§ 352. Definitions. For the purposes of this article:

1. "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).

1-a. "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.

2. "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.

3. "Benefit-cost ratio" means the following calculation: the numerator
is the sum of (i) the value of all remuneration projected to be paid for
all net new jobs during the period of participation in the program, and
(ii) the value of capital investments to be made by the business
enterprise 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.

3-a. "Green CHIPS benefit-cost ratio" means the following calculation
with respect to Green CHIPS projects: the ratio where the numerator is
the sum of: (a) the value of all remuneration projected to be paid for
all net new jobs during the period of participation in the program; (b)
the value of capital investments to be made by the business enterprise
during the period of participation in the program; and (c) all 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 to the participant.

4. "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 the eligibility to claim the tax credit.

5. "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 each of the tax credit
components under this article that a participant may claim, pursuant to
section three hundred fifty-five of this article, and shall specify the
taxable year in which such credit may be claimed.

5-a. "Child care services" means those services undertaken or
sponsored by a participant in this program meeting the requirements of
"child day care" as defined in paragraph (a) of subdivision one of
section three hundred ninety 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.

6. "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.

7. "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.

8. "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.

8-a. "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 one hundred six of the
laws of two thousand nineteen. "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 sixty-six-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 (i) 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 (ii) 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.

9. "Investment zone" shall mean an area within the state that had been
designated under paragraph (i) of subdivision (a) and subdivision (d) of
section nine hundred fifty-eight 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 nine hundred sixty-nine of the
general municipal law.

10. "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.

11. "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.

12. "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.

13. "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.

13-a. "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 and may be further
defined by the commissioner in regulations. 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.

14. "Net new jobs" means:

(a) 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,

(iii) are either full-time wage-paying jobs or equivalent to a
full-time wage-paying job requiring at least thirty-five hours per week,
and

(iv) are filled for more than six months; or

(b) jobs obtained by an entertainment company in this state (i) as a
result of the termination of a licensing agreement with another
entertainment company, (ii) that the commissioner determines to be at
risk of leaving the state as a direct result of the termination, (iii)
that are either full-time wage-paying jobs or equivalent to a full-time
wage-paying job requiring at least thirty-five hours per week, and (iv)
that are filled for more than six months.

15. "Participant" means a business entity that:

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

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

(c) has demonstrated that it meets the eligibility criteria in section
three hundred fifty-three and subdivision two of section three hundred
fifty-four of this article; and

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

16. "Preliminary schedule of benefits" means the maximum aggregate
amount of each component of the tax credit that a participant in the
excelsior jobs program is eligible to receive pursuant to this article.
The schedule shall indicate the annual amount of each component of the
credit a participant may claim in each of its ten 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 three hundred
fifty-nine of this article as applicable.

17. "Qualified investment" means an investment in tangible property
(including a building or a structural component of a building) owned by
a business enterprise which:

(a) is depreciable pursuant to section one hundred sixty-seven of the
internal revenue code;

(b) has a useful life of four years or more;

(c) is acquired by purchase as defined in section one hundred
seventy-nine (d) of the internal revenue code;

(d) has a situs in this state; and

(e) is placed in service in the state on or after the date the
certificate of eligibility is issued to the business enterprise.

18. "Regionally significant project" means (a) a manufacturer creating
at least ten net new jobs in the state and making significant capital
investment in the state; (b) a business creating at least ten net new
jobs in agriculture in the state and making significant capital
investment in the state, (c) a financial services firm, distribution
center, or back office operation creating at least one hundred net new
jobs in the state and making significant capital investment in the
state, (d) a scientific research and development firm creating at least
ten net new jobs in the state, and making significant capital investment
in the state, (e) a life sciences company creating at least twenty net
new jobs in the state and making significant capital investment in the
state or (f) an entertainment company creating or obtaining at least two
hundred net new jobs in the state and making significant capital
investment in the state. Other businesses creating one hundred fifty or
more net new jobs in the state and making significant capital investment
in the state may be considered eligible as a regionally significant
project by the commissioner as well. The commissioner shall promulgate
regulations pursuant to section three hundred fifty-six of this article
to determine what additional criteria a business must meet to be
eligible as a regionally significant project, including, but not limited
to, whether a business exports a substantial portion of its products or
services outside of the state or outside of a metropolitan statistical
area or county within the state.

19. "Related person" means a "related person" pursuant to subparagraph
(c) of paragraph three of subsection (b) of section four hundred
sixty-five of the internal revenue code.

20. "Remuneration" means wages and benefits paid to an employee by a
participant in the excelsior jobs program.

20-a. "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 one hundred sixty-seven of the internal revenue code, have a
useful life of four years or more, are acquired by purchase as defined
in section one hundred seventy-nine (d) of the internal revenue code,
and that is equal to or exceeds (a) one million dollars for a
manufacturer; (b) two hundred fifty thousand dollars for an agriculture
business; (c) three million dollars for a financial services firm or
back office operation; (d) fifteen million dollars for a distribution
center; (e) three million dollars for a scientific research and
development firm; or (f) three million dollars for other businesses.

21. "Research and development expenditures" mean the expenses of the
business enterprise that are qualified research expenses under the
federal research and development credit under section forty-one 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 two thousand nine were still in effect.

22. "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.

23. "Software development" means the creation of coded computer
instructions or production or post-production of video games, as defined
in subdivision one-a of section six hundred eleven of the general
business law, other than those embedded and used exclusively in
advertising, promotional websites or microsites, and also includes new
media as defined by the commissioner in regulations.

24. "Green CHIPS project" means a project meeting all of the following
criteria: (a) is within the semiconductor manufacturing and related
equipment and material supplier sector; (b) includes sustainability
measures to mitigate the project's greenhouse gas emissions impact over
its lifetime; (c) provides for the payment of not less than federal
prevailing wage rates for its project construction; (d) makes
commitments to worker and community investment, including through
training and education benefits paid by the participant and programs to
expand employment opportunity for economically disadvantaged
individuals; (e) will create at least five hundred net new jobs and make
at least three billion dollars in qualified investment; and (f) the
participant undertaking a Green CHIPS project shall maintain a Green
CHIPS benefit-cost ratio of at least fifteen to one. 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 chapter, 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. In no
event shall credits be awarded for a Green CHIPS project beyond two
thousand fifty.