(a) To be a participant in the Empire State Jobs Retention Program, an applicant must be operating predominantly in a strategic industry as defined in subdivision (b) of this section and meet the job retention requirements for strategic industries as outlined in subdivision (c) of this section. When determining whether an applicant is operating predominantly in a strategic industry 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.

(b) Strategic industries shall consist of the following:

(c) In order to participate in the Empire State Jobs Retention Program, a business entity operating in one of the strategic industries listed in subdivision (b) of this section:

(d) A business entity must be in substantial 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; provided, however, in the case of a tax certiorari proceeding, a business entity would not be considered in arrears until a final decision is made with respect to such proceeding.

(e) 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, and a business entity 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 participate in the program.