RULE MAKIN G
ACTIVITIES
Each rule making is identified by an I.D. No., which consists
of 13 characters. For example, the I.D. No.AAM-01-96-00001-E indicates the following:
AAM -the abbreviation to identify the adopting agency
01 -the State Register issue number
96 -the year00001 -the Department of State number, assigned upon
receipt of notice.
E -Emergency Rule Making—permanent action
not intended (This character could also be: Afor Adoption; P for Proposed Rule Making; RPfor Revised Rule Making; EP for a combinedEmergency and Proposed Rule Making; EA foran Emergency Rule Making that is permanentand does not expire 90 days after filing.)
Italics contained in text denote new material. Brackets
indicate material to be deleted.
State Board of Elections
PROPOSED RULE MAKING
NO HEARING(S) SCHEDULED
Routine Testing of Voting Systems
I.D. No. SBE-17-16-00009-P
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action: Amendment of section 6210.2 of Title 9 NYCRR.
Statutory authority: Election Law, sections 3-102(1), 7-202(3) and
7-206(3)
Subject: Routine testing of voting systems.
Purpose: To provide for testing of voting machines not less than once per
year.
Text of proposed rule: Part 6210.2 of Subtitle V of Title 9 of the Official
Compilation of Codes, Rules and Regulations of the State of New York isamended to read as follows:
§ 6210.2 Routine [maintenance and] testing of voting systems(a) Testing of all voting systems shall be conducted by the county board
before the use of the system in any election and at such other times of theyear as prescribed by these regulations. Testing procedures shall be ap-proved by the State Board. The voting system shall be tested to determinethat the system is functioning correctly and that all system equipment,including but not limited to hardware, memory, and report printers, areproperly integrated with the system and are capable of properly perform-ing in an election. Testing, other than pre-qualification testing, shall beconducted by casting manual votes and may include the casting ofsimulated votes.
(b)All voting equipment owned by a county board of election shall be
tested at least once every calendar year. All other voting equipment thathas not undergone pre-election testing prior to use in any election in the
calendar year shall be tested no later than December 31st of the calendaryear. Such tests are in [In] addition to vendor-prescribed maintenance
tasks and diagnostic tests, [tests of voting equipment shall be] conductedby the county board [, on each piece of equipment owned by the countyboard. Such testing shall be administered periodically and be completedduring the following periods during each year that the equipment is in use:
(1) January 15-April 15;(2) April 16-July 15;(3) July 16-September 15; or(4) September 16-November 15].
Whenever a voting system is to be tested for pre-qualification purposes,
such test must be conducted while the voting system is in election mode.Votes cast for pre-qualification test purposes shall be manually cast usingall of the devices available to voters on election day (i.e.: audio, key padsand or pneumatic switches, and/or alternate language displays).
(c) Testing shall include the comparison of software installed on the
delivered system to certified software, via the use of a Secure HashSignature Standard (SHS) Validation Program, as described in Federal In-formation Processing Standards Publication 180-2 issued by the NationalInstitute Standards Technology (This publication is available electroni-cally by accessing [http:// csrc.nist.gov/publications/] the NIST website .
Alternatively, copies of NIST computer security publications are availablefrom: National Technical Information Service (NTIS), 5285 Port RoyalRoad, Springfield, VA 22161.)
Testing shall consist of the re-calibration of equipment, as appropriate,
pursuant to recommendations made in vendor’s maintenance documenta-tion, and the casting of a test deck by voting the minimum number of bal-lots, determined pursuant to the requirements of section 6210.8 of thisPart, to ensure that all voting positions for each ballot configuration aretested. Votes cast for the purposes of this section shall be cumulative bal-lots cast on each piece of equipment [during each of the prescribed periodsoutlined].
(1) If the system does not accurately count the votes from the test
deck cast manually, simulated, or both, (aside from those that weredeliberately designed to fail), or the calibration test, the cause or causesfor the error or errors shall be ascertained and corrected. The voting systemshall be retested until there are two consecutive error-free tests before thesystem is approved for use in the count of actual ballots. The commission-ers of the county board or their designees shall certify that they havereviewed and verified the results of said testing. The summary results ofall tests, including all inaccurate test results, their causes and the actionstaken to correct them, as well as the results of all errorless counts, shall beentered upon the maintenance log. Maintenance logs are to be kept as a
permanent record of the county board. Allother documentation and/or
test decks, simulation cartridges and any test data including but not limitedto copies of ballot programming used for required maintenance tests shallbe maintained in secure locked storage for two years after the election,pursuant to Election Law section 3-222.
[(2) Maintenance logs are to be kept as a permanent record of the
county board.]
(d) [During the period including July 16 - September 15 (and in years
when a presidential primary is conducted, during the January 15 - April 15period),] For pre-qualification testing of a system to be used in a primary
election, the test ballot format for each piece of equipment assigned for
use in said primary election shall consist of each primary ballot configura-
tion as certified by the county board [, if said equipment is to be utilized ina primary election]. The voting system shall be cleared of all votes and aprinted report shall be produced by the system, to verify the correct ballotconfiguration and election configuration, and to confirm that all votingpositions are at zero. Ballots cast for the purposes of this test shall bemanually cast and a printed tabulation report shall be produced. Thesystem shall again be cleared of all votes and a printed report shall beproduced by the system to confirm that all voting positions are at zero.Each officer or board charged with the duty of preparing voting machines
1for use in any election shall give written notice pursuant to Election Law
section 7-128 and section 7-207, by first class mail, to the State Board andto all candidates, except candidates for member of the county committee,who are lawfully entitled to have their names appear thereon, of the timewhen, and the place where, they may inspect the voting machines to beused for such election. [Each officer or board charged with the duty of
preparing voting machines for use in any election shall give written no-tice, by first class mail, to the State Board and to all candidates, exceptcandidates for member of the county committee, who are lawfully entitled
to have their names appear thereon, of the time when, and the place where,they may inspect the voting machines to be used for such election.] Thecandidates or their designated representatives may appear at the time andplace specified in such notice to inspect such machines, provided,however, that the time so specified shall be not less than two days prior tothe date of the election.
(e) For the period between ballot certification and seven days before the
general election, the test ballot format for each piece of equipment shallconsist of each general election ballot configuration as certified by thecounty board. The voting system shall be cleared of all votes and a printedreport shall be produced by the system, to verify the correct ballotconfiguration and election configuration, and to confirm that all votingpositions are at zero. Ballots cast for the purposes of this test shall bemanually cast and a printed tabulation report shall be produced. Thesystem shall again be cleared of all votes and a printed report shall beproduced by the system to confirm that all voting positions are at zero.Each officer or board charged with the duty of preparing voting machinesfor use in any election shall give written notice pursuant to Election Lawsection 7-128 and section 7-207, by first class mail, to the State Board andto all candidates, except candidates for member of the county committee,who are lawfully entitled to have their names appear thereon, of the timewhen, and the place where, they may inspect the voting machines to beused for such election. The candidates or their designated representativesmay appear at the time and place specified in such notice to inspect suchmachines, provided, however, that the time so specified shall be not lessthan two days prior to the date of the election.
(f) In addition to any vendor provided training, the State Board shall
provide training on routine maintenance and testing of voting systems tocounty board personnel responsible for voting systems. The State Boardshall provide sample tests to be utilized by each county board. The StateBoard may revise said testing format, based upon its audit and review.
(g) All results of [each] any testing [routine maintenance, test and/or] in
addition to pre-qualification test ing, including the final errorless test, shall
be certified as accurate by the county board commissioners or theirdesignees, and such certification shall be entered upon the maintenancelog for each such piece of equipment, together with any other informationprescribed in said log by the State Board.
(h) The county board shall certify to the State Board, the completion of
any [each routine maintenance] , testing [and/or] including pre-
qualification test ing. All documentation and/or test decks, simulation car-
tridges and any test data including but not limited to copies of ballotprogramming used for required maintenance tests shall be maintained insecure locked storage for two years after the election, pursuant to ElectionLaw section 3-222. Such certification shall be on a form prescribed andfurnished by the State Board, and shall be accompanied by copies of eachmaintenance log.
(i) Each county shall keep a detailed log of maintenance performance
and testing procedures. Such logs shall be in a format provided by theState Board and the same shall have been reviewed by the vendor.
(j) Such logs shall be provided upon completion of any testing, includ-
ing pre-qualification testing [quarterly to] or as requested by the State
Board, for their review and inspection, and shall be made available to thepublic, upon request .
(k) The State Board may, upon review of the maintenance logs, require
further testing of any such piece of equipment or may remove a piece ofequipment from use in an election until further examination and testinghas been completed, or may rescind certification pursuant to section6209.8 of the State Board regulations.
(1) The State Board may reinstate the certification if the equipment
passes these further tests, and a review of the maintenance logs supportssuch reinstatement.
(2) County boards shall make the system or equipment available to
the State Board for any such additional testing and shall provide such as-sistance as may be deemed necessary.
(l) During the initial time period in which such system or equipment is
used, to include a primary election and a general election, the State Boardshall assist in the routine maintenance, testing and the operation of thevoting machines or systems. Such assistance shall include but not belimited to:
(1) election configuration and ballot configuration related to voting
system testing and use;(2) pre-qualification and post-election tests;
(3) election day support, via phone, email, facsimile or on-site, as
necessary;
(4) post-election support, to include recanvass, challenges, and audit
conducted pursuant to Election Law section 9-211;
(5) staff training;(6) defining personnel requirements and tasks;(7) defining procedures for pre-qualification, post-election, and main-
tenance tests; and
(8) defining procedures for canvassing and recanvassing votes cast in
an election.
(m) During successive years, the State Board, whenever it deems neces-
sary, or at the request of a county board, may assist in any or all aspects ofthe operation of the system.
Text of proposed rule and any required statements and analyses may be
obtained from: Brian L. Quail, Esq., New York State Board of Elections,
40 North Pearl Street, Ste. 5, Albany, New York 12207, (518) 474-2063,email: brian.quail@elections.ny.gov
Data, views or arguments may be submitted to: Same as above.
Public comment will be received until: 45 days after publication of this
notice.
Regulatory Impact Statement
1. Statutory authority: Election Law 3-102[1]; 7-202[3]; 7-206[3]
requires the Boards of Elections to provide routine testing of votingsystems, and this requires rules for implementation. Election Law3-102[1]; 7-202[3]; 7-206[3] expressly authorizes the New York StateBoard of Elections to promulgate such rules and regulations.
2. Legislative objectives: The legislative objective furthered by the
regulation is to provide an efficient, reliable voting machine testingprotocol to ensure accurate tabulation of votes cast.
3. Needs and benefits: The legislature has mandated that the State Board
of Elections promulgate procedures for the testing of voting equipment toensure the accuracy of election result tabulation. This regulation requirestesting of voting machines not used in an election to still occur at leastonce per year to ensure an accurate accounting of the condition of all vot-ing equipment. The testing regimen continues to require pre-election test-ing on all units to be used in the election to ensure accurate functioning ofvoting machines in all elections.
4. Costs:a. This regulatory amendment does not increase costs to regulated par-
ties as the regulation reflects only existing statutory obligations andeliminates certain unnecessary testing.
b. There are no new agency or state costs created by this rulemaking.c. This assessment of cost is based on the nature of the regulation.d. This regulatory amendment does not create any new costs as it does
not impose any new regulatory burden or compliance activity.
5. Local government mandates: There are no additional responsibilities
imposed by this rule upon any county, city, town, village, school district,fire district or other special district.
6. Paperwork: This proposed rule imposes no new documentation,
reporting or regulatory filing requirements.
7. Duplication: There is no jurisdictional duplication created by this
rulemaking.
8. Alternatives: This rulemaking amends the existing regulations for
voting machine testing. There are no known alternatives, but public com-ment will be accepted.
9. Federal standards: Not applicable.10. Compliance schedule: The rule provides no new compliance
schedules and will go into effect upon publication of the Notice of Adop-tion in the New York State Register.
Regulatory Flexibility Analysis
Under SAPA, when it is apparent from the nature and purpose of the rule
that it will not have a substantial adverse impact on small business or localgovernments, the agency may file a Statement in Lieu of. This rulemak-ing, as is apparent from its nature and purpose, will not have an adverseimpact on jobs or employment opportunities. The rule provides for amodification to the process for the testing of voting machines. Thisrulemaking imposes no regulatory burden on any facet of small businessor local government.
Rural Area Flexibility Analysis
Under SAPA 202-bb(4)(a), when a rule does not impose an adverse eco-
nomic impact on rural areas and the agency finds it would not imposereporting, recordkeeping, or other compliance requirements on public orprivate entities in rural areas, the agency may file a Statement in Lieu of.This rule has statewide application, amending the rules for routine testingof voting systems as provided by Election Law section 3-102[1]; 7-202[3];7-206[3]. The proposed rule does not create any new reporting, record-NYS Register/April 27, 2016 Rule Making Activities
2keeping or other increased compliance requirements. Accordingly, this
rule has no adverse impacts on any area.
Job Impact Statement
Under SAPA 201-a(2)(a), when it is apparent from the nature and purpose
of the rule that it will not have a substantial adverse impact on jobs andemployment opportunities, the agency may file a Statement in Lieu of.This rulemaking, as is apparent from its nature and purpose, will not havean adverse impact on jobs or employment opportunities. The rule providesfor modifying the process for testing voting machines. This rulemakingimposes no regulatory burden on any facet of job creation or employment.
Department of Environmental
Conservation
PROPOSED RULE MAKING
HEARING(S) SCHEDULED
Croton Gorge Unique Area
I.D. No. ENV-17-16-00001-P
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following proposed rule:
Proposed Action: Addition of section 190.10(g) to Title 6 NYCRR.
Statutory authority: Environmental Conservation Law, sections
1-0101(3)(b), 3-0301(1)(b), (2)(m), 9-0105(1) and (3)
Subject: Croton Gorge Unique Area.
Purpose: To protect public safety and natural resources on the Croton
Gorge Unique Area.
Public hearing(s) will be held at: 7:00 p.m., May 18, 2016 at Ossining
Public Library, 53 Croton Ave., Ossining, NY.
Interpreter Service: Interpreter services will be made available to hearing
impaired persons, at no charge, upon written request submitted within rea-sonable time prior to the scheduled public hearing. The written requestmust be addressed to the agency representative designated in the paragraphbelow.
Accessibility: All public hearings have been scheduled at places reason-
ably accessible to persons with a mobility impairment.
Text of proposed rule: A new subdivision (g) is added to 6 NYCRR sec-
tion 190.10 to read as follows:
(g) Croton Gorge Unique Area. Description: For the purposes of this
section, Croton Gorge Unique Area, referred to in this section as “thearea”, means all those state lands located in Westchester County in theTown of Cortlandt, in a portion of the Cortlandt Patent.
(1) All camping shall be prohibited.(2) Public use of the property will be allowed from sunrise to sunset
only.
(3) The use of any type of fire shall be prohibited including the use of
charcoal or gas grills.
(4) Possession or consumption of alcoholic beverages shall be
prohibited.
Text of proposed rule and any required statements and analyses may be
obtained from: Jeff Wiegert, Division of Lands and Forests, 21 South Putt
Corners Road, New Paltz, NY 12561, (845) 256-3084, email:jeffrey.wiegert@dec.ny.gov
Data, views or arguments may be submitted to: Same as above.
Public comment will be received until: 45 days after publication of this
notice.
Additional matter required by statute: A Short EAF has been prepared in
compliance with Article 8 of the Environmental Conservation Law.
Regulatory Impact Statement
1. Statutory authorityEnvironmental Conservation Law (“ECL”) section 1-0101(3)(b) directs
the Department of Environmental Conservation (Department) to guarantee“that the widest range of beneficial uses of the environment is attainedwithout risk to health or safety, unnecessary degradation or other undesir-able or unintentional consequences.” ECL section 3-0301(1)(b) gives theDepartment the responsibility to “promote and coordinate managementof...land resources to assure their protection, enhancement, provision, al-location, and balanced utilization...and take into account the cumulativeimpact upon all such resources in promulgating any rule or regulation.”ECL section 9-0105(1) authorizes the Department to ‘‘[e]xercise care,
custody, and control’’ of state lands. ECL section 3-0301(2)(m) authorizesthe Department to adopt rules and regulations “as may be necessary, con-venient or desirable to effectuate the purposes of [the ECL],” and ECL9-0105(3) authorizes the Department to “[m]ake necessary rules andregulations to secure proper enforcement of [ECL Article 9].”
2. Legislative objectivesIn adopting various articles of the ECL, the legislature has established
that forest, fish, and wildlife conservation are policies of the state and has
empowered the Department to exercise care, custody, and control overcertain state lands and other real property. Consistent with these statutoryinterests, the proposed regulations will protect natural resources and thesafety and welfare of those who engage in recreational activities withinthe Croton Gorge Unique Area. The Department has also been authorizedby the state legislature to manage state owned lands (see ECL section9-0105(1)), and to promulgate rules and regulations for the use of suchlands (see ECL sections 3-0301(2)(m) and 9-0105(3)).
3. Needs and benefitsThe Croton Gorge Unique Area (“the Area”) is located in the town of
Cortlandt in Westchester County and was acquired in 1978 by the statebecause of its natural beauty. As early as 1965, Westchester County identi-fied this stretch of the Croton River for public acquisition in its open spaceprogram. In 1974, discussions involving the Department, WestchesterCounty officials, the Nature Conservancy, and various local and regionalconservationists culminated in the formal submission of a nomination of aportion of the Croton Gorge for acquisition by the Department withEnvironmental Quality Bond Act funds under the unique category forinclusion in the State Nature and Historical Preserve. In 1976, the Boardof the State Nature and Historical Preserve Trust advised the commis-sioner of the Department of Environmental Conservation that “the CrotonRiver and Gorge from the New Croton Dam to the River’s confluencewith the Hudson qualifies as a “Unique Area” in the natural beauty cate-gory; that the Board recommend that the commissioner explore and reporton means of protecting the entire Gorge either by State, County, private ormunicipal acquisition or other method of protection; and that as a first stepthe commissioner acquire by easement or fee title up to 40 acres in thesection designated… .” Original parcels identified for acquisition includedlands owned by (a) the Village of Croton-on-Hudson, (b) the Union FreeSchool District #2, (c) Towns of Cortlandt and Yorktown, and (d) threeprivate landowners. An internal memo described the acquisition as “oneof the grandest hemlock gorges in the State, and the finest immediatelyadjacent to the Tidal Hudson. Despite the propinquity to New York City,the tract is largely undisturbed.” The same memo proposed that an emer-gency action was required “in order to secure a crucial portion fromadverse development.”
In 1978, the Department acquired 19.2 acres in three separate parcels
east of the Croton River in the Town of Cortlandt, from two willing privatesellers. The 19.2 acre acquisition by the Department became the CrotonGorge Unique Area. Part 190 of Title 6 of the Official Compilation ofCodes, Rules and Regulations of the State of New York (“6 NYCRR”)contain the general regulations concerning the public’s use of state lands,but it does not adequately address the majority of management issuesconfronting this property including overuse, alcohol consumption,campfires, and camping.
Due to the large influx of public users to this small property in the sum-
mer months, there is degradation to the natural resources of the Area andan increase in public safety issues. These include the trampling of vegeta-tion resulting in areas of compacted soil and bare ground, damage to treesresulting from limb removal for fire use, littering, and graffiti. In addition,trespassing onto neighboring private properties is an issue. In the case ofwildfire, efforts to contain a blaze by local first responders would behampered with the lack of fire hydrants near the property and the ruggedterrain.
The proposed regulations will improve public safety by prohibiting the
consumption of alcohol and the use of fire on the property. By prohibitingcamping and restricting hours of use, it is anticipated that litter, trespassand other degradation problems will be reduced or eliminated. In contrastto other similar regulations, the proposed regulations specify the start andend of hours of public use as sunrise and sunset, rather than times of day.This language will help to ensure that users leave the area while there isstill sufficient daylight to safely navigate the steep trail that is the onlymeans of ingress and egress from the property.
Local government is very supportive of this regulatory proposal and are
expected to assist the Department with enforcement. Local law enforce-ment and public safety officials are the first responders to incidents on thisproperty. A Task Force composed of local municipal leaders, neighbors,law enforcement and public safety officials has been formed to addressmanagement issues on the Croton Gorge Unique Area. The Task Forcehas requested that the Department promulgate regulations to increase pub-lic safety and address overuse while still providing a quality outdoorNYS Register/April 27, 2016 Rule Making Activities
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