SECTION 150:65-1-2. Definitions

  For purposes of this chapter, the following words and terms shall have the following meaning unless the context clearly indicates otherwise.

"Application date" means the date on which the establishment's application is first received and stamped by a Quality Jobs representative at the Oklahoma Department of Commerce.

"Approval date" means the date on which the Executive Director of the Oklahoma Department of Commerce issues the offer to an establishment to receive incentive benefits pursuant to the Oklahoma Quality Jobs Program.

"Baseline employment" means an establishment's total number of jobs, which existed in this state prior to the application date of the establishment to the Oklahoma Department of Commerce. A job shall be deemed to exist in this state prior to approval of an application if the activities and functions for which the particular job exists have been ongoing at anytime within six (6) months prior to such approval. Upon approval of an application if it is more than six months later than the application date, the Department may determine an establishment's baseline employment to be its then current employment or its average employment over the last four quarters and may adjust the average wage requirement to meet the most current average wage requirement.

"Change in control event" means the transfer to one or more unrelated establishments or unrelated persons, of either:

(A)   beneficial ownership of more than fifty percent (50%) in value and more than fifty percent (50%) in voting power of the outstanding equity securities of the transferred establishment, or

(B)   more than fifty percent (50%) in value of the assets of an establishment. A transferor shall be treated as related to a transferee if more than fifty percent (50%) of the voting interests of the transferor and transferee are owned, directly or indirectly, by the other or are owned, directly or indirectly, by the same person or persons, unless such transferred establishment has an outstanding class of equity securities registered under Sections 12(b) or 15(d) of the Securities Exchange Act of 1934, as amended, in which event the transferor and transferee will be treated as unrelated; provided, an establishment applying for the Oklahoma Quality Jobs Program Act as a result of a change of control event is required to apply within one hundred eighty (180) days of the change in control event to qualify for consideration. An establishment entering the Oklahoma Quality Jobs Program Act as the result of a change of control event shall be required to maintain a level of new direct jobs as agreed to in its contract with the Department of Commerce and to pay new direct jobs an average annualized wage which equals or exceeds one hundred twenty-five percent (125%) of the average county wage as that percentage is determined by the Oklahoma State Data Center based upon the most recent U.S. Department of Commerce data for the county in which the new jobs are located. For purposes of this paragraph, healthcare premiums paid by the applicant for individuals in new direct jobs shall not be included in the annualized wage. Such establishment entering the Quality Jobs Program Act as the result of a change of control event shall be required to retain the contracted average annualized wage and maintain the contracted maintenance level of new direct jobs numbers as certified by the Oklahoma Tax Commission. If the required average annualized wage or the required new direct jobs numbers do not equal or exceed such contracted level during any quarter, the quarterly incentive payments shall not be made and shall not be resumed until such time as such requirements are met. An establishment described in this paragraph shall be required to repay all incentive payments received under the Quality Jobs Program Act if the establishment is determined by the Oklahoma Tax Commission to no longer have business operations in the state within three (3) years from the beginning of the calendar quarter for which the first incentive payment claim is filed. [68 O.S. § 3603 (A)(2)].

"Combination" means an establishment, provided it meets the requirements of 68 O.S. Section 3601 et seq. and the requirements set out in 150:65-1-13 of this chapter.

"Commission" means the Oklahoma Tax Commission established pursuant to 68 O.S. Section 102, and any successor agencies thereto.

"Cost-benefit analysis" means the analysis the Oklahoma Department of Commerce is required to perform to determine the estimated direct state benefits and estimated direct state costs.

"Date of determination" means the date assigned by the Department on the Incentive Offer on which a subunit and the entity of which the subunit is a part, must demonstrate a net increase in total employment in accordance with 150:65-1-12 (b) and (c) of this chapter.

"Employment of the remainder of the entity of which the subunit is a part" means the total number of jobs of an entity of which the subunit is a part which existed in this state prior to the application date of the subunit as to the Oklahoma Department of Commerce. Such jobs shall be deemed to exist in this state prior to approval of a subunit's application if the activities and functions for which the particular job exists have been ongoing at any time within six (6) months prior to approval. Upon approval of an application of a subunit as an establishment, if it is more than six (6) months later than the application date, the Department may determine the employment of the remainder of the entity of which the subunit is a part to be its then current employment or its average employment over the last four quarters, and may adjust the average wage requirement to meet the then current average wage.

"Entity of which the subunit is a part" means the business or governmental entity of which a subunit is a separate part as described in 68 O.S., Section 3603(8)(a) and 150:65-1-12 of this chapter.

"Estimated direct state benefits" means the tax revenues projected...to accrue to the state as a result of new direct jobs.[68:3603(A)(4)] Such revenues shall include:

(A)   State income tax receipts from employees holding new direct jobs. The Oklahoma Department of Commerce will determine the estimated direct state benefit from personal income tax receipts by reviewing:

(i)   historical data on similar or existing projects;

(ii)   information provided by the establishment;

(iii)   data from federal agencies such United States Bureau of the Census and the United States Department of Labor;

(iv)   the most recent historical data from the Oklahoma Tax Commission on average personal tax rates by income class; and,

(v)   private sector financial reports; and

(B)   State sales and use tax receipts, excise tax receipts, gasoline tax receipts and other anticipated tax receipts resulting from purchases by employees holding new direct jobs. The Department will determine the estimated direct state benefit from such taxes by reviewing:

(i)   information supplied by the establishment;

(ii)   data from federal agencies such as the United States Department of Labor;

(iii)   Oklahoma Tax Commission sales and use tax reports; and,

(iv)   private sector financial reports.

"Estimated direct state costs" means the costs projected to accrue to the state as a result of new direct jobs employing new state residents and/or new state service beneficiaries. Such costs shall include:

(A)   The costs of educating new state resident children. The Oklahoma Department of Commerce will determine the estimated direct state costs of such educations by using:

(i)   information supplied by the establishment;

(ii)   the most recent average student allocation per pupil formula provided by the Oklahoma Department of Education; and,

(iii)   United States Department of Labor statistics;

(B)   The costs of government services such as public health, public safety and transportation provided to new residents and/or state service beneficiaries. The Department will determine the estimated direct state costs for such government costs by examining the state's per capita cost of providing non-common education services and estimating the amount of the state's excess capacity; and

(C)   The costs of any industrial access road paid for with state funds and provided by the Oklahoma Department of Transportation; provided, the road is clearly from the facility to the thoroughfare and is clearly and primarily utilized by the establishment.

"Estimated net direct state benefits" means the estimated direct state benefits less the estimated direct state costs. [68:3603(A)(5)]

"Extraordinary adverse business circumstance" is an unforeseen event or series of events that adversely impact a business' ability to participate in the Oklahoma Quality Jobs Program. Such events shall not include market, economic, or business factors, but be limited to Acts of God, acts of terrorism, and civil unrest.

"Full-time equivalent employment" means employment which has a minimum six-month duration during any twelve-month time period, regardless whether the same employee holds the employment for said time.

"Line of business" means the NAICS code that is reflected by the end product or services of a given project resulting in new direct jobs.

"Negative economic event" means (1) a man-made disaster or natural disaster as defined in 63 O.S. § 683.3, resulting in the loss of a significant number of jobs within a particular county of this state, or (2) an economic circumstance in which a significant number of jobs within a particular county of this state have been lost due to an establishment changing its structure, consolidating with another establishment, closing or moving all or part of its operations out of this state.

"Net benefit rate" is set forth at 68 O.S. § 3603(A)(7) as determined by the Oklahoma Department of Commerce.

"New direct job":

(A)   means full-time-equivalent employment in this state in an establishment which has qualified to receive an incentive payment pursuant to the provisions of Section 3601 et seq. of this title [68 O.S. § 3601]which employment did not exist in this state prior to the date of approval by the Department of the application of the establishment pursuant to the provisions of Section 3604 of this title [68 O.S. § 3604]; provided, that if an application of an establishment is approved by the Department of Commerce after a change in control event and the Director of the Department of Commerce determines that the jobs located at such establishment are likely to leave the state, "new direct job" shall include employment that existed in this state prior to the date of application which is retained in this state by the new establishment following a change in control event, if such job otherwise qualifies as a new direct job, and

(B)   shall include full-time-equivalent employment in this state of employees who are employed by an employment agency or similar entity other than the establishment which has qualified to receive an incentive payment and who are leased or otherwise provided under contract to the qualified establishment, if such job did not exist in this state prior to the date of approval by the Department of the application of the establishment or the job otherwise qualifies as a new direct job following a change in control event. A job shall be deemed to exist in this state prior to approval of an application if the activities and functions for which the particular job exists have been ongoing at any time within six (6) months prior to such approval. With respect to establishments defined in division (10) of subparagraph a of paragraph 1 of this subsection, [NAICS 2111]new direct jobs shall be limited to those jobs directly comprising the corporate headquarters of or directly relating to administrative, financial, engineering, surveying, geological or geophysical services performed by the establishment. Under no circumstances shall employment relating to drilling or field services be considered new direct jobs. [68 O.S. § 3603(3)] But does not include jobs which constitute an establishment's baseline employment as determined by the Oklahoma Department of Commerce pursuant to the definitions of this section. An establishment must maintain a total number of jobs equal to its baseline employment number before any job of the establishment shall be considered a new direct job.

"Quality jobs representative" means an Oklahoma Department of Commerce professional or economic development professional, trained in the Oklahoma Quality Jobs Program, who is so designated by the Executive Director, and whose responsibilities in the program include direct contact with applicants and clients, analysis of data, initiation of project proposals, preparation of project profiles and preparation of incentive offers.

"Significant number of jobs" means full-time-equivalent employment in a county equal to or in excess of three percent (3%) of the total amount of full-time-equivalent employment in that county for the calendar year, or most recent twelve-month period in which employment is measured, preceding the event.

"Subunit" means an establishment, provided it meets all requirements of 68 O.S. Section 3601 et seq. and the requirements set out in 150:65-1-12 of this chapter.

[Source: Added at 10 Ok Reg 4723, eff 9-17-93 (emergency); Added at 11 Ok Reg 3671, eff 7-15-94; Amended at 12 Ok Reg 19, eff 9-29-94 (emergency); Added at 11 Ok Reg 767, eff 12-3-94 (emergency); Amended at 12 Ok Reg 1339, eff 5-25-95; Amended at 21 Ok Reg 543, eff 8-7-03 (emergency); Amended at 21 Ok Reg 2965, eff 7-25-04; Amended at 22 Ok Reg 1049, eff 5-26-05; Amended at 23 Ok Reg 1200, eff 5-25-06; Amended at 24 Ok Reg 1202, eff 5-25-07; Amended at 25 Ok Reg 1537, eff 6-12-08; Amended at 31 Ok Reg 883, eff 9-12-14]