5 Colo. Code Regs. § 1002-66.10

Current through Register Vol. 47, No. 11, June 10, 2024

Section 5 CCR 1002-66.10 - FINANCIAL TEST CRITERIA

A permittee or applicant may satisfy the requirements of subsection 61.13 of Regulation No. 61 by satisfying the requirements of this section. After the Division approves the use of the financial test instrument by a permittee or applicant, the requirements of section 66.10 must be met annually by the permittee or applicant.

(1) Financial requirements

To pass the financial test, the applicant or permittee must satisfy the following conditions:

(a) For purposes of the financial test, a permittee or applicant must aggregate all of the cost estimates for either:

(i) All facilities identified in applications and permits submitted by or issued to the permittee or applicant; or,

(ii) A specified subset of the facilities identified in an application or permit submitted by or issued to the permittee or applicant and that is not, and will not be, associated with another financial assurance instrument, in accordance with section 61.13(4)(h)(viii) of Regulation No. 61.

(b) Satisfy both of the following two financial indicators:

(i) A ratio of current assets (which can include the value of breeding swine) to current liabilities at least 1.2; and,

(ii) Tangible net worth at least two times the sum of closure costs.

(c) Have assets located in the United States amounting to at least the sum of closure costs.

(d) Submit to the Division the permittee's or applicant's financial statements for the latest completed fiscal year, in accordance with the following, as applicable:

(i) Public company - A permittee or applicant that is a public company must submit a copy of the company's financial statements and a copy of the independent certified public accountant's report on examination of the permittee or applicant's financial statements for the latest completed fiscal year.

(ii) Subsidiary company - A permittee or applicant that is a subsidiary and incorporates its financial statements into its parent company, must submit the permittee's or applicant's financial statements for the latest completed fiscal year.

(iii) Private company - A permittee or applicant that is a private company must submit a copy of the permittee's or applicant's financial statement for the latest completed fiscal year as submitted to the permittee's or applicant's bank, with an original signature.

(e) A letter that meets the following requirements:

(i) The letter must state that the permittee or applicant meets the conditions of subsection 66.10(1)(a)-(c).

(ii) The letter must include a statement that the permittee or applicant acknowledges that making a false, fictitious, or fraudulent statement in the letter is punishable under the criminal laws of Colorado as perjury under section 18-8-503, C.R.S.

(iii) Public companies

(A) The letter must be worded as specified in Appendix G.

(B) The letter must have an original signature of an officer of the permittee or applicant who has financial responsibility for the permittee or applicant and is authorized to bind the permittee or applicant.

(iv) Subsidiary companies

(A) The letter must be worded as specified in Appendix H.

(C) The letter must state that the subsidiary company's financial statements were appropriately incorporated into the parent company's financial statements.

(D) The letter must state that the subsidiary company's financial statements are what were used for the purpose of satisfying the conditions of subsection 66.10(1).

(E) The letter must state that the subsidiary company's financial statements were prepared in accordance with accounting principles acceptable to the Division.

(v) Private companies

(A) The letter must be worded as specified in Appendix I.

(2) Reporting and other requirements

(a) Annual submittals - After the initial submission of the items specified in subsection 66.10 -(e), the permittee must annually demonstrate that it continues to meet the requirements of subsections 66.10 -(c) by submitting the following documents to the Division within 90 days after the fiscal year end for the permittee:

(i) A letter that meets the requirements of subsection 66.10 , as applicable to the permittee.

(ii) The financial statements for the latest completed fiscal year, in accordance with subsections 66.10 , as applicable to the permittee.

(b) If the permittee no longer meets the requirements of subsections 66.10 -(c), the permittee must immediately send notice to the Division by certified mail of this fact and of its intent to establish alternate financial assurance.

(i) The permittee must provide the alternate financial assurance within 120 days from the end of the permittee's fiscal year. Such financial assurance must meet the requirements of subsections 61.13(4)(h)(iii)-(iv) of Regulation No. 61.

(c) The Division may request reports of financial condition from the permittee at any time in addition to those specified in subsection 66.10 . Such reports must be submitted to the Division within 30 days of the request.

(i) If the Division finds, on the basis of such reports or other information, that the permittee no longer meets the requirements of subsections 66.10 -(c), the Division will so notify the permittee in writing and request to meet with the permittee to review the Division's finding.

(A) If the permittee provides sufficient information to the Division to demonstrate to the Division's satisfaction that the requirements of subsections 66.10 -(c) are met, the Division will allow the permittee to maintain financial assurance by using the financial test instrument.

(B) If the permittee cannot demonstrate to the Division's satisfaction that the requirements of subsections 66.10 (a)-(c) can be met, the permittee must submit to the Division alternate financial assurance within 90 days after notification of such a finding. Such financial assurance must meet the requirements of subsections 61.13(4)(h)(iii)-(iv) of Regulation No. 61.

(3) Confidential business information

(a) Any person, non-publically traded corporation, division of a corporation that does not file separate financial information, or other non-publically traded entity, may claim that certain information submitted to satisfy the financial test is confidential business information, if the following requirements are met:

(i) The person or entity has a reasonable good faith belief that the disclosure of such information would be detrimental to its competitive or business position;

(ii) Each page or portion of a page that is purported to be confidential business information is clearly marked as such by the person or entity;

(iii) The information purported to be confidential business information by the person or entity has not expired by its terms, nor been waived or withdrawn by such person or entity;

(iv) The information purported to be confidential business information is not, and has not been, reasonably obtainable without the person's or entity's consent by other persons (other than governmental bodies) by use of legitimate means (other than discovery based on a showing of special need in a judicial proceedings);

(v) No statute or rule specifically requires the disclosure of the information;

(vi) The person or entity claiming that certain information is confidential business information states in a letter accompanying the business or financial information that the above requirements (i)-(v) have been and are being met for the information that the person or entity is claiming as confidential business information.

(b) If the requirements in subsections (3)(a)(i)-(vi) above are met, the Division will not evaluate such information as confidential business information, but will presume such information is confidential business information.

(c) The Division will separate from its publically available files information marked confidential business information and keep such information in files marked confidential business information.

(d) If the Division receives a request to review information that includes the purported confidential business information files, the Division will respond to such request by stating that the particular information requested that has been marked confidential business information is confidential business information which will not be made available to the requestor.

(e) If the requestor challenges the files identified as confidential business information, the Division will promptly notify the person or entity that has claimed confidential business information for such information. The Division will not release such information unless the person or entity claiming it as confidential business information agrees that it, or any portion of it, can be released or a court of competent jurisdiction orders that such information, or any portion of it, be released.

(4) The Division shall agree to termination of a financial test instrument when the provisions of subsection 61.13 of Regulation No. 61 have been satisfied.

5 CCR 1002-66.10