[Federal Register Volume 89, Number 207 (Friday, October 25, 2024)]
[Notices]
[Pages 85180-85182]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-24848]


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DEPARTMENT OF ENERGY


Notice of Availability: Opportunity for Public Feedback on the 
Government-Creditor Agreement

AGENCY: Office of Infrastructure, Department of Energy.

ACTION: Notice of availability; request for comments.

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SUMMARY: The Department of Energy (DOE or the Department) Office of 
Infrastructure is providing notice to the public of an informal 
opportunity to comment on DOE's Government-Creditor Agreement (GCA), 
which is a proposed agreement setting forth the relative rights and 
responsibilities between DOE and entities having a secured interest in 
DOE-funded tangible property or property provided as cost share in a 
DOE financial assistance award. The Department seeks input from 
interested stakeholders but especially encourages lenders and their 
counsels to provide feedback, particularly on whether there are aspects 
of the GCA that may prevent lenders from participating in a financing 
that includes a DOE financial assistance award. This is an informal 
opportunity to comment on the GCA, but DOE intends to make public a 
summary of comments received by general topic area as well as the 
finalized version of the GCA.

[[Page 85181]]


DATES: Written comments on the GCA are requested no later than 11:59 
p.m. (ET) on November 26, 2024.

ADDRESSES: Interested parties may submit comments electronically to 
<a href="/cdn-cgi/l/email-protection#cc8b8f8d8ca4bde2a8a3a9e2aba3ba"><span class="__cf_email__" data-cfemail="2f686c6e6f475e014b404a01484059">[email protected]</span></a> in accordance with the Response Guidelines in section IV 
of this document.

FOR FURTHER INFORMATION CONTACT: Questions may be addressed to Rachel 
Gould, <a href="/cdn-cgi/l/email-protection#7e393d3f3e160f501a111b50191108"><span class="__cf_email__" data-cfemail="d592969495bda4fbb1bab0fbb2baa3">[email protected]</span></a> or (202) 586-6116.

SUPPLEMENTARY INFORMATION:

I. General Overview

    In May 2024, Under Secretary for Infrastructure David Crane issued 
a commercialization and financing memorandum,\1\ affirming the 
imperative to mobilize private sector investment in DOE-funded 
projects. One issue discussed in the memorandum is DOE's tangible 
property interest in connection with its financial assistance awards. 
The memorandum notes the following: ``DOE will enter into one or more 
standardized Consent Agreement(s) with recipients and third-party 
lenders clarifying that DOE's interest in the property will not be 
senior to that of the lender but is expected to be on a pari passu 
basis.'' Currently, many DOE Federal financial assistance recipients 
have terms in their cooperative agreements or grants that are 
consistent with this memorandum.
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    \1\ www.energy.gov/sites/default/files/2024-05/Office%20of%20Infrastructure%20Commercialization%20and%20Financing%20Memo%20052324.pdf.
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    DOE has developed a standardized Consent Agreement (currently 
referred to as the ``Government-Creditor Agreement'' (GCA)) which, 
among other things, provides clarification on lenders rights and 
remedies with respect to DOE's interest in the property, and 
expectations and other reasonable protections in a DOE-funded project. 
DOE is providing an opportunity for informal public comment on the GCA. 
The GCA and additional context for comment is available on the 
Government-Creditor Agreement web page.\2\
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    \2\ https://www.energy.gov/infrastructure/government-creditor-agreement.
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    Prior to reviewing the GCA, it is important to understand the basis 
of DOE's tangible property interest, which is not a typical security 
interest. DOE has prepared a ``User's Guide to DOE's Property Interest 
in DOE Financial Assistance Awards'' \3\ to assist in understanding 
DOE's approach to the relevant financial assistance regulations and 
policies regarding DOE's property interest, and DOE also encourages 
commenters to review this User's Guide prior to providing comments.
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    \3\ www.energy.gov/sites/default/files/2024-10/User's%20Guide%20to%20DOE's%20Property%20Interest%20in%20DOE%20Financ
ial%20Assistance%20Awards.pdf.
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II. Government-Creditor Agreement Overview

    The GCA open for public comment is primarily targeted at 
nonrecourse or limited-recourse project financings with a single 
lender. DOE recognizes that there may be other financing structures and 
that technical adjustments will need to be made to accommodate these 
different forms of financing. Following the finalization of this 
document after the public comment, DOE will develop subsequent versions 
that account for other potential financing structures, such as multiple 
lenders with collateral agents, new or existing corporate level debt, 
etc.
    The GCA contains three articles: Article 1 outlines the rights and 
remedies between the parties, Article 2 outlines notices, and Article 3 
outlines other miscellaneous items. DOE acknowledges that lenders look 
to protect themselves in a downside scenario. In a similar way, DOE 
looks to protect itself and the taxpayer's interests in both the 
property itself and the performance of the award which may depend on 
the continued use of the property. Accordingly, DOE is including 
provisions in the GCA designed to preserve the lender's ability to 
protect its collateral, exercise its fundamental rights under its 
security document, and provide clarity on any sharing of proceeds, if 
applicable, within the confines of the applicable regulatory framework 
for financial assistance awards and DOE policy.

III. Requested Information From Respondents

    DOE is opening the GCA for public comment to gather input in the 
development of a standard GCA template. DOE aims to release a standard 
GCA template by end of Q4 2024 or beginning Q1 2025. DOE may host a 
webinar to explain the GCA and address commonly asked questions 
approximately 15 days into this public comment period. Commenters will 
not receive individual responses. DOE has sole discretion over any 
changes made to the GCA prior to finalizing the GCA. DOE intends to 
provide a summary of comments by general topic as well as publishing 
the final standardized GCA template.
    In reviewing the GCA, DOE encourages commenters to recognize that 
DOE is not a creditor in the traditional commercial sense, which is 
reflected in the GCA. DOE is familiar with long-form intercreditor and 
similar agreements and has carefully considered relevant provisions to 
include in this GCA in the context of financial assistance awards. 
Accordingly, comments that request significant portions of a standard 
intercreditor agreement be incorporated in the GCA without taking into 
account the nature of the DOE-lender relationship or without 
considering the restrictions contained in the financial assistance 
regulatory framework, will not be incorporated. DOE is particularly 
interested in feedback regarding any specific provisions that may not 
have been incorporated in the GCA, or additions or variations to any of 
the included provisions that, without change, would likely prevent 
lenders from participating in a financing that includes a DOE financial 
assistance award. The GCA should be reviewed with this in mind as well 
as a thorough understanding of DOE's undivided reversionary 
interest.\4\
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    \4\ www.energy.gov/sites/default/files/2024-10/User's%20Guide%20to%20DOE's%20Property%20Interest%20in%20DOE%20Financ
ial%20Assistance%20Awards.pdf.
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IV. Response Guidelines

    Interested parties may submit comments electronically to 
<a href="/cdn-cgi/l/email-protection#216662606149500f454e440f464e57"><span class="__cf_email__" data-cfemail="783f3b39381009561c171d561f170e">[email protected]</span></a> no later than 11:59 p.m. (ET) on November 26, 2024. 
Comments received after this date or submitted anonymously will not be 
considered. Responses must be provided as attachments to an email.
    Responses must include respondent name and organization and, if 
possible, include the specific connection(s) to DOE-funded projects. 
DOE recommends that attachments with file sizes exceeding 25 MB be 
compressed (i.e., zipped) to ensure message delivery. Responses must be 
provided as a Microsoft Word (*.docx) or Adobe Acrobat (*.pdf) 
attachment to the email, and no more than 10 pages in length, 12-point 
font, 1-inch margins. Only electronic responses will be accepted.
    DOE strongly prefers that commenters provide narrative comments 
organized by topic area, and not a suggested redline of the GCA.
    Responses including confidential business information should not be 
submitted but will be handled per the following guidance in section V 
of this document.

V. Confidential Business Information

    Because comments are sought for the development of a standard GCA 
template intended for use in a variety of different DOE financial 
assistance

[[Page 85182]]

awards, respondents are strongly advised NOT to include any information 
in their responses that might be considered business sensitive, 
proprietary, or otherwise confidential. DOE may reject any submissions 
containing confidential business information.
    Pursuant to 10 CFR 1004.11, any person submitting information that 
he or she believes to be confidential and exempt by law from public 
disclosure should submit via email two well-marked copies: One copy of 
the document marked ``confidential'' including all the information 
believed to be confidential, and one copy of the document marked ``non-
confidential'' with the information believed to be confidential 
deleted. Failure to comply with these marking requirements may result 
in the disclosure of the unmarked information under the Freedom of 
Information Act or otherwise. The U.S. Government is not liable for the 
disclosure or use of unmarked information and may use or disclose such 
information for any purpose.
    If your response contains confidential, proprietary, or privileged 
information, you must include a cover sheet marked as follows 
identifying the specific pages containing confidential, proprietary, or 
privileged information:

    Notice of Restriction on Disclosure and Use of Data: Pages [list 
applicable pages] of this response may contain confidential, 
proprietary, or privileged information that is exempt from public 
disclosure. Such information shall be used or disclosed only for the 
purposes described in this RFI. The Government may use or disclose 
any information that is not appropriately marked or otherwise 
restricted, regardless of source.

    In addition, (1) the header and footer of every page that contains 
confidential, proprietary, or privileged information must be marked as 
follows: ``Contains Confidential, Proprietary, or Privileged 
Information Exempt from Public Disclosure'' and (2) every line and 
paragraph containing proprietary, privileged, or trade secret 
information must be clearly marked with [[double brackets]] or 
highlighting.

Signing Authority

    This document of the Department of Energy was signed on October 18, 
2024, by David Crane, Under Secretary for Infrastructure, Office of 
Infrastructure, 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 October 22, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
[FR Doc. 2024-24848 Filed 10-24-24; 8:45 am]
BILLING CODE 6450-01-P


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