N.Y. Comp. Codes R. & Regs. tit. 5 § 11.9

Current through Register Vol. 46, No. 16, April 17, 2024

Section 11.9 - Revocation of certification

(a) The commissioner may revoke the certification of a business enterprise upon a finding of any one of the following:

(1) the business enterprise made material misrepresentations of fact on its application for certification or on a business annual report, 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, invest in or operate 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;

(4) the business enterprise has failed to submit an annual report pursuant to section 11.7 of this Part by the deadline established by the commissioner after it has applied for zone tax benefits or program assistance based on new hires or investments or failed to submit other information;

(5) the business enterprise has changed ownership or moved its operations out of the empire zone; or

(6) the business enterprise has failed to pay the projected wages and benefits and to make the projected capital investments as set forth in the cost benefit analysis provided on the business enterprise's application for certification.

(b) The commissioner may also, upon the recommendation of the Commissioner of Labor, revoke the certification of a business enterprise or the single business enterprise to which it belongs 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.

(c) The commissioner shall revoke the certification of a business enterprise upon a finding that:

(1) if certified prior to the first day of August 2002, the business enterprise 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; or

(2) a business enterprise that has submitted at least three years of business annual reports 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 that add to a greater value than the tax benefits the business enterprise used and had refunded to it; a business enterprise that has submitted at least three years of business annual reports shall have failed this analysis if the sum of:

(i) the actual value of all wages and benefits paid to all employees of the business enterprise in the zone, as indicated in the business enterprise's business annual reports submitted and reporting for any of the years from and including 2001 through and including 2007; and

(ii) the value of capital investments in the zone, as indicated in the business enterprise's business annual reports submitted and reporting for any of the years from and including 2001 through and including 2007, does not exceed the total amount of State tax benefits the business enterprise used and had refunded to it or its members, partners or shareholders under the empire zones program as indicated in the business annual reports submitted and reporting for any of the years from and including 2001 through and including 2007;

provided, however, if the commissioner makes the finding described in paragraph (1) of this subdivision or the business enterprise fails the analysis described in paragraph (2) of this subdivision, 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 benefits of a project in the State and whether continued certification is warranted based on such factors. The effective date of decertification pursuant to this subdivision shall be January 1, 2008.

(d) Prior to the Commissioner of Economic Development rendering a decision revoking a business enterprise's certification pursuant to subdivision (a) or (b) of this section, the department shall notify the business enterprise of the intent to revoke the certification of the business enterprise ("notice of intent to revoke certification") and its right to a hearing pursuant to the procedures set forth in Part 13 of this Title. A notice of intent to revoke certification pursuant to subdivision (a) or (b) of this section may be served by the department on the business enterprise by certified, registered or overnight mail sent to the business enterprise at the address for the business enterprise indicated on the last annual report filed by the business enterprise in accordance with section 11.7 of this Part. A business enterprise shall have 30 days within which to request a hearing from its receipt of the notice of intent to revoke certification that was sent pursuant to subdivision (a) or (b) of this section. Failure to request a hearing within such 30 day period will be deemed a waiver of the business enterprise's right to a hearing.

(e) Notice of revocation of certification pursuant to subdivision (a) or (b) of this section shall be served by certified, registered or overnight mail to the business enterprise by the department. The department shall simultaneously send copies to the Commissioners of Labor, Taxation and Finance, the chair of the local zone administrative board and any applicable utility company.

(f) The commissioner is under no obligation to send a notice of intent to revoke certification to a business enterprise prior to rendering a decision to revoke the certification of a business enterprise pursuant to subdivision (c) of this section. If the commissioner has revoked the certification of a business enterprise pursuant to subdivision (c) of this section, the commissioner shall notify the business enterprise of such revocation in writing in a notice of revocation of certification. Such notice shall explain the reason or reasons for the revocation of certification, and shall refer to the particular section or sections of laws and regulations that are the basis for such revocation. Such notice shall state the effective date of decertification, and advise the business enterprise that it may appeal the revocation in accordance with Part 14 of this Title. A notice of revocation of certification pursuant to subdivision (c) of this section may be served by the department on the business enterprise by certified, registered or overnight mail sent to the business enterprise at the address for the business enterprise indicated on the last annual report filed by the business enterprise in accordance with section 11.7 of this Part.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 11.9