N.Y. Comp. Codes R. & Regs. tit. 5 § 10.2

Current through Register Vol. 46, No. 45, November 2, 2024

Section 10.2 - Definitions

(a) Applicant means the county, city, town or village submitting an application in the manner authorized by local law for designation of an area as an empire zone.

(b) Applicant municipality means the county, city, town or village that applied for and received empire zone designation.

(c) Chief executive means:

(1) a county executive or manager of a county;

(2) in a county not having a county executive or manager, the chairperson or other presiding officer of the county legislative body;

(3) a mayor of a city or village, except where a city or village has a manager, it shall mean such a manager; or

(4) a supervisor of a town, except where a town has a manager, it shall mean such manager.

(d) Commissioner means the Commissioner of Economic Development.

(e) Community development projects mean projects sponsored by not-for-profit organizations which have been approved by the zone board, which will advance the zone development plan. For purposes described in sections 210.20, 606 (l), 1456 (d) and 1511 (h) of the Tax Law, such projects shall be limited to child care programs serving zone residents and businesses; community development projects in direct support of economic development and business revitalization activities, such as commercial revitalization projects; and business development activities of local development corporations.

(f) Concurring municipality means a city, town or village that is required to agree with the applicant municipality's proposed addition or removal of empire zone acreage from within such city, town or village's municipal borders.

(g) Cost-benefit analysis means a method of determining whether to certify a business enterprise based on the business enterprise's projected job creation and/or investment in the zone, versus the total amount of empire zone tax benefits the business enterprise will potentially be allowed to use and have refunded to it and shall be a ratio of at least 10:1 for manufacturing enterprises and 20:1 for all other business enterprises, the numerator of which is the sum of:

(1) the estimated value of all wages and benefits paid for the first three years of certification to all existing and projected employees of the business enterprise in the zone; and

(2) the estimated value of capital investments for the first three years of certification in the zone, and the denominator of which is the estimated amount of total empire zone tax benefits that may be used and may be refunded for the first three years of certification.

(h) Department means the Department of Economic Development.

(i) Empire zone means an area within the State that has been designated as an empire zone pursuant to article 18-B of the General Municipal Law.

(j) Zone equivalent area means an area designated as such pursuant to former subdivision (bb) of section 959 of the General Municipal Law.

(k) Empire zone capital tax credits or zone capital tax credits means tax credits available pursuant to sections 210.20, 606 (l), 1456 (d) and 1511 (h) of the Tax Law.

(l) Human resource development means job preparation and placement, skills training, education for zone residents and employees of zone businesses, child and family care services and facilities, and activities to improve the health benefits and other benefits provided by zone businesses to their employees.

(m) Local empire zone administrative board means the entity designated by the applicant that is responsible for recommending business enterprises for certification pursuant to section 959 (a)(iii) of the General Municipal Law and for monitoring, evaluating and coordinating all empire zone benefits on behalf of the applicant. Such entity shall consist of at least six members, and shall be representative of local businesses, organized labor, community organizations, financial institutions, local educational institutions and residents of the empire zone.

(n) Minority business enterprise shall have the same meaning as provided in section 310 of the Executive Law.

(o) Minority group member shall have the same meaning as provided in section 310 of the Executive Law.

(p) Empire zone capital tax credits or zone capital tax credits means tax credits available pursuant to sections 210.20, 606 (1), 1456 (d) and 1511 (h) of the Tax Law.

(q) Qualified investment means the contribution of property to a corporation in exchange for original issue capital stock or other ownership interest, the contribution of property to a partnership in exchange for an interest in the partnership, and similar contributions to any other type of business entity not in corporate or partnership form in exchange for an ownership interest in such an entity.

(r) Women-owned business enterprise shall have the same meaning as provided in section 310 of the Executive Law.

(s) Zone administrative entity means a community-based local development corporation or entity contracting with the local empire zone board pursuant to section 963 (a)(viii) of the General Municipal Law or the municipality in which the zone is located in those instances where the municipality actively participates in the local administration of the zone program.

(t) Zone capital corporation means an entity incorporated for the purpose of raising funds through private and public grants, donations or investments, to be used in making investments in and loans to certified zone businesses to encourage the establishment or expansion of such businesses, thereby providing new job opportunities within an empire zone.

(u) Regionally significant project means:

(1) a manufacturer projecting the creation of 50 or more net new jobs in the State of New York;

(2) an agri-business or high tech or biotech business making a capital investment of $10 million and creating 20 or more net new jobs in the State of New York;

(3) a financial or insurance services or distribution center creating 300 or more net new jobs in the State of New York; or

(4) a clean energy research and development enterprise.

Such business shall be eligible as a regionally significant project as determined by the local empire zone administrative board and the commissioner, provided however, to be eligible as a regionally significant project the business seeking such status must be a business that exports a substantial portion of its products or services outside of the State and where at least 60 percent of the business's product/service is, or would be, sold, delivered or provided to customers/clients that are outside of the metropolitan statistical area if the project would be located in a community that is within a metropolitan statistical area, or outside of the county, if the project would be located in a community that is not part of a metropolitan statistical area. A regionally significant project would not be eligible for a business that is the retail or service operations of such enterprise or that is otherwise captive to the local market. Other projects may be considered by the empire zone designation board.

(v) Clean energy research and development enterprise means any electric generating facility that used pulverized coal technology, circulating fluidized bed technology or integrated gasification combined cycle technology and that is capable of capturing carbon dioxide for sequestration or capable of being retrofitted to capture carbon dioxide for sequestration.

(w) Qualified investment project means a project:

(1) located within an empire zone;

(2) at which 500 or more jobs will be created, provided such jobs are new to the State and are in addition to any other jobs previously created by the owner of such project in the State;

(3) which will consist of tangible personal property and other tangible property, including buildings and structural components of buildings, described in subparagraphs (i), (ii), (iii), (iv) and clause (A) or (C) of subparagraph (v) of paragraph (b) of subdivision 12-B of section 210 of the Tax Law, the basis of which for Federal income tax purposes will equal or exceed $750 million. Provided however, the owner of such project does not employ more than 200 persons in the State at the time such project is commenced.

(x) Significant capital investment project means a project:

(1) located within an empire zone;

(2) which will be either a newly constructed facility or a newly constructed addition to or expansion of a qualified investment project, consisting of tangible personal property and other tangible property, including buildings and structural components of buildings, described in subparagraphs (i), (ii), (iii), (iv) and clause (A) or (C) of subparagraph (v) of paragraph (b) of subdivision 12-B of section 210 of the Tax Law, the basis of which for Federal income tax purposes will equal or exceed $750 million;

(3) which is constructed after the basis for Federal income tax purposes of the property comprising such qualified investment project equals or exceeds $750 million; and

(4) at which 500 or more jobs will be created, provided such jobs are new to the State and are in addition to any other jobs previously created by the owner of such project in the State.

(y) Change of ownership shall include a reformation, reorganization or acquisition of the certified business enterprise where an owner of that enterprise, or a related person or affiliate of that enterprise, does not retain, directly or indirectly, any percent of the ownership interest or control of the enterprise formed as a result of the reformation, reorganization or acquisition.

(z) Zone development plan means a plan submitted for approval to the commissioner by the local empire zone administrative board and shall demonstrate the methods by which the applicant intends to promote the development of new business and the expansion of existing business within the empire zone. Elements of the plan shall include, but not be limited to, the following:

(1) a statement indicating how empire zone designation would assist in the revitalization of the area in which such zone is proposed to be located;

(2) a description of the method by which industrial development agencies or other public finance agencies shall grant a preference for allocation of private activity bonding authority for projects located in the proposed empire zone;

(3) a description of proposals for infrastructure improvements and investments and a timetable for their completion;

(4) a statement identifying those local tax incentives proposed to be offered within the zone;

(5) a description of a procedure to expedite the issuance of any required local permits or licenses;

(6) a description of other activities to be undertaken by municipal agencies, business entities, not-for-profit corporations, community-based organizations or any other persons, which are designed to promote private sector business investment and job development in the empire zone, and a description of the job training or job placement services to be made available to empire zone residents in need of such training or services and a description of the process for listing all new jobs through the appropriate Department of Labor division then providing employment services;

(7) an inventory of real property located within the proposed empire zone that is owned by a municipality or the State and is currently unused by the municipality or the State;

(8) a description of the business development programs and services to be available to stimulate the creation of new small businesses, including new small minority and women business enterprises;

(9) a description of efforts that will be undertaken to prevent or discourage the displacement of residents of the proposed empire zone and a description of provisions to identify and serve the needs of displaced workers;

(10) a description of activities designed to ensure the meaningful participation of minority and women business enterprises in empire zone development activities;

(11) a description of provisions for the participation of not-for-profit and business corporations in the development of the plan and in strategies for implementation of the plan;

(12) a description of the marketing strategy to be employed by the applicant to promote business development in the zone and the resources to be committed by the applicant and other organizations to the implementation of such strategy;

(13) a description of the method by which the applicant will evaluate the success of any activities to be undertaken in the proposed empire zone; provided, however, that the applicant shall take into consideration the factors upon which the selection of the area was based in any evaluation;

(14) a description of provisions for participation in and allocation of funds by the affected local workforce investment board and administrative entity established pursuant to the Workforce Investment Act of 1998 (P.L. 105-220, 29 U.S.C. 2801 et seq., as amended) to provide workforce development and job training in the zone;

(15) a statement of the reasons why the particular geographic configuration of the zone was selected;

(16) a description of the structure and duties of the local zone administrative board to be established within each empire zone;

(17) a description of the special programs to be operated by educational institutions and other training entities in the area to prepare and train zone residents for employment by businesses located within and outside the zone including five-year job creation targets, goals for community hires residing within or near the zone, and goals for targeted hires;

(18) a statement from the appropriate regional development council setting forth the specific resources to be allocated for business development in the zone;

(19) a description of facilities for licensed and certified child day care for the children of persons engaged in training for employment in, or employed in, the zone;

(20) a description of specific strategies and priorities for economic revitalization of the zone and of indicators to be used to measure performance against objectives;

(21) a statement of human resource development goals for the empire zone and specific strategies for achieving them;

(22) a description of how the applicant will use zone designation to coordinate economic development programs and providers at the local level to service the zone;

(23) a description of the organizational actions to be taken by the local empire zone administrative board and zone administrative entities to implement specified business, community and human resource development goals and strategies;

(24) a description of the financial commitments which the applicant is prepared to make to the zone, including, but not limited to, specific commitments for infrastructure improvements;

(25) a description of how the local economic development entities, as described in section 961 (b)(xii) of the General Municipal Law will integrate its services to allow for the best possible economic development support for the zone; and

(26) a description of specific strategies and actions taken by the local empire zone administration board and zone administrative entities to integrate economic goals with the objectives of community well-being and environmental protection, such as open space protection, that will promote new development patterns in order to take advantage of resources and opportunities, such as existing public sewer and water infrastructure, without comprising the needs of future generations.

(aa) Benefit-to-cost ratio means the calculation of the estimated value of:

(1) all wages and benefits, projected to be paid by a business enterprise to all existing and projected employees of the business enterprise in the zone; plus

(2) all capital investments projected to be made by the business enterprise in the zone, divided by the estimated amount of total empire zone tax benefits that may be used and may be refunded.

(ab) Capital investments means investments in tangible personal property or other tangible property which is depreciable pursuant to section 179(d) of the United States Internal Revenue Code. Capital investments do not include operating expenses such as office supplies, utilities, rent, and other recurring expenses.

(ac) Single business enterprise means two or more related business enterprises characterized by an absence of arms length relationships found among enterprises that are not integrated. Factors to be considered, among other things, in determining the existence of a single business enterprise are interrelation of operations, common management, centralized control of labor relations, common ownership and common financial control.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 10.2