Administrative Rule Review Report  #AR07-053

Legislative Service Office

25-Sep-07

AGENCY: Wyoming Business Council.

DATE SUBMITTED: September 24, 2007.

SUBJECT: Chapters 1 through 3, Business Ready Community Grant and Loan Program.

NATURE OF RULES:                     Legislative.

STATUTORY AUTHORITY:         W.S. 9-12-104(a)(iv), 9-12-601 through 9-12-603 and 2007 Legislative Budget Footnote, Chapter 136, Section 085, paragraph 5.

DETERMINATION OF PROCEDURAL COMPLIANCE BASED UPON INFORMATION

SUBMITTED BY THE AGENCY TO LSO:  Apparently complete to date.

SUMMARY OF RULES:

These are amendments to Wyoming Business Council existing rules Chapter 1, Sections 3, 4, 5, 6, 10, 11, 12, 13 and 14 and Chapter 2, Section 4.  The rule amendments implement the 2007 Legislative Budget Footnote, Chapter 136, Section 085, paragraph 5, developed pursuant to the Business Ready Community Program.  The footnote provides for the making of grants to eligible applicants for the improvement of data generation and information technology storage capabilities, encouragement of expanding existing information technology enterprises, and provision of reduced costs of electrical power and bandwidth, or both.  The amendments provide for a method of application review, recommendation, and establishment of terms and conditions for awards.

The amendments to Chapter 1 (General Provisions), Section 3 (Definitions) creates a definition of "Managed Data Center" and adopts the Uptime Institute, Inc.'s four tiered classification approach to site power infrastructure and other nonsubstantive, structural changes.  Section 4 (Eligible Applicants) is amended to read that a county or an  incorporated city or town may apply for projects outlined in Chapter 2, Sections 1-4, a joint powers board may apply for projects outlined in Chapter 2, Sections 1-3, and the Tribes may enter into a contract/cooperative agreement with the Council to promote and fund infrastructure projects outlined in Chapter 2, Sections 1-3.  Section 5 (Type of Projects) is amended to include a "Managed Data Center Cost Reduction" project as a type of project for which a grant may be made.  Section 10 (Funding Cycles) is amended to provide that a grant and/or loan request for a "Managed Data Center Cost Reduction Project" shall be accepted at any time by the Council and scheduled for review at any meeting and that requests for a "Business Committed" project and a "Managed Data Center Cost Reduction" project which involve the same business must be submitted simultaneously.  Section 11 (Application Procedures)  is amended to allow Council staff to engage a disinterested third party to validate a data center's Tier Level, business plan, or other aspects of an application.  Four new evaluation criteria are added to Section 12 (Application Evaluation), involving recruitment of managed data centers, information technology services at below market value to the state or technology related business in the state, and whether the project will facilitate the expansion or retention of a business developed at the UW Business Technology Center.  Section 12 is also amended to require consultation between Council staff and the Attorney General when evaluating a request to fund a "Managed Data Center Cost Reduction" project in order to determine compliance with Article 16, Section 6 of the Wyoming Constitution.  Section 13 (Grant Match Requirements) requires a private investment of at least 125% of the "Data Center Cost Reduction" grant, and other matching grant requirements.  Section 14 (Fund Disbursement and Project Monitoring) sets a one year time frame for a business receiving a "Managed Data Center Cost Reduction" project to begin business operations and a five year time frame for a business to meet the grant's matching requirement.  Failure to meet the one year deadline results in expiration of the grant; if the matching requirement has not been met after 5 years, the applicant must reimburse the Council for the full amount of the grant award.

Chapter 2 (Business Ready Community Grants), Section 4 (Managed Data Center Cost Reduction Program) states that a "Managed Data Center Cost Reduction" project is one "in which an applicant wants to improve the development, recruitment, or expansion of data generation and information technology storage capabilities at a Tier II, Tier III, or Tier IV level that are otherwise nonexistent or are in insufficient supply."  Section 4 also lists the 3 possible grant amounts, grant disbursements and application submittal requirements.

FINDINGS:

Rules promulgated by the Wyoming Business Council are exempted from the requirements of the Wyoming Administrative Procedures Act, but W.S. 9-12-104(a)(iv) requires the Council to submit rules to the Council in accordance with W.S. 28-9-101 through 28-9-108.  The Council may review the rules under W.S. 28-9-104(c) to determine whether the rules are within the scope of statutory authority, legislative intent, and constitutional requirements.  These rules appear to meet those limited requirements.

STAFF RECOMMENDATION:

That the Council recommend the Governor approves the rules.

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Matthew D. Obrecht

Staff Attorney

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Dan J. Pauli

Director