Section 135. Premium credits for safety investment

1. An employer insured
  by  a  licensed  insurer  or  the  state  insurance  fund  for  workers'
  compensation  insurance  may apply for a credit against the premiums for
  such coverage provided such employer  is  not  currently  receiving  any
  statutory safety incentive or sanction authorized under this chapter for
  amounts  invested  by  such  employer  in  the  creation of a safer work
  environment which meets the requirements of this section. The credit may
  be applied for a renewable period not to exceed three years. For any one
  year, the credit shall equal, if actuarially appropriate, an  amount  up
  to  five  percent  of  the total amount invested as calculated under the
  provisions of this section but shall not exceed fifteen percent of  such
  employer's  annual  earned  premium  for  that  year  in accordance with
  workers' compensation rating board manual rates.  An  employer  applying
  for  such  credit must provide evidence required by rules or regulations
  promulgated by the superintendent of insurance that the investment would
  result in a safer work environment, with  such  evidence  to  include  a
  written   opinion  by  a  certified  safety  professional,  a  certified
  industrial hygienist or a licensed professional engineer describing  the
  items  included  in  the  investment  and  an  analysis of how they will
  substantially enhance the safety of the work environment.
    2. It shall be  the  sole  responsibility  of  the  superintendent  of
  insurance,  with  the assistance of a committee, to determine whether an
  employer who has made an application is eligible for  a  premium  credit
  and  the  extent  of  any  such  credit,  and to otherwise assist in the
  administration of the premium credit program, including the promulgation
  of insurance department rules and regulations for the implementation  of
  the program.
    In  addition  to  the superintendent of insurance, the committee shall
  consist of:
    (a) a representative from the department of labor;
    (b) a representative from the department of economic development;
    (c) a representative from the state insurance fund;
    (d) an individual with an actuarial background and experience  in  the
  field of workers' compensation;
    (e) an individual with a background in safety engineering appointed by
  the  governor  upon  recommendation  by  the  New  York  State  American
  Federation of Labor-Congress of Industrial Organizations;
    (f) an individual with a background in safety engineering appointed by
  the governor upon recommendation of the Business Council of the State of
  New York;
    (g) an individual with a background in safety engineering appointed by
  the governor upon recommendation of the insurance industry; and
    (h) an additional member of the committee with respect  to  any  given
  application  for  a  premium  credit shall be the current insurer of the
  applicant.
    All departments, divisions, boards, offices, and  public  corporations
  of  the state, and the workers' compensation rating board, shall provide
  such data, information or other assistance as the committee may  require
  to fulfill its purposes.
    The  committee  shall  serve at the pleasure of the governor and shall
  receive no compensation except for  reasonable  and  necessary  expenses
  incurred  in  the  course  of  performing  the  official  duties  of the
  committee. Such expenses shall be paid from  application  fees  paid  in
  accordance  with rules and regulations promulgated by the superintendent
  of insurance.
    3. Premium credit calculations with respect to investments for  safety
  shall  be  based only upon tangible personal property and other tangible
  property, including buildings and  structural  components  of  buildings

  which  make for a safer work environment, which 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,
  have a situs in this state and are:
    (a) principally used by the premium payer in the production  of  goods
  by  manufacturing, processing, assembling, refining, mining, extracting,
  farming,  agriculture,  horticulture,   floriculture,   viticulture   or
  commercial fishing,
    (b)  industrial  waste  treatment  facilities or air pollution control
  facilities, used in the premium payer's trade or business, or
    (c) research and development property.
    For purposes of this section,  the  term  "goods"  shall  not  include
  electricity.
    4.  For  purposes  of  this  section,  the following definitions shall
  apply:
    (a) Manufacturing shall mean the process of working raw materials into
  wares suitable for use or which gives new shapes,  new  quality  or  new
  combinations  to  matter  which already has gone through some artificial
  process by the use of machinery, tools,  appliances  and  other  similar
  equipment.  Property  used  in  the  sale  of  goods  at  retail  or the
  production of goods shall include machinery, equipment or other tangible
  property which is principally used in the repair and  service  of  other
  machinery,  equipment or other tangible property used principally in the
  production of goods  and  shall  include  all  facilities  used  in  the
  production  operation,  including  storage  of  material  to  be used in
  production and of the products that are produced.
    (b) Research and development property shall  mean  property  which  is
  used  for  purposes  of  research and development in the experimental or
  laboratory sense. Such purposes shall  not  be  deemed  to  include  the
  ordinary  testing  or  inspection  of  materials or products for quality
  control,  efficiency  surveys,  management  studies,  consumer  surveys,
  advertising,  promotions,  or  research  in  connection  with  literary,
  historical or similar projects.
    (c)  Industrial  waste  treatment  facilities  shall   mean   property
  constituting   facilities   for   the   treatment,   neutralization   or
  stabilization of  industrial  waste  and  other  wastes  (as  the  terms
  "industrial  waste" and "other wastes" are defined in section 17-0105 of
  the environmental conservation law) from a point  immediately  preceding
  the  point  of  such  treatment,  neutralization or stabilization to the
  point of disposal, including  the  necessary  pumping  and  transmitting
  facilities,  but  excluding  such  facilities  installed for the primary
  purpose of salvaging materials which are  usable  in  the  manufacturing
  process or are marketable.
    (d)  Air pollution control facilities shall mean property constituting
  facilities which remove, reduce, or render less noxious air contaminants
  emitted from an air contamination source (as the terms "air contaminant"
  and "air contamination source" are defined in  section  19-0107  of  the
  environmental  conservation  law) from a point immediately preceding the
  point of such removal, reduction or rendering to the point of  discharge
  of  air  meeting  emission standards as established by the department of
  environmental conservation, but excluding such facilities installed  for
  the  primary  purpose  of  salvaging  materials  which are usable in the
  manufacturing process or are marketable and excluding  those  facilities
  which  rely  for the efficacy on dilution, dispersion or assimilation of
  air contaminants in the ambient air  after  emission.  Such  term  shall
  further  include flue gas desulfurization equipment and attendant sludge
  disposal facilities, fluidized bed boilers, precombustion coal  cleaning

  facilities  or other facilities that conform with this section and which
  comply with the provisions of the state acid deposition control act  set
  forth   in   title   nine  of  article  nineteen  of  the  environmental
  conservation law.
    5.  A  premium credit under this section shall be allowed with respect
  to industrial waste  treatment  facilities  and  air  pollution  control
  facilities only on condition that such facilities have been certified by
  the  state  commissioner  of  environmental  conservation  or his or her
  designated  representative,  pursuant  to  subdivision  one  of  section
  17-0707  or  subdivision  one  of  section  19-0309 of the environmental
  conservation  law,  as  complying  with  applicable  provisions  of  the
  environmental  conservation  law,  the  public  health law and the state
  sanitary code and codes, rules, regulations, permits  or  orders  issued
  pursuant thereto.
    6.  Tangible  personal property and other tangible property, including
  buildings and structural components  of  buildings,  which  an  employer
  leases  to  any  other person or corporation are not to be considered as
  investments for safety in premium credit calculations. For  purposes  of
  the  preceding  sentence,  any contract or agreement to lease or rent or
  for a license  to  use  such  property  shall  be  considered  a  lease.
  Provided, however, in determining whether an employer shall be allowed a
  credit  under  this  section with respect to such property, any election
  made with respect  to  such  property  pursuant  to  the  provisions  of
  paragraph  eight of subsection (f) of section one hundred sixty-eight of
  the  internal  revenue  code,  as  such  paragraph  was  in  effect  for
  agreements  entered  into  prior  to  January  first,  nineteen  hundred
  eighty-four, shall be disregarded.
    7. Subject to the limitations provided  in  subdivision  one  of  this
  section,  the  amount  of  a  premium  credit  shall be a percent of the
  investment credit base. The investment credit base is the cost or  other
  basis  for federal income tax purposes of tangible personal property and
  other tangible property, including buildings and  structural  components
  of  buildings,  as  described  in subdivision three of this section. The
  amount of the percent to be applied against such investment credit  base
  shall  be  based upon the useful life of such tangible personal property
  and other tangible property, and the  extent  to  which  the  investment
  would result in a safer work environment and upon such other actuarially
  appropriate  evidence offered by the applicant that the investment would
  result in a safer work  environment.  The  superintendent  of  insurance
  shall promulgate rules and regulations determining how the percentage to
  be applied against the investment credit base shall be calculated.
    8.   The  superintendent  of  insurance  shall  promulgate  rules  and
  regulations for the purpose of determining how to calculate  the  period
  during which an applicant may receive a premium credit.
    9.  In  the event an employer which applied for and received a premium
  credit pursuant to this section moves or relocates its business  outside
  of  this  state  during  the period in which it receives the benefits of
  such credit, such employer shall be  responsible  for  repaying  to  the
  insurer the entire amount of such credit already received.
    10.  An  employer  who  is  obligated  to but does not comply with the
  requirements of section one hundred thirty-four of this article  is  not
  eligible to apply for premium credits under this section.
    11.  An  employer  shall be eligible for a credit against premiums for
  workers' compensation insurance coverage in an amount up to five percent
  of such premiums for such other safety measures that may be  implemented
  by  an  employer  and which meet the standard for such premium credit as
  established by  the  superintendent.  Such  safety  measures  shall  not

  include  those measures provided for in this section of this article, or
  apply to such industries provided for in this section.