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ENGROSSED SENATE
BILL NO. 609 By: Coleman and Hall of the
Senate
and
Hilbert of the House
An Act relating to ad valorem tax; amending 68 O.S.
2011, Section 2902, as last amended by Section 1,
Chapter 258, O.S.L. 2019 (68 O.S. Supp. 2020, Section
2902), which relates to exemption for manufacturin g
facilities; modifying definitions; adjusting certain
investment requirement to inflation index; requiring
the Oklahoma Tax Commission to p ublish certain
adjustments; adjusting wage threshold; req uiring
wages exceed certain Quality Jobs Program Act
requirements; authorizing the Oklahoma Tax Commission
to request verification; removing exceptions for
failure to meet certain payroll requirement s;
modifying certain classification; and providing an
effective date.
BE IT ENACTED BY THE PEOPLE OF TH E STATE OF OKLAHOMA:
SECTION 1. AMENDATORY 68 O.S. 2011, Section 2902, as
last amended by Section 1, Chapter 258, O .S.L. 2019 (68 O.S. Supp.
2020, Section 2902), is amended to read as follows:
Section 2902. A. Except as otherwise provided by subsection H
of Section 3658 of this title pursuant to which the exemption
authorized by this section may not be claimed, a qua lifying
manufacturing concern, as defined by Secti on 6B of Article X of the
Oklahoma Constitution, and as further defined herein, shall be
exempt from the levy of any ad valorem taxes upon new, expanded or
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acquired manufacturing facilities, including facil ities engaged in
research and development, for a p eriod of five (5) years. The
provisions of Section 6B of Article X of the Oklahoma Constitution
requiring an existing facility to have been unoccupied for a period
of twelve (12) months prior to acquisitio n shall be construed as a
qualification for a faci lity to initially receive an exemption, and
shall not be deemed to be a qualification for that facility to
continue to receive an exemption in each of the four (4) years
following the initial year for which the exemption was granted.
Such facilities are h ereby classified for the purposes of taxation
as provided in Section 22 of Article X of the Oklahoma Constitution.
B. For purposes of this section, the following definitions
shall apply:
1. “Manufacturing facilities” means facilities engaged in the
mechanical or chemical transformation of materials or substances
into new products and except as provided by paragraph 8 6 of
subsection C of this section shall include:
a. establishments which have received a m anufacturer
exemption permit pursuant to the provi sions of Section
1359.2 of this title,
b. facilities, including repair and replacement parts,
primarily engaged in aircraft repair, building and
rebuilding whether or not on a factory basis,
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c. establishments primarily engaged in computer services
and data processing as defined under Industrial Group
Numbers 5112 and 5415, and U.S. Industry Number 334611
and 519130 of the NAICS Manual, latest revision, and
which derive at least fifty percent (50%) of their
annual gross revenues from the sale of a product or
service to an out-of-state buyer or consumer, and as
defined under Industrial Group Number 5142 of the
NAICS Manual, latest revision, which derive at least
eighty percent (80%) of their annual gross revenu es
from the sale of a product or service to an out -of-
state buyer or consumer. Eligibility as a
manufacturing facility pursuant to this subparagraph
shall be established, subject to review by the
Oklahoma Tax Commission, by annually filing an
affidavit with the Tax Commission stating that the
facility so qualifies and such other information as
required by the Tax Commission. For purposes of
determining whether annual gross revenues are derived
from sales to out-of-state buyers, all sales to the
federal government shall be considered to be an out-
of-state buyer,
d. for which facilities that the investment cost of the
construction, acquisition or expansion of the
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manufacturing facility is Two Hundred Fifty Thousand
Dollars ($250,000.00) Five Hundred Thousand Dollars
($500,000.00) or more with respect to assets placed
into service during calendar year 2022. For
subsequent calendar years, the investment required
shall be increased annually by a percentage equal to
the previous year’s increase in the Consumer P rice
Index-All Urban Consumers ( “CPI-U”) and such adjusted
amount shall be the required investment cost in order
to qualify for the exemption authorized by this
section. The Oklahoma Department of Commerce shall
determine the amount of the increase, if an y, on
January 1 of each year. The Oklahoma Tax Co mmission
shall publish on its website at least annually the
adjusted dollar amount in order to qualify for the
exemption authorized by this section and shall include
the adjusted dollar amount in any of its relevant
forms or publications with respect to th e exemption.
Provided, “investment cost” shall not include the co st
of direct replacement, refurbishment, repair or
maintenance of existing machinery or equipment, except
that “investment cost” shall include capital
expenditures for direct replacement, re furbishment,
repair or maintenance of existing machinery or
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equipment that qualifies for depreciation and/or
amortization pursuant to the Internal Revenue Code of
1986, as amended, and such expenditures sha ll be
eligible as a part of an “expansion” that otherwise
qualifies under this section, and
e. establishments primar ily engaged in distribution as
defined under Industry Numbers 49311, 49312, 49313 and
49319 and Industry Sector Number 42 of the NAICS
Manual, latest revision, and which meet the following
qualifications:
(1) construction with an initial capital investment
of at least Five Million Dollars ($5,000,000.00),
(2) employment of at least one hundred (100) full -
time-equivalent employees, as certified by the
Oklahoma Employment Security Commission,
(3) payment of wages or salaries to its employees at
a wage which equals or exceeds one hundred
seventy-five percent (175%) of the federally
mandated minimum wage , as certified by the
Oklahoma Employment Sec urity Commission the
average wage requirements in the Oklahoma Quality
Jobs Program Act for the year in which the real
property was placed into service , and
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(4) commencement of construction on or after November
1, 2007, with construction to be complet ed within
three (3) years from the date of the commence ment
of construction,
f. facilities engaged in the manufacturing, compounding,
processing or fabrication of materials into articles
of tangible personal property according to the special
order of a customer (custom order manufacturing) by
manufacturers classified as operating in North
American Industry Classification System (NAICS)
Sectors 32 and 33, but does not include such custom
order manufacturing by manufacturers clas sified in
other NAICS code sectors , and
g. with respect to any entity making an appli cation for
the exemption authorized by this section on or after
January 1, 2022, the establishment making application
for exempt treatment of real or personal property
acquired or improved beginning January 1, 2022, and
for any calendar year thereafter, the entity shall be
required to pay new direct jobs, as defined by Section
3603 of this title for purposes of the Oklahoma
Quality Jobs Program Act, an average annualized wa ge
which equals or exceeds the average wage requirement
in the Oklahoma Quality Jobs Program Act for the year
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in which the real or personal property was placed into
service. The Oklahoma Tax Commission may request
verification from the Oklahoma Departme nt of Commerce
that an establishment seeking an exemption for real or
personal property pays an average annualized wage that
equals or exceeds the average wage requirement in
effect for the year in which the real or personal
property was placed into servic e.
Eligibility as a manufacturing fac ility pursuant to this
subparagraph shall be estab lished, subject to review by the Tax
Commission, by annually filing an affidavit with the Tax C ommission
stating that the facility so qualifies and containing such other
information as required by the Tax C ommission.
Provided, eating and drinking places, a s well as other retail
establishments, shall not qualify as manufacturing facilities for
purposes of this section, nor shall centrally assessed properties.
Eligibility as a manufacturing facility pursuant t o this
subparagraph shall be established, subject to review by the Tax
Commission, by annually filing an application with the Tax
Commission stating that the facility so qualifies and containing
such other information as required by the Tax Commission;
2. “Facility” and “facilities”, except as otherwise provided by
this paragraph, means and includes the land, buildings, structures ,
and improvements used directly and exclusively in the manufacturing
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process. Effective January 1, 2022, and for each calendar year
thereafter, for establishments which have re ceived a manufacturer
exemption permit pursuant to the provisions of Section 13 59.2 of
this title, or facilities engaged in manufacturing activities
defined or classified in the NAICS Manual under Industry Nos. 311111
through 339999, inclusive, but for no other establishments, facility
and facilities means and includes the land, buildings, structures,
improvements, machinery, fixtures, equipment and other personal
property used directly and exclusively in th e manufacturing process;
and
3. “Research and development” means activities directly related
to and conducted for the purpose of discovering, enhancing,
increasing or improving future or existing products or pro cesses or
productivity.
C. The following pr ovisions shall apply:
1. A manufacturing concern shall be entitled to the exemption
herein provided for each new manufacturing facility constructed,
each existing manufacturing facility acquired and the expansio n of
existing manufacturing facilities on th e same site, as such terms
are defined by Section 6B of Article X of the Oklahoma Constitution
and by this section;
2. Except as otherwise provided in paragraph 5 of this
subsection, no No manufacturing concern sha ll receive more than one
five-year exemption for any one manufacturing facility unless the
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expansion which qualifies the manufacturing facility for an
additional five-year exemption meets the requirements of paragraph 4
of this subsection and the employmen t level established for any
previous exemption is maintained;
3. Any exemption as to the e xpansion of an existing
manufacturing facility shall be limited to the increase in ad
valorem taxes directly attributable to the expansion;
4. Except as provided in paragraphs 5 and 6 of this subsection,
all All initial applications for any exemption for a new, acquired
or expanded manufacturing facility shall be granted only if:
a. there is a net increase in annualized base payroll
over the initial payroll of at least T wo Hundred Fifty
Thousand Dollars ($2 50,000.00) if the facility is
located in a county with a population of fewer than
seventy-five thousand (75,000), according to the most
recent Federal Decennial Census, while maintaining or
increasing base payroll in su bsequent years, or at
least One Million Dollars ($1,000,000.00) if the
facility is located in a county with a population of
seventy-five thousand (75,000) or more, according to
the most recent Federal Decennial Census, while
maintaining or increasing base payroll in subsequent
years; provided the payroll requirement of this
subparagraph shall be waived for claims for
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exemptions, including claims previously denied or on
appeal on March 3, 2010, for all initial applications
for exemption filed on or after Jan uary 1, 2004, and
on or before March 31, 2009, and all subsequent annual
exemption applications filed related to the initial
application for exemption, for an applicant, if the
facility has been located in Oklahoma for at least
fifteen (15) years engaged i n marine engine
manufacturing as defi ned under U.S. Industry Number
333618 of the NAICS Manual, latest revision, and has
maintained an average employment of five hundred (500)
or more full-time-equivalent employees over a ten -year
period. Any applicant th at qualifies for the payroll
requirement waiver as outlined in the previous
sentence and subsequently closes its Oklahoma
manufacturing plant prior to January 1, 2012, may be
disqualified for exemption and subject to recapture.
For an applicant engaged in paperboard manufacturing
as defined under U.S. Industry Number 322130 of the
NAICS Manual, latest revision, union master payouts
paid by the buyer of the facility to specified
individuals employed by the facility at the time of
purchase, as specified unde r the purchase agreement,
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shall be excluded from payroll for purposes of this
section.
In order to provide certainty with respect to
investments in manufacturing facilities pertaining to
all initial applications for exemption filed on or
after January 1, 2016, the following definitions shall
apply:
(1) “base payroll” shall mean total payroll adjusted
for any nonrecurring bonuses, exercise of stock
option or stock rights and other nonrecurring,
extraordinary items included in total payroll,
and
(2) “initial payroll” shall mean base payroll for the
year immediately preceding the initial
construction, acquisition or expansion.
The Tax Commission shall verify payroll information
through the Oklahoma Employment Security Commission by
using reports from the Oklaho ma Employment Security
Commission for the calendar year immediately preceding
the year for which initial application is made for
base-line payroll, which must be maintained or
increased for each subsequent year; provided, a
manufacturing facility shall hav e the option of
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excluding from its pa yroll, for purposes of this
section:
i. payments to sole proprietors, members
of a partnership, members of a limited
liability company who own at least ten
percent (10%) of the capital of the
limited liability company o r
stockholder-employees of a corporat ion
who own at least ten percent (10%) of
the stock in the corporation, and
ii. any nonrecurring bonuses, exercise of
stock option or stock rights or other
nonrecurring, extraordinary items
included in total payroll num bers as
reported by the Oklahoma Empl oyment
Security Commission. A manufacturing
facility electing either option shall
indicate such election upon its
application for an exemption under this
section. Any manufacturing facility
electing either option shal l submit
such information as the Tax Commission
may require in order to verify payroll
information. Payroll information
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submitted pursuant to the provisions of
this paragraph shall be submitted to
the Tax Commission and shall be subject
to the provisions of Section 205 of
this title, and
b. the facility offers, or will offer within one hund red
eighty (180) days of the date of employment, a basic
health benefits plan to the full -time-equivalent
employees of the facility, which is determined by the
Department of Commerce to consist of the eleme nts
specified in subparagraph b of paragraph 1 of
subsection A of Section 3603 of this title or elements
substantially equivalent thereto.
For purposes of this section, calculation of the amount of
increased base payrol l shall be measured from the start of initial
construction or expansion to the completi on of such construction or
expansion or for three (3) years from the start of initial
construction or expansion, whichever occurs first. The amount of
increased base payroll shall include payroll for full -time-
equivalent employees in this state who are em ployed by an entity
other than the facility which has previously or is currently
qualified to receive an exemption pursuant to the provisions of this
section and who are leased or otherwise provided to the facility, if
such employment did not exist in this state prior to the start of
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initial construction or expansion of the facility. The
manufacturing concern shall submit an affidavit to the Tax
Commission, signed by an officer, stating that the constructio n,
acquisition or expansion of the facility will r esult in a net
increase in the annualized base payroll as required by this
paragraph and that full -time-equivalent employees of the facility
are or will be offered a bas ic health benefits plan as required b y
this paragraph. If, after the completion of suc h construction or
expansion or after three (3) years from the start of initial
construction or expansion, whichever occurs first, the construction,
acquisition or expans ion has not resulted in a net increas e in the
amount of annualized base payroll, if req uired, or any other
qualification specified in this paragraph has not been met, the
manufacturing concern shall pay an amount equal to the amount of any
exemption granted, including penalties and interest t hereon, to the
Tax Commission for deposit to the A d Valorem Reimbursement Fund;
5. If a facility fails to meet the base payroll requirement of
subparagraph a of paragraph 4 of this subsection, the payroll
requirement shall be waived for claims for exempti ons, including
claims previously denied or on appe al on June 1, 2009, for all
initial applications for exemption filed on or after January 1,
2004, and on or before March 31, 2009, and all subsequent annual
exemption applications filed related to such init ial application for
exemption, for an applicant, i f the facility:
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a. has been located for at least five (5) years as of
March 31, 2009, in a county in Oklahoma with a
population of six hundred thousand (600,000) or more ,
b. is owned by an applicant that ha s been engaged in
manufacturing as defined under U .S. Industry Numbers
323110, 323111, 323121 and 323122 of the NAICS Manual,
latest revision,
c. is owned by an applicant that maintains a workforce of
at least three hundred (300) employees on June 1,
2009,
d. is owned by an applicant that has filed multip le
applications for exemption pursuant to this section,
and
e. is owned by an applicant that operates at least one
facility in this state of at least seven hundred
thirty thousand (730,000) square feet on J une 1, 2009.
In the event that any applicant obtai ning a waiver of the payroll
requirement pursuant to this paragraph ceases to operate all of its
facilities in this state on or before a date that is four (4) years
after any initial application for an exem ption is filed by such
applicant, all sums of prop erty taxes exempted under this paragraph
through a waiver of the payroll requirement that relate to such
application shall become due and payable as if such sums were
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assessed in the year in which the appli cant ceases to operate all of
its facilities in th e state;
6. Any new, acquired or expanded automotive final assembly
manufacturing facility which does not meet the requirements of
paragraph 4 of this subsection shall be granted an exemption only if
all other requirements of this section are met and only if the
investment cost of the construction, acquisition or expansion of the
manufacturing facility is Three Hundred Million Dollars
($300,000,000.00) or more and the ma nufacturing facility retains an
average employment of one thousand seven hundred fifty (1,750) or
more full-time-equivalent employees in the year in which the
exemption is initially granted and in each of the four (4)
subsequent years only if an average em ployment of one thousand seven
hundred fifty (1,750) or more full -time-equivalent employees is
maintained in the subsequent year. Any property installed to
replace property damaged by the tornado or natural disaster that
occurred May 8, 2003, may continue to receive the exemption provided
in this paragraph for the full five -year period based on the value
of the previously qualifying assets as of January 1, 2003. The
exemption shall continue in effect as long as all other
qualifications in this paragraph a re met. If the average employment
of one thousand seven hundred fifty (1,750) or more full-time-
equivalent employees is reduced as a result of temporary layoffs
because of a tornado or natural disaster on May 8, 2003, then the
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average employment requireme nt shall be waived for year 2003 of t he
exemption period. Calculation of the number of employees shall be
made in the same manner as required under Section 2357.4 of this
title for an investment tax credit. As used in this paragraph,
“expand” and “expansion” shall mean and include any incre ase to the
size or scope of a facility as well as any renovation, restoration,
replacement or remodeling of a facility which permits the
manufacturing of a new or redesigned product;
7. Any new, acquired, or expanded c omputer data processing,
data preparation, or information processing services provider
classified in Industrial Group Number 7374 of the SIC Manual, latest
revision, and U.S. Industry Number 514210 518210 of the North
American Industrial Classification System (NA ICS) Manual, latest
2017 revision, may apply for exemptions under this section f or each
year in which new, acquired, or expanded capital improvements to the
facility are made if:
a. there is a net increase in annualized payroll of the
applicant at any facility or facilities of the
applicant in this state of at least Two Hundred Fifty
Thousand Dollars ($250,000.00), which is attributable
to the capital improvements, or a net increase of
Seven Million Dollars ($7,000,000.00) or more in
capital improvements, while maintaining or increasing
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payroll at the facility or facilities in this sta te
which are included in the application, and
b. the facility offers, or will offer within one hundred
eighty (180) days of the date of employment of new
employees attributable to t he capital improvements, a
basic health benefits plan to the full -time-equivalent
employees of the facility, which is determined by the
Department of Commerce to consist of the elements
specified in subparagraph b of paragraph 1 of
subsection A of Section 3603 of this title or ele ments
substantially equivalent thereto;
8. 6. Effective January 1, 2017, an entity engaged in electric
power generation by means of wind, as described by the North
American Industry Classification System, No. 221119, shall not be
defined as a qualifying m anufacturing concern for purposes of the
exemption otherwise authorized pursuant to Section 6B of Article X
of the Oklahoma Constitution or qualify as a “manufacturing
facility” as defined in this section. No initial application for
exemption shall be fil ed by or accepted from an entity engaged in
electric power generation by means of wind on or after January 1,
2018; and
9. 7. An entity or applicant engaged in an industry as defined
under U.S. Industry Number 324110 of the NAICS Manual , latest
revision, which has applied for or been granted an exemption for a
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time period which began on or after calendar year 2012 and before
calendar year 2016 but which did not meet the payroll requirements
of subparagraph a of paragraph 4 of this subsec tion because of
nonrecurring bonuses, exercise of stock option or sto ck rights or
other nonrecurring, extraordinary items included in total payroll in
the previous year, shall be allowed an exemption, beginning with
calendar year 2016, for the number of ye ars, including the calendar
year for which the exemption was denied, remaining in the entity’s
five-year exemption period, provided such entity attains or
increases payroll at or above the initial or base payroll
established for the exemption.
D. 1. Except as provided in paragraph 2 of this subsection,
the five-year period of exemption from ad valorem taxes for any
qualifying manufacturing facility property shall begin on January 1
following the initial qualifying use of the property in the
manufacturing process.
2. The five-year period of exemption from ad valorem taxes for
any qualifying manufacturing facility, as specified in subparagraphs
a and b of this paragraph, which is located within a tax incentive
district created pursuant to the Local Developm ent Act by a county
having a population of at least five hundred thou sand (500,000),
according to the most recent Federal Decennial Census, shall begin
on January 1 following the expiration or termination of the ad
valorem exemption, abatement, or other in centive provided through
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the tax incentive district. Facilities qual ifying pursuant to this
subsection shall include:
a. a manufacturing facility as defined in subparagraph c
of paragraph 1 of subsection B of this section, and
b. an establishment primaril y engaged in distribution as
defined under Industry Number 49311 of t he North
American Industry Classification System for which the
initial capital investment was at least One Hundred
Eighty Million Dollars ($180,000,000.00); provided,
that the qualifying job creation and depreciable
property investment occurred prior to ca lendar year
2017 but not earlier than calendar year 2013.
E. Any person, firm or corporation claiming the exemption
herein provided for shall file each year for which exemption is
claimed, an application therefor with the county assessor of the
county in which the new, expanded or acquired facility is located.
The application shall be on a form or forms prescribed by the Tax
Commission, and shall be filed on or before March 15, except as
provided in Section 2902.1 of this title, of each year in which the
facility desires to take the exemption or within thirty (30) days
from and after receipt by such person, firm or corporation of notice
of valuation increase, whichever is later. In a cas e where
completion of the facility or facilities will occur after Jan uary 1
of a given year, a facility may apply to claim the ad valorem tax
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exemption for that year. If such facility is found to be qualified
for exemption, the ad valorem tax exemption pr ovided for herein
shall be granted for that entire year and shall app ly to the ad
valorem valuation as of January 1 of that given year. For
applicants which qualify under the provisions of subparagraph b of
paragraph 1 of subsection B of this section, the application shall
include a copy of the affidavit and any other info rmation required
to be filed with the Tax Commission.
F. The application shall be examined by the county assessor and
approved or rejected in the same manner as provided by law for
approval or rejection of claims for homestead exemptions. The
taxpayer shall have the same right of review by and appeal from the
county board of equalization, in the same manner and subject to the
same requirements as provided by law for review and appeals
concerning homestead exemption claims. Approved applications shall
be filed by the county assessor with the Tax Commission no later
than June 15, except as provided in Section 2902.1 of this title, of
the year in which the facility desires to take the exemp tion.
Incomplete applications and applications filed after June 15 w ill be
declared null and void by the Tax Commission. In the event that a
taxpayer qualified to receive an exemption pursuant to the
provisions of this section shall make payment of ad va lorem taxes in
excess of the amount due, the county treasurer shall h ave the
authority to credit the taxpayer’s real or personal property tax
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overpayment against current taxes due. The county treasurer may
establish a schedule of up to five (5) years of c redit to resolve
the overpayment.
G. Nothing herein shall in any man ner affect, alter or impair
any law relating to the assessment of property, and all property,
real or personal, which may be entitled to exemption hereunder shall
be valued and assessed a s is other like property and as provided by
law. The valuation and a ssessment of property for which an
exemption is granted hereunder shall be performed by the Tax
Commission.
H. The Tax Commission shall have the authority and dut y to
prescribe forms and to promulgate rules as may be necessary to carry
out and administer the ter ms and provisions of this section.
SECTION 2. This act shall become effective November 1, 2021.
Passed the Senate the 2nd day of March, 2021.
Presiding Officer of the Senate
Passed the House of Representatives the ____ day of ______ ____,
2021.
Presiding Officer of the House
of Representatives