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(124th General Assembly)
(Amended Substitute Senate Bill Number 144)
AN ACT
To amend sections 3706.01, 5733.98, and 5747.98 and to
enact
sections 901.13, 1345.021, 5733.46, and
5747.75 of
the
Revised Code to create the Ethanol
Incentive Board,
to
create a tax credit against
corporation
franchise
or income tax liability for
investments
in ethanol
plants whose business plans
have been
approved by the Board, to provide that
ethanol
plants are air quality facilities eligible
for Ohio
Air Quality Development Authority
financing, to declare that it is not an unfair or
deceptive consumer sales practice to fail to
disclose a blending of ethanol into gasoline, and
to declare an emergency.
Be it enacted by the General Assembly of the State of Ohio:
SECTION 1. That sections 3706.01, 5733.98, and
5747.98 be
amended and
sections 901.13, 1345.021, 5733.46, and 5747.75 of
the
Revised
Code
be enacted to read as follows:
Sec. 901.13. (A) As used in this section: (1) "Ethanol" has the same meaning as in section 5733.46 of
the Revised Code. (2) "Facility" means an ethanol production plant that will be
located in this state. (B) There is hereby created the ethanol incentive board. The
board shall consist of the following five members: the director of
agriculture, who shall serve as chairperson of the board, the
director of development, the executive director of the Ohio air
quality development authority, one member appointed by the speaker
of the house of representatives, and one member appointed by the
president of the senate. Initial appointments to the board shall
be made within thirty days of the effective date of this section.
Vacancies shall be filled in the same manner provided for original
appointments. Members of the board shall serve without
compensation. The board shall meet and conduct its business as
directed by the chairperson. The board shall cease to exist
January 1, 2014. (C) The board's sole duty is to review any application that
is submitted to it under this section. The board shall approve an
application only if it determines, by the affirmative vote of all
members of the board, that the applicant's business plan for a
facility meets the requirements established by division (D) of
this section. (D) The owner of a facility may apply to the board, on an
application provided by the director of agriculture, for approval
of the facility's business plan under this section. Within sixty
days of receipt of an application, the board shall determine
whether the applicant's business plan meets the following
requirements: (1) The business plan is for the construction and operation
of a facility. (2) The business plan contains detailed information
regarding: (a) The availability and price of corn in the area where the
facility will be located; (b) The availability and cost of energy needed for operation
of the facility; (c) The availability of water and waste disposal systems in
the area where the facility will be located; (d) The availability of labor and a qualified site manager
for the facility. (3) The business plan analyzes any proposed marketing
agreements for the products produced by the facility.
(4) The facility to be constructed and operated under the
business plan is majority-owned by Ohio farmers or will be prior
to the first day the facility commences production. (5) The business plan meets any other requirements
established by the board under rules adopted in accordance with
division (G) of this section. The board shall issue a certificate of approval for each
application approved under this section, and any taxpayer that
invests money in the facility for which a business plan has been
approved may claim a tax credit for such investment under section
5733.46 or 5747.75 of the Revised Code. (E) Any business plan submitted to the board under this
section is not a public record subject to section 149.43 of the
Revised Code. (F) The board shall notify the tax commissioner of any
certificate of approval issued under this section, within ten days
of its issuance. (G) The director of agriculture, in consultation with the
director of development and in accordance with Chapter 119. of the
Revised Code, shall adopt rules necessary to implement this
section, including rules prescribing procedures and forms for
administering this section. (H) The ethanol incentive board created by this section is
not an agency for purposes of section 101.82 to 101.87 of the
Revised Code.
Sec. 1345.021. (A) As used in this section, "retail dealer"
means a person who owns, operates, controls, or supervises an
establishment at which gasoline is sold or offered for sale to the
public. (B) When ethanol is blended or mixed into gasoline that is
sold or
offered
for sale to the public, it is not an unfair or
deceptive
act or
practice in connection with a consumer
transaction for a
retail
dealer to fail to disclose either of the
following: (1) The fact that the gasoline contains ethanol; (2) The percentage of ethanol that
is
contained in the
gasoline. (C) If a retail dealer elects to disclose any of the
information specified in division (B) of this section, the dealer
may make that disclosure in any form, using any type of sign or
label and any size or style of letters, at the retail dealer's
discretion. (D) A retail dealer shall not be required to disclose the
fact that gasoline contains ethanol and
shall not be required to
disclose the percentage of ethanol in the gasoline by any law,
rule,
resolution, or ordinance of any agency or department of the
state
or any political subdivision of the state.
Sec. 3706.01. As used in this chapter: (A) "Governmental agency" means a department, division, or
other unit of state government, a municipal corporation, county,
township, and other political subdivision, or any other public
corporation or agency having the power to acquire, construct, or
operate air quality facilities, the United States or any agency
thereof, and any agency, commission, or authority established
pursuant to an interstate compact or agreement. (B) "Person" means any individual, firm, partnership,
association, or corporation, or any combination thereof. (C) "Air contaminant" means particulate matter, dust,
fumes,
gas, mist, smoke, noise, vapor, heat, radioactivity,
radiation, or
odorous substance, or any combination thereof. (D) "Air pollution" means the presence in the ambient air
of
one or more air contaminants in sufficient quantity and of
such
characteristics and duration as to injure human health or
welfare,
plant or animal life, or property, or that unreasonably
interferes
with the comfortable enjoyment of life or property. (E) "Ambient air" means that portion of the atmosphere
outside of buildings and other enclosures, stacks, or ducts that
surrounds human, plant, or animal life, or property. (F) "Emission" means the release into the outdoor
atmosphere
of an air contaminant. (G) "Air quality facility" means any
of the following: (1) Any method, modification
or replacement of property,
process, device, structure, or
equipment that removes, reduces,
prevents, contains, alters,
conveys, stores, disperses, or
disposes of air contaminants or
substances containing air
contaminants, or that renders less
noxious or reduces the
concentration of air contaminants in the
ambient air, including,
without limitation, facilities and
expenditures that qualify as
air pollution control facilities
under section 103 (C)(4)(F) of
the Internal Revenue Code of 1954,
as amended, and regulations
adopted thereunder, motor; (2) Motor vehicle
inspection stations operated in accordance
with, and any
equipment used for motor vehicle inspections
conducted under,
section 3704.14 of the Revised Code and rules
adopted under it,
any; (3) Ethanol or other biofuel facilities, including any
equipment used at the
ethanol or other biofuel facility for the
production of ethanol or other biofuels; (4) Any property or portion thereof used for the collection,
storage,
treatment, utilization, processing, or final disposal of
solid
waste resulting from any method, process, device, structure,
or
equipment that removes, reduces, prevents, contains, alters,
conveys, stores, disperses, or disposes of air contaminants, or
that renders less noxious or reduces the concentration of air
contaminants in the ambient air, and any; (5) Any property, device, or
equipment that promotes the
reduction of emissions of air
contaminants into the ambient air
through improvements in the
efficiency of energy utilization or
energy conservation, and. "Air quality facility"
further
including
includes any
property or system to be used in whole or
in part for any of
such
the purposes
in divisions (G)(1) to (5) of this section,
whether
another purpose is also
served, and any property or system
incidental to or
which
that has to
do with, or the end purpose of
which is, any of the foregoing. Air
quality facilities that are
defined in this division for
industry, commerce, distribution, or
research, including public
utility companies, are hereby
determined to be those
which
that qualify as facilities for the
control of air pollution and
thermal pollution related to air
under Section 13 of Article
VIII, Ohio Constitution. (H) "Project" or "air quality project" means any air
quality
facility, including undivided or other interests therein,
acquired
or to be acquired or constructed or to be constructed by
the Ohio
air quality development authority under this chapter, or
acquired
or to be acquired or constructed or to be constructed by
a
governmental agency or person with all or a part of the cost
thereof being paid from a loan or grant from the authority under
this chapter, including all buildings and facilities that the
authority determines necessary for the operation of the project,
together with all property, rights, easements, and interests that
may be required for the operation of the project. (I) "Cost" as applied to an air quality project means the
cost of acquisition and construction, the cost of acquisition of
all land, rights-of-way, property rights, easements, franchise
rights, and interests required for such acquisition and
construction, the cost of demolishing or removing any buildings
or
structures on land so acquired, including the cost of
acquiring
any lands to which such buildings or structures may be
moved, the
cost of acquiring or constructing and equipping a
principal office
and sub-offices of the authority, the cost of
diverting highways,
interchange of highways, and access roads to
private property,
including the cost of land or easements for
such access roads, the
cost of public utility and common carrier
relocation or
duplication, the cost of all machinery,
furnishings, and
equipment, financing charges, interest prior to
and during
construction and for no more than eighteen months
after completion
of construction, engineering, expenses of
research and development
with respect to air quality facilities,
legal expenses, plans,
specifications, surveys, studies,
estimates of cost and revenues,
working capital, other expenses
necessary or incident to
determining the feasibility or
practicability of acquiring or
constructing such project,
administrative expense, and such other
expense as may be
necessary or incident to the acquisition or
construction of the
project, the financing of such acquisition or
construction,
including the amount authorized in the resolution of
the
authority providing for the issuance of air quality revenue
bonds
to be paid into any special funds from the proceeds of such
bonds, and the financing of the placing of such project in
operation. Any obligation, cost, or expense incurred by any
governmental agency or person for surveys, borings, preparation
of
plans and specifications, and other engineering services, or
any
other cost described above, in connection with the
acquisition or
construction of a project may be regarded as a
part of the cost of
that project and may be reimbursed out of the
proceeds of air
quality revenue bonds as authorized by this
chapter. (J) "Owner" includes an individual, copartnership,
association, or corporation having any title or interest in any
property, rights, easements, or interests authorized to be
acquired by this chapter. (K) "Revenues" means all rentals and other charges
received
by the authority for the use or services of any air
quality
project, any gift or grant received with respect to any
air
quality project, any moneys received with respect to the
lease,
sublease, sale, including installment sale or conditional
sale, or
other disposition of an air quality project, moneys
received in
repayment of and for interest on any loans made by
the authority
to a person or governmental agency, whether from
the United States
or any department, administration, or agency
thereof, or
otherwise, proceeds of such bonds to the extent that
use thereof
for payment of principal of, premium, if any, or
interest on the
bonds is authorized by the authority, proceeds
from any insurance,
condemnation, or guaranty pertaining to a
project or property
mortgaged to secure bonds or pertaining to
the financing of the
project, and income and profit from the
investment of the proceeds
of air quality revenue bonds or of any
revenues. (L) "Public roads" includes all public highways, roads,
and
streets in the state, whether maintained by the state,
county,
city, township, or other political subdivision. (M) "Public utility facilities" includes tracks, pipes,
mains, conduits, cables, wires, towers, poles, and other
equipment
and appliances of any public utility. (N) "Construction," unless the context indicates a
different
meaning or intent, includes reconstruction,
enlargement,
improvement, or providing furnishings or equipment. (O) "Air quality revenue bonds," unless the context
indicates a different meaning or intent, includes air quality
revenue notes, air quality revenue renewal notes, and air quality
revenue refunding bonds, except that notes issued in anticipation
of the issuance of bonds shall have a maximum maturity of five
years as provided in section 3706.05 of the Revised Code and
notes
or renewal notes issued as the definitive obligation may be
issued
maturing at such time or times with a maximum maturity of
forty
years from the date of issuance of the original note. (P) "Solid waste" means any garbage; refuse; sludge from a
waste water treatment plant, water supply treatment plant, or air
pollution control facility; and other discarded material,
including solid, liquid, semisolid, or contained gaseous material
resulting from industrial, commercial, mining, and agricultural
operations, and from community activities, but not including
solid
or dissolved material in domestic sewage, or solid or
dissolved
material in irrigation return flows or industrial
discharges that
are point sources subject to permits under
section 402 of the
"Federal Water Pollution Control Act
Amendments of 1972," 86 Stat.
880, 33 U.S.C.A. 1342, as amended,
or source, special nuclear, or
byproduct material as defined by
the "Atomic Energy Act of 1954,"
68 Stat. 921, 42 U.S.C.A. 2011,
as amended. (Q) "Sludge" means any solid, semisolid, or liquid waste,
other than a recyclable byproduct, generated from a municipal,
commercial, or industrial waste water treatment plant, water
supply plant, or air pollution control facility or any other such
wastes having similar characteristics and effects.
(R) "Ethanol or other biofuel facility" means a plant at
which
ethanol or other biofuel is
produced.
(S) "Ethanol" means fermentation ethyl alcohol derived from
agricultural products, including potatoes, cereal, grains, cheese
whey, and sugar beets; forest products; or other renewable or
biomass
resources, including residue and waste generated from the
production, processing, and marketing of agricultural products,
forest products, and other renewable or biomass resources, that
meets all of
the specifications in the American society for
testing and
materials (ASTM) specification D 4806-88 and is
denatured as
specified in Parts 20 and 21 of Title 27 of the Code
of Federal
Regulations. (T) "Biofuel" means any fuel that is made from cellulosic
biomass resources, including renewable organic matter, crop waste
residue, wood, aquatic plants and other crops, animal waste, solid
waste, or sludge, and that is used for the production of energy
for transportation or other purposes.
Sec. 5733.46. (A) As used in this section:
(1) "Ethanol" means fermentation ethyl alcohol derived from
agricultural products, including potatoes, cereal, grains, cheese
whey, and sugar beets; forest products; or other renewable
resources, including residue and waste generated from the
production, processing, and marketing of agricultural products,
forest products, and other renewable resources that meet all of
the specifications in the American society for testing and
materials (ASTM) specification D 4806-88 and is denatured as
specified in Parts 20 and 21 of Title 27 of the Code of Federal
Regulations.
(2) "Certified ethanol plant" means a facility at which
ethanol is
produced and for which a certificate has been issued
under section 901.13 of the Revised Code. (3) "Money" means United States currency, or a check, draft,
or cashier's check for United States currency, payable on demand
and drawn on a bank. (B) Beginning in tax year 2003 and ending in tax year 2013,
there is hereby allowed a nonrefundable credit against the tax
imposed by section 5733.06 of the Revised Code for a taxpayer that
invests money in a certified ethanol plant. The amount of the
credit
equals fifty per cent of the money the taxpayer invests in
the plant, but the credit amount shall not exceed five
thousand
dollars per taxpayer per certified ethanol plant regardless of the number of years in which the taxpayer makes investments. The credit shall be claimed in the tax year immediately
following the calendar year in
which the
investment was made.
(C) The taxpayer shall claim the credit in the order
required by section 5733.98 of the Revised Code. Any credit
amount in excess of the tax
due under section 5733.06 of the
Revised Code, after allowing for any other credits preceding the
credit in that order, may be carried forward for three tax years,
but the amount of the excess credit allowed in any such year shall
be deducted from the balance carried forward to the next year. (D) The tax commissioner may require that the taxpayer
furnish information as is necessary to support the claim for the
credit under this section, and no credit shall be allowed unless
the information is provided.
Sec. 5733.98. (A) To provide a uniform procedure for
calculating the amount of tax imposed by section 5733.06 of the
Revised Code
that is due under this chapter, a taxpayer
shall
claim any credits to which it is entitled in the following order,
except as otherwise provided in section 5733.058 of the Revised
Code: (1) The credit for taxes paid by a qualifying pass-through
entity allowed
under section 5733.0611 of the Revised Code; (2) The credit allowed for financial institutions under
section 5733.45 of the Revised Code;
(3) The credit for qualifying affiliated groups under
section
5733.068 of the Revised Code; (4) The subsidiary corporation credit under section
5733.067
of the Revised Code; (5) The savings and loan assessment credit under section
5733.063 of the Revised Code; (6) The credit for recycling and litter prevention
donations
under section
5733.064 of the Revised Code; (7) The credit for employers that enter into
agreements with
child day-care centers under section 5733.36 of the
Revised Code; (8) The credit for employers that reimburse employee child
day-care
expenses under section 5733.38 of the Revised
Code; (9) The credit for maintaining railroad active grade
crossing
warning
devices under section 5733.43 of the Revised
Code; (10) The credit for purchases of lights and reflectors under
section
5733.44 of the Revised Code; (11) The job retention credit under division (B) of section
5733.0610 of the Revised Code; (12) The credit for manufacturing investments under section
5733.061 of the Revised Code; (13) The credit for purchases of new manufacturing
machinery
and equipment under section 5733.31 or section 5733.311
of the
Revised Code; (14) The second credit for purchases of new
manufacturing
machinery and equipment under
section 5733.33 of the
Revised Code; (15) The job training credit under section 5733.42 of
the
Revised
Code; (16) The credit for qualified research expenses under
section 5733.351 of
the Revised Code; (17) The enterprise zone credit under section 5709.66 of
the
Revised Code; (18) The credit for the eligible costs associated with a
voluntary action under section 5733.34
of the Revised Code; (19) The credit for employers that establish on-site
child
day-care under section 5733.37 of the Revised
Code; (20)
The ethanol plant investment credit under section
5733.46 of the Revised Code; (21) The credit for purchases of qualifying grape
production
property under section 5733.32 of the Revised Code; (21)(22) The export sales credit under section 5733.069 of
the
Revised Code;
(22)(23) The credit for research and development and
technology
transfer investors under section 5733.35 of the Revised
Code;
(23)(24) The enterprise zone credits under section 5709.65
of
the
Revised Code;
(24)(25) The credit for using Ohio coal under section
5733.39
of
the
Revised Code;
(25)(26) The refundable jobs creation credit under
division
(A)
of section
5733.0610 of the Revised Code.
(B) For any credit except the refundable jobs creation
credit, the amount of the credit for a tax year shall not exceed
the tax due after allowing for any other credit that precedes it
in the order required under this section. Any excess amount of a
particular credit may be carried forward if authorized under the
section creating that credit.
Sec. 5747.75. (A) As used in this section:
(1) "Ethanol" means fermentation ethyl alcohol derived from
agricultural products, including potatoes, cereal, grains, cheese
whey, and sugar beets; forest products; or other renewable
resources, including residue and waste generated from the
production, processing, and marketing of agricultural products,
forest products, and other renewable resources that meet all of
the specifications in the American society for testing and
materials (ASTM) specification D 4806-88 and is denatured as
specified in Parts 20 and 21 of Title 27 of the Code of Federal
Regulations. (2) "Certified ethanol plant" means a facility at which
ethanol is
produced and for which a certificate has been issued
under section 901.13 of the Revised Code. (3) "Money" means United States currency, or a check, draft,
or cashier's check for United States currency, payable on demand
and drawn on a bank. (B) Beginning in taxable year 2002 and ending in taxable
year 2012, there is hereby allowed a nonrefundable credit against
the
tax imposed by section 5747.02 of the Revised Code for a
taxpayer
that invests money in a certified ethanol plant. The
amount of the credit
equals fifty per cent of the money the
taxpayer invests in the plant, but the credit amount shall not
exceed five
thousand dollars per taxpayer per certified ethanol plant regardless of the number of years in which the taxpayer makes investments. The credit shall be claimed for the
taxable year
during which the investment was made. (C) The taxpayer shall claim the credit in the order
required by section 5747.98 of the Revised Code. Any credit
amount in excess of the tax
due under section 5747.02 of the
Revised Code, after allowing for any other credits preceding the
credit in that order, may be carried forward for three taxable
years, but the amount of the excess credit allowed in any such
year shall be deducted from the balance carried forward to the
next year. (D) If the taxpayer is a direct or indirect investor in a
pass-through entity that has made an investment under this
section, the taxpayer may claim its proportionate or distributive
share of the credit allowed under this section. (E) The tax commissioner may require that the taxpayer
furnish information as is necessary to support the claim for the
credit under this section, and no credit shall be allowed unless
the information is provided.
Sec. 5747.98. (A) To provide a uniform procedure for
calculating the amount of tax due under section 5747.02 of the
Revised Code, a taxpayer shall claim any credits to which the
taxpayer is
entitled in the following order: (1) The retirement income credit under division (B) of
section 5747.055 of the Revised Code; (2) The senior citizen credit under division (C) of
section
5747.05 of the Revised Code; (3) The lump sum distribution credit under division (D) of
section 5747.05 of the Revised Code; (4) The dependent care credit under section 5747.054 of
the
Revised Code; (5) The lump sum retirement income credit under division
(C)
of section 5747.055 of the Revised Code; (6) The lump sum retirement income credit under division
(D)
of section 5747.055 of the Revised Code; (7) The lump sum retirement income credit under division
(E)
of section 5747.055 of the Revised Code; (8) The credit for displaced workers who pay for job
training under section 5747.27 of the Revised Code; (9) The campaign contribution credit under section
5747.29
of
the Revised Code; (10) The twenty-dollar personal exemption credit under
section 5747.022 of the Revised Code; (11) The joint filing credit under division (G) of
section
5747.05 of the Revised Code; (12) The nonresident credit under division (A) of
section
5747.05 of the Revised Code; (13) The credit for a resident's out-of-state income
under
division (B) of section 5747.05 of the Revised Code; (14) The credit for employers that enter
into agreements
with child day-care centers under section 5747.34 of the
Revised
Code; (15) The credit for employers that reimburse employee
child
day-care
expenses under section 5747.36 of the Revised Code; (16) The credit for adoption of a minor child under section
5747.37 of the Revised Code; (17) The credit for purchases of lights and reflectors under
section
5747.38 of the Revised Code; (18)
The job retention credit under division (B) of section
5747.058 of the Revised Code; (19) The credit for manufacturing investments under
section
5747.051 of the Revised Code; (20) The credit for purchases of new manufacturing
machinery
and equipment
under section 5747.26 or section 5747.261
of the
Revised Code; (21) The second credit for purchases of new
manufacturing
machinery and
equipment and the credit for using
Ohio coal under
section 5747.31 of the
Revised Code; (22) The job training credit under section 5747.39 of
the
Revised Code;
(23) The enterprise zone credit under section 5709.66 of
the
Revised Code; (24) The credit for the eligible costs associated with a
voluntary action
under section 5747.32 of the Revised Code; (25) The credit
for employers that establish on-site
child
day-care centers under section
5747.35 of the Revised Code; (26)
The ethanol plant investment credit under section
5747.75 of the Revised Code; (27) The credit for purchases of qualifying grape
production
property under section 5747.28 of the Revised Code; (27)(28) The export sales credit under section 5747.057 of
the
Revised Code;
(28)(29) The credit for research and development and
technology
transfer investors under section 5747.33 of the Revised
Code;
(29)(30) The enterprise zone credits under
section 5709.65
of
the Revised Code;
(30)(31) The refundable jobs creation credit
under
division
(A)
of section
5747.058 of the Revised Code;
(31)(32) The refundable credit for taxes paid by a
qualifying
entity granted under section 5747.059 of the Revised
Code;
(32)(33) The refundable credits for taxes paid by a
qualifying
pass-through
entity granted under division (J) of
section 5747.08
of the Revised Code.
(B) For any credit, except the refundable credits enumerated
in
divisions
(A)(30),
(31),
and (32), and (33) of this
section
and
the
credit granted under division
(I) of section
5747.08 of
the
Revised Code, the amount of the credit
for a
taxable year
shall
not
exceed the tax due after allowing for any
other credit
that
precedes it in the order required under this
section. Any
excess
amount of a particular credit may be carried
forward if
authorized
under the section creating that credit.
Nothing in this
chapter
shall be construed to allow a taxpayer to
claim, directly
or
indirectly, a
credit more than once for a
taxable year.
SECTION 2. That existing sections 3706.01, 5733.98, and
5747.98 of the
Revised Code are hereby repealed. SECTION 3. This act is hereby declared to be an emergency
measure necessary for the immediate preservation of the public
peace, health, and safety. The reason for such necessity is that
the act is vital to stimulating the state's economy and to
promoting its number one industry, agriculture. It is imperative
that it take effect in time for the spring planting season.
Therefore, this act shall go into immediate effect.
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