§ 353. Eligibility criteria. 1. To be a participant in the excelsior
jobs program, a business entity shall operate in New York state
predominantly:

(a) as a financial services data center or a financial services back
office operation;

(b) in manufacturing, including in animal and plant fiber textile
manufacturing;

(c) in software development and new media;

(d) in scientific research and development;

(e) in agriculture;

(f) in the creation or expansion of back office operations in the
state;

(g) in a distribution center;

(h) in an industry with significant potential for private-sector
economic growth and development in this state as established by the
commissioner in regulations promulgated pursuant to this article. In
promulgating such regulations the commissioner shall include job and
investment criteria;

(i) as an entertainment company;

(j) in music production;

(k) as a life sciences company;

(l) as a company operating in one of the industries listed in
paragraphs (b) through (e) of this subdivision and engaging in a green
project as defined in section three hundred fifty-two of this article;

(m) as a participant operating in one of the industries listed in
paragraphs (a) through (k) of this subdivision and operating or
sponsoring child care services to its employees as defined in section
three hundred fifty-two of this article; or

(n) as a Green CHIPS project.

2. When determining whether an applicant is operating predominately in
one of the industries listed in subdivision one of this section, the
commissioner will examine the nature of the business activity at the
location for the proposed project and will make eligibility
determinations based on such activity.

3. For the purposes of this article, in order to participate in the
excelsior jobs program, a business entity operating predominantly in
manufacturing must create at least five net new jobs; a business entity
operating predominately in agriculture must create at least five net new
jobs; a business entity operating predominantly as a financial service
data center or financial services customer back office operation must
create at least twenty-five net new jobs; a business entity operating
predominantly in scientific research and development must create at
least five net new jobs; a business entity operating predominantly in
software development must create at least five net new jobs; a business
entity creating or expanding back office operations must create at least
twenty-five net new jobs; a business entity operating predominately in
music production must create at least five net new jobs; a business
entity operating predominantly as an entertainment company must create
or obtain at least one hundred net new jobs; or a business entity
operating predominantly as a distribution center in the state must
create at least fifty net new jobs, notwithstanding subdivision five of
this section; or a business entity operating predominately as a life
sciences company must create at least five net new jobs; or a business
entity must be a regionally significant project or Green CHIPS project
as defined in this article; or

4. A business entity operating predominantly in one of the industries
referenced in paragraphs (a) through (h) or in paragraph (k) of
subdivision one of this section but which does not meet the job
requirements of subdivision three of this section must have at least
twenty-five full-time job equivalents unless such business is a business
entity operating predominantly in manufacturing then it must have at
least five full-time job equivalents and must demonstrate that its
benefit-cost ratio is at least ten to one.

5. A not-for-profit business entity, a business entity whose primary
function is the provision of services including personal services,
business services, or the provision of utilities, and a business entity
engaged predominantly in the retail or entertainment industry, other
than a business operating as an entertainment company as defined in this
article and other than a business entity engaged in music production,
and a company engaged in the generation or distribution of electricity,
the distribution of natural gas, or the production of steam associated
with the generation of electricity are not eligible to receive the tax
credit described in this article.

6. A business entity must be in compliance with all worker protection
and environmental laws and regulations. In addition, a business entity
may not owe past due state taxes or local property taxes.

7. Notwithstanding subdivision sixteen of section three hundred
fifty-two of this article, the department is hereby authorized to allow
phase two of a Green CHIPS project to enter into a new and separate
schedule of benefits which may overlap with the phase one of a Green
CHIPS project schedule of benefits, for a new ten-year benefit term.
Notwithstanding paragraph three of subdivision a of section three
hundred fifty-four of this article, such phase two of a Green CHIPS
project shall be admitted into the program. Provided however, for such
phase two of a Green CHIPS project, the new benefit term shall
exclusively be provided for net new investments, new research and
development expenditures, and net new job creation above the commitments
outlined in the schedule of benefits for a business' phase one of a
Green CHIPS project with the department. Assuming the requirements of
this article have been met, both a Green CHIPS project and any phase two
of such project shall be eligible for benefits under section three
hundred fifty-five of this article.