Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3747 

List of Subjects 

10 CFR Part 2 

Administrative practice and 

procedure, Antitrust, Byproduct 

material, Classified information, 

Confidential business information; 

Freedom of information, Environmental 

protection, Hazardous waste, Nuclear 

energy, Nuclear materials, Nuclear 

power plants and reactors, Penalties, 

Reporting and recordkeeping 

requirements, Sex discrimination, 

Source material, Special nuclear 

material, Waste treatment and disposal. 

10 CFR Part 13 

Administrative practice and 

procedure, Claims, Fraud, Organization 

and function (Government agencies), 

Penalties. 

For the reasons set out in the 

preamble and under the authority of the 

Atomic Energy Act of 1954, as amended; 

the Energy Reorganization Act of 1974, 

as amended; 28 U.S.C. 2461 note; and 5 

U.S.C. 552 and 553, the NRC is adopting 

the following amendments to 10 CFR 

parts 2 and 13: 

PART 2—AGENCY RULES OF 

PRACTICE AND PROCEDURE 

■ 1. The authority citation for part 2 

continues to read as follows: 

Authority: Atomic Energy Act of 1954, 

secs. 29, 53, 62, 63, 81, 102, 103, 104, 105, 

161, 181, 182, 183, 184, 186, 189, 191, 234 

(42 U.S.C. 2039, 2073, 2092, 2093, 2111, 

2132, 2133, 2134, 2135, 2201, 2231, 2232, 

2233, 2234, 2236, 2239, 2241, 2282); Energy 

Reorganization Act of 1974, secs. 201, 206 

(42 U.S.C. 5841, 5846); Nuclear Waste Policy 

Act of 1982, secs. 114(f), 134, 135, 141 (42 

U.S.C. 10134(f), 10154, 10155, 10161); 

Administrative Procedure Act (5 U.S.C. 552, 

553, 554, 557, 558); National Environmental 

Policy Act of 1969 (42 U.S.C. 4332); 44 U.S.C. 

3504 note. 

Section 2.205(j) also issued under 28 

U.S.C. 2461 note. 

§ 2.205 [Amended] 

■ 2. In § 2.205 amend paragraph (j) by 

removing the amount ‘‘$303,471’’ and 

adding in its place the amount 

‘‘$307,058’’. 

PART 13—PROGRAM FRAUD CIVIL 

REMEDIES 

■ 3. The authority citation for part 13 

continues to read as follows: 

Authority: 31 U.S.C. 3801 through 3812; 44 

U.S.C. 3504 note. 

Section 13.3 also issued under 28 U.S.C. 

2461 note. 

Section 13.13 also issued under 31 U.S.C. 

3730. 

§ 13.3 [Amended] 

■ 4. In § 13.3, amend paragraphs 

(a)(1)(iv) and (b)(1)(ii) by removing the 

amount ‘‘$11,665’’ and adding in its 

place the amount ‘‘$11,803’’. 

Dated December 28, 2020. 

For the Nuclear Regulatory Commission. 

Catherine Haney, 

Acting Executive Director for Operations. 

[FR Doc. 2021–00127 Filed 1–14–21; 8:45 am] 

BILLING CODE 7590–01–P 

DEPARTMENT OF ENERGY 

10 CFR Part 431 

[EERE–2017–BT–TP–0047] 

RIN 1904–AE18 

Energy Conservation Program: Test 

Procedures for Small Electric Motors 

and Electric Motors; Correction 

AGENCY: Office of Energy Efficiency and 

Renewable Energy, Department of 

Energy. 

ACTION: Final rule; correction. 

SUMMARY: The U.S. Department of 

Energy (‘‘DOE’’) recently published a 

final rule amending the test procedures 

for small electric motors and electric 

motors. This correction republishes an 

amendment from that final rule that 

could not be incorporated into the Code 

of Federal Regulations (‘‘CFR’’) due to 

an inaccurate amendatory instruction. 

Neither the error nor the correction in 

this document affect the substance of 

the rulemaking or any conclusions 

reached in support of the final rule. 

DATES: Effective Date: February 3, 2021. 

FOR FURTHER INFORMATION CONTACT: 

Mr. Jeremy Dommu, U.S. Department 

of Energy, Office of Energy Efficiency 

and Renewable Energy, Building 

Technologies Office, EE–5B, 1000 

Independence Avenue SW, Washington, 

DC 20585–0121. Telephone: (202) 586– 

4563. Email: 

ApplianceStandardsQuestions@

ee.doe.gov. Mr. Michael Kido, U.S. Department of 

Energy, Office of the General Counsel, 

GC–33, 1000 Independence Avenue SW, 

Washington, DC 20585–0121. 

Telephone: (202) 586–8145. Email: 

Michael.Kido@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: On 

January 4, 2021, DOE published a final 

rule amending the test procedures for 

small electric motors and electric 

motors. 86 FR 4. This document corrects 

the regulatory text instruction for 

appendix B to subpart B of part 431. In 

FR Doc. 2020–27662 appearing on page 

4, in the Federal Register of Monday, 

January 4, 2021, the following 

correction is made: 

Appendix B to Subpart B of Part 431— 

Uniform Test Method for Measuring 

Nominal Full Load Efficiency of 

Electric Motors [Corrected] 

On page 22, in the first column, 

amendatory instruction 6.e., 

‘‘Redesignating Sections 4, 4.1, 4.2, 4.3, 

4.4, 4.5, 4.6, 4.7, and 4.8 as Sections 3, 

3.1, 3.2, 3.4, 3.5, 3.6, 3.7, and 3.8 

respectively;’’ is corrected to read 

‘‘Redesignating Sections 4, 4.1, 4.2, 4.3, 

4.4, 4.5, 4.6, 4.7, and 4.8 as Sections 3, 

3.1, 3.2, 3.3, 3.4, 3.5, 3.6, 3.7, and 3.8 

respectively;’’. 

Signing Authority 

This document of the Department of 

Energy was signed on January 8, 2021, 

by Daniel R Simmons, Assistant 

Secretary for Energy Efficiency and 

Renewable Energy, pursuant to 

delegated authority from the Secretary 

of Energy. That document with the 

original signature and date is 

maintained by DOE. For administrative 

purposes only, and in compliance with 

requirements of the Office of the Federal 

Register, the undersigned DOE Federal 

Register Liaison Officer has been 

authorized to sign and submit the 

document in electronic format for 

publication, as an official document of 

the Department of Energy. This 

administrative process in no way alters 

the legal effect of this document upon 

publication in the Federal Register. 

Signed in Washington, DC, on January 8, 

2021. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

[FR Doc. 2021–00510 Filed 1–14–21; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF ENERGY 

10 CFR Parts 609 and 611 

RIN 1910–AA54 

Policies and Procedures for Loan 

Guarantees for Projects That Employ 

Innovative Technologies and for Direct 

Loans Under the Advanced 

Technology Vehicles Manufacturing 

Program 

AGENCY: Loan Programs Office, U.S. 

Department of Energy. 

ACTION: Final rule. 

SUMMARY: The U.S. Department of 

Energy (DOE) Loan Programs Office 

(LPO) establishes amended policies and 

procedures for the issuance of DOE loan 

guarantees pursuant to the Title XVII 

3748 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

Program and funding awards and loans 

pursuant to the Advanced Technology 

Vehicles Manufacturing Program in 

accordance with the Executive order of 

September 30, 2020, entitled 

‘‘Addressing the Threat to the Domestic 

Supply Chain from Reliance on Critical 

Minerals from Foreign Adversaries’’. 

The rule will establish revised policies 

and procedures for receiving, 

evaluating, and approving applications 

for loan guarantees, funding awards and 

loans from DOE. The rule will refine the 

definition of ‘‘Eligible Project’’ and 

address the use of Preliminary Term 

sheets and conditional commitments, as 

well as the payment of costs and fees by 

non-Federal third parties. 

DATES: This rule is effective on January 

15, 2021. 

FOR FURTHER INFORMATION CONTACT: Mr. 

John Lushetsky, Senior Advisor, Loan 

Programs Office, Loan Guarantee 

Program, U.S. Department of Energy LP 

10, 1000 Independence Avenue SW, 

Washington, DC 20585, (202) 586–2678, 

or by email to: john.lushetsky@

hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

Table of Contents 

I. Introduction and Background 

II. Discussion of Final Rule 

III. Regulatory Review 

I. Introduction and Background 

DOE issues this final rule to update 

regulations in accordance with the 

requirements of Executive Order 13953, 

‘‘Addressing the Threat to the Domestic 

Supply Chain from Reliance on Critical 

Minerals from Foreign Adversaries,’’ 85 

FR 62539 (Sept. 30, 2020). Executive 

Order 13953 establishes policy 

pertaining to lending activities by LPO 

pursuant to Title XVII of the Energy 

Policy Act of 2005, as amended (42 

U.S.C. 16511, et seq.) (‘‘Title XVII’’), and 

Section 136 of the Energy Independence 

and Security Act of 2007, as amended 

(42 U.S.C. 17013) (the ‘‘ATVM Statute’’), 

as they apply to ‘‘Critical Minerals,’’ 

‘‘Critical Minerals Production,’’ and 

related activities, including activities 

related to minerals more broadly. 

Executive Order 13953 requires that 

DOE update the relevant regulation in 

accordance with the policy presented in 

the Executive order. 

II. Discussion of Final Rule 

Executive Order 13953 requires that 

DOE LPO establish amended policies 

and procedures for the issuance of DOE 

loan guarantees, in order to provide 

financial support to eligible projects that 

will support a domestic supply chain 

for critical minerals and critical 

minerals production. The rule will 

establish revised policies and 

procedures for receiving, evaluating, 

and approving applications for loan 

guarantees from DOE. The rule will 

revise the definition of Eligible Project, 

for both the Title XVII and ATVM 

Programs, consistent with E.O. 13953 

and address the use of Preliminary Term 

sheets and conditional commitments, as 

well as the payment of costs and fees by 

non-Federal third parties. These 

changes will facilitate the accessibility 

and availability of loan guarantees from 

DOE to potential applicants in both the 

critical minerals space, as well as 

traditional innovative projects. These 

changes also will allow for the use of 

Preliminary Term sheets between DOE 

and potential applicants in the critical 

minerals space and other innovative 

projects. The use of Preliminary Term 

Sheets will aid potential applicants in 

obtaining their offtake agreements, 

while negotiating with DOE for a 

potential loan guarantee, subject to 

conditions required by DOE. The final 

rule will also clarify that payment by 

non-Federal third parties of costs and 

fees associated with a loan guarantee 

will be permissible, where necessary, to 

support the applicant. As required by 

Executive Order 13953, these changes 

will make DOE loan guarantees more 

available and accessible to critical 

minerals projects. 

III. Regulatory Review 

A. Executive Order 12866 

This final rule is not a ‘‘significant 

regulatory action’’ under Executive 

Order 12866, ‘‘Regulatory Planning and 

Review.’’ 58 FR 51735 (October 4, 1993). 

The rule revises the definition of 

Eligible Project consistent with E.O. 

13953 and clarifies DOE’s procedures 

for the review of applications to LPO for 

loan guarantees under the Title XVII 

Program and funding awards and loans 

under the ATVM Program. 

B. Executive Orders 13771 and 13777 

On January 30, 2017, the President 

issued Executive Order 13771, 

‘‘Reducing Regulation and Controlling 

Regulatory Costs.’’ See 82 FR 9339 

(January 30, 2017). E.O. 13771 states 

that the policy of the executive branch 

is to be prudent and financially 

responsible in the expenditure of funds, 

from both public and private sources. 

E.O. 13771 states that it is essential to 

manage the costs associated with the 

governmental imposition of private 

expenditures required to comply with 

Federal regulations. 

Additionally, on February 24, 2017, 

the President issued Executive Order 

13777, ‘‘Enforcing the Regulatory 

Reform Agenda.’’ The order required the 

head of each agency designate an agency 

official as its Regulatory Reform Officer 

(RRO). Each RRO oversees the 

implementation of regulatory reform 

initiatives and policies to ensure that 

agencies effectively carry out regulatory 

reforms, consistent with applicable law. 

Further, E.O. 13777 requires the 

establishment of a regulatory task force 

at each agency. The regulatory task force 

is required to make recommendations to 

the agency head regarding the repeal, 

replacement, or modification of existing 

regulations, consistent with applicable 

law. At a minimum, each regulatory 

reform task force must attempt to 

identify regulations that: 

(i) Eliminate jobs, or inhibit job 

creation; 

(ii) Are outdated, unnecessary, or 

ineffective; 

(iii) Impose costs that exceed benefits; 

(iv) Create a serious inconsistency or 

otherwise interfere with regulatory 

reform initiatives and policies; 

(v) Are inconsistent with the 

requirements of Information Quality 

Act, or the guidance issued pursuant to 

that Act, in particular those regulations 

that rely in whole or in part on data, 

information, or methods that are not 

publicly available or that are 

insufficiently transparent to meet the 

standard for reproducibility; or 

(vi) Derive from or implement 

Executive orders or other Presidential 

directives that have been subsequently 

rescinded or substantially modified. 

Finally, on March 28, 2017, the 

President signed Executive Order 13783, 

entitled ‘‘Promoting Energy 

Independence and Economic Growth.’’ 

Among other things, E.O. 13783 requires 

the heads of agencies to review all 

existing regulations, orders, guidance 

documents, policies, and any other 

similar agency actions (collectively, 

agency actions) that potentially burden 

the development or use of domestically 

produced energy resources, with 

particular attention to oil, natural gas, 

coal, and nuclear energy resources. 

Such review does not include agency 

actions that are mandated by law, 

necessary for the public interest, and 

consistent with the policy set forth 

elsewhere in that order. 

DOE concludes that this final rule is 

consistent with the directives set forth 

in these Executive orders. This final rule 

is expected to be an E.O. 13771 

deregulatory action. The provisions in 

this final rule, as described in section II, 

revise the definition of Eligible Project 

consistent with E.O. 13953 and establish 

amended policies and procedures for 

the issuance of DOE loan guarantees, 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3749 

funding awards and loans in accordance 

with Executive Order 13953 and for 

receiving, evaluating, and approving 

applications for loan guarantees from 

DOE. 

C. Regulatory Flexibility Act 

The Regulatory Flexibility Act (5 

U.S.C. 601 et seq.) requires preparation 

of an initial regulatory flexibility 

analysis for any rule that by law must 

be proposed for public comment, unless 

the agency certifies that the rule, if 

promulgated, will not have a significant 

economic impact on a substantial 

number of small entities. Because a 

notice of proposed rulemaking is not 

required for this action pursuant to 5 

U.S.C. 553, or any other law, no 

regulatory flexibility analysis has been 

prepared for this final rule. 

In addition, DOE notes that the rule 

would clarify DOE’s policies and 

procedures for processing applications 

for loan guarantees, funding awards, 

and loans, and would not impose a 

burden on applicants, including small 

entities. Specifically, these changes will 

facilitate the accessibility and 

availability of loan guarantees, funding 

awards, and loans from DOE to potential 

applicants in the critical minerals space, 

as well as for traditional innovative 

projects. The changes also will allow for 

the use of Preliminary Term sheets 

between DOE and potential applicants 

in the critical minerals space and for 

other innovative projects. The use of 

Preliminary Term Sheets will aid 

potential applicants in obtaining their 

offtake agreements, while negotiating 

with DOE for a potential loan guarantee, 

subject to conditions required by DOE. 

The final rule will clarify that payment 

by non-Federal third parties of costs and 

fees associated with a loan guarantee 

will be permissible, where necessary, to 

support the applicant. 

D. Paperwork Reduction Act 

The final rule would impose no new 

information or record keeping 

requirements. Accordingly, Office of 

Management and Budget (OMB) 

clearance is not required under the 

Paperwork Reduction Act. (44 U.S.C. 

3501 et seq.). The information collection 

necessary to administer DOE loan 

guarantees for projects that employ 

innovative technologies under 10 CFR 

part 609 is subject to OMB approval 

under the Paperwork Reduction Act 

(PRA), 44 U.S.C. 3501 et seq. The 

information collection provisions of this 

part were previously approved by OMB 

under OMB Control No. 1910–5134. 

Notwithstanding any other provision 

of the law, no person is required to 

respond to, nor shall any person be 

subject to a penalty for failure to comply 

with, a collection of information subject 

to the requirements of the PRA, unless 

that collection of information displays a 

currently valid OMB Control Number. 

E. National Environmental Policy Act 

DOE has determined that this final 

rule will be covered under the 

Categorical Exclusion found in DOE’s 

National Environmental Policy Act 

regulations at paragraph A5 of appendix 

A to subpart D, 10 CFR part 1021, which 

applies to a rulemaking that amends an 

existing rule or regulation and that does 

not change the environmental effect of 

the rule or regulation being amended. 

Accordingly, neither an environmental 

assessment nor an environmental 

impact statement is required. 

F. Executive Order 13132 

Executive Order 13132, ‘‘Federalism,’’ 

64 FR 43255 (August 4, 1999) imposes 

certain requirements on agencies 

formulating and implementing policies 

or regulations that preempt State law or 

that have federalism implications. 

Agencies are required to examine the 

constitutional and statutory authority 

supporting any action that would limit 

the policymaking discretion of the 

States and carefully assess the necessity 

for such actions. DOE has examined this 

final rule and has determined that it 

will not preempt State law and will not 

have a substantial direct effect on the 

States, on the relationship between the 

National Government and the States, or 

on the distribution of power and 

responsibilities among the various 

levels of government. No further action 

is required by Executive Order 13132. 

G. Executive Order 12988 

With respect to the review of existing 

regulations and the promulgation of 

new regulations, section 3(a) of 

Executive Order 12988, ‘‘Civil Justice 

Reform,’’ 61 FR 4729 (February 7, 1996), 

imposes on Executive agencies the 

general duty to adhere to the following 

requirements: (1) Eliminate drafting 

errors and ambiguity; (2) write 

regulations to minimize litigation; and 

(3) provide a clear legal standard for 

affected conduct rather than a general 

standard and promote simplification 

and burden reduction. With regard to 

the review required by section 3(a), 

section 3(b) of Executive Order 12988 

specifically requires that Executive 

agencies make every reasonable effort to 

ensure that the regulation: (1) Clearly 

specifies the preemptive effect, if any; 

(2) clearly specifies any effect on 

existing Federal law or regulation; (3) 

provides a clear legal standard for 

affected conduct while promoting 

simplification and burden reduction; (4) 

specifies the retroactive effect, if any; (5) 

adequately defines key terms; and (6) 

addresses other important issues 

affecting clarity and general 

draftsmanship under any guidelines 

issued by the Attorney General. Section 

3(c) of Executive Order 12988 requires 

Executive agencies to review regulations 

in light of applicable standards in 

section 3(a) and section 3(b) to 

determine whether they are met or it is 

unreasonable to meet one or more of 

them. DOE has completed the required 

review and determined that, to the 

extent permitted by law, this final rule 

meets the relevant standards of 

Executive Order 12988. 

H. Unfunded Mandates Reform Act of 

1995 

Title II of the Unfunded Mandates 

Reform Act of 1995 (UMRA) requires 

each Federal agency to assess the effects 

of Federal regulatory actions on State, 

local, and Tribal governments and the 

private sector. Public Law 104–4, sec. 

201 (codified at 2 U.S.C. 1531). For a 

regulatory action likely to result in a 

rule that may cause the expenditure by 

State, local, and Tribal governments, in 

the aggregate, or by the private sector of 

$100 million or more in any one year 

(adjusted annually for inflation), section 

202 of UMRA requires a Federal agency 

to publish a written statement that 

estimates the resulting costs, benefits, 

and other effects on the national 

economy. (2 U.S.C. 1532(a), (b)). The 

UMRA also requires a Federal agency to 

develop an effective process to permit 

timely input by elected officers of State, 

local, and Tribal governments on a 

‘‘significant intergovernmental 

mandate,’’ and requires an agency plan 

for giving notice and opportunity for 

timely input to potentially affected 

small governments before establishing 

any requirements that might 

significantly or uniquely affect them. On 

March 18, 1997, DOE published a 

statement of policy on its process for 

intergovernmental consultation under 

UMRA. 62 FR 12820. DOE’s policy 

statement is also available at http://

energy.gov/sites/prod/files/gcprod/ 

documents/umra_97.pdf. UMRA 

sections 202 and 205 do not apply to 

this action because they apply only to 

rules for which a general notice of 

proposed rulemaking is published. 

Nevertheless, DOE has determined that 

this final rule does not contain a Federal 

intergovernmental mandate, nor is it 

expected to require expenditures of 

$100 million or more in any one year by 

the private sector. 

3750 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

I. Treasury and General Government 

Appropriations Act, 1999 

Section 654 of the Treasury and 

General Government Appropriations 

Act, 1999, 5 U.S.C. 601 note, requires 

Federal agencies to issue a Family 

Policymaking Assessment for any 

rulemaking that may affect family wellbeing. While this final rule will apply to 

individuals who may be members of a 

family, the rule will not have any 

impact on the autonomy or integrity of 

the family as an institution. 

Accordingly, DOE has concluded that it 

is not necessary to prepare a Family 

Policymaking Assessment. 

J. Treasury and General Government 

Appropriations Act, 2001 

The Treasury and General 

Government Appropriations Act, 2001 

(44 U.S.C. 3516, note) provides for 

agencies to review most disseminations 

of information to the public under 

guidelines established by each agency 

pursuant to general guidelines issued by 

OMB. OMB’s guidelines were published 

at 67 FR 8452 (February 22, 2002), and 

DOE’s guidelines were published at 67 

FR 62446 (October 7, 2002). DOE has 

reviewed the final rule under the OMB 

and DOE guidelines and has concluded 

that it is consistent with applicable 

policies in those guidelines. 

K. Executive Order 13211 

Executive Order 13211, ‘‘Actions 

Concerning Regulations That 

Significantly Affect Energy Supply, 

Distribution, or Use,’’ 66 FR 28355 (May 

22, 2001), requires Federal agencies to 

prepare and submit to the Office of 

Information and Regulatory Affairs 

(OIRA), Office of Management and 

Budget, a Statement of Energy Effects for 

any proposed significant energy action. 

A ‘‘significant energy action’’ is defined 

as any action by an agency that 

promulgated or is expected to lead to 

promulgation of a final rule, and that: 

(1) Is a significant regulatory action 

under Executive Order 12866, or any 

successor order; and (2) is likely to have 

a significant adverse effect on the 

supply, distribution, or use of energy, or 

(3) is designated by the Administrator of 

OIRA as a significant energy action. For 

any proposed significant energy action, 

the agency must give a detailed 

statement of any adverse effects on 

energy supply, distribution, or use 

should the proposal be implemented, 

and of reasonable alternatives to the 

action and their expected benefits on 

energy supply, distribution, and use. 

This regulatory action will not have a 

significant adverse effect on the supply, 

distribution, or use of energy and is 

therefore not a significant energy action. 

Accordingly, DOE has not prepared a 

Statement of Energy Effects. 

L. Administrative Procedure Act 

In accordance with 5 U.S.C. 553(b), 

the Administrative Procedure Act, DOE 

generally publishes a proposed rule and 

solicits public comment on it before 

issuing the rule in final. DOE also 

generally provides at least a 30-day 

delay in effective date for final rules 

pursuant to 5 U.S.C. 553(d). This 

rulemaking, as a matter relating to loans, 

is exempt from the requirement to 

publish a notice of proposed rulemaking 

under 5 U.S.C. 553(a)(2). In addition, 

Executive Order 13953 specifically 

directs DOE to consider LPO loan 

guarantees, funding awards, and loans 

involving critical minerals projects and 

supply chains, and such projects that 

otherwise satisfy the requirements of 

Title XVII and the ATVM Statute are 

already accepted, and deemed to be, 

‘‘Eligible Projects’’ by DOE under 

applicable law and regulations. 

M. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

submit to Congress a report regarding 

the issuance of this final rule prior to 

the effective date set forth at the outset 

of this rulemaking. The report will state 

that it has been determined that the rule 

is not a ‘‘major rule’’ as defined by 5 

U.S.C. 801(2). 

N. Approval of the Office of the 

Secretary 

The Secretary of Energy has approved 

publication of this final rule. 

List of Subjects 

10 CFR Part 609 

Administrative practice and 

procedure, Energy, Loan programs, 

Reporting and recordkeeping 

requirements. 

10 CFR Part 611 

Administrative practice and 

procedure, Loan programs-energy, 

Reporting and recordkeeping 

requirements. 

Signing Authority 

This document of the Department of 

Energy was signed on December 31, 

2020, by Steven E. Winberg, Acting 

Under Secretary of Energy, pursuant to 

delegated authority from the Secretary 

of Energy. That document with the 

original signature and date is 

maintained by DOE. For administrative 

purposes only, and in compliance with 

requirements of the Office of the Federal 

Register, the undersigned DOE Federal 

Register Liaison Officer has been 

authorized to sign and submit the 

document in electronic format for 

publication, as an official document of 

the Department of Energy. This 

administrative process in no way alters 

the legal effect of this document upon 

publication in the Federal Register. 

Signed in Washington, DC, on December 

31, 2020. 

Treena V. Garrett, 

Federal Register Liaison Officer, U.S. 

Department of Energy. 

For the reasons stated in the 

preamble, DOE amends parts 609 and 

611 of chapter II of title 10 of the Code 

of Federal Regulations as set forth 

below: 

■ 1. Part 609 is revised to read as 

follows: 

PART 609—LOAN GUARANTEES FOR 

PROJECTS THAT EMPLOY 

INNOVATIVE TECHNOLOGIES 

Sec. 

609.1 Purpose and scope. 

609.2 Definitions and interpretation. 

609.3 Solicitations. 

609.4 Submission of applications. 

609.5 Programmatic, technical, and 

financial evaluation of applications. 

609.6 Term sheets and conditional 

commitments. 

609.7 Closing on the loan guarantee 

agreement. 

609.8 Loan guarantee agreement. 

609.9 Lender servicing requirements. 

609.10 Project costs. 

609.11 Fees and charges. 

609.12 Full faith and credit and 

incontestability. 

609.13 Default, demand, payment, and 

foreclosure on collateral. 

609.14 Preservation of collateral. 

609.15 Audit and access to records. 

609.16 Deviations. 

Authority: 42 U.S.C. 16511–16514. 

§ 609.1 Purpose and scope. 

(a) This part sets forth the policies 

and procedures that DOE uses for 

receiving, evaluating, and approving 

applications for loan guarantees to 

support Eligible Projects under section 

1703 of the Energy Policy Act of 2005 

(Act). 

(b) This part applies to all 

Applications, Conditional 

Commitments, and Loan Guarantee 

Agreements. 

(c) Part 1024 of chapter X of title 10 

of the Code of Federal Regulations shall 

not apply to actions taken under this 

part. 

(d) This part incorporates the policies 

set forth in Executive Order 13953 

(‘‘Executive Order Addressing the 

Threat to the Domestic Supply Chain 

from Reliance on Critical Minerals from 

Foreign Adversaries,’’ dated September 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3751 

20, 2020), and Executive Order 13817 

(‘‘A Federal Strategy to Ensure Secure 

and Reliable Supplies of Critical 

Minerals,’’ dated December 20, 2017), as 

amended. 

§ 609.2 Definitions and interpretation. 

(a) Definitions. When used in this part 

the following words have the following 

meanings. 

Act means Title XVII of the Energy 

Policy Act of 2005 (42 U.S.C. 16511– 

16514), as amended. 

Administrative Cost of Issuing a Loan 

Guarantee means the total of all 

administrative expenses that DOE 

incurs during: 

(i) The evaluation of an Application 

for a loan guarantee; 

(ii) The negotiation and offer of a 

Term Sheet; 

(iii) The negotiation of a Loan 

Guarantee Agreement and related 

documents, including the issuance of a 

Guarantee; and 

(iv) The servicing and monitoring of 

a Loan Guarantee Agreement, including 

during the construction, startup, 

commissioning, shakedown, and 

operational phases of an Eligible Project. 

Applicant means a Person, including 

a prospective Borrower or Project 

Sponsor, that submits an Application to 

DOE. 

Application means a written 

submission of materials responsive to a 

Solicitation that satisfies § 609.4. 

Application Fee means the fee or fees 

required to be paid by an Applicant in 

connection with submission of an 

Application and specified in a 

Solicitation. The Application Fee does 

not include the Credit Subsidy Cost. 

Attorney General means the Attorney 

General of the United States. 

Borrower means any Person that 

enters into a Loan Guarantee Agreement 

with DOE and issues Guaranteed 

Obligations. 

Cargo Preference Act means the Cargo 

Preference Act of 1954, 46 U.S.C. 55305, 

as amended. 

Commercial Technology means a 

technology in general use in the 

commercial marketplace in the United 

States at the time the Term Sheet is 

offered by DOE. A technology is in 

general use if it is being used in three 

or more facilities that are in commercial 

operation in the United States for the 

same general purpose as the proposed 

project, and has been used in each such 

facility for a period of at least five years. 

The five-year period for each facility 

shall start on the in-service date of the 

facility employing that particular 

technology or, in the case of a retrofit of 

a facility to employ a particular 

technology, the date the facility resumes 

commercial operation following 

completion and testing of the retrofit. 

For purposes of this section, facilities 

that are in commercial operation 

include projects that have been the 

recipients of a loan guarantee from DOE 

under this part. 

Conditional Commitment means a 

Term Sheet offered by DOE and 

accepted by the offeree of the Term 

Sheet, all in accordance with § 609.6(c); 

provided, that the Secretary may 

terminate a Conditional Commitment 

for any reason at any time prior to the 

execution of the Loan Guarantee 

Agreement; and provided, further, that 

the Secretary may not delegate this 

authority to terminate a Conditional 

Commitment. 

Contracting Officer means the 

Secretary of Energy or a DOE official 

authorized by the Secretary to enter 

into, administer or terminate DOE Loan 

Guarantee Agreements and related 

contracts on behalf of DOE. 

Credit Subsidy Cost has the same 

meaning as ‘‘cost of a loan guarantee’’ in 

section 502(5)(C) of the Federal Credit 

Reform Act of 1990, which is the net 

present value, at the time the Loan 

Guarantee Agreement is executed, of the 

following estimated cash flows, 

discounted to the point of disbursement: 

(i) Payments by the Government to 

cover defaults and delinquencies, 

interest subsidies, or other payments; 

less 

(ii) Payments to the Government 

including origination and other fees, 

penalties, and recoveries; including the 

effects of changes in loan or debt terms 

resulting from the exercise by the 

Borrower, Eligible Lender, or other 

Holder of an option included in the 

Loan Guarantee Agreement. 

Davis-Bacon Act means the statute 

referenced in section 1702(k) of the Act. 

DOE means the United States 

Department of Energy. 

Eligible Lender means either: 

(i) Any Person formed for the purpose 

of, or engaged in the business of, 

lending money that, as determined by 

DOE in each case, is: 

(A) Not debarred or suspended from 

participation in a Federal Government 

contract or participation in a nonprocurement activity (under a set of 

uniform regulations implemented for 

numerous agencies, such as DOE, at 2 

CFR part 180); 

(B) Not delinquent on any Federal 

debt or loan; 

(C) Legally authorized and 

empowered to enter into loan guarantee 

transactions authorized by the Act and 

this part; 

(D) Able to demonstrate experience in 

originating and servicing loans for 

commercial projects similar in size and 

scope to the Eligible Project, or able to 

procure such experience through 

contracts acceptable to DOE; and 

(E) Able to demonstrate experience as 

the lead lender or underwriter by 

presenting evidence of its participation 

in large commercial projects or energyrelated projects or other relevant 

experience, or able to procure such 

experience through contracts acceptable 

to DOE; or 

(ii) The Federal Financing Bank. 

Eligible Project means a project that: 

(i) Is located in the United States at 

one location, except that the project may 

be located at two or more locations in 

the United States if the project is 

comprised of installations or facilities 

employing a single New or Significantly 

Improved Technology that is deployed 

pursuant to an integrated and 

comprehensive business plan. An 

Eligible Project in more than one 

location is a single Eligible Project; 

(ii) Deploys a New or Significantly 

Improved Technology; and 

(iii) Satisfies all applicable 

requirements of section 1703 of the Act, 

the applicable Solicitation, and this 

part. For purposes of this paragraph (iii): 

(A) Eligible Projects may include 

manufacturing, recycling, processing, 

reprocessing, remediation, or reuse of 

materials, components, or 

subcomponents involving critical 

minerals, critical minerals production, 

or the supply chain for such materials, 

as set forth in Executive Order 13953 

(‘‘Executive Order Addressing the 

Threat to the Domestic Supply Chain 

from Reliance on Critical Minerals from 

Foreign Adversaries,’’ dated September 

20, 2020), and Executive Order 13817 

(‘‘A Federal Strategy to Ensure Secure 

and Reliable Supplies of Critical 

Minerals,’’ dated December 20, 2017), as 

amended, to the extent such critical 

minerals-related activities are eligible 

under section 1703 of the Act; and 

(B) Some avoidance, reduction, or 

sequestration of air pollutants or 

anthropogenic emissions of greenhouse 

gases by a proposed project, or 

facilitated by such project, where 

applicable, shall be deemed to satisfy 

the requirement of section 1703(a)(1). 

Equity means cash contributed to the 

permanent capital stock (or equivalent) 

of the Borrower or the Eligible Project 

by the shareholders or other owners of 

the Borrower or the Eligible Project. 

Equity does not include proceeds from 

the non-guaranteed portion of a 

Guaranteed Obligation, proceeds from 

any other non-guaranteed loan or 

obligation, or the value of any 

government assistance or support. 

3752 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

Facility Fee means the fee, to be paid 

in the amount and in the manner 

provided in the Term Sheet, to cover the 

Administrative Cost of Issuing a Loan 

Guarantee for the period from the 

Borrower’s acceptance of the Term 

Sheet through issuance of the 

Guarantee. 

Federal Financing Bank means an 

instrumentality of the United States 

Government created by the Federal 

Financing Bank Act of 1973, under the 

general supervision of the Secretary of 

the Treasury. 

Guarantee means the undertaking of 

the United States of America, acting 

through the Secretary pursuant to Title 

XVII of the Energy Policy Act of 2005, 

to pay in accordance with the terms 

thereof, principal and interest of a 

Guaranteed Obligation. 

Guaranteed Obligation means any 

loan or other debt obligation of the 

Borrower for an Eligible Project for 

which DOE guarantees all or any part of 

the payment of principal and interest 

under a Loan Guarantee Agreement 

entered into pursuant to the Act. 

Holder means any Person that holds a 

promissory note made by the Borrower 

evidencing the Guaranteed Obligation 

(or his designee or agent). 

Intercreditor Agreement means any 

agreement or instrument (or amendment 

or modification thereof) among DOE and 

one or more other Persons providing 

financing or other credit arrangements 

to the Borrower or an Eligible Project) or 

that otherwise provides for rights of 

DOE in respect of a Borrower or in 

respect of an Eligible Project, in each 

case in form and substance satisfactory 

to DOE. 

Loan Agreement means a written 

agreement between a Borrower and an 

Eligible Lender containing the terms 

and conditions under which the Eligible 

Lender will make a loan or loans to the 

Borrower for an Eligible Project. 

Loan Guarantee Agreement means a 

written agreement that, when entered 

into by DOE and a Borrower, and, if 

applicable, an Eligible Lender, 

establishes the obligation of DOE to 

guarantee the payment of all or a 

portion of the principal of, and interest 

on, specified Guaranteed Obligations, 

subject to the terms and conditions 

specified in the Loan Guarantee 

Agreement. 

New or Significantly Improved 

Technology means a technology, or a 

defined suite of technologies, concerned 

with the production, consumption, or 

transportation of energy and that is not 

a Commercial Technology, and that has 

either: 

(i) Only recently been developed, 

discovered, or learned; or 

(ii) Involves or constitutes one or 

more meaningful and important 

improvements in productivity or value, 

in comparison to Commercial 

Technologies in use in the United States 

at the time the Term Sheet is issued. 

OMB means the Office of Management 

and Budget in the Executive Office of 

the President. 

Person means any natural person or 

any legally constituted entity, including 

a state or local government, tribe, 

corporation, company, voluntary 

association, partnership, limited 

liability company, joint venture, and 

trust. 

Preliminary Term Sheet means the 

principal terms upon which DOE and 

the Applicant have agreed to in writing 

that will serve as the basis for a Loan 

Agreement or Loan Guarantee 

Agreement, following a determination 

by DOE that such Application 

adequately describes an Eligible Project, 

or a project that has a reasonable 

likelihood of becoming an Eligible 

Project, consistent with § 609.4(a)). 

Project Costs mean those costs, 

including escalation and contingencies, 

that are to be expended or accrued by 

a Borrower and are necessary, 

reasonable, customary, and directly 

related to the design, engineering, 

financing, construction, startup, 

commissioning, and shakedown of an 

Eligible Project, as specified in 

§ 609.10(a). Project Costs do not include 

costs for the items set forth in 

§ 609.10(b). 

Project Sponsor means any Person 

that assumes substantial responsibility 

for the development, financing, and 

structuring of an Eligible Project and, if 

not the Applicant, owns or controls, by 

itself and/or through individuals in 

common or affiliated business entities, a 

five percent or greater interest in the 

proposed Eligible Project, the Borrower, 

or the Applicant. 

Risk-Based Charge means a charge 

that, together with the principal and 

interest on the guaranteed loan, or at 

such other times as DOE may determine, 

is payable on specified dates during the 

term of a Guaranteed Obligation. 

Secretary means the Secretary of 

Energy or a duly authorized designee or 

successor in interest. 

Solicitation means an announcement 

that DOE is accepting Applications that 

is widely disseminated to the public on 

the DOE website or otherwise. 

Term Sheet means a written offer for 

the issuance of a loan guarantee, 

executed by the Secretary (or a DOE 

official authorized by the Secretary to 

execute such offer), delivered to the 

offeree, that sets forth the detailed terms 

and conditions under which DOE and 

the Applicant will execute a Loan 

Guarantee Agreement. 

United States means the several 

States, the District of Columbia, the 

Commonwealth of Puerto Rico, the 

Virgin Islands, Guam, American Samoa, 

and any territory or possession of the 

United States of America. 

(b) Interpretations. This part shall be 

interpreted using the following 

guidelines. 

(1) The word ‘‘discretion’’ when used 

with reference to DOE, including the 

Secretary, means ‘‘sole discretion.’’ 

(2) Defined terms in the singular shall 

include the plural and vice versa, and 

the masculine, feminine, or neuter 

gender shall include all genders. 

(3) The word ‘‘or’’ is not exclusive. 

(4) References to laws by name or 

popular name are references to the 

version of such law appearing in the 

United States Code and include any 

amendment, supplement, or 

modification of such law, and all 

regulations, rulings, and other laws 

promulgated thereunder. 

(5) References to information or 

documents required or allowed to be 

submitted to DOE mean information or 

documents that are marked as provided 

in 10 CFR 600.15(b). A document or 

information that is not marked as 

provided in 10 CFR 600.15(b) will not 

be considered as having been submitted 

to or received by DOE. 

(6) A reference to a Person includes 

such Person’s successors and permitted 

assigns. 

(7) The words ‘‘include,’’ ‘‘includes,’’ 

and ‘‘including’’ are not limiting and 

mean include, includes and including 

‘‘without limitation’’ and ‘‘without 

limitation by specification.’’ 

(8) The words ‘‘hereof,’’ ‘‘herein,’’ and 

‘‘hereunder’’ and words of similar 

import refer this part as a whole and not 

to any particular provision of this part. 

§ 609.3 Solicitations. 

DOE may invite the submission of 

Applications for loan guarantees for 

Eligible Projects pursuant to a 

Solicitation. 

(a) Each Solicitation must include, at 

a minimum, the following information: 

(1) The dollar amount of loan 

guarantee authority potentially being 

made available by DOE in that 

Solicitation; 

(2) The place for submission of 

Applications; 

(3) The name and address of the DOE 

representative whom a potential 

Applicant may contact to receive further 

information and a copy of the 

Solicitation; 

(4) The form, format, and page limits 

applicable to the Application; 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3753 

(5) The amount of the Application Fee 

and any other fees that will be required; 

(6) The programmatic, technical, 

financial, and other factors that DOE 

will use to evaluate response 

submissions, and their relative 

weightings in that evaluation; and 

(7) Such other information as DOE 

may deem appropriate. 

(b) Using procedures as may be 

announced by DOE a potential 

Applicant may request a meeting with 

DOE to discuss its potential 

Application. At its discretion, DOE may 

meet with a potential Applicant, either 

in person or electronically, to discuss its 

potential Application. DOE may provide 

a potential Applicant with a preliminary 

response regarding whether its proposed 

Application may constitute an Eligible 

Project. DOE’s responses to questions 

from potential Applicants and DOE’s 

statements to potential Applicants are 

pre-decisional and preliminary in 

nature. Any such responses and 

statements are subject in their entirety 

to any final action by DOE with respect 

to an Application submitted in 

accordance with § 609.4. 

§ 609.4 Submission of applications. 

(a) In response to a Solicitation, an 

Applicant must meet all requirements 

and provide all information specified in 

this part and the Solicitation in the 

manner and on or before the date 

specified in the Solicitation. DOE may 

direct that Applications be submitted in 

more than one part; provided, that the 

parts of such Application, taken as a 

whole, satisfy the requirements of 

paragraph (d) of this section and this 

part. In such event, subsequent parts of 

an Application may be filed only after 

DOE invites an Applicant to make an 

additional submission. If DOE directs 

that Applications be submitted in more 

than one part, the initial part of an 

Application shall contain information 

sufficient for DOE to determine that the 

project proposed by an Applicant will 

be, or may reasonably become, an 

Eligible Project, and to evaluate such 

project’s readiness to proceed. If there 

have been any material amendments, 

modifications, or additions made to the 

information previously submitted by an 

Applicant, the Applicant shall provide 

a detailed description thereof, including 

any changes in the proposed project’s 

financing structure or other terms, 

promptly upon request by DOE. Where 

DOE has directed that an Application be 

submitted in parts, DOE may provide for 

payment of the Application Fee in parts. 

(b) An Applicant may submit only 

one Application for one proposed 

project using a particular technology. 

An Applicant may not submit an 

Application or Applications for 

multiple Eligible Projects using the 

same technology. An Applicant may 

submit Applications for multiple 

proposed projects using different 

technologies. For purposes of this 

paragraph (b), the term Applicant shall 

include the Project Sponsor and any 

subsidiaries or affiliates of the Project 

Sponsor. 

(c) The open application period shall 

be rolling, and DOE may accept 

Applications at any time. 

(d) An Application must include, at a 

minimum, the following information 

and materials: 

(1) A completed Application form 

signed by an individual with full 

authority to bind the Applicant, 

including the commitments and 

representations made in each part of the 

Application; 

(2) The applicable Application Fee; 

(3) A description of how, and to what 

measurable extent, the proposed project 

avoids, reduces, or sequesters air 

pollutants and/or anthropogenic 

emissions of greenhouse gases at any 

level, including how to measure and 

verify those effects; there is not a 

minimum threshold of avoidance, 

reduction, or sequestration of air 

pollutants and/or anthropogenic 

emissions of greenhouse gases that a 

proposed project must show to be 

accepted so long as some reduction is 

reasonably demonstrated; 

(4) A description of the nature and 

scope of the proposed project (with 

preliminary information where 

appropriate), including: 

(i) Key project milestones; 

(ii) Location or locations of the 

proposed project; 

(iii) Identification and commercial 

feasibility of the New or Significantly 

Improved Technology to be deployed; 

(iv) How the Applicant intends to 

deploy such New or Significantly 

Improved Technology in the proposed 

project; and 

(v) How the Applicant intends to 

assure, to the extent possible, the further 

commercial availability of the New or 

Significantly Improved Technology in 

the United States; 

(5) An explanation of how the 

proposed project qualifies as a project 

within the category or categories of 

projects referred to in the Solicitation; 

(6) A detailed estimate of the total 

Project Costs together with a description 

of the methodology and assumptions 

used; 

(7) A detailed description of the 

engineering and design contractor(s), 

construction contractor(s), and 

equipment supplier(s); 

(8) The construction schedules for the 

proposed project, including major 

activity and cost milestones; 

(9) A description of the material terms 

and conditions of the development and 

construction contracts to include the 

performance guarantees, performance 

bonds, liquidated damages provisions, 

and equipment warranties; 

(10) A detailed description of the 

operations and maintenance provider(s), 

the proposed project operating plan, 

estimated staffing requirements, parts 

inventory, major maintenance schedule, 

estimated annual downtime, and 

performance guarantees and related 

liquidated damage provisions, if any; 

(11) A description of the management 

plan of operations to be employed in 

carrying out the proposed project, and 

information concerning the management 

experience of each officer or key person 

associated with the proposed project; 

(12) A detailed description of the 

proposed project decommissioning, 

deconstruction, and disposal plan, and 

the anticipated costs associated 

therewith; 

(13) An analysis of the market for any 

product (including but not limited to 

electricity and chemicals) to be 

produced by, or services to be provided 

by, the proposed project, including 

relevant economics justifying the 

analysis, and copies of: 

(i) Any contracts, or draft contracts 

reflecting the current state of actual 

negotiations between relevant parties, 

for the sale of such products or the 

provision of such services; or 

(ii) Any other assurance of the 

revenues to be generated from sale of 

such products or provision of such 

services; 

(14) A detailed description of the 

overall financial plan for the proposed 

project, including all sources and uses 

of funding, equity and debt, and the 

liability of parties associated with the 

proposed project over the term of the 

Loan Guarantee Agreement; 

(15) A copy of all material 

agreements, whether entered into or 

proposed, relevant to the investment, 

design, engineering, financing, 

construction, startup commissioning, 

shakedown, operations, and 

maintenance of the proposed project; 

(16) A copy of the financial closing 

checklist for the equity and debt to the 

extent available; 

(17) The Applicant’s business plan on 

which the proposed project is based and 

Applicant’s financial model with 

respect to the proposed project for the 

proposed term of the Guaranteed 

Obligations, including, as applicable, 

pro forma income statements, balance 

sheets, and cash flows. All such 

3754 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

information and data must include 

assumptions made in their preparation 

and the range of revenue, operating cost, 

and credit assumptions considered; 

(18) Financial statements for the three 

immediately preceding fiscal years of 

the Applicant (or such shorter period as 

the Applicant has been in existence) 

that have been audited by an 

independent certified public accounting 

firm, including all associated 

certifications, notes and letters to 

management, as well as interim 

financial statements and notes for the 

current fiscal year for the Applicant and 

all other Persons the credit of which is 

material to the success of the 

transactions described in the 

Application; 

(19) A copy of all legal opinions, and 

other material reports, analyses, and 

reviews related to the proposed project 

that have been delivered prior to 

submission of any part of the 

Application; 

(20) An engineering report prepared 

by an engineer with experience in the 

industry and familiarity with similar 

projects. The report should address the 

proposed project’s siting and permitting 

arrangements, engineering and design, 

contractual requirements, 

environmental compliance, testing, 

commissioning and operations, and 

maintenance; 

(21) A credit history of the Applicant 

and each Project Sponsor; 

(22) A preliminary credit assessment 

for the proposed project without a loan 

guarantee from a nationally recognized 

rating agency for projects where the 

estimated total Project Costs exceed $25 

million. For proposed projects where 

the total estimated Project Costs are $25 

million or less and where conditions 

justify, in the sole discretion of the 

Secretary, DOE may require such an 

assessment; 

(23) A list showing the status of and 

estimated completion date of 

Applicant’s required applications for 

Federal, state, and local permits, 

authorizations or approvals to site, 

construct, and operate the proposed 

project; 

(24) A report containing an analysis of 

the potential environmental impacts of 

the proposed project that will enable 

DOE to— 

(i) Assess whether the proposed 

project will comply with all applicable 

environmental requirements; and 

(ii) Undertake and complete any 

necessary reviews under the National 

Environmental Policy Act of 1969; 

(25) A listing and description of the 

assets of or to be utilized for the benefit 

of the proposed project, and of any other 

asset that will serve as collateral 

pledged in respect of the Guaranteed 

Obligations, including appropriate data 

as to the value of such assets and the 

useful life of any physical assets. With 

respect to real property assets listed, an 

appraisal that is consistent with the 

‘‘Uniform Standards of Professional 

Appraisal Practice,’’ promulgated by the 

Appraisal Standards Board of the 

Appraisal Foundation, and performed 

by licensed or certified appraisers, is 

required; 

(26) An analysis demonstrating that, 

at the time of the Application, there is 

a reasonable prospect that Borrower will 

be able to repay the Guaranteed 

Obligations (including interest) 

according to their terms, and a complete 

description of the operational and 

financial assumptions and 

methodologies on which this 

demonstration is based; and 

(27) If proposed project assets or 

facilities are or will be jointly owned by 

the Applicant and one or more other 

Persons, each of which owns an 

undivided ownership interest in such 

proposed project assets or facilities, a 

description of the Applicant’s rights and 

obligations in respect of its undivided 

ownership interest in such proposed 

project assets or facilities. 

(e) During the Application evaluation 

process pursuant to § 609.5, DOE may 

request additional information, 

potentially including a preliminary 

credit rating or credit assessment, with 

respect to the proposed project. 

(f) DOE will not consider any part of 

any Application or the Application as a 

whole complete unless the Application 

Fee (or the required portion of the 

Application Fee related to a particular 

part of the Application) has been paid. 

An Application Fee paid in connection 

with one Application is not transferable 

to another Application. Except in the 

discretion of DOE, no portion of the 

Application Fee is refundable. 

(g) DOE has no obligation to evaluate 

an Application that is not complete, and 

may proceed with such evaluation, or a 

partial evaluation, only in its discretion. 

(h) Unless an Applicant requests an 

extension and such an extension is 

granted by DOE in its discretion, an 

Application may be rejected if it is not 

complete within four years from the 

date of submission (or date of 

submission of the first part thereof, in 

the case of Applications made in more 

than one part). 

(i) Upon making a determination to 

engage independent consultants or 

outside counsel with respect to an 

Application, DOE will proceed to 

evaluate and process such Application 

only following execution by an 

Applicant or Project Sponsor, as 

appropriate, of an agreement satisfactory 

to DOE to pay the fees and expenses 

charged by the independent consultants 

and outside legal counsel. 

(j) Following a determination by DOE 

that an Application or, if applicable, the 

initial part of an Application, 

adequately describes an Eligible Project, 

or a project that may reasonably become 

an Eligible Project, DOE may offer a 

Preliminary Term Sheet to be utilized 

by an Applicant for the purpose of 

obtaining its third party contracts or 

offtake agreements, or for any other 

lawful purpose that may reasonably 

assist an Applicant in obtaining the 

information or conditional agreements 

required to complete an Application, 

subject to any terms and conditions 

required by DOE and applicable law. 

DOE may issue a Preliminary Term 

Sheet only if it determines that an 

Applicant has shown in an Application 

or, if applicable, the initial part of an 

Application, a reasonable likelihood of 

being able to satisfy the requirements of 

the Act and enter into a Conditional 

Commitment, but for the lack of a 

Preliminary Term Sheet. The Applicant 

shall be responsible for payment of any 

fees assessed or costs incurred by DOE 

that are associated with the issuance of 

the Preliminary Term Sheet. 

Notwithstanding any provision of a 

Preliminary Term Sheet to the contrary, 

the issuance of a Preliminary Term 

Sheet shall impose no obligation on 

DOE to proceed with an Application, or 

to enter into a Conditional Commitment, 

which matters shall be governed 

exclusively by the Act and the 

requirements set forth in § 609.5. 

Further, DOE may, in its sole discretion, 

terminate or rescind a Preliminary Term 

Sheet should an Applicant fail to meet 

any of the terms and conditions 

required therein. 

(k) At any time in the lending process, 

the Secretary of Energy may exercise his 

deviation authority under § 609.16 to 

make such deviations from this part as 

he may deem to be in the best interests 

of DOE, where such deviation supports 

program objectives and the special 

circumstances stated in any deviation 

request are clearly in the best interests 

of the Government. 

(l) DOE shall respond, in writing, to 

any inquiry by an Applicant about the 

status of its Application within ten (10) 

business days of receipt of such request. 

§ 609.5 Programmatic, technical, and 

financial evaluation of applications. 

(a) In reviewing completed 

Applications, and in prioritizing and 

selecting those as to which a Term Sheet 

should be offered, DOE will apply the 

criteria set forth in the Act, any 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3755 

applicable Solicitation, and this part. 

Applications will be considered in a 

competitive process, i.e. each 

Application will be evaluated against 

other Applications responsive to the 

Solicitation. At any time, DOE may 

request additional information or 

supporting documentation from an 

Applicant. Applications will be denied 

if: 

(1) The proposed project is not an 

Eligible Project, however, DOE may 

provide an Applicant with a reasonable 

opportunity to correct or amend any 

Application in order to meet the 

conditions for an Eligible Project; 

(2) The applicable technology is not 

ready to be deployed commercially in 

the United States, cannot yield a 

commercially viable product or service 

in the use proposed in the Application, 

does not have the potential to be 

deployed in other commercial projects 

in the United States, or is not or will not 

be available for further commercial use 

in the United States; 

(3) The Person proposed to issue the 

loan or purchase other debt obligations 

constituting the Guaranteed Obligations 

is not an Eligible Lender; 

(4) The proposed project is for 

demonstration, research, or 

development; 

(5) Significant Equity for the proposed 

project will not be provided by the date 

of issuance of the Guaranteed 

Obligations, or such later time as DOE 

in its discretion may determine; or 

(6) The proposed project does not 

present a reasonable prospect of 

repayment of the Guaranteed 

Obligations. 

(b) If an Application has not been 

denied pursuant to paragraph (a) of this 

section, DOE will evaluate the proposed 

project based on the criteria set forth in 

the Act, any applicable Solicitation, and 

the following: 

(1) To what measurable extent the 

proposed project avoids, reduces, or 

sequesters air pollutants or 

anthropogenic emissions of greenhouses 

gases, as applicable, or contributes to 

the avoidance, reduction or 

sequestration of air pollutants or 

anthropogenic emissions of greenhouse 

gases; 

(2) To what extent the technology to 

be deployed in the proposed project— 

(i) Is ready to be deployed 

commercially in the United States, can 

be replicated, yields a commercially 

viable product or service in the use 

proposed in the proposed project, has 

potential to be deployed in other 

commercial projects in the United 

States, and is or will be available for 

further commercial use in the United 

States; and 

(ii) Constitutes an important 

improvement in technology, as 

compared to available Commercial 

Technologies, used to avoid, reduce or 

sequester air pollutants or 

anthropogenic emissions of greenhouse 

gases, as applicable; 

(3) To what extent the Applicant has 

a plan to advance or assist in the 

advancement of that technology into the 

commercial marketplace in the United 

States; 

(4) The extent to which the level of 

proposed support in the Application is 

consistent with a reasonable prospect of 

repayment of the Guaranteed 

Obligations by considering, among other 

factors: 

(i) The extent to which the requested 

amount of the loan guarantee, the 

requested amount of Guaranteed 

Obligations and, if applicable, the 

expected amount of any other financing 

or credit arrangements, are reasonable 

relative to the nature and scope of the 

proposed project; 

(ii) The total amount and nature of the 

Project Costs and the extent to which 

Project Costs are to be funded by 

Guaranteed Obligations; and 

(iii) The feasibility of the proposed 

project and likelihood that it will 

produce sufficient revenues to service 

its debt obligations over the life of the 

loan guarantee and assure timely 

repayment of Guaranteed Obligations; 

(5) The likelihood that the proposed 

project will be ready for full commercial 

operations in the time frame stated in 

the Application; 

(6) The amount of Equity committed 

and to be committed to the proposed 

project by the Borrower, the Project 

Sponsor, and other Persons; 

(7) Whether there is sufficient 

evidence that the Borrower will 

diligently implement the proposed 

project, including initiating and 

completing the proposed project in a 

timely manner; 

(8) Whether and to what extent the 

Applicant will rely upon other Federal 

and non–Federal Government assistance 

such as grants, tax credits, or other loan 

guarantees to support the financing, 

construction, and operation of the 

proposed project and how such 

assistance will impact the proposed 

project; 

(9) The levels of safeguards provided 

to the Federal Government in the event 

of default through collateral, warranties, 

and other assurance of repayment 

described in the Application, including 

the nature of any anticipated 

intercreditor arrangements; 

(10) The Applicant’s, or the relevant 

contractor’s, capacity and expertise to 

operate the proposed project 

successfully, based on factors such as 

financial soundness, management 

organization, and the nature and extent 

of corporate and individual experience; 

(11) The ability of the proposed 

Borrower to ensure that the proposed 

project will comply with all applicable 

laws and regulations, including all 

applicable environmental statutes and 

regulations; 

(12) The levels of market, regulatory, 

legal, financial, technological, and other 

risks associated with the proposed 

project and their appropriateness for a 

loan guarantee provided by DOE; 

(13) Whether the Application contains 

sufficient information, including a 

detailed description of the nature and 

scope of the proposed project and the 

nature, scope, and risk coverage of the 

loan guarantee sought to enable DOE to 

perform a thorough assessment of the 

proposed project; and 

(14) Such other criteria that DOE 

deems relevant in evaluating the merits 

of an Application. 

(c) After DOE completes its review 

and evaluation of a proposed project 

pursuant to paragraph (b) of this section 

and this part, DOE will notify the 

Applicant in writing of its 

determination whether to proceed with 

due diligence and negotiation of a Term 

Sheet in accordance with § 609.6. DOE 

will proceed only if it determines that 

the proposed project is highly qualified 

and suitable for a Guarantee. Upon 

written confirmation from the Applicant 

that it desires to proceed, DOE and the 

Applicant will commence negotiations. 

(d) DOE shall provide all Applicants 

with a reasonable opportunity to correct 

or amend any Application in order to 

meet the criteria set forth in this part or 

any other conditions required by DOE, 

prior to any denial of such Application. 

A determination by DOE not to proceed 

with a proposed project following 

evaluation pursuant to paragraph (b) of 

this section shall be final and nonappealable, but shall not prejudice the 

Applicant or other affected Persons from 

applying for a Guarantee in respect of a 

different proposed project pursuant to 

another, separate Application. Prior to 

DOE’s denial of any Application, DOE 

shall advise the Applicant in writing, 

not less than ten (10) business days 

prior to the effective date of such denial, 

and set forth the reasons for such 

proposed denial along with a list of 

items that may be corrected or amended 

by the Applicant in order to satisfy the 

requirements that would create an 

Eligible Application, if such items can 

be corrected or appropriately amended. 

If requested by any Applicant, DOE 

shall meet with such Applicant in order 

3756 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

to address questions or concerns raised 

by the Applicant. 

§ 609.6 Term sheets and conditional 

commitments. 

(a) DOE, after negotiation of a Term 

Sheet with an Applicant, may offer such 

Term Sheet to an Applicant or such 

other Person that is an affiliate of the 

Applicant and that is acceptable to DOE. 

DOE’s offer of a Term Sheet shall be in 

writing and signed by the Contracting 

Officer. DOE’s negotiation of a Term 

Sheet imposes no obligation on the 

Secretary to offer a Term Sheet to the 

Applicant. 

(b) DOE shall terminate its 

negotiations of a Term Sheet if it has not 

offered a Term Sheet in respect of an 

Eligible Project within four years after 

the date of the written notification set 

forth in § 609.5(c), unless extended in 

writing in the discretion of the 

Contracting Officer. 

(c) If and when the offeree specified 

in a Term Sheet satisfies all terms and 

conditions for acceptance of the Term 

Sheet, including written acceptance 

thereof and payment of all fees specified 

in § 609.11(f) and therein to be paid at 

or prior to acceptance of the Term 

Sheet, the Term Sheet shall become a 

Conditional Commitment. Each 

Conditional Commitment shall include 

an expiration date no more than two 

years from the date it is issued, unless 

extended in writing in the discretion of 

the Contracting Officer. When and if all 

of the terms and conditions specified in 

the Conditional Commitment have been 

met, DOE and the Applicant may enter 

into a Loan Guarantee Agreement. 

(d) If, subsequent to execution of a 

Conditional Commitment, the financing 

arrangements of the Borrower, or in 

respect of an Eligible Project, change 

from those described in the Conditional 

Commitment, the Applicant shall 

promptly provide updated financing 

information in writing to DOE. All such 

updated information shall be deemed to 

be information submitted in connection 

with an Application and shall be subject 

to § 609.4(b). Based on such updated 

information, DOE may take one or more 

of the following actions: 

(1) Determine that such changes are 

not material to the Borrower, the 

Eligible Project or DOE; 

(2) Amend the Conditional 

Commitment accordingly; 

(3) Postpone the expected closing date 

of the associated Loan Guarantee 

Agreement; or 

(4) Terminate the Conditional 

Commitment. 

§ 609.7 Closing on the loan guarantee 

agreement. 

(a) Subsequent to entering into a 

Conditional Commitment with an 

Applicant, DOE, after consultation with 

the Applicant, will set a closing date for 

execution of a Loan Guarantee 

Agreement. 

(b) Prior to or on the closing date of 

a Loan Guarantee Agreement, DOE will 

ensure that: 

(1) One of the following has occurred: 

(i) An appropriation for the Credit 

Subsidy Cost has been made; 

(ii) The Secretary has received from 

the Borrower payment in full for the 

Credit Subsidy Cost and deposited the 

payment into the Treasury; or 

(iii) A combination of one or more 

appropriations under paragraph (b)(1)(i) 

of this section and one or more 

payments from the Borrower under 

paragraph (b)(1)(ii) of this section has 

been made that is equal to the Credit 

Subsidy Cost; 

(2) Pursuant to section 1702(h) of the 

Act, DOE has received from the 

Applicant the remainder of the Facility 

Fee referred to in § 609.11(b); 

(3) OMB has reviewed and approved 

DOE’s calculation of the Credit Subsidy 

Cost of the Guarantee; 

(4) The Department of the Treasury 

has been consulted as to the terms and 

conditions of the Loan Guarantee 

Agreement; 

(5) The Loan Guarantee Agreement 

and related documents contain all terms 

and conditions DOE deems reasonable 

and necessary to protect the interest of 

the United States; 

(6) Each holder of the Guaranteed 

Obligations is an Eligible Lender, and 

the servicer of the Guaranteed 

Obligations meets the servicing 

performance requirements of § 609.9(b); 

(7) DOE has determined the principal 

amount of the Guaranteed Obligations 

expected to be issued in respect of the 

Eligible Project, as estimated at the time 

of issuance, will not exceed 80 percent 

of the Project Costs of the Eligible 

Project; 

(8) All conditions precedent specified 

in the Conditional Commitment are 

either satisfied or waived by the 

Contracting Officer and all other 

applicable contractual, statutory, and 

regulatory requirements have been 

satisfied or waived by the Contracting 

Officer. If the counterparty to the 

Conditional Commitment has not 

satisfied all such terms and conditions 

on or prior to the closing date of the 

Loan Guarantee Agreement, the 

Secretary may, in his discretion, set a 

new closing date, or terminate the 

Conditional Commitment; and 

(9) Where the total Project Costs for an 

Eligible Project are projected to exceed 

$25 million, the Applicant must provide 

a credit rating from a nationally 

recognized rating agency reflecting the 

revised Conditional Commitment for the 

project without a Federal guarantee. 

Where total Project Costs are projected 

to be $25 million or less, the Secretary 

may, on a case-by-case basis, require a 

credit rating. If a credit rating is 

required, an updated rating must be 

provided to the Secretary not later than 

30 days prior to closing. 

§ 609.8 Loan guarantee agreement. 

(a) Only a Loan Guarantee Agreement 

executed by the Contracting Officer can 

obligate DOE to issue a Guarantee in 

respect of Guaranteed Obligations. 

(b) DOE is not bound by oral 

representations. 

(c) Each Loan Guarantee Agreement 

shall contain the following requirements 

and conditions, and shall not be 

executed until the Contracting Officer 

determines that the following 

requirements and conditions are 

satisfied: 

(1) The Federal Financing Bank shall 

be the only Eligible Lender in 

transactions where DOE guarantees 100 

percent (but not less than 100 percent) 

of the principal and interest of the 

Guaranteed Obligations issued under a 

Loan Guarantee Agreement. 

(i) Where DOE guarantees more than 

90 percent of the Guaranteed Obligation, 

the guaranteed portion cannot be 

separated from or ‘‘stripped’’ from the 

non-guaranteed portion of the 

Guaranteed Obligation if the loan is 

participated, syndicated or otherwise 

resold in the secondary market; and 

(ii) Where DOE guarantees 90 percent 

or less of the Guaranteed Obligation, the 

guaranteed portion may be separated 

from or ‘‘stripped’’ from the nonguaranteed portion of the Guaranteed 

Obligation, if the loan is participated, 

syndicated or otherwise resold in the 

secondary debt market. 

(2) The Borrower shall be obligated to 

make full repayment of the principal 

and interest on the Guaranteed 

Obligations and other debt of a 

Borrower over a period of up to the 

lesser of 30 years or 90 percent of the 

projected useful life of the Eligible 

Project’s major physical assets, as 

calculated in accordance with U.S. 

generally accepted accounting 

principles and practices. The nonguaranteed portion (if any) of any 

Guaranteed Obligations must be repaid 

pro rata, and on the same amortization 

schedule, with the guaranteed portion. 

(3) If any financing or credit 

arrangement of the Borrower or relating 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3757 

to the Eligible Project, other than the 

Guaranteed Obligations, has an 

amortization period shorter than that of 

the Guaranteed Obligations, DOE shall 

have determined that the resulting 

financing structure allocates to DOE a 

reasonably proportionate share of the 

default risk, in light of: 

(i) DOE’s share of the total debt 

financing of the Borrower; 

(ii) Risk allocation among the credit 

providers to the Borrower; and 

(iii) Internal and external credit 

enhancements. 

(4) The loan guarantee does not 

finance, either directly or indirectly taxexempt debt obligations, consistent with 

the requirements of section 149(b) of the 

Internal Revenue Code. 

(5) The principal amount of the 

Guaranteed Obligations, when 

combined with funds from other sources 

committed and available to the 

Borrower, shall be sufficient to pay for 

expected Project Costs (including 

adequate contingency amounts), the 

applicable items specified in 

§ 609.10(b), and otherwise to carry out 

the Eligible Project. 

(6) There shall be a reasonable 

prospect of repayment by the Borrower 

of the principal of and interest on the 

Guaranteed Obligations and all of its 

other debt obligations. 

(7) The Borrower shall pledge 

collateral or surety determined by DOE 

to be necessary to secure the repayment 

of the Guaranteed Obligations. Such 

collateral or security may include 

Eligible Project assets and assets not 

related to the Eligible Project. 

(8) The Loan Guarantee Agreement 

and related documents shall include 

detailed terms and conditions that DOE 

deems necessary and appropriate to 

protect the interests of the United States 

in the case of default, including 

ensuring availability of all relevant 

intellectual property rights, technical 

data including software, and technology 

necessary for DOE or any Person 

selected by DOE, to complete, operate, 

convey, and dispose of the defaulted 

Borrower or the Eligible Project. 

(9) The Guaranteed Obligations shall 

not be subordinate to other financing. 

Guaranteed Obligations are not 

subordinate to other financing if the lien 

on property securing the Guaranteed 

Obligations, together with liens that are 

pari passu with such lien, if any, take 

priority or precedence over other 

charges or encumbrances upon the same 

property and must be satisfied before 

such other charges are entitled to 

participate in proceeds of the property’s 

sale. In DOE’s discretion, Guaranteed 

Obligations may share a lien position 

with other financing. 

(10) There is satisfactory evidence 

that the Borrower will diligently pursue 

the Eligible Project and is willing, 

competent, and capable of performing 

its obligations under the Loan Guarantee 

Agreement and the loan documentation 

relating to its other debt obligations. 

(11) The Borrower shall have paid all 

fees and expenses due to DOE or the 

U.S. Government, including such 

amount of the Credit Subsidy Cost as 

may be due and payable from the 

Borrower pursuant to the Conditional 

Commitment, upon execution of the 

Loan Guarantee Agreement. 

(12) The Borrower, any Eligible 

Lender, and each other relevant party 

shall take, and be obligated to continue 

to take, those actions necessary to 

perfect and maintain liens on collateral 

in respect of the Guaranteed 

Obligations. 

(13) DOE or its representatives shall 

have access to the offices of the 

Borrower and the Eligible Project site at 

all reasonable times in order to monitor 

the— 

(i) Performance by the Borrower of its 

obligations under the Loan Guarantee 

Agreement; and 

(ii) Performance of the Eligible 

Project. 

(14) DOE and Borrower have reached 

an agreement regarding the information 

that will be made available to DOE and 

the information that will be made 

publicly available. 

(15) The Borrower shall have filed 

applications for or obtained any 

required regulatory approvals for the 

Eligible Project and is in compliance, or 

promptly will be in compliance, where 

appropriate, with all Federal, state, and 

local regulatory requirements. 

(16) The Borrower shall have no 

delinquent Federal debt. 

(17) The Project Sponsors have made 

or will make a significant Equity 

investment in the Borrower or the 

Eligible Project, and will maintain 

control of the Borrower or the Eligible 

Project as agreed in the Loan Guarantee 

Agreement. 

(18) The Loan Guarantee Agreement 

and related agreements shall include 

such other terms and conditions as DOE 

deems necessary or appropriate to 

protect the interests of the United 

States. 

(d) The Loan Guarantee Agreement 

shall provide that, in the event of a 

default by the Borrower: 

(1) Interest on the Guaranteed 

Obligations shall accrue at the rate 

stated in the Loan Guarantee Agreement 

or the Loan Agreement, until DOE 

makes full payment of the defaulted 

Guaranteed Obligations and, except 

when such Guaranteed Obligations are 

funded through the Federal Financing 

Bank, DOE shall not be required to pay 

any premium, default penalties, or 

prepayment penalties; and 

(2) The holder of collateral pledged in 

respect of the Guaranteed Obligations 

shall be obligated to take such actions 

as DOE may reasonably require to 

provide for the care, preservation, 

protection, and maintenance of such 

collateral so as to enable the United 

States to achieve maximum recovery. 

(e)(1) An Eligible Lender or other 

Holder may sell, assign or transfer a 

Guaranteed Obligation to another 

Eligible Lender that meets the 

requirements of § 609.9. Such latter 

Eligible Lender shall be required to 

assume all servicing, monitoring, and 

reporting requirements as provided in 

the Loan Guarantee Agreement. Any 

transfer of the servicing, monitoring, 

and reporting functions shall be subject 

to the prior written approval of DOE. 

(2) The Secretary, or the Secretary’s 

designee or contractual agent, for the 

purpose of identifying Holders with the 

right to receive payment under the 

Guaranteed Obligations, shall include in 

the Loan Guarantee Agreement or 

related documents a procedure for 

tracking and identifying Holders of 

Guaranteed Obligations. Any 

contractual agent approved by the 

Secretary to perform this function may 

transfer or assign this responsibility 

only with the Secretary’s prior written 

approval. 

(f) Each Loan Guarantee Agreement 

shall require the Borrower to make 

representations and warranties, agree to 

covenants, and satisfy conditions 

precedent to closing and to each 

disbursement that, in each case, relate to 

its compliance with the Davis-Bacon 

Act and the Cargo Preference Act. 

(g) The Applicant, the Borrower, or 

the Project Sponsor must estimate, 

calculate, record, and provide to DOE 

any time DOE requests such information 

and at the times provided in the Loan 

Guarantee Agreement all costs incurred 

in the design, engineering, financing, 

construction, startup, commissioning, 

and shakedown of the Eligible Project in 

accordance with generally accepted 

accounting principles and practices. 

§ 609.9 Lender servicing requirements. 

(a) When reviewing and evaluating a 

proposed Eligible Project, all Eligible 

Lenders (other than the Federal 

Financing Bank) shall at all times 

exercise the level of care and diligence 

that a reasonable and prudent lender 

would exercise when reviewing, 

evaluating, and disbursing a loan made 

by it without a Federal guarantee. 

3758 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

(b) Loan servicing duties shall be 

performed by an Eligible Lender, DOE, 

or another qualified loan servicer 

approved by DOE. When performing its 

servicing duties, the loan servicer shall 

at all times exercise the level of care and 

diligence that a reasonable and prudent 

lender would exercise when servicing a 

loan made without a Federal guarantee, 

including: 

(1) During the construction period, 

monitoring the satisfaction of all of the 

conditions precedent to all loan 

disbursements, as provided in the Loan 

Guarantee Agreement, Loan Agreement, 

or related documents; 

(2) During the operational phase, 

monitoring and servicing the 

Guaranteed Obligations and collection 

of the outstanding principal and 

accrued interest as well as undertaking 

to ensure that the collateral package 

securing the Guaranteed Obligations 

remains uncompromised; and 

(3) Until the Guaranteed Obligation 

has been repaid, providing annual or 

more frequent financial and other 

reports on the status and condition of 

the Guaranteed Obligations and the 

Eligible Project, and promptly notifying 

DOE if it becomes aware of any 

problems or irregularities concerning 

the Eligible Project or the ability of the 

Borrower to make payment on the 

Guaranteed Obligations or its other debt 

obligations. 

§ 609.10 Project costs. 

(a) Project Costs include: 

(1) Costs of acquisition, lease, or 

rental of real property, including 

engineering fees, surveys, title 

insurance, recording fees, and legal fees 

incurred in connection with land 

acquisition, lease or rental, site 

improvements, site restoration, access 

roads, and fencing; 

(2) Costs of engineering, architectural, 

legal and bond fees, and insurance paid 

in connection with construction of the 

facility; 

(3) Costs of equipment purchases, 

including a reasonable reserve of spare 

parts to the extent required; 

(4) Costs to provide facilities and 

services related to safety and 

environmental protection; 

(5) Costs of financial, legal, and other 

professional services, including services 

necessary to obtain required licenses 

and permits and to prepare 

environmental reports and data; 

(6) Costs of issuing Eligible Project 

debt, such as fees, transaction, and costs 

referred to in paragraph (a)(5) of this 

section, and other customary charges 

imposed by Eligible Lenders; 

(7) Costs of necessary and appropriate 

insurance and bonds of all types 

including letters of credit and any 

collateral required therefor; 

(8) Costs of design, engineering, 

startup, commissioning, and 

shakedown; 

(9) Costs of obtaining licenses to 

intellectual property necessary to 

design, construct, and operate the 

Eligible Project; 

(10) To the extent required by the 

Loan Guarantee Agreement and not 

intended or available for any cost 

referred to in paragraph (b) of this 

section, costs of funding any reserve 

fund, including without limitation, a 

debt service reserve, a maintenance 

reserve, and a contingency reserve for 

cost overruns during construction; 

provided that proceeds of a Guaranteed 

Loan deposited to any reserve fund shall 

not be removed from such fund except 

to pay Project Costs, to pay principal of 

the Guaranteed Loan, or otherwise to be 

used as provided in the Loan Guarantee 

Agreement; 

(11) Capitalized interest necessary to 

meet market requirements and other 

carrying costs during construction; and 

(12) Other necessary and reasonable 

costs, including, without limitation, 

previously acquired real estate, 

equipment, or other materials, and any 

engineering, construction, make-ready, 

design, permitting, or other work 

completed on an existing facility or 

project. 

(b) Project Costs do not include: 

(1) Fees and commissions charged to 

Borrower, including finder’s fees, for 

obtaining Federal or other funds; 

(2) Parent corporation or other 

affiliated entity’s general and 

administrative expenses, and non– 

Eligible Project related parent 

corporation or affiliated entity 

assessments, including organizational 

expenses; 

(3) Goodwill, franchise, trade, or 

brand name costs; 

(4) Dividends and profit sharing to 

stockholders, employees, and officers; 

(5) Research, development, and 

demonstration costs of readying an 

innovative technology for employment 

in a commercial project; 

(6) Costs that are excessive or are not 

directly required to carry out the 

Eligible Project, as determined by DOE; 

(7) Expenses incurred after startup, 

commissioning, and shakedown of the 

facility, or, in DOE’s discretion, any 

portion of the facility that has 

completed startup, commissioning, and 

shakedown; 

(8) Borrower-paid Credit Subsidy 

Costs, the Administrative Cost of Issuing 

a Loan Guarantee, and any other fee 

collected by DOE; and 

(9) Operating costs. 

§ 609.11 Fees and charges. 

(a) Unless explicitly authorized by 

statute, no funds obtained from the 

Federal Government, or from a loan or 

other instrument guaranteed by the 

Federal Government, may be used to 

pay for the Credit Subsidy Cost, the 

Application Fee, the Facility Fee, the 

Guarantee Fee, the maintenance fee, and 

any other fees charged by or paid to 

DOE relating to the Act or any 

Guarantee thereunder. An applicant 

may, at any time, use non-Federal 

monies to pay the Credit Subsidy Cost 

or DOE fees. 

(b) DOE may charge Applicants a nonrefundable Facility Fee, with a portion 

being payable on or prior to the date on 

which the Applicant executes the 

Commitment Letter and the remainder 

being payable on or prior to the closing 

date for the Loan Guarantee Agreement. 

(c) In order to encourage and 

supplement private lending activity 

DOE may collect from Borrowers for 

deposit in the United States Treasury a 

non-refundable Risk–Based Charge 

which, together with the interest rate on 

the Guaranteed Obligation that LPO 

determines to be appropriate, will take 

into account the prevailing rate of 

interest in the private sector for similar 

loans and risks. The Risk–Based Charge 

shall be paid at such times and in such 

manner as may be determined by DOE, 

but no less frequently than once each 

year, commencing with payment of a 

pro-rated payment on the date the 

Guarantee is issued. The amount of the 

Risk-Based Charge will be specified in 

the Loan Guarantee Agreement. 

(d) DOE may collect a maintenance 

fee to cover DOE’s administrative 

expenses, other than extraordinary 

expenses, incurred in servicing and 

monitoring a Loan Guarantee 

Agreement. The maintenance fee shall 

accrue from the date of execution of the 

Loan Guarantee Agreement through the 

date of payment in full of the related 

Guaranteed Obligations. If DOE 

determines to collect a maintenance fee, 

it shall be paid by the Borrower each 

year (or portion thereof) in advance in 

the amount specified in the applicable 

Loan Guarantee Agreement. 

(e) In the event a Borrower or an 

Eligible Project experiences difficulty 

relating to technical, financial, or legal 

matters or other events (e.g., engineering 

failure or financial workouts), the 

Borrower shall be liable as follows: 

(1) If such difficulty requires DOE to 

incur time or expenses beyond those 

customarily expended to monitor and 

administer performing loans, DOE may 

collect an extraordinary expenses fee 

from the Borrower that will reimburse 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3759 

DOE for such time and expenses, as 

determined by DOE; and 

(2) For all fees and expenses of DOE’s 

independent consultants and outside 

counsel, to the extent that such fees and 

expenses are elected to be paid by DOE 

notwithstanding the provisions of 

paragraphs (f) and (g) of this section. 

(f) Each Applicant, Borrower, or 

Project Sponsor, as applicable, shall be 

responsible for the payment of all fees 

and expenses charged by DOE’s 

independent consultants and outside 

legal counsel in connection with an 

Application, Conditional Commitment, 

or Loan Guarantee Agreement, as 

applicable. Upon making a 

determination to engage independent 

consultants or outside counsel with 

respect to an Application, DOE will 

proceed to evaluate and process such 

Application only following execution by 

an Applicant or Project Sponsor, as 

appropriate, of an agreement satisfactory 

to DOE to pay the fees and expenses 

charged by the independent consultants 

and outside legal counsel. Appropriate 

provisions regarding payment of such 

fees and expenses shall also be included 

in each Term Sheet and Loan Guaranty 

Agreement or, upon a determination by 

DOE, in other appropriate agreements. 

(g) Notwithstanding payment by 

Applicant, Borrower, or Project 

Sponsor, all services rendered by an 

independent consultant or outside legal 

counsel to DOE in connection with an 

Application, Conditional Commitment, 

or Loan Guarantee Agreement shall be 

solely for the benefit of DOE (and such 

other creditors as DOE may agree in 

writing). DOE may require, in its 

discretion, the payment of an advance 

retainer to such independent 

consultants or outside legal counsel as 

security for the collection of the fees 

and expenses charged by the 

independent consultants and outside 

legal counsel. In the event an Applicant, 

Borrower, or Project Sponsor fails to 

comply with the provisions of such 

payment agreement, DOE in its 

discretion, may stop work on or 

terminate an Application, a Conditional 

Commitment, or a Loan Guarantee 

Agreement, or may take such other 

remedial measures in its discretion as it 

deems appropriate. 

(h) DOE shall not be financially liable 

under any circumstances to any 

independent consultant or outside 

counsel for services rendered in 

connection with an Application, 

Conditional Commitment, or Loan 

Guarantee Agreement except to the 

extent DOE has previously entered into 

an express written agreement to pay for 

such services. 

§ 609.12 Full faith and credit and 

incontestability. 

The full faith and credit of the United 

States is pledged to the payment of 

principal and interest of Guaranteed 

Obligations pursuant to Guarantees 

issued in accordance with the Act and 

this part. The issuance by DOE of a 

Guarantee shall be conclusive evidence 

that it has been properly obtained; that 

the underlying loan qualified for such 

Guarantee; and that, but for fraud or 

material misrepresentation by the 

Holder, such Guarantee shall be legal, 

valid, binding, and enforceable against 

DOE in accordance with its terms. 

§ 609.13 Default, demand, payment, and 

foreclosure on collateral. 

(a) If a Borrower defaults in making a 

required payment of principal or 

interest on a Guaranteed Obligation and 

such default has not been cured within 

the applicable grace period, the Holder 

may make written demand for payment 

upon the Secretary in accordance with 

the terms of the applicable Guarantee. If 

a Borrower defaults in making a 

required payment of principal or 

interest on a Guaranteed Obligation and 

such default has not been cured within 

the applicable grace period, the 

Secretary shall notify the Attorney 

General. 

(b) Subject to the terms of the 

applicable Guarantee, the Secretary 

shall make payment within 60 days after 

receipt of written demand for payment 

from the Holder, provided that the 

demand for payment complies in all 

respects with the terms of the applicable 

Guarantee. Interest shall accrue to the 

Holder at the rate stated in the 

promissory note evidencing the 

Guaranteed Obligation, without giving 

effect to the Borrower’s default in 

making a required payment of principal 

or interest on the applicable Guarantee 

Obligation or any other default by the 

Borrower, until the Guaranteed 

Obligation has been fully paid by DOE. 

Payment by the Secretary on the 

applicable Guarantee does not change 

Borrower’s obligations under the 

promissory note evidencing the 

Guaranteed Obligation, Loan Guarantee 

Agreement, Loan Agreement, or related 

documents, including an obligation to 

pay default interest. 

(c) Following payment by the 

Secretary pursuant to the applicable 

Guarantee, upon demand by DOE, the 

Holder shall transfer and assign to the 

Secretary (or his designee or agent) the 

promissory note evidencing the 

Guaranteed Obligation, all rights and 

interests of the Holder in the 

Guaranteed Obligation, and all rights 

and interests of the Holder in respect of 

the Guaranteed Obligation, except to the 

extent that the Secretary determines that 

such promissory note or any of such 

rights and interests shall not be 

transferred and assigned to the 

Secretary. Such transfer and assignment 

shall include, without limitation, all of 

the liens, security, and collateral rights 

of the Holder (or his designee or agent) 

in respect of the Guaranteed Obligation. 

(d) Following payment by the 

Secretary pursuant to a Guarantee or 

other default of a Guaranteed 

Obligation, the Secretary is authorized 

to protect and foreclose on the 

collateral, take action to recover costs 

incurred by, and all amounts owed to, 

the United States as a result of the 

defaulted Guarantee Obligation, and 

take such other action necessary or 

appropriate to protect the interests of 

the United States. In respect of any such 

authorized actions that involve a 

judicial proceeding or other judicial 

action, the Secretary shall act through 

the Attorney General. The foregoing 

provisions of this paragraph (d) shall 

not relieve the Secretary from its 

obligations pursuant to any applicable 

Intercreditor Agreement. Nothing in this 

paragraph (d) shall limit the Secretary 

from exercising any rights or remedies 

pursuant to the terms of the Loan 

Guarantee Agreement. 

(e) The cash proceeds received as a 

result of any foreclosure on the 

collateral, or other action, shall be 

distributed in accordance with the Loan 

Guarantee Agreement (subject to any 

applicable Intercreditor Agreement). 

(f) The Loan Guarantee Agreement 

shall provide that cash proceeds 

received by the Secretary (or his 

designee or agent) as a result of any 

foreclosure on the collateral or other 

action shall be applied in the following 

order of priority: 

(1) Toward the pro rata payment of 

any costs and expenses (including 

unpaid fees, fees and expenses of 

counsel, contractors and agents, and 

liabilities and advances made or 

incurred) of the Secretary, the Attorney 

General, the Holder, a collateral agent, 

or other responsible person of any of 

them (solely in their individual 

capacities as such and not on behalf of 

or for the benefit of their principals), 

incurred in connection with any 

authorized action following payment by 

the Secretary pursuant to a Guarantee or 

other default of a Guaranteed 

Obligation, or as otherwise permitted 

under the Loan Agreement or Loan 

Guarantee Agreement; 

(2) To pay all accrued and unpaid fees 

due and payable to the Secretary, the 

Attorney General, the Holder, a 

collateral agent, or other responsible 

3760 Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 

person of any of them on a pro rata basis 

in respect of the Guaranteed Obligation; 

(3) To pay all accrued and unpaid 

interest due and payable to the 

Secretary, the Attorney General, the 

Holder, a collateral agent, or other 

responsible person of any of them on a 

pro rata basis in respect of the 

Guaranteed Obligation; 

(4) To pay all unpaid principal of the 

Guaranteed Obligation; 

(5) To pay all other obligations of the 

Borrower under the Loan Guarantee 

Agreement, the Loan Agreement, and 

related documents that are remaining 

after giving effect to the preceding 

provisions and are then due and 

payable; and 

(6) To pay to the Borrower, or its 

successors and assigns, or as a court of 

competent jurisdiction may direct, any 

cash proceeds then remaining following 

the application of all payment described 

in paragraphs (f)(1) through (5) of this 

section. 

(g) No action taken by the Holder or 

its agent or designee in respect of any 

collateral will affect the rights of any 

person, including the Secretary, having 

an interest in the Guaranteed 

Obligations or other debt obligations, to 

pursue, jointly or severally, legal action 

against the Borrower or other liable 

persons, for any amounts owing in 

respect of the Guaranteed Obligation or 

other applicable debt obligations. 

(h) In the event that the Secretary 

considers it necessary or desirable to 

protect or further the interest of the 

United States in connection with 

exercise of rights as a lien holder or 

recovery of deficiencies due under the 

Guaranteed Obligation, the Secretary 

may take such action as he determines 

to be appropriate under the 

circumstances. 

(i) Nothing in this part precludes, nor 

shall any provision of this part be 

construed to preclude, the Secretary 

from purchasing any collateral or 

Holder’s or other Person’s interest in the 

Eligible Project upon foreclosure of the 

collateral. 

(j) Nothing in this part precludes, nor 

shall any provision of this part be 

construed to preclude, forbearance by 

any Holder with the consent of the 

Secretary for the benefit of the Borrower 

and the United States. 

(k) The Holder and the Secretary may 

agree to a formal or informal plan of 

reorganization in respect of the 

Borrower, to include a restructuring of 

the Guaranteed Obligation and other 

applicable debt of the Borrower on such 

terms and conditions as the Secretary 

determines are in the best interest of the 

United States. 

§ 609.14 Preservation of collateral. 

(a) If the Secretary exercises his right 

under the Loan Guarantee Agreement to 

require the holder of pledged collateral 

to take such actions as the Secretary 

(subject to any applicable Intercreditor 

Agreement) may reasonably require to 

provide for the care, preservation, 

protection, and maintenance of such 

collateral so as to enable the United 

States to achieve maximum recovery 

from the collateral, the Secretary shall, 

subject to compliance with the 

Antideficiency Act, 31 U.S.C. 1341 et 

seq., reimburse the holder of such 

collateral for reasonable and appropriate 

expenses incurred in taking actions 

required by the Secretary (unless 

otherwise provided in applicable 

agreements). Except as provided in 

§ 609.13, no party may waive or 

relinquish, without the consent of the 

Secretary, any such collateral to which 

the United States would be subrogated 

upon payment under the Loan 

Guarantee Agreement. 

(b) In the event of a default, the 

Secretary may enter into such contracts 

as he determines are required or 

appropriate, taking into account the 

term of any applicable Intercreditor 

Agreement, to care for, preserve, protect 

or maintain collateral pledged in respect 

of Guaranteed Obligations. The cost of 

such contracts may be charged to the 

Borrower. 

§ 609.15 Audit and access to records. 

Each Loan Guarantee Agreement and 

related documents shall provide that: 

(a) The Eligible Lender, or DOE in 

conjunction with the Federal Financing 

Bank where loans are funded by the 

Federal Financing Bank or other Holder 

or other party servicing the Guaranteed 

Obligations, as applicable, and the 

Borrower, shall keep such records 

concerning the Eligible Project as are 

necessary, including the Application, 

Term Sheet, Conditional Commitment, 

Loan Guarantee Agreement, Credit 

Agreement, mortgage, note, 

disbursement requests and supporting 

documentation, financial statements, 

audit reports of independent accounting 

firms, lists of all Eligible Project assets 

and non-Eligible Project assets pledged 

in respect of the Guaranteed 

Obligations, all off-take and other 

revenue producing agreements, 

documentation for all Eligible Project 

indebtedness, income tax returns, 

technology agreements, documentation 

for all permits and regulatory approvals, 

and all other documents and records 

relating to the Borrower or the Eligible 

Project, as determined by the Secretary, 

to facilitate an effective audit and 

performance evaluation of the Eligible 

Project; and 

(b) The Secretary and the Comptroller 

General, or their duly authorized 

representatives, shall have access, for 

the purpose of audit and examination, 

to any pertinent books, documents, 

papers, and records of the Borrower, 

Eligible Lender, or DOE or other Holder 

or other party servicing the Guaranteed 

Obligation, as applicable. Such 

inspection may be made during regular 

office hours of the Borrower, Eligible 

Lender. or DOE or other Holder, or other 

party servicing the Eligible Project and 

the Guaranteed Obligations, as 

applicable, or at any other time 

mutually convenient. 

§ 609.16 Deviations. 

(a) Whenever permitted by applicable 

law, the Secretary may authorize 

deviations from the requirements of this 

part upon: 

(1) Either receipt from the Applicant, 

Borrower, or Project Sponsor, as 

applicable, of— 

(i) A written request that the Secretary 

deviate from one or more requirements; 

and 

(ii) A supporting statement briefly 

describing one or more justifications for 

such deviation; or 

(iii) A determination by the Secretary 

in his discretion to undertake a 

deviation; 

(2) A finding by the Secretary that 

such deviation supports program 

objectives and the special circumstances 

stated in the request make such 

deviation clearly in the best interest of 

the Government; and 

(3) If the waiver would constitute a 

substantial change in the financial terms 

of the Loan Guarantee Agreement and 

related documents, DOE shall consult 

with OMB and the Secretary of the 

Treasury. 

(b) If a deviation under this section 

results in an increase in the applicable 

Credit Subsidy Cost, such increase shall 

be funded either by additional fees paid 

by the Borrower or on behalf of the 

Borrower by any third party or, if an 

appropriation is available, by means of 

an appropriations act. The Secretary has 

discretion to determine how the cost of 

a deviation is funded. The Secretary 

may waive, alter, or amend, through a 

deviation, all or any part of the 

Application Fee, the Facility Fee, the 

Guarantee Fee, the maintenance fee, and 

any other fees associated with any 

Application, or allow for alternative 

plans to pay such fees over time or 

through any other means agreed upon 

by DOE and the Applicant. 

Federal Register / Vol. 86, No. 10 / Friday, January 15, 2021 / Rules and Regulations 3761 

PART 611—ADVANCED TECHNOLOGY 

VEHICLES MANUFACTURING 

ASSISTANCE PROGRAM 

■ 2. The authority citation for part 611 

continues to read as follows: 

Authority: Pub. L. 110–140 (42 U.S.C. 

17013), Pub. L. 110–329. 

■ 3. Section 611.2 is revised to read as 

follows: 

§ 611.2 Definitions. 

The definitions contained in this 

section apply to provisions contained in 

both this subpart and subpart B of this 

part. 

Adjusted average fuel economy means 

a harmonic production weighted 

average of the combined fuel economy 

of all vehicles in a fleet, which were 

subject to CAFE. 

Advanced technology vehicle means a 

passenger automobile or light truck that 

meets— 

(1) The Bin 5 Tier II emission 

standard established in regulations 

issued by the Administrator of the 

Environmental Protection Agency under 

section 202(i) of the Clean Air Act (the 

Act) (42 U.S.C. 7521(i)), as of the date 

of application, or a lower-numbered Bin 

emission standard; 

(2) Any new emission standard in 

effect for fine particulate matter 

prescribed by the Administrator under 

the Act (42 U.S.C. 7401 et seq.), as of the 

date of application; and 

(3) At least 125 percent of the 

harmonic production weighted average 

combined fuel economy, for vehicles 

with substantially similar attributes in 

model year 2005. 

Agreement means the contractual loan 

arrangement between DOE and a 

Borrower for a loan made by and 

through the Federal Financing Bank 

with the full faith and credit of the 

United States Government on the 

principal and interest. 

Applicant means a party that submits 

a substantially complete application 

pursuant to this part. 

Application means the compilation of 

the materials required by this part to be 

submitted to DOE by an Applicant. One 

Application can include requests for 

one or more loans and one or more 

projects. However, an Application 

covering more than one project must 

contain complete and separable 

information with respect to each project. 

Automobile is used as that term is 

defined in 49 CFR part 523. 

Borrower means an Applicant that 

receives a loan under the program under 

this part. 

CAFE means the Corporate Average 

Fuel Economy program of the Energy 

Policy and Conservation Act, 49 U.S.C. 

32901 et seq. 

Combined fuel economy means the 

combined city/highway miles per gallon 

values, as are reported in accordance 

with section 32904 of title 49, United 

States Code. If CAFE compliance data is 

not available, the combined average fuel 

economy of a vehicle must be 

demonstrated through the use of a peerreviewed model. 

DOE or Department means the United 

States Department of Energy. 

Eligible Facility means a 

manufacturing facility in the United 

States that produces qualifying 

advanced technology vehicles, or 

qualifying components. 

Eligible Project means: 

(1) Reequipping, expanding, or 

establishing a manufacturing facility in 

the United States to produce qualifying 

advanced technology vehicles, or 

qualifying components; or 

(2) Engineering integration performed 

in the United States for qualifying 

advanced technology vehicles and 

qualifying components; or 

(3) Manufacturing, recycling, 

processing, reprocessing, remediation, 

or reuse of materials, components, or 

subcomponents involving critical 

minerals, critical minerals production, 

or the supply chain for such materials, 

as set forth in Executive Order 13953 

(‘‘Executive Order Addressing the 

Threat to the Domestic Supply Chain 

from Reliance on Critical Minerals from 

Foreign Adversaries,’’ dated September 

20, 2020), and Executive Order 13817 

(‘‘A Federal Strategy to Ensure Secure 

and Reliable Supplies of Critical 

Minerals,’’ dated December 20, 2017), as 

amended. 

Engineering integration costs are the 

costs of engineering tasks relating to— 

(1) Incorporating qualifying 

components into the design of advanced 

technology vehicles; and 

(2) Designing tooling and equipment 

and developing manufacturing 

processes and material suppliers for 

production facilities that produce 

qualifying components or advanced 

technology vehicles. 

Equivalent vehicle means a light-duty 

vehicle of the same vehicle 

classification as specified in 10 CFR part 

523. 

Financially viable means a reasonable 

prospect that the Applicant will be able 

to make payments of principal and 

interest on the loan as and when such 

payments become due under the terms 

of the loan documents, and that the 

Applicant has a net present value that 

is positive, taking all costs, existing and 

future, into account. 

Grantee means an entity awarded a 

grant made pursuant to section 136 of 

the Energy Independence and Security 

Act of 2007 and this part. 

Light-duty vehicle means passenger 

automobiles and light trucks. 

Light truck is used as that term is 

defined in 49 CFR part 523. 

Loan Documents mean the Agreement 

and all other instruments, and all 

documentation among DOE, the 

Borrower, and the Federal Financing 

Bank evidencing the making, 

disbursing, securing, collecting, or 

otherwise administering the loan 

[references to loan documents also 

include comparable agreements, 

instruments, and documentation for 

other financial obligations for which a 

loan is requested or issued]. 

Model year is defined as that term is 

defined in 49 U.S.C. 32901. 

Passenger automobile is used as that 

term is defined in 49 CFR part 523. 

Qualifying components means 

components that the DOE determines 

are: 

(1) Designed for advanced technology 

vehicles; and 

(2) Installed for the purpose of 

meeting the performance requirements 

of advanced technology vehicles; or 

(3) Involving critical minerals, as set 

forth in Executive Order 13953 

(‘‘Executive Order Addressing the 

Threat to the Domestic Supply Chain 

from Reliance on Critical Minerals from 

Foreign Adversaries,’’ dated September 

20, 2020), and Executive Order 13817 

(‘‘A Federal Strategy to Ensure Secure 

and Reliable Supplies of Critical 

Minerals,’’ dated December 20, 2017), as 

amended, as a component of advanced 

technology vehicles. 

Secretary means the United States 

Secretary of Energy. 

Security means all property, real or 

personal, tangible or intangible, 

required by the provisions of the Loan 

Documents to secure repayment of any 

indebtedness of the Borrower under the 

Loan Documents. 

[FR Doc. 2020–29278 Filed 1–14–21; 8:45 am] 

BILLING CODE 6450–01–P 

FEDERAL RESERVE SYSTEM 

12 CFR Part 217 

[Docket R–1703] 

RIN 7100–AF77 

Regulatory Capital Rule: Eligible 

Retained Income; Correction 

AGENCY: Board of Governors of the 

Federal Reserve System.