Subdivision (b) of section 1203.2 of Title 19 NYCRR is amended to read as follows:

(b) Every state agency accountable under section 1201.2(d) of this Title for administration and enforcement of the Uniform Code shall provide for such administration and enforcement in accordance with Part 1204 of this Title and section 1203.3(j) of this Part. For the purposes of section 1203.3(j)(5), the period fixed by the code enforcement program of each such state agencty as the interval between periodic condition assessements shall be deemed to be three (3) years.

Paragraph (1) of subdivision (g) of section 1203.3 of Title 19 NYCRR is amended to read as follows:

(g) Operating permits.

(1) Operating permits shall be required for conducting [the activities or using the categories of buildings listed below] any activity listed in subparagraph (i), (ii), or (iii) below or operating any type of building or structure listed in subparagraphs (iv), (v), or (vi) below:

(i) manufacturing, storing or handling hazardous materials in quantities exceeding those listed in tables [2703.1.1(1), 2703.1.1(2), 2703.1.1(3) or 2703.1.1(4), of the Fire Code of New York State (see Part 1225 of this Title)] 5003.1.1(1), 5003.1.1(2), 5003.1.1(3) or 5003.1.1(4) of the 2015 edition of the International Fire Code (a publication currently incorporated by reference in Part 1225 of this Title);

(ii) hazardous processes and activities, including but not limited to, commercial and industrial operations which produce combustible dust as a byproduct, fruit and crop ripening, and waste handling;

(iii) use of pyrotechnic devices in assembly occupancies;

(iv) buildings containing one or more areas of public assembly with an occupant load of 100 persons or more; [and]

(v) parking garages as defined in subdivision (j) of this section; and

[(v)] (vi) buildings whose use or occupancy classification may pose a substantial potential hazard to public safety, as determined by the government or agency charged with or accountable for administration and enforcement of the Uniform Code.

Subdivision (j) of section 1203.3 of Title 19 NYCRR is renumbered subdivision (k) and a new subdivision (j) is added to read as follows:

(1) General. Each authority having jurisdiction shall include in its code enforcement program provisions requiring condition assessments of parking garages. Such provisions shall include, at a minimum, the requirements and features described in this subdivision.

(2) Definitions. For the purposes of this subdivision:

(i) the term “authority having jurisdiction” means the city, town, village, county, State agency, or other governmental unit or agency responsible for administration and enforcement of the Uniform Code with respect to a parking garage;

(ii) the term “condition assessment” means an on-site inspection and evaluation of a parking garage for evidence of deterioration of any structural element or building component of such parking garage, evidence of the existence of any unsafe condition in such parking garage, and evidence indicating that such parking garage is an unsafe structure;

(iii) the term “deterioration” means the weakening, disintegration, corrosion, rust, or decay of any structural element or building component, or any other loss of effectiveness of a structural element or building component;

(iv) the term “parking garage” means any building or structure, or part thereof, in which all or any part of any structural level or levels is used for parking or storage of motor vehicles, excluding:

(a) buildings in which the only level used for parking or storage of motor vehicles is on grade;

(b) an attached or accessory structure providing parking exclusively for a detached one- or two-family dwelling; and

(c) a townhouse unit with attached parking exclusively for such unit;

(v) the term “professional engineer” means an individual who is licensed or otherwise authorized under Article 145 of the Education Law to practice the profession of engineering in the State of New York and who has at least three years of experience performing structural evaluations;

(vi) the term “responsible professional engineer” means the professional engineer who performs a condition assessment, or under whose supervision a condition assessment is performed, and who seals and signs the condition assessment report.

(vii) the term “unsafe condition” includes the conditions identified as “unsafe” in section 304.1.1, section 305.1.1, and section 306.1.1 of the 2015 edition of the International Property Maintenance Code (a publication currently incorporated by reference in Part 1226 of this Title); and

(viii) the term “unsafe structure” means a structure that is so damaged, decayed, dilapidated, or structurally unsafe, or is of such faulty construction or unstable foundation, that partial or complete collapse is possible.

(3) Condition assessments – general requirements. The owner or operator of each parking garage shall cause such parking garage to undergo an initial condition assessment as described in paragraph (4) of this subdivision, periodic condition assessments as described in paragraph (5) of this subdivision, and such additional condition assessments as may be required under paragraph (6) of this subdivision. Each condition assessment shall be conducted by or under the direct supervision of a professional engineer. A written report of each condition assessment shall be prepared, and provided to the authority having jurisdiction, in accordance with the requirements of paragraph (7) of this subdivision. Before performing a condition assessment (other than the initial condition assessment) of a parking garage, the responsible professional engineer for such condition assessment shall review all available previous condition assessment reports for such parking garage.

(4) Initial condition assessment. Each parking garage shall undergo an initial condition assessment as follows:

(i) New parking garages shall undergo an initial condition assessment following construction and prior to a certificate of occupancy or certificate of compliance being issued for the structure,

(ii) Existing parking garages shall undergo an initial condition assessment no later than one year after the effective date of the rule adding this subdivision to 19 NYCRR section 1203.3.

(5) Periodic condition assessments. Following the initial condition assessment of a parking garage, such parking garage shall undergo periodic condition assessments at intervals not to exceed the lesser of:

(i) three (3) years, or

(ii) at such shorter period as may be fixed by the authority having jurisdiction in its code enforcement program.

(6) Additional condition assessments.

(i) If the latest condition assessment report for a parking garage includes a recommendation by the responsible professional engineer that an additional condition assessment of such parking garage, or any portion of such parking garage, be performed before the date by which the next periodic condition assessment would be required under paragraph (5) of this subdivision, the authority having jurisdiction shall require the owner or operator of such parking garage to cause such parking garage (or, if applicable, the portion of such parking garage identified by the responsible professional engineer) to undergo an additional condition assessment no later than the date recommended in such condition assessment report.

(ii) If the authority having jurisdiction becomes aware of any new or increased deterioration which, in the judgment of the authority having jurisdiction, indicates that an additional condition assessment of the entire parking garage, or of the portion of the parking garage affected by such new or increased deterioration, should be performed before the date by which the next periodic condition assessment would be required under paragraph (5) of this subdivision, the authority having jurisdiction shall require the owner or operator of such parking garage to cause such parking garage (or, if applicable, the portion of the parking garage affected by such new or increased deterioration) to undergo an additional condition assessment no later than the date determined by the authority having jurisdiction to be appropriate.

(7) Condition assessment reports. The responsible professional engineer shall prepare, or directly supervise the preparation of, a written report of each condition assessment, and shall submit such condition assessment report to the authority having jurisdiction within such time period as fixed by the authority having jurisdiction. Such condition assessment report shall be sealed and signed by the responsible professional engineer, and shall include:

(i) an evaluation and description of the extent of deterioration and conditions that cause deterioration that could result in an unsafe condition or unsafe structure;

(ii) an evaluation and description of the extent of deterioration and conditions that cause deterioration that, in the opinion of the responsible professional engineer, should be remedied immediately to prevent an unsafe condition or unsafe structure;

(iii) an evaluation and description of the unsafe conditions;

(iv) an evaluation and description of the problems associated with the deterioration, conditions that cause deterioration, and unsafe conditions;

(v) an evaluation and description of the corrective options available, including the recommended timeframe for remedying the deterioration, conditions that cause deterioration, and unsafe conditions;

(vi) an evaluation and description of the risks associated with not addressing the deterioration, conditions that cause deterioration, and unsafe conditions;

(vii) the responsible professional engineer’s recommendation regarding preventative maintenance;

(viii) except in the case of the report of the initial condition assessment, the responsible professional engineer’s attestation that he or she reviewed all previously prepared condition assessment reports available for such parking garage, and considered the information in the previously prepared reports while performing the current condition assessment and while preparing the current report; and

(ix) the responsible professional engineer’s recommendation regarding the time within which the next condition assessment of the parking garage or portion thereof should be performed. In making the recommendation regarding the time within which the next condition assessment of the parking garage or portion thereof should be performed, the responsible professional engineer shall consider the parking garage’s age, maintenance history, structural condition, construction materials, frequency and intensity of use, location, exposure to the elements, and any other factors deemed relevant by the responsible professional engineer in his or her professional judgment.

(8) The authority having jurisdiction shall review each condition assessment report. The authority having jurisdiction shall take such enforcement action or actions in response to the information in such condition assessment report as may be necessary or appropriate to protect the public from the hazards that may result from the conditions described in such report. In particular, but not by way of limitation, the authority having jurisdiction shall, by Order to Remedy or such other means of enforcement as the authority having jurisdiction may deem appropriate, require the owner or operator of the parking garage to repair or otherwise remedy all deterioration, all conditions that cause deterioration, and all unsafe conditions identified in such condition assessment report pursuant to subparagraphs (ii) and (iii) of paragraph (7). All repairs and remedies shall comply with the applicable provisions of the Uniform Code. Neither this paragraph nor the provisions of the code enforcement program of the authority having jurisdiction that implement this paragraph shall limit or impair the right of the authority having jurisdiction to take any other enforcement action, including but not limited to suspension or revocation of a parking garage’s operating permit, as may be necessary or appropriate in response to the information in a condition assessment report.

(9) The authority having jurisdiction shall retain all condition assessment reports for the life of the parking garage. Upon request by a professional engineer who has been engaged to perform a condition assessment of a parking garage, and who provides the authority having jurisdiction with a written statement attesting to the fact that he or she has been so engaged, the authority having jurisdiction shall make the previously prepared condition assessment reports for such parking garage (or copies of such reports) available to such professional engineer. The authority having jurisdiction shall be permitted to require the owner or operator of the subject parking garage to pay all costs and expenses associated with making such previously prepared condition assessment reports (or copies thereof) available to the professional engineer.

(10) Neither this subdivision nor the provisions of the code enforcement program of the authority having jurisdiction that implement this subdivision shall limit or impair the right or the obligation of the authority having jurisdiction:

(i) to perform such construction inspections as are required by the stricter of subdivision (b) of this section or the code enforcement program of the authority having jurisdiction;

(ii) to perform such periodic fire safety and property maintenance inspections as are required by the stricter of subdivision (h) of this section or the code enforcement program of the authority having jurisdiction; and/or

(iii) to take such enforcement action or actions as may be necessary or appropriate to respond to any condition that comes to the attention of the authority having jurisdiction by means of its own inspections or observations, by means of a complaint, or by any other means other than a condition assessment or a report of a condition assessment.

(11) The use of the term “responsible professional engineer” in this subdivision shall not be construed as limiting the professional responsibility or liability of any professional engineer, or of any other licensed professional, who participates in the preparation of a condition assessment without being the responsible professional engineer for such condition assessment.

Newly renumbered (k) of section 1203.3 of Title 19 NYCRR is amended to read as follows:

[(j)](k) Recordkeeping.

A system of records of the features and activities specified in subdivisions (a) through [(i)] (j) of this section and of fees charges and collected, if any, shall be established and maintained.

Section 1204.12 of Title 19 NYCRR is amended by adding a new subdivision (e) to read as follows:

1. STATUTORY AUTHORITY AND LEGISLATIVE OBJECTIVES

19 NYCRR Part 1203 (“Part 1203”) implements Executive Law § 381(1) by establishing minimum standards for administration and enforcement of the State Uniform Fire Prevention and Building Code (“Uniform Code”), and by setting the time for compliance with an order to remedy.

This rule is intended to amend Part 1203 of Title 19 NYCRR by providing that the minimum standards require code enforcement programs for local governments administering and enforcing the Uniform Code to (1) include provisions requiring condition assessments of parking garages and (2) require operating permits for the use of parking garages; and by making certain technical corrections to Part 1203, such as amending Section 1203.3(g), relating to operating permits, by changing references to provisions in the 2010 Fire Code of New York State to references to provisions in the 2015 International Fire Code.¹ This rule will also amend Part 1202, which establishes the procedures applicable in circumstances where the Secretary of State must administer and enforce the Uniform Code in the place and stead of a local government or county, and to amend Part 1204, which establishes the procedures for the administration and enforcement of the Uniform Code by State agencies, to also include provisions requiring condition assessments of parking garages.

2. NEEDS AND BENEFITS

The minimum standards contained in Part 1203 include requirements for fire safety and property maintenance inspections of commercial buildings. Unfortunately, these inspections are not adequate for ensuring the ongoing structural integrity of aging parking garages.

Parking garages are fundamentally different from most other commercial buildings. For example, the structural elements (beams, slabs, columns, etc.) of most parking garages are normally exposed to the elements, whereas in most other buildings they are not. This exposure allows the freeze-thaw cycle to create micro-cracks in the concrete matrix, resulting in a deterioration of the concrete surface known as scaling. Scaling allows deicing salts and chemicals to penetrate the concrete which could deteriorate the reinforcing steel. Steel reinforcement is a critical component of all structural concrete and provides the concrete member with its tensile strength. Absent this strength, an abrupt structural failure can occur. Impact loading due to vehicle traffic places additional stress on deteriorated members which compounds the problem. Without a routine inspection and maintenance program, parking garages eventually succumb to deterioration and, in some instances, collapse.

There have been many parking garage collapses in New York within recent years and many more across the nation. On September 20, 2017, a parking garage in New Rochelle was closed due to a section of the deck collapsing. In February 2017, a two-level parking garage in Bronx collapsed, damaging dozens of cars. On July 16, 2015 in Johnson City, NY, a “large swath of concrete” landed on vehicles located on the bottom level of a garage. A 200-foot by 200-foot section of parking garage in Poughkeepsie collapsed onto the lower level on February 15, 2007. This massive collapse was a result of snow piled on the upper deck following snow removal operations. On April 21, 2006, a helix-shaped parking garage ramp collapsed in Rochester, imposing $18.4 million in repairs. Aside from collapses, many more parking garages close because of concerns of a possible collapse.

The intent of this rule is to prevent these catastrophic collapses, ensure public safety, and extend the useful life of these structures. The proposed rule will require authorities having jurisdiction to amend their local laws to require owners of parking garages to hire a professional engineer with the proper experience to conduct condition assessments of parking garages for conditions that could render them structurally unsafe. An experienced engineer will not only be able to identify the conditions that are causing the deterioration and the remedy, but will also be able to certify that these structures are safe to occupy. This rule will require all deterioration and unsafe conditions as identified by the engineer to be remedied in the manner specified by the engineer, as directed by the authority having jurisdiction.

If adopted, the proposed rule will prove to be very beneficial to New Yorkers. Building occupants will benefit from this rule by ensuring that parking garages are safe to occupy. The public will benefit from this rule through the reduced likelihood that debris from partial or complete collapses will strike them or their property. Small scale deterioration is easier and cheaper to correct than major deterioration, and substantially cheaper to remedy than a collapsed building. This rule will establish a routine condition assessment program that will identify small scale deterioration and cause it to be corrected prior to it compounding into a larger problem. Correcting structural problems early will increase the lifespan of these structures and benefit parking garage owners by increasing the number of years that these buildings will provide a source of income. Correcting small scale deterioration on a regular basis will provide additional benefits to parking garage owners by allowing them to better estimate for these repair costs when budgeting the annual operating cost of the garage. This is in contrast to major deterioration or unsafe conditions which may suddenly and significantly affect a garage’s annual operating cost. Lawsuits associated with collapses will be minimized, which will also prove beneficial to garage owners. It should be noted that many parking garages are owned by local governments and State agencies. Local governments and State agencies will therefore benefit from this rule as much as private owners. The condition assessments and repairs required by this rule will provide a more consistent source of income for engineers, material testing companies, contractors, material suppliers, and equipment suppliers who are regularly engaged in identifying and correcting deterioration.

Many parking garage owners realize the importance of an inspection and maintenance program and currently have such a program in place. Some local governments, such as the City of Syracuse, presently require parking garage structural evaluations. This rule is not expected to substantially affect these entities who are actively pursuing the ongoing maintenance of parking garages.

3. COSTS

The “regulated parties” affected by this rule are the cities, towns, villages, counties, and State agencies that administer and enforce the Uniform Code (the “Authorities Having Jurisdiction” or “AHJs”). Therefore, the costs to “regulated parties” and the costs to the State and local governments can be discussed in a single section in this Regulatory Impact Statement.

Part 1203 currently requires each AHJ to establish a code enforcement program that includes the features described in Part 1203. This rule will require AHJs to include provisions requiring condition assessments of parking garages.

Part 1203 currently requires each code enforcement program to include provisions for recordkeeping. This rule will require AHJs to keep records relating to condition assessments of parking garages.

Each AHJ will be required to review its existing code enforcement program, and if such program does not now include the provisions described in Part 1203, as amended by this rule, such AHJ will be required to amend its program by local law, ordinance, or other appropriate regulation. The Department of State (DOS) anticipates that any AHJ that has established a code enforcement program that included the features described in the current version of Part 1203 will need to make only minor changes to that program to bring it into compliance with Part 1203 and amended by this rule. To assist local governments, DOS will post on its website a model local law establishing a code enforcement program that includes the features required by Part 1203, as amended by this rule.

Each AHJ that has a parking garage in its jurisdiction may incur additional administrative costs resulting from the collection and review of condition assessment reports, taking such enforcement action or actions in response to the information in such reports (if necessary), and maintaining such reports for the life of the parking garage. The proposed rule requires AHJs to require garage owners to obtain an operating permit from the AHJ prior to operating a parking garage, which could result in additional administrative fees. However, requiring an operating permit will not only provide AHJs with the necessary leverage to ensure that the condition assessments are completed, but will also allow AHJs to charge fees for these permits. DOS anticipates that these fees could offset the cost of the additional administrative duties that AHJs may incur as a result of this rule.

While this rule will not apply directly to owners of parking garages, this rule will have an impact on parking garage owners. Specifically, this rule will require AHJs to include provisions requiring periodic condition assessments of parking garages to their code enforcement programs, and owners of parking garages will be required to comply with those provisions. The ultimate cost to parking garage owners will depend on the administrative fees charged by the local government for the operating permit, the fee charged by the licensed professional engineer for the condition assessment, and the cost of ongoing maintenance. As an example, the City of Syracuse currently has an ordinance in place for parking garage inspections. The City charges a $100 registration fee for a parking garage and an annual operating certificate fee of $300. DOS estimates that engineering costs will range from $2,000-$3,000 for a less intensive visual inspection to $5,000-$15,000 for a full structural assessment. This cost will ultimately vary depending upon the size, condition, and type of parking garage. Similar to the additional administrative cost, the engineering fees could also be passed down to parking garage users. Assuming a $300 annual administrative fee (similar to the City of Syracuse) and a $15,000 triennial assessment fee, the average annual cost to be passed down to parking garage users is $5,300. In this example, the cost to parking garage users in a 600-car garage would be: ($5,300/year ÷ 600 cars) = $8.83/year per car, or about $0.74/month per car. Assuming the same average annual fee, those who park in a smaller 200-car garage would experience an increase in their monthly parking fee of: ($5,300/year ÷ 200 cars) × (1 year/12 months) = $2.21/month per car. These fees are for comparison purposes only. It is assumed that an assessment for a smaller garage will generally cost less than that for a larger garage. However, the assessment cost for a larger garage that was better maintained could be less than that for a smaller garage that was never maintained.

DOS contacted numerous garage owners and operators during the development of this rule and determined that many State, local government, and private garage owners currently are having periodic structural evaluations performed absent any State or local requirement. Some of these garages undergo intense annual inspections, whereas the proposed rule requires inspections to not exceed three years or a lesser period as required by the AHJ. The proposed rule may therefore not substantially affect many garage owners that are currently having routine structural evaluations performed; the cost of such evaluations being passed to garage users in the form of operational overhead. Conversely, garages that infrequently undergo or have never undergone structural evaluations may result in a higher operational cost which could be passed, in whole or in part, to garage users.

The cost to repair a garage cannot be estimated since it is a function of the type and extent of repair that is required, the level of use that the garage undergoes, the urgency of the repair, and many other factors. For well-maintained garages that have a structural evaluation and preventative maintenance program in place, this cost is likely to have already been absorbed into the normal operating cost of the garage and passed down to garage users. For unmaintained garages, the initial repair cost will most likely be absorbed by the owner and subsequently passed down to parking garage users through increased parking fees.

It could be argued that this rule will not actually require repairs to parking garages; rather, this rule will require periodic condition assessments intended to point out situations where repairs are necessary. DOS anticipates that by identifying the need to make repairs before that need becomes critical, the overall costs of repairs over the lifespan of the structure will actually be reduced.

4. PAPERWORK

As more fully discussed in Part 3 (“Costs”) of this Regulatory Impact Statement, this rule will require AHJs to collect condition assessment reports, review such reports, taking such enforcement action or actions in response to the information in such reports (if necessary), and maintain such reports for the life of the parking garage. The proposed rule also requires AHJs to require garage owners to obtain an operating permit from the AHJ prior to operating a parking garage.

5. LOCAL GOVERNMENT MANDATES

As more fully discussed in Part 3 (“Costs”) of this Regulatory Impact Statement, this rule will require AHJs to review their code enforcement programs; to amend those programs to include the additional provisions required by this rule; to collect condition assessment reports, review such reports, take such enforcement action or actions in response to the information in such reports (if necessary), and maintain such reports for the life of the parking garage; and to require garage owners to obtain an operating permit from the AHJ prior to operating a parking garage.

6. DUPLICATION

This rule does not duplicate any rule or other legal requirement of the State or Federal government known to DOS.

7. ALTERNATIVES

DOS issued a notice of rule in development to solicit public comments prior to issuing this rulemaking. These comments provided many practical suggestions to modify the draft rule, many of which were incorporated into this rulemaking. Comments that were not incorporated include: requiring annual inspections, deleting the word “rust” from the definition of “deterioration”, and requiring the results of each assessment to be posted. One major alternative to this rulemaking would be to continue to do nothing, which would allow the negligent maintenance of parking garages to continue and cause accelerated deterioration and collapses. For this reason, DOS rejected this alternative.

8. FEDERAL STANDARDS

This rule does not exceed any minimum standards of the Federal government for the same or similar subject areas known to DOS.

9. COMPLIANCE SCHEDULE

DOS notified the “regulated parties” (i.e., cities, towns, villages, counties, and State agencies that administer and enforce the Uniform Code) of its intent to develop and propose this rule by means of a notice that was posted on the DOS website and contained in Building New York, an e-bulletin sent by DOS to local governments and other persons and entities interested in the construction industry. The notice was posted, and issued in the Building New York e-bulletin, prior to the filing of the Notice of Proposed Rule Making for this rule. Cities, towns, villages, counties, and State agencies that administer and enforce the Uniform Code have been able to review their code enforcement programs, and begin to prepare any necessary revisions to those programs, since that time. Therefore, DOS anticipates that the regulated parties will be able to comply with this rule immediately upon its effective date or within a reasonable time after the effective date.

___________

¹ The 2010 Fire Code of New York State was previously incorporated by reference into 19 NYCRR Part 1225. Effective October 3, 2016, Part 1225 was amended to incorporate by reference the 2015 International Fire Code.

1. TYPES AND NUMBER OF SMALL BUSINESSES AND LOCAL GOVERNMENTS TO WHICH THE RULE WILL APPLY:

19 NYCRR Part 1203 (“Part 1203”) implements Executive Law § 381(1) by establishing minimum standards for administration and enforcement of the State Uniform Fire Prevention and Building Code (the “Uniform Code”) and the State Energy Conservation Construction Code (the “Energy Code”).

Executive Law § 381(1) provides that the minimum standards should address several specified issues, including “adequacy of inspections” and “procedures for inspection of certain classes of buildings based upon design, construction, ownership, occupancy or use, including, but not limited to, mobile homes, factory manufactured homes and state-owned buildings.” See Executive Law § 381(1)(d) and (g).

This rule is intended to address Executive Law § 381(1)(d) and (g) by adding new provisions relating to condition assessments of parking garages and operating permits for using parking garages as part of the minimum standards for administration and enforcement of the Uniform Code and Energy Code.

This rule will apply to all local governments (cities, towns, villages, and counties) that administer and enforce the Uniform Code and Energy Code. The Department of State (DOS) estimates that approximately 1,500 local governments currently administer and enforce the Uniform Code and Energy Code.

A small business or local government that constructs a new parking garage or alters an existing parking garage will be required to comply with the Uniform Code and Energy Code, and with the provisions of the code enforcement program of the governmental unit or agency responsible for administration and enforcement of the Uniform Code and Energy Code. All code enforcement programs will be required to include the features described in Part 1203, as amended by this rule.

DOS contacted numerous garage owners and operators during the development of this rule and determined that many State, local government, and private garage owners currently are having periodic structural evaluations performed absent any State or local requirement. Some of these garages undergo intense annual inspections, whereas the proposed rule requires inspections to not exceed three years or a lesser period as required by the AHJ. The proposed rule may therefore not substantially affect many garage owners that are currently having routine structural evaluations performed; the cost of such evaluations being passed to garage users in the form of operational overhead.

Conversely, garages that infrequently undergo or have never undergone structural evaluations may result in a higher operational cost which could be passed, in whole or in part, to garage users. These small businesses and local governments will be most affected by the rule. It is assumed that the cost of compliance will be wrapped into the small business’s or local government’s overhead, and passed down to parking garage users, similar to those businesses and local governments that are currently having periodic structural evaluations performed of their garages.

It should be noted that parking garages are currently required to be maintained in a structurally sound condition. This requirement is found in Sections 304.1.1, 305.1.1, and 306.1.1 of the 2015 edition of the International Property Maintenance Code (a publication currently incorporated by reference in 19 NYCRR Part 1226). The proposed rule is intended to ensure compliance with the Uniform Code.

2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS:

Part 1203 currently requires local governments that administer and enforce the Uniform Code and Energy Code to establish code enforcement programs that include the features described in Part 1203. This rule will require local governments that administer and enforce the Uniform Code and Energy Code to update their code enforcement programs to include the features described in Part 1203, as amended by this rule. A code enforcement program that is in substantial compliance with the current version of Part 1203 should require only minor changes, summarized as follows:

1. Part 1203 currently provides that local governments’ code enforcement programs must require operating permits for certain activities and categories of buildings. This rule will require local governments that administer and enforce the Uniform Code and Energy Code to add provisions to their code enforcement programs that require operating permits for the use of parking garages.

2. Part 1203 currently provides that code enforcement programs must include all of the features set forth in Section 1203.3. This rule will require local governments that administer and enforce the Uniform Code and Energy Code to add provisions to their code enforcement program that require condition assessments of parking garages.

3. Part 1203 currently provides that code enforcement programs must include provisions for recordkeeping. This rule will require local governments that administer and enforce the Uniform Code and Energy Code to keep specific records relating to condition assessments of parking garages.

3. PROFESSIONAL SERVICES:

Local governments that administer and enforce the Uniform Code and Energy Code are currently required to use personnel who have received the training required by 19 NYCRR Part 1208 to perform code enforcement-related services. Those local governments will continue to be required to use personnel who have received such training.

The proposed rule will require parking garage inspections to be performed by a professional engineer who has at least three years of experience performing structural evaluations. All parking garage owners, including local governments and small businesses, will be required to hire such an engineer to perform the evaluations if one is not currently employed by the local government.

4. COMPLIANCE COSTS:

This rule will not substantially affect local governments and small businesses that are currently having routine structural evaluations performed of their garages. Local governments and small businesses that are not having, or infrequently having, structural evaluations performed of their garages will incur a compliance cost which is expected to be passed down to parking garage users.

The cost to parking garage owners, including small businesses and local governments, will depend on the fee charged by the local government for the operating permit, the fee charged by the licensed professional engineer for the condition assessments, and the cost of ongoing maintenance. As an example, the City of Syracuse currently has an ordinance in place for parking garage inspections. The City charges a $100 registration fee for a parking garage and an annual operating certificate fee of $300. DOS estimates that engineering costs will range from $2,000-$3,000 for a less intensive visual inspection to $5,000-$15,000 for a full structural assessment. This cost will ultimately vary depending upon the size, condition, and type of parking garage. The above costs could be passed down to those who pay to park in these structures. Assuming a $300 annual fee and a $15,000 triennial assessment fee, the average annual cost to be passed down to parking garage users is $5,300. In this example, the cost to parking garage users in a 600-car garage would be: ($5,300/year ÷ 600 cars) = $8.83/year per car, or about $0.74/month per car. Assuming the same average annual fee, those who park in a smaller 200-car garage would experience an increase in their monthly parking fee of: ($5,300/year ÷ 200 cars) × (1 year/12 months) = $2.21/month per car. These fees are for comparison purposes only. It is assumed that an assessment for a smaller garage will generally cost less than that for a larger garage. However, the assessment cost for a larger garage that was better maintained could be less than that for a smaller garage that was never maintained.

Local governments that administer and enforce the Uniform Code and Energy Code will incur the initial costs associated with updating their code enforcement programs to include the features described in Part 1203, as amended by this rule. DOS anticipates that these costs will vary based on the degree to which a local government’s existing code enforcement program complies with the current version of Part 1203, as well as the degree by which a local government wishes to exceed the minimum standards established by this rule. A code enforcement program that is in substantial compliance with the current version of Part 1203 should require only minor changes, as summarized in Part 2 (Reporting, Recordkeeping, and other Compliance Requirements) of this Regulatory Flexibility Analysis.

This rule will also add to Part 1203 additional provisions that may increase local governments’ on-going costs of compliance. Part 1203 currently provides that code enforcement programs must include provisions for recordkeeping. This rule will require local governments that administer and enforce the Uniform Code and Energy Code to keep specific records relating to condition assessments of parking garages. Each local government that administers and enforces the Uniform Code and Energy Code and that has a parking garage in its jurisdiction may incur additional administrative costs resulting from the collection and review of condition assessment reports, taking such enforcement action or actions in response to the information in such reports (if necessary), and maintaining such reports for the life of the parking garage. The proposed rule requires local governments to require garage owners to obtain an operating permit from the local government prior to operating a parking garage, which could result in additional administrative fees. However, requiring an operating permit will not only provide local governments with the necessary leverage to ensure that the condition assessments are completed, but will also allow local governments to charge fees for these permits. DOS anticipates that these fees could offset the cost of the additional administrative duties that local governments may incur as a result of this rule.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

Each local government that administers and enforces the Uniform Code and Energy Code is already required by existing Part 1203 to establish a code enforcement program that includes the features described in existing Part 1203. Prior to the filing of the Notice of Proposed Rule Making for this rule, DOS gave notice of its intent to develop and propose this rule by means of a notice in Building New York, an e-bulletin sent by DOS to approximately 10,000 subscribers, including local governments and other persons and entities interested in the construction industry. This provided local governments that administer and enforce the Uniform Code and Energy Code with additional time to review their code enforcement programs and to begin to prepare any necessary revisions to those programs. DOS anticipates that local governments (the regulated parties directly affected by this rule) will be able to comply with this rule immediately upon its effective date or within a reasonable time after the effective date.

DOS believes that it will be economically and technologically feasible for local governments that administer and enforce the Uniform Code and Energy Code to comply with Part 1203, as amended by this rule.

DOS anticipates that it will not be necessary to develop new technology for compliance with Part 1203, as amended by this rule.

6. MINIMIZING ADVERSE IMPACT:

DOS attempted to limit the amendments that will be made to Part 1203 by this rule to those amendments that would be the minimum standards required to implement Executive Law § 381(1)(d) and (g) as related to parking garages.

Approaches such as establishing differing standards or requirements that consider the resources available to small businesses and local governments and/or providing exemptions from coverage by the rule, or by any part thereof, for small businesses and local governments were not considered because doing so would be inconsistent with the provisions of Executive Law § 381(1)(d) and (g).

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

DOS gave small business and local governments an opportunity to participate in this rule making by publishing a notice regarding this rule in Building New York, an electronic news bulletin covering topics related to the Uniform Code and the construction industry which is prepared by DOS and which is currently distributed to approximately 10,000 subscribers, including local governments, design professionals and others involved in all aspects of the construction industry. In response to comments received from local code enforcement officials, organizations, and private companies, the Department of State revised this rule as appropriate.

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS.

19 NYCRR Part 1203 (“Part 1203”) implements Executive Law § 381(1) by establishing minimum standards for administration and enforcement of the State Uniform Fire Prevention and Building Code (the “Uniform Code”) and the State Energy Conservation Construction Code (the “Energy Code”).

Executive Law § 381(1) provides that the minimum standards should address several specified issues, including “adequacy of inspections” and “procedures for inspection of certain classes of buildings based upon design, construction, ownership, occupancy or use, including, but not limited to, mobile homes, factory manufactured homes and state-owned buildings.” See Executive Law § 381(1)(d) and (g).

This rule is intended to address Executive Law § 381(1)(d) and (g) by adding new provisions relating to condition assessments of parking garages and operating permits for using parking garages as part of the minimum standards for administration and enforcement of the Uniform Code and Energy Code.

This rule will apply to all local governments (cities, towns, villages, and counties) and State agencies that administer and enforce the Uniform Code and Energy Code. The Uniform Code applies in all parts of the State except New York City and the Energy Code applies in all parts of the State. Therefore, this rule will apply in all rural areas of the State. However, it is anticipated that this rule will have minimal impact in rural areas in light of the fact that parking garages subject to this rule are scarce in such areas. If there are no parking garages in a jurisdiction, then there will be no impact on such local government.

2. REPORTING, RECORDKEEPING, AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES.

Part 1203 currently requires local governments that administer and enforce the Uniform Code and Energy Code to establish code enforcement programs that include the features described in Part 1203. This rule will require local governments that administer and enforce the Uniform Code and Energy Code to update their code enforcement programs to include the features described in Part 1203, as amended by this rule. A code enforcement program that is in substantial compliance with the current version of Part 1203 should require only minor changes, summarized as follows:

1. Part 1203 currently provides that local governments’ code enforcement programs must require operating permits for certain activities and categories of buildings. This rule will require local governments that administer and enforce the Uniform Code and Energy Code to add provisions to their code enforcement programs that require operating permits for the use of parking garages.

2. Part 1203 currently provides that code enforcement programs must include all of the features set forth in Section 1203.3. This rule will require local governments that administer and enforce the Uniform Code and Energy Code to add provisions to their code enforcement program that require condition assessments of parking garages.

3. Part 1203 currently provides that code enforcement programs must include provisions for recordkeeping. This rule will require local governments that administer and enforce the Uniform Code and Energy Code to keep specific records relating to condition assessments of parking garages.

Local governments that administer and enforce the Uniform Code and Energy Code are currently required to use personnel who have received the training required by 19 NYCRR Part 1208 to perform code enforcement-related services. Those local governments will continue to be required to use personnel who have received such training.

The proposed rule will require parking garage inspections to be performed by a professional engineer who has at least three years of experience performing structural evaluations. All parking garage owners, including local governments and small businesses in rural areas, who own parking garages will be required to hire such an engineer to perform the evaluations if one is not currently employed by the local government.

3. COMPLIANCE COSTS.

Local governments that administer and enforce the Uniform Code and Energy Code will incur the initial costs associated with updating their code enforcement programs to include the features described in Part 1203, as amended by this rule. DOS anticipates that these costs will vary based on the degree to which a local government’s existing code enforcement program complies with the current version of Part 1203, as well as the degree by which a local government wishes to exceed the minimum standards established by this rule. A code enforcement program that is in substantial compliance with the current version of Part 1203 should require only minor changes, as summarized in Part 2 (Reporting, Recordkeeping, and other Compliance Requirements; and Professional Services) of this Rural Area Flexibility Analysis.

This rule will also add to Part 1203 additional provisions that may increase local governments’ on-going costs of compliance, summarized as follows:

Part 1203 currently provides that code enforcement programs must include provisions for recordkeeping. This rule will require local governments that administer and enforce the Uniform Code and Energy Code to keep specific records relating to condition assessments of parking garages.

Each local government that administers and enforces the Uniform Code and Energy Code will be required to review condition assessment reports for parking garages. However, DOS anticipates that local governments will be able to accomplish such increased level of review using current code enforcement staff, at no significant increased cost. In addition, the Executive Law § 381(2) provides that cities, towns, villages, and counties may charge fees to defray the costs of administration and enforcement.

Local governments that own parking garages that are routinely undergoing a structural inspection and maintenance program will not be substantially affected by this rule. Local governments that are not regularly inspecting and maintaining their garages will incur a compliance cost which is expected to be passed down to parking garage users. It is anticipated that this rule will have minimal impact in rural areas in light of the fact that parking garages subject to this rule are scarce in such areas. If there are no parking garages in a jurisdiction, then there will be no impact on such local government.

4. MINIMIZING ADVERSE IMPACT.

DOS attempted to limit the amendments that will be made to Part 1203 by this rule to those amendments that would be the minimum standards required to implement Executive Law § 381(1)(d) and (g) as related to parking garages.

Approaches such as establishing differing standards or requirements that take into account the resources available to rural areas were not considered because doing so would be inconsistent with the provisions of Executive Law § 381(1)(d) and (g).

5. RURAL AREA PARTICIPATION.

The Department of State notified interested parties throughout the State, including interested parties in rural areas, of the proposed adoption of this rule by means of a notice posted on the DOS website and published in Building New York, an electronic news bulletin distributed by the DOS which covers topics related to the Uniform Code, the Energy Code, and the construction industry which is prepared and distributed by the Department of State to approximately 10,000 subscribers, including local governments, design professionals and others involved in all aspects of the construction industry. In response to comments received from local code enforcement officials, organizations, and private companies, the Department of State revised this rule as appropriate.

The Department of State has determined that, given the nature and purpose of this rule, it will not have a substantial adverse impact on jobs and employment opportunities.

The rule will amend Part 1203 of Title 19 NYCRR (“Part 1203”). Part 1203 establishes minimum standards for local governments that administer and enforce the State Uniform Fire Prevention and Building Code (the “Uniform Code”) and the State Energy Conservation Construction Code (the “Energy Code”). Part 1203, as amended by this rule, will require local governments that administer and enforce the Uniform Code and Energy Code to amend their code enforcement programs to include provisions requiring condition assessments of parking garages and operating permits for the use of parking garages. This rule will also amend Part 1202, which establishes the procedures applicable in circumstances where the Secretary of State must administer and enforce the Uniform Code in the place and stead of a local government or county, and to amend Part 1204, which establishes the procedures for the administration and enforcement of the Uniform Code by State agencies, to also include provisions requiring condition assessments of parking garages.

This rule will directly have a positive impact on jobs and employment opportunities for professional engineers licensed under Article 145 of the Education Law who will be performing the condition assessments of parking garages required by code enforcement programs of local governments administering and enforcing the Uniform Code pursuant to the minimum standards set forth in the amended Part 1203 or as required by the amended Part 1202 in circumstances where the Secretary must administer and enforce the Uniform Code in the place and stead of a local government or county. It is also anticipated that this rule will indirectly have a positive impact on jobs and employment opportunities for contractors retained by parking garage owners to remedy or repair any deterioration or unsafe conditions revealed through a condition assessment of a parking garage.

As a consequence, the Department of State concludes that this rule will not have a substantial adverse impact on jobs and employment opportunities but it is anticipated that this rule will have a positive impact on jobs and employment opportunities in New York State.