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Code · REGISTER · 2007-10-23 · Office of the Chief Financial Officer, Department of Energy · Rules and Regulations

Rules and Regulations. Final rule

94,295 words·~429 min read·/register/2007/10/23/07-5270

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BILLING CODE 4310-55-C 72 204 Tuesday, October 23, 2007 Rules and Regulations Part III Department of Energy 10 CFR Part 609 Loan Guarantees for Projects That Employ Innovative Technologies; Final Rule DEPARTMENT OF ENERGY 10 CFR Part 609 RIN 1901-AB21 Loan Guarantees for Projects That Employ Innovative Technologies AGENCY: Office of the Chief Financial Officer, Department of Energy. ACTION: Final rule. SUMMARY: On May 16, 2007, the Department of Energy (DOE or the Department) published a Notice of Proposed Rulemaking and opportunity for comment
(NOPR)to establish regulations for the loan guarantee program authorized by Title XVII of the Energy Policy Act of 2005 (Title XVII or the Act). Title XVII authorizes the Secretary of Energy (Secretary) to make loan guarantees for projects that “avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases; and employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued.” Title XVII also identifies ten categories of technologies and projects that are potentially eligible for loan guarantees. The two principal goals of Title XVII are to encourage commercial use in the United States of new or significantly improved energy-related technologies and to achieve substantial environmental benefits. DOE believes that commercial use of these technologies will help sustain and promote economic growth, produce a more stable and secure energy supply and economy for the United States, and improve the environment. Having considered all of the comments submitted to DOE in response to the NOPR, the Department today is issuing this final rule. DATES: *Effective Date:* This rule is effective upon October 23, 2007. FOR FURTHER INFORMATION CONTACT: David G. Frantz, Director, Loan Guarantee Program Office, Office of the Chief Financial Officer, 1000 Independence Avenue, SW., Washington, DC 20585-0121,
(202)586-8336, e-mail: *lgprogram@hq.doe.gov;* or Warren Belmar, Deputy General Counsel for Energy Policy, Office of the General Counsel, 1000 Independence Avenue, SW., Washington, DC 20585-0121,
(202)586-6758, e-mail: *warren.belmar@hq.doe.gov;* or Lawrence R. Oliver, Assistant General Counsel for Fossil Energy and Energy Efficiency, Office of the General Counsel, 1000 Independence Avenue, SW., Washington, DC 20585-0121,
(202)586-9521, e-mail: *lawrence.oliver@hq.doe.gov.* SUPPLEMENTARY INFORMATION: I. Introduction and Background II. Public Comments on the Notice of Proposed Rulemaking and DOE's Responses A. Technologies 1. Definition of New or Significantly Improved Technologies 2. Definition of Technologies in General Use 3. Nuclear Generation Projects B. Financial Structure Issues 1. Lender Risk, Stripping and Pari Passu 2. Equity Requirements for Project Sponsors 3. Other Governmental Assistance 4. Credit Assessment and Rating Requirements C. Project Costs D. Solicitation E. Payment of the Credit Subsidy Cost F. Assessment of Fees G. Eligible Lenders and Servicing Requirements H. Federal Credit Reform Act of 1990
(FCRA)I. Default and Audit Provisions J. Tax Exempt Debt K. Full Faith and Credit L. Responses to August 2006 Solicitation M. Other Issues Raised in the Public Comments III. Regulatory Review A. Executive Order 12866 B. National Environmental Policy Act of 1969 C. The Regulatory Flexibility Act D. Paperwork Reduction Act E. Unfunded Mandates Reform Act of 1995 F. Treasury and General Government Appropriations Act, 1999 G. Executive Order 13132 H. Executive Order 12988 I. Treasury and General Government Appropriations Act, 2001 J. Executive Order 13211 K. Congressional Notification L. Approval by the Office of the Secretary of Energy I. Introduction and Background Today's final rule establishes policies, procedures and requirements for the loan guarantee program authorized by Title XVII of the Energy Policy Act of 2005 (42 U.S.C. 16511-16514). Title XVII authorizes the Secretary of Energy, after consultation with the Secretary of the Treasury, to make loan guarantees for projects that “(1) avoid, reduce, or sequester air pollutants or anthropogenic emissions of greenhouse gases; and
(2)employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued.” (42 U.S.C. 16513(a)) On May 16, 2007, the Department published a Notice of Proposed Rulemaking and Opportunity for Comment (NOPR, 72 FR 27471) to establish regulations for the Title XVII loan guarantee program. DOE held a public meeting on the NOPR in Washington, DC on June 15, 2007. Section 20320(a) of Public Law 110-5, the Revised Continuing Appropriations Resolution, 2007 (Pub. L. 110-5) authorized DOE to issue guarantees under the Title XVII program for loans in the “total principal amount, any part of which is to be guaranteed, of $4,000,000,000.” Section 20320(b) of Public Law 110-5 further provides that no loan guarantees may be issued under the Title XVII program until DOE promulgates final regulations that include “(1) programmatic, technical, and financial factors the Secretary will use to select projects for loan guarantees;
(2)policies and procedures for selecting and monitoring lenders and loan performance; and
(3)any other policies, procedures, or information necessary to implement Title XVII of the Energy Policy Act of 2005.” The regulations being finalized today fulfill that requirement. Section 1702 of the Act outlines general terms and conditions for Loan Guarantee Agreements and directs the Secretary to include in Loan Guarantee Agreements “such detailed terms and conditions as the Secretary determines appropriate to “(i) protect the interests of the United States in case of a default [as defined in regulations issued by the Secretary]; and
(ii)have available all the patents and technology necessary for any person selected, including the Secretary, to complete and operate the project.” (42 U.S.C. 16512(g)(2)(c)) Section 1702(i) requires the Secretary to prescribe regulations outlining record-keeping and audit requirements. This final rule sets forth application procedures, outlines terms and conditions for Loan Guarantee Agreements, and lists records and documents that project participants must keep and make available upon request. II. Public Comments on the NOPR and DOE's Responses DOE received comments on the NOPR from 47 interested parties. Twenty interested parties presented oral comments and/or submitted written comments for the record at the public meeting. DOE summarizes below the major areas of the NOPR on which it received public comment, and discusses the Department's responses to those comments. Only major areas of the NOPR are discussed here, although DOE carefully reviewed all comments it received on the NOPR, and in some cases made adjustments to the rule text that are not discussed at length in this preamble. A. Technologies A principal purpose of the Title XVII loan guarantee program is to support “innovative technology” projects in the United States that “employ new or significantly improved technologies as compared to commercial technologies in service in the United States at the time the guarantee is issued.” (42 U.S.C. 16513(a)(2)) Section 1701(1)
(A)of the Act defines “commercial technology” as “a technology in general use in the commercial marketplace.” (42 U.S.C. 16511(1)(A)) Title XVII does not require, but on the other hand does not prohibit, different treatment for different eligible technologies or projects in the Title XVII program. Furthermore, the Act does not explain or define the phrase “new or significantly improved” in section 1703(a)(2), nor does it explain or define the terms “general use” or “commercial marketplace.” In the NOPR, DOE proposed to define the term “new or significantly improved technology” to mean “a technology concerned with the production, consumption, or transportation of energy, and that has either only recently been discovered or learned, or that involves or constitutes one or more meaningful and important improvements in the productivity or value of the technology.” (72 FR 27480) Because Title XVII focuses on encouraging and incentivizing innovative technologies not already in “general use” in the U.S. commercial marketplace, DOE stated in the NOPR that the Title XVII loan guarantee program should only be open to projects that employ a technology that has been used in a very limited number of U.S. commercial projects or used in a commercial project for only a limited period of time. Therefore, DOE proposed two possible ways of interpreting “general use”: it could mean “ordered for, installed in, or used in five or more commercial projects in the United States,” or “in operation in a commercial project in the United States for a period of five years, as measured beginning on the date the technology was commissioned on a project.” (72 FR 27480) DOE requested comment on these alternatives, and also on whether the same definition should apply to all types of projects and technologies eligible for loan guarantees. (72 FR 27474) As DOE stated in the NOPR, a project may be eligible for a Title XVII loan guarantee if it uses technology that has been used in any number of projects and for any period of time outside the United States, so long as the technology is not in “general use” in the United States. 1. Definition of New or Significantly Improved Technology *Public Comments:* Section 609.2 of the proposed regulations defined “new or significantly improved technology” to mean “a technology concerned with the production, consumption or transportation of energy, and that has either only recently been discovered or learned, or that involves or constitutes one or more meaningful and important improvements in the productivity or value of the technology.” Several commenters expressed the view that this definition is too narrow because it does not include improvements in “new systems or system integration.” Other commenters stated that the definition should reference or include the term “commercial use.” Some commenters stated that the definition was appropriate. Parson & Whittemore Incorporated (P&W) and Forest Energy System, LLC (FES), for example, assert that the proposed definition of new or significantly improved fails to capture the potential value of “systems” rather than individual technologies. They recommend expanding the definition to include improvements from new systems or systems integration. (P&W at 1; FES at 1). The Nuclear Energy Institute
(NEI)and Bechtel Corporation (Bechtel) challenged the NOPR's proposal to require that the technology be both new or significantly improved *and* not in general use in the commercial marketplace in the United States. They maintain that Title XVII only requires that a technology be new or significantly improved “as compared to” commercial technologies in service in the U.S. at the time the guarantee is issued. (NEI at 25; Bechtel at 5). The Verenium Corporation (Verenium) stated that it is possible that a technology has been in existence for some time but has never been commercially applied for some reason, such as a technology that was not viable when competing with oil at $20 a barrel but is competitive with oil at $60 a barrel. Verenium stated that DOE should focus on technologies “not yet in” use and therefore should make the definition of New or Significantly Improved Technology refer to the defined term “Commercial Technology.” (Verenium at 10). The Union of Concerned Scientists (UCS), however, stated that “DOE needs to develop objective criteria to demarcate ‘new’ or ‘significantly improved’ technologies from the sprucing up and recycling of current technologies,” and asserted that the approach of the NOPR relied upon “subjective judgments concerning the definition rather than employing more objective, quantitative measures of novelty and significant improvement.” (UCS at 1). UCS did not, however, offer any suggestions as to what sort of “objective, quantitative measures of novelty and significant improvement” would be appropriate for adoption in the rule. TXU Generation Development Company LLC
(TXU)argued that the rule should adopt a “flexible definition” with DOE and expert consultants making decisions on particular technologies at the preliminary application stage. (TXU at 7). Eastman Chemical Company (Eastman) supported the NOPR's proposed disqualification of projects solely in the research, development, or demonstration phase as long as the criteria is applied “to the overall project and does not make a project ineligible just because one subsection of technology is new.” Eastman adds: “Arguably, a use of proven or commercial technologies in a new or novel configuration, combination, or implementation method, such as polygeneration should qualify as a ‘new or significantly improved technology.’ ” (Eastman at 3). Beacon Power Corporation (Beacon) recommends broadening the definition by adding the following italicized phrase so that the definition would read: “technologies concerned with the * * * productivity or value of the technology *or an improvement over an existing technology that will perform the same function.* ” (Beacon at 3). Ameren Services Company (Ameren) supported the proposed definition of new or significantly improved technologies, subject to the addition of the following phrase: “in service in the United States at the time the guarantee is issued,” which is part of the statutory definition in § 1703(a)(2) of the Act. (Ameren at 2). *DOE Response:* There is no one universally accepted or agreed upon definition of the term “technology.” Generally, technology is thought to be the practical application of science to industrial or commercial objectives. Technology may also include electronic or digital products and systems considered as a group. DOE believes that the term “technology” in Title XVII was intended to have a very broad meaning, given the purposes of Title XVII, and therefore does not believe it is advisable to set down by rule a narrow definition of what will be considered a “technology” for purposes of this program. However, the Department believes it is important to establish what may enable a particular technology to be considered “new or significantly improved”. By its explicit terms, the Title XVII loan guarantee program is not open to all technologies and projects, but only those that are new or significantly improved in comparison to commercial technologies in use in the United States. Several commenters asserted that the proposed definition of “new and significantly improved technology” in the NOPR mistakenly requires that in order to be eligible for a loan guarantee, a project must employ a technology that is both new and improved and is not in commercial use in the United States. They argue that the regulatory definition should be clarified to make clear that the test is new or significantly improved *as compared to* commercial technologies in service in the United States. They correctly quote Title XVII, but are mistaken as to the import of that language and the language in the NOPR. Either a technology is in general use in the U.S. commercial marketplace or it is not. If it is in general use, then the same technology could not possibly be “new or significantly improved” in comparison to technology in general use in the U.S. commercial marketplace, and it is ineligible for a Title XVII loan guarantee. Yet a technology does not automatically become eligible for a Title XVII loan guarantee merely because it is not a U.S. commercial technology; rather, it must be “new or significantly improved” in comparison to such commercial technology. If the statute required only that it be “new” or “different” in comparison to commercial technologies, then it might well be that in order to become eligible for a Title XVII guarantee, all a project sponsor would need to show is that it was using a technology currently not in commercial use in the United States. But such an interpretation of Title XVII would render as surplusage the words “or significantly improved” in section 1703(a)(2) of the Act. As a result, the term “new or significantly improved” cannot simply mean not currently in commercial use in the United States; it must mean that the technology itself is either newly developed, or it must constitute a significant improvement over technologies currently in U.S. commercial use. Notably, in order to be eligible for a loan guarantee a technology need not be *both* new and significantly improved, but must only be one or the other. DOE does believe it is useful to clarify that while a “new” technology must be newly developed, discovered or learned, a “significantly improved” technology may in fact be “old” but a significant improvement over technologies currently in commercial use in the United States. Thus, and as noted in the NOPR, DOE agrees with the assertions by some commenters that a technology could be eligible for a loan guarantee even if it was developed long ago and even if it is used in the same commercial application outside the United States, as long as that technology is not in general commercial use for that application in the United States at the time the loan guarantee is issued. Consistent with DOE's interpretation of section 1703(a)(2) of the Act, section 609.2 of the final rule provides, in part, as follows: *New or significantly improved technology* means a technology concerned with the production, consumption or transportation of energy that is not a Commercial Technology, and that has either:
(i)Only recently been developed, discovered or learned; or
(ii)involves or constitutes one or more meaningful and important improvements in productivity or value, in comparison to Commercial Technologies in use in the United States at the time the Term Sheet is issued. 2. Definition of Technologies in General Use *Public Comments:* Under section 1703(a)(2) of the Act, projects are eligible for Title XVII loan guarantees only if they employ new or significantly improved technologies as compared to “commercial technologies” that are “in service in the United States” when guarantees are issued. Section 1701(1)(A) defines “commercial technology” to mean “a technology in general use in the commercial marketplace.” The NOPR proposed two alternative definitions of “general use”: A technology would be considered to be in “general use” if it had been “ordered for, installed in, or used in five or more [commercial] projects in the United States”; or alternatively, if it had been “in operation in a commercial project in the United States for a period of five or more years as measured beginning on the date the technology was commission[ed] on a project.” This definition is important because, as noted above, a proposed technology cannot qualify a project for a Title XVII loan guarantee if it is in “general use” in the U.S. commercial marketplace. 1 1 Notably, the existence of technology in a project that is in general commercial use in the United States does not in itself *disqualify* a project from eligibility for a Title XVII loan guarantee. Most if not all projects that are eligible for loan guarantees will employ some technologies that are in such general use. Several commenters stated that the first of the alternatives set forth in the NOPR was acceptable, but the second alternative definition should not be an option or should be revised. On the other hand, several commenters stated that the second alternative definition would be appropriate for nuclear projects because the early operational phase is more useful in determining whether a technology is workable and acceptable. Other commenters stated that the second alternative should not be adopted because it likely would lead to a very large number of nuclear projects being eligible for loan guarantees since there is a long period of time between initiation of work on a nuclear generation facility and the completion of five years of operation, and during this time a large number of projects using the same technology could apply for and be granted loan guarantees. Still other commenters were of the view that it is impossible to adequately define “general use” and asserted that DOE therefore should approve or disapprove loan guarantee proposals to use technologies on a case-by-case basis. Commenters also expressed the view that the two alternative definitions for “general use” should be combined into one definition. More specifically, in their joint comments Constellation Nuclear Utilities, Inc., Entergy Corporation, Exelon Corporation, and NRG Energy, Inc. (Nuclear Utilities) asserted that for nuclear technologies the definition of a technology that is in “general use” should be based upon five or more years of operation of any given new design (e.g., an advanced reactor design that is separately certified by the Nuclear Regulatory Commission (NRC)). They argued that if DOE were to use the “five or more projects” alternative for defining what constituted “general use,” it would be essential that the phrase “order for, installed in, or used in” should be changed to “ordered for, installed in, and used in,” since for nuclear plants, ordering would take place many years before use. (Nuclear Utilities at 19-20). NEI, Dominion Resources Services, Inc. (Dominion) and Excelsior Energy, Inc. (Excelsior) submitted similar comments. (NEI at 24, Dominion at 12, Excelsior at 2-3). Southern Company Services, Inc., (Southern) stated that technology should be considered in “general use” when financing has been established for five or more projects in the United States. Southern stated that its proposed interpretation of “general use” would assist DOE's effort in having a broad portfolio of large and small projects with a wide variety of technologies supported by the Title XVII program, because it would limit the number of project participants that employ the same technology. Southern also asserted that the successful implementation of five projects employing a particular technology should greatly reduce the concerns of the credit markets, and stated that not considering a technology to be in “general use” until it has been in operation in a commercial project in the United States for five years could result in an unlimited number of projects utilizing the same technology. (Southern at 1). Verenium stated that if over a five-year period a technology has been used in fewer than five projects, the technology is probably not in general use because it would indicate there is some barrier to competitiveness. The restriction to five projects, according to Verenium, should be stated as only a “presumption,” so that DOE could deviate from it in appropriate circumstances. Verenium further argued that the term “ordered for” may be ambiguous, and thus suggested the use of “in the process of being installed” if DOE adopts an alternative employing this concept, and thus suggested the following language for the definition of Commercial Technology: “ *Commercial Technology* means a technology in general use in the commercial marketplace in the United States, but does not include a technology solely by use of such technology in a demonstration project funded by DOE. A technology is *presumed to be* in general use if it has been installed or used *or is in the process of being installed* in five commercial projects in the United States.” (Verenium at 12-13). Standard & Poor's (S&P) stated that projects involving integrated gasification combined cycle
(IGCC)and coal-to-liquids
(CTL)technologies currently lack a commercial track record and therefore would be assigned a risk premium by that rating agency. However, S&P said that if there are at least five operational projects using a particular technology, and as long as there was a material track record of operations, the perceived risk and thus the risk premium associated with the technology would be substantially reduced. (S&P at 2). The Iogen Corporation (Iogen), believes that the definition proposed in the NOPR is too restrictive and notes that the financial community has displayed great reticence to providing debt financing at reasonable commercial rates for new technologies that have not been widely demonstrated. Iogen would prefer that DOE not adopt a single “bright line” test and that the Department instead rely on market forces to determine the need for a guarantee. However, if the Department is going to develop a test, Iogen proposes to combine the two alternatives into one modified definition, so that a particular technology would be considered to be in general use if it had been installed or used in five or more projects in the United States for a period of five years. (Iogen at 2-3). The Coal Utilization Research Council
(CURC)stated that the “proposed definition of general use is not suitable as it relates to projects that will use technologies that have been in commercial use for other applications,” and that “size, process configurations, and technology modifications are among the several general characteristics of projects that need to be considered when applying the general use definition.” (CURC at 5). Baard Energy L.L.C. (Baard) proposed that, with respect to CTL projects, “general use” should be defined by the first alternative set forth in the NOPR, i.e., technologies that have been installed and used in five or more commercial projects in the United States. Baard asserts that the second alternative, five years, is too short. In order to accommodate construction schedules for CTL plants and to allow for innovations and improvements, Baard maintains that the second alternative should be extended to ten years. (Baard at 3). Bechtel Power Corporation (Bechtel) recommends combining the two alternatives for determining “general use” proposed in the NOPR, as follows: The technology or combination of technologies have been ordered for, installed in, and used in five or more projects in the U.S., each for a period of five years, measured from date of commissioning. Bechtel's other comments regarding “general use” are focused on new nuclear technologies that have never been built in the United States. According to Bechtel, the technologies in question (“Gen III” and “Gen III+” nuclear designs) should be judged individually for purposes of determining whether either of the alternative meanings of “general use” proposed in the NOPR apply to them. Bechtel states that the “general use” language in the rule must clearly distinguish new generations or new applications of a technology such as Gen III or Gen III+ in order to assure that they are not excluded from loan guarantee eligibility by the fact that over 100 nuclear plants have been built in the United States, when those plants used different designs and were constructed in a much different industry and regulatory environment. (Bechtel at 4). CPS supports the second alternative definition set forth in the NOPR, and submits that the five to seven year construction period for a nuclear project means that starting the “clock” from the time the technology is commissioned on a project, may mean that the project is disqualified at or prior to the technology's in-service date. CPS asserts that guarantees should be available, to the extent of appropriations, until each distinct technology is in full commercial operation. (CPS at 7). Abengoa Bioenergy New Technologies
(ABNT)recommends that DOE select the definition which utilizes time from first commercialization as the basis for defining “general use.” ABNT argues that if the other alternative is selected, DOE will be discouraging competition and applications from a number of projects which are eligible under a given solicitation or invitation, and that by determining eligibility on the basis of “a fixed window of time,” DOE will provide certainty that a project will remain eligible for a loan guarantee at some future time regardless of intervening events with other projects or technologies. ABNT does not dispute the NOPR's proposal of a five-year time frame, but suggests that a superior approach may be to establish a time frame according to the commercial technology defined in each solicitation or invitation. (ABNT at 1). *DOE Response:* DOE agrees with concerns expressed by many commenters about the “five project” alternative proposed in the NOPR. These commenters were concerned that a definition that did not include an operational component, which lenders need to develop confidence that a technology is proven and is viable in actual commercial operation, may not be workable for this program, and may not result in effective reduction of commercial risk and effective increased commercial marketplace acceptance prior to the closing of loan guarantee program eligibility. DOE believes that other entities considering incorporation of a particular technology into their planning want to see technologies proven in actual practice before investing substantial sums on that technology and incorporating it into large-scale capital expenditure plans. Furthermore, operational experience reduces risk from the standpoint of the credit and debt markets, and can lead to increased access to capital markets at lower rates. We particularly note and find persuasive S&P's comment that if there were at least five operational projects in a particular technology within the United States, the perceived risk premium associated with the technology should be substantially reduced. We also note that adoption of the “five projects” proposal in the NOPR but without including an operational period could result in technologies or projects involving very long development and construction times being disqualified from receiving additional loan guarantees before even one project had commenced commercial operations, or in extreme cases, before any projects employing the technology had even commenced construction. After review and evaluation of the comments, DOE accordingly has revised section 609.2 of the NOPR as follows: *Commercial Technology* means a technology in general use in the commercial marketplace in the United States at the time the Term Sheet is issued by DOE. A technology is in general use if it has been installed in and is being used in three or more commercial projects in the United States, in the same general application as in the proposed project, and has been in operation in each such commercial project for a period of at least five years. The five year period shall be measured, for each project, starting on the in service date of the project or facility employing that particular technology. For purposes of this section, commercial projects include projects that have been the recipients of loan guarantees from DOE under this part. DOE believes this definition reasonably addresses the concerns that DOE considers persuasive. By referring to the “same general application” as the proposed project, the definition provides that a technology is not necessarily considered in “general use” if it has been used for completely different projects or applications than in the proposed project. For example, the fact that fuel cells have been used in some small-scale applications for flashlights would not disqualify an application for a project that proposed to use fuel cells to power a motor vehicle. The definition also makes clear that it is only use of a technology in a project in the United States that can potentially render it in “general use” for the purposes of this program. The definition provides that each of three projects using a particular technology must be in service for five years before the technology is considered to be in general use. Thus, this definition deals with the concern expressed by some commenters that technologies should be barred from program eligibility only if there has been substantial actual operational experience with them. Finally, the definition clarifies that projects that have received loan guarantees will be counted when determining whether technologies have been used in a sufficient number of projects to render them no longer eligible for the program. DOE believes this is consistent with the overall purpose of the program in encouraging the introduction of new and improved technologies into the commercial marketplace, but ensuring that technologies do not remain forever dependent on loan guarantee support in order to be commercially viable. The Title XVII program should help introduce technologies to the commercial marketplace, but it should be up to those technologies and to the commercial marketplace as to whether the technologies continue to be economically and technologically viable, or not. DOE notes that even though the definition of “commercial technology” it is adopting in this rule may permit multiple projects using the same technology to be eligible for a Title XVII guarantee, DOE is under no obligation to seek authority for, or to issue solicitations for, all or any particular technology that may fall within the outer limits of eligibility for a loan guarantee, as that eligibility is prescribed by Title XVII and this rule. Indeed, it is perfectly possible that DOE may decide not to issue a solicitation covering a certain technology, even though projects using that technology would be eligible under this rule for a loan guarantee. Furthermore, this definition of “commercial technology” in no way limits DOE's ability to include within a solicitation a selection criterion, and assign a weighting for that criterion, based on the number of projects already in service using that technology. 3. Nuclear Generation Projects *Public Comments:* Comments from the nuclear industry asserted that regulations proposed in the NOPR were not appropriate or workable for commercial nuclear power projects because of the size and unique regulatory and litigation-related risks surrounding these projects. The industry's stated primary concern is the ability of industry participants to access the capital markets at what they view as reasonable rates, terms and conditions. CPS Energy (CPS), on behalf of itself and the Large Public Power Conference, a group of utility companies with nuclear power facilities, recommended that new nuclear technology should be defined separately and differently from other technologies eligible for Title XVII loan guarantees. CPS cited two principal factors supporting this recommendation:
(1)The capital intensive nature of new nuclear development; and
(2)the different technologies proposed represent vastly different scales of new technology, as compared with other types of eligible projects. CPS stated that the cost of new nuclear generating capability is in the neighborhood of $2,000 per kilowatt and the capacity of the plants is in excess of 1,300 megawatts, that five different reactor technologies are being proposed, and that none of the technologies currently are in operation in the United States. Therefore, CPS asserted that each of the five technologies should be treated as a distinct new technology eligible for loan guarantees. (CPS at 7). Iogen, however, strongly opposed DOE making the loan guarantee program more favorable for larger projects involving electricity generation from nuclear power or coal combustion/gasification than for other types of projects, such as those that would advance the President's “20 in Ten” initiative, which Iogen said depends on the widespread deployment of advanced biofuels refineries. (Iogen at 1). The American Council on Global Nuclear Competitiveness (ACGNC) stated that DOE should look beyond nuclear power plants when defining the term “advanced nuclear energy facilities” that appear in section 1703 of the Act. ACGNC stated that this language is broad enough to allow DOE to issue loan guarantees to projects that will restore the domestic nuclear energy design, manufacturing, service and supply industry, such as uranium mining and milling operations; uranium conversion and enrichment facilities; reactor component fabrication facilities; and used fuel recycling plants. (ACGNC at 2-3). Goldman and Sachs & Co. (Goldman Sachs) recommended that the final rule expressly include nuclear power generating stations and advanced technology low enriched uranium
(LEU)production facilities in the definition of what could constitute an eligible project. Goldman Sachs emphasized that the described facilities are essential to fostering the domestic development of emissions-free, affordable base-load nuclear power generation, and that advanced nuclear energy facilities are one of the ten categories of projects specifically addressed in the Act. (Goldman Sachs at 5). *DOE Response:* Nuclear projects were the only type of projects for which some commenters asserted the final rule should accord different treatment than other technologies. However, most if not all of those comments argued that different treatment was appropriate because of the very large cost and long construction and permitting/licensing time for such projects. And yet, similar arguments could be made in support of some other types of potentially eligible projects, such as refineries, IGCC facilities, or CTL projects. No commenters argued that nuclear technology per se makes nuclear projects deserving of different and more favorable treatment than the final rule affords to other projects that have large capital requirements and difficult regulatory environments. Moreover, DOE believes it has dealt appropriately with many if not most of the concerns expressed by nuclear industry participants regarding the issues of “general use” and other matters discussed elsewhere in this preamble and in the final rule text. Therefore, the final rule does not differentiate between nuclear power generation projects and all other projects. B. Financial Structure Issues The Act imposes certain limitations on the financial structure of proposed projects, including that a loan guarantee “shall not exceed an amount equal to 80 percent of the project cost of the facility that is the subject of the guarantee as estimated at the time at which the guarantee is issued.” (42 U.S.C. 16512(c)) Section 1702(g)(2)(B) of the Act further requires that “with respect to any property acquired pursuant to a guarantee or related agreements, [DOE's rights] shall be superior to the rights of any other person with respect to the property.” In the NOPR, the Department interpreted this statutory provision to require that DOE possess a first lien priority in the assets of the project and other assets pledged as security, and stated that because DOE believed it is not permitted by Title XVII to adopt a *pari passu* security structure, Holders of the non-guaranteed portion of a loan or debt instrument supported by a Title XVII guarantee would have a subordinate claim to DOE in the event of default. DOE proposed in the NOPR that it only would issue a guarantee for up to 90 percent of a particular debt instrument or loan obligation for an Eligible Project. This limitation was subject to the overriding statutory requirement that DOE's guarantees for a particular project could not exceed 80 percent of Project Costs. Furthermore, in connection with any loan guaranteed by DOE that may be participated, syndicated, traded, or otherwise sold on the secondary market, DOE proposed to require that the guaranteed portion and the non-guaranteed portion of the debt instrument or loan be sold on a pro-rata basis. In the NOPR, DOE proposed not to allow the guaranteed portion of the debt to be “stripped” from the non-guaranteed portion, i.e., sold separately as an instrument fully guaranteed by the Federal government. The Act does not mandate a specific equity contribution to a project that receives a Title XVII loan guarantee, but DOE proposed in the NOPR that in order to receive a loan guarantee, Project Sponsors must have a significant equity stake in the proposed project. DOE solicited comments on the merits of adopting a minimum equity percentage requirement for projects, and stated that in evaluating loan guarantee applications, the Department would consider whether and to what extent a Project Sponsor will rely upon other government assistance (e.g., grants, tax credits, other loan guarantees, *etc.* ) to support financing, construction or operation of a project. Finally, DOE proposed to require with submission of an application for a loan guarantee a “credit assessment” for the project without a loan guarantee from a nationally recognized rating agency, where the size and estimated cost of the project justify such an assessment. Additionally, DOE proposed to require that not later than 30 days prior to closing, Applicants must provide a “credit rating” from a nationally recognized rating agency reflecting the Final Term Sheet for the project without a Federal guarantee. The Department requested comments as to whether it should establish a project size (dollar) threshold below which DOE could waive the credit assessment and rating requirements. *Public Comments:* 1. Lender Risk, Stripping and Pari Passu Commenters that addressed the 90 percent, no stripping, and pari passu provisions in the NOPR were generally opposed to these restrictions. S&P commented on the 90 percent guarantee limitation in combination with the stripping prohibition stating that “[t]his is the provision [sic] that has the greatest credit consequence. The rating associated with a partially guaranteed obligation will be substantially lower than the `AAA' rating of a fully guaranteed instrument . . . [and] will result in a significantly higher cost of debt for the project than if it was fully guaranteed.” (S&P at 5). S&P also stated that “[t]he disadvantage created by the partial guarantee can be overcome if the loan can be `stripped', effectively creating two tranches of debt, one with a `AAA' rating and the second rated much lower.” (S&P at 5). NEI asserted that allowing 90 percent guaranteed loans, instead of placing the limit at 80 percent as did the August 2006 Guidelines, did not improve what NEI viewed as a limitation adversely affecting the overall viability of the Title XVII program for nuclear projects. NEI stated that the NOPR would create a financing structure that is not workable. It would create, according to NEI, a hybrid loan facility for which there is no market, a debt instrument with a guaranteed portion and a non-guaranteed potion which cannot be stripped, and would render the unsecured, non-guaranteed portion of the debt “quasi-equity.” The impact, according to NEI, would be to compromise project economics, increase debt service requirements, and increase costs to electricity consumers. NEI further said if DOE's proposal were adopted, the Title XVII loan guarantee program would not operate like other successful Federal loan guarantee programs. NEI stated that those other programs generally provide for 100 percent Federal guarantee coverage of the loan amount; allow *pari passu* treatment of non-guaranteed commercial debt; and permit stripping of guaranteed debt from non-guaranteed debt and follow standard practice in determining eligible project costs. NEI said that DOE's NOPR was deficient on all four of these issues. (NEI at 2-3). In a set of joint comments, Citigroup, Credit Suisse, Goldman Sachs, Lehman Brothers, Morgan Stanley and Merrill Lynch (Investment Bankers) stated that investors or lenders in the fixed income markets will be acutely concerned about a number of political, regulatory and litigation-related risks surrounding nuclear power, including the possibility of delays in commercial operation of a completed plant. The Investment Bankers also stated that these risks, combined with the higher capital costs and longer construction schedules of nuclear plants, as compared to other electric generation facilities, may make lenders unwilling to make long-term loans to such projects on commercially viable terms. (Investment Bankers at 1). The Nuclear Utilities also stated that the Title XVII loan guarantee program must guarantee debt through workable financing instruments. They asserted that limiting guarantee coverage to 90 percent, prohibiting *pari passu* security structures, and prohibiting “stripping,” would result in a program that would not support the financing of new nuclear plants in the United States. The Nuclear Utilities said that their primary concern relates to the percentage of a project's debt the loan guarantee will cover. They believe that DOE would be fully justified in guaranteeing 100 percent of a Guaranteed Obligation, up to 80 percent of project cost. Moreover, the Nuclear Utilities stated that providing 100 percent guarantee coverage of a debt instrument is not only necessary because commercially viable financing is not available on an non-guaranteed basis, but also because a 100 percent U.S. government guarantee will enable lenders and borrowers to maximize the efficiency of the existing, well-established marketplace for government guaranteed debt. The Nuclear Utilities also believe that the “no stripping” requirement combined with the prohibition on *pari passu* security structures, creates a form of “hybrid” debt for which there is no natural, existing market. According to the nuclear industry, the market participants would incur a significantly higher average cost of financing, as well as unnecessary transaction costs to achieve project structures that would enable the project's debt to be placed with its appropriate constituents in the existing marketplace. The Nuclear Utilities stated that such structures could lead to a form of “synthetic” stripping that undercuts the purpose of the no stripping requirement. (Nuclear Utilities at 5-8). They recommended that any concern about lender due diligence should be addressed by DOE retaining outside legal, technical, and financial experts to supplement its internal expertise in performing the necessary project due diligence and assessing project risks, and that the reasonable costs and expenses of these experts should normally be borne by the sponsors and constitute part of project costs. (Nuclear Utilities at 10-11). The Investment Bankers expressed views that are generally consistent with those of the Nuclear Utilities. They also noted that in some cases, investors in the AAA government-guaranteed market are restricted, legally or otherwise, from investing in the sub-debt market. They said that requiring investors to own interests through a mandated hybrid instrument in both AAA paper and deeply subordinated “quasi-equity” paper removes both of these financing instruments from their natural market. (Investment Bankers at 1). The Investment Bankers stated that “[t]here is a deep and highly efficient market for `AAA' government guaranteed paper. Investors in that market are distinctly different from those investors who participate in the sub-debt market. Requiring investors to own interests through a mandated hybrid instrument in both AAA paper and deeply subordinated `quasi-equity' paper removes both of these financing instruments from their natural markets.” (Investment Bankers at 1). The 100 percent Government guaranteed debt instruments are purchased by investors who are more risk averse. Investors in non-guaranteed debt instruments are willing to take more risk for the prospect of greater returns on their investments. Verenium also expressed concern about the 90 percent guarantee limitation and the prohibition on “stripping” that are similar to the concerns expressed by the Investment Bankers and the Nuclear Utilities. (Verenium at 4). Verenium suggested that one alternative to 100 percent guarantees would be to allow the non-guaranteed loan to be repaid on a shorter amortization schedule than the guaranteed loan. (Verenium at 6). According to JP Morgan Securities, Inc. (JP Morgan) it is unclear how lenders would fund the non-guaranteed portions of a partially guaranteed loan on which stripping was prohibited since banks rarely lend for tenures beyond eight to ten years, particularly when the debt is subordinated. JP Morgan further stated that an expectation that lenders would maintain the non-guaranteed portions for the life of such loans is unrealistic, and that by taking a second lien interest, a lender's participation is tantamount to an equity investment. (JP Morgan at 1). Bechtel contended that a commercially viable market does not exist for a hybrid instrument for which stripping is barred. Eliminating stripping, according to Bechtel, is not in line with other Federal loan guarantee programs and would increase the cost of project debt by eliminating a bank's ability to utilize various securitization vehicles, such as the Private Export Funding Corporation (PEFCO) or Govco, Inc., the special purpose lending vehicle of Citigroup, which provide efficient and cost effective vehicles to fund federally guaranteed loans. Bechtel further agreed that the first lien requirement in the NOPR is inconsistent with established norms in project lending and that the Export Import Bank of the United States, the Overseas Private Investment Corporation, and the Transportation Infrastructure Finance and Innovation Act of 1998 (TIFIA) program at the Department of Transportation treat any non-guaranteed debt as pari passu in terms of both payment and security. (Bechtel at 2). Power Holdings of Illinois LLC (Illinois), however, supported the 90 percent loan guarantee limitation in the NOPR, and the proposed prohibition on stripping. (Illinois at 1). Baard also agreed with the 90 percent limitation. Baard said that this limit was an improvement over the 80 percent of debt instrument guarantee limit set forth in the August 2006 Guidelines, and that it would be an effective mechanism for ensuring that investors/lenders perform rigorous due diligence prior to committing their money for a project. (Baard at 5). 2. Equity Requirements for Project Sponsors Almost all parties that submitted comments on this issue were opposed to a fixed numeric minimum equity requirement. Illinois agreed with the concept that Project Sponsors should be required to have a significant equity stake in a project, but said DOE should not adopt a fixed, numeric minimum equity percentage, threshold, or requirement. Illinois asserted that equity structure in a given project can vary with a number of factors, including technology used and the market for the project's products, and that imposing a fixed, numeric minimum equity percentage threshold or requirement for projects that might for good reason fall below such a threshold could result in the exclusion of otherwise worthy projects. (Illinois at 2). NEI also stated that DOE should not mandate a specific minimum equity percentage for eligible projects. The appropriate debt/equity ratio, according to NEI, will vary across technologies and sectors and among projects, and should be determined by project economics. (NEI at 23). Bechtel offered similar comments. (Bechtel at 2). 3. Other Governmental Assistance Most parties commenting on this issue stated that other governmental assistance to a project should be considered beneficial to the project and to DOE, and should not be used to exclude projects from consideration for the Title XVII program or regarded as a negative factor when evaluating the merits of particular projects. With respect to DOE's consideration of the “extent the Applicant will rely on other federal and non-federal governmental assistance” (section 609.7(b)(9) of the proposed regulations), Iogen agreed that this factor should be considered, but a primary consideration should be whether there was significant private equity involvement in a proposed project. Iogen stated that under no circumstances should Federal government assistance be counted toward any equity contribution requirement. Iogen agreed that DOE should include Federal government assistance only as an evaluation factor, and not as one of the six disqualifying conditions listed at section 609.7(a) of the proposed regulations because, among other things, government assistance reduces total project costs, thus reducing the size of any loan guarantee, increases the likelihood of debt repayment, allows DOE to better leverage its participation in a variety of projects, and is an indicator of strong political and community support. Iogen also stated that presence of Federal government assistance does not, in itself, limit the level of private commitment. For example, Iogen stated that a project with 20% federal assistance, a 50% loan guarantee, and 30% equity, could reasonably be preferred over a project with an 80% loan guarantee and 20% equity. (Iogen at 4-5). Bechtel stated that multiple forms of governmental assistance should not be a negative factor because tax and other incentives are intended to be complementary, not exclusive, and multiple forms of governmental assistance could enhance a project's economics and creditworthiness. Therefore, Bechtel asserted that subsidy costs should be adjusted to reflect the reduced risk of default where there are multiple forms of governmental assistance. (Bechtel at 6). The Nuclear Utilities also expressed the view that other forms of governmental assistance should be viewed positively. (Nuclear Utilities at 20-23). CURC stated that if a project obtains other forms of governmental assistance, the cost of the loan guarantee should be adjusted to reflect the reduced risk of default on the underlying debt obligation as a result of the other support. CURC said that DOE should not limit a project's ability to receive more than one form of federal assistance. (CURC at 5). 4. Credit Assessment and Rating Requirements The NOPR proposed that a project sponsor must obtain a preliminary credit assessment and subsequent credit rating for a project without a loan guarantee from a recognized credit rating agency. (609.6(b)(21) and 609.9(f)). Most commenters that expressed a view on this issue stated that a credit assessment or rating was not very useful, and too expensive and that a better value could be obtained from entities other than established rating agencies. USEC Inc.
(USEC)stated that it does not understand the purpose of proposed § 609.9(f) which required that applicants obtain a credit rating from a nationally recognized rating agency reflecting the final term sheet without a Federal guarantee. USEC said that such a requirement would add to the cost of the application process with little benefit since the credit rating agencies are ill-equipped to evaluate the technical risks associated with new or emerging technologies. USEC stated that credit rating agencies look to historical data—not clearly relevant to new or emerging technologies. On the other hand, USEC said that DOE is positioned to conduct such an evaluation on its own with the other information provided in the application. (USEC at 5). S&P stated that the credit assessments provided at the time of application will likely have to be limited to a rating category (with the `+' and `−' signs that normally accompany S&P ratings), because project documentation will likely be in a very preliminary state at this point. (S&P at 8). Goldman Sachs recommended that the requirement for a credit assessment as part of the application submission be eliminated from the final rule although sponsors should be able to elect to obtain a credit assessment as part of their application submission if they wish to do so. Goldman Sachs stated that obtaining a credit assessment is a long process that “frequently consumes valuable time and resources during the most critical stages of negotiation.” Also, Goldman Sachs asserted that “the primary rating agencies often do not provide a final rating until all documents have been negotiated and closing is imminent” and that the rating will “be highly dependent on the existence of the loan guarantee, and thus a rating without the guarantee will be of little substantive value.” (Goldman Sachs at 9). FES and P&W proposed that DOE set a project cost threshold of $25 million for waiving the credit rating requirement. (FES at 3, P&W at 2). Illinois also stated that DOE generally should have authority to waive any credit rating requirement. However, according to Illinois, a simple project size threshold for waiving the requirement would oversimplify the circumstances under which DOE would consider such waivers. Illinois stated that rather than a simple project size threshold, DOE should set forth other criteria, such as a ratio of project debt to sponsor equity, the duration of the loan guarantee or the credit subsidy cost, in addition to the project size. (Illinois at 2). *DOE Response:* 1. Lender Risk, Stripping and Pari Passu The primary goals of the Title XVII loan guarantee program are to encourage and incentivize the commercial use in the United States of new or significantly improved energy-related technologies and to achieve substantial environmental benefits. Sections 609.10(d)(3),
(4)and
(13)of the NOPR provided, in sum, that
(1)DOE could guarantee no more than 90 percent of any debt instrument for an eligible project,
(2)the guaranteed portion of any debt instrument could not be stripped from the non-guaranteed portion, and
(3)DOE must have a first lien on all project assets pledged as collateral for a guaranteed loan. The vast majority of comments DOE received were in opposition to those provisions. DOE is persuaded by the comments it received that identified a number of problems and difficulties with proposed sections 609.10(d)(3) and (4), and therefore is revising those sections in the final rule. Because the program focuses on innovative technologies, for which there often is not readily available private market financing at reasonable terms, and thus there is not always a readily available commercial market substitute for debt that does not receive a Title XVII guarantee, DOE has determined that an alternative approach is more appropriate. Sections 609.10(d)(3) and
(4)now provide that DOE may guarantee up to 100 percent of the amount of a loan for a project that receives a Title XVII loan guarantee, so long as all loan guarantees DOE issues for a particular project do not exceed 80 percent of Project Costs, which is a limitation imposed by Title XVII itself. As provided in the NOPR, section 609.7, DOE will evaluate the extent to which the requested amount of the loan guarantee, and the requested amount of guaranteed obligations are reasonable, relative to the nature and scope of the project. In accordance with Federal credit policy, DOE will issue 100 percent loan guarantees only if the loan is issued and funded by the Treasury Department's Federal Financing Bank. DOE also will issue loan guarantees for loans from private lenders where the guarantee sought is for less than 100 percent of the loan amount, and the final rule provides that if DOE guarantees 90 percent or less of a Guaranteed Obligation, the Eligible Lenders and other Holders will not be prohibited from separating the guaranteed portion from the non-guaranteed portion of the debt instrument. Thus, in cases where a lender issues a loan and receives a guarantee for more than 90 percent of the loan amount, the non-guaranteed portion cannot be stripped from the guaranteed portion. If a loan is not 100 percent guaranteed, it can be obtained from an approved Eligible Lender. Moreover, if 90 percent or less of a loan is guaranteed by DOE, the Department is allowing Eligible Lenders and other Holders to strip the guaranteed portion of a Guaranteed Obligation from the non- guaranteed portion. DOE believes that in such circumstances, DOE still will gain the benefit of private sector debt market underwriting, but at the same time will ensure that Eligible Projects are able to obtain necessary financing, and be able to do so on reasonable terms. In the unique context of loan guarantees for innovative energy projects, DOE believes that the changes made from the NOPR will assist projects in obtaining financing on reasonable terms. DOE recognizes that Federal credit policy generally encourages Federal credit programs to require that guaranteed obligations have a non-guaranteed portion. As noted above, the program focuses on innovative technologies for which there is often not readily available private market financing at reasonable terms, and thus there may not always be a readily available commercial market substitute for debt that does not receive a Title XVII guarantee. Therefore, the Department has concluded that these terms are necessary and appropriate to carry out the purposes of this program. DOE has determined that it should allow stripping on some partially guaranteed loans—i.e., only those on which DOE has guaranteed 90 percent or less of the Guaranteed Obligation. As noted above, the Title XVII program presents a unique situation—one in which loan guarantees will be issued for projects that otherwise might have little or no access to financing on reasonable terms, primarily because of the innovative nature of the eligible technologies and projects. Where DOE guarantees more than 90 percent of the amount of a Guaranteed Obligation, the guaranteed portion cannot be stripped from the non-guaranteed portion of the loan. In such situations, DOE is concerned that there may not be a sufficient amount of non-guaranteed debt to cause reasonable and appropriate debt market due diligence being performed. DOE notes that several of the commenters cited other Federal credit programs as justification for removing taxpayer protections proposed in the NOPR; in several cases Title XVII is significantly different from the programs cited. For example, financing under the TIFIA program is statutorily limited to 33 percent of eligible project costs, and therefore there is significant equity and lender participation. The Title XVII program is likely to be extremely large, with $4 billion of loan volume already provided under the 2007 Continuing Resolution, and $9 billion requested in the 2008 President's Budget. DOE already has pre-applications from the first solicitation requesting in excess of $25 billion in loan guarantees. The Title XVII program involves advanced technologies, which by nature are riskier than technologies already in commercial operation. DOE believes its resolution of the issues addressed above will help ensure that eligible projects of all sizes can gain access to credit on reasonable terms. DOE is concerned about project access to capital markets at reasonable interest rates and on reasonable terms and conditions, and believes that the modifications it has made to the regulations in this final rule address the commenters' concerns, while reducing the chance that unnecessary risks and costs are placed on the Federal taxpayers. It is customary and common practice in project financing for multiple lenders to enter into a *pari passu* structure with respect to assets pledged as collateral to secure debt. If such a structure were employed for the Title XVII program, DOE, pursuant to its Loan Guarantee Agreement, and lenders that held non-guaranteed debt, could share proportionately in the proceeds from the sale of project assets pledged as collateral if there were a default and the collateral was sold. In the NOPR, DOE interpreted Title XVII's requirement that DOE have a superior right to project assets pledged as collateral to prohibit *pari passu* structures, and as requiring all other lenders to be subordinate to DOE. In the final rule, DOE has modified its regulations to provide that DOE and the Holders of the non-guaranteed portion of the Guaranteed Obligations may share the proceeds received from the sale of project assets. The Department interprets the Title XVII provision requiring DOE to have a superior right to project assets pledged as collateral to mean that DOE retains superior rights within the meaning of the statute even if the Department shares the proceeds from the sale of project assets with the Holders of the non-guaranteed debt as long as DOE controls the disposition of all project assets. Under this interpretation, it is solely within DOE's authority to determine whether, and under what terms, the project assets will be sold at all. For example, DOE retains—as a superior right—the ability, even over the objections of other parties, to decide against the liquidation of project assets and instead to complete construction of the project, subject to appropriations, or to sell an incomplete project to an entity that will complete the project. The Department views this interpretation as being consistent with section 1702(g)(2)(A) of the Act, which provides that if DOE makes a payment on the guaranteed debt, the Department is subrogated to the rights of the Holder, including the right to “complete, maintain, operate, lease, or otherwise dispose of any property acquired pursuant to such guaranteed or related agreements, or permit the borrower * * * to continue to pursue the purposes of the project.” The Secretary cannot do any of those things unless the Secretary owns or controls the entire project. There is no provision, for example, for the Secretary to purchase the interest of the non-guaranteed lenders or holders of debt that is not supported by a Title XVII guarantee. Furthermore, section 1702(g)(2)(B) provides that the rights of the Secretary, with respect to any property acquired pursuant to a guarantee or related agreements, shall be superior to the rights of any other person with respect to the property, and this provision limits DOE's rights to the collateral to “property acquired pursuant to a guarantee.” Insofar as it is applicable here, the Department reaffirms the view it expressed in 1980 in connection with the loan guarantee program for alternative fuels, that while DOE is required under section 1702(g)(2)(B) to have a first lien on all project assets, the Department is not prohibited from negotiating and agreeing with parties about how the proceeds from the sale of collateral will be shared. Section 19 of the Federal Nonnuclear Energy Research and Development Act of 1974, Loan Guarantees for Alternative Fuel Demonstration Facilities, Pub. L. No. 93-577, as amended, (Alternative Fuels Act), contained provisions similar to section 1702(g)(2)(B). 2 Section 19(g)(2) of the Alternative Fuels Act provided, in part, that: 2 Section 19 appeared at 42 U.S.C. section 5919 and was repealed by Pub. L. No. 109-58, the Energy Policy Act of 2005, at section 1009(b)(12). The rights of the Secretary with respect to any property acquired pursuant to such guarantee or related agreements shall be superior to the rights of any other person with respect to such property. In the preamble to the final rule implementing section 19(g)(2) of the Alternative Fuels Act and in response to arguments by commenters concerning the issue of *pari passu* sharing of the project collateral, DOE stated as follows: Subsection 796.11(a)(9) of the proposed regulation required that the guaranteed loan not be subordinate to any other loan for the project and that the guaranteed loan be in a first lien position with respect to assets of the project and other collateral which are pledged as security for repayment of the guaranteed loan. DOE construes the Act to require this, and that only with regard to assets not directly related to the project, but which may be pledged as collateral, may a less than first lien position be acceptable to DOE. (45 FR 15468, 15471). DOE today adopts the same interpretation of Title XVII as it adopted in regard to nearly identical language in section 19(g)(2) of the Alternative Fuels Act. Thus, DOE interprets the language in Title XVII as requiring a first lien on all project assets, but as allowing DOE to treat assets pledged to secure a project loan that are not project assets the same as project assets. Consistent with the regulations concerning the disposition of proceeds from the sale of assets pursuant to the Alternative Fuels Act (section 796(f) and (k)), section 609.15 of today's final rule also provides that where DOE only guarantees a portion of a Guaranteed Obligation, the Secretary may enter into inter-creditor or other arrangements to share the proceeds from the sale of project collateral with lenders or other holders of the non-guaranteed portion of the Guaranteed Obligation. DOE may, at the discretion of the Secretary, share the proceeds from the sale of collateral. DOE is limited, however, to no greater than a pro rata share for the non-guaranteed Holder. However, in cases where DOE guarantees 100 percent of a loan, the loan must be issued to and funded by the Federal Financing Bank. In those circumstances, DOE will have a first lien priority on project assets pledged as collateral and all other debt for the project at issue must be subordinate to the Guaranteed Obligation. 2. Equity Requirements for Project Sponsors Title XVII does not itself impose any minimum equity contribution requirement on projects that receive Title XVII loan guarantees. Section 1702(c) provides that DOE can guarantee loans for no more than 80 percent of the cost of a project, but does not place any requirements on where or how a Project Sponsor may obtain other funds for an Eligible Project. Nonetheless, in the NOPR, the Department explained that DOE believed it was prudent to require Project Sponsors to have a substantial equity stake in a project before the project could receive a Title XVII loan guarantee. Thus, DOE proposed (in section 609.7(a)(6) of the proposed regulations) that applications would be denied if “[t]he applicant will not provide a significant equity contribution.” Most commenters agreed that the regulations should contain an equity contribution requirement, and that the regulations should not set a fixed numeric minimum equity percentage threshold or requirement. Commenters said some projects might have good reasons for not meeting some numeric threshold, and that a specific numeric threshold might result in the rejection of otherwise meritorious projects. Some commenters objected even to DOE requiring by rule that projects have a “significant” equity contribution. A Title XVII loan guarantee will be offered only to projects where the project sponsors make a significant equity contribution toward the Project Cost. If private investors or project sponsors do not see fit to make any significant equity investment in a capital project, it is hard to see why DOE should back loans for the project with a Federal guarantee. Such projects might well be appropriate for grant money or research and development assistance, but in light of the overall purposes of Title XVII and the statutory requirement that DOE can issue loan guarantees for no more than 80 percent of project cost, the Department believes it would not be prudent to eliminate any equity requirement for the program. It is in the interest of the Federal government to ensure that borrowers have a significant equity interest in the assets to ensure the financial success of the project. Eliminating the requirement might result in project sponsors financing a project entirely through a combination of government-backed loans, and other loans and government assistance. The Department does not believe such an approach would be consistent with the establishment of an overall sound Title XVII program. Furthermore, DOE will consider the type and degree of equity contribution proposed for an eligible project for a Title XVII loan guarantee to determine whether such contribution is significant and meets the eligibility requirements for a loan guarantee agreement. In evaluating whether a borrower or project sponsor is contributing significant equity to a project, the Department will consider “equity” to be cash contributed by the Borrowers or other principals. Equity does not include proceeds from the non-guaranteed portion of any debt supported by a Title XVII loan guarantee or from any other non-guaranteed debt. The value of other forms of government financial assistance or support also does not constitute “equity.” The Department has set forth this definition of “equity” in section 609.2 of the final rule. At the same time, DOE agrees with commenters that the Department should not by regulation establish a specified numerical minimum on the equity contribution to an Eligible Project. There likely will be a myriad of financing arrangements and differing circumstances for the disparate types of technologies and projects potentially eligible for Title XVII loan guarantees. The Department believes, based on the record before it, that it should not set at this time a numerical minimum for the equity contribution to an eligible project. The determination of the significance of the equity contribution cannot practicably be made at the time that the loan application is filed. Thus, DOE has revised section 609.7(a)(6) of the NOPR which stated that an Application will be disqualified if “[t]he applicant will not provide a significant equity contribution” by deleting the words “a significant” and inserting the word “an.” DOE has retained section 609.7(b)(7) which provides that DOE will consider “[t]he amount of equity commitment to the project by the Applicant and other principals involved in the project” when evaluating Applications for Title XVII loan guarantees. DOE will evaluate the amount of equity that will be contributed to a project when evaluating a project against other projects. Section 609.10(d)(5) of today's final rule, however, provides that the Project Sponsors must, at a minimum, have a significant equity investment in a project. 3. Other Governmental Assistance Section 609.7(b)(9) of the NOPR provided that DOE will consider “whether and to what extent the Applicant will rely on other governmental assistance” when evaluating Applications for Title XVII loan guarantees. In the NOPR preamble, the Department noted that the receipt of other government assistance generally would be viewed negatively. (72 FR 27476). Several commenters stated that DOE should consider other governmental assistance as a positive and not a negative evaluation factor. As noted above, those commenters asserted that the receipt of other assistance from Federal, state or local governments should be viewed as indicating support for a project and thus adding to its commercial viability, rather than reflecting financial and commercial weakness. Most commenters that expressed a view did believe that it would be appropriate for DOE to at least consider the receipt of other government assistance in evaluating Applications. See e.g. Bechtel at 6, Eastman at 3; and Goldman Sachs at 9. DOE has retained section 609.7(b)(9) in the final rule as it was proposed in the NOPR. As DOE stated in the NOPR, we recognize that in certain circumstances, multiple forms of Federal assistance to the same project could enhance important national energy policy priorities. We believe the current language in section 609.7(b)(9) is sufficient to address these circumstances. 4. Credit Assessment and Rating Requirements Section 609.6(b)(21) of the NOPR required the Applicant to submit with its Application a credit assessment for the project without a loan guarantee “where the size and estimated cost of the project justify such an assessment.” Section 609.9(f) of the NOPR proposed to require that not “later than 30 days prior to closing, the applicant must provide a credit rating from a nationally recognized rating agency reflecting the Final Term Sheet for the project without a Federal guarantee.” Most commenters complained that the rating agency requirements proposed in the NOPR would impose unnecessary costs and burdens on project sponsors, with little corresponding benefit to the Department. (Bechtel, at p. 2-3) Other commenters suggested that the requirement for a credit assessment be eliminated from the final rule. (e.g. Goldman Sachs at p. 9) Two commenters proposed a threshold of $25 million for waiving the credit rating requirement. Another expressed the view that DOE should be able to waive the requirement where appropriate. Two commenters thought that a waiver should not depend on project size, but rather should depend on other factors as well such as the ratio of project debt to sponsor equity. DOE has retained the credit assessment and rating requirement provisions, 609.6(b)(21) and 609.9(f). DOE believes that these requirements will be beneficial in aiding the Department when it determines the credit subsidy scores for particular projects, and when it assesses and evaluates the risks and benefits of particular projects. DOE notes the distinction between the credit rating on the overall project debt which lenders or project sponsors may wish to obtain for pricing the debt; and the credit rating without considering the benefit of the guarantee, which will inform DOE's evaluation of the project and estimation of the Credit Subsidy Cost. DOE agrees that in some circumstances, it may be desirable to waive a credit rating requirement. For example, projects for which project costs fall below a certain level may not warrant the cost of a credit rating, should the cost prove large in comparison to the overall cost of the project. Therefore, in the final rule DOE has added to section 609.9(f) the following language: “where the total Project Cost for an Eligible Project is projected to exceed $25 million.” The Department selected this number because it believes any project that costs below that amount may find it uneconomic to obtain a credit rating and to participate in the Title XVII program. By putting this threshold in place, DOE seeks to support smaller projects. C. Project Costs Sections 609.2 and 609.12 of the proposed regulations defined “Project Costs” as those costs, including escalation and contingencies, that are necessary, reasonable, customary, and directly related to the design, engineering, financing, construction, startup, commissioning and shake down of an Eligible Project. Conversely, costs excluded from the definition of Project Costs included initial research and development costs, the Credit Subsidy Costs, any administrative fees paid by the Project Sponsors, and operating costs after the facility has been placed in service. *Public Comments:* As noted above, the Department intends to implement Title XVII through the “self-pay” authority provided in the Act. Thus, DOE has no current intention to seek appropriations to pay for the Credit Subsidy Costs of any Title XVII loan guarantees, but rather project sponsors will be required to pay those costs before DOE enters into a loan guarantee agreement. Pursuant to FCRA, the Credit Subsidy Cost reflects the net present value of the estimated payments to or from the Government. It is impossible to tell at this point what the Credit Subsidy Cost will be for any particular project. Most commenters argued that Credit Subsidy Costs and Title XVII administrative fees that are paid by a project sponsor should be treated as Project Costs. These commenters maintain that the exclusion of Credit Subsidy Costs and administrative fees from Project Cost is inconsistent with the treatment of similar costs in commercial project financing and in other Federal programs. These commenters also state that there is no provision in either FCRA or in OMB Circular No. A-129 that prohibits the inclusion of these costs in a project's financing package. They contend that the inclusion of such fees or costs in the financing package neither increases project risk, nor diminishes the reasonable prospect of repayment of the loan. (See e.g. NEI at pp. 18-19; Nuclear Utilities, at p. 18; and FES at p. 2) TXU similarly supported the inclusion of Credit Subsidy Costs and administrative fees in total Project Costs and supported making them eligible, at least in part, for the federal loan guarantee. TXU added that total project costs should include 100 percent of the costs to bring a plant into commercial operation, including all financing and start-up costs. (TXU at 7). S&P, however, took a different position from most commenters, and asserted that DOE's proposed definition of the project's total costs is consistent with general market practice, except that, if projects obtain a guarantee from a monoline insurer, the premium paid for such a wrap is generally included in the total cost of the project to be financed. However, its exclusion here appears consistent with the intent of [Title XVII], namely to prevent the subsidy fee itself from potentially becoming a taxpayer liability in the event of default. (S&P at 2). USEC also asserted that Credit Subsidy Costs and administrative fees should be counted as Project Costs. USEC's comments also identified other costs that should be specifically considered to be Project Costs. These include: general and administrative costs; performance incentives paid to employees or officers working on the project (because the project is benefiting from the increased performance); research, development, and demonstration costs that are directly related to the project; and expenses incurred after start-up. USEC said that by excluding potentially large, post-start-up costs, DOE would essentially be requiring an additional equity investment by the project sponsor. USEC argued that DOE should allow these costs as part of Project Costs and evaluate them on a case by case basis when reviewing the economics of a project. (USEC at 6-7). Beacon recommended that the final rule allow “as an option” the inclusion of Credit Subsidy Costs and administrative fees in the definition of Project Costs. Beacon said that such costs could pose a substantial burden on small businesses and development stage companies unless they are included in Project Costs. (Beacon at 1). Goldman Sachs also recommended that Project Costs be defined to include Credit Subsidy Costs and the administrative cost of issuing a loan guarantee. Goldman Sachs further recommended that Project Costs be defined to include the costs of administrative services provided by affiliates; development expenses; pre-completion operation and maintenance costs; and costs of procurement and testing. Project financings, according to Goldman Sachs, customarily cover all costs associated with the construction of the project, including fees and expenses. To require the project sponsor to cover these costs, in Goldman Sachs' view, would either eliminate the non-recourse nature of the financing or mean that the lenders would have to cover these amounts with a non-guaranteed loan. Moreover, whereas the proposed rule states that the loan guarantee will cover only principal and interest, Goldman Sachs asserted that the loan guarantee should cover all borrower obligations, including without limitation default interest and post-petition interest, reimbursement of letter of credit drawings, prepayment premiums, payments under interest rate hedging agreements, fees, expenses, and indemnification payments. Goldman Sachs said this would be consistent with the definition of “obligations” in project finance loan agreements. (Goldman Sachs at 6). Ameren too opposed the NOPR's exclusion of certain categories of costs from the definition of Project Costs. The NOPR, in Ameren's view, does not explain why the excluded categories are less suitable for a guarantee and Ameren said that the exclusions are “not conducive to encouraging innovation.” (Ameren at 3-4). *DOE Response:* For any project that is granted a Title XVII loan guarantee, the Credit Subsidy Cost and administrative costs charged by DOE, are costs that must be paid by the borrower and are necessary terms and conditions of receiving the guarantee. As stated in the S&P comments, the DOE position is consistent with the intent of Congress to require such costs be paid by the borrower. Allowing these fees to be included in the Project Costs would increase the amount of debt that could be supported by a Title XVII loan guarantee. As funding is fungible, allowing the Credit Subsidy and Administrative Costs to be financed with the Title XVII loan guarantee could in effect transfer these costs to the taxpayer in the event of default. Furthermore, consistent with the requirements of Public Law 110-5 and as in the NOPR, the final regulations prohibit a Borrower from paying any Title XVII Credit Subsidy Cost with funds obtained from the Federal government, or from a federally guaranteed loan. While some commenters asserted that other Federal agencies permit items such as Credit Subsidy Costs or similar expenses and administrative fees to be covered by the Federal guarantee issued pursuant to their loan guarantee programs, the Credit Subsidy Cost under Title XVII reflects the subsidy cost of the loan guarantee, as defined in FCRA. It is important to note that this is not comparable to the fees cited in comments which may offset, but do not reflect the explicit subsidy cost for the individual loan guarantee. To the extent commenters recommended other costs that are not specifically listed in the final regulations for inclusion in the definition of eligible Project Costs, the Department rejects those comments. The Department sees no adequate basis for further revising the rule's definition of Project Costs except as otherwise provided in the final rule. However, DOE again stresses, just as it did in the NOPR, that the purpose of the Title XVII Loan Guarantee Program is to foster the deployment of qualified innovative technologies that would reduce or sequester air pollutants or anthropogenic greenhouse gas emissions; it is not to assist or support high-risk research into or development of new technologies. Nor is it to assist in the ongoing commercial operations of successful projects. Therefore, costs related to the initial research and development of a new technology or to operating costs will not be accepted as Project Costs for purposes of such guarantees. D. Solicitation Section 609.3 of the proposed regulations required DOE to issue a solicitation to start the process of accepting, reviewing, and ultimately granting applications for Title XVII loan guarantees. This section also set forth certain minimum requirements for each solicitation, including the fees that would be required of persons invited to submit Applications and the criteria that the Department would use to weigh competing Pre-Applications and Applications and to make ultimate selections for loan guarantees. The proposed regulations set forth programmatic, technical, and financial factors, including the percentage of the loan guarantee requested, to be used by DOE to select projects for loan guarantees. *Public Comments:* Several commenters stated that DOE should use a “rolling” or “open” application process, as opposed to only accepting Applications for a limited time in response to a particular solicitation. Commenters from the nuclear industry supported this recommendation by pointing to difficulties that may be faced by nuclear project sponsors with a project development timetable that does not match a DOE solicitation. These commenters also noted that DOE is not in a position to assess with precision the market forces that will govern the number of new projects potentially eligible for loan guarantees, or when those projects will need loan guarantees, and contended that other major federal loan guarantee programs—including TIFIA, Ex-Im Bank and OPIC—operate with an open or ongoing (rolling) application process. (NEI at pp. 28-29; Nuclear Utilities at p. 17) The Nuclear Utilities ask that DOE adopt a flexible “open” application process for large multi-year projects involving more than $2 billion and/or 1,000 MW of generating capacity. (Nuclear Utilities at p. 17) Citi stated that “[b]y accepting applications only in response to a particular solicitation, the DOE loan guarantee process would be unduly prejudicial to projects that happened to have matured to produce the required pre-application materials in the narrow timeframe of a solicitation.” Citi requested clarification that DOE will accept and review applications for eligible projects at any time when sponsors believe that the markets are ready for their investment. This allegedly would not preclude DOE from opening or closing the program for specific technologies at various times. (Citi at 5). Goldman Sachs, Bechtel and USEC likewise recommended an open application process but also supported a simplified three-step process (application, followed by a conditional commitment, followed by negotiation and execution of a loan guarantee agreement). (Goldman Sachs at 8, Bechtel at 7, and USEC at 6) (Bechtel at 6-7). Bechtel indicated that this three-step process is used by other federal agencies. (Bechtel at 7) Beacon further recommended that language in proposed § 609.4 stating that the Pre-Application must meet all requirements in the solicitation and in the final rule should be modified by changing “must” to “should” or “is expected to.” This change would prevent pre-applications from automatic disqualification if they are missing one item, and would make § 609.4 consistent with § 609.5. (Beacon at 3) *DOE Response:* While DOE agrees that an “open” or “rolling” process for Title XVII loan guarantee program applications would give applicants greater flexibility in deciding when, or if, to submit an application to DOE, adopting such a structure at this time would interfere with the Department's ability to select which of the technologies that Title XVII makes statutorily eligible for loan guarantees should be the focus of any such authority made available by Congress. If DOE were to adopt the “window is always open” and “first come first served” approach to Title XVII, as some commenters appear to advocate, then it is possible that all loan guarantee authority provided by Congress at any particular time could be absorbed by only one or a few very large projects, to the exclusion of smaller projects. This could have the result of the program focusing heavily on only certain eligible technologies merely through operation of the rule itself. Moreover, there is no certainty that the projects first through the application door would be in the areas that either the Department or Congress wished to promote at the particular time. DOE should be able to tailor loan guarantee availability to particular technologies and particular projects that are the most promising and that in the Department's judgment will most benefit the Nation. Finally, adopting the open application approach could eliminate the Department's ability to have projects compete against one another for the available loan guarantee authority. Especially in the situation where available authority is likely to be insufficient to satisfy all loan guarantee requests, DOE believes it is desirable for there to be competition among projects for the available loan guarantees, rather than for the authority to be used up on a first come first served basis regardless of the relative merits of potentially eligible projects. At some future time, after substantial experience has been gained in the administration of the Title XVII program, it may be appropriate and possible for the Department to reconsider this position. In the meantime, however, DOE believes it is appropriate to implement the program by requiring the Department to issue a solicitation for projects, tailored broadly or narrowly as the Department sees fit at the time and in light of programmatic objectives. The Department thus has decided to adopt a solicitation-based approach to the implementation of Title XVII, as was proposed in the NOPR. The rule provides that each solicitation must set forth relative weighting criteria specifying the factors that will be used to evaluate applications and the relative weighting assigned to each criterion. DOE has considered, but has decided not to require by rule, competitive procedures or requirements to be employed when the Department evaluates applications for loan guarantees. As a practical matter, loan guarantee applications submitted in response to solicitations will be competing against each other for available loan guarantee authority. This enables and indeed requires competition to take place by requiring that each solicitation set forth relative weighting criteria by which applications for loan guarantees will be judged. In that manner, applications will not necessarily be “competed” one against the other, but the evaluation process nonetheless will result in the applications being ranked in such a manner that the applications that best fulfill statutory and solicitation criteria from the Department's perspective will receive higher scores. DOE is mindful that certain projects, *e.g.* nuclear power plants, require long lead times prior to the submission of a loan guarantee application, but believes that solicitations can be devised and tailored to particular technologies that accommodate such long lead time requirements consistent with the overarching legislative purpose of promoting technologies that further Title XVII policy goals. Additionally, DOE does not believe it is appropriate to make the language change requested by Beacon to section 609.4 of the final regulations. The listed items to be included with Pre-Application submissions are intended to be mandatory. However, the Department clarifies that a Pre-Application will not necessarily be rejected simply because one or even a few items are not in final form when they are submitted with the initial Pre-Application submission. The Department will exercise reasonable discretion in giving Applicants an opportunity to complete their Pre-Application submissions in a timely manner within the open period provided by a solicitation. DOE, of course, may reject any Pre-Application or Application that it considers incomplete. E. Payment of the Credit Subsidy Cost Section 1702(b) of the Act states that: “No guarantee shall be made unless
(1)an appropriation for the cost has been made; or
(2)the Secretary has received from the borrower a payment in full for the cost of the obligation and deposited the payment into the Treasury.” (42 U.S.C. 16512) Section 20320(a) of P.L. 110-5, however, only authorized DOE to accept Credit Subsidy Cost payments from Borrowers to pay the full Credit Subsidy Costs of loan guarantees with respect to the $4 billion in loan guarantee authority authorized by the CR. Moreover, DOE's intent continues to be to implement the Title XVII program only through the self-pay authority of section 1702(b)(2). As stated in the NOPR, DOE interprets section 1702(b) as authorizing either an appropriation or payment of the credit subsidy cost in full by the Borrower, but Title XVII does not allow and DOE will not allow partial payment of the Credit Subsidy Cost by the Borrower with the remainder covered by a Congressional appropriation. *Public Comments:* Several commenters recommended a transparent formula for the calculation of each project's Credit Subsidy Cost. They contend that project sponsors need a reasonably accurate estimate of the subsidy cost early in the development process in order to support multi-billion dollar investment decisions. Otherwise, project sponsors will be forced to engage in lengthy negotiations before they know the amount of the Credit Subsidy Costs they will be required to pay, and before they can properly assess their interest in the Title XVII program. ( *e.g.* , Dominion at 9; Southern at 2) For regulated electric companies in particular, negotiation with state regulatory bodies concerning recovery of project costs arguably will be impossible without some reasonable estimate of the Credit Subsidy Cost. NEI suggested that DOE develop written guidance providing the specific considerations that will enter into the determination of the Credit Subsidy Cost for a project and modify the proposed rule to:
(1)Provide for early disclosure to an applicant of how DOE expects to apply those considerations in determining the Credit Subsidy Cost for the applicant's project; and
(2)afford the applicant an opportunity to respond in writing for the purpose of allowing DOE to determine whether additional considerations and analysis warrant a re-estimate. (NEI at 17-18). Other commenters seek clarification that when determining subsidy costs, DOE and OMB will evaluate the entire risk profile of the project, including but not limited to creditworthiness of the project and, to the extent of the equity contribution, the project sponsor; the Borrower's exposure to market and commodity risks; and the Borrower's exposure to vendor cost increases or construction delays. According to these commenters, the Department should consider that the more creditworthy the project is, the lower the subsidy cost should be. They ask that the final regulations recognize that greater equity investment, liquidity, and management experience reduce default risk and, therefore, should result in lower subsidy cost. (NEI at 17-18; and Southern at 2) JP Morgan maintained that the magnitude of the subsidy cost could have a significant impact on a borrower's interest in a loan and a lender's willingness to provide the financing. Given the uncertainty of the Credit Subsidy Cost calculation, JP Morgan recommended that DOE provide borrowers with an option to withdraw their applications upon DOE's notification to the borrower of the subsidy cost to be charged. Similarly, JP Morgan asserted that lenders should be permitted to withdraw any commitments upon notification of the subsidy cost, and that DOE's interpretation of § 1702(b) in the NOPR should be reconsidered in order to permit borrowers to pay part of the Credit Subsidy Costs where there has been a congressional appropriation. (JP Morgan at 2) USEC asserted that the Credit Subsidy Cost should be small in order to ensure repayment (commensurate with other federal loan guarantees). Apparently in order to keep the Applicant's share of Credit Subsidy Costs small, USEC recommended that DOE seek appropriations for credit subsidy costs because the overall purpose of the Title XVII program is to foster commercial deployment of new and innovative technologies. (USEC at 5). Beacon also maintained that § 609.9(d)(1) of the proposed rule should be modified to permit partial self-funding/partial appropriation of the Credit Subsidy Cost. Specifically, Beacon recommended that DOE should change the parenthetical “(but not from a combination)” in § 609.9(d)(1) to “(including a combination)”. (Beacon at 6). Ameren, too, contended that the NOPR should be revised to allow for the possibility that Congress will appropriate money for payment of the Credit Subsidy Cost. Ameren stated that the regulations should not always require applicants to pay the Credit Subsidy Costs for a guaranteed loan, and encouraged DOE to follow the flexible approach used by Ex-Im Bank. (Ameren at 4-5). *DOE Response:* The Department has decided not to alter the proposed regulation dealing with the calculation of Credit Subsidy Costs. With respect to the issue of transparency, the Department certainly understands the need for and importance of a mechanism to allow potential participants in the Title XVII program to calculate an approximate Credit Subsidy Cost for the loan guarantee they are seeking from DOE. The Department currently is working to develop a methodology that can be used to calculate the Credit Subsidy Cost for individual projects under this program. With respect to the comment indicating that the credit subsidy cost should be small, DOE must calculate the Credit Subsidy Cost in accordance with the Federal Credit Reform Act. DOE will calculate the Credit Subsidy Cost of any loan guarantee on a case-by-case basis in accordance with FCRA and OMB Circular A-11. Per the definition in FCRA, the credit subsidy cost reflects the net present value of estimated payments from the government ( *e.g.* default claim payments) and to the government ( *e.g.* , recoveries), discounted to the point of disbursement. For any project, the terms and conditions of the guaranteed debt, the risks associated with the project, and any other factor that affects the amount and timing of such cash flows will affect the credit subsidy cost calculation. Factors that mitigate risks will generally lower the credit subsidy cost. We note that the approach used by Ex-Im and recommended by Ameren does not apply here because the fees charged by Ex-Im do not reflect the subsidy cost for the loan guarantee. The Department and the Office of Management and Budget
(OMB)recognize the value to project sponsors and lenders of knowing the earliest reasonable time the appropriate credit subsidy cost for the sponsor's desired loan guarantee. The Department and OMB further recognize that the two agencies must work together to produce any preliminary credit subsidy cost estimate. Accordingly, the Department and OMB are committed to making every effort to agree upon and provide to project sponsors, at the time a Term Sheet is provided, a preliminary credit subsidy cost estimate for the desired loan guarantee, based on information available to the Department and OMB at that time. The final credit subsidy cost determination can only be made at the time of the Loan Guarantee Agreement, and may be different from the preliminary credit subsidy cost estimate, depending on project-specific and other relevant factors including final structure, the terms and conditions of the debt supported by the Title XVII guarantee, and risk characteristics of the project. We note that Applicants are free to withdraw their Applications at any time if they find that the Credit Subsidy Cost is more than the Applicant is willing to pay. The right of an Applicant to withdraw its application does not relieve the Applicant of any obligations to DOE at the time of the withdrawal (including, for example, the payment of outstanding or accrued administrative fees). On the other hand, we do not agree that lenders in all circumstances should similarly be permitted to withdraw their commitments upon notification of the Credit Subsidy Cost, as recommended by some commenters. The rights of lenders to withdraw will turn on the nature of the commitment that the lender has given to the Borrower. We also reject the recommendation that Applicants should be able to make partial payment of the Credit Subsidy Cost and rely on appropriations for the remainder of the Credit Subsidy Cost for a particular project. As indicated in the NOPR, DOE interprets section 1702(b)(2) of the Act as not permitting partial payment of the Credit Subsidy Cost by the Borrower, with the remainder coming from an appropriation. DOE believes the statutory language is clear in that regard, but even if it were determined to be ambiguous, DOE would exercise its policy discretion to interpret the statutory provision in the manner set forth herein. Consequently, DOE adheres to the interpretation of this provision set forth in the NOPR, and retains in the final rule the all or none principle with respect to the payment of Credit Subsidy Costs, unless otherwise provided by statute. The Department notes that the final rule does not prohibit the use of appropriations to pay for those Credit Subsidy Costs—indeed, Title XVII explicitly allows that. But DOE has no current intention to seek appropriations to pay Credit Subsidy Costs for any projects. F. Assessment of Fees Section 1702(h) of the Act requires DOE to “charge and collect fees for guarantees” to cover the administrative cost of issuing a Loan Guarantee. Proposed sections 609.6, 609.8, and 609.10 provided that DOE would collect fees for administrative expenses covering all phases of an Eligible Project. As defined in proposed section 609.2, these fees consist of the administrative expenses that DOE incurs during:
(1)The evaluation of both the Pre-Application, if a Pre-Application is requested in a solicitation, and the Application for a loan guarantee;
(2)the offering of a Conditional Commitment, the execution of the Term Sheet, and the negotiation and closing of a Loan Guarantee Agreement; and
(3)the servicing and monitoring of the Loan Guarantee Agreement, including during construction, start-up, commissioning, shakedown, and the operational phases of an Eligible Project. *Public Comments:* Several commenters stated that administrative fees should be known, quantified, and/or fixed at the time an application is submitted to DOE. Beacon, for example, recommended that all fees should be quantified in advance as a percentage of the loan amount or in a formula based on the loan amount, and said DOE should make a conforming change to the proposed rule. Beacon commented that knowing the basis of fee amounts arguably would facilitate the calculation of project costs and alleviate the burden of cost uncertainties on small businesses and development stage companies. (Beacon at 1). Ameren sought clarification as to how DOE anticipates recovering the costs associated with evaluation of Pre-Applications that progress no farther in the process. Ameren asserted that the costs should be borne by DOE rather than from funds made available for the issuance of loan guarantees. Ameren stated that “[i]t would be inappropriate to reduce funds specifically appropriated for loan guarantees to cover Department administrative expenses that the Department has chosen to bear.” (Ameren at 5-6). *DOE Response:* DOE recognizes the concern of several commenters on the advantages of a well-understood formula for calculating administrative fees. The Department may at some future time take action with respect to administrative fees but is not doing so now. The fees are intended to recover only DOE's administrative costs in managing the Loan Guarantee Program. A fee schedule will be published by DOE in the near future. We reject Ameren's recommendation that the costs of administering the Loan Guarantee Program should be borne by DOE. Section 1702(h) of the Act calls for DOE to “charge and collect fees * * * sufficient to cover applicable administrative expenses” of the Title XVII program. Therefore, while DOE does have discretion to determine which administrative expenses should be properly deemed “applicable” to this program and/or to particular applications and thus recovered from program applicants or participants, the Department certainly is not free to determine that it will recover none of its administrative costs from applicants or participants and, instead, fund the costs of the program through appropriations from Congress. G. Eligible Lenders and Servicing Requirements The NOPR stated that participating Eligible Lenders or other servicers must meet certain eligibility, monitoring, and performance requirements. These requirements, which were set forth in sections 609.2 and 609.11 of the proposed regulations, were intended to ensure that the Eligible Lender or other servicer had the financial wherewithal and appropriate experience and expertise to meet its fiduciary obligations in connection with the debt guaranteed by DOE. Section 609.10(g) of the proposed regulations also provided that a lender must provide written notification to DOE prior to the assignment or transfer of any portion of a Guaranteed Obligation. *Public Comments:* TXU stated that “[a]ny lender providing debt capital to a project on a limited recourse basis would be performing an exhaustive due-diligence process, using appropriate expertise to analyze the risks.” TXU asserted, therefore, that the duty of care specified in the regulations is unnecessarily duplicative of the process that the lender will use irrespective of the Department's involvement as guarantor. Additionally, TXU contended that any specific duties such as notice requirements should be assigned to an Administrative Agent or Lending Agent and that debt held by other lenders should be freely marketable without administrative burden on all lenders. (TXU at 8). WMPI Pty., LLC
(WMPI)recommended that DOE revise the requirements proposed for lenders to take into account that eligible projects are more likely to be financed in capital markets by a group of bondholders through a public offering than by a single lender. Specifically, WMPI pointed out that a commitment letter would not be issued where there is a bond issuance and recommended that DOE recognize this fact in the final rule. WMPI also asserted that the final regulations should be revised to take account of the fact that interest charges and repayment schedules are not known in advance of a bond sale and, therefore, regulations calling for copies of loan documents containing all of the terms and conditions of the loan, including interest charges and principal repayment schedules, will be inapplicable if the financing is done through a bond public offering. (WMPI at 11-13). Beacon recommended that the language “including a qualified retirement plan, or governmental plan” be deleted from the definition of Eligible Lender in proposed section 609.11(a)(1) because small businesses and development stage companies may need to approach financial institutions that may not have the specified plans. Beacon also recommended the entirety of proposed section 609.11(a)(6) be deleted. That language would require eligible lenders to have experience as the lead lender or underwriter by presenting evidence of its participation in other energy-related projects. Beacon maintains that this requirement is unduly restrictive because not many lenders have such experience and it is also generally irrelevant since the loan guarantee program is limited to new or significantly improved technologies. (Beacon at 7). Goldman Sachs asserted that, except for certain critical requirements ( *e.g.* , eligible lenders are disqualified if they have been disbarred from participation in a Federal government contract), the provisions in the NOPR regarding the eligible lender should apply only to the lead lender. This is necessary, Goldman Sachs argued, because only a small number of lenders will be able to meet the standards set forth in the NOPR, *e.g.* , will have the experience originating and servicing loans similar in size and scope to the projects that will be the subject of loan guarantee applications; or be able to demonstrate experience as the lead lender in other energy-related projects. Particularly as regards the expected financing needs of nuclear power projects, Goldman Sachs maintained that the potential lending pool should be kept as large as possible. (Goldman Sachs at 8). *DOE Response:* The Department endorses the idea of maximizing the pool of Eligible Lenders and of allowing the use of loan servicers that may not be Eligible Lenders but that otherwise meet all applicable standards. In addition, in response to comments that DOE finds persuasive, the Department has eliminated proposed section 609.11(a)(1) from the final rule. Furthermore, while DOE rejects Beacon's suggestion that the Department delete the entirety of section 609.11(a)(6) of the proposed regulations, we did expand the definition. While it is arguably true that the pool of servicers might be increased even further if section 609.11(a)(6) were completely eliminated, deletion of this provision altogether would not be consistent with DOE's desire to establish a program where there was a reasonable assurance of repayment in connection with guaranteed loans. We note, however, that in the final rule, section 609.11(a) and
(b)do not apply to a loan servicer unless the servicer is also the Eligible Lender. In response to WMPI's comments, DOE believes that today's final rule is flexible enough to support bond financing. Among other things, the definition of “Holder” is sufficiently broad to cover the issuers of that type of debt. H. Federal Credit Reform Act of 1990
(FCRA)FCRA provides that for any federal credit program, new direct loans and loan guarantees may not be made unless authority has been provided in advance in appropriations act(s). See 2 U.S.C. 661c(b). Title XVII authorizes the issuance of loan guarantees where the credit subsidy cost, calculated in accordance with FCRA, is paid either through appropriations or by the borrower receiving the loan guarantee from the Department. On February 15, 2007, Public Law 110-5 was enacted. That statute provides DOE with the necessary authority, consistent with FCRA and section 1702, to guarantee in the aggregate up to $4 billion in loans for Title XVII projects. The authority to issue guarantees, however, was limited to Borrowers who pay the applicable Credit Subsidy Cost. No general funds are available to pay Credit Subsidy Costs. *Public Comments:* A number of commenters questioned DOE's view that authority in an appropriations act is needed for the issuance of Title XVII loan guarantees. These commenters pointed to a statement by the Government Accountability Office
(GAO)that Title XVII itself provides adequate authority for DOE to issue loan guarantees without the need for any additional authority in an appropriations act, provided DOE employs the Title XVII “self-pay” authority. Specifically, by letter dated April 20, 2007, GAO indicated its belief that because Title XVII allows for Credit Subsidy Costs to be covered by appropriations *or* by a payment from the borrower, where the recipient of a loan guarantee fully funds the Credit Subsidy Cost for its loan guarantee, no appropriations act authority should be required. Some commenters added that if DOE plans to adhere to the view that appropriations act authority is required for all Title XVII loan guarantees, it must seek and obtain an amendment to Title XVII or sufficient appropriations act authority to allow the Title XVII loan guarantee program to succeed. *DOE Response:* The Department does not interpret section 1702(b) of the Act as providing either budget authority or other authority to make any individual loan guarantee, as is required by FCRA. Instead, DOE reads the Act and FCRA in harmony, which means that while Title XVII authorizes DOE to carry out the loan guarantee program, the Department may not issue any loan guarantees until it has received budget authority or is otherwise provided authority to make guarantees in an appropriations act. While the Act authorizes payment from a borrower as an alternative source of funding, any such alternative source of funding does not relieve DOE from the necessity of obtaining authority in an appropriations act for the issuance of any loan guarantees, even in cases where the Credit Subsidy Cost will be paid by the borrower or project sponsor and no appropriations are used to pay such costs. Congress acted consistent with this interpretation of Title XVII and section 504 of FCRA when, in section 20320 of Public Law 110-5, it authorized a $4 billion loan guarantee limitation and required the use of the self-pay authority of Title XVII for the loan guarantee authority provided by Public Law 110-5. In the absence of the Title XVII authorization for DOE to receive borrower-paid funds to pay for the Credit Subsidy Cost of a particular loan guarantee, DOE would not have the ability to defray the Credit Subsidy Costs for loan guarantees in that manner. Title XVII clearly authorizes those costs to be covered either with appropriated funds or with borrower paid funds. Furthermore, Title XVII and FCRA, read together, require DOE to obtain authority in an appropriations act to issue loan guarantees, even when employing the Title XVII self-pay authority. Section 20320 of Public Law 110-5 does three things:
(1)It provides a loan guarantee volume limitation of $4 billion;
(2)it requires that borrower self-pay the Credit Subsidy Cost; and
(3)it prohibits the use of general fund appropriations for such costs. In enacting Public Law 110-5, Congress acted consistently with the Administration's view that authority in appropriations acts is required in advance before a loan guarantee can be issued. Therefore, for the $4 billion authorized by Public Law 110-5, DOE will implement the program with self-pay authority. Furthermore, DOE intends to continue to implement the Title XVII program through the self-pay authority provided by the Act and has no current intention to seek appropriations to pay Credit Subsidy Costs for any project. I. Default and Audit Provisions Title XVII, sections 1702(g) and 1702(i), require DOE to promulgate regulations to address default and audit requirements (42 U.S.C. 16512(g), (i)). Sections 609.15 and 609.17 of DOE's regulations, respectively, address these requirements. These provisions will apply to all loan guarantees issued under the Title XVII program. *Public Comments:* USEC expressed concern that the Department's assertion of audit authority could be interpreted as requiring application of the Federal Acquisition Regulations (FAR). (USEC at 6) Other parties were concerned that after-the-fact audits could reduce the amount of project costs and the extent of the guarantee coverage. According to Bechtel, in particular, such a requirement would make the guarantee a conditional commitment. (Bechtel at 5-6) These parties pointed out that in project financing, an independent engineer is customarily used to review and certify costs prior to each loan disbursement and they recommended this approach be adopted in DOE's regulations. In Bechtel's view, once a disbursement is made, the guarantee should be unconditional and not subject to reduction in a post-disbursement audit. (Bechtel at 5-6). Goldman Sachs recommended that the final rule clearly provide for the guarantee to be available in the case of defaults other than non-payment of principal and interest without the need for a DOE determination of material effect. Goldman Sachs maintained that as proposed, the rule would prevent lenders from making a demand on the guarantee in the case of defaults other than non-payment of principal and interest unless DOE agrees, and would potentially decrease the pool of lenders willing to participate. Goldman Sachs also recommended the adoption of a “well-defined, market-based, and court-tested” mechanism for handling default and suggested that DOE look to the monoline insurance market which provides credit enhancement to capital markets transactions. (Goldman Sachs at 4-5) *DOE Response:* DOE clarifies that the final rule and the Title XVII loan guarantee program are not subject to the FAR. The Department also clarifies that the audit provisions do not render the loan guarantees conditional, but that the need to retain audit authority is necessary to prevent fraud and abuse and should in no way be construed as limiting the enforceability of the Title XVII Loan Guarantee. DOE does not accept Goldman Sachs' recommendation that DOE give up its right to approve claims on the guarantees in the event of defaults for circumstances other than non-payment of principal and interest. Inasmuch as DOE likely will be the largest risk taker in any project receiving a Title XVII guarantee, the Department is not being unreasonable in insisting that it have a say about what event can accelerate payments under the Loan Guarantee Agreement. However, the Department has revised section 609.15(e), which requires lenders to provide supporting documentation to justify a payment demand, to specify that requirements will be provided in the Loan Guarantee Agreement. Also, DOE clarifies that proposed section 609.15(b) is not intended and should not be read to preclude demands for failure to pay principal and interest where there has been a default other than a payment default. A non-payment default can become a payment default if such default is not cured within the time specified in the Loan Guarantee Agreement and the debt is accelerated and thus causes the entire amount of the loan to become immediately due and payable. DOE will retain the audit provision in section 609.17(b) which permits DOE, in the course of conducting an audit, to exclude from or reduce project costs that are determined to be unnecessary or excessive. As indicated above, such an audit provision is necessary in order to protect the Federal government against the possibility of fraud or abuse. J. Tax Exempt Debt Section 103(a) of the Internal Revenue Code (IRC), 26 U.S.C. 103(a), provides that “gross income” does not include interest on any state or local bond, with certain exceptions. Section 149(b) of the IRC, 26 U.S.C. 149(b), provides that the section 103(a) exclusion from gross income “shall not apply to a state or local bond if such bond is federally guaranteed.” Section 149(b) in effect converts tax exempt debt to taxable debt when such debt is guaranteed by the Federal government. Accordingly, DOE proposed in section 609.10 of the NOPR to prohibit the Department from directly or indirectly guaranteeing tax exempt obligations. *Public Comments:* The Nuclear Utilities stated that section 609.10's prohibition against issuing any loan guarantees that finance directly or indirectly any tax exempt debt is unnecessarily broad, and appears to establish new policy that negates provisions of current law on tax exempt financing. The Nuclear Utilities focused on several exceptions in 26 U.S.C. 149(b)(3)(A), which permit loan guarantees to apply to tax exempt debt obligations under certain conditions, and request that the final rule provide that loan guarantees may be issued for debt obligations if they qualify under such a statutory exception in existence at the time of loan guarantee agreement is executed. Specifically, they request that the prohibition in section 609.10(d)(7) of the NOPR should be amended by adding the proviso, “unless such debt obligations fall within one of the exceptions enumerated in 26 U.S.C. 149(b)(3)(A), or other similar law.” (Nuclear Utilities at 15). Bechtel recommended the deletion of the proposed requirement that prior to the execution of the loan, DOE must ensure that the guarantee does not finance tax exempt debt because it might exclude many municipal and cooperative electric utility companies that rely heavily on tax exempt financing. (Bechtel at 6). CPS sought elimination of the prohibition on grounds that it is duplicative of IRC section 149(b). (CPS at 3) *DOE Response:* The prohibition on municipalities issuing tax-exempt obligations that are also guaranteed by the Federal government is set forth in Federal law, and DOE cannot change the statutory prohibition, regardless of whether or not a similar prohibition is expressed in Title XVII regulations. DOE believes, however, that in the interests of clarity and completeness, the rule should contain such a prohibition. Nonetheless, we are persuaded that the prohibition in the final rule should be expressly coextensive with the statutory prohibition such that any statutory exceptions in effect at the time that a guarantee is issued will also be deemed exceptions from the regulation, because it is not DOE's intent to prohibit by rule, except to the extent prohibited by statute, loan guarantees from being issued for projects employing tax exempt debt. We have modified section 609.10(d)(7) of the final rule accordingly. K. Full Faith and Credit Section 609.14 of the proposed regulations provided that the full faith and credit of the United States would be pledged to the payment of all Guaranteed Obligations. It further provided that the guarantee shall be conclusive evidence that it has been properly obtained, that the underlying loan qualified for the guarantee, and that but for fraud or material misrepresentation by the Holder, is presumed to be valid, legal, and enforceable. DOE stated that it maintains a strong interest in ensuring that the debt incurred in order to finance innovative projects can be financed and sold in secondary markets. *Public Comments:* The commenters addressing this issue stressed the need to ensure that the guarantees issued by the Department are completely unconditional and obtain a “AAA” credit rating. The Investment Bankers focused on several provisions that appear to weaken the unconditional nature of the guarantee. For example, the NOPR sought to impose on Eligible Lenders a duty of care and other duties that are arguably more onerous than is required in commercial markets and in other Federal loan guarantee programs. According to the Investment Bankers, these provisions make the guarantee conditional and put lenders at risk disproportionate to any potential returns, especially in the case of collateral agents or other agents who receive minimal fees for such functions. The Investment Bankers contend that these provisions will further reduce interest in the lender community in this program and, therefore, the availability of financing. (Investment Bankers at 2). Citi, in addressing the need for a “AAA” credit rating, argued that the exception for fraud or material misrepresentation by the holder of the guarantee, as proposed in the NOPR, is not necessary. (Citi at 4). *DOE Response:* Subject only to fraud or material misrepresentation by the Holder, the guarantee is absolute. For the reasons discussed elsewhere in this preamble in connection with the Department's authority to conduct audits, we reject the argument of Citi and the Investment Bankers that the right to audit for fraud or abuse is unnecessary or would compromise the unconditional nature of Title XVII loan guarantees. The right to audit is vital to the Department's effort to protect against fraud or abuse and to protect the government and the taxpayer; in any event, Title XVII requires the Department to have regulations addressing audit requirements. DOE also does not agree that the duty of care required of Eligible Lenders is too strict. These standards and the duty of care required of Eligible Lenders, as proposed in the NOPR, do not compromise the unconditional nature of the guarantees but are intended to support the government's need to assure a reasonable prospect of repayment. So, these requirements should not in any sense restrict or reduce the viability of the Title XVII program. L. Responses to August 2006 Solicitation In the NOPR, DOE proposed that in order to ensure that the Department complies with Public Law 110-5 but does not prejudice Pre-Applicants that responded to the First Solicitation, the Title XVII regulations should specify that they do not apply to the Pre-Applications, Applications, Conditional Commitments, and Loan Guarantee Agreements issued or entered into pursuant to the First Solicitation. The only exceptions would be with respect to the default, recordkeeping, and audit requirements in proposed sections 609.15 and 609.17, which Title XVII requires be established by rule. The NOPR also proposed to permit DOE and an Applicant to agree in a Loan Guarantee Agreement entered into pursuant to the First Solicitation that additional provisions of DOE's regulations would apply to the particular project. *Public Comments:* Synergistic Dynamics, Inc. (Synergistic) submits that DOE's proposed waiver of regulatory requirements for the Pre-Applications received in response to the First Solicitation will prejudice subsequent applicants who fully comply with the final regulations. The only other comment DOE received on this aspect of the NOPR was a letter submitted by two members of Congress, which asserted that DOE's proposal was not consistent with Congress's intent in Public Law 110-5, which required that DOE promulgate final regulations before issuing any loan guarantees under the Title XVII program. (Synergistic at 3) *DOE Response:* The final rule generally adopts the approach set forth in the NOPR, but specifies additional provisions of the regulations that will be applicable to all pre-applications, applications, and loan guarantees, including those under the First Solicitation. The Department still believes it is important not to prejudice Pre-Applicants who responded to the First Solicitation. For example, the final rule establishes requirements for Title XVII solicitations that are not consistent with the content of the August 2006 First Solicitation issued by DOE, and if all provisions of the final rule were made to apply to the First Solicitation and the submissions in response to it, it is difficult to see how DOE could proceed other than to reject all of the Pre-Applications that were submitted and start the program over from scratch. The Department and the Pre-Applicants have spent too much time responding to the First Solicitation to throw that work away and start over. At the same time, many portions of the final rule can be fairly applied to those entities that responded to the First Solicitation, and the process of considering those responses is at a stage where many of the final rule's requirements can and should be made to apply to them. In fact, the Department believes that it will benefit both Pre-Applicants and the Department to make additional provisions of this rule applicable to them. Because, as DOE noted in the NOPR, section 20320 of Public Law 110-5 does not state whether or to what extent the final rules that Public Law 110-5 requires to be issued must apply to any matters in connection with the First Solicitation, DOE therefore must make a policy judgment about the extent to which this final rule should be so applicable. In section 609.1 of the final rule, DOE specifies which sections of the regulations are *not* applicable to Pre-Applicants and projects being considered in response to the First Solicitation. Except as specified in that section, these regulations apply to all projects and loan guarantees pursuant to Title XVII, including those pursuant to the First Solicitation. M. Other Issues Raised in the Public Comments 1. Non-Recourse Financing. The NOPR proposed to require the borrower to pledge all project assets and other collateral to obtain a loan guarantee. (609.10(d)(10)). Some commenters sought clarification that in the event of default, the loan guarantee is non-recourse, *i.e.* , liquidation or sale of assets after default is limited to project assets pledged as collateral. The commenters noted that a sponsor may, at its discretion, offer other collateral to reduce the cost of the subsidy and that this is the substance of the collateral pool that lenders would and will require in a limited-recourse financing. However, one commenter observed that in such a collateral pool, the government would be in a second lien position until it paid, in part or in whole, the project loans—at which time the government would subrogate to a first lien position. (TXU at 6). Pursuant to the final rule and Title XVII itself, loan guarantees will be secured by all project assets, including, contracts, agreements, and other pledged collateral. Other than pledged project assets and other pledged collateral, however, the loan guarantee is non-recourse as to all persons and entities. The issue of lien position is discussed elsewhere in this preamble. 2. Timeline for Processing Application. P&W recommended that in order for an Applicant to effectively plan its project development life cycle, DOE should clearly define a timeline for application processing and loan awards. P&W said there are sensitivities around time to market that might preclude engagement with the loan guarantee program if the timeline moves too slowly. (P&W at 3). Dominion asked DOE to consider offering priority processing to applicants that wish to enter into loan guarantees of shorter terms than the statutorily allowed maximum, because a reduced loan guarantee term reduces risk to the government, and contended that priority processing of such lower risk projects would further the President's Advanced Energy Initiative. (Dominion at 4). The Department believes that given the breadth, diversity, and innovative nature of the technologies that are potentially eligible for Title XVII loan guarantees and for which loan guarantees will be sought, it is not feasible at this point to establish by rule firm timelines for the processing of applications. This issue may be revisited at some point in the future, after DOE and participants have gained more experience with the program. The Department may, in the context of a particular solicitation, establish specific timelines for various phases of the application and consideration process for that solicitation. DOE also is not persuaded that it should attempt, in these regulations, to provide a sort of higher priority in the processing or granting of loan guarantees for potentially lower risk or reduced loan term applications. Such a rule might be inconsistent with particular Departmental objectives if DOE wished to focus a particular solicitation on high-risk technologies. Moreover, it likely would be difficult, early in the process of reviewing an application, to determine with any certainty which applications presented lower risk than others. As for the issue of shorter-term loans—for example, loans that only have a five-year term, or on which the DOE guarantee expires after five years, the term may or may not weigh into the consideration of the application. DOE does not believe it is appropriate to provide by rule for priority processing of requests for shorter-term guarantees. In individual solicitations, the Department may set forth priorities for processing applications, consistent with the final rule. 3. Conditional Commitment Section 609.8(c) of the NOPR provided in part that “[w]hen and if all of the terms and conditions specified in the Conditional Commitment have been met, DOE and the Applicant may enter into a Loan Guarantee Agreement, *but neither party is legally obligated to do so.* ” (emphasis added) The Nuclear Utilities stated that DOE should allow flexibility in the type of “commitment” provided by the Department in advance of the planned financial close of guaranteed debt. (Nuclear Utilities at 18). On the other hand, TXU stated that once the Sponsor submits the Application package, DOE should issue a Conditional Commitment and, as long as the sponsor meets all of the conditions set forth in the Commitment, the sponsor should be assured that the federal loan guarantee will be forthcoming. According to TXU, the need for assurance that a guarantee will be issued where all conditions are met is essential because the costs of securing a guarantee, providing all the necessary documents, licenses and permits, *etc.,* could cost in the hundreds of millions of dollars, especially in the case of nuclear plants or other capital intensive projects. TXU maintained that following the preliminary application stage, a sponsor should not have to be concerned about making these expenditures and not receiving a federal guarantee unless the sponsor fails to fulfill all the conditions precedent to the loan program. (TXU at 8-9). DOE agrees with the concerns expressed, and therefore has revised sections 609.2 and 609.8 to indicate that a Conditional Commitment is an agreement to pursue the execution of a Loan Guarantee Agreement. The Secretary may terminate a Conditional Commitment for any reason at any time prior to execution of the Loan Guarantee Agreement. To ensure that no Conditional Commitment binds DOE to enter into a Loan Guarantee Agreement without both adequate legal authority to do so and payment into the Treasury of required fees and costs, the final rule provides that DOE's obligations under each Conditional Commitment are conditional upon Congress having provided in advance of the execution of the loan guarantee sufficient authority under FCRA and Title XVII for DOE to execute the Loan Guarantee Agreement, and either an appropriation has been made or a borrower has paid into the Treasury sufficient funds to cover the full Credit Subsidy Cost for the loan guarantee that is the subject of the Conditional Commitment. These conditions are made applicable by rule to each Conditional Commitment, and are applicable whether or not they are specifically stated in the text of a Conditional Commitment. 4. Restrictions on the Transferability of Guaranteed Obligations Goldman Sachs recommended that the final rule not include restrictions on transferability of guaranteed loans, and that DOE clarify that the provisions regarding the eligible lender apply only to the lead lender. Goldman Sachs said that section 609.10(g)(1) of the proposed rule, which would have required the eligible lender to provide written notification of any assignment, transfer, pledge, or use of a guaranteed obligation, renders such actions subject to DOE consent are not practical because the lead lender will need to assign and/or participate the loans to a large number of institutions very quickly. This flexibility is particularly important, according to Goldman Sachs, given the significant capital needed for construction of a nuclear power facility and the need for lenders in the secondary market for the ability to freely trade their loans. Bank of America Securities, LLC
(BOA)also objected to this section. (BOA at 8) The Department has an interest in ensuring that any Guaranteed Obligation presented to it for payment is valid. Accordingly, revised section 609.10(g) states that DOE will provide in the Loan Guarantee Agreement and related documents, procedures for identifying Holders of the Guaranteed Obligations, including for the purpose of payments pursuant to the guarantee in the event of default. III. Regulatory Review A. Executive Order 12866 Today's final rule has been determined to be a significant regulatory action under Executive Order 12866, “Regulatory Planning and Review,” 58 FR 51735 (October 4, 1993). Accordingly, this action was subject to review under that Executive Order by the Office of Information and Regulatory Affairs at Office of Management and Budget (OMB). B. National Environmental Policy Act of 1969 Through the issuance of this rule, DOE is making no decision relative to the approval of a loan guarantee for a particular proposed project. DOE has, therefore, determined that publication of the final rule is covered under the Categorical Exclusion found at paragraph A.6 of Appendix A to Subpart D, 10 CFR part 1021, which applies to the establishment of procedural rulemakings. Accordingly, neither an environmental assessment nor an environmental impact statement is required at this time. However, appropriate NEPA project review will be conducted prior to execution of a Loan Guarantee Agreement. C. Regulatory Flexibility Act The Regulatory Flexibility Act (5 U.S.C. 601 *et seq.* ) requires preparation of an initial regulatory flexibility analysis for any rule that by law must be proposed for public comment, unless the agency certifies that the rule, if promulgated, will not have a significant economic impact on a substantial number of small entities. As required by Executive Order 13272, “Proper Consideration of Small Entities in Agency Rulemaking,” 67 FR 53461 (August 16, 2002), DOE published procedures and policies on February 19, 2003, to ensure that the potential impacts of its rules on small entities are properly considered during the rulemaking process (68 FR 7990). DOE has made its procedures and policies available on the Office of the General Counsel's Web site: *http://www.gc.doe.gov.* DOE is not obliged to prepare a regulatory flexibility analysis for this rulemaking because there is no requirement to publish a general notice of proposed rulemaking for rules related to loans under the Administrative Procedure Act (5 U.S.C. 553). D. Paperwork Reduction Act Sections 609.4 and 609.6 of this rule provide that Pre-Applications and Applications for loan guarantees submitted to DOE in response to a solicitation must contain certain information. This information will be used by DOE to determine if a project sponsor who submits a Pre-Application will be invited to submit an Application for a loan guarantee; to determine if a project is eligible for a loan guarantee; and to evaluate Applications under criteria specified in the rule. Section 609.17 provides that borrowers must submit to DOE annual project performance reports and audited financial statements along with other information. DOE will use this information to evaluate the progress of projects for which loan guarantees are issued. DOE submitted this collection of information to OMB for approval pursuant to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 *et seq.* ) and the procedures implementing that Act, 5 CFR 1320.1 *et seq.* OMB approved this collection of information and assigned it OMB Control No. 1910-5134. E. Unfunded Mandates Reform Act of 1995 Title II of the Unfunded Mandates Reform Act of 1995
(Act)(2 U.S.C. 1531 *et seq.* ) requires each federal agency, to the extent permitted by law, to prepare a written assessment of the effects of any federal mandate in an agency rule that may result in the expenditure by state, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more (adjusted annually for inflation) in any one year. The Act also requires a Federal agency to develop an effective process to permit timely input by elected officials of State, tribal, or local governments on a proposed “significant intergovernmental mandate,” and requires an agency plan for giving notice and opportunity to provide timely input to potentially affected small governments before establishing any requirements that might significantly or uniquely affect small governments. The term “federal mandate” is defined in the Act to mean a federal intergovernmental mandate or a federal private sector mandate (2 U.S.C. 658(6)). Although the rule will impose certain requirements on non-federal governmental and private sector applicants for loan guarantees, the Act's definitions of the terms “federal intergovernmental mandate” and “federal private sector mandate” exclude, among other things, any provision in legislation, statute, or regulation that is a condition of Federal assistance or a duty arising from participation in a voluntary program (2 U.S.C. 658(5) and (7), respectively). Today's rule establishes requirements that persons voluntarily seeking loan guarantees for projects that would use certain new and improved energy technologies must satisfy as a condition of a federal loan guarantee. Thus, the rule falls under the exceptions in the definitions of “federal intergovernmental mandate” and “federal private sector mandate” for requirements that are a condition of Federal assistance or a duty arising from participation in a voluntary program. The Act does not apply to this rulemaking. F. Treasury and General Government Appropriations Act, 1999 Section 654 of the Treasury and General Government Appropriations Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family Policymaking Assessment for any proposed rule that may affect family well being. This rule would not have any impact on the autonomy or integrity of the family as an institution. Accordingly, DOE has concluded that it is not necessary to prepare a Family Policymaking Assessment. G. Executive Order 13132 Executive Order 13132, “Federalism,” 64 FR 43255 (August 4, 1999) imposes certain requirements on agencies formulating and implementing policies or regulations that preempt State law or that have federalism implications. Agencies are required to examine the constitutional and statutory authority supporting any action that would limit the policymaking discretion of the States and carefully assess the necessity for such actions. DOE has examined this rule and has determined that it would not preempt State law and would not have a substantial direct effect on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. No further action is required by Executive Order 13132. H. Executive Order 12988 With respect to the review of existing regulations and the promulgation of new regulations, section 3(a) of Executive Order 12988, “Civil Justice Reform,” 61 FR 4729 (February 7, 1996), imposes on Executive agencies the general duty to adhere to the following requirements:
(1)Eliminate drafting errors and ambiguity;
(2)write regulations to minimize litigation; and
(3)provide a clear legal standard for affected conduct rather than a general standard and promote simplification and burden reduction. With regard to the review required by section 3(a), section 3(b) of Executive Order 12988 specifically requires that Executive agencies make every reasonable effort to ensure that the regulation:
(1)Clearly specifies the preemptive effect, if any;
(2)clearly specifies any effect on existing Federal law or regulation;
(3)provides a clear legal standard for affected conduct while promoting simplification and burden reduction;
(4)specifies the retroactive effect, if any;
(5)adequately defines key terms; and
(6)addresses other important issues affecting clarity and general draftsmanship under any guidelines issued by the Attorney General. Section 3(c) of Executive Order 12988 requires Executive agencies to review regulations in light of applicable standards in section 3(a) and section 3(b) to determine whether they are met or it is unreasonable to meet one or more of them. DOE has completed the required review and determined that, to the extent permitted by law, this rule meets the relevant standards of Executive Order 12988. I. Treasury and General Government Appropriations Act, 2001 The Treasury and General Government Appropriations Act, 2001 (44 U.S.C. 3516 note) provides for agencies to review most disseminations of information to the public under guidelines established by each agency pursuant to general guidelines issued by OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). DOE has reviewed today's final rule under the OMB and DOE guidelines and has concluded that it is consistent with applicable policies in those guidelines. J. Executive Order 13211 Executive Order 13211, “Actions Concerning Regulations That Significantly Affect Energy Supply, Distribution, or Use,” 66 FR 28355 (May 22, 2001) requires Federal agencies to prepare and submit to the OMB, a Statement of Energy Effects for any proposed significant energy action. A “significant energy action” is defined as any action by an agency that promulgated or is expected to lead to promulgation of a final rule, and that:
(1)Is a significant regulatory action under Executive Order 12866, or any successor order; and
(2)is likely to have a significant adverse effect on the supply, distribution, or use of energy, or
(3)is designated by the Administrator of OIRA as a significant energy action. For any proposed significant energy action, the agency must give a detailed statement of any adverse effects on energy supply, distribution, or use should the proposal be implemented, and of reasonable alternatives to the action and their expected benefits on energy supply, distribution, and use. Today's regulatory action would not have a significant adverse effect on the supply, distribution, or use of energy and is therefore not a significant energy action. Accordingly, DOE has not prepared a Statement of Energy Effects. K. Congressional Notification As required by 5 U.S.C. 801, DOE will submit to Congress a report regarding the issuance of today's final rule prior to the effective date set forth at the outset of this notice. The report will state that it has been determined that the rule is not a “major rule” as defined by 5 U.S.C. 804(2). L. Approval by the Office of the Secretary of Energy The Secretary of Energy has approved the issuance of this final rule. List of Subjects in 10 CFR Part 609 Administrative practice and procedure, Energy, Loan programs, and Reporting and recordkeeping requirements. Issued in Washington, DC, on October 12, 2007. Steve Isakowitz, Chief Financial Officer. For the reasons stated in the Preamble, chapter II of title 10 of the Code of Federal Regulations is amended by adding a new part 609 as set forth below. PART 609—LOAN GUARANTEES FOR PROJECTS THAT EMPLOY INNOVATIVE TECHNOLOGIES Sec. 609.1 Purpose and scope. 609.2 Definitions. 609.3 Solicitations. 609.4 Submission of pre-applications. 609.5 Evaluation of pre-applications. 609.6 Submission of applications. 609.7 Programmatic, technical and financial evaluation of applications. 609.8 Term sheets and conditional commitments. 609.9 Closing on the loan guarantee agreement. 609.10 Loan Guarantee Agreement. 609.11 Lender eligibility and servicing requirements. 609.12 Project costs. 609.13 Principal and interest assistance contract. 609.14 Full faith and credit and incontestability. 609.15 Default, demand, payment, and collateral liquidation. 609.16 Perfection of liens and preservation of collateral. 609.17 Audit and access to records. 609.18 Deviations. Authority: 42 U.S.C. 7254, 16511-16514. § 609.1 Purpose and scope.
(a)This part sets forth the policies and procedures that DOE uses for receiving, evaluating, and, after consultation with the Department of the Treasury, approving applications for loan guarantees to support Eligible Projects under Title XVII of the Energy Policy Act of 2005.
(b)Except as set forth in paragraph
(c)of this section, this part applies to all Pre-Applications, Applications, Conditional Commitments and Loan Guarantee Agreements to support Eligible Projects under Title XVII of the Energy Policy Act of 2005.
(1)Sections 609.3, 609.4 and 609.5 of this part shall not apply to any Pre-Applications, Applications, Conditional Commitments or Loan Guarantee Agreements under the Guidelines issued by DOE on August 8, 2006, which were published in the **Federal Register** on August 14, 2006 (71 FR 46451) and the solicitation issued on August 8, 2006 under Title XVII of the Energy Policy Act of 2005, provided the Pre-Application is accepted under the Guidelines and an Application is invited pursuant to such Pre-Application no later than December 31, 2007.
(2)Except as provided in paragraph (c)(1) of this section, DOE and any Applicant who submitted an Application under the August 8, 2006 solicitation may agree to make additional provisions of this part applicable to the particular project.
(d)Part 1024 of chapter X of title 10 of the Code of Federal Regulations shall not apply to actions taken under this part. § 609.2 Definitions. *Act* means Title XVII of the Energy Policy Act of 2005 (42 U.S.C. 16511-16514). *Administrative Cost of Issuing a Loan Guarantee* means the total of all administrative expenses that DOE incurs during:
(1)The evaluation of a Pre-Application, if a Pre-Application is requested in a solicitation, and an Application for a loan guarantee;
(2)The offering of a Term Sheet, executing the Conditional Commitment, negotiation, and closing of a Loan Guarantee Agreement; and
(3)The servicing and monitoring of a Loan Guarantee Agreement, including during the construction, startup, commissioning, shakedown, and operational phases of an Eligible Project. *Applicant* means any person, firm, corporation, company, partnership, association, society, trust, joint venture, joint stock company, or other business entity or governmental non-Federal entity that has submitted an Application to DOE and has the authority to enter into a Loan Guarantee Agreement with DOE under the Act. *Application* means a comprehensive written submission in response to a solicitation or a written invitation from DOE to apply for a loan guarantee pursuant to § 609.6 of this part. *Borrower* means any Applicant who enters into a Loan Guarantee Agreement with DOE and issues Guaranteed Obligations. *Commercial Technology* means a technology in general use in the commercial marketplace in the United States at the time the Term Sheet is issued by DOE. A technology is in general use if it has been installed in and is being used in three or more commercial projects in the United States in the same general application as in the proposed project, and has been in operation in each such commercial project for a period of at least five years. The five year period shall be measured, for each project, starting on the in service date of the project or facility employing that particular technology. For purposes of this section, commercial projects include projects that have been the recipients of a loan guarantee from DOE under this part. *Conditional Commitment* means a Term Sheet offered by DOE and accepted by the Applicant, with the understanding of the parties that if the Applicant thereafter satisfies all specified and precedent funding obligations and all other contractual, statutory and regulatory requirements, or other requirements, DOE and the Applicant will execute a Loan Guarantee Agreement: Provided that the Secretary may terminate a Conditional Commitment for any reason at any time prior to the execution of the Loan Guarantee Agreement; and Provided further that the Secretary may not delegate this authority to terminate a Conditional Commitment. *Contracting Officer* means the Secretary of Energy or a DOE official authorized by the Secretary to enter into, administer and/or terminate DOE Loan Guarantee Agreements and related contracts on behalf of DOE. *Credit Subsidy Cost* has the same meaning as “cost of a loan guarantee” in section 502(5)(C) of the Federal Credit Reform Act of 1990 (2 U.S.C. 661a(5)(C)), which is the net present value, at the time the Loan Guarantee Agreement is executed, of the following estimated cash flows, discounted to the point of disbursement:
(1)Payments by the Government to cover defaults and delinquencies, interest subsidies, or other payments; less
(2)Payments to the Government including origination and other fees, penalties, and recoveries; including the effects of changes in loan or debt terms resulting from the exercise by the Borrower, Eligible Lender or other Holder of an option included in the Loan Guarantee Agreement. *DOE* means the United States Department of Energy. *Eligible Lender* means:
(1)Any person or legal entity formed for the purpose of, or engaged in the business of, lending money, including, but not limited to, commercial banks, savings and loan institutions, insurance companies, factoring companies, investment banks, institutional investors, venture capital investment companies, trusts, or other entities designated as trustees or agents acting on behalf of bondholders or other lenders; and
(2)Any person or legal entity that meets the requirements of § 609.11 of this part, as determined by DOE; or
(3)The Federal Financing Bank. *Eligible Project* means a project located in the United States that employs a New or Significantly Improved Technology that is not a Commercial Technology, and that meets all applicable requirements of section 1703 of the Act (42 U.S.C. 16513), the applicable solicitation and this part. *Equity* means cash contributed by the Borrowers and other principals. Equity does not include proceeds from the non-guaranteed portion of Title XVII loans, proceeds from any other non-guaranteed loans, or the value of any form of government assistance or support. *Federal Financing Bank* means an instrumentality of the United States government created by the Federal Financing Bank Act of 1973 (12 U.S.C. 2281 *et seq.* ). The Bank is under the general supervision of the Secretary of the Treasury. *Guaranteed Obligation* means any loan or other debt obligation of the Borrower for an Eligible Project for which DOE guarantees all or any part of the payment of principal and interest under a Loan Guarantee Agreement entered into pursuant to the Act. *Holder* means any person or legal entity that owns a Guaranteed Obligation or has lawfully succeeded in due course to all or part of the rights, title, and interest in a Guaranteed Obligation, including any nominee or trustee empowered to act for the Holder or Holders. *Loan Agreement* means a written agreement between a Borrower and an Eligible Lender or other Holder containing the terms and conditions under which the Eligible Lender or other Holder will make loans to the Borrower to start and complete an Eligible Project. *Loan Guarantee Agreement* means a written agreement that, when entered into by DOE and a Borrower, an Eligible Lender or other Holder, pursuant to the Act, establishes the obligation of DOE to guarantee the payment of all or a portion of the principal and interest on specified Guaranteed Obligations of a Borrower to Eligible Lenders or other Holders subject to the terms and conditions specified in the Loan Guarantee Agreement. *New or Significantly Improved Technology* means a technology concerned with the production, consumption or transportation of energy and that is not a Commercial Technology, and that has either only recently been developed, discovered or learned; or involves or constitutes one or more meaningful and important improvements in productivity or value, in comparison to Commercial Technologies in use in the United States at the time the Term Sheet is issued. *OMB* means the Office of Management and Budget in the Executive Office of the President. *Pre-Application* means a written submission in response to a DOE solicitation that broadly describes the project proposal, including the proposed role of a DOE loan guarantee in the project, and the eligibility of the project to receive a loan guarantee under the applicable solicitation, the Act and this part. *Project Costs* means those costs, including escalation and contingencies, that are to be expended or accrued by Borrower and are necessary, reasonable, customary and directly related to the design, engineering, financing, construction, startup, commissioning and shakedown of an Eligible Project, as specified in § 609.12 of this part. Project costs do not include costs for the items set forth in § 609.12(c) of this part. *Project Sponsor* means any person, firm, corporation, company, partnership, association, society, trust, joint venture, joint stock company or other business entity that assumes substantial responsibility for the development, financing, and structuring of a project eligible for a loan guarantee and, if not the Applicant, owns or controls, by itself and/or through individuals in common or affiliated business entities, a five percent or greater interest in the proposed Eligible Project, or the Applicant. *Secretary* means the Secretary of Energy or a duly authorized designee or successor in interest. *Term Sheet* means an offering document issued by DOE that specifies the detailed terms and conditions under which DOE may enter into a Conditional Commitment with the Applicant. A Term Sheet imposes no obligation on the Secretary to enter into a Conditional Commitment. *United States* means the several states, the District of Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa or any territory or possession of the United States of America. § 609.3 Solicitations.
(a)DOE may issue solicitations to invite the submission of Pre-Applications or Applications for loan guarantees for Eligible Projects. DOE must issue a solicitation before proceeding with other steps in the loan guarantee process including issuance of a loan guarantee. A Project Sponsor or Applicant may only submit one Pre-Application or Application for one project using a particular technology. A Project Sponsor or Applicant, in other words, may not submit a Pre-Application or Application for multiple projects using the same technology.
(b)Each solicitation must include, at a minimum, the following information:
(1)The dollar amount of loan guarantee authority potentially being made available by DOE in that solicitation;
(2)The place and time for response submission;
(3)The name and address of the DOE representative whom a potential Project Sponsor may contact to receive further information and a copy of the solicitation;
(4)The form, format, and page limits applicable to the response submission;
(5)The amount of the application fee (First Fee), if any, that will be required;
(6)The programmatic, technical, financial and other factors the Secretary will use to evaluate response submissions, including the loan guarantee percentage requested by the Applicant and the relative weightings that DOE will use when evaluating those factors; and
(7)Such other information as DOE may deem appropriate. § 609.4 Submission of pre-applications. In response to a solicitation requesting the submission of Pre-Applications, either Project Sponsors or Applicants may submit Pre-Applications to DOE. Pre-Applications must meet all requirements specified in the solicitation and this part. At a minimum, each Pre-Application must contain all of the following:
(a)A cover page signed by an individual with full authority to bind the Project Sponsor or Applicant that attests to the accuracy of the information in the Pre-Application, and that binds the Project Sponsor(s) or Applicant to the commitments made in the Pre-Application. In addition, the information requested in paragraphs
(b)and
(c)of this section should be submitted in a volume one and the information requested in paragraphs
(d)through
(h)of this section should be submitted in a volume two, to expedite the DOE review process.
(b)An executive summary briefly encapsulating the key project features and attributes of the proposed project;
(c)A business plan which includes an overview of the proposed project, including:
(1)A description of the Project Sponsor, including all entities involved, and its experience in project investment, development, construction, operation and maintenance;
(2)A description of the new or significantly improved technology to be employed in the project, including:
(i)A report detailing its successes and failures during the pilot and demonstration phases;
(ii)The technology's commercial applications;
(iii)The significance of the technology to energy use or emission control;
(iv)How and why the technology is “new” or “significantly improved” compared to technology already in general use in the commercial marketplace in the United States;
(v)Why the technology to be employed in the project is not in “general use;”
(vi)The owners or controllers of the intellectual property incorporated in and utilized by such technologies; and
(vii)The manufacturer(s) and licensee(s), if any, authorized to make the technology available in the United States, the potential for replication of commercial use of the technology in the United States, and whether and how the technology is or will be made available in the United States for further commercial use;
(3)The estimated amount, in reasonable detail, of the total Project Costs;
(4)The timeframe required for construction and commissioning of the project;
(5)A description of any primary off-take or other revenue-generating agreements that will provide the primary sources of revenues for the project, including repayment of the debt obligations for which a guarantee is sought.
(6)An overview of how the project complies with the eligibility requirements in section 1703 of the Act (42 U.S.C. 16513);
(7)An outline of the potential environmental impacts of the project and how these impacts will be mitigated;
(8)A description of the anticipated air pollution and/or anthropogenic greenhouse gas reduction benefits and how these benefits will be measured and validated; and
(9)A list of all of the requirements contained in this part and the solicitation and where in the Pre-Application these requirements are addressed;
(d)A financing plan overview describing:
(1)The amount of equity to be invested and the sources of such equity;
(2)The amount of the total debt obligations to be incurred and the funding sources of all such debt if available;
(3)The amount of the Guaranteed Obligation as a percentage of total project debt; and as a percentage of total project cost; and
(4)A financial model detailing the investments in and the cash flows generated and anticipated from the project over the project's expected life-cycle, including a complete explanation of the facts, assumptions, and methodologies in the financial model;
(e)An explanation of what estimated impact the loan guarantee will have on the interest rate, debt term, and overall financial structure of the project;
(f)Where the Federal Financing Bank is not the lender, a copy of a letter from an Eligible Lender or other Holder(s) expressing its commitment to provide, or interest in providing, the required debt financing necessary to construct and fully commission the project;
(g)A copy of the equity commitment letter(s) from each of the Project Sponsors and a description of the sources for such equity; and
(h)A commitment to pay the Application fee (First Fee), if invited to submit an Application. § 609.5 Evaluation of pre-applications.
(a)Where Pre-Applications are requested in a solicitation, DOE will conduct an initial review of the Pre-Application to determine whether:
(1)The proposal is for an Eligible Project;
(2)The submission contains the information required by § 609.4 of this part; and
(3)The submission meets all other requirements of the applicable solicitation.
(b)If a Pre-Application fails to meet the requirements of paragraph
(a)of this section, DOE may deem it non-responsive and eliminate it from further review.
(c)If DOE deems a Pre-Application responsive, DOE will evaluate:
(1)The commercial viability of the proposed project;
(2)The technology to be employed in the project;
(3)The relevant experience of the principal(s); and
(4)The financial capability of the Project Sponsor (including personal and/or business credit information of the principal(s)).
(d)After the evaluation described in paragraph
(c)of this section, DOE will determine if there is sufficient information in the Pre-Application to assess the technical and commercial viability of the proposed project and/or the financial capability of the Project Sponsor and to assess other aspects of the Pre-Application. DOE may ask for additional information from the Project Sponsor during the review process and may request one or more meetings with the Project Sponsor.
(e)After reviewing a Pre-Application and other information acquired under paragraph
(c)of this section, DOE may provide a written response to the Project Sponsor or Applicant either inviting the Applicant to submit an Application for a loan guarantee and specifying the amount of the Application filing fee (First Fee) or advising the Project Sponsor that the project proposal will not receive further consideration. Neither the Pre-Application nor any written or other feedback that DOE may provide in response to the Pre-Application eliminates the requirement for an Application.
(f)No response by DOE to, or communication by DOE with, a Project Sponsor, or an Applicant submitting a Pre-Application or subsequent Application shall impose any obligation on DOE to enter into a Loan Guarantee Agreement. § 609.6 Submission of applications.
(a)In response to a solicitation or written invitation to submit an Application, an Applicant submitting an Application must meet all requirements and provide all information specified in the solicitation and/or invitation and this part.
(b)An Application must include, at a minimum, the following information and materials:
(1)A completed Application form signed by an individual with full authority to bind the Applicant and the Project Sponsors;
(2)Payment of the Application filing fee (First Fee) for the Pre-Application, if any, and Application phase;
(3)A detailed description of all material amendments, modifications, and additions made to the information and documentation provided in the Pre-Application, if a Pre-Application was requested in the solicitation, including any changes in the proposed project's financing structure or other terms;
(4)A description of how and to what measurable extent the project avoids, reduces, or sequesters air pollutants and/or anthropogenic emissions of greenhouse gases, including how to measure and verify those benefits;
(5)A description of the nature and scope of the proposed project, including:
(i)Key milestones;
(ii)Location of the project;
(iii)Identification and commercial feasibility of the new or significantly improved technology(ies) to be employed in the project;
(iv)How the Applicant intends to employ such technology(ies) in the project; and
(v)How the Applicant intends to assure, to the extent possible, the further commercial availability of the technology(ies) in the United States;
(6)A detailed explanation of how the proposed project qualifies as an Eligible Project;
(7)A detailed estimate of the total Project Costs together with a description of the methodology and assumptions used;
(8)A detailed description of the engineering and design contractor(s), construction contractor(s), equipment supplier(s), and construction schedules for the project, including major activity and cost milestones as well as the performance guarantees, performance bonds, liquidated damages provisions, and equipment warranties to be provided;
(9)A detailed description of the operations and maintenance provider(s), the plant operating plan, estimated staffing requirements, parts inventory, major maintenance schedule, estimated annual downtime, and performance guarantees and related liquidated damage provisions, if any;
(10)A description of the management plan of operations to be employed in carrying out the project, and information concerning the management experience of each officer or key person associated with the project;
(11)A detailed description of the project decommissioning, deconstruction, and disposal plan, and the anticipated costs associated therewith;
(12)An analysis of the market for any product to be produced by the project, including relevant economics justifying the analysis, and copies of any contractual agreements for the sale of these products or assurance of the revenues to be generated from sale of these products;
(13)A detailed description of the overall financial plan for the proposed project, including all sources and uses of funding, equity and debt, and the liability of parties associated with the project over the term of the Loan Guarantee Agreement;
(14)A copy of all material agreements, whether entered into or proposed, relevant to the investment, design, engineering, financing, construction, startup commissioning, shakedown, operations and maintenance of the project;
(15)A copy of the financial closing checklist for the equity and debt to the extent available;
(16)Applicant's business plan on which the project is based and Applicant's financial model presenting project *pro forma* statements for the proposed term of the Guaranteed Obligations including income statements, balance sheets, and cash flows. All such information and data must include assumptions made in their preparation and the range of revenue, operating cost, and credit assumptions considered;
(17)Financial statements for the past three years, or less if the Applicant has been in operation less than three years, that have been audited by an independent certified public accountant, including all associated notes, as well as interim financial statements and notes for the current fiscal year, of Applicant and parties providing Applicant's financial backing, together with business and financial interests of controlling or commonly controlled organizations or persons, including parent, subsidiary and other affiliated corporations or partners of the Applicant;
(18)A copy of all legal opinions, and other material reports, analyses, and reviews related to the project;
(19)An independent engineering report prepared by an engineer with experience in the industry and familiarity with similar projects. The report should address: the project's siting and permitting, engineering and design, contractual requirements, environmental compliance, testing and commissioning and operations and maintenance;
(20)Credit history of the Applicant and, if appropriate, any party who owns or controls, by itself and/or through individuals in common or affiliated business entities, a five percent or greater interest in the project or the Applicant;
(21)A preliminary credit assessment for the project without a loan guarantee from a nationally recognized rating agency for projects where the estimated total Project Costs exceed $25 million. For projects where the total estimated Project Costs are less than $25 million and where conditions justify, in the sole discretion of the Secretary, DOE may require such an assessment;
(22)A list showing the status of and estimated completion date of Applicant's required project-related applications or approvals for Federal, state, and local permits and authorizations to site, construct, and operate the project;
(23)A report containing an analysis of the potential environmental impacts of the project that will enable DOE to assess whether the project will comply with all applicable environmental requirements, and that will enable DOE to undertake and complete any necessary reviews under the National Environmental Policy Act of 1969;
(24)A listing and description of assets associated, or to be associated, with the project and any other asset that will serve as collateral for the Guaranteed Obligations, including appropriate data as to the value of the assets and the useful life of any physical assets. With respect to real property assets listed, an appraisal that is consistent with the “Uniform Standards of Professional Appraisal Practice,” promulgated by the Appraisal Standards Board of the Appraisal Foundation, and performed by licensed or certified appraisers, is required;
(25)An analysis demonstrating that, at the time of the Application, there is a reasonable prospect that Borrower will be able to repay the Guaranteed Obligations (including interest) according to their terms, and a complete description of the operational and financial assumptions and methodologies on which this demonstration is based;
(26)Written affirmation from an officer of the Eligible Lender or other Holder confirming that it is in good standing with DOE's and other Federal agencies' loan guarantee programs;
(27)A list of all of the requirements contained in this part and the solicitation and where in the Application these requirements are addressed;
(28)A statement from the Applicant that it believes that there is “reasonable prospect” that the Guaranteed Obligations will be fully paid from project revenue; and
(29)Any other information requested in the invitation to submit an Application or requests from DOE in order to clarify an Application;
(c)DOE will not consider any Application complete unless the Applicant has paid the First Fee and the Application is signed by the appropriate entity or entities with the authority to bind the Applicant to the commitments and representations made in the Application. § 609.7 Programmatic, technical and financial evaluation of applications.
(a)In reviewing completed Applications, and in prioritizing and selecting those to whom a Term Sheet should be offered, DOE will apply the criteria set forth in the Act, the applicable solicitation, and this part. Applications will be considered in a competitive process, i.e. each Application will be evaluated against other Applications responsive to the Solicitation. Greater weight will be given to applications that rely upon a smaller guarantee percentage, all else being equal. Concurrent with its review process, DOE will consult with the Secretary of the Treasury regarding the terms and conditions of the potential loan guarantee. Applications will be denied if:
(1)The project will be built or operated outside the United States;
(2)The project is not ready to be employed commercially in the United States, cannot yield a commercially viable product or service in the use proposed in the project, does not have the potential to be employed in other commercial projects in the United States, and is not or will not be available for further commercial use in the United States;
(3)The entity or person issuing the loan or other debt obligations subject to the loan guarantee is not an Eligible Lender or other Holder, as defined in § 609.11 of this part;
(4)The project is for demonstration, research, or development.
(5)The project does not avoid, reduce or sequester air pollutants or anthropogenic emissions of greenhouse gases; or
(6)The Applicant will not provide an equity contribution.
(b)In evaluating Applications, DOE will consider the following factors:
(1)To what measurable extent the project avoids, reduces, or sequesters air pollutants or anthropogenic emissions of greenhouses gases;
(2)To what extent the new or significantly improved technology to be employed in the project, as compared to Commercial Technology in general use in the United States, is ready to be employed commercially in the United States, can be replicated, yields a commercial viable project or service in the use proposed in the project, has potential to be employed in other commercial projects in the United States, and is or will be available for further commercial use in the United States;
(3)To the extent that the new or significantly improved technology used in the project constitutes an important improvement in technology, as compared to Commercial Technology, used to avoid, reduce or sequester air pollutants or anthropogenic emissions of greenhouse gases, and the Applicant has a plan to advance or assist in the advancement of that technology into the commercial marketplace;
(4)The extent to which the requested amount of the loan guarantee, and requested amount of Guaranteed Obligations are reasonable relative to the nature and scope of the project;
(5)The total amount and nature of the Eligible Project Costs and the extent to which Project Costs are funded by Guaranteed Obligations;
(6)The likelihood that the project will be ready for full commercial operations in the time frame stated in the Application;
(7)The amount of equity commitment to the project by the Applicant and other principals involved in the project;
(8)Whether there is sufficient evidence that the Applicant will diligently pursue the project, including initiating and completing the project in a timely manner;
(9)Whether and to what extent the Applicant will rely upon other Federal and non-Federal governmental assistance such as grants, tax credits, or other loan guarantees to support the financing, construction, and operation of the project and how such assistance will impact the project;
(10)The feasibility of the project and likelihood that the project will produce sufficient revenues to service the project's debt obligations over the life of the loan guarantee and assure timely repayment of Guaranteed Obligations;
(11)The levels of safeguards provided to the Federal government in the event of default through collateral, warranties, and other assurance of repayment described in the Application;
(12)The Applicant's capacity and expertise to successfully operate the project, based on factors such as financial soundness, management organization, and the nature and extent of corporate and personal experience;
(13)The ability of the applicant to ensure that the project will comply with all applicable laws and regulations, including all applicable environmental statutes and regulations;
(14)The levels of market, regulatory, legal, financial, technological, and other risks associated with the project and their appropriateness for a loan guarantee provided by DOE;
(15)Whether the Application contains sufficient information, including a detailed description of the nature and scope of the project and the nature, scope, and risk coverage of the loan guarantee sought to enable DOE to perform a thorough assessment of the project; and
(16)Such other criteria that DOE deems relevant in evaluating the merits of an Application.
(c)During the Application review process DOE may raise issues or concerns that were not raised during the Pre-Application review process where a Pre-Application was requested in the applicable solicitation.
(d)If DOE determines that a project may be suitable for a loan guarantee, DOE will notify the Applicant and Eligible Lender or other Holder in writing and provide them with a Term Sheet. If DOE reviews an Application and decides not to proceed further with the issuance of a Term Sheet, DOE will inform the Applicant in writing of the reason(s) for denial. § 609.8 Term sheets and conditional commitments.
(a)DOE, after review and evaluation of the Application, additional information requested and received by DOE, potentially including a preliminary credit rating or credit assessment, and information obtained as the result of meeting with the Applicant and the Eligible Lender or other Holder, may offer to an Applicant and the Eligible Lender or other Holder detailed terms and conditions that must be met, including terms and conditions that must be met by the Applicant and the Eligible Lender or other Holder.
(b)The terms and conditions required by DOE will be expressed in a written Term Sheet signed by a Contracting Officer and addressed to the Applicant and the Eligible Lender or other Holder, where appropriate. The Term Sheet will request that the Project Sponsor and the Eligible Lender or other Holder express agreement with the terms and conditions contained in the Term Sheet by signing the Term Sheet in the designated place. Each person signing the Term Sheet must be a duly authorized official or officer of the Applicant and Eligible Lender or other Holder. The Term Sheet will include an expiration date on which the terms offered will expire unless the Contracting Officer agrees in writing to extend the expiration date.
(c)The Applicant and/or the Eligible Lender or other Holder may respond to the Term Sheet offer in writing or may request discussions or meetings on the terms and conditions contained in the Term Sheet, including requests for clarifications or revisions. When DOE, the Applicant, and the Eligible Lender or other Holder agree on all of the final terms and conditions and all parties sign the Term Sheet, the Term Sheet becomes a Conditional Commitment. When and if all of the terms and conditions specified in the Conditional Commitment have been met, DOE and the Applicant may enter into a Loan Guarantee Agreement.
(d)DOE's obligations under each Conditional Commitment are conditional upon statutory authority having been provided in advance of the execution of the Loan Guarantee Agreement sufficient under FCRA and Title XVII for DOE to execute the Loan Guarantee Agreement, and either an appropriation has been made or a borrower has paid into the Treasury sufficient funds to cover the full Credit Subsidy Cost for the loan guarantee that is the subject of the Conditional Commitment.
(e)The Applicant is required to pay fees to DOE to cover the Administrative Cost of Issuing a Loan Guarantee for the period of the Term Sheet through the closing of the Loan Guarantee Agreement (Second Fee). § 609.9 Closing on the loan guarantee agreement.
(a)Subsequent to entering into a Conditional Commitment with an Applicant, DOE, after consultation with the Applicant, will set a closing date for execution of Loan Guarantee Agreement.
(b)By the closing date, the Applicant and the Eligible Lender or other Holder must have satisfied all of the detailed terms and conditions contained in the Conditional Commitment and other related documents and all other contractual, statutory, and regulatory requirements. If the Applicant and the Eligible Lender or other Holder has not satisfied all such terms and conditions by the closing date, the Secretary may, in his/her sole discretion, set a new closing date or terminate the Conditional Commitment.
(c)In order to enter into a Loan Guarantee Agreement at closing:
(1)DOE must have received authority in an appropriations act for the loan guarantee; and
(2)All other applicable statutory, regulatory, or other requirements must be fulfilled.
(d)Prior to, or on, the closing date, DOE will ensure that:
(1)Pursuant to section 1702(b) of the Act, DOE has received payment of the Credit Subsidy Cost of the loan guarantee, as defined in § 609.2 of this part from *either* (but not from a combination) of the following:
(i)A Congressional appropriation of funds; or
(ii)A payment from the Borrower.
(2)Pursuant to section 1702(h) of the Act, DOE has received from the Borrower the First and Second Fees and, if applicable, the Third fee, or portions thereof, for the Administrative Cost of Issuing the Loan Guarantee, as specified in the Loan Guarantee Agreement;
(3)OMB has reviewed and approved DOE's calculation of the Credit Subsidy Cost of the loan guarantee.;
(4)The Department of the Treasury has been consulted as to the terms and conditions of the Loan Guarantee Agreement;
(5)The Loan Guarantee Agreement and related documents contain all terms and conditions DOE deems reasonable and necessary to protect the interest of the United States; and
(6)All conditions precedent specified in the Conditional Commitment are either satisfied or waived by a Contracting Officer and all other applicable contractual, statutory, and regulatory requirements are satisfied.
(e)Not later than the period approved in writing by the Contracting Officer, which may not be less than 30 days prior to the closing date, the Applicant must provide in writing updated project financing information if the terms and conditions of the financing arrangements changed between execution of the Conditional Commitment and that date. The Conditional Commitment must be updated to reflect the revised terms and conditions.
(f)Where the total Project Costs for an Eligible Project are projected to exceed $25 million, the Applicant must provide a credit rating from a nationally recognized rating agency reflecting the revised Conditional Commitment for the project without a Federal guarantee. Where total Project Costs are projected to be less than $25 million, the Secretary may, on a case-by-case basis, require a credit rating. If a rating is required, an updated rating must be provided to the Secretary not later than 30 days prior to closing.
(g)Changes in the terms and conditions of the financing arrangements will affect the Credit Subsidy Cost for the Loan Guarantee Agreement. DOE may postpone the expected closing date pursuant to any changes submitted under paragraph
(e)and
(f)of this section. In addition, DOE may choose to terminate the Conditional Commitment. § 609.10 Loan Guarantee Agreement.
(a)Only a Loan Guarantee Agreement executed by a duly authorized DOE Contracting Officer can contractually obligate DOE to guarantee loans or other debt obligations.
(b)DOE is not bound by oral representations made during the Pre-Application stage, if Pre-Applications were solicited, or Application stage, or during any negotiation process.
(c)Except if explicitly authorized by an Act of Congress, no funds obtained from the Federal Government, or from a loan or other instrument guaranteed by the Federal Government, may be used to pay for Credit Subsidy Costs, administrative fees, or other fees charged by or paid to DOE relating to the Title XVII program or any loan guarantee there under.
(d)Prior to the execution by DOE of a Loan Guarantee Agreement, DOE must ensure that the following requirements and conditions, which must be specified in the Loan Guarantee Agreement, are satisfied:
(1)The project qualifies as an Eligible Project under the Act and is not a research, development, or demonstration project or a project that employs Commercial Technologies in service in the United States;
(2)The project will be constructed and operated in the United States, the employment of the new or significantly improved technology in the project has the potential to be replicated in other commercial projects in the United States, and this technology is or is likely to be available in the United States for further commercial application;
(3)The face value of the debt guaranteed by DOE is limited to no more than 80 percent of total Project Costs.
(i)Where DOE guarantees 100 percent of the Guaranteed Obligation, the loan shall be funded by the Federal Financing Bank;
(ii)Where DOE guarantees more than 90 percent of the Guaranteed Obligation, the guaranteed portion cannot be separated from or “stripped” from the non-guaranteed portion of the Guaranteed Obligation if the loan is participated, syndicated or otherwise resold in the secondary market;
(iii)Where DOE guarantees 90 percent or less of the Guaranteed Obligation, the guaranteed portion may be separated from or “stripped” from the non-guaranteed portion of the Guaranteed Obligation, if the loan is participated, syndicated or otherwise resold in the secondary debt market;
(5)The Borrower and other principals involved in the project have made or will make a significant equity investment in the project;
(6)The Borrower is obligated to make full repayment of the principal and interest on the Guaranteed Obligations and other project debt over a period of up to the lesser of 30 years or 90 percent of the projected useful life of the project's major physical assets, as calculated in accordance with generally accepted accounting principles and practices. The non-guaranteed portion of any Guaranteed Obligation must be repaid on a pro-rata basis, and may not be repaid on a shorter amortization schedule than the guaranteed portion;
(7)The loan guarantee does not finance, either directly or indirectly, tax-exempt debt obligations, consistent with the requirements of section 149(b) of the Internal Revenue Code;
(8)The amount of the loan guaranteed, when combined with other funds committed to the project, will be sufficient to carry out the project, including adequate contingency funds;
(9)There is a reasonable prospect of repayment by Borrower of the principal of and interest on the Guaranteed Obligations and other project debt;
(10)The Borrower has pledged project assets and other collateral or surety, including non project-related assets, determined by DOE to be necessary to secure the repayment of the Guaranteed Obligations;
(11)The Loan Guarantee Agreement and related documents include detailed terms and conditions necessary and appropriate to protect the interest of the United States in the case of default, including ensuring availability of all the intellectual property rights, technical data including software, and physical assets necessary for any person or entity, including DOE, to complete, operate, convey, and dispose of the defaulted project;
(12)The interest rate on any Guaranteed Obligation is determined by DOE, after consultation with the Treasury Department, to be reasonable, taking into account the range of interest rates prevailing in the private sector for similar obligations of comparable risk guaranteed by the Federal government;
(13)Any Guaranteed Obligation is not subordinate to any loan or other debt obligation and is in a first lien position on all assets of the project and all additional collateral pledged as security for the Guaranteed Obligations and other project debt;
(14)There is satisfactory evidence that Borrower and Eligible Lenders or other Holders are willing, competent, and capable of performing the terms and conditions of the Guaranteed Obligations and other debt obligation and the Loan Guarantee Agreement, and will diligently pursue the project;
(15)The Borrower has made the initial (or total) payment of fees for the Administrative Cost of Issuing a Loan Guarantee for the construction and operational phases of the project (Third Fee), as specified in the Conditional Commitment;
(16)The Eligible Lender, other Holder or servicer has taken and is obligated to continue to take those actions necessary to perfect and maintain liens on assets which are pledged as collateral for the Guaranteed Obligation;
(17)If Borrower is to make payment in full for the Credit Subsidy Cost of the loan guarantee pursuant to section 1702(b)(2) of the Act, such payment must be received by DOE prior to, or at the time of, closing;
(18)DOE or its representatives have access to the project site at all reasonable times in order to monitor the performance of the project;
(19)DOE, the Eligible Lender, or other Holder and Borrower have reached an agreement as to the information that will be made available to DOE and the information that will be made publicly available;
(20)The prospective Borrower has filed applications for or obtained any required regulatory approvals for the project and is in compliance, or promptly will be in compliance, where appropriate, with all Federal, state, and local regulatory requirements;
(21)Borrower has no delinquent Federal debt, including tax liabilities, unless the delinquency has been resolved with the appropriate Federal agency in accordance with the standards of the Debt Collection Improvement Act of 1996;
(22)The Loan Guarantee Agreement contains such other terms and conditions as DOE deems reasonable and necessary to protect the interest of the United States; and
(i)The Lender is an Eligible Lender, as defined in § 609.2 of this part, and meets DOE's lender eligibility and performance requirement contained in §§ 609.11
(a)and
(b)of this part; and
(ii)The servicer meets the servicing performance requirements of § 609.11(c) of this part.
(e)The Loan Guarantee Agreement must provide that, in the event of a default by the Borrower:
(1)Interest accrues on the Guaranteed Obligations at the rate stated in the Loan Guarantee Agreement or Loan Agreement, until DOE makes full payment of the defaulted Guaranteed Obligations and, except when debt is funded through the Federal Financing Bank, DOE is not required to pay any premium, default penalties, or prepayment penalties;
(2)Upon payment of the Guaranteed Obligations by DOE, DOE is subrogated to the rights of the Holders of the debt, including all related liens, security, and collateral rights and has superior rights in and to the property acquired from the recipient of the payment as provided in § 609.15 of this part.
(3)The Eligible Lender or other servicer acting on DOE's behalf is obligated to take those actions necessary to perfect and maintain liens on assets which are pledged as collateral for the Guaranteed Obligations.
(4)The holder of pledged collateral is obligated to take such actions as DOE may reasonably require to provide for the care, preservation, protection, and maintenance of such collateral so as to enable the United States to achieve maximum recovery upon default by Borrower on the Guaranteed Obligations.
(f)The Loan Guarantee Agreement must contain audit provisions which provide, in substance, as follows:
(1)The Eligible Lender or other Holder or other party servicing the Guaranteed Obligations, as applicable, and the Borrower, must keep such records concerning the project as are necessary to facilitate an effective and accurate audit and performance evaluation of the project as required in § 609.17 of this part.
(2)DOE and the Comptroller General, or their duly authorized representatives, must have access, for the purpose of audit and examination, to any pertinent books, documents, papers, and records of the Borrower, Eligible Lender or other Holder, or other party servicing the Guaranteed Obligations, as applicable. Examination of records may be made during the regular business hours of the Borrower, Eligible Lender or other Holder, or other party servicing the Guaranteed Obligations, or at any other time mutually convenient as required in § 609.17 of this part. (g)(1) An Eligible Lender or other Holder may sell, assign or transfer a Guaranteed Obligation to another Eligible Lender that meets the requirements of § 609.11 of this part. Such Eligible Lender to which a Guaranteed Obligation is assigned or transferred, is required to fulfill all servicing, monitoring, and reporting requirements contained in the Loan Guarantee Agreement and these regulations if the transferring Eligible Lender was performing these functions and transfer such functions to the new Eligible Lender. Any assignment or transfer, however, of the servicing, monitoring, and reporting functions must be approved by DOE in writing in advance of such assignment.
(2)The Secretary, or the Secretary's designee or contractual agent, for the purpose of identifying Holders with the right to receive payment under the guarantees shall include in the Loan Guarantee Agreement or related documents a procedure for tracking and identifying Holders of Guarantee Obligations. These duties usually will be performed by the servicer. Any contractual agent approved by the Secretary to perform this function cannot transfer or assign this responsibility without the prior written consent of the Secretary. § 609.11 Lender eligibility and servicing requirements.
(a)An Eligible Lender shall meet the following requirements:
(1)Not be debarred or suspended from participation in a Federal government contract (under 48 CFR part 9.4) or participation in a non-procurement activity (under a set of uniform regulations implemented for numerous agencies, such as DOE, at 2 CFR part 180);
(2)Not be delinquent on any Federal debt or loan;
(3)Be legally authorized to enter into loan guarantee transactions authorized by the Act and these regulations and is in good standing with DOE and other Federal agency loan guarantee programs;
(4)Be able to demonstrate, or has access to, experience in originating and servicing loans for commercial projects similar in size and scope to the project under consideration; and
(5)Be able to demonstrate experience or capability as the lead lender or underwriter by presenting evidence of its participation in large commercial projects or energy-related projects or other relevant experience; or
(6)Be the Federal Financing Bank.
(b)When performing its duties to review and evaluate a proposed Eligible Project prior to the submission of a Pre-Application or Application, as appropriate, by the Project Sponsor through the execution of a Loan Guarantee Agreement, the Eligible Lender or DOE if loans are funded by the Federal Financing Bank, shall exercise the level of care and diligence that a reasonable and prudent lender would exercise when reviewing, evaluating and disbursing a loan made by it without a Federal guarantee.
(c)The servicing duties shall be performed by the Eligible Lender, DOE or other servicer if approved by the Secretary. When performing the servicing duties the Eligible Lender, DOE or other servicer shall exercise the level of care and diligence that a reasonable and prudent lender would exercise when servicing a loan made without a Federal guarantee, including:
(1)During the construction period, enforcing all of the conditions precedent to all loan disbursements, as provided in the Loan Guarantee Agreement, Loan Agreement and related documents;
(2)During the operational phase, monitoring and servicing the Debt Obligations and collection of the outstanding principal and accrued interest as well as ensuring that the collateral package securing the Guaranteed Obligations remains uncompromised; and
(3)As specified by DOE, providing annual or more frequent financial and other reports on the status and condition of the Guaranteed Obligations and the Eligible Project, and promptly notifying DOE if it becomes aware of any problems or irregularities concerning the Eligible Project or the ability of the Borrower to make payment on the Guaranteed Obligations or other debt obligations.
(d)With regard to partial guarantees, even though DOE may in part rely on the Eligible Lender or other servicer to service and monitor the Guaranteed Obligation, DOE will also conduct its own independent monitoring and review of the Eligible Project. § 609.12 Project costs.
(a)Before entering into a Loan Guarantee Agreement, DOE shall determine the estimated Project Costs for the project that is the subject of the agreement. To assist the Department in making that determination, the Applicant must estimate, calculate and record all such costs incurred in the design, engineering, financing, construction, startup, commissioning and shakedown of the project in accordance with generally accepted accounting principles and practices. Among other things, the Applicant must calculate the sum of necessary, reasonable and customary costs that it has paid and expects to pay, which are directly related to the project, including costs for escalation and contingencies, to estimate the total Project Costs.
(b)Project Costs include:
(1)Costs of acquisition, lease, or rental of real property, including engineering fees, surveys, title insurance, recording fees, and legal fees incurred in connection with land acquisition, lease or rental, site improvements, site restoration, access roads, and fencing;
(2)Costs of engineering, architectural, legal and bond fees, and insurance paid in connection with construction of the facility; and materials, labor, services, travel and transportation for facility design, construction, startup, commissioning and shakedown;
(3)Costs of equipment purchases;
(4)Costs to provide equipment, facilities, and services related to safety and environmental protection;
(5)Financial and legal services costs, including other professional services and fees necessary to obtain required licenses and permits and to prepare environmental reports and data;
(6)The cost of issuing project debt, such as fees, transaction and legal costs and other normal charges imposed by Eligible Lenders and other Holders;
(7)Costs of necessary and appropriate insurance and bonds of all types;
(8)Costs of design, engineering, startup, commissioning and shakedown;
(9)Costs of obtaining licenses to intellectual property necessary to design, construct, and operate the project;
(10)A reasonable contingency reserve for cost overruns during construction; and
(11)Capitalized interest necessary to meet market requirements, reasonably required reserve funds and other carrying costs during construction; and
(12)Other necessary and reasonable costs.
(c)Project Costs do not include:
(1)Fees and commissions charged to Borrower, including finder's fees, for obtaining Federal or other funds;
(2)Parent corporation or other affiliated entity's general and administrative expenses, and non-project related parent corporation or affiliated entity assessments, including organizational expenses;
(3)Goodwill, franchise, trade, or brand name costs;
(4)Dividends and profit sharing to stockholders, employees, and officers;
(5)Research, development, and demonstration costs of readying the innovative energy or environmental technology for employment in a commercial project;
(6)Costs that are excessive or are not directly required to carry out the project, as determined by DOE, including but not limited to the cost of hedging instruments;
(7)Expenses incurred after startup, commissioning, and shakedown before the facility has been placed in service;
(8)Borrower-paid Credit Subsidy Costs and Administrative Costs of Issuing a Loan Guarantee; and
(9)Operating costs. § 609.13 Principal and interest assistance contract. With respect to the guaranteed portion of any Guaranteed Obligation, and subject to the availability of appropriations, DOE may enter into a contract to pay Holders, for and on behalf of Borrower, from funds appropriated for that purpose, the principal and interest charges that become due and payable on the unpaid balance of the guaranteed portion of the Guaranteed Obligation, if DOE finds that:
(a)The Borrower:
(1)Is unable to make the payments and is not in default; and
(2)Will, and is financially able to, continue to make the scheduled payments on the remaining portion of the principal and interest due under the non-guaranteed portion of the debt obligation, if any, and other debt obligations of the project, or an agreement, approved by DOE, has otherwise been reached in order to avoid a payment default on non-guaranteed debt.
(b)It is in the public interest to permit Borrower to continue to pursue the purposes of the project;
(c)In paying the principal and interest, the Federal government expects a probable net benefit to the Government will be greater than that which would result in the event of a default;
(d)The payment authorized is no greater than the amount of principal and interest that Borrower is obligated to pay under the terms of the Loan Guarantee Agreement; and
(e)Borrower agrees to reimburse DOE for the payment (including interest) on terms and conditions that are satisfactory to DOE and executes all written contracts required by DOE for such purpose. § 609.14 Full faith and credit and incontestability. The full faith and credit of the United States is pledged to the payment of all Guaranteed Obligations issued in accordance with this part with respect to principal and interest. Such guarantee shall be conclusive evidence that it has been properly obtained; that the underlying loan qualified for such guarantee; and that, but for fraud or material misrepresentation by the Holder, such guarantee will be presumed to be valid, legal, and enforceable. § 609.15 Default, demand, payment, and collateral liquidation.
(a)In the event that the Borrower has defaulted in the making of required payments of principal or interest on any portion of a Guaranteed Obligation, and such default has not been cured within the period of grace provided in the Loan Guarantee Agreement and/or the Loan Agreement, the Eligible Lender or other Holder, or nominee or trustee empowered to act for the Eligible Lender or other Holder (referred to in this section collectively as “Holder”), may make written demand upon the Secretary for payment pursuant to the provisions of the Loan Guarantee Agreement.
(b)In the event that the Borrower is in default as a result of a breach of one or more of the terms and conditions of the Loan Guarantee Agreement, note, mortgage, Loan Agreement, or other contractual obligations related to the transaction, other than the Borrower's obligation to pay principal or interest on the Guaranteed Obligation, as provided in paragraph
(a)of this section, the Holder will not be entitled to make demand for payment pursuant to the Loan Guarantee Agreement, unless the Secretary agrees in writing that such default has materially affected the rights of the parties, and finds that the Holder should be entitled to receive payment pursuant to the Loan Guarantee Agreement.
(c)In the event that the Borrower has defaulted as described in paragraph
(a)of this section and such default is not cured during the grace period provided in the Loan Guarantee Agreement, the Secretary shall notify the U.S. Attorney General and may cause the principal amount of all Guaranteed Obligations, together with accrued interest thereon, and all amounts owed to the United States by Borrower pursuant to the Loan Guarantee Agreement, to become immediately due and payable by giving the Borrower written notice to such effect (without the need for consent or other action on the part of the Holders of the Guaranteed Obligations). In the event the Borrower is in default as described in paragraph
(b)of this section, where the Secretary determines in writing that such a default has materially affected the rights of the parties, the Borrower shall be given the period of grace provided in the Loan Guarantee Agreement to cure such default. If the default is not cured during the period of grace, the Secretary may cause the principal amount of all Guaranteed Obligations, together with accrued interest thereon, and all amounts owed to the United States by Borrower pursuant to the Loan Guarantee Agreement, to become immediately due and payable by giving the Borrower written notice to such effect (without any need for consent or other action on the part of the Holders of the Guaranteed Obligations).
(d)No provision of this regulation shall be construed to preclude forbearance by the Holder with the consent of the Secretary for the benefit of the Borrower.
(e)Upon the making of demand for payment as provided in paragraph
(a)or
(b)of this section, the Holder shall provide, in conjunction with such demand or immediately thereafter, at the request of the Secretary, the supporting documentation specified in the Loan Guarantee Agreement and any other supporting documentation as may reasonably be required to justify such demand.
(f)Payment as required by the Loan Guarantee Agreement of the Guaranteed Obligation shall be made 60 days after receipt by the Secretary of written demand for payment, provided that the demand complies with the terms of the Loan Guarantee Agreement. The Loan Guarantee Agreement shall provide that interest shall accrue to the Holder at the rate stated in the Loan Guarantee Agreement until the Guaranteed Obligation has been fully paid by the Federal government.
(g)The Loan Guarantee Agreement shall provide that, upon payment of the Guaranteed Obligations, the Secretary shall be subrogated to the rights of the Holders and shall have superior rights in and to the property acquired from the Holders. The Holder shall transfer and assign to the Secretary all rights held by the Holder of the Guaranteed Obligation. Such assignment shall include all related liens, security, and collateral rights to the extent held by the Holder.
(h)Where the Loan Guarantee Agreement so provides, the Eligible Lender or other Holder, or other servicer, as appropriate, and the Secretary may jointly agree to a plan of liquidation of the assets pledged to secure the Guaranteed Obligation.
(i)Where payment of the Guaranteed Obligation has been made and the Eligible Lender or other Holder or other servicer has not undertaken a plan of liquidation, the Secretary, in accordance with the rights received through subrogation and acting through the U.S. Attorney General, may seek to foreclose on the collateral assets and/or take such other legal action as necessary for the protection of the Government.
(j)If the Secretary is awarded title to collateral assets pursuant to a foreclosure proceeding, the Secretary may take action to complete, maintain, operate, or lease the project facilities, or otherwise dispose of any property acquired pursuant to the Loan Guarantee Agreement or take any other necessary action which the Secretary deems appropriate, in order that the original goals and objectives of the project will, to the extent possible, be realized.
(k)In addition to foreclosure and sale of collateral pursuant thereto, the U.S. Attorney General shall take appropriate action in accordance with rights contained in the Loan Guarantee Agreement to recover costs incurred by the Government as a result of the defaulted loan or other defaulted obligation. Any recovery so received by the U.S. Attorney General on behalf of the Government shall be applied in the following manner: First to the expenses incurred by the U.S. Attorney General and DOE in effecting such recovery; second, to reimbursement of any amounts paid by DOE as a result of the defaulted obligation; third, to any amounts owed to DOE under related principal and interest assistance contracts; and fourth, to any other lawful claims held by the Government on such process. Any sums remaining after full payment of the foregoing shall be available for the benefit of other parties lawfully entitled to claim them.
(l)If there was a partial guarantee of the Guaranteed Obligation by DOE, the remaining funds received as a result of the liquidation of project assets may, if so agreed in advance, be applied as follows:
(1)First, to the payment of reasonable and customary fees and expenses incurred in the liquidation; and
(2)Second, distributed among the Holders of the debt on no greater than a pro rata share basis.
(m)No action taken by the Eligible Lender or other Holder or other servicer in the liquidation of any pledged assets will affect the rights of any party, including the Secretary, having an interest in the loan or other debt obligations, to pursue, jointly or severally, to the extent provided in the Loan Guarantee Agreement, legal action against the Borrower or other liable parties, for any deficiencies owing on the balance of the Guaranteed Obligations or other debt obligations after application of the proceeds received upon liquidation.
(n)In the event that the Secretary considers it necessary or desirable to protect or further the interest of the United States in connection with the liquidation of collateral or recovery of deficiencies due under the loan, the Secretary will take such action as may be appropriate under the circumstances.
(o)Nothing in this part precludes the Secretary from purchasing the Holder's interest in the project upon liquidation. § 609.16 Perfection of liens and preservation of collateral.
(a)The Loan Guarantee Agreement and other documents related thereto shall provide that:
(1)The Eligible Lender or, or DOE in conjunction with the Federal Financing Bank where the loan is funded by the Federal Financing Bank, or other Holder or other servicer will take those actions necessary to perfect and maintain liens, as applicable, on assets which are pledged as collateral for the guaranteed portion of the loan; and
(2)Upon default by the Borrower, the holder of pledged collateral shall take such actions as the Secretary may reasonably require to provide for the care, preservation, protection, and maintenance of such collateral so as to enable the United States to achieve maximum recovery from the pledged assets. The Secretary shall reimburse the holder of collateral for reasonable and appropriate expenses incurred in taking actions required by the Secretary. Except as provided in § 609.15, no party may waive or relinquish, without the consent of the Secretary, any collateral securing the Guaranteed Obligation to which the United States would be subrogated upon payment under the Loan Guarantee Agreement.
(b)In the event of a default, the Secretary may enter into such contracts as the Secretary determines are required to preserve the collateral. The cost of such contracts may be charged to the Borrower. § 609.17 Audit and access to records.
(a)The Loan Guarantee Agreement and related documents shall provide that:
(1)The Eligible Lender, or DOE in conjunction with the Federal Financing Bank where loans are funded by the Federal Financing Bank or other Holder or other party servicing the Guaranteed Obligations, as applicable, and the Borrower, shall keep such records concerning the project as is necessary, including the Pre-Application, Application, Term Sheet, Conditional Commitment, Loan Guarantee Agreement, Credit Agreement, mortgage, note, disbursement requests and supporting documentation, financial statements, audit reports of independent accounting firms, lists of all project assets and non-project assets pledged as security for the Guaranteed Obligations, all off-take and other revenue producing agreements, documentation for all project indebtedness, income tax returns, technology agreements, documentation for all permits and regulatory approvals and all other documents and records relating to the Eligible Project, as determined by the Secretary, to facilitate an effective audit and performance evaluation of the project; and
(2)The Secretary and the Comptroller General, or their duly authorized representatives, shall have access, for the purpose of audit and examination, to any pertinent books, documents, papers and records of the Borrower, Eligible Lender or DOE or other Holder or other party servicing the Guaranteed Obligation, as applicable. Such inspection may be made during regular office hours of the Borrower, Eligible Lender or DOE or other Holder, or other party servicing the Eligible Project and the Guaranteed Obligations, as applicable, or at any other time mutually convenient.
(b)The Secretary may from time to time audit any or all items of costs included as Project Costs in statements or certificates submitted to the Secretary or the servicer or otherwise, and may exclude or reduce the amount of any item which the Secretary determines to be unnecessary or excessive, or otherwise not to be an item of Project Costs. The Borrower will make available to the Secretary all books and records and other data available to the Borrower in order to permit the Secretary to carry out such audits. The Borrower should represent that it has within its rights access to all financial and operational records and data relating to Project Costs, and agrees that it will, upon request by the Secretary, exercise such rights in order to make such financial and operational records and data available to the Secretary. In exercising its rights hereunder, the Secretary may utilize employees of other Federal agencies, independent accountants, or other persons. § 609.18 Deviations. To the extent that such requirements are not specified by the Act or other applicable statutes, DOE may authorize deviations on an individual request basis from the requirements of this part upon a finding that such deviation is essential to program objectives and the special circumstances stated in the request make such deviation clearly in the best interest of the Government. DOE will consult with OMB and the Secretary of the Treasury before DOE grants any deviation that would constitute a substantial change in the financial terms of the Loan Guarantee Agreement and related documents. Any deviation, however, that was not captured in the Credit Subsidy Cost will require either additional fees or discretionary appropriations. A recommendation for any deviation shall be submitted in writing to DOE. Such recommendation must include a supporting statement, which indicates briefly the nature of the deviation requested and the reasons in support thereof. [FR Doc. E7-20552 Filed 10-22-07; 8:45 am] BILLING CODE 6450-01-P 72 204 Tuesday, October 23, 2007 Notices Part IV Office of Personnel Management Excepted Service; Consolidated Listing of Schedules A, B, and C Exceptions; Notice OFFICE OF PERSONNEL MANAGEMENT Excepted Service; Consolidated Listing of Schedules A, B, and C Exceptions AGENCY: Office of Personnel Management. ACTION: Notice. SUMMARY: This gives a consolidated notice of all positions excepted under Schedules A, B, and C as of June 30, 2007, as required by Civil Service Rule VI, Exceptions from the Competitive Service. FOR FURTHER INFORMATION: C. Penn, Group Manager, Executive Resources Services Group,
(202)606-2246. SUPPLEMENTARY INFORMATION: Civil Service Rule VI (5 CFR 6.1) requires The U.S. Office of Personnel Management
(OPM)to publish notice of all exceptions granted under Schedules A, B, and C. Title 5, Code of Federal Regulations, 213.103(c), further requires that a consolidated listing, current as of June 30 of each year, be published annually as a notice in the **Federal Register** . That notice follows. OPM maintains continuing information on the status of all Schedule A, B, and C excepted appointing authorities. Interested parties needing information about specific authorities during the year may obtain information by writing to the Executive Resources Services Group, Center for Human Resources, Human Capital Leadership and Merit System Accountability Division, Office of Personnel Management, 1900 E Street, NW., Room 6484, Washington, DC 20415, or by calling
(202)606-2246. The following exceptions were current on June 30, 2007: Schedule A Section 213.3102 Entire Executive Civil Service
(a)Positions of Chaplain and Chaplain's Assistant.
(b)(Reserved).
(c)Positions to which appointments are made by the President without confirmation by the Senate.
(d)Attorneys.
(e)Law clerk trainee positions. Appointments under this paragraph shall be confined to graduates of recognized law schools or persons having equivalent experience and shall be for periods not to exceed 14 months pending admission to the bar. No person shall be given more than one appointment under this paragraph. However, an appointment that was initially made for less than 14 months may be extended for not to exceed 14 months in total duration.
(f)(Reserved).
(g)(Reserved).
(h)(Reserved).
(i)Temporary and less-than-full time positions for which examining is impracticable. These are:
(1)Positions in remote/isolated locations where examination is impracticable. A remote/isolated location is outside of the local commuting area of a population center from which an employee can reasonably be expected to travel on short notice under adverse weather and/or road conditions which are normal for the area. For this purpose, a population center is a town with housing, schools, health care, stores and other businesses in which the servicing examining office can schedule tests and/or reasonably expect to attract applicants. An individual appointed under this authority may not be employed in the same agency under a combination of this and any other appointment to positions involving related duties and requiring the same qualifications for more than 1,040 working hours in a service year. Temporary appointments under this authority may be extended in 1-year increments, with no limit on the number of such extensions, as an exception to the service limits in Sec. 213.104.
(2)Positions for which a critical hiring need exists. This includes both short-term positions and continuing positions that an agency must fill on an interim basis pending completion of competitive examining, clearances, or other procedures required for a longer appointment. Appointments under this authority may not exceed 30 days and may be extended up to an additional 30 days if continued employment is essential to the agency's operations. The appointments may not be used to extend the service limit of any other appointing authority. An agency may not employ the same individual under this authority for more than 60 days in any 12-month period.
(3)Other positions for which OPM determines that examining is impracticable.
(j)Positions filled by current or former Federal employees eligible for placement under special statutory provisions. Appointments under this authority are subject to the following conditions:
(1)Eligible employees.
(i)Persons previously employed as National Guard Technicians under 32 U.S.C. 709(a) who are entitled to placement under Sec. 353.110 of this chapter, or who are applying for or receiving an annuity under the provisions of 5 U.S.C. 8337(h) or 5 U.S.C. 8456 by reason of a disability that disqualifies them from membership in the National Guard or from holding the military grade required as a condition of their National Guard employment;
(ii)Executive branch employees (other than employees of intelligence agencies) who are entitled to placement under Sec. 353.110, but who are not eligible for reinstatement or noncompetitive appointment under the provisions of part 315 of this chapter.
(iii)Legislative and judicial branch employees and employees of the intelligence agencies defined in 5 U.S.C. 2302(a)(2)(C)(ii) who are entitled to placement assistance under Sec. 353.110.
(2)Employees excluded. Employees who were last employed in Schedule C or under a statutory authority that specified the employee served at the discretion, will, or pleasure of the agency are not eligible for appointment under this authority.
(3)Position to which appointed. Employees who are entitled to placement under Sec. 353.110 will be appointed to a position that OPM determines is equivalent in pay and grade to the one the individual left, unless the individual elects to be placed in a position of lower grade or pay. National Guard Technicians whose eligibility is based upon a disability may be appointed at the same grade, or equivalent, as their National Guard Technician position or at any lower grade for which they are available.
(4)Conditions of appointment.
(i)Individuals whose placement eligibility is based on an appointment without time limit will receive appointments without time limit under this authority. These appointees may be reassigned, promoted, or demoted to any position within the same agency for which they qualify.
(ii)Individuals who are eligible for placement under Sec. 353.110 based on a time-limited appointment will be given appointments for a time period equal to the unexpired portion of their previous appointment.
(k)Positions without compensation provided appointments thereto meet the requirements of applicable laws relating to compensation.
(l)Positions requiring the temporary or intermittent employment of professional, scientific, and technical experts for consultation purposes.
(m)(Reserved).
(n)Any local physician, surgeon, or dentist employed under contract or on a part-time or fee basis.
(o)Positions of a scientific, professional or analytical nature when filled by bona fide members of the faculty of an accredited college or university who have special qualifications for the positions to which appointed. Employment under this provision shall not exceed 130 working days a year. (p)-(q) (Reserved).
(r)Positions established in support of fellowship and similar programs that are filled from limited applicant pools and operate under specific criteria developed by the employing agency and/or a non-Federal organization. These programs may include: internship or fellowship programs that provide developmental or professional experiences to individuals who have completed their formal education; training and associateship programs designed to increase the pool of qualified candidates in a particular occupational specialty; professional/industry exchange programs that provide for a cross-fertilization between the agency and the private sector to foster mutual understanding, an exchange of ideas, or to bring experienced practitioners to the agency; residency programs through which participants gain experience in a Federal clinical environment; and programs that require a period of Government service in exchange for educational, financial or other assistance. Appointment under this authority may not exceed 4 years.
(s)Positions with compensation fixed under 5 U.S.C. 5351-5356 when filled by student-employees assigned or attached to Government hospitals, clinics or medical or dental laboratories. Employment under this authority may not exceed 4 years.
(t)(Reserved)
(u)*Appointment of Persons with Mental Retardation, Severe Physical Disabilities, or Psychiatric Disabilities* .
(1)*Purpose* . An agency may appoint, on a permanent, time-limited, or temporary basis, a person with mental retardation, a severe physical disability according to the provisions proscribed below.
(2)*Proof of disability.*
(i)An agency must require proof of an applicant's mental retardation, severe physical disability, or psychiatric disability prior to making an appointment under this section.
(ii)An agency may accept, as proof of an individual's mental retardation, severe physical disability, or psychiatric disability, appropriate documentation (e.g., records, statements, or other appropriate information) issued from a licensed medical professional (e.g., a physician or other medical professional duly certified by a State, the District of Columbia, or a U.S. territory that issues or provides disability benefits).
(3)*Certification of job readiness* .
(i)An agency may accept certification that the individual is likely to succeed in the performance of the duties of the position for which he or she is applying. Certification of job readiness may be provided by any entity specified in paragraph (u)(2)(ii) of this section.
(ii)In cases where certification has not been provided, the hiring agency may give the individual a temporary appointment under this authority to determine the individual's job readiness. The agency may also accept, at the agency's discretion, service under another type of temporary appointment in the competitive or excepted services as proof of job readiness.
(4)*Permanent or time-limited employment options* .
(i)An agency may make a permanent or time-limited appointment based upon:
(A)Proof of disability; and
(B)A certification of job readiness, or demonstration of job readiness through a temporary appointment.
(5)*Temporary employment options* . An agency may make a temporary appointment based upon proof of disability specified in paragraph (u)(2) of this section when:
(i)It is necessary to observe the applicant on the job to determine whether the applicant is able or ready to perform the duties of the position. When the agency uses this option to determine and individual's job readiness, the hiring agency may convert the individual to a permanent appointment whenever the agency determines the individual is able to perform the duties of the position; or
(ii)The individual has a certification of job readiness and the work is of a temporary nature.
(6)*Noncompetitive conversion to the competitive service* .
(i)An agency may noncompetitively convert to the competitive service an employee who has completed 2 years of satisfactory service in a nontemporary appointment under this authority in accordance with the provision of Executive Order 12125 as amended by Executive Order 13124 and § 315.709 of this chapter.
(ii)An agency may credit the time spent on a temporary appointment specified in paragraph (u)5) of this section in paragraph towards the 2-year requirement. (v)-(w) (Reserved).
(x)Positions for which a local recruiting shortage exists when filled by inmates of Federal, District of Columbia, and State (including the Commonwealth of Puerto Rico, the Virgin Islands, Guam, American Samoa, and the Trust Territory of the Pacific Islands) penal and correctional institutions under work-release programs authorized by the Prisoner Rehabilitation Act of 1965, the District of Columbia Work Release Act, or under work-release programs authorized by the States. Initial appointments under this authority may not exceed 1 year. An initial appointment may be extended for one or more periods not to exceed 1 additional year each upon a finding that the inmate is still in a work-release status and that a local recruiting shortage still exists. No person may serve under this authority longer than 1 year beyond the date of that person's release from custody.
(y)(Reserved).
(z)Not to exceed 30 positions of assistants to top-level Federal officials when filled by persons designated by the President as White House Fellows.
(aa)Scientific and professional research associate positions at GS-11 and above when filled on a temporary basis by persons having a doctoral degree in an appropriate field of study for research activities of mutual interest to appointees and their agencies. Appointments are limited to persons referred by the National Research Council under its post-doctoral research associate program, may not exceed 2 years, and are subject to satisfactory outcome of evaluation of the associate's research during the first year.
(bb)Positions when filled by aliens in the absence of qualified citizens. Appointments under this authority are subject to prior approval of OPM except when the authority is specifically included in a delegated examining agreement with OPM. (cc)-(ee) (Reserved).
(ff)Not to exceed 25 positions when filled in accordance with an agreement between OPM and the Department of Justice by persons in programs administered by the Attorney General of the United States under Public Law 91-452 and related statutes. A person appointed under this authority may continue to be employed under it after he/she ceases to be in a qualifying program only as long as he/she remains in the same agency without a break in service. (gg)-(hh) (Reserved).
(ii)Positions of Fellows in the Presidential Management Fellows Program. Initial appointments of Fellows are made at either the GS-9, GS-11, or GS-12 level (or their equivalents), depending on the candidate's qualifications. Appointments are made under this authority for 2 years; however, upon approval of OPM, the head of the department, agency, or component within the Executive Office of the President may extend the appointment for up to 1 additional year. Upon the Fellow's satisfactory completion of the Program, as certified by the employing agency's Executive Resources Board
(ERG)or equivalent, the employing agency must noncompetitively appoint the Fellow to a full-time, permanent position in the competitive service as prescribed in Sec. 315.708 and part 362 of this chapter.
(jj)Positions of Senior Fellows in the Presidential Management Fellows Program. Initial appointments are made at either the GS-13, GS-14, or GS-15 level (or their equivalents), depending on the candidate's qualifications. Appointments may be made under this authority for 2 years; however, upon approval of OPM, the head of the department, agency, or component within the Executive Office of the President may extend the Senior Fellow's appointment for up to 1 additional year. Upon the Senior Fellow's satisfactory completion of the Program, as certified by the employing agency's Executive Resources Board
(ERB)or equivalent, the employing agency must noncompetitively appoint the Fellow to a full-time, permanent position in the competitive service as prescribed in Sec. 315.708 and part 362 of this chapter. If a Senior Fellow successfully completes the Program, as certified by the appointing agency's ERB or equivalent, he/she may, at the agency's discretion, be appointed to a position in the Senior Executive Service
(SES)(or equivalent) without further competition and only one time, in the same manner, and subject to the same Qualifications Review Board review, as an individual who has successfully completed an OPM-approved SES candidate development program under parts 317 and 412 of this chapter.
(kk)(Reserved).
(ll)Positions as needed of readers for blind employees, interpreters for deaf employees and personal assistants for handicapped employees, filled on a full-time, part-time, or intermittent basis. Section 213.3103 Executive Office of the President
(a)Office of Administration.
(1)Not to exceed 75 positions to provide administrative services and support to the White House Office.
(b)Office of Management and Budget.
(1)Not to exceed 15 positions at grades GS-5/15.
(c)Council on Environmental Quality.
(1)Professional and technical positions in grades GS-9 through 15 on the staff of the Council. (d)-(f) (Reserved).
(g)National Security Council.
(1)All positions on the staff of the Council.
(h)Office of Science and Technology Policy.
(1)Thirty positions of Senior Policy Analyst, GS-15; Policy Analyst, GS-11/14; and Policy Research Assistant, GS-9, for employment of anyone not to exceed 5 years on projects of a high priority nature.
(i)Office of National Drug Control Policy.
(1)Not to exceed 15 positions, GS-15 and below, of senior policy analysts and other personnel with expertise in drug-related issues and/or technical knowledge to aid in anti-drug abuse efforts. Section 213.3104 Department of State
(a)Office of the Secretary.
(1)All positions, GS-15 and below, on the staff of the Family Liaison Office, Director General of the Foreign Service and the Director of Personnel, Office of the Under Secretary for Management.
(2)One position of Museum Curator (Arts), in the Office of the Under Secretary for Management, whose incumbent will serve as Director, Diplomatic Reception Rooms. No new appointments may be made after February 28, 1997.
(b)American Embassy, Paris, France.
(1)Chief, Travel and Visitor Unit. No new appointments may be made under this authority after August 10, 1981. (c)-(f) (Reserved).
(g)Bureau of Population, Refugees, and Migration.
(1)Not to exceed 10 positions at grades GS-5 through 11 on the staff of the Bureau.
(h)Bureau of Administration.
(1)One Presidential Travel Officer. No new appointments may be made under this authority after June 11, 1981.
(2)One position of the Director, Art in Embassies Program, GM-1001-15.
(3)Up to 250 time-limited positions within the Department of State in support of the June 2004 Economic Summit of Industrial Nations. No new appointments may be made under this authority after June 30, 2004. Section 213.3105 Department of the Treasury
(a)Office of the Secretary.
(1)Not to exceed 20 positions at the equivalent of GS-13 through GS-17 to supplement permanent staff in the study of complex problems relating to international financial, economic, trade, and energy policies and programs of the Government, when filled by individuals with special qualifications for the particular study being undertaken. Employment under this authority may not exceed 4 years.
(2)Not to exceed 20 positions, which will supplement permanent staff involved in the study and analysis of complex problems in the area of domestic economic and financial policy. Employment under this authority may not exceed 4 years.
(3)Not to exceed 50 positions in the Office of the Under Secretary (Enforcement).
(b)U.S. Customs Service.
(1)Positions in foreign countries designated as “interpreter-translator” and “special employees,” when filled by appointment of persons who are not citizens of the United States; and positions in foreign countries of messenger and janitor. (2)-(8) (Reserved).
(9)Not to exceed 25 positions of Customs Patrol Officers in the Papago Indian Agency in the State of Arizona when filled by the appointment of persons of one-fourth or more Indian blood.
(d)Office of Thrift Supervision.
(1)All positions in the supervision policy and supervision operations functions of OTS. No new appointments may be made under this authority after December 31, 1993.
(e)Internal Revenue Service.
(1)Twenty positions of investigator for special assignments.
(f)(Reserved).
(g)Bureau of Alcohol, Tobacco, and Firearms.
(1)One hundred positions of criminal investigator for special assignments.
(2)One non-permanent Senior Level
(SL)Criminal Investigator to serve as a senior advisor to the Assistant Director (Firearms, Explosives, and Arson). Section 213.3106 Department of Defense
(a)Office of the Secretary. (1)-(5) (Reserved).
(6)One Executive Secretary, U.S.-USSR Standing Consultative Commission and Staff Analyst (SALT), Office of the Assistant Secretary of Defense (International Security Affairs).
(b)Entire Department (including the Office of the Secretary of Defense and the Departments of the Army, Navy, and Air Force).
(1)Professional positions in Military Dependent School Systems overseas.
(2)Positions in attache 1 systems overseas, including all professional and scientific positions in the Naval Research Branch Office in London.
(3)Positions of clerk-translator, translator, and interpreter overseas.
(4)Positions of Educational Specialist the incumbents of which will serve as Director of Religious Education on the staffs of the chaplains in the military services.
(5)Positions under the program for utilization of alien scientists, approved under pertinent directives administered by the Director of Defense Research and Engineering of the Department of Defense, when occupied by alien scientists initially employed under the program including those who have acquired United States citizenship during such employment.
(6)Positions in overseas installations of the DOD when filled by dependents of military or civilian employees of the U.S. Government residing in the area. Employment under this authority may not extend longer than 2 months following the transfer from the area or separation of a dependent's sponsor: Provided, that
(i)A school employee may be permitted to complete the school year; and
(ii)An employee other than a school employee may be permitted to serve up to 1 additional year when the military department concerned finds that the additional employment is in the interest of management.
(7)Twenty secretarial and staff support positions at GS-12 or below on the White House Support Group.
(8)Positions in DOD research and development activities occupied by participants in the DOD Science and Engineering Apprenticeship Program for High School Students. Persons employed under this authority shall be bona fide high school students, at least 14 years old, pursuing courses related to the position occupied and limited to 1,040 working hours a year. Children of DOD employees may be appointed to these positions, notwithstanding the sons and daughters restriction, if the positions are in field activities at remote locations. Appointments under this authority may be made only to positions for which qualification standards established under 5 CFR part 302 are consistent with the education and experience standards established for comparable positions in the competitive service. Appointments under this authority may not be used to extend the service limits contained in any other appointing authority.
(9)Positions engaged in the reconstruction of Iraq for hiring non-U.S. citizens when there is a severe shortage of candidates with U.S. citizenship. This authority is limited to appointments made on or before July 1, 2004, and is subject to any restrictions set forth in the Department of Defense FY 2002 Appropriations Act.
(10)Temporary or time-limited positions in direct support of U.S. Government efforts to rebuild and create an independent, free and secure Iraq and Afghanistan, when no other appropriate appointing authority applies. Positions will generally be located in Iraq or Afghanistan, but may be in other locations, including the United States, when directly supporting operations in Iraq or in Afghanistan. No new appointments may be made under this authority after March 31, 2009.
(c)(Reserved).
(d)General.
(1)Positions concerned with advising, administering, supervising, or performing work in the collection, processing, analysis, production, evaluation, interpretation, dissemination, and estimation of intelligence information, including scientific and technical positions in the intelligence function; and positions involved in the planning, programming, and management of intelligence resources when, in the opinion of OPM, it is impracticable to examine. This authority does not apply to positions assigned to cryptologic and communications intelligence activities/functions.
(2)Positions involved in intelligence-related work of the cryptologic intelligence activities of the military departments. This includes all positions of intelligence research specialist, and similar positions in the intelligence classification series; all scientific and technical positions involving the applications of engineering, physical or technical sciences to intelligence work; and professional as well as intelligence technician positions in which a majority of the incumbent's time is spent in advising, administering, supervising, or performing work in the collection, processing, analysis, production, evaluation, interpretation, dissemination, and estimation of intelligence information or in the planning, programming, and management of intelligence resources.
(e)Uniformed Services University of the Health Sciences.
(1)Positions of President, Vice Presidents, Assistant Vice Presidents, Deans, Deputy Deans, Associate Deans, Assistant Deans, Assistants to the President, Assistants to the Vice Presidents, Assistants to the Deans, Professors, Associate Professors, Assistant Professors, Instructors, Visiting Scientists, Research Associates, Senior Research Associates, and Postdoctoral Fellows.
(2)Positions established to perform work on projects funded from grants.
(f)National Defense University.
(1)Not to exceed 16 positions of senior policy analyst, GS-15, at the Strategic Concepts Development Center. Initial appointments to these positions may not exceed 6 years, but may be extended thereafter in 1-, 2-, or 3-year increments, indefinitely.
(g)Defense Communications Agency.
(1)Not to exceed 10 positions at grades GS-10/15 to staff and support the Crisis Management Center at the White House.
(h)Defense Acquisitions University.
(1)The Provost and professors.
(i)George C. Marshall European Center for Security Studies, Garmisch, Germany.
(1)The Director, Deputy Director, and positions of professor, instructor, and lecturer at the George C. Marshall European Center for Security Studies, Garmisch, Germany, for initial employment not to exceed 3 years, which may be renewed in increments from 1 to 2 years thereafter.
(j)Asia-Pacific Center for Security Studies, Honolulu, Hawaii.
(1)The Director, Deputy Director, Dean of Academics, Director of College, deputy department chairs, and senior positions of professor, associate professor, and research fellow within the Asia Pacific Center. Appointments may be made not to exceed 3 years and may be extended for periods not to exceed 3 years.
(k)Business Transformation Agency.
(1)Fifty temporary or time-limited (not to exceed four years) positions, at grades GS-11-15. The authority will be used to appoint persons in the following series: Management and Program Analysis, GS-343: Logistics Management, GS-346; Financial Management Programs, GS-501; Accounting, GS-510; Computer Engineering, GS-854; Business and Industry, GS-1101; Operations Research, GS-1515; Computer Science, GS-1550; General Supply, GS-2001; Supply Program Management, GS-2003; Inventory Management, GS-2010; and Information Technology, GS-2210. Section 213.3107 Department of the Army (a)-(c) (Reserved).
(d)U.S. Military Academy, West Point, New York.
(1)Civilian professors, instructors, teachers (except teachers at the Children's School), Cadet Social Activities Coordinator, Chapel Organist and Choir-Master, Director of Intercollegiate Athletics, Associate Director of Intercollegiate Athletics, coaches, Facility Manager, Building Manager, three Physical Therapists (Athletic Trainers), Associate Director of Admissions for Plans and Programs, Deputy Director of Alumni Affairs; and librarian when filled by an officer of the Regular Army retired from active service, and the military secretary to the Superintendent when filled by a U.S. Military Academy graduate retired as a regular commissioned officer for disability. (e)-(f) (Reserved).
(g)Defense Language Institute.
(1)All positions (professors, instructors, lecturers) which require proficiency in a foreign language or a knowledge of foreign language teaching methods.
(h)Army War College, Carlisle Barracks, PA.
(1)Positions of professor, instructor, or lecturer associated with courses of instruction of at least 10 months duration for employment not to exceed 5 years, which may be renewed in 1-, 2-, 3-, 4-, or 5-year increments indefinitely thereafter.
(i)(Reserved).
(j)U.S. Military Academy Preparatory School, Fort Monmouth, New Jersey.
(1)Positions of Academic Director, Department Head, and Instructor.
(k)U.S. Army Command and General Staff College, Fort Leavenworth, Kansas.
(1)Positions of professor, associate professor, assistant professor, and instructor associated with courses of instruction of at least 10 months duration, for employment not to exceed up to 5 years, which may be renewed in 1-, 2-, 3-, 4-, or 5-year increments indefinitely thereafter. Section 213.3108 Department of the Navy
(a)General. (1)-(14) (Reserved).
(15)Marine positions assigned to a coastal or seagoing vessel operated by a naval activity for research or training purposes.
(16)All positions necessary for the administration and maintenance of the official residence of the Vice President.
(b)Naval Academy, Naval Postgraduate School, and Naval War College.
(1)Professors, instructors, and teachers; the Director of Academic Planning, Naval Postgraduate School; and the Librarian, Organist-Choirmaster, Registrar, the Dean of Admissions, and social counselors at the Naval Academy.
(c)Chief of Naval Operations.
(1)One position at grade GS-12 or above that will provide technical, managerial, or administrative support on highly classified functions to the Deputy Chief of Naval Operations (Plans, Policy, and Operations).
(d)Military Sealift Command.
(1)All positions on vessels operated by the Military Sealift Command.
(e)Pacific Missile Range Facility, Barking Sands, Hawaii.
(1)All positions. This authority applies only to positions that must be filled pending final decision on contracting of Facility operations. No new appointments may be made under this authority after July 29, 1988.
(f)(Reserved).
(g)Office of Naval Research.
(1)Scientific and technical positions, GS-13/15, in the Office of Naval Research International Field Office which covers satellite offices within the Far East, Africa, Europe, Latin America, and the South Pacific. Positions are to be filled by personnel having specialized experience in scientific and/or technical disciplines of current interest to the Department of the Navy. Section 213.3109 Department of the Air Force
(a)Office of the Secretary.
(1)One Special Assistant in the Office of the Secretary of the Air Force. This position has advisory rather than operating duties except as operating or administrative responsibilities may be exercised in connection with the pilot studies.
(b)General.
(1)Professional, technical, managerial and administrative positions supporting space activities, when approved by the Secretary of the Air Force.
(2)One hundred forty positions, serviced by Hill Air Force Base, Utah, engaged in interdepartmental activities in support of national defense projects involving scientific and technical evaluations.
(c)Not to exceed 20 professional positions, GS-11 through GS-15, in Detachments 6 and 51, SM-ALC, Norton and McClellan Air Force Bases, California, which will provide logistic support management to specialized research and development projects.
(d)U.S. Air Force Academy, Colorado.
(1)(Reserved).
(2)Positions of Professor, Associate Professor, Assistant Professor, and Instructor, in the Dean of Faculty, Commandant of Cadets, Director of Athletics, and Preparatory School of the United States Air Force Academy.
(e)(Reserved).
(f)Air Force Office of Special Investigations.
(1)Positions of Criminal Investigators/Intelligence Research Specialists, GS-5 through GS-15, in the Air Force Office of Special Investigations.
(g)Not to exceed eight positions, GS-12 through 15, in Headquarters Air Force Logistics Command, DCS Material Management, Office of Special Activities, Wright-Patterson Air Force Base, Ohio, which will provide logistic support management staff guidance to classified research and development projects.
(h)Air University, Maxwell Air Force Base, Alabama.
(1)Positions of Professor, Instructor, or Lecturer.
(i)Air Force Institute of Technology, Wright-Patterson Air Force Base, Ohio.
(1)Civilian deans and professors.
(j)Air Force Logistics Command.
(1)One Supervisory Logistics Management Specialist, GM-346-14, in Detachment 2, 2762 Logistics Management Squadron (Special), Greenville, Texas.
(k)One position of Supervisory Logistics Management Specialist, GS-346-15, in the 2762nd Logistics Squadron (Special), at Wright-Patterson Air Force Base, Ohio.
(l)One position of Commander, Air National Guard Readiness Center, Andrews Air Force Base, Maryland. Section 213.3110 Department of Justice
(a)General.
(1)Deputy U.S. Marshals employed on an hourly basis for intermittent service.
(2)Positions at GS-15 and below on the staff of an office of a special counsel. (3)-(5) (Reserved).
(6)Positions of Program Manager and Assistant Program Manager supporting the International Criminal Investigative Training Assistance Program in foreign countries. Initial appointments under this authority may not exceed 2 years, but may be extended in one-year increments for the duration of the in-country program.
(b)Immigration and Naturalization Service.
(1)(Reserved).
(2)Not to exceed 500 positions of interpreters and language specialists, GS-1040-5/9.
(3)Not to exceed 25 positions, GS-15 and below, with proficiency in speaking, reading, and writing the Russian language and serving in the Soviet Refugee Processing Program with permanent duty location in Moscow, Russia.
(c)Drug Enforcement Administration.
(1)(Reserved).
(2)Four hundred positions of Intelligence Research Agent and/or Intelligence Operation Specialist in the GS-132 series, grades GS-9 through GS-15.
(3)Not to exceed 200 positions of Criminal Investigator (Special Agent). New appointments may be made under this authority only at grades GS-7/11.
(d)National Drug Intelligence Center. All positions. Section 213.3111 Department of Homeland Security
(a)Up to 50 positions at the GS-5 through 15 grade levels at the Department of Homeland Security. No new appointments may be made under this authority after September 30, 2005. (b)(1) Ten positions for over site policy and direction of sensitive law enforcement activities.
(c)Up to 15 Senior Level and General Schedule (or equivalent) positions within the Homeland Security Labor Relations Board and the Homeland Security Mandatory Removal Board. Section 213.3112 Department of the Interior
(a)General.
(1)Technical, maintenance, and clerical positions at or below grades GS-7, WG-10, or equivalent, in the field service of the Department of the Interior, when filled by the appointment of persons who are certified as maintaining a permanent and exclusive residence within, or contiguous to, a field activity or district, and as being dependent for livelihood primarily upon employment available within the field activity of the Department.
(2)All positions on Government-owned ships or vessels operated by the Department of the Interior.
(3)Temporary or seasonal caretakers at temporarily closed camps or improved areas to maintain grounds, buildings, or other structures and prevent damages or theft of Government property. Such appointments shall not extend beyond 130 working days a year without the prior approval of OPM.
(4)Temporary, intermittent, or seasonal field assistants at GS-7, or its equivalent, and below in such areas as forestry, range management, soils, engineering, fishery and wildlife management, and with surveying parties. Employment under this authority may not exceed 180 working days a year.
(5)Temporary positions established in the field service of the Department for emergency forest and range fire prevention or suppression and blister rust control for not to exceed 180 working days a year: Provided, that an employee may work as many as 220 working days a year when employment beyond 180 days is required to cope with extended fire seasons or sudden emergencies such as fire, flood, storm, or other unforeseen situations involving potential loss of life or property.
(6)Persons employed in field positions, the work of which is financed jointly by the Department of the Interior and cooperating persons or organizations outside the Federal service.
(7)All positions in the Bureau of Indian Affairs and other positions in the Department of the Interior directly and primarily related to providing services to Indians when filled by the appointment of Indians. The Secretary of the Interior is responsible for defining the term “Indian.”
(8)Temporary, intermittent, or seasonal positions at GS-7 or below in Alaska, as follows: Positions in nonprofessional mining activities, such as those of drillers, miners, caterpillar operators, and samplers. Employment under this authority shall not exceed 180 working days a year and shall be appropriate only when the activity is carried on in a remote or isolated area and there is a shortage of available candidates for the positions.
(9)Temporary, part-time, or intermittent employment of mechanics, skilled laborers, equipment operators and tradesmen on construction, repair, or maintenance work not to exceed 180 working days a year in Alaska, when the activity is carried on in a remote or isolated area and there is a shortage of available candidates for the positions.
(10)Seasonal airplane pilots and airplane mechanics in Alaska, not to exceed 180 working days a year.
(11)Temporary staff positions in the Youth Conservation Corps Centers operated by the Department of the Interior. Employment under this authority shall not exceed 11 weeks a year except with prior approval of OPM.
(12)Positions in the Youth Conservation Corps for which pay is fixed at the Federal minimum wage rate. Employment under this authority may not exceed 10 weeks.
(b)(Reserved).
(c)Indian Arts and Crafts Board.
(1)The Executive Director.
(d)(Reserved).
(e)Office of the Assistant Secretary, Territorial and International Affairs.
(1)(Reserved).
(2)Not to exceed four positions of Territorial Management Interns, grades GS-5, GS-7, or GS-9, when filled by territorial residents who are U.S. citizens from the Virgin Islands or Guam; U.S. nationals from American Samoa; or in the case of the Northern Marianas, will become U.S. citizens upon termination of the U.S. trusteeship. Employment under this authority may not exceed 6 months.
(3)(Reserved).
(4)Special Assistants to the Governor of American Samoa who perform specialized administrative, professional, technical, and scientific duties as members of his or her immediate staff.
(f)National Park Service.
(1)(Reserved).
(2)Positions established for the administration of Kalaupapa National Historic Park, Molokai, Hawaii, when filled by appointment of qualified patients and Native Hawaiians, as provided by Public Law 95-565.
(3)Seven full-time permanent and 31 temporary, part-time, or intermittent positions in the Redwood National Park, California, which are needed for rehabilitation of the park, as provided by Public Law 95-250.
(4)One Special Representative of the Director.
(5)All positions in the Grand Portage National Monument, Minnesota, when filled by the appointment of recognized members of the Minnesota Chippewa Tribe.
(g)Bureau of Reclamation.
(1)Appraisers and examiners employed on a temporary, intermittent, or part-time basis on special valuation or prospective-entrymen-review projects where knowledge of local values on conditions or other specialized qualifications not possessed by regular Bureau employees are required for successful results. Employment under this provision shall not exceed 130 working days a year in any individual case: Provided, that such employment may, with prior approval of OPM, be extended for not to exceed an additional 50 working days in any single year.
(h)Office of the Deputy Assistant Secretary for Territorial Affairs.
(1)Positions of Territorial Management Interns, GS-5, when filled by persons selected by the Government of the Trust Territory of the Pacific Islands. No appointment may extend beyond 1 year. Section 213.3113 Department of Agriculture
(a)General.
(1)Agents employed in field positions the work of which is financed jointly by the Department and cooperating persons, organizations, or governmental agencies outside the Federal service. Except for positions for which selection is jointly made by the Department and the cooperating organization, this authority is not applicable to positions in the Agricultural Research Service or the National Agricultural Statistics Service. This authority is not applicable to the following positions in the Agricultural Marketing Service: Agricultural commodity grader (grain) and (meat), (poultry), and (dairy), agricultural commodity aid (grain), and tobacco inspection positions. (2)-(4) (Reserved).
(5)Temporary, intermittent, or seasonal employment in the field service of the Department in positions at and below GS-7 and WG-10 in the following types of positions: Field assistants for sub professional services; agricultural helpers, helper-leaders, and workers in the Agricultural Research Service and the Animal and Plant Health Inspection Service; and subject to prior OPM approval granted in the calendar year in which the appointment is to be made, other clerical, trades, crafts, and manual labor positions. Total employment under this subparagraph may not exceed 180 working days in a service year: Provided, that an employee may work as many as 220 working days in a service year when employment beyond 180 days is required to cope with extended fire seasons or sudden emergencies such as fire, flood, storm, or other unforeseen situations involving potential loss of life or property. This paragraph does not cover trades, crafts, and manual labor positions covered by paragraph
(i)of Sec. 213.3102 or positions within the Forest Service. (6)-(7) (Reserved). (b)-(c) (Reserved).
(d)Farm Service Agency.
(1)(Reserved).
(2)Members of State Committees: Provided, that employment under this authority shall be limited to temporary intermittent
(WAE)positions whose principal duties involve administering farm programs within the State consistent with legislative and Departmental requirements and reviewing national procedures and policies for adaptation at State and local levels within established parameters. Individual appointments under this authority are for 1 year and may be extended only by the Secretary of Agriculture or his designee. Members of State Committees serve at the pleasure of the Secretary.
(e)Rural Development.
(1)(Reserved).
(2)County committeemen to consider, recommend, and advise with respect to the Rural Development program. (3)-(5) (Reserved).
(6)Professional and clerical positions in the Trust Territory of the Pacific Islands when occupied by indigenous residents of the Territory to provide financial assistance pursuant to current authorizing statutes.
(f)Agricultural Marketing Service.
(1)Positions of Agricultural Commodity Graders, Agricultural Commodity Technicians, and Agricultural Commodity Aids at grades GS-9 and below in the tobacco, dairy, and poultry commodities; Meat Acceptance Specialists, GS-11 and below; Clerks, Office Automation Clerks, and Computer Clerks at GS-5 and below; Clerk-Typists at grades GS-4 and below; and Laborers under the Wage System. Employment under this authority is limited to either 1,280 hours or 180 days in a service year.
(2)Positions of Agricultural Commodity Graders, Agricultural Commodity Technicians, and Agricultural Commodity Aids at grades GS-11 and below in the cotton, raisin, and processed fruit and vegetable commodities and the following positions in support of these commodities: Clerks, Office Automation Clerks, and Computer Clerks and Operators at GS-5 and below; Clerk-Typists at grades GS-4 and below; and, under the Federal Wage System, High Volume Instrumentation
(HVI)Operators and HVI Operator Leaders at WG/WL-2 and below, respectively, Instrument Mechanics/Workers/Helpers at WG-10 and below, and Laborers. Employment under this authority may not exceed 180 days in a service year. In unforeseen situations such as bad weather or crop conditions, unanticipated plant demands, or increased imports, employees may work up to 240 days in a service year. Cotton Agricultural Commodity Graders, GS-5, may be employed as trainees for the first appointment for an initial period of 6 months for training without regard to the service year limitation.
(3)Milk Market Administrators.
(4)All positions on the staffs of the Milk Market Administrators. (g)-(k) (Reserved).
(l)Food Safety and Inspection Service. (1)-(2) (Reserved).
(3)Positions of Meat and Poultry Inspectors (Veterinarians at GS-11 and below and non-Veterinarians at appropriate grades below GS-11) for employment on a temporary, intermittent, or seasonal basis, not to exceed 1,280 hours a year.
(m)Grain Inspection, Packers and Stockyards Administration.
(1)One hundred and fifty positions of Agricultural Commodity Aid (Grain), GS-2/4; 100 positions of Agricultural Commodity Technician (Grain), GS-4/7; and 60 positions of Agricultural Commodity Grader (Grain), GS-5/9, for temporary employment on a part-time, intermittent, or seasonal basis not to exceed 1,280 hours in a service year.
(n)Alternative Agricultural Research and Commercialization Corporation.
(1)Executive Director. Section 213.3114 Department of Commerce
(a)General. (1)-(2) (Reserved).
(3)Not to exceed 50 scientific and technical positions whose duties are performed primarily in the Antarctic. Incumbents of these positions may be stationed in the continental United States for periods of orientation, training, analysis of data, and report writing. (b)-(c) (Reserved).
(d)Bureau of the Census.
(1)Managers, supervisors, technicians, clerks, interviewers, and enumerators in the field service, for time-limited employment to conduct a census.
(2)Current Program Interviewers employed in the field service. (e)-(h) (Reserved).
(i)Office of the Under Secretary for International Trade.
(1)Fifteen positions at GS-12 and above in specialized fields relating to international trade or commerce in units under the jurisdiction of the Under Secretary for International Trade. Incumbents will be assigned to advisory rather than to operating duties, except as operating and administrative responsibility may be required for the conduct of pilot studies or special projects. Employment under this authority will not exceed 2 years for an individual appointee.
(2)(Reserved).
(3)Not to exceed 15 positions in grades GS-12 through GS-15, to be filled by persons qualified as industrial or marketing specialists; who possess specialized knowledge and experience in industrial production, industrial operations and related problems, market structure and trends, retail and wholesale trade practices, distribution channels and costs, or business financing and credit procedures applicable to one or more of the current segments of U.S. industry served by the Under Secretary for International Trade, and the subordinate components of his organization which are involved in Domestic Business matters. Appointments under this authority may be made for a period of not to exceed 2 years and may, with prior approval of OPM, be extended for an additional period of 2 years.
(j)National Oceanic and Atmospheric Administration. (1)-(2) (Reserved).
(3)All civilian positions on vessels operated by the National Ocean Service.
(4)Temporary positions required in connection with the surveying operations of the field service of the National Ocean Service. Appointment to such positions shall not exceed 8 months in any 1 calendar year.
(k)(Reserved).
(l)National Telecommunication and Information Administration.
(1)Thirty-eight professional positions in grades GS-13 through GS-15. Section 213.3115 Department of Labor
(a)Office of the Secretary.
(1)Chairman and five members, Employees' Compensation Appeals Board.
(2)Chairman and eight members, Benefits Review Board. (b)-(c) (Reserved).
(d)Employment and Training Administration.
(1)Not to exceed 10 positions of Supervisory Manpower Development Specialist and Manpower Development Specialist, GS-7/15, in the Division of Indian and Native American Programs, when filled by the appointment of persons of one-fourth or more Indian blood. These positions require direct contact with Indian tribes and communities for the development and administration of comprehensive employment and training programs. Section 213.3116 Department of Health and Human Services
(a)General.
(1)Intermittent positions, at GS-15 and below and WG-10 and below, on teams under the National Disaster Medical System including Disaster Medical Assistance Teams and specialty teams, to respond to disasters, emergencies, and incidents/events involving medical, mortuary and public health needs.
(b)Public Health Service.
(1)(Reserved).
(2)Positions at Government sanatoria when filled by patients during treatment or convalescence.
(3)(Reserved).
(4)Positions concerned with problems in preventive medicine financed or participated in by the Department of Health and Human Services and a cooperating State, county, municipality, incorporated organization, or an individual in which at least one-half of the expense is contributed by the participating agency either in salaries, quarters, materials, equipment, or other necessary elements in the carrying on of the work. (5)-(6) (Reserved).
(7)Not to exceed 50 positions associated with health screening programs for refugees.
(8)All positions in the Public Health Service and other positions in the Department of Health and Human Services directly and primarily related to providing services to Indians when filled by the appointment of Indians. The Secretary of Health and Human Services is responsible for defining the term “Indian.”
(9)(Reserved).
(10)Health care positions of the National Health Service Corps for employment of any one individual not to exceed 4 years of service in health manpower shortage areas. (11)-(14) (Reserved).
(15)Not to exceed 200 staff positions, GS-15 and below, in the Immigration Health Service, for an emergency staff to provide health related services to foreign entrants. (c)-(e) (Reserved).
(f)The President's Council on Physical Fitness.
(1)Four staff assistants. Section 213.3117 Department of Education
(a)Positions concerned with problems in education financed and participated in by the Department of Education and a cooperating State educational agency, or university or college, in which there is joint responsibility for selection and supervision of employees, and at least one-half of the expense is contributed by the cooperating agency in salaries, quarters, materials, equipment, or other necessary elements in the carrying on of the work. Section 213.3124 Board of Governors, Federal Reserve System
(a)All positions. Section 213.3127 Department of Veterans Affairs
(a)Construction Division.
(1)Temporary construction workers paid from “purchase and hire” funds and appointed for not to exceed the duration of a construction project.
(b)Not to exceed 400 positions of rehabilitation counselors, GS-3 through GS-11, in Alcoholism Treatment Units and Drug Dependence Treatment Centers, when filled by former patients.
(c)Board of Veterans' Appeals.
(1)Positions, GS-15, when filled by a member of the Board. Except as provided by section 201(d) of Public Law 100-687, appointments under this authority shall be for a term of 9 years, and may be renewed.
(2)Positions, GS-15, when filled by a non-member of the Board who is awaiting Presidential approval for appointment as a Board member.
(d)Not to exceed 600 positions at grades GS-3 through GS-11, involved in the Department's Vietnam Era Veterans Readjustment Counseling Service. Section 213.3128 Broadcasting Board of Governors
(a)International Broadcasting Bureau.
(1)Not to exceed 200 positions at grades GS-15 and below in the Office of Cuba Broadcasting. Appointments may not be made under this authority to administrative, clerical, and technical support positions. Section 213.3132 Small Business Administration
(a)When the President under 42 U.S.C. 1855-1855g, the Secretary of Agriculture under 7 U.S.C. 1961, or the Small Business Administration under 15 U.S.C. 636(b)(1) declares an area to be a disaster area, positions filled by time-limited appointment of employees to make and administer disaster loans in the area under the Small Business Act, as amended. Service under this authority may not exceed 4 years, and no more than 2 years may be spent on a single disaster. Exception to this time limit may only be made with prior Office of Personnel Management approval. Appointments under this authority may not be used to extend the 2-year service limit contained in paragraph
(b)below. No one may be appointed under this authority to positions engaged in long-term maintenance of loan portfolios.
(b)When the President under 42 U.S.C. 1855-1855g, the Secretary of Agriculture under 7 U.S.C. 1961, or the Small Business Administration under 15 U.S.C. 636(b)(1) declares an area to be a disaster area, positions filled by time-limited appointment of employees to make and administer disaster loans in that area under the Small Business Act, as amended. No one may serve under this authority for more than an aggregate of 2 years without a break in service of at least 6 months. Persons who have had more than 2 years of service under paragraph
(a)of this section must have a break in service of at least 8 months following such service before appointment under this authority. No one may be appointed under this authority to positions engaged in long-term maintenance of loan portfolios. Section 213.3133 Federal Deposit Insurance Corporation (a)-(b) (Reserved).
(c)Temporary positions located at closed banks or savings and loan institutions that are concerned with liquidating the assets of the institutions, liquidating loans to the institutions, or paying the depositors of closed insured institutions. New appointments may be made under this authority only during the 60 days immediately following the institution's closing date. Such appointments may not exceed 1 year, but may be extended for not to exceed 1 additional year. Section 213.3136 U.S. Soldiers' and Airmen's Home
(a)(Reserved).
(b)Positions when filled by member-residents of the Home. Section 213.3146 Selective Service System
(a)State Directors. Section 213.3148 National Aeronautics and Space Administration
(a)One hundred and fifty alien scientists having special qualifications in the fields of aeronautical and space research where such employment is deemed by the Administrator of the National Aeronautics and Space Administration to be necessary in the public interest. Section 213.3155 Social Security Administration
(a)Six positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of Arizona when filled by the appointment of persons of one-fourth or more Indian blood.
(b)Seven positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of New Mexico when filled by the appointment of persons of one-fourth or more Indian blood.
(c)Two positions of Social Insurance Representative in the district offices of the Social Security Administration in the State of Alaska when filled by the appointments of persons of one-fourth or more Alaskan Native blood (Eskimos, Indians, or Aleuts). Section 213.3162 The President's Crime Prevention Council
(a)Up to 7 positions established in the President's Crime Prevention Council office created by the Violent Crime Control and Law Enforcement Act of 1994. No new appointments may be made under this authority after March 31, 1998. Section 213.3165 Chemical Safety and Hazard Investigation Board
(a)(Reserved).
(b)Seven positions of either Chemical Incident Investigators or Chemical Safety Recommendation Specialists, in the Office of Investigations and Safety Programs. No new appointments may be made under this authority after October 15, 2002, or until the seventh person (who was given an offer of employment on September 13, 2002, and is waiting a physical examination clearance) is appointed, whichever is later. Section 213.3166 Court Services and Offender Supervision Agency of the District of Columbia
(a)All positions, except for the Director, established to create the Court Services and Offender Supervision Agency of the District of Columbia. No new appointments may be made under this authority after March 31, 2004. Section 213.3170 Millennium Challenge Corporation
(a)All positions established to create the Millennium Challenge Corporation. No new appointments may be made under this authority after September 30, 2007. Section 213.3174 Smithsonian Institution
(a)(Reserved).
(b)All positions located in Panama which are part of or which support the Smithsonian Tropical Research Institute.
(c)Positions at GS-15 and below in the National Museum of the American Indian requiring knowledge of, and experience in, tribal customs and culture. Such positions comprise approximately 10 percent of the Museum's positions and, generally, do not include secretarial, clerical, administrative, or program support positions. Section 213.3175 Woodrow Wilson International Center for Scholars
(a)One Asian Studies Program Administrator, one International Security Studies Program Administrator, one Latin American Program Administrator, one Russian Studies Program Administrator, one West European Program Administrator, one Environmental Change & Security Studies Program Administrator, one United States Studies Program Administrator, two Social Science Program Administrators, and one Middle East Studies Program Administrator. Section 213.3178 Community Development Financial Institutions Fund
(a)All positions in the Fund and positions created for the purpose of establishing the Fund's operations in accordance with the Community Development Banking and Financial Institutions Act of 1994, except for any positions required by the Act to be filled by competitive appointment. No new appointments may be made under this authority after September 23, 1998. Section 213.3180 Utah Reclamation and Conservation Commission
(a)Executive Director. Section 213.3182 National Foundation on the Arts and the Humanities
(a)National Endowment for the Arts.
(1)Artistic and related positions at grades GS-13 through GS-15 engaged in the review, evaluation and administration of applications and grants supporting the arts, related research and assessment, policy and program development, arts education, access programs and advocacy or evaluation of critical arts projects and outreach programs. Duties require artistic stature, in-depth knowledge of arts disciplines and/or artistic-related leadership qualities. Section 213.3190 African Development Foundation
(a)One Enterprise Development Fund Manager. Appointment authority is limited to four years unless extended by the Office of Personnel Management. Section 213.3191 Office of Personnel Management (a)-(c) (Reserved).
(d)Part-time and intermittent positions of test examiners at grades GS-8 and below. Section 213.3194 Department of Transportation
(a)U.S. Coast Guard.
(1)(Reserved).
(2)Lamplighters.
(3)Professors, Associate Professors, Assistant Professors, Instructors, one Principal Librarian, one Cadet Hostess, and one Psychologist (Counseling) at the Coast Guard Academy, New London, Connecticut. (b)-(d) (Reserved).
(e)Maritime Administration. (1)-(2) (Reserved).
(3)All positions on Government-owned vessels or those bareboats chartered to the Government and operated by or for the Maritime Administration. (4)-(5) (Reserved).
(6)U.S. Merchant Marine Academy, positions of: Professors, Instructors, and Teachers, including heads of Departments of Physical Education and Athletics, Humanities, Mathematics and Science, Maritime Law and Economics, Nautical Science, and Engineering; Coordinator of Shipboard Training; the Commandant of Midshipmen, the Assistant Commandant of Midshipmen; Director of Music; three Battalion Officers; three Regimental Affairs Officers; and one Training Administrator.
(7)U.S. Merchant Marine Academy positions of: Associate Dean; Registrar; Director of Admissions; Assistant Director of Admissions; Director, Office of External Affairs; Placement Officer; Administrative Librarian; Shipboard Training Assistant; three Academy Training Representatives; and one Education Program Assistant. Section 213.3195 Federal Emergency Management Agency
(a)Field positions at grades GS-15 and below, or equivalent, which are engaged in work directly related to unique response efforts to environmental emergencies not covered by the Disaster Relief Act of 1974, Public Law 93-288, as amended. Employment under this authority may not exceed 36 months on any single emergency. Persons may not be employed under this authority for long-term duties or for work not directly necessitated by the emergency response effort.
(b)Not to exceed 30 positions at grades GS-15 and below in the Offices of Executive Administration, General Counsel, Inspector General, Comptroller, Public Affairs, Personnel, Acquisition Management, and the State and Local Program and Support Directorate which are engaged in work directly related to unique response efforts to environmental emergencies not covered by the Disaster Relief Act of 1974, Public Law 93-288, as amended. Employment under this authority may not exceed 36 months on any single emergency, or for long-term duties or work not directly necessitated by the emergency response effort. No one may be reappointed under this authority for service in connection with a different emergency unless at least 6 months have elapsed since the individual's latest appointment under this authority.
(c)Not to exceed 350 professional and technical positions at grades GS-5 through GS-15, or equivalent, in Mobile Emergency Response Support Detachments (MERS). Section 213.3199 Temporary Organizations Positions on the staffs of temporary organizations, as defined in 5 U.S.C. 3161(a). Appointments may not exceed 3 years, but temporary organizations may extend the appointments for 2 additional years if the conditions for extension are related to the completion of the study or project. Schedule B Section 213.3202 Entire Executive Civil Service
(a)Student Educational Employment Program—Student Temporary Employment Program.
(1)Students may be appointed to the Student Temporary Employment Program if they are pursuing any of the following educational programs:
(i)High School Diploma or General Equivalency Diploma (GED);
(ii)Vocational/Technical certificate;
(iii)Associate degree;
(iv)Baccalaureate degree;
(v)Graduate degree; or
(vi)Professional degree [The remaining text of provisions pertaining to the Student Temporary Employment Program can be found in 5 CFR 213.3202(a).]
(b)Student Educational Employment Program—Student Career Experience Program. (1)(i) Students may be appointed to the Student Career Experience Program if they are pursuing any of the following educational programs:
(A)High school diploma or General Equivalency Diploma (GED);
(B)Vocational/Technical certificate;
(C)Associate degree;
(D)Baccalaureate degree;
(E)Graduate degree; or
(F)Professional degree.
(ii)Student participants in the Harry S. Truman Foundation Scholarship Program under the provision of Public Law 93-842 are eligible for appointments under the Student Career Experience Program. [The remaining text of provisions pertaining to the Student Career Experience Program can be found in 5 CFR 213.3202(b).] (c)-(i) (Reserved).
(j)Special executive development positions established in connection with Senior Executive Service candidate development programs which have been approved by OPM. A Federal agency may make new appointments under this authority for any period of employment not exceeding 3 years for one individual. (k)-(l) (Reserved).
(m)Positions when filled under any of the following conditions:
(1)Appointment at grades GS-15 and above, or equivalent, in the same or a different agency without a break in service from a career appointment in the Senior Executive Service
(SES)of an individual who:
(i)Has completed the SES probationary period;
(ii)Has been removed from the SES because of less than fully successful executive performance, or a reduction in force; and
(iii)Is entitled to be placed in another civil service position under 5 U.S.C. 3594(b).
(2)Appointment in a different agency without a break in service of an individual originally appointed under paragraph (m)(1).
(3)Reassignment, promotion, or demotion within the same agency of an individual appointed under this authority.
(n)Positions when filled by preference eligibles or veterans who have been separated from the armed forces under honorable conditions after 3 years or more of continuous active service and who, in accordance with 5 U.S.C. 3304(f) (Pub. L. 105-339), applied for these positions under merit promotion procedures when applications were being accepted by the agency from individuals outside its own workforce. These veterans may be promoted, demoted, or reassigned, as appropriate, to other positions within the agency but would remain employed under this excepted authority as long as there is no break in service. No new appointments may be made under this authority after November 30, 1999.
(o)The Federal Career Intern Program—
(1)Appointments. Appointments made under the Federal Career Intern Program may not exceed 2 years, except as described in paragraph (o)(2) of this section. Initial appointments shall be made to a position at the grades GS-5, 7, or 9 (and equivalent) or other trainee levels appropriate for the Program. Agencies must request OPM approval to cover additional grades to meet unique or specialized needs. Agencies will use part 302 of this chapter when making appointments under this Program.
(2)Extensions.
(i)Agencies must request, in writing, OPM approval to extend internships for up to 1 additional year beyond the authorized 2 years for additional training and/or developmental activities. [The remaining text of provisions pertaining to the Federal Career Intern Program can be found in 5 CFR 213.3202(o).] Section 213.3203 Executive Office of the President
(a)(Reserved).
(b)Office of the Special Representative for Trade Negotiations.
(1)Seventeen positions of economist at grades GS-12 through GS-15. Section 213.3204 Department of State (a)(1) One non-permanent senior level position to serve as Science and Technology Advisor to the Secretary. (b)-(c) (Reserved).
(d)Fourteen positions on the household staff of the President's Guest House (Blair and Blair-Lee Houses).
(e)(Reserved).
(f)Scientific, professional, and technical positions at grades GS-12 to GS-15 when filled by persons having special qualifications in foreign policy matters. Total employment under this authority may not exceed 4 years. Section 213.3205 Department of the Treasury
(a)Positions of Deputy Comptroller of the Currency, Chief National Bank Examiner, Assistant Chief National Bank Examiner, Regional Administrator of National Banks, Deputy Regional Administrator of National Banks, Assistant to the Comptroller of the Currency, National Bank Examiner, Associate National Bank Examiner, and Assistant National Bank Examiner, whose salaries are paid from assessments against national banks and other financial institutions. (b-(c) (Reserved).
(d)Positions concerned with the protection of the life and safety of the President and members of his immediate family, or other persons for whom similar protective services are prescribed by law, when filled in accordance with special appointment procedures approved by OPM. Service under this authority may not exceed:
(1)A total of 4 years; or
(2)120 days following completion of the service required for conversion under Executive Order 11203, whichever comes first.
(e)Positions, grades GS-5 through 12, of Treasury Enforcement Agent in the Bureau of Alcohol, Tobacco, and Firearms; and Treasury Enforcement Agent, Pilot, Marine Enforcement Officer, and Aviation Enforcement Officer in the U.S. Customs Service. Service under this authority may not exceed 3 years and 120 days. Section 213.3206 Department of Defense
(a)Office of the Secretary.
(1)(Reserved).
(2)Professional positions at GS-11 through GS-15 involving systems, costs, and economic analysis functions in the Office of the Assistant Secretary (Program Analysis and Evaluation); and in the Office of the Deputy Assistant Secretary (Systems Policy and Information) in the Office of the Assistant Secretary (Comptroller). (3)-(4) (Reserved).
(5)Four Net Assessment Analysts.
(b)Interdepartmental activities.
(1)Five positions to provide general administration, general art and information, photography, and/or visual information support to the White House Photographic Service.
(2)Eight positions, GS-15 or below, in the White House Military Office, providing support for airlift operations, special events, security, and/or administrative services to the Office of the President.
(c)National Defense University.
(1)Sixty-one positions of Professor, GS-13/15, for employment of any one individual on an initial appointment not to exceed 3 years, which may be renewed in any increment from 1 to 6 years indefinitely thereafter.
(d)General.
(1)One position of Law Enforcement Liaison Officer (Drugs), GS-301-15, U.S. European Command.
(2)Acquisition positions at grades GS-5 through GS-11, whose incumbents have successfully completed the required course of education as participants in the Department of Defense scholarship program authorized under 10 U.S.C. 1744.
(e)Office of the Inspector General.
(1)Positions of Criminal Investigator, GS-1811-5/15.
(f)Department of Defense Polygraph Institute, Fort McClellan, Alabama.
(1)One Director, GM-15.
(g)Defense Security Assistance Agency. All faculty members with instructor and research duties at the Defense Institute of Security Assistance Management, Wright Patterson Air Force Base, Dayton, Ohio. Individual appointments under this authority will be for an initial 3-year period, which may be followed by an appointment of indefinite duration. Section 213.3207 Department of the Army
(a)U.S. Army Command and General Staff College.
(1)Seven positions of professors, instructors, and education specialists. Total employment of any individual under this authority may not exceed 4 years. Section 213.3208 Department of the Navy
(a)Naval Underwater Systems Center, New London, Connecticut.
(1)One position of Oceanographer, grade GS-14, to function as project director and manager for research in the weapons systems applications of ocean eddies.
(b)All civilian faculty positions of professors, instructors, and teachers on the staff of the Armed Forces Staff College, Norfolk, Virginia.
(c)One Director and four Research Psychologists at the professor or GS-15 level in the Defense Personnel Security Research and Education Center.
(d)All civilian professor positions at the Marine Corps Command and Staff College.
(e)One position of Staff Assistant, GS-301, whose incumbent will manage the Navy's Executive Dining facilities at the Pentagon.
(f)One position of Housing Management Specialist, GM-1173-14, involved with the Bachelor Quarters Management Study. No new appointments may be made under this authority after February 29, 1992. Section 213.3209 Department of the Air Force
(a)Not to exceed four interdisciplinary positions for the Air Research Institute at the Air University, Maxwell Air Force Base, Alabama, for employment to complete studies proposed by candidates and acceptable to the Air Force. Initial appointments are made not to exceed 3 years, with an option to renew or extend the appointments in increments of 1, 2, or 3 years indefinitely thereafter. (b)-(c) (Reserved).
(d)Positions of Instructor or professional academic staff at the Air University, associated with courses of instruction of varying durations, for employment not to exceed 3 years, which may be renewed for an indefinite period thereafter.
(e)One position of Director of Development and Alumni Programs, GS-301-13, with the U.S. Air Force Academy, Colorado. Section 213.3210 Department of Justice
(a)Criminal Investigator (Special Agent) positions in the Drug Enforcement Administration. New appointments may be made under this authority only at grades GS-5 through 11. Service under the authority may not exceed 4 years. Appointments made under this authority may be converted to career or career-conditional appointments under the provisions of Executive Order 12230, subject to conditions agreed upon between the Department and OPM.
(b)(Reserved).
(c)Not to exceed 400 positions at grades GS-5 through 15 assigned to regional task forces established to conduct special investigations to combat drug trafficking and organized crime.
(d)(Reserved).
(e)Positions, other than secretarial, GS-6 through GS-15, requiring knowledge of the bankruptcy process, on the staff of the offices of United States Trustees or the Executive Office for U.S. Trustees. Section 213.3213 Department of Agriculture
(a)Foreign Agricultural Service.
(1)Positions of a project nature involved in international technical assistance activities. Service under this authority may not exceed 5 years on a single project for any individual unless delayed completion of a project justifies an extension up to but not exceeding 2 years.
(b)General.
(1)Temporary positions of professional Research Scientists, GS-15 or below, in the Agricultural Research Service, Economic Research Service, and the Forest Service, when such positions are established to support the Research Associateship Program and are filled by persons having a doctoral degree in an appropriate field of study for research activities of mutual interest to appointees and the agency. Appointments are limited to proposals approved by the appropriate Administrator. Appointments may be made for initial periods not to exceed 2 years and may be extended for up to 2 additional years. Extensions beyond 4 years, up to a maximum of 2 additional years, may be granted, but only in very rare and unusual circumstances, as determined by the Human Resources Officer for the Research, Education, and Economics Mission Area, or the Human Resources Officer, Forest Service, Forest Service.
(2)Not to exceed 55 Executive Director positions, GM-301-14/15, with the State Rural Development Councils in support of the Presidential Rural Development Initiative. Section 213.3214 Department of Commerce
(a)Bureau of the Census.
(1)(Reserved).
(2)Not to exceed 50 Community Services Specialist positions at the equivalent of GS-5 through GS-12.
(3)(Reserved). (b)-(c) (Reserved).
(d)National Telecommunications and Information Administration.
(1)Not to exceed 10 positions of Telecommunications Policy Analysts, grades GS-11 through 15. Employment under this authority may not exceed 2 years. Section 213.3215 Department of Labor
(a)Chair and a maximum of four additional Members, Administrative Review Board.
(b)(Reserved).
(c)Bureau of International Labor Affairs.
(1)Positions in the Office of Foreign Relations, which are paid by outside funding sources under contracts for specific international labor market technical assistance projects. Appointments under this authority may not be extended beyond the expiration date of the project. Section 213.3217 Department of Education
(a)Seventy-five positions, not to exceed GS-13, of a professional or analytical nature when filled by persons, other than college faculty members or candidates working toward college degrees, who are participating in mid-career development programs authorized by Federal statute or regulation, or sponsored by private nonprofit organizations, when a period of work experience is a requirement for completion of an organized study program. Employment under this authority shall not exceed 1 year.
(b)Fifty positions, GS-7 through GS-11, concerned with advising on education policies, practices, and procedures under unusual and abnormal conditions. Persons employed under this provision must be bona fide elementary school and high school teachers. Appointments under this authority may be made for a period of not to exceed 1 year, and may, with the prior approval of the Office of Personnel Management, be extended for an additional period of 1 year. Section 213.3227 Department of Veterans Affairs
(a)Not to exceed 800 principal investigatory, scientific, professional, and technical positions at grades GS-11 and above in the medical research program.
(b)Not to exceed 25 Criminal Investigator (Undercover) positions, GS-1811, in grades 5 through 12, conducting undercover investigations in the Veterans Health Administration supervised by the VA, Office of Inspector General. Initial appointments shall be greater than 1 year, but not to exceed 4 years and may be extended indefinitely in 1-year increments. Section 213.3236 U.S. Soldiers' and Airmen's Home
(a)(Reserved).
(b)Director, Health Care Services; Director, Member Services; Director, Logistics; and Director, Plans and Programs. Section 213.3240 National Archives and Records Administration
(a)Executive Director, National Historical Publications and Records Commission. Section 213.3248 National Aeronautics and Space Administration
(a)Not to exceed 40 positions of Command Pilot, Pilot, and Mission Specialist candidates at grades GS-7 through 15 in the Space Shuttle Astronaut program. Employment under this authority may not exceed 3 years. Section 213.3255 Social Security Administration
(a)Temporary and time-limited positions in the Ticket to Work and Work Incentives Advisory Panel. No employees may be appointed after November 17, 2007. Section 213.3274 Smithsonian Institution
(a)(Reserved).
(b)Freer Gallery of Art.
(1)Not to exceed four positions of Oriental Art Restoration Specialist at grades GS-9 through GS-15. Section 213.3276 Appalachian Regional Commission
(a)Two Program Coordinators. Section 213.3278 Armed Forces Retirement Home
(a)Naval Home, Gulfport, Mississippi.
(1)One Resource Management Officer position and one Public Works Officer position, GS/GM-15 and below. Section 213.3282 National Foundation on the Arts and the Humanities
(a)(Reserved).
(b)National Endowment for the Humanities.
(1)Professional positions at grades GS-11 through GS-15 engaged in the review, evaluation, and administration of grants supporting scholarship, education, and public programs in the humanities, the duties of which require in-depth knowledge of a discipline of the humanities. Section 213.3291 Office of Personnel Management
(a)Not to exceed eight positions of Associate Director at the Executive Seminar Centers at grades GS-13 and GS-14. Appointments may be made for any period up to 3 years and may be extended without prior approval for any individual. Not more than half of the authorized faculty positions at any one Executive Seminar Center may be filled under this authority.
(b)Twelve positions of faculty members at grades GS-13 through 15, at the Federal Executive Institute. Initial appointments under this authority may be made for any period up to 3 years and may be extended in 1-, 2-, or 3-year increments indefinitely thereafter. Schedule C Section 213.3303 Executive Office of the President Council on Economic Advisors CEGS60001 Confidential Assistant to the Chairman, Council of Economic Advisers CEGS60004 Confidential Assistant to the Chairman, Council of Economic Advisers CEGS60005 Administrative Operations Assistant to the Member (Council for Economic Advisers) Council on Environmental Quality EQGS00018 Associate Director for Congressional Affairs to the Chairman (Council on Environmental Quality) EQGS60019 Associate Director for Agriculture, Lands and Wildlife to the Chairman (Council on Environmental Quality) Office of Management and Budget BOGS00039 Legislative Analyst to the Associate Director for Legislative Affairs BOGS00151 Deputy Press Secretary to the Press Secretary BOGS00152 Portfolio Manager to the Administrator, E-Government and Information Technology BOGS60011 Deputy General Counsel to the General Counsel BOGS60026 Confidential Assistant to the Associate Director for General Government Programs BOGS60027 Confidential Assistant to the Administrator, Office of Information and Regulatory Affairs BOGS60035 Confidential Assistant to the Counselor to the Deputy Director for Management BOGS60141 Deputy to the Associate Director for Legislative Affairs (Senate) to the Executive Associate Director BOGS60153 Confidential Assistant to the Associate Director for National Security Programs BOGS60155 Special Assistant to the Director Office of Management and Budget BOGS60157 Confidential Assistant to the Administrator, E-Government and Information Technology BOGS60158 Special Assistant to the Director Office of Management and Budget BOGS60906 Special Assistant to the Deputy Director for Management to the Deputy Director for Management BOGS60907 Confidential Assistant to the Associate Director for Natural Resource Programs BOGS70001 Associate General Counsel to the General Counsel and Senior Policy Advisor BOGS70002 Press Secretary to the Associate Director for Communications BOGS70004 Special Assistant and Counselor to the Controller, Office of Federal Financial Management BOGS70005 Confidential Assistant to the Associate Director for Legislative Affairs BOGS70007 Press Assistant to the Associate Director for Communications BOGS70008 Deputy to the Associate Director for Legislative Affairs House) BOGS70009 Confidential Assistant to the Deputy Director for Management BOGS70010 Confidential Assistant to the Deputy Director Office of Management and Budget Office of National Drug Control Policy QQGS00028 White House Liaison and Intergovernmental Affairs Specialist to the Chief of Staff QQGS00035 Policy Analyst and Intergovernmental Affairs Liaison to the Associate Deputy Director, State and Local Affairs QQGS60089 Associate Director Office of Legislative Affairs to the Chief of Staff QQGS60093 Special Assistant to the Associate Director Office of Legislative Affairs QQGS60094 Policy Analyst to the Associate Deputy Director, State and Local Affairs QQGS60095 Confidential Assistant to the Associate Director Office of Legislative Affairs QQGS60097 Public Affairs Specialist to the Counselor to the Deputy Director QQGS60098 Special Assistant to the Associate Director for Legislative Affairs QQGS60099 Project Manager to the Deputy Director for Demand Reduction QQGS60100 Confidential Assistant to the Deputy Chief of Staff QQGS70000 Special Assistant to the Deputy Director for Demand Reduction QQGS70001 Public Affairs Specialist to the Associate Director for Public Affairs QQGS70002 Confidential Assistant to the Associate Director for Public Affairs QQGS70003 Deputy Chief of Staff QQGS70004 Public Affairs Specialist (Media Campaign) to the Associate Director for Public Affairs QQGS70005 Confidential Assistant to the Deputy Director for Supply Reduction QQGS70006 Counselor to the Deputy Director for Demand Reduction QQGS70009 Special Assistant to the Director to the Chief of Staff QQGS70010 Legislative Analyst to the Associate Director Office of Legislative Affairs QQGS70011 Confidential Assistant to the Director Office of the United States Trade Representative TNGS00019 Confidential Assistant to the Deputy United States Trade Representative TNGS60023 Public Affairs Specialist to the Assistant U.S. Trade Representative for Public and Media Affairs TNGS60024 Director of Scheduling and Advance to the United States Trade Representative TNGS60025 Deputy Assistant United States Trade Representative for Congressional Affairs to the Assistant United States Trade Representative for Congressional Affairs TNGS60048 Staff Assistant to the Chief of Staff TNGS70001 Confidential Assistant to the Chief of Staff TNGS70002 Special Assistant to Deputy United States Representative TNGS70003 Confidential Assistant to the Deputy United States Trade Representative Official Residence of the Vice President RVGS00005 Deputy Social Secretary and Residence Manager to the Assistant to the Vice President and Deputy Chief of Staff Office of Science and Technology Policy TSGS60042 Deputy to the Associate Director, Technology TSGS60043 Program Management Specialist to the Chief of Staff and General Counsel TSGS60044 Assistant to the Director for Communications and Public Affairs to the Chief of Staff and General Counsel TSGS60045 Assistant to the Director for Legislative Affairs to the Chief of Staff and General Counsel TSGS60046 Assistant Director for Telecommunications and Information Technology to the Chief of Staff and General Counsel TSGS60047 Deputy Chief of Staff and Associate General Counsel to the Chief of Staff and General Counsel Section 213.3304 Department of State DSGS60152 Supervisory Foreign Affairs Officer to the Under Secretary for Global Affairs DSGS60156 Confidential Assistant to the Secretary of State DSGS60194 Senior Advisor to the Under Secretary for Arms Control and Security Affairs DSGS60201 Staff Assistant to the Under Secretary for Global Affairs DSGS60267 Foreign Affairs Officer to the Principal Deputy Assistant Secretary DSGS60389 Senior Advisor to the Assistant Secretary, Bureau of Educational and Cultural Affairs DSGS60394 Legislative Management Officer to the Assistant Secretary for Legislative and Intergovernmental Affairs DSGS60395 Director, Art in Embassies Program to the Deputy Assistant Secretary DSGS60417 Supervisory Foreign Affairs Officer to the Under Secretary for Global Affairs DSGS60567 Senior Advisor to the Assistant Secretary for Near Eastern and South Asian Affairs DSGS60723 Senior Advisor to the Assistant Secretary for Western Hemispheric Affairs DSGS60724 Special Assistant to the Director Office Resource Management Office of Foreign Buildings Operations DSGS60734 Public Affairs Specialist to the Assistant Secretary for Public Affairs DSGS60749 Special Assistant to the Deputy Assistant Secretary DSGS60762 Special Assistant to the Assistant Secretary for Public Affairs DSGS60763 Senior Advisor to the Assistant Secretary for Western Hemispheric Affairs DSGS60765 Public Affairs Specialist to the Assistant Secretary for Public Affairs DSGS60769 Special Assistant to the Under Secretary for Management DSGS60771 Coordinator for Intergovernmental Affairs to the Assistant Secretary for Public Affairs DSGS60773 Special Assistant to the Assistant Secretary, Bureau of Verification, Compliance and Verification DSGS60774 Special Assistant to the Coordinator, Office of the Secretary DSGS60778 Foreign Affairs Officer to the Assistant Secretary for Near Eastern and South Asian Affairs DSGS60782 Special Assistant to the Assistant Secretary for Western Affairs to the Assistant Secretary for African Affairs DSGS60793 Chief, Voluntary Visitors Division to the Assistant Secretary, Bureau of Educational and Cultural Affairs DSGS60795 Member, Policy Planning Staff to the Director, Policy Planning Staff DSGS60817 Legislative Management Officer to the Assistant Secretary for Legislative and Intergovernmental Affairs DSGS60947 Staff Assistant (Visits) to the Supervisory Protocol Officer (Visits) DSGS60950 Foreign Affairs Officer to the Assistant Secretary for Western Hemispheric Affairs DSGS60951 Congressional Affairs Manager to the Assistant Secretary for International Organizational Affairs DSGS60965 Foreign Affairs Officer to the Deputy Assistant Secretary DSGS60971 Public Affairs Specialist to the Assistant Secretary for Public Affairs DSGS60973 Chief of Staff to the Director, Policy Planning Staff DSGS60978 Director, New Partner Outreach to the HIV/AIDS Coordinator DSGS60984 Special Assistant to the Senior Advisor to the Secretary and White House Liaison DSGS60986 Senior Advisor to the Under Secretary for Public Diplomacy and Public Affairs DSGS60990 Senior Advisor to the Assistant Secretary for Near Eastern and South Asian Affairs DSGS60994 Senior Advisor to the Under Secretary for Management DSGS61000 Senior Advisor to the Assistant Secretary for Near Eastern and South Asian Affairs DSGS61005 Legislative Management Officer to the Assistant Secretary for Legislative and Intergovernmental Affairs DSGS61006 Legislative Management Officer to the Assistant Secretary for Legislative and Intergovernmental Affairs DSGS61011 Special Assistant to the Assistant Secretary for African Affairs DSGS61013 Senior Advisor to the Assistant Secretary DSGS61014 Assistant Manager, President's Guest House to the Deputy Chief of Protocol DSGS61019 Senior Advisor to the Under Secretary for Global Affairs DSGS61022 Special Assistant to the Deputy Assistant Secretary DSGS61023 Senior Advisor to the Assistant Secretary for Near Eastern and South Asian Affairs DSGS61026 Special Assistant to the Under Secretary for Public Diplomacy and Public Affairs DSGS61038 Special Assistant to the Chief of Protocol DSGS61042 Foreign Affairs Officer to the Assistant Secretary for International Organizational Affairs DSGS61043 Coordinator for Intergovernmental Affairs to the Deputy Assistant Secretary DSGS61045 Special Assistant to the Assistant Secretary for Democracy Human Rights and Labor DSGS61047 Legislative Management Officer to the Assistant Secretary for Legislative and Intergovernmental Affairs DSGS61052 Special Assistant to the HIV/Aids Coordinator DSGS61061 Protocol Officer (Gifts) to the Chief of Protocol DSGS61071 Public Affairs Specialist to the Assistant Secretary for Public Affairs DSGS61077 Special Assistant to the Coordinator for Counter-Terrorism DSGS61078 Senior Advisor to the Assistant Secretary for Western Hemispheric Affairs DSGS61081 Foreign Affairs Officer to the Director DSGS61083 Public Affairs Specialist to the Assistant Secretary for Public Affairs DSGS61084 Staff Assistant to the Director, Policy Planning Staff DSGS61085 Senior Advisor to the Assistant Secretary, Bureau of Educational and Cultural Affairs DSGS61087 Legislative Management Officer to the Assistant Secretary for Legislative and Intergovernmental Affairs DSGS61088 Special Assistant to the Chief Financial Officer DSGS61089 Supervisory Protocol Officer (Visits) to the Chief of Protocol DSGS61091 Special Assistant to the Under Secretary for Public Diplomacy and Public Affairs DSGS61092 Special Assistant to the Under Secretary for Public Diplomacy and Public Affairs DSGS61093 Public Affairs Officer to the Chief of Protocol DSGS61094 Special Assistant to the Under Secretary for Public Diplomacy and Public Affairs DSGS61095 Special Assistant to the Deputy Assistant Secretary DSGS61096 Senior Advisor to the Director, Policy Planning Staff DSGS61097 Foreign Affairs Officer (Ceremonials) to the Chief of Protocol DSGS61098 Legislative Analyst to the Assistant Secretary for Legislative and Intergovernmental Affairs DSGS61099 Special Assistant to the Chief of Staff DSGS61102 Special Assistant to the Senior Advisor to the Secretary and White House Liaison DSGS61103 Staff Assistant to the Under Secretary for Arms Control and Security Affairs DSGS61104 Special Assistant to the Director, Policy Planning Staff DSGS61105 Senior Advisor to the Ambassador-At-Large (War Crimes) DSGS61106 Staff Assistant to the Assistant Secretary for Economic and Business Affairs DSGS61108 Special Assistant to the Under Secretary for Global Affairs DSGS61109 Public Affairs Specialist to the Assistant Secretary for Western Hemispheric Affairs DSGS61110 Special Assistant to the Assistant Secretary for East Asian and Pacific Affairs DSGS61111 Legislative Management Officer to the Assistant Secretary for Legislative and Intergovernmental Affairs DSGS61112 Senior Advisor to the Assistant Secretary for International Organizational Affairs DSGS61114 Staff Assistant to the Under Secretary for Arms Control and Security Affairs DSGS61115 Foreign Affairs Officer to the Assistant Secretary for International Organizational Affairs DSGS61116 Special Assistant to the Deputy Assistant Secretary DSGS61118 Senior Advisor to the Assistant Secretary for Western Hemispheric Affairs DSGS61119 Staff Assistant to the Assistant Secretary for International Organizational Affairs DSGS61120 Staff Assistant to the Director, Office of International Visitors DSGS61122 Public Affairs Specialist (Speechwriter) to the Assistant Secretary for European Affairs DSGS61123 Staff Assistant to the Assistant Secretary for Western Hemispheric Affairs DSGS61125 Protocol Officer (Visits) to the Chief of Protocol DSGS61126 Staff Assistant to the Director, Policy Planning Staff DSGS61127 Special Assistant to the Assistant Secretary for International Organizational Affairs DSGS61128 Special Assistant to the Under Secretary for Global Affairs DSGS61190 Staff Assistant to the Under Secretary for International Security Affairs DSGS61191 Staff Assistant to the Assistant Secretary Bureau of International Narcotics and Law Enforcement Affairs DSGS61192 Staff Assistant to the Assistant Secretary Bureau of International Narcotics and Law Enforcement Affairs DSGS61193 Legislative Management Officer to the Assistant Secretary for Legislative and Intergovernmental Affairs DSGS61194 Director to the Assistant Secretary for Democracy Human Rights and Labor DSGS61195 Writer-Editor to the Assistant Secretary Bureau of Political-Military Affairs DSGS61196 Special Assistant to the Under Secretary for Arms Control and Security Affairs SGS61197 Assistant Chief of Protocol to the Chief of Protocol DSGS61198 Director of Communications to the HIV/Aids Coordinator DSGS61199 Legislative Management Officer to the Assistant Secretary for Legislative and Intergovernmental Affairs DSGS61200 Staff Assistant to the Under Secretary for Public Diplomacy and Public Affairs DSGS61201 Public Affairs Specialist to the Assistant Secretary Oceans, International Environment and Science Affairs DSGS61203 Special Assistant to the Deputy Assistant Secretary DSGS61205 Protocol Officer (Visits) to the Chief of Protocol DSGS61207 Special Assistant (Senior Advisor) to the Assistant Secretary for Democracy Human Rights and Labor DSGS61208 Legislative Management Officer (Staff Director) to the Assistant Secretary for Legislative and Intergovernmental Affairs DSGS61209 Staff Assistant to the Ambassador-At-Large (War Crimes) DSGS61211 Protocol Officer (Visits) to the Chief of Protocol DSGS61212 Special Assistant to the Women's Human Rights Coordinator DSGS61214 Staff Assistant to the Director, Policy Planning Staff DSGS61217 Public Affairs Specialist to the Assistant Secretary for Public Affairs DSGS61218 Public Affairs Specialist to the Assistant Secretary for Public Affairs DSGS61219 Foreign Affairs Officer to the Assistant Secretary, Bureau of Verification, Compliance and Implementation DSGS61220 Senior Advisor to the Assistant Secretary Oceans, International Environment and Science Affairs DSGS61221 Senior Advisor to the Assistant Secretary for Economic and Business Affairs DSGS61222 Special Assistant to the Principal Deputy Assistant Secretary, Bureau International Narcotics and Law Enforcement Affairs DSGS61223 Special Assistant to the Assistant Secretary for Public Affairs DSGS61226 Staff Assistant to the Assistant Secretary for Public Affairs DSGS61228 Special Assistant to the Assistant Secretary, Bureau of Educational and Cultural Affairs DSGS61229 Protocol Assistant to the Deputy Chief of Protocol DSGS61230 Staff Assistant to the Assistant Secretary, Bureau of Educational and Cultural Affairs DSGS61231 Special Assistant to the Assistant Secretary for Near Eastern and South Asian Affairs DSGS61233 Foreign Affairs Officer to the Assistant Secretary for Western Hemispheric Affairs DSGS61235 Public Affairs Specialist to the Assistant Secretary for Public Affairs DSGS61237 Deputy Chief of Staff to the Secretary of State DSGS61300 Staff Assistant to the Under Secretary for Management DSGS69721 Staff Assistant to the Director, Policy Planning Staff DSGS69722 Senior Advisor to the Assistant Secretary for Democracy Human Rights and Labor Section 213.3305 Department of the Treasury DYGS00230 Public Affairs Specialist to the Director, Public Affairs DYGS00250 Director, Public Affairs to the Deputy Assistant Secretary for Public Affairs DYGS00356 Director, Critical Infrastructure Protection and Compliance Policy to the Deputy Assistant Secretary (Critical Infrastructure Protection and Compliance Policy) DYGS00375 Director of Legislative and Governmental Affairs to the Director of the Mint DYGS00380 Deputy to the Assistant Secretary (Legislative Affairs) to the Assistant Secretary (Deputy Under Secretary) for Legislative Affairs DYGS00407 Senior Advisor to the Assistant Secretary for Financial Markets DYGS00424 Senior Advisor to the Assistant Secretary (Economic Policy) DYGS00429 Executive Assistant to the Secretary DYGS00430 Senior Advisor to the Under Secretary for Domestic Finance DYGS00441 Director of Outreach to the Deputy Assistant Secretary Financial Education) DYGS00453 Media Coordinator to the Assistant Secretary (Public Affairs) and Director of Policy Planning DYGS00455 Special Assistant to the Deputy Assistant Secretary (Financial Education) DYGS00459 Special Assistant to Director of Legislative and Intergovernmental Affairs DYGS00460 Senior Advisor and Chief of Staff to the Under Secretary for Terrorism and Financial Crimes DYGS00464 Special Assistant to the Assistant Secretary (Deputy Under Secretary) for Legislative Affairs DYGS00467 Deputy White House Liaison to the White House Liaison DYGS00468 Public Affairs Specialist to the Director, Public Affairs DYGS00471 Public and Legislative Affairs Manager to the Director Community Development Financial Institutions DYGS00473 Director of Protocol to the Assistant Secretary (Management) and Chief Financial Officer DYGS00474 Scheduler to the Chief of Staff DYGS00476 Director of Operations to the Chief of Staff DYGS00478 Senior Writer to the Treasurer of the United States DYGS00479 Speechwriter to the Senior Speechwriter DYGS00480 Policy Advisor to the Assistant Secretary (Public Affairs) and Director of Policy Planning DYGS00481 Senior Counselor to the Assistant Secretary (Terrorist Financing) DYGS00482 Deputy Executive Secretary to the Executive Secretary DYGS00483 Senior Advisor to the Assistant Secretary (Terrorist Financing) DYGS00484 Executive Secretary Officer to the Executive Secretary DYGS00485 Executive Secretary Officer to the Executive Secretary DYGS00486 Special Assistant for Advance to the Director of Scheduling DYGS00487 Deputy Executive Secretary to the Executive Secretary DYGS00488 Executive Assistant to the Special Envoy for China and the Strategic Economic Dialogue DYGS00489 Operations Coordinator to the Director of Operations DYGS00490 Special Advisor to the Special Envoy for China and the Strategic Economic Dialogue DYGS00491 Senior Advisor to the Assistant Secretary (Deputy Under Secretary) International Affairs DYGS00492 Special Advisor (Legislative Affairs) to the Assistant Secretary (Deputy Under Secretary) for Legislative Affairs DYGS00493 Executive Secretary Officer to the Executive Secretary DYGS00494 Special Assistant to the Director of the Mint DYGS00495 Associate Director of Operations for Advance to the Director of Operations DYGS00496 Special Advisor for Business Affairs and Public Liaison to the Deputy Assistant Secretary for Business Affairs and Public Liaison DYGS00844 Public Affairs Specialist to the Director, Public Affairs DYGS60277 Senior Speechwriter to the Assistant Secretary (Public Affairs) and Director of Policy Planning DYGS60307 Senior Advisor to the Treasurer of the United States DYGS60351 Senior Advisor to the Assistant Secretary (Public Affairs) and Director of Policy Planning DYGS60381 Special Assistant to the Assistant Secretary (Deputy Under Secretary) for Legislative Affairs DYGS60391 Deputy Scheduler to the Chief of Staff DYGS60395 Deputy Executive Secretary to the Executive Secretary DYGS60396 Senior Advisor to the Deputy Assistant Secretary for Business Affairs and Public Liaison DYGS60401 Special Assistant for Advance to the Director of Scheduling DYGS60404 Senior Advisor to the Assistant Secretary (Financial Institutions) DYGS60414 Executive Assistant to the Deputy Secretary of the Treasury DYGS60421 Special Assistant to the Deputy Assistant Secretary for Legislative Affairs Section 213.3306 Department of Defense DDGS00673 Staff Assistant to the Deputy Under Secretary of Defense (Near East/South Asian Affairs) DDGS00682 Staff Assistant to the Deputy Assistant Secretary of Defense (Asia and Pacific) DDGS00714 Special Assistant to the Under Secretary of Defense (Policy) DDGS00771 Staff Assistant to the Principal Deputy Assistant Secretary of Defense (International Security Affairs) DDGS00779 Staff Assistant to the Principal Deputy Assistant Secretary of Defense (International Security Affairs) DDGS16660 Director of Assessments to the Deputy Under Secretary of Defense (International Technology Security) DDGS16692 Confidential Assistant to the Secretary of Defense DDGS16709 Defense Fellow to the Special Assistant to the Secretary of Defense for White House Liaison DDGS16796 Staff Assistant to the Deputy Assistant Secretary of Defense (Forces Policy) DDGS16811 Special Assistant to the Director, Small Business Programs DDGS16823 Public Affairs Specialist to the Deputy Assistant Secretary of Defense (Strategic Communications Planning) DDGS16836 Defense Fellow to the Special Assistant to the Secretary of Defense for White House Liaison DDGS16839 Supervisory Public Affairs Specialist to the Deputy Assistant Secretary of Defense (Internal Communications) DDGS16874 Confidential Assistant to the Assistant Secretary of Defense (Reserve Affairs) DDGS16888 Staff Assistant to the Deputy Assistant Secretary of Defense (Eurasia) DDGS16890 Special Assistant, DUSD (Budget and Appropriations Affairs) to the Deputy Under Secretary of Defense (Resource Planning/Management) DDGS16908 Civilian Executive Assistant to the Special Assistant to the Secretary of Defense for White House Liaison DDGS16909 Staff Assistant to the Special Assistant to the Secretary of Defense for White House Liaison DDGS16913 Defense Fellow to the Special Assistant to the Secretary of Defense for White House Liaison DDGS16914 Personal and Confidential Assistant to the Deputy Secretary of Defense DDGS16915 Special Assistant to the Principal Deputy Assistant Secretary of Defense (Legal Affairs) DDGS16917 Confidential Assistant to the Director of Defense Research and Engineering DDGS16918 Staff Assistant to the Deputy Assistant Secretary of Defense (Negotiations Policy) DDGS16920 Staff Assistant to the Deputy Assistant Secretary of Defense (Negotiations Policy) DDGS16929 Assistant for Research, Analysis and Special Projects to the Special Assistant to the Secretary and Deputy Secretary of Defense DDGS16933 Special Assistant to the Deputy Under Secretary of Defense (Acquisition and Technology) DDGS16940 Research Assistant to the Speechwriter DDGS16941 Special Assistant to the Principal Deputy Assistant Secretary of Defense (Legal Affairs) DDGS16942 Staff Assistant to the Deputy Assistant Secretary of Defense (Negotiations Policy) DDGS16948 Special Assistant to the Principal Deputy Under Secretary of Defense (Comptroller) DDGS16949 Defense Fellow to the Special Assistant to the Secretary of Defense for White House Liaison DDGS16958 Confidential Assistant to the Principal Deputy Assistant Secretary of Defense for Public Affairs DDGS16959 Special Assistant to the Principal Deputy Assistant Secretary of Defense (Legal Affairs) DDGS16962 Speechwriter to the Principal Deputy Assistant Secretary of Defense for Public Affairs DDGS16963 Protocol Specialist to the Special Assistant to the Secretary of Defense for Protocol DDGS16965 Defense Fellow to the Special Assistant to the Secretary of Defense for White House Liaison DDGS16970 Special Assistant to the Principal Deputy Assistant Secretary of Defense (Legal Affairs) DDGS16971 Staff Assistant to the Deputy Assistant Secretary of Defense (Detainee Affairs) DDGS16972 Staff Assistant to the Assistant Secretary of Defense (Special Operations/Low Intensity Conflict and Interdependent Capabilities) DDGS16979 Personal and Confidential Assistant to the General Counsel DDGS16980 Personal and Confidential Assistant to the Assistant Secretary of Defense (International Secretary Policy) DDGS16982 Staff Specialist to the Deputy Assistant Secretary of Defense for Strategy, Plans and Resources DDGS16983 Defense Fellow to the Special Assistant to the Secretary of Defense for White House Liaison DDGS16984 Defense Fellow to the Special Assistant to the Secretary of Defense for White House Liaison DDGS16985 Speechwriter to the Principal Deputy Assistant Secretary of Defense for Public Affairs DDGS16987 Public Affairs Specialist to the Principal Deputy Assistant Secretary of Defense for Public Affairs DDGS16988 Executive Assistant to the Director, Operational Test and Evaluation DDGS16991 Confidential Assistant to the Under Secretary of Defense (Comptroller) DDGS16993 Deputy, White House Liaison Office to the Special Assistant to the Secretary of Defense for White House Liaison DDGS16995 Special Assistant to the Under Secretary of Defense (Acquisition, Technology, and Logistics) DDGS16996 Special Assistant to the Principal Deputy Assistant Secretary of Defense (Legal Affairs) DDGS16998 Staff Assistant to the Special Assistant to the Secretary of Defense for White House Liaison DDGS16999 Personal and Confidential Assistant to the Assistant Secretary of Defense (International Security Affairs) DDGS17000 Special Assistant to the Deputy Under Secretary of Defense (International Technology Security) DDGS17001 Speechwriter to the Assistant Secretary of Defense Public Affairs DDGS17002 Confidential Assistant to the Under Secretary of Defense Personnel and Readiness to the Under Secretary of Defense (Personnel and Readiness) DDGS17004 Speechwriter to the Principal Deputy Assistant Secretary of Defense for Public Affairs DDGS17008 Special Events Coordinator to the Assistant Secretary of Defense Public Affairs DDGS17010 Public Affairs Specialist to the Assistant Secretary of Defense Public Affairs DDGS17012 Public Affairs Specialist to the Assistant Secretary of Defense Public Affairs DDGS17013 Public Affairs Specialist to the Assistant Secretary of Defense Public Affairs DDGS17015 Staff Assistant to the Deputy Assistant Secretary of Defense (Detainee Affairs) DDGS17016 Defense Fellow to the Special Assistant to the Secretary of Defense for White House Liaison DDGS17017 Defense Fellow to the Special Assistant to the Secretary of Defense for White House Liaison DDGS17019 Defense Fellow to the Special Assistant to the Secretary of Defense for White House Liaison DDGS17021 Public Affairs Analyst to the Assistant Secretary of Defense Public Affairs DDGS17022 Public Affairs Specialist to the Assistant Secretary of Defense Public Affairs DDGS17023 Public Affairs Specialist to the Assistant Secretary of Defense Public Affairs DDGS17024 Public Affairs Specialist to the Assistant Secretary of Defense Public Affairs DDGS17025 Staff Specialist to the Under Secretary of Defense (Acquisition, Technology, and Logistics) DDGS17026 Special Assistant to the Assistant Secretary of Defense (Legislative Affairs) DDGS17027 Special Assistant to the Assistant Secretary of Defense (Legislative Affairs) DDGS17028 Staff Assistant to the Special Assistant to the Secretary of Defense for White House Liaison DDGS17029 Administrative Assistant to the Special Assistant to the Secretary of Defense for White House Liaison DDGS17030 Staff Assistant to the Deputy Assistant Secretary of Defense (North Atlantic Treaty Organization and Europe) DDGS17031 Special Assistant to the Deputy Under Secretary of Defense (Asian and Pacific Security Affairs) DDGS17032 Special Assistant to the Assistant Secretary of Defense (Legislative Affairs) DDGS17033 New Media Development Account Assistant to the Assistant Secretary of Defense Public Affairs DDGS17034 Administrative Assistant to the Director, Department of Defense Office of Legislative Counsel DDGS17035 Staff Assistant to the Deputy Assistant Secretary of Defense (Near East and South Asian Affairs) DDGS17036 Public Affairs Specialist to the Assistant Secretary of Defense Public Affairs DDGS17038 Special Assistant to the Assistant Secretary of Defense (Legislative Affairs) DDGS17039 Confidential Assistant to the Secretary of Defense DDGS17040 Defense Fellow to the Special Assistant to the Secretary of Defense for White House Liaison DDGS17041 Special Assistant to the Assistant Secretary of Defense (Legislative Affairs) DDGS17043 Special Assistant to the Under Secretary of Defense (Comptroller) DDGS17044 Special Assistant to the Under Secretary of Defense (Comptroller) DDGS17046 Public Affairs Analyst to the Assistant Secretary of Defense Public Affairs DDGS17047 Special Assistant to the Assistant Secretary of Defense (Legislative Affairs) DDGS17048 Staff Assistant to the Principal Deputy Under Secretary of Defense for Policy DDGS17049 Confidential Assistant to the Deputy Under Secretary of Defense (Acquisition and Technology) DDGS60033 Personal Secretary to the Deputy Secretary of Defense DDGS60312 Director, Cooperative Threat Reduction to the Assistant Secretary of Defense (International Secretary Policy) DDGS60314 Coordinator of Reserve Integration to the Principal Deputy Assistant Secretary of Defense (Reserve Affairs) DDGS60319 Confidential Assistant to the Deputy Secretary of Defense DDGS60368 Personal and Confidential Assistant to the Assistant Secretary of Defense (Legislative Affairs) DDGS60369 Executive Assistant to the Director of Force Transformation DDGS60454 Special Assistant to the Director of Net Assessment DDGS60475 Staff Assistant to the Deputy Assistant Secretary of Defense (Forces Policy) DDGS60520 Special Assistant to the Deputy Assistant Secretary 0f Defense (Prisoners of War/Military Police) Director, Prisoners of War Missing Persons Office Section 213.3307 Department of the Army DWGS00065 Special Assistant to the Deputy Assistant Secretary of the Army for Privatization and Partnerships (I and E) DWGS00077 Confidential Assistant to the Assistant Secretary of the Army (Civil Works) DWGS60002 Special Assistant to the Secretary of the Army DWGS60016 Confidential Assistant to the Secretary of the Army DWGS60019 Business Transformation Initiatives Analyst to the Special Assistant to the Secretary of Army for Business Transformation Initiatives DWGS60021 Special Assistant to the Assistant Secretary of Army (Installations and Environment) DWGS60022 Personal and Confidential Assistant to the Executive Director, Strategy and Performance Planning DWGS60024 Personal and Confidential Assistant to the Under Secretary of the Army DWGS60028 Personal and Confidential Assistant to the Assistant Secretary of the Army (Installations and Environment) DWGS60029 Special Assistant to the Army General Counsel DWGS60030 Confidential Assistant to the Deputy Under Secretary of the Army DWGS60031 Personal and Confidential Assistant to the General Counsel DWGS60032 Special Assistant to the Deputy Assistant Secretary of the Army (Environment, Safety and Occupational Health) to the General Counsel DWGS60033 Special Assistant to the Army General Counsel DWGS60076 Special Assistant to the Assistant Secretary of the Army (Civil Works) Section 213.3308 Department of the Navy DNGS06113 Staff Assistant to the Secretary of the Navy DNGS06413 Confidential Assistant to the Assistant Secretary of Navy (Installations and Environment) DNGS06414 Staff Assistant to the Under Secretary of the Navy DNGS07110 Confidential Assistant to the Deputy Assistant Secretary of the Navy (Littoral and Mine Warfare Systems) DNGS07152 Confidential Assistant to the Assistant Secretary of the Navy (Research Development and Acquisition) DNGS07166 Residence Manager and Social Secretary to the Vice President to the Secretary of the Navy DNGS07194 Attorney Advisor (General) to the General Counsel DNGS07259 Special Assistant to the Secretary of the Navy DNGS60074 Confidential Staff Assistant to the Deputy Assistant Secretary of the Navy (Financial Management and Comptroller) Section 213.3309 Department of the Air Force DFGS00003 Secretary to the Principal Deputy Assistant Secretary (Financial Management) DFGS01060 Special Assistant to the Principal Deputy Assistant Secretary (Financial Management) DFGS07001 Special Assistant to the Assistant Secretary of the Air Force (Acquisition) for Industrial Relations DFGS08001 Special Assistant to the Deputy Assistant Secretary (Force Management Integration) DFGS60011 Personal and Confidential Assistant to the General Counsel DFGS60013 Special Counsel and Special Assistant to the General Counsel DFGS60019 Special Assistant to the Assistant Secretary (Installations, Environment and Logistics) DFGS60046 Budget Analyst to the Assistant Secretary (Financial Management and Comptroller) Section 213.3310 Department of Justice DJGS00027 Counselor to the Assistant Attorney General Environment and Natural Resources DJGS00028 Director of Congressional Affairs to the Administrator, Drug Enforcement Administration DJGS00033 Counsel to the Assistant Attorney General DJGS00039 Special Assistant to the Chairman DJGS00043 Confidential Assistant to the Assistant Attorney General (Legislative Affairs) DJGS00048 Congressional Liaison Specialist to the Administrator, Drug Enforcement Administration DJGS00054 Counsel to the Assistant Attorney General (Legal Policy) DJGS00062 Chief of Staff to the Administrator of Juvenile Justice and Delinquency Prevention DJGS00064 Principal Deputy Director to the Associate Attorney General DJGS00066 Special Assistant to the Assistant Attorney General for Administration DJGS00067 Chief of Staff to the Assistant Attorney General, Office of Justice Programs DJGS00076 Public Affairs Specialist to the United States Attorney, Texas, Western District DJGS00085 Speech Writer to the Director, Office of Public Affairs DJGS00105 Counsel to the Special Counsel DJGS00108 Special Assistant to the Director DJGS00110 Senior Counsel to the Director, Office of Public Affairs DJGS00114 Special Assistant to the Attorney General DJGS00117 Deputy Director, Office of Faith-Based and Community Initiatives to the Director, Office of Faith-Based and Community Initiatives DJGS00118 Special Assistant to the Director DJGS00121 Senior Counsel to the Assistant Attorney General DJGS00124 Senior Counsel to the Director, Office of Public Affairs DJGS00125 Special Assistant to the Assistant Attorney General DJGS00127 Chief of Staff and Counsel to the Assistant Attorney General DJGS00130 Counsel to the Assistant Attorney General DJGS00145 Executive Assistant to the Solicitor General DJGS00155 Speechwriter to the Director, Office of Public Affairs DJGS00162 Counsel to the Assistant Attorney General DJGS00177 Counsel to the Associate Attorney General DJGS00183 Counsel to the Counselor and Chief of Staff DJGS00185 Senior Counsel to the Deputy Attorney General DJGS00187 Counsel to the Assistant Attorney General Civil Division DJGS00201 Counselor to the Assistant Attorney General Criminal Division DJGS00202 Counsel to the Assistant Attorney General Criminal Division DJGS00203 Counsel to the Assistant Attorney General Criminal Division DJGS00221 Chief of Staff to the Assistant Attorney General, Office of Justice Programs DJGS00226 Senior Advisor to the Director of Justice Assistance to the Director, Bureau of Justice Assistance DJGS00228 Counsel to the Chief of Staff DJGS00231 Counsel to the Associate Attorney General DJGS00237 Press Assistant to the Director, Office of Public Affairs DJGS00238 Press Assistant to the Director, Office of Public Affairs DJGS00244 Confidential Assistant to the Assistant Attorney General DJGS00246 Counsel to the Assistant Attorney General Environment and Natural Resources DJGS00252 Director of Advance to the Attorney General DJGS00262 Special Counsel on Voting Matters to the Assistant Attorney General DJGS00279 Deputy Director to the Director DJGS00292 Deputy Privacy and Civil Liberties Officer to the Counselor and Chief of Staff DJGS00295 Special Assistant to the United States Attorney, Massachusetts DJGS00302 Associate Director to the Deputy Director DJGS00307 Associate Director to the Director, Office of Intergovernmental and Public Liaison to the Director DJGS00313 Special Assistant to the Assistant Attorney General (Legal Policy) DJGS00314 Counsel to the Assistant Attorney General DJGS00325 Staff Assistant to the Assistant Attorney General (Legislative Affairs) DJGS00328 Associate Director to the Director DJGS00332 Counsel to the Assistant Attorney General DJGS00336 Special Assistant to the Assistant Attorney General to the Chief of Staff DJGS00338 Special Assistant to the Assistant Attorney General DJGS00346 Deputy Director to the Director, Office of Public Affairs DJGS00364 Senior Press Assistant to the Director, Office of Public Affairs DJGS00369 Deputy White House Liaison to the White House Liaison DJGS00370 Confidential Assistant to the Attorney General DJGS00374 Staff Assistant to the Director, Office of Public Affairs DJGS00378 Special Assistant to the Director, Office of Public Affairs DJGS00386 Deputy Director of Scheduling to the Director of Scheduling and Advance DJGS00392 Policy Coordinator and Special Assistant to the Director DJGS00398 Media Affairs Specialist to the Director, Office of Public Affairs DJGS00406 Public Affairs Specialist to the Director, Office of Public Affairs DJGS00413 Executive Assistant to the United States Attorney DJGS00440 Confidential Assistant to the Assistant Attorney General Tax Division DJGS60023 Special Assistant for International Protocol to the Director, Office of International Affairs DJGS60173 Secretary (Office Automation) to the United States Attorney, Oklahoma, Northern District DJGS60267 Counsel to the Assistant Attorney General DJGS60277 Director of Scheduling and Advance to the Attorney General DJGS60418 Secretary (Office Automation) to the United States Attorney, Nebraska DJGS60420 Secretary (Office Automation) to the United States Attorney, Pennsylvania, Eastern District DJGS60423 Secretary (Office Automation) to the United States Attorney, New Mexico DJGS60427 Secretary (Office Automation) to the United States Attorney, New Hampshire DJGS60430 Secretary (Office Automation) to the United States Attorney, Kansas DJGS60436 Secretary (Office Automation) to the United States Attorney, Alabama, Southern District DJGS60437 Secretary (Office Automation) to the United States Attorney, Delaware Section 213.3311 Department of Homeland Security DMGS00051 Business Analyst to the Special Assistant DMGS00122 Director of Legislative Affairs for Science and Technology to the Assistant Secretary for Legislative Affairs DMGS00151 Business Liaison to the Special Assistant DMGS00239 Director of Intergovernmental Affairs for Emergency Preparedness and Response to the Disaster Fund Financial Manager DMGS00253 Assistant Director of Legislative Affairs for Secretarial Offices to the Director of Legislative Affairs for Secretarial Offices DMGS00259 Counter Narcotics Liaison to the Counter Narcotics Officer DMGS00329 Senior Policy Advisor to the Deputy Assistant Secretary for Mission Integration DMGS00349 Senior Advisor to the Assistant Secretary for Infrastructure Protection to the Deputy Assistant Secretary for Mission Integration DMGS00395 Senior Advisor to the Chief Medical Officer DMGS00411 Special Assistant to the Deputy Assistant Secretary for Infrastructure Protection DMGS00413 Senior Legislative Policy Advisor to the Deputy Assistant Secretary for Border and Transportation Security Policy DMGS00415 Public Affairs Specialist to the Assistant Commissioner for Public Affairs DMGS00428 Advisor to the Chief of Staff DMGS00437 Advisor to the Director to the Chief of Staff for Citizenship and Immigration Services DMGS00446 Senior Advisor for Civil Rights and Civil Liberties to the Officer of Civil Rights and Civil Liberties DMGS00449 Director of Legislative Affairs, Federal Emergency Management Agency to the Under Secretary for Federal Emergency Management DMGS00454 Special Advisor for Refugee and Asylum Affairs to the Assistant Secretary for Policy DMGS00458 Associate Executive Secretary for Internal Coordination to the Executive Secretary DMGS00459 Assistant Director of Legislative Affairs for Information Analysis and Operations to the Assistant Secretary for Legislative Affairs DMGS00468 Public Liaison Officer to the Director of Strategic Communications DMGS00479 Chief Technology and Process Manager to the Executive Secretary DMGS00490 Director of Faith-Based and Community Initiatives to the Under Secretary for National Protection and Programs DMGS00497 Deputy Executive Director, Homeland Security Advisory Committees to the Executive Director DMGS00500 White House Liaison and Advisor to the Chief of Staff DMGS00503 Director of Strategic Communications to the Assistant Secretary for Public Affairs DMGS00515 Assistant Director of Legislative Affairs for Miscellaneous Offices to the Assistant Secretary for Legislative Affairs DMGS00516 Confidential Assistant to the Executive Secretary DMGS00532 Advisor to the Director for Policy to the Director, Domestic Nuclear Detection Office DMGS00537 Deputy Assistant Secretary for Policy Development to the Assistant Secretary for Policy DMGS00538 Scheduler and Protocol Coordinator to the Director of Scheduling and Advance DMGS00541 Director/Executive Secretariat, Private Sector Advisory Committee to the Executive Director, Homeland Security Advisory Committees DMGS00542 Advisor for Intelligence to the Assistant Secretary, Immigration and Customs Enforcement DMGS00543 Advance Representative to the Director of Scheduling and Advance DMGS00544 Advance Representative to the Director of Scheduling and Advance DMGS00545 Special Assistant to the Executive Director, Homeland Security Advisory Committees DMGS00546 Coordinator of State and Local Affairs to the Chief of Staff DMGS00549 Special Assistant to the Assistant Secretary for Infrastructure Protection DMGS00550 Confidential Assistant to the Deputy Secretary of the Department of Homeland Security DMGS00551 Confidential Assistant to the Chief of Staff DMGS00552 Confidential Assistant to the General Counsel DMGS00553 Director of Policy and Plans, Customs and Border Protection to the Commissioner, Customs and Border Protection DMGS00554 Special Assistant to the Chief of Staff DMGS00556 Deputy Chief of Staff to the Director of Information Integration and Special Assistant to the Secretary DMGS00560 Associate Director of Communications for Intelligence and Analysis to the Deputy Assistant Secretary for Public Affairs DMGS00564 Staff Assistant to the White House Liaison to the White House Liaison and Advisor DMGS00568 Senior Media Affairs and Communication Specialist to the Chief of Staff DMGS00570 Confidential Assistant to the Director, National Capital Region Coordination DMGS00572 Confidential Assistant to the Director, Office of Screening Coordination DMGS00573 Deputy Director of Secretarial Briefing Book to the Executive Secretary DMGS00577 Deputy Director of the Center for Faith Based and Community Initiatives to the Director of Faith-Based and Community Initiatives DMGS00578 Business Liaison Director to the Assistant Secretary for Private Sector DMGS00579 Associate Director for Latin American Affairs to the Assistant Secretary for International Affairs DMGS00580 Associate Director of Strategic Communications for Policy to the Director of Strategic Communications DMGS00581 Associate Director of Legislative Affairs to the Assistant Secretary for Legislative Affairs DMGS00582 Associate Director of Legislative Affairs to the Assistant Secretary for Legislative Affairs DMGS00583 Policy Advisor to the Chief of Staff DMGS00586 Counselor to the Administrator and Deputy Administrator to the Administrator for Federal Emergency Management Agency DMGS00587 Deputy Director of Scheduling and Advance to the Director of Scheduling and Advance DMGS00589 Senior Advisor to the Under Secretary for Science and Technology DMGS00591 Correspondence Analyst to the Executive Secretary DMGS00593 Director of Scheduling and Advance to the Chief of Staff DMGS00595 Director of Homeland Security Council/National Security Council/White House Actions and Interagency Coordinator to the Executive Secretary DMGS00597 Director of Communications, United States Citizenship and Immigration Services to the Director, Bureau of Citizenship and Immigration Services DMGS00598 Legislative Assistant to the Assistant Secretary for Legislative Affairs DMGS00599 Legislative Assistant to the Assistant Secretary for Legislative Affairs DMGS00600 Confidential Assistant to the Under Secretary for Protocol and Advance Briefings to the Under Secretary for Science and Technology DMGS00603 International Policy Analyst to the Under Secretary for Science and Technology DMGS00604 Special Assistant to the Secretary for Stakeholder Affairs and Information Integration to the Chief of Staff DMGS00605 Special Assistant for Strategic Communications and Public Relations to the Under Secretary for Science and Technology DMGS00607 Business Liaison to the Assistant Secretary for Private Sector DMGS00608 International Policy Analyst to the Under Secretary for Science and Technology DMGS00609 Associate Director of White House Actions and Policy Coordinating Committee Coordinator to the Executive Secretary DMGS00610 Public Affairs and Press Assistant to the Assistant Secretary for Public Affairs DMGS00611 Special Assistant to the White House Liaison to the White House Liaison and Advisor DMGS00613 Junior Writer and Researcher to the Director of Strategic Communications DMGS00614 Confidential Assistant to the Chief Medical Officer DMGS00615 Chief of Staff to the Assistant Secretary for Policy DMGS00616 Senior Legislative Assistant to the Assistant Secretaries and Deputy Assistant Secretaries to the Assistant Secretary for Legislative Affairs DMGS00617 Director of Legislative Affairs for Policy to the Assistant Secretary for Legislative Affairs DMGS00619 Director of Legislative Affairs for Border Security and Immigration to the Assistant Secretary for Legislative Affairs DMGS00620 Principal Associate Director of White House Actions and Policy Coordinating Committee Coordinator to the Executive Secretary DMGS00621 Special Assistant to the Chief Intelligence Officer to the Assistant Secretary for Intelligence and Analysis DMGS00622 Associate Director of Communications and Speechwriter to the Director of Communications DMGS00623 Associate Director of Strategic Communications for Outreach to the Director of Strategic Communications DMGS00624 Component Liaison and Correspondence Analyst to the Executive Secretary DMGS00626 Deputy Secretary Briefing Book Coordinator to the Executive Secretary DMGS00627 Counselor to the Director to the Director, Office of Counter Narcotics Enforcement DMGS00628 Director, Homeland Security Information Network to the Deputy Chief of Staff DMGS00629 Confidential Assistant to the General Counsel to the Chief of Staff, Office of General Counsel DMGS00631 Advisor to the Administrator and Deputy Administrator to the Administrator for Federal Emergency Management Agency DMGS00632 Component Liaison and Correspondence Analyst to the Executive Secretary DMGS00633 Counselor to the Secretary to the Chief of Staff DMGS00636 Coordinator for Senior Executive Actions to the Executive Secretary DMGS00637 Special Assistant to the Chief of Staff, Office of General Counsel DMGS00638 Special Assistant and Travel Aide to the Administrator for Federal Emergency Management Agency DMGS00639 Advisor to the Under Secretary for Management to the Chief Human Capital Officer DMGS00640 Director of External Affairs and Communications to the Administrator for Federal Emergency Management Agency DMGS00641 Special Assistant to the Chief Medical Officer DMGS00642 Special Assistant to the Assistant Commissioner, Congressional Affairs DMGS00643 Supervisory Management and Program Analyst to the Executive Secretary DMGS00645 Special Assistant to the Chief Privacy Officer DMGS00646 Assistant Press Secretary to the Press Secretary DMGS00647 Special Assistant to the Administrator and Deputy Administrator for Federal Emergency Management Agency DMGS00648 Press Secretary to the Director of External Affairs and Communications DMGS00649 Deputy White House Liaison to the White House Liaison and Advisor DMGS00650 Special Assistant to the Assistant Secretary, Immigration and Customs Enforcement DMGS00651 Press Assistant to the Press Secretary DMGS00652 Director, Ready Campaign to the Assistant Secretary for Public Affairs DMGS00653 Assistant Director to the Assistant Secretary for Legislative Affairs DMGS00654 Associate Director, Ready Campaign to the Assistant Secretary for Public Affairs DMGS00655 Coordinator for Local Affairs to the Director, Office of State and Local Government Coordination DMGS00656 Director of Speechwriting to the Assistant Secretary for Public Affairs DMGS00657 Special Assistant to the Chief of Staff DMGS00658 Deputy Press Secretary to the Press Secretary DMGS00663 Director, Transition and Transformation to the Director of Policy and Program Analysis DMGS00664 Advance Representative to the Director of Scheduling and Advance DMGS00668 Program Director to the Assistant Secretary for Intergovernmental Programs DMGS00670 Advisor to the Deputy Administrator, Federal Emergency Management Agency DMGS00673 Special Assistant for Faith Based and Community Initiatives to the Director of Faith-Based and Community Initiatives DMGS00674 Special Assistant, Office of International Affairs to the Chief of Staff DMGS00678 Advisor to the Director for Congressional and Intergovernmental Affairs to the Director, Bureau of Citizenship and Immigration Services DMOT00679 Special Assistant to the Assistant Secretary, Transportation Security Administration Section 213.3312 Department of the Interior DIGS01046 Special Assistant—Advance to the Director—Scheduling and Advance DIGS01053 Chief of Staff to the Assistant Secretary Policy Management and Budget DIGS01059 Special Assistant—Historic Preservation to the Chief of Staff DIGS01064 Hispanic Media Outreach Coordinator to the Director, Office of Communications DIGS01068 Special Assistant to the Secretary for Alaska to the Senior Adviser to the Secretary for Alaskan Affairs DIGS01069 Special Assistant to the Chief of Staff DIGS01072 Special Assistant—Scheduling and Advance to the Director—Scheduling and Advance DIGS01075 Associate Director—External and Intergovernmental Affairs to the Director, External and Intergovernmental Affairs DIGS01076 Special Assistant to the Deputy Chief of Staff DIGS01077 Special Assistant to the Solicitor to the Deputy Solicitor DIGS01078 Counselor to the Assistant Secretary—Water and Science DIGS01081 Associate Director to the Director, Congressional and Legislative Affairs DIGS01084 Special Assistant to the Director—Scheduling and Advance DIGS01086 Special Assistant (Scheduling and Advance) to the Director—Scheduling and Advance DIGS01087 Special Assistant to the Senior Adviser to the Secretary for Alaskan Affairs DIGS01088 Confidential Assistant to the Solicitor DIGS01089 Special Assistant to the Deputy Chief of Staff DIGS01090 Special Assistant (Scheduling and Advance) to the Director—Scheduling and Advance DIGS01091 Special Assistant—Scheduling and Advance to the Director—Scheduling and Advance DIGS01092 Special Assistant to the Assistant Secretary for Fish and Wildlife and Parks DIGS01093 White House Liaison to the Chief of Staff DIGS01095 Special Assistant to the White House Liaison DIGS01096 Press Secretary to the Director, Office of Communications DIGS01097 Director, Take Pride in America to the Director, External and Intergovernmental Affairs DIGS01098 Deputy Press Secretary to the Director, Office of Communications DIGS01100 Special Assistant to the Deputy Assistant Secretary—Land and Minerals Management DIGS01102 Special Assistant to the Assistant Secretary for Water and Science DIGS01103 Special Assistant to the Director, External and Intergovernmental Affairs DIGS05001 Special Assistant to the Director Bureau of Land Management DIGS60025 Special Assistant to the Secretary DIGS60525 Special Assistant to the Assistant Secretary—Land and Minerals Management DIGS61025 Director—Scheduling and Advance to the Chief of Staff DIGS61027 Special Assistant to the Associate Deputy Secretary DIGS61035 Special Assistant to the Director to the Director Office of Surface Mining Reclamation and Enforcement DIGS61038 Special Assistant to the Director Minerals Management Service DIGS70011 Special Assistant (Communication) to the Director, External and Intergovernmental Affairs DIGS79003 Special Assistant (Communication) to the Director, External and Intergovernmental Affairs Section 213.3313 Department of Agriculture DAGS00158 Director of Constituent Affairs to the Deputy Chief of Staff DAGS00164 Director of Web Design to the Deputy Chief of Staff DAGS00179 Director of External Affairs to the Administrator for Risk Management DAGS00200 Special Assistant to the Secretary DAGS00609 Special Assistant to the Associate Assistant Secretary for Civil Rights DAGS00611 Director to the Administrator, Food and Nutrition Service DAGS00717 Special Assistant to the Administrator, Food and Nutrition Service DAGS00718 Special Assistant to the Administrator, Farm Service Agency DAGS00721 Confidential Assistant to the Administrator for Risk Management DAGS00728 Confidential Assistant to the Under Secretary for Rural Development DAGS00731 Special Assistant to the Chief, Natural Resources Conservation Service DAGS00739 Staff Assistant to the Administrator for Risk Management DAGS00741 Special Assistant to the Administrator DAGS00768 Special Assistant to the Administrator DAGS00773 Special Assistant to the Secretary DAGS00778 Director of Faith-Based and Community Initiatives to the Secretary DAGS00785 Special Assistant to the Administrator to the Under Secretary for Marketing and Regulatory Programs DAGS00787 Director of Advance to the Director of Communications DAGS00789 Staff Assistant to the Secretary DAGS00796 Congressional Liaison to the Deputy Assistant Secretary DAGS00798 Confidential Assistant to the Administrator, Rural Housing Service DAGS00801 Confidential Assistant to the Secretary DAGS00807 White House Liaison to the Secretary DAGS00809 Special Assistant to the Deputy Administrator-Program Operations DAGS00814 Special Assistant to the Special Assistant to the Chief of Staff, Office of the Secretary DAGS00822 Special Assistant to the Associate Administrator, Programs DAGS00826 Special Assistant to the Administrator, Agricultural Marketing Service DAGS00828 Special Assistant to the Under Secretary for Rural Development DAGS00829 Special Assistant to the Chief Information Officer DAGS00830 Special Assistant to the Administrator DAGS00836 Speech Writer to the Director of Communications DAGS00837 Confidential Assistant to the Under Secretary for Rural Development DAGS00839 Chief of Staff to the Administrator, Rural Housing Service DAGS00842 Special Assistant to the Deputy Assistant Secretary for Administration DAGS00843 Confidential Assistant to the Chief Financial Officer DAGS00846 Deputy Director of Communications to the Director of Communications DAGS00847 Confidential Assistant to the Associate Administrator DAGS00850 Special Assistant to the Under Secretary for Rural Development DAGS00851 Special Assistant to the Under Secretary for Research, Education and Economics DAGS00852 Special Assistant to the Under Secretary for Rural Development DAGS00853 Director, Native American Programs to the Assistant Secretary for Congressional Relations DAGS00854 Staff Assistant to the Assistant Secretary for Congressional Relations DAGS00855 Special Assistant to the Deputy Administrator for Field Operations DAGS00858 Staff Assistant to the Administrator, Farm Service Agency DAGS00861 Deputy Director, Office of Faith-Based and Community Initiatives to the Director of Faith-Based and Community Initiatives DAGS00862 Confidential Assistant to the Assistant Secretary for Congressional Relations DAGS00863 Director of External Affairs to the Administrator, Farm Service Agency DAGS00864 Confidential Assistant to the Administrator, Rural Housing Service DAGS00867 Associate Administrator to the Administrator DAGS00868 Confidential Assistant to the Administrator, Rural Housing Service DAGS00869 Press Secretary to the Director of Communications DAGS00871 Staff Assistant to the Administrator, Farm Service Agency DAGS00872 Confidential Assistant to the Director of Communications DAGS00873 Staff Assistant to the Assistant Secretary for Administration DAGS00874 Director of Speechwriting to the Director of Communications DAGS00875 Confidential Assistant to the Assistant Secretary for Congressional Relations DAGS00877 Confidential Assistant to the Deputy Assistant Secretary DAGS00878 Staff Assistant to the Deputy Under Secretary, Research, Education and Economics DAGS00879 Confidential Assistant to the Deputy Under Secretary for Marketing and Regulatory Programs DAGS00880 Confidential Assistant to the Administrator, Farm Service Agency DAGS00881 Legislative Analyst to the Under Secretary for Food Nutrition and Consumer Services DAGS00882 Chief of Staff to the Chief, Natural Resources Conservation Service DAGS00883 Special Assistant to the Chief, Natural Resources Conservation Service DAGS00884 Confidential Assistant to the Under Secretary for Marketing and Regulatory Programs DAGS00885 Confidential Assistant to the Administrator, Food and Nutrition Service DAGS00886 Special Assistant to the Administrator DAGS00887 Special Assistant to the Under Secretary for Farm and Foreign Agricultural Services DAGS00889 Senior Counsel to the General Counsel DAGS00891 Special Assistant to the Assistant Secretary for Congressional Relations DAGS00892 Confidential Assistant to the Chief, Natural Resources Conservation Service DAGS00895 Special Assistant to the Under Secretary for Rural Development DAGS00896 Special Assistant to the Under Secretary for Rural Development DAGS00897 Deputy Director of Intergovernmental Affairs to the Assistant Secretary for Congressional Relations DAGS00899 Staff Assistant to the Under Secretary for Natural Resources and Environment DAGS00902 Deputy White House Liaison to the Secretary DAGS00904 Director of Legislative Affairs to the Administrator, Foreign Agricultural Service DAGS00905 Special Assistant to the Administrator to the Under Secretary for Marketing and Regulatory Programs DAGS00906 Press Assistant to the Director of Communications DAGS00907 Staff Assistant to the Administrator DAGS60114 Confidential Assistant to the Deputy Secretary DAGS60116 Confidential Assistant to the Under Secretary for Rural Development DAGS60129 Special Assistant to the Administrator for Risk Management DAGS60135 Confidential Assistant to the Administrator, Foreign Agricultural Service DAGS60138 Special Assistant to the Administrator DAGS60263 Special Assistant to the Chief, Natural Resources Conservation Service DAGS60384 Confidential Assistant to the Secretary DAGS60436 Confidential Assistant to the Administrator Section 213.3314 Department of Commerce DCGS00048 Confidential Assistant to the Deputy Under Secretary and Deputy Director of U.S. Patent and Trademark Office DCGS00074 Director of Public Affairs to the Deputy Assistant Secretary for External Affairs and Communication DCGS00162 Senior Advisor to the Assistant to the Secretary and Director, Office of Policy and Strategic Planning DCGS00184 Confidential Assistant to the Assistant Secretary for Telecommunications and Information DCGS00191 Special Assistant to the General Counsel DCGS00199 Legislative Affairs Specialist to the Assistant Secretary for Legislative and Intergovernmental Affairs DCGS00202 Legislative Affairs Specialist to the Assistant Secretary for Legislative and Intergovernmental Affairs DCGS00237 Special Assistant to the Deputy Assistant Secretary for Industry Analysis DCGS00264 Special Assistant to the Assistant Secretary for Economic Development DCGS00288 Confidential Assistant to the Director, Office of Business Liaison DCGS00298 Senior Advisor to the Assistant Secretary for Telecommunications and Information DCGS00311 Confidential Assistant to the Director Office of White House Liaison DCGS00328 Special Assistant to the Director, Advocacy Center DCGS00330 Special Assistant to the Director Advocacy Center DCGS00339 Confidential Assistant to the Assistant Secretary for Legislative and Intergovernmental Affairs DCGS00342 Deputy Director to the Director, Office of Liaison to the Director Office of White House Liaison DCGS00344 Public Affairs Specialist to the Director of Public Affairs DCGS00351 Confidential Assistant to the Deputy General Counsel DCGS00361 Chief of Congressional Affairs to the Associate Director for Communications DCGS00367 Confidential Assistant to the Director, Office of Legislative Affairs DCGS00368 Congressional Affairs Specialist to the Director, Office of Legislative Affairs DCGS00380 Confidential Assistant to the Chief of Staff to the Under Secretary, International Trade Administration DCGS00382 Confidential Assistant to the Coordinator for International Intellectual Property Enforcement DCGS00385 Special Assistant to the Associate Under Secretary for Economic Affairs DCGS00386 Confidential Assistant to the Director, Office of Legislative Affairs DCGS00389 Senior Advisor to the Assistant Secretary for Import Administration DCGS00395 Confidential Assistant to the Director of Global Trade Programs DCGS00409 Special Assistant to the Secretary DCGS00412 Special Assistant to the Assistant Secretary for Import Administration DCGS00425 Director of Public Affairs to the Under Secretary for International Trade DCGS00427 Senior Advisor to the Assistant Secretary for Export Enforcement DCGS00431 Special Assistant to the Assistant Secretary for Export Administration DCGS00432 Confidential Assistant to the Director of Advance DCGS00433 Senior Policy Advisor to the Chief of Staff for National Oceanic and Atmospheric Administration DCGS00442 Director of Public Affairs to the Assistant Secretary for Telecommunications and Information DCGS00447 Confidential Assistant to the Director of Scheduling DCGS00457 Confidential Assistant to the Director of Scheduling DCGS00460 Director of Intergovernmental Affairs to the Assistant Secretary for Legislative and Intergovernmental Affairs DCGS00467 Confidential Assistant to the Deputy Assistant Secretary for Economic Development DCGS00485 Special Assistant to the Director, Office of External Affairs DCGS00502 Deputy Director of Advance to the Director of Advance DCGS00506 Public Affairs Specialist to the Director of Public Affairs DCGS00517 Director, Congressional and Public Affairs to the Under Secretary of Commerce for Industry and Security DCGS00520 Special Assistant to the Executive Director for Trade Promotion and Outreach DCGS00521 Confidential Assistant to the Deputy Assistant Secretary for Domestic Operations DCGS00526 Confidential Assistant to the Director, Advocacy Center DCGS00531 Confidential Assistant to the Deputy Assistant Secretary for Services DCGS00534 Confidential Assistant to the Deputy Assistant Secretary for Transportation and Machinery DCGS00540 Confidential Assistant to the Chief of Staff DCGS00541 Confidential Assistant to the Director, Advocacy Center DCGS00546 Special Assistant to the Deputy Secretary DCGS00547 Confidential Assistant to the Deputy Under Secretary and Deputy Director of U.S. Patent and Trademark Office DCGS00560 Senior Policy Advisor to the Assistant to the Secretary and Director, Office of Policy and Strategic Planning DCGS00570 Senior Policy Advisor to the Assistant to the Secretary and Director, Office of Policy and Strategic Planning DCGS00579 Director for Legislative and Intergovernmental Affairs to the Assistant Secretary for Legislative and Intergovernmental Affairs DCGS00582 Confidential Assistant to the Assistant Secretary for Export Enforcement DCGS00587 Confidential Assistant to the Assistant Secretary for Legislative and Intergovernmental Affairs DCGS00590 Confidential Assistant to the Director, Executive Secretariat DCGS00592 Legislative Affairs Specialist to the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office DCGS00593 Senior Advisor to the Coordinator for International Intellectual Property Enforcement DCGS00608 Confidential Assistant to the Under Secretary for International Trade DCGS00612 Director of Advisory Committees to the Assistant Secretary for Manufacturing and Services DCGS00614 Special Assistant to the Executive Director for Trade Promotion and Outreach DCGS00620 Director, Office of Legislative Affairs to the Under Secretary for International Trade DCGS00623 Public Affairs Specialist to the Assistant Secretary for Manufacturing and Services DCGS00628 Confidential Assistant to the Director of Speechwriting DCGS00631 Policy Advisor to the Under Secretary Oceans and Atmosphere (Administrator, National Oceanic and Atmospheric Administration) DCGS00639 Press Secretary to the Director of Public Affairs DCGS00642 Protocol Officer to the Chief of Staff DCGS00652 Confidential Assistant to the Director of Public Affairs DCGS00655 Senior Advisor to the Deputy Assistant Secretary for Domestic Operations DCGS00657 Confidential Assistant to the Director, Executive Secretariat DCGS00658 Confidential Assistant to the Director, Office of Legislative Affairs DCGS00669 Confidential Assistant to the Assistant Secretary for Market Access and Compliance DCGS00672 Senior Advisor to the Deputy Secretary DCGS00686 Director of Advance to the Chief of Staff DCGS00687 Policy Advisor to the Assistant to the Secretary and Director, Office of Policy and Strategic Planning DCGS00696 Deputy Director of Public Affair to the Director of Public Affairs DCGS06017 Senior Legislative Counsel to the General Counsel DCGS60001 Deputy Director, Office of Business Liaison to the Director, Office of Business Liaison DCGS60004 Deputy Director, Executive Secretariat to the Director, Executive Secretariat DCGS60006 Confidential Assistant to the Director of Advance DCGS60072 Director of Congressional Affairs to the Deputy Assistant Secretary for External Affairs and Communication DCGS60136 Special Assistant to the Under Secretary of Commerce for Industry and Security DCGS60160 Confidential Assistant to the Director, Advocacy Center DCGS60163 Executive Assistant to the Deputy Secretary to the Deputy Secretary DCGS60205 Policy Advisor to the Chief of Staff for National Oceanic and Atmospheric Administration DCGS60262 Deputy Director of Advisor Committees to the Director of Advisory Committees DCGS60263 Special Assistant to the Executive Director for Trade Promotion and Outreach DCGS60272 Confidential Assistant to the Assistant Secretary for Market Access and Compliance DCGS60276 Executive Assistant to the Under Secretary for Economic Affairs DCGS60290 Special Assistant to the Deputy Assistant Secretary for Domestic Operations DCGS60302 Director of External Affairs to the Director of Communications DCGS60312 Senior Advisor to the Deputy Assistant Secretary for Domestic Operations DCGS60394 Deputy Director, Office of Public Affairs to the Director of Public Affairs DCGS60395 Confidential Assistant to the Assistant Secretary and Director General of United States/For Commercial Services DCGS60396 Legislative Affairs Specialist to the Director, Office of Legislative Affairs DCGS60462 Director of Operations to the Deputy Under Secretary and Deputy Director of U.S. Patent and Trademark Office DCGS60471 Confidential Assistant to the Chief of Staff to the Deputy Secretary DCGS60490 Director of Scheduling to the Chief of Staff DCGS60512 Senior Advisor to the Under Secretary of Commerce for Industry and Security DCGS60532 Senior Counsel to the General Counsel DCGS60536 Speechwriter to the Director for Speechwriting DCGS60573 Special Assistant to the Assistant Secretary and Director General of United States/For Commercial Services DCGS60574 Confidential Assistant to the Director, Office of Business Liaison DCGS60583 Special Assistant to the Assistant Secretary for Administrator and Chief Financial Officer DCGS60609 Confidential Assistant to the Chief of Staff DCGS60618 Special Assistant to the Deputy Under Secretary and Deputy Director of U.S. Patent and Trademark Office DCGS60651 Public Affairs Specialist to the Director of Public Affairs DCGS60664 Special Assistant to the Assistant Secretary and Director General of United States/For Commercial Services DCGS60670 Director Office of Business Liaison to the Chief of Staff for National Oceanic and Atmospheric Administration DCGS60677 Director, Office of Energy, Environment and Materials to the Deputy Assistant Secretary for Manufacturing DCGS60681 Speechwriter to the Under Secretary of Commerce for Intellectual Property and Director of the U.S. Patent and Trademark Office DCGS60684 Director of Speechwriting to the Director of Public Affairs DCGS60694 Senior Advisor to the Director, Bureau of the Census to the Director Section 213.3315 Department of Labor DLGS60003 Staff Assistant to the Director, 21st Century Office and Deputy Assistant Secretary for Intergovernmental Affairs DLGS60007 Special Assistant to the Director, 21st Century Office and Deputy Assistant Secretary for Intergovernmental Affairs DLGS60015 Legislative Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60017 Senior Legislative Officer to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60025 Senior Legislative Officer to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60045 Staff Assistant to the Special Assistant DLGS60055 Special Assistant to the Assistant Secretary for Public Affairs DLGS60066 Staff Assistant to the Deputy Assistant Secretary for Federal Contract Compliance DLGS60076 Special Assistant to the Assistant Secretary for Employment Standards DLGS60078 Staff Assistant to the Assistant Secretary for Policy DLGS60084 Special Assistant to the Associate Deputy Secretary DLGS60086 Senior Advisor to the Wage and Hour Administrator DLGS60092 Senior Attorney Adviser to the Solicitor of Labor DLGS60094 Special Assistant to the Assistant Secretary for Public Affairs DLGS60096 Chief of Staff to the Deputy Assistant Secretary for Labor-Management Programs DLGS60099 Special Assistant to the Deputy Assistant Secretary for Employment and Training DLGS60104 Regional Representative to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60105 Regional Representative to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60107 Regional Representative to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60109 Regional Representative to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60110 Regional Representative to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60111 Regional Representative to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60112 Regional Representative to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60116 Special Assistant to the Chief Financial Officer DLGS60119 Staff Assistant to the Chief of Staff DLGS60120 Senior Legislative Officer to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60121 Special Assistant to the Deputy Chief of Staff DLGS60123 Special Assistant to the Deputy Assistant Secretary DLGS60131 Special Assistant to the Assistant Secretary for Employment and Training DLGS60132 Special Assistant to the Chief of Staff DLGS60133 Chief of Staff to the Director of the Women's Bureau DLGS60135 Special Assistant to the Director, 21st Century Office and Deputy Assistant Secretary for Intergovernmental Affairs DLGS60138 Chief of Staff to the Assistant Secretary for Mine Safety and Health DLGS60141 Special Assistant to the Deputy Assistant Secretary for Labor-Management Programs DLGS60142 Special Assistant to the Chief of Staff DLGS60144 Staff Assistant to the Director, 21st Century Office and Deputy Assistant Secretary for Intergovernmental Affairs DLGS60145 Intergovernmental Officer to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60146 Attorney Advisor to the Solicitor of Labor DLGS60147 Attorney Adviser to the Solicitor of Labor DLGS60153 Special Assistant to the Deputy Under Secretary for International Affairs DLGS60160 Speechwriter to the Assistant Secretary for Public Affairs DLGS60168 Senior Intergovernmental Affairs Officer to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60169 Deputy Director, Executive Secretariat to the Executive Secretary DLGS60170 Special Assistant to the Secretary of Labor DLGS60172 Special Assistant to the Associate Deputy Secretary DLGS60174 Special Assistant to the Director of Operations DLGS60175 Senior Advisor to the Deputy Assistant Secretary for Policy DLGS60176 Special Assistant to the Associate Deputy Secretary DLGS60178 Staff Assistant to the Executive Secretary DLGS60179 Senior Advisor to the Assistant Secretary for Employment Standards DLGS60180 Senior Legislative Officer to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60181 Special Assistant to the Assistant Secretary for Public Affairs DLGS60182 Staff Assistant to the White House Liaison DLGS60183 Special Assistant to the Assistant Secretary for Occupational Safety and Health DLGS60187 Special Assistant to the Assistant Secretary for Employment and Training DLGS60189 Special Assistant to the Chief Financial Officer DLGS60190 Senior Legislative Officer to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60192 Chief of Staff to the Assistant Secretary for Employee Benefits Security DLGS60195 Special Assistant to the Assistant Secretary for Employment Standards DLGS60196 Special Assistant to the Assistant Secretary for Veterans Employment and Training DLGS60199 Special Assistant to the Assistant Secretary for Public Affairs DLGS60201 Special Assistant to the Secretary of Labor DLGS60203 Special Assistant to the Assistant Secretary for Veterans Employment and Training DLGS60205 Deputy Director, 21st Century Workforce to the Director, 21st Century Workforce DLGS60209 Chief of Staff to the Assistant Secretary for Veterans Employment and Training DLGS60211 Special Assistant to the Director of Scheduling DLGS60212 Special Assistant to the Director, Office of Faith Based and Community Initiatives DLGS60214 Staff Assistant to the Director, Office of Faith Based and Community Initiatives DLGS60215 Special Assistant to the Assistant Secretary for Occupational Safety and Health DLGS60218 Special Assistant to the Assistant Secretary for Public Affairs DLGS60220 Special Assistant to the Assistant Secretary for Public Affairs DLGS60222 Special Assistant to the Assistant Secretary for Disability Employment Policy DLGS60225 Special Assistant to the Assistant Secretary for Public Affairs DLGS60226 Special Assistant to the Assistant Secretary for Employee Benefits Security DLGS60228 Chief of Staff to the Assistant Secretary for Occupational Safety and Health DLGS60229 Chief of Staff to the Assistant Secretary for Disability Employment Policy DLGS60230 Staff Assistant to the Associate Deputy Secretary DLGS60231 Staff Assistant to the Director of Scheduling DLGS60232 Special Assistant to the Assistant Secretary for Administration and Management DLGS60233 Senior Advisor to the Assistant Secretary for Employment Standards DLGS60234 Chief of Staff to the Assistant Secretary for Policy DLGS60235 Legislative Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60236 Legislative Officer to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60237 Special Assistant to the Secretary of Labor DLGS60238 Legislative Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60239 Staff Assistant to the Director of Operations DLGS60240 Legislative Officer to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60244 Special Assistant to the Executive Assistant to the Secretary DLGS60245 Staff Assistant to the Executive Assistant to the Secretary DLGS60247 Legislative Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60248 Special Assistant to the Director of Public Liaison DLGS60250 Deputy Director of Scheduling to the Director of Scheduling DLGS60251 Director of Scheduling to the Chief of Staff DLGS60252 Special Assistant to the Director, 21st Century Office and Deputy Assistant Secretary for Intergovernmental Affairs DLGS60255 Special Assistant to the Executive Assistant to the Secretary DLGS60256 Special Assistant to the Deputy Assistant Secretary for Labor-Management Programs DLGS60257 Intergovernmental Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs DLGS60260 Staff Assistant to the Deputy Chief of Staff DLGS60261 Special Assistant to the Deputy Assistant Secretary for Mine Safety and Health DLGS60262 Special Assistant to the Assistant Secretary for Employment Standards DLGS60264 Chief of Staff to the Wage and Hour Administrator DLGS60267 Special Assistant to the Assistant Secretary for Public Affairs DLGS60269 Special Assistant to the Director of Scheduling DLGS60270 Special Assistant to the Assistant Secretary for Employment and Training DLGS60272 Special Assistant to the Director, 21st Century Office and Deputy Assistant Secretary for Intergovernmental Affairs DLGS60273 Special Assistant to the Chief Information Officer to the Assistant Secretary for Administration and Management DLGS60277 Special Assistant to the Assistant Secretary for Administration and Management DLGS60278 Staff Assistant to the Chief Financial Officer Section 213.3316 Department of Health and Human Services DHGS00268 Special Assistant to the Executive Secretary to the Department DHGS00269 Chief Acquisitions Officer to the Assistant Secretary for Administration and Management DHGS60005 Confidential Assistant to the Assistant Secretary for Aging (Commissioner for Aging) DHGS60006 Confidential Assistant to the Assistant Secretary for Public Affairs DHGS60007 Special Assistant to the Associate Commissioner for External Relations DHGS60008 Senior Advisor to the Assistant Secretary for Children and Families DHGS60009 Special Assistant to the Assistant Secretary for Preparedness and Response to the Assistant Secretary for Public Health Emergency Preparedness DHGS60010 Confidential Assistant (Faith-Based) to the Director, Center for Faith Based and Community Initiatives DHGS60014 Director (Office of Document and Regulations Management) to the Executive Secretary to the Department DHGS60015 Deputy Director, Center for Faith Based and Community Initiatives to the Director, Center for Faith Based and Community Initiatives DHGS60017 Director of Scheduling to the Chief of Staff DHGS60018 Deputy Director for Advance to the Director of Scheduling DHGS60021 Special Assistant to the Director, Office of Community Services DHGS60023 Special Assistant to the Director, Center for Disease Control and Prevention Administration DHGS60027 Deputy Director for Scheduling to the Director of Scheduling DHGS60028 Special Assistant to the Chief of Staff DHGS60029 Special Assistant to the Assistant Secretary for Public Affairs DHGS60030 Special Assistant to the General Counsel DHGS60032 Special Assistant to the Deputy Commissioner for Policy DHGS60033 Special Assistant to the Assistant Secretary for Administration and Management DHGS60035 Confidential Assistant to the Administrator to the Administrator Centers for Medicare and Medicaid Services DHGS60036 Confidential Assistant to the Director to the Director of Intergovernmental Affairs DHGS60037 Director, Trafficking Program to the Director Office of Refugee Resettlement DHGS60038 Special Assistant to the Senior Advisor to the Assistant Secretary for Health DHGS60040 Special Assistant to the Chief of Staff DHGS60041 Special Assistant to the Deputy Commissioner for Policy DHGS60043 Deputy Assistant Secretary for Planning and Evaluation Human Services Policy to the Assistant Secretary for Planning and Evaluation DHGS60044 Special Assistant to the Assistant Secretary for Legislation DHGS60045 Associate Director Temporary Assistance for Needy Families to the Director, Office of Family Assistance DHGS60046 Senior Speech Writer to the Assistant Secretary for Public Affairs DHGS60048 Special Assistant to the Deputy Assistant Secretary for Public Affairs (Media) DHGS60050 Confidential Assistant to the Associate Commissioner Head Start Bureau DHGS60053 Confidential Assistant to the Principal Deputy Assistant Secretary for Planning and Evaluation DHGS60056 Special Assistant to the Director Office of Refugee Resettlement DHGS60057 Special Assistant to the Director Office of Refugee Resettlement DHGS60058 Confidential Assistant to the Director, Congressional Liaison Office DHGS60060 Special Assistant to the Deputy for Policy and External Affairs DHGS60127 Confidential Assistant to the Administrator Centers for Medicare and Medicaid Services DHGS60133 Special Assistant to the Assistant Secretary for Budget, Technology and Finance to the Assistant Secretary for Budget Technology and Finance DHGS60168 Confidential Assistant to the Deputy Assistant Secretary for Legislation (Planning and Budget) DHGS60169 Special Assistant to the Assistant Secretary for Public Affairs DHGS60180 Special Assistant to the Principal Deputy Assistant Secretary for Planning and Evaluation DHGS60237 Regional Director, New York, Region II to the Director of Intergovernmental Affairs DHGS60238 Regional Director, Boston, Massachusetts, Region I to the Director of Intergovernmental Affairs DHGS60240 Regional Director, Dallas, Texas, Region VI to the Director of Intergovernmental Affairs DHGS60243 Regional Director, Atlanta, Georgia, Region IV to the Director of Intergovernmental Affairs DHGS60244 Regional Director, Seattle, Washington, Region X to the Director of Intergovernmental Affairs DHGS60247 Regional Director Philadelphia Region III to the Director of Intergovernmental Affairs DHGS60252 Regional Director, Denver, Colorado, Region VIII to the Director of Intergovernmental Affairs DHGS60255 Regional Director, Chicago, Illinois-Region V to the Director of Intergovernmental Affairs DHGS60256 Confidential Assistant to the Director of Intergovernmental Affairs DHGS60293 Special Assistant to the Commissioner Administration for Children Youth and Families DHGS60336 Confidential Assistant to the Deputy Assistant Secretary for Legislation (Human Services) DHGS60345 Director of Public Affairs to the Assistant Secretary for Children and Families DHGS60347 Congressional Liaison Specialist to the Deputy Assistant Secretary for Legislation (Congressional Liaison) DHGS60363 Director, Congressional Liaison Office to the Assistant Secretary for Legislation DHGS60374 Confidential Assistant to the Executive Secretary to the Department DHGS60399 Special Assistant to the Assistant Secretary for Children and Families DHGS60412 Regional Director, San Francisco, California, Region IX to the Director of Intergovernmental Affairs DHGS60417 Regional Director, Kansas City, Missouri, Region VII to the Director of Intergovernmental Affairs DHGS60418 Confidential Assistant to the Deputy Assistant Secretary for Public Affairs (Policy and Strategy) DHGS60427 Executive Director, President's Committee for People with Intellectual Disabilities to the Assistant Secretary for Children and Families DHGS60436 Associate Commissioner to the Assistant Secretary for Children and Families DHGS60485 Director of Communications to the Assistant Secretary, Health DHGS60513 Special Assistant to the Commissioner for Child Support Enforcement to the Director of Public Affairs DHGS60519 Speechwriter to the Deputy Assistant Secretary for Public Affairs (Policy and Strategy) DHGS60523 Executive Director, President's Council on Physical Fitness and Sports to the Assistant Secretary, Health DHGS60526 Confidential Assistant to the Deputy Secretary to the Deputy Secretary, Health and Human Services DHGS60527 Confidential Assistant (Scheduling) to the Director of Scheduling DHGS60546 Special Assistant to the Executive Secretary to the Executive Secretary to the Department DHGS60570 Confidential Assistant (Advance) to the Deputy Director for Advance DHGS60627 Confidential Assistant to the Administrator, Substance Abuse and Mental Health Service DHGS60632 Special Outreach Coordinator to the Deputy Assistant Secretary for Public Affairs (Policy and Strategy) DHGS60636 Senior Advisor to the Director, Indian Health Service to the Director, Indian Health Service DHGS60675 Special Assistant to the Assistant Secretary for Aging (Commissioner for Aging) DHGS60681 Confidential Assistant to the Director of Media Affairs to the Director of Media Affairs DHGS60689 Director of Media Affairs to the Director, Office of External Affairs DHGS60698 Special Assistant to the Director, Office of External Affairs to the Director, Office of External Affairs Section 213.3317 Department of Education DBGS00081 Special Assistant to the Director, Faith-Based and Community Initiatives Center DBGS00198 Special Assistant to the Assistant Secretary for Special Education and Rehabilitative Services DBGS00204 Special Assistant to the Chief Financial Officer DBGS00211 Special Assistant to the Deputy Under Secretary for Safe and Drug-Free Schools DBGS00284 Confidential Assistant (Protocol) to the Deputy Chief of Staff for Operations DBGS00285 Special Assistant (Education Attache to the United States Mission to the United Nations Educational, Scientific and Cultural Organization) to the Secretary DBGS00290 Special Assistant to the Assistant Secretary for Vocational and Adult Education DBGS00299 Special Assistant to the Assistant Secretary for Elementary and Secondary Education DBGS00303 Director, White House Initiative on Hispanic Education to the Chief of Staff DBGS00306 Deputy Assistant Secretary to the Assistant Secretary for Legislation and Congressional Affairs DBGS00344 Special Assistant to the Deputy Assistant Secretary DBGS00355 Confidential Assistant to the Chief of Staff to the Deputy Secretary DBGS00359 Special Assistant to the Assistant Secretary for Civil Rights DBGS00375 Confidential Assistant to the Assistant Secretary for Special Education and Rehabilitative Services DBGS00376 Director, Scheduling and Advance Staff to the Chief of Staff DBGS00391 Confidential Assistant to the Secretary DBGS00396 Special Assistant to the Director, Faith-Based and Community Initiatives Center DBGS00404 Special Assistant to the Deputy General Counsel for Departmental and Legislative Service DBGS00405 Special Assistant to the Assistant Secretary for Special Education and Rehabilitative Services DBGS00411 Special Assistant to the Chief of Staff DBGS00413 Special Assistant to the Assistant Secretary for Elementary and Secondary Education DBGS00423 Secretary's Regional Representative to the Director, Regional Services DBGS00424 Secretary's Regional Representative to the Director, Regional Services DBGS00425 Secretary's Regional Representative to the Director, Regional Services DBGS00427 Secretary's Regional Representative to the Director, Regional Services DBGS00428 Confidential Assistant to the Director, Regional Services DBGS00431 Press Secretary to the Chief of Staff DBGS00435 Special Assistant to the Chief of Staff DBGS00442 Confidential Assistant to the Director, Regional Services DBGS00446 Deputy Secretary's Regional Representative to the Secretary's Regional Representative, Region 3 DBGS00451 Secretary's Regional Representative, Region 5 to the Director, Regional Services DBGS00452 Secretary's Regional Representative, Region 7 to the Director, Regional Services DBGS00453 Secretary's Regional Representative, Region 8 to the Director, Regional Services DBGS00454 Deputy Secretary's Regional Representative, Region 8 to the Director, Regional Services DBGS00455 Deputy Secretary's Regional Representative—Region X to the Director, Regional Services DBGS00457 Confidential Assistant to the Assistant Secretary, Office of Communications and Outreach DBGS00462 Special Assistant to the Assistant Secretary, Office of Communications and Outreach DBGS00463 Deputy Assistant Secretary to the Assistant Secretary for Legislation and Congressional Affairs DBGS00464 Special Assistant to the Chief of Staff DBGS00466 Confidential Assistant to the Assistant Secretary, Office of Communications and Outreach DBGS00467 Director, Faith-Based and Community Initiatives Center to the Chief of Staff DBGS00469 Special Assistant to the Chief of Staff DBGS00474 Deputy Secretary's Regional Representative, Region 6 to the Director, Regional Services DBGS00476 Special Assistant to the Deputy Assistant Secretary for Media Relations and Strategic Communications DBGS00477 Deputy Secretary's Regional Representative, Region 4 to the Director, Regional Services DBGS00478 Confidential Assistant to the Assistant Secretary for Legislation and Congressional Affairs DBGS00481 Special Assistant to the Assistant Secretary for Elementary and Secondary Education DBGS00482 Executive Director to the Chief of Staff DBGS00484 Deputy Assistant Secretary to the Assistant Secretary, Office of Communications and Outreach DBGS00487 Deputy Assistant Secretary (Senate) to the Assistant Secretary for Legislation and Congressional Affairs DBGS00488 Executive Assistant to the Assistant Secretary for Postsecondary Education DBGS00495 Confidential Assistant to the Chief of Staff DBGS00499 Director, Intergovernmental Affairs to the Deputy Assistant Secretary for External Affairs and Outreach Services DBGS00500 Confidential Assistant to the Chief of Staff DBGS00503 Deputy Secretary's Regional Representative, Region 1 to the Director, Regional Services DBGS00505 Deputy Secretary's Regional Representative, Region 6 to the Director, Regional Services DBGS00508 Deputy Director, Office of English Language Acquisition to the Assistant Deputy Secretary and Director, Office of English Language Acquisition DBGS00509 Executive Director, White House Initiative on Historically Black Colleges and Universities to the Chief of Staff DBGS00511 Special Assistant to the Director, International Affairs Office DBGS00512 Special Assistant to the Deputy Assistant Secretary for External Affairs and Outreach Services DBGS00513 Special Assistant to the Assistant Secretary for Planning, Evaluation, and Policy Development DBGS00514 Special Assistant to the Director, Faith-Based and Community Initiatives Center DBGS00518 Special Assistant to the Director, Regional Services DBGS00521 Deputy Chief of Staff for Strategy to the Chief of Staff DBGS00523 Director, White House Liaison to the Chief of Staff DBGS00524 Special Assistant to the Chief of Staff to the Deputy Secretary DBGS00528 Chief of Staff to the Assistant Deputy Secretary for Innovation and Improvement DBGS00531 Press Secretary to the Assistant Secretary, Office of Communications and Outreach DBGS00532 Special Assistant to the Director, Office of Educational Technology DBGS00533 Special Assistant to the Director, White House Liaison DBGS00534 Special Assistant to the Under Secretary DBGS00536 Confidential Assistant to the Deputy Assistant Secretary DBGS00539 Special Assistant to the Senior Counselor to the Secretary DBGS00540 Confidential Assistant to the Director, Scheduling and Advance Staff DBGS00541 Special Assistant to the Assistant Deputy Secretary for Safe and Drug-Free Schools DBGS00542 Special Assistant to the Executive Assistant DBGS00543 Confidential Assistant to the Assistant Secretary for Legislation and Congressional Affairs DBGS00544 Confidential Assistant to the Press Secretary DBGS00545 Director, Regional Services to the Assistant Secretary, Office of Communications and Outreach DBGS00546 Special Assistant to the Director, Scheduling and Advance Staff DBGS00547 Special Assistant to the Assistant Secretary for Civil Rights DBGS00549 Special Assistant to the Assistant Secretary for Special Education and Rehabilitative Services DBGS00551 Confidential Assistant to the Senior Policy Advisor to the Deputy Secretary DBGS00552 Confidential Assistant to the Assistant Deputy Secretary for Safe and Drug-Free Schools DBGS00553 Deputy Secretary's Regional Representative, Region 9 to the Assistant Secretary, Office of Communications and Outreach DBGS00554 Confidential Assistant to the Deputy Chief of Staff for Policy and Programs DBGS00555 Confidential Assistant to the Assistant Secretary for Management DBGS00557 Special Assistant to the Director, White House Initiative on Hispanic Education DBGS00558 Confidential Assistant to the Assistant Secretary for Elementary and Secondary Education DBGS00559 Special Assistant to the Secretary's Regional Representative, Region 8 DBGS00561 Deputy Assistant Secretary for Policy and Strategic Initiatives to the Assistant Secretary for Elementary and Secondary Education DBGS00562 Confidential Assistant to the Deputy Assistant Secretary for Communications and Outreach DBGS00563 Confidential Assistant to the Assistant Secretary for Elementary and Secondary Education DBGS00564 Special Assistant to the Deputy Assistant Secretary for Media Relations and Strategic Communications DBGS00565 Confidential Assistant to the Director, Office of Educational Technology DBGS00567 Chief of Staff to the Assistant Secretary, Office of Communications and Outreach DBGS00568 Deputy Assistant Secretary for Policy and State Technical Assistance to the Assistant Secretary for Elementary and Secondary Education DBGS00569 Special Assistant to the Assistant Secretary for Elementary and Secondary Education DBGS00572 Special Assistant to the Assistant Secretary for Vocational and Adult Education DBGS00573 Confidential Assistant to the Deputy Assistant Secretary DBGS00574 Deputy Assistant Secretary for Community Colleges to the Assistant Secretary for Vocational and Adult Education DBGS00575 Confidential Assistant to the Director, White House Liaison DBGS00576 Special Assistant to the Director, Scheduling and Advance Staff DBGS00577 Special Assistant to the Assistant Secretary for Legislation and Congressional Affairs DBGS00578 Confidential Assistant to the Assistant Secretary for Elementary and Secondary Education DBGS00579 Confidential Assistant to the Assistant Secretary for Legislation and Congressional Affairs DBGS00580 Deputy Assistant Secretary for Performance Improvement to the Assistant Secretary for Management DBGS00581 Special Assistant to the Assistant Secretary for Legislation and Congressional Affairs DBGS00582 Confidential Assistant to the Assistant Secretary for Postsecondary Education DBGS00583 Confidential Assistant to the Senior Advisor to the Under Secretary DBGS00584 Confidential Assistant to the Deputy Assistant Secretary for Media Relations and Strategic Communications DBGS00585 Senior Advisor to the Deputy Secretary to the Deputy Secretary of Education DBGS00588 Special Assistant to the Assistant Secretary for Legislation and Congressional Affairs DBGS00589 Confidential Assistant to the Director, Scheduling and Advance Staff DBGS00590 Special Assistant to the Assistant Secretary, Office of Communications and Outreach DBGS00591 Confidential Assistant to the Press Secretary DBGS00592 Special Assistant to the Special Assistant to the Assistant Secretary, Office of Communications and Outreach DBGS00593 Special Assistant to the Special Assistant to Assistant Secretary, Office of Communications and Outreach DBGS00594 Confidential Assistant to the Press Secretary DBGS00596 Associate Assistant Deputy Secretary to the Assistant Deputy Secretary DBGS00597 Confidential Assistant to the Assistant Deputy Secretary DBGS00598 Confidential Assistant to the Assistant Secretary for Legislation and Congressional Affairs DBGS00599 Special Assistant to the Secretary's Regional Representative DBGS00600 Special Assistant to the General Counsel DBGS00601 Special Assistant to the Director, Intergovernmental Affairs DBGS00602 Confidential Assistant to the Assistant Secretary, Office of Communications and Outreach DBGS00604 Deputy Director, Office of International Affairs to the Director, International Affairs Office DBGS00605 Deputy Secretary's Regional Representative to the Director, Regional Services DBGS00606 Secretary's Regional Representative, Region 3 to the Director, Regional Services DBGS00607 Confidential Assistant to the Assistant Secretary for Special Education and Rehabilitative Services DBGS00609 Special Assistant to the Under Secretary DBGS00611 Chief of Staff to the Deputy Assistant Secretary DBGS00612 Special Assistant to the General Counsel DBGS00613 Special Assistant to the Assistant Secretary for Legislation and Congressional Affairs DBGS00614 Confidential Assistant to the Assistant Secretary, Office of Communications and Outreach DBGS00615 Special Assistant to the Assistant Secretary for Elementary and Secondary Education DBGS00616 Special Assistant to the Assistant Secretary for Elementary and Secondary Education DBGS00617 Confidential Assistant to the Chief of Staff DBGS00618 Chief of Staff to the Assistant Deputy Secretary DBGS00619 Confidential Assistant to the Deputy Assistant Secretary DBGS00620 Special Assistant to the Assistant Secretary for Postsecondary Education DBGS00621 Confidential Assistant to the Senior Advisor to the Under Secretary DBGS60077 Special Assistant to the Director, Office of Scheduling and Briefing DBGS60143 Confidential Assistant to the Director, Faith-Based and Community Initiatives Center Section 213.3318 Environmental Protection Agency EPGS00922 Associate Assistant Administrator to the Assistant Administrator for Research and Development EPGS03200 Director of Scheduling to the Deputy Chief of Staff (Operations) EPGS03500 Senior Policy Advisor to the Deputy Assistant Administrator for Water EPGS04025 Counselor to the Administrator for Agricultural Policy to the Administrator EPGS05007 Associate Director, Office of Executive Secretariat to the Chief of Staff EPGS05024 Deputy Associate Administrator to the Associate Administrator for Public Affairs EPGS05031 Program Specialist to the Assistant Administrator for Administration and Resources Management EPGS05034 Program Advisor to the Associate Administrator for Congressional and Intergovernmental Relations EPGS05036 Program Advisor Office of Public Affairs to the Deputy Chief of Staff (Operations) EPGS06000 Senior Policy Advisor to the Regional Administrator EPGS06008 Advance Specialist to the Deputy Chief of Staff (Operations) EPGS06015 Staff Secretary to the Chief of Staff EPGS06018 Program Manager (Operations) to the Administrator EPGS06022 Program Advisor to the Associate Administrator for Congressional and Intergovernmental Relations EPGS06023 Senior Speechwriter to the Associate Administrator for Public Affairs EPGS06024 Associate Assistant Administrator to the Assistant Administrator for Solid Waste and Emergency Response EPGS06028 Deputy Associate Administrator to the Associate Administrator for Congressional and Intergovernmental Relations EPGS06030 Program Specialist to the Associate Administrator for Policy, Economics and Innovation EPGS06031 Advance Specialist to the Director of Advance EPGS06033 Confidential Assistant to the Deputy Administrator EPGS06034 Deputy Speech Writer to the Associate Administrator for Public Affairs EPGS06035 Advance Specialist to the Director of Advance EPGS06036 Supervisory Public Affairs Specialist to the Associate Administrator for Public Affairs EPGS06037 Senior Policy Advisor to the Deputy Administrator EPGS07000 Deputy Press Secretary to the Associate Administrator for Public Affairs EPGS07001 Program Advisor to the Associate Administrator for Public Affairs EPGS07002 Assistant to the Scheduler to the Director of Scheduling EPGS07003 Deputy of Advance to the Director of Advance EPGS07004 Communications Specialist to the Principal Deputy Assistant Administrator for Enforcement and Compliance Assurance EPGS07005 Program Advisor (Media Relations) to the Deputy Chief of Staff (Operations) EPGS07007 Audio Visual Producer to the Deputy Chief of Staff (Operations) EPGS07009 Special Assistant to the Regional Administrator to the Regional Administrator EPGS07010 Press Secretary to the Associate Administrator for Public Affairs EPGS07011 Associate Assistant Administrator/White House Liaison to the Assistant Administrator for Administration and Resources Management EPGS07012 Advance Specialist to the Director of Advance EPGS60069 Special Assistant for Communications to the Assistant Administrator for Water EPGS60071 Senior Advisor to the Assistant Administrator for International Activities EPGS60074 Policy Analyst to the Assistant Administrator for Air and Radiation EPGS60076 Senior Counsel to the Associate Administrator for Congressional and Intergovernmental Relations Council of Economic Advisers Section 213.3323 Overseas Private Investment Corporation PQGS06001 Confidential Assistant to the Deputy Chief of Staff and Senior Advisor to President PQGS06002 Confidential Assistant to the Chief of Staff PQGS06015 Special Assistant to the Vice President, Investment Funds to the Vice President, Investment Funds PQGS60018 Executive Assistant to the President PQGS60020 Executive Assistant to the Executive Vice President Section 213.3325 United States Tax Court JCGS60040 Secretary (Confidential Assistant) to a Chief Judge JCGS60041 Secretary (Confidential Assistant) to a Chief Judge JCGS60042 Secretary (Confidential Assistant) to a Chief Judge JCGS60043 Secretary (Confidential Assistant) to a Chief Judge JCGS60044 Secretary (Confidential Assistant) to a Chief Judge JCGS60045 Secretary (Confidential Assistant) to a Chief Judge JCGS60046 Secretary (Confidential Assistant) to a Chief Judge JCGS60047 Secretary (Confidential Assistant) to a Chief Judge JCGS60048 Secretary (Confidential Assistant) to a Chief Judge JCGS60049 Secretary (Confidential Assistant) to a Chief Judge JCGS60050 Secretary (Confidential Assistant) to a Chief Judge JCGS60051 Secretary (Confidential Assistant) to a Chief Judge JCGS60052 Secretary (Confidential Assistant) to a Chief Judge JCGS60053 Secretary (Confidential Assistant) to a Chief Judge JCGS60054 Secretary (Confidential Assistant) to a Chief Judge JCGS60056 Secretary (Confidential Assistant) to a Chief Judge JCGS60057 Secretary (Confidential Assistant) to a Chief Judge JCGS60058 Secretary (Confidential Assistant) to a Chief Judge JCGS60059 Secretary (Confidential Assistant) to a Chief Judge JCGS60060 Secretary (Confidential Assistant) to a Chief Judge JCGS60061 Secretary (Confidential Assistant) to a Chief Judge JCGS60062 Secretary (Confidential Assistant) to a Chief Judge JCGS60063 Secretary (Confidential Assistant) to a Chief Judge JCGS60064 Secretary (Confidential Assistant) to a Chief Judge JCGS60065 Secretary (Confidential Assistant) to a Chief Judge JCGS60067 Trial Clerk to the Chief Judge JCGS60068 Trial Clerk to the Chief Judge JCGS60069 Trial Clerk to the Chief Judge JCGS60071 Trial Clerk to the Chief Judge JCGS60072 Trial Clerk to the Chief Judge JCGS60073 Trial Clerk to the Chief Judge JCGS60074 Trial Clerk to the Chief Judge JCGS60077 Trial Clerk to the Chief Judge JCGS60079 Trial Clerk to the Chief Judge Section 213.3327 Department of Veterans Affairs DVGS00082 Special Assistant to the Assistant Secretary for Public and Intergovernmental Affairs DVGS60011 Special Assistant to the Assistant Secretary for Public and Intergovernmental Affairs DVGS60015 Special Assistant to the Special Assistant (Supervisory Regional Veterans Service Liaison Officer) DVGS60032 Director, Center for Faith Based Community Initiatives to the Secretary of Veterans Affairs DVGS60036 Protocol Liaison Officer to the Secretary of Veterans Affairs DVGS60056 Special Assistant to the Senior Advisor DVGS60069 Special Assistant to the Secretary of Veterans Affairs Section 213.3328 Broadcasting Board of Governors IBGS00013 Chief of Staff to the Director Office of Cuba Broadcasting IBGS00018 Senior Projects Officer to the Director IBGS00020 Special Assistant to the Chairman, Broadcasting Board of Governors Section 213.3330 Securities and Exchange Commission SEOT60002 Confidential Assistant to a Commissioner SEOT60004 Director of Legislative Affairs to the Chairman SEOT60007 Confidential Assistant to a Commissioner SEOT60008 Secretary (Office Automation) to the Chief Accountant SEOT60009 Secretary to the General Counsel of the Commission SEOT60012 Investor Advocate to the Chairman SEOT60016 Secretary to the Director, Division of Enforcement SEOT60029 Secretary to the Director, Division of Market Regulation SEOT60052 Chief of Staff to the Chairman SEOT60054 Secretary to the Director, Division of Market Regulation SEOT60056 Legislative Affairs Specialist to the Director of Communications SEOT90001 Senior Advisor to the Chairman to the Chairman SEOT90006 Confidential Assistant to a Commissioner SEOT90007 Confidential Assistant to the Chairman SEOT90008 Confidential Assistant to a Commissioner Section 213.3331 Department of Energy DEGS00395 Special Assistant to the Chief of Staff DEGS00439 Senior Policy Advisor to the Assistant Secretary for Fossil Energy DEGS00440 Special Assistant to the Communications Director DEGS00443 Senior Policy Advisor to the Principal Deputy Assistant Secretary for Fossil Energy DEGS00469 Advance Representative to the Director, Office of Scheduling and Advance DEGS00476 Policy Advisor to the Director, Office of Legacy Management DEGS00480 Senior Policy Advisor for Middle East Affairs to the Assistant Secretary for Policy and International Affairs DEGS00485 Director, Office of Scheduling and Advance to the Chief of Staff DEGS00489 Special Assistant to the Deputy Secretary to the Chief of Staff DEGS00493 Senior Policy Advisor to the Director, Office of Management DEGS00498 Public Affairs Specialist to the Director of Congressional, Intergovernmental and Public Affairs DEGS00503 Speechwriter to the Director, Public Affairs DEGS00510 Lead Advance Representative to the Director, Office of Scheduling and Advance DEGS00512 Press Secretary to the Director, Public Affairs DEGS00518 Senior Legislative Advisor to the Assistant Secretary for Congressional and Intergovernmental Affairs DEGS00519 Special Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs DEGS00523 Trip Coordinator to the Director, Office of Scheduling and Advance DEGS00524 Assistant Press Secretary to the Director, Public Affairs DEGS00525 Deputy White House Liaison to the White House Liaison DEGS00526 Trip Coordinator to the Director, Office of Scheduling and Advance DEGS00527 Staff Assistant to the Director, Office of Scheduling and Advance DEGS00528 Advisor to the Under Secretary to the Senior Advisor DEGS00531 Senior Advisor to the Chief Operating Officer for Energy Efficiency and Renewable Energy DEGS00532 Special Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs DEGS00533 Senior Policy Advisor to the Assistant Secretary for Environment, Safety and Health DEGS00534 Senior Advisor to the Chief of Staff DEGS00535 Web Content Manager to the Senior Policy Advisor DEGS00536 Policy Advisor to the Senior Advisor DEGS00537 Program Assistant to the Assistant Secretary of Energy (Nuclear Energy) DEGS00540 Special Assistant to the Director, Office of Electricity Delivery and Energy Reliability DEGS00541 Director of Commercialization and Deployment to the Chief Operating Officer for Energy Efficiency and Renewable Energy DEGS00542 Special Assistant to the Director, Public Affairs DEGS00543 Communications Assistant to the Under Secretary for Science DEGS00544 Senior Communications Advisor to the Assistant Secretary of Energy (Environmental Management) DEGS00547 Scheduler to the Secretary to the Director, Office of Scheduling and Advance DEGS00548 Staff Assistant to the General Counsel DEGS00549 Senior Advisor to the Chief Operating Officer for Energy Efficiency and Renewable Energy DEGS00550 Confidential Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs DEGS00555 Deputy Chief of Staff to the Chief of Staff DEGS00557 Special Assistant to the Director, Office of Electricity Delivery and Energy Reliability DEGS00558 Advisor, Legislative Affairs to the Chief Operating Officer for Energy Efficiency and Renewable Energy DEGS00559 Special Assistant to the Assistant Secretary of Energy (Nuclear Energy) DEGS00561 Senior Advisor to the Chief of Staff DEGS00562 Senior Policy Advisor to the Associate Director for System Operations and External Relations DEGS00563 Special Assistant to the Assistant Secretary for Congressional and Intergovernmental Affairs DEGS00564 Special Assistant to the Principal Deputy Assistant Secretary DEGS00565 Special Assistant, Deputy Director of Scheduling and Advance to the Director, Office of Scheduling and Advance DEGS00567 Deputy Director, Public Affairs to the Director, Public Affairs DEGS00568 Special Assistant for Communications to the Director, Office of Electricity Delivery and Energy Reliability DEGS00569 Transmission Siting Analyst to the Director, Office of Electricity Delivery and Energy Reliability DEGS00570 Senior Policy Advisor to the Assistant Secretary of Energy (Environmental Management) DEGS00571 Special Assistant to the Director, Office of Science DEGS00572 Policy Advisor to the Deputy Assistant Secretary for International Affairs DEGS00573 Senior Counsel to the General Counsel DEGS00574 Deputy Assistant Secretary for Energy Policy to the Assistant Secretary for Congressional and Intergovernmental Affairs DEGS00575 Director of Intergovernmental and Tribal Affairs to the Deputy Assistant Secretary for Intergovernmental and External Affairs DEGS00576 Intergovernmental Liaison Officer to the Assistant Secretary for Congressional and Intergovernmental Affairs DEGS00577 Staff Assistant to the Director, Office of Scheduling and Advance DEGS00579 Senior Policy Advisor to the Deputy Administrator for Defense Nuclear Nonproliferation DEGS00582 Special Assistant to the Chief of Staff DEGS00585 Special Assistant to the Associate Director DEGS00586 Director, Office of Technology Advancement and Outreach to the Chief Operating Officer for Energy Efficiency and Renewable Energy DEGS00587 Special Assistant to the Chief of Staff DEGS00589 Senior Advisor to the Chief Operating Officer for Energy Efficiency and Renewable Energy DEGS00591 Special Assistant for Communication to the Chief Operating Officer for Energy Efficiency and Renewable DEGS00592 Small Business Specialist to the Associate Director DEGS00593 Congressional Affairs Specialist to the Director, Congressional Affairs DEGS00594 Senior Advisor for Public Affairs to the Director, Public Affairs (National Nuclear Security Administration) DEGS00598 Special Assistant to the Assistant Secretary for Policy and International Affairs DEGS60121 Special Assistant to the Director, Office of Scheduling and Advance DEGS60233 Special Assistant to the Assistant Secretary for Policy and International Affairs DEGS60265 Senior Advisor, Congressional and Intergovernmental Affairs to the Director, Office of Science DEGS60276 Senior Policy Advisor to the Director, Office of Science Section 213.3331 Federal Energy Regulatory Commission DRGS17039 Confidential Assistant to the Member-Federal Energy Regulatory Commission DRGS17040 Congressional, Intergovernmental and Public Affairs Specialist to the Director, Office of External Affairs DRGS60001 Regulatory Policy Analyst to the Director, Markets, Tariffs, and Rates DRGS60003 Confidential Assistant to the Member-Federal Energy Regulatory Commission DRGS60007 Confidential Assistant to the Member-Federal Energy Regulatory Commission Section 213.3332 Small Business Administration SBGS00540 Director of Small Business Association's Center for Faith-Based and Community Initiatives to the Chief of Staff and Chief Operating Officer SBGS00555 Legislative Assistant to the Assistant Administrator for Congressional and Legislative Affairs SBGS00572 Regional Administrator (Region 2) to the Associate Administrator for Field Operations SBGS00574 Assistant Administrator for Field Operations to the Associate Administrator for Field Operations SBGS00576 Deputy Associate Administrator for Office of Communications and Public Liaison to the Associate Administrator for Communications and Public Liaison SBGS00587 Senior Advisor for Policy and Planning to the Associate Administrator for Policy SBGS00589 Legislative Assistant to the Assistant Administrator for Congressional and Legislative Affairs SBGS00592 Regional Administrator, Region III, Philadelphia, PA to the Associate Administrator for Field Operations SBGS00593 Deputy Assistant Administrator for Congressional and Legislative Affairs to the Assistant Administrator for Congressional and Legislative Affairs SBGS00594 Press Secretary to the Associate Administrator for Communications and Public Liaison SBGS00597 Director of Scheduling to the Chief of Staff and Chief Operating Officer SBGS00600 Director of External Affairs to the Associate Administrator for Field Operations SBGS00601 Associate Administrator for Field Operations to the Administrator SBGS00602 Special Assistant to the Administrator SBGS00603 Policy Analyst to the Associate Administrator for Policy SBGS00604 Director of Scheduling and Advance to the Chief of Staff SBGS00606 Speech Writer to the Associate Administrator for Communications and Public Liaison SBGS00607 White House Liaison to the Chief of Staff SBGS00608 Assistant Administrator for Congressional and Legislative Affairs SBGS00609 Director of Performance Management to the Associate Administrator for Performance Management and Chief Financial Officer SBGS00610 Senior Advisor to the Associate Administrator for Capital Access to the Associate Administrator for Capital Access SBGS00612 Deputy Assistant Administrator for Faith Based Community Initiatives to the Director of Small Business Administration's Center for Faith-Based and Community Initiatives SBGS00613 Legislative Assistant to the Assistant Administrator for Congressional and Legislative Affairs SBGS00614 Senior Advisor to the Deputy Administrator SBGS00615 Senior Advisor, Office of Performance Management to the Director of Performance Management SBGS00616 Deputy Associate Administrator for Field Operations to the Associate Administrator for Field Operations SBGS00617 Special Assistant to the Associate Administrator for Government Contracting and Business Development SBGS60003 National Director for Native American Affairs to the Associate Administrator for Entrepreneurial Development SBGS60170 Regional Administrator, Region VIII, Denver Colorado to the Assistant Inspector General for Inspections and Evaluation SBGS60171 Regional Administrator, Region VII, Kansas City, Missouri to the District Director SBGS60173 Regional Administrator, Region VI, Dallas, Texas to the District Director SBGS60174 Regional Administrator to the Associate Administrator for Field Operations SBGS60175 Regional Administrator to the District Director SBGS60188 Regional Administrator, Region IX, San Francisco to the Administrator SBGS60189 Regional Administrator, Region 10, Seattle Washington to the Associate Administrator for Field Operations SBGS60190 Deputy Chief of Staff SBGS60559 Assistant Administrator for Congressional and Legislative Affairs to the Assistant Administrator for Congressional and Legislative Affairs Section 213.3333 Federal Deposit Insurance Corporation FDOT00010 Chief of Staff to the Chairman of the Board of Directors (Director) FDOT00012 Director for Public Affairs to the Chairman of the Board of Directors (Director) Section 213.3334 Federal Trade Commission FTGS60001 Director, Office of Public Affairs to the Chairman FTGS60006 Congressional Liaison Specialist to the Chairman FTGS60027 Confidential Assistant to a Commissioner Section 213.3337 General Services Administration GSGS00084 Special Assistant to the Regional Administrator, Region VI, Kansas City GSGS00087 Senior Advisor to the Regional Administrator, (Region IX, San Francisco) GSGS00130 Senior Advisor to the Regional Administrator-Region 7, Fort Worth Texas GSGS00132 Special Assistant to the Regional Administrator to the Regional Administrator, Region 10, Auburn, Washington GSGS00156 Confidential Assistant to the Chief of Staff GSGS00159 Deputy Director for Communications to the Deputy Associate Administrator for Communications GSGS00161 Public Affairs Specialist to the Deputy Director for Communications GSGS00163 Special Assistant to the Associate Administrator for Performance Improvement GSGS00165 Special Assistant to the Chief Acquisition Officer GSGS00166 Deputy Associate Administrator for Small Business Utilization to the Associate Administrator for Small Business Utilization GSGS00172 Senior Advisor to the Commissioner, Public Buildings Service GSGS00173 Senior Advisor to the Chief Acquisition Officer GSGS00174 Principal Deputy Associate Administrator for Congressional and Intergovernmental Affairs to the Associate Administrator for Congressional and Intergovernmental Affairs GSGS00176 Senior Advisor to the Associate Administrator for Congressional and Intergovernmental Affairs GSGS00177 Deputy Chief of Staff to the Chief of Staff GSGS00178 Special Assistant to the Chief Acquisition Officer GSGS00179 Small Business Specialist to the Associate Administrator for Small Business Utilization GSGS00182 Confidential Assistant to the Administrator GSGS00184 Deputy Associate Administrator for Congressional and Intergovernmental Affairs to the Associate Administrator for Congressional and Intergovernmental Affairs GSGS00185 Deputy Associate Administrator for Congressional and Intergovernmental Affairs to the Associate Administrator for Congressional and Intergovernmental Affairs GSGS00186 Confidential Assistant to the Associate Administrator for Performance Improvement GSGS00187 Deputy Associate Administrator for Congressional and Intergovernmental Affairs to the Principal Deputy Associate Administrator for Congressional and Intergovernmental Affairs GSGS00188 Senior Advisor to the Regional Administrator (Region VIII, Denver, Colorado) GSGS60082 Senior Advisor to the Regional Administrator, Regional 4, Atlanta, Georgia GSGS60089 Confidential Assistant to the Administrator GSGS60095 White House Liaison to the Chief of Staff GSGS60113 Special Assistant to the Regional Administrator Region 1, Boston GSGS60119 Senior Advisor to the Deputy Regional Administrator GSGS60126 Deputy Associate Administrator for Communications to the Associate Administrator for Citizen Services and Communications GSGS60127 Associate Administrator for Small Business Utilization to the Administrator GSGS60131 Director of Strategic Communications to the Deputy Associate Administrator for Communications Section 213.3338 Federal Communications Commission FCGS03051 Deputy Director, Office of Media Relations to the Chief of Staff FCGS07052 Bureau Chief to the Chairman FCGS07077 Associate Director-Senior Speechwriter to the Chairman FCGS60005 Special Assistant to the Director, Office of Legislative Affairs FCGS95448 Attorney Advisor (Legal Advisor) to the Chairman Section 213.3339 United States International Trade Commission TCGS00007 Staff Assistant (Legal) to a Commissioner TCGS00010 Staff Assistant (Legal) to a Commissioner TCGS00012 Staff Assistant (Legal) to a Commissioner TCGS00013 Staff Assistant (Economics) to the Vice Chairman TCGS00025 Confidential Assistant to a Commissioner TCGS00031 Executive Assistant to a Commissioner TCGS00033 Staff Assistant to a Commissioner TCGS00037 Staff Assistant (Legal) to the Chairman TCGS60005 Staff Assistant (Legal) to a Commissioner TCGS60006 Staff Assistant (Legal) to a Commissioner TCGS60007 Staff Assistant (Economics) to a Commissioner TCGS60015 Executive Assistant to the Vice Chairman TCGS60018 Staff Assistant (Legal) to a Commissioner TCGS60019 Staff Assistant (Legal) to a Commissioner TCGS60022 Staff Assistant (Legal) to a Commissioner TCGS60025 Staff Assistant (Legal) to a Commissioner TCGS60030 Confidential Assistant to a Commissioner TCGS60100 Senior Economist to a Commissioner TCGS60101 Executive Assistant to the Vice Chairman Section 213.3340 National Archives and Records Administration NQGS60003 Presidential Diarist to the Archivist of the United States Section 213.3342 Export-Import Bank EBSL47970 Senior Vice President and Chief of Staff to the President and Chairman Section 213.3343 Farm Credit Administration FLOT00028 Director, Congressional and Public Affairs to the Chairman, Farm Credit Administration Board FLOT00054 Chief of Staff to the Chairman, Farm Credit Administration Board FLOT00080 Executive Assistant to Member to the Chairman, Farm Credit Administration Board FLOT60013 Executive Assistant to the Member, Farm Credit Administration Board Section 213.3344 Occupational Safety and Health Review Commission SHGS00003 Confidential Assistant to a Commission Member SHGS00004 Confidential Assistant to a Commission Member SHGS60007 Counsel to a Commissioner to a Commission Member SHGS60008 Counsel to a Commissioner to a Commission Member Section 213.3346 Selective Service System SSGS00001 Public Affairs Specialist to the Director SSGS03373 Administrative Assistant to the Director Selective Service System Section 213.3348 National Aeronautics and Space Administration NNGS00044 Legislative Affairs Specialist to the Assistant Administrator for Legislative Affairs and Intergovernmental Affairs NNGS00155 Program Specialist to the Chief of Strategic Communications NNGS00168 Editor to the Assistant Administrator for Public Affairs NNGS00170 Program Specialist to the Deputy Administrator NNGS00171 Senior Legislative Affairs Program Specialist to the Assistant Administrator for Legislative Affairs and Intergovernmental Affairs NNGS00172 Congressional Relations Specialist to the Assistant Administrator for Legislative Affairs and Intergovernmental Affairs NNGS00176 Deputy Press Secretary/Public Affairs Specialist to the Assistant Administrator for Public Affairs NNGS00177 Writer/Editor to the Associate Deputy Administrator for Policy and Planning NNGS02317 Special Assistant to the Inspector General NNGS60020 Writer-Editor to the Assistant Administrator for Public Affairs Section 213.3351 Federal Mine Safety and Health Review Commission FRGS60024 Confidential Assistant to the Chairman FRGS90501 Attorney Advisor (General) to the Chairman FRGS90504 Attorney Advisor (General) to a Member Section 213.3353 Merit Systems Protection Board MPGS00002 Confidential Assistant to the Member to a Member MPGS00003 Confidential Assistant to the Member to a Board Member MPGS60010 Confidential Assistant to the Chairman MPSL00001 Chief Counsel to the Vice-Chair to the Vice Chairman Section 213.3355 Social Security Administration SZGS00017 Associate Commissioner for External Affairs to the Deputy Commissioner for Communications SZGS00018 Special Assistant to the Commissioner to the Chief of Staff Section 213.3356 Commission on Civil Rights CCGS00017 Special Assistant to the Commissioner to a Commissioner CCGS60013 Special Assistant to a Commissioner CCGS60020 Special Assistant to the Commissioner to the Chairman CCGS60031 General Counsel to the Staff Director CCGS60033 Special Assistant to a Commissioner Section 213.3357 National Credit Union Administration CUOT00025 Staff Assistant to a Board Member CUOT00026 Staff Assistant to the Vice Chair CUOT00030 Associate Director of External Affairs to the Chairman CUOT01008 Senior Policy Advisor to a Board Member CUOT01009 Senior Policy Advisor to a Board Member CUOT01317 Senior Policy Advisor to the Chairman Section 213.3360 Consumer Product Safety Commission PSGS00066 Supervisory Public Affairs Specialist to the Executive Director PSGS60007 Director, Office of Congressional Relations to the Chairman, Consumer Product Safety Commission PSGS60010 Executive Assistant to a Commissioner PSGS60014 General Counsel to the Chairman, Consumer Product Safety Commission PSGS60049 Special Assistant (Legal) to a Commissioner PSGS60061 Executive Assistant to a Commissioner PSGS60062 Special Assistant (Legal) to a Commissioner PSGS60063 Special Assistant (Legal) to a Commissioner Section 213.3365 Chemical Safety and Hazard Investigation Board FJGS60001 Special Assistant to the Chief Operating Officer Section 213.3367 Federal Maritime Commission MCGS60003 Counsel to the Commissioner to a Member MCGS60006 Counsel to the Commissioner to a Member MCGS60042 Counsel to a Member Section 213.3370 Millennium Challenge Corporation CMOT00001 Executive Assistant to the Chief Executive Officer Section 213.3371 Office of Government Ethics GGGS02900 Confidential Assistant to the Director Section 213.3373 Trade and Development Agency TDGS00004 Public Affairs Specialist to the Director TDGS60001 Executive Assistant to the Director TDGS60002 Congressional Liaison to the Director Section 213.3376 Appalachian Regional Commission APGS00005 Confidential Policy Advisor to the Federal Co-Chairman Section 213.3379 Commodity Futures Trading Commission CTGS00030 Chief of Staff to the Chairperson CTGS00091 Chief Economist to the Chairperson CTGS60004 Administrative Assistant to the Commissioner to a Commissioner CTGS60014 Special Assistant to the Commissioner to a Commissioner CTGS60477 Attorney-Advisor (General) to a Commissioner CTGS60768 Director, Office of External Affairs to the Chairperson Section 213.3382 National Endowment for the Arts NAGS00062 Counselor to the Chairman to the Chairman National Endowment for the Arts NAGS60049 Congressional Liaison to the Director, Office of Government Affairs NAGS60077 Director of Communications to the Chairman, National Endowment for the Arts NASL00001 Executive Director, Presidents Committee on the Arts and Humanities to the Chairman National Endowment for the Arts Section 213.3382 National Endowment for the Humanities NHGS00078 Associate Director of Communications and Chief Speechwriter to the Director of Communications NHGS00080 Director of Congressional Affairs to the Chairman NHGS60075 Director of Communications to the Deputy Chairman NHGS60077 Senior Advisor to the Chairman to the Chairman Section 213.3384 Department of Housing and Urban Development DUGS00032 Deputy Assistant Secretary for Congressional Relations to the Assistant Secretary for Public and Indian Housing DUGS00041 Advance Coordinator to the Assistant Secretary for Administration/Chief Human Capital Officer DUGS00044 Special Assistant to the Deputy Secretary, Housing and Urban Development DUGS60039 Staff Assistant to the Assistant Secretary for Community Planning and Development DUGS60110 Staff Assistant to the Assistant Secretary for Housing, Federal Housing Commissioner DUGS60138 Special Assistant to the Assistant Secretary for Community Planning and Development DUGS60151 Staff Assistant to the Assistant Secretary for Public Affairs DUGS60168 Staff Assistant to the Chief of Staff DUGS60174 Congressional Relations Officer to the Deputy Assistant Secretary for Congressional Relations DUGS60175 Special Assistant to the Deputy Assistant Secretary for Congressional and Intergovernmental Relations DUGS60176 Staff Assistant to the Deputy Assistant Secretary for Congressional Relations DUGS60187 Staff Assistant to the Assistant Secretary for Public Affairs DUGS60195 Staff Assistant to the Deputy Assistant Secretary for Economic Development DUGS60206 Intergovernmental Relations Specialist to the Assistant Secretary for Congressional and Intergovernmental Relations DUGS60210 Special Assistant to the Assistant Secretary for Congressional and Intergovernmental Relations DUGS60211 Advance Coordinator to the Director, Office of Executive Scheduling and Operations DUGS60217 Special Policy Advisor to the Assistant Secretary for Policy Development and Research DUGS60224 Regional Director, Seattle, Washington to the Deputy Secretary, Housing and Urban Development DUGS60232 Staff Assistant to the Assistant Deputy Secretary for Field Policy and Management DUGS60238 Special Assistant to the Regional Director to the Regional Director DUGS60255 Special Assistant to the Assistant Secretary for Policy Development and Research DUGS60281 Special Projects Officer to the Assistant Secretary for Housing, Federal Housing Commissioner DUGS60288 Congressional Relations Officer to the Assistant Secretary for Congressional and Intergovernmental Relations DUGS60289 Special Policy Advisor to the Assistant Secretary for Community Planning and Development DUGS60291 Staff Assistant to the Secretary, Housing and Urban Development DUGS60293 Staff Assistant to the President, Government National Mortgage Association DUGS60319 Regional Director to the Assistant Deputy Secretary for Field Policy and Management DUGS60330 Deputy Assistant Secretary for Economic Development to the Assistant Secretary for Community Planning and Development DUGS60338 Special Policy Advisor to the Assistant Secretary for Housing, Federal Housing Commissioner DUGS60340 Special Assistant to the Chief of Staff DUGS60354 Special Assistant to the Assistant Secretary for Public and Indian Housing DUGS60357 Staff Assistant to the Chief of Staff DUGS60366 Deputy Assistant Secretary for Regulatory Affairs and Manufactured Housing to the Deputy Assistant Secretary for Regulatory Affairs and Manufactured Housing DUGS60373 Media Outreach Specialist to the Assistant Secretary for Public Affairs DUGS60385 Staff Assistant to the General Deputy Assistant Secretary for Public Affairs DUGS60390 Senior Legislative Specialist to the Assistant Secretary for Congressional and Intergovernmental Relations DUGS60391 Special Assistant to the Regional Director DUGS60394 Staff Assistant to the Assistant Secretary for Community Planning and Development DUGS60410 Special Assistant to the General Counsel DUGS60411 Special Assistant to the General Counsel DUGS60416 Staff Assistant to the Assistant Secretary for Public and Indian Housing DUGS60419 Speechwriter to the General Deputy Assistant Secretary for Public Affairs DUGS60421 Director, Office of Executive Scheduling and Operations to the Assistant Secretary for Administration/Chief Human Capital Officer DUGS60423 Staff Assistant to the Assistant Secretary for Administration/Chief Human Capital Officer DUGS60427 Staff Assistant to the Assistant Secretary for Administration/Chief Human Capital Officer DUGS60431 Regional Director, Kansas City, Kansas to the Deputy Assistant Secretary for Congressional and Intergovernmental Relations DUGS60447 Staff Assistant to the Assistant Secretary for Community Planning and Development DUGS60449 Congressional Relations Specialist to the Deputy Assistant Secretary for Congressional Relations DUGS60458 Legislative Specialist to the Deputy Assistant Secretary for Intergovernmental Relations DUGS60464 Special Projects Coordinator to the Regional Director DUGS60467 Staff Assistant to the Assistant Secretary for Community Planning and Development DUGS60468 Staff Assistant to the Assistant Secretary for Community Planning and Development DUGS60470 Staff Assistant to the General Counsel DUGS60489 Director, Office of Receivership Oversight to the Assistant Secretary for Public and Indian Housing DUGS60502 Special Policy Advisor to the Assistant Secretary for Public and Indian Housing DUGS60505 Deputy Assistant Secretary for Intergovernmental Relations to the Assistant Secretary for Congressional and Intergovernmental Relations DUGS60542 Assistant to the Secretary and White House Liaison to the Secretary, Housing and Urban Development DUGS60543 Staff Assistant to the Director, Center for Faith Based and Community Initiatives DUGS60546 Special Assistant to the Deputy Secretary, Housing and Urban Development DUGS60571 Deputy Assistant for International Affairs to the Assistant Secretary for Policy Development and Research DUGS60575 Special Assistant to the Assistant Deputy Secretary for Field Policy and Management DUGS60588 Staff Assistant to the Assistant Secretary for Administration/Chief Human Capital Officer DUGS60601 Legislative Specialist to the Assistant Secretary for Congressional and Intergovernmental Relations DUGS60620 Staff Assistant to the Assistant Secretary for Administration/Chief Human Capital Officer Section 213.3388 President's Commission on White House Fellowships WHGS00018 Special Assistant to the Director, President's Commission on White House Fellowships WHGS00019 Associate Director to the Director, President's Commission on White House Fellowships WHGS00020 Staff Assistant to the Associate Director Section 213.3389 National Mediation Board NMGS60053 Confidential Assistant to the Chairman NMGS60054 Confidential Assistant to a Board Member NMGS60056 Confidential Assistant to a Board Member Section 213.3391 Office of Personnel Management PMGS00033 Chief, Office of Senate Affairs to the Director, Office of Congressional Relations PMGS00052 Special Counsel to the General Counsel PMGS00056 Special Assistant to the Director, Office of Communications and Public Liaison PMGS00057 Executive Director to Chief Human Capital Officer Council to the Executive Director and Senior Counselor PMGS00059 Congressional Relations Officer to the Director, Office of Congressional Relations PMGS00063 Staff Assistant to the White House Liaison PMGS30249 Congressional Relations Officer to the Director, Office of Congressional Relations PMGS60018 Special Assistant to the Director, Office of Communications and Public Liaison PMGS60019 Special Assistant to the Director, Office of Communications and Public Liaison PMGS60028 Scheduler and Special Assistant to the Chief of Staff and Director of External Affairs PMGS60051 Special Assistant to the Director, Office of Communications and Public Liaison Section 213.3392 Federal Labor Relations Authority FAGS60022 Executive Assistant to the Chairman FAGS60023 Management Assistant to the General Counsel Section 213.3393 Pension Benefit Guaranty Corporation BGSL00063 Deputy Executive Director, Office of Policy and External Affairs to the Deputy Executive Director, Office of Policy and External Affairs Section 213.3394 Department of Transportation DTGS60017 Assistant to the Secretary for Policy to the Secretary DTGS60054 Associate Director for Governmental Affairs to the Deputy Assistant Secretary for Governmental Affairs DTGS60055 Associate Director for Governmental Affairs to the Assistant Secretary for Governmental Affairs DTGS60117 Assistant to the Secretary for Policy to the Secretary DTGS60139 Special Assistant to the Deputy Secretary DTGS60159 Special Assistant to the Associate Administrator for Policy and Governmental Affairs DTGS60173 Director of Congressional Affairs to the Administrator DTGS60194 Special Assistant to the Administrator DTGS60197 Confidential Assistant to the Chief of Staff DTGS60199 Special Assistant to the Associate Administrator for Communications and Legislative Affairs DTGS60202 Counselor to the Administrator DTGS60229 Special Assistant to the Administrator DTGS60239 Director, Office of Congressional and Public Affairs to the Administrator DTGS60243 Speechwriter to the Associate Director for Speechwriting DTGS60257 Deputy Director for Public Affairs to the Assistant to the Secretary and Director of Public Affairs DTGS60274 Special Assistant to the Assistant to the Secretary and Director of Public Affairs DTGS60279 Associate Director for Speechwriting to the Assistant to the Secretary and Director of Public Affairs DTGS60292 Associate Director for Governmental Affairs to the Assistant Secretary for Governmental Affairs DTGS60294 Counselor to the Under Secretary of Transportation for Policy DTGS60301 Associate Director for Governmental Affairs to the Deputy Assistant Secretary for Governmental Affairs DTGS60311 Special Assistant to the Director for Scheduling and Advance DTGS60313 Director of External Affairs to the Administrator DTGS60317 Deputy Assistant Administrator for Government and Industry Affairs to the Assistant Administrator for Government and Industry Affairs DTGS60324 Director for Scheduling and Advance to the Chief of Staff DTGS60337 Executive Director for Public Affairs to the Administrator DTGS60342 Special Assistant for Scheduling and Advance to the Director for Scheduling and Advance DTGS60351 Counselor to the Deputy Secretary DTGS60357 Special Assistant to the White House Liaison and Scheduling and Advance to the Director for Scheduling and Advance DTGS60364 Special Assistant to the Assistant Secretary for Transportation Policy DTGS60369 Deputy Assistant Secretary for Governmental Affairs to the Assistant Secretary for Governmental Affairs DTGS60371 Deputy Assistant Secretary for Governmental Affairs to the Assistant Secretary for Governmental Affairs DTGS60375 White House Liaison to the Chief of Staff DTGS60376 Director, Office of Small and Disadvantaged Business Utilization to the Secretary DTGS60377 Director, Office of Governmental, International and Public Affairs to the Deputy Administrator DTGS60379 Confidential Assistant to the Assistant to the Secretary and Director of Public Affairs DTGS60380 Associate Administrator for Governmental, International, and Public Affairs to the Administrator DTGS60381 Chief of Staff to the Administrator DTGS60450 Deputy Director for Scheduling and Advance to the Secretary DTGS60451 Director of Communications to the Administrator DTGS60460 Director of Public Affairs to the Administrator Section 213.3396 National Transportation Safety Board TBGS60025 Special Assistant to the Vice Chairman TBGS60033 Assistant to the Director, National Transportation Safety Board Academy for Special Projects to the Chairman TBGS60105 Confidential Assistant to the Vice Chairman TBGS60107 Confidential Assistant to a Member Section 213.3397 Federal Housing Finance Board FBOT00004 Counsel to the Chairman FBOT00005 Staff Assistant to the Chairman FBOT00010 Special Assistant to the Board Director FBOT60009 Special Assistant to the Board Director Authority: 5 U.S.C. 3301 and 3302; E.O. 10577, 3 CFR 1954-1958 Comp., p. 218. Office of Personnel Management. Howard Weizmann, Deputy Director. [FR Doc. E7-20648 Filed 10-22-07; 8:45 am] BILLING CODE 6325-39-P 72 204 Tuesday, October 23, 2007 Notices Part V Department of Education Compliance Agreement; Notice DEPARTMENT OF EDUCATION Compliance Agreement AGENCY: Department of Education. ACTION: Notice of written findings, compliance agreement with the Commonwealth of Puerto Rico and the Puerto Rico Department of Education, and subsequent actions. SUMMARY: This notice is being published in the **Federal Register** consistent with sections 457(b)(2) and
(d)of the General Education Provisions Act (GEPA). Section 457 of GEPA authorizes the U.S. Department of Education (the Department) to enter into a compliance agreement with a recipient that is failing to comply substantially with Federal program requirements and for whom the Department determines that full compliance is not feasible until a future date. Section 457(b)(2) requires the Department to publish written findings leading to a compliance agreement, with a copy of the compliance agreement, in the **Federal Register** . If a recipient fails to comply with the terms and conditions of a compliance agreement, the Secretary may take any action authorized by law with respect to the recipient. On October 25, 2004, the Department entered into a compliance agreement (Agreement) with the Commonwealth of Puerto Rico (Puerto Rico) and the Puerto Rico Department of Education
(PRDE)because PRDE was failing to comply substantially with numerous Federal requirements, and it was clear to the Department from all available information that PRDE would not be able to come into full compliance with applicable Federal requirements for the administration of Department programs until a future date. The Agreement applied to all grant funds awarded to Puerto Rico and PRDE by the Department's Offices of Special Education and Rehabilitative Services; Elementary and Secondary Education; English Language Acquisition, Language Enhancement and Academic Achievement for Limited English Proficient Students; Vocational and Adult Education; Innovation and Improvement; and Postsecondary Education. Prior to, and during the term of, the Agreement, the Department and PRDE have been working collaboratively to resolve a backlog of PRDE audits dating back to 1994 and, through jointly developed corrective action plans, to address a range of longstanding problems in PRDE's administration of Federal grants in the areas of grants management, payroll, financial management, property management, and procurement. FOR FURTHER INFORMATION CONTACT: Mr. Phil Maestri, U.S. Department of Education, Office of the Secretary, 400 Maryland Avenue, SW., Room 7E206, Washington, DC 20202-6132. Telephone:
(202)205-3511. If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service
(FRS)at 1-800-877-8339. Individuals with disabilities may obtain this document in an alternative format ( *e.g.* , Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT . SUPPLEMENTARY INFORMATION: PRDE is a State educational agency
(SEA)that receives grant funds under a number of programs administered by the Department, including programs authorized under the Elementary and Secondary Education Act of 1965, as amended; the Carl D. Perkins Career and Technical Education Act of 2006 (formerly the Carl D. Perkins Vocational and Technical Education Act); the Adult Education and Family Literacy Act; and the Individuals with Disabilities Education Act. Because of longstanding and recurring audit findings of fiscal and programmatic accountability deficiencies in the administration of Department programs by PRDE and several other agencies in Puerto Rico with management responsibility for Department funds, in 2002 the Department designated PRDE a “high-risk” grantee under the authority of 34 CFR 80.12. At that time, the Department imposed special conditions on all Department grants awarded to PRDE because of its history of unsatisfactory performance, as uncovered by audits dating back to 1994. Audit findings were recurrent over several years and involved such issues as missing or inadequate documentation to support procurements, lack of proper accounting procedures, mismanagement of property, and improper payroll costs. In September 2003, the Department and PRDE began a collaborative effort, under the Department's Cooperative Audit Resolution and Oversight Initiative (CAROI) to resolve jointly the backlog of unresolved PRDE audits, which contained over six hundred audit findings dating back to 1994. Through this effort, PRDE made some progress in establishing controls to improve its payroll and procurement processes and its grants management system, to enable it to address a number of the recurring audit issues and make systemic changes. However, it appeared that it would take additional time to address completely the underlying issues and longstanding systemic problems that led to the large number of audit findings that PRDE was attempting to resolve. Therefore, the Department proposed the possibility of Puerto Rico, PRDE, and the Department entering into a compliance agreement, pursuant to section 454 of GEPA, that would apply to all Department grants awarded to, and administered by, PRDE. The purpose of the compliance agreement would be to bring PRDE “into full compliance with the applicable requirements of the law as soon as feasible and not to excuse or remedy past violations of such requirements.” 1 20 U.S.C. 1234f(a). Under a compliance agreement, PRDE would have up to three years to continue its efforts to address the audit findings and underlying problems by implementing significant changes and improvements in grant administration, payroll, financial and property management, and procurement in order to come into full compliance with Federal requirements related to the programs under which the Department awards grants to PRDE. In order to enter into a compliance agreement with Puerto Rico and PRDE, the Department had to determine, in written findings, that PRDE would not be able to comply until a future date with the applicable program requirements and that a compliance agreement would be a viable means for bringing about such compliance. 1 Section 454 of GEPA, 20 U.S.C. 1234c, sets out the remedies available to the Department when it determines that a recipient “is failing to comply substantially with any requirement of law applicable” to the Federal program funds administered by this agency. Specifically, the Department is authorized to—
(1)Withhold funds;
(2)Obtain compliance through a cease and desist order;
(3)Enter into a compliance agreement with the recipient; or
(4)Take any other action authorized by law. In accordance with the requirements of section 457(b) of GEPA, 20 U.S.C 1234f(b), Department officials conducted a public hearing in Puerto Rico in October 2004. Witnesses representing PRDE and other concerned individuals testified at this hearing on whether a compliance agreement with Puerto Rico and PRDE would be appropriate. The Department reviewed this testimony and all other relevant materials and concluded that, while the Department had been working closely with Puerto Rico, PRDE, and other Puerto Rico agencies to address the major issues that PRDE had been facing in administering Department grant programs, it was clear that the problems could not be corrected by PRDE immediately and that PRDE would need more than one year to correct them. Therefore, the Department, Puerto Rico, and PRDE entered into the Agreement, a comprehensive compliance agreement with a three-year term. The Agreement, which incorporated the Department's written findings, gave PRDE time to develop integrated and systemic solutions to problems in managing its Department funds and programs. Under the terms of the Agreement, by the end of the three-year term, PRDE is supposed to be in full compliance with the requirements of all programs funded by the Department. The Agreement became effective on October 25, 2004 and is set to expire on October 25, 2007. Upon entering into the Agreement, the Department removed PRDE's “high-risk” designation related to the audit findings and underlying problems, based upon PRDE's demonstration of initiative and commitment to resolving the problems that had led to the “high-risk” designation, and upon PRDE's willing and effective collaboration with the Department. Also upon entering into the Agreement, the Department and PRDE worked together to develop corrective action plans covering grants management, payroll, property management, and procurement. These plans contained goals, action steps, and objectives to guide PRDE into full compliance with Federal requirements applicable to the grants that it receives from the Department. The Department has been closely monitoring PRDE's progress in implementing these corrective action plans through site visits, conference calls, meetings, and reviews of PRDE's periodic written reports. In addition, in July 2006, the Department and PRDE collaboratively resolved the backlog of audit findings from audit reports issued for fiscal years 1994 through 2003; in May 2007, they resolved the fiscal year 2004 single audit of PRDE; and in September 2007, they resolved, in large part, the fiscal year 2005 single audit of PRDE. The Department is currently working with PRDE to determine the full extent of PRDE's progress under the compliance agreement and corrective action plans, and the effect of such progress. Based on this assessment, the Department is also determining next steps for PRDE following the expiration of the Agreement. As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), the Agreement (which incorporates the Department's written findings in the sections entitled “Overview of Issues Addressed by this Compliance Agreement” and “Removal of `High-Risk' Designation”) is included as appendix A of this notice. Electronic Access to This Document You may view this document, as well as all other Department of Education documents published in the **Federal Register** , in text or Adobe Portable Document Format
(PDF)on the Internet at the following site: *http://www.ed.gov/news/fedregister.* To use PDF you must have the Adobe Acrobat Reader Program with Search, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at
(202)512-1530. Note: The official version of a document is the document published in the **Federal Register** . Free Internet access to the official edition of the **Federal Register** and the Code of Federal Regulations is available on GPO Access at: *http://www.gpoaccess.gov/nara/index.html.* (Authority: 20 U.S.C. 1234c, 1234f). Dated: October 18, 2007. Hudson La Force III, Senior Counselor to the Secretary of Education. Appendix A—Compliance Agreement Among The Commonwealth of Puerto Rico, The Puerto Rico Department of Education, and The United States Department of Education October 25, 2004 I. Overview of Issues Addressed by This Compliance Agreement The Puerto Rico Department of Education
(PRDE)has been undertaking a large-scale endeavor to address long-standing, systemic issues faced by PRDE, including the resolution of audit findings issued by auditors dating back to 1994. PRDE has been putting forth great effort to rebuild, to make important changes, to improve education services to students, and to restore the trust and credibility previously lost by PRDE. A number of these activities have been undertaken in accordance with special conditions imposed on PRDE's grants, with technical assistance by the U.S. Department of Education (the Department), and as part of an initiative undertaken between PRDE and the Department, under the Department's Cooperative Audit Resolution and Oversight Initiative (CAROI). Although the Department has been working closely and productively with PRDE in recent months to address these major issues, it appears that it will take more than one year to completely address some of the long-standing, systemic problems that PRDE is working so hard to correct, and it will also take the continued cooperation of other parts of the Puerto Rico government. Therefore, the Department is entering into this comprehensive, three-year Compliance Agreement (Agreement) with the Commonwealth of Puerto Rico (Puerto Rico) and PRDE. Through this Agreement, Puerto Rico and PRDE, with assistance from the Department, agree to develop or complete integrated and systemic solutions to problems they have had in the management of Federal education funds and programs. The issues are being carefully examined and addressed from the perspective of PRDE and other Puerto Rico agencies with management responsibility for resources or programs that have an impact on education in Puerto Rico. Solutions involve re-engineering systems and processes and the increased use of technology. In addition, solutions must address communication and cooperation among Puerto Rico agencies, including PRDE (including its Office of Federal Affairs (OFA)), Departmento de Hacienda, Oficina de Gerencia y Presupuesto (OGP), and Banco Gubernamental de Fomento. Whatever the solutions Puerto Rico and PRDE choose to implement, they should seek to ensure the best educational systems possible for the students of Puerto Rico. It is also understood that by the end of the term of this Agreement, Puerto Rico, and PRDE in particular, must be in full compliance with the requirements of all programs funded by the Department. This Compliance Agreement is also intended to ensure an effective planning and evaluation process throughout PRDE's programs and initiatives. Planning and evaluation processes are the basis for determining program goals, current status, improvement needs, budgets, resources, effectiveness of results, and other important aspects of effective program management. Through this Agreement, Puerto Rico and PRDE will improve program planning and evaluation for education programs and use the plans and evaluation results to drive management and resource decisions. This Compliance Agreement addresses the following issue areas: Grants Management generally, Grants Management for several specific program areas, Payroll, and Procurement and Property Management. This Agreement lists specific tasks, goals, and measurable objectives for each issue area. Action steps and substeps with corresponding timelines, the persons and offices responsible for carrying out specific tasks, and underlying problems resolved by Puerto Rico's compliance with each task, goal, and action step, will be contained more fully in the Puerto Rico Action Plans that will be completed within the next thirty days and will be incorporated into the Agreement by reference. The General Grants Management Task contained in this Agreement (Task 1.0) applies to the administration of all Federal education programs administered by PRDE. In addition to the general section on Grants Management, Tasks 2.0 through 5.0 below contain additional, program-specific tasks, goals, and steps, which will apply to the administration of specific areas or programs, as noted, including the Community Schools, the Vocational Education Program, authorized under the Carl D. Perkins Vocational and Technical Education Act of 1998 (20 U.S.C. 2301, *et seq.* ), the Adult Education Program, authorized under the Adult Education and Family Literacy Act (20 U.S.C 9201 *et seq.* ), and the Special Education Program, authorized under Part B of the Individuals with Disabilities Education Act (20 U.S.C. 1401, *et seq.* ). The Department will review Puerto Rico's and PRDE's progress in meeting the terms of this Agreement by assessing the systemic approaches and degree of integration that Puerto Rico and PRDE bring in designing and implementing solutions to the complex problems in each of the crosscutting areas, by the demonstrated communication, cooperation, and organizational culture change toward “getting the work done right,” and by assessing Puerto Rico's and PRDE's completion of corrective action steps. The approaches adopted by Puerto Rico and PRDE should include effective planning and evaluation of resource and management decisions that are designed to produce better educational results. In making the critical systemic and organizational changes required to meet the terms of this Compliance Agreement, it is important to understand that the Agreement is not only designed to bring about compliance with Federal requirements but toward improving education for the students of Puerto Rico. In the end, the Department and Puerto Rico will judge success by compliance with all requirements and by determining how well Puerto Rico has improved educational programs by meeting applicable requirements and the terms of this Compliance Agreement. II. Removal of “High-Risk” Designation In 2002, the Department designated PRDE a “high-risk” grantee, under authority of § 80.12 of the Education Department General Administrative Regulations (EDGAR) (34 C.F.R. 80.12). At that time, special conditions were placed on all Department grants awarded to PRDE because of its history of unsatisfactory performance, as uncovered by audits dating back to 1994. The Department's special conditions were intended to bring about necessary changes to Federal program administration in Puerto Rico that would ultimately bring it into compliance with all Federal program requirements. The special conditions were intended to result in important improvements to Federal grants administration in Puerto Rico so that the systemic problems uncovered by the auditors would be corrected and would not reoccur. In addressing the special conditions, and in conjunction with CAROI, as outlined below, PRDE has taken numerous steps to address underlying problems. Since September 2003, the Department and PRDE have been working together in a collaborative effort under the CAROI process, to jointly resolve the backlog of unresolved PRDE audits, which contain over six hundred audit findings dating back to 1994. As a result of this effort, PRDE has already taken steps and established controls to improve its payroll and procurement processes and its management of grants to address numerous recurring audit issues and make systemic changes. It has assigned knowledgeable staff to this task and has employed expert contractors to assist in this effort. PRDE has sought to come into compliance with Federal requirements with the ultimate goal of improving educational services to all students in Puerto Rico. One of the most significant steps Puerto Rico and PRDE have taken is the creation of both an Internal Audit Office and an Audit Oversight Committee that will provide independent review and oversight of Puerto Rico and PRDE activities and will assure Puerto Rico and PRDE's commitment to maintaining a strong control environment, quality financial reporting, and compliance with program objectives and regulations. The signing of the legislation for the Audit Oversight Committee, on August 5, 2004, was a very positive step that demonstrated the commitment and strides Puerto Rico and PRDE are taking to protect the Federal funds they receive and to help ensure they meet the fiscal and programmatic responsibilities under all Federal programs. PRDE has worked very effectively with the Department and has generally committed itself to improving its Federal program administration by placing a high priority on addressing and ultimately eliminating what had been found to be serious problems. Since PRDE has demonstrated great initiative and commitment to resolving the problems that led to the 2002 “high-risk” designation, in recognition of the progress shown by PRDE, upon execution of this Agreement, the Department will remove PRDE's “high-risk” designation. However, all special conditions currently applicable to Federal education grants awarded to PRDE remain in effect. The Department will work with PRDE within thirty days to eliminate possible duplication of effort in the special conditions and in this Agreement including with respect to reporting requirements. In lieu of the “high-risk” designation, during the first six months following execution of this Agreement, *i.e.* , the early implementation phase of this Agreement, PRDE will be on “probationary status.” During this period, the Department and PRDE will continue the close, cooperative relationship that has characterized their work under the CAROI initiative, but the Department will scrutinize very carefully the progress that PRDE is making under the Agreement. The Department will remain available to provide PRDE with technical assistance that is needed, and it will also oversee the progress made by PRDE on its Federal program administration, consistent with the terms of this Agreement. PRDE will remain committed to continued and timely movement toward full compliance with Federal requirements. III. Consequences for Not Meeting the Terms and Conditions of This Agreement A. Mutual Agreements and Understandings Regarding the Terms, Conditions and Enforcement of This Compliance Agreement Severability The parties agree that this Compliance Agreement includes terms and conditions that apply to the various Federal programs included in the Agreement (hereafter “covered Federal programs”) and also terms and conditions that are program specific. To that end, the parties agree that each such term and condition for each covered Federal program may constitute a separate agreement among Puerto Rico, PRDE and the Department. For purposes of 20 U.S.C. § 1234f, each such term or condition as to each covered Federal program shall be severable from each other term or condition for each of the covered Federal programs. Unless set out otherwise, a determination by the Department under 20 U.S.C. § 1234f
(d)that Puerto Rico or PRDE is not meeting terms and conditions may be specific to such term, condition, or program without impacting Puerto Rico's or PRDE's continuing obligations under the Agreement. That is, all other terms and conditions for all covered Federal programs or the specific term or condition for other covered Federal programs would remain in place for the duration of the Agreement or until such time as the Department were to determine that Puerto Rico or PRDE had substantially failed to meet those terms and conditions. Alternatively, the parties understand and agree that a determination by the Department under 20 U.S.C. § 1234f(d) that Puerto Rico or PRDE has substantially failed to meet any of the terms and conditions shall, at the Department's discretion, be grounds for finding the Agreement, as to such terms and conditions, no longer in effect and that the Department may take any and all additional actions authorized by law. At the same time, if Puerto Rico or PRDE substantially fails to meet the terms and conditions of the Agreement, the Department may terminate the entire Agreement, and the Department may take any and all actions authorized by law. Some examples of such actions are set out below. Judicial Enforcement 1. *Cease and Desist Order Under 20 U.S.C. §§ 1234c(a)(2) and 1234e* The Department may seek injunctive relief to compel specific actions or to stop specific actions. Under this process, the Department issues a complaint to Puerto Rico or PRDE, describing the factual and legal basis for the Department's belief that Puerto Rico or PRDE is failing to comply substantially with a requirement of law including this Agreement, and containing a notice of hearing. A hearing before an Administrative Law Judge
(ALJ)could then occur. The ALJ's report and order, requiring Puerto Rico or PRDE to stop specific actions or compelling specific actions, becomes the final agency decision. The Department may enforce the final order by withholding any portion of Puerto Rico's or PRDE's grant award or certifying the facts to the Attorney General who may bring an appropriate action for enforcement of the order. 2. *Referral to Department of Justice For Appropriate Enforcement—20 U.S.C. § 1416* If the Department finds, after reasonable notice and opportunity for hearing to Puerto Rico or PRDE, that there has been a failure by Puerto Rico or PRDE to comply substantially with any provision of applicable Federal laws (with regard to the programs to which 20 U.S.C. § 1416 applies) (including terms of Compliance Agreement within timelines in the Agreement), the Department may, after notifying Puerto Rico or PRDE, refer the matter for an appropriate enforcement action, which may include referral to the Department of Justice. Withholding of Grant Funds—20 U.S.C. §§ 1234c(a)(1), 1234d and 1416 If the Department finds, after reasonable notice and opportunity for hearing to Puerto Rico or PRDE, that there has been a failure to comply substantially with a requirement of law, including with this Agreement, the Department may, after notifying Puerto Rico or PRDE or both, withhold, in whole or in part, future payments. The Department may limit withholding to a particular Federal grant or part of the grant. Escrow Account To Fund Third-Party If Puerto Rico or PRDE fails substantially to meet a significant term in this Compliance Agreement, the Department may place an appropriate amount of Puerto Rico's or PRDE's grants into an interest bearing escrow account to fund the duties of a third-party fiduciary agent. Puerto Rico or PRDE may request a reconsideration of this action. Recovery of Funds—20 U.S.C. § 1234a Any funds improperly expended or not properly accounted for are subject to recovery by the Department according to 20 U.S.C. § 1234a. B. Criteria for Determining Consequences Puerto Rico or PRDE will provide the Department with progress reports—as required in Section IV below—for the action steps and measurable objectives set forth in the Agreement. Puerto Rico or PRDE, and the Department agree that substantial failure to:
(1)provide all required reports in a timely manner,
(2)show substantial progress in completing action steps as required,
(3)complete significant action steps within the timeframes designated in the Agreement, or
(4)achieve critical measurable objectives as specified in this Agreement, will be considered a failure to meet the terms and conditions of this Agreement. Reinstatement of “High-Risk” Status Under 34 CFR § 80.12 In the event that PRDE and Puerto Rico fail to continue their efforts toward correcting the systemic problems uncovered by the auditors between 1994 and 2003, and are not making sufficient progress to meet the terms of this Agreement, the Department retains the authority to reinstate the “high-risk” designation being removed under the terms of this Agreement. If the Department determines that such reinstatement becomes necessary, additional special conditions or restrictions may include, but will not necessarily be limited to:
(1)payment of Federal funds on a reimbursement basis;
(2)withholding authority to proceed to next phase until receipt of evidence of acceptable performance within a given funding period;
(3)requiring additional, more detailed financial reports;
(4)requiring additional project monitoring;
(5)requiring PRDE to obtain technical or management assistance, including the designation of a third-party fiduciary to administer all or part of PRDE's grants from the Department; or
(6)establishing additional prior approvals. The use of a condition for one covered Federal program does not require or preclude its use for a different covered Federal program. In the event that the Department decides to reinstate “high-risk” status, it would notify PRDE as early as possible, in writing, of the:
(1)Nature of additional special conditions and restrictions;
(2)reason(s) for imposing them;
(3)corrective actions which must be taken before they will be removed and time allowed for completing any additional corrective actions; and
(4)method of requesting reconsideration of conditions and restrictions imposed. IV. Reporting Requirements This Compliance Agreement requires regular progress reporting for all issues. Generally, Puerto Rico and PRDE must provide the Department with progress reports on a quarterly basis. The submission of each written report will be preceded by a meeting or conference call among representatives of Puerto Rico (which may include representatives of the various Puerto Rico agencies mentioned in Section I above), PRDE, and the Department, within five business days (according to PRDE's business calendar) of the end of the quarter, to discuss Puerto Rico and PRDE's progress and what level of detail the Department wants Puerto Rico and PRDE to cover in its written quarterly report that will be submitted within fifteen business days (according to PRDE's business calendar) of the call or meeting. The parties may modify the schedule by mutual agreement. Subject to the meeting or call above, in general, each quarterly report will include information such as:
(1)a description of activities and progress for each task and its related sub-tasks during the reporting period,
(2)the status of each critical action step required to be taken during the reporting period,
(3)documentation of critical action step completion for those steps required to be completed during the reporting period (including explanations of delays for all steps not completed that were scheduled to be completed during the period, and expected completion dates for all unimplemented steps),
(4)documentation of measures of performance and results, and
(5)other data or documentation as specified within the action steps for each task or related sub-task in this Agreement, and/or discussed in the pre-report meeting among the Department, Puerto Rico, and PRDE. Puerto Rico and PRDE will consider, if feasible and cost-effective, transmitting reporting information to the Department via an Internet web site. If transmittal of the reporting information is not possible via a website, Puerto Rico and PRDE will continue to be responsible for tracking, monitoring and reporting progress on all requirements and milestones in this Agreement in a manner that is fully accessible to the Department and the public. Reporting information will be updated continuously, but in any event, on a quarterly basis, no later than within fifteen business days (according to PRDE's business calendar) from the day of the call or meeting among the Department, Puerto Rico, and PRDE, specifying the specific reporting required for that quarterly period. These reports also will fulfill the reporting requirements required under PRDE's special conditions that are currently in effect or as modified in accordance with the process to eliminate duplication in Section II above. The first quarterly period will encompass the time from which all parties sign this Agreement through December 31, 2004. Within the first thirty days of this Agreement, the Department will work with PRDE to agree on a more rigorous reporting schedule for reporting progress during the first six months following execution of this Agreement, (the early implementation phase of this Agreement). V. Updated Action Plans, Action Steps, and Timelines Action steps and timelines that PRDE has developed are included in the task descriptions throughout this Agreement as well as in PRDE's Action Plans that will be completed and incorporated into this Agreement within thirty days of the execution of this Agreement. PRDE, Puerto Rico, and the Department will continuously reassess the action steps and timelines to determine if:
(1)the action steps fully meet the requirements of this Agreement,
(2)the action steps will move Puerto Rico and PRDE toward achieving required measurable objectives, and ultimately, full compliance within three years, and
(3)the timelines need to be modified within the time boundaries set forth in this Agreement. In addition to the areas currently covered in this Agreement, the Action Plans will also include a section covering continuing progress to be made in implementing the oversight systems for the Internal Audit and Audit Oversight Committee, and the internal audit function within PRDE. Updating the action steps and interim timelines into Action Plans for which Puerto Rico and PRDE will be accountable is a critical step for each task and sub-task. Once Puerto Rico and PRDE complete the development of Action Plans that address each task or sub-task, as specified in this Agreement, and the Department agrees to the revised Action Plans, the action steps and timelines in the Action Plans will become additional requirements of this Agreement and be subject to the reporting requirements and consequences for not meeting terms and conditions as set forth in this Agreement. The Department will assist by consulting with Puerto Rico and PRDE to develop reports or reporting formats that shall satisfy the reporting requirements as set forth in this Agreement. The Department will also assist Puerto Rico and PRDE, to the extent that resources are available, with the orientation and training of personnel and the provision of meaningful technical assistance. VI. Resolution of Outstanding Audit Findings As noted above, the Department designated PRDE a “high-risk grantee” under 34 CFR § 80.12 due to numerous serious recurring audit findings which uncovered deficiencies in PRDE's administration of Federally funded programs. This Compliance Agreement does not absolve PRDE's liability under any of these audit findings. The Department has been working closely with PRDE to address all of the issues uncovered in single audits and audits by the Department's Office of the Inspector General (ED OIG) conducted over the years 1994 through 2003. While steady progress is being made, resolution of all findings has not been completed. Thus, in addition to undertaking corrective action in response to these many monetary and non-monetary audit findings, under this Agreement, PRDE also agrees to continue working with the Department toward resolution of all audit findings issued under the single and ED OIG audits covering 1994 through 2003, under the Department's CAROI process. The Department and PRDE anticipate continuing to work cooperatively through a CAROI process so that these audit findings can be resolved no later than six months from the date of the execution of this Agreement. PRDE's continued work with the Department on resolving remaining audit issues is a critical element of compliance with this Agreement. However, in the event that the CAROI process does not appear to be progressing, in addition to other remedies the Department has including those under this Agreement, the Department retains the discretion to issue one or more program determination letters
(PDLs)to resolve one or more of these audit findings at any time. In the event that one or more PDLs are issued, PRDE may exercise its appeal rights, and such exercise would not be considered a breach of this agreement, and would not be inconsistent with the resolution of other findings through CAROI. VII. General Additional Measurable Objectives Puerto Rico, PRDE, and the Department agree that the following measurable objectives apply for each task and sub-task contained in this Agreement and in the Action Plans that are to be incorporated into this Agreement within thirty days, in addition to other measurable objectives specified throughout this Agreement. 1. Plans, other documents, and reports are timely, complete, accurate, and address the requirements set forth in this Agreement. 2. Action steps are implemented within the timeframes set forth in this Agreement. 3. Implementation of sub-tasks and action steps demonstrates progress towards achieving the outcomes or measurable objectives set forth in this Agreement. The remainder of this document provides task descriptions, action steps, and measurable objectives for:
(1)General Grants Management,
(2)Specific Program Management,
(3)Payroll, and
(4)Procurement and Property Management. By signing this Agreement and by the end of the three-year period covered by this Agreement, Puerto Rico and PRDE commit to taking the necessary actions to be in full compliance with the program requirements applicable to all Department grants for which Puerto Rico and PRDE expend funds and any other requirements set forth in this Agreement. Puerto Rico and PRDE commit to full implementation of improved grants management, payroll, and procurement and equipment inventory processes laid out in this Agreement and in greater detail in the PRDE Action Plans that will be incorporated by reference into this Agreement. VIII. Tasks This section on Tasks represents what the parties have generally agreed to at the time of execution of this Agreement. Some of the subtasks and steps set forth below may be modified as the parties agree to the Action Plans in their final form within thirty days. Appropriate modifications to this section will be made by mutual consent of the parties once the Action Plans are finally agreed to. Task 1.0: Improving PRDE General Grants Management Overall Task Description Because the stated purpose of this Agreement is to improve education for the students of Puerto Rico, it is critical to successfully meeting the terms of this Agreement that Puerto Rico and PRDE use the first year of the next three-year period to develop and refine long-term goals, assess the current status of each program receiving Federal assistance, and design coherent plans to bridge the gap between the current status of education in Puerto Rico and its goals of improving education and fully complying with all Federal program requirements. As set forth in Section I above, this General Grants Management Task applies to the administration of all Federal education programs administered by PRDE. Effective grants management includes the development of effective:
(1)Pre-award planning processes,
(2)grant application, evaluation, and approval processes,
(3)baseline assessments of current PRDE practices as compared with applicable Federal requirements,
(4)plans for interagency coordination among relevant Puerto Rico agencies, such as PRDE, Hacienda, the Office of Federal Affairs (OFA), and the Puerto Rico Department of Health (PRDH),
(5)restructured budget processes ensuring that all agencies and programs receiving Federal awards will meet stated goals,
(6)measurable objectives to determine if the planned grants management improvements are having the intended effect, and
(7)options for further modification if implementing the plan is not having the intended effect. The new grants management process implemented by Puerto Rico and PRDE will take into account and adhere to Federal requirements for each program, as well as other applicable accounting and professional standards. In addition, the planning process should include citizen and/or customer input and feedback; input is a vital part of the process to set goals, and feedback is equally significant in assessing results. A critically important aspect of the planning and design process is that it is fully integrated as the foundation for other program-related decisions about budgets, financial management, personnel requirements, and other resource needs. The Department will continue to provide technical assistance, as appropriate, including referrals to successful jurisdictions for guidance. Puerto Rico and PRDE will seek the assistance of expert consultants and other grantees to provide hands-on guidance in improving its grants management process. Reasonable and necessary expenses for this assistance will be considered allowable costs chargeable to a Department grant provided an approvable application is received in a timely manner. Sub-Task 1.1: Pre-Award Planning Process Goal: To ensure that PRDE application, evaluation and approval processes allow for the timely approval of work plans so that implementation of Federally funded programs can commence upon receipt of grant award notifications, i.e., in July or August of each year. The following step will help achieve the goal: Create process to ensure that budget planning for all appropriate Federal programs is nearly complete by receipt of grant award notification by September 30, 2005. *Measurable Objectives for Sub-Task 1.1:* Short term: 80% of all applications for Federal funds in the OFA pilot program will have completed the planning process timely so that the approval process is completed by the time grant award notification is received (October 31, 2005). Mid term: 50% of all applications will have completed the planning process timely so that the approval process is completed by the time the grant award notification is received (October 31, 2006). Long term: 100% of all applications for Federal funds will have completed the planning process timely so that the approval process is completed by the time grant award notification is received (October 1, 2007). In addition, all applications for Federal funds will comply with all applicable requirements (October 25, 2007). Sub-Task 1.2: Application, Evaluation, and Approval Process External Application Goals: To submit applications to the Department for formula and discretionary grant funds in a timely manner in substantially approvable form. Internal Application Goals: To have an internal application process that is streamlined, is oriented to the needs of PRDE's internal applicants for funds, and provides useful information about the allowable uses of Federal funds. Evaluation and Approval Process Goals: To have an evaluation and approval process that is streamlined and rapid, and provides useful and timely feedback to PRDE internal applicants. The following steps will help achieve the goals: A. Review all applicable Federal requirements, B. Streamline and strengthen external application process, C. Streamline and strengthen internal application process for formula grant funds, D. Streamline and strengthen application process for discretionary grant programs (that require subgrants to be allocated by competition), E. Streamline and strengthen competitive proposal process for external contractors (refer to procurement plan), F. Ensure staff has necessary knowledge and expertise to implement revised application process, G. Create process to ensure proper documentation is maintained throughout the application process, H. Create streamlined evaluation and approval processes that support the proper use of Federal funds, and I. Ensure staff has necessary knowledge and expertise to implement revised evaluation and approval processes that are consistent with Federal requirements. *Measurable Objectives for Sub-Task 1.2:* External Application Process: By July 2006, improve and strengthen all applications that are submitted to the Department, utilizing a revised procedure consistent with the milestones contained in the grants management action plan. Internal Application, Evaluation, and Approval Processes: By January 2007, all applications for Federal funds are going through the new application, evaluation, and approval process, consistent with the planning process. Sub-Task 1.3: Interagency Process Goal: Ensure productive coordination between PRDE and other Puerto Rico agencies, such as Hacienda, OGP, PRDH, and OFA, to ensure that budget processes operate efficiently, in accordance with PRDE procedures, and in accordance with all applicable Federal requirements. *Measurable Objective for Sub-Task 1.3:* In accordance with current PRDE Special Conditions, to prepare an Action Plan to address this initiative and will submit it to the Department by February 15, 2005. Sub-Task 1.4: Budget Process Goal: Restructure the PRDE budget process so that all programs that receive Federal funds will have prepared a preliminary budget and received preliminary approval from PRDE's budget office prior to their receipt of a grant award notification. The following steps will help achieve the goal: A. Review all applicable Federal requirements, B. Create detailed map of the current budget process, including all forms and approvals necessary for Federal funds to be awarded and flow from PRDE to programs/entities, C. Streamline PRDE budget process, consistent with applicable Federal requirements, D. After budget process has been streamlined, prepare a written document describing uniform procedures that PRDE and subrecipients must follow in submission of budgets for approval by PRDE, and E. Ensure the obligation of Federal funds in a timely manner. *Measurable Objective for Sub-Task 1.4:* By July 2006, 100% of all programs that have received Federal funds will have prepared a preliminary budget according to all program requirements for 2005-2006 and received preliminary approval from the budget office prior to the receipt of a grant award notification. Sub-Task 1.5: Program Implementation Process Goal: To ensure that all PRDE staff responsible for program implementation and administration have the necessary knowledge, tools, and resources necessary for implementing and administering Federal programs consistent with all applicable Federal programmatic and fiscal requirements. The following steps will help achieve the goal: A. Identify specific technical assistance available from OFA to academic staff and other recipients of Federal funds, to ensure that Federal programs are implemented and Federal program funds are expended in a manner consistent with Federal requirements, B. Ensure that all staff responsible for the implementation of Federal programs at all levels is aware of and familiar with all applicable Federal programmatic requirements, C. Ensure that all staff responsible for the implementation of Federal programs at all levels is aware of and familiar with all applicable Federal requirements related to procurement with Federal funds, such as RFP requirements for contracts, competitive bidding requirements (which is discussed in greater detail below under Task 7.0, D. Create uniform documentation requirement/template for all staff responsible for implementing Federal programs, and E. Ensure that all staff responsible for implementing Federal programs fully understands Federal requirements on retention of documentation *Measurable Objectives for Sub-Task 1.5:* • By July 2005, there has been formalized and regularly scheduled staff training for non-OFA, PRDE staff for relevant central level employees who administer Federal funds, and • By July 2006, program specific and Federal grants management training will have been completed for 100% of Central Office PRDE staff responsible for implementing Federal programs. • Each year, there is a significant reduction in the number of sustainable audit findings contained in single audit reports. Sub-Task 1.6: Monitoring and Technical Assistance Process Goal: To ensure that weaknesses in Federal program administration are identified and remedied in a timely manner to significantly reduce audit findings. Goal: To ensure that all PRDE personnel who administer Federal funds have access to high-quality technical assistance and training that responds to the needs of PRDE. The following steps will help achieve the goals: A. Establish a formal, unified monitoring process for all Federal programs administered by OFA, B. Create consistent monitoring tools that identify specific programmatic requirements and align programmatic and fiscal monitoring, and C. Analyze and identify audit findings that are repetitive across programs and ensure that additional monitoring is performed for these programs. 1. Based on recent findings, conduct additional monitoring and intensive technical assistance for Migrant Education Program (MEP): —Formalize process for maintaining required documentation to support the eligibility of students participating in the program. Ensure that formalized process includes all documents required under the statute, —Train program directors, regional directors, and other appropriate migrant staff on revised documentation maintenance requirements, —Conduct additional staff training for all relevant MEP personnel on specific eligibility requirements of migrant program, such as the definition of a qualifying move, agricultural or fishing activity, Principal Means of Livelihood (PMOL), etc. to ensure the accuracy of the Certificates of Eligibility (COE), and —Conduct additional staff training on specific provision of services requirements, including, but not limited to: • Priority for services, • How MEP students should be served in schoolwide programs, • Service to private school students, and • Fiscal requirements. —Consistent with monitoring plan, monitor revised documentation process and other migrant program requirements, deliver immediate technical assistance if needed, and —Review manual clarifying eligibility requirements of the migrant program. If necessary, revise manual. 2. Based on recent findings, conduct additional monitoring and intensive technical assistance for the Even Start Program: —Formalize process for maintaining required documentation to support the eligibility of families participating in the program. Ensure that the formalized process includes all documents required under the statute, —Train program directors, Even Start partners and other appropriate staff on revised documentation maintenance requirements, —Develop formal procedure to ensure matching requirements are met or appropriately waived by PRDE consistent with the statutory requirements, and —Develop formal monitoring process, consistent with statutory requirements, to measure whether there is sufficient progress and indicators of program quality by Even Start subrecipients. D. Schedule integrated monitoring visits according to identified needs, E. Train employees who will be conducting monitoring visits, F. Improve access to information about monitoring process for PRDE programs/offices that will be monitored, G. Develop a Master Technical Assistance Plan for PRDE programs in accordance with results from monitoring process, H. Create links between the Department's website, other educational websites and PRDE's website, I. Develop a plan to properly document PRDE technical assistance, J. Train employees who will be giving technical assistance, and K. Ensure that any weaknesses or instances of non-compliance are identified and corrected in a timely manner. *Measurable Objectives for Sub-Task 1.6:* • By April 2005—A master monitoring plan will be created, based on past findings, targeting high need programs first, including MEP and Even Start, • By August 2005—Uniform monitoring instruments will be created for each Federal program and program/fiscal monitors will use these instruments for their monitoring activities, • By July 2006—Regular monitoring by appropriate staff will be fully implemented, • By July 2006—Regular, high-quality technical assistance will be provided by PRDE to PRDE staff regarding Federal requirements. Technical assistance will be provided prior to the delivery of Federal program services by PRDE personnel and will promptly respond to any weaknesses discovered in the monitoring process, and Each year, there is a significant reduction in the number of sustainable audit findings contained in single audit reports, particularly in the number of recurring audit findings. Sub-Task 1.7: Reporting Goal: By July 2005, PRDE will ensure that all reports submitted to the Department are timely and accurate. The following steps will help achieve the goal: A. Compose Master List of all performance and financial reports due to the Department under applicable requirements, and B. Identify PRDE staff responsible for completing and filing all required reports. *Measurable Objective for Sub-Task 1.7:* By July 2005, PRDE will ensure that all reports submitted to the Department are timely and accurate. Sub-Task 1.8: Private Schools and Equitable Services Goal: PRDE is in compliance with all Federal requirements applicable to private schools, including the requirements for providing equitable services to private school students. The following step will help achieve the goal: Compose a Master List of all Federal programs that contain requirements regarding participation by private school students, including equitable services requirements, and provide appropriate training on these requirements to appropriate PRDE personnel. *Measurable Objectives for Sub-Task 1.8:* • By July 2005, PRDE has trained all relevant employees on the equitable services requirements in the Federal programs administered or monitored by those employees, and • By July 2006, uniform processes regarding equitable services requirements will be fully implemented. Sub-Task 1.9: Schoolwide Programs Goal: PRDE complies with all Schoolwide program requirements The following steps will help achieve the goal: A. Create a work group to review the schoolwide program process and make recommendations for, and implement, improvements in the process. B. Improvements will include identifying Master List of all schools eligible for schoolwide program status and ensuring that all schools deemed eligible and included in the Master List have the required elements in their schoolwide plan, and ensuring that fiscal and programmatic requirements of schoolwide schools are understood by relevant staff. *Measurable Objectives for Sub-Task 1.9:* • By July 2005, PRDE has trained all relevant employees on requirements pertaining to schoolwide programs, and • By December 2006, uniform processes regarding schoolwide programs will be fully implemented. Sub-Task 1.10: Implementation of Reorganization Plan Goal: PRDE's OFA will implement new processes and a new organizational structure to ensure the efficient and effective administration of all the Federal funds it administers and to ensure the administration of those funds in compliance with all applicable Federal requirements. *Measurable Objectives for Sub-Task 1.10:* • By December 2004, a new human resource plan will be implemented, and • By July 2006, most new processes contained in this grants management plan will be operational, leading to a substantial reduction in audit findings. Sub-Task 1.11: Implementation of Puerto Rico's Integrated Financial Administration System (PRIFAS) Grants Management and Project Modules Goal: PRDE's OFA will implement the PRIFAS grants management and project module to improve PRDE's control over the timely obligation of Federal funds and bring PRDE into compliance with Federal requirements applicable to the period of availability of funds, cash management, and proper liquidation of obligations. *Measurable Objective for Sub-Task 1.11:* By January 2005, the new PRIFAS grants management and project module will be operational. Sub-Task 1.12: Puerto Rico as an SEA/LEA Goal: PRDE will work with the Department to identify PRDE's needs for technical assistance on the issue of best practices in grants administration by a single SEA and LEA by February 15, 2005. Task 2.0: Improving PRDE Grants Management—Community Schools Administration Sub-Task 2.1: Improving Accounting Records at the Community Schools Administration: Goal: Develop comprehensive plan to resolve accounting issues described in Single Audit findings. The following steps will help achieve the goal: A. Map out community school administration responsibilities, and B. Streamline the application/approval/distribution process to schools. *Measurable Objective for Sub-Task 2.1:* By February 15, 2005, in accordance with the special conditions, PRDE will complete a comprehensive plan to strengthen the accounting records of the Community Schools Administration and submit it to the Department. Sub-Task 2.2: Improving Cash Management at the Community Schools Administration Goal: Develop a comprehensive plan to resolve cash management issues at the public school level identified and described in Single Audit findings. *Measurable Objective for Sub-Task 2.2:* By February 15, 2005, in accordance with the special conditions, PRDE will complete a comprehensive plan to strengthen cash management at the public school level and submit it to the Department. Sub-Task 2.3: Implementation of PRIFAS Grants Management and Project Modules Goal: PRDE's Community Schools Administration will implement the PRIFAS grants management module and project module to improve control over the timely obligation of funds, comply with period of availability requirements, cash management, and proper liquidation of obligations. *Measurable Objective for Sub-Task 2.3:* By July 2005, the new PRIFAS grants management and project modules will be in operation. Task 3.0: Improving PRDE Grants Management—Vocational Education Program Sub-Task 3.1: Improving the Application Process Goal: Compliance with the Federal vocational education requirement for a State Board to serve as the eligible agency, and related conditions in PRDE's Perkins III grant. The following steps will help achieve the goal: A. Establish the new State Board for Vocational and Technical Education within PRDE (completed—EO 2004-29), B. Nominate members of the new State Board (completed), C. Create a draft of the new State Board Rule, D. Create a chart of the new governance structure of the State Board, E. Adopt the State Plan for Vocational Education submitted by PRDE, including the request to extend and revise the plan, the budget for year six, and the agreed-upon adjusted performance levels for year six, F. Ratify past actions of the Puerto Rico Secretary of Education and the PRDE, G. Adopt any necessary revision to ensure conformity with the State Plan, H. Submit certifications required to be included in the State Plan, I. Complete the document that delegates to PRDE the authority to receive, hold, and disburse funds awarded under the State Plan, and J. Create a detailed map of the current application process both for PRDE applications to the Department and PRDE application requirements for Department funds within PRDE. Measurable Objective for Sub-Task 3.1: Short Term—30% of all internal applications work plans for Federal funds will be almost operational by the time Grant Award Notification is received in July 2005. Task 4.0: Improving PRDE Grants Management—Adult Education Program Sub-Task 4.1: Monitoring and Technical Assistance Process Goal: Monitor and administer the Adult Education program effectively and in compliance with all applicable requirements. The following steps will help achieve the goal: A. Create detailed map of current monitoring process, B. Identify criteria to be used in identifying monitoring needs, C. Align programmatic monitoring activities with fiscal monitoring activities D. Rank program projects by monitoring needs, E. Develop a master monitoring schedule that coordinates the monitoring of adult education projects, F. Train employees who will be conducting monitoring visits, G. Improve communication between adult education and all programs, H. Create a detailed map of the current technical assistance process, I. Identify technical assistance resources for developing and completing applications available from the Department, and J. Develop a master technical assistance plan for the Adult Education Program. Task 5.0: PRDE Grants Management—Special Education Program Sub-Task 5.1: Monitoring and Corrective Action Process Goal: Ensure non-compliance identified through monitoring is corrected within one year of its identification. The following steps will help achieve the goal: A. Ensure personnel responsible for the implementation of IDEA requirements fully understand those requirements and, where non-compliance is identified, understand and implement the corrective actions needed to ensure correction of all non-compliance within a reasonable period of time not to exceed one year from identification, B. Provide training and technical assistance in a comprehensive and systematic manner to staff in districts or sites where non-compliance is identified to ensure the correction of all non-compliance within a reasonable period of time not to exceed one year from identification, C. Provide technical assistance on the development and implementation of corrective action plans to ensure that they are developed and implemented in a manner that addresses all areas of identified non-compliance, D. Provide technical assistance and feedback to district and other personnel to ensure that the corrective action plans submitted to PRDE are designed to correct all areas of non-compliance within a reasonable amount of time, not to exceed one year from the identification of the non-compliance, E. Request and review progress reports from regions, districts and other sites that are implementing corrective action plans, F. Ensure follow-up activities in regions, districts and other sites that have corrective action plans to ensure that the identified non-compliance has been addressed and is not recurring, G. All monitoring findings will be corrected within one year of identification, H. List any sanctions imposed on a district or school for failure to come into compliance with the IDEA requirements as agreed upon in the corrective action plan, and I. If PRDE, or any district or school failed to achieve compliance and no additional actions, including sanctions were identified, required, or imposed, PRDE must explain the basis for not taking additional actions. Measurable Objective for Sub-Task 5.1: • All monitoring findings are corrected under the new monitoring system within a reasonable period of time, not to exceed one year from identification of the monitoring finding, • Correction of findings from 2002-2003 and 2003-2004 school years is reported to the Department's Office of Special Education
(OSEP)no later than July 1, 2005. Thereafter, each quarterly report, as part of this Compliance Agreement, includes documentation of correction of monitoring findings within a reasonable period of time, not to exceed one year from identification, • Develop and implement an effective set of procedures for sanctioning persistent long-standing non-compliance, • Analyze existing procedures, • Amend existing procedures, as necessary, and • Apply new sanction procedures where required to ensure correction, by January 1, 2006. Sub-Task 5.2: Ensuring Accurate Child Count Reports Goal: Ensure Child Count Reports submitted to the Department are accurate. The following steps will help achieve the goal: A. Ensure that the staff responsible for the child count reports understand the requirements, processes and timelines to collect the information and report the data, B. Provide training and technical assistance regarding the collection of the Child Count data, C. Provide training and technical assistance regarding Child Count data entry, D. Ensure that the Child Count data collected and reported is valid, accurate and timely, E. Develop validation process though sample comparison and analysis at school, school district and regional level that ensures that all students receiving special education and related services are identified and included in the child count data reports, F. PRDE will continue to run side-by-side comparisons of the paper and electronic process to determine and verify the accuracy of the data, and G. By December 1, 2005, PRDE will ensure that the child count report reflects a complete and accurate count of all children served. *Measurable Objective for Sub-Task 5.2:* By 2005, PRDE will ensure that the Child Count report reflects an accurate count of all children served. Sub-Task 5.3: Implementation of PRIFAS Grants Management and Project Modules Goal: PRDE's Office of Special Education will implement the PRIFAS grants management and project module to improve control over the timely obligation of funds, and comply with requirements concerning period of availability, cash management, and proper liquidation of obligations. The following steps will help achieve the goal: A. Define new processes and procedures for use of PRIFAS module by program managers, B. Train users on use of PRIFAS, C. Train users on proper fiscal grants management issues (liquidations of obligations, timely obligation, etc.) to ensure effective use of PRIFAS, and D. Implement use of PRIFAS grants management and project modules. *Measurable Objective for Sub-Task 5.3:* By January 2005, the new PRIFAS grants management and project modules will be operational as to PRDE's Office of Special Education. Task 6.0: Improving Payroll System Overall Task Description It is critical to successfully meeting the terms of this Agreement that Puerto Rico and PRDE use the next three years to develop adequate controls over a payroll system capable of ensuring that all employees on the payroll system are authorized and that all payroll charges made to a Federal account are allocable to that Federal account. The system developed under this Agreement must include a formal process for certifying all employees' work and must reflect actual time and effort by each employee whose salary is charged directly to a Federal account. The payroll system must be updated in a timely fashion so as to reflect any changes in funding source and must provide for the maintenance of appropriate accounting records that can be made available in the event of an audit. PRDE must be able to account for salary payments to employees who split their time between Federal and other programs, or among more than one Federal program. Any indirect payroll charges to Federal accounts must be allocable to that program and must otherwise be appropriate and consistent with Federal requirements. Additionally, the salaries of employees who work under more than one Federal program must be properly allocated among those programs, in accordance with accurate time distribution records and in compliance with Federal time distribution requirements. The Department will assess progress in meeting the terms of this Agreement under the “Payroll” task by the systemic approaches and degree of integration that Puerto Rico and PRDE bring to designing and implementing solutions to longstanding problems in the payroll area. Sub-Task 6.1: Improving Employee Hiring and Transfer Processes Goal: To ensure that employees newly hired and employees transferred ( *i.e.* , due to demotion, assignment changes, etc.) are properly captured in the PRIFAS system. The following steps will help achieve the goal: A. Electronic register for special recruitment—To accelerate document flow and to avoid loss of documents by eliminating or reducing physical document flow from users (regions and central office) to Payroll Office (changing from a paper to an electronic process will increase efficiency and eliminate loss or misplaced records), and B. Letters and reports for transitory and probation position expiration—To improve reporting to employees the expiration of transitory and probation periods so as to avoid having to keep them as regular employees. *Measurable Objective for Sub-Task 6.1:* By January 2005, all human resources “events,” such as new employees hired, transferred, etc., will be accurately reflected in the STAFF system (the payroll system used by PRDE). Sub-Task 6.2: Time Distribution Goal: Ensure proper allocation of Federal funds by PRDE, based on employees' time and effort, consistent with applicable Federal requirements. The following steps will help achieve the goal: A. Data entry without GL-200—To allow Time Distribution office to enter effort reported through time sheets without having received the corresponding payroll data from Hacienda, so as to accelerate the entry of effort allocation data, B. Data entry productivity report (by user)—To report on the amount of data entry performed by users so as to allow Time Distribution management to review the productivity of each employee regarding data entry tasks, C. Time sheet/STAFF discrepancy report—To report on data changes made by Time Distribution office based on Time sheets, so that these corrections can be submitted to Human Resources for entry into the Human Resources system, D. Missing localization code report—To modify several reports to include the description of the location of the employees, E. Effort allocation report—To provide an analysis report that shows the employee efforts that were applied to federally funded projects by those employees that were paid from state funds, and vice versa, and F. Massive allocation of effort data (school-wide)—To facilitate the data entry of employee effort by allowing this effort to be entered at different levels, *i.e.* , for a specific employee, for all employees in a school, for all employees in a group of schools, etc. *Measurable Objective for Sub-Task 6.2:* By December 2005, PRDE will properly record time distribution on a quarterly basis for all employees that distribute their time among Federal programs or among State and Federal programs. Sub-Task 6.3: Semimonthly Payroll Process Goal: Ensure that PRDE pays employees from the appropriate Federal account(s) each time salary payments are made. The following steps will help achieve the goal: A. Electronic DE-15/409 (pipeline)—To accelerate document flow and to avoid loss of documents by eliminating or reducing physical document flow from users (regions and central office) to Payroll Office. B. Position management—To allow users to make changes to positions with minimal human intervention and following a controlled process. For example, to activate, deactivate, and change locations for a given group of positions. C. Additional pay management—To improve controls on additional pay by ensuring that additional pay to positions, instead of employees. When an employee record is entered, its corresponding additional pay (if any) will be taken from its position record. When an employee moves into a different position, its additional pay will not move with the employee. A history will be maintained of all changes to the differential amount associated with each position. D. Automatic generation of retroactive payments (pipeline)—To reduce human intervention by automatically calculating the corresponding retroactive payment when an employee already hired is entered into Payroll. Usually the employee is entered into the Payroll system sometime after he/she has started to work, therefore a retroactive payment has to be made. E. New module for massive payments/deductions—To facilitate generating payroll transactions by creating a module to allow users to manage all of the steps involved in handling special generic payroll transactions. An example of where this module might be used would be in the creation of fixed amount or fixed percentage salary increases for certain types of personnel. F. Code table maintenance—To facilitate table maintenance in the Human Resources system through a more friendly interface. G. Account number/position number validation—To make sure only federal account numbers are assigned to federally funded positions and local account numbers are assigned to locally funded positions. H. History of account number changes—To keep track of changes made by Time Distribution Office to correct account numbers in Time Distribution data. A report will be produced to inform Positions Department of these changes, so that they can make them in STAFF. I. Report on payroll payments with accounts that have expired, or are about to expire (0/30/60/90 aging report)—To provide the Positions Department with information on accounts already, or soon to be, expired, so that actions are taken about the employees being paid by these accounts. J. Global payment financial impact report (all global payments [for example, vacation excess] with an effective date older than the last account number change are to be reported so as to allow the finance department to make any necessary adjustments)—To report on all global payments [for example, vacation excess] with an effective date older than the last account number changes, so as to allow the Finance Department to make any necessary adjustments. K. Position authorization code control—To establish a standard set of rules so that when certain Human Resources actions occur (terminations, suspensions, reassignments to another position, etc.) the system can evaluate that position and determine its proper authorization code authorized for hiring, frozen, etc. L. Automatic generation of transactions by STAFF (pipeline)—To avoid manual entry of Payroll transactions, by generating them automatically when the Human Resources transactions are entered. M. Automatic generation of entries to payment card —To avoid manual entry of these transactions into the Payroll payment card, by generating them automatically when Payroll transactions are generated. N. Automatic production of RHUM transaction files (partially belonging to pipeline)—To integrate all Payroll transactions into a single file and to produce it through a completely automated process. O. Error correction—To provide users with a report on rejected transactions, together with the reason for the rejection, so that these transactions can be corrected. Most errors should be corrected in the same payroll run. P. Transaction resubmission—To give users the opportunity to resubmit for processing in the same payroll the rejected transactions, after they have been corrected. Most corrections should be submitted by the same payroll run. Q. Inclusion of rejections in item balancing and reconciliation—To provide users with control totals regarding the rejected transactions so that they can account for all transactions submitted to payroll. Transactions accepted plus transactions rejected must equal total transactions. R. Consolidation of error files—To facilitate the correction of rejected transactions by consolidating all error messages in the same transaction file sent to Hacienda. S. Readable error messages—To facilitate the correction of rejected transactions by rephrasing all error messages to make them more understandable to users. T. RHUM/STAFF discrepancy reports (account numbers, gross salary, employee location)—To identify data discrepancies between Hacienda Payroll system and PRDE Human Resources system. For example, discrepancies in account number, employee location, employee salary, etc. U. Discrepancy management module—To support users in the process of correcting discrepancies. For example, to keep track of all discrepancies pending correction, all discrepancies already corrected, etc. Discrepancies must be corrected on a periodic basis, as supported by the resources available. V. Missing employee reports (STAFF not RHUM, RHUM not STAFF)—To identify employees in Hacienda's Payroll system that are not in PRDE's Human Resources system, and vice-versa. W. Item reconciliation (Payroll/RHUM)—To make sure all transactions are properly accounted for by calculating and balancing control totals. For example, transactions sent to Hacienda must be equal to transactions accepted plus transactions rejected. This balancing must be done for each payroll run. X. Limit test for salary (by category)—To reduce data entry errors by establishing a limit test for salaries, both when entering salaries for positions and for employees. Y. Limit test for global payments—To reduce data entry errors by establishing a limit test for global payments made to employees, and Z. Pay period control. *Measurable Objective for Sub-Task 6.3:* By June 2005, to reduce the number of payroll errors, assure prompt correction of any payroll errors, and bring the payroll system into full compliance with Federal payroll accountability requirements. Sub-Task 6.4: Interagency Process Goal: Ensure productive coordination with other PR agencies, such as Hacienda, to ensure PRDE procurement process runs smoothly and according to established PRDE procedures that conform to applicable Federal procurement law and standards. PRDE will prepare an Action Plan addressing this initiative and will submit it to the Department by February 15, 2005, in accordance with PRDE Special Conditions currently in effect. *Measurable Objective for Sub-Task 6.4:* PRDE will develop an Action Plan to address issues of improved interagency coordination in Puerto Rico, and will submit it to the Department by February 15, 2005, the due date established in the PRDE Special Conditions currently in effect. Sub-Task 6.5: Draw Downs of Federal Funds Goal: Ensure Federal funds are properly drawn down by PRDE from the appropriate Federal account and ensure that Federal funds are properly obligated and liquidated in accordance with Federal cash management regulations. *Measurable Objective for Sub-Task 6.5:* In accordance with PRDE Special Conditions currently in effect, PRDE will prepare an Action Plan addressing this sub-task and submit it to the Department by February 15, 2005. Task 7.0: Procurement and Equipment Inventory Overall Task Description It is critical to successfully meeting the terms of this Agreement that Puerto Rico and PRDE use the next three years to develop adequate controls over its procurement and equipment inventory systems. PRDE must finalize its revised contracting and procurement procedures ensuring compliance with all applicable Federal requirements. Once PRDE has developed contracting and procurement procedures that comply with all applicable Federal requirements, PRDE must adopt and begin implementing those procedures so that all contracts are awarded, and all equipment and supplies are procured, through PRDE's revised procedures, with the exception of those cases that meet specific limited exceptions. To fully comply with this Agreement, PRDE must also ensure that any non-competitive procurement transactions it undertakes comply with all applicable Federal requirements and cost principles, that any sole source contracts awarded by PRDE are only awarded in accordance with Federal requirements pertaining to sole source contracts, that procurement is undertaken and contracts awarded without conflict of interest, and that all required documentation as to every transaction and contract is properly maintained by PRDE. Through this Compliance Agreement, Puerto Rico and PRDE's manner of managing equipment inventory will be such that items purchased with Federal program funds can be tracked, distributed in a timely manner, allocable to the Federal program to which they were charged, and used for the benefit of Puerto Rico's students. The equipment inventory system will comply with Federal regulations, to include tagging and tracking of inventory and prompt delivery of property purchased with Federal funds to the appropriate location, so that items may be used for the purposes of the program under which they were purchased. Puerto Rico and PRDE's inventory policy will include an established procedure for replacement or payback of any items in the inventory that cannot be located, consistent with Federal regulations. Ultimately, PRDE's inventory management system will reflect when items are ordered, when ordered items arrive, when items are logged into the system, and when they are delivered to the intended location. In addition, Puerto Rico and PRDE will ensure that inappropriate use of equipment (for example, vehicles or computers) is penalized and that the Department programs are reimbursed, when appropriate. Sub-Task 7.1: Vendor and Selection Process Goal: Ensure contracts supported with Federal funds are awarded competitively in a manner consistent with applicable Federal requirements and Puerto Rico law. The following steps will help achieve the goal: A. Contracts for Goods and Nonprofessional Services: 1. Complete revision of Puerto Rico and PRDE's procedures for procurement of goods and nonprofessional services, ensuring that such procedures are consistent with Federal law and procurement standards including 34 CFR 80.36, and with Puerto Rico law, 2. Provide the Department with an English version of PRDE's final procurement procedures (English translation of draft procedures has already been provided), 3. Complete training of appropriate staff on revised approved procedures, applicable Federal requirements, and internal controls, 4. Monitor procurement process, to ensure that all contracts are awarded in accordance with PRDE's approved revised procedures, and 5. Ensure staffing is at appropriate levels to manage the procurement process, in accordance with revised approved procedures. B. Contracts for Professional Services: 1. Complete new guidance for the procurement of professional services with Federal program funds, based on models such as “best practices” from other States, the Federal Acquisition Regulations (FAR), 2. Ensure compliance with applicable Federal law, including the standards contained in 34 CFR 80.36, and Puerto Rico law, 3. Ensure that its procurement procedures conform to the new guidance, as required by Federal regulations and Puerto Rico law, 4. Complete training of appropriate staff on new guidance, Federal requirements and internal controls, 5. Monitor procurement process to ensure all Federally-funded contracts are awarded in a manner consistent with PRDE's new final procedures, and 6. Ensure staffing is at appropriate levels to manage the procurement process. C. Implement plan for increasing the number of vendors available to do business with PRDE: 1. Develop a “How To Do Business with PRDE” section of the PRDE Web site. The instructions will be posted in English and Spanish and will explain how vendors can register with Puerto Rico or PRDE, what documents they need to provide, and how the procurement process works, and 2. Complete revision of the existing PRDE vendor registry to determine areas where too few vendors are registered. Complete development of an outreach to vendors to encourage vendors in those areas to register. *Measurable Objectives for Sub-Task 7.1:* • By February 2005, PRDE will have final revised procurement procedures that are in compliance with applicable Federal law and standards, including those in 34 CFR 80.36, and with Puerto Rico law, • By February 2005, PRDE will provide the Department with an official English translation of its final revised procurement procedures, and • By February 2006, 100% of all contracts supported with Federal funds will be awarded in accordance with final revised procedures developed by PRDE to ensure compliance with Federal procurement law and standards. Sub-Task 7.2: The Contracting Process Goal: Ensure the process of selecting a vendor, entering into a contract and issuing a purchase order permits:
(1)the timely obligation of Federal funds,
(2)the timely delivery of goods and services purchased with Federal funds, and
(3)the timely payment of a vendor with Federal funds. The following steps will help achieve the goal: A. Short-Term Improvements: 1. Streamline the current contracting process, 2. Ensure that staff has the necessary expertise to process requisitions, confirm budget resources, select a vendor and issue a purchase order, and 3. Develop a process to ensure retention and safeguarding of all documentation supporting each transaction with Federal funds in a specific location, and ensure that such documentation can be made available for review. B. Long-Term Improvements: 1. Ensure that staff has the necessary capacity to process requisitions, confirm budget resources, select a vendor and issue a purchase order, and 2. Further streamline the contracting process. *Measurable Objectives for Sub-Task 7.2:* • Short-term—By July 2005, 50% of all contracts are processed through the streamlined process whereby goods and services are timely delivered once a need is identified, and • Long-term—By January 2006, 100% of all contracts are processed through the streamlined process. Sub-Task 7.3: Contract Execution and Management Process Goal: To ensure the timely and appropriate delivery of goods and services. The following steps will help achieve the goal: A. Short-Term Improvements: 1. Streamline the current contracting process, 2. Ensure that staff has the necessary expertise to track payments, determine if goods and services have been delivered, and follow up with vendors, and 3. Develop a process to ensure retention and safeguarding of all documentation relating to each contract supported with Federal funds in a central location, and ensure that such documentation can be made available for review. B. Mid-Term Improvements: 1. Ensure staff has all necessary capacity to track payments, determine if goods or services have been delivered and follow-up with vendors, and 2. Further streamline the contracting process. C. Long-Term Improvements: Implement technological improvements and capabilities to automate the contract management process (which relates to the inventory management initiative below). *Measurable Objectives for Sub-Task 7.3:* • For offices using PRIFAS: Short-Term—Identify 50% of goods and services not delivered and take appropriate action within 10 days of the agreed-upon delivery date, and Long-Term—Identify 100% of failed delivery and take appropriate action within 10 days of agreed-upon delivery date. • For office not using PRIFAS: Short-Term—Identify 30% of goods and services not delivered and take appropriate action within 10 days of the agreed-upon delivery date, and Long-Term—Identify 100% of failed delivery and take appropriate action within a reasonable period of agreed-upon delivery date. Sub-Task 7.4: Inventory Management Goal: Ensure that all property acquired with Federal funds is tracked, accounted for, and maintained in accordance with Federal and Puerto Rico law. The following steps will help achieve the goal: A. Develop a system for tracking property that records the following with regard to the property purchased: a description; a serial or identification number; the source; the holder of title; the acquisition date; the cost; the percentage of Federal participation in the cost; the current location; the use and condition; and any information regarding its disposal, including the disposal date or date of sale, B. Develop a plan for incorporating historical assets into the asset management system, and C. Develop an interim plan for accounting for assets. *Measurable Objectives for Sub-Task 7.4:* • Short-Term—Record 60% of newly acquired property using manual logs and 40% with asset management system. • Long-Term—Record 100% of newly acquired property using an asset management system. Sub-Task 7.5: Payment Process—Verifying invoices by matching purchase orders, liquidating obligations, and recording payments Goal: Ensure the process of paying a vendor permits:
(1)the timely liquidation of obligations; and
(2)the timely delivery of goods and services. In accordance with PRDE Special Conditions currently in effect, PRDE may expand this initiative to address additional areas of concern and resubmit to the Department by February 15, 2005. The following steps will help achieve the goal: A. Short-Term Improvements to Payment Process: 1. Streamline the current process, 2. Ensure staff has the necessary expertise to process invoices and issue checks, and 3. Develop a process to retain and safeguard all necessary documentation in a specific location and make documentation accessible for review. B. Mid-Term Improvements: 1. Ensure staff has necessary capacity to process invoices and issue checks, and 2. Further streamline the payment process. C. Long-Term Improvements: 1. Implement technological improvements to automate the payment process, and 2. Redesign the payment process by creating a cohesive “work unit” to make more efficient use of PRDE resources. D. Payment of currently due invoices: 1. Identify any invoices currently due, and 2. Complete processing of payments using pilot streamlined procedures. *Measurable Objectives for Sub-Task 7.5:* • Short-Term—By January 2005, 50% of all invoices are paid through the streamlined process, and • Long-Term—By December 2006, 100% of all contracts are paid through the streamlined process. Sub-Task 7.6: Interagency Process Goal: Ensure productive coordination with other Puerto Rico agencies, such as Hacienda, to make certain procurement process runs appropriately and according to established PRDE procedures. The following step will help achieve the goal: In accordance with the PRDE Special Conditions currently in effect, PRDE will prepare an Action Plan addressing this initiative and will submit that Action Plan to the Department by February 15, 2005. *Measurable Objective for Sub-Task 7.6:* Development and submission to the Department of comprehensive plan to address the interagency process by February 15, 2005. Sub-Task 7.7: Proper Draw Downs of Federal Funds Goal: Ensure that Federal funds are properly drawn down from the appropriate account to make certain that expenditures are properly obligated, liquidated, and charged in accordance with applicable Federal cash management statutes and regulations. In accordance with the PRDE Special Conditions currently in effect, PRDE will prepare an Action Plan addressing this initiative and will submit that action plan to the Department by February 15, 2005. *Measurable Objectives for Sub-Task 7.7:* Development and submission to the Department of an Action Plan to address the interagency process by February 15, 2005. The parties to this Compliance Agreement, the U.S. Department of Education, the Puerto Rico Department of Education, and the Commonwealth of Puerto Rico, agree to faithfully carry out the terms of this Agreement, as set forth above. Effective Date and Modification of Agreement: This Compliance Agreement will take effect upon execution by all the parties and may be modified or amended only by mutual written agreement of all the parties hereto. For the Commonwealth of Puerto Rico: Dated: October 25, 2004. _______/s/_______ Sila María Calderón *Governor* For the Puerto Rico Department of Education: Dated: October 25, 2004. _______/s/_______ César Rey Hernández *Puerto Rico Secretary of Education* For the U.S. Department of Education: Dated: October 25, 2004. _______/s/_______ Rod Paige *U.S. Secretary of Education* [FR Doc. E7-20842 Filed 10-22-07; 8:45 am] BILLING CODE 4000-01-P 72 204 Tuesday, October 23, 2007 Notices Part VI Department of Education Compliance Agreement; Notice DEPARTMENT OF EDUCATION Compliance Agreement AGENCY: Department of Education. ACTION: Notice of written findings, compliance agreement with the Virgin Islands, and subsequent actions. SUMMARY: This notice is being published in the **Federal Register** consistent with sections 457(b)(2) and
(d)of the General Education Provisions Act (GEPA). Section 457 of GEPA authorizes the U.S. Department of Education (the Department) to enter into a compliance agreement with a recipient that is failing to comply substantially with Federal program requirements and for whom the Department determines that full compliance is not feasible until a future date. Section 457(b)(2) requires the Department to publish written findings leading to a compliance agreement, with a copy of the compliance agreement, in the **Federal Register** . If a recipient fails to comply with the terms and conditions of a compliance agreement, the Secretary may take any action authorized by law with respect to the recipient. On September 23, 2002, the Department entered into a compliance agreement (Agreement) with the U.S. Virgin Islands
(VI)because the Department determined from all available information that the VI would not be able to come into full compliance with applicable Federal regulations for the administration of Department programs until a future date. Notwithstanding the Agreement, and intensive and frequent technical assistance by the Department, when the term of the Agreement ended on September 23, 2005, the VI was substantially in non-compliance with Federal requirements. Therefore, the Department has imposed special conditions and has taken a number of other important measures in its continuing effort to bring the VI into full compliance with all Federal requirements pertaining to the administration of Department programs. Most notably, the special conditions currently in effect require the VI to procure, and maintain, the services of a third-party fiduciary agent to perform the financial management duties required under Federal regulations for all Department grants, which the VI accomplished beginning in August 2006. FOR FURTHER INFORMATION CONTACT: Mr. Phil Maestri, U.S. Department of Education, Office of the Secretary, 400 Maryland Avenue, SW., room 7E206, Washington, DC 20202-6132. Telephone:
(202)205-3511. If you use a telecommunications device for the deaf (TDD), you may call the Federal Relay Service
(FRS)at 1-800-877-8339. Individuals with disabilities may obtain this document in an alternative format ( *e.g.* , Braille, large print, audiotape, or computer diskette) on request to the contact person listed under FOR FURTHER INFORMATION CONTACT . SUPPLEMENTARY INFORMATION: The VI is an insular area that is authorized under 48 U.S.C. 1469a to consolidate formula grant funds allocated to it under various Federal education programs and use those funds for the purposes of one or more programs included in the consolidated grant. See also 34 CFR 76.125-76.137. Under that authority, the Virgin Islands Department of Education
(VIDE)has historically consolidated formula grant funds allocated to it under the Elementary and Secondary Education Act of 1965, as amended (ESEA), the Carl D. Perkins Career and Technical Education Act of 2006
(CTE)(formerly the Carl D. Perkins Vocational and Technical Education Act), and the Adult Education and Family Literacy Act (Adult Education) and used those funds to implement three programs: Title V, Part A (formerly Title VI) of the ESEA, CTE, and Adult Education. The VIDE also receives additional funding under the authority of a number of other Department programs. Additionally, VIDE and the Virgin Islands Department of Health
(VIDH)carry out programs under Parts B and C of the Individuals with Disabilities Education Act (IDEA); IDEA funds are not subject to the consolidation authority under 48 U.S.C. 1469a and 34 CFR 76.125-76.137. VIDH's IDEA Part C grant funds for fiscal years 2002 through 2007 are subject to special conditions to ensure fiscal accountability. Finally, the Virgin Islands Department of Human Services (VIDHS) also receives Department funds. Because of longstanding and recurring findings of fiscal and programmatic accountability deficiencies in the administration of Department programs by the VI and several of its departments (as discussed in detail in the following paragraphs), the Department has imposed special conditions, on a Department-wide basis, on all Department grants awarded to the VI. These Department-wide special conditions are different from the fiscal special conditions imposed separately on the IDEA Part C grant and from the programmatic special conditions imposed separately by various Department program offices upon individual grant awards. The need for these Department-wide special conditions stems from the VI's failure to meet the terms of the Agreement, which was executed on September 23, 2002, and expired on September 23, 2005, with the VI still in substantial non-compliance. The Department entered into the Agreement in 2002 because it had found serious and recurring fiscal and programmatic accountability deficiencies in the administration of Department programs by the VI, VIDE, and other agencies of the government of the VI dating back several years. Specifically, the Department had found deficiencies in key aspects of the VI's procurement process; program planning and implementation; and financial and property management, including, but not limited to, the VI's lack of appropriate record keeping to account for the use of Federal funds and its failure to obligate and draw down funds and liquidate obligations on a timely basis. The VI also had failed to submit timely and sufficient audits. As a result of these major problems, in September 1999, the Department designated the VI as a “high-risk grantee” under 34 CFR 80.12(a) and, consistent with that designation, imposed special conditions on a number of grant awards to the VI and its agencies. But, even after the imposition of these special conditions, the VI continued to have significant problems in administering Department grant programs, resulting in continued noncompliance with various programmatic and fiscal requirements applicable to those programs. In May 2001, officials from the Department met with VI officials to discuss the continuing deficiencies in the administration and implementation by the VI of the Department's programs. The parties reached an agreement on the wide-scale and significant corrective actions that the VI would have to make in order for the Department to continue to provide funds to VI agencies. It was at this time that the Department suggested that the VI and the Department enter into a compliance agreement, pursuant to section 454 of GEPA, to apply to all Department grants awarded to the VI. The purpose of the compliance agreement would be to bring the VI “into full compliance with the applicable requirements of the law as soon as feasible and not to excuse or remedy past violations of such requirements.” 1 20 U.S.C. 1234f(a). In order to enter into a compliance agreement with the VI, the Department had to determine, in written findings, that the VI would not be able to comply until a future date with the applicable program requirements and that a compliance agreement would be a viable means for bringing about such compliance. 1 Section 454 of GEPA, 20 U.S.C. 1234c, sets out the remedies available to the Department when it determines that a recipient “is failing to comply substantially with any requirement of law applicable” to the Federal program funds administered by this agency. Specifically, the Department is authorized to—
(1)Withhold funds;
(2)Obtain compliance through a cease and desist order;
(3)Enter into a compliance agreement with the recipient; or
(4)Take any other action authorized by law. In accordance with the requirements of section 457(b) of GEPA, 20 U.S.C 1234f(b), Department officials conducted public hearings in the VI in February 2002. Witnesses representing VIDE, students and parents, and other concerned organizations and individuals testified at these hearings on the question of whether the Department should grant VIDE's request to enter into a compliance agreement. The Department reviewed this testimony and all other relevant materials and concluded that, while the Department had been working closely with VIDE and with other VI agencies to address the major issues that the VI had been facing in administering Department grant programs, it was clear that the problems could not be corrected by the VI immediately and that the VI would need more than one year to correct them. Therefore, in order to remedy that condition, the Department and the VI entered into the Agreement, a comprehensive compliance agreement with a three-year term. The purpose of the Agreement, which incorporated the Department's written findings, was to allow the VI to develop integrated and systemic solutions to problems in managing its Department funds and programs. Under the terms of the Agreement, by the end of the three-year term, the VI was supposed to be in full compliance with the requirements of all programs funded by the Department. The Agreement became effective on September 23, 2002. In November 2003, officials from the Department conducted a site visit to provide intensive technical assistance and review the VI's progress during the first year of the Agreement. While VIDE had made significant progress in some issue areas identified in the Agreement, the VI had not made progress in many key areas, particularly that of financial management, which significantly affected its ability to manage Department funds and administer Department programs. The Department continued to monitor the VI's compliance with the terms of the Agreement and provided frequent, intensive technical assistance to the VI during the course of its three-year term. In March 2005, the Department notified the VI of its concerns regarding the VI's limited progress in meeting the goals of the Agreement. The Department required the VI to demonstrate why the Department should not begin to take immediate remedial action under the terms of the Agreement. After considering the VI's response, the Department concluded that the VI had failed to meet on a timely basis key terms and conditions of the Agreement that are critical to successful compliance with applicable requirements and that the VI would not be able to meet all of the terms and conditions of the Agreement by its expiration on September 23, 2005. In particular, the Department noted that there was a significant lack of progress on the part of the VI in developing and implementing a credible central financial management system—the cornerstone of the VI's financial management improvements that are critical to its ability to manage Department funds consistent with applicable Federal regulations concerning fiscal accountability and funds management. Therefore, in accordance with section II.A. of the Agreement, and section 457(d) of GEPA, the Department imposed special conditions on grant awards to the VI, including a requirement that the VI procure, and maintain, the services of a third-party fiduciary agent, acceptable to the Department, to perform the financial management duties required under Federal regulations for all Department grant awards made to the VI. The VI subsequently published a Request for Proposal and selected a third-party fiduciary agent acceptable to the Department. The Department is currently monitoring the work of this third-party fiduciary agent and the VI's compliance with these special conditions and continues to provide technical assistance and oversight in a continuing effort to bring the VI into full compliance with applicable Federal regulations. As required by section 457(b)(2) of GEPA, 20 U.S.C. 1234f(b)(2), the Agreement (which incorporates the Department's written findings in the section entitled “Overview of Issues”, and in each “Issue Description” section of the Agreement) is included as appendix A of this notice. Electronic Access to This Document You may view this document, as well as all other Department of Education documents published in the **Federal Register** , in text or Adobe Portable Document Format
(PDF)on the Internet at the following site: *http://www.ed.gov/news/fedregister* . To use PDF you must have the Adobe Acrobat Reader Program with Search, which is available free at this site. If you have questions about using PDF, call the U.S. Government Printing Office (GPO), toll free, at 1-888-293-6498; or in the Washington, DC area at
(202)512-1530. Note: The official version of a document is the document published in the **Federal Register** . Free Internet access to the official edition of the **Federal Register** and the Code of Federal Regulations is available on GPO Access at: *http://www.gpoaccess.gov/nara/index.html* . Authority: 20 U.S.C. 1234c, 1234f. Dated: October 18, 2007. Hudson La Force III, Senior Counselor to the Secretary of Education. Appendix A—Compliance Agreement Between The U.S. Virgin Islands and the U.S. Department of Education September 23, 2002. U.S. Virgin Islands Compliance Agreement I. Overview of Issues II. Consequences for Not Meeting the Terms and Conditions of the Agreement A. Mutual Agreements and Understandings Regarding the Terms, Conditions and Enforcement of This Compliance Agreement Severability Additional Terms and Conditions Under 34 CFR § 80.12 Judicial Enforcement 1. Cease and Desist Order Under 20 U.S.C. §§ 1234c(a)(2) and 1234e 2. Referral to Department of Justice for Appropriate Enforcement—20 U.S.C. § 1416 Withholding of Grant Funds—20 U.S.C. §§ 1234c(a)(1), 1234d and § 1416 Escrow Account to Fund Third-Party Recovery of Funds—20 U.S.C. § 1234a B. Criteria for Determining Consequences III. Reporting Requirements IV. Updated Plans, Action Steps, and Timelines From December 2001 Meeting V. Issues Issue 1.0: Program Planning, Design, and Evaluation Issue Description Identification of Long-Term Goals Assessment of Current Status of Programs in Terms of Goals Identification of Educational Program Needs To Meet Goals Development of Program Design and State Plans or Applications That Address Identified Needs Sub-Issue 1.1: Separation of State and Local Educational Agencies Sub-Issue Description Performance Measures for Issue 1.0 and 1.1 Action Steps Required Issue 2.0: Financial Management Issue Description Sub-Issue 2.1: Credible Financial Management System Sub-Issue Description Performance Measures for Issue 2.0 and 2.1 Action Steps Required Sub-Issue 2.2: Indirect Costs Sub-Issue Description Performance Measures for Issue 2.2 Action Steps Required Sub-Issue 2.3: Obligation of Funds/Disbursement of Obligation Sub-Issue Description Performance Measures for Issue 2.3 Action Steps Required Issue 3.0: Human Capital Issue Description Sub-Issue 3.1: Recruiting and Hiring Sub-Issue Description Performance Measures for Issue 3.0 and 3.1 Action Steps Required Sub-Issue 3.2: Inadequate Time Accounting and Supplanting Sub-Issue Description Performance Measures for Issue 3.2 Action Steps Required Issue 4.0: Property Management and Procurement Issue Description Sub-Issue 4.1: Property Management Sub-Issue Description Performance Measures for Issue 4.0 and 4.1 Action Steps Required Sub-Issue 4.2: Competitive Procurement (Improved Process) Sub-Issue Description Performance Measures for Issue 4.2 Action Steps Required I. Overview of Issues As a result of serious and recurring deficiencies in the administration of various Federally funded programs by the government of the U.S. Virgin Islands (VI), the U.S. Department of Education (the Department) has designated VI a “high-risk grantee” under 34 CFR § 80.12. The Department has been working closely with the Virgin Islands Department of Education
(VIDE)and with other Virgin Islands agencies in recent months to address these major issues, but it is clear that the problems cannot be corrected by the Virgin Islands immediately, and that the Virgin Islands will need more than one year to correct them. Therefore, in order to remedy this condition, the Department has consented to enter into this comprehensive, three-year compliance agreement with VI. Through this Compliance Agreement, the VI, with assistance from the Department, agrees to develop integrated and systemic solutions to problems in managing Federal education funds and programs. The issues are being carefully examined and addressed from the perspective of every VI agency and local entity with management responsibility for resources or programs that have an impact on education. Solutions may involve re-engineering systems and processes or implementing technology. In addition, solutions must address communication and cooperation among VI Departments, and developing a culture of “getting the work done right.” Whatever the solutions the VI chooses to implement, they must ensure the best educational systems possible for the people of the Virgin Islands. It is also understood that by the end of the term of this Agreement, VI must be in full compliance with the requirements of all programs funded by the Department. The Compliance Agreement is also intended to ensure an effective planning and evaluation process throughout VI programs and initiatives. Planning and evaluation processes are the basis for determining program goals, current status, improvement needs, budgets, resources, effectiveness of results, and other important aspects of effective program management. Through this Agreement, the VI will improve its program planning and evaluation for education programs and use the plans and evaluation results to drive management and resource decisions. This Compliance Agreement addresses four areas of crosscutting issues:
(1)Program Planning, Design and Evaluation,
(2)Financial Management,
(3)Human Capital, and
(4)Property Management and Procurement. The issues are presented as crosscutting because of the impact of other VI agencies on VIDE. Thus, it is critical that these issues be addressed not just in VIDE but across virtually the entire Virgin Islands government. In addition, the issues cannot be addressed in a piecemeal fashion and they must encompass an effective planning and evaluation process. The Compliance Agreement lists specific action items for each crosscutting issue. However, the Department will not determine the VI's progress in meeting the terms of the Agreement only by assessing completion of listed action steps. Rather, the Department will judge progress by the systemic approaches and degree of integration that the VI brings in designing and implementing solutions to complex problems in each of the crosscutting areas, and by the demonstrated communication, cooperation, and organizational culture change toward “getting the work done right.” These approaches should include effective planning and evaluation of resource and management decisions that are designed to produce better educational results. In making the critical systemic and organizational culture changes required to meet the terms of the Compliance Agreement, it is important to understand that the Agreement is not designed to benefit the Department, VIDE, or the Virgin Islands government. All of the requirements of the Compliance Agreement are directed toward one end: improving education for the students of the Virgin Islands. In the end, the Department and the VI will judge success by determining how well the VI has improved educational programs and met the terms of the Compliance Agreement. II. Consequences for Not Meeting the Terms and Conditions of the Agreement A. Mutual Agreements and Understandings Regarding the Terms, Conditions and Enforcement of This Compliance Agreement Severability The parties agree that this Compliance Agreement includes terms and conditions that apply to the various Federal programs included in the Agreement (hereafter “covered Federal programs”) and also terms and conditions that are program specific. To that end, the parties agree that each such term and condition for each covered Federal program may constitute a separate agreement between the Virgin Islands and the Department. For purposes of 20 U.S.C. § 1234f, each such term or condition as to each covered Federal program shall be severable from each other term or condition for each of the covered Federal programs. Unless set out otherwise, a determination by the Department under 20 U.S.C. § 1234f(d) that the Virgin Islands is not meeting the terms and conditions may be specific to such term, condition or program without impacting the continuing obligations under the Agreement. That is, all other terms and conditions for all covered Federal programs or the specific term or condition for other covered Federal programs would remain in place for the duration of the Agreement or until such time as the Department determines failure by the Virgin Islands to meet those terms and conditions. Alternatively, the parties understand and agree that a determination by the Department under 20 U.S.C. § 1234f(d) that the Virgin Islands has failed to meet any of the terms and conditions shall, at the Department's discretion, be grounds for finding the Agreement, as to such terms and conditions, no longer in effect and that the Department may take any and all additional actions authorized by law. Some examples of such actions are set out below. Additional Terms and Conditions Under 34 CFR § 80.12 Under this provision, the Department may apply additional conditions to one or more of the Virgin Islands' grants, having determined that the Virgin Islands is a “high risk” grantee (because it has a history of unsatisfactory performance and has not conformed to terms and conditions of previous awards). Special conditions or restrictions may include, but are not limited to:
(1)Payment on a reimbursement basis;
(2)withholding authority to proceed to next phase until receipt of evidence of acceptable performance within a given funding period;
(3)requiring additional, more detailed financial reports;
(4)additional project monitoring;
(5)requiring the Territory to obtain technical or management assistance, including the designation of a third-party fiduciary to administer all or part of the Virgin Islands' grants from the Department; or
(6)establishing additional prior approvals. The use of a condition for one covered Federal program does not require or preclude its use for a different covered Federal program. Under such circumstances the Department would notify the Virgin Islands as early as possible, in writing, of the:
(1)Nature of special conditions/restrictions;
(2)reason(s) for imposing them;
(3)corrective actions which must be taken before they will be removed and time allowed for completing corrective actions; and
(4)method of requesting reconsideration of conditions/restrictions imposed. Judicial Enforcement 1. Cease and Desist Order Under 20 U.S.C. §§ 1234c(a)(2) and 1234e The Department may seek injunctive relief to compel specific actions or to stop specific actions. Under this process, the Department issues a complaint to the Virgin Islands, describing the factual and legal basis for the Department's belief that the Virgin Islands is failing to comply substantially with a requirement of law including this agreement, and containing a notice of hearing. A hearing before an Administrative Law Judge
(ALJ)must occur. The ALJ's report and order, requiring the Virgin Islands to stop specific actions or compelling specific actions, becomes the final agency decision. The Department may enforce the final order by withholding any portion of the Virgin Islands' grant award or certifying the facts to the Attorney General who may bring an appropriate action for enforcement of the order. 2. Referral to Department of Justice for Appropriate Enforcement—20 U.S.C. § 1416 If the Department finds, after reasonable notice and opportunity for hearing to the Virgin Islands, that:
(1)There has been a failure by the Virgin Islands to comply substantially with any provision of applicable Federal laws; or
(2)there is a failure to comply with any condition of a Local Educational Agency's or the Virgin Islands' eligibility (including terms of Compliance Agreement within timelines specified in Agreement), the Department may, after notifying the Virgin Islands, refer the matter for an appropriate enforcement action, which may include referral to the Department of Justice. Withholding of Grant Funds—20 U.S.C. §§ 1234c(a)(1), 1234d and § 1416 If the Department finds, after reasonable notice and opportunity for hearing to the recipient, that there has been a failure to comply substantially with a requirement of law, including with this Agreement, the Department may withhold, in whole or in part, future payments to the recipient. If the Department finds, after reasonable notice and opportunity for hearing to the Virgin Islands, that:
(1)there has been a failure by the Virgin Islands to comply substantially with any provision of applicable Federal laws; or
(2)there is a failure to comply with any condition of a Local Educational Agency's or the Virgin Islands' eligibility (including terms of Compliance Agreement within timelines specified in Agreement), the Department may, after notifying the Virgin Islands, withhold, in whole or in part, any further payments to the Territory. Department may limit withholding to a particular Local Educational Agency or State agency. Escrow Account To Fund Third Party If the Virgin Islands fails to meet a term deemed significant by the Department in the Compliance Agreement, the Department may place an appropriate amount of the Virgin Islands grants into an interest bearing escrow account to fund the duties of a third party fiduciary agent. VI may request a reconsideration of this action. Recovery of Funds—20 U.S.C. § 1234a Any funds improperly expended or not properly accounted for are subject to recovery by the Department according to 20 U.S.C. § 1234a. B. Criteria for Determining Consequences The Virgin Islands will provide the Department with quarterly progress reports for all of the action steps and performance measures set forth in the Agreement. The Virgin Islands and the Department agree that failure to
(1)provide all required reports in a timely manner,
(2)show substantial progress in completing all action steps as required,
(3)complete critical action steps within the timeframe designated in the Agreement, or
(4)achieve critical performance measures as specified in the Agreement, will be considered a failure to meet the terms and conditions of the Agreement. III. Reporting Requirements This Compliance Agreement requires regular progress reporting for all issues. VI must provide the Department
(1)a description of activities and progress for the issue and its related sub-issues during the reporting period,
(2)the status of each action step required to be taken during the reporting period,
(3)documentation of action step completion for those steps required to be completed during the reporting period (including explanation of delays for all steps not completed that were scheduled to be completed, and expected completion dates for all unimplemented steps),
(4)documentation of measures of performance and results, and
(5)other data or documentation as specified within the action steps for each issue or related sub-issue in this Agreement. This information should be transmitted to the Department by updating (at least quarterly) an internet web site developed and maintained by the Virgin Islands Government. The Virgin Islands Office of Management and Budget (VIOMB) will be responsible for tracking, monitoring and reporting progress on all requirements and milestones in this Agreement in a manner that is fully accessible to the Department and the public. Information in the progress tracking web site should be updated continuously, but in any event, no later than 30 days from the last day of each quarter. The first quarterly period will encompass the time from which all parties sign this Agreement through December 31, 2002. The VI and the Department agree that the following performance measures apply for each issue and sub-issue, in addition to other performance measures specified throughout this Agreement. 1. All plans, other documents, and reports are timely, complete, accurate, and address the requirements set forth in this Agreement. 2. All action steps are implemented within the timeframes set forth in this Agreement. 3. Implementation of action steps demonstrates progress towards achieving the outcomes or performance measures set forth in this Agreement. IV. Updated Plans, Action Steps, and Timelines From December 2001 Meeting Action steps and timelines that the VI developed in December 2001 are included in the issue descriptions throughout this document. The VI will need to assess the action steps and timelines developed in December and determine if
(1)the action steps fully meet the requirements of this Agreement,
(2)the action steps will move the VI toward achieving the required performance measures, and
(3)the timelines need to be modified within the time boundaries set forth in this Agreement. Updating the December action steps and timelines into plans for which the VI will be accountable is a critical action step for each issue and sub-issue. Once the VI develops a plan for each issue or sub-issue, as specified in this Agreement, and the Department agrees to the plan, the action steps and timelines in the plan will become additional requirements of this Agreement and be subject to the reporting requirements and consequences for not meeting terms and conditions as set forth in this Agreement. The Department will assist by consulting with VI to develop reports or reporting formats that shall satisfy the reporting requirements as set forth in this Agreement. The Department will also assist, to the extent that resources are available, the VI with the orientation and training of personnel. The remainder of this document provides issue descriptions, action steps, and performance measures for
(1)Program Planning, Design and Evaluation,
(2)Financial Management,
(3)Human Capital, and
(4)Property Management and Procurement. V. Issues Issue 1.0: Program Planning, Design, and Evaluation Issue Description Because the stated purpose of this Agreement is to improve education for the students of the VI, it is critical to successfully meeting the terms of this Agreement that the VI use the first year of the next three year period to develop long-term goals, assess the current status of each program receiving Federal assistance, and design coherent programs to bridge the gap between the current status of education in the VI and its educational goals and applicable requirements. An issue of significant importance to program planning, design, and evaluation is the legal and administrative impact of the organizational structure and legal classification of the various educational agencies in the Virgin Islands. This Compliance Agreement has been drafted in reliance upon the mutual understanding that the Virgin Islands has established and maintains a State educational agency
(SEA)and two local educational agencies (LEA), as defined under Federal law. Thus, for purposes of administering its Federal grants, VIDE, as the SEA, must make steady progress towards meeting all Federal requirements that are related to that designation, including where specified, providing LEAs, the St. Thomas/St. John school district and St. Croix school district, the appropriate levels of Federal funding and autonomy required under each Federal program's requirements. Therefore, by entering into this Agreement, the VI acknowledges the Department's reliance upon this designation, agrees to comply with the specific Federal requirements that apply through this designation and agrees not to change this designation during the period of this Agreement without the prior approval of the Department. Effective planning and design includes the following elements:
(1)program goals stated in measurable terms (outcome measures),
(2)baseline assessments of current status (baseline measures),
(3)comparison of current status to program goals (baseline measures to outcome measures),
(4)a report of areas where current programs do not meet goals,
(5)a plan to improve current programs to meet goals,
(6)a schedule for implementing the plan,
(7)measures to determine if the plan implementation is having the intended effect, and
(8)options for further modification if implementing the plan is not having the intended effect. Any planning and design process will take into account Federal and State requirements for each program, as well as other applicable professional standards. In addition, the planning process should include citizen and/or customer input and feedback; input is a vital part of the process to set goals, and feedback is equally significant in assessing results. A critically important aspect of the planning and design process is that it is fully integrated as the foundation for other program-related decisions about budgets, financial management, personnel requirements, and other resource needs. In order to fully implement this process, a comprehensive, school-based, statewide plan will be developed. The Department will provide model comprehensive plans, if appropriate, and referrals to successful jurisdictions for guidance. VI will seek the assistance of expert consultants and other grantees to provide hands-on guidance in completing the comprehensive planning process. Reasonable and necessary expenses for this assistance will be considered allowable costs chargeable to a Department grant to be awarded by September 30, 2002, provided an approvable application is received in a timely manner. The expected outcomes identified in this plan, among other federally and locally identified outcomes, will include: • Schools gain greater site-based authority to determine needs and apply funding to those needs. • School site-based management will be enhanced through greater school community involvement and increased awareness of accountability. • Programs can be implemented that best fit the needs of the individual school population rather than one district approach for all. • Activities conducted under this plan bring VI into compliance with statutory and regulatory requirements for Department programs. In general, the comprehensive statewide plan should be based on information derived from individual school plans. These school plans should include, at a minimum, the components listed below. • A comprehensive needs assessment of the entire school, based on information about student academic achievement. • Strategies that provide opportunities for all children to meet proficient and advanced levels of academic achievement, use effective methods of instruction that are based on scientific research and address the needs of all children in the school. • Instruction by highly qualified teachers as defined by the Elementary and Secondary Education Act. • High quality and ongoing professional development for teachers, principals, and other staff. • Strategies to attract high-quality teachers in all schools, but with special emphasis on high-need schools. • Strategies to increase parental involvement. • Plans for assisting preschool children in the transition from early childhood programs to local elementary school programs. • Measures to include teachers in decisions about academic assessment. • Assistance for children who experience difficulty mastering the proficient or advanced levels of academic achievement standards. • Coordination and integration of Federal, State and local services and programs. • Annual report cards for the performance of each school as defined by the Elementary and Secondary Education Act. • All expenditures are allowable under the requirements of each grant and applicable program. This comprehensive plan for reforming the total instructional program in the school should be developed during the first year period, with the involvement of staff, parents, administrators, and others. The plan must: • Describe how the school will implement the components summarized above. • Describe how the school will use resources to implement the components. • Include a description of Federal, SEA, and LEA programs that will be available in the individual school. • Describe how the school will provide parents with individual student academic assessment results and other information about the individual schools, including interpretation of the results, in understandable language. Identification of Long-Term Goals For each Federal program it is important to identify the desired or required outcomes, so VI can measure improvement for that program by how close it is to achieving these goals as well as maintaining improvement on a continuous basis. Examples of this are: • For the Title V, Part A program, the law requires states to aim for increased student academic achievement or improved quality of education for all students. • For the Vocational Education and Adult Education programs, the desired outcomes are defined by the program statutes in terms of the core indicators of performance or additional VI-identified indicators that measure student performance. Assessment of Current Status of Programs in Terms of Goals This sub-issue involves an assessment at the VI-wide and school level of each Federal program in terms of the goals identified. It also requires VI to identify a measurement approach (a method for measuring) for each goal or core indicator. Once the measurement approach is identified, VI must establish a baseline that reflects the current status for each goal or indicator. Examples of this include: • For the Title V, Part A program, VI must identify the current academic levels for the students benefiting from the program, which is the baseline, and establish incremental targets for improvement to reach the goals identified in sub-issue 1.2. • For the Vocational Education and Adult Education programs, the VI must establish a baseline and levels of performance (incremental targets) for each required core indicator and any VI-identified indicators for each of the subsequent years of this Agreement. Identification of Educational Program Needs to Meet Goals Once the VI has identified its baselines in comparison to its goals, it must identify the needs that have to be met to bridge the gap between the baseline (current status) and the goals. The needs must be consistent with the purposes and allowable activities under each program. In developing program activities, VIDE will have as a goal that by the end of the three year period of this agreement, 95% of the Federal education funds will be spent on instructional activities and directly related expenditures. Development of Program Design and State Plans or Applications That Address Identified Needs The VI must develop, prepare, and submit to the Department a State application in conformance with the requirements of each program for which funds are being expended and any other requirements set forth in this Agreement. These applications should be based on information gathered from the school-based comprehensive plans developed under this section. Sub-Issue 1.1: Separation of State and Local Educational Agencies Sub-Issue Description In a letter dated August 1, 2001, at the request of the Department and VIDE, the Attorney General of the Virgin Islands provided the legal opinion that under local law, the structure and functions of the various educational agencies in the Virgin Islands were divided into, VIDE, as the SEA, and the St. Thomas/St. John school district and the St. Croix school district, as the two LEAs. This has significant implications for the administration of Federal education programs. For example, under Part B of the Individuals with Disabilities Education Act, the SEA must ensure that eligible LEAs receive subgrants under the formula specified at 34 CFR § 300.712. Additionally, under Title V of ESEA, an LEA is to have complete discretion in deciding how to allocate funds among the allowable Title V program areas, and must ensure that its Title V expenditures carry out the purposes of the program and are used to meet the educational needs in schools within the LEA. The specific terms of this Compliance Agreement contemplate the administrative structure of one SEA and two LEAs. Performance Measures for Issue 1.0 and 1.1 1. By the end of the three-year period of the Compliance Agreement, VI will be in full compliance with the program requirements of all Department grants for which VI expends funds and any other requirements set forth in this Agreement. 2. VI's implementation of the action steps described below brings it into full compliance with the standards and assessment requirements of Title I, ESEA that all States were required to meet by the end of the 2000-2001 school year, no later than the end of the three-year period of the Compliance Agreement. 3. By the end of the three-year period of the Compliance Agreement, VI must have developed a detailed plan for how it will comply with the requirements of the Elementary and Secondary Education Act, including Title I, Part A of the ESEA as reauthorized by the No Child Left Behind Act. We expect that at the end of the three-year period, VIDE will apply for most or all of the individual programs authorized under the Elementary and Secondary Education Act, the Adult Education and Family Literacy Act rather than consolidating them. 4. By the end of the three-year period of the Compliance Agreement, VI's implementation of the action steps described below must bring its programs into full compliance, with respect to Federal law and with the obligations and responsibilities of a single SEA and two LEAs. Action Steps Required Year 1 Year 2 Year 3 1. The VI must submit to the Department within 120 days from the date of the compliance agreement, an approvable action plan that can demonstrate steady progress toward developing a comprehensive statewide plan and fiscal year 2003 consolidated grant application described in items two and three below 1. In the second year of the Compliance Agreement, the VI will implement the comprehensive, statewide plan and demonstrate that it is achieving the program goals that are required 1. In the third year of the Compliance Agreement, the VI will implement the comprehensive, statewide plan and demonstrate that it is achieving the program goals that are required. 2. Within the first year of the Compliance Agreement the VI must develop a comprehensive, school-based, statewide action plan for complying with the requirements of various programs funded by the Department including, but not limited to: Title I, Part A of ESEA standards and assessment requirements, Vocational Education State Plan, Occupational and Employment continuation grant, Adult Education, and Title V-A. The plan must include, at a minimum, the following elements:
(1)Goals stated in measurable terms (outcome measures) based on program requirements;
(2)baseline assessments of the VI's current status (baseline measures);
(3)comparison of the VI's current status to the goals including an appropriate needs assessment;
(4)a report of areas where current programs do not meet goals;
(5)action steps to improve current programs to meet goals;
(6)a schedule with clear, reasonable completion dates for implementing the action steps;
(7)measures to determine if the plan implementation is having the intended effect;
(8)options for further modification if implementing the plan is not having the intended effect;
(9)demonstration of citizen and customer input and feedback; and
(10)demonstration of its foundation for decisions about budgets, personnel requirements, and other resource needs. Other requirements of the plan are included in section 1.0 above and applicable laws and regulations 2. In the second year of the Compliance Agreement, the VI will demonstrate steady progress towards meeting all Federal requirements related to the designation of a single SEA and two LEAs and is ready to meet all requirements 2. In the third year of the Compliance Agreement, the VI will meet all Federal requirements related to the designation of a single SEA and two LEAs and is ready to meet all requirements. 3. Within the first year of the Compliance Agreement the VI must include in the development of a comprehensive, school-based, statewide action plan such action steps that will show steady progress in meeting the requirements of Department grants with respect to separate SEA/LEA issues described in sub-issue 1.1 above 3. The VI will prepare and make public annual report cards for the performance of each school as defined by the No Child Left Behind Act 3. By the end of the three-year period of the Compliance Agreement, VI will have submitted a detailed plan for how it will comply with the requirements of the No Child Left Behind Act, including Title I, Part A of the ESEA as reauthorized by the No Child Left Behind Act. 4. Prepare and submit semi-annual expenditure report that includes certification that all expenditures are for allowable purposes (the reports will include the detail required in the FY 2000 special conditions) 4. The VI will prepare and submit semi-annual expenditure report that includes certification that all expenditures are for allowable purposes (the reports will include the detail required in the FY 2000 special conditions) 4. The VI will prepare and make public annual report cards for the performance of each school as defined by the No Child Left Behind Act. 5. The VI will prepare and submit semi-annual expenditure report that includes certification that all expenditures are for allowable purposes (the reports will include the detail required in the FY 2000 special conditions). Issue 2.0: Financial Management Issue Description It is critical to successfully meeting the terms of this Agreement that the VI use the next three years to develop a credible central financial management system (FMS). In brief, such a system would provide the correct amount of funds, in the correct accounts, in a timely manner, all the time. Credible financial management includes systems, policies, and procedures that
(1)provide access to accurate information when needed,
(2)account appropriately for funds,
(3)ensure timely deposits or draw down of funds,
(4)ensure timely and accurate payments, and
(5)otherwise enable and support generally accepted government financial management and accounting standards and requirements. In addition, VIDE, VIDF and other VI Departments must demonstrate improved communication and cooperation to develop an FMS that meets needs across the VI. Through the terms of this Agreement, financial management systems will be integrated with one another (i.e., across departments) and with other management systems (including budget, human resource management, property and procurement, and planning and evaluation). One example of the integration required includes connecting financial management policies and systems with time and attendance systems to ensure appropriate payment and accounting for staff time. It is especially important for the purposes of this Agreement that the VI financial management system is effectively integrated with all management systems and procedures in VIDE. All of the action steps to address the financial management issue are important, but it is a critical factor for success that the VI improve its cash management function immediately. The cash management function must be able to provide timely and accurate information about each draw down of funds from the Department. Inability to track drawn down funds will be considered a failure to meet the terms and conditions of this Agreement. In addition to the overall requirement to develop a credible central FMS, this Compliance Agreement also addresses issues related to
(1)indirect costs, and
(2)obligation of funds and disbursement of obligations. Both issues are closely tied to a credible FMS and the Department will assess progress in meeting the terms of this Agreement by the systemic approaches and degree of integration that the VI brings in designing and implementing solutions to all of its longstanding problems in the financial management area. Sub-Issue 2.1: Credible Financial Management System Issue Description This sub-issue involves many areas that must be systemically addressed. In December 2001, VI staff identified a series of action items related to addressing the FMS issues, including information flow, adjustments, system improvements, training, payroll, reporting systems, draw downs, and other areas. Department staff have further supplemented VI's list. One example of the FMS issue was illustrated in the 2000 single audit findings: the auditors are still using different Department (e.g., VIDE) accounting records to compare with Department of Finance records. Invariably, the cash accounts show shortages in terms of amounts drawn from Federal agencies as compared to VI Departments' records. To satisfy the requirements of this Agreement, the VI will develop a credible central FMS in which records account for all draws and expenditures of Federal education funds. VI agencies and single auditors will be able to rely on the central FMS as an accurate system of record. In the short term, any differences between the Department of Finance and VIDE will be reconciled concurrently, but at the end of three years, VI agencies should no longer need separate accounting systems. Performance Measures for Issue 2.0 and 2.1 1. Within one month of the inception of this Agreement, appropriate VIDE, VIDH, VIOMB and VIDF staff members will be provided with access to the Department's GAPS system to monitor draw downs. 2. By December 31, 2002, the VIDF will complete a vision document for the implementation of a credible central FMS. 3. By March 31, 2003, the VIDF will complete a plan for developing and implementing a credible central FMS. 4. From the inception of this Compliance Agreement, all transactions for draws and disbursements, as well as any required adjustments for Federal education programs' funds will be timely and accurately recorded in the VIDF accounting system as they occur according to generally accepted accounting standards. Inability to track drawn down funds will be considered a failure to meet the terms and conditions of this Agreement. 5. By the conclusion of the third year of the Compliance Agreement, VI will conduct monthly reconciliation of draws and expenditures, resolve any differences, and record appropriate adjustments. 6. By the conclusion of the second year of the Compliance Agreement, the VI will institute an independent internal audit function within VIDE that will abide by the standards for internal audit prescribed by the Institute of Internal Auditors (IIA). 7. By the conclusion of the Compliance Agreement, VI agencies will no longer need separate accounting systems. 8. By the conclusion of the Compliance Agreement, single auditors will be able to rely on the FMS as the accurate system of record for the financial statement audit. Action Steps Required Year 1 Year 2 Year 3 1. Within one month of the inception of this Agreement, appropriate VIDE and VIDF staff members will be provided access to the Department's GAPS system to monitor draw downs 1. Twice during the 2003-2004 school year, the VI will publicize the U.S. Department of Education Office of Inspector General Hotline telephone number 1-800-MISUSED and the Department of Interior OIG Hotline (1-800-424-5081) to all schools, teachers, parents of students in schools, participants in adult education and vocational education programs, VIDE employees, and the public and encourage anyone with any knowledge of misuse of Federal education program dollars to call the Hotlines 1. VI will conduct quarterly reconciliation between GAPS, VIDE, and VIDF draws and expenditures, resolve any differences, and record appropriate adjustments within 30 days. 2. By December 31, 2002 the VIDF will create a vision document of a credible central FMS. The vision document will specifically describe how the system would
(1)provide access to accurate information when needed,
(2)account appropriately for funds,
(3)ensure timely deposits or draw down of funds,
(4)ensure timely and accurate payments,
(5)ensure, prior to archiving any financial data, the capacity to retrieve that data in the future, and
(6)otherwise enable and support generally accepted government financial management and accounting standards and requirements. The vision document will also describe how the central FMS would serve as an accurate system of record that would no longer require separate accounting systems in different agencies. The document will also provide a detailed diagram of each function of the system and how it would integrate with other related systems or processes, (including, but not limited to, program planning, grant administration, budget, property and procurement management, time and attendance, human resource management, and payroll). The vision document and plan (see #3 below) will be based on an independent party performing a needs assessment for the financial management system 2. By the conclusion of the second year of the Compliance Agreement, the VI will institute an independent internal audit function within VIDE that will abide by the standards for internal audit prescribed by the Institute of Internal Auditors (IIA). In this regard, VIDE will create an independent Audit Committee that will make all audit resolution decisions for the VIDE and to whom the internal auditor will report 2. Twice during the 2004-2005 school year, the VI will publicize the Federal Education Office of Inspector General Hotline telephone number 1-800-MISUSED and the Department of Interior OIG Hotline (1-800-424-5081) to all schools, teachers, parents of students in schools, participants in adult education and vocational education programs, VIDE employees, and the public and encourage anyone with any knowledge of misuse of Federal education program dollars to call the Hotlines. 3. By March 31, 2003, the VIDF will create a plan for how it will develop and implement the credible central FMS described in the vision document. The plan will also include resource requirements for implementing the plan, with action steps and timelines, and identify how the resources will be obtained. The vision document (see #2 above) and plan will be based on an independent party performing a needs assessment for the financial management system 3. VI will conduct quarterly reconciliation between GAPS, VIDE, and VIDF draws and expenditures, resolve any differences, and record appropriate adjustments within 30 days 4. During the first year of the compliance agreement, VI will conduct semi-annual reconciliation between GAPS, VIDE, and VIDF draws and expenditures, resolve any differences, and record appropriate adjustments within 30 days. These reconciliations will be provided on a semi-annual basis to the Department for review with evidence that all adjustments have been made 5. Twice during the 2002-2003 school year, the VI will publicize the Federal education Office of Inspector General
(OIG)Hotline telephone number 1-800-MISUSED, and the Department of Interior OIG Hotline (1-800-424-5081) to all schools, teachers, parents of students in schools, participants in adult education and vocational education programs, VIDE employees, and the public and encourage anyone with any knowledge of misuse of Federal education program dollars to call the Hotline Sub-Issue 2.2: Indirect Costs Sub-Issue Description The indirect cost issue relates to the manner in which the indirect costs associated with Federal funds are distributed within VI. OMB Circular A-87 specifies indirect cost requirements. In December 2001, officials from ED, VI and other Federal agencies developed and agreed on a three-phase process to address the indirect cost issue. Phase I of the process outlines steps for indirect cost determination and distribution; Phase II outlines steps for making rate application corrections, and Phase III outlines steps for preparing a new rate proposal. The VI will implement the agreed upon steps of the process in a timely manner and report progress to ED. Performance Measures for Issue 2.2 1. As described below, steps to determine indirect costs and distribute indirect cost reimbursement between the VIDE and the VI will be fully implemented by OCTOBER 1, 2002 in accordance with VIOMB's new policy. The new OMB policy will provide for a pro rata allocation that segregates central service indirect costs from agency level or departmental indirect costs. 2. By the beginning of Fiscal Year
(FY)2003, the VI and the Department must have agreed on an indirect cost rate to use for FY 2003. 3. Starting April 1, 2003, unused leave for separating employees will not be charged directly to Federal programs, but allocated only as indirect costs. 4. All of the underlying problems having to do with indirect costs will be eliminated by FY 2004, so that audits and other monitoring procedures will have minimal findings related to indirect rates in FY 2003, and no findings related to indirect rates in FY 2004 and 2005. 5. By the conclusion of the Compliance Agreement, there will be 100 percent application of the correct, current indirect cost rate in education programs. Action Steps Required Officials from VI, the Department and other Federal agencies agreed in December 2001 about three phases of action steps to address the indirect cost issue. The phases, related steps, and agreed upon time lines are listed in the table below. (Steps listed in bold were added by the Department staff members after the December 2001 meeting.) Year 1 Year 2 Year 3 1. If the steps or timelines listed in this table are no longer valid, the VI will ask the Department to consider a revised plan of action steps and timeline by October 1, 2002 2. In addition to other requirements set forth in the Reporting Requirements section of this document, the quarterly reports for this sub-issue will include a copy of the products developed for each step of the process Phase I: Indirect Cost Determination and Distribution • DOI IG will submit letter to the Legislature and Governor outlining the indirect cost fund sharing issue • Develop cost policy statement regarding Indirect Cost Fund Sharing • OMB will submit policy change recommendation and potential changes to the existing legislation on the indirect cost fund, if necessary, to the Legislature with copies to the U.S. Department of Interior
(DOI)and the Department • ED indirect cost staff transmit cost policy template to VI OMB • VIDE will provide cost policy statements to the Department and DOI by September 30, 2002 • Cost policy statements will be amended as appropriate to account for the LEA/SEA relationship • OMB will provide agencies with account codes for receipt and expenditure of indirect cost funds. Any shortfalls will be absorbed by VIDE, not VIDE programs • VIDF will propose accounting changes to implement new indirect cost policy for review by the Department and DOI by September 30, 2002. The policy must address unused leave for separating employees • Training needs will be identified • Training will be planned and scheduled • Training will be implemented Phase II: Rate Application Corrections • Determine and correct current rates, as necessary • As needed, correct the rate table and apply correct rates to current grant programs • Review FY 2002 indirect cost rates on FMS versus current rates on indirect rate plan • Review the prior year indirect costs applied to grants and prepare necessary adjustments • Develop a procedure to report indirect cost rate application errors to VIDF Phase III: New Rate • Obtain three-year rate proposal with the following steps: • Issue RFP for 2003-2005 • P& P issue invitations for bids • P& P review bid packages • Contract sent to Justice • Justice reviews contract and forwards to Governor's legal counsel • Contract executed • Contract work performed • Submit rate proposal to IG • Submit draft agreements to agencies for review and approval/signature • Agencies implement new rates Sub-Issue 2.3: Obligation of Funds/Disbursement of Obligation Sub-Issue Description Federal education funds in the VI must be obligated and disbursed in a manner that ensures that programs are appropriately managed. Specifically, application for funds should be based on program plans, and funds disbursement should occur as the program plans dictate and be tied to specific activities. In addition, funds should be spent in a timely manner based on resource requirements for activities specified in the program plans. Under the terms of this Agreement, the VI will develop a grant application process and subsequent spending process that ensures that grant awards are based on specified program plans and spent on the programs in a timely manner. The grants systems will be integrated with the central FMS. The outcome measures for this issue are that
(1)program plans are the basis for application and disbursement,
(2)disbursements are tied to actions specified in program plans,
(3)all funds are spent for allowable purposes under the statutes, and
(4)no funds are lost due to lapsing obligation periods. Performance Measures for Issue 2.3 1. The VI will complete an analysis of past problems with program planning, obligation, and disbursement by September 30, 2002. 2. The VI will develop a plan to re-engineer its grants application, planning, and disbursement by March 31, 2003. 3. The VI will fully implement the plan to re-engineer its grants application, planning, and disbursement by March 31, 2004. 4. Within one month after the Compliance Agreement is signed, the VI will put in place a system of safeguards to assure that lapses of funds will be minimized. 5. No lapses of funds will occur after March 31, 2003. Funds lapse when the deadline allowed by law to obligate Federal grant awards has passed and funds remain that have not been properly obligated. These funds are no longer available to VI for use. 6. In the final year of the Compliance Agreement,
(1)program plans will be the basis for application and disbursement,
(2)all disbursements will be tied to actions specified on program plans,
(3)all funds are spent for allowable purposes under the statutes, and
(4)no funds will be lost due to lapsing obligations periods. 7. The grant application, planning, obligation, and disbursement functions will be fully integrated with the FMS by the conclusion of this Compliance Agreement. 8. At the end of the three-year period, VI will liquidate obligations on a timely basis and not need extensions in the liquidation period. Action Steps Required In December 2001, VI staff members developed the action items listed below to address the obligation of funds/disbursement of funds issue. Although the action items are an important first step, they do not go far enough in ensuring a grant application, award, and spending system that ensures that needed funds are received and fully spent to support programs. The table below provides further required action steps. Receipt of Grant Award • All DOE grant awards and extension approvals should go to the VIDE Commissioner with a copy to VIDE Federal Grants Office who will distribute copies to the Board of Education, VIOMB and VIDF. • Access to GAPS system to review all grant awards as an extra check on grants. Grant Periods • Extensions should be requested by program managers in writing 60 days prior to the expiration date of the grant to justify the reason for the extension. For all grants to the VI government, extensions apply ONLY to liquidation of expenses that were obligated during the Federal funding period specified in the grant award. • Quarterly performance meetings to evaluate reported expenditures against the spending plan. • Develop a grant tracking system. • Quarterly prepare lists of expiring grants to be provided to the Commissioner, which include the percent of funds expended. • Document the rules about obligation and extension dates. Year 1 Year 2 Year 3 1. Within one month after the Compliance Agreement is signed, the VIDE will implement a policy statement delineating the procedure for reviewing and processing sub grantee awards to expedite allocations and disbursement of Federal funds to eligible applicants within five days of receipt from the LEA program office. Applications not approved for funding will be returned to the Program Office originating the proposal within the five working day period. If the timeline requirement is not met, the Commissioner will submit a letter of explanation to the funding agency within ED, with a copy to the affected program 1. The plan to re-engineer the grant application, planning, obligation, and disbursement functions will be fully implemented by March 31, 2004 1. The grant application, planning, obligation, and disbursement functions will be fully integrated with the FMS by the conclusion of this Compliance Agreement. 2. Within 45 days after the Compliance Agreement is signed, the VI will put in place a system of safeguards to assure that lapses of funds will be minimized 3. By September 30, 2002, the VI will provide the Department with
(1)a list of Federal requirements for program planning, obligation, and disbursement of funds, and
(2)an analysis of the VI's education grants for the past fiscal year that specifies where problems in meeting requirements occurred in program planning, obligation and disbursement, and why the problems occurred 4. Based on the analysis of requirements and past problems, the VI will develop and provide the Department with a plan, by March 31, 2003, to re-engineer its grant application, planning, obligation, and disbursement functions. The plan will include policies, procedures, and systems to ensure that
(1)program plans are the basis for application and disbursement,
(2)disbursements are tied to actions specified in program plans, and
(3)no funds are lost due to lapsing obligation periods 5. By March 31, 2003, the VI will create a common template and timetable for all program plans. Such a template and timetable will structure planning information and provide a structure for activity-based disbursement plans and decisions Issue 3.0: Human Capital Issue Description The human capital issue area encompasses two significant sub-issues:
(1)Recruiting and hiring, and
(2)time and attendance accounting and supplanting. The recruiting and hiring issue involves ensuring that qualified teachers and related service personnel are available for students in every classroom. The time and attendance accounting and supplanting issue deals with ensuring that personnel paid by Federal education funds are in fact performing the appropriate jobs in the programs they were funded to work in. Timelines or action items under this Compliance Agreement do not replace and/or exclude any requirements of previous Compliance Agreements. For example, the VIDE IDEA—Part B Compliance Agreement states: “By 12/01 VIDE is to have hired qualified personnel to fill 85% of any vacancies (related to special education vacancies) that occurred after 10/99.” That requirement, and all others under the previous Compliance Agreement will remain in force. Sub-Issue 3.1: Recruiting and Hiring Sub-Issue Description Ensuring that there is a highly qualified teacher in every classroom is critical to improving education in the VI and to complying with Federal education requirements. Through this Agreement, the VI will address the human capital issue in the immediate, short, and long terms. In the immediate term, the VI will develop a policy for class coverage that ensures that adults are supervising every classroom at all times that students are present. In the short term, the VI needs to determine how many highly qualified teachers they currently have in the schools and how many they need, and develop a plan to hire or otherwise engage the services of the teachers or other qualified personnel that they need over each of the next three school years and beyond. In the longer term (although these actions are not covered under this Compliance Agreement), the VI will create initiatives to encourage young people to take up teaching as a career and to prepare them for such careers. The VI will re-engineer its hiring process so that teachers and related personnel can be moved into the schools quickly, and receive their first paycheck on a reasonable time schedule. In December 2001, VI staff members identified action steps to address recruiting and hiring concerns. However, the VI needs to consider a much fuller range of options for getting qualified teachers and related personnel into classrooms, and it must do so quickly. Students cannot easily regain educational opportunities lost to them for each year that they do not have a qualified teacher. Performance Measures for Issue 3.0 and 3.1 1. VIDE will immediately implement its expedited hiring authority and use the authority in hiring qualified teaching staff. 2. VI will develop hiring goals and priorities for five years by March 31, 2003. 3. VI will meet its hiring goals for the 2003-2004 school year. 4. VI will meet its hiring goals for the 2004-2005 school year. 5. In the 2002-2003 school year and beyond, there will be no instances of classes or students without adult supervision. 6. By the beginning of the 2003-2004 school year, all newly recruited staff will be deployed within one month of acceptance of an employment offer and will receive their first paycheck within one month of starting work (with respect to Special Education, the terms of the MOA shall apply.) Action Steps Required Year 1 Year 2 Year 3 1. By OCTOBER 31, 2002, the VI will develop policies and procedures for class coverage (i.e., by using substitute teachers, administrators, supervisors, principals, etc.), in the event that a teacher is unable to be in the classroom when students are present 1. VI will meet its hiring goals for the 2003-2004 school year. In addition to the items set forth in the “Reporting Requirements” section of this Agreement, quarterly reports will also include each person's date of hire, date of entry into the personnel system, date of arrival on the job, and the date of receipt of first paycheck. The report should include contact information for each new hire so that the Department staff can confirm the personnel data reports with staff members 1. VI will meet its hiring goals for the 2004-2005 school year. In addition to the items set forth in the “Reporting Requirements” section of this Agreement, quarterly reports will also include each person's date of hire, date of entry into the personnel system, date of arrival on the job, and the date of receipt of first paycheck. The report should include contact information for each new hire so that the Department staff can confirm the personnel data reports with staff members. 2. By DECEMBER 31, 2002, the VI will determine the percentage of classes conducted by highly qualified teachers as defined in The No Child Left Behind Act of 2001 2. By the beginning of the 2003-2004 school year, the VI will have implemented a process to re-engineer its personnel system and related payroll process so that all new staff hired for education programs can be deployed to classrooms within one month of being hired and receive their first paycheck within one month of starting work 3. By DECEMBER 31, 2002, VIDE will establish a plan to increase recruitment of specialized personnel, such as speech pathologists, physical therapists, occupational therapists, etc. VIDE will prepare and work with VIDH to establish a memorandum of agreement between VIDH and VIDE to jointly recruit and share needed specialized personnel, such as speech pathologists, physical therapists, occupational therapists, etc. The terms of such agreement need not require that either agency share personnel during any periods of time when either of the agencies is fully utilizing all of its personnel in order to meet the needs of the infants, toddlers, or children with disabilities as required under Federal law and the sharing of personnel would cause one of the agencies to be out of compliance 4. By DECEMBER 31, 2002, the VI will determine how many highly qualified teachers it needs per program to employ to achieve the goal of having a qualified teacher in every classroom within 5 school years. In determining the number of teachers it needs, the VI will ensure ratios comparable to similar sized school districts for the
(1)average number of students per teacher,
(2)average number of administrators per student, and
(3)percentage of Federal dollars spent directly for classroom instruction and related expenses. In addition, the VI will assign priorities to the types of teachers needed. For example, based on the previous Compliance Agreement, special education programs are currently an immediate priority for filling vacancies. As another example, high school teachers are also an immediate priority so that the VI high schools can regain accreditation 5. By MARCH 31, 2003, and based on the total number of qualified teachers needed over five years and the priorities for types of vacancies to fill first, the VI will set specific goals for employing qualified teachers in specific classrooms each year. The yearly goal should equal 20% of the total number of qualified teachers needed within 5 years (i.e., yearly goal = total # qualified teachers needed over 5 years/5) 6. By APRIL 30, 2003, VI will develop an action plan to revise as necessary the action steps to improve the hiring process, including the use of current legislative authority for VIDE to bypass the personnel office, and expedite the hiring process 7. The VI will work with the Board of Education to expedite the teacher certification process, including alternative certification approaches 8. The VI will work with the Board of Vocational Education to expedite setting standards for teacher certifications, including alternative certification approaches Sub-Issue 3.2: Inadequate Time Accounting and Supplanting Sub-Issue Description VIDE currently cannot adequately demonstrate that employees paid out of Federal education funds are performing work in the programs they are paid to support. This is especially an issue where employees split their time between Federal and other programs, or between more than one Federal program. Supplanting is also an issue, which involves, simply stated, using Federal funds to pay for personnel that the State should pay. The time and attendance accounting issue is one that will be integrated across all management systems. Planning will determine which employees will work in which programs and for how much time. Budgeting will ensure that funds are appropriately available, and financial management and accounting systems will ensure that funds are appropriately spent and accounted for. Human resource information systems will be able to accurately reflect and report how employees spent their time. Although this issue is covered here, with other human capital issues, it is important that plans and actions to address the problem be developed and implemented at a systemic level and integrated with other management systems. The objectives of addressing this issue are to ensure that
(1)the salaries of employees who work under more than one Federal program are properly allocated among those programs, in accordance with accurate time distribution records, and
(2)that Federal funds are not paying for personnel that the State should pay. Performance Measures for Issue 3.2 1. By March 30, 2003, all payroll registers will reflect the appropriate percentage split of time for staff funded by Federal programs. 2. By the final year of the Compliance Agreement, all time and attendance records will be computer-based and accurate. 3. By the final year of the Compliance Agreement, audits will find no instances of supplanting. Action Steps Required The following items were developed by VI staff at the December 2001 planning session and are presented here as action steps for inclusion in the plan to be developed under Action Step 1, Year 1 below. Time Distribution • Develop a policy & procedure in the assignment of time distribution percentage utilizing OMB Circular A-87. Make systematic adjustments as required. • Establish process to manage Quarterly Fluctuations to ensure adequate allocation of time distribution and employee certifications. • Conduct Job Analysis to determine allocations. • Policy and procedures created. • Policy approved and distributed. • Pre-audit test to determine compliance and adjustments needed. • Training and implementation of time distribution policy and procedure. • Ensure that the Department and Department of Interior
(DOI)approve the system and all related forms. • Accounting system will be changed to permit quarterly adjustment between budgeted and actual effort. • The Department and DOI will approve PAR and semi-annual certification forms. • Target an area selected for a pilot. • Train employees and supervisors in the target area. • Implement the program in the pilot area piloted and evaluate it. • Revise training and forms and accounting program based on the pilot evaluation. • Phase in other areas. Time and Attendance • Review and record current procedures relative to the documentation of time and attendance within VIDE to identify inconsistent applications of procedures. • Analyze result of review and recommend changes and/or improvements to current process to ensure the proper retrieval of time and attendance documents. • Activate system enhancement program to scan source document and payroll records to minimize record bulk and to facilitate the location of time and attendance documents and make recommendations regarding system upgrade for VI government. • Implement conversion to enhance system that will guarantee adequate documentation over employee time and attendance. (VIDE—Pilot Programs) Supplanting • Meeting/training between OMB, VIDE, the Department and auditors on specific program issues to identify maintenance of effort requirements and funding levels. Identify which positions are paid from which fund. Define basic service levels and optional programs in order to prevent supplanting issues. • Develop policy and procedures in accordance with OMB Circulars that would ensure that positions paid out of Federal funds would not reveal instances of supplanting. • Provide training regarding the implementation of procedures. • Implement policy. Year 1 Year 2 Year 3 1. By March 30, 2003, the VI will submit a revised plan to address issues related to time and attendance accounting and supplanting. The plan will specifically state how the time and attendance accounting procedures will be integrated with program related budgeting, financial management, planning, and personnel processes. At a minimum, the system will
(1)be computer-based and territory-wide,
(2)allocate time and attendance to specific programs,
(3)ensure that maintenance of effort and supplanting prohibitions in each statute are met and
(4)personnel records are properly archived and readily accessible. As part of the plan, the VI will benchmark other States' (such as Florida) systems and develop a time and attendance system that can accurately reflect time distribution across various programs 1. The time and attendance accounting plan will be implemented by March 30, 2004 1. Management reports showing all staff members paid with Federal funds and the distribution of their time by funding source will be submitted to the Department quarterly. 2. By September 30, 2002, the VI will develop an accurate list of employees whose time is paid in any part with Federal education funds. The list will identify each employee and the percentage of his/her time that is paid for by each Federal program. The list will be provided to the Department and to each supervisor of staff whose time is so paid 2. Management reports showing all staff members paid with Federal funds and the distribution of their time by funding source will be submitted to the Department quarterly for the duration of the Compliance Agreement beginning for the quarter ending June 30, 2004 3. By September 30, 2002, each supervisor of staff whose time is paid with Federal funds will inform the staff member about how his/her time is to be allocated and accounted for. The supervisor and the staff member will both sign a document that clearly states the time allocation for the staff member. A copy of each document will be provided to the Department as part of the first Compliance Agreement quarterly report Issue 4.0: Property Management and Procurement Issue Description Procurement and property management are related issues that result in students, and teachers not having the supplies and equipment that they need. Procurement is a problem because the process takes significant time and vendors have not been paid in a timely manner. As a result, vendors have been unwilling to do business with the VI, resulting in an inability to obtain needed supplies and equipment for students and teachers. Property management is a concern because purchased items do not get to classrooms in a timely manner, if at all. Property cannot be effectively tracked and may remain in warehouses, be delivered to incorrect locations, or be stolen rather than benefiting students and teachers in classrooms. The VI will develop and implement effective procurement and property management policies and systems that ensure
(1)delivery of ordered inventory within specified timeframes for type of supply and location of vendor,
(2)payment to vendors within 30 days of invoice receipt,
(3)delivery of supplies and equipment, that have been tagged and entered into a tracking system, to classrooms within 3 days of inventory receipt, and
(4)security of property and supplies. Sub-Issue 4.1: Property Management Sub-Issue Description The VI needs to improve its property inventory and repair/maintenance system. This is a major reason that classrooms are under equipped. Also, better security measures are needed to prevent the theft of vehicles, supplies and equipment. Through this Compliance Agreement, VI's manner of managing inventory will be such that items purchased with Federal program funds can be tracked, are distributed timely, and are used for the benefit of students. This system will comply with Federal regulations, to include tagging and tracking of inventory and prompt delivery of property purchased with Federal funds to the appropriate location, so that items may be used for the purposes of the program under which they were purchased. The inventory policy will include an established procedure for replacement or payback of any items in the inventory that cannot be located, consistent with Federal regulations. In addition, the inventory policy and system will ensure that the Property and Procurement, Finance, and Education Departments act as an integrated team on procurement issues. They will delineate between responsibilities of individual Departments (including at the local and State levels), ensure efficiency and eliminate duplication of effort, and make provisions for emergency needs to ensure students' health and safety. At a minimum, the inventory management system will reflect when items are ordered, when ordered items arrive, when items are logged into the system, and when they are delivered to the intended location. In addition, the VI will ensure that inappropriate use of equipment (for example, vehicles or computers) is penalized and that the Department is reimbursed when equipment damage results from such use. Performance Measures for Issue 4.0 and 4.1 1. The VI will provide the Department with an inventory policy and implementation plan of the inventory management system by June 30, 2003. 2. The VI will take immediate action to the extent possible to secure all property, in warehouses, schools, and other locations from larcenous behavior or inappropriate or unauthorized use. By June 30, 2003, the VI will complete all reasonable steps to secure all property, in warehouses, schools, and other locations from larcenous behavior or inappropriate or unauthorized use. 3. An inventory policy and system will be fully implemented by December 30, 2004. The policy and system will include that all property purchased with Federal program funds will be tagged, entered into a tracking system, and delivered to the appropriate location within 3 calendar days of receipt. 4. By March 31, 2005, all unaccounted-for items will either be returned to their intended locations, or their full value will be reimbursed to the Department. 5. By the end of the second year of the Compliance Agreement, the inventory management system will reflect minimal losses due to theft. 6. By the end of the Compliance Agreement, audits will show minimal unaccounted-for property. Action Steps Required In December 2001, VI staff members identified the action steps and timelines listed below to address inventory management issues. The table below provides further required action steps. • Issue memorandum from the Governor setting deadline and priority for all Departments to comply with WIN ASSETS Personal Property Inventory System. • VIDPP to issue supplemental guidance memorandum setting default values. • VIDPP to provide technical support for WIN ASSET SYSTEM. • Determine and seek funding for human and other resources needed to establish, maintain, inspect, test and reconcile data in WIN ASSETS System. • Determine individual departmental compliance with WIN ASSETS Personal Property Inventory System implementation deadline. By • Convert individual Department inventories to WIN ASSETS format (where necessary) and upload departmental data to VIDPP system. By • VIDPP to conduct meetings with individual Departments about the process for maintaining government-wide inventories on the WIN ASSETS system. • VIDPP to issue Inventory Management Procedures Manual. (Establishes ongoing procedures and timing for reporting acquisitions and dispositions—point at which assets are added to inventory, mandatory minimum fields for data entry, tagging and tracking assets, reconciling physical inventories to departmental purchase orders.) Ongoing. • Department of Finance to provide quarterly record of 25600 capital outlay expenditure reports. • VIDPP to reconcile FMS expenditures to WIN ASSETS inventory acquisitions quarterly. • VIDPP to conduct on site tests and tagging of personal property inventories submitted by individual Departments. Ongoing. • VIDPP MIS to periodically upload departmental inventories, analytically review data base for various governmental purposes and to test accuracy, modify program for departmental and program needs, maintain codes and data classification for changes in legislation and governmental reorganizations. Ongoing and quarterly. • VIDPP to conduct training on WIN ASSETS and inventory procedures for designated individuals from all Departments. Year 1 Year 2 Year 3 1. The VI will revise the steps and timelines of the plan above as they deem necessary and provide the Department with an inventory policy and implementation plan of the inventory management system by June 30, 2003. The VI will benchmark other States' inventory management policies and systems, or engage a consultant, to ensure that their planned policy and system will deliver intended results and that their implementation time lines are reasonable 1. By December 31, 2003, the VI will begin collecting data on items purchased with Federal funds from ED. On March 30, 2004 and every six months thereafter until the conclusion of the Compliance Agreement, the VI will provide the Department with management reports that show, at a minimum, all items ordered, when the items were ordered, when ordered items arrive, when the items were logged into the system, and when the items were delivered to the intended locations. Documents to verify the management reports, including copies of equipment and supply orders, vendor delivery statements, tracking data, and signed receipts showing delivery to schools, will accompany the management reports until the Department deems that such verification data are no longer necessary. 2. By June 30, 2003, the VI will secure all property, in warehouses, schools, and other locations from larcenous behavior or inappropriate or unauthorized use. Such steps will include controlling access to school buildings, property supply houses, and official vehicle parking lots, and controlling and tracking access to specific equipment. The VI may wish to benchmark inventory security procedures with other States, or to engage a contractor to supply or consult on security issues 2. Within three months after full deployment of the new inventory management system (and no later than December 31, 2004), the VI will provide the Department with a list of items paid for with Federal funds that are not in service in classrooms (i.e., lost, stolen, or improperly deployed items) 3. Within 6 months after full deployment of the new inventory management system (and no later than March 31, 2005), the VI will
(1)return improperly deployed, lost, or stolen items to their intended locations as possible,
(2)provide the Department with a report of items and their values that are still not properly in service in intended locations, and
(3)reimburse the Department for the items that have not been returned properly to service. The VI may wish to post a lost property notice in media outlets, and/or offer rewards for information leading to return of property 4. The inventory management system will be fully implemented by December 30, 2004 Sub-Issue 4.2: Competitive Procurement (Improved Process) Sub-Issue Description The current competitive procurement and contract process takes too long and does not ensure that vendors (contractors) for school services are hired and are paid on time. The VI will develop a new competitive procurement policy and process that ensures that school services, supplies, equipment and other necessary resources are provided and in classrooms when they are needed. The policy and process will also ensure that vendors are paid within 30 days of invoice receipt. In addition to the items noted above, the procurement management process will include procedures for flexible, timely contractual arrangements, sole source contracts, contract closeout activity, including receipt of goods certification, contracts release, and review of final payment. In December 2001, VI staff developed the time lines listed in the table below for procurement, vendor payments, and delivery of supplies or equipment to end users. The procurement policy and process will ensure that the time lines are met in all instances by the conclusion of the Compliance Agreement Procurements • Department of Education from central supply sources in 2 days—1 week. • On island purchases < $5,000 in 2 weeks. • On island purchases > $5,000 in 3 weeks after receipt by the Department of Property and Procurement. • Off island purchases < 3-4 weeks after receipt by the Department of Property and Procurement. • Off island delivery of purchased items < 2 months. Payment of Invoices • Payment of invoices after receipt of acceptable goods or services in 20—30 days. Delivery of Supplies or Equipment • Delivery of received items to school, activity center, or school district in 3 days from receipt. Performance Measures for Issue 4.2 1. The VI will provide the Department with a procurement policy and implementation plan of the procurement management process by June 30, 2003. 2. A procurement policy and process will be fully implemented by September 30, 2004. 3. By September 30, 2003, the VI will revise the system of requiring 3 bids for each and every item submitted on a requisition to reduce the time needed to obtain required items to meet the procurement time lines noted above. 4. By September 30, 2003, the VI will develop and maintain a short-term emergency by-pass authority/option for items that cost less than $10,000. 5. By the conclusion of the Compliance Agreement, the VI will receive all procurements purchased with Federal education program funds within the timeframes listed in the table above. 6. By the conclusion of the Compliance Agreement, the VI will pay vendors for all procurements related to education program within 30 days of receipt of the vendor's invoice. Action Steps Required In December 2001, VI staff members identified the following action steps and timelines to address competitive procurement issues and to meet the timelines listed in the table above. • Flow chart new process. • List key players and produce directory. • Convene working committee meetings (all stakeholders). Monthly and ongoing. • Develop effective document transmittal process, standardized forms, system changes specified, record retention policy, competition requirements, vendor certification and representations including eligibility, responsibilities redefined, personnel analysis, and reallocation recommendation. • Prepare new government policies, procedures, and regulations. • Review and approval of new policies, procedures and regulations. • Distribute and provide orientation to stakeholders on new policies, procedures, and regulations. • Establish improved interagency communication and commitment. • Hire needed personnel. • Train all stakeholders and responsible personnel. • Build accountability and timelines into personnel system. • Pilot implementation of new policies, procedures, & regulations. • Full implementation of new policies, procedures & regulations. • Fully automate requisition, purchase order, and contract writing process. • Conduct periodic process review, identifying deficiencies and implementing continuous improvement actions. Ongoing. • Full and effective implementation of new process. Ongoing. • Establish review protocol for contracts such that VIOG and VIDJ review only selected contracts. Year 1 Year 2 Year 3 1. The VI will revise the steps and timelines of the December 2001 plan as they deem necessary and provide the Department with a procurement policy and implementation plan of the procurement management process by September 30, 2003 1. The procurement management process will be fully implemented by September 30, 2004 1. VI's procurement policy and process will meet the time lines for procurement, vendor payments, and delivery of supplies or equipment to end users by the conclusion of the Compliance Agreement. 2. At the start of the Compliance Agreement, the VI will begin collecting data on items procured for education programs to develop baseline measures of the procurement process 2. By June 30, 2003, the VI will revise the system of requiring 3 bids for each and every item submitted on a requisition to reduce the time needed to obtain required items to meet the procurement time lines noted above 3. By June 30, 2003, the VI will develop and maintain a short-term emergency by-pass authority/option for items that cost less than $10,000 The parties agree to faithfully carry out the terms of this compliance agreement as set forth above. For the U.S. Virgin Islands: Dated: September 5, 2002. _______/s/_______ Noreen Michael, PhD *Commissioner, Department of Education* Dated: September 6, 2002. _______/s/_______ Mavis L. Matthew, MD, MPH *Commissioner, Department of Health* Dated: September 5, 2002. _______/s/_______ Bernice A. Turnbull *Commissioner, Department of Finance* Dated: September 4, 2002. _______/s/_______ Ira Mills *Director, Office of Management and Budget* Dated: September 6, 2002. _______/s/_______ Marc A. Biggs *Commissioner, Department of Property and Procurement* Dated: September 4, 2002. _______/s/_______ Joanne U. Barry *Director, Division of Personnel* Dated: September 6, 2002. _______/s/_______ Jorge A. Galiber, M.D. *Virgin Islands Board of Education* Dated: September 6, 2002. _______/s/_______ Eddie Williams *Virgin Islands Board of Vocational Education* Dated: September 6, 2002. _______/s/_______ Charles W. Turnbull *Governor of the Virgin Islands* Approved as to legal sufficiency at the V.I. Department of Justice: Dated: September 3, 2002. _______/s/_______ Iver A. Stridiron *Attorney General* For the U.S. Department of Education: Dated: September 23, 2002. Office of the Chief Financial Officer _______/s/_______ Jack Martin, *Chief Financial Officer* Office of Special Education and Rehabilitative Services _______/s/_______ Robert H. Pasternack, PhD *Assistant Secretary* Office of Vocational and Adult Education _______/s/_______ Carol D'Amico, *Assistant Secretary* Office of Elementary and Secondary Education _______/s/_______ Susan B. Neuman, EdD *Assistant Secretary* Office of English Language Acquisition, Language Enhancement, and Academic Achievement for Limited English Proficient Students _______/s/_______ Maria Hernandez Ferrier, EdD *Director* [FR Doc. E7-20847 Filed 10-22-07; 8:45 am] BILLING CODE 4000-01-P 72 204 Tuesday, October 23, 2007 Presidential Documents Part VII The President Executive Order 13448—Blocking Property and Prohibiting Certain Transactions Related to Burma Title 3— The President Executive Order 13448 of October 18, 2007 Blocking Property and Prohibiting Certain Transactions Related to Burma By the authority vested in me as President by the Constitution and the laws of the United States of America, including the International Emergency Economic Powers Act (50 U.S.C. 1701 *et seq* .) (IEEPA), the National Emergencies Act (50 U.S.C. 1601 *et seq* .), the Burmese Freedom and Democracy Act of 2003 (Public Law 108-61, as amended, 50 U.S.C. 1701 note), and section 301 of title 3, United States Code, and in order to take additional steps with respect to the Government of Burma's continued repression of the democratic opposition in Burma, I, GEORGE W. BUSH, President of the United States of America, hereby expand the scope of the national emergency declared in Executive Order 13047 of May 20, 1997, and relied upon for additional steps taken in Executive Order 13310 of July 28, 2003, finding that the Government of Burma's continued repression of the democratic opposition in Burma, manifested most recently in the violent response to peaceful demonstrations, the commission of human rights abuses related to political repression, and engagement in public corruption, including by diverting or misusing Burmese public assets or by misusing public authority, constitute an unusual and extraordinary threat to the national security and foreign policy of the United States, and I hereby order: **Section 1.** Except to the extent provided in section 203(b)(1), (3), and
(4)of IEEPA (50 U.S.C. 1702(b)(1), (3), and (4)), the Trade Sanctions Reform and Export Enhancement Act of 2000 (title IX, Public Law 106-387), or regulations, orders, directives, or licenses that may be issued pursuant to this order, and notwithstanding any contract entered into or any license or permit granted prior to the effective date of this order, all property and interests in property of the following persons that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of United States persons, including their overseas branches, are blocked and may not be transferred, paid, exported, withdrawn, or otherwise dealt in:
(a)the persons listed in the Annex attached and made a part of this order; and
(b)any person determined by the Secretary of the Treasury, after consultation with the Secretary of State:
(i)to be a senior official of the Government of Burma, the State Peace and Development Council of Burma, the Union Solidarity and Development Association of Burma, or any successor entity to any of the foregoing;
(ii)to be responsible for, or to have participated in, human rights abuses related to political repression in Burma;
(iii)to be engaged, or to have engaged, in activities facilitating public corruption by senior officials of the Government of Burma;
(iv)to have materially assisted, sponsored, or provided financial, material, logistical, or technical support for, or goods or services in support of, the Government of Burma, the State Peace and Development Council of Burma, the Union Solidarity and Development Association of Burma, any successor entity to any of the foregoing, any senior official of any of the foregoing, or any person whose property and interests in property are blocked pursuant to Executive Order 13310 or section 1(b)(i)-(v) of this order;
(v)to be owned or controlled by, or to have acted or purported to act for or on behalf of, directly or indirectly, any person whose property and interests in property are blocked pursuant to Executive Order 13310 or section 1(b)(i)-(v) of this order; or
(vi)to be a spouse or dependent child of any person whose property and interests in property are blocked pursuant to this order or Executive Order 13310. **Sec. 2.**
(a)Any transaction by a United States person or within the United States that evades or avoids, has the purpose of evading or avoiding, or attempts to violate any of the prohibitions set forth in this order is prohibited.
(b)Any conspiracy formed to violate any of the prohibitions set forth in this order is prohibited. **Sec. 3.** For purposes of this order:
(a)the term “person” means an individual or entity;
(b)the term “entity” means a partnership, association, trust, joint venture, corporation, group, subgroup, or other organization;
(c)the term “United States person” means any United States citizen, permanent resident alien, entity organized under the laws of the United States or any jurisdiction within the United States (including foreign branches), or any person in the United States; and
(d)the term “Government of Burma” means the Government of Burma (sometimes referred to as Myanmar), its agencies, instrumentalities and controlled entities, and the Central Bank of Burma. **Sec. 4.** I hereby determine that the making of donations of the type specified in section 203(b)(2) of IEEPA (50 U.S.C. 1702(b)(2)) by, to, or for the benefit of, persons whose property and interests in property are blocked pursuant to section 1 of this order would seriously impair my ability to deal with the national emergency declared in Executive Order 13047, and relied upon for additional steps taken in Executive Order 13310, and expanded in this order, and hereby prohibit such donations as provided by section 1 of this order. **Sec. 5.** For those persons whose property and interests in property are blocked pursuant to section 1 of this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render these measures ineffectual. I therefore determine that for these measures to be effective in addressing the national emergency declared in Executive Order 13047, and relied upon for additional steps taken in Executive Order 13310, and expanded in this order, there need be no prior notice of a listing or determination made pursuant to this order. **Sec. 6.** The Secretary of the Treasury, after consultation with the Secretary of State, is hereby authorized to take such actions, including the promulgation of rules and regulations, and to employ all powers granted to the President by IEEPA and section 4 of the Burmese Freedom and Democracy Act of 2003 as may be necessary to carry out the purposes of this order. The Secretary of the Treasury may redelegate any of these functions to other officers and agencies of the United States Government consistent with applicable law. All agencies of the United States Government are hereby directed to take all appropriate measures within their authority to carry out the provisions of this order. **Sec. 7.** The Secretary of the Treasury, after consultation with the Secretary of State, is authorized to determine, subsequent to the effective date of this order, that circumstances no longer warrant inclusion of a person in the Annex to this order and that the property and interests in property of that person are therefore no longer blocked pursuant to section 1 of this order. **Sec. 8.** Nothing in this order is intended to affect the continued effectiveness of any rules, regulations, orders, licenses, or other forms of administrative action issued, taken, or continued in effect heretofore or hereafter under 31 C.F.R. chapter V, except as expressly terminated, modified, or suspended by or pursuant to this order. **Sec. 9.** This order is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, instrumentalities, or entities, its officers or employees, or any other person. **Sec. 10.** This order is effective at 12:01 a.m. eastern daylight time on October 19, 2007. GWBOLD.EPS THE WHITE HOUSE, October 18, 2007. Billing code 3195-01-P Ed23OC07.025 [FR Doc. 07-5270 Filed 10-22-07; 9:14 am]
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U.S. Code
34 references not yet in our index
  • 10 CFR 609
  • 42 USC 16511-16514
  • Pub. L. 110-5
  • Pub. L. 93-577
  • 42 USC 5919
  • Pub. L. 109-58
  • 10 CFR 1021
  • 5 CFR 1320.1
  • Pub. L. 105-277
  • 48 CFR 9.4
  • 2 CFR 180
  • 5 CFR 6.1
  • 5 USC 5351-5356
  • Pub. L. 91-452
  • 5 CFR 302
  • Pub. L. 95-565
  • Pub. L. 95-250
  • Pub. L. 100-687
  • 42 USC 1855-1855g
  • Pub. L. 93-288
  • 5 CFR 213.3202(a)
  • Pub. L. 93-842
  • 5 CFR 213.3202(b)
  • Pub. L. 105-339
  • 5 CFR 213.3202(o)
  • EO 12230
  • 3 CFR 1954
  • 34 CFR 80.12
  • 20 USC 9201
  • 34 CFR 80.36
  • 34 CFR 76.125-76
  • 34 CFR 80.12(a)
  • Pub. L. 108-61
  • Pub. L. 106-387
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U.S.C.§ 16513
U.S.C.§ 16512
U.S.C.§ 16511
U.S.C.§ 661c
U.S.C.§ 103
Cite10 CFR 609
Cite42 USC 16511-16514
Pub. L.Pub. L. 110-5
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