Current through Register Vol. 63, No. 9, September 1, 2024
(1) General:
(a) The Director reviews an application for a
Business Energy Tax Credit for Renewable Energy Resource Equipment
Manufacturing in two stages. The first stage is called preliminary
certification. The second stage is called final certification. The final
certification consists of the determination of eligible costs for purposes of
the tax credit and the issuance of the final certificate.
(b) To begin the review process for each
stage, or to change the facility during the review process, an applicant must
submit an application on the form approved by the Department.
(c) A facility owner planning to use a
pass-through partner will select the pass-through option on the Application for
Preliminary Certification.
(d) The
Director may impose conditions in approving a preliminary or final
certification that the facility must operate in accordance with the
representations made by the applicant, and is in accordance with the provisions
of ORS 469.185 to
469.225 and any applicable rules
or standards adopted by the Director.
(e) If the Department determines that the
applicant qualifies for a Manufacturing BETC, the Department may issue a
preliminary certification. The preliminary certification may contain specific
criteria and conditions for the facility to meet in order to obtain a final
certification based on the information provided in the application for the BETC
and type of facility that is described in the application. In addition, the
Department may require the applicant to enter into a performance agreement or
other similar agreement as a condition of approval.
(2) Preliminary Certification Review Process:
Except as provided in OAR 330-091-0130(1) and (2), a completed application for
preliminary certification shall be received by the Department on or prior to
the erection, construction, installation or acquisition of a facility.
(a) Within 60 days after an application for
preliminary certification is filed, the Director will decide if it is complete.
An application is incomplete if it does not include information needed to
demonstrate substantive compliance with the provisions of ORS
469.185 to
469.225 and any applicable rules
or standards adopted by the Director. The Director will provide the applicant a
written notice relating to the incomplete application and the information
needed to make the application complete. If no action is taken within 30 days
by the applicant, the application will expire.
(b) Within 120 days after a completed
application is submitted the Director will notify the applicant of the status
of the application, except as otherwise provided in subsection (5), if the
applicant has not been notified otherwise the application has been denied.
(A) If it complies, the Director will approve
the preliminary certification. The preliminary certification will state the
amount of the costs that are eligible (eligible costs) for a Manufacturing BETC
up to the maximum amount of certifiable costs under ORS
496.200. It may differ from the
amount requested for reasons explained in the preliminary certification and
based on these rules. Also, it will state any conditions that must be met
before development, final certification, or some other event can occur. The
Director will explain why each condition is needed to comply with these
rules.
(B)If it does not comply,
the Director will deny the application. No later than 60 days after the
Director issues an order denying the application, the applicant may request
reconsideration as provided in OAR 330-091-0133(4).
(C) An applicant can re-submit an application
that is denied if features of the facility change, the applicant provides data
the absence of which resulted in the denial, or other changes warrant. An
application for preliminary certification can be amended or withdrawn by the
applicant before the Director issues a preliminary certification. If an
application is amended, the time within which review occurs starts over. An
applicant may request reconsideration of an application denial under this
rule.
(3)
Certifying Less than Total Eligible Costs: If under the provisions of ORS
469.200(2), the
Director intends to certify less than the total or no amount of eligible costs
of a renewable energy resource equipment manufacturing facility, the Director
will notify the applicant in writing of that intent before approving the
preliminary certification. The applicant will have 30 calendar days from the
date notification was issued to inform the Director in writing whether it
wishes to withdraw the application or suspend further consideration of the
application until a future date specified or submit additional information in
support of the application. If the Director has not received notification or
additional information in support of the application within that period of
time, the Director may certify less than the total or no amount of eligible
costs of the renewable energy resource equipment manufacturing facility. Once
eligible costs are certified and a preliminary certification is issued under
this section, the certified eligible costs may be revised if conditions under
ORS 469.200(2)
change or upon notification from the applicant or other information indicating
that the scope of the project or the facility has changed in such a way to
impact the preliminary certificate.
(4) Preliminary Certification After Start of
a Facility:
(a) If a facility has been started
an applicant may file a written request with the Director for approval of a
preliminary certification after facility start. Such a request must contain
information in accord with these rules.
(b) The Director may approve preliminary
certification after facility start if:
(A) The
request is in accord with these rules;
(B) Special circumstances make application
for preliminary certification before facility start up impracticable. Such
circumstances include process delays beyond the applicant's control, facility
funding and energy supplies or markets; and
(C) The Director receives the waiver request
within 90 days of facility start date. Under extraordinary circumstances the
Director may extend the waiver period provided the facility serves the aims of
the program.
(D) Failing to submit
an application for preliminary certification before signing contracts for the
facility does not constitute special circumstances supporting a
waiver.
(5)
How Preliminary Certification Can be Revoked: The Director may alter,
condition, suspend, deny or revoke a preliminary certification for a reason
listed in this section
(a) A facility is not
completed and a complete final certification application received before 1,825
days (5 years) after the preliminary certification was issued.
(b) Permits, waivers, and licenses required
by these rules are not filed with the Department before facility development
starts.
(c) The facility undergoes
changes without the changes being approved under these rules.
(d) Any other reason allowed by the
amendments to ORS 469.210(3) in
Oregon Laws, 2010, Chapter 76, Section 11.
(6) Amendments to Preliminary Certifications:
To change a facility that has a preliminary certification and amend the
preliminary certification, the applicant must file a written request with the
Director prior to the project completion date.
(a) The request must describe the change to
the facility and reasons for the change. It may include changes in cost, tax
credit amount, facility design, and materials. The request may also include
changes in the amount of energy saved or produced, jobs created, project
financing, the applicant, the location, or other matters that demonstrate
substantial change in the project's scope. The request must be accompanied by
the appropriate fee.
(b)If a
request does not include information needed to demonstrate substantive
compliance with the provisions of ORS
469.185 to
469.225 and any applicable rules
or standards adopted by the Director, the department will provide the applicant
a written notice relating to the information needed to make the request
complete. If the applicant does not provide all of the requested information to
the Department within 30 days, the request will expire and no changes will be
made to the preliminary certification.
(c) Within 60 days after the applicant files
the change request, the Director will decide if the facility as modified
complies with these rules.
(A) If it complies,
the Director may issue an amended preliminary certification which may contain
new or amended criteria, conditions and requirements.
(B) If it does not comply, the Director will
issue an order that denies the change and provide written reasons for the
denial.
(7)
If the facility does not proceed: The applicant must inform the Director in
writing if it does not proceed with the facility or proceeds without the tax
credit. In that case, the Director will cancel the preliminary
certification.
(8) Pass-through
Option Process and Application:
(a) In
addition to the application for preliminary certification, an applicant who
plans to transfer the tax credit certificate to a pass-through partner must
complete and file the Pass-though Option Application form supplied by the
Department.
(b) If the Pass-through
Partner is not yet secured at the time of the Application for Preliminary
Certification, the facility owner will complete that section of the application
by inserting "Partner to be identified" and will submit an updated application
when the Pass-through Partner is secured.
(c) The Department will not transfer and
issue a final certificate to a pass-through partner until the facility owner
provides evidence to the Department that the owner has received the
pass-through payment in full.
(9) Final Certification Review Process and
Application: An application for final certification must be filed after the
facility is completed as defined in these rules. An application for final
certification must include:
(a) Evidence to
demonstrate that:
(A) The facility complies
with all conditions and criteria of the preliminary certification and with the
provisions of ORS Chapter 469 and the rules adopted thereunder;
(B) The facility remains in compliance with
local, state, and federal laws, including local land use laws and with any
conditions imposed by the local government as a condition of land use approval;
and
(C) The facility will be
maintained and operated for at least five years after the facility is placed
into operation, or a lesser period if approved and specified on the preliminary
certification.
(b) An
account of the facility costs, including prorated costs.
(A) A certified public accountant, who is not
otherwise permanently employed by the facility owner or pass-through partner,
must complete a written review and summary of costs paid or incurred based on
canceled checks, invoices, or receipts, a binding contract or agreement, or
other documentation as may be required under these rules. If an applicant has
an outstanding binding contract or loan agreement, the certified public
accountant shall include sufficient information to demonstrate that accounts
directly related to the facility are not in default.
(B) The application must include information
regarding any federal grants applied for or received in connection with the
facility including, without limitation, the grant(s) applied for, the date of
each application, the amount of the requested grant(s), when applicant expects
to receive notice of grant approval or denial and any other information that
may be required by the director.
(c) Proof the facility is completed and
operating.
(d) If the facility is
leased or rented, a copy of the lease or rental agreement.
(e) Documentation that the applicant and
facility owner or owners are current on their property taxes where the facility
is located if appropriate; and
(f)
Other data the Director finds are needed to assure a facility complies with
these rules and conditions imposed in the preliminary certificate
(g) The names of the person or persons who
are to be issued the final certificate. If the final certificate is to be
issued to a pass-through partner, the Department will not issue the certificate
until the appropriate criteria, conditions and requirements of the preliminary
and final certification and these rules are satisfied.
Stat. Auth.: ORS
469.040 &
469.165,
469.185 -
469.225, OL 2011, Ch. 474 HB2523
Stats. Implemented: OL 2011, Ch. 474 HB2523.
