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Revised Regulatory Impact Statement Summary 6 NYCRR Parts 248 and 200

In 2006, the Legislature passed and the Governor enacted the "Diesel Emissions Reduction Act of 2006" (DERA). The legislation charged the Department with implementing a regulatory program that would require the use of ULSD fuel and BART for any diesel powered heavy duty vehicle (HDV) that is owned by, operated by or on behalf of, or leased by a state agency and state and regional public authority. The Department subsequently promulgated Part 248, effective as of July 30, 2009, to implement DERA. The Department's initial part 248 regulation included within the program requirements trucks owned by sub-contractors (to contractors) that provided services to State agencies and authorities.

That aspect of the regulation was subsequently challenged in a CPLR Article 78 proceeding. Although Supreme Court (Saratoga County) initially upheld the regulations, the Appellate Division reversed, finding that the Legislature "did not intend to impose DERA's requirements on vehicles other than those used by prime contractors under direct contract with State agencies and public authorities." Matter of N.Y. Constr. Material Ass'n v. DEC, 83 A.D.2d 1323, 1328 (3d Dep't 2011); see also Riccelli Enterprises, Inc. v. Grannis, 30 Misc. 3d 573, 579 (Sup. Ct. Onondaga Co. 2010) (regulations are 'ultra vires'... due to the improper expansion of the meaning of the term "on behalf of" in the regulations).

Additionally, the Legislature amended ECL section 19-0323 in calendar years 2010, 2011 and 2012, in three ways: (i) to provide an extended time frame until December 31, 2013 for all applicable vehicles to comply with the DERA BART requirement; (ii) to allow for a waiver of the DERA requirements to otherwise applicable vehicles that are permanently taken out of service in New York State on or before December 31, 2013; and (iii) to eliminate the 33 percent and 66 percent phase-in deadlines for BART compliance of December 31, 2008 and December 31, 2009 respectively. 'See' L.2010, ch. 59, pt. C. Section 1, Enacted Budget SFY 2011-2012, S2810-C/A 4010-C, Part BB and Enacted Budget SFY 2012-2013, S6258-D/A 9058-D, Part EE. This proposed rulemaking is being revised as a result of the extension of the compliance deadline included in the state budget bill passed in March 2012. Although the Legislature extended the BART compliance date and added the waiver provision, it nevertheless maintained the retrofit requirement for existing vehicles, making plain its continued interest in reducing emissions from heavy duty vehicles owned by or operated on behalf of the State. The Department is seeking comments on the revision to the compliance deadline.

Although the Legislature extended the BART compliance date and added the waiver provision, it nevertheless maintained the retrofit requirement for existing vehicles, making plain its continued interest in reducing emissions from heavy duty vehicles owned by or operated on behalf of the State.

The purpose of this rulemaking is to make Part 248 consistent with both the court decisions in Matter of N.Y. Constr. Material Ass'n and Riccelli Enterprises, Inc. and the amendments to DERA signed into law in 2010, 2011 and 2012.

These revisions to Part 248 would make it consistent with the amendments to ECL section 19-0323 and recent court decisions by changing the definition of "prime contractor", "on behalf of", and "regulated entity work"; and further by changing the existing BART compliance schedule and adding a useful life waiver provision. "Prime contractor" will mean a person or entity that contracts directly with the regulated entity to perform regulated entity work and who is responsible for the completion of the contract with the regulated entity. As noted, recent court decisions require the Department to exclude subcontractors from applicability. This rulemaking will revise the BART compliance schedule and include a useful life waiver provision as permitted by ECL section 19-0323. The Department will include a useful life waiver provision which allows the Department to issue a waiver of the requirements of this Part to a BART regulated entity or contractor upon receipt of request from such entity or contractor provided that such vehicle will be permanently taken out of service in New York State on or before December 31, 2013. The addition of a useful life waiver will provide additional regulatory flexibility to subject entities. The Department is also proposing several minor clarifications to the BART waiver application requirements, the vehicle and equipment labeling requirements, and the reporting and record keeping requirements. These clarifications should assist the regulated entity and contractor in complying with the Part 248 requirements.

The Department has continued to evaluate the costs of various retrofit devices and recently assessed several sources to update cost information. Included in this analysis was actual cost data obtained by the Department from certain state agencies. The Department also considered cost data included in the October 2009 report entitled "Retrofitting Emission Controls for Diesel Powered Vehicles," issued by the Manufacturers of Emission Controls Association (MECA). A more detailed discussion relating to costs can be found in the Regulatory Impact Statement. Prime contractors will incur costs associated with the purchase of the retrofit device and administrative costs similar to many of those costs for state agencies and public authorities. Only the contractor's vehicles which are actually used on behalf of the state agency/public authority work (not necessarily the contractor's entire fleet) and while in use on the state project whether on or off state property are subject to the Part 248 requirements. Subcontractors will no longer be required to comply with DERA and are therefore no longer required to incur costs for this regulation. No additional costs are expected to be incurred by the Department for the administration of the proposed revision to Part 248.

It is important to note that this rulemaking, which proposes to maintain existing requirements except as to subcontractors and to the extent waived (as allowed under the 2010 DERA amendments), would if anything have a positive direct economic effect as compared to the effect that was anticipated from the existing requirements under Part 248. Indeed, although Part 248 would remain applicable to those heavy duty vehicles used by or on behalf of a state agency, state public authority, or regional public authority, requirements as to subcontractors would be removed. Of course, prime contractors like state government entities, would remain subject to both the ULSD requirements effective February 12, 2007 and the BART requirements.

As noted in the 2009 rulemaking, the population of prime contractor vehicles affected by the proposed amended regulation is unknown. As with that rulemaking, the Department remains unable to provide a specific estimate of the number of contract solicitations or awards that will occur because of the difficulty in predicting the number of affected prime contractors at this time. Additionally, the Department expects the cost impact to those affected contractors to be similar to the impacts on government entities which, in turn, may result in somewhat higher bids proposed by prime contractors on state and public authority contract work to compensate for increased costs due to these regulatory requirements. Nevertheless, this rulemaking maintains existing requirements on prime contractors and thus is not expected to have any negative impact on such prime contractors.

Because this rulemaking maintains existing requirements as to State agencies and authorities, as well as to prime contractors, the rulemaking itself would not be expected to have a negative impact on businesses or employment. Indeed, as already noted, the rulemaking proposes to remove trucks owned or operated by sub-contractors from coverage and thus, if anything, may have a positive direct impact on subcontractors.

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