NY Gen Mun L § 959 (2021)
2021 New York Laws GMU - General Municipal Article 18-B - New York State Empire Zones 959 - Responsibilities of the Commissioner.

§  959.  Responsibilities of the commissioner. The commissioner shall: (a) After consultation with the director of the budget, the commissioner of labor, and the  commissioner  of  taxation  and  finance,  promulgate regulations,  which,  notwithstanding  any provisions to the contrary in the state administrative procedure act, may be adopted on  an  emergency basis,   governing   (i)   criteria   of  eligibility  for  empire  zone designation, provided, however, that such criteria be  approved  by  the director  of  the  budget;  (ii)  the  application  process;  (iii)  the certification by the commissioner as  to  the  eligibility  of  business enterprises  for  benefits referred to in section nine hundred sixty-six of this article, which shall be governed by criteria including, but  not limited  to:  (1)  whether  the  business  enterprise,  if certified, is reasonably likely  to  create  new  employment  or  prevent  a  loss  of employment  in  the  zone, (2) whether such new employment opportunities will be for individuals who will perform a  substantial  part  of  their employment  activities  in the zone, (3) whether certification will have the undesired effect of causing individuals to  transfer  from  existing employment  with  another business enterprise to similar employment with the  business  enterprise  so  certified,  and   transferring   existing employment  from  one or more other municipalities, towns or villages in the state, or transferring existing employment from one  or  more  other businesses in the zone, (4) whether such enterprise is likely to enhance the  economic climate of the zone, (5) whether the commissioner of labor establishes that  such  business  enterprise,  during  the  three  years preceding  the  submission  of  an  application  for  certification, has engaged in a substantial violation or a pattern of  violations  of  laws regulating  unemployment  insurance,  workers compensation, public work, child labor, employment of minorities and women, safety and  health,  or other laws for the protection of workers as determined by final judgment of  a  judicial  or administrative proceeding; (6) whether such business meets the requirements of the cost benefit analysis  as  established  in paragraph  (p)  of section nine hundred fifty-seven of this article, and (7)  if  the  commissioner  of  labor  establishes  that  the   business enterprise  has been found in a criminal proceeding to have violated, in the previous three years, any of the laws referred  to  in  subparagraph five of this paragraph or regulations promulgated pursuant to such laws, the  conditions  of  any  permit  issued thereunder, or similar statute, regulation, order or permit condition of any  other  government  agency, foreign  or  domestic,  such  business shall not be certified; provided, however, that a business enterprise that has shifted its operations,  or some portions thereof, from an area within New York state not designated as an empire zone or zone equivalent area to an area so designated shall not  be  certified  to  receive such benefits except where such shift is entirely within a municipality  and  has  been  approved  by  the  local governing  body  of such municipality or in situations where it has been established, after a public hearing,  that  extraordinary  circumstances exist which warrant the relocation of a business, in whole or part, into an  empire  zone or a zone equivalent area from another municipality and the municipality from which the business is relocating approves of  such relocation;  or  where  such  shift  in  operations  is  from a business incubator facility operated by a municipality or by a public or  private not-for-profit entity which provides space and business support services to  newly  established  firms;  and  (iv)  the  decertification  by  the commissioner, upon the recommendation of the commissioner of  labor,  so as  to  revoke  the  certification  of business enterprises for benefits referred to in section nine  hundred  sixty-six  of  this  article  with respect  to  an  empire zone or zone equivalent area upon a finding that the business enterprise has committed substantial violations of laws for  the protection of workers including all federal, state and  local  labor laws,   rules  or  regulations;  and  (v)  the  decertification  by  the commissioner so as to revoke the certification of  business  enterprises for  benefits  referred  to  in  section  nine hundred sixty-six of this article with respect to an empire zone or zone equivalent  area  upon  a finding  of  any  one of the following: (1) the business enterprise made material misrepresentations of fact on its application for certification or in any of its business annual reports,  or  the  business  enterprise failed to disclose facts in its application for certification that would constitute  grounds  for  not  issuing a certification; (2) the business enterprise has failed to construct, expand, rehabilitate or  operate  or invest   in   its   facility   substantially   in  accordance  with  the representations contained in its application for certification; (3)  the business  enterprise  has  failed  to create new employment or prevent a loss of employment in the empire zone or zone equivalent area; (4) where applicable, the business enterprise  has  failed  to  submit  an  annual report  after it has applied for zone tax benefits or program assistance based on new hires or investments or failed to submit other  information when  due;  (5)  the business enterprise, if first certified pursuant to this article prior to the first day of August, two thousand two,  caused individuals  to  transfer from existing employment with another business enterprise with similar ownership and  located  in  New  York  state  to similar  employment  with  the  certified  business enterprise or if the enterprise acquired, purchased, leased, or had transferred  to  it  real property   previously   owned  by  an  entity  with  similar  ownership, regardless of form of incorporation or organization;  (6)  the  business enterprise  has  failed  to provide economic returns to the state in the form of total remuneration to its employees (i.e.  wages  and  benefits) and investments in its facility greater in value to the tax benefits the business  enterprise  used  and  had refunded to it; or (7) the business enterprise has changed ownership or moved  its  operations  out  of  the empire  zone;  said regulations shall provide that whenever any business enterprise is decertified with respect to an empire zone: (A)  the  date determined  to  be  the earliest event constituting grounds for revoking certification shall be the effective date of  decertification;  (B)  its certified  single  enterprise,  if any, may also be decertified; and (C) the commissioner shall notify the commissioner of taxation  and  finance that  such  decertification  has  occurred, and such notification should include the effective date of such decertification and the zone or  zone equivalent  area  to which such decertification applies; with respect to any business enterprise whose certification has been revoked pursuant to subparagraph five or six of this paragraph, that revocation (I) will  be effective  for  a  taxable year beginning on or after January first, two thousand eight and before January  first,  two  thousand  nine  and  for subsequent taxable years, unless the business enterprise is subsequently re-certified pursuant to part 11 of title 5 of the New York state codes, rules  and  regulations  for a business enterprise for which a review is required to be conducted pursuant to subdivision (w) of this section  in calendar  year  two thousand nine, and (II) thereafter will be effective for the taxable year during which the  commissioner  makes  his  or  her determination  (prior  to  any  appeal) to revoke the certification of a business enterprise and for subsequent taxable years;  (b) Receive and review applications for designation of areas as empire zones;  (c) Analyze and make recommendations to the empire  zones  designation board  for designation of areas as empire zones, provided, however, that all  such  areas  recommended  by  the  commissioner  shall   meet   the requirements of this article;  (d)  Review  new  applications  to  replace  any previously designated empire zone the designation of which has been  terminated  or  withdrawn and file notice of the designation or redesignation of an empire zone or of  the  revision or termination of such designation with the applicant, the department of taxation and finance, the secretary of state, with the county,  city,  town  or  village  clerk  of each county, city, town, or village, respectively, in which the empire zone  is  located,  with  the school district governing body in which the empire zone is located, with the  commissioner of taxation and finance and with other state and local entities; provided, however, that such notice  shall  specify  the  date such  action  was  taken  and  shall contain a description sufficient to identify the empire zone, including the names of the  abutting  streets, roads,   highways,  bodies  of  water,  or  other  identifying  physical features;  (e) Request, and shall receive from any department,  division,  board, bureau,  commission,  agency  or  public  authority  of  the  state such assistance  as  may  be  necessary  to  establish  a  procedure  whereby applications    submitted    by   business   entities,   community-based organizations, not-for-profit  organizations,  human  service  agencies, labor  unions  and  municipal  agencies  located  within  an empire zone requesting financial and other assistance provided  by  state  programs, including,  but  not  limited  to,  capital  development, human resource development, business assistance, job training and job placement  shall, consistent  with  federal  law,  be  given  priority  over  applications submitted by entities not located in empire zones;  (f) Establish a priority for the  allocation  of  authority  to  issue private  activity  bonds  for the benefit of municipalities and business enterprises located or to be located within empire zones;  (g) Coordinate, with the local empire zone  administrative  board  and state  agencies  and  authorities, the provision of business development programs and services for each empire zone in  order  to  stimulate  the creation  and  development  of new small businesses, including new small minority-owned and women-owned business enterprises, and may request and shall receive from any department, division, board, bureau,  commission, agency  or  public  authority  of  the  state  such assistance as may be necessary;  (h) Coordinate with the comptroller and the commissioner  of  taxation and   finance   a  linked  deposit  program.  The  comptroller  and  the commissioner of taxation and finance are hereby authorized and empowered to enter into agreements  with  financial  institutions  located  in  or serving   the  empire  zones,  to  provide  for  the  deposit  of  funds administered jointly by them in such institutions, at reduced  rates  of return  to  the state, in return for commitments by such institutions to businesses of loans of comparable amounts, at  reduced  interest  rates, for  business  development  projects  in  the  zones that will create or preserve jobs;  (i) Assist each local empire zone board in preparing a small  business assistance  plan as required by section nine hundred sixty-three of this article and coordinate with the local empire zone  administrative  board and  state  agencies  and  authorities the development of small business procurement, export and marketing programs  for  businesses  within  the empire zones;  (j)  Promulgate  regulations, in consultation with the commissioner of labor, for  program  evaluation  and  coordinate  implementation  of  an evaluation  system, which is capable of compiling and analyzing accurate and consistent  information  necessary  for  an  assessment  of  whether statutory objectives and criteria are being met;  (k)  Review  performance objectives and progress in meeting objectives with zone boards and zone administrative entities as part of the  annual administrative contract process;  (l)  Assist zone boards and zone administrative entities to effect and implement job training  and  social  services  agreements  and  programs provided  for  in  paragraphs  (v), (vi) and (vii) of subdivision (a) of section nine hundred sixty-three of this article and request and receive from any agency or authority of the state  such  assistance  as  may  be necessary  to  improve  the  delivery and coordination of human resource development programs to the zones;  (m) Assist zones in  increasing  their  child  care  capacity  and  in planning  special  care activities, including the provision of technical assistance by the department in planning for the provision of child care services in the zones;  (n) Coordinate with the  department  of  labor,  the  state  education department,  the  job  training  partnership council and agencies of the state the inclusion in  annual  and  biennial  plans  of  such  entities strategies  for  increasing  and  improving  human  resource development services on a priority basis,  consistent  with  federal  statutory  and regulatory requirements, to residents of the zones and employees of zone businesses,  including,  but  not  limited  to,  the governor's plan for coordination and  special  services  of  the  job  training  partnership council, the jobs plan and Wagner-Peyser annual plan for services of the department  of  labor,  and the career education state plan of the state education department;  (o) Arrange with the job training partnership council the provision of the workforce investment act funds for use within  the  zones  with  the cooperation  of  the  service  delivery areas in the governor's plan for coordination and special services;  (p) Subject to the availability of funds, arrange for  the  allocation and reservation of funds from the infrastructure improvement programs of state  agencies  and  authorities  to  assist  the  zones to make public improvements necessary for community, commercial, industrial and tourism development projects in support of zone revitalization;  (q) Systematically enlist other  state  agencies  and  authorities  to participate in zone programs and projects and in cooperative planning of interagency zone activities in support of zone revitalization efforts;  (r)  Recommend for economic development loan and grant programs of the department of economic development, urban development  corporation,  job development  authority,  and  science  and technology foundation special terms and conditions for viable zone projects and programs;  (s) Award preference to be given to applications submitted  by  or  on behalf  of  zones  for entrepreneurial assistance programs under article nine of  the  omnibus  economic  development  act  of  nineteen  hundred eighty-seven  to support the creation of new entrepreneurial development and entrepreneurial support centers;  (t) Coordinate with the urban development corporation the creation  of a  special category of assistance for zones within the regional economic development partnership program,  which  will  make  available  economic development   assistance   grants  for  zone  programs  and  activities, including, but not limited to, planning, service coordination, and local institutional capacity building for human resource development necessary for economic revitalization; planning and development of small  business incubators; job placement and preparedness programs for zones residents; education and training programs for zone businesses; child care programs and  projects  supportive  of business development; technical assistance for minority and women-owned business  development;  training  for  zone officials;  business and tourism development and marketing programs; and  other innovative programs and activities  in  support  of  economic  and community development within the zones;  (u)  Assist  in  the  development  of a plan, in coordination with the health and financial services departments, to assist zones in  obtaining affordable  employee  health  insurance  for  small business enterprises located within the zone;  (v) Approve applications for qualification of a business enterprise as the owner of a qualified  investment  project  or  as  the  owner  of  a significant  capital  investment project, as defined in subdivisions (s) and (t), respectively, of  section  nine  hundred  fifty-seven  of  this article.   As   a  condition  for  approval  of  such  application,  the commissioner  is  authorized  to  specify  certain  requirements  to  be satisfied  as  a  condition  for  approval  of  such  application as the commissioner deems necessary to ensure that  the  project  will  make  a substantial  contribution  to the economic development of this state. An application for qualification of a business enterprise as the owner of a qualified investment must be submitted  by  December  thirty-first,  two thousand  nine.  An  application  for qualification of a business as the owner  of  a  significant  capital  investment  project  as  defined  in subdivision  (t)  of  section  nine hundred fifty-seven of this article, which application is submitted by an entity previously qualified by  the commissioner as the owner of a qualified investment project or an entity which  is  a  related  person,  as  that  term  is  defined  in  section 465(b)(3)(c) of the internal  revenue  code,  to  an  entity  previously qualified  by  the  commissioner  as the owner of a qualified investment project, must be submitted by June thirtieth, two  thousand  eleven.  No applications submitted after these dates may be approved; and  (w)  Conduct  a  review  during calendar year two thousand nine of all business enterprises  to  determine  whether  the  business  enterprises should  be  decertified  pursuant  to  subparagraphs  five  and  six  of paragraph (v) of subdivision (a) of this  section  and  the  regulations promulgated  under  this  article.  After  such review, the commissioner shall issue an empire zone retention certificate to each firm  that  the commissioner   determines   is  not  subject  to  decertification  under subparagraphs five and six of paragraph (v) of subdivision (a)  of  this section.   The  decertification  referred  to  in  subparagraph  six  of paragraph (v) of subdivision (a) of this section shall be based upon  an analysis  of  data  contained  in at least three business annual reports filed by the business enterprise. If any business enterprise  fails  the analysis  described  in  the  immediately  preceding sentence, or if the commissioner  makes  the  finding  described  in  subparagraph  five  of paragraph (v) of subdivision (a) of this section, the commissioner shall revoke  the  certification  of  such  business  enterprise  pursuant  to paragraph (v) of subdivision  (a)  of  this  section  and  as  specified herein;   provided,   however,  the  commissioner  may  consider,  after consultation with the director of the budget, and in  his  or  her  sole discretion,  other  economic,  social  and  environmental  factors  when evaluating the costs and benefits of a project to the state and  whether continued   certification  is  warranted  based  on  such  factors.  The commissioner  shall  provide  written  notification  to  such   business enterprise  of  his  or  her  determination to revoke the certification, including the reasons therefor. Such notification shall state  that  the business  enterprise  may  appeal the determination by sending a written notice to the empire zone designation board of such appeal no later than fifteen business days from the date  of  the  commissioner's  revocation notification.   Provided   that  the  business  enterprise  appeals  the commissioner's  determination  within  fifteen  business  days  of   the commissioner's  revocation  notification,  the  business  enterprise may  present a written submission to the empire  zone  designation  board  no later  than  sixty days following the date the commissioner's revocation notification was sent to the  business  enterprise  explaining  why  its certification  should  be  continued.  The empire zone designation board shall consider the explanation provided by the business enterprise,  but shall only reverse the determination to revoke the business enterprise's certification  if  the  empire  zone designation board unanimously finds that there was sufficient evidence presented by the business  enterprise demonstrating   that   the   commissioner's  finding,  with  respect  to subparagraph six of paragraph (v) of subdivision (a)  of  this  section, was  in  error,  or that, with respect to subparagraph five of paragraph (v) of subdivision (a) of this section, any extraordinary  circumstances occurred which would justify the continued certification of the business enterprise.