Home » 2014 Issues » July 30, 2014 » EDU-19-14-00006-E Appeals to Commissioner of Education Relating to New York City Charter School Co-Location Sites
EDU-19-14-00006-E Appeals to Commissioner of Education Relating to New York City Charter School Co-Location Sites
7/30/14 N.Y. St. Reg. EDU-19-14-00006-E
NEW YORK STATE REGISTER
VOLUME XXXVI, ISSUE 30
July 30, 2014
RULE MAKING ACTIVITIES
EDUCATION DEPARTMENT
EMERGENCY RULE MAKING
I.D No. EDU-19-14-00006-E
Filing No. 633
Filing Date. Jul. 14, 2014
Effective Date. Jul. 14, 2014
Appeals to Commissioner of Education Relating to New York City Charter School Co-Location Sites
PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Amendment of section 276.11 of Title 8 NYCRR.
Statutory authority:
Education Law, sections 101(not subdivided), 207(not subdivided), 305(1), (2), 310(1), (4), (6), (7), 311(1)-(4) and 2853(3)(e), as added by L. 2014, ch. 56, part BB, section 5
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
On March 31, 2014, Governor Cuomo signed Chapter 56 of the Laws of 2014. Section 5 of Part BB of Chapter 56, which became effective April 1, 2014, added a new paragraph (e) to Education Law § 2853(3) to provide, among other things, for an expedited Education Law § 310 appeal to the Commissioner from the New York City School District’s offer or refusal to offer a co-location site upon written request for co-location made by:
• charter schools that are approved by their charter entity pursuant to Article 56 of the Education Law to first commence instruction for the 2014-2015 school year or thereafter; and
• charter schools that require additional space due to an expansion of grade level for the 2014-2015 school year or thereafter, and which are approved by their charter entity pursuant to Article 56 of the Education Law for those grades newly provided.
The proposed amendment enacts technical amendments to § 276.11 of the Commissioner's Regulations to provide for expedited appeals in the above instances pursuant to Education Law §§ 310 and 2853(3)(e).
The proposed amendment was adopted as an emergency action at the April 28-29, 2014 Regents meeting, effective April 29, 2014, and has now been adopted as a permanent rule at the July 8-9, 2014 Regents meeting. Pursuant to SAPA § 203(1), the earliest effective date of the permanent rule is July 30, 2014, the date a Notice of Adoption will be published in the State Register. However, the April emergency rule will expire on July 27, 2014, 90 days from its filing with the Department of State on April 29, 2014. A lapse in the rule's effective date could disrupt determinations of expedited appeals relating to New York City charter school co-locations brought pursuant to Education Law §§ 310 and 2853(3)(e) as added by § 5 of Part BB of Chapter 56 of the Laws of 2014. Emergency action is therefore necessary for the preservation of the general welfare to ensure that the proposed rule adopted by emergency action at the April 2014 Regents meeting, and adopted as a permanent rule at the July 2014 Regents meeting, remains continuously in effect until the effective date of its permanent adoption.
Subject:
Appeals to Commissioner of Education relating to New York City charter school co-location sites.
Purpose:
To implement Education Law section 2853(3)(e), as added by L. 2014, ch. 56, part BB, section 5
Text of emergency rule:
Paragraph (1) of subdivision (b) of section 276.11 of the Regulations of the Commissioner of Education is amended, effective July 28, 2011, as follows:
(1) The procedures set forth in this section shall apply to:
(i) appeals pursuant to Education Law section 2853(3)(a-5) from:
[(i)] (a) final determinations of the board of education to locate or co-locate a charter school within a public school building;
[(ii)] (b) the implementation of, and compliance with, the building usage plan developed pursuant to Education Law section 2853(3)(a-3); and/or
[(iii)] (c) revisions of such a building usage plan, relating to a proposal for the collaborative usage of shared resources and spaces between the charter school and the non-charter schools, on the grounds that such revision fails to meet the equitable access standard set forth in Education Law section 2853(3)(a-3)(2)(B); or
(ii) appeals pursuant to Education Law section 2853(3)(e) from the city school district’s offer or failure to offer a co-location site or space in a privately owned or other publicly owned facility upon a written request for co-location made by:
(a) charter schools that are approved by their charter entity pursuant to Article 56 of the Education Law to first commence instruction for the 2014-2015 school year or thereafter; or
(b) charter schools that require additional space due to an expansion of grade level for the 2014-2015 school year or thereafter, and which are approved by their charter entity pursuant to Article 56 of the Education Law for those grades newly provided.
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-19-14-00006-EP, Issue of May 14, 2014. The emergency rule will expire September 11, 2014.
Text of rule and any required statements and analyses may be obtained from:
Kirti Goswami, State Education Department, Office of Counsel, State Education Building, Room 148, 89 Washington Ave., Albany, NY 12234, (518) 474-6400, email: legal@mail.nysed.gov
Regulatory Impact Statement
1. STATUTORY AUTHORITY:
Education Law section 101 continues the existence of the Education Department, with the Board of Regents as its head, and authorizes the Regents to appoint the Commissioner as chief administrative officer of the Department, which is charged with the general management and supervision of public schools and the educational work of the State.
Education Law section 207 authorizes the Regents and Commissioner to adopt rules and regulations implementing State law regarding education.
Education Law section 305(1) designates the Commissioner as chief executive officer of the State system of education and the Regents, and authorizes the Commissioner to enforce laws relating to the educational system and to execute the Regents' educational policies. Section 305(2) authorizes the Commissioner to have general supervision over schools subject to the Education Law.
Education Law section 310 provides that an aggrieved party may appeal by petition to the Commissioner of Education in consequence of certain specified actions by school districts and school officials.
Education Law section 311 authorizes the Commissioner to regulate the practice of appeals to the Commissioner brought pursuant to Education Law section 310.
§ 5 of Part BB of Chapter 56 of the Laws of 2014, which became effective on March 31, 2014, added a new paragraph (e) to Education Law section 2853(3) to provide, among other things, for an expedited Education Law § 310 appeal to the Commissioner for appeals from the New York City School District’s offer or refusal to offer a co-location site upon written request for co-location made by:
• charter schools that are approved by their charter entity pursuant to Article 56 of the Education Law to first commence instruction for the 2014-2015 school year or thereafter; and
• charter schools that require additional space due to an expansion of grade level for the 2014-2015 school year or thereafter, and which are approved by their charter entity pursuant to Article 56 of the Education Law for those grades newly provided.
2. LEGISLATIVE OBJECTIVES:
The proposed amendment is consistent with the authority conferred by the above statutes to regulate the practice and procedures to be followed in Education Law section appeals, and is necessary to implement § 5 of Part BB of Chapter 56 of the Laws of 2014 by establishing procedures for expedited appeals relating to New York City charter school co-locations brought pursuant to Education Law §§ 310 and 2853(3)(e).
3. NEEDS AND BENEFITS:
The proposed amendment is necessary to implement § 5 of Part BB of Chapter 56 of the Laws of 2014 by establishing procedures for an expedited Education Law § 310 appeal to the Commissioner for appeals from the New York City School District’s offer or refusal to offer a co-location site or space in a privately owned or other publicly owned facility upon written request for co-location made by:
• charter schools that are approved by their charter entity pursuant to Article 56 of the Education Law to first commence instruction for the 2014-2015 school year or thereafter; and
• charter schools that require additional space due to an expansion of grade level for the 2014-2015 school year or thereafter, and which are approved by their charter entity pursuant to Article 56 of the Education Law for those grades newly provided.
The proposed amendment enacts technical amendments to § 276.11 of the Commissioner's Regulations to provide for expedited appeals in the above instances pursuant to Education Law §§ 310 and 2853(3)(e).
4. COSTS:
Cost to the State: None.
Costs to local government: None.
Cost to private regulated parties: None.
Cost to regulating agency for implementation and continued administration of this rule: None.
The proposed amendment is necessary to implement § 5 of Part BB of Chapter 56 of the Laws of 2014 and will not impose any costs on the State or regulated parties beyond those imposed by the statute.
5. LOCAL GOVERNMENT MANDATES:
The proposed amendment is necessary to implement § 5 of Part BB of Chapter 56 of the Laws of 2014 and will not impose any additional program, service, duty or responsibility beyond those imposed by the statute.
6. PAPERWORK:
The proposed amendment imposes no additional reporting, forms or other paperwork requirements.
7. DUPLICATION:
The proposed amendment does not duplicate, overlap or conflict with State and Federal rules or requirements, and is necessary to implement § 5 of Part BB of Chapter 56 of the Laws of 2014.
8. ALTERNATIVES:
There were no significant alternatives. The proposed amendment is necessary to implement § 5 of Part BB of Chapter 56 of the Laws of 2014.
9. FEDERAL STANDARDS:
The proposed amendment is necessary to implement § 5 of Part BB of Chapter 56 of the Laws of 2014. There are no applicable standards of the Federal government for the same or similar subject areas.
10. COMPLIANCE SCHEDULE:
It is anticipated that regulated parties will be able to achieve compliance with the provisions of the proposed amendment by its effective date.
Regulatory Flexibility Analysis
Small Businesses:
The proposed amendment relates to appeals to the Commissioner of Education pursuant to Education Law §§ 310 and 2853(3)(e) relating to New York City charter school co-location. The proposed amendment does not impose any adverse economic impact, reporting, recordkeeping or 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.
Local Governments:
EFFECT OF RULE:
The proposed amendment applies to the City School District of the City of New York.
COMPLIANCE REQUIREMENTS:
The proposed amendment is necessary to implement § 5 of Part BB of Chapter 56 of the Laws of 2014, which became effective on March 31, 2014, and does not impose any additional compliance requirements beyond those imposed by the statute. The proposed amendment establishes procedures for an expedited Education Law § 310 appeal to the Commissioner from the New York City School District’s offer or refusal to offer a co-location site or space in a privately owned or other publicly owned facility upon written request for co-location made by:
• charter schools that are approved by their charter entity pursuant to Article 56 of the Education Law to first commence instruction for the 2014-2015 school year or thereafter; and
• charter schools that require additional space due to an expansion of grade level for the 2014-2015 school year or thereafter, and which are approved by their charter entity pursuant to Article 56 of the Education Law for those grades newly provided.
The proposed amendment enacts technical amendments to § 276.11 of the Commissioner's Regulations to provide for expedited appeals in the above instances pursuant to Education Law §§ 310 and 2853(3)(e).
PROFESSIONAL SERVICES:
The proposed amendment does not impose any additional professional services requirements.
COMPLIANCE COSTS:
The proposed amendment is necessary to implement § 5 of Part BB of Chapter 56 of the Laws of 2014 and will not impose any costs on the State or local governments beyond those imposed by the statute.
ECONOMIC AND TECHNOLOGICAL FEASIBILITY:
The proposed amendment does not impose any new economic costs or technological requirements on local governments.
MINIMIZING ADVERSE IMPACT:
The proposed amendment is necessary to implement § 5 of Part BB of Chapter 56 of the Laws of 2014 and will not impose any compliance requirements or costs on the State or local governments beyond those imposed by the statute. The proposed amendment is establishes procedures for an expedited Education Law § 310 appeal to the Commissioner from the New York City School District’s offer or refusal to offer a co-location site upon written request for co-location made by:
• charter schools that are approved by their charter entity pursuant to Article 56 of the Education Law to first commence instruction for the 2014-2015 school year or thereafter; and
• charter schools that require additional space due to an expansion of grade level for the 2014-2015 school year or thereafter, and which are approved by their charter entity pursuant to Article 56 of the Education Law for those grades newly provided.
The proposed amendment enacts technical amendments to § 276.11 of the Commissioner's Regulations to provide for expedited appeals in the above instances pursuant to Education Law §§ 310 and 2853(3)(e).
LOCAL GOVERNMENT PARTICIPATION:
A copy of the proposed amendment was provided to the New York City Department of Education for review and comment.
INITIAL REVIEW OF RULE (SAPA § 207):
Pursuant to State Administrative Procedure Act section 207(1)(b), the State Education Department proposes that the initial review of this rule shall occur in the fifth calendar year after the year in which the rule is adopted, instead of in the third calendar year. The justification for a five year review period is that the proposed rule is necessary to implement statutory requirements in Education Law section 2853(3)(e), as added by § 5 of Part BB of Chapter 56 of the Laws of 2014, and therefore the substantive provisions of the proposed rule cannot be repealed or modified unless there is a further statutory change. Accordingly, there is no need for a shorter review period. The Department invites public comment on the proposed five year review period for this rule. Comments should be sent to the agency contact listed in item 10 of the Notice of Proposed Rule Making published herewith, and must be received within 45 days of the State Register publication date of the Notice.
Rural Area Flexibility Analysis
The proposed amendment relates to expedited appeals to the Commissioner of Education pursuant to Education Law §§ 310 and 2853(3)(e) regarding New York City charter school co-locations. The proposed amendment is applicable to the City School District of the City of New York and will not have an adverse impact on rural areas or impose reporting, recordkeeping or other compliance requirements on public or private entities in rural areas. Because it is evident from the nature of the proposed amendment that it does not affect rural areas or public or private entities in 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 § 5 of Part BB of Chapter 56 of the Laws of 2014, and relates to expedited appeals to the Commissioner of Education pursuant to Education Law §§ 310 and 2853(3)(e) regarding New York City charter school co-locations. The proposed amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the amendment 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.
