2023 New York Laws › PAB - Private Activity Bond 47/90

* PRIVATE ACTIVITY BOND ALLOCATION ACT OF 1990
 
Section 1.  Short title.
2.  Definitions.
3.  Local agency set-aside.
4.  State agency set-aside.
5.  Statewide bond reserve.
6.  Access to employment opportunities.
7.  Overlapping jurisdictions.
8.  Ineligible local agencies.
9.  Municipal reallocation.
10. Year end allocation recapture.
11. Allocation carryforward.
12. New York state bond allocation policy advisory panel.
13. Expiration and repeal of certain provisions.
14. Severability.
 
* NB Repealed January 1, 1991
*  § 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* NB Repealed January 1, 1991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