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

                                   440

                      Seventh Extraordinary Session

                            I N  S E N A T E

                              June 28, 2009
                               ___________

Introduced by COMMITTEE ON RULES -- (at request of the Governor) -- read
  twice  and  ordered  printed,  and when printed to be committed to the
  Committee on Rules

AN ACT in relation to redistributing 2008 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
  2009 and providing for the expiration of certain provisions 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 2009".
  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,  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-

 EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                      [ ] is old law to be omitted.
                                                           LBD09538-06-9
              

S. 440                              2

ing and promoting economic  development;  job  creation;  an  economical
energy  supply;  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.
  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.

S. 440                              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 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 the 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

S. 440                              4

  (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
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, 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

S. 440                              5

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
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   10-a.   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 seventeen 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 seventeen 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  eleven  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.

S. 440                              6

  (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-
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,
2009.
  (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  11.  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 12. 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  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-

S. 440                              7

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.
  S  13. 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  throughout  the  year,  and in that regard, the division of the
budget and the department of economic development shall assist and coop-
erate 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
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 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-

S. 440                              8

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
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,  and
the  allocation  of the statewide bond reserve, carryforward allocations
and recapture of allocations.  Further, the report shall include projec-
tions regarding private activity  bond  issuance  for  state  and  local
issuers for the calendar year, as well as any recommendations for legis-
lative action.
  S  14.  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  15.  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, 2009 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, 2009 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, 2009 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  16.  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  17. This act shall take effect immediately; provided, however, that
sections three through thirteen of this  act  shall  expire  January  1,
2010;  except  that the provisions of subdivision eight of section thir-
teen of this act shall expire March 1, 2010 and the provisions of subdi-

S. 440                              9

visions two and three of section twelve of this act shall expire  Febru-
ary 15, 2010, and, provided further that section ten-a of this act shall
continue in full force and effect and shall be subject to the applicable
provisions  of this act notwithstanding the expirations of law set forth
in this section.