PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of section 170.13 to Title 8 NYCRR.
Statutory authority:
Education Law, sections 101 (not subdivided), 207 (not subdivided) and 305(1) and (2) and 2576(5-b); and L. 2007, ch. 57, part B, section 9
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The proposed amendment is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007, to require maintenance of local effort by certain specified school districts.
Education Law section 2576(5-b) requires each school district in cities having a population of one hundred twenty-five thousand or more inhabitants and less than one million inhabitants to maintain their fiscal effort in support of education. The statute requires the Commissioner to establish by regulation the definition of state and private sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement, thus ensuring that the requirement pertains only to funds over which the cities have control.
The proposed rule was adopted at the July 25, 2007 Regents meeting as an emergency measure, effective July 31, 2007, in order to immediately establish a definition of “city funds” for purposes of determining the fiscal maintenance of effort requirement in Education Law section 2576(5-b), including state and private funding sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement, so that school districts subject to such requirement may timely align their budgets to comply with the statute's requirements for the 2007–2008 school year. A Notice of Proposed Rule Making was published in the State Register on August 8, 2007.
The proposed rule has been adopted as a permanent rule at the October 22–23, 2007 Regents meeting. Pursuant to the State Administrative Procedure Act section 203(1), the earliest the adopted rule can become effective is upon its publication in the State Register on November 14, 2007. However, the July emergency rule will expire on October 28, 2007, 90 days after its filing with the Department of State on July 31, 2007. A lapse in the rule's effectiveness could disrupt determinations of fiscal maintenance of effort pursuant to Education Law section 2576(5-b). A second emergency adoption is therefore necessary for the preservation of the general welfare to ensure that the emergency rule adopted at the July Regents meeting remains continuously in effect until the effective date of its adoption as a permanent rule.
Subject:
Fiscal maintenance of effort.
Purpose:
To define “city funds” for purposes of determining maintenance of effort in cities having a population of 125,000 or more inhabitants and less than 1,000,000 inhabitants pursuant to Education Law, section 2576(5-b), including State and private funding sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement.
Text of emergency rule:
Section 170.13 of the Regulations of the Commissioner of Education is added, effective October 29, 2007, as follows:
§ 170.13 Definition of “city funds” for purposes of determining maintenance of effort for cities having a population of one hundred twenty-five thousand or more inhabitants and less than one million inhabitants pursuant to Education Law section 2576(5-b).
For purposes of this section and Education Law section 2576(5-b), “city funds” shall mean funds of each city having a population of one hundred twenty-five thousand or more inhabitants and less than one million inhabitants derived from any source except:
(a) funds contained within the capital budget;
(b) funds from county sales tax revenues shared with such city;
(c) funds derived from any federal source; and
(d) funds derived from any state or private sources over which the city has no discretion, including:
(1) gifts for specific purposes;
(2) grants in aid for specific purposes; or
(3) insurance proceeds authorized pursuant to Education Law section 1718(2) in addition to that which has been previously budgeted.
This notice is intended
to serve only as a notice of emergency adoption. This agency intends to adopt the provisions of this emergency rule as a permanent rule, having previously published a notice of proposed rule making, I.D. No. EDU-32-07-00009-P, Issue of August 8, 2007. The emergency rule will expire December 27, 2007.
Text of emergency rule and any required statements and analyses may be obtained from:
Anne Marie Koschnick, Legal Assistant, Office of Counsel, Education Department, State Education Bldg., Rm. 148, Albany, NY 12234, (518) 473-8296, e-mail: legal@mail.nysed.gov
Regulatory Impact Statement
STATUTORY AUTHORITY:
Education Law section 101 continues the existence of the Education Department, with the Board of Regents as its head, and authorizes the Board of Regents to appoint the Commissioner of Education as the Chief Administrative Officer of the Department, which is charged with the general management and supervision of all public schools and the educational work of the State.
Education Law section 207 empowers the Regents and the Commissioner to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the Department.
Education Law section 305(1) and (2) provide that the Commissioner, as chief executive officer of the State system of education, shall have general supervision over all schools and institutions subject to the provisions of the Education Law, or any statute relating to education, and shall be responsible for executing all educational policies determined by the Regents.
Education Law section 2576(5-b), as added by section 9 of Part B of Chapter 57 of the Laws of 2007, requires each school district in cities having a population of one hundred twenty-five thousand or more inhabitants and less than one million inhabitants to maintain their fiscal effort in support of education. The statute requires the Commissioner to establish by regulation the definition of state and private sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement.
LEGISLATIVE OBJECTIVES:
The proposed rule is consistent with the authority conferred by the above statutes and is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007, by defining state and private sources over which the city has no discretion.
NEEDS AND BENEFITS:
The proposed rule is needed to implement the statutory requirements. The rule establishes a definition of “city funds” for purposes of determining the fiscal maintenance of effort requirement in Education Law section 2576(5-b), including state and private funding sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement, thus ensuring that the requirement pertains only to funds over which the cities have control.
State Education Department research on the maintenance of local effort in support of schools has documented that school districts tend to reduce local effort when they receive State Aid increases. Without a statutory requirement or formula structure that requires maintenance of local effort there is no way to ensure that State Aid increases provided for the purpose of increasing student achievement will result in additional programs and services for students, rather than tax relief or the funding of other city services.
COSTS:
a. Costs to State government: None.
b. Costs to local governments: None.
c. Costs to private, regulated parties: None.
d. Costs to the Education Department of implementation and continuing compliance: None.
The rule is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007, and does not impose any costs beyond those inherent in the statute. The rule establishes a definition of “city funds” for purposes of determining the fiscal maintenance of effort requirement in Education Law section 2576(5-b), including state and private funding sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement, thus ensuring that the requirement pertains only to funds over which the cities have control.
LOCAL GOVERNMENT MANDATES:
The proposed rule is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007, and does not impose any additional program, service, duty or responsibility on local governments. The rule establishes a definition of “city funds” for purposes of determining the fiscal maintenance of effort requirement in Education Law section 2576(5-b), including state and private funding sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement, thus ensuring that the requirement pertains only to funds over which the cities have control.
PAPERWORK:
The proposed rule is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007, and does not impose any reporting requirements beyond those inherent in the statute. The rule establishes a definition of “city funds” for purposes of determining the fiscal maintenance of effort requirement in Education Law section 2576(5-b), including state and private funding sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement, thus ensuring that the requirement pertains only to funds over which the cities have control. School districts will demonstrate compliance with the proposed rule through the submission of fiscal data submitted for the receipt of State aid.
DUPLICATION:
The proposed rule will not duplicate, overlap or conflict with any other State or federal statute or regulation, and is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007.
ALTERNATIVES:
There were no significant alternatives and none were considered. Education Law section 2576(5-b) requires the Commissioner to establish by regulation the definition of state and private sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the statute's maintenance of effort requirement, thus ensuring that the requirement pertains only to funds over which the cities have control.
FEDERAL STANDARDS:
The proposed rule is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007, and does not exceed any minimum federal standards. Federal maintenance of effort requirements exist for specific federal funding programs, but there are no substantive federal standards that are applicable to the use of state funds for education.
COMPLIANCE SCHEDULE:
The proposed rule is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007. The maintenance of effort requirements imposed on certain school districts are effective for school year 2007–08. School districts will submit data demonstrating they maintained their effort in relation to the prior school year in their annual financial reports filed with the State Education Department on September 1 of each year.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007, relating to the calculation of fiscal maintenance of effort requirements for certain city school districts, by defining funds from state and private sources over which the city has no discretion. The proposed rule does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed rule that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.
Local Governments:
EFFECT OF RULE:
The proposed rule applies to those four school districts in the State that have been determined to meet the statutory requirements in Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007, necessitating compliance with the statute's maintenance of effort requirements. These are the large city school districts of Rochester, Syracuse, Buffalo and Yonkers.
COMPLIANCE REQUIREMENTS:
The proposed rule is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007, and does not impose any additional reporting, recordkeeping or other compliance requirements on affected school districts. The rule establishes a definition of “city funds” for purposes of determining the fiscal maintenance of effort requirement in Education Law section 2576(5-b), including state and private funding sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement, thus ensuring that the requirement pertains only to funds over which the cities have control.
PROFESSIONAL SERVICES:
Compliance with the proposed rule can be incorporated in existing district procedures for budgeting, accounting and reporting and does not necessitate any additional professional services.
COMPLIANCE COSTS:
The rule is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007, and does not impose any costs beyond those inherent in the statute. The rule establishes a definition of “city funds” for purposes of determining the fiscal maintenance of effort requirement in Education Law section 2576(5-b), including state and private funding sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement, thus ensuring that the requirement pertains only to funds over which the cities have control.
ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed rule is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007, and does not impose any additional technological requirements or costs on affected school districts. The rule merely establishes a definition of “city funds” for purposes of determining the fiscal maintenance of effort requirement in Education Law section 2576(5-b), including state and private funding sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement, thus ensuring that the requirement pertains only to funds over which the cities have control.
MINIMIZING ADVERSE IMPACT:
Education Law section 2576(5-b), as added by section 9 of Part B of Chapter 57 of the Laws of 2007, requires each school district in cities having a population of one hundred twenty-five thousand or more inhabitants and less than one million inhabitants to maintain their fiscal effort in support of education. The statute requires the Commissioner to establish by regulation the definition of state and private sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement.
The proposed rule is necessary to implement Education Law section 2576(5-b) and is applicable to the four large city school districts of Rochester, Syracuse, Buffalo and Yonkers. Consequently, the major provisions of the proposed rule are statutorily imposed and it is not feasible to establish differing compliance or reporting requirements or timetables or to exempt affected school districts from coverage by the rule. The development of the proposed rule took into account Department consultation with the large city districts over the years.
LOCAL GOVERNMENT PARTICIPATION:
Guidance memos to the regulated parties that are local governments - school districts and their component schools - were sent out from the Senior Deputy Commissioner for P-16 education of the State Education Department on April 4, and April 9, 2007. In these two documents, the Education Department sought the input, impact, questions and feedback of the proposed rule on districts as well as communicating in broad terms, the nature of the requirement. Comments on the proposed amendment were solicited from school districts through the offices of the district superintendents of each supervisory district in the State.
Rural Area Flexibility Analysis
The proposed rule is necessary to implement Education Law section 2576(5-b), as added by section 9 of Part B of Chapter 57 of the Laws of 2007, which requires each school district in cities having a population of one hundred twenty-five thousand or more inhabitants and less than one million inhabitants to maintain their fiscal effort in support of education, and further requires the Commissioner to establish by regulation the definition of state and private sources over which the city has no discretion and which are to be excluded from the calculation of city funds subject to the maintenance of effort requirement.
Accordingly, the proposed rule applies to the large city school districts of Rochester, Syracuse, Buffalo and Yonkers, and does not apply to any school districts located in the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 per square mile or less. The proposed rule does not impose any adverse economic impact, reporting, record keeping or any other compliance requirements on public or private entities in rural areas. Because it is evident from the nature of the proposed rule that it does not affect rural areas, no further measures were needed to ascertain that fact and none were taken. Accordingly, a rural area flexibility analysis is not required and one has not been prepared.
Job Impact Statement
The proposed amendment is necessary to implement Education Law section 2576(5-b), as added by Chapter 57 of the Laws of 2007, relating to the calculation of fiscal maintenance of effort requirements for certain city school districts, by defining funds from state and private sources over which the city has no discretion. The proposed amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the rule that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.
