Title 43: Mayor

Chapter 1: Uniform Rules and Regulations for All City Agencies Pertaining to the Administration of the Freedom of Information Law

§ 1-01 Scope.

(a) These Rules and Regulations shall govern the procedures by which records made available for public inspection pursuant to the Freedom of Information Law (Public Officers Law, Art. 6) may be obtained from a city agency.
  1. Agency personnel shall furnish to the public the information and records required to be made available by the Freedom of Information Law, as well as records otherwise available by law. Any conflicts among laws governing public access to records shall be construed in favor of the widest possible availability of public records.

§ 1-02 Designation of Records Access Officer.

The head or governing body of each agency shall be responsible for insuring compliance with these Rules and Regulations and shall designate one or more persons as records access officer or officers to coordinate the agency’s response to public requests for inspection and copying of records. The designation shall include the name, specific job title, telephone number and business address of such access officer. The designation of a records access officer or officers shall not be construed to prohibit other agency officers and employees who have been authorized previously to make records or information available to the public from continuing to do so.

§ 1-03 Responsibilities of Records Access Officer.

Each agency’s records access officer shall have the following responsibilities:

  1. He shall maintain a reasonably detailed current subject matter list of all records in the possession of the agency, whether or not such records are available for inspection and copying pursuant to the Freedom of Information Law. The list shall be of sufficient detail to permit identification by the public of categories of records. The subject matter list shall be updated not less than twice per year and the date of the most recent revision of the list shall appear on its first page.
  2. He shall assist members of the public in identifying requested records.
  3. When requested records are located, he shall either make such records available for inspection or deny access to such records in whole or in part, with a written statement of the grounds for denial of access.
  4. Upon request for copies of records, he shall either arrange to make copies available on payment of or offer to pay the established fee or shall permit the requesting party to copy the records using photocopying equipment on agency premises.
  5. He shall, upon request, certify that a copy of a record is a true copy.
  6. Upon failure to locate records, he shall state in writing that the agency is not the custodian of such records or that the records cannot be found after diligent search.
  7. He shall maintain the records required to be maintained by subdivisions (b) and (f) of 43 RCNY § 1-05.

§ 1-04 Hours and Location.

(a) Each agency shall designate a location or locations where records shall be available for public inspection and copying.
  1. Each agency shall accept requests for public access to records and shall produce records during the agency’s regular business hours. If an agency does not have regular business hours, it shall establish a written procedure by which a member of the public may arrange an appointment to inspect and copy records. The procedure shall specify the name, job title, telephone number and business address of the person to be contacted for the purpose of making such appointments.

§ 1-05 Procedure for Making Requests; Responses to Requests.

(a) Any request to inspect or copy records shall be made in writing and addressed to the records access officer of the appropriate agency. The request shall reasonably describe the record or records sought and shall, whenever possible, supply information regarding dates, file designations or other information which will enable the records access officer to identify the records sought.
  1. Upon receipt of a request, the records access officer shall forward the request to the division of the agency having custody of the records requested. The records access officer shall retain a file copy of each request received by him and shall maintain or cause to be maintained a record showing the date on which the request was received, the division to which it was forwarded and the date of forwarding.
  2. Within five business days of receipt of a request, the records access officer shall respond to the request:

   (1) If the agency determines that the request should be granted, the records access officer shall so notify the requesting party in a writing which states the time and place at which the requested records may be inspected and the procedures and fees for copying of records.

   (2) If the agency determines that the requested records are exempt from disclosure under the terms of the Freedom of Information Law and that the request should be denied, the records access officer shall so notify the requesting party in a writing which states the grounds for the denial.

   (3) If a request does not adequately describe the records sought, the records access officer shall notify the requesting party in writing that his request has been denied, stating the reasons why the request does not meet the requirements of this section and extending to the requesting party an opportunity to confer with the records access officer in order to attempt to reformulate the request in a manner that will enable the agency to identify the records sought.

   (4) If a requested record does not exist, has been destroyed or otherwise disposed of, or is in the possession, custody or control of another agency, the records access officer shall so notify the requesting party in writing. In the case of records which the records access officer believes to be in the possession, custody or control of another agency, he shall state in the writing the agency to which the request should be addressed.

   (5) If the agency determines that a request should be granted in part and denied in part, the records access officer shall so notify the requesting party in a writing which sets forth the information required by subparagraphs (1), (2), (3) and (4) of this subdivision (c), as applicable.

   (6) Each writing denying a request in whole or in part shall inform the requesting party of his right to appeal the determination of the agency within thirty days and shall state the name of the person or body designated in the agency to hear such appeals. Such person or body shall be identified by name, title, business address and telephone number.

  1. If, because of unusual circumstances, an agency is unable to determine within five business days whether to grant, deny or otherwise respond to a request for inspection and copying, the records access officer shall, within such five day period, acknowledge receipt of the request in writing to the requesting party, stating the approximate date, not to exceed ten business days from the date of the acknowledgement, by which a determination with respect to the request will be made. If the agency does not make a determination with respect to the request within ten business days from the date of such acknowledgement, the request may be deemed denied and an appeal may be taken to the person or body designated in the agency to hear appeals. As used in this subdivision (d), “unusual circumstances” means:

   (1) The need to search for and collect the requested records from facilities or offices that are separate from the office processing the request; or

   (2) The need to search for, collect, examine and evaluate a voluminous amount of separate and distinct records which are demanded in a single request; or

   (3) The need for consultation, which shall be conducted with all practicable speed, with another agency having a substantial interest in the determination of the request or between two or more divisions or departments of an agency having a substantial subject matter interest therein; or

   (4) Any other circumstances in which the agency is unable, by the exercise of due diligence, and acting in good faith, to comply with the time limits set forth in this sub- division.

  1. To prevent unwarranted invasions of personal privacy, an agency, in making records available for inspection and copying, may delete identifying details or may withhold records otherwise available, if deletion of identifying details is impracticable or will not, in fact, prevent an unwarranted invasion of the privacy of the person to whom the record refers. An unwarranted invasion of privacy includes, but is not limited to:

   (1) Disclosure of employment, medical or credit histories or personal references of applicants for employment; or

   (2) Disclosure of items involving the medical or personal records of a client or patient in a medical facility; or

   (3) Sale or release of lists of names and addresses if such lists would be used for commercial or fund-raising purposes; or

   (4) Disclosure of information of a personal nature when disclosure would result in economic or personal hardship to the subject party and such information is not relevant to the work of the agency requesting or maintaining it; or

   (5) Disclosure of information of a personal nature reported in confidence to an agency requesting or maintaining it and which is not relevant to the ordinary work of such agency.

  1. The records access officer shall retain a file copy of each writing granting, denying or acknowledging a request pursuant to subdivision (d) of this section and shall promptly forward to the Law Department a copy of each denial.

§ 1-06 Procedures for Appeals.

(a) The head or governing body of each agency shall hear appeals or shall designate a person or body to hear appeals (an "appeals officer") from denials of requests by a records access officer. No records access officer shall also serve as an appeals officer.
  1. When a request for inspection has been denied in writing in whole, or in part by a records access officer, the requesting party shall have thirty days after receipt of the denial within which to appeal. An appeal shall be in writing, addressed to the denying agency’s appeals officer, and shall include the name of the records access officer who denied the request, the date of the request, the date of the denial, the records which were the subject of the request and the name and address of the appellant.
  2. Each appeals officer shall transmit to the Law Department and the Committee on Open Government, Department of State, 162 Washington Avenue, Albany, N.Y. 12231, copies of all appeals upon their receipt.
  3. Within ten business days from the date of actual receipt of an appeal, the appeals officer shall make a written determination either affirming or reversing the denial and shall transmit copies of his or its determination to the appellant, the Law Department and the Committee on Open Government. Determinations affirming denials shall state the grounds for withholding of the requested records and that judicial review of the denial may be obtained in a proceeding under Article 78 of the Civil Practice Law and Rules commenced within four months after determination of the appeal.

§ 1-07 Fees.

Except when a different fee is otherwise prescribed by law:

  1. Each agency shall charge a fee for copying of records equal to the actual reproduction cost, which is the average unit cost for copying of records, excluding fixed costs of the agency, such as operators’ salaries; provided that, in no case shall the fee charged for copying exceed 25 cents per page for photocopies not exceeding 9 by 14 inches in size.
  2. No fee shall be charged for the search for records, the inspection of records or for any certification made pursuant to these Rules and Regulations.
  3. If an agency does not have operational photocopying equipment, the agency may either arrange for the production of photocopies outside the agency or prepare a transcript of requested records upon request. A transcript prepared by the agency may be either typed or handwritten and the persons requesting the records may be charged for the clerical time involved in making the transcript. Photocopies obtained by agencies which do not have operational photocopying equipment shall be charged to the requesting party at the same rate as that paid by the agency to the person or firm which made the photocopies.
  4. Payment for copying shall be made by check or money order payable to the City of New York and shall be made upon delivery of the copies to the person requesting them. Where the anticipated fee chargeable under this section exceeds $25, an advance deposit of 25 percent of the anticipated fee or $25, whichever is greater, may be required. Where a requesting party has previously failed to pay a fee under this section, payment of any past-due fees and an advance deposit of the full amount of the anticipated fee may be required.

§ 1-08 Public Notice; Promulgation of Rules and Regulations by City Agencies.

(a) Each agency shall publicize by posting in a conspicuous location:

   (1) the location or locations where records shall be made available for inspection and copying;

   (2) the hours during which records may be inspected and copied or the procedures for requesting an appointment to inspect and copy;

   (3) the procedures for requesting and inspecting records and the procedures and fees for copying;

   (4) the name, title, business address and telephone number of the designated records access officer or officers; and

   (5) the procedures for appeals and the name, title and business address of the agency’s appeals officer.

  1. Each agency shall forthwith submit for publication in the City Record notice of the hours when records are available for inspection and copying, the location or locations where records may be inspected and copied, the fees for copying, and the name, title, business address and telephone number of the person(s) designated to serve as records access officer(s) and of the person or body designated to serve as appeals officer. Notice of any change in the above information shall be published as soon as practicable in the City Record.
  2. In addition to the matters required to be published pursuant to subdivision (b) of this section, each agency may, after consultation with the Law Department, promulgate such additional rules and regulations as may be necessary to effectuate the purpose of these Rules and Regulations; provided that any such agency rules and regulations must be consistent with the Freedom of Information Law, the applicable Rules and Regulations of the Committee on Open Government and the Rules and Regulations set forth herein. Such additional rules and regulations may provide where appropriate for the safeguarding of records during inspection and copying.

§ 1-09 Removal of Records.

In no case shall an agency permit removal of agency records from agency premises by a requesting party.

§ 1-10 Severability.

If any provision of these Rules and Regulations or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such determination shall not affect or impair the validity of the other provisions of these Rules and Regulations or the application thereof to other persons and circumstances.

Chapter 2: Percent For Art Law Procedures

§ 2-01 Definitions.

Agency. “Agency” means a city, county, borough, or other office, position, administration, department, division, bureau, board or commission, or a corporation, institution or agency of government, the expenses of which are paid in whole or in part from the city treasury.

Architect. “Architect” means the professional, whether a city employee, or a consultant, responsible for the design of an eligible project.

Art allocation. “Art allocation” means the dollar amount of the budget of an eligible project available for expenditure for works of art, calculated as follows:

  1. Not less than 1 percent of the first twenty million dollars ($20,000,000) of capital funds appropriated in the city capital budget for an eligible project, not including funds appropriated for the acquisition of real property; plus,
  2. Not less than 1/2 of 1 percent of the capital funds in excess of the first twenty million dollars ($20,000,000) appropriated in the city capital budget for such eligible project, not including funds appropriated for the acquisition of real property; provided, however, that such allocation will be recalculated if changes in the project scope prior to the selection of works of art result in a change of 15 percent or more of the capital funds originally appropriated in the city capital budget for such eligible project; and provided further, however, that in no case shall § 224 of the Charter require the expenditure of more than four hundred thousand dollars ($400,000) for works of art for any one eligible project, not more than one and one-half million dollars ($1,500,000) for works of art in any one fiscal year. This allocation may be used for, but is not limited to, the acquisition of existing works of art, the commissioning and acquisition of new works of art, the restoring or refurbishing of existing works of art, the removal of works of art to an eligible project from another site, and/or the installation of works of art at the site of an eligible project.

Art Commission. “Art Commission” means the body created pursuant to Chapter 37 of the Charter.

Commissioner. “Commissioner” means the Commissioner of the Department of Cultural Affairs.

Design agency. “Design agency” means the city agency responsible for the preparation of the design of a project.

Director. “Director” means the director of the Mayor’s Office of Construction or its successor.

Eligible project. “Eligible project” means a capital project for which capital funds are appropriated by the city, and which involves the construction or substantial reconstruction of a city-owned building or structure, the intended use of which requires that it be accessible to the public generally or to members of the public participating in, requiring or receiving programs, services or benefits provided thereat. Buildings or structures within this category include, but shall not be limited to, office buildings, buildings designed for recreational purposes, police precinct houses, fire houses, schools, prisons and detention centers, hospitals and clinics, passenger terminals, shelters, libraries, community centers and court buildings.

Panel. “Panel” means an advisory panel as provided in 43 RCNY § 2-03.

Substantial reconstruction. “Substantial reconstruction” means a capital project in which at least two of the major systems [;electrical, HVAC (heating, ventilating and air conditioning), or plumbing]; of a building are replaced and general construction work, including but not limited to new flooring, ceilings, partitions, windows, affects at least 80 percent of the building’s floor area.

Work(s) of art. “Work(s) of art” means all forms of visual arts conceived in any medium, material or combination thereof.

§ 2-02 Applicability.

These Regulations apply to projects listed in the city’s capital budget and include each line project and each project of a multi-project effort generally described in a lump sum budget line. Individual projects including multi-year projects, which are part of a major improvement program or betterment at a specific site may be subject to these Rules as set forth below.

§ 2-03 Panel.

(a) Membership and organization.

   (1) For each eligible project, the Commissioner will convene a panel consisting of:

      (i) the Commissioner or his/her designee;

      (ii) one representative of the city agency having jurisdiction over the eligible project upon its completion, if other than the Department of Cultural Affairs (such representative shall not be the Architect);

      (iii) one representative of the Design agency, if other than (ii) above (such representative shall not be the Architect); and,

      (iv) three representatives of the public generally recognized as knowledgeable in the field of public art, and selected by the Commissioner, at least one of whom shall reside in or maintain a place of business in the borough in which the project is located. If the Department of Cultural Affairs is the agency referred to in both (ii) and (iii) above, then four such representatives of the public, selected by the Commissioner.

   (2) Each member shall have one vote; except, in the event of a tie vote by the members, the Chairperson shall have two votes.

   (3) A majority of the votes eligible to be cast shall constitute a quorum to do business. Any action taken by the Panel shall require the assent of a majority of the votes present.

   (4) One representative of the Art Commission and one representative or the Director will be non-voting ex officio members of each panel and will not be counted as part of the quorum.

   (5) The Commissioner or his/her designee shall serve as Chairperson of the Panel.

   (6) The Chairperson may invite other knowledgeable persons to address the Panel but they shall not have a vote.

  1. Duties. Upon reviewing the scope of each eligible project and any reports, comments or recommendations of the Architect and the agencies involved in its construction, after due deliberation, and following full consultation with the Architect, the Panel shall inform the Design Agency in writing of its recommendations as follows:

   (1) the nature of work(s) of art to be considered for the eligible project;

   (2) if new work(s) of art are to be commissioned, then the names of artists to be considered to create the work(s) of art or the manner to be used to select an artist, as through a competition, for example;

   (3) if work(s) of art already in existence are to be used, then specific art works or works of suggested artists shall be recommended;

   (4) other suggestions for the use of the art allocation, such as refurbishing or restoring existing work(s) of art located at the site or to be relocated to the site.

§ 2-04 Procedures.

(a) Upon the initiation of design of an eligible project in accordance with § 219(b) of the Charter, the Design Agency shall notify the Commissioner in writing of the following:

   (1) scope of the project;

   (2) budget for the project;

   (3) time schedule for the project; and

   (4) the Architect’s name and address.

  1. The duties of the panel shall be performed as part of the eligible project’s design phase but, in no event shall they interfere with the project’s schedule.
  2. Panels shall be convened by the Commissioner in consultation with the Design Agency, so as to expeditiously process eligible projects.
  3. The Commissioner will keep a list of the eligible projects submitted, will establish a schedule for their consideration by a panel, will appoint the three (or four, if required hereby) panel members to each panel representing the public, will notify all members of the time and place of each panel meeting, and prior to each such meeting will distribute materials for consideration. If necessary, a panel may be scheduled to convene more than once during its review of an eligible project, as for example, to visit the site of the eligible project, or to have additional opportunities to confer with the Architect and/or Design Agency.
  4. The Commissioner will give reasonable advance notification of the intention to include works of art in an eligible project to the appropriate district council members, borough president and chairperson of the community board of the district in which the project is located, in writing, at the time the panel to consider such project is appointed. The notification shall include the time and place of such panel meeting(s).
  5. Submissions to a panel shall be made through the Commissioner by the Design Agency. The contract or agreement with the Architect (if the Architect is a consultant to the Design Agency) will provide that the Architect will consult with, and cooperate with, the panel, in carrying out the requirements of § 224 of the charter, and will prepare all other necessary data, drawings and plans to be presented to and considered by the panel.
  6. Not later than ten (10) business days prior to the first date a panel is scheduled to convene to consider an eligible project, the Design Agency, in consultation with the Architect, shall submit a statement, in writing, to the Commissioner, which shall include:

   (1) description and scope of the eligible project;

   (2) the amount of the art allocation;

   (3) suggestions as to the nature and types of works of art to be included in the eligible project and to be paid out of the art allocation; and

   (4) suggested works of art already existing to be acquired and/or suggested artists to execute the works of art.

  1. The Commissioner shall distribute the statement to the members of the panel prior to the meeting.
  2. At the panel meeting(s), the Architect will be present to discuss the eligible project with the panel members and respond to questions and comments. Following full discussion and upon a majority vote, the panel will render its recommendations, including specific recommendations regarding work(s) of art and artists. For any eligible project the Architect may request and the panel may recommend that the art allocation be spent on restoring or refurbishing existing work(s) of art for the site; or the removal of works of art to the eligible project from another site; or any other alternative recommendations for the use of the art allocation.
  3. Within two weeks after the panel’s final meeting, the Commissioner will forward the panel’s written recommendations, in accordance with § 203(b) above, to the Design Agency to be used in the Architect’s preparation of initial designs for the eligible project, with copies to the members of the panel and to those persons referred to in 43 RCNY § 2-04(e) above.

§ 2-05 Eligibility and Exemptions.

(a) In the scope of each capital project, the Design Agency shall specifically state, either, that:

   (1) the project is an eligible project as defined in § 224 of the Charter; or

   (2) the project is not an eligible project.

  1. The Mayor may exempt capital projects from the provisions of § 224 of the Charter if in his sole judgment the inclusion of works of art as provided thereby would be inappropriate.
  2. If any city agency takes issue with the finding that a project is or is not an eligible project, the matter shall be referred to the Director, whose decision will be final.

§ 2-06 Project Eligibility Monitoring.

(a) Each capital budget request form ("CB Form III") submitted to the Office of Management and Budget ("OMB") shall have indicated thereon that such project either is or is not an eligible project, or that at such stage of planning, eligibility cannot yet be determined.
  1. OMB shall submit a set of all CB Form III’s received by it to the Commissioner for the purpose of monitoring and determining capital projects that come within § 224 of the Charter.

§ 2-07 Art Commission; Removal or Alteration of Works of Art.

(a) The procedures set forth herein are in addition to and not in lieu of the procedures of the Art Commission pursuant to § 854 of the Charter.
  1. Works of art acquired pursuant to § 224 of the Charter shall not be, without the prior written approval of the Art Commission,

   (1) sold or otherwise alienated or disposed of; or

   (2) altered, modified in any way or relocated.

§ 2-08 Implementation.

(a) Following receipt of the panel's recommendations, the Design Agency shall make its final decision concerning the work(s) of art to be included in the eligible project. If the Design Agency's decision differs from the panel's recommendations, the Design Agency shall promptly, and within the design phase, provide a written explanation for its decision to the Commissioner, who shall forward copies of such explanation to members of the panel and to the persons referred to in 43 RCNY § 2-03(e) above.
  1. It is the intent of § 224 of the Charter that the works of art be an integral part of and compatible with the project being constructed. Hence, the procedures called for in these Regulations are meant to commence at the earliest stages of project design to assure that the project construction schedule has incorporated into it the schedule to be followed for the creation, acquisition or restoration of the works of art to be included therein.
  2. The Commissioner shall administer the implementation of § 224 of the Charter and shall offer guidance, assistance and advice, throughout the pre- and post-panel process, to the agencies involved with eligible projects, the Architect, the artist(s) or the community.

Chapter 3: City Policy Concerning Aliens

§ 3-01 Definitions.

Alien. “Alien” means any person who is not a citizen or national of the United States.

Line worker. “Line worker” means a person employed by any City agency whose duties involve contact with the public.

§ 3-02 Confidentiality of Information Respecting Aliens.

(a) No City officer or employee shall transmit information respecting any alien to federal immigration authorities unless

   (1) such officer’s or employee’s agency is required by law to disclose information respecting such alien, or

   (2) such agency has been authorized, in writing signed by such alien, to verify such alien’s immigration status, or

   (3) such alien is suspected by such agency of engaging in criminal activity, including an attempt to obtain public assistance benefits through the use of fraudulent documents.

  1. Each agency shall designate one or more officers or employees who shall be responsible for receiving reports from such agency’s line workers on aliens suspected of criminal activity and for determining, on a case by case basis, what action, if any, to take on such reports. No such determination shall be made by any line worker, nor shall any line worker transmit information respecting any alien directly to federal immigration authorities.
  2. Enforcement agencies, including the Police Department and the Department of Correction, shall continue to cooperate with federal authorities in investigating and apprehending aliens suspected of criminal activity. However, such agencies shall not transmit to federal authorities information respecting any alien who is the victim of a crime.

§ 3-03 Availability of City Services to Aliens.

Any service provided by a City agency shall be made available to all aliens who are otherwise eligible for such service unless such agency is required by law to deny eligibility for such service to aliens. Every City agency shall encourage aliens to make use of those services provided by such agency for which aliens are not denied eligibility by law.

Chapter 4: Charge For Bad Checks [Executive Order No. 125]

§ 4-01 Charge of Payment on Account of Insufficient Funds.

Pursuant to § 85 of the General Municipal Law, a charge of fifteen dollars per check may be added to any account owing to the City of New York or any of its agencies where a tendered payment of such account was by a check or other written order that was returned for insufficient funds.

Chapter 5: Petitions For Rulemaking

§ 5-01 Short Title.

These Rules and Regulations shall be known and may be cited as “Rules for Pe- titioning.”

§ 5-02 Definitions.

Agency. “Agency” shall mean an agency the head of which holds office upon the appointment of the Mayor.

Person. “Person” shall mean an individual, partnership, corporation or other legal entity, and any individual or entity acting in a fiduciary or representative capacity.

Petition. “Petition” shall mean a request or application for any agency to adopt a rule.

Petitioner. “Petitioner” shall mean the person who files a petition.

Rule. “Rule” shall have the meaning set forth in § 1041(5) of the New York City Charter (City Administrative Procedure Act) and shall mean generally any statement or communication of general applicability that

  1. implements or applies law or policy or
  2. prescribes the procedural requirements of an agency, including an amendment, suspension, or repeal of any such statement or communication.

§ 5-03 Scope.

These Rules and Regulations shall govern the procedures by which the public may submit petitions for rulemaking pursuant to § 1043(f) of the New York City Charter (City Administrative Procedures Act).

§ 5-04 Procedures for Submitting Petitions and Responses to Petitions.

(a) Any person may petition an agency to consider the adoption of a rule. The petition must contain the following information:

   (1) The rule to be considered, with proposed language for adoption;

   (2) A statement of the agency’s authority to promulgate the rule and its purpose;

   (3) Petitioner’s argument(s) in support of adoption of the rule;

   (4) The period of time the rule should be in effect;

   (5) Responses to any questions posed on a form provided by an agency for such petitions, pursuant to subdivision (d) of this section;

   (6) The name, address and telephone number of the petitioner or his or her authorized representative;

   (7) The signature of petitioner or his or her representative.

  1. Any change in the information provided pursuant to 43 RCNY § 5-04(a)(6) must be communicated promptly in writing to the office of which the petition was submitted.
  2. All petitions should be typewritten, if possible, but handwritten petitions will be accepted, provided they are legible.
  3. Each agency is authorized to adopt a form petition. Every petition for rulemaking shall be submitted on such form, unless such a form is not available from the agency, in which case the petition shall be filed in duplicate on plain white paper.
  4. Each agency may designate an officer or location to which a petition must be addressed or delivered. If no officer or location is designated, petitions shall be mailed or delivered to the agency’s General Counsel.
  5. Upon receipt of a petition submitted in the proper form, the designated officer for each agency will stamp the petition with the date it was received and will assign the petition number. If that officer is not the person who will ultimately accept or deny the petition for adoption of a rule, the officer will forward the petition to the agency’s Commissioner, or the officer or employee of the agency authorized to accept or deny such petitions for the agency.
  6. Within sixty days from the date the petition was received by the agency, the agency shall either deny such petition in a written statement containing the reasons for denial, or shall state in writing the agency’s intention to grant the petition and to initiate rulemaking by a specified date. In proceeding with such rulemaking, an agency shall not be bound by the language proposed by petitioner, but may amend or modify such proposed language at the agency’s discretion. The agency’s decision to grant or deny a petition is final.
  7. The agency’s decision to grant or deny an appeal is final.

§ 5-05 Public Notice and Promulgation of Rules and Regulations by City Agencies.

(a) Each agency shall publicize by posting in a conspicuous location,

   (1) the procedures for submitting petitions for rulemaking including the location at which any necessary forms may be obtained, and

   (2) the name, title, business address and telephone number of the officer designated to receive petitions.

  1. Each agency shall forthwith submit for publication in The City Record notice of the name, title, business address and telephone number of the officer designated to receive petitions, and the location at which any necessary forms may be obtained. Notice of any change in the above information shall be published as soon as practicable in The City Record. Such notice shall not constitute a rule as defined in the City Charter, § 1041, subd. 5.
  2. In addition to the matters required to be published pursuant to subdivision (b) of this section, each agency may, after consultation with the Law Department, promulgate such additional rules as may be necessary to effectuate the purpose of these Rules and Regulations.

§ 5-06 Severability.

If any provision of these Rules and Regulations or the application thereof to any person or circumstances is adjudged invalid by a court of competent jurisdiction, such determination shall not affect or impair the validity of the other provisions of these Rules and Regulations or the application thereof to other persons and circumstances.

Chapter 7: New York City Made In New York Film Production Tax Credit Program

§ 7-01 Purpose and General Description.

(a)  The purpose of these regulations is to set forth the application process for the New York City Made In New York Film Production Tax Credit program established by Local Law Number 2 of the Year 2005, as amended by Local Law No. 24 of the Year 2006, pursuant to subdivision (b) of § 1201-a of the Tax Law. The Mayor's Office of Film, Theatre and Broadcasting has authority to promulgate regulations to establish procedures for the allocation of such credits including, but not limited to, the application process, standards for application evaluations, and any other provisions deemed necessary and appropriate. The Mayor's Office of Film, Theatre and Broadcasting shall administer the program, including the issuance of tax credit certificates. These regulations do not govern the New York State film production tax credit program. Eligibility in and receipt of a tax credit in the New York State program does not guarantee eligibility in or receipt of a tax credit in the New York City Made In New York film production tax credit program. In addition, eligibility in and receipt of a tax credit in the New York City Made In New York film production tax credit program does not guarantee eligibility in or receipt of a tax credit in the New York State program.
  1. A taxpayer which has been issued a certificate of tax credit shall be allowed to claim a New York City Made in New York film production tax credit pursuant to §§ 11-503(m) or 11-604(20) of the Administrative Code of the City of New York, whichever is applicable.
  2. Such tax credit shall only be allowed with respect to a qualified film that is completed on or after January 1, 2005. For this purpose, a film will be considered completed upon substantial completion of post-production.

§ 7-02 Definitions.

As used in this regulation, the following terms shall have the following meanings:

  1. Authorized applicant. “Authorized applicant” means a qualified film production company that is scheduled to begin principal and ongoing photography on the qualified film no more than ninety (90) days after submitting an initial application to the Office and intends to shoot a portion of principal and ongoing photography on a stage at a qualified film production facility on a set or sets.
  2. Approved applicant. “Approved applicant” means an authorized applicant that has been issued a certificate of conditional eligibility by the Office.
  3. Certificate of conditional eligibility. “Certificate of conditional eligibility” means a certificate issued by the Office which states that the authorized applicant has met the criteria set forth in 43 RCNY § 7-06(a) and is being considered for the New York City Made In New York film production tax credit, pending successful completion of the final application and issuance of a certificate of tax credit. Such certificate of conditional eligibility shall include, but not be limited to, the following information: name and address of the authorized applicant, effective date, taxpayer identification number, a statement that the initial application meets the appropriate criteria for conditional eligibility under this regulation and a disclaimer stating that actual receipt of the tax credit is subject to availability of City funds for the program.
  4. Certificate of tax credit. “Certificate of tax credit” means a certificate issued by the Office which states the amount of the New York City Made In New York film production tax credit that the approved applicant has qualified for, based on the Office’s analysis under §§ 11-503(m) or 11-604(20) of the Administrative Code of the City of New York and the provisions of this chapter. Such certificate shall include, but not be limited to, the following information: name and address of the approved applicant, name of the qualified film the credit applies to, the amount of the tax credit to be received by the approved applicant and a disclaimer stating that actual receipt of the tax credit is subject to availability of City funds for the program.
  5. Completeness of the application. “Completeness of the application” means that all questions on the application itself were fully addressed by either the authorized or approved applicant and that any additional substantiating documents that were requested by the Office were provided in a manner sufficient to allow the Office to properly evaluate the application.
  6. Completion of production of a qualified film. “Completion of production of a qualified film” for purposes of paragraph (1) of subdivision (c) of 43 RCNY § 7-03 and paragraphs (4) and (5) of subdivision (b) of 43 RCNY § 7-06 and subdivision (k) of 43 RCNY § 7-02, means that post-production of a qualified film has been finished and a cut negative, video master or other final locked form of the qualified film is ready for the striking of prints or electronic copies, and/or ready for broadcast or delivery to a distributor. All activities and expenses related to marketing and distribution, including the making of release prints, video dupes or other forms of copies, promotional images, and poster art are considered to occur after the production of a qualified film is completed.
  7. Commissioner. “Commissioner” means the Commissioner of the City of New York Mayor’s Office of Film, Theatre and Broadcasting.
  8. Effective date. “Effective date” means the date the certificate of conditional eligibility becomes effective. Such date is determined by the date the initial application is received by the Office. In the event that the applicant’s principal and ongoing photography on a qualified film does not actually begin within ninety (90) days of the submission of the initial application, the applicant’s effective date will be recalculated to correspond to the date ninety (90) days prior to the date that the approved applicant submits, and the Office receives, a notification of actual commencement of principal and ongoing photography. If the actual commencement of principal and ongoing photography does not begin within one hundred eighty (180) days of submission of the initial application, the application shall no longer be deemed valid.
  9. Feature-length film. “Feature-length film” means a production intended for commercial distribution to a motion picture theater or directly to the home video market that has a running time of at least seventy-five (75) minutes in length.
  10. Film production facility. “Film production facility” means a building and/or complex of buildings and their improvements and associated back-lot facilities in which films are or are intended to be regularly produced and which contain at least one sound stage.
  11. Final application. “Final application” means a document created by the Office and submitted by an approved applicant after it has completed production of a qualified film which contains information concerning actual expenditures regarding a qualified film that could make it eligible for the New York City Made In New York film production tax credit under §§ 11-503(m) or 11-604(20) of the Administrative Code of the City of New York and the provisions of this chapter. Such application shall include, but not be limited to: actual data with regard to the qualified film’s total budget, the total production costs at film production facilities in and outside of New York, and the total number of shooting days in and outside of New York and any other information the Office determines is necessary to properly evaluate the application.
  12. Initial application. “Initial application” means a document created by the Office and submitted by an authorized applicant which contains information concerning projected expenditures regarding a qualified film that could make it eligible for the New York City Made In New York film production tax credit under §§ 11-503(m) or 11-604(20) of the Administrative Code of the City of New York and the provisions of this chapter. Such application shall include, but is not limited to, the following information: the estimated total budget for the qualified film, estimates of expenditures at a qualifying production facility, estimates of shooting days and expenditures in New York City and outside of New York City and any other information the Office determines is necessary to properly evaluate the application.
  13. Notification of actual commencement of principal and ongoing photography. “Notification of actual commencement of principal and ongoing photography” means the date the Office receives written notice from the approved applicant that the actual production of a qualified film, including the principal and ongoing photography, has commenced on a date specified in such notice, which date is on or before the date that the approved applicant has submitted such notice.
  14. Office. “Office” means the City of New York Mayor’s Office of Film, Theatre and Broadcasting.
  15. Pre-production. “Pre-production” means the process of preparation for actual physical production which begins after a qualified film has received a firm agreement of financial commitment (“greenlit”) with, for example, the establishment of a dedicated production office, the hiring of key crew members such as a Unit Production Manager, Line Producer and Location Manager, and includes, but is not limited to, activities such as location scouting, hiring of crew, and execution of contracts with vendors of equipment and stage space.
  16. [Reserved.]
  17. Priority number. “Priority number” means the number used by the Office to determine allocation of the New York City Made In New York film production tax credit. Priority number shall be based on the applicant’s effective date; provided, however, that in the event that there is more than one initial application with the same effective date, priority shall be given to the authorized applicant with the earliest anticipated date of commencement of principal and ongoing photography. Provided further that if the principal and ongoing photography does not begin on the anticipated date, and the commencement date is within the one hundred eighty (180)-day limitation provided in subdivision (h) of this section, such priority number shall be recalculated based upon the date that the Office receives notification of actual commencement of principal and ongoing photography from the approved applicant.
  18. Post-production. “Post-production” means the final stage in a qualified film’s production after principal and ongoing photography is completed, including, but not limited to, editing, Foley recording, Automatic Dialogue Replacement, sound editing, special effects, scoring and music editing, beginning and end credits, negative cutting, soundtrack production, the addition of sound/visual effects, dubbing, and subtitling. Advertising and marketing activities and expenses are not included in post-production.
  19. Premature application. “Premature application” means an initial application in which the Office reasonably determines that the applicant cannot commence principal and ongoing photography within ninety (90) days of the date the initial application was submitted. Such determination may, but is not required to, be based on, among other things, vagueness of the applicant’s answers on the initial application and during the initial interview and lack of documentation supporting an applicant’s initial application.
  20. Principal and ongoing photography. “Principal and ongoing photography” means the filming of major and significant portions of a qualified film that involves the lead actors.
  21. Production costs. “Production costs” means any costs for tangible property used and services performed directly and predominantly (including pre-production and post-production) in the production of a qualified film. Production costs shall not include (i) costs for a story, script or scenario to be used for a qualified film and (ii) wages or salaries or other compensation for writers, directors, including music directors, producers, actors and performers (other than background actors or other performers with no scripted lines). Production costs generally include technical and crew production costs, such as expenditures for film production facilities, or any part thereof, props, makeup, wardrobe, film processing, camera, sound recording, set construction, lighting, shooting, editing and meals.
  22. Qualified film. “Qualified film” means a feature-length film, television film, television pilot and/or each episode of a television series, regardless of the medium by means of which the film, pilot or episode is created or conveyed. Qualified film shall not include (i) a documentary film, news or current affairs program, interview or talk program, magazine program, variety or skit program, “how-to” (i.e., instructional) film or program, film or program consisting primarily of stock footage, sporting event or sporting program, game show, award ceremony, film or program intended primarily for industrial, corporate or institutional end-users, fundraising film or program, daytime drama (i.e., daytime “soap opera”), commercials, music videos or “reality” program or (ii) a production for which records are required under § 2257 of Title 18, United States Code, to be maintained with respect to any performer in such production (reporting of books, films, etc. with respect to sexually explicit conduct).
  23. Qualified film production company. “Qualified film production company” means a corporation, partnership, limited partnership, or other entity or individual which or who is principally engaged in the production of a qualified film and controls the qualified film during production and is responsible for payment of the direct production expenses (including pre and post-production) and is a signatory to the qualified film’s contracts with its payroll company and facility operators.
  24. Qualified film production facility. “Qualified film production facility” means a film production facility in New York City, which contains at least one sound stage having a minimum of seven thousand square feet of contiguous production space.
  25. Qualified production costs. “Qualified production costs” means production costs only to the extent such costs are incurred directly in New York City and are attributable to the use of tangible property or the performance of services within New York City directly and predominantly in the production (including pre-production and post-production) of a qualified film.
  26. Sound stage. “Sound stage” means a large interior room or space which provides a controlled environment in which filming takes place on sets built or assembled specifically for the production.

(aa) Television film. “Television film”, which may also be known as “movie-of-the-week,” “mow,” “made for television movie,” or “mini-series,” means a production intended for broadcast on television, whether free or via a subscription-based service, that has a running time of at least ninety (90) minutes in length (inclusive of commercial advertisement and interstitial programming).

(bb) Television pilot. “Television pilot” means the initial episode produced for a proposed episodic television series. This category will include shorter formats which are known as “television presentation,” a production of at least fifteen (15) minutes in length, produced for the purposes of selling a proposed television series, but not intended for broadcast.

  1. Television series. “Television series”, which may also be known as “episodic television series,” means a regularly occurring production intended in its initial run for broadcast no more than once weekly, on television, whether free or via subscription-based service, that has a running time of at least thirty (30) minutes in length (inclusive of commercial advertisement and interstitial programming).

§ 7-03 Application Process.

For the purposes of this Chapter, only an authorized applicant shall be eligible to apply for the New York City Made In New York film production tax credit.

  1. Initial application.

   (1) An authorized applicant shall submit an initial application to the Office prior to the start of principal and ongoing photography.

   (2) The authorized applicant shall have an interview with the Office to discuss the details of the initial application. A producer and either the line producer, unit production manager, production accountant or their designee, approved by the Office, shall attend such meeting.

   (3) The Office shall approve or disapprove the initial application based upon criteria set forth in 43 RCNY § 7-06(a).

   (4) If the initial application is approved, the Office shall issue a certificate of conditional eligibility to the authorized applicant. The Office shall provide a copy of such certificate of conditional eligibility to the Department of Finance. If the initial application is disapproved, the Office shall provide the authorized applicant with a notice of disapproval which shall state the reasons therefor. Such disapproval shall be a rejection of the authorized applicant’s initial application. If the initial application is disapproved as premature, an authorized applicant may resubmit the application.

   (5) Applications shall be reviewed by the Office in the order they are received.

  1. Notification. The approved applicant shall notify the Office, in writing, on the date principal and ongoing photography begins on the qualified film. In addition, the approved applicant shall provide a sign off budget or its equivalent and other supporting documents requested by the Office on this date.
  2. Final application.

   (1) Within ninety (90) days after the completion of production of a qualified film, or, if a written extension request is submitted, one hundred fifty (150) days after the completion of production, the approved applicant shall submit a final application to the Office.

   (2) The Office shall approve or disapprove the final application based upon criteria set forth in 43 RCNY § 7-06(b). The Office may request additional documentation, including copies of receipts of qualified production costs, in connection with its consideration of the final application. If the final application is approved, the Office shall issue a certificate of tax credit to the approved applicant. The Office shall provide a copy of such certificate of tax credit to the Department of Finance. If the final application is disapproved, the Office shall provide the applicant with a notice of disapproval which shall state the reasons therefor. Such disapproval shall be a rejection of the applicant’s final application.

§ 7-04 [Reserved]

The Office shall allocate the amount of the credits allocated for each calendar year in order of priority based upon an applicant’s effective date. In the event that an approved applicant’s New York City Made In New York production tax credit would exceed the maximum amount of credits allowed for that given year, the approved applicant will be allocated credits on a priority basis in the immediately succeeding calendar year. A maximum of $12.5 million of credits may be allocated in 2004 and 2005, and $30 million in 2006 through 2011.

§ 7-06 Criteria for Evaluation of Applications.

(a)  Initial application. In the event that any of the following criteria are not met, or in the event that the Office concludes that the authorized applicant knowingly submitted false or misleading information, the Office shall disapprove the initial application:

   (1) the application is substantially complete;

   (2) the application is not premature and is submitted prior to the start of principal and ongoing photography;

   (3) the application is submitted within one hundred eighty (180) days of the start of the principal and ongoing photography;

   (4) the authorized applicant is a qualified film production company;

   (5) the authorized applicant intends to shoot a portion of principal and ongoing photography on a stage at a qualified film production facility on a set or sets;

   (6) the authorized applicant is planning to produce a qualified film;

   (7) the qualified film will be completed on or after January 1, 2005, within the meaning of subdivision (c) of 43 RCNY § 7-01;

   (8) the authorized applicant’s projected qualified production costs (excluding post-production costs) paid or incurred which are attributable to the use of tangible property or the performance of services at a qualified film production facility in the production of a qualified film are likely to equal or exceed seventy-five percent of the projected production costs (excluding post-production costs) paid or incurred which are attributable to the use of tangible property or the performance of services at any film production facility within and without the City in the production of the qualified film; and

   (9) in the event that the projected qualified production costs (excluding post-production costs) paid or incurred which are attributable to the use of tangible property or the performance of services at a qualified film production facility in the production of a qualified film are less than three million dollars, the shooting days spent in New York outside of a film production facility in the production of a qualified film are expected to equal or exceed seventy-five percent of the total shooting days spent within and without New York outside of a film production facility in the production of such qualified film.

  1. Final application. In the event that any of the following criteria are not met, or the Office determines that the approved applicant knowingly submitted false or misleading information, the Office shall disapprove the final application:

   (1) the application is substantially complete;

   (2) the approved applicant shot a portion of principal and ongoing photography on a stage at a qualified film production facility on a set or sets;

   (3) the application is submitted with respect to a completed qualified film that was completed on or after January 1, 2005, within the meaning of subdivision (c) of 43 RCNY § 7-01;

   (4) the approved applicant’s actual date of completion of production of the qualified film was within one year of its projected completion date;

   (5) the final application was submitted within ninety (90) days after the completion of production of a qualified film, or, if a written extension request has been submitted, one hundred fifty (150) days after the completion of production;

   (6) the approved applicant’s actual qualified production costs paid or incurred (excluding post-production costs) which are attributable to the use of tangible property or the performance of services at a qualified film production facility in the production of the qualified film equaled or exceeded seventy-five percent of the production costs (excluding post-production costs) paid or incurred that were attributable to the use of tangible property or the performance of services at any film production facility within and without the City in the production of the qualified film; and

   (7) in the event that the actual qualified production costs (excluding post-production costs) paid or incurred that are attributable to the use of tangible property or the performance of services at a qualified film production facility in the production of a qualified film are less than three million dollars, the shooting days spent in New York outside of a film production facility in the production of a qualified film equaled or exceeded seventy five percent of the total shooting days spent within and without New York outside of a film production facility in the production of such qualified film. If the shooting days spent in New York equaled or exceeded the seventy five percent threshold, the Office shall include in their calculation of the New York City Made In New York film production tax credit the portion of qualified production costs attributable to the use of tangible property or the performance of services in the production of a qualified film outside of a qualified film production facility.

  1. For purposes of this section, the Office may consider whether an authorized applicant executes or has executed an agreement with the Office that obligates the authorized applicant to include the Office’s “Made In New York” logo in the screen credits of the qualified film indicating receipt of the tax credit.

§ 7-07 Record Retention.

Each authorized and approved applicant must maintain records, in paper or electronic form, of any qualified productions costs used to calculate its potential or actual benefit(s) under this program for a minimum of three years from the date of filing of the tax return on which the applicant claims the tax credit. The Office shall have the right to request such records upon reasonable notice.

§ 7-08 Appeal Process.

If the authorized applicant’s initial application or an approved applicant’s final application is disapproved by the Office, or if the approved applicant disagrees with the amount of the tax credit granted by the Office, the applicant may appeal such determination. In the case of an appeal from a disapproval of an initial or final application, such appeal shall be made by sending a letter to the City of New York Mayor’s Office of Film, Theatre and Broadcasting, Attn: Commissioner, 1697 Broadway, New York, NY 10019, within thirty (30) days from the date of the denial letter issued by the Office. In the case of an appeal from a determination of the amount of the tax credit, such appeal shall be made by sending a letter to the same address as listed above within thirty (30) days from the date of issuance of the certificate of tax credit. Failure to request an appeal within thirty (30) days will finalize the denial decision and/or the amount of the tax credit. Upon receipt of a timely letter of appeal, the Commissioner will appoint an appeal officer within the Office to review. Such appeal officer will make a report on the appeal to the Commissioner. The Commissioner or his designee shall issue a final order within sixty (60) days of the report. A copy of the final order will be issued to the appellant within ten (10) days after the date the Commissioner or his designee renders the final order.

§ 7-09 Applicability.

The amendments made by the rules that added this section shall not apply to initial or final applications submitted prior to the effective date of such amendments, with the exception of the amendments made to 43 RCNY § 7-05 by § 4 of such rules.

Chapter 6: City Environmental Quality Review (CEQR) [Executive Order No. 91 of 1977, As Amended]

§ 6-01 Applicability.

[Except as modified by City Planning Rules, 43 RCNY § 5-02(a) and (d).] No final decision to carry out or approve any action which may have a significant effect on the environment shall be made by any agency until there has been full compliance with the provisions of this chapter.

§ 6-02 Definitions.

[Additional definitions, City Planning Rules 43 RCNY § 5-02(c).] As used herein, the following terms shall have the indicated meanings unless noted otherwise:

Action.[Modified by City Planning Rules 43 RCNY § 5-02(c)(2).] “Action” means any activity of an agency, other than an exempt action enumerated in 43 RCNY § 6-04, including but not limited to the following:

   (1) non-ministerial decisions on physical activities such as construction or other activities which change the use or appearance of any natural resource or structure;

   (2) non-ministerial decisions on funding activities such as the proposing, approval or disapproval of contracts, grants, subsidies, loans, tax abatements or exemptions or other forms of direct or indirect financial assistance, other than expense budget funding activities;

   (3) planning activities such as site selection for other activities and the proposing, approval or disapproval of master or long range plans, zoning or other land use maps, ordinances or regulations, development plans or other plans designed to provide a program for future activities;

   (4) policy making activities such as the making, modification or establishment of rules, regulations, procedures, policies and guidelines;

   (5) non-ministerial decisions on licensing activities, such as the proposing, approval or disapproval of a lease, permit, license, certificate or other entitlement for use or permission to act.

Agency.[Inapplicable. See City Planning Rules 43 RCNY § 5-02(a), 43 RCNY § 5-02(c)(i).]”Agency” means any agency, administration, department, board, commission, council, governing body or any other governmental entity of the City of New York, unless otherwise specifically referred to as a state or federal agency.

Applicant. “Applicant” means any person required to file an application pursuant to this chapter.

Conditional negative declaration. “Conditional negative declaration” means a written statement prepared by the lead agencies after conducting an environmental analysis of an action and accepted by the applicant in writing, which announces that the lead agencies have determined that the action will not have a significant effect on the environment if the action is modified in accordance with conditions or alternatives designed to avoid adverse environmental impacts.

DEC. “DEC” means the New York State Department of Environmental Conservation.

Environment. “Environment” means the physical conditions which will be affected by a proposed action, including land, air, water, minerals, flora, fauna, noise, objects of historic or aesthetic significance, existing patterns of population concentration, distribution or growth, and existing community or neighborhood character.

Environmental analysis. “Environmental analysis” means the lead agencies’ evaluation of the short and long term, primary and secondary environmental effects of an action, with particular attention to the same areas of environmental impacts as would be contained in an EIS. It is the means by which the lead agencies determine whether an action under consideration may or will not have a significant effect on the environment.

Environmental assessment form. [Retitled Environmental Assessment Statement; see City Planning Rules 43 RCNY § 5-04(c)(3).] “Environmental assessment form” means a written form completed by the lead agencies, designed to assist their evaluation of actions to determine whether an action under consideration may or will not have a significant effect on the environment.

Environmental impact statement (EIS). “Environmental impact statement (EIS)” means any written document prepared in accordance with 43 RCNY §§ 6-08, 6-10, 6-12 and 6-13. An EIS may either be in a draft or a final form.

Environmental report. “Environmental report” means a report to be submitted to the lead agencies by a non-agency applicant when the lead agencies prepares or cause to be prepared a draft EIS for an action involving such an applicant. An environmental report shall contain an analysis of the environmental factors specified in 43 RCNY § 6-10 as they relate to the applicant’s proposed action and such other information as may be necessary for compliance with this chapter, including the preparation of an EIS.

Lead agencies. [Inapplicable, City Planning Rules 43 RCNY § 5-02(a). Superseded by City Planning Rules 43 RCNY § 5-02(b)(1) and 43 RCNY § 5-02(c)(3)(vi); also see City Planning Rules 43 RCNY § 5-03 for choice of lead agency.]”Lead agencies” means the Department of Environmental Protection and the Department of City Planning of the City of New York, as designated by the Mayor pursuant to § 617.4 of Part 617 of Volume 6 of the New York Code of Rules and Regulations, for the purpose of implementing the provisions of Article 8 of the Environmental Conservation Law (SEQRA) in the City of New York, by order dated December 23, 1976.

Ministerial action. “Ministerial action” means an action performed upon a given state of facts in a prescribed manner imposed by law without the exercise of any judgment or discretion as to the propriety of the action, although such law may require, in some degree, construction of its language or intent.

Negative declaration. “Negative declaration” means a written statement prepared by the lead agencies after conducting an environmental analysis of an action which announces that the lead agencies have determined that the action will not have a significant effect on the environment.

Notice of determination.[See also City Planning Rules 43 RCNY § 5-02(c)(3)(iii).] “Notice of determination” means a written statement prepared by the lead agencies after conducting an environmental analysis of an action which announces that the lead agencies have determined that the action may have a significant effect on the environment, thus requiring the preparation of an EIS.

NYCRR.[See also City Planning Rules 43 RCNY § 5-02(c)(3)(viii).] “NYCRR” means the New York Code of Rules and Regulations.

Person. “Person” means an agency, individual, corporation, governmental entity, partnership, association, trustee or other legal entity.

Project data statement.[Inapplicable, City Planning Rules 43 RCNY § 5-02(a). Superseded by Environmental Assessment Statement, see City Planning Rules 43 RCNY § 5-04(c)(3). See also City Planning Rules 43 RCNY § 5-05(b)(1) and § 5-08(a).]”Project date statement” means a written submission to the lead agencies by an applicant on a form prescribed by the lead agencies, which provides an identification of an information relating to the environmental impacts of a proposed action. The project data statement is designed to assist the lead agencies in their evaluation of an action to determine whether an action under consideration may or will not have significant effect on the environment.

SEQRA. “SEQRA” means the State Environmental Quality Review Act (Article 8 of the New York State Environmental Conservation Law).

Typically associated environmental effect.”Typically associated environmental effect” means changes in one or more natural resources which usually occur because of impacts on other such resources as a result of natural interrelationships or cycles.

ULURP. “ULURP” means the Uniform Land Use Review Procedure (§ 197-c of Chapter 8 of the New York City Charter).

§ 6-03 Actions Involving Federal or State Participation.

(a) [See also City Planning Rules 43 RCNY § 5-04(e)] If an action under consideration by an agency may involve a "major federal action significantly affecting the quality of the human environment under the National Environmental Policy Act of 1969," then the following procedures shall apply:

   (1) in the case of an action for which there has been duly prepared both a draft EIS and a final EIS, no agency shall have an obligation to prepare an EIS or to make findings pursuant to 43 RCNY § 6-12.

   (2) in the case of an action for which there has been prepared a Negative Declaration or other written threshold determination that the action will not require a federal impact statement under the National Environmental Policy Act of 1969, the lead agencies shall determine whether or not the action may have a significant effect on the environment pursuant to this chapter, and the action shall be fully subject to the same.

  1. [Inapplicable, City Planning Rules 43 RCNY § 5-02(a). Entire subdivision (b) superseded by City Planning Rules 43 RCNY § 5-03(j) and 43 RCNY § 5-04(d).]If an action under consideration by any agency may involve any state action which may have a significant effect on the environment under SEQRA, pursuant to which a state agency is required to comply with the procedures specified in 6 NYCRR 617, then the determination as to whether the state agency or the lead agencies shall be responsible for the environmental review shall be made on the basis of the following criteria:

   (1) the agency to first act on the proposed action;

   (2) a determination of which agency has the greatest responsibility for supervising or approving the action as a whole;

   (3) a determination of which agency has the more general governmental powers as compared to single or limited powers or purposes;

   (4) a determination of which agency has the greatest capability for providing the most thorough environmental assessment of the action;

   (5) a determination of whether the anticipated impacts of the action being considered are primarily of statewide, regional or local concern, e.g., if such impacts are primarily of local concern, the lead agencies shall conduct the environmental review. If this determination cannot be made within 30 days of the filing of an application, the Commissioner of DEC shall be requested, in writing, to make such determination.

§ 6-04 Exempt Actions.

[See also City Planning Rules 43 RCNY § 5-02(d).] The following actions shall not be subject to the provisions of this chapter:
  1. projects or activities classified as Type I pursuant to 43 RCNY § 6-15 directly undertaken or funded by an agency prior to June 1, 1977 except that if such action is sought to be modified after June 1, 1977, which modification may have a significant adverse effect on the environment, then such modification shall be an action fully subject to the requirements of [;this chapter;

   (1) such actions include, but are not limited to, those actions defined in 43 RCNY § 6-09. “Action” (1), (2), (3) and (4) of [;this chapter;

   (2) an action shall be deemed to be undertaken at the point that:

      (i) the agency is irreversibly bound or committed to the ultimate completion of a specifically designed activity or project; or

      (ii) in the case of construction activities, a contract for substantial construction has been entered into or if a continuous program of on-site construction or modification has been engaged in; or

      (iii) the agency gives final approval for the issuance to an applicant of a discretionary contract, grant, subsidy, loan or other form of financial assistance; or

      (iv) in the case of an action involving federal or state participation, a draft EIS has been prepared pursuant to the National Environmental Policy Act of 1969 or SEQRA, respectively.

  1. projects or activities classified as Type I pursuant to 43 RCNY § 6-15 of this chapter approved by an agency prior to September l, 1977 except that if such action is sought to be modified after September 1, 1977, which modification may have a significant adverse effect on the environment, then such modification shall be an action fully subject to the requirements of this chapter;

   (1) such actions include, but are not limited to, those actions defined in 43 RCNY § 6-02, “Action” (2) and (5) of this chapter;

   (2) an action shall be deemed to be approved at the point that:

      (i) the agency gives final approval for the issuance to an applicant of a discretionary contract, grant, subsidy, loan or other form of financial assistance; or

      (ii) the agency gives final approval for the issuance to an applicant of a discretionary lease, permit, license, certificate or other entitlement for use or permission to act; or

      (iii) in the case of an action involving federal or state participation, a draft EIS has been prepared pursuant to the National Environmental Policy Act of 1969 or SEQRA, respectively.

  1. projects or activities not otherwise classified as Type I pursuant to 43 RCNY § 6-15 directly undertaken, funded or approved by an agency prior to November 1, 1978 except that if such action is sought to be modified after November 1, 1978, which modification may have a significant adverse effect on the environment, then such modification shall be an action fully subject to the requirements of this chapter;

   (1) such actions include, but are not limited to, those actions defined in 43 RCNY § 6-02 “Action” of this chapter;

   (2) an action shall be deemed to be undertaken as provided in paragraphs (a)(2) and (b)(2) of this section, as applicable.

  1. enforcement or criminal proceedings or the exercise of prosecutorial discretion in determining whether or not to institute such proceedings;
  2. [;See City Planning Rules 43 RCNY § 5-02(d).]; ministerial actions, which shall appear on a list compiled, certified and made available for public inspection by the lead agencies, except as provided in 43 RCNY § 6-15(a), Type I, relating to critical areas and historic resources;
  3. maintenance or repair involving no substantial changes in existing structures or facilities;
  4. actions subject to the provisions requiring a certificate of environmental compatibility and public need in Article 7 and 8 of the Public Service Law;
  5. actions which are immediately necessary on a limited emergency basis for the protection or preservation of life, health, property or natural resources; and
  6. actions of the Legislature of the State of New York or of any court.

§ 6-05 Determination of Significant Effect – Applications.

(a) [Inapplicable, City Planning Rules 43 RCNY § 5-02(a). Superseded by City Planning Rules 43 RCNY § 5-05(a). See also City Planning Rules 43 RCNY § 5-02(b)(2) and 43 RCNY § 5-02(d).]Each agency shall ascertain whether an application need be filed pursuant to this section, employing lists of actions, classified as either exempt, Type I or Type II pursuant to 43 RCNY §§ 6-04
and 6-15

, respectively, which lists shall be certified by the lead agencies.

  1. [Introductory paragraph inapplicable, City Planning Rules 43 RCNY § 5-02(a). Paragraph (b) superseded by City Planning Rules § 5-08.] The applicant initiating the proposed action, other than an exempt or Type II action pursuant to 43 RCNY § 6-04, shall file an application with the lead agencies, which application shall include a Project Data Statement and such other documents and additional information as the lead agencies may require to conduct an environmental analysis to determine whether the action may or will not have a significant effect on the environment. Where possible existing City applications shall be modified to incorporate this procedure and a one-stop review process developed;

   (1) within 20 calendar days of receipt of a determination pursuant to 43 RCNY § 6-03(b), if applicable, the lead agencies shall notify the applicant, in writing, whether the application is complete or whether additional information is required;

   (2) [Determination pursuant to 43 RCNY § 5-03(b) deemed to refer to lead agency selection pursuant to City Planning Rules 43 RCNY § 5-03. See City Planning Rules 43 RCNY § 5-02(b)(3).] when all required information has been received, the lead agencies shall notify the applicant, in writing, that the application is complete.

  1. Each application shall include an identification of those agencies, including federal or state agencies, which to the best knowledge of the applicant, have jurisdiction by law over the action or any portion thereof.
  2. Where appropriate, the application documents may include a concise statement or reasons why, in the judgment of the applicant, the proposed action is one which will not require the preparation of an EIS pursuant to this chapter.
  3. Initiating applicants shall consider the environmental impacts of proposed actions and alternatives at the earliest possible point in their planning processes, and shall develop wherever possible, measures to mitigate or avoid adverse environmental impacts. A statement discussing such considerations, alternatives and mitigating measures shall be included in the application documents.
  4. Nothing in this section shall be deemed to prohibit an applicant from submitting a preliminary application in the early stages of a project or activity for review and comment by the lead agencies.

§ 6-06 Determination of Significant Effect – Criteria.

(a) An action may have a significant effect on the environment if it can reasonably be expected to lead to one of the following consequences:

   (1) a substantial adverse change to ambient air or water quality or noise levels or in solid waste production, drainage, erosion or flooding;

   (2) the removal or destruction of large quantities of vegetation or fauna, the substantial interference with the movement of any resident or migratory fish or wildlife species, impacts on critical habitat areas, or the substantial affecting of a rare or endangered species of animal or plant or the habitat of such a species;

   (3) the encouraging or attracting of a large number of people to a place or places for more than a few days relative to the number of people who would come to such a place absent the action;

   (4) the creation of a material conflict with a community’s existing plans or goals as officially approved or adopted;

   (5) the impairment of the character or quality of important historical, archeological, architectural or aesthetic resources (including the demolition or alteration of a structure which is eligible for inclusion in an official inventory of such resources), or of existing community or neighborhood character;

   (6) a major change in the use of either the quantity or type of energy;

   (7) the creation of a hazard to human health or safety;

   (8) a substantial change in the use or intensity of use of land or other natural resources or in their capacity to support existing uses, except where such a change has been included, referred to, or implicit in a broad “programmatic” EIS prepared pursuant to 43 RCNY § 6-13 of this chapter;

   (9) the creation of a material demand for other actions which would result in one of the above consequences;

   (10) changes in two or more elements of the environment, no one of which is substantial, but taken together result in a material change to the environment.

  1. [Reference to 43 RCNY § 6-15 Type II list, deemed to be State Type II list of 6 NYCRR Part 617.13. See City Planning Rules 43 RCNY § 5-02(b)(2).] For the purpose of determining whether an action will cause one of the foregoing consequences, the action shall be deemed to include other contemporaneous or subsequent actions which are included in any long-range comprehensive integrated plan of which the action under consideration is a part, which are likely to be undertaken as a result thereof, or which are dependent thereon. The significance of a likely consequence (i.e., where it is material, substantial, large, important, etc.) should be assessed in connection with its setting, its probability of occurring, its duration, its irreversibility, its controllability, its geographic scope and its magnitude (i.e., degree of change or its absolute size). 43 RCNY § 6-15 refers to lists of actions which are likely to have a significant effect on the environment and contains lists of actions found not to have a significant effect on the environment.

§ 6-07 Determination of Significant Effect – Notification.

(a) [Error. Reference to 43 RCNY § 6-05(a) should be to 43 RCNY § 6-05(b).] The lead agencies shall determine within 15 calendar days following notification of completion of the application pursuant to 43 RCNY § 6-05(a) whether the proposed action may have a significant effect on the environment;

   (1) [Reference to 43 RCNY § 6-15(b) Type II list, deemed to be State Type II list of 6 NYCRR Part 617.13. See City Planning Rules 43 RCNY § 5-02(b)(2).] In making their determination, the lead agencies shall employ the Environmental Assessment Form, apply the criteria contained in 43 RCNY § 6-06 and consider the lists of actions contained in 43 RCNY § 6-15;

   (2) The lead agencies may consult with, and shall receive the cooperation of any other agency before making their determination pursuant to this subdivision (a).

  1. The lead agencies shall provide written notification to the applicant immediately upon determination of whether the action may or will not have a significant effect on the environment. Such determination shall be in one of the following forms:

   (1) Negative Declaration. [Reference to 43 RCNY § 6-15, Type II list, deemed to be State Type II list of 6 NYCRR Part 617.13. See Rules 43 RCNY §§ 5-02(b)(2).] If the lead agencies determine that the proposed action is not an exempt action or a Type II action pursuant to 43 RCNY §§ 6-04 and 6-15, respectively, and that the action will not have a significant effect on the environment, they shall issue a Negative Declaration which shall contain the following information:

      (i) an action identifying number;

      (ii) a brief description of the action;

      (iii) the proposed location of the action;

      (iv) a statement that the lead agencies have determined that the action will not have a significant effect on the environment;

      (v) a statement setting forth the reasons supporting the lead agencies’ determination.

   (2) Conditional Negative Declaration. [Reference to 43 RCNY § 6-15, Type II list, deemed to be State Type II list of 6 NYCRR Part 617.13. See City Planning Rules 43 RCNY § 5-02(b)(2).] If the lead agencies determine that the proposed action is not an exempt action or a Type II action pursuant to 43 RCNY §§ 6-04 and 6-15, respectively, and that the action will not have a significant effect on the environment if the applicant modifies its proposed action in accordance with conditions or alternatives designed to avoid adverse environmental impacts, they shall issue a Conditional Negative Declaration impacts, they shall issue a Conditional Negative Declaration which shall contain the following information (in addition to the information required for a Negative Declaration pursuant to paragraph (1) of this subdivision):

      (i) a list of conditions, modifications or alternatives to the proposed action which supports the determination;

      (ii) the signature of the applicant or its authorized representative, accepting the conditions, modifications or alternatives to the proposed action;

      (iii) a statement that if such conditions, modifications or alternatives are not fully incorporated into the proposed action, such Conditional Negative Declaration shall become null and void. In such event, a Notice of Determination shall be immediately issued pursuant to paragraph (3) of this subdivision.

   (3) Notice of Determination. [Reference to 43 RCNY § 6-15 Type II list, deemed to be State Type II list of 6 NYCRR Part 617.13. See City Planning Rules 43 RCNY § 5-02(b)(2).] If the lead agencies determine that the proposed action is not an exempt action or a Type II action pursuant to 43 RCNY §§ 6-04 and 6-15, respectively, and that the action may have a significant effect on the environment, they shall issue a Notice of Determination which shall contain the following information:

      (i) an action description number;

      (ii) a brief description of the action;

      (iii) the proposed location of the action;

      (iv) a brief description of the possible significant effects on the environment of the action;

      (v) a request that the applicant prepare or cause to be prepared, at its option, a draft EIS in accordance with 43 RCNY §§ 6-08 and 6-12.

  1. [See additional circulation provisions, City Planning Rules 43 RCNY § 5-06(b) and 43 RCNY § 5-06(c). City Clerk function transferred to Office of Environ. Coord., City Planning Rules 43 RCNY §§ 5-02(b)(4).] The lead agencies shall make available for public inspection the Negative Declaration, Conditional Negative Declaration or the Notice of Determination, as the case may be, and circulate copies of the same to the applicant, the Regional Director of the DEC, the Commissioner of DEC, the appropriate Community Planning Board(s), the City Clerk, and all other agencies, including federal and state agencies, which may be involved in the proposed action.

§ 6-08 Draft Environmental Impact Statements – Responsibility for Preparation.

(a) Non-agency applicants.

   (1) [Rules add formal scoping, City Planning Rules 43 RCNY § 5-07. Interested and involved agencies assist with DEIS on request. See City Planning Rules 43 RCNY § 5-05(b)(2).] After receipt of a Notice of Determination pursuant to 43 RCNY § 6-07(c)(3), a non-agency applicant shall notify the lead agencies in writing as to whether it will exercise its option to prepare or cause to be prepared a draft EIS, and as to whom it has designated to prepare the draft EIS, provided that no person so designated shall have an investment or employment interest in the ultimate realization of the proposed action;

   (2) [See also City Planning Rules 43 RCNY § 5-05(b)(3) for requirements of lead consultation on mitigations.] The lead agencies may prepare or cause to be prepared a draft EIS for an action involving a non-agency applicant. In such event, the applicant shall provide, upon request, an environmental report to assist the lead agencies in preparing or causing to be prepared the draft EIS and such other information as may be necessary. All agencies shall fully cooperate with the lead agencies in all matters relating to the preparation of the draft EIS.

   (3) If the non-agency applicant does not exercise its option to prepare or cause to be prepared a draft EIS, and the lead agencies do not prepare or cause to be prepared such draft EIS, then the proposed action and review thereof shall terminate.

  1. Agency applicants.

   (1) When an action which may have a significant effect on the environment is initiated by an agency, the initiating agency shall be directly responsible for the preparation of a draft EIS. However, preparation of the draft EIS may be coordinated through the lead agencies.

   (2) [See City Planning Rules 43 RCNY § 5-05(b)(3)for requirements of lead consultation on mitigations.] All agencies, whether or not they may be involved in the proposed action, shall fully cooperate with the lead agencies and the applicant agency in all matters relating to the coordination of the preparation of the draft EIS.

  1. Notwithstanding the provisions contained in subdivisions (a) and (b) of this section, when a draft EIS is prepared, the lead agencies shall make their own independent judgment of the scope, contents and adequacy of such draft EIS.

§ 6-09 Environmental Impact Statements – Content.

(a) [Lead to be guided by technical standards and methodologies developed by Office of Environ. Coord., City Planning Rules 43 RCNY § 5-04(c).] Environmental impact statements should be clearly written in a brief and concise manner capable of being read and understood by the public. Within the framework presented in subdivision (d) of this section, such statements should deal only with the specific significant environmental impacts which can be reasonably anticipated. They should not contain more detail than is appropriate considering the nature and magnitude of the proposed action and the significance of its potential impacts.
  1. All draft and final EIS’s shall be preceded by a cover sheet stating:

   (1) whether it is a draft or a final;

   (2) the name or other descriptive title of the action;

   (3) the location of the action;

   (4) the name and address of the lead agencies and the name and telephone number of a person at the lead agencies to be contacted for further information;

   (5) identification of individuals or organizations which prepared any portion of the statement; and

   (6) the date of its completion.

  1. If a draft or final EIS exceeds ten pages in length, it shall have a table of contents following the cover sheet.
  2. The body of all draft and final EIS’s shall contain at least the following:

   (1) a description of the proposed action and its environmental setting;

   (2) a statement of the environmental impacts of the proposed action, including its short-term and long-term effects, and typically associated environmental effects;

   (3) an identification of any adverse environmental effects which cannot be avoided if the proposed action is implemented;

   (4) a discussion of the social and economic impacts of the proposed action;

   (5) a discussion of alternatives to the proposed action and the comparable impacts and effects of such alternatives;

   (6) an identification of any irreversible and irretrievable commitments of resources which would be involved in the proposed action should it be implemented;

   (7) a description of mitigation measures proposed to minimize adverse environmental impacts;

   (8) a description of any growth-inducing aspects of the proposed action, where applicable and significant;

   (9) a discussion of the effects of the proposed action on the use and conservation of energy, where applicable and significant;

   (10) a list of underlying studies, reports or other information obtained and considered in preparing the statement; and

   (11) (for the final EIS only) copies or a summary of the substantive comments received in response to the draft EIS and the applicant’s response to such comments.

  1. An EIS may incorporate by reference all or portions of other documents which contain information relevant to the statement. The referenced documents shall be made available to the public in the same places where copies of the statement are made available. When a statement uses incorporation by reference, the referenced document shall be briefly described and its date of preparation provided.

§ 6-10 Draft Environmental Impact Statements – Procedures.

(a) Notice of Completion. Upon the satisfactory completion of a draft EIS, the lead agencies shall immediately prepare, file and make available for public inspection a Notice of Completion as provided in paragraphs (1), (2) and (3) of this subdivision. Where a proposed action is simultaneously subject to the Uniform Land Use Review Procedure ("ULURP"), the City Planning Commission shall not certify an application pursuant to ULURP until a Notice of Completion has been filed as provided in paragraph (3) of this subdivision.

   (1) Contents of Notice of Completion. All Notices of Completion shall contain the following:

      (i) an action identifying number;

      (ii) a brief description of the action;

      (iii) the location of the action and its potential impacts and effects; and

      (iv) a statement that comments on the draft EIS are requested and will be received and considered by the lead agencies at their offices. The Notice shall specify the public review and comment period on the draft EIS, which shall be for not less than 30 calendar days from the date of filing and circulation of the notice, or not less than 10 calendar days following the close of a public hearing on the draft EIS, whichever last occurs.

   (2) Circulating Notice of Completion. All Notices of Completion shall be circulated to the following:

      (i) all other agencies, including federal and state agencies, involved in the proposed action;

      (ii) all persons who have requested it;

      (iii) the editor of the State Bulletin;

      (iv) the State clearinghouse;

      (v) the appropriate regional clearinghouse designated under the Federal Office of Management and Budget Circular A-95.

   (3) Filing Notice of Completion. All Notices of Completion shall be filed with and made available for public inspection by the following:

      (i) the Commissioner of DEC;

      (ii) the Regional Director of DEC;

      (iii) the agency applicant, where applicable;

      (iv) the appropriate Community Planning Board(s);

      (v) the City Clerk;

      (vi) the lead agencies.

  1. Filing and availability of draft EIS. [City Clerk function transferred to OEC, City Planning Rules 43 RCNY § 5-02(b)(4).] All draft EIS’s shall be filed with and made available for public inspection by the same persons and agencies with whom Notices of Completion must be filed pursuant to paragraph (a)(3) of this section.
  2. Public hearings on draft EIS.

   (1) Upon completion of a draft EIS, the lead agencies shall conduct a public hearing on the draft EIS.

   (2) The hearing shall commence no less than 15 calendar days or more than 60 calendar days after the filing of a draft EIS pursuant to subdivision (b) of this section, except where a different hearing date is required as appropriate under another law or regu- lation.

   (3) Notice of the public hearing may be contained in the Notice of Completion or, if not so contained, shall be given in the same manner in which the Notice of Completion is circulated and filed pursuant to subdivision (a) of this section. In either case, the notice of hearing shall also be published at least 10 calendar days in advance of the public hearing in a newspaper of general circulation in the area of the potential impact and effect of the proposed action.

   (4) Where a proposed action is simultaneously subject to ULURP, a public hearing conducted by the appropriate community or borough board and/or the City Planning Commission pursuant to ULURP shall satisfy the hearing requirement of this section. Where more than one hearing is conducted by the aforementioned bodies, whichever hearing last occurs shall be deemed the hearing for purposes of this chapter.

§ 6-11 Final Environmental Impact Statements – Procedures.

(a) [Interested and involved agencies assist with FEIS on request, City Planning Rules 43 RCNY § 5-05(b)(2).] Except as provided in paragraph (1) of this subdivision, the lead agencies shall prepare or cause to be prepared a final EIS within 30 calendar days after the close of a public hearing.

   (1) If the proposed action has been withdrawn or if, on the basis of the draft EIS and the hearing, the lead agencies have determined that the action will not have a significant effect on the environment, no final EIS shall be prepared. In such cases, the lead agencies shall prepare, file and circulate a Negative Declaration as prescribed in 43 RCNY § 6-07.

   (2) The final EIS shall reflect a revision and updating of the matters contained in the draft EIS in light of further review by the lead agencies, comments received and the record of the public hearing.

  1. Immediately upon the completion of a final EIS, the lead agencies shall prepare, file, circulate and make available for public inspection a Notice of Completion of a final EIS in a manner specified in 43 RCNY § 6-11(a), provided, however, that the Notice shall not contain the statement described in subparagraph (a)(1)(iv) of such section.
  2. Immediately upon completion of a final EIS, copies shall be filed and made available for public inspection in the same manner as the draft EIS pursuant to 43 RCNY § 6-11(b).

§ 6-12 Agency Decision Making.

(a) No final decision to carry out or approve an action which may have a significant effect on the environment shall be made until after the filing and consideration of a final EIS.

   (1) [Inapplicable, City Planning Rules, 43 RCNY § 5-02(a).]Except as provided in paragraph (2) of this subdivision where a final decision whether or not to carry out or approve an action is required by law to be made by any agency, such decision shall be made within 30 calendar days of the filing of a final EIS.

   (2) [Inapplicable, City Planning Rules, 43 RCNY § 5-02(a).]Where a proposed action is simultaneously subject to ULURP, the final decision whether or not to carry out or approve the action shall be made by the Board of Estimate or its successor agency within 60 calendar days of the filing of the final EIS.

  1. When an agency decides to carry out or approve an action which may have a significant effect on the environment, it shall make the following findings in a written decision:

   (1) consistent with social, economic and other essential considerations of state and city policy, from among the reasonable alternatives thereto, the action to be carried out or approved is one which minimizes or avoids adverse environmental effects to the maximum extent possible, including the effects disclosed in the relevant environmental impact statement;

   (2) consistent with social, economic and other essential considerations of state and city policy, all practicable means will be taken in carrying out or approving the action to minimize or avoid adverse environmental effects.

  1. For public information purposes, a copy of the Decision shall be filed in the same manner as the draft EIS pursuant to 43 RCNY § 6-11(b).

§ 6-13 Programmatic Environmental Impact Statements.

(a) Whenever possible, agencies shall identify programs or categories of actions, particularly projects or plans which are wide in scope or implemented over a long time frame, which would most appropriately serve as the subject of a single EIS. Broad program statement, master or area wide statements, or statements from comprehensive plans are often appropriate to assess the environmental effects of the following;

   (1) a number of separate actions in a given geographic area;

   (2) a chain of contemplated actions;

   (3) separate actions having generic or common impacts;

   (4) programs or plans having wide application or restricting the range of future alternative policies or projects.

  1. No further EIS’s need be prepared for actions which are included in a programmatic EIS prepared pursuant to subdivision (a) of this section. However:

   (1) a programmatic EIS shall be amended or supplemented to reflect impacts which are not addressed or adequately analyzed in the EIS as originally prepared; and

   (2) actions which significantly modify a plan or program which has been the subject of an EIS shall require a supplementary EIS;

   (3) programmatic EIS’s requiring amendment and actions requiring supplementary EIS’s pursuant to this section shall be processed in full compliance with the requirements of this chapter.

§ 6-14 Rules and Regulations.

[Inapplicable, City Planning Rules 43 RCNY § 5-02(a).]The lead agencies shall promulgate such rules, regulations, guidelines, forms and additional procedures as may be necessary to implement this chapter.

§ 6-15 Lists of Actions.

(a) Type I. [See City Planning Rules 43 RCNY § 5-02(d).] Type I actions enumerated in § 617.12 of 6 NYCRR 617 are likely to, but will not necessarily, require the preparation of an EIS because they will in almost every instance significantly affect the environment. However, ministerial actions never require the preparation of an EIS except where such actions may directly affect a critical area or an historic resource enumerated in paragraphs (22) and (23), respectively, of subdivision (a) of § 617.12. In addition, for the purpose of defining paragraph (2) of said subdivision and section, the following thresholds shall apply:

   (1) relating to public institutions:

      (i) new correction or detention centers with an inmate capacity of at least 200 inmates;

      (ii) new sanitation facilities, including:

         (A) incinerators of at least 250 tons per day capacity;

         (B) garages with a capacity of more than 50 vehicles;

         (C) marine transfer stations;

      (iii) new hospital or health related facilities containing at least 100,000 sq. ft. of floor area;

      (iv) new schools with seating capacity of at least 1,500 seats;

      (v) any new community or public facility not otherwise specified herein, containing at least 100,000 sq. ft. of floor area, or the expansion of an existing facility by more than 50 percent of size or capacity, where the total size of an expanded facility exceeds 100,000 sq. ft. of floor area.

   (2) relating to major office centers: any new office structure which has a minimum of 200,000 sq. ft. of floor area and exceeds permitted floor area under existing zoning by more than 20 percent, or the expansion of an existing facility by more than 50 percent of floor area, where the total size of an expanded facility exceeds 240,000 sq. ft. of floor area.

  1. Type II.

   (1) [See City Planning Rules 43 RCNY § 5-02(d).] Type II actions will never require the preparation of an EIS because they are determined not to have a significant effect on the environment, except where such actions may directly affect a critical area or an historic resource enumerated in paragraphs (22) and (23), respectively, of subdivision (a) of § 617.12 of 6 NYCRR 617.

   (2) [Inapplicable. Replaced by State Type II list 6 NYCRR Part 617.13. See City Planning Rules 43 RCNY § 5-02(a) and 43 RCNY § 5-02(b)(2).] Pursuant to SEQRA, as amended, a list of Type II actions shall be promulgated prior to July 1, 1978, to become effective on September 1, 1978.

Effective Date.[See new City Planning transition Rules 43 RCNY § 5-08 and 43 RCNY § 5-11. New Rules effective Oct. 1, 1991.]

Chapter 8: Premiere Permits and Fees

§ 8-01 Premiere Permits Relating to Certain Entertainment Events.

The Mayor’s Office of Film, Theatre & Broadcasting (“MOFTB”) shall issue Premiere Permits in connection with certain entertainment events held in New York City. These include special events associated with movie premieres, theatre openings, and other similar events held with respect to films, television commercials and radio productions. Premiere Permits for such events may, at the discretion of the Commissioner of MOFTB and, as indicated below, be issued to individuals or commercial entities.

§ 8-02 Definitions.

For purposes of this chapter, the following terms shall have the following meanings:

  1. Sponsor or applicant. “Sponsor” or “applicant” shall mean the individual or commercial entity named in an application for a Premiere Permit, which application shall be submitted on forms prescribed by the Commissioner of MOFTB.
  2. Extra large event. “Extra large event” shall mean an event (1) for which there is an anticipated attendance of 5,000 or more people; and (2) that has an extensive impact on the surrounding community and/or on vehicular/pedestrian traffic, in that they include obstructions or structures such as any temporary platforms, bleachers, reviewing stands, outdoor bandstands or similar structures, or tents or canopies that require a Department of Buildings permit. This may involve, but is not limited to, significant coordination by other City agencies, including permitting agencies; a large and/or complicated permitting role by the Department of Buildings; full closure of streets and/or sidewalks; and extensive coordination between MOFTB, the Office of Citywide Events Coordination and Management (“CECM”), the Police Department, the Fire Department, and other City agencies as appropriate.
  3. Large event. “Large event” shall mean an event (1) for which there is an anticipated attendance of fewer than 5,000 people; and (2) that has an extensive impact on the surrounding community and/or on vehicular/pedestrian traffic, in that they include obstructions or structures such as any temporary platforms, bleachers, reviewing stands, outdoor bandstands or similar structures, or tents or canopies that require a Department of Buildings permit. This may involve, but is not limited to, coordination by other City agencies, including permitting agencies; full closure of streets and/or sidewalks; and coordination between MOFTB, CECM, and other City agencies as appropriate.
  4. Medium event. “Medium event” shall mean an event (1) for which there is an anticipated attendance of fewer than 1,500 people; and (2) that has an impact on pedestrian and/or vehicular traffic, and may include the presence of an obstruction such as a press riser, stage, table or other structure. Such events require coordination between MOFTB, CECM, the Police Department, and the Department of Transportation, but would require minimal involvement of the Department of Buildings or the Fire Department.
  5. Small event. “Small event” shall mean an event (1) for which there is an anticipated attendance of fewer than 1,000 people; and (2) that occupies a period of time that does not exceed four hours and has moderate impact on pedestrian and/or vehicular traffic. Such events require some degree of coordination between MOFTB, the Department of Transportation and the Police Department.
  6. Extra small event. “Extra small event” shall mean an event (1) for which there is an anticipated attendance of fewer than 500 people; and (2) that occupies a period of time that does not exceed four hours and has low or no impact on pedestrian and/or vehicular traffic. Such events require little or no coordination between MOFTB and other City agencies.

§ 8-03 Fees.

(a)  MOFTB shall determine which fee category is appropriate for a proposed event. Fees are based on the City resources required as determined by the anticipated attendance at events to be held, and permits will authorize activities including, for example, the placement of a "red carpet", the setting aside of a "limousine lane", or the siting of a tent or other structure. Fees shall be paid in the form of a certified check or money order made payable to "New York City Department of Finance" or, if available as a payment method, through the use of a credit or debit card. Fees shall be non-refundable, and payment shall accompany each application for a Premiere Permit as follows:

   (1) For an extra large event: $24,000.00.

   (2) For a large event: $14,000.00.

   (3) For a medium event: $5,000.00.

   (4) For a small event: $2,750.00.

   (5) For an extra small event: $450.00.

  1. Each fee described in subdivision (a) of this section includes permission to use the following:

   (1) One curb lane closure.

   (2) One red carpet.

   (3) One press pen.

   (4) One generator.

   (5) One klieg light.

   (6) One tent (10 feet by 20 feet).

§ 8-04 Processing of Premiere Permits.

(a)  Applications for Premiere Permits shall be submitted to the MOFTB no later than fourteen (14) days prior to the date of the event. Upon receipt of an application, MOFTB shall forward it to CECM, which shall notify and consult, as appropriate, with the Police Department, the Fire Department, the Department of Transportation, and the Department of Sanitation. CECM shall consider information, if any, submitted by any of the foregoing agencies in connection with such notification and shall attempt to resolve any issues in connection with the issuing of a permit.
  1. CECM shall review the Premiere Permit to determine if there are conflicting scheduled activities. Where such exist, CECM shall make recommendations regarding ways to resolve them, and shall forward such recommendations to MOFTB. Prior to issuing a Premiere Permit, MOFTB and CECM shall have resolved any outstanding scheduling issues.
  2. At any time during the review of an application for a Premiere Permit, the applicant or sponsor may be required to submit such additional information as is deemed necessary, during evaluation of the application or the particular facts surrounding the proposed event that is the subject of the permit request.
  3. MOFTB shall have the authority to deny an application, to condition the approval of an application, or to revoke a Premiere Permit, based on the past or present failure of the applicant or sponsor

   (1) to make payment of the application fee; or

   (2) to present proof that all necessary and proper licenses, permits or authorizations have been received; or

   (3) to comply with applicable laws or rules; or

   (4) to comply with a condition imposed on a permit issued previously to the applicant or sponsor.

  1. CECM shall have the authority to recommend denial of an application, the conditioning of approval of an application, or revocation of a Premiere Permit on any or all of the following grounds:

   (1) any of the City or other government agencies which were notified of the Premiere Permit application had reason to raise objections regarding the permit request; or

   (2) the proposed activity, when considered in conjunction with other proposed activities, would produce an excessive burden on the community, City services or City personnel; or

   (3) approval of the application is not in the best interest of the community, the City or the general public for reasons that may include, but are not limited to, honesty, integrity or financial responsibility of the sponsor.

  1. Upon completing its review of a Premiere Permit application, CECM shall indicate its recommendation on the MOFTB permit application and shall return such form to MOFTB.
  2. Permits received pursuant to this section shall be non-transferable.

Chapter 9: Permits Issued By Mayor’s Office of Film, Theatre and Broadcasting

§ 9-01 Permits for Scouting, Rigging and Production Activities.

(a)  Scope of Rules. The Mayor's Office of Film Theatre and Broadcasting ("MOFTB") shall issue permits in connection with filming, including but not limited to the taking of motion pictures; the taking of photographs; the use and operation of television cameras, transmitting television equipment, or radio remotes in or about city property; load-ins or load-outs supporting indoor performances; or such activities in or about any street, park, marginal street, pier, wharf, dock, bridge or tunnel within the jurisdiction of any City department or agency, or involving the use of any City owned or maintained facilities or equipment. As defined herein, MOFTB will issue permits for scouting, rigging and shooting activities. Obtaining such a permit does not obviate the need to comply with other applicable laws, rules or case law also governing such activity.
  1. Required and Optional Permits. Unless a permit is designated in these rules as an “Optional Permit”, the use of the term “permit” herein shall be deemed to be a “Required Permit”.

   (1) Required Permits. a.  The following activities require that a permit be obtained pursuant to this chapter: (i)  Filming, photography, production, television or radio remotes occurring on City property, as described in subdivision (a) of this section, that uses vehicles or equipment.

      (ii) Filming, photography, production, television or radio remotes occurring on City property, as described in subdivision (a) of this section, (A) if such activity involves the assertion by any means, including physical or verbal, of exclusive use of one or more lanes of a street or walkway of a bridge or (B) if such activity involves the assertion by any means, including physical or verbal, of exclusive use of more than one-half of a sidewalk or other pedestrian passageway or, in a situation in which the sidewalk or pedestrian passageway is narrower than sixteen feet, if such activity involves the assertion by any means, including physical or verbal, of exclusive use of the sidewalk or pedestrian passageway such that less than eight feet is otherwise available for pedestrian use. For purposes of this subparagraph, standing on a street, walkway of a bridge, sidewalk, or other pedestrian passageway while using a handheld device and not otherwise asserting exclusive use by any means, including physical or verbal, is not activity that requires a permit. b.  The following activities do not require that a permit be obtained pursuant to this chapter:

      (i) Filming, photography, production, television or radio remotes occurring on City property, as described in subdivision (a) of this section, involving the use of handheld devices as defined in paragraph three of subdivision (a) of 43 RCNY § 9-02, (A) if such activity does not involve the assertion by any means, including physical or verbal, of exclusive use of one or more lanes of a street or walkway of a bridge or (B) if such activity does not involve the assertion by any means, including physical or verbal, of exclusive use of more than one-half of a sidewalk or other pedestrian passageway or, in a situation in which the sidewalk or pedestrian passageway is narrower than sixteen feet, does not involve the assertion by any means, including physical or verbal, of exclusive use of the sidewalk or pedestrian passageway such that less than eight feet is otherwise available for pedestrian use. For purposes of this subparagraph, standing on a street, walkway of a bridge, sidewalk, or other pedestrian passageway while using a handheld device and not otherwise asserting exclusive use by any means, including physical or verbal, is not activity that requires a permit.

      (ii) Filming or photography of a parade, rally, protest, or demonstration except when using vehicles or equipment.

   (2) Optional Permits: Persons who are engaged in filming or still photography and are not otherwise required to obtain a permit pursuant to paragraph (1) of subdivision (b) of this section may be issued an Optional Permit. a.  Persons requesting such an Optional Permit shall provide accurate information concerning their postal address and, if available, e-mail address, telephone number and fax number; and accurate information as to the location(s) of such activities, the date(s) and time(s) during which such activities are proposed to take place. b.  MOFTB shall process Optional Permit requests in accordance with the provisions of paragraphs four, five, six, seven, eight, nine and ten of subdivision (b) of 43 RCNY § 9-02.

  1. Press passes. The use of a press pass issued by the New York City Police Department (“NYPD”) in accordance with 38 RCNY Chapter 11 (“Press Credentials”), where an individual is acting in furtherance of the activity authorized by such press pass, and is engaged in filming as defined in these rules, does not require that a permit be obtained pursuant to this chapter.
  2. Authorization from other agencies: Notwithstanding the provisions of subdivision (a) of this section, scouting, rigging or shooting activities within City parks or the interiors of City buildings, bridges or tunnels require, if applicable, separate authorization from the City agency with jurisdiction over the location. The use of certain items or activities, including but not limited to animals, firearms (actual or simulated), special effects, pyrotechnics, police uniforms, police vehicles, driving shots with tow or camera rigs, and conditions that require holding of traffic may require authorization and/or assistance from the relevant government agency.

§ 9-02 Processing of Permit Applications.

(a)  Definitions. For purposes of this chapter, the following terms shall have the following meanings:

   (1) “Equipment” shall include, but is not limited to, television, photographic, film or videocameras or transmitting television equipment, including radio remotes, props, sets, lights, electric and grip equipment, dolly tracks, screens, or microphone devices, and any and all production related materials. “Equipment” shall not include (a) “hand-held devices,” as defined in paragraph (3) of this subdivision, and (b) vehicles, as defined in section one hundred fifty-nine of the New York vehicle and traffic law, that are used solely to transport a person or persons while engaged in the activity of filming or photography from within such vehicle, operated in compliance with relevant traffic laws and rules.

   (2) “Filming” shall mean the taking of motion pictures, the taking of still photography or the use and operation of television cameras or transmitting television equipment, including radio remotes and any preparatory activity associated therewith, and shall include events that include, but are not limited to, the making of feature or documentary films, television serials, webcasts, simulcasts or specials.

   (3) “Hand-held devices” shall mean (a) film, still or television cameras, videocameras or other equipment which are held in the photographer’s or filmmaker’s hand and carried at all times with the photographer or filmmaker during the course of filming, or (b) tripods used to support film, still, television cameras or videocameras. Hand-held devices shall not include cables or any other item or equipment not carried by the photographer or filmmaker at all times during the course of photography, filming or transmission.

   (4) “New Project Account application” shall mean a request submitted on an MOFTB form by an applicant indicating that the applicant intends to request one or more permits for scouting, rigging and/or shooting activities.

   (5) “Photography” shall mean the taking of moving or still images.

   (6) “Pre-permit reserve” shall mean the designation by MOFTB, at the request of a permit applicant, of a location(s) where the applicant intends to conduct rigging or shooting activities.

   (7) “Rigging/de-rigging” shall mean the loading in or loading out, loading or unloading, of any shooting or production related equipment, including but not limited to props, sets, electric and grip equipment, at any location, time and date where film or theatrical production is not occurring.

   (8) “Same date” shall mean the same actual calendar date (numerical date and month) or the same day of the same week in a given month, as relevant. For example, “same date” shall encompass the date July 11 as well as the second Sunday in the month of July, as relevant.

   (9) “Same location” shall mean the location identified in the rigging permit or the filming permit application.

   (10) “Scouting” shall mean the act of viewing, assessing and photographing locations for filming or photography during pre-production or production for, including, but not limited to, still photography, feature films, television series, mini-series or specials.

   (11) “Shooting” shall include (a) filming interiors or exteriors, and (b) theatrical productions whose performances are presented indoors.

  1. New Project Account application and Permit application for scouting, rigging and/or shooting activities.

   (1) The following steps shall be taken to obtain a scouting, rigging, and/or shooting permit:

      a. Submission of a New Project Account application to MOFTB.

         (i) For any activity needing a Required Permit, a New Project Account application shall be valid for the duration of continuous photography.

         (ii) For a television series, such application shall be valid for no more than one season.

         (iii) For a special event produced by a television program, including but not limited to a concert or street event involving an outdoor public audience, a separate New Project Account application shall be required. If such special event requires a Premiere Permit as set forth in chapter 8 of this title, a separate New Project Account application will not be required.

      b. A New Project Account application, when submitted in connection with a Required Permit, shall be accompanied by a non-refundable fee of $300.00, paid in the form of a certified check or money order and made payable to “New York City Department of Finance.” An applicant may make a request for a waiver of such fee, which shall accompany the application when submitted. MOFTB shall have the authority to waive such fee where the applicant is able to demonstrate unreasonable hardship. The burden of demonstrating unreasonable hardship shall be on the applicant.

      c. At the same time, or some time thereafter, an applicant shall seek a scouting, rigging, and/or shooting permit.

      d. At the same time, or prior thereto, the applicant shall have obtained and provided to MOFTB a certificate of insurance for a policy that reflects the requirements contained in 43 RCNY § 9-03.

   (2) New Project Account Application contents. Applicants shall complete an application, on a form prescribed by MOFTB, which shall contain detailed identifying information about the applicant and the project. In completing such form, applications shall provide the information set forth below.

      a. A postal address (but not a post office box) and, if available, an e-mail address, a telephone number and a facsimile number for purposes of receiving notification from MOFTB.

      b. Valid photo identification of the applicant or, if the applicant is not a natural person, a valid photo identification of the natural person authorized by the applicant to act on its behalf in connection with the application.

      c. If known at the time of the application, the dates and times of scouting, rigging or shooting and location of such activity, and any special circumstances including, but not limited to, information regarding whether the activity involves special parking requests, traffic control issues or special effects.

      d. Film school students shall provide a letter from the student’s school confirming insurance coverage, and the student’s current enrollment, subject to the provisions of 43 RCNY § 9-03.

   (3) Scouting, Rigging and/or Shooting Permit Applications. When applicants submit a scouting, rigging and/or shooting permit application, on a form prescribed by MOFTB, they shall:

      a. identify the date(s), time(s) and location(s) of such activity;

      b. identify any special circumstances including, but not limited to, information regarding whether the activity involves special parking requests, traffic control issues or special effects;

      c. for applicants requesting a scouting permit, provide a letter from the applicant’s producing/financing entity verifying the project by name and identifying the natural person(s) on-site who will be performing scouting activities on behalf of the applicant;

      d. for applicants requesting a scouting permit, provide documents of incorporation, financing documents for the project or grant or foundation award letter.

   (4) Processing of Permits. All permit applications will be processed on a “first come, first served” basis. Upon request by an applicant for a Required Permit, MOFTB will place a pre-permit reserve on the location(s) identified in the New Project Account application or the rigging and/or shooting application. An applicant can request such pre-permit reserve no more than three weeks in advance of the activity, but upon a need demonstrated in writing by the applicant, MOFTB may grant a greater period of time. If two or more permit applicants request the same date and the same location, the New Project Account application request that was received first shall be first eligible for approval.

   (5) MOFTB shall respond to the applicant with one of the responses enumerated in subparagraphs a through c of paragraph (6) of this section in accordance with the following schedule:

      a. for applications filed 45 days or more prior to the date for which such permit is sought, MOFTB shall respond no later than 30 days after the receipt of such applications;

      b. for applications filed less than 45 days but more than 15 days prior to the date for which such permit is sought, MOFTB shall respond no later than ten days after the receipt of such applications; or

      c. for applications filed 15 days or less prior to the date for which such permit is sought, MOFTB shall respond as soon as is reasonably practicable.

      d. No application may be filed more than sixty days prior to the date of the requested event, unless special circumstances are presented to the commissioner or her designee for approval.

   (6) Determination upon review of application. Following receipt of an application, the MOFTB will make one or more of the following determinations:

      a. issuance of the particular permit.

      b. written notification that more information is needed before MOFTB can make a determination as to a particular permit application.

      c. written notification that the particular permit application has been denied and a statement of the reason or reasons pursuant to paragraph (7) of this subdivision for such denial.

   (7) Denial of new project account applications or scouting, rigging, and/or shooting permit application. MOFTB may deny a permit if any one or more of the following issues exists:

      a. conditions exist that may pose a danger or a threat to participants, onlookers or the general public;

      b. the location sought is not suitable because the proposed use cannot reasonably be accommodated in the proposed location;

      c. the date and time requested for a particular location is not available because (i) a permit has previously been issued for such date and time, or (ii) the permit request is the subject of a new project account application, as provided in paragraph (4) of this subdivision, or (iii) another City agency has issued a permit for such date or time;

      d. MOFTB has concluded, based on specific information, that the applicant is unlikely to comply with the material terms of the requested permit;

      e. use of the location or the proposed activity at the location would otherwise violate any law, ordinance, statute or regulation;

      f. use of the location would interfere unreasonably with the operation of City functions.

   (8) If the permit has been denied pursuant to subparagraphs a, b, c, e (with respect to location) or f of paragraph (7) of this subdivision, MOFTB shall employ reasonable efforts to offer the applicant suitable alternative locations and/or times and/or dates for the proposed rigging or shooting. If the permit has been denied pursuant to subparagraph d, the MOFTB may consider whether special conditions may be placed or whether additional steps can be taken to address its concern about potential non-compliance.

   (9) The denial of a permit shall be in writing and shall contain information about the right to appeal such denial unless the applicant, in its application, authorizes MOFTB to issue an oral determination in connection with the filing of the application. Subsequent to the filing of such application, an applicant may request a written determination upon notifying MOFTB in writing that such applicant now seeks a written determination. Upon receiving such request for a written determination, MOFTB shall respond in accordance with the requirements of paragraph (5) of this subdivision, such time to respond commencing on the date of receipt by MOFTB of the notification.

   (10) After a permit application is denied, the applicant may appeal a written determination by written request filed with the appeals officer who may reverse, affirm, or modify the original determination and provide a written explanation of his or her finding.

      a. If a permit application is denied more than 30 days prior to the proposed scouting, rigging or shooting, the applicant shall have 10 days from the date that such denial is e-mailed or faxed to the applicant to appeal such denial. MOFTB shall render a decision on such appeal within 10 days of receipt of such appeal.

      b. If a permit application is denied more than 10 days and less than 30 days prior to the proposed scouting, rigging or shooting, the applicant shall have 5 days from the date such denial is e-mailed or faxed to the applicant to appeal such denial. MOFTB shall render a decision on such appeal within 5 days of receipt of such appeal.

      c. If a permit application is denied 10 days or less prior to the proposed scouting, rigging or shooting, the applicant shall have one day from the date such denial is e-mailed or faxed to the applicant to appeal such denial. MOFTB shall render a decision on such appeal as soon as is reasonably practicable.

  1. Responsibilities of Holders of Required and Optional Permits.

   (1) Rules: All permittees are subject to the rules of MOFTB, the specific terms and conditions of the permit, and all applicable city, state, and federal laws or rules. Nothing herein is intended to authorize activities that are illegal under any applicable city, state or federal law or rule, except that permittees may engage in such conduct as is expressly authorized by the permit issued to them.

   (2) Display of permit: All permittees shall have the permit in their possession on location at the time and site of the scouting, rigging or shooting, as well as any other permits required by MOFTB or any other governmental agency, and shall make such permit available for inspection at the request of an employee of the Police Department or other government agency.

   (3) Permit restrictions: All permittees shall confine their activities to the locations and times specified on their permit. MOFTB may establish specific guidelines to address conditions that exist at certain designated locations and the use of vehicles and equipment at locations based on, among other considerations, the time of day, weather conditions, season, location, and day of the week.

   (4) Non-transferability: Required Permits and Optional Permits are not transferable.

   (5) Clean-up: All permittees are responsible for cleaning and restoring the site after the rigging or shooting. The cost of any City employee time incurred because of a permittee’s failure to clean and/or restore the site following the rigging or shooting will be borne by the permittee.

   (6) Accidents or injuries: Should there be any injuries, accidents, other health incidents or damage to private or City property at a permitted event, the permittee shall notify MOFTB immediately.

   (7) Vehicle Parking: Only vehicles with permits issued by MOFTB will be allowed to park in areas designated for the rigging or shooting activity at the time(s) and location(s) described in the applicable permit.

   (8) Dolly track or other equipment: No dolly track or other equipment may be laid across a street or block a fire lane without prior approval of MOFTB and NYPD.

   (9) Pyrotechnics: The use of pyrotechnics, fire effects and explosions, including simulated smoke and smoke effects, shall be conducted only upon authorization by the New York City Fire Department and subsequent approval shall be obtained from MOFTB and the NYPD prior to shooting.

   (10) Animals: The use of wild animals, as defined in 24 RCNY Health Code § 161.02, shall be used only upon authorization by the Department of Health and Mental Hygiene, and subsequent approval shall be obtained from MOFTB prior to shooting.

   (11) Potentially dangerous activities: Conduct or activities associated with rigging or shooting permits which are determined by MOFTB to cause a potential danger to persons or property will be referred by MOFTB for approval by the NYPD or other governmental agency having jurisdiction over such activity. Such activities shall include, but not be limited to, the use of stunts, helicopters, firearms or simulated firearms.

   (12) Traffic control: Where a public street is closed in connection with rigging or production activities, a 13.5-foot lane shall be kept open. Such requirement may be waived by MOFTB upon an appropriate showing of need or at the discretion of the NYPD.

   (13) Trees and plantings: Trimming, damaging, removing or cutting trees or vegetation on City property is prohibited without the prior approval of the New York City Department of Parks and Recreation.

   (14) Street structures: No street signs, lights, postal boxes, parking meters or any other permanent street structure may be removed or altered without the prior approval of the New York City Department of Transportation or other agency charged with maintaining such structures.

   (15) Production location access: If determined by MOFTB to be appropriate, permittees shall submit a mitigation plan for minimizing the potential inconvenience to residents and/or businesses caused by rigging or shooting activities.

   (16) Food services: There shall be no sit-down catered meals permitted on public streets or sidewalks.

   (17) Code of Conduct: MOFTB shall issue a location Code of Conduct that addresses the importance of considerate behavior on the set of all rigging and shooting activities. A copy of the Code of Conduct shall be given to holders of Required and Optional Permits under these rules. The permittee is responsible for providing a copy of the Code of Conduct to the cast and crew of each permitted rigging or shooting activity. Permittees shall be required to encourage participants in the permitted event to act in accordance with such code.

  1. Modifications to or Suspension of Required or Optional Permit.

   (1) If a permittee seeks to modify its permit, it shall submit an addendum to its original request, which will be governed by the same timetable as provided in paragraph (5) of subdivision (b) of this section.

   (2) If MOFTB determines that modifications should be made to the terms or conditions of any permit, or that a permit should be revoked, after notice and opportunity to be heard, MOFTB may do so, based upon reasons set forth in paragraph (7) of subdivision (b) of this section.

   (3) If MOFTB revokes any permit prior to the date of the scouting, rigging or shooting, the permittee may appeal the revocation, subject to the time limitations set forth in paragraph (10) of subdivision (b) of this section.

   (4) During the course of scouting, rigging or shooting, MOFTB or the NYPD may suspend any permit where public health or safety risks are found or where exigent circumstances warrant such action. Where a suspension lasting longer than six hours occurs, permittees shall be given notice and an opportunity to be heard within ten days after the suspension.

§ 9-03 Indemnification and Insurance.

(a)  By accepting a permit, a permittee agrees to protect all persons and property from damage, loss or injury arising from any of the operations performed by or on behalf of the permittee, and to indemnify and hold harmless the City, to the fullest extent permitted by law, from all claims, losses and expenses, including attorneys' fees, that may result therefrom. This indemnification requirement does not apply to any person or entity acting with an Optional Permit in accordance with 43 RCNY § 9-01(b)(2).
  1. Every holder of a Required Permit shall maintain, during the entire course of its operations, commercial general liability insurance with a limit of at least one million dollars ($1,000,000) per occurrence. Such insurance shall include a policy endorsement naming the City of New York as an additional insured with coverage at least as broad as provided by Insurance Services Office (ISO) form CG 20 26. The applicant shall provide proof of such insurance prior to the issuance of the permit by submitting a Certificate of Insurance in a form acceptable to the Commissioner certifying compliance with the foregoing requirements, accompanied by a duly executed Certification by Broker in the form required by the Commissioner. Acceptance by the Commissioner of any purported proof of insurance shall not be deemed to constitute a waiver of the permittee’s obligation to ensure that insurance fully consistent with these requirements is secured and maintained, and the permittee shall be liable to the City of New York for any failure to do so. For currently enrolled film students, proof of insurance through their school and the student’s current attendance shall satisfy this requirement. This insurance requirement does not apply to any person or entity holding an Optional Permit issued in accordance with 43 RCNY § 9-01(b)(4).
  2. If MOFTB determines, in light of the activity for which a permit is sought, that such activity may increase the potential for injury to individuals and/or damage to property, and that the minimum limit of insurance should be higher than one million dollars ($1,000,000) per occurrence, MOFTB shall determine what higher minimum limit is to be required and inform the applicant of such higher limit. Factors to be considered by MOFTB may include, but shall not be limited to, the number of people involved, the location of the activity and the nature of the activity. The applicant shall thereafter provide proof of such insurance in accordance with subdivision (b) of this section. If MOFTB determines in writing that a higher minimum limit is to be required, the applicant may appeal such determination by written request filed with the MOFTB appeals officer who may reverse, affirm, or modify the determination and provide a written explanation of his or her finding.
  3. (1)  MOFTB shall have the authority to waive the insurance required by subdivision (b) of this section where the applicant is able to demonstrate that such insurance cannot be obtained without imposing an unreasonable hardship on the applicant. Any request for a waiver of the insurance required by subdivision (b) of this section shall be included by the applicant in the application submitted to MOFTB under 43 RCNY § 9-02. The burden of demonstrating unreasonable hardship shall be on the applicant, and may be demonstrated by a showing, for example, that the cost of obtaining insurance for the permitted activity exceeds twenty-five percent (25%) of the applicant’s budget for such activity that is the subject of the application. MOFTB shall take into consideration the applicant’s projections of budget as well as the budget projections for comparable productions of similar size and duration in determining whether the cost of obtaining insurance exceeds twenty-five percent (25%) of the budget. MOFTB may also take into consideration its determination that the permitted activity may increase the potential for injury to individuals and/or damage to property. In the event that MOFTB denies a waiver of the insurance requirement, the applicant may thereafter respond to the denial and appeal such denial pursuant to the provisions of 43 RCNY § 9-02.

   (2) If an applicant requests and is granted a waiver of the insurance required by subdivision (b) of this section because it would impose an unreasonable hardship, such applicant shall be deemed to qualify for a waiver of the $300.00 fee required by subparagraph b of paragraph (1) of subdivision (b) of 43 RCNY § 9-02 in the event such applicant makes a request for a waiver of the $300.00 fee.

Chapter 10: Green Building Standards

§ 10-01 Definitions.

(a)  Definitions of the terms "capital project", "city agency", "green building standards", "LEED energy and atmosphere credit 1", "LEED green building rating system", and "not less stringent" set forth in subdivision (a) of § 224.1 of the Charter shall apply to such terms as they appear in this chapter.
  1. As used in this chapter, the following terms shall have the following meanings:

   Construction cost. The term “construction cost” means capital dollars allocated to construction as defined in the Certificate to Proceed for Construction or Certificate to Proceed for Design and Construction or with respect to entities that are not City agencies, cost allocated to construction of a project intended to achieve a public purpose of the City as such project is described in supporting documentation submitted to the Office of Management and Budget for the issuance of a Certificate to Proceed for Construction or Certificate to Proceed for Design and Construction.

   Estimated project cost. The term “estimated project cost” means all costs of a project that is intended to achieve a public purpose of the City, as such project is described in supporting documentation submitted to the Office of Management and Budget for the issuance of a Certificate to Proceed for Construction or a Certificate to Proceed for Design and Construction, including but not limited to the cost of site acquisition, preparation, design and construction.

   Floor area. The term “floor area” means all occupied and unoccupied space including, but not limited to, cellars, basements, interior shafts, penthouses and wall thickness. It shall be measured from the outside surface of exterior walls or from the centerline of walls shared by adjacent buildings.

   HVAC comfort controls. The term “HVAC comfort controls” means control systems and components, including, but not limited to, building management systems and related devices such as thermostats, actuators, and sensors used to regulate the equipment that provide, either collectively or individually, the processes of heating, ventilating, or air-conditioning to a building or portion of a building.

   Phased project. The term “phased project” means a project of a City agency undertaken in phases for which the Office of Management and Budget issues a separate Certificate to Proceed for Construction or Certificate to Proceed for Design and Construction for each phase.

   Plumbing fixture. The term “plumbing fixture” means all toilets, urinals, lavatories, showers, and kitchen sinks that form part of a plumbing system.

   Plumbing system. The term “plumbing system” means a domestic plumbing system, including all plumbing fixtures and piping and fittings associated with such fixtures.

   Rehabilitation work. The term “rehabilitation work” in relation to major systems means the partial or total reconstruction of the system. Such term shall include all construction work on such systems except minor alterations or ordinary repairs as described in chapter 1 of title 27 of the Administrative Code.

   Reporting form. The term “reporting form” means the Local Law 86 reporting database, reporting worksheet and reporting instructions.

   Substantial reconstruction. The term “substantial reconstruction” means a capital project in which the scope of work includes rehabilitation work in at least two of the three major systems – electrical, HVAC (heating, ventilating and air conditioning) and plumbing – of a building and reconstruction work affects at least fifty percent (50%) of the entire building’s floor area. For purposes of this definition, only work that does not constitute minor alterations or ordinary repairs as described in chapter 1 of title 27 of the Administrative Code shall be considered in determining the amount of affected floor area.

§ 10-02 Selected Green Building Rating System.

Pursuant to paragraph (11) of subdivision (a) of § 224.1 of the Charter, on and after June 26, 2009 the “selected green building rating system” is the Leadership in Energy and Environmental Design (LEED) 2009 New Construction and Major Renovations Rating System, LEED 2009 for Commercial Interiors Rating System, LEED 2009 for Schools New Construction and Major Renovations Rating System, LEED 2009 for Core and Shell Development Rating System, and LEED 2009 for Existing Buildings: Operations and Maintenance Rating System published by the United States Green Building Council, whichever is most appropriate for the project under United States Green Building Council guidelines except that for projects that either received funding from the city treasury or received design approval prior to June 26, 2009 or that applied to the United States Green Building Council for certification prior to June 26, 2009, the selected green building rating system may be New Construction version 2.2, Existing Buildings version 2.0, or Commercial Interiors version 2.0 of the Leadership in Energy and Environmental Design (LEED) building rating system published by the United States Green Building Council, whichever is most appropriate for the project under United States Green Building Council guidelines. Except as otherwise provided in subdivision (a) of 43 RCNY § 10-05 for calculation of required reductions in energy cost, the selected green building rating system shall apply to capital projects subject to subdivision (b) of § 224.1 of the Charter unless an alternative, not less stringent, green building standard has been specifically approved by the Director of the Office of Environmental Coordination as set forth in such subdivision.

§ 10-03 Applicability.

(a)  Except as otherwise provided in subdivision (b) of this section, capital projects within spaces classified in the occupancy groups listed in paragraph (1) of this subdivision having one or more of the six characteristics listed in paragraph (2) of this subdivision, are subject to this chapter and the green building requirements of § 224.1 of the Charter, summarized in 43 RCNY § 10-04.

   (1) Occupancy Groups.

B-1 Storage (moderate hazard) F-3 Assembly (museums, etc.)
B-2 Storage (low hazard) F-4 Assembly (restaurants, etc.)
C Mercantile G Education
E Business H-1 Institutional (restrained)
F-1a Assembly (theaters, etc.) H-2 Institutional (incapacitated)
F-1b Assembly (churches, concert halls, etc.)  

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   (2) Project Characteristics.

      (i) Capital projects for or in new buildings and additions to existing buildings, including fit-outs of condominium units and leased space. A capital project for or in a new building or an addition to an existing building is covered by subdivision b of § 224.1 of the Charter if the construction cost of the capital project is two million dollars or more. With respect to projects involving the fit-out of condominium units and leased space, only space and components under the exclusive control of the tenant or unit owner are subject to the design and construction requirements of such subdivision. With respect to phased projects of City agencies, each phase shall be covered only if the estimated construction cost of such phase is two million dollars or more.

      (ii) Capital projects in existing buildings subject to substantial reconstruction, including fit-outs of condominium units and leased space. A capital project in a building in which 50% of the entire building’s floor area is subject to reconstruction work is covered by subdivision b of § 224.1 of the Charter if the construction cost of the capital project is two million dollars or more and the scope of work of the project includes rehabilitation work in at least two of the three major systems – electrical, HVAC (heating, ventilating and air conditioning) and plumbing – of the building. With respect to the fit-out of condominium units and leased space, only space and components under the exclusive control of the tenant or unit owner are subject to the design and construction requirements of such subdivision. With respect to phased projects of City agencies, each phase shall be covered only if the estimated construction cost of such phase is two million dollars or more.

      (iii) Installation or replacement of plumbing systems that includes the installation or replacement of plumbing fixtures. A capital project that includes the installation or replacement of a plumbing system is covered by subdivision d of § 224.1 of the Charter if it includes the installation or replacement of plumbing fixtures and the estimated construction cost of the installation or replacement of the plumbing system is $500,000 dollars or more.

      (iv) Installation or replacement of boilers. A capital project that is not subject to subdivision b of § 224.1 of the Charter involving the installation or replacement of boilers at an estimated construction cost of two million dollars or more is covered by subdivision c (1) of § 224.1 of the Charter.

      (v) Installation or replacement of lighting systems. A capital project that is not subject to subdivision b of § 224.1 of the Charter and that includes the installation or replacement of lighting systems at an estimated construction cost of one million dollars or more is covered by subdivision c (1) of § 224.1 of the Charter.

      (vi) Installation or replacement of HVAC comfort controls. A capital project that is not subject to subdivision b or paragraph (1) of subdivision c of § 224.1 of the Charter and that includes the installation or replacement of HVAC comfort controls at an estimated construction cost for such installation or replacement of two million dollars or more is covered by paragraph (2) of subdivision c of § 224.1 of the Charter.

  1. Entities that are not City agencies.

   (1) Notwithstanding subdivision (a) of this section, a capital project of an entity that is not a City agency is not subject to the requirements of § 224.1 of the Charter and this chapter unless:

      (i) 50% or more of the estimated project cost is paid out of the City treasury; or

      (ii) the project receives ten million dollars or more of the estimated project cost from the City treasury.

   (2) Entities that are not City agencies and that receive capital dollars from the City treasury shall be on notice that a project, as such project is described in supporting documentation submitted to the Office of Management and Budget for the issuance of a Certificate to Proceed for Construction or Certificate to Proceed for Design and Construction, shall be subject to all applicable provisions of Local Law 86 of 2005 at any time that the City capital contribution to such project equals or exceeds one of the amounts set forth in paragraph 1 of this subdivision. All City funding agreements shall contain notice of this requirement.

   (3) When determining whether the City contribution is 50% or more or $10 million or more of the estimated project cost, the cost of the entire project, as described in supporting documentation submitted to the Office of Management and Budget for the issuance of a Certificate to Proceed for Construction or Certificate to Proceed for Design and Construction, including land or other property acquisition and subsequent construction or rehabilitation costs, shall be considered.

   (4) Entities that are not City agencies shall act in good faith in describing capital projects in supporting documentation submitted to the Office of Management and Budget for the issuance of a Certificate to Proceed for Construction or Certificate to Proceed for Design and Construction, and shall not seek to do so in a manner so as to circumvent the requirements of § 224.1 of the Charter and this chapter.

  1. Stand-alone parking garages. Notwithstanding any inconsistent provision of this chapter, stand-alone parking garages are not covered by § 224.1 of the Charter and this chapter.

§ 10-04 Table Summaries of Green Building Standards.

The following tables summarize the requirements of § 224.1 of the Charter as they apply to the capital projects described in 43 RCNY § 10-03:

  1. Requirements for capital projects for or in new buildings, additions to existing buildings and capital projects in existing buildings subject to substantial reconstruction:

Table A

Estimated Construction Cost Occupancy Group Green Building Standard Required Additional Energy Cost Reduction Required (See 43 RCNY § 10-05(a) for method of calculation)
$2M and lower than $12M B-1 Storage (moderate hazard)B-2 Storage (low hazard)C MercantileE Business LEED Silver or higher N/A
  F-1a Assembly (theaters, etc.)F-1b Assembly (churches, concert halls, etc.)F-3 Assembly (museums, etc.)F-4 Assembly (restaurants, etc.)H-1 Institutional (restrained)    
  G EducationH-2 Institutional (incapacitated) LEED-certified orhigher N/A
$12M or more G Education LEED-certified or higher Minimum 20% reduction in energy costs. Additional 5% or 10% (whichever is achievable) reduction required if payback within 7 years.
Greater than $12M and lower than $30M B-1 Storage (moderate hazard)B-2 Storage (low hazard)C MercantileE BusinessF-1a Assembly (theaters, etc.)F-1b Assembly (churches, concert halls, etc.)F-3 Assembly (museums, etc.)F-4 Assembly (restaurants, etc.)H-1 Institutional (restrained) LEED Silver or higher Minimum 20% reduction in energy costs. Additional 5% reduction required if payback within 7 years.
  H-2 Institutional (incapacitated) LEED-certified or higher Minimum 20% reduction in energy costs. Additional 5% reduction required if payback within 7 years.
$30M or more B-1 Storage (moderate hazard)B-2 Storage (low hazard)C MercantileE BusinessF-1a Assembly (theaters, etc.)F-1b Assembly (churches, concert halls, etc.)F-3 Assembly (museums, etc.)F-4 Assembly (restaurants, etc.)H-1 Institutional (restrained) LEED Silver or higher Minimum 25% reduction in energy costs. Additional 5% reduction required if payback within 7 years.
  H-2 Institutional (incapacitated) LEED-certified or higher Minimum 25% reduction in energy costs. Additional 5% reduction required if payback within 7 years.

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  1. Requirements for capital projects involving the installation or replacement of boilers, lighting systems and HVAC comfort controls:

Table B

Estimated Construction Cost Occupancy Group Energy Cost Reduction Required (See 43 RCNY § 10-05(a) for method of calculation)
Boiler – $2M or more B-1 Storage (moderate hazard)B-2 Storage (low hazard)C MercantileE BusinessF-1a Assembly (theaters, etc.)F-1b Assembly (churches, concert halls, etc.)F-3 Assembly (museums, etc.)F-4 Assembly (restaurants, etc.)G EducationH-1 Institutional (restrained)H-2 Institutional (incapacitated) Minimum 10% reduction in energy costs.
Lighting systems – $1M or more B-1 Storage (moderate hazard)B-2 Storage (low hazard)C MercantileE BusinessF-1a Assembly (theaters, etc.)F-1b Assembly (churches, concert halls, etc.)F-3 Assembly (museums, etc.)F-4 Assembly (restaurants, etc.)G EducationH-1 Institutional (restrained)H-2 Institutional (incapacitated) Minimum 10% reduction in energy costs.
HVAC comfort controls – $2M or more B-1 Storage (moderate hazard)B-2 Storage (low hazard)C MercantileE BusinessF-1a Assembly (theaters, etc.)F-1b Assembly (churches, concert halls, etc.)F-3 Assembly (museums, etc.)F-4 Assembly (restaurants, etc.)G EducationH-1 Institutional (restrained)H-2 Institutional (incapacitated) Minimum 5% reduction in energy costs.

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Notes to Table B:

   (i) Capital projects required to comply with subdivision (a) of this section are not required to also comply with the energy cost reduction requirements summarized in this table.

   (ii) Capital projects for the installation of boilers at an estimated construction cost of two million dollars or more are not required to also comply with the energy cost reduction requirements summarized in this table for the installation of HVAC comfort controls.

  1. Requirements for capital projects involving the installation or replacement of plumbing systems that includes the installation or replacement of plumbing fixtures:

Table C

Estimated Construction Cost for Plumbing Systems Occupancy Group Water Use Reduction Required (See 43 RCNY § 10-05(b) for method of calculation)
$500,000 or more B-1 Storage (moderate hazard)B-2 Storage (low hazard)C MercantileE Business Minimum 30% reduction in water use or 20% if the Department of Buildings rejects an application for the use of waterless urinals.
  F-1a Assembly (theaters, etc.)F-1b Assembly (churches, concert halls, etc.)F-3 Assembly (museums, etc.)F-4 Assembly (restaurants, etc.)G EducationH-1 Institutional (restrained)H-2 Institutional (incapacitated)  

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Note to Table C: Capital projects required to comply with the provisions of subdivision (a) or (b) of this section are also subject to any applicable water use reduction requirements, summarized in this table.

§ 10-05 Calculation of Required Energy Cost Reduction and Potable Water Use Reduction.

(a)  The required energy cost reduction, summarized in the tables set forth in subdivisions (a) and (b) of 43 RCNY § 10-04, shall be calculated in accordance with the methodology prescribed under LEED Energy and Atmosphere Credit 1 of LEED NC v.2.1 or the New York State Energy Conservation Construction Code, whichever is more stringent.
  1. The required potable water use reduction, summarized in the table set forth in subdivision (c) of 43 RCNY § 10-04, shall be determined by a methodology not less stringent than that prescribed in the LEED water efficiency credit 3.2 of LEED NC v.2.1 or v.2.2.

§ 10-06 Procedures.

(a)  Application for USGBC certification. In accordance with subdivision (k) of § 224.1 of the Charter and this chapter, a City agency must apply to the U.S. Green Building Council for certification of projects accounting for at least 50% of the amount of capital dollars allocated for capital projects of such agency unless the agency is utilizing an approved green building rating system other than the LEED green building rating system. This subdivision does not apply to the projects of entities that are not City agencies.
  1. Reporting requirements.

   (1) Each agency responsible for the expenditure of City funds on a capital project, whether it is a project of a City agency or a project of an entity that is not a City agency for which City capital funds will be expended, shall complete and submit applicable reporting forms for each capital project subject to § 224.1 of the Charter in accordance with guidelines issued by the Director of the Office of Environmental Coordination.

   (2) The Director of the Office of Environmental Coordination will prepare an Annual Report in accordance with § 3 of local law 86 for the year 2005.

  1. Indexation of construction costs to inflation. The construction costs listed in subdivisions (b), (c), (d) and (g) of § 224.1 of the Charter shall be indexed to inflation. The Director of the Office of Environmental Coordination shall publish such costs at the start of each calendar year, beginning January 1, 2008.

§ 10-07 Exemptions.

(a)  The Director of the Office of Environmental Coordination may, on behalf of the Mayor, administer exemptions for capital projects from one or more of the requirements outlined in 43 RCNY § 10-04 if, in his or her sole discretion, such exemption is necessary in the public interest.
  1. The total value of the exemptions granted pursuant to subdivision (a) of this section may not exceed 20% of the capital dollars in each fiscal year accounting for capital projects subject to each of subdivisions (b), (c) and (d) of § 224.1 of the Charter.
  2. Requests for exemption, including an explanation of the reason for such request and supporting documentation, shall be submitted to the Director of the Office of Environmental Coordination as soon as is practicable after the agency becomes aware of the necessity for such exemption.

Chapter 11: Environmental Preferable Purchasing Program

Subchapter 1: General Provisions

§ 11-01 Definitions.

(a)  For the purposes of this chapter only, the following terms shall have the following meanings:

   (1) “Added urea-formaldehyde resins” means any one of a class of substances belonging to the family of organic polymers prepared by heating urea and formaldehyde in the presence of mild alkalies, such as pyridine or ammonia.

   (2) “Air freshener” means any product including, but not limited to, sprays, wicks, powders, blocks, gels and crystals, designed for the purpose of masking odor or freshening, cleaning, scenting or deodorizing the air, but such term shall not include any product that is used on the human body or any product that functions primarily as a cleaning or disinfectant product claiming to deodorize by killing germs on surfaces.

   (3) “Architectural coatings” means any coating to be applied to stationary structures and their appurtenances at the site of installation, to portable buildings at the site of installation, to pavements, or to curbs. This term shall not include the following: marine-based paints and coatings; coatings or materials to be applied to metal structures, such as bridges; or coatings or materials labeled and formulated for application in roadway maintenance activities.

   (4) “Bathroom cleaner” means any product used to clean hard surfaces in a bathroom, such as counters, walls, floors, fixtures, basins, tubs and tiles. This term may include products that are required to be registered under the federal insecticide fungicide and rodenticide act, such as disinfectants and sanitizers, but shall not include products specifically intended to clean toilet bowls.

   (5) “Cadmium plating” means any deposit or coating of metallic cadmium on a metallic surface.

   (6) “Carpet” means any fabric used as a floor covering, but such term shall not include artificial turf.

   (7) “Carpet adhesive” means any substance used to adhere carpet to a floor by surface attachment, including any latex multi-purpose floor adhesive, pressure-sensitive floor adhesive, vinyl-backed floor adhesive, latex seam adhesive, vinyl-backed seam sealer, cove base adhesive, tackless cushion adhesive and contact adhesive.

   (8) “Carpet cushion” means any kind of material placed under carpet to provide softness when it is walked upon.

   (9) “Cathode ray tube” means any vacuum tube, typically found in computer monitors, televisions and oscilloscopes, in which a beam of electrons is projected on a phosphorescent screen.

   (10) “City’s environmental purchasing standards” or “city environmental purchasing standard” means any standard set forth in chapter 3 of title 6 of the administrative code of the city of New York, and any directives, guidelines or rules promulgated by the director of citywide environmental purchasing pursuant to chapter 3 of title 6 of such code.

   (11) “Clear brushing lacquer” means any clear wood finish, excluding any clear lacquer sanding sealer, formulated with nitrocellulose or synthetic resins to dry by solvent evaporation without chemical reaction and to provide a solid, protective film, that is intended exclusively for application by brush.

   (12) “Coating” means any material that is applied to a surface in order to beautify, protect, or provide a barrier to such surface.

   (13) “Composite wood or agrifiber product” means any plywood, particleboard, chipboard, medium density fiberboard, standard fiberboard, orient strand board, glulam product, wheatboard or strawboard or any other particleboard made from post-agricultural resources.

   (14) “Construction work” means any work or operations necessary or incidental to the erection, demolition, assembling or alteration of any building, but such term shall not include minor repairs.

   (15) “Contractor” means any person or entity that enters into a contract with any agency, or any person or entity that enters into an agreement with such person or entity, to perform work or provide labor or services related to such contract.

   (16) “CPG” means the Comprehensive Procurement Guideline for Products Containing Recovered Materials, as set forth in part 247 of title 40 of the United States code of federal regulations.

   (17) “Degreaser” means any product designed to remove or dissolve grease, grime, oil and other oil-based contaminants from interior or exterior building surfaces.

   (18) “Dioxin producing product” means any product that leads to the formation of dioxin or dioxin-like compounds upon combustion.

   (19) “Director” means the director of citywide environmental purchasing.

   (20) “Disinfectant” means any United States environmental protection agency-registered agent that is used to destroy or irreversibly inactivate infectious fungi, viruses and bacteria, but not necessarily their spores. This term shall include any agent that is required to be registered under the federal insecticide, fungicide, and rodenticide act.

   (21) “EcoLogo” means a Type I eco-label, as defined by the International Organization for Standardization. The EcoLogo Program compares products and/or services with others in the same category, develops rigorous and scientifically relevant criteria that reflect the entire lifecycle of the product, and awards the EcoLogo label to those that are verified by an independent third party as complying with the criteria.

   (22) “Emission factor” means the mass of a volatile organic compound emitted from a specific unit area, mass or length, as appropriate, of product surface per unit of time.

   (23) “ENERGY STAR labeled” means a designation indicating that a product meets the energy efficiency standards set forth by the United States environmental protection agency and the United States department of energy for compliance with the ENERGY STAR program.

   (24) “Flat paint” means any coating that registers a gloss of less than 15 on an 85-degree meter or less than 5 on a 60-degree meter.

   (25) “Floor coating” means any opaque coating that is formulated for or applied to flooring, including but not limited to decks, porches, gymnasiums, and bowling alleys, but does not include any industrial maintenance coating.

   (26) “Flow rate” means the volume, mass, or weight of water flowing past a given point per unit of time.

   (27) “Fragrance” means a substance or complex mixture of aroma chemicals, natural essential oils, and other functional components with a combined vapor pressure not in excess of 2 mm of Hg at 20°C, the sole purpose of which is to impart an odor or scent, or to counteract a malodor.

   (28) “General-purpose cleaner” means any product used for routine cleaning of hard surfaces, including impervious flooring, such as concrete or tile. This term shall not include any cleaner intended primarily for the removal of rust, mineral deposits or odors; any product intended primarily to strip, polish, or wax floors; any cleaner intended primarily for cleaning toilet bowls, dishes, laundry, glass, carpets, upholstery, wood or polished surfaces; or any product required to be registered under the federal insecticide fungicide and rodenticide act, such as those making claims as sterilizers, disinfectants or sanitizers.

   (29) “Glass cleaner” means any product used to clean windows, glass and polished surfaces. This term shall not include any product required to be registered under the federal insecticide fungicide and rodenticide act, such as those making claims as sterilizers, disinfectants or sanitizers.

   (30) “Green Seal” means the independent, non-profit organization that sets standards for environmentally responsible products.

   (31) “Homogeneous” means of uniform composition throughout, such as plastics, ceramics, glass, metals, alloys, paper, board, resins and coatings.

   (32) “Homogeneous material” means a material that cannot be mechanically disjointed into different materials through actions such as unscrewing, cutting, crushing, grinding and abrasive processes.

   (33) “Lacquer” means any clear or pigmented wood finish, including clear lacquer sanding sealers, formulated with nitrocellulose or synthetic resins to dry by evaporation without chemical reaction and to provide a solid, protective film.

   (34) “Lamp” means any glass envelope with a gas, coating, or filament that produces visible light when electricity is applied, but such term shall not include automotive light bulbs.

   (35) “Lamp life” means the rated hours of output for a fluorescent tube lamp measured using instant-start ballasts at 3 hours per start, except for T5 lamps, which shall be measured using program start ballasts.

   (36) “LVP-VOC” means a chemical compound or mixture that contains at least one carbon atom and meets one of the following:

      (i) has a vapor pressure less than 0.1 mm Hg at 20°C, as determined by the California Air Resources Board (“ARB”) Method 310; or,

      (ii) is a chemical compound with more than 12 carbon atoms, or a chemical mixture comprised solely of compounds with more than 12 carbon atoms, as verified by formulation data, and the vapor pressure and boiling point are unknown; or,

      (iii) is a chemical compound with a boiling point greater than 216°C, as determined by ARB Method 310; or,

      (iv) is the weight percent of a chemical mixture that boils above 216°C, as determined by ARB Method 310. For the purposes of the definition of LVP-VOC, chemical “compound” means a molecule of definite chemical formula and isomeric structure, and chemical “mixture” means a substance comprised of two or more chemical compounds.

   (37) “Maximum mercury” means the total weight of mercury in a lamp.

   (38) “Medical device” means any equipment for fertilization testing, laboratory equipment for in-vitro diagnosis, medical analyzer, medical freezer, pulmonary ventilator, cardiology, dialysis, radiotherapy or nuclear medicine equipment and any other appliance for detecting, preventing, monitoring, treating, alleviating illness, injury or disability.

   (39) “Minor repairs” means the replacement of any part of a building for which a permit issued by the department of buildings is not required by law, where the purpose and effect of such work or replacement is to correct any deterioration or decay of or damage to such building or any part thereof and to restore same, as nearly as may be practicable, to its condition prior to the occurrence of such deterioration, decay or damage.

   (40) “Monitoring and control instrument” means any heating regulator, smoke detector, thermostat, device for measuring, weighing or adjusting any device for use in a household or laboratory and any other monitoring and control instrument used in industrial installations.

   (41) “Multi-function device” means any physically integrated device or a combination of functionally integrated components that performs the function of a copier as well as the functions of at least one of the following devices: printer, facsimile machine or scanner.

   (42) “Nonflat paint” means any coating that registers a gloss of 5 or greater on a 60 degree meter and a gloss of 15 or greater on an 85 degree meter.

   (43) “Paper product” means any commercial/industrial sanitary tissue products, miscellaneous papers, newsprint, paperboard and packaging products, or printing and writing papers as such terms are used in the CPG.

   (44) “Primer” means any coating applied to a substrate to provide a firm bond between the substrate and subsequent coats.

   (45) “Process-chlorine free” means a paper recycling process in which no chlorine or chlorine derivatives were used.

   (46) “Rust preventative/anti-corrosive paint” means any coating formulated exclusively for nonindustrial use to prevent the corrosion of metal surfaces.

   (47) “Sanding sealer” means any clear or semi-transparent wood coating formulated for or applied to bare wood to seal the wood and to provide a coat that can be abraded to create a smooth surface for subsequent applications of coatings. A sanding sealer that also meets the definition of a lacquer is not included in this category, but it is included in the lacquer category.

   (48) “Sanitizer” means any United States environmental protection agency-registered agent that is used to reduce, but not necessarily eliminate, microorganisms to levels considered safe by public health codes or regulations. This term shall include any agent that is required to be registered under the federal insecticide fungicide and rodenticide act.

   (49) “Selected test method” means the American Society for Testing and Materials test method D 5116 (guide for small-scale environmental chamber determinations of organic emissions from indoor materials/products).

   (50) “Varnish” means any clear or semi-transparent wood coating, excluding lacquers and shellacs, formulated to dry by chemical reaction on exposure to air. Varnishes may contain small amounts of pigment to color a surface, or to control the final sheen or gloss of the finish.

   (51) “Volatile organic compound” means any compound of carbon, excluding carbon monoxide, carbon dioxide, carbonic acid, metallic carbides or carbonates, and ammonium carbonate, which participates in atmospheric photochemical reactions, as specified in part 51.100 of chapter 40 of the United States code of federal regulations.

  1. [Reserved.]

§ 11-02 Applicability, Exemptions and Waivers.

Except as provided for in 43 RCNY §§ 11-06, 11-07, and 11-10 and notwithstanding § 6-302(a)(3)(i)-(vi) of the Administrative Code of the City of New York, these rules shall apply to products purchased or leased by any agency or purchased or leased by a contractor pursuant to any contract with any agency for construction work in any building, such contracts being designated as being subject to this chapter, pursuant to § 6-302 of the Administrative Code of the City of New York on the applicability of the environmentally preferable purchasing program contained in chapter three of title six of such code. These rules shall be subject to any exemption or waiver contained in § 6-303 of the Administrative Code or contained in any other provision of such chapter.

Subchapter 2: Hazardous Substances

§ 11-03 Hazardous Content of Electronic Devices.

(a)  No new cathode ray tube, product containing a cathode ray tube, liquid crystal display (LCD), plasma screen or other flat panel television or computer monitor or similar video display product, desktop computer or laptop computer, computer peripheral including, but not limited to, a keyboard, mouse and other pointing device, printer, scanner, facsimile machine and card reader, copier, and multi-function device shall contain lead, mercury, cadmium, hexavalent chromium, polybrominated biphenyls or polybrominated diphenyl ethers, except that this section shall not apply to:

   (1) Any battery, medical device or monitoring and control instrument.

   (2) Any display device with a diagonal screen size of four inches or less.

   (3) Any electronic device that is functionally or physically a part of any larger piece of equipment designed and intended for use in an industrial, commercial or medical setting, including diagnostic, monitoring or control equipment.

   (4) Any remanufactured, refurbished or reused electronic device; any electronic device containing any reused component, assembly or part; and any reused part, component or assembly for the repair of any electronic device.

   (5) Any electronic device used in homeland security, police, military or emergency response activities, and/or by personnel engaged in those activities.

   (6) Mercury in the following circumstances:

      (i) In compact fluorescent lamps not exceeding 5 mg per lamp;

      (ii) In straight fluorescent lamps for general purposes not exceeding:

         – halophosphate 10 mg

         – triphosphate with normal lifetime 5 mg

         – triphosphate with long lifetime 8 mg;

      (iii) In straight fluorescent lamps for special purposes; and

      (iv) In other lamps not specifically mentioned in this section.

   (7) Lead in the following circumstances:

      (i) 0.1% by weight in homogeneous materials;

      (ii) As a constituent in the glass used in cathode ray tubes, electronic components or fluorescent tubes;

      (iii) As an alloying element in steel containing up to 0.35% lead by weight, aluminum containing up to 0.4% lead by weight and as a copper alloy containing up to 4% lead by weight;

      (iv) In high melting temperature type solders (i.e. lead-based alloys containing 85% by weight or more lead);

      (v) In solders for servers, storage and storage array systems, network infrastructure equipment for switching, signaling, transmission as well as network management for telecommunications;

      (vi) In electronic ceramic parts (e.g. piezoelectronic devices);

      (vii) In lead-bronze bearing shells and bushes;

      (viii) Used in compliant pin connector systems;

      (ix) As a coating material for the thermal conduction module c-ring;

      (x) In solders consisting of more than two elements for the connection between the pins and the package of microprocessors with a lead content of more than 80% and less than 85% by weight;

      (xi) In solders to complete a viable electrical connection between semiconductor die and carrier within integrated circuit flip chip packages;

      (xii) In linear incandescent lamps with silicate coated tubes;

      (xiii) Lead halide as radiant agent in High Intensity Discharge (HID) lamps used for professional reprography applications;

      (xiv) As activator in the fluorescent powder (1% lead by weight or less) of discharge lamps when used as sun tanning lamps containing phosphors such as BSP (BaSi2O5:Pb) as well as when used as speciality lamps for diazoprinting reprography, lithography, insect traps, photochemical and curing processes containing phosphors such as SMS ((Sr,Ba)2MgSi2O7:Pb);

      (xv) With PbBiSn-Hg and PbInSn-Hg in specific compositions as main amalgam and with PbSn-Hg as auxiliary amalgam in very compact Energy Saving Lamps (ESL);

      (xvi) Lead oxide in glass used for bonding front and rear substances of flat fluorescent lamps used for Liquid Crystal Displays (LCD);

      (xvii) As an impurity in RIG (rare earth iron garnet) Faraday rotators used for fiber-optic communications systems;

      (xviii) In finishes of fine pitch components other than connectors with a pitch of 0.65 mm or less with NiFe lead frames and lead in finishes of fine pitch components other than connectors with a pitch of 0.65 mm or less with copper lead frames;

      (xix) In solders for the soldering to machined through hole discoidial and planar array ceramic multilayer capacitors;

      (xx) Lead oxide in plasma display panels (PDP) and surface conduction electron emitter displays (SED) used in structural elements; notably in the front and rear glass dielectric layer, the bus electrode, the black stripe, the address electrode, the barrier ribs, the seal frit and frit ring as well as in print pastes;

      (xxi) Lead oxide in the glass envelope of Black Light Blue (BLB) lamps;

      (xxii) Lead alloys as solder for transducers used in high-powered (designated to operate for several hours at acoustic power levels of 125 dB SPL and above) loudspeakers; and

      (xxiii) Lead bound in crystal glass as defined in Annex I (Categories 1, 2, 3 and 4) of Council of the European Union Directive 69/493/EEC, as amended.

   (8) Cadmium in the following circumstances:

      (i) 0.01% by weight in homogeneous materials; and

      (ii) Cadmium and its compounds in electrical contacts and cadmium plating.

   (9) Lead and cadmium in the following circumstances:

      (i) In optical and filter glass; and

      (ii) In printing inks for the application of enamels on borosilicate glass.

   (10) Hexavalent chromium in the following circumstances:

      (i) As an anti-corrosion of the carbon steel cooling system in absorption refrigerators; and

      (ii) Until July 1, 2007, in corrosion preventive coatings of unpainted metal sheetings and fasteners used for corrosion protection and Electromagnetic Interference Shielding in equipment falling under category three of European Union Directive 2002/96/EC (IT and telecommunications equipment).

   (11) The following materials in the following concentrations:

      (i) 0.1% by weight in homogeneous materials for mercury;

      (ii) 0.1% by weight in homogeneous materials for hexavalent chromium;

      (iii) 0.1% by weight in homogeneous materials for polybrominated biphenyls; and

      (iv) 0.1% by weight in homogeneous materials for polybrominated diphenyl ethers.

   (12) DecaBDE in polymeric applications.

  1. [Reserved.]

§ 11-04 Volatile Organic Compounds and Other Airborne Hazards.

(a)  (1) No carpet or carpet adhesive shall contain any volatile organic compound in any concentration exceeding that specified below, according to the selected test method.
Product Volatile Organic Compound 24-Hour Testing Maximum Emission Factor (mg/m2 • hr) 14-Day Testing MaximumEmission Factor (mg/m2 • hr)
  Formaldehyde 50 30
  4-Phenylcyclohexene 50 17
Carpet Styrene 410 410
  Total Volatile Organic Compounds 500
  Formaldehyde 50 31
Carpet 2-ethyl-1-hexanol 300 300
Adhesive Total Volatile Organic Compounds 8,000

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   (2) No carpet cushion shall contain any volatile organic compound in any concentration exceeding that specified below, according to the selected test method.

Product Volatile Organic Compound 24-Hour Testing Maximum Emission Factor (EF) (mg/m2 • hr)
  Butylated Hydroxytoluene 300
Carpet Formaldehyde 50
Cushion 4-Phenylcyclohexene (4PCH) 50
  Total Volatile Organic Compounds 1,000

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    1. No architectural coating regulated under part 205 of title six of the New York codes, rules and regulations shall contain any volatile organic compound in any concentration exceeding that permitted under such part.

   (2) None of the following architectural coatings shall contain any volatile organic compound in any concentration exceeding that specified below, according to the selected test method.

Product Maximum Concentration of Volatile Organic Compounds in Grams per Liter
Sanding Sealers 275
Varnish 275
Floor Coatings 100
Clear Brushing Lacquer 275
Pigmented Lacquers 275
Rust-Preventative/Anti-Corrosive Paint 250
Primer For Flat Paint 100
Primer For Non-Flat Paint 150

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Any other architectural coating not listed above but regulated under part 205 of title six of the New York codes, rules and regulations shall not contain any volatile organic compound in any concentration exceeding that permitted under such part.

§ 11-05 Mercury-Added Lamps.

Any of the following mercury-added lamps shall comply with the standards specified below:

Fluorescent Tube Lamps          
Lamp Characteristics     Standard    
Lamp Type Length (Inches) Watts Minimum Mean Lumens Minimum Lamp Life (Rated Hours) Maximum Mercury (mg.)
T5 46 - 48 28 2,700 20,000 5
T5 High Output 45 - 46 54 4,600 20,000 5
T8 24 17 1,300 24,000 6
T8 36 25 2,000 24,000 6
T8 48 32 2,800 24,000 6
T8 Instant Start 96 59 5,400 18,000 10
T8 High Output 96 86 7,300 18,000 10
U-Bent, 6”Spacing Any 32 2,325 18,000 8
T8 Rapid Start 60 40 3,200 18,000 8
T8 Preheat 18 15 740 7,500 6
T8 Preheat 36 30 1,800 7,500 6
T12 24 30 1,870 18,000 10
T12 48 34 2,520 20,000 10
T12 48 40 2,660 20,000 10
T12 Instant Start 48 39 2,400 9,000 10
T12 Instant Start 72 56 3,900 12,000 10
T12 Instant Start 96 60 4,950 12,000 10
T12 Instant Start 96 75 5,900 12,000 10
T12 High Output 48 60 3,200 15,000 15
T12 High Output 72 85 5,500 12,000 25
T12 High Output 96 95 6,900 12,000 15
T12 High Output 96 110 8,100 12,000 15
T12 U-Bent, 6”Spacing Any 31 - 32/34 2,000 18,000 8
T12 U-Bent, 6”Spacing Any 40 2,700 18,000 8
T12 Preheat 18 15 650 9,000 16
T12 Preheat 24 20 1,040 9,000 9.5
T9 Circline Any 22 675 12,000 20
T9 Circline Any 32 1,300 12,000 20
T9 Circline Any 40 1,975 12,000 20

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Compact Fluorescent Lamps    
Lamp Type Minimum Lamp Life (Rated Hours) Maximum Mercury (mg.)
4-Pin 12,000 5
2-Pin 10,000 5
Twist/Spiral or Loop (Self-Ballasted) 8,000 5
Other Self-Ballasted 6,000 5

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§ 11-06 Added urea-formaldehyde resins reduction.

Any of the following composite wood or agrifiber products containing added urea-formaldehyde resins purchased or leased by any agency shall meet the standards specified below, except that this section shall not apply to any composite wood or agrifiber product containing added urea-formaldehyde resins purchased or leased by any contractor pursuant to any contract with any agency.

Product Formaldehyde Emission Standards (ppm)*
Hardwood Plywood-Veneer Core 0.08
Hardwood Plywood-Composite Core 0.08
Particleboard 0.18
Medium Density Fiberboard 0.21
Thin Medium Density Fiberboard 0.21
Orient Strand Board No added urea formaldehyde resins
Glulam Product No added urea formaldehyde resins
Wheatboard No added urea formaldehyde resins
Strawboard No added urea formaldehyde resins

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* Based on the primary test method ) in parts per million (ppm).

§ 11-07 Dioxin reduction.

Any of the following dioxin producing products purchased or leased by any agency shall meet the standards specified below, except that this section shall not apply to any dioxin producing products purchased or leased by any contractor pursuant to any contract with any agency.

Product Standard
Paper Products Process-chlorine free

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Subchapter 3: Energy and Efficiency

§ 11-08 Energy and water efficiency standards.

(a) Any energy-using product for which the United States environmental protection agency and the United States department of energy have developed energy efficiency standards for compliance with the Energy Star program shall be ENERGY STAR labeled.
  1. Any faucet, showerhead, toilet, urinal, fluorescent tube lamp, fluorescent ballast, industrial HID luminaire, downlight luminaire, fluorescent luminaire, or compact fluorescent lamp for which the federal energy management program of the United States department of energy has issued product energy efficiency recommendations shall achieve no less energy efficiency or flow rate than the minimum recommended in such recommendations unless the director makes a determination otherwise for any particular contract.
  2. Any air-cooled chiller or water-cooled chiller for which the federal energy management program of the United States department of energy has issued product energy efficiency recommendations shall achieve no less energy efficiency or flow rate than the minimum recommended in such recommendations unless the director makes a determination otherwise for any particular contract.
  3. Any electric motor or microwave oven for which the federal energy management program of the United States department of energy has issued product energy efficiency recommendations shall achieve no less energy efficiency or flow rate than the minimum recommended in such recommendations unless the director makes a determination otherwise for any particular contract.

Subchapter 4: Recycled Materials

§ 11-09 Minimum recycled material content.

(a) Any of the following products listed in the CPG, that can be procured at a reasonably competitive price, and for which the United States environmental protection agency has issued a recovered materials advisory notice, shall contain no less recovered material and postconsumer material than the minimum amount recommended in the most recent such notice:

•     reprographic paper,

•     tablet paper,

•     envelope paper,

•     file folder,

•     commercial/industrial sanitary tissue,

•     rock wool or fiberglass building insulation,

•     polyester carpet,

•     flowable fill,

•     steel shower or restroom divider/partition,

•     traffic cone,

•     plastic fencing,

•     plastic park bench,

•     hydraulic mulch,

•     garden or soaker hose,

•     plastic trash bag,

•     office recycling container,

•     office waste receptacle,

•     mat,

•     signage or pallet.

  1. Any of the following products listed in the CPG, that can be procured at a reasonably competitive price, and for which the United States environmental protection agency has issued a recovered materials advisory notice, shall contain no less recovered material and postconsumer material than the minimum amount recommended in the most recent such notice:

•     carpet,

•     carpet adhesive,

•     carpet cushion,

•     cement and concrete,

•     commercial and industrial low voltage transformer,

•     foam-in-place insulation,

•     glass fiber reinforced insulation,

•     heavy duty/commercial use floor tile,

•     laminated paperboard,

•     latex paint,

•     loose fill and spray-on cellulose insulation,

•     modular threshold ramp,

•     nonpressure pipe,

•     perlite composition board insulation,

•     phenolic rigid foam insulation,

•     plastic non-woven batt insulation,

•     plastic or aluminum sign,

•     plastic or steel sign post/support,

•     plastic rigid foam,

•     polyisocyanurate/polyurethane-rigid foam insulation,

•     residential entry or patio door,

•     roof products,

•     roofing material,

•     steel restroom divider/partition,

•     structural fiberboard,

•     traffic barricade,

•     traffic control device (channelizer),

•     traffic control device (delineator),

•     traffic control device (flexible delineator).

  1. Notwithstanding subdivisions (a) and (b) of this section, any paper product listed in subdivisions (a) or (b) of this section that can be procured at a reasonably competitive price, and for which the United States environmental protection agency has issued a recovered materials advisory notice, shall contain no less than fifty percent agricultural wastes.

Subchapter 5: Green Cleaning

§ 11-10 Green Cleaning product categories.

(a) (1) No agency shall purchase and use bathroom cleaners, degreasers, general purpose cleaners, or glass cleaners, unless such cleaning products comply with the standards set forth by one of the following third-party programs:

      (i) Green Seal;

      (ii) EcoLogo;

      (iii) United States environmental protection agency’s design for the environment program; and/or

      (iv) New York State office of general services green cleaning program.

   (2) (i) Except as provided for in subdivisions (a)(2)(ii) and (a)(2)(iii) of this section, no agency shall purchase and use any air freshener product containing volatile organic compounds exceeding the maximum percentage specified below.

Product Maximum Percentage (%) of Volatile Organic Compounds by Weight
Double Phase Aerosols 25
Single Phase Aerosols 30
Dual Purpose Air Fresheners/Disinfectant Aerosols 60
Liquid/Pump Sprays 18
Solids/Semi-Solid 3

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      (ii) The maximum percentage of volatile organic compounds contained in any air freshener product listed in subdivision (a)(2)(i) of this section shall not apply to any air freshener product:

         (A) identified as LVP-VOC, or

         (B) that is comprised entirely of fragrance and does not contain any of the following compounds:

            •     carbon monoxide;

            •     carbon dioxide;

            •     carbonic acid;

            •     metallic carbides or carbonates;

            •     ammonium carbonate;

            •     methane, including methylene chloride (dichloromethane), 1,1,1-trichloroethane (methyl chloroform), trichlorofluoromethane (CFC-11), dichlorodifluoromethane (CFC-12), 1,1,2-trichloro-1,2,2-trifluoroethane (CFC-113), 1,2-dichloro-1,1,2,2-tetrafluoroethane (CFC-114), chloropentafluoroethane (CFC-115), chlorodifluoromethane (HCFC-22), 1,1,1-trifluoro-2,2-dichloroethane (HCFC-123), 1,1-dichloro-1-fluoroethane (HCFC-141b), 1-chloro-1,1-difluoroethane (HCFC-142b), 2-chloro-1,1,1,2-tetrafluoroethane (HCFC-124), trifluoromethane (HFC-23), 1,1,2,2-tetrafluoroethane (HFC-134), 1,1,1,2-tetrafluoroethane (HFC-134a), pentafluoroethane (HFC-125), 1,1,1-trifluoroethane (HFC-143a), 1,1-difluoroethane (HFC-152a), ethoxy-nonafluorobutane , cyclic, branched, or linear completely methylated siloxanes, and the following classes of perfluorocarbons:

                 •     cyclic, branched, or linear, completely fluorinated alkanes;

                 •   cyclic, branched, or linear, completely fluorinated ethers with no unsaturations;

                 •   cyclic, branched, or linear, completely fluorinated tertiary amines with no unsaturations; and

                 •   sulfur-containing perfluorocarbons with no unsaturations and with the sulfur bonds to carbon and fluorine;

            •   acetone;

            •   ethane;

            •   methyl acetate;

            •   parachlorobenzotrifluoride (1-chloro-4-trifluoromethyl benzene); and

            •   perchlorethylene (tetrachlorethylene).

      (iii) No agency shall purchase and use any solid or semi-solid air freshener product containing para-dichlorobenzene.

   (3) No agency shall purchase and use disinfectant or sanitizer unless such product is registered under the federal insecticide fungicide and rodenticide act.

  1. Agencies shall transition to the use of green cleaning products identified in subdivision (a) of this section in a manner that avoids the waste of existing inventories, enables the training of personnel in appropriate green cleaning work practices, and provides for the gradual phase-out of products and practices inconsistent with the use of environmentally preferable purchasing alternatives.
  2. This section shall not apply to products purchased or leased by any contractor pursuant to any contract with any agency.

Chapter 12: Waivers from Inclusion In the Doing Business Database

§ 12-01 Purpose.

The purpose of this chapter is to set forth the procedure for persons to seek waivers from inclusion in the doing business database as described in paragraph (c) of subdivision 18 of § 3-702 of the administrative code.

§ 12-02 Definitions.

For the purposes of this chapter, the following terms shall have the following meanings:

  1. Agency. “Agency” shall mean the city of New York or any agency or entity affiliated with the city of New York as defined in paragraph (a) of subdivision 18 of § 3-702 of the administrative code.
  2. Business dealings with the city. “Business dealings with the city” shall have the same meaning as in paragraph (a) of subdivision 18 of § 3-702 of the administrative code.
  3. City chief procurement officer or CCPO. “City chief procurement officer” or “CCPO” shall mean the person to whom the mayor has delegated authority to coordinate and oversee the procurement activity of mayoral agency staff, including the agency chief contracting officers.
  4. Doing business database. “Doing business database” shall mean the database established pursuant to subdivision 20 of § 3-702 of the administrative code.
  5. Person. “Person” shall have the same meaning as in subdivision 20 of § 3-702 of the administrative code.

§ 12-03 Applicability.

A waiver may be requested by any person having business dealings with the city in such instances in which such person is providing essential goods, services or construction such as those necessary for security or other essential government operations. Notwithstanding the foregoing, if the transaction is a bid or proposal, a waiver may only be requested if the notice included in the solicitation specifies that a waiver may be applied for.

§ 12-04 Procedure for Requesting Waiver.

(a)  Any person seeking a waiver from the doing business database in connection with a transaction considered a business dealing with the city shall obtain a waiver application form from the CCPO as described in 43 RCNY § 12-07. The waiver applicant shall provide all information that is required of waiver applicants and submit the application to the agency involved with the transaction.
  1. Within ten (10) business days of receipt of the waiver application from the applicant, the agency shall provide all information that is required of agencies and submit the completed application to the CCPO. The CCPO shall notify the waiver applicant when the waiver application is received from the agency.
  2. If the agency fails to complete its portion of the waiver application and/or fails to submit the application to the CCPO within ten (10) business days, the waiver applicant may submit the application directly to the CCPO. The CCPO shall then contact the agency in order to obtain the agency’s portion of the waiver application.
  3. Upon receipt of a waiver application pursuant to paragraph (b) or (c) of this section, the CCPO shall forward the application to the campaign finance board. The waiver application may not be acted on by the CCPO for ten (10) days from the date of receipt of the application by the campaign finance board.
  4. Upon action on a waiver application by the CCPO, both the applicant and agency shall be notified. If the waiver is granted, the applicant shall not be required to provide the data covered by the waiver. If the CCPO determines that a waiver should be denied, in full or in part, to an applicant doing business with an independently elected official other than the Mayor (or with an agency under the control of such an official), the CCPO shall notify such agency at least five (5) days prior to issuance of any such denial determination, and shall consider the agency’s written response, if any, before making the final determination.
  5. Determinations by the CCPO are final.

§ 12-05 Public Notice of Waiver Approvals.

All approved waivers shall be posted on the websites of both the CCPO and the campaign finance board in locations that are accessible by the public. In the event that an independently elected official (or an agency under the control of such an official), submits a written response for consideration by the CCPO pursuant to 43 RCNY § 12-04(e), a copy of such response shall be included in the CCPO’s public posting.

§ 12-06 Scope of Waiver.

Waivers granted under these rules apply only to the requirement that information about covered persons be included in the doing business database.

§ 12-07 Form of Waiver Application.

(a)  The CCPO shall create a waiver application form that shall be completed by waiver applicants and agencies. The information required on the form shall include all information required by the CCPO in order to determine whether a waiver should be granted, including but not limited to the information set forth below.
  1. The information required from waiver applicants shall include the following, in addition to any other information that the CCPO shall require:

      (i) a description of the information that the waiver applicant seeks to have excluded from the doing business database; and

      (ii) an explanation of the applicant’s reason or reasons for seeking a waiver from including this information in the doing business database.

  1. The information required from agencies shall include the following, in addition to any other information that the CCPO may require:

      (i) whether there is a compelling need to obtain essential goods, services or construction from the person seeking the exemption;

      (ii) whether no other reasonable alternative exists in light of such considerations as cost, uniqueness and the critical nature of such goods, services or construction to the accomplishment of the agency’s mission;

      (iii) the efforts undertaken by the agency to obtain from the waiver applicant the information required to establish the doing business database in accordance with subdivision 20 of § 3-702 of the administrative code; and

      (iv) whether the agency believes that it would be in the best interests of the city for the waiver application to be granted.

§ 12-08 Basis for Waiver.

A waiver may be granted in the following circumstances:

  1. When the CCPO finds that a waiver would be in the best interests of the city. Such a finding shall only be made upon a determination that:

      (i) there is a compelling need to obtain such essential goods, services or construction from the person seeking the exemption; and

      (ii) no other reasonable alternative exists in light of such considerations as cost, uniqueness and the critical nature of such goods, services or construction to the accomplishment of the agency’s mission.

  1. When a person is doing business with the city by virtue of the city’s exercise of its powers of eminent domain.

§ 12-09 Efforts to Obtain Data.

A waiver shall be granted only after substantial efforts have been made by the CCPO to obtain the information. Such efforts may include any efforts made by the agency at the direction of the CCPO.

Chapter 13: Indigent Defense Plan For the City of New York

§ 13-01 Definitions.

Assigned Counsel Panels. Panels of private attorneys certified by Screening and Advisory Committees appointed by the Appellate Division, First and Second Judicial Departments, respectively, to represent indigent persons for purposes of Article 18-B of the County Law.

Office of the Assigned Counsel Plan. The Office of the Assigned Counsel Plan (the “OACP”), established pursuant to subdivision (3) of section 722 of the County Law, is responsible for management of the City’s Criminal Defense Panels. The OACP is overseen by two Administrators in consultation with the Presiding Justices of the First and Second Judicial Departments.

Criminal Defense Panels. Panels of attorneys appointed by the Appellate Division, First and Second Judicial Departments, respectively, upon the recommendation of Screening or Advisory Committees established pursuant to the rules of those courts. The panels are administered by the OACP in accordance with the rules of the Appellate Division, First and Second Judicial Departments. Attorneys on the Criminal Defense Panels represent indigent defendants in criminal matters as defined in section 722-a of the County Law, as set forth below.

Family Law Panels. Assigned Counsel Panels administered by the Appellate Division, First and Second Judicial Departments, in accordance with the rules of those courts. Attorneys on the Family Law Panels represent indigent persons in the Appellate Division, First and Second Judicial Departments, and in the Supreme Court, the Surrogate’s Court and the Family Court within those Departments, in proceedings under sections 262 or 1120 of the Family Court Act and section 407 of the Surrogate’s Court Procedure Act.

Indigent Defense Organization Oversight Committee. Committees established by the Appellate Division, First or Second Judicial Departments, that monitor Providers.

Indigent Person. Any person who is financially unable to obtain counsel and is entitled to representation pursuant to section 722 of the County Law.

Provider. A private institutional legal services organization selected by CJC in accordance with 43 RCNY § 13-02 to represent indigent persons.

§ 13-02 Competitive Procurement Process.

The Office of the Criminal Justice Coordinator (“CJC”) shall select Providers through a competitive procurement process in accordance with the rules of the Procurement Policy Board. These Providers, along with attorneys appointed from appropriate Assigned Counsel Panels of the First and Second Judicial Departments, will provide indigent legal services as described below. Indigent Defense Organization Oversight Committees, as established by the First or Second Judicial Departments, shall monitor the Providers.

§ 13-03 Criminal Matters.

In classification proceedings under Article 6-C of the Correction Law and in any other criminal matters in which an indigent person is entitled to counsel pursuant to Article 18-B of the County Law, CJC shall select Providers in each of the City’s five counties to provide representation at the trial level. In appellate matters in which an indigent person is entitled to counsel pursuant to Article 18-B of the County Law, CJC shall select providers in each of the First and Second Judicial Departments to provide representation in such matters. Providers shall be assigned by the court at the trial and appellate levels. In any case where, due to conflict of interest or other appropriate reason, Providers decline or are unable to represent an indigent person at the trial or on appeal in a criminal matter, counsel shall be furnished by attorneys assigned by the ACP from the appropriate Criminal Defense Panel of the Appellate Division, First or Second Judicial Department, or by alternate providers selected by the CJC through the City’s procurement process.

§ 13-04 Family Law Matters.

Indigent persons who are parties in proceedings brought under sections 262 or 1120 of the Family Court Act or section 407 of the Surrogate’s Court Procedure Act shall be represented by attorneys selected by the First and Second Judicial Departments from the Family Law Panels of the Appellate Division, First or Second Judicial Department, and Providers selected by CJC. Attorneys shall be assigned by the court.

§ 13-05 Investigative, Expert, and Other Services in Matters Handled by 18-B Attorneys.

The authorization to attorneys appointed to represent indigent persons to obtain necessary investigative, expert, or other services and the determination of the amount of reasonable compensation therefor shall be made pursuant to section 722-c of the County Law by the court in which the matter is pending. Expert and Ancillary Services Roster (EASR). The OACP shall compile and administer an Expert and Ancillary Services Roster consisting of the names of investigators, experts and other professionals who have indicated their availability to provide services to attorneys who represent indigent persons in criminal matters pursuant to this chapter, together with the curriculum vitae of such persons. The OACP shall make that roster available on a regular basis to panel members who represent indigent persons pursuant to Article 18-B of the County Law. Persons desiring to be included in the EASR shall apply to the OACP and the outcome of that application shall be subject to a background review which may consist, inter alia, of a criminal background check, verification of credentials, and verification of educational and professional attainments. The Ancillary Services Roster shall be provided simply as an informational service to courts and panel members; inclusion of a name on the roster shall not be construed as an endorsement by the OACP of the qualifications or competence of persons so named and shall not be cited by any person as such an endorsement. Application for Appointment of Investigator, Expert, or other Service Providers. Attorneys representing indigent persons pursuant to this chapter may seek the appointment of an investigator, expert or other service provider pursuant to section 722-c of the County Law, whether or not the name of such person appears on the EASR. Investigators, experts, or other ancillary service providers not listed on the EASR, will be subject to a background review prior to payment being processed for services.

§ 13-06 Payment Procedures and Submission of Vouchers in Criminal Matters Handled by Attorneys on Criminal Panels and Experts Assigned to Matters Handled by 18-B Attorneys.

Attorneys on the Criminal Panels representing or who have represented indigent persons pursuant to Article 18-B of the County Law and this chapter, and investigators, experts, and other persons providing or who have provided services in accordance with Article 18-B of the County Law and this chapter shall apply to the court in which the representation was furnished or services provided pursuant to sections 722-b and 722-c of the County Law to fix his or her reasonable compensation for such representation or services. Applications shall be made on the appropriate voucher form or template promulgated by the OACP. Vouchers shall be signed by the judge presiding or who presided in the matter in which the attorney provided representation or the person provided ancillary services, approving the amount for which payment is being sought by the voucher, and shall be submitted to the OACP for review prior to payment by the comptroller.

Chapter 15: New York City ‘Made In New York Marketing Credit Program’

§ 15-01 Purpose and general description.

(a) The "Made in New York Marketing Credit Program" ("the Program"), established and administered by the Mayor's Office of Media and Entertainment ("MOME"), offers "Made in New York" film and television productions a number of opportunities to promote their project in major media markets that are City-Owned assets or are privately owned and operated media outlets with which the City has established relationships. Qualified "Made in New York" productions that apply and are approved for this Program will be provided media outlets including, but not limited to, bus shelters, subway cars, and broadcasts on New York City Media group television stations. The amount of media advertising offered will be determined by certain production costs as defined in this rule. In exchange for the marketing credits, recipients will be required to make a monetary contribution to a New York City cultural institution approved by the New York City Department of Cultural Affairs or a non-profit organization with proposals for program funding on a Participatory Budgeting New York City ballot. The "Made in NY" logo must be included in all media advertising.
  1. The purpose of this rule is to outline the application process for the Program. These procedures govern the allocation of marketing credits, including the application process, standards for assessing evaluations, and other provisions necessary and appropriate for fulfilling the purposes of the Program.
  2. In order to receive the marketing credit, a marketing credit recipient must donate a Community Benefit to a New York City cultural institution or non-profit organization within thirty (30) days of completion of the authorized applicant’s media campaign.

§ 15-02 Definitions.

As used in this rule, the following terms have the following meanings:

  1. Application form. “Application form” means the document created by the Office that is submitted by an authorized applicant to receive “Made in New York Marketing Credit Program” credit after it has completed production of a qualified film. The application form will include a list of non-profit cultural institutions and community organizations approved by the New York City Department of Cultural Affairs and Participatory Budgeting New York City, respectively, as eligible for Program donations.
  2. Authorized applicant. “Authorized applicant” means a qualified film/television production and/or distribution company that is distributing a qualified film.
  3. Certificate of marketing credit. “Certificate of marketing credit” means a certificate issued by the Office which establishes the amount of media assets for which the approved applicant has qualified, based on the Office’s analysis according to the provisions of this chapter. The certificate will include such information as name and address of the authorized applicant; name of the qualified film in connection with which the credit applies; the amount of media assets to be received by the approved applicant; and a disclaimer stating that actual receipt of the marketing credit is subject to availability of media assets for the Program.
  4. Completion of the application. “Completion of the application” means that all questions on an application have been fully addressed by an authorized applicant and that any additional supporting documents requested by the Office have been provided in a manner sufficient to allow the Office to properly evaluate the application.
  5. Commissioner. “Commissioner” means the Commissioner of the New York City Office of Media and Entertainment.
  6. Community Benefit. “Community Benefit” means a monetary contribution to a New York City cultural institution or community organization of (1) a minimum of $10,000 (ten thousand dollars) for any qualified film with qualified production costs equal to $10,000,000 (ten million dollars) or more, or (2) 0.1% (one-tenth per cent) of the qualified production costs for any qualified film having qualified production costs less than $10,000,000 (ten million dollars).
  7. Effective date. “Effective date” means the date of the first usage of the marketing credit, i.e., when media assets are first utilized. The effective date is determined by the authorized applicant based on media asset availability provided by the Office.
  8. End credit requirements. “End credit requirements” means those acknowledgements that an authorized applicant agrees to include in each qualified film as a condition for participation in the Program. Each qualified film must include in the end credits: (1) the “Made in NY” logo; and (2) the phrase “The ‘Made in NY’ logo is a trademark of the City of New York and is used with the City’s permission.”
  9. Feature-length film. “Feature-length film” means a production intended for commercial distribution to a motion picture theater or directly to the public that is sixty (60) minutes or longer in length.
  10. Marketing credit. “Marketing credit” means an allocation of media assets available free of charge to a qualified film.
  11. Media asset. “Media asset” means available advertising media including, but not limited to, bus shelters, subway cars, taxi TV, and broadcasts on New York City Media group television stations that the Office makes available for this purpose.
  12. New York City cultural institution or community organization. “New York City cultural institution or non-profit community organization” means an Internal Revenue Code § 501(c)(3) non-profit organization identified by the New York City Department of Cultural Affairs or through Participatory Budgeting New York City as an organization which supports and strengthens New York City’s creative community or neighborhoods.
  13. Office or MOME. “Office” or “MOME” means the New York City Mayor’s Office of Media and Entertainment.
  14. Priority number. “Priority number” means the number assigned by the Office to determine allocation of the marketing credit. “Priority number” will be based on the date an authorized applicant has submitted a completed application; provided, however, that in the event that there is more than one application with the same date, priority will be given to the authorized applicant having the earliest anticipated date of release of the qualified film.
  15. Production costs. “Production costs” means any costs for tangible property used and services performed directly and predominantly (including pre-production and post-production) in the production of a qualified film. “Production costs” do not include (1) costs for a story, script or scenario to be used for a qualified film or (2) wages, salaries or other compensation for writers, directors (including music directors), producers, actors and performers (other than background actors or other performers with no scripted lines). “Production costs” generally include below-the-line costs, as defined by industry standards, including but not limited to technical and crew production costs, such as expenditures for film production facilities props, makeup, wardrobe, film processing, camera, sound recording, set construction, lighting, shooting, editing and meals.
  16. Qualified film. “Qualified film” means a feature-length film, television film, television special, and/or television series, regardless of the medium by means of which it is created or conveyed, of which: (1) 75% of its total shooting days take place in New York City, or (2) 75% of its production costs are “qualified production costs.” A “qualified film” must have production costs of at least $400,000 and must have completed production no earlier than twenty-four (24) months prior to the date of application to the Program. A “qualified film”, if distributed exclusively over the Internet, must be distributed through a paid subscription-based streaming service or advertiser supported streaming service. “Qualified film” does not include a production for which records are required under § 2257 of Title 18, United States Code, to be maintained with respect to any performer in such production (reporting of books, films, etc. with respect to sexually explicit conduct).
  17. Qualified film/television production and or distribution company. “Qualified film/television production and or distribution company” means a corporation, partnership, limited partnership, or other entity or individual that is principally engaged in the distribution of a qualified film, controls the qualified film during release, and is responsible for payment of the cultural component.
  18. Qualified production costs. “Qualified production costs” means the below-the-line production costs only to the extent such costs are incurred directly in New York City and are attributable to the use of tangible property or the performance of services within New York City directly and predominantly in the production (including pre-production and post-production) of a qualified film.
  19. Release of a qualified film. “Release of a qualified film” means that the post-production work in connection with a qualified film has been finished and a cut negative, video master or other final locked form of the qualified film is ready for broadcast or delivery to a distributor.
  20. Television film. “Television film”, also known as “movie-of-the-week,” “MOW,” “made for television movie,” or “mini-series,” means a production intended for distribution on television, whether free or through a subscription-based service, or on the Internet through a subscription-based service, that has a running time of at least sixty (60) minutes in length (exclusive of commercial advertisement and interstitial programming).
  21. Television special. “Television special” means a production intended for distribution on television, whether free or through a subscription-based service, or on the Internet through a subscription-based service, that has a running time of at least twenty (20) minutes in length (exclusive of commercial advertisement and interstitial programming). “Television special” includes, but is not limited to, an awards show and a telethon.
  22. Television series. “Television series” means a regularly occurring production on television, whether free or through a subscription-based service, or on the Internet through a subscription-based service, that has a running time of at least twenty (20) minutes in length per episode (exclusive of commercial advertisement and interstitial programming). “Television series” includes, but is not limited to, late-night variety series, daily news series, situation comedies, single camera comedies, reality series, game shows, morning news and newsmagazine shows.

§ 15-03 Application process.

For the purposes of this chapter, only an authorized applicant will be eligible to apply for the New York City Made in New York Marketing Credit Program.

  1. The application form required for the Program will be available on the Office’s website, and must be completed and submitted by an authorized applicant to the Office through its U.S. postal mail or email address as set forth in the application form. In addition, applicants may submit such application through private delivery services including, but not limited to, Federal Express, United Postal Service (UPS) or private messenger. In addition to providing contact information including its name, postal address, electronic (email) address and fax number, the applicant must also submit information about total production costs at film production facilities in and outside of New York; the total number of shooting days in and outside of New York; and any other information the Office determines is necessary to properly evaluate the application.
  2. An authorized applicant may submit an application for a qualified film that is a television series no more than once a year.
  3. The authorized applicant must include information about the date that the qualified film is set to make its debut in theatres, on television, online, on DVD or any and all media. The application must be received at least sixty (60) days prior to the release date.
  4. Applications will be reviewed by the Office in the order they are received.
  5. The Office will approve or disapprove the application based upon criteria outlined in 43 RCNY § 15-04(a).
  6. The Office will advise the authorized applicant about whether its request has been approved, by U.S. postal service or electronic mail, no later than twenty (20) business days from receipt of the application. The notification will inform the applicant of such approval or disapproval. If approved, the notification will inform the applicant the amount and type of media assets available for the promotional media campaign during the dates requested on the application.

§ 15-04 Evaluation of applications.

(a) In order to be approved for marketing credit, each of the following requirements must be satisfied:

   (1) the application is substantially complete;

   (2) the authorized applicant is a producer and/or distributor with a qualified film or television series;

   (3) the authorized applicant’s qualified production costs paid or incurred are attributable to the use of tangible property or the performance of services in the production of a qualified film;

   (4) the authorized applicant has identified the cultural institution or community organization to which it will make a payment as part of the Program; and

   (5) the authorized applicant intends to comply with the end credit requirements set forth in 43 RCNY § 15-02(h).

  1. In the event that all of the criteria outlined in this section are not met, or in the event that the Office concludes that the authorized applicant has knowingly submitted false or misleading information, the Office will disapprove the application.

§ 15-05 Allocation of New York City Made in New York marketing credit.

(a) When an application has been approved the Office will allocate the credit in order of priority based upon submission date of an application and subject to the availability of media assets. In the event that an marketing credit recipient is unable to use the media assets after the credit has been allocated, such recipient will lose its "first come, first served" status and will be accommodated subject to availability without guarantee of reallocation.
  1. The Office will allocate the credit based on a project’s qualified production costs. The amount of qualified production costs will determine which of the following three tiers an applicant would qualify for:

   Tier 1: Qualified production costs of $10 million (ten million dollars) or more

   Tier 2: Qualified production costs of at least $5 million (five million dollars) and less than $10 million (ten million dollars)

   Tier 3: Qualified production costs of at least $400,000 (four hundred thousand dollars) and less than $5 million (five million dollars)

  1. Depending on the availability of media assets, the Office will determine the amount and type of media assets assigned to each tier, which will be allocated to marketing credit recipients according to their tier category.
  2. Productions that have qualified production costs of $10 million or more, or are produced (i) by a company of which more than 5 percent of the beneficial ownership is owned directly or indirectly by a publicly traded entity, or (ii) by a company having more than $35 million in annual revenue, must pay for the costs, if any, of printing materials for distribution through the media assets assigned under the credit.
  3. If a marketing credit recipient does not pay the Community Benefit within thirty (30) days of the completion of such recipient’s media campaign, such recipient may be required to make a payment to MOME in an amount equivalent to 100% of the value of the media assets received, as determined by MOME.

§ 15-06 Appeal process.

(a) If an authorized applicant's application is disapproved by the Office, or if a marketing credit recipient disagrees with the amount of the media assets granted by the Office, each such person or entity may appeal such determination.
  1. In the case of an appeal from a disapproval of an application, an authorized applicant can request an appeal by sending a letter to the Mayor’s Office of Media and Entertainment, Attn: Commissioner, to the address and by the means specified in the application form, within thirty (30) days from the date of the denial letter issued by the Office.
  2. In the case of an appeal from a determination of the amount of media assets, a marketing credit recipient can request an appeal by sending a letter to the Commissioner as provided in Subdivision (b), within thirty (30) days from the date of issuance of the certificate of marketing credit.
  3. If an authorized applicant or a marketing credit recipient fails to request an appeal within thirty (30) days of the Office’s denial decision and/or allocated amount of media assets, such decision will be deemed final.
  4. Upon receipt of a timely letter of appeal, the Commissioner will appoint an appeal officer within the Office to review the matter. The appeal officer may reverse, affirm or modify the original determination and provide a written explanation of his or her finding in a report to the Commissioner. The Commissioner or his or her designee must issue a final order within sixty (60) days of the report. A copy of the final order will be issued to the appealing person or entity within ten (10) days after the date the Commissioner or his or her designee renders the final order.

§ 15-07 Final report.

As part of the community benefit component of the Program, within thirty (30) days after the completion of a marketing credit recipient’s media campaign, such recipient must submit to the Office by U.S. mail, email or fax, proof of payment to the identified New York City cultural institution, in the form of a cancelled check or letter of acknowledgment. Such recipients who have not satisfied this component of the Program will be required to make a payment to MOME in an amount equivalent to 100% of the value of the media assets received, as determined by MOME.

§ 15-08 Record retention.

Each marketing credit recipient must maintain records, in paper or electronic form, of any qualified productions costs used to calculate the media assets received through this Program for a minimum of three years from the date of filing of the tax return applicable to the time period for which such recipient claims the marketing credit. The Office has the right to request such records upon reasonable notice.

Chapter 14: Environmental Remediation

Subchapter 1: City Voluntary Cleanup Program Requirements

§ 43-1401 Purpose.

The purpose of this subchapter is to provide for the orderly and efficient administration of chapter nine of title twenty-four of the administrative code of the city of New York, the City voluntary cleanup program.

§ 43-1402 Definitions.

For the purposes of this subchapter, the following terms shall have the following meanings:

  1. “Affordable housing development” means a development that will be built by a developer on a qualified local brownfield site where at least twenty percent of the housing units are affordable to families that earn no more than eighty percent of the average median income of an area, as determined by the United States department of housing and urban development, and that has been issued a letter of interest from a federal, state or local housing subsidy program.
  2. “Alternatives analysis” means a study undertaken to develop and evaluate options for remedial action in accordance with 43 RCNY § 43-1407(i).
  3. “Applicant” means a person who has submitted a request to participate in the City voluntary cleanup program but is not yet an enrollee.
  4. “Change of use” means the transfer of title to all or part of a qualified local brownfield site that results in a change in the party or parties implementing a site management plan; the erection of any structure on the site; the creation of a park or other public or private recreational facility on the site, or any activity that is likely to disrupt or expose contamination or to increase direct human exposure to contamination; or any other conduct that will or may tend to significantly interfere with an ongoing or completed remedial program at such site and the continued ability to implement the engineering and institutional controls associated with such site, including such condition as may be included in a property’s site management plan.
  5. “Citizen participation plan” is a site-specific plan for citizen involvement in a remedial program, as provided in § 24-905 of the administrative code of the city of New York, § 27-1417(2) of the New York state environmental conservation law, and 6 New York codes, rules, and regulations (“NYCRR”) part 375-1.10(c).
  6. “Community facility development” means a development that will be built by a developer on a qualified local brownfield site where the development provides specific benefits to the local community, including but not limited to, a community facility use pursuant to the zoning resolution.
  7. “Community protection statement” means a statement contained in the remedial action work plan that provides a summary description of specific efforts to be taken during the remedial action to provide for protection of the health and safety of residents and others in the vicinity of the site. The community protection statement is intended to be written in concise, non-technical language to assist community members in understanding the full range of protective actions to be taken during the remedial program.
  8. “Concentrated solid or semi-solid hazardous wastes” means solid or semi-solid hazardous wastes present in surface or subsurface soil, surface water, sediment or groundwater in a concentrated form, such as precipitated metallic salts, metal oxides, or chemical sludges.
  9. “Contaminant” means hazardous waste or, as provided for in an agreement between the office and a state agency, petroleum.
  10. “Contamination” or “contaminated” means the presence of hazardous waste or, as provided for in an agreement between the office and a state agency, petroleum in any environmental media, including soil, historic fill, surface water, groundwater, soil vapor, air, or indoor air.
  11. “Coordinated brownfield site” means any real property, for which an agreement between the office and a state agency authorizes participation in the program according to a mutually agreed-upon form of oversight or for which federal law requires a portion of an investigation or remediation to be supervised and/or approved by a federal agency, where such federal agency has expressly authorized in writing that such real property may be investigated and/or remediated according to a mutually agreed-upon form of oversight. Pursuant to such mutually agreed-upon form of oversight, the state and/or federal agency shall supervise and/or approve a portion of such investigation and/or remediation, and the city shall supervise and/or approve the remainder of such investigation and/or remediation. The city shall coordinate investigation and remediation of a coordinated brownfield site through communications with such state and/or federal agency. Such mutually agreed-upon form of oversight shall be subject to any and all appropriate restrictions as may be required by law, rule, or regulation or agreed to by the parties. The office shall not prevent or interfere significantly with any proposed, ongoing, or completed remedial program of such state or federal agency at a coordinated brownfield site.
  12. “Day” means a calendar day.
  13. “Declaration of covenants and restrictions” means controls on the use of a site that are listed on the deed or that are established under a hazardous materials e-designation and that seek to prevent potential exposure to any residual contamination remaining at the site.
  14. “Director” means the director of the office of environmental remediation or such individual’s designee.
  15. “Disposal” means the abandonment, discharge, deposit, injection, dumping, spilling, leaking or placing of any contaminant so that such contaminant or any related constituent thereof may enter the environment. Disposal also means the thermal destruction of a contaminant and the burning of a contaminant as fuel for the purpose of recovering usable energy.
  16. “Document repository” means a repository of documents from a site’s remedial program that is established in a publicly accessible building near the location of such site or on a publicly accessible website administered by the office.
  17. “Ecological resources” means all flora and fauna and the habitats that support them, excluding such biota as pets, livestock, and agricultural and horticultural crops.
  18. “Emergency” means a spill, or other event or condition, whether natural or human-made, as a result of which a release or threatened release of contamination presents an immediate threat to life, health, property, or natural resources.
  19. “Engineering control” means any physical barrier or method employed to actively or passively contain, stabilize, or monitor contamination, restrict the movement of contamination to ensure the long-term effectiveness of a remedial program, or eliminate potential exposure pathways to contamination. Engineering controls include, but are not limited to, pavement, caps, covers, subsurface barriers, soil vapor barriers, soil vapor extraction systems, slurry walls, building ventilation systems, monitoring devices, fences, access controls, provision of alternative water supplies via connection to an existing public water supply, adding treatment technologies to such water supplies, and installing filtration devices on private water supplies.
  20. “Enrollee” means an applicant who has been accepted into the City voluntary cleanup program and has signed a local brownfield cleanup agreement.
  21. “Environment” means any water including surface or groundwater, sediment, water vapor, any land including land surface or subsurface, air including soil vapor, fish, wildlife, other biota, all other natural resources and humans.
  22. “Feasible” means suitable to site conditions, capable of being successfully carried out with available technology, implementable and cost effective.
  23. “Financial assurance” means a financial mechanism or multiple financial mechanisms, including, but not limited to, surety bonds, trust funds, letters of credit, and insurance, as determined to be adequate by the office, to ensure the long term implementation, maintenance, monitoring and enforcement of the engineering and institutional controls at a qualified local brownfield site. x “Grossly contaminated media” means soil, sediment, surface water or groundwater that contains sources or substantial quantities of mobile contamination in the form of non-aqueous phase liquid that is identifiable either visually, through strong odor, by elevated contaminant vapor levels or is otherwise readily detectable without laboratory analysis.
  1. “Groundwater” means water below the land surface in a saturated zone of soil or rock. This includes perched water separated from the main body of groundwater by an unsaturated zone.
  2. “Hazardous materials e-designation” means the designation of an (E) pursuant to § 11-15 of the zoning resolution of the city of New York, because of potential soil contamination at a rezoned property.

aa. “Hazardous waste” means a hazardous waste as defined in § 27-1301 of the New York state environmental conservation law.

bb. “Historic fill material” means non-indigenous material, deposited or disposed of to raise the topographic elevation of real property, which material may have been contaminated prior to emplacement, and is in no way connected with the subsequent operations at the location of the emplacement and which includes, without limitation, construction and demolition debris including uncontaminated solid waste resulting from the construction, remodeling, repair and demolition of utilities, structures, land clearing and roads. It may also include solid waste resulting from dredge spoils, incinerator residue, demolition debris, coal ash, fly ash, and non-hazardous waste. “Historic fill material” does not include any material which is chemical production waste or waste from processing of metal or mineral ores, residues, slag or tailings. In addition, historic fill material does not include a municipal solid waste site built after nineteen hundred sixty two.

  1. “Institutional control” means any non-physical means of enforcing a restriction on the use of real property, including a declaration of covenants and restrictions, that limits human or environmental exposure, restricts the use of groundwater, provides notice to potential owners, operators, or members of the public, or prevents actions that would interfere with the effectiveness of a remedial program or with the effectiveness and/or integrity of operation, maintenance, or monitoring activities at or pertaining to a qualified local brownfield site.

dd. “Interim remedial measure” means activities to address both emergency and non-emergency site conditions, which can be undertaken without extensive investigation and evaluation, to prevent, mitigate or remedy environmental damage or the consequences of environmental damage attributable to a site, including, but not limited to, the following activities: construction of diversion ditches; collection systems; tank removal; leachate collection systems; construction of fences or other barriers; installation of water filters; provision of alternative water systems; removal of source areas; or plume control.

ee. “Local brownfield cleanup agreement” or “agreement” means an agreement executed by an applicant and the office that sets forth the parties’ responsibilities in the remediation of a site in the City voluntary cleanup program.

ff. “Non-aqueous phase liquid” means a contaminant that is a liquid which may be denser or lighter than water and does not mix easily or dissolve in water, but remains as a separate phase.

gg. “Notice holder” means the enrollee named in the notice of completion issued by the office, as well as such enrollee’s successors and assigns who have received a transfer of such notice in accordance with 43 RCNY § 43-1408(g).

hh. “Notice of completion” means a written notice that is issued by the office to an enrollee who has successfully investigated and remediated a qualified local brownfield site to the satisfaction of the office. Notice of completion shall have the same meaning as certificate of completion, as defined in § 24-902 of the administrative code of the city of New York.

  1. “Office” means the office of environmental remediation.

jj. “Off-site contamination” means any contamination that has emanated from a remedial site beyond the real property boundaries of such site, via movement through air, indoor air, soil, surface water or groundwater.

kk. “On-site contamination” means any contamination that is within the real property boundaries of a qualified local brownfield site, the source of which is located within or beyond the boundaries of such site.

ll. “Operable unit” means a portion of the remedial program for a site that for technical or administrative reasons can be addressed separately to investigate, eliminate or mitigate a release, threat of release or exposure pathway resulting from the site contamination. Operable units may address geographical portions of a site, media specific action, specific site problems, or an initial phase of a remedial action, or may consist of any set of remedial actions performed over time or any actions that are concurrent but located in different parts of a site. An operable unit may be proposed by the office or an enrollee; however, only the office can approve the use of operable units.

  1. “Ownership” means the possession of equity in the capital, the stock or the profits of an entity or, in the case of real property, fee title to such property.

nn. “Participant” means an enrollee who either:

   1. was the owner of the qualified local brownfield site at the time of disposal or discharge of contaminants, or

   2. is otherwise a person responsible according to applicable principles of statutory or common law liability, unless such person’s liability arises solely as a result of such person’s ownership or operation of or involvement with the site subsequent to the disposal or discharge of contaminants.

oo. “Permanent cleanup” means a cleanup or remedy that would allow a site to be used for any purpose without restriction and without reliance on the long-term employment of institutional or engineering controls.

pp. “Person” means an individual, trust, firm, joint stock company, limited liability company, corporation, joint venture, partnership, association, state, municipality, commission, political subdivision of a state, public benefit corporation or any interstate body.

qq. “Petroleum” means petroleum as defined in section 172 of the New York state navigation law and § 17-1003 of the New York state environmental conservation law.

rr. “Professional engineer” means an individual or firm licensed or otherwise authorized under article one hundred forty-five of the New York state education law to practice engineering.

ss. “Program” means the City voluntary cleanup program pursuant to chapter nine of title twenty-four of the administrative code of the city of New York.

tt. “Qualified environmental professional” means a person who possesses sufficient specific education, training, and experience necessary to exercise professional judgment to develop opinions and conclusions regarding the presence of releases or threatened releases to the surface or subsurface of a property or off-site areas, sufficient to meet the objectives and performance factors for the areas of practice identified by this chapter. Such a person must:

   1. hold a current professional engineer’s or a professional geologist’s license or registration issued by the state or another state, or hold a baccalaureate degree or higher in engineering or geology and have the equivalent of three years of full-time relevant experience in site investigation and remediation of the type detailed in this subchapter; or

   2. be a site remediation professional licensed or certified by the federal government, a state, or a recognized accrediting agency, to perform investigation or remediation tasks and have the equivalent of three years of full-time relevant experience.

uu. “Qualified local brownfield site” or “site.”

   1. Except as provided in paragraph 3 of this subdivision, “qualified local brownfield site” or “site” means:

      A. any real property within the city, the redevelopment or reuse of which may be complicated by the presence or potential presence of detectable levels of contamination, as defined in § 24-902 of the administrative code of the city of New York as light to moderate levels of contamination, including real property containing historic fill material and real property rejected from or ineligible for the state brownfield cleanup program pursuant to title 14 of article 27 of the New York state environmental conservation law and excluding any real property that meets the definition of a coordinated brownfield site; or

      B. any real property that meets the definition of a coordinated brownfield site.

   2. “Qualified local brownfield site” or “site” may include a site designated as an E-designation hazardous material site that otherwise meets the requirements of this sub- division.

   3. “Qualified local brownfield site” or “site” does not include real property:

      A. containing discharges of petroleum, except coordinated brownfield sites;

      B. listed or proposed for listing in the state registry of inactive hazardous waste disposal sites pursuant to § 27-1305 of the New York state environmental conservation law and classified as either (i) causing or presenting an imminent danger of causing irreversible or irreparable damage to the public health or environment – immediate action required, (ii) significant threat to the public health or environment – action required, (iii) does not present a significant threat to the public health or environment – action may be deferred, or (iv) site properly closed – requires continued management;

      C. a site which the office determines is a suspected inactive hazardous waste site pursuant to § 27-1303 of the New York state environmental conservation law;

      D. listed or proposed to be listed on the national priorities list pursuant to 42 U.S.C. § 9605;

      E. subject to an order, agreement, stipulation, or permit providing for cleanup pursuant to the New York state navigation law or the New York state environmental conservation law, except as authorized by the New York state department of environmental conservation upon agreement with the office; or

      F. subject to any on-going city, state, or federal environmental enforcement action, including ongoing investigations, related to the contamination which is at or emanating from the real property.

vv. “Release” means any pumping, pouring, emitting, emptying, or leaching, directly or indirectly, of a contaminant so that the contaminant or any related constituent thereof, or any degradation product of such a contaminant or of a related constituent thereof, may enter the environment, or the disposal of any contaminant.

ww. “Remedial action work plan” means a written document providing for the development and implementation of a remedial program for contamination within the boundaries of the qualified local brownfield site; provided, however, that a participant shall also be required to provide in the remedial action work plan for the development and implementation of a remedial program for contamination that has emanated from the qualified local brownfield site.

  1. “Remedial investigation” means a process undertaken to determine the nature and extent of contamination at a site or operable unit of a site. The remedial investigation emphasizes data collection and site characterization, and generally is performed in support of the selection of a remedy.

yy. “Remedial investigation work plan” means a written document establishing a schedule of field activities to determine the nature and extent of contamination at and/or emanating from a qualified local brownfield site.

zz. “Remedial investigation report” means a report that fully characterizes the nature and extent of contamination at and/or emanating from a qualified local brownfield site.

aaa. “Remedial program” means all activities undertaken to investigate, design, eliminate, remove, abate, control, or monitor existing health hazards, existing environmental hazards, potential health hazards, and potential environmental hazards in connection with a site, and all activities undertaken to manage waste and contamination from a site including, but not limited to, the following:

   1. Site characterization and remedial investigation activities needed to develop and evaluate remedial alternatives;

   2. Interim remedial measures;

   3. Design activities;

   4. Remedial actions, including, but not limited to, construction related activities and the implementation of remedial treatment technologies, including without limitation grading, contouring, trenching, grouting, capping, excavation, transporting, incineration and other thermal treatment, chemical treatment, biological treatment, or construction of groundwater and/or leachate collection and treatment facilities;

   5. Post-remedial site management including, but not limited to, the operation, maintenance, and monitoring of remedial treatment technologies, reporting, and the certification of institutional and engineering controls;

   6. Restoration of the environment;

   7. Appropriate involvement by government and by the public; and

   8. Oversight by the office.

bbb. “Sediment” means unconsolidated particulate material found at the bottom of lakes, rivers, streams and other water bodies at bed elevations equal to or lower than the mean high water level.

  1. “Significant threat” shall have the meaning set forth at 6 NYCRR part 375-2.7(a).

ddd. “Site contact list” shall mean a list of persons, government agencies, groups, or organizations, including, but not limited to the borough president and council member representing the area in which the qualified local brownfield site is located; the community board for the district in which the qualified local brownfield site is located; any residents living on the site, including tenants and renters; adjacent property owners and residents; the administrator or operator of any school or day care facility located on or near the site; brownfield opportunity area community based organizations and other community based organizations or representatives, including local media, that request to be placed on the list or that are identified by the office based on the office’s best efforts, including through consultation with community boards; the New York state department of environmental conservation, and any person who has requested to be placed on the list. If the site is within two blocks of another community board district(s) or brownfield opportunity area, the additional community board(s) or brownfield opportunity area community based organizations shall be added to the site contact list.

eee. “Site management” means the management of physical barriers and methods and non-physical means to limit human and environmental exposure to contamination at and/or emanating from a site, as well as the implementation of any necessary monitoring, reporting, certification and/or operation and maintenance of a remedy, after the issuance of a notice of completion.

fff. “Source area” or “source” means a portion of a site or area of concern at a site where the investigation has identified a discrete area of soil, soil vapor, sediment, surface water or groundwater containing contaminants in sufficient concentrations to migrate in that medium, or to release significant levels of contaminants to another environmental medium, which could result in a threat to public health or the environment. A source area typically includes, but is not limited to, a portion of a site where a substantial quantity of any of the following are present:

   1. Concentrated solid or semi-solid hazardous substances;

   2. Non-aqueous phase liquids; or

   3. Grossly contaminated media.

ggg. “Sustainability statement” means a written summary to be included in the executive summary of a remedial action work plan that describes proposed actions to be taken by an enrollee, including the enrollee in conjunction with the office, during the course of a remedial program to increase sustainability of a remediation. Examples of sustainable actions include those designed to reduce carbon emissions, reduce storm water discharges, reduce use of virgin resources and attain specific sustainability goals reported by the city in PlaNYC 2030, the report issued by the office of long-term planning and sustainability in April 2007 that provides a blueprint for sustainable long-term growth for the city.

hhh. “Volunteer” means an enrollee other than a participant, including without limitation a person whose liability arises solely as a result of such person’s ownership or operation of or involvement with the qualified local brownfield site subsequent to the disposal or discharge of contaminants, provided, however, that such person exercises appropriate care with respect to contamination found at the site by taking reasonable steps to:

   1. stop any continuing release;

   2. prevent any threatened future release; and

   3. prevent or limit human, environmental, or natural resource exposure to any previously released contamination.

  1. “Waste” means (1) any garbage, refuse, or sludge from a waste water treatment plant, water supply treatment plant, or air pollution control facility, (2) any other discarded material, whether or not such material may eventually be used for some other purpose, including solid, liquid, semi-solid, or contained gaseous material resulting from industrial, commercial, mining, and agricultural operations or from community activities, and (3) source, special nuclear or by-product material as defined in the atomic energy act of 1954, as amended, except as may be provided by existing agreements between the state of New York and the government of the United States. Waste does not include solid or dissolved material in domestic sewage, or solid or dissolved materials in irrigation return flows or industrial discharges which are point sources subject to permits under New York state environmental conservation law article 17 of the New York state environmental conservation law.

§ 43-1403 Eligibility.

  1. Ineligible sites. Any real property that does not meet the definition of a qualified local brownfield site shall be ineligible for the City voluntary cleanup program.
  2. Ineligible parties. A person is ineligible for participation in the City voluntary cleanup program if the person is subject to:

   1. A pending action or proceeding relating to the qualified local brownfield site in any civil or criminal court in any jurisdiction, or before any city, state or federal administrative agency or body, wherein the city, state or federal government seeks penalties, including those for natural resource damage claims, or the investigation, removal, or remediation of contamination;

   2. An order providing for the investigation, removal, or remediation of contamination relating to the proposed qualified local brownfield site; or

   3. An agreement or stipulation providing for the investigation, removal, or remediation of contamination relating to the proposed qualified local brownfield site, except where the proposed qualified local brownfield site is a coordinated brownfield site.

  1. Public interest consideration. The office may reject an application to participate in the City voluntary cleanup program upon a determination that the public interest would not be served by granting such application. In making this determination, the office shall consider, but is not limited to, the complexity of the remedial work, the degree of on-site and off-site contamination, and, for sites that would require significant office staff resources to oversee, the availability of staff resources to oversee the project.

§ 43-1404 Applications.

  1. Pre-application. A person interested in applying to the City voluntary cleanup program shall request a pre-application meeting with the office. At the pre-application meeting, the person and representatives of the office shall discuss the suitability of the property for participation in the program. Following the meeting, the office may issue a pre-enrollment letter stating its intent to work with the applicant on the development of a complete application and to consider its eligibility for acceptance of the site into the program. Following the meeting and prior to the applicant submitting an application, the office shall assist the applicant in the applicant’s performance of all activities necessary to develop a complete application. Such activities shall include, but not be limited to, scoping of the remedial investigation work plan, review of the results of the remedial investigation and development of the remedial investigation report, scoping of the remedial action work plan, and development of a citizen participation plan.
  2. Timing of application. The applicant shall submit an application after a remedial investigation report and remedial action work plan have been prepared, provided that at the office’s discretion, an applicant may apply to the program with only a remedial investigation work plan. However, the office may not accept a site into the program until the applicant submits a completed remedial investigation report that demonstrates eligibility for the program.
  3. Application contents.

   1. Applications to participate in the City voluntary cleanup program shall be submitted to the office in such form and manner and containing such information as the office may require.

   2. Applications, including attachments, shall be submitted electronically.

   3. Applications shall include (A) a completed application form, (B) a completed City voluntary cleanup agreement, pursuant to 43 RCNY § 43-1405, executed by the applicant, and (C) a remedial investigation report and a remedial action work plan or, when permitted or otherwise required by the office, a remedial investigation work plan.

   4. Applications shall also include a citizen participation plan, a proposed document repository, a notice of the application and a draft fact sheet describing all work plans or reports submitted with the application. The notice of application and fact sheet must be approved by the office prior to release to the site contact list.

   5. Applications shall state the basis for which the property meets the definition of a qualified local brownfield site.

      A. An application that states that a property meets the definition of a qualified local brownfield site based on 43 RCNY § 43-1402(uu)(1)(A) shall include a confirmation of such statement from a qualified environmental professional, made after the completion of the remedial investigation report. The office shall not execute a final City voluntary cleanup agreement for entry into the program without receipt of this confirmation. The office shall independently evaluate whether the property meets the definition of a qualified local brownfield site based on 43 RCNY § 43-1402(uu)(1)(A).

      B. An application that states that a property meets the definition of a qualified local brownfield site based on its meeting the definition of a coordinated brownfield site shall include a detailed statement setting forth the environmental conditions that are the basis for the site being a coordinated brownfield site. In addition to technical information regarding the environmental conditions, such statement shall specify whether the environmental conditions have already been reported to the state and/or federal government and whether the state and/or federal government has issued any approval or disapproval of any work plan at the site. The applicant shall include with the application copies of any and all documents concerning the federal and state involvement in the cleanup.

  1. General review and approval of application. The office shall review the application and notify the applicant whether the application is accepted or rejected.

   1. Upon receipt of an application, the office shall determine whether the application contains sufficient information for the office to determine eligibility for the program. The office shall make this determination during the initial public comment period and shall use its best efforts to render a determination within fourteen days of receipt of the application. If the application contains sufficient information, the office shall deem the application complete.

   2. If the application is deemed to be incomplete, the office shall advise the applicant, specifying the information that must be submitted or supplemented to make the application complete.

  1. Admission into the City voluntary cleanup program. The office shall evaluate complete applications for eligibility and, if the applicant is eligible, shall admit the applicant into the program.

   1. Qualified local brownfield sites that are not coordinated brownfield sites. If the office determines that a property meets the definition of a qualified local brownfield site based on 43 RCNY § 43-1402(uu)(1)(A) and the applicant meets all other conditions of eligibility pursuant to 43 RCNY § 43-1403, the office shall admit the applicant into the program.

   2. Qualified local brownfield sites that are coordinated brownfield sites. When an applicant proposes a property as a coordinated brownfield site for entry into the City voluntary cleanup program, the following process shall apply:

      A. if the office determines that such property is a coordinated brownfield site, and if the applicant meets all other conditions of eligibility pursuant to 43 RCNY § 43-1403, the office shall admit the applicant into the program. For a coordinated brownfield site:

         i. the office shall coordinate investigation and remediation with the appropriate state or federal agency; and

         ii. the office shall not issue a notice of completion for such property until a notice is received from the applicable state and/or federal agency that the cleanup has been completed.

      B. if the office determines that such property is not a coordinated brownfield site because the state and/or federal agency has not provided express written authorization, and the office determines that a portion of such property may meet the definition of a qualified local brownfield site based on 43 RCNY § 43-1402(uu)(1)(A), the office may allow the applicant to amend its application to (i) describe the site boundaries, pursuant to 43 RCNY § 43-1405(a)(1), that meet the definition of a qualified local brownfield site based on 43 RCNY § 43-1402(uu)(1)(A), and (ii) comply with subparagraph A of paragraph five of subdivision c of this section. The office shall evaluate the modified application pursuant to paragraph one of this subdivision.

         i. If the applicant does not so modify the application, the office shall reject the application.

         ii. If the applicant does modify the application and the applicant is admitted into the program, the office subsequently may, upon request of the applicant or enrollee, amend the description of site boundaries in the City voluntary cleanup agreement to expand the boundaries of such qualified local brownfield site to include the remainder of such property or another portion of such property, provided that all investigation and remediation required by state or federal law to be supervised and/or approved by a state and/or federal agency have been completed on such property or such other portion of such property and appropriately documented in a remedial action report.

      C. if neither the provisions of subparagraphs A or B apply, the office shall reject the application.

  1. Citizen participation upon entering the City voluntary cleanup program.

   1. Simultaneously with the submission of an application to participate in the City voluntary cleanup program, the applicant shall ensure that the document repository contains all relevant site documents and shall distribute an office-approved notice of application and an office-approved fact sheet describing any associated work plans or reports to the site contact list. Prior to submission of an application, applicants shall work with the office to obtain approval of the notice of application and fact sheet. The initial public comment period shall not begin until the applicant certifies that the office-approved notice of application and fact sheet have been distributed to the site contact list.

   2. The office shall publish the notice of application in the city record.

   3. The office may require, based on the size or scale of a project or the number of people who may be impacted by a project, that an enrollee publish the notice of application in a community newspaper.

   4. The office reserves the right to require a second initial public comment period if a substantial change to an application occurs after the initial notice of the application is made to the site contact list according to paragraph 1 of this subdivision.

§ 43-1405 City Voluntary Cleanup Agreements.

  1. The following terms and conditions apply to City voluntary cleanup agreements required for eligibility in the program.

   1. Description of site boundaries. The City voluntary cleanup agreement shall contain a description of the site’s boundaries.

   2. The enrollee shall provide access to the site and all relevant information regarding activities at the site, including all environmental studies and testing, in accordance with § 24-903(f) of the administrative code of the city of New York.

   3. Enrollment fee.

      A. The enrollee shall pay an enrollment fee of one thousand dollars. An enrollment fee shall not be required unless an application is accepted and a City voluntary cleanup agreement is executed.

      B. The enrollment fee is payable upon execution of the City voluntary cleanup agreement by the office. The office shall not execute a City voluntary cleanup agreement without receipt of any applicable fee.

      C. Each payment shall be in the form of a certified check or money order made payable to the New York city office of management and budget and shall be sent to:

         New York City Mayor’s Office of Environmental Remediation Attn.: Budget Manager 253 Broadway, 14th Fl. New York, NY 10007

The enrollee shall include the project name and project number on its check.

      D. The enrollee shall provide written notification within 90 days of any change in its address.

      E. The office may waive all or part of the enrollment fee where:

         i. a qualified local brownfield site is within a New York state brownfield opportunity area pursuant to § 970-r of the New York state general municipal law and its proposed development and reuse is consistent with the strategic brownfield goals established in a brownfield opportunity area plan and/or as stated in a letter to the office from a brownfield opportunity area grantee who has an executed brownfield opportunity area contract with the state;

         ii. the proposed development on the qualified local brownfield site is an affordable housing development;

         iii. the proposed development on the qualified local brownfield site is a community facility development; or

         iv. a contiguous property is subdivided into two or more qualified City voluntary sites for the purpose of facilitating the administration of the City voluntary cleanup program. In such case, the Office may waive the enrollment fee for any of the second and/or subsequent qualified local brownfield sites; or

         v. the proposed development is a City capital construction project.

   4. Emergencies. The enrollee shall promptly take all appropriate action, in accordance with all applicable laws, rules and regulations, to prevent, abate, minimize and/or report any emergency, including reporting to the New York state department of environmental conservation actual or potential environmental releases. The enrollee shall immediately notify the office’s project manager upon becoming aware of any emergency. Nothing in this paragraph shall be deemed to limit the authority of the office or the city to take, direct, or order all appropriate action to protect public health and the environment or to prevent, abate, respond to, or minimize an actual or threatened release from the site in accordance with applicable law. Nothing herein shall limit the enrollee’s responsibility to report such conditions and to take such other action as required by city, state or federal law, rule or regulation.

   5. Force majeure. No enrollee shall suffer any penalty or be subject to any proceeding or action if it cannot comply with any requirement of a City voluntary cleanup agreement to implement all or part of a remedial program as a result of a force majeure event.

   6. Dispute resolution.

      A. The enrollee shall submit any dispute relating to the local brownfield cleanup agreement to the designated individual under the City voluntary cleanup agreement in writing no more than fifteen days after the enrollee knew or should have known of the facts that are the basis of the dispute. Such dispute shall be decided by the designated individual solely on the basis of papers submitted by the parties. The designated individual shall render a written decision and furnish a copy thereof to the enrollee. The written decision shall be the final determination of the office, unless the enrollee files a written appeal of that decision with the designated appeal individual within twenty days of receipt of that decision.

      B. Upon receipt of the written appeal pursuant to subparagraph A of this paragraph, the designated appeal individual shall review the record and decision. The designated appeal individual shall take one of the following actions, with written notice to the enrollee:

         i. remand the matter to the office’s project manager for further negotiation or information, if it is determined that the matter is not ripe for review;

         ii. on the basis of the record as it exists before the designated appeal individual, affirm or reverse the determination of the designated individual.

      C. The decision of the designated appeal individual shall be the final determination of the office.

      D. The designated individual shall be the person designated to decide disputes, and shall be a chief of a bureau of the office.

      E. The designated appeal individual shall be the person designated to review dispute decisions, and shall be the director of the office or such other individual as designated by the director of the office.

      F. The invocation of dispute resolution shall not extend, postpone, or modify obligations with respect to any item not in dispute unless the office aggrees in writing to an extension, postponement or modification.

      G. The office shall keep an administrative record of dispute resolution proceedings.

   7. Indemnification. The enrollee shall indemnify the city, its representatives and employees from any claim, suit, action, and cost arising out of or resulting from the fulfillment or attempted fulfillment of the City voluntary cleanup agreement.

   8. Notice of agreement. The enrollee shall provide written notice of a City voluntary cleanup agreement to any prospective purchaser, lessee, tenant or occupant of any interest in a qualified local brownfield site.

   9. Reporting to state and federal agencies.

      A. If a condition that requires reporting and/or notice to a state and/or federal agency, including a release of petroleum, is found to exist on a site during the course of the remedial program, then the enrollee shall immediately notify the appropriate state and/or federal agency in accordance with applicable law and regulation and provide copies of such notification to the office. In such event the office reserves the right to modify the City voluntary cleanup agreement or terminate it in accordance with paragraph ten of this subdivision.

      B. If such condition renders the site a property for which state or federal law requires the investigation or remediation, or a portion of an investigation or remediation, to be supervised and/or approved by a state and/or federal agency, then the office shall review the site pursuant to 43 RCNY § 43-1404(e). If the office determines that the site is no longer eligible for the City voluntary cleanup program, then the office shall terminate the agreement, in accordance with paragraph ten of this subdivision.

   10. Termination of the City voluntary cleanup agreement.

      A. Termination of the agreement by the enrollee. The enrollee may terminate a City voluntary cleanup agreement at any time and for any reason, provided that:

         i. The enrollee provides written notice to the office and site contact list at least fifteen days in advance of the termination; and

         ii. At the time of termination, as determined by the office, the site is in no worse condition, from an environmental and public health perspective, than before the applicant entered into the City voluntary cleanup agreement. The enrollee may seek dispute resolution within fifteen days of the effective date of the notice of determination by the office, as provided in 43 RCNY § 43-1410(d).

      B. Termination of the agreement by the office. The Office may terminate the City voluntary cleanup agreement for cause, including, but not limited to, if the enrollee or the site is no longer eligible for the City voluntary cleanup program, the enrollee provided information or made statements that are materially inaccurate or incomplete, or the enrollee failed to substantially comply with the agreement’s terms and conditions, including, without limitation, the failure to initiate, proceed with, or complete the remedial program in accordance with its schedule.

         i. Prior to termination of a City voluntary cleanup agreement by the office, the office shall:

            (a) notify the enrollee in writing of its intention to terminate the City voluntary cleanup agreement and the reasons for the intended termination; and

            (b) provide the enrollee with a reasonable opportunity of thirty days to correct deficiencies.

         ii. The City voluntary cleanup agreement shall be terminated thirty-one days after the effective date of the office’s notice, as provided in 43 RCNY § 43-1410(d), unless the enrollee:

            (a) seeks dispute resolution within fifteen days of the effective date of the notice; or

            (b) cures the deficiency within the thirty day period after the effective date of the notice.

         iii. If the office determines that the deficiency has been cured, the proposed termination of the City voluntary cleanup agreement shall be withdrawn.

         iv. If the office determines that the recipient has not proven that the deficiency has been cured, the office shall provide notice to the recipient. The recipient shall have fifteen days after the effective date of the notice, as provided in 43 RCNY § 43-1410(d), to seek dispute resolution. If the recipient does not seek dispute resolution within such fifteen day period, the City voluntary cleanup agreement shall be terminated on the sixteenth day.

         v. Nothing herein shall preclude the office from terminating a City voluntary cleanup agreement with less than thirty days notice if the New York state department of environmental conservation determines that the site constitutes a significant threat. Prior to terminating a City voluntary cleanup agreement pursuant to this clause, the office shall provide the enrollee with written notice, indicating the reason for the termination, and shall provide the enrollee with an opportunity to challenge in writing the finding of the office that the New York state department of environmental conservation had determined that the site constitutes a significant threat. The enrollee shall submit papers supporting such challenge to the office no later than fifteen days from the effective date of the written notice of termination, as provided in 43 RCNY § 43-1410(d). Such challenge shall be decided by the director solely on the basis of papers submitted by the enrollee. The director shall render a written decision and furnish a copy thereof to the enrollee. The director’s written decision shall be the final determination of the office.

      C. Termination by either the enrollee or the office does not affect the enrollee’s obligations to pay fees pursuant to paragraph three of this subdivision and to indemnify the city pursuant to paragraph seven of this subdivision, until and including the date of termination.

   11. Additional terms and conditions. The office may require that a City voluntary cleanup agreement include additional terms and/or conditions.

  1. The City voluntary cleanup agreement shall be binding while in effect on each party, its successors and assignees. No change in the ownership or corporate or business status of any party or of the site shall alter any signatory’s responsibilities under the City voluntary cleanup agreement.

§ 43-1406 Work plans and reports.

  1. Work plans. All work undertaken as part of a remedial program under a City voluntary cleanup agreement shall be detailed in a work plan, unless determined otherwise by the Office.

   1. All work plans shall:

      A. be prepared and implemented in accordance with the requirements of all applicable laws, rules and regulations;

      B. consider applicable Office guidance;

      C. be submitted to the Office for review and approval, pursuant to subdivision d of this section; and

      D. include, at a minimum, a schedule for performance of anticipated activities with sufficient detail to allow the Office to evaluate the work plan.

   2. All field activities conducted pursuant to an approved work plan shall be overseen by a qualified environmental professional. Such qualified environmental professional may be an employee or a consultant retained by the enrollee to supervise the field activities.

   3. The enrollee shall notify the office at least seven days in advance of any field activities to be conducted under an office-approved work plan, as well as any pre-construction meetings, job progress meetings, substantial completion meeting and inspection, and final meeting and inspection. The office may attend such activities, meetings and inspections, provided, however, that the enrollee may exclude the office from portions of activities, meetings and inspections in which privileged matters are discussed.

   4. The office shall use its best efforts to approve, modify, or reject a proposed work plan within forty-five days of receipt by the office or within fourteen days of the close of the public comment period for such work plan, whichever is later.

  1. Reports.

   1. All reports including, but not limited to, all reports, design documents, plans or site management plans, that are submitted to the office in draft or final form pursuant to a local brownfield cleanup agreement for any phase of the remedial program shall be submitted in accordance with the schedule contained in an approved work plan, report or design document or any subsequent schedule agreed to and approved by the office.

   2. Reports shall include, but not be limited to, all:

      A. environmental or health data generated relative to the site;

      B. information, other than in subparagraph A of this paragraph, obtained as part of the implementation of the work plan; and

      C. assessments and evaluations required by the work plan.

   3. Each final report, shall contain a certification by the individuals with primary responsibility for the day to day performance of the activities under the work plan. The certification shall:

      A. be on such form as provided by the office;

      B. include the certification of a professional engineer; and

      C. certify that all activities were performed in full accordance with the approved work plan and any modifications approved by the office.

   4. The office shall use its best efforts to approve, modify, or reject a report within thirty days of receipt by the office.

  1. Remedial action report.

   1. In accordance with the schedule contained in an approved remedial action work plan or an addendum to such remedial action work plan for detailed remedial design, a remedial action report shall be submitted that includes but is not limited to:

      A. site boundaries;

      B. a description of activities completed pursuant to the approved remedial action work plan or an addendum to such remedial action work plan for detailed remedial design;

      C. a description of any engineering or institutional controls that will be used, including mechanisms to implement, maintain, monitor, and enforce such controls; and

      D. a site management plan.

   2. The remedial action report shall be prepared in accordance with all relevant statutes, rules and regulations and upon consideration of applicable state written guidance as made available on the website of the New York state department of environmental conservation.

   3. The remedial action report shall be prepared and certified as provided in paragraph three of subdivision b of this section.

   4. The remedial action report certification shall contain a certification by the individuals with primary responsibility for the day to day performance of the activities under the work plan. The certification shall include the certification of a professional engineer and state that:

      A. such individuals had primary direct responsibility for the implementation of the subject remedial program;

      B. all requirements of the remedial program have been complied with;

      C. the data demonstrates that remediation requirements have been or will be achieved in accordance with time frames contained in the approved remedial program;

      D. all activities described in the report have been performed in accordance with the remedial program and any subsequent changes as agreed to and approved by the office;

      E. any use restrictions, any other institutional controls, any engineering controls and/or any site management plan requirements are contained in a duly recorded declaration of covenants and restrictions; and

      F. any required financial assurance mechanisms required pursuant to 43 RCNY § 43-1410(c) have been executed.

   5. The office shall review the remedial action report, the submissions made in the course of the remedial program, and any other relevant information regarding the site and make a determination as to whether the goals of the remedial program have been or will be achieved in accordance with established time frames and whether all investigation and remediation required by state or federal law to be supervised and/or approved by a state and/or federal agency have been completed.

   6. Upon the office’s approval of the remedial action report, the office shall issue a written notice of completion and a green property certification, pursuant to subchapter three of this chapter.

  1. Review of work plans and reports.

   1. The office shall approve, propose modifications to or reject a proposed work plan or report submitted pursuant to a local brownfield cleanup agreement.

   2. Approval. Upon the office’s written approval of a work plan or report, such work plan or report shall:

      A. be incorporated into and become an enforceable part of the local brownfield cleanup agreement pertaining to the site’s remedial program;

      B. in the case of a:

         i. work plan, be implemented in accordance with the schedule contained therein; or

         ii. report, the approval shall initiate the next phase of the remedial program in accordance with the local brownfield cleanup agreement; and

      C. such work plan or report shall be placed by the enrollee in the site document repository.

   3. Proposed modification. If the office requests that the enrollee modify a work plan or report or the office provides the enrollee with a modified work plan, the office shall provide the enrollee with the reasons for such requested modification in writing. Within fifteen days of such notice, the enrollee shall elect in writing to:

      A. modify the work plan or report as requested by the office, or accept an office modified work plan or report, within thirty days of receipt of the notice;

      B. invoke dispute resolution, pursuant to 43 RCNY § 43-1405(a)(6); or

      C. terminate the local brownfield cleanup agreement, pursuant to 43 RCNY § 43-1405(a)(10).

   4. Rejection. If the office rejects a work plan or report, the office shall provide the enrollee with the reasons for such rejection in writing. Within fifteen days of that written notice, the enrollee shall elect in writing to:

      A. modify the rejected work plan or report, within thirty days of receipt of the written notice;

      B. invoke dispute resolution, pursuant to 43 RCNY § 43-1405(a)(6); or

      C. terminate the local brownfield cleanup agreement, pursuant to 43 RCNY § 43-1405(a)(10).

§ 43-1407 Remedial program.

  1. The remedial program shall be fully protective of public health and the environment including, but not limited to, soil, groundwater according to its classification pursuant to § 17-0301 of the New York state environmental conservation law, drinking water, surface water, air (including indoor air), sensitive populations (including children), and ecological resources (including fish and wildlife).

   1. Remedial actions shall be selected and the remedial action work plan shall be approved based upon consideration of the following:

      A. A remedial program that achieves a permanent cleanup of a contaminated site is preferred over a remedial program that does not do so.

      B. The selection of remedial actions shall not interfere with, be inconsistent with, or otherwise impair remedial actions that may be developed or implemented by a state or federal agency.

      C. Consistent with federal or state statute, rule or regulation or state guidance document DER-10, issued by the division of environmental remediation of the New York state department of environmental conservation, the selection of remedial actions may take into account the current, intended, and reasonably anticipated future land uses of the site and its surroundings.

      D. The selection of remedial actions for soil cleanup shall be pursuant to the cleanup tracks defined in 6 NYCRR part 375-3(e) and state guidance document DER-10, issued by the division of environmental remediation of the New York state department of environmental conservation. For cleanups performed pursuant to track four of that part, the enrollee shall demonstrate that the remedial action would be protective of public health and the environment. This demonstration shall be included in the alternatives analysis developed pursuant to subdivision i of this section.

      E. All remedial action work plans, shall be approved by the office in consultation with the New York city department of health and mental hygiene.

   2. To achieve stated goals, the remedial program may include, but is not limited to, the actions set forth in this paragraph.

      A. A site may be divided into operable units.

      B. Multiple work plans and reports may be approved for a site, pursuant to 43 RCNY § 43-1406.

      C. The remedial program shall address bulk storage tanks or containment vessels, source removal and control, and groundwater protection and control measures, pursuant to subdivisions b through d of this section.

      D. Remedial actions selected for a site shall consider the use of remedial actions that the office has determined to have been demonstrated to be feasible and to meet the remediation requirements.

      E. Remedial actions selected for a site may consider the use of innovative technologies that are demonstrated to be feasible to meet the remediation requirements.

      F. Where the remedial program for a site requires ongoing site management, the enrollee shall develop a site management plan for the site that shall include, as applicable for the remedial program, the following plans:

         i. institutional and engineering control plan;

         ii. monitoring plan;

         iii. operation and maintenance plan; and

         iv. reporting plan.

      G. The remedial program at a site shall analyze the impact of contamination at a site on the following environmental media:

         i. soil;

         ii. groundwater;

         iii. surface water and sediments;

         iv. soil vapor; and

         v. ambient air.

      H. Where an interim remedial measure is proposed at a site, such measure shall be conducted pursuant to a work plan approved by the office. Such work plan shall require the submission of a final report upon conclusion of the interim remedial measure.

  1. Bulk storage tanks and containment vessels.

   1. If any storage tank(s) subject to regulation pursuant to 6 NYCRR parts 596, 597, 598, 599, 610, 612, 613, or 614 is discovered and found not to be registered or not to be operated in accordance with the applicable regulatory requirements, such tank(s) shall be registered and either closed in accordance with regulatory requirements or brought into compliance with the applicable regulatory requirements.

   2. Where petroleum storage tanks or chemical storage tanks are discovered on site during the course of the remedial program, such tanks shall be addressed pursuant to state and federal law and in programs designed for that purpose.

   3. Where any contaminant is found to be stored on the site in containment vessels, such as storage tanks, drums, or transformers, such contaminants shall be addressed pursuant to state and federal law and in programs designed for that purpose.

  1. Source removal and control measures. The following is the hierarchy of source removal and control measures that are to be used to remediate a site, ranked from most preferable to least preferable:

   1. Removal and/or treatment. All sources, concentrated solid or semi-solid hazardous substances, dense non-aqueous phase liquid, light non-aqueous phase liquid and/or grossly contaminated media shall be removed and/or treated; provided however, that if the removal and/or treatment of all such contamination is not feasible, such contamination shall be removed or treated to the greatest extent feasible.

   2. Containment. Any source remaining following removal and or treatment pursuant to this subdivision shall be contained; provided however, that if full containment is not feasible, such source shall be contained to the greatest extent feasible.

   3. Elimination of exposure. Exposure to any source remaining following removal, treatment and/or containment pursuant to this subdivision shall be eliminated through additional measures, including but not limited to, as applicable, the timely and sustained provision of alternative water supplies and the elimination of volatilization into buildings; provided however, that if such elimination is not feasible such exposure shall be eliminated to the greatest extent feasible.

   4. Treatment of source at the point of exposure. Treatment of the exposure resulting from a source of environmental contamination at the point of exposure, including but not limited to, as applicable, wellhead treatment or the management of volatile contamination within buildings, shall be considered as a measure of last resort.

  1. Groundwater protection and control measures. The remedial program shall satisfy the requirements for groundwater contamination of 6 NYCRR part 375 and shall be consistent with any agreement between the office and a state and/or federal agency.
  2. Scope of the investigation.

   1. The goals of a remedial investigation include, but are not limited to, the following:

      A. delineation of the areal and vertical extent of the contamination at, and emanating from, all media at the site and the nature of that contamination;

      B. characterization of the surface and subsurface characteristics of the site, including topography, surface drainage, stratigraphy, depth to groundwater, any aquifers that have been impacted or have the potential to be impacted, and proximity to tidal surface waterbodies;

      C. identification of the sources of contamination, the migration pathways and actual or potential receptors of contaminants;

      D. evaluation of actual and potential threats to public health and the environment; and

      E. production of data of sufficient quantity and quality to support the necessity for, and the proposed extent of, remediation and to support the evaluation of proposed remedial alternatives.

   2. Such investigation shall emphasize data collection, sampling and monitoring, as necessary, and shall include but not be limited to:

      A. characterization of site geologic and hydrogeologic conditions, including groundwater flow, contaminant movement, and the characteristics of the groundwater system;

      B. assessment of the existing and potential impact of groundwater contamination on water supply wells in New York city, including those for drinking water supply, surface water quality, air quality, and indoor air quality;

      C. sampling and analysis necessary to gather sufficient information to evaluate human and environmental exposure pathways, as well as any actual or potential adverse effects due to site contamination; and

      D. delineation of the nature and extent of contamination sufficient to determine the necessity for and the proposed extent of remediation, in order to support the development and evaluation of proposed alternatives in the remedy selection process.

   3. Historical data may be submitted in lieu of collecting new data or to supplement new data, provided that the appropriate quality assurance requirements are met and that the data were collected in a manner consistent with appropriate sampling protocols. All information relevant to the ongoing work must be referenced in the investigation reports, including sampling protocols employed.

   4. On-site contamination. Enrollees must fully investigate and characterize the nature and extent of contamination on the qualified local brownfield site.

   5. Off-site contamination. Responsibility for off-site contamination is determined by the enrollee’s status as follows:

      A. A volunteer shall perform a qualitative exposure assessment of the contamination that has migrated from the site consistent with § 27-1415(2)(b) of the New York state environmental conservation law and state guidance document DER-10, issued by the division of environmental remediation of the New York state department of environmental conservation. For sites being addressed by a volunteer, the volunteer has no obligation to implement a remedy to address an off-site exposure identified by this assessment.

      B. A participant shall fully investigate and characterize the nature and extent of contamination that has migrated or emanated from the site to off-site locations.

   6. The remedial investigation report must demonstrate whether conditions at the site without remediation meet the applicable unrestricted use soil cleanup objectives set forth in the table in 6 NYCRR § 375-6.8(a).

   7. Where the applicable unrestricted use soil cleanup objectives set forth in the table in 6 NYCRR § 375-6.8(a) will not be achieved, any determination that the requirements of the brownfield cleanup program have been met without the need for remediation shall be supported by a remedial alternatives analysis.

  1. Remedial action selection.

   1. Remedial actions shall be selected upon consideration of the following ten factors:

      A. Overall protectiveness of the public health and the environment.

      B. Standards and criteria. The remedial actions shall:

         i. conform to standards and criteria that are generally applicable, consistently applied, and officially promulgated; that are directly applicable; or that are not directly applicable but are relevant and appropriate, unless good cause exists to dispense with conformity. Good cause exists if any of the following is present: (a) the proposed action is only part of a complete program or project that will conform to such standard or criterion upon completion; (b) conformity to such standard or criterion will result in greater risk to the public health or to the environment than alternatives; (c) conformity to such standard or criterion is technically impracticable from an engineering or scientific perspective; or (d) the program or project will attain a level of performance that is equivalent to that required by the standard or criterion through the use of another method or approach.

      C. Long-term effectiveness and permanence: a program or project that achieves a complete and permanent cleanup of the site is preferred over a program or project that does not do so.

      D. Reduction in toxicity, mobility or volume of contamination through treatment: a program or project that permanently and significantly reduces the toxicity, mobility or volume of contamination is to be preferred over a program or project that does not do so. The following is the hierarchy of technologies and factors to be considered in selecting a remedial action, ranked from the most preferable to the least preferable:

         i. destruction of contamination, on-site or off-site;

         ii. separation or treatment of contamination, on-site or off-site;

         iii. solidification or chemical fixation of contamination, on-site or off-site; and

         iv. control and isolation of contamination, on-site or off-site.

      E. Short-term impacts and effectiveness.

      F. Ability to be implemented.

      G. Cost-effectiveness, including capital costs and annual site maintenance plan costs.

      H. Community acceptance.

      I. Land uses, provided that the office determines that there is reasonable certainty associated with such uses. In assessing reasonable certainty, the office shall consider:

         i. the current, intended, and reasonably anticipated future land uses of the site and its surroundings in the selection of the remedy for soil remediation;

         ii. the office’s determination on the use of the site shall be in accordance with subdivision k of this section; and

         iii. the reasonably anticipated future use of the site and its surroundings, which shall be documented in the analysis of alternatives, taking into consideration factors including, but not limited to, the following:

            (a) current use and historical and/or recent development patterns;

            (b) applicable zoning laws and maps;

            (c) brownfield opportunity areas pursuant to § 970-r of the New York state general municipal law;

            (d) applicable comprehensive community master plans, local waterfront revitalization plans as provided for in article forty-two of the New York state executive law, or any other applicable land use plan formally adopted by the city of New York;

            (e) proximity to real property currently used for residential use, schools and childcare facilities, and to commercial, industrial, agricultural, and/or recreational areas;

            (f) any written or oral comments on the proposed use that are submitted by members of the public through activities performed under the citizen participation plan pursuant to 43 RCNY § 43-1409(c);

            (g) environmental justice impacts, which for purposes of this section include the extent to which the proposed use may reasonably be expected to cause or increase a disproportionate burden on the community in which the site is located, including low-income minority communities, or to result in a disproportionate concentration of commercial or industrial uses in what has historically been a mixed use or residential community;

            (h) federal or state land use designations;

            (i) population growth patterns and projections;

            (j) accessibility to existing infrastructure;

            (k) proximity of the site to important cultural resources, including federal or state historic or heritage sites or Native American religious sites;

            (l) natural resources, including proximity of the site to important federal, state, or city natural resources, including waterways, wildlife refuges, wetlands, or critical habitats of endangered or threatened species;

            (m) potential vulnerability of groundwater to contamination that might emanate from the site, including proximity to wellhead protection and groundwater recharge areas and other areas identified by the state’s comprehensive groundwater remediation and protection program established in title thirty-one of article fifteen of the New York state environmental conservation law;

            (n) proximity to flood plains;

            (o) geography and geology; and

            (p) current institutional controls applicable to the site.

      J. Sustainability of the remedy.

   2. Enrollees shall, based upon the characterization of the nature and extent of contamination on-site and qualitative exposure assessment, propose a remedy for the contamination present on the site and address further contaminant migration from the site.

   3. Participants shall also, based upon the characterization of the nature and extent of contamination that has migrated from the site, propose a remedy which addresses the off-site contamination.

   4. The office shall approve, a remedy for a site after consideration of an alternatives analysis, including an evaluation consistent with subdivision i of this section presented in a site specific remedial action work plan.

   5. Selection of a remedial action. The enrollee may select the remedial action from an office-approved alternatives analysis.

  1. Application of soil cleanup objectives.

   1. General. The office may approve a remedial program that utilizes different tracks and soil cleanup objectives for different uses between different areas of a site, provided that such areas can be defined and described in the declaration of covenants and restrictions and that the necessary institutional and engineering controls can be effectively imposed, implemented, operated, monitored, and maintained in accordance with the office-approved site management plan.

   2. Cleanup objectives for other media. The enrollee shall evaluate exposure to public health and the environment resulting from contamination in all other environmental media and shall propose cleanup objectives to eliminate or mitigate the exposure. The enrollee shall include any cleanup objectives approved by the office for other media in the alternatives analysis to ensure that the remedial program meets the requirements of this subdivision and subdivision i of this section.

  1. Cleanup tracks. For sites or portions of sites where the office has determined that remediation is needed to meet the remedial program requirements, each remedial alternative that is developed and evaluated shall, in addition to all other requirements in this subdivision and subdivision i of this section, conform to the requirements of one of the following cleanup tracks defined below:

   1. Track one: unrestricted use. The following provisions apply to a site, or portion thereof, being remediated pursuant to track one:

      A. The remedial program shall achieve a cleanup level that will allow the site to be used for any purpose without any restrictions on the use of the site as described in paragraph one of subdivision k of this section.

      B. The soil component of the remedial program shall achieve the unrestricted soil cleanup objectives pursuant to the table in 6 NYCRR § 375-6.8(a) for all soils above bedrock.

      C. The remedial program shall not include the use of long-term institutional or engineering controls; provided, however, that a restriction on groundwater use may be included as a component of the remedial program if the enrollee:

         i. is a volunteer; and

         ii. has demonstrated to the office’s satisfaction that there has been a bulk reduction in groundwater contamination to asymptotic levels.

      D. The remedial program may include the short-term employment of institutional or engineering controls provided that:

         i. the remedial program includes an active treatment system, either ex-situ or in-situ, that will operate for, or require, no more than five years to meet the applicable contaminant-specific soil cleanup objectives or remedial goals established for contaminated media other than soils;

         ii. the remedial program requires the institutional control to assure the operation and integrity of the remedy, as well as to address potential human health exposures during this period; and

         iii. the remedial program includes a provision for the enrollee to implement an alternative remedy to meet the soil cleanup objectives in the event that the short-term institutional period is exceeded.

   2. Track two: Restricted use with generic soil cleanup objectives. The following provisions apply to a site, or portion thereof, being remediated pursuant to track two:

      A. The remedial program may provide for the restriction of the use of the site as described in paragraph two of subdivision k of this section.

      B. The soil component of the remedial program shall achieve the lowest of the three applicable contaminant-specific soil cleanup objectives for all soils above bedrock, as set forth in 6 NYCRR §§ 375-6.4, 375-6.5 and 375-6.6, except as provided in subparagraph C below.

      C. The requirement to achieve contaminant-specific soil cleanup objectives pursuant to the table in 6 NYCRR § 375-6.8(b) for all soils above bedrock shall not apply to soils at a depth greater than fifteen feet below ground surface, provided that:

         i. the soils below fifteen feet do not represent a source of contamination;

         ii. the declaration of covenants and restrictions for the site requires that any contaminated soils remaining at depth will be managed along with other site soils, pursuant to a site management plan;

         iii. off-site groundwater affected by on-site contamination does not exceed standards; and

         iv. on-site groundwater use is restricted. If the office determines that a waterfront site that is proposed for industrial use is susceptible to significant coastal erosion from severe storm events, the soil component of the remedial program must achieve the contaminant-specific soil cleanup objectives set forth in 6 NYCRR § 375-6.4(b)(3).

      D. The remedial program shall not use long-term institutional or engineering controls to achieve the restricted soil cleanup objectives. The use of short-term institutional or engineering controls is permitted, provided that:

         i. the remedial program includes an active treatment system, either ex-situ or in-situ, that will operate for, or require, no more than five years to meet the applicable contaminant-specific soil cleanup objectives or remedial goals established;

         ii. the remedial program requires the institutional control to assure the operation and integrity of the remedy, as well as to address potential human health exposures during this period; and

         iii. the remedial program includes a provision for the enrollee to implement an alternative remedy to meet the soil cleanup objectives in the event that the short-term institutional period is exceeded.

      E. The remedial program may include the use of long-term institutional or engineering controls to address contamination related to other media including, but not limited to, groundwater and soil vapor.

   3. Track three: Restricted use with modified soil cleanup objectives. The remedial program for a site being remediated pursuant to track three shall satisfy the provisions for a track two remedial program; provided, however, that the office may approve the modification of one or more of the contaminant-specific soil cleanup objectives set forth in the table in 6 NYCRR § 375-6.8(b) based upon site-specific data. Any such modification shall be performed in accordance with 6 NYCRR § 375-6.9 and in consultation with the New York state department of environmental conservation and/or the New York state department of health.

   4. Track four: Restricted use with site-specific soil cleanup objectives. The following provisions apply to a site, or portion thereof, being remediated pursuant to track four:

      A. In developing the site-specific soil cleanup objectives, the enrollee may, solely or in combination:

         i. use the soil cleanup objectives, as set forth in 6 NYCRR subpart 375-6, except if the office determines that a waterfront site that is proposed for industrial use is susceptible to significant coastal erosion from severe storm events, the enrollee may, solely or in combination, use the soil cleanup objectives as set forth in 6 NYCRR § 375-6.4(b)(1)-(3);

         ii. develop or modify site specific soil cleanup objectives, as set forth at 6 NYCRR § 375-6.9; or

         iii. propose site-specific soil cleanup objectives that are protective of public health and the environment.

      B. The remedial program may include the use of long-term institutional or engineering controls to remediate all media.

      C. Exposed surface soils in a track four remedy shall be remediated as follows:

         i. for residential use:

            (a) the top two feet of all exposed surface soils that are not otherwise covered by the components of the development of the site (such as buildings or pavement) shall not exceed the applicable contaminant-specific soil cleanup objectives pursuant to subparagraph B of paragraph two of this subdivision; and

            (b) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site shall satisfy the requirements of 6 NYCRR § 375-6.7(d).

         ii. for commercial use:

            (a) the top one foot of all exposed surface soils that are not otherwise covered by the components of the development of the site (such as buildings or pavement) shall not exceed the applicable contaminant-specific soil cleanup objectives pursuant to subparagraph B of paragraph two of this subdivision; and

            (b) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site shall satisfy the requirements of 6 NYCRR § 375-6.7(d).

         iii. for industrial use:

            (a) the top one foot of all exposed surface soils that are not otherwise covered by the components of the development of the site (such as buildings or pavement) shall not exceed the applicable contaminant-specific soil cleanup objectives pursuant to subparagraph B of paragraph two of this subdivision; and

            (b) where it is necessary to utilize off-site soil to achieve this requirement, the soil brought to the site shall satisfy the requirements of 6 NYCRR § 375-6.7(d).

   5. All tracks. For remedial programs under all tracks, the threat to public health and the environment resulting from contamination in environmental media other than soil shall be evaluated in the development of remedial alternatives and addressed in the alternatives analysis to ensure that the remedial program meets the requirements of this subchapter.

  1. Alternatives analysis.

   1. An alternatives analysis evaluates each remedial alternative developed for a qualified local brownfield site, using the selection factors set forth in subdivision f of this section.

   2. The enrollee shall prepare an alternatives analysis for each site, or operable unit of a site, unless the remedy proposed meets the requirements of track one.

   3. Contents of an alternatives analysis. Each alternatives analysis shall include, but is not limited to, the following:

      A. A description of each alternative evaluated in the analysis. The enrollee shall develop and evaluate alternatives that address:

         i. on-site contamination if the enrollee is a volunteer; or

         ii. on-site and off-site contamination if the enrollee is a participant.

      B. A discussion of how each alternative would achieve the requirements of the remedial program, including the track-specific requirements.

      C. An analysis of each alternative against the remedy selection factors set forth in subdivision f of this section, followed by a comparison of this analysis to any other alternatives under consideration.

      D. An evaluation of the reliability and viability of the long-term implementation, maintenance, monitoring, and enforcement of any proposed institutional or engineering controls set forth in subdivision l of this section.

      E. If applicable, an evaluation of feasible remedial alternatives that can achieve groundwater plume stabilization in accordance with subdivision d of this section.

      F. An identification of the alternative preferred by the enrollee.

      G. A summary of the proposed remedy and basis for concluding that the proposed remedy represents the best alternative among those considered.

      H. Any other information as required by the office.

   4. Alternatives to be evaluated. The enrollee shall develop the alternatives analysis in consultation with the office. The alternatives analysis shall consider at least one unrestricted alternative that meets the requirements of track one. The office may request that the alternatives analysis also shall consider at least one alternative that meets the requirements of track two.

   5. Plume stabilization. In developing remedies for a site where plume stabilization is a necessary component of the remedy, in accordance with subparagraph C of paragraph one of subdivision d of this section, and where such plume is emanating from an on-site source:

      A. A participant shall address, to the extent feasible, the on-site and off-site plume. This requirement includes such actions to maintain and monitor any stabilization of the plume.

      B. A volunteer shall address, to the extent feasible, the on-site plume and prevent or mitigate the further migration of any plume off-site at the site boundary. This requirement includes actions to maintain and monitor any stabilization of the plume.

  1. Remedial action work plan.

   1. The office shall issue a decision document establishing the remedy for a site. The remedial action work plan shall implement the decision document.

   2. The remedial action work plan shall provide for the development and implementation of the remedial program for:

      A. on-site contamination if the enrollee is a volunteer; or

      B. on-site and off-site contamination if the enrollee is a participant.

   3. A remedial action work plan shall include at a minimum:

      A. a summary of the site history and the nature and extent of contamination;

      B. remedial action objectives;

      C. a summary of the current, intended, and reasonably anticipated future uses of the site;

      D. identification of the cleanup track to be used for remediation of the site as provided in subdivision h of this section;

      E. identification and evaluation of any and all institutional or engineering controls to be employed as part of the site remedy as required pursuant to subdivision l of this section, if applicable, and subparagraph D of paragraph three of subdivision i of this section;

      F. an alternatives analysis as set forth in subdivision i of this section; and

      G. any other information as required by the office.

   4. A remedial action work plan shall serve as the remedial design document for a site and shall:

      A. be certified by a professional engineer for all engineering design and construction components;

      B. include, but not be limited to, the following:

         i. plans and specifications sufficient to construct the remedy;

         ii. a site health and safety plan;

         iii. a community air monitoring plan and community protection statement;

         iv. quality assurance and quality control plans for sampling, analysis, and construction; and

         v. where required by the office, a sustainability statement.

      C. include a program design for site management, if the remedy includes any institutional or engineering controls.

  1. Use of a site. A site or a portion of a site may be used for either unrestricted or restricted use.

   1. “Unrestricted use” means a lawful use without imposed restrictions, such as a declaration of covenants and restrictions or other land use controls. In reviewing applications for unrestricted use, the Office may consider area-wide or city-wide use restrictions.

   2. “Restricted use” means a use with imposed restrictions, such as a declaration of covenants and restrictions. The imposed restrictions are part of the remedy selected for the site and are stipulated in a site management plan. The imposed restrictions rely on institutional controls or engineering controls to manage remaining exposure to contamination at a site. Restricted uses include:

      A. “Residential use” is the land use category that allows a site to be used for any use other than raising livestock or producing animal products for human consumption. Restrictions on the use of groundwater are allowed, but no other institutional or engineering controls are allowed with respect to the residential use soil cleanup objectives. When considering the applicability of this land use category, the office shall consider the ability to implement the proposed site management plan and its implementation program, including the need for common ownership of the site in order to implement the site management plan.

      B. “Restricted-residential use” is the land use category that shall only be considered when there is common ownership or a single owner/managing entity of the site. When considering the applicability of this land use category, the Office shall consider the ability to implement the proposed site management plan and its implementation program. Restricted-residential use:

         i. shall, at a minimum, include restrictions that prohibit: (a) any vegetable gardens on a site, where such gardens in the restricted-residential soil are feasible and reasonably anticipated; and (b) single family housing.

         ii. includes active recreational uses, which are public uses with a reasonable potential for soil contact.

      C. “Commercial use” is the land use category that shall only be considered for the primary purpose of buying, selling or trading of merchandise or services at street grade or below street grade. Commercial use includes passive recreational uses, which are public uses with limited potential for soil contact.

      D. “Industrial use,” also known as manufacturing use, is the land use category that shall only be considered for the primary purpose of manufacturing, production, fabrication or assembly processes and ancillary services. Industrial use does not include any recreational component.

   3. The Office may approve a remedial program that relies upon no restrictions on use (unrestricted use) or on a range of restrictions on use (restricted uses). The Office may also consider area-wide or city-wide restrictions on use in approval of a remedial program. The following hierarchy represents the range from a less restrictive to a more restrictive land use:

      A. residential;

      B. restricted-residential;

      C. commercial; and

      D. industrial.

   4. The office’s determination of the allowable use of a site as part of a remedial program:

      A. is not a determination by the office relative to a specific future use;

      B. shall be the least restrictive use of the site, as set forth in paragraph three of this subdivision, allowed by such remedial program and permits more restrictive uses to occur on the site (for example, a site cleanup to a commercial use would also be protective of industrial use); and

      C. may disregard the enrollee’s proposed use and approve a remedy upon a use that is consistent with existing zoning laws or maps.

   5. The office shall not approve a proposed remedial program when the proposed use of the site does not conform with applicable zoning laws or maps or the reasonably anticipated future use of the site as determined by the office, unless:

      A. the proposed use is based on a cleanup level that would allow a less restrictive use of the site than would be allowed based upon current zoning laws or maps (for example, the office may approve a cleanup to residential levels for a property which is zoned for commercial use); or

      B. it can be shown to the office’s satisfaction that zoning changes are or will be sought, in which event the office shall conditionally approve the remedy but shall not issue a notice of completion for such use until such use is consistent with existing zoning laws or maps. In this instance, a notice of completion may be issued for a more restrictive use consistent with the zoning, and reissued by the office for the less restrictive use once it is consistent with the zoning.

   6. For purposes of determining the appropriate land use category, the office shall consider the nature of the uses and the activities that are occurring, or may occur, at the site: A. on the ground level and below ground level of any structure. The office may also consider uses above ground level; or

      B. on the surrounding land.

  1. Institutional controls, engineering controls, and restrictive declarations.

   1. Institutional and engineering controls. Institutional and/or engineering controls may be included in a remedial action work plan provided that they are evaluated in the alternatives analysis. A remedy that includes institutional controls and/or engineering controls shall include the following:

      A. a complete description of any use restrictions and/or any other institutional controls, their role in achieving the remedial objectives of the remedy, and the mechanisms that will be used to implement, maintain, monitor, report, and enforce such restrictions and controls;

      B. a complete description of any engineering controls and any site management plan requirements, including the mechanisms that will be used to continually implement, maintain, monitor, report, and enforce such controls and requirements;

      C. an evaluation of the reliability and viability of the long-term implementation, maintenance, monitoring, reporting, and enforcement of any proposed institutional or engineering controls and an analysis of the costs of implementing, maintaining, monitoring, reporting, and enforcing such controls, including costs that may be borne by the state or city;

      D. an analysis sufficient to support a conclusion that effective implementation, maintenance, monitoring, reporting, funding and enforcement of institutional and/or engineering controls can be reasonably expected;

      E. where required by the office, financial assurance, in accordance with 43 RCNY § 43-1410(b), to ensure the long term implementation, maintenance, monitoring, reporting, and enforcement of any such controls; and

      F. any engineering control must be used in conjunction with institutional controls to ensure the continued integrity of such engineering control.

   2. Declaration of covenants and restrictions.

      A. Any site-specific use restrictions, any other institutional controls, any engineering controls and/or any site management requirements applicable to the qualified local brownfield site shall be contained in a declaration of covenants and restrictions, which shall be:

         i. created and recorded, prior to the issuance of the notice of completion, in the recording office for the borough(s) where any portion of the site is located, or in the case of a hazardous materials e-designation, in the official records of the New York city department of buildings; and

         ii. in a form and manner as prescribed by the director.

      B. The office shall notify the department of buildings and other relevant agencies of the declaration of covenants and restrictions.

      C. Agents, employees, or other representatives of the city may enter and inspect the property restricted by a declaration of covenants and restrictions with reasonable prior notice to the property owner, to assure compliance with the restrictions identified by the declaration of covenants and restrictions.

   3. Institutional control/engineering control certification.

      A. The enrollee or owner at a site at which institutional or engineering controls are employed as part of a remedy, shall annually submit, unless an alternate certification period is provided in writing by the office, a written certification:

         i. by a professional engineer for all active remedial systems;

         ii. by a professional engineer or a qualified environmental professional for all mitigation or passive remedial systems; or

         iii. where the only control is an institutional control on the use of the property or a physical barrier or cover, the written certification may be made by the property owner.

      B. The certification shall be included in a report summarizing the site management effort for the certification period, in such form and manner as the office may require, and shall certify that:

         i. the inspection of the site to confirm the effectiveness of the institutional and engineering controls required by the remedial program was performed under the direction of the party making the certification;

         ii. the institutional controls and/or engineering controls employed at such site: (a) are in-place; and (b) are in the office-approved format.

         iii. nothing has occurred that would impair the ability of such controls to protect the public health and environment;

         iv. the enrollee or owner will continue to allow access to such real property to representatives of the office to evaluate the continued maintenance of such controls;

         v. nothing has occurred that would constitute a violation or failure to comply with any site management plan for such controls;

         vi. the report and all attachments were prepared under the direction of, and reviewed by, the party making the certification;

         vii. to the best of his/her knowledge and belief, the work and conclusions described in the certification are in accordance with the requirements of the site remedial program and generally accepted science and engineering practices; and

         viii. the information presented is accurate and complete.

      C. Where contaminants in groundwater at the site boundary contravene drinking water standards, the institutional and engineering control certification shall:

         i. certify that no new information has come to the enrollee’s or owner’s attention, including groundwater monitoring data from wells located at the site boundary, if any, to indicate that the assumptions made in the qualitative exposure assessment of off-site contamination are no longer valid; and

         ii. certify every five years that the assumptions made in the qualitative exposure assessment remain valid.

      D. Only one institutional control/engineering control certification shall be filed per site. If a site is comprised of multiple properties or parcels, the enrollee or owner shall arrange to file one consolidated certification.

      E. In the event that the certification cannot be provided due to a failure of one or more of the institutional or engineering controls, the enrollee or owner shall provide the office:

         i. timely notification explaining the cause for such failure;

         ii. a work plan to implement the corrective measures necessary in order to be able to provide the certification; and

         iii. a schedule for those corrective measures.

      F. In addition to the periodic reporting requirement, the enrollee or owner shall timely notify the office of any failure of one or more of the institutional or engineering controls and shall provide a work plan to remedy any failure of the institutional or engineering control.

      G. The office shall review the work plan referenced in subparagraphs E and F of this paragraph as provided in 43 RCNY § 43-1406(c)(5) and the enrollee or owner shall implement the corrective measures in accordance with the approved work plan. The enrollee or owner shall submit a certification, meeting the requirements of clause ii of subparagraph E of this paragraph upon completion of the corrective measures.

      H. The report provided in subparagraph B of this paragraph shall be placed by the enrollee in the site document repository.

§ 43-1408 Notice of completion.

  1. The office shall issue a notice of completion upon approval of the remedial action report.

   1. Prior to issuance of a notice of completion for a coordinated brownfield site, the office shall obtain a notice from the state or federal agency that the cleanup has been completed.

   2. The date of the approval of the remedial action report by the office shall be the issuance date for the notice of completion.

  1. The office shall issue the notice of completion to the enrollee.
  2. A notice of completion shall include all of the following:

   1. An acknowledgment that the requirements of the remedial program were satisfied or are expected to be satisfied in accordance with the time-frames contained in the approved remedial program;

   2. A description of the site by borough, block and lot, by adequate legal description, by reference to a plate showing the boundaries, or by other means sufficient to identify the site location with particularity;

   3. A prohibition against the use of the site in a manner inconsistent with any land use limitation imposed as a result of the remediation efforts without additional appropriate remedial activities;

   4. A statement as to no further action by the city, pursuant to subdivision e of this section.

   5. A recommendation that no other governmental entity take or require any investigatory or remedial action against the site and the enrollee, his or her successors, and his or her assigns, regarding the contamination addressed at the site.

   6. A description of any engineering and institutional controls or site management activities required by the approved work plan and a notification that failure to manage the controls or complete site management activities in compliance with the terms of the remedial program and the covenants and restrictions for the site, may result in the office requiring additional investigation and/or remediation and the city department of buildings withholding any permits for the site for activities that would interfere with the engineering and institutional controls or the site management plan.

  1. Recording of the notice of completion. Within sixty days of issuance, the notice of completion shall be recorded in a public repository established by the office.
  2. No further action by the city.

   1. Subsequent to the issuance of a notice of completion, subject to the provisions of § 24-906 of the administrative code of the city of New York and except as provided in the City voluntary cleanup agreement, the remedial action work plan, site management plan, declaration of covenants and restrictions, or notice of completion, the city shall not take or require any further investigatory or remedial action against the site and the enrollee, his or her successors, and his or her assigns, regarding matters addressed at the site. If the office seeks to exercise its rights reserved pursuant to § 24-906(b) of the administrative code of the city of New York, it shall provide notice to the holder of the notice of completion, as provided in paragraph two of subdivision f of this section.

   2. “Matters addressed” at the site shall mean all response actions taken by the enrollee to implement the City voluntary cleanup agreement for the site and all response costs incurred and to be incurred by any person or party in connection with the work performed under such agreement, which costs have been paid by the enrollee, including fees for costs incurred by the city pursuant to the City voluntary cleanup agreement.

  1. Modification or revocation of a notice of completion.

   1. The office may modify or revoke a notice of completion upon a finding that:

      A. the enrollee has failed to manage the controls or monitoring in full compliance with the terms of the remedial program pursuant to paragraph six of subdivision c of this section;

      B. the enrollee has failed to comply with the terms and conditions of the City voluntary cleanup agreement executed by the Office;

      C. the enrollee misrepresented a material fact tending to demonstrate that the cleanup levels were reached;

      D. the enrollee violated the terms and conditions of the declaration of covenants and restrictions; or

      E. good cause exists.

   2. If the office seeks to modify or revoke a notice of completion, it shall provide notice to the holder of the notice of completion by certified mail specifying the basis for the office’s proposed action and facts in support of that action.

   3. The holder of the notice of completion shall have thirty days after the effective date of the notice to cure the deficiency and submit proof of cure to the office or to seek a review of the determination of the office.

   4. If the recipient does not submit proof of cure to the office or seek a review of the determination within such thirty day period, the notice of completion shall be modified or revoked on the thirty-first day.

   5. If the office determines that the deficiency has been cured, the proposed modification or revocation shall be withdrawn.

   6. If the office determines that the recipient has not proven that the deficiency has been cured, the office shall provide notice to the recipient by certified mail. The recipient shall have thirty days after the effective date of the notice to seek a review of such determination. If the recipient does not seek a review within such thirty day period, the notice of completion shall be modified or revoked on the thirty-first day.

   7. Review of the office determination.

      A. A review of a determination by the office pursuant to paragraph three or six of this subdivision shall be conducted by the designated individual, or in the director’s discretion, by the office of administrative trials and hearings, solely on the basis of papers submitted by the parties. If the matter is referred to the office of administrative trials and hearings, the reviewing officer shall submit findings of fact and a recommended decision to the designated individual. The designated individual shall render a written decision and furnish a copy thereof to the enrollee. The written decision shall be the final determination of the office, unless the enrollee files a written appeal of that decision with the designated appeal individual within twenty days of receipt of that decision.

      B. Upon receipt of the written appeal pursuant to subparagraph A of this paragraph, the designated appeal individual shall review the record and decision. The designated appeal individual shall take one of the following actions, with written notice to the enrollee:

         i. remand the matter to the office’s project manager for further negotiation or information, if it is determined that the matter is not ripe for review; or

         ii. on the basis of the record as it exists before the designated appeal individual, affirm or reverse the determination of the designated individual.

      C. The designated individual shall be the person designated to review office determinations, and shall be a chief of a bureau of the office.

      D. The designated appeal individual shall be the person designated to review decisions, and shall be the director of the office or such other individual as designated by the director of the office.

   8. For purposes of this subdivision, the effective date of notice shall be two business days after the office mails such notice by certified mail.

  1. Transfer of a notice of completion. A notice of completion may be transferred to successors and assigns of the parties named in the notice.

   1. The office shall be provided:

      A. Advance notice of the transfer of a notice of completion, pursuant to 43 RCNY § 43-1410(d); and

      B. A written notice of transfer, filed within thirty days of the transfer on an office-approved form, in accordance with the filing requirements of the original notice set forth in subdivision d of this section.

   2. Upon filing of the notice of transfer, the notice of completion shall be deemed issued to the successor or assign. Any party to whom a notice of completion is transferred shall be responsible for the operation and maintenance of any required engineering controls and compliance with all required institutional controls, in accordance with the approved site management plan and declaration of covenants and restrictions.

§ 43-1409 Citizen Participation.

  1. To facilitate the remedial process and enable citizens to participate more fully in decisions that affect their health, the office shall require applicants and enrollees to provide opportunities for citizen involvement in the development and implementation of a remedial program and shall encourage applicants and enrollees to consult with the public prior to the office adopting final determinations. The primary goal of the citizen participation program is to facilitate communication between the office and enrollees and the individuals, groups, and organizations that have expressed interest in or are affected by a site, its remedial program, or the decision-making process associated with the remediation of a site.
  2. All remedial programs shall include a citizen participation program that, at a minimum, shall include, the preparation of a citizen participation plan, establishment of a document repository and a site contact list, and public notice with a prescribed public comment period at select milestones.
  3. The design of any citizen participation plan, including the level of citizen involvement and the tools utilized, shall take into account the scope and scale of the proposed remedial program, local interest and history, and other relevant factors. Citizen participation plans shall embody the following principles of meaningful citizen participation:

   1. Opportunities for citizen involvement shall be provided as early as possible in the decision-making process prior to the selection of a preferred course of action by the office and/or the enrollee;

   2. Activities proposed in such plan shall be as reflective as possible of the diversity of interests and perspectives found within the community and shall allow members of the public the opportunity to have their views heard and considered, including, where possible, opportunities for dialogue; and

   3. The office and the enrollee shall provide full, timely, and accessible disclosure and sharing of reports, including technical data and the assumptions upon which any analyses are based.

  1. Upon application to the City voluntary cleanup program, an applicant shall submit a citizen participation plan to the office that shall include at a minimum the following elements:

   1. A site contact list;

   2. The name and address of a document repository and evidence that the repository has agreed to serve as a repository for the remedial project;

   3. Overview of the site’s history and contamination issues;

   4. Identification of major issues of potential concern to the public related to the site and a description of any mitigation planned to address the issues, if appropriate;

   5. A description and schedule of the major elements of the site’s remedial program;

   6. A description and schedule of citizen participation activities conducted or planned relating to the site; and

   7. A description of any additional citizen participation activities needed to address public concerns.

  1. All citizen participation plans shall be subject to office review and approval. The citizen participation plan shall be updated, as required by the office, during the implementation of the remedial program.
  2. Document repository. The enrollee shall establish a document repository at a location accessible to citizens where they can review the remedial program documents.

   1. Documents shall be placed in the repository that are:

      A. set forth in 43 RCNY § 43-1406(d) or 43 RCNY § 43-1407(l)(3); or

      B. otherwise designated by the office for inclusion.

   2. An enrollee shall ensure that the repository contains all appropriate documents and shall inspect the repository at each citizen participation milestone listed in subdivision g of this section to ensure that the repository contains complete and current project information.

   3. The office may allow for a digital document repository to serve as the primary document repository subject to feedback from the community.

  1. Public notice and public comment.

   1. In addition to distributing a notice of application as required by 43 RCNY § 43-1404(f), public notice, in the form of a fact sheet, and public comment activities are required for each site in the City voluntary cleanup program at the following milestones:

      A. Upon the availability of a remedial investigation work plan, if such plan is submitted as part of the application. The applicant shall distribute to the site contact list public notice, in the form of a fact sheet summarizing the contents of the work plan, noting the initiation of a thirty-day public comment period, and identifying the location of the repository where the document can be reviewed. The office shall not approve the remedial investigation work plan until the public comment period has ended.

      B. Upon the availability of a remedial investigation report and remedial action work plan. The enrollee shall distribute to the site contact list public notice, in the form of a fact sheet, summarizing the contents of the remedial investigation report and remedial action work plan, noting the initiation of a thirty-day public comment period for the remedial action work plan, and identifying the location of the repository where the documents can be reviewed. The office shall extend the public comment period to forty-five days upon public request and conduct a public meeting upon public request. The office shall not approve the remedial action work plan until the public comment period has ended.

      C. At the start of remediation. The enrollee shall distribute to the site contact list a public notice announcing the start of remediation.

      D. Upon the issuance of a notice of completion. The enrollee shall distribute to the site contact list a fact sheet announcing the completion of remediation and identifying all institutional and/or engineering controls.

   2. Public notices and fact sheets.

      A. Unless otherwise determined by the office, all notices and fact sheets for the required milestones and any additional notices and fact sheets required by the office shall be prepared by the enrollee and approved by the office prior to issuance.

      B. Office-approved notices and fact sheets shall be distributed by the enrollee to all parties on the site contact list. No other information may be distributed with the notices and fact sheets.

      C. Within five days of distributing such notices and fact sheets, the enrollee shall provide proof of compliance with the notice requirements on a form approved by the office.

      D. All notices, fact sheets, and project documents shall be included in the document repository.

   3. Where the site or adjacent real property contains multiple dwelling units, the enrollee may propose an alternative method, consistent with the citizen participation goals set forth in subdivision a of this section, for providing notice in lieu of mailing to each individual.

  1. Public comment period extensions.

   1. The office shall consider a request to extend a public comment period provided such request is received at least five days prior to the end of the public comment period.

   2. Extensions shall not be greater than thirty days. One automatic extension of fifteen days shall be provided for remedial action work plans upon request.

   3. Additional notice is not required upon granting an extension.

  1. Interim remedial measures. For interim remedial measures, the office shall not require citizen participation activities unless the scope of the interim remedial measure is likely to represent the remedy or a significant portion of the remedy, in which case the office shall require a thirty-day public comment period.

§ 43-1410 Miscellaneous.

  1. Submissions to the office. Applicants and enrollees shall submit all work plans and reports, including all attachments, appendices, and certifications, in an electronic format acceptable to the office. The office may request a printed copy. The office reserves the right to require submission of large figures and drawings on paper.
  2. Financial assurance.

   1. Applicability. The office may require, as a condition of accepting any institutional or engineering controls, that the enrollee post financial assurance to ensure the long term implementation, maintenance, monitoring, reporting, and enforcement of any such controls. In considering whether to require financial assurance, the office shall consider factors including, but not limited to:

      A. whether one or more innovative technologies have been employed at the site;

      B. the length of time to implement the remedial program;

      C. the cost of the remedial program;

      D. the complexity of the remedial program; and

      E. the financial resources available to the enrollee.

   2. Financial assurance required under this subdivision shall be in effect and on file with the office before any notice of completion is issued. Allowable financial assurance mechanisms include:

      A. trust funds;

      B. surety bond guaranteeing payments;

      C. letters of credit;

      D. insurance; or

      E. documentation of a financial capability test, as set forth in of 6 NYCRR § 373-2.8(d)(5).

   3. Preparation of estimated amount of financial assurance. If the office requires posting of financial assurance as a condition of accepting institutional or engineering controls, the enrollee shall provide an estimated amount of financial assurance for the office’s consideration. The enrollee shall be responsible for having a professional engineer or other qualified environmental professional prepare the estimate, and, in the event the financial assurance is being provided through environmental insurance, for having an independent insurance professional provide a certification that such policy meets the requirements of this subdivision. The estimate shall include an itemized listing of each cost and how the cost was calculated, including the cost of contracting with a third party.

   4. Office review of estimated amount of financial assurance. Upon receipt of the financial assurance estimate, the office shall review the estimate and shall assess the basis for the type and extent of impacts used in calculations, and whether the estimated amount is sufficient. The office may accept, modify, or reject the financial assurance estimate.

   5. Submittal of financial assurance. After approval of the financial assurance amount and prior to the office’s issuance of a notice of completion, the enrollee shall submit an originally-signed financial assurance mechanism to the office. The mechanism shall be in effect when submitted. An enrollee may satisfy this requirement by establishing one or more financial assurance mechanisms. If multiple financial assurance mechanisms are used, the enrollee shall specify at least one such mechanism as “primary” coverage and shall specify the other mechanisms as “excess.” An enrollee with obligations for providing financial assurance for multiple sites may combine the required financial assurances for all sites into one or more financial assurance mechanisms.

   6. Adjustment of amount of financial assurance. The office shall review the dollar amount of financial assurance at least once every five years. During the review, the office may adjust the amount for inflation based on the United States consumer price index. In addition, the enrollee may request at any time that the amount of financial assurance be adjusted based on factors occurring since the posting of the existing financial assurance. The enrollee shall describe in writing the basis for the adjustment request.

   7. Release of financial assurance. The office may release the financial assurance or a portion of the financial assurance, and in doing so shall:

      A. notify the enrollee in writing of any release or modification;

      B. modify the financial assurance requirement to reflect the release or modification of the financial assurance required; and

      C. return to the enrollee such released financial assurance, if applicable, with the notice.

   8. Substitution of financial assurance. If the enrollee requests substitution of one type of financial assurance for another, the enrollee shall submit to the office a proposal for alternate financial assurance. The alternate financial assurance must be as secure or more secure than the existing financial assurance as determined by the office. Upon approval and receipt of the alternate financial assurance by the office, the office shall release the existing financial assurance and the office shall notify the enrollee in writing.

  1. Change of use.

   1. A person or entity proposing to make a change of use, except for a transfer of title to a qualified local brownfield site that results in a change in the party implementing a site management plan, shall provide written notification to the office at least sixty days before the proposed change of use.

   2. The notice shall advise the office of the proposed change, including, but not limited to, explaining how such change may affect the site’s proposed, ongoing, or completed remedial program.

   3. Where a change in use arises from a transfer of title to a qualified local brownfield site that results in a new party implementing a site management plan, such notice shall be included in the next annual certification and site management report to the office, pursuant to 43 RCNY § 43-1407(l)(3). The notice shall include:

      A. The name of the new owner and the new owner’s contact information, including a contact representative and the contact information for such representative; and

      B. A certification that the new owner has been provided a copy of the City voluntary cleanup agreement and a copy of all approved remedial work plans and reports.

   4. The office reserves the right to prohibit a change in use for cause.

  1. Effective date of submissions and notices.

   1. Unless otherwise provided, the effective date of submissions and notices required under this subchapter shall be the date of receipt.

   2. The date of receipt of any writing or notice by the office to the enrollee shall be:

      A. If served by hand, the date delivered to the enrollee or its designated repre- sentative.

      B. If mailed, five days after the mailing.

   3. The date of receipt of any submission to the office by the enrollee shall be:

      A. If served by hand, the date delivered to the office at the address provided on the Office’s website.

      B. If mailed, five days after the mailing.

  1. Participation in the City voluntary cleanup program shall not relieve an enrollee of the obligation to obtain any permit required by state or federal law, rule or regulation for any action undertaken by such enrollee in the course of implementing a remedial program.
  2. In accordance with § 27-1303 of the New York state environmental conservation law, the Office shall report suspected inactive hazardous waste sites within the city of New York to the New York state department of environmental conservation.

Subchapter 2: New York City Brownfield Incentive Grant Program

§ 43-1415 Purpose and applicability.

  1. Purpose. The New York city brownfield incentive grant (BIG) program is intended to promote the cleanup and redevelopment of brownfield properties in the city of New York.
  2. Applicability. Brownfield incentive grants are available to provide financial assistance for

   (1) qualified brownfield properties,

   (2) preferred community development projects,

   (3) e-designation/restrictive declaration hazardous materials sites,

   (4) properties in designated coastal flood zones,

   (5) applicants pursuing a brownfield opportunity area grant,

   (6) a green property certification plaque,

   (7) green job training for participants in a job training program, and

   (8) recipients of brownfield opportunity area grants for the performance of pre-development services, assessments and investigations, environmental investigations, property remediation, environmental insurance purchase, and technical assistance services and for the development of work plans and applications.

§ 43-1416 Definitions.

  1. “Affordable housing development” means a development that will be built by a developer on a qualifying brownfield property where at least twenty percent of the housing units are affordable to families that earn no more than eighty percent of the average median income of an area, as determined by the United States department of housing and urban development, and that has been issued a letter of interest from a federal, state, or local housing subsidy program.
  2. “Brownfield opportunity area” means an area in the city of New York with a concentration of brownfields for which the New York state department of state has awarded a brownfield opportunity area grant to a recipient pursuant to general municipal law § 970-r or that has otherwise been identified by the Office as a place-based community brownfield planning area.
  3. “Community based organization” means a community based organization as defined in § 970-r(1)(c) of the general municipal law.
  4. “Community facility development” means a development that will be built by a developer on a qualifying brownfield property where the development provides specific benefits to the local community, including, but not limited to, a community facility use pursuant to the zoning resolution.
  5. “Designated Coastal Flood Zone” means coastal flood zones designated by the Federal Emergency Management Agency (FEMA) or other coastal flood zones designated or recognized by the City.
  6. “E-designation hazardous material site” means a property that has been designated with an (E) on a zoning map, pursuant to § 11-15 of the zoning resolution, because of potential hazardous material contamination.
  7. “Grant administration contractor” means an entity under contract with the New York city economic development corporation, the department of environmental protection or the Office for administration of the New York city brownfield incentive grant program. The grant administration contractor shall provide oversight of the grant process, including, but not limited to, review of grant applications including evaluation of eligibility for grants; review of statements of work; establishment and maintenance of a list of qualified vendors; communication with grantees and qualified vendors; and performance of quality control of work products.
  8. “Grant payment percentage limit” means the seventy-five percent maximum payment by the Office for eligible costs for approved services and activities performed under a pre-development grant or an environmental investigation grant. The grant payment percentage limit is intended to ensure that the grantee bears some of the costs for pre-development and environmental investigation services and activities. The grant payment percentage limit shall not apply to City pre-enrollment grants awarded to City-funded affordable and/or supportive housing sites or to industrial and manufacturing sites supported by the New York City economic development corporation.
  9. “Grantee” means an owner or developer of a qualifying brownfield property, including all parties with an ownership interest in the property, or a recipient of, or an applicant for, a brownfield opportunity area grant in New York city who has been accepted into the New York city brownfield incentive grant program.
  10. “Office” means the office of environmental remediation.
  11. “Person” means an individual, trust, firm, joint stock company, limited liability company, corporation, joint venture, partnership, association, a local development corporation, or a community development corporation.
  12. “Preferred community development project” means a development proposed for a qualifying brownfield property that is:

   (1) an affordable housing development;

   (2) consistent with the strategic brownfield goals established in a brownfield opportunity area plan pursuant to § 970-r of the general municipal law, as evidenced by a letter from the recipient of a brownfield opportunity area grant pursuant to 43 RCNY § 43-1418(d)(4)(B)(i);

   (3) consistent with the strategic brownfield goals established by a place-based community brownfield planning organization recognized by the Office and as evidenced by a letter from the place-based community brownfield planning organization pursuant to 43 RCNY § 43-1418(d)(4)(B)(ii); or

   (4) a community facility development.

  1. “Qualified vendor” or “vendor” means:

   (1) an environmental professional or consultant or firm thereof;

   (2) an architect, engineer, attorney, or other professional or firm thereof;

   (3) a community based organization preparing an application for a brownfield opportunity grant from the New York state department of state;

   (4) a community development corporation, local development corporation, community development financial institution, or another similar entity, that is qualified by the grant administration contractor to perform, subcontract, and/or supervise work eligible for reimbursement under the New York city brownfield incentive grant program;

   (5) a workforce development organization; or

   (6) a vendor under contract with the New York city economic development corporation, the department of environmental protection or the Office for eligible activities and services pursuant to 43 RCNY § 43-1419.

  1. “Qualifying brownfield property” means:

   (1) for a pre-enrollment grant, a property that contains a recognized environmental condition;

   (2) for an enrollment grant, a track one bonus cleanup grant, a green property certification grant, and a property admitted to the City voluntary cleanup program;

   (3) for a climate change resilience bonus cleanup grant, a property admitted to the City voluntary cleanup program that is located in a designated coastal flood zone;

   (4) for an e-designation hazardous material remediation grant or a restrictive declaration hazardous material remediation grant, an e-designation hazardous material site or a restrictive declaration hazardous material site respectively;

   (5) for a technical assistance grant, a preferred community development project where the developer is a not-for-profit corporation, or a community based organization that seeks to apply for a brownfield opportunity grant from the New York state department of state or perform brownfield planning analyses for place-based community brownfield planning;

   (6) for a brownfield opportunity area strategic property bonus cleanup grant, a property that has been designated a strategic brownfield property within the New York state brownfield opportunity area program;

   (7) for a brownfield green job training grant, a property admitted to the City voluntary cleanup program or an environmental project recognized by the Office;

   (8) for a City pre-enrollment grant, a property to be used for affordable housing and/or supportive housing funded by the New York city department of housing preservation and development, an industrial or manufacturing development supported by the New York city economic development corporation or other project receiving substantial support from the City, or an environmental tax lien site designated by the New York city office of management and budget; and

   (9) for a City enrollment grant, a property that is enrolled in the City voluntary cleanup program or the New York State brownfield cleanup program.

  1. “Restrictive declaration hazardous material site” means a property with an institutional control, arising from a City environmental quality review and recorded by the property owner, which requires a potential hazardous material condition to be addressed to the office’s satisfaction before the property can be developed or an action involving soil disturbance can be undertaken.
  2. “Recognized environmental condition” means the presence or likely presence of any hazardous substances on a property under conditions that indicate an existing release, a past release, or a material threat of a release of any hazardous substances into structures on the property or into the ground, ground water, or surface water of the property. The term includes hazardous substances even under conditions in compliance with laws. The term does not include de minimis conditions that generally do not present material risk of harm to public health or the environment.
  3. “Strategic brownfield property” means a property within a brownfield opportunity area or place-based brownfield community planning area that has been determined by the community brownfield planning organization to be a strategic site within the brownfield opportunity area program or the place-based brownfield community planning area.

§ 43-1417 Types of grants.

  1. Pre-enrollment grants are awarded for services and activities performed at qualifying brownfield properties that are not yet enrolled in the City voluntary cleanup program.

   1. Pre-development grants finance the services and activities that usually precede environmental field investigation and advance brownfield projects at an early stage of the project. Pre-development grants may be used for eligible services and/or activities, as provided in 43 RCNY § 43-1419.

   2. Environmental investigation grants finance the characterization of a property’s subsurface contamination. Environmental investigation services and activities are typically performed after pre-development work and prior to environmental remediation on a brownfield property. Environmental investigation grants may be used for eligible services and/or activities, as provided in 43 RCNY § 43-1419.

   3. City pre-enrollment grants finance eligible pre-enrollment activities and services at publicly-owned sites, at affordable and/or supportive housing sites funded by the New York city department of housing preservation and development, at industrial or manufacturing development sites supported by the New York city economic development corporation or other project receiving substantial support from the City, and at environmental tax lien sites designated by the New York city office of management and budget.

  1. Enrollment cleanup grants are grants awarded for activities performed at qualifying brownfield properties that are enrolled in the City voluntary cleanup program.

   1. Cleanup grants pay for costs incurred in a property’s remediation. They may be used for eligible services and/or activities, as provided in 43 RCNY § 43-1419, that are included in, and performed according to the terms of, a remedial action work plan approved by the Office.

   2. Brownfield opportunity area strategic property bonus cleanup grants are a type of cleanup grant that is awarded to pay for eligible cleanup services and/or activities at strategic brownfield properties.

   3. Track one bonus cleanup grants are a type of cleanup grant that provides funding for track one cleanups, as set forth in 43 RCNY § 43-1407(h)(1) of this chapter.

   4. Climate change resilience bonus cleanup grants provide funding to accelerate designated coastal flood zone cleanup and are intended to enhance public and environmental protection.

   5. Brownfield green job training grants provide funding for job training program participants to acquire work experience at sites enrolled in the City voluntary cleanup program or on environmental projects recognized by the Office.

   6. Green property certification grants pay for a New York city green property certification plaque. To be eligible for a green property certification grant, parties must receive a notice of completion from the Office or a certificate of completion of the New York state department of environmental conservation.

   7. City enrollment grants fund eligible cleanup activities at publicly-owned sites, at affordable and/or supportive housing sites funded by the New York city department of housing preservation and development, at industrial or manufacturing development sites supported by the New York city economic development corporation or other projects receiving substantial support from the City, and at environmental tax lien sites designated by the New York city office of management and budget. They may be used for eligible services and/or activities, as provided in 43 RCNY § 43-1419, that are included in, and performed according to the terms of, a remedial action work plan approved by the office or by the New York state department of environmental conservation.

  1. Other Grants.

   1. Technical assistance grants are awarded to a developer of a preferred community development project where such developer is a not-for-profit corporation, to a community based organization that seeks to apply for a department of state brownfield opportunity area grant, or to a community brownfield planning organization facilitating community brownfield planning activities and services in a place-based community brownfield planning area. The grant covers a range of technical services performed by a qualified vendor for project pre-development, management and technical assistance, as provided in 43 RCNY § 43-1419.

   2. Brownfield opportunity area local match grants are awarded to a recipient of a New York state department of state brownfield opportunity area grant or to a community brownfield planning organization identified by the Office that is facilitating brownfield planning activities and services for a place-based community brownfield planning area. For recipients of a New York state brownfield opportunity area grant, this grant assists grantees that meet the local match requirement for a state brownfield opportunity area grant pursuant to general municipal law § 970-r.

   3. E-designation hazardous material remediation grants and restrictive declaration hazardous material remediation grants provide funding for hazardous material cleanup at e-designation hazardous material sites and restrictive declaration hazardous material sites that are not enrolled in the City voluntary cleanup program, that have an approved remedial action plan, and that have received a notice of satisfaction from the office for remediation of hazardous material.

§ 43-1418 Eligibility.

  1. General.

   1. Grants are awarded within each fiscal year to grantees. Awards shall be made until brownfield incentive grant funds for a fiscal year are exhausted.

   2. Decisions on eligibility for all grants are made by the office and are final.

  1. Property eligibility.

   1. A property shall be located within the city of New York. However, projects that are not supported by the New York city department of housing preservation and development, or the New York city housing development corporation for affordable and /or supportive housing, or are not supported by the New York city economic development corporation for industrial or manufacturing, or are not substantially supported by the City for other projects in Manhattan at or south of 96th Street or projects larger than 100,000 square feet that are not preferred community development projects are ineligible for pre-enrollment and enrollment grants, except for brownfield green job training grants and green property certification grants. Contiguous properties enrolled by the same developer are eligible for only one grant award.

   2. A property shall meet the definition of a qualifying brownfield property for the type of grant(s) sought.

   3. A property admitted to the brownfield cleanup program administered by the New York state department of environmental conservation is ineligible for a grant except for a City pre-enrollment grant as defined in 43 RCNY § 43-1417(b)(3), a City enrollment grant as defined in 43 RCNY § 43-1417(b)(7), a brownfield green job training grant as defined in 43 RCNY § 43-1417(b)(5), and a green property certification grant, as defined in 43 RCNY § 43-1417(b)(6).

  1. Applicant eligibility.

   1. An applicant is ineligible for a grant if the person is subject to any pending action or proceeding or order identified in 43 RCNY § 43-1403(b) of this chapter relating to the property.

   2. An applicant who has received a prior pre-enrollment grant or a technical assistance grant and did not submit information on the outcome of the brownfield project as required by 43 RCNY § 43-1421(b)(5) is not eligible for any additional pre-enrollment brownfield incentive grant until such information is submitted.

   3. An applicant who has received a prior pre-enrollment grant or a technical assistance grant for a property that required remedial action and was subsequently developed and that was not enrolled in a New York city or New York state remedial program is not eligible for additional pre-enrollment grants. However, at the discretion of the office, the applicant may still be eligible for an additional enrollment grant.

   4. A grantee may receive grants for a maximum of three qualifying brownfield properties for any given City fiscal year. However, contiguous properties remediated by the same developer may not receive more than one grant. For the purpose of this subdivision, all grants issued for a single property are considered one grant that is received in the year of the initial award payment. For example, a grantee that receives the first payment on an invoice submitted for a pre-development grant award for a property in one fiscal year and an environmental investigation grant for the same property the next fiscal year is considered to have received only one grant issued in the first fiscal year.

   5. A grantee may not receive a pre-enrollment grant for more than one qualifying brownfield property each fiscal year. However, if a qualifying brownfield property for which a pre-enrollment grant was obtained is subsequently enrolled by the grantee into a New York city or New York state brownfield cleanup program in the same fiscal year, the grantee may receive an additional pre-enrollment grant for a second qualifying brownfield property in the same fiscal year. If a grantee enrolls a second qualifying brownfield property (for which a pre-enrollment grant was obtained) in a New York city or New York state brownfield cleanup program in the same fiscal year, the grantee may receive an additional pre-enrollment grant for a third qualifying property. Pursuant to paragraph 4 of this subdivision, the grantee shall not receive a pre-enrollment grant for more than the three qualifying brownfield properties in such fiscal year.

  1. Eligibility requirements for specific grants.

   1. Pre-enrollment grants.

      A. Pre-development grants. For a qualifying brownfield property to be eligible for a pre-development grant, the applicant shall provide the office with evidence indicating that the property contains a recognized environmental condition that has not been remediated. Such evidence may include, but is not limited to, records of past use, records derived from fire insurance maps, information from direct observation and testing, or findings from studies performed by the office or by other means acceptable to the office.

      B. City pre-enrollment grants. To be eligible for a City pre-enrollment grant, a property must be an affordable and/or supportive housing site funded by the New York city department of housing preservation and development or the housing development corporation, an industrial or manufacturing development site supported by the New York city economic development corporation, other projects receiving substantial support from the City, an environmental tax lien site identified by the New York city office of management and budget or be public property in New York city whose investigation and/or remedial planning is managed by the Office.

      C. Environmental investigation grants.

         i. Submission of a satisfactory phase one investigation shall be required for a qualifying brownfield property to be eligible for an environmental investigation grant, except as provided in clause iii of this subparagraph. A phase one investigation is a search of records and government databases to determine whether prior land uses or processes were likely to have left behind contamination at a property. Phase one investigations shall be reviewed by the office and/or the grant administration contractor. Upon request of the applicant, the grant administration contractor alone, and not the office, shall review phase one investigations.

         ii. To be eligible for an environmental investigation grant, a phase one investigation shall indicate that the property contains a recognized environmental condition.

         iii. In lieu of a phase one investigation, recognized environmental conditions may be identified in studies performed by the office, or by other means acceptable to the office.

   2. Enrollment grants. Enrollment in the City voluntary cleanup program is required for a property to be eligible for an enrollment grant except for a City enrollment grant as defined in 43 RCNY § 43-1417(b)(7), a green property certification grant as defined in 43 RCNY § 43-1417(b)(6), and a green job training grant as defined in 43 RCNY § 43-1417(b)(5) which may also allow enrollment in the New York state brownfield cleanup program.

      A. Cleanup grants.

         i. To be eligible for a cleanup grant, a qualifying brownfield property shall have an Office-approved remedial action work plan under the City voluntary cleanup program except for properties that are eligible for City enrollment grants which may have a remedial action work plan approved by the New York state department of environmental conservation.

         ii. Cleanup services and/or activities that are eligible for awards under this grant are listed in schedule B.

         iii. Cleanup services and/or activities that are eligible for awards under this grant shall be performed in accordance with an Office-approved or a New York state department of environmental conservation-approved remedial action work plan under the State brownfield cleanup program. If any cleanup services are performed in a manner that is not in accordance with an Office-approved or a New York state department of environmental conservation-approved remedial action work plan, all cleanup services and/or activities will be ineligible for any further awards under this grant.

         iv. To be eligible for a climate change resilience bonus cleanup grant, a qualifying brownfield property must be located in a designated coastal flood zone and be enrolled in the City voluntary cleanup program.

         v. To be eligible for a brownfield green job training grant, an applicant must employ a participant in a City, state, or federally supported non-profit work force development program for work participating in construction activities at a remedial action site regulated by the Office or the New York state department of environmental conservation or an environmental project recognized by the Office. Reimbursement is subject to the award limit set forth in 43 RCNY § 43-1422(c)(9)).

         vi. To be eligible for a green property certification grant, a party must have received a notice of completion from the Office or a certificate of completion from the New York state department of environmental conservation in accordance with 6 NYCRR § 375-3.9.

      B. Brownfield opportunity area strategic property bonus cleanup grants. To be eligible for a brownfield opportunity area strategic property bonus cleanup grant, a qualifying brownfield property shall be eligible for a cleanup grant and shall be designated a strategic brownfield property by the BOA grantee in the New York state brownfield opportunity area program or a place-based community brownfield planning area identified by the Office.

      C. Track-one bonus cleanup grants. To be eligible for a track-one bonus cleanup grant, a qualifying brownfield property shall be eligible for a cleanup grant and satisfy the requirements for an unrestricted use cleanup for soil pursuant to Table 375-6.8 of 6 NYCRR § 375-6.8.

      D. Climate change resilience bonus cleanup grants. To be eligible for a climate change resilience bonus cleanup grant, a qualifying brownfield property shall be located in a designated coastal flood zone and enrolled in the City voluntary cleanup program.

      E. Brownfield green job training grants. To be eligible for a brownfield green job training grant, an applicant must employ participant(s) in a City, state, or federally supported nonprofit work force development program for work participating in construction activities at a remedial action site regulated by the Office or the New York state department of environmental conservation or an environmental project recognized by the Office.

      F. E-designation hazardous material sites and restrictive declaration hazardous material sites are eligible for enrollment grants if the applicant enrolls in the city voluntary cleanup program, except E-designation sites and restrictive declaration sites that are enrolled in the New York state brownfield cleanup program are eligible for a City enrollment grant.

      G. To be eligible for a City enrollment grant, a qualifying brownfield property shall have an Office-approved remedial action work plan and be enrolled in the City voluntary cleanup program or have a New York state department of environmental conservation-approved remedial action work plan and be enrolled in the state brownfield cleanup program.

   3. Other Grants.

      A. Technical Assistance Grants.

         i. To be eligible for a technical assistance grant for a qualifying brownfield property that is a preferred community development project where a developer is a not-for-profit corporation, the applicant shall provide the Office with evidence that such developer is a not-for-profit corporation or qualifies for a real property tax exemption afforded by real property tax law § 420-c and evidence required by paragraph four of this subdivision.

         ii. Community based organizations that seek to apply for a brownfield opportunity grant are eligible for a technical assistance grant for the purpose of development of the brownfield opportunity area grant application. Community brownfield planning organizations that conduct place-based community brownfield planning in a geographic area with vacant or underutilized land identified by the Office are eligible for a place-based community brownfield technical assistance grant.

      B. Brownfield opportunity area local match grants. For the recipient of a brownfield opportunity area grant to be eligible for a brownfield opportunity area local match grant, the applicant shall be a community based organization, have entered into a brownfield opportunity area contract with and have a work plan approved by the New York state department of state, and have submitted an invoice to the grant administration contractor for activities pursuant to such work plan. For a place-based community brownfield planning area to be eligible for a brownfield opportunity area local match grant, the applicant shall be a community based organization, have a place-based community planning area identified by the Office, and have an agreement with the Office.

      C. E-designation hazardous material remediation grants and restrictive declaration hazardous material remediation grants. To be eligible for an e-designation hazardous material remediation grant or a restrictive declaration hazardous material remediation grant respectively, a qualifying brownfield property shall have been remediated pursuant to an Office-approved remedial action plan for an e-designation hazardous material site or a restrictive declaration hazardous material site and have received a notice of satisfaction from the Office.

   4. Preferred community development projects.

      A. For a qualifying brownfield property to be eligible for a grant as a preferred community development project based on a proposed development of an affordable housing development, the applicant shall provide the office:

         i. evidence that at least twenty percent of the housing units are affordable to families that earn no more than eighty percent of the average median income of the area;

         ii. a proposal for redevelopment of the property; and

         iii. a letter of interest from a federal, state or local housing subsidy program.

      B. Projects consistent with strategic brownfield goals.

         i. For a qualifying brownfield property to be eligible for a grant as a preferred community development project based on a proposed development that is consistent with the strategic brownfield goals established in a brownfield opportunity area plan, the applicant shall provide the Office with a signed letter of support for the proposed development from the recipient of a brownfield opportunity area grant that has an executed brownfield opportunity area contract with the New York state department of state pursuant to § 970-r of the general municipal law. The letter shall state that the brownfield property is located within the identified brownfield opportunity area and that its proposed redevelopment is consistent with plans established for the brownfield opportunity area by such recipient of a brownfield opportunity area grant.

         ii. For a qualifying brownfield property to be eligible for a grant as a preferred community development project based on a proposed development that is consistent with the strategic brownfield goals established by a place-based community brownfield planning organization, the applicant shall provide the Office with a signed letter of support for the proposed development from the place-based community brownfield planning organization that is a recipient of a brownfield opportunity area local match grant or a technical assistance grant. The letter shall state that the brownfield property is located within the area identified by the Office or identified by the BOA recipient, and that the proposed redevelopment is consistent with plans for the place-based community brownfield planning area by the recipient of the brownfield opportunity area local match grant or the technical assistance grant.

      C. For a qualifying brownfield property to be eligible for a grant as a preferred community development project based on a proposed development that is a community facility development, the applicant shall provide the office:

         i. a proposal for redevelopment of the property; and

         ii. evidence of the specific benefits the facility provides the community.

§ 43-1419 Eligible Services and Activities.

  1. Eligible services and/or activities within each grant type for which grant awards may be issued are listed in Schedule B.

   1. For pre-development grants, eligible services and/or activities shall include, but shall not be limited to, title insurance, title search, project feasibility study (i.e. market analysis, concept plans, pro forma financial analysis, zoning analysis, and permitting), community outreach, and phase one investigations.

   2. For environmental investigation grants, eligible services and/or activities shall include, but shall not be limited to, development of a phase two/site characterization workplan; development of a remedial investigation workplan; study of soil, groundwater, and soil vapor; laboratory analysis of soil, groundwater, and soil vapor samples; and development of phase two/site characterization reports.

   3. For City pre-enrollment grants, eligible services and/or activities include, but are not limited to, development of a phase two/site characterization work plan; development of a remedial investigation workplan; study of soil, groundwater, and soil vapor; laboratory analysis of soil, groundwater and soil vapor; development of phase two/site characterization reports; property appraisal; and development of an approved remedial action work plan or remedial action plan.

   4. For cleanup grants, track-one bonus cleanup grants, brownfield opportunity area strategic property bonus cleanup grants, City enrollment grants, e-designation hazardous material remediation grants, climate change resilience bonus cleanup grants, and E-designation/restrictive declaration hazardous material remediation grants, eligible services and/or activities shall include, but shall not be limited to, activities required to develop or implement tasks required by a government-approved remedial action work plan, including development of an approved remedial action work plan or remedial action plan; soil removal and disposal; tank removal and other removal actions; backfill; engineering controls (i.e., cap emplacement; cover system; vapor barrier system; sub slab depressurization system); institutional controls; documentation preparation; development of remedial action reports and the purchase of environmental insurance including cleanup cost cap insurance; and site management plans.

   5. For brownfield green job training grants, eligible services and/or activities shall include any hourly work participating in construction activities at a remedial action site regulated by the Office, the New York state department of environmental conservation or an environmental project recognized by the Office by trainees, pre-approved by the Office, from a City, state, or federally supported nonprofit work force development program. Eligible services and/or activities shall also include any hourly work performed by such trainees in support of the Office’s programs.

   6. For green property certification grants, eligible services include the purchase of a New York City green property certification plaque.

   7. For technical assistance grants for preferred community development projects and for community brownfield planning organizations conducting community brownfield planning in a geographic area identified by the Office, eligible services shall include consulting or other services for activities including, but not limited to:

      A. assistance in the planning and execution of a brownfield project, including assessment of the viability of a brownfield project;

      B. development and/or review of technical and legal documents required by the brownfield incentive grant program or the City voluntary cleanup program, including:

         i. applications

         ii. agreements

         iii. insurance policies

         iv. statements of work

         v. scopes of work

         vi. work plans

         vii. reports;

      C. development and/or review of design reports;

      D. preparation of a budget;

      E. development of a pro forma financial analysis;

      F. development of a site re-use plan;

      G. project planning; and

      H. review of brownfield project sequencing and scheduling.

For technical assistance grants for community based organizations seeking to apply to the New York state department of state for a brownfield opportunity area grant, eligible services shall include consulting services for the development of such an application.

   8. For brownfield opportunity area local match grants, eligible services and/or activities shall include those that are covered by a work plan approved by the New York state department of state associated with a contract executed with the New York state department of state. For community brownfield planning organizations conducting place-based community brownfield planning, eligible services for brownfield opportunity area local match grants include, but are not limited to, existing conditions and land vacancy studies, a community reuse plan, zoning analyses, Phase I environmental studies, and pro-forma financial analyses.

  1. Except as provided in subdivision c of this section, the office shall require a statement of work before eligible services and/or activities may be funded using grant funds.

   1. The statement of work may be submitted with or after the grant application.

   2. The statement of work shall be submitted on a form and in a manner to be established by the office.

   3. The grant administration contractor shall review the statement of work to ensure that the proposed services and/or activities comply with schedule B.

   4. Eligibility for awards is contingent upon submission of an acceptable statement of work.

  1. The Office shall require a remedial action work plan or remedial action plan, respectively, before eligible services and/or activities may be performed using the following grant funds:

   1. For cleanup grants, track one bonus grants, and brownfield opportunity area strategic property bonus cleanup grants, the eligible services and/or activities shall be described in a remedial action work plan approved by the Office as part of the City voluntary cleanup program.

   2. For City enrollment grants, the eligible services and/or activities shall be described in a remedial action work plan approved by the Office as part of the City voluntary cleanup program or by the New York state department of environmental conservation as part of the state brownfield cleanup program.

   3. For e-designation hazardous material remediation grants and restrictive declaration hazardous remediation cleanup grants, the eligible services and/or activities shall be described in a remedial action plan approved by the office as part of the e-designation hazardous material and restrictive declaration hazardous material management programs respectively.

   4. Eligibility for awards is contingent upon approval of a remedial action work plan or remedial action plan.

  1. The grant administration contractor shall establish a list of qualified vendors for performance of eligible services and/or activities.

§ 43-1420 Applications.

  1. Applications are required for all brownfield incentive grants.
  2. Consistent with the provisions of this subchapter, applicants may submit a single application to request grant funding for eligible services and/or activities for one qualifying brownfield property for different grants at different stages of remediation of the property, or for the same grant at different stages of remediation of the property.
  3. An applicant or a grantee may apply for another grant for the same qualifying brownfield property by submitting a modification to the original application with an additional statement of work.
  4. Applications shall be submitted to the office in such form and manner and containing such information as the office may require.
  5. All applications shall include:

   1. the identity of all applicants. Where a limited liability company owns a brownfield project, all parties with a twenty-five percent ownership interest in the limited liability company shall be individually identified in the application.

   2. the street address of the property;

   3. the location of the property, by borough, block and lot;

   4. the zoning designation of the property;

   5. a description of the development plan for the property;

   6. the grant type(s) applied for; and

   7. any other information requested by the office.

  1. If activities to be reimbursed under a grant require that the grantee and its vendors and/or contractors have access to the qualifying brownfield property, the applicant shall provide certification of property ownership, a property access agreement, or certification that work will be done in accordance with an executed property access agreement.
  2. If the applicant or grantee identified in an application for a brownfield incentive grant changes, a new application or modification to the existing application identifying the new applicant or grantee shall be submitted to the grant administration contractor.
  3. To be eligible for a brownfield incentive grant available to qualifying brownfield properties in the City voluntary cleanup program, the E-designation program, the restrictive declaration program or the state brownfield program, an applicant must submit a complete brownfield incentive grant application with invoices and manifests, if applicable, within six months of receipt of a notice of completion or a notice of satisfaction from the Office or a certificate of completion from the State department of environmental conservation.

§ 43-1421 Agreements.

  1. Brownfield incentive grants require an executed agreement between the grantee and the grant administration contractor prior to the disbursement of funds.
  2. Brownfield incentive grant agreements shall include:

   1. A grantee shall indemnify both the city of New York and the grant administration contractor for all services and activities to be performed in relation to the grant, including, but not limited to, all services and activities that will be reimbursed with grant funds.

   2. A grantee must require its qualified vendors to indemnify both the city of New York and the grant administration contractor for all services and activities to be performed in relation to the grant, including, but not limited to, all services and activities that will be reimbursed with grant funds.

   3. All eligible services and/or activities must be performed by a qualified vendor, except in the following circumstances:

      A. A grantee may directly hire a contractor, other than a qualified vendor, to perform remedial work under an approved remedial action work plan, provided that the grantee requires the contractor to maintain insurance that is adequate for the nature and scope of the services and activities performed, as determined by the office. The insurance must name the city of New York, the New York city economic development corporation, and the grant administrator contractor as additional insureds.

      B. In select cases or categories, the office may waive the requirement that eligible services and/or activities be performed by a qualified vendor. In deciding whether to waive this requirement, the office will consider at a minimum:

         i. The degree of risk in the work performed, including the risk of injury to persons or damage to property or the risk of other claims, damages or losses;

         ii. Whether the work performed is adequately covered by insurance; and

         iii. Whether the office is assured that the work performed will be of sufficient quality.

   4. A grantee shall accept all terms of the grant including, but not limited to, administration of grants by the grant administration contractor.

   5. Project information required by the office. A grantee shall provide basic information required for each grant in a manner and form developed by the office for this purpose. Information required by the office may include:

      A. a schedule for work;

      B. details of the planned development;

      C. an estimate of the number of jobs to be created by the planned development;

      D. estimated costs of the planned development;

      E. basic development information, including, but not limited to, the square footage of residential, commercial, industrial, and open space to be created; and

      F. the number of residential affordable housing units to be created.

   6. A grantee shall agree to office requirements for future reporting on projects related to each grant. Such reporting shall be submitted on forms developed by the office for this purpose and may include details of the outcome of each project after grant activities are completed, including, but not limited to:

      A. whether the proposed development was constructed;

      B. whether a government remediation program was utilized for the cleanup; and

      C. an update of information contained in paragraph 4 of this subdivision.

§ 43-1422 Grant Awards and Award Limits.

  1. Brownfield incentive grants shall be paid to the grantee or the qualified vendor who performed the work upon receipt of invoices for eligible activities and/or services listed in schedule B, provided that brownfield opportunity area local match grants shall be paid to the grantee upon receipt of a copy of a work plan approved by the New York state department of state and a copy of a contract executed with the New York state department of state. Brownfield opportunity area local match grants shall be paid to a community based organization in a place-based community brownfield planning area identified by the Office upon receipt of an executed agreement with the Office identifying the work to be performed.
  2. A grantee may be awarded brownfield incentive grants from one or more of the grant types for the same qualifying brownfield property. Total grant amounts awarded to the grantee may not exceed the award limits identified in subdivision c of this section.
  3. Award limits.

   1. Generally. Grants may be awarded for a qualifying brownfield property totaling up to the amount listed in schedule A. Activities and services in connection with pre-enrollment and enrollment grants can be performed by a qualified vendor under contract with the New York City economic development corporation, the New York City department of environmental protection or the Office.

   2. Preferred community development projects. A grantee for a preferred community development project may be awarded: (1) a pre-enrollment grant of up to $25,000, (2) a technical assistance grant of up to $5,000, and (3) once the project is enrolled in the City voluntary cleanup program, an enrollment grant of up to $35,000, including the sum of the pre-enrollment grant and excluding the sum of the technical assistance grant. A not-for-profit developer of a preferred community development project or a developer of a residential building where 100% of the units are affordable is eligible for an enrollment grant of $50,000. The amount of the enrollment grant includes the sum of the pre-enrollment grant and excludes the sum of the technical assistance grant.

   3. Brownfield opportunity area local match grant. A grantee of a brownfield opportunity area local match grant may receive a grant of up to $25,000 or ten percent of the brownfield opportunity area grant award from the New York state department of state, for step one of the brownfield opportunity area program, whichever is less, and $25,000 or ten percent of the brownfield opportunity area grant award from the New York state department of state for step two of the brownfield opportunity area program, whichever is less. A grantee of a brownfield opportunity area local match grant that is a community based organization in a place-based community brownfield planning area may receive a grant of up to $25,000. Activities and services on behalf of a community based organization that conducts place-based community brownfield planning through a brownfield opportunity area local match grant can be performed by a qualified vendor under contract with the New York City economic development corporation, the New York City department of environmental protection or the Office.

   4. Community based organization applicant for a brownfield opportunity area grant. A community based organization that seeks to apply for a brownfield opportunity grant may receive a technical assistance grant of up to $10,000 for eligible consulting services. Community based organizations that conduct place-based community brownfield planning in areas identified by the Office may also receive a technical assistance grant of $10,000. Activities and services on behalf of a community based organization that conducts place-based community brownfield planning through a technical assistance grant can be performed by a qualified vendor under contract with the New York City economic development corporation, the New York City department of environmental protection or the Office.

   5. Brownfield opportunity area strategic property bonus cleanup grant. A grantee of a brownfield opportunity area strategic property bonus cleanup grant may receive a grant of up to $10,000 for cleanup services and activities. This grant award may be in addition to pre-enrollment and other enrollment grants received under this program.

   6. Track-one bonus cleanup grants. A grantee who achieves a track-one cleanup may receive a grant award of up to $10,000. This grant award shall be in addition to pre-enrollment and other enrollment grants received under this program.

   7. E-designation hazardous material sites and restrictive declaration hazardous material sites remediation. The award limits for e-designation hazardous material sites and restrictive declaration hazardous material sites shall be as follows:

      A. A grantee of an e-designation hazardous material remediation grant or restrictive declaration hazardous material remediation grant may receive a grant of up to $2,500 for cleanup services and activities. If the property subsequently enrolls in the City voluntary cleanup program and is awarded an enrollment grant, then the enrollment grant shall be reduced by the amount of the e-designation hazardous material remediation grant or restrictive declaration hazardous material remediation grant respectively.

      B. A grantee for an e-designation hazardous material site or a restrictive declaration hazardous material site that has been admitted into the City voluntary cleanup program may be awarded an enrollment grant of up to $25,000.

      C. A grantee for an e-designation hazardous material site or a restrictive declaration hazardous material site that has been admitted into the City voluntary cleanup program and is a preferred community development project may be awarded an enrollment grant of up to $35,000.

   8. Climate change resilience bonus cleanup grants. An applicant for a climate change resilience bonus cleanup grant may receive a grant award of up to $10,000. This grant award shall be in addition to a pre-enrollment and enrollment grants received under this program.

   9. Brownfield green job training grants. An applicant for a brownfield green job training grant may receive a grant award of up to $6,000. This grant award shall be in addition to pre-enrollment and enrollment grants received under this program.

   10. Green property certification grants. An applicant for a green property certification grant is eligible for a grant of up to $1,000 to cover the cost of one New York city green property certification plaque for each eligible site pursuant to 43 RCNY § 43-1428.

   11. City pre-enrollment grants. City pre-enrollment grants are funded to a maximum of $125,000 for pre-enrollment activities and services. The Office may award a grant higher than this amount where it determines that a City-supported affordable or supportive housing development or an industrial project supported by the New York City Economic Development Corporation incurs more than $125,000 in investigation costs to enroll in the State brownfield program or obtain DEC’s approval of its remedial action work plan. If such a project is denied entry into the State brownfield program and enrolls instead in the City voluntary program, it will be reimbursed for the cost of conducting a site investigation. Activities and services for a City pre-enrollment grant can be performed by a qualified vendor under contract with the New York city economic development corporation, the New York city department of environmental protection or the Office.

   12. City enrollment grants are funded to a maximum of $250,000 for eligible services and activities including any City pre-enrollment grants. If a City-supported affordable housing or industrial project is enrolled in the City voluntary cleanup program, the project is eligible for a cleanup grant of $50,000. Activities and services for a City enrollment grant can be performed by a qualified vendor under contract with the New York city economic development corporation, the department of environmental protection, or the Office.

§ 43-1423 Grant Disbursements and Administration.

  1. Administration of grants. The grant administration contractor shall review all invoices and all other documents provided by the applicant pursuant to this subchapter prior to awarding grant funds, in order to ensure that services and/or activities comply with this subchapter.
  2. Disbursement of grants.

   1. Grants are payable to the grantee or the qualified vendor, except that a green property certification grant is payable to the vendor who produced the certification plaque and a green job training grant may be paid to a workforce development organization or to a contractor associated with a project at a remedial site or to a party on an environmental project recognized by the Office that employs a participant from a workforce development organization for full-time work. A community based organization conducting place-based community brownfield planning can receive the technical assistance grant or the BOA local match grant on a lump sum basis if the organization has an executed agreement with the Office.

   2. Grants are distributed on a first-come, first-served basis and based on available appropriations.

   3. Enrollment grants may be reimbursed in the year following the award year if funds are no longer available in the award year and are available in the subsequent year.

   4. Pre-development and environmental investigation grants are awarded subject to the grant award limits pursuant to 43 RCNY § 43-1422 and subject to the grant payment percentage limit applied to eligible costs for approved services and activities in schedule B. A preferred community development project where the developer is a not-for-profit corporation is not subject to the grant payment percentage limit.

Schedule A: Grant Awards and Award Limits

VCP: The City Voluntary Cleanup Program administered by the Office of Environmental Remediation.BOA: The brownfield opportunity area. This is a program for area-wide brownfield and community planning managed by the New York State Department of State.N/A: not applicable.

1   Properties for which a grant is pursued can fall into only one type. The property type may change as conditions change.

2   Includes e-designation hazardous material sites and restrictive declaration hazardous material sites that are enrolled in the VCP.

3   This property type includes e-designation hazardous material sites and restrictive declaration hazardous materials sites that are also preferred community development projects and enrolled in the VCP.

4   A BOA grant recipient with an executed state assistance contract by definition also has an approved work program. A BOA grant recipient is eligible for local match grants both for step 1 and step 2 of the BOA program. A place-based community planning area with an agreement with the Office is eligible for a $25,000 BOA local match grant.

5   Limit includes all proceeds from pre-development grant.

6   Limit includes all proceeds from the pre-development grant and the environmental investigation grant. The grant amount reflects reduced funding of the BIG program. Projects that were enrolled in the city voluntary program by April 2013 receive larger BIG grant awards.

7   A not for profit developer of a preferred community development project, or a developer of a residential building where 100% of the units are affordable, is eligible for a $50,000 cleanup grant, which includes all proceeds of the predevelopment and environmental investigation grants.

8   A not for profit developer of a preferred community development project which is a BOA strategic site is eligible for a $50,000 cleanup grant, which includes all proceeds from the pre-development and environmental investigation grants.

9   For e-designation hazardous material sites and restrictive declaration hazardous material sites that are remediated pursuant to an Office-approved remedial work plan. The grant amount reflects the reduced funding of the BIG program. Projects that received a notice of satisfaction by April 2013 receive a larger BIG grant award.

10   Limit includes all proceeds from the pre-development grant, environmental investigation grant and cleanup grant. The grant amount reflects reduced funding of the BIG program. Projects that were enrolled in the city voluntary cleanup program by April 2013 receive larger BIG grant awards.

11   Limit includes all proceeds from the City pre-enrollment grant. If a City-supported affordable housing or industrial project is enrolled in the City voluntary cleanup program, the project would be eligible for a $50,000 cleanup grant.

12   Technical assistance grants for preferred community development projects are limited to not-for-profit developers.

13   The grant pays for technical assistance with development of a BOA program application or, for a place-based community planning area, services and consultation in planning for the re-use of a development site.

14   The maximum grant for a not-for-profit developer of a preferred community development project is $82,000.

15   The maximum grant for a not-for-profit developer of a BOA strategic site or a strategic site of a place-based brownfield community planning organization recognized by the Office is $92,000.

Schedule B: Eligible Services and Activities/Reimbursable Allowance a, b

a   All listed prices are inclusive of all subcontractor, professional oversight, materials and equipment costs.


b   The Grant Allowance amounts presented in Schedule B represent the maximum amounts up to which specified activities may be funded. An eligible service and activity will not necessarily be funded up to that maximum amount.


c   Pursuant to 43 RCNY § 43-1423(b)(4), predevelopment and environmental investigation grants, other than for preferred community development projects where the developer is a not-for-profit corporation, are reimbursed subject to the grant payment percentage limit of 75% for eligible costs for approved services and activities.


d   This column applies to preferred community development projects where the developer or community based organization is a not-for-profit corporation. Pursuant to 43 RCNY § 43-1423(b)(4), such projects are not subject to the grant payment percentage limit.


e   Reimbursement up to $85,000 subject to the project award cap. This payment is intended to cover all remedial action activities. This activity can only be selected for projects that have enrolled in the City’s Voluntary Cleanup Program.


f   Reimbursement up to $30,000 subject to the project award cap. This payment is intended to cover all remedial investigation activities and all document preparation activities including: a remedial investigation work plan, a Phase I environmental site assessment, a remedial investigation report, sampling, field oversight, mobilization, monitoring, chemical analysis and a remedial action work plan. This activity can only be selected for projects that have enrolled in the City voluntary cleanup program and no other costs for remedial investigation or remedial work plan preparation may be claimed.


g   Reimbursement up to $30,000 subject to the project award cap. This payment is intended to cover all remedial action oversight activities and all document preparation activities including: field oversight by staff, daily reports, CAMP monitoring and equipment, HASP monitoring, sample collection, and preparation of a remedial action report. It does not cover construction of remedial systems including engineering controls. This activity can only be selected for projects that have enrolled in the City voluntary cleanup program and no other costs for remedial action oversight or remedial action report preparation may be claimed.


h   Reimbursement for field oversight consists of oversight of active remedial work by a qualified environmental professional, CAMP monitoring equipment, HASP monitoring, and the collection of samples. The deliverable is a daily report that identifies the qualified environmental professional.


i   Eligible activities consist of the purchase of Pollution Legal Liability, Contractors Pollution Liability and Cleanup Cost Cap Insurance. The total amount of reimbursable expenses may not surpass the grant limits established in Schedule A. Purchase of environmental insurance for a project that subsequently enrolls in the City voluntary

Subchapter 3: New York City Green Property Certification Program

§ 43-1428 Purpose.

The New York City green property certification program is established to acknowledge the benefits to public health and the environment of remedial action to property in New York city performed by enrollees in the City voluntary cleanup program and in other government remediation programs that achieve equivalent property remediation.

§ 43-1429 Definitions.

For the purposes of this subchapter, the following terms have the following meanings:

  1. Agreement. “Agreement” means (1) for the City voluntary cleanup program, the City voluntary cleanup agreement, (2) for the New York state brownfield cleanup program, an agreement between the enrollee and the New York State department of environmental conservation setting forth the enrollee’s remedial obligations, or (3) for any other governmental remediation program, the agreements, stipulations, statutory requirements or regulations that govern management of such program.
  2. New York City green property certification. ” New York City green property certification” means formal recognition by the Office that a property in New York city under the City voluntary cleanup program or the New York State brownfield cleanup program, or that a property in New York city that is an equivalent remediation property, has been successfully remediated and that such remediation protects public health and the environment.
  3. Enrollee. “Enrollee” means an enrollee in the City voluntary cleanup program, as defined in 43 RCNY § 43-1402, an applicant in the New York State brownfield cleanup program, pursuant to § 27-1405 of the environmental conservation law, or a party who has performed an equivalent remediation of a property.
  4. Equivalent remediation property. “Equivalent remediation property” means a property that the Office has determined to have met the requirements of 43 RCNY § 43-1430(a)(2).
  5. Office. “Office” means the office of environmental remediation.
  6. Recipient. “Recipient” means an Enrollee who is eligible for and has been issued New York City green property certification, as well as such enrollee’s successors and assigns.

§ 43-1430 Eligibility.

  1. To be eligible for New York City green property certification, a property must be located in the City of New York and (1) be admitted to the City voluntary cleanup program or the New York State brownfield cleanup program or (2) be an equivalent remediation property.

   1. A property admitted to the City voluntary cleanup program or the New York State brownfield cleanup program will be eligible if the Enrollee has completed the requirements of the City voluntary cleanup agreement or the state brownfield cleanup agreement and received a notice of completion or certificate of completion from such program.

   2. A property will be eligible as an equivalent remediation property if the Office determines that:

      A. the property has been the subject of a governmental remediation program, including the New York State voluntary cleanup program, the New York State petroleum spills remediation program, the New York City e-designation or restrictive declaration hazardous materials program, or an equivalent remedial program;

      B. the Enrollee has successfully completed the requirements of such governmental remediation program and received a notice of completion or equivalent notification of completion from the appropriate City or state office or agency;

      C. for a property where residual contamination will remain after the completion of the remediation, the remedial action required pursuant to such governmental remediation program includes establishment of institutional and engineering controls for the property that are equivalent to those required pursuant to the City voluntary cleanup program, as provided in subchapter one of this chapter, including the maintenance of a site management plan to ensure compliance with institutional and engineering controls;

      D. the property is in compliance with such requirements for institutional and engineering controls; and

      E. the remedial action required pursuant to such governmental remediation program includes the investigation and remediation of the entire property for which a New York City green property certification is sought and addresses all media deemed appropriate by the Office, such as soil, soil vapor and groundwater, to an equivalent extent as required pursuant to the City voluntary cleanup program, as provided in subchapter one of this chapter.

   3. The Office may determine that one or more sub-parcels of a property are eligible as an equivalent remediation property and that one or more other sub-parcels are not eligible as an equivalent remediation property.

  1. Properties that have fulfilled the eligibility requirements for New York City green property certification pursuant to this section prior to the effective date of this section will be eligible for such certification.

§ 43-1431 Applications.

  1. No application is required for properties admitted to the City voluntary cleanup program.
  2. An application may be submitted for properties, especially those properties whose remediation is not regulated by the Office, including those that have completed the New York State brownfield cleanup program and those for which eligibility under an equivalent remediation property is sought. The Office may require information and documentation sufficient for the Office to determine whether a property is an equivalent remediation property.

§ 43-1432 Records.

  1. The Office will maintain a public record of all properties certified under the New York City green property certification program. The Office will provide confirmation of such certification to any member of the public upon request.
  2. The Office will provide a certificate and/or make available other symbols of New York City green property certification to the recipient.

§ 43-1433 Rescission and termination.

  1. The Office may rescind a New York City green property certification if it determines that a certified property is no longer in compliance with the agreement, the notice of completion or equivalent record of completion, or the site management plan governing institutional and/or engineering controls established within the respective remediation program to which the property is admitted. Compliance for the purpose of this subdivision includes compliance with reporting requirements. The Office may reinstate a New York City green property certification if it determines that the recipient has cured the non-compliance.

   1. If the Office seeks to rescind a New York City green property certification, it will provide notice to the recipient by certified mail specifying the basis for the Office’s proposed action and facts in support of that action.

   2. The recipient will have thirty days after the effective date of the notice to cure the non-compliance and submit proof of cure to the Office or to seek a hearing.

   3. If the recipient does not submit proof of cure or seek a hearing within such thirty day period, the New York City green property certification will be rescinded on the thirty-first day.

   4. If the Office determines that the non-compliance has been cured, the proposed rescission will be withdrawn.

   5. If the Office determines that the recipient has not proven that the non-compliance has been cured, the Office will provide notice to the recipient by certified mail. The recipient will have thirty days after the effective date of the notice to seek a hearing. If the recipient does not seek a hearing within such thirty day period, the New York City green property certification will be rescinded on the thirty-first day.

   6. A hearing pursuant to paragraph two or five of this subdivision will be held before the director of the office of environmental remediation or his or her designee, or in the director’s discretion, by the office of administrative trials and hearings. If the matter is referred to the office of administrative trials and hearings, the hearing officer must submit findings of fact and a recommended decision to the director. The director or his or her designee must make a final determination and notify the recipient within a reasonable period of time of such determination.

   7. For purposes of this subdivision, the effective date of notice will be two business days after the Office mails such notice by certified mail.

  1. The recipient of a New York City green property certification may terminate the certification upon written request to the Office.

§ 43-1434 Miscellaneous.

Certification categories. The Office may establish certification categories, including categories that recognize a cleanup for unrestricted use of the property and categories that recognize the use of sustainable methods for remediation and redevelopment of the property.

Subchapter 4: New York City Clean Soil Bank and Other Materials Exchange Program for Sustainability and Resilience

§ 43-1440 Applicability.

The New York City Clean Soil Bank and other types of materials exchange are available for properties that are enrolled in the City voluntary cleanup program, properties with an (E) Designation or a restrictive declaration that are remediating their sites under OER oversight, properties in a remedial program administered by DEC, City-owned, City-Financed, or City-Subsidized capital construction properties, and other City-Supported private development properties.

§ 43-1441 Definitions.

"DEC" means the New York State Department of Environmental Conservation.

“Eligible materials” means soil or other materials, such as compost, asphalt millings, mulch, woodchips, concrete aggregate, or topsoil, that meet the requirements of 6 NYCRR Part 360 and 6 NYCRR Part 375 that are applicable and consistent with lawful materials transfer or agreements between the Office and DEC.

“Generating property” means a property that the Office admits into the New York City Clean Soil Bank or other materials exchange to dispose of surplus eligible materials.

“Office” or “OER” means the New York City Office of Environmental Remediation.

“Receiving property” means a property that the Office admits into the New York City Clean Soil Bank and other materials exchange to receive eligible materials that will be used for backfill or other beneficial uses on the property.

§ 43-1442 Eligible Properties.

  1. The following properties are eligible to participate in the New York City Clean Soil Bank and Other Materials Exchange Program as properties that generate or receive eligible soil materials for exchange:

   1. Properties that are enrolled in the City voluntary cleanup program;

   2. Properties with an (E) Designation or a restrictive declaration that are remediating their sites under OER oversight;

   3. Properties in a remedial program administered by DEC;

   4. City-Owned, City-financed, or City-Subsidized capital construction properties;

   5. City-operated or City-financed materials storage or processing facilities; and

   6. Other City-Supported private development properties.

  1. Generating properties that are not in remedial or other programs operated by the Office or DEC must perform equivalent remedial investigation and remedial action under the Office’s oversight in order to be eligible.

§ 43-1443 Operation of the New York City Clean Soil Bank and Other Materials Exchange Program.

  1. To apply to be a generating property, eligible properties other than City-operated facilities must submit a soil or other materials availability form to the Office. The Office will determine if the soil or other material is eligible for transfer to a receiving property. For soil exchange, this will be done by comparing soil quality to the soil quality required by applicable laws, rules, regulations and agreements between the Office and DEC.
  2. To apply to be a receiving property, eligible properties must submit a soil or other materials request form to the Office.
  3. If the Office determines that the needs of a receiving property and a generating property may match, the Office will inform each property. In matching eligible properties, the Office will adhere to the following priority order: City-Owned or City-Financed construction properties first, properties enrolled in City or State remedial programs second, and City-Supported private sites not enrolled in a City or State remedial program third.
  4. Parties must negotiate terms for the transfer of eligible materials directly with each other, although for City-Operated generating properties, these negotiations may be facilitated by OER if an agency requests its assistance. Reaching an agreement on final terms for transfer is the responsibility of the generating and receiving property, and not the responsibility of the Office. However, OER may negotiate terms on behalf of City agencies if an agency requests its assistance.
  5. Once a generating property has reached an agreement with a receiving property to transfer eligible materials, the parties must notify the Office.
  6. All transfers of soil or other materials must be in compliance with all applicable laws, rules and regulations or with applicable agreements between the Office and DEC.
  7. Prior to the transfer of any eligible materials, all private parties participating in the New York City Clean Soil Bank and Other Materials Exchange Program may be required to release the City from any liability and indemnify the City.

Subchapter 5: New York City Environmental Review and Assessment Program

§ 43-1450 Environmental review and assessment letter.

The office may issue environmental review and assessment letters if requested to do so by a person or entity. An environmental review and assessment letter is typically issued in connection with a proposed financing or re-financing of real property and states that the existing condition of a site does not require further action. The fee for obtaining an environmental review and assessment letter from OER is $3,500.

Subchapter 6: Miscellaneous Fees, Modification of Special Mixed Use Noise Requirements

§ 43-1460 Fee for hazardous waste program fee exemption.

*§ 43-1461 Modification of special mixed use noise requirements.* ::
  1. Definitions.

   “CEQR Technical Manual” means the City Environmental Quality Review Technical Manual , as amended.

   “dBA” means a measure of sound as experienced by the human ear.

   “Full build year” means the year of completion for the proposed action set forth in the Environmental Assessment Statement (EAS) or Environmental Impact Statement (EIS).

   “Ldn” means the equivalent sound level for a 24-hour period with an additional 10 dB imposed on the equivalent sound levels for night time hours between 10:00 P.M. and 7:00 A.M.

   “Leq(1)” means the equivalent continuous sound level that over a one-hour period has the same total energy as the actual fluctuating sound level over a one-hour period.

   “L10(1)” means the stated sound level that is exceeded 10 percent of the time during a one-hour period. It is derived from Lx(t), where “x” is the percentage of time that the sound level has been exceeded and “t” is the total period of time that the sound has been recorded.

   “Noise descriptor” means a continuous sound level measured during a noise monitoring test according to an approved noise monitoring protocol. Leq(1), L10(1) and Ldn are Noise descriptors.

   “Noise monitoring protocol” means a document prepared by an acoustical specialist describing the conditions, locations, and Noise descriptors to be used in assessing existing noise levels during a continuous 24-hour period.

   “Office” or “OER” shall mean the New York City Office of Environmental Remediation.

   “Owner” shall mean the person, including his or her successors or assigns, who is the recorded title holder of a tax lot(s).

   “Zoning action” means an action, such as a special permit, authorization, certification, or variance, pursuant to provisions of the Zoning Resolution.

   “Zoning amendment” means a proposed amendment to the text or maps of the Zoning Resolution, subject to review and approval pursuant to §§ 197-c, 197-d and 200 of the New York City Charter.

   “Zoning Resolution” means the Zoning Resolution of the City of New York, effective December 15, 1961, as amended

  1. Modification of Special Mixed Use Noise Requirements. Pursuant to the Zoning Resolution, the owner of a building located in a Special Mixed Use District may apply to OER for a modification of the noise requirements based upon new information, additional facts or updated standards. OER may modify such noise requirements, provided that such modifications are protective of both the public health and the environment.

   1. The applicant must conduct (i) a 24-hour noise monitoring test of the lot to record in dBA the Leq(1), L10(1) and the Ldn Noise Descriptors; (ii) traffic counts; and (iii) a land use analysis.

   2. The applicant must submit its Noise Monitoring Protocol to OER for review and approval before conducting any testing.

   3. Where applicable, the Noise Descriptors must be projected to the Full Build Year of the relevant Zoning Amendment or Zoning Action, according to the same methodology used in the environmental review.

   4. Following a 24-hour noise monitoring test, the applicant must submit to OER a report summarizing the results of the test and include in the report all documents generated by the 24-hour noise monitoring study.

   5. OER will evaluate the test results based on the Special Mixed Use District requirements and the values and guidance found in the CEQR Technical Manual. If the results satisfy the CEQR Technical Manual, OER will agree to modify the required noise attenuation described in the Zoning Resolution.

   6. If OER agrees to modify the noise requirements, OER will provide the department of buildings with notice of such modification, stating that it does not object to the issuance of a building permit, or a temporary or final certificate of occupancy.

  1. Fee for Modifying Special Mixed Use Noise Requirements. An applicant requesting that the Office modify the required noise attenuation in a special mixed use district pursuant to § 123-32 of the Zoning Resolution, or in another area where the Office is authorized to make such modification, must pay a fee of $1,050.

   1. OER will conduct an initial review of an application and thereafter inform the applicant of the fee amount.

   2. Each payment must be in the form of a personal, business or certified check or money order made payable to “New York City Department of Environmental Protection/Office of Environmental Remediation (DEP/OER)” and will be sent to the address provided on the Office’s website (Attention: “Accounts Receivable”). The applicant must include the OER project number and/or project name on the certified check.

   3. An applicant can request a meeting with OER regarding the required contents of the Noise Monitoring Protocol and any report required pursuant to this subchapter.

   4. Upon receipt of a submission required pursuant to this subchapter, OER will review the submission and endeavor to provide written comments within thirty (30) days of receipt of the submission.

   5. The applicant must submit all documents, plans, and reports in digital form and in a format established by OER.

   6. If OER requests additional information or a revised submission, the applicant shall submit the requested information.

      A. Revised submissions will be reviewed by OER as expeditiously as possible.

      B. Upon receipt of all information requested, OER will endeavor to approve the document, modify the document, or issue comments on the submission within thirty (30) days.

   7. If the applicant disagrees with OER’s comments, the applicant must be given an opportunity to respond in writing, setting forth the applicant’s position regarding any additional information.

   8. Upon receipt and review of applicant submissions, OER will endeavor to issue a determination within thirty (30) days.

Chapter 16: Unlawful Advertisement for Certain Occupancies*

§ 16-01 Certain advertising prohibited.

It is unlawful to advertise occupancy and use of dwelling units in a class A multiple dwelling for occupancy that would violate subdivision eight of section four of the New York State Multiple Dwelling Law, defining a “Class A” multiple dwelling as a multiple dwelling that is occupied for permanent residence purposes.

§ 16-02 Definition.

For purposes of this chapter, the term “advertise” means any form of communication, promotion or solicitation, including but not limited to direct mail, newspapers, magazines, flyers, handbills, television commercials, radio, signage, direct mail, websites, text messages or similar displays, intended or used to induce, encourage or persuade the public to enter into a contract for goods and/or services.

§ 16-03 Recommended penalties.

Any person found to have violated the provisions of 43 RCNY § 16-01 will be liable for a civil penalty of $1,000 for the first violation, $5,000 for the second violation and $7,500 for the third and subsequent violations.

§ 16-04 Adjudication.

Violations of 43 RCNY § 16-01 will be adjudicated by the Environmental Control Board within the Office of Administrative Trials and Hearings.

Chapter 17: Required Disclosures of Short-Term Rental Transactions by Booking Services*

§ 17-01 Definitions.

Administering agency. The term “administering agency” means the Office of Special Enforcement, as established under executive order number 96 for the year 2006, or such other agency as subsequently designated by executive order.

Booking Service. The term “booking service” means a person who, directly or indirectly: (1) provides one or more online, computer or application-based platforms that individually or collectively can be used to (i) list or advertise offers for short-term rentals, and (ii) either accept such offers, or reserve or pay for such rentals; and (2) charges, collects or receives a fee for the use of such a platform or for provision of any service in connection with a short-term rental. A booking service shall not be construed to include a platform that solely lists or advertises offers for short-term rentals.

Building. The term “building” means a building as defined in the New York City building code that is located in the City.

Class B multiple dwelling. The term “class B multiple dwelling” shall have the meaning ascribed to such term in the housing maintenance code.

Directly or indirectly. The term “directly or indirectly” means a person acting directly or indirectly through any subsidiary or affiliate thereof to perform the activity described in the definition of booking service.

Dwelling unit. The term “dwelling unit” means a dwelling unit, as such term is defined in the housing maintenance code, that is located in a building within the City.

Host. The term “host” means a person other than a booking service, including a co-host, who uses a booking service to offer, manage or administer a short-term rental.

Listing. The term “listing” means an online advertisement offering a short-term rental.

Short-term rental. The term “short-term rental” means a rental for occupancy of fewer than 30 consecutive days of (i) a dwelling unit or part thereof or (ii) housing accommodations within a building.

§ 17-02 Reporting requirements for booking services.

  1. A booking service shall submit to the administering agency a report of transactions for which it charged, collected or received a fee, directly or indirectly, for activity described in the definition of booking service, except those transactions described in 43 RCNY § 17-05. Each short-term rental associated with such fee is considered to be a separate transaction. Such report shall include the following information:

   a. The physical address of the short-term rental associated with such transaction, including the street name, street number, apartment or unit number, borough or county, and zip code;

   b. The full legal name, physical address, phone number and email address of the host of such short-term rental and the uniform resource locator (URL) and the individualized name and number of such host on such booking service’s platform;

   c. The individualized name and number and the URL of such advertisement or listing;

   d. A statement as to whether such short-term rental transaction involved (i) short-term rental of the entirety of a dwelling unit or housing accommodations in a building or (ii) short-term rental of part of such unit or housing accommodations;

   e. The total number of days that the dwelling unit, part thereof or housing accommodations in a building were rented as a short-term rental through such booking service’s platform;

   f. The total amount of fees received by such booking service for such short-term rental; and

   g. If such booking service collects rent for short-term rentals on behalf of such host, (i) the total amount of such rent received by such booking service and transmitted to such host and (ii) the account name and consistently anonymized identifier for the account number for the account used by such host to receive payments from such booking service or, if such booking service provides an explanation why such anonymized identifiers are unavailable, the account name and account number for such account, provided that a booking service shall, considering its technical capacity, de-identify the account number to the greatest extent possible so as to protect the privacy and security of the account number. De-identification of a unique account number shall be consistent from report to report.

  1. In instances where such information is unavailable to the booking service, the booking service shall provide an explanation of why such information is unavailable.
  2. With the exception of the initial report submitted by a booking service, each report shall cover transactions occurring during a period that begins with the first day of a month and ends with the last day of the same month. The initial report submitted by a booking service shall cover the period that begins the day Local Law 146 of 2018 takes effect to the last day of the month following the month in which the law takes effect.
  3. A transaction related to a short-term rental that begins in one month but ends in the subsequent month shall be included in the report covering the month in which the rental concludes.
  4. The initial report shall be submitted not more than 60 calendar days after the conclusion of the initial reporting period. Following the initial report, a booking service must submit the report to the administering agency not more than 45 calendar days after the conclusion of the reporting period.

§ 17-03 Method of submission.

  1. Each report shall be electronically submitted by a booking service through a secure portal accessible from the administering agency’s website.
  2. The portal may require a booking service to submit contact information, including an email address, to be used by the administering agency for communications related to booking service submissions.
  3. A booking service may apply for an exception to electronic submission, indicating specifically a proposed alternate secure method of submission and the reporting period(s) for which it seeks the exception. Such exception shall be granted only in the following circumstances, and at the sole discretion of the administering agency:

   a. the booking service has fewer than 20 hosts;

   b. the booking service had fewer than 100 short-term rental transactions during the reporting period; or

   c. the booking service is prevented from using the prescribed submission method based on a technical disruption that is beyond its control or another such unusual circumstance that exists.

  1. The report shall be submitted in an electronic format prescribed and published on the administering agency’s website no later than the close of the initial reporting period. Reports not in compliance with the required formatting will be rejected and deemed missing, except for those booking services that were granted an exception pursuant to this section. The administering agency shall provide at least 90 days notice before any changes to the formatting requirements take effect. The 90-day notice shall be published on the administering agency’s website and sent to all booking services who have submitted at least one report previously, via the contact information provided by the booking service.

§ 17-04 Penalties.

  1. A booking service that fails to submit a report in compliance with the requirements of this chapter shall be liable for a civil penalty, to be assessed once per reporting period for each set of missing, incomplete or inaccurate records corresponding to a unique listing.
  2. In the event that a booking service’s report is missing, incomplete, or inaccurate, the administering agency shall provide the booking service a written notice of deficiencies in compliance. The notice shall include specific information regarding deficiencies in need of correction. The booking service shall have 15 business days from the date such a notice is provided to either correct the deficiency or provide a written statement explaining why the required information is unavailable or how it is complete or accurate. The booking service shall submit the corrections or explanation in a manner directed in the notice of deficiency. Upon the conclusion of the 15 business-day period in which a booking service may cure deficiencies, the administering agency may seek civil penalties for any continuing deficiency.
  3. The civil penalty shall not be more than the greater of $1,500 or the total fees collected during the preceding year by the booking service for transactions related to the unique listing for which there is missing, incomplete or inaccurate information being reported. Penalties based on total fees shall not include any fees that were used to assess a previous penalty.
  4. Civil penalties established by this section may be imposed and recovered in a proceeding before the office of administrative trials and hearings or a court of competent jurisdiction.

§ 17-05 Exempt transactions based on rentals occurring in certain buildings.

  1. The administering agency shall publish a list of addresses for buildings it has reason to believe at the time of such publication are class B multiple dwellings lawfully used for transient occupancy. Booking services are not required to include in reports transactions which are based on a short-term rental occurring in a building on this list, and no penalties shall be assessed based on the absence of or material deficiencies for transactions occurring at these addresses in such report.
  2. Inclusion or lack of inclusion on such list does not alter and may not be deemed to alter the legal occupancy or zoning use group of a building or portion thereof as described in the certificate of occupancy or as otherwise determined by the Department of Buildings (“DOB”).
  3. The administering agency shall publish the list of exempt buildings on its website no later than 15 business days after Local Law 146 of 2018 takes effect. The list shall be updated every six months thereafter, and published in the same location.
  4. The owner, as defined in the housing maintenance code, of a building not included on the list may apply to the administering agency for a review of the building’s legal occupancy and inclusion on the list. Any individual, including, but not limited to, owners, tenants, neighbors, or civic groups may apply to the administering agency for a review of a building’s legal occupancy and removal from the list.
  5. An application for inclusion on or removal from the exempt buildings list shall indicate the basis for adding or removing the building to or from the list, and must include all documents and statements supporting the application. The application must include the currently applicable certificate of occupancy, if one is available from the DOB. If no currently applicable certificate of occupancy is available, the application must include other relevant and applicable documentation of the current lawful uses of the multiple dwelling which the applicant is seeking to be added to or removed from the list. Such documentation may include I-cards maintained by the Department of Housing Preservation and Development or other records maintained by the DOB regarding the subject multiple dwelling, including DOB job applications. The supporting documents and statements shall be submitted to the administering agency in the particular format specified on the administering agency’s website.
  6. The application must be accompanied by payment to the City of a $200 processing fee. The administering agency may waive the processing fee upon request of the applicant if doing so would be in the public interest. If an application is withdrawn before the administering agency conducts its review, partial or full refund of processing fees shall be provided upon application to the Comptroller of the City of New York, and upon verification of claim by the administering agency.
  7. The administering agency shall review all documents and statements submitted in support of the application, and may consider any other information it deems relevant.
  8. The administering agency shall notify the applicant in writing of the final agency decision within 60 days of receipt of the application.
  9. Subsequent applications for review of a previously reviewed building filed by the same applicant will only be considered if there has been a change in the legal occupancy occurring after the previous agency decision.

§ 17-06 Privacy and security of information.

  1. Information submitted in the report shall be available for public review only to the extent required by federal, state and local law.
  2. Unless otherwise required by federal, state or local law, reports submitted pursuant to this chapter and information contained therein shall be used by the administering agency and the personnel of agencies assigned to such administering agency solely for purposes related to the enforcement of laws relating to short-term rentals, and shall be kept confidential by the administering agency and such personnel, and shall not be revealed by the administering agency or such personnel in any other manner or under any other circumstances.
  3. Identifying information, as defined in Section 23-1201 of the administrative code, will be collected, retained, and disclosed by the administering agency only in compliance with this chapter, in accordance with the requirements and approvals required by Chapter 12 of Title 23 of the administrative code, and only with all approvals required by that chapter.
  4. When receiving requests for information in the reports pursuant to the New York state freedom of information law (“FOIL”), the administering agency must consider whether disclosure of such information would constitute an unwarranted invasion of personal privacy, and shall deny access to those portions of the records that would constitute such an invasion if released. In accordance with Sections 87(2) and 89(2) of the New York State public officers law, the administering agency may withhold identifying information, prior to making records available for public inspection. In the event that the administering agency is compelled by law to disclose such records without withholding the identifying information, the administering agency shall, prior to such disclosure, notify the individuals whose identifying information must be disclosed. Submission of such notice to the email address provided by the booking service for each such individual shall constitute an adequate attempt to notify the individual.
  5. When receiving demands for records pursuant to subpoena, court order, or other legal process, the administering agency must consider whether it is appropriate or feasible to seek a court order quashing, modifying, or protecting against subsequent disclosure.
  6. The administering agency shall protect the privacy and security of identifying information by implementing appropriate physical, technical and administrative safeguards, in accordance with the city’s information technology security standards and requirements relating to the use, transfer and storage of confidential data, as set forth by the department of information technology and telecommunications.

§ 17-07 Retention and Disposal of Information Obtained in the Report.

  1. The administering agency will retain the reports:

   a. As long as investigations involving the information in the reports remain open; or

   b. For a period of three years after investigations are closed, except that records involved in civil court litigation will be kept for a period of 10 years after close of the case.

  1. Records will be kept in the administering agency offices for three years after investigations are closed, and thereafter in the Records Center in the case of litigation records.
  2. Booking services must retain all submitted reports for three years.

§ 17-08 No Private Right of Action.

  1. Nothing contained in this chapter shall be construed as creating any private right of action against the City or any agency, office or employee thereof.