N.Y. Comp. Codes R. & Regs. tit. 21 § 4202.3

Current through Register Vol. 46, No. 50, December 11, 2024

Section 4202.3 - Definitions

(a) Adjustment plan shall mean an industrial firm's internal strategy and plan for resolving productivity and competitive problems in order to be able to operate profitably in the future.

(b) Closing, partial closing, or relocation out-of-state shall mean the permanent cessation of an entire business at a location within the State or of a major discrete portion of a business, or relocation out-of-state of a business, based on specific actions by a firm, or its parent, or evidence of factors that would support a conclusion that a closing, partial closing or relocation out-of-state is likely to occur.

(c) Commissioner shall mean the Commissioner of Economic Development.

(d) Corporate restructuring or turnaround plan shall mean measures to be undertaken by a potentially viable firm that faces the likelihood of a closing, partial closing or relocation out of New York State and the loss of substantial numbers of jobs.

(e) Department shall mean the Department of Economic Development.

(f) Full feasibility study shall mean an investigation and evaluation of the viability or potential profitability of an industrial firm or group of industrial firms, including those firms for which buy-out assistance has been requested or those seeking to implement a corporate restructuring or corporate turnaround. A feasibility study shall include, but not be limited to, an assessment of the potential profitability and prospects for job preservation of the potential profitability and prospects for job preservation and future job growth; the condition, stability and growth potential of the industry in domestic and international markets; the financial condition; essential changes and productivity improvements needed to remain viable; the firm's overall market and market niches in relation to its industry; the quality of management and the firm's ability to innovate and change; labor and management relations; work force skills and training needs; whether adequate time exists to effectuate a local buy-out or revitalize a firm; relations with suppliers and customers; and cooperation of the sellers. A full feasibility study may include the planning, design and introduction of remedial measures to effect a local buy-out, or to improve productivity and competitiveness. A more detailed description of the assistance available for a feasibility study may be found at Part 4203 of this Title.

(g) Group of industrial firms shall mean two or more industrial firms with common problems.

(h) Industrial effectiveness assistance shall mean any or all of the assistance made available under the Industrial Effectiveness Program as administered by the department with the cooperation and assistance of the UDC, other than the attraction, retention and expansion assistance provided pursuant to section 7(b)(3) of chapter 839 of the Laws of 1987.

(i) Industrial firm shall mean a manufacturing firm involved with extracting, smelting, recovering, developing, preparing, compounding, converting, assembling or producing, in any manner, minerals, raw materials, products or substances of any kind or nature, and shall include facilities related thereto for storage, warehousing or distribution, for research and development or for the discovery of new, and the refinement of known, substances, processes and products. For local buy-out assistance, such a firm shall also include an ongoing business, the assets of an existing firm, or the assets of a firm that has been closed for no more than one year as of the date of application to the department or UDC for assistance.

(j) Interagency advisory committee shall mean a committee which shall be chaired by the commissioner or his designee, and shall consist of representatives of the New York State Job Development Authority, UDC, New York State Science and Technology Foundation and the department, and other appropriate agencies as determined by the commissioner.

(k) Local buy-out shall mean the transfer of the ownership and control of a viable industrial firm to its employees or managers, or to other investors resident in New York State, where such transfer will create or retain substantial numbers of private sector jobs by preventing the closing, partial closing, or the relocation out-of-state of an industrial firm. A more detailed description of the assistance available for a local buy-out may be found at Parts 4203 and 4204 of this Title.

(l) Medium-sized industrial firm shall mean an industrial firm that employs less than 500 persons within the State on a full-time basis.

(m) Minority business enterprise shall mean any business enterprise which is at least 51 percent owned by, or in the case of a publicly owned business, at least 51 percent of the stock of which is owned by, minority group members where such ownership interest is real, substantial and continuing, and where such minority group members have the authority to independently control the day-to-day business decisions of the entity.

(n) Minority-group member shall mean a United States citizen or permanent resident alien who is and can demonstrate membership in one of the following groups:

(1) Black persons having origin in any of the Black African racial groups not of Hispanic origin;

(2) Hispanic persons of Mexican, Puerto Rican, Dominican, Cuban, Central or South American descent, of either Indian or Hispanic origin, regardless of race;

(3) Asian and Pacific Islander persons having origins in the Far East, Southeast Asia and Indian subcontinent, or the Pacific Islands; or

(4) American Indian or Alaskan Native persons having origins in any of the original peoples of North America.

(o) Potential for future profitability shall mean that a reasonable prospect exists that the firm can remain or become competitive and profitable and preserve or create jobs for a substantial period of time.

(p) Preliminary feasibility study shall mean a preliminary diagnosis and assessment within a short period of time of an industrial firm's problems, opportunities and potential viability, the feasibility of any proposed activity, and such other assistance as may be required.

(q) Productivity assessment shall mean an evaluation of the existing and potential productivity and profitability of an industrial firm or group of industrial firms and recommendations for productivity improvements, including but not limited to analysis of products, market position, financial condition, ownership structure, production processes, labor/management relations, worker skills and training needs, plant and equipment, and business strategy. A productivity assessment may include the planning, design and introduction of remedial measures to improve productivity and competitiveness. Productivity assessments may be of four types as follows:

(1) Preliminary productivity assessment shall mean an assessment to obtain within a short period of time a general overview and impression of an industrial firm's productivity, competitive situation and potential profitability.

(2) Full productivity assessment shall mean an in-depth evaluation of the existing and potential productivity and profitability of an industrial firm or group of firms, which includes a diagnosis of problems, weaknesses, strengths and opportunities, and which may include the planning, design and introduction of remedial measures to improve productivity and competitiveness.

(3) Limited productivity assessment shall mean an in-depth evaluation of one or more specific productivity or competitive problems of an industrial firm or group of firms which is causing loss of competitiveness and profitability in circumstances where a full productivity assessment is not warranted; or short-term management consulting services of a specialized nature to small- or medium-sized industrial firms.

(4) Productivity assessment for groups of industrial firms shall mean assistance to a group of industrial firms with common competitive problems in diagnosing their competitiveness situations, profitability and viability, and devising joint remedial strategies for resolving them. A more detailed description of the assistance available for each type of productivity assessment may be found at Part 4204 of this Title.

(r) Program shall mean the Industrial Effectiveness Program created by the Omnibus Economic Development Act of 1987, chapter 839 of the Laws of 1987, other than expansion, attraction, retention and assistance provided pursuant to section 7(b)(3) of such chapter.

(s) Project loans shall mean loans to industrial firms pursuant to section 7(b)(2) of the Omnibus Economic Development Act of 1987.

(t) Purchasing group shall mean employees, managers, or other investors resident in the State who are contemplating a local buy-out of an industrial firm located in the State.

(u) Small-sized industrial firm shall mean an industrial firm that employs 100 or less persons within the State on a full-time basis.

(v) Specialized industrial effectiveness financial assistance shall mean working capital loans for costs associated with:

(1) introduction of new production processes and management systems;

(2) expansion or diversification of product lines;

(3) expansion into new markets;

(4) the redesign of production facilities; or

(5) implementing a corporate restructuring or turnaround plan for an industrial firm that is potentially viable, but faces the likelihood of a closing, partial closing or relocation out of New York State, and the loss of substantial numbers of jobs; and

(6) subordinated loans for up to 10 percent of the cost of a local buy-out to effect the transfer of the ownership and control of a viable industrial firm to its employees, managers or other investors resident in the State, all as more fully set forth in Part 4205 of this Title.

(w) Substantial numbers of jobs shall mean at least 25 jobs will be created or retained over a substantial period of time, or a fewer number of jobs where the firm represents a significant portion of total employment in the community, or where the closing, partial closing or relocation out-of-state of a firm is likely to have a major adverse impact on a community.

(x) Transfer of ownership and control shall mean a plan to transfer to a purchasing group within a period not exceeding 10 years at least 51 percent of the ownership interest required to exercise authority and control over the affairs of a firm.

(y) UDC shall mean the New York State Urban Development Corporation, created by chapter 174 of the Laws of 1968, as amended.

(z) UDC Act shall mean chapter 174 of the Laws of 1968, as amended.

(aa) Viable industrial firm shall mean an industrial firm which is profitable and competitive, or which demonstrates the capacity to become profitable and competitive, and to develop as a successful business, within a reasonable period of time.

(bb) Women-owned business enterprise means any business enterprise which is at least 51 percent owned by, or in the case of a publicly owned business at least 51 percent of the stock of which is owned by, citizens or permanent resident aliens who are women, where such ownership interest is real, substantial and continuing and where such persons have the authority to independently control the day-to-day business decisions of the entity.

N.Y. Comp. Codes R. & Regs. Tit. 21 § 4202.3