TITLE XVII GOVERNING DOCUMENTS

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FOUNDATIONAL LEGISLATION, RULES, AND DOCUMENTS

Energy Policy Act of 2005

Title XVII of the Energy Policy Act of 2005 (42 USC Sec. 16511, et. seq.) provides broad authority for the Department of Energy to guarantee loans for innovative projects.

Final Rule (10 CFR Part 609)

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). The Final Rule (January 17, 2017) is also available at the Electronic Code of Federal Regulations.

Rule History:

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 (May 21, 2012)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 of 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.

 

APPROPRIATIONS

The Open Solicitations allocate direct loan guarantee authority under the following appropriations. Applicants should review the final solicitation AND all supplements before submitting an application.

Federal Loan Guarantees for Advanced Fossil Energy Projects (December 12, 2013, as supplemented)

DOE will make up to $8.5 billion in loan guarantee authority available under the Solicitation for Advanced Fossil Energy Projects. DOE’s authority to issue this amount of loan guarantees was provided by the (a) Revised Continuing Appropriations Resolution, 2007, P.L. 110-5 (the “2007 Appropriations Act”) and (b) Omnibus Appropriations Act, 2009, P.L. No. 111-8, as amended by Section 408 of the Supplemental Appropriations Act, 2009, P.L. No. 111-32 (the “2009 Appropriations Act”) and remains available until committed.

Federal Loan Guarantees for Renewable Energy and Efficient Energy Projects (June 3, 2014, as supplemented)

Under the Renewable Energy and Efficient Energy Projects solicitation, DOE will make available up to $3 billion in loan guarantee authority, plus an additional amount that can be imputed based on the availability of an appropriation for the credit subsidy cost of such imputed loan guarantee authority. The amount of total loan guarantee authority available pursuant to this Solicitation will depend on credit subsidy rates.

DOE’s authority to issue this amount of loan guarantees was provided by the (a) Revised Continuing Appropriations Resolution, 2007, P.L. 110-5 (the “2007 Appropriations Act”); (b) Omnibus Appropriations Act, 2009, P.L. 111-8, as amended by Section 408 of the Supplemental Appropriations Act, 2009, P.L. No. 111-32 (the “2009 Appropriations Act”); and (c) Department of Defense and Full-Year Continuing Appropriations Act, 2011, P.L. 112-10 (the “2011 Appropriations Act”) (the 2007, 2009, and 2011 Appropriations Acts are referred to herein collectively as the “Appropriations Acts”). DOE’s authority to issue this amount of loan guarantees remains available until committed.

Federal Loan Guarantees for Advanced Nuclear Energy Projects (December 10, 2014, as supplemented)

Under the Advanced Nuclear Energy Projects solicitation, DOE will make available up to $12.5 billion in loan guarantee authority. DOE’s authority to issue this amount of loan guarantees was provided by the Omnibus Appropriations Act, 2009, P.L. 111-8, as amended by Section 408 of the Supplemental Appropriations Act, 2009, P.L. No. 111-32 (the “2009 Appropriations Act”). DOE’s authority to issue this amount of loan guarantees remains available until committed.

Federal Support Limitation

Subject to limited exceptions that are set forth in the 2009 Appropriations Act and the 2011 Appropriations Act, DOE may not be able to issue loan guarantees to projects using funds appropriated under those acts 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.

INTERAGENCY REQUIREMENTS

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: https://www.marad.dot.gov/ships-and-shipping/cargo-preference/. Potential applicants may also address questions on cargo preference to the Maritime Administration’s Office of Cargo and Commercial Sealift 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.

ENVIRONMENTAL COMPLIANCE

Various federal environmental laws apply to DOE loans and loan guarantees, including Title XVII loan guarantees. Detailed information is available on the Title XVII Environmental Compliance webpage. 

FEDERAL CREDIT PROGRAMS

CLOSED SOLICITATIONS

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
August 8, 2006
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Nuclear Power Facilities (2008)
Federal Loan Guarantees For Nuclear Power Facilities
July 11, 2008
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Front-end Nuclear Facilities (2008)
Federal Loan Guarantees For Front End Nuclear Facilities
July 11, 2008
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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...
September 22, 2008
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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 Technol...
October 29, 2008
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Energy Efficiency, Renewable Energy and Advanced Transmission and Distribution Technologies Issued (2009)
Federal Loan Guarantees For Projects That Employ Innovative Energy Efficiency, Renewable Energy, And Advanced Transmission And Distribution Technol...
July 29, 2009
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Transmission Infrastructure Investment Projects (2009)
Federal Loan Guarantees For Electric Power Transmission Infrastructure Investment Projects
July 29, 2009
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Financial Institution Partnership Program - Commercial Technology Renewable Energy Generation Projects Issued (2009)
Financial Institution Partnership Program - Commercial Technology Renewable Energy Generation Projects
October 7, 2009
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Federal Loan Guarantees for Projects that Manufacture Commercial Technology Renewable Energy Systems and Components (2010)
Federal Loan Guarantees for Projects that Manufacture Commercial Technology Renewable Energy Systems and Components
August 10, 2010
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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.

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