§ 353. Eligibility criteria. 1. To be a participant in the excelsior jobs program, a business entity shall operate in New York state predominantly:(a) as a financial services data center or a financial services back office operation;
(b) in manufacturing, including in animal and plant fiber textile manufacturing;
(c) in software development and new media;
(d) in scientific research and development;
(e) in agriculture;
(f) in the creation or expansion of back office operations in the state;
(g) in a distribution center;
(h) in an industry with significant potential for private-sector economic growth and development in this state as established by the commissioner in regulations promulgated pursuant to this article. In promulgating such regulations the commissioner shall include job and investment criteria;
(i) as an entertainment company;
(j) in music production;
(k) as a life sciences company;
(l) as a company operating in one of the industries listed in paragraphs (b) through (e) of this subdivision and engaging in a green project as defined in section three hundred fifty-two of this article;
(m) as a participant operating in one of the industries listed in paragraphs (a) through (k) of this subdivision and operating or sponsoring child care services to its employees as defined in section three hundred fifty-two of this article; or
(n) as a Green CHIPS project. 2. When determining whether an applicant is operating predominately in one of the industries listed in subdivision one of this section, the commissioner will examine the nature of the business activity at the location for the proposed project and will make eligibility determinations based on such activity. 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 five net new jobs; a business entity operating predominately in agriculture must create at least 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 twenty-five net new jobs; a business entity operating predominantly in scientific research and development must create at least five net new jobs; a business entity operating predominantly in software development must create at least five net new jobs; a business entity creating or expanding back office operations must create at least twenty-five net new jobs; a business entity operating predominately in music production must create at least five net new jobs; a business entity operating predominantly as an entertainment company must create or obtain at least one hundred net new jobs; or a business entity operating predominantly as a distribution center in the state must create at least fifty net new jobs, notwithstanding subdivision five of this section; or a business entity operating predominately as a life sciences company must create at least five net new jobs; or a business entity must be a regionally significant project or Green CHIPS project as defined in this article; or 4. A business entity operating predominantly in one of the industries referenced in paragraphs (a) through (h) or in paragraph (k) of subdivision one of this section but which does not meet the job requirements of subdivision three of this section must have at least twenty-five full-time job equivalents unless such business is a business entity operating predominantly in manufacturing then it must have at least five full-time job equivalents and must demonstrate that its benefit-cost ratio is at least ten to one. 5. A not-for-profit business entity, a business entity whose primary function is the provision of services including personal services, business services, or the provision of utilities, and a business entity engaged predominantly in the retail or entertainment industry, other than a business operating as an entertainment company as defined in this article and other than a business entity engaged in music production, and a company engaged in the generation or distribution of electricity, the distribution of natural gas, or the production of steam associated with the generation of electricity are not eligible to receive the tax credit described in this article. 6. A business entity must be in compliance with all worker protection and environmental laws and regulations. In addition, a business entity may not owe past due state taxes or local property taxes. 7. Notwithstanding subdivision sixteen of section three hundred fifty-two of this article, the department is hereby authorized to allow phase two of a Green CHIPS project to enter into a new and separate schedule of benefits which may overlap with the phase one of a Green CHIPS project schedule of benefits, for a new ten-year benefit term. Notwithstanding paragraph three of subdivision a of section three hundred fifty-four of this article, such phase two of a Green CHIPS project shall be admitted into the program. Provided however, for such phase two of a Green CHIPS project, the new benefit term shall exclusively be provided for net new investments, new research and development expenditures, and net new job creation above the commitments outlined in the schedule of benefits for a business' phase one of a Green CHIPS project with the department. Assuming the requirements of this article have been met, both a Green CHIPS project and any phase two of such project shall be eligible for benefits under section three hundred fifty-five of this article.
