| 42 USC 5919
TITLE 42--THE PUBLIC HEALTH AND WELFARE
CHAPTER 74--NONNUCLEAR ENERGY RESEARCH AND DEVELOPMENT Jump to the relevant civil rights provision Sec. 5919. Loan guarantees and commitments for alternative fuel
demonstration facilities
(a) Statement of purpose
It is the purpose of this section--
(1) to assure adequate Federal support to foster a demonstration
program to produce alternative fuels from coal, oil shale, biomass,
and other domestic resources;
(2) to authorize assistance, through loan guarantees under
subsection \1\ (b) and (y) of this section for construction and
startup and related costs, to demonstration facilities for the
conversion of domestic coal, oil shale, biomass, and other domestic
resources into alternative fuels; and
---------------------------------------------------------------------------
\1\ So in original. Probably should be ``subsections''.
---------------------------------------------------------------------------
(3) to gather information about the technological, economic,
environmental, and social costs, benefits, and impacts of such
demonstration facilities.
(b) Issuance of obligations for alternative fuel conversion facilities;
terms and conditions; rules and regulations; informational
requirements; concurrence of Secretary of Treasury to terms and
conditions; pledge of full faith and credit of United States;
cooperative agreements for construction, etc., of modular
facilities; bidding practices
(1) Except as provided in paragraph (5) of this subsection and
subsection (y) of this section the Secretary is authorized, in
accordance with such rules and regulations as he shall prescribe after
consultation with the Secretary of the Treasury, to guarantee and to
make commitments to guarantee, in such manner and subject to such
conditions (not inconsistent with the provisions of this chapter) as he
deems appropriate, the payment of interest on, and the principal balance
of, bonds, debentures, notes, and other obligations issued by, or on
behalf of, any borrower for the purpose of financing the construction
and startup costs of demonstration facilities for the conversion of
domestic coal, oil shale, biomass, and other domestic resources into
alternative fuels: Provided, That no loan guarantee for a full sized oil
shale facility shall be provided under this section until after
successful demonstration of a modular facility producing between six and
ten thousand barrels per day, taking into account such considerations as
water usage, environmental effects, waste disposal, labor conditions,
health and safety, and the socioeconomic impacts on local communities:
Provided further, That no loan guarantee shall be available under this
subsection for the manufacture of component parts for demonstration
facilities eligible for assistance under this subsection.
(2) An applicant for any financial assistance under this section
shall provide information to the Secretary in such form and with such
content as the Secretary deems necessary.
(3) Prior to issuing any guarantee under this section the Secretary
shall obtain the concurrence of the Secretary of the Treasury with
respect to the timing, interest rate, and substantial terms and
conditions of such guarantee. The Secretary of the Treasury shall insure
to the maximum extent feasible that the timing, interest rate, and
substantial terms and conditions of such guarantee will have the minimum
possible impact on the capital markets of the United States, taking into
account other Federal direct and indirect securities activities.
(4) The full faith and credit of the United States is pledged to the
payment of all guarantees issued under this section with respect to
principal and interest.
(5)(A) The Secretary is authorized, in the case of a facility for
the conversion of oil shale to alternative fuels which is determined by
the Secretary pursuant to the proviso in paragraph (1) of this
subsection, to be constructed at a modular size, to enter into a
cooperative agreement with the applicant in accordance with section 5907
of this title and the other provisions of this chapter to share the
estimated total design and construction costs, plus operation and
maintenance costs, of such modular facility. The Federal share shall not
exceed 75 per centum of such costs. All receipts for the sale of any
products produced during the operation of the facility shall be used to
offset the costs incurred in the operation and maintenance of the
facility. The provisions of subsections (d), (e), (k), (m), (p), (s),
(t), (u), (v), (w), and (x) of this section shall apply to any such
modular facility. The provisions of this section shall apply to any loan
guarantee for such modular facility.
(B) After successful demonstration of the modular facility, as
determined by the Secretary, the facility is eligible for financial
assistance under this section for purposes of expansion to a full sized
facility and the applicant may purchase the Federal interest in the
modular facility as represented by the Federal share thereof by means of
(i) a cash payment to the United States, or (ii) a share of the product
or sales resulting from such expanded operation, as determined by the
Secretary. If expansion of such facility is determined not to be
warranted by the Secretary, he may, at the option of the applicant,
dispose of the modular facility to the applicant at not less than fair
market value, as determined by the Secretary as of the date of the
disposal, or otherwise dispose of it, in accordance with applicable
provisions of law, and distribute the net proceeds thereof, after
expenses of such disposal, to the applicant in proportion to the
applicant's share of the costs of such facility.
(6) To the extent possible, loan guarantees shall be issued on the
basis of competitive bidding among guarantee applicants in a particular
technology area.
(c) Prerequisites
The Secretary, with due regard for the need for competition, shall
guarantee or make a commitment to guarantee any obligation under
subsection (b) or (y) of this section only if--
(1) the Secretary is satisfied that the financial assistance
applied for is necessary to encourage financial participation;
(2) the amount guaranteed to any borrower at any time does not
exceed--
(A) an amount equal to 75 per centum of the project cost of
the demonstration facility as estimated at the time the
guarantee is issued, which cost shall not include amounts
expended for facilities and equipment used in the extraction of
a mineral other than coal or shale, and in the case of coal only
to the extent that the Secretary determines that the coal is to
be converted to alternative fuel; and
(B) an amount equal to 60 per centum of that portion of the
actual total project cost of any demonstration facility which
exceeds the project cost of such facility as estimated at the
time the loan guarantee is issued;
(3) the Secretary has determined that there will be a continued
reasonable assurance of full repayment;
(4) the obligation is subject to the condition that it not be
subordinated to any other financing;
(5) the Secretary has determined, taking into consideration all
reasonably available forms of assistance under this section and
other Federal and State statutes, that the impacts resulting from
the proposed demonstration facility have been fully evaluated by the
borrower, the Secretary, and the Governor of the affected State, and
that effective steps have been taken or will be taken in a timely
manner to finance community planning and development costs resulting
from such facility under this section, under other provisions of
law, or by other means;
(6) the maximum maturity of the obligation does not exceed
twenty years, or 90 per centum of the projected useful economic life
of the physical assets of the demonstration facility covered by the
guarantee, whichever is less, as determined by the Secretary;
(7) the Secretary has determined that, in the case of any
demonstration or modular facility planned to be located on Indian
lands, the appropriate Indian tribe, with the approval of the
Secretary of the Interior, has given written consent to such
location;
(8) the obligation provides for the orderly and ratable
retirement of the obligation and includes sinking fund provisions,
installment payment provisions or other methods of payments and
reserves as may be reasonably required by the Secretary. Prior to
approving any repayment schedule the Secretary may consider the date
on which operating revenues are anticipated to be generated by the
project. To the maximum extent possible repayment or provision
therefor shall be required to be made in equal payments payable at
equal intervals; and
(9) the obligation provides that the Secretary shall, after a
period of not less than ten years from issuance of the obligation,
taking into consideration whether the Government's needs for
information to be derived from the project have been substantially
met and whether the project is capable of commercial operation,
determine the feasibility and advisability of terminating the
Federal participation in the project. In the event that such
determination is positive, the Secretary shall notify the borrower
and provide the borrower with not less than two nor more than three
years in which to find alternative financing. At the expiration of
the designated period of time, if the borrower has been unable to
secure alternative financing, the Secretary is authorized to collect
from the borrower an additional fee of 1 per centum per annum on the
remaining obligation to which the Federal guarantee applies.
(d) Repealed. Pub. L. 96-470, title I, Sec. 109, Oct. 19, 1980, 94 Stat.
2239
(e) Impact on communities, States, and Indian tribes; notice to State
and local officials; procedures applicable for further action by
Secretary subsequent to negative recommendation by State
Governor; criteria and determinations relating to approval by
Secretary of construction and operation plans; establishment,
membership, etc., of advisory panel
(1) As soon as the Secretary knows the geographic location of a
proposed facility for which a guarantee or a commitment to guarantee or
cooperative agreement is sought under this section, he shall inform the
Governor of the State, and officials of each political subdivision and
Indian tribe, as appropriate, in which the facility would be located or
which would be impacted by such facility. The Secretary shall not
guarantee or make a commitment to guarantee or enter into a cooperative
agreement under subsection (b) or subsection (y) of this section, if the
Governor of the State in which the proposed facility would be located
recommends that such action not be taken, unless the Secretary finds
that there is an overriding national interest in taking such action in
order to achieve the purpose of this section. If the Secretary decides
to guarantee or make a commitment to guarantee or enter into a
cooperative agreement despite a Governor's recommendation not to take
such action, the Secretary shall communicate, in writing, to the
Governor reasons for not concurring with such recommendation. This
Secretary's decision, pursuant to this subsection, shall be final unless
determined upon judicial review initiated by the Governor to be unlawful
by the reviewing court pursuant to section 706(2)(A) through (D) of
title 5. Such review shall take place in the United States court of
appeals for the circuit in which the State involved is located, upon
application made within ninety days from the date of such decision. The
Secretary shall, by regulation, establish procedures for review of, and
comment on, the proposed facility by States, local political
subdivisions, and Indian tribes which may be impacted by such facility,
and the general public.
(2) The Secretary shall review and approve the plans of the
applicant for the construction and operation of any demonstration and
related facilities constructed or to be constructed with assistance
under this section. Such plans and the actual construction shall include
such monitoring and other data-gathering costs associated with such
facility as are required by the comprehensive plan and program under
this section. The Secretary shall determine the estimated total cost of
such demonstration facility, including, but not limited to, construction
costs, startup costs, costs to political subdivisions and Indian tribe
by such facility, and cost of any water storage facilities needed in
connection with such demonstration facility, and determine who shall pay
such costs. Such determination shall not be binding upon the States,
political subdivisions, or Indian tribes.
(3) There is hereby established a panel to advise the Secretary on
matters relating to the program authorized by this section, including,
but not limited to, the impact of the demonstration facilities on
communities and States and Indian tribes, the environmental and health
and safety effects of such facilities, and the means, measures, and
planning for preventing or mitigating such impacts, and other matters
relating to the development of alternative fuels and other energy
sources under this section. The panel shall include such Governors or
their designees as shall be designated by the Chairman of the National
Governors Conference. Representatives of Indian tribes, industry,
environmental organizations, and the general public shall be appointed
by the Secretary. The Chairman of the panel shall be selected by the
Secretary. No person shall be appointed to the panel who has a financial
interest in any applicant applying for assistance under this section.
Members of the panel shall serve without compensation. The provisions of
section 5816(e) of this title shall apply to the panel.
(f) Termination, cancellation, revocation; conclusiveness;
contestability
Except in accordance with reasonable terms and conditions contained
in the written contract of guarantee, no guarantee issued or commitment
to guarantee made under this section shall be terminated, canceled, or
otherwise revoked. Such a guarantee or commitment shall be conclusive
evidence that the underlying obligation is in compliance with the
provisions of this section and that such obligation has been approved
and is legal as to principal, interest, and other terms. Subject to the
conditions of the guarantee or commitment to guarantee, such a guarantee
shall be incontestable in the hands of the holder of the guaranteed
obligation, except as to fraud or material misrepresentation on the part
of the holder.
(g) Default by borrower; procedures applicable to payment by Secretary
and rights of subrogation; notice to Attorney General by
Secretary for further action; protection for benefit of United
States of patents and technologies of defaulting project through
agreements, etc.
(1) If there is a default by the borrower, as defined in regulations
promulgated by the Secretary and in the guarantee contract, the holder
of the obligation shall have the right to demand payment of the unpaid
amount from the Secretary. Within such period as may be specified in the
guarantee or related agreements, the Secretary shall pay to the holder
of the obligation the unpaid interest on, and unpaid principal of, the
guaranteed obligation as to which the borrower has defaulted, unless the
Secretary finds that there was no default by the borrower in the payment
of interest or principal or that such default has been remedied. Nothing
in this section shall be construed to preclude any forebearance by the
holder of the obligation for the benefit of the borrower which may be
agreed upon by the parties to the guaranteed obligation and approved by
the Secretary.
(2) If the Secretary makes a payment under paragraph (1) of this
subsection, the Secretary shall be subrogated to the rights of the
recipient of such payment (and such subrogation shall be expressly set
forth in the guarantee or related agreements), including the authority
to complete, maintain, operate, lease, or otherwise dispose of any
property acquired pursuant to such guarantee or related agreements, or
any other property of the borrower (of a value equal to the amount of
such payment) to the extent that the guarantee applies to amounts in
excess of the estimated project cost under subsection (c)(2)(B) of this
section, without regard to the provisions of the Federal Property and
Administrative Services Act of 1949, as amended [40 U.S.C. 471 et seq.],
except section 207 of that Act (40 U.S.C. 488), or any other law, or to
permit the borrower, pursuant to an agreement with the Secretary, to
continue to pursue the purposes of the demonstration facility if the
Secretary determines that this is in the public interest. The rights of
the Secretary with respect to any property acquired pursuant to such
guarantee or related agreements, shall be superior to the rights of any
other person with respect to such property.
(3) In the event of a default on any guarantee under this section,
the Secretary shall notify the Attorney General, who shall take such
action as may be appropriate to recover the amounts of any payments made
under paragraph (1) including any payment of principal and interest
under subsection (h) of this section from such assets of the defaulting
borrower as are associated with the demonstration facility, or from any
other security included in the terms of the guarantee.
(4) For purposes of this section, patents, including any inventions
for which a waiver was made by the Secretary under section 5908 of this
title, and technology resulting from the demonstration facility, shall
be treated as project assets of such facility. The guarantee agreement
shall include such detailed terms and conditions as the Secretary deems
appropriate to protect the interests of the United States in the case of
default and to have available all the patents and technology necessary
for any person selected, including, but not limited to the Secretary, to
complete and operate the defaulting project. Furthermore, the guarantee
agreement shall contain a provision specifying that patents, technology,
and other proprietary rights which are necessary for the completion or
operation of the demonstration facility shall be available to the United
States and its designees on equitable terms, including due consideration
to the amount of the United States default payments. Inventions made or
conceived in the course of or under such guarantee, title to which is
vested in the United States under this chapter, shall not be treated as
project assets of such facility for disposal purposes under this
subsection, unless the Secretary determines in writing that it is in the
best interests of the United States to do so.
(h) Contracts to pay, and payment of principal and interest by Secretary
of unpaid balance of guaranteed obligations; prerequisites
With respect to any obligation guaranteed under this section, the
Secretary is authorized to enter into a contract to pay, and to pay,
holders of the obligations, for and on behalf of the borrowers, from the
fund established by this section, the principal and interest payments
which become due and payable on the unpaid balance of such obligation if
the Secretary finds that--
(1) the borrower is unable to meet such payments and is not in
default; it is in the public interest to permit the borrower to
continue to pursue the purposes of such demonstration facility; and
the probable net benefit to the Federal Government in paying such
principal and interest will be greater than that which would result
in the event of a default;
(2) the amount of such payment which the Secretary is authorized
to pay shall be no greater than the amount of principal and interest
which the borrower is obligated to pay under the loan agreement; and
(3) the borrower agrees to reimburse the Secretary for such
payment on terms and conditions, including interest, which are
satisfactory to the Secretary.
(i) Time for issuance of regulations; procedures applicable to issuance
of regulations and amendments
Regulations required by this section shall be issued within one
hundred and eighty days after February 25, 1978. All regulations under
this section and any amendments thereto shall be issued in accordance
with section 553 of title 5.
(j) Fees for guarantees of obligations; determination of amounts;
excepted guarantees
The Secretary shall charge and collect fees for guarantees of
obligations authorized by subsection (b)(1) of this section, in amounts
which (1) are sufficient in the judgment of the Secretary to cover the
applicable administrative costs, and (2) reflect the percentage of
projects costs guaranteed. In no event shall the fee be less than 1 per
centum per annum of the outstanding indebtedness covered by the
guarantee. Nothing in this subsection shall be construed to apply to
community planning and development assistance pursuant to subsection (k)
of this section.
(k) Community development and planning assistance guarantees; terms and
conditions; rules and regulations; concurrence of Secretary of
Treasury to terms and conditions; payment of taxes in event of
default by borrower; additional direct loans and grants;
redemption of debt obligations; funding requirements and
authorizations; facility title vesting and status upon default
(1) In accordance with such rules and regulations as the Secretary
in consultation with the Secretary of the Treasury shall prescribe, and
subject to such terms and conditions as he deems appropriate, the
Secretary is authorized, for the purpose of financing essential
community development and planning which directly result from, or are
necessitated by, one or more demonstration facilities assisted under
this section to--
(A) guarantee and make commitments to guarantee the payment of
interest on, and the principal balance of obligations for such
financing issued by eligible States, political subdivisions, or
Indian tribes,
(B) guarantee and make commitments to guarantee the payment of
taxes imposed on such demonstration facilities by eligible non-
Federal taxing authorities which taxes are earmarked by such
authorities to support the payment of interest and principal on
obligations for such financing, and
(C) require that the applicant for assistance for a
demonstration facility under this section advance sums to eligible
States, political subdivisions, and Indian tribes to pay for the
financing of such development and planning: Provided, That the
State, political subdivision, or Indian tribe agrees to provide tax
abatement credits over the life of the facilities for such payments
by such applicant.
(2) Prior to issuing any guarantee under this subsection, the
Secretary shall obtain the concurrence of the Secretary of the Treasury
with respect to the timing, interest rate, and substantial terms and
conditions of such guarantee. The Secretary of the Treasury shall insure
to the maximum extent feasible that the timing, interest rate, and
substantial terms and conditions of such guarantee will have the minimum
possible impact on the capital markets of the United States, taking into
account other Federal direct and indirect securities activities.
(3) In the event of any default by the borrower in the payment of
taxes guaranteed by the Secretary under this subsection, the Secretary
shall pay out of the fund established by this section such taxes at the
time or times they may fall due, and shall have by reason of such
payment a claim against the borrower for all sums paid plus interest.
(4) If after consultation with the State, political subdivision, or
Indian tribe, the Secretary finds that the financial assistance programs
of paragraph (1) of this subsection will not result in sufficient funds
to carry out the purposes of this subsection, then the Secretary may--
(A) make direct loans to the eligible States, political
subdivisions, or Indian tribes for such purposes: Provided, That
such loans shall be made on such reasonable terms and conditions as
the Secretary shall prescribe: Provided further, That the Secretary
may waive repayment of all or part of a loan made under this
paragraph, including interest, if the State or political subdivision
or Indian tribe involved demonstrates to the satisfaction of the
Secretary that due to a change in circumstances there will be net
adverse impacts resulting from such demonstration facility that
would probably cause such State, subdivision, or tribe to default on
the loan; or
(B) require that any community development and planning costs
which are associated with, or result from, such demonstration
facility and which are determined by the Secretary to be appropriate
for such inclusion shall be included in the total costs of the
demonstration facility.
(5) The Secretary is further authorized to make grants to States,
political subdivisions, or Indian tribes for studying and planning for
the potential economic, environmental, and social consequences of
demonstration facilities, and for establishing related management
expertise.
(6) At any time the Secretary may, with the concurrence of the
Secretary of the Treasury, redeem, in whole or in part, out of the fund
established by this section, the debt obligations guaranteed or the debt
obligations for which tax payments are guaranteed under this subsection.
(7) When one or more States, political subdivisions, or Indian
tribes would be eligible for assistance under this subsection, but for
the fact that construction and operation of the demonstration facilities
occurs outside its jurisdiction, the Secretary is authorized to provide,
to the greatest extent possible, arrangements for equitable sharing of
such assistance.
(8) Such amounts as may be necessary for direct loans and grants
pursuant to this subsection shall be available as provided in annual
authorization Acts.
(9) The Secretary, if appropriate, shall provide assistance in the
financing of up to 100 per centum of the costs of the required community
development and planning pursuant to this subsection.
(10) In carrying out the provisions of this subsection, the
Secretary shall provide that title to any facility receiving financial
assistance under this subsection shall vest in the applicable State,
political subdivision, or Indian tribe, as appropriate, and in the case
of default by the borrower on a loan guarantee such facility shall not
be considered a project asset for the purposes of subsection (g) of this
section.
(l) Annual reporting requirements; contents, etc.
(1) The Secretary is directed to submit a report to the Congress
within one hundred and eighty days after February 25, 1978, setting
forth his recommendations on the best opportunities to implement a
program of Federal financial assistance with the objective of
demonstrating production and conservation of energy. Such report shall
be updated and submitted to Congress at least annually and shall include
specific comments and recommendations by the Secretary of the Treasury
on the methods and procedures set forth in subparagraph (B)(viii) of
this subsection, including their adequacy, and changes necessary to
satisfy the objectives stated in this subsection. This report shall
include--
(A) a study of the purchase or commitment to purchase by the
Federal Government, for the use by the United States, of all or a
portion of the products of any alternative fuel facilities
constructed pursuant to this program as a direct or an alternate
form of Federal assistance, which assistance, if recommended, shall
be carried out pursuant to section 5906(a)(4) of this title; and
(B) a comprehensive plan and program to acquire information and
evaluate the environmental, economic, social, and technological
impacts of the demonstration program under this section. In
preparing such a comprehensive plan and program, the Secretary shall
consult with the Environmental Protection Agency, the Department of
Housing and Urban Development, the Department of the Interior, the
Department of Agriculture, and the Department of the Treasury, and
shall include therein, but not be limited to, the following:
(i) information about potential demonstration facilities
proposed in the program under this section;
(ii) any significant adverse impacts which may result from
any activity included in the program;
(iii) the extent to which it is feasible to commercialize
the technologies as they affect different regions of the Nation;
(iv) proposed regulations required to carry out the purposes
of this section;
(v) a list of Federal agencies, governmental entities, and
other persons that will be consulted or utilized to implement
the program;
(vi) the methods and procedures by which the information
gathered under the program will be analyzed and disseminated;
(vii) a plan for the study and monitoring of the health
effects of such facilities on workers and other persons,
including, but not limited to, any carcinogenic effect of
alternative fuels; and
(viii) the methods and procedures to insure that (I) the use
of the Federal assistance for demonstration facilities is kept
to the minimum level necessary for the information objectives of
this section, (II) the impact of loan guarantees on the capital
markets of the United States is minimized, taking into account
other Federal direct and indirect securities activities, and any
economic sectors which may be negatively impacted as a result of
the reduction of capital by the placement of guaranteed loans,
and (III) the granting of Federal loan guarantees under this
chapter does not impede movement toward improvement in the
climate for attracting private capital to develop alternative
fuels without continued direct Federal incentives.
(2) The Secretary shall annually submit a detailed report to the
Congress concerning--
(A) the actions taken or not taken by the Secretary under this
section during the preceding fiscal year, and including, but not be
limited to (i) a discussion of the status of each demonstration
facility and related facilities financed under this section,
including progress made in the development of such facilities, and
the expected or actual production from each such facility, including
byproduct production therefrom, and the distribution of such
products and byproducts, (ii) a detailed statement of the financial
conditions of each such demonstration facility, (iii) data
concerning the environmental, community, and health and safety
impacts of each such facility and the actions taken or planned to
prevent or mitigate such impacts, (iv) the administrative and other
costs incurred by the Secretary and other Federal agencies in
carrying out this program, and (v) such other data as may be helpful
in keeping Congress and the public fully and currently informed
about the program authorized by this section; and
(B) the activities of the fund referred to in subsection (n) of
this section during the preceding fiscal year, including a statement
of the amount and source of fees or other moneys, property, or
assets deposited into the funds, all payments made, the notes or
other obligations issued by the Secretary, and such other data as
may be appropriate.
(3) The annual reports required by this subsection shall be a part
of the annual report required by section 5914 of this title, except that
the matters required to be reported by this subsection shall be clearly
set out and identified in such annual reports. Such reports and the one-
hundred-and-eighty-day report required in paragraph (1) of this
subsection shall be transmitted to the Speaker of the House of
Representatives and the House Committee on Science, Space, and
Technology and to the President of the Senate and the Committee on
Energy and Natural Resources of the Senate.
(m) Congressional finalization of guarantee, etc., subsequent to report
to Congressional committees; scope of authority
Prior to issuing any guarantee or commitment to guarantee or
cooperative agreement pursuant to subsection (b) or subsection (y) of
this section the Secretary shall submit to the Committee on Science,
Space, and Technology of the House of Representatives and the Committee
on Energy and Natural Resources of the Senate a full and complete report
on the proposed demonstration facility and such guarantee, agreement, or
contract. Such guarantee, commitment to guarantee, cooperative
agreement, or contract shall not be finalized under the authority
granted by this section prior to the expiration of ninety calendar days
(not including any day on which either House of Congress is not in
session because of an adjournment of more than three calendar days to a
day certain) from the date on which such report is received by such
committees: Provided, That, where the cost of a demonstration facility
to be assisted with a guarantee or cooperative agreement pursuant to
subsection (b) or subsection (y) of this section exceeds $50,000,000
such guarantee or commitment to guarantee or cooperative agreement shall
not be finalized unless (1) the making of such guarantee or commitment
or agreement is specifically authorized by legislation hereafter enacted
by the Congress or (2) both Houses pass a resolution stating in
substance that the Congress favors the making of such guarantee or
commitment or agreement.
(n) Revolving fund; creation; funding; payments and transfers to general
fund of Treasury; issuance, redemption, etc., of notes or
obligations; applicability to direct loans or planning grants
(1) There is hereby created within the Treasury a separate fund
(hereafter in this section called the ``fund'') which shall be available
to the Secretary without fiscal year limitation as a revolving fund for
the purpose of carrying out the program authorized by subsection (b)(1)
of this section and subsections (g), (h), (k), and (y) of this section.
(2) There are hereby authorized to be appropriated to the fund for
administrative expenses from time to time such amounts as may be
necessary to carry out the purposes of the applicable provisions of this
section, including, but not limited to, the payments of interest and
principal and the payment of interest differentials and redemption of
debt. All amounts received by the Secretary as interest payments or
repayments of principal on loans which are guaranteed under this
section, fees, and any other moneys, property, or assets derived by him
from operations under this section shall be deposited in the fund.
(3) All payments on obligations, appropriate expenses (including
reimbursements to other Government accounts), and repayments pursuant to
operations of the Secretary under this section shall be paid from the
fund subject to appropriations. If at any time the Secretary determines
that moneys in the fund exceed the present and reasonably foreseeable
future requirements of the fund, such excess shall be transferred to the
general fund of the Treasury.
(4) If at any time the moneys available in the fund are insufficient
to enable the Secretary to discharge his responsibilities as authorized
by subsections (b)(1), (g), (h), and (y) of this section, the Secretary
shall issue to the Secretary of the Treasury notes or other obligations
in such forms and denominations, bearing such maturities, and subject to
such terms and conditions as may be prescribed by the Secretary of the
Treasury. Redemption of such notes or obligations shall be made by the
Secretary from appropriations or other moneys available under paragraph
(2) of this subsection for loan guarantees authorized by subsection
(b)(1) of this section and subsections (g), (h), (k), and (y) of this
section. Such notes or other obligations shall bear interest at a rate
determined by the Secretary of the Treasury, which shall be not less
than a rate determined by taking into consideration the average market
yield on outstanding marketable obligations of the United States of
comparable maturities during the month preceding the issuance of the
notes or other obligations. The Secretary of the Treasury may at any
time sell any of the notes or other obligations acquired by him under
this subsection.
(5) The provisions of this subsection do not apply to direct loans
or planning grants made under subsection (k) of this section.
(o) Definitions
For the purposes of this section, the term--
(1) ``State'' means any State of the United States, the District
of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin
Islands, American Samoa, any territory or possession of the United
States,
(2) ``United States'' means the several States, the Commonwealth
of Puerto Rico, the Virgin Islands, Guam, and American Samoa,
(3) ``borrower'' or ``applicant'' shall include any individual,
firm, corporation, company, partnership, association, society,
trust, joint venture, joint stock company, or other non-Federal
entity, and
(4) ``biomass'' shall include, but is not limited to, animal and
timber waste, municipal and industrial waste, sewage, sludge, and
oceanic and terrestrial crops.
(p) Citizenship or nationality requirements for applicants; waiver
(1) An applicant seeking a guarantee or cooperative agreement under
subsection (b) or subsection (y) of this section must be a citizen or
national of the United States. A corporation, partnership, firm, or
association shall not be deemed to be a citizen or national of the
United States unless the Secretary determines that it satisfactorily
meets all the requirements of section 802 of title 46, Appendix, for
determining such citizenship, except that the provisions in subsection
(a) of such section 802 concerning (A) the citizenship of officers or
directors of a corporation, and (B) the interest required to be owned in
the case of a corporation, association, or partnership operating a
vessel in the coastwise trade, shall not be applicable.
(2) The Secretary, in consultation with the Secretary of State, may
waive such requirements in the case of a corporation, partnership, firm,
or association, controlling interest in which is owned by citizens of
countries which are participants in the International Energy Agreement.
(q) Transfer of part of program to other agency or authority
No part of the program authorized by this section shall be
transferred to any other agency or authority, except pursuant to Act of
Congress enacted after February 25, 1978.
(r) Statutory provisions applicable to inventions
Inventions made or conceived in the course of or under a guarantee
authorized by this section shall be subject to the title and waiver
requirements and conditions of section 5908 of this title.
(s) Compliance by persons receiving financial assistance with Federal
and State environmental, etc., laws and regulations, and
licensing requirements
Nothing in this section shall be construed as affecting the
obligations of any person receiving financial assistance pursuant to
this section to comply with Federal and State environmental, land use,
water, and health and safety laws and regulations or to obtain
applicable Federal and State permits, licenses, and certificates.
(t) Availability of information; procedures applicable; scope of
disclosure; persons to whom disclosure may be made; ``person''
defined
The information maintained by the Secretary under this section shall
be made available to the public subject to the provision of section 552
of title 5 and section 1905 of title 18 and to other Government agencies
in a manner that will facilitate its dissemination: Provided, That upon
a showing satisfactory to the Secretary by any person that any
information, or portion thereof obtained under this section by the
Secretary directly or indirectly from such person would, if made public,
divulge (1) trade secrets or (2) other proprietary information of such
person, the Secretary shall not disclose such information and disclosure
thereof shall be punishable under section 1905 of title 18: Provided
further, That the Secretary shall, upon request, provide such
information to (A) any delegate of the Secretary for the purpose of
carrying out this chapter, and (B) the Attorney General, the Secretary
of Agriculture, the Secretary of the Interior, the Federal Trade
Commission, the Environmental Protection Agency, the General Accounting
Office, other Federal agencies, or heads of other Federal agencies, when
necessary to carry out their duties and responsibilities under this and
other statutes, but such agencies and agency heads shall not release
such information to the public. This section is not authority to
withhold information from Congress, or from any committee of Congress
upon request of the Chairman. For the purposes of this subsection, the
term ``person'' shall include the borrower.
(u) Scope of exercise of statutory authorities
Notwithstanding any other provision of this section, the authority
provided in this section to make guarantees or commitments to guarantee
or enter into cooperative agreements under subsection (b)(1) or
subsection (y) of this section, to make guarantees or commitments to
guarantees, or to make loans or grants, under subsection (k) of this
section, to make contracts under subsection (h) of this section, and to
use fees and receipts collected under subsections (b), (j), and (y) of
this section, and the authorities provided under subsection (n) of this
section shall be effective only to the extent provided, without fiscal
year limitation, in appropriation Acts enacted after February 25, 1978.
(v) Nondiscrimination requirements; scope of exemption from requirements
for Indian tribes
No person in the United States shall on the grounds of race, color,
religion, national origin, or sex, be excluded from participation in, be
denied benefits of, or be subjected to discrimination under any program
or activity funded in whole or in part with assistance made available
under this section: Provided, That Indian tribes are exempt from the
operation of this subsection: Provided further, That such exemption
shall be limited to the planning and provision of public facilities
which are located on reservations and which are provided for members of
the affected Indian tribes as the primary beneficiaries.
(w) Participation by small business concerns in program
In carrying out his functions under this section, the Secretary
shall provide a realistic and adequate opportunity for small business
concerns to participate in the program to the optimum extent feasible
consistent with the size and nature of each project.
(x) Recordkeeping requirements; audit by Comptroller General; labor
standards at construction facilities
(1)(A) Recipients of financial assistance under this section shall
keep such records and other pertinent documents, as the Secretary shall
prescribe by regulation, including, but not limited to, records which
fully disclose the disposition of the proceeds of such assistance, the
cost of any facility, the total cost of the provision of public
facilities for which assistance was used and such other records as the
Secretary may require to facilitate an effective audit. The Secretary
and the Comptroller General of the United States, or their duly
authorized representative shall have access, for the purpose of audit,
to such records and other pertinent documents.
(B) Within 6 months after February 25, 1978, and at 6-month
intervals thereafter, the Comptroller General of the United States shall
make an audit of recipients of financial assistance under this section.
The Comptroller General may prescribe such regulations as he deems
necessary to carry out this subparagraph.
(2) All laborers and mechanics employed by contractors or
subcontractors in the performance of construction work financed in whole
or in part with assistance under this section shall be paid wages at
rates not less than those prevailing on similar construction in the
locality as determined by the Secretary of Labor in accordance with the
Davis-Bacon Act, as amended (40 U.S.C. 276a--276a-5). The Secretary of
Labor shall have, with respect to such labor standards, the authority
and functions set forth in Reorganization Plan Numbered 14 of 1950 (15
F.R. 3176; 64 Stat. 1267) and section 276c of title 40.
(y) Issuance of obligations for synthetic fuel conversion facilities and
municipal organic waste energy generation facilities; rules and
regulations; statutory provisions inapplicable; limitation on
outstanding indebtedness; additional procedural requirements and
terms and conditions applicable
(1) The Secretary is authorized in accordance with such rules and
regulations as he shall prescribe after consultation with the Secretary
of the Treasury, to guarantee and to make commitments to guarantee the
payment of interest on, and the principal balance of, bonds, debentures,
notes, and other obligations issued by or on behalf of any borrower for
the purpose of (A) financing the construction and startup costs of
demonstration facilities for the conversion of municipal or industrial
waste, sewage sludge, or other municipal organic wastes into synthetic
fuels, and (B) financing the construction and startup costs of
demonstration facilities to generate desirable forms of energy
(including synthetic fuels) from municipal or industrial waste, sewage
sludge, or other municipal organic waste. With respect to a guarantee or
a commitment to guarantee authorized by this subsection; the following
subsections of this section shall not apply: (b)(1), (b)(5), (c)(2),
(c)(5), (c)(6), (c)(7), (c)(8), (c)(9), (e)(3), (j), (k), and (q).
(2) In the case where the Secretary seeks to guarantee or to make
commitments to guarantee as provided by this subsection he is authorized
to incur an outstanding indebtedness which at no time shall exceed
$300,000,000.
(3) The Secretary shall apply the following provisions thereto:
(A) With respect to any demonstration facility for the
conversion of solid waste (as the term is defined in the Resource
Conservation and Recovery Act (42 U.S.C. 6903)), the Secretary,
prior to issuing any guarantee under this section, must be in
receipt of a certification from the Secretary of the Environmental
Protection Agency and any appropriate State or areawide solid waste
management planning agency that the proposed application for a
guarantee is consistent with any applicable suggested guidelines
published pursuant to section 1008(a) of the Resource Conservation
and Recovery Act [42 U.S.C. 6907(a)], and any applicable State or
regional solid waste management plan.
(B) The amount guaranteed shall not exceed 75 per centum of the
total cost of the commercial demonstration facility, as determined
by the Secretary: Provided, That the amount guaranteed may not
exceed 90 per centum of the total cost of the commercial
demonstration facility during the period of construction and
startup.
(C) The maximum maturity of the obligation shall not exceed
thirty years, or 90 per centum of the projected useful economic life
of the physical assets of the commercial demonstration facility
covered by the guarantee, whichever is less, as determined by the
Secretary.
(D) The Secretary shall charge and collect fees for guarantees
of obligations in amounts sufficient in the judgment of the
Secretary to cover the applicable administrative costs and probable
losses on guaranteed obligations, but in any event not to exceed 1
per centum per annum of the outstanding indebtedness covered by the
guarantee.
(E) No part of the program authorized by this section shall be
transferred to any other agency or authority, except pursuant to Act
of Congress enacted after February 25, 1978: Provided, That project
agreements entered into pursuant to this section for any commercial
demonstration facility for the conversion or bioconversion of solid
waste (as that term is defined in the Resource Conservation and
Recovery Act [42 U.S.C. 6901 et seq.]) shall be administered in
accordance with the May 7, 1976, Interagency Agreement between the
Environmental Protection Agency and the Energy Research and
Development Administration on the Development of Energy From Solid
Wastes, and provided specifically that in accordance with this
agreement (i) for those energy-related projects of mutual interest,
planning will be conducted jointly by the Environmental Protection
Agency and the Secretary, following which project responsibility
will be assigned to one agency; (ii) energy-related projects for
recovery of synthetic fuels or other forms of energy from solid
waste shall be the responsibility of the Secretary; and (iii) the
Environmental Protection Agency shall retain responsibility for the
environmental, economic, and institutional aspects of solid waste
projects and for assurance that such projects are consistent with
any applicable suggested guidelines pursuant to section 1008 of the
Resource Conservation and Recovery Act of 1976, as amended [42
U.S.C. 6907], and any applicable State or regional solid waste
management plan.
(F) With respect to any obligation which is issued after
February 25, 1978, by, or in behalf of, any State, political
subdivision, or Indian tribe and which is either guaranteed under,
or supported by taxes levied by said issuer which are guaranteed
under, this section, the interest paid on such obligation and
received by the purchaser thereof (or the purchaser's successor in
interest) shall be included in gross income for the purpose of
chapter 1 of title 26: Provided, That the Secretary shall pay to
such issuer out of the fund established by this section such portion
of the interest on such obligations, as determined by the Secretary
of the Treasury to be appropriate after taking into account current
market yields (i) on obligations of said issuer, if any, and (ii) on
other obligations with similar terms and conditions the interest on
which is not so included in gross income for purposes of chapter 1
of title 26, and in accordance with, such terms and conditions as
the Secretary of the Treasury shall require.
(Pub. L. 93-577, Sec. 19, as added Pub. L. 95-238, title II,
Sec. 207(b), Feb. 25, 1978, 92 Stat. 61; amended Pub. L. 96-470, title
I, Sec. 109, Oct. 19, 1980, 94 Stat. 2239; Pub. L. 99-514, Sec. 2, Oct.
22, 1986, 100 Stat. 2095; Pub. L. 103-437, Sec. 15(c)(9), Nov. 2, 1994,
108 Stat. 4592.)
References in Text
The Federal Property and Administrative Services Act of 1949, as
amended, referred to in subsec. (g)(2), is act June 30, 1949, ch. 288,
63 Stat. 377, as amended. Provisions of that act relating to disposal of
government property are classified to chapter 10 (Sec. 471 et seq.) of
Title 40, Public Buildings, Property, and Works. For complete
classification of this Act to the Code, see Short Title note set out
under section 471 of Title 40 and Tables.
The Davis-Bacon Act, as amended, referred to in subsec. (x)(2), is
act Mar. 3, 1931, ch. 411, 46 Stat. 1494, as amended, which is
classified generally to sections 276a to 276a-5 of Title 40. For
complete classification of this Act to the Code, see Short Title note
set out under section 276a of Title 40 and Tables.
Reorganization Plan Numbered 14 of 1950, referred to in subsec.
(x)(2), is set out in the Appendix to Title 5, Government Organization
and Employees.
The Resource Conservation and Recovery Act of 1976, referred to in
subsec. (y)(3)(A), (E), is Pub. L. 94-580, Oct. 21, 1976, 90 Stat. 2796,
as amended, which is classified generally to chapter 82 (Sec. 6901 et
seq.) of this title. For complete classification of this Act to the
Code, see Short Title of 1976 Amendment note set out under section 6901
of this title and Tables.
Codification
The words ``the Federal Energy Administration,'' after ``the
Environmental Protection Agency,'' in subsec. (l)(1)(B) and after ``the
Federal Trade Commission,'' in subsec. (t)(B), and the words ``the
Federal Power Commission,'' after ``the Environmental Protection
Agency,'' in subsec. (t)(B) omitted from text in view of termination of
Federal Energy Administration and Federal Power Commission and transfer
of their functions (with certain exceptions) to Secretary of Energy
pursuant to sections 301, 703, and 707 of Pub. L. 95-91, Aug. 4, 1977,
91 Stat. 577, 606, 607, which are classified to sections 7151, 7293, and
7297 of this title. This transfer would result in subsecs. (l)(1)(B) and
(t)(B) being redundant in that it would require Secretary of Energy to
consult with or provide information to himself. See Transfer of
Functions note below.
Another section 19 of the Federal Nonnuclear Energy Research and
Development Act of 1974 was enacted by Pub. L. 95-39, title IV,
Sec. 401, June 3, 1977, 91 Stat. 190, and is classified to section 5918
of this title.
Amendments
1994--Subsecs. (l)(3), (m). Pub. L. 103-437 substituted ``Committee
on Science, Space, and Technology'' for ``Committee on Science and
Technology''.
1986--Subsec. (y)(3)(F). Pub. L. 99-514 substituted ``Internal
Revenue Code of 1986'' for ``Internal Revenue Code of 1954'', which for
purposes of codification was translated as ``title 26'' thus requiring
no change in text.
1980--Subsec. (d). Pub. L. 96-470 struck out subsec. (d) which
provided that prior to submitting a report to Congress pursuant to
subsec. (m) of this section on each guarantee and cooperative agreement,
the Administrator request from the Attorney General and the Chairman of
the Federal Trade Commission written views and recommendations
concerning the impact of such guarantee, commitment, or agreement on
competition and concentration in the production of energy and give due
consideration to the views and recommendations received, except that if
either official, within 60 days after receipt of such request or at any
time prior to the Administrator submitting such report to Congress,
recommends against making the proposed guarantee, commitment, or
agreement, the proposed guarantee, commitment, or agreement be referred
to the President, and the Administrator not do so unless the President
determines in writing that the guarantee, commitment, or agreement is in
the national interest.
Change of Name
Committee on Science, Space, and Technology of House of
Representatives changed to Committee on Science of House of
Representatives by House Resolution No. 6, One Hundred Fourth Congress,
Jan. 4, 1995.
Transfer of Functions
``Secretary'' and ``Secretary's'', meaning Secretary of Energy,
substituted for ``Administrator'' and ``Administrator's'', respectively,
meaning Administrator of Energy Research and Development Administration,
in text and for ``Energy Research and Development Administration'' in
subsec. (y)(3)(E)(i), (ii) pursuant to sections 301(a), 703, and 707 of
Pub. L. 95-91, Aug. 4, 1977, 91 Stat. 577, 606, 607, which are
classified to sections 7151(a), 7293, and 7297 of this title and which
terminated Energy Research and Development Administration and
transferred its functions and functions of Administrator thereof (with
certain exceptions) to Secretary of Energy.
Nonapplicability of Title II of Pub. L. 95-238 to Any Authorization or
Appropriation for Military Application of Nuclear Energy, Etc.;
Definitions
Nonapplicability of provisions of title II of Pub. L. 95-238 with
respect to any authorization or appropriation for any military
application of nuclear energy, etc., see section 209 of Pub. L. 95-238,
set out as a note under section 5821 of this title.
Section Referred to in Other Sections
This section is referred to in sections 5906, 8837 of this title.
|
