N.Y. GMU Law § 959 — New York Code / Act GMU / Article 18-B / Section 959
Responsibilities of the commissioner
Status: in_force

§ 959. Responsibilities of the commissioner. The commissioner shall:\n(a) After consultation with the director of the budget, the commissioner\nof labor, and the commissioner of taxation and finance, promulgate\nregulations, which, notwithstanding any provisions to the contrary in\nthe state administrative procedure act, may be adopted on an emergency\nbasis, governing (i) criteria of eligibility for empire zone\ndesignation, provided, however, that such criteria be approved by the\ndirector of the budget; (ii) the application process; (iii) the\ncertification by the commissioner as to the eligibility of business\nenterprises for benefits referred to in section nine hundred sixty-six\nof this article, which shall be governed by criteria including, but not\nlimited to: (1) whether the business enterprise, if certified, is\nreasonably likely to create new employment or prevent a loss of\nemployment in the zone, (2) whether such new employment opportunities\nwill be for individuals who will perform a substantial part of their\nemployment activities in the zone, (3) whether certification will have\nthe undesired effect of causing individuals to transfer from existing\nemployment with another business enterprise to similar employment with\nthe business enterprise so certified, and transferring existing\nemployment from one or more other municipalities, towns or villages in\nthe state, or transferring existing employment from one or more other\nbusinesses in the zone, (4) whether such enterprise is likely to enhance\nthe economic climate of the zone, (5) whether the commissioner of labor\nestablishes that such business enterprise, during the three years\npreceding the submission of an application for certification, has\nengaged in a substantial violation or a pattern of violations of laws\nregulating unemployment insurance, workers compensation, public work,\nchild labor, employment of minorities and women, safety and health, or\nother laws for the protection of workers as determined by final judgment\nof a judicial or administrative proceeding; (6) whether such business\nmeets the requirements of the cost benefit analysis as established in\nparagraph (p) of section nine hundred fifty-seven of this article, and\n(7) if the commissioner of labor establishes that the business\nenterprise has been found in a criminal proceeding to have violated, in\nthe previous three years, any of the laws referred to in subparagraph\nfive of this paragraph or regulations promulgated pursuant to such laws,\nthe conditions of any permit issued thereunder, or similar statute,\nregulation, order or permit condition of any other government agency,\nforeign or domestic, such business shall not be certified; provided,\nhowever, that a business enterprise that has shifted its operations, or\nsome portions thereof, from an area within New York state not designated\nas an empire zone or zone equivalent area to an area so designated shall\nnot be certified to receive such benefits except where such shift is\nentirely within a municipality and has been approved by the local\ngoverning body of such municipality or in situations where it has been\nestablished, after a public hearing, that extraordinary circumstances\nexist which warrant the relocation of a business, in whole or part, into\nan empire zone or a zone equivalent area from another municipality and\nthe municipality from which the business is relocating approves of such\nrelocation; or where such shift in operations is from a business\nincubator facility operated by a municipality or by a public or private\nnot-for-profit entity which provides space and business support services\nto newly established firms; and (iv) the decertification by the\ncommissioner, upon the recommendation of the commissioner of labor, so\nas to revoke the certification of business enterprises for benefits\nreferred to in section nine hundred sixty-six of this article with\nrespect to an empire zone or zone equivalent area upon a finding that\nthe business enterprise has committed substantial violations of laws for\nthe protection of workers including all federal, state and local labor\nlaws, rules or regulations; and (v) the decertification by the\ncommissioner so as to revoke the certification of business enterprises\nfor benefits referred to in section nine hundred sixty-six of this\narticle with respect to an empire zone or zone equivalent area upon a\nfinding of any one of the following: (1) the business enterprise made\nmaterial misrepresentations of fact on its application for certification\nor in any of its business annual reports, or the business enterprise\nfailed to disclose facts in its application for certification that would\nconstitute grounds for not issuing a certification; (2) the business\nenterprise has failed to construct, expand, rehabilitate or operate or\ninvest in its facility substantially in accordance with the\nrepresentations contained in its application for certification; (3) the\nbusiness enterprise has failed to create new employment or prevent a\nloss of employment in the empire zone or zone equivalent area; (4) where\napplicable, the business enterprise has failed to submit an annual\nreport after it has applied for zone tax benefits or program assistance\nbased on new hires or investments or failed to submit other information\nwhen due; (5) the business enterprise, if first certified pursuant to\nthis article prior to the first day of August, two thousand two, caused\nindividuals to transfer from existing employment with another business\nenterprise with similar ownership and located in New York state to\nsimilar employment with the certified business enterprise or if the\nenterprise acquired, purchased, leased, or had transferred to it real\nproperty previously owned by an entity with similar ownership,\nregardless of form of incorporation or organization; (6) the business\nenterprise has failed to provide economic returns to the state in the\nform of total remuneration to its employees (i.e. wages and benefits)\nand investments in its facility greater in value to the tax benefits the\nbusiness enterprise used and had refunded to it; or (7) the business\nenterprise has changed ownership or moved its operations out of the\nempire zone; said regulations shall provide that whenever any business\nenterprise is decertified with respect to an empire zone: (A) the date\ndetermined to be the earliest event constituting grounds for revoking\ncertification shall be the effective date of decertification; (B) its\ncertified single enterprise, if any, may also be decertified; and (C)\nthe commissioner shall notify the commissioner of taxation and finance\nthat such decertification has occurred, and such notification should\ninclude the effective date of such decertification and the zone or zone\nequivalent area to which such decertification applies; with respect to\nany business enterprise whose certification has been revoked pursuant to\nsubparagraph five or six of this paragraph, that revocation (I) will be\neffective for a taxable year beginning on or after January first, two\nthousand eight and before January first, two thousand nine and for\nsubsequent taxable years, unless the business enterprise is subsequently\nre-certified pursuant to part 11 of title 5 of the New York state codes,\nrules and regulations for a business enterprise for which a review is\nrequired to be conducted pursuant to subdivision (w) of this section in\ncalendar year two thousand nine, and (II) thereafter will be effective\nfor the taxable year during which the commissioner makes his or her\ndetermination (prior to any appeal) to revoke the certification of a\nbusiness enterprise and for subsequent taxable years;\n  (b) Receive and review applications for designation of areas as empire\nzones;\n  (c) Analyze and make recommendations to the empire zones designation\nboard for designation of areas as empire zones, provided, however, that\nall such areas recommended by the commissioner shall meet the\nrequirements of this article;\n  (d) Review new applications to replace any previously designated\nempire zone the designation of which has been terminated or withdrawn\nand file notice of the designation or redesignation of an empire zone or\nof the revision or termination of such designation with the applicant,\nthe department of taxation and finance, the secretary of state, with the\ncounty, city, town or village clerk of each county, city, town, or\nvillage, respectively, in which the empire zone is located, with the\nschool district governing body in which the empire zone is located, with\nthe commissioner of taxation and finance and with other state and local\nentities; provided, however, that such notice shall specify the date\nsuch action was taken and shall contain a description sufficient to\nidentify the empire zone, including the names of the abutting streets,\nroads, highways, bodies of water, or other identifying physical\nfeatures;\n  (e) Request, and shall receive from any department, division, board,\nbureau, commission, agency or public authority of the state such\nassistance as may be necessary to establish a procedure whereby\napplications submitted by business entities, community-based\norganizations, not-for-profit organizations, human service agencies,\nlabor unions and municipal agencies located within an empire zone\nrequesting financial and other assistance provided by state programs,\nincluding, but not limited to, capital development, human resource\ndevelopment, business assistance, job training and job placement shall,\nconsistent with federal law, be given priority over applications\nsubmitted by entities not located in empire zones;\n  (f) Establish a priority for the allocation of authority to issue\nprivate activity bonds for the benefit of municipalities and business\nenterprises located or to be located within empire zones;\n  (g) Coordinate, with the local empire zone administrative board and\nstate agencies and authorities, the provision of business development\nprograms and services for each empire zone in order to stimulate the\ncreation and development of new small businesses, including new small\nminority-owned and women-owned business enterprises, and may request and\nshall receive from any department, division, board, bureau, commission,\nagency or public authority of the state such assistance as may be\nnecessary;\n  (h) Coordinate with the comptroller and the commissioner of taxation\nand finance a linked deposit program. The comptroller and the\ncommissioner of taxation and finance are hereby authorized and empowered\nto enter into agreements with financial institutions located in or\nserving the empire zones, to provide for the deposit of funds\nadministered jointly by them in such institutions, at reduced rates of\nreturn to the state, in return for commitments by such institutions to\nbusinesses of loans of comparable amounts, at reduced interest rates,\nfor business development projects in the zones that will create or\npreserve jobs;\n  (i) Assist each local empire zone board in preparing a small business\nassistance plan as required by section nine hundred sixty-three of this\narticle and coordinate with the local empire zone administrative board\nand state agencies and authorities the development of small business\nprocurement, export and marketing programs for businesses within the\nempire zones;\n  (j) Promulgate regulations, in consultation with the commissioner of\nlabor, for program evaluation and coordinate implementation of an\nevaluation system, which is capable of compiling and analyzing accurate\nand consistent information necessary for an assessment of whether\nstatutory objectives and criteria are being met;\n  (k) Review performance objectives and progress in meeting objectives\nwith zone boards and zone administrative entities as part of the annual\nadministrative contract process;\n  (l) Assist zone boards and zone administrative entities to effect and\nimplement job training and social services agreements and programs\nprovided for in paragraphs (v), (vi) and (vii) of subdivision (a) of\nsection nine hundred sixty-three of this article and request and receive\nfrom any agency or authority of the state such assistance as may be\nnecessary to improve the delivery and coordination of human resource\ndevelopment programs to the zones;\n  (m) Assist zones in increasing their child care capacity and in\nplanning special care activities, including the provision of technical\nassistance by the department in planning for the provision of child care\nservices in the zones;\n  (n) Coordinate with the department of labor, the state education\ndepartment, the job training partnership council and agencies of the\nstate the inclusion in annual and biennial plans of such entities\nstrategies for increasing and improving human resource development\nservices on a priority basis, consistent with federal statutory and\nregulatory requirements, to residents of the zones and employees of zone\nbusinesses, including, but not limited to, the governor's plan for\ncoordination and special services of the job training partnership\ncouncil, the jobs plan and Wagner-Peyser annual plan for services of the\ndepartment of labor, and the career education state plan of the state\neducation department;\n  (o) Arrange with the job training partnership council the provision of\nthe workforce investment act funds for use within the zones with the\ncooperation of the service delivery areas in the governor's plan for\ncoordination and special services;\n  (p) Subject to the availability of funds, arrange for the allocation\nand reservation of funds from the infrastructure improvement programs of\nstate agencies and authorities to assist the zones to make public\nimprovements necessary for community, commercial, industrial and tourism\ndevelopment projects in support of zone revitalization;\n  (q) Systematically enlist other state agencies and authorities to\nparticipate in zone programs and projects and in cooperative planning of\ninteragency zone activities in support of zone revitalization efforts;\n  (r) Recommend for economic development loan and grant programs of the\ndepartment of economic development, urban development corporation, job\ndevelopment authority, and science and technology foundation special\nterms and conditions for viable zone projects and programs;\n  (s) Award preference to be given to applications submitted by or on\nbehalf of zones for entrepreneurial assistance programs under article\nnine of the omnibus economic development act of nineteen hundred\neighty-seven to support the creation of new entrepreneurial development\nand entrepreneurial support centers;\n  (t) Coordinate with the urban development corporation the creation of\na special category of assistance for zones within the regional economic\ndevelopment partnership program, which will make available economic\ndevelopment assistance grants for zone programs and activities,\nincluding, but not limited to, planning, service coordination, and local\ninstitutional capacity building for human resource development necessary\nfor economic revitalization; planning and development of small business\nincubators; job placement and preparedness programs for zones residents;\neducation and training programs for zone businesses; child care programs\nand projects supportive of business development; technical assistance\nfor minority and women-owned business development; training for zone\nofficials; business and tourism development and marketing programs; and\nother innovative programs and activities in support of economic and\ncommunity development within the zones;\n  (u) Assist in the development of a plan, in coordination with the\nhealth and financial services departments, to assist zones in obtaining\naffordable employee health insurance for small business enterprises\nlocated within the zone;\n  (v) Approve applications for qualification of a business enterprise as\nthe owner of a qualified investment project or as the owner of a\nsignificant capital investment project, as defined in subdivisions (s)\nand (t), respectively, of section nine hundred fifty-seven of this\narticle. As a condition for approval of such application, the\ncommissioner is authorized to specify certain requirements to be\nsatisfied as a condition for approval of such application as the\ncommissioner deems necessary to ensure that the project will make a\nsubstantial contribution to the economic development of this state. An\napplication for qualification of a business enterprise as the owner of a\nqualified investment must be submitted by December thirty-first, two\nthousand nine. An application for qualification of a business as the\nowner of a significant capital investment project as defined in\nsubdivision (t) of section nine hundred fifty-seven of this article,\nwhich application is submitted by an entity previously qualified by the\ncommissioner as the owner of a qualified investment project or an entity\nwhich is a related person, as that term is defined in section\n465(b)(3)(c) of the internal revenue code, to an entity previously\nqualified by the commissioner as the owner of a qualified investment\nproject, must be submitted by June thirtieth, two thousand eleven. No\napplications submitted after these dates may be approved; and\n  (w) Conduct a review during calendar year two thousand nine of all\nbusiness enterprises to determine whether the business enterprises\nshould be decertified pursuant to subparagraphs five and six of\nparagraph (v) of subdivision (a) of this section and the regulations\npromulgated under this article. After such review, the commissioner\nshall issue an empire zone retention certificate to each firm that the\ncommissioner determines is not subject to decertification under\nsubparagraphs five and six of paragraph (v) of subdivision (a) of this\nsection. The decertification referred to in subparagraph six of\nparagraph (v) of subdivision (a) of this section shall be based upon an\nanalysis of data contained in at least three business annual reports\nfiled by the business enterprise. If any business enterprise fails the\nanalysis described in the immediately preceding sentence, or if the\ncommissioner makes the finding described in subparagraph five of\nparagraph (v) of subdivision (a) of this section, the commissioner shall\nrevoke the certification of such business enterprise pursuant to\nparagraph (v) of subdivision (a) of this section and as specified\nherein; provided, however, the commissioner may consider, after\nconsultation with the director of the budget, and in his or her sole\ndiscretion, other economic, social and environmental factors when\nevaluating the costs and benefits of a project to the state and whether\ncontinued certification is warranted based on such factors. The\ncommissioner shall provide written notification to such business\nenterprise of his or her determination to revoke the certification,\nincluding the reasons therefor. Such notification shall state that the\nbusiness enterprise may appeal the determination by sending a written\nnotice to the empire zone designation board of such appeal no later than\nfifteen business days from the date of the commissioner's revocation\nnotification. Provided that the business enterprise appeals the\ncommissioner's determination within fifteen business days of the\ncommissioner's revocation notification, the business enterprise may\npresent a written submission to the empire zone designation board no\nlater than sixty days following the date the commissioner's revocation\nnotification was sent to the business enterprise explaining why its\ncertification should be continued. The empire zone designation board\nshall consider the explanation provided by the business enterprise, but\nshall only reverse the determination to revoke the business enterprise's\ncertification if the empire zone designation board unanimously finds\nthat there was sufficient evidence presented by the business enterprise\ndemonstrating that the commissioner's finding, with respect to\nsubparagraph six of paragraph (v) of subdivision (a) of this section,\nwas in error, or that, with respect to subparagraph five of paragraph\n(v) of subdivision (a) of this section, any extraordinary circumstances\noccurred which would justify the continued certification of the business\nenterprise.\n