PURSUANT TO THE PROVISIONS OF THE State Administrative Procedure Act, NOTICE is hereby given of the following action:
Action taken:
Addition of Parts 190-196 to Title 5 NYCRR.
Statutory authority:
L. 2013, ch. 68; L. 2011, ch. 61; L. 2010, ch. 59; Economic Development Law, art. 17
Finding of necessity for emergency rule:
Preservation of general welfare.
Specific reasons underlying the finding of necessity:
Regulatory action is needed immediately to implement the Excelsior Jobs Program which was created by Chapter 59 of the Laws of 2010 and amended by Chapter 61 of the Laws of 2011 and Chapter 68 of the Laws of 2013. The Excelsior Jobs Program provides job creation and investment incentives to firms that create and maintain new jobs or make significant financial investment. The Excelsior Jobs Program is one of the State’s key economic development tools for ensuring that businesses in the new economy choose to expand or locate in New York State. The current regulations to administer the Excelsior Jobs Program expire July 10, 2013. It is imperative that the administration of this Program continues so that New York remains competitive with other States, regions, and even countries as businesses make their investment and location decisions. Helping existing New York businesses create new jobs and make significant capital investments with the financial incentives of the Excelsior Jobs Program is equally important and needs to happen now. This emergency rule is necessary because, in addition to allowing for the continued administration of the Program, it also changes certain key definitions in order to broaden participation in the Program and ensure accountability. Immediate adoption of this rule will enable the State to begin achieving its economic development goals.
Section 356 of the Economic Development Law expressly authorizes the Commissioner of Economic Development to promulgate regulations on an emergency basis.
Subject:
Excelsior Jobs program.
Purpose:
Administer the Excelsior Jobs Program.
Substance of emergency rule:
The regulation creates new Parts 190-196 in 5 NYCRR as follows:
1) The regulation adds the definitions relevant to the Excelsior Jobs Program (the “Program”). Key definitions include, but are not limited to, certificate of eligibility, certificate of tax credit, industry with significant potential for private sector growth and economic development in the State, preliminary schedule of benefits, regionally significant project and significant capital investment. The definition of “net new jobs” has been amended to clarify the fact that the “net new job” minimum eligibility requirement for participation in the Excelsior Tax Credit program means net new job creation above a base level of employment. The definition of “new media” has been amended to include post production film projects and the term “distribution center” now allows processing and repackaging of goods directly to consumers. Also, the definition of “regionally significant project” has been revised to ensure that it mirrors the statutory definition.
2) The regulation creates the application and review process for the Excelsior Jobs Program. In order to become a participant in the Program, an applicant must submit a complete application and agree to a variety of requirements, including, but not limited to, the following: (a) allowing the exchange of its tax information between Department of Taxation and Finance and Department of Economic Development (the “Department”); (b) allowing the exchange of its tax and employer information between the Department of Labor and the Department; (c) agreeing to be permanently decertified for empire zone benefits at any location or locations that qualify for excelsior jobs program benefits if admitted into the Excelsior Jobs Program for such location or locations; (d) providing, if requested by the Department, a plan outlining the schedule for meeting job and investment requirements as well as providing its tax returns, information concerning its projected investment, an estimate of the portion of the federal research and development tax credits attributable to its research and development activities in New York state, and employer identification or social security numbers for all related persons to the applicant.
3) Applicants must also certify that they are in substantial compliance with all environmental, worker protection and local, state and federal tax laws.
4) Upon receiving a complete application, the Commissioner of the Department shall review the application to ensure it meets eligibility criteria set forth in the statute (see 5 below). If it does not, the application shall not be accepted. If it does meet the eligibility criteria, the Commissioner may admit the applicant into the Program. If admitted into the Program, an applicant will receive a certificate of eligibility and a preliminary schedule of benefits. The preliminary schedule of benefits may be amended by the Commissioner provided he or she complies with the credit caps established in General Municipal Law section 359.
5) The regulation sets forth the eligibility criteria for the Program. The strategic industries are specifically delineated in the regulation as follows: (a) financial services data center or a financial services back office operation; (b) manufacturing; (c) software development; (d) scientific research and development; (e) agriculture; (f) back office operations in the state; (g) distribution center; or (h) in an industry with significant potential for private-sector economic growth and development in this state. When determining whether an applicant is operating predominantly in a strategic industry, or as a regionally significant project, the commissioner will examine the nature of the business activity at the location for the proposed project and will make eligibility determinations based on such activity.
6) The rule is now further amended by to address certain changes to Sections 353 and 354 of the Economic Development Law made by Chapter 68 of the Laws of 2013, which are effective August 23, 2013. In particular, the minimum job requirements for business entities to meet in each of the strategic industries have been reduced, as follows: a business entity operating predominantly in manufacturing must now create at least ten net new jobs; a business entity operating predominately in agriculture must now create at least five net new jobs; a business entity operating predominantly as a financial service data center or financial services customer back office operation must now create at least fifty net new jobs; a business entity operating predominantly in scientific research and development must now create at least five net new jobs; a business entity operating predominantly in software development must now create at least five net new jobs; a business entity creating or expanding back office operations must now create at least fifty net new jobs or a business operating predominantly as a distribution center in the state must now create at least seventy-five net new jobs; a business entity must be a Regionally Significant Project. Furthermore, a business entity operating predominantly in one of the industries referenced above but which does not meet the job requirements must have at least twenty-five full-time job equivalents, unless such business is operating predominantly in manufacturing then it must have at least ten full-time job equivalents and must demonstrate that its benefit-cost ratio is at least ten to one (10:1). Finally, in accordance with the recent statutory changes, if, in any given year, a participant who has satisfied the eligibility criteria specified in the statute realizes job creation less than the estimated amount, the credit shall be reduced by the proportion of actual job creation to the estimated amount, provided the proportion is at least seventy-five percent of the jobs estimated.
7) A business entity must be in substantial compliance with all worker protection and environmental laws and regulations and may not owe past due state or local taxes. Also, the regulation explicitly excludes: a not-for-profit business entity, a business entity whose primary function is the provision of services including personal services, business services, or the provision of utilities, and a business entity engaged predominantly in the retail or entertainment industry, and a company engaged in the generation or distribution of electricity, the distribution of natural gas, or the production of steam associated with the generation of electricity from eligibility for this program. The amended regulation now clarifies that the exclusion of business services from eligibility refers to licensed professional services.
8) The regulation sets forth the evaluation standards that the Commissioner can utilize when determining whether to admit an applicant to the Program. These include, but are not limited to, the following: (1) whether the Applicant is proposing to substantially renovate contaminated, abandoned or underutilized facilities; or (2) whether the Applicant will use energy-efficient measures, including, but not limited to, the reduction of greenhouse gas and emissions and the Leadership in Energy and Environmental Design (LEED) green building rating system for the project identified in its application; or (3) the degree of economic distress in the area where the Applicant will locate the project identified in its application; or (4) the degree of Applicant’s financial viability, strength of financials, readiness and likelihood of completion of the project identified in the application; or (5) the degree to which the project identified in the Application supports New York State’s minority and women business enterprises; or (6) the degree to which the project identified in the Application supports the principles of Smart Growth; or (7) the estimated return on investment that the project identified in the Application will provide to the State; or (8) the overall economic impact that the project identified in the Application will have on a region, including the impact of any direct and indirect jobs that will be created; or (9) the degree to which other state or local incentive programs are available to the Applicant; or (10) the likelihood that the project identified in the Application would be located outside of New York State but for the availability of state or local incentives; or (11) the recommendation of the relevant regional economic development council or the commissioner’s determination that the proposed project aligns with the regional strategic priorities of the respective region.
9) The regulation requires an applicant to submit evidence of achieving job and investment requirements stated in its application in order to become a participant in the Program. After such evidence is found sufficient, the Department will issue a certificate of tax credit to a participant. This certificate will specify the exact amount of the tax credit components a participant may claim and the taxable year in which the credit may be claimed. Per the new statute if, in any given year, a participant who has satisfied the eligibility criteria specified in the statute realizes job creation less than the estimated amount, the credit shall be reduced by the proportion of actual job creation to the estimated amount, provided the proportion is at least seventy-five percent of the jobs estimated.
10) A participant's increase in employment, qualified investment, or federal research and development tax credit attributable to research and development activities in New York state above its projections listed in its application shall not result in an increase in tax benefits under this article. However, if the participant's expenditures are less than the estimated amounts, the credit shall be less than the estimate.
11) The regulation next delineates the calculation of the tax credits as described in statute. The Excelsior Jobs Program Credit is the product of gross wages and 6.85 percent. The Excelsior Research and Development Tax Credit is fifty percent of the participant’s federal research and development tax credit. The Excelsior Real Property Tax Credit is based on the value of the property after improvements have been made. A participant may claim both the Excelsior Investment Tax Credit and the investment tax credit for research and development property. In addition, the current tax benefit period for all credits is up to ten years.
12) The tax credit components are refundable. If a participant fails to satisfy the eligibility criteria in any one year, it loses the ability to claim the credit for that year.
13) Pursuant to the amended statute, the regulation authorizes utilities to offer excelsior job program rates for gas or electric services to participants in the program for up to ten years.
14) The regulation requires participants to keep all relevant records for their duration of program participation plus three years.
15) The regulation requires a participant to submit a performance report annually and states that the Commissioner shall prepare a program report on a quarterly basis for posting on the Department’s website.
16) The regulation calls for removal of a participant in the Program for failing to meet the application requirements or failing to meet the minimum job or investment requirements of the statute. Upon removal, a participant will be notified in writing and have the right to appeal such removal.
17) The regulation lays out the appeal process for participant’s who have been removed from the Program. A participant will have thirty (30) days to appeal to the Department. An appeal officer will be appointed and shall evaluate the merits of the appeal and any response from the Department. The appeal officer will determine whether a hearing is necessary and the level of formality required. The appeal officer will prepare a report and make recommendations to the Commissioner. The Commissioner will then issue a final decision in the case.
The full text of the emergency rule is available at the Department’s website at http://www.esd.ny.gov/BusinessPrograms/Excelsior.html.
This notice is intended
to serve only as an emergency adoption, to be valid for 90 days or less. This rule expires January 4, 2014.
Text of rule and any required statements and analyses may be obtained from:
Thomas P Regan, NYS Department of Economic Development, 30 South Pearl Street, Albany NY 12245, (518) 292-5123, email: tregan@esd.ny.gov
Regulatory Impact Statement
STATUTORY AUTHORITY:
Section 356 of the Economic Development Law authorizes the Commissioner of Economic Development to promulgate regulations to implement the Excelsior Jobs Program.
LEGISLATIVE OBJECTIVES:
The rulemaking accords with the public policy objectives the Legislature sought to advance in creating competitive financial incentives for businesses to create jobs and invest in the new economy. The Excelsior Jobs Program is created to support the growth of the State’s traditional economic pillars, including the manufacturing and financial industries, and to ensure that New York emerges as the leader in the knowledge, technology and innovation based economy. The Program encourages the expansion in and relocation to New York of businesses in growth industries such as clean-tech, broadband, information systems, renewable energy and biotechnology.
NEEDS AND BENEFITS:
The rule is required in order to administer the Excelsior Jobs Program. Section 356 of the Economic Development Law directs the Commissioner of Economic Development to promulgate regulations with respect to an application process and eligibility criteria.
The current regulations for the Excelsior Jobs Program were last published as an emergency rule making in the July 31, 2013 State Register. This rule making will allow for the continued administration of the Excelsior Jobs Program, which is one of the State’s key economic development tools for ensuring that businesses in the new economy choose to expand or locate in New York State. It is imperative that the administration of this Program continues so that New York remains competitive with other states, regions, and even countries as businesses make their investment and location decisions. Helping existing New York businesses create new jobs and make significant capital investments with the financial incentives of the Excelsior Jobs Program is equally important and needs to happen now.
In addition to allowing for the continued administration of the Program, this rule making also incorporates certain changes to the rule made in the latest emergency rule making, published on July 31, 2013. Those changes modified certain key definitions in order to broaden participation in the Program and ensure accountability. The definition of “net new jobs” has been amended to clarify the fact that the “net new job” minimum eligibility requirement for participation in the Excelsior Tax Credit program means net new job creation above a base level of employment. The definition of “new media” has been amended to include post production film projects and the term “distribution center” now allows processing and repackaging of goods directly to consumers. Finally, the definition of “regionally significant project” has been revised to ensure that it mirrors the statutory definition.
The rule is now further amended by to address certain changes to Sections 353 and 354 of the Economic Development Law made by Chapter 68 of the Laws of 2013, which became effective August 23, 2013. In particular, the minimum job requirements for business entities to meet in each of the strategic industries have been reduced, as follows: a business entity operating predominantly in manufacturing must now create at least ten net new jobs; a business entity operating predominately in agriculture must now create at least five net new jobs; a business entity operating predominantly as a financial service data center or financial services customer back office operation must now create at least fifty net new jobs; a business entity operating predominantly in scientific research and development must now create at least five net new jobs; a business entity operating predominantly in software development must now create at least five net new jobs; a business entity creating or expanding back office operations must now create at least fifty net new jobs or a business operating predominantly as a distribution center in the state must now create at least seventy-five net new jobs; a business entity must be a Regionally Significant Project. Furthermore, a business entity operating predominantly in one of the industries referenced above but which does not meet the job requirements must have at least twenty-five full-time job equivalents, unless such business is operating predominantly in manufacturing then it must have at least ten full-time job equivalents and must demonstrate that its benefit-cost ratio is at least ten to one (10:1). Finally, in accordance with the recent statutory changes, if, in any given year, a participant who has satisfied the eligibility criteria specified in the statute realizes job creation less than the estimated amount, the credit shall be reduced by the proportion of actual job creation to the estimated amount, provided the proportion is at least seventy-five percent of the jobs estimated.
It should be noted that the rule, including the most recent changes prompted by changes in the law made by Chapter 68 of the Laws of 2013, was published for permanent adoption in a notice of proposed rulemaking in the August 28, 2013 State Register.
COSTS:
A. Costs to private regulated parties: None. There are no regulated parties in the Excelsior Jobs Program, only voluntary participants.
B. Costs to the agency, the state, and local governments: The Department of Economic Development does not anticipate any significant costs with respect to implementation of this program. There is no additional cost to local governments.
C. Costs to the State government: None. There will be no additional costs to New York State as a result of the rule making.
LOCAL GOVERNMENT MANDATES:
None. There are no mandates on local governments with respect to the Excelsior Jobs Program. This rule does not impose any costs to local governments for administration of the Excelsior Jobs Program.
PAPERWORK:
The rule requires businesses choosing to participate in the Excelsior Jobs Program to establish and maintain complete and accurate books relating to their participation in the Excelsior Jobs Program for a period of three years beyond their participation in the Program. However, this requirement does not impose significant additional paperwork burdens on businesses choosing to participate in the Program but instead simply requires that information currently established and maintained be shared with the Department in order to verify that the business has met its job creation and investment commitments.
DUPLICATION:
The rule does not duplicate any state or federal statutes or regulations.
ALTERNATIVES:
No alternatives were considered with regard to amending the regulations in response to statutory revisions. The Department conducted outreach with respect to this rulemaking. Specifically, it contacted the Citizens Budget Commission, Partnership for New York City, the Buffalo Niagara Partnership and the New York State Economic Development Council and received comments from them. The Department carefully considered all comments made with respect to the regulation. Certain comments were incorporated into the rulemaking while others deemed inappropriate were not.
FEDERAL STANDARDS:
There are no federal standards in regard to the Excelsior Jobs Program. Therefore, the rule does not exceed any federal standard.
COMPLIANCE SCHEDULE:
The period of time the state needs to assure compliance is negligible, and the Department of Economic Development expects to be compliant immediately.
Regulatory Flexibility Analysis
1. Effect of rule
The rule imposes record-keeping requirements on all businesses (small, medium and large) that choose to participate in the Excelsior Jobs Program. The rule requires all businesses that participate in the Program to establish and maintain complete and accurate books relating to their participation in the Program for the duration of their term in the Program plus three additional years. Local governments are unaffected by this rule.
2. Compliance requirements
Each business choosing to participate in the Excelsior Jobs Program must establish and maintain complete and accurate books, records, documents, accounts, and other evidence relating to such business’s application for entry into the program and relating to annual reporting requirements. Local governments are unaffected by this rule.
3. Professional services
The information that businesses choosing to participate in the Excelsior Jobs Program would be providing is information such businesses already must establish and maintain in order to operate, i.e. wage reporting, financial records, tax information, etc. No additional professional services would be needed by businesses in order to establish and maintain the required records. Local governments are unaffected by this rule.
4. Compliance costs
Businesses (small, medium or large) that choose to participate in the Excelsior Jobs Program must create new jobs and/or make capital investments in order to receive any tax incentives under the Program. If businesses choosing to participate in the Program do not fulfill their job creation or investment commitments, such businesses would not receive financial assistance. There are no other initial capital costs that would be incurred by businesses choosing to participate in the Excelsior Jobs Program. Annual compliance costs are estimated to be negligible for businesses because the information they must provide to demonstrate their compliance with their commitments is information that is already established and maintained as part of their normal operations. Local governments are unaffected by this rule.
5. Economic and technological feasibility
The Department of Economic Development (“DED”) estimates that complying with this record-keeping is both economically and technologically feasible. Local governments are unaffected by this rule.
6. Minimizing adverse impact
DED finds no adverse economic impact on small or large businesses with respect to this rule. Local governments are unaffected by this rule.
7. Small business and local government participation
DED is in compliance with SAPA Section 202-b(6), which ensures that small businesses and local governments have an opportunity to participate in the rule-making process. DED has conducted outreach within the small and large business communities and maintains continuous contact with small and large businesses with regard to their participation in this program. Local governments are unaffected by this rule.
Rural Area Flexibility Analysis
The Excelsior Jobs Program is a statewide business assistance program. Strategic businesses in rural areas of New York State are eligible to apply to participate in the program entirely at their discretion. Municipalities are not eligible to participate in the Program. The rule does not impose any special reporting, record keeping or other compliance requirements on private entities in rural areas. Therefore, the rule will not have a substantial adverse economic impact on rural areas nor on the reporting, record keeping or other compliance requirements on public or private entities in such rural areas. Accordingly, a rural area flexibility analysis is not required and one has not been prepared.
Job Impact Statement
The rule relates to the Excelsior Jobs Program. The Excelsior Jobs Program will enable New York State to provide financial incentives to businesses in strategic industries that commit to create new jobs and/or to make significant capital investment. This Program, given its design and purpose, will have a substantial positive impact on job creation and employment opportunities. The rule will immediately enable the Department to fulfill its mission of job creation and investment throughout the State and in economically distressed areas through implementation of this new economic development program. Because this rule will authorize the Department to immediately begin offering financial incentives to strategic industries that commit to creating new jobs and/or to making significant capital investment in the State during these difficult economic times, it will have a positive impact on job and employment opportunities. Accordingly, a job impact statement is not required and one has not been prepared.
