Current through Register Vol. 63, No. 9, September 1, 2024
(1)
Processing the Final Certification: To qualify for a Final Certification, the
facility must be completed as described in the Application for Preliminary
Certification and the Preliminary Certificate. Any changes to the Preliminary
Certificate and/or Application for Preliminary Certification must complete the
amendment process outlined in these rules prior to the project completion date.
Failure to obtain approval through the amendment process may result in denial
of the Final Certification Application.
(a)
Applications shall be considered received for the purposes of ORS
469B.167 on the date marked
received by the department, unless the application is incomplete. If the
application for final certification is not complete, the date on which all of
the required information has been received is the date upon which the
department will consider a completed application received by the department.
(A) When a facility owner chooses to transfer
the tax credit under ORS
469B.148, the Department may
hold the application for final certification until pass-through partner(s)
information is received by the Department. Except for a facility using or
producing renewable energy resources with a certified cost that exceeds $10
million, any application in which the facility owner has indicated a choice to
transfer the tax credit under
469B.148 is not a "completed
application" until the Department receives both the completed final
certification application form from the facility owner, the pass-through fee
and the completed pass-through partner agreement form for the tax credit, or
portion of the tax credit, being transferred to that pass-through partner. The
receipt of the completed application by the Department begins the certification
period, as provided in
469B.167.
(B) As provided in ORS
469B.167(2)(c),
a facility using or producing renewable energy resources with a certified cost
that exceeds $10 million and that receives final certification under ORS
469B.161 after January 1, 2010,
a final certification application shall be considered complete without the
identification of a transferee for purposes of ORS
469B.148 or
469B.154.
(C) If more than one pass-through partner is
being transferred the credit, facility owners may have up to 18 months from the
date the first pass-through partner agreement form is received by the
Department to begin each certification period of the tax credit. For
pass-through partner(s) agreement forms received by the Department after the
18-month period, the certification period begins 18 months from the date the
first pass-through partner agreement form was received by the Department.
(D) For purposes of administering
the sunset of the program, the Department may issue a Final Certificate to a
facility owner who previously indicated a choice to transfer a tax credit to a
pass-through partner under ORS
469B.148, if the Department has
not received a completed application that includes the pass-through fee and the
signed pass-through partner agreement form at least sixty days prior to the
sunset date for the BETC program provided under ORS
315.357. The Final Certificate
will be issued to a facility owner if the only piece causing the application
for final certification to be incomplete is the pass-through partner(s)
agreement form and pass-through fee.
(b) Within 30 days after a final
certification application is received, the Director will determine whether the
application is complete. An application is incomplete if it does not include
information needed to demonstrate substantive compliance with the provisions of
ORS 469B.130 to
469B.169 and any applicable
rules or standards and preliminary certification conditions adopted by the
Director. If it is not complete, the applicant will be provided a written
explanation describing deficiencies. If it is complete, the Director will
process the application. Within 60 days after a completed final certification
application is received the director will either approve or deny the final
certification.
(c) If the Director
approves the application, the Director will issue final certification, which
will state the amount of certified costs and the amount of the tax credit
approved. The final certification may contain additional criteria and
conditions that must be met in order to retain tax credit benefits or the tax
credit certificate may be subject to revocation. If the facility fails to meet
any of the criteria, conditions and requirements established in the final
certification, the facility owner must notify the Department within 30 days.
(d) For efficient truck technology
facilities the department may, upon the request of the applicant, issue no more
than two final certificates for each preliminary certification, up to the
amount of the preliminary certification.
(2) Basis for Denying Tax Credit Benefits
(a) If the Director does not approve the
application, the Director will provide written notice of the action, including
a statement of the findings and reasons for the denial by regular and certified
mail.
(b) A final certification
application that is denied can be submitted again. A final certification
application can be amended or withdrawn by the applicant. If an application is
submitted again or amended, the time within which final certification review
occurs starts over.
(c) If the
Director does not issue a final certification within 60 days after an
application is filed, the application is denied pursuant to ORS
469B.161(4).
(d) The Director may deny a final
certificate if:
(A) The applicant does not
provide information about the facility in a reasonable time after the Director
requests it;
(B) The facility is
significantly different than the proposed facility for which the preliminary
certification was issued;
(C) The
applicant misrepresents or fails to construct or operate the facility;
(D) The applicant fails to
demonstrate that the facility described in the application is separate and
distinct from previous or current applications reviewed by the Department;
(E) The facility does not meet all
of the conditions and requirements contained in the preliminary certificate; or
(F) The applicant is unable to
demonstrate that the facility complies with all applicable provisions of ORS
Chapter 469B and the rules adopted thereunder.
(3) Basis for Revoking Tax Credit Benefits
(a) The Director may revoke certificates as
provided in ORS 469B.169 and ORS
315.354(5). For
the purposes of this section, "fraud or misrepresentation" means any
misrepresentation made by an applicant for a preliminary or final
certification, including but not limited to, misrepresentations as to the
applicant's financial viability, facility construction and operation, or any
other information provided as part of an application for a preliminary or final
certification.
(b) After the
Director issues a final certificate, an applicant must notify the director in
writing of any of the following conditions:
(A) The facility has been moved;
(B) Title to the facility has been conveyed;
(C) The facility is subject to or
part of a bankruptcy proceeding;
(D) The facility is not operating; or
(E) The term of a leased facility
has ended.
(c) Pursuant
to ORS 469B.169, upon receiving
information that a BETC certification was obtained by fraud or
misrepresentation, or that the facility has not been constructed or operated in
compliance with the requirements in the certificate, the Director shall revoke
the certificate for the facility.
(d) A revocation of the final certification
or portion of a certification due to fraud or misrepresentation results in the
loss of all prior and future tax credits in connection with that facility. If
all or a part of the tax credit certificate has been transferred to a
Pass-through partner under ORS
469B.148, the certificate is not
considered revoked as to the Pass-through partner, but the facility owner is
liable for the amount of tax credits claimed or that could be claimed.
(e) The revocation of a
certificate due to failure to construct or operate the facility in compliance
with the certificate results in the loss of any tax credits not yet claimed by
the facility owner. If all or a part of the tax credit certificate has been
transferred to a Pass-through partner under ORS
469B.148, the certificate is not
considered revoked as to the Pass-through partner.
(4) Sale or Disposition of the Facility after
Final Certification: As provided in ORS
315.354(5), the
department may issue a new tax credit final certificate after the sale,
termination of the lease or contract, exchange or other disposition of the
facility where the original facility owner did not transfer the tax credit to a
pass-through partner.
(a) The original
facility owner or representative must give notice to the department of the sale
or transfer of the facility and the department will revoke the certificate
covering the facility as of the date of such disposition. The original facility
owner or representative must provide.
(A) The
name of the new owner or new lessor who will be applying for any previously
unclaimed portion of the tax credit.
(B) A signed power of attorney authorizing
the Oregon Department of Revenue to disclose to the Oregon Department of Energy
information regarding the portion, if any, of the tax credit already claimed.
(b) The new owner, or
upon re-leasing of the facility, the new lessor, may apply for a new final
certificate under ORS
469B.161 by submitting:
(A) Satisfactory evidence of facility
ownership by the new owner or the new lessor, along with information
demonstrating that the facility is currently operating and will continue to
operate during the remainder of the tax credit period, unless continued
operation is waived by the department.
(B) A Tax Credit Recipient Statement, on a
form prescribed by the department, which includes the new owner or lessor's
name, tax identification number and address.
(c) To be eligible to receive a new final
certificate, the facility must meet the requirements of ORS
469B.130 to
469B.169, and any applicable
administrative rules, and the new owner or lessor may claim a tax credit under
this section only if all moneys owed to the State of Oregon have been paid, the
facility continues to operate, unless continued operation is waived by the
department, and all conditions in the new final certification are met.
(5) Request for
Reconsideration: No later than 60 days after the Director issues an order on a
preliminary certification, amendment to a preliminary certification, final
certification, or canceling or revoking a final certificate under these rules,
the applicant or certificate holder may request reconsideration in writing.
(6) Inspections: After an
application is filed under ORS
469B.145 or ORS
469B.161 or a tax credit is
claimed under these rules, the Department may inspect the facility. The
Department will schedule the inspection during normal working hours, following
reasonable notice to the facility operator.
(7) Energy Performance Reporting
Requirements: The department may require a facility owner to report on a
project's energy performance after receiving final certification. This
requirement will apply to projects receiving final certification on or after
January 1, 2014.
(a) The department will
select projects to report energy performance when the operational data would
further the energy goals of the department and the legislative policy described
in ORS 469B.133. Facilities required to
report energy performance may include those that use or produce renewable
energy resources, sustainable building practices facilities and new
technologies.
(b) If required to
report, an energy performance reporting agreement will be included as a
condition of the final certification.
(c) The energy performance reporting
agreement will require facility owners to report on an annual basis for up to
five years after receiving final certification.
(d) The energy performance reporting
agreement will specify the data the facility owner must provide annually. The
agreement may also specify energy performance goals.
(e) The department will not require
facilities receiving one year tax credits to enter an energy performance
reporting agreement.
Stat. Auth.: ORS
469.040 &
469B.161
Stats. Implemented: ORS
469B.130 -
469B.171 &
315.354-315.357