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.

Amendments to Title XVII of the Energy Policy Act of 2005 were included in the Consolidated Appropriations Act, 2021 (Energy Act of 2020). 

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.

Learn more about how the Inflation Reduction Act of 2022 impacted Title XVII.

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

Innovative Clean Energy 

DOE’s authority to issue the current 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. No. 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”). DOE’s authority to issue this amount of loan guarantees remains available until committed.

Innovative Clean Energy: Fossil

DOE’s authority to issue the current 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.

Innovative Clean Energy: Nuclear

DOE’s authority to issue the current amount of loan guarantees was provided by (a) the 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”). DOE’s authority to issue this amount of loan guarantees remains available until committed.

Learn more about how the Inflation Reduction Act of 2022 impacted Title XVII appropriations.

In addition to the above, annual Appropriations Acts have provided appropriations for administrative expenses to carry out Title 17.

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

Consolidated Appropriations Act, 2021 (Energy Act of 2020)

In line with requirements from the Energy Act of 2020 (42 U.S.C. § 16512(m)), the Department has revised and executed an updated Memorandum of Understanding with the U.S. Department of Treasury that includes an established process for the required written analysis of the financial terms and conditions of the proposed Title XVII loan guarantee.

For More Information on Cargo Preference

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. 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.

The Maritime Administration has provided the following helpful links, as well as an overview presentation:

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 Environmental Compliance webpage. 

FEDERAL CREDIT PROGRAMS

OPEN SOLICITATIONS & SUPPLEMENTS

Innovative Clean Energy: Fossil (fka Advanced Fossil Energy Projects)

  • Solicitation (Amended and Restated as of April 18, 2022)
  • Original Solicitation (December 12, 2013)
  • Supplement I regarding Application Fee and Facility Fee (July 8, 2014)
  • Supplement II regarding Application Submission Schedule and Wiring Instructions (November 12, 2014) 
  • Supplement III regarding the Scope of Projects Eligible for the Solicitation (June 23, 2015)
  • Supplement IV regarding Distributed Energy Projects (August 24, 2015)
  • Supplement V regarding Additional Loan Guarantee Authority and Application Submission Schedule (October 21, 2015)
  • See Supplement X for updated Application Submission Schedule: Supplement VI regarding Application Submission Schedule (June 22, 2016), Supplement VII regarding Application Submission Schedule (November 29, 2016), and Supplement IX regarding Application Submission Schedule (July 26, 2019) are no longer effective and should be ignored.
  • Supplement VIII regarding Alternative Fuel Vehicle Distribution Facilities (January 9, 2017)
  • Supplement X regarding Application Submission Schedule (January 16, 2020)
  • Supplement XI regarding Eligibility of Projects Based on Reduction of Air Pollutants (June 10, 2020)
  • Supplement XII regarding IRA Implementing Supplement (March 10, 2023)

Innovative Clean Energy: Nuclear (fka Advanced Nuclear Energy Projects)

  • Solicitation (Amended and Restated as of April 18, 2022)
  • Original Solicitation (December 10, 2014)
  • Supplement I regarding Scope of Projects Eligible for the Solicitation (June 23, 2015)
  • Supplement II regarding Early Upstream and Engineering Project Costs (November 6, 2015)
  • Supplement VIII regarding Application Submission Schedule and Funds Available (January 16, 2020)
    • Supplement III regarding Application Submission Schedule (January 19, 2016); Supplement IV regarding Application Submission Schedule (November 29, 2016); Supplement V regarding Application Submission Schedule (July 20, 2017); Supplement VI regarding Application Submission Schedule (August 8, 2017), and; Supplement VII regarding Application Submission Schedule (July 26, 2019) are no longer effective and should be ignored.
  • Supplement IX regarding IRA Implementing Supplement (March 10, 2023)

Innovative Clean Energy (fka Renewable Energy & Efficient Energy Projects)

  • Solicitation (Amended and Restated as of April 18, 2022)
  • Original Solicitation (June 3, 2014)
  • Supplement I regarding Application Submission Schedule and Wiring Instructions (November 12, 2014) 
  • Supplement II regarding Scope of Projects Eligible for the Solicitation (June 23, 2015)
  • Supplement III regarding Distributed Energy Projects (August 24, 2015)
  • Supplement IV regarding Additional Loan Guarantee Authority and Application Submission Schedule (October 21, 2015)
  • Supplement VI regarding Electric Vehicle Charging Infrastructure (July 21, 2016)
  • Supplement VIII regarding Alternative Fuel Vehicle Distribution Facilities (January 9, 2017)
  • Supplement X regarding Application Submission Schedule (January 16, 2020)
    • Supplement V regarding Application Submission Schedule (June 22, 2016); Supplement VII regarding Application Submission Schedule (November 29, 2016), and; Supplement IX regarding Application Submission Schedule (July 26, 2019) are no longer effective and should be ignored.
  • Supplement XI regarding IRA Implementing Supplement (March 10, 2023)

CLOSED SOLICITATIONS

VIEW ALL

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.

Related Links