S T A T E   O F   N E W   Y O R K
________________________________________________________________________

                                  9693

                          I N  A S S E M B L Y

                             March 23, 2012
                               ___________

Introduced  by  M.  of  A.  MAGNARELLI -- (at request of the Division of
  Housing & Community Renewal) -- read once and referred to the  Commit-
  tee on Local Governments

AN  ACT  in relation to redistributing 2011 bond volume allocations made
  pursuant to section 146 of the federal tax  reform  act  of  1986;  in
  relation  to  allocation  of the unified state bond volume ceiling; in
  relation to enacting the private activity bond allocation act of 2012;
  and providing for the repeal of  certain  provisions  upon  expiration
  thereof

  THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:

  Section 1. Short title. This act shall be known and may  be  cited  as
the "private activity bond allocation act of 2012".
  S  2.  Legislative  findings  and  declaration. The legislature hereby
finds and declares that the federal tax reform act of 1986 established a
statewide bond volume ceiling on the  issuance  of  certain  tax  exempt
private  activity  bonds  and  notes  and,  under certain circumstances,
governmental use bonds and notes issued by  the  state  and  its  public
authorities,  local governments, agencies which issue on behalf of local
governments, and certain other issuers. The federal tax  reform  act  of
1986 establishes a formula for the allocation of the bond volume ceiling
which  was  subject to temporary modification by gubernatorial executive
order until December 31, 1987. Such act also permits state  legislatures
to  establish,  by  statute,  an  alternative formula for allocating the
volume ceiling. Bonds and notes subject to the volume ceiling require an
allocation from the state's annual volume ceiling in  order  to  qualify
for federal tax exemption.
  It  is  hereby  declared to be the policy of the state to maximize the
public benefit through the issuance of private activity  bonds  for  the
purposes  of,  among  other  things, allocating a fair share of the bond
volume ceiling upon initial allocation and from a bond reserve to  local
agencies  and for needs identified by local governments; providing hous-
ing and promoting economic  development;  job  creation;  an  economical
energy  supply;  and resource recovery and to provide for an orderly and
efficient volume ceiling allocation process for state and local agencies
by establishing an alternative formula for making such allocations.

              

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD14301-02-2

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  S 3. 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 internal
revenue code of 1986, as amended.
  3. "Code" means the internal revenue code of 1986, as amended.
  4. "Commissioner" means the commissioner of the New York state depart-
ment 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 develop-
ment 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,  the  New  York  state
energy  research and development authority, the New York job development
authority, the New York state environmental facilities corporation,  the
New  York  state urban development corporation and its subsidiaries, the
Battery Park city authority, the port authority  of  New  York  and  New
Jersey,  the  power  authority  of  the state of New York, the dormitory
authority of the state of New York, the New York state  housing  finance
agency,  the  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.
  13. "Future allocations" means allocations of statewide ceiling for up
to two future years.
  14. "Multi-year housing development project" means a project (a) which
qualifies  for covered bonds; (b) which is to be constructed over two or
more years; and (c) in which at least twenty  percent  of  the  dwelling
units will be occupied by persons and families of low income.
  S  4.  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.
  S 5. 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

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state agencies and may grant an allocation  to  any  state  agency  upon
receipt of an application in such form as the director shall require.
  S  6.  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 allo-
cated 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  four  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
twelve of this act to enable carryforward elections, the requested allo-
cation is reasonably expected to be used during the calendar  year,  and
the requested future allocation is reasonably expected to be used in the
calendar year to which the future allocation relates.
  (b)  In  reviewing  and  approving  or  disapproving applications, the
commissioner shall exercise discretion to ensure an  equitable  distrib-
ution  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  presi-
dent  and  chief executive officer of the New York state housing finance
agency 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  direc-
tor  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 five 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 twelve
of this act to enable carryforward elections, the  requested  allocation
is  reasonably  expected  to  be  used during the calendar year, and the

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requested future allocation is reasonably expected to  be  used  in  the
calendar year to which the future allocation relates.
  S  7. Access to employment opportunities. 1. All issuers shall require
that any new employment opportunities created in connection with  indus-
trial  or manufacturing projects financed through the issuance of quali-
fied small issue bonds shall be listed with the New York  state  depart-
ment  of  labor and with the one-stop career center established pursuant
to the federal Workforce Investment Act (Pub. L.  No.  105-220)  serving
the  locality  in  which the employment opportunities are being created.
Such listing shall be in a manner and form prescribed by the commission-
er. All issuers shall further require that for any new employment oppor-
tunities 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 Workforce Investment Act (Pub. L. No.
105-220) programs who shall be referred to the industrial or manufactur-
ing  firm  by one-stop centers in local workforce investment areas or by
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 bargain-
ing 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.
  S 8. Overlapping jurisdictions. In a geographic area represented by  a
county local agency and one or more sub-county local agencies, the allo-
cation  granted by section four 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.
  S 9. 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.
  S 10. Municipal reallocation. The chief executive officer of any poli-
tical subdivision or, if such political subdivision has no chief  execu-
tive  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 four 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 nine of this act, to  itself  or

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any  other issuer established for the benefit of that political subdivi-
sion or may assign all or any portion of the allocation received  pursu-
ant  to  section  nine  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.
  S 11. Future allocations for multi-year housing development  projects.
1.  In addition to other powers granted under this act, the commissioner
is authorized to make the  following  future  allocations  of  statewide
ceiling  for  any  multi-year  housing development project for which the
commissioner also makes an  allocation  of  statewide  ceiling  for  the
current  year under this act or for which, in the event of expiration of
provisions of this act described in section eighteen  of  this  act,  an
allocation  of volume cap for a calendar year subsequent to such expira-
tion shall have been made under section 146 of the code:   (a) to  local
agencies  from the local agency set-aside (but only with the approval of
the chief executive officer of the political subdivision  to  which  the
local  agency  set-aside  relates  or  the governing body of a political
subdivision having no chief executive officer) and (b) to other  issuers
from  that portion, if any, of the statewide bond reserve transferred to
the commissioner by the director. Any  future  allocation  made  by  the
commissioner shall constitute an allocation of statewide ceiling for the
future  year  specified  by the commissioner and shall be deemed to have
been made on the first day of the future year so specified.
  2. In addition to other powers granted under this act, the director is
authorized to make future allocations  of  statewide  ceiling  from  the
state agency set-aside or from the statewide bond reserve to state agen-
cies for any multi-year housing development project for which the direc-
tor  also makes an allocation of statewide ceiling from the current year
under this act or for which, in the event of expiration of provisions of
this act described in section eighteen of this  act,  an  allocation  of
volume  cap for a calendar year subsequent to such expiration shall have
been made under section 146 of the  code,  and  is  authorized  to  make
transfers  of  the statewide bond reserve to the commissioner for future
allocations to other issuers for multi-year housing development projects
for which the commissioner has made an allocation of  statewide  ceiling
for  the  current  year.  Any  such future allocation or transfer of the
statewide bond reserve for future allocation made by the director  shall
constitute  an allocation of statewide ceiling or transfer of the state-
wide bond reserve for the future years specified  by  the  director  and
shall be deemed to have been made on the first day of the future year so
specified.
  3.  (a)  If  an  allocation  made with respect to a multi-year housing
development project is not used by October  fifteenth  of  the  year  to
which  the  allocation  relates, the allocation with respect to the then
current year shall be  subject  to  recapture  in  accordance  with  the
provisions  of  section  twelve  of this act, and in the event of such a
recapture, unless a carryforward election by another issuer  shall  have
been  approved by the commissioner or a carryforward election by a state
agency shall have been approved by the director, all future  allocations
made with respect to such project pursuant to subdivision 1 or 2 of this
section shall be canceled.
  (b) The commissioner and the director shall have the authority to make
future allocations from recaptured current year allocations and canceled
future  allocations  to  multi-year  housing  development  projects in a
manner consistent with the provisions of this act. Any such future allo-

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cation shall, unless a carryforward election  by  another  issuer  shall
have  been  approved by the commissioner or a carryforward election by a
state agency shall have been approved by the director,  be  canceled  if
the  current year allocation for the project is not used by December 31,
2013.
  (c) The commissioner  and  the  director  shall  establish  procedures
consistent  with  the provisions of this act relating to carryforward of
future allocations.
  4. The aggregate future allocations from either of the two  succeeding
years  shall  not exceed six hundred fifty million dollars for each such
year.
  S 12. 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  overes-
timated  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.
  S  13.  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 carryforward mortgage credit certif-
icates, 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 commis-
sioner, 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.

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  S 14. New York state bond allocation policy advisory panel. 1.   There
is  hereby created a policy advisory panel and process to provide policy
advice regarding the priorities for distribution of the statewide  ceil-
ing.
  2.  The  panel  shall  consist  of  five  members,  one designee being
appointed by each of the following: the governor, the  temporary  presi-
dent  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 subdivisions 6 and 7 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  work-
ing  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 the commissioner shall state the 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  the  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.  In  the  event  that  any  decision  to approve or to exclude from
further consideration a request for allocation is made within ten  work-
ing 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 the 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  the
action.  Such  notification  may  be made by means of telephone communi-
cation to the members or by  written  notice  delivered  to  the  Albany
office of the appointing authority of the respective members.
  7.  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

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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.  On  or  before  the  first day of March, 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 allo-
cated  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  allo-
cation,  the amount of the issuer's allocation that remained unused, the
allocation of the statewide bond reserve, carryforward  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.
  S  15.  Severability.  If any clause, sentence, paragraph, section, or
part of this act shall be adjudged by any court of  competent  jurisdic-
tion  to  be invalid, such judgment shall not affect, impair, or invali-
date 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.
  S  16.  Notwithstanding any provisions of this act to the contrary (1)
provided that a local agency or other issuer certifies  to  the  commis-
sioner  on or before October 1, 2012 that it has issued private activity
bonds described in this section and the amount thereof which used state-
wide ceiling, a commitment or allocation of statewide ceiling to a local
agency or other issuer made to or so used by such local agency or  other
issuer  pursuant to the federal tax reform act of 1986 on or after Janu-
ary 1, 2012 and prior to the effective date of this act,  in  an  amount
which  exceeds the local agency set-aside established by section four of
this act, shall be first chargeable to the statewide bond reserve estab-
lished pursuant to section six of this act,  and  (2)  a  commitment  or
allocation  of  statewide  ceiling  to a state agency made to or used by
such agency pursuant to the internal revenue code,  as  amended,  on  or
after January 1, 2012 and prior to the effective date of this act, shall
be  first  chargeable to the state agency set-aside established pursuant
to section five of this act, and,  thereafter,  to  the  statewide  bond
reserve established by section six of this act.
  S  17.  Nothing  contained  in  this act shall be deemed to supersede,
alter or impair any allocation used by or committed by the  director  or
commissioner  to a state or local agency or other issuer pursuant to the
federal tax reform act of 1986 and prior to the effective date  of  this
act.
  S  18. This act shall take effect immediately; provided, however, that
sections three through ten, twelve, thirteen and fourteen  of  this  act
shall  expire January 1, 2014 when upon such date the provisions of such
sections shall be deemed repealed; except that the provisions of  subdi-
vision  8  of  section  fourteen  of this act shall expire and be deemed
repealed March 1, 2014 and the provisions of subdivisions  2  and  3  of
section  thirteen of this act shall expire and be deemed repealed Febru-
ary 15, 2014.