PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Repeal of sections 29.10(h) and 70.7; addition of new sections 29.10(h) and 70.7; and amendment of section 70.8 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 207(not subdivided), 6504(not subdivided), 6506(1), 6507(2)(a), 7406(2), 7408(3)(b) and (h); and L. 2011, ch. 456
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
The proposed amendments to the Rules of the Board of Regents and the Regulations of the Commissioner of Education are necessary to conform them to the requirements of chapter 456 of the Laws of 2011. Chapter 456 amended sections 7406, 7406-a, and section 7408 of Education Law to provide that a certified public accountant, licensed by another state which the Board of Regents has determined to have substantially equivalent public accountant licensure requirements, or whose individual licensure qualifications are verified by the Department to be substantially equivalent to New York's requirements, and in good standing, may practice public accountancy in this state, if the certified public accountant holds a valid license to practice public accountancy in the other state and practices public accountancy in another state that is his or her principal place of business. The new law also allows a certified public accountant who qualifies for a practice privilege to register a public accounting firm in this state.
The proposed regulations implement the new law and add definitions of unprofessional conduct related to the statutory changes. The Board of Regents approved emergency regulations in October 2011, with an effective date of November 15, 2011, consistent with the effective date of the law. Those regulations have subsequently been revised, based on feedback from interested parties. Emergency action on the amended regulations is necessary for the preservation of the public safety and general welfare in order to maintain in effect the rules and regulations implementing chapter 456 of the Laws of 2011, which became effective on November 15, 2011, during the required public comment period relating to revisions made to the regulations previously adopted.
It is anticipated that the proposed amendment will be presented for adoption as a permanent rule at the March 2012 Regents meeting, after publication in the State Register and expiration of the 30-day public comment period for revised rule makings required under the State Administrative Procedure Act.
Subject:
Certified Public Accountants.
Purpose:
To implement chapter 456 of the Laws of 2011.
Text of emergency rule:
1. The emergency action taken at the October 17-18, 2011 meeting of the Board of Regents, which repealed subdivision (h) of section 29.10 of the Regents Rules and added a new subdivision (h), repealed section 70.7 of the Commissioner's Regulations and added a new section 70.7, and amended subdivision (a) and paragraph (2) of subdivision (d) of section 70.8 of the Commissioner's Regulations, is repealed, effective January 20, 2012.
2. Subdivision (h) of section 29.10 of the Rules of the Board of Regents is repealed and a new subdivision (h) is added, effective January 20, 2012 to read as follow:
(h) Practice privilege.
(1) Anyone practicing public accountancy under a practice privilege pursuant to subdivision 2 of section 7406 of the Education Law shall be subject to all applicable provisions of the Education Law and of this title relating to professional misconduct as if he or she is licensed to practice in New York.
(2) Unprofessional conduct in the practice of public accountancy shall include the failure to provide notice as required by paragraph (6) or paragraph (7) of subdivision (b) of section 70.7 of this title.
3. Section 70.7 of the Regulations of the Commissioner of Education is repealed and a new section 70.7 is added, effective January 20, 2012, to read as follows:
§ 70.7 Practice by certain out-of-state individuals and firms.
(a) Practice by certain out-of-state firms.
(1) A firm that holds a valid license, registration, or permit in another state shall register with the Department if the firm offers to engage or engages in the practice of public accountancy pursuant to subdivision 1 or 2 of section 7401 of the Education Law;
(2) A firm that holds a valid license, registration, or permit in another state that is not required to register with the Department pursuant to paragraph (1) of this subdivision, including those out-of-state firms that use the title "certified public accountant" or "certified public accountants" or the designation "CPA" or "CPAs" but do not have an office in New York, may practice in this state without a firm registration with the Department, if the firm's practice is limited to the practice of public accountancy pursuant to subdivision 3 of section 7401 of the Education Law;
(3) A firm may register and perform services pursuant to this subdivision only if:
(i) at least one partner of a partnership or limited liability partnership, member of a limited liability company or shareholder of a professional service corporation or the sole proprietor is licensed as a certified public accountant engaged within the United States in the practice of public accountancy and is in good standing as a certified public accountant of one or more of the states of the United States;
(ii) the firm complies with the Department's mandatory quality review program pursuant to section 7410 of the Education Law; and
(iii) the services are performed by an individual who is licensed and in good standing as a certified public accountant of one or more states of the Unites States.
(b) Practice by certain out-of-state individuals.
(1) An individual who holds a certificate or license as a certified public accountant issued by another state, who is in good standing in the state where certified or licensed, and whose principal place of business is not in this state may practice public accountancy in this state without obtaining a license pursuant to section 7404 of the Education Law, if:
(i) the Department has determined that the other state has education, examination, and experience requirements for certification or licensure that are substantially equivalent to or exceed the requirements for licensure in this state; or
(ii) the Department has verified that the individual possesses licensure qualifications that are substantially equivalent to or exceed the requirements for licensure in this state.
(2) Except as otherwise provided in paragraph (6) or (7) of this subdivision, an individual who meets the requirements of paragraph (1) of this subdivision and who offers or renders professional services in person or by mail, telephone, or electronic means may practice public accountancy in this state without notice to the Department. An individual who wishes to practice public accountancy in this state, but does not meet the requirements of paragraph (1) of this subdivision is subject to the full licensing and registration requirements of the education law and of this title.
(3) An individual licensee or individual practicing under this subdivision who signs or authorizes someone to sign the accountant's report on the financial statement on behalf of a firm shall meet the competency requirements set out in the professional standards for such services and as set out in paragraph (13) of subdivision (a) of section 29.10 of this title.
(4) An individual practicing under this section shall practice through a firm that is registered with the Department pursuant to section 7408 of the Education Law if the individual performs any attest or compilation service as defined in section 7401-a of the Education Law.
(5) Each certified public accountant who practices in this state pursuant to this section and each firm that employs such certified public accountant to provide services in New York consent to all of the following as a condition of the exercise of such practice privilege:
(i) to the personal and subject matter jurisdiction and disciplinary authority of the Board of Regents as if the practice privilege is a license and an individual with a practice privilege is a licensee;
(ii) to comply with Article 149 of the Education Law and the provisions of this Title relating to public accountancy; and
(iii) to the appointment of the Secretary of State or other public official acceptable to the Department, in the certified public accountant's state of licensure or the state in which the firm has its principal place of business, as the certified public accountant's or firm's agent upon whom process may be served in any action or proceeding by the Department against such certified public accountant or firm.
(6) In the event the license from the state of the certified public accountant's principal place of business is no longer valid or in good standing, or that the certified public accountant has had any final disciplinary action taken by the licensing or disciplinary authority of any other state concerning the practice of public accountancy that has resulted in any of the dispositions specified in subparagraphs (i) or (ii) of this paragraph, the certified public accountant shall so notify the Department, on a form prescribed by the Department, and shall immediately cease offering to perform or performing such services in this state individually and on behalf of his or her firm, until he or she has received from the Department written permission to do so:
(i) the suspension or revocation of his or her license; or
(ii) other disciplinary action against his or her license that arises from:
(a) gross negligence, recklessness or intentional wrongdoing relating to the practice of public accountancy; or
(b) fraud or misappropriation of funds relating to the practice of public accountancy; or
(c) preparation, publication, or dissemination of false, fraudulent, or materially incomplete or misleading financial statements, reports or information relating to the practice of public accountancy.
(7) Any certified public accountant who, within the seven years immediately preceding the date on which he or she wishes to practice in New York, has been subject to any of the actions specified in subparagraphs (i), (ii), (iii), or (iv) of this paragraph shall so notify the Department, on a form prescribed by the Department, and shall not practice public accountancy in this state pursuant to Education Law section 7406(2) and this section, until he or she has received from the Department written permission to do so. In determining whether the certified public accountant shall be allowed to practice in this state, the Department shall follow the procedure to determine whether an applicant for licensure is of good moral character. Anyone failing to provide the notice required by this paragraph shall be subject to the personal and subject matter jurisdiction and disciplinary authority of the Board of Regents as if the practice privilege is a license, and an individual with a practice privilege is a licensee, and may be deemed to be practicing in violation of Education Law section 6512:
(i) has been the subject of any final disciplinary action taken against him or her by the licensing or disciplinary authority of any other jurisdiction with respect to any professional license or has any charges of professional misconduct pending against him or her in any other jurisdiction; or
(ii) has had his or her license in another jurisdiction reinstated after a suspension or revocation of said license; or
(iii) has been denied issuance or renewal of a professional license or certificate in any other jurisdiction for any reason other than an inadvertent administrative error; or
(iv) has been convicted of a crime or is subject to pending criminal charges in any jurisdiction.
(8) Notwithstanding paragraph (1) of this subdivision or any other inconsistent law or rule to the contrary, a certified public accountant licensed by another state and in good standing, who otherwise meets the practice privilege requirements under this section and files an application for licensure under Education Law section 7404, may continue to practice under such privilege for a period coterminous with the period during which his or her application for licensure remains pending with the Department, including any period after the certified public accountant establishes a principal place of business in New York, while his or her application is pending.
4. Subdivision (a) of section 70.8 of the Regulations of the Commissioner of Education is amended, effective January 20, 2012, as follows:
(a) Pursuant to the provisions of Education Law section 7408, a firm shall register with the department if:
(1) …
(2) except as otherwise provided in section 70.7(a)(2) of this Part, the firm uses the title "CPA" or "CPA firm" or the title "PA" or "PA firm.
5. Paragraph (2) of subdivision (d) of section 70.8 of the Regulations of the Commissioner of Education is amended, effective January 20, 2012, as follows:
(2) $10 for the sole proprietor or each general partner of a partnership or partner of a limited liability partnership, member of a limited liability company or shareholder of a professional service corporation whose principal place of business is located in New York [or who is otherwise authorized to practice in New York through a temporary practice permit issued pursuant to section 70.7 of this part] and for each certified public accountant or public accountant licensed in New York State that signs or authorizes someone to sign an engagement on behalf of a New York State client but whose principal place of business is not located in New York State. Any firm that registers with the Department pursuant the provisions of Education Law section 7408, but does not have a sole proprietor or a general partner of a partnership or a partner of a limited liability partnership, or a member of a limited liability company or a shareholder of a professional service whose principal place of business is in NYS, shall pay $10 for the firm.
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 submitted to the Department of State a notice of proposed rule making, I.D. No. EDU-45-11-00011-P, Issue of November 9, 2011. The emergency rule will expire March 19, 2012.
Text of rule and any required statements and analyses may be obtained from:
Mary Gammon, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-8869, email: legal@mail.nysed.gov
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Section 207 of the Education Law grants general rule-making authority to the Board of Regents to carry into effect the laws and policies of the State relating to education.
Section 6504 of the Education Law authorizes the Board of Regents to supervise the admission to and regulation of the practice of the professions.
Subdivision (1) of section 6506 of the Education Law authorizes the Board of Regents to promulgate rules in the supervision of the practice of the professions.
Paragraph (a) of subdivision (2) of section 6507 of the Education Law authorizes the Commissioner of Education to promulgate regulations in administering the admission to and practice of the professions.
Chapter 456 of the Laws of 2011 repealed section 7406-a and amended sections 7406 and 7408 of the Education Law.
Subdivision (2) of section 7406 of the Education Law provides that a certified public accountant, licensed by another state which the Board of Regents has determined to have substantially equivalent public accountant licensure requirements, or whose individual licensure qualifications are verified by the Department to be substantially equivalent to New York's requirements, and in good standing, may practice public accountancy in this state, if the certified public accountant holds a valid license to practice public accountancy in the other state and practices public accountancy in another state that is his or her principal place of business.
Section 7408 of the Education Law establishes a registration requirement for public accounting firms that perform attest and/or compilation services and professional services that are incident to attest and/or compilation services or that use the title CPA or CPA firm or the title PA or PA firm, and authorizes the Board of Regents to establish a registration process for public accounting firms. This section also restricts the use of certain titles and designations by non-licensed accountants and establishes reporting requirements for non-licensed accountants issuing financial statements.
2. LEGISLATIVE OBJECTIVES:
The proposed amendments to the Rules of the Board of Regents and to the Regulations of the Commissioner of Education are necessary to implement chapter 456 of the Laws of 2011, which becomes effective on February 1, 2012.
3. NEEDS AND BENEFITS:
The proposed amendments are needed to implement chapter 456 of the Laws of 2011. The new law repeals a statutory provision which enabled certain certified public accountants (CPAs) licensed in states other than New York to provide attest and compilation services in this state on a temporary and limited basis. It also repeals a provision which authorized certain out-of-state CPAs to provide non-attest services in New York. In lieu of these provisions, chapter 456 establishes a practice privilege provision to permit practice in New York by certain CPAs licensed in other states.
4. COSTS:
(a) Cost to State government: There are no additional costs beyond those imposed by the statute; however, there will be a reduction in the revenue that had been generated by the issuance of temporary practice permits of approximately $25,000 per year.
(b) Cost to local government: There are no costs to local government.
(c) Cost to private regulated parties: There are no additional costs to private regulated parties beyond those imposed by the current regulation.
(d) Costs to the regulatory agency: As stated above in "Costs to State Government," the proposed amendments will not impose any additional costs on SED beyond those imposed by the statute; however, there will be a reduction in the revenue that had been generated by the issuance of temporary practice permits of approximately $25,000 per year.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendments relate to establishing a practice privilege in public accountancy to permit practice in New York by certain CPAs licensed in other states. The amendments do not impose any programs, service, duty, or responsibility upon local governments.
6. PAPERWORK:
The amendments will not impose any other paperwork requirement.
7. DUPLICATION:
The proposed amendments do not duplicate any other existing State or Federal requirements.
8. ALTERNATIVES:
There are no viable alternatives to the proposed amendments and none were considered.
9. FEDERAL STANDARDS:
There are no Federal standards established in law for the subject matter of the proposed amendments.
10. COMPLIANCE SCHEDULE:
Regulated parties will be required to comply with the regulation as of November 15, 2011, the effective date of the new law. It is anticipated that the proposed rule will be presented for permanent adoption at the March 19-20, 2012 Regents meeting, with an effective date of April 11, 2012.
Regulatory Flexibility Analysis
The purpose of the proposed amendments to the Rules of the Board of Regents and the Regulations of the Commissioner of Education are to implement chapter 456 of the Laws of 2011. The new law repeals a statutory provision which enabled certain certified public accountants (CPAs) licensed in states other than New York to provide attest and compilation services in this state on a temporary and limited basis. It also repeals a provision which authorized certain out-of-state CPAs to provide non-attest services in New York. In lieu of these provisions, chapter 456 establishes a practice privilege provision to permit practice in New York by certain CPAs licensed in other states.
The amendments do not regulate small businesses or local governments. It does not impose any reporting, recordkeeping, or other compliance requirements on small business or local governments beyond those inherent in the statute, or have any adverse economic effect on them. Because it is evident from the nature of the proposed amendments that they do not affect small businesses or local governments, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses and local governments is not required and one has not been prepared.
Rural Area Flexibility Analysis
1. TYPES AND ESTIMATED NUMBER OF RURAL AREAS:
The proposed amendments will affect an estimated 2,743 certified public accountants and public accountants that are located in a rural county in New York State.
2. REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:
The purpose of the proposed amendments to the Rules of the Board of Regents and the Regulations of the Commissioner of Education is to implement chapter 456 of the Laws of 2011. The new law repeals a statutory provision which enabled certain certified public accountants (CPAs) licensed in states other than New York to provide attest and compilation services in this state on a temporary and limited basis. It also repeals a provision which authorized certain out-of-state CPAs to provide non-attest services in New York. In lieu of these provisions, chapter 456 establishes a practice privilege provision to permit practice in New York by certain CPAs licensed in other states. The proposed amendment will not impose any conpliance requirements beyond those inherent in chapter 456 and will not require regulated parties, including those that are located in rural areas of the State, to hire professional services to comply.
3. COSTS:
The amendments will not impose any additional costs on licensees, including those that are located in rural areas of the State.
4. MINIMIZING ADVERSE IMPACT:
The proposed amendments implement chapter 456 of the Laws of 2011 and make no exception for licensees who live or work in rural areas. Because of the nature of the proposed amendments, alternative approaches for rural areas were not considered.
5. RURAL AREA PARTICIPATION:
The proposed amendments to the Rules of the Board of Regents and the Regulations of the Commissioner of Education implement chapter 456 of the Laws of 2011. During the legislative process, the State Education Department solicited comments from the State Board for Public Accountancy and the New York State Society of Certified Public Accountants, both of which include members located in all areas of New York State, including rural areas of the State.
Job Impact Statement
The purpose of the proposed amendments to the Rules of the Board of Regents and the Regulations of the Commissioner of Education is to implement chapter 456 of the Laws of 2011. The new law repeals a statutory provision which enabled certain certified public accountants (CPAs) licensed in states other than New York to provide attest and compilation services in this state on a temporary and limited basis. It also repeals a provision which authorized certain out-of-state CPAs to provide non-attest services in New York. In lieu of these provisions, chapter 456 establishes a practice privilege provision to permit practice in New York by certain CPAs licensed in other states. Because it is evident from the nature of the rule and regulation that they will have no impact on the number of jobs and number employment opportunities in public accounting or any other field beyond those inherent in chapter 456, no affirmative steps were needed to ascertain that fact and none were taken. Accordingly, a job impact statement is not required, and one has not been prepared.
