Section 4038.5 of the Title 9 NYCRR.pdf

7/28/2019 Section 4038.5 of the Title 9 NYCRR.pdf

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RULE MAKINGACTIVITIES

Each rule making is identified by an I.D. No., which consistso f 1 3 c ha rac ter s. F or ex amp le, th e I. D. N o.AAM-01-96-00001-E indicates the following:

AAM -the abbreviation to identify the adopting agency01 -the State Registerissue number96 -the year 00001 -the Department of State number, assigned upon

receipt of notice.E -Emergency Rule Makingpermanent action

not intended (This character could also be: Afor Adoption; P for Proposed Rule Making; RPfor Revised Rule Making; EP for a combinedEmergency and Proposed Rule Making; EA foran Emergency Rule Making that is permanentand does not expire 90 days after filing.)

Italics contained in text denote new material. Bracketsindicate material to be deleted.

Department of Civil Service

PROPOSED RULE MAKINGNO HEARING(S) SCHEDULED

Jurisdictional Classification

I.D. No. CVS-28-13-00002-P

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

Proposed Action: Amendment of Appendix 1 of Title 4 NYCRR.

Statutory authority: Civil Service Law, section 6(1)

Subject: Jurisdictional Classification.

Purpose: To classify positions in the exempt class.

Text of proposed rule: Amend Appendix 1 of the Rules for the ClassifiedService, listing positions in the exempt class, in the Executive Departmentunder the subheading Office of General Services, by adding thereto the

positions of Deputy Director Business Services Center and Deputy Direc-tor Procurement.

Text of proposed rule and any required statements and analyses may beobtained from: Shirley LaPlante, NYS Department of Civil Service,Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: [email protected]

Data, views or arguments may be submit ted to: Ilene Lees, Counsel, NYSDepartment of Civil Service, Empire State Plaza, Agency Building 1,Albany, NY 12239, (518) 473-2624, email: [email protected]

Public comment will be received until: 45 days after publication of thisnotice.

Regulatory Impact Stat ement

A regulatory impact statement is not submitted with this notice becausethis rule is subject to a consolidated regulatory impact statement that was

previously printed under a notice of proposed rule making, I.D. No. CVS-02-13-00002-P, Issue of January 9, 2013.

Regulatory Flexi bility AnalysisA regulatory flexibility analysis is not submitted with this notice becausethis rule is subject to a consolidated regulatory flexibility analysis that was


Rural Area Flexibility AnalysisA rural area flexibility analysis is not submitted with this notice becausethis rule is subject to a consolidated rural area flexibility analysis that was


Job Impa ct StatementA job impact statement is not submitted with this notice because this ruleis subject to a consolidated job impact statement that was previously

printed under a notice of proposed rule making, I.D. No. CVS-02- 13-00002-P, Issue of January 9, 2013.

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

Jurisdictional Classification

I.D. No. CVS-28-13-00003-P

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

Proposed Action: Amendment of Appendix 1 of Title 4 NYCRR.

Statutory authority: Civil Service Law, section 6(1)

Subject: Jurisdictional Classification.

Purpose: To delete a position from and classify a position in the exemptclass.

Text of proposed rule: Amend Appendix 1 of the Rules for the ClassifiedService, listing positions in the exempt class, in the Department of Laborunder the subheading Workers' Compensation Board, by decreasing thenumber of positions of District Administrator from 8 to 7 and by addingthereto the position of Special Counsel.

Text of proposed rule and any required statements and analyses may beobtained from: Shirley LaPlante, NYS Department of Civil Service,Empire State Plaza, Agency Building 1, Albany, NY 12239, (518) 473-6598, email: [email protected]

Data, views or arguments may be submitted to: Ilene Lees, Counsel, NYSDepartment of Civil Service, Empire State Plaza, Agency Building 1,Albany, NY 12239, (518) 473-2624, email: [email protected]

Public comment will be received until: 45 days after publication of this

notice.Regulatory Impa ct Statement

A regulatory impact statement is not submitted with this notice becausethis rule is subject to a consolidated regulatory impact statement that was


Regulatory Flexi bility Analysis

A regulatory flexibility analysis is not submitted with this notice becausethis rule is subject to a consolidated regulatory flexibility analysis that was


Rural Area Flexibility Analysis

A rural area flexibility analysis is not submitted with this notice becausethis rule is subject to a consolidated rural area flexibility analysis that was

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ing guidelines utilized by Fannie Mae and Freddie Mac or servicers ownprotocols. Although mortgage loan servicers may incur some additionalcosts as a result of complying with Part 419, the overwhelming majorityof mortgage loan servicers are banks, credit unions, operating subsidiariesor affiliates of banks, large independent servicers or other financial ser-vices entities that service millions, and even billions, of dollars in loansand have the experience, resources and systems to comply with theserequirements. Of the 67 entities that have been approved for registrationor that have pending applications, only one is located in a rural area of

New York State. Of the few exempt organizations located in rural areas ofNew York, virtually all are banks or credit unions. Moreover, compliancewith the rule should improve the servicing of residential mortgage loans in

New York, including the handling of mortgage delinquencies, help preventunnecessary foreclosures and reduce consumer complaints regarding theservicing of residential mortgage loans.

Minimizing Adverse Impacts: As noted in the Costs section above,while mortgage loan servicers may incur some higher costs as a result ofcomplying with the rules, the Department does not believe that the rulewill impose any meaningful adverse economic impact upon private or

public entities in rural areas. In addition, it should be noted that Part 418,which establishes the application and financial requirements for mortgageloan servicers, authorizes the Superintendent to reduce or waive theotherwise applicable financial responsibility requirements in the case ofmortgage loans servicers that service not more than 12 mortgage loans ormore than $5,000,000 in aggregate mortgage loans in New York and which

do not collect tax or insurance payments. The Superintendent is also au-thorized to reduce or waive the financial responsibility requirements inother cases for good cause. The Department believes that this willameliorate any burden on mortgage loan servicers operating in rural areas.

Rural Area Participation: The Department issued a draft of Part 419 inDecember 2009 and held meetings with and received comments fromindustry and consumer groups following the release of the draft rule. TheDepartment also maintains continuous contact with large segments of theservicing industry though its regulation of mortgage bankers and brokersand its work in the area of foreclosure prevention. The Departmentlikewise maintains close contact with a variety of consumer groupsthrough its community outreach programs and foreclosure mitigation

programs. The Department has utilized this knowledge base in draftingthe regulation.

Job Impact Stat ement

Article 12-D of the Banking Law, as amended by the Mortgage Lend-ing Reform Law (Ch. 472, Laws of 2008), requires persons and entitieswhich engage in the business of servicing mortgage loans after July 1,2009 to be registered with the Superintendent. Part 418 of the Superinte-ndents Regulations, initially adopted on an emergency basis on July 1,2009, sets forth the application, exemption and approval procedures forregistration as a mortgage loan servicer, as well as financial responsibilityrequirements for applicants, registrants and exempted persons.

Part 419 addresses the business practices of mortgage loan servicers inconnection with their servicing of residential mortgage loans. Thus, this

part addresses the obligations of mortgage loan servicers in their com-munications, transactions and general dealings with borrowers, includingthe handling of consumer complaints and inquiries, handling of escrow

pay ment s, cre diti ng of paym ent s, char ging of fee s, loss miti gat ionprocedures and provision of payment histories and payoff statements. Thispart also imposes certain recordkeeping and reporting requirements in or-der to enable the Superintendent to monitor services conduct and prohibitscertain practices such as engaging in deceptive business practices.

Compliance with Part 419 is not expected to have a significant adverseeffect on jobs or employment activities within the mortgage loan servicingindustry. The vast majority of mortgage loan servicers are sophisticatedfinancial entities that service millions, if not billions, of dollars in loansand have the experience, resources and systems to comply with therequirements of the rule. Moreover, many of the requirements of the rulereflect derive from federal or state laws and reflect existing best industry

practices.

New York State GamingCommission

EMERGENCY

RULE MAKING

Ability of a New Owner of a Claimed Horse to Void the ClaimI.D. No. RWB-08-13-00005-E

Filing No. 680

Filing Date: 2013-06-24

Effective Date: 2013-06-24

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

Action taken: Amendment of section 4038.5 of Title 9 NYCRR.

Statutor y authorit y: Racing, Pari-Mutuel Wagering and Breeding Law,sections 103(1), 104(1), (19), 122 and 128

Finding of necessity for emergency rule: Preservation of public safetyand general welfare.

Specif ic reaso ns underl ying the findin g of necess ity: The Board hasdetermined that immediate adoption of this rule is necessary for the pres-

ervation of the public safety and general welfare and that compliance withthe requirements of subdivision 1 of Section 202 of the State Administra-tive Procedure Act would be contrary to the public interest.

Between November 2011 and March 2012, 21 thoroughbred horses inNew York State died or were euthanized while racing at Aqueduct RaceTrack. Their deaths prompted a comprehensive analysis of the circum-stances and possible causes for the deaths of these horses by the NewYork Task Force on Racehorse Health and Safety. One common aspect inthese races was the fact that the horse that broke down was often involvedin a claiming race. This rule is necessary to remove an incentive that atrainer or owner may have for entering an unsound horse in claiming racefor the purpose of racing and potentially transferring a horse without

proper regard to the horses well-being and the integrity of racing. TheBoard previously adopted an amendment to Section 4038.5 that allowedfor a claim to be voided if the horse died during the race or was euthanizedon the racetrack. The Task Force recommended this amendment beadopted on an emergency basis to more adequately remove any incentivefor racing unsound claiming horses.

Given the danger of a horse breaking down, and the safety threat pre-sented to both the jockey on the horse and the jockeys riding in closeproximity, this rule is necessary to protect the safety of human and equineathletes. Thoroughbred horses travel over the racetrack at an average speedof approximately 40 miles per hour, sometimes exceeding that average asthey sprint to the finish or sprint to gain positional advantage. An unsoundhorse racing on short rest may be forced to race beyond its limits andresult in a fatal breakdown, oftentimes in a sudden or uncontrollable

breakdown.This rule is also necessary to protect the general welfare of the horse

racing industry and the thousands of jobs that are created through it. Pub-lic confidence in both the process of racing and in pari-mutuel wageringsystem is necessary for the sport to survive, and with it the jobs and reve-nue generated in support of government. Claiming races play an essential

part of thoroughbred racing and pari-mutuel wagering. This rule is neces-sary to ensure integrity in the claiming process, and in turn ensure that thewhen a horse steps onto a race track, it doing so for the purpose of win-ning and not merely to foster a transaction.

Subject: Ability of a new owner of a claimed horse to void the claim.Purpos e: To remove the incentive to horse owners to race substandardhorses in a claiming race.

Text of emergency rule: Under subdivision (a) of Section 4038.5 of Title9 NYCRR, paragraph (3) is added and paragraph (1) is amended to read asfollows:

(1) the claim is voidable at the discretion of the new owner pursuantto the conditions stated in section [4038.18] 4038.19 of this subchapterunless the age or sex of such horse has been misrepresented, and subject tothe provisions of subdivision (b) of this section; [and]

(2) a claim shall be void for any horse that dies during a race or iseuthanized on the track following a race[.]; and

(3) a claim is voidable at the discretion of the new owner, for a pe-riod of one hour after the race is made official, for any horse that is vannedoff the track after the race.

NYS Register/July 10, 2013Rule Making Activities

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This notice is intended to serve only as a notice of emergency adoption.This agency intends to adopt the provisions of this emergency rule as a

permanent rule, having previously submitted to the Department of State anotice of proposed rule making, I.D. No. RWB-08-13-00005-E, Issue ofFebruary 20, 2013. The emergency rule will expire August 22, 2013.

Text of rule and any required statements and analyses may be obtainedfrom: John Googas, New York State Gaming Commission, One BroadwayCenter, Suite 600, Schenectady, New York 12305-2553, (518) 395-5400,email: [email protected]

Regulatory Impact Stat ement

1. Statutory authority and legislative objectives of such authority: TheNew York State Gaming Commission is authorized to promulgate theserules pursuant to Racing, Pari-Mutuel Wagering and Breeding Law sec-tions 103(1), 104(1), 104(19), 122, and 128. Under sections 103(1) and104(1), the Gaming Commission has general jurisdiction over all horseracing and pari-mutuel wagering activities in the state and the corpora-tions and associations and persons engaged therein, and is responsible forthe supervision, regulation, and administration thereof. Section 104(19)authorizes the Gaming Commission to promulgate any rules and regula-tions that it deems necessary to carry out its responsibilities. Section 122

provides that all rule-making of the former New York State Racing andWagering Board shall continue in force and effect as rule-making of theGaming Commission until duly modified or abrogated by suchcommission. Section 128 authorizes the new Gaming Commission to

promulgate regulations on an emergency basis by methods outside of stan-dard administrative procedural requirements to ensure continuity throughreadopting current emergency rules of the Gaming Commission.

2. Legislative objectives: To enable the New York State Gaming Com-

mission to preserve the integrity of pari-mutuel racing, while generatingreasonable revenue for the support of government.

3. Needs and benefits: This rulemaking is necessary to assure integrity,safety and public confidence in claiming races by removing incentives touse the claiming race process as a means of racing and transferringunsound horses. This rulemaking removes the incentive to enter anunsound horse in a claiming race with the intended goal of protecting boththe health and safety of the equine and human athlete.

All claiming horses are, in effect, offered for sale at a designated pricewithin the range of the claiming race in which they are entered by theirowners. The potential buyer of a horse in a claiming race must enter hisclaim before the race. By entering a horse in a claiming race, the owner isoffering his horse for sale to another individual.

This amendment will reduce the incidence of injuries/deaths in horseraces by changing the claiming rule to allow a successful claimant to voida claim when the horse is unable to walk off the track and must betransported or vanned off the race track. The current rule provides aregulatory mechanism by which a successful claimant may void a claim in

the event that a horse dies during the race or is euthanized on the track.Adoption of this amendment was recommended by the New York Task

Force on Racehorse Health and Safety, which recently released its reportof investigation concerning the death of 21 thoroughbred race horse be-tween November 2011 and March 2012. The report stated: The TaskForce recommends that the NYSRWB Rule 4038.5 be amended to providethat a claim is voidable, at the discretion of the claimant and within onehour of the conclusion of the race, for a horse that is vanned off the track.The report further states: The Task Force believes the NYSRWB emer-gency amendment to Rule 4038 (in April 2012) represents an improve-ment by establishing a deterrent to the willful entry of a compromisedhorse, but that it should be further amended to provide that a claim is void-able by the claimant within one hour of the conclusion of the race if thehorse is vanned off the track. The voiding of a claim should not require thedeath of a horse.

4. Costs:(a) Costs to regulated parties for the implementation of and continuing

compliance with the rule: None.

(b) Costs to the agency, the state and local governments for theimplementation and continuation of the rule: None.

(c) The information, including the source(s) of such information andthe methodology upon which the cost analysis is based: Commission staffreviewed the cost factors and determined that the rule can be implementedusing the existing system for voiding a claim, and no additional costs will

be added.(d) Where an agency finds that it cannot provide a statement of costs, a

statement setting forth the agencys best estimate, which shall indicate theinformation and methodology upon which the estimate is based and thereason(s) why a complete cost statement cannot be provided. Notapplicable.

5. Local government mandates: None. The New York State GamingCommission is the only governmental entity authorized to regulate pari-mutuel harness racing activities.

6. Paperwork: There will be no additional paperwork. The process willrely on the existing administrative forms and processes for voiding a claim.

7. Duplication: None.8. Alternatives: Proposals include allowing the claimant to void a claim

immediately after a race for no reason or giving race secretaries authorityto include the above condition in claiming races. These alternatives wereconsidered impractical.

The Commission also considered a rule to required the stewards toconsult with a designated veterinarian before voiding a claim for a horsethat has suffered a catastrophic injury or death before it was unsaddled fol-

lowing its race. This alternative was rejected in favor of the proposed rule,which is a bright line threshold rather than an arguably judgmentaldetermination.

9. Federal standards: None.10. Compliance schedule: As an emergency rule, the amendments can

be implemented immediately upon submission to the Department of State.

Regulatory Flexibi lity Analysis , Rural Area Flexibil ity Analysis and JobImpact Stat ement

As is evident by the nature of this rulemaking, this proposal affects thevoiding of claims when a horse is injured during a race and requirestransportation off the track and will not have an adverse affect on jobs orsmall businesses. The narrow economic impact of this amendment islimited to those instances where a claim on a thoroughbred race horse isvoidable if the horse is unable to walk off the race track and is transportedoff the track. The Board previously adopted a similar rule that allowed aclaim to be voided if the horse dies on the track or is euthanized. Sincethat rule was adopted as an emergency rule in April 2012, there has been

only one instance of a claimed horse dying on the track. The indirect eco-nomic impact of this rule is that it will discourage horse owners fromentering unsound horses in claiming races. The Board believes that thislimited economic impact will not adversely impact rural areas, jobs, small

businesses or local governments and does not require a Regulatory Flex-ibility Statement, Rural Area Flexibility Statement or Job Impact State-ment because it will not impose an adverse impact on rural areas, nor willit affect jobs. This amendment is intended to reduce an incentive to racean unsound horse. A Regulatory Flexibility Statement and a Rural AreaFlexibility Statement are not required because the rule does not adverselyaffect small business, local governments, public entities, private entities,or jobs in rural areas. There will be no impact for reporting, recordkeep-ing, or other compliance requirements on public or private entities in ruralareas. A Jobs Impact Statement is not required because this rule amend-ment will not adversely impact jobs. This rulemaking does not impactupon a small business pursuant to such definition in the State Administra-tive Procedure Act 102 (8) nor does it negatively affect employment.The proposal will not impose adverse economic impact on reporting,recordkeeping or other compliance requirements on small businesses inrural or urban areas nor on employment opportunities. The rule does notimpose any technological changes on the industry either.

Assessment of Public Comment

The agency received no public comment.

Department of Health

EMERGENCY

RULE MAKING

Personal Care Services Program (PCSP) and Consumer DirectedPersonal Assistance Program (CDPAP)

I.D. No. HLT-28-13-00001-E

Filing No. 671

Filing Date: 2013-06-19

Effective Date: 2013-06-19

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

Actio n take n: Amendment of sections 505.14 and 505.28 of Title 18NYCRR.

Statu tory autho rity: Public Health Law, section 201(1)(v); and SocialServices Law, sections 363-a(2), 365-a(2)(e) and 365-f

Finding of necessity for emergency rule: Preservation of public health.

NYS Register/July 10, 2013 Rule Making Activities

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Section 4038.5 of the Title 9 NYCRR.pdf

Documents

Transcript of Section 4038.5 of the Title 9 NYCRR.pdf