With regard to the third point, laboratory animal studies support human
hazard identification, particularly when health endpoints associated withhuman exposures in epidemiological studies are also observed in exposedanimals.
With regard to the fourth point, DOH concluded that, overall, the
combined weight of evidence from human and experimental animal stud-ies indicates that prolonged exposure to significantly elevated levels ofPFOA or PFOS can negatively affect human health. Moreover, the UnitedStates Environmental Protection Agency (EPA) released updated editions
of its Health Effects Support Documents in support of the lifetime healthadvisories issued by EPA in May 2016 for PFOA and PFOS. All of thesummaries identify important studies on the health effects associated withexposure to these chemicals, including studies on chronic, developmental,and reproductive effects observed in humans and animals, and provide ad-ditional support for listing PFOA/PFOS as hazardous substances.
A draft report issued by the National Toxicology Program (NTP)
provides additional support, concluding that both PFOA and PFOS arepresumed to be an immune hazard to humans. Presumed hazards are onestep below known hazards and one step above suspected hazardous on thefive-step scale NTP uses for hazard identification.
Based on the review of human epidemiology and animal toxicology
data for PFOA and PFOS, and DOH’s conclusions that significantlyelevated exposure to PFOA or PFOS can affect human health, there is suf-ficient information to conclude that PFOA/PFOS meet the criteria to belisted as hazardous substances.
3. Concerns with Firefighting Foama. Commenters expressed concern with allowing continued use of foam
that may contain PFOA/PFOS through April 25, 2017.
Balancing the risks posed by PFOA/PFOS against the risks posed by
fires in support of our mission to protect public health and the environ-ment, DEC is allowing the use of firefighting foams that may containPFOA/PFOS to fight fires that occur on or before April 25, 2017. DECrecognizes that facilities that possess supplies of firefighting foam needtime to determine if their existing supplies of foam contain one or more ofthese newly listed hazardous substances and to make arrangements todispose of and replace firefighting foam that contains PFOA/PFOS wherethe concentration of PFOA/PFOS is such that the foam cannot be usedwithout causing a reportable spill (one pound of PFOA or PFOS). Allow-ing facilities that possess firefighting foam to continue to use foams thatmay contain PFOA/PFOS on a limited basis to fight fires furthers protec-tion of public health and safety. DEC is not allowing use of firefightingfoam that would result in a reportable spill of PFOA/PFOS for otherpurposes such as training. If firefighting foam containing PFOA/PFOS isused to fight a fire and there is a release of one pound or more of a hazard-ous substance, the release needs to be reported to DEC’s spill hotline to al-low DEC to determine if remediation of the release is necessary. DECbelieves this is an appropriate approach that allows for the protection ofthe public and the environment.
b. A commenter expressed concern about economic and financial
impacts on fire departments, fire districts, and municipalities which mustdetermine whether firefighting foams contain PFOA/PFOS and disposeand replace PFOA/PFOS foams.
DEC understands the concern regarding costs to fire departments of
determining whether foams contain PFOA/PFOS in concentrations suchthat the foams cannot be used without causing a reportable spill (one poundof PFOA or PFOS) and the costs of disposing and replacing foams. DEChas been working with the Fire Fighting Foam Coalition and the manufac-turers of firefighting foam to make available information on foams thatmay contain PFOA/PFOS. In addition, DEC has posted a fact sheet onfirefighting foam on DEC’s website (see www.dec.ny.gov/regulations/106078.html). DEC believes the information in the fact sheet will mini-mize costs to fire departments in determining whether foams containPFOA/PFOS and disposing of foams that contain PFOA/PFOS where theconcentration of PFOA/PFOS is such that the foam cannot be used withoutcausing a reportable spill (one pound of PFOA or PFOS). DEC is unableto provide assistance with costs associated with replacement of firefight-ing foam. In addition, the regulation seeks to minimize costs by allowingthe use of such foam to fight fires until April 25, 2017, a year after theemergency rule went into effect.
c. The same commenter requested clarification regarding who will be
responsible for the cost of the cleanup of any foam used for fireextinguishment.
DEC understands the concern regarding liability for cleanup costs as-
sociated with the use of firefighting foam. DEC will evaluate on a case-by-case basis the need for remediation of any release of PFOA/PFOS andwho will be liable for cleanup costs.
d. Another commenter, a manufacturer of firefighting foam, noted that
fluorine-free foams are now being developed.
4. Requests for additional action.While DEC understands the concerns raised by the commenters below,each of these additional actions goes beyond the scope of this rule making.
Below is a summary of the requested actions and DEC’s responses.
Commenters requested that DEC:a. Regulate the disposal of PFOA/PFOS as hazardous wastes.b. Regulate the discharge of PFOA/PFOS under the State Pollutant Dis-
charge Elimination System (SPDES) and set effluent limits to non-detect.
c. Regulate the discharge of air emissions of PFOA/PFOS and set the
reportable limit to zero pounds.
d. Require manufacturers of PFOA/PFOS to monitor the water, soil,
and air within the communities where they do business, regardless of thesize of the community.
These requested actions are beyond the scope of the current rulemak-
ing, however, DEC may consider these issues in a future rule making orpolicy document.
Commenter requested that DEC:e. Set a drinking water maximum contaminant level for PFOA/PFOS.
f. Require public water supplies be tested for the presence of PFOA/
PFOS.
These requested actions are outside of the scope of DEC authority.Commenter requested that DEC:g. List all fluorinated chemicals in Part 597.h. Review and list other emerging contaminants.As DEC becomes aware of unregulated chemicals of concern, DEC
will evaluate each such chemical to determine whether it is appropriate toclassify it as a hazardous substance.
i. Commenter requested that DEC require remediation of other sites
that are contaminated.
As DEC becomes aware of contaminated properties, DEC will evaluate
appropriate response and remediation for these properties in the samemanner that DEC addresses any other property that is contaminated by ahazardous substance. Companies that contaminate properties are amongthe parties responsible for costs associated with remediation.
j. Commenter requested that DEC collaborate with DOH, the New York
State Department of State, and local governments to conduct communica-tion campaigns to raise awareness about the effects of PFOA/PFOS.
DEC has provided and will continue to provide information to interested
parties regarding DEC’s efforts to address these issues.
k. Commenter requested that DEC communicate to the public the results
of EPA’s progress regarding its voluntary PFOA Stewardship Program.
EPA developed and administers the voluntary PFOA Stewardship
Program. Information about this program is available on EPA’s website atwww.epa.gov/assessing-and-managing-chemicals-under-tsca/and-polyfluoroalkyl-substances-pfass-under-tsca#tab-3.
l. Commenter requested that DEC hold Legislative Hearings on New
York State’s water quality.
Legislative hearings have been scheduled to address New York State’s
water quality.
NOTICE OF ADOPTION
Low Emission Vehicle (LEV III) and Zero Emission Vehicle
(ZEV) Standards
I.D. No. ENV-25-16-00007-A
Filing No. 883
Filing Date: 2016-09-19
Effective Date: 30 days after filing
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following action:
Action taken: Amendment of Parts 200 and 218 of Title 6 NYCRR.
Statutory authority: Environmental Conservation Law, sections 1-0101,
1-0303, 3-0301, 19-0103, 19-0105, 19-0107, 19-0301, 19-0303, 19-0305,19-1101, 19-1103, 19-1105, 71-2103, 71-2105 and section 177 of theFederal Clean Air Act (42 USC 7507)
Subject: Low emission vehicle (LEV III) and zero emission vehicle (ZEV)
standards.
Purpose: To incorporate California's most recent LEV III and ZEV
program standards adopted in October 2015.
Text of final rule: Subpart 218-1 remains the same.
Section 218-2.1(a) is revised to read:(a) It is unlawful for any person to sell or register, offer for sale or lease,
import, deliver, purchase, rent, lease, acquire or receive a 1993, 1994,1996 or subsequent model-year, new or used motor vehicle, new motorvehicle engine or motor vehicle with a new motor vehicle engine in theState of New York which is not certified to California emission standardsand meets all other applicable requirements of California Code of Regula-tions, title 13, sections 1956.8, 1956.9, 1960.1, 1960.1.5, 1960.5, 1961,NYS Register/October 5, 2016 Rule Making Activities
71961.2, 1962, 1962.1, 1964, 1965, 1968.1, 1968.2, 1976, 1978, 2030,
2031, 2047, 2065, 2235, and article 1.5 (see Table 1, section 200.9 of thisTitle) and is otherwise not in compliance with the Environmental Conser-vation Law and these departmental regulations, unless the vehicle is soldto another dealer, sold for the purpose of being wrecked or dismantled,sold exclusively for off-highway use, or sold for registration out of state.Vehicles that have been certified to standards promulgated pursuant to theauthority contained in 42 USC 7521 (see Table 1, section 200.9 of this
Title) and that are in the possession of a rental agency in New York thatare next rented with a final destination outside of New York will not bedeemed as being in violation of this prohibition.
Sections 218-2.1(b) through 218-12.1 remain the same.
Final rule as compared with last published rule: Nonsubstantive changes
were made in section 218-2.1(a).
Text of rule and any required statements and analyses may be obtained
from: Jeff Marshall, P. E., NYSDEC, 625 Broadway, Albany, NY 12233-
3255, (518) 402-8292, email: air.regs@dec.ny.gov
Additional matter required by statute: Pursuant to Article 8 of the State
Environmental Quality Review Act, a Short Environmental AssessmentForm, a Negative Declaration and a Coastal Assessment Form have beenprepared and are on file.
Summary of Revised Regulatory Impact Statement
The Department is adopting amendments to Part 218 and the associated
provisions in Section 200.9 to incorporate California’s latest low emissionvehicle (LEV) III and zero emission vehicle (ZEV) standards into NewYork’s existing LEV program.
Part 218 is being revised to update New York’s incorporation of Cali-
fornia’s amendments to the LEV III program initially adopted by NewYork in 2012. The adopted LEV III revisions to Part 218 apply to all 2017through 2025 model year vehicles up to 14,000 pounds GVWR and at-tempt to align LEV III with Tier 3 criteria pollutant standards adopted bythe United States Environmental Protection Agency (EPA). EPA’s Tier 3standards generally mirror the structure and requirements of LEV III andwere developed in collaboration with the California Air Resources Board(CARB). The adopted LEV III amendments include revisions that providevehicle manufacturers with additional compliance flexibility whilemaintaining the stringency of LEV III and modify the California environ-mental performance label scores to include LEV III emission standards.
CARB initially adopted LEV III standards in 2012, but they were not
incorporated in the environmental performance label smog scores.CARB’s adopted revisions incorporate LEV III emission standards intothe scores and revise the scores annually. Greenhouse gas (GHG) scoreswill be updated to reflect the current vehicle fleet. Federal labels willcontinue to be available as a compliance option.
Part 218 is also being revised to incorporate California’s amendments
to the ZEV program. New York last updated its ZEV requirements in 2015.The adopted ZEV revisions to Part 218 apply to 2018 through 2025 modelyear passenger cars, light-duty trucks, and medium-duty vehicles. Theadopted ZEV amendments include, as explained below, a revised interme-diate volume manufacturer (IVM) definition, IVM transition lead time,ZEV percentage requirements, IVM pooling provision, IVM credit deficitprovision, and a revision to the fast refueling definition.
Revised IVM definition: As part of the 2012 Advanced Clean Cars
(ACC) rulemaking, CARB redefined an IVM as any manufacturer withCalifornia sales between 4,501 and 20,000 new light and medium-dutyvehicles. Sales are based on the average number of vehicles sold over theprevious consecutive 3 year period. CARB determined that the vehiclesales requirement is insufficient to accurately assess a manufacturer’sability to produce advanced technology vehicles such as ZEV andtransitional zero emission vehicles (TZEV). TZEVs are advanced technol-ogy vehicles such as plug-in hybrid electric vehicles (e.g., Chevrolet Volt),electric vehicles with internal combustion range extenders (e.g., BMW i3REX), or hydrogen fueled internal combustion engine vehicles whichadvance the introduction of pure ZEVs. In addition to the sales require-ment, therefore, CARB adopted an automotive related global revenuethreshold requirement. The automotive related global revenue thresholdwill only be available to IVMs for the 2018 through 2020 model years.This revenue threshold will be $40 billion based on the average for theprevious 3 consecutive fiscal years. If an IVM’s 3 year average globalautomotive revenue is no greater than $40 billion, then the 3 model yearproduction average corresponding to that fiscal year will not apply to the 5consecutive 3 year averages discussed below. Starting with model year2021, any manufacturer that exceeds the 20,000 vehicle threshold will berequired to meet large volume manufacturer (LVM) ZEV requirementsregardless of automotive related global revenue.
IVM to LVM transition lead time: The current ZEV regulation provides
IVMs as little as 3 years lead time before they are required to meet LVMrequirements. CARB extended the lead time provision for IVMs to 5 con-secutive 3 year averages beginning when an IVM exceeds the 20,000 ve-hicle average. This provision will provide IVMs with 5 to 7 years lead
time to produce ZEV and TZEV. The first 3 year period covers the 2015to 2017 model years reported in 2018. For example, if an IVM averagesgreater than 20,000 vehicles per year for 5 consecutive 3 years averagesstarting in 2015-2017 it will transition to LVM ZEV requirements startingwith model year 2022. The lead time clock will not run when automotiverelated global revenue is less than, or equal to, $40 billion.
ZEV percentage requirements: The current ZEV percentage require-
ments were established in the 2012 ACC rulemaking. CARB determined
the ZEV percentage requirements will remain unchanged and will bereexamined as part of the mid-term review in 2016. IVM will be allowedto meet their full ZEV requirement with TZEV.
IVM pooling provision: CARB, with input from Section 177 states,
revised the optional Section 177 state compliance path pooling provisions.The optional Section 177 state compliance path is a voluntary compliancemechanism intended to alleviate the compliance burden for manufacturerswhile ensuring that ZEVs are actually placed in service in Section 177states prior to model year 2018. Currently, to be eligible for pooling, amanufacturer must voluntarily place a certain percentage of advancedtechnology vehicles in Section 177 states in model years 2016 and 2017beyond the base path percentages for those model years. In return, themanufacturer will be granted the ability to pool vehicle sales among statesand between regions, and be subject to decreased ZEV and TZEV percent-ages in later years. Generally, LVMs were the only manufacturers in a po-sition to avail themselves of the optional compliance path. Most IVMscurrently do not have ZEV or TZEV models and cannot meet the earlyplacement requirement which enables pooling. Therefore, IVMs will bepermitted to place additional advanced technology vehicles 2 years priorto commencing LVM status in order to be eligible for pooling. IVMs willalso be allowed to pool TZEV credits, but their overall TZEV obligationwill not be reduced by pooling.
IVM ZEV credit deficit: The current ZEV regulation allows manufactur-
ers 1 year to offset a ZEV credit deficit. CARB extended the creditrecovery period up to 3 years, consistent with other mobile sourceprograms, but restricted to IVMs only. IVMs with a credit deficit will berequired to present a plan to CARB detailing how they intend to achievecompliance. IVMs will be allowed to offset a ZEV deficit with TZEVcredits consistent with existing regulations.
Fast refueling: Lastly, CARB revised the fast refueling definition for
battery electric vehicles (BEV), also known as battery swapping. Batteryswapping for a BEV removes the depleted battery pack with a fullycharged replacement battery pack to meet the refueling time and drivingrange requirements for each ZEV Type. CARB previously revised the fastrefueling definition to require a demonstration of battery swapping for inuse vehicles within a calendar year. Manufacturers contend this isproblematic for vehicles placed in the latter part of a model year. CARBadopted clarifying language that requires the demonstration to occurwithin 12 months of the vehicle being placed in service.
The Department is adopting LEV III and ZEV standards and credit
mechanisms that are identical to those adopted by CARB as required bySection 177 of the Clean Air Act.
The adopted LEV III amendments are expected to have minimal, if any,
economic impact on manufacturers. The adopted amendments are intendedto minimize manufacturers’ compliance costs by aligning the LEV IIIstandards with EPA’s Tier 3 standards to the greatest extent possible. Anypotential savings are related to certification test procedures. CARBestimated that 2 of 30 manufacturers would save an average of $76,000 inhybrid electric vehicle certification testing costs over the life of theregulation. New York is preempted from certifying vehicles, so these costsand savings do not apply. CARB also estimated average annual BEV andplug-in hybrid electric vehicle (PHEV) 3 year projection reporting wouldbe $1,500. New York currently does not require manufacturers to submit asimilar report.
The adopted ZEV amendment’s economic impact on IVMs is depen-
dent upon their compliance strategy. Compliance scenarios range from,but are not limited to, compliance with only ZEVs to only TZEVs. Compli-ance with fuel cell vehicles (FCVs), or BEVs earning maximum creditwill require fewer vehicles to be delivered to demonstrate compliance.FCVs cost more per vehicle than TZEVs, but the overall number ofvehicles required to demonstrate compliance would be less. An IVM dem-onstrating compliance using solely TZEVs would be required to delivermore vehicles due to the lower ZEV credit per vehicle. The most likelycompliance scenario will include a mix of ZEVs and TZEVs to increasecompliance flexibility and reduce costs.
The adopted LEV III and ZEV amendments are not expected to have
any impact on consumers. There should be no costs associated with theadopted LEV III and ZEV amendments that will be passed along toconsumers in the form of higher prices.
Currently there is no automotive manufacturing in New York involving
the final assembly of vehicles. Affiliated businesses, such as dealerships
NYS Register/October 5, 2016 Rule Making Activities
8and engineering and design facilities, are local businesses which compete
within the State and generally are not subject to competition from out-of-state businesses. New York dealerships will be able to sell California cer-tified vehicles to states bordering New York, as is currently the case. NewYork residents will not be able to buy noncompliant vehicles out of statesince vehicles must be California certified in order to be registered in NewYork. This is currently the case with the existing LEV program and willnot change with the adopted requirements. The adopted amendments ap-ply equally to all manufacturers delivering new vehicles for sale in NewYork. Several of the surrounding states have adopted, or will adopt, simi-lar requirements. Therefore, the adopted regulation is not expected toimpose a competitive disadvantage on dealerships.
There are no costs associated with the adopted amendments that will be
passed along to dealerships. The adopted amendments are not expected tocause a noticeable change in New York employment, business creation,elimination, or expansion. The adopted amendments are not expected toresult in any additional costs for local and state agencies. No additionalpaperwork or staffing requirements are expected.
The adopted amendments do not impose a local government mandate.
No additional paperwork or staffing requirements are expected. This is nota mandate on local governments pursuant to Executive Order 17. Localgovernments have no additional compliance obligations as compared toother subject entities.
The adopted amendments should not result in any new significant
paperwork requirements for New York vehicle suppliers, dealers orgovernment. New York relies on materials submitted to California for cer-tification, while manufacturers must submit to New York annual sales andcorporate fleet average reports to show compliance with the fleet averagerequirements. The Department believes that most manufacturers currentlyinclude provisions in their ordering mechanisms to ensure that only Cali-fornia certified vehicles are shipped to New York dealers. This has beenthe case since New York first adopted the California LEV program in1992. Implementation of the adopted LEV III and ZEV regulations is notexpected to be burdensome in terms of paperwork to owners/operators ofvehicles.
There are no relevant state or federal rules or other legal requirements
that would duplicate, overlap or conflict with this adopted regulation. Theoption of maintaining the current LEV program without adopting CARB’sLEV III and ZEV amendments was reviewed and rejected due to the Sec-tion 177 identicality requirement. New York State must maintain compli-ance with recent improvements in the California standards in order toachieve the emission reductions necessary for the attainment and mainte-nance of the ozone and carbon monoxide standards, as well as reductionsof GHG emissions.
Federal Tier 3 standards will be available as an alternative for the 2017
through 2025 model years and the adopted LEV III standards attempt toalign with them where possible. There are no equivalent federal ZEV stan-dards available as an alternative.
The adopted LEV III regulatory amendment will take effect for 2017
through 2025 model year vehicles up to 14,000 pounds GVWR. Theadopted ZEV regulatory amendment will take effect for 2018 through2025 model year passenger cars, light-duty trucks, and medium-dutyvehicles.
Revised Regulatory Flexibility Analysis
1. Effect of rule:The New York State Department of Environmental Conservation
(Department) is amending 6 NYCRR Section 200.9 and 6 NYCRR Part218 to incorporate California’s latest low emission vehicle (LEV) III andzero emission vehicle (ZEV) standards, which were adopted by Californiain October 2015, into New York’s existing LEV program. These changesapply to vehicles purchased by consumers, businesses, and governmentagencies in New York and may impact businesses involved in manufactur-ing, selling, leasing, or purchasing passenger cars or trucks.
State and local governments are also consumers of vehicles that will be
regulated under the amendments. Therefore, local governments who ownor operate vehicles in New York State are subject to the same require-ments as owners of private vehicles in New York State; i.e., they mustpurchase California certified vehicles. This rulemaking is not a localgovernment mandate pursuant to Executive Order 17.
The changes are an addition to the current LEV standards. The new mo-
tor vehicle emissions program has been in effect in New York State sincemodel year 1993 for passenger cars and light-duty trucks, with the excep-tion of the 1995 model year, and the Department is unaware of any signif-icant adverse impact to small businesses or local governments as a resultof previous revisions. Section 177 of the federal Clean Air Act requiresNew York to maintain standards identical to California’s in order tomaintain the LEV program.
2. Compliance requirements:There are no specific requirements in the regulation which apply
exclusively to small businesses or local governments. Reporting, recordkeeping and compliance requirements are effective statewide. Automobile
dealers (some of which may be small businesses) selling new cars arerequired to sell or offer for sale only California certified vehicles. Theseamendments will not result in any additional reporting requirements todealerships other than the current requirements to maintain records dem-onstrating that vehicles are California certified. This documentation is thesame documentation already required by the New York State Departmentof Motor Vehicles for vehicle registration. If local governments are buy-ing new fleet vehicles they should make sure that the vehicles are Califor-nia certified. This has been the case for more than two decades in NewYork.
3. Professional services:There are no professional services needed by small business or local
government to comply with the adopted rule.
4. Compliance costs:New York State currently maintains personnel and equipment to
administer the LEV program. It is expected that these personnel will beretained to administer the revisions to this program. Therefore, no ad-ditional costs will be incurred by the State of New York for the administra-tion of this program.
5. Minimizing adverse impact:The LEV III and ZEV amendments are not expected to have any impact
on automobile dealers. Dealerships will be required to ensure that thevehicles they sell are California certified. Starting with the 1993 modelyear, most manufacturers have included provisions in their orderingmechanisms to ensure that only California certified vehicles are shipped toNew York dealers. Implementation of the LEV III and ZEV regulations isnot expected to be burdensome in terms of additional reporting require-ments for dealers.
There will be no adverse impact on local governments who own or oper-
ate vehicles in the state because they are subject to the same requirementsas those imposed on owners of private vehicles. In other words, state andlocal governments will be required to purchase California certifiedvehicles. This rulemaking is not a local government mandate pursuant toExecutive Order 17.
This regulation contains exemptions for emergency vehicles, and
military tactical vehicles and equipment.
6. Small business and local government participation:The Department held a public hearing in Albany August 8, 2016 after
the amendments were proposed. Small businesses and local governmentshad the opportunity to attend this public hearing. Additionally, a publiccomment period was held in which interested parties could submit writtencomments. Comments were received from five individuals.
7. Economic and technological feasibility:The LEV III and ZEV amendments are not expected to have any adverse
impacts on automobile dealers. Dealerships will be required to ensure thatthe vehicles they sell are California certified. Starting with the 1993 modelyear, most manufacturers have included provisions in their orderingmechanisms to ensure that only California certified vehicles are shipped toNew York dealers. Implementation of the regulations is not expected to beburdensome in terms of additional reporting requirements for dealers. Asstated previously, there would be no change in the competitive relation-ship with out-of-state businesses.
The LEV III amendments attempt to minimize adverse impacts on
automobile manufacturers by harmonizing standards with Tier 3 standardsfor the 2017 through 2025 model years which were recently adopted bythe United States Environmental Protection Agency. The LEV III revi-sions to Part 218 will apply to all 2017 through 2025 model year pas-senger cars, light-duty trucks, and medium-duty vehicles up to 14,000pounds gross vehicle weight rating (GVWR).
The ZEV amendments include a revised intermediate volume manufac-
turer (IVM) definition, transition lead time, ZEV percentage requirements,Section 177 State optional pooling provision, credit deficit provision, anda revision to the fast refueling definition. The ZEV revisions to Part 218will apply to all 2018 through 2025 model year passenger cars, light-dutytrucks, and medium-duty vehicles.
8. Cure period:In accordance with NYS State Administrative Procedures Act (SAPA)
Section 202-b, this rulemaking does not include a cure period because theDepartment is undertaking this rulemaking to comply with changes Cali-fornia has made to its vehicle emissions program in order to maintainidenticality with Section 177 of the Clean Air Act.
Revised Rural Area Flexibility Analysis
1. Types and estimated numbers of rural areas:The New York State Department of Environmental Conservation
(Department) is amending 6 NYCRR Section 200.9 and 6 NYCRR Part218 to incorporate California’s latest low emission vehicle (LEV) III andzero emission vehicle (ZEV) standards, which were adopted by Californiain October 2015, into New York’s existing LEV program.
There are no requirements in the regulation which apply only to rural
NYS Register/October 5, 2016 Rule Making Activities
9areas. These changes apply to manufacturers’ requirements for the
manufacture and sale of vehicles sold in New York. The changes to theseregulations may impact businesses involved in manufacturing, selling,purchasing, or repairing passenger cars or trucks.
The changes are additions to the current LEV standards. The new motor
vehicle emission program has been in effect in New York State sincemodel year 1993 for passenger cars as well as light-duty trucks, with theexception of model year 1995, and the Department is unaware of anyadverse impact to rural areas as a result. The beneficial emission reduc-tions from the program accrue to all areas of the state.
2. Reporting, recordkeeping and other compliance requirements; and
professional services:
There are no specific requirements in the regulations which apply
exclusively to rural areas. Reporting, recordkeeping and compliancerequirements apply primarily to vehicle manufacturers, and to a lesserdegree to automobile dealerships. Manufacturers reporting requirementsmirror the California requirements, and are thus not expected to beburdensome. Dealerships do not have reporting requirements, but mustmaintain records to demonstrate that vehicles are California certified. Thisdocumentation is the same as documentation already required by the NewYork State Department of Motor Vehicles for vehicle registration. Thishas been the case for more than two decades in New York.
Professional services are not anticipated to be necessary to comply with
the rules.
3. Costs:The amendments to the LEV III and ZEV standards are not expected to
have any impact on consumers. The LEV III amendments are intended toprovide manufacturers with compliance flexibility by harmonizing theLEV III standards with recently adopted federal Tier 3 emission standardsfor the 2017 through 2025 model years. The standards will apply to pas-senger cars, light-duty trucks, and medium-duty vehicles up to 14,000pounds gross vehicle weight rating (GVWR).
The ZEV amendments include a revised intermediate volume manufac-
turer (IVM) definition, transition lead time, ZEV percentage requirements,Section 177 State optional pooling provision, credit deficit provision, anda revision to the fast refueling definition. The ZEV revisions to Part 218will apply to all 2018 through 2025 model year passenger cars, light-dutytrucks, and medium-duty vehicles.
There are no costs associated with this change that would be passed
along to consumers in the form of higher prices.
4. Minimizing adverse impact:The changes will not adversely impact rural areas.5. Rural area participation:The Department held a public hearing in Albany August 8, 2016 after
the regulation was proposed. Additionally, a public comment period washeld in which interested parties could submit written comments. Com-ments were received from five individuals.
Revised Job Impact Statement
1. Nature of impact:The New York State Department of Environmental Conservation
(Department) is amending 6 NYCRR Section 200.9 and 6 NYCRR Part218 to incorporate California’s latest low emission vehicle (LEV) III andzero emission vehicle (ZEV) standards, which were adopted by Californiain October 2015, into New York’s existing LEV program.
The amendments to the regulations are not expected to adversely impact
jobs and employment opportunities in New York State. New York Statehas had a LEV program in effect since model year 1993 for passenger carsand light-duty trucks, with the exception of model year 1995, and theDepartment is unaware of any significant adverse impact to jobs andemployment opportunities as a result of previous revisions.
2. Categories and numbers affected:The changes to this regulation will not adversely impact businesses
involved in manufacturing, selling or purchasing passenger cars or trucks.Automobile manufacturers are not expected to incur costs in order tocomply with the regulation. Dealerships will be able to sell California cer-tified vehicles to buyers from states bordering New York. Since vehiclesmust be California certified in order to be registered in New York, NewYork residents will not be able to buy non-complying vehicles out-of-state, but may be able to buy complying vehicles out-of-state. These busi-nesses compete within the state and generally are not subject to competi-tion from out-of-state businesses. Therefore, the regulation is not expectedto impose a competitive disadvantage on affiliated businesses, and therewould be no change from the current relationship with out-of-statebusinesses.
3. Regions of adverse impact:None.4. Minimizing adverse impact:The regulations are not expected to have adverse impacts on automobile
dealers. Dealerships will be required to ensure that the vehicles they sellare California certified. Starting with the 1993 model year, most manufac-turers have included provisions in their ordering mechanisms to ensure
that only California certified vehicles are shipped to New York dealers.The implementation of the regulations is not expected to be burdensomein terms of additional reporting requirements for dealers. There would beno change in the competitive relationship with out-of-state businesses.
The LEV III amendments attempt to minimize adverse impacts on
automobile manufacturers by harmonizing standards with Tier 3 standardsfor the 2017 through 2025 model years which were recently adopted bythe United States Environmental Protection Agency. The LEV III revi-sions to Part 218 will apply to all 2017 through 2025 model year pas-senger cars, light-duty trucks, and medium-duty vehicles up to 14,000pounds gross vehicle weight rating (GVWR).
The ZEV amendments include a revised intermediate volume manufac-
turer (IVM) definition, transition lead time, ZEV percentage requirements,Section 177 State optional pooling provision, credit deficit provision, anda revision to the fast refueling definition. The ZEV revisions to Part 218will apply to all 2018 through 2025 model year passenger cars, light-dutytrucks, and medium-duty vehicles.
5. Self-employment opportunities:None that the Department is aware of at this time.
Initial Review of Rule
As a rule that requires a RFA, RAFA or JIS, this rule will be initially
reviewed in the calendar year 2019, which is no later than the 3rd year af-ter the year in which this rule is being adopted.
Assessment of Public Comment
Public Health and Environmental QualityComment 1: The People of the State of NY would be better served if
ALL motor vehicle emission standards were removed together with theexcessive fees that go with them. Commenter 1.
Comment 2: We certainly don’t need Californias (sic) standards here.
Do you see the smog here that you see in LA? California goes overboardon nearly all environmental issues. Commenter 2.
Response to Comment s1&2 :T h e Department strongly disagrees with
these comments. Several areas of New York State still do not meet federalhealth based national ambient air quality standards (NAAQS) for ozoneand have been categorized as non-attainment areas. On-road vehicles inNew York State emit a substantial portion of ozone precursors. TheDepartment has the obligation to regulate and mitigate vehicle emissionsto safeguard the health of State residents and protect the State’senvironment. Motor vehicle emission standards have been a tremendousand cost effective success in New York State. No “fees” are associatedwith vehicle emission standards as a result of this rulemaking.
MiscellaneousComment 3: Why are the vehicles from model year 1995 seemingly
exempt from this change? Possibly a typo or omission? Commenter 4.
Response to Comment 3: New York State was pre-empted by federal
law from implementing California emission standards for the 1995 modelyear as a result of litigation. 1995 model year vehicles delivered for sale inNew York State were only required to comply with federal emissionstandards.
Comment 4: Also, if I own a 1994 Z28, does it comply with the new
regs, if enacted? If not, it looks like I would have to junk a perfectly goodand almost classic car. This seems over the top to me. I don’t agree withretroactively “outlawing” a car that has been legal for… Commenter 4.
Response to Comment 4: The proposed low emission vehicle (LEV)
and zero emission vehicle (ZEV) standards apply only to 2017 through2025 model year vehicles and are not retroactive. The standards do not“outlaw” vehicles currently registered in New York State. You will nothave to scrap your vehicle as a result of the proposed regulations.
Comment 5: The term Zero Emission Vehicle Should not be used. There
are emissions associated with any vehicle. Even if it is electric-powered.This term suggests to those who do (sic) understand the entire process thatsuch vehicles actually result in zero emissions to the air. That is not true,and is very misleading to the public. The energy used to power the vehiclegenerates emissions, the production of the materials used to make the ve-hicle generates emissions. The end-of-service life process for the vehicleand any of its components, whether it be reuse, recycling, or disposal –results in emissions. Please do not mislead the general public. Commenter5.
Response to Comment 5: The term Zero Emission Vehicle is a term of
art used to denote a vehicle that has no tailpipe emissions and to differenti-ate it from conventional vehicles that have tailpipe emissions. The Depart-ment agrees that all vehicles have emissions associated with their produc-tion, use, and scrapping. These emissions are referred to as well-to-wheelsemissions. Emissions from ZEVs occur upstream of the vehicle and aregenerally associated with power generation facilities. These facilities areregulated under the Department’s stationary source programs and arerequired to have operating permits and emissions controls in place andoperating. Conventional vehicles have emissions associated with fuel pro-
NYS Register/October 5, 2016 Rule Making Activities
10duction, refining, delivery, and vehicle operation. Upstream emissions re-
lated to conventional vehicles are also regulated under various stationarysource programs. Tailpipe emissions from conventional vehicles aremitigated through certification and in-use emission standards, as well asonboard emissions control technologies.
Beyond the Scope of This RegulationComment 6: Please be advised this is not California. Commenter 1.Response to Comment 6: Thank you for your comment.Comment 7: When you start cracking down on Semi trucks and buses
I’ll agree to different standards for personal vehicles. Commenter 2.
Response to Comment 7: This comment is outside the scope of the
proposed revisions to Part 218. Emissions from heavy-duty trucks and
buses are regulated under Part 218 and these vehicles are also subject toroadside emission inspections and anti-idling restrictions under Part 217.
Comment 8: This sounds like one of the governors (sic) ideas to say he
has the most stringent laws etc. etc.. Just another expense do (sic) to someenvironmentalist wild idea like the one to paint the guard rails brown inthe Adirondacks only to find out they rust and are unsafe and cost us mil-lions to replace back. This State is over regulated as it is and one of themost poorly run. In some cases the regulators are now in jail. Don't fallinto the political/environmental pit. They want clean air etc. but when itcomes to things like windmills, oh no, not around me. I am 73 years of ageand have watched this nonsense for some time. You want to make morestringent laws? Go after the big guns, or is that to (sic) difficult? Followthe money. Commenter 2.
Response to Comment 8: Thank you for your comment but it is outside
the scope of this rulemaking.
Comment 9: Also some legislation and enforcement for idling vehicles.
I am always amazed by the people who leave empty vehicles running withair or heat on so is (sic) comfy when they return from whatever storeetc….and the same with a passenger sitting in it. Are we THAT frail?Thanks wendy dwyer ( member PAUSENERGY.org). Commenter 3.
Response to Comment 9: This comment is outside the scope of this
rulemaking. However, please note that New York State has anti-idleregulations incorporated in Part 217-3. The anti-idle regulations apply toall vehicles over 8,500 pounds gross vehicle weight rating and prohibitidling for more than 5 minutes unless specifically exempted.
Comment 10: I am planning to get a Chevy Bolt in 2018! Want to give
it a year of ‘working out any kinks”. Commenter 3.
Response to Comment 10: Thank you for your comment but it is outside
the scope of this rulemaking.
List of Commenters1. Robert Folchetti2. Jim Murray3. Wendy Dwyer4. biggeo555@twcny.rr.com5. Mark G Marsack, PE
Department of Financial Services
EMERGENCY
RULE MAKING
Public Retirement Systems
I.D. No. DFS-40-16-00002-E
Filing No. 888
Filing Date: 2016-09-20
Effective Date: 2016-09-20
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following action:
Action taken: Amendment of Part 136 (Regulation 85) of Title 11
NYCRR.
Statutory authority: Financial Services Law, sections 202 and 302; Insur-
ance Law, sections 301, 314, 7401(a) and 7402(n)
Finding of necessity for emergency rule: Preservation of general welfare.
Specific reasons underlying the finding of necessity: The Second Amend-
ment to 11 NYCRR 136 (Insurance Regulation 85), effective November19, 2008, established new standards of behavior with regard to investmentof the assets of the New York State Common Retirement Fund (“Fund”),conflicts of interest, and procurement. In addition, it created new audit andactuarial committees, and greatly strengthened the investment advisorycommittee. The Second Amendment also set high ethical standards,strengthened internal controls and governance, enhanced the operational
transparency of the Fund, and strengthened supervision by the Department.
Nevertheless, recent events surrounding how placement agents conduct
business on behalf of their clients with regard to the Fund compel the Su-
perintendent to conclude that the mere strengthening of the Fund’s controlenvironment is insufficient to protect the integrity of the state employees’retirement systems. Rather, only an immediate ban on the use of place-ment agents will ensure sufficient protection of the Fund’s members andbeneficiaries and safeguard the integrity of the Fund’s investments.
This regulation was previously promulgated on an emergency basis on
June 18, 2009, September 16, 2009, January 5, 2010, April 2, 2010, May28, 2010, July 29, 2010, September 23, 2010, November 19, 2010, Janu-ary 18, 2011, March 21, 2011, May 19, 2011, August 16, 2011, November10, 2011, February 7, 2012, May 7, 2012, August 3, 2012, October 31,2012, January 28, 2013, April 26, 2013, July 24, 2013, October 21, 2013,January 17, 2014, April 16, 2014, July 14, 2014, October 10, 2014, Janu-ary 7, 2015, April 6, 2015, July 3, 2015, September 30, 2015, December28, 2015, March 25, 2016, and June 22, 2016.
Subject: Public Retirement Systems.
Purpose: To ban the use of placement agents by investment advisors
engaged by the state employees' retirement systems.
Text of emergency rule: Section 136-2.2 is amended to read as follows:
§ 136-2.2 Definitions.The following words and phrases, as used in this Subpart, unless a dif-
ferent meaning is plainly required by the context, shall have the followingmeanings:
[(a) Retirement system shall mean the New York State and Local Em-
ployees’ Retirement System and the New York State and Local Police andFire Retirement System.]
[(b) Fund shall mean the New York State Common Retirement Fund, a
fund in the custody of the Comptroller as trustee, established pursuant toSection 422 of the Retirement and Social Security Law, which holds theassets of the retirement system.]
[(c)](a)Comptroller shall mean the Comptroller of the State of New
York in his capacity as administrative head of the Retirement System andthe sole trustee of the [fund] Fund .
[(d) OSC shall mean the Office of the State Comptroller.][(e)](b)Consultant or advisor shall mean any person (other than an
OSC employee) or entity retained by the [fund] Fund to provide technical
or professional services to the [fund] Fund relating to investments by the
[fund] Fund , including outside investment counsel and litigation counsel,
custodians, administrators, broker-dealers, and persons or entities thatidentify investment objectives and risks, assist in the selection of [money]investment managers, securities, or other investments, or monitor invest-
ment performance.
(c) Family member shall mean any person living in the same household
as the Comptroller, and any person related to the Comptroller within thethird degree of consanguinity or affinity.
(d) Fund shall mean the New York State Common Retirement Fund, a
fund in the custody of the Comptroller as trustee, established pursuant toSection 422 of the Retirement and Social Security Law (“RSSL”), whichholds the assets of the Retirement System.
[f](e)Investment manager shall mean any person (other than an OSC
employee) or entity engaged by the Fund in the management of part or allof an investment portfolio of the [fund] Fund . “Management” shall
include, but is not limited to, analysis of portfolio holdings, and thepurchase, sale, and lending thereof. For the purposes hereof, any invest-ment made by the Fund pursuant to RSSL § 177(7) shall be deemed to bethe investment of the Fund in such investment entity (rather than in the as-sets of such investment entity).
(f) Investment policy statement shall mean a written document that,
consistent with law, sets forth a framework for the investment program ofthe Fund.
(g) OSC shall mean the Office of the State Comptroller.[(g)] (h)Placement agent or intermediary shall mean any person or
entity , including registered lobbyists, directly or indirectly engaged and
compensated by an investment manager (other than [an] a regular em-
ployee of the investment manager) to promote investments to or solicit
investment by [assist the investment manager in obtaining investments by
the fund, or otherwise doing business with] the [fund] Fund , whether
compensated on a flat fee, a contingent fee, or any other basis. Regularemployees of an investment manager are excluded from this definition un-less they are employed principally for the purpose of securing or influenc-
ing the decision to secure a particular transaction or investment by theFund. [obtaining investments or providing other intermediary services
with respect to the fund.] For purpose of this paragraph, the term “em-
ployee” shall include any person who would qualify as an employee underthe federal Internal Revenue Code of 1986, as amended, but shall notinclude a person hired, retained or engaged by an investment manager toNYS Register/October 5, 2016 Rule Making Activities
11