S T A T E O F N E W Y O R K
________________________________________________________________________
8104
2013-2014 Regular Sessions
I N A S S E M B L Y
June 18, 2013
___________
Introduced by M. of A. SILVER, MORELLE, GLICK, FARRELL -- read once and
referred to the Committee on Ways and Means
AN ACT to amend a chapter of the laws of 2013 amending the economic
development law, the tax law, the administrative code of the city of
New York, the real property tax law and the education law relating to
establishing the START-UP NY program, as proposed in legislative bill
number A. 8096, in relation to the mandate and regulatory relief coun-
cil and in relation to enhancing the excelsior jobs program
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. The title of a chapter of the laws of 2013 amending the
economic development law, the tax law, the administrative code of the
city of New York, the real property tax law and the education law relat-
ing to establishing the START-UP NY program, as proposed in legislative
bill number A. 8096, is amended to read as follows:
AN ACT to amend the economic development law, the tax law, the admin-
istrative code of the city of New York, the real property tax law and
the education law, in relation to establishing the START-UP NY program;
TO AMEND THE EXECUTIVE LAW, IN RELATION TO THE MANDATE AND REGULATORY
RELIEF COUNCIL (PART B); AND TO AMEND THE ECONOMIC DEVELOPMENT LAW AND
THE TAX LAW, IN RELATION TO ENHANCING THE EXCELSIOR JOBS PROGRAM ACT
(PART C)
S 2. A chapter of the laws of 2013 amending the economic development
law, the tax law, the administrative code of the city of New York, the
real property tax law and the education law relating to establishing the
START-UP NY program, as proposed legislative bill number A. 8096, is
amended by adding two new Parts B and C to read as follows:
PART B
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD11595-02-3
A. 8104 2
Section 1. Section 666 of the executive law, as added by section 2 of
subpart H of part C of chapter 97 of the laws of 2011, is amended to
read as follows:
S 666. Mandate AND REGULATORY relief council. 1. Definitions. a.
"Mandate" means (I) any requirement that a local government perform or
administer any program, project or activity, required or imposed by a
state law or state agency that requires a higher level of service for an
existing local government program, project or activity; OR (II) ANY
REQUIREMENT A BUSINESS MUST PERFORM IN ORDER TO DO BUSINESS IN NEW YORK
STATE.
b. "Local government" means a county, city, town, village, school
district, or special district.
c. "State agency" or "agency" means any state agency, department,
office, board, bureau, division, committee, council or office under the
direction or control of the executive.
D. "BUSINESS" MEANS ANY ENTITY DOING BUSINESS IN OR AUTHORIZED TO
OPERATE IN THE STATE OF NEW YORK, INCLUDING, BUT NOT LIMITED TO,
FOR-PROFIT AND NOT-FOR-PROFIT CORPORATIONS, SOLE PROPRIETORSHIPS, PART-
NERSHIPS, AND LIMITED LIABILITY COMPANIES.
2. Mandate relief council. There is hereby created within the execu-
tive department the mandate relief council, which shall be comprised of
eleven members as follows: the secretary to the governor, who shall
chair the council, the counsel to the governor, the director of the
division of the budget, the secretary of state, and three additional
members to be appointed by the governor from among his or her executive
chamber staff, two members to be appointed by the temporary president of
the senate, and two members to be appointed by the speaker of the assem-
bly.
a. Six members of the council, or their designees in the case of the
director of the division of the budget and the secretary of state, shall
constitute a quorum.
b. The council shall meet regularly upon the call of its chair and as
frequently as its business may require. The members of the council shall
serve without compensation but shall receive reimbursement for their
reasonable and necessary expenses.
c. The council shall, upon request of a local government OR BUSINESS
or one of the members of the council, identify and review mandates that
can be eliminated or reformed, and make such other and further
inquiries, reports and recommendations as the council may deem necessary
and prudent to effectuate its mission of mandate relief. In identifying
and determining whether such mandates are unsound, unduly burdensome or
costly, the council shall receive and consider public comment about them
and shall review them in light of cost-benefit principles and such other
and further factors as the council shall deem necessary and prudent. The
council shall not make a referral to the governor that a mandate be
eliminated or reformed regarding any of the following mandates:
(i) those which are required to comply with federal laws or rules or
to meet eligibility standards for federal entitlements;
(ii) those which reapportion the costs of activities between boards of
education, counties, and municipalities;
(iii) those which implement provisions of the state constitution; and
(iv) those which the council determines are necessary for the mainte-
nance of the public health or safety of the people of New York state.
d. All votes of the council, and all deliberations and reports of its
proceedings shall be open to the public pursuant to article seven of the
public officers law.
A. 8104 3
3. Council actions on regulatory mandates. Upon a determination that a
mandate in any regulation, rule or order of any state agency has been
imposed upon any local government OR BUSINESS in an unsound, unduly
burdensome or costly manner so as to necessitate that it be eliminated
or reformed, the council shall have the power to:
a. refer a request by a local government for a review of such regula-
tory mandate, for petition by such local government for a waiver,
modification or repeal of such regulatory mandate pursuant to section
two hundred four-a of the state administrative procedure act. In the
event the council votes to make such referral on behalf of a local
government, the state agency that is charged with reviewing the petition
shall provide the technical assistance and support for such local
government to properly prepare and submit such petition. In the event
that such state agency reviewing the petition of the local government
pursuant to section two hundred four-a of the state administrative
procedure act does not provide the remedy sought by such local govern-
ment, the council may hear and consider an appeal of such decision and
grant such relief as it deems appropriate, including the making of a
referral to the governor for the waiving, modifying or repealing of such
regulatory mandate. The council shall adopt procedures by which it shall
consider, decide and effectuate the remedies of such appeals consistent
with this section.
b. upon a two-thirds vote, refer a regulation to the governor for
repeal or modification, where the council has previously determined that
such regulation imposes upon any local government a mandate in an
unsound, unduly burdensome or costly manner, so as to necessitate that
it be eliminated or reformed. Upon receipt of such referral by the coun-
cil, the governor shall within sixty days, direct the state agency
responsible for the promulgation, repeal or modification of such regu-
lation to effectuate such repeal or modification of the regulation
pursuant to the procedures that such agency would otherwise be required
to follow under the law, had such agency on its own accord sought to
repeal or modify the regulation.
4. Council actions on statutory mandates. The council may, upon a vote
of seven members, refer a statute to the governor for repeal or modifi-
cation, where the council has previously determined that such statute
imposes upon any local government OR BUSINESS a mandate in an unsound,
unduly burdensome or costly manner, so as to necessitate that it be
eliminated or reformed. Upon receipt of the referral by the council, the
governor, within sixty days, shall have prepared a governor's program
bill, for introduction in both houses of the legislature, to effectuate
such repeal or modification of the statute.
5. Local government request. A local government may, by resolution of
its governing body, ask the council to review a specific statute, regu-
lation, rule or order of state government to determine whether such
statute, regulation, rule or order of state government is an unfunded
mandate or is otherwise unsound, unduly burdensome or costly so as to
require that it be eliminated or reformed. No local government may make
more than three such requests in each calendar year. Upon such review,
the council shall, by majority vote, determine whether such mandate has
been imposed upon such local government in an unsound, unduly burdensome
or costly manner, so as to necessitate that it be eliminated or
reformed. A determination of the council shall resolve any dispute
regarding whether such a statute, regulation, rule or order constitutes
such an unfunded mandate, but shall not be deemed a judicial determi-
nation under the law.
A. 8104 4
6. Appeals. Upon an appeal of a petition previously decided by a state
agency pursuant to section two hundred four-a of the state administra-
tive procedure act, the council, upon request of the local government,
shall review the state agency's determination and may affirm, modify or
reject such determination. Such appeal shall not preclude or limit a
local government or any other party with standing from pursuing any
right it may have pursuant to a proceeding instituted in accordance with
the provisions of article seventy-eight of the civil practice law and
rules or any other statute.
7. Reports. The council shall by December fifteenth of each year
report to the governor and legislature regarding its activities, and
regarding the issues, statutes, regulations, rules and orders which it
reviewed, examined, proposed, referred, and/or considered. Such reports,
which shall be adopted upon a majority vote of the members of the coun-
cil, or their designees in the case of the director of the division of
the budget or the secretary of state. All reports of the council shall
be posted on a publicly accessible website.
8. Assistance of other agencies. To effectuate the purposes of this
section, any state agency shall, at the request of the council, provide
to the council such facilities, assistance and data as will enable the
council to properly carry out its responsibilities and duties.
S 2. This act shall take effect immediately, provided that the amend-
ments to section 666 of the executive law made by section one of this
act shall not affect the repeal of such section and shall be deemed
repealed therewith.
PART C
Section 1. Subdivisions 3 and 4 of section 353 of the economic devel-
opment law, as amended by section 2 of part G of chapter 61 of the laws
of 2011, are amended to read as follows:
3. For the purposes of this article, in order to participate in the
excelsior jobs program, a business entity operating predominantly in
manufacturing must create at least [twenty-five] TEN net new jobs; a
business entity operating predominately in agriculture must create at
least [ten] FIVE net new jobs; a business entity operating predominantly
as a financial service data center or financial services customer back
office operation must create at least [one hundred] FIFTY net new jobs;
a business entity operating predominantly in scientific research and
development must create at least [ten] FIVE net new jobs; a business
entity operating predominantly in software development must create at
least [ten] FIVE net new jobs; a business entity creating or expanding
back office operations MUST CREATE AT LEAST FIFTY NET NEW JOBS; or A
BUSINESS ENTITY OPERATING PREDOMINANTLY AS a distribution center in the
state must create at least [one hundred fifty] SEVENTY-FIVE net new
jobs, notwithstanding subdivision five of this section; or a business
entity must be a regionally significant project as defined in this arti-
cle; or
4. A business entity operating predominantly in one of the industries
referenced in paragraphs (a) through (h) of subdivision one of this
section but which does not meet the job requirements of subdivision
three of this section must have at least [fifty] TWENTY-FIVE full-time
job equivalents UNLESS SUCH BUSINESS IS A BUSINESS ENTITY 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.
A. 8104 5
S 2. Subdivision 5 of section 354 of the economic development law, as
amended by section 3 of part G of chapter 61 of the laws of 2011, is
amended to read as follows:
5. A participant may claim tax benefits commencing in the first taxa-
ble year that the business enterprise receives a certificate of tax
credit or the first taxable year listed on its preliminary schedule of
benefits, whichever is later. A participant may claim such benefits for
the next nine consecutive taxable years, provided that the participant
demonstrates to the department that it continues to satisfy the eligi-
bility criteria specified in section three hundred fifty-three of this
article and subdivision two of this section in each of those taxable
years. IF, IN ANY GIVEN YEAR, A PARTICIPANT WHO HAS SATISFIED THE ELIGI-
BILITY CRITERIA SPECIFIED IN SECTION THREE HUNDRED FIFTY-THREE OF THIS
ARTICLE REALIZES JOB CREATION LESS THAN THE ESTIMATED AMOUNT, THE CREDIT
SHALL BE REDUCED BY THE PROPORTION OF ACTUAL JOB CREATION TO THE ESTI-
MATED AMOUNT, PROVIDED THE PROPORTION IS AT LEAST SEVENTY-FIVE PERCENT
OF THE JOBS ESTIMATED.
S 3. Section 359 of the economic development law, as amended by
section 6 of part G of chapter 61 of the laws of 2011, is amended to
read as follows:
S 359. Cap on tax credit. The total amount of tax credits listed on
certificates of tax credit issued by the commissioner for any taxable
year may not exceed the limitations set forth in this section. [Any]
ONE-HALF OF ANY amount of tax credits not awarded for a particular taxa-
ble year may [not] be used by the commissioner to award tax credits in
another taxable year.
Credit components in the aggregate With respect to taxable
shall not exceed: years beginning in:
$ 50 million 2011
$ 100 million 2012
$ 150 million 2013
$ 200 million 2014
$ 250 million 2015
$ 200 million 2016
$ 200 million 2017
$ 200 million 2018
$ 200 million 2019
$ 200 million 2020
$ 200 million 2021
$ 150 million 2022
$ 100 million 2023
$ 50 million 2024
Twenty-five percent of tax credits shall be allocated to businesses
accepted into the program under subdivision four of section three
hundred fifty-three of this article and seventy-five percent of tax
credits shall be allocated to businesses accepted into the program under
subdivision three of section three hundred fifty-three of this article.
Provided, however, if by September thirtieth of a calendar year, the
department has not allocated the full amount of credits available in
that year to either: (i) businesses accepted into the program under
subdivision four of section three hundred fifty-three of this article or
(ii) businesses accepted into the program under subdivision three of
section three hundred fifty-three of this article, the commissioner may
A. 8104 6
allocate any remaining tax credits to businesses referenced in para-
graphs (i) and (ii) of this section as needed; provided, however, that
under no circumstances may the statutory cap be exceeded.
S 4. Section 31 of the tax law, as amended by section 2 of part MM of
chapter 59 of the laws of 2010, is amended by adding a new subdivision
(f-1) to read as follows:
(F-1) CREDIT RECAPTURE FOR UNREALIZED JOB CREATION. IF, IN ANY GIVEN
YEAR, A TAXPAYER WHO HAS SATISFIED THE ELIGIBILITY CRITERIA SPECIFIED IN
SECTION THREE HUNDRED FIFTY-THREE OF THE ECONOMIC DEVELOPMENT LAW REAL-
IZES JOB CREATION LESS THAN THE ESTIMATED AMOUNT, THE CREDIT DESCRIBED
IN THIS SECTION ALLOWED IN THAT YEAR 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.
S 5. This act shall take effect on the sixtieth day after it shall
have become a law.
S 3. This act shall take effect on the same date and in the same
manner as a chapter of the laws of 2013 amending the economic develop-
ment law, the tax law, the administrative code of the city of New York,
the real property tax law and the education law relating to establishing
the START-UP NY program, as proposed in legislative bill number A. 8096,
takes effect.