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.]
N.Y. Comp. Codes R. & Regs. Tit. 9 § 4.48