edison Company of New York, Inc

*PSC-27-09-00011-P ...... exempt Interconnection of the networks between To review the terms and conditions of the Vernon and tw telecom of new york I.p. for negotiated agreement between Vernon and tw local exchange service and exchange access. telecom of new york I.p.

93 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-27-09-00014-P ...... exempt Billing and payment for energy efficiency To promote energy conservation measures through utility bill

*PSC-27-09-00015-P ...... exempt Interconnection of the networks between To review the terms and conditions of the Oriskany and tw telecom of new york l.p. for negotiated agreement between Oriskany and tw local exchange service and exchange access telecom of new york l.p

*PSC-29-09-00006-P ...... exempt Petition for the submetering of electricity at a To consider the request of Shinda Management residential senior citizen facility Corp. to submeter electricity at 107-37 166th Street, Jamaica, New York

*PSC-29-09-00011-P ...... exempt Consideration of utility compliance filings Consideration of utility compliance filings

*PSC-32-09-00009-P ...... exempt Cost allocation for Consolidated Edison's East To determine whether any changes are River Repowering Project warranted in the cost allocation of Consolidated Edison's East River Repowering Project

*PSC-34-09-00016-P ...... exempt Recommendations made in the Management To consider whether to take action or Audit Final Report recommendations contained in the Management Audit Final Report

*PSC-34-09-00017-P ...... exempt To consider the transfer of control of To allow the Plattsburgh Cablevision, Inc. to Plattsburgh Cablevision, Inc. d/b/a Charter distribute its equity interest in CH Communications to CH Communications, LLC Communications, LLC

*PSC-36-09-00008-P ...... exempt The increase in the non-bypassable charge Considering exemptions from the increase in the implemented by RG&E on June 1, 2009 non-bypassable charge implemented by RG&E on June 1, 2009

*PSC-37-09-00015-P ...... exempt Sale of customer-generated steam to the Con To establish a mechanism for sale of customer- Edison steam system generated steam to the Con Edison steam system

*PSC-37-09-00016-P ...... exempt Applicability of electronic signatures to To determine whether electronic signatures can Deferred Payment Agreements be accepted for Deferred Payment Agreements

*PSC-39-09-00015-P ...... exempt Modifications to the $5 Bill Credit Program Consideration of petition of National Grid to modify the Low Income $5 Bill Credit Program

*PSC-39-09-00018-P ...... exempt The offset of deferral balances with Positive To consider a petition to offset deferral balances Benefit Adjustments with Positive Benefit Adjustments

*PSC-40-09-00013-P ...... exempt Uniform System of Accounts - request for To consider a petition to defer and amortize deferral and amortization of costs costs

*PSC-51-09-00029-P ...... exempt Rules and guidelines for the exchange of retail To revise the uniform Electronic Data access data between jurisdictional utilities and Interchange Standards and business practices eligible ESCOs to incorporate a contest period

*PSC-51-09-00030-P ...... exempt Waiver or modification of Capital Expenditure To allow the companies to expend less funds for condition of merger capital improvement than required by the merger

*PSC-52-09-00006-P ...... exempt ACE's petition for rehearing for an order To consider whether to change the Order regarding generator-specific energy Prescribing Study Methodology deliverability study methodology

*PSC-52-09-00008-P ...... exempt Approval for the New York Independent To finance the renovation and construction of System Operator, Inc. to incur indebtedness the New York Independent System Operator, and borrow up to $50,000,000 Inc.'s power control center facilities

94 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-05-10-00008-P ...... exempt Petition for the submetering of electricity To consider the request of University Residences - Rochester, LLC to submeter electricity at 220 John Street, Henrietta, NY

*PSC-05-10-00015-P ...... exempt Petition for the submetering of electricity To consider the request of 243 West End Avenue Owners Corp. to submeter electricity at 243 West End Avenue, New York, NY

*PSC-06-10-00022-P ...... exempt The Commission's Order of December 17, To reconsider the Commission's Order of 2009 related to redevelopment of Consolidated December 17, 2009 related to redevelopment of Edison's Hudson Avenue generating facility the Hudson Avenue generating facility

*PSC-07-10-00009-P ...... exempt Petition to revise the Uniform Business To consider the RESA petition to allow Practices rescission of a customer request to return to full utility service

*PSC-08-10-00007-P ...... exempt Whether to grant, deny, or modify , in whole or Whether to grant, deny, or modify , in whole or in part, the rehearing petition filed in Case in part, the rehearing petition filed in Case 06-E- 06-E-0847 0847

*PSC-08-10-00009-P ...... exempt Consolidated Edison of New York, Inc. energy To modify approved energy efficiency programs efficiency programs

*PSC-12-10-00015-P ...... exempt Recommendations made by Staff intended to To require that Con Edison implement the Staff enhance the safety of Con Edison's gas recommendations intended to enhance the operations safety of Con Edison's gas operations

*PSC-14-10-00010-P ...... exempt Petition for the submetering of electricity To consider the request of 61 Jane Street Owners Corporation to submeter Electricity at 61 Jane Street, Manhattan, NY

*PSC-16-10-00005-P ...... exempt To consider adopting and expanding mobile Adopt additional mobile stray voltage testing stray voltage testing requirements requirements

*PSC-16-10-00007-P ...... exempt Interconnection of the networks between TDS To review the terms and conditions of the Telecom and PAETEC Communications for negotiated agreement between TDS Telecom local exchange service and exchange access and PAETEC Communications

*PSC-16-10-00015-P ...... exempt Interconnection of the networks between To review the terms and conditions of the Frontier and Choice One Communications for negotiated agreement between Frontier and local exchange service and exchange access Choice One Communications

*PSC-18-10-00009-P ...... exempt Electric utility transmission right-of-way To consider electric utility transmission right-of- management practices way management practices

*PSC-19-10-00022-P ...... exempt Whether National Grid should be permitted to To decide whether to approve National Grid's transfer a parcel of property located at 1 Eddy request to transfer a parcel of vacant property in Street, Fort Edward, New York Fort Edward, New York

*PSC-22-10-00006-P ...... exempt Requirement that Noble demonstrate that its Consider requiring that Noble demonstrate that affiliated electric corporations operating in New its affiliated electric corporations in New York York are providing safe service are providing safe service

*PSC-22-10-00008-P ...... exempt Petition for the submetering of electricity To consider the request of 48-52 Franklin Street to submeter electricity at 50 Franklin Street, New York, New York

*PSC-24-10-00009-P ...... exempt Verizon New York Inc. tariff regulations relating To remove tariff regulations relating to retail to voice messaging service voice messaging service from Verizon New York Inc.'s tariff

95 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-25-10-00012-P ...... exempt Reassignment of the 2-1-1 abbreviated dialing Consideration of petition to reassign the 2-1-1 code abbreviated dialing code

*PSC-25-10-00015-P ...... exempt To allow NYWC to defer and amortize, for Consideration of NYWC's petition to defer and future rate recognition, pension settlement amortize, for future rate recognition, pension payout losses incurred in 2009 payout losses incurred in 2009

*PSC-27-10-00016-P ...... exempt Petition for the submetering of electricity To consider the request of 9271 Group, LLC to submeter electricity at 960 Busti Avenue, Buffalo, New York

*PSC-31-10-00007-P ...... exempt Waiver of the Attachment 23 requirement in To consider the waiver of the requirement that a 2001 Rate Order that NMPC Board of majority of NMPC Board of directors consist of Directors consist of ‘‘outside directors’’ ‘‘outside directors’’

*PSC-34-10-00003-P ...... exempt The modification of Central Hudson Gas & The modification of Central Hudson Gas & Electric Corporation's Enhanced Powerful Electric Corporation's Enhanced Powerful Opportunities Program Opportunities Program

*PSC-34-10-00005-P ...... exempt Approval of a contract for $250,000 in tank To decide whether to approve a contract repairs that may be a financing between the parties that may be a financing of $250,000 for tank repairs

*PSC-34-10-00006-P ...... exempt The modification of Central Hudson Gas & The modification of Central Hudson Gas & Electric Corporation's Enhanced Powerful Electric Corporation's Enhanced Powerful Opportunities Program Opportunities Program

*PSC-36-10-00010-P ...... exempt Central Hudson's procedures, terms and Consideration of Central Hudson's procedures, conditions for an economic development plan terms and conditions for an economic development plan

*PSC-40-10-00014-P ...... exempt Disposition of a state sales tax refund To determine how much of a state sales tax refund should be retained by National Grid

*PSC-40-10-00021-P ...... exempt Whether to permit the submetering of natural To permit the submetering of natural gas service gas service to a commercial customer at to a commercial customer at Quaker Crossing Quaker Crossing Mall Mall

*PSC-41-10-00018-P ...... exempt Amount of hourly interval data provided to Allow Central Hudson to provide less than a Hourly Pricing customers who have not years worth of interval data and charge for installed a phone line to read meter manual meter reading for some customers

*PSC-41-10-00022-P ...... exempt Request for waiver of the individual living unit Request for waiver of the individual living unit metering requirements at 5742 Route 5, metering requirements at 5742 Route 5, Vernon, Vernon, NY NY

*PSC-42-10-00011-P ...... exempt Petition for the submetering of electricity To consider the request of 4858 Group, LLC to submeter electricity at 456 Main Street, Buffalo, New York

*PSC-43-10-00016-P ...... exempt Utility Access to Ducts, Conduit Facilities and To review the complaint from Optical Utility Poles Communications Group

*PSC-44-10-00003-P ...... exempt Third and fourth stage gas rate increase by To consider Corning Natural Gas Corporation's Corning Natural Gas Corporation request for a third and fourth stage gas rate increase

*PSC-51-10-00018-P ...... exempt Commission proceeding concerning three- Investigate the consistency of the tariff phase electric service by all major electric provisions for three-phase electric service for all utilities major electric utilities

96 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-11-11-00003-P ...... exempt The proposed transfer of 55.42 acres of land The proposed transfer of 55.42 acres of land and $1.4 million of revenues derived from the and $1.4 million of revenues derived from the rendition of public service rendition of public service

*PSC-12-11-00008-P ...... exempt To allow NYWC to defer and amortize, for Consideration of NYWC's petition to defer and future rate recognition, pension settlement amortize, for future rate recognition, pension payout losses incurred in 2010 payout losses incurred in 2010

*PSC-13-11-00005-P ...... exempt Exclude the minimum monthly bill component Exclude the minimum monthly bill component from the earnings test calculation from the earnings test calculation

*PSC-13-11-00007-P ...... exempt Budget allocations and use of System Benefits To encourage cost effective gas and electric Charge funds to pay State Cost Recovery Fee energy conservation in the State

*PSC-14-11-00009-P ...... exempt Petition for the submetering of electricity To consider the request of 83-30 118th Street to submeter electricity at 83-30 118th Street, Kew Gardens, New York

*PSC-16-11-00011-P ...... exempt The Energy Efficiency Portfolio Standard To promote gas and electricity energy conservation programs in New York

*PSC-19-11-00007-P ...... exempt Utility price reporting requirements related to Modify the Commission's utility electric the Commission's ‘‘Power to Choose’’ website commodity price reporting requirements related to the ‘‘Power to Choose’’ website

*PSC-20-11-00012-P ...... exempt Petition for the submetering of electricity To consider the request of KMW Group LLC to submeter electricity at 122 West Street, Brooklyn, New York

*PSC-20-11-00013-P ...... exempt Determining the reasonableness of Niagara To determine if the make ready charges of Mohawk Power Corporation d/b/a National Niagara Mohawk Power Corporation d/b/a Grid ‘s make ready charges National Grid are reasonable

*PSC-22-11-00004-P ...... exempt Whether to permit the use of the Sensus To permit gas utilities in New York State to use accWAVE for use in residential gas meter the Sensus accWAVE diaphragm gas meter applications

*PSC-23-11-00018-P ...... exempt NYSERDA's energy efficiency program for low- To promote energy conservation in New York income customers State

*PSC-26-11-00007-P ...... exempt Water rates and charges To approve an increase in annual revenues by about $25,266 or 50%

*PSC-26-11-00009-P ...... exempt Petition for the submetering of electricity at To consider the request of by Hoosick River commercial property Hardwoods, LLC to submeter electricity at 28 Taylor Avenue, in Berlin, New York

*PSC-26-11-00012-P ...... exempt Waiver of generation retirement notice Consideration of waiver of generation retirement requirements notice requirements

*PSC-29-11-00011-P ...... exempt Petition requesting the Commssion reconsider To consider whether to grant or deny, in whole its May 19, 2011 Order and conduct a hearing, or in part, Windstream New York's Petition For and petition to stay said Order. Reconsideration and Rehearing.

*PSC-35-11-00011-P ...... exempt Whether to permit Consolidated Edison a Permit Consolidated Edison to conduct a waiver to commission regulations Part 226.8 inspection program in lieu of testing the accuracy of Category C meters

*PSC-36-11-00006-P ...... exempt To consider expanding mobile stray voltage Adopt additional mobile stray voltage testing testing requirements requirements

97 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-38-11-00002-P ...... exempt Operation and maintenance procedures Adopt modified steam operation and pertaining to steam trap caps maintenance procedures

*PSC-38-11-00003-P ...... exempt Waiver of certain provisions of the electric Consideration of waiver of certain provisions of service tariffs of Con Edison the electric service tariffs of Con Edison

*PSC-40-11-00010-P ...... exempt Participation of regulated local exchange Whether to partially modify its order requiring carriers in the New York Data Exchange, Inc. regulated local exchange carriers' participation (NYDE) NYDE

*PSC-40-11-00012-P ...... exempt Granting of transfer of plant in-service to a To approve transfer and recovery of regulatory asset unamortized plant investment

*PSC-42-11-00018-P ...... exempt Availability of telecommunications services in Providing funding support to help ensure New York State at just and reasonable rates availability of affordable telecommunications service throughout New York

*PSC-43-11-00012-P ...... exempt Transfer of outstanding shares of stock Transfer the issued outstanding shares of stock of The Meadows at Hyde Park Water-Works Corporation to HPWS, LLC

*PSC-47-11-00007-P ...... exempt Remedying miscalculations of delivered gas as Consideration of Con Edison's proposal to between two customer classes address inter-class delivery imbalances resulting from past Company miscalculations

*PSC-48-11-00007-P ...... exempt Transfer of controlling interests in generation Consideration of the transfer of controlling facilities from Dynegy to PSEG interests in electric generation facilities from Dynegy to PSEG

*PSC-48-11-00008-P ...... exempt Petition for the submetering of electricity To consider the request of To Better Days, LLC to submeter electricity at 37 East 4th Street, New York, New York

*PSC-51-11-00010-P ...... exempt The Total Resource Cost (TRC) test, used to Petitioners request that the TRC test and/or its analyze measures in the Energy Efficiency application to measures should be revised Portfolio Standard program

*PSC-52-11-00017-P ...... exempt Reparations and refunds Reparations and refunds

*PSC-01-12-00007-P ...... exempt The New York State Reliability Council's To adopt revisions to various rules and revisions to its rules and measurements measurements of the New York State Reliability Council

*PSC-01-12-00008-P ...... exempt Transfer of real property and easements from Consideration of the transfer of real property NMPNS to NMP3 and easements from NMPNS to NMP3

*PSC-01-12-00009-P ...... exempt Recovery of expenses related to the expansion To determine how and to what extent expenses of Con Edison's ESCO referral program, related to the Expansion of Con Edison's ESCO PowerMove referral program should be recovered

*PSC-11-12-00002-P ...... exempt Whether to grant, deny or modify, in whole or Whether to grant, deny or modify, in whole or part, Hegeman's petition for a waiver of part, Hegeman's petition for a waiver of Commission policy and Con Edison tariff Commission policy and Con Edison tariff

*PSC-11-12-00005-P ...... exempt Transfer of land and water supply assets Transfer the land and associated water supply assets of Groman Shores, LLC to Robert Groman

*PSC-13-12-00005-P ...... exempt Authorization to transfer certain real property To decide whether to approve the transfer of certain real property

98 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-17-12-00007-P ...... exempt Whether a proposed agreement for the Whether the Commission should issue an order provision of water service by Saratoga Water approving the proposed provision of water Services, Inc. is in the public interest service

*PSC-17-12-00008-P ...... exempt Whether a proposed agreement for the Whether the Commission should issue an order provision of water service by Saratoga Water approving the proposed provision of water Services, Inc. is in the public interest service

*PSC-17-12-00009-P ...... exempt Whether a proposed agreement for the Whether the Commission should issue an order provision of water service by Saratoga Water approving the proposed provision of water Services, Inc. is in the public interest service

*PSC-19-12-00019-P ...... exempt EEPS programs administered by New York To modify the C&I sector by combining multiple State Electric & Gas Corporation and approved C&I programs into a single C&I Rochester Gas and Electric Corporation program for each PA

*PSC-19-12-00022-P ...... exempt Approval of a combined heat and power Modify NYSERDA's EEPS programs budget and performance program funding plan targets to fund the CHP program administered by NYSERDA

*PSC-19-12-00023-P ...... exempt Petition for approval pursuant to Section 70 for To consider whether to grant, deny or modify, in the sale of goods with an original cost of less whole or in part, the petition filed by Orange and than $100,000 Rockland Utilities, Inc.

*PSC-21-12-00006-P ...... exempt Tariff filing requirements and refunds To determine if certain agreements should be filed pursuant to the Public Service Law and if refunds are warranted

*PSC-21-12-00011-P ...... exempt Whether to grant, deny or modify, in whole or Whether to grant, deny or modify, in whole or part, the petition for waiver of tariff Rules 8.6 part, the petition for waiver of tariff Rules 8.6 and 47 and 47

*PSC-23-12-00005-P ...... exempt EEPS multifamily programs administered by To redesign the multifamily electric and gas Consolidated Edison Company of New York, programs and modify the budgets and targets Inc.

*PSC-23-12-00007-P ...... exempt The approval of a financing upon a transfer to To consider the approval of a financing upon a Alliance of upstream ownership interests in a transfer to Alliance of upstream ownership generation facility interests in a generation facility

*PSC-23-12-00009-P ...... exempt Over earnings sharing between rate payers To establish an Earnings Sharing Mechanism to and shareholders be applied following the conclusion of Corning's rate plan

*PSC-27-12-00012-P ...... exempt Implementation of recommendations made in a To consider implementation of recommendations Management Audit Report made in a Management Audit Report

*PSC-28-12-00013-P ...... exempt Exemption of reliability reporting statistics for Consideration of Orange and Rockland Utilities the purpose of the 2012 Reliability request for exemption of the 2012 reliability Performance Mechanism reporting statistics

*PSC-29-12-00019-P ...... exempt Waiver of 16 NYCRR 894.1 through 894.4 To allow the Town of Hamden to waive certain preliminary franchising procedures to expedite the franchising process.

*PSC-30-12-00010-P ...... exempt Waiver of 16 NYCRR 894.1 through 894.4 To allow the Town of Andes to waive certain preliminary franchising procedures to expedite the franchising process

*PSC-33-12-00009-P ...... exempt Telecommunications companies ability to Consideration of Tech Valley's ability to attach attach to utility company poles to Central Hudson poles

99 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-35-12-00014-P ...... exempt To implement an abandonment of White To approve the implementation of abandonment Knight's water system of White Knight's water system

*PSC-37-12-00009-P ...... exempt Proposed modification by Con Edison of its Proposed modification by Con Edison of its procedures to calculate estimated bills to its procedures to calculate estimated bills to its customers customers

*PSC-42-12-00007-P ...... exempt Petition for the submetering of electricity To consider the request of 215 West 91st Street Corp. to submeter electricity at 215 West 91st Street, New York, New York

*PSC-42-12-00009-P ...... exempt Regulation of Gipsy Trail Club, Inc.'s long-term To exempt Gipsy Trail Club, Inc. from financing agreements Commission regulation of its financing agreements

*PSC-45-12-00008-P ...... exempt Whether to grant, deny or modify, in whole or Whether to grant, deny or modify, in whole or part, ESHG's petition for a waiver of part, ESHG's petition for a waiver of Commission Commission policy and RG&E tariff policy and RG&E tariff

*PSC-45-12-00010-P ...... exempt Whether to grant, deny or modify, in whole or Whether to grant, deny or modify, in whole or in in part the petition of Con Edison to grant part the petition of Con Edison to grant easements to Millwood Fire District easements to Millwood Fire District

*PSC-50-12-00003-P ...... exempt Affiliate standards for Corning Natural Gas To resolve issues raised by Corning Natural Gas Corporation Corporation in its petition for rehearing

*PSC-04-13-00006-P ...... exempt Expansion of mandatory day ahead hourly To consider the expansion of mandatory day pricing for customers of Orange and Rockland ahead hourly pricing for customers with Utilities with demands above 100 kW demands above 100 kW

*PSC-04-13-00007-P ...... exempt Authorization to transfer certain real property. To decide whether to approve the transfer of certain real property.

*PSC-06-13-00008-P ...... exempt Verizon New York Inc.'s retail service quality To investigate Verizon New York Inc.'s retail service quality

*PSC-08-13-00012-P ...... exempt Filing requirements for certain Article VII To ensure that applications for certain electric electric facilities transmission facilities contain pertinent information

*PSC-08-13-00014-P ...... exempt Uniform System of Accounts - Request for To allow the company to defer an item of Accounting Authorization expense or capital beyond the end of the year in which it was incurred

*PSC-12-13-00007-P ...... exempt Protecting company water mains To allow the company to require certain customers to make changes to the electrical grounding system at their homes

*PSC-13-13-00008-P ...... exempt The potential waiver of 16 NYCRR 255.9221(d) To determine whether a waiver of the timely completion of integrity assessments for certain completion of certain gas transmission line gas transmission lines. integrity assessments should be granted.

*PSC-14-13-00005-P ...... exempt Recovery of incremental expense. To consider petition for recovery of incremental expense.

*PSC-17-13-00008-P ...... exempt Provision of historical utility pricing information Provision of historical utility pricing information for comparison purposes for residential ESCO for comparison purposes for residential ESCO customers customers

*PSC-17-13-00010-P ...... exempt Provision of historical pricing information for Provision of historical pricing information for comparison purposes for residential ESCO comparison purposes for residential ESCO customers customers

100 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-18-13-00007-P ...... exempt Whether Demand Energy Networks energy Whether Demand Energy Networks energy storage systems should be designated storage systems should be designated technologies for standby rate eligibility technologies for standby rate eligibility purposes purposes

*PSC-21-13-00003-P ...... exempt To consider policies that may impact consumer To consider and further develop policies that acceptance and use of electric vehicles may impact consumer acceptance and use of electric vehicles

*PSC-21-13-00005-P ...... exempt To implement an abandonment of Windover's To approve the implementation of abandonment water system of Windover's water system

*PSC-21-13-00008-P ...... exempt Rates of National Fuel Gas Distribution To make the rates of National Fuel Gas Corporation Distribution Corporation temporary, subject to refund, if they are found to be excessive

*PSC-21-13-00009-P ...... exempt Reporting requirements for natural gas local To help ensure efficient and economic distribution companies expansion of the natural gas system as appropriate

*PSC-22-13-00009-P ...... exempt On remand from New York State court On remand, to determine the recovery of certain litigation, determine the recovery of certain deferral amounts owed NFG from ratepayers deferred amounts owed NFG by ratepayers

*PSC-23-13-00005-P ...... exempt Waiver of partial payment, directory database Equalize regulatory treatment based on level of distribution, service quality reporting, and competition and practical considerations service termination regulations

*PSC-24-13-00009-P ...... exempt Repowering options for the Cayuga generating To establish whether utility plans should include station located in Lansing, New York, and repowering options for the Cayuga generating alternatives station, or other alternatives

*PSC-24-13-00010-P ...... exempt Repowering options for the Dunkirk generating To establish whether utility plans should include station located in Dunkirk, New York, and repowering options for the Dunkirk generating alternatives station, or other alternatives

*PSC-25-13-00008-P ...... exempt To deny, grant or modify, in whole or in part, To deny, grant or modify, in whole or in part, Central Hudson's rehearing request. Central Hudson's rehearing request.

*PSC-25-13-00009-P ...... exempt Provision by utilities of natural gas main and To help ensure efficient and economic service lines. expansion of the natural gas system as appropriate.

*PSC-25-13-00011-P ...... exempt Waiver of certain Commission requirements To waive a utility's right to provide information to related to provision of customer information to credit reporting agencies related to customers' credit reporting agencies. payment histories.

*PSC-25-13-00012-P ...... exempt To deny, grant or modify, in whole or in part, To deny, grant or modify, in whole or in part, Central Hudson's rehearing request. Central Hudson's rehearing request.

*PSC-27-13-00014-P ...... exempt Columbia Gas Transmission Corporation Cost For approval for temporary waiver of tariff Refund provisions regarding its Columbia Gas Transmission Corporation cost refund.

*PSC-28-13-00014-P ...... exempt Provision for the recovery and allocation of To consider the recovery and allocation of costs costs of transmission projects that reduce of transmission projects that reduce congestion congestion on certain interfaces on certain interfaces

*PSC-28-13-00016-P ...... exempt The request of NGT for lightened regulation as To consider whether to approve, reject, or a gas corporation. modify the request of Niagara gas transport of Lockport, NY LLC.

101 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-28-13-00017-P ...... exempt The request by TE for waiver of regulations Consider the request by TE for waiver of requiring that natural gas be odorized in certain regulations that gas be odorized in certain lines gathering line segments

*PSC-32-13-00009-P ...... exempt To consider the definition of ‘‘misleading or To consider the definition of ‘‘misleading or deceptive conduct’’ in the Commission's deceptive conduct’’ in the Commission's Uniform Uniform Business Practices Business Practices

*PSC-32-13-00010-P ...... exempt Permission to write off and eliminate record To allow write off and eliminate record keeping keeping for regulatory reserves for Pensions of Pension and Other Post Retirement Benefits and Other Post Retirement Benefits Reserves

*PSC-32-13-00012-P ...... exempt To consider whether NYSEG should be To consider whether NYSEG should be required required to undertake actions to protect its to undertake actions to protect its name and to name and to minimize customer confusion minimize customer confusion

*PSC-33-13-00027-P ...... exempt Waive underground facility requirements for Determine whether Chapin Lumberland, LLC new construction in residential subdivisions to subdivision will be allowed overhead electric allow for overhead electric lines. distribution and service lines.

*PSC-33-13-00029-P ...... exempt Deferral of incremental costs associated with To consider a petition by Con Edison to defer the restoration of steam service following certain incremental steam system restoration Superstorm Sandy. costs relating to Superstorm Sandy.

*PSC-34-13-00004-P ...... exempt Escrow account and surcharge to fund To approve the establishment of an escrow extraordinary repairs account and surcharge

*PSC-37-13-00007-P ...... exempt Dissolution of Garrow Water Works Company, To allow for the dissolution of Garrow Water Inc.. Works Company, Inc.

*PSC-39-13-00010-P ...... exempt NY-Sun initiative within the Customer-Sited To increase the statewide adoption of customer Tier of the RPS Program. sited photovoltaic solar generation through the NY-Sun Initiative.

*PSC-42-13-00013-P ...... exempt Failure to Provide Escrow Information The closure of the Escrow Account

*PSC-42-13-00015-P ...... exempt Failure to Provide Escrow Information The closure of the Escrow Account

*PSC-43-13-00015-P ...... exempt Petition for submetering of electricity To consider the request of 2701 Kingsbridge Terrace L.P. to submeter electricity at 2701 Kingsbridge Terrace, Bronx, N.Y.

*PSC-45-13-00021-P ...... exempt Investigation into effect of bifurcation of gas To consider a Petition for an investigation into and electric utility service on Long Island. effect of bifurcation of gas and electric utility service on Long Island.

*PSC-45-13-00022-P ...... exempt Waiver of PSC regulations, 16 NYCRR section To consider a waiver of certain regulations 88.4(a)(4) relating to the content of an application for transmission line siting

*PSC-45-13-00023-P ...... exempt Waiver of PSC regulations, 16 NYCRR section To consider a waiver of certain regulations 88.4(a)(4). relating to the content of an application for transmission line siting

*PSC-45-13-00024-P ...... exempt Waiver of PSC regulations, 16 NYCRR section To consider a waiver of certain regulations 88.4(a)(4); waiver of filing deadlines. relating to the content of an application for transmission line siting

*PSC-45-13-00025-P ...... exempt Waiver of PSC regulations, 16 NYCRR section To consider a waiver of certain regulations 88.4(a)(4). relating to the content of an application for transmission line siting

102 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-47-13-00009-P ...... exempt Petition for submetering of electricity. To consider the request of Hegeman Avenue Housing L.P. to submeter electricity at 39 Hegeman Avenue, Brooklyn, N.Y.

*PSC-47-13-00012-P ...... exempt Conditioning,restricting or prohibiting the Consideration of conditioning,restricting or purchase of services by NYSEG and RG&E prohibiting the purchase of services by NYSEG from certain affiliates. and RG&E from certain affiliates.

*PSC-49-13-00008-P ...... exempt Authorization to transfer all of Crystal Water To allow Crystal Water Supply Company, Inc to Supply Company, Inc. stocks to Essel Infra transfer all of its issued and outstanding stocks West Inc. to Essel Infra West Inc.

*PSC-51-13-00009-P ...... exempt Consolidated Edison proposing to use data To ensure there is a reasonable basis for data from a test period ending September 30, 2013 submitted in support of a request for a change to support its next rate filing. in rates.

*PSC-51-13-00010-P ...... exempt Consolidated Edison proposing to use data To ensure there is a reasonable basis for data from a test period ending September 30, 2013 submitted in support of a request for a change to support its next rate filing. in rates.

*PSC-51-13-00011-P ...... exempt Consolidated Edison proposing to use data To ensure there is a reasonable basis for data from a test period ending September 30, 2013 submitted in support of a request for a change to support its next rate filing. in rates.

*PSC-52-13-00012-P ...... exempt The development of reliability contingency To address the petition for rehearing and plan(s) to address the potential retirement of reconsideration/motion for clarification of the Indian Point Energy Center (IPEC). IPEC reliability contingency plan(s).

*PSC-52-13-00015-P ...... exempt To enter into a loan agreement with the banks To consider allowing Knolls Water Company to for up to an amount of $94,000. enter into a long-term loan agreement.

*PSC-01-14-00017-P ...... exempt Residential Time-of-Use Rates To establish residential optional time of use delivery and commodity rates

*PSC-03-14-00009-P ...... exempt disposition of tax refunds and other related to determine the disposition of tax refunds and matters other related matters

*PSC-04-14-00005-P ...... exempt National Fuel Gas Corporation's Conservation To modify National Fuel Gas Corporation's Non- Incentive Programs. Residential Conservation Incentive Program.

*PSC-05-14-00010-P ...... exempt The New York State Reliability Council's To adopt revisions to various rules and revisions to its rules and measurements measurements of the New York State Reliability Council

*PSC-07-14-00008-P ...... exempt Petition for submetering of electricity To consider the request of Greater Centennial Homes HDFC, Inc. to submeter electricity at 102, 103 and 106 W 5th Street, et al.

*PSC-07-14-00012-P ...... exempt Water rates and charges Implementation of Long-Term Water Supply Surcharge to recover costs associated with the Haverstraw Water Supply Project

*PSC-08-14-00015-P ...... exempt Verizon New York Inc.'s service quality and To improve Verizon New York Inc.'s service Customer Trouble Report Rate (CTRR) levels quality andthe Customer Trouble Report Rate at certain central office entities levels at certain central office entities

*PSC-10-14-00006-P ...... exempt Actions to facilitate the availability of ESCO To facilitate ESCO value-added offerings and to value-added offerings, ESCO eligibility and make changes to ESCO eligibility and to ensure ESCO compliance ESCO compliance

103 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-11-14-00003-P ...... exempt Provision for the recovery and allocation of To consider the recovery and allocation of costs costs of transmission projects that reduce of transmission projects that reduce congestion congestion on certain interfaces on certain interfaces

*PSC-16-14-00014-P ...... exempt Whether to order NYSEG to provide gas To order gas service to customers in the Town service to customers when an expanded CPCN of Plattsburgh after approval of a town wide is approved and impose PSL 25-a penalties. CPCN and to impose penalties.

*PSC-16-14-00015-P ...... exempt Whether Central Hudson should be permitted Consideration of the petition by Central Hudson to defer obligations of the Order issued on to defer reporting obligations of the October 18, October 18, 2013 in Case 13-G-0336. 2013 Order in Case 13-G-0336

*PSC-16-14-00016-P ...... exempt Waiver of Commission regulations governing Consider United Water New York Inc.'s proposal termination of service. to expand termination of service provisions.

*PSC-17-14-00003-P ...... exempt Con Edison's Report on its 2013 performance Con Edison's Report on its 2013 performance under the Electric Service Reliability under the Electric Service Reliability Performance Mechanism Performance Mechanism

*PSC-17-14-00004-P ...... exempt To consider certain portions of petitions for To consider certain portions of petitions for rehearing, reconsideration and/or clarification rehearing, reconsideration and/or clarification

*PSC-17-14-00007-P ...... exempt To consider petitions for rehearing, To consider petitions for rehearing, reconsideration and/or clarification reconsideration and/or clarification

*PSC-17-14-00008-P ...... exempt To consider certain portions of petitions for To consider certain portions of petitions for rehearing, reconsideration and/or clarification rehearing, reconsideration and/or clarification

*PSC-19-14-00014-P ...... exempt Market Supply Charge To make tariff revisions to the Market Supply Charge for capacity related costs

*PSC-19-14-00015-P ...... exempt Whether to permit the use of the Sensus To permit gas utilities in New York State to use accuWAVE for use in residential and the Sensus accuWAVE 415TC gas meter commercial gas meter applications

*PSC-19-14-00018-P ...... exempt Uniform System of Accounts, deferral of an Authorization of a deferral for an expense item expense item beyond the end of the year in which it was incurred

*PSC-22-14-00013-P ...... exempt Petition to transfer and merge systems, To consider the Comcast and Time Warner franchises and assets. Cable merger and transfer of systems, franchises and assets.

*PSC-23-14-00010-P ...... exempt Whether to permit the use of the GE Dresser To permit gas utilities in New York State to use Series B3-HPC 11M-1480 rotary gas met for the GE Dresser Series B3-HPC 11M-1480 use in industrial gas meter applications rotary gas meter

*PSC-23-14-00014-P ...... exempt Waiver of the negative revenue adjustment Consideration of KEDLI's waiver request associated with KEDLI's 2013 Customer pertaining to its 2013 performance under its Satisfaction Performance Metric Customer Satisfaction Metric

*PSC-24-14-00004-P ...... exempt Approval of asset transfer. To allow or disallow transfer of assets from Heritage Hills Water Works Corp. to Community Utilities of New York, Inc.

*PSC-24-14-00005-P ...... exempt To examine LDC's performance and To improve gas safety performance. performance measures.

*PSC-25-14-00015-P ...... exempt Surcharges related to the System Benefits To reduce the public benefit surcharge Charge, Energy Efficiency Portfolio Standard, applicable to large industrial, commercial and Retail Renewable Portfolio Standard institutional energy consumers

104 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-26-14-00010-P ...... exempt Petitioner requests an order authorizing its To enable continued operation of a 21 MW participation in the next Main Tier solicitation biomass fueled electric generating facility in offered under the RPS Program. Chateaugay, New York.

*PSC-26-14-00013-P ...... exempt Waiver of RG&E's tariffed definition of To consider waiver of RG&E's tariffed definition emergency generator. of emergency generator.

*PSC-26-14-00017-P ...... exempt Existing ratemaking and rate design practices To use the Commission's ratemaking authority will be revised with a focus on outcomes and to foster a DER-intensive system. incentives.

*PSC-26-14-00020-P ...... exempt New electric utility backup service tariffs and To encourage development of microgrids that standards for interconnection may be adopted. enhance the efficiency, safety, reliability and resiliency of the electric grid.

*PSC-26-14-00021-P ...... exempt Consumer protections, standards and To balance the need for the information protocols pertaining to access to customer necessary to support a robust market with data may be established. customer privacy concerns.

*PSC-28-14-00014-P ...... exempt Petition to transfer systems, franchises and To consider the Comcast and Charter transfer assets. of systems, franchise and assets.

*PSC-30-14-00023-P ...... exempt Whether to permit the use of the Sensus Pursuant to 16 NYCRR Part 500.3 , it is iPERL Fire Flow Meter. necessary to permit the use of the Sensus iPERL Fire Flow Meter.

*PSC-30-14-00025-P ...... exempt Allocation of uncommitted Technology and To consider allocation of uncommitted Market Development Funds to the Combined Technology & Market Development Funds to the Heat & Power Performance Program. Combined Heat & Power Performance Program.

*PSC-30-14-00026-P ...... exempt Petition for a waiver to master meter electricity. Considering the request of Renaissance Corporation of to master meter electricity at 100 Union Drive,Albany, NY.

*PSC-31-14-00004-P ...... exempt To transfer 100% of the issued and To transfer 100% of the issued and outstanding outstanding stock from Vincent Cross to stock from Vincent Cross to Bonnie and Michael Bonnie and Michael Cross Cross

*PSC-32-14-00009-P ...... exempt Refueling options for the Dunkirk generating To address the joint petition for rehearing of the station located in Dunkirk, New York, and Commission's Order related to refueling the alternatives Dunkirk generating station

*PSC-32-14-00012-P ...... exempt Whether to grant or deny, in whole or in part, To consider the Connect New York Coalition's the Connect New York Coalition's petition petition seeking a formal investigation and hearings

*PSC-34-14-00009-P ...... exempt Whether to approve the Quadlogic S10N Approval of the Quadlogic S10N Smart Meter residential submeter. for use in residential electric submetering is required by 16 NYCRR Parts 93 and 96.

*PSC-35-14-00004-P ...... exempt Regulation of a proposed electricity generation To consider regulation of a proposed electricity facility located in the Town of Brookhaven, NY generation facility located in the Town of Brookhaven, NY

*PSC-35-14-00005-P ...... exempt Whether to permit the use of the Sensus Pursuant to 16 NYCRR Parts 92 and 93, iConA electric meter Commission approval is necessary to permit the use of the Sensus iConA electric meter

*PSC-36-14-00009-P ...... exempt Modification to the Commission's Electric To consider revisions to the Commission's Safety Standards. Electric Safety Standards.

105 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-36-14-00010-P ...... exempt The procurement of Main Tier renewable To ensure the development of large-scale resources will become the responsibility of the remnewables in New York State to promote fuel State's electric utilities. diversity and reduce carbon emissions.

*PSC-36-14-00011-P ...... exempt To defer pension settlement losses associated To resolve the ratemaking of the pension with retirements in the year ended March 31, settlement loss. 2014.

*PSC-38-14-00003-P ...... exempt Whether to approve, reject or modify, in whole Whether to approve, reject or modify, in whole or in part a time-sensitive rate pilot program. or in part a time-sensitive rate pilot program.

*PSC-38-14-00004-P ...... exempt The study and petition of Con Edison regarding The study and petition of Con Edison regarding use, accounting and ratemaking treatment for use, accounting and ratemaking treatment for 11-23 and 2-28 Hudson Ave. Brooklyn. 11-23 and 2-28 Hudson Ave. Brooklyn.

*PSC-38-14-00005-P ...... exempt Action on the report and petition of Con Edison Action on the report and petition of Con Edison regarding the Storm Hardening and Resiliency regarding the Storm Hardening and Resiliency Collaborative, Phase 2. Collaborative, Phase 2.

*PSC-38-14-00007-P ...... exempt Whether to expand Con Edison's low income Whether to expand Con Edison's low income program to include Medicaid recipients. program to include Medicaid recipients.

*PSC-38-14-00008-P ...... exempt The study and petition of Con Edison regarding The study and petition of Con Edison regarding use, accounting and ratemaking treatment for use, accounting and ratemaking treatment for 11-23 and 2-28 Hudson Ave. Brooklyn. 11-23 and 2-28 Hudson Ave. Brooklyn.

*PSC-38-14-00010-P ...... exempt Inter-carrier telephone service quality standard To review recommendations from the Carrier and metrics and administrative changes. Working Group and incorporate appropriate modifications to the existing Guidelines.

*PSC-38-14-00012-P ...... exempt Action on the report and petition of Con Edison Action on the report and petition of Con Edison regarding the Storm Hardening and Resiliency regarding the Storm Hardening and Resiliency Collaborative, Phase 2. Collaborative, Phase 2.

*PSC-38-14-00018-P ...... exempt New electric utility demand response tariffs To develop mature DER markets by enabling the may be adopted. development and use of DR as an economic system resource.

*PSC-39-14-00020-P ...... exempt Whether to permit the use of the Mueller Pursuant to 16 NYCRR section 500.3, whether Systems 400 Series and 500 Series of water to permit the use of the Mueller Systems 400, meters and 500 Series of water meters

*PSC-40-14-00008-P ...... exempt To consider granting authorization for Buy To consider granting authorization for Buy Energy Direct to resume marketing to Energy Direct to resume marketing to residential residential customers. customers.

*PSC-40-14-00009-P ...... exempt Whether to permit the use of the Itron Open Pursuant to 16 NYCRR Parts 93, is necessary Way Centron Meter with Hardware 3.1 for to permit the use of the Itron Open Way Centron AMR and AMI functionality. Meter with Hardware 3.1.

*PSC-40-14-00011-P ...... exempt Late Payment Charge. To modify Section 7.6 - Late Payment Charge to designate a specific time for when a late payment charge is due.

*PSC-40-14-00013-P ...... exempt Regulation of a proposed natural gas pipeline To consider regulation of a proposed natural gas and related facilities located in the Town of pipeline and related facilities located in the Town Ticonderoga, NY. of Ticonderoga, NY.

*PSC-40-14-00014-P ...... exempt Waiver of 16 NYCRR Sections 894.1 through To allow the Town of Goshen, NY, to waive 894.4(b)(2) certain preliminary franchising procedures to expedite the franchising process.

106 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION *PSC-40-14-00015-P ...... exempt Late Payment Charge. To modify Section 6.6 - Late Payment Charge to designate a specific time for when a late payment charge is due.

*PSC-41-14-00009-P ...... exempt Establishment of a Clean Energy Fund and Consideration of proposal by NYSERDA for the related actions establishment of a Clean Energy Fund and related actions

*PSC-41-14-00011-P ...... exempt Establishment of annual collections caps and Consideration of proposal by NYSERDA for the collection and spending mechanisms as establishment of annual collections caps and described in the Clean Energy Fund Proposal collection and spending mechanisms

*PSC-41-14-00012-P ...... exempt Funding and management of the NY-Sun Consideration of proposal by NYSERDA for the program as described in the Clean Energy funding and management of the NY-Sun Fund Proposal program

*PSC-41-14-00013-P ...... exempt Funding and management of the New York Consideration of proposal by NYSERDA for the Green Bank as described in the Clean Energy funding and management of the New York Fund Proposal and NY Green Bank Petition Green Bank

*PSC-41-14-00014-P ...... exempt Funding and management of a Market Consideration of proposal by NYSERDA for the Development program as described in the funding and management of a Market Clean Energy Fund Proposal Development program

*PSC-41-14-00015-P ...... exempt Funding and management of a Technology and Consideration of proposal by NYSERDA for the Business Innovation program as described in funding and management of a Technology and the Clean Energy Fund Proposal Business Innovation program

*PSC-42-14-00003-P ...... exempt Annual Reconciliation of Gas Expenses and The filings of various LDCs and municipalities Gas Cost Recoveries regarding their Annual Reconciliation of Gas Expenses and Gas Cost Recoveries

*PSC-42-14-00004-P ...... exempt Winter Bundled Sales Service Option To modify SC-11 to remove language relating to fixed storage charges in the determination of the Winter Bundled Sales charge

*PSC-45-14-00003-P ...... exempt Notice of Intent to Submeter electricity To consider the request of Bedford-Stuyvesant South One LLC to submeter electricity at 27 Albany Avenue, Brooklyn, NY

*PSC-48-14-00014-P ...... exempt Considering the recommendations contained in To consider the recommendations contained in Staff' s electric outage investigation report for Staff's electric outage investigation report for MNRR, New Haven Line. MNRR, New Haven Line.

PSC-51-14-00006-P ...... exempt The Northeast Power Coordinating Council, To adopt revisions to various rules and Inc's A-Criteria documents and Criteria measurements of the Northeast Power Coordinating Council, Inc.

PSC-52-14-00019-P ...... exempt Petition for a waiver to master meter electricity. Considering the request of 614 South Crouse Avenue, LLC to master meter electricity at 614 South Crouse Avenue, Syracuse, NY..

PSC-52-14-00026-P ...... exempt Community Choice Aggregation. To consider action related to Community Choice Aggregation.

PSC-01-15-00014-P ...... exempt State Universal Service Fund Disbursements To consider Edwards Telephone Company's request for State Universal Service Fund disbursements

PSC-01-15-00017-P ...... exempt Reimbursement of costs for construction under To determine proper reimbursement for costs 16 NYCRR 230 related to trenching and construction

107 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-03-15-00002-P ...... exempt Waiver of tariff provisions related to SC 14 To determine whether a waiver is warranted Non-Core Transportation Services for Electric Generation

PSC-03-15-00003-P ...... exempt To allow residential customers to opt out of To allow residential customers to opt out of AMR metering for gas and make other tariff AMR metering for gas and make other tariff changes related to gas metering changes related to gas metering

PSC-03-15-00004-P ...... exempt To allow residential customers a one time To allow residential customers a one time election to opt out of AMR metering and make election to opt out of AMR metering and make other tariff changes related to metering other changes related to metering

PSC-04-15-00008-P ...... exempt Re-billing SC No. 2 customers from March To determine whether re-billing SC No. 2 2008 through March 2014. customers by the Companies' proposed methodology customers is appropriate.

PSC-04-15-00010-P ...... exempt To modify the retail access program under SC To modify the retail access program to No. 19 - Seller Transportation Aggregation implement Tier 2A – Storage Capacity Release Service. and make other tariff changes.

PSC-04-15-00011-P ...... exempt To modify the retail access program under SC To modify the retail access program to No. 8 - Seller Services. implement Tier 2A - Storage Capacity Release and make other tariff changes.

PSC-04-15-00012-P ...... exempt Disposition of tax refunds and other related To determine the disposition of tax refunds and matters. other related matters.

PSC-06-15-00003-P ...... exempt Petition for submetering of electricity To consider the request of City Point Residential LLC, to submeter electricity at 366 Flatbush Avenue Ext, Brooklyn, New York

PSC-07-15-00006-P ...... exempt Whether to order a remand regarding Whether to order a remand regarding payphone payphone rates rates and award refunds

PSC-08-15-00009-P ...... exempt Approval of a surcharge. To allow or disallow Emerald Green Lake Louise Marie Water Company, Inc. for a surcharge.

PSC-08-15-00010-P ...... exempt Request pertaining to the lawfulness of To grant, deny, or modify URAC Rate National Grid USA continuing its summary Consultants' request that National Grid cease its billing program. summary billing program.

PSC-10-15-00007-P ...... exempt Notification concerning tax refunds To consider Verizon New York Inc.'s partial rehearing or reconsideration request regarding retention of property tax refunds

PSC-10-15-00008-P ...... exempt Whether to waive Policy on Test Periods in Whether to waive Policy on Test Periods in Major Rate Proceedings and provide authority Major Rate Proceedings and provide authority to to file tariff changes file tariff changes

PSC-10-15-00009-P ...... exempt Contingency Tariffs regarding demand To consider Contingency Tariffs regarding response issues demand response issues

PSC-10-15-00010-P ...... exempt Notification concerning tax refunds To consider Verizon New York Inc.'s request to retain a portion of a property tax refund

PSC-12-15-00007-P ...... exempt The Annual Reconciliation of Gas Expenses Examine the Annual Reconciliation of Gas and Gas Cost Recoveries codified at Title 16 Expenses and Gas Cost Recoveries mechanism NYCRR Section 720.6.5

PSC-12-15-00008-P ...... exempt Minor electric rate filing To approve an increase in annual electric revenues by approximately $299,966 or 3.2%

108 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-13-15-00024-P ...... exempt Whether Leatherstocking should be permitted To decide whether to approve Leatherstocking's to recover a shortfall in earnings request to recover a shortfall in earnings

PSC-13-15-00026-P ...... exempt Whether to permit the use of the Sensus To permit the use of the Sensus Smart Point Smart Point Gas AMR/AMI product Gas AMR/AMI product

PSC-13-15-00027-P ...... exempt Whether to permit the use of the Measurlogic To permit the use of the Measurlogic DTS 310 DTS 310 electric submeter submeter

PSC-13-15-00028-P ...... exempt Whether to permit the use of the SATEC To permit necessary to permit the use of the EM920 electric meter SATEC EM920 electric meter

PSC-13-15-00029-P ...... exempt Whether to permit the use the Triacta Power To permit the use of the Triacta submeters Technologies 6103, 6112, 6303, and 6312 electric submeters

PSC-14-15-00010-P ...... exempt The sale of utility property Whether to authorize the sale of street lighting facilities to the Town of West Seneca

PSC-15-15-00004-P ...... exempt Whether to permit the use of the GE/Dresser Whether to approve the use of tthe Model 5 Model 5 transfer prover with 20M and 5M transfer prover, with 20M, and 5M reference reference standards stds

PSC-15-15-00005-P ...... exempt The approval of Arteche's Medium Voltage Whether to approve the use of Arteche's Class Metering Instrument Transformers in Medium Voltage Class Metering Instrument New York State Transformers in New York State

PSC-15-15-00007-P ...... exempt Notification concerning tax refunds To consider Verizon New York Inc.'s request to retain a portion of a property tax refund

PSC-15-15-00008-P ...... exempt Minor electric rate filing To approve an increase in annual electric revenues by approximately $1,197,760 or 2.48%

PSC-16-15-00010-P ...... exempt The submetering of electric service at 325 Whether to authorize the submetering of electric Lexington Avenue, New York, NY 10016 service at 325 Lexington Avenue, New York, NY 10016

PSC-17-15-00004-P ...... exempt Rehearing of the Commission's Order Adopting Consideration of a petition for rehearing Regulatory Policy Framework and Implementation Plan

PSC-17-15-00005-P ...... exempt The submetering of electricity To consider the request of Cottage Street Apartments, LLC, to submeter electricity at 31 Cottage Street, Troy, New York

PSC-17-15-00006-P ...... exempt Petition to submeter electricity To consider the request of 56th and Park (NY) LLC, to submeter electricity at 432 Park Avenue, New York, New York

PSC-17-15-00007-P ...... exempt To consider the petition of Leatherstocking To consider the petition of Leatherstocking Gas Gas Company, LLC seeking authority to issue Company, LLC seeking authority to issue long- long-term debt of $2.75 million term debt of $2.75 million

PSC-17-15-00009-P ...... exempt To make clarifying tariff revisions For approval to make clarifying revisions to Rule 28 - Special Services Performed by Company at a Charge

PSC-18-15-00004-P ...... exempt National Grid's electric Economic Development To revise the economic development assistance Programs to qualified businesses

109 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-18-15-00005-P ...... exempt Con Edison's Report on its 2014 performance Con Edison's Report on its 2014 performance under the Electric Service Reliability under the Electric Service Reliability Performance Mechanism Performance Mechanism

PSC-18-15-00006-P ...... exempt Proposed Targeted Demand Management To effectuate the TDM Program and to establish (TDM) Program and REV Demonstration incentives and cost recovery for the TDM Projects Cost Recovery and Incentive program and REV Demonstration Projects Mechanisms

PSC-18-15-00007-P ...... exempt National Grid's Economic Development To authorize a new economic development Programs program for National Grid's natural gas service territory

PSC-19-15-00011-P ...... exempt Gas Safety Performance Measures and To update the performance measures applicable associated negative revenue adjustments to KeySpan Gas East Corporation d/b/a National Grid

PSC-19-15-00015-P ...... exempt To consider the request of Hudson CBD To consider the request of Hudson CBD Flatbush LLC to submeter electricity at 626 Flatbush LLC to submeter electricity at 626 Flatbush Avenue, Brooklyn, New York Flatbush Avenue, Brooklyn, New York

PSC-20-15-00006-P ...... exempt Implementation of the proposed Microgrid Consider implementation of the proposed Business Model as a reliability and demand Microgrid Business Model as a reliability and management resource demand management resource

PSC-20-15-00008-P ...... exempt Petition for rehearing and/or clarification of the To consider the petition for rehearing and/or Commission's Order, issued in Case clarification filed by the Town of Ramapo 13-W-0246

PSC-21-15-00007-P ...... exempt Whether Bath should be permitted to recover Whether Bath should be permitted to recover purchased gas costs, interest and consulting purchased gas costs, interest and consulting fees from its ratepayers fees from its ratepayers

PSC-22-15-00015-P ...... exempt To consider the request for waiver of the To consider the request for waiver of the individual residential unit meter requirements individual residential unit meter requirements and and 16 NYCRR 96.1(a) 16 NYCRR 96.1(a)

PSC-23-15-00005-P ...... exempt The modification of New York American Whether to adopt the terms of the Joint Water's current rate plan Proposal submitted by NYAW and DPS Staff

PSC-23-15-00006-P ...... exempt The modification of New York American Whether to adopt the terms of the Joint Water's current rate plan Proposal submitted by NYAW and DPS Staff

PSC-23-15-00007-P ...... exempt Notice of Intent to Submeter electricity To consider the request of 200 W. 54 Corp. to submeter electricity at 200 West 54th Street, New York, New York

PSC-24-15-00009-P ...... exempt Petitions for rehearing of the April 20, 2015 To consider Petitions for rehearing of the April Order Continuing and Expanding the Standby 20, 2015 Order Continuing and Expanding the Rate Exemption Standby Rate Exemption

PSC-24-15-00011-P ...... exempt To consider adopting the recommendations of To consider the Staff Report on, and the Staff Report on addressing energy recommendations of, best practices for affordability for low income programs implementing utility low income programs

PSC-25-15-00007-P ...... exempt Waiver of certain Commission requirements To allow a non-profit entity acting as an related to blocking caller ID for emergency emergency service the ability to receive services unblocked caller ID numbers

PSC-25-15-00008-P ...... exempt Notice of Intent to Submeter electricity. To consider the request of 165 E 66 Residences, LLC to submeter electricity at 165 East 66th Street, New York, New York.

110 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-25-15-00010-P ...... exempt Notice of Intent to Submeter electricity To consider the request of 250 West Street Condominium to submeter electricity at 250 West Street, New York, New York

PSC-26-15-00014-P ...... exempt To consider the request for partial waiver of To consider the request for partial waiver of the the energy audit requirements in 16 NYCRR energy audit requirements in 16 NYCRR Section Section 96.5(k) 96.5(k)

PSC-26-15-00016-P ...... exempt Petition to Submeter electricity To consider the request of 39 Plaza Housing Corporation to submeter electricity at 39 Plaza Street West, Brooklyn, New York

PSC-27-15-00011-P ...... exempt Repowering options for the Cayuga Generating To establish whether utility plans should include Facility located in Lansing, New York, and repowering the Cayuga Generating Facility, or other alternatives other alternatives

PSC-27-15-00012-P ...... exempt Consideration of The Brooklyn Union Gas To consider the petition of The Brooklyn Gas Company's petition seeking authority to issue Company seeking authority to issue long-term long-term debt up to $2.22 billion debt up to $2.22 billion

PSC-27-15-00014-P ...... exempt Authorization for NYAW to accrue interest on To allow NYAW to accrue interest on internal internal reserve debit balances reserve debit balances

PSC-27-15-00015-P ...... exempt Consideration of KeySpan Gas East To consider the petition of KeySpan Gas East Corporation's petition seeking authority to Corporation seeking authority to issue long-term issue long-term debt up to $1.35 billion debt up to $1.35 billion

PSC-27-15-00017-P ...... exempt To issue long-term indebtedness, preferred To allow or disallow Rochester Gas and Electric stock and hybrid securities and to enter into Corporation to finance transactions for purposes derivative instruments authorized under PSL Section 69

PSC-27-15-00018-P ...... exempt Authorization of a proposed transfer of certain Whether to authorize the proposed transfer of property located on the Verplanck Peninsula to certain property located on the Verplanck the Town of Cortlandt Peninsula to the Town of Cortlandt

PSC-28-15-00006-P ...... exempt The minor electric rate filing of Mohawk Whether to increase Mohawk Municipal Municipal Commission Commission's annual electric revenues by approximately $113,119 or 13.74%

PSC-29-15-00016-P ...... exempt A benefit-cost framework will be adopted to To develop a method for valuing resources that guide utility proposals within the context of will further REV objectives REV and related proceedings

PSC-29-15-00017-P ...... exempt Notification concerning tax refunds To consider Verizon New York Inc.'s request to retain a portion of a property tax refund

PSC-29-15-00018-P ...... exempt Approval of ratemaking related to amendment To approve or reject the ratemaking aspects of a certificate of public convenience and SLG's petition to amend its certificate of public necessity convenience and necessity

PSC-29-15-00020-P ...... exempt Whether to waive the requirement that the To waive the requirement that the customer customer have telecommunications service in have telecommunications service in place 30 place 30 days prior to July 1, 2015 days prior to July 1, 2015

PSC-29-15-00021-P ...... exempt Whether to permit the use of various Pursuant to 16 NYCRR Parts 92 and 93, the Instrument Transformer Equipment Corporation Commission must approve the use of the ITEC current and voltage transformers in New York current and voltage transformers

PSC-29-15-00022-P ...... exempt Notice of Intent to Submeter electricity To consider the request of 92nd and 3rd Associates, LLC to submeter electricity at 205 East 92nd Street, New York, New York

111 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-29-15-00023-P ...... exempt Notice of Intent to Submeter electricity To consider the request of Bridge Land Hudson LLC to submeter electricity at 261 Hudson Street, New York, New York

PSC-29-15-00025-P ...... exempt Joint Petition for authority to transfer real Whether to authorize the proposed transfer of property located at 624 West 132nd Street, real property located at 624 West 132nd Street, New York, NY New York, NY

PSC-30-15-00002-P ...... exempt Whether to approve the transfer of street Approval of the transfer of street lighting lighting facilities. facilities from Orange and Rockland Utilities, Inc. to the town of Clarkstown.

PSC-30-15-00003-P ...... exempt Petition to transfer and merge systems, To consider the Charter and Time Warner Cable franchises and assets and issue debt. merger and transfer of systems, franchises and assets and issuance of debt.

PSC-31-15-00004-P ...... exempt Proposed electric Energy Efficiency Budget To establish an Energy Efficiency Budget and and Metrics Plan Metrics Plan for the Company's electric portfolio for the years 2016-2018

PSC-31-15-00005-P ...... exempt Proposed gas Energy Efficiency Budget and To establish an Energy Efficiency Budget and Metrics Plan Metrics Plan for the Company's gas portfolio for the years 2016-2018

PSC-31-15-00006-P ...... exempt Proposed electric Energy Efficiency Budget To establish an Energy Efficiency Budget and and Metrics Plan Metrics Plan for the Company's electric portfolio for the years 2016-2018

PSC-31-15-00007-P ...... exempt Plan to convert petroleum pipeline into a Whether to approve the proposed conversion natural gas pipeline plan submitted by NIC Holding Corp

PSC-31-15-00008-P ...... exempt Notice of Intent to Submeter electricity To consider the request of 122 2nd Street Assoc., LLC to submeter electricity at 122 Second Street,Watervliet, New York

PSC-31-15-00010-P ...... exempt Whether to approve, reject or modify, in whole To revise Appendix B of the December 12, 2014 or in part, revisions to Appendix B of the Order December 12, 2014 Order

PSC-31-15-00011-P ...... exempt Clarification and revision of local distribution To grant, deny or modify, in whole or in part, the company inspection and remediation plans for request in Orange & Rockland Utilities, Inc.'s plastic fusions Petition for Clarification

PSC-31-15-00013-P ...... exempt Proposed gas Energy Efficiency Budget and To establish an Energy Efficiency Budget and Metrics Plan Metrics Plan for the Company's gas portfolio for the years 2016-2018

PSC-31-15-00014-P ...... exempt Proposed gas Energy Efficiency Budget and To establish an Energy Efficiency Budget and Metrics Plan Metrics Plan for the Company's gas portfolio for the years 2016-2018

PSC-31-15-00015-P ...... exempt Proposed gas Energy Efficiency Budget and To establish an Energy Efficiency Budget and Metrics Plan Metrics Plan for the Company's gas portfolio for the years 2016-2018

PSC-31-15-00016-P ...... exempt Proposed electric Energy Efficiency Budget To establish an Energy Efficiency Budget and and Metrics Plan Metrics Plan for the Company's electric portfolio for the years 2016-2018

PSC-31-15-00017-P ...... exempt Proposed electric Energy Efficiency Budget To establish Energy Efficiency Budget and and Metrics Plans Metrics Plans for the Companies' electric portfolios for the years 2016-2018

112 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-31-15-00018-P ...... exempt Proposed gas Energy Efficiency Budget and To establish Energy Efficiency Budget and Metrics Plans Metrics Plans for the Companies' gas portfolios for the years 2016-2018

PSC-31-15-00019-P ...... exempt Proposed electric Energy Efficiency Budget To establish an Energy Efficiency Budget and and Metrics Plan Metrics Plan for the Company's electric portfolio for the years 2016-2018

PSC-31-15-00020-P ...... exempt Proposed gas Energy Efficiency Budget and To establish Energy Efficiency Budget and Metrics Plans Metrics Plans for the Companies' gas portfolios for the years 2016-2018

PSC-32-15-00004-P ...... exempt Recommendations to accelerate switching To consider recommendations to accelerate between utility service and an ESCO switching between utility service and an ESCO

PSC-32-15-00005-P ...... exempt Petition for rehearing of the Order Adopting To consider a petition for rehearing of the Order Dynamic Load Management Filings with Adopting Dynamic Load Management Filings Modifications with Modifications

PSC-32-15-00006-P ...... exempt Development of a Community Solar To approve the development of a Community Demonstration Project. Solar Demonstration Project.

PSC-32-15-00007-P ...... exempt Approval of cost recovery and incentive To approve the cost recovery and incentive mechanisms for the NWA Project. mechanisms for the NWA Project.

PSC-32-15-00009-P ...... exempt Amendments to the Uniform Business To consider amendments to the Uniform Practices of ESCOs. Business Practices of ESCOs.

PSC-32-15-00012-P ...... exempt Proposed standards for Commission oversight To consider proposed standards for Commission of Distributed Energy Resource suppliers. oversight of Distributed Energy Resource suppliers.

PSC-32-15-00013-P ...... exempt Establishing an electric Energy Efficiency To approve the establishment of an electric EE Tracker (EE Tracker) program. Tracker program.

PSC-32-15-00014-P ...... exempt Establishing a gas Energy Efficiency Tracker To approve the establishment of a gas EE (EE Tracker) program. Tracker program.

PSC-32-15-00015-P ...... exempt Establishing a gas Energy Efficiency Tracker To approve the establishment of a gas EE (EE Tracker) program. Tracker program.

PSC-32-15-00016-P ...... exempt Establishing a gas Energy Efficiency Tracker To approve the establishment of a gas EE (EE Tracker) program. Tracker program.

PSC-32-15-00017-P ...... exempt Establishing an electric Energy Efficiency To approve the establishment of an electric EE Tracker (EE Tracker) program. Tracker program.

PSC-32-15-00018-P ...... exempt Establishing an electric Energy Efficiency To approve the establishment of an electric EE Tracker (EE Tracker) program. Tracker program.

PSC-32-15-00019-P ...... exempt Establishing a gas Energy Efficiency Tracker To approve the establishment of a gas EE (EE Tracker) program. Tracker program.

PSC-32-15-00020-P ...... exempt Establishing an electric Energy Efficiency To approve the establishment of an electric EE Tracker (EE Tracker) program. Tracker program.

PSC-32-15-00021-P ...... exempt Establishing a gas Energy Efficiency Tracker To approve the establishment of a gas EE (EE Tracker) program. Tracker program.

PSC-32-15-00022-P ...... exempt Establishing a gas Energy Efficiency Tracker To approve the establishment of a gas EE (EE Tracker) program. Tracker program.

113 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-32-15-00023-P ...... exempt Establishing a gas Energy Efficiency Tracker To approve the establishment of a gas EE (EE Tracker) program. Tracker program.

PSC-33-15-00006-P ...... exempt Recovery of costs related to an RSSA. To recover costs related to an RSSA for services from R.E. Ginna Nuclear Power Plant, LLC.

PSC-33-15-00007-P ...... exempt Approval of revisions to Rule No. 35 updating To approve the proposed revisions to Rule No. wire line and wireless pole attachment rates. 35 updating wire line and wireless pole attachment rates.

PSC-33-15-00008-P ...... exempt Existing ratemaking, rate design and regulatory To use the Commission's ratemaking authority practices will be revised with a focus on to foster a DER-intensive system. outcomes and incentives.

PSC-33-15-00009-P ...... exempt Remote net metering of a demonstration To consider approval of remote net metering of community net metering program. a demonstration community net metering program.

PSC-33-15-00012-P ...... exempt Remote net metering of a Community Solar To consider approval of remote net metering of Demonstration Project. a Community Solar Demonstration Project.

PSC-34-15-00014-P ...... exempt Notice of Intent to Submeter electricity To consider the request of Herkimer Street Residence, L.P. to submeter electricity at 437 Herkimer Street, Brooklyn, New York

PSC-34-15-00015-P ...... exempt Proposals for changes to the Electronic Data To consider proposals for changes to the Interchange Standards Electronic Data Interchange Standards

PSC-34-15-00017-P ...... exempt The abandonment of the Haverstraw To determine if abandoning the desalinization desalinization plant plant is in the public interest

PSC-34-15-00021-P ...... exempt Petition by NYCOM requesting assistance with To consider the petition by NYCOM requesting obtaining information on CLECs and ESCOs assistance with obtaining information on CLECs and ESCOs

PSC-35-15-00008-P ...... exempt Major electric revenue increase To consider an increase to its annual electric revenues by approximately $857,227 or 6.2%

PSC-35-15-00009-P ...... exempt Deferral of incremental storm restoration Consideration of Central Hudson Gas & expenses Electric's request to defer incremental expenses incurred during storm restoration work

PSC-35-15-00010-P ...... exempt Notice of Intent to Submeter Electricity To consider the request of 605 West 42nd Owner LLC to submeter electricity at 605 West 42nd Street, New York, New York

PSC-35-15-00011-P ...... exempt Demand based Standby Service Charges To consider a revision to demand based levied upon Offset Tariff customers accounts Standby Service Charges levied upon Offset Tariff customers accounts

PSC-35-15-00012-P ...... exempt Consideration of consequences against To consider consequences against Spectrum Spectrum Gas & Electric, LLC for violations of Gas & Electric, LLC for violations of the UBP the UBP

PSC-35-15-00013-P ...... exempt Consideration of consequences against Energy To consider consequences against Energy Your Your Way, LLC for violations of the UBP Way, LLC for violations of the UBP

PSC-35-15-00014-P ...... exempt Consideration of consequences against Light To consider consequences against Light Power Power & Gas, LLC for violations of the UBP & Gas, LLC for violations of the UBP

114 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-35-15-00015-P ...... exempt Consideration of consequences against To consider consequences against National National Power & Gas, Inc. for violations of the Power & Gas, Inc. for violations of the UBP UBP

PSC-35-15-00016-P ...... exempt Consideration of consequences against To consider consequences against Engineered Engineered Energy Solutions, LLC for violations Energy Solutions, LLC for violations of the UBP of the UBP

PSC-35-15-00017-P ...... exempt Consideration of consequences against Ipsum To consider consequences against Ipsum Solutions, Inc. for violations of the UBP Solutions, Inc. for violations of the UBP

PSC-36-15-00024-P ...... exempt Petition to Submeter Electricity with a Waiver To consider the request to submeter electricity of 16 NYCRR 96.5(h). and for a waiver of 96.5(h) at 123 West 93rd Street, New York, New York.

PSC-36-15-00025-P ...... exempt Notice of Intent to submeter electricity. To consider the request of 42 West Broad Developers LLC to submeter electricity at 42 Broad Street West, Mount Vernon, New York.

PSC-37-15-00006-P ...... exempt Major electric rate filing To consider an increase in NYSEG's electric delivery revenues by approximately $122 million or 16.8%

PSC-37-15-00007-P ...... exempt Submetered electricity To consider the request of 89 Murray Street Ass. LLC, for clarification of the submetering order issued December 20, 2007

PSC-37-15-00008-P ...... exempt Major gas rate filing To consider an increase in NYSEG's gas delivery revenues by approximately $36.3 million or 19.1%

PSC-37-15-00009-P ...... exempt Major electric rate filing To consider an increase in RG&E's electric delivery revenues by approximately $53 million or 12.1%

PSC-37-15-00010-P ...... exempt Major gas rate filing To consider an increase in RG&E's gas delivery revenues by approximately $21.8 million or 31.1%

PSC-37-15-00012-P ...... exempt Issuance by Corning of long-term indebtedness To consider Corning's petition for authority to issue approximately $34.7 million in long-term debt

PSC-38-15-00007-P ...... exempt Report of Con Edison regarding the Storm To consider the report of Con Edison regarding Hardening and Resiliency Collaborative, Phase the Storm Hardening and Resiliency 3 Collaborative, Phase 3

PSC-38-15-00008-P ...... exempt Notice of Intent to submeter electricity To consider the request of Community Counseling and Mediation to submeter electricity at 226 Linden Blvd., Brooklyn, New York

PSC-39-15-00008-P ...... exempt Minor water rate filing To consider an increase in Windham Ridge Water Corp.'s annual water revenues by approximately $15,059 or 24.8%

PSC-39-15-00009-P ...... exempt Waiver of Niagara Mohawk Power To determine whether a five-year limit on Corporation's electric Tariff PSC No. 220, Rule deposit refunds for utility subdivision work 16.8.1 should be extended via waiver

PSC-39-15-00010-P ...... exempt Major gas revenue increase To consider an increase to its annual gas revenues by approximately $1,228,000 or 2.96%

115 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-39-15-00011-P ...... exempt A joint proposal filed on September 9, 2015 Resolution of Cases 09-M-0114 and 09-M- 0243 regarding alleged imprudent contractor- related construction expenditures

PSC-39-15-00012-P ...... exempt Petition to submeter electricity To consider the request of 47 East 34th Street (NY), L.P., to submeter electricity at 49 East 34th Street New York, New York

PSC-39-15-00013-P ...... exempt Revisions to General Information Section 15 to To consider revisions to General Information allow recovery of certain NYISO tariff charges Section No. 15 to allow for recovery of certain related to transmission projects NYISO charges

PSC-39-15-00014-P ...... exempt Revisions to General Rule No. 25.1 to allow To consider revisions to General Rule No. 25.1 recovery of certain NYISO tariff charges to allow for recovery of certain NYISO charges related to transmission projects related to transmission projects

PSC-40-15-00011-P ...... exempt Proposed Public Policy Transmission Needs/ To ensure that the bulk electric transmission Public Policy Requirements, as defined under system is sufficient to serve the public the NYISO tariff

PSC-40-15-00012-P ...... exempt Establishment of the regulatory regime Consideration of approval of a lightened applicable to an approximately 106 MW regulatory regime for an approximately 106 MW electric generating facility electric generating facility

PSC-40-15-00013-P ...... exempt Issuance by Niagara Mohawk Power To consider a petition for authority to issue Corporation d/b/a National Grid of Long-Term long-term indebtedness in the amount of up to indebtedness of up to $2.07 billion $2.07 billion until March 31, 2020

PSC-40-15-00014-P ...... exempt Whether to permit the use of the Open Way To consider the use of the Open Way 3.5 3.5 with cellular communications electric meter, pursuant to 16 NYCRR Parts 92 and 93

PSC-41-15-00003-P ...... exempt Whether to approve the use of the Siemens To consider the use of the Siemens SEM3 SEM3 Multi Tenant meter submeter

PSC-41-15-00004-P ...... exempt Whether to permit the use of the Enetics NILM To consider permitting the use of the Enetics Recorders NILM Recorders

PSC-41-15-00005-P ...... exempt Intergrow disputes National Grid's revenue To consider whether the revenue assurance assurance calculations National Grid is requiring of Intergrow for the new interconnection is appropriate

PSC-41-15-00006-P ...... exempt The addition of General Information Section 45 To consider the addition of General Information - Empire Zone Rate to Central Hudson's Section 45 - Empire Zone Rate to Central electric tariff Hudson's electric tariff

PSC-41-15-00007-P ...... exempt The allocation of costs for the extension of Whether to grant the complaint of Glenwyck electric service Development, LLC

PSC-41-15-00008-P ...... exempt Petition for deferral and recovery of lost To consider Central Hudson's petition for revenue resulting from Central Hudson's deferral and recovery of lost revenue resulting proposed Empire Zone (EZ) Rate from its proposed EZ Rate provision

PSC-41-15-00009-P ...... exempt Main Tier of the Renewable Portfolio Standard To consider allocating funding from the Main program Tier to an eligible hydroelectric facility

PSC-41-15-00010-P ...... exempt Revisions to SC No. 20 to include a new To consider revisions to SC No. 20 to include a Managed Supply Service and to make changes new Managed Supply Service and make to the Winter Bundled Sales Service changes to the Winter Bundled Sales Service

116 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-41-15-00011-P ...... exempt Deferral of incremental costs incurred in 2014 To consider a petition by Con Edison to defer associated with increased gas leak response certain incremental costs associated with gas and repair activities leak response and repair activities

PSC-41-15-00012-P ...... exempt Changes to the Commercial Demand Response To consider changes to the Commercial Demand programs, as well as conforming tariff revisions Response programs, as well as conforming tariff revisions

PSC-42-15-00006-P ...... exempt Deferral of incremental expenses associated Consideration of Central Hudson's request to with NERC's new Bulk Electric System (BES) defer incremental expenses associated with new compliance requirements approved by FERC. BES compliance requirements.

PSC-42-15-00007-P ...... exempt Notice of Intent to submeter electricity. To consider the request of Sandy Clarkson LLC to submeter electricity at 310 Clarkson Avenue, Brooklyn, New York.

PSC-42-15-00008-P ...... exempt Notice of Intent to submeter electricity. To consider the request of 560 West 24th Street Condominium to submeter electricity at 552 West 24th Street, New York, New York.

PSC-42-15-00009-P ...... exempt Revised method for assigning anniversary To consider a revised method for assigning dates to net-metered residential PV customers. anniversary dates to net-metered residential PV customers.

PSC-42-15-00010-P ...... exempt Petition for modification of Con Edison's S.C. To consider modifications to S.C. No. 4 of Con No. 4 (Back-up/Supplementary) Steam Edison's Schedule for Steam Service. Service.

PSC-42-15-00011-P ...... exempt Proposed transfer of ownership interests in To consider proposed transfer of ownership Cayuga Operating Company, LLC and interests in Cayuga Operating Company, LLC Somerset Operating Company, LLC. and Somerset Operating Company, LLC.

PSC-42-15-00012-P ...... exempt Establishment of the regulatory regime Consideration of a lightened regulatory regime applicable to a proposed natural gas pipeline for a proposed natural gas pipeline facility. facility.

PSC-42-15-00013-P ...... exempt Annual Reconciliation of Gas Expenses and The filings of various LDCs and municipalities Gas Cost Recoveries. regarding their Annual Reconciliation of Gas Expenses and Gas Cost Recoveries.

PSC-43-15-00005-P ...... exempt Modification of the deferral recovery provisions To consider the modification of the deferral of Corning Natural Gas Corporation’s three- recovery provisions of the three-year gas rates year gas rates plan plan

PSC-44-15-00021-P ...... exempt AMI Business Plan of Con Edison To consider Con Edison's AMI Business Plan

PSC-44-15-00022-P ...... exempt Cost recovery mechanism To consider the addition of components to RG&E's Supply Charge for RG&E to recover costs for the NY Transco LLC projects

PSC-44-15-00023-P ...... exempt Cost recovery mechanism To consider the addition of components to NYSEG's Supply Charge for NYSEG to recover costs for the NY Transco LLC projects

PSC-44-15-00024-P ...... exempt The development of reliability contingency To identify the proposed projects for inclusion in plan(s) to address the potential retirement of the Indian Point Energy Center reliability Indian Point Energy Center contingency plan(s)

PSC-44-15-00025-P ...... exempt Distributed System Implementation Plan To consider DPS Staff's proposal regarding the Guidance filing of Distributed System Implementation Plans by utilities

117 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-44-15-00026-P ...... exempt Transfer of water supply assets. To consider the transfer of the water supply assets of Beekman Water Company, Inc. to the Town of East Fishkill.

PSC-44-15-00027-P ...... exempt To establish a surcharge to recover costs due To consider the recovery of expenses incurred to unexpected repairs as a result of having to replace two well pumps and electrical repairs

PSC-44-15-00028-P ...... exempt Deferral of incremental expenses associated Consideration of Central Hudson's request to with new compliance requirements defer incremental expenses associated with new compliance requirements

PSC-44-15-00029-P ...... exempt RiderL-DirectLoad Control (DLC) program To consider enhancing the DLC program and and Residential Smart Appliance Program RSAP by expanding and increasing flexibility of (RSAP) both programs

PSC-44-15-00030-P ...... exempt System Improvement Plan mechanism To consider Bath's petition to implement a SIP mechanism

PSC-44-15-00031-P ...... exempt Transfer ownership of property To consider the transfer of street lighting assets to the Town of Greece

PSC-44-15-00032-P ...... exempt Rider H - Non Residential Distributed To consider revisions to Rider H to allow for the Generation aggregation of distributed generation capacity under certain circumstances

PSC-45-15-00010-P ...... exempt Notice of Intent to submeter electricity. To consider the request of One Vandam Condominium to submeter electricity at 180 Avenue of the Americas, New York, New York.

PSC-47-15-00008-P ...... exempt Notice of Intent to Submeter electricity To consider the request of 150 Charles Street Holdings LLC to submeter electricity at 150 Charles Street, New York, New York

PSC-47-15-00009-P ...... exempt Addition of LED options to NMPC's SC No. 2 in To consider the addition of LED options to its street lighting schedule, P.S.C. No. 214 - NMPC's SC No. 2 in its street lighting schedule, Electricity P.S.C. No. 214 - Electricity

PSC-47-15-00010-P ...... exempt Use of the AMETEK JEMStar II Digital Power To consider permitting the use of AMETEK Meter Power Instrument's JEMStar II Digital Power Meter for electric metering applications

PSC-47-15-00011-P ...... exempt SIR and the interconnection of Distributed Consider SIR and the interconnection of Generation Distributed Generation

PSC-47-15-00012-P ...... exempt Reimbursement of costs for construction under To determine proper reimbursement for costs 16 NYCRR 230 related to trenching and construction

PSC-47-15-00013-P ...... exempt Whitepaper on Implementing Lightened Consider Whitepaper on Implementing Lightened Ratemaking Regulation. Ratemaking Regulation.

PSC-47-15-00014-P ...... exempt The calculation of NYSEG and RG&E's Percent To consider a petition by NYSEG and RG&E to of Estimate customer service quality metric for normalize the February 2015 level of meter February 2015. reading estimates.

PSC-47-15-00015-P ...... exempt Petition to transfer and merge telephone and Consider the the proposed acquisition of cable systems, franchises and assets and Cablevision, its systems, franchises and assets, issue debt. by Altice and the issuance of debt.

PSC-48-15-00010-P ...... exempt Lightened and incidental regulation of a 55 MW Consider the lightened and incidental regulation electric and steam generating facility. of a 55 MW electric and steam generating facility.

118 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

PUBLIC SERVICE COMMISSION PSC-48-15-00011-P ...... exempt Proposal to retire Huntley Units 67 and 68 on Consider the proposed retirement of Huntley March 1, 2016. Units 67 and 68.

PSC-49-15-00006-P ...... exempt Petition to waive monthly billing for certain net- To consider the request of Central Hudson to metered customers continue bimonthly meter reading and billing for certain net-metered customers

PSC-49-15-00007-P ...... exempt Petition to transfer assets of AOMNE to NYAW To consider the petition to transfer assets of AOMNE to NYAW

PSC-49-15-00008-P ...... exempt The request of the New York Independent To consider a petition filed by the New York System Operator, Inc. to incur indebtedness Independent System Operator, Inc. to incur indebtedness

PSC-49-15-00009-P ...... exempt Petition for rehearing of the Order Establishing To consider a Petition for rehearing of the Order Interim Ceilings on the Interconnection of Net Establishing Interim Ceilings on the Metered Generation Interconnection of Net Metered Generation

PSC-49-15-00010-P ...... exempt Proposed revisions to Rule 34 - Economic To consider revisions to Rule 34 - Economic Development Programs and SC No. 12 - Development Programs and SC No. 12 - Special Special Contract Rates Contract Rates

STATE, DEPARTMENT OF

DOS-22-15-00017-P ...... 06/02/16 Facility requirements for businesses which Increase ventilation standards for businesses offer appearance enhancement services which offer appearance enhancement services

DOS-28-15-00004-EP ...... 08/30/16 Installation of carbon monoxide detecting To amend the State Uniform Fire Prevention and devices in commercial buildings Building Code (Uniform Code) by adding standards requiring the installation of carbon monoxide detecting devices in every commercial building

DOS-38-15-00003-EP ...... 09/22/16 Rules relating to insurance and bond To enhance protections to workers by adding requirements new provisions requiring wage coverage

DOS-38-15-00004-EP ...... 09/22/16 Personal protective equipment To require the provision of personal protective equipment

DOS-43-15-00001-P ...... 10/27/16 Experience requirements Clarify maximum hours of experience through review appraisals

DOS-43-15-00002-P ...... 10/27/16 Appraisal Standards To adopt the 2016-2017 edition of the Uniform Standards of Professional Appraisal Practice

DOS-47-15-00016-P ...... 01/28/17 StateEnergy Conservation Construction Code To repeal the existing Energy Code and to (the ‘‘Energy Code’’) adopt a new, updated Energy Code

DOS-47-15-00017-P ...... 01/27/17 Adopt updated provisions for the Uniform Fire To repeal the existing text of the Uniform Code Prevention and Building Code (‘‘Uniform and adopt updated text for the Uniform Code Code’’)

DOS-49-15-00003-P ...... 12/08/16 Cemeteryannualfinancial reports; commercial To reduce the financial reporting burden and crime coverage; and permanent maintenance expense on cemeteries and ensure timely, fund contributions accurate and complete reports are filed

STATE UNIVERSITY OF NEW YORK

SUN-38-15-00002-P ...... 09/22/16 Proposed amendments to traffic and parking Amend existing regulations to update traffic and regulations at State University of New York parking regulations University at Buffalo

119 Action Pending Index NYS Register/December 9, 2015 Agency I.D. No. Expires Subject Matter Purpose of Action

STATE UNIVERSITY OF NEW YORK SUN-45-15-00001-P ...... 11/09/16 To name a new street under construction on To more clearly define traffic patterns at the the Stony Brook Medical Center Medical Center of Stony Brook University

SUN-47-15-00005-EP ...... 11/24/16 College tuition and fees To amend the tuition and fees to allow for resident or in-state tuition to certain veterans and their dependents

TAXATION AND FINANCE, DEPARTMENT OF

TAF-49-15-00004-P ...... exempt Fuel use tax on motor fuel and diesel motor To set the sales tax component and the fuel and the art. 13-A carrier tax jointly composite rate per gallon for the period January administered therewith 1, 2016 through March 31, 2016

TEMPORARY AND DISABILITY ASSISTANCE, OFFICE OF

TDA-49-14-00001-P ...... 12/10/15 Local Advisory Councils Repeal the regulatory requirement that social services districts establish and maintain local advisory councils

TDA-15-15-00003-P ...... 04/14/16 VideoHearings The rule would specifically allow the Office of Administrative Hearings to conduct fair hearings by means of video equipment

TDA-20-15-00001-P ...... 05/19/16 Informationappropriate for victims of sexual To require social services districts to make all assault applicants for and recipients of public assistance aware of their option to receive information appropriate for victims of sexual assault consistent with Chapter 427 of the Laws of 2009

TDA-22-15-00005-P ...... 06/02/16 Supplemental Nutrition Assistance Program Update regulations for the Transitional Benefits Alternative program

TDA-27-15-00002-P ...... 07/07/16 Child support federal incentive payments To update State procedures to distribute federal child support incentives and allocate portions thereof to local districts

TDA-37-15-00005-P ...... 09/15/16 Monthly Shelter Supplements To update State regulations to reflect current State law

TDA-39-15-00016-P ...... 09/29/16 Temporary Housing Placements Adjust the rate approval process for temporary housing placements and expand the scope of inspections for such placements

TDA-45-15-00011-P ...... 11/09/16 Burden of proof at fair hearings challenging Clarify existing State regulations relative to fair Interim Assistance Reimbursement (IAR) hearings and render them consistent with New amounts York State court precedents

TDA-45-15-00012-P ...... 11/09/16 Public Assistance (PA) resources exemption To update State regulation governing PA for four-year accredited post-secondary resources exemption, rendering it consistent educational institutions with Chapter 58 of the Laws of 2014

TDA-46-15-00005-P ...... 11/17/16 Storage of furniture and personal belongings Provide clarification regarding allowances for the storage of furniture and personal belongings

TDA-47-15-00004-P ...... 11/24/16 Child Support Program Amend regulatory requirements concerning the distribution and disbursement of child support collections

120 NYS Register/December 9, 2015 Action Pending Index Agency I.D. No. Expires Subject Matter Purpose of Action

TRANSPORTATION, DEPARTMENT OF

TRN-45-15-00002-P ...... 11/09/16 Liability insurance policies required for Highway To make it easier and less costly for permittees Work Permits to obtain the liability coverage necessary to obtain Highway Work Permits

TRN-47-15-00002-P ...... 11/24/16 Various regulations addressing accident Updates to regulations addressing accident reporting, record retention, insurance, vehicle reporting, record retention, insurance, vehicle inspection and equipment identification inspection, equipment identification

TRN-48-15-00005-P ...... 12/01/16 Updates to various household goods provisions Updates various household goods provisions

VICTIM SERVICES, OFFICE OF

OVS-45-15-00008-P ...... 11/09/16 Attorney's fees for representation before the The purpose of this rule change is to limit office and/or before the appellate division upon attorney's fees pursuant to article 22 of the judicial review Executive Law

OVS-45-15-00009-P ...... 11/09/16 Reduction or denial of a claim based on Create standards for the reduction or denial of a victim's conduct contributing claim based on the victim's conduct contributing

WORKERS’ COMPENSATION BOARD

WCB-14-15-00009-P ...... 04/07/16 Health Insurance Matching Program (HIMP) Provide the process for health insurers to recover from workers' compensation carriers

WCB-37-15-00004-EP ...... 09/15/16 Ambulatory Surgery Fee Schedule Update the methodology for the computation of fees for ambulatory surgery to an Ambulatory Patient Groups (APG) system

WCB-45-15-00019-P ...... 11/09/16 Stipulations To streamline the process for parties to enter into stipulations in workers' compensation proceedings

WCB-45-15-00020-P ...... 11/09/16 Requests for Administrative Review To clarify the proecss for requesting administrative review and full Board review including requests for reconsideration

WCB-45-15-00021-P ...... 11/09/16 Convene Board hearings by electronic means Permit the Chair to convene Board hearings by electronic means

WCB-45-15-00022-P ...... 11/09/16 Voluntary Binding Review of Decisions To permit parties to a workers' compensation case to enter into voluntary binding review of issues related to compensation

WCB-45-15-00023-P ...... 11/09/16 Permitted expenses for funerals To increase the permitted amount for reimbursement of funeral and memorial services for work related deaths

WCB-45-15-00025-P ...... 11/09/16 Medical Treatment Guideline variances Permit the Chair to require submission of variance requests via an electronic medical portal

WCB-45-15-00026-P ...... 11/09/16 Medical Authorizations Permit the Chair to require submission of medical authorization requests via an electronic medical portal

WCB-45-15-00027-P ...... 11/09/16 Medical Treatment Guideline optional prior Change the time to respond from business days approval to calendar days

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GUIDANCE DOCUMENTS

Not less than once each year, every agency shall submit to the Secretary of State for publication in the State Register a list of all Guidance Documents on which the agency currently relies [SAPA, section 202-e(1)]. However, an agency may be exempted from compliance with the requirements of SAPA section 202-e(1) if the agency has published on its website the full text of all Guidance Documents on which it currently relies [SAPA, section 202-e(2)].

Department of Taxation and Finance The Department of Taxation and Finance has published the full text of all guidance documents on which said agency currently relies on at the following website: http://www.tax.ny.gov

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ADVERTISEMENTS FOR BIDDERS/CONTRACTORS SEALED BIDS The only time prospective bidders will be allowed to visit the job site to take field measurements and examine existing conditions of the project area will be at 10:00 a.m. on December 3, 2015 at Elmira Field REPAIR Office, 1879 Davis Street, Elmira, NY. Prospective bidders are urged WALLS AND CEILINGS to visit the site at this time. Prospective bidders or their representa- Elmira Correctional Facility tives attending the pre-bid site visit will not be admitted on facility Elmira, Chemung County grounds without proper photo identification. Note that parking restrictions and security provisions will apply and all vehicles will be subject Sealed bids for Project No. Q1612-C, for Construction Work, to search. Repair Walls & Ceilings, School Building 25, Elmira Correctional Fa- Phone the office of Lara Franzese, (607) 734-0592 a minimum of cility, 1879 Davis Street, Elmira (Chemung County), NY, will be 72 hours in advance of the date to provide the names of those who will received by the Office of General Services (OGS), Design & Construc- attend the pre-bid site visit. tion Group (D&C), Contract Administration, 35th Fl., Corning Tower, Empire State Plaza, Albany, NY 12242, on behalf of the Department It is the policy of the State and the Office of General Services to of Corrections and Community Supervision, until 2:00 p.m. on encourage meaningful minority business enterprise participation in Wednesday, December 16, 2015, when they will be publicly opened this project by contractors, subcontractors and suppliers who perform and read. Each bid must be prepared and submitted in accordance with commercially useful functions under the Contract, and all bidders are the Instructions to Bidders and must be accompanied by a certified expected to cooperate in implementing this policy. check, bank check, or bid bond in the amount of $16,500 for C. The Office of General Services reserves the right to reject any or all Further, Wicks Exempt Projects require a completed BDC 59 be bids. filled out and submitted (included in a separate, sealed envelope) in The Bidding and Contract Documents for this Project are available accordance with Document 002220, Supplemental Instructions to Bid- on compact disc (CD) only, and may be obtained for an $8.00 deposit ders – Wicks Exempt. Failure to submit this form correctly will result per set, plus a $2.00 per set shipping and handling fee. Contractors in a disqualification of the bid. and other interested parties can order CD’s on-line through a secure All successful bidders on a multiple trade project or the successful web interface available 24 hours a day, 7 days a week. Please use the bidder with a bid over $200,000 on a single trade project, will be following link for ordering and payment instructions: http:// required to furnish a Performance Bond and a Labor and Material www.ogs.ny.gov/bu/dc/esb/acquirebid.asp. Bond in the statutory form of public bonds required by Sections 136 For questions about purchase of bid documents, please send an and 137 of the State Finance Law, each for 100% of the amount of the e-mail to [email protected], or call toll free at 1-877-647-7526. Contract estimated to be between $100,000 and $250,000 for C. The For additional information on this project, please use the link below requirement for Labor and Material and Performance Bonds may be and then click on the project number: https://online.ogs.ny.gov/dnc/ waived on a bid under $200,000 on a single trade project. contractorConsultant/esb/ESBPlansAvailableIndex.asp. Pursuant to State Finance Law § 139-j and § 139-k, this solicitation includes and imposes certain restrictions on communications between By John D. Lewyckyj, Deputy Director OGS D&C and a bidder during the procurement process. A bidder is OGS - Design & Construction Group restricted from making contacts from the earliest notice of intent to solicit offers through final award and approval of the Procurement Contract by OGS D&C and Office of the State Comptroller (“restricted period”) to other than designated staff unless it is a contact that is included among certain statutory exceptions set forth in State Finance Law § 139-j(3)(a). Designated staff are Frank Peris and Carl Ruppert in the Bureau of Contract Awards, telephone (518) 474-0203, fax (518) 473-7862 and John Lewyckyj, Deputy Director of Design and Construction, telephone (518) 474-0201, fax (518) 486-1650. OGS D&C employees are also required to obtain certain information when contacted during the restricted period and make a determination of the responsibility of the bidder pursuant to these two statutes. Certain findings of non-responsibility can result in rejection for contract award and in the event of two findings within a 4 year period, the bidder is debarred from obtaining governmental Procurement Contracts. Bid- ders responding to this Advertisement must familiarize themselves with the new Legislative and State Finance Law requirements and will be expected to affirm that they understand and agree to comply on the bid form. Further information about these requirements can be found within the project manual or at: http://ogs.ny.gov/aboutogs/ regulations/defaultAdvisoryCouncil.asp. The substantial completion date for this project is 259 days after the Agreement is approved by the Comptroller.

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MISCELLANEOUS NOTICES/HEARINGS Notice of Abandoned Property The notice can be found at the following URL: http:// Received by the State Comptroller docs.dos.ny.gov/info/ register/2015/november18/pdf/rulemaking.pdf We encourage you to review the notice of proposed rulemaking and Pursuant to provisions of the Abandoned Property Law and related submit comments by December 27, 2015, which is five days after the laws, the Office of the State Comptroller receives unclaimed monies last scheduled hearing. Comments should be submitted by email or in and other property deemed abandoned. A list of the names and last writing to: Katherine Ceroalo, Department of Health, Bureau of House known addresses of the entitled owners of this abandoned property is Counsel, Regulatory Affairs Unit, Corning Tower Bldg., Rm. 2438, maintained by the office in accordance with Section 1401 of the Empire State Plaza, Albany, NY 12237, (518) 473-7488, (518) 473- Abandoned Property Law. Interested parties may inquire if they ap- 2019 (FAX), [email protected] pear on the Abandoned Property Listing by contacting the Office of To further publicize the hearing, please inform interested parties Unclaimed Funds, Monday through Friday from 8:00 a.m. to 4:30 and organizations of the hearings. Oral comments will be limited to p.m., at: ten minutes. The Bureau of Early Intervention will attempt to accom- 1-800-221-9311 modate individual requests to speak at particular times in consideration or visit our web site at: of special circumstances. Ten copies of any prepared testimony should www.osc.state.ny.us be presented at the Public Hearing, and prepared testimony for the Claims for abandoned property must be filed with the New York WebEx should be submitted to [email protected] before the State Comptroller's Office of Unclaimed Funds as provided in Sec- WebEx Public Hearing. tion 1406 of the Abandoned Property Law. For further information contact: Office of the State Comptroller, Office of Unclaimed Funds, 110 State St., Albany, NY 12236. PUBLIC NOTICE Department of Health NOTICE OF Pursuant to 42 CFR Section 447.205, the Department of Health PUBLIC HEARING hereby gives public notice of the following: Department of Health The Department of Health proposes to amend the Title XIX (Medicaid) State Plan for non-institutional services related to Health Bureau of Early Intervention Homes The following clarifications are proposed: Subject: Notice of Proposed Rulemaking for Early Intervention As previously noticed August 26, 2015 the Commissioner of Program Health, in consultation with the Commissioners of the Office of Purpose: To obtain public comment on proposed revisions to amend Mental Health (OMH); the Office of Alcoholism and Substance Abuse Early Intervention Program Regulations Services (OASAS); the Office of Children and Family Services December 21, 2015 (OCFS); and the State Education Department (SED) will amend the 1:00 PM to 3:00 PM State Plan for Health Home services to reflect the prioritization and Auditorium at the School of Public Health phase-in of children for enrollment in Health Homes. Proposed State University at Albany Plan Amendments include amending the eligibility criteria to include One University Place complex trauma and serious emotional disturbance, and enhanced federal match as appropriate; reflecting the use of the Child and Ado- Rensselaer, NY 12144 lescent Needs and Strengths assessment tool modified for New York (This location is accessible to the mobility impaired). State (i.e., CANS-NY) to determine Health Home rates for children; December 22, 2015 and to establishing legacy rates or payment methodology as may be WebEx Public Hearing required for existing children’s targeted case management programs 9:00 AM to 12:00 PM to transition to Health Home care management services. The new effective date is October 1, 2016 rather than January 1, 2016. Event address: https://meetny.webex.com/meetny/onstage/ g.php?MTID=ee838b8919d457c90789d39978974da4b The Department of Health also proposes to amend the Title XIX (Medicaid) State Plan for non-institutional services. The following Event number: 644 719 380 clarifications are proposed: Effective January 1, 2016 through August Event password: NYEIS2015 31, 2016, the State will continue to reimburse converted Targeted The NYS Department of Health has published a notice of proposed Case Management (TCM) providers at their existing Health Home rulemaking for the New York State Early Intervention Program in the Legacy TCM rates. Effective September 1, 2016 Health Home provid- November 18, 2015 issue of the New York State Register. The ers, including TCM providers, will be paid Health Home per member proposed revisions amend the early intervention program regulations, rates that are based on three tiers, “high, medium, low”, acuity, as needed, to comply with federal revisions to 34 CFR Parts 300 and functional status, and region, and a uniform case finding rate. Current 303, including sections of regulation pertaining to definitions, the rates to implement court orders for the Assisted Outpatient population child find system, service coordination, individualized family service (Health Home Plus) and the Adult Home population will remain in plans, transition, and authority to establish a fixed payment methodol- effect. The public is invited to review and comment on this proposed ogy for service coordination services. Amendments are also proposed State Plan Amendment. Copies of which will be available for public to conform early intervention program regulations to amendments to review on the Department’s website at http://www.health.ny.gov/ Public Health Law. regulations/stateplans/status.

127 Miscellaneous Notices/Hearings NYS Register/December 9, 2015

Copies of the proposed State Plan Amendments will be on file in The Department of Health proposes to amend the Title XIX each local (county) social services district and available for public (Medicaid) State Plan for long term care services, to comply with review. enacted statutory provisions. The following provides clarification to For the New York City district, copies will be available at the fol- provisions previously noticed on October 29, 2014, and February 25, lowing places: 2015: The approved Severe Financially Distressed Provider Group along New York County with their estimated aggregate amounts are now: 250 Church Street New York, New York 10018 2014-2015 2015-2016 2016-2017 $0.00 $20,000,000.00 $20,000,000.00 Queens County, Queens Center 3220 Northern Boulevard There is no additional estimated annual change to gross Medicaid Long Island City, New York 11101 expenditures as a result of the clarifying proposed amendments. The public is invited to review and comment on this proposed State Kings County, Fulton Center Plan Amendment. Copies of which will be available for public review 114 Willoughby Street on the Department’s website at http://www.health.ny.gov/regulations/ stateplans/status. Brooklyn, New York 11201 Copies of the proposed State Plan Amendments will be on file in each local (county) social services district and available for public Bronx County, Tremont Center review. 1916 Monterey Avenue For the New York City district, copies will be available at the fol- Bronx, New York 10457 lowing places:

Richmond County, Richmond Center New York County 95 Central Avenue, St. George 250 Church Street Staten Island, New York 10301 New York, New York 10018

For further information and to review and comment, please contact: Queens County, Queens Center Department of Health, Division of Finance and Rate Setting, 99 3220 Northern Boulevard Washington Ave. – One Commerce Plaza, Suite 1460, Albany, NY Long Island City, New York 11101 12210, spa[email protected] Kings County, Fulton Center PUBLIC NOTICE 114 Willoughby Street Department of Health Brooklyn, New York 11201 In July 1997, New York State received approval from the federal Bronx County, Tremont Center government of its Section 1115 waiver request, known as the Partner- ship Plan. Approval of this waiver allowed the State to implement a 1916 Monterey Avenue mandatory Medicaid managed care program in counties with sufficient Bronx, New York 10457 managed care capacity and the infrastructure to manage the education and enrollment processes essential to a mandatory program. Richmond County, Richmond Center This letter is to notify you that New York State will request a waiver 95 Central Avenue, St. George amendment from the federal government that allow for revisions to Staten Island, New York 10301 the state’s MRT Waiver Amendment. The MRT Waiver Amendment was approved in April 2014, and reinvests $8 billion in savings gener- For further information and to review and comment, please contact: ated by the Medicaid Redesign Team (MRT) reforms to transform the Department of Health, Division of Finance and Rate Setting, 99 state’s health care delivery system, bend the Medicaid cost curve, and Washington Ave. – One Commerce Plaza, Suite 1460, Albany, NY assure access to quality care for Medicaid members. The proposed 12210, spa[email protected] revisions will not change the structure or intent of the waiver amendment programs; the revisions are intended to provide clarity, add detail and better reflect the program and policy implementation to date. In PUBLIC NOTICE addition, the revisions will provide additional detail and reflect actual Power Authority of the State of New York spending of waiver amendment dollars to date and revised projections The Power Authority of the State of New York (NYPA) has an- of sources and uses in future years. nounced an extended public comment period for its proposal to Additional information concerning the Partnership Plan and any increase production rates for its Westchester County Governmental amendment requests can be obtained by writing to: Department of Customers, pursuant to Public Authorities Law, section 1005(6), for Health, Office of Health Insurance Programs, Corning Tower (OCP the purpose of aligning rates and costs. A Public Forum was held on Suite 720), Attention Waiver Management Unit, Albany, NY 12237 November 24, 2015 at 11:00 a.m. in White Plains, New York. or by email: [email protected] The comment period, which commenced on October 21, 2015 and Written comments concerning the amendment will be accepted at was due to expire on December 7, 2015, will now end on February 7, the above address for a period of thirty (30) days from the date of this 2016. notice. More details will be made available at the state’s MRT waiver Comments may be sent to: Karen Delince, Corporate Secretary, website at http://www.health.ny.gov/healthcare/medicaid/redesign/ Power Authority of the State of New York, 123 Main St., 11-P, White mrtwaiver.htm. Plains, NY 10601, (914) 390-8085, email: [email protected]

PUBLIC NOTICE PUBLIC NOTICE Department of Health Department of State Pursuant to 42 CFR Section 447.205, the Department of Health An open board meeting of the NYS Hearing Aid Dispensing Advi- hereby gives public notice of the following: sory Board will be held on December 16, 2015 at 10:30 a.m. at the

128 NYS Register/December 9, 2015 Miscellaneous Notices/Hearings

Department of State, 99 Washington Ave., 5th Fl. Conference Rm., 6. EXCO Resources (PA), LLC, Pad ID: Dale Bower Pad 2, ABR- Albany; 65 Court St., 2nd Fl. Conference Rm.; and, 123 William St., 201212007, Penn Township, Lycoming County, Pa.; Rescind Date: 2nd Fl. Conference Rm., New York City. October 8, 2015. Should you require further information, please contact: Sharon 7. EXCO Resources (PA), LLC, Pad ID: Herring Pad 9, ABR- Charland at [email protected] or (518) 473-2733 201012027, Graham Township, Clearfield County, Pa.; Rescind Date: October 8, 2015. PUBLIC NOTICE 8. EXCO Resources (PA), LLC, Pad ID: Kepner Unit Well Pad, Department of State ABR-201205013, Penn Township, Lycoming County, Pa.; Rescind Notice of Review for the Date: October 8, 2015. Village of Macedon 9. EXCO Resources (PA), LLC, Pad ID: Murray Unit Pad, ABR- Draft Local Waterfront Revitalization Program 201204005, Penn Township, Lycoming County, Pa.; Rescind Date: October 8, 2015. PURSUANT to Article 42 of the New York State Executive Law and 19 NYCRR Part 601, the New York State Department of State 10. EXCO Resources (PA), LLC, Pad ID: Painters Den Pad 1, ABR- (DOS) has accepted a Draft Local Waterfront Revitalization Program 201202010, Davidson Township, Sullivan County, Pa.; Rescind Date: (LWRP) for the Village of Macedon, located within Wayne County October 8, 2015. and the Finger Lakes region. The LWRP serves as a comprehensive 11. EXCO Resources (PA), LLC, Pad ID: Spotts Unit Drilling Pad management program for the Village’s waterfront resources along the 3H, 4H, 5H, 7H, 8H, 9H, ABR-201202003, Miffling Township, Erie Canal and Ganargua Creek. Lycoming County, Pa.; Rescind Date: October 8, 2015. To approve the Village of Macedon LWRP, the Secretary of State 12. Chesapeake Appalachia, LLC, Pad ID: Bumpville, ABR- must find that it is consistent with Article 42 of the Executive Law 201202023, Litchfield Township, Bradford County, Pa.; Rescind and that it does not conflict with existing State programs and policies. Date: October 21, 2015. Since State agency actions must be consistent with an approved 13. Chesapeake Appalachia, LLC, Pad ID: CMI, ABR-201203021, LWRP, Article 42 requires that the public and any potentially affected Wysox Township, Bradford County, Pa.; Rescind Date: October 21, State and regional agencies be given the opportunity to comment on 2015. the proposed program. For this purpose, the Village of Macedon Draft 14. Chesapeake Appalachia, LLC, Pad ID: Dr. Marone, ABR- LWRP is available online at http://www.dos.ny.gov/opd/programs/ 201405007, Washington Township, Wyoming County, Pa.; Rescind WFRevitalization/LWRPdraft.html. Date: October 21, 2015. Comments on the Village of Macedon Draft LWRP should be 15. Chesapeake Appalachia, LLC, Pad ID: Ford, ABR-201106004, submitted by February 12, 2016 to: Renee Parsons, Department of Orwell Township, Bradford County, Pa.; Rescind Date: October 21, State, Office of Planning and Development, 99 Washington Ave., 2015. Suite 1010, Albany, NY 12231-0001, (518) 473-2461 16. Chesapeake Appalachia, LLC, Pad ID: Hare Ridge, ABR- 201210001, Rush Township, Susquehanna County, Pa.; Rescind Date: PUBLIC NOTICE October 21, 2015. Susquehanna River Basin Commission 17. Chesapeake Appalachia, LLC, Pad ID: Matthews, ABR- Projects Rescinded for Consumptive Uses of Water 201203018, Sheshequin Township, Bradford County, Pa.; Rescind Date: October 21, 2015. SUMMARY: This notice lists the approved by rule projects rescinded by the Susquehanna River Basin Commission during the 18. Chesapeake Appalachia, LLC, Pad ID: Maurice, ABR- period set forth in “DATES.” 201204006, Herrick Township, Bradford County, Pa.; Rescind Date: October 21, 2015. DATES: October 1-31, 2015. 19. Chesapeake Appalachia, LLC, Pad ID: Shumhurst, ABR- ADDRESSES: Susquehanna River Basin Commission, 4423 North 201205019, Tuscarora Township, Bradford County, Pa.; Rescind Front Street, Harrisburg, PA 17110-1788. Date: October 21, 2015. FOR FURTHER INFORMATION CONTACT: Jason E. Oyler, 20. Chesapeake Appalachia, LLC, Pad ID: Simplex, ABR- General Counsel, telephone: (717) 238-0423, ext. 1312; fax: (717) 201204011, Standing Stone Township, Bradford County, Pa.; Rescind 238-2436; e-mail: [email protected]. Regular mail inquiries may be Date: October 21, 2015. sent to the above address. 21. Chesapeake Appalachia, LLC, Pad ID: Whitney, ABR- SUPPLEMENTARY INFORMATION: This notice lists the proj- 201208006, Rush Township, Susquehanna County, Pa.; Rescind Date: ects, described below, being rescinded for the consumptive use of wa- October 21, 2015. ter pursuant to the Commission’s approval by rule process set forth in 18 CFR § 806.22(e) and § 806.22(f) for the time period specified AUTHORITY: Pub. L. 91-575, 84 Stat. 1509 et seq., 18 CFR Parts above: 806, 807, and 808. Rescinded ABR Issued Dated: November 23, 2015. 1. Energy Corporation of America, Pad ID: COP 325 A, ABR- Stephanie L. Richardson, 201112011, Girard Township, Clearfield County, Pa.; Rescind Date: Secretary to the Commission. October 5, 2015. 2. Range Resources-Appalachia, LLC, Pad ID: Rupert, Elton Unit PUBLIC NOTICE #1H Drilling Pad, ABR-201012047, Penn Township, Lycoming Uniform Code Regional Boards of Review County, Pa.; Rescind Date: October 5, 2015. Pursuant to 19 NYCRR 1205, the petitions below have been 3. EXCO Resources (PA), LLC, Pad ID: Cadwalader Pad 2A, ABR- received by the Department of State for action by the Uniform Code 201309006, Cogan House Township, Lycoming County, Pa.; Rescind Regional Boards of Review. Unless otherwise indicated, they involve Date: October 8, 2015. requests for relief from provisions of the New York State Uniform 4. EXCO Resources (PA), LLC, Pad ID: Cadwalader Pad 3, ABR- Fire Prevention and Building Code. Persons wishing to review any 201309010, Cogan House Township, Lycoming County, Pa.; Rescind petitions, provide comments, or receive actual notices of any subse- Date: October 8, 2015. quent proceeding may contact Gerard Hathaway, Building Standards 5. EXCO Resources (PA), LLC, Pad ID: Daisy Barto Unit Well And Codes, Department of State, One Commerce Plaza, 99 Washing- Pad, ABR-201205003, Penn Township, Lycoming County, Pa.; Re- ton Ave., Albany, NY 12231, (518) 474-4073 to make appropriate scind Date: October 8, 2015. arrangements.

129 Miscellaneous Notices/Hearings NYS Register/December 9, 2015

2015-0625 Matter of Carousel Center Company, LP also known as the Pyramid Companies and Destiny USA/Carousel Center Mall, 9090 Destiny USA Drive, City of Syracuse, County of Onondaga, NY for a variance concerning the use of materials in certain arrangements within the building as well as requirements for fire protection systems. Involved is a covered mall building used as an unseparated mixed use building, known as Destiny USA, located at 9090 Destiny USA Drive, City of Syracuse, Onondaga County, State of New York.

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