Meeting of the Board of Regents | October 2007

THE STATE EDUCATION DEPARTMENT / THE UNIVERSITY OF THE STATE OF NEW YORK / ALBANY, NY 12234

 

TO:	Cultural Education Committee
FROM:	Jeffrey W. Cannell
SUBJECT:	Proposed Amendment to Section 90.12 of the Regulations of the Commissioner of Education Relating to State Aid for Public Library Construction
DATE:	October 10, 2007
STRATEGIC GOAL:	Goals 2-5
AUTHORIZATION(S):

 

SUMMARY

 

 

Issue for Decision

 

              Should the Board of Regents permanently adopt the proposed amendment to section 90.12 of the Regulations of the Commissioner of Education relating to requirements for State aid for public library construction?

 

Reason(s) for Consideration

 

              The proposed amendment 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, so that the payment schedule for State aid for library construction and renovation projects 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 library systems.

 

Proposed Handling

 

              The question of permanently adopting the proposed amendment, which was adopted on an emergency basis at the July 2007 Regents meeting, will come before the Cultural Education Committee at the October 2007 Regents meeting.  The question of adopting the amendment on a second, subsequent emergency basis will also come before the Committee to ensure that the July emergency rule remains continuously in effect until the effective date of its adoption as a permanent rule. A statement of the facts and circumstances which necessitate emergency adoption is attached.

 

Procedural History

 

              The proposed amendment was adopted at the July 25, 2007 Regents meeting as an emergency measure, effective July 31, 2007.  A Notice of Proposed Rule Making was published in the State Register on August 8, 2007. Supporting materials for the proposed amendment are available upon request from the Secretary of the Board of Regents.

 

Background information

 

Chapter 57 of the Laws of 2007 amended Education Law section 273-a to change the payment schedule for funds for public library construction and renovation projects, appropriated pursuant to Chapter 53 of the Laws of 2007, from a 90/10 percent basis to a 50/40/10 percent basis. The proposed amendment is needed to ensure that the Commissioner's Regulations comply with the recently amended Education Law section 273-a, and to enable the timely implementation of public library construction and renovation projects in fiscal year 2007-2008. 

 

Chapter 53 of the Laws of 2007, which appropriates $14 Million in public library construction funds, originated with the 10 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 2003, staff of the New York State Library's Division of Library Development had a conference call with representatives of the Public Library System Directors Organization (PULSIDO) and also attended the annual PULSIDO meeting to discuss the library construction program.  These meetings resulted in suggestions for changing the program.  Therefore, in addition to revising section 90.12 of the Commissioner’s Regulations to conform to the recently amended Education Law section 273, additional changes have been made to facilitate the State aid application procedures.

 

Recommendation

 

It is recommended that the Board of Regents take the following action:

 

VOTED:  That paragraph (5) of subdivision (a), subdivision (c), paragraphs (1) and (2) of subdivision (e), and subdivision (f) of section 90.12 of the Regulations of the Commissioner of Education be amended, as submitted, effective November 15, 2007.

 

VOTED: That paragraph (5) of subdivision (a), subdivision (c), paragraphs (1) and (2) of subdivision (e), and subdivision (f) of section 90.12 of the Regulations of the Commissioner of Education be amended, as submitted, effective October 29, 2007, as an emergency action, upon a finding by the Board of Regents that such action 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 effective date of its adoption as a permanent rule.

 

Timetable for Implementation

 

The proposed amendment was adopted as an emergency measure at the July 25, 2007 Regents meeting, effective July 31, 2007.  The July emergency rule will expire on October 28, 2007.  The second emergency action will become effective on October 29, 2007.  The permanent adoption of the proposed amendment will become effective on November 15, 2007.

 

Attachment:  Assessment of Public Comment

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

              Pursuant to sections 207, 215 and 273-a of the Education Law and Chapter 57 of the Laws of 2007.

 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

componentof 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) replacementof 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].

 

 

 

 

 

 

 

 

 

 

 

PROPOSED AMENDMENT OF SECTION 90.12 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 207, 215 AND 273-a OF THE EDUCATION LAW AND CHAPTERS 53 AND 57 OF THE LAWS OF 2007, RELATING TO STATE AID FOR PUBLIC LIBRARY CONSTRUCTION

STATEMENT OF FACTS AND CIRCUMSTANCES WHICH NECESSITATE EMERGENCY ADOPTION

              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.

             

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

PROPOSED AMENDMENT OF SECTION 90.12 OF THE REGULATIONS OF THE COMMISSIONER OF EDUCATION PURSUANT TO SECTIONS 207, 215 AND 273-a OF THE EDUCATION LAW AND CHAPTERS 53 AND 57 OF THE LAWS OF 2007, RELATING TO STATE AID FOR PUBLIC LIBRARY CONSTRUCTION

ASSESSMENT OF PUBLIC COMMENT

              Since publication of a Notice of Proposed Rule Making in the State Register on August 8, 2007, the State Education Department received the following comment on the proposed amendment.

COMMENT:

              Subdivision (f) of section 90.12 of the Regulations of the Commissioner of Education should be revised so that the payment schedule for State aid for public library construction and renovation projects is changed from a 50/40/10 percent basis to a 90/10 percent basis, as was statutorily required for State fiscal year 2006-2007. The 50/40/10 percent payment schedule for these projects will cause undue hardship on public libraries by providing the libraries with only 50 percent of project costs up front and, as a result, forcing libraries to pay remaining project costs from alternative funding sources until their receipt of the remaining State aid.  The new 50/40/10 percent payment schedule may force libraries to delay or eliminate necessary library construction or renovation projects.

DEPARTMENT RESPONSE:

              The proposed amendment is consistent with Education Law section 273-a, as recently amended by the Legislature in Chapter 57 of the Laws of 2007, which requires the payment schedule for State aid for public library construction and renovation projects be changed to a 50/40/10 percent basis from a 90/10 percent basis. Recommendation to change the payment schedule back to a 90/10 percent basis is beyond the scope of the proposed amendment in that it requires a statutory change.  To revise the payment schedule for such State aid, legislative changes to Education Law section 273-a would need to be made before the Commissioner’s Regulations could be so revised. 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

AMENDMENT TO THE REGULATIONS OF THE COMMISSIONER OF EDUCATION

              Pursuant to sections 207, 215 and 273-a of the Education Law and Chapter 57 of the Laws of 2007.

 1.   Paragraph (5) of subdivision (a) of section 90.12 of the Regulations of the Commissioner of Education is amended, effective November 15, 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 November 15, 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 November 15, 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

componentof 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) replacementof 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 November 15, 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 November 15, 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].