REGISTE R DEPARTMENT OF STATE - Division of Administrative Rules - New York State Department

 
January 15, 2020                                                              DEPARTMENT OF STATE
Vol. XLII                                                                Division of Administrative Rules
Issue 2

                           NEW YORK STATE

  REGISTER

INSIDE THIS ISSUE:

  D Empire Zones Reform
  D Process for Early Voting
  D Property Tax Levy Limits for School Districts in Relation to Certain Costs Resulting from
    Capital Local Expenditures
Rule Review
Executive Orders
State agencies must specify in each notice which proposes a rule the last date on which they will accept public
comment. Agencies must always accept public comment: for a minimum of 60 days following publication in the
Register of a Notice of Proposed Rule Making, or a Notice of Emergency Adoption and Proposed Rule Making; and
for 45 days after publication of a Notice of Revised Rule Making, or a Notice of Emergency Adoption and Revised
Rule Making in the Register. When a public hearing is required by statute, the hearing cannot be held until 60 days
after publication of the notice, and comments must be accepted for at least 5 days after the last required hearing.
When the public comment period ends on a Saturday, Sunday or legal holiday, agencies must accept comment through
the close of business on the next succeeding workday.

For notices published in this issue:
  – the 60-day period expires on March 15, 2020
  – the 45-day period expires on February 29, 2020
  – the 30-day period expires on February 14, 2020
ANDREW M. CUOMO
                               GOVERNOR

                           ROSSANA ROSADO
                          SECRETARY OF STATE

       NEW YORK STATE DEPARTMENT OF STATE

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NEW YORK STATE

                                   REGISTER
Be a part of the rule making process!
            The public is encouraged to comment on any of the proposed rules appearing in this issue. Comments
    must be made in writing and must be submitted to the agency that is proposing the rule. Address your com-
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    dress in Notices of Proposed Rule Making. This includes Proposed, Emergency Proposed, Revised Proposed
    and Emergency Revised Proposed rule makings.

            To be considered, comments should reach the agency before expiration of the public comment period.
    The law provides for a minimum 60-day public comment period after publication in the Register of every No-
    tice of Proposed Rule Making, and a 45-day public comment period for every Notice of Revised Rule Making.
    If a public hearing is required by statute, public comments are accepted for at least five days after the last such
    hearing. Agencies are also required to specify in each notice the last date on which they will accept public
    comment.

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

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

                                   Administrative Regulations Review Commission
                                                    State Capitol
                                                 Albany, NY 12247
                                      Telephone: (518) 455-5091 or 455-2731
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                                               Telephone: (518) 474-6957
New York State Register                                                            January 15, 2020/Volume XLII, Issue 2

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

Individuals may send public comment via electronic mail to those recipients who provided an e-mail address in Notices
of Proposed Rule Making. This includes Proposed, Emergency Proposed, Revised Proposed and Emergency Revised
Proposed rule makings. Choose pertinent issue of the Register and follow the procedures on the website
(www.dos.ny.gov)

Rule Making Activities
  Alcoholism and Substance Abuse Services, Office of
    1 / Limits on Administrative Expenses and Executive Compensation (A)
  Criminal Justice Services, Division of
    1 / Use of Force (ERP)
  Economic Development, Department of
    4 / Empire Zones Reform (E)
  Education Department
    6 / Notice of expiration
  Elections, State Board of
    7 / Process for Early Voting (E)
    9 / Ballot Accountability Practices (A)
    9 / Combine the 10 Day Post Primary Filing with the July 15th Disclosure Statement (P)
  Long Island Power Authority
   10 / Authority’s Annual Budget, As Reflected in the Rates and Charges in the Tariff for Electric Service
           (A)
   10 / PSEG Long Island Smart Grid Small Generator Interconnection Procedures (‘‘SGIP’’) (A)
   11 / Standard Rates for Pole Attachments of the Authority’s Tariff for Electric Service (A)
  Public Service Commission
   11 / 2020 Electric Emergency Response Plans for Electric Utilities Subject to the Provisions of PSL Sec-
           tion 25-a (P)
   12 / Application of the Earnings Sharing Mechanism Related to a Partial Year Period (P)
  State, Department of
   12 / Enhanced Fair Housing Provisions (P)
  Taxation and Finance, Department of
   14 / Property Tax Levy Limits for School Districts in Relation to Certain Costs Resulting from Capital
           Local Expenditures (EP)
Hearings Scheduled for Proposed Rule Makings / 17
Action Pending Index / 19

Rule Review
   65 / Civil Service, Department of

Securities Offerings
   67 / State Notices

Advertisements for Bidders/Contractors
  69 / Sealed Bids

Miscellaneous Notices/Hearings
   71 / Notice of Abandoned Property Received by the State Comptroller
   71 / Public Notice
Executive Orders
   73 / Executive Order No. 198.1: Continuing the Declaration of Disaster Emergency in The Counties of
           Cayuga, Jefferson, Monroe, Niagara, Orleans, Oswego, St. Lawrence, and Wayne.
   73 / Executive Order No. 200: Declaring an Emergency in Order to Appoint New Jersey and Connecticut
           Police Officers as Railroad Police Officers to Provide Enhanced Security on Commuter Trains,
           Buses, and Ferries.
RULE MAKING
                                         ACTIVITIES
Each rule making is identified by an I.D. No., which consists                 Assessment of Public Comment
of 13 characters. For example, the I.D. No. AAM-01-96-                        The agency received no public comment.
00001-E indicates the following:
AAM        -the abbreviation to identify the adopting agency
01         -the State Register issue number                                            Division of Criminal Justice
96         -the year                                                                             Services
00001      -the Department of State number, assigned upon
            receipt of notice.
E          -Emergency Rule Making—permanent action                                             NOTICE OF EMERGENCY
            not intended (This character could also be: A                                            ADOPTION
            for Adoption; P for Proposed Rule Making; RP                                      AND REVISED RULE MAKING
            for Revised Rule Making; EP for a combined                                        NO HEARING(S) SCHEDULED
            Emergency and Proposed Rule Making; EA for
            an Emergency Rule Making that is permanent                        Use of Force
            and does not expire 90 days after filing.)                        I.D. No. CJS-30-19-00010-ERP
Italics contained in text denote new material. Brackets                       Filing No. 1176
indicate material to be deleted.                                              Filing Date: 2019-12-30
                                                                              Effective Date: 2020-01-01

                                                                              PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
                                                                              cedure Act, NOTICE is hereby given of the following action:
           Office of Alcoholism and                                           Action Taken: Addition of Part 6058 to Title 9 NYCRR.
                                                                              Statutory authority: Executive Law, sections 837(13) and 837-t
           Substance Abuse Services                                           Finding of necessity for emergency rule: Preservation of public safety
                                                                              and general welfare.
                                                                              Specific reasons underlying the finding of necessity: At the forefront of
                    NOTICE OF ADOPTION                                        the national discussion involving policing in America is law enforcement’s
                                                                              use of force, and the lack of statistical data to analyze use of force
Limits on Administrative Expenses and Executive Compensation                  incidents.
I.D. No. ASA-44-19-00002-A                                                       The proposed rule sets forth reporting and recordkeeping procedures,
                                                                              regarding use of force pursuant to section 837-t of the Executive Law, to
Filing No. 1175                                                               be followed by the chief of every police department, each county sheriff,
Filing Date: 2019-12-31                                                       and the Superintendent of State Police which employs police officers or
Effective Date: 2020-01-15                                                    peace officers, and by the Division of Criminal Justice Services (Division).
                                                                              The proposed regulations require such employers of police and peace of-
                                                                              ficers to report, to the Division, any instance or occurrence where a police
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                   or peace officer employs use of force. In addition, on an annual basis, the
cedure Act, NOTICE is hereby given of the following action:                   Commissioner of the Division is required to conspicuously publish on the
Action taken: Amendment of Part 812 of Title 14 NYCRR.                        Division‘s website a comprehensive report including the use of force in-
Statutory authority: Mental Hygiene Law, sections 19.07(e), 19.09(b),         formation received.
19.40, 25.09, 32.01, 32.02, 32.07(a), 43.02; Not-for-Profit Corporation          Repeated and highly publicized incidents of police use of force, and
Law, section 508                                                              lack of data about these incidents, leaves an impression that there is a lack
                                                                              of accountability by police officers in these cases. The proposed rule
Subject: Limits on administrative expenses and executive compensation.        provides a mechanism to produce a comprehensive view of use of force
Purpose: To define limits on administrative expenses and executive            incidents reported, including the circumstances, subjects, and officers
compensation in accordance with State law and Executive Order 38.             involved in such incidents. This data can subsequently assist with improv-
Text or summary was published in the October 30, 2019 issue of the Reg-       ing policies and procedures regarding use of force, providing better
ister, I.D. No. ASA-44-19-00002-P.                                            analyses of reported incidents, and increasing public awareness. This is
Final rule as compared with last published rule: No changes.                  necessary for the preservation of public safety and the general welfare of
                                                                              people of the State of New York, as it will foster better relations between
Text of rule and any required statements and analyses may be obtained         police and the communities they serve.
from: Trishia Allen, NYS OASAS, 1450 Western Avenue, Albany, NY                  On the other hand, the failure to promulgate this rule on an emergency
12203, (518) 485-2312, email: Trishia.Allen@oasas.ny.gov                      basis will undermine public safety, as the use of force by police, especially
Initial Review of Rule                                                        if excessive and unchecked, is unsafe for the community, and detrimental
As a rule that requires a RFA, RAFA or JIS, this rule will be initially       to its general welfare. For that reason, it would, in this case, be contrary to
reviewed in the calendar year 2022, which is no later than the 3rd year af-   public interest to adhere to the normal requirements of the regulation and
ter the year in which this rule is being adopted.                             rule proposal process.

                                                                                                                                                           1
Rule Making Activities                                                                                      NYS Register/January 15, 2020
Subject: Use of Force.                                                             (b) Such reports shall not identify the names of the individuals involved,
Purpose: Set forth use of force reporting and recordkeeping procedures.         but for each use of force event reported, shall list the following in accor-
                                                                                dance with section 837-t of the executive law:
Text of emergency/revised rule: Part 6058 - USE OF FORCE DATA COL-                    (1) the type of use of force;
LECTION, ANALYSIS AND REPORTING                                                       (2) the date of the event;
   Section 6058.1. Purpose.                                                           (3) the location of the event disaggregated by county and law enforce-
   At the forefront of the national discussion involving policing in America    ment agencies involved;
is law enforcement use of force, and the lack of statistical data to analyze          (4) the town or city where the event occurred;
use of force incidents.                                                               (5) any additional relevant location information;
   The purpose of this Part is to set forth reporting and recordkeeping               (6) a description of the circumstances of the event;
procedures, regarding use force pursuant to section 837-t of the Executive            (7) the race, sex, ethnicity, age (or, if unknown, approximate age) of
Law, to be followed by the chief of every police department, each county        all persons engaging in the use of force; and
sheriff, and the superintendent of state police which employs police of-              (8) the race, sex, ethnicity, age (or, if unknown, approximate age) of
ficers or peace officers, and by the Division of Criminal Justice Services.     all persons suffering an injury from the use of force.
   Section 6058.2. Definitions.                                                 This notice is intended to serve as both a notice of emergency adoption
   As used in this Part, the following terms shall have the following           and a notice of revised rule making. The notice of proposed rule making
meanings:                                                                       was published in the State Register on July 24, 2019, I.D. No. CJS-30-19-
   (a) Division means the Division of Criminal Justice Services.                00010-EP. The emergency rule will expire February 27, 2020.
   (b) Commissioner means the Commissioner of the Division of Criminal          Emergency rule compared with proposed rule: Substantial revisions were
Justice Services, or his or her designee.                                       made in section 6058.2.
   (c) FBI means the Federal Bureau of Investigation.                           Text of rule and any required statements and analyses may be obtained
   (d) Employer means the chief of every police department, each county         from: Natasha Harvin-Locklear, Esq., Division of Criminal Justice Ser-
sheriff, and the superintendent of state police which employs police of-        vices, 80 S. Swan St., Albany, NY 12210, (518) 457-8413, email:
ficers or peace officers.                                                       dcjslegalrulemaking@dcjs.ny.gov
   (e) Police officer means a person designated as such in section 1.20(34)
of the Criminal Procedure Law.                                                  Data, views or arguments may be submitted to: Same as above.
   (f) Peace officer means a person designated as such in section 2.10 of       Public comment will be received until: 45 days after publication of this
the Criminal Procedure Law.                                                     notice.
   (g) Use of force means when a police officer or peace officer does the       Revised Regulatory Impact Statement
following:                                                                         1. Statutory authority: The authority for the promulgation of these
      (1) displays a chemical agent by pointing a chemical agent at a           regulations is contained in Executive Law § 837-t and Executive Law
subject; or                                                                     § 837(13).
      (2) uses/deploys a chemical agent by operating the chemical agent            Executive Law § 837-t sets forth use of force reporting procedures to be
against a person in a manner capable of causing physical injury; or             followed by the chief of every police department, each county sheriff, and
      (3) brandishes/uses/discharges a firearm by operating a firearm           the Superintendent of State Police which employs police officers or peace
against a person in a manner capable of causing physical injury; or             officers, and by the Division of Criminal Justice Services (Division).
      (4) brandishes/uses/deploys an impact weapon or electronic control           Executive Law § 837(13) authorizes the Division to adopt, amend or re-
weapon by operating an impact weapon or electronic control weapon               scind regulations “as may be necessary or convenient to the performance
against a person in a manner capable of causing physical injury; or             of the functions, powers and duties of the [D]ivision.”
      (5) uses a chokehold or similar restraint, which is any application of       2. Legislative objectives: Chapter 55 of the Laws of 2019 added Execu-
sustained pressure to the throat or windpipe of a person in a manner that       tive Law § 837-t. Pursuant to that section, the chief of every police depart-
may hinder breathing or reduce intake of air; or                                ment, each county sheriff, and the Superintendent of State Police is
      (6) engages in conduct which results in the death or serious bodily       required to report, to the Division, any instance or occurrence in which
injury of another person.                                                       one of its police officers or peace officers employs use of force. The regula-
   (h) Serious bodily injury means a bodily injury that creates or causes a     tions clarify the statute by defining use of force as when a police officer or
substantial risk of death, unconsciousness, serious and protracted              peace officer does the following:
disfigurement, or protracted loss or impairment of the function of a bodily        (1) displays a chemical agent by pointing a chemical agent at a subject;
member, organ or mental faculty.                                                or
   Section 6058.3. Employer Reporting Requirements.                                (2) uses/deploys a chemical agent by operating the chemical agent
   (a) Each employer shall, in the form and manner set forth in section         against a person in a manner capable of causing physical injury; or
6058.4 of this Part, submit or cause to be submitted any instance or occur-        (3) brandishes/uses/discharges a firearm by operating a firearm against
rence where a police or peace officer employed by it employs use of force.      a person in a manner capable of causing physical injury; or
   (b) Each employer shall, in the form and manner set forth in section            (4) brandishes/uses/deploys an impact weapon or electronic control
6058.4 of this Part, with respect to each use of force event reported, submit   weapon by operating an impact weapon or electronic control weapon
or cause to be submitted the following:                                         against a person in a manner capable of causing physical injury; or
      (1) the type of use of force;                                                (5) uses a chokehold or similar restraint, which is any application of
      (2) the date of the event;                                                sustained pressure to the throat or windpipe of a person in a manner that
      (3) village, town, or city, and county location of the event;             may hinder breathing or reduce intake of air; or
      (4) the law enforcement agencies involved;                                   (6) engages in conduct which results in the death or serious bodily injury
      (5) a description of the circumstances of the event;                      of another person. Serious bodily injury means a bodily injury that creates
      (6) the race, sex, ethnicity, and age (or, if unknown, approximate age)   or causes a substantial risk of death, unconsciousness, serious and
of all persons engaging in the use of force; and                                protracted disfigurement, or protracted loss or impairment of the function
      (7) the race, sex, ethnicity, and age (or, if unknown, approximate age)   of a bodily member, organ or mental faculty.
of all persons suffering an injury from the use of force.                          In addition, on an annual basis, the Commissioner of the Division is
   (c) Each employer shall, in the form and manner set forth in section         required to conspicuously publish on the Division‘s website a comprehen-
6058.4 of this Part, submit or cause to be submitted any additional infor-      sive report including the use of force information received, such as:
mation the commissioner may require the employer to report, including,             (a) the type of use of force;
but not limited to, use of force events and incident information, subject in-      (b) the date of the event;
formation, and officer information related to each event as required by the        (c) the location of the event disaggregated by county and law enforce-
FBI in coordination with the FBI’s Uniform Crime Reporting (”UCR”)              ment agencies involved;
Program.                                                                           (d) the town or city where the event occurred;
   Section 6058.4. Employer Reporting Form.                                        (e) any additional relevant location information;
   Each employer shall submit all information required to be reported in           (f) a description of the circumstances of the event;
accordance with section 6058.3 of this Part to the division in the form and        (g) the race, sex, ethnicity, age (or, if unknown, approximate age) of all
manner as prescribed by the division.                                           persons engaging in the use of force; and
   Section 6058.5. Division Reporting Requirements.                                (h) the race, sex, ethnicity, age (or, if unknown, approximate age) of all
   (a) On an annual basis, the commissioner shall conspicuously publish         persons suffering an injury from such use of force.
on the division’s website a comprehensive report including the use of force        3. Needs and benefits: At the forefront of the national discussion involv-
information received under section 6058.3 of this Part during the preced-       ing policing in America is law enforcement’s use of force, and the lack of
ing year.                                                                       statistical data to analyze use of force incidents.

2
NYS Register/January 15, 2020                                                                                            Rule Making Activities
   The proposed rule sets forth reporting and recordkeeping procedures,         sustained pressure to the throat or windpipe of a person in a manner that
regarding use of force pursuant to section 837-t of the Executive Law, to       may hinder breathing or reduce intake of air; or
be followed by the chief of every police department, each county sheriff,          (6) engages in conduct which results in the death or serious bodily injury
and the Superintendent of State Police which employs police officers or         of another person. Serious bodily injury means a bodily injury that creates
peace officers, and by the Division. The proposed regulations require such      or causes a substantial risk of death, unconsciousness, serious and
employers of police and peace officers to report, to the Division, any          protracted disfigurement, or protracted loss or impairment of the function
instance or occurrence where a police or peace officer employs use of           of a bodily member, organ or mental faculty.
force. In addition, on an annual basis, the Commissioner of the Division is        In addition, on an annual basis, the Commissioner of the Division is
required to conspicuously publish on the Division‘s website a comprehen-        required to conspicuously publish on the Division‘s website a comprehen-
sive report including the use of force information received.                    sive report including the use of force information received, such as:
   Repeated and highly publicized incidents of police use of force, and            (a) the type of use of force;
lack of data about these incidents, leaves an impression that there is a lack      (b) the date of the event;
of accountability by police officers in these cases. The proposed rule             (c) the location of the event disaggregated by county and law enforce-
provides a mechanism to produce a comprehensive view of use of force            ment agencies involved;
incidents reported, including the circumstances, subjects, and officers            (d) the town or city where the event occurred;
involved in such incidents. This data can subsequently assist with improv-         (e) any additional relevant location information;
ing policies and procedures regarding use of force, providing better               (f) a description of the circumstances of the event;
analyses of reported incidents, and increasing public awareness. This is           (g) the race, sex, ethnicity, age (or, if unknown, approximate age) of all
necessary for the preservation of public safety and the general welfare of      persons engaging in the use of force; and
people of the State of New York, as it will foster better relations between        (h) the race, sex, ethnicity, age (or, if unknown, approximate age) of all
police and the communities they serve.                                          persons suffering an injury from the use of force.
   4. Costs: No funds were appropriated in the Budget to offset any costs          3. Professional services: Professional printing and/or IT services will be
to regulated parties, the agency, or State and local governments for the        needed to comply with the proposed rule.
implementation of and continuing compliance with the rule. However, the            4. Compliance costs: No funds were appropriated in the Budget to offset
costs (and potential savings) are undetermined, but are expected to include:    any costs to regulated parties, the agency, or State and local governments
   D the training of police officers and peace officers on the new use of       for the implementation of and continuing compliance with the rule.
force reporting requirements;                                                   However, the costs (and potential savings) are undetermined, but are
   D the creation/modification of use of force reporting forms and/or           expected to include:
systems;                                                                           D the training of police officers and peace officers on the new use of
   D professional services to create/update use of force forms and/or           force reporting requirements;
systems;                                                                           D the creation/modification of use of force reporting forms and/or
   D professional services to update websites, and website hosting and          systems;
maintenance fees;                                                                  D professional services to create/update use of force forms and/or
   D the use of existing resources; and                                         systems;
   D the fact that most, if not all, of the information that must be reported      D professional services to update websites, and website hosting and
is already gathered or reported for other purposes.                             maintenance fees;
   5. Local government mandates: The proposed regulations will require             D the use of existing resources; and
employers of police and peace officers to report, to the Division, any             D the fact that most, if not all, of the information that must be reported
instance or occurrence where a police or peace officer employed by it           is already gathered or reported for other purposes.
employs use of force.                                                              5. Economic and technological feasibility: No economic or technologi-
   6. Paperwork: The employers may have paperwork within its agency.            cal impediments to compliance have been identified.
However, each employer shall submit all information required to be                 6. Minimizing adverse impact: The mandates on local governments are
reported to the Division electronically.                                        minimal as law enforcement agencies already submit crime reports to the
   7. Duplication: The FBI established the National Use of Force Data           Division. Each employer is required to submit all information to the Divi-
Collection. However, participation by law enforcement is voluntary.             sion electronically.
   8. Alternatives: There are no alternatives. The proposed rule is pursuant       7. Small business and local government participation: Use of force has
to legislation.                                                                 long been a topic of discussion. A Use of Force Model Policy that refer-
   9. Federal standards: The National Use of Force Data Collection              ences the new reporting requirements of Executive Law § 837-t, which are
includes three types of events:                                                 codified in the proposed regulations, was discussed and approved by the
   (a) when use of force by a law enforcement officer causes a fatality;        Municipal Police Training Council (Council), which consists of members
   (b) when use of force by a law enforcement officer causes serious bodily     who are sheriffs, chiefs of police or commissioners of police, and the Com-
injury; and                                                                     missioner of New York City. In addition, input regarding the use of force
   (c) in the absence of either death or serious bodily injury, when a law      definitions was provided by a panel of law enforcement representatives.
enforcement officer discharges a firearm at or in the direction of a person.    Such definitions were subsequently endorsed by the Council. The proposal
   The National Use of Force Data Collection also includes extensive            does not apply to small businesses.
incident information, subject information, and officer information related      Revised Rural Area Flexibility Analysis
to each event.                                                                     1. Types and estimated numbers of rural areas: The rule applies to every
   10. Compliance schedule: Regulated parties are expected to be able to        police department and sheriff’s office in New York State, and the New
achieve compliance with the proposed rule as soon as it is adopted.             York State Police. Many law enforcement agencies are located in rural
Revised Regulatory Flexibility Analysis                                         areas.
   1. Effect of rule: The proposed rule applies to every police department         2. Reporting, recordkeeping and other compliance requirements; and
and sheriff’s office in New York State, and the New York State Police. The      professional services: The proposed rule implements Executive Law
proposal does not apply to small businesses.                                    § 837-t, which requires the chief of every police department, each county
   2. Compliance requirements: The proposed rule implements Executive           sheriff, and the Superintendent of State Police to report, to the Division of
Law § 837-t, which requires the chief of every police department, each          Criminal Justice Services (Division), any instance or occurrence in which
county sheriff, and the Superintendent of State Police to report, to the        one of its police officers or peace officers employs use of force. The regula-
Division of Criminal Justice Services (Division), any instance or occur-        tions clarify the statute by defining use of force as when a police officer or
rence in which one of its police officers or peace officers employs use of      peace officer does the following:
force. The regulations clarify the statute by defining use of force as when a      (1) displays a chemical agent by pointing a chemical agent at a subject;
police officer or peace officer does the following:                             or
   (1) displays a chemical agent by pointing a chemical agent at a subject;        (2) uses/deploys a chemical agent by operating the chemical agent
or                                                                              against a person in a manner capable of causing physical injury; or
   (2) uses/deploys a chemical agent by operating the chemical agent               (3) brandishes/uses/discharges a firearm by operating a firearm against
against a person in a manner capable of causing physical injury; or             a person in a manner capable of causing physical injury; or
   (3) brandishes/uses/discharges a firearm by operating a firearm against         (4) brandishes/uses/deploys an impact weapon or electronic control
a person in a manner capable of causing physical injury; or                     weapon by operating an impact weapon or electronic control weapon
   (4) brandishes/uses/deploys an impact weapon or electronic control           against a person in a manner capable of causing physical injury; or
weapon by operating an impact weapon or electronic control weapon                  (5) uses a chokehold or similar restraint, which is any application of
against a person in a manner capable of causing physical injury; or             sustained pressure to the throat or windpipe of a person in a manner that
   (5) uses a chokehold or similar restraint, which is any application of       may hinder breathing or reduce intake of air; or

                                                                                                                                                            3
Rule Making Activities                                                                                     NYS Register/January 15, 2020
   (6) engages in conduct which results in the death or serious bodily injury
of another person. Serious bodily injury means a bodily injury that creates
or causes a substantial risk of death, unconsciousness, serious and                         Department of Economic
protracted disfigurement, or protracted loss or impairment of the function
of a bodily member, organ or mental faculty.
                                                                                                 Development
   In addition, on an annual basis, the Commissioner of the Division is
required to conspicuously publish on the Division‘s website a comprehen-                                    EMERGENCY
sive report including the use of force information received, such as:
                                                                                                           RULE MAKING
   (a) the type of use of force;
    (b) the date of the event;                                                  Empire Zones Reform
  (c) the location of the event disaggregated by county and law enforce-        I.D. No. EDV-02-20-00004-E
ment agencies involved;                                                         Filing No. 1171
    (d) the town or city where the event occurred;                              Filing Date: 2019-12-31
    (e) any additional relevant location information;                           Effective Date: 2019-12-31
    (f) a description of the circumstances of the event;
                                                                                PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
  (g) the race, sex, ethnicity, age (or, if unknown, approximate age) of all    cedure Act, NOTICE is hereby given of the following action:
persons engaging in the use of force; and                                       Action taken: Amendment of Parts 10 and 11; renumbering and amend-
  (h) the race, sex, ethnicity, age (or, if unknown, approximate age) of all    ment of Parts 12 through 14 to Parts 13, 15, 16; addition of new Parts 12
persons suffering an injury from the use of force.                              and 14 to Title 5 NYCRR.
   Each employer is required to submit all information as part of the           Statutory authority: General Municipal Law, art. 18-B, section 959; L.
employer’s monthly crime reports to the Division. Thus, the mandates on         2000, ch. 63; L. 2005, ch. 63; L. 2009, ch. 57
local governments are minimal as law enforcement agencies already report        Finding of necessity for emergency rule: Preservation of general welfare.
incident data to the Division.                                                  Specific reasons underlying the finding of necessity: Regulatory action is
                                                                                needed immediately to implement the statutory changes contained in
   Professional printing and/or IT services will be needed to comply with       Chapter 57 of the Laws of 2009. The emergency rule also clarifies the
the proposed rule.                                                              administrative procedures of the program, improves efficiency and helps
   3. Costs: No funds were appropriated in the Budget to offset any costs       make it more cost-effective and accountable to the State’s taxpayers,
to regulated parties, the agency, or State and local governments for the        particularly in light of New York’s current fiscal climate. It bears noting
implementation of and continuing compliance with the rule. However, the         that General Municipal Law section 959(a), as amended by Chapter 57 of
costs (and potential savings) are undetermined, but are expected to include:    the Laws of 2009, expressly authorizes the Commissioner of Economic
                                                                                Development to adopt emergency regulations to govern the program.
   D the training of police officers and peace officers on the new use of       Subject: Empire Zones reform.
force reporting requirements;                                                   Purpose: Allow Department to continue implementing Zones reforms and
  D the creation/modification of use of force reporting forms and/or            adopt changes that would enhance program’s strategic focus.
systems;                                                                        Substance of emergency rule: The emergency rule is the result of changes
  D professional services to create/update use of force forms and/or            to Article 18-B of the General Municipal Law pursuant to Chapter 63 of
systems;                                                                        the Laws of 2000, Chapter 63 of the Laws of 2005, and Chapter 57 of the
                                                                                Laws of 2009. These laws, which authorize the empire zones program,
  D professional services to update websites, and website hosting and           were changed to make the program more effective and less costly through
maintenance fees;                                                               higher standards for entry into the program and for continued eligibility to
                                                                                remain in the program. Existing regulations fail to address these require-
    D the use of existing resources; and                                        ments and the existing regulations contain several outdated references.
   D the fact that most, if not all, of the information that must be reported   The emergency rule will correct these items.
is already gathered or reported for other purposes.                                The rule contained in 5 NYCRR Parts 10 through 14 (now Parts 10-16
                                                                                as amended), which governs the empire zones program, is amended as
   4. Minimizing adverse impact: The mandates on local governments are          follows:
minimal as law enforcement agencies already submit crime reports to the            1. The emergency rule, tracking the requirements of Chapter 63 of the
Division. Each employer is required to submit all information to the Divi-      Laws of 2005, requires placement of zone acreage into “distinct and sepa-
sion electronically.                                                            rate contiguous areas.”
   5. Rural area participation: Use of force has long been a topic of              2. The emergency rule updates several outdated references, including:
discussion. A Use of Force Model Policy that references the new reporting       the name change of the program from Economic Development Zones to
                                                                                Empire Zones, the replacement of Standard Industrial Codes with the
requirements of Executive Law § 837-t, which are codified in the proposed       North American Industrial Codes, the renaming of census-tract zones as
regulations, was discussed and approved by the Municipal Police Training        investment zones, the renaming of county-created zones as development
Council (Council), which consists of members who are sheriffs, chiefs of        zones, and the replacement of the Job Training Partnership Act (and private
police or commissioners of police, and the Commissioner of New York             industry councils) with the Workforce Investment Act (and local workforce
City. In addition, input regarding the use of force definitions was provided    investment boards).
by a panel of law enforcement representatives. Such definitions were               3. The emergency rule adds the statutory definition of “cost-benefit
subsequently endorsed by the Council.                                           analysis” and provides for its use and applicability.
                                                                                   4. The emergency rule also adds several other definitions (such as ap-
Revised Job Impact Statement                                                    plicant municipality, chief executive, concurring municipality, empire
   A Job Impact Statement is not being submitted with this Notice of Emer-      zone capital tax credits or zone capital tax credits, clean energy research
gency Adoption and Revised Rule Making because it is evident from the           and development enterprise, change of ownership, benefit-cost ratio,
subject matter of the regulation that it will have no adverse impact on jobs    capital investments, single business enterprise and regionally significant
or employment opportunities.                                                    project) and conforms several existing regulatory definitions to statutory
                                                                                definitions, including zone equivalent areas, women-owned business
  The proposed rule merely sets forth use of force reporting procedures to      enterprise, minority-owned business enterprise, qualified investment proj-
be followed by the chief of every police department, each county sheriff,       ect, zone development plans, and significant capital investment projects.
and the Superintendent of State Police which employs police officers or         The emergency rule also clarifies regionally significant project eligibility.
peace officers, and by the Division of Criminal Justice Services.               Additionally, the emergency rule makes reference to the following tax
                                                                                credits and exemptions: the Qualified Empire Zone Enterprise (“QEZE”)
Assessment of Public Comment                                                    Real Property Tax Credit, QEZE Tax Reduction Credit, and the QEZE
The agency received no public comment.                                          Sales and Use Tax Exemption. The emergency rule also reflects the

4
NYS Register/January 15, 2020                                                                                              Rule Making Activities
eligibility of agricultural cooperatives for Empire Zone tax credits and the      Board. The emergency rule also provides that the Commissioner may
QEZE Real Property Tax Credit.                                                    revoke the certification of a firm upon a finding of any one of the other
   5. The emergency rule requires additional statements to be included in         criteria for revocation of certification set forth in the rule.
an application for empire zone designation, including (i) a statement from           14. The emergency rule adds a new Part 12 implementing record-
the applicant and local economic development entities pertaining to the           keeping requirements. Any firm choosing to participate in the empire zones
integration and cooperation of resources and services for the purpose of          program must maintain and have available, for a period of six years, all in-
providing support for the zone administrator, and (ii) a statement from the       formation related to the application and business annual reports.
applicant that there is no viable alternative area available that has existing       15. The emergency rule clarifies the statutory requirement from Chapter
public sewer or water infrastructure other than the proposed zone.                63 of the Laws of 2005 that development zones (formerly county zones)
   6. The emergency rule amends the existing rule in a manner that allows         create up to three areas within their reconfigured zones as investment
for the designation of nearby lands in investment zones to exceed 320             (formerly census tract) zones. The rule would require that 75% of the acre-
acres, upon the determination by the Department of Economic Develop-              age used to define these investment zones be included within an eligible or
ment that certain conditions have been satisfied.                                 contiguous census tract. Furthermore, the rule would not require a
   7. The emergency rule provides a description of the elements to be             development zone to place investment zone acreage within a municipality
included in a zone development plan and requires that the plan be                 in that county if that particular municipality already contained an invest-
resubmitted by the local zone administrative board as economic condi-             ment zone, and the only eligible census tracts were contained within that
tions change within the zone. Changes to the zone development plan must           municipality.
                                                                                     16. The emergency rule tracks the statutory requirements that zones
be approved by the Commissioner of Economic Development (“the                     reconfigure their existing acreage in up to three (for investment zones) or
Commissioner”).                                                                   six (for development zones) distinct and separate contiguous areas, and
   Also, the rule adds additional situations under which a business               that zones can allocate up to their total allotted acreage at the time of
enterprise may be granted a shift resolution.                                     designation. These reconfigured zones must be presented to the Empire
   8. The emergency rule grants discretion to the Commissioner to                 Zones Designation Board for unanimous approval. The emergency rule
determine the contents of an empire zone application form.                        makes clear that zones may not necessarily designate all of their acreage
   9. The emergency rule tracks the amended statute’s deletion of the cate-       into three or six areas or use all of their allotted acreage; the rule removes
gory of contributions to a qualified Empire Zone Capital Corporation from         the requirement that any subsequent additions after their official redesigna-
those businesses eligible for the Zone Capital Credit.                            tion by the Designation Board will still require unanimous approval by
   10. The emergency rule reflects statutory changes to the process to            that Board.
revise a zone’s boundaries. The primary effect of this is to limit the number        17. The emergency rule clarifies the statutory requirement that certain
of boundary revisions to one per year.                                            defined “regionally significant” projects can be located outside of the
   11. The emergency rule describes the amended certification and                 distinct and separate contiguous areas. There are four categories of
decertification processes. The authority to certify and decertify now rests       projects: (i) a manufacturer projecting the creation of fifty or more net new
solely with the Commissioner with reduced roles for the Department of             jobs in the State of New York; (ii) an agri-business or high tech or biotech
Labor and the local zone. Local zone boards must recommend projects to            business making a capital investment of ten million dollars and creating
the State for approval. The labor commissioner must determine whether             twenty or more net new jobs in the State of New York, (iii) a financial or
an applicant firm has been engaged in substantial violations, or pattern of       insurance services or distribution center creating three hundred or more
violations of laws regulating unemployment insurance, workers’ compen-            net new jobs in the State of New York, and (iv) a clean energy research
sation, public work, child labor, employment of minorities and women,             and development enterprise. Other projects may be considered by the
safety and health, or other laws for the protection of workers as determined      empire zone designation board. Only one category of projects, manufactur-
by final judgment of a judicial or administrative proceeding. If such ap-         ers projecting the creation of 50 or more net new jobs, are allowed to
plicant firm has been found in a criminal proceeding to have committed            progress before the identification of the distinct and separate contiguous
any such violations, the Commissioner may not certify that firm.                  areas and/or the approval of certain regulations by the Empire Zones
   12. The emergency rule describes new eligibility standards for                 Designation Board. Regionally significant projects that fall within the four
certification. The new factors which may be considered by the Commis-             categories listed above must be projects that are exporting 60% of their
sioner when deciding whether to certify a firm is (i) whether a non-              goods or services outside the region and export a substantial amount of
manufacturing applicant firm projects a benefit-cost ratio of at least 20:1       goods or services beyond the State.
for the first three years of certification, (ii) whether a manufacturing ap-         18. The emergency rule clarifies the status of community development
plicant firm projects a benefit-cost ratio of at least 10:1 for the first three   projects as a result of the statutory reconfiguration of the zones.
years of certification, and (iii) whether the business enterprise conforms           19. The emergency rule clarifies the provisions under Chapter 63 of the
with the zone development plan.                                                   Laws of 2005 that allow for zone-certified businesses which will be lo-
   13. The emergency rule adds the following new justifications for               cated outside of the distinct and separate contiguous areas to receive zone
decertification of firms: (a) the business enterprise, that has submitted at      benefits until decertified. The area which will be “grandfathered” shall be
least three years of business annual reports, has failed to provide eco-          limited to the expansion of the certified business within the parcel or por-
nomic returns to the State in the form of total remuneration to its employ-       tion thereof that was originally located in the zone before redesignation.
ees (i.e. wages and benefits) and investments in its facility greater in value    Each zone must identify any such business by December 30, 2005.
to the tax benefits the business enterprise used and had refunded to it; (b)         20. The emergency rule elaborates on the “demonstration of need”
the business enterprise, if first certified prior to August 1, 2002, caused       requirement mentioned in Chapter 63 of the Laws of 2005 for the addition
individuals to transfer from existing employment with another business            (for both investment and development zones) of an additional distinct and
enterprise with similar ownership and located in New York state to similar        separate contiguous area. A zone can demonstrate the need for a fourth or,
employment with the certified business enterprise or if the enterprise            as the case may be, a seventh distinct and separate contiguous area if (1)
acquired, purchased, leased, or had transferred to it real property previ-        there is insufficient existing or planned infrastructure within the three (or
ously owned by an entity with similar ownership, regardless of form of            six) distinct and separate contiguous areas to (a) accommodate business
incorporation or organization; (c) change of ownership or moving out of           development and there are other areas of the applicant municipality that
the Zone, (d) failure to pay wages and benefits or make capital invest-           can be characterized as economically distressed and/or (b) accommodate
ments as represented on the firm’s application, (e) the business enterprise       development of strategic businesses as defined in the local development
makes a material misrepresentation of fact in any of its business annual          plan, or (2) placing all acreage in the other three or six distinct and sepa-
reports, and (f) the business enterprise fails to invest in its facility          rate contiguous areas would be inconsistent with open space and wetland
substantially in accordance with the representations contained in its             protection, or (3) there are insufficient lands available for further business
application. In addition, the regulations track the statute in permitting the     development within the other distinct and separate contiguous areas.
decertification of a business enterprise if it failed to create new employ-          The full text of the emergency rule is available at:
ment or prevent a loss of employment in the zone or zone equivalent area,         www.empire.state.ny.us
and deletes the condition that such failure was not due to economic cir-
cumstances or conditions which such business could not anticipate or              This notice is intended to serve only as an emergency adoption, to be
which were beyond its control. The emergency rule provides that the Com-          valid for 90 days or less. This rule expires March 29, 2020.
missioner shall revoke the certification of a firm if the firm fails the stan-    Text of rule and any required statements and analyses may be obtained
dard set forth in (a) above, or if the Commissioner makes the finding in (b)      from: Thomas P. Regan, Department of Economic Development, 625
above, unless the Commissioner determines in his or her discretion, after         Broadway, Albany, NY 12245, (518) 292-5123, email:
consultation with the Director of the Budget, that other economic, social         thomas.regan@esd.ny.gov
and environmental factors warrant continued certification of the firm. The        Regulatory Impact Statement
emergency rule further provides for a process to appeal revocations of               STATUTORY AUTHORITY:
certifications based on (a) or (b) above to the Empire Zones Designation             Section 959(a) of the General Municipal Law authorizes the Commis-

                                                                                                                                                              5
Rule Making Activities                                                                                        NYS Register/January 15, 2020
sioner of Economic Development to adopt on an emergency basis rules                3. Professional services
and regulations governing the criteria of eligibility for empire zone
designation, the application process, the certification of a business              No professional services are likely to be needed by small and large
enterprises as to eligibility of benefits under the program and the decertifi-   businesses in order to establish and maintain the required records. Local
cation of a business enterprise so as to revoke the certification of business
enterprises for benefits under the program.                                      governments are unaffected by this rule.
   LEGISLATIVE OBJECTIVES:
   The rulemaking accords with the public policy objectives the Legisla-           4. Compliance costs
ture sought to advance because the majority of such revisions are in direct
response to statutory amendments and the remaining revisions either                No initial capital costs are likely to be incurred by small and large busi-
conform the regulations to existing statute or clarify administrative            nesses choosing to participate in the Empire Zones program. Annual
procedures of the program. These amendments further the Legislative              compliance costs are estimated to be negligible for both small and larges
goals and objectives of the Empire Zones program, particularly as they
relate to regionally significant projects, the cost-benefit analysis, and the    businesses. Local governments are unaffected by this rule.
process for certification and decertification of business enterprises. The
proposed amendments to the rule will facilitate the administration of this         5. Economic and technological feasibility
program in a more efficient, effective, and accountable manner.
   NEEDS AND BENEFITS:                                                              The Department of Economic Development (“DED”) estimates that
   The emergency rule is required in order to implement the statutory            complying with this record-keeping is both economically and technologi-
changes contained in Chapter 57 of the Laws of 2009. The emergency rule          cally feasible. Local governments are unaffected by this rule.
also clarifies the administrative procedures of the program, improves effi-
ciency and helps make it more cost-effective and accountable to the State’s
taxpayers, particularly in light of New York’s current fiscal climate.             6. Minimizing adverse impact
   COSTS:
   A. Costs to private regulated parties: None. There are no regulated par-        DED finds no adverse economic impact on small or large businesses
ties in the Empire Zones program, only voluntary participants.                   with respect to this rule. Local governments are unaffected by this rule.
   B. Costs to the agency, the state, and local governments: There will be
additional costs to the Department of Economic Development associated
with the emergency rule making. These costs pertain to the addition of             7. Small business and local government participation
personnel that may need to be hired to implement the Empire Zones
program reforms. There may be savings for the Department of Labor as-               DED is in full compliance with SAPA Section 202-b(6), which ensures
sociated with the streamlining of the State’s administration and concentra-      that small businesses and local governments have an opportunity to partic-
tion of authority within the Department of Economic Development. There           ipate in the rulemaking process. DED has conducted outreach within the
is no additional cost to local governments.                                      small and large business communities and maintains continuous contact
   C. Costs to the State government: None. There will be no additional           with small businesses and large businesses with regard to their participa-
costs to New York State as a result of the emergency rule making.                tion in this program. Local governments are unaffected by this rule.
   LOCAL GOVERNMENT MANDATES:
   None. Local governments are not mandated to participate in the Empire
Zones program. If a local government chooses to participate, there is a          Rural Area Flexibility Analysis
cost associated with local administration that local government officials        The Empire Zones program is a statewide program. Although there are
agreed to bear at the time of application for designation as an Empire           municipalities and businesses in rural areas of New York State that are
Zone. One of the requirements for designation was a commitment to local          eligible to participate in the program, participation by the municipalities
administration and an identification of local resources that would be            and businesses is entirely at their discretion. The emergency rule imposes
dedicated to local administration.                                               no additional reporting, record keeping or other compliance requirements
   This emergency rule does not impose any additional costs to the local         on public or private entities in rural areas. Therefore, the emergency rule
governments for administration of the Empire Zones program.
   PAPERWORK:                                                                    will not have a substantial adverse economic impact on rural areas or
   The emergency rule imposes new record-keeping requirements on busi-           reporting, record keeping or other compliance requirements on public or
nesses choosing to participate in the Empire Zones program. The emer-            private entities in such rural areas. Accordingly, a rural area flexibility
gency rule requires all businesses that participate in the program to estab-     analysis is not required and one has not been prepared.
lish and maintain complete and accurate books relating to their
participation in the Empire Zones program for a period of six years.             Job Impact Statement
   DUPLICATION:
   The emergency rule conforms to provisions of Article 18-B of the Gen-         The emergency rule relates to the Empire Zones program. The Empire
eral Municipal Law and does not otherwise duplicate any state or federal         Zones program itself is a job creation incentive, and will not have a
statutes or regulations.                                                         substantial adverse impact on jobs and employment opportunities. In fact,
   ALTERNATIVES:                                                                 the emergency rule, which is being promulgated as a result of statutory
   No alternatives were considered with regard to amending the regula-           reforms, will enable the program to continue to fulfill its mission of job
tions in response to statutory revisions.                                        creation and investment for economically distressed areas. Because it is
   FEDERAL STANDARDS:                                                            evident from its nature that this emergency rule will have either no impact
   There are no federal standards in regard to the Empire Zones program.         or a positive impact on job and employment opportunities, no further affir-
Therefore, the emergency rule does not exceed any Federal standard.
   COMPLIANCE SCHEDULE:                                                          mative steps were needed to ascertain that fact and none were taken. Ac-
   The period of time the state needs to assure compliance is negligible,        cordingly, a job impact statement is not required and one has not been
and the Department of Economic Development expects to be compliant               prepared.
immediately.
Regulatory Flexibility Analysis
   1. Effect of rule
   The emergency rule imposes new record-keeping requirements on small                         Education Department
businesses and large businesses choosing to participate in the Empire
Zones program. The emergency rule requires all businesses that partici-
pate in the program to establish and maintain complete and accurate books                           NOTICE OF EXPIRATION
relating to their participation in the Empire Zones program for a period of
six years. Local governments are unaffected by this rule.                             The following notice has expired and cannot be reconsidered un-
   2. Compliance requirements                                                    less the Education Department publishes a new notice of proposed
   Each small business and large business choosing to participate in the         rule making in the NYS Register.
Empire Zones program must establish and maintain complete and accurate
books, records, documents, accounts, and other evidence relating to such         Annual professional performance reviews.
business’s application for entry into the Empire Zone program and relating
to existing annual reporting requirements. Local governments are unaf-                I.D. No.                    Proposed             Expiration Date
fected by this rule.                                                              EDU-52-18-00005-P           December 26, 2018       December 26, 2019

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