Current through Register Vol. 63, No. 9, September 1, 2024
The following definitions apply unless the context requires
otherwise:
(1) "Applicant": An
applicant means:
(e) A person who applies for
a preliminary certification of a Manufacturing BETC under this section
includes:
(A) Individuals, corporations,
associations, firms, partnerships, limited liability companies and joint stock
companies.
(B) Any cooperative,
non-profit corporation, or federal, state or local governments including school
districts, water districts, or any other special districts. These entities are
qualified applicants when they have a qualified pass-through partner, or commit
to select such a partner prior to final certification. These entities must
follow all procurement processes, including competitive bid, where
applicable.
(f) A person
who applies for a final certification of a Manufacturing BETC under this
section must be the facility owner listed on the preliminary
certification.
(g) The tax credit
certificate will be issued to a facility owner or a qualified pass-through
partner, but the tax credit may only be claimed pursuant to ORS
315.354.
(h) An applicant for preliminary
certification or final certification or a tax credit recipient may not include
any business or non-profit corporation or cooperative that restricts
membership, sales or service on the basis of race, color, creed, religion,
national origin, sexual preference or gender.
(2) "Certified cost": The cost certified in
the final certification issued pursuant to ORS
469.215.
(3) "Completed Application": Contains all of
the information required in these rules and payments under OAR 330-091-0150.
All questions on the application must be answered. A completed application for
final certification must also include a completed, signed pass-through
partner(s) agreement form, where the facility owner chooses to transfer the tax
credit. No application for a final certification in which the facility owner
has indicated a choice to transfer the tax credit under ORS
469.206 is considered complete
until the Department receives both the completed final certification
application form from the facility owner and the completed pass-through partner
agreement form for the tax credit, or portion of the tax credit, being
transferred to the pass-through partner.
(4) "Completed Facility": A facility for
which all costs have been paid or committed by a binding contract or agreement
and that is installed and operating or, in the case of a Research, Development
and Demonstration facility, which the Director determines the applicant has
made all reasonable efforts to operate, including making changes required by
the Department.
(5) "Component
Parts of Electric Vehicles": means component parts for use solely in Electric
Vehicles and not in conventional vehicles. Component parts shall be
distinguished by their absence from conventional vehicles and shall not include
components that can be used interchangeably in both electric and conventional
vehicles. For the purpose of this definition, "conventional vehicle" is a
production vehicle that is powered with an internal combustion engine,
excluding hybrids.
(6) "Cost": The
actual capital costs and expenses needed to acquire, erect, design, build,
modify, or install a facility that is eligible to receive a Manufacturing BETC.
Costs financed with federal funds, subject to specific restrictions, terms and
conditions may be eligible expenses, including but not limited to costs
incurred by federal agencies directly for capital, operating, or other
expenses.
(a) Cost can include payments for:
(A) Fees to finance, design or engineer the
facility, including but not limited to debt fees and equity fees;
(B) Title searches, escrow fees, government
fees, excluding fees required by OAR 330-091-0150, and shipping;
(C) All materials and supplies needed for the
erection, construction, installation or acquisition of the proposed facility;
and
(D) Work performed by employees
or independent contractors of the applicant based on the following conditions:
(i) Employees or contractors must be
certified, accredited, licensed, or otherwise qualified to do the
work;
(ii) The work must be
associated with the erection, construction, installation or acquisition of the
proposed facility or in the case of a research development and demonstration
facility, the work shall be directly related to the research, development,
demonstration, facility design, monitoring, assessment, evaluation and
reporting related to the product or technology;
(iii) Project management and other similar
costs may only account for up to 15 percent of the total eligible costs;
and
(iv) Costs for employee's or
contractor's work on the energy facility must be detailed and documented as to
specific tasks, hours worked, and compensation costs. Donated, in-kind or
volunteer labor is not eligible; and
(E) Costs for legal counsel that is directly
related to the development of a qualifying facility (non-litigation related) or
directly linked to the research, development or demonstration facility
(excluding patents, copyrights, etc.).
(b) Cost may not include:
(A) Interest and warranty charges;
(B) Litigation or other operational-related
legal fees and court costs;
(C)
Patent searches, application and filing payments;
(D) Costs to maintain, operate, or repair a
facility;
(E) Administrative costs
to apply for grants, loans, tax credits or other similar funding for a facility
including, but not limited to, the BETC charge, costs associated with the
creation and development of the CPA verification letter and costs associated
with securing a pass-through partner for the facility;
(F) Routine operational or maintenance costs
associated with the facility, including services, supplies and labor;
(G) Expenses related to training, education
or other related expenses;
(H)
Expenses that are directly or indirectly offset with federal fee waivers;
or
(I) Other costs the Director
excludes.
(c) If a
facility is built under a lease, lease-option or lease-purchase contract, the
lessee's cost to acquire the facility is the value paid for the facility. If
that amount is not known, the cost is the sum of:
(A) Tax credits passed-through by the lessor
to the lessee;
(B) The amount paid
when the facility is transferred; and
(C) The lease payments not including taxes,
insurance, interest, and operating costs.
(D) Payments to be made in the future must be
discounted to present value.
(d) The Department may conduct inspections to
verify eligible costs.
(e) Eligible
facility costs are limited by costs for a facility, or portion thereof, that
has previously received a Business Energy Tax Credit.
(f) The sum of any payments from federal
grants or credits and the Manufacturing BETC may not exceed total
costs.
(7) "Director":
The Director of the Oregon Department of Energy or designees.
(8) "The Department": The Department of
Energy.
(9) "Facility Operator":
The person or people to whom the applicant gives authority to manage a
facility. Such person or people will be the applicant's agent for all reasons
related to the facility once its development begins.
(10) "Facility Owner": An applicant who
purchases and owns a qualified facility.
(11) "Facility Start" prior to erection,
construction, installation or acquisition: The earliest date on or after the
date of the application that meets one of the following criteria:
(a) A non-refundable deposit will be placed
on the facility equipment;
(b) A
purchase order will be placed for the equipment;
(c) A contract for the design of the facility
will be executed;
(d) A document
that obligates the applicant to proceed with a facility will be executed;
or
(e) Any other type of financial
commitment towards the erection, construction, installation or acquisition of
the facility
(12)
"Federal Grant": Any grant received from the federal government in connection
with a facility.
(13) "Final
Certification": Final certificate issued after completion of an approved BETC
facility.
(14) "Lease Contract": A
contract between a lessor and a lessee of a facility.
(a) In a lease-purchase contract the lessee
owns the facility at the end of the lease and is eligible for the Manufacturing
BETC.
(b) In a lease or lease-option
contract the lessor owns the facility through the life of the contract and is
eligible for the Manufacturing BETC.
(15) "Net Present Value": A cash payment
equivalent to the net present value of the Manufacturing BETC as determined
under OAR 330-091-0140. This is also referred to as the "pass-through
rate."
(16) "Pass-through Option":
An option that allows a facility owner to transfer all or a portion of the
facility's tax credit eligibility to certain persons or businesses in return
for a cash payment equivalent to the net present value. A tax credit may be
transferred one time only, from the facility owner to an eligible pass-through
partner or partners.
(17)
"Pass-through Partner": A personal income tax payer, individual, C corporation
or S corporation that is transferred a tax credit certificate in return for a
cash payment equivalent to the net present value of all or a portion of the
Manufacturing BETC.
(18)
"Preliminary Certification": Preliminary certificate issued upon successful
completion of the first stage in obtaining a Manufacturing BETC.
(19) "Renewable Energy Resource Equipment
Manufacturing Facility": means a facility as defined in ORS
469.185(13) and
subject to standards adopted by the Department in these rules.
(20) "Research, Development, and
Demonstration Facility (RD&D)": A facility that complies with (a) through
(f):
(a) A facility that is not standard
practice and that is likely to produce or produces qualified renewable energy
resource equipment products or technologies that are likely to be manufactured
in Oregon when commercialized. RD&D Manufacturing BETC applicants' total
lifetime project costs will be determined for a defined period established at
the time of the initial application and will be capped at $20,000,000.
Additionally, eligible RD&D facilities must comply with one or more of the
following criteria:
(A) Research facilities
that include a test bench research, prototype or pilot scale construction of a
theoretically proved or primary researched technology;
(B) Development facilities that include the
new manufacture or initiation of the capability to produce new manufacturing or
production capacity in Oregon, excluding development facilities that increase
established manufacturing or production capacity in Oregon;
(C) Demonstration facilities that are likely
to resolve questions on how to apply new or improve technology though pilot or
production scale applications of technology;
(D) Facilities in the Director's
determination are likely to achieve Department goals.
(b) A facility that demonstrates a reasonable
potential to result in energy or conservation benefits in Oregon for which the
value is likely to exceed the value of the tax credit, based on information
filed with the application for preliminary certification.
(c) A qualifying RD&D facility that
exclusively supports renewable energy resource equipment manufacturing will be
eligible for a 50 percent tax credit.
(d) Eligible costs for a Research,
Development or Demonstration facility may include:
(A) Engineering, design and administrative
costs
(B) Costs inherent in a
research, development and demonstration facility that may not result directly
in saved or produced energy. Such costs may include:
(i) Facility design, monitoring, assessment,
evaluation and reporting. This includes but is not limited to: the development
of standards, specifications, policies and procedures facilitating technology
transfer; instruments, and controls.
(ii) Other equipment needed to monitor,
assess or evaluate the facility and the impacts of the facility.
(C) The following costs related to
demonstration model(s) may be considered eligible:
(i) Materials for the demonstration
model(s).
(ii) The manufacturing,
construction, assembly, and/or installation of the demonstration
model(s).
(iii) Testing and
monitoring the demonstration model(s).
(E) Other eligible costs defined by Oregon
Administrative Rule.
(e)
Ineligible costs for a Research, Development or Demonstration facility may
include:
(A) The lease or purchase of land or
building(s) unless the applicant can clearly demonstrate to the Director that
the cost is necessary and exclusive to the facility.
(B) Other ineligible costs defined by Oregon
Administrative Rule.
(f)
A Research, Development or Demonstration facility is not eligible to receive a
tax credit when the facility's activities are a refinement of an existing
technology and do not represent a strategic, new or potentially large benefit
to Oregon.
(21) "Total
Cost": The eligible cost of a facility not limited by ORS
469.200.
(22) "Year": Calendar
year.
Publications: Publications referenced are available from the
agency.
Stat. Auth.: ORS
469.040 &
469.165,
469.185 -
469.225, OL 2011, Ch. 474 HB2523
Stats. Implemented: OL 2011, Ch. 474 HB2523
