N.Y. General Municipal Law § 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.