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

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

(b) in 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; or

(g) in a distribution center.

2. When determining whether an applicant is operating predominantly 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 empire state jobs retention program, a business entity operating in one of the strategic industries listed in subdivision one of this section (a) must be located in a county in which an emergency has been declared by the governor on or after January first, two thousand eleven, (b) must demonstrate substantial physical damage and economic harm resulting from the event leading to the emergency declaration by the governor, and (c) must have had at least one hundred full-time equivalent jobs in the county in which an emergency has been declared by the governor on the day immediately preceding the day on which the event leading to the emergency declaration by the governor occurred, and must retain or exceed that number of jobs in New York state.

4. 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, a business entity engaged predominantly in the retail or entertainment industry, or 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.

5. 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. In addition, a business entity must not owe local property taxes for any year prior to the year in which it applies to participate in the empire state jobs retention program.