HES-19-15-00001-E Registration of Manufacturers, Distributors, Wholesalers, Various Retailers of Sparkling Devices

5/13/15 N.Y. St. Reg. HES-19-15-00001-E

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 19

May 13, 2015

RULE MAKING ACTIVITIES

DIVISION OF HOMELAND SECURITY AND EMERGENCY SERVICES

EMERGENCY RULE MAKING

 

I.D No. HES-19-15-00001-E

Filing No. 328

Filing Date. Apr. 22, 2015

Effective Date. Apr. 22, 2015

Registration of Manufacturers, Distributors, Wholesalers, Various Retailers of Sparkling Devices

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:

Action taken:

Addition of Part 225 to Title 9 NYCRR.

Statutory authority:

Executive Law, sections 156(20) and 156-h; L. 2014, ch. 477

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

Executive Law section 156-h requires that the Office of Fire Prevention and Control promulgate rules regarding registration of manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers of sparkling devices. Registration is required prior to the legal sale of such sparkling devices. This rule includes the registration processes, fees and reporting requirements. Accordingly, this rule must be adopted on an emergency basis in order to ensure that such procedures are in effect to assure the public’s safety and general welfare.

Subject:

Registration of manufacturers, distributors, wholesalers, various retailers of sparkling devices.

Purpose:

Establish the registration process, fees and reporting requirements related to sparkling devices.

Substance of emergency rule:

PART 225

SPARKLING DEVICES

Section 225.1 Definitions

Establishes definitions of sparkling devices according to new statutory language. Establishes that “Sparkling Devices” are consumer fireworks for the purpose of the Uniform Fire Prevention and Building Code and National Fire Protection Association standard 1124 (2006).

Section 225.2 Registration

Requires every manufacturer, distributor, wholesaler, specialty retailer, or permanent retailer of sparkling devices to annually register with the Office of Fire Prevention and Control. Requires temporary (seasonal) retailers to register with the Office of Fire Prevention and Control each selling season. Establishes the registration process and related documentation required as part of the registration package.

Section 225.3 Fees

Establishes application fees; the revenue of which goes to the Office of Fire Prevention and Control to be used for firefighter safety and training programs as well as for the registration process, consistent with Executive Law § 156-h. A manufacturer, distributor, wholesaler must pay an annual registration fee of $5,000; a specialty retailer must pay an annual registration fee of $2,500; a permanent retailer must pay an annual registration fee of $200 for each location; and a temporary seasonal retailer must pay a registration fee of $250 per season for each location.

Section 225.4 Certification

The Office of Fire Prevention and Control is responsible to issue a certification valid for one year to manufacturers, distributors, wholesalers, specialty retailers, or permanent retailers. Certificates issued to temporary seasonal retailers will be valid for 30 day prior to through 30 day after the dates of the selling season specified in General Business Law § 392-j. Non-compliance with any of the requirements set forth may result in a revocation of the certificate of registration, as determined by the Office of Fire Prevention and Control. Revocation shall remain in effect until the manufacturer, distributor, wholesaler, specialty retailer, permanent retailer, or temporary seasonal retailer provides evidence of compliance acceptable to the Office of Fire Prevention and Control.

Section 225.5 Records and Reports

Manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers shall maintain, and make available to the Office of Fire Prevention and Control, records regarding the name and quantity of any sparkling devices produced in, imported to, exported from, or sold in New York. Establishes the Office of Fire Prevention and Control’s authority to inspect to assure compliance with the terms of registration/certification.

Section 225.6 Reporting of incidents

Requires manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers to report basic information on incidents of fires or explosions, including accidental discharge of sparkling devices, that occurs on premises to the Office of Fire Prevention and Control: within 24 hours if no injury or death; within 1 hour, or as soon as practicable if injury or death is involved. The Office of Fire Prevention and Control is responsible to share information with local code enforcement officials, as appropriate.

Section 225.7 General Requirements

Requires posting of documentation in each location of business, to include: copy of the Office of Fire Prevention and Control certification for such location; the list, as most recently published by the New York State Police, of counties and cities that have opted by local law to legalize the use of sparkling devices; copy of any Federal Permit(s) (if applicable); copy of the Insurance Certificate; and copy of a sparkling device safety pamphlet produced by the Office of Fire Prevention and Control.

This notice is intended

to serve only as a notice of emergency adoption. This agency intends to adopt this emergency rule as a permanent rule and will publish a notice of proposed rule making in the State Register at some future date. The emergency rule will expire July 20, 2015.

Text of rule and any required statements and analyses may be obtained from:

Elisha S. Tomko, Division of Homeland Security and Emergency Services, 1220 Washington Avenue, State Office Campus, Bldg 7A, Albany, [phone], email: [e-mail]

Regulatory Impact Statement

1. Statutory Authority

Section 156(20) of the Executive Law authorizes the Office of Fire Prevention and Control to register the manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers of sparkling devices who wish to do business in New York State. Section 156-h of the Executive Law requires that the Office of Fire Prevention and Control promulgate rules regarding registration of manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers of sparkling devices.

2. Legislative Objectives

The legislative objective behind section 156(20) and section 156-h are to assure that the proper processes are in place prior to the sale of sparkling devices. Registration with the Office of Fire Prevention and Control is required prior to the sale of such sparkling devices, pursuant to General Business Law 392-j.

3. Needs and Benefits

Section 156-h of the Executive Law requires that the Office of Fire Prevention and Control promulgate rules regarding registration of manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers of sparkling devices.

The regulation establishes the process for registration of manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers of sparkling devices, including registration, fees, certification and reporting requirements.

The benefits of the regulations include allowing the Office of Fire Prevention and Control to maintain a list of certified manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers of sparkling devices and sets forth registration requirements to assure public safety, including compliance with the Uniform Fire Prevention and Building Code and reporting of incidents.

4. Costs

The rule establishes application fees, consistent with section 156-h of the Executive Law. A manufacturer, distributor, or wholesaler must pay an annual registration fee of $5,000; Specialty retailer must pay an annual registration fee of $2,500 for each location; Permanent retailer must pay an annual registration fee of $200 for each location; and Temporary seasonal retailer must pay a registration fee of $250 per season to the Office of Fire Prevention and Control for each location.

The cost to the Office of Fire Prevention and Control for the implementation of the rule is approximately $850,000 per year for administration, inspection and investigative costs. Section 156-h requires that revenue generated from registration fee payments must be used for firefighter safety and training programs as well as for the registration process.

In developing its cost estimates associated with this new responsibility, the Office of Fire Prevention and Control consulted with state fire marshal offices in other states that have recently legalized sparkling devices and/or consumer fireworks in an effort to learn what their work load experiences have been. OFPC extrapolated the data and applied it to its specific costs (IE: personnel and equipment).

There would be no costs to local governments for the implementation of the rule.

5. Local Government Mandates

This rule making will not impose any program, service, duty or responsibility upon counties, cities, towns, villages, school districts, fire districts or other special districts. This rule regulates the manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers of sparkling devices.

6. Paperwork

The Office of Fire Prevention and Control will be required to develop and make available registration forms, certification forms and a sparkling device safety pamphlet. Manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers shall maintain, and make available to the Office of Fire Prevention and Control, records regarding the name and quantity of any sparkling devices produced in, imported to, exported from, or sold in this State. Retailers will be required to post documentation in each location of business, to include: copy of the Office of Fire Prevention and Control certification for such location; the list, as most recently published by the New York State Police, of counties and cities that have opted by local law to legalize the use of sparkling devices; copy of any Federal Permit(s) (if applicable); copy of the Insurance Certificate; and copy of a sparkling device safety pamphlet produced by the Office of Fire Prevention and Control.

7. Duplication

No rules or other legal requirements of either the state or federal government exist at the present time which duplicate, overlap, or conflict with the rule.

8. Alternatives

The Office of Fire Prevention and Control does not have statutory authority to consider any alternative other than to adopt a rule addressing these issues; no other significant alternatives were considered.

9. Federal Standards

Any person importing, manufacturing for commercial use, dealing in, transporting or causing to be transported, or otherwise receiving certain fireworks must obtain an ATF Federal explosives license or permit for the specific activity. Federal explosives licensees and permittees must comply with all applicable regulations under 27 CFR, Part 555. Any person manufacturing consumer fireworks for commercial use must obtain a Federal explosives manufacturers license. This rule does not exceed or conflict with such requirements.

10. Compliance Schedule

Manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers of sparkling devices can comply with the requirements of the rule once a city or county opts to legalize the sale and use of sparkling devices within its municipality.

Regulatory Flexibility Analysis

1. Effect of Rule

The rule does not affect local governments. The rule affects small businesses, including manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers of sparkling devices.

2. Compliance Requirements

This rule making will not impose any reporting, recordkeeping or other affirmative acts on local governments.

Small business manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers will be required to meet registration requirements and maintain, and make available to the Office of Fire Prevention and Control (OFPC), records regarding the name and quantity of any sparkling devices produced in, imported to, exported from, or sold in New York. Small business specialty retailers, permanent retailers and temporary seasonal retailers will be required to post documentation in each location of business, to include: copy of the Office of Fire Prevention and Control certification for such location; the list, as most recently published by the New York State Police, of counties and cities that have opted by local law to legalize the use of sparkling devices; copy of any Federal Permit(s) (if applicable); copy of the Insurance Certificate; and copy of a sparkling device safety pamphlet produced by the Office of Fire Prevention and Control.

Small business manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers also need to report to the Office of Fire Prevention and Control, any fire or explosion that results in injury or death within one hour of its occurrence or as soon as practicable.

3. Professional Services

Neither local governments or small business affected by this rule will require professional services in order to comply with the rule.

4. Compliance Costs

There would be no initial capital costs associated with compliance with the rule. The annual costs for continuing compliance are the required fees: a manufacturer, distributor, or wholesaler must pay an annual registration fee of $5,000; Specialty retailer must pay an annual registration fee of $2,500 for each location; Permanent retailer must pay an annual registration fee of $200 for each location; and Temporary seasonal retailer must pay a registration fee of $250 per season to the Office of Fire Prevention and Control for each location.

5. Economic and Technological Feasibility

The rule sets forth the registration and reporting requirements for small business manufacturers, distributers, wholesalers, and retailers of sparkling devices, both of which are economically and technologically feasible.

6. Minimizing Adverse Impact

The rule establishes the registration process for manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers of sparkling devices. The fees, contained in the rule, are created by statute and therefore, the rule does not impose any adverse economic impact and no alternatives were considered.

7. Small Business and Local Government Participation

Small business and local governments, through their respective associations, are invited to participate in the proposed rulemaking process, through the submission of comments and attendance and participation in various meetings held on topic.

8. For Rules That Either Establish or Modify a Violation or Penalties

The penalty for non-compliance with the requirements of the rule is revocation of registration. This revocation remains in effect until the manufacturer, distributor, wholesaler, specialty retailer, permanent retailer, or temporary seasonal retailer provides evidence of compliance. Revocation will only occur if and when an inspector identifies a violation of the requirements of this rule and the registrant is unable or refuses to comply with such. One purpose for the registration of manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers of sparkling devices is to assure public safety (i.e. compliance with the fire safety codes), and therefore, the rule does not set forth a specific cure period; the length of revocation period will be dependent on the actions or inaction of the registrant.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas

The rule would apply to counties and cities, outside of New York City, that opted to legalize the sale and use of sparkling devices, including those located in rural areas as that term is defined in section 102(10) of the State Administrative Procedure Act (“SAPA”).

2. Reporting, recordkeeping and other compliance requirements; and professional services:

This rule making will not impose any reporting, recordkeeping or other affirmative acts on local governments in rural areas.

In counties and cities, in rural areas, that opted to legalize the sale and use of sparkling devices, manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers will be required to meet registration requirements and maintain, and make available to the Office of Fire Prevention and Control (OFPC), records regarding the name and quantity of any sparkling devices produced in, imported to, exported from, or sold in New York. Specialty retailers, permanent retailers and temporary seasonal retailers will be required to post documentation in each location of business, to include: copy of the Office of Fire Prevention and Control certification for such location; the list, as most recently published by the New York State Police, of counties and cities that have opted by local law to legalize the use of sparkling devices; copy of any Federal Permit(s) (if applicable); copy of the Insurance Certificate; and copy of a sparkling device safety pamphlet produced by the Office of Fire Prevention and Control.

Manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers also need to report to the Office of Fire Prevention and Control, any fire or explosion that results in injury or death within one hour of its occurrence or as soon as practicable.

In rural areas, professional services are not required to comply with the rule.

3. Costs

In rural areas, there would be no initial capital costs associated with compliance with the rule. The annual costs for continuing compliance are the required fees: a manufacturer, distributor, or wholesaler must pay an annual registration fee of $5,000; Specialty retailer must pay an annual registration fee of $2,500 for each location; Permanent retailer must pay an annual registration fee of $200 for each location; and Temporary seasonal retailer must pay a registration fee of $250 per season to the Office of Fire Prevention and Control for each location.

4. Minimizing adverse impact

The rule establishes the registration process for manufacturers, distributors, wholesalers, specialty retailers, permanent retailers and temporary seasonal retailers of sparkling devices. The fees, contained in the rule, are created by statute and therefore, the rule does not impose any adverse economic impact and no alternatives were considered.

5. Rural area participation

Businesses and local governments, in rural areas, through their respective associations, will be invited to participate in the proposed rulemaking process, through the submission of comments and attendance and participation in various meetings held on topic.

Job Impact Statement

1. Nature of impact

The nature of the impact that the rule will have on jobs and employment opportunities is expected to be minimal based on the seasonal/limited selling season of June first and July fifth and December twenty-sixth through January second of each year.

2. Categories and numbers affected

The rule may result in part-time seasonal/temporary retail jobs in those counties and cities that have opted to legalize the sale and use of sparkling devices during the limited selling season of June first and July fifth and December twenty-sixth through January second of each year.

3. Regions of adverse impact

The minimal impact that the rule will have on jobs and employment opportunities will not result in a disproportionate impact on any region of the State.

4. Minimizing adverse impact

The rule would not have any adverse impact on existing jobs.

Assessment of Public Comment

The agency received no public comment since publication of the last assessment of public comment.