1. General Requirements.
(a) On and after June 28, 2004, no cigarettes subject to the provisions of section 156-c of the Executive Law shall be sold or offered for sale in this state unless:
(1) such cigarettes have been tested in accordance with the test method prescribed in section 3 of this Part;
(2) such cigarettes meet the performance standard specified in section 4 of this Part; and
(3) a written certification has been filed by the manufacturer with the Department of State, Office of Fire Prevention and Control, 41 State Street, Albany, New York, 12231-0001, and the Office of the Attorney General, Cigarette Fire Safety Certifications, Administration Office, State Capitol, Albany, New York 12224 in accordance with section 6 of this Part.
(b) Nothing in this Part shall prohibit wholesale dealers or retail dealers from selling their inventory of cigarettes existing on June 28, 2004, provided that such wholesale dealer or retail dealer can establish that New York State tax stamps were affixed to such cigarettes pursuant to Article 20 of the Tax Law prior to June 28, 2004, and provided further that such wholesale dealer or retail dealer can establish that such inventory was purchased prior to June 28, 2004 in comparable quantity to the inventory purchased during the same period of 2003.

2. Definitions. For the purposes of this Part:
(a) "Agent" shall have the same meaning as subdivision eleven of section four hundred seventy of the tax law.
(b) "Cigarette" shall mean any roll for smoking whether made wholly or in part of tobacco or any other substance, irrespective of size or shape and whether or not such tobacco or substance is flavored, adulterated or mixed with any other ingredient, the wrapper or cover of which is made of paper or any other substance or material except tobacco.
(c) "Manufacturer" shall mean:
(1) any entity which manufactures or otherwise produces cigarettes or causes cigarettes to be manufactured or produced anywhere that such manufacturer intends to be sold in New York State, including cigarettes intended to be sold in the United States through an importer; or
(2) the first purchaser anywhere that intends to resell in the United States cigarettes manufactured anywhere that the original manufacturer or maker does not intend to be sold in the United States; or
(3) any entity which becomes a successor of an entity described in paragraph (1) or (2) of this subdivision.
(d) "Repeatability" shall mean the range of values within which the repeat results of cigarette test trials from a single laboratory will fall 95 per cent of the time.
(e) "Retail dealer" shall have the same meaning as subdivision nine of section four hundred seventy of the tax law.
(f) "Sale" shall mean any transfer of title or possession or both, exchange or barter, conditional or otherwise, in any manner or by any means whatever or any agreement therefor. In addition to cash and credit sales, the giving of cigarettes as samples, prizes or gifts, and the exchanging of cigarettes for any consideration other than money are considered sales.
(g) "Sell" shall mean to sell, or to offer or agree to do the same.
(h) "Quality control and quality assurance program" shall mean the laboratory procedures implemented to ensure that operator bias, systematic and nonsystematic methodological errors, and equipment related problems do not effect the results of the testing. This program ensures that the testing repeatability remains within the required repeatability values stated in section 3(e) of this Part for all test trials used to certify cigarettes in accordance with this regulation.
(i) "Wholesale dealer" shall have the same meaning as subdivision eight of section four hundred seventy of the tax law.

3. Test Method.
(a) Testing of cigarettes shall be conducted in accordance with the American Society of Testing and Materials ("ASTM") standard E2187-02b "Standard Test Method for Measuring the Ignition Strength of Cigarettes," subject to the modifications stated in Appendix A to this Part. This standard may be obtained from the publisher at ASTM International, 100 Barr Harbor Drive, P. O. Box C700, W. Conshohocken, Pennsylvania 19428-2959. This material is available for public inspection and distribution at the Department of State, Office of Fire Prevention and Control, 41 State Street, Albany, New York 12231-0001.
(b) Testing shall be conducted on 10 layers of filter paper.
(c) Forty replicate tests shall comprise a complete test trial for each cigarette tested.
(d) The performance standard required by section 4 of this Part shall only be applied to a complete test trial.
(e) Laboratories conducting testing in accordance with this section shall implement a quality control and quality assurance program that includes a procedure that will determine the repeatability of the testing results. The repeatability value shall be no greater than 0.19 pursuant to section 4 of this Part.

4. Performance Standard.
(a) When tested in accordance with section 3 of this Part, no more than 25 percent of the cigarettes tested in a test trial shall exhibit full length burns.
(b) Each cigarette listed in a certification submitted pursuant to section 6 of this Part that uses lowered permeability bands in the cigarette paper to achieve compliance with the performance standard set forth in subdivision (a) of this section shall have at least two nominally identical bands on the paper surrounding the tobacco column. At least one complete band shall be located at least 15 millimeters from the lighting end of the cigarette. For cigarettes on which the bands are positioned by design, there shall be at least two bands fully located at least 15 millimeters from the lighting end and 10 millimeters from the filter end of the tobacco column (or 10 millimeters from the labeled end of the tobacco column for a non-filtered cigarette).
(c) The manufacturer or manufacturers of a cigarette that the Office of Fire Prevention and Control determines cannot be tested in accordance with the test method prescribed in section 3 of this Part shall propose a test method and performance standard for such cigarette to the Office of Fire Prevention and Control. Upon approval of the proposed test method and a determination by the Office of Fire Prevention and Control that the performance standard proposed by the manufacturer or manufacturers is equivalent to the performance standard prescribed in section 4 of this Part, the manufacturer or manufacturers may employ such test method and performance standard to certify such cigarette pursuant to section 6 of this Part. All other applicable requirements of this Part shall apply to such manufacturer or manufacturers.

5. Test Data.
In order to ensure compliance with the performance standard specified in section 4 of this Part, data from testing conducted by manufacturers to comply with this performance standard shall be kept on file by such manufacturers for a period of 3 (three) years and shall be sent to the Office of Fire Prevention and Control upon its request, and to the Office of the Attorney General upon its request, at the addresses specified in section 1(a)(3) of this Part.

6. Certification.
(a) Each manufacturer shall submit a written certification attesting that:
(1) each cigarette listed in the certification has been tested in accordance with section 3 of this Part; and
(2) each cigarette listed in the certification meets the performance standard set forth in section 4 of this Part.
(b) Each cigarette listed in the certification shall be described with the following information:
1. brand (i.e., the trade name on the package)
2. style (e.g., light, ultra light)
3. length in millimeters
4. circumference in millimeters
5. flavor (e.g., menthol, chocolate) if applicable
6. filter or non-filter
7. package description (e.g., soft pack, box)
8. marking approved in accordance with section 8 of this Part.
(c) Each cigarette certified under this section shall be re-certified every three years.

7. Notification of Certification.
Manufacturers certifying cigarettes in accordance with section 6 of this Part shall provide a copy of such certifications to all wholesale dealers and agents to which they sell cigarettes, and shall also provide sufficient copies of an illustration of the cigarette packaging marking utilized by the manufacturer pursuant to section 8 of this Part for each retailer to which the wholesale dealers and agents sell cigarettes. Wholesale dealers and agents shall provide a copy of these cigarette packaging markings received from manufacturers to all retail dealers to which they sell cigarettes. Wholesale dealers, agents, and retail dealers shall permit the Office and Fire Prevention and Control to inspect markings of cigarette packaging marked in accordance with section 8 of this Part.

8. Marking of Cigarette Packaging.
(a) Cigarettes which have been certified by a manufacturer in accordance with section 6 of this Part shall be marked to indicate compliance with the requirements of this Part. Such marking shall be in eight point type or larger and consist of :
(1) Modification of the product UPC Code to include a visible mark printed at or around the area of the UPC Code. Such mark may consist of alphanumeric or symbolic character(s) permanently stamped, engraved, embossed or printed in conjunction with the UPC; or
(2) Any visible combination of alphanumeric or symbolic character(s) permanently stamped, engraved, or embossed upon the cigarette package or cellophane wrap; or
(3) Printed, stamped, engraved or embossed text that indicates that the cigarettes meet New York Standards.
(b) Such marking shall be unique to packages that meet New York Standards.
(c) A manufacturer must use only one marking, and must apply this marking uniformly for all packages (including but not limited to packs, cartons, and cases) and brands marketed by that manufacturer.
(d) The Office of Fire Prevention and Control must be notified at the address specified in section 1(c) of this Part as to the marking which is selected.
(e) Prior to the certification of any cigarette, a manufacturer shall present its proposed marking to the Office of Fire Prevention and Control for approval. Upon receipt of the request, the Office of Fire Prevention and Control will approve or disapprove the marking offered. Proposed markings shall be deemed approved if the Office of Fire Prevention and Control fails to act within 10 business days of receiving a request for approval.
(f) No manufacturer shall modify its approved marking unless the modification has been approved by the Office of Fire Prevention and Control in accordance with this section.

9. Severability.
If any clause, sentence, paragraph, or section of this Part be adjudged by any court of competent jurisdiction to be invalid, such judgment shall not affect, impair or invalidate the remainder hereof but shall be applied in its operation to the clause, sentence, paragraph, or section hereof directly involved in the controversy in which such judgment shall have been rendered.

The provisions of American Society of Testing and Materials ("ASTM") standard E2187-02b "Standard Test Method for Measuring the Ignition Strength of Cigarettes," referenced in section 3(a) of Part 429 of Title 19 NYCRR, are modified for the purposes of this rule as follows:

(1) Section 6.2.2. is changed to read:
Respiratory equipment shall be made available for personnel upon request or if the environmental conditions in the laboratory warrant.

(2) Sections 7.3 to 7.5. are changed to allow the following dimensions and allowances for the test apparatus:

Note: the outer diameter of the metal rim is not to exceed the inner diameter of the recess in the filter paper holder.

(3) Section 7.6 is changed to read that the holder shall not contact the cigarette within a nominal 30 mm (1.2 in) of its lit end.

(4) Section 7.7. is changed to delete the word "pencil" in describing the mark on the cigarette.

(5) Section 8.1.2. is changed to read:
The non-turbulent smoke column height is to be a nominal 150 mm (6 in) above the lit end of the cigarette.

(6) Section 9.1. is changed to read:
Cigarette test specimens and filter paper substrates are sensitive to contamination. Test cigarettes shall be handled only by the last nominal 25 mm (1 in) of the end of the cigarette that is not to be lit. The sheets of filter paper shall not be handled in the vicinity where the cigarette will contact the paper during a test. In all cases, the materials shall be handled with dry hands only.

Note: The use of clean, dry, non-powdered surgical gloves can mitigate incidental contamination of the test materials while maintaining operator dexterity.

(7) The last sentence in Section 9.2.1. is changed to read:
If the specimens are to be stored by the testing laboratory for more than one week, they shall be placed in a freezer at approximately 0 C (32 F) to -20 C (-4 F) reserved for the sole protection of cigarette specimens to minimize the risk of contamination.

(8) Section 9.2.2. is changed to read:
Prior to testing, cigarette test specimens shall be marked, using a #2 or softer graphite pencil or other marking, 5 mm ±1 mm and 15 mm ±1 mm (0.2 in and 0.6 in, each ±0.04 in) from the end of the cigarette that will be lit. These marks are used to establish the start (11.4) and completion (11.5.4) of a uniform pre-burn period, respectively. Neither the process of marking the cigarette nor the mark itself shall significantly affect the cigarette burn rate.

(9) In Section 9.3 and its subparagraphs, the mean mass, rather than the median mass shall be used in all cases. In addition, the following Section 9.3.3 is added to Section 9.3. :

9.3.3 Pending assurance of the availability of filter paper that meets the specifications in Sections 9.3.1 and 9.3.2, the following provisions shall apply:
Paper with a mean conditioned mass of 25.1 g to 26.6 g (for 15 sheets) and a mean dry mass of 23.7 g to 25.2 g shall be used for the testing of cigarettes.
The standard deviation of at least five samples (dry and conditioned) shall not exceed 0.4 g.

(10) Section 10.1. is changed to read:
Cigarettes shall be conditioned at a relative humidity of 55 ±5 % and a temperature of 23 ±3°C (73° ±5°F) for at least 24 h prior to testing. The cigarettes shall be placed in a clean, open container, with the number of cigarettes being sufficiently small as to enable free air access to the specimens, for example, a maximum of 20 cigarettes in a 250 mL polyethylene or glass beaker.

(11) The following note is added to section 11.4.1:

Note: This provision need not be followed by an individual test operator if that operator has demonstrated that lifting the restriction does not introduce error that significantly changes either the measured ignition strength or the uncertainty of that measurement. This determination is the responsibility of the testing laboratory.

(12) Section 11.5 is changed to read:
Holding the cigarette vertically, coal end up, transport the cigarette to the test chamber.

Note: It has been found that holding a 600 mL beaker over the cigarette coal is helpful in mitigating the likelihood of a foreign object or room air current impacting the cigarette during transport and thus leading to the need to terminate the determination.