OAR 123-635-0175: Unique Operations

Under ORS 285C.503(5)(e), a business firm’s operations that comprise a Facility proposed for preliminary certification must be new business operations respective to the site of the Facility and to any other location in this state where the firm also operates, such that: (1) In the case of the business firm itself, the business operations at the Facility must be categorically different from any operations in which that same firm has recently engaged. (As an example, a business firm may receive certification for a Facility that will manufacture or distribute certain products here for the first time, even if the firm already maintained operations in this state for selling its products) (2) In the case where the business firm has 100-percent common equity interest or is under common control (by way of corporate, familial or similar affiliations) with one or more other business firms operating in this state, the business operations at the Facility must be significantly dissimilar from the operations in which any other such firm has recently engaged. (As an example, a corporate subsidiary is certifiable for a new, first-in-Oregon facility fabricating a laminated wood product, even if another wholly owned subsidiary of the same parent company already makes a similar product in this state, but the new operations utilize an advanced generation of technology with which the product has higher performance standards or weight-bearing specifications) (3) Irrespective of section (1) or (2) of this rule, the acquisition of a preexisting Facility does not qualify as new business operations, unless both of the following are satisfied: (a) The business firm invests appreciably in real property or extensively in terms of installing personal property at the Facility after applying for preliminary certification; and (b) The operations that the firm will undertake pursuant to the new investment are significantly dissimilar from operations recently performed at the Facility. (4) For purposes of this rule: (a) “Categorically different” means that the existing, in-state business operations produce, render, deliver or provide essentially another type of good or service for a distinct market segment or customer base. (b) “Recently” means during the 12 months before the date, on which the Department received the application for preliminary certification. (c) “Significantly dissimilar” means that the existing, in-state business operations, or the goods or services arising from them, utilize different technology, processes, delivery methods, points in supply chain, marketing, brand names or the like. (5) How much a Facility’s proposed operations are like those of any other business (even one with partially shared ownership), anywhere in Oregon, does not matter, except as provided under ORS 285C.503(4)(b)(A) and (5)(f) to the extent that the operations will compete with other employers in the local area as addressed in OAR 123-635-0270(4)(b) and (5).