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					                RULE MAKING
                               ACTIVITIES
Each rule making is identified by an I.D. No., which consists             Assessment of Public Comment
                                                                          The agency received no public comment.
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 year                                                                   Office of Alcoholism and
00001    -the Department of State number, assigned upon re-                          Substance Abuse Services
          ceipt of notice
E        -Emergency Rule Making—permanent action not
          intended (This character could also be: A for Adop-                                  NOTICE OF ADOPTION
          tion; P for Proposed Rule Making; RP for Revised
                                                                          Tobacco Free Policy for All Certified or Funded Providers
          Rule Making; EP for a combined Emergency and
                                                                          I.D. No. ASA-11-08-00002-A
          Proposed Rule Making; or EA for an Emergency                    Filing No. 438
          Rule Making that is permanent and does not expire               Filing date: May 13, 2008
          90 days after filing.)                                          Effective date: July 24, 2008
Italics contained in text denote new material. Brackets indi-             PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cate material to be deleted.                                              cedure Act, NOTICE is hereby given of the following action:
                                                                          Action taken: Addition of Part 856 to Title 14 NYCRR.
                                                                          Statutory authority: Mental Health Law, sections 19.07(e), 19.09(b),
                                                                          19.21(b), (d), 32.01 and 32.07(a)
                                                                          Subject: Tobacco free services.
                                                                          Purpose: To establish a tobacco free services and provide treatment for
     Department of Agriculture and                                        nicotine dependency in all certified and/or funded programs.
              Markets                                                     Text of final rule: PART 856
                                                                              TOBACCO-FREE SERVICES
                                                                              Section 856.1 Background and intent
                                                                              (a) To reduce addiction, illness and death caused by tobacco products.
                   NOTICE OF ADOPTION                                         (b) To provide a healthy environment for staff, patients, volunteers and
                                                                          visitors to entities organized and operating pursuant to the provisions of
Required Procedures for Weights and Measures Officials                    this Title and certified and/or funded by the Office of Alcoholism and
I.D. No. AAM-43-07-00001-A                                                Substance Abuse Services (“the Office”) as a provider of prevention,
Filing No. 377                                                            treatment or recovery services for alcoholism, substance abuse, chemical
Filing date: May 7, 2008                                                  dependence and/or gambling.
Effective date: May 28, 2008                                                  (c) To establish tobacco-free services in a tobacco-free environment.
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                   Section 856.2 Legal base
cedure Act, NOTICE is hereby given of the following action:                   (a) Section 19.07(e) of the Mental Hygiene Law authorizes the Com-
                                                                          missioner of the Office of Alcoholism and Substance Abuse Services (“the
Action taken: Addition of section 200.14 to Title 1 NYCRR.
                                                                          Commissioner”) to adopt standards including necessary rules and regula-
Statutory authority: Agriculture and Markets Law, sections 16, 18, 197-   tions pertaining to chemical dependence services.
b(3)(a)                                                                       (b) Section 19.09(b) of the Mental Hygiene Law authorizes the Com-
Subject: Procedures for weights and measures officials to determine ac-   missioner to adopt regulations necessary and proper to implement any
curacy of prices of merchandise offered for sale at retail stores.        matter under his or her jurisdiction.
Purpose: To incorporate by reference “Examination Procedure for Price         (c) Section 19.21(b) of the Mental Hygiene Law requires the Commis-
Verification”, as set forth in NIST Handbook 130.                         sioner to establish and enforce certification, inspection, licensing and
Text or summary was published in the notice of proposed rule making,      treatment standards for alcoholism, substance abuse, and chemical depen-
I.D. No. AAM-43-07-00001-P, Issue of October 24, 2007.                    dence facilities.
Final rule as compared with last published rule: No changes.                  (d) Section 19.21(d) of the Mental Hygiene Law requires the Commis-
Text of rule and any required statements and analyses may be              sioner to promulgate regulations which establish criteria to assess alco-
obtained from: Ross Andersen, Department of Agriculture and Markets,      holism, substance abuse, and chemical dependence treatment effectiveness
10B Airline Dr., Albany, NY 12235, (518) 457-3146, e-mail: ross.ander-    and to establish a procedure for reviewing and evaluating the performance
sen@agmkt.state.ny.us                                                     of providers of services in a consistent and objective manner.

                                                                                                                                                    1
Rule Making Activities                                                                                              NYS Register/May 28, 2008

    (e) Section 32.01 of the Mental Hygiene Law authorizes the Commis-                The change consists of adding a subsection to the regulation referenc-
sioner to adopt any regulation reasonably necessary to implement and              ing the discharge criteria contained in Part 823.12(b) which was inadver-
effectively exercise the powers and perform the duties conferred by Article       tently left out of the original submission because of a typographical error.
32 of the Mental Hygiene Law.                                                     Assessment of Public Comment
    (f) Section 32.07(a) of the Mental Hygiene Law authorizes the Commis-
                                                                                      Positive reactions to the policy:
sioner to adopt regulations to effectuate the provisions and purposes of
Article 32 of the Mental Hygiene Law.                                                 The American Cancer Society applauded the regulation and confirmed
    Section 856.3 Applicability                                                   the research and statistical data that shows tobacco dependence is a major
    (a) This Part applies to any entity (“the service”) organized and             health care issue, especially among the population served by OASAS.
operating pursuant to the provisions of this Title and certified and/or           They recommended strengthening the language in regard to “treatment
funded by the Office of Alcoholism and Substance Abuse Services (“the             modalities”. OASAS believes the current language allows each treatment
Office”) as a provider of prevention, treatment or recovery services for          program to create their own tobacco treatment modality that will fit into
chemical dependence and/or gambling.                                              their program.
    Section 856.4 Definitions                                                         A provider in Madison County also congratulated OASAS for its
    (a) Tobacco-free means prohibiting the use of all tobacco products in         tobacco policy, and stated that in their program “supporting tobacco use in
facilities, on grounds and in vehicles owned or operated by the service           an inpatient setting consumed more than 30% of staff time”, and severely
subject to this Part.                                                             interfered with attendance and attentiveness. Therefore, they believe that
    (b) Facility means any part of the service that is utilized by patients,      the policy will decrease illness, disability and death, and it will strengthen
staff, volunteers or visitors. This shall include the service buildings and       the chance of success for their clients.
grounds which are under the direct control of the facility and vehicles that          Retention issues: Providers are afraid that the tobacco policy will keep
are owned and operated by the facility.                                           people from seeking treatment, cause people to sign themselves out of
    (c) Tobacco products include but are not limited to cigarettes, cigars,       treatment, and that people will seek admission at an inappropriate level of
pipe tobacco, chewing or dipping tobacco.                                         care, or out of state. As a result of these retention issues, providers point
    (d) Patient means any recipient of services in a facility certified or        out that should these patients continue to use drugs; their health concerns
funded by the Office.                                                             will not be prevented or addressed.
    Section 856.5 Policies and procedures                                             OASAS response: OASAS did not see a severe retention problem when
    (a) The governing authority of the service shall determine and establish      the agency run Addiction Treatment Centers became tobacco free. Since
written policies, procedures and methods governing the provision of a             this regulation will be instituted statewide there is less chance that reten-
tobacco-free environment. These policies, procedures and methods should           tion issues will occur or persist. The cost of health care and the health
at a minimum include the following:                                               related issues that accompany continued use of tobacco outweigh the
       (1) Defines the facility, vehicles and grounds which are tobacco-          amount and extent of health care issues stemming from the continued use
free;                                                                             of drugs by the small portion of persons who may not remain in treatment.
       (2) Prohibits patients, family members, and other visitors from                Discharge issues: Providers fear that a zero tolerance policy will force
bringing tobacco products and paraphernalia to the service;                       programs to discharge clients for any evidence of smoking which will
       (3) Requires all patients, staff, volunteers and visitors be informed of   negatively impact clients housing, public assistance, drug court status,
the tobacco-free policy including posted notices and the provision of             probation or parole.
copies of the policy;                                                                 OASAS Response: The regulation does not mandate that you should
       (4) Prohibits staff from using tobacco products while at work, during      adopt a zero tolerance policy. The policy regarding discharge is solely
work hours;                                                                       within the discretion of the individual program.
       (5) Establishes a tobacco-free policy for staff while they are on the
site of the service;                                                                  Census issues: Providers fear that their census will diminish, and per-
       (6) Establishes treatment modalities for patients who use tobacco;         sons will seek treatment outside of New York State.
       (7) Describes training on tobacco use and nicotine dependence                  OASAS response: OASAS runs several Addiction Treatment Centers
available to staff including clinical, non-clinical, administrative and vol-      throughout the state, all of whom went tobacco free a few years ago. The
unteers;                                                                          drop in census corrected itself within a short time. There were no long term
       (8) Describes tobacco and nicotine prevention and education pro-           fiscal problems as a result. This was achieved at a time when persons could
grams made available by the service to patients, staff, volunteers and            choose to go to a facility that did allow smoking. Therefore service provid-
others;                                                                           ers are in a much better position now that all facilities must be tobacco free
       (9) Establishes procedures, including a policy to address patients         because patients do not have a smoking alternative within the State.
who relapse on tobacco products. This policy shall incorporate the policy             Fiscal impact issues: Providers believe that the regulatory mandate will
and procedures contained in 816.5(g), 817.4(o), 818.4(o), 819.4(o),               be a financial burden on the service, both, in terms of cost for compliance,
820.7(a), 821.4(v), 822.4(u), 823.12(b), 828.14(b), (c) and (d), and every        and a reduced census. Providers have stated that “. . .Implementation of the
effort shall be made to provide appropriate treatment services to all             regulations will come with an economic impact because of staff related
persons in need of alcohol and drug addiction services. Additionally, each        expenses (the cost of staff time to develop the new policy, receive neces-
facility shall address staff relapse consistent with the employment proce-        sary training, and make necessary program modifications).” (Taken from a
dure of that facility.                                                            letter received from the New York Association of Alcoholism and Sub-
    Section 856.6 Severability                                                    stance Abuse Providers, Inc. (ASAP), commenting on the regulation).
    If any provision of this Part or the application thereof to any person or     Additional comments by ASAP concern compliance and implementation
circumstance is held invalid, such invalidity shall not affect other provi-       issues rather than proposed changes to the regulation.
sion or applications of this Part which can be given effect without the               Funding. Providers are afraid that the cost to them will result in an
invalid provision or applications, and to this end the provisions of this Part    unfunded mandate.
are declared to be severable.                                                         OASAS response is that no additional staff is needed to implement this
    Section 856.7 Effective Date                                                  regulation because the objective of nicotine recovery will necessarily be
    This regulation will be effective July 24, 2008.                              incorporated into a patient’s treatment plan as another drug for which they
Final rule as compared with last published rule: Nonsubstantive                   are treating as a symptom of the larger disease of addiction. NYS DOH
changes were made in section 856.5(a)(9).                                         Bureau of Tobacco Prevention and Control allotted 8 million dollars of
Text of rule and any required statements and analyses may be                      their budget to pay for training of all OASAS certified provider staff and
obtained from: Patricia Flaherty, Office of Alcoholism and Substance              free NRT to both patients and staff that do no have a prescription plan to
Abuse Services, 1450 Western Ave., Albany, NY 12203, (518) 485-2317,              pay for it. The program can be accessed on our website and programs can
e-mail: patriciaflaherty@oasas.state.ny.us                                        sign up for delivery of the NRT. There is also a training calendar on our
Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural               website.
Area Flexibility Analysis, and Job Impact Statement                                   Religious use of Tobacco: A provider who operates on an Indian
    A revised Regulatory Impact Statement, Job Impact Statement, Rural            Reservation where the patients are Native American and use pure tobacco
Area Flexibility Analysis, and Regulatory Flexibility Analysis are not            in religious observation is concerned about strict adherence to the regula-
attached because the change made to the regulation is non-substantive.            tion.

2
NYS Register/May 28, 2008                                                                                                 Rule Making Activities

    OASAS response: OASAS will help this program ensure that the spirit         Text of proposed rule: Repeal and reserve section 270.2(B)(6)(iii) of
of the regulation is adhered to while preserving and respecting the religious   Title 7 NYCRR (Rule 105.12).
use of tobacco during ceremony.                                                     Addition of two new sections 270.2(B)(6)(iv) and 270.2(B)(6)(v) to
    Location issues: Community residences will be negatively affected           read as follows:
because persons may go out into the community to smoke in less than                 270.2(B)(6)(iv)
desirable locations that may trigger their other addictions.                        105.13 An inmate shall not engage in or encourage others to engage in
    OASAS Response: Community residences will be required to have a             gang activities or meetings, or display, wear, possess, distribute or use
policy regarding tobacco dependency, provide support, treatment, and            gang insignia or materials including, but not limited to, printed or hand-
education regarding nicotine dependency and maintain a smoke free envi-         written gang or gang related material.                                I, II, III
ronment. How this is achieved will be dependent on how the program                  Note: For purposes of this rule, a gang is a group of individuals,
designs their policy.                                                           having a common identifying name, sign, symbol or colors, who have
    Co-located Facilities: Providers who are co-located with other pro-         individually or collectively engaged in a pattern of lawlessness (e.g.,
grams not licensed by OASAS are concerned with compliance issues.               violence, property destruction, threats of harm, intimidation, extortion, or
    OASAS response: OASAS is cognizant of the special circumstances of          drug smuggling) in one or more correctional facilities or that are gener-
co-located programs and will not require that OASAS licensed programs           ally recognized as having engaged in a pattern of lawlessness in the
control what happens on the grounds or space not controlled by the              community as a whole. For purposes of this rule, printed or handwritten
OASAS program.                                                                  gang or gang related material is written material that, if observed in the
    Staff smoking: Many providers want guidance on how to deal with             inmate’s possession, could result in an inference being drawn about the
staff smoking issues, and OASAS has been providing that guidance and            inmate’s gang affiliation, but excludes published material that that the
support. One comment stated that there was an inconsistency in the regula-      inmate has obtained through the facility library or that has been approved
tion in that the regulation requires a policy on staff relapse, but does not    for the inmate to possess through the media review process.
require that staff quit smoking. Another comment opposed excluding staff            270.2(B)(6)(v)
from the section that prohibits carrying tobacco products on the service.           105.14 An inmate shall not engage in or encourage others to engage in
    OASAS Response: The issues around staff smoking are only in regard          unauthorized organizational activities or meetings, or possess printed or
to on site smoking because the policy requires smoke free grounds. Ad-          handwritten material relating to an unauthorized organization where such
dressing staff relapse only refers to those staff that choose to use the        material advocates either expressly or by clear implication, violence based
services made available to all members of the service who want or need          upon race, religion, sex, sexual orientation, creed, law enforcement status
them. The regulation does not require that staff quit smoking. The regula-      or violence or acts of disobedience against department employees or that
tion only requires that staff refrain from smoking on the grounds of the        could facilitate organizational activity within the institution by an unau-
service.                                                                        thorized organization.                                                I, II, III
    Training Issues: Providers complain that the DOH training contract              Note: For purposes of this rule an unauthorized organization is any
awarded to the University at Albany is behind schedule and therefore            organization which has not been approved by the deputy commissioner for
training has not been provided to all persons affected by the regulation.       program services. Printed or handwritten material that could facilitate
    OASAS response: The agency will consider this factor and work with          organizational activity includes, but is not limited to, a membership roster,
individual service providers to get them the training they need, and to         organizational chart, constitution or by-laws. This rule excludes posses-
avoid penalizing a service provider for not being in full compliance should     sion of published material that the inmate has obtained through the facility
that failure be directly related to not receiving the training on time. Addi-   library or that has been approved for the inmate to possess through the
tionally OASAS has provided training through workshops, conference              media review process. During the pendency of an application to obtain
calls, webinars, and workbooks.                                                 authorization for a proposed inmate organization, the rule also excludes
    Nicotine Dependency alone: Utilization review may not take into ac-         specific printed or handwritten material that the Deputy Superintendent
count the need for treatment to continue solely for nicotine dependence.        for Programs or higher ranking employee has requested in writing that the
    OASAS response: In fact our certified programs cannot treat for nico-       inmate submit as part of the application process.
tine dependency alone, there must be a primary diagnosis of chemical                Amend Section 712.2(i) of Title 7 NYCRR by adding a note to read as
dependency. Therefore if the sole reason for continued treatment is nico-       follows:
tine dependency this will not justify a continuation of treatment.                  (i) The department reserves the right to deny the inmate publications
                                                                                which may be held noninciteful or nonadvocative, as the case may be,
                                                                                during the media review process, but which actually result in violence or
                                                                                disobedience after entrance into a facility, as is clearly set forth in
                                                                                paragraphs (h)(3) and (6) of this section. Such items shall be referred to the
                                                                                Facility Media Review Committee, and if appealed, referred to the Central
         Department of Correctional                                             Office Media Review Committee, for decision.
                                                                                    Note: There also may exist certain written material that, if observed by
                 Services                                                       a fellow inmate in the inmate’s possession, could result in an inference
                                                                                being drawn about the inmate’s gang affiliation and thereby target him or
                                                                                her for assault or result in other disruptive conduct. There likewise may
                                                                                exist certain written material that could facilitate organizational activity
                     NOTICE OF ADOPTION                                         within an institution by an organization that has not been approved by the
                                                                                deputy commissioner for program services to operate within that institu-
Standards of Inmate Behavior — Behavior, Classification of Each                 tion. Material that could facilitate organizational activity includes, but is
Infraction, Institutional Rules of Conduct and Media Review                     not limited to, a membership roster, organizational chart, constitution or
I.D. No. COR-10-08-00001-A                                                      by-laws. All such material described in this note can be disallowed al-
Filing No. 405                                                                  though otherwise determined not to incite or advocate for violence or
Filing date: May 8, 2008                                                        disobedience.
Effective date: May 28, 2008                                                    Final rule as compared with last published rule: Nonsubstantive
                                                                                changes were made in section 270.2(B)(6)(v).
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                     Text of rule and any required statements and analyses may be
cedure Act, NOTICE is hereby given of the following action:                     obtained from: Anthony J. Annucci, Deputy Commissioner and Counsel,
Action taken: Repeal of section 270.2(B)(6)(iii), addition of section           Department of Correctional Services, Bldg. 2, State Campus, Albany, NY
270.2(B)(6)(iv) and (v), and amendment of section 712.2(i) of Title 7           12226-2050, (518) 457-4951, e-mail: AJAnnucci@docs.state.ny.us
NYCRR.                                                                          Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural
Statutory authority: Correction Law, sections 112 and 138                       Area Flexibility Analysis and Job Impact Statement
Subject: Standards of inmate behavior — behavior prohibited in all facili-      Revisions to the Regulatory Impact Statement, Regulatory Flexibility
ties and the classification of each infraction and media review.                Analysis, Rural Area Flexibility Analysis and Job Impact Statement are
Purpose: To clarify and expand the types of unauthorized materials that         not required. The technical changes made to the previously published
can result in disciplinary action if possessed by inmates.                      proposed rule are non-substantive in nature. The structure of one sentence

                                                                                                                                                              3
Rule Making Activities                                                                                             NYS Register/May 28, 2008

was changed for grammatical reasons and the employee title “Deputy                accordance with 7 NYCRR § 712.3(b)(2), prior to the possible imposition
Superintendent of Program Services” was changed to the correct title of           of inmate discipline.”
“Deputy Superintendent for Program Services”.                                         In addition, in light of the frequency of inmate transfers, Title 7
Assessment of Public Comment                                                      NYCRR Part 712 and DOCS Directive #4572, “Media Review,” should be
     Since publication of the Notice of Proposed Rule Making, (COR-10-            revised to create consistency in decision making. A stamp or other notice
08-00001-P) in the State Register on March 5, 2008, the Department of             should be used to establish that Facility Media Review Committee ap-
Correctional Services (DOCS) received the following comments.                     proved a specific publication. Similarly, if the Central Office Media Re-
                                                                                  view Committee reverses the denial of a publication, a system should be
    Comment: Current Rule 105.12 was appropriately proposed for repeal.
                                                                                  created that notifies every other facility. Once the publication is approved
    Response: Without admitting any infirmity with the current rule, the          at one facility it should be considered approved statewide.
Department is in agreement.                                                           Response: A large amount, if not most, of the material subject to Rule
    Comment: The respective notes following the text of Rule 105.13 and           105.14 is expected to be handwritten or typed and therefore generally not a
105.14 should each include a provision that possession of published mater-        “publication” subject to Media Review under 7 NYCRR § 712.3(b)(2). For
ials an inmate has obtained through approved courses be excluded from the         publications regarding an unauthorized organization, other than a gang,
scope of the rules as there are instances in which educational programs           instruction issued by the Department should be sufficient to ensure that the
sanctioned by correctional facilities will distribute documents for learning      publications are forwarded to media review in accordance with 7 NYCRR
purposes.                                                                         § 712.3(b)(2), prior to the possible imposition of inmate discipline. As was
    Response: Not every circumstance that may militate against the appli-         noted in the Regulatory Impact Statement, the prohibited material in pro-
cation of an Inmate Rule of Conduct can or should be captured in a note.          posed Rule 105.14 is narrowly circumscribed and in the accompanying
Notwithstanding the foregoing, written instructions will accompany the            note to Rule 105.13, the term gang is well-defined. Consequently, with or
initial distribution of the rules to inform staff that if an inmate can show he   without Media Review Committee involvement, possession of only lim-
or she received published material from a teaching professional employed          ited and identified printed or handwritten material may subject an inmate
by the Department or employed by an educational entity under contract             to possible disciplinary action.
with the Department, possession of such material shall not subject the                The note section following the text of Rule 105.13 and 105.14 both
inmate to discipline under Rule 105.13 or Rule 105.14. The material may,          exclude from discipline published material that the inmate obtained
however, be subject to the Media Review process.                                  through the facility library or that has been approved for the inmate to
    Comment: The definition of an “unauthorized organization” as it ap-           possess through the media review process. Inmates are not permitted to
pears in the note following the text of Rule 105.14 is too broad. For             exchange property, including written material, without prior authorization.
example, nonprofit organizations, including publicly funded legal service         Consequently, an inmate is likely to know what published material in his or
agencies, may on occasion distribute by-laws, or other materials listed in        her possession was obtained through the mail or package room. Once the
the note as “prohibited.” Because these organizations are not organizations       inmate raises the issue that the published material was approved for the
approved by the Deputy Commissioner for Program Services, these mater-            inmate to possess, the Media Review Committee alleged by the inmate to
ials could be deemed to facilitate organizational activity and could result in    having given such approval can be contacted to verify the same. Any
an inmate being charged with a violation of Rule 105.14.                          attempt to coordinate the publication approvals statewide and to stamp
    To address this concern it is suggested that the scope of the proposed        every item approved through the Media Review process, as sought by the
rule as well as the proposed note to the regulations governing Media              commenters, would be extremely difficult and costly to effectuate and
Review be amended to only cover material that could facilitate organiza-          labor intensive. In addition, it is not required for the enforcement of the
tion activity within the institution by an unauthorized organization, if that     rules at issue in this proposal.
organization promotes, expressly or by clear implication, violence or diso-
bedience.                                                                                              NOTICE OF ADOPTION
    Response: Perhaps the most obvious rights that are necessarily cur-
tailed by the operational realities of a correctional facility are association    Adirondack Correctional Facility
rights among inmates. The Department can lawfully prohibit an inmate              I.D. No. COR-11-08-00001-A
from organizing or operating an inmate organization, irrespective of the          Filing No. 425
stated purpose of said organization, in the absence of prior authorization.       Filing date: May 12, 2008
Where a hearing officer believes that an inmate’s possession of a member-         Effective date: May 28, 2008
ship roster, organizational chart, constitution or by-laws is indicative of an
effort to circumvent said prohibition, the inmate may be subject to disci-        PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
pline under Rule 105.14. The Department doubts that nonprofit organiza-           cedure Act, NOTICE is hereby given of the following action:
tions, including publicly funded legal services agencies, such as your own,       Action taken: Amendment of section 100.6 of Title 7 NYCRR.
will, in the normal course, be providing inmates with a membership roster,        Statutory authority: Correction Law, section 70
organizational chart, constitution or by-laws. Moreover, unless the hearing       Subject: Adirondack Correctional Facility.
officer believes that said material could be used by the inmate to facilitate     Purpose: To expand the age range of inmates that can be assigned to the
organizational activity within the institution, the inmate will not be found      facility.
guilty of violating Rule 105.14. The Department believes that with training
and direction inappropriate application of the rule can be avoided.               Text or summary was published in the notice of proposed rule making,
                                                                                  I.D. No. COR-11-08-00001-P, Issue of March 12, 2008.
    Comment: Inmates that obtain or prepare materials for the purpose of
seeking approval of organizations pursuant to Department Directive                Final rule as compared with last published rule: No changes.
#4760, “Inmate Organizations,” could be wrongfully disciplined for a              Text of rule and any required statements and analyses may be
violation of Rule 105.14.                                                         obtained from: Anthony J. Annucci, Deputy Commissioner and Counsel,
    Response: On March 25, 2008, the inmate “Request for Approval to              Department of Correctional Services, Bldg. 2, State Campus, Albany, NY
Form an Inmate Organization,” included as “Attachment A” to the Direc-            12226-2050, (518) 457-4951, e-mail: AJAnnucci@docs.state.ny.us
tive referenced in the above comment, was amended to specifically instruct        Assessment of Public Comment
inmates not to create or possess, in connection with the application process      The agency received no public comment.
or for any other purpose, a membership roster, organizational chart, consti-
tution, by-laws or any other material that could facilitate organizational                         PROPOSED RULE MAKING
activity within the institution unless and until the organization has been                        NO HEARING(S) SCHEDULED
approved by the Deputy Commissioner for Program Services.
    The only exception is if the Deputy Superintendent for Program Ser-           Family Reunion Program
vices, First Deputy Superintendent or Superintendent requests that the            I.D. No. COR-22-08-00001-P
specific material is submitted as part of the application.
    Comment: The note section following the text of Rule 105.14 should            PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
include language similar to what appears in the Regulatory Impact State-          cedure Act, NOTICE is hereby given of the following proposed rule:
ment which states, in pertinent part, “any publication relating to an unau-       Proposed action: Amendment of Part 220 of Title 7 NYCRR.
thorized organization, other than a gang, be forwarded to media review in         Statutory authority: Correction Law, sections 112 and 146

4
NYS Register/May 28, 2008                                                                                                Rule Making Activities

Subject: Family Reunion Program.                                                 entire case record. A special review to determine eligibility will be con-
Purpose: To improve the review process for inmates applying for the              ducted if an inmate:
FRP, better identify programming requirements and define eligibility.                        (ii) has any outstanding warrants, show cause order (e.g., [U.S.]
Text of proposed rule: Section 220.2(a)(1), (2), (i)-(ii) are amended and        Bureau of Immigration [Services] & Customs Enforcement );
new subparagraphs (iii) and (iv) are added as follows:                                       (v) is in protective custody[, or administrative segregation];
       (1) Time. The inmate has been in the department’s custody, in other                   (vi) is in a special program such as Merle Cooper, APPU, or ICP,
than initial reception [or initial hub assessment status], for at least [90      or assigned to a [closed] mental [hygiene] health unit;
days] 6 months, and has been at the time of application a resident of a                         (a) review must include consideration of evaluation by psychi-
facility that offers the FRP for at least 30 days.                               atric staff [as well as review by the assistant commissioner for mental
       (2) Adjustment. The inmate has exhibited a pattern of good institu-       health and psychological services]; [or]
tional adjustment, and has not had any recent major disciplinary problems,                   (vii) is diagnosed as having a communicable disease[.];
[nor] any chronic disciplinary problems or severe disciplinary problems.                     (viii) has been convicted of a violent crime against an elderly
Satisfactory behavior must be maintained throughout the duration of the          person or a child;
application processing and the visit.                                                        (ix) has been convicted of escape or attempted escape; or
          (i) [Recent m] Major disciplinary problem. Any Tier II or III                      (x) has a history of domestic violence.
disciplinary proceedings in the eight weeks prior to the application result-         Section 220.3(a)(1), (2) and (3) are amended as follows:
ing in confinement to cell, room or dorm continuously on certain days or             (a) Eligible relations. Applications for participation in the FRP may be
during certain hours, for longer than 14 days, or, any loss of good time.        made for the following family members, all of whom must have estab-
Satisfactory behavior must be maintained throughout the duration of ap-          lished a recent visiting pattern[:]. A recent visiting pattern is defined as
plication processing and the visit. Reapplication can be made eight weeks        three visits of any kind within the past year. Discretion can be used in
from the confinement release date, or date of misbehavior report if loss of      situations where family members are elderly, infirmed or out of state.
good time is the only sanction imposed.                                                 (1) Legal spouses - a husband/wife of the inmate to whom (s)he has
          (ii) Chronic disciplinary problem. Three or more Tier II or III        been married for at least [90 days] 6 months, and who is not him/herself an
disciplinary proceedings in the last four months resulting in the imposition     inmate of a state correctional facility. Spouses must possess documenta-
of any keeplock time, any loss of privileges, or any loss of good time. [The     tion of a valid marriage license or a declaratory judgment stating the
term, however, is evaluative. Facility family service coordinators, superin-     validity of an out-of-state common-law marriage.
tendents, and the division of ministerial and family services will exercise             (2) Children of the inmate, 18 years of age or older.
discretion in determining whether or not an inmate with chronic discipli-               (3) Minor children of the inmate (under 18 years of age) may partici-
nary problems may participate in FRP.]                                           pate when accompanied by the inmate’s spouse, parents or grandparents,
          (iii) Severe disciplinary problem. A conviction or disciplinary        provided:
finding for any of the following will result in a one year ban from the FRP          New paragraphs (4) and (5) are added to section 220.3(b) as follows:
beginning after any disciplinary confinement is over. Substance abuse                   (4) Step children of the inmate with permission from both biological
disciplinary situations will require the completion of the ASAT program or       parents if they are alive.
equivalent before reapplication. A Tier II or III disciplinary report which             (5) Grandchildren and step grandchildren of the inmate with per-
includes:                                                                        mission of their parents.
             (a) A conviction for a federal or state crime while incarcerated;       Section 220.4(c)(1), (f), (g) and (j)(2)(ii) are amended as follows:
             (b) a penal law offence;                                                   (1) Checks inmate’s security file for major, [or] chronic, or severe
             (c) rioting;                                                        disciplinary problems.
             (d) escape or;                                                          (f) [Assistant] Deputy commissioner for program services (or desig-
             (e) use or possession of drugs or alcohol during the FRP.           nee).
          (iv) Facility family service coordinators, superintendents, and the        (g) Family service coordinator. Upon approval of the [assistant] deputy
division of ministerial, family and volunteer services will exercise discre-     commissioner for program services (or designee) or the superintendent,
tion in determining whether or not an inmate with disciplinary problems          transmits the names of approved applicants to the facility health service
may participate in FRP.                                                          unit. . . .
    Section 220.2(a)(3) (i)-(iii) is repealed and a new section 220.2(a)(3) is               (ii) Arranges to interview family members prior to visit. Places
proposed to read as follows:                                                     AIDS educational material in unaddressed envelope and gives it to an
       (3) Program participation. The inmate applicant must have partici-        adult, non-spouse visitor. Gives each visiting spouse the unaddressed
pated in or pursued required programs as identified on his or her pro-           envelope prepared by facility health services containing AIDS educational
gram/earned eligibility plan. Program/earned eligibility plan refusals,          material. Provides support and referral to family members who request
negative removals or regressions make an applicant ineligible until that         assistance.
need is addressed. Formal therapeutic programs sanctioned by the depart-             Section 220.5(b) and (c) are amended as follows:
ment, such as the Alcohol and Substance Abuse Treatment Program                      (b) Advises the inmate that (s)he may appeal the disapproval by letter
(ASAT) or other approved department treatment program (including                 to the [assistant] deputy commissioner for program services, with a copy to
CASAT, DWI, the Stay n’ Out Program at Arthurkill and Bayview and                the facility family services coordinator, to be mailed within 10 days of
other specialized substance abuse programs approved by the department)           notification of disapproval. The inmate’s letter must state the reason(s) for
for substance abuse and the Aggression Replacement Training Program              challenging the disapproval.
(ART) for aggression/violence, are the standards that must be met. Inmates           (c) The [assistant] deputy commissioner for program services will
who have actively pursued their plan yet who have not completed pro-             respond within [two] four weeks of receipt of the letter of appeal stating
grams and satisfied their needs will be evaluated according to their entire      the reason(s) for sustaining or reversing the approval. The [assistant]
record. Active participation or actual completion, however, may be re-           deputy commissioner’s decision shall be final.
quired to satisfy this precondition.                                                 Section 220.6(a)-(c) are amended as follows:
    Section 220.2(b)(3) and (4) are amended as follows:                              (a) the inmate has been transferred from one FRP facility to another
       (3) the inmate is assigned to a special housing unit for disciplinary     (inmate’s application must be reviewed by [assistant] deputy commis-
reasons or is in administrative segregation or in a mental health unit with      sioner for program services or designee);
concurrent SHU time (BHU, RMHU or IICP).                                             (b) the facility family services coordinator or superintendent recom-
       (4) an inmate participant found in violation of FRP regulations/          mends disapproval (inmate’s application must be reviewed by [assistant]
standards is ineligible to participate for [90 days] 6 months from the date of   deputy commissioner for program services or designee);
the disciplinary hearing finding. A new application[, filed more than 90             (c) new family participants over the age of 12 are added.
days after the violation,] must be reviewed and approved by central office           Note: In the event of either subdivision (a) or (b) of this section, the
prior to the inmate’s future program participation.                              inmate’s application must be reviewed by the [assistant] deputy commis-
    Section 220.2(c)(1)(ii), (v), (vi)(a), (vii) are amended and new subpara-    sioner for program services or his/her designee. . . .
graphs (viii)-(x) are added as follows:                                              Section 220.7(c), (d) and (f) are amended as follows:
       (1) A special review will be conducted which will include considera-          (c) Unusual termination. A visit may be terminated before the desig-
tion of the specifics of the crime, the age of the inmate at the time of the     nated time upon the request of the participants. It may also be terminated
offense, progress in programs, custodial adjustment, victim impact and the       by the judgment of the family reunion coordinator with the officer of the

                                                                                                                                                            5
Rule Making Activities                                                                                               NYS Register/May 28, 2008

day (for example, if there is a family disturbance or a weather emergency).        not authorized by law may enter a correctional facility except as authorized
The visit will be terminated immediately if any participants are found to be       by the commissioner.
under the influence of alcohol or drugs.                                               Legislative Objective:
    (d) Emergency termination. Illness, deaths, immediate family problems              By vesting the commissioner with this rulemaking authority, the legis-
or a facility emergency.                                                           lature intended the commissioner prescribe regulations governing visita-
    (f) In all cases of terminations pursuant to subdivisions (c)-(e) of this      tion to correctional facilities by persons not otherwise authorized to do so
section, thorough documentation is required with an unusual incident               by law.
report filed with local institution, family reunion office, and [assistant]            Needs and Benefits:
deputy commissioner for [ministerial and family] program services.                     The Family Reunion Program (FRP) is designed to provide selected
    Section 220.8 is repealed and a new section 220.8 is proposed as               inmates and their families the opportunity to meet for an extended period
follows:                                                                           of time in privacy with minimum staff supervision. For an inmate to be
    (a) A urine sample will be obtained from a participating inmate at the         allowed to be allowed to participate in the FRP, the inmate must have been
following times:                                                                   under DOCS supervision for a sufficient amount of time and demonstrated
       (1) between two to ten days prior to a FRP visit;                           appropriate behavior, custodial adjustment and program participation. De-
       (2) immediately prior to a FRP visit; and                                   partmental directive #4500, “Family Reunion Program” was last revised in
       (3) immediately after a FRP visit.                                          1991. These proposed rules improve the application and review process for
          (i) A urinalysis will be required at points (1) and (3); the sample      inmates applying for the FRP, better identify programming requirements
drawn at (2) may be analyzed immediately or if the inmate tests positive at        for applicants, better define visitors eligible to participate in the FRP and
point (3).                                                                         what they can bring in, and incorporate various technical corrections such
    (b) If the inmate tests positive for drugs at point (1), the FRP visit will    as title and agency name changes. Additional information about the FRP
be cancelled. Security will inform the Family Services Coordinator, who            may be obtained at the agency website www.docs.state.ny.us under the
will be responsible for advising the inmate’s family of the cancellation. If       “Directives” window.
the inmate is found guilty at the time of the disciplinary hearing, he/she, in         Section 220.2(a)(1) increases the time period from 90 days to 6 months
addition to being subject to penalties under the Standards of Inmate               before an inmate may apply for the Family Reunion Program (FRP). This
Behavior, 7 NYCRR Chapter V, will also be suspended from the Family                allows a more adequate time period for departmental staff to assess the
Reunion Program for one year. As a condition of reapplication, the inmate          custodial adjustment of the recently incarcerated inmate. Based upon
must have completed the ASAT program or equivalent in the interim, and             DOCS’ experience, it takes approximately 6 months after an inmate is
must present documentation of same at the time of reapplication. If the            received into DOCS custody to properly assess the inmate’s progress.
inmate is found not guilty, the FRP visit will be rescheduled for a date that      Departmental staff need to assess an individual inmate’s programming
is acceptable to both the family and the facility.                                 needs based upon their current crime of conviction, criminal history,
    (c) If the inmate tests negative at point (1) and positive at point (3), the   institutional and custodial adjustment, etc., which requires a sufficient
urine sample taken at point (2) will be tested to determine if the inmate          amount of time for the inmate to be in DOCS custody. Correction counsel-
ingested drugs between points (1) and (2). If the (2) sample is positive, the      ors meet with individual inmates every three months to review their pro-
family cannot be implicated. However, if the (2) sample is negative, it can        gress. A 6 month waiting period provides a better time frame for a correc-
be concluded that the drugs were ingested during the Family Reunion visit,         tion counselor to assess an inmate’s adjustment after being transferred to a
with the family, therefore, being involved at some level. In this situation,       permanent facility after the inmate has been processed through a reception
the inmate will be subject to the sanctions outlined in B (above); addition-       and classification facility.
ally, the family will be required to participate in a drug education program           Section 220.2(a)(2), (i)-(iii) creates a new level of disciplinary behavior
at some point during the one-year suspension, and present documentation            when assessing an inmate applicant. “Severe disciplinary problem” is
of same at the time of reapplication.                                              identified and an inmate who meets this status is ban from the FRP for one
    (d) The sanctions outlined in B and C above will be discussed in the           year after disciplinary confinement. “Major disciplinary problem” is a
context of a counseling session conducted by the Family Services Coordi-           disciplinary status which now prohibits an inmate from reapplication to the
nator subsequent to the inmate’s disciplinary proceeding. At that time,            FRP for eight weeks. These amendments make it easier for staff to assess
drug education alternatives will be presented, e.g. ASAT and Narcotics             the eligibility for inmates to participate in the FRP.
Anonymous (for inmates) and community-based programs (for inmates’                     Section 220.2(a)(2)(iv) was added as a new subparagraph which pro-
families), with referrals being made to appropriate personnel and organi-          vides departmental staff the final discretion in determining whether or not
zations as needed.                                                                 an inmate with disciplinary problems may participate in the FRP. This rule
    Section 220.9(c), (e)(1), and (g) are amended as follows:                      currently is in subparagraph (ii) along with other provisions. This new
    (c) Visitors are allowed to bring only a minimum amount of personal            subparagraph is more succinct and clear.
property, including items of personal hygiene. The facility shall provide:             Section 220.2(a)(3)(i)-(iii) is repealed and a new section 220.2(a)(3) is
pillows, blankets, bed linens, towels, soap and condoms[, sanitary pads            added which identifies specific, departmental sanctioned program which
and tampons (female facilities only)].                                             the individual inmate is required to satisfy based upon their assessed needs.
       (1) General. Glass containers are prohibited. Except for fresh fruits       Departmental staff identify specific programs each inmate is expected to
and vegetables, [meats and prepared foods,] food products must be com-             satisfy based upon their assessed needs. Inmates who refused to participate
mercially packaged in airtight hermetically sealed containers impervious           in their recommended programs would be ineligible to participate in the
to external influence. . . .                                                       FRP. The FRP existed before some of the departmental sanctioned pro-
    (g) Visitors may not bring in any alcohol, narcotics, dangerous drugs,         grams existed and various programs were offered through volunteer
[or] weapons cellular phones, wireless phones, pagers, laptop computers,           groups which made it difficult for staff to assess if inmates were receiving
personal digital assistants, any device with global positioning (G.P.S.)           appropriate programming. This proposed rule would make it easier for
capabilities, any device with audio recording capabilities, radios, cameras        staff and inmates to assess and understand program participation require-
or other similar electronic devices.                                               ments.
                                                                                       Section 220.2(b)(3) identifies inmates in administrative segregation or
Text of proposed rule and any required statements and analyses may
                                                                                   in a mental health unit with concurrent special housing unit (SHU) discipli-
be obtained from: Anthony J. Annucci, Deputy Commissioner and
                                                                                   nary confinement time from being ineligible to participate in the FRP. In
Counsel, Department of Correctional Services, Bldg. 2, State Campus,
                                                                                   practice, inmates in administrative segregation were not approved to par-
Albany, NY 12226-2050, (518) 457-4951, e-mail: AJAnnucci@docs.
                                                                                   ticipate in the FRP through the special review process as they were deemed
state.ny.us
                                                                                   a security risk for an unsupervised visit. This amendment better reflects the
Data, views or arguments may be submitted to: Same as above.                       department’s practice. Inmates in a mental health unit with concurrent
Public comment will be received until: 45 days after publication of this           SHU time would be considered a security risk for an unsupervised visit.
notice.                                                                                Section 220.2(b)(4) increases the time period from 90 days to 6 months
Regulatory Impact Statement                                                        that an inmate is ineligible to participate in the FRP if found in violation of
    Statutory Authority:                                                           the FRP regulations/standards. This proposed rule is intended to encourage
    Section 112 of the Correction Law assigns to the commissioner of               inmates participating in the FRP to comply with its rules.
correction the powers and duties of management and control of correc-                  Section 220.2(c)(1)(ii), (vi)(a), and (vii) are amended to better explain
tional facilities. Section 146 of the Correction Law specifies that no one         what a special review will consider when reviewing an inmate’s applica-

6
NYS Register/May 28, 2008                                                                                                     Rule Making Activities

tion who qualifies for this review. There are some technical amendments                Section 220.9(g) adds electronic devices such as cellular phones,
such as changing the U.S. Immigration Service to the Bureau of Immigra-            laptop computers, pagers, etc., which are already not allowed in facilities
tion & Customs Enforcement, removing administrative segregation in-                in accordance with departmental directives. This will help visitors avoid
mates from special review, and elimination of a review by the assistant            delays and being required to dispose of their unauthorized items when
commissioner for mental health and psychological services as that position         being processed for the FRP visit.
does not exist currently.                                                              Costs:
     Section 220.2(c)(1)(viii)-(x) are added so that inmates convicted of a            a. To regulated parties: None.
violent crime against an elderly person or a child, convicted of escape or
attempted escape, or a history of domestic violence are required to have a             b. To agency, the state and local governments: None.
special review by departmental staff. Inmates who commit such crimes                   c. Source of information: Director of Ministerial and Family Services.
must be assessed more closely for the protection of the visitor since the
FRP visit is unsupervised.                                                             Local Government Mandates:
                                                                                       There are no new mandates imposed upon local governments by these
     Section 220.3(a) better defines what constitutes a recent visiting pattern
                                                                                   proposals. The proposed amendments do not apply to local governments.
and also affords agency discretion for family members who do not meet
the minimum requirements if they are elderly, infirmed or out of state.                Paperwork:
     Section 220.3(a)(1) increases the amount of time the inmate and spouse            There are no new reports, forms or paperwork that would be required as
have been married from 90 days to 6 months before being considered a               a result of amending these rules.
legal spouse. This allows a better evaluation by departmental staff of the             Duplication:
inmate’s and family’s marital relationship for an unsupervised visit.
                                                                                       These proposed amendments do not duplicate any existing State or
     Section 220.3(2)-(4) clarifies that children and minor children of the        Federal requirement.
inmate are allowed to participate in the FRP under the proper conditions. It
also identifies and affords stepchildren, grandchildren and step grandchil-            Alternatives:
dren to participate in the FRP with the proper permissions.                            No alternatives are considered feasible in increasing the waiting period
     Section 220.4(f) and (g), section 220.5(b), section 220.6(a)-(c) and          an inmate may apply for the FRP from 90 days to 6 months. This allows a
section 220.7(f) are technical changes since the administration of the FRP         more adequate time period for departmental staff to assess the custodial
was switched from the assistant commissioner for ministerial and family            adjustment of the recently incarcerated inmate. Based upon DOCS’ experi-
services to the deputy commissioner for program services. The assistant            ence, it takes approximately 6 months after an inmate is received into
commissioner for ministerial and family services position no longer exists.        DOCS custody to properly assess the inmate’s progress. Departmental
                                                                                   staff need to assess an individual inmate’s programming needs based upon
     Section 220.4(c)(1) is a technical change to include the new discipli-        their current crime of conviction, criminal history, institutional and custo-
nary level as noted in section 220.2(a)(2)(iii) as part of the applicant’s         dial adjustment, etc., which requires a sufficient amount of time for the
review by security services.                                                       inmate to be in DOCS custody. Correction counselors meet with individual
     Section 220.4(j)(2)(ii) is a technical change in that the family service      inmates every three months to review their progress. A 6 month waiting
coordinator will provide appropriate visitors AIDS educational material            period provides a better time frame for a correction counselor to assess an
which is prepared by health services as described above in section                 inmate’s adjustment after being transferred to a permanent facility after the
220.4(h)(1)-(4).                                                                   inmate has been processed through a reception and classification facility.
                                                                                   These proposed rules improve the application and review process for
     Section 220.5(c) changes the administration of the FRP from the assis-        inmates applying for the FRP, better identify programming requirements
tant commissioner to the deputy commissioner for program services. It              for applicants, better define visitors eligible to participate in the FRP and
also expands the time frame from two to four weeks for the deputy                  what they can bring in, and incorporate various technical corrections such
commissioner for program services to respond to appeals concerning FRP             as title and agency name changes.
decisions. The increase of time to respond to appeals is more realistic and
allows for a more thorough review of appeal statements.                                Federal Standards:
     Section 220.7(c) and (d) include weather and facility emergencies as              There are no minimum standards of the Federal government for this or
possible reasons to end a FRP visit. Such situations have occurred occa-           similar subject area.
sionally in the past, and it is appropriate to include these possible situations       Compliance Schedule:
in the rules in order to better prepare all participants in the FRP.
                                                                                       The Department of Correctional Services will achieve compliance with
     Section 220.8 was repealed and a new section 220.8 proposed. The new          the proposed rules immediately.
proposal contained many of the same rules, however, it is more clearly
written and comprehensible. There is a change that allows the department           Regulatory Flexibility Analysis
to take the second urine sample and either analyze it immediately or after         A regulatory flexibility analysis is not required for this proposal since it
the visit if the inmate tests positive for drugs afterwards. This allows the       will not impose any adverse economic or reporting, recordkeeping or other
department discretion to test the second sample if they suspect the inmate         compliance requirements on small businesses or local governments. This
is under the influence of drugs and since the first sample may be obtained         proposal merely improves the application and review process for inmates
up to ten days prior to the FRP visit which provides the inmate an opportu-        applying for the family reunion program, better identify programming
nity to use illegal drugs before the visit. Another change requires inmates        requirements for applicants, better define visitors eligibility to participate
to complete the Alcohol and Substance Abuse Treatment Program (ASAT)               in the family reunion program and what they can bring in.
or equivalent as cited in section 220.2(a)(3) as a condition of reapplication
if they tested positive for drugs prior to their FRP visit.
                                                                                   Rural Area Flexibility Analysis
                                                                                   A rural area flexibility analysis is not required for this proposal since it will
     Section 220.9(c) is a technical correction in that visitors are allowed to
                                                                                   not impose any adverse economic impact or reporting, recordkeeping or
bring in a minimum amount of personal property and items of personal
                                                                                   other compliance requirements on rural areas. This proposal merely im-
hygiene. The list of items to be provided by the facility eliminates sanitary
                                                                                   proves the application and review process for inmates applying for the
pads and tampons as these are items which visitors may bring in for their
                                                                                   family reunion program, better identify programming requirements for
use. These items are provided to female inmates participating in the FRP
                                                                                   applicants, better define visitors eligibility to participate in the family
and do not belong on this list for visitors.
                                                                                   reunion program and what they can bring in.
     Section 220.9(e)(1) amends what food is allowed to be brought in by
the visitor so it is consistent with section 724.5 of 7 NYCRR and depart-          Job Impact Statement
mental directive #4911, “Packages & Articles Sent or Brought to Facili-            A job impact statement is not submitted because this proposed rule will
ties”. Fresh fruit and vegetables are allowed but not meats and prepared           have no adverse impact on jobs or employment opportunities. This propo-
foods unless they are commercially packaged in airtight hermetically               sal merely improves the application and review process for inmates apply-
sealed containers impervious to external influence. This reduces the possi-        ing for the family reunion program, better identify programming require-
bility of spoiled foods of being consumed during the visit or of introducing       ments for applicants, better define visitors eligibility to participate in the
contraband.                                                                        family reunion program and what they can bring in.

                                                                                                                                                                  7
Rule Making Activities                                                                                              NYS Register/May 28, 2008

                                                                                  ter and include the methods to be used to achieve proposed class sizes,
                                                                                  such as the creation or construction of more classrooms and school build-
              Education Department                                                ings, the placement of more than one teacher in a classroom or methods to
                                                                                  otherwise reduce the student to teacher ratio. Beginning in the 2008-2009
                                                                                  school year, such plan shall provide for reductions in class size that, by the
                                                                                  end of the 2011-2012 school year, will not exceed the prekindergarten
                  REVISED RULE MAKING                                             through grade 12 class size targets prescribed by the Commissioner after
                 NO HEARING(S) SCHEDULED                                          consideration of the recommendation of an expert panel appointed to
                                                                                  review class size research.
Contracts for Excellence                                                               Paragraph (3) of section 100.13(b) prescribes requirements for the use
I.D. No. EDU-20-07-00005-RP                                                       of contract for excellence funds.
                                                                                       The Commissioner shall approve each contract meeting the provisions
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                       of section 100.13 and certify, for each contract, that the expenditure of
cedure Act, NOTICE is hereby given of the following revised rule:                 additional aid or grant amounts is in accordance with Education Law
Revised action: Addition of section 100.13 and amendment of section               section 211-d(2). Approval shall be given to contracts demonstrating to the
170.12 of Title 8 NYCRR.                                                          Commissioner’s satisfaction that the allowable programs selected:
Statutory authority: Education Law, sections 101 (not subdivided), 207                      (i) predominately benefit students with the greatest educational
(not subdivided), 215 (not subdivided), 305(1) and (2), 211-d(1-9); and L.        needs;
2007, ch. 57, part A, section 12, and L. 2008, ch. 58, part A, section 2                    (ii) predominately benefit students in schools identified as requir-
Subject: Contracts for excellence.                                                ing academic progress, or in need of improvement, or in corrective action,
Purpose: To establish allowable programs and activities, criteria for pub-        or restructuring and address the most serious academic problems in those
lic reporting by school districts of their total foundation aid expenditures,     schools; and
and other requirements for purposes of preparation of contracts for excel-                  (iii) are based on practices supported by research or other compa-
lence by certain specified school districts.                                      rable evidence in order to facilitate student attainment of State learning
Substance of revised rule: The State Education Department proposes to             standards.
add a new section 100.13 and amend sections 170.12 of the Commis-                      Section 100.13(c) establishes the allowable programs and activities,
sioner’s Regulations, effective August 21, 2008. The rule is necessary to         including experimental programs. Section 100.13(c)(1) establishes general
implement Education Law section 211-d, regarding contracts for excel-             requirements, including that such programs and activities: (1) predomi-
lence.                                                                            nately benefit students with the greatest educational needs including, but
    The proposed amendment was adopted as an emergency measure at the             not limited to: LEP and ELL students, students in poverty, students with
April Regents 2007 meeting, revised and readopted as an emergency rule            disabilities, and students with low academic achievement; (2) predomi-
at the June and July Regents meetings, readopted as an emergency action at        nately benefit students in schools identified as requiring academic pro-
the September and October 2007 and January 2008 Regents meetings, and             gress, in need of improvement, in corrective action, or restructuring and
revised and readopted as an emergency action at the March 2008 Regents            address the most serious academic problems in those schools; (3) be
meeting.                                                                          consistent with federal and State statutes and regulations governing the
    Further revisions are proposed to the rule as set forth in the Revised        education of such students; (4) be developed in reference to practices
Regulatory Impact Statement submitted herewith. A summary of the re-              supported by research or other comparable evidence in order to facilitate
vised rule follows.                                                               student attainment of State learning standards; (5) where applicable, be
    Section 100.13(a) defines: (1) total foundation aid; (2) supplemental         accompanied by high quality, sustained professional development focused
educational improvement plan grant; (3) contract amount; (4) base year;           on content pedagogy, curriculum development, and/or instructional design
(5) experimental programs; (6) highly qualified teacher; (7) response to          in order to ensure successful implementation of each program and activity;
intervention program and (8) students with low academic achievement.              (6) ensure that expenditures of the contract amount shall be used to supple-
    Section 100.13(b) provides that each contract shall be prepared pursu-        ment and not supplant funds expended by the district in the base year for
ant to the requirements of subdivision (d), shall be in a format, and             such purposes; (7) ensure that all additional instruction is provided by
submitted pursuant to a timeline, prescribed by the Commissioner and              appropriately certified teachers or highly qualified teachers where required
shall:                                                                            by section 120.6 of this Title, emphasizing skills and knowledge needed to
       (1) describe how the contract amount shall be used to support new          facilitate student attainment of State learning standards; and (8) be coordi-
programs and new activities or expand use of programs and activities              nated with all other allowable programs and activities included in the
demonstrated to improve student achievement, from the allowable pro-              district’s contract as part of the district’s comprehensive educational plan.
grams and activities and/or authorized experimental programs pursuant to               Section 100.13(c)(2) establishes criteria for specific allowable pro-
section 100.13(c); and specify how the contract amount will be distributed        grams and activities, which shall include: (1) class size reduction for (a) the
in accordance with 100.13(b)(3);                                                  NYC school district and (b) all other school districts; (2) student time on
       (2) specify the new or expanded programs, from the allowable pro-          task; (3) teacher and principal quality initiatives; (4) middle school and
grams and activities and/or authorized experimental programs pursuant to          high school restructuring; and (5) full-day kindergarten or prekindergarten
section 100.13(c), for which each sub-allocation of the contract amount           programs.
shall be used and affirm that such programs shall predominately benefit                Section 100.13(c)(2)(i) establishes requirements for class size reduc-
students with the greatest educational needs including, but not limited to:       tion, including special provisions for NYC. NYC must allocate some of its
(a) limited English proficient (LEP) students and students who are English        total contract amount to class size reduction according to a plan, included
language learners (ELL), (b) students in poverty, (c) students with disabili-     in their contract and approved by the Commissioner pursuant to section
ties, and (d) students with low academic achievement;                             100.13(c), to reduce the average class size for the following grade ranges:
       (3) state, for all funding sources, whether federal, state or local, the   prekindergarten to grade three, grades four through eight, and grades nine
instructional expenditures per pupil, the special education expenditures per      through twelve, commencing in the 2007-2008 school year and ending in
pupil, and the total expenditures per pupil, projected for the current year       the 2011-2012 school year, to target levels recommended by the expert
and estimated for the base year; provided that no later than February 1 of        panel appointed by the Commissioner. Districts outside of NYC shall
the current school year, the district shall submit a revised contract stating     establish class size reduction goals in the 2007-2008 school year and
such expenditures actually incurred in the base year;                             demonstrate measurable progress towards meeting such goals; and begin-
       (4) include any programmatic data projected for the current year and       ning with the 2008-2009 school year, shall demonstrate measurable pro-
estimated for the base year, as the Commissioner may require; and                 gress towards meeting the target levels recommended by the expert panel.
       (5) in the NYC school district, include a plan that meets the require-     The rule also mandates NYC give priority to prekindergarten through
ments of section 100.13(d)(2)(i)(a), to reduce average class sizes within         grade 12 students in schools requiring academic progress, correction,
five years for the following grade ranges: (a) prekindergarten through            improvement or in restructuring and to overcrowded schools. Furthermore,
grade three; (b) grades four through eight; and (c) grades nine through           it requires that classrooms created shall provide adequate and appropriate
twelve. Such plan shall be aligned with the capital plan of the NYC school        physical space to students and staff, among others. Class size reduction
district and include continuous class size reduction for low performing and       may be accomplished through the creation of additional classrooms and
overcrowded schools beginning in the 2007-2008 school year and thereaf-           buildings, through assignment of more than one teacher to a classroom or,

8
NYS Register/May 28, 2008                                                                                                  Rule Making Activities

in NYC, by other methods to reduce the student to teacher ratio, as               have been used to supplement, and not supplant funds allocated by the
approved by the Commissioner.                                                     district in the base year for such purposes.
    Section 100.13(c)(2)(ii) provides that allowable programs and activi-         Revised rule compared with proposed rule: Substantial revisions were
ties related to student time on task may be accomplished by: (1) lengthened       made in section 100.13(b), (c), (d) and (e).
school days, (2) lengthened school years and (3) dedicated instructional          Revised rule making(s) were previously published in the State Register
time, including individual intervention, tutoring and student support ser-        on: August 8, 2007, August 15, 2007, March 5, 2008.
vices.                                                                            Text of revised proposed rule and any required statements and
    Section 100.13(c)(2)(iii) prescribes requirements for teacher and prin-       analyses may be obtained from: Anne Marie Koschnick, Legal Assis-
cipal quality initiatives, including: (1) recruitment and retention of teach-     tant, Office of Counsel, Education Department, State Education Bldg.,
ers, (2) mentoring for teachers and principals in their first or second year of   Rm. 148, Albany, NY 12234, (518) 473-8296, e-mail: legal@mail.
a new assignment, (3) incentive programs for teacher placement, (4) in-           nysed.gov
structional coaches, and (5) school leadership coaches. Districts shall           Data, views or arguments may be submitted to: Johanna Duncan-Poi-
ensure that an appropriately certified, or highly qualified teacher where         tier, Senior Deputy Commissioner of Education - P16, Education Depart-
required under section 120.6, is in every classroom and an appropriately          ment, 2M West Wing, Education Bldg., 89 Washington Ave., Albany, NY
certified principal is assigned to every school.                                  12234, (518) 474-3862, e-mail: p16education@mail.nysed.gov
    Section 100.13(c)(2)(iv) provides that allowable programs and activi-         Public comment will be received until: 30 days after publication of this
ties for middle and high school restructuring include: (1) instructional          notice.
program changes to improve student achievement and attainment of the              Revised Regulatory Impact Statement
State learning standards and (2) structural organization changes. The sec-             Since publication of a Notice of Revised Rule Making in the State
tion further requires that districts choosing to make organization changes        Register on March 5, 2008, the proposed rule was revised as follows:
must also make instructional program changes.                                         The term “contract amount” was replaced throughout the regulation
    Section 100.13(c)(2)(v) is added to provide that allowable programs           with “annual contract amount.”
and activities for model programs for student with limited English profi-             Subdivision (b), regarding applicability provisions, was deleted and the
ciency include: (1) programs serving limited English proficiency students         subsequent subdivisions relettered. In lieu of such provisions, a reference
to address their learning needs by providing education in their native            to Education Law section 211-d was added in relettered subdivision (b)
language, provide targeted programs to student who have resided in the            [formerly (c)].
United State for 7 years or longer and who are below grade level in                   100.13(b)(2) was revised to clarify that the commissioner shall approve
reading, writing and other targeted areas , and provide support services to       each contract meeting the provisions of section 100.13 rather than
students transitioning into mainstream educational settings; (2) native lan-      100.13(b).
guage support; (3) new immigrant programs; (4) recruitment and retention              100.13(b)(4) was revised to provide that each school district shall post
programs for bilingual teachers and personnel staff; and (5) parent involve-      a proposed amended contract on its website within 48 hours of submission
ment programs.                                                                    to the commissioner for approval.
    Section 100.13(c)(2)(vi) provides that allowable programs and activi-             100.13(c)(2)(i)(a)(1)(ii) was revised to clarify that New York City shall
ties for full-day kindergarten or prekindergarten programs include: (1) a         provide class size reduction baseline data for the respective immediately
minimum full school day program, (2) a minimum full school day program            preceding school years for the 2007-2008 school year and continuing for
with additional hours for children and families, (3) a minimum full school        each school year thereafter up to and including the 2011-2012 school year.
day program with additional hours in collaboration with community based               A new section 100.13(c)(v) was added, and existing subparagraph (v)
agencies (prekindergarten only), and (4) classroom integration programs           relettered to (v), to establish criteria for allowable programs and services
for students with disabilities (specifically for full-day prekindergarten).       for model programs for students with limited English proficiency, pursuant
    Section 100.13(c)(3) lists the following requirements for experimental        to Education Law section 211-d (3), as amended by Chapter 57 of the Laws
programs, not included in the allowable programs and activities described         of 2008.
above: (1) a maximum percentage of the contract amount that may be used               Section 100.13(d)(2)(ii)(b) was revised to require school districts to
for experimental programs, (2) a plan must be submitted to the Commis-            provide reasonable notice to the public of each public hearing held as part
sioner, (3) the program must be based on an established theoretical base          of the public process to develop contracts for excellence; to require school
supported by research or other comparable evidence, (4) the implementa-           districts provide public notice of the hearings to the news media and
tion plan for an experimental program must be accompanied by a program            conspicuously post public notice, consistent with the notice and time
evaluation plan based on empirical evidence to assess the impact on               provisions of the Open Meetings Law; and to provide for the participation
student achievement, and (5) the experimental program may be in partner-          in public hearings of any interested party.
ship with an institution of higher education or other organization with               100.13(d)(2)(iii)(b) was revised to require each school district to pre-
extensive research experience and capacity.                                       pare a public comment assessment not later than 12 days after expiration of
    Section 100.13(c)(3)(ii) states provides a maximum amount of up to            the public comment period or conclusion of public hearings, which occurs
$30 million dollars or twenty-five percent of the contract amount, which-         later.
ever is less, that districts may use in the 2007-2008 school year to maintain         100.13(d)(2)(iv) was added to provide that a school district shall not
existing programs and activities listed in Education Law section 211-             submit its contract to the commissioner for approval until after the 30-day
d(3)(a).                                                                          public comment period has ended, all public hearings have been con-
                                                                                  ducted, the public comment record has been prepared, and the public
    Section 100.13(d) establishes criteria for the development of the con-        comment assessment has been prepared and posted on a school district
tract for excellence pursuant to a public process, in consultation with           website. Each school district shall post a copy of its contract for excellence
parents or persons in parental relation, teachers, administrators, and any        on its website within 48 hours of submission of the contract to the Com-
distinguished educator appointed pursuant to Education Law section 211-           missioner for approval.
c, which shall include at least one public hearing. Special provisions for            100.13(e)(2)(ii)(c) was revised to require school districts to make cop-
NYC’s development of the contracts are included.                                  ies of the complaint notice and complaint form available in schools and
    Section 100.13(e) establishes requirements to assure procedures are in        school district offices.
place by which parents may bring complaints concerning implementation                 The above revisions require the following sections of the Regulatory
of a district’s contract for excellence, including special provisions for the     Impact Statement be revised as follows:
NYC.                                                                                  LOCAL GOVERNMENT MANDATES
    Section 100.13(f) establishes requirements for the public reporting by            Each district identified in the statute must prepare a contract for excel-
districts of their school-based expenditures of total foundation aid.             lence pursuant to the rule’s provisions. Depending on the allowable pro-
    Section 170.12(e)(1), relating to requirements of an annual audit of          grams and activities chosen, the rule mandates or requires certain actions.
school district records, is amended to provide that, for schools required to          Each school district shall post its contract for excellence, and any
prepare a contract for excellence pursuant to Education Law section 211-d,        amended contract, on its website within 48 hours of submission to the
the annual audit for the year such contract is in effect shall also include a     commissioner for approval.
certification by the accountant or, where applicable, the NYC comptroller,            School districts must establish a 30-day period for receipt of written
in a form prescribed by the Commissioner, that the increases in total             public comment, and procedures for the conduct of public hearings on their
foundation aid and supplemental educational improvement plan grants               proposed contracts, and provide reasonable notice to parents and persons

                                                                                                                                                              9
Rule Making Activities                                                                                              NYS Register/May 28, 2008

in parental relation, teachers, administrators, and any distinguished educa-      from the date of receipt of the complaint, and an explanation of appeal
tor appointed pursuant to Education Law section 211-c. The rule requires          procedures.
school districts to provide reasonable notice to the public of each public            Upon appeal, the superintendent or community superintendent, as ap-
hearing held as part of the public process to develop contracts for excel-        plicable, shall notify the complainant in writing of the appeal determina-
lence; to require school districts provide public notice of the hearings to the   tion, including the basis for such determination, and an explanation of the
news media and conspicuously post public notice, consistent with the              appeal procedures.
notice and time provisions of the Open Meetings Law; and to provide for               Upon appeal of the complaint determination, or an appeal determina-
the participation in public hearings of any interested party.                     tion of a superintendent or community superintendent, to the trustees/
    Districts shall provide translations of the notices into languages other      board of education or chancellor, written notice shall be provided the
than English most commonly spoken in the district.                                appeal determination, the basis for the determination, and a statement that
    Districts shall prepare, and make available upon request, a record of         the determination may be appealed to the Commissioner pursuant to Edu-
public comment received. Not later than 12 days after expiration of the           cation Law section 310.
public comment period or conclusion of public hearings, whichever occurs              In addition, the following paragraph is added to the Statutory Authority
later, each district shall prepare a public comment assessment. The public        section: Section 2 of Part A of Chapter 57 of the Laws of 2008 amended
comment assessment shall be posted on a district website and made availa-         Education Law section 211-d to revise the criteria for determining which
ble upon request.                                                                 school districts are required to prepare a contract for excellence, and to add
    Districts shall develop a complaint form and instructions for use.            model programs for students with limited English proficiency as a sixth
    Districts shall provide reasonable notice to parents of students or per-      category of allowable programs and services.
sons in parental relation to students of the procedures for bringing a            Revised Regulatory Flexibility Analysis
complaint concerning implementation of the contract for excellence, and               Since publication of a Notice of Revised Rule Making in the State
provide translations of the complaint form and procedures into the lan-           Register on March 5, 2008, the proposed rule has been substantially
guages other than English most commonly spoken in the district.                   revised as set forth in the Revised Regulatory Impact Statement submitted
    Each district shall post, and make available for downloading, its notice      herewith.
of complaint procedures and complaint form on a district website, and                 The above revisions to the proposed rule require that the following
make them available in schools and school district offices. Districts may         sections of the previously published Regulatory Flexibility Analysis be
use additional methods to provide notice, including providing copies in           revised as follows.
district mailings and distributions.                                                  COMPLIANCE REQUIREMENTS
    PAPERWORK                                                                         Each district identified in the statute must prepare a contract for excel-
    School districts will submit their contracts to the Commissioner for          lence pursuant to the rule’s provisions. Depending on the allowable pro-
approval, using an automated, web-based application.                              grams and activities chosen, the rule mandates or requires certain actions.
    Notice of the written public comment period and public hearing shall              School districts will submit their contracts to the Commissioner for
include:                                                                          approval, using an automated, web-based application.
    (1) a general description of the contract;                                        Each school district shall post its contract for excellence, and any
                                                                                  amended contract, on its website within 48 hours of submission to the
    (2) a detailed description of proposed allocations, on a school level, by     commissioner for approval.
program area, including details concerning proposed program additions
                                                                                      School districts must establish a 30-day period for receipt of written
and/or enhancements, by student achievement performance targets, and by
                                                                                  public comment, and procedures for the conduct of public hearings on their
affected student population groupings, including students with limited
                                                                                  proposed contracts, and provide reasonable notice to parents and persons
English proficiency and students who are English language learners, stu-
                                                                                  in parental relation, teachers, administrators, and any distinguished educa-
dents in poverty, students with disabilities; and students with low academic
                                                                                  tor appointed pursuant to Education Law section 211-c.
achievement;
                                                                                      Notice of the written public comment period and public hearing shall
    (3) information where to obtain a copy of the proposed contract; and          include:
    (4) a description of the public comment process and public hearing                (1) a general description of the contract;
process.                                                                              (2) a detailed description of proposed allocations, on a school level, by
    Districts shall provide translations of the notices into languages other      program area, including details concerning proposed program additions
than English most commonly spoken in the district.                                and/or enhancements, by student achievement performance targets, and by
    The rule requires school districts to provide reasonable notice to the        affected student population groupings, including students with limited
public of each public hearing held as part of the public process to develop       English proficiency and students who are English language learners, stu-
contracts for excellence; to require school districts provide public notice of    dents in poverty, students with disabilities; and students with low academic
the hearings to the news media and conspicuously post public notice,              achievement;
consistent with the notice and time provisions of the Open Meetings Law;              (3) information where to obtain a copy of the proposed contract; and
and to provide for the participation in public hearings of any interested             (4) a description of the public comment process and public hearing
party.                                                                            process.
    Districts shall prepare, and make available upon request, a record of             The rule requires school districts to provide reasonable notice to the
public comment received. Not later than 20 days after expiration of the           public of each public hearing held as part of the public process to develop
public comment period or conclusion of public hearings, whichever occurs          contracts for excellence; to require school districts provide public notice of
later, each district shall prepare a public comment assessment containing a       the hearings to the news media and conspicuously post public notice,
summary of the substance of the comments received, grouped by subject             consistent with the notice and time provisions of the Open Meetings Law;
matter, and the district’s response to each substantive comment, including        and to provide for the participation in public hearings of any interested
a statement of any changes made to the contract as a result of such               party.
comment, or an explanation why the comment’s suggestions were not                     Districts shall provide translations of the notices into languages other
incorporated into the contract. The public comment assessment shall be            than English most commonly spoken in the district.
posted on a district website and made available upon request.                         Districts shall prepare, and make available upon request, a record of
    Districts shall develop a complaint form and instructions for its use,        public comment received. Not later than 12 days after expiration of the
including the locations and deadline for filing, and provide reasonable           public comment period or conclusion of public hearings, whichever occurs
notice to parents or persons in parental relation, of the procedures for          later, each district shall prepare a public comment assessment containing a
bringing a complaint concerning implementation of the district’s contract.        summary of the substance of the comments received, grouped by subject
    Districts shall provide translations of the form and notice into lan-         matter, and the district’s response to each substantive comment, including
guages other than English most commonly spoken in the district, and shall         a statement of any changes made to the contract as a result of such
post, and make available in schools and school district offices, its notice of    comment, or an explanation why the comment’s suggestions were not
complaint procedures and complaint form on a district website, and may            incorporated into the contract. The public comment assessment shall be
use additional methods to provide notice.                                         posted on a district website and made available upon request.
    The building principal, community superintendent or superintendent,               Districts shall develop a complaint form for complaints concerning
as applicable shall notify the complainant in writing of his or her complaint     implementation of the contract for excellence, and instructions for its use,
determination, including the basis for such determination within 30 days          including the locations and deadline for filing. Districts shall provide

10
NYS Register/May 28, 2008                                                                                                 Rule Making Activities

translations of the form and notice into languages other than English most       matter, and the district’s response to each substantive comment, including
commonly spoken in the district, and shall post, and make available in           a statement of any changes made to the contract as a result of such
schools and school district offices, its notice of complaint procedures and      comment, or an explanation why the comment’s suggestions were not
complaint form on a district website, and may use additional methods to          incorporated into the contract. The public comment assessment shall be
provide notice.                                                                  posted on a district website and made available upon request.
    Each district shall post, and make available for downloading, its notice         Districts shall develop a complaint form for complaints concerning
of complaint procedures and complaint form on a district website, and            implementation of the contract for excellence, and instructions for its use,
make them available in schools and school district offices. Districts may        including the locations and deadline for filing. Districts shall provide
use additional methods to provide notice, including providing copies in          translations of the form and notice into languages other than English most
district mailings and distributions.                                             commonly spoken in the district, and shall post, and make available in
    The building principal, community superintendent or superintendent,          schools and school district offices, its notice of complaint procedures and
as applicable shall notify the complainant in writing of his or her complaint    complaint form on a district website, and may use additional methods to
determination, including the basis for such determination within 30 days         provide notice.
from the date of receipt of the complaint, and an explanation of appeal              Each district shall post, and make available for downloading, its notice
procedures.                                                                      of complaint procedures and complaint form on a district website, and
    Upon appeal, the superintendent or community superintendent, as ap-          make them available in schools and school district offices. Districts may
plicable, shall notify the complainant in writing of the appeal determina-       use additional methods to provide notice, including providing copies in
tion, including the basis for such determination, and an explanation of the      district mailings and distributions.
appeal procedures.                                                                   The building principal, community superintendent or superintendent,
    Upon appeal of the complaint determination, or an appeal determina-          as applicable shall notify the complainant in writing of his or her complaint
tion of a superintendent or community superintendent, to the trustees/           determination, including the basis for such determination within 30 days
board of education or chancellor, written notice shall be provided the           from the date of receipt of the complaint, and an explanation of appeal
appeal determination, the basis for the determination, and a statement that      procedures.
the determination may be appealed to the Commissioner pursuant to Edu-               Upon appeal, the superintendent or community superintendent, as ap-
cation Law section 310.                                                          plicable, shall notify the complainant in writing of the appeal determina-
Revised Rural Area Flexibility Analysis                                          tion, including the basis for such determination, and an explanation of the
    Since publication of a Notice of Revised Rule Making in the State            appeal procedures.
Register on March 5, 2008, the proposed rule has been substantially                  Upon appeal of the complaint determination, or an appeal determina-
revised as set forth in the Revised Regulatory Impact Statement submitted        tion of a superintendent or community superintendent, to the trustees/
herewith.                                                                        board of education or chancellor, written notice shall be provided the
    The above revisions to the proposed rule require that the following          appeal determination, the basis for the determination, and a statement that
sections of the previously published Rural Area Flexibility Analysis be          the determination may be appealed to the Commissioner pursuant to Edu-
revised as follows:                                                              cation Law section 310.
    REPORTING, RECORDKEEPING AND OTHER COMPLIANCE                                    Depending on which allowable programs and activities are chosen,
REQUIREMENTS; AND PROFESSIONAL SERVICES:                                         districts may be required to hire or procure experts in: teacher professional
    Each district identified in the statute must prepare a contract for excel-   development, curriculum and/or instructional design, school improvement
lence pursuant to the rule’s provisions. Depending on the allowable pro-         and other related tasks and professional functions.
grams and activities chosen, the rule mandates or requires certain actions.      Job Impact Statement
    School districts will submit their contracts to the Commissioner for              Since publication of a Notice of Revised Rule Making in the State
approval, using an automated, web-based application.                             Register on March 5, 2008, the proposed rule has been substantially
    Each school district shall post its contract for excellence, and any         revised as set forth in the Revised Regulatory Impact Statement submitted
amended contract, on its website within 48 hours of submission to the            herewith.
commissioner for approval.                                                           The proposed rule, as so revised, is necessary to implement Education
    School districts must establish a 30-day period for receipt of written       Law section 211-d, as added by Chapter 57 of the Laws of 2007 and
public comment, and procedures for the conduct of public hearings on their       amended by Chapter 57 of the Laws of 2008, to establish allowable
proposed contracts, and provide reasonable notice to parents and persons         programs and activities, criteria for public reporting by school districts of
in parental relation, teachers, administrators, and any distinguished educa-     their total foundation aid expenditures and other requirements for purposes
tor appointed pursuant to Education Law section 211-c.                           of preparation of contracts for excellence by certain specified school
    Notice of the written public comment period and public hearing shall         districts. The proposed revised rule will not have an adverse impact on jobs
include:                                                                         or employment opportunities. Because it is evident from the nature of the
    (1) a general description of the contract;                                   rule that it will have a positive impact, or no impact, on jobs or employ-
    (2) a detailed description of proposed allocations, on a school level, by    ment opportunities, no further steps were needed to ascertain those facts
program area, including details concerning proposed program additions            and none were taken. Accordingly, a job impact statement is not required
and/or enhancements, by student achievement performance targets, and by          and one has not been prepared.
affected student population groupings, including students with limited           Summary of Assessment of Public Comment
English proficiency and students who are English language learners, stu-              Since publication of a Notice of Revised Rule Making in the State
dents in poverty, students with disabilities; and students with low academic     Register on March 5, 2008, the State Education Department (SED) re-
achievement;                                                                     ceived substantial public comment. A summary of the public comment
    (3) information where to obtain a copy of the proposed contract; and         follows:
    (4) a description of the public comment process and public hearing               I. Public Participation/Public Process
process.                                                                             1. In response to comment to allow all interested parties to participate
    The rule requires school districts to provide reasonable notice to the       in the public process for development of Contracts for Excellence and
public of each public hearing held as part of the public process to develop      require public hearings be held pursuant to Open Meetings Law require-
contracts for excellence; to require school districts provide public notice of   ments, section 100.13(e)(2)(ii)(b) was revised to require school districts to
the hearings to the news media and conspicuously post public notice,             provide reasonable notice to the public of each public hearing held as part
consistent with the notice and time provisions of the Open Meetings Law;         of the public process to develop contracts for excellence; to require dis-
and to provide for the participation in public hearings of any interested        tricts to provide public notice of the hearings to the news media and
party.                                                                           conspicuously post public notice, consistent with the notice and time
    Districts shall provide translations of the notices into languages other     provisions of the Open Meetings Law; and to provide for the participation
than English most commonly spoken in the district.                               in public hearings of any interested party including, but not limited to,
    Districts shall prepare, and make available upon request, a record of        parents and persons in parental relation to students, teachers, administra-
public comment received. Not later than 12 days after expiration of the          tors and distinguished educators. However, the provisions in
public comment period or conclusion of public hearings, whichever occurs         100.13(e)(2)(i) relate to the consultation process for development of con-
later, each district shall prepare a public comment assessment containing a      tracts for excellence, and statute restricts participation in such instance to
summary of the substance of the comments received, grouped by subject            parents and persons in parental relation to students, teachers, administra-

                                                                                                                                                           11
Rule Making Activities                                                                                            NYS Register/May 28, 2008

tors and distinguished educators. Therefore, no changes have been made to            III. Class Size Reduction
such provisions.                                                                     1. In response to comment that public needs better information on the
    2. In response to comment to require that contracts submitted to the         number of additional teachers hired and additional classes formed to lower
commissioner for approval be made publicly available, section                    class size, and to what levels class sizes have been reduced as a result, SED
100.13(d)(2)(iv)(a) has been added to require each school district to post       agrees and will study this with the Commissioner’s class size panel.
its contract on the district’s website, within 48 hours of submission to the         2. In response to comment that data on number of classes, average class
Commissioner.                                                                    size and number of classroom teachers be provided for baseline year and
    3. In response to a comment that the Commissioner should review              each year thereafter, section 100.13(c)(2)(i)(a)(1)(ii) has been revised to
district’s public process to ensure compliance with 100.13(d) before ap-         provide for such data for the 2007-2008 school year and continuing for
proving their contract, section 100.13(b)(2) has been revised to clarify that    each school year thereafter up to and including the 2011-2012 school year.
the Commissioner’s approval will be based upon the contract meeting the              3. In response to comment that NYC should report staffing of class-
provisions of the entire section 100.13, which would include the public          room teachers in core instructional course, SED notes this recommenda-
process provisions. In addition, this will be incorporated into the superin-     tion can be considered in Commissioner’s class size panel’s deliberations
tendent’s certification statement on the on-line Contracts for Excellence            4. In response to comment that NYC be required to maintain effort
system.                                                                          despite budget cuts, SED notes that pursuant to recent amendment of
    4. In response to comment to require any amendment resulting in a            Education Law § 211-d, all contract districts are required under the 2008-
reallocation of resources of greater than 5% be subject to public comment        2009 application system to maintain base year contract amount of expendi-
requiring a 15 day notice and a 15 day comment period, section                   tures, allowing for reallocation to other approval program areas.
100.13(b)(4)(iii) has been added to require the amended contract be posted           Other comments were deemed to not require changes to the regula-
on a district website within 48 hours of submission. In addition, SED notes      tions, because SED deemed the existing regulation provisions to be suffi-
the amended contract would be subject to the complaint process.                  cient to address the comments concerns, or disagreed with comments.
    Additional comments were determined to require revisions to statute          These include: (1) parents should be allowed to comment on class size
before regulations could be adopted. These include: (1) allow NYC county         reduction plan; and (2) capital plan should be aligned with class size
level public hearings to incorporate the community district education            reduction plan; and (3) hold NYC to class size standards at beginning of
council public meeting; (2) require all complaints be initiated with filing      school year.
with community superintendent; and (3) extend NYC public comment                     IV. English Language Learners (ELL)
process to school districts in rest of State.                                        1. In response to comment to require district and school level expendi-
    Other comments were deemed to not require changes to the regula-             ture projections/reports to outline the amount of funds serving ELL’s, as
tions, because SED deemed the existing regulation provisions to be suffi-        well as data on students served, teachers/staff hired, programs established
cient to address the comments concerns, or disagreed with comments.              or expanded, class size reductions and focused professional development
These include: (1) require transcripts of public hearing comments be             hours, SED notes these comments will be taken into account as options are
posted on district’s website, (2) require consultation with professional         developed for ELL allowable programs.
educators, community-based organizations, education experts, bilingual               2. In response to comment to expand allowable activities under the
and special education coordinators; (3) public hearings and meeting be           existing five contract program areas, to include ELL-focused strategies:
accessible to those with limited English proficiency; (4) require districts to   more teachers; teacher recruitment/retention; professional development;
record persons making comments and include in public comment assess-             extended school day, Saturday academy and Summer School; books and
ment; (5) provide in NYC, a public hearing shall be held within each             learning resources in various languages; students with interrupted formal
county of the city, a transcript be included when contract is submitted to       education intervention and instruction; develop appropriate tests and mon-
commissioner, and that each community district contract be submitted by          itor instruction and assessment implementations; guidance, mentoring and
community superintendent to community school district education council          social support services for immigrant/ELL youth; high school readiness
for review at a public meeting; (6) regulation doesn’t provide for public        and dropout prevention; immigration/LEP parent engagement and leader-
process to develop contracts; (7) delete requirement that school district        ship training, SED notes that consistent with recent amendment to Educa-
must respond to all substantive comments; and (8) school districts should        tion Law section 211-d, the regulation has been revised to add a sixth
provide public comment assessment and public hearing transcript when             category of allowable programs and services to provide for model pro-
they submit contracts to commissioner.                                           grams for students with limited English proficiency, Including programs
    II. Complaint procedures                                                     serving limited English proficient students, native language support, new
    1. In response to comment to require school districts to make complaint      immigrant programs, recruitment and retention of bilingual general educa-
forms available in other forms than just on the school district website,         tion and special education teachers, English as a Second Language teach-
section 100.13(e)(2)(ii)(c) has been revised to require districts to make        ers, bilingual teachers of students with speech and language disabilities,
copies of the complaint notice and complaint form available in schools and       and bilingual pupil personnel staff, and parent involvement.
district offices.                                                                    Other comments were deemed to not require changes to the regula-
    One comment requests provision be added that no reprisal of any kind         tions, because SED deemed the existing regulation provisions to be suffi-
may be taken by a school district or any employee of a school district           cient to address the comments concerns, or disagreed with comments.
against any person bringing a complaint under this procedure. While SED          These include: (1) establish separate “predominately benefit” ELL bench-
agrees that no reprisals may be taken, remedies exist elsewhere in the law       mark; and (2) add ELL students who have not achieved sufficient scores on
and it is not necessary to include this provision in the regulations.            the limited English proficiency test to the definition of “students with low
    Some comments require a revision to statutes, including: (1) allowing        academic achievement.”
individual students and staff and representative organizations to bring              V. Contract Approval and Amendment
complaints concerning district’s implementation of the contract; (2) pro-            1. In response to comment that limiting contract funds to five allowable
vide for expedited appeal procedure directly to Commissioner; (3) clarify        programs limits districts’ ability to continue systemic reform, SED notes
that use or availability of the procedures provided in regulation shall not be   that, consistent with the recent amendment to Education Law § 211-d, the
construed as limiting exercise of any of the rights or remedies available to     regulation has been revised to provide for a sixth allowable program for
any person under state or federal law.                                           LEP model programs. Any additional programs would require statutory
    Other comments were deemed to not require changes to the regula-             change.
tions, because SED deemed the existing regulation sufficient to address the          2. In response to comment that SED’s approval needed for any dis-
comments’ concerns, or disagreed with the comments. These include: (1)           trict’s reallocation of last year’s contract funds to an allowable program,
complaint form and complaint process too complicated and burdensome              SED agrees and notes this is being incorporated into the 2008-2009 appli-
for parents; (2) require consultation with parent and community organiza-        cation system.
tions when developing complaint form; (3) allow complaints to be brought             Other comments were deemed to not require changes to the regula-
at any time during school year of contract; (4) require school district to       tions, because SED deemed the existing regulation provisions to be suffi-
provide written response if it fails to investigate and respond to complaint;    cient to address the comments concerns, or disagreed with comments.
(5) require school district to publicly report complaint resolutions; (6)        These include: (1) amendment process be more flexible and clarify amend-
specify criteria for when notice is deemed reasonable; and (7) require           ment provisions; and (2) provide for 30-day public comment period once
notice of public comment include information about contract planning and         contracts are submitted to commissioner; and (3) specify date for SED
approval process;.                                                               contract approval notification.

12
NYS Register/May 28, 2008                                                                                                   Rule Making Activities

    VI. Allocation, Targeting and Maintenance of Effort                           school district to agree that the attendance of a member of the committee is
    1. In response to comment to clarify “contract amount” to provide for         not necessary or that a member may be excused from attending.
second year contract for excellence requirements enacted by recent amend-             Section 200.4, as amended, makes technical amendments relating to
ments to Education Law § 211-d, SED notes proposed rule will be revised           educationally related support services and written notice upon graduation
to refer to annual contract amount.                                               or aging out; establishes procedures for referrals and requests for referrals
    2. In response to comment that performance or achievement goals are           for an initial evaluation of a student for special education services, written
not enough, and that there needs to be measures of inputs as well, SED            agreements between a parent and school district that a reevaluation is
agrees and notes this has been incorporated in the web-based reporting            unnecessary, and amendments to individualized education programs
system consistent with statutory requirements.                                    (IEPs) after the annual review has been conducted; and adds that agree-
    3. In response to comment to revise applicability provisions to also          ments between the parent and school district to extend the individual
include schools that are below the school district (or State) average on the      evaluation timeline for transfer students or students suspected of having a
ELA and Math assessment or the 4-year graduation rate, SED notes regula-          learning disability be in writing.
tion has been revised in response to recent amendments to Education Law               Section 200.5, as amended, makes technical amendments; adds that the
§ 211-d to delete specific applicability provisions in the regulation, and        meeting notice inform parents of a child previously served under EI of
instead reference the statute for purposes of determining applicability.          their right to request that an invitation to the initial CPSE meeting be sent
    4. In response to comment to allow schools to target funds to predomi-        to the EI coordinator or other representatives of the EI system to assist in
nately benefit students having the greatest educational needs who are             the smooth transition of services; and repeals the provision providing that
enrolled in schools identified under section 100.2(p) and not only to             parties to the mediation may be required to sign a confidentiality pledge
students enrolled in SURR schools, SED agrees and notes that the refer-           prior to the commencement of the process.
ence to SURR schools was just an example of acceptable strategies, and                Section 200.6, as amended, makes a technical amendment.
does not preclude others.                                                             Section 200.7, as amended, adds a cross reference to the procedures
    A comment that cap for maintenance of existing programs be changed            relating to committee member attendance in section 200.3 of the Regula-
to 25% for all districts, would require a statutory change.                       tions.
    Other comments were deemed to not require changes to the regula-                  Section 200.16, as amended, conforms State regulations to Education
tions, because SED deemed the existing regulation provisions to be suffi-         Law and to amended section 200.4(a) relating to individuals authorized to
cient to address the comments concerns, or disagreed with comments.               make a referral of a preschool student suspected of having a disability; and
These include: (1) that large city school districts outside NYC should be         conforms State regulations to Education Law relating to the timeline for
allowed to use funds for district-wide initiatives; (2) provide that schools in   the provision of services to preschool students with disabilities.
improvement status shall receive at least pro rata share based on share of            Section 201.11, as amended, makes a technical amendment relating to
actual high need, low-performing students, instead of share of total district     expedited due process hearing procedures.
need; (3) include contract terms in each school’s comprehensive education         Revised rule compared with proposed rule: Substantial revisions were
plan; and (4) regulation’s lack of specificity resulted in non-uniform re-        made in sections 200.3(f), 200.4(a)(1), (2), (9), (g) and 200.7(d)(1).
sponse from districts and in may cases lacked transparency.                       Text of revised proposed rule and any required statements and
                                                                                  analyses may be obtained from: Anne Marie Koschnick, Legal Assis-
                  REVISED RULE MAKING                                             tant, Office of Counsel, Education Department, State Education Bldg.,
                 NO HEARING(S) SCHEDULED                                          Rm. 148, Albany, NY 12234, (518) 473-8296, e-mail: legal@mail.
                                                                                  nysed.gov
Special Education Programs and Services                                           Data, views or arguments may be submitted to: Rebecca H. Cort,
I.D. No. EDU-08-08-00013-RP                                                       Deputy Commissioner, VESID, Education Department, Rm. 1606, One
                                                                                  Commerce Plaza, Albany, NY 12234, (518) 473-2714, e-mail:
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                       rcort@mail.nysed.gov
cedure Act, NOTICE is hereby given of the following revised rule:                 Public comment will be received until: 30 days after publication of this
Revised action: Amendment of sections 177.1, 200.1, 200.3-200.7,                  notice.
200.16 and 201.11 of Title 8 NYCRR.                                               Revised Regulatory Impact Statement
Statutory authority: Education Law, sections 207 (not subdivided),                    Since publication of a Notice of Proposed Rule Making in the State
3208(1-5), 3214(3), 3602-c, 3713(1), (2), 4002(1-3), 4308(3), 4355(3),            Register on February 20, 2008, the following substantial revisions were
4401(1-11), 4402(1-7), 4403(3), 4404(1-5), 4404-a(1-7) and 4410(13)               made to the proposed rule:
Subject: Special education programs and services.                                     Section 200.3(f) was revised to incorporate the procedures relating to
Purpose: To conform the commissioner’s regulations to chapter 378 of              committee member attendance consistent with Education Law sections
the Laws of 2007, the Individuals with Disabilities Education Act (IDEA)          4402(1)(b)(1)(b-1) through (b-3), 4402(1)(b)(1)(d), and 4410(3)(a)(3)
(20 USC 1400 et seq.), as amended by Public Law 108-446, and the final            though (5), as amended by Chapter 378 of the Laws of 2007.
amendments to 34 CFR part 300; ensure that chairpersons of committees                 Section 200.4(a)(1) was revised to clarify that a designee of a school
on special education are appropriately qualified; and establish procedures        district in which a student is eligible to attend may refer a student sus-
when a district receives a request for referral of a student for an initial       pected of having a disability for an initial evaluation.
evaluation for special education services.                                            Proposed section 200.4(a)(2) was revised to clarify that a professional
Substance of revised rule: The Commissioner of Education proposes to              staff member of a public or private school in which a student is eligible to
amend sections 177.1, 200.1, 200.3 through 200.7, 200.16 and 201.11 of            attend may request a referral of a student for an initial evaluation; to clarify
the Commissioner’s Regulations, effective August 21, 2008, relating to the        that a request for referral may be made to the school where the student is
provision of special education to students with disabilities. The following       eligible to attend; to require that the school district offer the parent the
is a summary of the substance of the proposed amendments.                         opportunity to meet with the building administrator and/or a designee of
    Section 177.1, as amended, requires the parent of a student parentally        the school district authorized to make a referral, and the professional staff
placed in a nonpublic school to request services from the school district         person of a school district who may have made the request for a referral;
responsible for providing such services in accordance with section 3602-          and to request that, upon the request of the parent or school district, any
c(2) of the Education Law.                                                        other person making a request for referral must have the opportunity to
    Section 200.1, as amended, revises the definitions of related services,       participate in a meeting with the parent to discuss such request.
school health services and transition services.                                       Section 200.4(a)(9) was revised to require that in a meeting to discuss
    Section 200.3, as amended, adds that the representative of the school         the withdrawal of a parent request for a referral for special education, the
district must serve as the chairperson of a committee on special education        professional staff member of the school district who made the request for
(CSE) or subcommittee; requires for a child in transition from early inter-       referral that resulted in the parent referral be invited to participate in a
vention (EI) programs and services that the school district, at the request of    meeting held pursuant to section 200.4(a)(9) to determine if the student
the parent, invite an appropriate professional designated by the agency           would benefit from general education support services and receive a copy
charged with the responsibility for the preschool child to participate in a       of any agreement to withdraw the referral.
committee on preschool special education meeting (CPSE) meeting; and                  Section 200.4(g) has been revised to incorporate the procedures relat-
incorporates the Education Law statutory procedures for a parent and              ing to changes to an IEP without a meeting consistent with Education Law

                                                                                                                                                              13
Rule Making Activities                                                                                                NYS Register/May 28, 2008

sections 4308(2)(i), 4355(2)(i), 4402(1)(b)(3)(b) and 4410(3)(a)(6), as                Section 177.1 requires the parent of a student parentally placed in a
amended by Chapter 378 of the Laws of 2007.                                        nonpublic school to request services from the school district responsible
    Proposed section 200.7(d)(1)(i)(c) has been amended to add a cross             for providing such services in accordance with section 3602-c(2) of the
reference to the procedures relating committee member attendance in                Education Law.
section 200.3(f).                                                                      Section 200.1 revises the definitions of related services, school health
    The above revisions to the proposed rule require that the Local Govern-        services and transition services.
ment Mandates section of the previously published Regulatory Impact                    Section 200.3 adds that the representative of the school district must
Statement be revised to read as follows:                                           serve as the chairperson of a committee on special education (CSE) or
    LOCAL GOVERNMENT MANDATES:                                                     subcommittee; requires for a child in transition from early intervention
    In general, the amendments are necessary to conform the Commis-                (EI) programs and services that the school district, at the request of the
sioner’s Regulations to recent changes in NYS Education Law and the                parent, invite an appropriate professional designated by the agency
IDEA statutes and regulations and do not impose any additional program,            charged with the responsibility for the preschool child to participate in a
service, duty or responsibility upon local governments beyond those im-            committee on preschool special education (CPSE) meeting; and incorpo-
posed by federal and State statutes and regulations.                               rates the procedures for a parent and school district to agree that the
    Section 177.1 requires the parent of a student parentally placed in a          attendance of a member of the committee is not necessary or that a member
nonpublic school to request services from the school district responsible          may be excused pursuant to the procedures established in New York State
for providing such services in accordance with section 3602-c(2) of the            (NYS) Education Law.
Education Law.                                                                         Section 200.4 establishes procedures for referrals and requests for
    Section 200.1 revises the definitions of related services, school health       referrals for an initial evaluation of a student for special education services,
services and transition services.                                                  written agreements between a parent and school district that a reevaluation
    Section 200.3 adds that the representative of the school district must         is unnecessary, and changes to individualized education programs (IEPs)
serve as the chairperson of a committee on special education (CSE) or              without a meeting after the annual review has been conducted; and adds
subcommittee; requires for a child in transition from early intervention           that agreements between the parent and school district to extend the indi-
(EI) programs and services that the school district, at the request of the         vidual evaluation timeline for transfer students or students suspected of
parent, invite an appropriate professional designated by the agency                having a learning disability be in writing.
charged with the responsibility for the preschool child to participate in a            Section 200.5 adds that the meeting notice inform parents of a child
committee on preschool special education (CPSE) meeting; and incorpo-              previously served under EI of their right to request that an invitation to the
rates the procedures for a parent and school district to agree that the            initial CPSE meeting be sent to the EI coordinator or other representatives
attendance of a member of the committee is not necessary or that a member          of the EI system to assist in the smooth transition of services; and repeals
may be excused pursuant to the procedures established in NYS Education             the provision providing that parties to a mediation session may be required
Law.                                                                               to sign a confidentiality pledge prior to the commencement of the process.
    Section 200.4 establishes procedures for referrals and requests for                Section 200.7 adds a cross reference to the procedures relating to
referrals for an initial evaluation of a student for special education services,   committee member attendance in section 200.3 of the Regulations.
written agreements between a parent and school district that a reevaluation            Section 200.16 conforms State regulations to Education Law and to
is unnecessary, and changes to individualized education programs (IEPs)            amended section 200.4(a) relating to individuals authorized to make a
without a meeting after the annual review has been conducted; and adds             referral of a preschool student suspected of having a disability; and con-
that agreements between the parent and school district to extend the indi-         forms State regulations to Education Law relating to the timeline for the
vidual evaluation timeline for transfer students or students suspected of          provision of services to preschool students with disabilities.
having a learning disability be in writing.                                            Consistent with statutory requirements, the proposed rule would re-
    Section 200.5 adds that the meeting notice inform parents of a child           quire that written agreements and parent notification relating to attendance
previously served under EI of their right to request that an invitation to the     of CSE or CPSE members, reevaluations and changes to the IEP without a
initial CPSE meeting be sent to the EI coordinator or other representatives        meeting be in writing. Changes also require that parent and school district
of the EI system to assist in the smooth transition of services; and repeals       agreements to extend the individual evaluation timeline for transfer stu-
the provision providing that parties to a mediation session may be required        dents or students suspected of having a learning disability be in writing.
to sign a confidentiality pledge prior to the commencement of the process.
    Section 200.7 adds a cross reference to the procedures relating to             Revised Rural Area Flexibility Analysis
committee member attendance in section 200.3(f) of the Regulations.                     Since publication of a Notice of Proposed Rule making in the State
    Section 200.16 conforms State regulations to Education Law and to              Register on February 20, 2008, the proposed rule has been substantially
amended section 200.4(a) relating to individuals authorized to make a              revised as set forth in the revised Regulatory Impact Statement submitted
referral of a preschool student suspected of having a disability; and con-         herewith.
forms State regulations to Education Law relating to the timeline for the              The revisions to the proposed rule require the Reporting, Record Keep-
provision of services to preschool students with disabilities.                     ing and Other Compliance Requirements section of the previously pub-
Revised Regulatory Flexibility Analysis                                            lished Rural Area Flexibility Analysis to be revised to read as follows:
     Since publication of a Notice of Proposed Rule making in the State                REPORTING, RECORDKEEPING AND OTHER COMPLIANCE
Register on February 20, 2008, the proposed rule has been substantially            REQUIREMENTS AND PROFESSIONAL SERVICES:
revised as set forth in the revised Regulatory Impact Statement submitted              In general, the amendments are necessary to conform the Commis-
herewith.                                                                          sioner’s Regulations to recent changes in State statute (as amended by
    The revisions to the proposed rule require the Compliance Require-             Chapter 378 of the Laws of 2007), which became effective June 30, 2007,
ments section of the previously published Regulatory Flexibility Analysis          and the federal IDEA statutes and regulations (20 U.S.C. 1400 et. seq., as
be revised to read as follows:                                                     amended by Public Law 108-446 and the final federal amendments to 34
    COMPLIANCE REQUIREMENTS:                                                       CFR Part 300), and do not impose any additional compliance requirements
    In general, the amendments are necessary to conform the Commis-                upon rural areas beyond those imposed by federal statutes and regulations.
sioner’s Regulations to recent changes in State statute (as amended by                 The amendments relating to the chairperson of the committee and
Chapter 378 of the Laws of 2007), which became effective June 30, 2007,            requests for referral are not required by federal law or regulations, but are
and the federal IDEA statutes and regulations (20 U.S.C. 1400 et. seq., as         necessary to ensure that chairpersons of committees on special education
amended by Public Law 108-446 and the final federal amendments to 34               are appropriately qualified and to establish procedures when a district
CFR Part 300) and do not impose any additional compliance requirements             receives a request for referral of a student for an initial evaluation for
upon local governments beyond those imposed by federal statutes and                special education services, and are otherwise consistent with federal stan-
regulations. The amendments relating to the chairperson of the committee           dards.
and requests for referral are not required by federal law or regulations, but          Section 177.1 requires the parent of a student parentally placed in a
are necessary to ensure that chairpersons of committees on special educa-          nonpublic school to request services from the school district responsible
tion are appropriately qualified and to establish procedures when a district       for providing such services in accordance with section 3602-c(2) of the
receives a request for referral of a student for an initial evaluation for         Education Law.
special education services, and are otherwise consistent with federal stan-            Section 200.1 revises the definitions of related services, school health
dards.                                                                             services and transition services.

14
NYS Register/May 28, 2008                                                                                                   Rule Making Activities

    Section 200.3 adds that the representative of the school district must         § 902(2)(b), which requires that school nurses shall be registered profes-
serve as the chairperson of a committee on special education (CSE) or              sional nurses.
subcommittee; requires for a child in transition from early intervention               §§ 200.3(a)(1)(v) and 200.3(c)(2)(iv) - Committee Chairperson
(EI) programs and services that the school district, at the request of the             COMMENT:
parent, invite an appropriate professional designated by the agency                    Regulations limit who district may employ to fill the chairperson’s role
charged with the responsibility for the preschool child to participate in a        and provide insufficient notice to replace existing chairpersons. Grandfa-
committee on preschool special education (CPSE) meeting; and incorpo-              ther-in existing chairpersons. Absent legislative mandate, eliminate new
rates the procedures for a parent and school district to agree that the            chairperson position. Include language identifying prerequisite knowl-
attendance of a member of the committee is not necessary or that a member          edge/training, including certification in special education, to ensure deci-
may be excused pursuant to the procedures established in New York State            sions based on students’ needs.
(NYS) Education Law.                                                                   DEPARTMENT RESPONSE:
    Section 200.4 establishes procedures for referrals and requests for                The amendment ensures CSE and subcommittee chairpersons qualifi-
referrals for an initial evaluation of a student for special education services,   cations are consistent with CPSE chairpersons. Consistent with State and
written agreements between a parent and school district that a reevaluation        federal law and regulations, each committee must include a “representative
is unnecessary, and changes to individualized education programs (IEPs)            of the school district who is qualified to provide or supervise special
without a meeting after the annual review has been conducted; and adds             education and who is knowledgeable about the general education curricu-
that agreements between the parent and school district to extend the indi-         lum and the availability of resources of the school district, provided that an
vidual evaluation timeline for transfer students or students suspected of          individual who meets these qualifications may also be the same individual
having a learning disability be in writing.                                        appointed as the special education teacher or the special education pro-
    Section 200.5 adds that the meeting notice inform parents of a child           vider of the student or the school psychologist.” Therefore, the provision
previously served under EI of their right to request that an invitation to the     requiring the school district representative to also serve as the chairperson
initial CPSE meeting be sent to the EI coordinator or other representatives        of the committee does not require the school district to “hire” additional
of the EI system to assist in the smooth transition of services; and repeals       staff to fill this role. Education Law § 4403 authorizes Department to adopt
the provision providing that parties to a mediation session may be required        regulations regarding students with disabilities as the Commissioner
to sign a confidentiality pledge prior to the commencement of the process.         deems in their best interests. While Education Law § 4410 and section
    Section 200.7 adds a cross reference to the procedures relating to             200.3 require the school district representative serve as the CPSE chairper-
committee member attendance in section 200.3 of the Regulations.                   son, there is no contrary language in § 4402, and under the IDEA the
    Section 200.16 conforms State regulations to Education Law and to              standards must be consistent and provide the same protections for students
amended section 200.4(a) relating to individuals authorized to make a              with disabilities ages 3-21. Applicable law and regulations confer specific
referral of a preschool student suspected of having a disability; and con-         responsibilities to chairperson and it is appropriate such functions be
forms State regulations to Education Law relating to the timeline for the          carried out by appropriately qualified individuals, and the CSE and CPSE
provision of services to preschool students with disabilities.                     chairperson qualifications be the same. The Department will address other
    Consistent with statutory requirements, the proposed rule would re-            comments relating to the chairperson’s role in guidance.
quire that written agreements and parent notification relating to attendance           § 200.3(f) – CSE, CPSE, Subcommittee and Multidisciplinary Team
of CSE or CPSE members, reevaluations and changes to the IEP without a             Member Attendance
meeting be in writing. Changes also require that parent and school district            COMMENT:
agreements to extend the individual evaluation timeline for transfer stu-
                                                                                       Add statutory language regarding procedures for parent and district
dents or students suspected of having a learning disability be in writing.
                                                                                   agreements on members’ attendance at meetings.
    The amendments do not impose any additional professional service
requirements on rural areas, beyond those imposed by such federal statutes             DEPARTMENT RESPONSE:
and regulations and State statutes.                                                    The revised regulations incorporate specific Education Law procedures
                                                                                   on committee member attendance from Education Law.
Job Impact Statement
     Since publication of a Notice of Proposed Rule Making in the State                COMMENT:
Register on February 20, 2008, the proposed rule has been substantially                Do not allow excusals of CSE members from meetings to review and
revised as set forth in the Revised Regulatory Impact Statement submitted          revise IEPs. Define “necessary” and “unnecessary” participants. Require
herewith.                                                                          notice to members of proposed decision to excuse, reasons for excusal and
    The proposed revised rule is necessary in order to ensure compliance           procedures to provide input into meeting. Require notice to excused mem-
with federal law and regulations and State law relating to the education of        bers and opportunity comment on matters to be discussed at meeting.
students with disabilities, ages 3-21; to ensure that chairpersons of com-         Clarify that failure of excused member to submit their input doesn’t pre-
mittees on special education are appropriately qualified; and to establish         vent convening of IEP meeting. Clarify excusal of parent member is
procedures when a district receives a request for referral of a student for an     governed by § 200.3(a)(2)(v). Mirror § 200.5(c) notice requirements for
initial evaluation for special education services. The proposed revised rule       IEP meetings and clarify request for excusal be in writing and received not
will not have a substantial impact on jobs and employment opportunities.           less than five days prior to meeting. Interpret term “reasonable time.” If
Because it is evident from the nature of the rule that it will not affect job      there is an emergency or unavoidable scheduling conflict, require parent
and employment opportunities, no affirmative steps were needed to ascer-           receipt of excusal notice and member’s written input at least 24 hours prior
tain that fact and none were taken. Accordingly, a job impact statement is         to meeting. Clarify where member is unable to attend because of an
not required, and one has not been prepared.                                       emergency/scheduling conflict, the written statement may be provided to
                                                                                   the parent “as soon as practicable.”
Summary of Assessment of Public Comment
                                                                                       DEPARTMENT RESPONSE:
     The following is a summary of the substantive public comments re-
ceived by the State Education Department, in response to the Notice of                 The regulation is necessary to comply with Education Law §§ 4308,
Proposed Rule Making published in the State Register on February 20,               4355, 4402 and 4410, as amended by Chapter 378 of the Laws of 2007.
2008.                                                                              While the revised regulations incorporate statutory language for clarity
                                                                                   purposes, no changes have been made that would add to or modify the
    § 200.1(ss) School Health Services and School Nurse Services
                                                                                   procedures as enacted by State law.
    COMMENT:
    Clarify “other qualified person” in the definition of school health                § 200.3(a)(2)(viii) - Early Intervention (EI) Representative
services and whether person providing school nurse services must be a                  COMMENT:
registered nurse or may be another health professional as referenced in                Do not require for a child transitioning from EI, that the EI representa-
Education Law § 902(2)(b).                                                         tive only be invited to a CPSE meeting at the parent’s request.
    DEPARTMENT RESPONSE:                                                               DEPARTMENT RESPONSE:
    “Other qualified persons” who may provide school health services                   The amendment is necessary to conform to federal requirements and
must be determined in accordance with students’ individual health needs            Education Law § 4410(3)(a)(1), as amended by Chapter 378 of the Laws of
and consistent with the scope of practice of professionals providing such          2007.
services. The regulation is consistent with federal requirement that school            § 200.4(a)(1) and (2) - Referral for initial evaluation and Request for
nurse services are services provided by a qualified school nurse (i.e., nurse      Referral
that meets State standards for a qualified school nurse) and Education Law             COMMENT:

                                                                                                                                                             15
Rule Making Activities                                                                                                 NYS Register/May 28, 2008

    Allow concerned individuals with direct knowledge of child, early                of § 200.4(a)(9) if there is agreement to proceed with an initial evaluation
childhood direction centers, 4410 schools, EI providers, student’s religious         and, if there is an option to hold another meeting, what the purpose of the
or charter school to make referrals. Add that a school district designee             meeting would be.
authorized to make a referral includes a professional staff member such as               DEPARTMENT RESPONSE:
a school psychologist. Clarify who can make a referral for an initial                    The withdrawal procedures in § 200.4(a)(7) apply to referrals not re-
evaluation for a parentally placed private school student.                           quests for referral. If parents refuse to give consent or fail to respond to a
    DEPARTMENT RESPONSE:                                                             request to provide consent for an initial evaluation, the district may, but is
    Language is consistent with federal and State law requirements author-           not required to, continue to pursue the evaluation by using the due process
izing who can make a referral for an initial evaluation. § 3602-c, as                procedures described in § 200.5 of the Regulations, with the exception of
amended by Chapter 378 of the Laws of 2007, requires school district of              referrals of preschool students, home schooled students or students who
location be responsible for evaluation and possible identification as a              are parentally placed in a private school. If a meeting to discuss a request
student with a disability of all students attending nonpublic schools located        for referral results in the parent making a referral, the building administra-
within the school district. Nothing in § 200.4(a) contrary to this require-          tor has the option, pursuant to Education Law § 4401-a and § 200.4(a)(9)
ment or precludes a referral request being made to the district where the            of the Regulations, to request a meeting with the parent to discuss addi-
nonpublic school is located or district where parent resides. Education Law          tional general education support services.
§ 3602-c requires requests for educational services for students with disa-              COMMENT:
bilities, not referrals, be filed with the district of location on or by June 1          Removing term “or person in parental relation” implies only actual
preceding school year for which request made.                                        parent can sign forms or refer student.
    COMMENT:                                                                             DEPARTMENT RESPONSE:
    Require child’s teacher/other school professionals participate in meet-              “Parent”, as defined in 200.1(ii), includes person in parental relation-
ings where referral withdrawal discussed. Require staff member submit-               ship to the child as defined in § 3212 of the Education Law.
ting referral request to receive a copy of agreement between parent and                  COMMENT:
district, instructional strategies to be used, data to be collected and pro-             Further train CSE/CPSE chairs and those that can make a referral.
posed duration of program; provide opportunity for follow-up conference                  DEPARTMENT RESPONSE:
on student progress; and place copy of agreement in student’s record.                    The regulation does not add additional training requirements for CSE/
Clarify who will discuss general education supports with parents at meet-            CPSE chairpersons. However, the Department will offer a CSE/CPSE
ing to discuss referral request. In cases that fail to meet § 200.4(a)(2)(iii)       chairperson training course beginning in the 2008-09 school-year.
requirements regarding required content of a referral request, require per-              200.4(g)(1) - Amendments to an IEP without a meeting
son who declines to initiate a referral to advise building administrator and             COMMENT:
person requesting referral of the reasons in writing.                                    Decisions made outside a formal CSE meeting should be with parent’s
    DEPARTMENT RESPONSE:                                                             informed choice and agreement. Replace Education Law references with
    The revised regulations require district to offer parent the opportunity         statutory language regarding mandated procedures for IEP amendments.
to meet with school district representatives and the professional staff              Discussions regarding IEP amendments should happen before a change to
member who may have initiated the request for the referral. Decision                 the IEP is made. Require input from service providers be incorporated into
regarding who should represent the school district in such a meeting is best         document that amends/modifies student’s IEP. Require full IEP team par-
left to the district’s discretion. The revised regulations also require that in a    ticipation in development of IEP written amendment, even if individual
meeting to discuss the withdrawal of a parent request for a referral for             members’ input consists solely of written input. Add language subjecting
special education, the professional staff member who made a request for              changes in IEP to requirements in § 200.4(e)(3). Require a student’s pri-
referral that resulted in the parent referral be invited to participate in a         vate school be notified of any meeting between the parent and district
meeting held pursuant to § 200.4(a)(9) to determine if the student would             representative to discuss changes to IEP without a CSE meeting and add a
benefit from additional general education support services.                          requirement that a representative of such school be invited to participate.
    COMMENT:                                                                         Allowing changes to IEP without a meeting is useful but must be used with
                                                                                     great care and communication between parent and district.
    Require written request for referral be sent to committee chairperson
                                                                                         DEPARTMENT RESPONSE:
without screening for the appropriateness of the request. Require that the
                                                                                         Revised regulations incorporate specific procedures relating to IEP
parent immediately receive a copy of the request when it is received by the
                                                                                     amendments consistent with Education Law that require districts to pro-
CSE and that the notice be in parent’s native language or other mode of
                                                                                     vide parents with written proposal to amend IEP and allowing parents
communication. Clarify that ten-day period of action begins when building
                                                                                     opportunity to consult with appropriate personnel or related service prov-
administrator or other school employee receives the written request for a
                                                                                     iders concerning proposed changes. We agree the procedures to change
referral. Impose additional timelines for requests for referrals to ensure the
                                                                                     IEP after an annual review meeting without convening a CSE/CPSE meet-
school district acts in a timely manner following the receipt of a request for
                                                                                     ing should be used with discretion and only when in best interests of
a referral.
                                                                                     student and parent.
    DEPARTMENT RESPONSE:
    No revisions are necessary to address the first comment since the
proposed regulations would require the school district that receives a
request for a referral to, within 10 school days, either request parent
consent to initiate the evaluation; or provide the parent with a copy of such
request for referral, inform the parent of his or her right to refer the student
for an initial evaluation for special education programs and/or services and                   Public Service Commission
provide the parent the opportunity to meet to discuss the request for
referral. As written, the proposed amendment means that the 10 school
days commences with receipt of the request for a referral by the building                                 NOTICE OF ADOPTION
administrator, other employee receiving the request for referral or the
committee chairperson, and therefore no further revisions to address this            Waiver of 16 NYCRR Sections 894.1 through 894.4(b)(2)
comment is necessary.                                                                I.D. No. PSC-52-07-00002-A
    If a request for a referral results in a referral for an initial evaluation by   Filing date: May 8, 2008
the parent or the school district, current regulations require the school            Effective date: May 8, 2008
district to provide prior written notice of the proposed evaluation in the
parent’s native language or other mode of communication unless it is                 PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
clearly not feasible to do so.                                                       cedure Act, NOTICE is hereby given of the following action:
    COMMENT:                                                                         Action taken: The commission, on April 23, 2008, adopted an order
    Clarify if a request for referral can be withdrawn and if this would be          approving the Town of Milan’s request pertaining to the franchise renewal
done in accordance with procedures for withdrawing a referral in                     process between the Town of Milan and Cablevision of Wappingers Falls,
§ 200.4(a)(7). Clarify what happens if parent fails or refuses consent for an        Inc.
initial evaluation, or refuses to attend a request for referral meeting, and if      Statutory authority: Public Service Law, section 222
due process provisions in § 200.4(a)(8) would apply. Clarify applicability           Subject: Waiver of 16 NYCRR sections 894.1 through 894.4(b)(2).

16
NYS Register/May 28, 2008                                                                                                Rule Making Activities

Purpose: To allow the Town of Milan (Dutchess County) to expedite the            Statutory authority: Public Service Law, section 66(12)
franchising process with Cablevision of Wappingers Falls, Inc.                   Subject: Annual reconciliation of gas expenses and gas cost recoveries.
Substance of final rule: The Commission granted the Town of Milan,               Purpose: To deny the request of Central Hudson for rehearing of the
Dutchess County a waiver of 16 NYCRR, Parts 894.1 through 894.4(b)(2)            commission’s order and clarified certain statements that the order as re-
to expedite the franchising process with Cablevision of Wappingers Falls,        quested by KeySpan regarding the annual reconciliation of gas cost and
Inc.                                                                             expenses.
Final rule compared with proposed rule: No changes.                              Substance of final rule: The Commission denied the petition of Central
Text of rule may be obtained from: Central Operations, Public Service            Hudson Gas & Electric Corporation for reconsideration and rehearing of
Commission, Bldg. 3, 14th Fl., Empire State Plaza, Albany, NY 12223-             the Commission’s December 21, 2007 Order regarding the annual recon-
1350, by fax to (518) 474-9842, by calling (518) 474-2500. An IRS                ciliation of gas cost and expenses and approved the petition of The Brook-
employer ID no. or social security no. is required from firms or persons to      lyn Union Gas Company d/b/a KeySpan Energy Delivery New York and
be billed 25 cents per page. Please use tracking number found on last line       KeySpan Gas East Corporation d/b/a KeySpan Energy Delivery Long
of notice in requests.                                                           Island to clarify certain statements in that Order, subject to the terms and
Assessment of Public Comment                                                     conditions set forth in the order.
An assessment of public comment is not submitted with this notice because        Final rule compared with proposed rule: No changes.
the rule is within the definition contained in section 102(2)(a)(ii) of the      Text of rule may be obtained from: Central Operations, Public Service
State Administrative Procedure Act.                                              Commission, Bldg. 3, 14th Fl., Empire State Plaza, Albany, NY 12223-
(07-V-1391SA1)                                                                   1350, by fax to (518) 474-9842, by calling (518) 474-2500. An IRS
                                                                                 employer ID no. or social security no. is required from firms or persons to
                     NOTICE OF ADOPTION                                          be billed 25 cents per page. Please use tracking number found on last line
                                                                                 of notice in requests.
Transfer of Property between National Fuel Gas Distribution Cor-
                                                                                 Assessment of Public Comment
poration and International Association of Heat and Frost Insula-
                                                                                 An assessment of public comment is not submitted with this notice because
tors and Asbestos Workers, Local No. 4                                           the rule is within the definition contained in section 102(2)(a)(ii) of the
I.D. No. PSC-05-08-00027-A                                                       State Administrative Procedure Act.
Filing date: May 13, 2008                                                        (07-G-1101SA2)
Effective date: May 13, 2008
                                                                                                  PROPOSED RULE MAKING
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
cedure Act, NOTICE is hereby given of the following action:                                      NO HEARING(S) SCHEDULED
Action taken: The commission, on April 23, 2008, approved the petition           Implementation of Outage Recommendations
of National Fuel Gas Distribution Corporation to sell a building and
property located at 2484 Seneca St., West Seneca, NY to International            I.D. No. PSC-22-08-00002-P
Association of Heat and Frost Insulators and Asbestos Workers, Local No.
4.                                                                               PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
                                                                                 cedure Act, NOTICE is hereby given of the following proposed rule:
Statutory authority: Public Service Law, section 70
                                                                                 Proposed action: The Public Service Commission is considering whether
Subject: Transfer of property.
                                                                                 to grant or deny, in whole or in part, a City of New York petition for
Purpose: To approve a filing to sell a building and property to Interna-         rehearing, a Consumer Protection Board petition for rehearing and recon-
tional Association of Heat and Frost Insulators and Asbestos Workers.            sideration, and a Consolidated Edison Company of New York, Inc. (Con
Substance of final rule: The Commission adopted an order approving the           Edison) petition for clarification of an order implementing recommenda-
petition of National Fuel Gas Distribution Corporation to sell a building        tions in Case 06-E-0894, related to the July 2006 equipment failures and
and property located at 2484 Seneca Street, West Seneca, NY to Interna-          power outages experienced in Con Edison’s Long Island City network and
tional Association of Heat and Frost Insulators and Asbestos Workers,            Westchester County service areas.
Local No. 4, subject to the terms and conditions set forth in the order.         Statutory authority: Public Service Law, sections 4(1), 5(1), 22, 66(1),
Final rule compared with proposed rule: No changes.                              (2) and (4)
Text of rule may be obtained from: Central Operations, Public Service            Subject: Implementation of outage recommendations.
Commission, Bldg. 3, 14th Fl., Empire State Plaza, Albany, NY 12223-
                                                                                 Purpose: To consider petitions for rehearing, reconsideration and clarifi-
1350, by fax to (518) 474-9842, by calling (518) 474-2500. An IRS
                                                                                 cation of outage recommendation implementation.
employer ID no. or social security no. is required from firms or persons to
be billed 25 cents per page. Please use tracking number found on last line       Substance of proposed rule: The Public Service Commission is consid-
of notice in requests.                                                           ering whether to grant or deny, in whole or in part, a City of New York
Assessment of Public Comment                                                     Petition for Rehearing, a Consumer Protection Board Petition for Rehear-
                                                                                 ing and Reconsideration, and a Consolidated Edison Company of New
An assessment of public comment is not submitted with this notice because
                                                                                 York, Inc. (Con Edison) Petition for Clarification of an order Implement-
the rule is within the definition contained in section 102(2)(a)(ii) of the
                                                                                 ing Recommendations in Case 06-E-0894, related to the July 2006 equip-
State Administrative Procedure Act.
                                                                                 ment failures and power outages experienced in Con Edison’s Long Island
(07-G-1491SA1)                                                                   City network and Westchester County service areas.
                     NOTICE OF ADOPTION                                          Text of proposed rule and any required statements and analyses may
                                                                                 be obtained by filing a Document Request Form (F-96) located on our
Annual Reconciliation of Gas Expenses and Gas Cost Recoveries                    website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:
by Central Hudson Gas & Electric Corporation and KeySpan                         Central Operations, Public Service Commission, Bldg. 3, Empire State
Energy Delivery Companies                                                        Plaza, Albany, NY 12223-1350, (518) 474-2500
                                                                                 Data, views or arguments may be submitted to: Jaclyn A. Brilling,
I.D. No. PSC-07-08-00013-A                                                       Secretary, Public Service Commission, Bldg. 3, Empire State Plaza, Al-
Filing date: May 12, 2008                                                        bany, NY 12223-1350, (518) 474-6530
Effective date: May 12, 2008
                                                                                 Public comment will be received until: 45 days after publication of this
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                      notice.
cedure Act, NOTICE is hereby given of the following action:                      Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural
Action taken: The commission, on April 23, 2008, denied the request of           Area Flexibility Analysis and Job Impact Statement
Central Hudson Gas & Electric Corporation (Central Hudson) for a rehear-         Statements and analyses are not submitted with this notice because the
ing of the commission’s Dec. 21, 2007 order regarding the annual reconcil-       proposed rule is within the definition contained in section 102(2)(a)(ii) of
iation of gas cost and expenses and clarified certain statements in that order   the State Administrative Procedure Act.
as requested by KeySpan Energy Delivery Companies (KeySpan).                     (06-E-0894SA7)

                                                                                                                                                         17
Rule Making Activities                                                                                          NYS Register/May 28, 2008

                 PROPOSED RULE MAKING                                          three, the need for program changes, if any, and new programs that could
                                                                               be developed. Ultimately, Con Edison was to prepare a report to be filed
                NO HEARING(S) SCHEDULED                                        with the Commission by April 15, 2008.
Interconnection of the Networks for Local Exchange Service and                     Con Edison filed a gas energy efficiency collaborative report on April
                                                                               15, 2008. The Commission is considering whether to approve, modify, or
Exchange Access                                                                reject, in whole or in part, the filing made by Con Edison.
I.D. No. PSC-22-08-00003-P                                                     Text of proposed rule and any required statements and analyses may
                                                                               be obtained by filing a Document Request Form (F-96) located on our
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
                                                                               website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:
cedure Act, NOTICE is hereby given of the following proposed rule:
                                                                               Central Operations, Public Service Commission, Bldg. 3, Empire State
Proposed action: The Public Service Commission is considering whether          Plaza, Albany, NY 12223-1350, (518) 474-2500
to approve or reject, in whole or in part, a proposal filed by Verizon New     Data, views or arguments may be submitted to: Jaclyn A. Brilling,
York Inc. and Finger Lakes Technologies Group, Inc. for approval of an         Secretary, Public Service Commission, Bldg. 3, Empire State Plaza, Al-
interconnection agreement executed on March 25, 2008.                          bany, NY 12223-1350, (518) 474-6530
Statutory authority: Public Service Law, section 94(2)                         Public comment will be received until: 45 days after publication of this
Subject: Interconnection of the networks for local exchange service and        notice.
exchange access.                                                               Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural
Purpose: To review the terms and conditions of the negotiated agree-           Area Flexibility Analysis and Job Impact Statement
ment.                                                                          Statements and analyses are not submitted with this notice because the
Substance of proposed rule: Verizon New York Inc. and Finger Lakes             proposed rule is within the definition contained in section 102(2)(a)(ii) of
Technologies Group, Inc. have reached a negotiated agreement whereby           the State Administrative Procedure Act.
Verizon New York Inc. and Finger Lakes Technologies Group, Inc. will           (06-G-1332SA2)
interconnect their networks at mutually agreed upon points of interconnec-
tion to provide Telephone Exchange Services and Exchange Access to                              PROPOSED RULE MAKING
their respective customers. The Agreement establishes obligations, terms
and conditions under which the parties will interconnect their networks
                                                                                               NO HEARING(S) SCHEDULED
lasting until November 19, 2008, or as extended.                               Interconnection of the Networks for Local Exchange Service and
Text of proposed rule and any required statements and analyses may             Exchange Access
be obtained by filing a Document Request Form (F-96) located on our
website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:         I.D. No. PSC-22-08-00005-P
Central Operations, Public Service Commission, Bldg. 3, Empire State           PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
Plaza, Albany, NY 12223-1350, (518) 474-2500                                   cedure Act, NOTICE is hereby given of the following proposed rule:
Data, views or arguments may be submitted to: Jaclyn A. Brilling,              Proposed action: The Public Service Commission is considering whether
Secretary, Public Service Commission, Bldg. 3, Empire State Plaza, Al-         to approve or reject, in whole or in part, a proposal filed by Verizon New
bany, NY 12223-1350, (518) 474-6530                                            York Inc. and TeleQuality Communications Inc. for approval of an inter-
Public comment will be received until: 45 days after publication of this       connection agreement executed on March 14, 2008.
notice.                                                                        Statutory authority: Public Service Law, section 94(2)
Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural            Subject: Interconnection of the networks for local exchange service and
Area Flexibility Analysis and Job Impact Statement                             exchange access.
Statements and analyses are not submitted with this notice because the         Purpose: To review the terms and conditions of the negotiated agreement
proposed rule is within the definition contained in section 102(2)(a)(ii) of   between Verizon New York Inc. and TeleQuality Communications Inc.
the State Administrative Procedure Act.                                        Substance of proposed rule: Verizon New York Inc. and TeleQuality
(08-C-0447SA1)                                                                 Communications Inc. have reached a negotiated agreement whereby Ver-
                                                                               izon New York Inc. and TeleQuality Communications Inc. will intercon-
                 PROPOSED RULE MAKING                                          nect their networks at mutually agreed upon points of interconnection to
                NO HEARING(S) SCHEDULED                                        provide Telephone Exchange Services and Exchange Access to their re-
                                                                               spective customers. The Agreement establishes obligations, terms and
Gas Energy Efficiency Collaborative                                            conditions under which the parties will interconnect their networks lasting
I.D. No. PSC-22-08-00004-P                                                     until March 13, 2010, or as extended.
                                                                               Text of proposed rule and any required statements and analyses may
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                    be obtained by filing a Document Request Form (F-96) located on our
cedure Act, NOTICE is hereby given of the following proposed rule:             website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:
Proposed action: On Sept. 25, 2007, the Public Service Commission              Central Operations, Public Service Commission, Bldg. 3, Empire State
issued an order in Case 06-G-1332 which established new delivery rates         Plaza, Albany, NY 12223-1350, (518) 474-2500
for Consolidated Edison Company of New York, Inc. (Con Edison). In that        Data, views or arguments may be submitted to: Jaclyn A. Brilling,
order, Con Edison was charged with convening a gas efficiency collabora-       Secretary, Public Service Commission, Bldg. 3, Empire State Plaza, Al-
tive to develop and recommend efficiency programs for rate years two and       bany, NY 12223-1350, (518) 474-6530
three. Con Edison filed a report on April 15, 2008 and the Public Service      Public comment will be received until: 45 days after publication of this
Commission is considering whether to approve, modify, or reject, in whole      notice.
or in part, the filing.                                                        Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural
Statutory authority: Public Service Law, section 66                            Area Flexibility Analysis and Job Impact Statement
Subject: Gas energy efficiency collaborative.                                  Statements and analyses are not submitted with this notice because the
Purpose: To consider Con Edison’s gas efficiency collaborative filing          proposed rule is within the definition contained in section 102(2)(a)(ii) of
with the commission.                                                           the State Administrative Procedure Act.
Substance of proposed rule: On September 25, 2007, the Public Service          (08-C-0481SA1)
Commission (Commission) issued an Order in Case 06-G-1332 which
established new delivery rates for Consolidated Edison Company of New                           PROPOSED RULE MAKING
York, Inc. (Con Edison). In that Order, Con Edison was charged with                            NO HEARING(S) SCHEDULED
convening as a gas efficiency collaborative, on or about September 1,
2007, to develop and recommended efficiency programs for rate years two        Water Rates and Charges
and three, including issues such as program design, funding, performance       I.D. No. PSC-22-08-00006-P
incentives, and program administration. Con Edison was also allowed to
contract with an independent consultant to perform a study to make recom-      PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
mendations concerning the appropriate level of funding for years two and       cedure Act, NOTICE is hereby given of the following proposed rule:

18
NYS Register/May 28, 2008                                                                                              Rule Making Activities

Proposed action: The Public Service Commission is considering whether          Text of proposed rule and any required statements and analyses may
to approve or reject, in whole or in part, a filed request by Arbor Hills      be obtained by filing a Document Request Form (F-96) located on our
Waterworks, Inc. to modify the terms of its emergency escrow account to        website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:
recover revenue losses due to reduced water sales caused by a ban on the       Central Operations, Public Service Commission, Bldg. 3, Empire State
use of water for lawn sprinkling.                                              Plaza, Albany, NY 12223-1350, (518) 474-2500
Statutory authority: Public Service Law, sections 4(1), 5(1)(f) and 89-        Data, views or arguments may be submitted to: Jaclyn A. Brilling,
c(1) and (10)                                                                  Secretary, Public Service Commission, Bldg. 3, Empire State Plaza, Al-
Subject: Water rates and charges.                                              bany, NY 12223-1350, (518) 474-6530
Purpose: To allow recovery of revenue losses due to reduced sales.             Public comment will be received until: 45 days after publication of this
Substance of proposed rule: On April 22, 2008, Arbor Hills Water-              notice.
works, Inc. (Arbor Hills or the company) filed a petition for approval to      Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural
modify the terms of its emergency escrow account to enable it to recover       Area Flexibility Analysis and Job Impact Statement
revenue losses caused by reduced sales. The company has been having            Statements and analyses are not submitted with this notice because the
problems meeting the demands caused by the customers’ automatic lawn           proposed rule is within the definition contained in section 102(2)(a)(ii) of
sprinkler systems. In order to be able to provide its customers adequate       the State Administrative Procedure Act.
service for domestic purposes, the company imposed a ban on the use of         (08-W-0464SA1)
water for lawn watering. To date the company’s attempts to obtain addi-
tional supply have failed and it is expected that the lawn watering ban will                    PROPOSED RULE MAKING
have to continue. The company states the ban caused a significant loss in                      NO HEARING(S) SCHEDULED
Arbor Hills’ 2007 revenue (about $5,800 net of changes in production
costs) which the company cannot absorb and it is expected that the loss        Water Rates and Charges
revenue from the lawn watering ban will be even greater in 2008. The use       I.D. No. PSC-22-08-00008-P
of the emergency escrow account for recovering lost revenue caused by the
lawn watering ban would continue until the company’s next filing at which      PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
time such lost revenue would be rolled into base rates. The company            cedure Act, NOTICE is hereby given of the following proposed rule:
provides metered water service to 67 customers in the Arbor Hills develop-     Proposed action: The Public Service Commission is considering whether
ment in Westchester County. The Commission may approve or reject, in           to approve or reject, in whole or in part, or modify, a request filed by
whole or in part, or modify the company’s request.                             Boniville Water Company, Inc. to increase rates, implement a new rate
Text of proposed rule and any required statements and analyses may             design effective Aug. 1, 2008, and thereafter have automatic annual rate
be obtained by filing a Document Request Form (F-96) located on our            increases of five percent or the CPI whichever is greater.
website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:         Statutory authority: Public Service Law, sections 4(1), 5(1)(f), 89-c(1)
Central Operations, Public Service Commission, Bldg. 3, Empire State           and (10)
Plaza, Albany, NY 12223-1350, (518) 474-2500                                   Subject: Water rates and charges.
Data, views or arguments may be submitted to: Jaclyn A. Brilling,              Purpose: To increase rates, implement a new rate design, and going
Secretary, Public Service Commission, Bldg. 3, Empire State Plaza, Al-         forward approve automatic rate increases for Boniville Water Company,
bany, NY 12223-1350, (518) 474-6530                                            Inc.
Public comment will be received until: 45 days after publication of this       Substance of proposed rule: On May 8, 2008, Boniville Water Com-
notice.                                                                        pany, Inc. (Boniville or the company) electronically filed leaf 12 Revision
Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural            4 to tariff schedule P.S.C. No. 4 — Water to become effective August 1,
Area Flexibility Analysis and Job Impact Statement                             2008. The company proposes to increase its annual operating revenues by
Statements and analyses are not submitted with this notice because the         $18,248 or approximately 29.70% over the revenue allowed in its last
proposed rule is within the definition contained in section 102(2)(a)(ii) of   increase, effective August 1, 2005. The company requests that the entire
the State Administrative Procedure Act.                                        increase be recovered through the minimum charge (the usage rate will
(08-W-0445SA1)                                                                 remain unchanged). Boniville also requests approval of automatic annual
                                                                               rate increases, beginning January 1, 2010, of 5% or the Consumer Price
                 PROPOSED RULE MAKING                                          Index of Greater New York, which ever is greater. Boniville’s tariff is
                NO HEARING(S) SCHEDULED                                        available on the Commission’s Home Page on the World Wide Web
                                                                               (www.dps.state.ny.us located under Commission Documents). The com-
Rates and Charges                                                              pany provides metered water service to approximately 99 customers in the
                                                                               Boniville Development, Mahopac Falls, Putnam County. The Commission
I.D. No. PSC-22-08-00007-P                                                     may approve or reject, in whole or in part, or modify the company’s
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                    request.
cedure Act, NOTICE is hereby given of the following proposed rule:             Text of proposed rule and any required statements and analyses may
Proposed action: The commission is considering the petition of United          be obtained by filing a Document Request Form (F-96) located on our
Water Westchester Inc. to increase an ongoing surcharge and implement          website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:
an additional one year surcharge to recover increased purchased water          Central Operations, Public Service Commission, Bldg. 3, Empire State
costs from both Westchester Joint Waterworks and Aquarion Water Com-           Plaza, Albany, NY 12223-1350, (518) 474-2500
pany of Connecticut.                                                           Data, views or arguments may be submitted to: Jaclyn A. Brilling,
Statutory authority: Public Service Law, section 89-c(10)                      Secretary, Public Service Commission, Bldg. 3, Empire State Plaza, Al-
Subject: Rates and charges.                                                    bany, NY 12223-1350, (518) 474-6530
Purpose: To allow United Water Westchester Inc. to surcharge customers         Public comment will be received until: 45 days after publication of this
for increased water costs and defer certain water costs until recovered in     notice.
the surcharges.                                                                Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural
Substance of proposed rule: The Commission is considering whether to           Area Flexibility Analysis and Job Impact Statement
approve, reject of modify, in whole or in part, the petition of United Water   Statements and analyses are not submitted with this notice because the
Westchester Inc. to increase an ongoing surcharge for water costs and to       proposed rule is within the definition contained in section 102(2)(a)(ii) of
implement a one year surcharge to recover deferred water costs associated      the State Administrative Procedure Act.
with unrecovered costs. In accordance with previous rate cases and rate        (08-W-0522SA1)
settlements, United Water Westchester may defer and surcharge increased
water costs it experiences from both Westchester Joint Waterworks                               PROPOSED RULE MAKING
(WJW) and Aquarion Water Company of Connecticut (Aquarion). The                                NO HEARING(S) SCHEDULED
increases proposed for the ongoing costs are 1.66% for WJW and 9.21%
for Aquarion. The one year surcharge would be 2.22% for WJW and                Water Rates and Charges
5.17% for Aquarion.                                                            I.D. No. PSC-22-08-00009-P

                                                                                                                                                       19
Rule Making Activities                                                                                            NYS Register/May 28, 2008

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                      increase, effective August 1, 2005. The company requests that the entire
cedure Act, NOTICE is hereby given of the following proposed rule:               increase, as well as an estimated net revenue loss of approximately
Proposed action: The Public Service Commission is considering whether            $12,000, be recovered through an increase in the service charge (the usage
to approve or reject, in whole or in part, or modify, a request filed by         rate will remain unchanged). In addition, since the expected revenue loss
Knolls Water Co., Inc. to increase rates and the surcharge for major             caused by a water sprinkling ban cannot accurately be estimated, the
renovations, and thereafter get automatic annual rate increases, of five         company also requests approval of a revenue reconciliation mechanism.
percent or the Consumer Price Index of Greater New York whichever is             Finally, Arbor Hills requests approval of automatic annual rate increases,
greater.                                                                         beginning January 1, 2010, of the greater of 5% or the Consumer Price
Statutory authority: Public Service Law, sections 4(1), 5(1)(f), 89-c(1)         Index of Greater New York. Arbor Hills’ tariff is available on the Commis-
and (10)                                                                         sion’s Home Page on the World Wide Web (www.dps.state.ny.us located
Subject: Water rates and charges.                                                under Commission Documents). The company provides metered water
                                                                                 service to approximately 67 customers in the Arbor Hills development,
Purpose: To increase rates and the surcharge for major renovations and
                                                                                 Town of Lewisboro, Westchester County. The Commission may approve
going forward approve automatic rate increases for Knolls Water Co., Inc.
                                                                                 or reject, in whole or in part, or modify the company’s request.
Substance of proposed rule: On May 8, 2008, Knolls Water Co., Inc.
(Knolls or the company) electronically filed Leaf 12 Revision 4 and              Text of proposed rule and any required statements and analyses may
Escrow Account for Major Renovations Statement No. 3 to tariff schedule          be obtained by filing a Document Request Form (F-96) located on our
P.S.C. No. 3 — Water to become effective August 1, 2008. The company             website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:
proposes to increase its annual operating revenues by $17,874 or approxi-        Central Operations, Public Service Commission, Bldg. 3, Empire State
mately 30.42% over the revenue allowed when in its last increase, became         Plaza, Albany, NY 12223-1350, (518) 474-2500
effective August 1, 2005. The Orange County Department of Health is              Data, views or arguments may be submitted to: Jaclyn A. Brilling,
requiring the company to install an additional well and replace its existing     Secretary, Public Service Commission, Bldg. 3, Empire State Plaza, Al-
storage tank. The company requests to be allowed to modify its existing          bany, NY 12223-1350, (518) 474-6530
escrow account for major renovations to increase the quarterly surcharge         Public comment will be received until: 45 days after publication of this
from $25 to $100 per customer so that it can complete the required               notice.
improvements in a reasonable amount of time. Knolls also requests ap-            Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural
proval of automatic annual rate increases, beginning January 1, 2010, of         Area Flexibility Analysis and Job Impact Statement
5% or the Consumer Price Index of Greater New York, which ever is                Statements and analyses are not submitted with this notice because the
greater. Knolls’ tariff is available on the Commission’s Home Page on the        proposed rule is within the definition contained in section 102(2)(a)(ii) of
World Wide Web (www.dps.state.ny.us located under Commission Docu-               the State Administrative Procedure Act.
ments). The company provides flat rate water service to approximately 79         (08-W-0527SA1)
customers in an area known as Forest Knolls on Greenwood Lake in the
Town of Warwick, Orange County. The Commission may approve or
reject, in whole or in part, or modify the company’s request.
Text of proposed rule and any required statements and analyses may
be obtained by filing a Document Request Form (F-96) located on our
website http://www.dps.state.ny.us/f96dir.htm. For questions, contact:
Central Operations, Public Service Commission, Bldg. 3, Empire State
                                                                                        State University of New York
Plaza, Albany, NY 12223-1350, (518) 474-2500
Data, views or arguments may be submitted to: Jaclyn A. Brilling,
Secretary, Public Service Commission, Bldg. 3, Empire State Plaza, Al-                            PROPOSED RULE MAKING
bany, NY 12223-1350, (518) 474-6530
                                                                                                 NO HEARING(S) SCHEDULED
Public comment will be received until: 45 days after publication of this
notice.                                                                          Proposed Amendment to Policies of the Board of Trustees Relating
Regulatory Impact Statement, Regulatory Flexibility Analysis, Rural              to the Student Assembly President Serving as Trustee
Area Flexibility Analysis and Job Impact Statement
Statements and analyses are not submitted with this notice because the           I.D. No. SUN-22-08-00011-P
proposed rule is within the definition contained in section 102(2)(a)(ii) of     PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-
the State Administrative Procedure Act.                                          cedure Act, NOTICE is hereby given of the following proposed rule:
(08-W-0523SA1)
                                                                                 Proposed action: This is a consensus rule making to amend section 341.2
                                                                                 of Title 8 NYCRR.
                 PROPOSED RULE MAKING
                                                                                 Statutory authority: Education Law, section 355(2)(b)
                NO HEARING(S) SCHEDULED                                          Subject: Proposed amendment to policies of the Board of Trustees relat-
Water Rates and Charges                                                          ing to the student assembly president serving as a trustee.
I.D. No. PSC-22-08-00010-P                                                       Purpose: To conform the policies of the Board of Trustees on seating the
                                                                                 student assembly president as a trustee with the Education Law.
PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-                      Text of proposed rule: TITLE A- ESTABLISHMENT AND PURPOSE
cedure Act, NOTICE is hereby given of the following proposed rule:                   § 341.2 Purpose.
Proposed action: The Public Service Commission is considering whether                The Student Assembly shall be the official organization by which State
to approve or reject, in whole or in part, or modify, a request filed by Arbor   University students participate in university-wide governance. The student
Hills Waterworks, Inc. to increase rates, implement a new rate design, and       assembly shall provide the following:
implement a revenue reconciliation mechanism, effective Aug. 1, 2008                 (a) a forum for consultation and the exchange of information between
and have automatic annual rate increases of the greater of five percent or       State University students, the chancellor, and the State University of New
the CPI whichever is greater, beginning Jan. 1, 2010.                            York Board of Trustees on matters of a university-wide nature which affect
Statutory authority: Public Service Law, sections 4(1), 5(1)(f), 89-c(1)         student concerns; and
and (10)                                                                             [(b) a procedure for electing the student member of the State University
Subject: Water rates and charges.                                                of New York Board of Trustees; and]
Purpose: To increase rates, implement a new rate design and going for-               [(c)] (b) a communications network for campus student government
ward approve automatic rate increases for Arbor Hills Waterworks, Inc.           leaders.
Substance of proposed rule: On May 7, 2008, Arbor Hills Waterworks,                  The student assembly shall exercise such other responsibilities as the
Inc. (Arbor Hills or the company) electronically filed Leaf 12 Revision 4 to     chancellor of the State University of New York Board of Trustees refer to
tariff schedule P.S.C. No. 3 — Water to become effective August 1, 2008.         it.
The company proposes to increase its annual operating revenues by                Text of proposed rule and any required statements and analyses may
$18,371 or approximately 20.7% over the revenue allowed in its last              be obtained from: Joseph Storch, Assistant Counsel, State University of

20
NYS Register/May 28, 2008                                                                                             Rule Making Activities

New York, System Administration, State University Plaza, S321, Albany,            Mr. Cairo by mail, by e-mail at Comp_Plan_Comments@srbc.net, and by
NY 12246, (518) 443-5400, e-mail: joseph.storch@suny.edu                          fax at (717) 238-2436.
Data, views or arguments may be submitted to: Same as above.                          AUTHORITY: P.L. 91-575, 84 Stat. 1509 et seq., 18 CFR Parts 806,
Public comment will be received until: 45 days after publication of this          807, and 808.
notice.                                                                             Dated: May 9, 2008
Consensus Rule Making Determination                                                 Thomas W. Beauduy
The proposed rule, which will amend provisions of the Policies of the               Deputy Director
Board of Trustees of State University of New York to conform the seating
of the Student Assembly President as a State University of New York
trustee to the requirements of the State Education Law, is being proposed
as a consensus rulemaking. State University of New York has determined
that no person is likely to object to the rule as written since it merely makes
technical corrections to Part 341.2 [b] of SUNY’s regulations, by remov-
ing the requirement that the Student Assembly develop a procedure for
electing the student member of the State University of New York Board of
Trustees which will conform to the State Education Law Section 353,
which declares that the President of the Student Assembly will be a trustee.
Job Impact Statement
No job impact statement is submitted with this notice because the proposed
rule does not impose any adverse economic impact on existing jobs,
employment opportunities, or self-employment. This rule makes a techni-
cal change to the regulation to conform the seating of the Student Assem-
bly President as a State University of New York trustee to the requirements
of the State Education Law and will not have an impact on the number of
jobs or employment.




           Susquehanna River Basin
                 Commission
              Notice of Public Comment and Public Hearings
    AGENCY: Susquehanna River Basin Commission
    ACTION: Notice of Public Comment and Public Hearings
SUMMARY: The Susquehanna River Basin Commission (SRBC) has
released its draft revised Comprehensive Plan for a 90-day public review
and comment period. To facilitate public comment, three public hearings
will be held on the draft Plan. Details concerning the subject matter of the
public hearings are contained in the Supplementary Information section of
this notice.
    DATES: Public Hearings - 1) July 8, 2008 at 2:00 p.m.; 2) July 9, 2008
at 2:00 p.m.; 3) July 10, 2008 at 10:00 a.m.; Comment Period – May 19,
2008 to August 18, 2008.
    ADDRESSES: 1) July 8 - Treadway Inn and Suites, 1100 State
Route17C, Owego, N.Y. 13827; 2) July 9 - Days Inn and Conference
Center, 50 Sheraton Drive, Danville, Pa. 17821; 3) July 10 - Best Western
Eden Resort, 222 Eden Road, Lancaster, Pa. 17603.
    FOR FURTHER INFORMATION CONTACT: The draft Comprehen-
sive Plan can be obtained from SRBC’s web site at http://www.srbc.net/
programs/planning/compplanfiles.asp or by calling Deborah Dickey at
(717) 238-0422, ext.301.
    SUPPLEMENTARY INFORMATION: As noted in the summary, the
purpose of the 90-day comment period is to receive comments on a
proposed revision of the entire SRBC Comprehensive Plan and the hear-
ings are being held in conjunction with the 90-day public comment period.
The Comprehensive Plan provides an overarching framework for SRBC to
manage and develop the basin’s water resources and serves as a guide for
all SRBC programs and activities, as required by the Susquehanna River
Basin Compact, U.S. Pub. L. 91-575. It is further intended as a useful
resource for SRBC’s member jurisdictions, water resource managers, pri-
vate sector interests and others in the basin. The Comprehensive Plan was
last revised in 1987.
    Opportunity to Appear and Comment:
    Interested parties may appear at the above hearings to offer written or
oral comments to the Commission. The chair of the Commission reserves
the right to limit oral statements in the interest of time and to otherwise
control the course of the hearings. Persons planning to comment at the
public hearings should contact Richard A. Cairo, General Counsel, SRBC,
1721 N. Front Street, Harrisburg, Pa. 17102-2391; (717) 238-0423, Ext.
306 by July 1, 2008. Written comments will also be accepted during the
90-day comment period, which ends August 18, 2008, and may be sent to


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