DOS-05-15-00007-A Addition of Provisions Relating to "Sparkling Devices" to the State Uniform Fire Prevention and Building Code

6/3/15 N.Y. St. Reg. DOS-05-15-00007-A

NEW YORK STATE REGISTER

VOLUME XXXVII, ISSUE 22

June 03, 2015

RULE MAKING ACTIVITIES

DEPARTMENT OF STATE

NOTICE OF ADOPTION

 

I.D No. DOS-05-15-00007-A

Filing No. 408

Filing Date. May. 20, 2015

Effective Date. Jun. 03, 2015

Addition of Provisions Relating to "Sparkling Devices" to the State Uniform Fire Prevention and Building Code

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

Action taken:

Addition of section 1228.3 to Title 19 NYCRR.

Statutory authority:

Executive Law, section 377(1)

Subject:

Addition of provisions relating to "sparkling devices" to the State Uniform Fire Prevention and Building Code.

Purpose:

To amend the Uniform Code to provide additional requirements applicable to buildings and structures where “sparkling devices” are manufactured, stored, sold or used and add other restrictions on the use of “sparkling devices.”

Substance of final rule:

This rule adds a new section 1228.3 to Part 1228 of Title 19 of the NYCRR. New Section 1228.3 is summarized as follows:

1228.3 Sparkling devices.

(a) Scope. The provisions of this section 1228.3 shall govern the possession, manufacture, storage, handling, sale, and use of sparkling devices. Any building or structure where sparkling devices are manufactured, stored, handled, sold or used shall be subject to the provisions of this section 1228.3 and to all other provisions of the Uniform Code applicable to such building or structure.

(b) Definitions. In this section, the following terms shall have the following meanings unless a different meaning is clearly required by the context:

(1) 2010 FCNYS. The term “2010 FCNYS” means the publication entitled “Fire Code of New York State” published by the International Code Council, Inc. (publication date: August 2010).

(2) APPROVED. The term “approved” means acceptable to the code enforcement official.

(3) CODE ENFORCEMENT OFFICIAL. The term “code enforcement official” means the officer or other designated authority charged with the administration and enforcement of the Uniform Code, or a duly authorized representative.

(4) HIGHWAY. The term “highway” means a public street, public alley or public road.

(5) LISTED. The term “listed” means equipment or materials included on a list published by an approved testing laboratory, inspection agency or other organization concerned with current product evaluation that maintains periodic inspection of production of listed equipment or materials, and whose listing states that equipment or materials comply with approved nationally recognized standards and have been tested or evaluated and found suitable for use in a specified manner.

(6) NFPA 495. The term “NFPA 495” means the publication entitled “Explosive Materials Code” published by the National Fire Protection Association (publication date: 2006).

(7) NFPA 1124. The term “NFPA 1124” means the publication entitled “Code for the Manufacture, Transportation, Storage, and Retail Sales of Fireworks and Pyrotechnic Articles” published by the National Fire Protection Association (publication date: 2006).

(8) OPERATING BUILDING. The term “operating building” means a building occupied in conjunction with the manufacture, transportation or use of explosive materials, sparkling devices, or both. Operating buildings are separated from one another with the use of intraplant or intraline distances.

(9) SPARKLING DEVICES. The term “sparkling devices” shall have the meaning ascribed to that term by section 270.00(1)(a)(vi) of the Penal Law, and shall include “ground-based or hand-held devices” (as defined in subparagraph (i) of this paragraph) and “novelties” (as defined in subparagraph (ii) of this paragraph).

(i) Ground-Based or Hand-Held Devices. The term “ground-based or hand-held devices” shall include the category of devices described in section 270.00(1)(a)(vi)(1) of the Penal Law [the full text of the rule includes the statutory definition here].

(ii) Novelties. The term “novelties” shall include the category of devices described in section 270.00(1)(a)(iv)(2) of the Penal Law [the full text of the rule includes the statutory definition here].

(c) Other applicable laws. The provisions of this section 1228.3 shall be in addition to, and not in limitation of, (1) all other provisions of the Uniform Code applicable to any building or structure where sparkling devices are manufactured, stored, handled, sold or used and (2) all other statutes, rules, regulations, local laws, and ordinances applicable to the possession, manufacture, storage, handling, sale and/or use of sparkling devices, including but not limited to sections 270.00 and 405.00 of the Penal Law; section 392-j of the General Business Law; section 156-h of the Executive Law; Part 225 of Title 9 of the NYCRR; Part 39 of Title 12 of the NYCRR (Industrial Code Rule 39); and local laws, ordinances or regulations relating to operating permits as contemplated by 19 NYCRR section 1203.3(g). Nothing in this section 1228.3 shall be construed as permitting the possession, manufacture, handling, sale and/or use of sparkling devices in violation of any other law, statute, rule, regulation, local law or ordinance applicable to the possession, manufacture, storage, handling, sale and/or use of sparkling devices. Nothing in this section 1228.3 shall be construed as permitting the possession, manufacture, handling, sale and/or use of sparkling devices in any jurisdiction where the possession, manufacture, handling, sale and/or use of sparking devices has not been made legal in accordance with the provisions of section 405.00 of the Penal Law.

(d) Hazardous conditions.

(1) From time to time, the New York State Department of Environmental Conservation (DEC) publishes fire danger ratings for each fire danger rating area (FDRA) in the State. The use of sparkling devices at any location within a FDRA designated by the DEC as having a fire danger rating of “Extreme (Red)” at any time when such designation is in effect is prohibited.

(2) In addition, the DEC may from time to time designate certain areas within the State as being subject to “Red Flag” conditions. The use of sparkling devices at any location within any area designated by the DEC as being subject to “Red Flag” conditions at any time such designation remains in effect is prohibited.

(e) Use of ground-based or hand-held devices in or near buildings or structures.

(1) No ground-based or hand-held device (as defined in subparagraph (i) of paragraph (9) of subdivision (b) of this section) shall be used inside any building or structure unless (i) such ground-based or hand-held device is listed for indoor use and (ii) the use of such ground-based or hand-held device inside such building or structure has been approved.

(2) No ground-based or hand-held device (as defined in subparagraph (i) of paragraph (9) of subdivision (b) of this section) shall be used within 10 feet of any building or structure unless (i) such ground-based or hand-held device is listed for indoor use or for use within 10 feet of a building or structure and (ii) the use of such ground-based or hand-held device within 10 feet of such building or structure has been approved.

(f) Retail sales.

(1) No persons shall construct a retail display of sparkling devices or offer sparkling devices for sale upon highways, sidewalks or public property or in a Group A or E occupancy.

(2) Retail sales of sparkling devices shall comply with the applicable requirements of NFPA 1124.

(3) A minimum of one pressurized-water portable fire extinguisher complying with section 906 of the 2010 FCNYS shall be located not more than 15 feet (4572 mm) and not less than 10 feet (3048 mm) from each area where sparkling devices are stored or displayed for retail sale.

(4) “No Smoking” signs complying with section 310 of the 2010 FCNYS shall be conspicuously posted in each area where sparkling devices are stored or displayed for retail sale.

(g) Storage of sparkling devices. The storage or temporary storage of sparkling devices shall comply with the applicable requirements of NFPA 1124 and, in addition, shall be subject to the provisions of subdivision (h) of this section 1228.3.

(h) Limit on quantity. The code enforcement official is authorized to limit the quantity of sparkling devices permitted to be kept or stored at any one- or two-family dwelling, townhouse, or any building or structure containing any Group R occupancy.

(i) Records. Manufacturers of sparkling devices shall maintain records of chemicals, chemical compounds and mixtures required by the U.S. Department of Labor regulations set forth in 29 CFR Part 1910.1200 and Section 407 of the 2010 FCNYS.

(j) Manufacture, assembly, and testing of sparkling devices.

(1) The manufacture, assembly, and testing of sparkling devices, and facilities where the manufacture, assembly and/or testing of sparkling device occur, shall comply with the requirements of this subdivision and NFPA 495 or NFPA 1124.

(2) Emergency plans, emergency drills, employee training and hazard communication shall conform to the provisions of this section and Sections 404, 405, 406 and 407 of the 2010 FCNYS.

(3) Detailed Hazardous Materials Management Plans (HMMP) and Hazardous Materials Inventory Statements (HMIS) complying with the requirements of Section 407 of the 2010 FCNYS shall be prepared and submitted to the local emergency planning committee, the code enforcement official, and the local fire department. A copy of the required HMMP and HMIS shall be maintained on site and furnished to the code enforcement official on request.

(4) Workers who handle or dispose of sparkling devices shall be trained in the hazards of the materials and processes in which they are to be engaged and with the safety rules governing such materials and processes.

(5) Approved emergency procedures shall be formulated for each facility where sparkling devices are manufactured, assembled and/or tested. Such procedures shall include personal instruction in any emergency that may be anticipated. All personnel shall be made aware of an emergency warning signal.

(k) Incorporation by reference.

(1) The 2010 FCNYS. The publication entitled “Fire Code of New York State” published by International Code Council, Inc. (publication date: August 2010) is hereby incorporated by reference in this section 1228.3. Copies of said publication (referred to herein as the 2010 FCNYS) may be obtained from the publisher at the following address: International Code Council, Inc., 500 New Jersey Avenue, NW, 6th Floor, Washington, DC 20001. The 2010 FCNYS is available for public inspection and copying at New York State Department of State, 99 Washington Avenue, Albany, NY 12231-0001.

(2) NFPA 495. The publication entitled “Explosive Materials Code” published by the National Fire Protection Association (publication date: 2006) is hereby incorporated by reference in this section 1228.3. Copies of said publication (referred to herein as NFPA 495) may be obtained from the publisher at the following address: National Fire Protection Association, Batterymarch Park, Quincy, MA 02269. NFPA 495 is available for public inspection and copying at New York State Department of State, 99 Washington Avenue, Albany, NY 12231-0001.

(3) NFPA 1124. The publication entitled “Code for the Manufacture, Transportation, Storage, and Retail Sales of Fireworks and Pyrotechnic Articles” published by the National Fire Protection Association (publication date: 2006) is hereby incorporated by reference in this section 1228.3. Copies of said publication (referred to herein as NFPA 1124) may be obtained from the publisher at the following address: National Fire Protection Association, Batterymarch Park, Quincy, MA 02269. NFPA 1124 is available for public inspection and copying at New York State Department of State, 99 Washington Avenue, Albany, NY 12231-0001.

Final rule as compared with last published rule:

This rule will add a new Section 1228.3 to Part 1228 of Title 19 NYCRR. Nonsubstantive changes were made to the following subdivisions of the rule as originally proposed:

Subdivision (b): In the introductory sentence (which had read “In this section, the following terms shall have the following meanings unless a different meaning is clearly implied required by the context:”), the word “implied” has been changed to “required.”

In addition, the definition of the term “sparkling devices displays” (originally in paragraph 10 of this subdivision) has been deleted.

Subdivision (d): Former subdivision (d) has been re-numbered as subdivision (e); re-captioned as “Use of ground-based or hand-held devices in or near buildings;” and revised to provide that the provisions of this subdivision apply only to ground-based or hand-held devices, and not to “novelties.”

Subdivision (e): Former subdivision (e) has been re-numbered as subdivision (f) and revised by removing the prohibition against allowing members of the public to be able to handle or touch sparkling devices while they are on display for retail sale, and by adding a provision making retail sales subject to the provisions of NFPA 1124.

Subdivision (f): Former subdivision (f) has been re-numbered as subdivision (h) and revised to provide that the code enforcement official’s authority to limit the quantity of sparkling devices to be kept or stored at a location applies only to one- and two-family dwellings, townhouses, and buildings containing a Group R occupancy.

Subdivision (g): Former subdivision (g), which would have added provisions relating to sparkling device displays, has been deleted.

Subdivision (h): Former subdivision (h), which would have authorized the code enforcement official to require supervision of any sparkling device display or any other use of sparkling devices, has been deleted.

Subdivision (i): Former subdivision (i), which would have added provisions relating to the removal and disposal of sparkling devises, has been deleted.

Subdivision (j): Former subdivision (j), which would have required the person using sparkling devices to report any accident involving the use of sparkling devices and resulting in death, personal injury or property damage to the code enforcement official, has been deleted.

Subdivision (k): Former subdivision (k) has been re-numbered as subdivision (i) and re-captioned as “Records,” with no other change.

Subdivision (l): Former subdivision (l) has been re-numbered as subdivision (j), with no other change.

Subdivision (m): Former subdivision (m), which would have required discontinuance of the use of sparkling devices when the code enforcement official or the operator believed that a hazardous condition existed, has been re-numbered as subdivision (d) and revised to provide for a more objective means of determining when “hazardous conditions” warrant suspension of the use of sparkling devices, viz., when the Department of Environmental Conservation has designated the applicable fire danger rating area to be rated “Extreme (Red)” or the subject location to be subject to “Red Flag” conditions.

Subdivision (n): Former subdivision (n) has been re-numbered as subdivision (g), with no other change.

Subdivision (o): Former subdivision (o) has been re-numbered as subdivision (k), with no other change.

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

Mark Blanke, Department of State, 99 Washington Ave., Albany, NY 12231-0001, [phone], email: [e-mail]

Additional matter required by statute:

Executive Law § 378 (15)(a) provides that “no change to the [Uniform Code] shall become effective until at least ninety days after the date on which notice of such change has been published in the state register, unless the [State Fire Prevention and Building Code Council (the Code Council)] finds that (i) an earlier effective date is necessary to protect health, safety and security; or (ii) the change to the code will not impose any additional compliance requirements on any person.”

At its meeting held on May 15, 2015, the Code Council found that making this rule effective immediately upon the publication of the Notice of Adoption is required to protect health, safety and security because Chapter 477 of the Laws of 2014 (the chapter law amending sections 270.00 and 405.00 of the Penal Law) became effective on December 21, 2014 and cities and counties may begin to legalize sparkling devices at any time on or after such effective date.

Accordingly, this rule will become effective immediately upon the publication of this Notice of Adoption.

Revised Regulatory Impact Statement

1. STATUTORY AUTHORITY.

Executive Law § 377(1) authorizes the State Fire Prevention and Building Code Council to amend the provisions of the New York State Uniform Fire Prevention and Building Code (“Uniform Code”) from time to time.

This rule amends the Uniform Code to provide additional requirements applicable to buildings and structures where sparkling devices are manufactured, stored or used. This rule also adds other restrictions on the use of sparkling devices intended to minimize the danger of fire in buildings and structures.

2. LEGISLATIVE OBJECTIVES.

Executive Law § 378(1) directs that the Uniform Code shall address standards for the construction of “all buildings or classes of buildings, or the installation of equipment therein, including standards for materials to be used in connection therewith, and standards for safety and sanitary conditions.”

Executive Law § 371(2)(b) provides that it shall be the public policy of this State “to provide for the promulgation of a uniform code addressing building construction and fire prevention in order to provide a basic minimum level of protection to all people of the state from hazards of fire and inadequate building construction. . . .”

Prior to the effective date of Chapter 477 of the Laws of 2014, only persons who obtained a special permit were allowed to possess, sell or use fireworks of any type. In light of this general prohibition on the possession, sale, and use of fireworks, the Uniform Code currently has few, if any, provisions relating specifically to fireworks.

Section 270.00 Of the Penal Law, as amended by Chapter 477 of the Laws of 2014, defines the term “fireworks” as including several categories of devices, including “sparkling devices.” Sections 270.00 and 405.00 of the Penal Law, as amended by Chapter 477 of the Laws of 2014, provide, in substance, that except in cities having a population in excess of 1,000,000, a city or a county may adopt enact a local law legalizing sparkling devices within such city or county. With the 2014 amendments to Sections 270.00 and 405.00 of the Penal Law, the possession, sale, and use of sparkling devices will be legal in cities and counties that elect to legalize those devices.

This rule fulfills the legislative objectives set forth in Executive Law § 378(1) and Executive Law § 371(2)(b) by amending the Uniform Code to provide additional requirements applicable to buildings and structures where sparkling devices are manufactured, stored or used and additional requirements applicable to the use of sparkling devices intended to minimize the danger of fire in buildings and structures.

3. NEEDS AND BENEFITS.

While perhaps not as dangerous as the other categories of “fireworks” included in the amended definition in Penal Law § 270.00, sparkling devices do include pyrotechnic compositions and do present an additional risk of fire, particularly if sparkling devices are manufactured, stored or used improperly.

The 2010 edition of the Fire Code of New York State (the 2010 FCNYS) is one of the publications that currently make up the Uniform Code. The 2010 FCNYS is based on the 2006 edition of the International Fire Code (the 2006 IFC), a model code published by the International Code Council. The 2006 IFC contains an entire chapter devoted to explosives and fireworks. Because of the general prohibition against all types of fireworks in this State, the 2010 FCNYS currently contains only an abbreviated version of the 2006 IFC’s explosives and fireworks chapter.

This rule will add a new Section 1228.3 to Part 1228 of Title 19 NYCRR. New Section 1228.3 will include those provisions in the 2006 IFC’s explosives and fireworks chapter which are currently missing from the 2010 FCNYS and which, in the opinion of the Department of State and the Code Council, are required to address the additional fire and safety concerns posed by the potential legalization of sparkling devices in this State (or in certain cities and counties in this State).

4. COSTS.

It is anticipated that regulated parties will not incur any significant costs to comply with this rule initially and no significant costs to continue to comply with this rule.

For the most part, this rule will impose no significant requirements on buildings or structures where sparkling devices will be manufactured, stored, sold or used over and above those requirements imposed on such buildings or structures by other already existing provisions of the Uniform Code or by other already existing laws, statutes, rules, and regulations. Rather, this rule serves more as a clarification that those other already existing requirements will apply to buildings and structures where previously prohibited activities (the manufacture, storage, sale or use of sparkling devices) will occur. For example, new Section 1228.3(i) to be added by this rule provides that manufacturers of sparkling devices must maintain records of chemicals, chemical compounds and mixtures required by the U.S. Department of Labor regulations set forth in 29 CFR Part 1910.1200 and Section 407 of the 2010 FCNYS. This provision will not add to the requirements that already exist under 29 CFR Part 1910.1200 and Section 407 of the 2010 FCNYS. Rather, this provision will simply clarify that the requirements already existing under 29 CFR Part 1910.1200 and Section 407 of the 2010 FCNYS will apply to the newly-legalized activity of manufacturing sparkling devices.

Similarly, new Section 1228.3(j) to be added by this rule will clarify that certain requirements that already exist under Section 3305 of the 2010 FCNYS will apply to the manufacture, assembly, and testing of sparkling devices, and facilities where the manufacture, assembly and/or testing of sparkling devices occur.

Other provisions to be added by this rule will restrict the use of sparkling devices in ways intended to reduce fire caused by sparkling devices; it is anticipated that these provisions will impose little or no costs on regulated parties. For example, new Section 1228.3(e) will restrict the use of ground-based or hand-held devices in or within 10 feet of buildings and structures; new Section 1228.3(f) will prohibit the sale of sparkling devices on highways, sidewalks or public property and in assembly occupancies and in educational occupancies; new Section 1228.3(h) will authorize the code enforcement official to limit the amount of sparkling devices in any one- or two-family dwelling, townhouse, or any building or structure containing any Group R occupancy; and new Section 1228.3(d) will prohibit the use of sparkling devices in an area designated by the NYS Department of Environmental Conservation as being in an “Extreme (Red)” fire risk area or being subject to “Red Flag” fire risk conditions.

Other provisions to be added by this rule will impose certain new obligations on regulated parties; however, the Department of State anticipates that the cost of complying with these new obligations will be minimal. For example:

New Section 1228.3(f) will require places where retail sales of sparkling devices take place to have fire extinguishers and “no smoking” signs. The Department of State estimates that the cost of a fire extinguisher will be $35 and that the annual cost of testing and maintaining a fire extinguisher will be $10. The Department of State estimates that the cost of obtaining and posting a “no smoking” sign will be $17.

New Section 1228.3(g) will provide that the storage of sparkling devices shall comply with the applicable requirements of NFPA 1124.

There are no costs to the Department of State for the implementation of this rule. The Department is not required to develop any additional regulations or develop any programs to implement this rule.

There are no costs to the State of New York or to local governments for the implementation of the provisions to be added by this rule, except as follows:

First, the State and all local governments are subject to the Uniform Code. If the State or any local government chooses to manufacture, store, sell or use sparkling devices, the State or such local government will have to comply with this rule to the same degree as any other regulated party.

Second, since this rule adds provisions to the Uniform Code, the authorities responsible for administering and enforcing the Uniform Code will have additional items to verify in the process of reviewing building permit applications, conducting construction inspections, and (where applicable) conducting periodic fire safety and property maintenance inspections. However, the need to verify compliance with this rule should not have a significant impact on the already existing permitting and inspection processes.

5. PAPERWORK.

New Section 1228.3(i) will require manufacturers of sparkling devices to maintain records of chemicals, chemical compounds and mixtures required by the U.S. Department of Labor regulations set forth in 29 CFR Part 1910.1200 and Section 407 of the 2010 FCNYS.

6. LOCAL GOVERNMENT MANDATES.

This rule will not impose any new program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district, except as follows:

First, if any county, city, town, village, school district, fire district or other special district chooses to manufacture, store, sell or use sparkling devices, such county, city, town, village, school district, fire district or other special district will have to comply with this rule to the same degree as any other regulated party.

Second, cities, towns and villages (and sometimes counties) are charged by Executive Law section 381 with the responsibility of administering and enforcing the Uniform Code; since this rule adds provisions to the Uniform Code, the aforementioned local governments will be responsible for administering and enforcing the requirements of this rule along with all other provisions of the Uniform Code.

The rule does not otherwise impose any new program, service, duty or responsibility upon any county, city, town, village, school district, fire district or other special district.

7. DUPLICATION.

As discussed in the “Costs” section of this Regulatory Impact Statement, this rule will clarify that certain already existing Federal and State requirements will apply to newly legalized activities (the manufacture, storage, sale, and use of sparkling devices) and to buildings and structures where those activities will occur. However, the Department of State believes that such clarification is appropriate because the Uniform Code does not currently have any provisions expressly addressing sparkling devices.

The rule does not otherwise duplicate any existing Federal or State requirement.

8. ALTERNATIVES.

The alternative of adding no new provisions expressly dealing with sparkling devices was considered. However, since the recent amendments to the Penal Law will legalize sparkling devices in cities and counties that so elect, the Department of State determined that a rule clarifying that certain already existing requirements will apply to buildings where this newly legalized activity will occur, and adding certain new restrictions on the use of the newly legalized devices, was more appropriate.

The alternative of incorporating all of the currently omitted provisions in the 2006 IFC’s chapter on explosives and fireworks was considered. However, since the recent amendments to the Penal Law legalize one category of fireworks, the Department of State determined that adding only those provisions appropriate for sparkling devices was more appropriate.

9. FEDERAL STANDARDS.

There are no standards of the Federal Government which address the subject matter of the rule. The United States Consumer Product Safety Commission, the United States Department of Labor, and the United States Department of Transportation regulate fireworks, but do not address building code-related topics.

10. COMPLIANCE SCHEDULE.

The Department of State anticipates that regulated parties will be able to comply with this rule immediately.

Revised Regulatory Flexibility Analysis

1. EFFECT OF RULE:

Section 270.00 of the Penal Law, as amended by Chapter 477 of the Laws of 2014, defines “fireworks” as including certain categories of devices, including “sparkling devices.” Section 405.00 of the Penal Law, as amended by Chapter 477 of the Laws of 2014, permits cities and counties outside New York City to provide that “sparkling devices” will be legal in such city or county. This rule amends the State Fire Prevention and Building Code Council to provide additional requirements applicable to buildings and structures where “sparkling devices” are manufactured, stored or used. This rule also adds other restrictions on the use of “sparkling devices” intended to minimize the danger of fire in buildings and structures.

This rule will affect any small business or local government that owns a building or structure in which sparkling devices will be manufactured, stored, sold or used. The number of small businesses and local governments that will be affected will depend on the number of cities and counties that choose to make sparkling devices legal and on the number of small businesses in those cities and counties that choose to manufacture, store, sell or use sparkling devices. The Department of State is not able to estimate the number of small businesses and local governments that will be so affected.

Since this rule adds provisions to the Uniform Code, each local government that is responsible for administering and enforcing the Uniform Code will be affected by this rule. The Department of State estimates that approximately 1,600 local governments (mostly cities, towns and villages, as well as several counties) are responsible for administering and enforcing the Uniform Code.

2. COMPLIANCE REQUIREMENTS:

New 19 NYCRR Section 1228.3(f) will require places where retail sales of sparkling devices take place to have fire extinguishers and “no smoking” signs.

New 19 NYCRR Section 1228.3(g) will provide that the storage of sparkling devices shall comply with the applicable requirements of NFPA 1124.

New 19 NYCRR Section 1228.3(i) will provide that manufacturers of sparkling devices must maintain records of chemicals, chemical compounds and mixtures required by the U.S. Department of Labor regulations set forth in 29 CFR Part 1910.1200 and Section 407 of the 2010 FCNYS. This provision will not add to the requirements that already exist under 29 CFR Part 1910.1200 and Section 407 of the 2010 FCNYS. Rather, this provision will simply clarify that the requirements already existing under 29 CFR Part 1910.1200 and Section 407 of the 2010 FCNYS will apply to the newly-legalized activity of manufacturing sparkling devices.

Since this rule amends the Uniform Code, local governments that administer and enforce the Uniform Code will be required to check for compliance with this rule when reviewing applications for building permits, when performing construction inspections, and when performing periodic fire safety and property maintenance inspections.

3. PROFESSIONAL SERVICES:

No professional services will be required to comply with the rule.

4. COMPLIANCE COSTS:

For the owner of a building where retail sales of sparkling devices will occur, the initial capital costs of complying with the rule will include the cost of purchasing and installing the fire extinguishers and “no smoking” signs. The Department of State estimates that the cost of purchasing and installing a fire extinguisher will be $35 and the cost of purchasing and installing a “no smoking” sign will be $17. Such costs are not likely to vary for small businesses or local governments of different types and differing sizes.

For the owner of a building where retail sales of sparkling devices will occur, the annual costs of complying with this rule will include the cost of testing and maintaining the fire extinguishers. The Department of State estimates that the annual cost of testing and maintaining a fire extinguisher will be $10. Such costs are not likely to vary for small businesses or local governments of different types and differing sizes.

5. ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

It is economically and technologically feasible for regulated parties to comply with the rule. No substantial capital expenditures are imposed and no new technology need be developed for compliance.

6. MINIMIZING ADVERSE IMPACT:

Prior to the enactment of Chapter 477 of the Laws of 2014, all fireworks were, for the most part, illegal in this State (exceptions were made for fireworks used pursuant to a permit issued under section 405.00 of the Penal Law). As a result of Chapter 477 of the Laws of 2014, sparkling devices will be legal in cities and counties that elect to legalize such devices.

The 2010 edition of the Fire Code of New York State (the 2010 FCNYS) is one of the publications that currently make up the Uniform Code. The 2010 FCNYS is based on the 2006 edition of the International Fire Code (the 2006 IFC), a model code published by the International Code Council. The 2006 IFC contains an entire chapter devoted to explosives and fireworks. Because of the general prohibition against all types of fireworks in this State, the 2010 FCNYS currently contains only an abbreviated version of the 2006 IFC’s explosives and fireworks chapter.

This rule will add those provisions in the 2006 IFC’s explosives and fireworks chapter which are currently missing from the 2010 FCNYS and which, in the opinion of the Department of State and the Code Council, are required to address the additional fire and safety concerns posed by the potential legalization of sparkling devices in this State (or in certain cities and counties in this State).

The alternative of incorporated all of the currently omitted provisions in the 2006 IFC’s chapter on explosives and fireworks was considered. However, since the recent amendments to the Penal Law legalize one category of fireworks, the Department of State determined that adding only those provisions appropriate for sparkling devices was more appropriate.

The establishment of differing compliance requirements or timetables with respect to buildings owned or operated by small businesses or local governments was not considered because the fire and safety-related requirements to be imposed by this rule apply without regard to the identity of the owner of the building or structure where sparkling devices are to be manufactured, stored, sold or used.

Providing exemptions from coverage by the rule was not considered because such exemptions would endanger public safety.

7. SMALL BUSINESS AND LOCAL GOVERNMENT PARTICIPATION:

The Department of State notified interested parties throughout the State of the proposed adoption of this rule by means of notices posted on the Department’s website and notices published in Building New York, a monthly electronic news bulletin covering topics related to the Uniform Code and the construction industry which is prepared by the Department of State and which is currently distributed to approximately 10,000 subscribers, including local governments, design professionals and others involved in all aspects of the construction industry.

Revised Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBERS OF RURAL AREAS.

Section 270.00 of the Penal Law, as amended by Chapter 477 of the Laws of 2014, defines “fireworks” as including certain categories of devices, including “sparkling devices.” Section 405.00 of the Penal Law, as amended by Chapter 477 of the Laws of 2014, permits cities and counties outside New York City to provide that “sparkling devices” will be legal in such city or county. This rule amends the State Fire Prevention and Building Code Council to provide additional requirements applicable to buildings and structures where “sparkling devices” are manufactured, stored or used. This rule also adds other restrictions on the use of “sparkling devices” intended to minimize the danger of fire in buildings and structures. Since the Uniform Code applies in all areas of the State (other than New York City), this rule will apply in all rural areas of the State.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS.

New 19 NYCRR Section 1228.3(f) will require places where retail sales of sparkling devices take place to have fire extinguishers and “no smoking” signs.

New 19 NYCRR Section 1228.3(g) will provide that the storage of sparkling devices shall comply with the applicable requirements of NFPA 1124.

New 19 NYCRR Section 1228.3(i) will require that manufacturers of sparkling devices must maintain records of chemicals, chemical compounds and mixtures required by the U.S. Department of Labor regulations set forth in 29 CFR Part 1910.1200 and Section 407 of the 2010 FCNYS. This provision will not add to the requirements that already exist under 29 CFR Part 1910.1200 and Section 407 of the 2010 FCNYS. Rather, this provision will simply clarify that the requirements already existing under 29 CFR Part 1910.1200 and Section 407 of the 2010 FCNYS will apply to the newly-legalized activity of manufacturing sparkling devices.

3. COMPLIANCE COSTS.

For the owner of a building where retail sales of sparkling devices will occur, the initial capital costs of complying with the rule will include the cost of purchasing and installing the fire extinguishers and “no smoking” signs. The Department of State estimates that the cost of purchasing and installing a fire extinguisher will be $35 and the cost of purchasing and installing a “no smoking” sign will be $17. Such costs are not likely to vary for small businesses or local governments of different types and differing sizes.

For the owner of a building where retail sales of sparkling devices will occur, the annual costs of complying with this rule will include the cost of testing and maintaining the fire extinguishers. The Department of State estimates that the annual cost of testing and maintaining a fire extinguisher will be $10. Such costs are not likely to vary for small businesses or local governments of different types and differing sizes.

4. MINIMIZING ADVERSE IMPACT.

Prior to the enactment of Chapter 477 of the Laws of 2014, all fireworks were, for the most part, illegal in this State (exceptions were made for fireworks used pursuant to a permit issued under section 405.00 of the Penal Law). As a result of Chapter 477 of the Laws of 2014, sparkling devices will be legal in cities and counties that elect to legalize such devices.

The 2010 edition of the Fire Code of New York State (the 2010 FCNYS) is one of the publications that currently make up the Uniform Code. The 2010 FCNYS is based on the 2006 edition of the International Fire Code (the 2006 IFC), a model code published by the International Code Council. The 2006 IFC contains an entire chapter devoted to explosives and fireworks. Because of the general prohibition against all types of fireworks in this State, the 2010 FCNYS currently contains only an abbreviated version of the 2006 IFC’s explosives and fireworks chapter.

This rule will add those provisions in the 2006 IFC’s explosives and fireworks chapter which are currently missing from the 2010 FCNYS and which, in the opinion of the Department of State and the Code Council, are required to address the additional fire and safety concerns posed by the potential legalization of sparkling devices in this State (or in certain cities and counties in this State).

The alternative of incorporated all of the currently omitted provisions in the 2006 IFC’s chapter on explosives and fireworks was considered. However, since the recent amendments to the Penal Law legalize one category of fireworks, the Department of State determined that adding only those provisions appropriate for sparkling devices was more appropriate.

The establishment of differing compliance requirements or timetables with respect to buildings and operations in rural areas was not considered because the fire and safety-related requirements to be imposed by this rule apply without regard to the location of the building or structure where sparkling devices are to be manufactured, stored, sold or used.

Providing exemptions from coverage by the rule was not considered because such exemptions would endanger public safety.

5. RURAL AREA PARTICIPATION.

The Department of State notified interested parties throughout the State of the proposed adoption of this rule by means of notices posted on the Department’s website and notices published in Building New York, a monthly electronic news bulletin covering topics related to the Uniform Code and the construction industry which is prepared by the Department of State and which is currently distributed to approximately 10,000 subscribers, including local governments, design professionals and others involved in all aspects of the construction industry.

Revised Job Impact Statement

The Department of State has concluded after reviewing the nature and purpose of the rule that it will not have a “substantial adverse impact on jobs and employment opportunities” (as that term is defined in section 201-a of the State Administrative Procedures Act) in New York.

This rule amends the State Uniform Fire Prevention and Building Code (the Uniform Code) to provide additional requirements applicable to buildings and structures where sparkling devices are manufactured, stored or used. This rule also adds other restrictions on the use of sparkling devices intended to minimize the danger of fire in buildings and structures.

For the most part, this rule will impose no significant requirements on buildings or structures where sparkling devices will be manufactured, stored, sold or used over and above those requirements imposed on such buildings or structures by other already existing provisions of the Uniform Code or by other already existing laws, statutes, rules, and regulations. Rather, this rule serves more as a clarification that those other already existing requirements will apply to buildings and structures where previously prohibited activities (the manufacture, storage, sale or use of sparkling devices) will occur.

Other provisions to be added by this rule will restrict the use of sparkling devices in ways intended to reduce fire caused by sparkling devices; it is anticipated that these provisions will impose little or no costs on regulated parties.

Other provisions to be added by this rule will impose certain new obligations on regulated parties; however, the Department of State anticipates that the cost of complying with these new obligations will be minimal. For example, new Section 1228.3(f) will require places where retail sales of sparkling devices take place to have fire extinguishers and “no smoking” signs. The Department of State estimates that the cost of a fire extinguisher will be $35 and that the annual cost of testing and maintaining a fire extinguisher will be $10. The Department of State estimates that the cost of obtaining and posting a “no smoking” sign will be $17.

Therefore, this rule should have no substantial adverse impact on the cost of buildings or structures where sparkling devices will be manufactured, stored, sold or used and, consequently, this rule should have no substantial adverse impact on jobs and employment opportunities related to the manufacture, storage, sale or use of sparkling devices.

Initial Review of Rule

As a rule that requires a RFA, RAFA or JIS, this rule will be initially reviewed in the calendar year 2018, which is no later than the 3rd year after the year in which this rule is being adopted.

Assessment of Public Comment

The Notice of Emergency Adoption and Proposed Rule Making was published in the State Register on February 4, 2015. A public hearing was held on March 2, 2015. The Department of State (DOS) received the comments described below. Where identical or substantially similar comments were received from more than one commenter, those comments are discussed in one consolidated statement below.

Summary and Analysis of Issues Raised and Significant Alternatives Suggested by Comments, and Reasons why any Significant Alternatives were not incorporated into the Rule

COMMENT 1: Defining the term “Sparking Device Display” (paragraph (10) of subdivision (b) of the rule as originally proposed) is unnecessary. Regulating private gatherings is not the intent of the law. Public gatherings are currently regulated.

DOS RESPONSE TO COMMENT 1: The provisions in the rule, as originally proposed, relating to “sparkling device displays” were based on provisions in the International Fire Code (IFC) relating to “fireworks displays.” Upon further review of the IFC provision relating to fireworks displays, DOS has determined that application of those provisions to displays of sparkling devices is unnecessary. The definition of “sparkling device display” and all other provisions relating to “sparkling device displays” have been deleted from the rule as adopted.

COMMENT 2: Revise the provision restricting the use of sparkling devices in or near buildings (subdivision (d) in the rule as originally proposed) to provide that such restrictions do not apply to “novelties” such as party poppers and snaps.

DOS RESPONSE TO COMMENT 2: DOS has determined that provisions restricting the use of devices in or near buildings should apply to “ground-based or hand-held devices” but are not required in the case of the more benign “novelties.” Former subdivision (d) has been re-numbered as subdivision (e) and has been revised to make its provisions applicable only to “ground-based or hand-held devices.”

COMMENT 3: The provisions restricting the use of devices in or near buildings (subdivision (d) in the rule as originally proposed) will be difficult if not impossible to enforce and the violation of said provision will result in dangerous situations which will increase the risk of fire and injury. The enforcement action will only be applied after the fact.

DOS RESPONSE TO COMMENT 3: The commenter does not appear to argue that these provisions should be deleted; rather, it appears that the commenter agrees that these provisions are necessary albeit difficult to enforce. DOS agrees that these provisions are necessary. DOS also believes that these provisions will be no more difficult to enforce that similar provisions already found in the Uniform Code, such as Section F308 of the Fire Code of New York State, which regulates open flames, fire and burning on all premises. Former subdivision (d) has been re-numbered as subdivision (e), has been revised to make its provisions applicable only to “ground-based or hand-held devices” (as discussed in DOS Response to Comment 2, above), and has not been otherwise changed.

COMMENT 4: The provision that prohibits the public to reach, touch or handle the sparkling devices before he or she purchases them (paragraph (2) of subdivision (e) of the rule as originally proposed) is unnecessarily restrictive to the point where these regulations will essentially eliminate the sale of sparkling devices. Comprehensive retail sales guidelines are in NFPA 1124. There is no regulatory basis for this requirement.

DOS RESPONSE TO COMMENT 4: DOS agrees that the provision in question should be deleted and replaced with a provision requiring retail sales of sparkling devices to comply with NFPA 1124. This change is reflected in paragraph (2) of subdivision (f) of the rule as adopted.

COMMENT 5: The provision requiring fire extinguishers in areas where sparkling devices are stored or displayed for retail sale (subdivision (e), paragraph (3), of the rule as originally proposed) will be difficult if not impossible and will require an inspection program for said occupancies; such program has not been identified in the regulations.

DOS RESPONSE TO COMMENT 5: DOS disagrees. Section 901.6, item 6, of the Fire Code of New York State would allow the Code Enforcement Official or Building Safety Inspector to require portable fire extinguishers be provided upon discovery of the offering of sparkling devices for sale. In addition, the window allowed by statute for the sale of sparkling devices each year is very small - June 1 through July 5, and December 26 through January 2. The provision in question has been re-numbered as subdivision (f), paragraph (3), of the rule as adopted, and retained with no other change.

COMMENT 6: The provision authorizing a Code Enforcement Official to limit the quantity of sparkling devices at a given location (subdivision (f) in the rule as originally proposed) is unnecessary in light of the guidelines in NFPA 1124. It is also confusing as to whether the limits on quantity provided for in this section are meant to apply to retail sales venues. The balance of the provision (specific to one- or two-family dwellings, townhouses, Group R occupancies) should be retained.

DOS RESPONSE TO COMMENT 6: DOS has reviewed NFPA 1124, and has determined (1) that the guidelines provided in NFPA 1124 are sufficient for retail locations, and (2) that the provision authorizing a Code Enforcement Official to limit the quantity of sparkling devices at a given location should be revised to apply only to one- or two-family dwellings, townhouses, and buildings or structures containing any Group R occupancy. The provision in question has been re-numbered as subdivision (h) and revised to apply only to one- or two-family dwellings, townhouses, and buildings or structures containing any Group R occupancy.

COMMENT 7: Code enforcement officials are not permitted to enter private properties and, therefore, the provision authorizing a Code Enforcement Official to limit the quantity of sparkling devices at a given location (subdivision (f) in the rule as originally proposed) will be impossible to enforce.

DOS RESPONSE TO COMMENT 7: DOS disagrees. Code Enforcement Officials may enter private property under appropriate circumstances, including entry with consent of the owner or entry pursuant to a court-issued search warrant. As stated in DOS Response to Comment 6, above, the provision in question has been re-numbered as subdivision (h) and revised to apply only to one- or two-family dwellings, townhouses, and buildings or structures containing any Group R occupancy.

COMMENT 8: The provisions relating to sparkling device displays (subdivision (g) in the rule as originally proposed), supervision of sparkling device displays (subdivision (h) in the rule as originally proposed), and removal and disposal of sparkling devices that are being manufactured, stored, handled, stored or used in violation of any provision of new section (subdivision (i) in the rule as originally proposed) are not needed because the requirements for public fireworks displays (such as the large Macy’s Fireworks show) should already be covered in current law, even if sparkling devices happen to be used in such public fireworks displays.

DOS RESPONSE TO COMMENT 8: Former subdivisions (g), (h), and (i) were based on provisions in the International Fire Code (IFC). Upon further review of those IFC provisions, DOS has determined (1) that the IFC provisions are intended to apply to explosives, magazines, blasting, fireworks displays, or pyrotechnic special effect operations and (2) that application of these IFC provisions to sparking devices is unnecessary. Former subdivisions (g), (h), (i) have been deleted.

COMMENT 9: How is the code enforcement official to know that a sparkling device display is taking place? How will former subdivision (g) be enforceable?

DOS RESPONSE TO COMMENT 9: For the reasons stated in DOS Response to Comment 8, above, former subdivision (g) has been deleted.

COMMENT 10: Regarding the provision requiring the report of accidents to the code enforcement official (subdivision (j) of the rule as originally proposed): What will the code enforcement official do with this information? Will there be a reporting process, a central database and what will be done with the collected information? Who is charged with reporting the incidents? How is this to be accomplished in jurisdictions where there are only part time code officials who will not be on duty?

DOS RESPONSE TO COMMENT 10: Former subdivision (j) was based on a provision in the International Fire Code (IFC). Upon further review of that IFC provision, DOS has determined (1) that the IFC’s provision requiring the reporting of accidents to the code enforcement official is indented to apply to accidents involving explosives, explosive materials, and fireworks and (2) that application of a provision requiring the reporting of accidents involving sparkling devices to the code enforcement official is unnecessary. Former subdivision (j) has been deleted.

COMMENT 11: The provision requiring the report of accidents to the code enforcement official (subdivision (j) of the rule as originally proposed) is applicable to manufacturing operations and should be moved to the subdivision relating to removal and disposal of sparkling devices (subdivision (i) of the rule as originally proposed).

DOS RESPONSE TO COMMENT 11: For the reasons stated in DOS Response to Comment 10, above, former subdivision (j) has been deleted.

COMMENT 12: The provision requiring manufacturers of sparkling devices to maintain records of chemicals, chemical compounds and mixtures as required by the U.S. Department of Labor regulations (subdivision (k) of the rule as originally proposed) is applicable to manufacturing operations and should be moved to the subdivision relating to removal and disposal of sparkling devices (former subdivision (i)).

DOS RESPONSE TO COMMENT 12: DOS disagrees. The intent of this provision is to require manufacturers to maintain records required by the U.S. Department of Labor. This provision has been re-numbered as new subdivision (i), has been re-captioned as “Records”, and has been retained without other change.

COMMENT 13: A commenter suggested that the provision authorizing the code enforcement official to discontinue the use of sparking devices when a hazardous condition exists (subdivision (m) of the rule as originally proposed) should be revised to prohibit the use of sparkling devices in any Fire Danger Rating Area as shown on the map published by NY State Department of Environmental Conservation (http://www.dec.ny.gov/lands/68329.html) is rated by DEC as being subject to “Extreme (Red)” fire danger conditions or in any area designated by DEC as being subject to “Red Flag” conditions.

DOS RESPONSE TO COMMENT 13: DOS agrees that this revision would provide for a more objective, scientifically based determination of conditions that would require the discontinuance of the use of sparkling devices. The provision in question has been re-numbered as subdivision (d), and revised in a manner similar to that suggested by the commenter, in the rule as adopted.

COMMENT 14: The provision relating to storage of sparkling devices (subdivision (n) of the rule as originally proposed) should be moved to the beginning of the rule as it would cover the full regulatory guidelines that are needed to be compliant with the recently passed legislation and promote safety.

DOS RESPONSE TO COMMENT 14: DOS has re-organized the order of the subdivisions in new Section 1228.3 to improve clarity and enhance enforceability of new Section 1228.3. For example, the provision relating to storage of sparkling devices has been re-numbered as subdivision (g) of the rule as adopted.

COMMENT 15: Is it my understanding that the proposed rule allows for sparking devices is specifically targeting the use within cities and counties but not town and villages. Is this rule intended to require cities and counties to pass a local law, before the local municipality passes their local law, if municipalities within that county or city would like to enforce the proposed law on sparking devices?

DOS RESPONSE TO COMMENT 15: This rule does not purport to provide the mechanism for the legalization of sparkling devices in any county, city, town or village. Those issues are specified in the underlying legislation (Chapter 477 of the Laws of 2014).

COMMENT 16: A commenter asked if there is a “statistically significant marker” that warrants consideration of the proposed rules for sparkling devices, of if this rule reflects an arbitrary decision to control yet another minute aspect of public behavior “for our own good.”

DOS RESPONSE TO COMMENT 16: The Legislature has enacted a law that allows cities and counties to legalize the use of sparkling devices. This rule amends the Uniform Code to add provisions relating to buildings and structures where sparkling devices are manufactured, stored, sold or used and to add other provisions intended to reduce the risk of fire associated with the manufacture, storage, sale or use of sparkling devices.

Description of Changes made in the Rule as a result of Comments

This rule will add a new Section 1228.3 to Part 1228 of Title 19 NYCRR. The following changes have been made to the rule as originally proposed:

Subdivision (a) – Scope: No change.

Subdivision (b) - Definitions: The definition of the term “sparkling devices displays” (originally in paragraph 10 of this subdivision) has been deleted.

Subdivision (c) – Other applicable laws: No change.

Former subdivision (d) - Use of Sparkling Devices in or near Buildings or Structures: Former subdivision (d) has been re-numbered as subdivision (e); re-captioned as “Use of ground-based or hand-held devices in or near buildings;” and revised to provide that the provisions of this subdivision apply only to ground-based or hand-held devices, and not to “novelties.”

Former subdivision (e) – Retail sales: Former subdivision (e) has been re-numbered as subdivision (f) and revised by (1) removing the prohibition against allowing members of the public to be able to handle or touch sparkling devices while they are on display for retail sale, and (2) adding a provision making retail sales subject to the provisions of NFPA 1124.

Former subdivision (f) – Limit on quantity: Former subdivision (f) has been re-numbered as subdivision (h) and revised to provide that the code enforcement official’s authority to limit the quantity of sparkling devices to be kept or stored at a location applies only to one- and two-family dwellings, townhouses, and buildings containing a Group R occupancy.

Former subdivision (g) – Sparkling device displays: Former subdivision (g), which would have added provisions relating to sparkling device displays, has been deleted.

Former subdivision (h) – Supervision: Former subdivision (h), which would have authorized the code enforcement official to require supervision of any sparkling device display or any other use of sparkling devices, has been deleted.

Former subdivision (i) – Removal and disposal: Former subdivision (i), which would have added provisions relating to the removal and disposal of sparkling devises, has been deleted.

Former subdivision (j) – Report of accidents: Former subdivision (j), which would have required the person using sparkling devices to report any accident involving the use of sparkling devices and resulting in death, personal injury or property damage to the code enforcement official, has been deleted.

Former subdivision (k) - Hazard communication: Former subdivision (k) has been re-numbered as subdivision (i) and re-captioned as “Records”, with no other change.

Former subdivision (l) - Manufacture, assembly, and testing of sparkling devices: Former subdivision (l) has been re-numbered as subdivision (j), with no other change.

Former subdivision (m) - Hazardous conditions: Former subdivision (m), which would have required discontinuance of the use of sparkling devices when the code enforcement official or the operator believed that a hazardous condition existed, has been re-numbered as subdivision (d) and revised to provide for a more objective means of determining when “hazardous conditions” warrant suspension of the use of sparkling devices, viz., when the Department of Environmental Conservation has designated the applicable fire danger rating area to be rated “Extreme (Red)” or the subject location to be subject to “Red Flag” conditions.

Former subdivision (n) - Storage of sparkling devices: Former subdivision (n) has been re-numbered as subdivision (g), with no other change.

Former subdivision (o) – Incorporation by reference: Former subdivision (o) has been re-numbered as subdivision (k), with no other change.