§ 353 — Eligibility criteria

§ 353. Eligibility criteria. 1. To be a participant in the excelsior\njobs program, a business entity shall operate in New York state\npredominantly:\n (a) as a financial services data center or a financial services back\noffice operation;\n (b) in manufacturing, including in animal and plant fiber textile\nmanufacturing;\n (c) in software development and new media;\n (d) in scientific research and development;\n (e) in agriculture;\n (f) in the creation or expansion of back office operations in the\nstate;\n (g) in a distribution center;\n (h) in an industry with significant potential for private-sector\neconomic growth and development in this state as established by the\ncommissioner in regulations promulgated pursuant to this article. In\npromulgating such regulations the commissioner shall include job and\ninvestment criteria;\n (i) as an entertainment company;\n (j) in music production;\n (k) as a life sciences company;\n (l) as a company operating in one of the industries listed in\nparagraphs (b) through (e) of this subdivision and engaging in a green\nproject as defined in section three hundred fifty-two of this article;\n (m) as a participant operating in one of the industries listed in\nparagraphs (a) through (k) of this subdivision and operating or\nsponsoring child care services to its employees as defined in section\nthree hundred fifty-two of this article;\n (n) as a Green CHIPS project; or\n (o) as a company operating in one of the industries listed in\nparagraphs (a) through (k) of this subdivision and engaging in a\nsemiconductor supply chain project as defined in section three hundred\nfifty-two of this article.\n 2. When determining whether an applicant is operating predominately in\none of the industries listed in subdivision one of this section, the\ncommissioner will examine the nature of the business activity at the\nlocation for the proposed project and will make eligibility\ndeterminations based on such activity.\n 3. For the purposes of this article, in order to participate in the\nexcelsior jobs program, a business entity operating predominantly in\nmanufacturing must create at least five net new jobs; a business entity\noperating predominately in agriculture must create at least five net new\njobs; a business entity operating predominantly as a financial service\ndata center or financial services customer back office operation must\ncreate at least twenty-five net new jobs; a business entity operating\npredominantly in scientific research and development must create at\nleast five net new jobs; a business entity operating predominantly in\nsoftware development must create at least five net new jobs; a business\nentity creating or expanding back office operations must create at least\ntwenty-five net new jobs; a business entity operating predominately in\nmusic production must create at least five net new jobs; a business\nentity operating predominantly as an entertainment company must create\nor obtain at least one hundred net new jobs; or a business entity\noperating predominantly as a distribution center in the state must\ncreate at least fifty net new jobs, notwithstanding subdivision five of\nthis section; or a business entity operating predominately as a life\nsciences company must create at least five net new jobs; or a business\nentity must be a regionally significant project or Green CHIPS project\nas defined in this article; or\n 4. A business entity operating predominantly in one of the industries\nreferenced in paragraphs (a) through (h) or in paragraph (k) of\nsubdivision one of this section but which does not meet the job\nrequirements of subdivision three of this section must have at least\ntwenty-five full-time job equivalents unless such business is a business\nentity operating predominantly in manufacturing then it must have at\nleast five full-time job equivalents and must demonstrate that its\nbenefit-cost ratio is at least ten to one.\n 5. A not-for-profit business entity, a business entity whose primary\nfunction is the provision of services including personal services,\nbusiness services, or the provision of utilities, and a business entity\nengaged predominantly in the retail or entertainment industry, other\nthan a business operating as an entertainment company as defined in this\narticle and other than a business entity engaged in music production,\nand a company engaged in the generation or distribution of electricity,\nthe distribution of natural gas, or the production of steam associated\nwith the generation of electricity are not eligible to receive the tax\ncredit described in this article.\n 6. A business entity must be in compliance with all worker protection\nand environmental laws and regulations. In addition, a business entity\nmay not owe past due state taxes or local property taxes.\n 7. Notwithstanding subdivision sixteen of section three hundred\nfifty-two of this article, the department is hereby authorized to allow\nphase two of a Green CHIPS project to enter into a new and separate\nschedule of benefits which may overlap with the phase one of a Green\nCHIPS project schedule of benefits, for a new ten-year benefit term.\nNotwithstanding paragraph three of subdivision a of section three\nhundred fifty-four of this article, such phase two of a Green CHIPS\nproject shall be admitted into the program. Provided however, for such\nphase two of a Green CHIPS project, the new benefit term shall\nexclusively be provided for net new investments, new research and\ndevelopment expenditures, and net new job creation above the commitments\noutlined in the schedule of benefits for a business' phase one of a\nGreen CHIPS project with the department. Assuming the requirements of\nthis article have been met, both a Green CHIPS project and any phase two\nof such project shall be eligible for benefits under section three\nhundred fifty-five of this article.\n