N.Y. Comp. Codes R. & Regs. tit. 5 § 191.4

Current through Register Vol. 46, No. 53, December 31, 2024

Section 191.4 - Additional Eligibility Requirements for Green CHIPS Projects

(a) In addition to meeting the requirements of section 191.2 of this Part, a participant that implements a Green CHIPS project must adhere to the following additional requirements:

(1) Prevailing wage. Participants must not pay less than the applicable Federal prevailing wage and any required fringe benefits for construction performed as if the project were subject to the requirements of Section 602 to the Public Works and Economic Development Act of 1965 (42 U.S.C. 3212) and any implementing regulations. In addition to any other requirements prescribed by the Department, participants shall be required to:

(i) Annually certify to the Department that all covered workers have been paid at least the Federal prevailing wage and required fringe benefits in the previous year;

(ii) Maintain payroll records during the course of the work and preserved for a period of three years thereafter for all covered workers on the project;

(iii) Upon request of the Department, submit all records required to be maintained in subparagraph (ii) of this paragraph to the Department or make available for inspection, copying, or transcription by authorized representatives of the Department or the New York State Department of Labor, and shall permit such representatives to interview employees during working hours on the job site.

(2) Sustainability. Participants must enter into a Green CHIPS sustainability plan approved by the Department. Each Green CHIPS sustainability plan must describe the Green CHIPS project's annual milestones and specific and actionable commitments with respect to the methods being employed to mitigate the project's greenhouse gas emissions over its lifetime as a program participant. The Department shall publish a common template and requirements for such plans. Such plans may include, but need not be limited to, requirements relating to the use of renewable energy for project electricity, energy efficient design and operation, the use of electrification for space heating and cooling, investments to encourage or promote sustainable housing, achievement of minimum Leadership in Energy and Environmental Design (LEED) standards for project facilities, and other measures intended to mitigate GHG emissions over the project's lifetime and support the goals of the Climate Leadership and Community Protection Act (CLCPA).

(3) Community and workforce benefits. Participants must enter into a Green CHIPS community plan approved by the Department. The Department shall publish a common template and requirements for such plans. Such plans may include, but need not be limited to, the utilization of a local community engagement committee, specific and actionable goals for the utilization of socially and economically disadvantaged individuals (SEDI), SEDI-owned businesses and New York State Certified Minority-Owned Business Enterprises, New York State Certified Woman-Owned Business Enterprises and Service-Disabled Veteran-Owned Businesses, investments in child care facilities and services, and commitments to philanthropic investment in the host community.

(4) Noncompliance. In addition to complying with all eligibility criteria under this Title, Green CHIPS participants must remain in compliance with the Green CHIPS eligibility criteria articulated in paragraphs 1-3 of this subdivision, including payment of prevailing wage as applicable, articulation and implementation of a Green CHIPS sustainability plan, and articulation and implementation of a Green CHIPS community plan. If a participant fails to meet a program requirement or fails to cure a material deficiency in a given year, the Department shall not issue the participant tax credits for that year in an amount associated with the Green CHIPS program. Instead, such participant may be eligible for benefits associated with participants not undertaking green projects or Green CHIPS projects depending on the nature of the failure or shortfall. To enable participants of Green CHIPS projects to remain in compliance and cure material deficiencies, the following provisions shall apply:

Federal Prevailing wage compliance. If a participant in the program fails to satisfy the requirements with respect to payment of not less than Federal prevailing wages to any worker, the participant shall cure such deficiency by making payment to such worker in an amount equal to the difference between:

The amount of wages paid to such worker during such period and the amount of wages required to be paid to such worker pursuant to the prevailing wage schedule in place at the time the contract was entered into, plus a commercially reasonable rate of interest or penalty on the calculated amount as prescribed by the Department. In addition, willful failure of the participant to comply with the Federal prevailing wage requirements may subject the participant to removal from the program pursuant to section 195.1 of this Title.

(b) Sustainability and community and workforce benefits compliance. If a Green CHIPS participant achieves a material deficiency as it relates to an annual milestone or commitment in its Green CHIPS sustainability plan or Green CHIPS community plan, as identified by the participant in its Green CHIPS report or as identified by the Department and communicated in writing to the participant as formal notice, the following provisions shall apply:

1. In anticipation of or following the occurrence of a material deficiency, a participant may request to modify the schedule or allocation of the milestones and commitments to cure and compensate for the material deficiency, which may be approved at the discretion of the Department provided that a Green CHIPS sustainability plan and Green CHIPS community plan remain as required project elements; and

2. If a material deficiency remains uncured for ninety days after the identification of the material deficiency, a participant may be granted an additional ninety days during which it shall be permitted to make a payment to a local non-profit organization of related mission approved in writing by the Department in order to compensate for the underlying issue that was the subject of the unmet milestone or commitment, with such payment required to be of a value proportional to the nature of the shortfall, as determined by the Department, after which the material deficiency shall be deemed to have been cured for the year.

N.Y. Comp. Codes R. & Regs. Tit. 5 § 191.4

Adopted New York State Register May 3, 2023/Volume XLV, Issue 18, eff. 5/3/2023