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STATE OF OKLAHOMA
2nd Session of the 58th Legislature (2022)
SENATE BILL 1859 By: David
AS INTRODUCED
An Act relating to the Oklahoma Quality Jobs P rogram
Act; amending 68 O.S. 2021, S ections 3603 and 3604,
which relate to definitions and quarterly incentive
payments; adding net benefit rate limit for certain
industry; modifying qualification requirement s for
certain industry; updating statutory language;
updating statutory reference; and providing an
effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 68 O.S. 2021, Section 3603, is
amended to read as follows:
Section 3603. A. As used in the Oklahoma Quality Jobs Program
Act:
1. a. “Basic industry” means:
(1) those manufacturing activities defined or
classified in the NAICS Manual under Industry
Sector Nos. 31, 32 and 33, Industry Group No.
5111 or Industry No. 11331,
(2) those electric power generation, transmiss ion and
distribution activities defined or classif ied in
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the NAICS Manual under U.S. Industry Nos. 221111
through 221122, if:
(a) an establishment engaged therein qualifies
as an exempt wholesale generator as defined
by 15 U.S.C., Section 79z -5a,
(b) the exempt wholesale genera tor facility
consumes from sources located within the
state at least ninety percent (90%) of the
total energy used to produce the electrical
output which qualifies for the specialized
treatment provided by the Energy Policy Act
of 1992, P.L. 102-486, 106 Stat. 2776, as
amended, and federal regulations adopted
pursuant thereto,
(c) the exempt wholesale generator facility
sells to purchasers located outside the
state for consumption in activities located
outside the state at least ninety percent
(90%) of the total electrical energy outp ut
which qualifies for the specialized
treatment provided by the Energy Policy Act
of 1992, P.L. 102-486, 106 Stat. 2776, as
amended, and federal regulations adopted
pursuant thereto, and
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(d) the facility is constructed on or af ter July
1, 1996,
(3) those administrative and facilities support
service activities defined or classified in the
NAICS Manual under Industry Group Nos. 5611 and
5612, Industry Nos. 51821, 519130, 52232 and
56142 or U.S. Industry Nos. 524291 and 551114,
those other support activities for air
transportation defined or classified in the NAICS
Manual under Industry Group No. 488190, and those
support, repair, and maintenanc e service
activities for the wind industry defined or
classified in the NAICS Manual und er Industry
Group No. 811310,
(4) those professional, scientific and technical
service activities defined or classified in the
NAICS Manual under U.S. Industry Nos. 541 710 and
541380,
(5) distribution centers for retail or wholesale
businesses defined or c lassified in the NAICS
Manual under Sector No. 42, if forty percent
(40%) or more of the inventory processed through
such warehouse is shipped out -of-state,
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(6) those adjustment and collection service
activities defined or classified in the NAICS
Manual under U.S. Industry No. 561440 , if
seventy-five percent (75%) of the loans to be
serviced were made by out -of-state debtors,
(7) (a) those air transportation activities d efined
or classified in the NAICS Manual under
Industry Group No. 4811, if the following
facilities are located in t his state:
(i) the corporate headquarters of an
establishment classified therein, and
(ii) a facility or facilities at which
reservations for transportation
provided by such an establishment are
processed, whether such services are
performed by employees o f the
establishment, by employees of a
subsidiary of or other entity
affiliated with the establishment or by
employees of an entity with who m the
establishment has contracted for the
performance of such ser vices; provided,
this provision shall not disquali fy an
establishment which uses an out -of-
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state entity or employees for some
reservations services, or
(b) those air transportation activitie s defined
or classified in the NAICS Manual under
Industry Group No. 4811, if an establi shment
classified therein ha s or will have within
one (1) year sales of at least seventy -five
percent (75%) of its total sales, as
determined by the Incentive Approval
Committee pursuant to the provisions of
subsection B of this secti on, to out-of-
state customers or buyers, to in-state
customers or buyers if the product or
service is resold by the purchaser to an
out-of-state customer or buyer for ultimate
use, or to the federal government,
(8) flight training services activities defin ed or
classified in the NAICS Manual under U.S.
Industry Group No. 611512, which for purposes of
the Oklahoma Quality Jobs Program Act shall
include new direct jobs for which gross payroll
existed on or after January 1, 2003, as
identified in the NAICS Man ual,
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(9) the following, if an establishment classi fied
therein has or will have within one (1) year
sales of at least seventy -five percent (75%) of
its total sales, as determined by the Ince ntive
Approval Committee pursuant to the provisions of
subsection B of this section, to out-of-state
customers or buyers, to in-state customers or
buyers if the product or service is resold by the
purchaser to an out-of-state customer or buyer
for ultimate use, or to the federal government:
(a) those transportation and w arehousing
activities defined or classified in the
NAICS Manual under Industry Subsector No.
493, if not otherwise listed in this
paragraph, Industry Subsector Nos. 482 and
484 and Industry Group Nos. 4884 through
4889,
(b) those passenger transportation a ctivities
defined or classified in the NAICS Manua l
under Industry Nos. 561510 and 561599,
(c) those freight or cargo transportation
activities defined or classified in the
NAICS Manual under Industry No. 541614,
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(d) those insurance activities defined or
classified in the NAICS Manual under
Industry Group No. 5241,
(e) those services to dwellings and other
buildings, as defined or classified in the
NAICS Manual under Industry Group No. 5617,
excluding U.S. Industry Nos. 561730, 56171,
56172, 56174 and 56179 ,
(f) those equipment rental and leasing
activities defined or classified in the
NAICS Manual under Industry Group No. 5324,
(g) those information technology and other
computer-related service activities defined
or classified in the NAICS Manual under
Industry Group Nos. 5112, 5182, 5191 and
5415,
(h) those business support service activities
defined or classified in the NAICS Manual
under U.S. Industry Nos. 561410 through
561430, excluding 56143, and Industry No.
51911,
(i) those medical and diagnostic lab oratory
activities defined or classified in the
NAICS Manual under Industry Group No. 6215,
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(j) those professional, scientific and technical
service activities defined or classified in
the NAICS Manual under Industry Group Nos.
5412, 5414, 5415, 5416 and 5 417, Industry
Nos. 54131, 54133, 54136 and 54137, and U.S.
Industry No. 541990, if not otherwise listed
in this paragraph,
(k) those communication service activities
defined or classified in the NAICS Manual
under Industry Nos. 51741 and 51791,
(l) those refuse systems activiti es defined or
classified in the NAICS Manual under
Industry Group No. 5622, provided that the
establishment is primarily engaged in the
capture and distribution of meth ane gas
produced within a landfill,
(m) general wholesale distribu tion of groceries,
defined or classified in the NA ICS Manual
under Industry Group Nos. 4244 and 4245,
(n) those activities relating to processing of
insurance claims, defined or classified i n
the NAICS Manual under U.S. Industry Nos.
524210 and 524292; pro vided, activities
described in U.S. Industry Nos. 524210 and
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524292 in the NAICS Manual other than
processing of insurance claims shall not be
included for purposes of this subdivision,
(o) those agricultural activities classified in
the NAICS Manual under U.S. Industry Nos.
112120 and 112310,
(p) those professional organization activities
classified in the NAICS Manual under U.S.
Industry No. 813920,
(q) alternative energy structure construc tion
classified in the NAICS Manual under U.S.
Industry No. 237130,
(r) solar reflective coating application
classified in the NAICS Manual under U.S.
Industry No. 238160,
(s) solar heating equipment installation
classified in the NAICS Manual under U.S.
Industry No. 238220,
(t) those wired telecommunications carriers
classified in the NAICS Manual under U.S.
Industry No. 517110, and
(u) those securities, commodity contracts and
investment activities classified in the
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NAICS Manual under Industry Subsector N o.
523,
(10) those activities related to extraction or
pipeline transportation of petrol eum, natural gas
or refined petroleum products, defined or
classified in the NAICS Manual under Industry
Group No. 2111, 213111, 213112 or 486, subject to
the limitations provided in paragraph 3 of this
subsection and paragraph 3 of s ubsection B of
this section,
(11) those activities performed by the federal
civilian workforce at a facility of the Federal
Aviation Administration located in this state if
the Director of the Oklahoma Department of
Commerce determines or is notified that the
federal government is soliciting proposals or
otherwise inviting states to compete for
additional federal civilian employment or
expansion of federal civilian employment at such
facilities,
(12) those activities defined or classified in the
NAICS Manual under U.S. Industry No. 711211 (2007
version),
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(13) those real estate or brokerage activities
classified in the NAICS Manual under U.S.
Industry No. 53120 for which at least seventy -
five percent (75%) of the establishment ’s
revenues are attributed to out -of-state sales and
at least seventy-five percent (75%) of the real
estate transactions generating those revenues are
attributed to real property located outside the
State of Oklahoma this state, or
(14) those support activities for rail transportation
and those support activities for water
transportation defined or classified in the NAICS
Manual under U.S. Industry Nos. 4882 and 4883.
b. An establishment described in subparagraph a of this
paragraph shall not be considered to be engaged in a
basic industry unless it offers, or will of fer within
one hundred eighty (180) days of employment, a basic
health benefits plan to the individuals it employs in
new direct jobs in this state which is determined by
the Oklahoma Department of Commerce to consist of the
following elements or elements substantially
equivalent thereto:
(1) not more than fifty percent (50%) of the premium
shall be paid by the employee,
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(2) coverage for basic hospital care,
(3) coverage for physician care,
(4) coverage for mental health care,
(5) coverage for substance abu se treatment,
(6) coverage for prescripti on drugs, and
(7) coverage for prenatal care;
2. “Change-in-control event” means the transfer to one or more
unrelated establishme nts or unrelated persons, of either:
a. beneficial ownership of more than fifty perc ent (50%)
in value and more than fifty pe rcent (50%) in voting
power of the outstanding equity securities of the
transferred establishment, or
b. more than fifty percent (5 0%) in value of the assets
of an establishment.
A transferor shall be treated as rel ated to a transferee if more
than fifty percent (50%) of the voting interests of the transferor
and transferee are owned, directly or indirectly, by the other or
are owned, directly or indirectly, by the same person or persons,
unless such transferred esta blishment has an outstanding class of
equity securities registered under Sections 12(b) or 15(d) of the
Securities Exchange Act of 1934, as amended, in which event the
transferor and transferee will be treated as unrelated; pro vided, an
establishment applying for the Oklahoma Quality Jobs Program Act as
a result of a change -in-control event is required to apply within
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one hundred eighty (180) days of the change -in-control event to
qualify for consideration. An establishment ent ering the Oklahoma
Quality Jobs Program Act as the result of a change-in-control event
shall be required to maintain a level of new direct jobs as agreed
to in its contract with the Oklahoma Department of Commerce and to
pay new direct jobs an average annu alized wage which equals or
exceeds one hundred twenty-five percent (125%) of the average county
wage as that percentage is determined by the Oklahoma Department of
Commerce based upon the most recent U.S. Department of Commerce data
for the county in whic h the new jobs are located. For purposes of
this paragraph, healthcar e premiums paid by the applicant for
individuals in new direct jobs shall not be included in the
annualized wage. Such establishme nt entering the Oklahoma Quality
Jobs Program Act as th e result of a change -in-control event shall be
required to retain the contracted average annualized wage and
maintain the contracted maintenance level of new direct jobs numbers
as certified by the Oklahoma Tax Commission. If the required
average annualized wage or the required new d irect jobs numbers do
not equal or exceed such con tracted level during any quarter, the
quarterly incentive payments shall not be made and shall not be
resumed until such time as su ch requirements are met. An
establishment described in this paragraph shal l be required to repay
all incentive payments rece ived under the Oklahoma Quality Jobs
Program Act if the establishment is determined by the Tax Commission
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to no longer have busines s operations in the state within three (3)
years from the beginning of the calendar quarter for which the first
incentive payment claim is filed;
3. “New direct job”:
a. means full-time-equivalent employment in this state in
an establishment which has qua lified to receive an
incentive payment pursuan t to the provisions of the
Oklahoma Quality Jobs Program Act which employment d id
not exist in this state prior to the date of approval
by the Department of the application of the
establishment pursuant to the provisions of Section
3604 of this title and w ith respect to an
establishment qualifying for incentive payments
pursuant to division (12) of subparagraph a of
paragraph 1 of this subsection shall not include
compensation paid to an employee or independent
contractor for an athletic contest conducted i n the
state if the compensati on is paid by an entity that
does not have its pri ncipal place of business in the
state or that does not own real or personal property
having a market value of at least One Million Dollars
($1,000,000.00) located in the state, and the
employees or independ ent contractors of such entity
are compensated to compete against the employees or
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independent contractors of an establishment that
qualifies for incentive payments pursuant to divi sion
(12) of subparagraph a of paragraph 1 of this
subsection and which is organized under Oklahoma law
or that is lawfully r egistered to do business in the
state and which does have its principal place of
business located in the state and owns real or
personal property having a market value of at lea st
One Million Dollars ($1,00 0,000.00) located in the
state; provided, that if an application of an
establishment is approved by the Oklahoma Department
of Commerce after a change -in-control event and the
Director of the Oklahoma Department of Commerce
determines that the jobs located at such establishment
are likely to leave the sta te, “new direct job” shall
include employment that existed in this state prior to
the date of application which is retained in this
state by the new establishment following a ch ange in
control event, if suc h job otherwise qualifies as a
new direct job, and
b. shall include full-time-equivalent employment in this
state of employees who are employed by an employment
agency or similar en tity other than the establishment
which has qualified to receive an incenti ve payment
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and who are leased or otherwise provide d under
contract to the qualified establishment, if such job
did not exist in this state prior to the date of
approval by the Depar tment of the application of the
establishment or the job otherwise qualifie s as a new
direct job following a change-in-control event. A job
shall be deemed to exist in this state prior to
approval of an application if the activities and
functions for which the particular job exists have
been ongoing at any time within six (6) mo nths prior
to such approval. With respect to esta blishments
defined in division (10) of subparagraph a of
paragraph 1 of this subsection, new direct jobs shall
be limited to those jobs directly comprising the
corporate headquarters of or directly relating to
manufacturing, maintenance, administrative, fi nancial,
engineering, surveying, geological or geophysical
services performed by the establishment. Under no
circumstances shall e mployment relating to field
services be considered new direct jobs;
4. “Estimated direct state benefits” means the tax revenues
projected by the Department to accrue to the state as a result of
new direct jobs;
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5. “Estimated direct state costs ” means the costs projected by
the Department to accrue t o the state as a result of ne w direct
jobs. Such costs shall include, but not be limited to:
a. the costs of education of new state resident children,
b. the costs of public health, public safety and
transportation services to be provided to new state
residents,
c. the costs of other state services to be provided to
new state residents, and
d. the costs of other state services;
6. “Estimated net direct state benefits ” means the estimated
direct state benefits less the estimated direct state costs;
7. “Net benefit rate” means the estimated net direct state
benefits computed as a per centage of gross payroll; provided:
a. except as otherwise provided in this paragraph, the
net benefit rate may be variable and sha ll not exceed
five percent (5%),
b. the net benefit rate shall not exceed s ix percent (6%)
in connection with an establishmen t which is owned and
operated by an entity which has been awarded a United
States Department of Defense contract for which:
(1) bids were solicited and accepted by the United
States Department of Defense fr om facilities
located outside this state,
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(2) the term is or is renewable for not less than
twenty (20) years, and
(3) the average annual salary, excluding benefits
which are not subject to Oklahoma income taxes,
for new direct jobs created as a direct res ult of
the awarding of the contract is projected b y the
Oklahoma Department of Commerce to equal or
exceed Forty Thousand Dollars ($40,000.00) within
three (3) years of the date of the first
incentive payment,
c. except as otherwise provided in subparagrap h d of this
paragraph, in no event shall incentive payments,
cumulatively, exceed the estimated net direct state
benefits,
d. the net benefit rate shall be five percent (5%) for an
establishment locating:
(1) in an opportunity zone located in a high -
employment county, as such terms are defined in
subsection G of Section 3604 of this title, or
(2) in a county in which:
(a) the per capita personal income, as
determined by the Departmen t, is eighty-five
percent (85%) or less of the statewide
average per capita personal income,
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(b) the population has decreased over the
previous ten (10) years, as determined by
the Oklahoma Department of Commerce based on
the most recent U.S. Department of Commerce
data, or
(c) the unemployment rate e xceeds the lesser of
five percent (5%) or two percentage points
above the state average unemployment rate as
certified by the Oklahoma Employment
Security Commission,
e. the net benefit rate shall not exceed si x percent (6%)
in connection with an establish ment which:
(1) is, as of the date of application, receiving
incentive payments pursuant to the Oklahoma
Quality Jobs Program Act and has been receiving
such payments for at least one (1) year prior to
the date of application, and
(2) expands its operation s in this state by creating
additional new direct jobs which pay average
annualized wages which equal or exceed one
hundred fifty percent (150%) of the average
annualized wages of new direct jobs on which
incentive payments were received during the
preceding calendar year,
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f. with respect to an establishment defined or classified
in the NAICS Manual under U.S. Industry No. 711211
(2007 version) or any establishment defined or
classified in the NAICS Manual as a U.S. Industry
Number which is not included wit hin the definition of
“basic industry” as such term is defined in this
section on April 17, 2008, the net benefit rate shall
not exceed the highest rate of income tax imposed upon
the Oklahoma taxable income of individuals pursuant to
subparagraph (g) or s ubparagraph (h), as applicabl e,
of paragraph 1 and paragraph 2 of subsection B of
Section 2355 of this title. Any change in such
highest rate of individual income tax imposed pursuant
to the provisions of Sect ion 2355 of this title shall
be applicable to the computation of incentive payments
to an establishment as described by this subparagraph
and shall be effective for purposes of incentive
payments based on payroll paid by such establishment
on or after January 1 of any applicable year for which
the net benefit rate is modified as required by this
subparagraph, and
g. the net benefit rate shall not exceed six percent (6%)
in connection with an establishment which employs
United States military veterans in at least ten
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percent (10%) of its gross payroll. The net benefit
rate for an establishment which employs United States
military veterans in at least ten percent (10%) of its
payroll shall not be lower than five percent (5%) , and
h. with respect to a hydrogen manufacturing establishment
defined or classified in the NAICS Manual unde r U.S.
Industry No. 325120, the net benefit rate s hall not
exceed six percent (6%) .
Incentive payments made pursuant to the provisions of this
subparagraph shall be based upon payroll associated with such new
direct jobs. For purposes of this subparagraph , the amount of
health insurance premiums or other benefits paid by the
establishment shall not be included for purpo ses of computation of
the average annualized wage;
8. “Gross payroll” means wages, as defined in Section 2385 .1 of
this title for new dire ct jobs;
9. a. “Establishment” means any business or governmental
entity, no matter what legal form , including, but not
limited to, a sole proprietorship; partnership;
limited liability company; corporation or combination
of corporations which have a centr al parent
corporation which makes corporate manage ment decisions
such as those involving consolidation, acquisition,
merger or expansion; federal agency; political
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subdivision of the State of Oklahoma; or trust
authority; provided, distinct, identifiable s ubunits
of such entities may be determined to be a n
establishment, for all purposes of the Oklahoma
Quality Jobs Program Act, by the Department subject to
the following conditions:
(1) within three (3) years of the first comple te
calendar quarter following the start date, the
entity must have a minimum pa yroll of Two Million
Five Hundred Thousand Dollars ($2,500,000.00) and
the subunit must also have or will have a minimum
payroll of Two Million Five Hundred Thousand
Dollars ($2,500,000.00),
(2) the subunit is engaged in an activity or service
or produces a product which is demonstratively
independent and separate from th e entity’s other
activities, services or products and could be
conducted or produced in the absence of any oth er
activity, service or produ ction of the entity,
(3) has an accounting system capable of tracking or
facilitating an audit of the subunit ’s payroll,
expenses, revenue and production. Limited
interunit overlap of administrative and
purchasing functions sh all not disqualify a
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subunit from consideration as an establishment by
the Department,
(4) the entity has not previously had a subunit
determined to be an establishment pursuant to
this section; provided, the restriction set forth
in this division shall no t apply to subunits
which qualify pursuant to the provisions of
subparagraph b of paragraph 7 of this subsection,
and
(5) it is determined by the Department that the
entity will have a probable net gain in total
employment within the incentive period.
b. The Department may promulgate rules to further limit
the circumstances under whi ch a subunit may be
considered an establishment. The Department sh all
promulgate rules to determine whether a subunit of an
entity achieves a net gain in total employment. The
Department shall establish c riteria for determining
the period of time within which such gain must be
demonstrated and a method for determining n et gain in
total employment;
10. “NAICS Manual” means any manual, book or other publication
containing the North American Industry Classif ication System, United
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States, 1997, promulgated b y the Office of Management and Budget of
the United States of Ameri ca, or the latest revised edition;
11. “Qualified federal contract ” means a contract between an
agency or instrumentality of the United St ates government, including
but not limited to the Department of Defense or any branch of the
United States Armed Forc es, but exclusive of any contract performed
for the Federal Emergency Management Agency as a direct result of a
natural disaster declared b y the Governor or the President of the
United States with respect to damage to property located in Oklahoma
or loss of life or personal injury to persons in Oklahoma, and a
lawfully recognized business entity, whether or not th e business
entity is organized under the laws of the State of Oklahoma this
state or whether or not the principal place of business of the
business entity is located within the State of Oklahoma this state,
for the performance of services , including but not limited to
testing, research, development, consu lting or other services in a
basic industry, if the contract involves the performance of such
services performed on or after July 1, 2009, by the employees of the
business entity within the State of Oklahom a this state or if the
contract involves the perfo rmance of such services performed on or
after July 1, 2009, by employees of a lawfully recognized business
entity that is a subco ntractor of the business entity with which the
prime contract has been formed . A qualified federal contract
described in this paragraph shall not qualify unless both the
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qualified federal contractor and any subcontractors originally
involved in the work o r added subsequently during the period of
performance verify to the qualified federal contractor verifier that
it offers, or will offer within one hundred eighty (180) days of
employment of its respective employees, a basic health benefits plan
as described in subparagraph b of paragraph 1 of this subsection to
individuals who perf orm qualified labor hours in this state;
12. “Qualified federal contractor verifier” means a nonprofit
entity organized under the laws of the State of Oklahoma this state,
having an affiliation with a comprehensive university which is part
of The Oklahoma State System of Higher Education, and having the
following characteristi cs:
a. established multiyear classified and unclas sified
indefinite-delivery/indefinite-quantity federal
contract vehicles in excess of Fifty Million Dollars
($50,000,000.00),
b. current capability to sponsor and maintain personnel
security clearances and authorized by the federal
government to handle and perform classified work up to
the Top Secret Sensitive Compartment ed Information
levels,
c. at least one on-site federally certified Sensitive
Compartmented Information Facility,
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d. on-site secure mass dat a storage complex with the
capability of isolating , segregating and protecting
corporate proprietary and classified i nformation,
e. trusted agent status by maintaining no ownership of ,
vested interest in, nor royalty production from any
intellectual property,
f. at least one hundred thousand (100,000) squ are feet of
configurable laboratory and support space,
g. the direct access to restricted air space through a
formalized memorandum o f agreement with the Department
of Defense,
h. at least five thousand (5, 000) acres available for
outdoor testing and train ing facilities, and
i. the ability to house state -of-the-art surety
facilities, including chemical, biological,
radiological, explosi ves, electronics, and unmanned
systems laboratories and ranges;
13. “SIC Manual” means the 1987 revision to the Standard
Industrial Classification Manual, promulgated by the Office of
Management and Budget of the United States of America;
14. “Start date” means the date on which an establishment may
begin accruing benefits fo r the creation of new direct jobs, which
date shall be determined by the Department;
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15. “Effective date” means the date of approval of a contract
under which incentive payments will be made pursuant to the Oklahoma
Quality Jobs Program Act, which shall b e the date the signed and
accepted incentive contr act is received by the Department; provided,
an approved project ma y have a start date which is different from
the effective date;
16. “Total qualified labor hours ” means the reimbursed payment
amount for hours of work performed by the State of Oklahoma
workforce of a qualified federal contractor or the State of Oklahoma
workforce of a subcontractor of a qualified federal contractor an d
which are required for the full performance of a qualified federal
contract;
17. “Qualified labor rate” means the fully reimbursed labor
rate paid through a qualified federal contract for qualified labor
hours to the qualified federal contractor or subc ontractor;
18. “Qualified federal contractor ” means a business entity:
a. maintaining a prime contract with the federal
government as defined in paragraph 11 of this
subsection,
b. providing notice of intent to apply to the Department
within one hundred e ighty (180) days of July 1, 2010,
or one hundred eighty (180) days of the date of the
award of a qualified federal contract or award of a
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new qualified subcontract under an existing qualifie d
federal contract, and
c. adding substantively to the contract by performing at
least eight percent (8%) of the tot al labor whether
qualified and nonqualified labor as determined by the
federal contractor verifier on a direct contract or
individual task order or delivery order on an
indefinite-delivery/indefinite-quantity or other
blanket contract vehicle.
Should a prime contractor provide n otice to the Department of
its intent not to apply for incentive for a qualified federal
contract or fails to qualify under the criteria above,
subcontractors in order of tier ranking as determined by the federal
contract verifier ma y assume the role of th e prime and apply to
become a qualified federal co ntractor provided the entity meets the
same criteria above with the exception that notice of intent to
apply with the Department must be provided within sixty (60) days of
the prime’s disqualification or on e hundred eighty (180) days of the
award of its subcontract, whichever is later; and
19. “Proxy establishment” means a public trust which:
a. is organized and existing under Section 176 of Title
60 of the Oklahoma Statutes for the b enefit of a
geographic area which includes a city or county or
some combination thereof, and
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b. benefits a geographic area where new direct jobs which
meet the requirements of the Oklahoma Quality Jobs
Program Act are created by an establishment, other
than the proxy establishme nt, which is a branch of the
Armed Forces of the U nited States.
A proxy establishment may be determined to be an esta blishment
for all purposes of the Oklahoma Quality Jobs Program Ac t by the
Department and incentive payments may be made to such proxy
establishment for new direct jobs otherwise qualified pursuant to
the Oklahoma Quality Jobs Program Act. The Department may
promulgate rules to further specify the circumstances under wh ich a
proxy establishment may be considered an est ablishment for the
purposes of making application for incentive payments pursuant to
the Oklahoma Quality Jobs Program Act. Provided , however, that with
respect to any data on qualifying direct new jobs fr om a branch of
the Armed Forces of the United Stat es, such rules shall onl y require
a proxy establishment to provide such da ta as would otherwise be
publicly releasable by the branch of the A rmed Forces of the United
States.
B. The Incentive Approval Comm ittee is hereby created and shall
consist of the Director of the Office of Management and Enterprise
Services, the Director of the Department and one member of the
Oklahoma Tax Commission app ointed by the Tax Commission, or a
designee from each agency appr oved by such member. It shall be the
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duty of the Committee to determine t he eligibility of all applicants
for the Oklahoma Quality Jobs Program Act, subject to the applicable
requirements.
C. For an establishment defined as a “basic industry” pursuant
to division (4) of subparagraph a of paragraph 1 of subsection A of
this section, the Incentive Approval Committee shall consi st of the
members provided by subsection B of this section and the Executive
Director of the Oklahoma Center for the Advancement of Science and
Technology, or a designee from the Cen ter appointed by the Exe cutive
Director.
SECTION 2. AMENDATORY 68 O.S. 2021, Section 3604, is
amended to read as follows:
Section 3604. A. Except as otherwise provided in subsect ion I
or subsection L of this section, an establis hment which meets the
qualifications specified in the Oklahoma Quality Job s Program Act
may receive quarterly incentive payments fo r a ten-year period from
the Oklahoma Tax Commission pursuant to the provis ions of the
Oklahoma Quality Jobs Program Act; pro vided, such an establish ment
defined or classified in the NAICS Manual und er U.S. Industry No.
711211 (2007 version) may receive qu arterly incentive payments for a
fifteen-year period. The amount of such p ayments shall be equal to
the net benefit rate mul tiplied by the actual gr oss payroll of new
direct jobs for a calendar quar ter as verified by the Oklahoma
Employment Security Commi ssion.
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B. In order to receive incentive payments, an establishment
shall apply to the Oklahoma Department of Commerce. The application
shall be on a form prescribed by the Department and shall cont ain
such information as may be required by the Department to determine
if the applicant is qualified. An establishment may apply fo r an
effective date for a project, which shall not be more than twenty-
four (24) months from the date the application is sub mitted to the
Department.
C. Except as otherwise provide d by subsection D or E of this
section, in order to qualify to receive such payments, the
establishment applying shall be req uired to:
1. Be engaged in a basic industry;
2. Have an annual gross pay roll for new direct jobs projected
by the Department to e qual or exceed Two Million Five Hundred
Thousand Dollars ($2,500,000.00) wi thin three (3) years of the first
complete calendar quarter following the start date; and
3. Have a number of full -time-equivalent employees subject to
the tax imposed by Section 2 355 of this title and working an annual
average of thirty (30) or more hour s per week in new direct jobs
located in this stat e equal to or in excess of eighty percent (80%)
of the total number of new direct jobs.
D. In order to qualify to receive incentiv e payments as
authorized by the Oklahoma Quality Jobs Program Act, an
establishment engaged in an activity described under:
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1. Industry Group Nos. 3 111 through 3119 of the NAICS Manual
shall be required to:
a. have an annual gross payroll for new direct j obs
projected by the Department to equal or exceed One
Million Five Hundred Thousand Dollars ($1,500,000.00)
within three (3) years of the first comp lete calendar
quarter following the start date and make, or which
will make within one (1) year, at least s eventy-five
percent (75%) of its total sales, as determined by the
Incentive Approval Committee pursuant to the
provisions of subsection B of Section 3603 of this
title, to out-of-state customers or buyers, to in-
state customers or buyers if the product or service is
resold by the purchaser to an out -of-state customer or
buyer for ultimate use, or to the federal government,
unless the annual gross payr oll equals or exceeds Two
Million Five Hundred Tho usand Dollars ($2,500,000.00)
in which case the requireme nts for purchase of output
provided by this subparagraph shall not apply, a nd
b. have a number of full -time-equivalent employees
working an average o f thirty (30) or more hours per
week in new direct jobs equal to or in excess of
eighty percent (80%) of th e total number of new direct
jobs; and
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2. Division (4) of subparagraph a o f paragraph 1 of subsection
A of Section 3603 of t his title, or a hydrogen manufacturing
establishment defined or classified in the NAICS Manual under U.S.
Industry No. 325120, shall be required to:
a. have an annual gross payroll for new direct jobs
projected by the Department to equal or exceed One
Million Five Hundred Thousan d Dollars ($1,500,000.00)
within three (3) years o f the first complete calendar
quarter following the start date, and
b. have a number of full -time-equivalent employees
working an average of thirty (30) or more hours per
week in new direct jobs equal to or in excess of
eighty percent (80%) of the total nu mber of new direct
jobs.
E. 1. An establishment which locates its principal business
activity within a site consisting of at least ten (10) acres which:
a. is a federal Superfund removal site,
b. is listed on the National Priorities List established
under Section 9605 of Title 42 of the United States
Code,
c. has been formally deferred to the state in lieu of
listing on the National Priorities List, or
d. has been determined by the Department of Environmen tal
Quality to be contaminated by any substance re gulated
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by a federal or state statute governing environmental
conditions for real property pursuant to an order of
the Department of Environmental Quality,
shall qualify for incentive payments irrespective of its actual
gross payroll or the number of full -time-equivalent employees
engaged in new direct jobs.
2. In order to qualify for the incentive payments pursuant to
this subsection, the establishment shall conduct the act ivity
resulting in at least fifty percent (50%) of its Oklahoma taxable
income or adjusted gross income, as determined under Section 2358 of
this title, whether from the sale of products or services or both
products and services, at the physical location w hich has been
determined not to comply with the federal or state statutes
described in this subsection with respect to environmental
conditions for real property. The establishment shall be subject to
all other requirements of the Oklahoma Quality Jobs Pr ogram Act
other than the exemptio ns provided by this subsection.
3. In order to qualify for the incentive payments pursuant to
this subsection, the entity shall obtain from the Department of
Environmental Quality a letter of concurrence that:
a. the site designated by the entity does mee t one or
more of the requirements listed in paragr aph 1 of this
subsection, and
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b. the site is being or has been remediated to a level
which is consistent with the intended use of th e
property.
In making its determination, the Department of Environmental
Quality may rely on existing data and information a vailable to it,
but may also require the applying entity to provide additional data
and information as necessary.
4. If authorized by the Department of Environmental Qualit y
pursuant to paragraph 3 of this subsection, the entity may utilize a
remediated portion of the property for its intended purpose prior to
remediation of the remainder of the site, and shall qualify for
incentive payments based on employment associated wi th the portion
of the site.
F. Except as otherwise provided by subsection G of thi s
section, for applications submitted on and after June 4, 2003, in
order to qualify to receive incentive payments as authorized by the
Oklahoma Quality Jobs Program Act, in addition to other
qualifications specified herein, an establishment shall be requi red
to pay new direct jobs an average annualized wage which equals or
exceeds:
1. One hundred ten percent (110%) of the average cou nty wage as
determined by the Department of Commerce based on the most rec ent
U.S. Department of Commerce data for the count y in which the new
direct jobs are located. For purposes of this paragraph, health
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care premiums paid by the applicant for individu als in new direct
jobs shall be included in the annualized wage; or
2. One hundred percent (100%) of the average county wag e as
that percentage is determined by the Department of Commerce based
upon the most recent U.S. Department of Commerce data for the county
in which the new jobs are located . For purposes of this paragraph ,
health care premiums paid by the applicant for i ndividuals in new
direct jobs shall not be included in the annualized wage.
Provided, no average wage requirement shall exceed Twent y-five
Thousand Dollars ($25,000.00), in any county. This maximum wage
threshold shall be indexed and modified from time to time based on
the latest Consumer Price Index year -to-date percent change release
as of the date of the annual average county wage data release from
the Bureau of Economic Analysis of the U.S. Department o f Commerce.
G. 1. As used in this subsection, “opportunity zone” means one
or more census tracts in which, according to the most recent Federal
Decennial Census, at least thirty pe rcent (30%) of the residents
have annual gross household incomes from all sources below the
poverty guidelines established b y the U.S. Department of Health and
Human Services. An establishment which is otherwise qualified to
receive incentive payments and which locates its principal business
activity in an opportunity zone shal l not be subject to the
requirements of subsection F of this section.
2. As used in this subsection:
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a. “negative economic event ” means:
(1) a man-made disaster or natural disaster as
defined in Section 683.3 of Title 63 o f the
Oklahoma Statutes, resultin g in the loss of a
significant number of jobs with in a particular
county of this state, or
(2) an economic circumstance in which a significant
number of jobs within a particular coun ty of this
state have been lost due to an establishment
changing its structure, consolidating with
another establishment, cl osing or moving all or
part of its operations out of this state, and
b. “significant number of jobs ” means Local Area
Unemployment Statistics (LAUS) data, as determined by
the Bureau of Labor Statistics, fo r a county which are
equal to or in excess of five percent (5%) of the
total amount of Local Area Unemployment Statistics
(LAUS) data for that county for the calendar year, or
most recent twelve-month period in which employ ment is
measured, preceding the e vent.
An establishment which is otherwise qualifie d to receive
incentive payments and which locates in a county in which a negative
economic event has occurred within the eighteen -month period
preceding the start date shall not be subject to the requiremen ts of
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subsection F of this section; provided, an e stablishment shall not
be eligible to receive incentive payments based upon a negative
economic event with respect to jobs that are transferred from one
county of this state to another.
H. The Department s hall determine if the applicant is qualified
to receive incentive payments.
I. If the applicant is determined to be qualified by the
Department and is not subject to the provisions of subparagraph d of
paragraph 7 of subse ction A of Section 3603 of this t itle, the
Department shall conduct a cost/benefit analysis to determine the
estimated net direct state benefits and the net benefit rate
applicable for a ten -year period beginning wi th the first complete
calendar quarter following the start date and to est imate the amount
of gross payroll for a ten -year period beginning with the first
complete calendar quarter following the start date or for a fifteen -
year period for an establishment defined or classified in the NAICS
Manual under U.S. Industry No. 711211 ( 2007 version). In conducting
such cost/benefit an alysis, the Department shall consider
quantitative factors, such as the anticipated level of new tax
revenues to the state along wit h the added cost to the state of
providing services, and such other criter ia as deemed appropriate by
the Department. In no event shall incentive payments, cumulatively,
exceed the estimated net direct state benefits, except for
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applicants subject to the provisions of subparagraph d of paragraph
7 of subsection A of Section 360 3 of this title.
J. Upon approval of such an appl ication, the Department shall
notify the Tax Commission and shall provide it with a copy of the
contract and the results of the cost /benefit analysis. The Tax
Commission may require the qualified establish ment to submit such
additional information as may be necessary to administer the
provisions of the Oklahoma Quality Jobs Program Act. The approved
establishment shall file quarterly claims with the Tax Commission
and shall continue to file such quarterly claims during the ten-year
incentive period to sho w its continued eligibility for incentive
payments, as provided in Section 3606 of this title, or until it is
no longer qualified to receive incentive payments. The
establishment may be audited by the Tax Commission to verify such
eligibility. Once the e stablishment is approved, an agreement shall
be deemed to exist between the establishment and the State of
Oklahoma, requiring the c ontinued incentive payment to be made as
long as the establishment retains its eligibility as defined in and
established pursuant to this section and Sections 3603 and 3606 of
this title and within the limitations contained in the Oklahoma
Quality Jobs Program Act, which existed at the time of su ch
approval. An establishment de scribed in this subsection shall be
required to repay all incentive payments received under the Oklahoma
Quality Jobs Program Act if the establishment is determined by the
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Oklahoma Tax Commission to no longer have business operations in the
state within three (3) years from the beginning of the calendar
quarter for which the first incentive payment claim is filed.
K. A municipality with a population of less than one hundred
thousand (100,000) persons in which an establishme nt eligible to
receive quarterly incentive payments pursuant to the provisions of
this section is located may file a claim with the Tax Commission for
up to twenty-five percent (25%) of the amount of such payment. The
amount of such claim shall not exceed amounts paid by the
municipality for direct costs of municipal infrastructure
improvements to provide water and sewer service to the
establishment. Such claim shall not be approved by the Tax
Commission unless the municipality and the establishment have
entered into a written agreement for such claims to be filed by the
municipality prior to submission of the application of the
establishment pursuant to the provisions of this section. If such
claim is approved, th e amount of the payment to the establishm ent
made pursuant to the provisio ns of Section 3606 of this title shall
be reduced by the amount of the approved claim by the municipality
and the Tax Commission shall issue a warrant to the municipality in
the amount of the approved claim in the same mann er as warrants are
issued to qualifying establishments.
L. For any contract execut ed by an establishment on or after
the effective date of this act August 2, 2018, five percent (5%) of
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the quarterly incentive payme nt amount shall be transferred by the
Oklahoma Tax Commission to the Oklahoma Quick Actio n Closing Fund.
SECTION 3. This act shall become effective November 1, 2022.
58-2-3105 QD 1/20/2022 10:31:32 PM