CFS-25-15-00004-P Expansion of the Business Enterprise Program Priority in Accordance with Chapter 532 of the Laws of 2010

6/24/15 N.Y. St. Reg. CFS-25-15-00004-P

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 25

June 24, 2015

RULE MAKING ACTIVITIES

OFFICE OF CHILDREN AND FAMILY SERVICES

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. CFS-25-15-00004-P

Expansion of the Business Enterprise Program Priority in Accordance with Chapter 532 of the Laws of 2010

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

Proposed Action:

Amendment of sections 729.1, 729.2(b), (e), 729.18, 729.19 and 729.20(b) of Title 18 NYCRR.

Statutory authority:

Social Services Law, sections 20, 34 and 38; Unconsolidated Law, section 8714-a

Subject:

Expansion of the Business Enterprise Program priority in accordance with chapter 532 of the Laws of 2010.

Purpose:

To allow the Business Enterprise Program to expand opportunities for employment of blind and visually impaired individuals.

Substance of proposed rule (Full text is posted at the following State website:http://ocfs.ny.gov):

Amendment of 18 NYCRR Part 729

Section 729.1 of Title 18 is amended pursuant to Chapter 532 of the Laws of 2010 to include buildings which house an authority, agency or entity whose board of directors or executives are appointed by the Governor, or any airport located in the State of New York, as potential locations at which the Commission is authorized to establish a Business Enterprise Program vending facility.

Paragraph (b) of Section 729.2 is amended to include the reference to Chapter 532 of the Laws of 2010.

Paragraph (e) of Section 729.2 is amended to expand the definition of “Instrumentality of the State” to include all authorities and airports located in the State of New York.

Section 729.18 is amended to clarify the Commission’s procedures to establish new locations for the operation of vending facilities. The section is retitled “Vending facility operating agreements with Licensees.” Protections against discrimination for vending facility patrons are expanded. Paragraphs (a) through (c) of this section are deleted and moved to Section 729.19.

Section 729.19 is amended to eliminate the minimum population requirement in State buildings for the Commission to exercise its priority. Prior exemptions for the State University of New York, New York State Thruway Authority and the Department of Corrections and Community Supervision are also eliminated. Paragraphs (a) through (c) of 729.18 have been moved to this section for clarity, and other paragraphs in the existing regulations are reordered.

New paragraph 729.19(f) is added, to provide factors to be examined in determining if a particular location is feasible for the operation of a vending facility. Information the Commission will consider in determining if the location would be adverse to the interests of the state is also set forth.

Section 729.19 is further amended to require agencies, authorities and other entities covered by Chapter 532 of the Laws of 2010 to annually designate a contact to communicate with the Commission regarding Business Enterprise Program matters.

Section 729.20(b) is amended to condition a blind licensee’s receipt of income from vending machines adjacent to the vending facility operated by that blind licensee upon the scope of the vending facility permit as well as whether the receipt of such income by the blind licensee would be adverse to the interests of the state.

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

Public Information Office, New York State Office of Children and Family Services, 52 Washington Street, Rensselaer, New York 12144, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

Same as above.

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

1. Statutory authority:

Social Services Law (SSL) § 20(3) authorizes the New York State Office of Children and Family Services (OCFS) to supervise local social services departments and to establish rules, regulations and policies to carry out these duties.

SSL § 20(3)(d) authorizes OCFS to establish rules, regulations and policies to carry out its powers and duties under this chapter.

SSL § 38 provides statutory authority to the New York State Commission for the Blind (NYSCB), under the supervision and control of the Commissioner of OCFS.

Unconsolidated Laws § 8714-a provides statutory authority for the establishment of the Business Enterprise Program (BEP) and authorizes NYSCB to promulgate regulations necessary to carry out the program.

2. Legislative objectives:

These proposed regulations serve the legislative objective of creating additional business opportunities for people who are legally blind, pursuant to Chapter 693 of the Laws of 1992, as amended by Chapter 532 of the Laws of 2010.

3. Needs and benefits:

NYSCB’s BEP is charged with creating business opportunities for people who are legally blind. It is the mission of NYSCB and the BEP to provide business opportunities to legally blind persons- a segment of New York State’s population that traditionally experiences a high rate of unemployment.

The proposed regulatory amendments expand the priority of the BEP to establish vending facilities on State-owned and other property, by removing a population requirement in State buildings as well as including authorities and airports as locations subject to the BEP’s priority. They also eliminate prior exemptions for vending facilities located on property controlled by the State University of New York, Thruway Authority and the Department of Corrections and Community Supervision, and thus increase the number of potential BEP sites.

As the number of persons in State office and other buildings has decreased, the number of business opportunities for legally blind individuals has also decreased, and BEP vending facilities became less profitable. These amendments will allow the BEP to establish vending facilities in a greater array of locations, and thus potentially enhance business opportunities for licensed blind vendors.

4. Costs:

The initial start-up of a BEP Vending facility typically costs approximately $190,000 and includes all construction, permits, fixtures and coolers in addition to adaptive technologies such as talking cash registers. BEP Program’s current goal is to open one new location each year, as sites are identified. All expenses associated with developing new vending locations are funded entirely with Federal Basic Support Vocational Rehabilitation grant award. Ample Federal funds are readily available and have been set aside specifically to develop employment opportunities for the blind.

The average annual revenue from a vending facility is approximately $40,000. Of that, 20% of all revenue after this first $18,000 is put into the Vending fund to provide benefits and support to blind vendors. This amounts to each vending facility contributing on average $4,400 per year toward benefits for the group. The revenue generated by vending facilities, and thereby the contribution towards benefits, varies greatly based on the profitability of the location. The additional locations made available by the changes in law for 2010 are significantly different than those currently available. If these facilities are in larger, high traffic areas, they will increase net vending revenues, thereby moving the BEP program closer to being self-sustaining.

More definitive fiscal effects of this legislation would be dependent on the pacing of facility deployment and the revenue derived from each facility. NYSCB indicates that future studies related to the feasibility of various new facility roll-outs will provide more detailed background.

The introduction of BEP facilities at SUNY campuses and other municipal buildings will take revenue currently received by these state agencies and direct it to the blind licensee operating the new BEP vending location. This regulatory change requires that assessments be done to ensure that the aforementioned loss of revenue caused by each new location is not adverse to the interest of the State.

5. Local government mandates:

The proposed amendment does not impose any mandates upon local governments.

6. Paperwork:

The proposed amendment requires no additional paperwork.

7. Duplication:

The proposed regulation does not duplicate other state or federal requirements, because the federal regulations at 35 CFR § 395.4 require the NYSCB to promulgate rules and regulations to govern the general operation of the BEP program. Furthermore, where the federal regulations govern the state licensing agency (NYSCB), these proposed regulations govern the operations of the BEP program as they relate to licensed blind managers, the vending facilities and host agencies.

8. Alternatives:

The regulatory amendment is necessary to implement Chapter 532 of the Laws of 2010, which amended Unconsolidated Laws § 8714-a to create the potential for additional business opportunities within the BEP program for people who are legally blind. OCFS considered issuing policy guidance within existing regulatory authority, but believes these regulatory amendments are necessary to promote best practices, achieve consistent operations and compliance, and facilitate the development of new BEP business opportunities for licensed blind vendors.

9. Federal standards:

The proposed regulations do not exceed and are not in conflict with the federal standards.

10. Compliance schedule:

The proposed regulation will take effect upon enactment. OCFS anticipates that it will provide implementation guidance to affected entities.

Regulatory Flexibility Analysis

1. Effect of rule:

The proposed amendments to 18 NYCRR Part 729 expand the priority of the NYS Commission for the Blind (“Commission”) Business Enterprise Program (BEP) by removing the minimum population requirement for the Commission to exercise its priority in State buildings, including State Authorities, and Airports. Previous exemptions to this priority for the State University of New York (SUNY), the New York State Thruway Authority, and the Department of Corrections, now the Department of Corrections and Community Services, are eliminated.

These amendments incorporate the objectives of creating additional business opportunities for people who are legally blind, pursuant to chapter 693 of the Laws of 1992, as amended by chapter 532 of the Laws of 2010.

These amendments do not affect the 85 small businesses that are currently operating in the BEP. There is no impact upon local governmental units.

2. Compliance requirements:

This proposal imposes no new compliance requirements for small businesses or local governments.

3. Professional services:

No additional professional services are needed by small businesses or local governments to implement the proposed amendments.

4. Compliance costs:

There are no new compliance costs for small businesses and local governments imposed by the regulatory proposal.

5. Economic and technological feasibility:

Any affected small business or local government is anticipated to have the economic and technological ability to comply with the regulatory proposal.

6. Minimizing adverse impact:

The proposal is not anticipated to have any adverse impact upon small businesses and local governments.

7. Small business and local government participation:

Since there is no adverse impact expected, we did not consult with local governments or small businesses.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The proposed regulations have the potential to affect rural areas throughout the State, where correctional facilities, State University of New York colleges and universities, and New York State Thruway facilities are located, by facilitating the establishment of additional vending facilities to be operated by licensed blind managers at those locations. Currently, there are several such locations in rural areas in New York State. The proposed regulations could also lead to the development of vending routes in rural areas, which are traditionally underserved. This regulatory proposal could increase business opportunities afforded to legally blind individuals in rural areas.

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

Any new businesses created by the implementation of these regulations would be held to the same standard of reporting, recordkeeping and other compliance requirements, and professional services as existing BEP businesses. There are no new reporting, recordkeeping and other compliance requirements, or professional services required by this regulatory proposal.

3. Costs:

The proposal imposes no new costs upon rural areas.

4. Minimizing adverse impact:

The proposal has no adverse impact.

5. Rural area participation:

Because there is no adverse impact on rural areas, there has not been participation by rural areas in promulgating these proposed regulations.

Job Impact Statement

Chapter 532 of the Laws of 2010 expanded the priority of the Commission for the Blind, Business Enterprise Program (BEP), to provide snack, food, vending and other services in state owned and leased properties. It is apparent from the nature and purpose of the regulatory proposal that it will not have a substantial adverse impact on jobs and employment opportunities. The proposed regulatory amendments are anticipated to create additional business opportunities for legally blind New York State residents and may result in additional federally funded staff positions within the BEP, and thus may have a positive impact on jobs and employment opportunities.