1.This Act may be cited as the
Clean Energy Financing Act of
2011
.
2.The purpose of this Act is to promote the
domestic development and deployment of clean energy technologies required for
the 21st century through the improvement of existing programs and the
establishment of a Clean Energy Deployment Administration that will provide for
an attractive investment environment through partnership with and support of
the private capital market in order to promote access to affordable financing
for accelerated and widespread deployment of—
(1)clean energy
technologies, especially breakthrough technologies;
(2)advanced or
enabling energy infrastructure technologies;
(3)energy efficiency
and clean distributed energy technologies in residential, commercial, and
industrial applications, including end-use efficiency in buildings; and
(4)manufacturing
technologies for any of the technologies or applications described in this
section.
3.In this Act:
(1)The
term Administration means the Clean Energy Deployment
Administration established by section 7.
(2)The
term Administrator means the Administrator of the
Administration.
(3)The term Advisory Council means the Energy
Technology Advisory Council of the Administration.
(4)The term breakthrough technology means a
clean energy technology or clean distributed energy technology that—
(A)presents a
significant opportunity to advance the goals developed under section 6, as
assessed under the methodology established by the Advisory Council; but
(B)(i)has generally not been
considered a commercially ready technology as a result of high perceived
technology risk or other similar factors; or
(ii)faces market barriers to
widespread adoption in the residential or commercial markets, including a lack
of financing availability to overcome upfront capital costs despite the
opportunity for reasonable payback timeframes.
(5)The term clean distributed energy
means any electric generation or thermal energy production technology
that—
(A)produces less
than 10 megawatts or 10 megawatts thermal equivalent;
(B)meets the
criteria for clean energy technology described in paragraph (6); and
(C)is located at a
retail customer site and provides energy directly, at least in part, to a
retail customer.
(6)The term clean energy technology means a
technology or service related to the production, use, transmission, storage,
control, or conservation of energy that will—
(A)reduce the need
for additional energy supplies by using existing energy supplies with greater
efficiency or by transmitting, distributing, storing, or transporting energy
with greater effectiveness in or through the infrastructure of the United
States;
(B)diversify the
sources of energy supply of the United States to strengthen energy security and
to increase supplies with a favorable balance of environmental effects if the
entire technology system is considered; or
(C)contribute to a
stabilization of atmospheric greenhouse gas concentrations through reduction,
avoidance, or sequestration of energy-related emissions.
(7)The
term cost has the meaning given the term in section 502 of the
Federal Credit Reform Act of 1990
(2 U.S.C. 661a).
(8)The term direct loan has the meaning given the
term in section 502 of the Federal Credit Reform Act of 1990 (2 U.S.C.
661a).
(9)The
term Fund means the Clean Energy Investment Fund established by
section 4(a).
(10)The term loan guarantee has the meaning
given the term in section 502 of the Federal Credit Reform Act of 1990 (2
U.S.C. 661a).
(11)The term National Laboratory has the
meaning given the term in section 2 of the Energy Policy Act of 2005 (42 U.S.C.
15801).
(12)The
term Secretary means the Secretary of Energy.
(13)The
term security has the meaning given the term in section 2 of the
Securities Act of 1933 (15 U.S.C. 77b).
(14)The
term State means—
(A)a State;
(B)the District of
Columbia;
(C)the Commonwealth
of Puerto Rico; and
(D)any other
territory or possession of the United States.
(15)The term technology risk means the risks during
construction or operation associated with the design, development, and
deployment of clean energy technologies (including the cost, schedule,
performance, reliability and maintenance, and accounting for the perceived
risk), from the perspective of commercial lenders, that may be increased as a
result of the absence of adequate historical construction, operating, or
performance data from commercial applications of the technology.
4.Clean Energy
Investment Fund
(a)There
is established in the Treasury of the United States a fund, to be known as the
Clean Energy Investment Fund
, consisting of—
(1)such amounts as
have been appropriated to carry out title XVII of the Energy Policy Act of 2005
(42 U.S.C. 16511 et seq.);
(2)such amounts as
are deposited in the Fund under this Act and amendments made by this Act;
and
(3)such sums as may
be appropriated to supplement the Fund.
(b)
(1)Amounts in the Fund shall be available to the Secretary
or Administrator for obligation without fiscal year limitation, to remain
available until expended.
(2)
(A)Fees
collected for expenses shall be available without limitation to cover
applicable expenses.
(B)To
the extent that expenses are not reimbursed through fees, an amount not to
exceed 1.5 percent of the amounts in the Fund as of the beginning of each
fiscal year shall be available to pay the expenses for the fiscal year
necessary to carry out this Act or title XVII of the Energy Policy Act of 2005
(42 U.S.C. 16511 et seq.).
(c)
(1)The amounts required to be transferred to the Fund under
this section shall be transferred at least monthly from the general fund of the
Treasury to the Fund on the basis of estimates made by the Secretary of the
Treasury.
(2)Cash flows associated with costs of the Fund described in
section 502(5)(B) of the Federal Credit Reform Act of 1990 (2 U.S.C.
661a(5)(B)) shall be transferred to appropriate credit accounts.
(3)Proper
adjustment shall be made in amounts subsequently transferred to the extent
prior estimates were in excess of or less than the amounts required to be
transferred.
5.Revisions to
loan guarantee program authority
(a)Definition of
commercial technologySection 1701(1) of the Energy Policy Act of
2005 (42 U.S.C. 16511(1)) is amended by striking subparagraph (B) and inserting
the following:
(B)The
term commercial technology does not include a technology if the
sole use of the technology is in connection with—
(i)a
demonstration project; or
(ii)a project for
which the Secretary approved a loan
guarantee.
.
(b)Specific
appropriation or contributionSection 1702 of the Energy Policy
Act of 2005 (42 U.S.C. 16512) is amended by striking subsection (b) and
inserting the following:
(b)Specific
appropriation or contribution
(1)No guarantee shall be made unless sufficient amounts to
account for the cost are available—
(A)in unobligated
balances within the Clean Energy Investment Fund established by section 4(a) of
the Clean Energy Financing Act of
2011;
(B)as a payment from
the borrower and the payment is deposited in the Clean Energy Investment Fund;
or
(C)in any
combination of balances and payments described in subparagraphs (A) and (B),
respectively.
(2)The
source of payments received from a borrower under paragraph (1)(B) shall not be
a loan or other debt obligation that is made or guaranteed by the Federal
Government.
.
(c)Section
1702(h) of the Energy Policy Act of 2005 (43 U.S.C. 16512(h)) is amended by
adding at the end the following:
(3)The
Secretary may adjust the amount or manner of collection of fees under this
title as the Secretary determines is necessary to promote, to the maximum
extent practicable, eligible projects under this title.
(4)The Secretary may waive any otherwise applicable
requirement (including any requirement described in part 609 of title 10, Code
of Federal Regulations (or successor regulations)) to provide a third-party
credit report if—
(A)the Secretary
determines that a third-party credit rating of the applicant or project is not
relevant to the determination of the credit risk of a project;
(B)the project costs
are not projected to exceed $100,000,000; and
(C)the applicant
agrees to accept the credit rating assigned to the applicant by the
Secretary.
.
(d)Section
1702 of the Energy Policy Act of 2005 (42 U.S.C. 16512) is amended by adding at
the end the following:
(k)To the maximum extent practicable and consistent with
sound business practices, the Secretary shall seek to consolidate internal and
interagency reviews of projects under this title such that final decisions on
applications can generally be issued not later than 180 days after the date of
submission of a completed application.
(l)The Secretary may—
(1)retain agents and
legal and other professional advisors in connection with guarantees and related
activities authorized under this title;
(2)require
applicants for and recipients of loan guarantees to pay all fees and expenses
of the agents and advisors; and
(3)notwithstanding
any other provision of law, select such advisors in such manner and using such
procedures as the Secretary determines to be appropriate to protect the
interests of the United States and achieve the purposes of this title.
(m)Notwithstanding any other provision of law (including
section 609.12 of title 10, Code of Federal Regulations (or successor
regulations)), an eligible project may be located on 2 or more noncontiguous
sites in the United
States.
.
(e)Section 1702 of the Energy Policy Act of 2005 (42
U.S.C. 16512) (as amended by subsection (d)) is amended at the end by adding
the following:
(n)If the borrower is providing a payment for the cost of
a proposed loan guarantee and the guarantee amount is greater than
$1,000,000,000, the Secretary shall determine the cost of the obligation on the
basis of a project-specific financial risk assessment that—
(1)includes a
written explanation of any differences between—
(A)the estimated
probability of default, as determined by the Secretary; and
(B)the estimated
probability of default contained in any credit assessment performed by an
independent rating agency;
(2)includes a
written explanation of any differences between—
(A)the estimated
value of the recovery in the event of default, as determined by the Secretary;
and
(B)the estimated
value of the recovery in the event of default contained in any recovery plan
submitted by the borrower; and
(3)is made available
to the borrower for review and comment prior to a final
determination.
.
(f)Section 1703(b)(4) of the Energy Policy Act of 2005 (42
U.S.C. 16513(b)(4)) is amended by inserting (including nuclear power
parts, services, and fuel suppliers, and small modular reactors, if additional
loan volume authority is provided for a project described in this parenthetical
in an appropriation Act enacted after July 1, 2011)
after energy
facilities
.
(g)Section 1705(c) of the Energy Policy Act of 2005 (42 U.S.C.
16516(c)) is amended by striking support under this section
and
inserting support under this title
.
6.Energy
technology deployment goals
(a)Not
later than 1 year after the date of enactment of this Act, the Secretary, after
consultation with the Advisory Council, shall develop and publish for review
and comment in the Federal Register near-, medium-, and long-term goals
(including numerical performance targets at appropriate intervals to measure
progress toward those goals) for the deployment of clean energy technologies
through the credit support programs established by this Act (including an
amendment made by this Act) to promote—
(1)sufficient
electric generating capacity using clean energy technologies to meet the energy
needs of the United States;
(2)clean energy
technologies in vehicles and fuels that will substantially reduce the reliance
of the United States on foreign sources of energy and insulate consumers from
the volatility of world energy markets;
(3)a domestic
commercialization and manufacturing capacity that will establish the United
States as a world leader in clean energy technologies across multiple sectors,
including the production of advanced materials used in clean energy
technologies;
(4)installation of
sufficient infrastructure to allow for the cost-effective deployment of clean
energy technologies appropriate to each region of the United States;
(5)the
transformation of the building stock of the United States to zero net energy
consumption, including through energy efficiency and the use of clean
distributed energy;
(6)the recovery,
use, and prevention of waste energy;
(7)domestic
manufacturing of clean energy technologies on a scale that is sufficient to
achieve price parity with conventional energy sources;
(8)domestic
production of commodities, industrial bio-products, and materials (such as
steel, chemicals, polymers, biopolymers, and cement) using clean energy
technologies so that the United States will become a world leader in
environmentally sustainable production of the commodities and materials;
(9)a robust,
efficient, and interactive electricity transmission grid that will allow for
the incorporation of clean energy technologies, distributed generation, clean
distributed energy, smart grid functions, and demand-response in each regional
electric grid;
(10)to overcome
market barriers (including lack of financing as the result of upfront cost
despite the possibility of reasonable payback timeframes) and promote energy
efficiency and clean distributed energy technologies, ensure sufficient
availability of financial products to allow owners and users of residential,
retail, commercial, multifamily residence, municipal, institution of higher
education, school, hospital, and industrial buildings to make energy efficiency
(including building retrofits) and distributed generation and clean distributed
energy technology investments with reasonable payback periods, including
enabling municipalities, cooperatives, tribes, and other tax-exempt entities to
deploy community-owned energy generation and energy efficiency projects;
and
(11)such other goals
as the Secretary, in consultation with the Advisory Council, determines to be
consistent with the purposes of this Act.
(b)The
Secretary shall revise the goals established under subsection (a), from time to
time as appropriate, to account for advances in technology and changes in
energy policy.
7.Clean Energy
Deployment Administration
(a)
(1)There is established in the Department of Energy an
administration to be known as the Clean Energy Deployment Administration, under
the direction of the Administrator and the Board of Directors.
(2)
(A)The Administration (including officers, employees, and
agents of the Administration) shall not be responsible to, or subject to the
authority, direction, or control of, any other officer, employee, or agent of
the Department of Energy other than the Secretary, acting through the
Administrator.
(B)Exemption from
reorganizationThe Administration shall be exempt from the
reorganization authority provided under section 643 of the Department of Energy
Organization Act (42 U.S.C. 7253).
(C)Section 12 of the Inspector General Act of 1978 (5 U.S.C.
App.) is amended—
(i)in
paragraph (1), by inserting the Administrator of the Clean Energy
Deployment Administration;
after Export-Import Bank;
;
and
(ii)in
paragraph (2), by inserting the Clean Energy Deployment
Administration,
after Export-Import Bank,
.
(3)
(A)The Administration shall—
(i)maintain the
principal office of the Administration in the District of Columbia; and
(ii)for purposes of
venue in civil actions, be considered to be a resident of the District of
Columbia.
(B)The Administration may establish other offices in such
other places as the Administration considers necessary or appropriate for the
conduct of the business of the Administration.
(b)
(1)The Administrator shall be—
(A)appointed by the
President, by and with the advice and consent of the Senate, for a 5-year term;
and
(B)compensated at
the annual rate of basic pay prescribed for level II of the Executive Schedule
under section 5313 of title 5, United States Code.
(2)The
Administrator shall—
(A)serve as the
Chief Executive Officer of the Administration and Chairman of the Board;
(B)ensure
that—
(i)the
Administration operates in a safe and sound manner, including maintenance of
adequate capital and internal controls (consistent with section 404 of the
Sarbanes-Oxley Act of 2002 (15 U.S.C. 7262));
(ii)the operations
and activities of the Administration foster liquid, efficient, competitive, and
resilient energy and energy efficiency finance markets;
(iii)the
Administration carries out the purposes of this Act only through activities
that are authorized under and consistent with this Act;
(iv)the activities
of the Administration and the manner in which the Administration is operated
are consistent with the public interest; and
(v)no
project exceeds the net greenhouse gas emissions (measured on a ton per unit of
output basis, expressed in, carbon dioxide equivalency terms) resulting from
the operation of existing and commercially-deployed technologies or facilities
that are producing comparable commodities or products within the United States
as of the date of enactment of this Act;
(C)develop policies
and procedures for the Administration that will—
(i)promote a
portfolio of investments that will maximize the value of investments to
effectively promote clean energy technologies;
(ii)promote
transparency and openness in Administration operations;
(iii)afford the
Administration with sufficient flexibility to meet the purposes of this
Act;
(iv)provide for the
efficient processing of applications;
(v)promote,
consistent with the purposes of this Act, the participation of private
financial institutions and other sources of private capital, on commercially
reasonable terms, if and to the extent the capital is available;
(vi)promote the
availability of financial products to small business through working with
entities that have appropriate expertise extending credit or other relevant
financial services to small companies developing clean energy technologies;
and
(vii)promote the
availability of financial products to municipalities, cooperatives, tribes, and
other tax-exempt entities to develop community-owned clean energy generation
and energy efficiency projects;
(D)develop, in
consultation with the Advisory Council, and publish for comment in the Federal
Register a methodology for the relative assessment of clean energy technologies
that will allow for the evaluation of projects based on progress likely to be
achieved per-dollar invested toward maximizing the attributes of clean energy
technologies, taking into account the extent to which support provided under
this Act is likely to accrue subsequent benefits attributable to
commercial-scale deployment earlier than would have otherwise occurred;
and
(E)with the
concurrence of the Board, set expected loss reserves for the support provided
by the Administration consistent with section 8(a)(1)(C).
(c)
(1)The Board of Directors of the Administration shall
consist of—
(A)the Secretary or
the designee of the Secretary, who shall serve as an ex-officio voting member
of the Board of Directors;
(B)the
Administrator, who shall serve as the Chairman of the Board of Directors;
and
(C)7 additional
members who shall—
(i)be
appointed, by the President, by and with the advice and consent of the Senate,
for staggered 5-year terms; and
(ii)to
the maximum extent practicable, have experience in banking or financial
services relevant to the operations of the Administration, including
individuals with substantial experience in the development of energy projects,
the electricity generation sector, the transportation sector, the manufacturing
sector, and the energy efficiency sector (including building retrofits).
(2)The
Board of Directors shall—
(A)oversee the
operations of the Administration and ensure industry best practices are
followed in all financial transactions involving the Administration;
(B)consult with the
Administrator on the general policies and procedures of the Administration to
ensure the interests of the taxpayers are protected;
(C)ensure the
portfolio of investments are consistent with purposes of this Act and with the
long-term financial stability of the Administration;
(D)ensure that the
operations and activities of the Administration are consistent with the
development of a robust private sector that can provide commercial loans or
financing products; and
(E)not serve on a
full-time basis, except that the Board of Directors shall meet at least
quarterly to review, as appropriate, applications for credit support and set
policies and procedures as necessary.
(3)An
appointed member of the Board of Directors may be removed from office by the
President for good cause.
(4)An
appointed seat on the Board of Directors that becomes vacant shall be filled by
appointment by the President, but only for the unexpired portion of the term of
the vacating member.
(5)An appointed member of the Board of Directors shall be
compensated at a rate equal to the daily equivalent of the annual rate of basic
pay prescribed for level III of the Executive Schedule under section 5314 of
title 5, United States Code, for each day (including travel time) during which
the member is engaged in the performance of the duties of the Board of
Directors.
(d)Energy
Technology Advisory Council
(1)The Administration shall have an Energy Technology
Advisory Council consisting of—
(A)5 members
selected by the Secretary; and
(B)3 members
selected by the Board of Directors of the Administration.
(2)The
members of the Advisory Council shall—
(A)have relevant
scientific expertise; and
(B)in the case of
the members selected by the Secretary under paragraph (1)(A), include
representatives of—
(i)the
academic community;
(ii)the private
research community;
(iii)National
Laboratories;
(iv)the technology
or project development community; and
(v)the
commercial energy financing and operations sector.
(3)The
Advisory Council shall—
(A)advise on the
methodology developed under subsection (b)(2)(D); and
(B)advise on the
technological approaches that should be supported by the Administration to meet
the technology deployment goals established by the Secretary pursuant to
section 6.
(4)
(A)Members of the Advisory Council shall have 5-year
staggered terms, as determined by the Secretary and the Administrator.
(B)A
member of the Advisory Council may be reappointed.
(5)A
member of the Advisory Council, who is not otherwise compensated as a Federal
employee, shall be compensated at a rate equal to the daily equivalent of the
annual rate of basic pay prescribed for level IV of the Executive Schedule
under section 5315 of title 5, United States Code, for each day (including
travel time) during which the member is engaged in the performance of the
duties of the Advisory Council.
(e)
(1)The Administrator, in consultation with the Board of
Directors, may—
(A)appoint and
terminate such officers, attorneys, employees, and agents as are necessary to
carry out this Act; and
(B)vest those
personnel with such powers and duties as the Administrator may
determine.
(2)
(A)Notwithstanding section 3304 and sections 3309 through
3318 of title 5, United States Code, the Administrator may, on a determination
that there is a severe shortage of candidates or a critical hiring need for
particular positions, recruit and directly appoint highly qualified critical
personnel with specialized knowledge important to the function of the
Administration into the competitive service.
(B)The
authority granted under subparagraph (A) shall not apply to positions in the
excepted service or the Senior Executive Service.
(C)In
exercising the authority granted under subparagraph (A), the Administrator
shall ensure that any action taken by the Administrator—
(i)is
consistent with the merit principles of section 2301 of title 5, United States
Code; and
(ii)complies with
the public notice requirements of section 3327 of title 5, United States
Code.
(D)Termination of
effectivenessThe authority provided by this paragraph terminates
effective on the date that is 2 years after the date of enactment of this
Act.
(3)
(A)Notwithstanding section 5377 of title 5, United States
Code, and without regard to the provisions of that title governing appointments
in the competitive service or the Senior Executive Service and chapters 51 and
53 of that title (relating to classification and pay rates), the Administrator
may establish, fix the compensation of, and appoint individuals to critical
positions needed to carry out the functions of the Administration, if the
Administrator certifies that—
(i)the
positions require expertise of an extremely high level in a financial,
technical, or scientific field;
(ii)the
Administration would not successfully accomplish an important mission without
such an individual; and
(iii)exercise of the
authority is necessary to recruit an individual who is exceptionally well
qualified for the position.
(B)The
authority granted under subparagraph (A) shall be subject to the following
conditions:
(i)The
number of critical positions authorized by subparagraph (A) may not exceed 20
at any 1 time in the Administration.
(ii)The term of an
appointment under subparagraph (A) may not exceed 4 years.
(iii)An individual
appointed under subparagraph (A) may not have been an Administration employee
at any time during the 2-year period preceding the date of appointment.
(iv)Total annual
compensation for any individual appointed under subparagraph (A) may not exceed
the highest total annual compensation payable at the rate determined under
section 104 of title 3, United States Code.
(v)An
individual appointed under subparagraph (A) may not be considered to be an
employee for purposes of subchapter II of chapter 75 of title 5, United States
Code.
(C)Each
year, the Administrator shall submit to Congress a notification that lists each
individual appointed under this paragraph.
8.
(a)
(1)
(A)The Administration may issue direct loans, letters of
credit, loan guarantees, insurance products, or such other credit enhancements
(including through participation as a co-lender or a lending member of a
syndication) as the Administrator considers appropriate to manufacture or
deploy clean energy technologies and clean distributed energy technologies or
associated advanced materials if the Administrator has determined that
deployment of the technologies would benefit or be accelerated by the
support.
(B)In carrying out this paragraph and awarding credit
support to projects, the Administrator shall account for—
(i)how
the technology rates based on an evaluation methodology established by the
Advisory Council;
(ii)how the project
fits with the goals established under section 6; and
(iii)the potential
for the applicant to successfully complete the project.
(C)
(i)The Administrator shall establish an expected loss
reserve to account for estimated losses attributable to activities under this
section that is consistent with the purposes of—
(I)developing
breakthrough technologies to the point at which technology risk is largely
mitigated;
(II)achieving
widespread deployment and advancing the commercial viability of clean energy
technologies and clean distributed energy technologies; and
(III)advancing the
goals established under section 6.
(ii)Initial
expected loss reserveUntil such time as the Administrator
determines sufficient data exist to establish an expected loss reserve that is
appropriate, the Administrator shall consider establishing an initial rate of
10 percent for the portfolio of investments under this Act.
(iii)Portfolio
investment approachThe Administration shall—
(I)use a portfolio
investment approach to mitigate risk and diversify investments across
technologies;
(II)to the maximum
extent practicable and consistent with promoting the continued viability of the
Administration and robust private financing markets for clean energy
technologies, weigh the portfolio of investments in projects to advance the
goals established under section 6; and
(III)consistent with
the expected loss reserve established under this subparagraph, the purposes of
this Act, and section 7(b)(2)(B), provide the maximum practicable percentage of
support to promote breakthrough technologies.
(iv)
(I)The Board of Directors shall review on an annual basis
the loss rates of the portfolio to determine the adequacy of the
reserves.
(II)Not
later than 90 days after the date of the initiation of the review, the
Administrator shall submit to the Committee on Energy and Natural Resources of
the Senate and the Committee on Energy and Commerce of the House of
Representatives a report describing the results of the review and any
recommended policy changes.
(D)
(i)To the maximum extent practicable and consistent with
sound business practices, the Administration shall seek to consolidate internal
and interagency reviews of projects under this Act such that final decisions on
applications can generally be issued not later than 180 days after the date of
submission of a completed application.
(ii)In carrying out this Act, the Administration shall, to the
maximum extent practicable—
(I)avoid duplicating
efforts that have already been undertaken by other agencies (including State
agencies acting under Federal programs); and
(II)with the advice
of the Council on Environmental Quality and any other applicable agencies, use
the administrative records of similar reviews conducted throughout the
executive branch to develop the most expeditious review process
practicable.
(E)
(i)No credit support shall be issued under this section
unless the borrower has provided to the Administrator reasonable assurances
that all laborers and mechanics employed by contractors and subcontractors in
the performance of construction work financed in whole or in part by the
Administration will be paid wages at rates not less than those prevailing on
projects of a character similar to the contract work in the civil subdivision
of the State in which the contract work is to be performed as determined by the
Secretary of Labor in accordance with subchapter IV of chapter 31 of part A of
subtitle II of title 40, United States Code.
(ii)With respect to the labor standards specified in this
section, the Secretary of Labor shall have the authority and functions set
forth in Reorganization Plan Numbered 14 of 1950 (64 Stat. 1267; 5 U.S.C. App.)
and section 3145 of title 40, United States Code.
(2)
(A)The Administration shall work to develop financial
products and arrangements to both promote the widespread deployment of, and
mobilize private sector support of credit and investment institutions for,
clean energy technologies, clean distributed energy technologies, and related
manufacturing by facilitating aggregation of small projects and by providing
indirect credit support, including credit enhancement.
(B)The Administration—
(i)in
cooperation with Federal, State, local, and private sector entities, shall
develop debt instruments that provide for the aggregation of, or directly
aggregate, projects for clean energy technology and clean distributed energy
technology deployments on a scale appropriate for residential or commercial
applications;
(ii)may insure,
purchase, and make commitments to purchase, any debt instrument associated with
the deployment of clean energy technologies and clean distributed energy
technologies (including instruments secured by liens or other collateral
related to the funding of clean energy technology and clean distributed energy
technology) for the purposes of enhancing the availability of private financing
for clean energy technology and clean distributed energy technology
deployments; and
(iii)may develop
appropriate credit support mechanisms (including insurance, support for energy
services agreements or property-assessed clean energy bonds, aggregate on-meter
agreements, and other similar mechanisms) to promote financing of commercial,
industrial, multifamily residence, municipal, institution of higher education,
school, and hospital building energy efficiency retrofit projects, or pools of
projects, including such criteria, standards, and guidelines as are necessary
to foster widespread private sector adoption, including measurement and
verification of energy savings.
(C)Disposition of
debt or interestThe Administration may acquire, hold, and sell
or otherwise dispose of, pursuant to commitments or otherwise, any debt
associated with the deployment of clean energy technologies or interest in the
debt.
(D)
(i)The Administrator may establish requirements, and impose
charges or fees, which may be regarded as elements of pricing, for different
classes of sellers, servicers, or services.
(ii)Classification
of sellers and servicersFor the purpose of clause (i), the
Administrator may classify sellers and servicers as necessary to promote
transparency and liquidity and properly characterize the risk of
default.
(E)The
Administrator shall establish—
(i)eligibility
criteria for loan originators, sellers, and servicers seeking support for
portfolios of financial obligations relating to clean energy technologies so as
to ensure the capability of the loan originators, sellers, and servicers to
perform the functions required to maintain the expected performance of the
portfolios; and
(ii)such criteria,
standards, guidelines, and mechanisms such that, to the maximum extent
practicable, loan originators and sellers will be able to determine the
eligibility of loans for resale at the time of initial lending.
(F)
(i)The Administration may lend on the security of, and make
commitments to lend on the security of, any debt that the Administration has
issued or is authorized to purchase under this section.
(ii)On such terms and conditions as the Administrator may
prescribe, the Administration may, based on the debt and with the concurrence
of the Board of Directors—
(I)give security or
guarantee;
(II)pay interest or
other return; and
(III)issue notes,
debentures, bonds, or other obligations or securities.
(G)
(i)The Administrator shall determine—
(I)the volume of the
lending activities of the Administration; and
(II)the types of
loan ratios, risk profiles, interest rates, maturities, and charges or fees in
the secondary market operations of the Administration.
(ii)Determinations
under clause (i) shall be consistent with the objectives of—
(I)providing an
attractive investment environment for clean energy technologies;
(II)making the
operations of the Administration self-supporting over the long term; and
(III)advancing the
goals established under section 6.
(H)All securities issued or guaranteed by the
Administration shall, to the same extent as securities that are direct
obligations of or obligations guaranteed as to principal or interest by the
United States, be considered to be exempt securities within the meaning of the
laws administered by the Securities and Exchange Commission.
(b)Other
authorized programs
(1)The Secretary may delegate to the Administration the
provision of financial services and program management for grant, loan, and
other credit enhancement programs authorized under any other provision of
law.
(2)In
administering any other program delegated by the Secretary, the Administration
shall, to the maximum extent practicable (as determined by the
Administrator)—
(A)administer the
program in a manner that is consistent with the terms and conditions of this
Act; and
(B)minimize the
administrative costs to the Federal Government.
(3)Loans for
qualified energy efficiency projects
(A)In
this paragraph:
(i)The term electric utility has the meaning
given the term in section 3 of the Public Utility Regulatory Policies Act of
1978 (16 U.S.C. 2602).
(ii)The term natural gas utility has the meaning
given the term gas utility
in section 302 of the Public Utility
Regulatory Policies Act of 1978 (15 U.S.C. 3202).
(iii)Qualified
energy efficiency projectThe term qualified energy
efficiency project means, as determined by the Administrator, a project,
technology, function, or measure—
(I)that results in
the reduction of energy use required to achieve the same level of service or
output prior to the application of the project, technology, function, or
measure;
(II)that is carried
out domestically within the territorial borders of the United States;
and
(III)the payback
period of which does not exceed 10 years.
(B)Loans for
electric utilities and natural gas utilities
(i)The Administrator may make loans available to an electric
utility or natural gas utility to carry out qualified energy efficiency
projects.
(ii)Term, interest
rate, and repaymentA loan made by the Administrator to an
electric utility or natural gas utility under this paragraph shall—
(I)be for a term of
30 years or less;
(II)bear an annual
interest rate that is 50 basis points more than the Federal funds rate
established by the Board of Governors of the Federal Reserve System at the time
of loan approval; and
(III)provide for any
additional revenue, generated after the payback period from foregone energy
costs attributable to the qualified energy efficiency project funded by the
loan to be divided equally between the applicant and the Fund.
(C)The
Administrator may disapprove an application for a loan for a qualified energy
efficiency project under this paragraph if the Administrator determines
that—
(i)the
qualified energy efficiency project would not—
(I)result in a
significant reduction in energy consumption; or
(II)benefit a
significant number of energy consumers; or
(ii)the project
applicant—
(I)has not
successfully completed the qualified energy efficiency project in a timely
manner; or
(II)may not be able
to repay the loan over the life of the loan.
9.
(a)
(1)Subject to paragraph (2), on a finding by the Secretary
and the Administrator that the Administration is sufficiently ready to assume
the functions and that applicants to those programs will not be unduly
adversely affected but in no case later than 18 months after the date of
enactment of this Act, all of the authority of the Secretary under title XVII
of the Energy Policy Act of 2005 (42 U.S.C. 16511 et seq.) and authorities
established by this Act shall be transferred to the Administration to carry out
this Act.
(2)Failure to
transfer authoritiesIf the authorities are not transferred to
the Administration in accordance with paragraph (1), the Secretary and the
Administrator shall submit to Congress a report on the reasons for delay and an
expected timetable for transfer of the authorities to the
Administration.
(3)Effect on
existing rights and obligationsThe transfer of authority under
this subsection shall not affect the rights and obligations of any party that
arise under a predecessor program or authority prior to the transfer under this
subsection.
(4)Transfer of
fund authority
(A)On transfer of authority pursuant to paragraph (1), the
Administration shall have all authorities to make use of the Fund reserved for
the Secretary before the transfer.
(B)Effective beginning on the date of enactment of this
Act, the Administrator may make use of up to 1.5 percent of the amounts in the
Fund as of the beginning of each fiscal year to pay administrative expenses for
that fiscal year to carry out the purposes of this Act.
(5)
(A)Amounts in the Fund shall be available for discharge of
liabilities and all other expenses of the Administration, including subsequent
transfer to the respective credit accounts.
(B)All
activities of the Administration that could result in a liability for the
United States shall be transparently accounted for and no obligation or
liability may be incurred unless—
(i)the
appropriate amounts are transferred to credit accounts for activities pursuant
to the Federal Credit Reform Act of 1990 (2 U.S.C. 661a); or
(ii)sufficient
amounts are reserved within the Fund to account for such liabilities.
(6)It is the sense of the Senate that the Fund should
include $10,000,000,000 in initial capitalization, with such funds offset to
ensure no net increase in the national debt.
(b)
(1)Any payment to discharge liabilities arising from
agreements under this Act shall be made exclusively out of the Fund or the
associated credit account, as appropriate.
(2)Subject
to paragraph (1), the full faith and credit of the United States is pledged to
the payment of all obligations entered into by the Administration pursuant to
this Act.
(c)
(1)Consistent with achieving the purposes of this Act, the
Administrator shall charge fees or collect compensation generally in accordance
with commercial rates.
(2)All fees collected by the Administration may be retained by
the Administration and placed in the Fund and may remain available to the
Administration, without further appropriation or fiscal year limitation, for
use in carrying out the purposes of this Act.
(3)Breakthrough
technologiesTo the extent practicable, the Administration shall
use alternative fee arrangements and charge the minimum amount in upfront fees
or compensation for breakthrough technologies, consistent with the long-term
viability of the Administration, unless the Administration first determines
that a higher initial charge will not impede the development of the
technology.
(4)Alternative fee
arrangementsThe Administration may use such alternative
arrangements (such as profit participation, contingent fees, warrants, and
other valuable contingent interests) as the Administration considers
appropriate to compensate the Administration for the expenses of the
Administration (including amounts used from the Fund) and the inherent risk of
the support.
(d)Amounts collected from applicants by the Administration
or otherwise designated from the Fund for the cost of a loan or loan guarantee
shall be transferred by the Administration to the respective credit program
accounts.
10.
(a)Immunity from
impairment, limitation, or restriction
(1)All rights and remedies of the Administration (including
any rights and remedies of the Administration on, under, or with respect to any
mortgage or any obligation secured by a mortgage) shall be immune from
impairment, limitation, or restriction by or under—
(A)any law (other
than a law enacted by Congress expressly in limitation of this paragraph) that
becomes effective after the acquisition by the Administration of the subject or
property on, under, or with respect to which the right or remedy arises or
exists or would so arise or exist in the absence of the law; or
(B)any
administrative or other action that becomes effective after the
acquisition.
(2)The Administrator may conduct the business of the
Administration without regard to any qualification or law of any State relating
to incorporation.
(b)With the consent of a department, establishment, or
instrumentality (including any field office), the Administration may—
(1)use and act
through any department, establishment, or instrumentality; or
(2)use, and pay
compensation for, information, services, facilities, and personnel of the
department, establishment, or instrumentality.
(c)The
Administrator shall be the senior procurement officer for the Administration
for purposes of section 16(a) of the Office of Federal Procurement Policy Act
(41 U.S.C. 414(a)).
(d)
(1)Funds
of the Administration may be invested in such investments as the Board of
Directors may prescribe.
(2)Interest
earnings from funds described in paragraph (1) (other than fees collected under
section 9(c)) may be spent by the Administration only to such extent, or in
such amounts, as are provided in advance by appropriation Acts.
(3)Any Federal Reserve bank or any bank as to which at the
time of the designation of the bank by the Administrator there is outstanding a
designation by the Secretary of the Treasury as a general or other depository
of public money, may be designated by the Administrator as a depositary or
custodian or as a fiscal or other agent of the Administration.
(e)Notwithstanding
section 1349 of title 28, United States Code, or any other provision of
law—
(1)the
Administration shall be considered a corporation covered by sections 1345 and
1442 of title 28, United States Code;
(2)all civil actions
to which the Administration is a party shall be considered to arise under the
laws of the United States, and the district courts of the United States shall
have original jurisdiction of all such actions, without regard to amount or
value; and
(3)any civil or
other action, case or controversy in a court of a State, or in any court other
than a district court of the United States, to which the Administration is a
party may at any time before trial be removed by the Administration, without
the giving of any bond or security and by following any procedure for removal
of causes in effect at the time of the removal—
(A)to the district
court of the United States for the district and division embracing the place in
which the same is pending; or
(B)if there is no
such district court, to the district court of the United States for the
district in which the principal office of the Administration is located.
(f)Not later than 1 year after commencement of operation of
the Administration and at least biannually thereafter, the Administrator shall
submit to the Committee on Energy and Natural Resources of the Senate and the
Committee on Energy and Commerce of the House of Representatives a report that
includes a description of—
(1)the technologies
supported by activities of the Administration and how the activities advance
the purposes of this Act; and
(2)the performance
of the Administration on meeting the goals established under section 6.
(g)Audits by the
Comptroller General
(1)The programs, activities, receipts, expenditures, and
financial transactions of the Administration shall be subject to audit by the
Comptroller General of the United States under such rules and regulations as
may be prescribed by the Comptroller General.
(2)The
representatives of the Government Accountability Office shall—
(A)have access to
the personnel and to all books, accounts, documents, records (including
electronic records), reports, files, and all other papers, automated data,
things, or property belonging to, under the control of, or in use by the
Administration, or any agent, representative, attorney, advisor, or consultant
retained by the Administration, and necessary to facilitate the audit;
(B)be afforded full
facilities for verifying transactions with the balances or securities held by
depositories, fiscal agents, and custodians;
(C)be authorized to
obtain and duplicate any such books, accounts, documents, records, working
papers, automated data and files, or other information relevant to the audit
without cost to the Comptroller General; and
(D)have the right of
access of the Comptroller General to such information pursuant to section
716(c) of title 31, United States Code.
(3)
(A)For the purpose of conducting an audit under this
subsection, the Comptroller General may, in the discretion of the Comptroller
General, employ by contract, without regard to section 3709 of the Revised
Statutes (41 U.S.C. 5), professional services of firms and organizations of
certified public accountants for temporary periods or for special
purposes.
(B)
(i)On the request of the Comptroller General, the
Administration shall reimburse the General Accountability Office for the full
cost of any audit conducted by the Comptroller General under this
subsection.
(ii)Such
reimbursements shall—
(I)be credited to
the appropriation account entitled Salaries and Expenses, Government
Accountability Office
at the time at which the payment is received;
and
(II)remain available
until expended.
(h)Annual
independent audits
(1)The Administrator shall—
(A)have an annual
independent audit made of the financial statements of the Administration by an
independent public accountant in accordance with generally accepted auditing
standards; and
(B)submit to the
Secretary the results of the audit.
(2)In
conducting an audit under this subsection, the independent public accountant
shall determine and report on whether the financial statements of the
Administration—
(A)are presented
fairly in accordance with generally accepted accounting principles; and
(B)comply with any
disclosure requirements imposed under this Act.
(i)
(1)The Administrator shall submit to the Secretary annual
and quarterly reports of the financial condition and operations of the
Administration, which shall be in such form, contain such information, and be
submitted on such dates as the Secretary shall require.
(2)Contents of
annual reportsEach annual report shall include—
(A)financial
statements prepared in accordance with generally accepted accounting
principles;
(B)any supplemental
information or alternative presentation that the Secretary may require;
and
(C)an assessment (as
of the end of the most recent fiscal year of the Administration), signed by the
chief executive officer and chief accounting or financial officer of the
Administration, of—
(i)the
effectiveness of the internal control structure and procedures of the
Administration; and
(ii)the compliance
of the Administration with applicable safety and soundness laws.
(3)The Secretary may require the Administrator to submit
other reports on the condition (including financial condition), management,
activities, or operations of the Administration, as the Secretary considers
appropriate.
(4)Each
report of financial condition shall contain a declaration by the Administrator
or any other officer designated by the Board of Directors of the Administration
to make the declaration, that the report is true and correct to the best of the
knowledge and belief of the officer.
(5)Reports required under this section shall be published
and made publicly available as soon as is practicable after receipt by the
Secretary.
(j)Scope and
termination of authority
(1)The Administrator shall not initiate any new
obligations under this Act on or after January 1, 2031.
(2)The authorities and obligations of the Administration
shall revert to the Secretary on January 1, 2031.
11.Transparency
for delayed loan guarantee applicationsSection 1702 of the Energy Policy Act of
2005 (42 U.S.C. 16512) (as amended by section 5(e)) is amended by adding at the
end the following:
(o)
(1)If the Secretary fails to make a final decision by the
date that is 270 days after the date on which the Secretary selects an
application to proceed to negotiations of terms and conditions for issuance of
a conditional commitment for a loan guarantee application under this title, not
later than 7 days after that date, and for every 90-day period thereafter, the
Secretary shall—
(A)prepare a status
report for the period covered by the report; and
(B)submit the status
report to—
(i)the Committee on
Energy and Natural Resources of the Senate; and
(ii)the Committee on
Energy and Commerce of the House of Representatives.
(2)The
status report described in paragraph (1) shall contain—
(A)a description of
each reason for the delay of the application;
(B)the specific
office within the loan guarantee program, the Office of Management and Budget,
or other office within the Administration that, for the period covering the
status report, has reviewed the application; and
(C)a detailed
schedule for completion of the application
review.
.
12.Section 1703(b) of
the Energy Policy Act of 2005 (42 U.S.C. 16513(b)) is amended by adding at the
end the following:
(11)Substitute
natural gas production facilities, if the gas is produced—
(A)from a solid
feedstock through a gasification process; and
(B)in a manner that
captures, for storage or beneficial use, at least 90 percent of the carbon
produced through the gasification
process.
.
August 30 (legislative day, August 2), 2011
Read twice and placed on the calendar