Sec. 210.2. Definitions

As used in this regulation, the following terms shall have the following meanings:

(a) Agriculture means both agricultural production (establishments performing the complete farm or ranch operation, such as farm owner-operators, tenant farm operators, and sharecroppers) and agricultural support (establishments that perform one or more activities associated with farm operation, such as soil preparation, planting, harvesting, and management, on a contract or fee basis).

(b) Back office operations means a business function that may include one or more of the following activities: customer service, information technology and data processing, human resources, accounting and related administrative functions.

(c) Certificate of eligibility means the document issued by the department to an applicant that has completed an application to be admitted into the Empire State Jobs Retention Program and has been accepted into the program by the department. Possession of a certificate of eligibility does not by itself guarantee the eligibility to claim the tax credit.

(d) Certificate of tax credit means the document issued to a participant by the department, after the department has verified that the participant has met all applicable eligibility criteria in this article. The certificate shall be issued annually if such criteria are satisfied and shall specify the exact amount of the tax credit under this article that a participant may claim, pursuant to section 213.1 of this Title, and shall specify the taxable year in which such credit may be claimed.

(e) Distribution center means a large scale facility involving processing, repackaging and/or movement of finished or semi-finished goods to retail locations across a multi-state area.

(f) Financial services data centers or financial services customer back office operations means operations that manage the data or accounts of existing customers or provide product or service information and support to customers of financial services companies, including banks, other lenders, securities and commodities brokers and dealers, investment banks, portfolio managers, trust offices, and insurance companies.

(g) Full-time equivalent jobs means any combination of two or more part-time jobs that, when combined together, constitute the equivalent of a job of at least 35 hours per week.

(h) Impacted jobs means jobs existing at a business enterprise at a location or locations within the county declared an emergency by the governor on the day immediately preceding the day on which the event leading to the emergency declaration by the governor occurred.

(i) Manufacturing means the process of working raw materials into products suitable for use or which gives new shapes, new quality or new combinations to matter which has already gone through some artificial process by the use of machinery, tools, appliances, or other similar equipment. Manufacturing does not include an operation that involves only the assembly of components, provided, however, the assembly of motor vehicles or other high value-added products shall be considered manufacturing.

(j) Participant means a business entity that:

(1) has completed an application prescribed by the department to be admitted into the program;

(2) has been issued a certificate of eligibility by the department;

(3) has demonstrated that it meets the eligibility criteria in section 211.2 of this Title and the requirements in section 211.1(c) of this Title; and

(4) has been certified as a participant by the commissioner.

(k) Preliminary schedule of benefits means the maximum aggregate amount of the tax credit that a participant in the Empire State Jobs Retention Program is eligible to receive pursuant to this Title. The schedule shall indicate the annual amount of the credit a participant may claim in each of its 10 years of eligibility. The preliminary schedule of benefits shall be issued by the department when the department approves the application for admission into the program. The commissioner may amend that schedule, provided that the commissioner complies with the credit caps in section 359 of the Economic Development Law.

(l) Related person means a related person pursuant to subparagraph (c) of paragraph 3 of subsection (b) of section 465 of the Internal Revenue Code.

(m) Scientific research and development means conducting research and experimental development in the physical, engineering, and life sciences, including but not limited to agriculture, electronics, environmental, biology, botany, biotechnology, computers, chemistry, food, fisheries, forests, geology, health, mathematics, medicine, oceanography, pharmacy, physics, veterinary, and other allied subjects. For the purposes of this article, scientific research and development does not include medical or veterinary laboratory testing facilities.

(n) Significant capital investment means generally the costs relating to extensive renovations to an existing facility and/or the purchase of a substantial amount of new machinery and equipment, or purchase or construction of a new facility. Evidence of a significant capital investment may be:

(1) a new capital investment with a basis for Federal income tax purposes at the time of completion that exceeds the sum of the applicant's total New York State capital investments over the past three tax years; or

(2) a major expansion or upgrade of an existing facility resulting in additional production capacity or increased energy or production efficiency increasing the applicant's profitability, long-term viability, and commitment to operations in New York State. Land acquisition, site development and moving and relocation costs may be taken into account in determining whether an investment in a new facility is a significant capital investment. Only costs in excess of any insurance proceeds received as a result of the losses will be considered for determining whether a significant capital investment has been made.

(o) Software development means the creation of coded computer instructions and includes new media as defined by the commissioner in regulations.

(p) Substantial physical damage and economic harm means the loss of ability to continue operations at the location(s) within the county in which an emergency was declared by the governor after January 1, 2011 without incurring significant capital investment to repair an existing building or buildings, machinery or equipment or to purchase a new building or buildings, machinery or equipment, or to construct a new facility.

(q) Smart growth means the sensible, planned, efficient growth that integrates economic development and job creation with community quality-of-life by preserving and enhancing the built and natural environments. Smart growth encourages growth in developed areas with existing infrastructure to sustain it, particularly municipal centers, downtowns, urban cores, historic districts and older first-tier suburbs.