EDU-32-07-00011-E State Aid for Public Library Construction

11/14/07 N.Y. St. Reg. EDU-32-07-00011-E

NEW YORK STATE REGISTER

VOLUME XXIX, ISSUE 46

November 14, 2007

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

EMERGENCY RULE MAKING

 

I.D No. EDU-32-07-00011-E

Filing No. 1186

Filing Date. Oct. 29, 2007

Effective Date. Oct. 29, 2007

State Aid for Public Library Construction

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

Action taken:

Amendment of section 90.12 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 207 (not subdivided), 215 (not subdivided) and 273(5); and L. 2007, ch. 53, section 1, ch. 57, part B, section 4

Finding of necessity for emergency rule:

Preservation of general welfare.

Specific reasons underlying the finding of necessity:

The proposed amendment is necessary to ensure that the Commissioner's Regulations comply with recent amendments made to Education Law section 273-a by Chapter 57 of the Laws of 2007. Chapter 57 of the Laws of 2007 amended Education Law section 273-a to change the payment schedule for State aid for public library construction and renovation projects, appropriated pursuant to Chapter 53 of the Laws of 2007, to a 50/40/10 percent basis from a 90/10 percent basis. Chapter 53 of the Laws of 2007 appropriated $14 Million for public library construction and renovation projects for State fiscal year 2007–2008.

The proposed amendment was adopted at the July 25, 2007 Regents meeting as an emergency measure, effective July 31, 2007, in order to ensure that the Commissioner's Regulations comply with Education Law section 273-a, as recently amended, and to ensure the timely implementation of public library construction and renovation projects in State fiscal year 2007–2008. A Notice of Proposed Rule Making was published in the State Register on August 8, 2007.

The proposed amendment was adopted as a permanent rule at the October 22–23, 2007 Regents meeting. Pursuant to the State Administrative Procedure Act, the earliest effective date of the adopted rule, if adopted at the October Regents meeting, is November 14, 2007, the date of publication of the Notice of Adoption in the State Register.

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 delay implementation of public library construction projects until well into the 2007–2008 State fiscal year. Therefore, a second emergency adoption of the proposed amendment is necessary for the preservation of the general welfare in order to ensure that the emergency rule adopted at the July Regents meeting remains continuously in effect until the permanent rule takes effect on November 15, 2007.

Subject:

State aid for public library construction and renovation projects.

Purpose:

To prescribe eligibility requirements and criteria for applications for State aid for library construction and renovation projects, and conform the commissioner's regulations to Education Law, section 273-a, as recently amended by L. 2007, ch. 57.

Text of emergency rule:

1. Paragraph (5) of subdivision (a) of section 90.12 of the Regulations of the Commissioner of Education is amended, effective October 29, 2007, as follows:

(5) Renovation means the overall improvement or conversion of an existing building, exclusive of routine maintenance, resulting in increased operational efficiency and economy.

2. Subdivision (c) of section 90.12 of the Regulations of the Commissioner of Education is amended, effective October 29, 2007, as follows:

(c) Content of applications. Each application shall assure that:

(1) …

(2) the nonstate share of the cost of the project is or will be available[, that];

(3) the project has been started or will begin within 180 days after approval by the commissioner[,] and [that the project] will be completed promptly and in accordance with the application;

[(3)] (4) the approved project will be conducted in accordance with all applicable Federal, State, and local laws and regulations;

[(4)] (5) the project has not been completed prior to the date of the application;

[(5) for all new projects or] (6) where [otherwise] required by law, competitive bidding procedures will be followed; and

[(6)] (7) the premises constructed, acquired, renovated, rehabilitated or leased will be usable for library purposes for at least [20] 10 years from completion of the project.

3. Paragraph (1) of subdivision (e) of section 90.12 of the Regulations of the Commissioner of Education is amended, effective October 29, 2007, as follows:

(1) Costs eligible for approval shall include:

(i) …

(ii) …

(iii) …

(iv) purchase and installation of initial equipment and furnishings as a project component of subparagraphs (i), (ii) or (iii) of this paragraph;

(v) site preparation and grading as a project component of subparagraphs (i), (ii) or (iii) of this paragraph;

(vi) replacement of a library building's mechanicals, including, but not limited to, heating, ventilation, air conditioning, cooling, electrical, and plumbing systems;

(vii) replacement of permanent components of a library building, including, but not limited to, windows, doors, roofs, and lighting systems;

(viii) supervision of the construction, renovation or rehabilitation; and

(ix) such other costs as may be approved by the commissioner.

4. Paragraph (2) of subdivision (e) of section 90.12 of the Regulations of the Commissioner of Education is amended, effective October 29, 2007, as follows:

(2) Costs ineligible for approval shall include, but shall not be limited to:

(i) …

(ii) …

(iii) …

(iv) purchase of books and other library materials; [and]

(v) landscaping; and

(vi) routine maintenance.

5. Subdivision (f) of section 90.12 of the Regulations of the Commissioner of Education is amended, effective October 29, 2007, as follows:

(f) Schedule of payment of State aid for library construction. (1) [Ninety-percent] Fifty-percent payment of awarded State aid for approved costs of the project will be made after notification of applicant by the commissioner of approval for funding.

(2) Forty percent of such aid shall be payable in the State fiscal year following the year in which funding was provided.

(3) The 10-percent final payment will be made after submission of satisfactory evidence that the project has been completed in accordance with the terms of the approved application [according to the approved application and has been accepted by the applicant].

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-32-07-00011-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, [phone], e-mail: [e-mail]

Regulatory Impact Statement

1. STATUTORY AUTHORITY:

Education Law section 207 empowers the Board of Regents and the Commissioner of Education to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the State Education Department by Law.

Education Law section 215 authorizes the Board of Regents, the Commissioner of Education, or their representatives, to visit, examine and inspect schools or institutions under the educational supervision of the State and other institutions admitted to the University of the State of New York, as defined in Education Law section 214, and to require, as often as desired, duly verified reports indicating the results of such examinations and inspections in a form prescribed by the Board of Regents and the Commissioner of Education.

Education Law section 273-a provides for State aid for projects for the acquisition, construction, renovation and rehabilitation of buildings of public libraries and public library systems chartered by the Regents of the State of New York or established by act of the Legislature, upon approval by the Commissioner of Education. Subdivision (5) of section 273-a authorizes the Commissioner of Education to adopt rules and regulations as are necessary to carry out the purposes and provisions of this section.

Section 1 of Chapter 53 of the Laws of 2007 appropriates $14 Million for public library construction and renovation projects approved pursuant to Education Law section 273-a.

Section 4 of Part B of Chapter 57 of the Laws of 2007 amended Education Law section 273-a to change the payment schedule for State aid for library construction and renovation projects from a 90/10 percent basis to a 50/40/10 percent basis. 50 percent of State aid shall be payable to each public library system or public library upon approval of the application. 40 percent shall be payable in the next State fiscal year. The remaining 10 percent shall be payable upon project completion.

2. LEGISLATIVE OBJECTIVES:

The proposed amendment is consistent with the authority conferred by the above statutes and is necessary to implement Education Law section 273-a, as amended by Chapter 57 of the Laws of 2007.

3. NEEDS AND BENEFITS:

The proposed amendment is necessary to conform the Commissioner's Regulations to recent changes made to Education Law section 273-a by Chapter 57 of the Laws of 2007, so that the payment schedule of State aid for library construction is changed to a 50/40/10 percent basis from a 90/10 percent basis and further, so that funds for public library construction and renovation projects, appropriated pursuant to Chapter 53 of the Laws of 2007, are timely awarded, pursuant to statutory requirements, to eligible public libraries and public library systems. Chapter 53 of the Laws of 2007 appropriates $14 Million for public library construction and renovation projects.

4. COSTS:

(a) Costs to the State: none.

(b) Costs to local governments: none.

(c) Costs to private, regulated parties: none.

The proposed amendment relates to State aid for public library systems and public libraries and does not affect private parties.

(d) Costs to regulating agency for implementation and continued administration of this rule: none.

The proposed amendment merely conforms the Commissioner's Regulations to Education Law section 273-a, as amended by Chapter 57 of the Laws of 2007, and does not impose any additional costs on the State, local governments, or the State Education Department.

5. LOCAL GOVERNMENT MANDATES:

The proposed amendment concerns applications for State aid for library construction and applies to all public library systems and public libraries seeking such aid, including public libraries established by local governments, but does not directly impose any additional program, service, duty or responsibility upon any county, city, town, village, school district, fire district, or other special district. The proposed amendment is needed to conform the Commissioner's Regulations to recent changes made to Education Law section 273-a, as discussed in the Needs and Benefits section above.

6. PAPERWORK:

The proposed amendment is necessary to conform the Commissioner's Regulations to Education Law section 273-a, as amended by Chapter 57 of the laws of 2007, and does not impose any additional paperwork requirements upon the State beyond those inherent in the statute. The proposed amendment substitutes a 50/40/10 percent payment schedule for a 90/10 percent payment schedule, which will result in additional paperwork for public library systems and public libraries in order to draw down their funds.

7. DUPLICATION:

The proposed amendment duplicates no existing State or federal requirements and is necessary to conform the Commissioner's Regulations to recent amendments made to Education Law section 273-a by Chapter 57 of the Laws of 2007.

8. ALTERNATIVES:

There were no significant alternatives to the proposed amendment and none were considered.

9. FEDERAL STANDARDS:

The proposed amendment does not exceed any minimum standard of the federal government.

10. COMPLIANCE SCHEDULE:

It is anticipated that public library systems and public libraries will be able to achieve compliance with these changes within two weeks from the adoption of the amended rule.

Regulatory Flexibility Analysis

(a) Small Businesses:

The proposed amendment concerns applications for State aid for library construction by public library systems and public libraries and does not impose any adverse economic impact, or any adverse reporting, record keeping or any other compliance requirements on small businesses. Because it is evident from the nature of the proposed amendment 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.

(b) Local Governments:

EFFECT OF RULE:

The proposed rule applies to public library systems and public libraries who seek State aid for library construction, including 395 public libraries established by local governments.

COMPLIANCE REQUIREMENTS:

The proposed rule applies to public library systems and public libraries who seek State aid for library construction, including those public libraries established by local governments, but does not directly impose any compliance requirements on local governments.

The proposed amendment is needed to conform the Commissioner's Regulations to recent changes made to Education Law section 273-a by Chapter 57 of the Laws of 2007, so that the payment schedule of State aid for library construction is changed to a 50/40/10 percent basis from a 90/10 percent basis and further, so that funds for public library construction and renovation projects, appropriated pursuant to Chapter 53 of the Laws of 2007, are timely awarded, pursuant to statutory requirements, to eligible public library systems and public libraries. Chapter 53 of the Laws of 2007 appropriates $14 Million for public library construction and renovation projects.

PROFESSIONAL SERVICES:

The proposed amendment does not impose any additional professional services requirements.

COMPLIANCE COSTS:

The proposed amendment is necessary to conform the Commissioner's Regulations to recent changes made to Education Law section 273-a by Chapter 57 of the Laws of 2007, and will not impose any additional compliance costs on local governments.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed amendment does not impose any new technological requirements or costs on local governments.

MINIMIZING ADVERSE IMPACT:

The proposed amendment is needed to conform the Commissioner's Regulations to recent changes made to Education Law section 273-a by Chapter 57 of the Laws of 2007. The proposed amendment applies to public library systems and public libraries that seek State aid for library construction, including those public libraries established by local governments, but does not directly impose any compliance requirements or costs on local governments. The proposed amendment has been carefully drafted to meet statutory requirements while minimizing the impact on public libraries and public library systems. The proposed amendment will permit public libraries greater flexibility in applying for grant funds.

LOCAL GOVERNMENT PARTICIPATION:

The recent legislation that provides $14 Million in construction funding originated with the ten recommendations of the Regents Commission on Library Services. It is a component of the proposed New Century Libraries legislation, which was based on the recommendations made by the Commission after two years of studying the State's libraries, including 14 public meetings held throughout the State to solicit input from the public and the library community.

In addition, in 2003, staff of the New York State Library's Division of Library Development participated in a conference call with representatives of the Public Library System Directors Organization (PULISDO) and also attended the annual PULISDO meeting to discuss the construction program which resulted in suggestions for changing the program.

The proposed amendments to Regulation 90.12 are required by Education Law, and additional changes have been made to facilitate the application procedures at the recommendation of the State's public library systems.

Rural Area Flexibility Analysis

1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed amendment applies to public library systems and public libraries who seek State aid for library construction, including those located in the 44 rural counties having less than 200,000 inhabitants and in the 71 towns within urban counties having a population density of 150 persons per square mile or less.

2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed amendment applies to public library systems and public libraries who seek State aid for library construction, including those public libraries located in rural areas. The proposed amendment is needed to conform the Commissioner's Regulations to recent amendments made to Education Law section 273-a. Chapter 57 of the Laws of 2007 amended section 273-a to change the payment schedule for State aid for library construction from a 90/10 percent basis to a 50/40/10 percent basis.

The proposed amendment does not impose any additional professional services requirements. The proposed amendment provides greater flexibility to public libraries and public library systems in applying for State aid for library construction, and does not impose any additional compliance requirement on public libraries or public library systems located in rural areas.

3. COMPLIANCE COSTS:

The proposed amendment is necessary to conform the Commissioner's Regulations to Education Law section 273-a, as amended by Chapter 57 of the Laws of 2007, and will not impose any additional costs on public libraries or public library systems located in rural areas.

4. MINIMIZING ADVERSE IMPACT:

The proposed amendment applies to public library systems and public libraries who seek State aid for library construction, including those public libraries and public library systems located in rural areas. The proposed amendment is needed to conform the Commissioner's Regulations to recent amendments made to Education Law section 273-a by Chapter 57 of the Laws of 2007. The proposed amendment has been carefully drafted to meet statutory requirements while minimizing the impact on public libraries and public library systems.

The proposed amendment applies to public libraries and public library systems across the State, and accordingly, it was not possible to provide for a lesser standard or an emergency exemption for public libraries located in rural areas.

5. RURAL AREA PARTICIPATION:

The recent legislation that provides $14 Million in construction funding originated with the ten recommendations of the Regents Commission on Library Services. It is a component of the proposed New York Knowledge Initiative legislation and builds on the New Century Libraries proposal, which was based on the recommendations made by the Commission after two years of studying the State's libraries, including 14 public meetings held throughout the State to solicit input from the public and the library community.

In addition, in 2003, staff of the New York State Library's Division of Library Development participated in a conference call with representatives of the Public Library System Directors Organization (PULISDO) and also attended the annual PULISDO meeting to discuss the construction program which resulted in suggestions for changing the program.

The proposed amendments to Regulation 90.12 are required by Education Law, and additional changes have been made to facilitate the application procedures at the recommendation of the State's public library systems.

Job Impact Statement

The proposed amendment concerns applications for State aid for library construction by public library systems and public libraries and will not have an adverse impact on job or employment opportunities. Because it is evident from the nature of the proposed amendment that it will have no adverse impact on jobs or employment opportunities, no further measures were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.