TITLE 1 Private Activity Bond Allocation Act of 1990
* § 1. Short title. This act shall be known and may be cited as the
"private activity bond allocation act of 1990".
* NB Repealed January 1, 1991
* § 2. Definitions. As used in this act, unless the context requires
otherwise:
1. "Bonds" means bonds, notes or other obligations.
2. "Carryforward" means an amount of unused private activity bond
ceiling available to an issuer pursuant to an election filed with the
internal revenue service pursuant to section 146(f) of the code.
3. "Code" means the internal revenue code of 1986, as amended.
4. "Commissioner" means the commissioner of the New York state
department of economic development.
5. "Covered bonds" means those tax exempt private activity bonds and
that portion of the non qualified amount of an issue of governmental use
bonds for which an allocation of the statewide ceiling is required for
the interest earned by holders of such bonds to be excluded from the
gross income of such holders for federal income tax purposes under the
code.
6. "Director" means the director of the New York state division of the
budget.
7. "Issuer" means a local agency, state agency or other issuer.
8. "Local agency" means an industrial development agency established
or operating pursuant to article 18-A of the general municipal law, the
Troy industrial development authority and the Auburn industrial
development authority.
9. "Other issuer" means any agency, political subdivision or other
entity, other than a local agency or state agency, that is authorized to
issue covered bonds.
10. "Qualified small issue bonds" means qualified small issue bonds,
as defined in section 144(a) of the code.
11. "State agency" means the state of New York, New York state energy
research and development authority, New York job development authority,
New York state environmental facilities corporation, New York state
urban development corporation and its subsidiaries, Battery Park city
authority, port authority of New York and New Jersey, power authority of
the state of New York, dormitory authority of the state of New York, New
York state housing finance agency, state of New York mortgage agency,
and any other public benefit corporation or public authority designated
by the governor for the purposes of this act.
12. "Statewide ceiling" means for any calendar year the highest state
ceiling (as such term is used in section 146 of the code) applicable to
New York state.
* NB Repealed January 1, 1991
* § 3. Local agency set-aside. A set-aside of statewide ceiling for
local agencies for any calendar year shall be an amount which bears the
same ratio to one-third of the statewide ceiling as the population of
the jurisdiction of such local agency bears to the population of the
entire state. The commissioner shall administer allocations of such
set-aside to local agencies.
* NB Repealed January 1, 1991
* § 4. State agency set-aside. A set-aside of statewide ceiling for
all state agencies for any calendar year shall be one-third of the
statewide ceiling. The director shall administer allocations of such
set-aside to state agencies and may grant an allocation to any state
agency upon receipt of an application in such form as the director shall
require.
* NB Repealed January 1, 1991
* § 5. Statewide bond reserve. One-third of the statewide ceiling is
hereby set aside as a statewide bond reserve to be administered by the
director.
1. Allocation of the statewide bond reserve among state agencies,
local agencies and other issuers. The director shall transfer a portion
of the statewide bond reserve to the commissioner for allocation to and
use by local agencies and other issuers in accordance with the terms of
this section. The remainder of the statewide bond reserve may be
allocated by the director to state agencies in accordance with the terms
of this section.
2. Allocation of statewide bond reserve to local agencies or other
issuers.
a. Local agencies or other issuers may at any time apply to the
commissioner for an allocation from the statewide bond reserve. Such
application shall demonstrate:
(i) that the requested allocation is required under the code for the
interest earned on the bonds to be excluded from the gross income of
bondholders for federal income tax purposes;
(ii) that the local agency's remaining unused allocation provided
pursuant to section three of this act, and other issuer's remaining
unused allocation, or any available carryforward will be insufficient
for the specific project or projects for which the reserve allocation is
requested; and
(iii) that, except for those allocations made pursuant to section
eleven of this act to enable carryforward elections, the requested
allocation is reasonably expected to be used during the calendar year.
b. In reviewing and approving or disapproving applications, the
commissioner shall exercise discretion to ensure an equitable
distribution of allocations from the statewide bond reserve to local
agencies and other issuers. Prior to making a determination on such
applications, the commissioner shall notify and seek the recommendation
of the commissioner of housing and community renewal in the case of an
application related to the issuance of multi-family housing or mortgage
revenue bonds, and in the case of other requests, such state officers,
departments, divisions and agencies as the commissioner deems
appropriate.
c. Applications for allocations shall be made in such form and contain
such information and reports as the commissioner shall require.
3. Allocation of statewide bond reserve to state agencies. The
director may make an allocation from the statewide bond reserve to any
state agency. Before making any allocation of statewide bond reserve to
state agencies the director shall be satisfied:
a. that the allocation is required under the code for the interest
earned on the bonds to be excluded from the gross income of bondholders
for federal income tax purposes;
b. that the state agency's remaining unused allocation provided
pursuant to section four of this act or any available carryforward will
be insufficient to accommodate the specific bond issue or issues for
which the reserve allocation is requested; and
c. that, except for those allocations made pursuant to section eleven
of this act to enable carryforward elections, the requested allocation
is reasonably expected to be used during the calendar year.
* NB Repealed January 1, 1991
* § 6. Access to employment opportunities. 1. All issuers shall
require that any new employment opportunities created in connection with
industrial or manufacturing projects financed through the issuance of
qualified small issue bonds shall be listed with the New York state
department of labor job service division, and with the administrative
entity of the service delivery area created pursuant to the Job Training
Partnership Act (Pub. L. 97-300) in which the project is located. Such
listing shall be in a manner and form prescribed by the commissioner.
All issuers shall further require that for any new employment
opportunities created in connection with an industrial or manufacturing
project financed through the issuance of qualified small issue bonds by
such issuer, industrial or manufacturing firms shall first consider
persons eligible to participate in Federal Job Training Partnership Act
(Pub. L. 97-300) programs who shall be referred to the industrial or
manufacturing firm by administrative entities of service delivery areas
created pursuant to such act or by the job service division at the
department of labor. Issuers of qualified small issue bonds are required
to monitor compliance with the provisions of this section as prescribed
by the commissioner.
2. Nothing in this section shall be construed to require users of
qualified small issue bonds to violate any existing collective
bargaining agreement with respect to the hiring of new employees.
Failure on the part of any user of qualified small issue bonds to comply
with the requirements of this section shall not affect the allocation of
bonding authority to the issuer of the bonds or the validity or tax
exempt status of such bonds.
* NB Repealed January 1, 1991
* § 7. Overlapping jurisdictions. In a geographic area represented by
a county local agency and one or more sub-county local agencies, the
allocation granted by section three of this act with respect to such
area of overlapping jurisdiction shall be apportioned one-half to the
county local agency and one-half to the sub-county local agency or
agencies. Where there is a local agency for the benefit of a village
within the geographic area of a town for the benefit of which there is a
local agency, the allocation of the village local agency shall be based
on the population of the geographic area of the village, and the
allocation of the town local agency shall be based upon the population
of the geographic area of the town outside of the village.
Notwithstanding the foregoing, a local agency may surrender all or part
of its allocation for such calendar year to another local agency with an
overlapping jurisdiction. Such surrender shall be made at such time and
in such manner as the commissioner shall prescribe.
* NB Repealed January 1, 1991
* § 8. Ineligible local agencies. To the extent that any allocation of
the local agency set-aside would be made by this act to a local agency
which is ineligible to receive such allocation under the code or under
regulations interpreting the state volume ceiling provisions of the
code, such allocation shall instead be made to the political subdivision
for whose benefit that local agency was created.
* NB Repealed January 1, 1991
* § 9. Municipal reallocation. The chief executive officer of any
political subdivision or, if such political subdivision has no chief
executive officer, the governing board of the political subdivision for
the benefit of which a local agency has been established, may withdraw
all or any portion of the allocation granted by section three of this
act to such local agency. The political subdivision may then reallocate
all or any portion of such allocation, as well as all or any portion of
the allocation received pursuant to section eight of this act, to itself
or any other issuer established for the benefit of that political
subdivision or may assign all or any portion of the allocation received
pursuant to section eight of this act to the local agency created for
its benefit. The chief executive officer or governing board of the
political subdivision, as the case may be, shall notify the commissioner
of any such reallocation.
* NB Repealed January 1, 1991
* § 10. Year end allocation recapture. On or before October first of
each year, each state agency shall report to the director and each local
agency and each other issuer shall report to the commissioner the amount
of bonds subject to allocation under this act that will be issued prior
to the end of the then current calendar year, and the amount of the
issuer's then total allocation that will remain unused. As of October
fifteenth of each year, the unused portion of each local agency's and
other issuer's then total allocation as reported and the unallocated
portion of the set-aside for state agencies shall be recaptured and
added to the statewide bond reserve and shall no longer be available to
covered bond issuers except as otherwise provided herein. From October
fifteenth through the end of the year, each local agency or other issuer
having an allocation shall immediately report to the commissioner and
each state agency having an allocation shall immediately report to the
director any changes to the status of its allocation or the status of
projects for which allocations have been made which should affect the
timing or likelihood of the issuance of covered bonds therefor. If the
commissioner determines that a local agency or other issuer has
overestimated the amount of covered bonds subject to allocation that
will be issued prior to the end of the calendar year, the commissioner
may recapture the amount of the allocation to such local agency or other
issuer represented by such overestimation by notice to the local agency
or other issuer, and add such allocation to the statewide bond reserve.
The director may likewise make such determination and recapture with
respect to state agency allocations.
* NB Repealed January 1, 1991
* § 11. Allocation carryforward. 1. No local agency or other issuer
shall make a carryforward election utilizing any unused allocation
(pursuant to section 146(f) of the code) without the prior approval of
the commissioner. Likewise no state agency shall make or file such an
election, or elect to issue or carry forward mortgage credit
certificates, without the prior approval of the director.
2. On or before November fifteenth of each year, each state agency
seeking unused statewide ceiling for use in future years shall make a
request for an allocation for a carryforward to the director, whose
approval shall be required before a carryforward election is filed by or
on behalf of any state agency. A later request may also be considered by
the director, who may file a carryforward election for any state agency
with the consent of such agency.
3. On or before November fifteenth of each year, each local agency or
other issuer seeking unused statewide ceiling for use in future years
shall make a request for an allocation for a carryforward to the
commissioner, whose approval shall be required before a carryforward
election is filed by or on behalf of any local or other agency. A later
request may also be considered by the commissioner.
* NB Repealed January 1, 1991
* § 12. New York state bond allocation policy advisory panel.
1. There is hereby created a policy panel and process to provide
policy advice regarding the priorities for distribution of the statewide
ceiling.
2. The panel shall consist of five members, one designee being
appointed by each of the following: the governor, the president pro-tem
of the senate, the speaker of the assembly, the minority leader of the
senate and the minority leader of the assembly. The designee of the
governor shall chair the panel.
The panel shall monitor the allocation process through the year, and
in that regard, the division of the budget and the department of
economic development shall assist and cooperate with the panel as
provided in this section. The advisory process shall operate through the
issuance of advisory opinions by members of the panel as provided in
subdivision 6 of this section. A meeting may be held at the call of the
chair with the unanimous consent of the members.
3. a. Upon receipt of a request for allocation or a request for
approval of a carryforward election from the statewide reserve from a
local agency or other issuer, the commissioner shall, within five
working days, notify the panel of such request and provide the panel
with copies of all application materials submitted by the applicant.
b. Upon receipt of a request for allocation or a request for approval
of carryforward election from the statewide reserve from a state agency,
the director shall, within five working days, notify the panel of such
request and provide the panel with copies of all application materials
submitted by the applicant.
4. a. Following receipt of a request for allocation from a local
agency or other issuer, the commissioner shall notify the panel of a
decision to approve or exclude from further consideration such request,
and shall state his reasons. Such notification shall be made with or
after the transmittal of the information specified in subdivision 3 of
this section and at least five working days before formal notification
is made to the applicant.
b. Following receipt of a request for allocation from a state agency,
the director shall notify the panel of a decision to approve or exclude
from further consideration such request, and shall state his reasons.
Such notification shall be made with or after the transmission of the
information specified in subdivision 3 of this section and at least five
working days before formal notification is made to the state agency.
5. The requirements of subdivisions 3 and 4 of this section shall not
apply to adjustments to allocations due to bond sizing changes.
6. Special procedure for certain decisions. In the event that any
decision to approve or to exclude from further consideration a request
for allocation is made within ten working days of the end of the
calendar year and in the case of all requests for consent to a
carryforward election, the commissioner or director, as is appropriate,
shall provide the panel with the longest possible advance notification
of his action, consistent with the requirements of the code, and shall,
wherever possible, solicit the opinions of the members of the panel
before formally notifying any applicant of his action. Such notification
may be made by means of telephone communication to the members or by
written notice delivered to the Albany office of the appointing
authority of the respective members.
7. Advisory opinions by members of the panel. Upon notification by the
director or the commissioner, any member of the panel may, within five
working days, notify the commissioner or the director of any policy
objection concerning the expected action. If three or more members of
the panel shall submit policy objections in writing to the intended
action, the commissioner or the director shall respond in writing to the
objection prior to taking the intended action unless exigent
circumstances make it necessary to respond after the action has been
taken.
** 8. Reports. On or before the thirty-first day of January, in any
year, the director shall report to the members of the New York state
bond allocation policy advisory panel on the actual utilization of
volume cap for the issuance of bonds during the prior calendar year and
the amount of such cap allocated for carryforwards for future bond
issuance. The report shall include, for each local agency or other
issuer and each state agency the initial allocation, the amount of bonds
issued subject to the allocation, the amount of the issuer's allocation
that remained unused, the allocation of the statewide bond reserve,
carry forward allocations and recapture of allocations. Further, the
report shall include projections regarding private activity bond
issuance for state and local issuers for the calendar year, as well as
any recommendations for legislative action.
* * NB Repealed January 31, 1991
* NB Repealed January 1, 1991
* § 13. Expiration and repeal of certain provisions. The provisions of
sections one through twelve of this act shall expire and be deemed
repealed on January 1, 1991; except that the provisions of subdivision
eight of section twelve of this act shall expire and be deemed repealed
on January 31, 1991.
* NB Repealed January 1, 1991
* § 14. Severability. If any clause, sentence, paragraph, section, or
part of this act shall be adjudged by any court of competent
jurisdiction to be invalid, such judgment shall not affect, impair, or
invalidate the remainder thereof, but shall be confined in its operation
to the clause, sentence, paragraph, section, or part thereof directly
involved in the controversy in which such judgment shall have been
rendered.
* NB Repealed January 1, 1991