SENATE FLOOR VERSION - SB527 SFLR Page 1 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 SENATE FLOOR VERSION March 3, 2021 AS AMENDED SENATE BILL NO. 527 By: Montgomery and Thompson of the Senate and McEntire and Pae of the House [ public finance - Oklahoma Prosperity Act - codification - 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 numberi ng, 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. SENATE FLOOR VERSION - SB527 SFLR Page 2 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 ret irement annuity established for the covered employe e under the Program; 3. “Covered employee” means any individual who is eighteen (18) years of age or older, who is employed by a covered employer and who has wages that are allocable to the state. For pu rposes of the investment, withdrawal, transfer, rol lover or other distrib ution of an individual retirement account or individual 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 twenty-five (25) 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, an automatic enrollment payroll deduction IRA or a qualified SENATE FLOOR VERSION - SB527 SFLR Page 3 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 retirement plan in compliance with federal law for its employees including plans qualified under Section 401(a), 401(k), 40 3(a), 403(b), 408(k), 408(p), 457(b) or 457(f) of Title 26 of Internal Revenue Code or any deferred compensation plan offered by any employer 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 instrumentality or any political subdivision thereof, shall not be an employer; 6. “Enrollee” means any covered employee enrolle d in the Oklahoma Prosperity Act P rogram; 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 SENATE FLOOR VERSION - SB527 SFLR Page 4 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 b. a bank or other instit ution exempt from registration 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 established 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; 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 secti on 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: SENATE FLOOR VERSION - SB527 SFLR Page 5 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 1. To design, establish and operate the Oklahoma P rosperity Act Program in accordance with the requirements established in this act; 2. To collect fees to defray the costs of administering the Program; 3. To enter into contracts necessary or desirable f or the establishment and administration 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, administrators, actuaries, counsel , auditors and other professionals; provided, that each service provider shall be authorized to do business in this state. For purposes of selecting a third-party service provider, the Office of the State Treasurer shall be exempt from the Oklahoma Centra l Purchasing Act; provided, that a competitive process 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 administ rator and any other individuals 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 constituents in the state; SENATE FLOOR VERSION - SB527 SFLR Page 6 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 proce dures 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 reasonab le 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 in the Program or forming a consort ium with one or more other states in which certain aspect s of the Program of each state 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 as 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. SENATE FLOOR VERSION - SB527 SFLR Page 7 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 B. Each covered employer shall be required to p rovide 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 shal l discharge its duties with respect to the Program solely in the best interests of covered employees and 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 the 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: 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 co ntribute to an IRA established 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 t he Program, he or she shall be automatically enrol led in the Program SENATE FLOOR VERSION - SB527 SFLR Page 8 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 and contributions shall be withheld from the wages of the covered employee; 3. The minimum contribution rate of each covered employee shall be three percent (3%); the minimum contributio n 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 con tributions 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 thirty (30) business days after the date the a mounts otherwise would have been paid to the covered employee; 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; SENATE FLOOR VERSION - SB527 SFLR Page 9 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 9. Each covered employer shall be provided information regarding the Program and disclosures including: a. a description of the benefits and risk s associated with investments offered in t he 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 advice and that covered emplo yers are not liable for decisions covered employees m ake under the act, e. a statement that the Program is 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 SENATE FLOOR VERSION - SB527 SFLR Page 10 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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: 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 contribution 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 SENATE FLOOR VERSION - SB527 SFLR Page 11 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 c. making transfers, rollovers, 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 t he 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 T reasurer a fund to be designated as the “Oklahoma Prosperity Act Administrative 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 ad ministration 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 SENATE FLOOR VERSION - SB527 SFLR Page 12 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 law with the Director of the Office of Manageme nt of Enterprise Services for approval and p ayment. 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 instrumenta lity 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 trust 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 Ac t Program. D. There shall be established within th e trust one or more investment funds. The first One Thousand 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 end participation in the Program, the enrollee may withdraw the deposited amounts from the default investmen t without penalty. SENATE FLOOR VERSION - SB527 SFLR Page 13 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 E. Covered employees may allocate assets of their IRAs 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 funds 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 covered employer. Trust assets shall not be transferred or used by the state for any 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 an d apart from the assets of the state. 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 using 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 adoptin g the trust established under the Program of the o ther state or states or as a master trust or similar arrangement with the other state or SENATE FLOOR VERSION - SB527 SFLR Page 14 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 Section 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 St ate 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 o r other criteria, or both. SECTION 9. AMENDATORY 75 O.S. 2011, Section 250.4, as 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 SENATE FLOOR VERSION - SB527 SFLR Page 15 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 Homeland Security and the Board of Trustees of the Oklahom a College Savings Plan shall be exempt from Article I of 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. SENATE FLOOR VERSION - SB527 SFLR Page 16 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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. 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 promulgate 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 SENATE FLOOR VERSION - SB527 SFLR Page 17 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 promulgate rules identical to federal rules and regulations. b. Such rules may be adopted 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 regulations 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 modifications from the federal rules 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 SENATE FLOOR VERSION - SB527 SFLR Page 18 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 shall 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. 11. The State Board of Education shall be exempt 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; SENATE FLOOR VERSION - SB527 SFLR Page 19 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 Savings 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; provided, 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; 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, SENATE FLOOR VERSION - SB527 SFLR Page 20 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 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 public agency pursuant to Section 962 of Title 47 of the Oklahoma Statutes; 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 . SENATE FLOOR VERSION - SB527 SFLR Page 21 (Bold face denotes Committee Amendments) 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 SECTION 10. This act shall become effective November 1, 2021. COMMITTEE REPORT BY: COMMITTEE ON APPROPRIATIONS March 3, 2021 - DO PASS AS AMENDED