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

                                  9033

                          I N  A S S E M B L Y

                             March 10, 2014
                               ___________

Introduced  by  M. of A. MAGNARELLI -- (at request of the New York State
  Homes and Community Renewal) -- read once and referred to the  Commit-
  tee on Local Governments

AN  ACT  in relation to redistributing 2013 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, and
  in relation to enacting the private activity bond  allocation  act  of
  2014;  and providing for the repeal of certain provisions upon expira-
  tion 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 2014".
  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
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. That 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,  amount  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

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

                                                           LBD13841-01-4

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efficient volume ceiling allocation process for state and local agencies
by establishing an alternative formula for making such allocations.
  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 code.
  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.

A. 9033                             3

  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
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 agen-
cies,  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 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

A. 9033                             4

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.
  S  7. Access to employment opportunities. 1. All issuers shall require
that any new employment opportunities created  in  connection  with  the
industrial  or  manufacturing  projects financed through the issuance of
qualified small issue bonds shall be listed  with  the  New  York  state
department  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
commissioner. All issuers shall further require that for any new employ-
ment  opportunities created in connection with an industrial or manufac-
turing 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 manufacturing 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

A. 9033                             5

allocation received pursuant to section nine of this act, to  itself  or
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 one or two  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

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future  allocations  to  multi-year  housing  development  projects in a
manner consistent with the provisions of this act. Any such future allo-
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,
2015.
  (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

A. 9033                             7

is  filed  by or on behalf of any local or other agency. A later request
may also be considered by the commissioner.
  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 six and seven of this section. A meet-
ing 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  three 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 three of this section and at least
five working days before formal notification is made to the state  agen-
cy.
  5.  The  requirements  of  subdivisions three and four of this section
shall not apply to adjustments to allocations due to bond sizing  chang-
es.
  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.

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  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
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 July, in any year, the director shall
report to the members of the New York state bond allocation policy advi-
sory 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, 2014 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,  2014  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, 2014 and prior to the effective date  of
this act, shall be first chargeable to the state agency set-aside estab-
lished  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 July 1, 2016 when upon such date  the  provisions  of  such
sections  shall be deemed repealed; except that the provisions of subdi-
visions 2 and 3 of section thirteen of this  act  shall  expire  and  be
deemed repealed February 15, 2016.