Senate Bill No. 454
(By Senators Tomblin, Mr. President, and Buckalew,
By Request of the Executive)
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[Introduced March 24, 1997; referred to the Committee on
Finance.]
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A BILL to amend and reenact sections three-a and twenty-one,
article two-c, chapter thirteen of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, all relating
to allowing the executive director of the development office
to designate a representative to the industrial revenue bond
allocation review committee; and permitting uncommitted bonds
as of the fifteenth day of November of each year or forfeited
bonds to go to applicants in any industrial classification.
Be it enacted by the Legislature of West Virginia:
That sections three-a and twenty-one, article two-c, chapter
thirteen of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
follows:
ARTICLE 2C. INDUSTRIAL DEVELOPMENT AND COMMERCIAL DEVELOPMENT BOND
ACT.
13-2C-3a. Creation of industrial revenue bond allocation review
committee; appointment, term, etc., of private members;
voting; expenses; duties.
(a) There is hereby created the West Virginia industrial
revenue bond allocation review committee consisting of five
members,
two of whom shall be as follows: The secretary of tax and
revenue, who shall serve as chair of the committee, and the
executive director of the development office
or his or her
designee, and three
of whom shall be members chosen from the
general public as private members.
(b) The three private members shall be appointed by the
governor, with the advice and consent of the Senate: Provided,
That one private member shall be appointed from each congressional
district of the state, in such a manner as to provide a broad
geographical distribution of members of the committee: Provided,
however, That at least one private member appointed pursuant to
this subdivision shall have significant experience in economic
development. No more than two private members shall be from the
same political party.
(c)
Not later than the first day of July, one thousand nine
hundred ninety-four, the governor shall appoint the three private
members for staggered terms. The terms of the members first taking office on or after the effective date of this legislation shall
expire as designated by the governor at the time of the nomination,
one at the end of the first year, one at the end of the second
year, and one at the end of the third year, after the first day of
July, one thousand nine hundred ninety-four. As these original
appointments expire, each subsequent Appointment
of the three
members shall be for
a full three-year term staggered terms of
three years. Any member whose term has expired shall serve until
a successor has been duly appointed and qualified. Any member
shall be eligible for reappointment. In case of any vacancy in the
office of a private member, such vacancy shall be filled by
appointment by the governor for the unexpired term. The governor
may remove any private member in case of incompetency, neglect of
duty, gross immorality or malfeasance in office; and he may declare
the office vacant and may appoint a person for such vacancy as
provided in other cases of vacancy.
(d) Members shall not be entitled to compensation for services
performed as members, but shall be entitled to reimbursement for
all reasonable and necessary expenses actually incurred in the
performance of their duties.
(e) A majority of the members of the committee shall
constitute a quorum for the purpose of conducting business. The
affirmative vote of at least the majority of the members present is
necessary for any action taken by vote of the committee. No vacancy in the membership of the committee shall impair the right
of a quorum to exercise all the rights and perform all the duties
of the committee.
(f) The committee shall review and evaluate all applications
for reservation of funds submitted to the development office by a
governmental body pursuant to the provisions of subsections (d) and
(e), section twenty-one of this article, and shall make
reservations of the state allocation (as defined in subdivision
(2), subsection (b) of said section) pursuant to subdivision (3),
subsection (b) and subsection (c) of said section.
§13-2C-21. Ceiling on issuance of private activity bonds;
establishing procedure for allocation and disbursements; reservation of funds; limitations; unused allocation; expirations and carryovers.
(a) Private activity bonds (as defined in Section 141(a) of
the United States Internal Revenue Code of 1986, other than those
described in Section 146(g) of the Internal Revenue Code) issued
pursuant to this article, including bonds issued by the West
Virginia public energy authority pursuant to subsection (11),
section five, article one, chapter five-d of this code, or under
article eighteen, chapter thirty-one of this code, during any
calendar year shall not exceed the ceiling established by Section
146(d) of the United States Internal Revenue Code. It is hereby
determined and declared as a matter of legislative finding: (i) That, in an attempt to promote economic revitalization of
distressed urban and rural areas, certain special tax incentives
will be provided for empowerment zones and enterprise communities
to be designated from qualifying areas nominated by state and local
governments, all as set forth by Section 1391 et seq. of the United
States Internal Revenue Code; (ii) that qualified businesses
operating in enterprise communities and empowerment zones will be
eligible to finance property and provide other forms of financial
assistance as provided for in Section 1394 of the United States
Internal Revenue Code; (iii) that it is in the best interest of
this state and the citizens thereof to facilitate the acquisition,
construction and equipping of projects within designated
empowerment zones and enterprise communities by providing an
orderly mechanism for the commitment of the annual ceiling for
private activity bonds for such projects. It is hereby further
determined and declared as a matter of legislative finding: (iv)
that the production of bituminous coal in this state has resulted
in coal waste, which coal waste is stored in areas generally
referred to as gob piles; (v) that such gob piles are unsightly and
have the potential to pollute the environment in this state; (vi)
that the utilization of the materials in such gob piles to produce
alternative forms of energy needs to be encouraged; (vii) that
Section 142(a)(6) of the United States Internal Revenue Code of
1986, permits the financing of solid waste disposal facilities through the issuance of such private activity bonds; and (viii)
that it is in the best interest of this state and the citizens
thereof to facilitate the construction of facilities for the
generation of power through the utilization of coal waste by
providing an orderly mechanism for the commitment of the annual
ceiling for private activity bonds for such projects.
(b) On or before the first day of each calendar year, the
executive director of the development office shall determine the
state ceiling for such year based on the criteria of the United
States Internal Revenue Code, which annual ceiling shall be
allocated among the several issuers of bonds under this article or
under article eighteen, chapter thirty-one of this code, as
follows:
(1) Fifty million dollars shall be allocated to the West
Virginia housing development fund for the purpose of issuing
qualified mortgage bonds, qualified mortgage certificates or bonds
for qualified residential rental projects.
(2) The amount remaining after the allocation to the West
Virginia housing development fund described in subdivision (1) of
this subsection shall be retained by the West Virginia development
office and shall be referred to in this section as the "state
allocation".
(3) For calendar year one thousand nine hundred ninety-five,
twenty-five and one-half percent of the state allocation and for all subsequent calendar years, thirty-five percent of the state
allocation shall be set aside by the development office to be made
available for lessees, purchasers or owners of proposed projects,
hereafter in this section referred to as "nonexempt projects",
which do not qualify as exempt facilities as defined by United
States Internal Revenue Code. All reservations of private activity
bonds for nonexempt projects shall be approved and awarded by the
committee based upon an evaluation of general economic benefit and
any rule or regulation that the council for community and economic
development may promulgate pursuant to section three, article two,
chapter five-b of this code:
Provided, That all requests for
reservations of funds from projects described in this subsection
shall be submitted to the development office on or before the first
day of November of each calendar year:
Provided, however, That on
the fifteenth day of November of each calendar year, the
uncommitted portion of this part of the state allocation, shall
revert to and become part of the state allocation portion described
in subsection (g) of this section.
(4) For calendar year one thousand nine hundred ninety-five,
four and one-half percent of the state allocation and for all
subsequent calendar years, ten percent of the state allocation
shall be made available for lessees, purchasers or owners of
proposed commercial or industrial projects which qualify as exempt
facilities under Section 1394 of the United States Internal Revenue Code. All reservations of private activity bonds for the projects
shall be approved and awarded by the committee based upon an
evaluation of general economic benefit and any rule or regulation
that the council for community and economic development may
promulgate pursuant to section three, article two, chapter five-b
of this code:
Provided, That all requests for reservations of
funds from projects described in this subsection shall be submitted
to the development office on or before the first day of November of
each calendar year: Provided, however, That on the fifteenth day
of November of each calendar year, the uncommitted portion of this
part of the state allocation shall revert to and become part of the
state allocation portion described in subsection (g) of this
section.
(c) For calendar year one thousand nine hundred ninety-five,
the remaining seventy percent and for all subsequent calendar
years, the remaining fifty-five percent of the state allocation
shall be made available for lessees, purchasers or owners of
proposed commercial or industrial projects which qualify as exempt
facilities as defined by Section 142(a) of the United States
Internal Revenue Code. All reservations of private activity bonds
for exempt facilities shall be approved and awarded by the
committee based upon an evaluation of general economic benefit and
any rule or regulation that the council for community and economic
development may promulgate pursuant to section three, article two, chapter five-b of this code:
Provided, That no reservation shall
be in an amount in excess of fifty percent of this portion of the
state allocation:
Provided, however, That all requests for
reservations of funds from projects described in this subsection
shall be submitted to the development office on or before the first
day of November of each calendar year: Provided further, That on
the fifteenth day of November of each calendar year, the
uncommitted portion of this part of the state allocation shall
revert to and become part of the state allocation portion described
in subsection (g) of this section.
(d) No reservation shall be made for any project until the
governmental body seeking the same shall submit a notice of
reservation of funds as provided in subsection (e) of this section.
The governmental body must first adopt an inducement resolution
approving the prospective issuance of bonds and setting forth the
maximum amount of bonds to be issued. Each governmental body
seeking a reservation of funds following the adoption of such
inducement resolution shall submit a notice of inducement signed by
its clerk, secretary or recorder or other appropriate official to
the development office. Such notice shall include information as
may be required by the development office pursuant to any rule or
regulation of the council for community and economic development.
Notwithstanding the foregoing, when a governmental body proposes to
issue bonds for the purpose of: (i) Constructing, acquiring or equipping a project described in subdivision (3) or (4), subsection
(b) of this section; or (ii) constructing an energy producing
project which relies, in whole or in part, upon coal waste as fuel,
to the extent such project qualifies as a solid waste facility
under Section 142(a)(6) of the United States Internal Revenue Code
of 1986, the project may be awarded a reservation of funds from the
state allocation available for three years subsequent to the year
in which the notice of reservation of funds is submitted, at the
discretion of the executive director of the development office:
Provided, That no discretionary reservation may be made for any
single project described in this subsection in an amount in excess
of thirty-five percent of the state allocation available for the
year subsequent to the year in which the request is made. A
discretionary reservation of the state allocation for a project
described in this subsection shall not be granted by the executive
director of the development office unless the project for which the
request is made has received a certification from the federal
energy regulatory commission as a qualifying facility or a
cogeneration project.
(e) Currently with or following the submission of its notice
of inducement, the governmental body at any time deemed expedient
by it may submit its notice of reservation of funds which shall
include the following information:
(1) The date of the notice of reservation of funds;
(2) The identity of the governmental body issuing the bonds;
(3) The date of inducement and the prospective date of
issuance;
(4) The name of the entity for which the bonds are to be
issued;
(5) The amount of the bond issue or, if the amount of the bond
issue for which a reservation of funds has been made has been
increased, the amount of the increase;
(6) The type of issue; and
(7) A description of the project for which the bonds are to be
issued.
(f) The development office shall accept the notice of
reservation of funds no earlier than the first calendar workday of
the year for which a reservation of funds is sought:
Provided,
That a notice of reservation of funds with respect to a project
described in subdivision (4), subsection (b) of this section or an
energy producing project that is eligible for a reservation of
funds for a year subsequent to the year in which the notice of
reservation of funds is submitted may contain an application for
funds from a subsequent year's state allocation. Upon receipt of
the notice of reservation of funds, the development office shall
immediately note upon the face of the notice the date and time of
reception.
(g) If the bond issue for which a reservation has been made has not been finally closed within one hundred twenty days of the
date of the reservation to be made by the committee, or the thirty- first day of December following such date of reservation if sooner
and a statement of bond closure which has been executed by the
clerk, secretary, recorder or other appropriate official of the
governmental body reserving the same has not been received by the
development office within that time, then the reservation shall
expire and be deemed to have been forfeited and the funds so
reserved shall be released and revert to the portion of the state
allocation from which the funds were originally reserved and shall
then be made available for other qualified issues in accordance
with this section and the Internal Revenue Code:
Provided, That as
to any reservation for a nonexempt project
or any reservation for
a project described in subdivision (4), subsection (b) of this
section that is forfeited on or after the first day
of November in
any calendar year,
fifty percent of such reservation shall revert
to the
portion of the state allocation
described in subsection (c)
of this section and fifty percent of such reservation shall revert
to the portion of the state allocation described in subdivision
(4), subsection (b) of this section for allocation by the
industrial revenue bond allocation review committee:
Provided,
however, That as to any notice of reservation of funds received by
the development office during the month of December in any calendar
year with respect to any project qualifying as an elective carry forward pursuant to Section 146(f)(5) of the Internal Revenue Code,
the notice of reservation of funds and the reservation to which the
same relates shall not expire or be subject to forfeiture:
Provided further, That any unused state ceiling as of the
thirty-first day of December in any year not otherwise subject to
a carry forward pursuant to Section 146(f) of the Internal Revenue
Code shall be allocated to the West Virginia housing development
fund, which shall be deemed to have elected to carry forward the
unused state ceiling for the purpose of issuing qualified mortgage
bonds, qualified mortgage credit certificates or bonds for
qualified residential rental projects, each as defined in the
Internal Revenue Code. All requests for subsequent reservation of
funds upon loss of a reservation pursuant to this section shall be
treated in the same manner as a new notice of reservation of funds
in accordance with subsections (d) and (e) of this section.
(h) Once a reservation of funds has been made for a project
described in subdivision (4), subsection (b) of this section or for
an energy producing project which relies, in whole or in part, upon
coal waste as fuel and otherwise qualifies as a solid waste
facility under Section 142(a)(6) of the United States Internal
Revenue Code of 1986, notwithstanding the language of subsection
(g) of this section, the reservation shall remain fully available
with respect to such project until the first day of October in the
year from which the reservation was made at which time, if the bond issue has not been finally closed, the reservation shall expire and
be deemed forfeited and the funds so reserved shall be released as
provided in subsection (g) of this section.
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(NOTE: A bill to permit uncommitted industrial revenue bonds
on the fifteenth day of November of each year or forfeited bonds to
become a part of the state's general allocation for distribution to
applicants in any industrial classification by the Industrial
Revenue Bond Allocation Review Committee and to permit the
executive director of the West Virginia Development Office to
designate a representative to the Review Committee.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.)