OAR 330-091-0133
Final Certification
(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 469.220 on the date marked received by the department, unless the application is incomplete. If the application for final certification is not complete, the date marked received by the department on the complete application containing all of the required information shall be considered the received date.(A)
When a facility owner chooses to transfer the tax credit under ORS 469.206, the Department may hold the application for final certification until pass-through partner(s) information is received by the Department.(B)
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.(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 469.185 to 469.225 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. The Director will process a complete final certification application received prior to the date of the expiry of the preliminary certificate provided under ORS 469.205. Applications received after the expiry of the preliminary certificate are not eligible.(c)
If the Director approves the application, the Director will issue final certification, which will state the amount of certified costs, reduced as applicable by any federal grants received, 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.(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 469.215(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 469 (Energy) and these rules.(3)
Basis for Revoking Tax Credit Benefits(a)
The Director may revoke certificates as provided in ORS 469.225 and 315.354 (Energy conservation facilities)(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 469.225, upon receiving information that a Manufacturing 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.(e)
Revocation of the certificate due to misrepresentation, fraud or failure to construct or operate the facility in compliance with the certificate results in the loss of all prior and future tax credits. If all or a part of the tax credit certificate has been transferred to a pass-through partner under ORS 469.206, 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.(4)
Sale or Disposition of the Facility after Final Certification:(a)
Pursuant to ORS 315.354 (Energy conservation facilities)(5), upon receiving notice that the facility has been sold or otherwise transferred, the Director will revoke the final certificate, as of the date of the disposition of the facility, unless the Manufacturing BETC for the facility has already been transferred under 469.206.(b)
The new owner or new or renewed lessee of a facility may apply for a final certificate. The request must comply with OAR 330-091-0130 (How the Department Processes Application for a Manufacturing BETC)(10) and include information to allow the Director to determine the amount of tax credit not claimed by the former owner or former lessee. If the facility continues to comply with the requirements set out in these rules and any applicable conditions imposed by the Director, the Director will issue a new final certification consistent with the provisions of ORS 315.354 (Energy conservation facilities)(5).(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 469.205 or ORS 469.215 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.
Source:
Rule 330-091-0133 — Final Certification, https://secure.sos.state.or.us/oard/view.action?ruleNumber=330-091-0133.