330-230-0000
Applicability of Rules in OAR 330, Division 230

These rules provide procedures for compliance activities and pass-through transactions for the incentive programs established in House Bill 3672 (2011) and amended by House Bill 4079 (2012). The compliance rules in OAR 330-230-0010 to 330-230-0060 apply to all applicants for energy incentive programs for energy conservation, transportation and renewable energy grants as governed by ORS 469B. The pass-through rules in OAR 330-230-0110 to 330-230-0150 apply to all applicants for the energy incentive program for energy conservation projects as governed by ORS 469B.270 through 469B.306 and transportation projects as governed by 469B.320 through 469B.347.

Statutory/Other Authority: OL 2011, Ch. 730 & Sec. 34 - 51
Statutes/Other Implemented: OL 2011, Ch. 730 & Sec. 34 - 51
History:
DOE 7-2012, f. & cert. ef. 6-19-12
DOE 12-2011(Temp), f. & cert. ef. 12-23-11 thru 6-19-12

330-230-0010
Definitions

For the purposes of OAR 330-230-0010 to 330-230-0060 the following definitions apply:

(1) “Department” means the Oregon Department of Energy.

(2) “Director” means the director of the department.

(3) “Period of operation” means:

(a) For an Energy Conservation Project or a Transportation Project, five years from the date of issuance of the tax credit certificate.

(b) For a Renewable Energy Production System, five years from the date of final payment under the Performance Agreement.

(4) “Project” means the system, activity or facility under inspection or review by the department.

(5) “Project inspection” means a physical examination by the department of an Energy Conservation Project or a Transportation Project to determine if the project conforms to the Preliminary Certificate or application for preliminary certification.

(6) “Project review” means an examination by the department of the records, facilities or operations of an applicant for a Renewable Energy Development grant.

Statutory/Other Authority: OL 2011, Ch. 730 & Sec. 34 - 51
Statutes/Other Implemented: OL 2011, Ch. 730 & Sec. 34 - 51
History:
DOE 7-2012, f. & cert. ef. 6-19-12
DOE 12-2011(Temp), f. & cert. ef. 12-23-11 thru 6-19-12

330-230-0020
Purpose of Inspection or Review

(1) The department may require project inspection or project review at any time from the date of initial application through the end of a project’s period of operation.

(2) Inspections or reviews may be conducted by the department to verify:

(a) The amount certified for a credit,

(b) Completion of a project,

(c) A project is operational,

(d) Ownership of a project,

(e) Compliance with the preliminary certificate or application for preliminary certification and any amendments,

(f) Compliance with a performance agreement, or

(g) Compliance with ORS Chapter 469B and any applicable rules or standards adopted by the director.

(3) The applicant or its designated representative must be present during the inspection or review.

Statutory/Other Authority: OL 2011, Ch. 730 & Sec. 34 - 51
Statutes/Other Implemented: OL 2011, Ch. 730 & Sec. 34 - 51
History:
DOE 7-2012, f. & cert. ef. 6-19-12
DOE 12-2011(Temp), f. & cert. ef. 12-23-11 thru 6-19-12

330-230-0030
Selection of Projects, Notice

(1) Criteria for selecting projects for inspection or review includes, but is not limited to, consideration of project cost, type and location.

(2) The department will provide the applicant written notice of the inspection or review in advance of the planned inspection or review date.

Statutory/Other Authority: OL 2011, Ch. 730 & Sec. 34 - 51
Statutes/Other Implemented: OL 2011, Ch. 730 & Sec. 34 - 51
History:
DOE 7-2012, f. & cert. ef. 6-19-12
DOE 12-2011(Temp), f. & cert. ef. 12-23-11 thru 6-19-12

330-230-0040
Project Access

(1) The applicant must provide safe access to all areas of the project the department reasonably considers necessary to complete the inspection.

(2) The exact safety needs and requirements will be specific to each project and may include, but are not limited to, a secure ladder or stairs for access, and notice of any hazardous conditions.

(3) The department will not inspect a portion of a facility where the access provided presents, in the opinion of the department, an unreasonable risk to personal safety.

Statutory/Other Authority: OL 2011, Ch. 730 & Sec. 34 - 51
Statutes/Other Implemented: OL 2011, Ch. 730 & Sec. 34 - 51
History:
DOE 7-2012, f. & cert. ef. 6-19-12
DOE 12-2011(Temp), f. & cert. ef. 12-23-11 thru 6-19-12

330-230-0050
Inspection or Review Outcomes

(1) A project will pass inspection or review if sufficient information is available for the department to verify the statements made in an application, or conformance with conditions of a certification or performance agreement.

(2) The department may record that the inspected project has failed an inspection if:

(a) The applicant fails to provide a reasonable opportunity for the department to conduct an inspection or review,

(b) The applicant fails to provide sufficient and safe access to the project,

(c) The project is not operational,

(d) The applicant or project owner misses a scheduled inspection or review appointment without notice to the department,

(e) The project does not conform to the preliminary certificate, application for preliminary certification, ORS chapter 469B or any applicable rules or standards adopted by the director, or

(f) The project does not comply with the performance agreement.

(3) The department will review and may approve an application for a project that has failed a project inspection, if the applicant provides information explaining the reason or justification for the discrepancies and demonstrates the reason for the failure noted under (2)(e) and (2)(f) of this section. The project must also meet all other program requirements. Applicants must submit requested information within 30 calendar days of notification of the failed inspection.

Statutory/Other Authority: OL 2011, Ch. 730 & Sec. 34 - 51
Statutes/Other Implemented: OL 2011, Ch. 730 & Sec. 34 - 51
History:
DOE 7-2012, f. & cert. ef. 6-19-12
DOE 12-2011(Temp), f. & cert. ef. 12-23-11 thru 6-19-12

330-230-0060
Failed Inspections or Reviews, Notice, Reconsideration

(1) The department may deny a tax credit or grant to, or may take action to recover any tax credit or grant already issued from, an applicant who has not resolved the problem identified in a failed project inspection or review.

(2) The department will provide written notice to the applicant explaining the reason for a denial, suspension or revocation of a tax credit certificate or grant due to a failed project inspection or review.

(3) The applicant may request reconsideration of the failed project inspection or review. A request for reconsideration must be received by the department within 30 calendar days of the date of the notice of failure.

(4) A request for reconsideration must include an explanation of why the applicant believes the project should pass inspection or review, a request for a new inspection or review and payment of the required re-inspection fee.

(5) The department may waive all or part of the re-inspection fee if it denies the request for reconsideration or accepts the applicant’s explanation of special circumstances for the failure of the inspection or review.

Statutory/Other Authority: OL 2011, Ch. 730 & Sec. 34 - 51
Statutes/Other Implemented: OL 2011, Ch. 730 & Sec. 34 - 51
History:
DOE 7-2012, f. & cert. ef. 6-19-12
DOE 12-2011(Temp), f. & cert. ef. 12-23-11 thru 6-19-12

330-230-0110
Definitions for Pass-Through

For the purposes of OAR 330-230-0110 to 330-230-0150 the following definitions apply:

(1) “Department” means the Oregon Department of Energy.

(2) “Pass-through amount” means the amount, equal to the present value of the credit calculated in accordance with the formula set out in OAR 330-230-0130, paid to an applicant in exchange for the right to claim the tax credit.

(3) “Pass-through partner” means an individual or entity that pays the pass-through amount to an applicant and receives the tax credit certificate in place of the applicant.

(4) “Transferee” means an individual or entity that pays the pass-through amount to an applicant that has been issued the tax credit certificate, and receives a re-issued tax credit certificate in place of the applicant.

Statutory/Other Authority: OL 2011, Ch. 730 & Sec. 34 - 51
Statutes/Other Implemented: OL 2011, Ch. 730 & Sec. 34 - 51
History:
DOE 7-2012, f. & cert. ef. 6-19-12
DOE 12-2011(Temp), f. & cert. ef. 12-23-11 thru 6-19-12

330-230-0120
Pass-Through Eligibility

(1) An applicant eligible to receive a tax credit may transfer the credit in return for a cash payment.

(2) An eligible individual or entity that pays the present value to purchase the approved tax credit from the applicant is eligible to claim the tax credit in place of the original applicant.

(3) A tax credit may be transferred one time only, from the applicant to an eligible pass-through partner.

(4) A tax credit that has been transferred to a pass-through partner may be first claimed during the tax year of the pass-through partner in which the pass-through partner paid for the credit, in accordance with ORS 469B.297(3) or 469B.338(3).

Statutory/Other Authority: OL 2011, Ch. 730 & Sec. 34 - 51
Statutes/Other Implemented: OL 2011, Ch. 730 & Sec. 34 - 51
History:
DOE 7-2012, f. & cert. ef. 6-19-12
DOE 12-2011(Temp), f. & cert. ef. 12-23-11 thru 6-19-12

330-230-0130
Pass-Through Amount

(1) The following formulas will be used to calculate the present value of the tax credit for transfer purposes:

(a) For tax credits that may be claimed over 5 succeeding tax years, the formula is: Tax Credit Amount/[1 + (3(5 year Treasury yield rate) – 3 year net rate of change for the urban CPI for the west region)]^5 = Present Value

(b) For tax credits that may be claimed in one tax year the formula is: Tax Credit Amount/[1 + (2(2 year Treasury yield rate) – net rate of change for the urban CPI for the west region)]^1 = Present Value

(2) Using the formulas in (1)(a) and (b) of this rule, the department will review and recalculate the present value of the tax credit on a quarterly basis and will publish the results on the department’s web page. The department will use the rates in effect on the 15th of March, June, September and December to calculate the present value for the quarter beginning on the first of the following month.

(3) In the event of a deflationary environment, the department may adjust the formulas in section (1), by adding the urban CPI for the western region, to ensure the present value is less than the certified tax credit amount.

(4) If an applicant elects to transfer the tax credit, the pass-through amount is determined by the present value in effect on the date the department receives the complete application for preliminary certification or the complete informational filing. Amendments will not change the pass-through rate.

Statutory/Other Authority: OL 2011, Ch. 730 & Sec. 34 - 51
Statutes/Other Implemented: OL 2011, Ch. 730 & Sec. 34 - 51
History:
DOE 7-2012, f. & cert. ef. 6-19-12
DOE 12-2011(Temp), f. & cert. ef. 12-23-11 thru 6-19-12

330-230-0140
Pass-Through Process

(1) An applicant planning to transfer the tax credit must select the pass-through option on the final certification application.

(2) If a pass-through partner has not been identified at the time of the preliminary certification application, the applicant must note “partner to be identified” and submit additional information when the pass-through partner is identified.

(3) If an applicant chooses to transfer the tax credit, the application for final certification must include a complete, signed pass-through partner agreement form.

(4) When an applicant chooses to transfer a tax credit, the department may hold the application for final certification until pass-through partner information is received by the department. Any application in which the applicant has indicated a choice to transfer the tax credit is not a “completed application” until the department receives the completed final certification application form, the appropriate 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.

(5) If the tax credit is being transferred to more than one pass-through partner, the certification period for each partner will begin during the tax year the partner pays for the credit.

(6) The department will not issue a tax credit certificate to a pass-through partner until the appropriate criteria, conditions and requirements of the preliminary certification and these rules are satisfied.

(7) For purposes of administering the sunset of the program, the department may issue a tax credit to an applicant, even though the applicant previously indicated a choice to transfer the tax credit to a pass-through partner, if the department has not received a completed application that includes the signed pass-through partner agreement form at least 60 calendar days prior to the sunset date for the program. A tax credit will be issued to an applicant if the applicant and the project meet all applicable requirements and the only reason the application for final certification is incomplete is because the pass-through partner agreement form is not complete.

(8) The department will issue a tax credit certificate to the pass-through partner when the applicant confirms receipt of a payment equal to the present value of the tax credit and the applicant relinquishes any claim to the credit.

Statutory/Other Authority: OL 2011, Ch. 730 & Sec. 34 - 51
Statutes/Other Implemented: OL 2011, Ch. 730 & Sec. 34 - 51
History:
DOE 7-2012, f. & cert. ef. 6-19-12
DOE 12-2011(Temp), f. & cert. ef. 12-23-11 thru 6-19-12

330-230-0150
Transfer of Tax Credits Issued to an ApplicantTransfer of tax credits issued to an applicant

(1) An applicant who has been issued a tax credit certificate may transfer the tax credit to an eligible transferee through the department process provided by these rules, provided the transfer occurs within 12 months of the issuance of the tax credit certificate to the applicant.

(2) If an applicant uses any portion of the tax credit it may not be transferred, in accordance with ORS 469B.297(2) or 469B.338(2).

(3) The department will not provide assistance in locating a transferee.

(4) A tax credit certificate may only be re-issued once, upon a transfer from the applicant to the transferee.

(5) Tax credit certificates may be re-issued only in the names of the individual or entity transferee in order to be able to claim the transferred credit.

(6) The transferee may not claim the credit for a tax year prior to the year in which the transferee pays for the credit. If the applicant has not received the payment when the application is submitted, the tax credit certificate will be dated to reflect that the tax credit period begins as of the date the applicant states payment is expected to be received.

(7) The applicant must submit a complete tax credit transfer application and the required fee to the department. The transfer application must:

(a) Include an affidavit from the project owner affirming that no portion of the tax credit has been claimed and that the project owner has received a cash payment equal to the present value of the credit from the transferee, as calculated under these rules.

(b) Provide power of attorney to authorize the department to confirm with the Oregon Department of Revenue that no portion of the tax credit has been claimed.

(c) Include the original tax credit certificate issued to the applicant.

(8) Upon compliance with this rule and any other applicable requirements, the department will re-issue the tax credit certificate to the transferee.

Statutory/Other Authority: OL 2011, Ch. 730 & Sec. 34 - 51
Statutes/Other Implemented: OL 2011, Ch. 730 & Sec. 34 - 51
History:
Reverted to DOE 7-2012, f. & cert. ef. 6-19-12
DOE 1-2015(Temp), f. & cert. ef. 3-23-15 thru 9-18-15
DOE 7-2012, f. & cert. ef. 6-19-12