N.Y. Comp. Codes R. & Regs. Tit. 5 § 190.2 - 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, shearing, animal and plant fiber processing,
and management, on a contract or fee basis).
(b) "Applicant " means a business enterprise
that is operating in New York State or is planning to operate in the
State.
(c) "Application " means the
form that the department determines must be submitted by an applicant in order
to be considered for acceptance into the program.
(d) "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.
(e) "Benefit-cost ratio " means the following
calculation: the numerator is the sum of:
(1)
the value of all remuneration projected to be paid for all net new jobs during
the period of participation in the program; and
(2) the value of capital investments to be
made by the business enterprise during the period of anticipated participation
in the program, and the denominator is the amount of total tax credits that
will be used and refunded pursuant to article 17 of the Economic Development
Law.
(f) "Business
services" for the purposes of this regulation, shall only refer to the
provision of professional services licensed by the State or by the courts of
this State.
(g) "Certificate of
eligibility " means the document issued by the department to an applicant that
has completed an application to be admitted into the Excelsior Jobs Program and
has been accepted into the program by the department . Possession of a
certificate of eligibility does not by itself guarantee eligibility to claim
the tax credit.
(h) "Certificate of
tax credit " means the document issued to a participant by the department that
entities a participant to claim the tax credit pursuant to section
355 of
the Economic Development Law. The certificate specifies the exact amount of
each of the tax credit components and the taxable year in which such credit may
be claimed. The certificate of tax credit shall be issued annually only after
the department has verified that the participant has met all applicable
eligibility criteria. The certificate may also include such information as the
commissioner deems necessary.
(i)
"Child care services " means those services undertaken or sponsored by a
participant in this program which are proximate and convenient to the project
location and meet the requirements of child day care as defined in paragraph
(a) of subdivision one of section
390 of the
Social Services Law or any child care services in the city of New York whereby
a permit to operate such child care services is required pursuant to the health
code of the city of New York.
(j)
"Commissioner " means Commissioner of the Department of Economic
Development.
(k) "Department " means
the Department of Economic Development.
(l) "Make products or develop technologies
that are primarily aimed at reducing greenhouse gas emissions or supporting the
use of clean energy in accordance with goals described in chapter 106 of the
laws of 2019" means the creation of products or the development of proven
technologies that are commercialized or ready to be commercialized and moved
into market and are aimed at reducing greenhouse gas emissions or supporting
the deployment or adoption of clean energy.
(m) "Distribution center " means a large scale
facility involving processing, repackaging and/or movement of finished or
semi-finished goods to retail locations or other end users across a multi-state
area. "Retail locations " includes delivery of goods directly to
consumers.
(n) "Eligible real
property taxes " has the same meaning as in section
15 (e) of the Tax Law,
provided that the definition in subdivision (e) shall be read as if it
specifically referenced the Excelsior Jobs Program and participants in that
program.
(o) "Entertainment
company " means a corporation, partnership, limited partnership, or other entity
principally engaged in the production or post production of:
(i) motion pictures, which shall include
feature-length films and television films;
(ii) instructional videos;
(iii) televised commercial
advertisements;
(iv) animated films
or cartoons;
(v) music
videos;
(vi) television programs,
which shall include but not be limited to, television series, television
pilots, and single television episodes; or
(vii) programs primarily intended for radio
broadcast. Entertainment company shall not include an entity:
(i) principally engaged in the live
performance of events, including but not limited to, theatrical productions,
concerts, circuses, and sporting events;
(ii) principally engaged in the production of
content intended primarily for industrial, corporate or institutional
end-users;
(iii) principally
engaged in the production of fundraising films or programs; or
(iv) engaged in the production of content for
which records are required under section 2257 of Title 18, United States Code,
to be maintained with respect to any performer in such production.
(p) "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.
(q) "Green CHIPS
benefit-cost ratio " means the following calculation with respect to Green CHIPS
projects: the ratio for which the numerator is the sum of:
(1) the value of all remuneration projected
to be paid for all net new jobs during the period of participation in the
program;
(2) the value of capital
investments projected to be made by the business enterprise during the period
of participation in the program; and
(3) the projected increase in research and
development expenditures by the participant in New York State during the period
of participation in the program; and the denominator is the amount of total tax
benefits under this article that will be used and refunded as well as any state
grants provided directly to the participant .
(r) "Green CHIPS community plan " shall mean a
plan submitted by the participant in a manner and form prescribed by the
Department and approved at the sole discretion of the Department . The
Department may consult with one or more host municipalities regarding such plan
to ensure that the areas of investment included in the plan are aligned with
local needs. Such plan shall include milestones and specific, actionable
commitments for worker and community investments. Such specific, actionable
commitments may include, but need not be limited to, those training and
education benefits paid by the participant to support local workforce
development and employment opportunities for local residents, including
economically disadvantaged individuals.
(s) "Green CHIPS sustainability plan " shall
mean a plan submitted by the participant in a manner and form prescribed by the
Department and approved at the sole discretion of the Department . The
Department may consult with other state agencies and authorities regarding such
plan. Such plan shall include annual participant milestones and specific and
actionable commitments to mitigate the project's greenhouse gas emissions over
its lifetime as a program participant .
(t) "Green CHIPS report " shall mean a report
submitted to the Department not less than annually by the participant in a
manner and form prescribed by the Department detailing the performance of the
Green CHIPS project against the milestones and commitments of its Green CHIPS
community plan and its Green CHIPS sustainability plan .
(u) "Green CHIPS project " means a project
meeting all of the following criteria:
(1) is
within the semiconductor manufacturing and related equipment and material
supplier sector;
(2) includes
sustainability measures to mitigate the project's greenhouse gas emissions over
its lifetime under a Green CHIPS sustainability plan ;
(3) provides for the payment of not less than
federal prevailing wage rates for its project construction;
(4) makes specific and actionable commitments
to worker and community investment under a Green CHIPS community plan ;
(5) will create at least five
hundred net new jobs and make at least three billion dollars in qualified
investment prior to the conclusion of its preliminary schedule of benefits ;
and
(6) will maintain a Green CHIPS
benefit-cost ratio of at least fifteen to one as calculated for the overall
project term. Such projects are eligible to enter into a phase one of a Green
CHIPS project ten-year benefit term. Such projects, provided they are in good
standing with all requirements of this Part, are also eligible to enter into a
phase two of a Green CHIPS project , and therefore to initiate a new and
separate ten-year schedule related to phase two, provided that phase two will
create at least five hundred net new jobs beyond those created in phase one,
and that phase two will make at least three billion dollars in qualified
investment beyond the investment total associated with phase one. For Green
CHIPS projects, phase one and phase two terms may overlap, depending on the
time of initiation for both projects. Green CHIPS projects may be allowed to
claim credits for taxable years up to January first, two thousand
fifty.
(v) "Green
project " means a project deemed by the commissioner to make products or develop
technologies that are primarily aimed at reducing greenhouse gas emissions or
supporting the use of clean energy in accordance with goals described in
chapter 106 of the laws of 2019. "Green project " shall include, but not be
limited to, the manufacture or development of products or technologies or
supply chain components primarily for renewable energy systems as defined in
section
66-p of the
Public Service Law, vehicles that use non-hydrocarbon fuels and produce zero or
near zero emissions, heat pumps, energy efficiency, clean energy storage and
other products that significantly reduce greenhouse gas emissions by minimizing
the utilization of depletable resources or by improving industrial or
agricultural efficiency. Green project shall not include a project primarily
composed of:
(1) necessarily local activities
such as retail, building construction, or the installation, deployment or
adoption of a clean energy product or technology at an end user's site;
or
(2) the production of products
or development of technologies that would produce only marginal and incremental
energy savings or environmental benefits ancillary to the core function of the
product or technology.
(w) "High value-added products " means durable
goods requiring assembly by skilled technicians, automation, or other advanced
technology.
(x) "Improving
industrial efficiency " means achieving significant reductions in the greenhouse
gas emissions associated with an industrial process, through a variety of
potential measures aimed at reducing onsite energy consumption and/or
converting fuel sources to zero and low-emission fuels where the resulting
product does not have a significant negative impact on State's clean energy
goals as set forth in chapter 106 of the laws of 2019 and as determined by the
department .
(y) "Industry with
significant potential for private sector growth and economic development in the
State" means any industry where it can be demonstrated that employment in the
industry could grow to any of the following:
(1) 4,000 or more in a metropolitan
statistical area or to one-half of one percent of the employed population in
the metropolitan statistical area; or
(2) 500 or more in a labor market area, or to
one percent of the employed population in the labor market area; or
(3) to a level that exceeds the percentage
level that the industry employs on a national basis. Such demonstrated
potential shall be on the basis of one or more key attributes of the
metropolitan statistical area or labor market area that a business enterprise
in the industry would consider essential in any decision to locate or expand
within such metropolitan statistical area or labor market area. For a business
in an industry that meets the criteria indicated above to be eligible as an
applicant to the program, the business enterprise must create at least three
hundred net new jobs and make significant capital investments of at least $30
million. Nothing in this section shall allow any business entity excluded under
section 191.2(g) of this
Title to become a participant in this program.
(z) "Investment zone " shall mean an area
within the State that had been designated under section
958 (a)(i) and
(d) of the General Municipal Law that was
wholly contained within up to four distinct and separate contiguous areas as of
the date immediately preceding the date the designation of such area expired
pursuant to section
969 of
the General Municipal Law. Investment zones are the designated distinct and
separate contiguous areas of the municipality that qualified for investment
zone status as those areas existed on June 29, 2010.
(aa) "Life sciences " means agricultural
biotechnology, biogenerics, bioinformatics, biomedical engineering,
biopharmaceuticals, academic medical centers, biotechnology, chemical
synthesis, chemistry technology, medical diagnostics, genomics, medical image
analysis, marine biology, medical devices, medical nanotechnology, natural
product pharmaceuticals, proteomics, regenerative medicine, RNA interference,
stem cell research, medical and neurological clinical trials, health robotics
and veterinary science.
(ab) "Life
sciences company " means a business entity or an organization or institution
that devotes the majority of its efforts in the various stages of research,
development, technology transfer and commercialization related to any life
sciences field.
(ac)
"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 .
(1) "Animal and plant fiber textile
manufacturing " means the processes of harvesting, cleaning, spinning, knitting,
weaving, dyeing and finishing textiles containing animal and plant fiber grown
or produced predominantly in New York state.
(ad) "Music production " means the process of
creating sound recordings of at least eight minutes, recorded in professional
sound studios, intended for commercial release. Music production does not
include recording of live concerts, or recordings that are primarily spoken
word or wildlife or nature sounds, or produced for instructional use or
advertising or promotional purposes.
(ae) "Net new jobs " means jobs created in
this State that:
(i) are new to the
State;
(ii) have not been
transferred from employment with another business located in this State
including from a related person in this State or through an acquisition,
merger, consolidation, or other reorganization of businesses or the acquisition
of assets of another business;
(iii) are either full-time wage-paying jobs
or equivalent to a full-time wage-paying job requiring at least 35 hours per
week;
(iv) are filled for more than
six months; and
(v) are in excess
of the applicant 's employment at the project location as of the date the
applicant is admitted into the Excelsior Jobs Program, provided that
applicant 's employment in New York State during each of their benefit years
exceeds its employment base which shall be calculated as the average of the
applicant 's employment in New York State for each of the four quarters
immediately prior to the date set forth in the certificate of eligibility , or,
if the applicant was not in business in New York State during all four
quarters, the employment base shall be calculated as the average of the
applicant 's employment in New York State for each of those quarters immediately
prior to the date set forth in the certificate of eligibility in which the
applicant was in business in New York State.
(af) "New media " means the application of
information technology to traditional communications outlets, particularly
through interactive modes such as the Internet, including video games, web
search portals, interactive web-based content, and interactive advertising. New
media also includes the post production process for film and television
projects which involves the following activities: picture, sound and music
editing; rerecording and mixing; visual effects, graphic design, original
scoring, animation and musical composition.
(ag) "Net new child care services
expenditures " means the calculation of new, annual participant expenditures on
child care services whether internal or provided by a third party (including
coverage for full or partial discount of employee rates), minus any revenues
received by the participant through a third-party operator (i.e. rent paid to
the participant by the child care provider) or employees. Such expenditures
must be incurred by a participant or third-party operator and must be proximate
and convenient to the project location. For the purposes of this definition,
expenditures for child care services that a participant has incurred prior to
admission to this program shall not be eligible for the credit.
(ah) "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
353
and section
354
(2) of the Economic Development Law as
further defined in sections
191.1 and
191.2 of this Title; and
(4) has been certified as a participant by
the commissioner .
(ai)
"Preliminary schedule of benefits " means the maximum aggregate amount of each
component of the tax credit that a participant in the program is eligible to
receive pursuant to this regulation. The preliminary schedule of benefits shall
indicate the annual amount of each component 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.
(aj)
"Program" means the Excelsior Jobs Program.
(ak) "Qualified investment " means an
investment in tangible property (including, a building or a structural
component of a building) owned by a business entity that:
(1) is depreciable pursuant to section
167 of the Internal Revenue Code;
(2) has a useful life of four years or
more;
(3) is acquired by purchase
as defined in section 179(d)
of the Internal Revenue Code;
(4)
has a situs in this State; and
(5)
is placed in service in the State on or after the date the certificate of
eligibility is issued to the business entity.
(al) "Regionally significant project " means:
(1) a manufacturer creating at least 10 net
new jobs in the State and making a significant capital investment in the
State;
(2) a business creating at
least 10 net new jobs in agriculture in the State and making a significant
capital investment in the State;
(3) a financial services firm or back office
operation creating at least 100 net new jobs in the State and making a
significant capital investment in the State;
(4) a distribution center creating at least
100 net new jobs in the State and making a significant capital
investment ;
(5) a scientific
research and development firm creating at least 10 net new jobs in the State
and making a significant capital investment in the State;
(6) an entertainment company creating or
obtaining at least 200 net new jobs in the State and making significant capital
investment in the State;
(7) a life
sciences company creating at least 20 net new jobs in the State and making
significant capital investment in the State. Other businesses creating 150 or
more net new jobs in the State and making a significant capital investment in
the State also may be considered eligible as a regionally significant project
by the commissioner . In order to be a regionally significant project under this
subdivision a business must export a substantial portion of its products or
services outside of the State or outside of a metropolitan statistical area or
county within the State.
(am) "Related person " means a related person
pursuant to section 465(b)(3)(c) of the
Internal Revenue Code.
(an)
"Remuneration " means wages and benefits paid to an employee by a participant in
the program. Under no circumstances shall remuneration include mandated
benefits including, but not limited to, Federal Insurance Contributions Act
(FICA), Medicare tax, unemployment insurance or workers' compensation
insurance.
(ao) "Research and
development expenditures " mean the expenses of the business entity that are
qualified research expenses under the Federal research and development credit
under section 41 of the Internal Revenue Code and are
attributable to activities conducted in the State. If the Federal research and
development credit has expired, then the research and development expenditures
shall be calculated as if the Federal research and development credit structure
and definition in effect in Federal tax year 2009 were still in
effect.
(ap) "Scientific research
and development " means conducting research and experimental development in the
physical, engineering, and life sciences , including but not limited to
agriculture , animal fiber, electronics, environmental, biology, botany,
biotechnology, computers, chemistry, food, fisheries, forests, geology, health,
mathematics, medicine, oceanography, pharmacy, physics, plant fiber,
veterinary, and other allied subjects. For the purposes of this article,
scientific research and development does not include medical or veterinary
laboratory testing facilities.
(aq)
"Semiconductor manufacturing and related equipment and material supplier
sector" means:
(1) The semiconductor and
related device manufacturing industry ; or
(2) The semiconductor machinery manufacturing
industry ; or
(3) Establishments
primarily engaged as chemical, gas or other material suppliers to the
semiconductor and related device manufacturing industry and/or the
semiconductor machinery manufacturing industry ; or
(4) Research, development and prototyping
establishments primarily engaged in the support of the semiconductor and
related device manufacturing industry and/or the semiconductor machinery
manufacturing industry ; or
(5)
Other related semiconductor industries as determined by the
Department
(ar)
"Semiconductor and related device manufacturing industry " means establishments
primarily engaged in manufacturing semiconductors and related solid-state
devices. Examples of products made by these establishments are integrated
circuits, memory chips, microprocessors, diodes, transistors, solar cells, and
other optoelectronic devices.
(as)
"Semiconductor machinery manufacturing industry " means establishments primarily
engaged in manufacturing wafer processing equipment, semiconductor assembly and
packaging equipment, and other semiconductor making machinery.
(at) "Significant capital investment " means a
project which will be either a newly constructed facility or a newly
constructed addition to, expansion of or improvement of a facility, consisting
of tangible personal property and other tangible property, including buildings
and structural components of buildings, that are depreciable pursuant to
section 167 of the Internal Revenue Code, have a
useful life of four years or more, are acquired by purchase as defined in
section 179 (d) of the Internal
Revenue Code, and that is equal to or exceeds:
(a) $1 million for a manufacturer;
(b) $250,000 for an agriculture
business;
(c) $3 million for a
financial services firm or back office operation;
(d) $15 million for a distribution
center ;
(e) $3 million for a
scientific research and development firm; or
(f) $3 million for other
businesses.
(au)
"Software development " means the creation of coded computer instructions or
production or post production of video games, as defined in subdivision 1-a of
section
611 of the
General Business Law, other than those embedded and used exclusively in
advertising, promotional websites or microsites, and also includes new
media .
(av) "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.
Notes
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