EDU-35-10-00019-P Qualified School Construction Bonds (QSCB) and Qualified Zone Academy Bonds (QZAB)

9/1/10 N.Y. St. Reg. EDU-35-10-00019-P

NEW YORK STATE REGISTER

VOLUME XXXII, ISSUE 35

September 01, 2010

RULE MAKING ACTIVITIES

EDUCATION DEPARTMENT

PROPOSED RULE MAKING

NO HEARING(S) SCHEDULED

 

I.D No. EDU-35-10-00019-P

Qualified School Construction Bonds (QSCB) and Qualified Zone Academy Bonds (QZAB)

PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following proposed rule:

Proposed Action:

Amendment of section 155.22 of Title 8 NYCRR.

Statutory authority:

Education Law, sections 101, 207, 305(1) and (2); and 26 USC sections 54E and 54F

Subject:

Qualified School Construction Bonds (QSCB) and Qualified Zone Academy Bonds (QZAB).

Purpose:

Establish criteria for QSCB and to update QZAB provisions.

Substance of proposed rule (Full text is posted at the following State website:http://www.emsc.nysed.gov/facplan/ documents/QZAB_WEBSITE_POSTING_1_091610.doc):

The Commissioner of Education proposes to amend section 155.22 of the Commissioner's Regulations, effective December 8, 2010, relating to Qualified School Construction Bonds issued pursuant to 26 USC section 54F and Qualified Zone Academy Bonds issued pursuant to 26 USC sections 1397E and 54E. The following is a summary of the substance of the proposed amendment.

Section 155.22 is revised to organize the regulation into subdivision (a), relating to Qualified Zone Academy Bonds, and subdivision (b), relating to Qualified School Construction Bonds. The provisions relating to Qualified Zone Academy Bonds (QZAB) are revised to provide for a separate Charter school allocation from the QZAB State limitation amount. The QZAB provisions are also updated to include QZAB issued under 26 USC 54E, as added by Pub.L. 110-343, 122 Stat. 3765, 3869. Prior to the addition of section 54E, QZAB were issued pursuant to 26 USC section 1397E.

Provisions relating to Qualified School Construction Bonds (QSCB) are established in section 155.22(b).

Section 155.22(b)(1) sets forth the purpose of the subdivision, to establish procedures for the allocation and issuance of QSCB as authorized by 26 USC section 54F.

Section 155.22(b)(2) sets forth definitions for terms used in the subdivision.

Section 155.22(b)(3) establishes procedures for allocating respective amounts of the QSCB State limitation amount to local educational agencies LEAs), including provisions for allocating to the large city school districts, charter schools, and all other LEAs.

Section 155.22(b)(4) establishes procedures for making adjustments for unused allocations.

Section 155.22(b)(5) requires QSCB to be used within three years after issuance.

Section 155.22(b)(6) requires that capital construction projects to be financed through the issuance of QSCB must be submitted for review to the Office of Facilities Planning in the State Education Department.

Section 155.22(b)(7) provides that capital construction projects funded in whole or in part with QSCB and involving the repair, renovation or alternation of public school facilities that are approved by the Commissioner, shall be eligible to receive building aid pursuant to the provisions of Education Law section 3602(6).

Text of proposed rule and any required statements and analyses may be obtained from:

Chris Moore, State Education Department, Office of Counsel, State Education Building Room 148, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Data, views or arguments may be submitted to:

John B. King, Jr. Senior Deputy Commissioner P-12 Education, State Education Department, State Education Building Room 125, 89 Washington Ave., Albany, NY 12234, [phone], email: [e-mail]

Public comment will be received until:

45 days after publication of this notice.

Regulatory Impact Statement

STATUTORY AUTHORITY:

Education Law section 101 continues the existence of the Education Department, with the Board of Regents as its head, and authorizes the Board of Regents to appoint the Commissioner of Education as the chief administrative officer of the Department, which is charged with the general management and supervision of public schools and the educational work of the State.

Education Law section 207 empowers the Board of Regents and the Commissioner of Education to adopt rules and regulations to carry out the laws of the State regarding education and the functions and duties conferred on the State Education Department by law.

Education Law section 305(1) provides that the Commissioner of Education is the chief executive officer of the State system of education and of the Board of Regents, and charged with the enforcement of all general and special laws relating to the educational system of the State and the execution of all educational policies determined by the Board of Regents. Section 305(2) provides that the Commissioner shall have general supervision over all schools and institutions subject to the Education Law or any statute relating to education.

26 USC section 54E, as added by section 313(a) of Title III of Division C of the Emergency Economic Stabilization Act of 2008, Pub.L.110-343, 122 Stat. 3765, 3869, establishes a federal tax credit to holders of qualified zone academy bonds issued for qualified purposes under the statute, establishes a national zone academy bond limitation for such credit, and provides for the allocation of such limitation amount to state education agencies for allocation to qualified zone academies within each respective state.

26 USC section 54F, as added by section 1521(a) of Part III of Subtitle F of Title 1 of Div. B of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub.L.111-5, provides for the issuance of Qualified School Construction Bonds for the construction, rehabilitation, or repair of a public school facility or for the acquisition of land on which such a facility is to be constructed with part of the proceeds of such issue, by a State or local government within the jurisdiction of which such school is located; establishes a national qualified school construction bond limitation, and provides for the allocation of such limitation amount to state education agencies for allocation to bond issuers within each respective state.

LEGISLATIVE OBJECTIVES:

The proposed rule is consistent with the above statutes and is necessary for the implementation of the provisions of 26 USC section 54F in that it will establish criteria for the allocation of the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2), and update the Qualified Zone Academy provisions in Commissioner's Regulation section 155.22 to include Qualified Zone Academy Bonds issued under 26 USC 54E.

NEEDS AND BENEFITS:

Internal Revenue Code section 54F (26 USC section 54F), as added by section 1521(a) of Title 1 of Part III of Subtitle F of the American Recovery and Reinvestment Act of 2009 (ARRA), Pub.L. 111-5, provides for the issuance of Qualified School Construction Bonds for the construction, rehabilitation, or repair of a public school facility or for the acquisition of land on which such a facility is to be constructed with part of the proceeds of such issue, by a State or local government within the jurisdiction of which such school is located. The statute establishes a national qualified school construction bond limitation for each of the 2009 and 2010 calendar years. Within such national bond limitation amount, the Secretary of the U.S. Treasury will allocate state limitation amounts to each state for the state's allocation to bond issuers within the state.

New York State is home to three city school districts, New York City, Buffalo and Rochester, that are large enough to qualify as part of the 100 largest nationwide school districts, and as such, these districts will receive direct federal Qualified School Construction Bond Allocations from the U.S. Treasury Secretary. Additionally, New York State received $192 Million in the 2009 and $178 Million in the 2010 calendar years to allocate to other districts in the State that did not receive a direct federal allocation.

The 2009 allocation was retained by the State to fund State expenditures for local district capital projects. The purpose of the proposed amendment to section 155.22 of the Commissioner's Regulations is to prescribe the procedures for New York State to allocate its $174,782,000 2010 state limitation amount to those school district bond issuers not receiving a direct federal allocation.

In addition, the proposed amendment revises the provisions relating to Qualified Zone Academy Bonds (QZAB) to provide for a separate charter school allocation from the QZAB State limitation amount. The QZAB provisions are also updated to include QZAB issued under 26 USC 54E, as added by Pub.L. 110-343, 122 Stat. 3765, 3869. Prior to the addition of section 54E, QZAB were issued pursuant to 26 USC section 1397E.

COSTS:

(a) Costs to State government: None. The proposed rule does not impose any additional costs on the State beyond those inherent in the authorizing statutes, 26 USC sections 54E and 54F. Although school districts participating in the QSCB and QZAB programs will be entitled to building aid for capital construction projects as they are under existing law, it is anticipated that there will be a reduced cost to the State as there is no interest on the bonds and the State will not be obligated to pay its share of interest on the borrowing.

(b) Costs to local government: The proposed rule does not impose any costs on local government. It merely provides for a method for the Commissioner to allocate the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2), and updates the Qualified Zone Academy provisions in Commissioner's Regulation section 155.22 to include Qualified Zone Academy Bonds (QZAB) issued under 26 USC 54E. Participation in both the QSCB and QZAB programs is voluntary.

(c) Costs to private, regulated parties: None. The proposed rule does not impact private parties in any way.

(d) Cost to the regulating agency for implementation and continued administration of this rule: None. The proposed rule does not impose any additional costs on the State Education Department beyond those imposed by the authorizing statutes, 26 USC sections 54E and 54F. It merely amends Commissioner's Regulation section 155.22 to establish procedures for allocation of the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) issued under 26 USC section 54F to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2), and amends the Qualified Zone Academy Bond (QZAB) provisions to provide for a separate Charter school allocation from the QZAB State limitation amount, and to update the QZAB provisions to include Qualified Zone Academy Bonds (QZABs) issued under 26 USC 54E. Participation in both the QSCB and QZAB programs is voluntary.

LOCAL GOVERNMENT MANDATES:

The proposed rule will not impose any program, service, duty or responsibility on local governments. It merely amends Commissioner's Regulation section 155.22 to establish procedures for allocation of the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) issued under 26 USC section 54F to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2), and amends the Qualified Zone Academy Bond (QZAB) provisions to provide for a separate Charter school allocation from the QZAB State limitation amount, and to update the QZAB provisions to include Qualified Zone Academy Bonds (QZABs) issued under 26 USC 54E. Participation in both the QSCB and QZAB programs is voluntary.

PAPERWORK:

Local educational agencies, other than those located in cities having a population of more than one hundred twenty-five thousand inhabitants, may apply in a form prescribed and by a date established by the commissioner for approval to receive an allocation from the State limitation amount allocation. Such application shall include, but is not limited to:

(1) a certification by the local educational agency that the bonds to be issued meet the requirements for a qualified school construction bond pursuant to 26 USC section 54F(a).

(2) a description of the capital construction project(s) to be financed through the issuance of qualified school construction bonds; and

(3) the written approval of the superintendent of schools and the Board of Education for such bond issuance.

DUPLICATION:

The proposed amendment does not duplicate existing State or Federal regulations.

ALTERNATIVES:

There are no significant alternatives and none were considered. The proposed rule is necessary to establish the procedures for New York State to allocate its state limitation amount to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2), and to update the Qualified Zone Academy provisions to include Qualified Zone Academy Bonds (QZAB) issued under 26 USC 54E.

FEDERAL STANDARDS:

The proposed rule does not exceed any minimum standards of the Federal government for the same or similar subject areas. The proposed rule is consistent with the authority provided under 26 USC section 54F to establish a process for the allocation of the State's Qualified School Construction Bond state limitation amount to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2), and to update provisions in the Commissioner's Regulation regarding Qualified Zone Academy provisions to include Qualified Zone Academy Bonds (QZAB) issued under 26 USC 54E.

COMPLIANCE SCHEDULE:

The proposed amendment does not place any compliance requirements on school districts. It merely amends Commissioner's Regulation section 155.22 to establish procedures for allocation of the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) issued under 26 USC section 54F to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2), and amends the Qualified Zone Academy Bond (QZAB) provisions to provide for a separate Charter school allocation from the QZAB State limitation amount, and to update the QZAB provisions to include Qualified Zone Academy Bonds (QZABs) issued under 26 USC 54E. Participation in both the QSCB and QZAB programs is voluntary.

Regulatory Flexibility Analysis

Small Businesses:

The proposed rule relates to the process by which local educational agencies gain access to a program entitled Qualified School Construction Bonds (QSCB), established in 26 USC section 54F, for the construction, rehabilitation, or repair of a public school facility or for the acquisition of land on which such a facility is to be constructed with part of the proceeds of such bond issue. The purchaser of the bonds receives a Federal tax credit in lieu of interest payments on the bonds. The proposed rule merely provides for a method for the Commissioner to allocate the State limitation amount for the issuance of QSCB pursuant to 26 USC section 54F, and updates the Qualified Zone Academy provisions in Commissioner's Regulation section 155.22 to include Qualified Zone Academy Bonds (QZAB) issued under 26 USC 54E. The proposed amendment does not impose any adverse economic impact, reporting, record keeping or other compliance requirements on small businesses. Because it is evident from the nature of the proposed rule that it does not affect small businesses, no further measures were needed to ascertain that fact and none were taken. Accordingly, a regulatory flexibility analysis for small businesses is not required and one has not been prepared.

Local Governments:

EFFECT OF RULE:

The proposed rule applies to all public school districts and boards of cooperative educational services in the State.

COMPLIANCE REQUIREMENTS:

The proposed rule will not impose any compliance requirements on local governments. It merely provides for a method for the Commissioner to allocate the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) issued under 26 USC section 54F to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2). In addition, the proposed amendment revises the provisions relating to Qualified Zone Academy Bonds (QZAB) to provide for a separate Charter school allocation from the QZAB State limitation amount. The QZAB provisions are also updated to include QZAB issued under 26 USC 54E, as added by Pub.L. 110-343, 122 Stat. 3765, 3869. Prior to the addition of section 54E, QZAB were issued pursuant to 26 USC section 1397E. Participation in both the QSCB and QZAB programs is voluntary.

Local educational agencies, other than those located in cities having a population of more than one hundred twenty-five thousand inhabitants, may apply in a form prescribed and by a date established by the commissioner for approval to receive an allocation from the State limitation amount allocation. Such application shall include, but is not limited to:

(1) a certification by the local educational agency that the bonds to be issued meet the requirements for a qualified school construction bond pursuant to 26 USC section 54F(a).

(2) a description of the capital construction project(s) to be financed through the issuance of qualified school construction bonds; and

(3) the written approval of the superintendent of schools and the Board of Education for such bond issuance.

PROFESSIONAL SERVICES:

The proposed rule does not impose any additional professional services requirements.

COMPLIANCE COSTS:

The proposed rule does not impose any costs on local government. It merely provides for a method for the Commissioner to allocate the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) issued under 26 USC section 54F to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2). In addition, the proposed amendment revises the provisions relating to Qualified Zone Academy Bonds (QZAB) to provide for a separate Charter school allocation from the QZAB State limitation amount. The QZAB provisions are also updated to include QZAB issued under 26 USC 54E, as added by Pub.L. 110-343, 122 Stat. 3765, 3869. Prior to the addition of section 54E, QZAB were issued pursuant to 26 USC section 1397E. Participation in both the QSCB and QZAB programs is voluntary.

ECONOMIC AND TECHNOLOGICAL FEASIBILITY:

The proposed rule does not impose any new economic or technological requirements on local governments.

MINIMIZING ADVERSE IMPACT:

The proposed rule does not impose any compliance requirements or compliance costs on local governments. It merely provides for a method for the Commissioner to allocate the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) issued under 26 USC section 54F to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2). In addition, the proposed amendment revises the provisions relating to Qualified Zone Academy Bonds (QZAB) to provide for a separate Charter school allocation from the QZAB State limitation amount. The QZAB provisions are also updated to include QZAB issued under 26 USC 54E, as added by Pub.L. 110-343, 122 Stat. 3765, 3869. Prior to the addition of section 54E, QZAB were issued pursuant to 26 USC section 1397E. Participation in both the QSCB and QZAB programs is voluntary.

LOCAL GOVERNMENT PARTICIPATION:

Comments on the proposed rule were solicited from school districts through the offices of the district superintendents of each supervisory district in the State, and from the chief school officers of the five big city school districts.

Rural Area Flexibility Analysis

TYPES AND ESTIMATED NUMBER OF RURAL AREAS:

The proposed rule applies to all school districts and boards of cooperative educational services in the State, including the 44 rural counties with less than 200,000 inhabitants and the 71 towns in urban counties with a population density of 150 persons per square mile or less.

REPORTING, RECORDKEEPING AND OTHER COMPLIANCE REQUIREMENTS; AND PROFESSIONAL SERVICES:

The proposed rule will not impose any compliance requirements on local governments. It merely provides for a method for the Commissioner to allocate the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) issued under 26 USC section 54F to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2). In addition, the proposed amendment revises the provisions relating to Qualified Zone Academy Bonds (QZAB) to provide for a separate Charter school allocation from the QZAB State limitation amount. The QZAB provisions are also updated to include QZAB issued under 26 USC 54E, as added by Pub.L. 110-343, 122 Stat. 3765, 3869. Prior to the addition of section 54E, QZAB were issued pursuant to 26 USC section 1397E. Participation in both the QSCB and QZAB programs is voluntary.

Local educational agencies, other than those located in cities having a population of more than one hundred twenty-five thousand inhabitants, may apply in a form prescribed and by a date established by the commissioner for approval to receive an allocation from the State limitation amount allocation. Such application shall include, but is not limited to:

(1) a certification by the local educational agency that the bonds to be issued meet the requirements for a qualified school construction bond pursuant to 26 USC section 54F(a).

(2) a description of the capital construction project(s) to be financed through the issuance of qualified school construction bonds; and

(3) the written approval of the superintendent of schools and the Board of Education for such bond issuance.

The proposed amendment will not impose any additional professional services requirements.

COMPLIANCE COSTS:

The proposed rule does not impose any costs on rural areas. It merely provides for a method for the Commissioner to allocate the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) issued under 26 USC section 54F to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2). In addition, the proposed amendment revises the provisions relating to Qualified Zone Academy Bonds (QZAB) to provide for a separate Charter school allocation from the QZAB State limitation amount. The QZAB provisions are also updated to include QZAB issued under 26 USC 54E, as added by Pub.L. 110-343, 122 Stat. 3765, 3869. Prior to the addition of section 54E, QZAB were issued pursuant to 26 USC section 1397E. Participation in both the QSCB and QZAB programs is voluntary.

MINIMIZING ADVERSE IMPACT:

The proposed rule does not impose any compliance requirements or compliance costs on rural areas. The proposed rule does not impose any compliance requirements or compliance costs on local governments. It merely provides for a method for the Commissioner to allocate the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) issued under 26 USC section 54F to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2). In addition, the proposed amendment revises the provisions relating to Qualified Zone Academy Bonds (QZAB) to provide for a separate Charter school allocation from the QZAB State limitation amount. The QZAB provisions are also updated to include QZAB issued under 26 USC 54E, as added by Pub.L. 110-343, 122 Stat. 3765, 3869. Prior to the addition of section 54E, QZAB were issued pursuant to 26 USC section 1397E. Participation in both the QSCB and QZAB programs is voluntary.

RURAL AREA PARTICIPATION:

Copies of the proposed amendment have been distributed to members of the Department's Rural Advisory Committee, which includes representatives of school districts in rural areas.

Job Impact Statement

The proposed amendment relates to the process by which local educational agencies gain access to a program entitled Qualified School Construction Bonds (QSCB), established in 26 USC section 54F, for the construction, rehabilitation, or repair of a public school facility or for the acquisition of land on which such a facility is to be constructed with part of the proceeds of such bond issue. The purchaser of the bonds receives a Federal tax credit in lieu of interest payments on the bonds. The proposed amendment merely provides for a method for the Commissioner to allocate the State limitation amount for the issuance of Qualified School Construction Bonds (QSCB) issued under 26 USC section 54F to those school district bond issuers not receiving a direct federal allocation pursuant to 26 USC section 54(F)(d)(2). In addition, the proposed amendment revises the provisions relating to Qualified Zone Academy Bonds (QZAB) to provide for a separate Charter school allocation from the QZAB State limitation amount. The QZAB provisions are also updated to include QZAB issued under 26 USC 54E, as added by Pub.L. 110-343, 122 Stat. 3765, 3869. Prior to the addition of section 54E, QZAB were issued pursuant to 26 USC section 1397E. Participation in both the QSCB and QZAB programs is voluntary.

The proposed amendment will not have an adverse impact on jobs or employment opportunities. Because it is evident from the nature of the amendment that it will have a positive impact, or no impact, on jobs or employment opportunities, no further steps were needed to ascertain those facts and none were taken. Accordingly, a job impact statement is not required and one has not been prepared.