Title 145 W. Va. C.S.R.

Development Office Development Office

Series 06 Review By The Council For Community And Economic Development Of Infrastructure Projects To be Financed Through The Infrastructure Fund; Establishment of

W. Va. Code R. § 145-6-1 General

1.1. Scope and Purpose. -- This procedural rule establishes guidelines to be used by the Council in evaluating any request by a project sponsor for Infrastructure Fund assistance for the planning, design, acquisition, or construction of infrastructure projects and making recommendations for the funding of such projects through the Infrastructure Fund.

1.2. Authority. -- W. Va. Code §5B-2-3.

1.3. Filing Date. -- March 1, 2004.

1.4. Effective Date. -- March 1, 2004.

W. Va. Code R. § 145-6-2 Application and Enforcement

2.1. Application. -- These procedural rules shall apply to the Council, the West Virginia Development Office, and all governmental bodies or persons applying for Infrastructure Fund assistance as made available pursuant to W. Va. Code §31-15A-__ (1995).

2.1.1. These procedural rules or any specific procedural rule may be modified or waived by a two-thirds vote of the Council when said Council deems it necessary and desirable to fulfill the intent of the Act.

2.2. Enforcement. -- The enforcement of this rule shall be vested with the West Virginia Development Office.

W. Va. Code R. § 145-6-3 Definitions

3.1. “Act” means the Infrastructure and Jobs Development Act, W. Va. Code §§31-15A-1 et seq.

3.2. “Cost” means, as applied to any project to be financed in whole or in part with infrastructure revenues or funds otherwise provided pursuant to the Act, the cost of planning, acquisition, improvement and construction of the project; the cost of preliminary design and analysis, surveys, borings; the cost of environmental, financial, market and engineering feasibility studies, assessments, applications, approvals, submissions or clearances; the cost of preparation of plans and specifications and other engineering services; the cost of acquisition of all land, rights-of-way, property rights, easements, franchise rights and any other interests required for the acquisition, repair, improvement or construction of the project; the cost of demolishing or removing any buildings or structures on land so acquired, including the cost of acquiring any lands to which buildings or structures may be moved; the cost of excavation, grading, shaping or treatment of earth, demolishing or removing any buildings or structures; the cost of constructing any buildings or other improvements; the cost of all pumps, tanks, vehicles, apparatus and other machinery, furnishings and equipment; loan or origination fees and all finance charges and interest incurred prior to and during the construction and for no more than six months after completion of construction; the cost of all legal services and expenses; the cost of all plans, specifications, surveys and estimates of cost; all working capital and other expenses necessary or incident to determining the feasibility or practicability of acquiring, repairing, improving or constructing any project; the cost of placing any project in operation; and all other costs and expenses of any kind or nature incurred or to be incurred by the project sponsor developing the project that are reasonable and necessary for carrying out all works and undertakings necessary or incident to the accomplishment of any project: Provided, That costs shall not include any amounts related to the ongoing operations of the owner or operator, depreciation thereof or any other cost which the Council or the Water Development Authority has not determined to be consistent with the purposes and objectives of the Act.

3.3. “Council” means the West Virginia Council for Community and Economic Development.

3.4. “Director” means the executive director of the State Development Office.

3.5. “Economic Development Authority” means the Economic Development Authority or any successor to all or any substantial part of its powers and duties.

3.6. “Governmental agency” means any county; municipality; watershed improvement district; assessment district; soil conservation district; sanitary district; public service district; drainage district; regional governmental authority and any other state governmental agency, entity, political subdivision or public corporation or agency authorized to acquire, construct or operate water or waste water facilities or infrastructure projects.

3.7. “Infrastructure Council” means the West Virginia Infrastructure and Jobs Development Council.

3.8. “Infrastructure Fund” means the West Virginia Infrastructure Fund.

3.9. “Infrastructure project” means a project in the State which the Council determines is likely to foster and enhance economic growth and development in the area of the state in which the project is developed, for commercial, industrial, community improvement or preservation or other proper purposes.

3.10. “Infrastructure revenue” means all amounts appropriated by the Legislature; all amounts deposited into the Infrastructure Fund; any amounts received, directly or indirectly, from any source for the use of all or any part of any project completed pursuant to this article; and any other amounts received by the State Treasurer, the Infrastructure Council or the Water Development Authority.

3.11. “Project sponsor” means any governmental agency or person, or any combination thereof, including, but not limited to, any public utility, which intends to plan, acquire, construct, improve or otherwise develop an infrastructure project.

3.12. “Person” means any individual, corporation, partnership, association, limited liability company or any other form of business organization.

3.13. “State Development Office” means the West Virginia Development Office or any successor to all or any substantial part of its powers and duties.

3.14. “State infrastructure agency” means the Division of Health, Division of Environmental Protection, Housing Development Fund, Public Service Commission, State Development Office, Water Development Authority, Economic Development Authority and any other state agency, division, body, authority, commission, instrumentality or entity which now or in the future receives applications for the funding of, and provides funding or technical assistance to, the planning, acquisition, construction or improvement of a project.

3.15. “Water Development Authority” means the West Virginia Water Development Authority or any successor to all or any substantial part of its powers and duties.

W. Va. Code R. § 145-6-4 Council Review of Projects

4.1. Preliminary Application. Prior to applying for or receiving any loan, loan guarantee, grant or other funding assistance for an infrastructure project from the Infrastructure Fund, the sponsor of an infrastructure project must submit a preliminary application on the Infrastructure Council’s preliminary application form as required by Section 3.1 of Infrastructure Council’s Emergency Rules or any subsequently approved Legislative Rule (Title 167, Series 1, §167-1-3).

4.2. Preliminary Application Review. Upon receipt of a complete preliminary application for an infrastructure project requesting assistance from the Infrastructure Fund, the Development Office shall add the infrastructure project to the agenda for the Council’s next meeting, if the application is received at least twenty (20) business days prior to the Council’s meeting. Copies of each application shall be made available for Council members’ review prior to the regularly scheduled meeting at which the infrastructure project will be considered.

4.3. Preliminary Application Review. Following review of a complete preliminary application for an infrastructure project, the Council shall provide its written recommendation regarding approval and infrastructure project funding.

4.4. Recommendation to Infrastructure Council. The Council shall make a written recommendation for each infrastructure project and, if it approves the infrastructure project, the amount or amounts, and the type and kind of financing from the infrastructure subaccount of the Infrastructure Fund.

4.5. Priorities. The Council shall review and recommend infrastructure projects using the following criteria:

4.5.1. Priority consideration shall be given to infrastructure projects that result in immediate job creation;

4.5.2. Infrastructure projects that do not immediately create jobs but provide the opportunity for economic growth and job creation, i.e., shell buildings, business and industrial parks;

4.5.3. Infrastructure projects that are likely to foster and enhance economic growth and development.

W. Va. Code R. § 145-6-5 Review Guidelines

5.1. Determination of Eligible Projects. When evaluating any request for funding assistance to plan, acquire, construct, improve or otherwise develop an infrastructure project with assistance from the Infrastructure Fund, the Council may consider, where relevant, the following:

5.1.1. The actual number of full time or full time equivalent jobs to be created, the time frame for job creation and the economic impact of jobs created based on wage rates and benefit packages;

5.1.2. To the extent that the proposed infrastructure project would compete with or eliminate existing jobs, the net effect on actual full time equivalent employment of the proposed infrastructure project.

5.1.3. The number of temporary or seasonal jobs provided with respect to the construction aspect of the proposed infrastructure project and the economic impact of such temporary or seasonal jobs based on wage rates and benefit packages.

5.1.4. The proposed schedule for the expenditure of funds to develop the infrastructure project and the ability of the infrastructure project sponsor to meet the proposed time schedule.

5.1.5. Projected impact on the state’s tax base including projections for business and occupation taxes, corporate net income taxes, personal income taxes, consumer sales and service taxes, and real property taxes.

5.1.6. If appropriate, the ability of the sponsor of the infrastructure project to comply with the state worker’s compensation, employment security and other state regulatory requirements.

5.1.7. Degree that private and other public moneys are available and the extent to which they can be leveraged with infrastructure Fund dollars;

5.1.8. The cost effectiveness of the infrastructure project as compared with alternatives which achieve substantially the same economic development benefits;

5.1.9. The availability of alternative sources of funding which could finance all or a part of the infrastructure project, and the need for assistance from the Infrastructure Fund to finance the infrastructure project or attract other sources of funding;

5.1.10. The project sponsor’s ability to operate and maintain the infrastructure project;

5.1.11. The degree to which the infrastructure project achieves State or regional planning goals;

5.1.12. The estimated date upon which the infrastructure project could commence if funding were available and the estimated completion date of the infrastructure project; and

5.1.13. Such other considerations as the Council may consider necessary or appropriate to promote job creation and economic growth.

W. Va. Code R. § 145-6-6 Financial Assistance for Infrastructure Projects

6.1. Financial Assistance. The Council shall recommend that the Infrastructure Council authorize the Water Development Authority to make loans, loan guarantees or grants or other assistance from the Infrastructure Fund upon such terms and conditions as the Council shall recommend.

6.1.1. Unless circumstances warrant otherwise, all loans from the Infrastructure Fund will be made as permanent or take out loans and not as construction financing.

6.2. Grant Assistance. The Council shall not recommend grant assistance from the Infrastructure Fund unless the sponsor of the infrastructure project is a governmental agency or a not-for-profit corporation under the provisions of Section 501(c)(3) of the Internal Revenue Code of 1986, as amended.

6.3. Limit on Loan Amount. Council recommendations for loans from the Infrastructure Fund to a for-profit entity shall not exceed seventy percent (70%) of the total cost of the infrastructure project with a maximum loan of three million dollars per infrastructure project. The maximum governmental, quasi-governmental or not-for-profit loan shall not exceed ninety percent (90%) of the total cost of the infrastructure project with a maximum of three million dollars per infrastructure project.

6.3.1. The Council will not recommend funding from the Infrastructure Fund of more than ten percent (10%) of the non-construction related costs of an infrastructure project. Non-construction costs include but are not limited to preliminary design and analysis, surveys, borings; the cost of environmental, financial, market and engineering feasibility studies, assessments, applications, approvals, submissions or clearances; the cost of preparation of plans and specifications and other engineering services; loan or origination fees and all finance charges and interest incurred prior to and during the construction and for no more than six months after completion of construction; the cost of all legal services and expenses; the cost of all plans, specifications, surveys and estimates of cost; all working capital and other expenses necessary or incident to determining the feasibility or practicability of acquiring, repairing, improving or constructing any project.

6.4. Limit on Loan Interest Rate. The interest rate on any loan to a governmental, quasi-governmental, or not-for-profit project sponsor for an infrastructure project shall not exceed 3% per annum. The interest rate on any loan to a for-profit project sponsor for an infrastructure project shall be no less than market rate. The interest rate will be negotiated on each project.

W. Va. Code R. § 145-6-7 Loan Terms

7.1. The length of each loan will be negotiated for each infrastructure project and will not exceed the useful life of the assets being financed or 20 years, whichever is less. The Council may defer the repayment of principal and interest for up to five years, provided that interest will continue to accrue on the unpaid principal during the deferment period. A prepayment of a loan in full or in part may be made at any time without penalty. The Council shall establish such terms and conditions as it deems necessary and appropriate for each infrastructure project loan.

W. Va. Code R. § 145-6-8 Credit Requirements

8.1. The Council shall base credit decisions on each project sponsor’s ability to repay the loan and the collateral offered to secure the loan.

W. Va. Code R. § 145-6-9 Eligible Activities

9.1. The Council may recommend Infrastructure Fund funding for certain activities including, but not limited to:

9.1.1. Acquisition of land and buildings;

9.1.2. Construction of new facilities;

9.1.3. Construction or installation of all necessary utilities;

9.1.4. Purchase of machinery and equipment related to or necessary for the infrastructure project; and

9.1.5. Improvements to or expansion of existing buildings and sites necessary to enhance the infrastructure project.

W. Va. Code R. § 145-6-10 Ineligible Activities

10.1. The Council shall not recommend Infrastructure Fund financing for the following:

10.1.1. Working capital;

10.1.2. Relocation of a company from one West Virginia location to another, unless for the purpose of expansion due to site limitations;

10.1.3. To refinance existing debt; and

10.1.4. Speculative loans to for-profit sponsor.

145CSR6

145CSR6

Series 07 Neighborhood Investment Program Act

W. Va. Code R. § 145-7-1 General

1.1. Scope. -- These rules implement the Neighborhood Investment Program Act found at W. Va. Code §11-13j-1 et seq.

1.2. Authority. -- W. Va. Code §5B-2-3.

1.3. Filing Date. -- February 26, 2021.

1.4. Effective Date. -- March 29, 2021.

W. Va. Code R. § 145-7-2 Application and Enforcement

2.1. Application. -- These rules shall apply to the West Virginia Development Office, the Neighborhood Investment Program Advisory Board and to all persons submitting applications pursuant to the Neighborhood Investment Program Act.

2.2. Enforcement. -- The enforcement of this rule shall be vested with the executive director of the West Virginia Development Office.

W. Va. Code R. § 145-7-3 Definitions

3.1. Affiliate. -- The terms “affiliate” or “affiliates” include all concerns which are affiliates of each other when either directly or indirectly one concern controls or has the power to control the other or a third party or third parties control or have the power to control both. In determining whether concerns are independently owned and operated and whether or not affiliation exists, consideration shall be given to all appropriate factors, including common ownership, common management and contractual relationships.

3.2. Capacity Building. -- The term “capacity building” means to generally enhance the capacity of the community to achieve improvements and to obtain the community services described in subsections 3.4.a. through 3.4.e. of these rules. Capacity building includes, but is not limited to, improvement of the means or capacity to:

3.2.1. Access, obtain and use private, charitable and governmental assistance programs, administrative assistance, and private, charitable and governmental resources or funds;

3.2.2. Fulfill legal, bureaucratic and administrative requirements and qualifications for accessing assistance, resources or funds; and

3.2.3. Attract and direct political and community attention to needs of the community for the purpose of increasing access to and use of assistance, resources or funds for a given purpose, goal or need.

3.3. Commissioner or tax commissioner. -- The terms “commissioner” and “tax commissioner” are used interchangeably in these rules and mean the tax commissioner of the State of West Virginia or his or her designee.

3.4. Community Services. -- “Community services” means any of the following services provided at no charge whatsoever:

3.4.1. Any type of health, personal finance, psychological or behavioral, religious, legal, marital, educational or housing counseling and advice to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens, or in an economically disadvantaged area;

3.4.2. Emergency assistance or medical care to economically disadvantaged citizens or to a specifically designated group of economically disadvantaged citizens, or in an economically disadvantaged area;

3.4.3. The establishment, maintenance or operation of recreational facilities or housing facilities for economically disadvantaged citizens, a specifically designated group of economically disadvantaged citizens, or in an economically disadvantaged area; 3.4.4 Economic development assistance to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens without regard to whether they are located in an economically disadvantaged area, or to individuals, groups or neighborhood or community organizations in an economically disadvantaged area; or

3.4.5. Community technical assistance and capacity building to economically disadvantaged citizens, a specifically designated group of economically disadvantaged citizens, or to individuals, groups or neighborhood or community organizations in an economically disadvantaged area.

3.5. Compensation. -- The term “compensation” means wages, salaries, commissions and other forms of remuneration paid to employees for personal services.

3.6. Community Based – The project is to be managed locally without national, state, multi-state or international affiliations. The project will benefit local citizens in the immediate geographic area where the project is to operate. The sponsor of the project is a local entity, rather than a statewide national or international organization or an affiliate of a statewide, national or international organization.

3.7. Control. -- The term “control,” with respect to a corporation, means ownership, directly or indirectly, of stock possessing fifty percent or more of the total combined voting power of all classes of the stock of such corporation which entitles its owners to vote. With respect to a trust, “control” means ownership, directly or indirectly, of fifty percent or more of the beneficial interest in the principal or income of such trust. The ownership of stock in a corporation, of a capital or profits interest in a partnership or association or of a beneficial interest in a trust shall be determined in accordance with the rules for constructive ownership of stock provided in Section 276(c), other than paragraph (3) of such section, of the United States Internal Revenue Code, as amended.

3.8. Corporation. -- The term “corporation” means any corporation, joint-stock company or association, or any business conducted by a trustee or trustees wherein interest or ownership is evidenced by a certification of interest or ownership or by some similar written instrument.

3.9. Crime Prevention. -- “Crime prevention” means any activity which aids in the reduction of crime.

3.10. Designee. -- The term “designee” or “his or her designee,” when used in reference to the tax commissioner, means any officer or employee of the Tax Division of the Department of Tax and Revenue duly authorized by the tax commissioner, either directly or indirectly to perform the functions mentioned or described in these rules.

3.11. Development Office. -- The term “Development Office” means the West Virginia Development Office established by W. Va. Code §5B-1-1 et seq.

3.12. Direct needs program. -- The term “direct needs program” means a program, organization or community endowment that serves persons whose annual income is no more that 125% of the federal poverty level with self reliance and independence from government assistance as its primary objective.

3.13. Director or director of the West Virginia Development Office. -- The term “director” or “director of the West Virginia Development Office” means the executive director of the West Virginia Development Office. 3.14 Economically disadvantaged area. -- The term “economically disadvantaged area “ Means any region of the State with a poverty rate greater than the average statewide poverty rate as determined by the US Census Bureau’s most recently published data.

3.15. Economically disadvantaged citizen. -- The term “economically disadvantaged citizen” means a natural person who is a domiciliary and resident of this state that had an annual gross personal income not exceeding one hundred twenty-five percent of the federal designated poverty level for personal incomes during the current taxable year or during the immediately preceding taxable year.

3.16. Education. -- The term “education” means scholastic instruction to, or scholarship by, an individual that enables such individual to prepare for better life opportunities. Education does not include courses in physical training, physical conditioning, physical education, sports training, sports camps and similar training or conditioning courses except for physical therapy prescribed by a physician or other person licensed to prescribe courses of medical treatment under West Virginia law. 3.17 Eligible Contribution. -- An eligible contribution consists of cash, publicly traded common or preferred stock representing ownership in a corporation, tangible personal property valued at its fair market value, real property valued at its fair market value or a contribution of in-kind professional services valued at seventy-five percent of fair market value. For purposes of this definition, the value of in-kind professional services will not qualify as an eligible contribution unless the services are: reasonably priced and valued; reasonably necessary services customarily and normally provided by the contributor in the normal course of business to customers, clients or patients other than those encompassed by the project plan; not reimbursable, in whole or in part, from sources other than the tax credit provided under this article; and are services which are not available without cost elsewhere in the community. Common or preferred stock contributions to a project transferee must be sold by the project transferee within one hundred eighty days of its receipt.

3.17.1. Professional services -- The term “professional services” means only those services provided directly by a state licensed physician, dentist, lawyer, certified public accountant, public accountant, architect, registered nurse, licensed practical nurse, dental hygienist, or other health care professional.

3.17.2. Minimum contribution. -- No contribution of cash, stock, property or professional services or any combination thereof contributed in any tax year by any taxpayer having a fair market value of less than five hundred dollars qualifies as an eligible contribution.

3.17.3. Maximum contribution. -- No portion of a contribution of cash, stock, property or professional services or any combination thereof contributed in any tax year by any taxpayer having a fair Emergency Assistance.

3.17.4. Limitations. -- Not more than twenty-five percent of total eligible contributions to a certified project may be in-kind contributions. Not more than twenty-five percent of total eligible contributions made by any taxpayer to a certified project may be in-kind contributions.

3.18. Eligible Taxpayer. -- The term “eligible taxpayer” means a person subject to the taxes imposed by W. Va. Code §§11-21,23or 24 that makes an eligible contribution to a qualified charitable organization pursuant to the terms of a certified project plan for the purposed of providing neighborhood assistance, community services, or crime prevention, or for the purpose of providing job training or education for individuals not employed by the contributing taxpayer or a person related to the contributing taxpayer. “Eligible taxpayer” also includes an affiliated group of taxpayers if the group elects to file a consolidated corporation or net income tax return and if at least one affiliate in the affiliated group would qualify as an eligible taxpayer as defined in the preceding sentence.

3.19. Emergency Assistance. -- The provision of basic needs including shelter, cloth, food, water, medical attention or supplies, personal safety or funds to obtain these to an individual facing circumstances that prevent him/her from securing these.

3.20. Fair market value. -- The term “fair market value” shall mean:

3.20.1. As it relates to in-kind professional medical services, it shall be the value of the procedure as published in reimbursement guides for medical professionals as published by the West Virginia Public Employees Insurance Agency.

3.20.2. As it relates to in-kind legal, accounting, or architectural services, it shall be the reimbursement rates for attorneys in court-appointed cases in criminal matters as established in W. Va. Code §29-21-13a.

3.20.3. As it relates to tangible personal property, it shall be the Internal Revenue Service definition of a charitable personal property contribution.

3.20.4. As it relates to real property, with the exception of farms receiving farm use valuation and managed timberland, it shall be the fair market value as determined for property tax purposes. The exception categories shall be valued at the property’s current market value.

3.20.5. As it relates to publicly traded common or preferred stock representing ownership in a corporation, it shall be the value of the stock at the average price between the highest and lowest quoted selling prices on the date of transfer to the project transferee.

3.21. Includes and including. -- The terms “includes” and “including,” when used in a definition contained in this article, will not be deemed to exclude other things otherwise within the meaning to the term defined.

3.22. Job training. – The term “job training” means instruction for an individual that enables them to acquire vocational skills that will assist them in becoming employable or enable them to seek a higher grade of employment.

3.23. Natural person or individual. -- The term “natural person” and the term “individual” mean a human being. The terms “natural person” and “individual” do not mean and specifically exclude any corporation, limited liability company, partnership, joint venture, trust organization, association, agency, governmental subdivision, syndicate, affiliate or affiliation, group, unit or any entity other than a human being.

3.24. Neighborhood Assistance. – The term “neighborhood assistance” means either:

3.24.1. The furnishing of financial assistance, labor, material or technical advice that aids in the physical or economic improvement of a part or all of an economically disadvantaged area; or

3.24.2. The furnishing of technical advice that promotes higher employment in an economically disadvantaged area.

3.25. Neighborhood organization -- The term “neighborhood organization”. means an organization that performs community services, as defined in these rules, and is exempt from income taxation under section 501(c)(3) of the Internal Revenue Code.

3.26. Partnership and partner. -- The term “partnership” includes a syndicate, group, pool, joint venture or other unincorporated organization through or by means of which any business, financial operation or venture is carried on, and which is not a trust, estate, corporation or sole proprietorship. The term “partner” includes a member in a syndicate, group, pod, joint venture or organization.

3.27. Person. -- The term “person” includes any natural person, corporation, limited liability company or partnership.

3.28. Project transferee. -- The term “project transferee” means any neighborhood organization, qualified charitable organization or other organization, entity or person that receives an eligible contribution or part of an eligible contribution from an eligible taxpayer for the purpose of directly or indirectly providing neighborhood assistance, community services, or crime prevention, or for the purpose of providing job training, education or other services or assistance pursuant to a project plan. The project transferee is typically the first entity or person receiving eligible contributions from eligible taxpayers under a project plan. However, in the case of eligible contributions of in-kind services or other eligible contributions or portion thereof made pursuant to a certified project plan directly to indigent, disadvantaged or needy persons, economically disadvantaged citizens, or other persons or organizations under the sponsorship or auspices of any neighborhood organization, qualified charitable organization or other organization, entity or person as a certified project participant, the eligible contributions will be deemed to have been made to the entity, organization or person under whose sponsorship or auspices the eligible contributions are made, and that entity, organization or person is deemed to be the project transferee with relation to those eligible contributions. The project transferee is the entity, organization or person that is liable under this article for payment of the project certification fee to the Development Office. The term project transferee means and includes any deemed project transferee under the provisions of these rules.

3.29. Qualified charitable organization. -- The term “qualified charitable organization” means a neighborhood organization, as defined in section 3.25 of these rules, which is the sponsor of a project that has received certification by the director of the Development Office pursuant to the requirements of these rules. No organization may qualify as a qualified organization under these rules if the organization is not registered with the state as required under the solicitation of charitable funds act.

3.30. Related person. -- The term “related person” or “person related to” a stated taxpayer means:

3.30.1. An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by the taxpayer; or

3.30.2. An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or

3.30.3. An individual, corporation, partnership, affiliate, association or trust or any combination or group thereof controlled by an individual, corporation, partnership, affiliate, association or trust or any combination or group thereof that is in control of the taxpayer; or

3.30.4. A member of the same controlled group as the taxpayer.

3.31. State Fiscal Year. – The term “state fiscal year” means a twelve-month period beginning on the first day of July and ending on the thirtieth day of June.

3.32. Taxpayer. -- The term “taxpayer” means any person subject to the taxes imposed by W. Va. Code §§11-21, 23 or 24.

3.33. Technical assistance. -- The term “technical assistance” means assistance in understanding, using and fulfilling the legal, bureaucratic and administrative requirements and qualifications which must be negotiated for the purpose of effectively accessing, obtaining and using private, charitable, not-for-profit or governmental assistance, resources or funds, and maximizing the value thereof. The term “technical assistance” also means assistance provided by any person holding a license under West Virginia law to practice any licensed profession or occupation, whereby such person, in the practice of such profession or occupation, assists economically disadvantaged citizens or the persons in an economically disadvantaged area by:

3.33.1. Providing any type of health, personal finance, psychological or behavioral, religious, legal, marital, educational or housing counseling and advice to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens, or in an economically disadvantaged area.

3.33.2. Providing emergency assistance or medical care to economically disadvantaged citizens or to a specifically designated group of economically disadvantaged citizens, or in an economically disadvantaged area;

3.33.3. Establishing, maintaining or operating recreational facilities or housing facilities for economically disadvantaged citizens, a specifically designated group of economically disadvantaged citizens, or in an economically disadvantaged area;

3.33.4. Providing economic development assistance to economically disadvantaged citizens or a specifically designated group of economically disadvantaged citizens without regard to whether they are located in an economically disadvantaged area, or to individuals, groups or neighborhood or community organizations in an economically disadvantaged area; or

3.33.5. Providing community technical assistance and capacity building to economically disadvantaged citizens, a specifically designated group of economically disadvantaged citizens, or to individuals, groups or neighborhood or community organizations in an economically disadvantaged area.

W. Va. Code R. § 145-7-4 Neighborhood Investment Program Advisory Board

4.1. Composition of the Board. The Neighborhood Investment Program Advisory Board shall consist of thirteen members - the director of the Development Office plus twelve members appointed by the director. The director shall serve as chair but shall not vote unless it is necessary to break a tie. Four board members will be officers or members of boards of directors of unrelated corporations which are currently licensed to do business in West Virginia. Four board members will be executive directors, officers or members of boards of directors of unrelated not-for-profit organizations which currently hold charitable organization status under section 501(c)(3) of the Internal Revenue Code and which are currently licensed to do business in West Virginia. Four board members will be economically disadvantaged citizens of the State. An appointee shall be considered an economically disadvantaged citizen of this State if, in the taxable year immediately preceding appointment to the board, he or she had an annual gross income that is not more than 125 percent of the federal designated poverty level for personal incomes, and who has been domiciled in and a resident of this State for at least one year at the time of his or her appointment. A board member appointed to represent economically disadvantaged citizens may serve out his or her term of original appointment even if his or her income in a subsequent taxable year exceeds 125 percent of the federal designated poverty level. No more than four of the twelve appointed members may be from the same Congressional District and no more than seven of the appointed members may be from the same political party. Members are eligible for reappointment, but no member may serve more than three consecutive terms.

4.2. Terms of Board Members. Except for initial appointments, board members shall be appointed for three years. Appointments shall begin the 1st day of July in the year of appointment and end the 30th day of June of the third calendar year following the calendar year in which the appointment took effect. Initial appointments shall be as follows: Four of the initial appointments shall be for a term of one year, four initial appointments shall be for a term of two years, and four initial appointments shall be for a term of three years. The three categories of board members will be represented in each term class appointed. Appointments to fill unexpired terms shall be for the duration of the term. Members shall be eligible for reappointment, but shall not serve more than three consecutive terms.

4.3. Meetings. The board shall meet at least two times during each fiscal year provided that no meeting of the board shall be required if the total amount of tax credits available for the fiscal year have been allocated. Additional meetings may be held upon the call of the chairperson or by a written request to the chairperson by a majority of the members. Seven members of the board, including the chairperson, shall constitute a quorum for the transaction of business. The board shall elect from among its members a vice chair and a secretary. These officers shall serve two year terms and are eligible for reelection.

4.4. Annual Report. The Board shall submit an annual report to the Governor and to the Legislature within thirty days after the close of each fiscal year beginning with Fiscal Year 1997. The annual report shall include summaries of all meetings of the Board; an analysis of the overall progress of the program; a discussion of fiscal concerns, if any; the relative impact the program is having on the State; and any suggestions and policy recommendations of the Board. Beginning on the fifteenth day of December 2005, and every third year thereafter, the Director of the West Virginia Development Office shall also secure an independent review of the program and present the findings to the Joint Committee on Government and Finance.

4.5. Duties of the Board.

4.5.1. The Board shall select and approve projects which may be certified by the director. Only projects sponsored by a qualified charitable organization may be approved by the Board and certified by the director. An applicant that does not hold current status as a charitable organization under section 501(c)(3) of the Internal Revenue Code may not receive project approval from the Board or project certification from the director for any proposed project. A copy of the applicant’s certification as a 501(c)(3) organization must be submitted with the application.

4.5.2. Board members shall not be prohibited from being involved in fund raising activities of any charitable organization for which they serve as a member of the board or as an officer. If an applicant is directly or indirectly affiliated with one or more board members, those members shall not discuss the proposals with one or more board members and shall not have a vote when that project is considered for final approval or disapproval.

4.6. Criteria for Evaluating Proposed Project Plans. In evaluating projects for approval, the Board shall give priority to projects based upon the following criteria:

4.6.1. Whether the project is community based. A project is community based if it will be managed locally without national, state, multi-state or international affiliations; the project will benefit local citizens in the immediate geographic area where the project is to operate; and the sponsor of the project is a local entity rather than a statewide, national or international organization or an affiliate of a state wide, national or international organization;

4.6.2. The proposed project will primarily serve low income persons;

4.6.3. The proposed project will serve highly stressed neighborhoods or communities;

4.6.4. The project incorporates collaborative partnerships among nonprofit groups, businesses, government organizations and other community organizations;

4.6.5. The applicant or sponsor of the project has demonstrated a proven capacity to deliver the proposed services;

4.6.6. The applicant or sponsor of the project has a history of fundraising activity and historically maintains low administrative costs;

4.6.7. The applicant produces a strong showing of need for the services which the proposed project would provide, and produces convincing documentation of that need; and

4.6.8. The proposed project is innovative, novel, creative or unique in program approach.

4.6.9. The proposed project is a direct needs programmer who will provide emergency assistance.

4.7. Conflict of Interest. If an applicant for project certification is directly or indirectly affiliated with one or more Board members, those members may not discuss and may not vote when the project is considered for final approval or disapproval by the Board.

4.8. Project Approval.

4.8.1. Proposed projects must be approved by majority vote of those members present taken after competitive comparison of projects under consideration. All complete and valid applications received at least ten business days prior to the next regular meeting of the Board must be considered at the next regular meeting and at such continuing meetings of the Board as may be necessary to dispose of its business in a timely manner. At its sole discretion, the Board may consider applications at special or interim meetings.

4.8.2. The Board reserves the right to approve less than the full amount of credits requested by the project transferee in their application. If the amount awarded by the Board is less than the full amount sought by the project transferee, the Board may also approve a supplemental amount of credits to become available on or after March 31 of the state fiscal year if sufficient credits remain unallocated as of that date or if credits have been returned from previously approved projects: Provided, that the project transferee receiving supplemental credit approval shall, on or before March 15 of the state fiscal year, have issued (or have sufficient written documentation to show the clear intent of a donor to contribute) one hundred percent of the credits they were initially awarded. For purposes of project certification by the director in accordance with subsection 4.9.a of these rules, projects approved under 4.8.a and eligible for supplemental credits shall be deemed approved by the Board for receipt of supplemental credits on March 31 of the state fiscal year in which they were considered.

4.8.3. If the Board approves supplemental credits to more than one project transferee, the Board shall competitively rank the projects receiving supplemental credit approval and, if the project transferee has met the requirements of Section 4.8.2., credits available on or after March 31 of the state fiscal year shall be made available by the director of the Development Office in the order projects were competitively ranked by the Board. Credits will be made available by the director until such time as the full amount of available credits has been awarded.

4.8.4. Project transferees may return credits to the Development Office that they do not anticipate using in the state fiscal year in which they were awarded. Project transferees that have issued less than seventy percent of their authorized credits prior to March 15 of the state fiscal year in which they were awarded, and do not have sufficient written documentation to show the clear intent of a donor to contribute, may be directed by the director of the Development Office to return the remainder of the credits previously authorized by the Board.

4.9. Project Certification by Director.

4.9.1. Upon approval of a project by the Board, the project shall be submitted to the director of the Development Office. Within sixty days after the close of any regular meeting of the Board, the director must certify or deny certification of all proposed projects considered by the Board since the preceding regular meeting; provided, however, that the Board may defer consideration of an application for the purpose of obtaining additional information about the project or applicant. If additional information is requested by the Board related to any application, the application shall remain eligible for consideration at the next regularly scheduled meeting of the Board. Applications for which additional information is not requested and which are not certified by the director within the 60-day period are deemed disapproved by operation of law. All applications filed in any state fiscal year and not certified during the fiscal year in which they are filed are null and void on the last day of that fiscal year and a new application for project certification must be filed with the Development Office on or after the 1st day of July of the next fiscal year.

4.9.2. No certification may be issued for any project, even if approved by the Board, if the issuance of certification for the project will cause the aggregate amount of tax credits certified to exceed the limitation of $3 million per state fiscal year. If tax credits are returned by a project transferee pursuant to subsection 4.8.d of these rules, the director may reissue certification for those credits returned. No certification of a project may be issued by the director for any project that was not approved by the Board. The Development Office must promptly notify applicants of the issuance of certification for their project and issue tax credit vouchers to certified project applicants in the amount of the tax credit represented by the project.

4.10. Transferee Reports. Project transferees shall file a quarterly report with the Development Office on the progress of their certified project. The reports shall be filed in a form approved by the director.

4.11. Quarterly Reports. The director shall report quarterly to the Board on the progress of certified projects and on the program generally.

W. Va. Code R. § 145-7-5 Certification of Economically Disadvantaged Areas

5.1. Duration of certification order. Certifications shall last for a period of five calendar years unless a shorter period of time is specified in the certification order issued by the Development Office. An area may be recertified as an economically disadvantaged area, but the total period of time an area is certified may not exceed ten years.

W. Va. Code R. § 145-7-6 Certification of Project Plans

6.1. A neighborhood organization that seeks to sponsor a project and have it certified pursuant to these rules must submit their application to the director of the Development Office on forms approved by the director. The application shall include, but not be limited to, the following information:

6.1.1. A description of the project to be implemented;

6.1.2. The identity of the economically disadvantaged area or areas to be assisted by the project, or the economically disadvantaged citizens to be assisted, or a specifically designated group of economically disadvantaged citizens to be assisted by the project;

6.1.3. The amount of total tax credits requested by the proposed project pursuant to receipt of eligible contributions from eligible taxpayers;

6.1.4. The amount of total estimated eligible contributions to be received under the project plan; and

6.1.5. The schedule for implementing the project.

6.2. The Development Office shall record the time of filing of each application for certification.

6.3. All applications filed with the Development Office are public information, whether the project is certified or denied certification. At the sole discretion of the Development Office, applications may be published.

W. Va. Code R. § 145-7-7 Project Certification Fee

7.1. Project transferees that receives eligible contributions pursuant to a certified project plan must remit to the Development Office a project certification fee equal to 3 percent of the total eligible contributions received pursuant to the certified project plan.

7.2. When the eligible contribution consists of in-kind services or contributions made directly to indigent, disadvantaged or needy persons, economically disadvantaged citizens, or other person or organizations made under the sponsorship or auspices of any neighborhood organization, qualified charitable organization or other organization, entity or person as a certified project participant, the eligible contributions are deemed to have been made to the entity, organization or person under whose sponsorship or auspices the eligible contributions are made, and that entity, organization or person is deemed to be the project transferee with relation to those eligible contributions. The deemed project transferee is liable for payment of the project certification fee.

7.3. The measure of the certification fee shall be the fair market value of the contribution and shall be measured as follows:

7.3.1. When the contribution is cash, the measure of the fee is upon the cash received.

7.3.2. When the contribution is personal or real property, the measure of the fee is the fair market value of the personal or real property as of the day the property is received by the project transferee.

7.3.3. When the contribution is in-kind professional services, the measure of the fee is 75 percent of the fair market value of the professional service provided. In-kind services are not eligible contributions unless the services are otherwise unavailable without charge in the community; they are not reimbursable, in whole or in part, from sources other than the tax credit provided; they are reasonably priced and valued; and they are reasonably necessary services customarily and normally provided by the contributor in the normal course of business to customers, clients or patients other than those encompassed by the certified project plan.

7.3.4. When the contribution is publicly traded common or preferred stock representing ownership in a corporation, the measure of the fee is the value of the stock at the average between the highest and lowest quoted selling prices on the date of transfer to the project transferee.

7.4. When Project Certification Fee is Due and Payable. The project transferee or deemed project transferee shall pay the certification fee to the Development Office within 30 days after receipt of any eligible contribution, or any portion of a contribution which, if given by itself, would constitute an eligible contribution.

W. Va. Code R. § 145-7-8 Sanctions for Failure to Timely Pay Project Certification Fee

8.1. When the project certification fee is not paid within the timeframe identified in section 7.4 above, any or all of the following sanctions may be imposed at the sole discretion of the director of the Development Office:

8.1.1. Interest on the amount due calculated at the rate applicable to underpayment of taxes administered under the West Virginia Tax Procedure and Administration Act.

8.1.2. A penalty equal to 20 percent of the fee and interest due.

8.1.3. Prospective revocation of project certification. If project certification is revoked, any credit previously taken by any taxpayer with respect to the taxpayer’s eligible contribution prior to the effective date of the revocation is not subject to recapture. However, the credit is subject to audit and adjustment or recapture by the Tax Commissioner in the same manner as other tax credits.

8.1.4. Retroactive withdrawal of project certification. If project certification is revoked retroactively, no credit is allowed with respect to the project and any credit taken by any taxpayer with respect to an eligible contribution made prior to the revocation is subject to recapture.

8.1.5. Suspension of project certification for a stated period of time. If project certification is suspended, no tax credit shall be allowed for contributions made during the suspension period. A credit may be taken by any taxpayer for eligible contributions made to a project transferee prior to or subsequent to the suspension period. Any credit taken is subject to audit and adjustment or recapture by the Tax Commissioner in the same manner as other tax credits.

8.1.6. Temporary or permanent disqualification of one or more project transferees, neighborhood assistance organizations or other organizations, entities or persons from participating in a particular certified project. If a temporary or permanent suspension is imposed, no tax credit shall be allowed for any contribution made during the suspension period to any project transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person disqualified from participating in a certified project. Any tax credit taken by a taxpayer through the making of an eligible contribution to a project transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person pursuant to a certified project plan prior to or subsequent to the disqualification period is not subject to recapture. These credits are subject to audit and adjustment or recapture by the Tax Commissioner in the same manner as other tax credits.

8.1.7. Temporary or permanent disqualification of the project transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person, or group thereof, from participation in any and all certified projects currently in existence or to be formed, proposed or certified under these rules. No tax credit shall be allowed for any contribution made during the disqualification period to any project transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person disqualified pursuant to these rules. Tax credits received by an eligible taxpayer made prior to or subsequent to the disqualification period is not subject to recapture by reason of the disqualification. The credits remain subject to audit and adjustment or recapture by the tax commissioner in the same manner as other tax credits. No certification may be issued during the disqualification period for any proposed project in which a project transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person disqualified pursuant to these rules as a proposed project participant.

8.1.8. These sanctions may be adjusted, withdrawn or waived, in whole or in part, at the sole discretion of the director of the Development Office. The certification fee shall not be waived by the director.

W. Va. Code R. § 145-7-9 Administration and Collection of Project Certification Fees

9.1. Audits. The West Virginia Development Office or the Department of Tax and Revenue, or both, may initiate and carry out investigations or audits of a recipient of an eligible contribution, an eligible taxpayer, or a project transferee to determine whether the project certification fee imposed by this Act has been paid in accordance with the requirements of this Act.

9.2. Notice and Demand for Payment. When a project certification fee is not timely paid, the director of the Development Office may issue a written demand for payment of the fee, plus interest, to the project transferee. This notice must be delivered by certified mail or by personal service. A penalty for failure to timely pay the project certification fee may also be imposed. The penalty may not exceed twenty percent of the project certification fee and interest due and may be imposed, adjusted, withdrawn or waived, in whole or in part, at the sole discretion of the director of the Development Office. Payment of the project certification fee and interest due are not subject to waiver. The notice and demand for payment shall notify the project transferee of the opportunity to show that the project certification fee is not due and owing.

9.3. Notice of Pending Sanctions. When the project transferee fails to pay the amount due, as stated in the written notice and demand for payment, within 30 days after service of such notice and demand, and the project transferee fails to provide to the satisfaction of the director proof that the fee is not due and owing, the director shall serve upon the project transferee a notice of pending sanctions. If the project transferee is not the applicant for the project certification, an informational copy of the notice of pending sanctions shall also be served upon the applicant for the project certification. Notice of pending sanctions shall be served on the project transferee in the same manner as an assessment of tax is served under the West Virginia Tax Procedures and Administration Act. The notice of pending sanctions shall state the sanctions to be applied, the effective date of the sanctions, with specific statements regarding whether the sanction will be applied retroactively, in whole or in part, and the commencement and termination dates for any suspension of certification or temporary disqualification of any project transferee, neighborhood organization, qualified charitable organization, charitable organization or other organization, entity or person to be disqualified from participating in a certified project. The notice of pending sanctions shall state that sanctions will be imposed 60 days after service of the notice of proposed sanctions upon the delinquent project transferee, unless the amount due and owing, plus interest and penalties, is paid in full.

9.4. Appeals. The project transferee may appeal a notice of proposed sanctions as if the notice were a notice of assessment of tax under the West Virginia Tax Procedure and Administration Act [W. Va. Code §11-10-1, et seq.], and the matter or appeal is subject to the procedures set forth in the Tax Procedures Act. The burden of proof is on the project transferee to prove that the project certification fee and associated interest and penalties are not due and owing. The review on appeal is limited to the following:

9.4.1. The issue of whether a failure to timely pay the project certification fee or any portion thereof has occurred, the time period or periods over which the failure occurred, and whether the failure continues to occur;

9.4.2. The amount of the project certification fee and interest due; and

9.4.3. The mathematical and methodological accuracy of the computation of the project certification fee, interest and penalties.

9.5. Confidentiality. No information, document, or proceeding brought, relating to the liability of any project transferee for the project certification fee, interest or penalties, is subject to the confidentiality provisions of the West Virginia Tax Procedure and Administration Act or any other confidentiality provision of the West Virginia Code. However, any proceeding relating to any amount of tax due or the recapture of tax credits taken under this Act or any adjustment of the amount of credit taken is subject to the confidentiality rules in the Tax Procedures Act and to all other applicable statutory tax confidentiality provisions of the West Virginia Code.

9.6. Finality of Notice of Pending Sanctions. The notice of pending sanctions becomes final 60 days after it is served upon the project transferee unless an appeal is filed within that period. When a determination that a project transferee has failed to timely pay the project certification fee, or any part thereof, becomes final, the sanctions described in the notice of pending sanctions shall apply as of the date set forth in the notice of pending sanctions, unless the amount due, including interest and penalties, is paid within 30 days after the date on which the determination becomes final. Sanctions for failure to timely pay the project certification fee may be imposed, adjusted, withdrawn or waived, in whole or in part, at the sole discretion of the director of the Development Office.

W. Va. Code R. § 145-7-10 Tax Credit Allowed

10.1. Who May Claim Credit. Eligible taxpayers that make eligible contributions pursuant to a certified project plan may receive a tax credit.

10.2. Amount of credit allowed. The amount of credit allowed is fifty percent of the taxpayers’ eligible contribution. The minimum eligible contribution of a taxpayer shall be five hundred dollars ($500.00). No contribution of cash, property or professional services or any combination thereof contributed in any tax year by any taxpayer having a fair market value of less than five hundred dollars qualifies as an eligible contribution. The maximum eligible contribution by a taxpayer shall be two hundred thousand dollars ($200,000.00). No contribution of cash, property or professional services or any combination thereof contributed in any tax year by any taxpayer having a fair market value in excess of two hundred thousand dollars qualifies as an eligible contribution.

10.2.1. Not more than twenty-five percent of total eligible contributions to a certified project may be in-kind contributions of professional services. Not more than twenty-five percent of total eligible contributions made by any taxpayer to any certified project may be in-kind contributions of professional services.

10.2.2. No tax credit shall be given prior to the making of an eligible contribution.

10.3. Tax credits are allowable only for the tax year of the eligible taxpayer in which the eligible contribution is irrevocably transferred to the project transferee, and for the next succeeding four years.

10.4. No tax credit shall be given for any contribution which, if the credit was allowed, the allowance would cause the amount of tax credit generated by the certified project to exceed the maximum amount of tax credit for which the project was certified.

10.5. Application of Tax Credit. The amount of credit allowable under this program must be taken within a five-year period beginning with the tax year in which the taxpayer irrevocably transfers its eligible contribution to the project plan transferee. The total credit any eligible taxpayer can claim shall not exceed $100,000 in any tax year of the eligible taxpayer.

10.6. Claiming of Credit on Tax Returns. If the eligible taxpayer is a sole proprietorship, the credit allowed is applied to reduce the sole proprietor’s personal income tax liability by up to fifty percent for the tax year. The application of remaining credit will be as follows:

10.6.1. If the eligible taxpayer is a C corporation, the remaining credit may be applied to reduce its corporation net income tax liability by up to fifty percent and is determined before application of other allowable credits against this tax.

10.6.2. If the eligible taxpayer is an electing small business corporation (S corporation) or a partnership for federal income tax purposes, any unused credit may be applied by the shareholders of the S corporation, the partners in the partnership, or members of the limited liability company treated as a partnership, to reduce their liability for West Virginia personal income taxes by up to fifty percent. S corporations, partnerships and other unincorporated organizations may allocate the remaining credit among its shareholders, partners or members in the same manner as profits and losses are allocated for the tax year. Any taxpayer subject to the personal income tax under Chapter 11, Article 21 of the West Virginia Code, who makes an eligible contribution to a qualified charitable organization, and receives back from that organization a properly completed Neighborhood Investment Program voucher, is eligible to claim the credit. The credit shall be allowed against the personal income tax liability imposed under Chapter 11, Article 21 of the West Virginia Code without regard to the source of that income, whether it is from wages, passive investment income, income from a trade or business or any other source.

10.7. Forfeiture of Unused Credit. Credits not used in the year the taxpayer irrevocably transfers its eligible contribution to the project transferee or the succeeding four years may not be carried forward and therefore are forfeited. Credits may not be carried back to a tax year prior to the tax year in which the eligible contribution was made.

10.8. Publication of Who Takes Tax Credit. Annually, the tax commissioner shall publish in the State Register the name of every taxpayer claiming a neighborhood assistance credit on a tax return, as well as the amount of credit asserted by each taxpayer. The confidentiality provisions of W. Va. Code §§11-1-4a, 11-10-5d or any other section do not apply to this information.

W. Va. Code R. § 145-7-11 Assertion of Credit Against Tax

11.1. Annual Credit Reporting Schedule. An eligible taxpayer which desires to claim a neighborhood assistance tax credit must file with the tax commissioner, in such form as the commissioner prescribes, an annual tax credit reporting schedule stating the amount of eligible contribution which the taxpayer has made. The taxpayer must attach to this form the certificate issued by the director of the Development Office evidencing approval of the project plan pursuant to which the contribution was made. The taxpayer shall attach to the report proof of payment of the eligible contribution to the transferee designated in the certified plan solely for the certified project. The taxpayer shall provide all information required by the tax commissioner’s prescribed form. The schedule shall be filed with the annual corporation net income tax return for the tax year in which the eligible contribution is first irrevocably transferred to a transferee pursuant to a certified project plan, except:

11.1.1. If the eligible taxpayer is not required to file a corporation net income tax return, then the tax credit reporting schedule shall be filed with the annual personal income tax return filed for the tax year in which the eligible contribution is first irrevocably transferred to a project transferee pursuant to a certified project plan.

11.2. Disallowance of Credit. The tax commissioner may disallow any credit claimed pursuant to these rules and the Act when a properly completed tax credit reporting schedule or a properly completed and valid statement or proof of payment of the eligible contribution, or other required documentation, statements or proofs, are not timely filed.

11.3. Maximum Credit. The maximum amount of tax credits allowed under the Act may not exceed $3 million in any state fiscal year. When the total amount of tax credits certified in a given fiscal year equals $3 million, no further certifications may be issued during that fiscal year. Applications for project certification may be filed with the Development Office by June 30 of each fiscal year.

W. Va. Code R. § 145-7-12 Adjustment of West Virginia Taxable Income

12.1. Any deduction, decreasing adjustment or decreasing modification taken by a taxpayer in determining federal taxable income which affects the determination of West Virginia taxable income under the personal or corporation net income tax laws of West Virginia for a charitable contribution in the taxable year, or payment or portion thereof, which qualified as an eligible contribution under these rules and for which credit is claimed, must be added to West Virginia taxable income when determining West Virginia personal or corporation net income tax liability, as appropriate for the taxable year.

W. Va. Code R. § 145-7-13 Credit Recapture

13.1. If it appears on audit or pursuant to other information that an eligible taxpayer has not made a contribution as represented, or if it appears that contributions made by an eligible taxpayer were made to the direct or indirect benefit of the eligible taxpayer making the contribution, the credit previously allowed shall be recaptured, and amended returns must be filed for any tax year in which the credit was taken. Any additional taxes shown due on the amended return or returns must be remitted to the tax commissioner when the amended return or returns are filed, along with statutory interest and a ten percent penalty, which may be waived by the tax commissioner if the taxpayer shows that the over claimed amount was due to reasonable cause and not due to willful neglect, and such other penalties and additions to tax as may be applicable under the West Virginia Tax Procedure and Administration Act. When a neighborhood assistance tax credit is taken on a tax return, the period of time in which the tax commissioner may issue a deficiency assessment is five years from the date the tax return was filed, or five years from the date of payment of any tax liability calculated pursuant to the assertion of the neighborhood assistance credit, whichever is later.

W. Va. Code R. § 145-7-14 Audits

14.1. In addition to, or instead of discretionary audits of eligible taxpayers which may be made by the tax commissioner, the tax commissioner may, in his or her discretion, conduct a joint audit in concert with the Development Office of the books and records and other information of any taxpayer, or of any person, organization or entity which has filed an application for certification of a project plan with the Development Office, or which asserted a neighborhood assistance credit on a tax return filed with the tax commissioner, or of any other person, organization or entity believed to have relevant information. For purposes of joint audits, or any administrative or judicial proceeding or procedure relating to any neighborhood assistance tax credit taken, asserted or sought, the tax commissioner may share such information as he or she may deem appropriate with the Development Office.

W. Va. Code R. § 145-7-15 Preservation of Credit

15.1. Taxpayers which have gained entitlement to a neighborhood assistance credit for eligible contributions made to certified projects prior to July 1, 2021, shall retain that entitlement and apply the credit as outlined in these rules even if the neighborhood assistance credit program shall expire and no longer be in effect after that date.

145CSR7

145CSR7

Series 08 Community Development Assessment And Real Property Valuation Procedures For Office Of Coalfield Development

W. Va. Code R. § 145-8-1 General

1.1. Scope. -- This rule establishes the procedure for the creation of community impact statements by operators, the process to develop coalfield community development procedures which include asset development goals and infrastructure needs, the criteria for the development of a master land use plan by local, county regional development or redevelopment authorities, and the procedure for establishing the value of property to assist property owners who desire to voluntarily sell their property to an operator.

1.2. Authority. -- W. Va. Code §5B-2A-12.

1.3. Filing Date. -- March 7 2003.

1.4. Effective Date. -- April 3 2003.

W. Va. Code R. § 145-8-2 Definitions

As used in this rule, unless used in a context that clearly requires a different meaning, the term

2.1. Director -- shall mean the director of the office of Coalfield Development.

2.2. Code -- shall mean the code of the State of West Virginia of 1931, as amended.

2.3. Community Development Procedures --shall mean that the Office of Coalfield Community Development will incorporate and transfer community impact statement data with county governments and or economic development authorities as outlined by Section 5 of this rule.

2.4. Community Impact Statement -- shall mean the written statement containing all of the information required by section 4 of this rule that is filed by the operator with the office.

2.5. Department -- shall mean the West Virginia Department of Environmental Protection established in W. Va. Code §22-1-1 et seq.

2.6. Development Authority -- shall mean the appropriate state, local, county or regional development or redevelopment authority.

2.7. Development Office -- shall mean the West Virginia Development Office established in W. Va. Code §5B-2-1 et seq.

2.8. Infrastructure Component Standards -- shall mean those standards developed by a development authority which are to be applied to the infrastructure needs as determined by the development authority and as included in a master land use plan to ensure proper implementation of the plan. The standards shall be specific to each plan.

2.9. Office -- shall mean the Office of Coalfield Community Development established in W. Va. Code §5B-2A-1 et seq.

2.10. Operator -- shall mean any individual, partnership, firm, society, association, trust, corporation or other business entity which applies for, which is granted or which obtains a permit to engage in surface mining and reclamation operations.

2.11. Master Land Use Plan -- shall mean a plan which addresses current and prospective uses for land which in whole or in part is or has been covered by a surface mining permit and which contains all the information required by section 6 of this rule.

2.12. Permit -- shall mean a permit to conduct surface mining operations issued pursuant to W. Va. Code §22-3-8.

2.13. Plan -- shall mean a master land use plan as defined in subsection 2.11 of this rule.

2.14. Reclamation Plan -- shall mean the reclamation plan established in W. Va. Code § 22-3-10.

2.15. Surface Mining Operations -- shall mean activities conducted on the surface of lands for the removal of coal where such activities disturb the natural land surface. Surface mining operations do not include any of the following:

2.15.a. Coal extraction authorized pursuant to a government-financed reclamation contract;

2.15.b. Coal extraction authorized as an incidental part of development of land for commercial, residential, industrial or civic use; or

2.15.c. The reclamation of an abandoned or forfeited mine by a no cost reclamation contract.

W. Va. Code R. § 145-8-3 Exempted Operations

3.1. The provisions of this rule shall apply to all surface mining operations, except:

3.1.a. Surface operations and surface impacts incident to an underground coal mine; and

3.1.b. Surface mining operations of operators that: (1) establish that their probable total annual coal production from all locations during any consecutive twelve-month period, either during the term of the permit or during the first five years after issuance of the permit, whichever period is shorter, will not exceed 300,000 tons, as determined pursuant to rules promulgated by the department, and (2) otherwise meet all criteria for the small operator assistance program authorized under the federal Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201 et seq., as amended.

3.2. The provisions of this rule shall not apply to: (1) underground coal mining operators or (2) the extraction of minerals by underground mining methods or the surface impacts thereof.

3.3. Any operator claiming an exemption from the requirements of this rule shall file a statement with the office setting forth the name and address of the operator, the amount and location of the land to be mined or used in the surface mining operations, the expected duration of the surface mining operations, and the basis for the exemption claimed. The statement shall be executed by an acknowledged signature of an officer, member, partner or other duly authorized agent of the operator.

W. Va. Code R. § 145-8-4 Community Impact Statement

4.1. An operator shall develop and file a community impact statement, as described in subsection 4.3 of this rule, with the office no more than 60 days after filing an application for a permit with the department.

4.2. For permits granted after June 11, 1999, a community impact statement shall also be filed by the operator within 90 days after the permit application is deemed by the department to be administratively complete, and within 90 days after the first five year incremental renewal date for all permits issued prior to June 11, 1999.

4.3. A community impact statement, where practicable, shall be written in a clear and concise manner understandable to all citizens. The community impact statement shall include the following:

4.3.a. The amount and location of land to be mined or used in the actual surface mining operations, the permit numbers for all mining, surface, national pollutant discharge elimination system or other permits relating to such surface mining operations, the latitude and longitude coordinates of the approximate center of the proposed area to be permitted, and the magisterial districts and other related information requested by the office.

4.3.b. The expected duration of the surface mining operations in each area of the community.

4.3.c. The extent of anticipated mining-related property acquisitions by the operator and any other property owners, including the names and addresses of the owners of all surface, mineral and other interests in property to be acquired related to the surface mining operations for which the permit application was filed, to the extent that such property acquisitions are known or capable of being known.

4.3.d. The names and addresses of the owners of all surface, mineral and other interests in property to be mined pursuant to the permit and located within 1,000 feet of the permitted area or areas for surface mining operations.

4.3.e. The intentions of property owners, other than the operator, relative to the surface, mineral and other property intended to be acquired for the anticipated surface mining operations, to the extent that such intentions are known or capable of being known.

4.3.f. A statement of the postmining land use and approximate postmining contour for all land within the permit boundary.

4.3.g. The intended blasting plan for the surface mining operations anticipated under the permit and the expected time and duration that the anticipated blasting shall affect each community.

4.3.h. Information concerning the extent and nature of valley fills anticipated to be located within the surface mining operations and the watersheds to be affected by these valley fills.

4.3.i. Economic information about the anticipated surface mining operations, including, without limitation, the estimated number of jobs created, the estimated proportion of mine employees who will be residents of West Virginia, the estimated annual mine payroll, the estimated annual coal production, the anticipated mine life, and such other economic information as may be requested by the office.

4.3.j. The location of and distance from the mine site to the nearest existing gas, electric, water, sewer and other utilities, the location of and distance from the mine site to the closest paved public roadway, and the gas, electric, water, sewer and other utility infrastructure anticipated to be extended to the mine site.

4.3.k. The identification of public bridges, parks and recreation areas, roads, schools, utility lines, water supplies or other public facilities that may be acquired, relocated or removed by the anticipated surface mining operations. The operator shall identify the public roads over which coal mined from the proposed surface mining operation shall be transported after leaving the permitted area, the estimated number of truckloads of coal or refuse materials to be transported daily on these roads, the estimated truck schedule of this transportation activity, and any rerouting of traffic anticipated to be caused by this transportation activity.

4.3.l. Maps of the area within 1,000 feet from the permit or proposed permit area prepared from United States Geological Survey topographic maps, or maps determined to be as accurate by the office, on 7.5 minute quadrangle depicting permit boundaries, property boundaries, property ownership interests, structures, roads, and other information required to be filed with the community impact statement. Such maps shall have a preferred scale of 500 feet to one inch and shall be submitted on print paper 30 inches by 42 inches or less. If supplementary maps or plans are attached, match lines shall be used.

4.4. Simultaneously with its filing in the office, the operator shall also provide copies of the community impact statement to the department’s division of mining and reclamation and office of explosives and blasting, the county commissions, the office of the clerk of the county commissions, the regional planning and development councils, the county economic development authorities, and public libraries in those areas to be affected by the surface mining operations.

4.5. Where the operator makes any significant revision to the permit application under 38 CSR § 2-3.28, which revision substantially affects any of the information provided in the community impact statement previously filed with the office, the operator shall revise those portions of the community impact statement affected and shall submit these revisions to the office and each of the entities identified in subsection 4.4 of this rule within 60 days after filing the request for significant revision with the department.

4.6. The failure to file a community impact statement with the office shall be a violation under W. Va. Code §22-3-17.

W. Va. Code R. § 145-8-5 Coalfield Community Development Procedures

5.1. The office shall coordinate and share information outlined in the community impact statement with the county development authority when an operator applies for any permit with the department.

5.2. Within 30 days after the community impact statement from the operator applying for the permit is filed with the office, the operator shall distribute notice that property is intended to be mined by the operator applying for the permit to the following:

5.2.a. State and local government agencies such as county commissions, city or town governments in affected communities, regional planning and development councils, and county economic development authorities having jurisdiction over the affected communities, all by certified mail.

5.3. Within 30 days after the community impact statement from the operator applying for the permit is filed with the office, the operator shall notify individuals and business owners and operators in affected communities of the proposed mining activity.

5.3.a. This notification from the operator shall be by a class I legal advertisement as provided in W. Va. Code §59-3-2, which shall contain a map identifying the location of the proposed surface mining operations.

5.3.b. After this notification has been published, the operator shall file the publication certification for the class I legal advertisement with the office.

5.4. A notice provided by the operator to affected persons and entities about coalfield community development shall contain the following information:

5.4.a. The name of the permit applicant and the location of the intended surface mining operations;

5.4.b. The locations in the affected communities where the community impact statement has been filed by the operator for inspection;

5.4.c. The expected duration of the surface mining operations in each area of the community;

5.4.d. The notice shall inform its recipients that the office invites persons and entities in areas affected by the anticipated surface mining operations to submit written comments and other documentation to the chief within 30 days after the date of the notice about how their communities are anticipated to be affected by the planned surface mining operations and the intended postmining land use; and

5.4.e. The notice shall inform its recipients that the community impact statements for the planned surface mining operations were filed within 180 days from the date of the notice, and that persons and entities in the affected communities shall have 30 days after the date to submit written comments to the director.

5.5. After the close of the public comment period, the office will deliver public comments to the development authority and assist in the incorporating of the community impact statement into the land use master plan.

5.6. The office shall coordinate and transfer information, findings and recommendations to development authorities in the county affected.

5.6.a. An evaluation of the future of the affected communities once mining operations are completed.

5.6.b. The identification of community assets that may be developed by the affected community, county or region to foster its viability when surface mining operations are completed which may include the following:

5.6.b.1. Water and wastewater services;

5.6.b.2. Developable land for housing, commercial development or other community purposes;

5.6.b.3. Recreation facilities and opportunities; and

5.6.b.4. Education facilities and opportunities.

5.6.c. In determining the nature and extent of the needed community assets, the office shall consider at least the following:

5.6.c.1. An evaluation of the future of the community once surface mining operations are completed as required to be determined in the coalfield community development statement;

5.6.c.2. The prospects for the long-term viability of any asset developed under this subsection 5.6.c;

5.6.c.3. The desirability of foregoing some or all of the asset development required by this subsection 5.6.c in lieu of the requirements of subsection 5.6.e of this rule;

5.6.c.4. The determinations made during the development of the coalfield community development procedures of the impacts of the mining operations on the community; and

5.6.c.5. The extent to which the community, local, state or federal government may participate in the development of assets the community needs to assure its viability.

5.6.d. As part of the coalfield community development procedures, the office shall recommend the land and infrastructure needs in the county or counties in which the surface mining operations are being conducted, or any adjacent county.

5.6.e. In making a determination of the land and infrastructure needs in the general area of the surface mining operations, the office shall consider at least the following:

5.6.e.1. The availability of developable land in the general area;

5.6.e.2. The needs of the general area for developable land;

5.6.e.3. The availability of infrastructure, including, but not limited to, access roads, water service, wastewater service and other utilities;

5.6.e.4. The amount of land to be mined and the amount of valley to be filled by the surface mining operation;

5.6.e.5. The amount, nature and cost to develop and maintain the community assets identified in subsection 5.6.b of this rule; and

5.6.e.6. The availability of federal, state and local grants and low-interest loans to finance all or a portion of the acquisition and construction of the identified land and infrastructure needs of the general area.

5.6.f. In making a determination of the land and infrastructure needs in the general area of the surface mining operations, the office shall give significant weight to developable land on or near existing or planned multi-lane highways.

5.7. When the office receives community impact statements that affect communities that are included within existing community development statements, the office shall determine whether the surface mining activities anticipated by the additional community impact statements require modification. In the event that the office determines no modification is required, the office and operator shall issue a notice pursuant to subsections 5.2 and 5.3 containing the information required by subsections 5.3.a - c and disclose the intention of the office not to further amend or modify the existing community impact statement. When the office concludes that the anticipated surface mining operations require an amendment to or modification of an existing community development statement, then the office and operator shall use the notice and public comment provisions contained in subsections 5.4.a - e and 5.5 of this rule

5.8. The office shall prepare an annual status update of this action report which shall describe accomplishments and prospects for continued economic development.

W. Va. Code R. § 145-8-6 Master Land Use Plans

6.1. A master land use plan may be prepared by a development authority. If requested by a development authority, the office may assist in the preparation of a master land use plan.

6.2. A development authority must determine land and infrastructure needs within its jurisdiction as necessary in conjunction with its preparation of a master land use plan.

6.2.a. In making a determination of the land and infrastructure needs in its jurisdiction, the development authority shall evaluate at least the considerations set forth in subsection 5.6.e. of this rule. A development authority may satisfy this requirement by incorporating all or part of the determination of land and infrastructure needs of an area reflected in a community development statement prepared in accordance with section 5 of this rule.

6.3. For any infrastructure needs identified by the development authority, consistent with the current and prospective uses described in the master land use plan, infrastructure component standards shall also be developed.

6.3.a. The infrastructure component standards developed by a development authority shall be approved by the appropriate county commission or commissions before such standards can be included in a master land use plan.

6.3.b. Before approving the infrastructure component standards, the county commission or commissions shall give notice to the public and provide a 30-day comment period.

6.4. Once a master land use plan has been prepared, the office shall review the plan. This review shall include an evaluation of the plan’s impact on the development of economic and community assets and conformance with this rule.

6.5. A master land use plan shall be sufficiently complete to indicate its relationship to definite objectives of the development authority as to appropriate land uses and shall include at least the following:

6.5.a. The boundary of the area encompassed by the plan with a map showing the existing uses and conditions of the real property and any infrastructure components therein;

6.5.b. A land use plan showing the proposed uses of the area;

6.5.c. A statement of the proposed changes, if any, in zoning ordinances or maps, street and highway layouts, building codes and ordinances;

6.5.d. A site plan of the area;

6.5.e. A statement as to the kinds and number of additional public facilities or utilities which will be required to support the new land uses in the area after development;

6.5.f. A statement of the land and infrastructure needs as determined pursuant to subsection 6.2 of this rule which shall include a statement of infrastructure component standards; and

6.5.g. Any community impact statements and/or community development statements which may have been prepared and which effect any property within the boundaries of the master land use plan.

6.6. An operator may include, in a surface mining permit application, a master land use plan which addresses postmining land uses in the reclamation plan developed pursuant to W. Va. Code §22-3-10. An operator may amend a reclamation plan approved but not implemented or a reclamation plan pending approval by including a master land use plan.

6.6.a. Any modifications in the postmining land use during mining must be made in accordance with 38 CSR §§ 2-7.3.a. and 3.28.

6.7. The master land use plan must be approved by the department as part of the operator’s reclamation plan before the master land use plan may be implemented.

W. Va. Code R. § 145-8-7 Land Acquisitions

7.1. After a community impact statement is filed by an operator as provided in section 3 of these rules, the office shall give notice to the property owner at the address identified by the community impact statement that the owner’s property has been identified for purchase by the operator and the name and address of the proposed purchaser, but the office shall provide no other assistance unless requested by the potential property seller.

7.2. The office shall assist property owners so notified and other property owners who desire to sell their property voluntarily to an operator which has applied for a permit or any person, firm or corporation directly or indirectly affiliated with such operator, provided that all of the following conditions are met:

7.2.a. The operator or any person, firm or corporation directly or indirectly affiliated with the operator makes an offer, in writing, to purchase the property stating all the terms and conditions of the proposed purchase;

7.2.b. The property to be purchased is located within 1,000 feet of property which actually is or will be mined by the operator;

7.2.c. The structures are actually being used for commercial purposes or are occupied residences situate on the property to be purchased; and

7.2.d. The potential seller or group of sellers requesting assistance from the office own all of the property proposed to be purchased, and no undivided interests in the property exist that are opposed to the valuation procedure.

7.3. If requested by a potential seller qualifying under subsection 7.2 of this rule, the office shall only provide assistance if it determines that the value of the property is diminished by the proposed surface mining operations and that the offer made by the operator is less than the value the property would have had prior to any diminution of value.

7.4. If the office determines that the value of the property is diminished and that the offer made by the operator or its affiliate is less than the value the property would have had prior to any diminution of value, then the office shall cause the value of the property prior to any diminution to be established by a qualified and disinterested appraiser and shall certify this value to the potential property seller and the operator.

7.5. Either party shall have 30 days after their receipt of the certification of value by the office to request a reconsideration of this valuation based upon written documentation submitted to the office within such 30-day period.

7.6. Within 30 days after its receipt of a request for reconsideration, the office shall review all documentation provided, and if the office determines that good cause has been shown for an adjustment to the previously certified value of the property, then the office shall provide the parties with certification of the adjusted value which shall be a final determination and not subject to further challenge by the parties.

145CSR8

145CSR8

Series 09 Workforce Development Initiative Program

W. Va. Code R. § 145-9-1 General

1.1. Scope. -- Implementation of the Workforce Development Initiative Program.

1.2. Authority. -- W. Va. Code §§18B-3D-1 et seq.

1.3. Filing Date. -- April 4, 2002.

1.4. Effective Date. -- April 4, 2002.

W. Va. Code R. § 145-9-2 Purpose

2.1. This rule establishes guidelines and procedures for administration and oversight of the Workforce Development Initiative Program by the Council for Community and Economic Development (“Council”), with assistance from an advisory committee, to achieve the following statements of legislative intent:

2.1.1. Competitively awarding funds to promote the mission of community and technical colleges as set forth in W. Va. Code §18B-3-3a.

2.1.2. Providing limited seed money to address specific areas where improvement is needed, including:

2.1.2.1. Improving employer awareness and access to services available through the state’s education institutions;

2.1.2.2. Providing designated professionals and resources to support workforce education through the state’s educational institutions;

2.1.2.3. Increasing the capacity of the state’s education institutions to respond rapidly to employer needs for workforce education and training on an on-going basis through the development of a client-focused, visible point of contact for program development, delivery, service referral and needs assessment, such as a workforce development center; and

2.1.2.4. Maximizing the use of available resources for workforce education and training through partnerships with public vocational, technical and adult education centers and private training providers.

2.1.3. Providing partnering and grant award opportunities to small businesses on an equal basis with larger businesses.

2.1.4. Awarding seed money to assist providers in becoming self-sustaining through partnerships with business and industry, including cost-sharing initiatives and fee for service arrangements.

2.1.5. Awarding funds competitively among applicants who meet all criteria established in the statute, these rules, and as may be specified from time to time by the Council.

W. Va. Code R. § 145-9-3 Role of Council for Community and Economic Development

3.1. The Council for Community and Economic Development will administer and oversee the Workforce Development Initiative by:

3.1.1. Administering the Community College Workforce Development Fund;

3.1.2. Establishing criteria for grant applications;

3.1.3. Receiving, reviewing and selecting applications for funding;

3.1.4. Approving the expenditure of all grant funds; and

3.1.5. Evaluating the performance of workforce development initiatives and annually reviewing initiatives for grant renewal.

3.2. To aid in decision-making, the Council shall appoint an advisory committee consisting of a maximum of nine members that include, at a minimum, the Vice Chancellor for Community and Technical Colleges, the Secretary of Education and the Arts or a designee, the Assistant State Superintendent for Technical and Adult Education, the Chair of the Joint Commission for Vocational-Technical-Occupational Education, the Chair of the Human Resource Investment Council. A majority of the members appointed to the advisory council must be present in person or through electronic means for the transaction of business.

3.3. The Chair of the Council shall report to the legislative oversight commission on education accountability on the status of the workforce development initiative program by December 1, 1999, and annually thereafter by the first day of December.

W. Va. Code R. § 145-9-4 Role of Advisory Committee

4.1. The advisory committee shall review all applications for workforce development initiative grants and make a report, including recommendations for distributing grant funds, to the Council.

4.2. The advisory committee shall recommend methods to share any curricula developed as a result of a workforce development initiative grant with other community and technical colleges and other educational institutions that may benefit from the curricula.

4.3. The advisory committee shall provide advice and assistance to the Council on such other matters related to the Workforce Development Initiative Program as the Council may request.

W. Va. Code R. § 145-9-5 Grant Process

5.1. The Council will from time to time solicit proposals for competitive grant funding to achieve the purposes and intent of the Workforce Development Initiative Program. Subject to the availability of funds, more than one competition may be held during the same fiscal year.

5.2. Subject to annual review and justification and at the sole discretion of the Council, grant awards may be renewed by the Council for a period not to exceed five years.

5.3. When determining which grant proposals will be funded, the Council will give special consideration to proposals that involve businesses with fewer than fifty employees.

5.4. The Council will weigh proposals to avoid awarding grants which will have the ultimate effect of providing an unfair advantage to new employers to the state who will be in direct competition with established local businesses.

W. Va. Code R. § 145-9-6 Funds Generally

6.1. Moneys appropriated or otherwise made available for the Workforce Development Initiative Program will be used to provide incentives for partnerships between employers and eligible community and technical colleges to develop comprehensive workforce development services.

6.2. Funds will be granted on the basis of request for proposals developed by the Council and in accordance with these rules.

6.3. The Council may allocate a reasonable amount, not to exceed five percent or a maximum of $50,000 of the funds available for grants annually, for general program administration.

W. Va. Code R. § 145-9-7 Eligibility for Program Participation

7.1. To participate in the Workforce Development Initiative Program, a community and technical college must meet the following eligibility requirements:

7.1.1. A district consortia committee as required by W. Va. Code §18B-3a-3, must be established and functioning.

7.1.2. The establishment of a plan developed in partnership with employers, local vocational schools and other workforce education providers to achieve measurable improvements over a five-year period in the quality of the workforce within the community and technical college service area.

7.1.3. The establishment of a special revolving fund under the jurisdiction of the district consortia committee dedicated solely to workforce development initiatives for the purposes provided in these rules. Any fees or revenues generated from workforce development initiatives funded by a competitive grant shall be deposited into this fund.

7.1.4. The adoption of the following within the mission of the community and technical college:

7.1.4.1. That they are a client-focused institution that develops programs meeting documented employer needs;

7.1.4.2. That they are an institution that involves and collaborates with employers in the development of programs;

7.1.4.3. That they are an institution that develops customized training programs based upon the changing needs of employers and that are offered at flexible times and locations to accommodate employer scheduling;

7.1.4.4. That they are an institution that develops partnerships with other providers, public and private, including small business development centers, vocational, technical and adult education centers, and business and labor, to fulfill the workforce development needs of its service area;

7.1.4.5. That they are an institution that assists in the on-going assessment of the workforce development needs of its service area; and

7.1.4.6. That they are an institution that serves as a visible point of contact for service delivery and referral for services to meet the workforce development needs of its service area.

W. Va. Code R. § 145-9-8 Minimum Application Criteria

8.1. To be eligible for a workforce development initiative grant, a community and technical college must submit an application that includes, at a minimum, the following:

8.1.1. That the district consortia committee or a subcommittee thereof has participated in the development of the application and approved the application.

8.1.2. That the district consortia committee or a subcommittee thereof has approved the workforce development initiative budget.

8.1.3. The identification of specific business or business sector training needs that will be met if a workforce development initiative grant is awarded.

8.1.4. A commitment from the private sector to provide a match of one dollar for each dollar of state grant money awarded unless the community and technical college can demonstrate in their application that it would be a hardship for the business or businesses being served to provide such a match. In those cases only, the match required may be reduced to one private dollar for every three dollars of state grant money awarded. In the case of awards for the modernization and procurement of equipment, the council may establish a separate match requirement of up to one dollar, cash and in-kind, for each dollar of state grant money received;

8.1.5. An agreement to share with other community and technical colleges or other educational institutions any curricula developed using funds from a workforce development initiative grant.

8.1.6. A specific plan showing how the community and technical college will collaborate with local post-secondary vocational institutions to maximize the use of existing facilities.

8.1.7. An acknowledgment that acceptance of a Workforce Development Initiative grant commits the community and technical college and its consortia committee to such terms, conditions and deliverables as is specified by the Council in the request for applications, including, but not limited to, the measures by which the performance of the grant award will be evaluated.

145CSR9

145CSR9

Series 10 Synthethic Fuel Producing Counties Grant Fund Program

W. Va. Code R. § 145-10-1 General

1.1. Scope and Purpose. -- This procedural rule establishes guidelines to be used by the Director of the West Virginia Development Office for administering the distribution of moneys in the Synthetic Fuel-Producing Counties Grant Fund Program.

1.2. Authority. -- W. Va. Code §11-13-2f(g).

1.3. Filing Date. -- February 27, 2002.

1.4. Effective Date. -- March 1, 2002

W. Va. Code R. § 145-10-2 Application and Enforcement

2.1. Application. -- These procedural rules shall apply to the Director, the West Virginia Development Office, and all Synthetic Fuel-Producing Counties Grant funds pursuant to W. Va. Code §11-13-2f(f) (2002).

2.1.1. Any specific procedural rule may be modified or waived by the Director when the Director deems it necessary and desirable to fulfill the intent of the Act.

2.2. Enforcement. -- The enforcement of this rule shall be vested with the West Virginia Development Office.

W. Va. Code R. § 145-10-3 Definitions

3.1. “Act” means Chapter 11, Article 13, Section 2f of the W. Va. Code as it relates to the Fund.

3.2. “Director” means the director of the West Virginia Development Office.

3.3. “Economic Development Project” means a project in the State which the Director determines is likely to foster economic growth and development in the area of the state which the project is developed, for commercial, industrial, community improvement or preservation or other proper purposes.

3.4. “Eligible County” means a county in which a synthetic fuel manufacturing plant actively produced synthetic fuel for at least one hundred eighty days during the applicable first year as certified by the State Tax Commissioner.

3.5. “Fund” means the synthetic fuel-producing counties grant fund created in the state treasury by W. Va. Code §11-13-2f(e)2.

3.6. “Grantee” means an Eligible County which receives an executed Grant Agreement.

3.7. “Infrastructure Council” means the West Virginia Infrastructure and Jobs Development Council created pursuant to section 3 of W. Va. Code §31-15A-1 et seq.

3.8. “Infrastructure Project” means a project in the State which the Director determines is likely to foster infrastructure improvements including but not limited to any water or wastewater facilities or any part thereof, storm water systems, steam, gas, [telephone and telecommunications], and [electric lines and installations], roads, bridges, [railroad spurs], drainage and flood control facilities, industrial park development, and buildings that promote job creation and retention.

3.9. “Plan” means the annual plan submitted by each Eligible County to the Director outlining the proposed use of the Eligible County’s Provision Share and describing the proposed Projects.

3.10. “Plan Submission Date” means February 20th of each year provided the “initial plan submission date” means March 20, 2002 for counties that are certified eligible by the State Tax Commissioner in fiscal year 2002 and February 20 for counties certified eligible in a subsequent fiscal year.

3.11. “Project” means either an Economic Development Project or an Infrastructure Project.

3.12. “Provisional Share” means the portion of the synthetic fuel producing counties grant fund that is available for possible distribution to each Eligible County.

3.13. “State Development Office” means the West Virginia Development Office established under W. Va. Code §5B-2 et seq., or any successor to all or any substantial part of its powers and duties. §145-10-4 Plans.

4.1. Plan Filing.

4.1.1. Each Eligible County shall submit its annual plan and all required project applications to the WV Development Office by the Plan Submission Date. The annual plan must include a plan summary, economic development application, and infrastructure application.

4.1.2. If the annual plan, or any component of the annual plan as listed in 4.1.1., cannot be submitted by the Plan Submission Date, the county must make a written request for a time extension not to exceed 60 days.

4.2. Plan Review.

4.2.1. At the request of the WV Development Office, the Infrastructure Council will review proposed water and sewer applications and provide a technical review for the Director.

4.2.2. The WV Development Office will review Economic Development applications and make a recommendation to the Director.

4.2.3. Review Criteria. When evaluating the Plan, the Director may consider the following:

4.2.3.1. The Plan is submitted by an Eligible County as determined by the State Tax Commissioner.

4.2.3.2. The cost effectiveness of the Project as compared with alternatives.

4.2.3.3. The degree to which the Project achieves other State or regional goals.

4.2.3.4. The enhancement of economic development by encouraging directly or indirectly development activity and job creation and retention.

4.3. Plan Approval.

4.3.1. The Director shall approve each Plan which contains Infrastructure Project(s) and Economic Development Project(s) that reasonably conform to the requirements of the Act.

4.3.2. The State Development Office will notify the Eligible County if its Plan is approved.

4.3.3. The State Development Office will prepare a Grant Agreement for each approved Project in the Plan.

4.4. Funding of Project. The Director will administer the funds to the Grantee for each Project.

W. Va. Code R. § 145-10-5 Fund Administration

5.1. Administration of program.

5.1.1. Grants are administered according to the State fiscal year, July 1 to June 30.

5.1.2. Grant Agreements will be reviewed each fiscal year.

5.2. Sources of Money for Program.

5.2.1. The fund receives moneys from the tax collected and moneys not approved or reallocated from previous fiscal year.

5.2.2. Any Eligible County that has failed to have its Plan, or an amended and resubmitted Plan approved by the Director for period of eighteen months immediately subsequent to the Initial Plan Submission Date shall lose its entitlement to its Provisional Share of the Fund attributable to the fiscal year to which that unapproved Plan relates and that Provisional Share shall be pooled with all other receipts in the Fund and be reallocated equally to all Eligible Counties as part of the Provisional Share of each.

5.2.3. If the Director determines that moneys previously distributed to a Grantee have not been used as required under the approved Plan or there appears to be reasonable probability that encumbered funds will not be used according to the approved Plan, the Director may revoke the encumbrance and those funds may be pooled with all other receipts in the Fund and be reallocated equally to Eligible Counties as part of the Provisional Share of each.

5.2.3.1. The Director may give the County the opportunity to cure the non qualified use and submit alternate plan.

5.3. Uses of Money in the program.

5.3.1. The Director may use up to $60,000 for administration of the program.

5.3.2. The Director may use up to $2,000,000 for grant distribution as set forth in the Act.

5.3.2.1. Ninety percent of the Fund will be used for Infrastructure Projects.

5.3.2.2. Ten percent of the Fund will be used for Economic Development Projects.

5.4. Limit on Grant Amount. The amount of each Eligible County’s Provisional Share is derived by dividing the share computation base by the number of synthetic fuel-producing counties in the State during the applicable fiscal year. The share computation base is the sum of (A) Net revenues deposited in the synthetic fuel-producing counties grant fund for the fiscal year, and (B) any amounts repooled for the fiscal year into the synthetic fuel producing counties grant fund, less (C) the amount dedicated for administration of the Fund.

5.5. Terms of Grant.

5.5.1. Each Grantee must adopt a resolution/order authorizing the acceptance of the grant agreement and submit such resolution/order to the State Development Office.

5.5.2. Each grant recipient must agree that the grant funds will be included in its annual audit by the Chief Inspector.

5.5.3. Grant funds will not be committed or spent by the Grantee until an executed grant agreement is received from the State Development Office.

5.5.4. The annual plan, or amended or resubmitted plan or plans, must be approved within eighteen months of the Plan Submission Date and include specific uses for all available funds, including funds to be encumbered for use in subsequent fiscal years.

5.5.5. The Grantee will designate in writing an individual to maintain all records and oversee each Project.

5.5.6. The Grantee agrees that it will perform the work for which the Grant was made.

5.5.7. The Grantee agrees that any changes in the scope of the work specified in the Grant Agreement will be submitted in writing for prior written approval by the Director.

5.5.8. The amount to be distributed to the Grantee shall not exceed the amount of the Grantee’s Provisional Share for the applicable fiscal year plus amounts encumbered and carried over from a prior period.

5.5.9. No money in the Fund may be used by a Grantee as money to be matched under the funds matching program authorized by W. Va. Code §5b-2-3(b).

145CSR10

145CSR10

Series 11 Brownfield Economic Development Districts

W. Va. Code R. § 145-11-1 General

1.1. Scope. -- This legislative rule governs the establishment of brownfield economic development districts and establishes the procedures, standards, legal documents, fees and notice applicable to an applicant for the establishment of a brownfield economic development district.

1.2. Authority. -- W. Va. Code §5B-2-6a.

1.3. Filing Date. -- March 16, 2012.

1.4. Effective Date. -- March 16, 2012.

W. Va. Code R. § 145-11-2 Definitions

For purposes of this rule:

2.1. “Applicant” means a person who is applying or has applied to the Director of the Development Office for establishment of a brownfield economic district.

2.2. “Application” means an application for establishment of a brownfield economic development district that is filed with the Director of the Development Office pursuant to W. Va. Code §5B-2-6a and this rule, which provides all of the information and documentation required by this rule.

2.3. “Application fee” or “fee” means the fee provided for in section four of this rule.

2.4. “Brownfield” means a brownfield as defined in W. Va. Code §22-22-2.

2.5. “Brownfield economic development district” means a district established by the Director of the Development Office pursuant to W. Va. Code §5B-2-6a and in accordance with this rule. Beginning July 1, 2011, an application for a brownfield economic development district may not be approved unless the district conforms to a county’s or municipality’s planning and zoning laws established pursuant to the provisions of W. Va. Code §§8A-7; 8A-8; 8A-9.

2.5.a. A brownfield economic district may not contain single-family housing.

2.5.b. Brownfield economic development districts shall provide all the infrastructure within the district without cost to the state, county, public service district or local municipal government.

2.6. “Compensation” means wages, salaries, commissions and any other form of remuneration paid to employees for personal services.

2.7. “Control,” means, with respect to a corporation, ownership, directly or indirectly, of stock possessing fifty percent (50%) or more of the total combined voting power of all classes of the stock of the corporation entitled to vote. “Control,” with respect to a trust, means ownership, directly or indirectly, of fifty percent (50%) or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation of a capital or profits interest in a partnership or association or of a beneficial interest in a trust is determined in accordance with the rules for constructive ownership of stock provided in section 267 (c) of the United States Internal Revenue Code of 1986, as amended, other than paragraph (3) of that section.

2.8. “Department of Commerce” means the Department of Commerce created in the executive branch of state government in W. Va. Code §5F-1-2(a).

2.9. “Department of Environmental Protection” means the Department of Environmental Protection created in the executive branch of state government in W. Va. Code §5F-1-2(a).

2.10. “Designee” means any officer or employee of the Director of the Development Office, the Secretary of Commerce or the Secretary of Environmental Protection, duly authorized, directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this rule.

2.11. “Development Office” means the West Virginia Development Office created in W. Va. Code §5B-2-1 et seq., which is an agency that is incorporated in and administered as part of the Department of Commerce, as provided in W. Va. Code §5B-1-2.

2.12. “Direct jobs” means jobs located in the brownfield economic development district during the construction phase and employment in the district after the project plan is completed.

2.13. “Director” means the “Director of the West Virginia Development Office.”

2.14. “Economic development plan” means written and graphic material for provision of a development that at a minimum includes the following information:

2.14.a. Name, address and phone number of property owner(s).

2.14.b. Name, address and phone number of property developer (if not the owner).

2.14.c. Name of development project, date, direction, scale.

2.14.d. Date economic development plan was prepared.

2.14.e. Name, address and phone numbers of project architect(s), engineer(s) and landscape architect(s).

2.14.f. Intended land-use or nature of development.

2.14.g. Vicinity map showing general location, surrounding property and major physical features.

2.14.h. General layout of property showing shape, approximate dimensions, and total acreage.

2.14.i. A conceptual site development plan showing alignment of building(s), what developer anticipates will be the use of the building(s) and any phases of the project, if the project will be done in phases.

2.14.j. A description of the infrastructure that will be provided by the developer.

2.15. “Full-time employee” means a permanent hourly or salary employee who is headquartered at a business location in the brownfield economic development district and who works more than eighteen hundred hours during the entire twelve-month period ending on the last day of the calendar year, whether these hours are hours worked in the district, or include hours of employer paid vacation leave or other employer paid leave. Full-time employee does not include an employee who is a part-time, seasonal or temporary employee.

2.16. “Full-time employment” means employment for at least one hundred forty hours per month at a wage not less than the prevailing state or federal minimum wage, depending on which minimum wage provision is applicable to the business.

2.17. “Indirect jobs” means jobs created in the county in which the brownfield economic district is located that did not exist in the county before completion of the project plan for the district and which are not located or based in the district.

2.18. “Infrastructure” means broadband Internet, electric lines, natural gas or propane lines, water lines, water processing plant, fiber optic telephone lines, sewer lines, sewer disposal facilities, storm water lines, storm water disposal facilities, lighting, and roads located within the brownfield economic development district and any upgrades to existing facilities and roads located outside the district that are necessary to deliver reliable electric, natural gas or propane, telephone, and water to businesses and residents located within the district, and to transmit and treat sewage and storm water generated in the district and the cost of improving roads located outside the district, including, but not limited to, adding turn lanes or lanes, widening lanes, adding traffic signals as may be necessary to minimize congestion to the extent due to economic development and economic activity in the district, and improve public safety. “Infrastructure” does not include customer charges for connection to a utility or charges for the utility service used or consumed by the utility customer.

2.19. “New employee” means a person hired by the developer or other employer located in the brownfield economic district to fill a position or a job in the district which previously did not exist in the developer’s or other district employer’s business enterprise in this State prior to the date on which the economic development project is placed in service or use in this State. A person is considered to be a “new employee” only if the person’s duties in connection with the operation of the business in a brownfield economic development district are on:

2.19.a. A regular, full-time and permanent basis, or

2.19.b. A regular, part-time and permanent basis provided the person is customarily performing the duties at least twenty hours per week for at least six months during the calendar year.

2.20. “New job” means a job which did not exist in the brownfield economic development district in the business of the developer or other employer located in the district prior to the economic development project being placed in service.

2.21. “Own or control the property in the brownfield economic development district” means that the property is owned by the applicant or by a related person as defined in this rule.

2.22. “Part-time employee” means an employee who works less than twenty hours per week.

2.23. “Permanent employee” means any employee who is not a temporary or seasonal employee and who customarily performs his or her duties at least twenty hours per week for at least six months during the calendar year.

2.24. “Person” includes any natural person, corporation, partnership, or entity treated as a partnership for federal and state income tax purposes. For purposes of applying for establishment of a brownfield economic development district, “person” also includes a county, municipality, the West Virginia Economic Development Authority, a county or municipal economic development authority, and the Regional Brownfield Assistance Center established at Marshall University or West Virginia University pursuant to W. Va. Code §18B-11-7.

2.25. “Related person” means:

2.25.a. A corporation, partnership, association or trust controlled by the applicant;

2.25.b. An individual, corporation, partnership, association or trust that is in control of the applicant;

2.25.c. A corporation, partnership, association or trust controlled by an individual, corporation, partnership, association or trust that is in control of the applicant; or

2.25.d. A member of the same controlled group as the applicant.

2.26. “Seasonal employee” means an employee who normally works on a full-time basis less than five months in a year.

2.27. “Secretary of Commerce” means the chief executive officer of the Department of Commerce, or his or her designee.

2.28. “Secretary of Environmental Protection” means the chief executive officer of the Department of Environmental Protection, or his or her designee.

2.29. “Single-family housing” means a single-family dwelling unit on a separate lot that shares no common wall with any other dwelling unit.

2.30. “Significant economic development activity” means:

2.30.a. Total private real and personal property investment in an economic development project that is in excess of fifty million dollars ($50 million), not including the cost of land, through infrastructure, new construction, reconstruction, installation of fixtures and equipment of the project; and

2.30.b. Creation of additional annual payroll within the district in excess of five million dollars ($5 million).

2.31. “Site” means the contiguous land owned or controlled by the developer when the application is filed under this rule, comprising fifty (50) acres or more of which at least twenty-five percent (25%) of the site acres are subject to a voluntary remediation agreement entered into with the Secretary of Environmental Protection, as provided in W. Va. Code §22-22-1 et seq., or were subject to such an agreement and for which the developer received a certificate of completion issued by the Department of Environmental Protection as provided in W. Va. Code §22-22-13.

2.32. “Temporary employee” means any employee who is not a permanent employee, a part-time permanent employee, a seasonal employee or a part-time seasonal employee.

2.33. “Voluntary remediation” means a series of measures that are self-initiated by a person to identify and address potential sources of contamination of property and to establish that the property complies with applicable remediation standards that are performed pursuant to a voluntary remediation plan.

2.34. “Voluntary remediation plan” means the remediation work plan approved by the Secretary of Environmental Protection and authorized in the voluntary remediation agreement executed pursuant to W. Va. Code §22-22-1 et seq.

2.35. “West Virginia Code” or “W. Va. Code” means the Code of West Virginia, one thousand nine hundred thirty-one, as amended.

W. Va. Code R. § 145-11-3 Content of application

An application for establishment of a Brownfield Economic Development District shall, at a minimum, include the following:

3.1. The applicant’s name.

3.2. The applicant’s current address.

3.3. The applicant’s telephone number, facsimile number and e-mail address.

3.4. The applicant’s financial capabilities.

3.5. The name of the proposed Brownfield Economic Development District.

3.6. A general description of the site to be designated a Brownfield Economic Development District, which shall include, at a minimum, the following:

3.6.a. A written description of the site that includes any city, county, and street addresses, and adjacent landmarks, buildings, waterways, former uses or other identifying information.

3.6.b. The deed book number and deed number of the site.

3.6.c. The County tax map references.

3.6.d. Geographic information system data to accurately delineate the voluntary remediation site.

3.6.d.1. All geographic information system location data must have a horizontal accuracy within 12.2 meters (40 feet) in accordance with the U.S. Department of Interior U.S. Geological Survey National Map Accuracy Standards.

3.6.e. Any other identifying information that will serve to clearly and concisely identify the real estate to be included in the Brownfield Economic Development District.

3.6.f. A Brownfield Economic Development District may not include any non-contiguous location or property not owned or controlled by the applicant at the time the application is filed.

3.7. A map showing the boundaries of the Brownfield Economic Development District and showing the proposed economic development in the district.

3.8. Documentation establishing that as of the date of the application the applicant owns or controls all of the land in the proposed Brownfield Economic Development District.

3.9. A time line for completion of the economic development project.

3.10. A traffic study performed by a recognized traffic consultant if (a) the economic development project will directly and indirectly employ more than 200 employees who will work in the district once the economic development project is finished, or (b) if more than 200 individuals will reside in the district once the economic development project is completed, or (c) if any combination of residents and employees exceeds 200 persons in the aggregate.

3.11. A true copy of the economic development concept project plan including an estimated breakdown of project costs, which shall not include the cost to complete the voluntary remediation agreement.

3.12. Documentation of financial ability of the applicant to undertake and complete the proposed economic development project plan or an independent economic feasibility study demonstrating the feasibility of the proposed economic development project.

3.13. If the project infrastructure will tie in to a public or private utility, a letter from the utility or utilities serving the area in which the project is located certifying the following:

3.13.a. They have reviewed and approved all plans and specifications for the project’s infrastructure applicable to the utility to determine that the infrastructure conforms to the utility’s reasonable requirements and, when the infrastructure consists of water transmission or distribution facilities, that the infrastructure will provide for adequate fire protection for the district; and

3.13.b. If the infrastructure is built in conformance with said plans and specifications, the utility will accept the improvements following their completion.

3.14. If state or local roads adjacent to the Brownfield Economic Development District will need to be upgraded to facilitate ingress and egress from the district, the developer shall pay for the cost of these improvements which shall be evidenced by a letter from the Division of Highways, State Department of Transportation, or the local government entity describing generally the construction work to be done, and that the developer has agreed to reimburse the Department or local government entity for the costs of construction. If the developer will build roads that upon completion will be taken into the state or local road system, the developer shall provide a letter from the Division of Highways or local government entity certifying that if the road(s) is built to standards of the Division of Highways or the local government entity, the road(s) will be taken into the State Road System of the local road system, as the case may be.

3.15. If the utility does not currently have adequate capacity to provide reliable service customers in the Brownfield Economic Development District without significant upgrades or modifications to its treatment, storage, source of supply, or transmission facilities, the applicant must agree to pay the cost of upgrading the utility so that it has adequate capacity to provide the utility service.

3.16. A true copy of the voluntary remediation agreement with the Secretary of the Department of Environmental Protection covering some or all of the land in the proposed district.

3.17. Facts and documents demonstrating that designation of a site as a Brownfield Economic Development District will create significant economic development, as defined in section 2 of this rule, including, but not limited to:

3.17.a. Estimated total number of jobs to be created in the Brownfield Economic Development District.

3.17.a.1. Estimated number of construction jobs over the life of the project.

3.17.a.2. Estimated number of permanent jobs once the project is completed and all buildings are occupied.

3.17.a.3. Estimated number of temporary or seasonal jobs once the project is completed and all buildings to be occupied are occupied.

3.17.a.4. Estimated number of part-time jobs once the project is completed and all buildings are occupied.

3.18. Facts and documents demonstrating that but for designation as Brownfield Economic Development District, the contemplated economic development project would not be possible.

3.19. Facts and documents demonstrating that the economic development project is in the best interest of the State. At a minimum, these facts and documents shall include an economic forecast of:

3.19.a. The additional amount of real and personal property taxes expected to be collected once the economic development project is completed.

3.19.b. The additional state and local taxes the completed project will generate, not including ad valorem property taxes or taxes levied on employees working in the district.

3.19.c. The amount of West Virginia personal income taxes that will be paid by employees working in the district once the project is completed, based on the payroll of the district.

3.20. An applicant shall demonstrate that the applicant has attempted to work in good faith with local officials in regard to land-use issues.

3.20.a. A copy of the original land use plan submitted to the local land use officials.

3.20.b. A copy of any and all amended or revised land development plan and plat submitted to the local land use officials, with a cover document highlighting the major difference(s) between each version of the land use plan.

3.20.c. One or more documents showing that the land use plan was rejected by the land use officials. Examples of these documents include, but are not limited to, a transcript of the public meeting at which the land use plan was rejected, a letter or order signed by the chairman of the land use officials providing reasons why the land use plan was rejected, the affidavit of the applicant or the affiant’s attorney stating the affiant’s understanding of why the land use plan was rejected.

3.21. Prior to granting a designation of brownfield economic development district, the applicant shall provide documentation that the applicant is in compliance with the voluntary remediation agreement and that all of the requirements of W. Va. Code §22-22-1 et seq., as of the date the application for establishment of the Brownfield Economic Development District was filed with the Development Office.

3.22. Nothing may be construed by this section to exempt brownfield economic districts from environmental regulations that would pertain to the Brownfield Economic Development.

3.23. The decision of the development office in regard to an application is final.

3.24. Ongoing requirement to correct errors or update information in application.

3.25. Other information, as requested by the Director of the Development Office.

W. Va. Code R. § 145-11-4 Application fee

4.1. All costs for the application process shall be borne by the applicant in the amount of $2,500 and shall be paid at the time the application is submitted to the Development Office.

4.2. If the application is withdrawn by the applicant before the Development Office begins its review of the application, the application fee shall be refunded to the applicant. If the application is withdrawn after the Development Office has begun review of the application, no portion of the application fee shall be refunded to the applicant.

4.3. If during review of the application the Development Office requests additional information from the applicant that is not provided by the applicant within sixty days of being notified by facsimile transmission or certified mail of the additional information needed and thereafter the information requested is provided, the applicant shall pay a fee of $2,500 at the time the additional information is provided and the amended application shall be treated as a new application for purposes of this rule.

W. Va. Code R. § 145-11-5 Time-line for processing application

5.1. The Development Office shall mark on the application the date it is received by the Development Office.

5.2. The Development Office shall have ninety days after it physically receives a complete application to establish a Brownfield Economic Development District in which to grant the application, deny the application, or request additional information from the applicant. A complete application is one which provides all of the information required by section three of this rule.

5.3. If the application is granted or denied, the Director of the Development Office shall promptly notify the applicant in writing of the decision, which shall be served on the applicant by certified mail, or by facsimile transmission and first class regular mail.

5.4. If the Director requests additional information from the applicant, the request shall be made in writing and served on the applicant by certified mail, or by facsimile transmission and first class regular mail.

5.5. The applicant shall have sixty days from date of receipt of the request for additional information in which to provide the additional information.

5.6. When the additional information is provided within the applicable sixty-day period, the Director shall have thirty days after physical receipt of the additional information to act on the application or the balance of the original ninety-day period to act on the application, whichever is longer.

5.7. When the additional information is provided subsequent to the applicable sixty-day period, the additional information and the original application shall be treated as a new application, requiring payment of a new application fee, and the Director shall have ninety days from date of receipt of the new application fee in which to act on the application by granting or denying the application or requesting additional information.

W. Va. Code R. § 145-11-6 Timely filing and paying; performance when last day to act is Saturday, Sunday or holiday in this State

6.1. Delivery in person. -- If any document required by this rule to be filed with the Director of the Development Office, or any payment required to be made, within a prescribed period or on or before a prescribed date, is delivered in person on or before such date to the Development Office at Charleston, West Virginia, during normal business hours of the Development Office, it shall be timely filed.

6.2. Timely mailing. -- If any document required by this rule to be filed with the Director of the Development Office, or any payment required to be made within a prescribed period or on or before a prescribed date under authority of this rule, is, after such period or such date, delivered by United States mail to the Director of the Development Office, the date of the United States Postal Service postmark stamped on the cover in which such document or payment is mailed is the date of delivery or the date of payment, as the case may be, provided the following mailing requirements are met:

6.2.a. The postmark date falls within the prescribed period or on or before the prescribed date for filing of the document or for making payment, and

6.2.b. The document or payment was, within the time prescribed in subdivision 6.2.a, deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to Director of the Development Office or the Development Office.

6.3. Registered and certified mailing. -- For purposes of this section, if any document or payment is sent by United States registered or certified mail, the date of registration or certification is the postmark date.

6.4. Time for performance. -- When the last day to act falls on a Saturday, Sunday or legal holiday in this State, the act shall be timely if done on the next day that is not a Saturday, Sunday or legal holiday in this State.

W. Va. Code R. § 145-11-7 Public notices

7.1. Within fourteen days after receipt of any application for establishment of a Brownfield Economic Development District, the Director of the Development Office shall file a notice in the State Register:

TO WHOM IT MAY CONCERN

Notice is hereby given that _______________________________________ filed an application with the Director of the West Virginia Development on ______________, 2012, for establishment of the _____________________________________ Brownfield Economic Development District. The proposed district consists of __________________________ contiguous acres located at ________________________. Included in the application is a plan for economic development of the district, which is generally described as follows: [Insert brief description of the economic development project, including phases of the project, if any, and the project’s estimated cost.]

Interested persons may inspect the application during normal business hours of the West Virginia Development Office in Charleston, West Virginia, to the extent inspection is permitted under the State Freedom of Information Act, W. Va. Code §29B-1-1 et seq.

7.2. Within fourteen days after the Director established a Brownfield Economic Development District or rejects the application for establishment of the district, a copy of the Director’s letter or order shall be filed in the State Register.

W. Va. Code R. § 145-11-8 Criterion for considering application

The Director of the Development Office shall use the following criterion when determining whether to grant or deny an application for establishment of a Brownfield Economic Development District:

8.1. Criterion for determining whether establishing a Brownfield Economic Development District will create significant economic development, as defined in section two of this rule, in the district include, but are not limited to:

8.1.a. The cost of the economic development project, exclusive of land cost will be greater than ten million dollars.

8.1.b. The estimated number and quality of jobs to be created within the district, including, but not limited to, construction jobs and permanent employment jobs.

8.1.c. The estimated annual payroll of the jobs to be created in the district.

8.1.d. The extent to which the jobs in the district are new jobs as contrasted with the relocation of existing jobs from within this State.

8.1.e. The extent to which the economic development project will support, enhance, and diversify existing business located in the county or region in which the district is located.

8.2. Criterion for determining whether but for designation of the site as a brownfield economic development district the proposed economic development would not be possible include, but are not limited to:

8.2.a. Rejection of the applicant’s land use proposal by the local officials who would otherwise need to approve the proposal.

8.2.b. The reason(s) for rejection of the applicant’s proposal given by the local land use officials, if any reason(s) were provided in writing.

8.3. Criterion for determining whether the economic development project is in the best interest of the State include but are not limited to:

8.3.a. The extent to which the new permanent jobs created will be quality jobs that pay high wages and provide good benefits.

8.3.b. The extent to which the district will stimulate and support the growth of new or existing businesses located outside the district but in the county.

8.3.c. The extent to which the district will stimulate and support the growth of new or existing businesses located outside the county but in this State.

8.3.d. The extent to which the district will compete with or compliment existing businesses in the county.

8.3.e. The extent to which the economic development project will, directly, or indirectly, improve the opportunities in the area where the district will be located for the successful establishment or expansion of other commercial or industrial businesses in the county.

8.3.f. The extent to which the economic development project will, directly, or indirectly, assist in the creation of additional employment opportunities in the area where the district will be located.

8.3.g. The extent to which the economic development project will help to diversify the local economy.

8.3.h. Other criteria:

8.3.h.1. The estimated amount of ad valorem property taxes that will be generated annually as a result of the completed project.

8.3.h.2. The estimated state and local taxes, not including ad valorem property taxes, that will be generated annually from businesses activities and employment in the district.

8.3.h.3. The estimated state and local taxes, including ad valorem property taxes, that will be generated annually from businesses activities and employment outside the district that are fairly related to business and other activities in the district.

8.4. Criterion for determining whether the applicant has attempted to work in good faith with local officials in regard to land use include but are not limited to:

8.4.a. The land use plan submitted to local officials.

8.4.b. Any revised land use plan submitted to local officials.

8.4.c. That the land use plan(s) submitted by the applicant was rejected or tabled by the local officials, or the local officials refused to consider the land use plan.

W. Va. Code R. § 145-11-9 Duties of applicant after district is established

9.1. Upon completion of the economic development plan and plat for the Brownfield Economic Development District, the applicant or any successor to the applicant shall submit the plan and plat to the Director of the Development Office for approval. If the Director finds that the plan and plat are substantially in compliance with the concept plan submitted with the application for establishment of the Brownfield Economic Development District, the Director shall approve the plan and plat for recording by the applicant or any successor to the applicant in the office of the county clerk of the county in which the district is located.

9.2. On or before the first day of the thirty-sixth month following the month in which the Brownfield Economic Development District was established by the Director of the Development Office, the project engineer or architect retained or employed by applicant or any successor to the applicant shall certify to the Director that the economic development project remains in substantial compliance with all material provisions of the economic development project concept plan including, but not limited to, the project completion time-line, filed with the application for establishment of the Brownfield Economic Development District and identify any area or area where material changes, if any were made. The seal of the architect or engineer shall be affixed to the certification. This certification shall be made on or before the first day of every eighteen month anniversary thereafter until the project architect or engineer retained or employed by the applicant or any successor to the applicant, certifies, under seal, that eighty percent (80%) or more of the buildings in the economic development project concept plan, based on square footage of space, has been completed. For purposes of this section “substantial compliance” means compliance with the material provisions of the economic development concept plan and the project completion timeline.

9.3. Whenever the applicant or any successor to the applicant fails to comply with the requirements of subsection 9.1 for more than thirty calendar days, the designation of the district as a Brownfield Economic Development District shall automatically be revoked without further action by the Director of the Development Office.

9.4. Whenever the applicant or any successor to the applicant desires to materially change or deviate from the economic development concept plan or the project completion time-line submitted with the application for the Brownfield Economic Development District, the applicant or any successor to the applicant shall apply to the Director of the Development Office for approval of the material change in or deviation from the concept plan at least thirty days before entering into any contract that by itself or in conjunction with one or more other contracts, would result in a material change in or deviation from the economic development concept plan or the project completion time-line. For purposes of this subsection “material change” means a reduction in the aggregate square footage of the buildings proposed in the economic development project concept plan by more than fifteen percent (15%), or a change in the use of a building to a use inconsistent with or a use less desirable than the use or uses described in the concept plan.

9.5. Whenever the applicant or any successor to the applicant fails to comply with the requirements of subsection 9.4, the designation of the district as a Brownfield Economic Development District shall automatically be revoked without further action by the Director of the Development Office.

9.6. Whenever the Brownfield Economic Development District is revoked pursuant to this section, the Director shall promptly notify the applicant or any successor to the applicant in writing of the revocation due to the action or inaction of the applicant or any successor to the applicant. The Director shall send a copy of the notice to the governing body of the local jurisdiction or jurisdictions in which the Brownfield Economic Development District was located. The Director’s notice shall be served on the applicant or any successor to the applicant and on the governing body by certified mail return receipt requested, or by facsimile transmission and regular mail.

9.7. Once designated, the district shall work in conjunction with the regional brownfield assistance centers of Marshall University and West Virginia University as specified in §18B-11-7 of this code.

W. Va. Code R. § 145-11-10 Vested property right; termination

10.1. When a Brownfield Economic Development District is established as provided in W. Va. Code §5B-2-6a and this rule, the applicant for the district and any successor to the applicant shall have a vested property right to undertake and complete the approved elements of the economic development project plan.

10.2. Failure to abide by the terms and conditions of this rule or material failure to complete the economic development project concept plan shall result in revocation of the Brownfield Economic Development District as provided in section 9 of this rule and in forfeiture of the right established in this section.

10.3. The vesting period within which the approved elements of the economic development project plan must be completed is three years from the date the Brownfield Economic Development District is established by the Director of the Development Office. This three-year period shall automatically be extended for thirty-six months each time the certification required by subsection 9.2 is filed with the Director of the Development Office and shall become permanent once eighty percent (80%) or more of the buildings in the economic development project plan, based on square footage of space, have been completed, unless the district is sooner terminated, as provided in this rule.

10.4. Revocation of the Brownfield Economic Development District as provided in this rule or expiration of the five year vesting period prior to completion of the economic development concept plan shall not affect the portion of the economic development concept plan completed before the district is revoked or the five-year vesting period expires. Neither of these events shall affect any construction work in progress begun before the district is revoked or the five-year vesting period expires except that this grandfather rule shall not apply to any construction work in progress that is not consistent with the economic development concept plan filed with the application for creation of the Brownfield Economic Development District or any change thereto that has been approved in writing by the Director of the Development Office.

W. Va. Code R. § 145-11-11 Orders of the Director are final

11.1. The order of the Director of the Development Office establishing a Brownfield Economic Development District is final when issued by the Director except as otherwise provided in this rule for termination of the district due the action or failure to act of the applicant or any successor to the applicant.

145CSR11

145CSR11

Series 12 Municipal Economic Opportunity Development Districts

W. Va. Code R. § 145-12-1 General

1.1. Scope. -- This procedural rule governs the establishment of economic opportunity development districts and establishes the procedures, standards, legal documents, fees and notice applicable to an applicant for the establishment of an economic opportunity development district.

1.2. Authority. -- W. Va. Code §8-38-7(g).

1.3. Filing Date. -- July 5, 2011.

1.4. Effective Date. -- August 5, 2011.

W. Va. Code R. § 145-12-2 Definitions

For purposes of this rule:

2.1. “Affordable Housing” means housing that could be purchased with a cash down payment of at least ten percent and the proceeds of a mortgage loan, the monthly principal and interest payments on which do not exceed thirty percent of the gross monthly income of a household earning one hundred percent of the current median family income, as computed by the United States Department of Housing and Urban Development, for the county in which the district is located. For the purposes of this definition, the monthly principal and interest payments referred to in the preceding sentence are computed using a standard amortization calculation incorporating the prevailing annual rate of interest on mortgage loans offered by financial institutions in the vicinity of the district, as defined by the Development Office at the time of its review of a municipality’s application in accordance with W. Va. Code §8-38-7, and a thirty year amortization period.

2.2. “Applicant” means a municipality having established an economic opportunity development district in accordance with W. Va. Code §8-38-4 who is applying or has applied to the Director of the Development Office for approval of an economic opportunity development district project.

2.3. “Application” means a request from a municipality for approval of an economic opportunity development district project that is filed with the Director of the Development Office pursuant to W. Va. Code §8-38-7 and this rule, which provides all of the information and documentation required by this rule.

2.4. “Certificate of project” means a written statement issued to an applicant by the Director of the Development Office pursuant to W. Va. Code §8-38-7(e) and that evidences the Director’s approval of the applicant’s project application.

2.5. “Department of Commerce” means the Department of Commerce created in the executive branch of state government in W. Va. Code §5F-1-2(a).

2.6. “Development expenditures” means payments for government functions, programs, activities, facility construction, improvements and other goods and services which a district board is authorized to perform or provide pursuant to W. Va. Code §8-38-5.

2.7. “Development Office” means the West Virginia Development Office created in W. Va. Code §5B-2-1 et seq., which is an agency that is incorporated in and administered as part of the Department of Commerce, as provided in W. Va. Code §5B-1-2.

2.8. “Director” means the Executive Director of the West Virginia Development Office.

2.9. “District” means an economic opportunity development district pursuant to W. Va. Code §8-38-4.

2.10. “District Board” means a district board created pursuant to W. Va. Code §8-38-10.

2.11. “Eligible property” means any taxable or exempt real property located in a district established pursuant to W. Va. Code §8-38-4.

2.12. “Municipality” is a word of art and means any Class I, Class II and Class III city or any Class IV town or village as classified in W. Va. Code §8-3-1.

2.13. “Remediation” means measures undertaken to bring about the reconditioning or restoration of property located within the boundaries of an economic opportunity development district that has been affected by exploration, mining, industrial operations or solid waste disposal and which measures, when undertaken, will eliminate or ameliorate the existing state of the property and enable the property to be commercially developed.

2.14. “Special District Excise Tax” means an excise tax imposed by ordinance upon the privilege of selling tangible personal property and rendering select services to a district and levied by a municipality having been authorized to impose the tax by the West Virginia Legislature for the benefit of an economic opportunity development district.

2.15. “West Virginia Code” or “W. Va. Code” means the Code of West Virginia, one thousand nine hundred thirty-one, as amended.

W. Va. Code R. § 145-12-3 Contents of Application

An application for establishment of an economic opportunity development district shall, at a minimum, include the following:

3.1. The applicant’s name.

3.2. The applicant’s current address.

3.3. The applicant’s telephone number, facsimile number and e-mail address.

3.4. The name of the proposed economic opportunity development district.

3.5. A true copy of the notice of hearing described in W. Va. Code §8-38-6.

3.6. The total cost of the project.

3.7. A reasonable estimate of the number of months needed to complete the project.

3.8. A general description of the capital improvements, additional or extended services and other proposed development expenditures to be made in the district as part of the project.

3.9. A description of the proposed method of financing the development expenditures, together with a description of the reserves to be established for financing ongoing development expenditures necessary to permanently maintain the optimum economic viability of the district following its inception; provided that the amount of the reserves may not exceed the amounts that would be required by prevailing commercial capital market considerations.

3.10. A description of the sources and anticipated amounts of all financing, including, but not limited to, proceeds from the issuance of any bonds or other instruments, revenues from the special district excise tax and enhanced revenues from property taxes and fees.

3.11. A description of the financial contribution of the municipality to the funding of development expenditures.

3.12. Identification of any businesses that the municipality expects to relocate their business locations from the district to another place in the state in connection with the establishment of the district or from another place in this state to the district; provided that for purposes of this rule, any entities shall be designated as “relocated entities.”

3.13. Identification of any business currently conducting business in the proposed economic opportunity development district that the municipality expects to continue doing business there after the district is created.

3.14. A good faith estimate of the aggregate amount of consumer sales and service tax that was actually remitted to the Tax Commissioner by all business locations identified as provided in 3.12. and 3.13. of this rule with respect to their sales made and services rendered from their then current business locations that will be relocated from, or to, or remain in the district for the twelve full calendar months next preceding the date of the application; provided that for purposes of this article, the aggregate amount is designated as “the base tax revenue amount.”

3.15. A good faith estimate of the gross annual district tax revenue amount.

3.16. The proposed applications of any surplus from all funding sources to further the objectives of W. Va. Code §8-38-1 et seq. and this rule.

3.17. The Tax Commissioner’s certification of:

3.17.a. The amount of consumer sales and service tax collected from businesses located in the economic opportunity district during the twelve calendar months preceding the calendar quarter during which the application will be submitted to the Development Office.

3.17.b. The estimated amount of economic opportunity district excise tax that will be collected in the first twelve months after the month in which the Tax Commissioner would first begin to collect the tax.

3.17.c. The estimated amount of economic opportunity district excise tax that will be collected during the first thirty-six months after the month in which the Tax Commissioner would first begin to collect that tax.

3.18. Any additional information that the Development Office may require.

W. Va. Code R. § 145-12-4 Timeline for Processing Applications

4.1. The Development Office shall mark on the application the date it is received from the municipality.

4.2. The Development Office shall have thirty days from the date of receipt of a complete application or the date of any additional information requested by the Development Office, whichever is later. A complete application is an application that includes all the information required by section three of this rule.

4.3. The Development Office shall review all applications for conformance to statutory and regulatory requirements, the reasonableness of the proposed district project’s budget and timetable for completion and the criteria stated in section 6 of this rule.

4.4. If the application is granted or denied, the Director of the Development Office shall promptly notify the applicant in writing of the decision, which shall be served on the applicant by certified mail, or by facsimile transmission and first class regular mail.

4.5. If the Director requests additional information from the applicant, the request shall be made in writing and served on the applicant by certified mail, or by facsimile transmission and first class regular mail.

4.6. The applicant shall have thirty days from the date of receipt of the request for additional information in which to provide the additional information. Failure to provide the requested additional information within the thirty day time period is cause for denial of the application.

W. Va. Code R. § 145-12-5 Timely filing; performance when last day to act is Saturday, Sunday or holiday of the State

5.1. If any document required by this rule to be filed with the Director within a prescribed period or on or before a prescribed date, is delivered in person on or before such date to the Development Office in Charleston, West Virginia, during normal business hours of the Development Office, it shall be timely filed.

5.2. If any document required by this rule to be filed with the Director within a prescribed period or on or before a prescribed date, is after such period or such date, delivered by United States mail to the Director, the date of the United States Postal Service postmark stamped on the cover in which such document is mailed is the date of delivery, provided the following mailing requirements are met:

5.2.a. The postmark date falls within the prescribed period or on or before the prescribed date for filing of the document.

5.2.b. The document was within the time prescribed in subdivision 5.2.a., deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the Director or the Development Office.

5.3. For purposes of this section, if any document is sent by United States registered or certified mail, the date of registration or certification is the postmark date.

5.4. When the last day to act falls on a Saturday, Sunday or legal holiday in this State, the act shall be timely if done in the next day that is not a Saturday, Sunday or legal holiday in this State.

W. Va. Code R. § 145-12-6 Criteria for considering applications

The Director of the Development Office shall use the following criteria when determining whether to grant or deny an application for establishment of an economic opportunity development district:

6.1. The quality of the proposed project and how it addresses economic problems in the area in which the project will be located.

6.2. The merits of the project determined by a cost-benefit analysis that incorporates all costs and benefits, both public and private.

6.3. Whether the project is supported by significant private sector investment and substantial credible evidence that, but for the existence of sales tax increment financing, the project would not be feasible.

6.4. Whether the economic opportunity development district excise dollars will leverage or be the catalyst for the effective use of private, other local government, state or federal funding that is available.

6.5. Whether there is substantial and credible evidence that the project is likely to be started and completed in a timely fashion.

6.6. Whether the project will, directly or indirectly, improve the opportunities in the area where the project will be located for the successful establishment or expansion of other industrial or commercial businesses.

6.7. Whether the project will, directly or indirectly, assist in the creation of additional long-term employment opportunities in the area and the quality of jobs created in all phases of the project, to include, but not limited to, wages and benefits.

6.8. Whether the project will fulfill a pressing need for the area, or part of the area, in which the economic opportunity district is located; provided that the Development Office should consider whether the economic development project is large enough to require that it contain a mixed used development provision consisting of a housing component with at least ten percent of housing units in the district allocated for affordable housing.

6.9. Whether the municipality has a strategy for economic development in the municipality and whether the project is consistent with that strategy.

6.10. Whether the project helps to diversify the local economy.

6.11. Whether the project is consistent with the goals of W. Va. Code §8-38-1 et seq.

6.12. Whether the project is economically and fiscally sound using recognized business standards of finance and accounting.

6.13. The ability of the municipality and the project developer or project team to carry out the projected subject to W. Va. Code §8-38-7(b)(13)(A) and (B).

6.14. Any other criteria that the Development Office establishes.

W. Va. Code R. § 145-12-7 Certification of Project

7.1. If the Director approves an application, the Director shall issue the applicant a written certificate evidencing the Director’s approval.

7.2. The certificate shall expressly state the following:

7.2.a. The name of the municipality.

7.2.b. The name of the proposed economic opportunity development district.

7.2.c. The date the certificate was issued.

7.2.d. The base tax revenue amount.

7.2.e. The gross annual district tax revenue amount.

7.2.f. The estimated net annual district tax revenue, which is calculated in accordance with W. Va. Code §8-38-7(e).

W. Va. Code R. § 145-12-8 Re-certification Enlarging Geographical Boundaries

8.1. If the Director approves an application to expand the geographical boundaries of a previously certified district, the Director shall issue to the applicant a written certificate evidencing approval of the expansion.

8.2. The certificate shall expressly state all items identified in subsection 7.2 of this rule.

145CSR12

145CSR12

Series 14 County Economic Opportunity Development Districts

W. Va. Code R. § 145-14-1 General

1.1. Scope. -- This procedural rule governs the establishment of economic opportunity development districts and establishes the procedures, standards, legal documents, fees and notice applicable to an applicant for the establishment of an economic opportunity development district.

1.2. Authority. -- W. Va. Code §7-22-7.

1.3. Filing Date. -- September 3, 2013.

1.4. Effective Date. -- November 4, 2013.

W. Va. Code R. § 145-14-2 Definitions

For purposes of this rule:

2.1. “Applicant” means a county having established an economic opportunity development district in accordance with W. Va. Code §7-22-4 who is applying or has applied to the Director of the Development Office for approval of an economic opportunity development district project.

2.2. “Application” means a request from a county for approval of an economic opportunity development district project that is filed with the Director of the Development Office pursuant to W. Va. Code §7-22-7 and this rule, which provides all of the information and documentation required by this rule.

2.3. “Certificate of project” means a written statement issued to an applicant by the Director of the Development Office pursuant to W. Va. Code §7-22-7(e) and that evidences the Director’s approval of the applicant’s project application.

2.4. “Department of Commerce” means the Department of Commerce created in the executive branch of state government in W. Va. Code §5F-1-2(a).

2.5. “Development expenditures” means payments for government functions, programs, activities, facility construction, improvements and other goods and services which a district board is authorized to perform or provide pursuant to W. Va. Code §7-22-5.

2.6. “Development Office” means the West Virginia Development Office created in W. Va. Code §5B-2-1 et seq., which is an agency that is incorporated in and administered as part of the Department of Commerce, as provided in W. Va. Code §5B-1-2.

2.7. “Director” means the Executive Director of the West Virginia Development Office.

2.8. “District” means an economic opportunity development district pursuant to W. Va. Code §7-22-4.

2.9. “District Board” means a district board created pursuant to W. Va. Code §7-22-10.

2.10. “Eligible property” means any taxable or exempt real property located in a district established pursuant to W. Va. Code §7-22-4.

2.11. “Remediation” means measures undertaken to bring about the reconditioning or restoration of property located within the boundaries of an economic opportunity development district that has been affected by exploration, mining, industrial operations or solid waste disposal and which measures, when undertaken, will eliminate or ameliorate the existing state of the property and enable the property to be commercially developed.

2.12. “Special District Excise Tax” means an excise tax imposed by ordinance upon the privilege of selling tangible personal property and rendering select services to a district and levied by a county having been authorized to impose the tax by the West Virginia Legislature for the benefit of an economic opportunity development district.

2.13. “West Virginia Code” or “W. Va. Code” means the Code of West Virginia, one thousand nine hundred thirty-one, as amended.

W. Va. Code R. § 145-14-3 Contents of Application

An application for establishment of an economic opportunity development district shall, at a minimum, include the following:

3.1. The applicant’s name.

3.2. The applicant’s current address.

3.3. The applicant’s telephone number, facsimile number and e-mail address.

3.4. The name of the proposed economic opportunity development district.

3.5. A true copy of the notice of hearing described in W. Va. Code §7-22-6.

3.6. The total cost of the project.

3.7. A reasonable estimate of the number of months needed to complete the project.

3.8. A general description of the capital improvements, additional or extended services and other proposed development expenditures to be made in the district as part of the project.

3.9. A description of the proposed method of financing the development expenditures, together with a description of the reserves to be established for financing ongoing development expenditures necessary to permanently maintain the optimum economic viability of the district following its inception; provided that the amount of the reserves may not exceed the amounts that would be required by prevailing commercial capital market considerations.

3.10. A description of the sources and anticipated amounts of all financing, including, but not limited to, proceeds from the issuance of any bonds or other instruments, revenues from the special district excise tax and enhanced revenues from property taxes and fees.

3.11. A description of the financial contribution of the county to the funding of development expenditures.

3.12. Identification of any businesses that the county expects to relocate their business locations from the district to another place in the state in connection with the establishment of the district or from another place in this state to the district; provided that for purposes of this rule, any entities shall be designated as “relocated entities.”

3.13. Identification of any business currently conducting business in the proposed economic opportunity development district that the county expects to continue doing business there after the district is created.

3.14. A good faith estimate of the aggregate amount of consumer sales and service tax that was actually remitted to the Tax Commissioner by all business locations identified as provided in 3.12. and 3.13. of this rule with respect to their sales made and services rendered from their then current business locations that will be relocated from, or to, or remain in the district for the twelve full calendar months next preceding the date of the application; provided that for purposes of this article, the aggregate amount is designated as “the base tax revenue amount.”

3.15. A good faith estimate of the gross annual district tax revenue amount.

3.16. Documents and facts showing for the proposed project;

3.16.a. How the project addresses economic problems in the area in which the project will be located.

3.16.b. A cost benefit analysis showing all costs and benefits both public and private.

3.16.c. The amount of private sector investment in the project and documents and fact which support a finding that without the support of sales tax increment financing the project would not be feasible.

3.16.d. How the economic opportunity districts excise tax dollars will leverage or be a catalyst for the effective use of private, other local government, or state or federal funding that is available.

3.16.e. Substantial and credible evidence that the project will be started and completed in a timely manner.

3.16.f. Which show that the project will directly or indirectly improve opportunities in the project area for the successful establishment or expansion of other industrial or commercial businesses.

3.16.g. How the project will directly or indirectly assist in the creation of additional long term employment opportunities in the area and the quality of jobs created in all phases of the project including wages and benefits.

3.16.h. If a project will meet any pressing need for the area or part of the area in which the economic opportunity district is located.

3.16.i. Whether the county commission has a strategy for economic development in the county and whether the project is consistent with that strategy.

3.16.j. How the project helps to diversify the local economy.

3.16.k. How the project is consistent with the goals of this article.

3.16.l. Whether the project is economically and fiscally sound using recognized business standards of finance and accounting.

3.16.m. The ability of the county commission and the project developer or project team to carry out the project:

3.17. The proposed applications of any surplus from all funding sources to further the objectives of W. Va. Code §7-22-1 et seq. and this rule.

3.18. The Tax Commissioner’s certification of:

3.18.a. The amount of consumer sales and service tax collected from businesses located in the economic opportunity district during the twelve calendar months preceding the calendar quarter during which the application will be submitted to the Development Office.

3.18.b. The estimated amount of economic opportunity district excise tax that will be collected in the first twelve months after the month in which the Tax Commissioner would first begin to collect the tax.

3.18.c. The estimated amount of economic opportunity district excise tax that will be collected during the first thirty-six months after the month in which the Tax Commissioner would first begin to collect that tax.

3.19. Any additional information that the Development Office may require.

W. Va. Code R. § 145-14-4 Timeline for Processing Applications

4.1. The Development Office shall mark on the application the date it is received from the county.

4.2. The Development Office shall have thirty days from the date of receipt of a complete application or the date of any additional information requested by the Development Office, whichever is later. A complete application is an application that includes all the information required by section three of this rule.

4.3. The Development Office shall review all applications for conformance to statutory and regulatory requirements, the reasonableness of the proposed district project’s budget and timetable for completion and the criteria stated in section 6 of this rule.

4.4. If the application is granted or denied, the Director of the Development Office shall promptly notify the applicant in writing of the decision, which shall be served on the applicant by certified mail, or by facsimile transmission and first class regular mail.

4.5. If the Director requests additional information from the applicant, the request shall be made in writing and served on the applicant by certified mail, or by facsimile transmission and first class regular mail.

4.6. The applicant shall have thirty days from the date of receipt of the request for additional information in which to provide the additional information. Failure to provide the requested additional information within the thirty day time period is cause for denial of the application.

W. Va. Code R. § 145-14-5 Timely filing; performance when last day to act is Saturday, Sunday or holiday of the State

5.1. If any document required by this rule to be filed with the Director within a prescribed period or on or before a prescribed date, is delivered in person on or before such date to the Development Office in Charleston, West Virginia, during normal business hours of the Development Office, it shall be timely filed.

5.2. If any document required by this rule to be filed with the Director within a prescribed period or on or before a prescribed date, is after such period or such date, delivered by United States mail to the Director, the date of the United States Postal Service postmark stamped on the cover in which such document is mailed is the date of delivery, provided the following mailing requirements are met:

5.2.a. The postmark date falls within the prescribed period or on or before the prescribed date for filing of the document.

5.2.b. The document was within the time prescribed in subdivision 5.2.a., deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the Director or the Development Office.

5.3. For purposes of this section, if any document is sent by United States registered or certified mail, the date of registration or certification is the postmark date.

5.4. When the last day to act falls on a Saturday, Sunday or legal holiday in this State, the act shall be timely if done in the next day that is not a Saturday, Sunday or legal holiday in this State.

W. Va. Code R. § 145-14-6 Criteria for considering applications

The Director of the Development Office shall use the following criteria when determining whether to grant or deny an application for establishment of an economic opportunity development district:

6.1. The quality of the proposed project and how it addresses economic problems in the area in which the project will be located.

6.2. The merits of the project determined by a cost-benefit analysis that incorporates all costs and benefits, both public and private.

6.3. Whether the project is supported by significant private sector investment and substantial credible evidence that, but for the existence of sales tax increment financing, the project would not be feasible.

6.4. Whether the economic opportunity development district excise dollars will leverage or be the catalyst for the effective use of private, other local government, state or federal funding that is available.

6.5. Whether there is substantial and credible evidence that the project is likely to be started and completed in a timely fashion.

6.6. Whether the project will, directly or indirectly, improve the opportunities in the area where the project will be located for the successful establishment or expansion of other industrial or commercial businesses.

6.7. Whether the project will, directly or indirectly, assist in the creation of additional long-term employment opportunities in the area and the quality of jobs created in all phases of the project, to include, but not limited to, wages and benefits.

6.8. Whether the project will fulfill a pressing need for the area, or part of the area, in which the economic opportunity district is located; provided that the Development Office should consider whether the economic development project is large enough to require that it contain a mixed used development provision consisting of a housing component with at least ten percent of the housing units in the district allocated for affordable housing.

6.9. Whether the county has a strategy for economic development in the county and whether the project is consistent with that strategy.

6.10. Whether the project helps to diversify the local economy.

6.11. Whether the project is consistent with the goals of W. Va. Code §7-22-1 et seq.

6.12. Whether the project is economically and fiscally sound using recognized business standards of finance and accounting.

6.12.a. Whether the project will provide in the relevant time periods of twenty-four or forty-eight months, the minimum capital investment required by W. Va. Code 7-22-7(a)(13).

6.13. Provided, that no project may be approved by the development office unless the amount of all development expenditures proposed to be made in the first twenty-four months following the creation of the district results in capital investment of more than $75 million in the district and the county submits clear and convincing information, to the satisfaction of the development office, that the investment will be made if the development office approves the project and the Legislature authorizes the county commission to levy an excise tax on the sale of goods and services made within the economic opportunity district.

6.14. Provided, that no project involving remediation may be approved by the Development Office unless the amount of all development expenditures proposed to be made in the first forty-eight months following the creation of the district results in capital investment of more than $75 million in the district and unless the county commission submits clear and convincing information, to the satisfaction of the development office, that the proposed remediation expenditures to be financed by the issuance of bonds or notes pursuant to section sixteen of this article do not constitute more than twenty-five percent of the total development expenditures associated with the project.

6.15. Any other criteria that the Development Office establishes.

W. Va. Code R. § 145-14-7 Certification of Project

7.1. If the Director approves an application, the Director shall issue the applicant a written certificate evidencing the Director’s approval.

7.2. The certificate shall expressly state the following:

7.2.a. The name of the county.

7.2.b. The name of the proposed economic opportunity development district.

7.2.c. The date the certificate was issued.

7.2.d. The base tax revenue amount.

7.2.e. The gross annual district tax revenue amount.

7.2.f. The estimated net annual district tax revenue, which is calculated in accordance with W. Va. Code §7-22-7(e).

W. Va. Code R. § 145-14-8 Re-certification Enlarging Geographical Boundaries

8.1. If the Director approves an application to expand the geographical boundaries of a previously certified district, the Director shall issue to the applicant a written certificate evidencing approval of the expansion.

8.2. The certificate shall expressly state all items identified in subsection 7.2 of this rule.

145CSR14

145CSR14

Economic Development, WV Department of Economic Development, WV Department of

Series 15 Small Business Innovation Research and Small Business Technology Transfer Matching Funds Program

W. Va. Code R. § 145-15-1 General

1.1. Scope. -- This legislative rule establishes the procedures and guidelines for determining the eligibility of a West Virginia business to participate in the West Virginia Small Business Innovation Research and Small Business Technology Transfer Matching Funds Program pursuant to W.Va. Code §5B-8-1 et seq.

1.2. Authority. -- W. Va. Code §5B-8-2.

1.3. Filing Date. -- May 16, 2023.

1.4. Effective Date. -- May 16, 2023.

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect upon August 1, 2028.

W. Va. Code R. § 145-15-2 Purpose

2.1. The West Virginia Small Business Innovation Research and Small Business Technology Transfer Matching Funds Program is established. It shall be administered by the Department of Economic Development. The purpose of this matching funds program is to foster job creation and economic development in the state. The Department of Economic Development may provide grants to eligible small businesses to prepare a competitive Phase I proposal, or match funds they receive from Small Business Innovation Research or Small Business Technology Transfer Phase I and Phase II awards. The Department of Economic Development will pay the grants from the fund known as the "Entrepreneurship and Innovation Investment Fund" created pursuant to W.Va. Code §5B-2-16.

W. Va. Code R. § 145-15-3 Definitions

3.1. “Department” means the West Virginia Department of Economic Development.

3.2. “SBIR” means the Small Business Innovation Research Program enacted under the Small Business Innovation Development Act of 1982, Pub. L. 97-219, 15 U.S.C. §638.

3.3. “STTR” means the Small Business Technology Transfer Program enacted under the Small Business Technology Transfer Act of 1992, Pub. L. 102-564, 15 U.S.C. §638.

3.4. “Small business” means a corporation, partnership, limited liability company, statutory or common law business trust, sole proprietorship, or individual, operating a business for profit, which qualifies as a small business and otherwise meets the requirements of the SBIR or STTR programs.

3.5. “West Virginia-based business” means a business that has its principal place of business in this state.

3.6. “West Virginia SBIR/STTR matching funds program” means the program funded by the State of West Virginia, Department of Economic Development which matches federal SBIR/STTR awards.

W. Va. Code R. § 145-15-4 Creating a Matching Program

4.1. The West Virginia SBIR/STTR matching funds program shall be administered by the Department.

4.2. In order to foster job creation and economic development in the state, the Department may provide grants to eligible small businesses to prepare a competitive Phase I proposal, or to match funds they receive from Small Business Innovation Research or Small Business Technology Transfer Phase I and Phase II awards.

4.3. The Department will pay the grants from the fund known as the “Entrepreneurship and Innovation Investment Fund” created pursuant to §5B-2-16 of this code.

W. Va. Code R. § 145-15-5 Eligibility

5.1. In order to be eligible for a grant under this article, a small business must satisfy all of the following conditions:

5.1.1. The small business must be a for-profit, West Virginia-based business;

5.1.2. For the Phase I and/or Phase II Matching program the small business must have received a SBIR/STTR Phase I or SBIR/STTR Phase II award from a participating federal agency in response to a specific federal solicitation.

5.1.2.a. To receive the full match for the Phase I award, the small business must also have submitted a final Phase I report, demonstrated that the sponsoring agency has an interest in a Phase II proposal, and submitted a Phase II proposal to the agency;

5.1.2.b. To receive the Phase II match, the small business must have submitted the final progress report to the funding agency;

5.1.3. The small business must satisfy all federal SBIR/STTR requirements;

5.1.4. The small business shall not receive concurrent funding support from other sources that duplicates the purpose of this article;

5.1.5. The small business must certify that at least 51 percent of the research described or to be described in the federal SBIR/STTR Phase II proposal will be conducted in this state and that the small business will remain a West Virginia-based business for the duration of the SBIR/STTR Phase II project; and

5.1.6. The small business must demonstrate its ability to conduct research in its SBIR/STTR Phase II proposal.

W. Va. Code R. § 145-15-6 Application Process

6.1. The Department shall accept applications from West Virginia-based businesses for potential participation in the West Virginia SBIR/STTR matching funds program during the periods of January 1 – 31 and July 1 – 31 each year.

6.2. A small business shall apply, under oath, to the Department on forms prescribed by the Department that include at least the following:

6.2.1. The name of the small business, the form of business organization under which it is operated, and the names and addresses of the principals and management of the small business;

6.2.2. For matching awards, notice of award from the funding agency of the SBIR/STTR Phase I or Phase II award;

6.2.3. For matching awards, study section evaluation and comments; and

6.2.4. Any other information necessary for the Department to evaluate the application.

6.3. The Department shall review the application, determine whether the applicant satisfies the eligibility requirements, and determine whether to award matching grants.

W. Va. Code R. § 145-15-7 Grant terms

7.1. The Department may award a “WV Phase Zero Grant” of $2500 upon submission of a Phase I SBIR/STTR proposal or Fast track SBIR/STTR proposal.

7.1.1. The WV Phase Zero grant shall be remitted to the small business upon notification from the granting agency of the receipt of a submission for an SBIR/STTR Phase I or SBIR/STTR fast track application. The small business must provide satisfactory evidence to the Department of the notification of receipt.

7.1.2. A small business may receive only one WV Phase Zero Grant per year.

7.1.3. A small business may receive only one WV Phase Zero Grant with respect to each federal proposal submission; resubmissions of unsuccessful applications are not eligible.

7.1.4. Over its lifetime, a small business may receive a maximum of five WV Phase Zero awards.

7.1.5. A grant recipient may assign an award only upon the prior written consent of the Department.

7.2. The Department may award grants to match funds received by a small business through a SBIR/STTR Phase I proposal up to a maximum of $100,000 paid in two remittances.

7.2.1. Fifty percent of the award under this subsection shall be remitted to the small business upon receipt of the SBIR/STTR Phase I award and an application to the Department for the funds.

7.2.2. The remaining fifty percent of the award under this subsection shall be remitted to the small business upon submission by the small business of:

7.2.2.a. A Phase II application to the funding agency;

7.2.2.b. Acceptance of the Phase I report by the funding agency; and

7.2.2.c. Application to the Department for the funds.

7.2.3. A small business may receive only one grant under this subsection per year.

7.2.4. A small business may receive only one grant under this subsection with respect to each federal proposal submission.

7.2.5. Over its lifetime, a small business may receive a maximum of five awards under this subsection.

7.2.6. A grant recipient may assign the award only upon the prior written consent of the Department.

7.3. The Department may award grants to match the funds received by a small business through a SBIR/STTR Phase II proposal up to a maximum of $100,000 per year for up to two years, after application to the Department.

7.3.1. The second remittance may be made to the small business on the one-year anniversary of the first matching remittance under this subsection, if applicant applies for the funds with documentation from the agency indicating that the grant is to continue for a second year.

7.3.2. A small business may receive only one grant under this subsection per year.

7.3.3. A small business may receive only one award under this subsection with respect to each federal proposal submission.

7.3.4. Over its lifetime, a small business may receive a maximum of five awards under this subsection.

7.3.5. A grant recipient may assign the award only upon the prior written consent of the Department.

Series 16 Tourism Development Districts

W. Va. Code R. § 145-16-1 General

1.1. Scope. -- This legislative rule governs the establishment of Tourism Development Districts and establishes the procedures, standards, legal documents, fees and notice applicable to an applicant for the establishment of a Tourism Development District.

1.2. Authority. – W. Va. Code §5B-1-9.

1.3. Filing Date. – June 12, 2026.

1.4. Effective Date. – June 12, 2026.

1.5. Sunset Provision. This rule shall terminate and have no further force or effect on August 1, 2031.

W. Va. Code R. § 145-16-2 Purpose

2.1. Tourism Development Districts shall be authorized and administered by the Department of Commerce. The purpose of a Tourism Development District is to induce and assist tourism development located entirely or partially in municipalities with two thousand (2,000) residents or less in West Virginia and to promote uniform and consistent application of the Act.

W. Va. Code R. § 145-16-3 Definitions

For purposes of this rule:

3.1. “Act” means the West Virginia Tourism Development District Act set forth in W. Va. Code §5B-1-9.

3.2. “Applicant” means an Approved Company that is applying or has applied to the Development Office for establishment of a Tourism Development District and which has entered into a TDA Agreement with the Development Office pursuant to W. Va. Code §5B-2E-6 to design, acquire, construct, and equip a Tourism Development Project or a Tourism Development Expansion Project.

3.3. “Application” means an application for establishment of a Tourism Development District that is filed with the Director of the Development Office pursuant to W. Va. Code §5B-1-9 and this rule, which provides all the information and documentation required by this rule.

3.4. “Application Fee” or “Fees” means the fee provided for in section five of this rule.

3.5. “Approved Company” means any eligible company approved by the Development Office pursuant to W. Va. §5B-2E-3 seeking to design, acquire, construct, and equip a Tourism Development Project or a Tourism Development Expansion Project.

3.6. “Approved Costs” or “Project Costs” means:

3.6.1. Obligations incurred for labor and to vendors, contractors, subcontractors, builders, suppliers, delivery persons and material persons in connection with the acquisition, construction, equipping, or installation of a Project;

3.6.2. The costs of acquiring real property or interests in real property and any costs incidental thereto for a Project;

3.6.3. The costs of contract bonds and of insurance of all kinds that may be required or necessary during the course of the acquisition, construction, equipping, or installation of a Project which is not paid by the vendor, supplier, delivery person, contractor or otherwise provided;

3.6.4. All costs of architectural and engineering services, including, but not limited to estimates, plans and specifications, preliminary investigations and supervision of construction, installation, as well as for the performance of all the duties required by or consequent to the acquisition, construction, equipping, or installation of a Project;

3.6.5. All costs required to be paid under the terms of any contract for the acquisition, construction, equipping, or installation or installation of a Project;

3.6.6. All costs required for the acquisition, construction, equipping, or installation of Infrastructure on the real property on which the Project is located, or necessary to provide such services to the Project; and

3.6.7. All other costs comparable with those described in this subdivision.

3.7. “Control” means with respect to a corporation, ownership, directly or indirectly, of stock possessing fifty percent (50%) or more of the total combined voting power of all classes of the stock of the corporation entitled to vote. “Control” means with respect to a trust, ownership, directly or indirectly, of fifty percent (50%) or more of the beneficial interest in the principal or income of the trust. The ownership of stock in a corporation or of a capital or profits interest in a partnership or association or of a beneficial interest in a trust is determined in accordance with the rules for constructive ownership of stock provided in section 267(c) of the United States Internal Revenue Code of 1986, as amended, other than paragraph (3) of that section.

3.8. “Department of Commerce” means the Department of Commerce created in the executive branch of state government in W. Va. Code §5F-1-2(a).

3.9. “Department of Transportation” means the Department of Transportation created in the executive branch of state government in W. Va. Code §5F-1-2(a).

3.10. “Designee” means any officer or employee of the Director of the Development Office or the Secretary of Commerce, duly authorized, directly, or indirectly by one or more redelegations of authority, to perform the functions mentioned or described in this rule.

3.11. “Development Office” means the West Virginia Development Office created in W. Va. Code §5B-2-1 et seq., which is an agency that is incorporated in and administered as part of the Department of Commerce, as provided in W. Va. Code §5B-1-2.

3.12. “Director” means the Executive Director of the West Virginia Development Office.

3.13. “Economic Development Project and/or Plan” means written and graphic material for provision of a Tourism Development Project or Tourism Development Expansion Project that at a minimum includes the following information:

3.13.1. Name, address and phone number of property owner(s).

3.13.2. Name, address and phone number of property developer (if not the owner).

3.13.3. Name of the development project, date, direction, and scale.

3.13.4. Date Economic Development Plan was prepared.

3.13.5. Name, address and phone numbers of project architect(s), engineer(s) and landscape architect(s).

3.13.6. Intended land-use or nature of development.

3.13.7. Vicinity map showing general location, surrounding property and major physical features.

3.13.8. General layout of property showing shape, approximate dimensions, and total acreage.

3.13.9. A conceptual site development plan showing alignment of building(s), what developer anticipates will be the use of the building(s) and any phases of the project, if the project will be done in phases.

3.13.10. A description of the infrastructure that will be provided by the developer.

3.14. “Infrastructure” includes, but is not limited to, broadband Internet, electric lines, natural gas or propane lines, water lines, water storage and treatment facilities, fiber optic communication lines, sewer lines, sewer treatment facilities, storm water management and control facilities, electrical power facilities, solar power generation facilities, roads, streets, turn lanes, traffic signals, bridges, sidewalks, pedestrian trails, bike paths, parking lots, parking structures, curbs, gutters, street lighting, street signage, and street scaping located within the Tourism Development District, or located outside the Tourism Development District but necessary to serve the Project. “Infrastructure” does not include customer charges for connection to a utility or charges for the utility service used to consumed by the utility customer.

3.15. “Own or control the property in the Tourism Development District” means that the Applicant or a related person as defined in this rule shall own, control, or have the right of use to all real property located within the proposed Tourism Development District.

3.16. “Person” includes any natural person, corporation, partnership, or entity treated as a partnership for federal and state income tax purposes.

3.17. “Project” means a Tourism Development Project and/or a Tourism Development Expansion Project for which a Tourism Development District is proposed or for which the Director of the West Virginia Development Office has approved the creation of a Tourism Development District.

3.18. “Related person” means:

3.18.1. A corporation, partnership, or entity treated as a partnership for federal and state income tax purposes, or an association or trust controlled by the Applicant;

3.18.2. An individual, corporation, partnership, or entity treated as a partnership for federal and state income tax purposes, or an association or trust that is in control of the Applicant;

3.18.3. A corporation, partnership, or entity treated as a partnership for federal and state income tax purposes, or an association or trust controlled by an individual, corporation, partnership, or entity treated as a partnership for federal and state income tax purposes, or by an association or trust that is in control of the Applicant; or

3.18.4. A member of the same controlled group as the Applicant.

3.19. “Secretary of Commerce” means the chief executive officer of the Department of Commerce, or his or her designee.

3.20. “Significant economic development activity” means:

3.20.1. Total private real and personal property investment in a project that is in excess of twenty-five million dollars ($25,000,000), through acquisition of real property, infrastructure, new construction, reconstruction, installation of fixtures, and equipping of the Project; and

3.20.2. Creation of additional annual payroll within the Tourism Development District in excess of one million dollars ($1,000,000).

3.21. “Site” means the real property owned or controlled by the Approved Company, or real property for which the Approved Company has the right of use, in the proposed Tourism Development District which is subject to a TDA Agreement; provided, however that the Site may include public rights of way and easements, specifically including, but not limited to roads, sidewalks, and bridges.

3.22. “TDA Act” means the West Virginia Tourism Development Act set forth in W. Va. Code §5B-2E-1, et seq.

3.23. “TDA Agreement” means a Tourism Development Agreement entered into, pursuant to W. Va. Code §5B-2E-6, between the Development Office and an Approved Company with respect to a Tourism Development Project or Tourism Development Expansion Project.

3.24. “Tourism Development District” means an area designated by the Director of the Development Office, pursuant to W. Va. Code §5B-1-9 and in accordance with this rule, where a Tourism Development Project or Tourism Development Expansion Project is to be acquired, constructed, equipped, developed, expanded, and operated, and which satisfies the following criteria:

3.24.1. The Tourism Development District shall be entirely or partially within the corporate limits of a municipality which has a population of two thousand (2,000) or less as of the most recent census, as specified in W. Va. Code §8-1-4;

3.24.2. The Applicant shall designate the boundaries of the proposed Tourism Development District;

3.24.3. The Approved Costs of the Project shall equal or exceed twenty-five million dollars ($25,000,000); and

3.24.4. The Applicant shall have a TDA Agreement with the Development Office for the Project.

3.25. “Tourism Development District Agreement” means an agreement entered into between the Development Office and Approved Company, pursuant to the Act, which agreement sets forth the agreement of the parties thereto for the design, acquisition, construction and equipping, and all permits and regulations related to the subsequent operation, of the Project.

3.26. “Tourism Development Expansion Project” shall have the meaning defined in W. Va. Code §5B-2E-3.

3.27. “Tourism Development Project” shall have the meaning defined in W. Va. Code §5B-2E-3.

3.28. “West Virginia Code” or “W. Va. Code” means the Code of West Virginia, one thousand nine hundred thirty-one (1931), as amended.

W. Va. Code R. § 145-16-4 Content of Application

An application for establishment of a Tourism Development District shall include the following:

4.1. The Applicant’s name.

4.2. The Applicant’s current address.

4.3. The Applicant’s contact person, including, telephone number, facsimile number, and e-mail address.

4.4. A copy of the TDA Agreement with the Development Office entered into pursuant to W. Va. Code §5B-2E-6.

4.5. The name of the proposed Tourism Development District.

4.6. A general description of the Site proposed to be designated a Tourism Development District, which shall include, at a minimum, the following:

4.6.1. A written description of the Site that includes any city, county, and street addresses, but does not require a metes and bounds legal description;

4.6.2. The deed book and page number for each parcel of real property that is part of the Site; and

4.6.3. The tax map and parcel number for each parcel of real property that is part of the Site.

4.7. A map showing the boundaries of the Tourism Development District.

4.8. Documentation establishing that as of the date of the Application the Applicant owns or controls, or has right of use of, all of the real property to be included in the proposed Tourism Development District, provided, however that public property, public rights of way and easements, specifically including, but not limited to, roads, sidewalks, and bridges may be included within the boundaries of the Tourism Development District.

4.9. Documentation of financial ability of the Applicant to undertake and complete the design, acquisition, construction, installation, and equipping of the proposed Project and, subsequently, to operate the proposed Project.

4.10. A traffic study performed by a recognized traffic consultant if (a) the Economic Development Project will directly and indirectly employ more than two hundred (200) employees who will work in the district once the Economic Development Project is finished, or (b) if more than two hundred (200) individuals will reside in the district once the Economic Development Project is completed, or (c) if any combination of residents and employees exceeds two hundred (200) persons in the aggregate.

4.11. A true copy of the Economic Development Plan including an estimated breakdown of Project costs.

4.12. If the Project infrastructure will tie in to a public or private utility, a letter from the utility or utilities serving the area in which the Economic Development Project is located certifying the following:

4.12.1. They have reviewed and approved all plans and specifications for the Project’s infrastructure applicable to the utility to determine that the infrastructure conforms to the utility’s reasonable requirements and, when the infrastructure consists of water transmission or distribution facilities, that the infrastructure will provide for adequate fire protection for the district; and

4.12.2. If the infrastructure is built in conformance with said plans and specifications, the utility will accept the improvements following their completion.

4.13. Facts and documents demonstrating that designation of a site as a Tourism Development District will create significant economic development activity, including, but not limited to:

4.13.1. Estimated total number of jobs to be created in the Tourism Development District.

4.13.1.a. Estimated number of construction jobs over the life of the Project;

4.13.1.b. Estimated number of permanent jobs and estimated annual payroll once the Project is completed and all buildings are occupied;

4.13.1.c. Estimated number of temporary and seasonal jobs once the Project is completed and all buildings to be occupied are occupied; and

4.13.1.d. Estimated number of part-time jobs once the Project is completed and all buildings are occupied.

4.13.2. Estimated annual state and local taxes the Project will generate, during construction, design and equipping, and subsequent operation, thereof, including:

4.13.2.a. Estimated business and occupation tax to be paid to the municipality in which the Project is wholly or partially located;

4.13.2.b. Estimated personal income taxes that will be paid by employees working in the Tourism Development District once the Project is completed, based on the payroll of the District;

4.13.2.c. Estimated ad valorem real and personal property taxes paid in the District; and

4.13.2.d. Estimated hotel occupancy taxes to be paid in the District.

4.14. The rules, regulations, standards, processes, or procedures which the Applicant proposes to be agreed to by and between the Applicant and the Development Office for design, acquisition, construction, installation and equipping, and subsequent operation, of the Project with respect to the following:

4.14.1. Building codes (shall not be less restrictive than the building codes of the State of West Virginia);

4.14.2. Land use and permitting;

4.14.3. Historic preservation and viewshed (shall not be less restrictive than the requirements of the West Virginia State Office of Historic Preservation);

4.14.4. Demolition permitting (may be equivalent to the standards of the county in which the Project is located);

4.14.5. Noise ordinance;

4.14.6. Lighting and/or “dark skies” ordinance;

4.14.7. Regulation of alcoholic liquor, nonintoxicating beer or wine for consumption in the Tourism Development District (shall not be less restrictive than the laws and regulations of the State and the West Virginia Alcohol Beverage Control Administration); and

4.14.8. Inspection during acquisition, construction, installation and equipping of the Project.

4.15. The form of public notice regarding the application to be provided by the Development Office pursuant to this Rule.

4.16. A proposed form of Tourism Development District Agreement.

4.17. Documentation that the Applicant is in compliance with the TDA Agreement between the Development Office and the Approved Company and the requirements of W. Va. Code §5B-2E-1, et seq.

4.18. Applicant shall demonstrate that the Applicant has attempted to work in good faith with local officials in regard to land-use issues by submission of the following:

4.18.1. A copy of the original land use plan submitted to the local land use officials;

4.18.2. A copy of any and all amended or revised land development plan and plat submitted to the local land use officials, with a cover document highlighting the major difference(s) between each version of the land use plan; and

4.18.3. A nonbinding review of the existing planning and zoning ordinances of any municipality located in the proposed Tourism Development District.

4.19. The Applicant may refer to and/or rely upon the application it submitted to the Development Office prior to being designated as an Approved Company pursuant to W. Va. Code §5B-2E-1, et seq. to satisfy some or all of the requirements set forth in this section.

4.20. Applicant agrees to an ongoing obligation to supplement any information required in this rule and shall promptly correct any errors or update information contained in its Application.

W. Va. Code R. § 145-16-5 Application fee

5.1. All costs for the application process shall be borne by the Applicant and such cost shall be negotiated between the Development Office and the Applicant but shall be not less than ten thousand dollars ($10,000) or more than one hundred thousand dollars ($100,000). The amount of such fee shall include costs of any outside vendor which the Development Office shall determine necessary to assist the Development Office in the review of the Application and the implementation of the rules, regulations, standards, processes, or procedures which the Development Office approves pursuant to this rule for design, acquisition, construction, installation and equipping, and subsequent operation, of the Project.

5.2. If the application is withdrawn by the Applicant before the Development Office begins its review of the application, the application fee shall be refunded to the Applicant. If the application is withdrawn after the Development Office has begun review of the application, no portion of the application fee shall be refunded to the Applicant.

W. Va. Code R. § 145-16-6 Timeline for processing application

6.1. The Development Office shall mark on the application the date it is received by the Development Office.

6.2. The Development Office shall have ninety (90) days after it physically receives a complete application to establish a Tourism Development District in which to approve the application and establish the district, deny the application, or request additional information from the Applicant. A complete application is one which provides all of the information required by section four of this rule.

6.3. If the application is approved and the district is established, or if the application is denied, then the Director of the Development Office shall promptly issue a notice of decision notifying the Applicant in writing of the decision, which shall be served on the Applicant by certified mail, electronic-mail, or by facsimile transmission and first-class regular mail.

6.4. If the Director requests additional information from the Applicant, the request shall be made in writing and served on the Applicant by certified mail, electronic-mail, or by facsimile transmission and first-class regular mail.

6.5. The Applicant shall have thirty (30) days from date of receipt of the request for additional information in which to provide the additional information.

6.6. When the additional information is provided within the applicable thirty-day period, the Director shall have thirty (30) days after physical receipt of the additional information to act on the application or the balance of the original ninety-day period to act on the application, whichever is longer.

W. Va. Code R. § 145-16-7 Timely filing and paying; performance when last day to act is Saturday, Sunday or holiday in this State

7.1. Delivery in person. If any document required by this rule to be filed with the Director of the Development Office, or any payment required to be made, within a prescribed period or on or before a prescribed date, is delivered in person on or before such date to the Development Office, it shall be timely filed.

7.2. Timely mailing If any document required by this rule to be filed with the Director of the Development Office, or any payment required to be made within a prescribed period or on or before a prescribed date under authority of this rule, is, after such period or such date, delivered by United States mail to the Director of the Development Office, the date of the United States Postal Service postmark stamped on the cover in which such document or payment is mailed is the date of delivery or the date of payment as the case may be, provided the following mailing requirements are met:

7.2.1. The postmark date falls within the prescribed period or on or before the prescribed date for filing of the document or for making payment, and

7.2.2. The document or payment was, within the time prescribed in subdivision 7.2.1. deposited in the mail in the United States in an envelope or other appropriate wrapper, postage prepaid, properly addressed to the Development Office.

7.3. Registered and certified mailing. For purposes of this section, if any document or payment is sent by United States registered or certified mail, the date of registration or certification is the postmark date.

7.4. Time for performance. When the last day to act falls on a Saturday, Sunday, or legal holiday in this State, the act shall be timely if done on the next day that is not a Saturday, Sunday, or legal holiday in this State.

W. Va. Code R. § 145-16-8 Public notices

8.1. Within fourteen (14) days after receipt of any application for establishment of a Tourism Development District, the Director of the Development Office shall solicit written comment from the public either in support of or opposition to the proposed Tourism Development District and shall file a notice in the State Register in substantially the same form as follows allowing the public fourteen (14) days from the date of publication of the notice to provide written comment:

TO WHOM IT MAY CONCERN

Notice is hereby given that [Name of Applicant] filed an application with the Director of the West Virginia Development Office on [Month] [Date], [Year]

For establishment of the [Name of District] Tourism Development District. The proposed district consists of [Number] contiguous acres located at [Address] in [Municipality], West Virginia. Included in the application is a plan for development of the district, which is generally described as follows: [Insert brief description of the project, including phases of the project, if any, and the Project’s estimated cost.]

Interested persons may inspect the application during normal business hours of the West Virginia Development Office in Charleston, West Virginia, to the extent inspection is permitted under the State Freedom of Information Act, W. Va. Code §29B-1-1, et seq.

Comments shall be received until _________________,____, via United States mail at the following address:

West Virginia Development Office ATTN: Executive Director State Capitol Complex – Building 3 1900 Kanawha Boulevard E.

Charleston, West Virginia 25305

8.2. The Development Office shall mail a copy of the aforementioned notice to the chief elected official of any municipality located within, or partially within, the proposed Tourism Development District. Such municipality may file statements in support or opposition of the application within fourteen (14) days after the Director’s filing the public notice described in section 8.1. of this rule. A municipality desiring to file such statements, shall submit the statement to the Director of the Development Office in person, by certified mail return receipt requested, by electronic-mail, or by facsimile transmission.

8.3. The Director shall file a copy of the Director’s notice of decision in the State Register within fourteen (14) days after the Director approves the application for the establishment of a district, or denies the application.

W. Va. Code R. § 145-16-9 Criteria for Considering Applications; Tourism Development District Agreement between Development Office and Applicant upon Approval

9.1. The Director of the Development Office shall consider the following criteria when determining whether to approve the application for the establishment of a Tourism Development District:

9.1.1. The approved costs of the Tourism Development Project or Tourism Development Expansion Project must be in excess of twenty-five million dollars ($25,000,000);

9.1.2. The estimated number and type of jobs to be created within the Tourism Development District, specifically including, but not limited to, construction jobs and permanent jobs;

9.1.3. The estimated average annual payroll of the permanent jobs to be created in the Tourism Development District; and

9.1.4. The economic impact on the state and the region in which the Tourism Development District is to be located, specifically including, but not limited to, whether the Tourism Development District will produce significant economic development activity, the extent to which the district will stimulate and support the growth of new or existing businesses located in the county, compete with or compliment existing businesses, improve the opportunities for successful establishment or expansion of other commercial or industrial business, or create additional employment opportunities and diversify the local economy.

9.2. The Development Office shall enter into a Tourism Development District Agreement with the Applicant for each approved Tourism Development District. The Tourism Development District Agreement shall include the following:

9.2.1. A general description of the Site designated as the Tourism Development District, which shall include the following:

9.2.1.a. A written description of the Site that includes any city, county, and street addresses, but does not require a metes and bounds legal description;

9.2.1.b. The deed book and page number for each parcel of real property that is part of the Site;

9.2.1.c. The tax map and parcel number for each parcel of real property that is part of the Site; and

9.2.1.d. A map showing the boundaries of the Tourism Development District.

9.2.2. The rules, regulations, standards, processes, or procedures for design, acquisition, construction, installation and equipping, and subsequent operation, of the Project with respect to the following:

9.2.2.a. Building codes (shall not be less restrictive than the building codes of the State of West Virginia);

9.2.2.b. Land use and permitting;

9.2.2.c. Historic preservation and viewshed (shall not be less restrictive than the requirements of the West Virginia State Office of Historic Preservation);

9.2.2.d. Demolition permitting;

9.2.2.e. Noise ordinance;

9.2.2.f. Lighting and/or “dark skies” ordinance;

9.2.2.g. Regulation of alcoholic liquor, nonintoxicating beer or wine for consumption in the Tourism Development District (shall not be less restrictive than the laws and regulations of the State and the West Virginia Alcohol Beverage Control Administration); and

9.2.2.h. In determining the rules, regulations, standards, processes, or procedures for design, acquisition, construction, installation and equipping, and subsequent operation, of the Project to be required in the Tourism Development District Agreement, the Development Office shall conduct a nonbinding review of the existing planning and zoning ordinances of any municipality in which the Tourism Development District is wholly or partially located.

9.2.3. Procedures for review of design, plans and specification for the construction of, and for inspection during acquisition, construction, installation and equipping of, the Project to ensure compliance with the rules, regulations, procedures, standards, processes, and procedures agreed to in the Tourism Development District Agreement.

9.2.4. Provisions for monitoring on-going compliance during operation of the Tourism Development District with the rules, regulations, procedures, standards, processes, and procedures agreed to in the Tourism Development District Agreement.

9.2.5. Criterion for determining whether the Applicant has attempted to work in good faith with local officials in regard to land use include but are not limited to:

9.2.5.a. The land use plan submitted to local officials.

9.2.5.b. Any revised land use plan submitted to local officials.

9.2.5.c. That the land use plan(s) submitted by the Applicant was rejected or tabled by the local officials, or the local officials refused to consider the land use plan.

W. Va. Code R. § 145-16-10 Duties of Applicant after District is Established

10.1. The owner, operator, or manager, as applicable, and all concessions and licensees thereof, of the Project shall, in the same manner as any other business or commercial venture located within the municipality:

10.1.1. Pay any applicable business and occupation tax;

10.1.2. Collect and remit any applicable municipal sales and use tax;

10.1.3. Pay any applicable ad valorem real and personal property tax consistent with the same millage rates;

10.1.4. Collect and remit any applicable hotel occupancy tax;

10.1.5. Pay any applicable municipal service fees, including, but not limited to, fire, police, sanitation, or city service fees;

10.1.6. Pay any reasonable applicable municipal utility rates, fees, and charges for utilities used or consumed during construction and operation of premises within the Tourism Development District, including, but not limited to, water, sewer, stormwater, and garbage and recycling collection, provided, however, the provider may not charge rates to the premises within the Tourism Development District which are discriminatory;

10.1.6.a. Any rates, fees, and charges for such services shall be based on the cost of providing such service and the municipality shall enter into a contract for each such service with the Approved Company. Any such contracts for water service or sewer service with the municipality shall be subject to review and approval by the Public Service Commission of West Virginia.

10.1.6.b. The Applicant shall only be required to pay any reasonable capacity improvement fee or impact fee to the extent that capital additions, betterments, and improvements must be designed, acquired, constructed, and equipped by the municipality to provide such service to the Project and any such capacity improvement fee or impact fee for water or sewer service may not be discriminatory and shall be subject to review and approval by the Public Service Commission of West Virginia.

10.1.7. Comply with state laws, regulations, and licensure requirements concerning state control of alcoholic liquors pursuant to Chapter 60 of the Code and control of nonintoxicating beer pursuant to W. Va. Code §11-16-1, et seq.;

10.1.8. Be entitled to municipal police protection and municipal fire protection, if available;

10.1.9. Design, acquire, construct, and equip the Project pursuant to the State Building Code in accordance with W. Va. Code §8-12-13 and W. Va. C.S.R. §87-4-1, et seq.; and

10.1.10. Permit inspection of the design, acquisition, construction, and equipping of the Project pursuant to the standards approved by the Development Office.

10.2. The Applicant or any successor to the Applicant shall continue to comply, on an on-going basis, with the requirements of W.Va. Code §5B-2E-1, et seq. and the TDA Agreement and shall file a certification of such compliance with the Director of the Development Office by the last day of each calendar year, commencing the first full calendar year following the calendar in which the parties execute the Tourism Development District Agreement.

W. Va. Code R. § 145-16-11 Vested property right; termination

11.1. When a Tourism Development District is established, the Applicant and any successor to the Applicant shall have a vested property right to undertake and complete the approved elements of the Project, subject to the provisions of the Act and this rule.

11.2. Failure to abide by the terms and conditions of this rule or material failure to complete the Project shall result in revocation of the Tourism Development District and in forfeiture of the right established in this section; provided, however, the Applicant or any successor thereto shall have sixty (60) days to begin to cure any such failure before any such revocation of the Tourism Development District may occur.

11.3. The vesting period within which the approved elements of the Project must be completed is five (5) years from the date the Tourism Development District is established. This five-year period can be extended once for a period of up to a maximum of thirty-six (36) months upon submission of the certification required by subsection 10.2 to the Director stating that the Applicant is seeking an extension. The vesting shall become permanent once eighty percent (80%) or more of the buildings in the Project, based on square footage of space, have been completed, unless the Tourism Development District is sooner terminated as provided in this rule.

11.4. Revocation of the Tourism Development District as provided in this rule or expiration of the five-year vesting period prior to completion of the Project shall not affect the portion of the Project completed before the district is revoked or the five-year vesting period expires. Neither of these events shall affect any construction work in progress, begun before the district is revoked or the five-year vesting period expires except that this grandfather rule shall not apply to any construction work in progress that is not consistent with the application or any change thereto that has been approved in writing by the Director of the Development Office. The revocation of the Tourism Development District shall not impact operation of the portion of the Project for which design, acquisition, construction, or equipping has been completed prior to the revocation of the Tourism Development District or any design, acquisition, construction or equipping which is grandfathered under this rule.

11.5. Each Tourism Development District Shall terminate by operation of law ninety-nine (99) years from the date approved by the Development Office, unless a shorter time period for termination is agreed to by the Applicant and the Development Office.

11.6. A Tourism Development District shall continue to exist beyond the termination or expiration of the Act.

W. Va. Code R. § 145-16-12 Tourism Development Act

12.1. Failure of the Legislature to renew the Tourism Development Act (W. Va. Code §5B-2E-1, et seq.) may not modify or alter the designation and vested rights or any Tourism Development District created prior to the failure of the Legislature to renew the Tourism Development Act and any such Tourism Development District shall continue to exist beyond the potential termination of the Tourism Development Act.

W. Va. Code R. § 145-16-13 Home Rule limited

13.1. Upon the establishment of a Tourism Development District in accordance with this rule, and notwithstanding any provision of the Code to the contrary, or a municipality’s home rule powers with respect to ordinances and ordinance procedures, including any authority pursuant to W. Va. Code §8-1-5a, any Project within a Tourism Development District, is not subject to any municipal:

13.1.1. Zoning, historic preservation, horticultural, noise, viewshed, lighting, development, or land use ordinances, restriction, limitations, or approvals;

13.1.2. Regulation of the sale of alcoholic liquor, nonintoxicating beer, or wine for consumption within the Tourism Development District;

13.1.3. Building permitting, inspection, or code enforcement;

13.1.4. License requirements;

13.1.5. Legal jurisdiction in which the Tourism Development District is entirely or partially located, except as provided in this rule;

13.1.6. Tax, fee, or charge, except as provided in this rule; or

13.1.7. Consent or approval or any state or county action pursuant to the Code, including, but not limited to, for county or state action regarding the establishment of tax increment financing development or redevelopment districts, or the approval of tax increment financing development or redevelopment districts, or the approval of tax increment financing development or redevelopment plans.

W. Va. Code R. § 145-16-14 Cooperation with Other State Agencies

14.1. The Division of Highways, State Department of Transportation may take actions necessary in support of the development of any Tourism Development Project or Tourism Development Expansion Project in a Tourism Development District including, but not limited to, the development or improvement of such highways, road, thoroughfares, and sidewalks within the municipality where the Tourism Development District is partially or entirely located.

W. Va. Code R. § 145-16-15 Maximum number of Districts

15.1. The Development Office may not establish more than five (5) Tourism Development Districts.

W. Va. Code R. § 145-16-16 Orders of the Director are final

16.1. The decision of the Director of the Development Office regarding the establishment of a Tourism Development District is final.

16.2. The Director may terminate a Tourism Development District if he or she determines that the Tourism Development Project or Tourism Development Expansion Project has been abandoned or ceased operations for five (5) consecutive years.

W. Va. Code R. § 145-16-17 Severability

17.1. Pursuant to W. Va. Code §2-2-10, if any provision of this rule or the application thereof to any person or circumstance is held unconstitutional or invalid, the unconstitutionality or invalidity shall not affect other provisions or applications of this rule, and to this end the provisions of this rule are declared to be severable.

Series 17 Purchasing Rule

W. Va. Code R. § 145-17-1 General

Scope. -- This rule establishes the procedures for purchase of commodities and services by the Department of Economic Development pursuant to the purchasing exemption.

Authority. -- W. Va. Code §5B-2-3.

Filing Date. – September 3, 2024.

Effective Date. – October 3, 2024.

W. Va. Code R. § 145-17-2 Definitions

“Agency Delivery Order” means a written order to the vendor against a master agreement authorizing quantities, commodities, and services be delivered in accordance with the terms, conditions, and prices stipulated in the original contract.

“Best Value Procurement” means a purchasing method used in awarding a contract based on evaluating and comparing all established quality criteria where cost is not the sole determining factor in the award.

“Bid” or “Bids” mean anything that a vendor submits in response to a solicitation that constitutes an offer to the State and includes, but is not limited to, documents submitted in response to a request for quotation, proposals submitted in response to a request for proposal, or proposals submitted in response to an expression of interest.

“Capital Improvements” means activities that are directed toward expanding the capacity of an asset or otherwise upgrading it to serve needs different from, or significantly greater than, its current use.

“Department” means the Department of Economic Development, including the Office of the Secretary and the Office of Energy.

“Direct Award” means a procurement method allowing for the non-competitive purchase of commodities or services when only one vendor can supply the needed commodity or service under the circumstances or no other vendor is willing or available to replace the existing vendor without a detrimental effect on the Department.

“Director” means the Secretary of the Department, Deputy Secretary of the Department, or any Director of any section or office within the Department.

“Division of Purchasing” or “Purchasing Division” means the central office within the Department of Administration providing purchasing and travel services to State agencies.

“F.O.B. destination” and “free on-board destination” mean the seller or vendor must transport or pay for the transportation of commodities and services to the point of destination specified in the contract.

“Non-responsible” means not having the capability to fully perform the contract requirements and lacking the integrity and reliability which will assure good-faith performance.

“Maintenance and repairs” means activities directed toward keeping fixed assets in an acceptable condition. Activities include preventative and deferred maintenance; replacement of parts, systems or components; and other activities needed to preserve or maintain the asset.

“Non-responsive” means a bid that fails to conform to the solicitation in all material respects.

“Open End Contract” or “Master Agreement” mean a contract that covers a period of time in which all terms, conditions, and prices are specified for quantity.

“Procurement Officer” means the Procurement Officer of the Department or anyone the Procurement Officer has designated to perform specific tasks or functions.

“Purchasing Liaison” means an employee of the Department that is responsible for the procurement of goods and services for a particular section or office.

“Requisition” means a written or electronic request sent to the Procurement Office for the purchase of commodities and services.

“Secretary” or “Cabinet Secretary” means the Secretary of the Department.

“Section” or “Sections” means any section or office within the Department.

“Stringing” means issuing a series of requisitions or dividing or planning procurements to circumvent competitive bidding or spending thresholds.

“Working days” means Monday through Friday, excluding Saturday, Sunday, state holidays and days that government offices are closed due to declaration of an emergency.

All other terms shall have the same meaning prescribed in W. Va. Code §5A-1-1 and §5A-3-1 et seq.

W. Va. Code R. § 145-17-3 Applicability

This procedural rule applies to the Department of Economic Development and all sections and offices within.

All purchases over $50,000.01 must be approved by the Procurement Officer or his or her authorized designee.

The Procurement Officer may grant permission to approve purchases up to $50,000 to the purchasing liaison for each respective section and office.

All automated systems prescribed by Procurement Office as statewide systems are mandatory for Department sections and offices.

W. Va. Code R. § 145-17-4 Duties of Procurement Officer

Procurement Officer shall:

Ensure that purchases and contracts for commodities and services are based on competitive bids whenever possible.

Establish a list of commodities and services that are not possible to submit for competitive bid by the Department.

Sections and offices may purchase the commodities and services on the list directly from the vendor and are not required to solicit competitive bids for purchase of those items approved by the Procurement Officer. However, competitive bidding is always encouraged.

Section and office requests to add commodities or services to the list must be accompanied by written justification and an explanation of why competitive bids are not possible.

Nothing in this subsection supersedes or replaces the Attorney General’s authority to approve contracts as to form.

Purchase or contract for, in the name of the Department, the commodities and services required by the Department’s sections and offices.

Prescribe the manner in which commodities and services shall be purchased, delivered, stored, and distributed.

Review specifications and descriptions before soliciting bids to ensure specifications and descriptions do not favor a particular brand or vendor.

Accept or reject any and all bids in whole or in part.

Waive minor irregularities in bids or specifications when the Procurement Officer determines such action to be appropriate.

Apply and enforce standard specifications.

Prescribe the amount of deposit or bond to be submitted.

Prescribe in each contract provisions for liquidated damages, remedies, or other damage provisions in the event of vendor default.

Prescribe the manner of inspection for all deliveries of commodities and services.

The Procurement Officer may authorize staff to review, audit, and approve section requests, purchases, and other transactions and performance that fall under the duties of the Procurement Office. Authorized staff shall have access at any and all times to personnel, records, reports, and other documents, as needed. Authorized staff may also provide relevant training for Department personnel.

W. Va. Code R. § 145-17-5 Remedies

The Procurement Officer may require the Department sections attempt to resolve any issues that it may have with the vendor prior to pursuing a remedy contained herein. The Department sections must document any resolution efforts and provide copies of those documents to the Procurement Officer.

Contract Cancellation.

The Procurement Officer may cancel a purchase or contract immediately under any one of the following conditions including, but not limited to:

The vendor agrees to cancellation.

The vendor has obtained the contract by fraud, collusion, conspiracy, or is in conflict with any statutory or constitutional provision of the State of West Virginia.

Failure to honor any contractual term or condition or to honor standard commercial practices.

The existence of an organizational conflict of interest is identified.

Funds are not appropriated, or an appropriation is discontinued by the legislature for the acquisition.

Violation of any federal, state, or local law, regulation, or ordinance.

The Procurement Officer may cancel a purchase or contract for any reason or no reason, upon providing the vendor with 30 days’ notice of the cancellation.

Opportunity to Cure.

In the event that a vendor fails to honor any contractual term or condition, or violates any provision of federal, state, or local law, regulation, or ordinance, the Procurement Officer may request the vendor remedy the contract breach or legal violation within a time frame the Procurement Officer deems appropriate.

If the vendor fails to remedy the contract breach or legal violation or the Procurement Officer determines, at his or her sole discretion, that such a request is unlikely to yield a satisfactory result, then he or she may cancel immediately without providing the vendor an opportunity to perform a remedy.

Re-Award. The Procurement Officer may award a cancelled contract to the next lowest bidder (or next highest scoring bidder if best value procurement) without a subsequent solicitation if the following conditions are met:

The next lowest responsible bidder (or next highest scoring bidder if best value procurement) is able to perform at the price contained in its original bid submission, and The contract is an open-end contract, a one-time purchase contract, or a contract for work which has not yet commenced.

Award to the next lowest responsible bidder (or next highest scoring bidder if best value procurement) will not be an option if the vendor’s failure has in any way increased or significantly changed the scope of the original contract. The vendor failing to honor contractual and legal obligations is responsible for any increase in cost the state incurs as a result of the re-award.

Non-responsible.

If the Procurement Officer believes that a vendor may be non-responsible, the Procurement Officer may request a vendor or Department section provide evidence the vendor either does or does not have the capability to fully perform the contract requirements and the integrity and reliability necessary to assure good faith performance.

If the Procurement Officer determines the vendor is non-responsible, the Procurement Officer shall reject the vendor’s bid and shall not award the contract to that vendor.

A determination of non-responsibility must be evaluated on a case-by-case basis and can only be made after the vendor in question has submitted a bid.

A determination of non-responsibility will only extend to the contract for which the vendor has submitted a bid and does not operate as a bar against submitting future bids.

Suspension by the Department.

The Director may suspend, for a period not to exceed one year, the right of a vendor to bid on procurements issued by the Procurement Office if:

The vendor has exhibited a pattern of submitting bids and then requesting that its bid be withdrawn after bids have been publicly opened. For purposes of this provision, a pattern is two or more instances within a 12-month period.

The vendor has exhibited a pattern of poor performance in fulfilling his or her contractual obligations to the Department. Poor performance includes, but is not limited to, two or more instances of any of the following:

Violations of law, regulation, or ordinance;

Failure to deliver timely;

Failure to deliver quantities ordered;

Poor performance reports;

Failure to deliver commodities or services at the quality level required by the contract; and The vendor has breached a contract issued by the Procurement Office or any section or office and refuses to remedy that breach.

The Director shall suspend from bidding on Department purchases up to one year, any vendor violating the West Virginia Code or rules adopted by the Procurement Office.

Vendor suspension for the reasons listed in subsection 5.6.1. of this rule shall occur as follows:

Upon a determination by the Director that a suspension is warranted, the Director will serve a notice of suspension to the vendor.

A notice of suspension must inform the vendor:

Of the grounds for the suspension;

Of the duration of the suspension;

Of the right to request a hearing contesting the suspension;

That a request for a hearing must be served on the Director no later than five working days of the vendor’s receipt of the notice of suspension;

That when a vendor fails to request a hearing in accordance with paragraph 5.6.2.b.4. of this rule, that failure will be considered a waiver of the right to a hearing and will result in automatic enforcement of the suspension without further notice or opportunity to respond; and That a request for a hearing must include an explanation of why the vendor believes the Director’s asserted grounds for suspension do not apply and why the vendor should not be suspended.

A vendor’s failure to request a hearing in accordance with paragraph 5.6.2.b.4. of this rule will be considered a waiver of the right to a hearing and will result in automatic enforcement of the suspension without further notice or opportunity to respond.

A vendor who files a timely request for a hearing but fails to provide an explanation of why the asserted grounds for suspension are inapplicable or should not result in suspension, may result in denial of the vendor’s hearing request.

Within five working days of receiving the vendor’s request for a hearing, the Director will serve the vendor with a notice of hearing that includes the date, time, and place of the hearing.

The hearing will be recorded, and an official record prepared. Within 10 working days of the conclusion of the hearing, the Director will issue and serve on the vendor a written decision either confirming or reversing the suspension.

A vendor may appeal a decision of the Director to the Cabinet Secretary. The appeal must be in writing and served on the Cabinet Secretary no later than five working days of receipt of the Director’s decision.

A vendor whose right to bid on Department purchases has been suspended by the Director shall have the right to have the Director’s actions reviewed by the Cabinet Secretary, who shall have the power and authority to set aside such suspension.

Any notice or service related to suspension actions or proceedings must be provided by certified mail, return receipt requested.

Vendor Debarment by the Department.

The Procurement Officer has primary responsibility for administering the debarment process. The Procurement Officer’s duties include:

Obtaining lists of vendors declared ineligible under federal laws and regulations;

Notification of the Department sections and offices regarding disbarred vendors;

Compiling and maintaining a current, consolidated list of all vendors that have been disbarred or declared ineligible, the period of such debarment, and the reasons therefor; and Investigating complaints about vendors from the Department and its sections and offices responsible for contracting with vendors for supplies and services.

The Director has primary responsibility for initiating and conducting debarment procedures.

The Director may debar a vendor if the vendor has been declared ineligible to participate in procurement related activities under federal law and regulation, when the vendor’s name appears on the West Virginia Division of Purchasing or United States Excluded Parties List System, on the basis of any one or more grounds for debarment pursuant to W. Va. Code §5A-3-33d, or when any section or office requests debarment of a vendor and the Director finds probable cause for debarment exists.

Vendor debarment shall be conducted according to the following procedures:

The Director shall notify the vendor by certified mail, return receipt requested, of the following:

The reasons for the proposed debarment in sufficient detail to put the vendor on notice of the conduct or transactions upon which the proposed debarment is based;

The causes relied upon for the proposed debarment;

That within 10 working days after receipt of the notice, the vendor may submit in writing information and argument in opposition to the proposed debarment;

The procedures governing debarment decision-making; and The potential effect of the proposed debarment.

A vendor that has received notice of the proposed debarment by certified mail, return receipt requested, must respond to the proposed debarment within 10 working days after receipt of notice or the debarment will be instituted without further notice. A vendor is deemed to have received notice, notwithstanding the vendor’s failure to accept the certified mail, if the letter is addressed to the vendor at its last known address. After considering the matter and reaching a decision, the Director shall notify the vendor of his or her decision by certified mail, return receipt requested.

In any debarment decision, the Director shall make a specific finding, based on the substantial record, whether the public interest requires that the debarment decision extend to all commodities and services of the vendor, or whether the public interest allows the debarment decision to be limited to specific commodities or services. Proof of grounds for debarment must be clear and convincing.

In any debarment decision, the Director shall specify the length of the debarment period. The debarment period must be for the period of time the Director finds necessary and proper to protect the public from an irresponsible vendor.

In the event a vendor wishes to contest the debarment decision, the Director shall decide the matter in accordance with the provisions of W. Va. Code §29A-5-1 et seq.

Any vendor, other than a vendor prohibited from participating in a federal procurement, undergoing debarment proceedings is permitted to continue participating in the Department’s procurement process until a final debarment decision has been reached. Any contract that a debarred vendor obtains prior to a final debarment decision shall remain in effect for the current term but may not be extended or renewed. Notwithstanding the foregoing, the Director may cancel a contract held by a debarred vendor if the Director determines, in his or her sole discretion, that doing so is in the best interest of the Department. A vendor prohibited from participating in federal procurement will not be permitted to participate in the Department’s procurement process during debarment proceedings.

If the Director’s final debarment decision is that debarment is warranted and notice of the final debarment decision is mailed, the Procurement Office shall reject any bid submitted by the debarred vendor, including any bid submitted prior to the final debarment decision if that bid has not yet been accepted and a contract consummated.

Unless the Director determines in writing there is a compelling reason to do otherwise, the Department may not solicit offers from, award contracts to, nor consent to subcontract with a debarred vendor during the debarment period.

The Procurement Officer may not exercise an option to renew or otherwise extend a current contract with a debarred vendor, nor a contract which is being performed in any part by a debarred subcontractor, unless the Director approves the action in writing, based upon compelling evidence for exercise of the option or extension.

The Director may extend the debarment to include a related party of the vendor. The Director shall follow the same procedure, and afford the related party like notice, hearing and other rights, for extending the debarment to the affiliate as provided for under section 5.7. of this rule. For purposes of this subsection, a related party may include:

Spouses, parents, children, siblings, grandparents, or grandchildren of a debarred vendor or individual;

Any individual or entity that partially or completely owns, controls, or influences, or is partially or completely owned, controlled, or influenced by the actions of a debarred vendor or individual;

Entities that are related under common ownership or control with a debarred vendor; or A business entity or individual that has contracted with or employed a debarred vendor or individual to perform work on one or more public contracts.

The Director may reduce the period or extent of debarment, upon the vendor’s request supported by documentation, for the following reasons:

Newly discovered material evidence;

Reversal of the conviction or judgment upon which debarment was based;

Elimination of the causes for which the debarment was imposed; or Other good cause shown, including evidence that the vendor has become responsible.

The Director may extend the debarment period for an additional period if he or she determines the extension is necessary to protect the interests of the Department. Upon the expiration of a debarment period, the Director shall extend the debarment period for any vendor who has not paid all current state obligations for at least the four most recent calendar quarters, exempting the current calendar quarter, and for any vendor who is in default on a repayment agreement with the Department, until such time as the cause for the extended debarment is removed. If the Director extends the debarment period he or she shall follow the same procedures, afford the vendor like notice, hearing, and other rights for extending the debarment as provided for debarment under this section of this rule.

A debarment under this rule may be waived by the Director with respect to a particular contract if he or she determines the debarment of the vendor would severely disrupt the operation of a governmental entity to the detriment of the general public or would not be in the public interest.

Damages.

A vendor who fails to perform as required under a contract shall be liable for actual damages and costs incurred by the state.

If any commodities delivered under a contract have been used or consumed by a section or office and on testing the commodities are found not to comply with specifications, no payment may be approved by the section or office for the merchandise until the amount of actual damages incurred has been determined.

The Department shall seek to collect damages by following the procedures established by the Office of the Attorney General for the collection of delinquent obligations.

W. Va. Code R. § 145-17-6 Registration, Advertising, Bidding, and Award

Registration of Vendors.

All vendors must register through the Vendor Self-Service portal with the Purchasing Division prior to being awarded a contract by the Department. W. Va. Code §5A-3-12 requires the Disclosures of Information, such as ownership, all names under which a vendor is doing business, their physical address and its corporate offices.

Purchasing Division Fee Payment.

All vendors shall pay the Purchasing Division annual registration fee or be exempt from the payment requirement pursuant to W. Va. Code of State Rules, Series 148 Title 1, Purchasing, prior to being awarded a contract by the Department, except that the Procurement Officer may exempt the following categories of vendors from this requirement.

Vendors providing a good or service under a direct award solicitation are not required to pay the registration fee. The fee is considered waived by the Procurement Officer for all direct award providers.

Any vendor can be exempted from paying the registration fee if the Procurement Officer determines that waiving the registration fee would be in the best interest of the Department.

Other registrations, Licenses, etc.

The vendor must be licensed and in good standing in accordance with any and all state and local laws and requirements by any state or local agency of West Virginia, including, but not limited to, the West Virginia Secretary of State’s Office, the West Virginia State Tax Department, West Virginia Office of the Insurance Commissioner, the West Virginia State Auditor, the West Virginia State Treasurer, or other state agencies or political subdivisions prior to being awarded a contract. The vendor must provide all necessary releases to obtain information necessary to verify that the vendor is licensed and in good standing with the above entities.

Failure to Register.

The Procurement Officer is prohibited from awarding any contract to any vendor not properly registered with the Purchasing Division. If a vendor is eligible to be awarded or has been awarded a contract and it is determined that the vendor has failed to comply with the requirements of Section 6. of this rule, the vendor will be given a period of time that the Procurement Officer deems sufficient to cure the failure. If after that period, vendor has not cured the failure, the Procurement Officer may cancel the contract.

Advertising.

Solicitations that exceed $50,000.01 must be advertised using available media such as wvOasis, newspapers, trade journals, or any other media the Procurement Officer considers advisable.

The type and duration of advertising completed is at the Procurement Officer’s discretion.

This provision shall not apply to expressions of interest procured by the sections or offices pursuant to W. Va. Code §5G-1-4 or other solicitations governed by law that mandates certain advertising requirements be met.

Bidding.

The Procurement Office must receive bids from vendors prior to the date and time of the bid closing listed on the solicitation forms provided by the Procurement Office.

The Procurement Officer must reject bids received after the designated time and date. Each vendor is solely responsible for delivering its bid to the Procurement Office.

An authorized representative of the vendor must sign all bids submitted to the Procurement Office. A corporate or other business entity signature without an individual name is not an acceptable signature.

The Procurement Officer may allow bids by electronic transmission as defined in W. Va. Code §5A-1-1(6). Bids by electronic transmission must be received by the Procurement Office prior to the bid closing date and time. A bid will not be considered received until after transmission is completed.

A vendor choosing to submit a bid or a written change to a bid by electronic transmission accepts full responsibility for transmission and receipt of the bid or written change to a bid. The Department accepts no responsibility for the unsuccessful and/or incomplete transmission of bids or changes to bids by electronic transmission. Bids submitted via electronic transmission may not be sealed until received by the Procurement Office. The Procurement Office makes no guarantee of confidentiality when vendors utilize electronic transmission.

Copies of bids may be open for public inspection in the office of the Procurement Office at any time after the completion of the public bid opening. No original bid may be removed from the presence of a Procurement Office representative. The Procurement Officer may prescribe policies to include scanning, copying, or other methods of assuring public access. The files of the Procurement Office are open for public inspection after the award has been made.

A bidder may make a change to a sealed bid before the bid closing. A bidder must submit changes in writing or by electronic transmission to the Procurement Office. To be effective, any change must be received by the Procurement Office prior to the date and time of the bid closing.

The Procurement Officer may reject a bid a vendor declares erroneous after the bid opening, but otherwise appears to be responsive, if all of the following conditions exist:

An error was made;

The error materially affected the bid;

Rejection of the bid would not cause a hardship on the sections or offices involved other than losing an opportunity to receive commodities and services at a reduced cost;

Enforcement of the part of the bid in error would be unconscionable; and In order for the Procurement Officer to reject a bid under this subsection, the public file must contain documented evidence that all of the conditions set forth in this subsection exist.

The Procurement Officer must reject a bid that is found to be non-responsive.

If there is a conflict between the extension price and the unit price in the bid, the unit price prevails.

Vendor must disclose any instance where the vendor’s bid fails to comply with the requirements of the solicitation, which includes but is not limited to, failure to comply with a mandatory requirement or goods or services not meeting the required specifications. If changes are not stated, the Procurement Officer may assume that items offered meet specifications.

Vendors are responsible for the accuracy of the information on and in the bid envelopes.

Vendors may contact the Procurement Office to obtain official bid forms.

All sales to the State of West Virginia are exempt from Consumer Sales Tax or Excise Tax by blanket state exemption and blanket federal exemption.

Awards.

Any award made by the Procurement Officer will be in accordance with the law governing the type of procurement being awarded. The Procurement Officer may make multiple or split awards when it is in the best interest of the Department.

The Procurement Officer may accept or reject, in whole or in part, any bid when the Procurement Officer feels it to be in the best interest of the Department. If any bid is rejected, the Procurement Officer shall place a written explanation in the purchase order file.

When tie bids are received, the Procurement Officer shall break the tie by the flip of a coin, draw of the cards, or any other impartial method considered prudent by the Procurement Officer.

Vendor Preference.

Reciprocal Preference. Reciprocal preference as described in W. Va. Code §5A-3-37(b) applies to commodities. For purposes of application of reciprocal preference, the term commodity will include any contract that involves a commodity being provided to the Department, even if the majority of the contract relates to services. This rule does not apply to construction let to bid under W. Va. Code §5-22-1. Any vendor that desires to receive the reciprocal preference contained in W. Va. Code §5A-3-37(b) must request the preference in writing at the time of bid submission and provide all documentation necessary to prove its status as a resident of West Virginia, as that term is defined in W. Va. Code §5A-3-37(a), at the time of bid submission. That required documentation must include:

A Certificate of Good Standing from the West Virginia Tax Department;

Documentation filed with the Secretary of State showing the state of incorporation, the address of all officers, the corporate headquarters, the address of the principal place of business, and other pertinent information. Entities not required to file with the Secretary of State may provide an affidavit confirming that the headquarters or principal place of business is in West Virginia, along with a copy of a utility bill in the name of the business entity;

A copy of the most recent personal property tax ticket showing taxes have been paid; and An affidavit confirming that the business entity has paid all applicable business taxes imposed by Chapter 11 of the West Virginia Code.

Preference for Motor Vehicles and Construction and Maintenance Equipment and Machinery. Any vendor providing the Department with motor vehicles or construction and maintenance equipment and machinery used in highway and other infrastructure projects that desires to receive the preference contained in W. Va. Code §5A-3-37(c) must request the preference in writing at the time of bid submission and provide all documentation necessary to prove its entitlement to the preference requested at the time of bid submission. Required documentation will vary depending on the preference requested, but acceptable forms of documentation are described below.

Resident Vendor Documentation. A vendor’s status as a West Virginia resident can be proven with the documentation listed in subdivision 6.4.4.a. of this section.

Continuous Residency. Continuous residency of business entities can be established by providing the documentation required in subdivision 6.4.4.a. of this rule for the requisite number of years. Continuous residency for employees can be established by including the number of years of residency in West Virginia for each employee included in the list described in paragraph 6.4.4.b.3. of this subdivision.

Employment. Employment numbers and employment percentages can be verified by submitting a list of employees by first initial and last name and including each employee’s city and state of residence with a sworn statement that the list is complete and accurate.

Ownership. Ownership requirements can be verified by the vendor submitting an affidavit listing each owner and that owner’s ownership share as a percentage of the whole entity.

Veteran Status. Veteran status can be verified by including applicable federal forms that designate the vendor as a veteran.

Requirements for bonds and deposits.

The Procurement Officer shall determine the applicability and amount of bonds or deposit required of a vendor at any time, if it is judged the security is necessary to safeguard the Department from undue risk.

The Procurement Officer may require the vendor to submit a performance bond, litigation bond or other security acceptable to the Procurement Officer, payable to the State of West Virginia. Neither personal checks nor company checks are acceptable.

Vendors can request that bonds or other security be returned after the purpose for which the bond was provided has been fulfilled. Upon confirmation from the sections, offices, or other relevant party that the bond or security in question has fully served its purpose, the Procurement Officer may return the bond or security.

Specification.

Specifications must be written to encourage competition to the fullest extent possible. No person may write specifications, or attempt to influence the drafter of specifications, to limit competition or favor or disfavor a particular brand or vendor. Sections and offices may not use brand or vendor names to restrict competition. If, however, brand names are used to adequately describe a needed commodity or service, the brand or vendor name must be followed by the phrase “or equal’ to promote and encourage competition.

Examples of limiting competition or favoring a brand or vendor include, but are not limited to:

Drafting specifications to match a vendor’s description of its commodity or service to the exclusion of others;

Listing a brand name in specifications without noting that equivalent products will be considered; and Drafting specifications that are so restrictive that only one desired vendor can meet the requirements without adequate justification for the restrictions.

Nothing contained in this section will be construed to prevent sections or offices from drafting specifications with restrictions and mandatory requirements that are necessary to perform the objectives for which the commodity or service is purchased.

Reduced need for training, maintaining consistency in inventory, staff familiarity, and similar other objectives will not be sufficient to justify restrictions in specifications.

Sections and offices that use a brand or vendor name to describe a needed commodity or service must also list in the specifications the mandatory components of that commodity or service that the reference to a brand or vendor name is intended to capture.

A vendor’s equality with the brand or vendor name will be evaluated on the basis of the mandatory components only. If a vendor bids a commodity or service that is equal to the brand or vendor name with regard to all identified mandatory components, the Procurement Officer shall not disqualify the vendor’s bid due to inequality on non-mandatory components.

Any section or office request to disqualify a vendor on the grounds that the vendor has bid an unequal product must be accompanied by written justification listing the mandatory component that is unequal and explaining how the product bid is unequal.

The Procurement Officer may develop standard specifications that will form the basis of Agency contracts used by sections and offices. Standard specifications shall include information relating to the cost of maintenance and expected life of the commodities and services when the Procurement Officer determines there are applicable nationally accepted standards.

The Procurement Office has final approval over specifications and may require the sections or offices modify specifications. In the event the sections or offices refuse to make the required changes, the Procurement Officer is prohibited from issuing a solicitation until the sections or offices provide the Procurement Officer with a written explanation for the refusal that the Procurement Officer deems satisfactory.

Bid Evaluation.

Evaluators of bids must certify that no financial, personal, or other conflict of interest exists relating to any vendor or vendor representative that has submitted a bid. The Procurement Office may develop a form that evaluators can sign for certification purposes of this subsection.

From the time a requisition is submitted to the Procurement Office for public advertisement until an award is made, evaluators and section and office personnel are not permitted to communicate with vendors about the solicitation or any component thereof without prior approval from the Procurement Office.

All communications regarding the solicitation must be directed to the Procurement Office until an award has been made.

Nothing in this subsection, however, shall prevent the evaluators and section and office personnel from communicating with a vendor about existing contracts or other matters unrelated to the solicitation in question.

Deliveries.

Sections and offices are responsible for:

The inspection of commodities and services upon delivery to ensure purchases meet contractual requirements.

Maintaining records of receipt.

Change Orders.

The Procurement Officer has the duty and responsibility to review and approve change orders just as he or she has the duty and responsibility for review and approval of the original contract.

Change order submission.

Sections and offices desiring to make a change to a contract must submit a request for the contract change to the Procurement Office.

Any change order request submitted to the Procurement Office that requires vendor agreement must include the vendor’s agreement in writing.

The Procurement Officer may ask for, and the section and offices must provide, any documentation or further explanation that the Procurement Officer deems necessary to aid in reviewing a change order request.

Rejection.

The Procurement Officer shall reject the change order if upon review he or she determines that:

It has not been properly justified.

Fails to include necessary documentation.

Is or could be construed as an attempt to circumvent the bidding process.

Or is otherwise unfit to be approved.

Change orders must be approved by the Attorney General’s office, as to form, just as the original contract is approved as to form by that office.

Timing of Work.

Sections and offices must not permit vendors to perform work that the sections or offices anticipate will be added to a contract through a change order until such time as the change order has been:

Formally approved by the Procurement Office and the Attorney General’s Office;

Encumbered by the Procurement Office; and Mailed to the vendor.

This subsection related to timing of work does not apply to government construction contracts executed pursuant to W. Va. Code §5-22-1 et seq.

W. Va. Code R. § 145-17-7 Purchasing Methods

Purchases of $50,000 or less.

Sections and offices may make purchases of $50,000 or less per transaction for commodities and services without processing the purchase as a formal solicitation through the Procurement Office, provided the sections and offices adhere to the most current Procurement Office purchasing rule established by the Department.

Sections and offices must keep records of these purchases on file and make them available for public inspection during the normal office hours of the sections and offices.

Sections and offices shall not issue a series of requisitions or divide or plan procurements to circumvent competitive bidding or spending thresholds, otherwise known as stringing.

If a section or office fails to comply with the rule established for purchases of $50,000 or less, the Procurement Officer has the ability to recommend to the Director for approval the following corrective actions:

Suspend or reduce purchasing permission for that section or office.

Require the section or office to provide additional reports and documentation relating to purchases of $50,000 or less for Procurement Office review.

Require the section or office to submit to additional oversight that the Procurement Officer deems appropriate.

Require the section or office personnel responsible for purchases of $50,000 or less participate in remedial training as approved by the Procurement Office.

Purchases in excess of $50,000.01.

Purchases of commodities and services that exceed $50,000.01 shall be made by the Procurement Office.

The use of a purchase order is required for purchases over $50,000.01 and the agency shall continue to submit contracts to the Attorney General’s office for approval.

Open End Contracts and Statewide Contracts.

The Department may secure open end contracts to obtain commodities and services to supply the repetitive needs of the sections and offices in the form of statewide contracts, blanket orders, or section and office contracts.

If the Procurement Officer establishes a Department open end contract or Statewide contract, any section or office covered by the contract is required to use it unless not using the contract would result in a lower purchase price for a comparable commodity.

The Procurement Officer may grant sections and offices a waiver that permits the section or office to purchase from a source other than the open-end contract.

If the Procurement Officer establishes a Department contract, all sections and offices are required to use it.

The Procurement Officer may grant sections or offices a waiver that permits the section or office to purchase from a source other than the Department contract.

Granting of a waiver from an open end, Statewide or Department contract will be considered on a case-by-case basis and will only be granted if the Procurement Officer determines the waiver is in the best interest of the Department. A waiver will only be granted if the section or office can show that any one of the following conditions exist:

The vendor is unable to deliver the commodity or service by the required delivery date, assuming the section or office is not imposing an unreasonable delivery deadline.

The vendor is unresponsive to ordering requests.

The vendor has refused to perform.

Direct Award Procurement.

The Procurement Officer may approve the purchase of commodities and services directly from a vendor as a direct award procurement without competitive bidding if:

The section or office can acquire the good or services from only one source.

The section or office provides written documentation to the Procurement Officer setting forth the basis for the direct award procurement and the specific efforts made to determine the availability of other sources.

Sections and offices are encouraged to solicit competition rather than process a direct award request. The Procurement Officer may reject direct award requests whenever competition is believed to be available.

All direct award requests exceeding $50,000 made to the Procurement Officer shall be publicly advertised and made available for review by vendors registered with the Purchasing Division. Should this advertisement cause inquiry and concern or requests to bid by prospective bidders or other interested parties, the Procurement Officer may:

Reject the direct award request and require the section or office to submit a requisition for public advertisement and formal bidding.

Accept the direct award request and approve the direct award contract.

Take other action as necessary.

The Procurement Officer may require potential direct award requests at any dollar level above $50,000.01 to be subject to review, approval, and processing in the same manner as described in this rule.

The Procurement Officer must issue prior approval or disapproval for the purchase of used equipment directly from the vendor without competitive bids.

If disapproved, the Procurement Officer must return the request to the section or office and direct another method of purchasing.

Notwithstanding the foregoing, approval to purchase used equipment under this subsection is contingent upon meeting all the requirements applicable to direct award procurement.

Emergency Procurement.

Any request to procure specific commodities or services for immediate delivery exceeding $50,000 on an emergency basis must be submitted in writing to the Procurement Office. The Procurement Officer shall review a section or office’s written request and issue written approval or disapproval.

Approval to procure goods or services on an emergency basis will permit the sections and offices to purchase the required goods or services directly from a vendor. Provided, however, the section or office must obtain three bids, if possible. Required documentation must be submitted to the Procurement Office as soon as possible for processing.

What qualifies as an emergency under this section shall be evaluated by the Procurement Officer on a case by case basis, but will at least include:

Unforeseen events or circumstances including delays by vendors, delays in transportation, or an unanticipated volume of work, as well as procurement of specific commodities for immediate delivery related to an official declaration of emergency by the Governor or federal officials.

Emergency purchases are not used for hardship, resulting from neglect, poor planning, or lack of organization by a section or office.

Best Value Procurement.

Best value procurement includes a request for proposal pursuant to W. Va. Code §5A-3-10b or an expression of interest pursuant to W. Va. Code §5G-1-1.

Requests for Quotation are the preferred method and gold standard of procurement, but a section or office may utilize a best value procurement method to procure goods and services, excluding construction.

In order to utilize a request for proposal, the section or office must provide adequate justification explaining why an evaluation based on price and compliance with specification alone would not be adequate.

The Procurement Officer shall review each request to utilize a request for proposal and may permit the use of a request for proposal if he or she determines in writing that it is in the best interest of the Department.

A request for proposal must contain provisions for a two-part evaluation, the first part being technical aspects of the proposal and the second part being cost to the Department.

The two components must then be evaluated based upon the criteria specified in the request for proposal, scored, and combined to form a total score.

The highest scoring vendor will be awarded a contract. No proposal may be evaluated using any criteria other than the criteria specified in the request for proposal.

Expressions of interest may only be used to procure architectural, engineering, or other services pursuant to W. Va. Code §5G-1-1 et seq.

Purchases from contracts issued by other public agencies and entities.

The Procurement Officer may approve a request by a section or office to purchase from, join as a party, or otherwise utilize contracts issued by agencies of the federal government, agencies of other states, other public bodies, or other state agencies.

The Procurement Officer may also sign an agreement with a vendor that has the effect of adding sections or offices to a contract issued by agencies of the federal government, agencies of other states, other public bodies, or other state agencies.

The Procurement Officer may, but is not required to, designate such a contract an agency contract and require that sections and offices utilize it.

The Procurement Officer may also lead, participate in, or join after issuance cooperative purchasing arrangements with other public agencies and entities created by public agencies.

Before undertaking any activity authorized by this section, the Procurement Officer shall determine that the contracts being utilized and/or created are valid, properly awarded, financially advantageous, and comparable to what can be obtained through competitive bidding. The last requirement will be satisfied if the contract was created or is to be created from a competitive procurement method.

The Procurement Officer shall require sections and offices to prove their requests to use such contracts do not conflict with existing contracts the section of office is required to use.

All section and office requests to take an action authorized under this subsection must be submitted in advance to the Procurement Officer with necessary evidence and documentation. The Procurement Officer shall approve only those requests submitted with evidence that justifies use of such contracts. Any request that is not supportable shall be returned to the section or office.

Multiple Awards.

The Procurement Officer may elect to award a contract to more than one vendor when the Procurement Officer determines in writing such action would be in the best interest of the Department. In arriving at that determination, the Procurement Officer will consider the following factors, insofar as they are applicable:

The quality, availability, and reliability of the supplies, materials, equipment, or service and their adaptability to the particular use required;

The ability, capacity, and skill of the bidder;

The sufficiency of the bidder’s financial resources;

The bidder’s ability to provide maintenance, repair parts, and service;

The compatibility with existing equipment;

The need for flexibility in evaluating new products on a large scale before becoming contractually committed for all use; and Any other relevant factors.

In situations where a multiple award is necessary, the Procurement Officer shall place a written explanation into the public file. If a multiple award is requested by a section or office, that section or office must provide written justification to the Procurement Officer. The Procurement Officer’s decision shall be final in all cases.

Negotiation When All Bids Exceed Available Funds.

Sections and offices must submit a valid maximum budgeted amount for each requisition to the Procurement Office. The maximum budgeted amount may not be disclosed to any vendor prior to the bid opening and may not be changed after the bid opening.

If all bids meeting requirements exceed the funds available for the purchase, the Procurement Office may negotiate a lower price within budget with the lowest bidder meeting specifications.

If the negotiation does not lead to the budget amount being met, the Procurement Officer may negotiate a lower price within budget with the next lowest bidder and continue negotiations with participating bidders after negotiations close with the preceding bidder.

In conducting discussions, there may be no disclosure of any information derived from proposals by competing bidders.

If the Procurement Office solicits bids using a best value procurement, and there is more than one bidder, the Procurement Officer may negotiate a lower price with the highest ranked bidder. If the Procurement Officer does not award the contract to the highest scoring bidder, he or she may close negotiations with that bidder and enter into negotiations with the next highest scoring bidder and may continue to do so in like manner with the remaining responsive and responsible bidders.

The Procurement Officer may not extend an offer to any bidder that is not first extended to the prior bidders in order of rank.

Nothing contained herein is intended to supersede requirements contained in W. Va. Code §5G-1-1 et seq.

If a section or office fails to provide a valid maximum budgeted amount, the Procurement Officer shall not permit negotiation.

The Procurement Officer shall determine the method of negotiation.

Discussion and Final Offers.

The Procurement Officer may conduct discussions to obtain best and final offers from bidders to assure full understanding of solicitation requirements.

If the Procurement Officer determines that a best and final offer is necessary from one vendor, all vendors shall be afforded the opportunity to provide best and final offers.

All best and final offers shall be treated like a formal bid, except that advertising is not required.

All bidders must provide their best and final offers to the Procurement Office prior to the date and time specified by the Procurement Officer.

Government construction contracts and supplies and materials to be used in construction are exempt from the provisions of this section.

Contract Management.

For contracts for commodities and services in the amount of $1 million or less, the Procurement Officer may prescribe contract management procedures for all Department contracts, except government construction contracts. These procedures may include, but are not limited to:

Establishing payment benchmarks to assure the Department receives value prior to remitting payment.

Conducting regular meetings between sections and offices and vendors to assess contract performance.

Training Department section and office personnel to manage contracts.

Using the Office of Technology Project Manager for its projects.

For contracts for commodities and services in an amount exceeding $1 million, the following contract management procedures apply.

Post Award Conferences.

The section or office responsible for administering the contract must hold a post award conference with the vendor to ensure a clear and mutual understanding of all contract terms and conditions, and the respective responsibilities of all parties. The agenda for the conference must include, at minimum, the introduction of all participants and identification of Department and vendor key personnel, and discussion of the following items:

The scope of the contract, including specifications of what the section or office is buying;

The contract terms and conditions, particularly any special contract provisions;

The technical and reporting requirements of the contract;

The contract administration procedures, including contract monitoring and progress measurement;

The rights and obligations of both parties and the vendor performance evaluation procedures;

An explanation that the vendor will be evaluated on its performance both during and at the conclusion of the contract and that such information may be considered in the selection of future contracts;

Potential contract problem areas and possible solutions;

Invoicing requirements and payment procedures, with particular attention to whether payment will be made according to milestones achieved by the vendor; and An explanation of the limits of authority of the personnel of both the section or office and the vendor.

The section or office should develop a comprehensive and objective monitoring checklist which:

Measures outcomes;

Monitors compliance with contract requirements; and Assesses vendor performance.

The Procurement Officer will make reports available to the Director and of Administration upon request.

Inspection.

The section or office must inspect all materials, supplies, and equipment upon delivery and again prior to final acceptance to ensure compliance with the contract requirements and specifications.

The section or office must report any discrepancies to the Purchasing Liaison and Procurement Officer immediately.

If unlisted shortages are discovered, the vendor, Purchasing Liaison and Procurement Officer must be notified immediately.

A vendor may be required to pick up any merchandise not conforming to specifications and replace the merchandise immediately.

Substitutions.

Substitution of items called for in a contract is not permitted without the Procurement Officer’s prior approval.

The Procurement Officer will not approve substitution of items unless the substituted items are of equal quality and are offered at the same or lower price.

W. Va. Code R. § 145-17-8 Protests

Submission of a Protest.

Protests based on bid specifications must be submitted no later than five working days prior to bid opening.

Protest of a purchase order or contract awards must be submitted no later than five working days after the award.

The vendor is responsible for knowing the bid opening and award dates. Protests received after these dates may be rejected by the Procurement Officer.

All protests must be submitted in writing to the Procurement Officer in the Procurement Office and contain the following information:

The name and address of the protestor;

The requisition, solicitation, purchase order or contract numbers;

A statement of the grounds of protest;

Supporting documentation, if necessary; and The resolution or relief sought.

Failure to submit this information shall be grounds for rejection of the protest by the Procurement Officer.

Protest Review.

The Procurement Officer, or his or her designee, shall review the matter of protest and issue a written decision.

A hearing may be conducted at the option of the Procurement Officer or assigned designee.

Continuation or delay of a purchase order or contract award is at the discretion of the Procurement Officer.

The Procurement Office may refuse to review any protests when the matter involved is the subject of litigation before a court of competent jurisdiction; if the merits have previously been decided by a court of competent jurisdiction; or if it has been decided in a previous protest by the Procurement Office.

W. Va. Code R. § 145-17-9 Violations

Any person who authorizes or approves a purchase or contract in violation of West Virginia Code or any rule adopted by the Procurement Office may be personally liable for the cost of the purchase or contract. Purchases and contracts violating the West Virginia Code or this rule are void and of no effect. Provided, that the state establishes by a preponderance of the evidence that the individual acted knowingly and willfully.

Any person receiving anything of value from a known interested party in awarding a purchase order is subject to the provisions of the Ethics Act as determined by the Ethics Commission.

W. Va. Code R. § 145-17-10 Encumbrance

Account Designation.

Agency sections must designate the appropriate account from which funds to pay for a contract will be taken prior to a contract being awarded, unless the contemplated contract is a type that cannot be encumbered as determined by the Procurement Officer.

Procurement Office Review.

Prior to issuing a contract, the Procurement Office will verify the amount of funds encumbered is appropriate and the account being encumbered matches what the section or office has requested.

Encumbrance Amounts.

Contracts must be encumbered prior to issuance in the following amounts:

One-time purchase in current fiscal year. Sections or offices seeking a contract for a one-time purchase in the current fiscal year must encumber the full contract amount.

Contract spanning multiple years. Sections or offices seeking a contract that will span multiple fiscal years must encumber at least the amount of funds that will be spent under the contract in the current fiscal year.

Contract to begin in a future year. Sections or offices seeking a contract that will be awarded prior to the end of a current fiscal year but will become effective after that same fiscal year has ended are not required to encumber funds prior to issuance of the contract.

Open-end and statewide contracts. Sections or offices seeking an open-end contract or a statewide contract issued by the Procurement Office are not required to have funds encumbered prior to the issuance of the contract.

W. Va. Code R. § 145-17-11 Exemptions

11.1. Commodities and Services Identified as Impossible to Bid.

11.1.1. Spending unit may purchase commodities and services on the list directly from the vendor without advertisement or bid and are not required to have contracts for the purchase of those items under $50,000. Over $50,000.01 contract documents are required.

11.1.2. Even though competitive bidding is not required for the Impossible to Bid List, the agency must continue to follow documentation requirements associated with the applicable threshold of purchases over $50,000.01 unless otherwise noted with each item. For example, all vendors must complete vendor registration with the Division of Purchasing, Secretary of State Registration, agency Terms and Conditions and the Purchasing Affidavit. The use of a purchase order is required for purchases over $50,000.01 and the agency shall continue to submit contracts to the Attorney General’s office for approval. Governmental entities are not required to register with the Secretary of State’s Office, so the compliance check is not required. Additionally, if the governmental entity is a West Virginia state agency then the Purchasing Affidavit is not required.

11.1.3. Commodities and Services Impossible to bid are as follows:

11.1.3.a. Advertising: This item includes any advertisement placed directly with newspapers, trade magazines, internet publications, social media or billboards. This item includes broadcast television and radio advertisements placed directly with the broadcaster or publisher and program license fees for radio and television. Additionally, this item includes participation fees for trade shows, conferences, or conventions. This item does not include indirect placement, promotional items, or advertising consultant services.

11.1.3.b. Attorneys and Law Firms: This item includes hiring attorneys and law firms in an official attorney-client capacity. Nothing in this item eliminates the approval or oversight residing within the Attorney General’s Office.

11.1.3.c. Governmental Agencies: Governmental entities are not required to register with the Secretary of State’s Office so that compliance check is not required. Additionally, if the governmental entity is a West Virginia state agency then the Purchasing Affidavit is not required.

11.1.3.d. Grants: Any and all state or federal grants awarded to any entity. Also exempt from competitive bidding, except where required by federal regulation, are contracts for commodities or services using federal grant funds for which the state agency receives no benefit. In such cases the spending limit thresholds for federal procurement apply.

11.1.3.e. Hospitality: This item includes expenses for food, beverages, facility rental and entertainment relating to conducting state business.

11.1.3.f. Postage: This item includes stamps and other non-competitive mailing services from USPS but does not include services available from statewide contracts. The Purchase Affidavit and Secretary of State registration are not required for transactions process under this item.

11.1.3.g. Professional Association Dues: This item includes membership fees or association dues for professional associations that perform a licensing, certification or accreditation function for state employees or agencies.

11.1.3.h. Investigative Services: Subject Matter Experts and Witnesses for Administrative Hearing and Legal Proceedings: This items includes obtaining investigative services and the services of a subject matter expert or witness that is intended to help prepare for, or will be utilized in, administrative or legal hearings/proceedings. This item does not include any agency consulting services or former employees retained by their agency or hired by another agency.

11.1.3.i. Subscriptions and publications: This item includes newspapers, textbooks, and publications – electronic and hard copy – purchase directly from the publisher. This item also includes database subscriptions for statical information, labor market data, business intelligence and data analysis. Additionally, this item will include any subscriptions for databases related to any state or federal grant requirement.

11.1.3.j. Training Activities: This item includes lecturers, honorariums, copyrighted test and training materials, test monitors/examination proctors, and registration fees, where competition is not available.

11.1.3.k. Court Ordered Payments: This item includes court order payment. A copy of the court order must be maintained in the agency file, unless sealed and restricted by the respective judge. If the order is sealed and restricted, an explanation must be maintained in the agency file referencing the court order. Court ordered payments are exempt from all documentation requirements.

11.1.3.l. Emergency Services (Non-Construction and Non-Architectural/Engineering): This item includes non-construction and non-A/E services that must be procured on an emergency basis when (1) formal bidding would cause the government to lose the ability to perform some critical function for itself or citizens of the State of West Virginia, or (2) formal bidding would delay a response to a declared state of emergency.

11.1.3.m. Transcripts from Court Reporters Employed by Court, Judge or Opposing Counsel: This item includes transcripts procured from court reporters who are employed by the court, judge or opposing counsel. These transactions are exempted from all documentation requirements.

11.1.3.n. Copies of Government Documents/Records Obtained from the Government: This item includes fees paid to the government entity required to obtain records of court and administrative proceedings as well as documents filed in those proceedings, and charges paid to the government entity for other official documents or records obtained from that government entity. An example are FOIA fees.

11.1.3.o. Commodities or services for a shared facility arrangement with the U.S. Government: Commodities or services contracted by the U.S. Government and provided to a state agency when those commodities or services are: (1) offered as part of a shared facility arrangement, and (2) those commodities or services for the State cannot be easily separated from those for the U.S. Government.

11.1.3.p. Obtaining Commodities through the Federal Surplus Property Program: This item includes requests to obtain federal surplus property through the WV State Agency for Surplus Property (WVSASP). Both the donation and fixed price sale methods of obtaining federal property are included. The agency must facilitate the transaction through the WVSASP. The necessary documentation to facilitate the transaction can be obtained from the WVSASP.

Series 19 Rule Governing the Operation of Motorsports Complexes and Events

W. Va. Code R. § 145-19-1 General

1.1. Scope. -- the following rules govern the operation of a motorsports complex or any motorsports event in West Virginia.

1.2. Authority. -- W. Va. Code §20-19-7.

1.3. Filing Date. – June 17, 2024

1.4. Effective Date. -- June 17, 2024

1.5. Sunset Provision. -- This rule shall terminate and have no further force or effect on August 1, 2029.

W. Va. Code R. § 145-19-2 Definitions

2.1. “Equipment” means personal protective equipment provided by the “motorsports operator” and/or “motorsports facility” to a “participant” for use on the facility. Equipment may include, but not be limited to helmets and harnesses.

2.2. “Motorsport facility" means a speedway or racetrack designed and intended for motorsport activities.

2.3. “Motorsport operator” means any person, partnership, corporation, lessee, or other organization, or any combination thereof offering motorsport activities.

2.4. “Participant” means any person or organization using the services of a motorsport facility including, but not limited to, spectators, vehicle operators using either a personally owned vehicle or a vehicle owned by the motorsport facility, or vehicle passengers using either a personally owned vehicle or a vehicle owned by the motorsport facility.

2.5. “Safety check” means a visual assessment performed by the motorsports facility and/or motorsports operator or a qualified third party appointed by the motorsports facility and/or motorsports operator, to identify any apparent tearing, fraying or other damage to the personal protective equipment, which would be expected to reasonably impact the ability for the item to perform as the manufacturer intended.

2.6. “Racing surface” means a plot of ground or course used for vehicular racing.

2.7. “Sanctioning body” means a regional, national, or international organization, which regularly organizes and operates events including, but not limited to promotional and touring events, time trials, driving schools, or lapping days, which have established and accepted guidelines for the operation of their events.

W. Va. Code R. § 145-19-3 Safety requirements for equipment

3.1. Motorsports facility and/or motorsports operator must ensure a safety check is reasonably completed on all equipment prior to each use.

3.2. Equipment must not be altered or manipulated by the Motorsports facility and/or motorsports operator in any way other than how the manufacturer intended or recommended.

3.3. Motorsports facility and/or motorsports operator is not responsible for safety checks for any equipment not owned by the motorsports facility and/or motorsports operator.

3.4. Equipment provided by the motorsports facility or the motorsports operator must be clearly marked with:

3.4.1. Equipment number.

3.4.2. Date purchased.

3.4.3. Motorsports facility name or logo.

3.5. The motorsports facility or the motorsports operator must maintain an equipment safety log identifying the following:

3.5.1. Equipment number.

3.5.2. Date of last safety check.

3.5.3. Result of safety check.

3.6. Equipment that does not pass the safety check must be disposed of or repaired to meet the safety check before being used again.

3.7. The Department of Economic Development or any inspector employed by or representing the Department may request equipment records during normal business hours. Upon request, the owner shall make the records available to the department or inspector.

3.8. Helmets and eye protection.

3.8.1. Helmet and eye protection requirements shall be governed by the safety procedures and requirements established by the sanctioning body hosting the motorsports events.

3.9. Safety belts, shoulder harness and crotch belt.

3.9.1. Safety belts, shoulder harness, and crotch belt requirements shall be governed by the safety procedures and requirements established by the sanctioning body hosting the motorsport event.

3.10. Seats.

3.10.1. Vehicles participating in promotional and touring events, driver schools, time trials, and lapping days, may utilize the original equipment seat provided by the manufacturer provided it has a headrest of sufficient height to provide head support to the driver.

3.10.2. Vehicles participating in a race or race practice shall be governed by the safety procedures and requirements established by the sanctioning body hosting the motorsport event.

3.11. Clothing requirements; other than drivers.

3.11.1. Clothing requirements for non-drivers shall be governed by the safety procedures and requirements established by the sanctioning body hosting the motorsports event.

3.12. Rollover bars.

3.12.1. Rollover protection is required for all open cockpit or convertible vehicles.

3.12.2. Factory provided rollover protection (production vehicles) may be used for promotional and touring events, time trials, driver schools, and lapping days providing that the height of any vehicle occupant (with helmet) is not higher than the highest point of the factory rollover protection structure.

3.12.3. Convertibles and open vehicles (except motorcycles) in races and race practices shall have a roll bar that is a minimum of one inch above the head of any vehicle driver or instructor.

3.13. Fences.

3.13.1. Fences shall be erected around the perimeter of the road course, with the specific requirements determined by a risk assessment considering the track’s size, terrain, type of racing, and potential hazards.

3.13.2. If the infield of the road course is accessible by spectators or other non-driving participants, multiple access points shall also be provided to allow emergency entry and exit.

3.14. Flag stations and flagmen.

3.14.1. Flag station and flagmen requirements shall be governed by the safety procedures and requirements established by the sanctioning body hosting the motorsports event.

W. Va. Code R. § 145-19-4 Safety requirements for the design of racing surfaces

4.1. All racing motorsports surfaces must be regularly maintained in accordance with the requirements established by the sanctioning body hosting the motorsports event.

4.2. All racing motorsports surfaces shall be free and clear of debris and items that can knowingly cause injury or damage to participants, other than that which is inherent to the type of racing motorsports surface or necessary to the intended use of the racing motorsports surface.

W. Va. Code R. § 145-19-5 Safety requirements for the provision of run-off areas

5.1. All run-off areas at a motorsport facility must be of sufficient size and constructed with materials appropriate for the intended racing events to provide a reasonable expectation of minimizing injury or damage to the drivers and spectators in the event of an off-track excursion.

5.2. Motorsports operators must endeavor to maintain the run-off areas to be free and clear of debris and items which would be expected to cause harm to a driver or spectator.

5.3. Embankments around the run-off areas must be maintained where necessary.

W. Va. Code R. § 145-19-6 Requirements for fire and other emergency services

6.1. Motorsports operators must ensure fire services are available to respond to a fire emergency during appropriate motorsports events.

6.1.1. Fire services provided by a motorsports operator must ensure all emergency equipment meets or exceeds State safety requirements.

6.2. Motorsports operators must ensure emergency medical services are available to respond to a health emergency during motorsports events.

Series 20 Certified Microgrid Development Program

W. Va. Code R. § 145-20-1 General

1.1. Scope -- The following rule governs the petitioning of the Department of Commerce for certification of a microgrid district or certification as a high impact data center.

1.2. Authority -- W. Va. Code §5B-2-21(a) and W. Va. Code §5B-2-21A.

1.3. Filing Date -- April 1, 2026

1.4. Effective Date – April 1, 2026

1.5. Sunset Provision – This rule shall terminate and have no further force or effect on August 1, 2031.

W. Va. Code R. § 145-20-2 Definitions

2.1. "Critical IT load" means that portion of electric power capacity, expressed in terms of megawatts, which is reserved solely for owners or tenants of a data center to operate their computer server and required supporting equipment.

2.2. “Department” means the West Virginia Department of Commerce, as established in W. Va. Code §5B-1-1 et seq.

2.3. "High Impact Data Center" means a facility or group of facilities that:

2.3.1. Consists of one or more parcels in this state, along with the buildings, substations and other infrastructure, fixtures, and personal property located on the parcels;

2.3.2. Is owned, operated, or leased by an entity or affiliated group of entities;

2.3.3. Is used to house and operate equipment that receives, stores, aggregates, manages, processes, transforms, retrieves, researches, or transmits data; or that is necessary for the proper operation of equipment that receives, stores, aggregates, manages, processes, transforms, retrieves, researches, or transmits data;

2.3.4. Has a critical IT load in the aggregate of 90 megawatts total or higher; and

2.3.5. Is placed into service on or after July 1, 2025.

2.4. “Inordinate Burden” means a parcel’s use is so severely restricted that it deprives the owner of nearly all of its economically beneficial use or access of water. 2.5 “Nearly Contiguous Property” means two or more parcels of property forming a group in which the closest point between any parcel and another parcel in the group is no greater than four (4) miles.

2.6. “Ownership Interest” means the right to possess, use, modify or sell real property, but does not include non-possessory interests such as easements or rights-of-way.

2.7. “Secretary” means the Secretary of the Department.

W. Va. Code R. § 145-20-3 Eligibility requirements to petition the Secretary for certification of a microgrid district; Exempt from rule

3.1. Petitioner must meet the following requirements to be eligible to petition the Secretary for certification of a microgrid district:

3.1.1. Petitioner shall be registered with the Secretary of State to do business in West Virginia.

3.1.2. At least 120 days before seeking certification, a Petitioner must make good faith efforts to negotiate for the supply of all or part of its electricity needs for the project from the local distribution electric utility. This requirement does not apply to microgrid districts proposing to produce 300 megawatts or more of electricity or for microgrid districts that are proposing to not be connected in any way to the local distribution electric utility after completion of all construction.

3.1.3. Petitioner shall not have solicited businesses already receiving electric service from a regulated utility in this state to relocate to the proposed certified microgrid district.

3.1.4. Petitioner shall not have entered into any contract, or otherwise committed, to deliver any electricity generated from within the certified microgrid district to any entity outside the microgrid district, except that a maximum of 10% of the electricity generated from within the certified microgrid district may be delivered outside the microgrid district if delivered directly to the wholesale market.

3.1.5. Petitioner must have an ownership interest in, and control over, the real property subject to the microgrid district certification.

3.1.6. The limitations set forth in Sections 3.1.3 and 3.1.4. of this rule do not apply to microgrid districts certified on or before January 1, 2024.

W. Va. Code R. § 145-20-4 Letter of Intent Requirements for Certification of Microgrid District

4.1. Petitioner must seek certification of a microgrid district by submitting a Letter of Intent to the Secretary. Each Letter of Intent shall include the following minimum requirements:

4.1.1. A statement indicating whether more than 70% of the electricity generated within the proposed microgrid district will be consumed by one or more High Impact Data Centers when such data centers are completed and fully operational.

4.1.2. A statement setting forth why the microgrid district is necessary to attract at least two businesses to locate or expand in this state;

4.1.3. A certified map identifying the border of the proposed microgrid district, which said microgrid district shall not exceed 2,250 acres of Nearly Contiguous Property.

4.1.4. An attestation that electricity generated within the microgrid district will be used only within the microgrid district with no more than 10% being delivered outside the microgrid district to the wholesale market.

4.1.5. Documentation evidencing the Petitioner’s good-faith effort to negotiate for the supply of all or part of its electricity needs for the project from the local distribution electric utility. This requirement does not apply to microgrid districts proposing to produce 300 megawatts or more of electricity or for microgrid districts that are proposing to not be connected in any way to the local distribution electric utility after completion of all construction.

4.1.6. Sufficient economic, financial, and engineering information concerning the proposed project with sufficient detail to adequately inform the department of the size, scope, and nature of the target customers of the project, including, without limitation, the:

4.1.6.a. approximate proposed acreage and location;

4.1.6.b. estimated capital investment

4.1.6.c. evidence of Petitioner’s financial capacity to complete the project;

4.1.6.d. estimated project completion date;

4.1.6.e. major project milestones;

4.1.6.f. estimated generation capacity; 4.1.6.g.estimated power loading internal to the microgrid;

4.1.6.h. estimated power, including backup power, needed from the local distribution electric utility;

4.1.6.i. estimated power supplied to the wholesale market;

4.1.6.j. types or sources of each electric power generation unit;

4.1.6.k. proximity to schools, churches, residences, businesses, sites listed on the National Register of Historic Places, and National Historic Landmarks as designated by the National Park Service, and the proposed actions, if any, by Petitioner to offset the potential effects of the microgrid project being developed in close proximity to such locations;

4.1.6.l. existence of any unique physical or geological condition located on any nearly contiguous parcel that may result in the nearly contiguous parcel having an inordinate burden placed upon it as a direct result of the development of the proposed microgrid project, and the proposed actions, if any, by Petitioner to offset the potential inordinate burden.

W. Va. Code R. § 145-20-5 Approval or denial of Microgrid Certification

5.1. Prior to issuing a decision, the Secretary may request additional information, data or verification of the contents of the Letter of Intent from the Petitioner that the Secretary deems necessary to make his or her decision. In the event the Secretary requests additional information, data or verification of the contents of the Letter of Intent from the Petitioner, the Petitioner shall be provided with a reasonable amount of time to deliver the additional information, data or verification of the contents of the Letter of Intent to the Secretary.

5.2. The Secretary may seek assistance in making his or her decision on the certification of a microgrid district from the Division of Economic Development, the Office of Energy, the Public Service Commission, or the Department of Environmental Protection.

5.3. The Secretary shall provide a decision on the request for microgrid certification within two months after the submission of the Letter of Intent. The period by which the Secretary must provide a decision on the request for a microgrid certification may be extended upon request by Petitioner or, when the Secretary has requested additional information, data or verification from the Petitioner, by a number of days equal to the time between the Secretary’s request and the Petitioner’s delivery of the requested information, data or verification.

5.4. The Secretary shall approve the request for certification of a microgrid district if, in the Secretary’s discretion, it would be unreasonable to withhold approval of the proposed certification based on the facts and circumstances presented in the Letter of Intent and any other relevant information the Secretary has obtained.

5.5. If the Secretary, after considering the facts and circumstances presented in the Letter of Intent and any other relevant factor, denies the request for certification of a microgrid district, he or she will explain the reasons for the decision.

5.6. The Secretary’s decision on the request for certification of a microgrid district shall be final and not subject to reconsideration except as set forth in Section 8, below.

5.7. Nothing in this rule is intended to exempt a certificated microgrid district from otherwise applicable state and federal environmental regulations.

W. Va. Code R. § 145-20-6 Conversion of Merchant Plant to Microgrid

6.1. Any existing merchant power plant that desires certification of a microgrid district, but cannot meet the statutory requirements of §5B-2-21(c)(6) because it is contractually obligated or otherwise required to provide more than 10% of the power it generates to the wholesale market, may seek a pre-certification review by the Secretary.

6.2. To request a pre-certification review by the Secretary, a merchant plant must submit a Letter of Intent as required by Section 4.1 of this rule. In addition to the requirements set forth in Section 4.1 of this rule, the merchant plant’s Letter of Intent shall:

6.2.1. Acknowledge that the merchant plant cannot meet the statutory requirements of §5B-2-21(c)(6).

6.2.2. Provide the Secretary with an estimated date by which the merchant plant will be able to meet the statutory requirements of §5B-2-21(c)(6).

6.2.3. Advise whether the merchant plant is seeking a pre-certification meeting with the Secretary to review the merchant plant’s proposed conversion to a microgrid.

6.3. The Secretary shall review the merchant plant’s Letter of Intent and advise the merchant plant within a reasonable time whether the Secretary will provide a pre-certification meeting. If the Secretary decides to provide a pre-certification meeting, the meeting shall be set on a date and at a time determined by the Secretary.

6.4. If after the pre-certification meeting the Secretary determines that the merchant plant would qualify for certification as a microgrid district but for its inability to comply with the provisions of §5B-2-21(c)(6), the Secretary may, in his or her discretion, provide the merchant plant with a non-binding letter advising it of that fact. Such a letter by the Secretary shall be considered as advisory only and shall not confer any rights upon the merchant plant or entitle it to operate as part of a certified microgrid district. If a merchant plant later determines that it can comply with the provisions of §5B-2-21(c)(6), it must resubmit an updated Letter of Intent with the Secretary pursuant to Section 4.1. of this rule.

W. Va. Code R. § 145-20-7 Annual Report

7.1. If Petitioner is granted a microgrid district certification by the Secretary, the Petitioner shall file an annual report with the Secretary setting forth at a minimum:

7.1.1. The total amount of electricity provided monthly by Petitioner to High Impact Data Centers within the certified microgrid district.

7.1.2. The total amount of electricity generated from within the certified microgrid district and delivered monthly outside the certified microgrid district to the wholesale market.

7.1.3. Any change in tenants or customers of the Petitioner within the certified microgrid district.

W. Va. Code R. § 145-20-8 Appeals

8.1. All proceedings in the appeal of the Secretary’s actions concerning a request for microgrid district certification or the proceedings therefore, and any judicial review thereof, shall be conducted in accordance with the provisions of §29A-5-1 et seq. of this code and any procedural rules adopted pursuant thereto.

W. Va. Code R. § 145-20-9 Eligibility requirements to petition the Secretary for certification as High Impact Data Center

9.1. Petitioner must meet the following requirements to be eligible to petition the Secretary for certification as a High Impact Data Center:

9.1.1. Petitioner shall be registered with the Secretary of State to do business in West Virginia.

9.1.2. Petitioner must meet the definition of High Impact Data Center set forth in Section 2.3 of this rule.

W. Va. Code R. § 145-20-10 Petition requirements for certification as High Impact Data Center. 10.1 Petitioner must seek certification as a High Impact Data Center by submitting a Petition to the Secretary within thirty (30) days after Petitioner becomes aware that it will satisfy the definition of High Impact Data Center or Petitioner has satisfied the definition of a High Impact Data Center. Each Petition shall include the following minimum requirements:

10.1.1. An attestation that the Petitioner meets the definition of a High Impact Data Center set forth in Section 2.3 of this rule.

10.1.2. The Petitioner’s proposed critical IT load and total load upon completion of the project.

10.1.3. Sufficient economic, financial, and engineering information concerning the proposed project with sufficient detail to adequately inform the department of the size, scope, and nature of the project, including, without limitation, the:

10.1.3.a. approximate proposed acreage and location;

10.1.3.b. estimated capital investment

10.1.3.c. whether Petitioner has requested a power study from the regulated utility; and if a power study has been so requested, the date, if any, estimated by the regulated utility that electric service will first be delivered to the project;

10.1.3.d. estimated project completion date;

10.1.3.e. major project milestones;

10.1.3.f. proximity to schools, churches, residences, businesses, sites listed on the National Register of Historic Places, and National Historic Landmarks as designated by the National Park Service, and the proposed actions, if any, by Petitioner to offset the potential effects of the High Impact Data Center project being developed in close proximity to such locations; and

10.1.3.g. existence of any unique physical or geological condition located on any nearly contiguous parcel that may result in the nearly contiguous parcel having an inordinate burden placed upon it as a direct result of the development of the proposed High Impact Data Center project, and the proposed actions, if any, by Petitioner to offset the potential inordinate burden.

W. Va. Code R. § 145-20-11 Approval or denial of High Impact Data Center Certification

11.1. Prior to issuing a decision, the Secretary may request additional information, data or verification of the contents of the Petition from the Petitioner that the Secretary deems necessary to make his or her decision. The Secretary may also seek additional information, data, or verification from relevant electric utilities regarding capacity, grid stability, and infrastructure requirements for any Petition related to high impact data center approval. In the event the Secretary requests additional information, data or verification from the Petitioner or the relevant electric utility, the Petitioner or the relevant electric utility shall be provided with a reasonable amount of time to deliver the additional information, data or verification to the Secretary.

11.2. The Secretary shall provide a decision on the request for High Impact Data Center certification within 14 days after the submission of the Petition. The period by which the Secretary must provide a decision on the request for a High Impact Data Center certification may be extended upon request by Petitioner or, when the Secretary has requested additional information, data or verification from the Petitioner or the relevant electric utility, by a number of days equal to the time between the Secretary’s request and the Petitioner’s or the relevant electric utility’s delivery of the requested information, data or verification.

11.3. The Secretary shall approve the request for certification of a High Impact Data Center if, in the Secretary’s discretion, it would be unreasonable to withhold approval of the proposed certification based on the facts and circumstances presented in the Petition and any other relevant information the Secretary has obtained.

11.4. If the Secretary, after considering the facts and circumstances presented in the Petition and any other relevant factor, denies the request for certification of a High Impact Data Center, he or she will explain the reasons for the decision and why approval of the High Impact Data Center certification was not unreasonably withheld.

11.5. The Secretary’s decision on the request for certification of a High Impact Data Center shall be final and not subject to reconsideration except as set forth in section 13, below.

11.6. Nothing in this rule is intended to exempt a certificated High Impact Data Center from otherwise applicable state and federal environmental regulations.

W. Va. Code R. § 145-20-12 Annual Report

12.1. If Petitioner is granted a High Impact Data Center certification by the Secretary, the Petitioner shall file an annual report with the Secretary providing a status update on the project and confirming that it continues to meet the definition of a High Impact Data Center as set forth in Section 2.3 of this rule.

W. Va. Code R. § 145-20-13 Appeals

13.1. All proceedings in the appeal of the Secretary’s actions concerning a request for High Impact Data Center certification or the proceedings therefore, and any judicial review thereof, shall be conducted in accordance with the provisions of §29A-5-1 et seq. of this code and any procedural rules adopted pursuant thereto.

W. Va. Code R. § 145-20-14 Format and filing requirements

14.1. The following format requirements shall apply to all Letters of Intent seeking certification of a microgrid district and all Petitions seeking certification of a High Impact Data Center:

14.1.1. All filings shall be double spaced.

14.1.2. All filings shall be in 12-point, Times New Roman font.

14.1.3. All filings shall be justified and use 1-inch margins.

14.1.4. All filings shall have a limit of 5 pages.

14.2. All Letters of Intent seeking certification of a microgrid district shall be filed with the Secretary prior to Petitioner filing an application for any state or federal permit associated with the microgrid project.

14.3. All Letters of Intent seeking certification of a microgrid district and all Petitions seeking certification of a High Impact Data Center shall be filed with the Secretary via hand delivery or mail service to: Secretary, Department of Commerce, 1900 Kanawha Boulevard East, Building 3, Suite 800, Charleston, WV 25305.

W. Va. Code R. § 145-20-15 Confidentiality

15.1. All Letters of Intent seeking certification of a microgrid district and all Petitions seeking certification of a High Impact Data Center shall be deemed confidential. The Secretary shall institute a process to ensure that such documents are treated as confidential.