The following lists documents that provide the statutory and legislative framework for the Title XVII loan guarantee program.
TITLE XVII GOVERNING DOCUMENTS:
• FOUNDATIONAL LEGISLATION, RULES, AND DOCUMENTS
• APPROPRIATIONS
• ADDITIONAL LEGAL REQUIREMENTS
• TITLE XVII RELATED LINKS
• CLOSED SOLICITATIONS
• AMERICAN RECOVERY AND REINVESTMENT ACT
FOUNDATIONAL LEGISLATION, RULES, AND DOCUMENTS
Title XVII of the Energy Policy Act of 2005 (42 USC Sec. 16511, et. seq., Title XVII or the Act) provides the basis for the U.S. Department of Energy Loan Programs Office (LPO). Title XVII provides broad authority for the Department of Energy (DOE or the Department) to guarantee loans for innovative projects.
LPO is currently accepting applications for innovative clean energy projects under Section 1703 of Title XVII in response to open technology-specific solicitations. Section 1705 authorized the Department to issue loan guarantees for U.S.-based projects that commenced construction not later than September 30, 2011 and involved certain renewable energy systems, electric power transmission systems, and leading edge biofuels. LPO is not currently authorized to issue additional loan guarantees under Section 1705.
Final Rule (10 CFR Part 609)
The Innovative Clean Energy Projects loan program under Section 1703 of Title XVII requires compliance with the implementing regulations set forth in Part 609 under Chapter II of Title 10 of the Code of Federal Regulations (10 CFR Part 609, dated October 23, 2007, as amended on December 4, 2009, May 9, 2011 and May 21, 2012, January 17, 2017, the Final Rule). The Final Rule, as amended, is available at the Electronic Code of Federal Regulations.
- Final Rule (January 17, 2017) – On January 17, 2017, the Department having considered all of the comments submitted to DOE in response to the November 2, 2016 NOPR, issued this final rule. The objectives of the revised rule are to eliminate unused provisions and needless hurdles, streamline the application process, improve the user experience, increase transparency, reduce paperwork, and use plain English wherever possible. The risk-based methodology may be applied to any Title XVII application.
- Notice of Proposed Rulemaking (October 3, 2016) – On October 3, 2016, the Department published a Notice of Proposed Rulemaking and Opportunity for Comment (NOPR) to make certain changes to the existing regulations for the loan guarantee program authorized by Section 1703 of Title XVII.
- Final Rule Technical Amendment - The Department published this technical amendment to the regulations for the loan guarantee program authorized by Section 1703 of Title XVII to incorporate, without substantive change, an amendment to Section 1702(b) of Title XVII enacted by Section 305 of the Consolidated Appropriations Act, 2012.
- Final Rule (December 4, 2009) – On December 4, 2009, the Department having considered all of the comments submitted to DOE in response to the August 7, 2009 NOPR, issued this final rule.
- Notice of Proposed Rulemaking (August 6, 2009) - This copy of the NOPR is being provided for public convenience. The official NOPR was published August 7, 2009 in the Federal Register. On August 7, 2009, the Department published a Notice of Proposed Rulemaking and Opportunity for Comment (NOPR) to make certain changes to the existing regulations for the loan guarantee program authorized by Section 1703 of Title XVII.
- Final Rule (October 23, 2007) – On October 23, 2007, the Department published a final rule establishing regulations for the loan guarantee program authorized by Section 1703 of Title XVII, which authorizes the Secretary of Energy to make loan guarantees for projects that “avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases; and employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued.”
- Notice of Proposed Rulemaking (May 16, 2007) - On May 16, 2007, the Department published a Notice of Proposed Rulemaking and opportunity for comment (NOPR) to establish regulations for the loan guarantee program authorized by Title XVII
Certain appropriations acts have provided limitations on the maximum principal amount of loan guarantees issued by DOE under the Title XVII loan program. Congress has also provided a mix of direct appropriations and borrower-provided funds to pay the "cost of loan guarantees" (commonly referred to as the “credit subsidy cost”). These appropriations are listed below.
2011 Appropriations Act
Division B, Title IV, Section 1425 of the Department of Defense and Full-Year Continuing Appropriations Act, 2011, P.L. 112-10
2009 Appropriations Act
Division C, Title III of the Omnibus Appropriations Act, 2009, P.L. 111-8, as amended by Title IV, Section 408 of the Supplemental Appropriations Act, 2009, P.L. No. 111-32
2008 Appropriations Act
Division C, Title III of the Consolidated Appropriations Act, 2008, P.L. 110-161; see also Staff of House Comm. on Appropriations, 110th Cong., Consolidated Appropriations Act, 2008, pp. 581-82 (Comm. Print 2008)
2007 Appropriations Act)
Division B, Title II, Chapter 3, Section 20320 of the Revised Continuing Appropriations Resolution, 2007, P.L. 110-5
Other Federal Support Limitation
Under some of the appropriations acts listed above and subject to limited exceptions, DOE will not be able to issue loan guarantees to projects that will benefit directly or indirectly from certain other forms of federal support, such as grants or other loan guarantees from federal agencies or entities (including DOE), federal agencies or entities as a customer or off-taker of the project’s products or services, or other federal contracts, including acquisitions, leases and other arrangements, that support the project. Applicants are strongly encouraged to consult DOE representatives for further guidance.
Cargo Preference Act
All projects that receive a loan guarantee under Title XVII must comply with the Cargo Preference Act of 1954, which establishes certain requirements for the use of U.S. flagged vessels in the movement of cargo in international waters. These requirements may apply to shipments contracted for or made prior to receiving a loan guarantee. DOE urges applicants to contact the Maritime Administration directly to ensure that relevant project agreements provide for compliance with the Cargo Preference Act.
General information on cargo preference can be found at the Maritime Administration’s web site: www.marad.dot.gov/cargopreference. Potential applicants may also address questions on cargo preference to the Maritime Administration’s Office of Cargo Preference and Domestic Trade at (202) 366-4610 or via email to cargo.marad@dot.gov.
Davis Bacon Act
Loan guarantees under Title XVII of the Energy Policy Act of 2005 require that laborers and mechanics employed by contractors and subcontractors in the performance of construction (as defined in Department of Labor (DOL) regulations at 29 CFR 5.2(j)) financed in whole or in part by such loan guarantee be paid at rates not less than those prevailing on projects of a character similar in the locality of the project, as determined by the Secretary of Labor in accordance with the Davis Bacon Act (DBA).
Under DOL regulations at 29 CFR 5.5(a)(6), a borrower who receives a loan guarantee under the Title XVII loan program is responsible for DBA compliance by all contractors and subcontractors. In accordance with DBA regulations at 29 CFR §1.6(g), the DBA must be complied with beginning with the construction of a project, regardless of when the issuance of the DOE loan guarantee has occurred. As such, an applicant seeking a DOE loan guarantee under Section 1703 for a project that has commenced such construction prior to the issuance of such a loan guarantee will have to make any necessary wage adjustments no later than the closing of the DOE guaranteed loan. There is an exception if the Administrator of the Wage and Hour Division, Employment Standards Administration at DOL finds that (i) such relief is necessary and proper in the public interest to prevent injustice or undue hardship and (ii) there was no evidence of intent to apply for federal funding or assistance prior to the start of construction.
Please see the Department of Labor DBA website for more information and links to the DBA and its regulations: http://www.dol.gov/compliance/laws/comp-dbra.htm.
- Federal Credit Reform Act
- OMB Circular No. A-129 Revised (Policies for Federal Credit Programs)
- OMB Circular No. A-11 Part 5 (Federal Credit Final Rule)
Projects that Employ Innovative Technologies in Support of the Advanced Energy Initiative (2006)
Federal Loan Guarantees For Projects That Employ Innovative Technologies In Support Of The Advanced Energy Initiative
Front-end Nuclear Facilities (2008)
Federal Loan Guarantees For Front End Nuclear Facilities
Nuclear Power Facilities (2008)
Federal Loan Guarantees For Nuclear Power Facilities
Energy Efficiency, Renewables, Advanced Transmission and Distribution Technologies (2008)
Federal Loan Guarantees For Projects That Employ Innovative Energy Efficiency, Renewable Energy, And Advanced Transmission And Distribution Technologies
Fossil Energy Advanced Technologies (2008 – 2009)
Federal Loan Guarantees For Coal-based Power Generation And Industrial Gasification Facilities That Incorporate Carbon Capture And Sequestration Or Other Beneficial Uses Of Carbon And For Advanced Coal Gasification Facilities
Energy Efficiency, Renewable Energy and Advanced Transmission and Distribution Technologies Issued: July 29, 2009
Federal Loan Guarantees For Projects That Employ Innovative Energy Efficiency, Renewable Energy, And Advanced Transmission And Distribution Technologies
Financial Institution Partnership Program - Commercial Technology Renewable Energy Generation Projects Issued: October 7, 2009
Financial Institution Partnership Program - Commercial Technology Renewable Energy Generation Projects Issued: October 7, 2009
Federal Loan Guarantees for Projects that Manufacture Commercial Technology Renewable Energy Systems and Components: August 10, 2010
Federal Loan Guarantees for Projects that Manufacture Commercial Technology Renewable Energy Systems and Components: August 10, 2010
Transmission Infrastructure Investment Projects (2009)
Federal Loan Guarantees For Electric Power Transmission Infrastructure Investment Projects
AMERICAN RECOVERY AND REINVESTMENT ACT
The American Recovery and Reinvestment Act (ARRA) provided authority for the Department to issue loan guarantees under Section 1705 of Title XVII for U.S. based projects that commenced construction not later than September 30, 2011. LPO is not currently authorized to issue additional loan guarantees under Section 1705 of Title XVII.
ARRA RELATED LINKS