Department of Energy, Chapter 330
Rule Caption: Amends BETC final certification rules for sale of facility and includes energy performance reporting requirements
Adm. Order No.: DOE 3-2014
Filed with Sec. of State: 4-1-2014
Certified to be Effective: 4-1-14
Notice Publication Date: 3-1-2014
Rules Amended: 330-090-0133
Subject: Although the 2011 Oregon Legislature replaced the Business Energy Tax Credit (BETC) program with the new Energy Incentives Program, the Oregon Department of Energy still must carry out its obligations to BETC participants before that program officially ends July 1, 2014. The rule amends the final certification rule section. The rule formalizes the process used for issuing a new certificate with the sale or disposition of a facility after final certification as provided in ORS 315.354(5). The rule also adds an energy performance reporting requirement. The rule would require certain types of BETC projects to report energy performance annually for up to five years after receiving final certification. The energy performance reporting requirement may apply to projects receiving BETC final certification after January 1, 2014.
Rules Coordinator: Elizabeth Ross—(503) 373-8534
(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
Hist.: DOE 2-2009(Temp), f. & cert. ef. 11-3-09 thru 5-1-10; DOE 3-2010, f. & cert. ef. 4-30-10; DOE 4-2010(Temp), f. 5-21-10, cert. ef. 5-27-10 thru 11-2-10; Administrative correction 11-23-10; DOE 14-2010, f. & cert. ef. 11-23-10; DOE 3-2011(Temp), f. 4-15-11, cert. ef. 4-18-11 thru 10-14-11; DOE 6-2011, f. & cert. ef. 9-29-11; DOE 7-2011, f. & cert. ef. 10-25-11; DOE 10-2011, f. & cert. ef. 11-30-11; DOE 8-2012, f. & cert. ef. 7-10-12; DOE 1-2013, f. & cert. ef. 5-13-13; DOE 3-2014, f. & cert. ef. 4-1-14
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