Five Year Review of Existing Regulations

Pursuant to section 207 of the State Administrative Procedure Act (SAPA), notice is hereby provided of rules adopted by the New York State Civil Service Commission and the President of the New York State Civil Service Commission for the calendar years 1999 and 2004.

Contained below is a brief description of each rule, including the statutory authority therefor; a statement setting forth the justification for the ongoing need for each rule; and the Department's recommendations for continuation without modification.

1999

Amendments to Chapter II of Title 4 of NYCRR (Attendance Rules for Employees in New York State Departments and Institutions)

Statutory Authority: Civil Service Law section 6

Description of the Regulations:

The resolutions added new sections and amended existing sections of the Attendance Rules for non-managerial/confidential (Part 21 of 4 NYCRR) and managerial/confidential (Part 28 of 4 NYCRR) employees in New York State Departments and Institutions.

Sections 21.16 and 28-1.18 of the Attendance Rules were adopted to permit appointing authorities to grant overtime ineligible employees who have exhausted military leave with pay provided pursuant to the New York State Military Law, further leave with pay without charge to accruals for any period[s] of less than a workweek during which such employees are ordered to temporary military duty.

Section 21.9 and 28-1.9 of the Attendance Rules were amended to permit agencies to grant overtime ineligible employees leave with pay without charge to accruals for any absence[s] of less than a workweek during which such employees are required to appear as a witness pursuant to a subpoena or other order of court, regardless of whether an employee is a party to the action.

These rules ensure that the Attendance Rules will be applied to employees serving in overtime ineligible positions consistent with relevant provisions of the federal Fair Labor Standards Act (FLSA).

Action: The rules have functioned consistent with the purposes underlying their adoption and the Department recommends continuation without modification.

Amendments to Chapter V of 4 NYCRR (Regulations of the Department of Civil Service [President's Regulations])

Statutory Authority: Chapter 534 of the Laws of 1998, amending section 167(2) of the Civil Service Law.

Description of the Regulations:

Chapter 534 of the Laws of 1998 amended section 167(2) of the Civil Service Law to provide that unpaid board members of public authorities shall be eligible to participate in the New York State Employee Health Insurance Program (NYSHIP) after six months of service.

The regulation added a new subparagraph (iv) to section 73.1(c)(1) and a new paragraph (5) to section 73.1(e) of the President's Regulations providing that unpaid board members of public authorities may participate in NYSHIP after six months of service and may also continue their NYSHIP enrollment upon leaving public service with 20 years or more of service in such positions.

Action: The regulations have functioned consistent with the purposes underlying their adoption and the Department recommends continuation without modification.

Amendment to Chapter V of 4 NYCRR (Regulations of the Department of Civil Service [President's Regulations])

Statutory Authority: Civil Service Law, Article XI

Description of the Regulation:

Section 73.3(b)(1) of the President's Regulations was amended to enable participating agencies (PAs) and participating employers (PEs) in the New York State Health Insurance Program (NYSHIP) to contribute towards health insurance premiums on behalf of employees on leave without pay, provided such benefit is accorded to all employees within a class or category. The amendment provides that upon (60) days prior notice to the Department of Civil Service, PAs and PEs may provide such benefit to an eligible employee for a period of two years. This authorization may be extended for one additional two year period by the State Civil Service Commission for good cause shown and where the interests of government would be served. The amendment further provides that where contributions have been made on behalf of an employee on leave without pay for a two year period, or a four year period where authorized by the State Civil Service Commission, no further extensions may be granted unless the employee returns to his or her position and serves continuously therein for the six month period immediately preceding a subsequent leave of absence.

This regulation extends an additional potential benefit to eligible employees and forms a part of the overall "benefit package" that employers may consider when electing to adopt NYSHIP as a health insurance offering.

Action: The regulation has functioned consistent with the purposes underlying its adoption and the Department recommends continuation without modification.

2004

Amendment to Chapter IV of 4 NYCRR (Regulations of the Regulations of the State Civil Service Commission [Commission's Regulations])

Statutory Authority: Civil Service Law section 6

Description of the Regulation:

The resolution amended Part 55.2 to provide that a committee on appeals of the State Civil Service Commission shall not consider an examination appeal from a candidate whose score at time of establishment of the eligible list is immediately reachable for appointment as provided in section 61 of the Civil Service Law. However, a committee on appeals will consider timely appeals where a candidate's reachability for appointment is affected by the committee's determination of another appeal.

This resolution eliminates the need to consider examination appeals from candidates who are already eligible for immediate appointment pursuant to the Civil Service Law "rule of three." Based upon public comments received before adoption of the resolution, the rule provides for continued consideration of timely appeals if candidates' reachability could be impacted by other pending examination appeals.

Action: The regulation has functioned consistent with the purposes underlying its adoption and the Department recommends continuation without modification.

Various amendments to the Appendices to the Rules for the Classified Service (1999 and 2004)

Appendix 1 (Exempt Class)

Appendix 2 (Non-Competitive Class)

Statutory Authority:

Appendix 1: Civil Service Law, sections 6 and 41; 4 NYCRR 2.1

Appendix 2: Civil Service Law, sections 6 and 42; 4 NYCRR 2.2

Description of the regulations:

Civil Service Commission rules relating to the jurisdictional classification of positions were specifically exempted from review under Executive Order 20 by the Governor's Office for Regulatory Reform (GORR), upon a finding by GORR that review of such rules lacked substantial benefit. Based upon this determination by GORR, and pursuant to SAPA section 207, subdivision 5, a recitation of amendments to Appendices 1 and 2 to Title 4 of NYCRR adopted during calendar years 1999 and 2004 is hereby omitted.

Public Comments

There will be a forty-five (45) day public comment period following publication of this notice. Requests for information and public comments regarding the foregoing may be directed to:

Judith I Ratner, Deputy Commissioner and Counsel

NYS Department of Civil Service

Alfred E. Smith Building, Albany, NY 12239

Telephone: (518) 473-2624

E-mail address: [email protected]

Five Year Review of Rules Adopted by the State Commission of Correction in Calendar Years 1998 and 2003 Required to be Reviewed in Calendar Year 2009

As required by Chapter 262 of the Laws of 1996, the following is a list of rules which were adopted by the State Commission of Correction in calendar years 1999 and 2004 which must be reviewed in calendar year 2009. Public comment on the continuation or modification of these rules is invited. Comments should be received by April 1, 2009. Comments may be directed to: Brian Callahan, Office of Counsel, 80 Wolf Road, 4th Floor, Albany, New York 12205-2670.

CMC-17-99-00003 Repeal of section 7009.7; renumbering of section 7009.8 to section 7009.7; and amendment of sections 7009.2, 7009.5(a)(1) and 7009.6(a) of Title 9 NYCRR

Analysis of the need for the rule: The rule is needed to streamline provisions and to ensure that prisoners are provided with nutritionally adequate diets.

Legal basis for the rule: Correction Law section 45(6).

CMC-44-98-00008 Part 7400 of Title 9 NYCRR is renumbered 7202. Chapters III and IV of Title 9 NYCRR are redesignated Chapters IV and V, respectively. Parts 7400-7499 of Title 9 NYCRR are designated Chapter III.

Analysis of the need for the rule: The rule is needed to establish a new Chapter III of Title 9 NYCRR for Minimum Standards and Regulations for Management of Office of Children and Family Services' Secure Facilities for Juvenile Offenders.

Legal basis for the rule: Correction Law section 45(6-b).

CMC-12-99-00013 Amendment of subdivision (a) of section 7032.2 and addition of a new subdivision (c) to section 7006.9 of Title 9 NYCRR.

Analysis of the need for the rule: The rule is needed to authorize local correctional facilities to impose a discuplinary surcharge, not to exceed $5 (subsequently increased to $25), upon inmates found guilty of misbehavior.

Legal basis for the rule: Correction Law section 45(6) and 42(b)(1)

Please be advised that, following a review of actions taken by the Power Authority of the State of New York (the “Authority”) under State Administrative Procedures Act (“SAPA”) in the year 2004, it has been determined that no rules were enacted during 2004 that are subject to the “five-year review” requirements of SAPA § 207. Therefore, the Authority will not be submitting a list of rules subject to the five-year review for publication in the New York State Register.

Five Year Review of Rules Adopted by the Department of State in Calendar Year 2004 Required to Be Reviewed in Calendar Year 2009 and Further Review of Rules Adopted by the Department of State in Calendar Year 1999 Required to Be Re-reviewed in Calendar Year 2009

As required by section 207 of the State Administrative Procedure Act (SAPA), the following is a list of rules which were adopted by the Department of State in calendar year 2004 which must be reviewed in calendar year 2009. The list does not include rules which were adopted as consensus rules [see SAPA section 207(5)], rules which have been repealed, or rules which were subsequently amended. Public comment on the continuation or modification of these rules is invited and will be accepted until March 1, 2009. Comments may be directed to: Nathan A. Hamm, Office of Counsel, Department of State, One Commerce Plaza, 99 Washington Avenue, Suite 1120, Albany, New York 12231-0001.

RULES ADOPTED IN 2004

(1) DOS-31-03-00001 Approval of Real Estate Courses Amended Part 176 of Title 19 NYCRR to update then existing rules relating to the approval of real estate courses and schools offering qualifying education to prospective real estate brokers and salespersons, and to eliminate obsolete portions of then existing rules

Analysis of the need for the rule: The rule is needed so that the New York State Real Estate Board can fulfill its statutory responsibilities found in Article 12-A of the Real Property Law concerning setting state wide standards for real estate courses and schools.

Legal basis for the rule: Real Property Law, sections 442-k(2) and (3)

(2) DOS-34-04-00006 Identification of Buildings Utilizing Truss Type Construction Added Part 1264 to Title 19 NYCRR to establish requirements for signs which identify the existence of truss construction in a building

Analysis of the need for the rule: Subdivision 2 of Executive Law section 382-a directed the State Fire Prevention and Building Code Council to promulgate such rules and regulations as it deemed necessary to put into effect the provisions of subdivision 1 of section 382-a. Subdivision 1 requires that all commercial and industrial buildings and structures which utilize truss type construction be marked with a sign or symbol which will notify fire and other emergency personnel that truss construction exists in the structure. The rule making established specific requirements which must be satisfied to identify buildings and structures which utilize truss type construction.

Legal basis for the rule: Executive Law, section 382-a

(3) DOS-52-03-00002 Inspection of College Buildings for Fire Safety Compliance Added to new Part 500 to Title 19 NYCRR to protect college students and staff from injury and death caused by fires

Analysis of the need for the rule: Chapter 81 of the Laws of 2002 amended Education Law section 807-b and added a new Executive Law section 156-e which directed the Department of State Office of Fire Prevention and Control to conduct fire inspections at least annually at all public and independent college buildings located outside of New York City to ensure compliance with the State Uniform Fire Prevention and Building Code. Part 500 of Title 19 NYCRR was adopted pursuant to statutory authorization found in Education Law section 807-b(3) (which permits the establishment of minimum standards for the content and frequency of inspections) and statutory authorization found in Executive Law section 156-e(2) (which permits the adoption of rules regarding the issuance of violations, compliance with orders, and providing time for compliance, reinspection procedures, and issuance of certificates of conformance).

This rule is in the process of being amended.

Legal basis for the rule: Executive Law sections 91, 156, and 156-e, and Education Law, section 807-b

(4) DOS-52-03-00019 Filing of Security Interests Repealed Parts 143 and 144 and added a new Part 143 to Title 19 NYCRR to implement the provisions of Article 9 of the Uniform Commercial Code concerning security interests

Analysis of the need for the rule: The rule was needed to implement the provisions of Article 9 of the Uniform Commercial Code, as revised by Chapter 84 of the Laws of 2001.

Legal basis for the rule: Uniform Commercial Code, section 9-526-a and Executive Law, section 96-a

(5) DOS-53-02-00018 Fire Safety Standards for Cigarettes to Limit Ignition Risk Added a new Part 429 of Title 19 NYCRR to set fire safety standards for cigarettes which will insure that such cigarette meet performance standards which limit the risk that such cigarettes will ignite upholstered furniture, mattresses, or other household furnishings

Analysis of the need for the rule: The rule was needed because Executive Law Section 156–c(2)(a) required the Department of State Office of Fire Prevention and Control to promulgate fire safety standards for cigarettes sold or offered for sale in New York State.

This rule is in the process of being amended to conform to recent statutory amendments.

Legal basis for the rule: Executive Law, section 156-c(2)(a)

RULES ADOPTED IN 1999

As further required by section 207 of SAPA, the following is a list of rules which were adopted by the Department of State in calendar year 1999 which must be re-reviewed in calendar year 2009. The list does not include rules which were adopted as consensus rules [see SAPA section 207(5)], rules which have been repealed, or rules which were subsequently amended. Public comment on the continuation or modification of these rules is invited and will be accepted until March 1, 2009. Comments may be directed to: Nathan A. Hamm, Office of Counsel, Department of State, One Commerce Plaza, 99 Washington Avenue, Suite 1120, Albany, New York 12231-0001.

(1) DOS-06-99-00001 Cemetery Corporations Amended Parts 200-203 of Title 19 NYCRR to remove outdated terminology and make the regulations easier to comprehend

Analysis of the need for the rule: The rule was needed to clarify, revise, and delete language in rules regulating cemeteries organized under Article 15 of the Not-for-Profit Corporation Law and regulated by the State Cemetery Board. The rule reduced operating costs to cemeteries and was of particular benefit to smaller cemeteries.

Legal basis for the rule: Not-for-Profit Corporation Law, section 1504(c)(1)

(2) DOS-09-99-00005 Natural Hair Styling License Repealed section 162.3 and added a new section 162.3 to Title 19 NYCRR to establish qualifying education requirements for the natural hair styling license

Analysis of the need for the rule: After much study and consideration, the Appearance Enhancement Advisory Committee of the Department of State and the Education Department determined that it was necessary to establish a curriculum which would meet the minimum training needed to provide reasonable assurance to the public that an applicant is reasonably competent to provide natural hair styling services.

Legal basis for the rule: General Business Law, section 404; Chapter 343 of the Laws of 1998, section 3

(3) DOS-17-99-00008 Qualifying Education for the Waxing License Amended sections 160.1(b), 160.2, 160.10(b) and 160.36 and added section 162.5 to Title 19 NYCRR to include the waxing license under the general rules of practice applicable to appearance enhancement practitioners and prescribe the curriculum that must be completed by applicants for the waxing license

Analysis of the need for the rule: After much study and deliberation, the Department of State, the Appearance Enhancement Advisory Committee, and the Education Department determined that the rule would provide a curriculum containing the minimum amount of training that will provide reasonable assurance that an applicant is reasonably competent to provide waxing services to the public. In addition, the rule added the practice of waxing to the general rules of practice applicable to all other appearance enhancement licensees.

Legal basis for the rule: General Business Law, section 404; Chapter 343 of the Laws of 1998, section 3

(4) DOS-28-99-00001 Experience Credit for Mass Appraisals Repealed section 1102.6(b) and added a new section 1102.7 to Title 19 NYCRR to recognize mass appraisal credit for the purposes of licensing and certification

Analysis of the need for the rule: The rule repealed section 1102.6(b) to Title 19 NYCRR which provided that mass appraisals could not be used as qualifying experience for purposes of licensing and certification of real estate appraisers, and added a new section 1102.7 to Title 19 NYCRR which established criteria for granting credit for mass appraisals. This change was necessary because the State Board of Real Estate Appraisal recognized mass appraisals to be a valid form of real estate appraisal practice and therefore concluded that mass appraisal experience should be credited for licensing and certification purposes under Article 6-E of the Executive Law.

Legal basis for the rule: Executive Law, section 160-d(1)(a)

(5) DOS-28-99-00002 Qualifying Education Requirements for State Licensed Real Estate Appraisers Amended section 1103.8 of Title 19 NYCRR to conform New York's qualifying education standards to standards adopted by the Appraisal Qualification Board of the Appraisal Foundation

Analysis of the need for the rule: Executive Law section 160-d(1)(a) provides that the New York State Board of Real Estate Appraisal (State Board) shall adopt rules and regulations to define the type of educational experience, appraisal experience, and equivalent experience that will meet the statutory requirements for certification and licensing of real estate appraisers. The requirements adopted by the State Board may not be less than the minimum criteria established by the Appraisal Qualification Board of the Appraisal Foundation. Acting pursuant to Title XI of the Financial Institutions Reform, Recovery and Enforcement Act of 1989 (12 U.S.C. § § 3310-3351), the Appraisal Qualification Board raised the qualifying education standards for State licensed appraisers from 75 to 90 hours, effective on January 1, 1998. The adoption of this rule ensured that the educational standards for State licensed real estate appraisers would not be less than established federal standards.

This rule is in the process of being amended.

Legal basis for the rule: Executive Law, section160-d(1)(a)

(6) DOS-28-99-00003 Ethics and Standards Courses for State Licensed and Certified Real Estate Appraisers Amended section 1103.10 of Title 19 to allow schools more flexibility in developing ethics and standards courses for State licensed and certified real estate appraisers

Analysis of the need for the rule: Applicants for real estate appraisers licensing and certification are required to complete a 15-hour course related to the ethics and standards of appraisal practice as part of their qualifying education (see sections 1103.8(a) and (c) of Title 19 NYCRR). In addition, licensed and certified real estate appraisers must complete a 15-hour course relating to the ethics and standards of appraisal practice every six years as part of their continuing education. Section 1103.10 of Title 19 NYCRR sets forth the basic requirements for the ethics and standards course. Section 1103.10 was understood to require that schools teach a specific course that gave equal attention to each of the topics set forth in it. However, the State Board intended section 1103.10 to be a general guide and not a rigid curriculum. Therefore, to better express that intent, section 1103.10 was amended to make it clear that schools have flexibility in developing courses for ethics and standards.

This rule is in the process of being amended.

Legal basis for the rule: Executive Law, section 160-d(1)(a) and (c)

(7) DOS-31-99-00003 Exclusive Listing Contracts Amended section 175.24(c) of Title 19 NYCRR to repeal the requirement that a real estate broker provide a new client with a list of the names and addresses of the members of the local multiple listing service

Analysis of the need for the rule: Section 175.24(c) of Title 19 NYCRR was first adopted in 1977. At that time, most multiple listing services (MLSs) required that a seller offer subagency to all members of the MLS. To ensure that a seller could know the names and addresses of the real estate firms to which the offer of subagency was being made, section 175.24 required that the listing broker provide the seller with a list of all of the members of the MLS. By 1999, MLSs no longer required that the seller make an offer of subagency. Instead, the listing broker offered compensation to other member brokers who worked with the listing broker on a cooperative basis. The member of the MLS might be the buyer's brokers or co-operating brokers. In either case, the seller would have received a written agency disclosure form from each broker involved in the transaction, as required by section 443 of the Real Property Law. Consequently, the agency disclosure form supplanted the MLS list as the means by which the seller was notified of the agency status of the brokers involved in the transaction. As a result, the continued requirement that the seller receive the MLS list imposed an unnecessary paperwork requirement and consequent expense on the real estate industry.

Legal basis for the rule: Real Property Law, section 443-k(1)

(8) DOS-51-98-00001 Licensing of Armored Car Carriers Added Part 185 to Title 19 NYCRR to prescribe requirements for armored car carriers concerning records retention, and concerning fingerprinting, notification of name changes, and notification of employment or termination of guards

Analysis of the need for the rule: General Business Law section 89-ccc requires that armored car carriers be licensed before operating in New York State. This rule enabled applicants and licensees to comply with their statutory duties with regard to fingerprinting, retention of business records, notification of change of name, and notification of employment or termination of guards. Without this rule it would have been more likely that confusion and misunderstandings with regard to these matters would have resulted. This ruled helped applicants and licensees avoid the delays and costs that would have resulted from such confusion and misunderstandings.

Legal basis for the rule: General Business Law, section 89-lll

(9) DOS-51-98-00002 Registration of Armored Car Guards Added Part 186 to Title 19 NYCRR to prescribe requirements for armored car guards concerning fingerprinting, a staggered registration schedule, and display of the State issued registration card

Analysis of the need for the rule: The rule was required to clarify how fingerprints of armored car guards are to taken, to prescribe a staggered schedule of registration as required by § 89-uuu of the General Business Law, and to ensure that the identification cards of armored car guards are visible to the public.

Legal basis for the rule: General Business Law, section 89-yyy

(10) DOS-52-98-00001 Qualifying Education Requirements for Certified General Real Estate Appraisers Amended section 1103.9 of Title 19 NYCRR to conform New York's qualifying education standards to standards adopted by the Appraisal Qualification Board of the Appraisal Foundation

Analysis of the need for the rule: If the rule had not been adopted, the Appraisal Subcommittee of the Federal Financial Institutions Examination Council could have withdrawn its recognition of New York's program for certifying real estate appraisers. If this had happened, New York's certified general real estate appraisers would not have been eligible to perform appraisals for federally related real estate transactions, and, as a result, New York financial institutions would not have been able to participate in those transactions where federal law requires the use of a State certified real estate appraiser. Adoption of this rule ensured the continued recognition of New York's licensing and certification program and prevented disruption in New York's markets for real estate financing and the loss of employment opportunities for New York's licensed and certified real estate appraisers. This rule is in the process of being amended.

Legal basis for the rule: Executive Law, section 160-d(1)(a)

(11) DOS-52-98-00002 Qualifying Experience Requirements for Certified Real Estate Appraisers Amended Part 1102 of Title 19 NYCRR to conform New York's qualifying experience standards to standards adopted by the Appraisal Qualification Board of the Appraisal Foundation

Analysis of the need for the rule: If the rule had not been adopted, the Appraisal Subcommittee of the Federal Financial Institutions Examination Council could have withdrawn its recognition of New York's program for certifying real estate appraisers. If this had happened, New York's certified general real estate appraisers would not have been eligible to perform appraisals for federally related real estate transactions, and, as a result, New York financial institutions would not have been able to participate in those transactions where federal law requires the use of a State certified real estate appraiser. Adoption of this rule ensured the continued recognition of New York's licensing and certification program and prevented disruption in New York's markets for real estate financing and the loss of employment opportunities for New York's licensed and certified real estate appraisers.

Legal basis for the rule: Executive Law, section 160-d(1)(a)