2023 New York Laws › WKC - Workers' Compensation › Article 7 - Miscellaneous Provisions. › 135 - Premium Credits for Safety Investment.

§  135.  Premium credits for safety investment. 1. An employer insured
by  a  licensed  insurer  or  the  state  insurance  fund  for  workers'
compensation  insurance  may apply for a credit against the premiums for
such coverage provided such employer  is  not  currently  receiving  any
statutory safety incentive or sanction authorized under this chapter for
amounts  invested  by  such  employer  in  the  creation of a safer work
environment which meets the requirements of this section. The credit may
be applied for a renewable period not to exceed three years. For any one
year, the credit shall equal, if actuarially appropriate, an  amount  up
to  five  percent  of  the total amount invested as calculated under the
provisions of this section but shall not exceed fifteen percent of  such
employer's  annual  earned  premium  for  that  year  in accordance with
workers' compensation rating board manual rates.  An  employer  applying
for  such  credit must provide evidence required by rules or regulations
promulgated  by  the  superintendent  of  financial  services  that  the
investment  would result in a safer work environment, with such evidence
to include a written opinion  by  a  certified  safety  professional,  a
certified  industrial  hygienist  or  a  licensed  professional engineer
describing the items included in the investment and an analysis  of  how
they will substantially enhance the safety of the work environment.
2.  It  shall  be  the  sole  responsibility  of the superintendent of
financial services, with the assistance of  a  committee,  to  determine
whether  an  employer  who  has  made  an  application is eligible for a
premium credit and the extent of  any  such  credit,  and  to  otherwise
assist  in  the  administration of the premium credit program, including
the  promulgation  of  department  of  financial  services   rules   and
regulations for the implementation of the program.
In addition to the superintendent of financial services, the committee
shall consist of:
(a) a representative from the department of labor;
(b) a representative from the department of economic development;
(c) a representative from the state insurance fund;
(d)  an  individual with an actuarial background and experience in the
field of workers' compensation;
(e) an individual with a background in safety engineering appointed by
the  governor  upon  recommendation  by  the  New  York  State  American
Federation of Labor-Congress of Industrial Organizations;
(f) an individual with a background in safety engineering appointed by
the governor upon recommendation of the Business Council of the State of
New York;
(g) an individual with a background in safety engineering appointed by
the governor upon recommendation of the insurance industry; and
(h)  an  additional  member of the committee with respect to any given
application for a premium credit shall be the  current  insurer  of  the
applicant.
All  departments,  divisions, boards, offices, and public corporations
of the state, and the workers' compensation rating board, shall  provide
such  data, information or other assistance as the committee may require
to fulfill its purposes.
The committee shall serve at the pleasure of the  governor  and  shall
receive  no  compensation  except  for reasonable and necessary expenses
incurred in  the  course  of  performing  the  official  duties  of  the
committee.  Such  expenses  shall  be paid from application fees paid in
accordance with rules and regulations promulgated by the  superintendent
of financial services.
3.  Premium credit calculations with respect to investments for safety
shall be based only upon tangible personal property and  other  tangible
property,  including  buildings  and  structural components of buildings

which make for a safer work environment, which are depreciable  pursuant
to  section one hundred sixty-seven of the internal revenue code, have a
useful life of four years or more, are acquired by purchase  as  defined
in  section  one  hundred  seventy-nine(d) of the internal revenue code,
have a situs in this state and are:
(a) principally used by the premium payer in the production  of  goods
by  manufacturing, processing, assembling, refining, mining, extracting,
farming,  agriculture,  horticulture,   floriculture,   viticulture   or
commercial fishing,
(b)  industrial  waste  treatment  facilities or air pollution control
facilities, used in the premium payer's trade or business, or
(c) research and development property.
For purposes of this section,  the  term  "goods"  shall  not  include
electricity.
4.  For  purposes  of  this  section,  the following definitions shall
apply:
(a) Manufacturing shall mean the process of working raw materials into
wares suitable for use or which gives new shapes,  new  quality  or  new
combinations  to  matter  which already has gone through some artificial
process by the use of machinery, tools,  appliances  and  other  similar
equipment.  Property  used  in  the  sale  of  goods  at  retail  or the
production of goods shall include machinery, equipment or other tangible
property which is principally used in the repair and  service  of  other
machinery,  equipment or other tangible property used principally in the
production of goods  and  shall  include  all  facilities  used  in  the
production  operation,  including  storage  of  material  to  be used in
production and of the products that are produced.
(b) Research and development property shall  mean  property  which  is
used  for  purposes  of  research and development in the experimental or
laboratory sense. Such purposes shall  not  be  deemed  to  include  the
ordinary  testing  or  inspection  of  materials or products for quality
control,  efficiency  surveys,  management  studies,  consumer  surveys,
advertising,  promotions,  or  research  in  connection  with  literary,
historical or similar projects.
(c)  Industrial  waste  treatment  facilities  shall   mean   property
constituting   facilities   for   the   treatment,   neutralization   or
stabilization of  industrial  waste  and  other  wastes  (as  the  terms
"industrial  waste" and "other wastes" are defined in section 17-0105 of
the environmental conservation law) from a point  immediately  preceding
the  point  of  such  treatment,  neutralization or stabilization to the
point of disposal, including  the  necessary  pumping  and  transmitting
facilities,  but  excluding  such  facilities  installed for the primary
purpose of salvaging materials which are  usable  in  the  manufacturing
process or are marketable.
(d)  Air pollution control facilities shall mean property constituting
facilities which remove, reduce, or render less noxious air contaminants
emitted from an air contamination source (as the terms "air contaminant"
and "air contamination source" are defined in  section  19-0107  of  the
environmental  conservation  law) from a point immediately preceding the
point of such removal, reduction or rendering to the point of  discharge
of  air  meeting  emission standards as established by the department of
environmental conservation, but excluding such facilities installed  for
the  primary  purpose  of  salvaging  materials  which are usable in the
manufacturing process or are marketable and excluding  those  facilities
which  rely  for the efficacy on dilution, dispersion or assimilation of
air contaminants in the ambient air  after  emission.  Such  term  shall
further  include flue gas desulfurization equipment and attendant sludge
disposal facilities, fluidized bed boilers, precombustion coal  cleaning

facilities  or other facilities that conform with this section and which
comply with the provisions of the state acid deposition control act  set
forth   in   title   nine  of  article  nineteen  of  the  environmental
conservation law.
5.  A  premium credit under this section shall be allowed with respect
to industrial waste  treatment  facilities  and  air  pollution  control
facilities only on condition that such facilities have been certified by
the  state  commissioner  of  environmental  conservation  or his or her
designated  representative,  pursuant  to  subdivision  one  of  section
17-0707  or  subdivision  one  of  section  19-0309 of the environmental
conservation  law,  as  complying  with  applicable  provisions  of  the
environmental  conservation  law,  the  public  health law and the state
sanitary code and codes, rules, regulations, permits  or  orders  issued
pursuant thereto.
6.  Tangible  personal property and other tangible property, including
buildings and structural components  of  buildings,  which  an  employer
leases  to  any  other person or corporation are not to be considered as
investments for safety in premium credit calculations. For  purposes  of
the  preceding  sentence,  any contract or agreement to lease or rent or
for a license  to  use  such  property  shall  be  considered  a  lease.
Provided, however, in determining whether an employer shall be allowed a
credit  under  this  section with respect to such property, any election
made with respect  to  such  property  pursuant  to  the  provisions  of
paragraph  eight of subsection (f) of section one hundred sixty-eight of
the  internal  revenue  code,  as  such  paragraph  was  in  effect  for
agreements  entered  into  prior  to  January  first,  nineteen  hundred
eighty-four, shall be disregarded.
7. Subject to the limitations provided  in  subdivision  one  of  this
section,  the  amount  of  a  premium  credit  shall be a percent of the
investment credit base. The investment credit base is the cost or  other
basis  for federal income tax purposes of tangible personal property and
other tangible property, including buildings and  structural  components
of  buildings,  as  described  in subdivision three of this section. The
amount of the percent to be applied against such investment credit  base
shall  be  based upon the useful life of such tangible personal property
and other tangible property, and the  extent  to  which  the  investment
would result in a safer work environment and upon such other actuarially
appropriate  evidence offered by the applicant that the investment would
result in a safer work  environment.  The  superintendent  of  financial
services  shall  promulgate  rules  and  regulations determining how the
percentage to be applied against the investment  credit  base  shall  be
calculated.
8. The superintendent of financial services shall promulgate rules and
regulations  for  the purpose of determining how to calculate the period
during which an applicant may receive a premium credit.
9. In the event an employer which applied for and received  a  premium
credit  pursuant to this section moves or relocates its business outside
of this state during the period in which it  receives  the  benefits  of
such  credit,  such  employer  shall  be responsible for repaying to the
insurer the entire amount of such credit already received.
10. An employer who is obligated to  but  does  not  comply  with  the
requirements  of  section one hundred thirty-four of this article is not
eligible to apply for premium credits under this section.
11. An employer shall be eligible for a credit  against  premiums  for
workers' compensation insurance coverage in an amount up to five percent
of  such premiums for such other safety measures that may be implemented
by an employer and which meet the standard for such  premium  credit  as
established  by  the  superintendent.  Such  safety  measures  shall not

include those measures provided for in this section of this article,  or
apply to such industries provided for in this section.