Current through Register Vol. 46, No. 39, September 25, 2024
WHEREAS, the Deficit Reduction Act of 1984 establishes a
private activity bond ceiling on a per capita basis for New York State;
and
WHEREAS, the ceiling applies to private activity bonds
issued by both State and local agencies and will require that all such issues
be coordinated in order to comply with the ceiling; and
WHEREAS, the application of the ceiling to private activity
bond projects financed in New York State will require annual allocation
authorizations to State and local agencies, which may limit the ability of
certain issuers to finance projects; and
WHEREAS, the State should maximize the public benefit of
private activity bond issues and minimize conflicts among issuing agencies;
and
WHEREAS, the State should maximize the impact of business
development and job development incentives particularly on distressed areas of
the State; and
WHEREAS, the Deficit Reduction Act of 1984 authorizes the
governor of each state to proclaim a formula for allocating the private
activity bond volume limit among such governmental units in the state as have
authority to issue private activity bonds;
NOW, THEREFORE, I, Mario M. Cuomo, Governor of the State of
New York, by virtue of the authority vested in me by the Constitution and laws
of the State of New York and the Deficit Reduction Act of 1984, do hereby
proclaim and order as follows:
I.
Definitions.
A. Issuer shall mean a local
agency, State agency or other issuer.
B. Local agency shall mean 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.
C. State agency shall mean the Energy
Research and Development Authority, Job Development Authority, Environmental
Facility Corporation, 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 and United Nations
Development Corporation.
D. Other
issuer shall mean any agency, political subdivision or other entity, other than
a local agency or State agency, that is authorized to issue private activity
bonds.
E. Private activity bonds
shall mean private activity bonds as defined in section 621 of the Deficit
Reduction Act of 1984.
II. Aggregate Amount of Private Activity
Bonds.
A. Private activity bond limit for
local agencies-- in general. The private activity bond limit for local agencies
shall be an amount which bears the same ratio to two fifths (40%) of the
statewide ceiling for any calendar year as the population of the jurisdiction
of such local agency bears to the population of the entire State for any
calendar year.
B. Private activity
bond limit for State agencies-- in general. The private activity bond limit for
all State agencies shall be two fifths (40%) of the statewide ceiling for any
calendar year. The Director of the Budget shall administer allocations under
the State agency limit and may grant an allocation to any State
agency.
C. Overlapping
jurisdictions. In a geographic area represented by a county and a subcounty
local agency, the allocation granted by paragraph A of this article with
respect to such areas shall be split equally between the county and subcounty
local agency for any calendar year. Where there is a local agency representing
a village within the geographic area of a town which is represented by 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 elect to surrender all or part of its allocation for such calendar year to
another local agency with overlapping jurisdiction. Such election shall be made
at such time and in such manner as the Commissioner of Commerce shall
prescribe.
D. Municipal
reallocation. The chief executive officer of any municipality which a local
agency has been established to benefit may withdraw all or any portion of the
allocation granted by paragraph A of this article to such local agency and
reallocate all or any portion of such allocation to the municipality or other
issuer established to benefit that municipality.
E. Statewide bond reserve. One fifth (20%) of
the aggregate amount of private activity bonds authorized to be issued during
any one calendar year is hereby allocated to a statewide bond reserve to be
administered by the Director of the Budget.
1. Allocation of the statewide bond reserve
among State and local agencies and other issuers. The Director of the Budget
shall allocate a portion of the statewide bond reserve to the Commissioner of
Commerce for 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 of the Budget 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 of Commerce for an allocation from the
statewide bond reserve. Such application shall demonstrate:
(i) that in the case of a local agency, prior
to the close of the calendar year for which the allocation is requested, the
local agency's remaining unused allocation will be insufficient to finance a
specific project or projects; and
(ii) that the proposed project or projects
for which the allocation is requested constitute a valid public purpose and
would contribute to economic development in New York State.
(b) The Commissioner of
Commerce shall not approve any allocation from the statewide bond reserve to
finance any project to be used directly or indirectly for:
(i) a facility more than 25 percent of which
is used to make retail sales of goods or services to customers who personally
visit such facility to obtain goods or services, unless such facility is to be
located in a chronically depressed area, as defined by the Commissioner of
Commerce;
(ii) a facility more than
25 percent of which is occupied by doctors, lawyers or similar professionals
principally serving local markets, unless located in a chronically depressed
area as defined by the Commissioner of Commerce;
(iii) a facility primarily used for overnight
lodging, unless located in a chronically depressed area as defined by the
Commissioner of Commerce, or unless primarily used in support of tourism
development, as defined by the Commissioner of Commerce;
(iv) a facility licensed and regulated
pursuant to article 28 of the Public Health Law.
(c) In reviewing and approving or
disapproving applications, the Commissioner of Commerce shall exercise his
discretion to ensure an equitable distribution of allocations from the
statewide bond reserve to local agencies and other issuers.
(d) Applications for allocations shall be
made in such form and contain such information as the Commissioner of Commerce
shall require.
(3)
Allocation of statewide bond reserve to State agencies. The Director of the
Budget may grant an allocation from the statewide bond reserve to any State
agency
(4) Year-end allocation
adjustment. On or before November 1, 1984, each State agency shall report to
the Director of the Budget, and each local agency and each other issuer shall
report to the Commissioner of Commerce, the amount of bonds subject to
allocation that will be issued prior to the end of the 1984 calendar year, and
the amount of the issuer's allocation that will remain unused. As of November
15, 1984, the unused portion of each issuer's allocation as reported and the
unallocated portion of private activity bond limit for State agencies shall be
added to the statewide bond reserve and shall no longer be available to the
issuers except as otherwise provided herein. On or before December 1, 1984,
each issuer shall update its report on its bond issuance plans and any
additional portion of each issuer's allocation that will remain unused as so
reported shall be added to the statewide bond reserve as of December 1, 1984.
Notwithstanding the foregoing, if the Commissioner of Commerce determines that
a local agency or other issuer has overestimated the amount of bonds subject to
allocation that will be issued prior to the end of the calendar year, he may
withdraw 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.
F. Carry-forward of allocation.
(1) No local agency or other issuer shall
exercise its option to carry forward a portion of its annual allocation for use
in future years (pursuant to Internal Revenue Code, section 103[n][10]) without
the prior approval of the Commissioner of Commerce, and no State agency shall
exercise such an option without the prior approval of the Director of the
Budget.
(2) On or before November
15th of each year, each State agency seeking to carry forward an allocation for
use in future years shall make a request for such a carry-forward to the
Director of the Budget. A later request may also be considered by the director.
The director may authorize a carry-forward for any State agency.
(3) On or before November 15th of each year,
each local agency or other issuer seeking to carry forward an allocation for
use in future years shall make a request for such a carry-forward to the
Commissioner of Commerce. A later request may also be considered by the
commissioner. The commissioner may authorize a carry-forward for any local
agency or other issuer.
G. Access to employment opportunities. It is
the policy of New York State to assure that the use of private activity bonds
results in the creation of new job opportunities for poor and chronically
unemployed New Yorkers.
(1) All issuers shall
require that any new employment opportunities created in connection with
industrial or commercial projects financed through the issuance of private
activity 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 ( P.L. 97-300) in
which the project is located. Such listing shall be in a manner and form
prescribed by the Commissioner of Commerce.
(2) Each State agency shall further require
that, to the extent practicable and feasible, at least 10 percent of any new
jobs created in connection with an industrial or commercial project financed
through the issuance of private activity bonds by such agency in amounts of one
million dollars or more shall be filled by persons eligible for service under
the Job Training Partnership Act.
(3) Issuers of private activity bonds are
required to monitor compliance with the provisions of this section as
prescribed by the Commissioner of Commerce.
(4) Nothing in this section shall be
construed to require users of private activity bonds to violate any existing
collective bargaining agreement with respect to the hiring of new
employees.
(5) Failure on the part
of any user of private activity bonds to comply with the requirements of this
section shall not affect the allocation of bonding authority to the issuing
agency, or the validity or tax exempt status of such bonds.
III. Procedures and
Guidelines.
The Director of the Budget and Commissioner of Commerce are
authorized and directed to establish procedures and guidelines to implement the
provisions of this order. Such procedures and guidelines shall set forth the
amount of the statewide private activity bond limit and provide guidance for
issuers, procedures for making applications, standards and criteria for
granting approvals, allocations and carry- forwards of allocations, and a
method of tracking the issuance of private activity bonds by issuers. Such
procedures and guidelines may address any other matters as the Director of the
Budget and Commissioner of Commerce deem appropriate.
IV. Effectiveness.
Nothing contained in this order shall be deemed to
supersede, alter or impair any provision of the Deficit Reduction Act of 1984
or any regulations promulgated thereunder. If any provision of this order is
adjudged or ruled invalid, such judgment or ruling shall not affect any other
provisions of this order.
V. Retroactivity.
Any allocation to a local agency pursuant to paragraph A of
article II of this order shall be reduced by the amount of private activity
bonds subject to allocation which were issued by such local agency prior to the
effective date of this order. If the amount of such bonds issued prior to the
effective date of this order exceeds the allocation pursuant to such paragraph
A, the statewide bond reserve shall be reduced by the amount of such excess.
The statewide bond reserve shall also be reduced by the amount of any private
activity bonds subject to allocation which were issued by any other
issuer.
VI. Expiration.
The provisions of this order shall expire on the effective
date of legislation enacted into law for the purpose of allocating the private
activity bond ceiling under the Deficit Reduction Act of 1984 and be of no
further effect after that date.
Signed: Mario M. CuomoDated: October 3, 1984
[FN*] [Revoked by Executive Order No. 9 (David A.
Paterson), infra.]
[Revoked by Executive Order No. 2 (Andrew M. Cuomo),
infra.]
