NEW YORK STATE

April 4, 2018 DEPARTMENT OF STATE

Vol. XL Division of Administrative Rules

Issue 14

NEW YORK STATE

INSIDE THIS ISSUE:

D Group Size and Supervision Ratios in Legally-Exempt Child Care Settings and Legally-

Exempt Group Child Care Financial Incentives

D Revisions to the Regulations that Implement the State Environmental Quality Review Act

D Early and Periodic Screening, Diagnostic and Treatment Services for Children

Notice of Availability of State and Federal Funds

Executive Orders

Court Notices

State agencies must specify in each notice which proposes a rule the last date on which they will accept public

comment. Agencies must always accept public comment: for a minimum of 60 days following publication in the

for 30 days after publication of a Notice of Revised Rule Making, or a Notice of Emergency Adoption and Revised

Rule Making in the Register. When a public hearing is required by statute, the hearing cannot be held until 60 days

after publication of the notice, and comments must be accepted for at least 5 days after the last required hearing.

When the public comment period ends on a Saturday, Sunday or legal holiday, agencies must accept comment through

the close of business on the next succeeding workday.

For notices published in this issue:

– the 60-day period expires on June 3, 2018

– the 30-day period expires on May 4, 2018

ANDREW M. CUOMO

GOVERNOR

ROSSANA ROSADO

SECRETARY OF STATE

NEW YORK STATE DEPARTMENT OF STATE

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NEW YORK STATE

KEY: (P) Proposal; (RP) Revised Proposal; (E) Emergency; (EP) Emergency and Proposal; (A) Adoption; (AA) Amended Adoption; (W)

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Rule Making Activities

Children and Family Services, Ofﬁce of

1 / Group Size and Supervision Ratios in Legally-Exempt Child Care Settings and Legally-Exempt

Group Child Care Financial Incentives (EP)

Environmental Conservation, Department of

3 / Revisions to the Regulations that Implement the State Environmental Quality Review Act (RP)

Financial Services, Department of

6 / Notice of expiration

Information Technology Services, Ofﬁce of

6 / Implementing the Electronic Signatures and Records Act (A)

6 / Concerning State Agency Internet Posting of Application Forms (A)

7 / Providing Public Access to the Records of the Ofﬁce of Information Technology Services (A)

7 / Providing Access to Personal Information (A)

Mental Health, Ofﬁce of

7 / Early and Periodic Screening, Diagnostic and Treatment Services for Children (RP)

People with Developmental Disabilities, Ofﬁce for

8 / Telephone Service (P)

Public Service Commission

9 / Authorization of a New Tariff Leaf, Rider A, for High Density Demand Customers (EP)

10 / Pension Settlement Deferral (A)

10 / Annual Gas Cost Reconciliation and Alternative Cost Recovery Mechanism (A)

10 / Gas Safety Performance Metrics (A)

10 / Proposed Public Policy Transmission Needs/Public Policy Requirements (A)

11 / Electric Rate Plan (A)

11 / Gas Rate Plan (A)

11 / Energy Efﬁciency Budgets and Targets for 2019-2020 (A)

13 / ESCO Eligibility (A)

13 / Request for Maintenance Support (A)

14 / Tier 2 of the RES (A)

14 / Financing Petition (A)

15 / CCA Program (A)

15 / Administrative Costs and Funding Sources for the Renewable Energy Standard and Zero-Emissions

Credit Program (A)

15 / Waiver Request (A)

16 / Petition for Clariﬁcation (A)

16 / Petition for a Waiver of the Prohibition on Service to Low-Income Customers by ESCOs (A)

16 / Terms of a Service Agreement and Waiver of Tariff Provisions (P)

16 / Transfer of Certain Street Lighting Facilities (P)

17 / Petition for Abandonment (P)

17 / An Offshore Wind Generating Facilities Program (P)

Urban Development Corporation

New York State Register April 4, 2018/Volume XL, Issue 14

19 / Regional Revolving Loan Trust Fund (P)

Workers’ Compensation Board

20 / Workers’ Compensation Board — Option to Self-Insure for Jockey Fund (A)

Hearings Scheduled for Proposed Rule Makings / 21

Action Pending Index / 23

Securities Offerings

67 / State Notices

Advertisements for Bidders/Contractors

69 / Sealed Bids

Notice of Availability of State and Federal Funds

71 / Homeland Security and Emergency Services, Division of

Miscellaneous Notices/Hearings

73 / Notice of Abandoned Property Received by the State Comptroller

73 / Public Notice

Executive Orders

87 / Executive Order No. 178.1: Declaring a Disaster Emergency in the County of Rockland and

Continuing the Disaster Emergency in Dutchess, Putnam, Sullivan, and Westchester Counties.

Court Notices

89 / Rules of the Chief Administrator of the Courts

ULE MAKIN

ACTIVITIES

Each rule making is identiﬁed by an I.D. No., which consists

of 13 characters. For example, the I.D. No. AAM-01-96-

00001-E indicates the following:

AAM -the abbreviation to identify the adopting agency

01 -the State Register issue number

96 -the year

00001 -the Department of State number, assigned upon

receipt of notice.

E -Emergency Rule Making—permanent action

not intended (This character could also be: A

for Adoption; P for Proposed Rule Making; RP

for Revised Rule Making; EP for a combined

Emergency and Proposed Rule Making; EA for

an Emergency Rule Making that is permanent

and does not expire 90 days after ﬁling.)

Italics contained in text denote new material. Brackets

indicate material to be deleted.

Ofﬁce of Children and Family

Services

EMERGENCY/PROPOSED

RULE MAKING

NO HEARING(S) SCHEDULED

Group Size and Supervision Ratios in Legally-Exempt Child

Care Settings and Legally-Exempt Group Child Care Financial

Incentives

I.D. No. CFS-14-18-00003-EP

Filing No. 271

Filing Date: 2018-03-20

Effective Date: 2018-04-16

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-

cedure Act, NOTICE is hereby given of the following action:

Proposed Action: Amendment of sections 415.4 and 415.9 of Title 18

NYCRR.

Statutory authority: Social Services Law, sections 20(3)(d), 34(3)(f),

410(1) and 410-x(3)

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

public safety and general welfare.

Speciﬁc reasons underlying the ﬁnding of necessity: The Ofﬁce of Chil-

dren and Family Services (the Ofﬁce) has determined that immediate

adoption of these regulations on an emergency basis is necessary to better

protect the health, safety and welfare of children in legally-exempt group

child care settings throughout New York State and to comply with the

Child Care and Development Block Grant Act of 2014 (CCDBG). These

emergency regulations will set forth standards for group size and supervi-

sion ratios in legally-exempt group child care settings and offer caregivers

of legally-exempt group child care ﬁnancial incentives to develop health

care plans, have cardiopulmonary resuscitation (CPR) certiﬁed caregivers

onsite and for caregivers in these settings to have received additional an-

nual training.

CCDBG Section 658E(c)(2)(H) requires states to develop appropriate

child to provider ratios that address group size, limits for speciﬁc age

populations and the appropriate ratio between the number of children and

number of providers in terms of the age of children. Currently, there are no

regulatory standards for staff to child supervision ratios and maximum

group size requirements for legally-exempt group child care providers,

other than local building codes. The Ofﬁce was granted a waiver from the

United States Department of Health and Human Services Administration

for Children and Families with respect to these requirements until

September 30, 2017. The Ofﬁce requested an extension of this waiver on

August 31, 2017 and has received no ofﬁcial response.

Incentivizing the development of health care plans, having CPR certi-

ﬁed employees on site and additional training caregivers of legally-exempt

group child care will further enhance the health, safety and welfare of

children served in these settings.

Subject: Group size and supervision ratios in legally-exempt child care

settings and legally-exempt group child care ﬁnancial incentives.

Purpose: To establish group size and supervision ratios in legally-exempt

child care settings and ﬁnancial incentives.

Text of emergency/proposed rule: Subdivision (f) of section 415.4 of 18

NYCRR is amended to add a new paragraph (9) to read as follows:

(9) Additional health and safety requirements for caregivers of

legally-exempt group child care.

(i) Each enrolled legally-exempt group child care program must

meet and maintain the following minimum staff-to-child supervision ratios

and maximum group size requirements, unless a more stringent standard

is required by law:

(a) for three-year-old children:

(1) there must be one employee with a caregiving role for

every 20 children when engaged in activities where children will be seated

while working on a particular activity or skill;

(2) there must be one employee with a caregiving role for

every 10 children when children are not engaged in seated activities or

skills; and

(3) the maximum group size is 30 children.

(b) for four-year-old children:

(1) there must be one employee with a caregiving role for

every 20 children when engaged in activities where children will be seated

while working on a particular activity or skill;

(2) there must be one employee with a caregiving role for

every 12 children when children are not engaged in seated activities or

skills; and

(3) the maximum group size is 36 children.

(1) there must be one employee with a caregiving role for

every 25 children; and

(2) the maximum group size is 50 children.

(d) When children younger than ﬁve years of age are cared for

in mixed age groups, the staff-to-child supervision ratio and maximum

group size applicable to the youngest child in the group must be followed.

(ii) Group size refers to the number of children cared for together

as a unit. Group size is used to determine the minimum staff-to-child

supervision ratio based upon the age of the children in the group.

(iii) The ofﬁce and its designees, applicable social services district

and its designees, and the applicable legally-exempt caregiver enrollment

agency are authorized to inspect any legally-exempt group child care

program that is enrolled or applying for enrollment.

(iv) Child care assistance cannot be authorized for a child under

three years of age for child care provided in a legally-exempt group child

care program, except for:

(a) child care programs located on Federal property which are

operated in compliance with the applicable Federal laws and regulations

for such child care programs;

(b) child care programs located on tribal property which are

operated in compliance with the applicable tribal laws and regulations for

such child care programs; or

the school year but will turn three years of age on or before the applicable

calendar date for which a child must be at least ﬁve years of age to be

eligible for admission to school; such a child shall be considered three

years of age for the purposes of staff-to-child ratio and maximum group

size.

Subdivision (i) of section 415.9 of 18 NYCRR is amended to read as

follows:

(i) There may be multiple market rates for legally-exempt group child

care, the standard market rate, and the opportunity for an enhanced mar-

ket rate as provided in this subdivision.

(1) The standard market rate of payment for caregivers of legally-

exempt group child care is the actual cost of care up to 75 percent of the

applicable market rate for day care center providers as set forth in this

section.

(2) A social services district may establish one or both of the follow-

ing categories of enhanced rates for child care services provided by

legally-exempt group child care programs:

(i) A social services district may establish an enhanced market

rate for child care services provided by eligible legally-exempt group child

care programs up to 81 percent of the applicable market rate for day care

center providers if:

(a) the program prepares a health care plan that meets the spec-

iﬁcations of paragraph (2) of subdivision (c) of section 418-1.11 of this

Title; and

(b) the program has at least one employee with a caregiving

role in each classroom during the program’s operating hours who holds a

valid certiﬁcate in cardio-pulmonary resuscitation (CPR), appropriate to

the ages of the children in the classroom.

(ii) A social services district may establish an enhanced market

rate for child care services provided by eligible legally-exempt group child

care programs up to 81 percent of the applicable market rate for day care

center providers, if:

(a) the caregiver of the legally-exempt group child care program

completes the Health and Safety: Competencies in Child Care for Day

Care Center, School-Age Child Care, and Enrolled Legally Exempt Group

Program Directors course or other course as approved by the ofﬁce, and a

minimum of 15 ﬁfteen hours of training annually in areas approved by the

ofﬁce; and

(b) each employee with a caregiving role at the legally-exempt

group child care program completes a minimum of ﬁve hours of training

annually in the areas approved by the ofﬁce, in addition to the training

required by subdivision (f) of section 415.4 of this part.

(3) When a social services district establishes an enhanced market

rate for child care services provided by eligible legally-exempt group child

care programs in accordance with subparagraphs (i) and (ii) of paragraph

(2) of this subdivision, the district may pay up to 87 percent of the ap-

plicable market rate for day care centers when all requirements of both

subparagraphs are met.

(4) An enhanced market rate established pursuant to this subdivision

will only be available to those legally-exempt group child care programs

that have submitted documentation to the applicable legally-exempt

caregiver enrollment agency verifying compliance with:

(i) the requirements set forth in this subdivision required to qualify

for the enhanced rate; and;

(ii) all applicable health and safety requirements set forth in

subdivision (f) of section 415.4 of this part.

(5) The applicable social services district and its designees, or ap-

plicable legally-exempt caregiver enrollment agency shall inspect any

legally-exempt group child care program that requests or receives an

enhanced market rate pursuant to this subdivision.

(6) The social services district must indicate in the district’s consoli-

dated services plan or integrated county plan the percentage and category

of any enhanced market rate it will provide for child care services provided

by eligible legally-exempt group child care programs.

(7) A legally-exempt group child care program may receive an

enhanced market rate pursuant to this subdivision and one or more dif-

ferential rates pursuant to this section, provided however, that the total

payment made to a legally-exempt group child care program must not

exceed either 100 percent of the applicable market rate for day care

centers as set forth in this section, or the actual cost of care, whichever is

less.

This notice is intended: to serve as both a notice of emergency adoption

and a notice of proposed rule making. The emergency rule will expire

June 17, 2018.

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

from: Leslie Robinson, Senior Attorney, Ofﬁce of Children and Family

Services, 52 Washington Street, Rensselaer, New York 12144, (518) 474-

3333, email: [email protected].gov

Data, views or arguments may be submitted to: Same as above.

Public comment will be received until: 60 days after publication of this

notice.

Regulatory Impact Statement

1. Statutory authority:

Section 20(3)(d) of the Social Services Law (SSL) authorizes the Com-

missioner of the Ofﬁce of Children and Family Services (the Ofﬁce) to es-

tablish rules, regulations, and policies to carry out the Ofﬁce’s powers and

duties under the SSL.

Section 34(3)(f) of the SSL authorizes the Commissioner of the Ofﬁce

to establish regulations for the administration of public assistance and care

within the State.

Section 410(1) of the SSL authorizes a social services ofﬁcial of a

county, city or town to provide day care for children at public expense and

authorizes the Ofﬁce to establish criteria for when such day care is to be

provided.

Section 410-x(3) of the SSL requires the Ofﬁce to establish in regula-

tion minimum health and safety standards that must be met by child care

providers, funded under the New York State Child Care Block Grant, not

required to be licensed or registered under section 390 of the SSL or to be

permitted under the administrative code of the City of New York.

The federal Child Care and Development Block Grant Act (CCDBG)

Section 658E(c)(2)(H) requires states to develop appropriate child to

provider ratios that address group size, limits for speciﬁc age populations

and the appropriate ratio between the number of children and number of

providers in terms of the age of children.

2. Legislative objectives:

The Ofﬁce’s objective with this rule making is to comply with federal

law and enhance the health, safety and welfare of children in legally-

exempt group child care throughout New York State. These regulations

support the underlying objectives of sections 410-x(3) of the SSL to

protect the health, safety and welfare of children in child care settings.

3. Needs and beneﬁts:

These regulations set forth standards for group size and supervision

ratios in legally-exempt group child care setting and offer caregivers of

legally-exempt group child care ﬁnancial incentives to have cardiopulmo-

nary resuscitation (CPR) trained employees onsite, develop and maintain

a health care plan for the program and for caregivers of children to

undertake additional annual training.

These regulations are needed on an emergency basis for compliance

with federal law and to promote the quality of care provided to children in

legally-exempt group child care settings and improve the health, safety

and welfare of children in such settings.

CCDBG Section 658E(c)(2)(H) requires states to develop appropriate

child to provider ratios that address group size, limits for speciﬁc age

populations and the appropriate ratio between the number of children and

number of providers in terms of the age of children receiving subsidized

care. Currently, there are no regulatory standards for staff to child supervi-

sion ratios and maximum group size requirements for legally-exempt

group child care providers, other than local building codes. The Ofﬁce

was granted a waiver by the federal Administration for Children and Fam-

ilies with respect to these requirements until September 30, 2017. The Of-

ﬁce requested an extension of this waiver on August 31, 2017 and has

received no ofﬁcial response.

Moreover, allowing caregivers legally-exempt group child care to earn

enhanced payment rates in exchange for having CPR trained caregivers

onsite, developing and maintain a health care plan for the program and for

caregivers of children to undertake additional annual training promotes

the health, safety and well-being of children being cared for in legally-

exempt group settings.

4. Costs:

Prior to developing the proposed group size and ratio standard, the Of-

ﬁce collected extensive stakeholder input and developed the standards in a

way to minimize a detrimental impact on access to child care and avoid

undue costs to caregivers of legally-exempt group child care. The supervi-

sion ratios prescribed are largely based on Article 43 of the New York City

Health Code. A large number of caregivers of legally-exempt group child

care are already required to comply with the supervision ratios, therefore

the Ofﬁce is not anticipating additional costs for those caregivers.

5. Local government mandates:

The emergency regulations impose no new mandates on local

governments.

NYS Register/April 4, 2018Rule Making Activities

6. Paperwork:

Caregivers of legally-exempt group child care will have to keep a rec-

ord of compliance with the new training standards to qualify for the

enhanced payment rates, as they are required to do with the current train-

ing standards.

7. Duplication:

The new requirements do not duplicate any existing State or federal

requirements.

8. Federal standards:

The regulations are consistent with CCDBG, which requires the Ofﬁce

to establish supervision ratios and set maximum group sizes.

9. Compliance schedule:

The regulations are effective on April 16, 2018, as the federal require-

ment is already in effect, and New York may be penalized if it cannot

demonstrate compliance with the requirements of CCDBG.

10. Alternative approaches:

No alternative approaches were considered.

Regulatory Flexibility Analysis

1. Effect on small businesses and local governments:

It is anticipated that the groups size and supervision ratio requirements

will have a minimal impact, if any on small business and local

governments.

Prior to developing the proposed group size and supervision ratio stan-

dards, the Ofﬁce of Children and Family Services (the Ofﬁce) collected

extensive stakeholder input and developed the standards in a way to mini-

mize a detrimental impact on access to child care and avoid undue costs to

legally-exempt group child care providers that are small businesses.

The Ofﬁce does not expect this rulemaking to have a detrimental impact

on local governments with respect to the enhanced payment rates because

the option to award the enhanced payment rates is permissive for local

governments.

2. Compliance requirements:

Caregivers of legally-exempt group child care will be required to ad-

here to the group-size supervision ratios set forth in the emergency

regulations. In order to qualify for an enhanced payment rate, caregivers

of legally-exempt group child care will be required to undertake additional

health and safety measures as provided for in the rule.

3. Professional services:

No new professional services are required by small businesses or local

governments to comply with this change.

4. Compliance costs:

It is expected that there will be minimal costs, if any, associated with

compliance with these rules. Prior to developing the proposed group size

and supervision ratio standards, the Ofﬁce collected extensive stakeholder

input and developed the standards in a way to minimize a detrimental

impact on access to child care and avoid undue costs to small businesses.

The option to award the enhanced payment rates is permissive for local

governments and therefore does not mandate new costs.

5. Economic and technological feasibility:

No new economic or technology requirements for small business or lo-

cal governments are expected.

6. Minimizing adverse impact:

This regulatory change is not expected to have an adverse impact on

small business or local governments.

7. Small business and local government participation:

In the development of the 2016-2018 Child Care and Development

Fund Plan, the Ofﬁce held three regional public hearings, in which require-

ments were presented to child day care providers and local social services

districts and input was gathered. Additionally, the Ofﬁce collected

stakeholder input in developing the group size and staff to child ratio

requirements that this rule creates.

Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas:

The emergency regulations will potentially affect caregivers of legally-

exempt group child care in all 44 rural areas of the State.

2. Reporting, recordkeeping, and other compliance requirements and

professional services:

Caregivers of legally-exempt group child care will be required to ad-

here to the group size limitations and supervision ratios set forth in the

emergency regulations. In order to qualify for the enhanced rate payments,

caregivers of legally-exempt group child care will be required to maintain

documentation of a health care plan, cardio-pulmonary resuscitation train-

ing certiﬁcation and additional training requirements.

3. Costs:

Prior to developing the proposed group size and supervision ratio stan-

dards, the Ofﬁce of Children and Family Services (the Ofﬁce) collected

stakeholder input and developed the standards in a way to minimize a

detrimental impact on access to child care and avoid undue costs to

caregivers of legally-exempt group child care.

4. Minimizing adverse impacts:

Prior to developing the proposed group size and supervision ratio stan-

dards, the Ofﬁce collected extensive stakeholder input and developed the

standards in a way to minimize a detrimental impact on access to child

care and avoid undue costs to caregivers of legally-exempt group child

care.

5. Rural area participation:

In the development of the 2016-2018 Child Care and Development

Fund Plan, the Ofﬁce held three regional public hearings, in which the

federal training requirements were presented to child day care providers

and local social services districts.

Job Impact Statement

Section 201-a of the State Administrative Procedures Act requires a job

impact statement to be ﬁled if proposed regulations will have an adverse

impact on jobs and employment opportunities in the State.

It is not anticipated the regulations will have a signiﬁcantly detrimental

impact on jobs and employment opportunities for caregivers of legally-

exempt group child care. The regulations are designed to provide for the

health, safety and welfare of children in care and to comply with federal

law.

Department of Environmental

Conservation

REVISED RULE MAKING

NO HEARING(S) SCHEDULED

Revisions to the Regulations that Implement the State

Environmental Quality Review Act

I.D. No. ENV-06-17-00001-RP

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-

cedure Act, NOTICE is hereby given of the following revised rule:

Proposed Action: Amendment of Part 617 of Title 6 NYCRR.

Statutory authority: Environmental Conservation Law, section 8-0113

Subject: Revisions to the regulations that implement the State Environ-

mental Quality Review Act.

Purpose: Updating the regulations that implement the State Environmental

Quality Review Act.

Substance of revised rule (Full text is posted at the following State

website: http://www.dec.ny.gov/permits/83389.html): The 2017 proposed

amendments to the State Environmental Quality Review Act (SEQR)

regulations, as revised in March 2018, would serve to help modernize the

SEQR process. The amendments are the Department’s ﬁrst signiﬁcant

update to the SEQR regulations since 1995. They are among the steps that

the Department has taken to modernize the SEQR process that includes

the new environmental assessment forms along with the creation of

workbooks and a spatial data platform on DEC’s website (EAF Mapper).

The Department’s proposed changes reduce the number of minor projects

and routine governmental decisions that are subject to SEQR by adding

them to the statewide list of actions that are exempt from further review

under SEQR (“Type II list of actions”). Some examples of new Type II ac-

tions include the following: Retroﬁtting of a structure to incorporate green

infrastructure practices; installation of solar energy arrays on sanitary

landﬁlls and other sites; certain acquisitions and dedication of parkland;

transfers of land for one, two and three family housing; and construction

and operation of an anaerobic digester at a municipal solid waste landﬁll.

The amendments would also modify certain thresholds in the Type I list of

actions (actions deemed more likely to require the preparation of an

environmental impact statement (EIS) (see 6 NYCRR 617.4); make scop-

ing of environmental impact statements (EISs) mandatory (scoping is now

optional) except for supplements to EISs; and more precisely deﬁne and

tighten the acceptance procedures for draft EISs. The Department is also

proposing an amendment to section 617.10 of 6 NYCRR (generic

environmental impact statements or “GEIS”) that would clarify the ability

of a lead agency to deny an action for which it has prepared a GEIS.

Finally, the Department is proposing rules to implement the statutory EIS

on the web requirement (Chapter 641 of the Laws of 2005) along with a

number of other changes to encourage the electronic ﬁling of EISs (see

Express Terms, 6 NYCRR section 617.12) and changes to 617.13 to add

greater transparency to consulting costs when a lead agency engages

private consulting ﬁrms and charges the costs back to project sponsors.

NYS Register/April 4, 2018 Rule Making Activities

This rulemaking was proposed on February 8, 2017 in the New York

State Register. The Department is now issuing a notice of revised

rulemaking. Revisions to the proposal are summarized in the Summary of

Assessment of Public Comment and speciﬁcally identiﬁed in the revised

draft generic environmental impact statement or “R-DGEIS” posted on

the Department’s website at the following address: http://www.dec.ny.gov/

permits/83389.html. The Department is seeking comments on the revi-

sions noted.

Also, the Department has modiﬁed the environmental assessment forms

(6 NYCRR § 617.20, appendices A and B) so they reﬂect the changes

proposed for the Type I list of actions and properties located substantially

contiguous to properties listed on the National or State registers of historic

places as well as properties determined to be eligible for listing on the

State Register of Historic Places. The forms also contain some additional

minor changes and corrections.

The full text of the revised amendments is posted on the Department’s

website at http://www.dec.ny.gov/permits/83389.html. The Department

has also prepared (and posted on its website in the same location) a

Revised DGEIS or “R-DGEIS” that, among other things, assesses the

impact of the proposal and revisions on the environment. The revised

DGEIS is combined with the regulatory impact statements required by the

State Administrative Procedure Act.

Revised rule compared with proposed rule: Substantial revisions were

made in sections 617.2, 617.5, 617.6, 617.8, 617.9 and 617.20.

Text of revised proposed rule and any required statements and analyses

may be obtained from James Eldred, Environmental Analyst, Division of

Environmental Permits, Department of Environmental Conservation, 625

Broadway, Albany, New York 12233-1750, (518) 402-9167, email:

[email protected].gov

Data, views or arguments may be submitted to: Same as above.

Public comment will be received until: 30 days after publication of this

notice.

Summary of Revised Regulatory Impact Statement (Full text is posted at

the following State website: http://www.dec.ny.gov/permits/83389.html):

The Department’s statutory authority to amend Part 617 is in Environ-

mental Conservation Law (ECL) § 8-0113, which authorizes the Depart-

ment, through the Commissioner, to adopt rules and regulations to imple-

ment the State Environmental Quality Review Act (SEQR).

The purpose of the proposed amendments to Part 617 is to modernize

and improve the SEQR process without sacriﬁcing meaningful environ-

mental review. The proposed changes build on regulatory changes from

past SEQR rulemakings, namely the 1995 amendments (effective January

1, 1996) to the SEQR regulations (which supplemented the Type II list and

established a more detailed scoping process for environmental impact

statements, among other changes) and on the rulemaking that updated the

environmental assessment forms and implemented the new electronic

forms, which became effective on October 7, 2013.

The last major amendments to the SEQR regulations occurred over two

decades ago. This rule making is intended to update the SEQR regulations

with additional Type II actions, i.e., adding more actions to the list of ac-

tions not subject to further review under SEQR, and with other important

changes more fully described in the express terms and accompanying

environmental impact statement.

The Department has also proposed a provision to clarify that an

environmental impact statement, where relevant, should include a discus-

sion of measures to avoid or reduce both an action’s environmental

impacts and vulnerability from the effects of climate change such as sea

level rise and ﬂooding.

The accompanying “revised draft environmental impact statement” or

“R-DGEIS” contains a speciﬁc discussion of objectives and beneﬁts for

each proposed change to the SEQR regulations.

Because SEQR is a law that requires compliance by government agen-

cies, any effect on the regulated public is indirect. Further, in most cases,

the proposals, if adopted, would arguably reduce costs through the cre-

ation of additional Type II actions and further streamlining of the EIS

process. This is the agency’s overall best estimate; however, the economic

impact of the amendments to SEQR is impossible to quantify.

Except for the small change to the Type I rule (which lowers the

thresholds for when a residential subdivision would classiﬁed as a Type I

action) and the proposed change to section 617.9 (regarding sea level rise

and storm-impact analysis), the changes streamline the regulations, which

reduces costs to regulated parties. For example, the additional Type II ac-

tions would no longer be subject to review under SEQR. Mandatory scop-

ing will help insure that environmental issues are considered early on

rather than at the end of the process after a project sponsor has already

spent large sums of money on moving an application forward. On the

other hand, reducing the thresholds for Type I actions and subdivisions

may arguably raise costs for subdivision applicants, though there is no

way to measure the effect since some of the subdivisions effected by the

new proposed rule would be Type I on account of other thresholds and the

Type I requirement for coordinated review results in more efﬁciency of

review (which arguably has the effect of reducing costs). The proposed

rules in section 617.9 related to sea level rise and ﬂooding may arguably

increase costs for some project sponsors of developments that are located

in coastal and other ﬂood prone areas where the project requires prepara-

tion of an environmental impact statement. The additional costs would be

to assess, avoid or mitigate the impacts that may come about from sea

level rise or ﬂooding — which as recent storm events show would be a

cost-saver in the life cycle of the project and to governmental responders

should a major storm event impact the project.

State and local agencies may decrease their costs (as would project

sponsors) where the action involves one of the proposed Type II actions

(actions not subject to review under SEQR). State and local governments

may incur additional costs on account of mandatory scoping, though the

Department in response to public comment has excepted supplemental

EISs from the mandatory scoping requirement. This cost of mandatory

scoping is difﬁcult to measure, however, since scoping can decrease costs

later in the process by insuring that environmental issues are articulated at

an early stage in project review. The requirement was proposed as a re-

sponse to the wish of the regulated community that there should be more

certainty in the process.

Costs to the Department mainly involve staff time and resources to

promulgate these regulations and then to conduct training on them. The

Department already conducts scoping on most EISs where it is lead

agency. As with most regulatory amendments there will be some cost in

retraining people in the SEQR process as a result of this rulemaking. The

cost here is short term and minimal. The Department has maintained a

training and assistance program for those interested in receiving training

and those who have speciﬁc questions relating to implementation of the

law. This amendment would require that some additional staff time be

devoted to training but it would be a relatively small change from cur-

rently existing efforts.

There are no additional programs, services, duties or responsibilities

imposed by the rule upon any county, city, town, village, school district,

ﬁre district or other special district except to require mandatory scoping of

all environmental impact statements (where it is now optional). Statisti-

cally, there are very few environmental impact statements compared to ac-

tions that receive a negative declaration. The proposed regulations

otherwise reduce mandates by adding to the number of Type II actions

(which are not subject to further review under SEQR). The expansion of

the Type II provision for lot line adjustments (sometimes treated as a

subdivision or variance) would most likely reduce the regulatory workload

of zoning and planning boards. The requirement to look at sea level rise

and ﬂooding in a proper case is, at best, a minor mandate compared to the

consequences of not doing so.

With the addition of items to the list of Type II actions there will be a

reduction in the need for applicants and lead agencies to complete

environmental review forms. (It should be noted, however, that in 2013

the forms became electronic with links to GIS and are now quicker and

easier to complete than before). The amendments may, however, result in

lead agencies having to prepare more scoping documents because scoping

would be mandatory under the proposed new rules. Nonetheless, scoping

is only applicable where an environmental impact statement is required

and only in a small percentage of actions is an environmental impact state-

ment required. Scoping is, however, a long term time saver in that it al-

lows for early identiﬁcation of issues. There are no new or additional

recordkeeping requirements of a regulated party. An additional require-

ment is imposed for internet posting of draft scopes.

There is no duplication of other state or federal requirements. With

some of the Type II additions, the regulations are intended to reduce

duplication of SEQR review requirements with those carried out under

State land use enabling laws (e.g., reuse of existing buildings).

The time necessary to comply with the Part 617 regulatory amendments

is not substantial. Training will be necessary for those unfamiliar with

SEQR but for those familiar with the current regulations the amendments

should be easily understood and implemented. Any particular questions

will be answered by the Department in its assistance role to state and local

agencies and to the regulated public. The Department does anticipate

conducting general training on these amendments for those who may want

to participate, which would include in person and the preparation of web-

based training materials. Compliance is required on the effective date of

the regulation. The Department proposes that the amendments should take

effect approximately six months from the date their adoption is noticed in

the New York State Register. This postponement in the effective date is

expected to allow for the Department to conduct training and produce ex-

planatory materials before the rule takes effect.

Summary of Revised Regulatory Flexibility Analysis (Full text is posted

at the following State website: http://www.dec.ny.gov/permits/

83389.html):

Presently, any proposal, whether made by a business or local govern-

ment, that involves a discretionary decision by a government agency and

NYS Register/April 4, 2018Rule Making Activities

that may affect the environment, is subject to an assessment under the

State Environmental Quality Review Act (SEQR) — to determine whether

it may have a signiﬁcant impact on the environment, and, if so, the lead

agency must prepare an environmental impact statement. An exception

lies where that action or project has been categorically determined not to

be subject to environmental review (6 NYCRR 617.5[c]). The rulemaking

effects all local governments (as they are required to comply with SEQR

when approving or undertaking an action), and many small businesses, to

the extent they may seek approvals or governmental funding for actions

that may affect the environment. The actual effect on small businesses and

local governments is very contextual depending on the action that is under

consideration. Therefore, the proposed rules potentially effects all local

governments and some small businesses but mostly in a way that is bene-

ﬁcial to them.

The Department expects that the revised proposed rules would reduce

the cost of complying with SEQR because of the addition of a number of

Type II actions (actions that do not require the preparation of an environ-

mental impact statement) and proposed changes to the environmental

impact statement process that would streamline the regulatory decision

making process that is subject to SEQR. While a small number of large

scale subdivisions may change classiﬁcations (due to changes proposed to

the Type I list of actions contained in 6 NYCRR 617.4), from Unlisted to

Type I, that change is procedural. Applicants for large scale subdivisions

elevated to the Type I list would be required to complete the full EAF

instead of the short EAF and the review of such subdivisions would require

coordinated review. Type I actions are also deemed more likely to require

the preparation of an EIS. However, only about 200 EISs are prepared on

a yearly basis for tens of thousands of actions that are presumably the

subject of a negative declaration. The imposition of mandatory scoping for

EISs will mean more early work in the EIS process but statewide relatively

few EISs are prepared. Finally, language has been added to the list of top-

ics that an EIS may cover to insure that consideration is given to for the

vulnerability of development projects to ﬂooding and sea level rise on ac-

count of climate change. Particularly in coastal areas, this may require ad-

ditional analysis by local governments when they serve as lead agencies,

and by small businesses when they are project sponsors. It would be

speculative to predict the number of times a project sponsor and lead

agency must perform these analyses. Substantive assessment of these top-

ics has long-term beneﬁts, as the nation discovered following the recent

spate of hurricanes that have devastated coastal areas, e.g., “Superstorm”

Sandy. Planning for major storm events is common sense.

The Department expects that there would be little change, if any, in the

professional services that a small business or local government would

likely employ to comply with this rule. Currently, the professional ser-

vices that may be needed to prepare SEQR documents include a wide

range of technical expertise. Because of the proposed new Type II actions,

there may be a decrease in professional services since those actions would

no longer require further compliance with SEQR. However, such an effect

is difﬁcult to measure.

The additions to the list of Type II actions may result in the elimination

of time and expense for local governments and small business project

sponsors.

The proposed changes would also bring greater efﬁciency to the

environmental impact statement process by mandating scoping, creating

greater linkages between the determination of signiﬁcance and the scope

of the EIS. The new requirements serve to encourage lead agencies to

build on their prior analyses. The proposed regulations would also tighten

the rules on whether the lead agency can reject a draft EIS as inadequate.

While relatively few actions subject to SEQR (usually larger scale ones)

require the preparation of EISs, the business community may realize some

beneﬁt in compliance costs from the proposed new procedures that would

bring greater certainty to the EIS process. Compliance costs will otherwise

remain the same except as discussed above with respect to whether ad-

ditional professional services may be needed in some cases to timely

complete ﬁnal environmental impact statements.

In preparing the proposed regulatory changes, the Department held

numerous stakeholder meetings where individuals representing business

and local governments were asked to identify changes that could be made

to Part 617. Overall, these meetings were very well attended and the ex-

changes of ideas and proposals was extensive and exhaustive. The list of

individuals is attached as Appendix A to the revised draft environmental

impact statement. In the public comment period on the proposal, the

Department heard from hundreds of individuals and organizations. The

revisions are in response to public comment.

Revised Rural Area Flexibility Analysis

1. Types and estimated numbers of rural areas

The regulations are statewide and thus the rules would apply to all rural

areas as well as suburban and urban areas of the State.

2. Reporting, recordkeeping and other compliance requirements

There is no change from the existing rules except that a relatively small

number of additional larger-scale subdivisions that would not otherwise be

classiﬁed as Type I actions would now be classiﬁed at Type I and be subject

to the full environmental assessment form rather than the short form and

lead agencies would be required to conduct scoping in instances where

environmental impact statements will be completed.

3. Costs

The Department does not expect any additional costs to comply with

the new rules except as described in the Regulatory Flexibility Analysis

for Small Businesses and Local Governments.

4. Minimizing Adverse Impact

The proposed rules would not have an adverse impact on rural areas

since they have the overall effect of decreasing the regulatory burden and

making the SEQR process more efﬁcient or streamlined.

6. Rural area Participation

The Department held stakeholder meetings throughout the state. A ros-

ter of individuals who attended the meetings is contained in attachment A

to the revised draft generic environmental impact statement accompany-

ing the revised proposed rules. As indicated by the roster, meetings were

held in upstate locations including Albany and Buffalo. The roster of

persons attending the round table discussions included quite a few persons

located in rural areas of the State or who regularly work with rural

communities. The Department also issued a draft scope to the draft ge-

neric environmental impact statement, which was noticed in the Environ-

mental Notice Bulletin. Through that media, the Department solicited

comments from all parts of the state including rural areas. The Department

also received hundreds of written comments on the proposal following

four public hearings and three public informational sessions. The revisions

were the product of public comments.

Revised Job Impact Statement

The proposed amendments to the State Environmental Quality Review

Act (SEQR) regulations at 6 NYCRR Part 617 would have no impact on

existing or future jobs and employment opportunities as these are

procedural revisions to existing rules. The proposal to add categories of

Type II actions would constitute a reduction in regulatory burden. The

Type I changes are minor and will not affect development or employment.

The changes to the environmental impact statement process can be

expected to bring greater efﬁciency to the EIS process.

A Job Impact Statement is not submitted with this rulemaking proposal

because the proposal will not have a “substantial adverse impact on jobs

or employment opportunities,” which is deﬁned in the State Administra-

tive Procedure Act Section 201-a to mean “a decrease of more than one

hundred full-time annual jobs and employment opportunities, including

opportunities for self-employment, in the state, or the equivalent in part-

time or seasonal employment, which would be otherwise available to the

residents of the state in the two-year period commencing on the date the

rule takes effect.” The proposed changes to Part 617, which again are gen-

erally procedural in nature, are not expected to have any such effect and

most likely will not affect or impact jobs or employment opportunities.

Assessment of Public Comment

The Department received approximately 250 separate comments on the

proposed regulatory changes to the regulations that implement the State

Environmental Quality Review Act (SEQR). (These comments were addi-

tive or overlapped the comments that the Department received at the four

public hearings [Albany, New Paltz, Rochester and Hauppauge] and three

informational sessions [New Paltz, Rochester and Hauppauge] it held on

the proposal in 2017.) The full assessment of public comment can be found

in the revised draft generic environmental impact statement (R-DGEIS),

which is available on the Department’s website at the following address:

http://www.dec.ny.gov/permits/83389.html. The R-DGEIS contains a text

box in the summary that explains how to read the R-DGEIS to guide the

reader in understanding the proposed changes.

The largest block of comments concerned the Department’s proposed

additions or changes to the Type II list of actions (actions that do not

require further review under SEQR). To adopt an addition to the Statewide

Type II list, the Commissioner must ﬁnd that the action or category of ac-

tion would not have a signiﬁcant adverse impact on the environment. In

addition to the comments that supported some or all of the proposed Type

II additions, some commenters argued that one or more of the Department’s

proposals for Type II actions could have a signiﬁcant impact on the

environment depending on the context of the action or should have further

modifying language to prevent such effects from occurring. The Depart-

ment evaluated each of the proposed Type II actions against this criticism

and either modiﬁed the proposed Type II action or removed it from

consideration. Overall, in response to public comment, the Type II addi-

tions have been pared back.

The Department is no longer proposing a number of Type II actions

contained in the original proposal. The Type II for anaerobic digesters at

waste water treatment plants is no longer being considered based on

environmental justice concerns. The Type II for in-ﬁll development is also

NYS Register/April 4, 2018 Rule Making Activities

no longer being considered based on comments pointing out the difﬁculty

of deﬁning municipal centers or in-ﬁll areas on a state-wide level even

though the promotion of in-ﬁll development is environmentally beneﬁcial.

This particular Type II, while laudatory from a policy standpoint, is better

suited for adoption at the municipal level. The proposed Type II for reuse

of existing buildings is continued with some reﬁnements to the language

of the Type II. The Type II for co-location of cellular antennas is also no

longer being proposed based on a number of concerns described in the R-

DGEIS though from an environmental standpoint co-location is almost

always preferable over construction of new cellular towers. The proposed

Type II for small subdivisions is no longer proposed for a variety of

reasons set forth in the R-DGEIS though minor subdivisions are typically

the subject of a negative declaration. The Department is no longer propos-

ing certain deﬁnitions associated with the Type II actions that have been

discontinued (e.g., deﬁnition for municipal center). Other proposed Type

II actions have been modiﬁed based on public comments. The Department

has added “Superfund” sites (as fully set out in the revised regulations) to

the sites where placement of solar arrays would be a Type II action.

The second largest block of comments concerned the proposed rules to

streamline the environmental impact statement process. Many of the com-

menters criticized the Department’s proposal to bring more certainty to the

EIS process by a combination of making scoping mandatory and requiring

that lead agencies evaluate the completeness of the project sponsor’s draft

EIS based on the ﬁnal scope. The last provision, which is already set out in

the regulations, says that a project sponsor can respond to late ﬁled com-

ments as a response to comment in the ﬁnal EIS if they have not responded

to the comments in the draft EIS. Many commenters criticized these

changes by arguing that the public often ﬁnds out about a project after

scoping is complete and that leaving the project sponsor the option of only

responding to the comments in the ﬁnal EIS means that the public would

not ﬁnd out about a late ﬁled comment until the EIS is ﬁnalized. The exact

same concern was raised in the 1995 regulatory amendments to SEQR. In

point of fact, project sponsors usually like to address issues with a project

as soon as possible in the review process. Nonetheless, in response to the

comments, the Department proposes to modify the language of the regula-

tion currently in effect to say that a project sponsor must include the late

ﬁled comments as an appendix to the draft. The Department is seeking

public comment on this change as well as all other revisions from the orig-

inal proposal.

Finally, commenters pointed out that while the Department has

proposed to create a threshold for actions occurring substantially contigu-

ous to properties on the National Register of Historic Places in the Type I

list of actions to 25 percent of any other threshold in the Type I list and to

include properties determined to be eligible for listing on the National

the proposed change in the regulations. The Department now proposes to

do so and has included those minor typographic ﬁxes and clariﬁcations to

the environmental assessment forms. The revised forms are also available

on the Department’s website.

Department of Financial Services

NOTICE OF EXPIRATION

The following notice has expired and cannot be reconsidered un-

less the Department of Financial Services publishes a new notice of

proposed rule making in the NYS Register.

Continuing Care Retirement Communities

I.D. No. Proposed Expiration Date

DFS-11-17-00003-P March 15, 2017 March 15, 2018

Ofﬁce of Information Technology

Services

NOTICE OF ADOPTION

Implementing the Electronic Signatures and Records Act

I.D. No. ITS-52-17-00002-A

Filing No. 258

Filing Date: 2018-03-14

Effective Date: 2018-04-04

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-

cedure Act, NOTICE is hereby given of the following action:

Action taken: Amendment of sections 540.1-540.3 of Title 9 NYCRR.

Statutory authority: State Technology Law, sections 103, 303, 304, 305;

and Real Property Law, section 291-i

Subject: Implementing the Electronic Signatures and Records Act.

Purpose: Correcting outdated references to the name of ITS and the phys-

ical address of the Property Records Industry Association (PRIA).

Text or summary was published in the December 27, 2017 issue of the

Final rule as compared with last published rule: No changes.

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

from: Division of Legal Affairs, ITS, Empire State Plaza, PO Box 2062,

Albany, NY 12220-0062, (518) 473-5115, email: [email protected].gov

Additional matter required by statute: Pursuant to the requirements of the

State Environmental Quality Review Act, ITS, as lead agency, has

determined that the action described herein will have no effect on the

environment and an E.I.S. is not needed.

Assessment of Public Comment

The agency received no public comment.

NOTICE OF ADOPTION

Concerning State Agency Internet Posting of Application Forms

I.D. No. ITS-52-17-00003-A

Filing No. 260

Filing Date: 2018-03-14

Effective Date: 2018-04-04

PURSUANT TO THE PROVISIONS OF THE State Administrative Pro-

cedure Act, NOTICE is hereby given of the following action:

Action taken: Amendment of sections 552.1, 552.3(c), (d) and 552.5(a) of

Title 9 NYCRR.

Statutory authority: Executive Law, section 164-d; State Technology Law,

section 103

Subject: Concerning State Agency Internet posting of application forms.

Purpose: Correcting outdated references to the former name of ITS, and

the Governor’s Ofﬁce of Regulatory Reform (GORR).