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Notice of Emergency Adoption and Proposed Rule Making - 19 NYCRR Subpart 1208-6 - Suspension or Revocation of Certifications of Code Enforcement Personnel

Emergency Adoption effective April 25, 2018

On April 25, 2018, the Department of State adopted a rule as an emergency rule, and proposed the rule for adoption as a permanent rule.  The emergency rule and proposed permanent rule adds a new Subpart 1208-6 to Part 1208 of Title 19 of the New York Codes, Rules and Regulations.  The rule authorizes the Secretary of State to revoke or suspend the certification of a Code Enforcement Official (CEO) or Building Safety Inspector (BSI) if an Administrative Law Judge determines, after a hearing, that the CEO or BSI materially failed to uphold his or her code enforcement duties. 
Background

            Section 376-a of the Executive Law authorizes the Secretary of State to promulgate rules and regulations relating to training of personnel charged with enforcement of the Uniform Fire Prevention and Building Code (the Uniform Code) and the State Energy Conservation Construction Code (the Energy Code).  Those rules and regulations are currently set forth in 19 NYCRR Part 1208.

            Section 376-a of the Executive Law was amended by Chapter 468 of the Laws of 2017.  The amendment provides that the rules and regulations relating to training of code enforcement personnel must include provisions that (1) establish minimum training and examination requirements to qualify for code enforcement officer certification; (2) provide for issuance of a code enforcement officer certification when an applicant satisfies such training and examination requirements; and (3) provide for revocation or suspension of the certification of any code enforcement personnel found after a hearing “to have materially failed to uphold duties of a code enforcement officer, including but not limited to, making material errors or omissions on an inspection report.”

            19 NYCRR Part 1208 already establishes basic training and examination requirements for code enforcement personnel, and provides for certification of persons who satisfy those requirements.  This rule adds a new Subpart 1208-6 to 19 NYCRR Part 1208.  New Subpart 1208-6 implements the amendments to section 376-a of the Executive Law made by Chapter 468 of the Laws of 2017 by adding provisions relating to the revocation or suspension of certifications of code enforcement personnel who are found to have materially failed to uphold their code enforcement duties.

Subpart 1208-6

          Subpart 1208-6 authorizes the Secretary of State to revoke or suspend the certification of a Code Enforcement Official (CEO) or Building Safety Inspector (BSI) if an Administrative Law Judge determines, after a hearing, that the CEO or BSI materially failed to uphold his or her code enforcement duties. 

            Subpart 1208-6 provides that a “material failure” to uphold code enforcement duties would include a failure to note one or more serious code violations on an inspection report; making any other material error or omission on an inspection report; demonstrating, by act or omission, willful misconduct, gross negligence, or gross incompetence in the performance of code enforcement activities; performing any code enforcement activity at a time when the CEO’s or BSI’s certification is inactive or suspended; and, in the case of a BSI, performing any code enforcement activity other than fire safety and/or property maintenance inspections of existing buildings.

          Subpart 1208-6 provides that if the Department of State receives a written complaint alleging that a CEO or BSI has materially failed to uphold code enforcement duties, the Department of State will investigate that complaint, or refer the complaint to the governmental unit or agency served by the CEO or BSI and require that governmental unit or agency to investigate the complaint and to report the results of that investigation to the Department of State.  Subpart 1208-6 also authorizes such investigations if information indicating that a CEO or BSI may have materially failed to uphold code enforcement duties comes to the attention of the Department of State by means other than a formal written complaint.

          Subpart 1208-6 authorizes the Department of State to refer the question of whether a CEO or BSI did or did not materially fail to uphold his or her code enforcement duties to the Department of State’s Office of Administrative Hearings. Upon such referral, an Administrative Law Judge in the Office of Administrative Hearings would conduct a hearing and render a decision in writing.  The CEO or BSI would be given notice of the hearing by first-class mail, certified mail, or other means.  The hearing would be conducted in accordance with the Department of State’s existing regulations relating to adjudicative hearings (19 NYCRR Part 400) and Article 3 of the State Administrative Procedure Act. 

          The full Text of the rule, as adopted as an emergency rule and as now proposed for permanent adoption, is available here

Invitation to Participate in Rule Making Process

          The rule became effective as an emergency rule on April 25, 2018, and is now in full force and effect.  The emergency rule will remain in effect for 90 days.  The emergency rule may be re-adopted on an emergency basis one or more times.  Each such emergency re-adoption would be effective for 60 days.

          The rule has also been proposed for permanent adoption.


The Department of State invites all interested parties, including but not limited to those representing small businesses, local governments, and public or private interests in rural areas, to participate in the rule making process.  Interested parties are invited to submit comments on the rule.  Comments on the rule may be submitted at the public hearing to be held at 10:00 am on July 24, 2018 at Room 505, 99 Washington Ave., Albany, NY.  Comments may also be submitted in writing to Joseph Ball, Associate Attorney in the Department of State’s Office of General Counsel, at any time on or before July 30, 2018.  Written comments may be submitted by mail addressed to New York State Department of State, Office of General Counsel, 99 Washington Ave., Albany, NY 12231-0001, Attn:  Joseph Ball; by fax addressed to Mr. Ball and sent to (518) 473-9211; or by e mail to joseph.ball@dos.ny.gov.

Rule Making Schedule:
Notice filed (emergency rule effective):      April 25, 2018
Notice Published in the State Register:       May 16, 2018
Public Hearing to be held:                        July 24, 2018 at 10 a.m.

Department of State   
99 Washington Avenue
Conf. Rm. #505
Albany, New York 12231

Public Comment Period Ends:                    July 30, 2018

Dated: April 25, 2018



NOTICE OF PROPOSED RULE MAKING
Condition Assessments of Parking Garages
(19 NYCRR Parts 1202, 1203, 1204)

The Department of State has proposed a rule that would amend Parts 1202, 1203, and 1204 of Title 19 of the New York Codes, Rules and Regulations.  The amendments to be made by this proposed rule would require cities, towns, villages, counties, and State agencies that are responsible for administering and enforcing the New York State Uniform Fire Prevention and Building Code (the Uniform Code) to require the owners of parking garages to have periodic condition assessments of those parking garages performed by qualified professional engineers.  The Department of State invites public participation in the rule making process.

Background

In general, local governments (cities, towns, and villages) are responsible for administering and enforcing the Uniform Code.  In certain situations, counties and State agencies (including but not limited to the Department of State) are responsible for administering and enforcing the Uniform Code.

Executive Law § 381(1) authorizes the Department of State to promulgate regulations establishing minimum standards for administration and enforcement of the Uniform Code. The regulations promulgated by the Department of State pursuant to Executive Law § 381(1) include:

  • 19 NYCRR Part 1202, which contains provisions applicable to administration and enforcement of the Uniform Code by the Department of State;
  • 19 NYCRR Part 1203, which contains provisions applicable to administration and enforcement of the Uniform Code by local governments and counties; and
  • 19 NYCRR Part 1204, which contains provisions applicable to administration and enforcement of the Uniform Code by State agencies.

While the existing regulations require governmental units or agencies responsible for administration and enforcement of the Uniform Code to perform periodic fire safety and property maintenance inspections, such inspections do not rise to the level of ensuring the ongoing structural integrity of a parking garage.  The condition assessments required by this proposed rule are intended to identify and prevent conditions that could cause catastrophic collapses, thereby ensuring public safety.

Proposed Amendments to Part 1202, 1203, and 1204

The proposed rule would amend Section 1203.3 to provide that local governments’ code enforcement programs must include provisions requiring condition assessments of parking garages.  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.  Initial condition assessments of parking garages shall be conducted prior to a certificate of occupancy or certificate of compliance being issued for new parking garages or within one year after the effective date of the rule adding this provision to 19 NYCRR section 1203.3 for existing parking garages. Thereafter, periodic condition assessments shall be conducted at intervals fixed by the authority having jurisdiction within its code enforcement program but not to exceed three (3) years.  Additional condition assessments could be required before the date of the next periodic condition assessment if the most recent condition assessment report for a parking garage includes a recommendation by the responsible professional engineer that an additional condition assessment be performed or 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.  All condition assessments shall be conducted by or under the direct supervision of a licensed professional engineer who has at least three years of experience performing structural evaluations. 

This proposed rule would also amend Section 1203.3(g) to provide that local governments’ code enforcement programs must require operating permits for using parking garages.

This proposed rule would 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 in accordance with Section 1203.3(j).

The Notice of Proposed Rule Making will appear in the May 16, 2018 edition of the State Register.  On and after May 16, 2018, the May 16, 2018 edition of the State Register can be viewed by clicking the "May 16" link at https://www.dos.ny.gov/info/register/2018.html.  The Notice of Proposed Rule Making includes the Text of the proposed rule, Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural Area Flexibility Analysis, and Statement Regarding Job Impact Statement.

The full Text of the proposed rule is available by clicking here:

Invitation to Participate in Rule Making Process

The Department of State invites all interested parties, particularly those representing small businesses, local governments, and public or private interests in rural areas, to participate in the rule making process.  Interested parties are invited to submit comments on the proposed rule.  If you have suggestions on how the proposed rule could be improved, suggested alternatives to the proposed rule that the Department of State could consider, or any other comments on the proposed rule, please contact Gerard Hathaway, Assistant Director for Code Development, Division of Building Standards & Codes, by mail at New York State Department of State Division of Administration and Enforcement, 99 Washington Ave., Albany, NY 12231-0001; by telephone at (518) 486-6990; or by email at Dos.sm.codes.codedevelopment@dos.ny.gov.  If submitting comments by email, please type Parking Garage NPRM: in the subject line.

Rule Making Schedule:
Published in the New York State Register:    May 16, 2018
Public Comment Period Ends:                      July 23, 2018
Public Hearing to be held:                           July 17, 2018 at 10 a.m.
                                                              Department of State   
                                                              99 Washington Avenue
                                                              Conf. Rm. #505
                                                              Albany, New York 12231

Dated: April 27, 2018

NOTE:           The proposed rule has not yet been adopted, and Parts 1202, 1203, and 1204 have not yet been amended in the manner described above.


Notices of Adoption
Rules amending the Uniform Code and Energy Code
EFFECTIVE October 31, 2017

On July 13, 2017, the State Fire Prevention and Building Code Council (the “Code Council”) adopted rules that amend the New York State Uniform Fire Prevention and Building Code (the “Uniform Code”) and the State Energy Conservation Construction Code (the “Energy Code”). 

The Department of State, acting on behalf of the Code Council, has filed Notices of Adoption of these rules.  The Notices of Adoption will appear in the August 2, 2017 edition of the State Register.  On and after August 2, 2017, the Notices of Adoption can be viewed by clicking the “August 2” link at: http://www.dos.ny.gov/info/register/2017.html

The rules will become effective on October 31, 2017.

Uniform Code
The rule adopted by the Code Council on July 13, 2017 makes several changes to the Uniform Code (19 NYCRR Parts 1219 to 1228).  These changes will be made by replacing the 2016 Uniform Code Supplement with a new publication entitled the 2017 Uniform Code Supplement (publication date: July 2017).

Prior to October 31, 2017, the Uniform Code will continue to include the 2015 I-Codes, as amended by the 2016 Uniform Code Supplement.  On and after October 31, 2017, the Uniform Code will include the 2015 I-Codes, as amended by the 2017 Uniform Code Supplement 1

Effective Date:  The effective date of the 2017 Uniform Code Supplement will be October 31, 2017.  There will be no transition period.  Beginning on October 31, 2017, regulated parties submitting building permit applications must comply with the 2015 I-Codes, as amended by the 2017 Uniform Code Supplement.

Click here to obtain the full text of the rule that amends the Uniform Code.

Click here to obtain the 2017 Uniform Code Supplement.

Energy Code
The rule adopted by the Code Council on July 13, 2017 makes no significant changes to the Energy Code (19 NYCRR Part 1240).  However, the publication entitled “2016 Supplement to the New York State Energy Conservation Construction Code (Revised August 2016)”(the “2016 Energy Code Supplement”) includes several references to the 2016 Uniform Code Supplement.  Because the rule that amends the Uniform Code will replace the 2016 Uniform Code Supplement with the 2017 Uniform Code Supplement effective October 31, 2017, it was necessary to adopt a rule that provides that, effective October 31, 2017, all references in the 2016 Energy Code Supplement to the 2016 Uniform Code Supplement will be deemed to be references to the 2017 Uniform Code Supplement.  The rule adopted by the Code Council on July 13, 2017 does that.

It is important to note that the rule adopted by the Code Council does not replace the 2016 Energy Code Supplement with a new publication.  The 2016 Energy Code Supplement will continue in full force in effect.  However, each Authority Having Jurisdiction and each regulated party should know that, on and after October 31, 2017, each reference in the 2016 Energy Code Supplement to the “2016 Uniform Code Supplement” must be read as if it were a reference to the “2017 Uniform Code Supplement.”

Effective Date:  The effective date of the modifications to Part 1240 will be October 31, 2017.  There will be no transition period.  Beginning on October 31, 2017, all references in the 2016 Supplement to the New York State Energy Conservation Construction Code (Revised August 2016) to the 2016 Uniform Code Supplement shall be deemed to be references to the 2017 Uniform Code Supplement.

Click here to obtain the full text of the rule that amends Part 1240.

Parts 1264 and 1265
19 NYCRR Part 1264 includes provisions relating to placement of signs or symbols on commercial buildings that utilize truss type construction.  19 NYCRR Part 1265 includes provisions relating to placement of signs or symbols on residential buildings that utilize truss type, pre-engineered wood or timber construction.

Parts 1264 and 1265 include references to the 2016 Uniform Code Supplement.  Because the rule that amends the Uniform Code will replace the 2016 Uniform Code Supplement with the 2017 Uniform Code Supplement effective October 31, 2017, it was necessary to adopt a rule that amends Parts 1264 and 1265 by changing all references in Parts 1264 and 1265 to the 2016 Uniform Code Supplement to references to the 2017 Uniform Code Supplement

The rule amending the Uniform Code adopted by the Code Council on July 13, 2017 also makes these necessary changes to Parts 1264 and 1265.  The rule makes no substantive changes to Part 1264 or Part 1265.

Effective Date:  The effective date of the amendments to Parts 1264 and 1265 will be October 31, 2017.  There will be no transition period.       

Click here to obtain the full text of the rule that amends Parts 1264 and 1265.


1 The “2015 I-Codes” include the 2015 editions of the International Residential Code, International Building Code, International Plumbing Code, International Mechanical Code, International Fuel Gas Code, International Fire Code, International Property Maintenance Code, and International Existing Building Code, all published by the International Code Council, Inc.



Notice of Rule in Development

(19 NYCRR Part 1203)

A rule currently in development would amend Part 1203 of Title 19 of the New York Codes, Rules and Regulations (“Part 1203”).  The Department of State invites public participation in the rule development process.

Background

Executive Law § 381(2) provides that, in general, local governments (cities, towns, and villages and, under some circumstances, counties) are required to administer and enforce the New York State Uniform Fire Prevention and Building Code (the Uniform Code).  Energy Law § 11-107 provides that local governments that administer and enforce the Uniform Code are also required to administer and enforce the State Energy Conservation Construction Code (the Energy Code).

Executive Law § 381(1) provides that the Department of State must promulgate regulations establishing minimum standards for administration and enforcement of the Uniform Code.   Energy Law § 11-107 provides that those minimum standard regulations also apply to administration and enforcement of the Energy Code.

19 NYCRR Part 1203 contains the “minimum standards” established by the Department of State pursuant to Executive Law § 381(1).  Part 1203 requires each local government that administers and enforces the Uniform Code and Energy Code to establish a code enforcement program and to include certain features within that program.  The required features include provisions requiring building permits, provisions requiring permit applications to include certain information, provisions requiring construction inspections at various stages of construction, and provisions establishing and maintaining a system for keeping records relating to the local government’s code enforcement activities.

An updated version of the Energy Code became effective on October 3, 2016.  That version of the Energy Code (the 2016 Energy Code) includes several new provisions that are intended to increase the rate of compliance with the Energy Code.  For example, the 2016 Energy Code includes provisions that (1) require applications for building permits to include specific information related to Energy Code compliance, (2) require construction documents submitted with permit application to include certification by the design professional (engineer or architect) that the design complies with the Energy Code, (3) require the governmental unit or agency responsible for administration and enforcement of the Energy Code (the Authority Having Jurisdiction) to stamp approved plans as “reviewed for Energy Code compliance,” and (4) require inspections for Energy Code compliance at specified stages of construction of a building.

Proposed Amendments to Part 1203

The rule now under development would amend Part 1203 to provide that local governments’ code enforcement programs must (1) require permit applications to include the additional Energy Code-specific information required by the 2016 Energy Code; (2) require permit applications to include the design professional’s certification as to code compliance; (3) provide that the Authority Having Jurisdiction will stamp approved plans as “reviewed for Energy Code Compliance;” and (4) provide for inspections for Energy Code compliance at the specific stages of construction required by the 2016 Energy Code.

Executive Law § 381(1)(i) provides that the matters to be addressed by the Department of State’s “minimum standards” regulations should include “standards and procedures for measuring the rate of compliance with the [Energy Code], and provisions requiring that such rate of compliance be measured on an annual basis.”  The rule now under development would implement Executive Law § 381(1)(i) by adding to Part 1203 provisions requiring local governments’ code enforcement programs to include provisions for measuring and reporting the rate of compliance with the Energy Code.   

The rule now under development would also make a number of technical changes to Part 1203, such as changing current references to the Uniform Code to references to both the Uniform Code and Energy Code.

A draft of the full Text of the rule now under development is available here.

Invitation to Participate in Rule Development Process

The Department of State invites all interested parties, particularly those representing small businesses, local governments, and public or private interests in rural areas, to participate in the rule development process.  Interested parties are invited to submit comments on the draft rule.  If you have suggestions on how the draft rule could be improved, suggested alternatives to the draft rule that the Department of State could consider, or any other comments on the draft rule, please contact Joseph Ball, Associate Attorney, New York State Department of State, Office of General Counsel, 99 Washington Ave., Albany, NY 12231-0001; by telephone at (518)-474-6740; or by e mail at joseph.ball@dos.ny.gov.

Dated: March __, 2017

NOTE: The draft rule has not yet been adopted, and Part 1203 has not yet been amended in the manner described above.



Notice of Adoption

Effective January 1, 2015

 Regulation establishing training
requirements for code enforcement personnel

The rule establishes levels of certification (Building Safety Inspector Certification and Code Enforcement Official Certification), prescribes the functions that can be performed by persons holding each level of certification, and establish the training requirements for each level of certification. This rule clarifies when a Building Safety Inspector Certification or a Code Enforcement Official Certification will be classified as inactive, and this rule specifies what a person whose certification has been classified as inactive must do to have his or her certification restored to “active” status.

Click here for a summary of the requirements

Full Text of Rule (PDF format)