Does a determination that an application is substantially complete mean that DOE has determined that the applicant and project are eligible for a loan?
An application is substantially complete when the ATVM loan program determines that the application contains all of the information required by 10 CFR 611.101.The determination of substantial completeness is the first step in the review process and does not indicate that DOE has made a determination that the applicant and project are eligible for a loan. Once the application is deemed to be substantially complete, the ATVM Program will conduct an initial assessment of the technical and financial aspects of the application in order to determine whether the application will be moved to preliminary due diligence. If the ATVM Program determines not to move the application to preliminary due diligence, the application will be rejected and no further action taken by the ATVM Program.
To what extent can qualifying components and engineering integration be used in vehicles that are manufactured outside of the United States?
The manufacture of qualifying components and/or engineering integration funded by an ATVM loan must take place in the United States. Furthermore, the resulting advanced technology vehicle (ATV) utilizing the qualifying component or engineering integration must be sold in the United States.
Are loans available for research and development projects?
The ATVM program was intended to support the production of fuel-efficient, advanced technology vehicles (ATVs) and qualifying components in the United States, therefore loans are not available for research and development projects. Section 611.100 of the Interim Final Rule describes who may be eligible for loans. To be eligible, an applicant must be an automobile manufacturer or an automobile component manufacturer.
Are there funds available for the ATVM grant program?
Congress has not appropriated funds for the grant program at this time. Accordingly, no applications are being accepted for the grant program.
Is there a small business set aside for loans?
A small business set aside is not available under the ATVM loan program; the small business set aside is only applicable for the grant program.
Will DOE allocate set amounts of the available loan fund to manufacturers of advanced technology vehicles and manufacturers of qualifying components?
No. DOE will not allocate set amounts of the funds available for loans to manufacturers of advanced technology vehicles and manufacturers of qualifying components.
Applications are currently received on a rolling basis.
If my application contains company proprietary or confidential information, how should I mark such information to ensure it is not made public?
If elements and/or attachments of an application for a loan under Section 136 of the Energy Independence and Security Act of 2007 contain information the applicant considers to be trade secret, confidential, privileged or otherwise exempt from disclosure under the Freedom of Information
Who must sign the certification required by Section 611.101(a) and the written assurance required by Section 611.101(m) of the Interim Final Rule?
Both the certification that the applicant meets each of the requirements of the program, and the written assurance regarding the Davis-Bacon (DBA) requirements must be signed by a responsible officer of the applicant.
Can funding from the ATVM loan program be included in the determination of financial viability?
The recipient of a loan must be “financially viable without the receipt of additional Federal funding associated with the proposed eligible project” to comply with the requirements of Section 136 of the Energy Independence and Security Act and the Interim Final Rule. Funds received (or anticipated to be received) from the ATVM loan program itself may not be counted when determining financial viability.
What are the fee arrangements between ATVM loan applicants and their professional advisors?
As a matter of policy, the Loan Programs Office strongly disapproves of fee arrangements with financial and/or other professional advisors to loan applicants that provide for payment of a contingent fee computed as a percentage of the amount of a loan issued by DOE. Generally, the Loan Programs Office will require restructuring of any such fee arrangement as a condition to the issuance of a loan. Fees that are computed on other terms, such as a fixed fee or a time and materials fee, but payable only at closing, are acceptable. Applicants are advised to structure, or, if necessary, restructure, their fee arrangements accordingly, and to clearly disclose in their financial model the basis of computation of all advisory fees to be paid in connection with the project.
Will borrowers that receive a loan under the ATVM loan program be required to comply with DBA requirements?
All projects involving construction, alteration, or repair, as defined in DBA regulations at 29 CFR §5.2(j), financed in whole or in part by a loan under the ATVM program are required to comply with DBA requirements. Specifically, Section 136(d)(2) of the Energy Independence and Security Act of 2007, as amended, requires that all laborers and mechanics employed by contractors or subcontractors during construction, alteration, or repair that is financed, in whole or in part, by a loan under this section shall be paid wages at rates not less than those prevailing on similar construction in the locality, as determined by the Secretary of Labor in accordance with sections 3141-3144, 3146, and 3147 of Title 40, United States Code.
Under DOL regulations at 29 CFR 5.5(a)(6), a borrower who receives a loan under the ATVM Program is responsible for DBA compliance by all contractors and subcontractors.
Are borrowers required to comply with DBA requirements with respect to construction activities undertaken prior to DOE’s issuance of an ATVM loan?
Consistent with DBA regulations at 29 CFR §1.6(g), the DBA must be complied with from the start of construction, alteration, or repair of a project, regardless of when the issuance of the ATVM loan has occurred. As such, an applicant seeking a loan under the ATVM Program for a project that has commenced such construction, alteration, or repair prior to the issuance of such a loan will have to make any necessary wage adjustments no later than the closing of the loan. There is an exception under 29 CFR §1.6(g) 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.
NEPA is the National Environmental Policy Act, which requires federal agencies to assess the environmental impact of all major Federal actions significantly affecting the quality of the human environment. The White House Council on Environmental Quality (CEQ) has promulgated NEPA implementing regualtions (40 CFR Parts 1500-1508) that are applicable to all agencies. DOE’s NEPA Order (451.1B) and regulations (10 CFR Part 1021) contain implementing procedures that specifically address their programs. The NEPA Flow Chart [D1] displays the steps in the NEPA process.
There are three types of review under NEPA: categorical exclusions (CX), environmental assessments (EA), and environmental impact statements (EIS). DOE’s NEPA implementing regulations specify actions that normally require an EIS or EA, and actions that can be categorically excluded. DOE’s categories of actions identifying CXs, EAs, and EISs are listed in Appendices A, B, C, and D to Subpart D or DOE’s NEPA rule. An EIS is a detailed analysis of actions presumed to have significant environmental impacts, and is followed by a Record of Decision (ROD). An EA is a concise public document that briefly provides sufficient evidence and analysis for determining whether to make a Finding of No Significant Impact (FONSI) or prepare an EIS. CX refers to a category of actions which do not individually or cumulatively have a significant effect on the human environment and do not require an EA or EIS. Examples of EA’s and EISs can be found on LPO’s website at www.energy.gov/nepa/nepa-documents.
What is the applicant role in the NEPA review process?
The Applicant is required to complete an Environmental Report as part of the loan application. This should be a comprehensive description and environmental effects analysis of their proposed project, the preparation of which may require the assistance of an environmental contractor, particularly for EIS-level projects. The information submitted should be based on guidance and requirements identified by LPO. . For an example of such guidance, see Attachment B to the current solicitations for loan guarantee applications. Once a project sponsor has decided to submit an application, they are encouraged to contact the Environmental Compliance (EC) Division of LPO for additional guidance on what to include in their application.
Upon commencement of due diligence, the EC division of LPO will work with the applicant and contractor in an iterative process to ensure smooth and timely completion of the NEPA process. DOE in many cases, particularly for EISs, develops the NEPA document using a contractor that will be paid by the Applicant under a “third party” arrangement as provided in CEQ regulations at 40 CFR 1506.5(c).
What does the NEPA review entail and how long does it take?
NEPA review begins once a project has been approved to begin due diligence. LPO makes a determination of the level of NEPA review required, and working in an ongoing process with the applicant or their contractor, begins a thorough review of all resource areas and their potential environmental impacts, coordinates public involvement and ensures legal and regulatory requirements are met as they develop the NEPA document
The average timeline for an environmental assessment is 6-9 months, and for an environmental impact statement around 18-24 months. Since the EIS process involves significant environmental impacts, it requires a more expanded review and public involvement process than an EA. This includes the solicitation of public review and comment on the draft EIS, and holding related public meetings and hearings.
What other laws affect the NEPA review process?
During the NEPA review process a number of other environmental laws require coordination and compliance. These include Section 107 of the Endangered Species Act, Section 404 of the Clean Water Act, Section 106 of the National Historic Preservation Act, in addition to various provisions of the Clean Air Act, several executive orders and other statutes. Issues such as environmental justice and socioeconomics, farmland protection, and Tribal concerns must also be taken into account. For many of these concerns it is imperative that collaboration take place as early as possible, for instance when notifying Tribes, State Historic Preservation Officers, or Fish and Wildlife Service of the proposed project. Since there are so many issues and requirements to consider during the NEPA review process, Applicants are encouraged to engage LPO’s EC Division early on to discuss the project and related requirements.
What happens if another federal agency has prepared, or is in the process of preparing a NEPA document for an applicant’s project?
If another Federal agency is already preparing an EA or EIS, and if the schedule permits, DOE may seek to become a cooperating agency on the EIS or EA. Under this arrangement DOE works with the other Federal agency in preparing the NEPA document, resulting in a more efficient and timely review. Similarly, when DOE initiates a NEPA review for a proposed loan DOE will check to see if another Federal agency also has jurisdiction by law or special expertise concerning the project or its potential impacts, and will consider inviting the agency to be a cooperating agency in the preparation of the NEPA document.
How are state environmental reviews considered in DOE’s NEPA process for loan projects?
A number of states also require environmental reviews similar to NEPA. In some cases, the state review will precede the DOE NEPA process, and DOE will be able to use the results of the state process to develop information for the EA or EIS. In other cases, DOE will work with the applicant and the state to prepare a single document that meets both state and Federal requirements. However, NEPA regulations do not allow DOE to adopt a non-Federal environmental review document.
What public review is required for EAs and EISs?
DOE’s regulations require that EAs be reviewed by host states and Tribes for a minimum of 14 days. In some cases DOE may also want to provide for public review and comment for EAs, and, in all cases, will make EAs available to anyone upon request. Draft EAs will also be posted on the DOE Loan Programs Office website. For EISs, DOE will always have a scoping meeting prior to the draft EIS (DEIS) and at least one public hearing after the DEIS is issued. DEISs must have a public comment period for a minimum of 45 days. DEIS are also review by the U.S. Environmental Protection Agency and other federal agencies, and host state and Tribal governments. EPA also reviews final EISs (FEISs).
When is an EIS required?
An EIS is required for Federal actions significantly affecting the quality of the human environment. In reaching a decision on the need for an EIS DOE first determines if the project is a type that is included in DOE’s classes of actions that normally require EISs as set out at Appendix D to Subpart D of 10 CFR Part 1021. If not, DOE may then prepare an EA to determine if a Finding of No Significant Impact can be made for the proposed action or if an EIS is required. Or DOE may decide that an EIS is needed without going through the EA process. In deciding on the need for an EIS, DOE considers the context and intensity of any potential impacts, including whether there are likely to be any significant environmental impacts that cannot be mitigated. Factors DOE may consider include the following:
-The project would significantly affect public health or safety;
-There are unique characteristics in the geographic area of the project, such as park lands, historic or cultural resources, prime farmland, wetlands, wild and scenic rivers, or ecologically critical areas that would be affected by the project;
-There is any controversy over the degree of environmental effect of the project;
-The project presents unique or unknown environmental risks;
-The project sets a precedent for future actions that are likely to have significant environmental impacts;
-The action is related to other actions which, taken together, could have significant cumulative impacts;
-The project adversely affects any sites, structures, etc., listed in or eligible for listing in the National Register of Historic Places;
-The project adversely affects an endangered or threatened species or its habitat that have been determined to be critical under the Endangered Species Act;
-The project threatens a violation of federal, state, or local laws or requirements imposed for the protection of the environment;
-The project would have a disproportionate and adverse impact on minority or low-income populations.
Are there companies and consultants that can prepare environmental reports, EAs and EISs?
There are a number of companies and consultants that specialize in NEPA work. Information about companies and consultants can often be obtained from professional organizations, architectural and engineering firms, and law firms. Information about companies and consultants that have prepared environmental documents for federal agencies is generally listed in Federal EISs or EAs, many of which are available on the Internet. Although DOE cannot recommend consultants or companies for NEPA work, DOE pre-qualifies several contractor teams for NEPA support services to DOE Program and Field Offices. The names of these contractor teams are available on DOE’s Office of NEPA Policy and Compliance website at www.energy.gov/sites/prod/files/nepapub/nepa_documents/RedDont/NEPA-ContractorContacts-2011.pdf
Can a loan be disbursed prior to the completion of a NEPA review?
No, a loan can only be approved once the NEPA review process has been completed.