§ 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.