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

Amendment of Part 500 of Title 19 NYCRR.

Campus fire safety.

To clarify procedures and add a new fire reporting requirement.

PART 500 CAMPUS FIRE SAFETY

David Treacy, Esq., Department of State, 99 Washington Avenue, Albany, New York 12231, (518) 474-6740

Same as above.

45 days after publication of this notice.

1. Statutory Authority

Chapter 81 of the Laws of 2002 amended Education Law § 807-b and added a new Executive Law § 156-e. These provisions direct the Department of State, Office of Fire Prevention and Control (OFPC) to conduct fire inspections at least annually of all public and independent college buildings outside of the City of New York to ensure compliance with the State Uniform Fire Prevention and Building Code (UFPBC) and its fire safety standards. Education Law § 807-b(3) authorizes OFPC to adopt rules establishing minimum standards for the content and frequency of inspections. Executive Law 156-e(1) provides that OFPC shall annually inspect public and independent college buildings for compliance with the Uniform Fire Prevention and Building Code and other fire prevention and building codes. Executive Law 156-e(2) authorizes OFPC to adopt rules regarding the issuance of violations, compliance with orders, and provides time for compliance, re-inspection procedures, and issuance of certificates of compliance. The statutes also authorize OFPC to take appropriate actions to ensure that violations are promptly remedied.

Executive Law § 91 authorizes the Secretary of State to promulgate rules to regulate and control the exercise of powers of the Department of State and the performance of its officers, agents and employees. Executive Law § 155 provides that the Office of Fire Prevention and Control is created within the Department of State. Executive Law § 156 (19) authorizes OFPC to adopt, amend or rescind rules that may be necessary or convenient to the performance of functions, powers and duties set forth in Article 6-C of the Executive Law.

2. Legislative Objectives

The governing statutes constitute a legislative commitment to provide protection to all college students and staff from the perils of fire. Compliance with the UFPBC and its fire safety standards are viewed as a critical component in providing this protection. To carry out this critical public safety objective, the legislation has recognized that OFPC is best positioned both to assume inspection responsibility and to undertake effective enforcement. This rule fulfills the legislative objectives.

3. Needs and Benefits

This amended rule is necessary to enable OFPC to perform its functions in a more effective manner. This rule reflects the experience and knowledge gained by OFPC since the initial promulgation of rules following the enactment of Chapter 81 of the Laws of 2002. The purpose of this rule is to clarify the procedures and steps that colleges must follow in order to comply with Chapter 81 of the Laws of 2002. The establishment of improved uniform procedures will enhance compliance with the UFPBC by providing colleges with a better framework to be utilized during the inspection process. This amended rule further implements OFPC's goal of improving compliance with the UFPBC. The rule also provides for necessary enforcement mechanisms, including the imposition of fines and, when the violations warrant, the issuance of cease and desist orders, or orders to vacate.

This amended rule establishes that certain circumstances identified during an inspection would allow for a timelier issuance of an order to comply. For instance, under the previous text if an inspection of a student center revealed that a large outdoor grill had been placed inside a student center, OFPC would typically issue a notice of violation because the only other clear remedy immediately available to an inspector would be to take the most unusual step of ordering the building closed until abatement is achieved. If a re-inspection at a later date revealed that the grill still remained inside the center, an inspector would then issue an order to comply. In the meantime, the identified extremely dangerous situation may persist on campus. The amended text would allow OFPC to issue an order to comply in the first instance upon the identification of a severe or serious violation or the cumulative effect of numerous significant violations, thereby allowing OFPC to more effectively perform its functions.

This rule clarifies that any penalty monies that are part of a compromise or settlement must be used by the college to improve fire and life safety activities or equipment. A compromise, under the amended rule, may be requested no later than 60 days after OFPC verification of violation abatement; this provision clarifies the appropriate period to request a compromise and provides a reasonable duration to do so.

Compliance plans are more clearly defined in this rule. The modified text regarding compliance plans has been separated from text related to abatement of violations in order to avoid confusion over the purpose of compliance plans. The text clarifies that a compliance plan is not a form of abatement; a compliance plan lays out the corrective action that a college plans to undertake in order to achieve abatement. This amended rule also combines the text of two previous sections - regarding certificates of compliance and revocation of such certificates - into one section.

This rule changes the name of a section previously titled "Order to vacate" to "Imminent threat to public health and safety" to highlight the standard or condition that may call for a building to be vacated. The text of the section is also modified to clarify OFPC's authority to issue either a "cease and desist order" or an order to close a building, if an order to comply has not been followed and there is a finding of imminent threat to public health or safety. Clarifying OFPC's authority to issue either a cease and desist order or an order to vacate in appropriate circumstances would bring OFPC in line with the industry norm by providing a measure of flexibility that is afforded to similar offices in other states. Some situations more appropriately call for the issuance of a cease and desist order rather than taking the most drastic step of closing a building.

The amended rule also adds a section to require colleges to report to OFPC within 24 hours basic information regarding all fires that take place on college property. This would allow OFPC to promptly evaluate whether damaged buildings may be safely re-occupied and/or to inspect the condition of alternative buildings that may be utilized until repairs are completed.

4. Costs

Currently, regulated parties are required to comply with the provisions of the UFPBC. This amended rule will not change this requirement or add charges attendant to compliance with the UFBC. Colleges will not incur additional costs as a result of amending this rule, which does not impose additional fees related to inspections or re-inspections, or the submission of reports. No charges are associated with the requirement in this rule for colleges to promptly transmit to OFPC information that is similar to the fire safety information which colleges must report annually to the Secretary of the United States Department of Education pursuant to the federal Higher Education Opportunity Act (P.L. 110-135, Laws of 2008 (signed 8/14/08)).

This amended rule will not impose any additional costs to the State, and local governments will incur no costs with the exception of those governments that voluntarily request OFPC delegation of inspection duties. This amended rule does not alter the powers, limitations or process related to OFPC delegation of such duties. A delegation may occur only if a local government specifically requests OFPC to delegate inspection responsibility to the local government. Furthermore, an application to OFPC requesting such delegation will still have to include a resolution by the local governing body indicating that such responsibility is accepted with no expectation of financial reimbursement from the State. Since any local government assumption of responsibility to perform the inspections will remain completely voluntary, any local programmatic costs associated with fulfilling such responsibility will be voluntarily incurred by the local government.

5. Local Government Mandates

This rule places no mandate upon local governments.

6. Paperwork

The majority of paperwork required by this rule will be completed by OFPC, which will continue to produce an inspection report for each building, issue orders and complete all paperwork necessary to obtain compliance with the UFPBC. Reporting requirements for colleges are limited to the reporting of fires on a one-page report, and the voluntary submission of a compliance plan, which would document a college's planned course of action for abating any fire safety violations in compliance with the UFBC. Any paperwork requirements for local governments will result from voluntary participation in the inspection process.

7. Duplication

This proposed regulation does not duplicate any other state or federal law or regulation. Only OFPC or a delegated local government may conduct inspections, and only OFPC will have enforcement authority, pursuant to the law.

8. Alternatives

The OFPC considered alternatives, but no alternatives were sufficient to accomplish the fire safety goals of compliance with the UFPBC. For instance, the Department of State considered utilizing the same reporting requirements found in federal legislation (P.L. 110-135, Laws of 2008). However, based on limitations of the federal reporting process, especially the requirement for colleges to submit reports only on an annual basis and the requirement for colleges to report fire safety information pertaining only to campus housing facilities, this alternative was not adopted. Rather, this rule's reporting requirement would provide OFPC with a real-time report of fires on all property under the jurisdiction of colleges, providing OFPC with the ability to more effectively evaluate conditions related to safe re-occupancy.

The Office of Fire Prevention and Control has reached out to the regulated parties to outline and explain the new and amended requirements of this rule, including SESHA Environmental Health and Safety Association of New York, SUNY Association of Physical Plant Administrators and New York Association of Higher Education Facilities Officers. The only feedback that OFPC received was a question regarding the federal reporting requirement and compliance with this rule. It was explained that this rule would expand upon the federal requirement to report fires in residence halls by also requiring the reporting of fires on all college property.

9. Federal Standards

The federal standard regarding the reporting of fires requires colleges to submit an annual report regarding fires in residence halls to the Secretary of the United States Department of Education (P.L. 110-135, Laws of 2008).

This amended rule would complement the federal standard. This rule is similar to the federal rule in that they both require colleges to transmit reports pertaining to fire safety concerns on college campuses. This rule, however, would require colleges to promptly send reports to OFPC after each incident of fire, rather than on just an annual basis. This rule would also have colleges send OFPC reports on incidents of fire on all property under the jurisdiction of the college, rather than reporting only fires that are related to on-campus housing facilities. These additional state requirements would allow OFPC to more effectively evaluate potential safety concerns on college property and to perform such function in a timely manner.

10. Compliance Schedule

Regulated parties can immediately comply with the rule.

1. Effect of Rule

The only businesses affected by this rule will be the colleges and universities located outside of the City of New York. According to information provided by the State Education Department, there are only 15 colleges that employ fewer than 101 people and qualify as small businesses under SAPA. This amended rule will not affect these colleges, except as noted below, because under existing law they are required to have annual inspections to determine whether they are in compliance with the Uniform Fire Prevention and Building Code (UFPBC).

This amended rule will not impact local governments because a request for statutory delegation of authority to conduct inspections by the local government is voluntary. No requirements are imposed upon local governments.

2. Compliance Requirements

Affected colleges and universities will be required to continue to correct violations identified as a result of the UFPBC inspections. The rule provides colleges with the ability to develop compliance plans to address each violation.

This rule requires colleges to timely transmit to the Office of Fire Prevention and Control (OFPC) information that is similar to the fire safety information which colleges must report to the Secretary of the United States Department of Education pursuant to the federal Higher Education Opportunity Act (P.L. 110-135, Laws of 2008 (signed 8/14/08)). This amended rule would complement the federal standard and allow colleges to easily comply with both reporting standards.

3. Professional Services

In some instances, colleges and universities may choose to utilize the services of a professional engineer or licensed architect in the development of compliance plans. The need for professional assistance historically has been minimal because the violations have involved the maintenance of buildings rather than structure or design.

4. Compliance Costs

No additional costs are associated with college compliance with this amended rule. Currently, regulated parties are required to comply with the provisions of the Uniform Fire Prevention and Building Code (UFPBC). This amended rule will not change this requirement or add charges attendant to compliance with the UFBC. Colleges will not incur additional costs as a result of the amendments proposed by this rule, which does not impose additional fees related to inspections or re-inspections, or the submission of reports. No charges are associated with the requirement in this rule for colleges to promptly transmit to OFPC information that is similar to the fire safety information which colleges must report annually to the Secretary of the United States Department of Education pursuant to the federal Higher Education Opportunity Act (P.L. 110-135, Laws of 2008 (signed 8/14/08)).

This amended rule will not impose any costs on local governments, with the exception of those governments that voluntarily request OFPC delegation of inspection duties. This rule does not alter the powers, limitations or process related to OFPC delegation of such duties. A delegation may occur only if a local government specifically requests OFPC to delegate inspection responsibility to the local government. Furthermore, an application to OFPC requesting such delegation will still have to include a resolution by the local governing body indicating that such responsibility is accepted with no expectation of financial reimbursement from the State. Since any local government assumption of responsibility to perform the inspections will remain completely voluntary, any local programmatic costs associated with fulfilling such responsibility will be voluntarily incurred by the local government.

5. Economic and Technological Feasibility

Economic impact on colleges will be driven solely by the level of current compliance with the UFPBC and its standards. Nothing in this rule increases the current cost requirements placed on colleges, but rather, the rule is designed to assure compliance with the UFPBC. Colleges that properly address noncompliant conditions in a reasonable time frame will not incur any economic impact.

The allowance of compliance plans as outlined in Part 500 permits colleges to incorporate technological changes and advancements when addressing noncompliant items.

6. Minimizing Adverse Impact

This rule will have no adverse economic impact on small business or local governments. The purpose of this rule is to clarify the procedures and steps that colleges must follow in order to comply with the law and the UFPBC.

7. Small Business and Local Government Participation

Representatives of the Commission on Independent Colleges and Universities were members of the Governor's Task Force on Campus Fire Safety. This Task Force recommended to the Governor that OFPC be given the statutory authority to conduct fire safety inspections of colleges and universities.

The Office of Fire Prevention and Control has reached out to the regulated parties to outline and explain the new and amended requirements of this rule, including SESHA Environmental Health and Safety Association of New York, SUNY Association of Physical Plant Administrators and New York Association of Higher Education Facilities Officers. The only feedback received by OFPC was a question regarding the federal reporting requirement and compliance with this rule. It was explained that this rule expands upon the federal reporting requirement to require that all fires on college property, not just in residence halls, be reported.

In addition, the proposed rule will be available for public comment for a period of at least 45 days.

1. Types and estimated numbers of rural areas

Approximately 167 colleges and universities will continue to be inspected under Section 807-b of the Education Law and Section 156-e of the Executive Law. While many of these colleges and universities are in rural areas, the regulations will not negatively impact rural areas.

2. Reporting, recordkeeping and other compliance requirements; and professional services

Reporting requirements for colleges are limited to the reporting of fires on college or university property. Local governments within rural areas have no additional reporting or record keeping requirements under this rule unless they voluntarily choose to conduct required inspections under the delegation portion of the rule. There is no requirement for a rural college or university to obtain professional services. In some instances, colleges and universities may choose to utilize the services of a professional engineer or licensed architect in the development of compliance plans, but the need for professional assistance historically has been minimal based on the nature of the violations being related to maintenance rather than structure or design.

3. Costs

The rule will not impose any additional costs on public and private entities located in rural areas. Currently, regulated parties are required to comply with the provisions of the Uniform Fire Prevention and Building Code (UFPBC). This amended rule will not change this requirement or add charges attendant to compliance with the UFBC. Colleges will not incur additional costs as a result of amendments proposed by this rule, which does not impose additional fees related to inspections or re-inspections, or the submission of reports. No charges are associated with the requirement in this rule for colleges to promptly report to OFPC information that is similar to the fire safety information which colleges must report annually to the Secretary of the United States Department of Education pursuant to the federal Higher Education Opportunity Act (P.L. 110-135, Laws of 2008 (signed 8/14/08)). This amended rule would complement the federal reporting standard and allow colleges to easily comply with both reporting standards.

This amended rule will not impose any costs on local governments, with the exception of those governments that voluntarily request OFPC delegation of inspection duties. This rule does not alter the powers, limitations or process related to OFPC delegation of such duties. A delegation may occur only if a local government specifically requests OFPC to delegate inspection responsibility to the local government. Furthermore, an application to OFPC requesting such delegation will still have to include a resolution by the local governing body indicating that such responsibility is accepted with no expectation of financial reimbursement from the State. Since any local government assumption of responsibility to perform the inspections would remain completely voluntary, any local programmatic costs associated with fulfilling such responsibility will be voluntarily incurred by the local government.

4. Minimizing adverse impact

This rule will have no adverse economic impact on rural areas. The purpose of this rule is to clarify the procedures and steps that colleges must follow in order to comply with the law and the UFPBC. Colleges that properly address noncompliant conditions in a reasonable time frame will not incur any economic impact.

5. Rural area participation

The Office of Fire Prevention and Control (OFPC) has reached out to the regulated parties to outline and explain the new and amended requirements of this rule, including SESHA Environmental Health and Safety Association of New York, SUNY Association of Physical Plant Administrators and New York Association of Higher Education Facilities Officers. The only feedback that OFPC received was a question regarding the federal reporting requirement and compliance with this rule. It was explained that this rule expands upon the federal reporting requirement to require that all fires on college property, not just in residence halls, be reported.

In addition, the proposed rule will be available for public comment for a period of at least 45 days.

It is apparent from the nature and purpose of this rule that it will not have any substantial adverse impact on jobs and employment opportunities. In fact, this rule may result in the employment of health and safety officers by the college or university.