Last updated on September 5th, 2024 at 06:59 pm
Title 10—Energy–Volume 3
CHAPTER II—DEPARTMENT OF ENERGY
SUBCHAPTER A—OIL
PARTS 200-201 [RESERVED]
PART 202—PRODUCTION OR DISCLOSURE OF MATERIAL OR INFORMATION
Subpart A [Reserved]
Subpart B—Production or Disclosure in Response to Subpoenas or Demands of Courts or Other Authorities
§ 202.21 Purpose and scope.
(a) This subpart sets forth the procedures to be followed when a subpoena, order, or other demand (hereinafter referred to as a “demand”) of a court or other authority is issued for the production or disclosure of (1) any material contained in the files of the Department of Energy (DOE), (2) any information relating to material contained in the files of the DOE, or (3) any information or material acquired by any person while such person was an employee of the DOE as a part of the performance of his official duties or because of his official status.
(b) For purposes of this subpart, the term “Employee of the DOE” includes all officers and employees of the United States appointed by, or subject to the supervision, jurisdiction, or control of, the Administrator of DOE.
§ 202.22 Production or disclosure prohibited unless approved by appropriate DOE official.
No employee or former employee of the DOE shall, in response to a demand of a court or other authority, produce any material contained in the file of the DOE or disclose any information relating to material contained in the files of the DOE, or disclose any information or produce any material acquired as part of the performance of his official duties or because of his official status without prior approval of the General Counsel of DOE.
§ 202.23 Procedure in the event of a demand for production or disclosure.
(a) Whenever a demand is made upon an employee or former employee of the DOE for the production of material or the disclosure of information described in § 202.21(a), he shall immediately notify the Regional Counsel for the region where the issuing authority is located. The Regional Counsel shall immediately request instructions from the General Counsel of DOE.
(b) If oral testimony is sought by the demand, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or his attorney, setting forth a summary of the testimony desired, must be furnished for submission by the Regional Counsel to the General Counsel.
§ 202.24 Final action by the appropriate DOE official.
If the General Counsel approves a demand for the production of material or disclosure of information, he shall so notify the Regional Counsel and such other persons as circumstances may warrant.
§ 202.25 Procedure where a decision concerning a demand is not made prior to the time a response to the demand is required.
If response to the demand is required before the instructions from the General Counsel are received, a U.S. attorney or DOE attorney designated for the purpose shall appear with the employee or former employee of the DOE upon whom the demand has been made, and shall furnish the court or other authority with a copy of the regulations contained in this subpart and inform the court or other authority that the demand has been, or is being, as the case may be, referred for the prompt consideration of the appropriate DOE official and shall respectfully request the court or authority to stay the demand pending receipt of the requested instructions.
§ 202.26 Procedure in the event of an adverse ruling.
If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 202.25 pending receipt of instructions, of if the court or other authority rules that the demand must be complied with irrespective of instructions not to produce the material or disclose the information sought, the employee or former employee upon whom the demand has been made shall respectfully decline to comply with the demand. “United States ex rel Touhy v. Ragen,” 340 U.S. 462.
PART 205—ADMINISTRATIVE PROCEDURES AND SANCTIONS
Subpart A—General Provisions
§ 205.1 Purpose and scope.
This part establishes the procedures to be utilized and identifies the sanctions that are available in proceedings before the Department of Energy and State Offices, in accordance with parts 209 through 214 of this chapter. Any exception, exemption, appeal, stay, modification, recession, redress or resolution of private grievance sought under the authority of 42 U.S.C. 7194 shall be governed by the procedural rules set forth in 10 CFR part 1003.
§ 205.2 Definitions.
The definitions set forth in other parts of this chapter shall apply to this part, unless otherwise provided. In addition, as used in this part, the term:
Action means an order, interpretation, notice of probable violation or ruling issued, or a rulemaking undertaken by the DOE or, as appropriate, by a State Office.
Adjustment means a modification of the base period volume or other measure of allocation entitlement in accordance with part 211 of this chapter.
Aggrieved, for purposes of administrative proceedings, describes and means a person with an interest sought to be protected under the FEAA, EPAA, or Proclamation No. 3279, as amended, who is adversely affected by an order or interpretation issued by the DOE or a State Office.
Appropriate Regional Office or appropriate State Office means the office located in the State or DOE region in which the product will be physically delivered.
Assignment means an action designating that an authorized purchaser be supplied at a specified entitlement level by a specified supplier.
Conference means an informal meeting, incident to any proceeding, between DOE or State officials and any person aggrieved by that proceeding.
Consent order means a document of agreement between DOE and a person prohibiting certain acts, requiring the performance of specific acts or including any acts which DOE could prohibit or require pursuant to § 205.195.
Duly authorized representative means a person who has been designated to appear before the DOE or a State Office in connection with a proceeding on behalf of a person interested in or aggrieved by that proceeding. Such appearance may consist of the submission of applications, petitions, requests, statements, memoranda of law, other documents, or of a personal appearance, verbal communication, or any other participation in the proceeding.
EPAA means the Emergency Petroleum Allocation Act of 1973 (Pub. L. 93-159).
EPCA means the Energy Policy and Conservation Act (Pub. L. 94-163).
Exception means the waiver or modification of the requirements of a regulation, ruling or generally applicable requirement under a specific set of facts.
Exemption means the release from the obligation to comply with any part or parts, or any subpart thereof, of this chapter.
DOE means the Department of Energy, created by the FEAA and includes the DOE National Office and Regional Offices.
FEAA means the Federal Energy Administration Act of 1974 (Pub. L. 93-275).
Federal legal holiday means New Year’s Day, Washington’s Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, Christmas Day, and any other day appointed as a national holiday by the President or the Congress of the United States.
Interpretation means a written statement issued by the General Counsel or his delegate or Regional Counsel, in response to a written request, that applies the regulations, rulings, and other precedents previously issued, to the particular facts of a prospective or completed act or transaction.
Notice of probable violation means a written statement issued to a person by the DOE that states one or more alleged violations of the provisions of this chapter or any order issued pursuant thereto.
Order means a written directive or verbal communication of a written directive, if promptly confirmed in writing, issued by the DOE or a State Office. It may be issued in response to an application, petition or request for DOE action or in response to an appeal from an order, or it may be a remedial order or other directive issued by the DOE or a State Office on its own initiative. A notice of probable violation is not an order. For purposes of this definition a “written directive” shall include telegrams, telecopies and similar transcriptions.
Person means any individual, firm, estate, trust, sole proprietorship, partnership, association, company, joint-venture, corporation, governmental unit or instrumentality thereof, or a charitable, educational or other institution, and includes any officer, director, owner or duly authorized representative thereof.
Proceeding means the process and activity, and any part thereof, instituted by the DOE or a State Office, either on its own initiative or in response to an application, complaint, petition or request submitted by a person, that may lead to an action by the DOE or a State Office.
Remedial order means a directive issued by the DOE requiring a person to cease a violation or to eliminate or to compensate for the effects of a violation, or both.
Ruling means an official interpretative statement of general applicability issued by the DOE General Counsel and published in the
State Office means a State Office of Petroleum Allocation certified by the DOE upon application pursuant to part 211 of this chapter.
Throughout this part the use of a word or term in the singular shall include the plural and the use of the male gender shall include the female gender.
§ 205.3 Appearance before the DOE or a State Office.
(a) A person may make an appearance, including personal appearances in the discretion of the DOE, and participate in any proceeding described in this part on his own behalf or by a duly authorized representative. Any application, appeal, petition, request or complaint filed by a duly authorized representative shall contain a statement by such person certifying that he is a duly authorized representative, unless a DOE form requires otherwise. Falsification of such certification will subject such person to the sanctions stated in 18 U.S.C. 1001 (1970).
(b) Suspension and disqualification: The DOE or a State Office may deny, temporarily or permanently, the privilege of participating in proceedings, including oral presentation, to any individual who is found by the DOE—
(1) To have made false or misleading statements, either verbally or in writing;
(2) To have filed false or materially altered documents, affidavits or other writings;
(3) To lack the specific authority to represent the person seeking a DOE or State Office action; or
(4) To have engaged in or to be engaged in contumacious conduct that substantially disrupts a proceeding.
§ 205.4 Filing of documents.
(a) Any document, including, but not limited to, an application, request, complaint, petition and other documents submitted in connection therewith, filed with the DOE or a State Office under this chapter is considered to be filed when it has been received by the DOE National Office, a Regional Office or a State Office. Documents transmitted to the DOE must be addressed as required by § 205.12. All documents and exhibits submitted become part of an DOE or a State Office file and will not be returned.
(b) Notwithstanding the provisions of paragraph (a) of this section, an appeal, a response to a denial of an appeal or application for modification or recision in accordance with §§ 205.106(a)(3) and 205.135(a)(3), respectively, a reply to a notice of probable violation, the appeal of a remedial order or remedial order for immediate compliance, a response to denial of a claim of confidentiality, or a comment submitted in connection with any proceeding transmitted by registered or certified mail and addressed to the appropriate office is considered to be filed upon mailing.
(c) Hand-delivered documents to be filed with the Office of Exceptions and Appeals shall be submitted to Room 8002 at 2000 M Street, NW., Washington, D.C. All other hand-delivered documents to be filed with the DOE National Office shall be submitted to the Executive Secretariat at 12th and Pennsylvania Avenue, NW., Washington, D.C. Hand-delivered documents to be filed with a Regional Office shall be submitted to the Office of the Regional Administrator. Hand-delivered documents to be filed with a State Office shall be submitted to the office of the chief executive officer of such office.
(d) Documents received after regular business hours are deemed filed on the next regular business day. Regular business hours for the DOE National Office are 8 a.m. to 4:30 p.m. Regular business hours for a Regional Office or a State Office shall be established independently by each.
§ 205.5 Computation of time.
(a) Days. (1) Except as provided in paragraph (b) of this section, in computing any period of time prescribed or allowed by these regulations or by an order of the DOE or a State Office, the day of the act, event, or default from which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or Federal legal holiday in which event the period runs until the end of the next day that is neither a Saturday, Sunday, nor a Federal legal holiday.
(2) Saturdays, Sundays or intervening Federal legal holidays shall be excluded from the computation of time when the period of time allowed or prescribed is 7 days or less.
(b) Hours. If the period of time prescribed in an order issued by the DOE or a State Office is stated in hours rather than days, the period of time shall begin to run upon actual notice of such order, whether by verbal or written communication, to the person directly affected, and shall run without interruption, unless otherwise provided in the order, or unless the order is stayed, modified, suspended or rescinded. When a written order is transmitted by verbal communication, the written order shall be served as soon thereafter as is feasible.
(c) Additional time after service by mail. Whenever a person is required to perform an act, to cease and desist therefrom, or to initiate a proceeding under this part within a prescribed period of time after issuance to such person of an order, notice, interpretation or other document and the order, notice, interpretation or other document is served by mail, 3 days shall be added to the prescribed period.
§ 205.6 Extension of time.
When a document is required to be filed within a prescribed time, an extension of time to file may be granted by the office with which the document is required to be filed upon good cause shown.
§ 205.7 Service.
(a) All orders, notices, interpretations or other documents required to be served under this part shall be served personally or by registered or certified mail or by regular United States mail (only when service is effected by the DOE or a State Office), except as otherwise provided.
(b) Service upon a person’s duly authorized representative shall constitute service upon that person.
(c) Service by registered or certified mail is complete upon mailing. Official United States Postal Service receipts from such registered or certified mailing shall constitute prima facie evidence of service.
§ 205.8 Subpoenas, special report orders, oaths, witnesses.
(a) In this section the following terms have the definitions indicated unless otherwise provided.
(1) “DOE Official” means the Secretary of the Department of Energy, the Administrator of the Economic Regulatory Administration, the Administrator of Energy Information Administration, the General Counsel of the Department of Energy, the Special Counsel for Compliance, the Assistant Administrator for Enforcement, the Director of the Office of Hearings and Appeals, or the duly authorized delegate of any of the foregoing officials.
(2) “SRO” means a Special Report Order issued pursuant to paragraph (b) of this section.
(b) (1) In accordance with the provisions of this section and as otherwise authorized by law, a DOE Official may sign, issue and serve subpoenas; administer oaths and affirmations; take sworn testimony; compel attendance of and sequester witnesses; control dissemination of any record of testimony taken pursuant to this section; subpoena and reproduce books, papers, correspondence, memoranda, contracts agreements, or other relevant records or tangible evidence including, but not limited to, information retained in computerized or other automated systems in possession of the subpoenaed person. Unless otherwise provided by subpart O, the provisions of this section apply to subpoenas issued by the office of Hearings and Appeals with respect to matters in proceedings before it.
(2) A DOE Official may issue a Special Report Order requiring any person subject to the jurisdiction of the ERA to file a special report providing information relating to DOE regulations, including but not limited to written answers to specific questions. The SRO may be in addition to any other reports required by this chapter.
(3) The DOE Official who issues a subpoena or SRO pursuant to this section, for good cause shown, may extend the time prescribed for compliance with the subpoena or SRO and negotiate and approve the terms of satisfactory compliance.
(4) Prior to the time specified for compliance, but in no event more than 10 days after the date of service of the subpoena or SRO, the person upon whom the document was served may file a request for review of the subpoena or SRO with the DOE Official who issued the document. The DOE Official then shall forward the request to his supervisor who shall provide notice of receipt to the person requesting review. The supervisor or his designee may extend the time prescribed for compliance with the subpoena or SRO and negotiate and approve the terms of satisfactory compliance.
(5) If the subpoena or SRO is not modified or rescinded within 10 days of the date of the supervisor’s notice of receipt,
(i) the subpoena or SRO shall be effective as issued; and
(ii) the person upon whom the document was served shall comply with the subpoena or SRO within 20 days of the date of the supervisor’s notice of receipt, unless otherwise notified in writing by the supervisor or his designee.
(6) There is no administrative appeal of a subpoena or SRO.
(c) (1) A subpoena or SRO shall be served upon a person named in the document by delivering a copy of the document to the person named.
(2) Delivery of a copy of the document to a natural person may be made by:
(i) Handing it to the person;
(ii) Leaving it at the person’s office with the person in charge of the office;
(iii) Leaving it at the person’s dwelling or usual place of abode with a person of suitable age and discretion who resides there;
(iv) Mailing it to the person by registered or certified mail, at his last known address; or
(v) Any method that provides the person with actual notice prior to the return date of the document.
(3) Delivery of a copy of the document to a person who is not a natural person may be made by:
(i) Handing it to a registered agent of the person;
(ii) Handing it to any officer, director, or agent in charge of any office of such person;
(iii) Mailing it to the last known address of any registered agent, officer, director, or agent in charge of any office of the person by registered or certified mail, or
(iv) Any method that provides any registered agent, officer, director, or agent in charge of any office of the person with actual notice of the document prior to the return date of the document.
(d)(1) A witness subpoenaed by the DOE shall be paid the same fees and mileage as paid to a witness in the district courts of the United States.
(2) If in the course of a proceeding conducted pursuant to subpart M or O, a subpoena is issued at the request of a person other than an officer or agency of the United States, the witness fees and mileage shall be paid by the person who requested the subpoena. However, at the request of the person, the witness fees and mileage shall be paid by the DOE if the person shows:
(i) The presence of the subpoenaed witness will materially advance the proceeding; and
(ii) The person who requested that the subpoena be issued would suffer a serious hardship if required to pay the witness fees and mileage. The DOE Official issuing the subpoena shall make the determination required by this subsection.
(e) If any person upon whom a subpoena or SRO is served pursuant to this section, refuses or fails to comply with any provision of the subpoena or SRO, an action may be commenced in the United States District Court to enforce the subpoena or SRO.
(f) (1) Documents produced in response to a subpoena shall be accompanied by the sworn certification, under penalty of perjury, of the person to whom the subpoena was directed or his authorized agent that (i) a diligent search has been made for each document responsive to the subpoena, and (ii) to the best of his knowledge, information, and belief each document responsive to the subpoena is being produced unless withheld on the grounds of privilege pursuant to paragraph (g) of this section.
(2) Any information furnished in response to an SRO shall be accompanied by the sworn certification under penalty of perjury of the person to whom it was directed or his authorized agent who actually provides the information that (i) a diligent effort has been made to provide all information required by the SRO, and (ii) all information furnished is true, complete, and correct unless withheld on grounds of privilege pursuant to paragraph (g) of this section.
(3) If any document responsive to a subpoena is not produced or any information required by an SRO is not furnished, the certification shall include a statement setting forth every reason for failing to comply with the subpoena or SRO.
(g) If a person to whom a subpoena or SRO is directed withholds any document or information because of a claim of attorney-client or other privilege, the person submitting the certification required by paragraph (f) of this section also shall submit a written list of the documents or the information withheld indicating a description of each document or information, the date of the document, each person shown on the document as having received a copy of the document, each person shown on the document as having prepared or been sent the document, the privilege relied upon as the basis for withholding the document or information, and an identification of the person whose privilege is being asserted.
(h)(1) If testimony is taken pursuant to a subpoena, the DOE Official shall determine whether the testimony shall be recorded and the means by which the testimony is recorded.
(2) A witness whose testimony is recorded may procure a copy of his testimony by making a written request for a copy and paying the appropriate fees. However, the DOE official may deny the request for good cause. Upon proper identification, any witness or his attorney has the right to inspect the official transcript of the witness’ own testimony.
(i) The DOE Official may sequester any person subpoenaed to furnish documents or give testimony. Unless permitted by the DOE Official, neither a witness nor his attorney shall be present during the examination of any other witnesses.
(j)(1) Any witness whose testimony is taken may be accompanied, represented and advised by his attorney as follows:
(i) Upon the initiative of the attorney or witness, the attorney may advise his client, in confidence, with respect to the question asked his client, and if the witness refuses to answer any question, the witness or his attorney is required to briefly state the legal grounds for such refusal; and
(ii) If the witness claims a privilege to refuse to answer a question on the grounds of self-incrimination, the witness must assert the privilege personally.
(k) The DOE Official shall take all necessary action to regulate the course of testimony and to avoid delay and prevent or restrain contemptuous or obstructionist conduct or contemptuous language. DOE may take actions as the circumstances may warrant in regard to any instances where any attorney refuses to comply with directions or provisions of this section.
§ 205.9 General filing requirements.
(a) Purpose and scope. The provisions of this section shall apply to all documents required or permitted to be filed with the DOE or with a State Office.
(b) Signing. All applications, petitions, requests, appeals, comments or any other documents that are required to be signed, shall be signed by the person filing the document or a duly authorized representative. Any application, appeal, petition, request, complaint or other document filed by a duly authorized representative shall contain a statement by such person certifying that he is a duly authorized representative, unless an DOE form other wise requires. (A false certification is unlawful under the provisions of 18 U.S.C. 1001 (1970)).
(c) Labeling. An application, petition, or other request for action by the DOE or a State Office should be clearly labeled according to the nature of the action involved (e.g., “Application for Assignment”) both on the document and on the outside of the envelope in which the document is transmitted.
(d) Obligation to supply information. A person who files an application, petition, complaint, appeal or other request for action is under a continuing obligation during the proceeding to provide the DOE or a State Office with any new or newly discovered information that is relevant to that proceeding. Such information includes, but is not limited to, information regarding any other application, petition, complaint, appeal or request for action that is subsequently filed by that person with any DOE office or State Office.
(e) The same or related matters. A person who files an application, petition, complaint, appeal or other request for action by the DOE or a State Office shall state whether, to the best knowledge of that person, the same or related issue, act or transaction has been or presently is being considered or investigated by any DOE office, other Federal agency, department or instrumentality; or by a State Office, a state or municipal agency or court; or by any law enforcement agency; including, but not limited to, a consideration or investigation in connection with any proceeding described in this part. In addition, the person shall state whether contact has been made by the person or one acting on his behalf with any person who is employed by the DOE or any State Office with regard to the same issue, act or transaction or a related issue, act or transaction arising out of the same factual situation; the name of the person contacted; whether the contact was verbal or in writing; the nature and substance of the contact; and the date or dates of the contact.
(f) Request for confidential treatment. (1) If any person filing a document with the DOE or a State Office claims that some or all the information contained in the document is exempt from the mandatory public disclosure requirements of the Freedom of Information Act (5 U.S.C. 552 (1970)), is information referred to in 18 U.S.C. 1905 (1970), or is otherwise exempt by law from public disclosure, and if such person requests the DOE or a State Office not to disclose such information, such person shall file together with the document a second copy of the document from which has been deleted the information for which such person wishes to claim confidential treatment. The person shall indicate in the original document that it is confidential or contains confidential information and may file a statement specifying the justification for non-disclosure of the information for which confidential treatment is claimed. If the person states that the information comes within the exception in 5 U.S.C. 552(b)(4) for trade secrets and commercial or financial information, such person shall include a statement specifying why such information is privileged or confidential. If the person filing a document does not submit a second copy of the document with the confidential information deleted, the DOE or a State Office may assume that there is no objection to public disclosure of the document in its entirety.
(2) The DOE or a State Office retains the right to make its own determination with regard to any claim of confidentiality. Notice of the decision by the DOE or a State Office to deny such claim, in whole or in part, and an opportunity to respond shall be given to a person claiming confidentiality of information no less than five days prior to its public disclosure.
(g) Separate applications, petitions or requests. Each application, petition or request for DOE action shall be submitted as a separate document, even if the applications, petitions, or requests deal with the same or a related issue, act or transaction, or are submitted in connection with the same proceeding.
§ 205.10 Effective date of orders.
Any order issued by the DOE or a State Office under this chapter is effective as against all persons having actual notice thereof upon issuance, in accordance with its terms, unless and until it is stayed, modified, suspended, or rescinded. An order is deemed to be issued on the date, as specified in the order, on which it is signed by an authorized representative of the DOE or a State Office, unless the order provides otherwise.
§ 205.11 Order of precedence.
(a) If there is any conflict or inconsistency between the provisions of this part and any other provision of this chapter, the provisions of this part shall control with respect to procedure.
(b) Notwithstanding paragraph (a) of this section, subpart I of part 212 of this chapter shall control with respect to prenotification and reporting and subpart J of part 212 of this chapter shall control with respect to accounting and financial reporting requirements.
§ 205.12 Addresses for filing documents with the DOE.
(a) All applications, requests, petitions, appeals, reports, DOE or FEO forms, written communications and other documents to be submitted to or filed with the DOE National Office in accordance with this chapter shall be addressed as provided in this section. The DOE National Office has facilities for the receipt of transmissions via TWX and FAX. The FAX is a 3M full duplex 4 or 6 minute (automatic) machine.
| FAX Numbers | TWX Numbers |
|---|---|
| (202) 254-6175 | (701) 822-9454 |
| (202) 254-6461 | (701) 822-9459 |
(1) Documents for which a specific address and/or code number is not provided in accordance with paragraphs (a)(2) through (7) of this section, shall be addressed as follows: Department of Energy, Attn: (name of person to receive document, if known, or subject), Washington, DC 20461.
(2) Documents to be filed with the Office of Exceptions and Appeals, as provided in this part or otherwise, shall be addressed as follows. Office of Exceptions and Appeals, Department of Energy, Attn: (name of person to receive document, if known, and/or labeling as specified in § 205.9(c)), Washington, DC 20461.
(3) Documents to be filed with the Office of General Counsel, as provided in this part or otherwise, shall be addressed as follows: Office of the General Counsel, U.S. Department of Energy, Attn: (name of person to receive document, if known, and labeling as specified in § 205.9(c)), 1000 Independence Avenue, Washington, DC 20585.
(4) Documents to be filed with the Office of Private Grievances and Redress, as provided in this part or otherwise, shall be addressed as follows: Office of Private Grievances and Redress, Department of Energy, Attn: (name of person to receive document, if known and/or labeling as specified in § 205.9(c)), Washington, DC 20461.
(5) All other documents filed, except those concerning price (see paragraph (a)(6) of this section), those designated as DOE or FEO forms (see paragraph (a)(7) of this section), and “Surplus Product Reports” (see paragraph (a)(8) of this section), but including those pertaining to compliance and allocation (adjustment and assignment) of allocated products, are to be identified by one of the code numbers stated below and addressed as follows: Department of Energy, Code____, labeling as specified in § 205.9(c), Washington, DC 20461.
Code Numbers
| Code | |
|---|---|
| Product: | |
| Crude oil | 10 |
| Naphtha and gas oil | 15 |
| Propane, butane and natural gasoline | 25 |
| Other products | 30 |
| Bunker fuel | 40 |
| Residual fuel (nonutility) | 50 |
| Motor gasoline | 60 |
| Middle distillates | 70 |
| Aviation fuels | 80 |
| Submissions by specific entities: | |
| Electric utilities | 45 |
| Department of Defense | 55 |
(6) Documents pertaining to the price of covered products, except those to be submitted to other offices as provided in this part, shall be addressed to the Department of Energy, Code 1000, Attn: (name of person to receive document, if known, and/or labeling as specified in § 205.9(c)), Washington, DC 20461.
(7) Documents designated as DOE or FEO forms shall be submitted in accordance with the instructions stated in the form.
(8) “Surplus Product Reports” shall be submitted to the Department of Energy, Post Office Box 19407, Washington, DC 20036.
(9) Documents to be filed with the Director of Oil Imports, as provided in this part or otherwise, shall be addressed as follows: Director of Oil Imports, Department of Energy, P.O. Box 7414, Washington, DC 20044.
(10) Petitions for rulemaking to be filed with the Economic Regulatory Administration National Office shall be addressed as follows: Economic Regulatory Administration, Attn: Assistant Administrator for Regulations and Emergency Planning (labeled as “Petition for Rulemaking,”) 2000 M Street, N.W., Washington, DC 20461.
(b) All reports, applications, requests, notices, complaints, written communications and other documents to be submitted to or filed with an DOE Regional Office in accordance with this chapter shall be directed to one of the following addresses, as appropriate:
§ 205.13 Where to file.
(a) Except as otherwise specifically provided in other subparts of this part, all documents to be filed with the ERA pursuant to this part shall be filed with the appropriate ERA Regional Office (unless otherwise specified in part 211 of this chapter), except that all documents shall be filed with the ERA National Office that relate to:
(1) The allocation and pricing of crude oil pursuant to subpart C of part 211 and part 212 of this chapter;
(2) Refinery yield controls pursuant to subpart C of part 211 of this chapter;
(3) The pricing of propane, butane and natural gasoline pursuant to part 212 of this chapter and the allocation of butane and natural gasoline pursuant to part 211 of this chapter;
(4) The allocation and pricing of middle distillate fuels pursuant to subpart G of part 211 and part 212 of this chapter, filed by electric utilities;
(5) The allocation and pricing of aviation fuel pursuant to subpart H of part 211 and part 212 of this chapter, filed by civil air carriers (except air taxi/commercial operators);
(6) The allocation and pricing of residual fuel oil pursuant to subpart I of part 211 and part 212 of this chapter, filed by electric utilities;
(7) The allocation and pricing of naphtha and gas oil pursuant to subpart J of part 211 and part 212 of this chapter;
(8) The allocation and pricing of other products pursuant to subpart K of part 211 and part 212 of this chapter;
(9) An application for an exemption under subpart E of this part; requests for a rulemaking proceeding under subpart L of this part or for the issuance of a ruling under subpart K of this part; and petitions to the Office of Private Grievances and Redress under subpart R of this part;
(10) The pricing of products pursuant to part 212 of this chapter, filed by a refiner; and
(11) The allocation of crude oil and other allocated products to meet Department of Defense needs pursuant to part 211 of this chapter.
(12) The allocation of crude oil and other allocated products to be utilized as feedstock in a synthetic natural gas plant, pursuant to § 211.29.
(13) Allocations, fee-paid and fee-exempt licenses issued pursuant to part 213 of this chapter.
(b) Applications by end-users and wholesale purchasers for an allocation under the state set-aside system in accordance with § 211.17 shall be filed with the appropriate State Office.
(c) Applications to a State Office or a DOE Regional Office shall be directed to the office located in the state or region in which the allocated product will be physically delivered. An applicant doing business in more than one state or region must apply separately to each State or region in which a product will be physically delivered, unless the State Offices or Regional Offices involved agree otherwise.
§ 205.14 Ratification of prior directives, orders, and actions.
All interpretations, orders, notices of probable violation or other directives issued, all proceedings initiated, and all other actions taken in accordance with part 205 as it existed prior to the effective date of this amendment, are hereby confirmed and ratified, and shall remain in full force and effect as if issued under this amended part 205, unless or until they are altered, amended, modified or rescinded in accordance with the provisions of this part.
§ 205.15 Public docket room.
There shall be established at the DOE National Office, 12th and Pennsylvania Avenue, NW., Washington, DC, a public docket room in which shall be made available for public inspection and copying:
(a) A list of all persons who have applied for an exception, an exemption, or an appeal, and a digest of each application;
(b) Each decision and statement setting forth the relevant facts and legal basis of an order, with confidential information deleted, issued in response to an application for an exception or exemption or at the conclusion of an appeal;
(c) The comments received during each rulemaking proceeding, with a verbatim transcript of the public hearing if such a public hearing was held; and
(d) Any other information required by statute to be made available for public inspection and copying, and any information that the DOE determines should be made available to the public.
Subparts B-E [Reserved]
Subpart F—Interpretation
§ 205.80 Purpose and scope.
(a) This subpart establishes the procedures for the filing of a formal request for an interpretation and for the consideration of such request. Responses, which may include verbal or written responses to general inquiries or to other than formal written requests for interpretation filed with the General Counsel or his delegate or a Regional Counsel, are not interpretations and merely provide general information.
(b) A request for interpretation that includes, or could be construed to include an application for an exception or an exemption may be treated solely as a request for interpretation and processed as such.
§ 205.81 What to file.
(a) A person filing under this subpart shall file a “Request for Interpretation,” which should be clearly labeled as such both on the request and on the outside of the envelope in which the request is transmitted, and shall be in writing and signed by the person filing the request. The person filing the request shall comply with the general filing requirements stated in § 205.9 in addition to the requirements stated in this subpart.
(b) If the person filing the request wishes to claim confidential treatment for any information contained in the request or other documents submitted under this subpart, the procedures set out in § 205.9(f) shall apply.
§ 205.82 Where to file.
A request for interpretation shall be filed with the General Counsel or his delegate or with the appropriate Regional Counsel at the address provided in § 205.12.
§ 205.83 Contents.
(a) The request shall contain a full and complete statement of all relevant facts pertaining to the circumstances, act or transaction that is the subject of the request and to the DOE action sought. Such facts shall include the names and addresses of all affected persons (if reasonably ascertainable) and a full discussion of the pertinent provisions and relevant facts contained in the documents submitted with the request. Copies of all relevant contracts, agreements, leases, instruments, and other documents shall be submitted with the request. When the request pertains to only one step of a larger integrated transaction, the facts, circumstances, and other relevant information pertaining to the entire transaction must be submitted.
(b) The request for interpretation shall include a discussion of all relevant authorities, including, but not limited to, DOE rulings, regulations, interpretations and decisions on appeals and exceptions relied upon to support the particular interpretation sought therein.
§ 205.84 DOE evaluation.
(a) Processing. (1) The DOE may initiate an investigation of any statement in a request and utilize in its evaluation any relevant facts obtained by such investigation. The DOE may accept submissions from third persons relevant to any request for interpretation provided that the person making the request is afforded an opportunity to respond to all third person submissions. In evaluating a request for interpretation, the DOE may consider any other source of information. The DOE on its own initiative may convene a conference, if, in its discretion, it considers that such conference will advance its evaluation of the request.
(2) The DOE shall issue its interpretation on the basis of the information provided in the request, unless that information is supplemented by other information brought to the attention of the General Counsel or a Regional Counsel during the proceeding. The interpretation shall, therefore, depend for its authority on the accuracy of the factual statement and may be relied upon only to the extent that the facts of the actual situation correspond to those upon which the interpretation was based.
(3) If the DOE determines that there is insufficient information upon which to base a decision and if upon request additional information is not submitted by the person requesting the interpretation, the DOE may refuse to issue an interpretation.
(b) Criteria. (1) The DOE shall base an interpretation on the FEA and EPAA and the regulations and published rulings of the DOE as applied to the specific factual situation.
(2) The DOE shall take into consideration previously issued interpretations dealing with the same or a related issue.
§ 205.85 Decision and effect.
(a) An interpretation may be issued after consideration of the request for interpretation and other relevant information received or obtained during the proceeding.
(b) The interpretation shall contain a statement of the information upon which it is based and a legal analysis of and conclusions regarding the application of rulings, regulations and other precedent to the situation presented in the request.
(c) Only those persons to whom an interpretation is specifically addressed and other persons upon whom the DOE serves the interpretation and who are directly involved in the same transaction or act may rely upon it. No person entitled to rely upon an interpretation shall be subject to civil or criminal penalties stated in subpart P of this part for any act taken in reliance upon the interpretation, notwithstanding that the interpretation shall thereafter be declared by judicial or other competent authority to be invalid.
(d) An interpretation may be rescinded or modified at any time. Rescission or modification may be effected by notifying persons entitled to rely on the interpretation that it is rescinded or modified. This notification shall include a statement of the reasons for the recision or modification and, in the case of a modification, a restatement of the interpretation as modified.
(e) An interpretation is modified by a subsequent amendment to the regulations or ruling to the extent that it is inconsistent with the amended regulation or ruling.
(f)(1) Any person aggrieved by an interpretation may submit a petition for reconsideration to the General Counsel within 30 days of service of the interpretation from which the reconsideration is sought. There has not been an exhaustion of administrative remedies until a period of 30 days from the date of service of the interpretation has elapsed without receipt by the General Counsel of a petition for reconsideration or, if a petition for reconsideration of the interpretation has been filed in a timely manner, until that petition has been acted on by the General Counsel. However, a petition to which the General Counsel does not respond within 60 days of the date of receipt thereof, or within such extended time as the General Counsel may prescribe by written notice to the petitioner concerned within that 60 day period, shall be considered denied.
(2) A petition for reconsideration may be summarily denied if—
(i) It is not filed in a timely manner, unless good cause is shown; or
(ii) It is defective on its face for failure to state, and to present facts and legal argument in support thereof, that the interpretation was erroneous in fact or in law, or that it was arbitrary or capricious.
(3) The General Counsel may deny any petition for reconsideration if the petitioner does not establish that—
(i) The petition was filed by a person aggrieved by an interpretation;
(ii) The interpretation was erroneous in fact or in law; or
(iii) The interpretation was arbitrary or capricious. The denial of a petition shall be a final order of which the petitioner may seek judicial review.
§ 205.86 Appeal.
There is no administrative appeal of an interpretation.
Subparts G-J [Reserved]
Subpart K—Rulings
§ 205.150 Purpose and scope.
This subpart establishes the criteria for the issuance of interpretative rulings by the General Counsel. All rulings shall be published in the
§ 205.151 Criteria for issuance.
(a) A ruling may be issued, in the discretion of the General Counsel, whenever there have been a substantial number of inquiries with regard to similar factual situations or a particular section of the regulations.
(b) The General Counsel may issue a ruling whenever it is determined that it will be of assistance to the public in applying the regulations to a specific situation.
§ 205.152 Modification or rescission.
(a) A ruling may be modified or rescinded by:
(1) Publication of the modification or rescission in the
(2) A rulemaking proceeding in accordance with subpart L of this part.
(b) Unless and until a ruling is modified or rescinded as provided in paragraph (a) of this section, no person shall be subject to the sanctions or penalties stated in subpart P of this part for actions taken in reliance upon the ruling, notwithstanding that the ruling shall thereafter be declared by judicial or other competent authority to be invalid. Upon such declaration, no person shall be entitled to rely upon the ruling.
§ 205.153 Comments.
A written comment on or objection to a published ruling may be filed at any time with the General Counsel at the address specified in § 205.12.
§ 205.154 Appeal.
There is no administrative appeal of a ruling.
Subpart L [Reserved]
Subpart M—Conferences, Hearings, and Public Hearings
§ 205.170 Purpose and scope.
This subpart establishes the procedures for requesting and conducting a DOE conference, hearing, or public hearing. Such proceedings shall be convened in the discretion of the DOE, consistent with the requirements of the FEAA.
§ 205.171 Conferences.
(a) The DOE in its discretion may direct that a conference be convened, on its own initiative or upon request by a person, when it appears that such conference will materially advance the proceeding. The determination as to who may attend a conference convened under this subpart shall be in the discretion of the DOE, but a conference will usually not be open to the public.
(b) A conference may be requested in connection with any proceeding of the DOE by any person who might be aggrieved by that proceeding. The request may be made in writing or verbally, but must include a specific showing as to why such conference will materially advance the proceeding. The request shall be addressed to the DOE office that is conducting the proceeding.
(c) A conference may only be convened after actual notice of the time, place, and nature of the conference is provided to the person who requested the conference.
(d) When a conference is convened in accordance with this section, each person may present views as to the issue or issues involved. Documentary evidence may be presented at the conference, but will be treated as if submitted in the regular course of the proceedings. A transcript of the conference will not usually be prepared. However, the DOE in its discretion may have a verbatim transcript prepared.
(e) Because a conference is solely for the exchange of views incident to a proceeding, there will be no formal reports or findings unless the DOE in its discretion determines that such would be advisable.
§ 205.172 Hearings.
(a) The DOE in its discretion may direct that a hearing be convened on its own initiative or upon request by a person, when it appears that such hearing will materially advance the proceedings. The determination as to who may attend a hearing convened under this subpart shall be in the discretion of DOE, but a hearing will usually not be open to the public. Where the hearing involves a matter arising under part 213, the Director of Oil Imports shall be notified as to its time and place, in order that he or his representative may present views as to the issue or issues involved.
(b) A hearing may only be requested in connection with an application for an exception or an appeal. Such request may be by the applicant, appellant, or any other person who might be aggrieved by the DOE action sought. The request shall be in writing and shall include a specific showing as to why such hearing will materially advance the proceeding. The request shall be addressed to the DOE office that is considering the application for an exception or the appeal.
(c) The DOE will designate an agency official to conduct the hearing, and will specify the time and place for the hearing.
(d) A hearing may only be convened after actual notice of the time, place, and nature of the hearing is provided both to the applicant or appellant and to any other person readily identifiable by the DOE as one who will be aggrieved by the DOE action involved. The notice shall include, as appropriate:
(1) A statement that such person may participate in the hearing; or
(2) A statement that such person may request a separate conference or hearing regarding the application or appeal.
(e) When a hearing is convened in accordance with this section, each person may present views as to the issue or issues involved. Documentary evidence may be presented at the hearing, but will be treated as if submitted in the regular course of the proceedings. A transcript of the hearing will not usually be prepared. However, the DOE in its discretion may have a verbatim transcript prepared.
(f) The official conducting the hearing may administer oaths and affirmations, rule on the presentation of information, receive relevant information, dispose of procedural requests, determine the format of the hearing, and otherwise regulate the course of the hearing.
(g) Because a hearing is solely for the exchange of views incident to a proceeding, there will be no formal reports or findings unless the DOE in its discretion determines that such would be advisable.
§ 205.173 Public hearings.
(a) A public hearing shall be convened incident to a rulemaking:
(1) When the proposed rule or regulation is likely to have a substantial impact on the Nation’s economy or large numbers of individuals or businesses; or
(2) When the DOE determines that a public hearing would materially advance the consideration of the issue. A public hearing may be requested by any interested person in connection with a rulemaking proceeding, but shall only be convened on the initiative of the DOE unless otherwise required by statute.
(b) A public hearing may be convened incident to any proceeding when the DOE in its discretion determines that such public hearing would materially advance the consideration of the issue.
(c) A public hearing may only be convened after publication of a notice in the
(d) Interested persons may file a request to participate in the public hearing in accordance with the instructions in the notice published in the
(e) The DOE shall appoint a presiding officer to conduct the public hearing. An agenda shall be prepared that shall provide, to the extent practicable, for the presentation of all relevant views by competent spokespersons.
(f) A verbatim transcript shall be made of the hearing. The transcript, together with any written comments submitted in the course of the proceeding, shall be made available for public inspection and copying in the public docket room, as provided in § 205.15.
(g) The information presented at the public hearing, together with the written comments submitted and other relevant information developed during the course of the proceeding, shall provide the basis for the DOE decision.
Subpart N [Reserved]
Subpart O—Notice of Probable Violation, Remedial Order, Notice of Proposed Disallowance, and Order of Disallowance
§ 205.190 Purpose and scope.
(a) This subpart establishes the procedures for determining the nature and extent of violations of the DOE regulations in parts 210, 211, and 212 and the procedures for issuance of a Notice of Probable Violation, a Proposed Remedial Order, a Remedial Order, an Interim Remedial Order for Immediate Compliance, a Remedial Order for Immediate Compliance, a Notice of Probable Disallowance, a Proposed Order of Disallowance, an Order of Disallowance, or a Consent Order. Nothing in these regulations shall affect the authority of DOE enforcement officials in coordination with the Department of Justice to initiate appropriate civil or criminal enforcement actions in court at any time.
(b) When any report required by the ERA or any audit or investigation discloses, or the ERA otherwise discovers, that there is reason to believe a violation of any provision of this chapter, or any order issued thereunder, has occurred, is continuing or is about to occur, the ERA may conduct an inquiry to determine the nature and extent of the violation. A Remedial Order or Order of Disallowance may be issued thereafter by the Office of Hearings and Appeals. The ERA may commence enforcement proceedings by serving a Notice of Probable Violation, a Notice of Probable Disallowance, a Proposed Remedial Order, a Proposed Order of Disallowance, or an Interim Remedial Order for Immediate Compliance.
§ 205.191 [Reserved]
§ 205.192 Proposed remedial order.
(a) If the ERA finds, after the 30-day or other period authorized for reply to the Notice of Probable Violation, that a violation has occurred, is continuing, or is about to occur, it may issue a Proposed Remedial Order, which shall set forth the relevant facts and law.
(b) The ERA may issue a Proposed Remedial Order at any time it finds that a violation has occurred, is continuing, or is about to occur even if it has not previously issued a Notice of Probable Violation.
(c) The ERA shall serve a copy of the Proposed Remedial Order upon the person to whom it is directed. The ERA shall promptly publish a notice in the
(d) The Proposed Remedial Order shall set forth the proposed findings of fact and conclusions of law upon which it is based. It shall also include a discussion of the relevant authorities which support the position asserted, including rules, regulations, rulings, interpretations and previous decisions issued by DOE or its predecessor agencies. The Proposed Remedial Order shall be accompanied by a declaration executed by the DOE employee primarily knowledgeable about the facts of the case stating that, to the best of declarant’s knowledge and belief, the findings of fact are correct.
(e) The ERA may amend or withdraw a Proposed Remedial Order at its discretion prior to the date of service of a Statement of Objections in that proceeding. The date of service of the amended documents shall be considered the date of service of the Proposed Remedial Order in calculating the time periods specified in this part 205.
§ 205.192A Burden of proof.
(a) In a Proposed Remedial Order proceeding the ERA has the burden of establishing a prima facie case as to the validity of the findings of fact and conclusions of law asserted therein. The ERA shall be deemed to meet this burden by the service of a Proposed Remedial Order that meets the requirements of § 205.192(d) and any supplemental information that may be made available under § 205.193A.
(b) Once a prima facie case has been established, a person who objects to a finding of fact or conclusion of law in the Proposed Remedial Order has the burden of going forward with the evidence. Furthermore, the proponent of additional factual representations has the burden of going forward with the evidence.
(c) Unless otherwise specified by the Director of the Office of Hearings and Appeals or his designee, the proponent of an order or a motion or additional factual representations has the ultimate burden of persuasion.
§ 205.193 Notice of Objection.
(a) Within 15 days after publication of the notice of a Proposed Remedial Order in the
(b) A person who fails to file a timely Notice of Objection shall be deemed to have admitted the findings of fact and conclusions of law as stated in the Proposed Remedial Order. If a Notice of Objection is not filed as provided by paragraph (a) of this section, the Proposed Remedial Order may be issued as a final order.
(c) A person who files a Notice of Objection shall on the same day serve a copy of the Notice upon the person to whom the Proposed Remedial Order is directed, the DOE Office that issued the Proposed Remedial Order, and the DOE Assistant General Counsel for Administrative Litigation.
(d) The Notice shall include a certification of compliance with the provisions of this section, the names and addresses of each person served with a copy of the Notice, and the date and manner of service.
(e) If no person files a timely Notice of Objection, ERA may request the Office of Hearings and Appeals to issue the Proposed Remedial Order as a final Remedial Order.
(f) In order to exhaust administrative remedies with respect to a Remedial Order proceeding, a person must file a timely Notice of Objection and Statement of Objections with the Office of Hearings and Appeals.
§ 205.193A Submission of ERA supplemental information.
Within 20 days after service of a Notice of Objection to a Proposed Remedial Order the ERA may serve, upon the person to whom the Proposed Remedial Order was directed, supplemental information relating to the calculations and determinations which support the findings of fact set forth in the Proposed Remedial Order.
§ 205.194 Participants; official service list.
(a) Upon receipt of a Notice of Objection, the Office of Hearings and Appeals shall publish a notice in the
(b) The Office that issued the Proposed Remedial Order and the person to whom the Order is directed shall be considered participants before the Office of Hearings and Appeals at all stages of an enforcement proceeding. Any other person whose interest may be affected by the proceeding may file a request to participate in the proceeding with the Office of Hearings and Appeals within 20 days after publication of the notice referred to in paragraph (a) of this section. The request shall contain
(1) The person’s name, address, and telephone number and similar information concerning his duly authorized representative, if any;
(2) A detailed description of the person’s interest in the proceeding;
(3) The specific reasons why the person’s active involvement in the proceeding will substantially contribute to a complete resolution of the issues to be considered in the proceeding;
(4) A statement of the position which the person intends to adopt in the proceeding; and
(5) A statement of the particular aspects of the proceeding, e.g. oral argument, submission of briefs, or discovery, in which the person wishes to actively participate.
(c) After considering the requests submitted pursuant to paragraph (b) of this section, the Office of Hearings and Appeals shall determine those persons who may participate on an active basis in the proceeding and the nature of their participation. Participants with similar interests may be required to consolidate their submissions and to appear in the proceeding through a common representative.
(d) Within 30 days after publication of the notice referred to in paragraph (a) of this section, the Office of Hearings and Appeals shall prepare an official service list for the proceeding. Within the same 30 day period the Office of Hearings and Appeals shall mail the official service list to all persons who filed requests to participate. For good cause shown a person may be placed on the official service list as a non-participant, for the receipt of documents only. An opportunity shall be afforded to participants to oppose the placement of a non-participant on the official service list.
(e) A person requesting to participate after the period for submitting requests has expired must show good cause for failure to file a request within the prescribed time period.
(f) The Office of Hearings and Appeals may limit the nature of a person’s participation in the proceeding, if it finds that the facts upon which the person’s request was based have changed or were incorrect when stated or that the person has not been actively participating or has engaged in disruptive or dilatory conduct. The action referred to in this provision shall be taken only after notice and an opportunity to be heard are afforded.
§ 205.195 Filing and service of all submissions.
(a)(1) Statements of Objections, Responses to such Statements, and any motions or other documents filed in connection with a proceeding shall meet the requirements of § 205.9 and shall be filed with the Office of Hearings and Appeals in accordance with § 205.4. Unless otherwise specified, any participant may file a response to a motion within five days of service.
(2) All documents shall be filed in duplicate, unless they contain confidential information, in which case they must be filed in triplicate.
(3) If a person claims that any portion of a document which he is filing contains confidential information, such information should be deleted from two of the three copies which are filed. One copy from which confidential information has been deleted will be placed in the Office of Hearings and Appeals Public Docket Room.
(b)(1) Persons other than DOE offices shall on the date a submission is filed serve each person on the official service list. Service shall be made in accordance with § 205.7 and may also be made by deposit in the regular United States mail, properly stamped and addressed, when accompanied by proof of service consisting of a certificate of counsel or an affidavit of the person making the service. If any filing arguably contains confidential information, a person may serve copies with the confidential information deleted upon all persons on the official service list except DOE offices, which shall be served both an original filing and one with deletions.
(2) A DOE office shall on the date it files a submission serve all persons on the official service list, unless the filing arguably contains confidential information. In that case the DOE office shall notify the person to whom the information relates of the opportunity to identify and delete the confidential information. The DOE Office may delay the service of a submission containing arguably confidential information upon all persons other than the possessor of the confidential information and other DOE offices up to 14 days. The possessor of the confidential information shall serve the filing with any deletions upon all persons on the official service list within such time period.
(c) Any filing made under this section shall include a certification of compliance by the filer with the provisions of this subpart. The person serving a document shall file a certificate of service, which includes the date and manner of service for each person on the official service list.
§ 205.196 Statement of objections.
(a) A person who has filed a Notice of Objection shall file a Statement of Objections to a Proposed Remedial Order within 40 days after service of the Notice of Objection. A request for an extension of time for filing must be submitted in writing and may be granted for good cause shown.
(b) The Statement of Objections shall set forth the bases for the objections to the issuance of the Proposed Remedial Order as a final order, including a specification of the issues of fact or law which the person intends to contest in any further proceeding involving the compliance matter which is the subject of the Proposed Remedial Order. The Statement shall set forth the findings of fact contained in the Proposed Remedial Order which are alleged to be erroneous, the factual basis for such allegations, and any alternative findings which are sought. The Statement shall include a discussion of all relevant authorities which support the position asserted. The Statement may include additional factual representations which are not referred to in the Proposed Remedial Order and which the person contends are material and relevant to the compliance proceeding. For each additional factual representation which the person asserts should be made, the Statement shall include reasons why the factual representation is relevant and material, and the manner in which its validity is or will be established. The person shall also specify the manner in which each additional issue of fact was raised in any prior administrative proceeding which led to issuance of the Proposed Remedial Order, or the reasons why it was not raised.
(c) A Statement of Objections that is filed by the person to whom a Proposed Remedial Order is directed shall include a copy of any relevant Notice of Probable Violation, each Response thereto, the Proposed Remedial Order, and any relevant work papers or supplemental information previously provided by ERA. Copies of this material must also be included with the copy of the Statement of Objections served upon the DOE Assistant General Counsel for Administrative Litigation. All other persons on the official service list must be notified that such materials are available from the notifier upon written request.
§ 205.197 Response to statement of objections; reply.
(a) Within 30 days after service of a Statement of Objections each participant may file a Response. If any motions are served with the Statement of Objections, a participant shall have 30 days from the date of service to respond to such submissions, notwithstanding any shorter time periods otherwise required in this subpart. The Response shall contain a full discussion of the position asserted and a discussion of the legal and factual bases which support that position. The Response may also contain a request that any issue of fact or law advanced in a Statement of Objections be dismissed. Any such request shall be accompanied by a full discussion of the reasons supporting the dismissal.
(b) A participant may submit a Reply to any Response within 10 days after the date of service of the Response.
§ 205.198 Discovery.
(a) If a person intends to file a Motion for Discovery, he must file it at the same time that he files his Statement of Objections or at the same time he files his Response to a Statement of Objections, whichever is earlier. All Motions for Discovery and related filings must be served upon the person to whom the discovery is directed. If the person to whom the discovery is directed is not on the official service list, the documents served upon him shall include a copy of this section, the address of the Office of Hearings and Appeals and a statement that objections to the Motion may be filed with the Office of Hearings and Appeals.
(b) A Motion for Discovery may request that:
(1) A person produce for inspection and photocopying non-privileged written material in his possession;
(2) A person respond to written interrogatories;
(3) A person admit to the genuineness of any relevant document or the truth of any relevant fact; or
(4) The deposition of a material witness be taken.
(c) A Motion for Discovery shall set forth the reasons why the particular discovery is necessary in order to obtain relevant and material evidence and shall explain why such discovery would not unduly delay the proceeding.
(d) Within 20 days after a Motion for Discovery is served, a participant or a person to whom the discovery is directed may file a request that the Motion be denied in whole or in part, stating the reasons which support the request.
(e) Discovery may be conducted only pursuant to an Order issued by the Office of Hearings and Appeals. A Motion for Discovery will be granted if it is concluded that discovery is necessary for the party to obtain relevant and material evidence and that discovery will not unduly delay the proceeding. Depositions will be permitted if a convincing showing is made that the participant cannot obtain the material sought through one of the other discovery means specified in paragraph (b) of this section.
(f) The Director of the Office of Hearings and Appeals or his designee may issue subpoenas in accordance with § 205.8 in support of Discovery Orders, except that § 205.8 (h)(2), (3), and (4) shall not apply to such subpoenas.
(g) The Office of Hearings and Appeals may order that any direct expenses incurred by a person to produce evidence pursuant to a Motion for Discovery be charged to the person who filed the Motion.
(h)(1) If a person fails to comply with an order relating to discovery, the Office of Hearings and Appeals may order appropriate sanctions.
(2) It shall be the duty of aggrieved participants to request that appropriate relief be fashioned in such situations.
(i) Any order issued by the Office of Hearings and Appeals with respect to discovery shall be subject to further administrative review or appeal only upon issuance of the determination referred to in § 205.199B.
§ 205.198A Protective order.
A participant who has unsuccessfully attempted in writing to obtain information that another participant claims is confidential may file a Motion for Discovery and Protective Order. This motion shall meet the requirements of § 205.198 and shall specify the particular confidential information that the movant seeks and the reasons why the information is necessary to adequately present the movant’s position in the proceeding. A copy of the written request for information, a certification concerning when and to whom it was served and a copy of the response, if any, shall be appended to the motion. The motion must give the possessor of the information notice that a Response to the Motion must be filed within ten days. The Response shall specify the safeguards, if any, that should be imposed if the information is ordered to be released. The Office of Hearings and Appeals may issue a Protective Order upon consideration of the Motion and the Response.
§ 205.199 Evidentiary hearing.
(a) Filing Requirements. At the time a person files a Statement of Objections he may also file a motion requesting an evidentiary hearing be convened. A motion requesting an evidentiary hearing may be filed by any other participant within 30 days after that participant is served with a Statement of Objections.
(b) Contents of Motion for Evidentiary Hearing. A Motion for Evidentiary Hearing shall specify each disputed issue of fact and the bases for the alternative findings the movant asserts. The movant shall also describe the manner in which each disputed issue of fact was raised in any prior administrative proceeding which led to issuance of the Proposed Remedial Order, or why it was not raised. The movant shall with respect to each disputed or alternative finding of fact:
(1) As specifically as possible, identify the witnesses whose testimony is required;
(2) State the reasons why the testimony of the witnesses is necessary; and
(3) State the reasons why the asserted position can be effectively established only through the direct questioning of witnesses at an evidentiary hearing.
(c) Response to Motion for Evidentiary Hearing. Within 20 days after service of any Motion for Evidentiary Hearing, the Office that issued the Proposed Remedial Order shall, and any other participant may file a Response with the Office of Hearings and Appeals. The Response shall specify:
(1) Each particular factual representation which is accepted as correct for purposes of the proceeding;
(2) Each particular factual representation which is denied;
(3) Each particular factual representation which the participant is not in a position to accept or deny;
(4) Each particular factual representation which is not accepted and the participant wishes proven by the submission of evidence;
(5) Each particular factual representation which the participant is prepared to dispute through the testimony of witnesses or the submission of verified documents; and
(6) Each particular factual representation which the participant asserts should be dismissed as immaterial or irrelevant.
(d) Prehearing Conferences. After all submissions with respect to a Motion for Evidentiary Hearing are filed, the Office of Hearings and Appeals may conduct conferences or hearings to resolve differences of view among the participants.
(e) Decision on Motion for Evidentiary Hearing. After considering all relevant information received in connection with the Motion, the Office of Hearings and Appeals shall enter an Order. In the Order the Office of Hearings and Appeals shall direct that an evidentiary hearing be convened if it concludes that a genuine dispute exists as to relevant and material issues of fact and an evidentiary hearing would substantially assist it in making findings of fact in an effective manner. If the Motion for Evidentiary Hearing is granted in whole or in part, the Order shall specify the parties to the hearing, any limitations on the participation of a party, and the issues of fact set forth for the evidentiary hearing. The Order may also require parties that have adopted similar positions to consolidate their presentations and to appear at the evidentiary hearing through a common representative. If the Motion is denied, the Order may allow the movant to file affidavits and other documents in support of his asserted findings of fact.
(f) Review of Decision. The Order of the Office of Hearings and Appeals with respect to a Motion for Evidentiary Hearing shall be subject to further administrative review or appeal only upon issuance of the determination referred to in § 205.199B.
(g) Conduct of Evidentiary Hearing. All evidentiary hearings convened pursuant to this section shall be conducted by the Director of the Office of Hearings and Appeals or his designee. At any evidentiary hearing the parties shall have the opportunity to present material evidence which directly relates to a particular issue of fact set forth for hearing. The presiding officer shall afford the parties an opportunity to cross examine all witnesses. The presiding officer may administer oaths and affirmations, rule on objections to the presentation of evidence, receive relevant material, rule on any motion to conform the Proposed Remedial Order to the evidence presented, rule on motions for continuance, dispose of procedural requests, determine the format of the hearing, modify any order granting a Motion for Evidentiary Hearing, direct that written motions or briefs be provided with respect to issues raised during the course of the hearing, issue subpoenas, and otherwise regulate the conduct of the hearing. The presiding officer may take reasonable measures to exclude duplicative material from the hearing, and may place appropriate limitations on the number of witnesses that may be called by a party. The presiding officer may also require that evidence be submitted through affidavits or other documents if the direct testimony of witnesses will unduly delay the orderly progress of the hearing and would not contribute to resolving the issues involved in the hearing. The provisions of § 205.8 which relate to subpoenas and witness fees shall apply to any evidentiary hearing, except that subsection § 205.8(h) (2), (3), and (4) shall not apply.
§ 205.199A Hearing for the purpose of oral argument only.
(a) A participant is entitled upon timely request to a hearing to present oral argument with respect to the Proposed Remedial Order, whether or not an evidentiary hearing is requested or convened. A participant’s request shall normally be considered untimely, if made more than 10 days after service of a determination regarding any motion filed by the requestor or, if no motions were filed by him, if made after the date for filing his Reply or his Response to a Statement of Objections.
(b) If an evidentiary hearing is convened, and a hearing for oral argument is requested, the Office of Hearings and Appeals shall determine whether the hearing for oral argument shall be held in conjunction with the evidentiary hearing or at a separate time.
(c) A hearing for the purpose of receiving oral argument will generally be conducted only after the issues involved in the proceeding have been delineated, and any written material which the Office of Hearings and Appeals has requested to supplement a Statement of Objections or Responses has been submitted. The presiding officer may require further written submissions in support of any position advanced or issued at the hearing, and shall allow responses any such submissions.
§ 205.199B Remedial order.
(a) After considering all information received during the proceeding, the Director of the Office of Hearings and Appeals or his designee may issue a final Remedial Order. The Remedial Order may adopt the findings and conclusions contained in the Proposed Remedial Order or may modify or rescind any such finding or conclusion to conform the Order to the evidence or on the basis of a determination that the finding or conclusion is erroneous in fact or law or is arbitrary or capricious. In the alternative, the Office of Hearings and Appeals may determine that no Remedial Order should be issued or may remand all or a portion of the Proposed Remedial Order to the issuing DOE office for further consideration or modification. Every determination made pursuant to this section shall state the relevant facts and legal bases supporting the determination.
(b) The DOE shall serve a copy of any determination issued pursuant to paragraph (a) of this section upon the person to whom it is directed, any person who was served with a copy of the Proposed Remedial Order, the DOE office that issued the Proposed Remedial Order, the DOE Assistant General Counsel for Administrative Litigation and any other person on the official service list. Appropriate deletions may be made in the determinations to ensure that confidentiality of information protected from disclosure under 18 U.S.C. 1905 and 5 U.S.C. 552. A copy of the determination with appropriate deletions to protect confidential and proprietary data shall be placed in the Office of Hearings and Appeals Public Docket Room.
§ 205.199C Appeals of remedial order to FERC.
(a) The person to whom a Remedial Order is issued by the Office of Hearings and Appeals may file an administrative appeal if the Remedial Order proceeding was initiated by a Notice of Probable Violation issued after October 1, 1977, or, in those situations in which no Notice of Probable Violation was issued, if the proceeding was initiated by a Proposed Remedial Order issued after October 1, 1977.
(b) Any such appeal must be initiated within 30 days after service of the Order by giving written notice to the Office of Hearings and Appeals that the person to whom a Remedial Order is issued wishes to contest the Order.
(c) The Office of Hearings and Appeals shall promptly advise the Federal Energy Regulatory Commission of its receipt of a notice described in paragraph (b) of this section.
(d) The Office of Hearings and Appeals may, on a case by case basis, set reasonable time limits for the Federal Energy Regulatory Commission to complete its action on such an appeal proceeding.
(e) In order to exhaust administrative remedies, a person who is entitled to appeal a Remedial Order issued by the Office of Hearings and Appeals must file a timely appeal and await a decision on the merits. Any Remedial Order that is not appealed within the 30-day period shall become effective as a final Order of the DOE and is not subject to review by any court.
§§ 205.199D-205.199E [Reserved]
§ 205.199F Ex parte communications.
(a) No person who is not employed or otherwise supervised by the Office of Hearings and Appeals shall submit ex parte communications to the Director or any person employed or otherwise supervised by the Office with respect to any matter involved in Remedial Order or Order of Disallowance proceedings.
(1) Ex parte communications include any ex parte oral or written communications relative to the merits of a Proposed Remedial Order, Interim Remedial Order for Immediate Compliance, or Proposed Order of Disallowance proceeding pending before the Office of Hearings and Appeals. The term shall not, however, include requests for status reports, inquiries as to procedures, or the submission of proprietary or confidential information. Notice that proprietary or confidential submissions have been made shall be given to all persons on the official service list.
(b) If any communication occurs that violates the provisions of this section, the Office of Hearings and Appeals shall promptly make the substance of the communication available to the public and serve a copy of a written communication or a memorandum summarizing an oral communication to all participants in the affected proceeding. The Office of Hearings and Appeals may also take any other appropriate action to mitigate the adverse impact to any person whose interest may be affected by the ex parte contact.
§ 205.199G Extension of time; Interim and Ancillary Orders.
The Director of the Office of Hearings and Appeals or his designee may permit upon motion any document or submission referred to in this subpart other than appeals to FERC to be amended or withdrawn after it has been filed or to be filed within a time period different from that specified in this subpart. The Director or his designee may upon motion or on his own initiative issue any interim or ancillary Orders, reconsider any determinations, or make any rulings or determinations that are deemed necessary to ensure that the proceedings specified in this subpart are conducted in an appropriate manner and are not unduly delayed.
§ 205.199H Actions not subject to administrative appeal.
A Notice of Probable Violation, Notice of Proposed Disallowance, Proposed Remedial Order or Interim Remedial Order for Immediate Compliance issued pursuant to this subpart shall not be an action from which there may be an administrative appeal pursuant to subpart H. In addition, a determination by the Office of Hearings and Appeals that a Remedial Order, an Order of Disallowance, or a Remedial Order for Immediate Compliance should not be issued shall not be appealable pursuant to subpart H.
§ 205.199I Remedies.
(a) A Remedial Order, a Remedial Order for Immediate Compliance, an Order of Disallowance, or a Consent Order may require the person to whom it is directed to roll back prices, to make refunds equal to the amount (plus interest) charged in excess of those amounts permitted under DOE Regulations, to make appropriate compensation to third persons for administrative expenses of effectuating appropriate remedies, and to take such other action as the DOE determines is necessary to eliminate or to compensate for the effects of a violation or any cost disallowance pursuant to § 212.83 or § 212.84. Such action may include a direction to the person to whom the Order is issued to establish an escrow account or take other measures to make refunds directly to purchasers of the products involved, notwithstanding the fact that those purchasers obtained such products from an intermediate distributor of such person’s products, and may require as part of the remedy that the person to whom the Order is issued maintain his prices at certain designated levels, notwithstanding the presence or absence of other regulatory controls on such person’s prices. In cases where purchasers cannot be reasonably identified or paid or where the amount of each purchaser’s overcharge is incapable of reasonable determination, the DOE may refund the amounts received in such cases directly to the Treasury of the United States on behalf of such purchasers.
(b) The DOE may, when appropriate, issue final Orders ancillary to a Remedial Order, Remedial Order for Immediate Compliance, Order of Disallowance, or Consent Order requiring that a direct or indirect recipient of a refund pass through, by such means as the DOE deems appropriate, including those described in paragraph (a) of this section, all or a portion of the refund, on a pro rata basis, to those customers of the recipient who were adversely affected by the initial overcharge. Ancillary Orders may be appealed to the Office of Hearings and Appeals only pursuant to subpart H.
§ 205.199J Consent order.
(a) Notwithstanding any other provision of this subpart, the DOE may at any time resolve an outstanding compliance investigation or proceeding, or a proceeding involving the disallowance of costs pursuant to § 205.199E with a Consent Order. A Consent Order must be signed by the person to whom it is issued, or a duly authorized representative, and must indicate agreement to the terms contained therein. A Consent Order need not constitute an admission by any person that DOE regulations have been violated, nor need it constitute a finding by the DOE that such person has violated DOE regulations. A Consent Order shall, however, set forth the relevant facts which form the basis for the Order.
(b) A Consent Order is a final Order of the DOE having the same force and effect as a Remedial Order issued pursuant to § 205.199B or an Order of Disallowance issued pursuant to § 205.199E, and may require one or more of the remedies authorized by § 205.199I and § 212.84(d)(3). A Consent Order becomes effective no sooner than 30 days after publication under paragraph (c) of this section, unless (1) the DOE makes a Consent Order effective immediately, because it expressly deems it necessary in the public interest, or (2) the Consent Order involves a sum of less than $500,000 in the aggregate, excluding penalties and interest, in which case it will be effective when signed both by the person to whom it is issued and the DOE, and will not be subject to the provisions of paragraph (c) of this section unless the DOE determines otherwise. A Consent Order shall not be appealable pursuant to the provisions of § 205.199C or § 205.199D and subpart H, and shall contain an express waiver of such appeal or judicial review rights as might otherwise attach to a final Order of the DOE.
(c) When a Consent Order has been signed, both by the person to whom it is issued and the DOE, the DOE will publish notice of such Consent Order in the
(d) At any time and in accordance with the procedures of subpart J, a Consent Order may be modified or rescinded, upon petition by the person to whom the Consent Order was issued, and may be rescinded by the DOE upon discovery of new evidence which is materially inconsistent with evidence upon which the DOE’s acceptance of the Consent Order was based. Modifications of a Consent Order which is subject to public comment under the provisions of paragraph (c) of this section, which in the opinion of the DOE significantly change the terms or the impact of the original Order, shall be republished under the provisions of that paragraph.
(e) Notwithstanding the issuance of a Consent Order, the DOE may seek civil or criminal penalties or compromise civil penalties pursuant to subpart P concerning matters encompassed by the Consent Order, unless the Consent Order by its terms expressly precludes the DOE from so doing.
(f) If at any time after a Consent Order becomes effective it appears to the DOE that the terms of the Consent Order have been violated, the DOE may refer such violations to the Department of Justice for appropriate action in accordance with subpart P.
Subparts P-T [Reserved]
Subpart U—Procedures for Electricity Export Cases
§ 205.260 Purpose and scope.
(a) The purpose of this section is to state the procedures that will be followed by the Economic Regulatory Administration of the Department of Energy in electricity export adjudications.
(b) Definitions. As used in this subpart—
Administrator means the Administrator of the Economic Regulatory Administration.
Decisional employees means the Administrator, presiding officers at adjudicatory hearings, and other employees of the Department, including consultants and contractors, who are, or may reasonably be expected to be, involved in the decision-making process, which includes advising the Administrator in resolving the issues in an adjudication. The term does not include those employees of the Department performing investigative or trial functions in an adjudication, unless they are specifically requested by the Administrator or his delegate to participate in the decision-making process.
Department means the Department of Energy.
Off-the-record communication means an ex parte communication, which is an oral or written communication relevant to the merits of an adjudication and not on the record and with respect to which reasonable prior notice to all participants and opportunity to be present at, or respond to, the communication is not given, but does not include a communication relating solely to procedures which are not relevant to the merits of the adjudication.
Interested person means a person outside the Department whose interest in the adjudication goes beyond the general interest of the public as a whole and includes applicants, intervenors, competitors of applicants, non-profit and public interest organizations, and other individuals and organizations, including state, local and other public officials, with a proprietary, financial or other special interest in the outcome of the adjudication. The term does not include other federal agencies, unless an agency is a participant in the adjudication.
Participant means any applicant or intervenor participating in the adjudication.
Adjudication means a formal proceeding employing procedures identical or similar to those required by the Administrative Procedure Act, as codified in 5 U.S.C. 551, 556, and 557, to consider an application to export electricity.
Reasonable prior notice means 7 days’ written notice stating the nature and purpose of the communication.
Relevant to the merits means a communication directly related to the merits of a specific adjudication but does not include general background discussions about an entire industry or communications of a general nature made in the course of developing agency policy for future general application.
§§ 205.261-205.269 [Reserved]
§ 205.270 Off-the-record communications.
(a) In any proceeding which is subject to this subpart—
(1) No interested person shall make an off-the-record communication or knowingly cause an off-the-record communication to be made to any decisional employee.
(2) No decisional employee shall make an off-the-record communication or knowingly cause an off-the-record communication to be made to any interested person.
(3) A decisional employee who receives, makes, or knowingly causes to be made an oral communication prohibited by this section shall prepare a memorandum stating the substance of the communication and any responses made to it.
(4) With 48 hours of receiving, making or knowingly causing to be made a communication prohibited by this section, a decisional employee shall deliver all written off-the-record communications and all memoranda prepared in compliance with paragraph (a)(3) of this section to the Director of the Coal and Electricity Division, ERA, who will immediately place the materials described above in the public record associated with the adjudication, available for public inspection.
(5) Upon receipt of a communication knowingly made or knowingly caused to be made by a participant in violation of this section, the Administrator or presiding officer may, to the extent consistent with the interests of justice and the applicable statutory policy, require the participant to show cause why his or her claim or interest in the adjudication should not be dismissed, denied, disregarded, or otherwise adversely affected on account of the violation.
(6) The prohibitions of this section shall apply beginning at the time an adjudication is noticed for hearing (or the person responsible for the communication acquires knowledge that it will be noticed), a protest is filed, or a petition or notice to intervene in opposition to the requested Department action is filed, whichever occurs first.
(b) The prohibition, cited at 18 CFR 1.30(f), against participation in the decision-making process by Department employees who perform investigative or trial functions in an adjudication, shall no longer be applicable to ERA.
Subpart V—Special Procedures for Distribution of Refunds
§ 205.280 Purpose and scope.
This subpart establishes special procedures pursuant to which refunds may be made to injured persons in order to remedy the effects of a violation of the regulations of the Department of Energy. This subpart shall be applicable to those situations in which the Department of Energy is unable to readily identify persons who are entitled to refunds specified in a Remedial Order, a Remedial Order for Immediate Compliance, an Order of Disallowance or a Consent Order, or to readily ascertain the amounts that such persons are entitled to receive.
§ 205.281 Petition for implementation of special refund procedures.
(a) At any time after the issuance of a Remedial Order (including for purposes of this subpart a Remedial Order for Immediate Compliance and an Order of Disallowance), or a Consent Order, the Special Counsel of the Department of Energy, the ERA Office of Enforcement, or any other enforcement official of the Department of Energy may file with the Office of Hearings and Appeals a Petition for the Implementation of Special Refund Procedures.
(b) The Petition shall state that the person filing it has been unable readily either to identify the persons who are entitled to refunds to be remitted pursuant to a Remedial Order or a Consent Order or to ascertain the amounts of refunds that such persons are entitled to receive. The Petition shall request that the Office of Hearings and Appeals institute appropriate proceedings under this subpart to distribute the funds referred to in the enforcement documents.
(c) The Petition shall contain a copy of each relevant enforcement document, shall be filed in duplicate, and shall meet the requirements of § 205.9 of this part.
§ 205.282 Evaluation of petition by the Office of Hearings and Appeals.
(a) After considering the Petition, the Director of the Office of Hearings and Appeals or his designee shall issue a Proposed Decision and Order. The Proposed Decision and Order shall generally describe the nature of the particular refund proceeding and shall set forth the standards and procedures that the Office of Hearings and Appeals intends to apply in evaluating refund claims.
(b) The Proposed Decision and Order shall be published in the
(c) After considering the comments submitted, the Director of the Office of Hearings and Appeals or his designee shall issue a final Decision and Order which shall govern the disposition of the refunds. The final Decision and Order shall also be published in the
(d) The final Decision and Order shall set forth the standards and procedures that will be used in evaluating individual Applications for Refunds and distributing the refund amount. Those standards and procedures shall be consistent with the provisions of this subpart.
(e) In establishing standards and procedures for implementing refund distributions, the Office of Hearings and Appeals shall take into account the desirability of distributing the refunds in an efficient, effective and equitable manner and resolving to the maximum extent practicable all outstanding claims. In order to do so, the standards for evaluation of individual claims may be based upon appropriate presumptions.
§ 205.283 Applications for refund.
(a) Any person entitled to a refund pursuant to a final Decision and Order issued pursuant to § 205.282 may file an Application for Refund. All Applications must be signed by the applicant and specify the DOE order to which they pertain. Any Application for a refund in excess of $100 must be file in duplicate, and a copy of that Application will be available for public inspection in the DOE Public Docket Room at 2000 M Street, NW., Washington, DC. Any applicant who believes that his Application contains confidential information must so indicate on the first page of his Application and submit two additional copies of his Application from which the information that the applicant claims is confidential has been deleted, together with a statement specifying why any such information is privileged or confidential.
(b) The contents of an Application for Refund shall be specified in the final Decision and Order referred to in § 205.282(c). A filing deadline for Applications shall also be specified in the final Decision and Order, and shall be no less than 90 days after the publication of the Order in the
(c) Each Application shall be in writing and signed by the applicant, and shall indicate whether the applicant or any person acting on his instructions has filed or intends to file any other Application or claim of whatever nature regarding the matters at issue in the underlying enforcement proceeding. Each Application shall also include a sworn statement by the applicant that all information in his Application is true and correct to the best of his knowledge and belief.
§ 205.284 Processing of applications.
(a) The Director of the Office of Hearings and Appeals may appoint an administrator to evaluate Applications under guidelines established by the Office of Hearings and Appeals. The administrator, if he is not a Federal Government employee, may be compensated from the funds referred to in the Remedial Order or Consent Order. The administrator may design and distribute an optional application form for the convenience of the applicants.
(b) The Office of Hearings and Appeals or its designee may initiate an investigation of any statement made in an Application and may require verification of any document submitted in support of a claim. In evaluating an Application, the Office of Hearings and Appeals or its designee may solicit and consider information obtained from any source and may on its own initiative convene a hearing or conference, if it determines that a hearing or conference will advance its evaluation of an Application.
(c) The Director of the Office of Hearings and Appeals or his designee shall conduct any hearing or conference convened with respect to an Application for Refund and shall specify the time and place for the hearing or conference and notify the applicant. The official conducting the hearing may administer oaths and affirmations, rule on the presentation of information, receive relevant information, dispose of procedural requests, determine the format of the hearing and otherwise regulate the course of the hearing. The provisions of § 205.8 of this part which relate to subpoenas and witness fees shall apply to any hearing convened with respect to an application for refund, except that § 205.8(h) (2), (3) and (4) shall not apply.
(d) Upon consideration of an Application and other relevant information received during the course of a refund proceeding, the Director of the Office of Hearings and Appeals or his designee shall issue an order granting or denying the Application. The order shall contain a concise statement of the relevant facts and the legal basis for the order. A copy of the order, with such modification as is necessary to ensure the confidentiality of information protected from public disclosure by 18 U.S.C. 1905, may be obtained upon request by an applicant or any other person who participated in the proceeding.
§ 205.285 Effect of failure to file a timely application.
An Application for Refund must be filed no later than the date that the Office of Hearings and Appeals establishes pursuant to § 205.283(b). Any Application that is not filed on a timely basis may be summarily dismissed. The Office of Hearings and Appeals or its designee may, however, grant extensions of time for good cause shown. Any request for an extension of time must generally be submitted in writing prior to the deadline.
§ 205.286 Limitations on amount of refunds.
(a) The aggregate amount of all refunds approved by the Office of Hearings and Appeals or its designee in a given case shall not exceed the amount to be remitted pursuant to the relevant DOE enforcement order, plus any accumulated interest, reduced by the amount of any administrative costs approved by the Office of Hearings and Appeals. In the event that the aggregate amount of approved claims exceeds the aggregate amount of funds specified above, the Office of Hearings and Appeals may make refunds on a pro rata basis. The Office of Hearings and Appeals may delay payment of any refunds until all Applications have been processed.
(b) The Office of Hearings and Appeals may decline to consider Applications for refund amounts that, in view of the direct administrative costs involved, are too small to warrant individual consideration.
§ 205.287 Escrow accounts, segregated funds and other guarantees.
(a) In implementing the refund procedures specified in this subpart, the Director of the Office of Hearings and Appeals or his designee shall issue an order providing for the custody of the funds to be tendered pursuant to the Remedial Order or Consent Order. This Order may require placement of the funds in an appropriate interest-bearing escrow account, retention of the funds by the firm in a segregated account under such terms and conditions as are specified by the DOE, or the posting of a sufficient bond or other guarantee to ensure payment.
(b) All costs and charges approved by the Office of Hearings and Appeals and incurred in connection with the processing of Applications for Refund or incurred by an escrow agent shall be paid from the amount of funds, including any accumulated interest, to be remitted pursuant to the Remedial Order or Consent Order.
(c) After the expenses referred to in paragraph (b) of this section have been satisfied and refunds distributed to successful applicants, any remaining funds remitted pursuant to the Remedial Order or Consent Order shall be deposited in the United States Treasury or distributed in any other manner specified in the Decision and Order referred to in § 205.282(c).
(d) Funds contained in an escrow account, segregated fund, or guaranteed by other approved means shall be disbursed only upon written order of the Office of Hearings and Appeals.
§ 205.288 Interim and ancillary orders.
The Director of the Office of Hearings and Appeals or his designee may issue any interim or ancillary orders, or make any rulings or determinations to ensure that refund proceedings, including the actions of the administrator and the custodian of the funds involved in a refund proceeding, are conducted in an appropriate manner and are not unduly delayed.
Subpart W—Electric Power System Permits and Reports; Applications; Administrative Procedures and Sanctions; Grid Security Emergency Orders
Application for Authorization to Transmit Electric Energy to a Foreign Country
§ 205.300 Who shall apply.
(a) An electric utility or other entity subject to DOE jurisdiction under part II of the Federal Power Act who proposes to transmit any electricity from the United States to a foreign country must submit an application or be a party to an application submitted by another entity. The application shall be submitted to the Office of Utility Systems of the Economic Regulatory Administration (EPA).
(b) In connection with an application under §§ 205.300 through 205.309, attention is directed to the provisions of §§ 205.320 through 205.327, below, concerning applications for Presidential Permits for the construction, connection, operation, or maintenance, at the borders of the United States, of facilities for the transmission of electric energy between the United States and a foreign country in compliance with Executive Order 10485, as amended by Executive Order 12038.
§ 205.301 Time of filing.
Each application should be made at least six months in advance of the initiation of the proposed electricity export, except when otherwise permitted by the ERA to resolve an emergency situation.
§ 205.302 Contents of application.
Every application shall contain the following information set forth in the order indicated below:
(a) The exact legal name of the applicant.
(b) The exact legal name of all partners.
(c) The name, title, post office address, and telephone number of the person to whom correspondence in regard to the application shall be addressed.
(d) The state or territory under the laws of which the applicant is organized or incorporated, or authorized to operate. If the applicant is authorized to operate in more than one state, all pertinent facts shall be included.
(e) The name and address of any known Federal, State or local government agency which may have any jurisdiction over the action to be taken in this application and a brief description of that authority.
(f) A description of the transmission facilities through which the electric energy will be delivered to the foreign country, including the name of the owners and the location of any remote facilities.
(g) A technical discussion of the proposed electricity export’s reliability, fuel use and system stability impact on the applicant’s present and prospective electric power supply system. Applicant must explain why the proposed electricity export will not impair the sufficiency of electric supply on its system and why the export will not impede or tend to impede the regional coordination of electric utility planning or operation.
(h) The original application shall be signed and verified under oath by an officer of the applicant having knowledge of the matters set forth therein.
§ 205.303 Required exhibits.
There shall be filed with the application and as a part thereof the following exhibits:
(a) Exhibit A. A copy of the agreement or proposed agreement under which the electricity is to be transmitted including a listing of the terms and conditions. If this agreement contains proprietary information that should not be released to the general public, the applicant must identify such data and include a statement explaining why proprietary treatment is appropriate.
(b) Exhibit B. A showing, including a signed opinion of counsel, that the proposed export of electricity is within the corporate power of the applicant, and that the applicant has complied or will comply with all pertinent Federal and State laws.
(c) Exhibit C. A general map showing the applicant’s overall electric system and a detailed map highlighting the location of the facilities or the proposed facilities to be used for the generation and transmission of the electric energy to be exported. The detailed map shall identify the location of the proposed border crossing point(s) or power transfer point(s) by Presidential Permit number whenever possible.
(d) Exhibit D. If an applicant resides or has its principal office outside the United States, such applicant shall designate, by irrevocable power of attorney, an agent residing within the United States. A verified copy of such power of attorney shall be furnished with the application.
(e) Exhibit E. A statement of any corporate relationship or existing contract between the applicant and any other person, corporation, or foreign government, which in any way relates to the control or fixing of rates for the purchase, sale or transmission of electric energy.
(f) Exhibit F. An explanation of the methodology (Operating Procedures) to inform neighboring electric utilities in the United States of the available capacity and energy which may be in excess of the applicant’s requirements before delivery of such capacity to the foreign purchaser. Approved firm export, diversity exchange and emergency exports are exempted from this requirement. Those materials required by this section which have been filed previously with the ERA may be incorporated by reference.
§ 205.304 Other information.
Where the application is for authority to export less than 1,000,000 kilowatt hours annually, applicants need not furnish the information called for in §§ 205.302(g) and 205.303 (Exhibit C). Applicants, regardless of the amount of electric energy to be exported, may be required to furnish such supplemental information as the ERA may deem pertinent.
§ 205.305 Transferability.
(a) An authorization to transmit electric energy from the United States to a foreign country granted by order of the ERA under section 202(e) of the Federal Power Act shall not be transferable or assignable. Provided written notice is given to the ERA within 30 days, the authorization may continue in effect temporarily in the event of the involuntary transfer of this authority by operation of law (including transfers to receivers, trustees, or purchasers under foreclosure or judicial sale). This continuance is contingent on the filing of an application for permanent authorization and may be effective until a decision is made thereon.
(b) In the event of a proposed voluntary transfer of this authority to export electricity, the transferee and the transferor shall file jointly an application pursuant to this subsection, setting forth such information as required by §§ 205.300 through 205.304, together with a statement of reasons for the transfer.
(c) The ERA may at any time subsequent to the original order of authorization, after opportunity for hearing, issue such supplemental orders as it may find necessary or appropriate.
§ 205.306 Authorization not exclusive.
No authorization granted pursuant to section 202(e) of the Act shall be deemed to prevent an authorization from being granted to any other person or entity to export electric energy or to prevent any other person or entity from making application for an export authorization.
§ 205.307 Form and style; number of copies
An original and two conformed copies of an application containing the information required under §§ 205.300 through 205.309 must be filed.
§ 205.308 Filing schedule and annual reports.
(a) Persons authorized to transmit electric energy from the United States shall promptly file all supplements, notices of succession in ownership or operation, notices of cancellation, and certificates of concurrence. In general, these documents should be filed at least 30 days prior to the effective date of any change.
(b) A change in the tariff arrangement does not require an amendment to the authorization. However, any entity with an authorization to export electric energy shall file with the ERA, and the appropriate state regulatory agency, a certified copy of any changed rate schedule and terms. Such changes may take effect upon the date of filing of informational data with the ERA.
(c) Persons receiving authorization to transmit electric energy from the United States shall submit to the ERA, by February 15 each year, a report covering each month of the preceding calendar year detailing the gross amount of kilowatt-hours of energy, by authorized category, received or delivered, and the cost and revenue associated with each category.
§ 205.309 Filing procedures and fees.
Applications shall be addressed to the Office of Utility Systems of the Economic Regulatory Administration. Every application shall be accompanied by a fee of $500.00. Fee payment shall be by check, draft, or money order payable to the Treasurer of the United States. Copies of applications and notifications of rate changes shall be furnished to the Federal Energy Regulatory Commission and all affected State public utility regulatory agencies.
Application for Presidential Permit Authorizing the Construction, Connection, Operation, and Maintenance of Facilities for Transmission of Electric Energy at International Boundaries
§ 205.320 Who shall apply.
(a) Any person, firm, co-operative, corporation or other entity who operates an electric power transmission or distribution facility crossing the border of the United States, for the transmission of electric energy between the United States and a foreign country, shall have a Presidential Permit, in compliance with Executive Order 10485, as amended by Executive Order 12038. Such applications should be filed with the Office of Utility Systems of the Economic Regulatory Administration.
E.O. 12038, dated February 3, 1978, amended E.O. 10485, dated September 3, 1953, to delete the words “Federal Power Commission” and “Commission” and substitute for each “Secretary of Energy.” E.O. 10485 revoked and superseded E.O. 8202, dated July 13, 1939.
(b) In connection with applications hereunder, attention is directed to the provisions of §§ 205.300 to 205.309, above, concerning applications for authorization to transmit electric energy from the United States to a foreign country pursuant to section 202(e) of the Federal Power Act.
§ 205.321 Time of filing.
Pursuant to the DOE’s responsibility under the National Environmental Policy Act, the DOE must make an environmental determination of the proposed action. If, as a result of this determination, an environmental impact statement (EIS) must be prepared, the permit processing time normally will be 18-24 months. If no environmental impact statement is required, then a six-month processing time normally would be sufficient.
§ 205.322 Contents of application.
Every application shall be accompanied by a fee prescribed in § 205.326 of this subpart and shall provide, in the order indicated, the following:
(a) Information regarding the applicant. (1) The legal name of the applicant;
(2) The legal name of all partners;
(3) The name, title, post office address, and telephone number of the person to whom correspondence in regard to the application shall be addressed;
(4) Whether the applicant or its transmission lines are owned wholly or in part by a foreign government or directly or indirectly assisted by a foreign government or instrumentality thereof; or whether the applicant has any agreement pertaining to such ownership by or assistance from any foreign government or instrumentality thereof.
(5) List all existing contracts that the applicant has with any foreign government, or any foreign private concerns, relating to any purchase, sale or delivery of electric energy.
(6) A showing, including a signed opinion of counsel, that the construction, connection, operation, or maintenance of the proposed facility is within the corporate power of the applicant, and that the applicant has complied with or will comply with all pertinent Federal and State laws;
(b) Information regarding the transmission lines to be covered by the Presidential Permit. (1)(i) A technical description providing the following information: (A) Number of circuits, with identification as to whether the circuit is overhead or underground; (B) the operating voltage and frequency; and (C) conductor size, type and number of conductors per phase.
(ii) If the proposed interconnection is an overhead line the following additional information must also be provided: (A) The wind and ice loading design parameters; (B) a full description and drawing of a typical supporting structure including strength specifications; (C) structure spacing with typical ruling and maximum spans; (D) conductor (phase) spacing; and (E) the designed line to ground and conductor side clearances.
(iii) If an underground or underwater interconnection is proposed, the following additional information must also be provided: (A) Burial depth; (B) type of cable and a description of any required supporting equipment, such as insulation medium pressurizing or forced cooling; and (C) cathodic protection scheme. Technical diagrams which provide clarification of any of the above items should be included.
(2) A general area map with a scale not greater than 1 inch = 40 kilometers (1 inch = 25 miles) showing the overall system, and a detailed map at a scale of 1 inch = 8 kilometers (1 inch = 5 miles) showing the physical location, longitude and latitude of the facility on the international border. The map shall indicate ownership of the facilities at or on each side of the border between the United States and the foreign country. The maps, plans, and description of the facilities shall distinguish the facilities or parts thereof already constructed from those to be constructed.
(3) Applications for the bulk power supply facility which is proposed to be operated at 138 kilovolts or higher shall contain the following bulk power system information:
(i) Data regarding the expected power transfer capability, using normal and short time emergency conductor ratings;
(ii) System power flow plots for the applicant’s service area for heavy summer and light spring load periods, with and without the proposed international interconnection, for the year the line is scheduled to be placed in service and for the fifth year thereafter. The power flow plots submitted can be in the format customarily used by the utility, but the ERA requires a detailed legend to be included with the power flow plots;
(iii) Data on the line design features for minimizing television and/or radio interference caused by operation of the subject transmission facilities;
(iv) A description of the relay protection scheme, including equipment and proposed functional devices;
(v) After receipt of the system power flow plots, the ERA may require the applicant to furnish system stability analysis for the applicant’s system.
(c) Information regarding the environmental impacts shall be provided as follows for each routing alternative:
(1) Statement of the environmental impacts of the proposed facilities including a list of each flood plain, wetland, critical wildlife habitat, navigable waterway crossing, Indian land, or historic site which may be impacted by the proposed facility with a description of proposed activities therein.
(2) A list of any known Historic Places, as specified in 36 CFR part 800, which may be eligible for the National Register of Historic Places.
(3) Details regarding the minimum right-of-way width for construction, operation and maintenance of the transmission lines and the rationale for selecting that right-of-way width.
(4) A list of threatened or endangered wildlife or plant life which may be located in the proposed alternative.
(d) A brief description of all practical alternatives to the proposed facility and a discussion of the general environmental impacts of each alternative.
(e) The original of each application shall be signed and verified under oath by an officer of the applicant, having knowledge of the matters therein set forth.
§ 205.323 Transferability.
(a) Neither a permit issued by the ERA pursuant to Executive Order 10485, as amended, nor the facility shall be transferable or assignable. Provided written notice is given to the ERA within 30 days, the authorization may continue in effect temporarily in the event of the involuntary transfer of the facility by operation of law (including transfers to receivers, trustees, or purchases under foreclosure or judicial sale). This continuance is contingent on the filing of an application for a new permit and may be effective until a decision is made thereon.
(b) In the event of a proposed voluntary transfer of the facility, the permittee and the party to whom the transfer would be made shall file a joint application with the ERA pursuant to this paragraph, setting forth information as required by § 205.320 et seq., together with a statement of reasons for the transfer. The application shall be accompanied by a filing fee pursuant to § 205.326.
(c) No substantial change shall be made in any facility authorized by permit or in the operation thereof unless or until such change has been approved by the ERA.
(d) Permits may be modified or revoked without notice by the President of the United States, or by the Administrator of the ERA after public notice.
§ 205.324 Form and style; number of copies.
All applicants shall file an original and two conformed copies of the application and all accompanying documents required under §§ 205.320 through 205.327.
§ 205.325 Annual report.
Persons receiving permits to construct, connect, operate or maintain electric transmission facilities at international boundaries shall submit to the ERA, by February 15 each year, a report covering each month of the preceding calendar year, detailing by category the gross amount of kilowatt-hours of energy received or delivered and the cost and revenue associated with each category.
§ 205.326 Filing procedures and fees.
Applications shall be forwarded to the Office of Utility Systems of the Economic Regulatory Administration and shall be accompanied by a filing fee of $150. The application fee will be charged irrespective of the ERA’s disposition of the application. Fee payment shall be by check, draft, or money order payable to the Treasurer of the United States. Copies of applications shall be furnished to the Federal Energy Regulatory Commission and all affected State public utility regulatory agencies.
§ 205.327 Other information.
The applicant may be required after filing the application to furnish such supplemental information as the ERA may deem pertinent. Such requests shall be written and a prompt response will be expected. Protest regarding the supplying of such information should be directed to the Administrator of the ERA.
§ 205.328 Environmental requirements for Presidential Permits—Alternative 1.
(a) NEPA Compliance. Except as provided in paragraphs (c) and (e) of this section, when an applicant seeks a Presidential Permit, such applicant will be responsible for the costs of preparing any necessary environmental document, including an Environmental Impact Statement (EIS), arising from ERA’s obligation to comply with the National Environmental Policy Act of 1969 (NEPA). ERA will determine whether an environmental assessment (EA) or EIS is required within 45 days of the receipt of the Presidential Permit application and of environmental information submitted pursuant to 10 CFR 205.322 (c) and (d). ERA will use these and other sources of information as the basis for making the environmental determination:
(1) If an EIS is determined to be necessary, the applicant shall enter into a contract with an independent third party, which may be a Government-owned, contractor-operated National Laboratory, or a qualified private entity selected by ERA. The third party contractor must be qualified to conduct an environmental review and prepare an EIS, as appropriate, under the supervision of ERA, and may not have a financial or other interest in the outcome of the proceedings. The NEPA process must be completed and approved before ERA will issue a Presidential Permit.
(2) If an EA is determined to be necessary, the applicant may be permitted to prepare an environmental assessment pursuant to 10 CFR 1506.5(b) for review and adoption by ERA, or the applicant may enter into a third party contract as set forth in this section.
(b) Environmental Review Procedure. Except as provided in paragraphs (c) and (e) of this section, environmental documents, including the EIS, where necessary, will be prepared utilizing the process set forth above. ERA, the applicant, and the independent third party, which may be a Government-owned, contractor-operated National Laboratory or a private entity, shall enter into an agreement in which the applicant will engage and pay directly for the services of the qualified third party to prepare the necessary environmental documents. The agreement shall outline the responsibilities of each party and its relationship to the other two parties regarding the work to be done or supervised. ERA shall approve the information to be developed and supervise the gathering, analysis and presentation of the information. In addition, ERA will have the authority to approve and modify any statement, analysis, and conclusion contained in the environmental documents prepared by the third party. Before commencing preparation of the environmental document the third party will execute an ERA-prepared disclosure document stating that it does not have any conflict of interest, financial or otherwise, in the outcome of either the environmental process or the Permit application.
(c) Financial Hardship. Whenever ERA determines that a project is no longer economically feasible, or that a substantial financial burden would be imposed by the applicant bearing all of the costs of the NEPA studies, ERA may waive the requirement set forth in paragraphs (a) and (b) of this section and perform the necessary environmental review, completely or in part, with its own resources.
(d) Discussions Prior to Filing. Prior to the preparation of any Presidential Permit application and environmental report, a potential applicant is encouraged to contact ERA and each affected State public utility regulatory agency to discuss the scope of the proposed project and the potential for joint State and Federal environmental review.
(e) Federal Exemption. Upon a showing by the applicant that it is engaged in the transaction of official business of the Federal Government in filing the application pursuant to 10 CFR 205.320 et seq., it will be exempt from the requirements of this section.
§ 205.329 Environmental requirements for Presidential Permits—Alternative 2.
(a) NEPA Compliance. Except as provided in paragraph (b) and (e) of this section, applicants seeking Presidential Permits will be financially responsible for the expenses of any contractor chosen by ERA to prepare any necessary environmental document arising from ERA’s obligation to comply with the National Environmental Policy Act of 1969 (NEPA) in issuing such Presidential Permits:
(1) ERA will determine whether an Environmental Impact Statement (EIS) or an Environmental Assessment (EA) is required within 45 days of receipt of the Presidential Permit application and of the environmental information submitted pursuant to 10 CFR 205.322 (c) and (d). ERA will use these and other sources of information as the basis for making the environmental determination.
(2) If an EIS is determined to be necessary, ERA will notify the applicant of the fee for completing the EIS within 90 days after the submission of the application and environmental information. The fee shall be based on the expenses estimated to be incurred by DOE in contracting to prepare the EIS (i.e., the estimated fee charges to ERA by the contractor). DOE employee salaries and other fixed costs, as set forth in OMB Circular A-25, shall not be included in the applicant’s fee. Fee payment shall be by check, draft, or money order payable to the Treasurer of the United States, and shall be submitted to ERA. Upon submission of fifty percent of the environmental fee, ERA will provide to the applicant a tentative schedule for completion of the EIS.
(3) If an EA is determined to be necessary, the applicant may be permitted to prepare an environmental assessment pursuant to 40 CFR 1506.5(b) for review and adoption by ERA, or the applicant may choose to have ERA prepare the EA pursuant to the fee procedures set forth above.
(4) The NEPA process must be completed and approved before ERA will issue a Presidential Permit.
(b) Financial Hardship. Whenever ERA determines that a project is no longer economically feasible, or that a substantial financial burden would be imposed by the applicant bearing all of the costs of the NEPA studies, ERA may waive the requirement set forth in paragraphs (a) and (b) of this section and perform the necessary environmental review, completely or in part, with its own resources.
(c) Discussions Prior to Filing. Prior to the preparation of any Presidential Permit application and environmental assessment, a potential applicant is encouraged to contact ERA and each affected State public utility regulatory agency to discuss the scope of the proposed project and the potential for joint State and Federal environmental review.
(d) Fee Payment. The applicant shall make fee payment for completing the EIS to ERA in the following manner:
(1) 50 percent of the total amount due to be paid within 30 days of receipt of the fee information from DOE;
(2) 25 percent to be paid upon publication of the draft EIS; and
(3) 25 percent to be paid upon publication of the final EIS.
(e) Federal Exemption. Upon a showing by the applicant that it is engaged in the transaction of official business of the Federal Government in filing an application pursuant to 10 CFR 205.320 et seq., it will be exempt from the requirements of this section.
Report of Major Electric Utility System Emergencies
§ 205.350 General purpose.
The purpose of this rule is to establish a procedure for the Office of International Affairs and Energy Emergencies (IE) to obtain current information regarding emergency situations on the electric energy supply systems in the United States so that appropriate Federal emergency response measures can be implemented in a timely and effective manner. The data also may be utilized in developing legislative recommendations and reports to the Congress.
§ 205.351 Reporting requirements.
For the purpose of this section, a report or a part of a report may be made jointly by two or more entities. Every electric utility or other entity engaged in the generation, transmission or distribution of electric energy for delivery and/or sale to the public shall report promptly, through the DOE Emergency Operations Center, by telephone, the occurrence of any event such as described in paragraphs (a) through (d) of this section. These reporting procedures are mandatory. Entities that fail to comply within 24 hours will be contacted and reminded of their reporting obligation.
(a) Loss of Firm System Loads, caused by:
(1) Any load shedding actions resulting in the reduction of over 100 megawatts (MW) of firm customer load for reasons of maintaining the continuity of the bulk electric power supply system.
(2) Equipment failures/system operational actions attributable to the loss of firm system loads for a period in excess of 15 minutes, as described below:
(i) Reports from entities with a previous year recorded peak load of over 3000 MW are required for all such losses of firm loads which total over 300 MW.
(ii) Reports from all other entities are required for all such losses of firm loads which total over 200 MW or 50 percent of the system load being supplied immediately prior to the incident, whichever is less.
(3) Other events or occurrences which result in a continuous interruption for 3 hours or longer to over 50,000 customers, or more than 50 percent of the total customers being served immediately prior to the interruption, whichever is less.
(b) Voltage Reductions or Public Appeals:
(1) Reports are required for any anticipated or actual system voltage reductions of 3 percent or greater for purposes of maintaining the continuity of the bulk electric power supply system.
(2) Reports are required for any issuance of a public appeal to reduce the use of electricity for purposes of maintaining the continuity of the bulk electric power system.
(c) Vulnerabilities that could Impact System Reliability:
(1) Reports are required for any actual or suspected act(s) of physical sabotage (not vandalism) or terrorism directed at an electric power supply system, local or regional, in an attempt to either:
(i) Disrupt or degrade the service reliability of the local or regional bulk electric power supply system, or
(ii) Disrupt, degrade, or deny bulk electric power service to:
(A) A specific facility (industrial, military, governmental, private), or
(B) A specific service (transportation, communications), or
(C) A specific locality (town, city, county).
(2) Reports are required for any abnormal emergency system operating condition(s) or other event(s) which in the judgment of the reporting entity could or would constitute a hazard to maintaining the continuity of the bulk electric power supply system. Examples will be provided in the DOE pamphlet on reporting procedures.
(d) Fuel Supply Emergencies:
(1) Reports are required for any anticipated or existing fuel supply emergency situation which would threaten the continuity of the bulk electric power supply system, such as:
(i) Fuel stocks or hydro project water storage levels are at 50 percent (or less) of normal for that time of the year, and a continued downward trend is projected.
(ii) Unscheduled emergency generation is dispatched causing an abnormal use of a particular fuel type, such that the future supply or stocks of that fuel could reach a level which threatens the reliability or adequacy of electric service.
§ 205.352 Information to be reported.
The emergency situation data shall be supplied to the DOE Emergency Operations Center in accordance with the current DOE pamphlet on reporting procedures. The initial report shall include the utility name; the area affected; the time of occurrence of the initiating event; the duration or an estimate of the likely duration; an estimate of the number of customers and amount of load involved; and whether any known critical services such as hospitals, military installations, pumping stations or air traffic control systems, were or are interrupted. To the extent known or reasonably suspected, the report shall include a description of the events initiating the disturbance. The DOE may require further clarification during or after restoration of service.
§ 205.353 Special investigation and reports.
If directed by the Director, Office of Energy Emergency Operations in writing and noticed in the
Emergency Interconnection of Electric Facilities and the Transfer of Electricity To Alleviate an Emergency Shortage of Electric Power
§ 205.370 Applicability.
Sections 202(c) and 202(d) of the Federal Power Act are applicable to any “entity” which owns or operates electric power generation, transmission or distribution facilities. An “entity” is a private or public corporation (utility), a governmental agency, a municipality, a cooperative or a lawful association of the foregoing. Under this section, the DOE has the authority to order the temporary connection of facilities, or the generation or delivery of electricity, which it deems necessary to alleviate an emergency. Such orders shall be effective for the time specified and will be subject to the terms and conditions the DOE specifies. The DOE retains the right to cancel, modify or otherwise change any order, with or without notice, hearing, or report. Requests for action under these regulations will be accepted from any “entity,” State Public Utility Commission, State Energy Agency, or State Governor. Actions under these regulations also may be initiated by the DOE on its own motion. Orders under this authority may be made effective without prior notice.
§ 205.371 Definition of emergency.
“Emergency,” as used herein, is defined as an unexpected inadequate supply of electric energy which may result from the unexpected outage or breakdown of facilities for the generation, transmission or distribution of electric power. Such events may be the result of weather conditions, acts of God, or unforeseen occurrences not reasonably within the power of the affected “entity” to prevent. An emergency also can result from a sudden increase in customer demand, an inability to obtain adequate amounts of the necessary fuels to generate electricity, or a regulatory action which prohibits the use of certain electric power supply facilities. Actions under this authority are envisioned as meeting a specific inadequate power supply situation. Extended periods of insufficient power supply as a result of inadequate planning or the failure to construct necessary facilities can result in an emergency as contemplated in these regulations. In such cases, the impacted “entity” will be expected to make firm arrangements to resolve the problem until new facilities become available, so that a continuing emergency order is not needed. Situations where a shortage of electric energy is projected due solely to the failure of parties to agree to terms, conditions or other economic factors relating to service, generally will not be considered as emergencies unless the inability to supply electric service is imminent. Where an electricity outage or service inadequacy qualifies for a section 202(c) order, contractual difficulties alone will not be sufficient to preclude the issuance of an emergency order.
§ 205.372 Filing procedures; number of copies.
An original and two conformed copies of the applications and reports required under §§ 205.370 through 205.379 shall be filed with the Division of Power Supply and Reliability, Department of Energy. Copies of all documents also shall be served on:
(a) The Federal Energy Regulatory Commission;
(b) Any State Regulatory Agency having responsibility for service standards, or rates of the “entities” that are affected by the requested order;
(c) Each “entity” suggested as a potential source for the requested emergency assistance;
(d) Any “entity” that may be a potential supplier of transmission services;
(e) All other “entities” not covered under paragraphs (c) and (d) of this section which may be directly affected by the requested order; and
(f) The appropriate Regional Reliability Council.
§ 205.373 Application procedures.
Every application for an emergency order shall set forth the following information as required. This information shall be considered by the DOE in determining that an emergency exists and in deciding to issue an order pursuant to sections 202(c) and 202(d) of the Federal Power Act.
(a) The exact legal name of the applicant and of all other “entities” named in the application.
(b) The name, title, post office address, and telephone number of the person to whom correspondence in regard to the application shall be addressed.
(c) The political subdivision in which each “entity” named in the application operates, together with a brief description of the area served and the business conducted in each location.
(d) Each application for a section 202(c) order shall include the following baseline data:
(1) Daily peak load and energy requirements for each of the past 30 days and projections for each day of the expected duration of the emergency;
(2) All capacity and energy receipts or deliveries to other electric utilities for each of the past 30 days, indicating the classification for each transaction;
(3) The status of all interruptible customers for each of the past 30 days and the anticipated status of these customers for each day of the expected duration of the emergency, assuming both the granting and the denial of the relief requested herein;
(4) All scheduled capacity and energy receipts or deliveries to other electric utilities for each day of the expected duration of the emergency.
(e) A description of the situation and a discussion of why this is an emergency, including any necessary background information. This should include any contingency plan of the applicant and the current level of implementation.
(f) A showing that adequate electric service to firm customers cannot be maintained without additional power transfers.
(g) A description of any conservation or load reduction actions that have been implemented. A discussion of the achieved or expected results or these actions should be included.
(h) A description of efforts made to obtain additional power through voluntary means and the results of such efforts; and a showing that the potential sources of power and/or transmission services designated pursuant to paragraphs (i) through (k) of this section informed that the applicant believed that an emergency existed within the meaning of § 205.371.
(i) A listing of proposed sources and amounts of power necessary from each source to alleviate the emergency and a listing of any other “entities” that may be directly affected by the requested order.
(j) Specific proposals to compensate the supplying “entities” for the emergency services requested and to compensate any transmitting “entities” for services necessary to deliver such power.
(k) A showing that, to the best of the applicant’s knowledge, the requested relief will not unreasonably impair the reliability of any “entity” directly affected by the requested order to render adequate service to its customers.
(l) Description of the facilities to be used to transfer the requested emergency service to the applicant’s system.
(1) If a temporary interconnection under the provisions of section 202(c) is proposed independently, the following additional information shall be supplied for each such interconnection:
(i) Proposed location;
(ii) Required thermal capacity or power transfer capability of the interconnection;
(iii) Type of emergency services requested, including anticipated duration;
(iv) An electrical one line diagram;
(v) A description of all necessary materials and equipment; and
(vi) The projected length of time necessary to complete the interconnection.
(2) If the requested emergency assistance is to be supplied over existing facilities, the following information shall be supplied for each existing interconnection:
(i) Location;
(ii) Thermal capacity of power transfer capability of interconnection facilities; and
(iii) Type and duration of emergency services requested.
(m) A general or key map on a scale not greater than 100 kilometers to the centimeter showing, in separate colors, the territory serviced by each “entity” named in the application; the location of the facilities to be used for the generation and transmission of the requested emergency service; and all connection points between systems.
(n) An estimate of the construction costs of any proposed temporary facilities and a statement estimating the expected operation and maintenance costs on an annualized basis. (Not required on section 202(d) applications.)
(o) Applicants may be required to furnish such supplemental information as the DOE may deem pertinent.
§ 205.374 Responses from “entities” designated in the application.
Each “entity” designated as a potential source of emergency assistance or as a potential supplier of transmission services and which has received a copy of the application under § 205.373, shall have three (3) calendar days from the time of receipt of the application to file the information designated below with the DOE. The DOE will grant extensions of the filing period when appropriate. The designated “entities” shall provide an analysis of the impact the requested action would have on its system reliability and its ability to supply its own interruptible and firm customers. The effects of the requested action on the ability to serve firm loads shall be clearly distinguished from the ability to serve contractually interruptible loads. The designated “entity” also may provide other information relevant to the requested action, which is not included in the reliability analysis. Copies of any response shall be provided to the applicant, the Federal Energy Regulatory Commission, any State Regulatory Agency having responsibility for service standards or rates of any “entity” that may be directly involved in the proposed action, and the appropriate Regional Electric Reliability Council. Pursuant to section 202(c) of the Federal Power Act, DOE may issue an emergency order even though a designated “entity” has failed to file a timely response.
§ 205.375 Guidelines defining inadequate fuel or energy supply.
An inadequate utility system fuel inventory or energy supply is a matter of managerial and engineering judgment based on such factors as fuels in stock, fuels en route, transportation time, and constraints on available storage facilities. A system may be considered to have an inadequate fuel or energy supply capability when, combined with other conditions, the projected energy deficiency upon the applicant’s system without emergency action by the DOE, will equal or exceed 10 percent of the applicant’s then normal daily net energy for load, or will cause the applicant to be unable to meet its normal peak load requirements based upon use of all of its otherwise available resources so that it is unable to supply adequate electric service to its ultimate customers. The following conditions will be considered in determining that a system has inadequate fuel or energy supply capability:
(1) System coal stocks are reduced to 30 days (or less) of normal burn days and a continued downward trend in stock is projected;
(2) System residual oil stocks are reduced to 15 days (or less) of normal burn days and a continued downward trend in stocks is projected;
(3) System distillate oil stocks which cannot be replaced by alternate fuels are reduced to 15 days (or less) of normal burn days and a continued downward trend in stocks is projected;
(4) System natural gas deliveries which cannot be replaced by alternate fuels have been or will be reduced 20 percent below normal requirements and no improvement in natural gas deliveries is projected within 30 days;
(5) Delays in nuclear fuel deliveries will extend a scheduled refueling shutdown by more than 30 days; and
(6) Water supplies required for power generation have been reduced to the level where the future adequacy of the power supply may be endangered and no near term improvement in water supplies is projected.
§ 205.376 Rates and charges.
The applicant and the generating or transmitting systems from which emergency service is requested are encouraged to utilize the rates and charges contained in approved existing rate schedules or to negotiate mutually satisfactory rates for the proposed transactions. In the event that the DOE determines that an emergency exists under section 202(c), and the “entities” are unable to agree on the rates to be charged, the DOE shall prescribe the conditions of service and refer the rate issues to the Federal Energy Regulatory Commission for determination by that agency in accordance with its standards and procedures.
§ 205.377 Reports.
In addition to the information specified below, the DOE may require additional reports as it deems necessary.
(a) Where the DOE has authorized the temporary connection of transmission facilities, all “entities” whose transmission facilities are thus temporarily interconnected shall report the following information to the DOE within 15 days following completion of the interconnection:
(1) The date the temporary interconnection was completed;
(2) The location of the interconnection;
(3) A description of the interconnection; and
(4) A one-line electric diagram of the interconnection.
(b) Where the DOE orders the transfer of power, the “entity” receiving such service shall report the following information to the DOE by the 10th of each month for the preceding month’s activity for as long as such order shall remain in effect:
(1) Amounts of capacity and/or energy received each day;
(2) The name of the supplier;
(3) The name of any “entity” supplying transmission services; and
(4) Preliminary estimates of the associated costs.
(c) Where the DOE has approved the installation of permanent facilities that will be used only during emergencies, any use of such facilities shall be reported to the DOE within 24 hours. Details of such usage shall be furnished as deemed appropriate by the DOE after such notification.
(d) Any substantial change in the information provided under § 205.373 shall be promptly reported to the DOE.
§ 205.378 Disconnection of temporary facilities.
Upon the termination of any emergency for the mitigation of which the DOE ordered the construction of temporary facilities, such facilities shall be disconnected and any temporary construction removed or otherwise disposed of, unless application is made as provided in § 205.379 for permanent connection for emergency use. This disconnection and removal of temporary facilities shall be accomplished within 30 days of the termination of the emergency unless an extension is granted by the DOE. The DOE shall be notified promptly when such removal of facilities is completed.
§ 205.379 Application for approval of the installation of permanent facilities for emergency use only.
Application for DOE approval of a permanent connection for emergency use only shall conform with the requirements in § 205.373. However, the baseline data specified in § 205.373(d) need not be included in an application made under this section. In addition, the application shall state in full the reasons why such permanent connection for emergency use is in the public interest.
Internal Procedures for Issuance of a Grid Security Emergency Order
§ 205.380 Definitions.
As used in this subpart:
Bulk-power system means the same as the definition of such term in paragraph (1) of section 215(a) of the Federal Power Act.
Critical electric infrastructure means the same as the definition of such term in paragraph (2) of section 215A(a) of the Federal Power Act.
Defense critical electric infrastructure means the same as the definition of such term in paragraph (4) of section 215A(a) of the Federal Power Act.
Department means the United States Department of Energy.
Electric Reliability Organization means the same as the definition of such term in paragraph (2) of section 215(a) of the Federal Power Act.
Electricity Information Sharing and Analysis Center (E-ISAC) means the organization, operated on behalf of the electricity subsector by the Electric Reliability Organization, that gathers and analyzes security information, coordinates incident management, and communicates mitigation strategies with stakeholders within the electricity subsector, across interdependent sectors, and with government partners. The E-ISAC, in collaboration with the Department of Energy and the Electricity Subsector Coordinating Council, serves as the primary security communications channel for the electricity subsector and enhances the subsector’s ability to prepare for and respond to cyber and physical threats, vulnerabilities, and incidents.
Electricity subsector means both commercial and industrial actors who generate and deliver electric power.
Electricity Subsector Coordinating Council (ESCC) means the organization that aims to foster and facilitate the coordination of sector-wide, policy-related activities and initiatives designed to improve the reliability and resilience of the electricity subsector, including physical and cyber security infrastructure.
Electromagnetic pulse means the same as the definition of such term in paragraph (5) of section 215A(a) of the Federal Power Act.
Emergency & Incident Management Council (EIMC) means the organization, internal to the Department of Energy and chaired by the Deputy Secretary of Energy, designed to increase cooperation and coordination across the Department to prepare for, mitigate, respond to, and recover from emergencies.
Emergency measures means measures necessary in the judgment of the Secretary to protect or restore the reliability of critical electric infrastructure or of defense critical electric infrastructure during a grid security emergency as defined in section 215A(a) of the Federal Power Act.
Emergency order means an order for emergency measures under section 215A(b) of the Federal Power Act.
Geomagnetic storm means a temporary disturbance of the Earth’s magnetic field resulting from solar activity.
Grid security emergency means the same as the definition of such term in paragraph (7) of section 215A(a) of the Federal Power Act. A grid security emergency is “declared” once the President of the United States has issued and provided to the Secretary a written directive or determination identifying the emergency.
Regional entity means an entity having enforcement authority under section 215(e)(4) of the Federal Power Act, 16 U.S.C. 824o(e)(4).
Secretary means the Secretary of Energy.
§ 205.381 Applicability of emergency orders.
An order for emergency measures under section 215A(b) of the Federal Power Act (emergency order) may apply to the Electric Reliability Organization, a regional entity or entities, or any owner, user, or operator of critical electric infrastructure or of defense critical electric infrastructure within the United States. Emergency measures may be issued if deemed necessary in the judgment of the Secretary to protect or restore the reliability of critical electric infrastructure or of defense critical electric infrastructure during a presidentially-declared grid security emergency.
§ 205.382 Issuing an emergency order.
(a) The Secretary will use the procedures outlined in this section in issuing emergency orders, unless the Secretary determines that alternative procedures are more appropriate for the unique circumstances presented by the emergency. In all instances, the Secretary has final authority on the procedures to be used in issuing an emergency order.
(b) Upon the Department’s receipt of the President’s written directive or determination identifying a grid security emergency, the Emergency & Incident Management Council (EIMC) will convene at least one emergency meeting. Resulting from this meeting, the EIMC’s responsibilities will include, but not be limited to:
(1) Assigning consultation and situational awareness tasks;
(2) Creating ad hoc task groups;
(3) Assigning recommendation development tasks to the ad hoc task groups it has created; and
(4) Presenting its recommendations to the Secretary as expeditiously as possible and practicable.
(c) Following receipt of the EIMC’s recommendations, unless the Secretary has determined alternative procedures are appropriate, the Secretary will issue an emergency order as quickly as the Secretary determines that the situation requires.
§ 205.383 Consultation.
(a) To obtain information related to a particular grid security emergency and recommended emergency measures from those government entities, electric reliability organizations, and private sector companies, and their respective associations where applicable, affected by the emergency, the office that is delegated the authority by the Secretary will conduct consultation related to each emergency order. Before an emergency order is put into effect and, to the extent practicable in light of the nature of the grid security emergency and the urgency of the need for action, efforts will be made to consult with at least the following, as appropriate:
(1) The Electricity Subsector Coordinating Council;
(2) The Electricity Information Sharing and Analysis Center;
(3) The Electric Reliability Organization;
(4) Regional entities; and
(5) Owners, users, or operators of critical electric infrastructure or of defense critical electric infrastructure within the United States; and
(6) At least the following government entities:
(i) Authorities in the government of Canada;
(ii) Authorities in the government of Mexico;
(iii) Appropriate Federal and State agencies including, but not limited to, those supporting Emergency Support Function No. 12;
(iv) The Federal Energy Regulatory Commission; and
(v) The Nuclear Regulatory Commission.
(b) The Department recognizes the expertise of electric grid owners and operators and other consulted entities in seeking to ensure that emergency orders result in the safe and effective operation of the electric grid, align with additional priorities including evidence collection, and comply with existing regulatory requirements, where required. The Department will endeavor, to the extent practicable, to conduct consultation in alignment with the existing Emergency Support Function No. 12 structure and established emergency management processes under the National Response Framework.
§ 205.384 Communication of orders.
The Department will communicate the contents of an emergency order to the entities subject to the order, utilizing the most expedient form or forms of communication under the circumstances. The Department will attempt to conduct communication of emergency orders in alignment with the existing Emergency Support Function No. 12 structure and established emergency management procedures under the National Response Framework by relying on existing coordinating bodies, such as the ESCC and the E-ISAC, and, recognizing the existence of established crisis communication procedures, any other form or forms of communication most expedient under the particular circumstances. To the extent practicable under the particular circumstances, efforts will be made to declassify eligible information to ensure maximum distribution.
§ 205.385 Clarification or reconsideration.
(a) Any entity subject to an emergency order may request clarification or reconsideration of the emergency order. All such requests must be submitted in writing to the Secretary. The Department will post all such requests on the DOE website consistent with 10 CFR part 1004. To the extent the ordered entity believes the grid security emergency order lacks necessary clarity for implementation, or conflicts with the technically feasible operations of the electric grid or existing regulatory requirements, the ordered entity should seek immediate clarification from the Department.
(b) Upon receipt of a request for clarification or reconsideration, the Secretary may, in his or her sole discretion, order a stay of the emergency order for which such clarification or rehearing is sought. The Secretary will act as soon as practicable on each request, with or without further proceedings. Such responsive actions may include granting or denying the request or abrogating or modifying the order, in whole or in part.
§ 205.386 Temporary access to classified and sensitive information.
(a) To the extent practicable, and consistent with obligations to protect classified and sensitive information, the Secretary may provide temporary access to classified and sensitive information, at the level necessary in light of the conditions of the incident, related to a grid security emergency for which emergency measures are issued to key personnel of any entity subject to such emergency measures, to the extent the Secretary deems necessary under the circumstances. The purpose of this access, as defined under section 215A(b)(7) of the Federal Power Act, is to enable optimum communication between the entity and the Secretary and other appropriate Federal agencies regarding the grid security emergency.
(b) CEII will be shared, where deemed necessary by the Secretary, in accordance with 10 CFR part 1004.
§ 205.387 Tracking compliance.
Beginning at the time the Secretary issues an emergency order, the Department may, at the discretion of the Secretary, require the entity or entities subject to an emergency order to provide a detailed account of actions taken to comply with the terms of the emergency order.
§ 205.388 Enforcement.
In accordance with available enforcement authorities, the Secretary may take or seek enforcement action against any entity subject to an emergency order who fails to comply with the terms of that emergency order.
§ 205.389 Rehearing and judicial review.
The procedures of Part III of the Federal Power Act apply to motions for rehearing of an emergency order. A request for clarification or reconsideration filed under § 205.385 of this subpart, if the filling entity so designates, may serve as a request for rehearing pursuant to section 313(a) of the Federal Power Act.
§ 205.390 Liability exemptions.
(a) To the extent any action or omission taken by an entity that is necessary to comply with an emergency order issued pursuant to section 215A(b)(1) of the Federal Power Act and this Part, including any action or omission taken to voluntarily comply with such order, results in noncompliance with, or causes such entity not to comply with any rule, order, regulation, or provision of or under the Federal Power Act, including any reliability standard approved by the Federal Energy Regulatory Commission pursuant to section 215 of the Federal Power Act, the Department will not consider such action or omission to be a violation of such rule, order, regulation, or provision.
(b) The Department will treat an action or omission by an owner, operator, or user of critical electric infrastructure or of defense critical electric infrastructure to comply with an emergency order issued pursuant to section 215A(b)(1) of the Federal Power Act as the functional equivalent of an action or omission taken to comply with an order issued under section 202(c) of the Federal Power Act for purposes of section 202(c).
(c) The liability exemptions specified in paragraphs (a) and (b) of this section do not apply to an entity that, in the course of complying with an emergency order by taking an action or omission for which the entity would otherwise be liable, takes such action or omission in a grossly negligent manner.
§ 205.391 Termination of an emergency order.
(a) An emergency order will expire no later than 15 days after its issuance. The Secretary may reissue an emergency order for subsequent periods, not to exceed 15 days for each such period, provided that the President, for each such period, issues and provides to the Secretary a written directive or determination that the grid security emergency for which the Secretary intends to reissue an emergency order continues to exist or that the emergency measures continue to be required.
(b) The Secretary may rescind an emergency order after finding that the grid security emergency for which that order was issued has ended, and that protective or mitigation measures required by that order have been sufficiently taken.
(c) An entity or entities subject to an emergency order issued under this subpart may, at any time, request termination of the emergency order by demonstrating, in a petition to the Secretary, that the emergency no longer exists and that protective or mitigation measures required by the order have been sufficiently taken.
PART 207—COLLECTION OF INFORMATION
Subpart A—Collection of Information Under the Energy Supply and Environmental Coordination Act of 1974
§ 207.1 Purpose.
The purpose of this subpart is to set forth the manner in which energy information which the Administrator is authorized to obtain by sections 11 (a) and (b) of ESECA will be collected.
§ 207.2 Definitions.
As used in this subpart:
Administrator means the Federal Energy Administrator of his delegate.
Energy information includes all information in whatever form on (1) fuel reserves, exploration, extraction, and energy resources (including petrochemical feedstocks) wherever located; (2) production, distribution, and consumption of energy and fuels, wherever carried on; and (3) matters relating to energy and fuels such as corporate structure and proprietary relationships, costs, prices, capital investment, and assets, and other matters directly related thereto, wherever they exist.
ESECA means the Energy Supply and Environmental Coordination Act of 1974 (Pub. L. 93-319).
EPAA means the Emergency Petroleum Allocation Act of 1973 (Pub. L. 93-159).
DOE means the Department of Energy.
Person means any natural person, corporation, partnership, association, consortium, or any entity organized for a common business purpose, wherever situated, domiciled, or doing business, who directly or through other persons subject to their control does business in any part of the United States.
United States, when used in the geographical sense, means the States, the District of Columbia, Puerto Rico, and the territories and possessions of the United States.
§ 207.3 Method of collecting energy information under ESECA.
(a) Whenever the Administrator determines that:
(1) Certain energy information is necessary to assist in the formulation of energy policy or to carry out the purposes of the ESECA of the EPAA; and
(2) Such energy information is not available to DOE under the authority of statutes other than ESECA or that such energy information should, as a matter of discretion, be collected under the authority of ESECA;
(b) The Administrator may require such reports of any person who is engaged in the production, processing, refining, transportation by pipeline, or distribution (at other than the retail level) of energy resources.
(c) The Administrator may require such reports by rule, order, questionnaire, or such other means as he determines appropriate.
(d) Whenever reports of energy information are requested under this subpart, the rule, order, questionnaire, or other means requesting such reports shall contain (or be accompanied by) a recital that such reports are being requested under the authority of ESECA.
(e) In addition to requiring reports, the Administrator may, at his discretion, in order to obtain energy information under the authority of ESECA:
(1) Sign and issue subpoenas in accordance with the provisions of § 205.8 of this chapter for the attendance and testimony of witnesses and the production of books, records, papers, and other documents;
(2) Require any person, by rule or order, to submit answers in writing to interrogatories, requests for reports or for other information, with such answers or other submissions made within such reasonable period as is specified in the rule or order, and under oath; and
(3) Administer oaths.
(f) For the purpose of verifying the accuracy of any energy information requested, acquired, or collected by the DOE, the Administrator, or any officer or employee duly designated by him, upon presenting appropriate credentials and a written notice from the Administrator to the owner, operator, or agent in charge, may—
(1) Enter, at reasonable times, any business premise of facility; and
(2) Inspect, at reasonable times and in a reasonable manner, any such premise or facility, inventory and sample any stock of energy resources therein, and examine and copy books, records, papers, or other documents, relating to any such energy information.
§ 207.4 Confidentiality of energy information.
(a) Information obtained by the DOE under authority of ESECA shall be available to the public in accordance with the provisions of part 202 of this chapter. Upon a showing satisfactory to the Administrator by any person that any energy information obtained under this subpart from such person would, if made public, divulge methods or processes entitled to protection as trade secrets or other proprietary information of such person, such information, or portion thereof, shall be deemed confidential in accordance with the provisions of section 1905 of title 18, United States Code; except that such information, or part thereof, shall not be deemed confidential pursuant to that section for purposes of disclosure, upon request, to (1) any delegate of the DOE for the purpose of carrying out ESECA or the EPAA, (2) the Attorney General, the Secretary of the Interior, the Federal Trade Commission, the Federal Power Commission, or the General Accounting Office, when necessary to carry out those agencies’ duties and responsibilities under ESECA and other statutes, and (3) the Congress, or any Committee of Congress upon request of the Chairman.
(b) Whenever the Administrator requests reports of energy information under this subpart, he may specify (in the rule, order or questionnaire or other means by which he has requested such reports) the nature of the showing required to be made in order to satisfy DOE that certain energy information contained in such reports warrants confidential treatment in accordance with this section. He shall, to the maximum extent practicable, either before or after requesting reports, by ruling or otherwise, inform respondents providing energy information pursuant to this subpart of whether such information will be made available to the public pursuant to requests under the Freedom of Information Act (5 U.S.C. 552).
§ 207.5 Violations.
Any practice that circumvents or contravenes or results in a circumvention or contravention of the requirements of any provision of this subpart or any order issued pursuant thereto is a violation of the DOE regulations stated in this subpart.
§ 207.6 Notice of probable violation and remedial order.
(a) Purpose and scope. (1) This section establishes the procedures for determining the nature and extent of violations of this subpart and the procedures for issuance of a notice of probable violation, a remedial order or a remedial order for immediate compliance.
(2) When the DOE discovers that there is reason to believe a violation of any provision of this subpart, or any order issued thereunder, has occurred, is continuing or is about to occur, the DOE may conduct proceedings to determine the nature and extent of the violation and may issue a remedial order thereafter. The DOE may commence such proceeding by serving a notice of probable violation or by issuing a remedial order for immediate compliance.
(b) Notice of probable violation. (1) The DOE may begin a proceeding under this subpart by issuing a notice of probable violation if the DOE has reason to believe that a violation has occurred, is continuing, or is about to occur.
(2) Within 10 days of the service of a notice of probable violation, the person upon whom the notice is served may file a reply with the DOE office that issued the notice of probable violation at the address provided in § 205.12 of this chapter. The DOE may extend the 10-day period for good cause shown.
(3) The reply shall be in writing and signed by the person filing it. The reply shall contain a full and complete statement of all relevant facts pertaining to the act or transaction that is the subject of the notice of probable violation. Such facts shall include a complete statement of the business or other reasons that justify the act or transaction, it appropriate; a detailed description of the act or transaction; and a full discussion of the pertinent provisions and relevant facts reflected in any documents submitted with the reply. Copies of all relevant documents shall be submitted with the reply.
(4) The reply shall include a discussion of all relevant authorities, including, but not limited to, DOE rulings, regulations, interpretations, and decisions on appeals and exceptions relied upon to support the particular position taken.
(5) The reply should indicate whether the person requests or intends to request a conference regarding the notice. Any request not made at the time of the reply shall be made as soon thereafter as possible to insure that the conference is held when it will be most beneficial. A request for a conference must conform to the requirements of subpart M of part 205 of this chapter.
(6) If a person has not filed a reply with the DOE within the 10-day period provided, and the DOE has not extended the 10-day period, the person shall be deemed to have conceded the accuracy of the factual allegations and legal conclusions stated in the notice of probable violation.
(7) If the DOE finds, after the 10-day period provided in § 207.6(b)(2), that no violation has occurred, is continuing, or is about to occur, or that for any reason the issuance of a remedial order would not be appropriate, it shall notify, in writing, the person to whom a notice of probable violation has been issued that the notice is rescinded.
(c) Remedial order. (1) If the DOE finds, after the 10-day period provided in § 207.6(b)(2), that a violation has occurred, is continuing, or is about to occur, the DOE may issue a remedial order. The order shall include a written opinion setting forth the relevant facts and the legal basis of the remedial order.
(2) A remedial order issued under this subpart shall be effective upon issuance, in accordance with its terms, until stayed, suspended, modified or rescinded. The DOE may stay, suspend, modify or rescind a remedial order on its own initiative or upon application by the person to whom the remedial order is issued. Such action and application shall be in accordance with the procedures for such proceedings provided for in part 205 of this chapter.
(3) A remedial order may be referred at any time to the Department of Justice for appropriate action in accordance with § 207.7.
(d) Remedial order for immediate compliance. (1) Notwithstanding paragraphs (b) and (c) of this section, the DOE may issue a remedial order for immediate compliance, which shall be effective upon issuance and until rescinded or suspended, if it finds:
(i) There is a strong probability that a violation has occurred, is continuing or is about to occur;
(ii) Irreparable harm will occur unless the violation is remedied immediately; and
(iii) The public interest requires the avoidance of such irreparable harm through immediate compliance and waiver of the procedures afforded under paragraphs (b) and (c) of this section.
(2) A remedial order for immediate compliance shall be served promptly upon the person against whom such order is issued by telex or telegram, with a copy served by registered or certified mail. The copy shall contain a written statement of the relevant facts and the legal basis for the remedial order for immediate compliance, including the findings required by paragraph (d)(1) of this section.
(3) The DOE may rescind or suspend a remedial order for immediate compliance if it appears that the criteria set forth in paragraph (d)(1) of this section are no longer satisfied. When appropriate, however, such a suspension or rescission may be accompanied by a notice of probable violation issued under paragraph (b) of this section.
(4) If at any time in the course of a proceeding commenced by a notice of probable violation the criteria set forth in paragraph (d)(1) of this section are satisfied, the DOE may issue a remedial order for immediate compliance, even if the 10-day period for reply specified in § 207.6(b)(2) of this part has not expired.
(5) At any time after a remedial order for immediate compliance has become effective the DOE may refer such order to the Department of Justice for appropriate action in accordance with § 207.7 of this part.
(e) Remedies. A remedial order or a remedial order for immediate compliance may require the person to whom it is directed to take such action as the DOE determines is necessary to eliminate or to compensate for the effects of a violation.
(f) Appeal. (1) No notice of probable violation issued pursuant to this subpart shall be deemed to be an action of which there may be an administrative appeal.
(2) Any person to whom a remedial order or a remedial order for immediate compliance is issued under this subpart may file an appeal with the DOE Office of Exceptions and Appeals in accordance with the procedures for such appeal provided in subpart H of part 205 of this chapter. The appeal must be filed within 10 days of service of the order from which the appeal is taken.
§ 207.7 Sanctions.
(a) General. (1) Penalties and sanctions shall be deemed cumulative and not mutually exclusive.
(2) Each day that a violation of the provisions of this subpart or any order issued pursuant thereto continues shall be deemed to constitute a separate violation within the meaning of the provisions of this subpart relating to criminal fines and civil penalties.
(b) Criminal penalties. Any person who willfully violates any provision of this subpart or any order issued pursuant thereto shall be subject to a fine of not more than $5,000 for each violation. Criminal violations are prosecuted by the Department of Justice upon referral by the DOE.
(c) Civil Penalties. (1) Any person who violates any provision of this subpart or any order issued pursuant thereto shall be subject to a civil penalty of not more than $12,937 for each violation. Actions for civil penalties are prosecuted by the Department of Justice upon referral by the DOE.
(2) When the DOE considers it to be appropriate or advisable, the DOE may compromise and settle, and collect civil penalties.
§ 207.8 Judicial actions.
(a) Enforcement of subpoenas; contempt. Any United States district court within the jurisdiction of which any inquiry is carried on may, upon petition by the Attorney General at the request of the Administrator, in the case of refusal to obey a subpoena or order of the Administrator issued under this subpart, issue an order requiring compliance. Any failure to obey such an order of the court may be punished by the court as contempt.
(b) Injunctions. Whenever it appears to the Administrator that any person has engaged, is engaged, or is about to engage in any act or practice constituting a violation of any regulation or order issued under this subpart, the Administrator may request the Attorney General to bring a civil action in the appropriate district court of the United States to enjoin such acts or practices and, upon a proper showing, a temporary restraining order or preliminary or permanent injunction shall be granted without bond. The relief sought may include a mandatory injunction commanding any person to comply with any provision of such order or regulation, the violation of which is prohibited by section 12(a) of ESECA, as implemented by this subpart.
§ 207.9 Exceptions, exemptions, interpretations, rulings and rulemaking.
Applications for exceptions, exemptions or requests for interpretations relating to this subpart shall be filed in accordance with the procedures provided in subparts D, E and F, respectively, of part 205 of this chapter. Rulings shall be issued in accordance with the procedures of subpart K of part 205 of this chapter. Rulemakings shall be undertaken in accordance with the procedures provided in subpart L of part 205 of this chapter.
PART 209—INTERNATIONAL VOLUNTARY AGREEMENTS
Subpart A—General Provisions
§ 209.1 Purpose and scope.
This part implements the provisions of the Energy Policy and Conservation Act (EPCA) authorizing the Administrator to prescribe standards and procedures by which persons engaged in the business of producing, transporting, refining, distributing, or storing petroleum may develop and carry out voluntary agreements, and plans of action which are required to implement the information and allocation provisions of the International Energy Program (IEP). The requirements of this part do not apply to activities other than those for which section 252 of EPCA makes available a defense to the antitrust laws.
§ 209.2 Delegation.
To the extent otherwise permitted by law, any authority, duty, or responsibility vested in DOE or the Administrator under these regulations may be delegated to any regular full-time employee of the Department of Energy, and, by agreement, to any regular full-time employee of the Department of Justice or the Department of State.
§ 209.3 Definitions.
For purposes of this part—
(a) Administrator means the Administrator of the Department of Energy.
(b) Information and allocation provisions of the International Energy Program means the provisions of chapter V of the Program relating to the Information System, and the provisions at chapters III and IV thereof relating to the international allocation of petroleum.
(c) International Energy Agency (IEA) means the International Energy Agency established by Decision of the Council of the Organization for Economic Cooperation and Development, dated November 15, 1974.
(d) International Energy Program (IEP) means the program established pursuant to the Agreement on an International Energy Program signed at Paris on November 18, 1974, including (1) the Annex entitled “Emergency Reserves”, (2) any amendment to such Agreement which includes another nation as a Party to such Agreement, and (3) any technical or clerical amendment to such Agreement.
(e) International energy supply emergency means any period (1) beginning on any date which the President determines allocation of petroleum products to nations participating in the international energy program is required by chapters III and IV of such program, and (2) ending on a date on which he determines such allocation is no longer required. Such a period shall not exceed 90 days, except where the President establishes one or more additional periods by making the determination under paragraph (e)(1) of this section.
(f) Potential participant means any person engaged in the business of producing, transporting, refining, distributing, or storing petroleum products; “participant” means any such person who agrees to participate in a voluntary agreement pursuant to a request to do so by the Administrator.
(g) Petroleum or petroleum products means crude oil, residual fuel oil, or any refined petroleum product (including any natural gas liquid and any natural gas liquid product).
Subpart B—Development of Voluntary Agreements
§ 209.21 Purpose and scope.
(a) This subpart establishes the standards and procedures by which persons engaged in the business of producing, transporting, refining, distributing. or storing petroleum products shall develop voluntary agreements which are required to implement the allocation and information provisions of the International Energy Program.
(b) This subpart does not apply to meetings of bodies created by the International Energy Agency.
§ 209.22 Initiation of meetings.
(a) Any meeting held for the purpose of developing a voluntary agreement involving two or more potential participants shall be initiated and chaired by the Administrator or other regular full-time Federal employee designated by him.
(b) DOE shall provide notice of meetings held pursuant to this subpart, in writing, to the Attorney General, the Federal Trade Commission, and to the Speaker of the House and the President of the Senate for delivery to the appropriate committees of Congress, and to the public through publication in the
§ 209.23 Conduct of meetings.
(a) Meetings to develop a voluntary agreement held pursuant to this subpart shall be open to all interested persons. Interested persons desiring to attend meetings under this subpart may be required pursuant to notice to advise the Administrator in advance.
(b) Interested persons may, as set out in notice provided by the Administrator, present data, views, and arguments orally and in writing, subject to such reasonable limitations with respect to the manner of presentation as the Administrator may impose.
§ 209.24 Maintenance of records.
(a) The Administrator shall keep a verbatim transcript of any meeting held pursuant to this subpart.
(b)(1) Except as provided in paragraphs (b) (2) through (4) of this section, potential participants shall keep a full and complete record of any communications (other than in a meeting held pursuant to this subpart) between or among themselves for the purpose of developing a voluntary agreement under this part. When two or more potential participants are involved in such a communication, they may agree among themselves who shall keep such record. Such record shall include the names of the parties to the communication and the organizations, if any, which they represent; the date of the communication; the means of communication; and a description of the communication in sufficient detail to convey adequately its substance.
(2) Where any communication is written (including, but not limited to, telex, telegraphic, telecopied, microfilmed and computer printout material), and where such communication demonstrates on it face that the originator or some other source furnished a copy of the communication to the Office of International Affairs, Department of Energy with the notation “Voluntary Agreement” marked on the first page of the document, no participant need record such a communication or send a further copy to the Department of Energy. The Department of Energy may, upon written notice to potential participants, from time to time, or with reference to particular types of documents, require deposit with other offices or officials of the Department of Energy. Where such communication demonstrates that it was sent to the Office of International Affairs, Department of Energy with the notation “Voluntary Agreement” marked on the first page of the document, or such other offices or officials in the Department of Energy has designated pursuant to this section it shall satisfy paragraph (c) of this section, for the purpose of deposit with the Department of Energy.
(3) To the extent that any communication is procedural, administrative or ministerial (for example, if it involves the location of a record, the place of a meeting, travel arrangements, or similar matters), only a brief notation of the date, time, persons involved and description of the communication need be recorded.
(4) To the extent that any communication involves matters which recapitulate matters already contained in a full and complete record, the substance of such matters shall be identified, but need not be recorded in detail, provided that reference is made to the record and the portion thereof in which the substance is fully set out.
(c) Except where the Department of Energy otherwise provides, all records and transcripts prepared pursuant to paragraphs (a) and (b) of this section, shall be deposited within fifteen (15) days after the close of the month of their preparation together with any agreement resulting therefrom, with the Department of Energy, and shall be available to the Department of Justice, the Federal Trade Commission, and the Department of State. Such records and transcripts shall be available for public inspection and copying to the extent set forth in subpart D. Any person depositing material pursuant to this section shall indicate with particularity what portions, if any, the person believes are subject to disclosure to the public pursuant to subpart D and the reasons for such belief.
(d) Any meeting between a potential participant and an official of DOE for the purpose of developing a voluntary agreement shall, if not otherwise required to be recorded pursuant to this section, be recorded by such official as provided in § 204.5.
Subpart C—Carrying Out of Voluntary Agreements and Developing and Carrying Out of Plans of Actions
§ 209.31 Purpose and scope.
This subpart establishes the standards and procedures by which persons engaged in the business of producing, transporting, refining, distributing, or storing petroleum products shall carry out voluntary agreements and develop and carry out plans of action which are required to implement the allocation and information provisions of the International Energy Program.
§ 209.32 Initiation of meetings.
(a) Except for meetings of bodies created by the International Energy Agency, any meeting among participants in a voluntary agreement pursuant to this subpart, for the purpose of carrying out such voluntary agreement or developing or carrying out a plan of action pursuant thereto, shall be initiated and chaired by a full-time Federal employee designated by the Administrator.
(b) Except as provided in paragraph (c) of this section, the Administrator shall provide notice of meetings held pursuant to this subpart, in writing, to the Attorney General, the Federal Trade Commission, and to the Speaker of the House and the President of the Senate for delivery to the appropriate committees of Congress. Except during an international energy supply emergency, notice shall also be provided to the public through publication in the
(c) During an international energy supply emergency, advance notice shall be given to the Attorney General, the Federal Trade Commission and to the Speaker of the House and the President of the Senate for delivery to the appropriate committees of Congress. Such notice may be telephonic or by such other means as practicable, and shall be confirmed in writing.
§ 209.33 Conduct of meetings.
(a) Subject to the provisions of paragraph (c) of this section, meetings held to carry out a voluntary agreement, or to develop or carry out a plan of action pursuant to this subpart, shall be open to all interested persons, subject to limitations of space. Interested persons desiring to attend meetings under this subpart may be required to advise the Administrator in advance.
(b) Interested persons permitted to attend meetings under this section may present data, views, and arguments orally and in writing, subject to such limitations with respect to the manner of presentation as the Administrator may impose.
(c) Meetings held pursuant to this subpart shall not be open to the public to the extent that the President or his delegate finds that disclosure of the proceedings beyond those authorized to attend would be detrimental to the foreign policy interests of the United States, and determines, in consultation with the Administrator, the Secretary of State, and the Attorney General, that a meeting shall not be open to interested persons or that attendance by interested persons shall be limited.
(d) The requirements of this section do not apply to meetings of bodies created by the International Energy Agency except that no participant in a voluntary agreement may attend any meeting of any such body held to carry out a voluntary agreement or to develop or to carry out a plan of action unless a full-time Federal employee is present.
§ 209.34 Maintenance of records.
(a) The Administrator or his delegate shall keep a verbatim transcript of any meeting held pursuant to this subpart except where (1) due to considerations of time or other overriding circumstances, the keeping of a verbatim transcript is not practicable, or (2) principal participants in the meeting are representatives of foreign governments. If any such record other than a verbatim transcript, is kept by a designee who is not a full-time Federal employee, that record shall be submitted to the full-time Federal employee in attendance at the meeting who shall review the record, promptly make any changes he deems necessary to make the record full and complete, and shall notify the designee of such changes.
(b)(1) Except as provided in paragraphs (b) (2) through (4) of this section, participants shall keep a full and complete record of any communication (other than in a meeting held pursuant to this subpart) between or among themselves or with any other member of a petroleum industry group created by the International Energy Agency, or subgroup thereof for the purpose of carrying out a voluntary agreement or developing or carrying out a plan of action under this subpart, except that where there are several communications within the same day involving the same participants, they may keep a cumulative record for the day. The parties to a communication may agree among themselves who shall keep such record. Such record shall include the names of the parties to the communication and the organizations, if any, which they represent; the date of communication; the means of communication, and a description of the communication in sufficient detail to convey adequately its substance.
(2) Where any communication is written (including, but not limited to, telex, telegraphic, telecopied, microfilmed and computer printout material), and where such communication demonstrates on its face that the originator or some other source furnished a copy of the communication to the Office of International Affairs, Department of Energy with the notation “Voluntary Agreement” on the first page of the document, no participants need record such a communication or send a further copy to the Department of Energy. The Department of Energy may, upon written notice to participants, from time to time, or with reference to particular types of documents, require deposit with other offices or officials of the Department of Energy. Where such communication demonstrates that it was sent to the Office of International Affairs, Department of Energy with the notation “Voluntary Agreement” on the first page of the document, or such other offices or officials as the Department of Energy has designated pursuant to this section, it shall satisfy paragraph (c) of this section, for the purpose of deposit with the Department of Energy.
(3) To the extent that any communication is procedural, administrative or ministerial (for example, if it involves the location of a record, the place of a meeting, travel arrangements, or similar matters) only a brief notation of the date, time, persons involved and description of the communication need be recorded; except that during an IEA emergency allocation exercise or an allocation systems test such a non-substantive communication between members of the Industry Supply Advisory Group (ISAG) which occur within IEA headquarters need not be recorded.
(4) To the extent that any communication involves matters which recapitulate matters already contained in a full and complete record, the substance of such matters shall be identified, but need not be recorded in detail, provided that reference is made to the record and the portion thereof in which the substance is fully set out.
(c) Except where the Department of Energy otherwise provides, all records and transcripts prepared pursuant to paragraphs (a) and (b) of this section, shall be deposited within seven (7) days after the close of the week (ending Saturday) of their preparation during an international energy supply emergency or a test of the IEA emergency allocation system, and within fifteen (15) days after the close of the month of their preparation during periods of non-emergency, together with any agreement resulting therefrom, with the Department of Energy and shall be available to the Department of Justice, the Federal Trade Commission, and the Department of State. Such records and transcripts shall be available for public inspection and copying to the extent set forth in subpart D. Any person depositing materials pursuant to this section shall indicate with particularity what portions, if any, the person believes are not subject to disclosure to the public pursuant to subpart D and the reasons for such belief.
(d) Any meeting between a participant and an official of DOE for the purpose of carrying out a voluntary agreement or developing or carrying out a plan of action shall, if not otherwise required to be recorded pursuant to this section, be recorded by such official as provided in § 204.5.
(e) During international oil allocation under chapters III and IV of the IEP or during an IEA allocation systems test, the Department of Energy may issue such additional guidelines amplifying the requirements of these regulations as the Department of Energy determines to be necessary and appropriate.
Subpart D—Availability of Information Relating to Meetings and Communications
§ 209.41 Availability of information relating to meetings and communications.
(a) Except as provided in paragraph (b) of this section, records or transcripts prepared pursuant to this subpart shall be available for public inspection and copying in accordance with section 552 of title 5, United States Code and part 202 of this title.
(b) Matter may be withheld from disclosure under section 552(b) of title 5 only on the grounds specified in:
(1) Section 552(b)(1), applicable to matter specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy. This section shall be interpreted to include matter protected under Executive Order No. 11652 of March 8, 1972, establishing categories and criteria for classification, as well as any other such orders dealing specifically with disclosure of IEP related materials;
(2) Section 552(b)(3), applicable to matter specifically exempted from disclosure by statute; and
(3) So much of section 552(b)(4) as relates to trade secrets.
PART 210—GENERAL ALLOCATION AND PRICE RULES
Subpart A—Recordkeeping
§ 210.1 Records.
(a) The recordkeeping requirements that were in effect on January 27, 1981, in parts 210, 211, and 212 will remain in effect for (1) all transactions prior to February 1, 1981; and (2) all allowed expenses incurred and paid prior to April 1, 1981 under § 212.78 of part 212. These requirements include, but are not limited to, the requirements that were in effect on January 27, 1981, in § 210.92 of this part; in §§ 211.67(a)(5)(ii); 211.89; 211.109, 211.127; and 211.223 of part 211; and in §§ 212.78(h)(5)(ii); 212.78(h)(6); 212.83(c)(2)(iii)(E)(I); 212.83(c)(2)(iii)(E)(II); 212.83(c)(2)(iii); “F
(b) Effective February 5, 1985, paragraph (a) of this section shall apply, to the extent indicated, only to firms in the following categories. A firm may be included in more than one category, and a firm may move from one category to another. The fact that a firm becomes no longer subject to the recordkeeping requirements of one category shall not relieve that firm of compliance with the recordkeeping requirements of any other category in which the firm is still included.
(1) Those firms which are or become parties in litigation with DOE, as defined in paragraph (c)(1) of this section. Any such firm shall remain subject to paragraph (a) of this section. DOE shall notify the firm in writing of the final resolution of the litigation and whether or not any of its records must be maintained for a further period. DOE shall notify a firm which must maintain any records for a further period when such records are no longer needed.
(2)(i) Those firms which as of November 30 1984, have completed making all restitutionary payments required by an administrative or judicial order, consent order, or other settlement or order but which payments are on February 5, 1985, still subject to distribution by DOE. This requirement is applicable to only those firms listed in appendix B. Any such firm shall maintain all records for the time period covered by the administrative or judicial order, consent order, or other settlement or order requiring the payments, evidencing sales volume data for each product subject to controls and customers’ names and addresses, until one of the following: June 30, 1985, unless this period is extended on a firm-by-firm basis; the end of the individual firm’s extension; or the firm is notified in writing that its records are no longer needed.
(ii) Those firms which as of November 30, 1984, are required to make restitutionary or other payments pursuant to an administrative or judicial order, consent order, or other settlement or order. Any such firm shall remain subject to paragraph (a) of this section until the firm completes all restitutionary payments required by the administrative or judicial order, consent order, or other settlement or order. However, after completing all such payments, a firm shall maintain all records described in paragraph (b)(2)(i) of this section until one of the following: Six months after the firm completes all such payments, unless this period is extended on a firm-by-firm basis; the end of the individual firm’s extension; or the firm is notified in writing that its records are no longer needed.
(3)(i) Those firms with completed audits in which DOE has not yet made a determination to initiate a formal enforcement action and firms under audit which do not have outstanding subpoenas. Any such firm shall maintain all records for the period covered by the audit including all records necessary to establish historical prices or volumes which serve as the basis for determining the lawful prices or volumes for any subsequent regulated transaction which is subject to audit, until one of the following: June 30, 1985, unless this period is extended on a firm-by-firm basis; the end of the individual firm’s extension; or the firm is notified in writing by DOE that its records are no longer needed. However, if a firm in this group shall become a party in litigation, the firm shall then be subject to the recordkeeping requirements for firms in litigation set forth in paragraph (b)(1) of this section.
(ii) Those firms under audit which have outstanding subpoenas on February 5, 1985, or which receive subpoenas at any time thereafter or which have supplied records for an audit as the result of a subpoena enforced after November 1, 1983. Any such firm shall remain subject to paragraph (a) of this section until two years after ERA has notified the firm in writing that is in full compliance with the subpoena or until ERA has received from the firm a sworn certification of compliance with the subpoena as required by 10 CFR 205.8. However, if a firm in this group shall become a party in litigation, the firm shall then be subject to the recordkeeping requirements for firms in litigation set forth in paragraph (b)(1) of this section.
(4) Those firms which are subject to requests for data necessary to verify that crude oil qualifies as “newly discovered” crude oil under 10 CFR 212.79. Any such firm shall maintain the records evidencing such data until one of the following: June 30, 1985, unless this period is extended on a firm-by-firm basis; the end of an individual firm’s extension; or the firm is notified in writing by DOE that its records are no longer needed. However, if a firm in this group shall become a party in litigation, the firm shall then be subject to the recordkeeping requirements for firms in litigation set forth in paragraph (b)(1) of this section.
(5) Those firms whose records are determined by DOE as necessary to complete the enforcement activity relating to another firm which is also subject to paragraph (a) of this section unless such firms required to keep records have received certified notice letters specifically describing the records determined as necessary. At that time, the specific notice will control the recordkeeping requirements. These firms have been identified in appendix A. Any such firm shall maintain these records until one of the following: June 30, 1985, unless this period is extended on a firm-by-firm basis; the end of the individual firm’s extension; or the firm is notified in writing by DOE that its records are no longer needed.
(6) Those firms which participated in the Entitlements program. Any such firm shall maintain its Entitlements-related records until six months after the final judicial resolution (including any and all appeals) of Texaco v. DOE, Nos. 84-391, 84-410, and 84-456 (D. Del.), or the firm is notified by DOE that its records are no longer needed, whichever occurs first.
(c) For purposes of this section:
(1) A firm is “a party in litigation” if:
(i)(A) The firm has received a Notice of Probable Violation, a Notice of Probable Disallowance, a Proposed Remedial Order, or a Proposed Order of Disallowance; or
(B) The firm and DOE are parties in a lawsuit arising under the Emergency Petroleum Allocation Act of 1973, as amended (15 U.S.C. 751 et seq.) or 10 CFR parts 205, 210, 211, or 212; and
(ii)(A) There has been no final (that is, non-appealable) administrative or judicial resolution, or
(B) DOE has not informed the firm in writing that the Department has completed its review of the matter.
(2) A firm means any association, company, corporation, estate, individual, joint-venture, partnership, or sole proprietorship, or any other entity, however organized, including charitable, educational, or other eleemosynary institutions, and state and local governments. A firm includes a parent and the consolidated and unconsolidated entities (if any) which it directly or indirectly controls.
The following firms have completed making restitutionary payments to DOE but their payments are still subject to distribution by DOE. Each such firm must maintain relevant records until June 30, 1985, unless this period is extended on a firm-by-firm basis. Relevant records are all records of the firm, including any affiliates, subsidiaries or predecessors in interest, for the time period covered by the judicial or administrative order, consent order, or other settlement or order requiring the payments, evidencing sales volume data for each product subject to controls and customers’ names and addresses.
| Name of firm | Location |
|---|---|
| A. Tarricone Inc | Yonkers, NY. |
| Adolph Coors Company | Golden, CO. |
| Allied Materials Corp & Excel | Oklahoma City, OK. |
| Aminoil USA, Inc | Houston, TX. |
| Amtel, Inc | Providence, RI. |
| Apache Corporation | Minneapolis, MN. |
| APCO Oil Corporation | Oklahoma City, OK. |
| Arapaho Petroleum, Inc | Breckenridge, TX. |
| Arkansas Louisiana Gas Company | Shreveport, LA. |
| Arkla Chemical Corporation | Shreveport, LA. |
| Armour Oil Company | San Diego, CA. |
| Associated Programs Inc | Boca Raton, FL. |
| Atlanta Petroleum Production | Fort Worth, TX. |
| Automatic Heat, Inc | |
| Ayers Oil Company | Canton, MD. |
| Aztex Energy Corporation | Knoxville, TN. |
| Bak Ltd | Narbeth, PA. |
| Bayou State Oil/IDA Gasoline | Shreveport, LA. |
| Bayside Fuel Oil Depot Corp | Brooklyn, NY. |
| Belridge Oil Company | Los Angeles, CA. |
| Blaylock Oil Co., Inc | Homestead, FL. |
| Blex Oil Company | Minneapolis, MN. |
| Boswell Oil Company | Cincinnati, OH. |
| Box, Cloyce K | Dallas, TX. |
| Breckenridge Gasoline Company | Kansas City, KS. |
| Brownlie, Wallace, Armstrong | Denver, CO. |
| Bucks Butane & Propane Service | San Jose, CA. |
| Budget Airport Associates | Los Angeles, CA. |
| Busler Enterprises Inc | Evansville, IN. |
| Butler Petroleum Corp | Butler, PA. |
| C.K. Smith & Company, Inc | Worcester, MA. |
| Cap Oil Company | Tulsa, OK. |
| Champlain Oil Co., Inc | South Burlington, VT. |
| Chapman, H.A | Tulsa, OK. |
| Cibro Gasoline Corporation | Bronx, NY. |
| City Service Inc | Kalispell, MT. |
| Coastal Corporation | Houston, TX. |
| Coline Gasoline Corporation | Santa Fe Springs, CA. |
| Collins Oil Co | Aurora, IL. |
| Columbia Oil Co | Hamilton, OH. |
| Conlo Service Inc | East Farmingdale, NY. |
| Conoco, Inc | Houston, TX. |
| Consolidated Gas Supply Corp | Hastings, WV. |
| Consolidated Leasing Corp | Los Angeles, CA. |
| Consumers Oil Co | Rosemead, CA. |
| Continental Resources Company | Winter Park, FL. |
| Cordele Operating Co | Corsicana, TX. |
| Cosby Oil Co., Inc | Whittier, CA. |
| Cougar Oil Co | Selma, AL. |
| Cross Oil Co., Inc | Wellstone, MO. |
| Crystal Oil Company (formerly Vallery Corp.) | Shreveport, LA. |
| Crystal Petroleum Co | Corpus Christi, TX. |
| Devon Corporation | Oklahoma City, OK. |
| Dorchester Gas Corp | Dallas, TX. |
| E.B. Lynn Oil Company | Allentown, PA. |
| E.M. Bailey Distributing Co | Paducah, KY. |
| Eagle Petroleum Co | Wichita Falls, TX. |
| Earls Broadmoor | Houma, LA. |
| Earth Resources Co | Dallas, TX. |
| Eastern Petroleum Corp | Annapolis, MD. |
| Edington Oil Co | Los Angeles, CA. |
| Elias Oil Company | West Palm Beach, FL. |
| Elm City Filling Stations, Inc | New Haven, CT. |
| Empire Oil Co | Bloomington, CA. |
| Endicott, Eugene | Redmond, OR. |
| Enserch Corp | Dallas, TX. |
| Enterprise Oil & Gas Company | Detroit, MI. |
| F.O. Fletcher, Inc | Tacoma, WA. |
| Fagadau Energy Corporation | Dallas, TX. |
| Farstad Oil Company | Minot, ND. |
| Field Oil Co., Inc | Ogden, UT. |
| Fine Petroleum Co., Inc | Norfolk, VA. |
| Foster Oil Co | Richmond, MI. |
| Franks Petroleum Inc | Shreveport, LA. |
| Froesel Oil Co | |
| Gas Systems Inc | Ft. Worth, TX. |
| Gate Petroleum Co., Inc | Jacksonville, FL. |
| GCO Minerals Company | Houston, TX. |
| Getty Oil Company | Los Angeles, CA. |
| Gibbs Industries, Inc | Revere, MA. |
| Glaser Gas Inc | Calhoun, CO. |
| Glover, Lawrence H | Patchogue, NY. |
| Goodman Oil Company | Boise, ID. |
| Grant Rent a Car Corporation | Los Angeles, CA. |
| Grimes Gasoline Co | Tulsa, OK. |
| Gulf Energy & Development Corp. (also known as Gulf Energy Development Corp.) | San Antonio, TX. |
| Gulf Oil Corp | Houston, TX. |
| Gull Industries, Inc | Seattle, WA. |
| H.C. Lewis Oil Co | Welch, WV. |
| Hamilton Brothers Petroleum Co | Denver, CO. |
| Harris Enterprise Inc | Portland, OR. |
| Heller, Glenn Martin | Boston, MA. |
| Hendel’s Inc | Waterford, CT. |
| Henry H. Gungoll Associates | Enid, OK. |
| Hertz Corporation, The | New York, NY. |
| Hines Oil Co | Murphysboro, IL. |
| Horner & Smith, A Partnership | Houston, TX. |
| Houston Natural Gas Corp | Houston, TX. |
| Howell Corporation/Quintana Refinery Co | Houston, TX. |
| Hunt Industries | Dallas, TX. |
| Hunt Petroleum Corp | Dallas, TX. |
| Husky Oil Company of Delaware | Cody, WY. |
| Ideal Gas Co., Inc | Nyassa, OR. |
| Independent Oil & Tire Company | Elyria, OH. |
| Inland USA, Inc | St. Louis, MO. |
| Inman Oil Co | Salem, MO. |
| Internorth, Inc | Omaha, NE. |
| J.E. DeWitt, Inc | South El Monte, CA. |
| J.M. Huber Corp | Houston, TX. |
| James Petroleum Corp | Bakersfield, CA. |
| Jay Oil Company | Fort Smith, AR. |
| Jimmys Gas Stations Inc | Auburn, ME. |
| Jones Drilling Corporation | Duncan, OK. |
| Juniper Petroleum Corporation | Denver, CO. |
| Kansas-Nebraska Natural Gas Co | Hastings, NE. |
| Keller Oil Company, Inc | Effingham, IL. |
| Kenny Larson Oil Co., Inc | |
| Kent Oil & Trading Company | Houston, TX. |
| Key Oil Co., Inc | Tuscaloosa, AL. |
| Key Oil Company | Bowling Green, KY. |
| Kiesel Co | St. Louis, MO. |
| King & King Enterprise | Kansas City, MO. |
| Kingston Oil Supply Corp | Port Ewen, NY. |
| Kirby Oil Company | |
| L & L Oil Co., Inc | Belle Chasse, LA. |
| L.P. Rech Distributing Co | Roundup, MT. |
| La Gloria Oil and Gas Co | Houston, TX. |
| Lakes Gas Co., Inc | Forest Lake, MN. |
| Lakeside Refining Co./Crystal | Southfield, MI. |
| Landsea Oil Company | Irvine, CA. |
| Leathers Oil Co., Inc | Portland, OR. |
| Leese Oil Company | Pocatello, ID. |
| Leonard E. Belcher, Inc | Springfield, MA. |
| Lincoln Land Oil Co | Springfield, IL. |
| Liquid Products Recovery | Houston, TX. |
| Little America Refining Co | Salt Lake City, UT. |
| Lockheed Air Terminal Inc | Burbank, CA. |
| Lowe Oil Company | Clinton, MO. |
| Lucia Lodge Arco | Big Sur, CA. |
| Luke Brothers Inc | Calera, OK. |
| Lunday Thargard Oil | South Gate, CA. |
| Malco Industries Inc | Cleveland, OH. |
| Mapco, Inc | Tulsa, OK. |
| Marine Petroleum Co | St. Louis, MO. |
| Marlen L. Knutson Dist. Inc | Stanwood, WA. |
| Martin Oil Service, Inc | Blue Island, IL. |
| Martinoil Company | Fresno, CA. |
| Marvel Fuel Oil and Gas Co | |
| McCarty Oil Co | Wapakoneta, OH. |
| McCleary Oil Co., Inc | Chambersburg, OH. |
| McClure’s Service Station | Salisbury, PA. |
| McTan Corporation | Abilene, TX. |
| Mesa Petroleum Company | Amarillo, TX. |
| Midway Oil Co | Rock Island, IL. |
| Midwest Industrial Fuels, Inc | La Crosse, WI. |
| Mississippi River Transmission | St. Louis, MO. |
| Mitchell Energy Corp | Woodlands, TX. |
| Montana Power Co | Butte, MT. |
| Moore Terminal and Barge Co | Monroe, LA. |
| Mountain Fuel Supply Company | Salt Lake City, UT. |
| Moyle Petroleum Co | Rapid City, SD. |
| Mustang Fuel Corporation | Oklahoma City, OK. |
| Naphsol Refining Company | Muskegon, MI. |
| National Helium Corporation | Liberal, KS. |
| National Propane Corp | Wyandanch, NY. |
| Navajo Refining Company | Dallas, TX. |
| Nielson Oil & Propane, Inc | West Point, NE. |
| Northeast Petroleum Industries | Chelsea, MA. |
| Northeastern Oil Co., Inc | Gillette, WY. |
| Northwest Pipeline Corp | Salt Lake City, UT. |
| O’Connell Oil Co | Pittsfield, MA. |
| Oceana Terminal Corp. et al | Bronx, NY. |
| OKC Corporation | Dallas, TX. |
| Olin Corporation | Stamford, CT. |
| Oneok Incorporation | Tulsa, OK. |
| Ozona Gas Processing Plant | Tyler, TX. |
| Pacer Oil Co. of Florida, Inc | Ormond Beach, FL. |
| Pacific Northern Oil | Seattle, WA. |
| Panhandle Eastern (Century) | Houston, TX. |
| Parade Company | Shreveport, LA. |
| Parham Oil Corporation | Nashville, TN. |
| Pasco Petroleum Co., Inc | Phoenix, AZ. |
| Pedersen Oil, Inc | Silverdale, WA. |
| Pennzoil Company | Houston, TX. |
| Perry Gas Processors, Inc | Odessa, TX. |
| Peoples Energy Corp | Chicago, IL. |
| Perta Oil Marketing Corp | Beverly Hills, CA. |
| Peterson Petroleum Inc | Hudson, NY. |
| Petro-Lewis Corp | Denver, CO. |
| Petrolane-Lomita Gasoline Co | Long Beach, CA. |
| Petroleum Heat & Power Co. Inc | Stamford, CT. |
| Petroleum Sales/Services Inc | Buffalo, NY. |
| Pioneer Corp | Amarillo, TX. |
| Planet Engineers Inc | Denver, CO. |
| Plateau, Inc | Albuquerque, NM. |
| Plaquemines Oil Sales | Belle Chasse, LA. |
| Point Landing Inc | Hanrahan, LA. |
| Port Oil Company, Inc | Mobile, AL. |
| Post Petroleum Co | West Sacramento, CA. |
| Power Pak Co., Inc | Houston, TX. |
| Pride Refining, Inc | Abilene, TX. |
| Pronto Gas Co | Abilene, TX. |
| Propane Gas & Appliance Co | New Brockton, AL. |
| Prosper Energy Corporation | Dallas, TX. |
| Pyro Energy Corporation | Evansville, IN. |
| Pyrofax Gas Corporation | Houston, TX. |
| Quaker State Oil | Oil City, PA. |
| Quarles Petroleum, Inc | Fredericksburg, VA. |
| Resources Extraction Process | Houston, TX. |
| Reynolds Oil Co | Kremling, CO. |
| Richardson Ayers Jobbers, Inc | Alexandria, LA. |
| Riverside Oil, Inc | Evansville, IN. |
| Roberts Oil Co. Inc | Albuquerque, NM. |
| Rookwood Oil Terminals Inc | Cincinnati, OH. |
| Saber Energy, Inc | Houston, TX. |
| Sanesco Oil Co | Escondido, CA. |
| Schroeder Oil Company | Carroll, IA. |
| Seminole Refining Inc | St. Marks, FL. |
| Sid Richardson Carbon & Gas | Ft. Worth, TX. |
| Sigmore Corporation | San Antonio, TX. |
| Southwestern Refining Co., Inc | Salt Lake City, UT. |
| Speedway Petroleum Co., Inc | Fitchburg, MA. |
| St. James Resources Corp | Boston, MA. |
| Standard Oil Co. (Indiana) | Chicago, IL. |
| Stinnes Inter Oil Inc | New York, NY. |
| Tenneco Oil Company | Houston, TX. |
| Texas/Arkansas/Colorado/Oklahoma/Oil Purchasing | Dallas, TX. |
| Texas Gas & Exploration | Dallas, TX. |
| Texas Oil & Gas Corporation | Dallas, TX. |
| Texas Pacific Oil Company, Inc | Dallas, TX. |
| The True Companies | Casper, WY. |
| Thompson Oil Inc | Purcellville, VA. |
| Tiger Oil Co | Yakima, WA. |
| Time Oil Company | Seattle, WA. |
| Tipperary Corp | Midland, TX. |
| Tippins Oil & Gas Co | Richmond, MO. |
| Triton Oil & Gas Corp | Dallas, TX. |
| U.S. Compressed Gas Company | King of Prussia, PA. |
| U.S. Oil Company | Combined Locks, WI. |
| U.S.A. Petroleum, Inc | Santa Monica, CA. |
| Union Texas Petroleum Corp | Houston, TX. |
| United Oil Company | Hillside, NJ. |
| Upham Oil & Gas Co | Mineral Wells, TX. |
| Vangas Inc | Fresno, CA. |
| VGS Corporation | Jackson, MS. |
| Waller Petroleum Company, Inc | Towson, MD. |
| Warren Holding Company | Providence, RI. |
| Warrior Asphalt Co. of Alabama | Tuscaloosa, AL. |
| Webco Southern Oil Inc | Smyrna, CA. |
| Wellen Oil Co | Jersey City, NJ |
| Wiesehan Oil Co | |
| Willis Distributing Company | Erie, PA. |
| Winston Refining Company | Fort Worth, TX. |
| Witco Chemical Corporation | New York, NY. |
| World Oil Company | Los Angeles, CA. |
| Worldwide Energy Corp | Denver, CO. |
| Young Refining Corporation | Douglasville, GA. |
| Zia Fuels (G.G.C. Corp.) | Hobbs, NM. |
Subparts B-D [Reserved]
PART 212—MANDATORY PETROLEUM PRICE REGULATIONS
Subparts A-C [Reserved]
Subpart D—Producers of Crude Oil
§ 212.78 Tertiary incentive crude oil.
Annual prepaid expenses report. By January 31 of each year after 1980, the project operator with respect to any enhanced oil recovery project for which a report had been filed previously with DOE pursuant to paragraph (h)(2)(i) of this section as that paragraph was in effect on January 27, 1981, shall file with DOE a report in which the operator shall certify to DOE (a) which of the expenses that had been reported previously to DOE pursuant to paragraph (h)(2)(i) of this section as that paragraph was in effect on January 27, 1981, were prepaid expenses; (b) the goods or services for which such expenses had been incurred and paid; (c) the dates on which such goods or services are intended to be used; (d) the dates on which such goods or services actually are used; (e) the identity of each qualified producer to which such prepaid expenses had been attributed; and (f) the percentage of such prepaid expenses attributed to each such qualified producer. An operator shall file an annual prepaid expenses report each year until it has reported the actual use of all the goods and services for which a prepaid expense had been incurred and paid. For purposes of this paragraph, a prepaid expense is an expense for any injectant or fuel used after September 30, 1981, or an expense for any other item to the extent that IRS would allocate the deductions (including depreciation) for that item to the period after September 30, 1981.
Subparts E-I [Reserved]
PART 215—COLLECTION OF FOREIGN OIL SUPPLY AGREEMENT INFORMATION
§ 215.1 Purpose.
The purpose of this part is to set forth certain requirements pursuant to section 13 of the Federal Energy Administration Act to furnish information concerning foreign crude oil supply arrangements. The authority set out in this section is not exclusive.
§ 215.2 Definitions.
As used in this subpart:
Administrator means the Federal Energy Administrator or his delegate.
DOE means the Department of Energy.
Host government means the government of the country in which crude oil is produced and includes any entity which it controls, directly or indirectly.
Person means any natural person, corporation, partnership, association, consortium, or any other entity doing business or domiciled in the U.S. and includes (a) any entity controlled directly or indirectly by such a person and (b) the interest of such a person in any joint venture, consortium or other entity to the extent of entitlement to crude oil by reason of such interest.
§ 215.3 Supply reports.
(a) Any person having the right to lift for export by virtue of any equity interest, reimbursement for services, exchange or purchase, from any country, from fields actually in production, (1) an average of 150,000 barrels per day or more of crude oil for a period of at least one year, or (2) a total of 55,000,000 barrels of crude oil for a period of less than one year, or (3) a total of 150,000,000 barrels of crude oil for the period specified in the agreement, pursuant to supply arrangements with the host government, shall report the following information.
(1) Parties (including partners and percentage interest, where applicable).
(2) Grade or grades available; loading terminal or terminals.
(3) Government imposed production limits, if any.
(4) Minimum lifting obligation and maximum lifting rights.
(5) Details of lifting options within the above limits.
(6) Expiration and renegotiation dates.
(7) Price terms including terms of rebates, discounts, and number of days of credit calculated from the date of loading.
(8) Other payments to or interests retained by the host government (i.e. taxes, royalties, and any other payment to the host government) expressed in terms of the applicable rates or payment or preemption terms, or the base to which those rates or terms are applied.
(9) Related service or other fees and cost of providing services.
(10) Restrictions on shipping or disposition.
(11) Other material contract terms.
(b) Reports under this section shall be made no later than (1) 60 days after final issuance of reporting forms implementing this regulation, as announced in the
(c) Where reports under this section by each participant in a joint operation would be impracticable, or would result in the submission of inaccurate or misleading information, the participants acting together may designate a single participant to report on any of the rights, obligations, or limitations affecting the operation as a whole. Any such designation shall be signed by a duly authorized representative of each participant, and shall specify:
(1) The precise rights, obligations, or limitations to be covered by the designation; and
(2) The reasons for the designation. Such designations shall be submitted to the Assistant Administrator for International Energy Affairs, and shall take effect only upon his written approval, which may at any time be revoked.
§ 215.4 Production of contracts and documents.
Whenever the Administrator determines that certain foreign crude oil supply information is necessary to assist in the formulation of energy policy or to carry out any other function of the Administrator, he may require the production by any person of any agreement or document relating to foreign oil supply arrangements or reports related thereto. Such material shall be provided pursuant to the conditions prescribed by the Administrator at the time of such order or subsequently. As used in this section, the term “agreement” includes proposed or draft agreements, and agreements in which the parties have tentatively concurred but have not yet signed, between or among persons and a host country.
§ 215.5 Pricing and volume reports.
To the extent not reported pursuant to § 215.3, any person lifting for export crude oil from a country shall report to the DOE within 30 days of the date on which he receives actual notice:
(a) Any change (including changes in the timing of collection) by the host government in official selling prices, royalties, host government taxes, service fees, quality or port differentials, or any other payments made directly or indirectly for crude oil; changes in participation ratios; changes in concessionary arrangements; and
(b) Any changes in restrictions on lifting, production, or disposition.
§ 215.6 Notice of negotiations.
Any person conducting negotiations with a host government which may reasonably lead to the establishment of any supply arrangement subject to reporting pursuant to § 215.3(a), or may reasonably have a significant effect on the terms and conditions of an arrangement subject to § 215.3(a), shall notify DOE of such negotiations. Such notice shall be made no later than the later of 30 days after the effective date of this regulation or within 14 days after such negotiations meet the conditions of this section, and shall specify all persons involved and the host government affected. Notice must be in writing to the Assistant Administrator for International Energy Affairs. Where this notice pertains to negotiations to modify a supply agreement previously reported to the Department of Energy under this part, such notice shall include the agreement serial number assigned to the basic agreement.
PART 216—MATERIALS ALLOCATION AND PRIORITY PERFORMANCE UNDER CONTRACTS OR ORDERS TO MAXIMIZE DOMESTIC ENERGY SUPPLIES
§ 216.1 Introduction.
(a) This part describes and establishes the procedures to be used by the Department of Energy (DOE) in considering and making certain findings required by section 101(c)(2)(A) of the Defense Production Act of 1950, as amended, 50 U.S.C. app. 2071(c)(2)(A) (DPA). Section 101(c) authorizes the allocation of, or priority performance under contracts or orders (other than contracts of employment) relating to, materials and equipment, services, or facilities in order to maximize domestic energy supplies if the findings described in section 101(c)(2) are made. Among these findings are that such supplies of materials and equipment, services, or facilities are critical and essential to maintain or further exploration, production, refining, transportation or the conservation of energy supplies or for the construction or maintenance of energy facilities. The function of finding that supplies are critical and essential was delegated to the Secretary of Energy pursuant to E.O. 12919 (59 FR 29525, June 7, 1994) and Department of Commerce Defense Priorities and Allocations System Delegation No. 2, 15 CFR part 700.
(b) The purpose of these regulations is to establish the procedures and criteria to be used by DOE in determining whether programs or projects maximize domestic energy supplies and whether or not supplies of materials and equipment, services, or facilities are critical and essential, as required by DPA section 101(c)(2)(A). The critical and essential finding will be made only for supplies of materials and equipment, services, or facilities related to those programs or projects determined by DOE to maximize domestic energy supplies. These regulations do not require or imply that the findings, on which the exercise of such authority is conditioned, will be made in any particular case.
(c) If DOE determines that a program or project maximizes domestic energy supplies and finds that supplies of materials and equipment, services, or facilities are critical and essential to maintain or further the exploration, production, refining, transportation or conservation of energy supplies or for the construction or maintenance of energy facilities, such determination and finding will be communicated to the Department of Commerce (DOC). If not, the applicant will be so informed. If the determination and finding described in this paragraph are made, DOC, pursuant to DPA section 101(c) and section 203 of E.O. 12919, will find whether or not: The supplies of materials and equipment, services, or facilities in question are scarce; and maintenance or furtherance of exploration, production, refining, transportation, or conservation of energy supplies or the construction or maintenance of energy facilities cannot be reasonably accomplished without exercising the authority specified in DPA section 101(c). If these additional two findings are made, DOC will notify DOE, and DOE will inform the applicant that it has been granted the right to use priority ratings under the Defense Priorities and Allocations System (DPAS) regulation established by the DOC, 15 CFR part 700.
§ 216.2 Definitions.
As used in these regulations:
(a) Secretary means the Secretary of the Department of Energy.
(b) Applicant means a person requesting priorities or allocation assistance in connection with an energy program or project.
(c) Application means the written request of an applicant for assistance.
(d) Assistance means use of the authority vested in the President by DPA section 101(c) to implement priorities and allocation support.
(e) DHS means the Department of Homeland Security.
(f) DOC means the Department of Commerce.
(g) DOE means the Department of Energy.
(h) Defense Priorities and Allocations System Coordination Office means the Department of Energy, Office of Electricity.
(i) Eligible energy program or project means a designated activity which maximizes domestic energy supplies by furthering the exploration, production, refining, transportation or conservation of energy supplies or construction or maintenance of energy facilities within the meaning of DPA section 101(c), as determined by DOE.
(j) Facilities means all types of buildings, structures, or other improvements to real property (but excluding farms, churches or other places of worship, and private dwelling houses), and services relating to the use of any such building, structure, or other improvement.
(k) Materials and equipment means: (1) Any raw materials (including minerals, metals, and advanced processed materials), commodities, articles, components (including critical components), products, and items of supply; and
(2) Any technical information or services ancillary to the use of such raw materials, commodities, articles, components, products, or items.
(l) National Defense means programs for military and energy production or construction, military assistance to any foreign nation, stockpiling, space, and any directly related activity. Such term also includes emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195, et seq.) and critical infrastructure protection and restoration.
(m) Person means an individual, corporation, partnership, association, or any other organized group of persons, or legal successor or representative thereof, or any state or local government or agency thereof.
(n) Services include any effort that is needed for or incidental to:
(1) The development, production, processing, distribution, delivery, or use of an industrial resource, or critical technology item; or
(2) The construction of facilities.
§ 216.3 Requests for assistance.
(a) Persons who believe that they perform work associated with a program or project which may qualify as an eligible energy program or project and wishing to receive assistance as authorized by DPA section 101(c)(1) may submit an application to DOE requesting DOE to determine whether a program or project maximizes domestic energy supplies and to find whether or not specific supplies of materials and equipment, services, or facilities identified in the application are critical and essential for a purpose identified in section 101(c). The application shall be sent to: U.S. Department of Energy, Attn: Office of Electricity, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585. The application shall contain the following information:
(1) The name and address of the applicant and of its duly authorized representative.
(2) A description of the energy program or project for which assistance is requested and an assessment of its impact on the maximization of domestic energy supplies.
(3) The amount of energy to be produced by the program or project which is directly affected by the supplies of the materials and equipment, services, or facilities in question.
(4) A statement explaining why the materials and equipment, services, or facilities for which assistance is requested are critical and essential to the construction or operation of the energy project or program.
(5) A detailed description of the specific supplies of materials and equipment, services, or facilities in connection with which assistance is requested, including: Components, performance data (capacity, life duration, etc.), standards, acceptable tolerances in dimensions and specifications, current inventory, present and expected rates of use, anticipated deliveries and substitution possibilities (feasibility of using other materials and equipment, services, or facilities).
(6) A detailed description of the sources of supply, including: The name of the regular supplying company or companies, other companies capable of supplying the materials and equipment, services, or facilities; location of supplying plants or plants capable of supplying the needed materials and equipment, services, or facilities; possible suppliers for identical or substitutable materials and equipment, services, or facilities and possible foreign sources of supply.
(7) A detailed description of the delivery situation, including: Normal delivery times, promised delivery time without priorities assistance, and delivery time required for expeditious fulfillment or completion of the program or project.
(8) Evidence of the applicant’s unsuccessful efforts to obtain on a timely basis the materials and equipment, services, or facilities in question through normal business channels from current or other known suppliers.
(9) A detailed estimate of the delay in fulfilling or completing the energy program or project which will be caused by inability to obtain the specified materials and equipment, services, or facilities in the usual course of business.
(10) Any known conflicts with rated orders already issued pursuant to the DPA for supplies of the described materials and equipment, services, or facilities.
(b) DOE, on consultation with the DOC, may prescribe standard forms of application or letters of instruction for use by all persons seeking assistance.
(c) In addition to the information described above, DOE may from time to time request whatever additional information it reasonably believes is relevant to the discharge of its functions pursuant to DPA section 101(c).
§ 216.4 Evaluation by DOE of applications.
(a) Based on the information provided by the applicant and other available information, DOE will:
(1) Determine whether or not the energy program or project in connection with which the application is made maximizes domestic energy supplies and should be designated an eligible energy program or project; and
(2) Find whether the described supplies of materials and equipment, services, or facilities are critical and essential to the eligible energy program or project.
(b) In determining whether the program or project referred to in the application should be designated an eligible energy program or project, DOE will consider all factors which it considers relevant including, but not limited to, the following:
(1) Quantity of energy involved;
(2) Benefits of timely energy program furtherance or project completion;
(3) Socioeconomic impact;
(4) The need for the end product for which the materials and equipment, services, or facilities are allegedly required; and
(5) Established national energy policies.
(c) In finding whether the supplies of materials and equipment, services, or facilities described in the application are critical and essential to an eligible energy program or project, DOE will consider all factors which it considers relevant including, but not limited to, the following:
(1) Availability and utility of substitute materials and equipment, services, or facilities; and
(2) Impact of the nonavailability of the specific supplies of materials and equipment, services, or facilities on the furtherance or timely completion of the approved energy program or project.
(d) Increased costs which may be associated with obtaining materials and equipment, services, or facilities without assistance shall not be considered a valid reason for finding the materials and equipment, services, or facilities to be critical and essential.
(e) After DOE has determined a program or project to be an eligible energy program or project, this determination shall be deemed made with regard to subsequent applications involving the same program or project unless and until DOE announces otherwise.
§ 216.5 Notification of findings.
(a) DOE will notify DOC if it finds that supplies of materials and equipment, services, or facilities for which an applicant requested assistance are critical and essential to an eligible energy program or project, and in such cases will forward to DOC the application and whatever information or comments DOE believes appropriate. If DOE believes at any time that findings previously made may no longer be valid, it will immediately notify the DOC and the affected applicant(s) and afford such applicant(s) an opportunity to show cause why such findings should not be withdrawn.
(b) If DOC notifies DOE that DOC has found that supplies of materials and equipment, services, or facilities for which the applicant requested assistance are scarce and that the related eligible energy program or project cannot reasonably be accomplished without exercising the authority specified in DPA section 101(c)(1), DOE will notify the applicant that the applicant is authorized to place rated orders for specific materials and equipment, services, or facilities pursuant to the provisions of the DOC’s DPAS regulation.
§ 216.6 Petition for reconsideration.
If DOE, after evaluating an application in accordance with § 216.4, does not determine that the energy program or project maximizes domestic energy supplies or does not find that the supplies of materials and equipment, services, or facilities described in the application are critical and essential to an eligible energy program or project, it will so notify the applicant and the applicant may petition DOE for reconsideration. If DOE concludes at any time that findings previously made are no longer valid and should be withdrawn, DOE will so notify the affected applicant(s), and such applicant(s) may petition DOE for reconsideration of the withdrawal decision. A petition is deemed accepted when received by DOE at the address stated in § 216.8. DOE will consider the petition for reconsideration and either grant or deny the relief requested. Written notice of the decision and of the reasons for the decision will be provided to the applicant. There has not been an exhaustion of administrative remedies until a petition for reconsideration has been submitted and the review procedure completed by grant or denial of the relief requested. The denial of relief requested in a petition for reconsideration is a final administrative decision.
§ 216.7 Conflict in priority orders.
If it appears that the use of assistance pursuant to DPA section 101(c) creates or threatens to create a conflict with priorities and allocation support provided in connection with the national defense pursuant to DPA section 101(a), DOE will work with the DOC and other claimant agencies affected by the conflict to reschedule deliveries or otherwise accommodate the competing demands. If acceptable solutions cannot be agreed upon by the claimant agencies DHS will attempt to resolve the conflicts.
§ 216.8 Communications.
All written communications concerning these regulations shall be addressed to: U.S. Department of Energy, Attention: Office of Electricity, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585.
§ 216.9 Violations.
Any person who willfully furnishes false information or conceals any material fact in the course of the application process or in a petition for reconsideration is guilty of a crime, and upon conviction may be punished by fine or imprisonment or both.
PART 217—ENERGY PRIORITIES AND ALLOCATIONS SYSTEM
Subpart A—General
§ 217.1 Purpose of this part.
This part provides guidance and procedures for use of the Defense Production Act section 101(a) priorities and allocations authority with respect to all forms of energy necessary or appropriate to promote the national defense. (The guidance and procedures in this part are consistent with the guidance and procedures provided in other regulations that, as a whole, form the Federal Priorities and Allocations System. Guidance and procedures for use of the Defense Production Act priorities and allocations authority with respect to other types of resources are provided for: Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer; health resources; all forms of civil transportation (49 CFR Part 33); water resources; and all other materials, services, and facilities, including construction materials in the Defense Priorities and Allocations System (DPAS) regulation (15 CFR Part 700).) Department of Energy (DOE) regulations at 10 CFR Part 216 describe and establish the procedures to be used by DOE in considering and making certain findings required by section 101(c)(2)(A) of the Defense Production Act of 1950, as amended.
(a) Section 201 of E.O. 12919 (59 FR 29525) delegates the President’s authority under section 101 of the Defense Production Act to require acceptance and priority performance of contracts and orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense to:
(1) The Secretary of Agriculture with respect to food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer;
(2) The Secretary of Energy with respect to all forms of energy;
(3) The Secretary of Health and Human Services with respect to health resources;
(4) The Secretary of Transportation with respect to all forms of civil transportation;
(5) The Secretary of Defense with respect to water resources; and
(6) The Secretary of Commerce for all other materials, services, and facilities, including construction materials.
(b) Section 202 of E.O. 12919 states that the priorities and allocations authority delegated in section 201 of this order may be used only to support programs that have been determined in writing as necessary or appropriate to promote the national defense:
(1) By the Secretary of Defense with respect to military production and construction, military assistance to foreign nations, stockpiling, outer space, and directly related activities;
(2) By the Secretary of Energy with respect to energy production and construction, distribution and use, and directly related activities; and
(3) By the Secretary of Homeland Security with respect to essential civilian needs supporting national defense, including civil defense and continuity of government and directly related activities.
§ 217.3 Program eligibility.
Certain programs to promote the national defense are eligible for priorities and allocations support. These include programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, deploying and sustaining military forces, homeland security, stockpiling, space, and any directly related activity. Other eligible programs include emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq.) and critical infrastructure protection and restoration.
Subpart B—Definitions
§ 217.20 Definitions.
The following definitions pertain to all sections of this part:
Allocation order means an official action to control the distribution of materials, services, or facilities for a purpose deemed necessary or appropriate to promote the national defense.
Allotment means an official action that specifies the maximum quantity or use of a material, service, or facility authorized for a specific use to promote the national defense.
Approved program means a program determined by the Secretary of Defense, the Secretary of Energy, or the Secretary of Homeland Security to be necessary or appropriate to promote the national defense, in accordance with section 202 of E.O. 12919.
Civil transportation includes movement of persons and property by all modes of transportation in interstate, intrastate, or foreign commerce within the United States, its territories and possessions, and the District of Columbia, and, without limitation, related public storage and warehousing, ports, services, equipment and facilities, such as transportation carrier shop and repair facilities. However, “civil transportation” shall not include transportation owned or controlled by the Department of Defense, use of petroleum and gas pipelines, and coal slurry pipelines used only to supply energy production facilities directly. As applied herein, “civil transportation” shall include direction, control, and coordination of civil transportation capacity regardless of ownership.
Construction means the erection, addition, extension, or alteration of any building, structure, or project, using materials or products which are to be an integral and permanent part of the building, structure, or project. Construction does not include maintenance and repair.
Critical infrastructure means any systems and assets, whether physical or cyber-based, so vital to the United States that the degradation or destruction of such systems and assets would have a debilitating impact on national security, including, but not limited to, national economic security and national public health or safety.
Defense Production Act means the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et seq.).
Delegate Agency means a Federal government agency authorized by delegation from the Department of Energy to place priority ratings on contracts or orders needed to support approved programs.
Directive means an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions.
Emergency preparedness means all those activities and measures designed or undertaken to prepare for or minimize the effects of a hazard upon the civilian population, to deal with the immediate emergency conditions which would be created by the hazard, and to effectuate emergency repairs to, or the emergency restoration of, vital utilities and facilities destroyed or damaged by the hazard. Such term includes the following:
(1) Measures to be undertaken in preparation for anticipated hazards (including the establishment of appropriate organizations, operational plans, and supporting agreements, the recruitment and training of personnel, the conduct of research, the procurement and stockpiling of necessary materials and supplies, the provision of suitable warning systems, the construction or preparation of shelters, shelter areas, and control centers, and, when appropriate, the nonmilitary evacuation of the civilian population).
(2) Measures to be undertaken during a hazard (including the enforcement of passive defense regulations prescribed by duly established military or civil authorities, the evacuation of personnel to shelter areas, the control of traffic and panic, and the control and use of lighting and civil communications).
(3) Measures to be undertaken following a hazard (including activities for fire fighting, rescue, emergency medical, health and sanitation services, monitoring for specific dangers of special weapons, unexploded bomb reconnaissance, essential debris clearance, emergency welfare measures, and immediately essential emergency repair or restoration of damaged vital facilities).
Energy means all forms of energy including petroleum, gas (both natural and manufactured), electricity, solid fuels (including all forms of coal, coke, coal chemicals, coal liquification, and coal gasification), and atomic energy, and the production, conservation, use, control, and distribution (including pipelines) of all of these forms of energy.
Facilities includes all types of buildings, structures, or other improvements to real property (but excluding farms, churches or other places of worship, and private dwelling houses), and services relating to the use of any such building, structure, or other improvement.
Farm equipment means equipment, machinery, and repair parts manufactured for use on farms in connection with the production or preparation for market use of food resources.
Fertilizer means any product or combination of products that contain one or more of the elements—nitrogen, phosphorus, and potassium—for use as a plant nutrient.
Food resources means all commodities and products, simple, mixed, or compound, or complements to such commodities or products, that are capable of being ingested by either human beings or animals, irrespective of other uses to which such commodities or products may be put, at all stages of processing from the raw commodity to the products thereof in vendible form for human or animal consumption. “Food resources” also means all starches, sugars, vegetable and animal or marine fats and oils, cotton, tobacco, wool, mohair, hemp, flax fiber, and naval stores, but does not mean any such material after it loses its identity as an agricultural commodity or agricultural product.
Food resource facilities means plants, machinery, vehicles (including on-farm), and other facilities required for the production, processing, distribution, and storage (including cold storage) of food resources, livestock and poultry feed and seed, and for the domestic distribution of farm equipment and fertilizer (excluding transportation thereof).
Hazard means an emergency or disaster resulting from:
(1) A natural disaster; or
(2) An accidental or human-caused event.
Health resources means drugs, biological products, medical devices, diagnostics, materials, facilities, health supplies, services and equipment required to diagnose, prevent the impairment of, improve, or restore the physical or mental health conditions of the population.
Homeland security includes efforts—
(1) To prevent terrorist attacks within the United States;
(2) To reduce the vulnerability of the United States to terrorism;
(3) To minimize damage from a terrorist attack in the United States; and
(4) To recover from a terrorist attack in the United States.
Industrial resources means all materials, services, and facilities, including construction materials, but not including: food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer; all forms of energy; health resources; all forms of civil transportation; and water resources.
Item means any raw, in process, or manufactured material, article, commodity, supply, equipment, component, accessory, part, assembly, or product of any kind, technical information, process, or service.
Maintenance and repair and operating supplies or MRO—
(1) “Maintenance” is the upkeep necessary to continue any plant, facility, or equipment in working condition.
(2) “Repair” is the restoration of any plant, facility, or equipment to working condition when it has been rendered unsafe or unfit for service by wear and tear, damage, or failure of parts.
(3) “Operating supplies” are any resources carried as operating supplies according to a person’s established accounting practice. Operating supplies may include hand tools and expendable tools, jigs, dies, fixtures used on production equipment, lubricants, cleaners, chemicals and other expendable items.
(4) MRO does not include items produced or obtained for sale to other persons or for installation upon or attachment to the property of another person, or items required for the production of such items; items needed for the replacement of any plant, facility, or equipment; or items for the improvement of any plant, facility, or equipment by replacing items which are still in working condition with items of a new or different kind, quality, or design.
Materials includes—
(1) Any raw materials (including minerals, metals, and advanced processed materials), commodities, articles, components (including critical components), products, and items of supply; and
(2) Any technical information or services ancillary to the use of any such materials, commodities, articles, components, products, or items.
(3) Natural resources such as oil and gas.
National defense means programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, homeland security, stockpiling, space, and any directly related activity. Such term includes emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195, et seq.) and critical infrastructure protection and restoration.
Official action means an action taken by the Department of Energy or another resource agency under the authority of the Defense Production Act, E.O. 12919, and this part or another regulation under the Federal Priorities and Allocations System. Such actions include the issuance of Rating Authorizations, Directives, Set Asides, Allotments, Letters of Understanding, Memoranda of Understanding, Demands for Information, Inspection Authorizations, and Administrative Subpoenas.
Person includes an individual, corporation, partnership, association, or any other organized group of persons, or legal successor or representative thereof, or any State or local government or agency thereof.
Rated order means a prime contract, a subcontract, or a purchase order in support of an approved program issued in accordance with the provisions of this part.
Resource agency means any agency delegated priorities and allocations authority as specified in § 217.2.
Secretary means the Secretary of Energy.
Services includes any effort that is needed for or incidental to—
(1) The development, production, processing, distribution, delivery, or use of an industrial resource or a critical technology item;
(2) The construction of facilities;
(3) The movement of individuals and property by all modes of civil transportation; or
(4) Other national defense programs and activities.
Set-aside means an official action that requires a person to reserve materials, services, or facilities capacity in anticipation of the receipt of rated orders.
Stafford Act means title VI (Emergency Preparedness) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5195-5197g).
Water resources means all usable water, from all sources, within the jurisdiction of the United States, which can be managed, controlled, and allocated to meet emergency requirements.
Subpart C—Placement of Rated Orders
(a) The priorities and allocations authorities of the President under Title I of the Defense Production Act with respect to all forms of energy have been delegated to the Secretary of Energy under E.O. 12919 of June 3, 1994 (59 FR 29525).
(b) The Department of Commerce has delegated authority to the Department of Energy to provide for extension of priority ratings for “industrial resources,” as provided in § 261.35 of this part, to support rated orders for all forms of energy.
§ 217.31 Priority ratings.
(a) Levels of priority.
(1) There are two levels of priority established by the Energy Priorities and Allocations System regulations, identified by the rating symbols “DO” and “DX”.
(2) All DO-rated orders have equal priority with each other and take precedence over unrated orders. All DX-rated orders have equal priority with each other and take precedence over DO-rated orders and unrated orders. (For resolution of conflicts among rated orders of equal priority, see § 217.34(c).)
(3) In addition, a Directive regarding priority treatment for a given item issued by the Department of Energy for that item takes precedence over any DX-rated order, DO-rated order, or unrated order, as stipulated in the Directive. (For a full discussion of Directives, see § 217.62.)
(b) Program identification symbols. Program identification symbols indicate which approved program is being supported by a rated order. The list of currently approved programs and their identification symbols are listed in Schedule 1, set forth as an appendix to 15 CFR part 700. For example, DO-F3 identifies a domestic energy construction program. Additional programs may be approved under the procedures of E.O. 12919 at any time. Program identification symbols do not connote any priority.
(c) Priority ratings. A priority rating consists of the rating symbol—DO or DX—and the program identification symbol, such as F1, F2, or F3. Thus, a contract for a domestic energy construction program will contain a DO-F3 or DX-F3 priority rating.
§ 217.32 Elements of a rated order.
Each rated order must include:
(a) The appropriate priority rating (e.g. DO-F1 or DX-F1)
(b) A required delivery date or dates. The words “immediately” or “as soon as possible” do not constitute a delivery date. A “requirements contract”, “basic ordering agreement”, “prime vendor contract”, or similar procurement document bearing a priority rating may contain no specific delivery date or dates and may provide for the furnishing of items or service from time to time or within a stated period against specific purchase orders, such as “calls”, “requisitions”, and “delivery orders”. These purchase orders must specify a required delivery date or dates and are to be considered as rated as of the date of their receipt by the supplier and not as of the date of the original procurement document;
(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of an individual authorized to sign rated orders for the person placing the order. The signature or use of the name certifies that the rated order is authorized under this part and that the requirements of this part are being followed; and
(d)(1) A statement that reads in substance:
This is a rated order certified for national defense use, and you are required to follow all the provisions of the Energy Priorities and Allocations System regulation at 10 CFR part 217.
(2) If the rated order is placed in support of emergency preparedness requirements and expedited action is necessary and appropriate to meet these requirements, the following sentences should be added following the statement set forth in paragraph (d)(1) of this section:
This rated order is placed for the purpose of emergency preparedness. It must be accepted or rejected within 2 days after receipt of the order if (1) The order is issued in response to a hazard that has occurred; or
(2) If the order is issued to prepare for an imminent hazard, as specified in EPAS Section 217.33(e), 10 CFR 217.33(e).
§ 217.33 Acceptance and rejection of rated orders.
(a) Mandatory acceptance. (1) Except as otherwise specified in this section, a person shall accept every rated order received and must fill such orders regardless of any other rated or unrated orders that have been accepted.
(2) A person shall not discriminate against rated orders in any manner such as by charging higher prices or by imposing different terms and conditions than for comparable unrated orders.
(b) Mandatory rejection. Unless otherwise directed by the Department of Energy for a rated order involving all forms of energy:
(1) A person shall not accept a rated order for delivery on a specific date if unable to fill the order by that date. However, the person must inform the customer of the earliest date on which delivery can be made and offer to accept the order on the basis of that date. Scheduling conflicts with previously accepted lower rated or unrated orders are not sufficient reason for rejection under this section.
(2) A person shall not accept a DO-rated order for delivery on a date which would interfere with delivery of any previously accepted DO- or DX-rated orders. However, the person must offer to accept the order based on the earliest delivery date otherwise possible.
(3) A person shall not accept a DX-rated order for delivery on a date which would interfere with delivery of any previously accepted DX-rated orders, but must offer to accept the order based on the earliest delivery date otherwise possible.
(4) If a person is unable to fill all of the rated orders of equal priority status received on the same day, the person must accept, based upon the earliest delivery dates, only those orders which can be filled, and reject the other orders. For example, a person must accept order A requiring delivery on December 15 before accepting order B requiring delivery on December 31. However, the person must offer to accept the rejected orders based on the earliest delivery dates otherwise possible.
(c) Optional rejection. Unless otherwise directed by the Department of Energy for a rated order involving all forms of energy, rated orders may be rejected in any of the following cases as long as a supplier does not discriminate among customers:
(1) If the person placing the order is unwilling or unable to meet regularly established terms of sale or payment;
(2) If the order is for an item not supplied or for a service not capable of being performed;
(3) If the order is for an item or service produced, acquired, or provided only for the supplier’s own use for which no orders have been filled for two years prior to the date of receipt of the rated order. If, however, a supplier has sold some of these items or provided similar services, the supplier is obligated to accept rated orders up to that quantity or portion of production or service, whichever is greater, sold or provided within the past two years;
(4) If the person placing the rated order, other than the U.S. Government, makes the item or performs the service being ordered;
(5) If acceptance of a rated order or performance against a rated order would violate any other regulation, official action, or order of the Department of Energy, issued under the authority of the Defense Production Act or another relevant statute.
(d) Customer notification requirements. (1) Except as provided in this paragraph, a person must accept or reject a rated order in writing or electronically within fifteen (15) working days after receipt of a DO rated order and within ten (10) working days after receipt of a DX rated order. If the order is rejected, the person must give reasons in writing or electronically for the rejection.
(2) If a person has accepted a rated order and subsequently finds that shipment or performance will be delayed, the person must notify the customer immediately, give the reasons for the delay, and advise of a new shipment or performance date. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days.
(e) Exception for emergency preparedness conditions. If the rated order is placed for the purpose of emergency preparedness, a person must accept or reject a rated order and transmit the acceptance or rejection in writing or in an electronic format within 2 days after receipt of the order if:
(1) The order is issued in response to a hazard that has occurred; or
(2) The order is issued to prepare for an imminent hazard.
§ 217.34 Preferential scheduling.
(a) A person must schedule operations, including the acquisition of all needed production items or services, in a timely manner to satisfy the delivery requirements of each rated order. Modifying production or delivery schedules is necessary only when required delivery dates for rated orders cannot otherwise be met.
(b) DO-rated orders must be given production preference over unrated orders, if necessary to meet required delivery dates, even if this requires the diversion of items being processed or ready for delivery or services being performed against unrated orders. Similarly, DX-rated orders must be given preference over DO-rated orders and unrated orders. (Examples: If a person receives a DO-rated order with a delivery date of June 3 and if meeting that date would mean delaying production or delivery of an item for an unrated order, the unrated order must be delayed. If a DX-rated order is received calling for delivery on July 15 and a person has a DO-rated order requiring delivery on June 2 and operations can be scheduled to meet both deliveries, there is no need to alter production schedules to give any additional preference to the DX-rated order.)
(c) Conflicting rated orders.
(1) If a person finds that delivery or performance against any accepted rated orders conflicts with the delivery or performance against other accepted rated orders of equal priority status, the person shall give precedence to the conflicting orders in the sequence in which they are to be delivered or performed (not to the receipt dates). If the conflicting orders are scheduled to be delivered or performed on the same day, the person shall give precedence to those orders that have the earliest receipt dates.
(2) If a person is unable to resolve rated order delivery or performance conflicts under this section, the person should promptly seek special priorities assistance as provided in §§ 217.40 through 217.44. If the person’s customer objects to the rescheduling of delivery or performance of a rated order, the customer should promptly seek special priorities assistance as provided in §§ 217.40 through 217.44. For any rated order against which delivery or performance will be delayed, the person must notify the customer as provided in § 217.33.
(d) If a person is unable to purchase needed production items in time to fill a rated order by its required delivery date, the person must fill the rated order by using inventoried production items. A person who uses inventoried items to fill a rated order may replace those items with the use of a rated order as provided in § 217.37(b).
§ 217.35 Extension of priority ratings.
(a) A person must use rated orders with suppliers to obtain items or services needed to fill a rated order. The person must use the priority rating indicated on the customer’s rated order, except as otherwise provided in this part or as directed by the Department of Energy. For example, if a person is in receipt of a DO-F1 rated order for an electric power sub-station, and needs to purchase a transformer for its manufacture, that person must use a DO-F1 rated order to obtain the needed transformer.
(b) The priority rating must be included on each successive order placed to obtain items or services needed to fill a customer’s rated order. This continues from contractor to subcontractor to supplier throughout the entire procurement chain.
§ 217.36 Changes or cancellations of priority ratings and rated orders.
(a) The priority rating on a rated order may be changed or canceled by:
(1) An official action of the Department of Energy; or
(2) Written notification from the person who placed the rated order.
(b) If an unrated order is amended so as to make it a rated order, or a DO rating is changed to a DX rating, the supplier must give the appropriate preferential treatment to the order as of the date the change is received by the supplier.
(c) An amendment to a rated order that significantly alters a supplier’s original production or delivery schedule shall constitute a new rated order as of the date of its receipt. The supplier must accept or reject the amended order according to the provisions of § 217.33.
(d) The following amendments do not constitute a new rated order: a change in shipping destination; a reduction in the total amount of the order; an increase in the total amount of the order which has negligible impact upon deliveries; a minor variation in size or design; or a change which is agreed upon between the supplier and the customer.
(e) If a person no longer needs items or services to fill a rated order, any rated orders placed with suppliers for the items or services, or the priority rating on those orders, must be canceled.
(f) When a priority rating is added to an unrated order, or is changed or canceled, all suppliers must be promptly notified in writing.
§ 217.37 Use of rated orders.
(a) A person must use rated orders to obtain:
(1) Items which will be physically incorporated into other items to fill rated orders, including that portion of such items normally consumed or converted into scrap or by-products in the course of processing;
(2) Containers or other packaging materials required to make delivery of the finished items against rated orders;
(3) Services, other than contracts of employment, needed to fill rated orders; and
(4) MRO needed to produce the finished items to fill rated orders.
(b) A person may use a rated order to replace inventoried items (including finished items) if such items were used to fill rated orders, as follows:
(1) The order must be placed within 90 days of the date of use of the inventory.
(2) A DO rating and the program identification symbol indicated on the customer’s rated order must be used on the order. A DX rating may not be used even if the inventory was used to fill a DX-rated order.
(3) If the priority ratings on rated orders from one customer or several customers contain different program identification symbols, the rated orders may be combined. In this case, the program identification symbol “H1” must be used (i.e., DO-H1).
(c) A person may combine DX- and DO-rated orders from one customer or several customers if the items or services covered by each level of priority are identified separately and clearly. If different program identification symbols are indicated on those rated orders of equal priority, the person must use the program identification symbol “H1” (i.e., DO-H1 or DX-H1).
(d) Combining rated and unrated orders.
(1) A person may combine rated and unrated order quantities on one purchase order provided that:
(i) The rated quantities are separately and clearly identified; and
(ii) The four elements of a rated order, as required by § 217.32, are included on the order with the statement required in § 217.32(d) modified to read in substance:
This purchase order contains rated order quantities certified for national defense use, and you are required to follow all applicable provisions of the Energy Priorities and Allocations System regulations at 10 CFR part 217 only as it pertains to the rated quantities.
(2) A supplier must accept or reject the rated portion of the purchase order as provided in § 217.33 and give preferential treatment only to the rated quantities as required by this part. This part may not be used to require preferential treatment for the unrated portion of the order.
(3) Any supplier who believes that rated and unrated orders are being combined in a manner contrary to the intent of this part or in a fashion that causes undue or exceptional hardship may submit a request for adjustment or exception under § 217.80.
(e) A person may place a rated order for the minimum commercially procurable quantity even if the quantity needed to fill a rated order is less than that minimum. However, a person must combine rated orders as provided in paragraph (c) of this section, if possible, to obtain minimum procurable quantities.
(f) A person is not required to place a priority rating on an order for less than $50,000, or one-half of the Simplified Acquisition Threshold (as established in the Federal Acquisition Regulation (FAR) (see FAR section 2.101) or in other authorized acquisition regulatory or management systems) whichever amount is greater, provided that delivery can be obtained in a timely fashion without the use of the priority rating.
§ 217.38 Limitations on placing rated orders.
(a) General limitations.
(1) A person may not place a DO- or DX-rated order unless entitled to do so under this part.
(2) Rated orders may not be used to obtain:
(i) Delivery on a date earlier than needed;
(ii) A greater quantity of the item or services than needed, except to obtain a minimum procurable quantity. Separate rated orders may not be placed solely for the purpose of obtaining minimum procurable quantities on each order;
(iii) Items or services in advance of the receipt of a rated order, except as specifically authorized by the Department of Energy (see § 217.41(c) for information on obtaining authorization for a priority rating in advance of a rated order);
(iv) Items that are not needed to fill a rated order, except as specifically authorized by the Department of Energy, or as otherwise permitted by this part; or
(v) Any of the following items unless specific priority rating authority has been obtained from the Department of Energy, a Delegate Agency, or the Department of Commerce, as appropriate:
(A) Items for plant improvement, expansion, or construction, unless they will be physically incorporated into a construction project covered by a rated order; and
(B) Production or construction equipment or items to be used for the manufacture of production equipment. [For information on requesting priority rating authority, see § 217.21.]
(vi) Any items related to the development of chemical or biological warfare capabilities or the production of chemical or biological weapons, unless such development or production has been authorized by the President or the Secretary of Defense.
(b) Jurisdictional limitations.
(1) Unless authorized by the resource agency with jurisdiction, the provisions of this part are not applicable to the following resources:
(i) Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer (Resource agency with jurisdiction—Department of Agriculture);
(ii) Health resources (Resource agency with jurisdiction—Department of Health and Human Services);
(iii) All forms of civil transportation (Resource agency with jurisdiction—Department of Transportation);
(iv) Water resources (Resource agency with jurisdiction—Department of Defense/U.S. Army Corps of Engineers); and
(v) Communications services (Resource agency with jurisdiction—National Communications System under E. O. 12472 of April 3, 1984).
Subpart D—Special Priorities Assistance
§ 217.40 General provisions.
(a) The EPAS is designed to be largely self-executing. However, from time-to-time production or delivery problems will arise. In this event, a person should immediately contact the Office of Electricity, for guidance or assistance (Contact the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93). If the problem(s) cannot otherwise be resolved, special priorities assistance should be sought from the Department of Energy through the Office of Electricity (Contact the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93). If the Department of Energy is unable to resolve the problem or to authorize the use of a priority rating and believes additional assistance is warranted, the Department of Energy may forward the request to another agency with resource jurisdiction, as appropriate, for action. Special priorities assistance is provided to alleviate problems that do arise.
(b) Special priorities assistance is available for any reason consistent with this part. Generally, special priorities assistance is provided to expedite deliveries, resolve delivery conflicts, place rated orders, locate suppliers, or to verify information supplied by customers and vendors. Special priorities assistance may also be used to request rating authority for items that are not normally eligible for priority treatment.
(c) A request for special priorities assistance or priority rating authority must be submitted on Form DOE F 544 (05-11) (OMB control number 1910-5159) to the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93. Form DOE F 544 (05-11) may be obtained from the Department of Energy or a Delegate Agency. A sample Form DOE F 544 (05-11) is attached at appendix I to this part.
(a) If a rated order is likely to be delayed because a person is unable to obtain items or services not normally rated under this part, the person may request the authority to use a priority rating in ordering the needed items or services.
(b) Rating authority for production or construction equipment.
(1) A request for priority rating authority for production or construction equipment must be submitted to the U.S. Department of Commerce on Form BIS-999.
(2) When the use of a priority rating is authorized for the procurement of production or construction equipment, a rated order may be used either to purchase or to lease such equipment. However, in the latter case, the equipment may be leased only from a person engaged in the business of leasing such equipment or from a person willing to lease rather than sell.
(c) Rating authority in advance of a rated prime contract. (1) In certain cases and upon specific request, the Department of Energy, in order to promote the national defense, may authorize or request the Department of Commerce to authorize, as appropriate, a person to place a priority rating on an order to a supplier in advance of the issuance of a rated prime contract. In these instances, the person requesting advance rating authority must obtain sponsorship of the request from the Department of Energy or the appropriate Delegate Agency. The person shall also assume any business risk associated with the placing of rated orders in the event the rated prime contract is not issued.
(2) The person must state the following in the request:
It is understood that the authorization of a priority rating in advance of our receiving a rated prime contract from the Department of Energy and our use of that priority rating with our suppliers in no way commits the Department of Energy, the Department of Commerce, or any other government agency to enter into a contract or order or to expend funds. Further, we understand that the Federal Government shall not be liable for any cancellation charges, termination costs, or other damages that may accrue if a rated prime contract is not eventually placed and, as a result, we must subsequently cancel orders placed with the use of the priority rating authorized as a result of this request.
(3) In reviewing requests for rating authority in advance of a rated prime contract, the Department of Energy or the Department of Commerce, as appropriate, will consider, among other things, the following criteria:
(i) The probability that the prime contract will be awarded;
(ii) The impact of the resulting rated orders on suppliers and on other authorized programs;
(iii) Whether the contractor is the sole source;
(iv) Whether the item being produced has a long lead time;
(v) The time period for which the rating is being requested.
(4) The Department of Energy or the Department of Commerce, as appropriate, may require periodic reports on the use of the rating authority granted under paragraph (c) of this section.
(5) If a rated prime contract is not issued, the person shall promptly notify all suppliers who have received rated orders pursuant to the advanced rating authority that the priority rating on those orders is cancelled.
§ 217.42 Examples of assistance.
(a) While special priorities assistance may be provided for any reason in support of this part, it is usually provided in situations where:
(1) A person is experiencing difficulty in obtaining delivery against a rated order by the required delivery date; or
(2) A person cannot locate a supplier for an item or service needed to fill a rated order.
(b) Other examples of special priorities assistance include:
(1) Ensuring that rated orders receive preferential treatment by suppliers;
(2) Resolving production or delivery conflicts between various rated orders;
(3) Assisting in placing rated orders with suppliers;
(4) Verifying the urgency of rated orders; and
(5) Determining the validity of rated orders.
§ 217.43 Criteria for assistance.
Requests for special priorities assistance should be timely, i.e., the request has been submitted promptly and enough time exists for the Department of Energy, the Delegate Agency, or the Department of Commerce for industrial resources to effect a meaningful resolution to the problem, and must establish that:
(a) There is an urgent need for the item; and
(b) The applicant has made a reasonable effort to resolve the problem.
§ 217.44 Instances where assistance may not be provided.
Special priorities assistance is provided at the discretion of the Department of Energy, the Delegate Agencies, or the Department of Commerce when it is determined that such assistance is warranted to meet the objectives of this part. Examples where assistance may not be provided include situations when a person is attempting to:
(a) Secure a price advantage;
(b) Obtain delivery prior to the time required to fill a rated order;
(c) Gain competitive advantage;
(d) Disrupt an industry apportionment program in a manner designed to provide a person with an unwarranted share of scarce items; or
(e) Overcome a supplier’s regularly established terms of sale or conditions of doing business.
Subpart E—Allocation Actions
§ 217.50 Policy.
(a) It is the policy of the Federal Government that the allocations authority under title I of the Defense Production Act may:
(1) Only be used when there is insufficient supply of a material, service, or facility to satisfy national defense supply requirements through the use of the priorities authority or when the use of the priorities authority would cause a severe and prolonged disruption in the supply of materials, services, or facilities available to support normal U.S. economic activities; and
(2) Not be used to ration materials or services at the retail level.
(b) Allocation orders, when used, will be distributed equitably among the suppliers of the materials, services, or facilities being allocated and not require any person to relinquish a disproportionate share of the civilian market.
§ 217.51 General procedures.
When the Department of Energy plans to execute its allocations authority to address a supply problem within its resource jurisdiction, the Department shall develop a plan that includes the following information:
(a) A copy of the written determination made, in accordance with section 202 of E.O. 12919, that the program or programs that would be supported by the allocation action are necessary or appropriate to promote the national defense;
(b) A detailed description of the situation to include any unusual events or circumstances that have created the requirement for an allocation action;
(c) A statement of the specific objective(s) of the allocation action;
(d) A list of the materials, services, or facilities to be allocated;
(e) A list of the sources of the materials, services, or facilities that will be subject to the allocation action;
(f) A detailed description of the provisions that will be included in the allocation orders, including the type(s) of allocation orders, the percentages or quantity of capacity or output to be allocated for each purpose, and the duration of the allocation action (i.e., anticipated start and end dates);
(g) An evaluation of the impact of the proposed allocation action on the civilian market; and
(h) Proposed actions, if any, to mitigate disruptions to civilian market operations.
§ 217.52 Controlling the general distribution of a material in the civilian market.
No allocation action by the Department of Energy may be used to control the general distribution of a material in the civilian market, unless the Secretary of the Department of Energy has:
(a) Made a written finding that:
(1) Such material is a scarce and critical material essential to the national defense, and
(2) The requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship;
(b) Submitted the finding for the President’s approval through the Assistant to the President for National Security Affairs; and
(c) The President has approved the finding.
§ 217.53 Types of allocation orders.
There are three types of allocation orders available for communicating allocation actions. These are:
(a) Set-aside: an official action that requires a person to reserve materials, services, or facilities capacity in anticipation of the receipt of rated orders;
(b) Directive: an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions. For example, a directive can require a person to: stop or reduce production of an item; prohibit the use of selected materials, services, or facilities; or divert the use of materials, services, or facilities from one purpose to another; and
(c) Allotment: an official action that specifies the maximum quantity of a material, service, or facility authorized for a specific use.
§ 217.54 Elements of an allocation order.
Each allocation order must include:
(a) A detailed description of the required allocation action(s);
(b) Specific start and end calendar dates for each required allocation action;
(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of the Secretary of Energy. The signature or use of the name certifies that the order is authorized under this part and that the requirements of this part are being followed;
(d) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the legal name of the person receiving the order] is required to comply with this order, in accordance with the provisions of the Energy Priorities and Allocations System regulation (10 CFR part 217), which is part of the Federal Priorities and Allocations System”; and
(e) A current copy of the Energy Priorities and Allocations System regulation (10 CFR part 217).
§ 217.55 Mandatory acceptance of an allocation order.
(a) Except as otherwise specified in this section, a person shall accept and comply with every allocation order received.
(b) A person shall not discriminate against an allocation order in any manner such as by charging higher prices for materials, services, or facilities covered by the order or by imposing terms and conditions for contracts and orders involving allocated materials, services, or facilities that differ from the person’s terms and conditions for contracts and orders for the materials, services, or facilities prior to receiving the allocation order.
(c) If a person is unable to comply fully with the required action(s) specified in an allocation order, the person must notify the Department of Energy immediately, explain the extent to which compliance is possible, and give the reasons why full compliance is not possible. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days. Such notification does not release the person from complying with the order to the fullest extent possible, until the person is notified by the Department of Energy that the order has been changed or cancelled.
§ 217.56 Changes or cancellations of an allocation order.
An allocation order may be changed or canceled by an official action of the Department of Energy.
Subpart F—Official Actions
§ 217.60 General provisions.
(a) The Department of Energy may take specific official actions to implement the provisions of this part.
(b) These official actions include Rating Authorizations, Directives, and Memoranda of Understanding.
§ 217.61 Rating Authorizations.
(a) A Rating Authorization is an official action granting specific priority rating authority that:
(1) Permits a person to place a priority rating on an order for an item or service not normally ratable under this part; or
(2) Authorizes a person to modify a priority rating on a specific order or series of contracts or orders.
(b) To request priority rating authority, see § 217.41.
§ 217.62 Directives.
(a) A Directive is an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions.
(b) A person must comply with each Directive issued. However, a person may not use or extend a Directive to obtain any items from a supplier, unless expressly authorized to do so in the Directive.
(c) A Priorities Directive takes precedence over all DX-rated orders, DO-rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the Directive.
(d) An Allocations Directive takes precedence over all Priorities Directives, DX-rated orders, DO-rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the Directive.
§ 217.63 Letters and Memoranda of Understanding.
(a) A Letter or Memorandum of Understanding is an official action that may be issued in resolving special priorities assistance cases to reflect an agreement reached by all parties (the Department of Energy, the Department of Commerce (if applicable), a Delegate Agency (if applicable), the supplier, and the customer).
(b) A Letter or Memorandum of Understanding is not used to alter scheduling between rated orders, to authorize the use of priority ratings, to impose restrictions under this part. Rather, Letters or Memoranda of Understanding are used to confirm production or shipping schedules that do not require modifications to other rated orders.
Subpart G—Compliance
§ 217.70 General provisions.
(a) The Department of Energy may take specific official actions for any reason necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or an official action. Such actions include Administrative Subpoenas, Demands for Information, and Inspection Authorizations.
(b) Any person who places or receives a rated order or an allocation order must comply with the provisions of this part.
(c) Willful violation of the provisions of title I or section 705 of the Defense Production Act and other applicable statutes, this part, or an official action of the Department of Energy is a criminal act, punishable as provided in the Defense Production Act and other applicable statutes, and as set forth in § 217.74 of this part.
§ 217.71 Audits and investigations.
(a) Audits and investigations are official examinations of books, records, documents, other writings and information to ensure that the provisions of the Defense Production Act and other applicable statutes, this part, and official actions have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this part.
(b) When undertaking an audit or investigation, the Department of Energy shall:
(1) Define the scope and purpose in the official action given to the person under investigation, and
(2) Have ascertained that the information sought or other adequate and authoritative data are not available from any Federal or other responsible agency.
(c) In administering this part, the Department of Energy may issue the following documents that constitute official actions:
(1) Administrative Subpoenas. An Administrative Subpoena requires a person to appear as a witness before an official designated by the Department of Energy to testify under oath on matters of which that person has knowledge relating to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or official actions. An Administrative Subpoena may also require the production of books, papers, records, documents and physical objects or property.
(2) Demands for Information. A Demand for Information requires a person to furnish to a duly authorized representative of the Department of Energy any information necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or official actions.
(3) Inspection Authorizations. An Inspection Authorization requires a person to permit a duly authorized representative of the Department of Energy to interview the person’s employees or agents, to inspect books, records, documents, other writings, and information, including electronically-stored information, in the person’s possession or control at the place where that person usually keeps them or otherwise, and to inspect a person’s property when such interviews and inspections are necessary or appropriate to the enforcement or the administration of the Defense Production Act and related statutes, this part, or official actions.
(d) The production of books, records, documents, other writings, and information will not be required at any place other than where they are usually kept if, prior to the return date specified in the Administrative Subpoena or Demand for Information, a duly authorized official of the Department of Energy is furnished with copies of such material that are certified under oath to be true copies. As an alternative, a person may enter into a stipulation with a duly authorized official of Department of Energy as to the content of the material.
(e) An Administrative Subpoena, Demand for Information, or Inspection Authorization, shall include the name, title, or official position of the person to be served, the evidence sought to be adduced, and its general relevance to the scope and purpose of the audit, investigation, or other inquiry. If employees or agents are to be interviewed; if books, records, documents, other writings, or information are to be produced; or if property is to be inspected; the Administrative Subpoena, Demand for Information, or Inspection Authorization will describe them with particularity.
(f) Service of documents shall be made in the following manner:
(1) Service of a Demand for Information or Inspection Authorization shall be made personally, or by Certified Mail-Return Receipt Requested at the person’s last known address. Service of an Administrative Subpoena shall be made personally. Personal service may also be made by leaving a copy of the document with someone at least 18 years old at the person’s last known dwelling or place of business.
(2) Service upon other than an individual may be made by serving a partner, corporate officer, or a managing or general agent authorized by appointment or by law to accept service of process. If an agent is served, a copy of the document shall be mailed to the person named in the document.
(3) Any individual 18 years of age or over may serve an Administrative Subpoena, Demand for Information, or Inspection Authorization. When personal service is made, the individual making the service shall prepare an affidavit as to the manner in which service was made and the identity of the person served, and return the affidavit, and in the case of subpoenas, the original document, to the issuing officer. In case of failure to make service, the reasons for the failure shall be stated on the original document.
§ 217.72 Compulsory process.
(a) If a person refuses to permit a duly authorized representative of the Department of Energy to have access to any premises or source of information necessary to the administration or the enforcement of the Defense Production Act and other applicable statutes, this part, or official actions, the Department of Energy representative may seek compulsory process. Compulsory process means the institution of appropriate legal action, including ex parte application for an inspection warrant or its equivalent, in any forum of appropriate jurisdiction.
(b) Compulsory process may be sought in advance of an audit, investigation, or other inquiry, if, in the judgment of the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93, there is reason to believe that a person will refuse to permit an audit, investigation, or other inquiry, or that other circumstances exist which make such process desirable or necessary.
§ 217.73 Notification of failure to comply.
(a) At the conclusion of an audit, investigation, or other inquiry, or at any other time, the Department of Energy may inform the person in writing where compliance with the requirements of the Defense Production Act and other applicable statutes, this part, or an official action were not met.
(b) In cases where the Department of Energy determines that failure to comply with the provisions of the Defense Production Act and other applicable statutes, this part, or an official action was inadvertent, the person may be informed in writing of the particulars involved and the corrective action to be taken. Failure to take corrective action may then be construed as a willful violation of the Defense Production Act and other applicable statutes, this part, or an official action.
§ 217.74 Violations, penalties, and remedies.
(a) Willful violation of the provisions of title I or sections 705 or 707 of the Defense Production Act, the priorities provisions of the Selective Service Act and related statutes (when applicable), this part, or an official action, is a crime and upon conviction, a person may be punished by fine or imprisonment, or both. The maximum penalties provided by the Defense Production Act are a $10,000 fine, or one year in prison, or both. The maximum penalties provided by the Selective Service Act and related statutes are a $50,000 fine, or three years in prison, or both.
(b) The Government may also seek an injunction from a court of appropriate jurisdiction to prohibit the continuance of any violation of, or to enforce compliance with, the Defense Production Act, this part, or an official action.
(c) In order to secure the effective enforcement of the Defense Production Act and other applicable statutes, this part, and official actions, the following are prohibited:
(1) No person may solicit, influence or permit another person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action.
(2) No person may conspire or act in concert with any other person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action.
(3) No person shall deliver any item if the person knows or has reason to believe that the item will be accepted, redelivered, held, or used in violation of the Defense Production Act and other applicable statutes, this part, or an official action. In such instances, the person must immediately notify the Department of Energy that, in accordance with this provision, delivery has not been made.
§ 217.75 Compliance conflicts.
If compliance with any provision of the Defense Production Act and other applicable statutes, this part, or an official action would prevent a person from filling a rated order or from complying with another provision of the Defense Production Act and other applicable statutes, this part, or an official action, the person must immediately notify the Department of Energy for resolution of the conflict.
Subpart H—Adjustments, Exceptions, and Appeals
§ 217.80 Adjustments or exceptions.
(a) A person may submit a request to the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93, for an adjustment or exception on the ground that:
(1) A provision of this part or an official action results in an undue or exceptional hardship on that person not suffered generally by others in similar situations and circumstances; or
(2) The consequences of following a provision of this part or an official action is contrary to the intent of the Defense Production Act and other applicable statutes, or this part.
(b) Each request for adjustment or exception must be in writing and contain a complete statement of all the facts and circumstances related to the provision of this part or official action from which adjustment is sought and a full and precise statement of the reasons why relief should be provided.
(c) The submission of a request for adjustment or exception shall not relieve any person from the obligation of complying with the provision of this part or official action in question while the request is being considered unless such interim relief is granted in writing by the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93.
(d) A decision of the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93, under this section may be appealed to the Assistant Secretary, Office of Electricity (For information on the appeal procedure, see § 217.81.)
§ 217.81 Appeals.
(a) Any person who has had a request for adjustment or exception denied by the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in section 217.93, under § 217.80, may appeal to the Assistant Secretary, Office of Electricity who shall review and reconsider the denial.
(b)(1) Except as provided in this paragraph (b)(2), an appeal must be received by the Assistant Secretary, Office of Electricity no later than 45 days after receipt of a written notice of denial from the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93. After this 45-day period, an appeal may be accepted at the discretion of the Assistant Secretary, Office of Electricity for good cause shown.
(2) For requests for adjustment or exception involving rated orders placed for the purpose of emergency preparedness (see 217.14(d)), an appeal must be received by the Assistant Secretary, Office of Electricity, no later than 15 days after receipt of a written notice of denial from the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93. Contract performance under the order shall not be stayed pending resolution of the appeal.
(c) Each appeal must be in writing and contain a complete statement of all the facts and circumstances related to the action appealed from and a full and precise statement of the reasons the decision should be modified or reversed.
(d) In addition to the written materials submitted in support of an appeal, an appellant may request, in writing, an opportunity for an informal hearing. This request may be granted or denied at the discretion of the Assistant Secretary, Office of Electricity.
(e) When a hearing is granted, the Assistant Secretary, Office of Electricity may designate an employee to conduct the hearing and to prepare a report. The hearing officer shall determine all procedural questions and impose such time or other limitations deemed reasonable. In the event that the hearing officer decides that a printed transcript is necessary, all expenses shall be borne by the appellant.
(f) When determining an appeal, the Assistant Secretary, Office of Electricity may consider all information submitted during the appeal as well as any recommendations, reports, or other relevant information and documents available to the Department of Energy or consult with any other persons or groups.
(g) The submission of an appeal under this section shall not relieve any person from the obligation of complying with the provision of this part or official action in question while the appeal is being considered unless such relief is granted in writing by the Assistant Secretary, Office of Electricity.
(h) The decision of the Assistant Secretary, Office of Electricity shall be made within five (5) days after receipt of the appeal, or within one (1) day for appeals pertaining to emergency preparedness and shall be the final administrative action. It shall be issued to the appellant in writing with a statement of the reasons for the decision.
Subpart I—Miscellaneous Provisions
§ 217.90 Protection against claims.
A person shall not be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any provision of this part, or an official action, notwithstanding that such provision or action shall subsequently be declared invalid by judicial or other competent authority.
§ 217.91 Records and reports.
(a) Persons are required to make and preserve for at least three years, accurate and complete records of any transaction covered by this part or an official action.
(b) Records must be maintained in sufficient detail to permit the determination, upon examination, of whether each transaction complies with the provisions of this part or any official action. However, this part does not specify any particular method or system to be used.
(c) Records required to be maintained by this part must be made available for examination on demand by duly authorized representatives of the Department of Energy as provided in § 217.71.
(d) In addition, persons must develop, maintain, and submit any other records and reports to the Department of Energy that may be required for the administration of the Defense Production Act and other applicable statutes, and this part.
(e) Section 705(d) of the Defense Production Act, as implemented by E.O. 12919, provides that information obtained under this section which the Secretary deems confidential, or with reference to which a request for confidential treatment is made by the person furnishing such information, shall not be published or disclosed unless the Secretary determines that the withholding of this information is contrary to the interest of the national defense. Information required to be submitted to the Department of Energy in connection with the enforcement or administration of the Defense Production Act, this part, or an official action, is deemed to be confidential under section 705(d) of the Defense Production Act and shall be handled in accordance with applicable Federal law.
§ 217.92 Applicability of this part and official actions.
(a) This part and all official actions, unless specifically stated otherwise, apply to transactions in any state, territory, or possession of the United States and the District of Columbia.
(b) This part and all official actions apply not only to deliveries to other persons but also include deliveries to affiliates and subsidiaries of a person and deliveries from one branch, division, or section of a single entity to another branch, division, or section under common ownership or control.
(c) This part and its schedules shall not be construed to affect any administrative actions taken by the Department of Energy, or any outstanding contracts or orders placed pursuant to any of the regulations, orders, schedules or delegations of authority previously issued by the Department of Energy pursuant to authority granted to the President in the Defense Production Act. Such actions, contracts, or orders shall continue in full force and effect under this part unless modified or terminated by proper authority.
§ 217.93 Communications.
All communications concerning this part, including requests for copies of the regulation and explanatory information, requests for guidance or clarification, and requests for adjustment or exception shall be addressed to the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585; (202) 586-1411 ([email protected]).
Appendix I to Part 217—Sample Form DOE F 544 (05-11)
PART 218—STANDBY MANDATORY INTERNATIONAL OIL ALLOCATION
Subpart A—General Provisions
§ 218.1 Purpose and scope.
(a) This part implements section 251 of the Energy Policy and Conservation Act (Pub. L. 94-163) (42 U.S.C. 6271), as amended, which authorizes the President to take such action as he determines to be necessary for performance of the obligations of the United States under chapters III and IV of the Agreement on an International Energy Program (TIAS 8278), insofar as such obligations relate to the mandatory international allocation of oil by International Energy Program participating countries.
(b) Applicability. This part applies to any firm engaged in producing, transporting, refining, distributing or storing oil which is subject to the jurisdiction of the United States.
§ 218.2 Activation/Deactivation.
(a) This rule shall take effect providing:
(1) The International Energy Program has been activated; and,
(2) The President has transmitted this rule to Congress, has found putting such rule into effect is required in order to fulfill obligations of the United States under the International Energy Program and has transmitted such a finding to the Congress together with a statement of the effective date and manner for exercise of such rule.
(b) This rule shall revert to standby status no later than 60 days after the deactivation of the emergency allocation system activated to implement the International Energy Program.
§ 218.3 Definitions.
DOE means the Department of Energy established by the Department of Energy Organization Act (Pub. L. 95-91), and includes the Secretary of Energy or his delegate.
EPCA means the Energy Policy and Conservation Act (Pub. L. 94-163), as amended.
Firm means any association, company, corporation, estate, individual, joint-venture, partnership, or sole proprietorship or any other entity however organized including charitable, educational, or other eleemosynary institutions, and the Federal Government including corporations, departments, Federal agencies, and other instrumentalities, and State and local governments. The ERA may, in regulations and forms issued in this part, treat as a firm: (a) A parent and the consolidated and unconsolidated entities (if any) which it directly or indirectly controls, (b) a parent and its consolidated entities, (c) an unconsolidated entity, or (d) any part of a firm.
IEA means the International Energy Agency established to implement the IEP.
IEP means the International Energy Program established pursuant to the Agreement on an International Energy Program signed at Paris, France, on November 18, 1974, including (a) the Annex entitled “Emergency Reserves”, (b) any amendment to such Agreement that includes another nation as a Party to such Agreement, and (c) any technical or clerical amendment to such Agreement.
International energy supply emergency means any period (a) beginning on any date that the President determines allocation of petroleum products to nations participating in the IEP is required by chapters III and IV of the IEP and (b) ending on a date on which he determines such allocation is no longer required.
Oil means crude oil, residual fuel oil, unfinished oil, refined petroleum product and natural gas liquids, which is owned or controlled by a firm, including any petroleum product destined, directly or indirectly, for import into the United States or any foreign country, or produced in the United States but excludes any oil stored in or owned and controlled by the United States Government in connection with the Strategic Petroleum Reserve authorized in section 151, et seq., of the Energy Policy and Conservation Act (Pub. L. 94-163).
Person means any individual, firm, estate, trust, sole proprietorship, partnership, association, company, joint-venture, corporation, governmental unit or instrumentality thereof, or a charitable, educational or other institution, and includes any officer, director, owner or duly authorized representative thereof.
Supply order means a written directive or a verbal communication of a written directive, if promptly confirmed in writing, issued by the DOE pursuant to subpart B of this part.
United States when used in the geographic sense means the several States, the District of Columbia, Puerto Rico, and the territories and possessions of the United States, and the outer continental shelf as defined in 43 U.S.C. 1331.
Subpart B—Supply Orders
§ 218.10 Rule.
(a) Upon the determination by the President that an international energy supply emergency exists, firms engaged in producing, transporting, refining, distributing, or storing oil shall take such actions as are determined by the DOE to be necessary for implementation of the obligations of the United States under chapters III and IV of the IEP that relate to the mandatory international allocation of oil by IEP participating countries.
(b) Any actions required in accordance with paragraph (a) of this section shall be stated in supply orders issued by DOE.
(c) No firm to which a supply order is issued shall be required to comply with such order unless the firm to which the oil is to be provided in accordance with such supply order has agreed to a procedure for the resolution of any dispute related to the terms and conditions of the sale undertaken pursuant to the supply order. The means for resolving any such disputes may include any procedures that are mutually acceptable to the parties, including arbitration before the IEA if the IEA has established arbitration procedures, arbitration or adjudication before an appropriate body, or any other similar procedure.
§ 218.11 Supply orders.
(a) A supply order shall require that the firm to which it is issued take actions specified therein relating to supplying the stated volume of oil to a specified recipient including, but not limited to, distributing, producing, storing, transporting or refining oil. A supply order shall include a concise statement of the pertinent facts and of the legal basis on which it is issued, and shall describe the action to be taken.
(b) The DOE shall serve a copy of the supply order on the firm directed to act as stated therein.
(c) The DOE may modify or rescind a supply order on its own motion or pursuant to an application filed in accordance with § 218.32 of this part.
(d) A supply order shall be effective in accordance with its terms, and when served upon a firm directed to act thereunder, except that a supply order shall not remain in effect (1) upon reversion of this rule to standby status or (2) twelve months after the rule has been transmitted to Congress (whichever occurs first) or (3) to the extent that DOE or a court of competent jurisdiction directs that it be stayed, modified, or rescinded.
(e) Any firm issued a supply order pursuant to this subpart may seek modification or rescission of the supply order in accordance with procedures provided in § 218.32 of this part.
§ 218.12 Pricing.
The price for oil subject to a supply order issued pursuant to this subpart shall be based on the price conditions prevailing for comparable commercial transactions at the time the supply order is served.
Subpart C [Reserved]
Subpart D—Procedures
§ 218.30 Purpose and scope.
This subpart establishes the administrative procedures applicable to supply orders. They shall be exclusive of any other procedures contained in this chapter, unless such other procedures are specifically made applicable hereto by this subpart.
§ 218.31 Incorporated procedures.
The following subparts of part 205 of this chapter are, as appropriate, hereby made applicable to this part:
(a) Subpart A— General Provisions; Provided, that § 205.11 shall not apply; and Provided further, that in addition to the methods of service specified in § 205.7 of this chapter, service shall be effective if a supply order is transmitted by telex, telecopies or other similar means of electronic transmission of a writing and received by the firm to which the supply order is addressed.
(b) Subpart F— Interpretation.
(c) Subpart K— Rulings.
(d) Subpart M— Conferences, Hearings and Public Hearings.
§ 218.32 Review.
(a) Purpose and scope. This subpart establishes the procedures for the filing of an application for review of a supply order. An application for review is a summary proceeding which will be initiated only if the criteria described in paragraph (g)(2) of this section are satisfied.
(b) What to file. (1) A firm filing under this subpart shall file an “Application for Review” which should be clearly labeled as such both on the application and on the outside of the envelope in which the application is transmitted, and shall be in writing and signed by the firm filing the application. The applicant shall comply with the general filing requirements stated in 10 CFR 205.9 in addition to the requirements stated in this section.
(2) If the applicant wishes to claim confidential treatment for any information contained in the application or other documents submitted under this subpart, the procedures set out in 10 CFR 205.9(f) shall apply.
(c) When to file. An application for review should be filed no later than 5 days after the receipt by the applicant of the supply order that is the subject of the application, or no later than 2 days after the occurrence of an event that results in a substantial change in the facts or circumstances affecting the applicant.
(d) Where to file. The application for review shall be filed with DOE Office of Hearings and Appeals (OHA), 2000 M Street, NW., Washington, DC 20461.
(e) Notice. The applicant shall send by United States mail or deliver by hand a copy of the application and any subsequent amendments or other documents relating to the application to the Administrator of the Economic Regulatory Administration of DOE, 2000 M Street, NW., Washington, DC 20461. Service shall be made on the ERA at same time the document is filed with OHA and each document filed with the OHA shall include certification that the applicant has complied with the requirements of this paragraph.
(f) Contents. (1) The application shall contain a full and complete statement of all relevant facts pertaining to the application and to the DOE action sought. Such facts shall include a complete statement of the business or other reasons that justify review of the supply order and a full description of the pertinent provisions and relevant facts contained in any relevant documents. Copies of all contracts, agreements, leases, instruments, and other documents relevant to the application shall be submitted with the application. A copy of the order of which review is sought shall be included with the application. When the application pertains to only one step of a larger integrated transaction, the facts, circumstances, and other relevant information pertaining to the entire transaction shall be submitted.
(2) The application shall include a discussion of all relevant authorities, including, but not limited to, DOE and DOE rulings, regulations, interpretations and decisions on appeal and exception relied upon to support the action sought therein.
(g) DOE evaluation—(1) Processing. (i) The DOE may initiate an investigation of any statement in an application and utilize in its evaluation any relevant facts obtained by such investigation. The DOE may solicit and accept submissions from third parties relevant to any application for review provided that the applicant is afforded an opportunity to respond to all third party submissions. In evaluating an application for review, the DOE may convene a conference, on its own initiative, if, in its discretion, it considers that a conference will advance its evaluation of the application.
(ii) If the DOE determines that there is insufficient information upon which to base a decision and if upon request the necessary additional information is not submitted, the DOE may dismiss the application without prejudice. If the failure to supply additional information is repeated or willful, the DOE may dismiss the application with prejudice. If the applicant fails to provide the notice required by paragraph (e) of this section, the DOE may dismiss the application without prejudice.
(iii) An order dismissing an application for any of the reasons specified in paragraph (g)(1)(ii) of this section shall contain a statement of the grounds for the dismissal. The order shall become final within 5 days of its service upon the applicant, unless within such 5-day period the applicant files an amendment correcting the deficiencies identified in the order. Within 5 days of the filing of such amendment, the DOE shall notify the applicant whether the amendment corrects the specified deficiencies. If the amendment does not correct the deficiencies specified in the order, the order shall become a final order of the DOE of which the applicant may seek judicial review.
(2) An application for review of an order shall be processed only if the applicant demonstrates that—
(i) There is probable cause to believe that the supply order is erroneous, inequitable, or unduly burdensome; or
(ii) There has been discovered a law, regulation, interpretation, ruling, order or decision that was in effect at the time of the application which, if it had been made known to the DOE, would have been relevant to the supply order and would have substantially altered the supply order; or
(iii) There has been a substantial change in the facts or circumstances affecting the applicant, which change has occurred during the interval between issuance of the supply order and the date of the application and was caused by forces or circumstances beyond the control of the applicant.
(h) Decision. (1) Upon consideration of the application and other relevant information received or obtained during the proceeding, the DOE shall issue an order granting or denying the modification or rescission of the supply order requested in the application for review.
(2) The DOE shall process applications for review as expeditiously as possible. When administratively feasible, the DOE shall issue an order granting or denying the application within 20 business days after receipt of the application.
(3) The order shall include a written statement setting forth the relevant facts and the legal basis of the order. The order shall state that it is a final order of which the applicant may seek judicial review.
(4) The DOE shall serve a copy of the order upon the applicant and any other party who participated in the proceeding.
§ 218.33 Stay.
(a) The DOE may issue an order granting a stay if the DOE determines that an applicant has made a compelling showing that it would incur serious and irreparable injury unless immediate stay relief is granted pending determination of an application for review pursuant to this subpart. An application for a stay shall be labeled as such on the application and on the outside of the envelope in which the application is transmitted, and shall be in writing and signed by the firm filing the application. It shall include a description of the proceeding incident to which the stay is being sought and of the facts and circumstances which support the applicant’s claim that it will incur irreparable injury unless immediate stay relief is granted. The applicant shall comply with the general filing requirements stated in 10 CFR 205.9 in addition to the requirements stated in this section. The DOE on its own initiative may also issue an order granting a stay upon a finding that a firm will incur irreparable injury if such an order is not granted.
(b) An order granting a stay shall expire by its terms within such time after issuance, not to exceed 30 days as the DOE specifies in the order, except that it shall expire automatically 5 days following its issuance if the applicant fails within that period to file an application for review unless within that period the DOE for good cause shown, extends the time during which the applicant may file an application for review.
(c) The order granting or denying a stay is not an order of the DOE subject to administrative review.
§ 218.34 Addresses.
All correspondence, petitions, and any information required by this part shall be submitted to: Administrator, Economic Regulatory Administration, Department of Energy, 2000 M Street, NW., Washington, DC 20461, and to the Director, Office of Hearings and Appeals, Department of Energy, 2000 M Street, NW., Washington, DC 20461.
Subpart E—Investigations, Violations, Sanctions and Judicial Actions
§ 218.40 Investigations.
(a) The DOE may initiate and conduct investigations relating to the scope, nature and extent of compliance by any person with the rules, regulations or statutes of the DOE or any order promulgated by the DOE under the authority of section 251 of EPCA, or any court decree.
(b) Any duly designated and authorized representative of DOE has the authority to conduct an investigation and to take such action as he deems necessary and appropriate to the conduct of the investigation including any action pursuant to § 205.8.
(c) There are no parties, as that term is used in adjudicative proceedings, in an investigation under this subpart, and no person may intervene or participate as a matter of right in any investigation under this subpart.
(d) Any person may request the DOE to initiate an investigation pursuant to paragraph (a) of this section. A request for an investigation shall set forth the subject matter to be investigated as fully as possible and include supporting documentation and information. No particular forms or procedures are required.
(e) Any person who is requested to furnish documentary evidence or testimony in an investigation, upon written request, shall be informed of the general purpose of the investigation.
(f) DOE shall not disclose information or documents that are obtained during any investigation unless (1) DOE directs or authorizes the public disclosure of the investigation; (2) the information or documents are a matter of public record; or (3) disclosure is not precluded by the Freedom of Information Act, 5 U.S.C. 552 and 10 CFR part 1004.
(g) During the course of an investigation any person may submit at any time any document, statement of facts or memorandum of law for the purpose of explaining the person’s position or furnish evidence which the person considers relevant to a matter under investigation.
(h) If facts disclosed by an investigation indicate that further action is unnecessary or unwarranted, the investigative file may be closed without prejudice to further investigation by the DOE at any time that circumstances so warrant.
§ 218.41 Violations.
Any practice that circumvents, contravenes or results in the circumvention or contravention of the requirements of any provision of this part 218 or any order issued pursuant thereto is a violation of the DOE regulations stated in this part and is unlawful.
§ 218.42 Sanctions.
(a) General. Any person who violates any provisions of this part 218 or any order issued pursuant thereto shall be subject to penalties and sanctions as provided herein.
(1) The provisions herein for penalties and sanctions shall be deemed cumulative and not mutually exclusive.
(2) Each day that a violation of the provisions of this part 218 or any order issued pursuant thereto continues shall be deemed to constitute a separate violation within the meaning of the provisions of this part relating to fines and civil penalties.
(b) Penalties. (1) Any person who violates any provision of this part or any order issued pursuant thereto shall be subject to a civil penalty of not more than $28,020 for each violation.
(2) Any person who willfully violates any provision of this part 218 or any order issued pursuant thereto shall be subject to a fine of not more than $10,000 for each violation.
(3) Any person who knowingly and willfully violates any provision of this part 218 or any order issued pursuant thereto with respect to the sale, offer of sale, or distribution in commerce of oil in commerce after having been subject to a sanction under paragraph (b)(1) or (2) of this section for a prior violation of the provisions of this part 218 or any order issued pursuant thereto with respect to the sale, offer of sale, or distribution in commerce of oil shall be subject to a fine of not more than $50,000 or imprisonment for not more than six months, or both, for each violation.
(4) Actions for penalties under this section are prosecuted by the Department of Justice upon referral by the DOE.
(5) When the DOE considers it to be appropriate or advisable, the DOE may compromise and settle any action under this paragraph, and collect civil penalties.
(c) Other Penalties. Willful concealment of material facts, or making of false, fictitious or fraudulent statements or representations, or submission of a document containing false, fictitious or fraudulent statements pertaining to matters within the scope of this part 218 by any person shall subject such persons to the criminal penalties provided in 18 U.S.C. 1001 (1970).
§ 218.43 Injunctions.
Whenever it appears to the DOE that any firm has engaged, is engaging, or is about to engage in any act or practice constituting a violation of any regulation or order issued under this part 218, the DOE may request the Attorney General to bring a civil action in the appropriate district court of the United States to enjoin such acts or practices and, upon a proper showing, a temporary restraining order or a preliminary or permanent injunction shall be granted without bond. The relief sought may include a mandatory injunction commanding any firm to comply with any provision of such order or regulation, the violation of which is prohibited by section 524 of the EPCA.
PART 220 [RESERVED]
PART 221—PRIORITY SUPPLY OF CRUDE OIL AND PETROLEUM PRODUCTS TO THE DEPARTMENT OF DEFENSE UNDER THE DEFENSE PRODUCTION ACT
Subpart A—General
§ 221.1 Scope.
This part sets forth the procedures to be utilized by the Economic Regulatory Administration of the Department of Energy and the Department of Defense whenever the priority supply of crude oil and petroleum products is necessary or appropriate to meet national defense needs. The procedures available in this part are intended to supplement but not to supplant other regulations of the ERA regarding the allocation of crude oil, residual fuel oil and refined petroleum products.
§ 221.2 Applicability.
This part applies to the mandatory supply of crude oil, refined petroleum products (including liquefied petroleum gases) and lubricants to the Department of Defense for its own use or for purchases made by the Department of Defense on behalf of other Federal Government agencies.
Subpart B—Exclusions
§ 221.11 Natural gas and ethane.
The supply of natural gas and ethane are excluded from this part.
Subpart C—Definitions
§ 221.21 Definitions.
For purposes of this part—
Directive means an official action taken by ERA which requires a named person to take an action in accordance with its provisions.
DOD means the Department of Defense, including Military Departments and Defense Agencies, acting through either the Secretary of Defense or the designee of the Secretary.
ERA means the Economic Regulatory Administration of the Department of Energy.
National defense means programs for military and atomic energy production or construction, military assistance to any foreign nation, stockpiling and space, or activities directly related to any of the above.
Person means any individual, corporation, partnership, association or any other organized group of persons, and includes any agency of the United States Government or any other government.
Priority-rated supply order means any delivery order for crude oil or petroleum products issued by DOD bearing a priority rating issued by ERA under this part.
Supplier means any person other than the DOD which supplies, sells, transfers, or otherwise furnishes (as by consignment) crude oil or petroleum product to any other person.
Subpart D—Administrative Procedures and Sanctions
§ 221.31 Requests by DOD.
(a) When DOD finds that (1) a fuel supply shortage for DOD exists or is anticipated which would have a substantial negative impact on the national defense, and (2) the defense activity for which fuel is required cannot be postponed until after the fuel supply shortage is likely to terminate, DOD may submit a written request to ERA for the issuance to it of a priority rating for the supply of crude oil and petroleum products.
(b) Not later than the transmittal date of its request to ERA, DOD shall notify the Federal Emergency Management Agency that it has requested a priority rating from ERA.
(c) Requests from DOD shall set forth the following:
(1) The quantity and quality of crude oil or petroleum products determined by DOD to be required to meet national defense requirements;
(2) The required delivery dates;
(3) The defense-related activity and the supply location for which the crude oil or petroleum product is to be delivered;
(4) The current or most recent suppliers of the crude oil or petroleum product and the reasons, if known, why the suppliers will not supply the requested crude oil or petroleum product;
(5) The degree to which it is feasible for DOD to use an alternate product in lieu of that requested and, if such an alternative product can be used, the efforts which have been made to obtain the alternate product;
(6) The period during which the shortage of crude oil or petroleum products is expected to exist;
(7) The proposed supply source for the additional crude oil or petroleum products required, which shall, if practicable, be the historical supplier of such crude oil or product to DOD; and
(8) Certification that DOD has made each of the findings required by paragraph (a) of this section.
§ 221.32 Evaluation of DOD request.
(a) Upon receipt of a request from DOD for a priority rating as provided in § 221.31, it shall be reviewed promptly by ERA. The ERA will assess the request in terms of:
(1) The information provided under § 221.31;
(2) Whether DOD’s national defense needs for crude oil or petroleum products can reasonably be satisfied without exercising the authority specified in this part;
(3) The capability of the proposed supplier to supply the crude oil or petroleum product in the amounts required;
(4) The known capabilities of alternative suppliers;
(5) The feasibility to DOD of converting to and using a product other than that requested; and
(6) Any other relevant information.
(b) The ERA promptly shall notify the proposed supplier of DOD’s request for a priority rating specified under this part. The proposed supplier shall have a period specified in the notice, not to exceed fifteen (15) days from the date it is notified of DOD’s request, to show cause in writing why it cannot supply the requested quantity and quality of crude oil or petroleum products. ERA shall consider this information in determining whether to issue the priority rating.
(c) If acceptance by a supplier of a rated order would create a conflict with another rated order of the supplier, it shall include all pertinent information regarding such conflict in its response to the show cause order provided for in subsection (b), and ERA, in consultation with DOD and the Federal Emergency Management Agency shall determine the priorities for meeting all such requirements.
(d) ERA may waive some or all of the requirements of § 221.31 or this section where the Secretary of Defense or his designee certifies, and has so notified the Federal Emergency Management Agency, that a fuel shortage for DOD exists or is imminent and that compliance with such requirements would have a substantial negative impact on the national defense.
§ 221.33 Order.
(a) Issuance. If ERA determines that issuance of a priority rating for a crude oil or refined petroleum product is necessary to provide the crude oil or petroleum products needed to meet the national defense requirement established by DOD, it shall issue such a rating to DOD for delivery of specified qualities and quantities of the crude oil or refined petroleum products on or during specified delivery dates or periods. In accordance with the terms of the order, DOD may then place such priority rating on a supply order.
(b) Compliance. Each person who receives a priority-rated supply order pursuant to this part shall supply the specified crude oil or petroleum products to DOD in accordance with the terms of that order.
(c) ERA directives. Notwithstanding any other provisions of this part, where necessary or appropriate to promote the national defense ERA is authorized to issue a directive to a supplier of crude oil or petroleum product requiring delivery of specified qualities and quantities of such crude oil or petroleum products to DOD at or during specified delivery dates or periods.
(d) Use of ratings by suppliers. No supplier who receives a priority-rated supply order or directive issued under the authority of this section may use such priority order or directive in order to obtain materials necessary to meet its supply obligations thereunder.
§ 221.34 Effect of order.
Defense against claims for damages. No person shall be liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any ERA authorized priority-rated supply order or ERA directive issued pursuant to this part, notwithstanding that such priority-rated supply order or directive thereafter be declared by judicial or other competent authority to be invalid.
§ 221.35 Contractual requirements.
(a) No supplier may discriminate against an order or contract on which a priority rating has been placed under this part by charging higher prices, by imposing terms and conditions for such orders or contracts different from other generally comparable orders or contracts, or by any other means.
(b) Contracts with priority ratings shall be subject to all applicable laws and regulations which govern the making of such contracts, including those specified in 10 CFR 211.26(e).
§ 221.36 Records and reports.
(a) Each person receiving an order or directive under this part shall keep for at least two years from the date of full compliance with such order or directive accurate and complete records of crude oil and petroleum product deliveries made in accordance with such order or directive.
(b) All records required to be maintained shall be made available upon request for inspection and audit by duly authorized representatives of the ERA.
§ 221.37 Violations and sanctions.
(a) Any practice that circumvents or contravenes the requirements of this part or any order or directive issued under this part is a violation of the regulations provided in this part.
(b) Criminal penalties. Any person who willfully performs any act prohibited, or willfully fails to perform any act required by this part or any order or directive issued under this part shall be subject to a fine of not more than $10,000 for each violation or imprisoned for not more than one year for each violation, or both.
(c) Whenever in the judgment of the Administrator of ERA any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of these regulations, the Administrator may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision.
SUBCHAPTER B—CLIMATE CHANGE
PART 300—VOLUNTARY GREENHOUSE GAS REPORTING PROGRAM: GENERAL GUIDELINES
§ 300.1 General.
(a) Purpose. The General Guidelines in this part and the Technical Guidelines incorporated by reference in § 300.13 govern the Voluntary Reporting of Greenhouse Gases Program authorized by section 1605(b) of the Energy Policy Act of 1992 (42 U.S.C. 13385(b)). The purpose of the guidelines is to establish the procedures and requirements for filing voluntary reports, and to encourage corporations, government agencies, non-profit organizations, households and other private and public entities to submit annual reports of their greenhouse gas emissions, emission reductions, and sequestration activities that are complete, reliable and consistent. Over time, it is anticipated that these reports will provide a reliable record of the contributions reporting entities have made toward reducing their greenhouse gas emissions.
(b) Reporting under the program. (1) Each reporting entity, whether or not it intends to register emissions as described in paragraph (c) of this section, must:
(i) File an entity statement that meets the appropriate requirements in § 300.5(d) through (f) of this part;
(ii) Use appropriate emission inventory and emission reduction calculation methods specified in the Technical Guidelines (incorporated by reference, see § 300.13), and calculate and report the weighted average quality rating of any emission inventories it reports;
(iii) Comply with the record keeping requirements in § 300.9 of this part; and
(iv) Comply with the certification requirements in § 300.10 of this part;
(2) Each reporting entity, whether or not it intends to register emissions as described in paragraph (c) of this section, may report offset reductions achieved by other entities outside their boundaries as long as such reductions are reported separately and calculated in accordance with methods specified in the Technical Guidelines. The third-party entity that achieved these reductions must agree to their being reported as offset reductions, and must also meet all of the requirements of reporting that would apply if the third-party entity reported directly under the 1605(b) program.
(3) An entity that intends to register emissions and emission reductions must meet the additional requirements referenced in paragraph (c) of this section.
(4) An entity that does not intend to register emissions and emission reductions may choose to report its emissions and/or emission reductions on an entity-wide basis or for selected elements of the entity, selected gases or selected sources.
(5) An entity that does not intend to register emissions may report emission inventories for any year back to 1990 and may report emission reductions for any year back to 1991, relative to a base period of one to four years, ending no earlier than 1990.
(c) Registration requirements. Entities that seek to register reductions must meet the additional requirements in this paragraph; although these requirements differ depending on whether the entity is a large or small emitter.
(1) To be eligible for registration, a reduction must have been achieved after 2002, unless the entity has committed under the Climate Leaders or Climate VISION programs to reduce its entity-wide emissions relative to a base period that ends earlier 2002, but no earlier than 2000.
(2) A large emitter must submit an entity-wide emission inventory that meets or exceeds the minimum quality requirements specified in § 300.6(b) and the Technical Guidelines (incorporated by reference, see § 300.13). Registered reductions of a large emitter must be based on an entity-wide assessment of net emission reductions, determined in accordance with § 300.8 and the Technical Guidelines.
(3) A small emitter must also submit an emission inventory that meets minimum quality requirements specified in § 300.6(b) and the Technical Guidelines (incorporated by reference, see § 300.13) and base its registered reductions on an assessment of annual changes in net emissions. A small emitter, however, may restrict its inventory and assessment to a single type of activity, such as forest management, building operations or agricultural tillage.
(4) Reporting entities may, under certain conditions, register reductions achieved by other entities:
(i) Reporting entities that have met the requirements for registering their own reductions may also register offset reductions achieved by other entities if:
(A) They have an agreement with the third-party entities to do so and these third-party entities have met all of the requirements for registration; or
(B) They were the result of qualified demand management or other programs and are calculated in accordance with the action-specific method identified in § 300.8(h)(5).
(ii) Small emitters that serve as an aggregator may register offset reductions achieved by non-reporting entities without reporting on their own emissions, as long as they have an agreement with the third-party entities to do so and these third-party entities have met all of the requirements for registration.
(d) Forms. Annual reports of greenhouse gas emissions, emission reductions, and sequestration must be made on forms or software made available by the Energy Information Administration of the Department of Energy (EIA).
(e) Status of reports under previous guidelines. EIA continues to maintain in its Voluntary Reporting of Greenhouse Gases database all reports received pursuant to DOE’s October 1994 guidelines. Those guidelines are available from EIA at http://www.eia.doe.gov/oiaf/1605/guidelns.html.
(f) Periodic review and updating of General and Technical Guidelines. DOE intends periodically to review the General Guidelines and the Technical Guidelines (incorporated by reference, see § 300.13) to determine whether any changes are warranted; DOE anticipates these reviews will occur approximately once every three years. These reviews will consider any new developments in climate science or policy, the participation rates of large and small emitters in the 1605(b) program, the general quality of the data submitted by different participants, and any changes to other emissions reporting protocols. Possible changes may include, but are not limited to:
(1) The addition of greenhouse gases that have been demonstrated to have significant, quantifiable climate forcing effects when released to the atmosphere in significant quantities;
(2) Changes to the minimum, quantity-weighted quality rating for emission inventories;
(3) Updates to emission inventory methods, emission factors and other provisions that are contained in industry protocols or standards. The review may also consider updates to any government-developed and consensus-based emission factors for which automatic updating is not provided in the Technical Guidelines;
(4) Modifications to the benchmarks or emission conversion factors used to calculate avoided and indirect emissions; and
(5) Changes in the minimum requirements for registered emission reductions.
§ 300.2 Definitions.
This section provides definitions for commonly used terms in this part.
Activity of a small emitter means, with respect to a small emitter, any single category of anthropogenic production, consumption or other action that releases emissions or results in sequestration, the annual changes of which can be assessed generally by using a single calculation method.
Aggregator means an entity that reports to the 1605(b) program on behalf of non-reporting entities. An aggregator may be a large or small emitter, such as a trade association, non-profit organization or public agency.
Anthropogenic means greenhouse gas emissions and removals that are a direct result of human activities or are the result of natural processes that have been affected by human activities.
Avoided emissions means the greenhouse gas emission reductions that occur outside the organizational boundary of the reporting entity as a direct consequence of changes in the entity’s activity, including but not necessarily limited to the emission reductions associated with increases in the generation and sale of electricity, steam, hot water or chilled water produced from energy sources that emit fewer greenhouse gases per unit than other competing sources of these forms of distributed energy.
Base period means a period of 1-4 years used to derive the average annual base emissions, emissions intensity or other values from which emission reductions are calculated.
Base value means the value from which emission reductions are calculated for an entity or subentity. The value may be annual emissions, emissions intensity, kilowatt-hours generated, or other value specified in the 1605(b) guidelines. It is usually derived from actual emissions and/or activity data derived from the base period.
Biogenic emissions mean emissions that are naturally occurring and are not significantly affected by human actions or activity.
Boundary means the actual or virtual line that encompasses all the emissions and carbon stocks that are to be quantified and reported in an entity’s greenhouse gas inventory, including de minimis emissions. Entities may use financial control or another classification method based on ownership or control as the means of determining which sources or carbon stocks fall within this organizational boundary.
Carbon dioxide equivalent means the amount of carbon dioxide by weight emitted into the atmosphere that would produce the same estimated radiative forcing as a given weight of another radiatively active gas. Carbon dioxide equivalents are computed by multiplying the weight of the gas being measured by its estimated global warming potential.
Carbon stocks mean the quantity of carbon stored in biological and physical systems including: trees, products of harvested trees, agricultural crops, plants, wood and paper products and other terrestrial biosphere sinks, soils, oceans, and sedimentary and geological sinks.
Climate Leaders means the EPA sponsored industry-government partnership that works with individual companies to develop long-term comprehensive climate change strategies. Certain Climate Leaders Partners have, working with EPA, set a corporate-wide greenhouse gas reduction goal and have inventoried their emissions to measure progress towards their goal.
Climate VISION means the public-private partnership initiated pursuant to a Presidential directive issued in 2002 that aims to contribute to the President’s goal of reducing greenhouse gas intensity through voluntary frameworks with industry. Climate VISION partners have signed an agreement with DOE to implement various climate-related actions to reduce greenhouse gas emissions.
De minimis emissions means emissions from one or more sources and of one or more greenhouse gases that, in aggregate, are less than or equal to 3 percent of the total annual carbon dioxide (CO
Department or DOE means the U.S. Department of Energy.
Direct emissions are emissions from sources within the organizational boundaries of an entity.
Distributed energy means electrical or thermal energy generated by an entity that is sold or otherwise exported outside of the entity’s boundaries for use by another entity.
EIA means the Energy Information Administration within the U.S. Department of Energy.
Emissions means the direct release of greenhouse gases to the atmosphere from any anthropogenic (human induced) source and certain indirect emissions (releases) specified in this part.
Emissions intensity means emissions per unit of output, where output is defined as the quantity of physical output, or a non-physical indicator of an entity’s or subentity’s productive activity.
Entity means the whole or part of any business, institution, organization, government agency or corporation, or household that:
(1) Is recognized under any U.S. Federal, State or local law that applies to it;
(2) Is located and operates, at least in part, in the United States; and
(3) The emissions of such operations are released, at least in part, in the United States.
First reduction year means the first year for which an entity intends to register emission reductions; it is the year that immediately follows the start year.
Fugitive emissions means uncontrolled releases to the atmosphere of greenhouse gases from the processing, transmission, and/or transportation of fossil fuels or other materials, such as HFC leaks from refrigeration, SF6 from electrical power distributors, and methane from solid waste landfills, among others, that are not emitted via an exhaust pipe(s) or stack(s).
Greenhouse gases means the gases that may be reported to the Department of Energy under this program. They are:
(1) Carbon dioxide (CO
(2) Methane (CH
(3) Nitrous oxide (N
(4) HydrofluorocarbonsHFC-23 [trifluoromethane-(CHF
(5) Perfluorocarbons (perfluoromethane-CF
(6) Sulfur hexafluoride (SF
(7) Chlorofluorocarbons (CFC-11 [trichlorofluoromethane-CCl
(8) Other gases or particles that have been demonstrated to have significant, quantifiable climate forcing effects when released to the atmosphere in significant quantities and for which DOE has established or approved methods for estimating emissions and reductions. (
Incidental lands are entity landholdings that are a minor component of an entity’s operations and are not actively managed for production of goods and services, including:
(1) Transmission, pipeline, or transportation right of ways that are not managed for timber production;
(2) Land surrounding commercial enterprises or facilities; and
(3) Land where carbon stock changes are determined by natural factors.
Indirect emissions means greenhouse gas emissions from stationary or mobile sources outside the organizational boundary that occur as a direct consequence of an entity’s activity, including but not necessarily limited to the emissions associated with the generation of electricity, steam and hot/chilled water used by the entity.
Large emitter means an entity whose annual emissions are more than 10,000 metric tons of CO
Net emission reductions means the sum of all annual changes in emissions, eligible avoided emissions and sequestration of the greenhouse gases specifically identified in § 300.6(i), and determined to be in conformance with §§ 300.7 and 300.8 of this part.
Offset means an emission reduction that is included in a 1605(b) report and meets the requirements of this part, but is achieved by an entity other than the reporting entity. Offset reductions must not be reported or registered by any other entity and must appear as a separate and distinct component of an entity’s report. Offsets are not integrated into the reporting entity’s emissions or net emission reductions.
Registration means the reporting of emission reductions that the EIA has determined meet the qualifications for registered emission reductions set forth in the guidelines.
Reporting entity means an entity that has submitted a report under the 1605(b) program that has been accepted by the Energy Information Administration.
Reporting year means the year that is the subject of a report to DOE.
Sequestration means the process by which CO
Simplified Emission Inventory Tool (SEIT) is a computer-based method, to be developed and made readily accessible by EIA, for translating common physical indicators into an estimate of greenhouse gas emissions.
Sink means an identifiable discrete location, set of locations, or area in which CO
Small emitter means an entity whose annual emissions are less than or equal to 10,000 metric tons of CO
Source means any land, facility, process, vehicle or activity that releases a greenhouse gas.
Start year means the year upon which the initial entity statement is based and the last year of the initial base period(s).
Subentity means a component of any entity, such as a discrete business line, facility, plant, vehicle fleet, or energy using system, which has associated with it emissions of greenhouse gases that can be distinguished from the emissions of all other components of the same entity and, when summed with the emissions of all other subentities, equal the entity’s total emissions.
Total emissions means the total annual contribution of the greenhouse gases (as defined in this section) to the atmosphere by an entity, including both direct and indirect entity-wide emissions.
United States or U.S. means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, American Samoa, and any other territory of the United States.
§ 300.3 Guidance for defining and naming the reporting entity.
(a) A reporting entity must be composed of one or more businesses, public or private institutions or organizations, households, or other entities having operations that annually release emissions, at least in part, in the United States. Entities may be defined by, as appropriate, a certificate of incorporation, corporate charter, corporate filings, tax identification number, or other legal basis of identification recognized under any Federal, State or local law or regulation. If a reporting entity is composed of more than one entity, all of the entities included must be responsible to the same management hierarchy and all entities that have the same management hierarchy must be included in the reporting entity.
(b) All reporting entities are strongly encouraged to define themselves at the highest level of aggregation. To achieve this objective, DOE suggests the use of a corporate-level definition of the entity, based on filings with the Securities and Exchange Commission or institutional charters. While reporting at the highest level of aggregation is encouraged, DOE recognizes that certain businesses and institutions may conclude that reporting at some lower level is desirable. Federal agencies are encouraged to report at the agency or departmental level, but distinct organizational units (such as a Department of the Interior Fish and Wildlife Service National Wildlife Refuge) may report directly if authorized by their department or agency. Once an entity has determined the level of corporate or institutional management at which it will report (e.g., the holding company, subsidiary, regulated stationary source, state government, agency, refuge, etc.), the entity must include all elements of the organization encompassed by that management level and exclude any organizations that are managed separately. For example, if two subsidiaries of a parent company are to be covered by a single report, then all subsidiaries of that parent company must also be included. Similarly, if a company decides to report on the U.S. and Canadian subsidiaries of its North American operations unit, it must also report on any other subsidiaries of its North American unit, such as a Mexican subsidiary.
(c) A name for the defined entity must be specified by all reporters. For entities that intend to register reductions, this should be the name commonly used to represent the activities being reported, as long as it is not also used to refer to substantial activities not covered by the entity’s reports. While DOE believes entities should be given considerable flexibility in defining themselves at an appropriate level of aggregation, it is essential that the name assigned to an entity that intends to register reductions corresponds closely to the scope of the operations and emissions covered by its report. If, for example, an individual plant or operating unit is reporting as an entity, it should be given a name that corresponds to the specific plant or unit, and not to the responsible subsidiary or corporate entity. In order to distinguish a parent company from its subsidiaries, the name of the parent company generally should not be incorporated into the name of the reporting subsidiary, but if it is, the name of the parent company usually should be secondary.
§ 300.4 Selecting organizational boundaries.
(a) Each reporting entity must disclose in its entity statement the approach used to establish its organizational boundaries, which should be consistent with the following guidelines:
(1) In general, entities should use financial control as the primary basis for determining their organizational boundaries, with financial control meaning the ability to direct the financial and operating policies of all elements of the entity with a view to gaining economic or other benefits from its activities over a period of many years. This approach should ensure that all sources, including those controlled by subsidiaries, that are wholly or largely owned by the entity are covered by its reports. Sources that are under long-term lease of the entity may, depending on the provisions of such leases, also be considered to be under the entity’s financial control. Sources that are temporarily leased or operated by an entity generally would not be considered to be under its financial control.
(2) Entities may establish organizational boundaries using approaches other than financial control, such as equity share or operational control, but must disclose how the use of these other approaches results in organizational boundaries that differ from those resulting from using the financial control approach.
(3) Emissions from facilities or vehicles that are partially-owned or leased may be included at the entity’s discretion, provided that the entity has taken reasonable steps to assure that doing so does not result in the double counting of emissions, sequestration or emission reductions. Emissions reductions or sequestration associated with land, facilities or other sources not owned or leased by an entity may not be included in the entity’s reports under the program unless the entity has long-term control over the emissions or sequestration of the source and the owner of the source has agreed that the emissions or sequestration may be included in the entity’s report.
(4) If the scope of a defined entity extends beyond the United States, the reporting entity should use the same approach to determining its organizational boundaries in the U.S. and outside the U.S.
(b) Each reporting entity must keep separate reports on emissions or emission reductions that occur within its defined boundaries and those that occur outside its defined boundaries. Entities must also keep separate reports on emissions and emission reductions that occur outside the United States and those that occur within the United States.
(c) An entity that intends to register its entity-wide emissions reductions must document and maintain its organizational boundary for accounting and reporting purposes.
§ 300.5 Submission of an entity statement.
(a) Determining the type of reporting entity. The entity statement requirements vary by type of reporting entity. For the purposes of these guidelines, there are three types of entities:
(1) Large emitters that intend to register emission reductions;
(2) Small emitters that intend to register emission reductions; and
(3) Emitters that intend to report, but not register emission reductions.
(b) Choosing a start year. The first entity statement describes the make-up, operations and boundaries of the entity, as they existed in the start year.
(1) For all entities, it is the year immediately preceding the first year for which the entity intends to register emission reductions and the last year of the initial base period(s).
(2) For entities intending to register emission reductions, the start year may be no earlier than 2002, unless the entity has made a commitment to reduce its entity-wide emissions under the Climate Leaders or Climate VISION program. An entity that has made such a commitment may establish a start year derived from the base period of the commitment, as long as it is no earlier than 2000.
(i) For a large emitter, the start year is the first year for which the entity submits a complete emissions inventory under the 1605(b) program.
(ii) The entity’s emissions in its start year or its average annual emissions over a period of up to four years ending in the start year determine whether it qualifies to begin reporting as a small emitter.
(3) For entities not intending to register reductions, the start year may be no earlier than 1990.
(c) Determining and maintaining large or small emitter reporting status. (1) Any entity that intends to register emission reductions can choose to participate as a large emitter, but only an entity that has demonstrated that its annual emissions are less than or equal to 10,000 metric tons of CO
(2) An entity must estimate its total emissions using methods specified in Chapter 1 of the Technical Guidelines (incorporated by reference, see § 300.13) or by using the Simplified Emission Inventory Tool (SEIT) provided by EIA and also discussed in Chapter 1. The results of this estimate must be reported to EIA. [
(3) After starting to report, each small emitter must annually certify that the emissions-related operations and boundaries of the entity have not changed significantly since the previous report. A new estimate of total emissions must be submitted after any significant increase in emissions, any change in the operations or boundaries of the small emitter, or every five years, whichever occurs first. Small emitters with estimated annual emissions of over 9,000 metric tons of CO
(d) Entity statements for large emitters intending to register reductions. When a large emitter intending to register emission reductions first reports under these guidelines, it must provide the following information in its entity statement:
(1) The name to be used to identify the participating entity;
(2) The legal basis of the named entity;
(3) The criteria used to determine:
(i) The organizational boundaries of the entity, if other than financial control; and
(ii) The sources of emissions included or excluded from the entity’s reports, such as sources excluded as de minimis emissions;
(4) The names of any parent or holding companies the activities of which will not be covered comprehensively by the entity’s reports;
(5) The names of any large subsidiaries or organizational units covered comprehensively by the entity’s reports. All subsidiaries of the entity must be covered by the entity’s reports, but only large subsidiaries must be specifically identified in the entity statement;
(6) A list of each country where operations occur, if the entity is including any non-U.S. operations in its report;
(7) A description of the entity and its primary U.S. economic activities, such as electricity generation, product manufacturing, service provider or freight transport; for each country listed under paragraph (d)(6) of this section, the large emitter should describe the economic activity in that country.
(8) A description of the types of emission sources or sinks to be covered in the entity’s emission inventories, such as fossil fuel power plants, manufacturing facilities, commercial office buildings or heavy-duty vehicles;
(9) The names of other entities that substantially share the ownership or operational control of sources that represent a significant part of the reporting entity’s emission inventories, and a certification that, to the best of the certifier’s knowledge, the direct greenhouse gas emissions and sequestration in the entity’s report are not included in reports filed by any of these other entities to the 1605(b) program; and
(10) Identification of the start year.
(e) Entity statements for small emitters intending to register reductions. When a small emitter intending to register emission reductions first reports under these guidelines, it must provide the following information in its entity statement:
(1) The name to be used to identify the participating entity;
(2) The legal basis of the named entity;
(3) An identification of the entity’s control over the activities covered by the entity’s reports, if other than financial control;
(4) The names of any parent or holding companies the activities of which will not be covered comprehensively by the entity’s reports;
(5) An identification or description of the primary economic activities of the entity, such as agricultural production, forest management or household operation; if any of the economic activities covered by the entity’s reports occur outside the U.S., a listing of each country in which such activities occur;
(6) An identification or description of the specific activity (or activities) and the emissions, avoided emissions or sequestration covered by the entity’s report, such as landfill gas recovery or forest sequestration;
(7) A certification that, to the best of the certifier’s knowledge, the direct greenhouse gas emissions and sequestration in the entity’s report are not included in reports filed by any other entities reporting to the 1605(b) program; and
(8) Identification of the start year.
(f) Entity statements for reporting entities not registering reductions. When a participant not intending to register emission reductions first reports under this part, it must, at a minimum, provide the following information in its entity statement:
(1) The name to be used to identify the reporting entity;
(2) The legal basis of the entity;
(3) An identification of the entity’s control over the activities covered by the entity’s reports, if other than financial control;
(4) A description of the entity and its primary economic activities, such as electricity generation, product manufacturing, service provider, freight transport, agricultural production, forest management or household operation; if any of the economic activities covered by the entity’s reports occur outside the United States, a listing of each country in which such activities occur; and
(5) A description of the types of emission sources or sinks, such as fossil fuel power plants, manufacturing facilities, commercial office buildings or heavy-duty vehicles, covered in the entity’s reports of emissions or emission reductions.
(g) Changing entity statements. (1) Reporting entities are required to annually review and, if necessary, update their entity statements.
(2) From time to time, a reporting entity may choose to change the scope of activities included within the entity’s reports or the level at which the entity wishes to report. A reporting entity may also choose to change its organizational boundaries, its base period, or other elements of its entity statement. For example, companies buy and sell business units, or equity share arrangements may change. In general, DOE encourages changes in the scope of reporting that expand the coverage of an entity’s report and discourages changes that reduce the coverage of such reports unless they are caused by divestitures or plant closures. Any such changes should be reported in amendments to the entity statement, and major changes may warrant or require changes in the base values used to calculate emission reductions and, in some cases, the entity’s base periods. Changes in the scope of reporting made on or before May 31 of a given calendar year must be reflected in the report submitted covering emissions and reductions for the following calendar year. Reporting entities may choose to postpone incorporating changes in the scope of reporting made after May 31 until submitting the report covering emissions and reductions for the year after the following calendar year. However, in no case should there be an interruption in the annual reports of entities registering emission reductions. Chapter 2 of the Technical Guidelines (incorporated by reference, see § 300.13) provides more specific guidance on how such changes should be reflected in entity statements, reports, and emission reduction calculations.
(h) Documenting changes in amended entity statements. A reporting entity’s entity statement in subsequent reports should focus primarily on changes since the previous report. Specifically, the subsequent entity statement should report the following information:
(1) For significant changes in the reporting entity’s scope or organizational boundaries, the entity should document:
(i) The acquisition or divestiture of discrete business units, subsidiaries, facilities, and plants;
(ii) The closure or opening of significant facilities;
(iii) The transfer of economic activity to or from specific subentities covered by the entity’s reports, such as the transfer of operations to non-U.S. subsidiaries;
(iv) Significant changes in land holdings (applies to entities reporting on greenhouse gas emissions or sequestration related to land use, land use change, or forestry);
(v) Whether the reporting entity is reporting at a higher level of aggregation than it did in the previous report, and if so, a listing of the subsidiary entities that are now aggregated under a revised conglomerated entity, including a listing of any non-U.S. operations to be added and the specific countries in which these operations are located; and
(vi) Changes in its activities or operations (e.g., changes in output, contractual arrangements, equipment and processes, outsourcing or insourcing of significant activities) that are likely to have a significant effect on emissions, together with an explanation of how it believes the changes in economic activity influenced its reported emissions or sequestrations.
§ 300.6 Emissions inventories.
(a) General. The objective of an emission inventory is to provide a full accounting of an entity’s emissions for a particular year, including direct emissions of the first six categories of gases listed in the definition of “greenhouse gases” in § 300.2, indirect emissions specified in paragraph (e) of this section, and all sequestration or other changes in carbon stocks. An emission inventory must be prepared in accordance with Chapter 1 of the Technical Guidelines (incorporated by reference, see § 300.13). An inventory does not include avoided emissions or any offset reductions, and is not subsequently adjusted to reflect future acquisitions, divestitures or other changes to the reporting entity (although a reporting entity often makes these types of adjustments when calculating emission reductions under the guidelines). Entity-wide inventories are a prerequisite for the registration of emission reductions by entities with average annual emissions of more than 10,000 metric tons of CO
(b) Quality requirements for emission inventories. The Technical Guidelines (incorporated by reference, see § 300.13) usually identify more than one acceptable method of measuring or estimating greenhouse gas emissions. Each acceptable method is rated A, B, C or D, with A methods usually corresponding to the highest quality method available and D methods representing the lowest quality method that may be used. Each letter is assigned a numerical rating reflecting its relative quality, 4 for A methods, 3 for B methods, 2 for C methods and 1 for D methods. Entities that intend to register emission reductions must use emission inventory methods that result in a quantity-weighted average quality rating of at least 3.0.
(1) Entities may at any time choose to modify the measurement or estimation methods that they use for their current or future year emission inventories. Such modifications would enable entities to gradually improve the quality of the ratings over time, but prior year inventories may be modified only to correct significant errors.
(2) Entities that have had their emission quantities and the quantity-weighted quality rating of their emissions inventory independently verified may report their emissions and average quality ratings by greenhouse gas, indirect emissions and sequestration, rather than by source or sink category.
(3) Entities that certify that they have used only A or B methods, may forego indicating in their reports the quality ratings of the methods used and may forego calculating the quantity-weighted average quality of their emission inventories.
(c) Using estimation methods not included in the Technical Guidelines. An entity may obtain DOE approval for the use of an estimation method not included in the Technical Guidelines (incorporated by reference, see § 300.13) if the method covers sources not described in the Technical Guidelines, or if the method provides more accurate results for the entity’s specific circumstances than the methods described in the Technical Guidelines. If an entity wishes to propose the use of a method that is not described in the Technical Guidelines, the entity must provide a written description of the method, an explanation of how the method is implemented (including data requirements), empirical evidence of the method’s validity and accuracy, and a suggested rating for the method to DOE’s Office of Policy and International Affairs (with a copy to EIA). DOE reserves the right to deny the request, or to assign its own rating to the method. By submitting this information, the entity grants permission to DOE to incorporate the method in a future revision of the Technical Guidelines.
(d) Direct emissions inventories. Direct greenhouse gas emissions that must be reported are the emissions resulting from stationary or mobile sources within the organizational boundaries of an entity, including but not limited to emissions resulting from combustion of fossil fuels, process emissions, and fugitive emissions. Process emissions (e.g., PFC emissions from aluminum production) must be reported along with fugitive emissions (e.g., leakage of greenhouse gases from equipment).
(e) Inventories of indirect emissions associated with purchased energy. (1) To provide a clear incentive for the users of electricity and other forms of purchased energy to reduce demand, an entity must include the indirect emissions from the consumption of purchased electricity, steam, and hot or chilled water in the entity’s inventory as indirect emissions. To avoid double counting among entities, the entity must report all indirect emissions separately from its direct emissions. Entities should use the methods for quantifying indirect emissions specified in the Technical Guidelines (incorporated by reference, see § 300.13).
(2) Entities may choose to report other forms of indirect emissions, such as emissions associated with employee commuting, materials consumed or products produced, although such other indirect emissions may not be included in the entity’s emission inventory and may not be the basis for registered emission reductions. All such reports of other forms of indirect emissions must be distinct from reports of indirect emissions associated with purchased energy and must be based on emission measurement or estimation methods identified in the Technical Guidelines (incorporated by reference, see § 300.13) or approved by DOE.
(f) Entity-level inventories of changes in terrestrial carbon stocks. Annual changes in managed terrestrial carbon stocks should be comprehensively assessed and reported across the entity, and the net emissions resulting from such changes included in the entity’s emissions inventory. Entities should use the methods for estimating changes in managed terrestrial carbon stocks specified in the Technical Guidelines (incorporated by reference, see § 300.13).
(g) Treatment of de minimis emissions and sequestration. (1) Although the goal of the entity-wide reporting requirement is to provide an accurate and comprehensive estimate of total emissions, there may be small emissions from certain sources that are unduly costly or otherwise difficult to measure or reliably estimate annually. An entity may exclude particular sources of emissions or sequestration if the total quantities excluded represent less than or equal to 3 percent of the total annual CO
(2) After starting to report, each reporting entity that excludes from its annual reports any de minimis emissions must re-estimate the quantity of excluded emissions after any significant increase in such emissions, or every five years, whichever occurs sooner.
(h) Separate reporting of domestic and international emissions. Non-U.S. emissions included in an entity’s emission inventory must be separately reported and clearly distinguished from emissions originating in the U.S. Entities must identify any country-specific factors used in the preparation of such reports.
(i) Covered gases. Entity-wide emissions inventories must include the emissions of the first six categories of named gases listed in the definition of “greenhouse gases” in § 300.2. Entities may report chlorofluorocarbons and other greenhouse gases with quantifiable climate forcing effects as long as DOE has established a method for doing so, but such gases must be reported separately and emission reductions, if any, associated with such other gases are not eligible for registration.
(j) Units for reporting. Emissions and sequestration should be reported in terms of the mass (not volume) of each gas, using metric units (e.g., metric tons of methane). Entity-wide and subentity summations of emissions and reductions from multiple sources must be converted into CO
§ 300.7 Net emission reductions.
(a) Entities that intend to register emission reductions achieved must comply with the requirements of this section. Entities may voluntarily follow these procedures if they want to demonstrate the achievement of net, entity-wide reductions for years prior to the earliest year permitted for registration. Only large emitters must follow the requirements of paragraph (b) of this section, but small emitters may do so voluntarily. Only entities that qualify as small emitters may use the special procedures in paragraph (c) of this section. Entities seeking to register emission reductions achieved by other entities (offsets) must certify that these emission reductions were calculated in a manner consistent with the requirements of paragraph (d) of this section and use the emission reduction calculation methods identified in § 300.8. All entities seeking to register emission reductions must comply with the requirements of paragraph (e) of this section. Only reductions in the emissions of the first six categories of gases listed in the definition of “greenhouse gases” in § 300.2 are eligible for registration.
(b) Assessing net emission reductions for large emitters. (1) Entity-wide reporting is a prerequisite for registering emission reductions by entities with average annual emissions of more than 10,000 metric tons of CO
(2) If it is not practicable to assess the changes in net emissions resulting from certain entity activities using at least one of the methods described in § 300.8 of this part, the entity may exclude them from its estimate of net emission reductions. The entity must identify as one or more distinct subentities the sources of emissions excluded for this reason and describe the reasons why it was not practicable to assess the changes that had occurred. DOE believes that few emission sources will be excluded for this reason, but has identified at least two situations where such an exclusion would be warranted. For example, it is likely to be impossible to assess the emission changes associated with a new manufacturing plant that produces a product for which the entity has no historical record of emissions or emissions intensity (emissions per unit of product output). However, once the new plant has been operational for at least a full year, a base period and base value(s) for the new plant could be established and its emission changes assessed in the following year. Until the emission changes of this new subentity can be assessed, it should be identified in the entity’s report as a subentity for which no assessment of emission changes is practicable. The other example involves a subentity that has reduced its output below the levels of its base period. In such a case, the subentity could not use the absolute emissions method and may also be unable to identify an effective intensity metric or other method.
(3) In calculating its net annual emission reductions, an entity should exclude any emissions or sequestration that have been excluded from the entity’s inventory. The entity should also exclude all de minimis and biogenic emissions that are excluded from the entity’s inventory of greenhouse gas emissions from its assessments of emission changes.
(c) Assessing emission reductions for entities with small emissions. (1) Entities with average annual emissions of less than or equal to 10,000 metric tons of CO
(i) Perform a complete assessment of the annual emissions and sequestration associated with each of the activities upon which they report, using methods that meet the same quality requirements applicable to entity-wide emission inventories; and
(ii) Determine the changes in the emissions, eligible avoided emissions or sequestration associated with each of these activities.
(2) An entity reporting as a small emitter must report on one or more specific activities and is encouraged, but not required to report on all activities occurring within the entity boundary. Examples of small emitter activities include: vehicle operations; product manufacturing processes; building operations or a distinct part thereof, such as lighting; livestock operations; crop management; and power generation. For example, a farmer managing several woodlots and also producing a wheat crop may report emission reductions associated with managing an individual woodlot. However, the farmer must also assess and report the net sequestration resulting from managing all the woodlots within the entity’s boundary. The small emitter is not required to report on emissions or reductions associated with growing the wheat crop.
(3) A small emitter must certify that the reductions reported were not caused by actions likely to cause increases in emissions elsewhere within the entity’s operations. This certification should be based on an assessment of the likely direct and indirect effects of the actions taken to reduce greenhouse gas emissions.
(d) Net emission reductions achieved by other entities (offset reductions or emission reductions submitted by aggregators). A reporting entity or aggregator under certain conditions may report or register all or some of the net emission reductions achieved by entities that choose not to report under the section 1605(b) program. In all cases, an agreement must exist between the reporting entity or aggregator and the other entity that specifies the quantity of the emission reductions (or increases) achieved by the other entity that may be reported or registered as an offset reduction by the reporting entity or aggregator. A large emitter that is reporting on behalf of other entities must meet all of the requirements applicable to large emitters, including submission of an entity statement, an emissions inventory, and an entity-wide assessment of emission reductions. If an aggregator is a small emitter, it may choose to report only on the activities, emissions and emission reductions of the entities on behalf of which it is reporting and not to report on any of its own activities or emission reductions. The reporting entity or aggregator must include in its report all of the information on the other entity, including an entity statement, an emissions inventory (when required), and an assessment of emission reductions that would be required if the other entity were directly reporting to EIA. The net emissions reductions (or increases) of each other entity will be evaluated separately by EIA to determine whether they are eligible for registration in accordance with the guidelines of this part. Those registered reductions (or increases) assigned by the other entity, by agreement, to a reporting entity or aggregator will be included in EIA’s summary of all registered offset reductions for that entity or aggregator. If the agreement between the reporting entity and other entity is discontinued, for any reason, the reporting entity must inform EIA and must identify any emission reductions previously reported that could be attributable to an increase in the carbon stocks of the other entity. Such reductions will be removed by EIA from the records of the reporting entity’s offset reductions.
(e) Net emission reductions to be reported by other entities as offset reductions. Entities must identify in their report the quantity of any net emission reductions covered by the report, if any, that another entity will report as an offset reduction, including the name of the other entity;
(f) Adjusting for year-to-year increases in net emissions. (1) Normally, net annual emission reductions for an entity are calculated by summing the net annual changes in emissions, eligible avoided emissions and sequestration, as determined using the calculation methods identified in § 300.8 and according to the procedures described in paragraph (b) of this section for large emitters, paragraph (c) for small emitters of this section for small emitters, and paragraph (d) of this section for offsets. However, if the entity experienced a net increase in emissions for one or more years, these increases must be reported and taken into account in calculating any future year reductions. If the entity subsequently achieves net annual emission reductions, the net increases experienced in the preceding year(s) must be more than offset by these reductions before the entity can once again register emission reductions. For example, if an entity achieved a net emission reduction of 5,000 metric tons of CO
(2) [Reserved]
§ 300.8 Calculating emission reductions.
(a) Choosing appropriate emission reduction calculation methods. (1) An entity must choose the method or methods it will use to calculate emission reductions from the list provided in paragraph (h) of this section. Each of the calculation methods has special characteristics that make it applicable to only certain types of emissions and activities. An entity should select the appropriate calculation method based on several factors, including:
(i) How the entity’s subentities are defined;
(ii) How the reporter will gather and report emissions data; and
(iii) The availability of other types of data that might be needed, such as production or output data.
(2) For some entities, a single calculation method will be sufficient, but many entities may need to apply more than one method because discrete components of the entity require different calculation methods. In such a case, the entity will need to select a method for each subentity (or discrete component of the entity with identifiable emission or reductions). The emissions and output measure (generally a physical measure) of each subentity must be clearly distinguished and reported separately. Guidance on the selection and specification of calculation methods is provided in Chapter 2 of the Technical Guidelines (incorporated by reference, see § 300.13).
(b) Identifying subentities for calculating reductions. If more than one calculation method is to be used, an entity must specify the portion of the entity (the subentity) to which each method will be applied. Each subentity must be clearly identified. From time to time, it may be necessary to modify existing or create new subentities. The entity must provide to EIA a full description of such changes, together with an explanation of why they were required.
(c) Choosing a base period for calculating reductions. In general, the base period used in calculating emission reductions is the single year or up to four-year period average immediately preceding the first year of calculated emission reductions.
(d) Establishing base values. To calculate emission reductions, an entity must establish a base value against which to compare reporting year performance. The minimum requirements for base values for each type of calculation method are specified in Chapter 2 of the Technical Guidelines (incorporated by reference, see § 300.13). In most cases, an historic base value, derived from emissions or other data gathered during the base period, is the minimum requirement specified. Entities may, however, choose to establish base values that are more stringent than the base values derived from the methods specified in Chapter 2 of the Technical Guidelines as long as their report indicates the rationale for the alternative base value and demonstrates that it would result in a smaller quantity of emission reductions.
(e) Emission reduction and subentity statements. For each subentity, an entity must submit to EIA the following information:
(1) An identification and description of the method used to calculate emission reductions, including:
(i) The type of calculation method;
(ii) The measure of output used (if any); and
(iii) The method-specific base period for which any required base value will be calculated.
(2) The base period used in calculating reductions. When an entity starts to report, the base period used in calculating reductions must end in the start year. However, over time the reporting entity may find it necessary to revise or establish new base periods and base values in response to significant changes in processes or output of the subentity.
(3) A description of the subentity and its primary economic activity or activities, such as electricity generation, product manufacturing, service provider, freight transport, or household operation; and
(4) A description of the emission sources or sinks covered, such as fossil fuel power plants, manufacturing facilities, commercial office buildings or heavy-duty vehicles.
(f) Changes in calculation methods, base periods and base values. When significant changes occur in the composition or output of reporting entities, a reporting entity may need to change previously specified calculation methods, base periods or base values. A reporting entity should make such changes only if necessary and it should fully document the reasons for any changes. The Technical Guidelines (incorporated by reference, see § 300.13) describe when such changes should be made and what information on such changes must be provided to DOE. In general, such changes should not result in any alterations to previously reported or registered emission reductions. A reporting entity may alter previously reported or registered emission reductions only if necessary to correct significant errors.
(g) Continuous reporting. To ensure that the summation of entity annual reports accurately represents net, multi-year emission reductions, an entity must submit a report every year, beginning with the first reduction year. An entity may use a specific base period to determine emission reductions in a given future year only if the entity has submitted qualified reports for each intervening year. If an interruption occurs in the annual reports of an entity, the entity must subsequently report on all missing years prior to qualifying for the registration of additional emission reductions.
(h) Calculation methods. An entity must calculate any change in emissions, avoided emissions or sequestration using one or more of the methods described in this paragraph and in the Technical Guidelines (incorporated by reference, see § 300.13).
(1) Changes in emissions intensity. An entity may use emissions intensity as a basis for determining emission reductions as long as the entity selects a measure of output that is:
(i) A reasonable indicator of the output produced by the entity;
(ii) A reliable indicator of changes in the entity’s activities;
(iii) Related to emissions levels; and
(iv) Any appropriate adjustments for acquisitions, divestitures, insourcing, outsourcing, or changes in products have been made, as described in the Technical Guidelines (incorporated by reference, see § 300.13).
(2) Changes in absolute emissions. An entity may use changes in the absolute (actual) emissions (direct and/or indirect) as a basis for determining net emission reductions as long as the entity makes only those adjustments required by the Technical Guidelines (incorporated by reference, see § 300.13). An entity intending to register emission reductions may use this method only if the entity demonstrates in its report that any reductions derived from such changes were not achieved as a result of reductions in the output of the entity, and certifies that emission reductions are not the result of major shifts in the types of products or services produced. Entities may report, but not register, such reductions even if the output associated with such emissions is declining.
(3) Changes in carbon storage (for actions within entity boundaries). An entity may use changes in carbon storage as a basis for determining net emission reductions as long as the entity uses estimation and measurement methods that comply with the Technical Guidelines (incorporated by reference, see § 300.13), and has included an assessment of the net changes in all sinks in its inventory.
(4) Changes in avoided emissions (for actions within entity boundaries). An entity may use changes in avoided emissions to determine its emission reductions. Avoided emissions eligible to be included in the calculation of net emission reductions that qualify for registration include those associated with the sale of electricity, steam, hot water or chilled water generated from non-emitting or low-emitting sources as a basis for determining net emission reductions as long as:
(i) The measurement and calculation methods used comply with the Technical Guidelines (incorporated by reference, see § 300.13);
(ii) The entity certifies that any increased sales were not attributable to the acquisition of a generating facility that had been previously operated, unless the entity’s base period includes generation values from the acquired facility’s operation prior to its acquisition; and
(iii) Generators of distributed energy that have net emissions in their base period and intend to report reductions resulting from changes in eligible avoided emissions, use a method specified in the Technical Guidelines (incorporated by reference, see § 300.13) that integrates the calculation of reductions resulting from both changes in emissions intensity and changes in avoided emissions.
(5) Action-specific emission reductions (for actions within entity boundaries). A number of source- or situation-specific methods are provided in the Technical Guidelines and these methods must be used to assess the annual changes in emissions for the specific sources or situation addressed by these methods. In addition, a generic action-specific method is identified in the Technical Guidelines. An entity intending to register reductions may use the generic action-specific approach only if it is not possible to measure accurately emission changes by using one of the methods identified in paragraphs (h)(1) through (h)(4) of this section. Entities that intend to register reductions and that use the generic action-specific approach must explain why it is not possible to use any of these other methods. An entity not intending to register reductions may use the generic action-specific method to determine emission reductions, as long as the entity demonstrates that the estimate is based on analysis that:
(i) Uses output, utilization and other factors that are consistent, to the maximum extent practicable, with the action’s actual performance in the year for which reductions are being reported;
(ii) Excludes any emission reductions that might have resulted from reduced output or were caused by actions likely to be associated with increases in emissions elsewhere within the entity’s operations; and
(iii) Uses methods that are in compliance with the Technical Guidelines (incorporated by reference, see § 300.13).
(i) Summary description of actions taken to reduce emissions. Each reported emission reduction must be accompanied by an identification of the types of actions that were the likely cause of the reductions achieved. Entities are also encouraged to include in their reports information on the benefits and costs of the actions taken to reduce greenhouse gas emissions, such as the expected rates of return, life cycle costs or benefit to cost ratios, using appropriate discount rates.
(j) Emission reductions associated with plant closings, voluntary actions and government (including non-U.S. regulatory regimes) requirements. (1) Each report of emission reductions must indicate whether the reported emission reductions were the result, in whole or in part, of plant closings, voluntary actions, or government requirements. EIA will presume that reductions that were not the result of plant closings or government requirements are the result of voluntary actions.
(2) If emission reductions were, in whole or in part, the direct result of plant closings that caused a decline in output, the report must identify the reductions as such; these reductions do not qualify for registration. EIA will presume that reductions calculated using the emissions intensity method do not result from a decline in output.
(3) If the reductions were associated, in whole or part, with U.S. or non-U.S. government requirements, the report should identify the government requirement involved and the effect these requirements had on the reported emission reductions. If, as a result of the reduction, a non-U.S. government issued to the reporting entity a credit or other financial benefit or regulatory relief, the report should identify the government requirement involved and describe the specific form of benefit or relief provided.
(k) Determining the entity responsible for emission reductions. The entity that EIA will presume to be responsible for emission reduction, avoided emission or sequestered carbon is the entity with financial control of the facility, land or vehicle which generated the reported emissions, generated the energy that was sold so as to avoid other emissions, or was the place where the sequestration action occurred. If control is shared, reporting of the associated emission reductions should be determined by agreement between the entities involved so as to avoid double-counting; this agreement must be reflected in the entity statement and in any report of emission reductions. EIA will presume that an entity is not responsible for any emission reductions associated with a facility, property or vehicle excluded from its entity statement.
§ 300.9 Reporting and recordkeeping requirements.
(a) Starting to report under the guidelines. An entity may report emissions and sequestration on an annual basis beginning in any year, but no earlier than the base period of 1987-1990 specified in the Energy Policy Act of 1992. To be recognized under these guidelines, all reports must conform to the measurement methods established by the Technical Guidelines (incorporated by reference, see § 300.13).
(b) Revisions to reports submitted under the guidelines. (1) Once EIA has accepted a report under this part, it may be revised by the reporting entity only under the circumstances specified in this paragraph and related provisions of the Technical Guidelines (incorporated by reference, see § 300.13). In general:
(i) Revised reports may be submitted to correct errors that have a significant effect on previously estimated emissions or emission reductions; and
(ii) Emission inventories may be revised in order to create a consistent time series based on improvements in the emission estimation or measurement techniques used.
(2) Reporting entities must provide the corrected or improved data to EIA, together with an explanation of the significance of the change and its justification.
(3) If a change in calculation methods (for inventories or reductions) is made for a particular year, the reporting entity must, if feasible, revise its base value to assure methodological consistency with the reporting year value.
(c) Definition and deadline for annual reports. Entities must report emissions on a calendar year basis, from January 1 to December 31. To be included in the earliest possible EIA annual report of greenhouse gas emissions reported under this part, entity reports that have not been independently verified must be submitted to DOE no later than July 1 for emissions occurring during the previous calendar year. Reports that have been independently verified must be submitted by September 1 for emissions occurring during the previous year.
(d) Recordkeeping. Entities intending to register reductions must maintain adequate supporting records of base period data for the duration of their participation in the 1605(b) program. Supporting records for all reporting year data must be maintained for at least three years subsequent to the relevant reporting year to enable verification of all information reported. The records should document the basis for the entity’s report to EIA, including:
(1) The content of entity statements, including the identification of the specific facilities, buildings, land holding and other operations or emission sources covered by the entity’s reports and the legal, equity, operational and other bases for their inclusion;
(2) Information on the identification and assessment of changes in entity boundaries, processes or products that might have to be reported to EIA;
(3) Any agreements or relevant communications with other entities or third parties regarding the reporting of emissions or emission reductions associated with sources the ownership or operational control of which is shared;
(4) Information on the methods used to measure or estimate emissions, and the data collection and management systems used to gather and prepare this data for inclusion in reports;
(5) Information on the methods used to calculate emission reductions, including the basis for:
(i) The selection of the specific output measures used, and the data collection and management systems used to gather and prepare output data for use in the calculation of emission reductions;
(ii) The selection and modification of all base years, base periods and baselines used in the calculation of emission reductions;
(iii) Any baseline adjustments made to reflect acquisitions, divestitures or other changes;
(iv) Any models or other estimation methods used; and
(v) Any internal or independent verification procedures undertaken.
(e) Confidentiality. DOE will protect trade secret and commercial or financial information that is privileged or confidential as provided in 5 U.S.C. 552(b)(4). An entity must clearly indicate in its 1605(b) report the information for which it requests confidentiality. DOE will handle requests for confidentiality of information submitted in 1605(b) reports in accordance with the process established in DOE’s Freedom of Information regulations at 10 CFR § 1004.11.
§ 300.10 Certification of reports.
(a) General requirement and certifying official: All reports submitted to EIA must include a certification statement, as provided in paragraph (b) of this section, signed by a certifying official of the reporting entity. A household report may be certified by one of its members. All other reports must be certified by the chief executive officer, agency head, or an officer or employee of the entity who is responsible for reporting the entity’s compliance with environmental regulations.
(b) Certification statement requirements. All entities, whether reporting or registering reductions, must certify the following:
(1) The information reported is accurate and complete;
(2) The information reported has been compiled in accordance with this part; and
(3) The information reported is consistent with information submitted in prior years, if any, or any inconsistencies with prior year’s information are documented and explained in the entity statement.
(c) Additional requirements for registering. The certification statement of an entity registering reductions must also certify that:
(1) The entity took reasonable steps to ensure that direct emissions, emission reductions, and/or sequestration reported are neither double counted nor reported by any other entity. Reasonable steps include telephone, fax, letter, or e-mail communications to ensure that another entity does not intend to report the same emissions, emission reductions, and/or sequestration to DOE. Direct communications of this kind with participants in demand-side management or other programs directed at very small emitters are not required;
(2) Any emission reductions reported or registered by the entity that were achieved by another entity (other than a very small emitter that participated in a demand-side management or other program) are included in the entity’s report only if:
(i) The other entity does not intend to report or register theses reductions directly;
(ii) There exists a written agreement with each other entity providing that the reporting entity is the entity entitled to report or register these emission reductions; and
(iii) The information reported on the other entity would meet the requirements of this part if the entity were reporting directly to DOE;
(3) None of the emissions, emission reductions, or sequestration reported were produced by shifting emissions to other entities or to non-reporting parts of the entity;
(4) None of any reported changes in avoided emissions associated with the sale of electricity, steam, hot or chilled water generated from non-emitting or low-emitting sources are attributable to the acquisition of a generating facility that has been previously operated, unless the entity’s base period includes generation values from the acquiring facility’s operation prior to its acquisition;
(5) The entity maintains records documenting the analysis and calculations underpinning the data reported on this form and records documenting the analysis and calculations underpinning the base values used in calculating annual reductions are maintained in accordance with § 300.9(d) of this part; and
(6) The entity has, or has not, obtained independent verification of the report, as described in § 300.11.
§ 300.11 Independent verification.
(a) General. Entities are encouraged to have their annual reports reviewed by independent and qualified auditors, as described in paragraphs (b), (c), and (f) of this section.
(b) Qualifications of verifiers. (1) DOE envisions that independent verification will be performed by professional verifiers (i.e., individuals or companies that provide verification or “attestation” services). EIA will consider a report to the program to be independently verified if:
(i) The lead individual verifier and other members of the verification team are accredited by one or more independent and nationally-recognized accreditation programs, described in paragraph (c) of this section, for the types of professionals needed to determine compliance with DOE’s 1605(b) guidelines;
(ii) The lead verifier has experience managing an auditing or verification process, including the recruitment and allocation of other individual verifiers, and has been empowered to make decisions relevant to the provision of a verification statement; and
(iii) All members of a verification team have education, training and/or professional experience that matches the tasks performed by the individual verifiers, as deemed necessary by the verifier accreditation program.
(2) As further guidance, all members of the verification team should be familiar with:
(i) The subject matter covered by the scope of the verification;
(ii) The requirements of this part;
(iii) Greenhouse gas emission and emission reduction quantification;
(iv) Data and information auditing sampling methods; and
(v) Risk assessment and methodologies and materiality analysis procedures outlined by other domestic and international standards.
(3) An individual verifier should have a professional degree or accreditation in engineering (environmental, industrial, chemical), accounting, economics, or a related field, supplemented by specific training and/or experience in emissions reporting and accounting, and should have his or her qualifications and continuing education periodically reviewed by an accreditation program. The skills required for verification are often cross-disciplinary. For example, an individual verifier reviewing a coal electric utility should be knowledgeable about mass balance calculations, fuel purchasing accounting, flows and stocks of coals, coal-fired boiler operation, and issues of entity definition.
(4) Companies that provide verification services must use professionals that possess the necessary skills and proficiency levels for the types of entities for which they provide verification services. Continuing training may be required to ensure all individuals have up-to-date knowledge regarding the tasks they perform.
(c) Qualifications of organizations accrediting verifiers. Organizations that accredit individual verifiers must be nationally recognized certification programs. They may include, but are not limited to the: American Institute of Certified Public Accountants; American National Standards Institute’s Registrar Accreditation Board program for Environmental Management System auditors (ANSI-RAB-EMS); Board of Environmental, Health and Safety Auditor Certification: California Climate Action Registry; Clean Development Mechanism Executive Board; and the United Kingdom Accreditation Scheme.
(d) Scope of verification. (1) As part of any independent verification, qualified verifiers must use their expertise and professional judgment to verify for accuracy, completeness and consistency with DOE’s guidelines of:
(i) The content of entity statements, annual reports and the supporting records maintained by the entity;
(ii) The representation in entity statements (or lack thereof) of any significant changes in entity boundaries, products, or processes;
(iii) The procedures and methods used to collect emissions and output data, and calculate emission reductions (for entities with widely dispersed operations, this process should include on-site reviews of a sample of the facilities);
(iv) Relevant personnel training and management systems; and
(v) Relevant quality assurance/quality control procedures.
(2) DOE expects qualified verifiers to refer to the growing body of literature on methods of evaluating the elements listed in paragraph (d)(1) of this section, such as the California Climate Action Registry Certification Protocol, the Climate Leaders Inventory Management Plan Checklist, and the draft ISO 14064.3 Protocol for Validation, Verification and Certification.
(e) Verification statement. Both the verifier and, if relevant, an officer of the company providing the verification service must sign the verification statement. The verification statement shall attest to the following:
(1) The verifier has examined all components listed in paragraph (d) of this section;
(2) The information reported in the verified entity report and this verification statement is accurate and complete;
(3) The information reported by the entity has been compiled in accordance with this part;
(4) The information reported on the entity report is consistent with information submitted in prior years, if any, or any inconsistencies with prior year’s information are documented and explained in the entity statement;
(5) The verifier used due diligence to assure that direct emissions, emission reductions, and/or sequestration reported are not reported by any other entity;
(6) Any emissions, emission reductions, or sequestration that were achieved by a third-party entity are included in this report only if there exists a written agreement with each third party indicating that they have agreed that the reporting entity should be recognized as the entity entitled to report these emissions, emission reductions, or sequestration;
(7) None of the emissions, emission reductions, or sequestration reported was produced by shifting emissions to other entities or to non-reporting parts of the entity;
(8) No reported changes in avoided emissions associated with the sale of electricity, steam, hot or chilled water generated from non-emitting or low-emitting sources are attributable to the acquisition of a generating facility that has been previously operated, unless the base year generation values are derived from records of the facility’s operation prior to its acquisition;
(9) The verifying entity has procedures in place for the maintenance of records that are sufficient to document the analysis and calculations underpinning this verification. The verifying entity shall maintain such records related to base period data submitted by the reporting entity for the duration of the reporting entity’s participation in the 1605(b) program and records related to all other verified data for a period of no less than three years; and
(10) The independent verifier is not owned in whole or part by the reporting entity, nor provides any ongoing operational or support services to the entity, except services consistent with independent financial accounting or independent certification of compliance with government or private standards.
(f) Qualifying as an independent verifier. An independent verifier may not be owned in whole or part by the reporting entity, nor may it provide any ongoing operational or support services to the entity, except services consistent with independent financial accounting or independent certification of compliance with government or private standards.
§ 300.12 Acceptance of reports and registration of entity emission reductions.
(a) Acceptance of reports. EIA will review all reports to ensure they are consistent with this part and with the Technical Guidelines (incorporated by reference, see § 300.13). EIA will also review all reports for completeness, internal consistency, arithmetic accuracy and plausibility. Subject to the availability of adequate resources, EIA intends to notify entities of the acceptance or rejection of any report within six months of its receipt.
(b) Registration of emission reductions. EIA will review each accepted report to determine if emission reductions were calculated using an acceptable base period (usually ending no earlier than 2002), and to confirm that the report complies with the other provisions of this part. EIA will also review its records to verify that the reporting entity has submitted accepted annual reports for each year between the establishment of its base period and the year covered by the current report. EIA will notify the entity that reductions meeting these requirements have been credited to the entity as “registered reductions” which can be held by the reporting entity for use (including transfer to other entities) in the event a future program that recognizes such reductions is enacted into law.
(c) Rejection of reports. If EIA does not accept a report or if it determines that emission reductions intended for registration do not qualify, EIA will return the report to the sender with an explanation of its inadequacies. The reporting entity may resubmit a modified report for further consideration at any time.
(d) EIA database and summary reports. The Administrator of EIA will establish a publicly accessible database composed of all reports that meet the definitional, measurement, calculation, and certification requirements of these guidelines. EIA will maintain separate subtotals of direct emissions, indirect emissions and carbon fluxes. A portion of the database will provide summary information on the emissions and registered emission reductions of each reporting entity.
§ 300.13 Incorporation by reference.
The Technical Guidelines for the Voluntary Reporting of Greenhouse Gases (1605(b)) Program (January 2007), referred to throughout this part as the “Technical Guidelines,” have been approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the Technical Guidelines from the Office of Policy and International Affairs, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585, or by visiting the following Web site: http://www.policy.energy.gov/enhancingGHGregistry/technicalguidelines/. The Technical Guidelines also are available for inspection at the National Archives and Record Administration (NARA). For more information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.
SUBCHAPTER C [RESERVED]
SUBCHAPTER D—ENERGY CONSERVATION
PARTS 400-417 [RESERVED]
PART 420—STATE ENERGY PROGRAM
Subpart A—General Provisions for State Energy Program Financial Assistance
§ 420.1 Purpose and scope.
It is the purpose of this part to promote the conservation of energy, to reduce the rate of growth of energy demand, and to reduce dependence on imported oil through the development and implementation of a comprehensive State Energy Program and the provision of Federal financial and technical assistance to States in support of such program.
§ 420.2 Definitions.
As used in this part:
Act means title III, part D, as amended, of the Energy Policy and Conservation Act, 42 U.S.C. 6321 et seq.
Alternative transportation fuel means methanol, denatured ethanol, and other alcohols; mixtures containing 85 percent or more by volume of methanol, denatured ethanol, and other alcohols with gasoline or other fuels; natural gas; liquified petroleum gas; hydrogen; coal-derived liquid fuels; fuels (other than alcohol) derived from biological materials (including neat biodiesel); and electricity (including electricity from solar energy).
ASHRAE/IESNA 90.1-1989, as amended means the building design standard published in December 1989 by the American Society of Heating, Refrigerating and Air-Conditioning Engineers, and the Illuminating Engineering Society of North America titled “Energy Efficient Design of New Buildings Except Low-Rise Residential Buildings,” with Addenda 90.1b-1992; Addenda 90.1d-1992; Addenda 90.1e-1992; Addenda 90.1g-1993; and Addenda 90.1i-1993, which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of this incorporation by reference is given in § 420.6(b).
Assistant Secretary means the Assistant Secretary for Energy Efficiency and Renewable Energy or any official to whom the Assistant Secretary’s functions may be redelegated by the Secretary.
British thermal unit (Btu) means the quantity of heat necessary to raise the temperature of one pound of water one degree Fahrenheit at 39.2 degrees Fahrenheit and at one atmosphere of pressure.
Building means any structure which includes provision for a heating or cooling system, or both, or for a hot water system.
Carpool means the sharing of a ride by two or more people in an automobile.
Carpool matching and promotion campaign means a campaign to coordinate riders with drivers to form carpools and/or vanpools.
Commercial building means any building other than a residential building, including any building constructed for industrial or public purposes.
Commercially available means available for purchase by the general public or target audience in the State.
Deputy Assistant Secretary means the Deputy Assistant Secretary for Building Technology, State and Community Programs or any official to whom the Deputy Assistant Secretary’s functions may be redelegated by the Assistant Secretary.
Director, Office of State and Community Programs means the official responsible for DOE’s formula grant programs to States, or any official to whom the Director’s functions may be redelegated by the Assistant Secretary.
DOE means the Department of Energy.
Energy audit means any process which identifies and specifies the energy and cost savings which are likely to be realized through the purchase and installation of particular energy efficiency measures or renewable energy measures.
Energy efficiency measure means any capital investment that reduces energy costs in an amount sufficient to recover the total cost of purchasing and installing such measure over an appropriate period of time and maintains or reduces non-renewable energy consumption.
Environmental residual means any pollutant or pollution causing factor which results from any activity.
Exterior envelope physical characteristics means the physical nature of those elements of a building which enclose conditioned spaces through which thermal energy may be transferred to or from the exterior.
Governor means the chief executive officer of a State, the District of Columbia, Puerto Rico, or any territory or possession of the United States, or a person duly designated in writing by the Governor to act upon his or her behalf.
Grantee means the State or other entity named in the notice of grant award as the recipient.
HVAC means heating, ventilating and air-conditioning.
IBR means incorporation by reference.
Industrial facility means any fixed equipment or facility which is used in connection with, or as part of, any process or system for industrial production or output.
Institution of higher education has the same meaning as such term is defined in section 1201(a) of the Higher Education Act of 1965 (20 U.S.C. 1141(a)).
Manufactured home means any dwelling covered by the Federal Manufactured Home Construction and Safety Standards, 24 CFR part 3280.
Metropolitan Planning Organization means that organization required by the Department of Transportation, and designated by the Governor as being responsible for coordination within the State, to carry out transportation planning provisions in a Standard Metropolitan Statistical Area.
Model Energy Code, 1993, including Errata, means the model building code published by the Council of American Building Officials, which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of this incorporation by reference is given in § 420.6(b).
Park-and-ride lot means a parking facility generally located at or near the trip origin of carpools, vanpools and/or mass transit.
Petroleum violation escrow funds. For purposes both of exempting petroleum violation escrow funds from the matching requirements of § 420.12 and of applying the limitations specified under § 420.18(b), this term means any funds distributed to the States by the Department of Energy or any court and identified as Alleged Crude Oil Violation funds, together with any interest earned thereon by the States, but excludes any funds designated as “excess funds” under section 3003(d) of the Petroleum Overcharge Distribution and Restitution Act, subtitle A of title III of the Omnibus Budget Reconciliation Act of 1986, Public Law 99-509, and the funds distributed under the “Warner Amendment,” section 155 of Public Law 97-377.
Plan means a State Energy Program plan including required program activities in accordance with § 420.15 and otherwise meeting the applicable provisions of this part.
Political subdivision means a unit of government within a State, including a county, municipality, city, town, township, parish, village, local public authority, school district, special district, council of governments, or any other regional or intrastate governmental entity or instrumentality of a local government exclusive of institutions of higher learning and hospitals.
Preferential traffic control means any one of a variety of traffic control techniques used to give carpools, vanpools and public transportation vehicles priority treatment over single occupant vehicles other than bicycles and other two-wheeled motorized vehicles.
Program activity means one or more State actions, in a particular area, designed to promote energy efficiency, renewable energy and alternative transportation fuel.
Public building means any building which is open to the public during normal business hours, including:
(1) Any building which provides facilities or shelter for public assembly, or which is used for educational office or institutional purposes;
(2) Any inn, hotel, motel, sports arena, supermarket, transportation terminal, retail store, restaurant, or other commercial establishment which provides services or retail merchandise;
(3) Any general office space and any portion of an industrial facility used primarily as office space;
(4) Any building owned by a State or political subdivision thereof, including libraries, museums, schools, hospitals, auditoriums, sport arenas, and university buildings; and
(5) Any public or private non-profit school or hospital.
Public transportation means any scheduled or nonscheduled transportation service for public use.
Regional Office Director means the director of a DOE Regional Office with responsibility for grants administration or any official to whom that function may be redelegated.
Renewable energy means a non-depletable source of energy.
Renewable energy measure means any capital investment that reduces energy costs in an amount sufficient to recover the total cost of purchasing and installing such measure over an appropriate period of time and that results in the use of renewable energy to replace the use of non-renewable energy.
Residential building means any building which is constructed for residential occupancy.
Secretary mean the Secretary of DOE.
SEP means the State Energy Program under this part.
Small business means a private firm that does not exceed the numerical size standard promulgated by the Small Business Administration under section 3(a) of the Small Business Act (15 U.S.C. 632) for the Standard Industrial Classification (SIC) codes designated by the Secretary of Energy.
Start-up business means a small business which has been in existence for 5 years or less.
State means a State, the District of Columbia, Puerto Rico, or any territory or possession of the United States.
State or local government building means any building owned and primarily occupied by offices or agencies of a State; and any building of a unit of local government or a public care institution which could be covered by part H, title III, of the Energy Policy and Conservation Act, 42 U.S.C. 6372-6372i.
Transit level of service means characteristics of transit service provided which indicate its quantity, geographic area of coverage, frequency and quality (comfort, travel, time, fare and image).
Urban area traffic restriction means a setting aside of certain portions of an urban area as restricted zones where varying degrees of limitation are placed on general traffic usage and/or parking.
Vanpool means a group of riders using a vehicle, with a seating capacity of not less than eight individuals and not more than fifteen individuals, for transportation to and from their residence or other designated locations and their place of employment, provided the vehicle is driven by one of the pool members.
Variable working schedule means a flexible working schedule to facilitate activities such as carpools, vanpools, public transportation usage, and/or telecommuting.
§ 420.3 Administration of financial assistance.
(a) Financial assistance under this part shall comply with applicable laws and regulations including, but without limitation, the requirements of:
(1) Executive Order 12372, Intergovernmental Review of Federal Programs, as implemented by 10 CFR part 1005.
(2) DOE Financial Assistance Rules (10 CFR part 600); and
(3) Other procedures which DOE may from time to time prescribe for the administration of financial assistance under this part.
(b) The budget period(s) covered by the financial assistance provided to a State according to § 420.11(b) or § 420.33 shall be consistent with 10 CFR part 600.
(c) Subawards are authorized under this part and are subject to the requirements of this part and 10 CFR part 600.
§ 420.4 Technical assistance.
At the request of the Governor of any State to DOE and subject to the availability of personnel and funds, DOE will provide information and technical assistance to the State in connection with effectuating the purposes of this part.
§ 420.5 Reports.
(a) Each State receiving financial assistance under this part shall submit to the cognizant Regional Office Director a quarterly program performance report and a quarterly financial status report.
(b) Reports under this section shall contain such information as the Secretary may prescribe in order to monitor effectively the implementation of a State’s activities under this part.
(c) The reports shall be submitted within 30 days following the end of each calendar year quarter.
§ 420.6 Reference standards.
(a) The following standards which are not otherwise set forth in this part are incorporated by reference and made a part of this part. The following standards have been approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A notice of any change in these materials will be published in the
(b) The following standards are incorporated by reference in this part:
(1) The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE), 1791 Tullie Circle, N.E., Atlanta, Georgia 30329, (404) 636-8400/The Illuminating Engineering Society of North America (IESNA), 345 East 47th Street, New York, New York 10017, (212) 705-7913: (i) ASHRAE/IESNA 90.1-1989, entitled “Energy Efficient Design of New Buildings Except Low-Rise Residential Buildings,” with Addenda 90.1b-1992; Addenda 90.1d-1992; Addenda 90.1e-1992; Addenda 90.1g-1993; and Addenda 90.1i-1993, IBR approved for § 420.2 and § 420.15.
(2) The Council of American Building Officials (CABO), 5203 Leesburg Pike, Suite 708, Falls Church, Virginia 22041, (703) 931-4533: (i) The Model Energy Code, 1993, including Errata, IBR approved for § 420.2 and § 420.15.
Subpart B—Formula Grant Procedures
§ 420.10 Purpose.
This subpart specifies the procedures that apply to the Formula Grant part of the State Energy Program, which allows States to apply for financial assistance to undertake a wide range of required and optional energy-related activities provided for under § 420.15 and § 420.17. Funding for these activities is allocated to the States based on funds available for any fiscal year, as described under § 420.11.
§ 420.11 Allocation of funds among the States.
(a) The cognizant Regional Office Director shall provide financial assistance to each State having an approved annual application from funds available for any fiscal year to develop, modify, or implement a plan.
(b) DOE shall allocate financial assistance to develop, implement or modify plans among the States from funds available for any fiscal year, as follows:
(1) If the available funds equal $25.5 million, such funds shall be allocated to the States according to Table 1 of this section.
(2) The base allocation for each State is listed in Table 1.
Table 1—Base Allocation by State
| State/Territory | |
|---|---|
| Alabama | $381,000 |
| Alaska | 180,000 |
| Arizona | 344,000 |
| Arkansas | 307,000 |
| California | 1,602,000 |
| Colorado | 399,000 |
| Connecticut | 397,000 |
| Delaware | 164,000 |
| District of Columbia | 158,000 |
| Florida | 831,000 |
| Georgia | 534,000 |
| Hawaii | 170,000 |
| Idaho | 190,000 |
| Illinois | 1,150,000 |
| Indiana | 631,000 |
| Iowa | 373,000 |
| Kansas | 327,000 |
| Kentucky | 411,000 |
| Louisiana | 446,000 |
| Maine | 231,000 |
| Maryland | 486,000 |
| Massachusetts | 617,000 |
| Michigan | 973,000 |
| Minnesota | 584,000 |
| Mississippi | 279,000 |
| Missouri | 518,000 |
| Montana | 182,000 |
| Nebraska | 246,000 |
| Nevada | 196,000 |
| New Hampshire | 216,000 |
| New Jersey | 783,000 |
| New Mexico | 219,000 |
| New York | 1,633,000 |
| North Carolina | 564,000 |
| North Dakota | 172,000 |
| Ohio | 1,073,000 |
| Oklahoma | 352,000 |
| Oregon | 325,000 |
| Pennsylvania | 1,090,000 |
| Rhode Island | 199,000 |
| South Carolina | 340,000 |
| South Dakota | 168,000 |
| Tennessee | 476,000 |
| Texas | 1,322,000 |
| Utah | 242,000 |
| Vermont | 172,000 |
| Virginia | 571,000 |
| Washington | 438,000 |
| West Virginia | 286,000 |
| Wisconsin | 604,000 |
| Wyoming | 155,000 |
| American Samoa | 115,000 |
| Guam | 120,000 |
| Northern Marianas | 114,000 |
| Puerto Rico | 322,000 |
| U.S. Virgin Islands | 122,000 |
| Total | 25,500,000 |
(3) If the available funds for any fiscal year are less than $25.5 million, then the base allocation for each State shall be reduced proportionally.
(4) If the available funds exceed $25.5 million, $25.5 million shall be allocated as specified in Table 1 and any in excess of $25.5 million shall be allocated as follows:
(i) One-third of the available funds is divided among the States equally;
(ii) One-third of the available funds is divided on the basis of the population of the participating States as contained in the most recent reliable census data available from the Bureau of the Census, Department of Commerce, for all participating States at the time DOE needs to compute State formula shares; and
(iii) One-third of the available funds is divided on the basis of the energy consumption of the participating States as contained in the most recent State Energy Data Report available from DOE’s Energy Information Administration.
(c) The budget period covered by the financial assistance provided to a State according to § 420.11(b) shall be consistent with 10 CFR part 600.
§ 420.12 State matching contribution.
(a) Each State shall provide cash, in kind contributions, or both for SEP activities in an amount totaling not less than 20 percent of the financial assistance allocated to the State under § 420.11(b).
(b) Cash and in-kind contributions used to meet this State matching requirement are subject to the limitations on expenditures described in § 420.18(a), but are not subject to the 20 percent limitation in § 420.18(b).
(c) Nothing in this section shall be read to require a match for petroleum violation escrow funds used under this subpart.
§ 420.13 Annual State applications and amendments to State plans.
(a) To be eligible for financial assistance under this subpart, a State shall submit to the cognizant Regional Office Director an original and two copies of the annual application executed by the Governor, including an amended State plan or any amendments to the State plan needed to reflect changes in the activities the State is planning to undertake for the fiscal year concerned. The date for submission of the annual State application shall be set by DOE.
(b) An application shall include:
(1) A face sheet containing basic identifying information, on Standard Form (SF) 424;
(2) A description of the energy efficiency, renewable energy, and alternative transportation fuel goals to be achieved, including wherever practicable:
(i) An estimate of the energy to be saved by implementation of the State plan;
(ii) Why the goals were selected;
(iii) How the attainment of the goals will be measured by the State; and
(iv) How the program activities included in the State plan represent a strategy to achieve these goals;
(3) With respect to financial assistance under this subpart, a goal, consisting of an improvement of 25 percent or more in the efficiency of use of energy in the State concerned in the calendar year 2012, as compared to the calendar year 1990, and may contain interim goals;
(4) For the budget period for which financial assistance will be provided:
(i) A total program budget with supporting justification, broken out by object category and by source of funding;
(ii) The source and amount of State matching contribution;
(iii) A narrative statement detailing the nature of State plan amendments and of new program activities.
(iv) For each program activity, a budget and listing of milestones; and
(v) An explanation of how the minimum criteria for required program activities prescribed in § 420.15 have been implemented and are being maintained.
(5) If any of the activities being undertaken by the State in its plan have environmental impacts, a detailed description of the increase or decrease in environmental residuals expected from implementation of a plan defined insofar as possible through the use of information to be provided by DOE and an indication of how these environmental factors were considered in the selection of program activities.
(6) If a State is undertaking program activities involving purchase or installation of materials or equipment for weatherization of low-income housing, an explanation of how these activities would supplement and not supplant the existing DOE program under 10 CFR part 440.
(7) A reasonable assurance to DOE that it has established policies and procedures designed to assure that Federal financial assistance under this subpart will be used to supplement, and not to supplant, State and local funds, and to the extent practicable, to increase the amount of such funds that otherwise would be available, in the absence of such Federal financial assistance, for those activities set forth in the State Energy Program plan approved pursuant to this subpart;
(8) An assurance that the State shall comply with all applicable statutes and regulations in effect with respect to the periods for which it receives grant funding; and
(9) For informational purposes only, and not subject to DOE review, an energy emergency plan for an energy supply disruption, as designed by the State consistent with applicable Federal and State law including an implementation strategy or strategies (including regional coordination) for dealing with energy emergencies.
(c) The Governor may request an extension of the annual submission date by submitting a written request to the cognizant Regional Office Director not less than 15 days prior to the annual submission date. The extension shall be granted only if, in the cognizant Regional Office Director’s judgment, acceptable and substantial justification is shown, and the extension would further objectives of the Act.
(d) The Secretary, or a designee, shall, at least once every three years from the submission date of each State plan, invite the Governor of the State to review and, if necessary, revise the energy conservation plan of such State. Such reviews should consider the energy conservation plans of other States within the region, and identify opportunities and actions that may be carried out in pursuit of common energy conservation goals.
§ 420.14 Review and approval of annual State applications and amendments to State plans.
(a) After receipt of an application for financial assistance under this subpart and for approval of an amendment, if any, to a State plan, the cognizant Regional Office Director may request the State to submit within a reasonable period of time any revisions necessary to make the application complete and to bring the application into compliance with the requirements of subparts A and B of this part. The cognizant Regional Office Director shall attempt to resolve any dispute over the application informally and to seek voluntary compliance. If a State fails to submit timely appropriate revisions to complete an application or to bring it into compliance, the cognizant Regional Office Director may reject the application in a written decision, including a statement of reasons, which shall be subject to administrative review under § 420.19 of subparts A and B of this part.
(b) On or before 60 days from the date that a timely filed application is complete, the cognizant Regional Office Director shall—
(1) Approve the application in whole or in part to the extent that—
(i) The application conforms to the requirements of subparts A and B of this part;
(ii) The proposed program activities are consistent with a State’s achievement of its energy conservation goals in accordance with § 420.13; and
(iii) The provisions of the application regarding program activities satisfy the minimum requirements prescribed by § 420.15 and § 420.17 as applicable;
(2) Approve the application in whole or in part subject to special conditions designed to ensure compliance with the requirements of subparts A and B of this part; or
(3) Disapprove the application if it does not conform to the requirements of subparts A and B of this part.
§ 420.15 Annual State applications and amendments to State plans.
(a) Mandatory lighting efficiency standards for public buildings shall:
(1) Be implemented throughout the State, except that the standards shall be adopted by the State as a model code for those local governments of the State for which the State’s constitution reserves the exclusive authority to adopt and implement building standards within their jurisdictions;
(2) Apply to all public buildings (except for public buildings owned or leased by the United States), above a certain size, as determined by the State;
(3) For new public buildings, be no less stringent than the provisions of ASHRAE/IESNA 90.1-1989, and should be updated by enactment of, or support for the enactment into local codes or standards, which, at a minimum, are comparable to provisions of ASHRAE/IESNA 90.1-1989 which is incorporated by reference in accordance with 5 U.S.C. 552 (a) and 1 CFR part 51. The availability of this incorporation by reference is given in § 420.6; and
(4) For existing public buildings, contain the elements deemed appropriate by the State.
(b) Program activities to promote the availability and use of carpools, vanpools, and public transportation shall:
(1) Have at least one of the following actions under implementation in at least one urbanized area with a population of 50,000 or more within the State or in the largest urbanized area within the State if that State does not have an urbanized area with a population of 50,000 or more:
(i) A carpool/vanpool matching and promotion campaign;
(ii) Park-and-ride lots;
(iii) Preferential traffic control for carpoolers and public transportation patrons;
(iv) Preferential parking for carpools and vanpools;
(v) Variable working schedules;
(vi) Improvement in transit level of service for public transportation;
(vii) Exemption of carpools and vanpools from regulated carrier status;
(viii) Parking taxes, parking fee regulations or surcharge on parking costs;
(ix) Full-cost parking fees for State and/or local government employees;
(x) Urban area traffic restrictions;
(xi) Geographical or time restrictions on automobile use; or
(xii) Area or facility tolls; and
(2) Be coordinated with the relevant Metropolitan Planning Organization, unless no Metropolitan Planning Organization exists in the urbanized area, and not be inconsistent with any applicable Federal requirements.
(c) Mandatory standards and policies affecting the procurement practices of the State and its political subdivisions to improve energy efficiency shall—
(1) With respect to all State procurement and with respect to procurement of political subdivisions to the extent determined feasible by the State, be under implementation; and
(2) Contain the elements deemed appropriate by the State to improve energy efficiency through the procurement practices of the State and its political subdivisions.
(d) Mandatory thermal efficiency standards for new and renovated buildings shall—
(1) Be implemented throughout the State, with respect to all buildings (other than buildings owned or leased by the United States, buildings whose peak design rate of energy usage for all purposes is less than one watt (3.4 Btu’s per hour) per square foot of floor space for all purposes, or manufactured homes), except that the standards shall be adopted by the State as a model code for those local governments of the State for which the State’s law reserves the exclusive authority to adopt and implement building standards within their jurisdictions;
(2) Take into account the exterior envelope physical characteristics, HVAC system selection and configuration, HVAC equipment performance and service water heating design and equipment selection;
(3) For all new commercial and multifamily high-rise buildings, be no less stringent than provisions of sections 7-12 of ASHRAE/IESNA 90.1-1989, and should be updated by enactment of, or support for the enactment into local codes or standards, which, at a minimum, are comparable to provisions of ASHRAE/IESNA 90.1-1989; and
(4) For all new single-family and multifamily low-rise residential buildings, be no less stringent than the Model Energy Code, 1993, and should be updated by enactment of, or support for the enactment into local codes or standards, which, at a minimum, are comparable to the Model Energy Code, 1993, which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of this incorporation by reference is given in § 420.6;
(5) For renovated buildings:
(i) Apply to those buildings determined by the State to be renovated buildings; and
(ii) Contain the elements deemed appropriate by the State regarding thermal efficiency standards for renovated buildings.
(e) A traffic law or regulation which permits the operator of a motor vehicle to make a turn at a red light after stopping shall:
(1) Be in a State’s motor vehicle code and under implementation throughout all political subdivisions of the State;
(2) Permit the operator of a motor vehicle to make a right turn (left turn with respect to the Virgin Islands) at a red traffic light after stopping except where specifically prohibited by a traffic sign for reasons of safety or except where generally prohibited in an urban enclave for reasons of safety; and
(3) Permit the operator of a motor vehicle to make a left turn from a one-way street to a one-way street (right turn with respect to the Virgin Islands) at a red traffic light after stopping except where specifically prohibited by a traffic sign for reasons of safety or except where generally prohibited in an urban enclave for reasons of safety.
(f) Procedures must exist for ensuring effective coordination among various local, State, and Federal energy efficiency, renewable energy and alternative transportation fuel programs within the State, including any program administered within the Office of Building Technology, State and Community Programs of the Department of Energy and the Low Income Home Energy Assistance Program administered by the Department of Health and Human Services.
(g) The mandatory conduct of activities to support transmission and distribution planning, including—
(1) Support for local governments and Indian Tribes;
(2) Feasibility studies for transmission line routes and alternatives;
(3) Preparation of necessary project design and permits; and
(4) Outreach to affected stakeholders.
§ 420.16 Extensions for compliance with required program activities.
An extension of time by which a required program activity must be ready for implementation may be granted if DOE determines that the extension is justified. A written request for an extension, with accompanying justification and an action plan acceptable to DOE for achieving compliance in the shortest reasonable time, shall be made to the cognizant Regional Office Director. Any extension shall be only for the shortest reasonable time that DOE determines necessary to achieve compliance. The action plan shall contain a schedule for full compliance and shall identify and make the most reasonable commitment possible to provision of the resources necessary for achieving the scheduled compliance.
§ 420.17 Optional elements of State Energy Program plans.
(a) Other appropriate activities or programs may be included in the State plan. These activities may include, but are not limited to, the following:
(1) Program activities of public education to promote energy efficiency, renewable energy, and alternative transportation fuels;
(2) Program activities to increase transportation energy efficiency, including programs to accelerate the use of alternative transportation fuels for government vehicles, fleet vehicles, taxis, mass transit, and privately owned vehicles;
(3) Program activities for financing energy efficiency measures and renewable energy measures—
(i) Which may include loan programs and performance contracting programs for leveraging of additional public and private sector funds and program activities which allow rebates, grants, or other incentives for the purchase of energy efficiency measures and renewable energy measures; or
(ii) In addition to or in lieu of program activities described in paragraph (a)(3)(i) of this section, which may be used in connection with public or nonprofit buildings owned and operated by a State, a political subdivision of a State or an agency or instrumentality of a State, or an organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986 including public and private non-profit schools and hospitals, and local government buildings;
(4) Program activities for encouraging and for carrying out energy audits with respect to buildings and industrial facilities (including industrial processes) within the State;
(5) Program activities to promote the adoption of integrated energy plans which provide for:
(i) Periodic evaluation of a State’s energy needs, available energy resources (including greater energy efficiency), and energy costs; and
(ii) Utilization of adequate and reliable energy supplies, including greater energy efficiency, that meet applicable safety, environmental, and policy requirements at the lowest cost;
(6) Program activities to promote energy efficiency in residential housing, such as:
(i) Program activities for development and promotion of energy efficiency rating systems for newly constructed housing and existing housing so that consumers can compare the energy efficiency of different housing; and
(ii) Program activities for the adoption of incentives for builders, utilities, and mortgage lenders to build, service, or finance energy efficient housing;
(7) Program activities to identify unfair or deceptive acts or practices which relate to the implementation of energy efficiency measures and renewable energy measures and to educate consumers concerning such acts or practices;
(8) Program activities to modify patterns of energy consumption so as to reduce peak demands for energy and improve the efficiency of energy supply systems, including electricity supply systems;
(9) Program activities to promote energy efficiency as an integral component of economic development planning conducted by State, local, or other governmental entities or by energy utilities;
(10) Program activities (enlisting appropriate trade and professional organizations in the development and financing of such programs) to provide training and education (including, if appropriate, training workshops, practice manuals, and testing for each area of energy efficiency technology) to building designers and contractors involved in building design and construction or in the sale, installation, and maintenance of energy systems and equipment to promote building energy efficiency;
(11) Program activities for the development of building retrofit standards and regulations, including retrofit ordinances enforced at the time of the sale of a building;
(12) Program activities to provide support for prefeasibility and feasibility studies for projects that utilize renewable energy and energy efficiency resource technologies in order to facilitate access to capital and credit for such projects;
(13) Program activities to facilitate and encourage the voluntary use of renewable energy technologies for eligible participants in Federal agency programs, including the Rural Electrification Administration and the Farmers Home Administration; and
(14) In accordance with paragraph (b) of this section, program activities to implement the Energy Technology Commercialization Services Program.
(b) This section prescribes requirements for establishing State-level Energy Technology Commercialization Services Program as an optional element of State plans.
(1) The program activities to implement the functions of the Energy Technology Commercialization Services Program shall:
(i) Aid small and start-up businesses in discovering useful and practical information relating to manufacturing and commercial production techniques and costs associated with new energy technologies;
(ii) Encourage the application of such information in order to solve energy technology product development and manufacturing problems;
(iii) Establish an Energy Technology Commercialization Services Program affiliated with an existing entity in each State;
(iv) Coordinate engineers and manufacturers to aid small and start-up businesses in solving specific technical problems and improving the cost effectiveness of methods for manufacturing new energy technologies;
(v) Assist small and start-up businesses in preparing the technical portions of proposals seeking financial assistance for new energy technology commercialization; and
(vi) Facilitate contract research between university faculty and students and small start-up businesses, in order to improve energy technology product development and independent quality control testing.
(2) Each State Energy Technology Commercialization Services Program shall develop and maintain a data base of engineering and scientific experts in energy technologies and product commercialization interested in participating in the service. Such data base shall, at a minimum, include faculty of institutions of higher education, retired manufacturing experts, and National Laboratory personnel.
(3) The services provided by the Energy Technology Commercialization Services Program established under this subpart shall be available to any small or start-up business. Such service programs shall charge fees which are affordable to a party eligible for assistance, which shall be determined by examining factors, including the following: the costs of the services received; the need of the recipient for the services; and the ability of the recipient to pay for the services.
§ 420.18 Expenditure prohibitions and limitations.
(a) No financial assistance provided to a State under this subpart shall be used:
(1) For construction, such as construction of mass transit systems and exclusive bus lanes, or for construction or repair of buildings or structures;
(2) To purchase land, a building or structure or any interest therein;
(3) To subsidize fares for public transportation;
(4) To subsidize utility rate demonstrations or State tax credits for energy conservation measures or renewable energy measures; or
(5) To conduct, or purchase equipment to conduct, research, development or demonstration of energy efficiency or renewable energy techniques and technologies not commercially available.
(b) No more than 20 percent of the financial assistance awarded to the State for this program shall be used to purchase office supplies, library materials, or other equipment whose purchase is not otherwise prohibited by this section. Nothing in this paragraph shall be read to apply this 20 percent limitation to petroleum violation escrow funds used under this subpart.
(c) Demonstrations of commercially available energy efficiency or renewable energy techniques and technologies are permitted, and are not subject to the prohibitions of § 420.18(a)(1), or to the limitation on equipment purchases of § 420.18(b).
(d) A State may use regular or revolving loan mechanisms to fund SEP services which are consistent with this subpart and which are included in the State’s approved SEP plan. The State may use loan repayments and any interest on the loan funds only for activities which are consistent with this subpart and which are included in the State’s approved SEP plan.
(e) A State may use funds under this subpart for the purchase and installation of equipment and materials for energy efficiency measures and renewable energy measures, including reasonable design costs, subject to the following terms and conditions:
(1) Such use must be included in the State’s approved plan and, if funded by petroleum violation escrow funds, must be consistent with any judicial or administrative terms and conditions imposed upon State use of such funds;
(2) A State may use for these purposes no more than 50 percent of all funds allocated by the State to SEP in a given year, regardless of source, except that this limitation shall not include regular and revolving loan programs funded with petroleum violation escrow funds, and is subject to waiver by DOE for good cause. Loan documents shall ensure repayment of principal and interest within a reasonable period of time, and shall not include provisions of loan forgiveness.
(3) Buildings owned or leased by the United States are not eligible for energy efficiency measures or renewable energy measures under paragraph (e) of this section;
(4) Funds must be used to supplement and no funds may be used to supplant weatherization activities under the Weatherization Assistance Program for Low-Income Persons, under 10 CFR part 440;
(5) Subject to paragraph (f) of this section, a State may use a variety of financial incentives to fund purchases and installation of materials and equipment under paragraph (e) of this section including, but not limited to, regular loans, revolving loans, loan buy-downs, performance contracting, rebates and grants.
(f) The following mechanisms are not allowed for funding the purchase and installation of materials and equipment under paragraph (e) of this section:
(1) Rebates for more than 50 percent of the total cost of purchasing and installing materials and equipment (States shall set appropriate restrictions and limits to insure the most efficient use of rebates); and
(2) Loan guarantees.
§ 420.19 Administrative review.
(a) A State shall have 20 days from the date of receipt of a decision under § 420.14 to file a notice requesting administrative review in accordance with paragraph (b) of this section. If an applicant does not timely file such a notice, the decision under § 420.14 shall become final for DOE.
(b) A notice requesting administrative review shall be filed with the cognizant Regional Office Director and shall be accompanied by a written statement containing supporting arguments. If the cognizant Regional Office Director has disapproved an entire application for financial assistance, the State may request a public hearing.
(c) A notice or any other document shall be deemed filed under this section upon receipt.
(d) On or before 15 days from receipt of a notice requesting administrative review which is timely filed, the cognizant Regional Office Director shall forward to the Deputy Assistant Secretary, the notice requesting administrative review, the decision under § 420.14 as to which administrative review is sought, a draft recommended final decision for concurrence, and any other relevant material.
(e) If the State requests a public hearing on the disapproval of an entire application for financial assistance under this subpart, the Deputy Assistant Secretary, within 15 days, shall give actual notice to the State and
(f) On or before 45 days from receipt of documents under paragraph (d) of this section or the conclusion of the public hearing, whichever is later, the Deputy Assistant Secretary shall concur in, concur in as modified, or issue a substitute for the recommended decision of the cognizant Regional Office Director.
(g) On or before 15 days from the date of receipt of the determination under paragraph (f) of this section, the Governor may file an application for discretionary review by the Assistant Secretary. On or before 15 days from filing, the Assistant Secretary shall send a notice to the Governor stating whether the Deputy Assistant Secretary’s determination will be reviewed. If the Assistant Secretary grants a review, a decision shall be issued no later than 60 days from the date review is granted. The Assistant Secretary may not issue a notice or decision under this paragraph without the concurrence of the DOE Office of General Counsel.
(h) A decision under paragraph (f) of this section shall be final for DOE if there is no review under paragraph (g) of this section. If there is review under paragraph (g) of this section, the decision thereunder shall be final for DOE and no appeal shall lie elsewhere in DOE.
(i) Prior to the effective date of the termination or suspension of a grant award for failure to implement an approved State plan in compliance with the requirements of this subpart, a grantee shall have the right to written notice of the basis for the enforcement action and of the opportunity for public hearing before the DOE Financial Assistance Appeals Board notwithstanding any provisions to the contrary of 10 CFR 600.22, 600.24, 600.25, and 600.243. To obtain a public hearing, the grantee must request an evidentiary hearing, with prior
Subpart C—Implementation of Special Projects Financial Assistance
§ 420.30 Purpose and scope.
(a) This subpart sets forth DOE’s policies and procedures for implementing special projects financial assistance under this part.
(b) For years in which such funding is available, States may apply for financial assistance to undertake a variety of State-oriented energy-related special projects activities in addition to the funds provided under the regular SEP grants.
(c) The types of funded activities may vary from year to year, and from State to State, depending upon funds available for each type of activity and DOE and State priorities.
(d) A number of end-use sector programs in the Office of Energy Efficiency and Renewable Energy participate in the funding of these activities, and the projects must meet the requirements of those programs.
(e) The purposes of the special project activities are:
(1) To utilize States to accelerate deployment of energy efficiency, renewable energy, and alternative transportation fuel technologies;
(2) To facilitate the commercialization of emerging and underutilized energy efficiency and renewable energy technologies; and
(3) To increase the responsiveness of Federally funded technology development efforts to the needs of the marketplace.
§ 420.31 Notice of availability.
(a) If in any fiscal year DOE has funds available for special projects, DOE shall publish in the
(b) Each notice of availability shall cite this part and shall include:
(1) Brief descriptions of the activities for which funding is available;
(2) The amount of money DOE has available or estimates it will have available for award for each type of activity, and the total amount available;
(3) The program official to contact for additional information, application forms, and the program guidance/solicitation document; and
(4) The dates when:
(i) The program guidance/solicitation will be available; and
(ii) The applications for financial assistance must be received by DOE.
§ 420.32 Program guidance/solicitation.
After the publication of the notice of availability in the
(a) The control number of the program;
(b) The expected duration of DOE support or period of performance;
(c) An application form or the format to be used, location for application submission, and number of copies required;
(d) The name of the DOE program office contact from whom to seek additional information;
(e) Detailed descriptions of each type of program activity for which financial assistance is being offered;
(f) The amount of money available for award, together with any limitations as to maximum or minimum amounts expected to be awarded;
(g) Deadlines for submitting applications;
(h) Evaluation criteria that DOE will apply in the selection and ranking process for applications for each program activity;
(i) The evaluation process to be applied to each type of program activity;
(j) A listing of program policy factors if any that DOE may use in the final selection process, in addition to the results of the evaluations, including:
(1) The importance and relevance of the proposed applications to SEP and the participating programs in the Office of Energy Efficiency and Renewable Energy; and
(2) Geographical diversity;
(k) Reporting requirements;
(l) References to:
(1) Statutory authority for the program;
(2) Applicable rules; and
(3) Other terms and conditions applicable to awards made under the program guidance/solicitation; and
(m) A statement that DOE reserves the right to fund in whole or in part, any, all, or none of the applications submitted.
§ 420.33 Application requirements.
(a) Consistent with § 420.32 of this part, DOE shall set forth general and special project activity-specific requirements for applications for special projects financial assistance in the program guidance/solicitation.
(b) In addition to any other requirements, all applications shall provide:
(1) A detailed description of the proposed project, including the objectives of the project in relationship to DOE’s program and the State’s plan for carrying it out;
(2) A detailed budget for the entire proposed period of support, with written justification sufficient to evaluate the itemized list of costs provided on the entire project; and
(3) An implementation schedule for carrying out the project.
(c) DOE may, subsequent to receipt of an application, request additional budgetary information from a State when necessary for clarification or to make informed preaward determinations.
(d) DOE may return an application which does not include all information and documentation required by this subpart, 10 CFR part 600, or the program guidance/solicitation, when the nature of the omission precludes review of the application.
§ 420.34 Matching contributions or cost-sharing.
DOE may require (as set forth in the program guidance/solicitation) States to provide either:
(a) A matching contribution of at least a specified percentage of the Federal financial assistance award; or
(b) A specified share of the total cost of the project for which financial assistance is provided.
§ 420.35 Application evaluation.
(a) DOE staff at the cognizant Regional Office shall perform an initial review of all applications to ensure that the State has provided the information required by this subpart, 10 CFR part 600, and the program guidance/solicitation.
(b) DOE shall group, and technically evaluate according to program activity, all applications determined to be complete and satisfactory.
(c) DOE shall select evaluators on the basis of their professional qualifications and expertise relating to the particular program activity being evaluated.
(1) DOE anticipates that evaluators will primarily be DOE employees; but
(2) If DOE uses non-DOE evaluators, DOE shall require them to comply with all applicable DOE rules or directives concerning the use of outside evaluators.
§ 420.36 Evaluation criteria.
The evaluation criteria, including program activity-specific criteria, will be set forth in the program guidance/solicitation document.
§ 420.37 Selection.
(a) DOE may make selection of applications for award based on:
(1) The findings of the technical evaluations;
(2) The priorities of DOE, SEP, and the participating program offices;
(3) The availability of funds for the various special project activities; and
(4) Any program policy factors set forth in the program guidance/solicitation.
(b) The Director, Office of State and Community Programs makes the final selections of projects to be awarded financial assistance.
§ 420.38 Special projects expenditure prohibitions and limitations.
(a) Expenditures under the special projects are subject to 10 CFR part 600 and to any prohibitions and limitations required by the DOE programs that are providing the special projects funding.
(b) DOE must state any expenditure prohibitions or limitations specific to a particular category of special projects in the annual SEP special projects solicitation/guidance.
PART 429—CERTIFICATION, COMPLIANCE, AND ENFORCEMENT FOR CONSUMER PRODUCTS AND COMMERCIAL AND INDUSTRIAL EQUIPMENT
Subpart A—General Provisions
§ 429.1 Purpose and scope.
This part sets forth the procedures for certification, determination and enforcement of compliance of covered products and covered equipment with the applicable energy conservation standards set forth in parts 430 and 431 of this subchapter.
§ 429.2 Definitions.
(a) The definitions found in 10 CFR parts 430 and 431 apply for purposes of this part.
(b) The following definitions apply for the purposes of this part. Any words or terms defined in this section or elsewhere in this part shall be defined as provided in sections 321 and 340 of the Energy Policy Conservation Act, as amended, hereinafter referred to as “the Act.”
Energy conservation standard means any standards meeting the definitions of that term in 42 U.S.C. 6291(6) and 42 U.S.C. 6311(18) as well as any other water conservation standards and design requirements found in this part or parts 430 or 431.
Engineered-to-order means a basic model of commercial water heating equipment, commercial packaged boiler, commercial heating, ventilation, and air conditioning (HVAC) equipment, or commercial refrigeration equipment that is: Not listed in any catalogs or marketing literature and designed and built to specific customer requirements. A unit of an engineered-to-order basic model is not offered as a set of options (e.g., configure-to-order, menu-system).
Independent means, in the context of a nationally recognized certification program, or accreditation program for electric motors, an entity that is not controlled by, or under common control with, electric motor manufacturers, importers, private labelers, or vendors, and that has no affiliation, financial ties, or contractual agreements, apparently or otherwise, with such entities that would:
(i) Hinder the ability of the program to evaluate fully or report the measured or calculated energy efficiency of any electric motor, or
(ii) Create any potential or actual conflict of interest that would undermine the validity of said evaluation. For purposes of this definition, financial ties or contractual agreements between an electric motor manufacturer, importer, private labeler or vendor and a nationally recognized certification program, or accreditation program exclusively for certification or accreditation services does not negate an otherwise independent relationship.
Manufacturer’s model number means the identifier used by a manufacturer to uniquely identify the group of identical or essentially identical covered products or covered equipment to which a particular unit belongs. The manufacturer’s model number typically appears on the product nameplates, in product catalogs and in other product advertising literature.
§ 429.3 Sources for information and guidance.
(a) General. The standards listed in this paragraph are referred to in §§ 429.73 and 429.74 and are not incorporated by reference. These sources are provided here for information and guidance only.
(b) ISO/IEC. International Organization for Standardization (ISO), 1, ch. de la Voie-Creuse, CP 56, CH-1211 Geneva 20, Switzerland/International Electrotechnical Commission, 3, rue de Varembé, P.O. Box 131, CH-1211 Geneva 20, Switzerland.
(1) International Organization for Standardization (ISO)/International Electrotechnical Commission (IEC), (“ISO/IEC”) 17025, “General requirements for the competence of calibration and testing laboratories,” November 2017.
(2) [Reserved]
(c) NVLAP. National Voluntary Laboratory Accreditation Program, National Institute of Standards and Technology, 100 Bureau Drive, M/S 2140, Gaithersburg, MD 20899-2140, 301-975-4016, or go to www.nist.gov/nvlap/. Also see http://www.nist.gov/nvlap/nvlap-handbooks.cfm.
(1) National Institute of Standards and Technology (NIST) Handbook 150, “NVLAP Procedures and General Requirements,” 2000 edition, August 2020.
(2) National Institute of Standards and Technology (NIST) Handbook 150-10, “Efficiency of Electric Motors,” 2020 edition, April 2020.
§ 429.4 Materials incorporated by reference.
(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the U.S. Department of Energy (DOE) must publish a document in the
(b) AHAM. Association of Home Appliance Manufacturers, 1111 19th Street, NW., Suite 402, Washington, DC 20036, 202-872-5955, or go to www.aham.org.
(1) ANSI/AHAM DW-1-2010, Household Electric Dishwashers, (ANSI approved September 18, 2010), IBR approved for § 429.19.
(2) ANSI/AHAM PAC-1-2015 (“ANSI/AHAM PAC-1-2015”), Portable Air Conditioners, June 19, 2015, IBR approved for § 429.62.
(3) AHAM PAC-1-2022, Energy Measurement Test Procedure for Portable Air Conditioners, Copyright 2022. IBR approved for § 429.62.
(c) AHRI. Air-Conditioning, Heating, and Refrigeration Institute, 2111 Wilson Blvd., Suite 500, Arlington, VA 22201, (703) 524-8800, or go to: www.ahrinet.org.
(1) AHRI Standard 210/240-2023, (“AHRI 210/240-2023”), 2023 Standard for Performance Rating of Unitary Air-conditioning & Air-source Heat Pump Equipment, copyright 2020; IBR approved for § 429.67.
(2) AHRI Standard 390 (I-P)-2021, (“AHRI 390-2021”), 2021 Standard for Performance Rating of Single Package Vertical Air-conditioners And Heat Pumps, IBR approved for § 429.134.
(3) AHRI Standard 600-2023 (I-P) (“AHRI 600-2023”), 2023 Standard for Performance Rating of Water/Brine to Air Heat Pump Equipment, approved September 11, 2023; IBR approved for § 429.43.
(4) AHRI Standard 1230(I-P) (“AHRI 1230-2021”), 2021 Standard for Performance Rating of Variable Refrigerant Flow (VRF) Multi-Split Air-Conditioning and Heat Pump Equipment, copyright 2021; IBR approved for §§ 429.43; 429.134.
(5) AHRI Standard 1340-2023 (I-P) (“AHRI 1340-2023”), 2023 Standard for Performance Rating of Commercial and Industrial Unitary Air-conditioning and Heat Pump Equipment, approved November 16, 2023; IBR approved for §§ 429.43; 429.134.
(6) AHRI Standard 1360-2022 (I-P) (“AHRI 1360-2022”), 2022 Standard for Performance Rating of Computer and Data Processing Room Air Conditioners, copyright 2022; IBR approved for § 429.43.
(7) AHRI Standard 1500-2015, (“ANSI/AHRI Standard 1500-2015”), “2015 Standard for Performance Rating of Commercial Space Heating Boilers,” ANSI approved November 28, 2014: Figure C9, Suggested Piping Arrangement for Hot Water Boilers; IBR approved for § 429.60.
(d) ASHRAE. The American Society of Heating, Refrigerating and Air-Conditioning Engineers. 180 Technology Parkway NW, Peachtree Corners, GA 30092; (404) 636-8400, www.ashrae.org.
(1) ANSI/ASHRAE Standard 37-2009 (“ASHRAE 37-2009”), Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment, ASHRAE approved June 24, 2009; IBR approved for § 429.134.
(2) ANSI/ASHRAE 41.2-1987 (RA 92) (“ASHRAE 41.2-1987”), Standard Methods For Laboratory Airflow Measurement, ANSI reaffirmed April 22, 1992; IBR approved for § 429.134.
(e) HI. Hydraulic Institute, 6 Campus Drive, First Floor North, Parsippany, NJ 07054-4406, 973-267-9700. www.Pumps.org.
(1) HI 40.6-2014, (“HI 40.6-2014-B”), “Methods for Rotodynamic Pump Efficiency Testing,”, (except for sections 40.6.4.1 “Vertically suspended pumps”, 40.6.4.2 “Submersible pumps”,40.6.5.3 “Test report”, 40.6.5.5 “Test conditions”, 40.6.5.5.2 “Speed of rotation during testing”, and 40.6.6.1 “Translation of test results to rated speed of rotation”, and Appendix A “Testing arrangements (normative)”: A.7 “Testing at temperatures exceeding 30 °C (86 °F)”, and Appendix B “Reporting of test results (normative)”), copyright 2014, IBR approved for § 429.134.
(2) [Reserved]
(f) ISO. International Organization for Standardization, ch. de la Voie-Creuse CP 56 CH-1211 Geneva 20 Switzerland, telephone + 41 22 749 01 11, or go to www.iso.org/iso.
(1) International Organization for Standardization (ISO)/International Electrotechnical Commission, (“ISO/IEC 17025:2005(E)”), “General requirements for the competence of testing and calibration laboratories”, Second edition, May 15, 2005, IBR approved for § 429.110.
(2) [Reserved]
(g) NSF. NSF International. 789 N. Dixboro Road, Ann Arbor, MI 48105, (743) 769-8010. www.nsf.org.
(1) NSF/ANSI 50-2015, “Equipment for Swimming Pools, Spas, Hot Tubs and Other Recreational Water Facilities,” Annex C—“Test methods for the evaluation of centrifugal pumps,” Section C.3, “self-priming capability,” ANSI approved January 26, 2015, IBR approved for §§ 429.59 and 429.134.
(2) [Reserved]
(h) UL. Underwriters Laboratories, 333 Pfingsten Road, Northbrook, IL 60062; (841) 272-8800; www.ul.com.
(1) UL 1004-10 (“UL 1004-10:2022”), Standard for Safety for Pool Pump Motors, Revised First Edition, Dated March 24, 2022; IBR approved for § 429.134.
(2) [Reserved]
§ 429.5 Imported products.
(a) Any person importing any covered product or covered equipment into the United States shall comply with the provisions of this part, and parts 430 and 431, and is subject to the remedies of this part.
(b) Any covered product or covered equipment offered for importation in violation of this part, or part 430 or 431, shall be refused admission into the customs territory of the United States under rules issued by the U.S. Customs and Border Protection (CBP) and subject to further remedies as provided by law, except that CBP may, by such rules, authorize the importation of such covered product or covered equipment upon such terms and conditions (including the furnishing of a bond) as may appear to CBP appropriate to ensure that such covered product or covered equipment will not violate this part, or part 430 or 431, or will be exported or abandoned to the United States.
§ 429.6 Exported products.
This part, and parts 430 and 431, shall not apply to any covered product or covered equipment if:
(a) Such covered product or covered equipment is manufactured, sold, or held for sale for export from the United States or is imported for export;
(b) Such covered product or covered equipment or any container in which it is enclosed, when distributed in commerce, bears a stamp or label stating “NOT FOR SALE FOR USE IN THE UNITED STATES”; and
(c) Such product is, in fact, not distributed in commerce for use in the United States.
§ 429.7 Confidentiality.
(a) The following records are not exempt from public disclosure: Product or equipment type; product or equipment class; private labeler name; brand name; applicable model number(s) unless that information meets the criteria specified in paragraph (b) of this section; energy or water ratings submitted by manufacturers to DOE pursuant to § 429.12(b)(13); whether the certification was based on a test procedure waiver and the date of such waiver; and whether the certification was based on exception relief from the Office of Hearing and Appeals and the date of such relief.
(b) An individual, manufacturer model number is public information unless:
(1) The individual, manufacturer model number is a unique model number of a commercial packaged boiler, commercial water heating equipment, commercial HVAC equipment or commercial refrigeration equipment that was developed for an individual customer,
(2) The individual, manufacturer model number is not displayed on product literature, and
(3) Disclosure of the individual, manufacturer model number would reveal confidential business information as described at § 1004.11 of this title—in which case, under these limited circumstances, a manufacturer may identify the individual manufacturer model number as a private model number on a certification report submitted pursuant to § 429.12(b)(6).
(c) Pursuant to the provisions of 10 CFR 1004.11(e), any person submitting information or data which the person believes to be confidential and exempt by law from public disclosure should—at the time of submission—submit:
(1) One complete copy, and one copy from which the information believed to be confidential has been deleted.
(2) A request for confidentiality containing the submitter’s views on the reasons for withholding the information from disclosure, including:
(i) A description of the items sought to be withheld from public disclosure,
(ii) Whether and why such items are customarily treated as confidential within the industry,
(iii) Whether the information is generally known by or available from other sources,
(iv) Whether the information has previously been made available to others without obligation concerning its confidentiality,
(v) An explanation of the competitive injury to the submitting person which would result from public disclosure,
(vi) A date upon which such information might lose its confidential nature due to the passage of time, and
(vii) Why disclosure of the information would be contrary to the public interest.
(d) In accordance with the procedures established in 10 CFR 1004.11(e), DOE shall make its own determination with regard to any claim that information submitted be exempt from public disclosure.
§ 429.8 Subpoena.
For purposes of carrying out parts 429, 430, and 431, the General Counsel (or delegee), may sign and issue subpoenas for the attendance and testimony of witnesses and the production of relevant books, records, papers, and other documents, and administer oaths. Witnesses summoned under the provisions of this section shall be paid the same fees and mileage as are paid to witnesses in the courts of the United States. In case of contumacy by, or refusal to obey a subpoena served, upon any persons subject to parts 429, 430, or 431, the General Counsel (or delegee) may seek an order from the District Court of the United States for any District in which such person is found or resides or transacts business requiring such person to appear and give testimony, or to appear and produce documents. Failure to obey such order is punishable by such court as contempt thereof.
Subpart B—Certification
§ 429.10 Purpose and scope.
This subpart sets forth the procedures for manufacturers to certify that their covered products and covered equipment comply with the applicable energy conservation standards.
§ 429.11 General sampling requirements for selecting units to be tested.
(a) When testing of covered products or covered equipment is required to comply with section 323(c) of the Act, or to comply with rules prescribed under sections 324, 325, 342, 344, 345 or 346 of the Act, a sample comprised of production units (or units representative of production units) of the basic model being tested must be selected at random and tested and must meet the criteria found in §§ 429.14 through 429.69 and § 429.76. Components of similar design may be substituted without additional testing if the substitution does not affect energy or water consumption. Any represented values of measures of energy efficiency, water efficiency, energy consumption, or water consumption for all individual models represented by a given basic model must be the same, except for central air conditioners and central air conditioning heat pumps, as specified in § 429.16; and
(b) The minimum number of units tested shall be no less than two, except where:
(1) A different minimum limit is specified in §§ 429.14 through 429.69 and § 429.76; or
(2) Only one unit of the basic model is produced, in which case, that unit must be tested and the test results must demonstrate that the basic model performs at or better than the applicable standard(s). If one or more units of the basic model are manufactured subsequently, compliance with the default sampling and representations provisions is required.
§ 429.12 General requirements applicable to certification reports.
(a) Certification. Each manufacturer, before distributing in commerce any basic model of a covered product or covered equipment subject to an applicable energy conservation standard set forth in parts 430 or 431, and annually thereafter on or before the dates provided in paragraph (d) of this section, shall submit a certification report to DOE certifying that each basic model meets the applicable energy conservation standard(s). The certification report(s) must be submitted to DOE in accordance with the submission procedures of paragraph (h) of this section.
(b) Certification report. A certification report shall include a compliance statement (see paragraph (c) of this section), and for each basic model, the information listed in this paragraph (b).
(1) Product or equipment type;
(2) Product or equipment class (as denoted in the provisions of part 430 or 431 of this chapter containing the applicable energy conservation standard);
(3) Manufacturer’s name and address;
(4) Private labeler’s name(s) and address(es) (if applicable);
(5) Brand name;
(6) For each brand, the basic model number and the manufacturer’s individual model number(s) in that basic model with the following exceptions: For external power supplies that are certified based on design families, the design family model number and the individual manufacturer’s model numbers covered by that design family must be submitted for each brand. For distribution transformers, the basic model number or kVA grouping model number (depending on the certification method) for each brand must be submitted. For commercial HVAC, WH, and refrigeration equipment, an individual manufacturer model number may be identified as a “private model number” if it meets the requirements of § 429.7(b).
(7) Whether the submission is for a new model, a discontinued model, a correction to a previously submitted model, data on a carryover model, or a model that has been found in violation of a voluntary industry certification program;
(8) The test sample size as follows:
(i) The number of units tested for the basic model; or
(ii) In the case of single-split system or single-package central air conditioners and central air conditioning heat pumps; air-cooled, three-phase, small commercial package air conditioning and heating equipment with a cooling capacity of less than 65,000 Btu/h; air-cooled, three-phase, variable refrigerant flow multi-split air conditioners and heat pumps with a cooling capacity of less than 65,000 Btu/h; or multi-split, multi-circuit, or multi-head mini-split systems other than the “tested combination,” the number of units tested for each individual combination or individual model; or
(iii) If an AEDM was used in lieu of testing, enter “0” (and in the case of central air conditioners and central air conditioning heat pumps, this must be indicated separately for each metric);
(9) The certifying party’s U.S. Customs and Border Protection (CBP) importer identification numbers assigned by CBP pursuant to 19 CFR 24.5, if applicable;
(10) Whether certification is based upon any waiver of test procedure requirements under § 430.27 or § 431.401 of this chapter and the date(s) of such waiver(s);
(11) Whether certification is based upon any exception relief from an applicable energy conservation standard and the date such relief was issued by DOE’s Office of Hearings and Appeals;
(12) If the test sample size is listed as “0” to indicate the certification is based upon the use of an alternate way of determining measures of energy conservation, identify the method used for determining measures of energy conservation (such as “AEDM,” or linear interpolation). Manufacturers of commercial packaged boilers, commercial water heating equipment, commercial refrigeration equipment, commercial HVAC equipment, and central air conditioners and central air conditioning heat pumps must provide the manufacturer’s designation (name or other identifier) of the AEDM used; and
(13) Product specific information listed in §§ 429.14 through 429.63 of this chapter.
(c) Compliance statement. The compliance statement required by paragraph (b) of this section shall include the date, the name of the company official signing the statement, and his or her signature, title, address, telephone number, and facsimile number and shall certify that:
(1) The basic model(s) complies with the applicable energy conservation standard(s);
(2) All required testing has been conducted in conformance with the applicable test requirements prescribed in parts 429, 430 and 431, as appropriate, or in accordance with the terms of an applicable test procedure waiver;
(3) All information reported in the certification report is true, accurate, and complete; and
(4) The manufacturer is aware of the penalties associated with violations of the Act, the regulations thereunder, and 18 U.S.C. 1001 which prohibits knowingly making false statements to the Federal Government.
(d) Annual filing. All data required by paragraphs (a) through (c) of this section shall be submitted to DOE annually, on or before the following dates:
Table 1 to Paragraph (
| Product category | Deadline for data submission |
|---|---|
| Portable air conditioners | February 1. |
| Fluorescent lamp ballasts; Compact fluorescent lamps; General service fluorescent lamps, general service incandescent lamps, and incandescent reflector lamps; Candelabra base incandescent lamps and intermediate base incandescent lamps; Ceiling fans; Ceiling fan light kits; Showerheads; Faucets; Water closets; and Urinals | March 1. |
| Water heaters; Consumer furnaces; Pool heaters; Commercial water heating equipment; Commercial packaged boilers; Commercial warm air furnaces; Commercial unit heaters; and Furnace fans | May 1. |
| Dishwashers; Commercial pre-rinse spray valves; Illuminated exit signs; Traffic signal modules and pedestrian modules; and Distribution transformers | June 1. |
| Room air conditioners; Central air conditioners and central air conditioning heat pumps; and Commercial heating, ventilating, air conditioning (HVAC) equipment | July 1. |
| Consumer refrigerators, refrigerator-freezers, and freezers; Commercial refrigerators, freezers, and refrigerator-freezers; Automatic commercial ice makers; Refrigerated bottled or canned beverage vending machines; Walk-in coolers and walk-in freezers; and Consumer miscellaneous refrigeration products | August 1. |
| Torchieres; Dehumidifiers; Metal halide lamp ballasts and fixtures; External power supplies; Pumps; and Battery chargers | September 1. |
| Residential clothes washers; Residential clothes dryers; Direct heating equipment; Cooking products; and Commercial clothes washers | October 1. |
(e) New model filing. (1) In addition to the annual filing schedule in paragraph (d) of this section, any new basic models must be certified pursuant to paragraph (a) of this section before distribution in commerce. A modification to a model that increases the model’s energy or water consumption or decreases its efficiency resulting in re-rating must be certified as a new basic model pursuant to paragraph (a) of this section.
(2) For distribution transformers, the manufacturer shall submit all information required in paragraphs (b) and (c) of this section for the new basic model, unless the manufacturer has previously submitted to the Department a certification report for a basic model of distribution transformer that is in the same kVA grouping as the new basic model.
(f) Discontinued model filing. When production of a basic model has ceased and it is no longer being sold or offered for sale by the manufacturer or private labeler, the manufacturer must report this discontinued status to DOE as part of the next annual certification report following such cessation. For each basic model, the report must include the information specified in paragraphs (b)(1) through (7) of this section, except that for integrated light-emitting diode lamps and for compact fluorescent lamps, the manufacturer must submit a full certification report, including all of the information required by paragraph (b) of this section and the product-specific information required by § 429.56(b)(2) or § 429.35(b)(2), respectively.
(g) Third party submitters. A manufacturer may elect to use a third party to submit the certification report to DOE (for example, a trade association, independent test lab, or other authorized representative, including a private labeler acting as a third party submitter on behalf of a manufacturer); however, the manufacturer is responsible for submission of the certification report to DOE. DOE may refuse to accept certification reports from third party submitters who have failed to submit reports in accordance with the rules of this part. The third party submitter must complete the compliance statement as part of the certification report. Each manufacturer using a third party submitter must have an authorization form on file with DOE. The authorization form includes a compliance statement, specifies the third party authorized to submit certification reports on the manufacturer’s behalf and provides the contact information and signature of a company official.
(h) Method of submission. Reports required by this section must be submitted to DOE electronically at http://www.regulations.doe.gov/ccms (CCMS). A manufacturer or third party submitter can find product-specific templates for each covered product or covered equipment with certification requirements online at https://www.regulations.doe.gov/ccms/templates.html. Manufacturers and third party submitters must submit a registration form, signed by an officer of the company, in order to obtain access to CCMS.
(i) Compliance dates. For any product subject to an applicable energy conservation standard for which the compliance date has not yet occurred, a certification report must be submitted not later than the compliance date for the applicable energy conservation standard. The covered products enumerated below are subject to the stated compliance dates for initial certification:
(1) Commercial warm air furnaces, packaged terminal air conditioners, and packaged terminal heat pumps, July 1, 2014;
(2) Commercial gas-fired and oil-fired instantaneous water heaters less than 10 gallons and commercial gas-fired and oil-fired hot water supply boilers less than 10 gallons, October 1, 2014;
(3) All other types of covered commercial water heaters except those specified in paragraph (i)(2) of this section, commercial packaged boilers with input capacities less than or equal to 2.5 million Btu/h, and self-contained commercial refrigeration equipment with solid or transparent doors, December 31, 2014;
(4) Variable refrigerant flow air conditioners and heat pumps, March 31, 2015;
(5) Small, large, or very large air-cooled, water-cooled, evaporatively-cooled, and water-source commercial air conditioning and heating equipment, single package vertical units, computer room air conditioners, commercial packaged boilers with input capacities greater than 2.5 million Btu/h, and all other types of commercial refrigeration equipment except those specified in paragraph (i)(3) of this section, July 1, 2015.
§ 429.13 Testing requirements.
(a) The determination that a basic model complies with an applicable energy conservation standard shall be determined from the values derived pursuant to the applicable testing and sampling requirements set forth in parts 429, 430 and 431. The determination that a basic model complies with the applicable design standard shall be based upon the incorporation of specific design requirements in parts 430 and 431 or as specified in section 325 and 342 of the Act.
(b) Where DOE has determined a particular entity is in noncompliance with an applicable standard or certification requirement, DOE may impose additional testing requirements as a remedial measure.
§ 429.14 Consumer refrigerators, refrigerator-freezers and freezers.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to residential refrigerators, refrigerator-freezers and freezers; and
(2) For each basic model of residential refrigerators, refrigerator-freezers, and freezers, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of estimated annual operating cost, energy consumption, or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:
(ii) Any represented value of the energy factor or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:
(3) The value of total refrigerated volume of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the total refrigerated volumes measured for each tested unit of the basic model or the total refrigerated volume of the basic model as calculated in accordance with § 429.72(c). The value of adjusted total volume of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the adjusted total volumes measured for each tested unit of the basic model or the adjusted total volume of the basic model as calculated in accordance with § 429.72(c).
(b) Certification reports. (1) The requirements of § 429.12 are applicable to residential refrigerators, refrigerator-freezers and freezers; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The annual energy use in kilowatt hours per year (kWh/yr); the total refrigerated volume in cubic feet (ft
(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information: Whether the basic model has variable defrost control (in which case, manufacturers must also report the values, if any, of CT
(c) Rounding requirements for representative values, including certified and rated values. (1) The represented value of annual energy use must be rounded to the nearest kilowatt hour per year.
(2) The represented value of total refrigerated volume must be rounded to the nearest 0.1 cubic foot.
(3) The represented value of adjusted total volume must be rounded to the nearest 0.1 cubic foot.
(d) Product category determination. Each basic model shall be certified according to the appropriate product category as defined in § 430.2 of this chapter based on compartment volumes and compartment temperatures. If one or more compartments could be classified as both a fresh food compartment and a freezer compartment, the model must be certified to each applicable product category based on the operation of the compartment(s) as both fresh food and freezer compartments.
(1) Compartment volume used to determine product category shall be, for each compartment, the mean of the volumes of that specific compartment for the sample of tested units of the basic model, measured according to the provisions in section 4.1 of appendix A of subpart B of part 430 of this chapter for refrigerators and refrigerator-freezers and section 4.1 of appendix B of subpart B of part 430 of this chapter for freezers, or, for each compartment, the volume of that specific compartment calculated for the basic model in accordance with § 429.72(c).
(2) Determination of the compartment temperature ranges shall be based on operation under the conditions specified and using measurement of compartment temperature as specified in appendix A of subpart B of part 430 of this chapter for refrigerators and refrigerator-freezers and appendix B of subpart B of part 430 of this chapter for freezers. The determination of compartment status may require evaluation of a model at the extremes of the range of user-selectable temperature control settings. If the temperature ranges for the same compartment of multiple units of a sample are different, the maximum and minimum compartment temperatures for compartment status determination shall be based on the mean measurements for the units in the sample.
§ 429.15 Room air conditioners.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to room air conditioners; and
(2) For each basic model of room air conditioners, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 97
(ii) Any represented value of the combined energy efficiency ratio (CEER) (determined in § 430.23(f)(3) for each unit in the sample) or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 97
(3) The cooling capacity of a basic model is the mean of the measured cooling capacities for each tested unit of the basic model, as determined in § 430.23(f)(1) of this chapter. Round the cooling capacity value to the nearest hundred.
(4) The electrical power input of a basic model is the mean of the measured electrical power inputs for each tested unit of the basic model, as determined in § 430.23(f)(2) of this chapter. Round the electrical power input to the nearest ten.
(5) Round the value of CEER for a basic model to one decimal place.
(b) Certification reports. (1) The requirements of § 429.12 are applicable to room air conditioners; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The combined energy efficiency ratio in British thermal units per Watt-hour (Btu/Wh)), cooling capacity in British thermal units per hour (Btu/h), and the electrical power input in watts (W).
(3) Pursuant to § 429.12(b)(13), a certification report for a variable-speed room air conditioner basic model must include supplemental information and instructions in PDF format that include—
(i) The mean measured cooling capacity for the units tested at each additional test condition (i.e., respectively, the mean of Capacity
(ii) The mean electrical power input at each additional test condition (respectively, the mean of Power
(iii) All additional testing and testing set up instructions (e.g., specific operational or control codes or settings) necessary to operate the basic model under the required conditions specified by the relevant test procedure.
§ 429.16 Central air conditioners and central air conditioning heat pumps.
(a) Determination of Represented Value—(1) Required represented values. Determine the represented values (including SEER, EER, HSPF, SEER2, EER2, HSPF2, P
Table 1 to Paragraph (
| Category | Equipment subcategory | Required represented values |
|---|---|---|
| Single-Package Unit | Single-Package Air Conditioner (AC) (including space-constrained) | Every individual model distributed in commerce. |
| Single-Package Heat Pump (HP) (including space-constrained) | ||
| Outdoor Unit and Indoor Unit (Distributed in Commerce by Outdoor Unit Manufacturer (OUM)) | Single-Split-System AC with Single-Stage or Two-Stage Compressor (including Space-Constrained and Small-Duct, High Velocity Systems (SDHV)) | Every individual combination distributed in commerce. Each model of outdoor unit must include a represented value for at least one coil-only individual combination that is distributed in commerce and which is representative of the least efficient combination distributed in commerce with that particular model of outdoor unit. For that particular model of outdoor unit, additional represented values for coil-only and blower-coil individual combinations are allowed, if distributed in commerce. |
| Single-Split System AC with Other Than Single-Stage or Two-Stage Compressor (including Space-Constrained and SDHV) | Every individual combination distributed in commerce, including all coil-only and blower-coil combinations. | |
| Single-Split-System HP (including Space-Constrained and SDHV) | Every individual combination distributed in commerce. | |
| Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—non-SDHV (including Space-Constrained) | For each model of outdoor unit, at a minimum, a non-ducted “tested combination.” For any model of outdoor unit also sold with models of ducted indoor units, a ducted “tested combination.” When determining represented values on or after January 1, 2023, the ducted “tested combination” must comprise the highest static variety of ducted indoor unit distributed in commerce ( | |
| Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—SDHV | For each model of outdoor unit, an SDHV “tested combination.” Additional representations are allowed, as described in paragraph (c)(3)(iii) of this section. | |
| Indoor Unit Only Distributed in Commerce by Independent Coil Manufacturer (ICM) | Single-Split-System Air Conditioner (including Space-Constrained and SDHV) Single-Split-System Heat Pump (including Space-Constrained and SDHV) | Every individual combination distributed in commerce. |
| Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—SDHV | For a model of indoor unit within each basic model, an SDHV “tested combination.” Additional representations are allowed, as described in paragraph (c)(3)(iii) of this section. | |
| Outdoor Unit with no Match | Every model of outdoor unit distributed in commerce (tested with a model of coil-only indoor unit as specified in paragraph (b)(2)(i) of this section). | |
(2) P
(3) Refrigerants. (i) If a model of outdoor unit (used in a single-split, multi-split, multi-circuit, multi-head mini-split, and/or outdoor unit with no match system) is distributed in commerce and approved for use with multiple refrigerants, a manufacturer must determine all represented values for that model using each refrigerant that can be used in an individual combination of the basic model (including outdoor units with no match or “tested combinations”). This requirement may apply across the listed categories in the table in paragraph (a)(1) of this section. A refrigerant is considered approved for use if it is listed on the nameplate of the outdoor unit. If any of the refrigerants approved for use is HCFC-22 or has a 95 °F midpoint saturation absolute pressure that is ± 18 percent of the 95 °F saturation absolute pressure for HCFC-22, or if there are no refrigerants designated as approved for use, a manufacturer must determine represented values (including SEER, EER, HSPF, SEER2, EER2, HSPF2, P
(ii) If a model is approved for use with multiple refrigerants, a manufacturer may make multiple separate representations for the performance of that model (all within the same individual combination or outdoor unit with no match) using the multiple approved refrigerants. In the alternative, manufacturers may certify the model (all within the same individual combination or outdoor unit with no match) with a single representation, provided that the represented value is no more efficient than its performance using the least-efficient refrigerant. If a manufacturer certifies a single model with multiple representations for the different approved refrigerants, it may use an AEDM to determine the represented values for all other refrigerants besides the refrigerant used for testing. A single representation made for multiple refrigerants may not include equipment in multiple categories or equipment subcategories listed in the table in paragraph (a)(1) of this section.
(4) Limitations for represented values of individual combinations. The following paragraphs explains the limitations for represented values of individual combinations (or “tested combinations”).
(i) Regional. A basic model (model of outdoor unit) may only be certified as compliant with a regional standard if all individual combinations within that basic model meet the regional standard for which it is certified, including the coil-only combination as specified in paragraph (a)(1) of this section, as applicable. A model of outdoor unit that is certified below a regional standard can only be rated and certified as compliant with a regional standard if the model of outdoor unit has a unique model number and has been certified as a different basic model for distribution in each region, where the basic model(s) certified as compliant with a regional standard meet the requirements of the first sentence. An ICM cannot certify an individual combination with a rating that is compliant with a regional standard if the individual combination includes a model of outdoor unit that the OUM has certified with a rating that is not compliant with a regional standard. Conversely, an ICM cannot certify an individual combination with a rating that is not compliant with a regional standard if the individual combination includes a model of outdoor unit that an OUM has certified with a rating that is compliant with a regional standard.
(ii) Multiple product classes. Models of outdoor units that are rated and distributed in individual combinations that span multiple product classes must be tested, rated, and certified pursuant to paragraph (a) of this section as compliant with the applicable standard for each product class. This includes multi-split systems, multi-circuit systems, and multi-head mini-split systems with a represented value for a mixed combination including both SDHV and either non-ducted or ducted indoor units.
(5) Requirements. All represented values under paragraph (a) of this section must be based on testing in accordance with the requirements in paragraph (b) of this section or the application of an AEDM or other methodology as allowed in paragraph (c) of this section.
(b) Units tested—(1) General. The general requirements of § 429.11 apply to central air conditioners and heat pumps; and
(2) Individual model/combination selection for testing. (i) The table identifies the minimum testing requirements for each basic model that includes multiple individual models/combinations; if a basic model spans multiple categories or subcategories listed in the table, multiple testing requirements apply. For each basic model that includes only one individual model/combination, test that individual model/combination. For single-split-system non-space-constrained air conditioners and heat pumps, when testing is required in accordance with 10 CFR part 430, subpart B, appendix M1, these requirements do not apply until July 1, 2024, provided that the manufacturer is certifying compliance of all basic models using an AEDM in accordance with paragraph (c)(1)(i)(B) of this section and paragraph (e)(2)(i)(A) of § 429.70.
Table 2 to Paragraph (
| Category | Equipment subcategory | Must test: | With: |
|---|---|---|---|
| Single-Package Unit | Single-Package AC (including Space-Constrained) Single-Package HP (including Space-Constrained) | The individual model with the lowest seasonal energy efficiency ratio (SEER) (when testing in accordance with appendix M to subpart B of 10 CFR part 430) or SEER2 (when testing in accordance with appendix M1 to subpart B of 10 CFR part 430) | N/A. |
| Outdoor Unit and Indoor Unit (Distributed in Commerce by OUM) | Single-Split-System AC with Single-Stage or Two-Stage Compressor (including Space-Constrained and Small-Duct, High Velocity Systems (SDHV)) | The model of outdoor unit | A model of coil-only indoor unit. |
| Single-Split-System HP with Single-Stage or Two-Stage Compressor (including Space-Constrained and SDHV) | The model of outdoor unit | A model of indoor unit. | |
| Single-Split System AC or HP with Other Than Single-Stage or Two-Stage Compressor having a non-communicating coil-only individual combination (including Space-Constrained and SDHV) | The model of outdoor unit | A model of non-communicating coil-only indoor unit. | |
| Single-Split System AC or HP with Other Than Single-Stage or Two-Stage Compressor without a non-communicating coil-only individual combination (including Space-Constrained and SDHV) | The model of outdoor unit | A model of indoor unit. | |
| Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—non-SDHV (including Space-Constrained) | The model of outdoor unit | At a minimum, a “tested combination” composed entirely of non-ducted indoor units. For any models of outdoor units also sold with models of ducted indoor units, test a second “tested combination” composed entirely of ducted indoor units (in addition to the non-ducted combination). If testing under appendix M1 to subpart B of 10 CFR part 430, the ducted “tested combination” must comprise the highest static variety of ducted indoor unit distributed in commerce ( | |
| Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—SDHV | The model of outdoor unit | A “tested combination” composed entirely of SDHV indoor units. | |
| Indoor Unit Only (Distributed in Commerce by ICM) | Single-Split-System Air Conditioner (including Space-Constrained and SDHV) | A model of indoor unit | The least efficient model of outdoor unit with which it will be paired where the least efficient model of outdoor unit is the model of outdoor unit in the lowest SEER combination (when testing under appendix M to subpart B of 10 CFR part 430) or SEER2 combination (when testing under appendix M1 to subpart B of 10 CFR part 430) as certified by the OUM.
If there are multiple models of outdoor unit with the same lowest SEER (when testing under appendix M to subpart B of 10 CFR part 430) or SEER2 (when testing under appendix M1 to subpart B of 10 CFR part 430) represented value, the ICM may select one for testing purposes. |
| Single-Split-System Heat Pump (including Space-Constrained and SDHV) | Nothing, as long as an equivalent air conditioner basic model has been tested If an equivalent air conditioner basic model has not been tested, must test a model of indoor unit | ||
| Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—SDHV | A model of indoor unit | A “tested combination” composed entirely of SDHV indoor units, where the outdoor unit is the least efficient model of outdoor unit with which the SDHV indoor unit will be paired. The least efficient model of outdoor unit is the model of outdoor unit in the lowest SEER combination (when testing under appendix M to subpart B of 10 CFR part 430) or SEER2 combination (when testing under appendix M1 to subpart B of 10 CFR part 430) as certified by the OUM. If there are multiple models of outdoor unit with the same lowest SEER represented value (when testing under appendix M to subpart B of 10 CFR part 430) or SEER2 represented value (when testing under appendix M1 to subpart B of 10 CFR part 430), the ICM may select one for testing purposes. | |
| Outdoor Unit with No Match | The model of outdoor unit | A model of coil-only indoor unit meeting the requirements of section 2.2e of appendix M or M1 to subpart B of 10 CFR part 430. |
(ii) Each individual model/combination (or “tested combination”) identified in paragraph (b)(2)(i) of this section is not required to be tested for P
(3) Sampling plans and represented values. For individual models (for single-package systems) or individual combinations (for split-systems, including “tested combinations” for multi-split, multi-circuit, and multi-head mini-split systems) with represented values determined through testing, each individual model/combination (or “tested combination”) must have a sample of sufficient size tested in accordance with the applicable provisions of this subpart. For heat pumps (other than heating-only heat pumps), all units of the sample population must be tested in both the cooling and heating modes and the results used for determining all representations. The represented values for any individual model/combination must be assigned such that:
(i) Off-Mode. Any represented value of power consumption or other measure of energy consumption for which consumers would favor lower values must be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) The upper 90 percent confidence limit (UCL) of the true mean divided by 1.05, where:
(ii) SEER, EER, HSPF, SEER2, EER2, and HSPF2. Any represented value of the energy efficiency or other measure of energy consumption for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 90 percent confidence limit (LCL) of the true mean divided by 0.95, where:
(iii) Cooling Capacity and Heating Capacity. The represented values of cooling capacity and heating capacity must each be a self-declared value that is:
(A) Less than or equal to the lower of:
(1) The mean of the sample, where:
(2) The lower 90 percent confidence limit (LCL) of the true mean divided by 0.95, where:
(B) Rounded according to:
(1) To the nearest 100 Btu/h if cooling capacity or heating capacity is less than 20,000 Btu/h,
(2) To the nearest 200 Btu/h if cooling capacity or heating capacity is greater than or equal to 20,000 Btu/h but less than 38,000 Btu/h, and
(3) To the nearest 500 Btu/h if cooling capacity or heating capacity is greater than or equal to 38,000 Btu/h and less than 65,000 Btu/h.
(c) Determination of represented values for all other individual models/combinations besides those specified in paragraph (b)(2) of this section—(1) All basic models except outdoor units with no match and multi-split systems, multi-circuit systems, and multi-head mini-split systems. (i) For every individual model/combination within a basic model other than the individual model/combination required to be tested pursuant to paragraph (b)(2) of this section, either—
(A) A sample of sufficient size, comprised of production units or representing production units, must be tested as complete systems with the resulting represented values for the individual model/combination obtained in accordance with paragraphs (b)(1) and (3) of this section; or
(B) The represented values of the measures of energy efficiency or energy consumption through the application of an AEDM in accordance with paragraph (d) of this section and § 429.70. An AEDM may only be used to determine represented values for individual models or combinations in a basic model (or separate approved refrigerants within an individual combination) other than the individual model or combination(s) required for mandatory testing under paragraph (b)(2) of this section, except that, for single-split, non-space-constrained systems, when testing is required in accordance with 10 CFR part 430, subpart B, appendix M1, an AEDM may be used to rate the individual model or combination(s) required for mandatory testing under paragraph (b)(2) of this section until July 1, 2024, in accordance with paragraph (e)(2)(i)(A) of § 429.70.
(ii) For every individual model/combination within a basic model tested pursuant to paragraph (b)(2) of this section, but for which P
(A) The testing result from an individual model/combination of similar off-mode construction, or
(B) The application of an AEDM in accordance with paragraph (d) of this section and § 429.70.
(2) Outdoor units with no match. All models of outdoor units with no match within a basic model must be tested. No model of outdoor unit with no match may be rated with an AEDM, other than to determine the represented values for models using approved refrigerants other than the one used in testing.
(3) For multi-split systems, multi-circuit systems, and multi-head mini-split systems. The following applies:
(i) When testing in accordance with 10 CFR part 430, subpart B, appendix M1, for basic models that include additional varieties of ducted indoor units (i.e., conventional, low-static, or mid-static) other than the one for which representation is required in paragraph (a)(1) of this section, if a manufacturer chooses to make a representation, the manufacturer must conduct testing of a tested combination according to the requirements in paragraph (b)(3) of this section.
(ii) When testing in accordance with 10 CFR part 430, subpart B, appendix M, for basic models composed of both non-ducted and ducted combinations, the represented value for the mixed non-ducted/ducted combination is the mean of the represented values for the non-ducted and ducted combinations as determined in accordance with paragraph (b)(3) of this section. When testing in accordance with 10 CFR part 430, subpart B, appendix M1, for basic models that include mixed combinations of indoor units (any two kinds of non-ducted, low-static, mid-static, and conventional ducted indoor units), the represented value for the mixed combination is the mean of the represented values for the individual component combinations as determined in accordance with paragraph (b)(3) of this section.
(iii) When testing in accordance with 10 CFR part 430, subpart B, appendix M, for basic models composed of both SDHV and non-ducted or ducted combinations, the represented value for the mixed SDHV/non-ducted or SDHV/ducted combination is the mean of the represented values for the SDHV, non-ducted, or ducted combinations, as applicable, as determined in accordance with paragraph (b)(3) of this section. When testing in accordance with 10 CFR part 430, subpart B, appendix M1, for basic models including mixed combinations of SDHV and another kind of indoor unit (any of non-ducted, low-static, mid-static, and conventional ducted), the represented value for the mixed SDHV/other combination is the mean of the represented values for the SDHV and other tested combination as determined in accordance with paragraph (b)(3) of this section.
(iv) All other individual combinations of models of indoor units for the same model of outdoor unit for which the manufacturer chooses to make representations must be rated as separate basic models, and the provisions of paragraphs (b)(1) through (3) and (c)(3)(i) through (iii) of this section apply.
(v) With respect to P
(A) The testing result from an individual model or combination of similar off-mode construction, or
(B) Application of an AEDM in accordance with paragraph (d) of this section and § 429.70.
(d) Alternative efficiency determination methods. In lieu of testing, represented values of efficiency or consumption may be determined through the application of an AEDM pursuant to the requirements of § 429.70(e) and the provisions of this section.
(1) Power or energy consumption. Any represented value of the average off mode power consumption or other measure of energy consumption of an individual model/combination for which consumers would favor lower values must be greater than or equal to the output of the AEDM but no greater than the standard.
(2) Energy efficiency. Any represented value of the SEER, EER, HSPF, SEER2, EER2, HSPF2 or other measure of energy efficiency of an individual model/combination for which consumers would favor higher values must be less than or equal to the output of the AEDM but no less than the standard.
(3) Cooling capacity. The represented value of cooling capacity of an individual model/combination must be no greater than the cooling capacity output simulated by the AEDM.
(4) Heating capacity. The represented value of heating capacity of an individual model/combination must be no greater than the heating capacity output simulated by the AEDM.
(e) Certification reports. This paragraph specifies the information that must be included in a certification report.
(1) General. The requirements of § 429.12 apply to central air conditioners and heat pumps.
(2) Public product-specific information. Pursuant to § 429.12(b)(13), for each individual model (for single-package systems) or individual combination (for split-systems, including outdoor units with no match and “tested combinations” for multi-split, multi-circuit, and multi-head mini-split systems), a certification report must include the following public product-specific information: When certifying compliance with January 1, 2015, energy conservation standards, the seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/W-h)) or when certifying compliance with January 1, 2023, energy conservation standards, seasonal energy efficiency ratio 2 (SEER2 in British thermal units per Watt-hour (Btu/W-h)); the average off mode power consumption (P
(i) For heat pumps, when certifying compliance with January 1, 2015, energy conservation standards, the heating seasonal performance factor (HSPF in British thermal units per Watt-hour (Btu/W-h)) or, when certifying compliance with January 1, 2023, energy conservation standards, heating seasonal performance factor 2 (HSPF2 in British thermal units per Watt-hour (Btu/W-h));
(ii) For central air conditioners (excluding space-constrained products), when certifying compliance with January 1, 2015, energy conservation standards, the energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/W-h)) from the A or A
(iii) For single-split-systems, whether the represented value is for a coil-only or blower coil system;
(iv) For multi-split, multiple-circuit, and multi-head mini-split systems (including VRF and SDHV), when certifying compliance with January 1, 2015, energy conservation standards, whether the represented value is for a non-ducted, ducted, mixed non-ducted/ducted system, SDHV, mixed non-ducted/SDHV system, or mixed ducted/SDHV system;
(v) For all split systems including outdoor units with no match, the refrigerant.
(3) Basic and individual model numbers. The basic model number and individual model number(s) required to be reported under § 429.12(b)(6) must consist of the following:
| Equipment type | Basic model number | Individual model number(s) | ||
|---|---|---|---|---|
| 1 | 2 | 3 | ||
| Single-Package (including Space-Constrained) | Number unique to the basic model | Package | N/A | N/A. |
| Single-Split System (including Space-Constrained and SDHV) | Number unique to the basic model | Outdoor Unit | Indoor Unit | If applicable—Air Mover (could be same as indoor unit if fan is part of indoor unit model number). |
| Multi-Split, Multi-Circuit, and Multi-Head Mini-Split System (including Space-Constrained and SDHV) | Number unique to the basic model | Outdoor Unit | When certifying a basic model based on tested combination(s): * * * When certifying an individual combination: Indoor Unit(s) | If applicable—When certifying a basic model based on tested combination(s): * * *. When certifying an individual combination: Air Mover(s). |
| Outdoor Unit with No Match | Number unique to the basic model | Outdoor Unit | N/A | N/A. |
(4) Additional product-specific information. Pursuant to § 429.12(b)(13), for each individual model/combination (including outdoor units with no match and “tested combinations”), a certification report must include the following additional product-specific information: The cooling full load air volume rate for the system or for each indoor unit as applicable (in cubic feet per minute of standard air (scfm)); the air volume rates that represent normal operation for other test conditions including minimum cooling air volume rate, intermediate cooling air volume rate, full load heating air volume rate, minimum heating air volume rate, intermediate heating air volume rate, and nominal heating air volume rate (scfm) for the system or for each indoor unit as applicable, if different from the cooling full load air volume rate; whether the individual model uses a fixed orifice, thermostatic expansion valve, electronic expansion valve, or other type of metering device; the duration of the compressor break-in period, if used; whether the optional tests were conducted to determine the C
(i) For heat pumps, whether the optional tests were conducted to determine the C
(ii) For multi-split, multiple-circuit, and multi-head mini-split systems, the number of indoor units tested with the outdoor unit; the nominal cooling capacity of each indoor unit and outdoor unit in the combination; and the indoor units that are not providing heating or cooling for part-load tests;
(iii) For ducted systems having multiple indoor fans within a single indoor unit, the number of indoor fans; the nominal cooling capacity of the indoor unit and outdoor unit; which fan(s) operate to attain the full-load air volume rate when controls limit the simultaneous operation of all fans within the single indoor unit; and the allocation of the full-load air volume rate to each operational fan when different capacity blowers are connected to the common duct;
(iv) For blower coil systems, the airflow-control settings associated with full load cooling operation; and the airflow-control settings or alternative instructions for setting fan speed to the speed upon which the rating is based;
(v) For models with time-adaptive defrost control, the frosting interval to be used during Frost Accumulation tests and the procedure for manually initiating the defrost at the specified time;
(vi) For models of indoor units designed for both horizontal and vertical installation or for both up-flow and down-flow vertical installations, the orientation used for testing;
(vii) For variable-speed models, the compressor frequency set points, and the required dip switch/control settings for step or variable components;
(viii) For variable-speed heat pumps, whether the H1
(ix) For models of outdoor units with no match, the following characteristics of the indoor coil: The face area, the coil depth in the direction of airflow, the fin density (fins per inch), the fin material, the fin style, the tube diameter, the tube material, and the numbers of tubes high and deep; and
(x) For central air conditioners and heat pumps that have two-capacity compressors that lock out low capacity operation for cooling at higher outdoor temperatures and/or heating at lower outdoor temperatures, the outdoor temperature(s) at which the unit locks out low capacity operation.
(f) Represented values for the Federal Trade Commission. Use the following represented value determinations to meet the requirements of the Federal Trade Commission.
(1) Annual Operating Cost—Cooling. Determine the represented value of estimated annual operating cost for cooling-only units or the cooling portion of the estimated annual operating cost for air-source heat pumps that provide both heating and cooling by calculating the product of:
(i) The value determined in paragraph (f)(1)(i)(A) of this section if using appendix M to subpart B of part 430 or the value determined in paragraph (f)(1)(i)(B) of this section if using appendix M1 to subpart B of part 430;
(A) The quotient of the represented value of cooling capacity, in Btu’s per hour as determined in paragraph (b)(3)(iii) of this section, divided by the represented value of SEER, in Btu’s per watt-hour, as determined in paragraph (b)(3)(ii) of this section;
(B) The quotient of the represented value of cooling capacity, in Btu’s per hour as determined in paragraph (b)(3)(iii) of this section, and multiplied by 0.93 for variable-speed heat pumps only, divided by the represented value of SEER2, in Btu’s per watt-hour, as determined in paragraph (b)(3)(ii) of this section.
(ii) The representative average use cycle for cooling of 1,000 hours per year;
(iii) A conversion factor of 0.001 kilowatt per watt; and
(iv) The representative average unit cost of electricity in dollars per kilowatt-hour as provided pursuant to section 323(b)(2) of the Act.
(2) Annual Operating Cost—Heating. Determine the represented value of estimated annual operating cost for air-source heat pumps that provide only heating or for the heating portion of the estimated annual operating cost for air-source heat pumps that provide both heating and cooling, as follows:
(i) When using appendix M to subpart B of part 430, the product of:
(A) The quotient of the mean of the standardized design heating requirement for the sample, in Btu’s per hour, nearest to the Region IV minimum design heating requirement, determined for each unit in the sample in section 4.2 of appendix M to subpart B of part 430, divided by the represented value of heating seasonal performance factor (HSPF), in Btu’s per watt-hour, calculated for Region IV corresponding to the above-mentioned standardized design heating requirement, as determined in paragraph (b)(3)(ii) of this section;
(B) The representative average use cycle for heating of 2,080 hours per year;
(C) The adjustment factor of 0.77, which serves to adjust the calculated design heating requirement and heating load hours to the actual load experienced by a heating system;
(D) A conversion factor of 0.001 kilowatt per watt; and
(E) The representative average unit cost of electricity in dollars per kilowatt-hour as provided pursuant to section 323(b)(2) of the Act;
(ii) When using appendix M1 to subpart B of part 430, the product of:
(A) The quotient of the represented value of cooling capacity (for air-source heat pumps that provide both cooling and heating) in Btu’s per hour, as determined in paragraph (b)(3)(iii) of this section, or the represented value of heating capacity (for air-source heat pumps that provide only heating), as determined in paragraph (b)(3)(i)(D) of this section, divided by the represented value of heating seasonal performance factor 2 (HSPF2), in Btu’s per watt-hour, calculated for Region IV, as determined in paragraph (b)(3)(ii) of this section;
(B) The representative average use cycle for heating of 1,572 hours per year;
(C) The adjustment factor of 1.15 (for heat pumps that are not variable-speed) or 1.07 (for heat pumps that are variable-speed), which serves to adjust the calculated design heating requirement and heating load hours to the actual load experienced by a heating system;
(D) A conversion factor of 0.001 kilowatt per watt; and
(E) The representative average unit cost of electricity in dollars per kilowatt-hour as provided pursuant to section 323(b)(2) of the Act;
(3) Annual Operating Cost—Total. Determine the represented value of estimated annual operating cost for air-source heat pumps that provide both heating and cooling by calculating the sum of the quantity determined in paragraph (f)(1) of this section added to the quantity determined in paragraph (f)(2) of this section.
(4) Regional Annual Operating Cost—Cooling. Determine the represented value of estimated regional annual operating cost for cooling-only units or the cooling portion of the estimated regional annual operating cost for air-source heat pumps that provide both heating and cooling by calculating the product of:
(i) The value determined in paragraph (f)(4)(i)(A) of this section if using appendix M to subpart B of part 430 or the value determined in paragraph (f)(4)(i)(B) of this section if using appendix M1 to subpart B of part 430;
(A) The quotient of the represented value of cooling capacity, in Btu’s per hour as determined in paragraph (b)(3)(iii) of this section, divided by the represented value of SEER, in Btu’s per watt-hour, as determined in paragraph (b)(3)(ii) of this section;
(B) The quotient of the represented value of cooling capacity, in Btu’s per hour as determined in paragraph (b)(3)(iii) of this section, and multiplied by 0.93 for variable-speed heat pumps only, divided by the represented value of SEER2, in Btu’s per watt-hour, as determined in paragraph (b)(3)(ii) of this section;
(ii) The value determined in paragraph (f)(4)(ii)(A) of this section if using appendix M to subpart B of part 430 or the value determined in paragraph (f)(4)(ii)(B) of this section if using appendix M1 to subpart B of part 430;
(A) The estimated number of regional cooling load hours per year determined from Table 22 in section 4.4 of appendix M to subpart B of part 430;
(B) The estimated number of regional cooling load hours per year determined from Table 21 in section 4.4 of appendix M1 to subpart B of part 430;
(iii) A conversion factor of 0.001 kilowatts per watt; and
(iv) The representative average unit cost of electricity in dollars per kilowatt-hour as provided pursuant to section 323(b)(2) of the Act.
(5) Regional Annual Operating Cost—Heating. Determine the represented value of estimated regional annual operating cost for air-source heat pumps that provide only heating or for the heating portion of the estimated regional annual operating cost for air-source heat pumps that provide both heating and cooling as follows:
(i) When using appendix M to subpart B of part 430, the product of:
(A) The estimated number of regional heating load hours per year determined from Table 22 in section 4.4 of appendix M to subpart B of part 430;
(B) The quotient of the mean of the standardized design heating requirement for the sample, in Btu’s per hour, for the appropriate generalized climatic region of interest (i.e., corresponding to the regional heating load hours from “A”) and determined for each unit in the sample in section 4.2 of appendix M to subpart B of part 430, divided by the represented value of HSPF, in Btu’s per watt-hour, calculated for the appropriate generalized climatic region of interest and corresponding to the above-mentioned standardized design heating requirement, and determined in paragraph (b)(3)(ii);
(C) The adjustment factor of 0.77; which serves to adjust the calculated design heating requirement and heating load hours to the actual load experienced by a heating system;
(D) A conversion factor of 0.001 kilowatts per watt; and
(E) The representative average unit cost of electricity in dollars per kilowatt-hour as provided pursuant to section 323(b)(2) of the Act.
(ii) When using appendix M1 to subpart B of part 430, the product of:
(A) The estimated number of regional heating load hours per year determined from Table 21 in section 4.4 of appendix M1 to subpart B of part 430;
(B) The quotient of the represented value of cooling capacity (for air-source heat pumps that provide both cooling and heating) in Btu’s per hour, as determined in paragraph (b)(3)(i)(C) of this section, or the represented value of heating capacity (for air-source heat pumps that provide only heating), as determined in paragraph (b)(3)(i)(D) of this section, divided by the represented value of HSPF2, in Btu’s per watt-hour, calculated for the appropriate generalized climatic region of interest, and determined in paragraph (b)(3)(i)(B) of this section;
(C) The adjustment factor of 1.15 (for heat pumps that are not variable-speed) or 1.07 (for heat pumps that are variable-speed), which serves to adjust the calculated design heating requirement and heating load hours to the actual load experienced by a heating system;
(D) A conversion factor of 0.001 kilowatts per watt; and
(E) The representative average unit cost of electricity in dollars per kilowatt-hour as provided pursuant to section 323(b)(2) of the Act.
(6) Regional Annual Operating Cost—Total. For air-source heat pumps that provide both heating and cooling, the estimated regional annual operating cost is the sum of the quantity determined in paragraph (f)(4) of this section added to the quantity determined in paragraph (f)(5) of this section.
(7) Annual Operating Cost—Rounding. Round any represented values of estimated annual operating cost determined in paragraphs (f)(1) through (6) of this section to the nearest dollar per year.
§ 429.17 Water heaters.
Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.17 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.
(a) Determination of represented value. (1) Manufacturers must determine the represented value for each water heater by applying an AEDM in accordance with 10 CFR 429.70 or by testing for the uniform energy factor, in conjunction with the applicable sampling provisions as follows:
(i) If the represented value is determined through testing, the general requirements of 10 CFR 429.11 are applicable; and
(ii) For each basic model selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—
(A) Any represented value of the estimated annual operating cost or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(1) The mean of the sample, where:
(2) The upper 95-percent confidence limit (UCL) of the true mean divided by 1.10, where:
And x
(B) Any represented value of the uniform energy factor, or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(1) The mean of the sample, where:
(2) The lower 95-percent confidence limit (LCL) of the true mean divided by 0.90, where:
And x
(C) Any represented value of the rated storage volume must be equal to the mean of the measured storage volumes of all the units within the sample. Any represented value of the effective storage volume must be equal to the mean of the effective storage volumes of all the units within the sample.
(D) Any represented value of first-hour rating or maximum gallons per minute (GPM) must be equal to the mean of the measured first-hour ratings or measured maximum GPM ratings, respectively, of all the units within the sample.
(E) For an electric storage water heater that has a permanent mode or setting in which it is capable of heating and storing water above 135 °F, where permanent mode or setting means a mode of operation that is continuous and does not require any external consumer intervention to maintain for longer than 120 hours, except for those that meet the definition of “heat pump-type” water heater at § 430.2 of this chapter, whose rated storage volumes are less than 20 gallons or greater than 55 gallons, or that are only capable of heating the stored water above 135 °F in response to instructions received from a utility or third-party demand-response program, the following applies:
(1) To demonstrate compliance with the energy conservation standards in § 430.32(d)(1) of this chapter, any represented value of uniform energy factor shall be determined based on testing in accordance with section 5.1.1 of appendix E to subpart B of 10 CFR part 430.
(2) To demonstrate compliance with the energy conservation standards in § 430.32(d)(2) of this chapter, any represented value of uniform energy factor shall be determined based on high temperature testing in accordance with section 5.1.2 of appendix E to subpart B of 10 CFR part 430.
(b) Certification reports. (1) The requirements of 10 CFR 429.12 are applicable to water heaters; and
(2) Pursuant to 10 CFR 429.12(b)(13), a certification report shall include the following public, product-specific information:
(i) For storage-type water heater basic models: The uniform energy factor (UEF, rounded to the nearest 0.01), the rated storage volume in gallons (rounded to the nearest 1 gal), the first-hour rating in gallons (gal, rounded to the nearest 1 gal), and the recovery efficiency in percent (%, rounded to the nearest 1%);
(ii) For instantaneous-type water heater basic models: The uniform energy factor (UEF, rounded to the nearest 0.01), the rated storage volume in gallons (gal, rounded to the nearest 1 gal), the maximum gallons per minute (gpm, rounded to the nearest 0.1 gpm), and the recovery efficiency in percent (%, rounded to the nearest 1%); and
(iii) For grid-enabled water heater basic models: The uniform energy factor (UEF, rounded to the nearest 0.01), the rated storage volume in gallons (gal, rounded to the nearest 1 gal), the first-hour rating in gallons (gal, rounded to the nearest 1 gal), the recovery efficiency in percent (%, rounded to the nearest 1%), a declaration that the model is a grid-enabled water heater, whether it is equipped at the point of manufacture with an activation lock, and whether it bears a permanent label applied by the manufacturer that advises purchasers and end-users of the intended and appropriate use of the product.
(c) Reporting of annual shipments for grid-enabled water heaters. Pursuant to 42 U.S.C. 6295(e)(6)(C)(i), manufacturers of grid-enabled water heaters must report the total number of grid-enabled water heater units shipped for sale in the U.S. by the manufacturer for the previous calendar year (i.e., January 1st through December 31st), as well as the calendar year that the shipments cover, starting on or before May 1, 2023, and annually on or before May 1 each year thereafter. This information shall be reported separately from the certification report required under paragraph (b)(2) of this section, and must be submitted to DOE in accordance with the submission procedures set forth in § 429.12(h). DOE will consider the annual reported shipments to be confidential business information without the need for the manufacturer to request confidential treatment of the information pursuant to § 429.7(c).
§ 429.18 Consumer furnaces.
Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.18 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to residential furnaces; and
(2)(i) For each basic model of furnaces, other than basic models of those sectional cast-iron boilers (which may be aggregated into groups having identical intermediate sections and combustion chambers) a sample of sufficient size shall be randomly selected and tested to ensure that—
(A) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(1) The mean of the sample, where:
Or,
(2) The upper 97
and
(B) Any represented value of the annual fuel utilization efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(1) The mean of the sample, where:
Or,
(2) The lower 97
(ii) For the lowest capacity basic model of a group of basic models of those sectional cast-iron boilers having identical intermediate sections and combustion chambers, a sample of sufficient size shall be randomly selected and tested to ensure that—
(A) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(1) The mean of the sample, where:
Or,
(2) The upper 97
(B) Any represented value of the fuel utilization efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(1) The mean of the sample, where:
Or,
(2) The lower 97
(iii) For the highest capacity basic model of a group of basic models of those sectional cast-iron boilers having identical intermediate sections and combustion chambers, a sample of sufficient size shall be randomly selected and tested to ensure that—
(A) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(1) The mean of the sample, where:
Or,
(2) The upper 97
(B) Any represented value of the fuel utilization efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(1) The mean of the sample, where:
Or,
(2) The lower 97
(iv) For each basic model or capacity other than the highest or lowest of the group of basic models of sectional cast-iron boilers having identical intermediate sections and combustion chambers, represented values of measures of energy consumption shall be determined by either—
(A) A linear interpolation of data obtained for the smallest and largest capacity units of the family, or
(B) Testing a sample of sufficient size to ensure that:
(1) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(i) The mean of the sample, where:
Or,
(ii) The upper 97
(2) Any represented value of the energy factor or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(i) The mean of the sample, where:
Or,
(ii) The lower 97
(v) Whenever measures of energy consumption determined by linear interpolation do not agree with measures of energy consumption determined by actual testing, the values determined by testing must be used for certification.
(vi) In calculating the measures of energy consumption for each unit tested, use the design heating requirement corresponding to the mean of the capacities of the units of the sample.
(vii) The represented value of annual fuel utilization efficiency must be rounded to the nearest one-tenth of a percentage point. The represented values of standby mode power and off mode power must be rounded to the nearest one-tenth of a watt.
(b) Certification reports. (1) The requirements of § 429.12 are applicable to residential furnaces; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) For consumer furnaces and boilers: The annual fuel utilization efficiency (AFUE) in percent (%) and the input capacity in British thermal units per hour (Btu/h).
(ii) For non-weatherized oil-fired furnaces (including mobile home furnaces), electric furnaces, and boilers: The standby mode power consumption (P
(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information:
(i) For cast-iron sectional boilers: A declaration of whether certification is based on linear interpolation or testing.
(ii) For gas-fired hot water boilers and gas-fired steam boilers: A declaration that the manufacturer has not incorporated a constant-burning pilot.
(iii) For gas-fired hot water boilers, oil-fired hot water boilers, and electric hot water boilers: Whether the boiler is equipped with tankless domestic water heating coils, and if not, a declaration that the manufacturer has incorporated an automatic means for adjusting water temperature).
(4) For multi-position furnaces, the annual fuel utilization efficiency (AFUE) reported for each basic model must be based on testing in the least efficient configuration. Manufacturers may also report and make representations of additional AFUE values based on testing in other configurations.
§ 429.19 Dishwashers.
Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.19 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to dishwashers; and
(2) For each basic model of dishwashers, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of estimated annual operating cost, energy or water consumption or other measure of energy or water consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
Or,
(B) The upper 97
(ii) Any represented value of the energy or water factor or other measure of energy or water consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
Or,
(B) The lower 97
(b) Certification reports. (1) The requirements of § 429.12 are applicable to dishwashers; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The estimated annual energy use in kilowatt hours per year (kWh/yr), the water consumption in gallons per cycle, and the capacity in number of place settings as specified in ANSI/AHAM DW-1-2010 (incorporated by reference, see § 429.4).
(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information:
(i) The presence of a soil sensor, and if yes, the number of cycles required to reach calibration;
(ii) The water inlet temperature used for testing in degrees Fahrenheit ( °F);
(iii) The cycle selected for the energy test and whether that cycle is soil-sensing;
(iv) The options selected for the energy test;
(v) Presence of a built-in water softening system, and if yes, the energy use in kilowatt-hours and the water use in gallons required for each regeneration of the water softening system, the number of regeneration cycles per year, and data and calculations used to derive these values; and
(vi) Indication of whether Cascade Complete Powder or Cascade with the Grease Fighting Power of Dawn was used as the detergent formulation. When certifying dishwashers, other than water re-use dishwashers, according to appendix C1 to subpart B of part 430 of this chapter:
(A) Before July 17, 2023, Cascade Complete Powder detergent may be used as the basis for certification in conjunction with the detergent dosing methods specified in either section 2.5.2.1.1 or section 2.5.2.1.2 of appendix C1 to subpart B of part 430. Cascade with the Grease Fighting Power of Dawn detergent may be used as the basis for certification only in conjunction with the detergent dosing specified in section 2.5.2.1.1 of appendix C1.
(B) Beginning July 17, 2023, Cascade Complete Powder detergent may be used as the basis for certification of newly certified basic models only in conjunction with the detergent dosing method specified in section 2.5.2.1.2 of appendix C1 to subpart B of part 430. Cascade with the Grease Fighting Power of Dawn detergent may be used as the basis for certification only in conjunction with the detergent dosing specified in section 2.5.2.1.1 of appendix C1. Manufacturers may maintain existing basic model certifications made prior to July 17, 2023, consistent with the provisions of paragraph (b)(3)(vi)(A) of this chapter.
§ 429.20 Residential clothes washers.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to residential clothes washers; and
(2) For each basic model of residential clothes washers, a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of the integrated water factor, the estimated annual operating cost, the energy or water consumption, or other measure of energy or water consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
Or,
(B) The upper 97
(ii) Any represented value of the integrated modified energy factor, energy efficiency ratio, water efficiency ratio, or other measure of energy or water consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
Or,
(B) The lower 97
(3) The clothes container capacity of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the measured clothes container capacity, C, of all tested units of the basic model.
(4) The remaining moisture content (RMC) of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the final RMC value measured for all tested units of the basic model.
(b) Certification reports. (1) The requirements of § 429.12 are applicable to residential clothes washers; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) For residential clothes washers tested in accordance with Appendix J1: The modified energy factor (MEF) in cubic feet per kilowatt hour per cycle (cu ft/kWh/cycle), the capacity in cubic feet (cu ft), the corrected remaining moisture content (RMC) expressed as a percentage, and, for standard-size residential clothes washers, a water factor (WF) in gallons per cycle per cubic foot (gal/cycle/cu ft).
(ii) For residential clothes washers tested in accordance with Appendix J2: The integrated modified energy factor (IMEF) in cu ft/kWh/cycle, the integrated water factor (IWF) in gal/cycle/cu ft, the capacity in cu ft, the corrected remaining moisture content (RMC) expressed as a percentage, and the type of loading (top-loading or front-loading).
(3) Pursuant to § 429.12(b)(13), a certification report must include the following additional product-specific information: A list of all cycle selections comprising the complete energy test cycle for each basic model.
(c) Reported values. Values reported pursuant to this subsection must be rounded as follows: MEF and IMEF to the nearest 0.01 cu ft/kWh/cycle, WF and IWF to the nearest 0.1 gal/cycle/cu ft, RMC to the nearest 0.1 percentage point, and clothes container capacity to the nearest 0.1 cu ft.
§ 429.21 Residential clothes dryers.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to clothes dryers; and
(2) For each basic model of clothes dryers a sample of sufficient size shall be randomly selected and tested to ensure that—
(i) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
Or,
(B) The upper 97
(ii) Any represented value of the energy factor, combined energy factor, or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(A) The mean of the sample, where:
Or,
(B) The lower 97
(3) The capacity of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the capacities measured for each tested unit of the basic model.
(b) Certification reports. (1) The requirements of § 429.12 are applicable to clothes dryers; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: When using appendix D1 to subpart B of part 430 of this chapter, the combined energy factor in pounds per kilowatt hours (lb/kWh), the capacity in cubic feet (cu ft), the voltage in volts (V) (for electric dryers only), an indication if the dryer has automatic termination controls, and the hourly Btu rating of the burner (for gas dryers only); when using appendix D2 to subpart B of part 430, the combined energy factor in pounds per kilowatt hours (lb/kWh), the capacity in cubic feet (cu ft), the voltage in volts (V) (for electric dryers only), an indication if the dryer has automatic termination controls, the hourly Btu rating of the burner (for gas dryers only), and a list of the cycle setting selections for the energy test cycle as recorded in section 3.4.7 of appendix D2 to subpart B of part 430.
(c) Reported values. Values reported pursuant to this section must be rounded as follows: CEF to the nearest 0.01 lb/kWh, capacity to the nearest 0.1 cu ft, voltage to the nearest V, and hourly Btu rating to the nearest Btu.
§ 429.22 Direct heating equipment.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to direct heating equipment; and
(2) (i) For each basic model of direct heating equipment (not including furnaces) a sample of sufficient size shall be randomly selected and tested to ensure that—
(A) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(1) The mean of the sample, where:
Or,
(2) The upper 97
(B) Any represented value of the fuel utilization efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(1) The mean of the sample, where:
Or,
(2) The lower 97
(ii) In calculating the measures of energy consumption for each unit tested, use the design heating requirement corresponding to the mean of the capacities of the units of the sample.
(b) Certification reports. (1) The requirements of § 429.12 are applicable to direct heating equipment; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: Direct heating equipment, the annual fuel utilization efficiency (AFUE) in percent (%), the mean input capacity in British thermal units per hour (Btu/h), and the mean output capacity in British thermal units per hour (Btu/h).
§ 429.23 Cooking products.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to cooking products; and
(2) For each basic model of cooking products a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of estimated annual operating cost, standby mode power consumption, off mode power consumption, annual energy consumption, integrated annual energy consumption, or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(i) The mean of the sample, where:
Or,
(ii) The upper 97
(b) Certification reports. (1) The requirements of § 429.12 are applicable to conventional cooking tops, conventional ovens and microwave ovens; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: For conventional cooking tops and conventional ovens: the type of pilot light and a declaration that the manufacturer has incorporated the applicable design requirements. For microwave ovens, the average standby power in watts.
§ 429.24 Pool heaters.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to pool heaters; and
(2) For each basic model of pool heater a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of the thermal efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:
(i) The mean of the sample, where:
Or,
(ii) The lower 97
(b) Certification reports. (1) The requirements of § 429.12 are applicable to pool heaters; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The thermal efficiency in percent (%) and the input capacity in British thermal units per hour (Btu/h).
§ 429.25 Television sets.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to televisions; and
(2) For each basic model of television, samples shall be randomly selected and tested to ensure that—
(i) Any represented value of power consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
(B) For on mode power consumption, the upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:
(C) For standby mode power consumption and power consumption measurements in modes other than on mode, the upper 90 percent confidence limit (UCL) of the true mean divided by 1.10, where:
(ii) Any represented annual energy consumption of a basic model shall be determined by applying the AEC calculation in section 4 of appendix H to subpart B of part 430 of this chapter to the represented values of power consumption as calculated pursuant to paragraph (a)(2)(i) of this section.
(iii) Rounding requirements. The represented value of power consumption and the represented annual energy consumption shall be rounded as follows:
(A) For power consumption in the on and standby modes, the represented value shall be rounded according to the requirements specified in sections 4.1 and 4.3 of appendix H to subpart B of part 430 of this chapter.
(B) For annual energy consumption, the represented value shall be rounded according to the requirements specified in section 3.4 of appendix H to subpart B of part 430 of this chapter.
(b) [Reserved]
§ 429.26 Fluorescent lamp ballasts.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to fluorescent lamp ballasts; and
(2) For each basic model of fluorescent lamp ballasts, a sample of sufficient size, not less than four, shall be randomly selected and tested to ensure that—
(i) Any represented value of the energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:
(A) The mean of the sample, where:
Or,
(B) The upper 99 percent confidence limit (UCL) of the true mean divided by 1.01, where:
(ii) Any represented value of the ballast luminous efficiency, power factor, or other measure of the energy efficiency or energy consumption of a basic model for which consumers would favor a higher value must be less than or equal to the lower of:
(A) The mean of the sample, where:
(B) The lower 99 percent confidence limit (LCL) of the true mean divided by 0.99, where:
(iii) The represented value of average total lamp arc power must be equal to the mean of the sample,
x
n is the number of units in the sample; and
x
(b) Certification reports. (1) The requirements of § 429.12 are applicable to fluorescent lamp ballasts; and
(2) Pursuant to § 429.12(b)(13), a certification report must include the following public product-specific information: The ballast luminous efficiency, the average total lamp arc power, the power factor, the number of lamps operated by the ballast, and the type of lamps operated by the ballast (i.e., wattage, base, shape, diameter, and length).
(c) Rounding requirements. (1) Round ballast luminous efficiency to the nearest thousandths place.
(2) Round power factor to the nearest hundredths place.
(3) Round average total lamp arc power to the nearest tenth of a watt.
§ 429.27 General service fluorescent lamps.
Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.27 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.
(a) Determination of Represented Value. Each manufacturer must determine represented values, which include certified ratings, for each basic model by testing, in accordance with the following sampling provisions.
(1) Units to be tested.
(i) When testing, use a sample comprised of production units. The same sample of units must be tested and used as the basis for representations for rated wattage, average lamp efficacy, color rendering index (CRI), and correlated color temperature (CCT).
(ii) For each basic model, randomly select and test a sample of sufficient size, but not less than 10 units, to ensure that represented values of average lamp efficacy are less than or equal to the lower of:
(A) The arithmetic mean of the sample: or,
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by .97, where:
(2) Any represented values of measures of energy efficiency or energy consumption for all individual models represented by a given basic model must be the same.
(3) Represented values of CCT, CRI and rated wattage must be equal to the arithmetic mean of the sample.
(b) Certification reports. (1) The requirements of § 429.12 apply to general service fluorescent lamps; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The testing laboratory’s ILAC accreditation body’s identification number or other approved identification assigned by the ILAC accreditation body, average lamp efficacy in lumens per watt (lm/W), rated wattage in watts (W), CCT in Kelvin (K), and CRI.
(c) Rounding Requirements. (1) Round rated wattage to the nearest tenth of a watt.
(2) Round average lamp efficacy to the nearest tenth of a lumen per watt.
(3) Round CCT to the nearest 100 kelvin (K).
(4) Round CRI to the nearest whole number.
§ 429.28 Faucets.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to faucets; and
(2) For each basic model of faucet, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of water consumption of a basic model for which consumers favor lower values shall be no less than the higher of the higher of:
(i) The mean of the sample, where:
Or,
(ii) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:
(b) Certification reports. (1) The requirements of § 429.12 are applicable to faucets; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: For non-metering faucets, the maximum water use in gallons per minute (gpm) rounded to the nearest 0.1 gallon; for metering faucets, the maximum water use in gallons per cycle (gal/cycle) rounded to the nearest 0.01 gallon; and for all faucet types, the flow water pressure in pounds per square inch (psi).
§ 429.29 Showerheads.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to showerheads; and
(2) For each basic model of a showerhead, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of water consumption of a basic model for which consumers favor lower values shall be greater than or equal to the higher of:
(i) The mean of the sample, where:
Or,
(ii) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:
(b) Certification reports. (1) The requirements of § 429.12 are applicable to showerheads; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum water use in gallons per minute (gpm) rounded to the nearest 0.1 gallon, the maximum flow water pressure in pounds per square inch (psi), and a declaration that the showerhead meets the requirements of § 430.32(p) pertaining to mechanical retention of the flow-restricting insert, if applicable.
§ 429.30 Water closets.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to water closets; and
(2) For each basic model of water closet, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of water consumption of a basic model for which consumers favor lower values shall be greater than or equal to the higher of:
(i) The mean of the sample, where:
Or,
(ii) The upper 90 percent confidence limit (UCL) of the true mean divided by 1.1, where:
(b) Certification reports. (1) The requirements of § 429.12 are applicable to water closets; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum water use in gallons per flush (gpf), rounded to the nearest 0.01 gallon. For dual-flush water closets, the maximum water use to be reported is the flush volume observed when tested in the full-flush mode.
§ 429.31 Urinals.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to urinals; and
(2) For each basic model of urinal, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of water consumption of a basic model for which consumers favor lower values shall be greater than or equal to the higher of:
(i) The mean of the sample, where:
Or,
(ii) The upper 90 percent confidence limit (UCL) of the true mean divided by 1.1, where:
(b) Certification reports. (1) The requirements of § 429.12 are applicable to urinals; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum water use in gallons per flush (gpf), rounded to the nearest 0.01 gallon, and for trough-type urinals, the maximum flow rate in gallons per minute (gpm), rounded to the nearest 0.01 gallon, and the length of the trough in inches (in).
§ 429.32 Ceiling fans.
Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.32 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.
(a) Determination of represented value. Manufacturers must determine the represented value, which includes the certified rating, for each basic model of ceiling fan by testing, in conjunction with the following sampling provisions:
(1) The requirements of § 429.11 are applicable to ceiling fans; and
(2) For each basic model of ceiling fan, a sample of sufficient size must be randomly selected and tested to ensure that—
(i) Any represented value of the efficiency or airflow is less than or equal to the lower of:
(A) The mean of the sample, where:
And x
(B) The lower 90 percent confidence limit (LCL) of the true mean divided by 0.9, where:
And x
(ii) Any represented value of the wattage is greater than or equal to the higher of:
(A) The mean of the sample, where:
And x
(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.1, where:
And x
(3) For each basic model of ceiling fan,
(i) Any represented value of blade span, as defined in section 1.4 of appendix U to subpart B of part 430, is the mean of the blade spans measured for the sample selected as described in paragraph (a)(1) of this section, rounded to the nearest inch;
(ii) Any represented value of blade revolutions per minute (RPM) is the mean of the blade RPM measurements measured for the sample selected as described in paragraph (a)(1) of this section, rounded to the nearest RPM;
(iii) Any represented value of blade edge thickness is the mean of the blade edge thicknesses measured for the sample selected as described in paragraph (a)(1) of this section, rounded to the nearest 0.01 inch;
(iv) Any represented value of the distance between the ceiling and the lowest point on the fan blades is the mean of the distances measured for the sample selected as described in paragraph (a)(1) of this section, rounded to the nearest quarter of an inch;
(v) Any represented value of tip speed is pi multiplied by represented value of blade span divided by twelve multiplied by the represented value of RPM, rounded to the nearest foot per minute; and
(vi) Any represented value of airflow (CFM) at high speed, including the value used to determine whether a ceiling fan is a highly-decorative ceiling fan as defined in section 1.10 of appendix U to subpart B of part 430, is determined pursuant to paragraph (a)(2)(i) and rounded to the nearest CFM.
(4) To determine representative values of airflow, energy use, and estimated yearly energy cost of an LSSD or VSD ceiling fan basic model, use the following provisions.
(i) Airflow. Determine the represented value for airflow by calculating the weighted-average airflow of an LSSD or VSD ceiling fan basic model at low and high fan speed as follows:
(ii) Energy Use. Determine represented value for energy use by calculating the weighted-average power consumption of an LSSD or VSD ceiling fan basic model at low and high fan speed as follows:
(iii) Estimated Yearly Energy Cost. Determine the represented value for estimated yearly energy cost of an LSSD or VSD ceiling fan basic model at low and high fan speed as follows:
(b) Certification reports. (1) The requirements of § 429.12 are applicable to ceiling fans; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) For all ceiling fans: Blade span (in), and the number of speed control settings.
(ii) For small-diameter ceiling fans: A declaration of whether the ceiling fan is a multi-head ceiling fan, and the ceiling fan efficiency (CFM/W).
(iii) For large-diameter ceiling fans: Ceiling fan energy index (CFEI) for high speed, and 40 percent speed or the nearest speed that is not less than 40 percent speed.
(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information:
(i) For all ceiling fans: A declaration that the manufacturer has incorporated the applicable design requirements.
(ii) For small-diameter ceiling fans: Standby power, blade edge thickness (in), airflow (CFM) at high speed, and blade revolutions per minute (RPM) at high speed.
(iii) For low-speed small-diameter ceiling fans: The distance (in) between the ceiling and the lowest point on the fan blades (in both hugger and standard configurations for multi-mount fans).
(c) Rounding requirements. Any represented value of ceiling fan efficiency, as described in paragraph (a)(2)(i) of this section, must be expressed in cubic feet per minute per watt (CFM/W) and rounded to the nearest whole number. Any represented value of ceiling fan energy index, as described in paragraph (a)(2)(i) of this section, must be expressed in CFEI and rounded to the nearest hundredth.
§ 429.33 Ceiling fan light kits.
Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.33 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.
(a) Determination of represented value. Manufacturers must determine represented values, which includes certified ratings, for each basic model of ceiling fan light kit in accordance with following sampling provisions.
(1) The requirements of § 429.11 are applicable to ceiling fan light kits, and
(2) For each basic model of ceiling fan light kit, the following sample size requirements are applicable to demonstrate compliance with the January 1, 2007 energy conservation standards:
(i) For ceiling fan light kits with medium screw base sockets that are packaged with compact fluorescent lamps, determine the represented values of each basic model of lamp packaged with the ceiling fan light kit in accordance with § 429.35.
(ii) For ceiling fan light kits with medium screw base sockets that are packaged with integrated light-emitting diode lamps, determine the represented values of each basic model of lamp packaged with the ceiling fan light kit in accordance with § 429.56.
(iii) For ceiling fan light kits with pin-based sockets that are packaged with fluorescent lamps, determine the represented values of each basic model of lamp packaged with the ceiling fan light kit in accordance with the sampling requirements in § 429.35.
(iv) For ceiling fan light kits with medium screw base sockets that are packaged with incandescent lamps, determine the represented values of each basic model of lamp packaged with the ceiling fan light kit in accordance with § 429.40, § 429.55 or § 429.66, as applicable.
(v) For ceiling fan light kits with sockets or packaged with lamps other than those described in paragraphs (a)(2)(i), (ii), (iii), or (iv) of this section, each unit must comply with the applicable design standard in § 430.32(s)(5) of this chapter.
(3) For ceiling fan light kits that require compliance with the January 21, 2020 energy conservation standards:
(i) Determine the represented values of each basic model of lamp packaged with each basic model of ceiling fan light kit, in accordance with the specified section:
(A) For compact fluorescent lamps, § 429.35;
(B) For general service fluorescent lamps, § 429.27;
(C) For incandescent lamps, § 429.40, § 429.55 or § 429.66, as applicable;
(D) For integrated LED lamps, § 429.56.
(E) For other fluorescent lamps (not compact fluorescent lamps or general service fluorescent lamps), § 429.35; and
(F) For consumer-replaceable SSL (not integrated LED lamps) and other SSL lamps that have an ANSI standard base and are not integrated LED lamps, § 429.56.
(ii) Determine the represented value of each basic model of non-consumer-replaceable SSL that is incorporated into each basic model of ceiling fan light kit by randomly selecting a sample of sufficient size and testing to ensure that any represented value of the energy efficiency of the integrated SSL circuitry basic model is less than or equal to the lower of:
(A) The mean of the sample, where:
and, x
(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:
And x
(b) Certification reports. (1) The requirements of § 429.12 are applicable to ceiling fan light kits; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:
(i) For ceiling fan light kits manufactured prior to January 21, 2020:
(A) For ceiling fan light kits with sockets for medium screw base lamps: The rated wattage in watts (W) and the system’s efficacy in lumens per watt (lm/W).
(B) For ceiling fan light kits with pin-based sockets for fluorescent lamps: The rated wattage in watts (W), the system’s efficacy in lumens per watt (lm/W), and the length of the lamp in inches (in).
(C) For ceiling fan light kits with any other socket type: The rated wattage in watts (W) and the number of individual sockets.
(ii) For ceiling fan light kits manufactured on or after January 21, 2020:
(A) For each basic model of lamp and/or each basic model of non-consumer-replaceable SSL packaged with the ceiling fan light kit, the brand, basic model number, test sample size, kind of lamp (i.e., general service fluorescent lamp (GSFL); fluorescent lamp with a pin base that is not a GSFL; compact fluorescent lamp (CFL) with a medium screw base; CFL with a base that is not medium screw base [e.g., candelabra base]; other fluorescent lamp [not GSFL or CFL]; general service incandescent lamp (GSIL); candelabra base incandescent lamp; intermediate base incandescent lamp; incandescent reflector lamp; other incandescent lamp [not GSIL, IRL, candelabra base or intermediate base incandescent lamp]; integrated LED lamp; non-consumer-replaceable SSL; consumer-replaceable SSL [not integrated LED lamps] and other SSL lamps that have an ANSI standard base and are not integrated LED lamps; other lamp not specified), lumen output in lumens (lm), and efficacy in lumens per watt (lm/W).
(B) For each lamp basic model identified in paragraph (b)(2)(ii)(A) of this section that is a compact fluorescent lamp with a medium screw base, the lumen maintenance at 40 percent of lifetime in percent (%) (and whether the value is estimated), the lumen maintenance at 1,000 hours in percent (%), the lifetime in hours (h) (and whether the value is estimated), and the sample size for rapid cycle stress testing and results in number of units passed (and whether the value is estimated). Estimates of lifetime, lumen maintenance at 40 percent of lifetime, and rapid cycle stress test surviving units may be reported until testing is complete. Manufacturers are required to maintain records of the development of all estimated values and any associated initial test data in accordance with § 429.71.
(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information:
(i) For ceiling fan light kits with any other socket type manufactured prior to January 21, 2020, a declaration that the basic model meets the applicable design requirement, and the features that have been incorporated into the ceiling fan light kit to meet the applicable design requirement (e.g., circuit breaker, fuse, ballast).
(ii) For ceiling fan light kits manufactured on or after January 21, 2020:
(A) A declaration that the ceiling fan light kit is packaged with lamps sufficient to fill all of the lamp sockets;
(B) For each basic model of lamp and/or each basic model of non-consumer-replaceable SSL packaged with the ceiling fan light kit, a declaration that, where applicable, the lamp basic model was tested by a laboratory accredited as required under § 430.25 of this chapter; and
(C) For ceiling fan light kits with pin-based sockets for fluorescent lamps, a declaration that each ballast for such lamps is an electronic ballast.
(c) Rounding requirements. (1) Any represented value of efficacy of ceiling fan light kits as described in paragraph (a) of this section must be expressed in lumens per watt and rounded to the nearest tenth of a lumen per watt.
(2) Round lumen output to three significant digits.
(3) Round lumen maintenance at 1,000 hours to the nearest tenth of a percent.
(4) Round lumen maintenance at 40 percent of lifetime to the nearest tenth of a percent.
(5) Round lifetime to the nearest whole hour.
§ 429.34 Torchieres.
(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to torchieres; and
(2) Reserved
(b) Certification reports. (1) The requirements of § 429.12 are applicable to torchieres; and
(2) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information: A declaration that the basic model meets the applicable design requirement and the features that have been incorporated into the torchiere to meet the applicable design requirement (e.g., circuit breaker, fuse, ballast).