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STATE OF OKLAHOMA
1st Session of the 58th Legislature (2021)
SENATE BILL 527 By: Montgomery
AS INTRODUCED
An Act relating to public finance; creating the
Oklahoma Prosperity Act; subjectin g implementation of
act to certain appropriation; d efining terms;
requiring State Treasurer to develop and operate the
Oklahoma Prosperity Act Program in accordance with
stated requirements; establishing certain persons as
fiduciary for accounts establishe d under program;
exempting certain persons f rom fiduciary duty;
providing standard of fiduciary duty; establishing
mandates for designing and operating program ;
authorizing adoption of certain rules; creating the
Oklahoma Prosperity Act Administrative Fund ;
specifying terms of the fund; creating the Oklaho ma
Prosperity Act Trust; authorizing Treasurer to
appoint certain persons as trustee or custodian;
requiring assets of certain IRAs be allocated to
trust and managed for cer tain purpose; requiring
establishment of at least one investment fund within
the trust; establishing terms of investment funds;
authorizing Treasurer to hire investment advisers for
certain purpose; specifying terms of trust
maintenance and investments; re quiring trust assets
be held separate from state assets; prohibiting
liability of state for trust; exempting trust monies
from state income ta x; authorizing trust to be
established by adoption of fund of other state in
certain circumstances; requiring prog ram be
established in certain ti me frame; authorizing
Treasurer to extend time fram e; authorizing Treasurer
to establish pilot program or roll outs for
implementing act; amending 75 O.S. 2011, Section
250.4, as last amended by Section 214, Chapter 408,
O.S.L. 2019 (75 O.S. Supp. 2020, Sec tion 250.4),
which relates to the Administrative Pr ocedures Act;
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providing exemption for certain activities; providing
for codification; and providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA :
SECTION 1. NEW LAW A new sec tion of law to be codified
in the Oklahoma Statutes as Sect ion 3600 of Title 62, unless there
is created a duplication in numbering, reads as follows:
This act shall be known and may be cited as the “Oklahoma
Prosperity Act”.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3601 of Title 62, unless there
is created a duplication in numbering, reads as follows:
A. Implementation of this ac t shall be subject to the receipt
of appropriations su fficient to establish the Oklahoma Prosperity
Act Program, as defined in this section.
B. As used in this act:
1. “Administrative fund” shall mean the Oklahoma Prosperity Act
administrative fund estab lished under this act;
2. “Contribution rate” means the percentage of the wages of a
covered employee that is wi thheld from his or her wages and paid to
the individual retirement account or individual retirement annuity
established for the covered employe e under the Program;
3. “Covered employee” means any individual who is e ighteen (18)
years of age or older, who is employed by a covered employer and who
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has wages that are allocable to the state. For purposes of the
investment, withdrawal, transfer, rol lover or other distrib ution of
an individual retirement account or indivi dual retirement annuity ,
the term covered employee also includes the beneficiary of a
deceased covered employee;
4. “Covered employer” means an employer that either:
a. satisfies the following requirement s:
(1) has at no time during the previous calendar year
employed fewer than ten (10) employees in this
state,
(2) has been in business for at least tw o (2) years,
and
(3) has not been a participating or contributing
employer in a retirement plan under Sect ion
401(a), 401(k), 403(a), 403(b), 408(k), or 408( p)
of Title 26 of Internal Revenue Code at any time
during the preceding two (2) calendar years, or
b. elects to be a covered employer if and as permitted in
accordance with rules and procedures establishe d by
the Oklahoma Prosperity Act Program;
5. “Employer” means a person or entity engaged in a business,
profession, trade or other enterprise in the state, whether for
profit or not-for-profit, that employs one or more individuals in
the state; provided, that a federal or state entity, agency or
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instrumentality or any political subdivision thereof, shall not be
an employer;
6. “Enrollee” means any covered employee enrolle d in the
Oklahoma Prosperity Act Program;
7. “Internal Revenue Code” means the federal Internal Revenue
Code of 1986, as amended;
8. “Investment adviser” means either:
a. an investment adviser registered as such under the
U.S. Investment Advisers Act of 1940, or
b. a bank or other institution exempt from registratio n
under the U.S. Inves tment Advisers Act of 1940;
9. “Investment fund” means each investment portfolio
established within the trust for investment purposes;
10. “IRA” means either an individu al retirement account or
individual retirement annuity establis hed under Section 408 or 408A
of Title 26 of the Internal Revenue Code;
11. “Program” means the Oklahoma Prosperity Act Program
established under this act;
12. “State” means the State of Okla homa;
13. “State Treasurer” means the Oklahoma State Treasurer ;
14. “Trust” means the IRA retirement trust or annuity contract
established under Section 7 of this act;
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15. “Trustee” means the trustee of the trust including an
insurance company issuing an annuity contract, selected under
Section 4 of this act; and
16. “Wages” means compensation within the meaning of Section
219(f)(1) of Title 26 the Internal Revenue Code that is received by
a covered employee from a covered employer .
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes a s Section 3602 of Title 62, unless there
is created a duplication in numbering, reads as follows:
The State Treasurer shall have the following powers and duties
in implementing the provisions of this act:
1. To design, establish and operate the Oklahoma P rosperity Act
Program in accordance with the requir ements established in this act;
2. To collect fees to defray the costs of administering the
Program;
3. To enter into contracts necessary or desirable for the
establishment and adm inistration of the Prog ram;
4. To hire, retain and terminate third -party service providers
for the Program including, but not limited to, consultants,
investment managers or advisors, trustee s, custodians, insurance
companies, record keepers, administrat ors, actuaries, counsel ,
auditors and other professionals; provided, that e ach service
provider shall be authorized to do business in this state. For
purposes of selecting a third-party service provider, the Office of
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the State Treasurer shall be exempt f rom the Oklahoma Centra l
Purchasing Act; provided, that a competitive proce ss shall be
developed and utilized to select service providers;
5. To determine the type or type s of IRAs to be offer ed;
6. To employ a program administrator and any other individ uals
necessary to administer the Program and the administrative fund;
7. To develop and implement an outreach plan and disseminate
information regarding the Program and re tirement and financial
education in general, to employees, employers and other const ituents
in the state;
8. Determine the number of days by which an eligible employer
must make the Program available to a covered employee upon first
becoming an eligible e mployer or covered employee;
9. To adopt rules and procedures for the establishment and
operation of the Program and to take such other actions as necessary
to operate the Program in accordance with the provisions of this
act. Any guidelines or procedure s affecting the Program may be
implemented after reasonable notice to the public and a public
comment period, in a manner similar to the requirements of the
Administrative Procedures Act. However, the Ad ministrative
Procedures Act shall not apply for purp oses of this section; and
10. If applicable, to establish and maintain the Program by
contracting with ano ther state, partnering with one or more states
to create a joint auto-IRA Program, allowing states to participat e
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in the Program or forming a consort ium with one or more other states
in which certain aspects of the Program of each st ate are combined
for administrative convenience and efficiency.
SECTION 4. NEW LAW A new section of law to be c odified
in the Oklahoma Statutes as S ection 3603 of Title 62, unless there
is created a duplication in numbering, reads a s follows:
A. The trustee and each investment adviser shall be a fiduciary
with respect to the trust and IRAs established and maintain ed under
the Oklahoma Prosperity Act Program.
B. Each covered employer shall be required to provide covered
employees with the information as required by the Program. No
employer acting pursuant to this act shall be considered a fiduciary
with respect to the trust o r an IRA or have fiduciary
responsibilities under the act.
C. Each fiduciary shall discharge its duties with respect to
the Program solely in the best interests of covered employees a nd
with the care, skill, prudence and diligence under the prevailing
circumstances that a prudent person acti ng in a similar capacity and
familiar with those matters would use in th e conduct of an
enterprise of like character and aims.
SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3604 of Title 62, unless there
is created a duplication in numbering, reads as follows :
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A. The Oklahoma Pros perity Act Program shall be designed,
established and operated in accordance with the following
provisions:
1. Each covered employer shall be required to offer to each
covered employee an opportunity to contribute to an IRA establis hed
under the Program for the benefit of the covered employee through
withholding from his or her wages. No employer shall be permitted
to contribute to the Program;
2. Unless the covered employee elects not to participate in the
Program, he or she shall be automatically enrol led in the Program
and contributions shall be withhe ld from the wages of the covered
employee;
3. The minimum contribution rate of each covered employee shall
be three percent (3%); the minimum contribution rate shall be the
default contribution rate;
4. The IRAs shall qualify for favorable federal income tax
treatment under Sections 408 and 408A of Title 26, as appropriate,
of the Internal Revenue Code;
5. Each covered employer shall deposit withheld contributions
of the covered employee under the Progr am with the trustee in such
manner as is determined by the State Treasurer, provided that the
employer shall deliver the amo unts withheld to the trustee within
ten (10) business days after the date the amounts otherwise would
have been paid to the covered employee;
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6. Additional rules and procedures may be adopted in
conjunction with established IRS regulations for withdrawals ,
distributions, transfers and rollov ers of IRAs and for the
designation of IRA beneficiaries;
7. Information regarding the Program shall be made available to
the public on a website maintained for the Program;
8. Audited financial reports shall be submi tted to the Governor
and Legislature within two (2) years after the Program is
established and annually thereafter at the end of each fiscal year;
9. Each covered employer shall be pr ovided information
regarding the Program and disclosures including:
a. a description of the benefits and risk s associated
with investments offered in the Program,
b. instructions about how to obtain addit ional
information about the Program,
c. a description of the federal and state income tax
consequences of an IRA, which may consist of or
include the disclosure statement required to be
distributed under the Internal Revenue Code and the
Treasury Regulations thereunder,
d. a statement that covered employees seeking financial
advice should contact their own financial advisors,
that covered employers shall not provi de financial
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advice and that covered employers are not liable for
decisions covered employees m ake under the act,
e. a statement that the Program i s not an employer-
sponsored retirement plan,
f. a statement that neither the Program nor the IRA of
the covered employee established under the Program is
guaranteed by the state,
g. a statement that neit her a covered employer nor the
state will monitor or has an obligation to monitor the
eligibility of the covered employee under the Internal
Revenue Code to make contributions to an IRA or to
monitor whether the contributions of the covered
employee to the IRA established for the covered
employee under the Program exceeds the maximum
permissible IRA contribution; it shall be the
responsibility of the covered emplo yee, and
h. a statement that neither the state nor the covered
employer will have any liability with respect to any
failure of the covered employee to be eligible to make
IRA contributions or any contribution in excess of the
maximum IRA contribution;
10. Any information, forms or instructions to be furnished to
covered employees that provide the c overed employee with the
procedures for:
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a. making contributions to the IRA of the covered
employee established under the Program including a
description of the minimum contribution rate and the
right to elect to make no contributi on or to change
the contribution rate under the Program,
b. making an investment election with respect to the IRA
of the covered employee established under the Program
including a description of the default investment
fund, and
c. making transfers, rollov ers, withdrawals and oth er
distributions from the IRA of the covered employee;
11. Each covered employer shall deliver or facilitate the
delivery of the information about the Program t o each covered
employee at the time and in the manner as established by Program
guidelines; and
12. The Program shall be designed and operated in a manner that
will cause it not to be an employee benefit plan within the meaning
of Section 3(3) of the Empl oyee Retirement Income Security Act of
1974.
SECTION 6. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3605 of Title 62, unless there
is created a duplication in numbering, reads as follows:
There is hereby created in the Office of the State Treasurer a
fund to be designated as the “Oklahoma Prosperity Act Administrative
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Fund”. The fund shall be a continuing fund, not subject to fiscal
year limitations, and shall consist of monies appropriated for th e
administration of the Oklahoma Prosperity Act Program, all
administrative fees collected and any other monies designated to the
fund by law. All monies accruing to the credit of the fund are
hereby appropriated and may be budgeted and expended by the St ate
Treasurer for expenses related to the administration and support of
the Program. Expenditu res from the fund shall be made upon warrants
issued by the State Treasurer against claims filed as prescribed by
law with the Director of the Office of Manageme nt of Enterprise
Services for approval and payment.
SECTION 7. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 3606 of Title 62, unless there
is created a duplication in numbering, reads as follows:
A. There is hereby created as an instrumentality of the state a
trust to be known as the “Oklahoma Prosperity Act Trust ”.
B. The State Treasurer may appoint qualified financial
institutions to act as trustee or custodian of the IRA accounts.
C. The assets of IRAs established for covered employees shall
be allocated to the t rust and combined for in vestment purposes.
Trust assets shall be managed and administered for the purposes of
providing services to covered employees and defraying reasonable
administrative expenses of the Oklahoma Prosperity Act Program.
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D. There shall be established within th e trust one or more
investment funds. The first One T housand Dollars ($1,000.00) in
contributions made by, or on behalf of, an enrollee may be deposited
into a default capital preservation investment fund and the enrollee
may be provided an account revoca tion period during which, if the
enrollee chooses to e nd participation in the Program, the enrollee
may withdraw the deposited amounts from the default investmen t
without penalty.
E. Covered employees may allocate assets of their I RAs among
investment funds and a default investment fund may be designated for
the IRAs of covered employees who do not select an investment fund.
F. The State Treasurer may retain inv estment advisers to select
and manage the investments of investment fun ds on a discretionary
basis, subject to ongoing review and oversight.
G. The assets of the trust shall be maintained, invested and
expended solely for the purposes of the trust and no property rights
therein shall exist in favor of the state or any covere d employer.
Trust assets shall not be transferred or used by the state for an y
purposes other than the purposes of the trust or funding the
expenses of operating the Program.
H. The assets of the trust shall be held separate and apart
from the assets of the state.
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I. There shall be no liability for the state, the Program, the
State Treasurer or any employer for investment losses incurred by
any covered employee as a result of partici pating in the Program.
J. The trust and each investment fund shall not be subject to
income tax of this state.
K. If the Program is established by u sing the auto-IRA Program
of another state, a joint Program or a consortium with one or more
other states, then the trust may be established by adopting the
trust established un der the Program of the o ther state or states or
as a master trust or similar ar rangement with the other state or
states; provided, that the trust, master trust or similar
arrangement satisfies the requirements of this section.
SECTION 8. NEW LAW A new sect ion of law to be codified
in the Oklahoma Statutes as S ection 3607 of Title 62, unless there
is created a duplication in numbering, reads as follows:
The Oklahoma Prosperity Act Program shall be established so that
covered employees may begin making contri butions within twenty-four
(24) months of the effective date of this act; provided, that the
State Treasurer may extend the time period within which the Program
is implemented by twelve (12) months. The State Treasurer may
establish a pilot program for ce rtain covered employers, may provide
for a staggered rollout of the Program so that covered employers are
initially required to offer the Program to covered empl oyees in
stages based on employee headcount or other criteria, or both.
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SECTION 9. AMENDATORY 75 O.S. 2011, Section 250.4, a s
last amended by Section 214, Chapter 408, O.S.L. 2019 (75 O.S. Supp.
2020, Section 250.4), is amended to read as follows:
Section 250.4. A. 1. Except as is otherwise specifically
provided in this subsection, each agency is required to comply with
Article I of the Administrative Procedures Act.
2. The Corporation Commission shall be required to comply with
the provisions of Articl e I of the Administrative Procedures Act
except for subsections A, B, C and E of Section 303 of this title
and Section 306 of this title. To the extent of any conflict or
inconsistency with Article I of the Administr ative Procedures Act,
pursuant to Section 35 of Article IX of the Oklahoma Constitution,
it is expressly declared that Article I of the Administrative
Procedures Act is an amendment to and alteration of Sections 18
through 34 of Article IX of the Oklahoma Constitution.
3. The Oklahoma Military Department shall be exempt from the
provisions of Article I of the A dministrative Procedures Act to the
extent it exercises its responsibility for military affairs.
Military publications, as defined in Section 801 o f Title 44 of the
Oklahoma Statutes, sh all be exempt from the provisions of Article I
and Article II of the Administrative Procedures Act, except as
provided in Section 251 of this title.
4. The Oklahoma Ordnance Works Authority, the Northeast
Oklahoma Public Facilities Authority, the Oklahoma Office of
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Homeland Security and the Board of Trustees of the Oklahom a College
Savings Plan shall be exempt from Article I o f the Administrative
Procedures Act.
5. The Transportation Commission and the Department of
Transportation shall be exempt from Art icle I of the Administrative
Procedures Act to the extent they exerci se their authority in
adopting standard specifications, special provisions, plans, design
standards, testing procedures, federally imposed requireme nts and
generally recognized standards, project planning and programming,
and the operation and control of t he State Highway System.
6. The Oklahoma State Regents for Higher Education shall be
exempt from Article I of the Administrative Procedures Act wit h
respect to:
a. prescribing standards of higher education,
b. prescribing functions and courses of study in each
institution to conform to the standards,
c. granting of degrees and other forms of academic
recognition for completion of the prescribed cours es,
d. allocation of state-appropriated funds, and
e. fees within the limits prescribed by the Legislature.
7. Institutional governing boards within The Oklahoma State
System of Higher Education shall be exempt from Article I of the
Administrative Procedu res Act.
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8. a. The Commissioner of Publ ic Safety shall be exempt from
Sections 303.1, 304, 307.1, 308 and 30 8.1 of this
title insofar as it is necessary to promulg ate rules
pursuant to the Oklahoma Motor Carrier Safety and
Hazardous Materials Transportatio n Act, to maintain a
current incorporation of federal motor carrier safety
and hazardous material regulation s, or pursuant to
Chapter 6 of Title 47 of the Oklahoma Statutes, to
maintain a current incorporation of federal commercial
driver license regulatio ns, for which the Commissioner
has no discretion when the state is mandated to
promulgate rules identical to federal rules and
regulations.
b. Such rules may be ad opted by the Commissioner and
shall be deemed promulgated twenty (20) days after
notice of adoption is published in “The Oklahoma
Register”. Such publication need not set forth the
full text of the rule but may incorporate the federal
rules and regulation s by reference.
c. Such copies of promulgated rules shall be filed with
the Secretary as requ ired by Section 251 of this
title.
d. For any rules for which the Commissioner has
discretion to allow varia nces, tolerances or
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modifications from the federal rule s and regulations,
the Commissioner shall fully comply with Article I of
the Administrative P rocedures Act.
9. The Council on Judic ial Complaints shall be exempt from
Section 306 of Article I of the A dministrative Procedures Act, with
respect to review of the validity or applicability of a rule by an
action for declaratory judgment, or any other relief based upon the
validity or applicability of a rule, in the district court or by an
appellate court. A party aggrieved by the validity or applicability
of a rule made by the Council on Judicial Complaints may petition
the Court on the Judiciary to r eview the rules and issue opinions
based upon them.
10. The Department of Corrections, State Board of Corre ctions,
county sheriffs and managers of city jails shal l be exempt from
Article I of the Administrative Procedures Act with respect to:
a. prescribing internal management procedures for t he
management of the state prisons, county jails and city
jails and for the management, supervision and control
of all incarcerated prisoners, and
b. prescribing internal management procedures for the
management of the probation and parole unit of the
Department of Corrections and for the supervision of
probationers and par olees.
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11. The State Board of Education shall be exemp t from Article I
of the Administrative Procedures Act with respect to prescribing
subject matter standards as provided for in Sectio n 11-103.6a of
Title 70 of the Oklahoma Statutes.
B. As specified, the following agencies or classes of agency
activities are not required to comply with the provisions of Article
II of the Administrative Procedures Act:
1. The Oklahoma Tax Commission;
2. The Commission for Human Services;
3. The Oklahoma Ordnance Works Authority;
4. The Corporation Commission;
5. The Pardon and Parole Board;
6. The Midwestern Oklahoma Development Authority;
7. The Grand River Dam Authority;
8. The Northeast Oklaho ma Public Facilities Authority;
9. The Council on Judicial Complaint s;
10. The Board of Trustees of the Oklahoma College S avings Plan;
11. The supervisory or administrative agency of any penal,
mental, medical or e leemosynary institution, only with resp ect to
the institutional supervision, custody, control, care or treat ment
of inmates, prisoners or patients therein; provide d, that the
provisions of Article II shall apply to and govern all
administrative actions of the Oklahoma Alcohol Prevention, Traini ng,
Treatment and Rehabilitation Authority;
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12. The Board of Regents or employees of any university,
college, or other institution of higher learning;
13. The Oklahoma Horse Racing Commission, its employees or
agents only with respect to hearing and noti ce requirements on the
following classes of violations which are an i mminent peril to the
public health, safety and welfare:
a. any rule regarding the running of a race,
b. any violation of medication laws and rules,
c. any suspension or revocation of an o ccupation license
by any racing jurisdiction recognized by the
Commission,
d. any assault or other destructive acts within
Commission-licensed premises,
e. any violation of prohibited devices, laws and rules,
or
f. any filing of false information;
14. The Commissioner of Public Safety only with respect to
driver license hearings and hearings conducted pursuant to the
provisions of Section 2-115 of Title 47 of the Oklahoma Statutes;
15. The Administrator of the Depart ment of Securities only with
respect to hearings conducted pursuant to provisions of the Oklahoma
Take-over Disclosure Act of 1985;
16. Hearings conducted by a pu blic agency pursuant to Section
962 of Title 47 of the Oklahoma Statutes;
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17. The Oklahoma Military Department;
18. The University Hospitals Authority, including all hospitals
or other institutions o perated by the University Hospitals
Authority;
19. The Oklahoma Health Care Authority Board and the
Administrator of the Oklahoma Health Care Autho rity; and
20. The Oklahoma Office of H omeland Security; and
21. The State Treasurer with respect to the ad option of rules
and procedures for the implementation and operation of the Oklahoma
Prosperity Act pursuant to Section 1 of this act .
SECTION 10. This act shall become effective November 1, 2021.
58-1-563 CB 1/20/2021 11:31:09 AM