# Rural Energy for America Program

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-8460

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** April 14, 2011
- **Citation:** 76 FR 21110

## Text

DEPARTMENT OF AGRICULTURE
Rural Business-Cooperative Service
Rural Utilities Service
7 CFR Part 4280
RIN 0575-AA76
Rural Energy for America Program

AGENCY:

Rural Business-Cooperative Service and Rural Utilities Service, USDA.

ACTION:

Interim rule with request for comments.

SUMMARY:

The Rural Business-Cooperative Service (Agency) is establishing an interim rule for the Rural Energy for America Program (REAP), which is authorized under the Food, Conservation, and Energy Act of 2008. This interim rule modifies the existing grant and guaranteed loan program for renewable energy systems and energy efficiency improvements. In addition, it adds a grant program for feasibility studies for renewable energy systems and a grant program for energy audits and renewable energy development assistance, as provided in the Food, Conservation, and Energy Act of 2008.

DATES:

This interim rule is effective April 14, 2011. Written comments on this interim rule must be received on or before June 13, 2011.

ADDRESSES:

You may submit comments on this interim rule by any of the following methods:

•
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.

•
Mail:
Submit written comments via the U.S. Postal Service to the Branch Chief, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, STOP 0742, 1400 Independence Avenue, SW., Washington, DC 20250-0742.

•
Hand Delivery/Courier:
Submit written comments via Federal Express Mail or other courier service requiring a street address to the Branch Chief, Regulations and Paperwork Management Branch, U.S. Department of Agriculture, 300 7th Street, SW., 7th Floor, Washington, DC 20024.

All written comments will be available for public inspection during regular work hours at the 300 7th Street, SW., 7th Floor address listed above.

FOR FURTHER INFORMATION CONTACT:

Diane Berger, Energy Branch, U.S. Department of Agriculture, 1400 Independence Avenue, SW., Stop 3225, Washington, DC 20250-3201; telephone (202) 260-1508. E-mail:
diane.berger@wdc.usda.gov.

SUPPLEMENTARY INFORMATION:

Executive Order 12866

This interim rule has been reviewed under Executive Order (EO) 12866 and has been determined to be significant by the Office of Management and Budget. The EO defines a “significant regulatory action” as one that is likely to result in a rule that may: (1) Have an annual effect on the economy of $100 million or more or adversely affect, in a material way, the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities; (2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another agency; (3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs or the rights and obligations of recipients thereof; or (4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this EO.

The Agency conducted a benefit-cost analysis to fulfill the requirements of EO 12866. In this analysis, the Agency identifies potential benefits and costs of REAP to lenders, borrowers, and the Agency. The analysis contains quantitative estimates of the burden to the public and the Federal government and qualitative descriptions of the expected economic, environmental, and energy impacts associated with REAP.

Unfunded Mandates Reform Act

Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public Law 104-4, establishes requirements for Federal agencies to assess the effects of their regulatory actions on State, local, and tribal governments and the private sector. Under section 202 of the UMRA, Rural Development generally must prepare a written statement, including a cost-benefit analysis, for proposed and final rules with “Federal mandates” that may result in expenditures to State, local, or tribal governments, in the aggregate, or to the private sector of $100 million or more in any one year. When such a statement is needed for a rule, section 205 of the UMRA generally requires Rural Development to identify and consider a reasonable number of regulatory alternatives and adopt the least costly, more cost-effective, or least burdensome alternative that achieves the objectives of the rule.

This interim rule contains no Federal mandates (under the regulatory provisions of Title II of the UMRA) for State, local, and tribal governments or the private sector. Thus, this rule is not subject to the requirements of sections 202 and 205 of the UMRA.

Environmental Impact Statement

Under this program, the Agency conducts a National Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321
et seq.,
review for each application received. To date, no significant environmental impacts have been reported, and Findings of No Significant Impact (FONSI) have been issued for each approved application. Taken collectively, the applications show no potential for significant adverse cumulative effects.

This document has been reviewed in accordance with 7 CFR part 1940, subpart G, “Environmental Program.” Rural Development has determined that this action does not constitute a major Federal action significantly affecting the quality of the human environment, and in accordance with NEPA, an Environmental Impact Statement is not required. Grant and guaranteed loan applications will be reviewed individually to determine compliance with NEPA.

Executive Order 12988, Civil Justice Reform

This interim rule has been reviewed under EO 12988, Civil Justice Reform. In accordance with this rule: (1) All State and local laws and regulations that are in conflict with this rule will be preempted; (2) no retroactive effect will be given to this rule; and (3) administrative proceedings in accordance with the regulations of the Department of Agriculture's National Appeals Division (7 CFR part 11) must be exhausted before bringing suit in court challenging action taken under this rule unless those regulations specifically allow bringing suit at an earlier time.

Executive Order 13132, Federalism

It has been determined, under EO 13132, that this interim rule does not have sufficient federalism implications to warrant the preparation of a Federalism Assessment. The provisions contained in the rule will not have a substantial direct effect on States or their political subdivisions or on the distribution of power and responsibilities among the various government levels.

Regulatory Flexibility Act

The Regulatory Flexibility Act (5 U.S.C. 601-612) (RFA) generally requires an agency to prepare a regulatory flexibility analysis of any rule

subject to notice and comment rulemaking requirements under the Administrative Procedure Act or any other statute unless the agency certifies that the rule will not have an economically significant impact on a substantial number of small entities. Small entities include small businesses, small organizations, and small governmental jurisdictions.

In compliance with the RFA, Rural Development has determined that this action, while mostly affecting small entities, will not have a significant economic impact on a substantial number of these small entities. Rural Development made this determination based on the fact that this regulation only impacts those who choose to participate in the program. Small entity applicants will not be affected to a greater extent than large entity applicants.

Executive Order 13211, Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use

The regulatory impact analysis conducted for this interim rule meets the requirements for EO 13211, which states that an agency undertaking regulatory actions related to energy supply, distribution, or use is to prepare a Statement of Energy Effects. This analysis finds that this interim rule will not have any adverse impacts on energy supply, distribution, or use.

Executive Order 12372, Intergovernmental Review of Federal Programs

This program is not subject to the provisions of EO 12372, which require intergovernmental consultation with State and local officials.

Executive Order 13175, Consultation and Coordination With Indian Tribal Governments

United States Department of Agriculture (USDA) will undertake, within 6 months after this rule becomes effective, a series of regulation Tribal consultation sessions to gain input by elected Tribal officials or their designees concerning the impact of this rule on Tribal governments, communities, and individuals. These sessions will establish a baseline of consultation for future actions, should any be necessary, regarding this rule. Reports from these sessions for consultation will be made part of the USDA annual reporting on Tribal Consultation and Collaboration. USDA will respond in a timely and meaningful manner to all Tribal government requests for consultation concerning this rule and will provide additional venues, such as webinars and teleconferences, to periodically host collaborative conversations with Tribal leaders and their representatives concerning ways to improve this rule in Indian country.

The policies contained in this rule will not have Tribal implications that preempt Tribal law.

Programs Affected

The Rural Energy for America Program is listed in the Catalog of Federal Domestic Assistance under Number 10.868.

Paperwork Reduction Act

The information collection requirements contained in this interim rule have been approved by the Office of Management and Budget (OMB) under three separate information collections. The information collection requirements associated with renewable energy system and energy efficiency improvement grants and guaranteed loans, as covered in this Interim Rule, has been approved by OMB under OMB Control Number 0570-0050. The information collection requirements associated with energy audit and renewable energy development assistance grants and with renewable energy feasibility study grants have been approved by OMB under OMB Control Number 0570-0059 and OMB Control Number 0570-0061, respectively.

The collection of information is vital for Rural Development to make wise decisions regarding the eligibility of projects and borrowers in order to ensure compliance with the regulations and that the funds obtained from the Government are used appropriately (
e.g.,
used for the purposes for which the guaranteed loans were awarded). The type of information required depends on the type of financial assistance being sought.

E-Government Act Compliance

Rural Development is committed to complying with the E-Government Act, to promote the use of the Internet and other information technologies to provide increased opportunities for citizen access to Government information and services, and for other purposes.

I. Background

Rural Development administers a multitude of Federal programs for the benefit of rural America, ranging from housing and community facilities to infrastructure and business development. Its mission is to increase economic opportunity and improve the quality of life in rural communities by providing the leadership, infrastructure, venture capital, and technical support that enables rural communities to prosper. To achieve its mission, Rural Development provides financial support (including direct loans, grants, and loan guarantees) and technical assistance to help enhance the quality of life and provide the foundation for economic development in rural areas.

In response to the Farm Security and Rural Investment Act of 2002 (FSRIA), which established the Renewable Energy Systems and Energy Efficiency Improvements Program under Title IX, Section 9006, the Agency promulgated a rule (70 FR 41264, July 18, 2005) establishing the RES and EEI program (7 CFR part 4280, subpart B) for making grants, loan guarantees, and direct loans to farmers and ranchers (agricultural producers) or rural small businesses to purchase renewable energy systems and make energy efficiency improvements. Renewable energy sources eligible for funding included bioenergy, anaerobic digesters, electric geothermal, direct geothermal, solar, hydrogen, and wind.

Section 9001 of the Food, Conservation, and Energy Act of 2008 (2008 Farm Bill) amended Title IX of the FSRIA. Under the 2008 Farm Bill and Section 9007 of the amended FSRIA, the Agency is authorized to continue providing to agricultural producers and rural small businesses loan guarantees and grants for the development and construction of RES and EEI projects. In addition to the current set of renewable energy projects eligible for funding, the 2008 Farm Bill expands the program to include two new renewable energy technologies: hydroelectric and ocean energy. Further, the 2008 Farm Bill authorizes the Agency to provide grants specifically for energy audits, renewable energy development assistance, and RES feasibility studies. This newly expanded program is referred to as REAP, which continues the Agency's assistance to the adoption of both renewable energy systems and energy efficiency improvements through Federal government loan guarantees and grants.

REAP has been operating since 2005 under 7 CFR part 4280, subpart B, and, since the 2008 Farm Bill, through a series of
Federal Register
notices implementing the provisions in the 2008 Farm Bill for RES feasibility studies, energy audits, and renewable energy development assistance. For the RES feasibility studies, these notices were published on May 26, 2009 (74 FR 24769) and August 6, 2010 (75 FR 47525). For energy audits and renewable energy development assistance, these notices were published on March 11,

2009 (74 FR 10533) and May 27, 2010 (75 FR 29706).

This regulation establishes a consolidated REAP program by including each part of the program in a single subpart. Up to now, only the RES and EEI grant and guaranteed loan program requirements have been implemented under 7 CFR part 4280, subpart B and, for requirements established by the 2008 Farm Bill, through
Federal Register
notices. The requirements for RES feasibility study grants and for energy audit and renewable energy development assistance grants have been implemented through a series of
Federal Register
notices. It is, and has been, the Agency's intent to consolidate each of these programs into one REAP program.

Given the history of the implementation of this program, as described above, it is important to immediately implement a regulation in an effort to signal full implementation of REAP. Since 2002, the Agency, through its operation of the program, has developed experience regarding how this authority can be used to address renewable energy and energy efficiency issues facing agricultural producers and rural small businesses. The interim rule responds to these lessons learned. In addition, in determining to publish this regulation as an interim rule, the Agency is balancing the interests of not forestalling the implementation and administration of the program while it develops program regulations versus its desire to obtain public comment. For these reasons, the Agency chose to publish this as an interim rule as opposed to publishing it as a proposed rule with a separate notice of funding availability for the Fiscal Year 2011 funding cycle as it has done in previous fiscal years. By publishing an interim rule, the Agency is able to obtain public comment regarding the operation of the program for Fiscal Year 2011. The Agency believes that this approach is in the best interest of the public.

Following the publication of this interim rule, the Agency will propose and promulgate a subsequent rule for REAP to replace this interim rule.

Interim rule.
USDA Rural Development is issuing this regulation as an interim rule, effective April 14, 2011. All provisions of this regulation are adopted on an interim final basis, are subject to a 60-day comment period, and will remain in effect until the Agency adopts the final rule.

II. Development of the Interim Rule for REAP

As noted above, this interim rule establishes a consolidated REAP program by including each part of the program in a single subpart. The provisions in the interim rule are based on the following:

1. The existing program found at 7 CFR part 4280, subpart B, for renewable energy systems and energy efficiency improvements as modified by the 2008 Farm Bill and the Fiscal Year 2010 notice.

2. The Fiscal Year 2010 notices that implement the 2008 Farm Bill provisions for RES feasibility studies, energy audits, and renewable energy development assistance.

3. The inclusion of flexible fuel pumps that dispense blended liquid transportation fuel as an important new component of the Federal government's strategy for encouraging the use of renewable fuels. Section 9007(a)(2) authorizes the Agency to fund parts of renewable energy systems as well as renewable energy systems in whole. The Agency has determined that a flexible fuel pump is a uniquely critical aspect of a biofuel renewable energy system defined as the conversion of the biomass through the dispensing of the biofuel to a vehicle.

The policy rationale for the Agency to include flexible fuel pumps in REAP is to address a barrier that the Agency has determined impedes the broader use of biofuels as a liquid transportation fuel in the United States. For example, one major aspect of this barrier derives from two scenarios. The first is one of an insufficient availability of higher ethanol-blend fuels in the market place that discourages Americans from purchasing flexible fuel vehicles that can burn such higher ethanol-blend fuels and does not provide a sufficient level of higher ethanol-blend fuel to supply the existing flexible fuel vehicle fleet to fully take advantage of the fleet's ability to consume additional biofuel. The second is one of an insufficient number of flexible fuel vehicles on the road to encourage fuel station owners to expend the capital necessary to install flexible fuel pumps in response to market forces. By allowing REAP to provide financing through grants and loan guarantees to encourage the installation of flexible fuel pumps in rural areas, the Agency believes it can help overcome this barrier. The Agency acknowledges that there are other similar biofuel examples, including barriers to biodiesel.

The Agency recognizes that REAP is designed to address a variety of renewable energy and energy efficiency goals. With the inclusion of flexible fuel pumps for REAP funding, the Agency will ensure that it will not ignore the other important goals and purposes of the program.

4. The removal of citizenship requirements which the Agency has determined is in the best interest of furthering the Administration's goal of increasing the use of renewable energy systems and energy efficiency improvements to include applicants who are not U.S. citizens, provided the proposed project is located in a State and the applicant has a place of business located in a State. In addition, this change is consistent with recent litigation.

5. The modification of the rural area requirement for projects proposed by agricultural producers to allow such projects to be located in non-rural areas. The Agency determined to remove the rural area requirement as it applies to agricultural producers under REAP for several reasons. First, the Agency wanted REAP to be consistent with the Biorefinery Assistance Program, the Repowering Assistance Program, and the Advanced Biofuel Payment Program. The three programs do not include a rural area requirement in their respective interim rules published in February 2011. Second, the Agency has determined that there are a number of agricultural producers that operate in non-rural areas that can benefit from REAP. Such agricultural producers may include commercial nurseries and truck farms (the growing of one or more crops on a scale necessary for shipment to distant markets) that are located near urban areas.

6. The addition of a new paragraph to clarify how the Agency addresses changes in equipment for energy efficiency improvements for determining eligible project costs.

7. The replacement of “return on investment” with “simple payback.” Using the term “return on investment” was creating confusion because the calculations used for this scoring criterion are not typically understood as return on investment. Therefore, we are clarifying the calculations and using the phrase “simple payback” because that is what we are calculating.

8. The correction of several inconsistencies in the previous implementation of 7 CFR part 4280, subpart B and in the Fiscal Year 2010 notices implementing REAP.

By taking into consideration each of the above factors, the Agency has developed an interim rule for REAP.

The Rural Energy for America Program

The following paragraphs discuss the interim rule in terms of changes from the current program as it relates to:

• General Provisions;

• RES and EEI grants;

• RES and EEI guaranteed loans;

• RES feasibility study grants;

• EA and REDA grants; and

• Appendices.

The changes discussed are how the interim rule varies from the existing RES and EEI program in 7 CFR part 4280, subpart B, and the Fiscal Year 2010
Federal Register
notice for the RES and EEI program, and from the implementation of RES feasibility study grants and EA and REDA grants as found in their respective Fiscal Year 2010 notices.

1. General Provisions

The organization of this section follows the first six sections of the current regulation at 7 CFR part 4280, subpart B, with changes as discussed below. The interim rule includes several new sections to the general provisions, the contents of which mostly consolidate existing provisions from the Fiscal Year 2010 Notices that are applicable to each of the programs within REAP. Lastly, the applicant eligibility and project eligibility sections of the existing rule have been relocated to the RES and EEI grants section of the rule and modified as needed.

Purpose (§ 4280.101)

The primary revision to this section is adding reference to provision of grants for conducting RES feasibility studies and for energy audits and renewable energy development assistance. These provisions are being added as a result of the 2008 Farm Bill. In addition, reference to a direct loan program has been removed because direct loans are no longer authorized under the 2008 Farm Bill. Lastly, the Agency also removed current 7 CFR 4280.101(b), which the Agency has determined is unnecessary for the rule. Additional conforming changes were made in subsequent sections, but are not necessarily identified below.

Organization of Subpart (§ 4280.102)

This section is basically the same as existing 7 CFR 4280.102, in that it identifies the organization of the rule. The primary differences are editorial in nature, simplifying the discussion, expanding the section to cover FS, EA, and REDA grants and identifying more clearly the rule's organization.

Definitions (§ 4280.103)

This section was revised by adding, revising, and deleting a number of terms. The major revisions were the addition of definitions from the Fiscal Year 2010 notices for the RES/EEI, FS, EA, and REDA grants. The following present the changes made.

Added Terms

•
Administrator.
This term was added for clarity.

•
Blended liquid transportation fuel.
This term was added to implement the revision to allow retail pumps that combine and dispense a blended liquid transportation fuel to be eligible for grant funding.

•
Departmental regulations.
This term was added and is now referenced in the rule.

•
Flexible fuel pump.
This term was added because the Agency will allow flexible fuel pumps as an eligible RES project. The term refers to a retail pump that combines and dispenses a blended liquid transportation fuel or that dispenses a blended liquid transportation fuel with a percentage volume of renewable fuel in excess of the Federal or State requirements, whichever is higher.

•
Hydroelectric energy, hydropower, ocean energy and small hydropower.
These terms were added in response to the 2008 Farm Bill provisions that authorize these qualifying sources of renewable energy. The Agency is limiting the size of eligible hydropower projects to those that have a rated power of 30 megawatts or less. The Conference Managers Report to the 2008 Farm Bill specifically mentions allowing small hydroelectric systems to be eligible under the program. Per consultation with the U.S. Department of Energy, the Agency is defining small hydropower systems as having a rated power of 30 megawatts or less, which includes hydropower projects commonly referred to as “micro-hydro” and “mini-hydro.” Thus, if the hydropower system has a rated power of more than 30 megawatts, it would not be eligible for this program.

•
Institution of higher education, instrumentality, and public power entity.
These terms were added because they are three of the eligible entities for energy audit and renewable energy development assistance grants.

•
Rated power.
This term was added to clarify the definitions in which it is used.

•
Renewable biomass.
This term was added as a result of the 2008 Farm Bill.

•
Renewable energy development assistance, renewable energy site assessment, and renewable energy technical assistance.
These terms were added to implement the Energy Audit and Renewable Energy Development Assistance grants.

•
Rural Energy for America Grant Agreement.
This term was added for clarity.

•
Simple payback.
This term was added to implement the scoring criterion for simple payback. It includes the method to be used to calculate simple payback.

Deleted Terms

•
Biomass.
This term has been replaced, under the 2008 Farm Bill, with “renewable biomass.”

•
Demonstrated financial need.
This term was deleted because it is no longer part of the program as found in the 2008 Farm Bill.

•
In-kind contribution, loan-to-value, and parity.
These terms were deleted because they are not used in the rule.

Revised Terms

•
Agency.
This term was updated to refer to the Rural Energy for America Program rather than the 9006 program.

•
Anaerobic digester project.
This term was revised in order to allow facilities producing natural gas in a compressed gaseous or liquid state to qualify as an anaerobic digester project.

•
Biogas.
This term was revised to refer to “renewable biomass” rather than to “biomass.”

•
Matching funds.
This term was revised to remove reference to direct loans.

•
Post-application.
This term was clarified.

•
Power purchase agreement.
This term was revised by replacing “arrangement” with “agreement.”

•
Renewable energy.
This term was revised to conform to changes in the 2008 Farm Bill, including adding reference to ocean and hydroelectric energy as renewable energy sources and replacing “biomass” with “renewable biomass.”

•
Rural or rural area.
This term was revised to conform to changes provided in the 2008 Farm Bill.

•
Small business.
In order for the Agency to clarify the application of the requirement that entities must operate independent of governmental control to certain Tribal enterprises, this term was revised to allow such enterprises to remain eligible if they are operated in a manner consistent to the Department of the Interior's regulation governing the establishment of Section 17 Corporations. This clarification is necessary to enable this program to be effectively administered in Indian Country.

•
State.
This term was clarified by adding “of the United States.”

Exception Authority (§ 4280.104)

This section was updated to reflect the latest language the Agency uses, as reflected in the recent Agency energy

title interim rules. First, the exercise of this exception authority must be in the Federal government's interest. Under the current rule, this reads in the USDA's interest. Second, the exercise of this exception authority must be concurred to by the Secretary of Agriculture.

Appeals (§ 4280.105)

This section was revised by removing reference to direct loans to conform to the 2008 Farm Bill and deleting the last sentence of the section because it is inappropriate.

Conflict of Interest (§ 4280.106)

This section was revised by removing reference to direct loans to conform to the 2008 Farm Bill and adding a provision specifically prohibiting members of, or delegates to, Congress from receiving any grant or portion thereof or from receiving any benefit that might arise therefrom and specifically addressing assistance to Agency employees and their relatives and associates. The Agency added this provision to provide greater transparency and accountability in government.

USDA Departmental Regulations (§ 4280.107)

This section was added to clearly identify the incorporation by reference of the Departmental Regulations.

Laws That Contain Other Compliance Requirements (§ 4280.108)

This section was relocated under the “General” heading of the rule because it applies to each REAP program, with minor exceptions. Two of the changes made were to remove reference to direct loans in the paragraph on civil rights compliance because direct loans are not part of the program and to add a paragraph specific to guaranteed loans concerning the Americans with Disabilities Act.

Ineligible Applicants, Borrowers, and Owners (§ 4280.109)

With minor wording changes to make it applicable to both grants and guaranteed loans, this section replaces existing 7 CFR 4280.107(a)(4).

General Applicant and Application Provisions (§ 4280.110)

With minor wording changes, this new section gathers into one place three general requirements affecting each REAP program concerning:

• Complete applications;

• Application withdrawal; and

• Satisfactory progress.

Notifications (§ 4280.111)

This new section gathers into one place general requirements affecting each REAP program regarding notification of applicants and lenders, as applicable, if applicants and their projects are eligible, if their application is determined to be ineligible, and if their application receives an award.

2. Renewable Energy System and Energy Efficiency Improvement Grant Program

Applicant Eligibility (§ 4280.112)

This section has been reduced to just identifying the type of applicant eligible (
i.e.,
agricultural producer or rural small business, which is unchanged from the current rule) because the other provisions have been either deleted or moved, as discussed below.

The citizenship requirements currently found in 7 CFR 4280.107(a)(2) and (3) have been removed (and, in their place, the rule requires the project to be located in a State as defined in the rule). The Agency removed this requirement because, after reviewing public comments that it sought and received on a March 12, 2010, Notice of Contract for Proposal (NOCP) for payments to advanced biofuels producers, the Agency has determined that it is in the best interests of furthering the Administration's goal of increasing the use of renewable energy systems and energy efficiency improvements to include applicants who are not U.S. citizens, provided the proposed project is located in a State and the applicant has a place of business located in a State. In addition, this change is consistent with recent litigation.

The provisions in existing 7 CFR 4280.107(a)(4) and in 7 CFR 4280.107(b), as noted earlier, have been relocated to §§ 4280.109 and 4280.110(c), respectively.

The demonstrated financial need provisions in existing 7 CFR 4280.107(a)(5) have been removed to conform the rule to the 2008 Farm Bill.

Project Eligibility (§ 4280.113)

Numerous changes have been made to this section for determining whether a project is eligible to receive an RES or EEI grant under this subpart.

First. The Agency clarified that energy efficiency improvements to existing renewable energy systems are eligible energy efficiency improvement projects.

Second. Projects must be located in a State, as defined in the rule, as discussed above under applicant eligibility.

Third. The applicant must have a place of business located in a State, also as discussed above under applicant eligibility.

Fourth. The Agency is allowing projects for facilities located in non-rural areas to be eligible if the project is being proposed by an agricultural producer.

This conforms the rule to other programs that serve agricultural producers (
e.g.,
those provided by the Natural Resource Conservation Service and Farm Service Agency), which do not have a rural area requirement for agricultural producers. Further, the authorizing statute (the 2008 Farm Bill) does not restrict eligibility of agricultural producers to rural areas as it does with rural small businesses, where the language specifically uses the term “rural” in referring to small businesses. The Agency does not expect the inclusion of projects for facilities located in non-rural areas proposed by agricultural producers to affect a large number of agricultural producers because most agricultural producers' facilities are located within rural areas.

However, in allowing projects by agricultural producers for facilities in non-rural areas to be eligible, the Agency is also requiring that the application for such facilities be only for renewable energy systems or energy efficiency improvements on integral components of or that are directly related to the facility, such as vertically integrated operations, and are part of and co-located with the agricultural production operation. For example, if an agricultural producer grows vegetables in a greenhouse located in a non-rural area and sells those vegetables at a co-located retail operation, where both the greenhouse and the retail operation are owned by the applicant, the application may consider both the greenhouse and the retail operation. However, if the retail operation is not co-located with the greenhouse, in this example, the application may consider only the greenhouse and not the retail operation.

Fifth. If the project is for a hydropower project, only those hydropower projects with a rated power of 30 megawatts or less are eligible.

Sixth. The project must have demonstrated technical feasibility.

Seventh. The Agency revised the provision associated with residential costs to clarify the current regulation and how residential purposes relate to the eligibility of projects under REAP. The Agency notes that this provision, found in § 4280.113(k), does not preclude an applicant from applying for funding for the installation of a second meter or providing certification in the application that any excess power generated by the renewable energy

system will be sold to the grid and will not be used by the applicant for residential purposes.

Qualification for Simplified Applications (§ 4280.114)

The provisions of this section were modified by removing the certification by the applicant of demonstrated financial need.

RES and EEI Grant Funding (§ 4280.115)

Several changes were made to this section as described below.

• The prohibition on third-party, in-kind contributions was removed because it conflicts with the Agency's Departmental Regulations.

• The Agency added a provision specifically addressing energy efficiency improvements as eligible project costs (see § 4280.115(c)(10)). In the current rule, eligible energy efficiency improvement costs were included in the paragraph addressing construction of new EEI projects (see 7 CFR 4280.110(c)(9)). This is somewhat confusing. The new provision clearly states that energy efficiency improvements as eligible project costs are limited to only improvements identified in the energy assessment or energy audit. This is similar to the current text found in 7 CFR 4280.110(c)(9). The new paragraph also covers explicitly how the Agency will address the replacement of equipment identified in the energy audit as an eligible project cost. To illustrate this, an example is provided in the rule.

• The provisions associated with determining the amount of a RES or EEI grant were updated to reflect the 2008 Farm Bill (see § 4280.115(g)(4) through (g)(6)), which resulted in two substantive changes. The first is adding consideration of the expected energy efficiency of the renewable energy system. The second is deleting consideration of the extent to which the renewable energy system will be replicable.

• Unless otherwise agreed to by the Agency, any renewable energy system or energy efficiency improvement grant agreement under this subpart will terminate 2 years from the date the Agency signs the agreement.

Application and Documentation (§ 4280.116)

The primary change to this section was to include a new paragraph (a) that addresses general application requirements covering one funding type applications, environmental information, foreign technology, and commercial application demonstration of pre-commercial technology.

With regard to application content, the two primary changes made were to remove the requirement to include intergovernmental consultation comments (such consultation is not required for this program) and the requirement to certify to and provide sufficient information or documentation for determination of demonstrated financial need.

Evaluation of RES and EEI Grant Applications (§ 4280.117)

Several changes were made to this section as described below.

First. The paragraphs concerning ineligible applications and incomplete applications were relocated to the General section of the rule.

Second. Scoring for flexible fuel pumps was added to the first scoring criterion (see § 4280.117(c)(1)(iv)).

Third. The return on investment criterion was replaced with a simple payback criterion to more accurately reflect the actual scoring the Agency performs.

Fourth. A new scoring criterion was added that allows State Directors and the Administrator to award up to 10 priority points if the application is for an under-represented technology, is for flexible fuel pumps, or would help achieve geographic diversity.

Insurance Requirements (§ 4280.118)

No changes were made to this set of provisions.

Construction Planning and Performing Development (§ 4280.119)

One change was made to this set of provisions in § 4280.119(f)(3) where the Agency revised the text associated with an outdated American Institute of Architects form (
i.e.,
Form A191).

RES and EEI Grantee Requirements (§ 4280.120)

Three primary changes were made to this section as described below.

First. The requirement that grants must also abide by “any other applicable Federal statutes or regulations” was added.

Second. A statement that the failure to follow the requirements contained in the grant agreement, the subpart, and other applicable Federal statutes and regulations may result in termination of the grant and adoption of other available remedies was added.

Third. The requirement for the applicant to provide, where applicable, a copy of the executed power purchase agreement was added.

Servicing Grants (§ 4280.121)

The two changes to this section are:

• Adding reference to the Departmental Regulations when servicing RES and EEI grants; and

• Adding provisions for when a grantee seeks to change a contractor or vendor.

3. Renewable Energy System and Energy Efficiency Improvement Guaranteed Loans

Borrower and Project Eligibility (§§ 4280.122 and 4280.123)

Changes made to these sections reflect the same changes made to applicant and project eligibility for RES and EEI grants, as discussed above.

Guaranteed Loan Funding (§ 4280.124)

Several changes were made to this section:

• The maximum amount of the loan that will be made available to an eligible project was increased from 50 to 75 percent of total eligible project costs;

• Both the maximum amount of a guaranteed loan and the total amount of loans guaranteed by the Agency under this program to any one borrower were increased from $10 million to $25 million;

• A 60 percent guarantee was added for loans greater than $10 million; and

• Revised the criteria associated with determining the amount of a loan awarded in the same manner as described earlier for RES and EEI grants.

Application and Documentation (§ 4280.128)

As was done for grant application and documentation, the requirement to include intergovernmental consultation comments was removed (such consultation is not required for this program).

Evaluation of RES and EEI Guaranteed Loan Applications (§ 4280.129)

As was done for RES and EEI grants, the requirements associated with ineligible applications and incomplete applications were relocated under the “General” heading of the rule. A minor edit was made to paragraph (a) and cross-references were updated. No other changes were made to this section.

Conditions Precedent to Issuance of Loan Note Guarantee (§ 4280.146)

The one substantive change to this section was the addition of the requirement for the lender to provide, where applicable, a copy of the executed power purchase agreement.

Laws That Contain Other Compliance Requirements (§ 4280.151)

This section is now “Reserved,” and the provisions regarding laws that

contain other compliance requirements have been incorporated into a similar section in the General Provisions portion of the interim rule.

Other Sections

Other than minor edits and updating cross references where applicable, no changes were made to the following guaranteed loan sections:

• Interest rates (§ 4280.125).

• Terms of loan (§ 4280.126).

• Guarantee/annual renewal fee percentage (§ 4280.127).

• Eligible lenders (§ 4280.130).

• Lender's functions and responsibilities (§ 4280.131).

• Access to records (§ 4280.132).

• Conditions of guarantee (§ 4280.133).

• Sale or assignment of guaranteed loan (§ 4280.134).

• Participation (§ 4280.135).

• Minimum retention (§ 4280.136).

• Repurchase from holder (§ 4280.137).

• Replacement of document (§ 4280.138).

• Credit quality (§ 4280.139).

• Financial statements (§ 4280.140).

• Appraisals (§ 4280.141).

• Personal and corporate guarantees (§ 4280.142).

• Loan approval and obligation of funds (§ 4280.143).

• Transfer of lenders (§ 4280.144).

• Changes in borrower (§ 4280.145).

• Issuance of the guarantee (§ 4280.147).

• Refusal to execute Loan Note Guarantee (§ 4280.148).

• Requirements after project construction (§ 4280.149).

• Insurance requirements (§ 4280.150).

• Servicing guaranteed loans (§ 4280.152).

• Substitution of lender (§ 4280.153).

• Default by borrower (§ 4280.154).

• Protective advances (§ 4280.155).

• Liquidation (§ 4280.156).

• Determination of loss and payment (§ 4280.157).

• Future recovery (§ 4280.158).

• Bankruptcy (§ 4280.159).

• Termination of guarantee (§ 4280.160).

4. Combined Funding

Other than updating cross-references, the only other change to this section was deleting the third-party, in-kind contribution prohibition as was done for RES and EEI grants.

5. Renewable Energy System Feasibility Study Grants

The provisions contained in the Fiscal Year 2010 notice for RES feasibility study grants that were specific to RES feasibility study grants are organized in the interim rule as shown in the following table. Other provisions in the Fiscal Year 2010 notice for RES feasibility study grants that are applicable to the other REAP programs are incorporated into the General provisions section of the interim rule.

Section name
Section number

Applicant eligibility
4280.170

Project eligibility
4280.171

Application eligibility provisions
4280.172

Grant funding for feasibility studies
4280.173

Feasibility study grant applications—content
4280.176

Evaluation of feasibility study grant applications
4280.177

Scoring feasibility study grant applications
4280.178

Selecting feasibility study grant applications for award
4280.179

Actions prior to grant closing
4280.180

Awarding and administering feasibility study grants
4280.181

Servicing feasibility study grants
4280.182

With a limited number of exceptions, the provisions found in the Fiscal Year 2010 notice for RES feasibility study grants have been incorporated into the interim rule. These exceptions are presented below.

Project eligibility (§ 4280.171).
Three conforming changes were made to the requirements for project eligibility.

First. The project for which the RES feasibility study is to be performed must be located in a State. This is a conforming change necessitated by removing the citizenship requirement (which was incorporated by reference in the Fiscal Year 2010 Notice).

Second. The applicant must have a place of business in a State. This is also a conforming change necessitated by removing the citizenship requirement (which was incorporated by reference in the Fiscal Year 2010 notice).

Third. A RES feasibility study may be performed for a proposed RES project for a facility that is located in a non-rural area if the applicant is an agricultural producer. If the agricultural producer's facility is in a non-rural area, then the feasibility study can be for a renewable energy system on integral components of or directly related to the facility, such as vertically integrated operations, and are part of and co-located with the agriculture production operation. For example, if an agricultural producer grows vegetables in a greenhouse located in a non-rural area and sells those vegetables at a co-located retail operation, where both the greenhouse and the retail operation are owned by the applicant, the feasibility study may consider both the greenhouse and the retail operation. If the retail operation is not co-located with the greenhouse, in this example, the feasibility study could only consider the greenhouse and not the retail operation. Under the Fiscal Year 2010 notice, all projects were required to be in a rural area.

Forms and certifications (§ 4280.176).
Two additional forms are identified for submittal with the application—Forms SF-424A and SF-424B. These forms are applicable for non-construction projects.

The certification that the renewable energy system is located in a rural area is limited to rural small businesses, because, under the interim rule, the rural area location requirement does not apply to projects from agricultural producers.

Evaluation of feasibility study grant applications (§ 4280.177).
The sentence referring to the Agency continuing to process an application if the application contains certification that the applicant has neither sought nor received any other Federal or State assistance for a RES feasibility study on the subject facility was not included in the interim rule, because there are other reasons why the Agency may not continue processing an application.

Scoring feasibility study grant applications (§ 4280.178).
Reference to “Other Federal or State assistance for only the RES feasibility study would make the request ineligible” under the scoring criterion for commitment of funds was not included in the interim rule because it is incorrect.

Awarding and administering feasibility study grants (§ 4280.181).
The interim rule clarifies when which forms are to be submitted.

Servicing (§ 4280.182).
The sentence “All non-confidential information resulting from the Grantee's activities shall be made available to the general public on an equal basis” is not included in the interim rule because it is not appropriate.

Intergovernmental review comments.
This provision was not included in the interim rule because it is not applicable to this program.

Exception Authority.
The exception authority provision in the Fiscal Year 2010 notice is replaced in the interim rule with a different exception authority provision that is a more recent provision and that is applicable across the entire subpart.

Appeals.
The appeals provision in the Fiscal Year 2010 notice is replaced in the interim rule with a different appeals

provision that is applicable across the entire subpart.

6. Energy Audit and Renewable Energy Development Assistance Grants

As was done for RES feasibility study grants, the provisions contained in the Fiscal Year 2010 notice for EA and REDA grants that are specific to EA and REDA grants are organized in the interim rule as shown in the following table. Other provisions in the Fiscal Year 2010 notice for EA and REDA grants that are applicable to the other REAP programs are incorporated into the General provisions section of the interim rule.

Section name
Section number

Applicant eligibility
4280.186

Project eligibility
4280.187

Grant funding for energy audit and renewable energy development assistance
4280.188

EA/REDA grant applications—content
4280.190

Evaluation of energy audit and renewable energy development assistance grant applications
4280.191

Scoring energy audit and renewable energy development assistance grant applications
4280.192

Selecting energy audit and renewable energy development assistance grant applications for award
4280.193

Actions prior to grant closing
4280.194

Awarding and administering energy audit and renewable energy development assistance grants
4280.195

Servicing energy audit and renewable energy development assistance grants
4280.196

With a limited number of exceptions, the provisions found in the Fiscal Year 2010 notice for EA and REDA grants have been incorporated into the interim rule. These exceptions are presented below.

Applicant eligibility (§ 4280.186).
The citizenship requirement found in the Fiscal Year 2010 notice is not included in the interim rule.

Project eligibility (§ 4280.187).
In response to the removal of the citizenship requirement, the interim rule requires that the energy audit or renewable energy development assistance must be provided to a recipient in a State and the applicant must have a place of business in a State.

Another change is that the rural area requirement in the interim rule is not applicable to agricultural producers (as it was in the Fiscal Year 2010 notice). Instead, a facility owned by an agricultural producer for which an energy audit is being conducted or that is receiving renewable energy development assistance may be located in either a rural area or non-rural area. If the agricultural producer's facility is in a non-rural area, then the energy audit or renewable energy development assistance can be for a renewable energy system or energy efficiency improvement on integral components of or that are directly related to the facility, such as vertically integrated operations, and are part of and co-located with the agriculture production operation.

Grant funding for energy audit and renewable energy development assistance (§ 4280.188).
Under the provisions for eligible project costs, the interim rule does not include “pay for assistance to any private business enterprise which does not meet the requirements of paragraph III.A(2) of this Notice” because the referenced paragraph in the Fiscal Year 2010 notice refers to meeting the citizenship requirement, which has been not been included in the interim rule, thus making this provision not applicable to the interim rule.

Application contents (§ 4280.190).
The requirement to submit intergovernmental review comments was not included in the interim rule because intergovernmental review is not required for this program. In addition, the Agency removed the phrasing “(in addition to the required 25 percent contribution from the agricultural producer or rural small business for the cost of an energy audit)” from the title of the “leveraging and commitment of other sources of funding” scoring criterion because the Agency determined that it was confusing.

Scoring energy audit and renewable energy development assistance grant applications (§ 4280.192).
The interim rule replaces “existing rural service area” with “existing service area.”

Selecting energy audit and renewable energy development grant assistance applications for award (§ 4280.193).
The interim rule does not include the Fiscal Year 2010 provision concerning objections raised by State or local governments during the intergovernmental review process, because the intergovernmental review process is not applicable to this program. Thus, this provision is not appropriate.

Awarding and administering energy audit and renewable energy development assistance grants (§ 4280.195).
The text concerning forms was revised to clarify which forms are to be submitted to the Agency and to remove reference to the grant being considered closed on the obligation date, because that is incorrect and is not needed in the rule.

Servicing (§ 4280.196).
In the requirements for performance reports, the phrase “final semiannual performance report” was revised to “final performance report” for clarity. In addition, the Agency recast the paragraph on the use of remaining funds to use the same phrasing as found in the deobligation provisions for RES feasibility study grants.

Intergovernmental review comments.
This provision was not included in the interim rule because it is not applicable to this program.

Exception Authority.
The exception authority provision in the Fiscal Year 2010 notice is replaced in the interim rule with a different exception authority provision that is a more recent provision and that is applicable across the entire subpart.

Appeals.
The appeals provision in the Fiscal Year 2010 notice is replaced in the interim rule with a different appeals provision that is applicable across the entire subpart.

III. Request for Comments

The Agency is interested in receiving comments on all aspects of the interim rule. An area in which the Agency is seeking specific comments is identified below. All comments should be submitted as indicated in the
ADDRESSES
section of this preamble.

Demonstrated financial need.
The Agency is seeking comment on whether to require demonstrated financial need for applicants seeking grants and, if so, what should the requirements be for such demonstration (
i.e.,
how would an applicant demonstrate financial need). Please be specific and provide rationale to support your position.

List of Subjects in 7 CFR Part 4280

Loan programs—Business and industry, Economic development, Energy, Energy audits, Energy efficiency improvements, Feasibility studies, Grant programs, Guaranteed loan programs, Renewable energy development assistance, Renewable energy systems, and Rural areas.

For the reasons set forth in the preamble, Chapter XLII of title 7 of the Code of Federal Regulations is amended as follows:

CHAPTER XLII—RURAL BUSINESS-COOPERATIVE SERVICE AND RURAL UTILITIES SERVICE, DEPARTMENT OF AGRICULTURE

PART 4280—LOANS AND GRANTS

1. The authority citation for part 4280 is revised to read as follows:

Authority:

5 U.S.C. 301; 7 U.S.C. 940c; 7 U.S.C. 8107.

2. Subpart B of part 4280 is revised to read as follows:

Subpart B—Rural Energy for America Program General

Sec.
4280.101
Purpose.
4280.102
Organization of subpart.
4280.103
Definitions.
4280.104
Exception authority.
4280.105
Appeals.
4280.106
Conflict of interest.
4280.107
USDA Departmental Regulations.
4280.108
Laws that contain other compliance requirements.
4280.109
Ineligible applicants, borrowers, and owners.
4280.110
General applicant and application provisions.
4280.111
Notifications.
Renewable Energy System and Energy Efficiency Improvement Grants

4280.112
Applicant eligibility.
4280.113
Project eligibility.
4280.114
Qualification for simplified applications.
4280.115
RES and EEI grant funding.
4280.116
Application and documentation.
4280.117
Evaluation of RES and EEI grant applications.
4280.118
Insurance requirements.
4280.119
Construction planning and performing development.
4280.120
RES and EEI grantee requirements.
4280.121
Servicing grants.
Renewable Energy System and Energy Efficiency Improvement Guaranteed Loans

4280.122
Borrower eligibility.
4280.123
Project eligibility.
4280.124
Guaranteed loan funding.
4280.125
Interest rates.
4280.126
Terms of loan.
4280.127
Guarantee/annual renewal fee percentages.
4280.128
Application and documentation.
4280.129
Evaluation of RES and EEI guaranteed loan applications.
4280.130
Eligible lenders.
4280.131
Lender's functions and responsibilities.
4280.132
Access to records.
4280.133
Conditions of guarantee.
4280.134
Sale or assignment of guaranteed loan.
4280.135
Participation.
4280.136
Minimum retention.
4280.137
Repurchase from holder.
4280.138
Replacement of document.
4280.139
Credit quality.
4280.140
Financial statements.
4280.141
Appraisals.
4280.142
Personal and corporate guarantees.
4280.143
Loan approval and obligation of funds.
4280.144
Transfer of lenders.
4280.145
Changes in borrower.
4280.146
Conditions precedent to issuance of Loan Note Guarantee.
4280.147
Issuance of the guarantee.
4280.148
Refusal to execute Loan Note Guarantee.
4280.149
Requirements after project construction.
4280.150
Insurance requirements.
4280.151
[Reserved]
4280.152
Servicing guaranteed loans.
4280.153
Substitution of lender.
4280.154
Default by borrower.
4280.155
Protective advances.
4280.156
Liquidation.
4280.157
Determination of loss and payment.
4280.158
Future recovery.
4280.159
Bankruptcy.
4280.160
Termination of guarantee.
4280.161-4280.164
[Reserved]
Combined Funding for Renewable Energy Systems and Energy Efficiency Improvements

4280.165
Combined funding for renewable energy systems and energy efficiency improvements.
4280.166-4280.169
[Reserved]
Renewable Energy System Feasibility Study Grants

4280.170
Applicant eligibility.
4280.171
Project eligibility.
4280.172
Application eligibility provisions.
4280.173
Grant funding for feasibility studies.
4280.174-4280.175
[Reserved]
4280.176
Feasibility study grant applications—Content.
4280.177
Evaluation of feasibility study grant applications.
4280.178
Scoring feasibility study grant applications.
4280.179
Selecting feasibility study grant applications for award.
4280.180
Actions prior to grant closing.
4280.181
Awarding and administering feasibility study grants.
4280.182
Servicing feasibility study grants.
4280.183-4280.185
[Reserved]
Energy Audit and Renewable Energy Development Assistance Grants

4280.186
Applicant eligibility.
4280.187
Project eligibility.
4280.188
Grant funding for energy audit and renewable energy development assistance.
4280.189
[Reserved]
4280.190
EA/REDA grant applications—Content.
4280.191
Evaluation of energy audit and renewable energy development assistance grant applications.
4280.192
Scoring energy audit and renewable energy development assistance grant applications.
4280.193
Selecting energy audit and renewable energy development assistance grant applications for award.
4280.194
Actions prior to grant closing.
4280.195
Awarding and administering energy audit and renewable energy development assistance grants.
4280.196
Servicing energy audit and renewable energy development assistance grants.
4280.197-4280.199
[Reserved]
4280.200
OMB control numbers.

Appendix A to Subpart B of Part 4280—Technical Reports for Projects with Total Eligible Project Costs of $200,000 or Less

Appendix B to Subpart B of Part 4280—Technical Reports for Projects with Total Eligible Project Costs of Greater than $200,000

Appendix C to Subpart B of Part 4280—Technical Report for Hydropower Projects

Appendix D to Subpart B of Part 4280—Technical Report for Flexible Fuel Pumps

Appendix E to Subpart B of Part 4280—Feasibility Study Content

Subpart B—Rural Energy for America Program

General

§ 4280.101
Purpose.
This subpart contains the procedures and requirements for providing the following financial assistance under the Rural Energy for America Program:

(a) Grants or guaranteed loans, or a combination grant and guaranteed loan, for the purpose of purchasing and installing renewable energy systems and energy efficiency improvements in rural areas;

(b) Grants for conducting renewable energy system feasibility studies; and

(c) Grants to assist agricultural producers and rural small businesses by conducting energy audits and providing recommendations and information on renewable energy development assistance and improving energy efficiency.

§ 4280.102
Organization of subpart.
(a) Sections 4280.103 through 4280.111 discuss definitions, exception authority, appeals, conflict of interest, USDA Departmental regulations, other applicable laws, ineligible applicants, borrowers, and owners, general applicant and application provisions, and notifications, which are applicable to all of the funding programs under this subpart.

(b) Sections 4280.112 through 4280.121 discuss the requirements specific to renewable energy system and energy efficiency improvement grants. Sections 4280.112 and 4280.113 discuss, respectively, applicant and project eligibility. Section 4280.114 discusses the circumstances under which an applicant may qualify to submit a simplified application for a grant. Sections 4280.115 through 4280.118 address grant funding, grant application content and required documentation, the evaluation process, and insurance requirements. Sections 4280.119 through 4280.121 address project planning, development, and completion, grantee requirements, and grant servicing.

(c) Sections 4280.122 through 4280.160 discuss the requirements

specific to renewable energy system and energy efficiency improvement guaranteed loans. Sections 4280.122 through 4280.127 discuss eligibility and requirements for making and processing loans guaranteed by the Agency. Section 4280.128 addresses the application and documentation requirements, separating the requirements for loans over $600,000 and for loans of $600,000 or less. Section 4280.129 addresses the evaluation of guaranteed loan applications. Sections 4280.130 through 4280.160 provide guaranteed loan origination and servicing requirements. These requirements apply to lenders, holders, and other parties involved in making, guaranteeing, holding, servicing, or liquidating such loans.

(d) Section 4280.165 presents the process by which the Agency will make combined loan guarantee and grant funding available for renewable energy system and energy efficiency improvement projects.

(e) Sections 4280.170 through 4280.182 presents the process by which the Agency will make renewable energy system feasibility study grant funding available. These sections cover applicant, project, and application eligibility; grant funding; application content, evaluation, scoring, and selection for award; and grant award, administration, and servicing.

(f) Sections 4280.186 through 4280.196 present the process by which the Agency will make energy audit and renewable energy development assistance grant funding available. These sections cover applicant and project eligibility; grant funding; application content, evaluation, scoring, and selection for award; and grant award, administration, and servicing.

(g) Appendices A through D of this subpart cover technical report requirements. Appendix A applies to projects with total eligible project costs of $200,000 or less; Appendix B applies projects with total eligible project costs greater than $200,000; Appendix C applies to hydropower projects; and Appendix D applies to flexible fuel pumps. Appendix E identifies the contents of the feasibility study that will be required to be submitted to the Agency if funding is provided under §§ 4280.170 through 4280.182.

§ 4280.103
Definitions.
Terms used in this subpart are defined in either § 4279.2 of this chapter or in this section. If a term is defined in both § 4279.2 and this section, it will have, for purposes of this subpart only, the meaning given in this section.

Administrator.
The Administrator of the Rural Business-Cooperative Service within the Rural Development Mission Area of the U.S. Department of Agriculture.

Agency.
The Rural Business-Cooperative Service or successor Agency assigned by the Secretary of Agriculture to administer the Rural Energy for America Program. References to the National Office, Finance Office, State Office, or other Agency offices or officials should be read as prefaced by “Agency” or “Rural Development” as applicable.

Agricultural producer.
An individual or entity directly engaged in the production of agricultural products, including crops (including farming); livestock (including ranching); forestry products; hydroponics; nursery stock; or aquaculture, whereby 50 percent or greater of their gross income is derived from the operations.

Anaerobic digester project.
A renewable energy system that uses animal waste and other organic substrates, via anaerobic digestion, to produce biomethane that is used to produce thermal or electrical energy or converted to a compressed gaseous or liquid state.

Annual receipts.
The total income or gross income (sole proprietorship) plus cost of goods sold.

Applicant.
The agricultural producer or rural small business that is seeking a grant, guaranteed loan, or a combination of a grant and loan, under this subpart.

Assignment Guarantee Agreement (Form RD 4279-6) or successor form.
A signed agreement between the Agency, the lender, and the holder containing the terms and conditions of an assignment of a guaranteed portion of a loan.

Bioenergy project.
A renewable energy system that produces fuel, thermal energy, or electric power from a biomass source, other than an anaerobic digester project.

Biogas.
Renewable biomass converted to gaseous fuels.

Blended liquid transportation fuel.
A fuel used for transportation that:

(1) Is composed of one or more fuel types, at least one of which must meet the Renewable Fuel Standard, and

(2) Results in a blended fuel that exceeds the highest requirement for the percentage volume for a renewable fuel.

Borrower.
Any party or parties liable for a guaranteed loan made under this subpart except guarantors.

Capacity.
The maximum load that an apparatus or heating unit is able to meet on a sustained basis as rated by the manufacturer.

Commercially available.
A system that has a proven operating history specific to the proposed application. Such a system is based on established design, and installation procedures and practices. Professional service providers, trades, large construction equipment providers, and labor are familiar with installation procedures and practices. Proprietary and balance of system equipment and spare parts are readily available. Service is readily available to properly maintain and operate the system. An established warranty exists for parts, labor, and performance.

Conditional Commitment (Form RD 4279-3) or successor form.
Agency notice to the lender that the loan guarantee is approved subject to the completion of all conditions and requirements set forth by the Agency.

Default.
The condition where a borrower or grantee is not in compliance with one or more loan covenants or grant conditions as stipulated in the Letter of Conditions, Conditional Commitment, or loan or grant agreement.

Departmental regulations.
The regulations of the Department of Agriculture's Office of Chief Financial Officer (or successor office) as codified in 2 CFR part 417 and 7 CFR parts 3000 through 3099, including, but not necessarily limited to, 7 CFR parts 3015 through 3019, 7 CFR part 3021, and 7 CFR part 3052.

Design/build method.
A method of project development whereby all design, engineering, procurement, construction, and other related project activities are performed under a single contract. The prime contractor is solely responsible and accountable for successful delivery of the project to the owner.

Eligible project costs.
The total project costs that are eligible to be paid with program funds.

Energy assessment.
A report conducted by an experienced energy assessor, certified energy manager or professional engineer assessing energy cost and efficiency by analyzing energy bills and briefly surveying the target building, machinery, or system. The report identifies and provides a savings and cost analysis of low-cost/no-cost measures. The report will estimate the overall costs and expected energy savings from these improvements, and dollars saved per year. The report will estimate weighted-average payback period in years.

Energy assessor.
An individual or entity that conducts an energy assessment.

Energy audit.
An audit conducted by a certified energy manager or professional engineer that focuses on potential capital-intensive projects and involves detailed gathering of field data

and engineering analysis. The audit will provide detailed project costs and savings information with a high level of confidence sufficient for major capital investment decisions.

Energy auditor.
An individual or entity that conducts an energy audit.

Energy efficiency improvement (EEI).
Improvements to a facility, building, or process that reduce energy consumption, or reduce energy consumed per square foot.

Existing business.
A business that has completed at least one full business cycle.

Fair market value of equity in real property.
Fair market value of real property, as established by an appraisal, less the outstanding balance of any mortgages, liens, or encumbrances.

Feasibility study.
An analysis of the economic, market, technical, financial, and management feasibility of a proposed project or business.

Financial feasibility.
The ability of a project or business to achieve the income, credit, and cash flows to financially sustain a project over the long term. The concept of financial feasibility includes assessments of the cost-accounting system, the availability of short-term credit for seasonal businesses, and the adequacy of raw materials and supplies.

Flexible fuel pump.
A retail pump that combines and dispenses a blended liquid transportation fuel or dispenses a blended liquid transportation fuel. If a flexible fuel pump dispenses more than one blend of liquid transportation fuel, at least one of the blends must meet the definition of blended liquid transportation fuel found in this section.

Geothermal, direct use.
A system that uses thermal energy directly from a geothermal source.

Geothermal, electric generation.
A system that uses geothermal energy to produce high pressure steam for electric power production.

Holder.
A person or entity, other than the lender, who owns all or part of the guaranteed portion of the loan with no servicing responsibilities. When the single note option is used and the lender assigns a part of the guaranteed note to an assignee, the assignee becomes a holder only when the Agency receives notice and the transaction is completed through the use of Form RD 4279-6.

Hydroelectric energy.
Energy created from various hydroelectric sources including, but not limited to, diverted run-of-river water, in-stream run-of-river water, and in-conduit water.

Hydrogen project.
A renewable energy system that produces hydrogen or, a renewable energy system that uses mechanical or electric power or thermal energy from a renewable resource using hydrogen as an energy transport medium.

Hydropower.
Energy created by hydroelectric or ocean energy.

Institution of higher education.
As defined in 20 U.S.C. 1002(a).

Instrumentality.
An organization recognized, established, and controlled by a State, tribal, or local government, for a public purpose or to carry out special purposes.

Interconnection agreement.
The terms and conditions governing the interconnection and parallel operation of the grantee's or borrower's electric generation equipment and the utility's electric power system.

Interim financing.
A temporary or short-term loan made with the clear intent that it will be repaid through another loan, cash, or other financing mechanism. Interim financing is frequently used to pay construction and other costs associated with a planned project, with permanent financing to be obtained after project completion.

Large solar, electric.
Large solar electric systems are those for which the rated power of the system is larger than 10 kilowatts (kW). Large solar electric systems are either stand-alone (off grid) or interconnected to the grid (on grid).

Large solar, thermal.
Large solar thermal systems are those for which the rated storage volume of the system is greater than 240 gallons or that have a collector area of more than 1,000 square feet.

Large wind system.
A wind energy project for which the rated power of the individual wind turbine(s) is larger than 100kW.

Lender.
The organization making, servicing, and collecting the loan that is guaranteed under the provisions of this subpart.

Lender's Agreement (Form RD 4279-4) or successor form.
Agreement between the Agency and the lender setting forth the lender's loan responsibilities.

Loan Note Guarantee (Form RD 4279-5) or successor form.
Instrument issued and executed by the Agency containing the terms and conditions of the guarantee.

Matching funds.
The funds needed to pay for the portion of the eligible project costs not funded or guaranteed by the Agency through a grant or guaranteed loan under this program. Unless authorized by statute, other Federal grant funds cannot be used to meet a matching funds requirement.

Necessary capital improvement.
A capital improvement required to keep an existing system in compliance with regulations or to maintain technical or operational feasibility.

Ocean energy.
Energy created by use of various types of moving water including, but not limited to, tidal, wave, current, and thermal changes.

Participation.
The sale of interest in a loan by the lender wherein the lender retains the note, collateral securing the note, and all responsibility for loan servicing and liquidation.

Passive investor.
An equity investor that does not actively participate in management and operation decisions of the business entity as evidenced by a contractual arrangement.

Post-application.
The period of time after the Agency has received a complete application, which contains all parts necessary for the Agency to determine applicant and project eligibility, to score the application, and to conduct the technical evaluation.

Power purchase agreement.
The terms and conditions governing the sale and transportation of electricity produced by the grantee or borrower to another party.

Pre-commercial technology.
Technology that has emerged through the research and development process and has technical and economic potential for commercial application, but is not yet commercially available.

Promissory Note.
Evidence of debt. A note that a borrower signs promising to pay a specific amount of money at a stated time or on demand.

Public power entity.
Is defined using the definition of state utility as defined in section 217(A)(4) of the Federal Power Act (16 U.S.C. 824q(a)(4)). As of this writing, the definition “means a State or any political subdivision of a State, or any agency, authority, or instrumentality of any one or more of the foregoing, or a corporation that is wholly owned, directly or indirectly, by any one or more of the foregoing, competent to carry on the business of developing, transmitting, utilizing, or distributing power.”

Qualified consultant.
An entity possessing the knowledge, expertise, and experience to perform a specific task.

Qualified party.
An independent third party entity possessing the knowledge, expertise, and experience to perform in an efficient, effective, and authoritative manner the specific task required.

Rated power.
The maximum amount of energy that can be created at any given time.

Renewable biomass.

(1) Materials, pre-commercial thinnings, or invasive species from National Forest System land and public lands (as defined in section 103 of the

Federal Land Policy and Management Act of 1976 (43 U.S.C. 1702)) that:

(i) Are byproducts of preventive treatments that are removed to reduce hazardous fuels; to reduce or contain disease or insect infestation; or to restore ecosystem health;

(ii) Would not otherwise be used for higher-value products; and

(iii) Are harvested in accordance with applicable law and land management plans and the requirements for old-growth maintenance, restoration, and management direction of paragraphs (e)(2), (e)(3), and (e)(4) and large-tree retention of subsection (f) of section 102 of the Healthy Forests Restoration Act of 2003 (16 U.S.C. 6512); or

(2) Any organic matter that is available on a renewable or recurring basis from non-Federal land or land belonging to an Indian or Indian tribe that is held in trust by the United States or subject to a restriction against alienation imposed by the United States, including:

(i) Renewable plant material, including feed grains; other agricultural commodities; other plants and trees; and algae; and

(ii) Waste material, including crop residue; other vegetative waste material (including wood waste and wood residues); animal waste and byproducts (including fats, oils, greases, and manure); and food waste and yard waste.

Renewable energy.
Energy derived from:

(1) A wind, solar, renewable biomass, ocean (including tidal, wave, current, and thermal), geothermal or hydroelectric source; or

(2) Hydrogen derived from renewable biomass or water using wind, solar, ocean (including tidal, wave, current, and thermal), geothermal or hydroelectric energy sources.

Renewable Energy Development Assistance.
Assistance provided by eligible grantees to agricultural producers and rural small businesses to become more energy efficient and to use renewable energy technologies and resources. The renewable energy development assistance may consist of renewable energy site assessment and/or renewable energy technical assistance.

Renewable energy site assessment.
A report provided to an agricultural producer or rural small business providing recommendations and information regarding the use of renewable energy technologies in its operation. The report shall be prepared by a qualified consultant and evaluate a specific site or geographic area for potential use of one or more renewable energy technologies. Typically, the report will evaluate a potential renewable energy project with an estimated total cost of construction of less than $200,000. The evaluation shall be based on existing data, which may include data regarding existing and/or proposed structures, commercially available technologies, feed-stocks, and other renewable energy resources. The report will consider factors such as the site and the potential uses of renewable energy technology at the site. The report will not include information about any residential dwelling(s).

Renewable energy system (RES).
A system that produces or produces and delivers usable energy from a renewable energy source, or is a flexible fuel pump.

Renewable energy technical assistance.
Assistance provided to agricultural producers and rural small businesses on how to use renewable energy technologies and resources in their operations.

Rural or rural area.
Any area of a State not in a city or town that has a population of more than 50,000 inhabitants, according to the latest decennial census of the United States, or in the urbanized area contiguous and adjacent to a city or town that has a population of more than 50,000 inhabitants, and any area that has been determined to be “rural in character” by the Under Secretary for Rural Development, or as otherwise identified in this definition.

(1) An area that is attached to the urbanized area of a city or town with more than 50,000 inhabitants by a contiguous area of urbanized census blocks that is not more than 2 census blocks wide. Applicants from such an area should work with their Rural Development State Office to request a determination of whether their project is located in a rural area under this provision.

(2) For the purposes of this definition, cities and towns are incorporated population centers with definite boundaries, local self government, and legal powers set forth in a charter granted by the State.

(3) For the Commonwealth of Puerto Rico, the island is considered rural and eligible for Business Programs assistance, except for the San Juan Census Designated Place (CDP) and any other CDP with greater than 50,000 inhabitants. CDPs with greater than 50,000 inhabitants, other than the San Juan CDP, may be determined to be eligible if they are “not urban in character.”

(4) For the State of Hawaii, all areas within the State are considered rural and eligible for Business Programs assistance, except for the Honolulu CDP within the County of Honolulu.

(5) For the purpose of defining a rural area in the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands, the Agency shall determine what constitutes rural and rural area based on available population data.

(6) The determination that an area is “rural in character” will be made by the Under Secretary of Rural Development. The process to request a determination under this provision is outlined in paragraph (6)(ii) of this definition.

(i) The determination that an area is “rural in character” under this definition will apply to areas that are within:

(A) An urbanized area that has two points on its boundary that are at least 40 miles apart, which is not contiguous or adjacent to a city or town that has a population of greater than 150,000 inhabitants or the urbanized area of such a city or town; or

(B) An urbanized area contiguous and adjacent to a city or town of greater than 50,000 inhabitants that is within one-quarter mile of a rural area.

(ii) Units of local government may petition the Under Secretary of Rural Development for a “rural in character” designation by submitting a petition to both the appropriate Rural Development State Director and the Administrator on behalf of the Under Secretary. The petition shall document how the area meets the requirements of paragraph (6)(i)(A) or (B) of this definition and discuss why the petitioner believes the area is “rural in character,” including, but not limited to, the area's population density, demographics, and topography and how the local economy is tied to a rural economic base. Upon receiving a petition, the Under Secretary will consult with the applicable Governor or leader in a similar position and request comments to be submitted within 5 business days, unless such comments were submitted with the petition. The Under Secretary will release to the public a notice of a petition filed by a unit of local government not later than 30 days after receipt of the petition by way of publication in a local newspaper and posting on the Agency's Web site, and the Under Secretary will make a determination not less than 15 days, but no more than 60 days, after the release of the notice. Upon a negative determination, the Under Secretary will provide to the petitioner an opportunity to appeal a determination to the Under Secretary, and the petitioner will have 10 business days to appeal the determination and provide further information for consideration.

Rural Energy for America Program Grant Agreement (Form RD 4280-2) or successor form.
An agreement between the Agency and the grantee setting forth the provisions under which the grant will be administered.

Simple payback.
The estimated simple payback of a project funded under this subpart as calculated using paragraph (1), (2), or (3), as applicable, of this definition.

(1) For energy generation projects, simple payback is calculated as follows:

(i) Simple payback = (Total Project Costs (including REAP Grant))/(Average Net Income + Interest Expense + Depreciation Expense (for the project))

(ii) Average net income:

(A) Is based on all energy related revenue streams which include monetary benefits from Production Tax Credit (PTC), Renewable Energy Credit, Carbon Credits, revenue from byproducts produced by the energy system, fair market value of byproducts produced by and used in the project or related enterprises, and other incentives that can be annualized.

(B) Is based on income remaining after all project obligations are paid (operating and maintenance), except interest and depreciation as noted above.

(C) Is based on the Agency's review and acceptance of the project's typical year income (which is after the project is operating and stabilized) projections at the time of application submittal.

(D) Does not allow Investment Tax Credits, State tax incentives, or other one-time construction and investment related benefits that cannot be annualized to be included as income or reduce total eligible project costs.

(2) For energy replacement and energy efficiency improvement projects, simple payback is calculated as follows:

(i) Simple payback = (Total Project Costs (including REAP Grant))/Dollar Value of Energy Generated or Saved (as applicable)

(ii) Dollar value of energy generated or saved incorporates the following:

(A) All energy related revenue streams, which include monetary benefits from PTC, Renewable Energy Credit, Carbon Credits, revenue from byproducts produced by the energy system, and other monetary incentives that can be annualized.

(B) Energy saved or replaced shall be calculated on the quantity of energy saved or replaced (e.g., BTU) and converted to a monetary value using a constant value or price of energy as determined under paragraph (2)(ii)(B)(
3
) of this definition.

(
1
) The actual total quantity of energy used (BTU) in the original building and equipment in the 12 months prior to the RES or EEI project application.

(
2
) Projected energy usage after the RES or EEI project shall be the projected total quantity of energy used (BTU) on an annual basis for the same size or capacity as the original building or equipment. For energy efficiency improvement to equipment, if the new piece of equipment has a different capacity than the piece of equipment being replaced, the projected total quantity of energy used for the new piece of equipment shall be adjusted based on the ratio of the capacity of the replaced piece of equipment to the capacity of the new piece of equipment.

(
3
) Value or price of energy shall be the actual average price paid over the last year and used as a constant for all calculations of the value of energy.

(C) Does not allow energy efficiency improvements to monetize benefits other than the dollar amount of the energy savings the agricultural producer or rural small business realizes as a result of the improvement.

(D) Does not allow Investment Tax Credits, State tax incentives, or other one-time construction and investment related benefits that cannot be annualized to be included as income or reduce total project costs.

(3) For flexible fuel pumps, the calculation for simple payback is as follows:

(i) Simple payback = (Total Project Costs (including REAP Grant))/(Increase in Net Income + Interest Expense + Depreciation Expense (for the project))

(ii) Increase in income:

(A) Is based on all flexible fuel pump related net income (the projected increase in annual net income resulting by the installation of the project), which includes monetary benefits from Tax Credits and other credits or incentives that can be annualized.

(B) Is based on income remaining after all project obligations are paid (operating and maintenance), except interest and depreciation as noted above.

(C) Is based on the Agency's review and acceptance of the project's typical year income (which is after the project is operating and stabilized) projections at the time of application submittal.

(D) Does not allow State tax incentives or other one-time construction and investment related benefits that cannot be annualized to be included as income or reduce total eligible project costs.

Simplified application.
An application that conforms to the criteria and procedures specified in § 4280.114.

Small business.
An entity is considered a small business in accordance with the Small Business Administration's (SBA) small business size standards by the North American Industry Classification System (NAICS) found in 13 CFR part 121. A private entity, including a sole proprietorship, partnership, corporation, cooperative (including a cooperative qualified under section 501(c)(12) of the Internal Revenue Code), and an electric utility, including a Tribal or governmental electric utility, that provides service to rural consumers on a cost-of-service basis without support from public funds or subsidy from the Government authority establishing the district, provided such utilities meet SBA's definition of small business. These entities must operate independent of direct Government control except for Tribal business entities formed as Section 17 Corporations as determined by the Secretary of the Interior or other Tribal business entities that have similar structures and relationships with their Tribal governments as determined by the Agency. The Agency shall determine the small business status of such a Tribal entity without regard to the resources of the Tribal government. With the exception of the entities described above, all other non-profit entities are excluded.

Small hydropower.
A hydropower project for which the rated power of the system is 30 megawatts or less.

Small solar, electric.
Small solar electric projects are those for which the rated power of the system is 10kW or smaller. Small solar electric projects are either stand-alone (off grid) or interconnected to the grid at less than 600 volts (on grid).

Small solar, thermal.
Small solar thermal projects are those for which the rated storage volume of the system is 240 gallons or smaller or that have a collector area of 1,000 square feet or less.

Small wind system.
Wind energy system for which the rated power of the wind turbine is 100kW or smaller and with a generator hub height of 120 feet or less. A small wind system is either stand-alone or connected to the local electrical system at less than 600 volts.

Spreadsheet.
A table containing data from a series of financial statements of a business over a period of time. Financial statement analysis normally contains spreadsheets for balance sheets and income statements and may include cash flow statement data and commonly used ratios. The spreadsheets enable a reviewer to easily scan the data, spot trends, and make comparisons.

State.
Any of the 50 states of the United States, the Commonwealth of Puerto Rico, the District of Columbia,

the U.S. Virgin Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana Islands, the Republic of Palau, the Federated States of Micronesia, and the Republic of the Marshall Islands.

Total project costs.
The sum of all costs associated with a completed project.

Used equipment.
Any equipment that has been used in any previous application and is provided in an “as is” condition.

Very small business.
A business with fewer than 15 employees and less than $1 million in annual receipts.

§ 4280.104
Exception authority.
The Administrator may, with the concurrence of the Secretary of Agriculture, make an exception, on a case-by-case basis, to any requirement or provision of this subpart that is not inconsistent with any authorizing statute or applicable law, if the Administrator determines that application of the requirement or provision would adversely affect the Federal government's interest.

§ 4280.105
Appeals.
Only the grantee, borrower, lender, or holder can appeal an Agency decision made under this subpart. In cases where the Agency has denied or reduced the amount of final loss payment to the lender, the adverse decision may be appealed by the lender only. An adverse decision that only impacts the holder may be appealed by the holder only. A decision by a lender adverse to the interest of the borrower is not a decision by the Agency, whether or not concurred in by the Agency. An adverse decision regarding a grant application may be appealed by the applicant only. Appeals will be handled in accordance with 7 CFR part 11 of this title.

§ 4280.106
Conflict of interest.
(a) No conflict of interest or appearance of conflict of interest will be allowed. For purposes of this subpart, conflict of interest includes, but is not limited to, distribution or payment of grant and guaranteed loan funds or award of project contracts to an individual owner, partner, stockholder, or beneficiary of the applicant or borrower or a close relative of such an individual when such individual will retain any portion of the ownership of the applicant or borrower.

(b) No member of or delegate to Congress shall receive any share or part of this grant or any benefit that may arise there from; but this provision shall not be construed to bar as a contractor under the grant a publicly held corporation whose ownership might include a member of Congress.

§ 4280.107
USDA Departmental Regulations.
All projects funded under this subpart are subject to the provisions of the Departmental regulations (7 CFR subtitle A), as applicable.

§ 4280.108
Laws that contain other compliance requirements.

(a)
Equal employment opportunity.
For all construction contracts and grants in excess of $10,000, the contractor must comply with Executive Order 11246, as amended by Executive Order 11375, and as supplemented by applicable Department of Labor regulations (41 CFR part 60). The applicant or the lender and borrower, as applicable, is responsible for ensuring that the contractor complies with these requirements.

(b)
Equal opportunity and nondiscrimination.
The Agency will ensure that equal opportunity and nondiscrimination requirements are met in accordance with the Equal Credit Opportunity Act and 7 CFR part 15d, Nondiscrimination in Programs and Activities Conducted by USDA. The Agency will not discriminate against applicants on the basis of race, color, religion, national origin, sex, marital status, or age (provided that the applicant has the capacity to contract); the fact that all or part of the applicant's income derives from any public assistance program; or the fact that the applicant has in good faith exercised any right under the Consumer Credit Protection Act. Lenders will comply with the requirements of the Equal Credit Opportunity Act (see 12 CFR part 202). Such compliance will be accomplished prior to loan closing.

(c)
Civil rights compliance.
Recipients of grants must comply with the Americans with Disabilities Act of 1990, Title VI of the Civil Rights Act of 1964, and Section 504 of the Rehabilitation Act of 1973. This may include collection and maintenance of data on the race, sex, and national origin of the recipient's membership/ownership and employees. These data must be available to conduct compliance reviews in accordance with 7 CFR part 1901, subpart E, § 1901.204 of this title. Grants will require one subsequent compliance review after the last disbursement of grant funds has been made, and the facility has been in full operation for 90 days.

(d)
Americans with Disabilities Act (ADA).
Guaranteed loans that involve the construction of or addition to facilities that accommodate the public and commercial facilities, as defined by the ADA, must comply with the ADA. The lender and borrower are responsible for compliance.

(e)
Environmental analysis.
Subpart G of part 1940 of this title outlines environmental procedures and requirements for this subpart. Prospective applicants are advised to contact the Agency to determine environmental requirements as soon as practicable after they decide to pursue any form of financial assistance directly or indirectly available through the Agency.

(1) Any required environmental review must be completed by the Agency prior to the Agency obligating any funds.

(2) The applicant will be notified of all specific compliance requirements, including, but not limited to, the publication of public notices, and consultation with State Historic Preservation Offices and the U.S. Fish and Wildlife Service.

(3) A site visit by the Agency may be scheduled, if necessary, to determine the scope of the review.

(4) The applicant taking any actions or incurring any obligations during the time of application or application review and processing that would either limit the range of alternatives to be considered or that would have an adverse effect on the environment, such as the initiation of construction, will result in project ineligibility.

(f)
Executive Order 12898.
When a project is proposed and financial assistance requested, the Agency will conduct a Civil Rights Impact Analysis (CRIA) with regards to environmental justice. The CRIA must be conducted and the analysis documented utilizing Form RD 2006-38, “Civil Rights Impact Analysis Certification.” This certification must be done prior to loan approval, obligation of funds, or other commitments of Agency resources, including issuance of a Letter of Conditions or Form RD 4279-3, whichever occurs first.

(g)
Discrimination complaints.
The regulations contained in 7 CFR part 1901, subpart E of this title apply to this program, with the exception of guaranteed loans. Any person or any specific class of person, believing they have been subjected to discrimination may file a complaint within 180 days of an alleged act of discrimination or from the time discrimination is known, or should have been known, with the USDA Director, Office of Adjudication, Room 3326-W, Whitten Building, 1400 Independence Avenue, SW., Washington, DC 20250-9410.

§ 4280.109
Ineligible applicants, borrowers, and owners.
Applicants, borrowers, and owners will be ineligible to receive funds under this subpart as discussed in paragraphs (a) and (b) of this section.

(a) If an applicant, borrower, or owner has an outstanding judgment obtained by the U.S. in a Federal Court (other than in the United States Tax Court), is delinquent in the payment of Federal income taxes, or is delinquent on a Federal debt, the applicant is not eligible to receive a grant or guaranteed loan until the judgment is paid in full or otherwise satisfied or the delinquency is resolved.

(b) If an applicant or borrower is debarred from receiving Federal assistance, the applicant is not eligible to receive a grant or guaranteed loan under this subpart.

§ 4280.110
General applicant and application provisions.

(a)
Complete applications.
Applicants must submit complete applications in order to be considered. If an application is incomplete, the Agency will identify those parts of the application that are incomplete and provide a written explanation to the applicant for possible future resubmission. Upon receipt of a complete application by the appropriate Agency office and by the applicable application deadline, the Agency will complete its evaluation.

(b)
Application withdrawal.
During the period between the submission of an application and the execution of loan and/or grant award documents, the applicant must notify the Agency, in writing, if the project is no longer viable or the applicant no longer is requesting financial assistance for the project. When the applicant so notifies the Agency, the selection will be rescinded or the application withdrawn.

(c)
Satisfactory progress.
An applicant that has received one or more grants and/or guaranteed loans under this program must make satisfactory progress, as determined by the Agency, toward completion of any previously funded projects before the applicant will be considered for subsequent funding under this subpart.

§ 4280.111
Notifications.

(a)
Eligibility.
If an applicant is determined by the Agency to be eligible for participation, the Agency will notify the applicant or lender, as applicable, in writing. If the applicant or the project is ineligible, the Agency will inform the applicant or lender, as applicable, in writing of the decision, reasons therefore, and any appeal rights. No further evaluation of the application will occur.

(b)
Ineligible applications.
If an application is determined to be ineligible at any time, the Agency will inform the applicant in writing of the decision, reasons therefore, and any appeal rights. No further evaluation of the application will occur.

(c)
Award.
Each applicant will be notified of the Agency's decision on their application.

Renewable Energy System and Energy Efficiency Improvement Grants

§ 4280.112
Applicant eligibility.
To receive a RES or EEI grant under this subpart, an applicant must be an agricultural producer or rural small business, as defined in § 4280.103.

§ 4280.113
Project eligibility.
For a renewable energy system or energy efficiency improvement project to be eligible to receive a RES or EEI grant under this subpart, the proposed project must meet each of the criteria, as applicable, in paragraphs (a) through (j), as applicable, of this section, and is subject to the limitations specified in paragraph (k) of this section.

(a) The project must be for the purchase of a renewable energy system or to make energy efficiency improvements. Energy efficiency improvements to existing renewable energy systems are eligible energy efficiency improvement projects.

(b) The project must be for a pre-commercial or commercially available, and replicable technology.

(c) The project must have technical merit, as determined using the procedures specified in § 4280.117(b).

(d) The facility for which the project is being proposed must be located in a rural area, as defined in § 4280.103, in a State if the type of applicant is a rural small business, or in a rural or non-rural area in a State if the type of applicant is an agricultural producer. If the agricultural producer's facility is in a non-rural area, then the application can only be for renewable energy systems or energy efficiency improvements on integral components of or that are directly related to the facility, such as vertically integrated operations, and are part of and co-located with the agriculture production operation.

(e) The applicant must have a place of business in a State.

(f) The applicant must be the owner of the project and control the revenues and expenses of the project, including operation and maintenance. A third-party under contract to the owner may be used to control revenues and expenses and manage the operation and/or maintenance of the project.

(g) Sites must be controlled by the agricultural producer or rural small business for the financing term of any associated Federal loans or loan guarantees.

(h) Satisfactory sources of revenue in an amount sufficient to provide for the operation, management, maintenance, and debt service of the project must be available for the life of the project.

(i) For the purposes of this subpart, only hydropower projects with a rated power of 30 megawatts or less are eligible. The Agency refers to these hydropower sources as “small hydropower,” which includes hydropower projects commonly referred to as “micro-hydropower” and “mini-hydropower.”

(j) The project has demonstrated technical feasibility.

(k) No renewable energy system or energy efficiency improvement, or portion thereof, can be used for any residential purpose, including any residential portion of a farm, ranch, agricultural facility, or rural small business. However, an applicant may apply for funding for the installation of a second meter or provide certification in the application that any excess power generated by the renewable energy system will be sold to the grid and will not be used by the applicant for residential purposes.

§ 4280.114
Qualification for simplified applications.
When applying for a RES or EEI grant, applicants may qualify for the simplified application process. In order to use the simplified application process, each of the conditions specified in paragraphs (a)(1) through (a)(8) of this section must be met.

(a)
Simplified application criteria.

(1) The applicant must be eligible in accordance with § 4280.112.

(2) The project must be eligible in accordance with § 4280.113.

(3) Total eligible project costs must be $200,000 or less.

(4) The proposed project must use commercially available renewable energy systems or energy efficiency improvements.

(5) Construction planning and performing development must be performed in compliance with § 4280.119. The applicant or the applicant's prime contractor must assume all risks and responsibilities of project development.

(6) The applicant or the applicant's prime contractor is responsible for all interim financing.

(7) The proposed project is scheduled to be completed within 2 years after

entering into a grant agreement. The Agency may extend this period if the Agency determines, at its sole discretion, that the applicant is unable to complete the project for reasons beyond the applicant's control.

(8) The applicant agrees not to request reimbursement from funds obligated under this program until after project completion, including all operational testing and certifications acceptable to the Agency.

(b)
Application processing and administration.

(1)
Application documents.
Application documents shall be submitted in accordance with § 4280.116 or, if applying for a combined grant and loan, also in accordance with § 4280.165(c).

(2)
Project development.
Section 4280.119 applies, except as follows:

(i) Any grantee may participate in project development without direct compensation subject to the approval in writing by the prime contractor, provided that all applicable construction practices, manufacturer instructions, and all safety codes and standards are followed during construction and testing, and the work product meets all applicable manufacture specifications, and all applicable codes and standards. The prime contractor remains responsible for the overall successful completion of the project, including any work done by the grantee, or

(ii) A grantee who can demonstrate to the Agency that the grantee has the necessary experience and other resources to successfully complete the project may serve as the prime contractor/installer. Projects where the grantee serves as the prime contractor will need to secure the services of an independent, professionally responsible, qualified consultant to certify testing specifications, procedures, and testing results.

(3)
Project completion.
The project is complete when the applicant has provided a written final project development, testing, and performance report acceptable to the Agency. Upon notification of receipt of an acceptable project completion report, the applicant may request grant reimbursement. The Agency reserves the right to observe the testing.

(4)
Insurance.
Section 4280.118 applies, except business interruption insurance is not required.

§ 4280.115
RES and EEI grant funding.
(a) The amount of grant funds that will be made available to an eligible RES or EEI project under this subpart will not exceed 25 percent of total eligible project costs. Eligible project costs are specified in paragraph (c) of this section.

(b) The applicant is responsible for securing the remainder of the total eligible project costs not covered by grant funds. The amount secured by the applicant must be the remainder of total eligible project costs.

(1) Without specific statutory authority, other Federal grant funds cannot be used to meet the matching fund requirement.

(2) Passive third-party equity contributions are acceptable for renewable energy system projects, including those that are eligible for Federal production tax credits, provided the applicant meets the requirements of § 4280.112.

(c) Eligible project costs are only those costs associated with the items identified in paragraphs (c)(1) through (c)(10) of this section, as long as the items are an integral and necessary part of the renewable energy system or energy efficiency improvement.

(1) Post-application purchase and installation of equipment (new, refurbished, or remanufactured), except agricultural tillage equipment, used equipment, and vehicles.

(2) Post-application construction or improvements, except residential.

(3) Energy audits or assessments.

(4) Permit and license fees.

(5) Professional service fees, except for application preparation.

(6) Feasibility studies and Technical reports.

(7) Business plans.

(8) Retrofitting.

(9) Construction of a new energy efficient facility only when the facility is used for the same purpose, is approximately the same size, and, based on the energy assessment or audit, will provide more energy savings than improving an existing facility. Only costs identified in the energy assessment or audit for energy efficiency improvements are allowed.

(10) Energy efficiency improvements are limited to only improvements identified in the energy assessment or audit. Equipment identified by the assessment or audit to be replaced shall be replaced with equipment similar in capacity. If the energy efficiency improvement has a greater capacity than the existing equipment, the Agency will pro-rate the energy efficiency improvement's total eligible project costs based on the capacity of the existing equipment. A calculation shall be performed by dividing the capacity of the existing equipment by the capacity of the proposed equipment to determine the percentage of the energy efficiency improvement's eligible project costs that the Agency will use in determining the maximum grant assistance under this subpart (see example).

Example. A business plans to build a new production line with a capacity of 625 units per hour to replace an existing production line that produces 500 units per hour. The total project costs of the new production line is $20,000, of which $15,000 would otherwise qualify as eligible project costs. However, because the new production line has a greater production capacity than the existing line (625 units per hour versus 500 units per hour), only a portion of the $15,000 of otherwise eligible project costs would be used in determining total eligible project cost and the maximum grant assistance available. In this example, because the original capacity (500 units per hour) is 80 percent of the new capacity (625 units per hour), only 80 percent of the $15,000 of otherwise eligible project costs associated with the new production line (
i.e.,
$12,000) will be considered as total eligible project cost to be financed under this subpart. The maximum grant award in this example would be $3,000, which is equal to $12,000 × 25 percent.

(d) The maximum amount of grant assistance to one individual or entity will not exceed $750,000 per Federal fiscal year. For those applicants that have not received a grant award during the previous 2 Federal fiscal years, additional points will be added to their priority score.

(e) Applications for renewable energy system grants will be accepted for a minimum grant request of $2,500 up to a maximum of $500,000.

(f) Applications for energy efficiency improvement grants will be accepted for a minimum grant request of $1,500 up to a maximum of $250,000.

(g) In determining the amount of a RES or EEI grant awarded, the Agency will take into consideration the following six criteria:

(1) The type of renewable energy system to be purchased;

(2) The estimated quantity of energy to be generated by the renewable energy system;

(3) The expected environmental benefits of the renewable energy system;

(4) The quantity of energy savings expected to be derived from the activity, as demonstrated by an energy audit;

(5) The estimated period of time for the energy savings generated by the activity to equal the cost of the activity; and

(6) The expected energy efficiency of the renewable energy system.

(h)
Time limit.
Unless otherwise agreed to by the Agency, any renewable energy system or energy efficiency improvement grant agreement under this subpart will terminate 2 years from the date the Agency signs the agreement.

§ 4280.116
Application and documentation.
The requirements in this section apply to RES and EEI grant applications under this subpart.

(a)
General.
To ensure that projects are accurately scored by the Agency, applicants are requested to number each evaluation criteria and include, in that section, its corresponding supporting documentation and calculations according to § 4280.117.

(1)
One funding type applications.
Only one type of funding application (grant-only, guaranteed loan-only, or guaranteed loan/grant combination) for each project can be submitted under this subpart per Federal fiscal year.

(2)
Environmental information.
Each application must include all environmental review documents with supporting documentation in accordance with 7 CFR part 1940, subpart G.

(3)
Foreign technology.
As stated in § 4280.113(b), projects must be for a pre-commercial or commercially available technology. The Agency's position is that if the system is currently commercially available only outside the United States (U.S.), then applicants must provide authoritative evidence of the foreign operating history, performance, and reliability in order to address the proven operating history identified in the definition. “Commercial” applicants must provide evidence that professional service providers, trades, large construction equipment providers and labor are readily available domestically and familiar with installation procedures and practices, and spare parts and service are readily available in the U.S. to properly maintain and operate the system. All warranties must be valid in the U.S.

(4)
Commercial application demonstration of pre-commercial technologies.
In accordance with the definition of “pre-commercial” technology found in § 4280.103, technical and economic potential for commercial application must be demonstrated to the Agency. In order to demonstrate the system has emerged through research and development as well as the demonstration process, applicants must provide authoritative evidence of the operating history, performance, and reliability past completion of start-up, shake-down, and commissioning. Typically, and in line with financial and operating performance evaluation protocol, the documented operating history, which may be established domestically or outside the U.S., should provide performance data for a minimum of 12 months. The time period will address the economic and technical performance potential of the pre-commercial technology, as defined in § 4280.103. Lastly, in accordance with demonstrating the potential for commercial application, applicants must provide evidence that professional service providers, trades, large construction equipment providers, and labor are readily available domestically and sufficiently familiar with installation procedures and practices, and spare parts and service are available in the U.S. to properly maintain and operate the system. Any warranties have to be valid in the U.S.

(b)
Grant application content.
Applications and documentation for projects using the simplified application process, as described in § 4280.114, must provide the required information organized pursuant to the Table of Contents in a chapter format presented in the order shown in paragraphs (b)(1) through (b)(3) and (b)(5) through (b)(7) of this section; paragraph (b)(4) of this section does not apply for projects using the simplified application process. Applications and documentation for projects not using the simplified application process must provide the required information organized pursuant to the Table of Contents in a chapter format presented in the order shown in paragraphs (b)(1) through (b)(8) of this section.

(1)
Forms, certifications, and organizational documents.
Each application must contain the items identified in paragraphs (b)(1)(i) through (b)(1)(iv) in this section.

(i)
Project specific forms.

(A) Form SF-424, “Application for Federal Assistance.”

(B) Form SF-424C, “Budget Information-Construction Programs.” A more detailed budget breakdown is required in the Technical Report.

(C) Form SF-424D, “Assurances-Construction Programs.”

(D) Form RD 1940-20, “Request for Environmental Information.”

(ii)
Forms and certifications.

(A) AD-1049, “Certification Regarding Drug-Free Workplace Requirements (Grants) Alternative I—For Grantees Other than Individuals.”

(B) Form AD-1048, “Certification Regarding Debarment, Suspension, Ineligibility and Voluntary Exclusion—Lower Tier Covered Transactions.”

(C) Exhibit A-1 of RD Instruction 1940-Q, “Certification for Contracts, Grants and Loans,” required by 7 CFR 3018.110 if the grant exceeds $100,000.

(D) Form SF-LLL, “Disclosure of Lobbying Activities,” must be completed if the applicant or borrower has made or agreed to make payment using funds other than Federal appropriated funds to influence or attempt to influence a decision in connection with the application.

(E) AD-1047, “Certification Regarding Debarment, Suspension, and Other Responsibility Matters-Primary Covered Transactions.”

(F) Form RD 400-1, “Equal Opportunity Agreement.”

(G) Form RD 400-4, “Assurance Agreement.”

(H) Applicants and borrowers must provide a certification indicating whether or not there is a known relationship or association with an Agency employee.

(iii)
Organizational documents.
Except for sole proprietors, each applicant must submit, with the application, a copy of the legal organizational documents.

(iv) The applicant's Dun and Bradstreet Data Universal Numbering System (DUNS) number (except for individuals).

(2)
Table of Contents.
Include page numbers for each component of the application in the table of contents. Begin pagination immediately following the Table of Contents.

(3)
Project Summary.
Provide a concise summary of the project proposal and applicant information, project purpose and need, and project goals that includes the following:

(i)
Title.
Provide a descriptive title of the project (identified on SF 424).

(ii)
Applicant eligibility.
Describe how each of the applicable criteria identified in §§ 4280.109 and 4280.112 is met.

(iii)
Project eligibility.
Describe how each of the criteria in § 4280.113(a) through (j), as applicable, is met. Clearly state whether the application is for the purchase of a renewable energy system or to make energy efficiency improvements. The response to § 4280.113(a) must include a brief description of the system or improvement. This description must be sufficient to provide the reader with a frame of reference when reviewing the rest of the application. Additional project description information may be needed later in the application.

(iv)
Operation description.
Describe the applicant's total farm/ranch/business operation and the relationship

of the proposed project to the applicant's total farm/ranch/business operation. Provide a description of the ownership of the applicant, including a list of individuals and/or entities with ownership interest, names of any corporate parents, affiliates, and subsidiaries, as well as a description of the relationship, including products, between these entities.

(v)
Financial information for gross income or size determination.
Provide financial information to allow the Agency to determine the agricultural producer's percent of gross income derived from agricultural operations or the rural small business' size, as applicable. All information submitted under this paragraph must be substantiated by authoritative records.

(A)
Rural small businesses.
Provide sufficient information to determine total annual receipts for and number of employees of the business and any parent, subsidiary, or affiliates at other locations. Voluntarily providing tax returns is one means of satisfying this requirement. The information provided must be sufficient for the Agency to make a determination of business size as defined by SBA.

(B)
Agricultural producers.
Provide the gross market value of your agricultural products, gross agricultural income, and gross nonfarm income of the appl

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-8460. Public record. Not legal advice.