Senate Bill No. 479
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
____________
[Introduced February 19, 1996; referred to the
Committee on Government Organization; and
then to the Committee on Finance.]
____________
A BILL to amend 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 members of whom shall be 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), section twenty-one of this article) pursuant
to subdivision (3), subsection (b) and subsection (c), section
twenty-one of this article.
§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 subdivision 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 subdivision 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.
__________
(NOTE: A bill to allow the executive director of the West
Virginia Development Office to designate a representative to the
Review Committee and to permit uncommitted bonds on the fifteenth
day of November of each year or forfeited bonds to go to
applicants in any industrial classification.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.)