10 CFR 430.55Evaluation of application.
The Secretary shall grant an application for exemption submitted
under this subpart if the Secretary finds, after obtaining the written
views of the Attorney General, that a failure to allow an exemption
would likely result in a lessening of competition.
10 CFR 430.56Decision and order.
(a) Upon consideration of the application and other relevant
information received or obtained, the Secretary shall issue an order
granting or denying the application.
(b) The order shall include a written statement setting forth the
relevant facts and the legal basis of the order.
(c) The Secretary shall serve a copy of the order upon the applicant
and upon any other person readily identifiable by the Secretary as one
who is interested in or aggrieved by such order. The Secretary also
shall publish in the Federal Register a notice of the grant or denial of
the order and the reason therefor.
10 CFR 430.57Duration of temporary exemption.
A temporary exemption terminates according to its terms but not later
than twenty-four months after the affective date of the rule for which
the exemption is allowed.
10 CFR 430.57 Subpart F -- Certification and Enforcement
Source: 54 FR 6081, Feb. 7, 1989, unless otherwise noted.
10 CFR 430.60Purpose and scope.
The regulations in this subpart set forth the procedures to be
followed for certification and enforcement testing to determine whether
a basic model of a covered product complies with the applicable energy
conservation standard set forth in Subpart C of this Part. Energy
conservation standards include minimum levels of efficiency and maximum
levels of consumption (also referred to as performance standards) and
prescriptive energy design requirements (also referred to as design
standards).
10 CFR 430.61Prohibited acts.
(a) Each of the following is a prohibited act pursuant to section 332
of the Act:
(1) Failure to permit access to, or copying of records required to be
supplied under the Act and this rule or failure to make reports or
provide other information required to be supplied under this Act and
this rule;
(2) Failure of a manufacturer to supply at his expense a reasonable
number of covered products to a test laboratory designated by the
Secretary;
(3) Failure of a manufacturer to permit a representative designated
by the Secretary to observe any testing required by the Act and this
rule and inspect the results of such testing; and
(4) Distribution in commerce by a manufacturer or private labeler of
any new covered product which is not in compliance with an applicable
energy efficiency standard prescribed under the Act and this rule.
(b) In accordance with section 333 of the Act, any person who
knowingly violates any provision of paragraph (a) of this section may be
subject to assessment of a civil penalty of no more than $100 for each
violation. Each violation of paragraph (a) of this section shall
constitute a separate violation with respect to each covered product,
and each day of noncompliance with paragraphs (a) (1) through (3) of
this section shall constitute a separate violation.
10 CFR 430.62 Submission of data.
(a) Compliance statement and certification report. Each manufacturer
or private labeler before distributing in commerce any basic model of a
covered product subject to the applicable energy conservation standard
set forth in Subpart C of this Part shall certify by means of a
statement of compliance and certification report, that each basic model
meets the requirements of that standard.
(1) The compliance statement shall certify that:
(i) The basic model(s) comply with the applicable energy conservation
standards;
(ii) All required testing on which the compliance statement is based
was conducted in conformance with the applicable test requirements
prescribed in 10 CFR Part 430 Subpart B and this subpart and all test
data are reported in accordance with this subpart;
(iii) All information reported in the compliance statement is true,
accurate, and complete; and
(iv) The manufacturer (private labeler) is aware of the penalties
associated with violations of the Act and the regulations thereunder,
and 18 U.S.C. 1001 which prohibits knowingly making false statements to
the Federal Government. The format for a compliance statement is set
forth in Appendix A of this subpart.
(2) For each basic model the certification report shall include the
annual energy use and adjusted volume (for refrigerators,
refrigerator-freezers and freezers), energy factor and rated storage
volume (for water heaters), the energy efficiency ratio (for room air
conditioners), seasonal energy efficiency ratio and heating seasonal
performance factor (for central air conditioners and central air
conditioning heat pumps), thermal efficiency (for pool heaters), and
annual fuel utilization efficiency (for furnaces and direct heating
equipment) the model numbers for each basic model; and its capacity.
(3) Copies of reports to the Federal Trade Commission which include
the information in paragraph (a)(2) of this section meet the
requirements of this paragraph.
(b) Initial reporting requirements.
All data required by paragraph (a) of this section shall be submitted
on or before the effective date of the applicable energy conservation
standard as prescribed in section 325 of the Act. For each basic model
of a covered product to be distributed in commerce, each manufacturer
and private labeler or his representative shall file a compliance
statement and certification report, by certified mail, to Department of
Energy, Appliance Efficiency Standards, Assistant Secretary for
Conservation and Renewable Energy, Forrestal Building, 1000 Independence
Avenue, SW., Washington, DC 20585.
(c) New models. All information required by paragraph (a)(2) of this
section must be submitted for new models prior to or concurrent with any
distribution of such model. Any change to a basic model which affects
energy consumption may constitute the addition of a new basic model
subject to the requirements of 430.61 of this part. If such change
does not alter compliance with the applicable energy conservation
standard for the basic model, the new model shall be considered
certified. Models which are discontinued shall be reported, in writing,
to the Department of Energy.
(d) Maintenance of records. (1) The manufacturer of any covered
product subject to any of the energy performance standards or procedures
prescribed in this part, shall establish, maintain, and retain the
records of the underlying test data for all certification testing. Such
records shall be organized and indexed in a fashion which makes them
readily accessible for review. The records should include the
supporting test data associated with tests performed on any test units
to satisfy the requirements of this subpart (except tests performed by
DOE directly).
(2) All such records shall be retained by the manufacturer for a
period of two years from the date that production of the applicable
model has ceased. Records shall be retained in a form allowing ready
access to DOE upon request.
(e) Third party representation. If a manufacturer or private labeler
elects to use a third party, e.g., trade association or other authorized
representative, to submit the certification report, the certification
report shall include all the information identified in paragraph (a) of
this section, including the compliance statement.
10 CFR 430.63 Sampling.
(a) For purposes of a certification of compliance, the determination
that a basic model complies with the applicable energy performance
standard shall be based upon the sampling procedures set forth in
430.23 of this Part. For purposes of a certification of compliance, the
determination that a basic model complies with the applicable design
standard shall be based upon the incorporation of specific design
requirements for clothes dryers, dishwashers, clothes washers and
kitchen ranges and ovens specified in section 325 of the Act.
(b) A basic model which meets the following requirements may qualify
as an ''other than tested model'' for purposes of the certification
testing and sampling requirements:
(1) Central air conditioners: The condenser-evaporator coil
combinations manufactured by the condensing unit manufacturer other than
the combination likely to have the largest volume of retail sales or the
condenser-coil combinations manufactured in part by a component
manufacturer using the same condensing unit.
(2) For purposes of certification of ''other than tested models,'' as
defined in paragraph (b)(1) of this section, a manufacturer may certify
the basic model on the basis of computer simulation or engineering
analysis as set forth in 430.23(m) of this Part.
10 CFR 430.64 Imported products.
(a) Pursuant to section 331 of the Act, any person importing any
covered product into the United States shall comply with the provisions
of the Act and of this Part, and is subject to the remedies of this
Part.
(b) Any covered product offered for importation in violation of the
Act and of this Part shall be refused admission into the customs
territory of the United States under rules issued by the Secretary of
the Treasury, except that the Secretary of the Treasury may, by such
rules, authorize the importation of such covered product upon such terms
and conditions (including the furnishing of a bond) as may appear to the
Secretary of Treasury appropriate to ensure that such covered product
will not violate the Act and this Part, or will be exported or abandoned
to the United States.
10 CFR 430.65 Exported products.
Pursuant to section 330 of the Act, this part shall not apply to any
covered product if (a) such covered product is manufactured, sold, or
held for sale for export from the United States (or such product was
imported for export), unless such product is, in fact, distributed in
commerce for use in the United States, and (b) such covered product,
when distributed in commerce, or any container in which it is enclosed
when so distributed, bears a stamp or label stating that such covered
product is intended for export.
10 CFR 430.70 Enforcement.
(a) Performance standard -- (1) Test notice. Upon receiving
information in writing, concerning the energy performance of a
particular covered product sold by a particular manufacturer or private
labeler which indicates that the covered product may not be in
compliance with the applicable energy performance standard, the
Secretary may conduct testing of that covered product under this subpart
by means of a test notice addressed to the manufacturer in accordance
with the following requirements:
(i) Such a procedure will only be followed after the Secretary or his
designated representative has examined the underlying test data provided
by the manufacturer and after the manufacturer has been offered the
opportunity to meet with DOE to verify compliance with the applicable
performance standard. A representative designated by the Secretary
shall be permitted to observe any reverification procedures by this
subpart, and to inspect the results of such reverification.
(ii) The test notice will be signed by the Secretary or his designee.
The test notice will be mailed or delivered by DOE to the plant manager
or other responsible official, as designated by the manufacturer.
(iii) The test notice will specify the model or basic model to be
selected for testing, the method of selecting the test sample, the time
at which testing shall be initiated, the date by which testing is
scheduled to be completed and the facility at which testing will be
conducted. The test notice may also provide for situations in which the
selected basic model is unavailable for testing, and may include
alternative basic models.
(iv) The Secretary may require in the test notice that the
manufacturer of a covered product shall ship at his expense a reasonable
number of units of a basic model specified in such test notice to a
testing laboratory designated by the Secretary. The number of units of
a basic model specified in a test notice shall not exceed twenty (20).
(v) Within 5 working days of the time units are selected, the
manufacturer shall ship the specified test units of a basic model to the
testing laboratory.
(2) Testing Laboratory. Whenever DOE conducts enforcement testing at
a designated laboratory in accordance with a test notice under this
section, the resulting test data shall constitute official test data for
that basic model. Such test data will be used by DOE to make a
determination of compliance or noncompliance if a sufficient number of
tests have been conducted to satisfy the requirements of Appendix B of
this subpart.
(3) Sampling. The determination that a manufacturer's basic model
complies with the applicable energy performance standard shall be based
on the testing conducted in accordance with the statistical sampling
procedures set forth in Appendix B of this subpart and the test
procedures set forth in Subpart B of this Part.
(4) Test unit selection. A DOE inspector shall select a batch, a
batch sample, and test units from the batch sample in accordance with
the provisions of this paragraph and the conditions specified in the
test notice.
(i) The batch may be subdivided by DOE utilizing criteria specified
in the test notice, e.g., date of manufacture, component-supplier,
location of manufacturing facility, or other criteria which may
differentiate one unit from another within a basic model.
(ii) A batch sample of up to 20 units will then be randomly selected
from one or more subdivided groups within the batch. The manufacturer
shall keep on hand all units in the batch sample until such time as the
basic model is determined to be in compliance or noncompliance.
(iii) Individual test units comprising the test sample shall be
randomly selected from the batch sample.
(iv) All random selection shall be achieved by sequentially numbering
all of the units in a batch sample and then using a table of random
numbers to select the units to be tested.
(5) Test unit preparation. (i) Prior to and during testing, a test
unit selected in accordance with paragraph (a)(4) of this section shall
not be prepared, modified, or adjusted in any manner unless such
preparation, modification, or adjustment is allowed by the applicable
DOE test procedure. One test shall be conducted for each test unit in
accordance with the applicable test procedures prescribed in Subpart B.
(ii) No quality control, testing or assembly procedures shall be
performed on a test unit, or any parts and subassemblies thereof, that
is not performed during the production and assembly of all other units
included in the basic model.
(iii) A test unit shall be considered defective if such unit is
inoperative or is found to be in noncompliance due to failure of the
unit to operate according to the manufacturer's design and operating
instructions. Defective units, including those damaged due to shipping
or handling, shall be reported immediately to DOE. DOE shall authorize
testing of an additional unit on a case-by-case basis.
(6) Testing at manufacturer's option. (i) If a manufacturer's basic
model is determined to be in noncompliance with the applicable energy
performance standard at the conclusion of DOE testing in accordance with
the double sampling plan specified in Appendix B of this subpart, the
manufacturer may request that DOE conduct additional testing of the
model according to procedures set forth in Appendix B of this subpart.
(ii) All units tested under paragraph (a)(6) of this section shall be
selected and tested in accordance with the provisions given in
paragraphs (a) (1) through (5) of this section.
(iii) The manufacturer shall bear the cost of all testing conducted
under paragraph (a)(6) of this section.
(iv) The manufacturer shall cease distribution of the basic model
being tested under the provisions of paragraph (a)(6) of this section
from the time the manufacturer elects to exercise the option provided in
this paragraph until the basic model is determined to be in compliance.
DOE may seek civil penalties for all units distributed during such
period.
(v) If the additional testing results in a determination of
compliance, a notice of allowance to resume distribution shall be issued
by the Department.
(b) Design standard. In the case of a design standard, a model is
determined noncompliant by DOE after the Secretary or his designated
representative has examined the underlying design information provided
by the manufacturer and after the manufacturer has been offered the
opportunity to verify compliance with the applicable design standard.
10 CFR 430.71Cessation of distribution of a basic model.
(a) In the event that a model is determined noncompliant by DOE in
accordance with 430.70 of this Part or if a manufacturer or private
labeler determines a model to be in noncompliance, then the manufacturer
or private labeler shall:
(1) Immediately cease distribution in commerce of the basic model;
(2) Give immediate written notification of the determination of
noncompliance, to all persons to whom the manufacturer has distributed
units of the basic model manufactured since the date of the last
determination of compliance.
(3) Pursuant to a request made by the Secretary, provide DOE within
30 days of the request, records, reports and other documentation
pertaining to the acquisition, ordering, storage, shipment, or sale of a
basic model determined to be in noncompliance.
(4) The manufacturer may modify the noncompliant basic model in such
manner as to make it comply with the applicable performance standard.
Such modified basic model shall then be treated as a new basic model and
must be certified in accordance with the provisions of this subpart;
except that in addition satisfying all requirements of this subpart, the
manufacturer shall also maintain records that demonstrate that
modifications have been made to all units of the new basic model prior
to distribution in commerce.
(b) If a basic model is not properly certified in accordance with the
requirements of this subpart, the Secretary may seek, among other
remedies, injunctive action to prohibit distribution in commerce of such
basic model.
10 CFR 430.72Subpoena.
Pursuant to section 329(a) of the Act, for purposes of carrying out
this part, the Secretary or the Secretary's designee, 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 the oaths. Witnesses summoned under the provisions of th is
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 this Part, the
Secretary 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 a contempt thereof.
10 CFR 430.73Remedies.
If DOE determines that a basic model of a covered product does not
comply with an applicable energy conservation standard:
(a) DOE will notify the manufacturer, private labeler or any other
person as required, of this finding and of the Secretary's intent to
seek a judicial order restraining further distribution in commerce of
such basic model unless the manufacturer, private labeler or any other
person as required, delivers to DOE within 15 calendar days a statement,
satisfactory to DOE, of the steps he will take to insure that the
noncompliant model will no longer be distributed in commerce. DOE will
monitor the implementation of such statement.
(b) If the manufacturer, private labeler or any other person as
required, fails to stop distribution of the noncompliant model, the
Secretary may seek to restrain such violation in accordance with section
334 of the Act.
(c) The Secretary shall determine whether the facts of the case
warrant the assessment of civil penalties for knowing violations in
accordance with section 333 of the Act.
10 CFR 430.74Hearings and appeals.
(a) Pursuant to section 333(d) of the Act, before issuing an order
assessing a civil penalty against any person under this section, the
Secretary shall provide to such person notice of the proposed penalty.
Such notice shall inform such person of that person's opportunity to
elect in writing within 30 days after the date of receipt of such notice
to have the procedures of paragraph (c) of this section (in lieu of
those in paragraph (b) of this section) apply with respect to such
assessment.
(b)(1) Unless an election is made within 30 calendar days after
receipt of notice under paragraph (a) of this section to have paragraph
(c) of this section apply with respect to such penalty, the Secretary
shall assess the penalty, by order, after a determination of violation
has been made on the record after an opportunity for an agency hearing
pursuant to section 554 of Title 5, United States Code, before an
administrative law judge appointed under section 3105 of such Title 5.
Such assessment order shall include the administrative law judge's
findings and the basis for such assessment.
(2) Any person against whom a penalty is assessed under this section
may, within 60 calendar days after the date of the order of the
Secretary assessing such penalty, institute an action in the United
States Court of Appeals for the appropriate judicial circuit for
judicial review of such order in accordance with Chapter 7 of Title 5,
United States Code. The court shall have jurisdiction to enter a
judgment affirming, modifying, or setting aside in whole or in part, the
order of the Secretary, or the court may remand the proceeding to the
Secretary for such further action as the court may direct.
(c)(1) In the case of any civil penalty with respect to which the
procedures of this section have been elected, the Secretary shall
promptly assess such penalty, by order, after the date of the receipt of
the notice under paragraph (a) of this section of the proposed penalty.
(2) If the civil penalty has not been paid within 60 calendar days
after the assessment has been made under paragraph (c)(1) of this
section, the Secretary shall institute an action in the appropriate
District Court of the United States for an order affirming the
assessment of the civil penalty. The court shall have authority to
review de novo the law and the facts involved and shall have
jurisdiction to enter a judgment enforcing, modifying, and enforcing as
so modified, or setting aside in whole or in part, such assessment.
(3) Any election to have this paragraph apply may not be revoked
except with the consent of the Secretary.
(d) If any person fails to pay an assessment of a civil penalty after
it has become a final and unappealable order under paragraph (b) of this
section, or after the appropriate District Court has entered final
judgment in favor of the Secretary under paragraph (c) of this section,
the Secretary shall institute an action to recover the amount of such
penalty in any appropriate District Court of the United States. In such
action, the validity and appropriateness of such final assessment order
or judgment shall not be subject to review.
(e)(1) In accordance with the provisions of section 333(d)(5)(A) of
the Act and notwithstanding the provisions of title 28, United States
Code, or section 502(c) of the Department of Energy Organization Act,
the Secretary shall be represented by the General Counsel of the
Department of Energy (or any attorney or attorneys within DOE designated
by the Secretary) who shall supervise, conduct, and argue any civil
litigation to which paragraph (c) of this section applies including any
related collection action under paragraph (d) of this section in a court
of the United States or in any other court, except the Supreme Court of
the United States. However, the Secretary or the General Counsel shall
consult with the Attorney General concerning such litigation and the
Attorney General shall provide, on request, such assistance in the
conduct of such litigation as may be appropriate.
(2) In accordance with the provisions of section 333(d)(5)(B) of the
Act, and subject to the provisions of section 502(c) of the Department
of Energy Organization Act, the Secretary shall be represented by the
Attorney General, or the Solicitor General, as appropriate, in actions
under this section, except to the extent provided in paragraph (e)(1) of
this section.
(3) In accordance with the provisions of section 333(d)(5)(C) of the
Act, section 402(d) of the Department of Energy Organization Act shall
not apply with respect to the function of the Secretary under this
section.
10 CFR 430.75Confidentiality.
Pursuant to the provisions of 10 CFR 1004.11, any person submitting
information or data which the person believes to be confidential and
exempt law from public disclosure should submit one complete copy, and
fifteen copies from which the information believed to be confidential
has been deleted. In accordance with the procedures established at 10
CFR 1004.11, DOE shall make its own determination with regard to any
claim that information submitted be exempt from public disclosure.
10 CFR 430.75 Appendix A to Subpart F Compliance Statement
Product:
Manufacturer's Name and Address
-- -- --
Date:
Submit by Certified Mail to: Department of Energy, Appliance
Efficiency Standards, Assistant Secretary for Conservation and Renewable
Energy, Forrestal Building, 1000 Independence Avenue, SW., Washington,
DC 20585.
This report is submitted pursuant to Part 430 (Energy Conservation
Program for Consumer Products) of the Energy Policy and Conservation Act
(Pub. L. 94-163), and amendments thereto. The basic model(s) included
in this report complies (comply) with the applicable energy conservation
standard. All testing where appropriate, on which this certification
report is based, was conducted in conformance with the applicable test
requirements prescribed in Subpart B of 10 CFR Part 430. All
information reported in this certification report is true, accurate, and
complete. I am aware of the penalties associated with violations of the
Act and the regulations thereunder, and am also aware of the provisions
contained in 18 U.S.C. 1001, which prohibits knowingly making false
statements to the Federal Government.
Name of Person to Contact for Further Information:
Name:
Address:
Telephone No.:
If the model specific information accompanying this statement of
compliance was prepared by a third party organization under the
provisions of 430.62 of 10 CFR Part 430, the individual (manufacturer)
authorizing third party representations:
Signature:
Name:
Address:
Telephone No.:
10 CFR 430.75 Pt. 430, Subpt. F, App. B
10 CFR 430.75 Appendix B to Subpart F of Part 430 -- Sampling Plan for
Enforcement Testing
Step 1. The first sample size (n1) must be four or more units.
Step 2. Compute the mean (x81) of the measured energy performance of
the n1 units in the first sample as follows:
10 CFR 430.75
where xi is the measured energy efficiency or energy consumption of
unit i.
Step 3. Compute the standard deviation (s1) of the measured energy
performance of the n1 units in the first sample as follows:
10 CFR 430.75
Step 4. Compute the standard error (s^x ) of the measured energy
performance of the n1 units in the first sample as follows:
10 CFR 430.75
Step 5. Compute the upper control limit (UCL1) and lower control
limit (LCL1) for the mean of the first sample using the applicable DOE
energy performance standard (EPS) as the desired mean and a probability
level of 95 percent (two-tailed test) as follows:
10 CFR 430.75
where t is a statistic based on a 95 percent two-tailed probability
level and a sample size of n1.
Step 6A. For an Energy Efficiency Standard, compare the mean of the
first sample (x81) with the upper and lower control limits (UCL1 and
LCL1) to determine one of the following:
(i) If the mean of the first sample is below the lower control limit,
then the basic model is in noncompliance and testing is at an end. (Do
not go on to any of the steps below.)
(ii) If the mean of the first sample is equal to or greater than the
upper control limit, then the basic model is in compliance and testing
is at an end. (Do not go on to any of the steps below.)
(iii) If the sample mean is equal to or greater than the lower
control limit but less than the upper control limit, then no
determination of compliance or noncompliance can be made and a second
sample size is determined by Step 7a.
Step 6b. For an Energy Consumption Standard, compare the mean of the
first sample (x81) with the upper and lower control limits (UCL1 and
LCL1) to determine one of the following:
(i) If the mean of the first sample is above the upper control limit,
then the basic model is in noncompliance and testing is at an end. (Do
not go on to any of the steps below.)
(ii) If the mean of the first sample is equal to or less than the
lower control limit, then the basic model is in compliance and testing
is at an end. (Do not go on to any of the steps below.)
(iii) If the sample mean is equal to or less than the upper control
limit but greater than the lower control limit, then no determination of
compliance or noncompliance can be made and a second sample size is
determined by Step 7b.
Step 7a. For an Energy Efficiency Standard, determine the second
sample size (n2) as follows:
where s1 and t have the values used in Steps 4 and 5, respectively.
The term ''0.05 EPS'' is the difference between the applicable energy
efficiency standard and 95 percent of the standard, where 95 percent of
the standard is taken as the lower control limit. This procedure yields
a sufficient combined sample size (n1+n2) to give an estimated 97.5
percent probability of obtaining a determination of compliance when the
true mean efficiency is equal to the applicable standard.
Given the solution value of n2, determine one of the following:
(1) If the value of n2 is less than or equal to zero and if the mean
energy efficiency of the first sample (x81) is either equal to or
greater than the lower control limit (LCL1) or equal to or greater than
95 percent of the applicable energy efficiency standard (EES), whichever
is greater, i.e., if
n2 0 and x81 max(LCL1, 0.95 EES),
the basic model is in compliance and testing is at an end.
(2) If the value of n2 is less than or equal to zero and the mean
energy efficiency of the first sample (x81) is less than the lower
control limit (LCL1) or less than 95 percent of the applicable energy
efficiency standard (EES), whichever is greater, i.e., if
n2 0 and x81 < max(LCL1, 0.95 EES),
the basic model is in noncompliance and testing is at an end.
(3) If the value of n2 is greater than zero, then value of the second
sample size is determined to be the smallest integer equal to or greater
than the solution value of n2 for equation (6a). If the value of n2 so
calculated is greater than 20-n1, set n2 equal to 20-n1.
Step 7b. For an Energy Consumption Standard, determine the second
sample size (n2) as follows:
where s1 and t have the values used in Steps 4 and 5, respectively.
The term ''0.05 EPS'' is the difference between the applicable energy
consumption standard and 105 percent of the standard, where 105 percent
of the standard is taken as the upper control limit. This procedure
yields a sufficient combined sample size (n1 + n2) to give an estimated
97.5 percent probability of obtaining a determination of compliance when
the true mean consumption is equal to the applicable standard.
Given the solution value of n2, determine one of the following:
(1) If the value of n2 is less than or equal to zero and if the mean
energy consumption of the first sample (x81) is either equal to or less
than the upper control limit (UCL1) or equal to or less than 105 percent
of the applicable energy performance standard (EPS), whichever is less,
i.e., if
n2 0 and x81 min(UCL1, 1.05 EPS),
the basic model is in compliance and testing is at an end.
(2) If the value of n2 is less than or equal to zero and the mean
energy consumption of the first sample (x81) is greater than the upper
control limit (UCL1) or more than 105 percent of the applicable energy
performance standard (EPS), whichever is less, i.e., if
n2 0 and x81 min(LCL1, 1.05 EPS),
the basic model is in noncompliance and testing is at an end.
(3) If the value of n2 is greater than zero, then the value of the
second sample size is determined to be the smallest integer equal to or
greater than the solution value of n2 for equation (6b). If the value
of n2 so calculated is greater than 20-n1, set n2 equal to 20-n1.
Step 8. Compute the combined mean (x82) of the measured energy
performance of the n1 and n2 units of the combined first and second
samples as follows:
10 CFR 430.75
Step 9. Compute the standard error (sx82) of the measured energy
performance of the n1 and n2 units in the combined first and second
samples as follows:
10 CFR 430.75
Note. -- s1 is the value obtained in Step 3.
Step 10a. For an Energy Efficiency Standard, compute the lower
control limit (LCL2) for the mean of the combined first and second
samples using the DOE energy efficiency standard (EES) as the desired
mean and a one-tailed probability level of 97.5 percent (equivalent to
the two-tailed probability level of 95 percent used in Step 5, above) as
follows:
10 CFR 430.75
where the t-statistic has the value obtained in Step 5 above.
Step 10b. For an Energy Consumption Standard, compute the upper
control limit (UCL2) for the mean of the combined first and second
samples using the DOE energy performance standard (EPS) as the desired
mean and a one-tailed probability level of 102.5 percent (equivalent to
the two-tailed probability level of 95 percent used in Step 5, above) as
follows:
10 CFR 430.75
where the t-statistic has the value obtained in Step 5 above.
Step 11a. For an Energy Efficiency Standard, compare the combined
sample mean (x82) to the lower control limit (LCL2) to find one of the
following:
(i) If the mean of the combined sample (x82) is less than the lower
control limit (LCL2) or 95 percent of the applicable energy efficiency
standard (EES), whichever is greater, i.e., if
x82 max(LCL2, 0.95 EES),
the basic model is in noncompliance and testing is at an end.
(ii) If the mean of the combined sample (x82) is equal to or greater
than the lower control limit (LCL2) or 95 percent of the applicable
energy efficiency standard (EES), whichever is greater, i.e., if
x82 max(LCL2, 0.95 EES),
the basic model is in compliance and testing is at an end.
Step 11b. For an Energy Consumption Standard, compare the combined
sample mean (x82) to the upper control limit (UCL2) to find one of the
following:
(i) If the mean of the combined sample (x82) is greater than the
upper control limit (UCL2) or 105 percent of the applicable energy
performance standard (EPS), whichever is less, i.e., if
x82 min(UCL2, 1.05 EPS),
the basic model is in noncompliance and testing is at an end.
(ii) If the mean of the combined sample (x82) is equal to or less
than the upper control limit (UCL2) or 105 percent of the applicable
energy performance standard (EPS), whichever is less, i.e., if
x82 min(UCL2, 1.05 EPS),
the basic model is in compliance and testing is at an end.
If a determination of non-compliance is made in Steps 6, 7 or 11,
above, the manufacturer may request that additional testing be
conducted, in accordance with the following procedures.
Step A. The manufacturer requests that an additional number, n3, of
units be tested, with n3 chosen such that n1+n2+n3 does not exceed 20.
Step B. Compute the mean energy performance, standard error, and
lower or upper control limit of the new combined sample in accordance
with the procedures prescribed in Steps 8, 9, and 10, above.
Step C. Compare the mean performance of the new combined sample to
the revised lower or upper control limit to determine one of the
following:
a.1. For an Energy Efficiency Standard, if the new combined sample
mean is equal to or greater than the lower control limit or 95 percent
of the applicable energy efficiency standard, whichever is greater, the
basic model is in compliance and testing is at an end.
a.2. For an Energy Consumption Standard, if the new combined sample
mean is equal to or less than the upper control limit or 105 percent of
the applicable energy consumption standard, whichever is less, the basic
model is in compliance and testing is at an end.
b.1. For an Energy Efficiency Standard, if the new combined sample
mean is less than the lower control limit or 95 percent of the
applicable energy efficiency standard, whichever, is greater, and the
value of n1+n2+n3 is less than 20, the manufacturer may request that
additional units be tested. The total of all units tested may not
exceed 20. Steps A, B, and C are then repeated.
b.2. For an Energy Consumption Standard, if the new combined sample
mean is greater than the upper control limit or 105 percent of the
applicable energy consumption standard, whichever is less, and the value
of n1+2+3 is less than 20, the manufacturer may request that additional
units be tested. The total of all units tested may not exceed 20.
Steps A, B, and C are then repeated.
c. Otherwise, the basic model is determined to be in noncompliance.
(54 FR 6081, Feb. 7, 1989; 54 FR 11320, Mar. 17, 1989)
10 CFR 430.75 Pt. 435
10 CFR 430.75 PART 435 -- ENERGY CONSERVATION VOLUNTARY PERFORMANCE STANDARDS FOR NEW BUILDINGS; MANDATORY FOR FEDERAL BUILDINGS
10 CFR 430.75 Subpart A -- Voluntary Performance Standards for New
Commercial and Multi-Family High Rise Residential Buildings; Mandatory
for Federal Buildings
Sec.
435.97 Purpose.
435.98 Scope.
435.99 General definitions and acronyms.
435.100 Explanation of numbering system for standards.
435.101 Implementation and compliance procedures for Federal
agencies.
435.102 Principles of effective energy building design.
435.103 Lighting.
435.104 Auxiliary systems and equipment.
435.105 Building envelope.
435.106 Electric power and distribution.
435.107 Heating, ventilation and air-conditioning (HVAC) systems.
435.108 Heating, ventilation, and air-conditioning (HVAC) equipment.
435.109 Service water heating systems.
435.110 Energy management.
435.111 Building energy cost compliance alternative.
435.112 Building energy compliance alternative.
10 CFR 430.75 Subpart B -- Voluntary Performance Standards for New Non-Federal Residential Buildings (Reserved)
10 CFR 430.75 Subpart C -- Mandatory Performance Standards for New
Federal Residential Buildings
435.300 Purpose.
435.301 Scope.
435.302 Definitions.
435.303 Requirements for the design of a Federal residential
building.
435.304 The COSTSAFR Program.
435.305 Alternative compliance procedure.
435.306 Selecting a life cycle effective proposed building design.
Authority: 42 U.S.C. 6831-6870; 42 U.S.C. 8254; 42 U.S.C. 7101, et
seq.
Source: 53 FR 32545, Aug. 25, 1988, unless otherwise noted.
10 CFR 430.75 Subpart A -- Voluntary Performance Standards for New
Commercial and Multi-Family High Rise Residential Buildings; Mandatory
for Federal Buildings
Source: 54 FR 4554, January 30, 1989, unless otherwise noted.
10 CFR 435.97Purpose.
(a) This subpart establishes energy conservation voluntary
performance standards for the design of new commercial and multi-family
high rise residential buildings. The voluntary performance standards
are designed to achieve the maximum practicable improvements in energy
efficiency and increases in the use of non-depletable sources of energy.
(b) The voluntary performance standards will be used by Federal
agencies for the design of new Federal commercial and multi-family high
rise residential buildings.
(c) Except in the case of new commercial and multi-family high rise
residential buildings, which are Federal buildings, voluntary
performance standards prescribed under this subpart are developed solely
as guidelines for the purpose of providing technical assistance for the
design of energy efficient buildings.
10 CFR 435.98 Scope.
(a) The voluntary performance standards for new commercial and
multi-family high rise residential buildings apply to the design of a
new commercial or multi-family high rise residential building, except
for the following:
(1) A building constructed and developed for residential occupancy,
unless the building is a multi-family high rise residential building
with 3 or more stories;
(2) Heating, cooling, ventilating, or service hot water requirements
for those spaces where processes occur for purposes other than occupant
comfort and sanitation, and which impose thermal loads in excess of 5%
of the loads that would otherwise be required for occupant comfort and
sanitation without the process;
(3) Envelope requirements for those spaces where heating or cooling
requirements are excepted in paragraph (a)(2) of this section;
(4) Lighting for tasks not listed or encompassed by areas or
activities listed in Table 3.5-1; and
(5) Buildings that are composed entirely of spaces listed in
paragraphs (a) (2), (3), and (4) of this section.
10 CFR 435.99General definitions and acronyms.
(a) For the purpose of this subpart:
''Accessible (as applied to equipment)'' means admitting close
approach; not guarded by locked doors, elevation, or other effective
means. (See also Readily Accessible.)
''Adjusted Lighting Power'' means lighting power, ascribed to a
luminaire(s), that has been reduced by deducting a lighting power
control credit based on use of an automatic control device.
''Annual Fuel Utilization Efficiency'' means the ratio of annual
output energy to annual input energy that includes any non-heating
season pilot input loss.
''Air Conditioning, Comfort'' means treating air to control its
temperature, relative humidity, cleanliness, and distribution to meet
the comfort requirements of the occupants of the conditioned space.
Some air conditioners may not accomplish all of these controls.
''Ambient Lighting'' means lighting that produces general
illumination throughout an area.
''Area Factor'' means a multiplying factor that adjusts the base unit
power density (UPD) for spaces of various sizes to account for the
impact of room configuration on lighting power utilization.
''Automatic'' means a self-acting, operating by its own mechanism,
when actuated by some impersonal influence, such as, a change in current
strength, pressure, temperature or mechanical configuration. (See also
Manual.)
''Ballast'' means a device used with an electric-discharge lamp to
obtain the necessary circuit conditions (voltage, current, and wave
form) for starting and operating.
''Ballast Efficacy Factor -- Fluorescent'' means the ratio of the
relative light output to the power input in watts, at specified test
conditions, expressed as a percent.
''Ballast Factor'' means the ratio of a commercial ballast lamp
lumens to a reference ballast lamp lumens, used to correct the lamp
lumen output from rated to actual.
''Boiler Capacity'' means the rated heat output in Btu/h of the
boiler, at the design inlet and outlet conditions and rated fuel/energy
input.
''British Thermal Unit'' means approximately the amount of heat
required to raise the temperature of one pound of water from 59 F to 60
F.
''Building'' means any new structure to be constructed that includes
provision for a heating or cooling system, or both, or for a hot water
system.
''Building Code'' means a legal instrument which is in effect in a
state or unit of general purpose local government, the provisions of
which must be adhered to if a building is to be considered to be in
conformance with law and suitable for occupancy and use.
''Building Design'' means the architectural and engineering drawings
and specifications used for the construction of a new building.
''Building Energy Cost'' means the computed annual energy cost of all
purchased energy for the building, calculated using the methods of
Section 435.111 of these standards.
''Building Envelope'' means the elements of a building that enclose
conditioned spaces through which thermal energy may be transferred to or
from the exterior or to or from unconditioned spaces.
''Building Type'' means the classification of a building by usage.
In this regulation the following classifications of buildings are
defined by these uses:
(1) ''Assembly'' means a building or structure for the gathering
together of persons, such as auditoriums, churches, dance halls,
gymnasiums, theaters, museums, passenger depots, sports facilities, and
public assembly halls.
(2) ''Health and Institutional'' means a building or structure for
the purpose of providing medical treatment, confinement or care, and
sleeping facilities such as hospitals, sanitariums, clinics, orphanages,
nursing homes, mental institutions, reformatories, jails, and prisons.
(3) ''Hotel/Motel'' means a building or structure for transient
occupancy, such as resorts, hotels, motels, barracks, and dormitories.
(4) ''Multi-Family'' means a building or structure containing three
or more dwelling units. (See Dwelling Units, and Multi-Family
Dwelling.)
(5) ''Office (Business)'' means a building or structure for office,
professional, or service type transactions, such as medical offices,
banks, libraries, and business offices, including governmental office
buildings.
(6) ''Restaurant'' means a building or a structure for the
consumption of food or drink, including fast food, coffee shops,
cafeterias, bars, and restaurants.
(7) ''Retail (Mercantile)'' means a building or a structure for the
display and sale (wholesale or retail) of merchandise, such as shopping
malls, food markets, auto dealerships, department stores, and specialty
shops. (See also Retail Establishments.)
(8) ''School (Educational)'' means a building or structure for the
purpose of instruction, such as schools, colleges, universities, and
academies.
(9) ''Warehouse (Storage)'' means a building or structure for
storage, such as aircraft hangers, garages, warehouses, storage
buildings, and freight depots.
''Check Metering'' means measurement instrumentation for the
supplementary monitoring of energy (electric, gas, oil, etc.)
consumption, in addition to the revenue metering furnished by the
utility, to isolate the various categories of energy use to permit
conservation and control.
''Coefficient of Performance -- Cooling'' means the ratio of the rate
of heat removal to the rate of energy input in consistent units, for a
complete cooling system or factory assembled equipment, as tested under
a nationally recognized standard or designated operating conditions.
''Coefficient of Performance, Heat Pump -- Heating'' means the ratio
of the rate of heat delivered to the rate of energy input, in consistent
units, for a complete heat pump system under designated operating
conditions. When checking compliance with the heat pump equipment COP's
listed in the tables in Section 435.108.
''Combined Thermal Transmittance Values'' (See Thermal Transmittance,
Overall.)
''Commercial Building'' means a building other than a residential
building, including any building developed for industrial or public
purposes.
''Conditioned Floor Area'' means the area of the conditioned space
measured at floor level from the interior surfaces of the walls.
''Conditioned Space'' means a volume within a building that is
designed to be heated and/or cooled, directly or indirectly.
''Connected Lighting Power'' means the power required to energize
luminaires and lamps installed and connected to the building electrical
service, in watts.
''Control Loop, Local'' means a control system consisting of a
sensor, a controller, and a controlled device.
''Cooled Space'' means an enclosed area within a building that has a
refrigeration system whose sensible capacity exceeds 5 Btu/h ft /2/
or is capable of maintaining space dry bulb temperatures of 90 F or
less at design cooling conditions.
''Daylight Sensing Control'' means a device that automatically
regulates the power input to electric lighting near the fenestration to
maintain the desired workplace illumination, thus taking advantage of
direct or indirect sunlight.
''Dead Band (Dead Zone)'' means the range of values within which an
input variable can be varied without initiating any noticeable change in
the output variable.
''Default Assumption'' means the value of an input used in a
calculation procedure when a value is not entered by the designer.
''Degree-Day'' means a unit, based upon temperature difference and
time, used in estimating fuel consumption and specifying nominal heating
load of building in winter. For any day, when the mean temperature is
less than a reference temperature, typically 65 F, there are as many
Degree-Days as Fahrenheit degrees difference in temperature between the
mean temperature for the day and the reference temperature.
''Degree Day, Cooling'' means a unit, based upon temperature
difference and time, used in estimating cooling energy consumption. For
any one day, when the mean temperature is more than a reference
temperature, typically 65 F, there are as many Degree Days as degrees
Fahrenheit temperature difference between the mean temperature for the
day and the reference temperature. Annual Cooling Degree Days (CDD) are
the sum of the degree days over a calendar year.
''Degree Day, Heating'' means a unit, based upon temperature
difference and time, used in estimating heating energy consumption. For
any one day, when the mean temperature is less than a reference
temperature, typically 65 F, there are as many Degree Days as degrees
Fahrenheit temperature difference between the mean temperature for the
day and the reference temperature. Annual Heating Degree Days (HDD) are
the sum of the degree days over a calendar year.
''Demand (Electric)'' means the rate at which electric energy is
delivered to or by a system, part of a system, or a piece of equipment;
expressed in kilowatts, kilovoltamperes; or other suitable units at a
given instant or averaged over any designated period.
''Design Conditions'' means the exterior and interior environmental
parameters specified for air conditioning and electrical design for a
facility.
''Design Energy Consumption'' means the computed annual energy usage
of a proposed building design.
''Design Energy Costs'' means the computed annual energy expenditures
of a proposed building design.
''Dwelling Unit'' means a single housekeeping unit comprised of one
or more rooms providing complete, independent living facilities for one
or more persons including permanent provisions for living, sleeping,
eating, cooking, and sanitation.
''Economizer, Air'' means a ducting arrangement and automatic control
system that allows a cooling supply fan system to supply outside air to
reduce or eliminate the need for mechanical refrigeration during mild or
cold weather.
''Economizer, Water'' means a system by which the supply air of a
cooling system is cooled directly and/or indirectly by evaporation of
water, or by other appropriate fluid, in order to reduce or eliminate
the need for mechanical refrigeration.
''Efficiency, HVAC System'' means the ratio of the useful energy
output (at the point of use) to the energy input in consistent units for
a designated time period, expressed in percent.
''Emergency System (Back Up System)'' means a system which exists for
the purpose of operating in the event of failure of a primary system.
''Energy'' means the capability for doing work; having several forms
that may be transformed from one to another, such as thermal (heat),
mechanical (work), electrical, and chemical.
''Energy Cost'' means the annual cost of energy by unit and type of
energy.
''Energy Cost Budget'' means the maximum allowable computed annual
energy expenditure for a proposed building.
''Energy Efficiency Ratio'' means the ratio of net equipment cooling
capacity in Btu/h to total rate of electric input in watts under
designated operating conditions. When consistent units are used, this
ratio becomes equal to COP. (See also Coefficient of Performance.)
''Energy Management System'' means a control system designed to
monitor the environment and the use of energy in a facility and to
adjust the parameters of local control loops to conserve energy while
maintaining a suitable environment.
''Energy, Recovered'' (See Recovered Energy.)
''Enthalpy'' means a thermodynamic property of a substance defined as
the sum of its internal energy plus the quantity PV/J, where P=pressure
of the substance, V=its volume, and J=the mechanical equivalent of heat;
formerly called total heat and heat content.
''Exterior Envelope'' (See Building Envelope.)
''Fenestration'' means any light-transmitting section in a building
wall or roof. The fenestration includes glazing material, which may be
glass or plastic; framing, mullions, muntins, and dividers; external
shading devices; internal shading devices, and integral (between-glass)
shading devices.
''Federal Agency'' means any department, agency, corporation, or
other entity or instrumentality of the executive branch of the Federal
Government, including the United States Postal Service, the Federal
National Mortgage Association, and the Federal Home Loan Mortgage
Corporation.
''Federal Building'' means any building to be constructed by, or for
the use of, any Federal Agency which is not legally subject to State or
local building codes or similar requirements.
''Footcandle'' means the unit of illuminance on a surface one square
foot in area on which there is a uniformly distributed flux of one
lumen, or the illuminance produced on a surface all points of which are
at a distance of one foot from a directionally uniform point source of
one candela.
''General Lighting'' means lighting designed to provide illumination
throughout an area, exclusive of any provision for special local
requirements.
''Gross Floor Area'' means the sum of the areas of the several floors
of the building, including basements, mezzanine and intermediate-floored
tiers and penthouses of headroom height, measured from the exterior
faces of exterior walls or from the centerline of walls separating
buildings, but excluding covered walkways, open roofed-over areas,
porches and similar spaces, pipe trenches, exterior terraces or steps,
chimneys, roof overhangs, and similar features.
''Gross Lighted Area'' means the sum of the total lighted areas of a
building measured from the inside of the perimeter walls, for each floor
of the building.
''Gross Roof Area'' means the total surface of the roof assembly
exposed to the outside air, including all roof/ceiling and skylight
components through which heat may flow between indoor and outdoor
environments, excluding service openings.
''Gross Exterior Wall Area'' means the total surface of the wall
assembly exposed to the outside air and enclosing a heated or cooled
space consisting of opaque surfaces, including between floor spandrels,
peripheral edges of flooring and window areas including sash and door
areas but excluding vents, grilles, and pipes.
''HVAC System'' means the equipment distribution network and
terminals that provide either collectively or individually the processes
of heating, ventilating, and/or air conditioning to a building.
''HVAC System Efficiency'' (See Efficiency, HVAC System.)
''Heat'' means the form of energy that is transferred by virtue of a
temperature difference or a change in state of a material.
''Heat Capacity'' means the amount of heat necessary to raise the
temperature of a given mass one degree. Numerically the mass multiplied
by the specific heat.
''Heated Space'' means a volume within a building which is provided
with a positive supply of thermal energy by a system whose output
capacity either exceeds 10 Btu/h ft /2/ or is capable of maintaining a
space dry-bulb temperature of 50 F or more at design building
conditions.
''Heating System Performance Factor'' means the total heating output
of a heat pump during its normal annual usage period for heating, in
Btu, divided by the total electric energy input during the same period,
in watt-hours.
''Heat Trap'' means a device coupled to the inlet and outlet of a
water heater that effectively restricts the natural tendency of hot
water to rise in the vertical pipe during periods of standby.
''Humidistat'' means an automatic control device responsive to
changes in humidity.
''Illuminance'' means the density of the luminous flux incident on a
surface. It is the quotient of the luminous flux multiplied by the area
of the surface when the latter is uniformly illuminated. (See also
Footcandle.)
''Industrial Process'' means any manufacturing or other process whose
energy requirements are not primarily intended to contribute to the
heating, cooling, lighting, ventilation, or service hot water energy
load requirements of the building.
''Infiltration'' means the uncontrolled inward air leakage through
cracks and crevices in any building element and around windows and doors
of a building.
''Insolation'' means the rate of solar energy incident on a unit area
with a given orientation.
''Integrated Part-Load Value'' means a single number figure of merit
for airconditioning and heat pump equipment based on weighted operation
at a set of less than full capacities for the equipment.
''Lighting Power Budget'' means the lighting power, in watts, allowed
for an interior or exterior area or activity.
''Lighting Power Control Credit'' means the amount of interior
connected lighting power which may be added to the Interior Lighting
Power Allowance for lights in a space which is turned off or dimmed by
automatic control devices.
''Lumen'' means SI unit of luminous flux. Radiometrically, it is
determined from the radiant power. Photometrically, it is the luminous
flux emitted within a unit solid angle (one steradian) by a point source
having a uniform luminous intensity of one candela.
''Lumen Maintenance Control'' means a device that senses the
illumination level and causes an increase/decrease of illuminance to
maintain a preset illumination level.
''Luminaire'' means a complete lighting unit consisting of a lamp or
lamps together with the parts designed to distribute the light, to
position and protect the lamps, and to connect the lamps to the power
supply.
''Luminaire Efficiency'' means the ratio of luminous flux (lumens)
emitted by a luminaire to that emitted by the lamp or lamps used
therein.
''Manual (Non-Automatic)'' means action requiring personal
intervention for its control. As applied to an electric controller,
non-automatic control does not necessarily imply a manual controller,
but only that personal intervention is necessary. (See Automatic.)
''Marked Rating'' means the design load operating conditions of a
device as shown by the manufacturer on the nameplate or otherwise marked
on the device.
''Minimum Life Cycle Cost Methodology'' means the methodology
specified in Subpart A of 10 CFR Part 436.
''Motor Efficiency, Nominal'' means the median efficiency occurring
in a population of motors of the same manufacturer and rating.
''Multi-Family High Rise Residential Building'' means a residential
building containing three or more dwelling units and is designed to be 3
or more stories above grade.
''Multi-Family Low Rise Residential Building'' means a residential
building containing three or more dwelling units and is designed not to
exceed two stories above grade.
''Non-Depletable Energy Sources'' means sources of energy, excluding
minerals, derived from incoming solar radiation; thermal chemical or
electrical energy derived directly from conversion of incident solar
radiation; wind, waves and tides, lake, or pond thermal differences;
and energy derived from the internal heat of the earth.
''Occupancy Sensor'' means a device that detects the presence or
absence of people within an area and causes lighting, equipment, and/or
appliances to be adjusted accordingly.
''Opaque Areas'' means all exposed areas of a building envelope which
enclose conditioned space, except fenestration areas and building
service openings, such as vents, grilles, and pipes.
''Orientation'' means the directional placement of a building on a
building site with reference to the building's longest horizontal axis,
or, if none, with reference to the designated main entrance.
''Outdoor (Outside) Air'' means air taken from the exterior of the
building that has not been previously circulated through the building.
(See also Ventilating Air.)
''Ozone Depletion Factor'' means a relative measure of the potency of
chemicals in depleting stratospheric ozone. The ozone depletion factor
potential depends upon the chlorine and the bromine content and
atmospheric lifetime of the chemical. The depletion factor potentials
are normalized such that the factor for CFC-11 is set equal to unity and
the factors for the other chemicals indicate their potential relative to
CFC-11.
''Packaged Terminal Air-Conditioner'' means a factory-selected wall
sleeve and separate unencased combination of heating and cooling
components, assemblies or sections, intended for mounting through the
wall to serve a single room or zone. It includes heating capability by
hot water, steam, or electricity.
''Packaged Terminal Heat Pump'' means a PTAC capable of using the
refrigeration system in a reverse cycle or heat pump mode to provide
heat.
''Piping'' means a system for conveying fluids, including pipes,
valves, strainers, and fittings.
''Plenum'' means an enclosure that is part of the air handling system
and is distinguished by having a very low air velocity. A plenum often
is formed in part or in total by portions of the building.
''Power'' means, in connection with machines, the time rate of doing
work; in connection with the transmission of energy of all types, the
rate at which energy is transmitted; in inch-pound units, is measured
in watts (W) or British thermal units per hour (Btu/h).
''Power Adjustment Factor'' means a modifying factor that adjusts the
effective connected lighting power of a space to account for the use of
energy conserving lighting control devices.
''Power Factor'' means the ratio of total watts to the
root-mean-square (RMS) volt amperes.
''Prescribed Assumption'' means a fixed value of an input to the
standard calculation procedure.
''Process Energy'' means energy consumed in support of a
manufacturing, industrial, or commercial process, other than the
maintenance of comfort and amenities for the occupants of a building.
''Process Load'' means the calculated or measured time-integrated
load on a building resulting from the consumption or release of process
energy.
''Proposed Design'' means a prospective design for a building that is
to be evaluated for compliance.
''Prototype Building'' means a generic building design of the same
size and occupancy type as the proposed design, which complies with the
prescriptive requirements of the standards and has prescribed
assumptions used to generate the energy budget concerning shape,
orientation, HVAC, and other system designs.
''Public Facility Restroom'' means a restroom used by the transient
public.
''Radiant Comfort Heating'' means a system in which temperatures of
room surfaces are adjusted to control the rate of heat loss by radiation
from occupants.
''Readily Accessible'' means capable of being reached quickly for
operation, renewal, or inspections, without requiring those to whom
ready access is requisite to climb over or remove obstacles or to resort
to portable ladders, chairs, and so on. (See also Accessible.)
''Recooling'' means lowering the temperature of air that has been
previously heated by a heating system.
''Recovered Energy'' means energy utilized which would otherwise be
wasted (not contributing to a desired end use) from an energy
utilization system.
''Reference Building'' means a specific building design that has the
same form, orientation and basic systems as the proposed design and
meets all the criteria of the prescriptive compliance method.
''Reflectance'' means the ratio of the light reflected by a surface
to the light incident upon it.
''Reheating'' means raising the temperature of air that has been
previously cooled either by a refrigeration or an economizer system.
''Reset'' means adjustment of the controller set point to a higher or
lower value automatically or manually.
''Residential'' means any structure which is constructed and
developed for residential occupancy.
''Retail Establishments'' means, for the purpose of determining
lighting power limit, buildings, the primary functions of which are
designed to be:
(1) Type A -- Jewelry Merchandising, where the minute display and
examination of merchandise is critical.
(2) Type B -- Fine Merchandising: Fine apparel and accessories,
china, crystal and silver, art galleries, etc., where the detailed
display and examination of merchandise is important.
(3) Type C -- Mass Merchandising, where focused display and detailed
examination of merchandise is important.
(4) Type D -- General Merchandising: General apparel, variety,
stationery, books, sporting goods, hobby, cameras, gift, luggage, etc.,
where general display and examination of merchandise are adequate.
(5) Type E -- Food & Miscellaneous: Bakeries, hardware and
housewares, grocery, appliances and furniture, etc., where appetizing
appearance is important.
(6) Type F -- Service Establishments, where functional performance is
important.
''Roof'' means those portions of the building envelope including all
opaque surfaces, fenestration, doors, and hatches which are above
conditioned space and which are horizontal or tilted at less than 45
from horizontal. (See also Walls.)
''Room Air Conditioner'' means an encased assembly designed as a unit
to be mounted in a window or through a wall, or as a console. It is
designed primarily to provide free delivery of conditioned air to an
enclosed space, room, or zone. It includes a prime source of
refrigeration for cooling and dehumidification and means for circulating
and cleaning air, and may also include means for ventilating and
heating.
''Seasonal Energy Efficiency Ratio'' means the total cooling output
of an air conditioner during its normal annual usage period for cooling,
in Btu/h, divided by the total electric energy input during the same
period, in watt-hours, as determined by 10 CFR, Part 430.
''Service Systems'' means all energy-using or distributing components
in a building that are operated to support the occupant or process
functions housed therein, including HVAC, service water heating,
illumination, transportation, cooking or food preparation, laundering or
similar functions.
''Service Water Heating'' means the supply of hot water for purposes
other than comfort heating and process requirements.
''Service Water Heating Demand'' means the maximum design rate of
water withdrawal from a service water heating system in a designated
period of time (usually an hour or a day).
''Shading Coefficient'' means the ratio of solar heat gain through
fenestration, with or without integral shading devices, to that
occurring through unshaded 1/8 inch thick clear, double strength glass.
''Shell Building'' means a building for which the envelope is
designed and/or constructed prior to knowing the occupancy type. (See
also Speculative Building.)
''Speculative Building'' means a building for which the envelope is
designed and/or constructed prior to the design of the lighting and/or
HVAC systems. A speculative building differs from a shell building in
that the intended occupancy is known for the speculative building. (See
also Shell Building.)
''Standard Calculation Procedure'' means an energy simulation model,
and a set of input assumptions, that produce estimates of annual energy
consumption for heating, cooling, ventilation, lighting, and other uses
and that account for the dynamic thermal performance of the building.
''System'' means a combination of equipment and/or controls,
accessories, interconnecting means, and terminal elements by which
energy is transformed so as to perform a specific function, such as
HVAC, service water heating, or illumination.
''Tandem Wiring'' means pairs of luminaires operating with one lamp
in each luminaire powered from a single two-lamp ballast contained in
the other luminaire.
''Task Lighting'' means lighting that provides illumination for
specific visual functions and is directed to a specific surface or area.
''Task Location'' means an area of the space where significant visual
functions are performed and where lighting is required above and beyond
that required for general ambient use.
''Terminal Element'' means a device by which the transformed energy
from a system is finally delivered; i.e., registers, diffusers,
lighting fixtures, faucets, etc.
''Thermal Conductance'' means the constant time rate of heat flow
through unit area of a body induced by a unit temperature difference
between the surfaces, Btu/ft /2/ h F or Btu/h F. It is reciprocal of
thermal resistance. (See Thermal Resistance.)
''Thermal Mass'' means materials with mass heat capacity and surface
area capable of affecting building loads by storing and releasing heat
as the interior and/or exterior temperature and radiant conditions
fluctuate. (See also Wall Heat Capacity.) Thermal Mass Wall Insulation
Position:
(1) ''Exterior Insulation Position'' means a wall having all or
nearly all of its mass exposed to the room air with the insulation on
the exterior of that mass.
(2) ''Integral Insulation Position'' means a wall having mass exposed
to both room and outside air, with substantially equal amounts of mass
on the inside and outside of the insulation layer.
(3) ''Interior Insulation Position'' means a wall not meeting either
of the above definitions, particularly a wall having most of its mass
external to an insulation layer.
''Thermal Resistance'' means the reciprocal thermal conductance; 1/C
as well as 1/h, 1/U, h ft /2/ F/Btu.
''Thermal Transmittance'' means the overall coefficient of heat
transfer from air to air. It is the time rate of heat flow per unit
area under steady conditions from the fluid on the warm side of the
barrier to the fluid on the cold side, per unit temperature difference
between the two fluids, Btu/h ft /2/ F.
''Thermal Transmittance, Overall'' means the gross overall (area
weighted average) coefficient of heat transfer from air to air for a
gross area of the building envelope, Btu/h ft /2/ F. The thermal
transmittance (U ) value applies to the combined effect of the time rate
of heat flows through the various parallel paths, such as windows,
doors, and opaque construction areas, comprising the gross area of one
or more building envelope components, such as walls, floors, or
roof/ceiling.
''Thermostat'' means an automatic control device responsive to
temperature.
''Unconditioned Space'' means a volume within a building that is not
designed to be directly or indirectly heated and/or cooled. (See
Conditioned Space.)
''Unit Power Density'' means the floor area designated for a specific
occupancy, function, or activity expressed in W/ft /2/ .
''Unitary Cooling Equipment'' means one or more factory-made
assemblies which normally include an evaporator or cooling coil, a
compressor and condenser combination, and may include a heating function
as well.
''Unitary Heat Pump'' means one or more factory-made assemblies which
normally include an indoor conditioning coil, compressor(s) and outdoor
coil or refrigerant-to-water heat exchanger, including means to provide
both heating and cooling functions.
''Unlisted Space'' means the difference in area between the gross
lighted area and the sum of all listed spaces.
''Variable Air Volume (VAV) HVAC System'' means HVAC systems that
control the dry-bulb temperature within a space by varying the volume of
supply air to the space.
''Ventilation'' means the process of supplying or removing air by
natural or mechanical means to or from any space. Such air may or may
not have been conditioned.
''Ventilation Air'' means that portion of supply air which comes from
outside (outdoors) plus any recirculated air that has been treated to
maintain the desired quality of air within a designated space. (See
also Outdoor Air.)
''Visual Task'' means those details and objects that must be seen for
the performance of a given activity, and includes the immediate
background of the details or objects.
''Voluntary Performance Standards'' means an energy consumption goal
or goals to be met without specification of the method, materials, and
processes to be employed in achieving that goal or goals, but including
statements of the requirements, criteria and evaluation methods to be
used, and any necessary commentary.
''Walls'' means those portions of the building envelope enclosing
conditioned space including all opaque surfaces, fenestration and doors,
which are vertical or tilted at an angle of 45 from horizontal or
greater. (See also Roof.)
''Wall Heat Capacity'' means the sum of the products of the mass of
each individual material in the wall per unit area of wall surface times
its individual specific heat, Btu/F. (See Thermal Mass.)
''Watt'' means a unit of power. One watt is produced when one
ampere, flows at an amp of one volt (unity power factor). (See also
Power.)
''Zone'' means a space or group of spaces within a building with
heating, cooling, and/or lighting requirements sufficiently similar so
that desired conditions can be maintained throughout by a single
controlling device.
(b) For definitions not found in paragraph (a) of this section, the
1986 edition of ''Terminology of Heating and Ventilation,
Air-Conditioning, and Refrigeration'' as published by the American
Society of Heating, Refrigeration, and Air-Conditioning Engineers, Inc.
(ASHRAE) shall apply to these standards.
(c) For purposes of this subpart, the acronyms and abbreviations
shall have the following meanings:
Ao -- Total Building Floor Area.
Awall, roof, etc. -- Area of a Specific Building component.
AAMA -- American Aluminum Manufacturers Association.
ACP -- Alternative Component Package.
AF -- Area Factor.
AFUE -- Annual Fuel Utilization Efficiency.
AHAM -- Association of Home Appliance Manufacturers.
ALP -- Adjusted Lighting Power.
ANSI -- American National Standards Institute.
ARI -- Air-Conditioning and Refrigeration Institute.
ASHRAE -- American Society of Heating, Refrigeration and Air
Conditioning Engineers, Inc.
ASME -- American Society of Mechanical Engineers.
ASTM -- American Society for Testing and Materials.
Btu -- British Thermal Unit.
Btu/h -- British Thermal Units Per Hour.
C -- Thermal Conductance.
Cc -- Cooling Criteria.
CDD -- Cooling Degree-Days.
CDD50 -- Cooling Degree-Days Base 50 F.
CDD65 -- Cooling Degree-Days Base 65 F.
CDH -- Cooling Degree-Hours.
CDH80 -- Cooling Degree-Hours Base 80 F.
CEEU -- Cost Equivalent Energy Units.
cfm -- Cubic Feet Per Minute.
CFR -- Code of Federal Regulations.
CLP -- Connected Lighting Power.
COP -- Coefficient of Performance.
CU -- Coefficient of Utilization.
DOE -- U.S. Department of Energy.
DR -- Average Daily Temperature Range for Warmest Month.
EER -- Energy Efficiency Ratio.
ELPA -- Exterior Lighting Power Allowance.
EPD -- Equipment Power Density.
oF -- Degrees-Fahrenheit
GLA -- Gross Lighted Building Area.
HC -- Heat Capacity.
HDD -- Heating Degree-Days.
HDD50 -- Heating Degree-Days Base 50 F.
HDD65 -- Heating Degree-Days Base 65 F.
HI -- Hydronics Institute.
HID -- High Intensity Discharge.
hp -- Horsepower (force).
HPS -- High Pressure Sodium.
HSPF -- Heating System Performance Factor.
HVAC -- Heating, Ventilating and Air Conditioning.
IEEE -- Institute of Electrical and Electronics Engineers, Inc.
IES -- Illuminating Engineering Society of North America.
ILPA -- Interior Lighting Power Allowance.
IPLV -- Integrated Part Load Value.
ILD -- Internal Load Density.
IRF -- Internal Reflecting Film.
ISSC -- Internal Shading System Coefficient.
Kh -- Daylighting Factor.
kVA -- Kilo-Volts Amperes.
kW -- Kilo-Watts.
LPB -- Lighting Power Budget.
LPCC -- Lighting Power Control Credits.
LS -- Listed Space.
NWMA -- National Woodwork Manufacturers Association.
o.c. -- On Center.
OLA -- Occupant Load Adjustment.
OMB -- U.S. Office of Management and Budget.
Pb -- Base Unit Lighting Power Allowance.
PAF -- Power Adjustment Factor.
PF -- Projection Factor.
PTAC -- Packaged Terminal Air-Conditioner.
R -- Thermal Resistance.
r -- Thermal Resistivity.
Sea -- Shading Horizontal Adjustment Factor.
SC -- Shading Coefficient.
SEER -- Seasonal Energy Efficiency Ratio.
Uo -- Average Thermal Transmittance.
UL -- Underwriter's Laboratories, Inc.
ULPA -- Unit Lighting Power Allowance.
UPD -- Unit Power Density.
VAV -- Variable Air Volume.
VCP -- Visual Comfort Probability.
VDT -- Visual Display Terminal.
VLT -- Visible Light Transmittance.
VSEW -- Vertical Surface of the Facade.
W.C. -- Water Column.
W -- Watts.
W/ft /2/ -- Watts Per Square Foot.
W/lin.ft -- Watts Per Linear Foot.
Wh -- Window Height.
WWR -- Window Wall Ratio.
WYEC -- Weather Year for Energy Conservation Calculations.
10 CFR 435.100Explanation of numbering system for standards.
(a) For purposes of this subpart, a derivative of two different
numbering systems will be used.
(1) For the purpose of designating a section, the system employed in
the Code of Federal Regulations (CFR) will be employed. The number
''435,'' which signifies Part 435, Chapter II of Title 10, Code of
Federal Regulations, is used as a prefix for all section headings. The
suffix is a two or three digit number beginning with ''.97.'' For
example, the lighting section of the standards is numbered 435.103.
(2) Within each section, a numbering system common to many national
voluntary consensus standards is used. This system was chosen because
of its commonality among the buildings industry. A decimal system is
used to denote sections and subsections. For example, 9.4.2 refers to
section 9, subsection 4, paragraph 2.
(b) The hybrid numbering system is used for two purposes:
(1) The use of the Code of Federal Regulation's numbering system
allows the researcher using the CFR easy access to the standards.
(2) The use of the second system allows the builder, designer,
architect or engineer easy access because they are used to the system
employed.
(c) To avoid confusion in the use of the two systems, 435.101
through 435.112, the substantive technical sections of the standards,
have been numbered so that the last two digits in the suffix designate
the section. For example, once the reader enters the body of 435.105:
Building Envelope, the number ''5'' is used to designate the section.
References throughout the standard do not employ the ''435'' prefix but
rather refer to the section by the single or double digit numbers from
1-12.
10 CFR 435.101Implementation and compliance procedures for Federal
agencies.
Alternative methods of achieving compliance are illustrated in Figure
1.1-1.
Insert illustration(s) 112
10 CFR 435.101 1.1 Compliance
1.1.1 The head of each Federal agency responsible for the
construction of Federal buildings shall adopt such procedures as may be
necessary to assure that the design of the building shall:
1.1.1.1 be undertaken in a manner that provides for appropriate
consideration of the Principles of Effective Energy Building Design
prescribed in 2.0, 3.2, 4.2, 5.2, 6.2, 7.2, 8.2, 9.2 and 10.2;
1.1.1.2 comply with the minimum requirements of 3.3, 4.3, 5.3, 6.3,
7.3, 8.3, 9.3 and 10.3; and
1.1.1.3 meet or exceed, based upon the analysis of life-cycle
cost-effectiveness required by 1.1.2 below, the following additional
requirements:
1.1.1.3.1 the lighting design shall meet either the prescriptive
requirements of 3.4 or the system performance requirements of 3.5,
1.1.1.3.2 the building envelope design shall meet either the
prescriptive requirements of Section 5.4 or the system performance
requirements of Section 5.5, and
1.1.1.3.3 the heating, ventilating and air conditioning systems
design shall meet the prescriptive requirements of Section 7.4, and
1.1.1.3.4 the service water heating systems design shall meet the
prescriptive requirements of Section 9.4.
1.1.2 In lieu of meeting the provisions of Section 1.1.1 above, the
building design shall meet the criteria of the building energy method of
Section 11.0 or 12.0, Building Energy Compliance Alternatives I and II.
1.1.3 The head of each Federal agency responsible for the
construction of Federal buildings shall also assure that the
decision-making process for the design of the building shall employ the
methodology for estimating and comparing the life-cycle cost of Federal
buildings and for determining life-cycle cost-effectiveness prescribed
in Subpart A of 10 C.F.R. Part 436.
10 CFR 435.101 1.2 General Approach to Compliance
1.2.1 The standards, in addition to minimum requirements, establish
three alternate methods to determine whether the design has achieved
compliance.
1.2.2 There are several alternative methods of achieving compliance
provided for in the standards:
1.2.2.1 Prescriptive (Sections 3.4, 5.4, 7.4 and 9.4),
1.2.2.2 System Performance (Sections 3.5 and 5.5), or
1.2.2.3 Building Energy (Section 11.0 or 12.0).
1.2.2.4 The criteria established for each of the methods allow for
designs that are roughly equivalent in terms of energy conservation.
The equivalency of the methods can be demonstrated by designing a
building using the Prescriptive approach, then modeling the building
using either the System Performance or Building Energy criteria
calculation procedures and comparing results.
1.2.3 Compliance with these standards shall be demonstrated by
meeting the set of minimum requirements defined in Sections 3.2, 3.3,
4.2, 4.3, 5.2, 5.3, 6.2, 6.3, 7.2, 7.3, 8.2, 8.3, 9.2, 9.3, 10.2, and
10.3 and one of the alternative methods.
10 CFR 435.101 1.3 How To Select a Compliance Method
1.3.1 Use the Prescriptive method when the minimum amount of
calculation and effort to achieve compliance is of primary concern. Its
requirements can be readily specified in construction documents and are
easily reviewed by building code enforcement authorities. The
Prescriptive method permits few trade-offs or optimization procedures,
but does permit several energy-effective and cost-effective alternate
construction options to be used. See Figure 1.1-2.
1.3.2 Use the System Performance method when more innovative design
is required, or when the Prescriptive method does not provide the
necessary design flexibility. It requires more manual calculations than
the Prescriptive method. See Figure 1.1-2
1.3.3 Use either of the Building Energy methods (Sections 11.0 or
12.0) when the most innovative design concepts are being considered.
The Building Energy methods allow the trade-off of energy among the
building systems as long as the total calculated design annual energy
consumption does not exceed the limit prescribed. It will, in general,
require the use of a computer program to simulate the operation of the
various systems and to model building design energy use in accordance
with the building loads and the proposed schedules of operation. See
Figures 11-1 and 12-1.
Insert illustration(s) 116
10 CFR 435.102Principles of effective energy building design.
10 CFR 435.102 2.1 General
2.1.1 This section complements the other sections of the standards by
providing general principles of effective building design. The
intention of this section is to provide ideas on how to improve the
integration of the building's major energy using subsystems in a
cost-effective manner without compromising the building's intended
functional use or internal environmental conditions. In addition, more
narrowly focused principles are included in sections 3.0 through 10.0.
2.1.2 To comply with the principles of effective design, designers
shall use their professional judgment to identify the building's most
significant energy requirements and select appropriate solutions from
the general strategies found in this section and the more specific
strategies found in sections 3.0 through 10.0.
10 CFR 435.102 2.2 Identification of Significant Energy Requirements
2.2.1 Before energy design strategies can be developed for a
commercial or multi-family high rise residential building, a clear
picture of its most significant energy requirements must be developed.
The basic approach to achieving an energy conscious design is to improve
the energy efficiency of the building by shifting or reducing loads,
improving transport systems, and providing efficient environmental
systems and controls. This is accomplished by first determining which
aspects of the building's energy requirements are the most significant,
those that would result in the largest annual energy costs to the
building owner if energy conserving strategies were otherwise not
applied. For example, for a given building, the largest annual energy
cost component may be lighting, followed by cooling, heating, and
ventilation, respectively. In this example electricity would be the
major energy source. Therefore, peak time-rates of energy use (i.e.,
peak power demands), as well as direct energy use, would have to be
included in any energy analysis. Consideration of peak demands will
reduce the requirement for oversizing of energy systems in the building
and will also have the added impact of helping to reduce the need for
additional, low utilization peak capacity on utility grids.
2.2.2 Once the most significant cost components of the building's
energy requirements have been determined, apply the strategies and
design solutions listed below and those that appear in each of the
following sections of the standards. ln the example noted above,
lighting solutions would be addressed first, followed by cooling,
heating, and then ventilation.
2.2.3 Research results indicate that the most significant energy uses
for any given commercial or multi-family high rise residential building
are generally not accurately identifiable by professional intuition.
Therefore, use shall be made of one of the several available analysis
tools, some of which are microcomputer-based.
10 CFR 435.102 2.3 General Solution Strategies
2.3.1 Consider energy efficiency from the initiation of the building
design process, since design improvements are most easily and
effectively made at that time. Seek the active participation of members
of the design team early in the design process, including the owner,
architect, engineer, and builder, if possible. Consider building
attributes such as building function, form, orientation, window/wall
ratio, and HVAC system types early in the design process. Each has
major energy implications. These considerations most likely will result
in solutions that minimize both construction and operation costs,
including energy demand charges.
2.3.2 Address the building's energy requirements in the following
sequence: minimize impact of the building functional requirements;
minimize loads; improve the efficiency of distribution and conversion
systems; and integrate building subsystems into an efficient whole.
Each of these is discussed below.
2.3.2.1 Minimize impact of functional requirements by identifying
major areas that offer energy efficiency opportunities based on the
building's functional use, human occupancy requirements, and site
characteristics. These areas will vary considerably from building to
building depending upon function and service requirements, and shall be
considered when applying the criteria of these standards.
2.3.2.2 Minimize loads by analyzing the external and internal loads
to be imposed on building energy-using subsystems, both for peak-load
and part-load conditions. Include a determination of how the building
relates to its external environment in the analysis, either adaptively
or defensively. Consider changes in building form, aspect ratio, and
other attributes that reduce, redistribute, or delay (shift) loads.
2.3.2.3 Improve subsystems by analyzing the diversified energy and
demand (power) requirements of each energy-using subsystem serving the
functional requirements of the building. Consider static and dynamic
efficiency of energy conversion and energy transport subsystems and
include consideration of opportunities to reclaim, redistribute and
store energy for later use.
2.3.2.4 Alternative ways to integrate systems into the building will
be accomplished by considering both power and time components of energy
use. Identify, evaluate, and design each of these components to control
the overall design energy consumption. The following shall be
considered when integrating major building subsystems:
2.3.2.4.1 Address more than one problem when developing design
solutions, and make maximum use of building components already present
for non-energy reasons (e.g., windows, structural mass);
2.3.2.4.2 Examine design solutions that consider time since
sufficient energy may already be present from the environment (e.g.,
solar heat, night cooling) or from internal equipment (e.g., lights,
computers) but available at different times than needed. Thus, active
(heat pumps with water tanks) and passive (building mass) storage
techniques may be considered;
2.3.2.4.3 Examine design solutions that consider anticipated space
utilization. For example, in large but relatively unoccupied spaces,
task or zone heating may be considered. Transporting energy (light and
heat) from locations of production and availability to locations of need
shall be considered instead of the purchase of additional energy;
2.3.2.4.4 Never reject waste energy at temperatures usable for space
conditioning or other practical purposes, without calculating the
economic benefit of energy recovery;
2.3.2.4.5 Consider design solutions that provide more comfortable
surface temperatures or increase availability of controlled daylight in
buildings in which human occupancy is a primary function;
2.3.2.4.6 Use design solutions that are easily understood as they
have a greater probability of use by building occupants; and
2.3.2.4.7 Where the functional requirements of the building may
change, the installed environmental system should be designed to be
adaptable to meet functional changes that can be anticipated as well as
providing flexibility to meet indeterminate future changes in use,
occupancy or other functions.
10 CFR 435.103Lighting.
10 CFR 435.103 3.1 General
3.1.1 This section contains principles of design, a set of minimum
requirements, and two alternative compliance procedures, prescriptive
and systems performance, for the design of building lighting and
lighting control systems, and includes provisions for daylighting
credit. The procedures in this section are solely for use in
establishing lighting design budgets and are not intended for use as
lighting design procedures.
3.1.2 Scope. The following are covered by this section:
3.1.2.1 Interior spaces of buildings;
3.1.2.2 Building exteriors and exterior areas, such as entrances,
exits, and loading docks; and
3.1.2.3 Roads, grounds, parking, and other exterior areas where
lighting is energized through the building electrical service.
3.1.3 Exemptions. The following are exempt from these standards:
3.1.3.1 Outdoor manufacturing, commercial greenhouses, and processing
facilities;
3.1.3.2 Lighting power for theatrical production studios and stages,
television broadcasting studios, audio-visual presentation, and
entertainment facilities in spaces such as stages, hotel ballrooms,
nightclubs, discos, and casinos, and where lighting is an essential
technical element for the function performed;
3.1.3.3 Specialized luminaires for medical and dental purposes;
3.1.3.4 Outdoor athletic facilities;
3.1.3.5 Lighting power for display lighting required for art exhibits
or displays in galleries, museums and monuments;
3.1.3.6 Exterior lighting for public monuments;
3.1.3.7 Special lighting needs for research;
3.1.3.8 Lighting power for lighting used solely for indoor plant
growth during the hours of 10:00 p.m. to 6:00 a.m.;
3.1.3.9 Emergency lighting that is automatically ''off'' during
normal operation;
3.1.3.10 High risk security areas or any area identified by local
ordinances or regulations or by security or safety personnel as
requiring additional lighting;
3.1.3.11 Lighting power densities for spaces with enhanced lighting
specifically designed for primary use by the visually impaired, hard of
hearing, or for senior citizens;
3.1.3.12 Lighting for signs;
3.1.3.13 Store-front exterior-enclosed display windows in retail
facilities; and
3.1.3.14 Lighting for dwelling units.
3.1.4 Building Lighting Power Allowance. The lighting power
allowance for a building consists of the Exterior Lighting Power
Allowance (ELPA), in accordance with Section 3.3, plus the Interior
Lighting Power Allowance (ILPA) in accordance with Section 3.4 or 3.5.
This lighting power allowance is the upper limit to which the building
can be designed, based on the criteria of the compliance alternative
chosen.
3.1.4.1 The prescriptive criteria in Section 3.4 provides a single
compliance procedure based on calculating a lighting budget by building
type or major area type within which a designer can flexibly design a
lighting solution. To obtain credit for specific lighting energy
conservation measures, use Section 3.5, Section 11.0, or Section 12.0.
3.1.4.2 The systems performance criteria in Section 3.5 provides a
more complex compliance procedure based on calculating a lighting budget
by activity or spaces within which the designer can flexibly design a
lighting solution and receive credit for energy conserving controls and
daylighting measures. To receive credit for more complex lighting
conservation measures use Section 11.0 or 12.0.
3.1.5 Credit for Daylighting. Daylighting credit, for reduced use of
electric lighting energy resulting from the use of automatic lighting
control devices in conjunction with fenestration (e.g., windows and
skylights), may be taken if the systems performance alternative in
Section 3.5 is chosen. However, if such daylighting credit is to be
applied to other building subsystems, such as use of additional
fenestration area, Section 11.0 or 12.0 must be used. Thermal credit
provisions for daylighting are found in Section 5.0.
3.1.6 Compliance. A building shall be considered in compliance with
this Section if the following conditions are met:
3.1.6.1 The minimum requirements of Section 3.3 are met;
3.1.6.2 The exterior lighting power to be installed is not greater
than the Exterior Lighting Power Allowance (ELPA), calculated using
Equation 3.3-1;
3.1.6.3 The interior lighting power to be installed is not greater
than the Interior Lighting Power Allowance (ILPA), based on either the
Prescriptive Criteria in Section 3.4 or the Systems Performance Criteria
in Section 3.5.
3.1.6.4 Tradeoffs between ILPA and ELPA are not allowed. Tradeoffs
of the interior Lighting Power Budgets (LPB) among interior spaces are
allowed as long as the total Connected Lighting Power (CLP) within the
building does not exceed the Interior Lighting Power Allowance (ILPA)
and Lighting Power Control Credits (LPCC) are used only for connected
lighting power in those spaces for which credit is claimed. Tradeoffs
of exterior lighting power budgets among exterior areas are allowed as
long as the total Connected Lighting Power (CLP) of exterior lighting
does not exceed the Exterior Lighting Power Allowance (ELPA) and the
allowance for the building exterior surfaces is not exceeded.
3.1.7 Multi-Building Facilities. The total lighting power allowances
for each building in a multi-building facility shall be calculated
separately.
10 CFR 435.103 3.2 Principles of Design
3.2.1 The lighting system is designed to provide a productive, safe,
and pleasing visual environment for the intended use of the space.
However, lighting is both a major energy end use in commercial buildings
(especially in office buildings) and a major contributor to internal
loads by increasing cooling loads and decreasing heating loads.
Therefore, it is important to produce a design that meets the lighting
functional criteria of the space as well as one that minimizes energy
use. Recommended maintained illuminance levels for visual tasks and
surrounding lighted areas are included in the IES Lighting Handbook,
Applications (1983) or Reference (1985). Principles of energy
conserving design within that context are described below.
3.2.2 The following Design Concepts shall be considered in the design
of lighting that is both energy efficient and visually effective.
3.2.2.1 Energy use is determined by the lighting load (demand power)
and its duration of use (time). Minimize the actual demand load rather
than just the apparent connected load, and control the load rather than
just switching, if switching may adversely affect the quality of the
luminous environment.
3.2.2.2 Consider daylighting along with the proper use of controls so
that the savings from electric lighting can be realized. Design should
be sensitive to window glare, sudden changes in luminances, and general
use acceptance of controls. Window treatment (blinds, drapes and
shades) and glazing should be carefully selected to control direct solar
penetration and luminance extremes while still maintaining view and
daylight penetration.
3.2.2.3 Design lighting systems so that illumination required for
tasks is primarily limited to the location of the task and from a
direction that will minimize direct glare and veiling reflections on the
task. For example, the ideal positioning of work stations is between
the rows of ceiling-mounted luminaires with the direction of view
parallel to the primary task. In densely-occupied work spaces, uniform
distribution of general lighting may be most appropriate. Where
supplementary task illumination is necessary, general or ambient
illumination should not be lower than a third of the luminance required
for the task. This will help maintain luminance rates that are visually
comfortable.
3.2.2.4 Use task lighting, whenever possible, to accommodate the need
for higher lighting levels due to task visual difficulty, glare,
intermittently changing requirements, or individual visual differences
(poor and aging eyesight).
3.2.2.5 Group similar activities so high illuminance or special
lighting for particular tasks are localized in certain rooms or areas,
and so that less efficient fixtures required for critical glare control
do not have to be installed uniformly when they are only required
sparsely.
3.2.2.6 When indirect lighting is appropriate, use schemes that
create reasonably uniform ceiling luminances. If this is achieved, work
spaces may be located anywhere and occupants may face in any direction
without being subject to excessive veiling reflection on the tasks. The
indirect system may allow more effective use of the space than other
types of lighting systems. However, indirect lighting systems generally
have lower utilization factors, and may require increased ceiling height
to provide uniform ceiling luminance.
3.2.2.7 Use lighting controls throughout that maintain proper
lighting levels when and where it is needed but also allow reductions in
lighting when tasks are less critical, or spaces are not fully occupied.
The designer must consider user acceptance of control strategies to
maximize energy efficiency.
3.2.2.8 Use lower levels of ambient lighting in situations such as
merchandising, where the contrast between accent lighting and ambient
lighting is critical. Accent lighting shall not exceed five (5) times
the ambient level. Consider fewer, more effectively-accented displays,
rather than more ineffectively-accented ones.
3.2.3 The following guidelines identify Fixture and Lamp selection
strategies to be considered in the selection of luminaires and lamps for
inclusion in an energy efficient, visually-effective design:
3.2.3.1 Consider the use of more efficient equipment with appropriate
distribution, glare control and visual characteristics. Utilize fixture
designs that will provide high lighting efficiency while meeting the
other lighting objectives of the installation.
3.2.3.2 Review visual comfort probability (VCP) data, available from
manufacturers, for specific luminaires when minimizing discomfort glare
is a criterion.
3.2.3.3 Consider luminaire construction that minimizes light loss due
to dirt collection.
3.2.3.4 Investigate the use of dimmers to reduce energy consumption
when the system is new and capable of providing more light than the
average depreciated design value.
3.2.3.5 Use more efficient lamps with appropriate luminous efficacy,
life expectancy and spectrum distribution and color rendering
characteristics.
3.2.3.6 Use more efficient ballasts for fluorescent and HID lamps
with appropriate ballast factors, power factor, noise rating, starting
and restarting characteristics.
3.2.3.7 Use luminaires with heat removal and heat recovery
capabilities, thereby allowing the lighting equipment to operate more
efficiently at a lower ambient temperature.
3.2.3.8 Limit the use of lower efficiency lamps, such as
incandescent, to only those applications where their color, lumens or
distribution characteristics cannot be duplicated by other sources. Due
to their lower efficiency, the use of ''extended service'' incandescent
lamps should be limited to those applications where fixtures are
difficult to reach and/or maintenance costs for revamping will be
excessive.
3.2.4 Space Design
3.2.4.1 It is important to carry through on the lighting design when
completing the interior design. Reduce light absorption by encouraging
the use of lighter finishes, particularly on ceilings, walls and
partitions. Select colors and surface materials so that their
reflectance values are within the ranges recommended by the IES. This
will aid the efficient use of light and help to provide comfortable
luminance ratios.
3.2.4.2 In offices with visual display terminals (VDT) that are
susceptible to reflections, it may be necessary to use reflectances for
some room surfaces at the low end of the recommended ranges to reduce
unwanted reflections on the screens. Where practical, treat the screens
of VDTs with anti-glare materials to avoid veiling reflection.
10 CFR 435.103 3.3 Minimum Requirements
3.3.1 Lighting Controls.
3.3.1.1 All lighting shall be provided with manual, automatic, or
programmable controls.
3.3.1.1.1 Exception to Section 3.3.1.1:
(a) controls for emergency or exit lighting.
3.3.1.2 Minimum Number of Lighting Controls. Each space enclosed by
walls or ceiling-height partitions shall be provided with control(s)
that, together or alone are capable of controlling all lights within
that space, excluding those requiring continuous operation for security
purposes.
3.3.1.2.1 The minimum number of controls shall not be less than:
(a) One lighting control for each space; and
(b) One lighting control for each task or group of task locations
within an area of 450 ft /2/ or less.
3.3.1.2.2 Equivalent Number of Controls. The minimum number of
controls may be reduced, by using an equivalent number of controls from
Table 3.3-1, where control types listed in Table 3.3-1 are used.
However, the minimum number of controls may not be reduced to less than
one control for each 1500 W of connected lighting power.
3.3.1.2.3 Exceptions to Section 3.3.1.2:
(a) Lighting control requirements for spaces that must be used as a
whole, such as public lobbies of office buildings, hotels, and
hospitals; retail and department stores and warehouses, storerooms, and
service corridors under centralized supervision, shall be controlled by
a lesser number of controls, but not less than one control for each 1500
W of connected lighting power, or a total of three (3) controls,
whichever is greater. Lighting in such spaces shall be controlled in
accordance with the work activities.
(b) Hotel and motel guest rooms shall have one or more master
controls at the main entry door that turn off all permanently wired
lighting fixtures and lighting and television receptacles. For multiple
room suites, controls at the entry of each room, in lieu of a master
switch, will meet these requirements.
3.3.1.3 Controls provided for task areas, if readily accessible, may
be mounted as part of the task lighting luminaire.
3.3.1.4 Control of the same load from more than one location shall
not be credited as additional control points.
3.3.1.5 All lighting controls shall be readily accessible to
personnel occupying or using the space. Exceptions are automatic
controls, programmable controls, lighting for safety hazards and
security, controls requiring trained operators, and those controls for
spaces that must be used as a whole.
3.3.1.6 Exterior lighting shall be automatically controlled by timer,
photocell, or combination of timer and photocell. Timers shall be of
the automatic type or otherwise capable of adjustment for seven days and
for seasonal daylight schedule variations. All time-controllers shall
be equipped with back-up mechanisms to keep time during a four hour
power outage.
3.3.1.7 When the building is served by an energy management system,
programmable controls, shared tenant services that affect interior
environments, or ''intelligent building'' systems, provisions shall be
made to incorporate lighting controls into the system if a separate
automatically-controlled lighting system is not provided.
3.3.2 Fluorescent Lamp Ballasts.
3.3.2.1 Fluorescent lamp ballasts shall have a ballast efficacy
factor not less than that shown in Table 3.3-2.
3.3.2.1.1 Exception to 3.3.2.1: Ballasts not included in Table 3.3-2
and ballasts designed for use with dimming controls are excluded from
these criteria.
10 CFR 435.103
3.3.2.2 The Ballast Efficacy Factor shall be calculated in accordance
with Equation 3.3-1:
Where:
BEF=Ballast Efficacy Factor.
BF=Ballast Factor, expressed as a percent.
Power Input=Total Wattage of combined lamps and ballasts
3.3.2.2.1 Tests for ballast factor and power input shall be in
accordance with ANSI Standard C-82.2-1984 ''Method of Measurement for
Fluorescent Lamp Ballasts'', using ''Standard'' F40T1240A, F96T12 75
watt, or F96T12H0 110 watt lamps.
3.3.2.3 One-lamp or three-lamp fluorescent luminaires shall be
tandem-wired to eliminate unnecessary use of single lamp ballasts if
they are: used for general lighting; recess mounted within ten feet
center-to-center of each other; or pendant or surface mounted within 1
ft of each other, and within the same room. Tandem wiring consists of
pairs of luminaires operating with one lamp in a luminaire powered from
a single two-lamp ballast contained in a second luminaire.
3.3.2.3.1 Exception to Section 3.3.2.3:
(a) Three-lamp ballasts may be used.
3.3.2.4 Fluorescent lamp ballasts shall have a power factor equal to
or greater than 80%.
3.3.2.4.1 Exception to 3.3.2.4: Ballasts for circline and compact
fluorescent lamps and low wattage, high intensity discharge lamps of
less than 100 watts.
10 CFR 435.103 3.4 Lighting -- Prescriptive Compliance Alternative
10 CFR 435.103 3.4.1 Purpose
3.4.1.1 This subsection provides a prescriptive procedure for
determining an exterior lighting power allowance and the Interior
Lighting Power Allowances for illumination systems installed in six
types of new buildings. It is intended for use with buildings having
simple lighting requirements and where the minimum amount of calculation
and effort to achieve compliance is of primary concern. For other
building types, to receive credit for switching, daylighting, or other
trade-offs, or to receive credit for lighting optimization, use Section
3.5, Section 11.0, or Section 12.0.
3.4.1.2 This section also serves as the basis for calculating the
skylight area in Section 5.3.9.6, and may be used for estimating the
lighting heat gain for calculating the internal load density in Equation
5.4-1 and Section 5.5.6.2.
10 CFR 435.103 3.4.2 General
3.4.2.1 This method for compliance prescribes a total allowable Unit
Lighting Power Allowance (ULPA) for interior lighting for the building
type/area as listed in Table 3.4-1. There is no recognition of specific
makeup of spaces and activities within the building.
Insert illustration(s) 0 138
10 CFR 435.103 3.4.3 Exterior Lighting Power Allowance
3.4.3.1 Building exteriors and exterior areas, as defined in Section
3.1.2.2, and roads, grounds, parking, and other exterior areas, defined
in Section 3.1.2.3, shall have a lighting power density not to exceed
the Exterior Lighting Power Allowance (ELPA), which is the sum of the
allowances for each of the areas listed above, as calculated by Equation
3.4-1 using unit power densities from Table 3.4-2.
ELPA=S DOi UPDDi+S Ai UPDAi=S ((DO1 UPDD1 . . .+DOn UPDDn)+ (A UPDA1
. . . An UPDAn))
Where:
ELPA=Exterior lighting power allowance, in Watts.
i=numerical subscript (1,2, . . . . n) for each occurrence of
exterior openings or exterior areas of the building.
n=total number of occurrences of exterior openings or areas of the
building.
DO=Door opening, linear feet.
UPDD=Unit power density for the door, W/lin. ft, from Table 3.4-2.
UPDA=Unit power density for the area in W/ft /2/ , from Table 3.4-2.
A=Exterior area in ft2.
10 CFR 435.103 3.4.4 Interior Lighting Power Allowance
3.4.4.1 The Interior Lighting Power Allowance (ILPA) shall be
calculated using the prescriptive Unit Lighting Power Allowances (ULPA)
in Table 3.4-1. First, determine if the predominant function of the
proposed building is one of the six building types listed in Table
3.4-1. If not, Section 3.5, 11.0, or 12.0 must be used. Next, determine
whether the proposed design has secondary functions that are 10% or more
of the gross lighted area of the building and are listed in Table 3.4-1.
If so, the designer has the option of using the predominant building
function to calculate the ILPA or using the calculation method for
multiple-use buildings in Section 3.4.4.1.2 below.
3.4.4.1.1 If the proposed building has only one function, has no
secondary functions with 10% or more of the gross lighted area, or the
designer chooses to determine the ILPA based on only one function,
Equation 3.4-2 shall be used to determine the building ILPA. First,
select the appropriate building type in Table 3.4-1, and the appropriate
column for the Gross Lighted Area (GLA) of the proposed building. This
value is the Unit Lighting Power Allowance (ULPA). Determine the ILPA
by multiplying the ULPA by the GLA as shown in Equation 3.4-2.
ILPA=ULPA GLA
Where:
ILPA=Interior Lighting Power Allowance, in Watts.
ULPA=Unit Lighting Power Allowance, in W/ft /2/ ,from Table 3.4-1.
GLA=Gross Lighted Area of the Proposed Building, in ft /2/ .
3.4.4.1.2 If a building design has more than one function listed in
Table 3.4-1, such as an office building with parking and retail stores,
with more than 10% of the gross lighted area, Equation 3.4-3 may be used
to calculate the building Interior Lighting Power Allowance (ILPA).
First, determine the gross lighted area of the building (GLA) and the
gross lighted area for each qualifying secondary function (GLAf) in the
building. Select the ULPA from Table 3.4-1 under the column
corresponding to the gross lighted area of the entire proposed building
and multiply it by the gross lighted area of that function. Sum the
products to determine the building ILPA, as shown in Equation 3.4-3
below.
ILPA=ULPAp GLAp+S (ULPAi GLAi)= (ULPAp GLAp+(ULPAf1 GLAf1+ ULPAf2
GLAf2 . . . ULPAfn GLAf))
Where:
i=numerical subscript (1,2, . . . n) for each secondary function with
10% or more of the gross lighted area of the building.
n=number of secondary functions.
ILPA=Interior Lighting Power Allowance, in Watts.
ULPAp=Unit Lighting Power Allowance of the predominant function based
on the gross lighted area of the entire building, from Table 3.4-1, in
W/ft2.
ULPAf=Unit Lighting Power Allowance of qualifying secondary functions
based on the gross lighted area of the entire building, from Table
3.4-1, in W/ft2.
GLAp=Gross lighted area of the predominant function of the proposed
building.
GLAf=Gross lighted area of each qualifying secondary function.
3.4.4.3 Lighting compliance in partially defined speculative
buildings. For defined functions in partially defined speculative
buildings, the total connected lighting power shall not exceed the
interior lighting power allowance for that portion of the building.
When determining the ILPA for those cases, the gross lighted area of the
entire building must be used.
10 CFR 435.103 3.5 Lighting -- System Performance Compliance Alternative
10 CFR 435.103 3.5.1 Purpose
3.5.1.1 This subsection provides a procedure for determining the
maximum lighting power allowance for buildings, roads and grounds. It
allows the designer to take credit for the use of daylighting and other
lighting controls. It also serves as a basis for estimating the
lighting heat gain and lighting energy use for Section 5.0.
10 CFR 435.103 3.5.2 General
3.5.2.1 The total Connected Lighting Power (CLP) in a building,
including permanently installed lighting plus supplemental or task
related lighting provided by movable fixtures or plug-in luminaires,
shall not exceed the Interior Lighting Power Allowance (ILPA). A
Lighting Power Control Credit (LPCC), taken for individual spaces, may
only be utilized for credit to connected lighting power in those spaces
for which credit is claimed.
3.5.2.2 Compliance for lighting in partially defined speculative
buildings. The total connected lighting power of lighting designs of
defined areas of partially defined speculative buildings shall not
exceed the interior lighting power allowance for those areas of the
building for which lighting has been designed.
3.5.3 The Lighting Power Budget (LPB) of each interior space shall be
determined in accordance with Equation 3.5-1.
LPB=(A UPDb AF)+LPCC
Where:
LPB=Lighting power budget of the space, in watts
Ar=Area of the room at the horizontal lighted working place, ft2
UPDb=Base Unit Power Density, W/ft2, (Table 3.5-1)
AF=Area factor of the room, (Figure 3.5-1)
LPCC=Lighting Power Control Credit, as determined by 3.5.6
3.5.3.1 The room area (A) shall be calculated from the inside
dimensions of the room.
3.5.3.2 The Base Unit Power Density (UPD) shall be selected from
Table 3.5-1. For applications to areas or activities other than those
given, select values for similar areas or activities.
Insert illustration(s) 0145
Insert illustration(s) 0146
Insert illustration(s) 0147
3.5.3.3 The Area Factor (AF) shall be determined from Figure 3.5-1
based on the floor area and ceiling height of the room. Rooms with
identical ceiling height and activities, and with similar size may be
treated as a group. The AF of such a group of rooms shall be determined
from the average area of the rooms.
Equation 3.5-2 gives the formula used in developing Figure 3.5-1.
Insert Illus. 148A
Where:
AF=Area Factor
CH=Ceiling Height
Ar=Floor Area of Room, ft2
If AF<1.0 then AF=1.0 If AF 1.8 then AF=1.8
Insert illustration 0150
3.5.4 Special Spaces and Activities.
3.5.4.1 Multi-Function Rooms.
3.5.4.1.1 For rooms serving multi-functions, such as hotel
banquet/meeting rooms and office conference/presentation rooms, an
adjustment factor of 1.5 times the base UPD may be used if a
supplementary lighting system is actually installed to serve the
secondary function of the room and the design meets the following
conditions:
(a) The installed power for the supplementary system shall not be
greater than 33% of the adjusted LPB calculated for that room; and
(b) Independent controls shall be installed for the supplementary
lighting system.
3.5.4.2 Simultaneous Activities.
3.5.4.2.1 In rooms containing multiple simultaneous activities, such
as a large general office having separate accounting and drafting areas
within the same room, the LPB for the rooms shall be the weighted
average of the activities in proportion to the areas being served.
3.5.4.3 Indoor Sports.
3.5.4.3.1 The floor area of indoor sports activities areas shall be
considered as the area within the playing boundaries of the sport, plus
the floor area 10 ft beyond the playing boundaries, not to exceed the
total floor area of the indoor room less the spectator seating area.
3.5.5 Calculation of Interior Lighting Power Allowance. The system
performance Interior Lighting Power Allowance (ILPA) shall be calculated
in accordance with Equation 3.5-3. The ILPA shall include a 0.20 W/ft2
allowance for unlisted spaces.
ILPA=(LPB1 LS1+LPB2 LS2 ---- LPBn LSn)+0.2 W/ft2 (Unlisted Space)
Where:
ILPA=Interior Lighting Power Allowance, W/ft2
GLA=Gross Lighted Area, ft2
LPB=Lighting Power Budget, Watts
LS=Listed Space Area, ft2
3.5.6 Lighting Power Controls Credit and Power Adjustment Factor
3.5.6.1 When calculating the ULPA in this section, the connected
power for lights automatically controlled by daylighting sensors,
occupancy sensor, programmable timing controls, or lumen maintenance
controls may be reduced by factoring control credits on a specific area
by area basis. This credit is termed the Lighting Power Controls Credit
(LPCC) and shall be determined in accordance with Equation 3.5-4:
LPCC=CLP PAF
Where:
LPCC=Lighting Power Controls Credit, Watts
CLP=Connected Lighting Power for the luminaires controlled by the
automatic control device, Watts
PAF=Power Adjustment Factor, from Table 3.5-2
The adjusted lighting power (ALP) is then equal to CLP minus the
LPCC.
3.5.6.2 The Lighting Power Controls Credit is limited to the specific
luminaires controlled by the automatic control device.
3.5.6.2.1 Only one adjustment factor may be used for each building
space or luminaire, and 50% or more of the controlled luminaire shall be
within the applicable space to qualify for the power adjustment factor.
3.5.6.2.2 Controls shall be installed in series with the lights and
in series with all manual switching devices in order to qualify for an
adjustment factor.
3.5.6.2.3 When sufficient daylight is available, daylight sensing
controls shall be capable of reducing electrical power consumption for
lighting, continuously or in steps, to 50% or less of maximum power
consumption.
3.5.6.2.4 Daylight sensing controls shall control all luminaires to
which the power adjustment factor is applied and that direct a minimum
of 50% of their light output into the daylight zone.
3.5.6.2.5 Occupancy sensors located in daylighted spaces should be
installed in conjunction with a manual ON switch, or photocell override
for ON.
3.5.6.2.6 Programmable timing controls used for credit in conjunction
with Table 3.5-2 shall be:
insert illus. 155
(a) Programmable for different schedules for occupied and unoccupied
days;
(b) Accessible for temporary override by occupants of individual
zones, spaces or tasks, with automatic return to the original schedules;
and
(c) Capable of keeping time during power outages for a minimum of
four hours.
10 CFR 435.104Auxiliary systems and equipment.
10 CFR 435.104 4.1 General
This section contains a few minimum requirements for auxiliary
systems and equipment. Because auxiliary systems and equipment vary
greatly among buildings, the section is not more comprehensive.
10 CFR 435.104 4.2 Principles of Design
4.2.1 Energy recovery should be used when coincident thermal and
refrigeration loads of similar magnitude are expected.
4.2.2 Consideration shall be given to the use of waste heat, energy
recovery or heat tape systems to conserve energy.
10 CFR 435.104 4.3 Minimum Requirements
4.3.1 Transportation Systems.
4.3.1.1 Automatic elevator and/or conveyor systems shall incorporate
schedule controls and efficient motor controls, such as solid state
control devices.
4.3.2 Freeze Protection System.
4.3.2.1 Boilers or water heaters used for purposes such as freeze
protection in fire protection storage vessels and defrosting sidewalks
and driveways shall meet the efficiency requirements of sections 8.3 or
9.3 when they operate in excess of 750 hours per year.
4.3.3 Retail Food and Food Service Refrigeration.
4.3.3.1 Refrigeration systems containing multiple compressors shall
have compressors sized to optimally match capacity with loads.
4.3.3.2 Variable speed shall be considered.
10 CFR 435.105Building Envelope.
10 CFR 435.105 5.1 General
5.1.1 This section contains requirements for the energy conscious
design of building envelopes. It sets principles of good envelope
design, and provides a set of minimum requirements and two alternative
compliance paths -- prescriptive and system performance.
5.1.2 Compliance. A building shall be considered in Compliance with
this section if the following conditions are met:
5.1.2.1 The minimum requirements of Section 5.3 are met;
5.1.2.2 The design of the building envelope complies with either the
prescriptive criteria of Section 5.4 or the system performance criteria
of Section 5.5. For the design of buildings with high internal heat
gains, unusual operating schedules, or that incorporate innovative
design strategies, consideration shall be given to using the compliance
paths set forth in Sections 11.0 or 12.0.
5.1.3 The prescriptive compliance alternative of Section 5.4 provides
requirements for buildings designed to take advantage of perimeter
daylighting, thermal mass, high performance glazings, and fenestration
shading. The designer is allowed to make trade-offs between thermal
mass, wall insulation, amount of fenestration, shading coefficients,
shading projections, thermal transmittance of the glazing, daylighting
for several different climate locations.
5.1.4 The systems performance compliance alternative of Section 3.5
provides calculation procedures that give credit for the benefits of
more complex energy conserving envelope designs.
5.1.5 Information on thermal properties, performance of building
envelope sections and components, and heat transfer shall be obtained
from the ASHRAE Handbook, 1985 Fundamentals Volume. When information is
not available from this source, the data shall be obtained from
laboratory or field test measurements conducted in accordance with ASTM
Standard C-177-85, ''Standard Test Method for Steady-State Thermal
Transmission Properties by Means of the Guarded Hot Plate,'' ASTM
Standard C-518-85, ''Steady-State Thermal Transmission Properties by
Means of the Heat Flow Meter,'' ASTM Standard C-236-80, ''Standard Test
Method for Steady-State Thermal Performance of Building Assemblies by
Means of a Guarded Hot Box,'' and ASTM Standard C-976-82, ''Thermal
Performance of Building Assemblies By Means of a Calibrated Hot Box.''
5.1.6 Daylighting Credit. In this section, daylighting credit for
reduced energy use resulting from the use of automatic lighting control
devices in conjunction with fenestration, is given only for space
heating and cooling loads. Credit for the reduced use of electric
lighting energy is calculated in Section 3.5.6. If daylighting credit
for reduced electric lighting energy use is desired to be applied to
other building systems, such as more fenestration area, Section 11.0 or
12.0 should be used.
5.1.7 The requirements of this section are not intended to replace
building loads calculation procedures.
10 CFR 435.105 5.2 Principles of Design
10 CFR 435.105 5.2.1 Building Loads
5.2.1.1 Building loads result from sources external and internal to
the building. (1) External loads, from outdoor temperature, humidity,
wind, and insolation, fluctuate daily and seasonally. (2) Internal
loads from the activities conducted within the building, including
heating and moisture produced by the occupants, lights, and process
equipment (e.g., appliances, computers) vary with internal activities.
Improving energy efficiency in a building depends on achieving a balance
between and among the internal and external loads. The building design
should, therefore, offset gains and losses of heat, light, and moisture
between the interior and exterior of the building, among interior
spaces, and over-time, (daily, seasonally, and annually).
5.2.1.2 This balance of loads can be most efficiently achieved if the
building envelope is viewed as, and designed to be, a controlled
membrane rather than an immutable barrier. The typical design of a
modern building has considered the building envelope to be a fixed
barrier that restricts heat and air flow to the maximum extent possible.
This will not usually yield the most energy efficient building.
5.2.1.3 The desired goal of the energy design of the building
envelope shall be to produce a controlled membrane that allows or
prevents heat, light, and moisture flow to achieve a balance between
internal and external loads. Thus the envelope becomes an integral part
of the building's environmental conditioning systems.
5.2.1.4 To achieve control of the building envelope as a membrane,
and to simultaneously achieve occupant comfort in the perimeter zones,
many of the traditional building skin components must be used
(insulation, mass, caulking and weather stripping). However, other
concepts shall also be considered to temper supply air or utilize waste
heat in exhaust air to temper envelope conditions, such as operable
solar shading devices, and the integration of glazing systems with the
HVAC distribution system.
10 CFR 435.105 5.2.1.5 Control of External Loads
10 CFR 435.105 5.2.1.5.1 Control of Conduction
(a) Controlled conductivity may be considered through the careful use
of insulation, sensible (mass) or phase-change storage and movable
insulation at levels which minimizes net heating and cooling loads on a
time integrated (annual) basis.
(b) Unintentional or uncontrolled thermal bridges shall be minimized
and considered in energy related calculations since they can radically
alter the conductivity of a building envelope. Examples include wall
studs, balconies, ledges, and extensions of building slabs.
10 CFR 435.105 5.2.1.5.2 Control of Infiltration (Heat Loss or Gain)
(a) Infiltration shall be minimized and all efforts to achieve a zero
level shall be taken. This will minimize fan energy consumption in
pressurized buildings during occupied periods and heat loss (or unwanted
heat gain in warm climates) during unoccupied periods. Infiltration
reduction shall be accomplished through design details that enhance the
fit and integrity of building envelope joints in a way that may be
readily achieved during building construction. This includes
infiltration control by caulking, weather stripping, vestibule doors
and/or revolving doors with construction meeting or exceeding accepted
specifications.
(b) The quantity of mechanical ventilation must vary with the need,
with recommended values at any given time equal to that required by
ASHRAE Standard 62-1981. Higher levels of ventilation (e.g.,
economizers) shall be considered to substitute for mechanical cooling.
(c) Operable windows may be considered to allow for occupant
controlled ventilation. When using operable windows, the design of the
building's mechanical system must be carefully executed to minimize
unnecessary HVAC energy consumption, and building operators must be
cautioned about the improper use of the operable windows.
(d) Non-mechanical ventilation can be enhanced in the shape of the
building as well as the physical elements of the building envelope, such
as cupolas.
(e) For hotels and high rise dwelling units and other systems having
exhaust totalling 3000 cfm or more, with annual operation in excess of
3000 hours and within 200 linear ft of simultaneous make-up air
equipment, they shall incorporate energy recovery or treatment to ASHRAE
62-1981 quality levels and reuse exhaust air when allowed by code.
10 CFR 435.105 5.2.1.5.3 Control of Radiated Heat Losses and Gains
(a) Capability for occupant radiant comfort shall be maintained
regardless of whether the building envelope is designed to be a static
or dynamic membrane. Opaque surfaces shall be designed so that the
average inside surface temperatures will remain within 5 F of room
temperature in the coldest anticipated weather (i.e., winter design
conditions), and the coldest inside surface will remain within 25 F of
the room temperature.
(b) In a building with time-varying internal heat generation, thermal
mass may be considered for controlling radiant comfort. In the
perimeter zone, thermal mass is more effective when it is positioned
internal to the envelope insulation.
(c) The effective control of solar radiation is critical to the
design of energy-efficient buildings due to the high level of internal
heat production already present in most commercial building types. In
some climates, the lighting energy consumption savings due to
daylighting techniques can be greater than the heating and cooling
energy penalties from additional glazed surface area, provided that the
building envelope is properly designed for daylighting and lighting
controls are installed and used. In other climates they may not.
Daylighting designs are most effective if direct solar beam radiation is
not allowed to cause glare in building spaces.
(d) The transparent portions of the building envelope shall be
designed to prevent solar radiant gain above that necessary for
effective daylighting and solar heating. On south-facing facades, the
use of low shading coefficients is generally not as effective as
external physical shading devices in achieving this balance. Light
shelves offer a very effective means of admitting daylight while shading
the view glazing and simultaneously allowing occupants to manipulate
interior shading devices (draperies, blinds) without eliminating day
light.
(e) The solar spectrum contains a range of wavelengths including
visible and infrared (heat). Designers shall consider which portion of
the spectrum to admit into the building. For example, low emissivity,
high-visible-transmittance glazings may be considered for the effective
control of radiant heat gains and losses. For shading control designers
may consider the careful use of vegetation that can block excess gain,
year-around or seasonally depending on the plant species chosen.
10 CFR 435.105 5.3 Minimum Requirements
10 CFR 435.105 5.3.1 Overall Thermal Transmittance (Uo)
5.3.1.1 The overall thermal transmittance of the building envelope
above grade assembly shall be calculated as follows:
Where:
Uo=the area weighted average thermal transmittance of the gross area
of the building envelope assembly, e.g., the exterior wall assembly
including fenestration and doors; roofs and ceiling assembly; or the
floor assembly, Btu/h ft /2/ F.
Ao=the gross area of the envelope assembly, ft /2/ .
Ui=the thermal transmittance of each individual path of the envelope
assembly (see Section 5.3.2), Ui=1/Ri (where R1 is the total resistance
to heat flow of an individual path through an envelope assembly).
Ai=the area of each individual element of the envelope assembly, ft
/2/ .
10 CFR 435.105 5. 3. 2 Thermal Resistance of Below Grade Components
(R)
5.3.2.1 In calculating the thermal resistance of all below grade
components, the thermal performance of the adjacent ground shall be
excluded.
10 CFR 435.105 5.3.2.2 Slabs
5.3.2.2.1 The R-value required for slabs refers only to the
insulation materials. Insulative continuity shall be maintained in the
design of slab edge insulation systems. Continuity shall be maintained
from the wall insulation through the slab/wall/footing intersection to
the body of the slab edge insulation.
5.3.2.2.2 Slab-on-grade floors shall have insulation around the
perimeter of the floor with the thermal resistance (Ru) of the
insulation specified in accordance with Figure 5.5-2. The slab
insulation specified shall extend either in a vertical plane downward
from the top of the slab for the minimum distance shown or downward to
the bottom of the slab then in a horizontal plane beneath the slab or
outward from the building for the minimum distance shown. The
horizontal length, or vertical depth, of insulation required varies from
24 in. to 48 in. depending upon the R-value selected. For heated
slabs, an R of 2 shall be added to the thermal resistance required.
5.3.2.2.3 Vertical insulation shall not be required to extend below
the foundation footing. There are no insulation requirements for slabs
in locations having less than 3,000 HDD65 or for footings extending less
than 18 in. below grade.
5.3.2.2.4 The dimensional requirements for horizontal insulation
refers to the insulation materials only. Horizontal applications shall
have a thermal break in the slab edge that provides continuity between
the wall insulation on the slab and the horizontal insulation.
10 CFR 435.105 Below Grade Walls
5.3.2.3.1 The R-value required for Below Grade Walls refers to the
overall R-value of the wall assembly excluding air film coefficients and
the thermal performance of the adjacent ground.
10 CFR 435.105 5.3.3 Thermal Transmittance (Ui) of an Envelope Assembly
5.3.3.1 The thermal transmittance of each envelope assembly shall be
determined with due consideration of all major series and parallel heat
flow paths through the elements of the assembly. Compression of
insulation shall be considered in determining the thermal resistance.
5.3.3.2 The thermal transmittance of opaque assemblies Ui shall be
determined using a series path procedure that corrects parallel paths,
such as insulation and studs in a wall cavity or the roof assembly shown
in Figure 5.3-1. Table 5.3-1 prescribes the procedure to be used for
Subsections 5.3.3.2.1 and 5.3.3.2.2.
Insert illustration 0 169
Insert illustration 0 170
5.3.3.2.1 For envelope assemblies containing metal framing, the Ui
shall be determined by using one of the following methods:
(a) Results from laboratory or field test measurements, using one of
the procedures specified in Section 5.1.5.
(b) For non-metal surfaces attached to metal framing, where data from
tests conducted using procedures specified in Section 5.1.5, such as
those provided in Tables 5.3-2 and 5.3-3, is available, the total
resistance of the series path may be calculated using Equations 5.3-2a
and 5.3-2b, and illustrated in Figure 5.3-1:
Insert illustration 171
Insert illustration 172
Where:
Rt=the total resistance of the envelope assembly
Ri=the resistance of the series elements (for i=1 to n), excluding
the parallel path element(s)
Re=the equivalent resistance of the element containing the parallel
path, the value of Re is:
Re=(R-value of insulation) Fc
Where:
Fc=the correction factor from Table 5.3-2 or Table 5.3-3.
(c) For elements other than those covered in item (b) above, the zone
method described in Chapter 23 of the ASHRAE Handbook, 1985 Fundamentals
Volume shall be used. The equations on pages 23.13 and 23.14 shall be
used.
(d) For sheet metal construction, internally insulated with an
internal metal structure bonded on one or both sides to a metal skin or
covering (see Figure 5.3-2), the following steps shall be used to
calculate the U-value of the envelope construction.
Insert illustration 0175
(1) First, calculate the resistance of the thermal bridge RTB as
follows:
(i) Where R1, the effective mean flow path along the outer metal
surface, is calculated by:
(ii) And if it occurs, the resistance of insulation (R2) between the
outer metal surface and the metal structural member is calculated by:
(iii) And, the resistance of the structural member (R3) is calculated
by:
(iv) And if it occurs, the resistance of insulation (R4) between the
inner metal surface and the purlin flange is calculated by:
(v) And finally, the effective mean flow path along the inner metal
surface (R5) is calculated by:
Where:
L=total length
h=coefficient of heat transfer
k=thermal conductivity
T=temperature
B=total width
H=partial height
t=thickness of sheet metal
(2) Then calculate the parallel path resistance of the homogeneous
insulation RH as follows:
(3) Then obtain the overall construction resistance RC by combining
RH and RTB as two parallel resistances:
(4) Then add the inside and outside surface resistances Ri and Ru to
get the total resistance RTOT:
(5) The total area resistance mTOT is then calculated by:
(6) And finally, obtain the U-value by:
(7) Where additional resistances are introduced in the construction,
introduce them in lieu of the above (R2 and R4) resistances. An example
of this would be the calculation of both a metallic fastener and a block
of higher thermal conductivity material between the outer sheet metal
and the internal structural member as shown in Figure 5.3-3. In this
case the original R2 is re-calculated by first calculating the thermal
bridge R2TB as follows:
Insert illustration(s) 0179
(i) Where the resistance of the heads of number (N) of fasteners per
length (L), adjusting for surface resistance in common with the sheet
metal surface, is calculated by:
Where:
N=the number of fasteners in Length L
f=the function of B r for different values of the ratio r2/r1 given
in Figure 5.3-4.
r1=the radius of the fastener shank.
r2=the outer radius of the fastener head.
Insert illustration 0 181
(ii) And, the resistance of the shank of the fastener is calculated
by:
(iii) And, finally, the resistance of the connection to the internal
structural member is calculated by:
(iv) Then calculate the resistance of the block of higher thermal
conductivity material as follows:
Where:
l1l2
(v) Then obtain the resistance to be used in lieu of the original R2
by:
5.3.3.2.2 For envelope assemblies containing Non-Metal Framing, the
Ui shall be determined from one of the laboratory or field test
measurements specified in Section 5.1.5 or from the ASHRAE
series-parallel method. Formulas in Chapter 23, page 23.2 of the ASHRAE
Handbook, 1985 Fundamentals Volume, shall be used for these
calculations.
5.3.3.3 The thermal transmittance of fenestration assemblies shall be
corrected to account for the presence of sash, frames, edge effects and
spacers in multiple-glazed units.
If thermal transmittances of sash and frames are known, Equation
5.3-1 shall be used, otherwise the thermal transmittance offenestration
assemblies shall be calculated as follows:
Uof=S Ugi Ff,i Ai/Aof=
(Ug,1 Fe,1 A1+Ug,2 Ff,2 A2+...
+Ug,n Ff,n An)/Aof
Where:
Ai=area of ith fenestration assembly
i=numerical subscript (1,2,...n) refers to each of the various
fenestration assemblies present in the wall
n=the number of fenestration assemblies in the wall assembly.
Uof=the overall thermal transmittance of the fenestration assembly,
including sash and frames, Btu/h ft /2/ F.
Ug=the thermal transmittance of the central area of the fenestration
excluding edge effects, spacers in multiple-glazed units, and the sash
and frame, Btu/h ft /2/ F.
Ff,i=framing adjustment factor for sash, frames, etc.
Aof=the area of all fenestration including glazed portions, sash,
frames, etc.
5.3.3.3.1 Values for Ug shall be the winter value obtained from the
glazing manufacturer's test data or from Table 13 or Figure 14 of
Chapter 27 of the ASHRAE Handbook, 1985 Fundamentals Volume. Values for
Ff shall be obtained from the frame manufacturer's test data or from the
average adjustment factor for a particular product in Table 13, Part C,
in Chapter 27 of the ASHRAE Handbook, 1985 Fundamentals Volume. For
glass products with a U value of 0.45 or less, use the Ff for triple
insulated glazing. Alternatively, values of the Ug F product may be
used from manufacturer's test data for open window and frame assemblies
tested as a unit provided that the tests referenced edge-effects and
windspeed are accounted for winter tested U-values are used.
5.3.4 Gross Area of Envelope Components
5.3.4.1 The gross area of a roof assembly consists of the total
surface of the roof assembly exposed to outside air or unconditioned
spaces. The roof assembly shall include all roof/ceiling components
through which heat may flow between indoor and outdoor environments
including skylight surfaces, but excluding service openings.
5.3.4.1.1 For thermal transmittance purposes, when return air ceiling
plenums are employed, the roof/ceiling assembly shall not include the
thermal resistance of the ceiling, or the plenum space, as part of the
total thermal resistance of the assembly.
5.3.4.2 The gross area of a floor assembly over outside or
unconditioned space consists of the total surface of the floor assembly
exposed to the outside air or an unconditioned space. The floor
assembly shall include all floor components through which heat may flow
between indoor and outdoor or unconditioned space environments.
5.3.4.3 The gross area of exterior walls enclosing a heated or cooled
space is measured on the exterior and consists of the opaque wall
including between floor spandrels, peripheral edges of flooring, window
areas including sash and door areas, but excluding vents, grilles and
pipes.
5.3.5 Shading Coefficients
5.3.5.1 The Shading Coefficient (SC) for fenestration shall be
obtained from Chapter 27 of the ASHRAE Handbook, 1985 Fundamentals
Volume or from manufacturers' test data. For the prescriptive or system
performance envelope compliance calculations in Sections 5.4 and 5.5, a
factor, SCx, is used. SCx is the Shading Coefficient of the
fenestration, including internal and external shading devices, but
excluding the effect of external shading projections, which is
calculated separately. The shading coefficient used for louvered shade
screens shall be determined using a profile angle of 30 , as found in
Table 41, Chapter 27 of the ASHRAE Handbook, 1985 Fundamentals Volume.
5.3.6 Wall Heat Capacity
5.3.6.1 Heat capacity in Btu/ F ft /2/ , shall be determined as the
product of the average wall weight in lb/ft /2/ and the weighted average
specific heat of the wall component in Btu/lb F.
5.3.6.2 If the wall system is defined as having exterior insulation
only the properties of the wall elements inside of the insulation layer
shall be used in determining the wall heat capacity.
5.3.6.3 For walls with integral insulation, all of the elements of
the entire wall system may be used in the calculation of the wall heat
capacity.
5.3.7 Air Leakage and Moisture Migration
5.3.7.1 The requirements of this subsection apply only to those
locations separating the outdoors from interior building conditioned
space. Compliance with the criteria for air leakage through building
components shall be determined by ASTM E 283-1984, ''Standard Method of
Test Rate of Air Leakage Through Exterior Windows, Curtain Walls and
Doors.''
5.3.7.2 Air Leakage Requirements for Fenestration and Doors
5.3.7.2.1 Fenestration meeting the following standards for air
leakage is acceptable:
(a) ANSI/AAMA 101-85, ''Aluminum Prime Windows.''
(b) ASTM D-4099-83, ''Specifications for Poly(VinylChloride) (PVC)
Prime Windows.''
(c) ANSI/NWMA I.S. 2-80, ''Wood Window Units (Improved Performance
Rating Only).''
5.3.7.2.2 Sliding Doors shall meet one of the following standards for
air leakage:
(a) ANSI/AAMA 101-85, ''Aluminum Sliding Glass Doors.''
(b) NWMA I.S. 3-83, ''Wood Sliding Patio Doors.''
5.3.7.2.3 Commercial entrance swinging or revolving doors shall limit
air leakage to a rate not to exceed 1.25 cfm/ft2 of door area, at
standard test conditions.
5.3.7.2.4 Residential swinging doors shall limit air leakage to a
rate not to exceed 0.5 cfm/ft2 of door area, at standard test
conditions.
5.3.7.2.5 Where spaces have regular high volume traffic through the
building envelope, such as retail store entrances and loading bays,
estimates of air leakage for HVAC system design shall be based on air
exchange by traffic flow.
5.3.7.2.6 To reduce infiltration due to stack-effect draft in
multi-story buildings, the use of vestibules or revolving doors on all
primary entries and exits shall be considered.
5.3.7.3 Air Leakage Requirements for Exterior Envelope Joints and
Penetrations.
5.3.7.3.1 Exterior joints, cracks, and holes in the building
envelope, such as those around window or door frames, between wall and
foundation, between wall and roof, through wall panels at penetrations
of utility services or other service entry through walls, floors, and
roofs, between wall panels, particularly at corners and changes in
orientation, between wall and floor, where floor penetrates wall, around
penetrations of chimney, flue vents, or attic hatches, shall be caulked,
gasketed, weather stripped, or otherwise sealed.
5.3.7.4 Moisture Migration Requirements for Exterior Envelopes
5.3.7.4.1 The building envelope shall be designed to prevent moisture
migration that leads to deterioration in insulation performance of the
building.
5.3.7.4.2 Vapor retarders shall be considered to prevent moisture
from collecting within the envelope. Designs should incorporate the
principles of ASHRAE Handbook, 1985 Fundamentals Volume, Chapter 21,
''Moisture in Building Construction.''
5.3.8 Shell Buildings
5.3.8.1 The following conditions shall be assumed if determination of
building envelope compliance occurs prior to the determination of
lighting power density, equipment power density, or fenestration shading
device characteristics:
5.3.8.1.1 Lighting Power Density and Equipment Power Density. For
Section 5.4, the total power density shall be assumed to be those listed
in Table 5.3-4. For Section 5.5, the values in Table 5.3-4 shall be
assumed to be apportioned as 2/3 lighting and 1/3 for other equipment.
Note that these are not recommended design values, but are for
compliance purposes only.
Insert illus. 190
5.3.8.1.2 Fenestration shading devices. Only those shading devices
that are part of the design when it is being evaluated for compliance
shall be considered when determining compliance.
5.3.8.1.3 Daylighting controls for electric lighting. Only those
controls that are part of the design when it is being evaluated for
compliance shall be considered when determining compliance.
5.3.9 Buildings Located in Climates With Greater Than 15,000 HDD Base
65 F.
5.3.9.1 For locations with a heating degree-day base (HDD) 65 oF
greater than 15,000, the envelope criteria listed in Table 5.3-5 shall
apply, and the window wall ratio (WWR) shall be less than or equal to
0.20.
Insert illustration 0191
5.3.10 Daylight Credits for Skylights.
5.3.10.1 Skylights used in conjunction with automatic lighting
controls for daylighting can significantly reduce the lighting energy
consumption, thereby more than offsetting the increase in envelope heat
transfer.
5.3.10.2 When determining building roof compliance, daylight credits
for skylights may be used if the criteria of this subsection are met.
5.3.10.3 Skylights for which daylight credit is taken may be excluded
from the calculation of the overall thermal transmittance value (Uor) of
the roof assembly, if all of the following conditions are met:
5.3.10.3.1 The opaque roof thermal transmittance Uor value does not
exceed the value determined within the selected Alternate Component
Package (ACP) table for the prescriptive method or by Equation 5.5-1 for
the systems performance method.
5.3.10.3.2 Skylight areas, including framing, as a percentage of the
roof area do not exceed the values specified in Tables 5.3-6A and 5.3-6B
for building sites located within the climate ranges listed in the two
Tables, where Visible Light Transmittance (VLT) is the transmittance of
a particular glazing material over the visible portion of the solar
spectrum. Skylight areas shall be interpolated between visible light
transmittance values of 0.75 and 0.50, only.
Insert illustration 0193
Insert illustration 0194
5.3.10.3.3 The skylight area associated with daylight credit can be
taken is the area under each skylight whose dimension in each direction
(centered on the skylight) is equal to the skylight dimension in that
direction plus a distance equal to the floor to ceiling height.
5.3.10.3.4 Skylight areas that overlap areas that have already taken
daylight credit (perimeter window areas or other skylight areas) do not
again take daylight credit.
5.3.10.3.5 All electric lighting fixtures within skylight areas are
controlled by daylight-activated automatic lighting controls.
5.3.10.3.6 For buildings located in climates that have less than 8000
HDD65, the overall thermal transmittance of the skylight assembly,
including framing, is less than or equal to 0.7 Btu/h ft /2/ F. For
locations greater than 8000 HDD65, the overall thermal transmittance of
the skylight assembly, including framing, is less than or equal to 0.45
Btu/h ft /2/ F.
5.3.10.3.7 Skylight curbs have thermal transmittance (U) values no
greater than 0.21 Btu/h ft /2/ F.
5.3.10.3.8 The infiltration coefficient of the skylights does not
exceed 0.05 cfm/ft /2/ .
5.3.10.4 Skylight areas in Tables 5.3-6A and 5.3-6B may be increased
by 50% if a shading device is used that blocks over 50% of the solar
gain during the peak cooling design condition.
5.3.10.5 Areas for vertical glazing in clerestories and roof monitors
shall be included in the wall fenestration calculation.
5.3.10.6 For shell buildings, the permitted skylight area from Tables
5.3-6A and 5.3-6B shall be based on a light level of 30 fc and a
lighting power density (LPD) of less than 1 W/ft /2/ .
5.3.10.7 For speculative buildings, the permitted skylight area from
Tables 5.3-6A and 5.3-6B shall be based on the unit lighting power
allowance from Table 3.4-1 and an illuminance level as follows:
5.3.10.7.1 For LPD less than or equal to 1.0 W/ft /2/ , use 30 fc;
5.3.10.7.2 For LPD greater than 1.0 W/ft /2/ and less than 2.5 W/ft
/2/ , use 50 fc; and
5.3.10.7.3 For LPD greater than 2.5 W/ft /2/ , use 70 fc.
5.3.10.8 Buildings with roof assembly devices that cannot be
evaluated under this subsection shall be evaluated using the Building
Energy Compliance Methods of Section 11.0 or 12.0.
10 CFR 435.105 5.4 Building Envelope -- Prescriptive Compliance
Alternative
5.4.1 General.
5.4.1.1 This section provides a simple compliance path using
precalculated prescriptive requirements for selected exterior envelope
configurations of new buildings.
5.4.1.2 The Alternate Component Packages (ACP), found in this
subsection, provide design criteria for use with the following options:
5.4.1.2.1 ''Base Case'' -- buildings with envelopes designed without
perimeter daylighting.
5.4.1.2.2 ''Perimeter Daylighting'' -- buildings with envelopes that
use additional fenestration area by incorporating automatic lighting
controls in the perimeter zone to permit the use of daylighting in lieu
of electric lighting. This ACP is not available for those climates that
do not usually require space cooling by means of mechanical
refrigeration.
(a) This daylighting credit is in addition to the increased lighting
power allowance provided in Section 3.5. Some perimeter daylighting
options allow a greater proportion of fenestration area due to the
increased visible and decreased thermal transmittances of high
performance glazings in combination with automatic lighting controls.
5.4.1.3 Each ACP provides a limited number of complying combinations
of building variables for a set of climate ranges. The criteria, such
as maximum percent fenestration, were calculated using the system
performance criteria of Section 5.5. Values were chosen from within
climate and other variable ranges for the most restrictive results, to
ensure compliance of any combination of values within those ranges.
Thus, for most climate locations and envelope parameters, the
prescriptive criteria may be slightly more stringent than the system
performance criteria of Section 5.5.
5.4.1.4 Both the base and perimeter daylight cases have two or three
fenestration U-value ranges depending on the climate.
5.4.2 Compliance.
5.4.2.1 The envelope design of the building being evaluated is in
compliance with the prescriptive criteria of this section provided that:
5.4.2.1.1 The minimum requirements of Section 5.3 are met.
5.4.2.1.2 All envelope thermal transmittance (U) values are less than
or equal to those chosen from the ACP Table selected for roofs, opaque
walls, walls next to unconditioned spaces, and floors over unconditioned
spaces.
5.4.2.1.3 The percentage of fenestration of the combined gross wall
area is less than or equal to the value permitted for internal load
range and glazing in the selected ACP Table.
5.4.2.1.4 Slab-on-grade floors have insulation around the perimeter
of the floor with the thermal resistance (Ru) of the insulation as
listed in the ACP table. The slab insulation specified shall extend
either in a vertical plane downward from the top of the slab for the
minimum distance shown or downward to the bottom of the slab then in a
horizontal plane beneath the slab or outward from the building for the
minimum distance shown. The horizontal length, or vertical depth, of
insulation required varies from 24 in. to 48 in. depending upon the
R-value selected. For heated slabs, an R of 2 shall be added to the
thermal resistance required.
(a) Vertical insulation shall not be required to extend below the
foundation footing.
(b) There are no insulation requirements for slabs in locations
having less than 3,000 HDD65 or for footings extending less than 18 in.
below grade.
5.4.2.1.5 The thermal resistance of the below-grade wall assembly
must be greater than or equal to that listed in the ACP table, or the
heat loss calculated in accordance with Chapter 25 of the ASHRAE
Handbook, 1985 Fundamentals shall be less than or equal to that of a
wall below grade having a thermal resistance equal to that specified in
Figure 5.5-3. No insulation is required for climates with less than
3,000 HDD65 or for those portions of walls more than one story below
grade.
5.4.3 Procedure for Using the Alternate Component Packages (ACP).
5.4.3.1 The prescriptive envelope criteria for each of 30 climate
ranges are contained in Tables 5.4-2 through 5.4-31.
5.4.3.2 The following steps shall be used to determine compliance
with these prescriptive envelope criteria.
5.4.3.2.1 Determine appropriate climate range using either (a) or (b)
below.
(a) From Table 5.4-1, select the appropriate ACP Table based on the
climate for the building site. The main climate variables that are
needed for the proper selection of an ACP Table are cooling degree-days
base 65 F (CDD65), heating degree-days base 50 F (HDD50), and annual
average daily incident of solar radiation on the east or west vertical
surface of the facade, Btu/ft /2/ /day (VSEW). For certain climate
ranges this must be augmented by cooling degree-hours base 80 F
(CDH80).
(1) This data, for a specific building location, may be acquired from
the U.S. Weather Service of the National Oceanic and Atmospheric
Administration or the local weather bureau. The column designated ''ACP
Table No.'' in Table 5.4-1 contains the table number of the appropriate
ACP Table.
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(b) From the list of cities in Appendix 5A, ''List of Cities and
Climate Data'', which contains data for 234 cities, select the closest
city climatologically to the building site. If the site is not one of
the cities listed or if the climate at the site differs significantly
from a listed adjacent city, obtain the information from the weather
bureau or other reliable source and use (a) above. The column
designated ''ACP Table No.'' contains the table number of the
appropriate ACP Table.
(c) For information purposes only, the climate data used to develop
the ACP tables for the above-grade wall section are shown in Table
5.4-32. The criteria for all other envelope sections was based on the
most stringent level for the cities listed in the ACP Table.
5.4.3.2.2 Determination of Maximum Allowable Percent Fenestration.
(a) Using the appropriate ACP Table, determine the maximum allowable
percent fenestration. The maximum allowable percent fenestration is the
total area of fenestration assemblies divided by the total gross
exterior wall area, considering all elevations of the building.
Determining the maximum allowable percent fenestration requires the
following five steps:
(1) Based on the Internal Load Density (ILD) for the proposed design,
select one of the three Internal Load Ranges as the point of entry to
the tables. Note for ILD's greater than 3.5 W/ft /2/ use the 3.5 W/ft
/2/ range. For shell buildings, see procedures in Section 5.3.8.
Determine the ILD of the proposed design, based on the sum of the
Internal Lighting Power Allowance (ILPA), the Equipment Power Density
(EPD) and Occupant Load Adjustment (OLA), as shown in Equation 5.4-1.
ILD=ILPA+EPD+OLA
Where:
The Internal Lighting Power Allowance (ILPA) shall be:
1. The building average Internal Lighting Power Allowance (ILPA) of
the design building in W/ft /2/ as determined in Section 3.4 or 3.5;
2. The average of the Lighting Power Budgets (LPB) for all activity
areas within 15 ft of each exterior wall based on the procedures
specified by the Systems Performance Criteria of Section 3.5.3, or
3. The actual lighting power density of the proposed design in W/ft
/2/ , either the building average or the average of the lighting power
within 15 ft of each exterior wall.
Note. -- The lighting prescriptive path, Section 3.4, does not
provide lighting values for health, assembly, multi-family high rise,
and hotel/motel buildings type occupancies. Use the 1.51 to 3.0 range
of Internal Load Density for health and assembly buildings; and the 0
to 1.5 range for multi-family high rise and hotel/motel buildings.
The Equipment Power Density (EPD) shall be either:
1. The building average receptacle power density selected from Table
5.4-33 in W/ft /2/ ; or
insert illus. 235
2. The actual average receptacle power density for all activity areas
within 15 ft of each exterior wall in W/ft /2/ , considering diversity.
For determining compliance in Tables 5.4-2 through 5.4-31, the actual
average receptacle power densities calculated by this method that exceed
1.0 W/ft /2/ shall be limited to 1.0 W/ft /2/
in Equation 5.4-1.
The Occupant Load Adjustment (OLA) shall be either:
1. 0.0 W/ft /2/ . This recognizes the assumed occupant sensible load
of 0.6 W/ft /2/ that is built into the ACP tables; or
2. A positive or negative difference between the actual occupant load
and 0.6 W/ft /2/ if the design building has a larger or smaller occupant
load.
(2) Select external shading projection factor (PF). If no external
shading projections are used in the proposed design, select the column
designated Projection Factor=0.000^0.249. If external shading
projections are used, determine the average area weighted projection
factor on the window in accordance with Equation 5.4-2. Then select the
appropriate column in the ACP Table.
Where:
PF=Average area weighted projection factor
Pd=External horizontal shading projection depth, in. or ft
H=Sum of height of the fenestration and the distance from the top of
the fenestration to the bottom of external shading projection in units
consistent with Pd.
(3) Select the Shading Coefficient of the fenestration (SCx)
including internal, integral, and external shading devices, but
excluding the effect of external shading projections (PF). This
includes curtains, shades, or blinds. Reference ASHRAE Handbook, 1985
Fundamentals Volume, Chapter 27.
(4) Select one of the daylighting options, either:
1. Base Case, no daylighting; or
2. Perimeter Daylighting (automatic daylight controls for lighting
system must be used). This option is not available in some locations.
(5) Select appropriate fenestration type. For most options, this is
determined by the thermal transmittance value (Uof) of the fenestration
assembly. For some fenestration options, the visible light
transmittance (VLT) of the fenestration should not be less than the
shading coefficient of the glazed portion of the fenestration assembly,
not considering any shading devices. The ranges generally correspond to
single glazing, double glazing, triple glazing and high performance
glazing incorporating low emissivity coatings/films or more than two
glazing layers. Each ACP table includes at most, three ranges of
glazing U-value.
5.4.4.2.3 Determine the Maximum Uow for the Opaque Wall Assembly. In
the appropriate ACP Table the Maximum Uow for the opaque wall assembly
is determined using the following steps:
(a) For a lightweight wall assembly, heat capacity (HC) less than 5
Btu/ft /2/ F, use the value indicated. This Uow is constant over all
internal load ranges.
(b) To use the mass wall adjustment, the following additional steps
are necessary:
(1) Select the same internal load range as that used in determining
the maximum allowable percent fenestration.
(2) Select the mass wall heat capacity (HC) and insulation position.
If the wall insulation is positioned internal to or integral with the
wall mass, use the column headed Interior/Integral Insulation. If the
wall insulation is positioned external to the wall mass use the column
headed Exterior Insulation. For HC less than 5 Btu/ft /2/ F this
adjustment table cannot be used. At this step you will have two choices
of Uow that are keyed to a small or large percent fenestration. This
represents the full range of Uow values allowed.
(3) Select or interpolate the appropriate maximum Uow for the opaque
wall based on the maximum allowable percent fenestration determined in
Section 5.4.4.2.2 or the actual building percent fenestration whichever
value is lower. The Uow shall be determined by straight line
interpolation for fenestration percentages between the smallest and
largest values listed. If the design building percentage fenestration
is less than the smallest value listed, select the Uow for the largest
percentage fenestration listed.
5.4.4.2.4 Determine Other Envelope Criteria. In each ACP table, the
criteria for roof, wall adjacent to unconditioned space, wall below
grade (first story only), floor over unconditioned space, and
slab-on-grade floors, shall be met. For heated slabs on grade, the
R-value shall be the R-value for the unheated slab-on-grade plus 2.0.
For skylights, the daylight credit procedure presented in Section 5.3.10
shall be used.
10 CFR 435.105 5.5 Building Envelope -- System Performance Compliance
Alternative
5.5.1 Roof Thermal Transmittance Criteria
5.5.1.1 Any building that is heated and/or mechanically cooled shall
have an overall thermal transmittance value (Uor) for the gross area of
the roof assembly not greater than the value determined by Equation
5.5-1. The provisions of Section 5.3 shall be followed in determining
acceptable combinations of materials that will meet the required Uor
values of Equation
5.5-1.
Uo=1/(5.3+1.8 10- /3/ HDD65+1.3 10^3
CDD65+2.6 10^4 CDH80)
5.5.1.2 Equation 5.5-1 applies only for climate locations with HDD65
less than or equal to 15,000. For climate locations with HDD65 greater
than 15,000, see subsection 5.3.9, Table 5.3-5.
5.5.1.2.1 Exceptions to Section 5.5.1.2:
(a) any building that is only heated shall have an overall thermal
transmittance value (Uor) for the gross area of the roof assembly less
than or equal to the value determined by Equation 5.5-1 with CDD65 and
CDH80 set equal to zero; and
(b) any building that is only mechanically cooled shall have an
overall thermal transmittance value (Uor) for the gross area of the roof
assembly less than or equal to the value determined by Equation 5.5-1
with HDD65 set equal to zero.
5.5.2 Floor Thermal Transmittance Criteria
5.5.2.1 The floors of any building that is heated and/or mechanically
cooled shall meet the following thermal criteria:
5.5.2.1.1 Floors of conditioned spaces over unconditioned spaces
shall have a thermal transmittance (Uof) not greater than that specified
in Figure 5.5-1.
Insert illustration 0241
5.5.2.1.2 Slab-on-grade floors shall have insulation around the
perimeter of the floor with the thermal resistance (Ru) of the
insulation as specified in Figure 5.5-2. The insulation specified in
Figure 5.5-2 shall extend either in a vertical plane downward from the
top of the slab for the minimum distance shown or downward to the bottom
of the slab for the minimum distance shown then in a horizontal plane
beneath the slab. The horizontal length, or vertical depth, of
insulation required varies from 24 in. to 48 in. depending upon the
R-value selected. For heated slabs, an R of 2 shall be added to the
thermal resistance required in Figure 5.5-2.
Insert illustration 0243
(a) Vertical insulation is not required to extend below the
foundation footing. There are no insulation requirements for slabs in
locations having less than 3,000 HDD65 for footings extending less than
18 in. below grade.
5.5.3 Thermal Transmittance Criteria For Opaque Walls Enclosing
Conditioned Spaces Exposed to Interior Unconditioned Spaces
5.5.3.1 All opaque walls enclosing conditioned spaces exposed to
interior unconditioned spaces shall have an overall thermal
transmittance (Uow) not greater than the value specified in Figure
5.5-3.
Insert illustration 0244
10 CFR 435.105 5.5.4 Thermal Resistance Criteria for Exterior Wall
Insulation Below Grade
5.5.4.1 The thermal resistance (R) of the wall assembly shall be
greater than, or equal to the insulation level specified in Figure
5.5-4, or the heat loss calculated in accordance with Chapter 25 of the
ASHRAE Handbook, 1985 Fundamentals Volume shall be less than, or equal
to that of a wall below grade having a thermal resistance equal to that
specified in Figure 5.5-4. No insulation is required for climate
locations with less than 3,000 HDD65 for those portions of walls more
than one story below grade.
Insert illustration 0246
10 CFR 435.105 5.5.5 External Wall Criteria for Heating and Cooling
5.5.5.1 The external wall heating criteria (WCh) and cooling criteria
(WCc) represent limits on cumulative annual heating and cooling energy
flux attributable to transmission and solar gain. These limits
accommodate variation in internal load and wall heat capacity. They
shall be determined for a building envelope design using Equations 5.5-2
and 5.5-6 in Attachment 5B, ''Equations to Determine External Wall
Heating and Cooling Criteria (WCc and WCh) and to Determine Compliance
(Ci and Hi) With the Criteria.''
10 CFR 435.105 5.5.6 Wall Heating and Cooling Compliance Values
5.5.6.1 The wall heating compliance value Hi and the wall cooling
compliance value Ci are estimates of the cumulative annual heating and
cooling energy flux attributable to heat transmission and solar gains.
These estimates consider the effects of variations in internal load and
wall heat capacity. They shall be calculated using Equations 5.5-2 and
5.5-6 in Attachment 5B.
10 CFR 435.105 5.5.6.3 Applying the Criteria
5.5.6.3.1 The wall criteria shall be applied as follows:
(a) For all buildings that are heated and mechanically cooled, the
sum of the calculated wall heating and cooling compliance values, Hi and
Ci, for all orientations of the proposed design, as determined in
Section 5.5.6, shall not exceed the sum of the corresponding wall
criteria for all orientations for wall heating (WCh) and wall cooling
(WCc).
(b) For buildings that are only heated, the sum of the calculated
wall heating compliance values, Hi, for all orientations of the proposed
design, as determined in Section 5.5.6, shall not exceed the sum of the
corresponding wall heating criterion WCh for all orientations.
(c) For buildings that are only mechanically cooled, the sum of the
calculated cooling compliance values, Ci, for all orientations of the
proposed design, as determined from Section 5.5.6, shall not exceed the
sum of the corresponding wall cooling criteria, WCc for all
orientations.
10 CFR 435.105 5.5.6.4 Constraints on Thermal Transmittance Values
5.5.6.4.1 The compliance calculation procedure in Section 5.5.6.3
allows great flexibility in selecting values for envelope components as
long as the overall criteria are met. In calculating compliance, two
constraints are imposed on thermal transmittance values for opaque wall
assemblies and fenestration assemblies comprising the Uo term, as
follows:
(a) Opaque Wall Assemblies: The opaque portion of walls with heat
capacity (HC) less than 7 Btu/ft2 F shall have an overall thermal
transmittance (Uow) not greater than the value specified in Figure
5.5-4. Procedures, specified in Section 5.3, shall be used to determine
acceptable combinations of materials that meet the required value.
(b) Fenestration Assemblies: The overall thermal transmittance (Uof)
of fenestration assemblies shall not exceed 0.81 Btu/h ft /2/ F for
all locations with more than 3000 HDD65 if the fenestration area exceeds
10% of the total wall area exposed to the outside air. Thermal
transmittance for the fenestration shall be determined using the
calculation procedures in Section 5.3.1 and shall include the effects of
sash, frames, edge effects, and spacers for multiple-glazed units.
10 CFR 435.105 5.5.6.5 Constraint on Daylighting Credit
5.5.6.5.1 For a given orientation, daylight credit may be used in
Equations 5.5-2 and 5.5-6 only for that portion of the fenestration that
is less than or equal to 65% of the gross wall area of the orientation.
10 CFR 435.105 5.5.6.6 Lighting Power Density
5.5.6.6.1 The Lighting Power Density used in calculating the
compliance value shall be:
(a) The building average unit Interior Lighting Power Allowance of
the proposed design in W/ft /2/ as specified in Section 3.0;
(b) The average of the Lighting Power Budgets for all activity areas
within 15 ft of each exterior wall based on the procedures set forth in
Section 5.3; or
(c) The actual lighting power density of the proposed design in W/ft
/2/ , either building average or average of the lighting power within 15
ft of each exterior wall.
10 CFR 435.105 5.5.6.7 Equipment Power Density
5.5.6.7.1 The equipment power density used in determining compliance
shall be either:
(a) The ''Average Receptacle Power Densities'' from Table 5.4-32, or
(b) The actual average Equipment Unit Power Density, considering
diversity, either building average or average in the activity areas
within 15 ft of each exterior wall, not to exceed 1 W/ft /2/ .
10 CFR 435.105 5.5.6.8 Occupancy Loads
5.5.6.8.1 An occupancy load of 0.6 W/ft /2/ is assumed. If the
occupancy loads in the building design are different from this value,
use the larger value.
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10 CFR 435.105 Attachment 5C to 435.105 Bibliography
1. Pacific Northwest Laboratory. October, 1983. Recommendations for
Energy Conservation Standards and Guidelines for New Commercial
Buildings. For Building System Division, Assistant Secretary,
Conservation and Renewable Energy, U.S. Department of Energy. (Contract
No. DE-AC06-76RLO 1830). The report is issued in 4 volumes consisting
of 40 separate publications (PNL-4870-1 through PNL-4870-40). The
publications most pertinent to the envelope analysis are cited below:
Volume 2: Description of the Development Process; Appendix A:
Envelope Research Documentation.
Volume 3: Description of the Testing Process; Appendix B: Envelope
Compliance Code Documentation.
Volume 4: Documentation of Test Results: (Each in 3 volumes): A:
Small Office Building (Branch Bank); B: Medium Office Building; C:
Large Office Building; D: Retail Store (Anchor Store); E: Strip
Store; F: Apartment House; G: Hotel; H: Warehouse; I: Assembly
Building (Church); J: School.
2. Jones, Jerold, W., Special Project 41: ''Development of
Recommendations to Upgrade ASHRAE Standard 90A-1980. 'Energy
Conservation in New Building Design''', ASHRAE Journal. October, 1983.
3. Wilcox, B., A. Gumerlock, C. Barnaby, R. Mitchell, and C.
Huizenga, Berkeley Solar Group. December 1985. ''The Effects of
Thermal Mass Exterior Walls on Heating and Cooling Loads in Commercial
Buildings: A Procedure for Calculations in ASHRAE Standard 90.''
Proceedings, Thermal Performance of the Exterior Envelopes of Buildings
III. ASHRAE/DOE/BTECC, pp 1187-1224, Clearwater Beach, Florida.
4. Hirsch, James J. December 1982. ''Simulation of HVAC Equipment
in the DOE-2 Program.'' Energy and Environment Division, Lawrence
Berkeley Laboratory, University of California. LBL-14026. DOE Contract
DE-AC03-76SF00098.
5. Johnson, R., D. Arasteh, D. Connell and S. Selkowitz. ''The
Effect of Daylighting Strategies on Building Cooling Loads and Overall
Energy Performance.'' Windows and Daylighting Group, Lawrence Berkeley
Laboratory, University of California. LBL-20374.
6. D. Arasteh, R. Johnson, S. Selkowitz and D. Connell. September
1985. ''Cooling Energy and Cost Savings with Daylighting in a Hot and
Humid Climate.'' Applied Science Division, Lawrence Berkeley Laboratory,
University of California. LBL-19734. DOE Contract DE-AC03-76SF00098.
7. Sullivan, R., Y.J. Huang, J. Bull, I. Turiel, R. Ritschard and
S. Selkowitz. April 1985. ''Thermal Analysis of Buildings --
Configuration Perturbations and Observed Climate Interface.'' Applied
Science Division, Lawrence Berkeley Laboratory, University of
California. LBL-19383. DOE Contract DE-AC03-76SF00098. ASHRAE
Transactions, Vol. 92, Part 1, 1986.
8. Johnson, R., D. Arasteh, and S. Selkowitz. March, 1985. ''Energy
Reduction Implications of Fenestration,'' Applied Science Division,
Lawrence Berkeley Laboratory, University of California. LBL-19304. DOE
Contract DE-AC03-76SF00098.
9. Selkowitz, S. October 1984. ''Influence of Windows on Building
Energy Use.'' Applied Science Division, Lawrence Berkeley Laboratory,
University of California. LBL-18663. DOE Contract DE-AC03-76SF00098.
10. Johnson, R., R. Sullivan, S. Selkowitz, S. Nozaki, C. Conner
and D. Arasteh. 1984. ''Glazing Energy Performance and Design
Optimization with Daylighting.'' Energy and Buildings, 6 (1984) pp.
305-317.
11. Selkowitz, S., D. Arasteh, and R. Johnson. July 1984. ''Peak
Demand Savings from Daylighting in Commercial Buildings.'' Applied
Science Division, Lawrence Berkeley Laboratory, University of
California. LBL-18126. DOE Contract DE-AC03-76SF00098.
12. Johnson, R., S. Selkowitz, and R. Sullivan. April 1984. ''How
Fenestration Can Significantly Affect Energy Use in Commercial
Buildings.'' Energy Efficient Buildings Program, Lawrence Berkeley
Laboratory, University of California. LBL-17330. DOE Contract
DE-AC03-76SF00098.
13. Sullivan, R., S. Nozaki, R. Johnson, and S. Selkowitz. October
1983. ''Commercial Building Energy Performance Analysis Using Multiple
Regression Procedures.'' Applied Science Division, Lawrence Berkeley
Laboratory, University of California. LBL-16645. DOE Contract
DE-AC03-76SF00098.
14. September 1983. ''Data Base Definition and Procedural Guidelines
for Building Envelope Thermal and Daylighting Analysis in Support of
Recommendation to Upgrade ASHRAE/IES Standard 90.'' Applied Science
Division, Lawrence Berkeley Laboratory, University of California.
LBID-801. DOE Contract DE-AC03-76SF00098.
15. Johnson, R., R. Sullivan, S. Nozaki, S. Selkowitz, C. Conner,
and D. Arasteh. September 1983. Building Envelope Thermal and
Daylighting Analysis In Support of Recommendations to Upgrade ASHRAE/IES
Standard 90 -- Final Report. Applied Science Division, Lawrence
Berkeley Laboratory, University of California. LBLl-16770. DOE
Contract DE-AC03-76SF00098.
16. Selkowitz, S., S. Choi, R. Johnson and R. Sullivan. 1983.
''The Impact of Fenestration on Energy Use and Peak Loads in Daylighted
Commercial Buildings.'' Progress in Passive Solar Energy Systems,
Copyright 1983. (0731-8626/83).
17. Choi, S., R. Johnson and S. Selkowitz. 1984. ''The Impact of
Daylighting on Peak Electrical Demand.'' Energy and Buildings, 6 (1984)
pp. 387-399.
18. Selkowitz, S. and F. Winkelmann. May 1983. ''New Models for
Analyzing the Thermal and Daylighting Performance of Fenestration.''
Energy Efficient Buildings Program, Lawrence Berkeley Laboratory,
University of California. LBL-14517. DOE Contract DE-AC03-76SF00098.
19. Selkowitz, S., J. J. Kim, M. Navvab and F. Winkelmann. June
1982. ''The DOE-2 and Superlite Daylighting Programs.'' Applied Science
Division, Lawrence Berkeley Laboratory, University of California.
LBL-14569. DOE Contract DE-AC03-76SF00098.
20. Johnson, R., S. Selkowitz, F. Winkelmann, and M. Zenter.
October 1981. ''Glazing Optimization Study for Energy Efficiency in
Commercial Office Buildings.'' Energy Efficient Buildings Program,
Lawrence Berkeley Laboratory, University of California. LBL-12764. DOE
Contract DE-AC03-76SF00098.
21. Arasteh, D., Johnson, R., Selkowitz, S., and Sullivan R. 1985.
''Energy Performance and Savings Potential with Skylights.'' ASHRAE
Transactions, Vol. 91, Part 1.
22. Arasteh, D., Johnson, R., and Selkowitz, S. May 1985. The
Effects of Skylight Parameters on Daylighting Energy Savings, Applied
Science Division. Lawrence Berkeley Laboratory, University of
California, LBL-17456. DOE Contract DE-AC03-76SF00098.
23. Crawley, D.B., Briggs, R.S., December 1985. Envelope Design
Implications of ASHRAE Standards 90.1P: A Case Study View, Proceedings,
Thermal Performance of the Exterior Envelope of Buildings III,
ASHRAE/DOE/BTECC, Clearwater Beach, FL. Pacific Northwest Laboratory,
Richland, WA. DOE Contract DE-AC06-76RLO-1830.
10 CFR 435.106Electric power and distribution.
10 CFR 435.106 6.1 General
6.1.1 This section contains minimum requirements for all building
electrical systems, except required emergency systems.
6.1.2 A building shall be considered in compliance with this section
if the minimum requirements of Section 6.3 are met.
10 CFR 435.106 6.2 Principles of Design
6.2.1 Electric Distribution Systems
6.2.1.1 Transformers and generating units shall be sized as close as
possible to the actual anticipated load (i.e., oversizing is to be
avoided so that fixed thermal losses are minimized).
6.2.1.2 Distribution of electric power at the highest practical
voltage and load selection at the maximum power factor consistent with
safety shall be considered. The use of distribution system transformers
shall be minimized.
6.2.1.3 Tenant submetering can be one of the most cost-effective
energy conservation measures available. A large portion of the energy
use in tenant facilities occurs simply because there is no economic
incentive to conserve.
10 CFR 435.106 6.3 Minimum Requirements
6.3.1 Electrical Distribution System
6.3.1.1 All commercial or multi-family high rise residential
buildings, having designed connected electric service over 250 kVA,
shall have electrical energy consumption check metered on the basis of
usage category or tenant occupancy, depending on conditions defined
below. For buildings that are occupied by multiple tenants, the
metering shall be per tenant, if the tenant has a connected load of 100
kVA or more. HVAC and service hot water systems, shared among tenants,
need not meet this requirement but shall be separately metered.
6.3.1.2 The electrical power feeders for each facility for which
check-metering is required shall be by tenant and shall be subdivided in
accordance with the following categories:
6.3.1.2.1 Lighting and receptacle outlets;
6.3.1.2.2 HVAC and service water heating systems and equipment; and
6.3.1.2.3 Special occupant equipment or systems of more than 20 kW,
such as elevators, computer rooms, kitchens, printing equipment, and
baling presses.
6.3.1.2.4 Exception to Section 6.3.1.2:
(a) 10% or less of the loads on a feeder may be from another usage
category.
6.3.1.3 The power feeders for each category shall contain portable or
permanent submetering prior to or within any primary or secondary
distribution panels. Such provisions shall include a separate
compartment or panel of adequate size and design to house the necessary
voltage and current transformers. An accessible means of attaching
clamp-on meters or split-core current transformers shall be provided.
6.3.1.4 The locations of these points of measurement may be central
or distributed throughout the building, as appropriate to the layout of
the building. A minimum arrangement shall provide a safe method for
access to the enclosures through which feeder conductors pass, and have
sufficient space to attach clamp-on or split-core current transformers.
These enclosures may be separate compartments or combined with
electrical cabinets serving another function. Enclosures so furnished
shall be identified by available measuring function. A preferred
arrangement would include kWh meters and demand registers, or a means to
transmit such information to a building energy management control
system.
6.3.1.5 In multiple-tenant buildings, where designed connected
electrical service is over 250 kVA, each tenant space having a total
connected load of more than 100 kVA shall have provision made to permit
check-metering of the total tenant load. If the building is served by a
common HVAC system, the HVAC loads need not be check metered for each
tenant.
10 CFR 435.106 6.3.2 Transformers
6.3.2.1 All permanently wired transformers, that are part of the
building electrical distribution system, except utility-owned
transformers, shall be selected to minimize the combination of no-load,
part-load, and full-load losses, without compromising the electrical
system operating and reliability requirements.
6.3.2.2 If the total capacity of the transformers exceeds 300 kVA, a
calculation of total estimated annual operating costs of the transformer
losses shall be made. This calculation shall be based on estimated
hours of transformer operation at projected part-load and full-load
conditions, and the associated transformer core and coil losses. If
appropriate data for projecting this calculation is unavailable, use
Form 6.3-1 ''Transformer Loss Calculation Estimate'' as a basis for
making the estimate. The calculations made in accordance with this
section shall be used to compare among types of transformers and
configurations available to the designer to balance energy costs with
necessary operating flexibility, reliability (redundancy), and safety.
The projected annual energy costs for the losses of the selected
arrangement shall be retained as part of the electrical design
documentation.
Insert illus. 290
6.3.3 Electric Motors
6.3.3.1 All permanently wired polyphase motors of 1 hp or more
serving the building, shall meet the requirements of this section.
Motors expected to operate more than 500 hours per year shall have a
minimum acceptable nominal full-load motor efficiency no less than that
shown in Table 6.3-1.
6.3.3.1.1 Table 6.3-1 applies to motors having nominal 1200, 1800, or
3600 RPM; with open, drip-proof, or TEFC enclosures. Other motor types
are exempted from the minimum efficiency requirements of these
standards.
6.3.3.1.2 Motor efficiency ratings shall be based on a statistically
valid quality control procedure conforming with ANSI/IEEE 112-1984, Test
Method B (Dynamometer) using NEMA MG 1-1987 (MG 1-12.54 and MG 1-12.55)
for motors below 500 hp. For motors 500 hp and above, ANSI/IEEE
112-1984, Test Method B or Method F (Equivalent Circuit Calculation),
shall be used.
6.3.3.1.3 Values listed in Table 6.3-1 are nominal efficiencies.
Minimum motor efficiencies shall not be less than the corresponding
values provided in NEMA MG 1-12.54.
6.3.3.1.4 Motor efficiency shall be tested using a statistically
valid quality control procedure conforming with the IEEE 112A, Test
Method B (1978) (Dynmometer) fan motors E below 500 hp, or Test Method F
(1978) (Equivalent Circuit Calculation) based on no-load measurements
for motors 500 hp and larger.
6.3.3.2 Motor nameplates shall list the minimum and the nominal
full-load motor efficiencies and the full-load power factor.
6.3.3.3 Full-load motor power factor for three-phase motors can be
calculated from nameplate data by Equation 6.3-1:
% Power Factor=(hp 745 100)/(nominal efficiency full-load amps
rated voltage 30.5).
6.3.3.4 Motor horsepower rating shall not exceed 125% of the
calculated maximum load being served, or the next larger standard motor
size if a standard rating does not fall within this range.
6.3.4 Operation and Maintenance of Electrical Systems
6.3.4.1 The designer shall specify that building owners be provided
with written information that provides basic data relating to the
design, operation, and maintenance of the electrical distribution system
for the building. This shall include:
6.3.4.1.1 a single-line diagram of the ''as-built'' building
electrical system;
6.3.4.1.2 schematic diagrams of electrical control systems (other
than HVAC, covered elsewhere);
6.3.4.1.3 manufacturers' operating and maintenance manuals on active
electrical equipment; and
6.3.4.1.4 the Transformer Loss Calculation Estimate if required by
Section 6.3.2.2.
10 CFR 435.107Heating, Ventilation, and Air-Conditioning (HVAC) systems.
10 CFR 435.107 7.1 General
7.1.1 This section contains minimum and prescriptive requirements for
the design of HVAC systems. It is recommended that the designer
evaluate other energy conservation measures that may be applicable to
the proposed design.
7.1.2 A building shall be considered in compliance with this section
if the following conditions are met:
7.1.2.1 The minimum requirements of Section 7.3 are met; and
7.1.2.2 The HVAC system design complies with the prescriptive
criteria of section 7.4. For the design of HVAC systems that incorporate
innovative or alternate design strategies, the compliance paths set
forth in Section 11.0 or 12.0 should be used.
10 CFR 435.107 7.2 Principles of Design
10 CFR 435.107 7.2.1 Control of Equipment Loads
7.2.1.1 The thermal impact of equipment and appliances shall be
minimized by use of hoods, radiation shields, or other confining
techniques, and by use of controls to assure that such equipment is
turned off when not needed. In addition, major heat-generating
equipment shall, where practical, be located where it can balance other
heat losses. For example, computer centers or kitchen areas could be
located in the north or northwest perimeter areas of buildings depending
on climate and prevailing wind directions. In addition, heat recovery
shall be specifically considered for this equipment.
10 CFR 435.107 7.2.2 HVAC System Design
7.2.2.1 Separate HVAC systems shall be considered to serve areas
expected to operate on widely differing operating schedules or design
conditions. For instance, systems serving office areas should generally
be separate from those serving retail areas. When a single system
serves a multi-tenant building, provisions shall be made to shut-off or
set-back the heating and cooling to each area independently.
7.2.2.2 Spaces with relatively constant and weather-independent loads
may be served with systems separate from those serving perimeter spaces.
Areas with special temperature or humidity requirements, such as
computer rooms, shall be served by systems separate from those serving
areas that require comfort heating and cooling only, alternatively,
these areas shall be served by supplementary or auxiliary systems.
7.2.2.3 The supply of zone cooling and heating shall be sequenced to
prevent the simultaneous operation of heating and cooling systems for
same space. Where this is not possible due to ventilation or air
circulation requirements, air quantities shall be reduced as much as
possible before reheating, recooling, or mixing hot and cold air
streams. Finally, supply air temperature shall be reset to extend
economizer operations and to reduce reheat, recool, or mixing losses.
7.2.2.4 Systems serving areas with significant internal heat gains
(lighting, equipment, and people), especially interior zones with little
or no exposure to outside air, shall be designed to take advantage of
mild or cool weather conditions to reduce cooling energy if heat
recovery systems are not used. These systems, called air or water
economizers, shall be designed to provide a partial reduction in cooling
loads even when mechanical cooling must be used to provide the remainder
of the load. Economizer controls shall be integrated with the
mechanical cooling (leaving air temperature) controls so that mechanical
cooling is only operated when necessary and so supply air is not
overcooled to a temperature below the desired supply temperature. The
systems and controls shall be designed so that economizer operation does
not increase heating energy use. For instance, single fan dual duct or
multizone systems that use the same mixed air plenum for both heating
and cooling supplies shall not be used.
7.2.2.5 Controls shall be provided to allow systems to operate in an
occupied mode and an unoccupied mode. In the occupied mode, controls
shall provide for a gradually changing control point as system demands
change from cooling to heating. In the unoccupied mode, ventilation and
exhaust systems shall be shut off if possible, and comfort heating and
cooling systems shall be shut off except to maintain ''setback'' space
conditions. The setback conditions shall be the minimum and maximum
levels required to prevent damage to the building or its contents and
provide for a reasonable morning pick-up period. Note however that
night setback may not conserve energy in buildings with large amounts of
thermal mass.
7.2.2.6 In areas where diurnal temperature swings and humidity levels
permit, the judicious coupling of air distribution systems and building
structural mass may be considered to allow the use of night-time
precooling to reduce the use of day-time mechanical cooling.
7.2.2.7 High ventilation, such as in hospital operating rooms, can
impose enormous heating and cooling loads on HVAC equipment. In these
cases, consideration shall be given to the use of recirculating filtered
and cleaned air, rather than 100% outside air, and pre-heating outside
air with solar systems or reclaimed heat from other sources.
10 CFR 435.107 7.2.3 Energy Transport Systems
7.2.3.1 Energy shall be transported by the most energy efficient
means possible. The following options, are listed in order of
efficiency from the (most efficient) lowest energy transport burden to
the highest:
7.2.3.1.1 Electric Wire or Fuel Pipe,
7.2.3.1.2 Two-Phase Fluid Transfer (Steam or Refrigerant),
7.2.3.1.3 Single-Phase Liquid Fluid (Water, Glycol, Etc.), and
7.2.3.1.4 Air.
7.2.3.2 The distribution system shall be selected to complement other
system parameters such as control strategies, storage capabilities, and
conversion and utilization system efficiencies.
10 CFR 435.107 7.2.3.3 Steam Systems
7.2.3.3.1 Provisions for seasonal or ''non-use time'' shutdown shall
be incorporated.
7.2.3.3.2 The venting of steam and ingestion of air shall be
minimized with the design directed toward full vapor performance.
7.2.3.3.3 Subcooling shall generally be prevented.
7.2.3.3.4 Condensate shall be returned to boilers or source devices
at the highest possible temperature.
10 CFR 435.107 7.2.3.4 Water Systems
7.2.3.4.1 Design flow quantity shall be minimized by designing for
the maximum practical temperature differential.
7.2.3.4.2 Flow quantity shall be varied with load where possible.
7.2.3.4.3 Designs shall be for lowest practical pressure rise (or
drop).
7.2.3.4.4 Operating and idle control modes shall be provided.
7.2.3.4.5 When locating equipment, the critical pressure path shall
be identified and the runs sized for minimum practical pressure drop.
10 CFR 435.107 7.2.3.5 Air Systems
7.2.3.5.1 Air flow quantity shall be minimized by careful load
analysis and an effective distribution system. If the psychometric
nature of the application allows, the supply air quantity shall vary
with the sensible load (i.e., VAV systems). The fan pressure
requirement shall be held to the lowest practical value. Fan pressure
shall be avoided as a source for control power.
7.2.3.5.2 Each fan system shall be designed and controlled to reduce
mechanical cooling requirements by taking advantage of favorable weather
conditions.
7.2.3.5.3 ''Normal'' and ''idle'' control modes shall be provided for
the fan systems as well as the psychometric systems.
7.2.3.5.4 Duct run distances shall be as short as possible, and the
runs on the critical pressure path sized for minimum practical pressure
drop.
10 CFR 435.107 7.2.4 Radiant Heating
7.2.4.1 Radiant heating systems shall be considered in lieu of
convective or all-air heating systems to heat areas which experience
infiltration loads in excess of two (2) air changes per hour at design
heating conditions.
7.2.4.2 Radiant heating systems should be considered for areas with
high ceilings, for spot heating, and for other applications where
radiant heating may be more energy efficient than convective or all-air
heating systems.
10 CFR 435.107 7.2.5 Energy Recovery
7.2.5.1 Systems that recover energy should be considered when
rejected fluid is of adequate temperature and a simultaneous need for
energy exists for a significant number of operating hours.
10 CFR 435.107 7.3 Minimum Requirements
10 CFR 435.107 7.3.1 Calculation Procedures
7.3.1.1 Heating and cooling system design loads for the purpose of
sizing systems and equipment shall be determined in accordance with the
procedures described in the ASHRAE Handbook, 1985 Fundamentals Volume,
or a similar computation procedure. The design parameters specified in
sections 7.3.1.2 through 7.3.1.10 shall be used for calculational
purposes only and are not requirements or recommendations for operating
setpoints.
7.3.1.2 Indoor Design Conditions. Indoor design temperature and
humidity conditions for general comfort applications shall be in
accordance with the comfort criteria established in ANSI/ASHRAE Standard
55-1981, ''Thermal Environmental Conditions for Human Occupancy,''
and/or Chapter 8 of the ASHRAE Handbook, 1985 Fundamentals Volume,
except that winter humidification and summer dehumidification are not
required.
7.3.1.2.1 Exceptions to Section 7.3.1.2:
(a) Health care institutions and similar facilities where the indoor
conditions may not be appropriate for the health and safety of
occupants; and
(b) Where special room temperature and/or humidity conditions are
required by a process or procedure, other than comfort, such as rooms
used for surgery or data processing.
7.3.1.3 Outdoor Design Conditions. Outdoor design conditions shall
be selected for listed locations from the ASHRAE Handbook, 1985
Fundamentals Volume, from the columns of 99% values for heating design
and 2.5% values for cooling design. Local weather data from the
National Weather Service of the National Oceanic and Atmospheric
Administration based on the same 99% and 2.5% values (or statistically
similar annualized values such as 0.2% winter and 0.5% summer) may be
used.
7.3.1.3.1 Exception to Section 7.3.1.3:
(a) Where necessary to assure the prevention of damage to the
building or to material and equipment within the building, the median of
annual extremes for heating and 1% column for cooling may be used.
7.3.1.4 Ventilation. Outdoor air ventilation rates shall be selected
from section 6.1 of ASHRAE Standard 62-1981, ''Ventilation for
Acceptable Indoor Air Quality.''
7.3.1.4.1 Exception to Section 7.3.1.4:
(a) Outdoor air quantities, exceeding those shown in ASHRAE Standard
62-1981, required because of special occupancy or process requirements,
source control of air contamination, or local codes.
7.3.1.5 Infiltration. Infiltration for heating and cooling design
loads shall be calculated by the procedures in the ASHRAE Handbook, 1985
Fundamentals Volume, or a similar computation procedure.
7.3.1.6 Envelope. Building envelope heating and cooling loads shall
be based on envelope characteristics, such as thermal conductance,
shading coefficient and air leakage, consistent with the values used in
the proposed building design to demonstrate compliance with section 5.0.
7.3.1.7 Lighting. Lighting loads shall be based on proposed design
lighting levels or power budgets consistent with section 3.0. Lighting
may be ignored for heating load calculations.
7.3.1.8 Other Loads. Other HVAC system loads, such as those due to
people and equipment, shall be based on design data compiled from at
least one of the following sources:
7.3.1.8.1 Actual information based on the intended use of the
building;
7.3.1.8.2 Published data from manufacturers' technical publications
and from technical society publications such as the ASHRAE Handbook,
1987 HVAC Systems Applications Volume;
7.3.1.8.3 Alereza, ''Estimates of Recommended Heat Gains Due to
Commercial Appliances and Equipment,'' ASHRAE Transactions 90 (Pt. 2A),
25-28 (1984);
7.3.1.8.4 Default values to be used in determining the design energy
budget in section 11.0 or 12.0 taken from Tables 11-2, 11-3, 11-4 and
11-6; and
7.3.1.8.5 Other data based on designer's experience of expected loads
and occupancy patterns.
7.3.1.8.6 Exception to Section 7.3.1.8:
(a) Internal heat gains may be ignored for heating load calculations.
7.3.1.9 Safety Factor. Design loads may, at the designer's option,
be increased by as much as 10% to account for unexpected loads or
changes in space usage.
7.3.1.10 Pick-up Loads. Transient loads such as warm-up or cool-down
loads that occur after off-hour setback or shutoff, may be calculated
from basic principles, based on the heat capacity of the building and
its contents, the degree of setback, and desired recovery time, or may
be assumed to be up to 30% for heating and 10% for cooling of the
steady-state design loads.
10 CFR 435.107 7.3.2 System and Equipment Sizing
7.3.2.1 HVAC systems and equipment shall be sized to provide no more
than the space and system loads require, as calculated in accordance
with section 7.3.1.
7.3.2.1.1 Exceptions to Section 7.3.2.1:
(a) Equipment capacity may exceed the design load if the equipment
selected is the smallest size needed to meet the load within available
options of equipment;
(b) Equipment whose capacity exceeds the design load may be specified
if calculations demonstrate that oversizing can be shown not to increase
annual energy use;
(c) Stand-by equipment may be installed if controls and devices are
provided that allow stand-by equipment to operate automatically only
when the primary equipment is not operating;
(d) Multiple units of the same equipment type, such as multiple
chillers and boilers, with combined capacities exceeding the design load
may be specified to operate concurrently only if controls are provided
that sequence or otherwise optimally control the operation of each unit
based on cooling or heating load;
(e) For unitary equipment with both heating and cooling capability,
only one function, either the heating or the cooling, need meet the
requirements of this subsection. Capacity for the other function shall
be, within available equipment options, the smallest size necessary to
meet the load; and
(f) For buildings complying with section 11.0 or 12.0, equipment of
higher capacity than the design load may be specified if the oversized
equipment is modeled in the building energy analysis of the proposed
design and the proposed design complies with the standards.
10 CFR 435.107 7.3.3 Separate Air Distribution Systems
7.3.3.1 Zones in a building that are expected to operate
non-concurrently for 750 or more hours per year shall either be served
by separate air distribution systems, or off-hour controls shall be
provided in accordance with section 7.3.5.3.
7.3.3.2 Zones with special process temperature and/or humidity
requirements shall be served by separate air distribution systems from
those serving zones requiring only comfort heating and/or cooling, or
supplementary provisions shall be included to allow the primary systems
to be specifically controlled for comfort purposes only.
7.3.3.2.1 Exception to Section 7.3.3.2:
(a) Zones, requiring comfort heating and/or cooling, that are served
by a system primarily used for process temperature and humidity control,
need not be served by a separate system if the total supply air to these
zones is no more than 25% of the total system supply air, .5
7.3.3.3 Zones having substantially different heating or cooling load
characteristics, such as perimeter zones in contrast to interior zones,
shall not be served by a single multiple zone air distribution system.
10 CFR 435.107 7.3.4 Temperature Controls
7.3.4.1 System Control. Each HVAC system shall include at least one
temperature control device.
7.3.4.2 Zone Controls. The supply of heating and/or cooling energy
to each zone shall be controlled by an individual thermostat located
within the zone.
7.3.4.2.1 Exceptions to Section 7.3.4.2:
(a) Independent perimeter systems may serve multiple zones of the
primary/interior system with the following limitations:
(1) The perimeter system shall include at least one thermostatic
control zone for each major building exposure having exterior walls
facing only one orientation for 50 contiguous feet or more; and
(2) The perimeter system heating and/or cooling supply shall be
controlled by thermostat controls located within the zone(s) served by
the system; and
(b) A dwelling unit may be considered a single zone.
7.3.4.3 Zone thermostats used to control comfort heating shall be
capable of being set, locally or remotely, by adjustment or selection of
sensors, down to 55 F.
7.3.4.4 Zone thermostats used to control comfort cooling shall be
capable of being set, locally or remotely, by adjustment or selection of
sensors, up to 85 F.
7.3.4.5 Zone thermostats used to control both heating and cooling
shall be capable of providing a temperavure range or dead band of at
least 5 F within which the supply of heating and cooling energy to the
zone is shut off or reduced to a minimum.
7.3.4.5.1 Exceptions to Section 7.3.4.5:
(a) For buildings complying with Section 11.0 or 12.0, dead band
controls are not required if, in the building energy analysis, heating
and cooling thermostat setpoints are set to the same value between 70 F
and 75 F and assumed to be constant throughout the year;
(b) Special occupancy, special usage or construction code
requirements where dead band controls are not appropriate, adjustable
single setpoint thermostats may be used; and
(c) Thermostats that require manual changeover between heating and
cooling modes.
10 CFR 435.107 7.3.5 Off-hour Controls
7.3.5.1 Each HVAC system shall have automatic control setback and/or
shutdown of equipment during periods of non-use or alternate use of the
spaces served by the system.
7.3.5.1.1 Exceptions to Section 7.3.5.1:
(a) Systems serving areas expected to operate continuously;
(b) Where equipment with a full load demand of 2kW (6826 Btu/h) or
less may be controlled by readily accessible manual off-hour controls;
(c) Where setback or shutdown will not result in a decrease in
overall building energy use.
7.3.5.2 Outside air supply and/or exhaust systems shall be equipped
with motorized or gravity dampers or other means of automatic volume
shutoff or reduction during periods of non-use or alternate use of the
spaces served by the system.
7.3.5.2.1 Exceptions to Section 7.3.5.2:
(a) Individual ventilation systems when design air flow is 3000 cfm
or less;
(b) Systems that operate continuously;
(c) When restricted by code, such as at combustion air intakes; or
(d) When gravity and other non-electrical ventilation systems may be
controlled by readily accessible manual damper controls.
7.3.5.2.2 Dampers may be required in some climates to prevent
equipment damage due to freezing and/or to provide proper warm-up
control.
7.3.5.3 Systems that serve areas that operate non-concurrently for
750 or more hours per year shall have isolation devices and controls for
shut off or set back of heating and cooling to each zone independently.
Isolation is not required for zones expected to operate continuously or
expected to be inoperative only when all other zones are inoperative.
7.3.5.3.1 For buildings where occupancy patterns are not known at the
time of system design, isolation areas may be predesignated.
7.3.5.3.2 Zones may be grouped into a single isolation area providing
the total conditioned floor area does not exceed 25,000 ft /2/ per group
nor include more than one floor.
10 CFR 435.107 7.3.6 Humidity Control
7.3.6.1 If a system maintains specific relative humidities by adding
moisture, a humidistat shall be provided.
7.3.6.2 If comfort humidification is provided, the system shall be
designed to prevent the use of fossil fuel or electricity to maintain
relative humidity in excess of 30%.
7.3.6.3 If comfort dehumidification is provided, the system shall be
designed to prevent the use of fossil fuel or electricity to reduce
relative humidity below 60%.
10 CFR 435.107 7.3.7 Materials and Construction
7.3.7.1 Insulation required by Section 7.3.7.2 and 7.3.7.3 shall be
suitably protected from damage. Insulation shall be installed in
accordance with the Midwest Insulation Contractors Association
''Commercial and Industrial Insulation Standards,'' 1983.
7.3.7.2 Piping Insulation. All HVAC system piping installed to serve
buildings and within buildings shall be thermally insulated in
accordance with Table 7.3-1.
Insert illustration(s) 0 310
7.3.7.2.1 Exceptions to Section 7.3.7.2:
(a) For manufacturer installed piping within HVAC equipment tested
and rated in accordance with Section 8.3;
(b) For piping conveying fluids at temperatures between 55 F and 105
F;
(c) For piping conveying fluids that have not been heated or cooled
through the use of fossil fuels or electricity; and
(d) When calculations demonstrate that heat gain and/or heat loss to
or from piping without insulation will not increase building energy use.
7.3.7.2.2 Alternative Insulation Types. Insulation thicknesses in
Table 7.3-1 are based on insulation with thermal conductivities listed
in Table 7.3-1 for eagh fluid operating temperature range, rated in
accordance with ASTM C 335-84, ''Test Method for Steady-State Heat
Transfer Properties of Horizontal Pipe Insulations,'' at the mean
temperature listed in the table. For insulating materials having
conductivities more than of those shown in the Table 7.3-1 for the
applicable fluid operating temperature range and at the mean rating
temperature shown, when rounded to the nearest 1/100th Btu/h F ft /2/ ,
the minimum thickness shall be determined in accordance with Equation
7.3-1:
Where:
T=minimum insulation thickness for material with conductivity K, in.
PR=pipe actual outside radius, in.
t=insulation thickness from Table 7.3-1, in.
K=conductivity of alternate material at the mean rating temperature
indicated in Table 7.3-1 for the applicable fluid temperature range, Btu
in./h F ft /2/
k=the lower value of conductivity listed in Table 7.3-1 for the
applicable fluid temperature range, Btu in./h F ft /2/
7.3.7.3 Air Handling System Insulation. All air handling ducts,
plenums, and other enclosures installed as part of an HVAC air
distribution system shall be thermally insulated in accordance with
Table 7.3-2 (This table comes from Section 1005 of the 1985 Uniform
Mechanical Code).
Insert illustration(s) 0 313
7.3.7.3.1 Exception to section 7.3.7.3: Duct insulation is not
required in any of the following cases:
(a) Manufacturer installed plenums, casings or ductwork furnished as
a part of HVAC equipment tested and rated in accordance with section
8.3; and
(b) When calculations demonstrate that heat gain and/or heat loss to
or from ducts without insulation will not increase building energy use.
7.3.7.4 Duct Construction. All air handling ductwork and plenums
shall be constructed, erected and tested in accordance with the
following Sheet Metal and Air Conditioning Contractors National
Association (SMACNA) Standards: HVAC Duct System Design Manual, 1986;
HVAC Duct Leakage Test Manual, 1985; and Fibrous Glass Construction
Standards, 5th edition, 1979.
7.3.7.4.1 Ductwork designed to operate at static pressure differences
greater than 3 in. W.C. shall be leak tested and conform with the
following requirements of the HVAC Duct Leakage Manual, 1985: Test
procedures shall be in accordance with those outlined in section 5.0 of
the manual, or equivalent; test reports shall be provided in accordance
with section 6.0 of the manual, or equivalent; the tested duct leakage
class at a test pressure equal to the design duct pressure class rating
shall be equal to or less than leakage class 6 as defined in section 4.1
of the manual. Leakage testing may be limited to representative
sections of the duct system but in no case shall such tested sections
include less than 25% of the total installed duct area for the
designated pressure class.
7.3.7.4.2 Where supply ductwork designed to operate at static
pressure differences from 1/4 in. to 2 in. W.C. are located outside of
the conditioned space, including return plenums, joints shall be sealed
in accordance with Seal Class C, as defined in the SMACNA manuals
referenced above. Pressure sensitive tape shall not be used as the
primary sealant for such ducts designed to operate at 1 in. W.C.
pressure difference or greater.
10 CFR 435.107 7.3.8 Completion Requirements
7.3.8.1 An operating and maintenance manual shall be provided to the
building owner. The manual shall include basic data relating to the
operation and maintenance of HVAC systems and equipment. Required
routine maintenance actions shall be clearly identified. Where
applicable, HVAC controls information such as diagrams, schematics,
control sequence descriptions, and maintenance and calibration
information shall be included.
7.3.8.2 Air system balancing shall be accomplished in a manner to
minimize throttling losses and then fan speed shall be adjusted to meet
design flow conditions. Balancing procedures shall be in accordance
with those established by the National Environmental Balancing Bureau
(NEBB), the Association of Air Balancing Council (AABC), or similar
procedures.
7.3.8.2.1 Exception to section 7.3.8.2:
(a) Damper throttling may be used for air system balancing with fan
motors of 1 hp or less, or if throttling results in no greater than 1/3
hp fan horsepower draw above that required if the fan speed were
adjusted.
7.3.8.3 Hydronic system balancing shall be accomplished in a manner
to minimize throttling losses and then the pump impeller shall be
trimmed or pump speed shall be adjusted to meet design flow conditions.
7.3.8.3.1 Exceptions to section 7.3.8.3: Valve throttling may be
used for hydronic systems balancing under any of the following
conditions:
(a) Pumps with pump motors of 10 hp and less;
(b) If throttling results in pump horsepower draw no greater than 3
hp above that required if the impeller were trimmed;
(c) To reserve additional pump pressure capability in open circuit
piping systems subject to fouling. Valve throttling pressure drop shall
not exceed that expected for future fouling; or
(d) Where it can be shown that throttling will not increase overall
building energy use.
7.3.8.4 HVAC control systems shall be tested to assure that control
elements are calibrated, adjusted, and in proper working condition.
10 CFR 435.107 7.4 Heating, Ventilation and Air-Conditioning (HVAC) Systems -- Prescriptive Compliance Alternative
10 CFR 435.107 7.4.1 Zone Controls
7.4.1.1 Zone thermostatic and humidistatic controls shall be capable
of operating in sequence, the supply of heating and cooling energy to
the zone. The controls shall prevent:
7.4.1.1.1 Reheating (heating air that is cooler than system mixed
air);
7.4.1.1.2 Recooling (cooling air that is warmer than system mixed
air);
7.4.1.1.3 Mixing or the simultaneous supply of air that has been
previously mechanically heated and air that has been previously cooled,
either by mechanical refrigeration or by economizer systems; and
7.4.1.1.4 Other simultaneous operation of heating and cooling systems
to one zone.
7.4.1.2 Exceptions to Section 7.4.1.1:
7.4.1.2.1 Variable air volume systems that, during periods of
occupancy, are designed to reduce the air supply to each zone to a
minimum before reheating, recooling, or mixing during periods of
occupancy. The minimum volume setting shall be no greater than the
larger of the following:
(a) 30% of the peak supply volume;
(b) The minimum volume required to meet the ventilation requirements
of Section 7.3.1.4; and
(c) 0.4 cfm/ft /2/ of conditioned zone area. In addition, supply air
temperatures shall be automatically reset based on representative
building loads or outside air temperature by at least 25% of the
difference between the design supply air and room air temperature.
Zones expected to experience relatively constant loads, such as interior
zones, shall be designed for the fully reset supply temperature. Supply
air reset control is not required if calculations demonstrate that it
increases overall building energy use;
7.4.1.2.2 Zones where special pressurization relationships or
cross-contamination requirements are such that variable air volume
systems are impractical, such as some areas of hospitals and
laboratories. In these cases, systems shall include automatic supply
air reset controls in accordance with section 7.4.1.2.1 above;
7.4.1.2.3 At least 75% of the energy for reheating or providing warm
air in mixing systems is provided from site-recovered energy that would
otherwise be wasted, or from non-depletable energy sources;
7.4.1.2.4 Zones where specific humidity levels are required to
satisfy process needs, such as computer rooms and museums (see section
7.3.3.2); and
7.4.1.2.5 Zones with a peak supply air quantity of 300 cfm or less.
10 CFR 435.107 7.4.2 Economizer Controls
7.4.2.1 Each fan system shall be designed to take advantage of
favorable weather conditions to reduce mechanical cooling requirements.
The system shall include either of the following:
7.4.2.1.1 A temperature or enthalpy air economizer system that is
capable of automatically modulating outside air and return air dampers
to provide up to 85% outside air for cooling; or
7.4.2.1.2 A water economizer system that is capable of cooling supply
air by direct and/or indirect evaporation. The system shall be designed
and controlled to be able to provide 100% of the system cooling load at
outside air temperatures of 50 F dry-bulb/45 F wet-bulb and below.
Each economizer system shall be capable of providing partial cooling
even when additional mechanical cooling is required to meet the
remainder of the cooling load.
7.4.2.1.3 Exceptions to Section 7.4.2.1:
(a) individual fan/cooling units with supply capacity of less than
3,000 cfm or a total cooling capacity less than 90,000 Btu/h. The total
capacity of such units per building complying by this exception shall
not exceed 600,000 Btu/h per building or 10% of the total installed
cooling capacity, whichever is larger;
(b) Systems with air or evaporatively cooled condensers and for which
one of the following is true:
(1) The system is located where the quality of the air, as defined in
ASHRAE Standard 62-1981, is so poor as to require extensive treatment of
the air, and
(2) Calculations indicate that the use of outdoor air cooling affects
the operation of other systems, such as humidification,
dehumidification, and supermarket refrigeration systems and will
increase overall building energy use;
(c) Calculations demonstrate that the overall building energy use for
alternative designs, such as internal/external zone heat recovery
systems, are less than those for an economizer system;
(d) The system is located where the outdoor summer wet-bulb design
condition (2.5% occurrence, ASHRAE Handbook, 1985 Fundamentals Volume)
is more than 72 F and annual HDD65 are less than 2,000;
(e) Systems that serve envelope dominated spaces whose design space
sensible cooling load, excluding transmission and infiltration loads, is
less than or equal to transmission and infiltration losses at an outdoor
temperature of 60 F;
(f) Systems serving residential spaces including hotel/motel rooms;
(g) Cooling systems for which 75% of its annual energy consumption is
provided by site-recovered energy that would otherwise be wasted, or
from non-depletable energy sources; and
(h) The zone(s) served by the system each have operable openings
(windows, doors, etc.), the openable area of which is greater than 5% of
the conditioned floor area. This exception applies only to spaces open
to and within 20 ft of the operable openings. Automatic controls shall
be provided that lockout system mechanical cooling when outdoor air
temperatures are less than 60 F.
7.4.2.2 Economizer systems shall be capable of providing partial
cooling even when additional mechanical cooling is required to meet the
remainder of the cooling load.
7.4.2.2.1 Exceptions to Section 7.4.2.2.
(a) Direct expansion systems may include controls to reduce the
quantity of outside air as required to prevent coil frosting at the
lowest step of compressor unloading. Individual direct expansion units
that have a cooling capacity of 180,000 Btu/h or less may use economizer
controls that preclude economizer operation whenever mechanical cooling
is required simultaneously; and
(b) Systems in climates with less than 750 average hours per year
between 8 a.m. and 4 p.m. when the ambient dry bulb temperatures are
between 55 F and 69 F inclusive. See Attachment 5A for climate data
for 234 U.S. cities.
7.4.2.3 System design and economizer controls shall be such that
economizer operation does not increase the building heating energy use
during normal operation.
7.4.2.3.1 Exception to section 7.4.2.3:
(a) At least 75% of the energy for heating is provided from
site-recovered energy that would otherwise be wasted, or from
non-depletable energy sources.
10 CFR 435.107 7.4.3 Fan System Design Requirements.
7.4.3.1 The following design criteria apply to all HVAC fan systems
used for comfort heating, ventilating and/or cooling. For the purposes
of this subsection, the energy demand of a fan is the sum of the demand
of all fans that are required to operate at design conditions to supply
air from the heating and/or cooling source to the conditioned space(s)
and return it back to the source or exhaust it to the outdoors.
7.4.3.1.1 Exceptions to section 7.4.3.1:
(a) Systems with total fan system motor horsepower of 10 hp or less;
(b) Unitary equipment for which the energy used by the fan is
considered in the efficiency ratings of Section 8.0; and
(c) Total fan energy demand need not include the additional power
required by air treatment or filtering systems with final pressure drops
in excess of 1 in. W.C.
10 CFR 435.107 7.4.3.2 Constant Volume Fan Systems.
7.4.3.2.1 For supply and return fan systems that provide a constant
air volume whenever the fans are operating, the power required for the
combined fan system at design conditions shall not exceed 0.8 W/cfm of
supply air.
10 CFR 435.107 7.4.3.3 Variable Air Volume (VAV) Fan Systems.
7.4.3.3.1 For supply and return fan systems that vary system air
volume automatically as a function of load, the power required by the
motors for the combined system at design conditions shall not exceed
1.25 W/cfm.
7.4.3.3.2 Individual VAV fans with motors 75 hp and larger shall
include controls and devices necessary for the fan motor to control
demand to no more than 50% of design wattage at 50% of design air
volume, based on manufacturer's test data.
10 CFR 435.107 7.4.4 Pumping System Design Criteria.
7.4.4.1 The following design criteria apply to all HVAC pumping
systems used for comfort heating and/or cooling. For the purposes of
this section, the energy demand of a pumping system is the sum of the
demand of all pumps that are required to operate at design conditions to
supply fluid from the heating and/or cooling source to the conditioned
space(s) or heat transfer device(s) and return it to the source.
7.4.4.1.1 Exception to section 7.4.4.1:
(a) Systems with total pump system motor horsepower of 10 hp or less.
7.4.4.2 Friction Rate. Piping systems shall be designed at a design
friction pressure loss rate of no more than 4.0 ft of water per 100
equivalent ft of pipe. Lower friction rates may be required for proper
noise or corrosion control.
7.4.4.3 Variable Flow. Pumping systems that serve control valves
designed to modulate or step open and close as a function of load, shall
be designed for variable fluid flow. The system shall be capable of
reducing flow to 50% of design flow or less. Flow may be varied by one
of several methods, including, but not limited to, variable speed driven
pumps, staged multiple pumps, or pumps riding their characteristic
performance curves.
7.4.4.3.1 Exceptions to section 7.4.4.3:
(a) Systems where a minimum flow greater than 50% of the design flow
is required for the proper operation of equipment served by the system,
such as chillers;
(b) Systems that serve no more than one control valve;
(c) Where the overall building energy use resulting from an
alternative design, such as a constant flow/variable temperature pumping
system, is no more than those from a variable flow system; and
(d) Systems that include supply temperature reset controls in
accordance with section 7.4.5.2 without exception.
10 CFR 435.107 7.4.5 System Temperature Reset Controls.
7.4.5.1 Air Systems. Systems supplying heated or cooled air to
multiple zones shall include controls that automatically reset supply
air temperatures by representative building loads or by outside air
temperature. Temperature shall be reset by at least 25% of the design
supply-air-to-room-air temperature difference. Zones that are expected
to experience relatively constant loads, such as interior zones, shall
be designed for the fully reset supply temperature.
7.4.5.1.1 Exceptions to section 7.4.5.1:
(a) Systems which comply with section 7.4.1 without using exceptions
in sections 7.4.1.2.1 or 7.4.1.2.2; and
(b) Where it can be shown that supply air temperature reset increases
overall building annual energy costs.
7.4.5.2 Hydronic Systems. Systems supplying heated and/or chilled
water to comfort conditioning systems shall include controls that
automatically reset supply water temperatures by representative building
loads (including return water temperature) or by outside air
temperature. Temperature shall be reset by at least 25% of the design
supply-to-return water temperature difference.
7.4.5.2.1 Exceptions to section 7.4.5.2:
(a) Systems that comply with section 7.4.4.3 without exception;
(b) Where it can be shown that supply temperature reset increases
overall building annual energy use;
(c) Systems for which supply temperature reset controls cannot be
implemented without causing improper operation of heating, cooling,
humidification, or dehumidification systems; or
(d) Systems with less than 600,000 Btu/h design capacity.
10 CFR 435.108Heating, ventilation and air-conditioning (HVAC) equipment.
10 CFR 435.108 8.1 General
8.1.1 This section contains minimum requirements for fundamental to
good practice and/or the minimum acceptable state-of-the-art in energy
efficient HVAC equipment.
8.1.2 A building shall be considered in compliance with this section
if the minimum requirements of Section 8.3 are met.
10 CFR 435.108 8.2 Principles of Design
8.2.1 The rate of energy input(s) and the heating or cooling
output(s) of all HVAC products shall be ascertained. This information
shall be based on equipment in new condition, and shall cover full load,
partial load, and standby conditions. The information shall also
include performance data for modes of equipment operation and at ambient
conditions as specified in the minimum equipment performance
requirements below.
10 CFR 435.108 8.2.2 Source Systems
8.2.2.1 To allow for HVAC equipment operation at the highest
efficiencies, conversion devices shall be matched to load increments,
and operation of modules shall be sequenced. Oversized or large scale
systems shall never be used to serve small seasonal loads (e.g., a large
heating boiler to serve a summer service water heating load). Specific
''low load'' units shall be incorporated in the design where prolonged
use at minimal capacities is expected.
8.2.2.2 Storage techniques should be used to level or distribute
loads that vary on a time or spatial basis to allow operation of a
device at maximum (full-load) efficiency.
8.2.2.3 All equipment shall be the most efficient (or highest COP)
practical, at both design and reduced capacity (part-load) operating
conditions.
8.2.2.4 Fluid temperatures for heating equipment shall be as low as
practical and for cooling equipment as high as practical, while meeting
loads and minimizing flow quantities.
10 CFR 435.108 8.3 Minimum Requirements
10 CFR 435.108 8.3.1 Equipment Efficiency
8.3.1.1 Minimum Equipment Efficiency. Equipment shall have a minimum
efficiency at the specified rating conditions, not less than the values
shown in Tables 8.3-1 through 8.3-10. Minimum efficiencies for equipment
using chlorofluorocarbons (CFCs) refrigerants reflect the assumption
that the use of certain refrigerants may be restricted because of ozone
layer depletion concerns.
8.3.1.2 Data furnished by the equipment supplier or certified under a
nationally-recognized certification program or rating procedure may be
used to satisfy these requirements.
8.3.1.3 Integrated Part-Load Value (IPLV) is the descriptor for
part-load efficiency for certain types of equipment. The IPLVs are
found in the referenced ARI Standards. Compliance with minimum
efficiency requirements specified for certain HVAC equipment shall
include compliance with part-load requirements as well as standard or
full-load requirements.
8.3.1.4 If nationally-recognized test procedures for combined
equipment are not available, efficiencies for service water heating
shall be determined using data provided by equipment and component
manufacturers, employing reasonable assumptions concerning uncertain
parameters.
8.3.1.5 Omission of minimum performance requirements for certain
classes of HVAC equipment does not preclude use of such equipment where
appropriate.
10 CFR 435.108 8.3.2 Field Assembled Equipment and Components
8.3.2.1 Where components, such as indoor or outdoor coils, from more
than one manufacturer are used as parts of a cooling or heating unit, it
shall be the responsibility of the system designer to specify component
efficiencies, which when combined will provide equipment that is in
compliance with the requirements of these standards, based on data
provided by the component manufacturers.
8.3.2.2 Total on-site energy input to the equipment shall be
determined by combining the energy inputs to all components, elements,
and accessories including but not limited to compressor(s), internal
circulating pump(s), condenser-air fan(s), evaporative-condenser cooling
water pump(s), purge devices, viscosity control heaters, and controls.
8.3.2.3 Heat-Operated Water Chilling Package. Double-effect,
heat-operated water chilling packages shall be used in lieu of
single-effect equipment, due to their higher efficiency, except where
the energy input is from low temperature waste-heat or non-depletable
energy sources.
10 CFR 435.108 8.3.3 Equipment Controls
8.3.3.3 Heat pumps equipped with supplementary resistance heaters for
comfort heating shall be installed with a control to prevent heater
operation when the heating load can be met by the heat pump. A
two-stage room thermostat, that controls the supplementary heat on its
second stage, will meet this requirement. Supplementary heater
operation is permitted where it can be shown that supplementary heating
reduces energy use. Supplementary heater operation is permitted during
short transient periods of less than 15 minutes during defrost cycles.
8.3.3.3.1 Controls shall provide a means of activating the
supplementary heat source on an emergency basis and a visible indicator
shall be provided to indicate the emergency heat status.
8.3.3.4 Cooling Equipment Auxiliary Controls. Evaporator coil
frosting and excessive compressor cycling at part-load conditions shall
not be controlled by use of either hot gas by-pass or evaporator
pressure regulator control.
10 CFR 435.108 8.3.4 Comfort Heating Equipment
8.3.4.1 The designer shall obtain data and information from the
manufacturer of electric resistance comfort heating equipment regarding
full-load and part-load energy consumption of the heating equipment over
the range of voltages at which the equipment is intended to operate.
All auxiliaries required for the operation of the heater equipment such
as, but not limited to fans, pumps, viscosity control heaters, fuel
handling equipment, and blowers shall be included in the energy input
data provided by the manufacturer(s).
10 CFR 435.108 8.3.5 Maintenance
8.3.5.1 Provisions shall be made to provide necessary preventive
maintenance information to maintain efficient operation of all HVAC
equipment.
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10 CFR 435.109Service water heating systems.
10 CFR 435.109 9.1 General
9.1.1 This section contains minimum and prescriptive requirements for
the design of Service Water Heating Systems.
9.1.2 A building shall be considered in compliance with this section
if the following conditions are met:
9.1.2.1 The minimum requirements of section 9.3 are met; and
9.1.2.2 The Service Water Heating System design complies with the
prescriptive criteria of section 9.4.
10 CFR 435.109 9.2 Principles of Design
9.2.1 Showerheads shall be designed to provide and maintain user
comfort and energy savings. They should not use removable flow
restricting inserts to meet flow limitation requirements.
9.2.2 Point of use water heaters shall be considered where their use
will reduce energy consumption and is life cycle cost effective.
9.2.3 High temperature condensate, when returned to condensation pump
tanks or other vented tanks, will have a certain portion flashed into
steam, thus wasting energy. To conserve this energy, a heat exchanger
shall be considered for use in the condensate return line to heat or
preheat the service water, cool the condensate, and prevent flashing.
9.2.4 Storage may be used to optimize heat recovery when the flow of
heat to be recovered is out of phase with the demand for heated water,
or when energy use for water heating can be shifted to take advantage of
off-peak rates.
10 CFR 435.109 9.3 Minimum Requirements
10 CFR 435.109 9.3.1 Sizing of Systems
9.3.1.1 Service water heating system design loads for the purpose of
sizing and selecting systems shall be determined in accordance with the
procedures described in chapter 54 of the ASHRAE Handbook, 1987 HVAC
Systems and Applications Volume, or a similar computation procedure.
10 CFR 435.109 9.3.2 Equipment Efficiency
9.3.2.1 All water heaters and hot water storage tanks shall meet the
criteria of Table 9.3-1. Where multiple criteria are listed, all
criteria shall be met. Where no criteria are provided, no requirements
need be met.
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9.3.2.1.1 Exception to section 9.3.2.1
(a) storage water heaters and hot water storage tanks having more
than 500 gallons of storage capacity need not meet the standby loss (SL)
or heat loss (HL) requirements of Table 9.3-1 if the tank surface area
is thermally insulated to R-12.5 and if a standing pilot light is not
used.
9.3.2.2 Heat Traps. Storage water heaters not equipped with integral
heat traps and having vertical pipe risers shall be installed with heat
traps on both the inlet and outlets. The heat trap shall be installed
directly, or as close as possible to the outlet fittings. Circulating
systems need not employ heat traps.
9.3.2.2.1 A heat trap may take the form of a bent piece of tubing
that forms a loop of 360 degrees; an arrangement of pipe fittings, such
as elbows, connected so that the inlet and outlet piping make vertically
upward runs just before turning downward to connect to the water
heater's inlet and outlet fittings; a commercially available heat trap;
or any other type that effectively restricts the natural tendency of
hot water to rise in the vertical pipe during standby periods.
9.3.2.2.2 When the water heater outlet is directly horizontal out of
the tank, or is piped with an elbow on the vertical outlet and then
downward, this piping arrangement itself is effectively a heat trap and
a separate heat trap is not then needed.
10 CFR 435.109 9.3.3 Piping Insulation
9.3.3.1 For circulating systems, piping insulation shall conform to
the requirements of Table 7.3-1 or an equivalent level as calculated in
accordance with Equation 7.3-1.
9.3.3.2 For non-circulating systems, the first 8 ft of piping from a
storage system that is maintained at a constant temperature shall be
insulated in accordance with Table 7.3-1, or an equivalent level as
calculated in accordance with Equation 7.3-1. Systems without a heat
trap to prevent circulation due to natural convection shall be
considered circulating systems.
10 CFR 435.109 9.3.4 Controls
9.3.4.1 Temperature. Service water heating systems shall be equipped
with temperature controls capable of adjustment from 90 F to a
temperature setting compatible with intended use, except for systems
serving residential dwelling units may be equipped with controls capable
of adjustment down to 110 F only. (See ASHRAE Handbook, 1987 Systems
and Applications Volume, Chapter 54, Table 3).
9.3.4.1.1 Where temperatures higher than 120 F are required at
certain outlets for a particular intended use, separate remote heaters
or booster heaters shall be installed for those outlets unless it can be
shown by calculation that either energy is not saved by the application
of this requirement or that the total cost over the life of the
equipment is not reduced.
9.3.4.1.2 Circulating Hot Water Systems and Heated Pipes. Systems
designed to maintain temperatures in hot water pipes, including
circulating hot water systems and heat tape on water pipes, shall be
equipped with automatic controls that can be set to turn off the system
when hot water is not required.
10 CFR 435.109 9.3.5 Equipment and Control Requirements for the
Conservation of Hot Water
9.3.5.1 Showers used for other than safety reasons shall limit the
maximum hot water discharge to 2.75 gpm when tested according to ANSI
A112.18.1M-1979, ''Finished and Rough Brass Plumbing Fixtures''. The
designer shall evaluate the use of lower flow showerheads than 2.75 gpm,
particularly for heavily used facilities. Removable flow restricting
inserts shall not be used in showerheads to meet this criterion. When
flow restricting inserts are used as a component part of a showerhead,
they shall be mechanically retained at the point of manufacture.
(Mechanically retained means a pushing or pulling force to remove the
flow restricting insert at 8 pounds or more.) This requirement shall not
apply to showerheads that will cause water to leak significantly from
areas other than the spray face, if the flow restricting insert were
removed.
9.3.5.2 Lavatories in public restrooms, with the exception of
lavatories for physically handicapped persons, shall be equipped with
devices that:
9.3.5.2.1 Limit the flow of hot water to either:
(a) A maximum of 0.5 gpm;
(b) 0.75 gpm if a device or fitting is used that limits the period of
water discharge, such as a foot switch, fixture occupancy sensor; or
(c) 2.5 gpm if equitped with a self-closing valve;
9.3.5.2.2 Either be equipped with a foot switch or occupancy sensor
or similar device or limit delivery with a self-closing valve or a foot
switch to a maximum of 0.25 gallons of hot water for circulating
systems;
9.3.5.2.3 Limits delivery with a self-closing valve or a foot switch
to a maximum of 0.50 gallons for non-circulating systems; and
9.3.5.2.4 Limits the outlet temperature to a maximum 110 F.
10 CFR 435.109 9.3.6 Swimming Pools
9.3.6.1 Pool Heaters. All pool heaters shall meet the criteria of
Table 9.3-1 and be equipped with a readily accessible ''on-off'' switch
to allow system shut-off without adjusting the thermostat setting and,
when applicable, allow restarting without manually relighting the pilot
light.
9.3.6.2 Pool Covers. Outdoor heated swimming pools shall be equipped
with a pool cover. However, pools deriving over 70% of the energy for
heating from non-depletable sources or from recovery of energy that
would otherwise be wasted (computed over an operating season) need not
be equipped with pool covers.
9.3.6.3 Time Switches. Time switches shall be installed on all
swimming pool pumps and all electric swimming pool heaters. These
switches shall allow for the shutdown of heaters during hours of peak
utility demand except as is necessary in peak period operation to
maintain water in a clear and sanitary condition in keeping with
applicable public health standards.
9.3.6.3.1 Exceptions to section 9.3.5.3:
(a) Where public health standards require 24 hour operation of pumps;
and
(b) Pumps are required to operate solar pool heating systems.
10 CFR 435.109 9.4 Service Hot Water Heating Systems -- Prescriptive Compliance Alternative
10 CFR 435.109 9.4.1 Combination Service Water Heating/Space Heating
Equipment
9.4.1.1 Water heaters used for combination service water and space
heating shall meet the appropriate minimum efficiency requirements of
both section 8.3 and 9.3.
9.4.1.2 Combination space heating and service water heating equipment
shall only be used when at least one of the following conditions is met:
9.4.1.2.1 where the annual space heating energy use is less than 50%
of the annual service water heating energy use;
9.4.1.2.2 where the energy input or storage volume of the combined
boiler or water heater is less than twice the size of the smaller of the
separate boilers or water heaters otherwise required;
9.4.1.2.3 where calculations show that the combined system uses no
more energy than separate systems that meet the requirements of sections
8.3 and 9.3; or
9.4.1.2.4 where the input to the combined boiler is less than 150,000
Btu/h.
9.4.1.3 Combination function equipment (space heating, service water
heating, cooling, etc.) shall comply with minimum efficiency
requirements in accordance with nationally recognized test procedures.
Where such procedures are not available for particular equipment
designs, compliance shall be determined based on the function
representing the maximum annual energy consumption, using data provided
by equipment and component manufacturers.
10 CFR 435.109 9.4.2 Additional Equipment Efficiency Measures
9.4.2.1 Electric Water Heaters. In applications where water
temperatures not greater than 145 F are required, an economic
evaluation shall be made on the potential benefit of using an electric
heat pump water heater(s) instead of electric resistance water
heater(s). The analysis shall compare the extra costs of the heat pump
unit with the benefits in reduced energy costs, less increased
maintenance costs, over the estimated service life of the heat pump
water heater.
9.4.2.1.1 Exception to section 9.4.2.1:
(a) Electric resistance water heaters used in conjunction with
site-recovered or non-depletable energy sources or off-peak heating with
thermal storage.
9.4.2.2 Gas-Fired Water Heaters. All gas-fired storage water heaters
that use indoor air for combustion or draft hood dilution and that are
installed in a conditioned room shall be equipped with a vent damper
unless the water heater is already so equipped. Unless the water heater
has an available electrical supply, the installation of such a vent
damper shall not require an electrical connection. The vent damper
shall be listed as meeting appropriate ANSI standards and shall be
installed in accordance with manufacturer's instructions and local
codes.
9.4.2.2.1 Exception to section 9.4.2.2:
(a) where the cost of the damper exceeds the value of reduced energy
costs over the damper's lifetime.
10 CFR 435.109 9.4.3 Use of Waste Heat, Solar Energy, and Thermal
Storage
9.4.3.1 An evaluation shall be made of the potential for the use of
condenser heat, waste energy, solar energy, or off-peak heating with
thermal storage to reduce water heating energy cost.
9.4.3.2 Storage shall be used to optimize heat recovery when the flow
of heat to be recovered is out of phase with the demand for heated
water, or when energy use for water heating can be shifted to take
advantage of off-peak rates.
(54 FR 4554, Jan. 30, 1989, as amended at 55 FR 23869, June 12, 1990)
10 CFR 435.110Energy management.
10 CFR 435.110 10.1 General
10.1.1 This section contains minimum requirements for building energy
management systems. It describes the energy measurement, control,
testing and documentation that shall be provided to the building owner.
The intent is to minimize energy use by providing the building operator
with design, construction and equipment data, along with a means of
testing the completed facility.
10.1.2 A building shall be considered in compliance with this section
if the minimum requirements of Section 10.3 are met.
10 CFR 435.110 10.2 Principles of Design
10 CFR 435.110 10.2.1 Energy Management Control Systems
10.2.1.1 An energy management control system is critical to the
effective management of building energy. Energy management systems
require measurements at key points in the building system and must be
capable of part-load operation recognition and be equipped with controls
to match system capacity to load demands.
10.2.1.2 Controls cannot correct inadequate source equipment, poorly
selected components, or mismatched systems. Energy efficiency requires
a design that is optimized by realistic loads prediction, careful system
selection, and full control provisions.
10 CFR 435.110 10.2.2 Building Operating Documentation
10.2.2.1 The building construction drawings and specifications must
show system types, sizes, performance criteria, controls, and materials
intended for use prior to construction. The system designer shall
provide or specify that documentation be provided for the education and
guidance of the building operator showing the actual elements that have
been installed, how they have been installed, how they performed during
testing, and how they operate as a system in the completed facility.
Since minimum energy use is the ultimate goal, operating procedures are
one of the major factors in controlling energy use in buildings. The
activities of building occupants and operators can result in differences
as great as two to one in the energy consumption of essentially similar
buildings. While neither the designer nor these standards can control
the way the building is actually operated, the designer shall contribute
to the education and guidance of the building operator by including this
documentation in the contract specifications.
10.2.2.2 The building operator shall be provided with the following:
10.2.2.2.1 As-built drawings and specifications;
10.2.2.2.2 Operating manuals with a schematic diagram, sequence of
operation and system operating criteria for each and all systems
installed;
10.2.2.2.3 Where the building systems are complex, a comprehensive
balancing and testing program and report to demonstrate the energy
performance capabilities of the system; and
10.2.2.2.4 Maintenance manuals with complete information for all
major components in the facility.
10 CFR 435.110 10.3 Minimum Requirements
10.3.1 Each distinct utility-provided energy service shall be
metered. This shall apply to central and individual tenant meters.
Such meters shall be located, or arranged, so that the meter can be
visually monitored.
10.3.2 Each distinct commercially-provided energy service shall have
a system to measure and record the amount of energy being delivered,
based on the energy content.
10.3.3 The energy delivery systems shall be arranged to allow
individual measurement of occupant lighting and outlet services,
production processes, auxiliary systems, service water heating, space
heating, space cooling, and HVAC delivery systems.
10.3.4 Provisions shall be made for the measurement of energy inputs
and outputs (flow, temperature, pressure, etc.) to determine equipment
energy consumption and/or installed performance capabilities and
efficiencies of all heating, cooling, and HVAC delivery systems
equipment, greater than 20 kVA or 60,000 Btu/h energy input.
10 CFR 435.110 10.3.5 Energy Measurement lnstrumentation
10.3.5.1 In buildings or tenant areas with electric service greater
than 150 kVA or fuel use greater than 500,000 Btu/h, energy use shall be
measured for electrical lighting, miscellaneous power outlets, HVAC
systems and equipment, service hot water, and process loads and when the
peak use of:
10.3.5.1.1 Production processes, including manufacturing, computers,
laundries, kitchens, etc., is greater than 100 kVA or 300,000 Btu/h;
10.3.5.1.2 Auxiliary systems and service water heating is greater
than 100 kVA or 300,000 Btu/h;
10.3.5.1.3 Space heating (including reheat) is greater than 100 kVA
or 300,000 Btu/h;
10.3.5.1.4 Space cooling is greater than 100 kVA or 300,000 Btu/h;
and
10.3.5.1.5 HVAC delivery systems is greater than 100 kVA or 300,000
Btu/h.
10.3.5.1.6 Exception to section 10.3.5.1:
(a) When there is an energy service for only 2 of the 6 categories
listed, a single measurement may be made for the larger of the two
energy services and the second use determined by subtraction from the
primary service measurements.
10 CFR 435.110 10.3.6 HVAC System Controls
10.3.6.1 The designer shall designate, specify, or otherwise show in
the construction documents the type of controls and control systems
needed. This shall include a description or sequence of control of the
system's operational procedures.
10.3.6.2 Controls may be electric, pneumatic, electronic, or direct
digital. Control action may be ''on/off'', or proportional that can use
manual, automatic, or remote reset and can have rate of action or
derivative action compensation as designated by the designer. Control
devices may be provided by the manufacturers of equipment or by the
field installers, but all shall be compatible with the design sequence
of control. The designer shall designate accuracy and long term
requirements for controls.
10.3.6.3 All primary energy conversion equipment such as boilers,
heat exchangers, refrigeration units, furnaces and heat pumps shall have
a load activated local control loop for each piece of equipment.
Controls for multiple equipment shall integrate the individual control
units or provide system control for all the units.
10.3.6.4 All energy delivery systems shall have a local control loop
for each system.
10.3.6.5 Energy consuming systems or components with a peak use
greater than 1 kW or 3,500 Btu/h shall be provided with a means of
shut-off when occupancy or weather conditions do not require its
operation.
10.3.6.6 The control equipment provided for local control loops
except for ''on/off'' and self-contained sensor devices shall be
arranged so that sensing, control action, and control setting variables
can be read or tested at the device.
10.3.6.7 Control loops for terminal unit zones with less than 24
hours per day or 7 days per week occupancy shall have separate control
points for day and night heating and cooling. The devices shall be
capable of local resetting, and have provisions for remote management
system selection of the occupied or unoccupied heating or cooling mode
of operation.
10 CFR 435.110 10.3.7 Central Monitoring and Control Systems
10.3.7.1 A central monitoring and control system shall be provided in
any building or submetered tenant space exceeding 40,000 ft /2/ in gross
floor area.
10.3.7.2 The minimum energy management requirements for such a system
shall be to:
10.3.7.2.1 Read and retain daily totals for all energy measurement
instruments;
10.3.7.2.2 Total all energy values weekly and record and retain
values placed on a summary report;
10.3.7.2.3 Record and plot hourly outdoor and indoor temperatures
against real time and summarize and report for each year in a format
compatible with degree-days or bin temperature;
10.3.7.2.4 Based on time schedules, turn on or off any HVAC or
service water heating system or equipment;
10.3.7.2.5 Based on time schedules, turn on or off major building
lighting and occupancy power circuits;
10.3.7.2.6 Reset local loop control systems for HVAC equipment;
10.3.7.2.7 Monitor and verify operation of heating, cooling and
energy delivery systems;
10.3.7.2.8 Monitor and verify operation of lighting and occupant
power, auxiliary and service hot water systems;
10.3.7.2.9 Provide readily accessible override controls so that
time-based HVAC and lighting controls may be temporarily overridden
during off hours; and
10.3.7.2.10 Provide optimum start/stop for HVAC systems.
10 CFR 435.110 10.3.8 Completion Requirements
10.3.8.1 The building construction documents shall describe the
requirements for placing all energy management systems in operation.
This includes check-out procedures and all controls and metering
equipment operational information.
10.3.8.2 The building construction documents shall describe the
requirements for balancing and check-out procedures for all HVAC systems
and equipment. All HVAC system balancing shall be required to be
accomplished in a manner to minimize throttling losses. In air systems,
fan speeds shall be required to be adjusted to meet design conditions.
Water systems shall be required to be proportionally adjusted to
minimize throttling losses and then corrected to design flow conditions
by trimming the pump impeller or changing pump speed. The design
specifications shall state that a pump shall not be brought to final
flow conditions by valving.
10.3.8.3 The building construction documents shall describe the
requirements for control system testing to assure that control elements
are calibrated, ranges adjusted, set points ascertained, and full travel
of moveable elements assured. All elements in the control system shall
be tested with the system in operation.
10 CFR 435.110 10.3.9 Energy Performance Testing
10.3.9.1 The building construction documents shall describe the
requirements for determining building energy performance in the
completed, operational building.
10.3.9.2 The building energy performance testing shall be performed
in winter for heating and in summer for cooling. These tests shall
ascertain the in-site capabilities of all HVAC systems and equipment.
Internal building loads shall be accounted for in assessing cooling
performance. Heating performance shall be determined during unoccupied
night time periods during winter weather. If any internal load, such as
lighting, contributes to building heating, such loads shall be accounted
for in assessing heating performance.
10.3.9.3 Energy use measurements shall be made for the overall
building system while HVAC system performance is being tested. Each
energy management and control system shall be used to determine energy
use for:
10.3.9.3.1 Utility energy;
10.3.9.3.2 Commercial service energy:
10.3.9.3.3 Occupant lighting and receptacle power;
10.3.9.3.4 Production process energy;
10.3.9.3.5 Auxiliary systems and service water heating energy;
10.3.9.3.6 Space heating energy;
10.3.9.3.7 Space cooling energy; and
10.3.9.3.8 HVAC delivery system energy.
10.3.9.3.9 Test periods shall be at least six (6) hours in duration.
Hourly outdoor and indoor temperatures, solar intensity during a day
test, and wind speed during a night test shall be recorded.
10.3.9.4 The building energy performance test data shall, at minimum,
measure energy use and outdoor temperatures hourly for each test period.
10 CFR 435.110 10.3.10 Documentation Data Requirements
10.3.10.1 As-built information shall be provided for all the
following energy-related features of the building:
10.3.10.1.1 Thermal and solar/optical transmission characteristics of
the building envelope, including infiltration;
10.3.10.1.2 The operating characteristics of the HVAC, lighting, and
service water heating equipment and systems;
10.3.10.1.3 Internal heat gain contributed by equipment and
processes; and
10.3.10.1.4 The operating characteristics of controls.
10.3.10.2 A summary report shall be provided outlining the design
basis data for the building envelope, the internal heat gains, the
weather extremes, major heating/cooling equipment sizes and sequence of
operation.
10.3.10.3 The construction documents shall require that shop
drawings, schematic diagrams, control sequence, maintenance manuals, and
operating instructions, with data on all HVAC, auxiliary equipment and
service water heating systems be provided to the owner.
10.3.10.4 A system balancing report shall be provided that follows
National Environmental Balancing Bureau or the Association of Air
Balancing Council formats with an extra section summarizing the
energy-related values gathered during balancing.
10.3.10.5 An energy performance test report shall be provided showing
all the data gathered during the energy performance tests. The results
shall be presented in a format that provides convenient comparison with
design values.
10 CFR 435.111Building energy cost compliance alternative.
10 CFR 435.111 11.1 General
11.1.1 This section provides an alternative compliance path that
allows greater flexibility in the design of energy efficient buildings
using an annual energy cost method. Energy cost is used as the common
denominator in determining compliance. Using unit costs rather than
units of energy or power such as Btu, kWh or kW allows the energy use
contribution of different fuel sources at different times to be added
and compared. This path allows for innovation in designs, materials,
and equipment, such as daylighting, passive solar heating, heat
recovery, better zonal temperature control, thermal storage, and other
applications of off-peak electrical energy, that cannot be adequately
evaluated by the prescriptive or system performance alternatives found
in sections 3.4, 3.5, 5.4, 5.5, and 7.4. This compliance path is
intended for design comparisons only and is not intended to be used to
either predict, document, or verify annual energy consumption or annual
energy costs.
11.1.2 The Building Energy Cost Compliance Alternative is to be used
in lieu of the prescriptive or system performance methods and in
conjunction with the minimum requirements found in sections 3.3, 4.3,
5.3, 6.3, 7.3, 8.3, 9.3 and 10.3.
11.1.3 Compliance. Compliance under this method requires detailed
energy analyses of the entire Proposed Design, referred to as the Design
Energy Consumption; an estimate of annual energy cost for the proposed
design, referred to as the Design Energy Cost; and comparison against
an Energy Cost Budget. Compliance is achieved when the estimated Design
Energy Cost is less than or equal to the Energy Cost Budget (see Figure
11-1). This section provides instructions for determining the Energy
Cost Budget and for calculating the Design Energy Consumption and Design
Energy Cost. The Energy Cost Budget shall be determined through the
calculation of monthly energy consumption and energy cost of a Prototype
or Reference Building design configured to meet the requirements of
sections 3.0 through 10.0.
Insert illustration(s) 365
11.1.4 Designers are encouraged to employ the Building Energy Cost
Budget compliance method set forth in this section for evaluating
proposed design alternatives in preference to using the
prescriptive/system methods. The Building Energy Cost Budget
establishes the relative effectiveness of each design alternative in
energy cost savings, providing an energy cost basis upon which the
building owner and designer may select one design over another. This
Energy Cost Budget is the highest allowable calculated Energy Cost
Budget for a specific building design. Other alternative designs are
likely to have lower annual energy costs and life cycle costs than those
that minimally meet the Energy Cost Budget.
11.1.5 The Energy Cost Budget is a numerical target for annual energy
cost. It is intended to assure neutrality with respect to choices of
HVAC system type, architectural design, fuel choice, etc., by providing
a fixed, repeatable budget target that is independent of any of these
choices wherever possible (i.e., for the prototype buildings). The
Energy Cost Budget for a given building size and type will vary only
with climate, the number of stories, and the choice of simulation tool.
The specifications of the prototypes are necessary to assure
repeatability, but have no other significance. They are not recommended
energy conserving practice, or even physically reasonable practice for
some climates or buildings, but represent a reasonable worst case of
energy cost resulting from compliance with the spirit and the letter of
sections 3.0 through 10.0.
10 CFR 435.111 11.2 Determination of the Annual Energy Cost Budget
11.2.1 The annual Energy Cost Budgets shall be determined in
accordance with the Prototype Building Method in section 11.2.5, or the
Reference Building Method in section 11.2.5. Both methods calculate an
annual Energy Cost by summing the 12 monthly Energy Cost Budgets. Each
monthly Energy Cost Budget is the product of the monthly Building Energy
Consumption of each type of energy used multiplied by the monthly Energy
Cost per unit of energy for each type of energy used.
11.2.2 The Energy Cost Budget shall be determined in accordance with
Equation 11-1 as follows:
ECB=ECBjan+ . . . ECBm+ . . . +ECBdec
Based on:
ECBm=BECONm1 ECOSm1+ . . . +BECONmi ECOSmi
Where:
ECB=The annual Energy Cost Budget
ECBm=The monthly Energy Cost Budget
BECONmi=The monthly Budget Energy Consumption of the ith type of
energy
ECOSmi=The monthly Energy Cost, per unit of the ith type of energy
11.2.3 The monthly Energy Cost Budget shall be determined using
current rate schedules or contract prices available at the building site
for all non-depletable types of energy purchased. These costs shall
include demand charges, rate blocks, time of use rates, interruptable
service rates, delivery charges, taxes, and all other applicable rates
for the type, location, operation, and size of the proposed design. The
monthly Budget Energy Consumption shall be calculated from the first day
through the last day of each month, inclusive.
11.2.4 The Energy Cost Budget, Design Energy Consumption and Design
Energy Cost calculations are applicable only for determining compliance
with these standards. They are not predictions of actual energy
consumption or costs of the proposed building after construction.
Actual experience will differ from these calculations due to variations
such as occupancy, building operation and maintenance, weather, energy
use not covered by these standards, changes in energy rates between
design of the building and occupancy, and precision of the calculation
tool.
10 CFR 435.111 11.2.5 Prototype Building Procedure
11.2.5.1 The Prototype Building procedure shall be used for all
building types listed below. For mixed-use buildings the Energy Cost
Budget is derived by allocating the floor space of each building type
within the floor space of the prototype building. For buildings not
listed below, the Reference Building procedure of section 11.2.5 shall
be used.
11.2.5.1.1 Prototype buildings include:
(a) Assembly;
(b) Office (Business);
(c) Retail (Mercantile);
(d) Warehouse (Storage);
(e) School (Educational);
(f) Hotel/Motel;
(g) Restaurant;
(h) Health/Institutional; and
(i) Multi-Family.
10 CFR 435.111 11.2.5.2 Use of the Prototype Building to Determine the
Energy Cost Budget
11.2.5.2.1 Determine the building type of the Proposed Design using
the categories in section 11.2.5.1. Using the appropriate Prototype
Building characteristics from Tables 11-1 through 11-8, the building
shall be simulated using the same gross floor area and number of floors
for the Prototype Building as in the Proposed Design.
11.2.5.2.3 The form, orientation, occupancy and use profiles for the
Prototype Building shall be fixed as described in section 11.5.3.
Envelope, lighting, other internal loads and HVAC systems and equipment
shall meet the prescriptive or system requirements of section 3.0
through 10.0 and are standardized inputs.
10 CFR 435.111 11.2.6 Reference Building Method
11.2.6.1 The Reference Building procedure shall be used only when the
Proposed Design cannot be represented by one or a combination of the
Prototype Building listed in Section 11.2.5.1 or the assumptions for the
Prototype Building in Section 11.5, such as occupancy and use-profiles,
do not reasonably represent the Proposed Design.
10 CFR 435.111 11.2.6.2 Use of the Reference Building to Determine the
Energy Cost Budget
11.2.6.2.1 Each floor shall be oriented in the same manner for the
Reference Building as in the Proposed Design. The form, gross and
conditioned floor areas of each floor and the number of floors shall be
the same as in the Proposed Design. All other characteristics, such as
lighting, envelope and HVAC systems and equipment, shall meet the
prescriptive/system requirements of Section 3.0 through 10.0.
10 CFR 435.111 11.2.7 Calculation Procedure and Simulation Tool
11.2.7.1 The Prototype or Reference Buildings shall be modeled using
the criteria of section 11.5 and section 11.6. The modeling shall use a
climate data set appropriate for both the site and the complexity of the
energy conserving features of the design. ASHRAE Weather Year for
Energy Calculations (WYEC) data or bin weather data shall be a default
choice.
10 CFR 435.111 11.3 Determination of the Design Energy Consumption and
Design Energy Cost
11.3.1 The Design Energy Consumption shall be calculated by modeling
the Proposed Design using the same methods, assumptions, climate data,
and simulation tool as were used to establish the Energy Cost Budget,
except as explicitly stated in 11.5. The Design Energy Cost shall be
calculated per Equation 11-3. If the Proposed Design includes
cogeneration or non-depletable energy sources designed for the sale of
energy off-site, then energy cost and income resulting from outside
sales shall not be used to reduce the Design Energy Costs. Such systems
shall be modeled as operating to supply energy needs of the Proposed
Design only.
DECOS=DECOSjan+ . . . DECOSm . . . . +DECOSdec
Based on:
DECOSm=DECONm1 ECOSm1+ . . . +DECONmi ECOSmi
Where:
DECOS=The annual Design Energy Cost
DECOSm=The monthly Design Energy Cost
ICONmi=The monthly Design Energy Consumption of the ith type of
energy
ECOSmi=The monthly Energy Cost per unit of the ith type of energy
The DECONmi shall be calculated from the first day through the last
day of the month, inclusive.
10 CFR 435.111 11.4 Compliance
11.4.1 If the Design Energy Cost is less than or equal to the Energy
Cost Budget, and all of the minimum requirements of sections 3.0 through
10.0 are met, the Proposed Design complies with the standards.
10 CFR 435.111 11.5 Standard Calculation Procedure
11.5.1 The Standard Calculation Procedure consists of methods and
assumptions for calculating the Energy Cost Budget for the Prototype or
Reference Building and the Design Energy Consumption and Design Energy
Cost of the Proposed Design. In order to maintain consistency between
the Energy Cost Budget and the Design Energy Cost, the input assumptions
to be used are stated below. These inputs shall be used to determine
the Energy Cost Budget and the Design Energy Consumption.
11.5.2 Prescribed assumptions shall be used without variation.
Default assumptions shall be used unless the designer can demonstrate
that a different assumption better characterizes the building's energy
use over its expected life. No modified default assumptions shall be
used in modeling both the Prototype or Reference Building and the
Proposed Design unless the designer demonstrates clear cause to do
otherwise. Special procedures for speculative buildings are discussed
in section 11.5.9. Shell buildings may not use section 11.0.
10 CFR 435.111 11.5.3 Orientation and Shape
11.5.3.1 The Prototype Building shall consist of the same number of
stories, and gross and conditioned floor area as the Proposed Design,
with equal area per story. The building shape shall be rectangular,
with a 2.5:1 aspect ratio. The long dimensions of the building shall
face East and West. This is intended to provide an energy budget that
can be met even if there are unfavorable site constraints. The
fenestration shall be uniformly distributed in proportion to exterior
wall area.
11.5.3.2 Floor-to-floor height for the Prototype Building shall be 13
ft except for dwelling units in hotels/motels and multi-family high rise
residential buildings where floor-to-floor height shall be 9.5 ft.
11.5.3.3 The Reference Building shall consist of the same number of
stories, and gross floor area for each story as the Proposed Design.
Each floor shall be oriented in the same manner as the Proposed Design.
The geometric form shall be the same as the Proposed Design.
10 CFR 435.111 11.5.4 Internal Loads
11.5.4.1 The systems and types of energy specified in this section
are intended only as constraints in calculating the Energy Cost Budget.
They are not intended as either requirements or recommendations for
either systems or the type of energy to be used in the Proposed Design
or for calculation of Design Energy Cost.
11.5.4.2 Internal loads for multi-family high rise residential
buildings are presented in Table 11-1. These assumptions shall be
prescribed assumptions. Internal loads for other building types shall
be modeled as noted in this subsection.
10 CFR 435.111 11.5.4.2.1 Occupancy
(a) Occupancy schedules shall be Default Assumptions. The same
assumptions shall be made in computing Design Energy Consumption as were
used in calculating the Energy Cost Budget.
(b) Table 11-2, Occupancy Density, establishes the density, in ft /2/
/person of conditioned floor area, to be used for each building type.
Table 11-3, Building Schedule Percentage Multipliers, establishes the
percentage of total occupants in the building by hour of the day for
each building type.
10 CFR 435.111 11.5.4.2.2 Lighting
(a) Interior Lighting Power Allowance (ILPA), for calculating the
Energy Cost Budget shall be determined from section 3.0. The lighting
power used to calculate the Design Energy Consumption shall be the
actual adjusted power for lighting in the Proposed Design. If the
lighting controls in the Proposed Design are more effective at saving
energy than those required by section 3.3, the actual installed lighting
power shall be used along with the schedules reflecting the action of
the controls to calculate the Design Energy Consumption. This actual
installed lighting power shall not be adjusted by the Power Adjustment
Factors listed in Table 3.5-2.
(b) Lighting energy profiles are shown in Table 11-3 that establish
the percentage of the lighting load switched-on in each Prototype or
Reference Building by hour of the day. These profiles are default
assumptions and can be changed when calculating the Energy Cost Budget
to provide, for example, a 12 hour rather than an 8 hour work day.
10 CFR 435.111 11.5.4.2.3 Receptacles
(a) Receptacle loads and profiles are default assumptions. The same
assumptions shall be made in calculating Design Energy Consumption as
were used in calculating the Energy Cost Budget.
(b) Receptacle loads include all general service loads that are
typical in a building. These loads exclude any process electrical usage
and HVAC primary or auxiliary electrical usage. Table 11-4, Receptacle
Power Densities, establishes the density, in W/ft /2/ , to be used for
each building type. The receptacle energy profiles shall be the same as
the lighting energy profiles in Table 11-3. This profile establishes
the percentage of the receptacle load that is switched on by hour of the
day and by building type.
10 CFR 435.111 11.5.5 Building Exterior Envelope
10 CFR 435.111 11.5.5.1 Insulation and Glazing
11.5.5.1.1 The insulation and glazing characteristics of the
Prototype and Reference Building envelope shall be determined by using
the first column under ''Base Case'', with no assumed overhangs for the
appropriate Alternate Component Tables (ACP) in section 5.0, as defined
by climate range. The insulation and glazing characteristics from this
ACP are Prescribed Assumptions for Prototype and Reference Buildings for
calculating the Energy Cost Budget. In calculating the Design Energy
Consumption of the Proposed Design, the envelope characteristics of the
Proposed Design shall be used.
10 CFR 435.111 11.5.5.2 Infiltration
11.5.5.2.1 For Prototype and Reference Buildings, infiltration
assumptions shall be prescribed assumptions for calculating the Energy
Cost Budget and default assumptions for the Design Energy Consumption.
Infiltration shall impact perimeter zones only.
11.5.5.2.2 When the HVAC system is switched ''on'', no infiltration
shall be assumed. When the HVAC system is switched ''off'', the
infiltration rate for buildings with or without operable windows shall
be assumed to be 0.038 cfm/ft /2/ of gross exterior wall. Hotels/motels
and multi-family high rise residential buildings shall have infiltration
rates of 0.038 cfm/ft /2/ of gross exterior wall area at all times.
10 CFR 435.111 11.5.5.3 Envelope and Ground Absorptivities
11.5.5.3.1 For Prototype and Reference Buildings, absorptivity
assumptions shall be prescribed assumptions for computing the Energy
Cost Budget and default assumptions for computing the Design Energy
Consumption. The solar absorptivity of opaque elements of the building
envelope is assumed to be 70%. The solar absorptivity of ground
surfaces is assumed to be 80% (20% reflectivity).
10 CFR 435.111 11.5.5.4 Window Management
11.5.5.4.1 For the Prototype and Reference Building, window
management drapery assumptions shall be prescribed assumptions for
setting the Energy Cost Budget. No draperies shall be the default
assumption for computing the Design Energy Consumption. Glazing is
assumed to be internally shaded by medium-weight draperies, closed
one-half time. The draperies shall be modeled by assuming that one-half
the area in each zone is draped and one-half is not. If
manually-operated draperies, shades, or blinds are to be used in the
Proposed Design, the Design Energy Consumption shall be calculated by
assuming they are effective over one-half the glazing area in each zone.
10 CFR 435.111 11.5.5.5 Shading
11.5.5.5.1 For Prototype and Reference buildings and the Proposed
Design, shading by permanent structures, terrain, and vegetation shall
be taken into account for computing energy consumption, whether or not
these features are located on the building site. A permanent fixture is
one that is likely to remain for the life of the Proposed Design.
10 CFR 435.111 11.5.6 HVAC Systems and Equipment
11.5.6.1 The specifications and requirements for the HVAC systems of
the Prototype and Reference Buildings shall be those in Table 11-5, HVAC
Systems for Prototype and Reference Buildings. For the calculation of
the Design Energy Consumption, the HVAC systems and equipment of the
Proposed Design shall be used.
11.5.6.2 The systems and types of energy presented in Table 11-5 are
intended only as constraints in calculating the Energy Cost Budget.
They are not intended as either requirements or recommendations for
either systems or the type of energy to be used in the Proposed Building
or for the calculation of the Design Energy Cost.
10 CFR 435.111 11.5.6.3 HVAC Zones
11.5.6.3.1 HVAC zones for calculating the Energy Cost Budget of the
Prototype or Reference Building shall consist of at least four perimeter
and one interior zones per floor. Prototype Buildings shall have one
perimeter zone facing each cardinal direction. The perimeter zones of
Prototype and Reference Buildings shall be 15 ft in width, or one-third
the narrow dimension of the building, when this dimension is between 30
ft and 45 ft inclusive, or one-half the narrow dimension of the building
when this dimension is less than 30 ft. Zoning requirements shall be a
default assumption for calculating the Energy Cost Budget. For
multi-family high rise residential buildings, the prototype building
shall have one zone per dwelling unit. The proposed design shall have
one zone per unit unless zonal thermostatic controls are provided within
units; in this case, two zones per unit shall be modeled. Building
types such as assembly or warehouse may be modeled as a single zone if
there is only one space.
11.5.6.3.2 For calculating the Design Energy Consumption, no fewer
zones shall be used than were in the Prototype and Reference Buildings.
The zones in the simulation shall correspond to the zones provided by
the controls in the Proposed Design. Thermally similar zones, such as
those facing one orientation on different floors, may be grouped
together for the purposes of either the Design Energy Consumption or
Energy Cost Budget simulation.
10 CFR 435.111 11.5.6.4 Equipment Sizing and Redundant Equipment
11.5.6.4.1 For calculating the Energy Cost Budget of Prototype or
Reference Buildings, HVAC equipment shall be sized to meet the
requirements of section 7.3.2, without using any of the exceptions. The
size of equipment shall be that required for the building without
process loads considered. The designer shall determine the final
equipment sizing including the process loads by separate calculations.
Redundant and/or emergency equipment need not be simulated if it is
controlled so that it will not be operated during normal operations of
the building. The designer shall document the installation of process
equipment and the size of process loads.
11.5.6.4.2 For calculating the Design Energy Consumption, actual air
flow rates and installed equipment size shall be used in the simulation,
except that excess capacity provided to meet process loads need not be
modeled if the process load was not modeled in setting Energy Cost
Budget. Equipment sizing in the simulation of the Proposed Design shall
correspond to the equipment actually selected for the design and the
designer shall not use equipment sized automatically by the simulation
tool.
11.5.6.4.3 Redundant and/or emergency equipment need not be simulated
if it is controlled to not be operated during normal operations of the
building.
10 CFR 435.111 11.5.7 Service Water Heating
11.5.7.1 The service water loads for Prototype and Reference
Buildings are defined in terms of Btu/h per person in Table 11-6. The
service water heating loads from Table 11-6 are prescribed assumptions
for multi-family high rise residential buildings and default assumptions
for all other buildings. The same service water heating load
assumptions shall be made in calculating Design Energy Consumption as
were used in calculating the Energy Cost Budget.
11.5.7.2 The service water heating system, including piping losses
for the Prototype Building, shall be modeled using the methods of the
ASHRAE Handbook, 1987 HVAC Systems and Applications Volume using a
system that meets all requirements of section 9.0. The service water
heating equipment for the Prototype or Reference Building shall be
either natural gas or 2 fuel oil, if natural gas is not available at
the site, or an electric heat pump.
11.5.7.3 Exception to section 11.5.7:
11.5.7.3.1 If electric resistance service water heating is preferable
to an electric heat pump when analyzed according to the criteria of
section 9.3.7.1 or when service water temperatures exceeding 145 F are
required for a particular application, electric resistance water heating
may be used.
10 CFR 435.111 11.5.8 Controls
11.5.8.1 All occupied conditioned spaces in the Prototype, Reference
and Proposed Design Buildings in all climates shall be simulated as
being both heated and cooled. The assumptions in this subsection are
prescribed assumptions. If the Proposed Design does not include
equipment for cooling or heating, the Design Energy Consumption shall be
determined by the specifications for calculating the Energy Cost Budget
as described in Table 11-7.
11.5.8.2 Exceptions to section 11.5.8:
11.5.8.2.1 If a building is to be provided with only heating or
cooling, both the Prototype or Reference Building and the Proposed
Design shall be simulated, using the same assumptions. If such an
assumption is made, the analysis shall show that the building interior
temperature meets the comfort criteria of ANSI/ASHRAE 55-1981 ''Thermal
Environmental Conditions for Human Occupancy,'' at least 98% of the
occupied hours during the year.
11.5.8.2.2 If warehouses are not intended to be mechanically cooled,
both the Energy Cost Budget and Design Energy Consumption shall be
modeled assuming no mechanical cooling; and
11.5.8.2.3 In climates where winter design temperature (97.5%
occurrence) is greater than 59 F, space heating need not be modeled.
11.5.8.3 Space temperature controls for the Prototype or Reference
Building, except multi-family high rise residential buildings shall be
set at 70 F for space heating and 75 F for space cooling with a
deadband per section 7.3.4.5. The system shut off during off-hours shall
be according to the schedule in Table 11-3, except that the heating
system shall cycle on if any space should drop below the night setback
setting of 55 F. There shall be no similar setpoint during the cooling
season. Lesser deadband ranges may be used in calculating the Design
Energy Consumption.
11.5.8.3.1 Exceptions to section 11.5.8.3:
(a) Setback shall not be modeled in determining either the Energy
Cost Budget or Design Energy Cost if setback is not realistic for the
Proposed Design, such as 24 hour/day operations. Health facilities need
not have night setback during the heating season;
(b) Hotel/motels and multi-family high rise residential buildings
shall have a night setback temperature of 60 F from 11:00 p.m. to 6:00
a.m. during the heating season; and
(c) If deadband controls are not to be installed, the Design Energy
Cost shall be calculated with both heating and cooling thermostat
setpoints set to the same value between 70 F and 75 F inclusive,
assumed to be constant for the year.
11.5.8.3.2 For multi-family buildings, the thermostat schedule for
the dwelling units shall be as in Table 11-8.
(a) The Prototype Building shall use the single zone schedule. The
Proposed Design shall use the two-zone schedule only if zonal
thermostatic controls are provided. For Proposed Designs that use heat
pumps employing supplementary heat, the controls used to switch on the
auxiliary heat source during morning warm-up periods shall be simulated
accurately. The thermostat assumptions for multi-family high-rise
buildings are prescribed assumptions.
11.5.8.4 When providing for outdoor air ventilation in calculating
the Energy Cost Budget, controls shall be assumed to close the outside
air intake to reduce the flow of outside air to 0 cfm during setback and
unoccupied periods. Ventilation using inside air may still be required
to maintain scheduled setback temperature. Outside air ventilation,
during occupied periods, shall be as required by ASHRAE Standard
62-1981, ''Ventilation for Acceptable Indoor Air,'' or the Proposed
Design, whichever is greater.
11.5.8.5 If humidification is to be used in the Proposed Design, the
same level of humidification and system type shall be used in the
Prototype or Reference Building. If dehumidification requires
subcooling of supply air, then reheat for the Prototype or Reference
Building shall be from recovered waste heat such as condenser waste
heat.
10 CFR 435.111 11.5.9 Speculative Buildings
10 CFR 435.111 11.5.9.1 Lighting
11.5.9.1.1 The interior lighting power allowance (ILPA) for
calculating the Energy Cost Budget shall be determined from Table 3.4-1.
The Design Energy Consumption may be based on an assumed adjusted
lighting power for future lighting improvements.
(a) The assumption about future lighting power used to calculate the
Design Energy Consumption must be documented so that the future
installed lighting systems may be in compliance with these standards.
Documentation must be provided to enable future lighting systems to use
either the Prescriptive method of section 3.4 or the Systems Performance
method of section 3.5.
(b) Documentation for future lighting systems that use the
Prescriptive method of section 3.4 shall be stated as a maximum adjusted
lighting power for the tenant spaces. The adjusted lighting power
allowance for tenant spaces shall account for the lighting power
provided for the common areas of the building.
(c) Documentation for future lighting systems that use the System
Performance method of section 3.5 shall be stated as a required lighting
adjustment. The required lighting adjustment is the whole building
lighting power assumed in order to calculate the Design Energy
Consumption minus the ILPA value from Table 3.4-1 that was used to
calculate the Energy Cost Budget. When the required lighting adjustment
is less than zero, a complete lighting design must be developed for one
or more representative tenant spaces, demonstrating acceptable lighting
within the limits of the assumed lighting power allowance.
10 CFR 435.111 11.5.9.2 HVAC Systems and Equipment
11.5.9.2.1 If the HVAC system is not completely specified in the
plans, the Design Energy Consumption shall be based on reasonable
assumptions about the construction of future HVAC systems and equipment.
These assumptions shall be documented so that future HVAC systems and
equipment may be in compliance with these standards.
10 CFR 435.111 11.6 The Simulation Tool
11.6.1 Annual energy consumption shall be simulated with a
multi-zone, 8760 hours per year building energy model. The model shall
account for:
11.6.1.1 The dynamic heat transfer of the building envelope such as
solar and internal gains;
11.6.1.2 Equipment efficiencies as a function of load and climate;
11.6.1.3 Lighting and HVAC system controls and distribution systems
by simulating the whole building;
11.6.1.4 The operating schedule of the building including night
setback during various times of the year; and
11.6.1.5 Energy consumption information at a level necessary to
determine the Energy Cost Budget and Design Energy Cost through the
appropriate utility rate schedules.
11.6.2 While the simulation tool should simulate an entire year on an
hour by hour basis (8760 hours), programs that approximate this dynamic
analysis procedure and provide equivalent results are acceptable.
11.6.3 Simulation tools shall be selected for their ability to
simulate accurately the relevant features of the building in question,
as shown in the tool's documentation. For example, a single zone model
shall not be used to simulate a large, multi-zone building, and a
steady-state model such as the degree-day method shall not be used to
simulate buildings when equipment efficiency or performance is
significantly affected by the dynamic patterns of weather, solar
radiation, and occupancy. Relevant energy-related features shall be
addressed by a model such as daylighting, atriums or sunspaces, night
ventilation or thermal storage, chilled water storage or heat recovery,
active or passive solar systems, zoning and controls of heating and
cooling systems, and ground-coupled buildings. In addition, models
shall be capable of translating the Design Energy Consumption into
energy cost using actual utility rate schedules with the coincidental
electrical demand of a building. Examples of public domain models
capable of handling such complex building systems and energy cost
translations available in the United States are DOE-2.1C and BLAST 3.0
and in Canada, Energy Systems Analysis Series.
11.6.4 All simulation tools shall use scientifically justifiable
documented techniques and procedures for modeling building loads,
systems, and equipment. The algorithms used in the program shall have
been verified by comparison with experimental measurements, loads,
systems, and equipment.
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10 CFR 435.112Building energy compliance alternative.
10 CFR 435.112 12.1 General
12.1 This section provides an alternative path for compliance with
the standards that allow for greater flexibility in the design of energy
efficient buildings using an annual energy target method. This path, as
does the path used in section 11.0, provides an opportunity for the use
of innovative designs, materials, and equipment such as daylighting,
passive solar heating, heat recovery, and thermal storage as well as
other applications of off-peak electrical energy where they cannot be
adequately evaluated by the prescriptive or system performance methods
found in sections 3.4, 3.5, 5.4, 5.5, 7.4., and 9.4.
12.1.2 The Building Energy Use Budget Target alternative may be used
as an option to the Building Energy Cost Budget method in Section 11.0
and is to be used in lieu of the prescriptive and system performance
methods and in conjunction with sections 3.3, 4.3, 5.3, 6.3, 7.3, 8.3,
9.3 and 10.3.
12.1.3 Compliance under this section is demonstrated by showing that
the calculated annual energy usage for the Proposed Design is less than
or equal to a calculated Energy Use Budget. (See Figure 12-1). A
life-cycle cost economic analysis is required to evaluate alternative
fuel sources and energy reduction strategies. The procedures in this
chapter are intended only for establishing design compliance, and are
not intended to be used either to predict, document or verify annual
energy consumption or annual energy costs.
Insert illustration(s) 402
12.1.4 Compliance under the Building Energy Use Budget method
requires a detailed energy analysis, using a conventional simulation
tool, of the Proposed Design. A life-cycle cost analysis shall be used
to select the fuel source for the HVAC systems, service hot water, and
process loads from available alternatives. The Annual Energy
Consumption of the Proposed Design with the life-cycle cost-effective
fuel selection is calculated to determine the modeled energy
consumption, called the Design Energy Use.
12.1.5 The Design Energy Use is defined as the energy that is
consumed within the five foot line of a proposed building per ft2 over a
24 hour day, 365-day year period and specified operating hours. The
calculated Design Energy Use is then compared to a calculated Energy Use
Budget.
12.1.6 Compliance. The Energy Use Budget is determined by calculating
the annual energy usage for a Reference or Prototype Building that is
configured to comply with the provisions of Section 11.0 for such
buildings, except that the fuel source(s) of the Prototype or Reference
Building shall be the same life-cycle cost-effective source(s) selected
for the Proposed Design. If the Design Energy Use is less than or equal
to the Energy Use Budget then the proposed design complies with these
standards.
12.1.7 This section provides instructions for determining the Design
Energy Use and for calculating the Energy Use Budget. The Energy Use
Budget is the highest allowable calculated annual energy consumption for
a specified building design. Designers are encouraged to design
buildings whose Design Energy Use is lower than the Energy Use Budget.
Incorporated in this section is an optional life-cycle cost economic
analysis procedure that may be used by the designer to examine the
economic feasibility of all energy design alternatives and to produce a
more optimum design.
10 CFR 435.112 12.2 Determination of the Annual Energy Budget
12.2.1 The Energy Use Budget shall be calculated for the appropriate
Prototype or Reference Building in accordance with the procedures
prescribed in section 11.2 with the following exceptions: The Energy
Use Budget shall be stated in units of Btu/ft2. yr and the simulation
tool shall segregate the calculated energy consumption by fuel type
producing an Energy Use Budget for each fuel (the fuel selections having
been made by a life cycle cost analysis in determining the proposed
design).
12.2.2 The Energy Use Budget (EUB) is calculated similarly for the
Reference or Prototype Building using the following equation:
EUB=EUB1 f1+EUB2 f2+.....+EUBi fi
Where EUB1, EUB2, . . . EUBi are the calculated annual energy targets
for each fuel used in the Reference or Prototype building and f1, f2, .
. . fi are the energy conversion factors given in Table 12-1. In lieu
of case by case calculation of the Energy Use Budget, the designer may
construct Energy Use Budget tables for the combinations of energy
source(s) that may be considered in a set of project designs, such as
electric heating, electric service water, and gas cooling or oil
heating, gas service water and electric cooling. The values in such
optional Energy Use Budget tables shall be equal to or less than the
corresponding Energy Use Budgets calculated on a case by case basis
according to this section. Energy Use Budget tables shall be
constructed to correspond to the climatic regions and building types in
accordance with provisions for Prototype or Reference Building models in
Section 11.0 of these standards.
Insert illustration(s) 406
10 CFR 435.112 12.3 Determination of the Design Energy Use
12.3.1 The Design Energy Use shall be calculated by modeling the
Proposed Design using the same methods, assumptions, climate data, and
simulation tool as were used to establish the Energy Use Budget, but
with the design features that will be used in the final building design.
The simulation tool used shall segregate the calculated energy
consumption by fuel type giving an annual Design Energy Use for each
fuel. The sum of the Design Energy Uses multiplied by the fuel
conversion factors in Table 12-1 yields the Design Energy Use for the
proposed design:
DEU=DEU1 f1+DEU2 f2+....+DEUi fi
Where f1, f2, . . . fi are the fuel conversion factors in Table 12-1.
10 CFR 435.112 12.3.2 Required Life Cycle Cost Analysis for Fuel
Selection
12.3.2.1 Fuel sources selected for the Proposed Design and Prototype
or Reference buildings shall be determined by considering the energy
cost and other costs and benefits that occur during the expected
economic life of the alternative.
12.3.2.2 The designer shall use the procedures set forth in Subpart A
of 10 CFR Part 436 to make this determination. The fuel selection life
cycle cost analysis shall include the following steps:
12.3.2.2.1 Determine the feasible alternatives for energy sources of
the Proposed Design's HVAC systems, service hot water, and process
loads.
12.3.2.2.2 Model the Proposed Design including the alternative HVAC
and service water systems and conduct an annual energy analysis for each
fuel source alternative using the simulation tool specified in this
section. The annual energy analysis shall be computed on a monthly
basis in conformance with section 11.0 of these standards with the
exception that all process loads shall be included in the calculation.
Separate the output of the analysis by fuel type.
12.3.2.2.3 Determine the unit price of each fuel using information
from the utility or other reliable local source. During rapid changes
in fuel prices it is recommended that an average fuel price for the
previous twelve months be used in lieu of the current price. Calculate
the annual energy cost of each energy source alternative in accordance
with procedures in Section 11.0 for the Design Energy Cost. Estimate
the initial cost of the HVAC and service water systems and other initial
costs such as energy distribution lines and service connection fees
associated with each fuel source alternative. Estimate other costs and
benefits for each alternative including, but not necessarily limited to,
annual maintenance and repair, periodic and one time major repairs and
replacements and salvage of the energy and service water systems. Cost
estimates shall be prepared using professionally recognized cost
estimating tools, guides and techniques.
12.3.2.2.4 Perform a life cycle cost analysis using the procedure
specified in section 12.3.2.
12.3.2.2.5 Compare the total life cycle cost of each energy source
alternative. The alternative with the lowest total life-cycle cost
shall be chosen as the energy source for the proposed design.
10 CFR 435.112 12.4 Compliance
12.4.1 Compliance with this section is demonstrated if the Design
Energy Use is equal to or less than the Energy Use Budget.
DEU>EUB
12.4.2 The energy consumption shall be measured at the building five
foot line for all fuels. Energy consumed from non-depletable energy
sources and heat recovery systems shall not be included in the Design
Energy Use calculations. The thermal efficiency of fixtures, equipment,
systems or plants in the proposed design shall be simulated by the
selected calculation tool.
10 CFR 435.112 12.5 Standard Calculation Procedure
12.5.1 The Standard Calculation Procedure consists of methods and
assumptions for calculating the Energy Use Budgets for Prototype and
Reference Buildings and the Design Energy Use for the Proposed Design.
In order to maintain consistency between the Energy Use Budgets and the
Design Energy Use, the input assumptions stated in section 11.5 are to
be used.
12.5.2 The terms Energy Cost Budget and Design Energy Cost or
Consumption used in section 11.0 correlate to Energy Use Budget and
Design Energy Use, respectively, in section 12.0.
10 CFR 435.112 12.6 The Simulation Tool
12.6.1 The criteria established in Section 11.0 for the selection of
a simulation tool shall be followed when using the compliance path
prescribed in Section 12.0.
10 CFR 435.112 12.7 Life Cycle Cost Analysis Criteria
12.7.1 The following life cycle cost criteria applies to the fuel
selection requirements of this chapter and to option life cycle cost
analyses performed to evaluate energy conservation design alternatives.
The fuel source(s) selection shall be made in accordance with the
requirements of Subpart A of 10 CFR Part 436. The implementation
calculations for the methodology of Subpart A of 10 CFR Part 436 is
provided in National Bureau of Standards Handbook 135 entitled ''Life
Cycle Cost Manual for the Federal Energy Management Program.'' When
performing life cycle cost analyses of optional energy conservation
opportunities the designer may use the life cycle cost procedures of
Subpart A of 10 CFR Part 436 or OMB Circular A-94 or an equivalent
procedure that meets the assumptions listed below:
12.7.1.1 The economic life of the Prototype Building and Proposed
Design shall be 25 years. Anticipated replacements or renovations of
energy related features and systems in the Prototype or Reference
Building and Proposed Design during this period shall be included in
their respective life cycle cost calculations.
12.7.1.2 The designer shall follow established professional cost
estimating practices when determining the costs and benefits associated
with the energy related features of the Prototype or Reference Building
and Proposed Design.
12.7.1.3 All costs shall be expressed in current dollars. General
inflation shall be disregarded. Differential escalation of prices
(prices estimated to rise faster or slower than general inflation) for
energy used in the life cycle cost calculations shall be those in effect
at the time of the life cycle cost calculations as published by the
Department of Energy's Energy Information Administration.
12.7.1.4 The economic effects of taxes, depreciation and other
factors not consistent with the practices of Subpart A of 10 CFR Part
436 shall not be included in the life cycle cost calculation.
10 CFR 435.112 Subpart B -- Voluntary Performance Standards for New Non-Federal Residential Buildings (Reserved)
10 CFR 435.112 Subpart C -- Mandatory Performance Standards for New Federal Residential Buildings
10 CFR 435.300Purpose.
(a) This subpart establishes voluntary energy conservation
performance standards for new residential buildings. The voluntary
energy conservation performance standards are designed to achieve the
maximum practicable improvements in energy efficiency and increases in
the use of non-depletable sources of energy.
(b) Voluntary energy conservation performance standards prescribed
under this subpart shall be developed solely as guidelines for the
purpose of providing technical assistance for the design of energy
conserving buildings, and shall be mandatory only for the design of
Federal buildings.
(c) The energy conservation performance standards will direct Federal
policies and practices to ensure that cost-effective energy conservation
features will be incorporated into the designs of all new residential
buildings designed and constructed by and for Federal agencies.
10 CFR 435.301Scope.
(a) The energy conservation performance standards for new Federal
residential buildings will apply to the design of all new residential
buildings except multifamily buildings more than three stories above
grade.
(b) The primary types of buildings built by or for the Federal
agencies, to which the energy conservation performance standards will
apply, are:
(1) Single-story single-family residences;
(2) Split-level single-family residences;
(3) Two-story single-family residences;
(4) End-unit townhouses;
(5) Middle-unit townhouses;
(6) End-units in multifamily buildings (of three stories above grade
or less);
(7) Middle-units in multifamily buildings (of three stories above
grade or less);
(8) Single-section mobile homes; and
(9) Multi-section mobile homes.
10 CFR 435.302Definitions.
(a) ANSI means American National Standards Institute.
(b) ASHRAE Handbook means American Society of Heating, Refrigerating
and Air-Conditioning Engineeers, Inc., ASHRAE Handbook, 1985
Fundamentals. Volume, 1-P Edition.
(c) ASTM means American Society of Testing and Measurement.
(d) British thermal unit (Btu) means approximately the amount of heat
required to raise the temperature of one pound of water from 59 F to 60
F.
(e) Building means any new residential structure:
(1) that includes or will include a heating or cooling system, or
both, or a domestic hot water system, and
(2) for which a building design is created after the effective date
of this rule.
(f) Building design means the development of plans and specifications
for human living space.
(g) Conservation Optimization Standard for Savings in Federal
Residences means the computerized calculation procedure that is used to
establish an energy consumption goal for the design of Federal
residential buildings.
(h) COSTSAFR means the Conservation Optimization Standard for Savings
in Federal Residences.
(i) DOE means U.S. Department of Energy.
(j) Domestic hot water (DHW) means the supply of hot water for
purposes other than space conditioning.
(k) Energy conservation measure (ECM) means a building material or
component whose use will affect the energy consumed for space heating,
space cooling, domestic hot water or refrigeration.
(l) Energy performance standard means an energy consumption goal or
goals to be met without specification of the method, materials, and
processes to be employed in achieving that goal or goals, but including
statements of the requirements, criteria evaluation methods to be used,
and any necessary commentary.
(m) Federal agency means any department, agency, corporation, or
other entity or instrumentality of the executive branch of the Federal
Government, including the United States Postal Service, the Federal
National Mortgage Association, and the Federal Home Loan Mortgage
Corporation.
(n) Federal residential building means any residential building to be
constructed by or for the use of any Federal agency in the Continental
U.S., Alaska, or Hawaii that is not legally subject to state or local
building codes or similar requirements.
(o) Life cycle cost means the minimum life cycle cost calculated by
using a methodology specified in subpart A of 10 CFR part 436.
(p) Point system means the tables that display the effect of the set
of energy conservation measures on the design energy consumption and
energy costs of a residential building for a particular location,
building type and fuel type.
(q) Practicable optimum life cycle energy cost means the energy costs
of the set of conservation measures that has the minimum life cycle cost
to the Federal government incurred during a 25 year period and including
the costs of construction, maintenance, operation, and replacement.
(r) Project means the group of one or more Federal residential
buildings to be built at a specific geographic location that are
included by a Federal agency in specifications issued or used by a
Federal agency for design or construction of the buildings.
(s) Prototype means a fundamental house design based on typical
construction assumptions. The nine prototypes in COSTSAFR are:
single-section manufactured house, double-section manufactured house,
ranch-style house, two-story house, split-level house, mid-unit
apartment, end-unit apartment, mid-unit townhouse, end-unit townhouse.
(t) Residential building means a new building that is designed to be
constructed and developed for residential occupancy.
(u) Set of conservation options means the combination of envelope
design and equipment measures that influences the long term energy use
in a building designed to maintain a minimum of ventilation level of 0.7
air changes per hour, including the heating and cooling equipment,
domestic hot water equipment, glazing, insulation, refrigerators and air
infiltration control measures.
(v) Shading coefficient means the ratio of the heat gains through
windows, with or without integral shading devices, to that occurring
through unshaded, 1/8-inch clear glass.
(w) Total annual coil load means the energy for space heating and/or
cooling with no adjustment for HVAC equipment efficiency.
(56 FR 3772, Jan. 31, 1991)
10 CFR 435.303Requirements for the design of a Federal residential
building.
(a) The head of each Federal agency responsible for the construction
of Federal residential buildings shall establish an energy consumption
goal for each building to be designed or constructed by or for the
agency.
(b) The energy consumption goal for a Federal residential building
shall be a total point score derived by using the micro-computer program
and user manual entitled ''Conservation Optimization Standard for
Savings in Federal Residences (COSTSAFR),'' unless the head of the
Federal agency shall establish more stringent requirements for that
agency.
(c) The head of each Federal agency shall adopt such procedures as
may be necessary to ensure that the design of a Federal residential
building is not less energy conserving than the energy consumption goal
established for the building.
10 CFR 435.304The COSTSAFR Program.
(a) The COSTSAFR Program (Version 3.0) provides a computerized
calculation procedure to determine the most effective set of energy
conservation measures, selected from among the measures included within
the Program that will produce the practicable optimum life cycle cost
for a type of residential building in a specific geographic location.
The most effective set of energy conservation measures is expressed as a
total point score that serves as the energy consumption goal.
(b) The COSTSAFR Program (Version 3.0) also prints out a point system
that identifies a wide array of different energy conservation measures
indicating how many points various levels of each measure would
contribute to reaching the total point score of the energy consumption
goal. This enables a Federal agency to use the energy consumption goal
and the point system in the design and procurement procedures so that
designers and builders can pick and choose among different combinations
of energy conservation measures to meet or exceed the total point score
required to meet the energy consumption goal.
(c) The COSTSAFR Program (Version 3.0) operates on a micro-computer
system that uses the MS DOS operating system and is equipped with an
8087 co-processor.
(d) The COSTSAFR Program (Version 3.0) may be obtained from:
National Technical Information Service; Department of Commerce;
Springfield, Virginia 22161; (202) 487-4600
(53 FR 32545, Aug. 25, 1988, as amended at 56 FR 3772, Jan. 31, 1991)
10 CFR 435.305 Alternative compliance procedure.
(a) If a proposed building design includes unusual or innovative
energy conservation measures which are not covered by the COSTSAFR
program, the Federal agency shall determine whether that design meets or
exceeds the applicable energy consumption goal in compliance with the
procedures set forth in this section.
(b) The Federal agency shall determine the estimated discounted
energy cost for the COSTSAFR prototype building design, which is the
most similar of the COSTSAFR prototypes to the proposed building design,
by --
(1) Printing out the COSTSAFR compliance forms for the prototype
showing the points attributable to levels of various energy conservation
measures;
(2) Calculating the estimated unit energy cost on the compliance
forms, on the basis of selecting the optimum levels on the compliance
forms or otherwise in the User's Manual for each energy conservation
measure; and
(3) Multiplying the estimated unit energy cost by 100.
(c) The Federal agency shall determine the estimated discounted
energy cost for the proposed building design by --
(1) Estimating the heating and cooling total annual coil loads of the
proposed building design with the DOE 2.1C computer program on the basis
of input assumptions including --
(i) Shading coefficients of 0.6 for summer and 0.8 for winter;
(ii) Thermostat setpoints of 78 degrees Fahrenheit for cooling, 70
degrees Fahrenheit for heating (6am to 12 midnight), and 60 degrees
Fahrenheit for Night Setback (12 midnight to 6 am, except for houses
with heat pumps);
(iii) The infiltration rate measured in air changes per hour as
calculated using appendix B of the COSTSAFR User's Manual;
(iv) Natural venting with a constant air change rate of 10 air
changes per hour --
(A) When the outdoor temperature is lower than the indoor
temperature, but not above 78 degrees Fahrenheit; and
(B) When the enthalpy of the outdoor air is lower than the indoor
air.
(v) Internal gains in accordance with the following table for a house
with 1540 square feet of floor area, adjusted by 0.35 Btu/ft /2/ /hr to
account for changes in lighting as the floor area varies from 1540
square feet --
(vi) Thermal transmittances for building envelope materials measured
in accordance with applicable ASTM procedures or from the ASHRAE
Handbook;
(vii) Proposed heating and cooling equipment types included in
COSTSAFR or having a certified seasonal efficiency rating;
(viii) Weather Year for Energy Calculations (WYEC) weather year data
(WYEC data are on tapes available from ASHRAE, 1791 Tullie Circle, N.E.,
Atlanta, Georgia 30329), or if unavailable, Test Reference Year (TRY)
weather data (obtainable from National Climatic Data Center, 1983 Test
Reference Year, Tape Reference Manual, TD-9706, Asheville, North
Carolina) relevant to project location.
(2) Estimating the discounted energy cost for the heating and cooling
energy loads, respectively, according to the following equation --
Discounted Energy Cost=
Where:
Total Annual Coil Load=the total heating or cooling annual coil load
calculated under paragraph (c)(1);
Fuel Cost=the heating or cooling fuel cost calculated in accordance
with sections 3.3.D and 3.3.E of the User's Manual;
UPW*=the uniform present worth discount factor; selected from the
last page of the compliance forms.
Equipment Efficiency=the test seasonal efficiency rating of the
heating and cooling equipment only (i.e., not including duct or
distribution system losses).
(3) Estimating the discounted energy cost for water heating and
refrigerator/freezer energy consumption --
(i) For equipment types covered by the COSTSAFR compliance forms, by
multiplying the estimated unit energy cost by 100; or
(ii)For equipment types not covered by COSTSAFR --
Discounted Energy Cost=
Where:
Fuel Cost and UPW* are as defined in paragraph (c)(2) of this
section; Annual Energy Consumption is as calculated in 10 CFR 430.22;
and Energy Factor is the measure of energy efficiency as calculated
under 10 CFR 430.22
(iii) (Reserved)
(4) Adding together the discounted energy costs calculated under
paragraphs (c)(2) and (c)(3) of this section;
(d) If the discounted energy cost of the proposed building design
calculated under paragraph (c)(4) of this section is equal to or less
than the discounted energy cost of the COSTSAFR prototype building
design calculated under paragraph (b) of this section, then the proposed
building design is in compliance with the applicable energy consumption
goal under this part.
(56 FR 3772, Jan. 31, 1991)
10 CFR 435.306Selecting a life cycle effective proposed building
design.
In selecting between or among proposed building designs which comply
with the applicable energy consumption goal under this part, each
Federal agency shall select the design which, in comparison to the
applicable COSTSAFR prototype, has the highest Net Savings or lowest
total life cycle costs calculated in compliance with subpart A of 10 CFR
part 436.
(56 FR 3773, Jan. 31, 1991)
10 CFR 435.306 Pt. 436
10 CFR 435.306 PART 436 -- FEDERAL ENERGY MANAGEMENT AND PLANNING
PROGRAMS
Sec.
436.1 Scope.
436.2 General objectives.
10 CFR 435.306 Subpart A -- Methodology and Procedures for Life Cycle
Cost Analyses
436.10 Purpose.
436.11 Definitions.
436.12 Life cycle cost methodology.
436.13 Presuming cost-effectiveness results.
436.14 Methodological assumptions.
436.15 Formatting cost data.
436.16 Establishing non-fuel cost data.
436.17 Establishing energy cost data.
436.18 Measuring cost-effectiveness.
436.19 Life cycle costs.
436.20 Net savings.
436.21 Savings-to-investment ratio.
436.22 Adjusted internal rate of return.
436.23 Estimated simple payback time.
436.24 Uncertainty analysis.
10 CFR 435.306 Subparts B -- E (Reserved)
10 CFR 435.306 Subpart F -- Guidelines for General Operations Plans
436.100 Purpose and scope.
436.101 Definitions.
436.102 General operations plan format and content.
436.103 Program goal setting.
436.104 Energy conservation measures and standards.
436.105 Emergency conservation plan.
436.106 Reporting requirements.
436.107 Review of plan.
436.108 Waivers.
Appendix A to Part 436 -- Energy Conservation Standards for General
Operations (Reserved)
Appendix B to Part 436 -- Goal Setting Methodology
Appendix C to Part 436 -- General Operations Energy Conservation
Measures
Appendix D to Part 436 -- Energy Program Conservation Elements
Authority: Energy Policy and Conservation Act, as amended, 42 U.S.C.
6361; Executive Order 11912, as amended, 42 FR 37523 (July 20, 1977);
National Energy Conservation Policy Act, Title V, Part 3, as amended.
42 U.S.C. 8251-8261.
Source: 44 FR 60669, Oct. 19, 1979, unless otherwise noted.
10 CFR 436.1 Scope.
This part sets forth the rules for Federal energy management and
planning programs to reduce Federal energy consumption and to promote
life cycle cost effective investments in building energy systems and
energy conservation measures for Federal building.
(55 FR 48220, Nov. 20, 1990)
10 CFR 436.2 General objectives.
The objectives of Federal energy management and planning programs
are:
(a) To apply energy conservation measures to, and improve the design
for construction of Federal buildings such that the energy consumption
per gross square foot of Federal buildings in use during the fiscal year
1995 is at least 10 percent less than the energy consumption per gross
square foot in 1985;
(b) To promote the methodology and procedures for conducting life
cycle cost analyses of proposed investments in building energy systems
and energy conservation measures; and
(c) To promote efficient use of energy in all agency operations
through general operations plans.
(55 FR 48220, Nov. 20, 1990)
10 CFR 436.2 Subpart A -- Methodology and Procedures for Life Cycle
Cost Analyses
Source: 55 FR 48220, Nov. 20, 1990, unless otherwise noted.
10 CFR 436.10Purpose.
This subpart establishes a methodology and procedures for estimating
and comparing the life cycle costs of Federal buildings, for determining
the life cycle cost effectiveness of energy conservation measures, and
for rank ordering life cycle cost effective energy conservation measures
in order to design a new Federal building or to retrofit an existing
Federal building.
10 CFR 436.11 Definitions.
As used in this subpart --
Base Year means the fiscal year in which a life cycle cost analysis
is conducted.
Building energy system means an energy conservation measure or any
portion of the structure of a building or any mechanical, electrical, or
other functional system supporting the building, the nature or selection
of which for a new building influences significantly the cost of energy
consumed.
Component price means any variable sub-element of the total charge
for a fuel or energy, including but not limited to such charges as
''demand charges,'' ''off-peak charges'' and ''seasonal charges.''
Demand charge means that portion of the charge for electric service
based upon the plant and equipment costs associated with supplying the
electricity consumed.
DOE means Department of Energy.
Energy conservation measures means measures that are applied to an
existing Federal building that improve energy efficiency and are life
cycle cost effective and that involve energy conservation, cogeneration
facilities, renewable energy sources, improvements in operation and
maintenance efficiencies, or retrofit activities.
Federal agency means ''agency'' as defined by 5 U.S.C. 551(1).
Federal building means an energy conservation measure or any
building, structure, or facility, or part thereof, including the
associated energy consuming support systems, which is constructed,
renovated, leased, or purchased in whole or in part for use by the
Federal Government and which consumes energy. Such term also means a
collection of such buildings, structures, or facilities and the energy
consuming support systems for such collection.
Investment costs means the initial costs of design, engineering,
purchase, construction, and installation exclusive of sunk costs.
Life Cycle Cost means the total cost of owning, operating and
maintaining a building over its useful life (including its fuel, energy,
labor, and replacement components), determined on the basis of a
systematic evaluation and comparison of alternative building systems,
except that in the case of leased buildings, the life cycle cost shall
be calculated over the effective remaining term of the lease.
Non-recurring costs means costs that are not uniformly incurred
annually over the study period.
Non-fuel operation and maintenance costs means material and labor
cost for routine upkeep, repair and operation exclusive of energy cost.
Recurring costs means future costs that are incurred uniformly and
annually over the study period.
Replacement costs means future cost to replace a building energy
system, energy conservation measure, or any component thereof.
Retrofit means installation of a building energy system alternative
in an existing Federal building.
Salvage value means the value of any building energy system removed
or replaced during the study period, or recovered through resale or
remaining at the end of the study period.
Study period means the time period covered by a life cycle cost
analysis.
Sunk costs means costs incurred prior to the time at which the life
cycle cost analysis occurs.
Time-of-day rate means the charge for service during periods of the
day based on the cost of supplying services during various times of the
day.
10 CFR 436.12 Life cycle cost methodology.
The life cycle cost methodology for this part is a systematic
analysis of relevant costs, excluding sunk costs, over a study period,
relating initial costs to future costs by the technique of discounting
future costs to present values.
10 CFR 436.13 Presuming cost-effectiveness results.
(a) If the investment and other costs for an energy conservation
measure considered for retrofit to an existing Federal building or a
building energy system considered for incorporation into a new building
design are insignificant, a Federal agency may presume that such a
system is life cycle cost-effective without further analysis.
(b) A Federal agency may presume that an investment in an energy
conservation measure retrofit to an existing Federal building is not
life cycle cost-effective if the Federal building is --
(1) Occupied under a short-term lease with a remaining term of one
year or less, and without a renewal option or with a renewal option
which is not likely to be exercised;
(2) Occupied under a lease which includes the cost of utilities in
the rent and does not provide a pass through of energy savings to the
government; or
(3) Scheduled to be demolished or retired from service within one
year or less.
10 CFR 436.14 Methodological assumptions.
(a) Each Federal Agency shall discount to present values the future
cash flows established in either current or constant dollars consistent
with the nominal or real discount rate, and related tables, published in
the annual supplement to the Life Cycle Costing Manual for the Federal
Energy Management Program (NIST 85-3273) and determined annually by DOE
as follows --
(1) The nominal discount rate shall be a 12 month average of the
composite yields of all outstanding U.S. Treasury bonds neither due nor
callable in less than ten years, as most recently reported by the
Federal Reserve Board; and
(2) Subject to a ceiling of 10 percent and a floor of three percent
the real discount rate shall be a 12 month average of the composite
yields of all outstanding U.S. Treasury bonds neither due nor callable
in less than ten years, as most recently reported by the Federal Reserve
Board, adjusted to exclude estimated increases in the general level of
prices consistent with projections of inflation in the most recent
Economic Report of the President's Council of Economic Advisors.
(b) Each Federal agency shall assume that energy prices will change
at rates projected by DOE's Energy Information Administration and
published by NIST annually no later than the beginning of the fiscal
year in the Annual Supplement to the Life Cycle Costing Manual for the
Federal Energy Management Program, in tables consistent with the
discount rate determined by DOE under paragraph (a) of this section,
except that --
(1) If the Federal agency is using component prices under 436.14(c),
that agency may use corresponding component escalation rates provided by
the energy supplier.
(2) For Federal buildings in foreign countries, the Federal agency
may use a ''reasonable'' escalation rate.
(c) Each Federal agency shall assume that the price of energy in the
base year is the actual price charged for energy delivered to the
Federal building and may use actual component prices as provided by the
energy supplier.
(d) Each Federal agency shall assume that the appropriate study
period is as follows:
(1) For evaluating and ranking alternative retrofits for an existing
Federal building, the study period is the expected life of the retrofit,
or 25 years from the beginning of beneficial use, whichever is shorter.
(2) For determining the life cycle costs or net savings of mutually
exclusive alternatives for a given building energy system (e.g.,
alternative designs for a particular system or size of a new or retrofit
building energy system), a uniform study period for all alternatives
shall be assumed which is equal to --
(i) The estimated life of the mutually exclusive alternative having
the longest life, not to exceed 25 years from the beginning of
beneficial use with appropriate replacement and salvage values for each
of the other alternatives; or
(ii) The lowest common multiple of the expected lives of the
alternative, not to exceed 25 from the beginning of beneficial use with
appropriate replacement and salvage values for each alternative.
(3) For evaluating alternative designs for a new Federal building,
the study period extends from the base year through the expected life of
the building or 25 years from the beginning of beneficial use, whichever
is shorter.
(e) Each Federal agency shall assume that the expected life of any
building energy system is the period of service without major renewal or
overhaul, as estimated by a qualified engineer or architect, as
appropriate, or any other reliable source except that the period of
service of a building energy system shall not be deemed to exceed the
expected life of the owned building, or the effective remaining term of
the leased building (taking into account renewal options likely to be
exercised).
(f) Each Federal agency may assume that investment costs are a lump
sum occurring at the beginning of the base year, or may discount future
investment costs to present value using the appropriate present worth
factors under paragraph (a) of this section.
(g) Each Federal agency may assume that energy costs and non-fuel
operation and maintenance costs begin to accrue at the beginning of the
base year or when actually projected to occur.
(h) Each Federal agency may assume that costs occur in a lump sum at
any time within the year in which they are incurred.
(i) This section shall not apply to calculations of estimated simple
payback time under 436.22 of this part.
10 CFR 436.15Formating cost data.
In establishing cost data under 436.16 and 436.17 and measuring
cost effectiveness by the modes of analysis described by 436.19 through
436.22, a format for accomplishing the analysis which includes all
required input data and assumptions shall be used. Subject to
436.18(b), Federal agencies are encouraged to use worksheets or computer
software referenced in the Life Cycle Cost Manual for the Federal Energy
Management Program.
10 CFR 436.16Establishing non-fuel cost categories.
(a) The relevant non-fuel cost categories are --
(1) Investment costs;
(2) Non-fuel operation and maintenance cost;
(3) Replacement cost; and
(4) Salvage value.
(b) The present value of recurring costs is the product of the base
year value of recurring costs as multiplied by the appropriate uniform
present worth factor under 436.14, or as calculated by computer
software indicated in 436.18(b) and used with the official discount
rate and escalation rate assumptions under 436.14. When recurring costs
begin to accrue at a later time, subtract the present value of recurring
costs over the delay, calculated using the appropriate uniform present
worth factor for the period of the delay, from the present value of
recurring costs over the study period or, if using computer software,
indicate a delayed beneficial occupancy date.
(c) The present value of non-recurring cost under 436.16(a) is the
product of the non-recurring costs as multiplied by appropriate single
present worth factors under 436.14 for the respective years in which
the costs are expected to be incurred, or as calculated by computer
software provided or approved by DOE and used with the official discount
rate and escalation rate assumptions under 436.14.
10 CFR 436.17Establishing energy cost data.
(a) Each Federal agency shall establish energy costs in the base year
by multiplying the total units of energy used in the base year by the
price per unit of energy in the base year as determined in accordance
with 436.14(c).
(b) When energy costs begin to accrue in the base year, the present
value of energy costs over the study period is the product of energy
costs in the base year as established under 436.17(a), multiplied by
the appropriate modified uniform present worth factor adjusted for
energy price escalation for the applicable region, sector, fuel type,
and study period consistent with 436.14, or as calculated by computer
software provided or approved by DOE and used with the official discount
rate and escalation rate assumptions under 436.14. When energy costs
begin to accrue at a later time, subtract the present value of energy
costs over the delay, calculated using the adjusted, modified uniform
present worth factor for the period of delay, from the present value of
energy costs over the study period or, if using computer software,
indicate a delayed beneficial occupancy date.
10 CFR 436.18Measuring cost-effectiveness.
(a) In accordance with this section, each Federal agency shall
measure cost-effectiveness by combining cost data established under
436.16 and 436.17 in the appropriate mode of analysis as described in
436.19 through 436.22.
(b) Federal agencies performing LCC analysis on computers shall use
either the Federal Buildings Life Cycle Costing (FBLCC) software
provided by DOE or software consistent with this subpart.
(c) Replacement of a building energy system with an energy
conservation measure by retrofit to an existing Federal building or by
substitution in the design for a new Federal building shall be deemed
cost-effective if --
(1) Life cycle costs, as described by 436.19, are estimated to be
lower; or
(2) Net savings, as described by 436.20, are estimated to be
positive; or
(3) The savings-to-investment ratio, as described by 436.21, is
estimated to be greater than one; or
(4) The adjusted internal rate of return, as described by 436.22, is
estimated to be greater than the discount rate as set by DOE.
(d) As a rough measure, each Federal agency may determine estimated
simple payback time under 436.23, which indicates whether a retrofit is
likely to be cost-effective under one of the four calculation methods
referenced in 436.18(c). An energy conservation measure alternative is
likely to be cost-effective if estimated payback time is significantly
less than the useful life of that system, and of the Federal building in
which it is to be installed.
(e) Mutually exclusive alternatives for a given building energy
system, considered in determining such matters as the optimal size of a
solar energy system, the optimal thickness of insulation, or the best
choice of double-glazing or triple-glazing for windows, shall be
compared and evaluated on the basis of life cycle costs or net savings
over equivalent study periods. The alternative which is estimated to
result in the lowest life cycle costs or the highest net savings shall
be deemed the most cost-effective because it tends to minimize the life
cycle cost of Federal building.
(f) When available appropriations will not permit all cost-effective
energy conservation measures to be undertaken, they shall be ranked in
descending order of their savings-to-investment ratios, or their
adjusted internal rate of return, to establish priority. If available
appropriations cannot be fully exhausted for a fiscal year by taking all
budgeted energy conservation measures according to their rank, the set
of energy conservation measures that will maximize net savings for
available appropriations should be selected.
(g) Alternative building designs for new Federal buildings shall be
evaluated on the basis of life cycle costs. The alternative design
which results in the lowest life cycle costs for a given new building
shall be deemed the most cost-effective.
10 CFR 436.19 Life cycle costs.
Life cycle costs are the sum of the present values of --
(a) Investment costs, less salvage values at the end of the study
period;
(b) Non-fuel operation and maintenance costs:
(c) Replacement costs less salvage costs of replaced building
systems; and
(d) Energy costs.
10 CFR 436.20 Net savings.
For a retrofit project, net savings may be found by subtracting life
cycle costs based on the proposed project from life cycle costs based on
not having it. For a new building design, net savings is the difference
between the life cycle costs of an alternative design and the life cycle
costs of the basic design.
10 CFR 436.21 Savings-to-investment ratio.
The savings-to-investment ratio is the ratio of the present value
savings to the present value costs of an energy conservation measure.
The numerator of the ratio is the present value of net savings in energy
and non-fuel operation and maintenance costs attributable to the
proposed energy conservation measure. The denominator of the ratio is
the present value of the net increase in investment and replacement
costs less salvage value attributable to the proposed energy
conservation measure.
10 CFR 436.22 Adjusted internal rate of return.
The adjusted internal rate of return is the overall rate of return on
an energy conservation measure. It is calculated by subtracting 1 from
the Nth root of the ratio of the terminal value of savings to the
present value of costs, where N is the number of years in the study
period. The numerator of the ratio is calculated by using the discount
rate to compound forward to the end of the study period the yearly net
savings in energy and non-fuel operation and maintenance costs
attributable to the proposed energy conservation measure. The
denominator of the ratio is the present value of the net increase in
investment and replacement costs less salvage value attributable to the
proposed energy conservation measure.
10 CFR 436.23 Estimated simple payback time.
The estimated simple payback time is the number of years required for
the cumulative value of energy cost savings less future non-fuel costs
to equal the investment costs of the building energy system, without
consideration of future price changes or discount rates.
10 CFR 436.24 Uncertainty analyses.
If particular items of cost data or timing of cash flows are
uncertain and are not fixed under 436.14, Federal agencies may examine
the impact of uncertainty on the calculation of life cycle cost
effectiveness or the assignment of rank order by conducting additional
analyses using any standard engineering economics method such as
sensitivity and probabilistic analysis. If additional analysis casts
substantial doubt on the life cycle cost analysis results, a Federal
agency should consider obtaining more reliable data or eliminating the
building energy system alternative.
10 CFR 436.24 Subparts B -- E (Reserved)
10 CFR 436.24 Subpart F -- Guidelines for General Operations Plans
Authority: Energy Policy and Conservation Act, as amended, 42 U.S.C.
6361; Executive Order 11912, as amended, 42 FR 37523 (July 20, 1977);
National Energy Conservation Policy Act, Title V, Part 3, 42 U.S.C. 8251
et seq. ; Department of Energy Organization Act, 42 U.S.C. 7254.
Source: 45 FR 44561, July 1, 1980, unless otherwise noted.
10 CFR 436.100 Purpose and scope.
(a) Purpose. The purpose of this subpart is to provide guidelines
for use by Federal agencies in their development of overall 10-year
energy management plans to establish energy conservation goals, to
reduce the rate of energy consumption, to promote the efficient use of
energy, to promote switching for petroleum-based fuels and natural gas
to coal and other energy sources, to provide a methodology for reporting
their progress in meeting the goals of those plans, and to promote
emergency energy conservation planning to assuage the impact of a sudden
disruption in the supply of oil-based fuels, natural gas or electricity.
The plan is intended to provide the cornerstone for a program to
conserve energy in the general operations of an agency.
(b) Scope. This subpart applies to all general operations of Federal
agencies and is applicable to management of all energy used by Federal
agencies that is excluded from coverage pursuant to section 543(a)(2) of
part 3 of title V of the National Energy Conservation Policy Act, as
amended (42 U.S.C. 8251-8261).
(45 FR 44561, July 1, 1980, as amended at 55 FR 48223, Nov. 20, 1990)
10 CFR 436.101 Definitions.
As used in this subpart --
''Automotive gasoline'' means all grades of gasoline for use in
internal combustion engines except aviation gasoline. Does not include
diesel fuel.
''Aviation gasoline (AVGAS)'' means all special grades of gasoline
for use in aviation reciprocating engines.
''Btu'' means British thermal unit; the quantity of heat required to
raise the temperature of one pound of water one degree Fahrenheit.
''Cogeneration'' means the utilization of surplus energy, e.g.,
steam, heat or hot water produced as a by-product of the manufacture of
some other form of energy, such as electricity. Thus, diesel generators
are converted to cogeneration sets when they are equipped with boilers
that make steam and hot water (usable as energy) from the heat of the
exhaust and the water that cools the generator.
''Diesel and petroleum distillate fuels'' means the lighter fuel oils
distilled-off during the refining process. Included are heating oils,
fuels, and fuel oil. The major uses of distillate fuel oils include
heating, fuel for on- and off-highway diesel engines, marine diesel
engines and railroad diesel fuel.
''DOE'' means the Department of Energy.
''Emergency conservation plan'' means a set of instructions designed
to specify actions to be taken in response to a serious interruption of
energy supply.
''Energy efficiency goal'' means the ratio of production achieved to
energy used.
''Energy use avoidance'' means the amount of energy resources, e.g.,
gasoline, not used because of initiatives related to conservation. It
is the difference between the baseline without a plan and actual
consumption.
''Facility'' means any structure or group of closely located
structures, comprising a manufacturing plant, laboratory, office or
service center, plus equipment.
''Federal agency'' means any Executive agency under 5 U.S.C. 105 and
the United States Postal Service, each entity specified in 5 U.S.C.
5721(1) (B) through (H) and, except that for purposes of this subpart,
the Department of Defense shall be separated into four reporting
organizations: the Departments of the Army, Navy and Air Force and the
collective DOD agencies, with each responsible for complying with the
requirements of this subpart.
''Fiscal year or FY'' means, for a given year, October 1 of the prior
year through September 30 of the given year.
''Fuel types'' means purchased electricity, fuel oil, natural gas,
liquefied petroleum gas, coal, purchased steam, automotive gasoline,
diesel and petroleum distillate fuels, aviation gasoline, jet fuel, Navy
special, and other identified fuels.
''General operations'' means world-wide Federal agency operations,
other than building operations, and includes services; production and
industrial activities; operation of aircraft, ships, and land vehicles;
and operation of Government-owned, contractor-operated plants.
''General transportation'' means the use of vehicles for
over-the-road driving as opposed to vehicles designed for off-road
conditions, and the use of aircraft and vessels. This category does not
include special purpose vehicles such as combat aircraft, construction
equipment or mail delivery vehicles.
''Goal'' means a specific statement of an intended energy
conservation result which will occur within a prescribed time period.
The intended result must be time-phased and must reflect expected energy
use assuming planned conservation programs are implemented.
''Guidelines'' means a set of instructions designed to prescribe,
direct and regulate a course of action.
''Industrial or production'' means the operation of facilities
including buildings and plants which normally use large amounts of
capital equipment, e.g., GOCO plants, to produce goods (hardware).
''Jet fuel'' means fuels for use, generally in aircraft turbine
engines.
''Life cycle cost'' means the total cost of acquiring, operating and
maintaining equipment over its economic life, including its fuel costs,
determined on the basis of a systematic evaluation and comparison of
alternative investments in programs, as defined in Subpart A of this
part.
''Liquefied petroleum gas'' means propane, propylene-butanes,
butylene, propane-butane mixtures, and isobutane that are produced at a
refinery, a natural gas processing plant, or a field facility.
''Maintenance'' means activities undertaken to assure that equipment
and energy-using systems operate effectively and efficiently.
''Measures'' means actions, procedures, devices or other means for
effecting energy efficient changes in general operations which can be
applied by Federal agencies.
''Measure of performance'' means a scale against which the
fulfillment of a requirement can be measured.
''Navy special'' means a heavy fuel oil that is similar to ASTM grade
No. 6 oil or Bunker C oil. It is used to power U.S. Navy ships.
''Non-renewable energy source'' means fuel oil, natural gas,
liquefied petroleum gas, synthetic fuels, and purchased steam or
electricity, or other such energy sources.
''Operational training and readiness'' means those activities which
are necessary to establish or maintain an agency's capability to perform
its primary mission. Included are major activities to provide essential
personnel strengths, skills, equipment/supply inventory and equipment
condition. General administrative and housekeeping activities are not
included.
''Overall plan'' means the comprehensive agency plan for conserving
fuel and energy in all operations, to include both the Buildings Plan
developed pursuant to Subpart C of this part and the General Operations
Plan.
''Plan'' means those actions which an agency envisions it must
undertake to assure attainment of energy consumption and efficiency
goals without an unacceptably adverse impact on primary missions.
''Program'' means the organized set of activities and allocation of
resources directed toward a common purpose, objective, or goal
undertaken or proposed by an agency in order to carry out the
responsibilities assigned to it.
''Renewable energy sources'' means sunlight, wind, geothermal,
biomass, solid wastes, or other such sources of energy.
''Secretary'' means the Secretary of the Department of Energy.
''Services'' means the provision of administrative assistance or
something of benefit to the public.
''Specific Functional Category'' means those Federal agency
activities which consume energy, or which are directly linked to energy
consuming activities and which fall into one of the following groups:
Services, General Transportation, Industrial or Production, Operational
Training and Readiness, and Others.
''Standard'' means an energy conservation measure determined by DOE
to be applicable to a particular agency or agencies. Once established
as a standard, any variance or decision not to adopt the measure
requires a waiver.
''Under Secretary'' means the Under Secretary of the Department of
Energy.
''Variance'' means the difference between actual consumption and
goal.
''656 Committee'' means the Interagency Federal Energy Policy
Committee, the group designated in Section 656 of the DOE Organization
Act to provide general oversight for interdepartmental FEMP matters. It
is chaired by the Under Secretary of DOE and includes the designated
Assistant Secretaries or Assistant Administrator of the Department of
Defense, Commerce, Housing and Urban Development, Transportation,
Agriculture, Interior and the U.S. Postal Service and General Services
Administration, along with similar level representatives of the National
Aeronautics and Space Administration and the Veterans Administration.
10 CFR 436.102General operations plan format and content.
(a) Each Federal agency shall prepare and submit to the Under
Secretary, DOE, within six months from the effective date of these
guidelines, a general operations 10-year plan which shall consist of two
parts, an executive summary and a text. Subsequent agency revisions to
plans shall be included in each agency's annual report on progress which
shall be forwarded to DOE by July 1 annually.
(b) The following information shall be included in each Federal
agency general operations 10-year plan for the period of fiscal years
1980-1990:
(1) An Executive Summary which includes --
(i) A brief description of agency missions, and applicable functional
categories pursuant to 436.106(a)(2);
(ii) A Goals and Objectives Section which summarizes what energy
savings or avoidance will be achieved during the plan period, and what
actions will be taken to achieve those savings, and the costs and
benefits of measures planned for reducing energy consumption, increasing
energy efficiencies, and shifting to a more favorable fuel mix.
Assumptions of environmental, safety and health effects of the goals
should be included;
(iii) A chart depicting the agency organizational structure for
energy management, showing energy management program organization for
headquarters and for major subordinate elements of the agency;
(iv) A schedule for completion of requirements directed in this
subpart, including phase-out of any procedures made obsolete by these
guidelines; and
(v) Identification of any significant problem which may impede the
agency from meeting its energy management goals.
(2) A Text which includes --
(i) A Goals and Objectives Section developed pursuant to 436.103
describing agency conservation goals; these goals will be related to
primary mission goals;
(ii) An Investment Section describing the agency planned investment
program by fiscal year, pursuant to Appendix B of this subpart, all
measures selected pursuant to 436.104, and the estimated costs and
benefits of the measures planned for reducing energy consumption and
increasing energy efficiencies;
(iii) An Organization Section which includes: (A) Designation of the
principal energy conservation officer, such as an Assistant Secretary or
Assistant Administrator, who is responsible for supervising the
preparation, updating and execution of the Plan, for planning and
implementation of agency energy conservation programs, and for
coordination with DOE with respect to energy matters; (B) designation
of a middle-level staff member as a point of contact to interface with
the DOE Federal Programs Office at the staff level; and (C) designation
of key staff members within the agency who are responsible for technical
inputs to the plan or monitoring progress toward meeting the goals of
the plan;
(iv) An Issues Section addressing problems, alternative courses of
action for resolution, and agency recommendations that justify any
decisions not to plan for or implement measures contained in Appendix C
of this subpart, and identifying any special projects, programs, or
administrative procedures which may be beneficial to other Federal
agency energy management programs:
(v) An implementing Instructions Section which includes a summary of
implementing instructions issued by agency headquarters, and attachments
of appropriate documents such as:
(A) Specific tasking resulting from development of the Plan;
(B) Guidance for the development of emergency conservation plans;
(C) Task milestones;
(D) Listing of responsible sub-agencies and individuals at both
agency headquarters and subordinate units;
(E) Reporting and administrative procedures for headquarters and
subordinate organizations;
(F) Report schedules pursuant to 436.106(c);
(G) Schedules for feedback in order to facilitate plan updating, to
include reviews of emergency conservation plans developed pursuant to
436.105;
(H) Schedules for preparing and submitting the annual report on
energy management pursuant to 436.106(a);
(I) Schedules of plan preparation and publication;
(J) Communication, implementation, and control measures such as
inspections, audits, and others; and
(vi) An Emergency Conservation Plan Summary Section pursuant to the
requirements of 436.105(d).
(3) Appendices which are needed to discuss and evaluate any
innovative energy conserving technologies or methods, not included in
this Part, which the agency has identified for inclusion in its plan.
(c) Each plan must be approved and signed by the principal energy
conservation officer designated pursuant to paragraph (b)(2) of this
section.
10 CFR 436.103Program goal setting.
(a) In developing and revising plans for a projected 10-year plan
each agency shall establish and maintain energy conservation goals in
accordance with the requirements of this section.
(b) Agencies shall establish three types of conservation goals:
(1) Energy consumption goals, by fuel type by functional category
(see Appendix B).
(2) Energy efficiency goals by fuel type by functional category (see
Appendix B).
(3) Fuel switching goals for shifting energy use from oil and natural
gas to other fuels in more plentiful supply from domestic sources (see
Appendix B).
(c) General operations energy conservation goals shall be established
by each Federal agency with the broad purpose of achieving reductions in
total energy consumption and increased efficiency without serious
mission degradation or unmitigated negative environmental impacts.
Within the broad framework, each agency should seek first to reduce
energy consumption per unit of output in each applicable functional
category. In evaluating energy efficiency, each agency should select
and use standards of measurement which are consistent throughout the
planning period. Particular attention should be given to increased
energy use efficiency in nonrenewable fuel consumption. The second
focus of attention should be on initiatives which shift energy use from
oil and natural gas to other fuels in more plentiful supply from
domestic sources.
10 CFR 436.104Energy conservation measures and standards.
(a) Each agency shall consider for inclusion in its plan the measures
identified in Appendix C of this subpart.
(b) The following questions should be considered in the evaluation of
each measure:
(1) Does this measure provide an incentive or disincentive?
(2) What is the estimate of savings by fuel type?
(3) What are the direct and indirect impacts of this measure?
(4) Is this measure to be mandatory throughout the agency?
(5) If not mandatory, under what circumstances will it be
implemented, and who will be responsible for determining specific
applicability?
(6) Who will be the direct participants in the implementation of this
measure?
(7) What incentives (if any) are to be provided for the participants?
(8) When will this measure be implemented?
(9) Will this measure be implemented in a single step or will it be
phased in? If it will be phased in, over what period of time?
(10) Will performance of the measure be evaluated and reported?
(11) By what criterion will performance be determined?
(12) Who will prepare performance reports?
(13) What is the reporting chain?
(14) What is the reporting period?
(c) Each agency will take all necessary steps to implement the energy
conservation standards for general operations listed in Appendix A
(reserved).
10 CFR 436.105Emergency conservation plan.
(a) Each agency shall establish an emergency conservation plan, a
summary of which shall be included in the general operations plan, for
assuaging the impact of a sudden disruption in the supply of oil-based
fuels, natural gas or electricity. Priorities for temporarily reducing
missions, production, services, and other programmatic or functional
activities shall be developed in accordance with paragraph (b) of this
section. Planning for emergencies is to address both buildings and
general operations. Provisions shall be made for testing emergency
actions to ascertain that they are effective.
(b) Federal agencies shall prepare emergency conservation plans for
10 percent, fifteen percent, and 20 percent reduction compared to the
previous fiscal year in gasoline, other oil-based fuels, natural gas, or
electricity for periods of up to 12 months. In developing these plans,
agencies shall consider the potential for emergency reductions in energy
use in buildings and facilities which the agency owns, leases, or has
under contract and by employees through increased use of car and van
pooling, preferential parking for multipassenger vehicles, and greater
use of mass transit. Agencies may formulate whatever additional
scenarios they consider necessary to plan for various energy
emergencies.
(c) In general, Federal agencies' priorities shall go to those
activities which directly support the agencies' primary missions.
Secondary mission activities which must be curtailed or deferred will be
reported to DOE as mission impacts. The description of mission impacts
shall include estimates of the associated resources and time required to
mitigate the effects of the reduction in energy. Other factors or
assumptions to be used in energy conservation emergency planning are as
follows:
(1) Agencies will be given 15-30 days notice to implement any given
plan.
(2) Substitution of fuels in plentiful supply for fuels in short
supply is authorized, if the substitution can be completed within a
3-month period and the cost is within the approval authority of the
executive branch.
(3) All costs and increases in manpower or other resources associated
with activities or projects to assuage mission impacts will be clearly
defined in respective agency plans. One-time costs will be identified
separately.
(4) Confronting the emergency situation will be considered a priority
effort and all projects and increases in operating budgets within the
approval authority of the executive branch will be expeditiously
considered and approved if justified.
(d) Summary plans for agency-wide emergency conservation management
shall be provided to DOE pursuant to 436.102(b)(2)(vi). Such summaries
shall include:
(1) Agency-wide impacts of energy reductions as determined in
accordance with paragraph (b) of this section.
(2) Actions to be taken agency-wide to alleviate the energy
shortfalls as they occur.
(3) An assessment of agency services or production that may need to
be curtailed or limited after corrective actions have been taken.
(4) A summation of control and feedback mechanisms for managing an
energy emergency situation.
10 CFR 436.106Reporting requirements.
(a) By July 1 of each year each Federal agency shall submit an
''Annual Report on Energy Management'' based on fiscal year data to the
Secretary of DOE. The general operations portion of this report will
encompass all agency energy use not reported in the buildings portion
and shall include:
(1) A summary evaluation of progress toward the achievement of energy
consumption, energy efficiency, and fuel switching goals established by
the agency in its plans;
(2) Energy consumption reported by functional categories. Reports
must include General Transportation and one or more of the following
functional categories: industrial or production, services, operational
training and readiness, and other. Agencies may report in subcategories
of their own choosing. The following information is to be reported for
the usage of each fuel type in physical units for each selected
functional category:
(i) Total energy consumption goal;
(ii) Total energy consumed;
(iii) Total energy use avoidance;
(iv) Variance between actual consumption and consumption goal;
(v) Cost saved;
(vi) Status of planned investments, and if different from the
investment program upon which existing goals are based, the expected
impact on meeting goals; and
(vii) Summary of any other benefits realized.
(3) The energy efficiencies as calculated in accordance with appendix
B of this subpart, or by an equivalent method, for the appropriate
functional categories identified in paragraph (a)(2) of this section.
The following information is to be reported for the energy efficiency
for each fuel type by functional category:
(i) Energy efficiency goal;
(ii) Efficiency for the reporting period;
(iii) Summary of any other benefits realized.
(4) A summary of fuel switching progress including:
(i) Description and cost of investments in fuel switching;
(ii) Avoidance in use of oil-based fuels and natural gas;
(iii) Increased use of solar, wood, gasohol and other renewable
energy sources;
(iv) Increased use of coal and coal derivatives, and
(v) Use of all other alternative fuels.
(b) Each agency's annual report shall be developed in accordance with
a format to be provided by DOE and will include agency revisions to
10-year plans.
(c) Agencies whose annual total energy consumption exceeds one
hundred billion Btu's, shall, in addition to the annual report required
under paragraph (a) of this section, submit quarterly reports of the
energy usage information specified in paragraph (a)(2) of this section.
(d) Agencies who consume energy in operations in foreign countries
will include data on foreign operations if foreign consumption is
greater than 10% of that consumed by the agency in the United States,
its territories and possessions. If an agency's estimated foreign
consumption is less than 10% of its total domestic energy use, reporting
of foreign consumption is optional. Reports should be annotated if
foreign consumption is not included.
(45 FR 44561, July 1, 1980, as amended at 51 FR 4586, Feb. 6, 1986)
10 CFR 436.107Review of plan.
(a) Each plan or revision of a plan shall be submitted to DOE and DOE
will evaluate the sufficiency of the plan in accordance with the
requirements of this subpart. Written notification of the adequacy of
the plan including a critique, will be made by DOE and sent to the
agency submitting the plan or revision within 60 days of submission.
Agencies shall be afforded an opportunity to modify and return the plan
within an appropriate period of time for review by DOE.
(b) A general operations plan under the guidelines will be evaluated
with respect to:
(1) Adequacy of information or plan content required to be included
by 436.102;
(2) Adequacy of goal setting methodology or baseline justification as
stated in 436.103;
(3) Adequacy of a well-justified investment program which considers
all measures included in Appendix C of this subpart; and
(4) Other factors as appropriate.
(c) After reviewing agency plans or revisions of plans, the Under
Secretary of DOE, may submit to the ''656'' Committee for its
recommendation, major problem areas or common deficiencies.
(d) Status of the plan review, the Under Secretary's decisions, and
''656'' Committee recommendations, will be published as appropriate in
the DOE annual report to the President, titled ''Energy Management in
the Federal Government.''
10 CFR 436.108Waivers.
(a) Any Federal agency may submit a written request to the Under
Secretary for a waiver from the procedures and requirements of this
subpart. The request for a waiver must identify the specific
requirements and procedures of this subpart from which a waiver is
sought and provide a detailed explanation, including appropriate
information or documentation, as to why a waiver should be granted.
(b) A request for a waiver under this section must be submitted at
least 60 days prior to the due date for the required submission.
(c) A written response to a request for a waiver will be issued by
the Under Secretary no later than 30 days from receipt of the request.
Such a response will either (1) grant the request with any conditions
determined to be necessary to further the purposes of this subpart, (2)
deny the request based on a determination that the reasons given in the
request for a waiver do not establish a need that takes precedence over
the futherance of the purposes of this subpart, or (3) deny the request
based on the failure to submit adequate information upon which to grant
a waiver.
(d) A requested waiver may be submitted by the Under Secretary to the
''656'' Committee for its review and recommendation. The agency
official that submitted the request may attend any scheduled meeting of
the ''656'' Committee at which the request is planned to be discussed.
The determination to approve or disapprove a request for a waiver shall
be made by the Under Secretary.
(e) Status of the requests for a waiver, the Under Secretary's
decisions, and ''656'' Committee recommendations, will be published, as
appropriate, in the DOE annual report to the President, entitled
''Energy Management in the Federal Government.''
10 CFR 436.108 Appendix A to Part 436 -- Energy Conservation Standards for General Operations (Reserved)
10 CFR 436.108 Pt. 436, App. B
10 CFR 436.108 Appendix B to Part 436 -- Goal Setting Methodology
In establishing and updating agency goals for energy conservation,
the following methodology or an equivalent method should be utilized:
(a) For overall energy consumption --
(1) An analysis shall be made to determine what factors have the most
significant impact upon the amount of each fuel type used by the agency
in performing functions in support of its overall mission.
Consideration is to be given, but not limited to, the following factors:
Number of people using energy; number of vehicles using gasoline;
amounts of other equipment using energy; tempo of operations (one, two,
or three shifts); the type of operations (degree of equipment or labor
intensity); equipment fuel limitations; environmental conditions
(tropical versus arctic, etc.); budget levels for fuel, operations,
maintenance, and equipment acquisition; and phase-out schedule (of
older equipment or plants which may be inefficient). After identifying
these factors, a further analysis shall be made to identify any
projected workload changes in the quality or quantity of these factors
on a yearly basis up to 1990.
(2) Based upon the analysis in (a)(1) and an evaluation of available
information on past energy usage, a baseline of energy use by fuel type
by functional category shall be established beginning with FY 1975. In
addition to ''General Transportation,'' other functional categories
should be selected to enhance energy management. Total fuel use for a
particular activity may be allocated to the functional category for
which the preponderance of fuel is used. Figure B-1 is an example of
one such baseline.
Insert illustration 01347
This example shows an increase in energy use, for a specific fuel
type, during the period 1975-1981, with a further increase from 1981 to
1984 and a leveling off and no growth from 1984-1990. A justification,
based on factors as discussed above, shall accompany each baseline.
(3) Thereafter, analyses should be made of the measures available for
reducing the energy consumption profiles without adverse impact on
mission accomplishment. Finding viable opportunities for reducing
energy use, increasing energy efficiency and switching energy sources,
will require consultation with specialists in the fields of operations,
maintenance, engineering, design, and economics, and consideration of
the measures identified in Appendix C. The DOE Federal Energy
Management Programs Office can, upon request, provide information on
where such resources can be located. Once these measures are
identified, they are to be incorporated into a time-phased investment
program, (using where appropriate, the life cycle costing factors and
methodology in subpart A of this part). If investment and other costs
for implementing a measure are insignificant, a Federal agency may
presume that a measure is cost-effective without further analysis. An
estimate must then be made as to the lead time required to implement the
program and realize energy reductions.
Figure B-2 shows a summarized investment program, which should be
accompanied by a detailed description of the measures, projects, and
programs making up the total planned investments for each year. This
summary need not be by function or fuel type.
Insert illustration 01349
These analyses should enable the agency to project an energy
consumption goal, with the assumption that funds for executing the
planned projects will be approved. Figure B-3 shows a new energy use
profile, with planned initiatives and related investments taken into
consideration, and the resulting goal entitled ''Energy Use With A
Plan'' superimposed on Figure B-1. Included are the anticipated effects
on consumption cause by improvements in energy efficiency and fuel
switching.
Insert illustrations 01351
A comparison of these projections will show the energy use avoidance
resulting from the investment program as depicted in Figure B-2. Using
the prices of fuel contained in Appendix C to Subpart A, the dollars
saved can be projected against the dollars invested. Life cycle costing
methodology pursuant to subpart A, will be used to determine priorities
for submitting individual initiatives into the appropriate budget year.
(b) For energy efficiencies -- Energy efficiency baselines and goals
for each fuel type shall be calculated using the same consumption
factors and similar methodology to that outlined in paragraph (a).
Energy consumption by fuel type shall be linked to mission through the
functional categories listed in 436.106(a)(2). This will identify a
rate which will indicate energy efficiency trends. This linkage may be
accomplished through the following algorithm:
Step 1: Determine functional categories from section 436.106(a)(2)
which best describe the Agency overall mission.
Step 2: Determine types of fuels used to support the functions
selected in Step 1.
Step 3: Determine quantities of fuel consumed or planned for
consumption over a specific period of time.
Step 4: Determine quantity of output of function for same period of
time used in Step 3. Quantify output in a standard measure which best
describes functional category.
Step 5: Determine the energy efficiency ratio by dividing quantity
from Step 4 by quantity from Step 3.
This ratio of fuel consumed to a unit measure of output will be used
to develop a projection of a baseline and goals through 1990, and used
in reporting variance. Examples of ratios that should be considered
are:
Production or industrial process type operations
Ton of product
Cu. ft. of natural gas
Services, such as postal delivery
Customers served or
pounds delivered
Gallons of automotive
gasoline
General transportation
Passenger miles
Gallons of automotive gasoline
Training
Persons trained
or in training
Gallons of navy special
Agencies shall select one or more of these ratios, which shall be
used throughout the planning period, or use more appropriate energy
efficiency ratios, to describe their overall functions. Figure B-4
illustrates the planning baseline and goal resulting from this type of
analysis.
Insert illustrations 01354
(c) For fuel switching -- Fuel switching goals for gasoline other
oil-based fuel and natural gas may be calculated as follows:
Step 1: For each fiscal year, identify investments, where
appropriate, in fuel switching from gasoline, other oil-based fuel and
natural gas to alternate renewable or nonrenewable fuel sources.
Step 2: Project for each fiscal year, the avoidance in the use of
gasoline, other oil-based fuel and natural gas resulting from previous
fuel switching investments.
Completion of these steps will permit the formulation of charts such
as that shown in Figure B-5.
Insert illustrations 01356
10 CFR 436.108 Pt. 436, App. C
10 CFR 436.108 Appendix C to Part 436 -- General Operations Energy
Conservation Measures
(a) The following individual measures or set of measures must be
considered for inclusion in each agency 10-year energy management plan:
(1) Federal Employee Ridesharing Programs -- Includes the use of
vanpooling and carpooling and complies with existing orders and
regulations governing parking for vanpools and carpools.
(2) Fleet Profile Change -- Includes energy considerations in
equipment selection and assignment.
(3) Fleet Mileage Efficiency -- Includes agency plans to implement
existing orders, goals, and laws related to vehicle fuel economy.
(4) Driver Training -- Includes development of appropriate programs
for training operators of U.S. Government vehicles in energy
conservation.
(5) Maintenance Procedures Improvement -- Includes activities to
insure proper vehicle maintenance to optimize energy conservation.
(6) Operating Procedures Improvement -- Includes use of cooperative
passenger shuttle and courier services on an interagency or other basis
within each metropolitan area.
(7) Mass Transit -- Includes employee use of existing services for
business-related activities and commuting.
(8) Public Education to Promote Vanpooling and Carpooling -- Includes
activities to support the EPCA requirement to establish ''responsible
public education programs to promote vanpooling and carpooling
arrangements'' through their employee awareness programs.
(9) Elimination of Free or Subsidized Employee Parking -- Includes
elimination of free or subsidized employee parking on Federal
installations in accordance with OMB Cir. A-118, August 13, 1979.
(10) Two-Wheeled Vehicle Programs -- Includes activities to encourage
the substitution of bicycles, mopeds, etc. for automobiles for
commuting and operational purposes. These may include the establishment
of weather-protected secure storage facilities, shower and locker
facilities, and restricted routes for these vehicles on Federal
property. Cooperative programs with local civil authorities may also be
included.
(11) Consolidation of Facilities and Process Activities -- Includes
such measures as physical consolidation of operations to minimize
intra-operational travel and may include facility closure or conversion.
Alternative work patterns, availability of transportation, energy
source availability, and technical and financial feasibility are among
the considerations that should be evaluated.
(12) Agency Procurement Programs -- Includes activities to ensure
that energy conservation opportunities are fully exploited with respect
to the agency's procurement programs including procurements relating to
operations and maintenance activities; e.g., (a) giving preference to
fuel-efficient products whenever practicable, and (b) ensuring that
agency's contractors having a preponderance of cost-type contracts
pursue a comprehensive energy conservation program.
(13) Energy Conservation Awareness Programs -- Includes programs
aimed toward gaining and perpetuating employee awareness and
participation in energy conservation measures on the job and in their
personal activities.
(14) Communication -- Includes substitution of communications for
physical travel.
(15) Dress Code -- Includes measures to allow employees greater
freedom in their choice of wearing apparel to promote greater
participation in conservation.
(16) Land Use -- Includes energy considerations to be employed in new
site selection, such as colocation.
(17) Automatic Data Processing (ADP) -- Includes all energy aspects
of ADP operation and equipment selection.
(18) Aircraft Operations -- Includes energy-conserving measures
developed for both military and Federal administrative and research and
development aircraft operations.
(19) GOCO Facilities and Industrial Plants Operated by Federal
Employees -- Includes development of energy conservation plans at these
facilities and plants which contain measures such as energy efficient
periodic maintenance.
(20) Energy Conserving Capital Plant and Equipment Modification --
Includes development of energy conservation and life cycle cost
parameter measures for replacement of capital plant and equipment.
(21) Process Improvements -- Includes measures to improve energy
conservation in industrial process operations. These may include
consideration of equipment replacement or modification, as well as
scheduling and other operational changes.
(22) Improved Steam Maintenance and Management -- Includes measures
to improve energy efficiency of steam systems. These may include
improved maintenance, installation of energy-conserving devices, and the
operational use of substitutes for live steam where feasible.
(23) Improvements in Waste Heat Recovery -- Includes measures
utilizing waste heat for other purposes.
(24) Improvement in Boiler Operations -- Includes energy-conserving
retrofit measures for boiler operations.
(25) Improved Insulation -- Includes measures addressing the addition
or replacement of insulation on pipes, storage tanks, and in other
appropriate areas.
(26) Scheduling by Major Electric Power Users -- Includes measures to
shift major electrical power demands to non-peak hours, to the maximum
extent possible.
(27) Alternative Fuels -- Includes measures to alter equipment such
as generators to use lower quality fuels and to fill new requirements
with those that use alternative fuels. The use of gasohol in stationary
gasoline-powered equipment should be considered, in particular.
(28) Cogeneration -- Includes measures to make full use of
cogeneration in preference to single-power generation.
(29) Mobility Training and Operational Readiness -- Includes measures
which can reduce energy demands through the use of simulators,
communications, computers for planning, etc.
(30) Energy Conservation Inspection or Instruction Teams -- Includes
measures which formulate and perpetuate the review of energy
conservation through inspections to determine where specific
improvements can be made and then followed by an instruction and
training program.
(31) Intra-agency and Interagency Information Exchange Program --
Includes measures providing a free exchange of energy conservation ideas
and experiences between elements of an agency and between other agencies
in the same geographic area.
(32) Recycled Waste -- Includes measures to recycle waste materials
such as paper products, glass, aluminum, concrete and brick, garbage,
asphalt road materials or any material which requires a petroleum base.
(33) Fuel Conversion -- Includes measures to accomplish conversion
from petroleum based fuels and natural gas to coal and other alternative
fuels for appropriate equipment.
(34) Operational Lighting -- Includes measures to reduce energy
consumption for lighting in operational areas and GOCO plants by:
switching off by means of automatic controls; maximizing the use of
daylight by floor planning; keeping window and light fixtures clean and
replacing fixtures when they begin to deteriorate, rather than when they
fail altogether; providing automatic dimmer controls to reduce lighting
when daylight increases; and cleaning the work area during daylight, if
possible, rather than at night.
(35) Lighting Fixtures -- Includes measures to increase energy
efficiency of lighting. The following reveals the relative efficiencies
of common lamp types.
(36) Industrial Buildings Heating -- Includes measures to improve the
energy conservation of industrial buildings such as: fixing holes in
roofs, walls and windows; fitting flexible doors, fitting controls to
heating systems; use of ''economizer units'' which circulate hot air
back down from roof level to ground level; use of controlled
ventilation; insulation of walls and roof; use of ''optimisers'' or
optimum start controls in heating systems, so that the heating switch-on
is dictated by actual temperature conditions rather than simply by time.
(37) Hull Cleaning and Antifouling Coating -- Includes measures to
reduce energy consumption through periodic cleaning of hulls and
propellers or through the use of antifouling coatings.
(38) (Reserved)
(39) Building Temperature Restrictions on Thermostat Setting for
Heating, Cooling and Hot Water -- Includes enforcement of suggested
restriction levels: 65 degrees for heating, 78 degrees for cooling, and
105 degrees or ban for hot water.
(40) Such other measures as DOE may from time-to-time add to this
appendix, or as the Federal agency concerned may find to be
energy-saving or efficient.
10 CFR 436.108 Pt. 436, App. D
10 CFR 436.108 Appendix D to Part 436 -- Energy Program Conservation
Elements
(a) In all successful energy conservation programs, certain key
elements need to be present. The elements listed below must be
incorporated into each agency conservation program and must be reflected
in the 10-year plan prescribed in 436.102. Those organizations that
have already developed programs should review them to determine whether
the present management systems incorporate these elements.
(1) Top Management Control. Top management must have a personal and
sustained commitment to the program, provide active direction and
motivation, and require regular review of overall energy usage at senior
staff meetings.
(2) Line Management Accountability. Line managers must be
accountable for the energy conservation performance of their
organizations and should participate in establishing realistic goals and
developing strategies and budgets to meet these goals.
(3) Formal Planning. An overall 10-year plan for the period
1980-1990 must be developed and formalized which sets forth
performance-oriented conservation goals, including the categorized
reduction in rates of energy consumption that the program is expected to
realize. The plan will be supplemented by guidelines enumerating
specific conservation procedures that will be followed. These
procedures and initiatives must be life cycle cost-effective as well as
energy efficient.
(4) Goals. Goals must be established in a measurable manner to
answer questions of ''Where are we?'' ''Where do we want to go?'' ''Are
we getting there?'' and ''Are our initiatives for getting there life
cycle cost-effective?''
(5) Monitoring. Progress must be reviewed periodically both at the
agency headquarters and at local facility levels to identify program
weakness or additional areas for conservation actions. Progress toward
achievement of goals should be assessed, and explanations should be
required for non-achievement or unusual variations in energy use.
Monitoring should include personal inspections and staff visits,
management information reporting and audits.
(6) Using Technical Expertise. Personnel with adequate technical
background and knowledge of programmatic objectives should be used to
help management set technical goals and parameters for efficient
planning and implementation of energy conservation programs. These
technicians should work in conjunction with the line managers who are
accountable for both mission accomplishment and energy conservation.
(7) Employee Awareness. Employees must gain an awareness of energy
conservation through formal training and employee information programs.
They should be invited to participate in the process of developing an
energy conservation program, and to submit definitive suggestions for
conservation of energy.
(8) Energy Emergency Planning. Every energy management plan must
provide for programs to respond to contingencies that may occur at the
local, state or National level. Programs must be developed for
potential energy emergency situations calling for reductions of 10
percent, 15 percent and 20 percent for up to 12 months. Emergency plans
must be tested to ascertain their effectiveness.
(9) Budgetary and Fiscal Support. Resources necessary for the energy
conservation program must be planned and provided for, and the fiscal
systems adjusted to support energy management investments and
information reporting.
(10) Environmental Considerations. Each agency shall fulfill its
obligations under the National Environmental Policy Act in developing
its plan.
10 CFR 436.108 PART 440 -- WEATHERIZATION ASSISTANCE FOR LOW-INCOME
PERSONS
Sec.
440.1 Purpose and scope.
440.2 Administration of grants.
440.3 Definitions.
440.10 Allocation of funds.
440.11 Native Americans.
440.12 State application.
440.13 Local application.
440.14 State plans.
440.15 Subgrantees.
440.16 Minimum program requirements.
440.17 Policy Advisory Council.
440.18 Allowable expenditures.
440.19 Labor.
440.20 Low-cost/no-cost weatherization activities.
440.21 Standards and techniques for weatherization.
440.22 Eligible dwelling units.
440.23 Oversight, training, and technical assistance.
440.24 Recordkeeping.
440.25 Reports.
440.26 Establishment of the Performance Fund.
440.27 Evaluating State Performance.
440.28 Awarding the Performance Fund.
440.29 Appeals.
440.30 Administrative review.
Appendix A -- Standards for Weatherization Materials
Authority: Title IV, Energy Conservation and Production Act, Pub.
L. 94-385, 90 Stat. 1150 (42 U.S.C. 6851 et seq.), as amended;
Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42
U.S.C. 7101 et seq.).
Source: 49 FR 3629, Jan. 27, 1984, unless otherwise noted.
10 CFR 440.1Purpose and scope.
This part contains the regulation adopted by the Department of Energy
to carry out a program of weatherization assistance for low-income
persons established by Part A of the Energy Conservation in Existing
Buildings Act of 1976, 42 U.S.C. 6861 et seq., enacted as Title IV of
the Energy Conservation and Production Act, Pub. L. 94-385, 90 Stat.
1150 et seq., and amended by Title II, Part 2 of the National Energy
Conservation Policy Act, Pub. L. 95-619, 92 Stat. 3206 et seq., and by
the Energy Security Act, Pub. L. 96-294, 94 Stat. 611 et seq.
10 CFR 440.2Administration of grants.
Grant awards under this part shall comply with applicable law
including, without limitation, the requirements of:
(a) Executive Order 12372 entitled ''Intergovernmental Review of
Federal Programs'', 48 FR 3130, and the DOE Regulation implementing this
Executive Order entitled ''Intergovernmental Review of Department of
Energy Programs and Activities'' (10 CFR Part 1005);
(b) Office of Management and Budget Circular A-97, entitled ''Rules
and Regulations Permitting Federal Agencies to Provide Specialized or
Technical Services to State and Local Units of Government under Title
III of the Inter-Governmental Coordination Act of 1968;''
(c) Unless in conflict with provisions of this part, the DOE
Financial Assistance Rule (10 CFR Part 600); and
(d) Such other procedures applicable to this part as DOE may from
time to time prescribe for the administration of financial assistance.
10 CFR 440.3Definitions.
As used in this part:
Act means the Energy Conservation in Existing Buildings Act of 1976,
as amended, 42 U.S.C. 6851 et seq.
Assistant Secretary means the Assistant Secretary for Conservation
and Renewable Energy or official to whom the Assistant Secretary's
functions may be redelegated by the Secretary.
CAA means a Community Action Agency.
Community Action Agency means a private corporation or public agency
established pursuant to the Economic Opportunity Act of 1964, Pub. L.
88-452, which is authorized to administer funds received from Federal,
State, local, or private funding entities to assess, design, operate,
finance, and oversee antipoverty programs.
Cooling Degree Days means a population-weighted annual average of the
climatological cooling degree days for each weather station within a
State, as determined by DOE.
Deputy Assistant Secretary means the Deputy Assistant Secretary for
Technical and Financial Assistance or any official to whom the Deputy
Assistant Secretary's functions may be redelegated by the Assistant
Secretary.
DOE means the Department of Energy.
Dwelling Unit means a house, including a stationary mobile home, an
apartment, a group of rooms, or a single room occupied as separate
living quarters.
Elderly Person means a person who is 60 years of age or older.
Family Unit means all persons living together in a dwelling unit.
Governor means the chief executive officer of a State, including the
Mayor of the District of Columbia.
Grantee means the State or other entity named in the Notification of
Grant Award as the recipient.
Handicapped Person means any individual (1) who is a handicapped
individual as defined in Section 7(6) of the Rehabilitation Act of 1973,
(2) who is under a disability as defined in Section 1614(a)(3)(A) or
223(d)(1) of the Social Security Act or in Section 102(7) of the
Developmental Disabilities Services and Facilities Construction Act, or
(3) who is receiving benefits under Chapter 11 or 15 of Title 38, U.S.C.
Heating Degree Days means a population-weighted seasonal average of
the climatological heating degree days for each weather station within a
State, as determined by DOE.
Incidental Repairs means those repairs necessary for the effective
performance or preservation of weatherization materials. Such repairs
include, but are not limited to, framing or repairing windows and doors
which could not otherwise be caulked or weather-stripped and providing
protective materials, such as paint, used to seal materials installed
under this program.
Indian Tribe means any tribe, band, nation, or other organized group
or community of Native Americans, including any Alaskan native village,
or regional or village corporation as defined in or established pursuant
to the Alaska Native Claims Settlement Act, Pub. L. 92-203, 85 Stat.
688, which (1) is recognized as eligible for the special programs and
services provided by the United States to Native Americans because of
their status as Native Americans, or (2) is located on, or in proximity
to, a Federal or State reservation or rancheria.
JTPA means the Job Training Partnership Act, 29 U.S.C. 1501 et seq.
Local Applicant means a CAA or other public or non profit entity unit
of general purpose local government.
Low Income means that income in relation to family size which:
(1) Is at or below 125 percent of the poverty level determined in
accordance with criteria established by the Director of the Office of
Management and Budget, except that the Secretary may establish a higher
level if the Secretary, after consulting with the Secretary of
Agriculture and the Secretary of Health and Human Services, determines
that such a higher level is necessary to carry out the purposes of this
part and is consistent with the eligibility criteria established for the
weatherization program under section 222(a)(12) of the Economic
Opportunity Act of 1964;
(2) Is the basis on which cash assistance payments have been paid
during the preceding twelve month-period under Titles IV and XVI of the
Social Security Act or applicable State or local law; or
(3) If a State elects, is the basis for eligibility for assistance
under the Low Income Home Energy Assistance Act of 1981, provided that
such basis is at least 125 percent of the poverty level determined in
accordance with criteria established by the Director of the Office of
Management and Budget.
Native American means a person who is a member of an Indian tribe.
Number of Low-Income, Owner-Occupied Dwelling Units in the State
means the number of such dwelling units in a State, as determined by
DOE.
Number of Low-Income, Renter-Occupied Dwelling Units in the State
means the number of such dwelling units in a State, as determined by
DOE.
Operations Office Manager means the manager of a DOE Operations
Office or the manager's designee, or any official to whom the manager's
functions may be redelegated by the Secretary.
Percentage of Total Residential Energy Used for Space Cooling means
the national percentage of total energy used for space cooling, as
determined by DOE.
Percentage of Total Residential Energy Used for Space Heating means
the national percentage of total energy used for space heating, as
determined by DOE.
Relevant Reporting Period means the Federal fiscal year beginning on
October 1 and running through September 30 of the following calendar
year.
Rental Dwelling Unit means a dwelling unit occupied by a person who
pays rent for the use of the dwelling unit.
Secretary means the Secretary of the Department of Energy.
Separate Living Quarters means living quarters in which the occupants
do not live and eat with any other persons in the structure and which
have either (1) direct access from the outside of the building or
through a common hall or (2) complete kitchen facilities for the
exclusive use of the occupants. The occupants may be a single family,
one person living alone, two or more families living together, or any
other group of related or unrelated persons who share living
arrangements.
Single-Family Dwelling Unit means a structure containing no more than
one dwelling unit.
Skirting means material used to border the bottom of a dwelling unit
to prevent infiltration.
State means each of the States and the District of Columbia.
Subgrantee means an entity managing a weatherization project which
receives a grant of funds awarded under this part from a grantee.
Tribal Organization means the recognized governing body of any Indian
tribe or any legally established organization of Native Americans which
is controlled, sanctioned, or chartered by such governing body.
Unit of General Purpose Local Government means any city, county,
town, parish, village, or other general purpose political subdivision of
a State.
Vestibule' means an enclosure built around a primary entry to a
dwelling unit.
Weatherization Materials mean:
(1) Caulking and weatherstripping of doors and windows;
(2) Furnace efficiency modifications, including, but not limited to
--
(i) Replacement burners, furnaces, or boilers or any combination
thereof;
(ii) Devices for minimizing energy loss through heating system,
chimney, or venting devices; and
(iii) Electrical or mechanical furnace ignition systems which replace
standing gas pilot lights.
(3) Clock thermostats;
(4) Ceiling, attic, wall, floor, and duct insulation;
(5) Water heater insulation;
(6) Storm windows and doors, multiglazed windows and doors,
heat-absorbing or heat-reflective window and door materials; and
(7) The following insulating or energy conserving devices or
technologies:
(i) Skirting;
(ii) Items to improve attic ventilation;
(iii) Vapor barriers;
(iv) Materials used as a patch to reduce infiltration through the
building envelope;
(v) Water flow controllers;
(vi) Movable insulation systems for windows;
(vii) Materials to construct vestibules;
(viii) Pipe and boiler insulation;
(ix) Heat exchangers;
(x) Thermostat control systems;
(xi) Replacement windows and doors;
(xii) Materials used for water heater modifications which will result
in improved energy efficiency;
(xiii) Hot water heat pumps;
(xiv) Waste heat recovery devices;
(xv) Materials used for heating and cooling system tuneups, repairs,
and modifications which will result in improved energy efficiency; and
(xvi) Materials used for boiler tuneups, repairs, and modifications
which will result in improved energy efficiency.
Weatherization Project means a project conducted in a single
geographical area which undertakes to weatherize dwelling units that are
energy inefficient.
(49 FR 3629, Jan. 27, 1984, as amended at 50 FR 712, Jan. 4, 1985;
50 FR 49917, Dec. 5, 1985; 55 FR 41325, Oct. 10, 1990)
10 CFR 440.10Allocation of funds.
(a) DOE shall allocate finanical assistance for each State from sums
appropriated for any fiscal year, only upon annual application.
(b) DOE shall determine the tentative allocation for each State from
available funds as follows:
(1) The first $5,100,000 appropriated shall be divided equally among
the States; an additional $100,000 shall be allocated to Alaska.
(2) The percentage of the remaining available funds tentatively
allocated to each State shall be determined by the following formula:
(i) The square of the number of heating degree days in a State
multiplied by the percentage of total residential energy used for space
heating;
(ii) Plus the square of the number of cooling degree days in the
State multiplied by the percentage of total residential energy used for
space cooling;
(iii) Multiplied by the sum of the number of low-income,
owner-occupied dwelling units in the State and one-half of the number of
low-income, renter-occupied dwelling units in the State;
(iv) Divided by the sum of the result produced for all States by the
computation outlined in paragraphs (b)(2) (i), (ii) and (iii) of this
section; and
(v) Multiplied by 100.
(c) DOE may reduce the tentative allocation for a State by the amount
DOE determines cannot be reasonably expended by a grantee to weatherize
dwelling units during the budget period for which financial assistance
is to be awarded. In reaching this determination, DOE will consider the
amount of unexpended financial assistance currently available to a
grantee under this part and the number of dwelling units which remain to
be weatherized with the unexpended financial assistance.
(d) DOE may increase the tentative allocation of a State by the
amount DOE determines the grantee can expend to weatherize additional
dwelling units during the budget period for which financial assistance
is to be awarded.
(e) The Operations Office Manager shall notify each State of the
tentative allocation for which that State is eligible to apply.
10 CFR 440.11Native Americans.
(a) Notwithstanding any other provision of this part, the Operations
Office Manager may determine, after taking into account the amount of
funds made available to a State to carry out the purposes of this part,
that:
(1) The low-income members of an Indian tribe are not receiving
benefits under this part equivalent to the assistance provided to other
low-income persons in the State under this part and
(2) The low-income members of such tribe would be better served by
means of a grant made directly to provide such assistance.
(b) In any State for which the Operations Office Manager shall have
made the determination referred to in paragraph (a) of this section, the
Operations Office Manager shall reserve from the sums that would
otherwise be allocated to the State under this part not less than 100
percent, or more than 150 percent, of an amount which bears the same
ratio to the State's allocation for the fiscal year involved as the
population of all low-income Native Americans for whom a determination
under paragraph (a) of this section has been made bears to the
population of all low-income persons in the State.
(c) The Operations Office Manager shall make the determination
prescribed in paragraph (a) of this section in the event a State:
(1) Does not apply within the sixty-day time period prescribed in
440.12(a);
(2) Recommends that direct grants be made for low-income members of
an Indian tribe as provided in 440.12(b)(5);
(3) Files an application which DOE determines, in accordance with the
procedures in 440.30, not to make adequate provision for the low-income
members of an Indian tribe residing in the State; or
(4) Has received grant funds and DOE determines, in accordance with
the procedures in 440.30, that the State has failed to implement the
procedures required by 440.16(6).
(d) Any sums reserved by the Operations Office Manager pursuant to
paragraph (b) of this section shall be granted to the tribal
organization serving the individuals for whom the determination has been
made, or where there is no tribal organization, to such other entity as
the Operations Office Manager determines is able to provide adequate
weatherization assistance pursuant to this part. Where the Operations
Office Manager intends to make a grant to an organization to perform
services benefiting more than one Indian tribe, the approval of each
Indian tribe shall be a prerequisite for the issuance of a notice of
grant award.
(e) Within 30 days after the Operations Office Manager has reserved
funds pursuant to paragraph (b) of this section, the Operations Office
Manager shall give written notice to the tribal organization or other
qualified entity of the amount of funds reserved and its eligibility to
apply therefor.
(f) Such tribal organization or other qualified entity shall
thereafter be treated as a unit of general purpose local government
eligible to apply for funds hereunder, pursuant to the provisions of
440.13.
10 CFR 440.12 State application.
(a) To be eligible for financial assistance under this part, a State
shall submit an application to DOE in conformity with the requirements
of this part not later than 60 days after the date of notice to apply is
received from the Operations Office Manager. After receipt of an
application for financial assistance or for approval of an amendment to
a State plan, the Operations Office Manager may request the State to
submit within a reasonable period of time any revisions necessary to
make the application complete or to bring the application into
compliance with the requirements of this part. The Operations Office
Manager 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 the application, the Operations
Office Manager may reject the application as incomplete in a written
decision, including a statement of reasons, which shall be subject to
administrative review under 440.30 of this part.
(b) Each application shall include:
(1) The name and address of the State agency or office responsible
for administering the program;
(2) A copy of the final State plan prepared after notice and a public
hearing in accordance with 440.14(a), except that an application by a
local applicant need not include a copy of the final State plan;
(3) The budget for total funds applied for under the Act, which shall
include a justification and explanation of any amounts requested for
expenditure pursuant to 440.18(d) for State administration;
(4) The total number of dwelling units proposed to be weatherized
with grant funds during the budget period for which assistance is to be
awarded, (i) with financial assistance previously obligated under this
part, and (ii) with the tentative allocation to the State;
(5) A recommendation that a tribal organization be treated as a local
applicant eligible to submit an application pursuant to 440.13(b), if
such a recommendation is to be made;
(6) A monitoring plan which shall indicate the method used by the
State to insure the quality of work and adequate financial management
control at the subgrantee level;
(7) A training and technical assistance plan which shall indicate how
funds for training and technical assistance will be used; and
(8) Any further information which the Secretary finds necessary to
determine whether an application meets the requirements of this part.
(c) On or before 60 days from the date that a timely filed
application is complete, the Operations Office Manager shall decide
whether DOE shall approve the application. The Operations Office
Manager may --
(1) Approve the application in whole or in part to the extent that
the application conforms to the requirements of this part;
(2) Approve the application in whole or in part subject to special
conditions designed to ensure compliance with the requirements of this
part; or
(3) Disapprove the application if it does not conform to the
requirements of this part.
(Approved by the Office of Management and Budget under control number
1904-0047)
(49 FR 3629, Jan. 27, 1984, as amended at 50 FR 712, Jan. 4, 1985;
55 FR 41325, Oct. 10, 1990)
10 CFR 440.13Local applications.
(a) The Operations Office Manager shall give written notice to all
local applicants throughout a State of their eligibility to apply for
financial assistance under this part in the event:
(1) A State, within which a local applicant is situated, fails to
submit an application within 60 days after notice in accordance with
440.12(a) or
(2) The Operations Office Manager finally disapproves the application
of a State pursuant to 440.30 of this part.
(b) To be eligible for financial assistance, a local applicant shall
submit an application pursuant to 440.12(b) to the Operations Office
Manager within 30 days after receiving the notice referred to in
paragraph (a) of this section.
(c) In the event one or more local applicants submit applications,
the Operations Office Manager shall combine the hearing on the proposed
plan pursuant to 440.14(a) with a hearing on the intention to deny the
timely application of one or more local applicants, as provided in
440.30, to the maximum extent practicable. Based upon the final plan
developed by the Operations Office Manager, the hearing, and information
submitted by a local applicant and other interested persons, the
Operations Office Manager shall determine whether or not to award a
grant to a local applicant, and the amount thereof. The Operations
Office Manager may provide financial assistance to a local applicant to
carry out one or more weatherization projects.
(Approved by the Office of Management and Budget under control number
1904-0047)
10 CFR 440.14State plans.
(a) Before submitting an application, a State shall give not less
than 10 days notice of hearing, reasonably calculated to inform
prospective subgrantees, and shall conduct one or more public hearing
for the purpose of receiving comments on a proposed State plan. The
proposed State plan shall identify and describe proposed weatherization
projects, including a statement of proposed subgrantees and the amount
each will receive; shall address the other items contained in paragraph
(b) of this section; and shall be made available throughout the State
prior to the hearing. The notice for the hearing shall specify that
copies of the plan are available and how they may be obtained. A
transcript of the hearings shall be prepared and written submission of
views and data shall be accepted for the record.
(b) Subsequent to the hearing, the State shall prepare a final State
plan which shall identify and describe:
(1) The production schedule for the State which shall indicate
projected expenditures and the number of dwelling units which are
expected to be weatherized each month during the program year;
(2) An estimate of the number of dwelling units expected to be
weatherized during the program year by category to include:
(i) Single family and multi family residences;
(ii) Elderly persons residences;
(iii) Handicapped persons residences;
(iv) Renters residences; and
(v) If Native Americans do not receive direct grants under 440.11,
Native American residences.
(3) The climatic conditions within the State;
(4) The type of weatherization work to be done;
(5) An estimate of the amount of energy to be conserved;
(6) An estimate of the number of eligible dwelling units in which the
elderly reside;
(7) An estimate of the number of eligible dwelling units in which the
handicapped reside;
(8) Each area to be served by a weatherization project within the
State, and shall include for each area:
(i) The tentative allocation;
(ii) The number of dwelling units expected to be weatherized during
the program year;
(iii) The estimated number of rental dwelling units to be
weatherized; and
(iv) Sources of labor.
(9) The manner in which the State plan is to be implemented, and
shall include:
(i) An analysis of the existence and effectiveness of any
weatherization project being carried out by a subgrantee;
(ii) An explanation of the method used to select each area to be
served by a weatherization project;
(iii) The extent to which priority will be given to the
weatherization of single-family or other high energy consuming dwelling
units;
(iv) The amount of non-Federal resources to be applied to the
program;
(v) The amount of Federal resources, other than DOE weatherization
grant funds, to be applied to the program;
(vi) The amount of weatherization grant funds tentatively allocated
to the State under this part;
(vii) The expected average cost per dwelling to be weatherized,
taking into account the total number of dwellings to be weatherized and
the total amount of funds, Federal and non-Federal, expected to be
applied to the program;
(viii) The average amount of the DOE funds specified in
440.18(c)(1)-(11) to be applied to any dwelling unit;
(ix) The average amount of DOE funds to be applied to any dwelling
unit for weatherization materials as specified in 440.18(c)(1);
(x) Procedures for determining the most cost-effective measures in a
dwelling unit or a statement that Project Retro-Tech will be used; and
(xi) The definition of ''low income'' in accordance with 440.3 which
the State has chosen for determining eligibility.
(Approved by the Office of Management and Budget under control number
1904-0047)
(49 FR 3629, Jan. 27, 1984, as amended at 50 FR 712, Jan. 4, 1985)
10 CFR 440.15Subgrantees.
(a) The grantee shall ensure that:
(1) Each subgrantee is a CAA or other public or nonprofit entity;
(2) Each subgrantee is selected on the basis of public comment
received during a public hearing conducted pursuant to 440.14(a) and
other appropriate findings regarding:
(i) The subgrantee's experience and performance in weatherization or
housing renovation activities;
(ii) The subgrantee's experience in assisting low-income persons in
the area to be served; and
(iii) The subgrantee's capacity to undertake a timely and effective
weatherization program.
(3) In selecting a subgrantee, preference is given to any CAA or
other public or nonprofit entity which has, or is currently
administering, an effective program under this part or under Title II of
the Economic Opportunity Act of 1964, with program effectiveness
evaluated by consideration of factors including, but not necessarily
limited to, the following:
(i) The extent to which the past or current program achieved or is
achieving weatherization goals in a timely fashion;
(ii) The quality of work performed by the subgrantee;
(iii) The number, qualifications, and experience of the staff members
of the subgrantee; and
(iv) The ability of the subgrantee to secure volunteers, training
participants, and public service employment workers pursuant to JTPA.
(b) The grantee shall ensure that the funds received under this part
will be allocated to the entities selected in accordance with paragraph
(a) of this section, such that funds will be allocated to areas on the
basis of the relative need for a weatherization project by low-income
persons.
(c) If DOE finds that a subgrantee selected to undertake
weatherization activities under this part has failed to comply
substantially with the provisions of the Act or this part and should be
replaced, such finding shall be treated as a finding under 440.30(i)
for purposes of 440.30.
(d) Any new or additional subgrantee shall be selected at a hearing
in accordance with 440.14(a) and upon the basis of the criteria in
paragraph (a) of this section.
(49 FR 3629, Jan. 27, 1984, as amended at 55 FR 41326, Oct. 10, 1990)
10 CFR 440.16Minimum program requirements.
Prior to the expenditure of any grant funds each grantee shall
develop, publish, and implement procedures to ensure that:
(a) No dwelling unit may be weatherized without documentation that
the dwelling unit is an eligible dwelling unit as provided in 440.22;
(b) Priority is given to identifying and providing weatherization
assistance to elderly and handicapped low-income persons, and such
priority as the applicant determines is appropriate is given to
single-family or other high-energy-consuming dwelling units;
(c) Financial assistance provided under this part will be used to
supplement, and not supplant, State or local funds, and, to the maximum
extent practicable as determined by DOE, to increase the amounts of
these funds that would be made available in the absence of Federal funds
provided under this part;
(d) To the maximum extent practicable, the grantee will secure the
services of volunteers, training participants and public service
employment workers, pursuant to JTPA, to work under the supervision of
qualified supervisors and foremen;
(e) To the maximum extent practicable, the use of weatherization
assistance shall be coordinated with other Federal, State, local, or
privately funded programs in order to improve energy efficiency and to
conserve energy;
(f) The low-income members of an Indian tribe shall receive benefits
equivalent to the assistance provided to other low-income persons within
a State unless the grantee has made the recommendation provided in
440.12(b)(5); and
(g) No dwelling unit may be reported to DOE as completed until the
subgrantee, or its authorized representative, has performed a final
inspection and certified that applicable work has been completed in a
workmanlike manner and in accordance with the priority determined by the
audit procedures required by 440.21(b).
(Approved by the Office of Management and Budget under control number
1904-0047)
10 CFR 440.17Policy Advisory Council.
(a) Prior to the expenditure of any grant funds, a State policy
advisory council shall be established by a State or by the Operations
Office Manager if a State does not participate in the program which:
(1) Has special qualifications and sensitivity with respect to
solving the problems of low-income persons, including the weatherization
and energy conservation problems of these persons;
(2) Is broadly representative of organizations and agencies,
including consumer groups that represent low-income persons,
particularly elderly and handicapped low-income persons and low-income
Native Americans, in the State or geographical area in question; and
(3) Has responsibility for advising the appropriate official or
agency administering the allocation of financial assistance in the State
or area with respect to the development and implementation of a
weatherization assistance program.
10 CFR 440.18Allowable expenditures.
(a) An average of at least forty percent of the funds provided in a
State under this part for weatherization materials, labor and related
matters included in paragraphs (c)(1) through (9) of this section shall
be spent for weatherization materials.
(b) The expenditure of financial assistance provided under this part
for labor, weatherization materials and related matters included in
paragraphs (c)(1) through (9) of this section shall not exceed an
average of $1,600 per dwelling unit weatherized in the State.
(c) Allowable expenditures under this part include only:
(1) The cost of purchase and delivery of weatherization materials;
(2) Labor costs, in accordance with 440.19;
(3) Transportation of weatherization materials, tools, equipment, and
work crews to a storage site and to the site of weatherization work;
(4) Maintenance, operation, and insurance of vehicles used to
transport weatherization materials;
(5) Maintenance of tools and equipment;
(6) Purchase or annual lease of tools, equipment, and vehicles,
except that any purchase of vehicles shall be referred to DOE for prior
approval in every instance;
(7) Employment of on-site supervisory personnel;
(8) Storage of weatherization materials, tools and equipment;
(9) The cost of incidental repairs if such repairs are necessary to
make the installation of weatherization materials effective;
(10) The cost of liability insurance for weatherization projects for
personal injury and for property damage;
(11) The cost of carrying out low-cost/no-cost weatherization
activities in accordance with 440.20; and
(12) Allowable administrative expenses under paragraph (d) of this
section.
(d) Not more than 10 percent of any grant made to a State may be used
by the grantee and subgrantees for administrative purposes in carrying
out duties under this part, except that not more than 5 percent may be
used by the State for such purposes.
(e) No grant funds awarded under this part shall be used for any of
the following purposes:
(1) To weatherize a dwelling unit which is designated for acquisition
or clearance by a Federal, State, or local program within twelve months
from the date weatherization of the dwelling unit would be scheduled to
be completed; or
(2) To install or otherwise provide weatherization materials for a
dwelling unit weatherized previously with grant funds under paragraph
(a)(1) of this section, except:
(i) As provided under 440.20;
(ii) Unless such dwelling unit has been damaged by fire, flood or act
of God and repair of the damage to weatherization materials is not paid
for by insurance; or
(iii) That dwelling units partially weatherized under this part or
under other Federal programs during the period September 30, 1975,
through September 30, 1979, may receive further financial assistance for
weatherization under this part.
(50 FR 712, Jan. 4, 1985)
10 CFR 440.19Labor.
(a) Payments for labor costs under 440.18(c)(2) shall consist of:
(1) Payments permitted by the Department of Labor to supplement wages
paid to training participants and public service employment workers
pursuant to JTPA and
(2) Payments to employ labor (particularly persons eligible for
training under JTPA) or to engage a contractor (particularly a nonprofit
organization or a business owned by disadvantaged individuals which
performs weatherization services), to install weatherization materials
provided a grantee has determined an adequate number of volunteers,
training participants, and public service employment workers, assisted
pursuant to JTPA, are not available to weatherize dwelling units for a
subgrantee under the supervision of qualified supervisors.
(49 FR 3629, Jan. 27, 1984, as amended at 50 FR 713, Jan. 4, 1985)
10 CFR 440.20Low-cost/no-cost weatherization activities.
(a) An eligible dwelling unit may be weatherized without regard to
the limitations contained in 440.18 (e)(2) or 440.21(b) from funds
designated by the grantee for carrying out low-cost/no-cost
weatherization activities provided:
(1) Inexpensive weatherization materials are used, such as water flow
controllers, furnace or cooling filters, or items which are primarily
directed toward reducing infiltration, including weatherstripping,
caulking, glass patching, and insulation for plugging and
(2) No labor paid with funds provided under this part is used to
install weatherization materials referred to in paragraph (a)(1) of this
section.
(b) A maximum of 10 percent of the amount allocated to a subgrantee,
not to exceed $50 in materials costs per dwelling unit, may be expended
to carry out low-cost/no-cost weatherization activities, unless the
Operations Office Manager approves a higher expenditure per dwelling
unit.
(49 FR 3629, Jan. 27, 1984, as amended at 50 FR 713, Jan. 4, 1985)
10 CFR 440.21Standards and techniques for weatherization.
(a) For those weatherization materials listed in 440.3, only
weatherization materials which meet or exceed standards prescribed in
Appendix A to this part shall be purchased with funds provided under
this part.
(b) The most cost-effective weatherization materials for each
dwelling unit shall be determined by audit procedures using the
following formula:
(1) The cost of fuel saved per year by installing a weatherization
material in a dwelling unit;
(2) Multiplied by the appropriate lifetime of the weatherization
material; and
(3) Divided by the cost of the weatherization material and the cost
of the installation of the weatherization material.
(c) The computation of the cost of fuel saved per year must take into
account the number of heating or cooling degree days in the area for
which the computation is being made and must otherwise use reasonable
methods and assumptions.
(d) The figures used for the lifetime of the materials and for the
costs of materials and cost of the installation of the materials must be
generally accepted in the relevant trade.
(e) The weatherization materials which shall be installed first are
those which are determined to be the most cost effective using the
formula in paragraph (b) of this section.
(f) The audit procedures used in Project Retro-Tech to determine the
most cost-effective weatherization materials comply with this section.
The grantee or subgrantee may use other audit procedures to determine
the most cost-effective weatherization materials, provided that these
procedures comply with this section and are approved by the Operations
Office Manager prior to their use. A grantee or subgrantee may use
results obtained from audits conducted under the Residential
Conservation Service Program as part of the audit procedures which have
been approved by the Operations Office Manager.
(49 FR 3629, Jan. 27, 1984, as amended at 50 FR 713, Jan. 4, 1985)
10 CFR 440.22 Eligible dwelling units.
(a) A dwelling unit shall be eligible for weatherization assistance
under this part if it is occupied by a family unit:
(1) Whose income is at or below 125 percent of the poverty level
determined in accordance with criteria established by the Director of
the Office of Management and Budget;
(2) Which contains a member who has received cash assistance payments
under Title IV or XVI of the Social Security Act or applicable State or
local law during the twelve-month period preceding the determination of
eligibility for weatherization assistance; or
(3) If the State elects, is eligible for assistance under the
Low-Income Home Energy Assistance Act of 1981, provided that such basis
is at least 125 percent of the poverty level determined in accordance
with criteria established by the Director of the Office of Management
and Budget.
(b) A subgrantee may weatherize a building containing rental dwelling
units using financial assistance for dwelling units eligible for
weatherization assistance under paragraph (a) of this section, where:
(1) The subgrantee has obtained the written permission of the owner
or his agent:
(2) Not less than 66 percent (50 percent for duplexes and four-unit
buildings) of the dwelling units in the building:
(i) Are eligible dwelling units, or
(ii) Will become eligible dwelling units within 180 days under a
Federal, State or local government program for rehabilitating the
building or making similar improvements to the building; and
(3) The grantee has established procedures approved by the Operations
Office Manager to insure that:
(i) Rents shall not be raised because of the increased value of
dwelling units due solely to weatherization assistance provided under
this part and
(ii) No undue or excessive enhancement shall occur to the value of
the dwelling units.
(49 FR 3629, Jan. 27, 1984, as amended at 50 FR 713, Jan. 4, 1985)
10 CFR 440.23 Oversight, training, and technical assistance.
(a) The Secretary and the appropriate Operations Office Manager, in
coordination with the Secretary of Health and Human Services, shall
monitor and evaluate the operation of projects carried out by CAA's
receiving financial assistance under this part through on-site
inspections, or through other means, in order to ensure the effective
provision of weatherization assistance for the dwelling units of
low-income persons.
(b) DOE shall also carry out periodic evaluations of a program and
weatherization projects that are not carried out by a CAA and that are
receiving financial assistance under this part.
(c) The Secretary and the appropriate Operations Office Manager, the
Comptroller General of the United States, and for a weatherization
project carried out by a CAA, the Secretary of Health and Human Services
or any of their duly authorized representatives, shall have access to
any books, documents, papers, information, and records of any
weatherization project receiving financial assistance under the Act for
the purpose of audit and examination.
(d) Each grantee shall ensure that audits by or on behalf of
subgrantees are conducted with reasonable frequency, on a continuing
basis, or at scheduled intervals, usually annually, but not less
frequently than every two years, in accordance with OMB Circular A-102,
Attachment P, and OMB Circular 110, Attachment F, as applicable.
(e) The Secretary may reserve from the funds appropriated for any
fiscal year an amount not to exceed 10 percent to provide, directly or
indirectly, training and technical assistance to any grantee or
subgrantee. Such training and technical assistance may include
providing information concerning conservation practices to occupants of
eligible dwelling units.
10 CFR 440.24 Recordkeeping.
Each grantee or subgrantee receiving Federal financial assistance
under this part shall keep such records as DOE shall require, including
records which fully disclose the amount and disposition by each grantee
and subgrantee of the funds received, the total cost of a weatherization
project or the total expenditure to implement the State plan for which
assistance was given or used, the source and amount of funds for such
project or program not supplied by DOE, and such other records as DOE
deems necessary for an effective audit and performance evaluation. Such
recordkeeping shall be in accordance with the DOE Financial Assistance
Rule, 10 CFR Part 600 and any further requirements of this regulation.
(Approved by the Office of Management and Budget under control number
1904-0047)
10 CFR 440.25Reports.
DOE may require any recipient of financial assistance under this part
to provide, in such form as may be prescribed, such reports or answers
in writing to specific questions, surveys, or questionnaires as DOE
determines to be necessary to carry out its responsibilities or the
responsibilities of the Secretary of Health and Human Services under
this part.
(Approved by the Office of Management and Budget under control number
1901-0127)
10 CFR 440.26 Establishment of the Performance Fund.
The Secretary shall allot annually not less than five percent and no
more than fifteen percent of the amount appropriated for each fiscal
year for the program to a special Performance Fund, to be awarded to
provide additional financial assistance under this part to the States
which DOE determines demonstrated the best performance during the
previous fiscal year in accordance with the evaluative criteria
established in 440.27 and the procedures established in 440.28. DOE
will announce the percentage chosen for the year in the Annual Grant
Guidance issued to States.
(50 FR 49917, Dec. 5, 1985)
10 CFR 440.27 Evaluating State Performance.
(a) Information. (1) DOE will evaluate annually the performance of
each State in the program based on the criteria set forth in paragraphs
(b), (c), and (d) of this section from the following information
submitted to DOE by the State:
(i) The annual State Application under 440.12 including:
(A) The State Plan,
(B) The Monitoring Plan, and
(C) The Training and Technical Assistance Plan;
(ii) Monthly and quarterly reports required pursuant to 440.25; and
(iii) Any additional relevant information available to DOE.
(2) For the purposes of this Performance Fund, failure to submit
these forms within 30 days after the end of the fiscal year will result
in a score of zero for the applicable criterion.
(b) Percent of units weatherized (Maximum Score: 25 points). DOE
will score the States according to the reported percentage of eligible
dwelling units in the State weatherized during the relevant reporting
period. A State's score for this criterion is determined by taking the
number of dwelling units weatherized, as reported to DOE pursuant to
440.25, dividing it by the number of dwelling units expected to be
weatherized during the relevant reporting period as submitted by the
State in accordance with 440.14(b)(8)(ii), and multiplying the result
by 25.
(c) Comparable energy savings (Maximum Score: 25 points). (1) DOE
will award points to each State for the percentage of energy to be
conserved in the State, as reported in the State Plan in accordance with
440.14(b)(6), as follows:
(i) No points will be awarded for estimated energy savings of ten
percent or less;
(ii) Five points will be awarded for estimated energy savings between
eleven and twelve percent;
(iii) Ten points will be awarded for estimated energy savings between
thirteen and fourteen percent;
(iv) Twelve points will be awarded for estimated energy savings
between fifteen and sixteen percent;
(v) Fourteen points will be awarded for estimated energy savings
between seventeen and eighteen percent;
(vi) Sixteen points will be awarded for estimated energy savings
between nineteen and twenty percent;
(vii) Eighteen points will be awarded for estimated energy savings
between twenty-one and twenty-two percent; and
(viii) Twenty-five points will be awarded for estimated energy
savings of twenty-three percent or higher.
(2) If a State estimates energy savings to be greater than fourteen
percent it must provide DOE with relevant information to support its
estimates. To be acceptable to DOE for purposes of demonstrating energy
savings, the study methodology must meet the following criteria:
(i) Monitor energy use over at least one complete heating/cooling
period;
(ii) Use a scientifically selected random sample of homes weatherized
in the State during the study period;
(iii) Use statistically sound, generally accepted data analysis
techniques to measure and compare before and after energy use; and
(iv) Document study procedure and results.
(d) Achievement of goals (Maximum Score: 50 points). (1) DOE will
award each State a maximum score as indicated for each of the following
goals stated in the State's Application under 440.12 and the State Plan
under 440.14:
(i) The production schedule indicating projected expenditures each
month ( 440.14(b)(1)) -- (maximum score 10 points);
(ii) The number of dwelling units to be weatherized during the
relevant reporting period by category ( 440.14(b)(2)) -- (maximum score
10 points);
(iii) The amount spent (at least forty percent) on weatherization
materials ( 440.14(b)(9) (ix)) -- (maximum score 10 points);
(iv) The average amount of funds (not to exceed an average of $1600)
to be applied to a dwelling unit ( 440.14(b)(9) (viii)) -- (maximum
score 10 points);
(v) Compliance with the State Training and Technical Assistance Plan
( 440.12(b)(7)) -- (maximum score 5 points); and
(vi) Compliance with the State Monitoring Plan ( 440.12(b)(6)) --
(maximum 5 points).
(2) For each of paragraphs (d)(1) (i), (ii), (v), and (vi) of this
section, a score will be awarded to a State by dividing the amount of
actual achievement, as reported to DOE pursuant to 440.25, by the goal
stated in the State's Application, and multiplying the result by ten for
paragraphs (b)(1) (i) and (ii), and multiplying the result by five for
paragraphs (d)(1) (v) and (vi).
(3) For each of paragraphs (d)(1) (iii) and (iv) of this section, a
State will be awarded ten points if it complies with the criterion and
no points if the State fails to comply.
(50 FR 49917, Dec. 5, 1985)
10 CFR 440.28 Awarding the Performance Fund.
(a) DOE will award funds from the Performance Fund to the twenty
States annually determined to have demonstrated the best performance
based on the criteria set forth in 4440.27. If two or more States tie
at the twentieth place, they will all qualify for the Performance Fund.
(b) At a minimum, the amount of funds from the Performance Fund to be
awarded to a State will be the percentage of the State's tentative
allocation that is equal to the percentage of funds reserved for the
Performance Fund for that year.
(c) DOE will distribute the remaining money in the Performance Fund
among the twenty States on the basis of their demonstrated ability to
use program funds, except that no State will receive an amount equal to
more than 50 percent of its tentative allocation. DOE will make this
determination based primarily on the information provided by the States
to DOE for the relevant reporting period, and possibly for other periods
of time, in the Monthly Status Report, Standard Form 459E, which details
the States' production and expenditures, and the Quarterly Financial
Status Report, Standard Form 269.
(50 FR 49918, Dec. 5, 1985)
10 CFR 440.29 Appeals.
(a) DOE will notify each State in writing of its score, ranking and
the amount of funds, if any, to be awarded from the Peformance Fund.
(b) If a State believes a technical or clerical error was made in
arriving at its score, the State may file an appeal in writing with the
Assistant Secretary for Conservation and Renewable Energy, within ten
days of receipt of notification, at the Office of Weatherization
Assistance, U.S. Department of Energy, Mail Stop 5G-023, 1000
Independence Avenue, SW., Washington, DC 20585 and marked
''Weatherization Assistance: Appeal.''
(c) 10 CFR 205.131 and 205.134 provide the format for such a request.
(d) The appeal must adequately explain how DOE made a technical or
clerical error.
(e) DOE shall consider the appeal and notify the State of DOE's final
determination within 30 days of the receipt of the appeal, if at all
possible.
(50 FR 49918, Dec. 5, 1985)
10 CFR 440.30 Administrative review.
(a) An applicant shall have 20 days from the date of receipt of a
decision under 440.12 to file a notice requesting administrative
review. If an applicant does not timely file such a notice, the
decision under 440.12 shall become final for DOE.
(b) A notice requesting administrative review shall be filed with the
Operations Office Manager and shall be accompanied by a written
statement containing supporting arguments and requesting, if desired,
the opportunity for 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 Operations Office
Manager shall forward to the Deputy Assistant Secretary, the notice
requesting administrative review, the decision under 440.12 as to which
administrative review is sought, a draft recommended final decision for
the concurrence of the Deputy Assistant Secretary, and any other
relevant material.
(e) If the applicant requests a public hearing, the Deputy Assistant
Secretary, within 15 days, shall give actual notice to the State and
Federal Register notice of the date, place, time, and procedures which
shall apply to the public hearing. Any public hearing under this
section shall be informal and legislative in nature.
(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
Operations Office Manager.
(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, with a supporting statement of reasons, 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 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 of eligibility for
further participation in the program because of failure to comply
substantially with the requirements of the Act or of this part, a
grantee shall have the right to written notice of the basis for the
enforcement action and the opportunity for a public hearing
notwithstanding any provisions to contrary of 10 CFR 600.26, 600.28(b),
600.29, 600.121(c), and 600.443. A notice under this paragraph shall be
mailed by the Operations Office Manager by registered mail,
return-receipt requested, to the State, local grantee, and other
interested parties. To obtain a public hearing, the grantee must
request an evidentiary hearing, with prior Federal Register notice, in
the election letter submitted under Rule 2 of 10 CFR 1024.4 and the
request shall be granted notwithstanding any provisions of Rule 2 to the
contrary.
(55 FR 41326, Oct. 10, 1990)
10 CFR 440.30 Pt. 440, App. A
10 CFR 440.30 Appendix A -- Standards for Weatherization Materials
The following Government standards are produced by the Consumer
Products Safety Commission and are published in Title 16, Code of
Federal Regulations.
Thermal Insulating Materials for Building Elements Including Walls,
Floors, Ceilings, Attics and Roofs Insulation -- organic fiber --
conformance to Interim Safety Standard 16 CFR Part 1209
Fire Safety Requirements for Thermal Insulating Materials According
to Insulation Use -- Attic Floor -- insulation materials intended for
exposed use in attic floors shall be capable of meeting the same
flammability requirements given for cellulose insulation in 16 CFR Part
1209
Enclosed spaces -- insulation materials intended for use within
enclosed stud or joist spaces shall be capable of meeting the smoldering
combustion requirements in 16 CFR Part 1209
The following standards which are not otherwise set forth in Part 440
are incorporated by reference and made a part of Part 440. The
following standards have been approved for incorporation by reference by
the Director of the Federal Register. These materials are incorporated
as they exist on February 27 and a notice of any change in these
materials will be published in the Federal Register. The standards
incorporated by reference are available for inspection at the Office of
the Federal Register Information Center, Room 8301, 1100 L Street, NW.,
Washington, D.C. 20408.
Materials incorporated by reference are also available from the
following sources:
American Society for Testing and Materials, 1916 Race Street,
Philadelphia, Pa. 19103
FS-Federal Specifications, General Services Administration,
Specifications Section, Room 6039, 7th and D Streets, SW., Washington,
D.C. 20407
American National Standards Institute, Inc., 1430 Broadway, New York,
N.Y. 10018
Architectural Aluminum Manufacturers Association, 35 East Wacker
Drive, Chicago, Ill. 60601
National Woodwork Manufacturers Association, 205 West Touhy Ave.,
Park Ridge, Ill. 60068
Fir and Hemlock Door Association, Yeon Building, Portland, Oregon
97204
Steel Door Institute, 712 Lakewood Center North, 14600 Detroit Ave.,
Cleveland, Ohio 44107
Steel Window Institute, 1230 Keith Building, Cleveland, Ohio 44115
National Electrical Manufacturers Association, 2101 L St., NW.,
Washington, D.C. 20037
American Society of Mechanical Engineers, United Engineering Center,
345 East 47th Street, New York, N.Y. 10017
American Gas Association, 1515 Wilson Boulevard, Arlington, Va.
22209
National Fire Protection Association, Batterymarch Park, Quincy,
Mass. 02269
Air-Conditioning and Refrigeration Institute, 1501 Wilson Blvd.,
Arlington, Va. 22209
Sheet Metal and Air Conditioning Contractor's Association, 8224 Old
Courthouse Road, Vienna, Va. 22180
Environmental Protection Agency, 401 M Street, NW., Washington, D.C.
20460
American Society of Heating, Refrigeration and Air-Conditioning
Engineers, Inc., 2029 K Street, NW., Washington, D.C. 20006
Underwriters Laboratories, Inc., 333 Pfingsten Road, Northbrook, Ill.
60062
Office of Weatherization Assistance Program, Conservation and
Renewable Energy, Mail Stop 5G-023, Forrestal Building, 1000
Independence Avenue, SW., Washington, D.C. 20585
(50 FR 713, Jan. 4, 1985)
10 CFR 440.30 PART 445 -- INDUSTRIAL ENERGY CONSERVATION PROGRAM
10 CFR 440.30 Subpart A -- General Provisions
Sec.
445.1 Purpose and scope.
445.2 Definitions.
445.3 Management of the program.
445.4 Handling of information submitted under the program.
445.5 Major energy-consuming industries.
445.6 Procedures for appeals.
445.7 General information-gathering authority.
10 CFR 440.30 Subpart B -- Identification of Corporations
445.11 Scope.
445.12 Requirement for corporations to file a report on energy
consumption.
445.13 Computation of energy consumption.
445.14 Report on energy consumption.
445.15 Identification of corporations by DOE.
445.16 Request for modification.
10 CFR 440.30 Subpart C -- Reporting Requirements
445.21 Plant reporting requirements.
445.22 Corporate reporting requirements.
445.23 Sponsor reporting requirements.
445.24 Reporting period.
445.25 Reporting date and address.
445.26 Data retention.
10 CFR 440.30 Subpart D -- Exemption Criteria and Procedures
445.31 Scope.
445.32 Criteria for the exemption of corporations.
445.33 Criteria for adequate reporting programs.
445.34 Request to be an exempt corporation.
445.35 Request to be a sponsor with adequate reporting programs.
445.36 Filing deadline and address.
445.37 Determination of exempt corporations and adequate reporting
programs.
445.38 Failure to report.
10 CFR 440.30 Subpart E -- Voluntary Energy Efficiency Improvement
Targets and Voluntary Recovered Materials Utilization Targets
445.41 Purpose and scope.
445.42 Energy efficiency improvement targets.
445.43 Modification of energy efficiency improvement targets.
445.44 Recovered materials utilization targets.
445.45 Modification of recovered materials utilization targets.
Authority: Secs. 5, 7, 13, Pub. L. 93-275, 88 Stat. 97 (15 U.S.C.
764, 766, 772); secs. 371-376, Pub. L. 94-163, 89 Stat. 871 (42
U.S.C. 6341-6346), as amended by Pub. L. 95-619, 92 Stat. 3207; secs.
301, 308; Pub. L. 95-91, 91 Stat. 565 (42 U.S.C. 7151, 7158); E.O.
11790 (39 FR 23185); E.O. 12009 (42 FR 46267).
Source: 45 FR 10226, Feb. 14, 1980, unless otherwise noted.
10 CFR 440.30 Subpart A -- General Provisions
10 CFR 445.1Purpose and scope.
This part sets forth the regulations for the Industrial Energy
Conservation Program established under Part E of Title III of the Act.
It includes criteria and procedures for the identification of reporting
corporations, reporting requirements, criteria and procedures for
exemption from filing reports directly with DOE, voluntary industrial
energy efficiency improvement targets and voluntary recovered materials
utilization targets. The purpose of the program is to promote increased
energy conservation by American industry and, as it relates to the use
of recovered materials, to conserve valuable energy and scarce natural
resources.
10 CFR 445.2Definitions.
For the purpose of this part --
''Act'' means the Energy Policy and Conservation Act (Pub. L.
94-163, 80 Stat. 971), as amended by the National Energy Conservation
Policy Act (Pub. L. 95-619, 92 Stat. 3207).
''Btu'' means British thermal unit.
''Chief executive officer'' means, within a corporation or a sponsor,
the chief executive officer or other individual who is in charge of the
corporation or sponsor.
''Commercial quality production'' means the manufacture of products
suitable for shipment and/or sale.
''Control'' means the ability to direct or cause the direction of the
management and policies of a corporation. Whether control is present
involves a question of fact to be determined from such criteria as a
degree of ownership (especially of voting shares), contractual
arrangements and other means of influence, such as ability to appoint a
majority of a corporation's board of directors, whether by sufficient
stock ownership or other means.
''Corporation'' means a person as defined in section 3(2)(b) of the
Act (any corporation, company, association, firm, partnership, society,
trust, joint venture or joint stock company) and includes any person
which controls, is controlled by, or is under common control with such
person.
''DOE'' means the Department of Energy.
''Energy efficiency'' means the amount of energy in Btu's consumed
per unit of production.
''Energy source'' means electricity, purchased steam, natural gas,
bituminous coal, anthracite, coke, ethane, propane, LPG, natural
gasoline, gasoline (including aviation), special naphtha, kerosene,
distillate fuel oil (including diesel), still gas, petroleum coke,
residual fuel oil, crude oil, and any other material consumed as a fuel
in manufacturing.
''Exempt corporation'' means an identified corporation which DOE
determines, pursuant to 445.37, is not required to report directly to
DOE.
''Feedstock'' means petroleum products, natural gas or coal used as a
raw material which is processed to become a part of the chemical
composition of a manufactured product other than an energy source.
''Identified corporation'' means a corporation identified by DOE in
accordance with 445.15. A corporation is an identified corporation for
a year in which it consumed, in accordance with 445.13, at least one
trillion Btu's.
''Major energy-consuming industry'' is an industry listed in
445.5(a).
''Manufacturing'' means the mechanical or chemical transformation of
materials or substances into new products, as described on page 57 of
the Office of Management and Budget Standard Industrial Classification
Manual (1972).
''Manufacturing operation'' means the mechanical or chemical
transformation of materials or substances into a product classified with
SIC codes 22, 26, 30, or 33; which is measured in a single unit of
production. Manufacturing operations include, but are not limited to,
the production of iron, steel, aluminum, copper, lead, zinc, wood pulp,
paper, spun textile goods, woven textile goods, felt textile goods,
non-woven textile goods, tires and tire products, rubber footwear, and
industrial rubber products.
''Obsolete scrap'' means recovered materials created by the use and
subsequent discard of a product. Examples are discarded tires,
automobiles, and newspapers. This includes recovered materials from
outside the United States which are used in manufacturing operations in
the United States.
''Plant'' means an economic unit of a corporation at a single
physical location where manufacturing is performed.
''Plant report'' means a duly completed report on the form provided
by DOE for plant reporting in accordance with section 375(c) of the Act,
or on such other form as provides information equivalent to that
required to be reported on the form provided by DOE.
''Product'' means an item or grouping of items (separate parts of, or
all of a product line) that is the production of a manufacturing
corporation that is classified within a major energy-consuming industry.
''Production'' means the quantity of a corporation's product output,
throughput, or activity.
''Program'' means the Industrial Energy Conservation Program.
''Prompt industrial scrap'' means recovered materials generated by an
industrial process and used as input to a manufacturing operation other
than the industrial process which generated it. An example is metal
fabrication stamping waste which is used in manufacturing steel. This
includes recovered materials from outside the United States which are
used in manufacturing operations in the United States.
''Recovered materials'' means any of the following energy-saving
recovered materials: aluminum, copper, lead, zinc, iron, steel, paper
and allied paper products, textiles, and rubber, recovered from solid
waste.
''SIC'' means the Standard Industrial Classification system described
in the Office of Management and Budget Standard Industrial
Classification Manual (1972).
''Solid waste'' means any garbage, refuse, sludge from a waste
treatment plant, water supply treatment plant, or air pollution control
facility and other discarded material including solid, liquid,
semisolid, or contained gaseous material resulting from industrial,
commercial, mining, and agricultural operations, and from community
activities; but does not include solid or dissolved materials in
domestic sewage, or solid or dissolved materials in irrigation flows, or
industrial discharges which are point sources subject to permits under
section 402 of the Federal Water Pollution Control Act, as amended (86
Stat. 880), or source, special nuclear or by-product material as defined
by the Atomic Energy Act of 1954, as amended (68 Stat. 923).
''Sponsor'' means a trade association or other person who operates or
intends to operate a reporting program which collects data from one or
more corporations.
''United States'' means each of the several States, the District of
Columbia, the Commonwealth of Puerto Rico, and any territory or
possession of the United States.
''Waste'' means ''solid waste''.
10 CFR 445.3 Management of the program.
The Office of Industrial Programs, Office of the Assistant Secretary
for Conservation and Solar Energy, Department of Energy, will implement
and manage the program.
10 CFR 445.4Handling of information submitted under the program.
(a) Except as otherwise provided in this section, the handling of
information submitted to DOE under this part shall be governed by DOE's
Freedom of Information regulations, 10 CFR Part 1004.
(b) DOE will not disclose any information obtained under this part
which is a trade secret or other matter described in 5 U.S.C 552(b) (4),
disclosure of which may cause significant competitive harm, except to
committees of Congress upon request of such committees; and information
from plant reporting forms made available to DOE for verification
purposes under 445.26(a) shall not be released to the public.
(c) A corporation or sponsor which claims that information provided
to DOE under this part is a trade secret or commercial or financial
information that is privileged or confidential within the meaning of the
Freedom of Information Act (FOIA) exemption in 5 U.S.C. 552(b) (4), and
that disclosure of this information would cause significant corporate
competitive damage, must so inform DOE by providing at the time of the
submission of the information a detailed item-by-item explanation of
whether the information is customarily treated as confidential by the
corporation and the industry, and a detailed explanation of the
anticipated competitive damage which would result from public
disclosure.
(d) Prior to disclosing any information other than in response to a
request made under 10 CFR Part 1004, DOE will grant any person who
submitted information in accordance with paragraph (c) of this section
an opportunity to comment on the proposed disclosure by providing at
least seven days notice of DOE's determination to disclose such
information. For purposes of this paragraph, notice is deemed to be
given when mailed to the person who provided the information.
(e) Any information submitted to DOE by a corporation or sponsor
under this part shall not be considered energy information, as defined
by section 11(e) (1) of the Energy Supply and Environmental Coordination
Act of 1974 (15 U.S.C. 796), for purposes of any verification
examination authorized to be conducted by the Comptroller General under
section 501 of the Act.
10 CFR 445.5Major energy-consuming industries.
(a) For purposes of this part, the following 2-digit SIC code
manufacturing industries are the major energy-consuming industries:
(1) SIC 20 -- Food and kindred products;
(2) SIC 21 -- Tobacco products;
(3) SIC 22 -- Textile mill products;
(4) SIC 23 -- Apparel and other textile products;
(5) SIC 24 -- Lumber and wood products;
(6) SIC 25 -- Furniture and fixtures;
(7) SIC 26 -- Paper and allied products;
(8) SIC 27 -- Printing and publishing;
(9) SIC 28 -- Chemicals and allied products;
(10) SIC 29 -- Petroleum and coal products;
(11) SIC 30 -- Rubber and miscellaneous plastic products;
(12) SIC 31 -- Leather and leather products;
(13) SIC 32 -- Stone, clay and glass products;
(14) SIC 33 -- Primary metal industries;
(15) SIC 34 -- Fabricated metal products;
(16) SIC 35 -- Machinery, except electrical;
(17) SIC 36 -- Electric, electronic equipment;
(18) SIC 37 -- Transportation equipment;
(19) SIC 38 -- Instruments and related products; and
(20) SIC 39 -- Miscellaneous manufacturing industries.
(b) The following major energy-consuming industries are the
industries for which reporting on the use of recovered materials is
required under 445.22(b):
(1) SIC 22 -- Textile mill products;
(2) SIC 26 -- Paper and allied products;
(3) SIC 30 -- (excluding Rubber products SIC 3079, as provided in
445.22(d));
(4) SIC 33 -- Primary metal industries.
10 CFR 445.6Procedures for appeals.
Any appeal of a determination by DOE pursuant to any provision of
this part shall be filed with the Office of Hearings and Appeals, U.S.
Department of Energy, Washington, D.C. 20585, within 30 days of the date
of that determination, pursuant to the procedures for such an appeal
stated in 10 CFR Part 205, Subpart H. A person has not exhausted its
administrative remedies until an appeal has been filed under that
subpart, and an order granting or denying the appeal has been issued.
10 CFR 445.7General information-gathering authority.
In addition to the exercise of authority under Part E of Title III of
the Act, DOE may exercise any authority available under any other
provision of law to obtain such information with respect to industrial
energy efficiency and industrial recovered materials use which it
determines is necessary or appropriate to the attainment of the
objectives of the program. Nothing in this part shall limit the
authority of DOE to require reports of energy information under any
other law.
10 CFR 445.7 Subpart B -- Identification of Corporations
10 CFR 445.11Scope.
This subpart contains the criteria and procedures for the annual
identification of corporations.
10 CFR 445.12Requirement for corporations to file a report on energy
consumption.
(a) Except as provided by paragraph (b) of this section, a
corporation which consumed, as determined according to 445.13, at least
one trillion Btu's of energy in a calendar year within a major
energy-consuming industry shall file a report on that energy consumption
with DOE as provided in 445.14.
(b) Any corporation which was identified by DOE under 445.15 within
a major energy-consuming industry for a calendar year and which
consumed, as determined according to 445.13, at least one trillion
Btu's of energy within the same major energy-consuming industry in the
next calendar year, need not file a new report of its energy consumption
in that industry.
(c) Any corporation which was identified by DOE under 445.15 within
a major energy-consuming industry for a calendar year and which
consumed, as determined according to 445.13, less than one trillion
Btu's of energy within the same major energy-consuming industry in the
next calendar year shall file a report on its energy consumption in that
industry as provided by 445.14. The failure of a corporation described
in this paragraph to file a report may result in the continued
identification of the corporation by DOE under 445.15. (OMB control
number 1904-0036)
(45 FR 10226, Feb. 14, 1980, as amended at 46 FR 63209, Dec. 31,
1981)
10 CFR 445.13 Computation of energy consumption.
(a) For purposes of this subpart, energy consumed is the sum of the
Btu contents of all energy sources consumed by a corporation in a
manufacturing industry within the United States and includes energy used
for --
(1) Direct manufacturing activities;
(2) Thermal self-generation of electricity;
(3) Heating, ventilating and air conditioning of manufacturing
buildings and plant offices, as well as manufacturing services such as
shops, cafeteria, other plant personnel services, and plant chemical and
analytical laboratories;
(4) In-plant transportation, such as lift trucks, conveyors, cranes,
and railroads;
(5) Transportation on a manufacturer's property between mining
operations and manufacturing facilities;
(6) Raw material storage; and
(7) Services for finished product warehouses within a plant fence if
directly related to manufacturing activities.
(b) For purposes of this subpart, energy consumed does not include
(where such use is metered separately or can otherwise be identified) --
(1) All uses of electricity self-generated by thermal means;
(2) Services for corporate and divisional offices not contiguous to a
plant;
(3) Services for basic research not contiguous to a plant;
(4) Services for regional distribution centers;
(5) Fuel for corporate aircraft, salesmen's cars and over-the-highway
trucks;
(6) By-product fuels sold and shipped, or stored for sale;
(7) Facility start-up energy (to point of commerical quality
production);
(8) Waste used as fuel;
(9) Transport of intermediate product to another producer for
finishing within the same two-digit industry;
(10) Fuels received for storage for later disposition; and
(11) Feedstocks.
(c) For purposes of this section, where energy is consumed in
manufacturing in one major energy-consuming industry for purposes of
manufacturing an end product in another major energy-consuming industry,
and such energy is not separately metered or cannot otherwise be
identified, the energy is consumed in the major energy-consuming
industry of the end product.
(d) To avoid double-counting in the case of thermally self-generated
electricity, a corporation's electricity consumption shall be comprised
only of purchased electricity and self-generated hydropower. For
example, where a corporation consumes coal in the thermal generation of
electricity for its own use, the Btu's of the coal, but not the Btu's of
the electricity, shall be included.
(e) Where a corporation can measure or reliably estimate the Btu
content of its energy sources (except electricity), energy consumed must
be determined by reference to those actual or estimated Btu contents.
Where a corporation cannot measure or reliably estimate the Btu contents
of its energy sources, and in the case of electricity, the following
conversion factors (Btu's/energy unit) must be used:
(1) Electricity, 3,412/kwh;
(2) Natural gas, 1,020/cu. ft;
(3) Bituminous coal, 22,565,000/short ton;
(4) Anthracite, 25,400,000/short ton;
(5) Coke, 26,000,000/short ton;
(6) Petroleum coke, 30,120,000/short ton;
(7) Ethane, 73,380/gal;
(8) Propane, 91,620/gal;
(9) LPG, 95,500/gal;
(10) Natural gasoline, 110,000/gal;
(11) Gasoline (including aviation), 124,950/gal;
(12) Special Naphtha, 124,950/gal;
(13) Kerosene, 135,000/gal;
(14) Distillate fuel oil (including diesel), 138,690/gal;
(15) Still gas, 400/cu. ft;
(16) Residual fuel oil, 149,690/gal;
(17) Crude Oil, 138,100/gal; and
(18) Other energy sources (including purchased steam), (to be
determined by calorimetric measurement or engineering standard as
appropriate for consuming corporation).
10 CFR 445.14Report on energy consumption.
(a) The reports required by 445.12 (a) and (c) must include the
following information:
(1) The name, title, address and phone number of the individual
responsible for reporting energy data for the corporation;
(2) The Internal Revenue Service ''Employer Identification Number''
(EIN) for the corporation; and
(3) The following statement, completed as appropriate:
-------------------- consumed at least
(name of corporation)
one trillion Btu's of energy in calendar year ---- in SIC(s) ------
(For only those corporations filing pursuant to 445.12(c) substitute or
add the completed phrase: (and) consumed less than one trillion Btu's
of energy in calendar year ---- in SIC(s) ------ ), as determined
according to 10 CFR 445.13. I certify that all the information in this
report is true and accurate to the best of my knowledge.
---------------- (Signature of Chief Executive Officer or
individual designated by such officer)
------------ Date of Submission
(b) Reports required by 445.12 must be received by DOE by February
28 following the close of the calendar year for which the corporation is
required to report and must be sent to the following address: Office of
Industrial Programs, U.S. Department of Energy, Room 2H-085, 1000
Independence Avenue, SW., Washington, D.C. 20585. The deadline and
address for submission of the report may be changed by DOE by the
publication of a notice of the change in the Federal Register.
(c) Where a corporation controls, is controlled by or is under common
control with another corporation, the corporation required to file the
report is the corporation which controls.
(1) Where a corporation controls a joint venture, that corporation
shall include the energy consumed by the joint venture in its energy
consumption. Where more than one corporation controls a joint venture,
each controlling corporation shall include in its energy consumption an
equal percentage of the energy consumed by the joint venture during the
calendar year for which the report is filed.
(2) Where a corporation is under common control, each controlling
corporation shall include in its energy consumption an equal percentage
of the energy consumer by the corporation under common control.
(3) A corporation shall supply to DOE, upon request, any material
which DOE may require to verify control.
(d) All data used by a corporation in determining its energy
consumption must be retained by the corporation for at least five years.
(OMB control number 1904-0036)
(45 FR 10226, Feb. 14, 1980, as amended at 46 FR 63209, Dec. 31,
1981)
10 CFR 445.15Identification of corporations by DOE.
(a) Annually, after reviewing the information filed pursuant to
445.12, and any other information on corporate energy consumption
available to it, DOE will identify each corporation which consumed at
least one trillion Btu's of energy within a major energy-consuming
industry in the previous year, pursuant to the procedures set forth in
paragraph (b) of this section.
(b) DOE will publish in the Federal Register a list identifying
corporations. If this list must be supplemented, DOE may publish an
updated list or may notify a corporation of its identification by
certified mail.
10 CFR 445.16Request for modification.
(a) A corporation may file a request with DOE to modify its
identification pursuant to 445.15, on the grounds of clerical or
technical error.
(b) Notwithstanding the provisions of 445.6, the request must be
filed with DOE within 30 days of the identification of the corporation,
at the Office of Industrial Programs, U.S. Department of Energy, Room
2H-085, 1000 Independence Avenue, SW., Washington, D.C. 20585, and
marked ''Industrial Energy Conservation Program: Request for
Modification.'' DOE may change the address for the submission of such
requests by the publication of a notice of such change in the Federal
Register.
(c) 10 CFR 205.131 and 205.134 provide the format for such a request.
(d) The request must adequately explain how the corporation erred in
its report of energy consumption or how DOE erred in identifying the
corporation.
(e) DOE shall respond to the request by granting or denying it within
20 days of the receipt of the request by the Office of Industrial
Programs.
10 CFR 445.16 Subpart C -- Reporting Requirements
10 CFR 445.21Plant reporting requirements.
(a) An identified corporation shall have at its headquarters in the
United States a separate report on the progress each plant of the
identified coporation has made during the reporting period in improving
its energy efficiency in each major energy-consuming industry within
which the corporation is identified.
(b) The reports required under paragraph (a) of this section must be
prepared on a plant reporting form which has been --
(1) Published and made available for this purpose by DOE, or
(2) Developed and used by the identified corporation.
(c) The reports required under paragraph (a) of this section must be
completed in a manner sufficiently timely to permit the data from such
reports to be aggregated in the corporation's report required by
445.22. (OMB control number 1904-0003)
(45 FR 10226, Feb. 14, 1980, as amended at 46 FR 63209, Dec. 31,
1981)
10 CFR 445.22Corporate reporting requirements.
(a) The chief executive officer (or individual designated by such
officer) of each identified corporation shall report by the date
specified in 445.25 on the progress the corporation has made in
improving its energy efficiency in each major energy-consuming industry
within which the corporation is identified, including data aggregated
from plant reports required under 445.21.
(b) The chief executive officer (or individual designated by such
officer) of each corporation identified within any of SIC(s) 22, 26, 30
or 33 also shall report by the date specified in 445.25 on the progress
the corporation has made to increase its utilization of recovered
materials in each of these four industries within which the corporation
is identified. (OMB control number 1904-0003)
(c) The information required under paragraphs (a) and (b) of this
section must be submitted by SIC code --
(1) To DOE on a corporate reporting form which has been published and
made available for this purpose by DOE, or
(2) For an exempt corporation, to a sponsor of an adequate reporting
program on a corporate reporting form --
(i) Described in paragraph (c)(1) of this section, or
(ii) Which provides information equivalent to that required to be
reported on the form described in paragraph (c)(1) of this section,
accompanied by the certification required by the DOE form.
(d) Notwithstanding the requirements of paragraph (b) of this
section, the chief executive officer of a corporation identified within
SIC 30, all of whose manufacturing operations are within SIC 3079,
(miscellaneous plastics products), shall not be required to report on
the progress the corporation has made to increase its utilization of
recovered materials in SIC 30.
(45 FR 10226, Feb. 14, 1980, as amended at 46 FR 63209, Dec. 31,
1981)
10 CFR 445.23Sponsor reporting requirements.
(a) The chief executive officer (or individual designated by such
officer) of each sponsor of an adequate reporting program, as determined
pursuant to 445.37, shall report by the date specified in 445.25 to
DOE, as follows:
(1) For each major energy-consuming industry for which the sponsor
has an adequate reporting program, on the progress the exempt
corporations which participate in the adequate reporting program have
made in improving their energy efficiency in that major energy-consuming
industry, and
(2) For each of SIC(s) 22, 26, 30 and 33 for which the sponsor has an
adequate reporting program, on the progress the exempt corporations
which are required to report under 445.22(b), and which participate in
the adequate reporting program, have made to increase their utilization
of recovered materials.
(b) The information required under paragraph (a) of this section must
be submitted to DOE on a sponsor reporting form which has been --
(1) Published and made available for this purpose by DOE, or
(2) Previously supplied by the sponsor to DOE in its submission under
445.35, accompanied by the certification required by the DOE form.
(c) Notwithstanding paragraph (a) of this section, a sponsor, in
preparing its report, may aggregate data from reports filed with it by
exempt corporations under 445.22(c)(2) with data from reports by
nonidentified corporations, only to the extent that the reports from the
nonidentified corporations meet the requirements of 445.22.
10 CFR 445.24Reporting period.
The reporting period for each report required by this subpart is the
calendar year for which each corporation covered by the report is an
identified corporation.
10 CFR 445.25Reporting date and address.
All reports submitted to DOE under this subpart must be received by
DOE by the June 1 following the end of the reporting period and must be
sent to the address provided in the instructions to the appropriate DOE
form. This deadline and address may be changed by DOE by timely
notification of such change to identified corporations and sponsors of
adequate reporting programs.
10 CFR 445.26Data retention.
(a) All forms submitted to an identifed corporation under 445.21 and
all other data used by that corporation in preparing reports under
445.22, must be retained by the corporation for at least five years from
the filing date and must be made available to DOE promptly upon request
for verification. (OMB control number 1904-0003)
(b) All reports submitted by an exempt corporation to a sponsor under
445.22(c)(2) must be retained by the exempt corporations for at least
five years from the filing date. Upon request for verification the
reports must be made promptly available to DOE by the corporation at its
headquarters. (OMB control number 1904-0003)
(c) All data, other than reports described in paragraph (b) of this
section, used by a sponsor in preparing reports submitted to DOE under
445.23 must be retained by the sponsor for at least five years from the
filing date and must be made available to DOE promptly upon request for
verification. (OMB control number 1904-0003)
(45 FR 10226, Feb. 14, 1980, as amended at 46 FR 63209, Dec. 31,
1981)
10 CFR 445.26 Subpart D -- Exemption Criteria and Procedures
10 CFR 445.31Scope.
This subpart contains the criteria and procedures for the exemption
of identified corporations from the requirement of filing corporate
reporting forms directly with DOE. These exemptions are effective for
one year and renewable annually.
10 CFR 445.32Criteria for the exemption of corporations.
In order for an identified corporation to be exempt from filing the
corporate report required by 445.22 directly with DOE, pursuant to
445.37, the corporation must --
(a) File a timely and complete request to be an exempt corporation
pursuant to 445.34;
(b) Participate in an adequate reporting program; and
(c) If it was previously determined to be an exempt corporation, have
met the requirements of 445.22(a), (b) and (c)(2) for the period it has
been exempt.
10 CFR 445.33Criteria for adequate reporting programs.
In order for a reporting program of a sponsor to be determined an
adequate reporting program for a major energy-consuming industry,
pursuant to 445.37, the sponsor must --
(a) File a timely and complete request to be a sponsor with an
adequate reporting program, pursuant to 445.35;
(b) If its program previously was determined to be adequate, have met
the requirements of 445.23 and have provided each identified
corporation which participated in the reporting program with (1)
specific written guidance for preparing and submitting the corporate
report under 445.22(c)(2) to the sponsor, and (2) a copy of the report
which the sponsor filed with DOE under 445.23.
10 CFR 445.34Request to be an exempt corporation.
(a) An identified corporation may seek an exemption by submitting a
request to DOE describing its participation in an adequate reporting
program.
(b) This request must include the following information:
(1) The name and address of the identified corporation,
(2) The name and telephone number of the person responsible for
preparing the report required by 445.22 on behalf of the corporation,
(3) The name, address, and telephone number of the sponsor in whose
reporting program the corporation has arranged to participate, together
with the enumeration of all major energy-consuming industries for which
the corporation will submit reports to the sponsor;
(4) A statement that it will meet the requirements of 445.22(a), (b)
and (c)(2) and 445.26 (a) and (b);
(5) A statement of how the corporation will report to the sponsor,
either --
(i) On the DOE corporate reporting form, or
(ii) On some other reporting form, designated by the corporation;
and
(6) A certification by the chief executive officer (or other
individual designated by such officer) of the corporation as follows:
I certify that all information provided in this request is true and
accurate to the best of my knowledge.
(c) Notwithstanding the requirements of paragraph (a) of this
section, any corporation which was exempt under 445.37 for a calendar
year and for which all information required by paragraph (b) of this
section is unchanged, need not refile a request for the next year. (OMB
control number 1904-0036)
(45 FR 10226, Feb. 14, 1980, as amended at 46 FR 63209, Dec. 31,
1981)
10 CFR 445.35Request to be a sponsor with adequate reporting programs.
(a) A sponsor may seek to have its reporting program determined to be
adequate by submitting a request to DOE describing its reporting
program.
(b) This request must include the following information:
(1) The name and address of the sponsor;
(2) The name and telephone number of the person responsible for
preparing the report required by 445.23 on behalf of the sponsor;
(3) A listing of each major energy-consuming industry covered by its
reporting programs;
(4) A statement that the sponsor will meet the requirements of
445.23 and 445.26(c);
(5) A statement of how the sponsor will submit the reports required
by 445.23 to DOE; either --
(i) On the DOE sponsor reporting form; or
(ii) On some other reporting form, designated by the sponsor;
(6) If the sponsor designates some other form, a copy of the form,
together with an index referencing each and every item on the DOE form
to the corresponding identical item on the form submitted;
(7) A statement that the sponsor will provide each identified
corporation which participates in the reporting program with --
(i) Specific written guidance for preparing and submitting the
corporate report under 445.22(c)(2) to the sponsor; and
(ii) A copy of the report which the sponsor files with DOE under
445.23; and
(8) A certification signed by the chief executive officer (or other
individual designated by such officer) as follows:
I certify that all information provided in this request is true and
accurate to the best of my knowledge.
(c) Notwithstanding the requirements of paragraph (a) of this
section, a sponsor which was determined to have an adequate reporting
program for a calendar year and for which all information required by
paragraph (b) of this section are unchanged, need not refile a request
for the next year, if its chief executive officer (or other individual
designated by such officer) submits a certification that all items in
the request filed the previous year are still true and accurate to the
best of his knowledge. (OMB control number 1904-0036)
(45 FR 10226, Feb. 14, 1980, as amended at 46 FR 63209, Dec. 31,
1981)
10 CFR 445.36Filing deadline and address.
The requests made pursuant to 445.34 and 445.35 must be received by
DOE by February 28 of each year and must be sent to the following
address: Office of Industrial Programs, U.S. Department of Energy, Room
2H-085, 1000 Independence Avenue, S.W., Washington, D.C. 10585. DOE may
change the deadline and address for submission of such requests by
publishing a notice of such change in the Federal Register.
10 CFR 445.37Determination of exempt corporations and adequate
reporting programs.
(a) Annually, in accordance with the criteria set forth in 445.32
and 445.33, DOE will exempt corporations and determine the adequacy of
the reporting programs in which they participate, pursuant to the
procedures set forth in paragraph (b) of this section.
(b) DOE will publish in the Federal Register for public comment its
proposal to exempt corporations and to determine as adequate the
reporting programs in which they participate. After considering
comments from interested persons, DOE will exempt corporations and
determine the adequacy of the reporting programs in which they
participate by publishing a list of corporations and sponsors of
programs in the Federal Register.
10 CFR 445.38Failure to report.
(a) If a sponsor of an adequate reporting program fails to submit the
report required by 445.23 by the deadline established in 445.25, DOE
may, by notice to the sponsor and to the identified corporations which
participate in its program, revoke its determination that the sponsor
has an adequate reporting program. Within 30 days after the notice is
mailed, each such corporation must submit a corporate report directly to
DOE as provided in 445.22(c)(1).
(b) If a sponsor determines that an exempt corporation has failed to
file a timely corporate report as required by 445.22(c)(2), it should
submit a report as required by 445.23 only on those corporations which
filed the corporate report with the sponsor. If an exempt corporation
does not file the report required by 445.22 with a sponsor, it must
file the report required by 445.22 directly with DOE.
10 CFR 445.38 Subpart E -- Voluntary Energy Efficiency Improvement Targets and Voluntary Recovered Materials Utilization Targets
10 CFR 445.41Purpose and scope.
(a) This subpart contains the energy efficiency improvement targets
and the recovered materials utilization targets established by DOE
pursuant to section 374 and 374A of the Act.
(b) No liability shall attach to, and no civil or criminal penalties
shall be imposed on, any corporation for any failure to meet any energy
efficiency improvement target or any recovered materials utilization
target contained in this subpart.
10 CFR 445.42Energy efficiency improvement targets.
(a) Each energy efficiency improvement target is a percentage figure
which represents, for a major energy-consuming industry, the percentage
reduction in energy consumption per unit of production which DOE has
determined that such industry can achieve between calendar year 1972 and
January 1, 1980, as established in 42 FR 29642, June 9, 1977, ''Final
Industrial Energy Efficiency Improvement Targets.'' Each target is set
at a level which represents the maximum feasible improvement in energy
efficiency that each industry can achieve.
(b) The energy efficiency improvement targets are set forth in Table
I.
10 CFR 445.43Modification of energy efficiency improvement targets.
An energy efficiency improvement target in 445.42 may be modified at
any time if DOE --
(a) Determines that such target cannot reasonably be attained or
could reasonably be made more stringent, and
(b) Publishes such determination in the Federal Register together
with a statement of the basis and justification for the modification
after providing an opportunity for public comment on any proposed
modification.
10 CFR 445.44Recovered materials utilization targets.
(a) Recovered materials utilization targets are established for each
of the following industries -- textile mill products, paper and allied
products, metals and metal products, and rubber.
(b) Each recovered materials utilization target is a percentage
figure which represents, for each industry subdivision listed in
paragraph (c) of this section, the amount of recovered materials from
prompt industrial and obsolete scrap which DOE has determined can be
used per unit of production by calendar year 1987. Each target is set
at a level which represents the maximum feasible increase in the
utilization of recovered materials which the industry can achieve
progressively by January 1, 1987.
(c) The recovered materials utilization targets are set forth in
Tables II, III, IV, and V.
10 CFR 445.45 Modification of recovered materials utilization targets.
Any recovered materials utilization target in 445.44 may be modified
if DOE --
(a) Determines that such target cannot reasonably be attained, or
that the target should require greater use of recovered materials, and
(b) Publishes such determination in the Federal Register together
with a basis and justification for the modification, after providing an
opportunity for public comment on the proposed modification.
10 CFR 445.45 Pt. 450
10 CFR 445.45 PART 450 -- ENERGY MEASURES AND ENERGY AUDITS
10 CFR 445.45 Subpart A -- General Provisions
Sec.
450.1 Purpose and scope.
450.2 Uses of energy audit procedures.
450.3 Definitions.
450.4 Qualifying conditions.
10 CFR 445.45 Subpart B -- Information Audits
450.10 Purpose and scope.
450.11 Classes of, and requirements for, information audits.
450.12 Contents of information audits.
450.13 Auditors.
450.14 Cost of information audits.
10 CFR 445.45 Subpart C -- Verification Audits
450.20 Purpose and scope.
450.21 Contents of verification audits.
450.22 Auditors.
450.23 Cost of verification audits.
10 CFR 445.45 Subpart D -- Energy Measures
450.30 Purpose and scope.
450.31 Energy conservation measures.
450.32 Requirements and limitations for energy conservation measures.
450.33 Renewable-resource energy measures.
450.34 Requirements for renewable-resource energy measures.
450.35 Climate zones.
Appendix A to Subpart D -- Heating zones for energy measures
Appendix B to Subpart D -- Cooling zones for energy measures
10 CFR 445.45 Subpart E -- Preliminary Energy Audits and Energy Audits
450.40 Purpose and scope.
450.41 Definitions.
450.42 Contents of a preliminary energy audit.
450.43 Contents of an energy audit.
450.44 Auditor qualifications.
450.45 Audit reports.
450.46 Cost of energy audits.
Appendix A to Part 450 -- Energy Price Projections
Appendix B to Part 450 -- Discount Factors
Appendix C to Part 450 -- Factors to Adjust Future Principal and
Interest Payments to Base Year Equivalent Values
Authority: Part C of Title III, Energy Policy and Conservation Act,
(42 U.S.C. 6321 et seq.), as amended by Part B of Title IV, Energy
Conservation and Production Act, and Parts G and H of Title III, Energy
Policy and Conservation Act, as added by Title III of the National
Energy Conservation Policy Act, 92 Stat. 3206 et seq.; Department of
Energy Organization Act, (42 U.S.C. 7101 et seq.)
Source: 42 FR 33162, June 29, 1977, unless otherwise noted.
10 CFR 445.45 Subpart A -- General Provisions
10 CFR 450.1Purpose and scope.
(a) This part designates energy measures and the types of, and
requirements for, energy audits as required by the Department of Energy,
pursuant to Section 432(d) of the Energy Conservation and Production
Act, Pub. L. 94-385, 90 Stat. 1125 et seq., which adds Section 365(e)
(1) and (2), 42 U.S.C. 6325(e) (1) and (2), to the Energy Policy and
Conservation Act, 42 U.S.C. 6201 et seq.
(b) This part also contains the projections of future energy prices
which shall be used in calculating the changes in energy costs which
will result from installation of a particular modification in a building
or industrial plant, and includes the criteria for determining whether
the installation of a particular modication meets certain requirements
of the Act for designation as an energy measure.
(c) This part also provides the requirements for the conduct of
preliminary energy audits and energy audits in accordance with Section
393 and Section 400 C of the Energy Policy and Conservation Act, Pub.
L. 94-163, 42 U.S.C. 6321, as amended by Title III of the National
Energy Conservation Policy Act, Pub. L. 95-619, 92 Stat. 3206 et seq.
(42 FR 37800, July 25, 1977, as amended at 44 FR 19350, Apr. 2, 1979)
10 CFR 450.2Uses of energy audit procedures.
The requirements of this part shall be used --
(a) To establish minimum requirements for the type of energy audit to
be carried out under a supplemental plan;
(b) To provide a process to measure the energy and cost savings to be
derived from the installation or implementation of an energy measure;
and
(c) To provide a process to identify a modification as an energy
measure for purposes of the Act.
(d) To establish minimum requirements for the preliminary energy
audits and energy audits to be carried out under the program of
financial assistance for schools and hospitals and the program of
financial assistance for units of local government and public care
institutions.
(42 FR 33162, June 29, 1977, as amended at 44 FR 19350, Apr. 2, 1979)
10 CFR 450.3Definitions.
As used in this part --
''Act'' means the Energy Conservation and Production Act, Pub. L.
94-385, 42 U.S.C. 6325.
''ANSI Standard'' means a standard prescribed by the American
National Standards Institute.
''Appliance'' means an energy consuming article or device designed
for household use, the primary purpose of which is labor saving or
personal convenience and which, although connected to public utilities
servicing a building, is not attached to the building in such a way that
it would be considered part of the building or building system; for
example, room air-conditioners, room heat pumps, room heaters,
refrigerators, refrigerator-freezers, clothes washers and dryers,
dishwashers, kitchen ranges and ovens, and television sets. Energy
consuming articles or devices not classified as an appliance and
considered part of a building or building system include, but are not
limited to, water heaters, central heat pumps, central air-conditioners,
and central heating units.
''Approved'' means, with respect to an energy measure, any
modification which is included on the list of energy measures published
by DOE pursuant to section 365(e)(1), 42 U.S.C. 6325(e)(1), of the
Energy Policy and Conservation Act.
''ASTM Standard'' means a standard prescribed by the American Society
for Testing and Materials.
''Attributed Life'' means, with respect to an energy conservation
measure, the time period which is equal to either the useful life or 15
years, whichever is less or, with respect to a renewable-resource energy
measure, the time period which is equal to either the useful life or 25
years, whichever is less.
''Auditor'' means any person who conducts an energy audit and
certifies it to be in conformance with this regulation.
''British Thermal Unit'' means the amount of heat required to raise
the temperature of one pound of water from 59.5 to 60.5 degrees
Fahrenheit at one atmosphere of pressure.
''Btu'' means British thermal unit or units.
''Building'' means any structure which includes provisions for a
heating or cooling system, or both, or a hot water system, and which was
constructed prior to August 14, 1976.
''Building Envelope'' means all external building surfaces, such as
walls, doors, windows, roof, and floors in contact with the ground,
which are affected by weather.
''Climatic Zone'' means a geographical area of the United States
designated by DOE.
''Compressor Hours'' means the average number of hours which an air
conditioning compressor must operate to provide the cooling needed for
space conditioning for a cooling zone.
''Cooling degree days'' means the annual sum of the number of
Fahrenheit degrees of each day's mean temperature above 65 for a given
locality.
''Cooling Zone'' means a climatic zone based on cooling degree days
or compressor hours.
''Depletable Energy Resource'' means a fossil fuel or nuclear fission
fuel.
''Distillate Fuel'' means those light and middle fuel oil derivatives
from petroleum, such as kerosene, home heating oil, range oil, stove
oil, diesel fuel, kerosene-type jet fuel, including Numbers 1, 2, 3, and
4 fuel oils.
''DOE'' means the Department of Energy.
''Dual-Purpose Power Plant'' means an equipment configuration which
produces both electricity and useful thermal energy and which consumes,
exclusive of the fuel required to produce the useful thermal energy,
less than 7,500 Btu of fuel per kilowatt-hour of electricity produced.
''Dwelling Unit'' means a house, including a stationary mobile home,
an apartment, a group of rooms, or a single room occupied as separate
living quarters.
''Energy Audit'' means a process, carried out in accordance with this
part, which identifies and specifies the energy and cost savings which
are likely to be realized through the purchase and installation of an
energy measure.
''Energy Conservation Measure'' means a modification which has been
determined by means of an energy audit or by DOE, by rule, to be likely
to improve the efficiency of energy use and to reduce energy costs in an
amount sufficient to enable a person to recover the total cost of
purchasing and installing such measure, without regard to any tax
benefit or Federal financial assistance applicable thereto, within the
period of --
(1) The useful life of the modification involved; or
(2) Fifteen years after the purchase and installation of the
modification, whichever is less.
The term does not include the purchase or installation of any
appliance, any conversion from one fuel or source of energy to another
which DOE, by rule, determines is ineligible on the basis that such type
of conversion is inconsistent with national policy with respect to
energy conservation or reduction of imports of fuels, or any measure or
type of measure which does not have as its primary purpose an
improvement in efficiency of energy use.
''Energy Measure'' means an energy conservation measure or a
renewable-resource energy measure.
''Federal Region'' means one of the 10 standard regions as described
in OMB Circular A-105, Standard Federal Regions.
''Heating degree days'' means the annual sum of the number of
Fahrenheit degrees of each day's mean temperature below 65 for a given
locality.
''Heating Zone'' means a climatic zone based on heating degree days.
''HVAC'' means heating, ventilating and air conditioning.
''IEEE Standard'' means a standard prescribed by the Institute of
Electrical and Electronic Engineers.
''Industrial Plant'' 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 and which was constructed prior to
August 14, 1976.
''Industrial Process'' means an action or series of actions in
connection with, or part of, a process or system contributing to the
production or output of an industrial plant.
''Liquefied Petroleum Gas'' means propane, butane, propane/butane
mixes, ethylene and ethane.
''LPG'' means liquefied petroleum gas.
''Modification'' means a change which can be purchased and installed
in a building or industrial plant, and which can result in energy and
cost savings.
''Nondepletable Energy Resource'' means a type of energy resource
other than a depletable energy resource.
''Regional Representative'' means a Regional Representative of the
Department of Energy.
''Renewable-Resource Energy Measure'' means a modification which has
been determined by means of an energy audit or by DOE, by rule, to --
(1) Involve changing, in whole or in part, the fuel or source of
energy used to meet the requirements of such building or plant from a
depletable source of energy to a nondepletable source of energy; and
(2) Be likely to reduce energy costs in an amount not less than the
total cost of purchasing and installing such measure, without regard to
any tax benefit or Federal financial assistance applicable thereto,
within the period of --
(i) The useful life of the modification involved, or
(ii) Twenty-five years after purchase and installation of the
modification, whichever is less. The term does not include the purchase
or installation of any appliance.
''Residual Fuel'' means Numbers 5 and 6 fuel oils, heavy diesel, Navy
diesel, Bunker C and all other fuel oils which have a fifty percent
boiling point over 700 F in the American Society for Testing Materials
D-86 standard distillation test, as reapproved in 1972.
''R-Value'' means a measurement of the ability of insulation to
resist the flow of heat, expressed in English units at the mean
temperature of the insulation under design conditions.
''Secretary'' means the Secretary of the Department of Energy.
''Supplemental Plan'' means a supplemental State energy conservation
plan which is eligible for financial assistance under Part 420,
Subchapter E, Chapter II of Title 10, Code of Federal Regulations.
''Useful Life'' means that period of time for which a modification
used under specified conditions is able to fulfill its intended
function, and which does not exceed the period of remaining use of the
building or that element of the industrial plant which is being
modified.
(42 FR 33162, June 29, 1977, as amended at 42 FR 37800, July 25,
1977; 44 FR 19350, Apr. 2, 1979)
10 CFR 450.4Qualifying conditions.
(a) The primary purpose of a modification shall be an improvement in
energy use efficiency only if the cost of the purchase and installation
of the modification will be recovered, during its attributed life, by
its projected energy cost savings, and results in an increase, with the
use of the modification, in the energy efficiency index computed as
required by 450.21(b)(6).
(b) A modification shall result in an ineligible conversion if its
implementation would result in an increase, expressed in Btu, at the
building or industrial plant, in the consumption of petroleum products,
natural gas, or a combination of the two.
(c) An increase in the consumption of petroleum products at a
building or industrial plant shall not be an ineligible conversion, as
provided by paragraph (b) of this section, if the increase will result
from the installation of dual-purpose power plant equipment and DOE
determines the modification would produce an off-setting reduction
elsewhere in the consumption of petroleum products, natural gas, or a
combination of the two.
(d) Projected prices for electricty, natural gas, distillate,
residual fuel, LPG, and coal shall be derived from either --
(1) The projected energy prices set forth in Appendix A, Tables 1-20;
or
(2) The following adjustment formulas --
(i) For petroleum products, coal, and natural gas --
PAt=PRt^((1985^t) (PRb^PAb)/(1985 -- b)), for t 1985
PAt=PRt, for t 1985; and
(ii) for electricity:
PAt=PR t.PAb/PRb, for all years;
(iii) where:
PAt=projected fuel price for future year t;
PAb=fuel price actually paid in base year b;
PRb=regional fuel price for base year as set forth in Appendix A.
PRt=projected regional fuel for future year t as set forth in
Appendix A;
t=future year for which fuel price is being projected;
b=base year used in current DOE projection of fuel price, as shown in
Appendix A.
10 CFR 450.4 Subpart B -- Information Audits
10 CFR 450.10Purpose and scope.
This subpart establishes the classes of, and requirements for, the
conduct of information audits, the qualifications of persons conducting
Class A information audits and the allowable cost of information audits.
Provisions for encouraging and carrying out information audits are
required in a supplemental State energy conservation plan for which
financial assistance is provided under Part 420, Subpart E, Chapter II
of Title 10, Code of Federal Regulations.
10 CFR 450.11Classes of, and requirements for, information audits.
(a) A Class A information audit shall consist of --
(1) An on-site visit at the building or industrial plant by an
auditor who has qualifications considered appropriate by a State; and
(2) An evaluation by an auditor of the building or industrial plant's
energy comsumption and energy systems, consisting of --
(i) An analysis of the energy and cost savings likely to result from
the purchase and installation of one or more modifications selected by a
State, or
(ii) General recommendations and a workbook, manual, or other
instructional material enabling an owner, operator, or occupant of a
building or industrial plant to calculate the energy and cost savings
resulting from the purchase and installation of one or more
modifications selected by a State.
(b) A Class B information audit shall consist of --
(1) A completed questionnaire, containing information provided by an
owner, operator, or occupant of a building or industrial plant, which
has been developed and distributed by a State; and
(2) An evaluation which analyzes the information obtained pursuant to
paragraph (b)(1) of this section to identify the energy and cost savings
likely to result from not less than two modifications selected by a
State, taking into account such factors as heating and cooling degree
days, fuel cost, and other data considered appropriate by a State, which
evaluation shall be sent to the person who provided the information.
(c) A Class C information audit shall consist of --
(1) A workbook provided by a State, which will enable the owner,
operator, or occupant of the building or industrial plant to identify
the energy and cost savings for each of not less than four modifications
selected by a State, which calculation shall take into account factors
such as heating and cooling degree days, fuel prices, and other data
considered appropriate by a State; and
(2) Pamphlets, books, brochures, or similar data, provided by a
State, to be used in conjunction with the workbook referred to in
paragraph (c)(1) of this section, regarding the purchase and
installation of the modifications in the type of building or industrial
plant for which the workbook is to be used.
10 CFR 450.12Contents of information audits.
(a) All three classes of information audits shall include an energy
consumption description containing the following --
(1) For a building --
(i) Actual energy consumption by type of fuel by month for the
preceding 12 months, except that where actual energy consumption data
are not available, estimates of actual energy consumption and an
explanation of the derivation of the estimates;
(ii) Cost of energy by type of fuel for the preceding 12 months;
(iii) Building profile, including description of --
(A) Location, climatic context, and immediate site conditions;
(B) Configuration, envelope, construction, and condition; and
(C) Heating, ventilating air conditioning, hot water and lighting
systems;
(2) For an industrial plant --
(i) Actual energy consumption for both the industrial plant's
building operations and its industrial processes, by type of fuel by
month for the preceding 12 months, except that where actual energy
consumption data are not available, estimates of actual energy
consumption and an explanation of the derivation of the estimates;
(ii) Cost of energy by type of fuel for the preceding 12 months;
(iii) Description of the industrial plant's building characteristics,
providing the information required by paragraph (a) (1) (iii) of this
section;
(iv) Profile of the industrial plant's industrial processes,
including a description of --
(A) The process layout and conditions within which it operates;
(B) material storage, handling, and processing; and
(C) All mechanical, electrical, hydraulic, and pneumatic systems,
including those for waste handling; and
(v) Energy consumption of each process system by type of fuel.
(b) Each information audit shall identify and describe a modification
sufficiently to enable the determination of the effects of the
modification or combination of modifications on a building or industrial
plant's energy consumption.
(c) Each information audit shall --
(1) Identify and describe, by the procedures set forth in 450.21 or
other appropriate procedures as prescribed by a State, subject to
approval by DOE in the review of a State's supplemental plan, the total
costs of purchasing and installing at least one modification, and the
related energy and cost savings; and
(2) State whether or not projected energy cost savings attributable
to the modification(s) are sufficient to recover the total cost of
purchasing and installing the modification(s) within the attributed life
of the modification(s).
(d) An information audit of an individual dwelling unit need not meet
the requirements of paragraphs (a), (b), or (c) of this section if --
(1) The information audit uses the Project Conserve Questionnaire and
related computer program, as revised from time to time by DOE, which DOE
will make available to a State upon request;
(2) The information audit uses the Home Energy Savers Workbook (DOE
Publication DOE/D-77/117), as amended by DOE from time to time; or
(3) A State develops an audit procedure which is determined by the
Regional Administrator to meet or exceed the requirements of the
material referred to in paragraphs (d) (1) and (2) of this section.
10 CFR 450.13Auditors.
Subject to the approval of the Regional Administrator, a State shall
establish in its supplemental plan procedures for --
(a) Ascertaining that a person conducting a Class A information audit
is qualified;
(b) Assuring full disclosure by an auditor of his or her financial
interests relating to an audit or any modifications assessed by the
audit; and
(c) Providing certification by the auditor to assure that each audit
has been conducted in accordance with this regulation.
10 CFR 450.14Cost of information audits.
(a) An information audit conducted under a supplemental plan shall --
(1) For an individual dwelling unit, be conducted at no direct cost
to the occupants of that dwelling unit; and
(2) For any building or industrial plant, not referred to in
paragraph (a) of this section, be conducted at a cost which is less than
--
(i) 10 percent of the building's or industrial plant's total energy
costs for the preceding 12 months, when such energy costs were less than
$40,000;
(ii) $4,000 or 5 percent of the building's or industrial plant's
total energy costs for the preceding 12 months, whichever is greater,
when such energy costs were equal to or greater than $40,000 but less
than $1,000,000; or
(iii) $50,000 or 2.5 percent of the building's or industrial plant's
total energy cost for the preceding 12 months, whichever is greater,
when such energy costs were equal to or greater than $1,000,000.
(b) Subject to DOE review and approval, a State may establish
procedures to permit information audit costs to exceed the limitations
set forth in paragraph (a)(2) of this section in those cases where the
State finds that buildings or industrial plants exhibit unique or
unusually complex characteristics relating to energy use.
10 CFR 450.14 Subpart C -- Verification Audits
10 CFR 450.20Purpose and scope.
This subpart prescribes guidelines for building and industrial
process verification audits, which provide a detailed analysis of the
changes in energy use and costs likely to result from the purchase and
installation of an energy measure.
10 CFR 450.21Contents of verification audits.
(a) A verification audit shall contain an analysis of the actual or
estimated energy consumption of the one or more building systems or
industrial processes to be affected by the purchase and installation of
a modification. The actual energy consumption of the building or
industrial process shall be computed by type of fuel by month for a
consecutive 12 months period; if available. Information in a
verification audit shall include --
(1) Location, and immediate site conditions;
(2) Operating characteristics, which shall include --
(i) For a building, a description of the building configuration,
construction and condition, and daily hours of use; and
(ii) For an industrial process, a description of the plant, process,
and system layout, and operating conditions; and
(3) Actual energy consumption of the building or industrial process,
by type of fuel per month, for the representative year selected, except
that where actual energy consumption data are not available, estimates
of actual energy consumption and an explanation of the derivation of the
estimates.
(b) A verification audit shall identify and describe --
(1) The modification which is the subject of the audit, including
when appropriate --
(i) The model and manufacturer;
(ii) Method of application to the building or industrial process;
(iii) Performance specifications, which may include engineering
drawings;
(iv) Useful life; and
(v) For a modification under consideration as a renewable-resource
energy measure, a description of the process by which the modification
will convert one or more nondepletable energy resources to useful
energy;
(2) All other modifications and energy conservation actions,
including noncapital and operational changes such as reduced thermostat
settings and changes in maintenance procedures and hours of operation,
that are anticipated to be implemented by an owner, operator, or
occupant of the building or industrial plant;
(3) All alternative modifications and energy conservation actions,
including noncapital and operational changes, considered but rejected in
favor of those modifications identified in paragraphs (b) (1) and (2) of
this section and a brief explanation for the rejection;
(4) Future energy consumption for each year of the attributed life of
the modification, by type of energy, in terms of both physical units,
such as kilowatt-hours of electricity or barrels of distillate fuel, and
equivalent Btu of energy resources consumed using the conversion factors
specified in paragraph (b)(5) of this section under each of the
following conditions --
(i) Without implementation of the modification identified in
paragraph (b)(1) of this section, but including implementation of all of
the modifications and energy conservation actions identified in
paragraph (b)(2) of this section, if any; and
(ii) With implementation both of the modification identified in
paragraph (b)(1) of this section and of all of the modifications and
energy conservation actions identified in paragraph (b)(2) of this
section, if any;
(5) For the purposes of paragraph (b)(4) of this section, the
conversion factors set forth in paragraph (a)(11) of 450.42 shall be
used.
(6) Whether or not the energy efficiency index, for a modification
under evaluation as an energy conservation measure, computed with
respect to paragraph (b)(4)(ii) of this section exceeds the energy
efficiency index computed for paragraph (b)(4)(i) of this section, where
the energy efficiency index is computed --
(i) For a building, by dividing the size of the building, expressed
in terms of net square feet, by the number of Btu used in its operation;
or
(ii) For an industrial process, by dividing the amount of production,
consistently expressed in units, weight, or volume, achieved by the
industrial process being modified, by the number of Btu used in its
operation; and
(7) Whether the number of Btu of depletable energy resources,
estimated to be consumed by a modification under evaluation as a
renewable-resource energy measure, computed with respect to paragraph
(b)(4)(ii) of this section is less than the number of Btu of depletable
energy resources estimated to be consumed computed for paragraph
(b)(4)(i) of this section.
(c) Costs and savings shall be presented in terms of constant dollars
using the same base year as in the most current DOE projection of fuel
prices set forth in Appendix A.
(d) A verification audit shall contain a finding that a modification
will reduce energy costs sufficiently to recover purchase and
installation costs within the attributed life of the modification if the
net present value is either zero or a positive value. The net present
value of implementing the modification shall be computed by the
subcontracting the present value of purchase and installation costs
calculated in accordance with paragraph (d)(1) of this section from the
present value of energy cost savings calculated in accordance with
paragraph (d)(2) of this section.
(1) The present value of purchase and installation cost shall be
calculated by --
(i) Establishing the costs of purchasing and installing the
modification, including the annual principal and interest payments on
debt incurred, converted to base year dollars using the adjustment
factors set forth in Appendix C: Provided, however, That the principal
amount of indebtedness shall be used instead where it exceeds the sum of
such adjusted principal and interest costs, and the costs of engineering
design, less any salvage value of the existing equipment replaced by the
modification;
(ii) Establishing future purchase and installation costs for normal
replacement of significant components and parts of the modification,
less the normal replacement costs of the equipment replaced by the
modification and significant components of the equipment;
(iii) Deriving the yearly costs of operating and maintaining the
modification less the costs that would be incurred for operating and
maintaining the equipment replaced by the modification for the
attributed life of the modification;
(iv) Computing the present value of the purchase and installation
costs for each year of the attributed life of the modification by
multiplying the costs derived in paragraphs (d)(1) (i), (ii), and (iii)
of this section by the factors set forth in Appendix B; and
(v) Establishing the present value of the purchase and installation
costs for the attributed life of the modification by adding together the
yearly costs computed in paragraph (d)(1)(iv) of this section.
(2) The present value of energy cost savings assuming no change in
building size or production level, shall be calculated by --
(i) Deriving fuel prices by type of fuel for each year of the
attributed life of the modification using projected energy prices
provided in 450.4(d);
(ii) Establishing annual fuel costs for each year of attributed life
of the modification by multiplying the fuel prices determined in
paragraph (d)(2)(i) of this section by future energy consumption for
each year, with and without the modification, as referred to in
paragraph (b)(4) (ii) and (i) of this section, respectively, except that
the conversion factor to be used for electricity for Tables 11 -- 20 in
Appendix A shall be 3412 useable Btu per kilowatt-hour;
(iii) Computing the net annual fuel costs for each year of the
attributed life of the modification by subtracting the annual fuel cost
with the modification from the annual cost without the modification, as
provided in paragraph (d)(2)(ii) of this section;
(iv) Computing the present value of energy cost savings for each year
of the attributed life of the modification by multiplying the values
derived in paragraph (d)(2)(iii) of this section by the factors set
forth in Appendix B; and
(v) Establishing the present value of energy savings for the
attributed life of the modification by adding together the yearly
savings computed in paragraph (d)(2)(iv) of this section.
(e) The contents of a verification audit shall be reduced to writing
in the form of an audit report which shall contain the information and
supporting documentation required by this section.
(42 FR 33162, June 29, 1977, as amended at 44 FR 19351, Apr. 2, 1979;
44 FR 61317, Oct. 24, 1979)
10 CFR 450.22Auditors.
(a) A person who conducts a building verification audit shall --
(1) Be a licensed professional engineer or architect;
(2) Have an engineering degree from a college or university
accredited by the Engineers Council for Professional Development in
addition to 4 years of subsequent experience in one or more of the
following --
(i) Heating, ventilating and air conditioning installation or design
work;
(ii) Building operations, including operation of the environmental
systems;
(iii) Design of the building systems which are to be modified; or
(3) Be a certified Public Accountant in the State in which the audit
is performed and use building and building systems data provided by --
(i) A Test and Balance Engineer as certified by the Associated Air
Balance Council; or
(ii) A Testing, Adjusting, and Balancing Supervisor who is qualified
by and employed by a firm that is certified by, the National
Environmental Balancing Bureau.
(b) A person who conducts a verification audit of a residential
building having less than three dwelling units shall meet --
(1) The requirements specified in paragraph (a) of this section; or
(2) Subject to the approval of DOE, other requirements which shall be
prescribed by a Federal agency whose program utilizes such audits.
(c) A person who conducts an industrial process verification audit
shall --
(1) Be a licensed professional engineer, or
(2) Have an engineering degree from a college or university
accredited by the Engineers Council for Professional Development in
addition to 4 years of subsequent experience with a relevant industrial
process.
(d) Prior to conducting a verification audit, the auditor shall
disclose in writing to the person for whom the audit is to be performed
any significant financial interest held by the auditor, the auditor's
spouse, or any child of the auditor, in a partnership, corporation, sole
proprietorship, or other business enterprise engaged in the
manufacturing, including manufacturing of major components marketing,
installing, or servicing, of the modification which is the subject of an
audit, or in the ownership or operation of the building or industrial
plant which is the subject of an audit. A copy of the disclosure
statement shall be signed by the auditor and shall accompany submission
of the energy audit report or any portion thereof to DOE or any other
agency, department or other instrumentality of the Federal Government.
(e) A financial interest shall be significant for the purposes of
this section if it is one of the following --
(1) Employment, including employment as a consultant, by a
partnership, corporation, sole proprietorship, or other business
enterprise engaged in the manufacturing, marketing, installing, or
servicing of the modification which is the subject of an audit or in the
ownership or operation of the building or industrial plant which is the
subject of an audit;
(2) Ownership of 10 or more percent of the stock, including options
to purchase stock, or other securities issued by a corporation, or of a
10 percent or more financial interest in any other business enterprise
engaged in the manufacturing, marketing, installing, or servicing of a
modification which is the subject of an audit or in the ownership or
operation of the building or industrial plant which is the subject of an
audit;
(3) A position as a director or officer of a corporation or partner
in a partnership or active principal in a consortium or any other
business enterprise engaged in the manufacturing, marketing, installing,
or servicing of a modification which is the subject of an audit or in
the ownership or operation of the building or industrial plant which is
the subject of an audit;
(4) Participation in the profit-sharing program of a partnership,
corporation, or other business enterprise engaged in the manufacturing,
marketing, installing, or servicing of a modification which is the
subject of an audit or in the ownership or operation of the building or
industrial plant which is the subject of an audit; or
(5) Ownership of patent rights or other industrial property interests
or the receipt of royalties therefrom for the manufacturing, installing,
or servicing of a modification which is the subject of an audit.
(f) Each verification audit report shall include a statement signed
by the auditor certifying that --
(1) The auditor meets the applicable qualifications set forth in this
section;
(2) The auditor has made a full written disclosure of any significant
financial interests in accordance with paragraph (d) of this section;
(3) The audit was conducted in accordance with the requirements of
Subpart C of this part;
(4) The audit report required by 450.21(e) and accompanying
documentation accurately describe the audit findings; and
(5) The auditor understands that the report will be submitted to a
department or agency of the United States which may rely on the contents
of the material prepared by the auditor.
10 CFR 450.23Cost of verification audits.
(a) A verification audit shall be conducted without cost to the
occupant of a dwelling unit.
(b) For any building or industrial plant not referred to in paragraph
(a) of this section, a verification audit shall be conducted at a cost
which is less than
(1) 10 percent of the building's or industrial plant's total energy
costs for the preceding 12 months, when such energy costs were less than
$40,000;
(2) $4,000 or 5 percent of the building's or industrial plant's total
energy costs for the preceding 12 months, whichever is greater, when
such energy costs were equal to or greater than $40,000 but less than
$1,000,000; or
(3) $50,000 or 2.5 percent of the building's or industrial plant's
total energy costs for the preceding 12 months, whichever is greater,
when such energy costs were equal to or greater than $1,000,000;
(c) The Regional Administrator may grant exceptions to the limitation
set forth in paragraph (b) of this section, when requested, if he
determines upon specific review of a proposed audit that the audited
building or plant exhibits unique or unusually complex characteristics
relating to energy use and that the audit will therefore be unusually
costly to perform.
10 CFR 450.23 Subpart D -- Energy Measures
Source: 42 FR 37800, July 25, 1977, unless otherwise noted.
10 CFR 450.30Purpose and scope.
This part establishes a list of energy conservation and
renewable-resource energy measures developed by DOE after consultation
with the Secretary of Housing and Urban Development. Depletion of the
Nation's domestic resources of fossil fuels has created a need to
identify energy measures which can be carried out in residential and
commercial buildings and industrial plants.
10 CFR 450.31Energy conservation measures.
Subject to the requirements and limitations set forth in 450.32, an
energy conservation measure shall be --
(a) Ceiling insulation in a residential or commercial building, which
is a material which is installed on the surface of the ceiling facing
the builidng interior or between the heated top level living area and
the unheated attic space and which resists heat flow through the
ceiling;
(b) Wall insulation in a residential or commercial building or
industrial plant, which is a material which is installed on the surface
facing the building interior, or in the cavity, of an exterior wall and
which functions to resist heat flow through the wall;
(c) Floor insulation in a residential or commercial building, which
is a material which resists heat flow through the floor between the
first level heated space and the unheated space beneath it including a
basement or crawl space;
(d) Insulation for hot bare pipes in a residential or commercial
building or industrial plant, which is a material which resists heat
flow from the pipes to the surrounding space;
(e) (1) Caulks and sealants in a residential or commercial building
or industrial plant, which are nonrigid materials placed in joints of
buildings to prevent the passage of heat, air and moisture;
(2) Weatherstripping in a residential or commercial building or
industrial plant, which consists of narrow strips of flexible material
placed over or in movable joints of windows and doors to reduce the
passage of air and moisture;
(f) Roof insulation in a commercial building or industrial plant,
which is insulation placed on the surface of the roof facing the
building interior or between a roof deck and its water repellent roof
surface;
(g) Clock thermostat in a residential building, which is a
temperature control device for interior spaces incorporating more than
one temperature control point and a clock for switching from one control
point to another;
(h) Exterior insulation for a hot water heater in a residential or
commercial building or industrial plant, which is a material placed
around the tank which resists the heat flow from the hot water heater to
its surrounding space;
(i) Insulation for forced air ducts in a residential or commercial
building or industrial plant, which is a material which resists heat
flow from the duct to its surrounding space;
(j) Storm window in a residential or commercial building, which is an
extra window, normally installed to the exterior, but which may be
installed to the interior, of the primary or ordinary window, to
increase resistance to heat flow and to decrease air infiltration;
(k) Efficient lighting fixture or lamp in a residential or commercial
building or industrial plant, which is one which --
(1) Replaces an incandescent fixture or lamp with a type of lighting
system including fluorescent, mercury vapor, metal halide, and high
pressure sodium or ellipsoidal reflector lamps; or
(2) Replaces a mercury vapor fixture or lamp with a high pressure
sodium lighting system.
(l) Mixing valve for a hot water supply line in a residential or
commercial building or industrial plant, which is a type of valve
mounted in the hot water supply line, close to the water heater, which
mixes cold water with hot, reducing the temperature of the water in the
hot water distribution system;
(m) Flow restrictor for hot water lines in a residential or
commercial building or industrial plant, which is a device that limits
the rate of flow of hot water from shower heads and faucets;
(n) Burner for oil fired heating equipment in a residential building,
which is a device which atomizes the fuel oil, mixes it with air and
ignites the fuel-air mixture, and is an integral part of an oil fired
furnace or boiler, including the combustion chamber;
(o) Individual meters to replace a master meter for gas, electricity
and hot water in a commercial building, which are meters that measure
the consumption of gas, electricity or centrally distributed hot water
for individual users, instead of the total consumption which is measured
by a master meter;
(p) (1) New oil burner is a commercial building or industrial plant,
which is a device that meters, atomizes, ignites and mixes the oil with
air for the combustion process of a boiler; or
(2) New boiler controls in a commercial building or industrial plant,
which are devices that sense the need for reducing or increasing the
firing rate and change the combustion air and oil flow rate accordingly;
(q) Controls for lighting in a residential or commercial building or
industrial plant, which are manual or automatic cut off switches for
lighting systems that allow cut off of all lighting or a portion of the
lighting systems when lighting is not required;
(r) Automatic HVAC control system in a commercial building or
industrial plant, which is a device which adjusts the supply of heating
or cooling to meet space conditioning requirements;
(s) High efficiency electric motor or motor controls in a commercial
building or industrial plant, which replace an existing motor or motor
controls, resulting in not less than a specified increase in efficiency
at a specified level of use, as determined by DOE; and
(t) Whole house ventilation fan in a residential building, which is a
fan which removes air from the inside of a residential building to the
outside.
(u) Air source heat pump, which is a system which is part of the
central heating system and which has the capability of extracting heat
from a body of air and transferring this heat to a body of liquid or to
another body of air for space conditioning purpose;
(v) Water source heat pump, which is a system which is part of the
central heating system and which has the capability of extracting heat
from a body of water and transferring this heat to another body of
liquid or to a body of air for space conditioning purposes.
(Part B of Title IV of the Energy Conservation and Production Act,
Pub. L. 94-385, 90 Stat. 1125 et seq.; also issued under Part C, Title
III of the Energy Policy and Conservation Act, Pub. L. 94-163, 89 Stat.
871 et seq. (42 U.S.C. 6321 et seq.); Federal Energy Administration Act
of 1974, as amended, Pub. L. 93-275 (15 U.S.C. 761 et seq.); Department
of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 et seq. (42
U.S.C. 7101 et seq.); EO 11790, 39 FR 23185)
(42 FR 37800, July 25, 1977, as amended at 42 FR 61993, Dec. 8, 1977)
10 CFR 450.32Requirements and limitations for energy conservation
measures.
(a) Ceiling insulation shall be that amount which is required to
raise the total ceiling insulation in a heating zone as measured by an
R-Value, to levels not greater than --
(b) Wall insulation shall be eligible in heating zones 2, 3, 4, and
5.
(c) Floor insulation shall be that amount which is required to raise
the total floor insulation in a heating zone, as measured by an R-Value,
to levels not greater than --
(d) Insulation for hot bare pipes shall be eligible in all climate
zones.
(e) Caulks, sealants, and weatherstripping shall be eligible in all
climate zones.
(f) Roof insulation shall be no greater than that amount which is
required to raise the total insulation to the level of R-Value 20 in
heating zone 5. In all other heating zones, this amount of roof
insulation is eligible where the structure is air conditioned by an
absorption chiller.
(g) Clock thermostats shall automatically change a temperature
setting to match heating and cooling demands, and complete not less than
one cycle of adjustment in a 24 hour period, in all climate zones.
(h) Exterior insulation for hot water heaters shall be no greater
than that amount which is required to raise the total exterior
insulation to the level of R-Value 19, in all climate zones.
(i) Insulation for forced air ducts shall be no greater than that
amount which is required to raise the total insulation to the level of
R-Value 19, in all climate zones.
(j) Storm windows shall be eligible in heating zones 2, 3, 4, and 5,
provided that existing windows are single glazed.
(k) Efficient lighting fixtures and lamps shall produce more than
twice the useful light per watt of the lighting system they replace, in
all climate zones.
(l) Mixing valves for a hot water supply line shall be capable of
manual adjustment of water temperature, without water shut off or
disconnection, in all climate zones.
(m) Flow restrictors for hot water lines shall be eligible for all
shower heads and faucets in all climate zones.
(n) Residential burners for oil fired heating equipment shall --
(1) Cost less than $340 installed;
(2) Be certified by the manufacturer to be capable of yielding an
efficiency rating of 82 percent or higher in a new furnace as measured
by a standard steady state efficiency test measuring CO2 and stack
temperature; and
(3) Replace inefficient burners, which shall be burners that cannot
be adjusted using the procedures and tests prescribed in E.P.A.
publication 600/2-75-069A, entitled Guidelines for Residential Oil
Burner Adjustments, Oct., 1975, to perform at an efficiency not less
than --
(o) Individual meters to replace master meters for gas, electricity
and hot water shall be permitted in all climate zones.
(p) New commercial or industrial oil burners and controls shall --
(1) Replace oil burners that cannot maintain 10 percent CO2 at 1/4
firing rate, 11 percent CO2 at 1/2 firing rate and 14 percent CO2 at
full firing rate, while producing less than number two smoke spot number
for No. 2 oil or less than number three smoke spot number for No. 6
oil, using the test prescribed in ASTM Standard D2156-65 (70); and
(2) Be certified by the manufacturer to maintain 11 percent CO2 at
1/4 firing rate, 12.5 percent CO2 at 1/2 firing rate, and 14.5 percent
CO2 at full firing rate, while producing less than number two smoke spot
number for No. 2 oil or less than number three smoke spot number for
No. 6 oil using the test prescribed.
(q) Controls for lighting shall be installed on a circuit having a
wattage of more than 1,500 watts for automatic controls and 400 watts
for manual branch circuit switches, in all climate zones.
(r) HVAC controls, in all climate zones, shall be --
(1) Automatic, turn down, time actuated thermostats;
(2) Steam controls, valves, thermostats, timers, or external
temperature sensors to limit space temperatures;
(3) Economizer controls and systems to utilize outside air in lieu of
conditioned air when outside air temperatures will assist;
(4) Controls to reduce air distribution volume to meet demand;
(5) Controls to reduce heating or air conditioning systems output to
minimum levels during unoccupied periods; or
(6) Automated computer, microprocessor and logic controller
associated with HVAC control.
(s) High efficiency motors or motor controls shall have substantially
continuous annual use, 5,000 hours minimum, and shall increase
efficiency of operation not less than --
(t) Whole house ventilation fans shall have the capacity to provide
one complete exchange of air in less than two minutes, provided that the
residential buildings are air conditioned and located in cooling zones
1, 2, or 3.
(u) An air source heat pump must be evaluated by a verification audit
in accordance with the procedures in Subpart C of this part to determine
whether savings in a specific application are sufficient to recover the
costs of purchase and installation within its attributed life.
(v) A water source heat pump must be evaluated by a verification
audit in accordance with the procedures in Subpart C of this part to
determine whether costs savings in a specific application are sufficient
to recover the costs of purchase and installation within its attributed
life.
(Part B of Title IV of the Energy Conservation and Production Act,
Pub. L. 94-385, 90 Stat. 1125 et seq.; also issued under Part C, Title
III of the Energy Policy and Conservation Act, Pub. L. 94-163, 89 Stat.
871 et seq. (42 U.S.C. 6321 et seq.); Federal Energy Administration Act
of 1974, as amended, Pub. L. 93-275 (15 U.S.C. 761 et seq.); Department
of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 et seq. (42
U.S.C. 7101 et seq.); EO 11790, 39 FR 23185)
(42 FR 37800, July 25, 1977, as amended at 42 FR 61993, Dec. 8, 1977)
10 CFR 450.33Renewable-resource energy measures.
Subject to the requirements set forth in 450.34, a
renewable-resource energy measure shall be a --
(a) Agricultural waste-fired boiler, which is a system which is
partially or completely fueled by agricultural residues;
(b) Geothermal space heating or cooling system, which is a system
that uses heat extracted from the earth for either electrical generation
or space conditioning purposes; and
(c) Skylight, which is a device which is installed to replace small
portions of a roof for the purpose of supplying a portion of the
lighting requirements of a building;
(d) Solar electric dispersed photovoltaic system, which is a system
which involves the use of small arrays of cells which convert solar
radiation into electric power for on-site use;
(e) Solar powered pump, which is a system which captures energy
radiated by the sun, and uses this energy to power a pump;
(f) Solar process heating system, which is a system which captures
energy radiated by the sun for use in industrial or agricultural
processes;
(g) Solar space heating or cooling system, which is a system which
captures energy radiated by the sun, and uses it for space conditioning
purposes;
(h) Solar water heater, which is a system which captures energy
radiated by the sun, and uses it to heat water;
(i) Urban waste-fired boiler, which is a system which is partially or
entirely fueled by refuse or a refuse derived fuel;
(j) Urban waste pyrolysis system, which is a system which uses urban
wastes as a fuel and processes the wastes into a liquid or gaseous fuel;
(k) Water powered generator which is a system which captures and
stores the energy contained in moving water and transforms this energy
into electricity;
(l) Wind powered generator, which is a system which captures and
stores the energy transmitted by the wind and transforms this energy
into electric power;
(m) Wind powered water pump, which is a system which captures the
energy transmitted by the wind and uses this energy to extract water
from a reservoir;
(n) Wood-fired boiler, which is a system which is partially or
completely fueled by wood or wood residues;
(o) Wood-fired stove, which is a stove fueled by wood and which is
installed primarily for space conditioning purposes.
(Part B of Title IV of the Energy Conservation and Production Act,
Pub. L. 94-385, 90 Stat. 1125 et seq; also issued under Part C, Title
III of the Energy Policy and Conservation Act, Pub. L. 94-163, 89 Stat.
871 et seq. (42 U.S.C. 6321 et seq.); Federal Energy Administration Act
of 1974, as amended Pub. L. 93-275 (15 U.S.C. 761 et seq.); Department
of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 et seq. (42
U.S.C. 7101 et seq.); EO 11790, 39 FR 23185)
(42 FR 37800, July 25, 1977, as amended at 42 FR 61993, Dec. 8, 1977)
10 CFR 450.34Requirements for renewable-resource energy measures.
(a) Except as provided in paragraph (b) of this section, a
renewable-resource energy measure listed in 450.33 must be evaluated by
a verification audit in accordance with the procedures in Subpart C of
this part to determine whether cost savings in a specific application
are sufficient to recover the costs of purchase and installation within
the attributed life of the energy measure.
(b) A solar water heater shall not be required to be evaluated by a
verification audit if it is a system which --
(1) Is installed in a residential building; and
(2) Replaces an electric resistance water heater; and
(3) Is purchased, installed, and maintained at a total cost which
shall not exceed the maximum allowable cost which shall be computed by
--
(i) Selecting the correct system life factor in the Federal Region in
which the system will be installed for the attributed life of the solar
heater specified by the manufacturer in the following table --
(ii) Multiplying the system life factor by the current year's
electricity rate for water heating in effect for the user of the system
to be installed expressed in cents per kilowatt hour; and
(iii) Multiplying the product by the percent of the total hot water
demand the system will supply.
(Part B of Title IV of the Energy Conservation and Production Act,
Pub. L. 94-385, 90 Stat. 1125 et seq; also issued under Part C, Title
III of the Energy Policy and Conservation Act, Pub. L. 94-163, 89 Stat.
871 et seq. (42 U.S.C. 6321 et seq.); Federal Energy Administration Act
of 1974, as amended, Pub. L. 93-275 (15 U.S.C. 761 et seq.); Department
of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 et seq. (42
U.S.C. 7101 et seq.); EO 11790, 39 FR 23185)
(42 FR 37800, July 25, 1977, as amended at 42 FR 61993, Dec. 8, 1977)
10 CFR 450.35Climate zones.
(a) DOE shall determine whether to restrict an energy measure to a
climate zone.
(b) DOE shall designate climate zones, consisting of heating zones as
shown in Appendix A to Subpart D or cooling zones as shown in Appendix B
to Subpart D.
Insert Illus. 301
10 CFR 450.35 Pt. 450, Subpt. D, App. B
Insert Illus. 302
10 CFR 450.35 Subpart E -- Preliminary Energy Audits and Energy Audits
Authority: Title III of the National Energy Conservation Policy Act,
Pub. L. 95-619, 92 Stat. 3206 et seq., which establishes Parts G and H
of Title III of the Energy Policy and Conservation Act, Pub. L. 94-163,
42 U.S.C. 6321 et seq.; Sec. 365(e)(2), 42 U.S.C. 6325(e)(2), of the
Energy Conservation and Production Act, Pub. L. 94-385, 42 U.S.C. 6801
et seq.; Department of Energy Organization Act, Pub. L. 95-91, 42
U.S.C. 7101 et seq.
Source: 44 FR 19351, Apr. 2, 1979, unless otherwise noted.
10 CFR 450.40Purpose and scope.
This subpart establishes requirements for the conduct of preliminary
energy audits and energy audits, the qualifications of persons
conducting them and allowable costs of energy audits. Preliminary
energy audits and energy audits are required in the program of financial
assistance for schools and hospitals and the program of financial
assistance for units of local government and public care institutions,
as provided under Subpart B, Part 455, Chapter II of Title 10, Code of
Federal Regulations.
10 CFR 450.41Definitions.
For purposes of this subpart --
''Building'' means any structure, the construction of which was
completed on or before April 20, 1977, which includes a heating or
cooling system, or both.
''Complex'' means a closely situated group of buildings on a
contiguous site or a closely situated group of buildings served by a
central utility plant, such as a college campus or a multi-building
hospital.
''Construction completion'' means the date of issuance of an
occupancy permit for a building.
''Energy audit'' means a survey of a building or complex that is
conducted in accordance with the requirements of this subpart which --
(1) Identifies the type, size, energy use level and the major energy
using systems;
(2) Determines appropriate energy conservation maintenance and
operating procedures; and
(3) Indicates the need, if any, for the acquisition and installation
of energy conservation measures, including solar energy and other
renewable resource measures.
''Energy conservation maintenance and operating procedure'' means
modifications in the maintenance and operating procedures of a building,
and any installations therein, which are designed to reduce energy
consumption in such building and which require no significant
expenditure of funds.
''Energy conservation measure'' means an installation or modification
of an installation in a building which is primarily intended to reduce
energy consumption or allow the use of an alternative energy source,
including, but not limited to --
(1) Insulation of the building structure and systems within the
building;
(2) Storm windows and doors, multiglazed windows and doors, heat
absorbing or heat reflective glazed and coated windows and door systems,
additional glazing, reductions in glass area, and other window and door
system modifications;
(3) Automatic energy control systems;
(4) Equipment required to operate variable steam, hydraulic, and
ventilating systems adjusted by automatic energy control systems;
(5) Active or passive solar space heating or cooling systems, solar
electric generating systems, or any combination thereof;
(6) Active or passive solar water heating systems;
(7) Furnace or utility plant and distribution system modifications
including --
(A) Replacement burners, furnaces, boilers, or any combination
thereof, which substantially increase the energy efficiency of the
heating system;
(B) Devices for modifying flue openings which will increase the
energy efficiency of the heating system;
(C) Electrical or mechanical furnace ignition systems which replace
standing gas pilot lights; and
(D) Utility plant system conversion measures including conversion of
existing oil- and gas-fired boiler installations to alternative energy
sources, including coal;
(8) Caulking and weatherstripping;
(9) Replacement or modification of lighting fixtures to increase the
energy efficiency of the lighting system without increasing the overall
illumination of a building, unless such increase in illumination is
necessary to conform to any applicable State or local building code or,
if no such code applies, the increase is considered appropriate by the
Secretary;
(10) Energy recovery systems;
(11) Cogeneration systems which produce steam or forms of energy such
as heat, as well as electricity for use primarily within a building or a
complex of buildings owned by a school or hospital and which meet such
fuel efficiency requirements as the Secretary may by rule prescribe;
(12) Such other measures as the Secretary identifies by rule for
purposes of this part, as set forth in Subpart D of this part; and
(13) Such other measures as a grant application shows will save a
substantial amount of energy and as are identified in an energy audit in
accordance with Subpart C of this part.
''Fuel'' means any commercial source of energy used within the
building or complex being surveyed such as natural gas, fuel oil,
electricity or coal.
''Gross square feet'' means the sum of all heated or cooled floor
areas enclosed in a building, calculated from the outside dimensions, or
from the centerline of common walls.
''Heating or cooling system'' means any mechanical system for heating
or cooling areas of a building. For purposes of this subpart, any
mechanical system for distributing air throughout the building is
considered a cooling system.
''Hospital'' means a public or nonprofit institution which is a
general hospital, tuberculosis hospital, or any other type of hospital,
other than a hospital furnishing primarily domiciliary care; and is
duly authorized to provide hospital services under the laws of the State
in which it is situated.
''Hospital facilities'' means buildings housing a hospital and
related facilities, including laboratories, laundries, outpatient
departments, nurses' home and training facilities and central service
facilities operated in connection with a hospital, and also includes
buildings housing education or training facilities for health
professions personnel operated as an integral part of a hospital.
''Indian tribe'' means any tribe, band, nation, or other organized
group or community of Indians, including any Alaska native village, or
regional or village corporation, as defined in or established pursuant
to the Alaska Native Claims Settlement Act, Pub. L. 92-203; 85 Stat.
688, which (a) is recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians; or (b) is located on, or in proximity to, a Federal
or State reservation or rancheria.
''Local educational agency'' means a public board of education or
other public authority or a non-profit institution legally constituted
within, or otherwise recognized by, a State for either administrative
control or direction of, or to perform administrative services for, a
group of schools within a State.
''Maintenance'' means activities undertaken in a building to assure
that equipment and energy-using systems operate effectively and
efficiently.
''Operating'' means the operation of equipment and energy-using
systems in a building to achieve or maintain specified levels of
environmental conditions or service.
''Preliminary energy audit'' means a determination of the energy
consumption characteristics of a building, including the size, type,
rate of energy consumption, and major energy-using systems of such
building.
''Public care institution'' means a public or non-profit institution
which owns --
(1) A facility for long-term care, rehabilitation facility, or public
health center, as described in Section 1633 of the Public Health Service
Act (42 U.S.C. 300s-3; 88 Stat. 2270);
(2) A residential child care center, which is an institution, other
than a foster home, operated by a public or non-profit institution and
is primarily intended to provide full-time residential care with an
average length of stay of at least 30 days for at least 10 minor persons
who are in the care of such institution as a result of a finding of
abandonment or neglect or of being persons in need of treatment or
supervision.
''Public or nonprofit institution'' means an institution owned and
operated by --
(1) A State, a political subdivision of a State or an agency or
instrumentality of either;
(2) A school or hospital which is, or would be in the case of such
entities situated in America Samoa, Guam, Puerto Rico and the Virgin
Islands, exempt from income tax under section 501(c)(3) of the Internal
Revenue Code of 1954; or
(3) A unit of local government or a public care institution which is,
or would be in the case of such entities situated in America Samoa,
Guam, Puerto Rico and the Virgin Islands, exempt from income tax under
section 501(c)(3) or 501(c)(4) of the Internal Revenue Code of 1954.
''School'' means a public or nonprofit institution which --
(1) Provides, and is legally authorized to provide, elementary
education or secondary education, or both on a day or residential basis;
(2)(A) Provides, and is legally authorized to provide, a program of
education beyond secondary education, on a day or residential basis;
(B) Admits as students only persons having a certificate of
graduation from a school providing secondary education, or the
recognized equivalent of such certificate;
(C) Is accredited by a nationally recognized accrediting agency or
association; and
(D) Provides an educational program for which it awards a bachelor's
degree or higher degree or provides not less than a two-year program
which is acceptable for full credit toward such a degree at any
institution which meets the preceding requirements and which provides
such a program;
(3) Provides not less than a one-year program of training to prepare
students for gainful employment in a recognized occupation and which
meets the provisions cited in paragraphs (A), (B), and (C) of paragraph
(2) of this definition; or
(4) Is a local education agency.
''School facilities'' means buildings housing classrooms,
laboratories, dormitories, athletic facilities, or related facilities
operated in connection with a school.
''State'' means, in addition to the several States of the Union, the
District of Columbia, Puerto Rico, Guam, American Samoa, and the Virgin
Islands.
''Unit of local government'' means the government of a county,
municipality, parish, borough, or township, which is a unit of general
purpose government below the State, determined on the basis of the same
principles as are used by the Bureau of the Census for general
statistical purposes; the District of Columbia, American Samoa, Guam
and the Virgin Islands; the recognized governing body of an Indian
tribe which governing body performs substantial governmental functions;
libraries owned by any of the foregoing; and public libraries which
servce all residents of a political subdivision below the State level,
such as a community, district or region, free of charge and which derive
at least 40 percent of their operating funds from tax revenues of a
taxing authority below the State level.
10 CFR 450.42Contents of a preliminary energy audit.
(a) A preliminary energy audit shall provide a description of the
building or complex audited and determine its energy-using
characteristics, including --
(1) The name or other identification, and address of the building;
(2) A statement that the building meets the requirements of one of
the following categories --
(i) A school facility;
(ii) A hospital facility; or
(iii) A building owned and primarily occupied either by offices or
agencies of a unit of local government or by a public care institution,
neither of which shall include any building intended for seasonal use or
any building used primarily by a school or hospital;
(3) A description of the functional use made of the building
identifying whether it is a --
(i) School --
(A) Elementary;
(B) Secondary;
(C) College or university;
(D) Vocational;
(E) Local education agency administrative building; or
(F) Other;
(ii) Hospital --
(A) General;
(B) Tuberculosis; or
(C) Other;
(iii) Local government building --
(A) Office;
(B) Storage;
(C) Service;
(D) Library;
(E) Police station;
(F) Fire station; or
(G) Other; or
(iv) Public care building --
(A) Nursing home;
(B) Long term care other than a nursing home;
(C) Rehabilitation facility;
(D) Public health center; or
(E) Residential child care center;
(4) The name and address of the owner of record, indicating whether
owned by a public institution, private nonprofit institution or an
Indian tribe;
(5) The size of the building, expressed in gross square feet;
(6) The age of the building;
(7) Approximate daily hours of operation, including periods of
partial use if applicable;
(8) An indication of whether the building is partially used during
vacation periods or other times when the building is not fully utilized,
for periods of a week or more, by quarter;
(9) An identification of major energy-using systems, including --
(i) Type of heating system or cooling system or both;
(ii) Fuel used for heating system, cooling system;
(iii) Fuel used for domestic hot water, such as electric or natural
gas;
(iv) Special energy using systems, such as food service or laundry;
and
(v) Lighting, such as incandescent or fluorescent;
(10) Fuel use in physical units and cost data by type for a preceding
12 month period, by month if practicable, using actual data or an
estimate if actual figures are unavailable;
(11) Total annual energy use expressed in Btu's per gross square foot
and energy cost per gross square foot. Energy use shall be calculated
using the conversion factors set forth below --
(i) Electricity -- 11,600 Btu per kilowatt hour.
(ii) Natural gas -- 1,030 Btu per cubic foot.
(iii) Distillate fuel oil -- 138,690 Btu per gallon.
(iv) Residual fuel oil -- 149,690 Btu per gallon.
(v) Coal -- 24.5 million Btu per standard short ton.
(vi) Liquified petroleum gases including propane and butane -- 95,475
Btu per gallon.
(vii) Steam -- 1,390 Btu per pound.
Conversion factors may be taken from engineering reference manuals
for fuels not listed.
(b) A preliminary energy audit shall provide a brief description of
activities which have been undertaken to conserve energy in the building
or complex being audited, including whether --
(1) A person has been designated to monitor and evaluate energy use;
(2) Work partially or fully satisfying the requirements of an energy
audit has been performed;
(3) Detailed studies have been conducted by architects, engineers or
architect-engineer teams of energy use and energy conservation; and
(4) Any major energy conservation measures have been implemented,
together with a listing of such measures, and estimates of their costs
and energy savings if available.
(c) A preliminary energy audit shall provide information regarding
site, building, and heating and hot water systems related to solar
energy or other renewable resource potential including --
(1) An indication of whether open land, such as fields, yards and
parking areas, is available within the immediate vicinity of the
building which is not heavily shaded by tall buildings, trees or other
obstructions;
(2) A statement of whether the building is located generally within
an urban, suburban or rural area;
(3) An approximation of whether more than half the building's roof
area or southern oriented wall surface is heavily shaded by shrubs,
trees, buildings or other obstructions for more than about four hours
per day;
(4) The number of stories;
(5) A general description of the building's shape, such as square,
rectangular, E-shaped, H-shaped or L-shaped;
(6) An indication of whether the roof is flat or pitched, and if
pitched whether it has a southern orientation;
(7) Whether there are existing roof-top obstructions, such as
chimneys, space conditioning equipment, water towers, mechanical rooms,
stairwells or other permanent structures;
(8) An indication of the exterior material of the southern facing
wall, such as masonry, wood, aluminum;
(9) An approximation of the proportion of glass area of the southern
facing wall, such as less than 25 percent, 25-75 percent, more than 75
percent;
(10) Location of primary space heating and water heating systems --
(i) Whether outside of or within the building;
(ii) If within the building, whether on the ground floor, in the
basement, or on the roof; and
(iii) If within the building, whether centrally located, in multiple
units, or a combination thereof.
10 CFR 450.43Contents of an energy audit.
(a) An energy audit shall contain the information required for a
preliminary energy audit, in accordance with 450.42, and shall also
include a description of --
(1) Major changes in functional use or mode of operation planned in
the next fifteen years, such as demolition, disposal, rehabilitation, or
conversion from office to warehouse;
(2) For a building in excess of 200,000 gross square feet, if
available --
(i) Peak electric demand for both daily and annual cycles; and
(ii) Annual energy use by fuel type of the major mechancial or
electrical systems if the information is available or can be reasonably
estimated;
(3) Terminal heating or cooling, or both, such as radiators, unit
ventilators, fancoil units, or double-duct reheat systems;
(4) Building site and structual characteristics related to solar
energy or other renewable resource potential, including but not limited
to --
(i) Climatic factors, specifically --
(A) Average annual heating degree days and cooling degree days;
(B) Average solar insolation by month;
(C) Average monthly wind speed; and
(ii) Roof characteristics, including --
(A) An identification of primary structural component such as steel,
wood, concrete; and
(B) Type of roofing material such as shingles, slate, or built-up
materials; and
(5) A description of general building conditions.
(b) An energy audit shall --
(1) Indicate that appropriate energy conservation maintenance and
operating procedures have been implemented for the building, supported
by a demonstration based on actual records, that energy use has been
reduced in a given year through changes in maintenance and operating
procedures, by not less than 20 percent from a corresponding base period
having a degree day variance of less than 10 percent; or
(2) Recommend appropriate energy conservation maintenance and
operating procedures, on the basis of an on-site inspection and review
of any scheduled preventive maintenance plan, together with a general
estimate or range of energy and cost savings if practical, which may
result from --
(i) Effective operation of ventilation systems and control of
infiltration conditions, including --
(A) Repair of caulking or weatherstripping around windows and doors;
(B) Reduction of outside air intake, shutting down ventilation
systems in unoccupied areas, and shutting down ventilation systems when
the building is not occupied; and
(C) Assuring central or unitary ventilation controls, or both, are
operating properly;
(ii) Changes in the operation of heating or cooling systems through
--
(A) Lowering or raising indoor temperatures;
(B) Locking thermostats;
(C) Adjusting supply or heat transfer medium temperatures; and
(D) Reducing or eliminating heating or cooling at night or at times
when a building or complex is unoccupied;
(iii) Changes in the operation of lighting systems through --
(A) Reducing illumination levels;
(B) Maximizing use of daylight;
(C) Using higher efficiency lamps; and
(D) Reducing or eliminating evening cleaning of buildings;
(iv) Changes in the operation of water systems through --
(A) Repairing leaks;
(B) Reducing the quantity of water used, e.g., flow restrictors;
(C) Lowering settings for hot water temperatures;
(D) Raising settings for chilled water temperatures; and
(v) Changes in the maintenance and operating procedures of the
utility plant and distribution system through --
(A) Cleaning equipment;
(B) Adjusting air/fuel ratio;
(C) Monitoring combustion;
(D) Adjusting fan, motor, or belt drive systems;
(E) Maintaining steam traps; and
(F) Repairing distribution pipe insulation; and
(vi) Such other actions as the State may determine useful or
necessary, consistent with the purposes of the energy audit and
acceptable cost constraints of 450.46.
(c) Based on information gathered under paragraphs (a) and (b) of
450.42, and paragraphs (a)(1) and (3) of this section, an energy audit
shall indicate the need, if any, for the acquisition and installation of
energy conservation measures and shall include an evaluation of the need
and potential for retrofit based on consideration of one or more of the
following --
(1) An energy use index or indices, for example, Btu's per gross
square foot per year;
(2) An energy cost index or indices, for example, annual energy costs
per gross square foot; or
(3) The physical characterisitics of the building envelope and major
energy-using systems.
(d) Based on information gathered under paragraph (c) of 450.42 and
paragraph (a)(4) of this section, an energy audit shall include an
indication of whether building conditions or characteristics present an
opportunity for use of solar heating and cooling systems or solar hot
water systems.
(e) An energy audit may include an assessment of the estimated costs
and energy and cost savings likely to result from the purchase and
installation of one or more energy conservation measures.
(44 FR 19351, Apr. 2, 1979; 44 FR 61317, Oct. 24, 1979)
10 CFR 450.44Auditor qualifications.
Subject to the approval of the Secretary, a State shall develop
procedures for establishing the qualifications of auditors who will
conduct energy audits in accordance with Subpart B of 10 CFR Part 455
which --
(a) Ascertain that a person conducting the energy audit is qualified
by virtue of successful completion of an approved training program or
demonstration of equivalent skills gained by prior training and
experience, together with familiarity with the systems and operations of
the types of buildings being audited.
(b) Assure that the person responsible for the energy audit is not
the person directly responsible for the day-to-day operation of the
building being audited.
(c) Assure disclosure by an auditor of her or his financial interests
relating to the energy audit or any energy conservation measures,
including solar energy or renewable resource measures, reviewed or
recommended by the audit.
10 CFR 450.45Audit reports.
(a) The results of a preliminary energy audit or an energy audit,
conducted in accordance with the requirements of this subpart, shall be
contained in an audit report. Unless a claim of confidentiality is made
by an audited institution based upon a specific provision of the Freedom
of Information Act, 5 U.S.C. 552, and both the claim and reason for
confidentiality are submitted with the audit report or within 10 days
from the date the owner receives the report, an audit report shall be
considered public information and will be made available for public
review upon request.
(b) Preliminary energy audit reports and energy audit reports shall
be furnished to the State, and the owner and operator of the building
audited.
(c) An audit report for an energy audit shall include a statement
signed by the auditor that --
(1) The auditor meets the applicable qualifications as set forth in
450.44;
(2) The auditor has indicated any financial interests in accordance
with 450.44; and
(3) The audit was conducted in accordance with the requirements of
450.43.
(d) The audit report shall state that implementation of energy
conservation maintenance and operating procedures are a condition for
eligibility for receiving Federal assistance under the technical
assistance program, described in 10 CFR Part 455.
10 CFR 450.46Cost of energy audits.
(a) Except as provided in paragraph (b) of this section, the
allowable cost of an energy audit under this program for the purpose of
calculating the Federal share thereof, shall not exceed the following --
(b) Where necessary, States may increase the allowable cost of a
particular energy audit, provided that the total of all such increases
does not exceed 15 percent of the applicable State allocation. A State
may permit increases for --
(1) The amount necessary to enable personnel from insitutions having
few buildings or in remote locations to attend training sessions
qualifying them to perform energy audits;
(2) The amount necessary to provide transportation to perform energy
audits of buildings in remote locations; and
(3) The amount necessary to conduct energy audits for a building
having an unusually complicated system or configuration; however, this
increase may not exceed 50 percent of the allowable cost for an
individual building.
10 CFR 450.46 Pt. 450, App. A
10 CFR 450.46 Appendix A to Part 450 -- Energy Price Projections
1. Tables 1-10 show energy prices by fuel unit.
2. Tables 11-20 show energy prices per million useable Btu.
3. For the years following 1991, use 1991 prices.
4. DOE regions are comprised of the following:
Maine, New Hampshire, Vermont, Rhode Island, Connecticut,
Massachusetts
New York, New Jersey, Puerto Rico,1 Virgin Islands1
Pennsylvania, Delaware, Maryland, Virginia, West Virginia, District
of Columbia
North Carolina, South Carolina, Georgia, Florida, Kentucky,
Tennessee, Alabama, Mississippi, Canal Zone1
Michigan, Ohio, Indiana, Wisconsin, Minnesota, Illinois
Arkansas, Louisiana, Oklahoma, Texas, New Mexico
Iowa, Missouri, Nebraska, Kansas
North Dakota, South Dakota, Montana, Wyoming, Colorado, Utah
Nevada, Arizona, California, Hawaii, American Samoa,1 Guam,1 Trust
Territory of the Pacific Islands1
Idaho, Washington, Oregon, Alaska
5. Column heading abbreviations mean as follows:
RES. -- Residential Customer.
COMM. -- Commercial Customer.
IND. -- Industrial Customer.
ELECT. -- Electricity.
N. GAS -- Natural Gas.
Dist. -- Distillate Fuel.
RESID. -- Residual Fuel.
LPG -- Liquefied Petroleum Gas.
$/MKWH -- Dollars per thousand kilowatt-hours.
$/MCFT -- Dollars per thousand cubic feet.
$/BBL -- Dollars per barrel.
$/MEST -- Dollars per standard short ton (22.5 million Btu per ton).
1Price projections not yet available. Until such time as they are
made available, prices by the region indicated shall be applicable.
10 CFR 450.46 -- -- Pt. 450, App. B
10 CFR 450.46 -- -- Appendix B to Part 450 -- Discount Factors
(42 FR 33187, June 19, 1977. Redesignated and amended at 44 FR 37939,
June 29, 1979)
10 CFR 450.46 -- -- Pt. 450, App. C
10 CFR 450.46 -- -- Appendix C to Part 450 -- Factors to Adjust Future
Principal and Interest Payments to Base Year Equivalent Values
(42 FR 33188, June 29, 1977. Redesignated and amended at 44 FR 37939,
June 29, 1979)
10 CFR 450.46 -- -- PART 455 -- GRANT PROGRAMS FOR SCHOOLS AND HOSPITALS AND BUILDINGS OWNED BY UNITS OF LOCAL GOVERNMENT AND PUBLIC CARE INSTITUTIONS
10 CFR 450.46 -- -- Pt. 455
10 CFR 450.46 -- -- Subpart A -- General Provisions
Sec.
455.1 Purpose and scope.
455.2 Definitions.
455.3 Administration of grants.
455.4 Recordkeeping.
455.5 Suspension and termination of grants.
10 CFR 450.46 -- -- Subpart B -- Preliminary Energy Audit and Energy
Audit Grant Procedures
455.10 Purpose and scope
455.11 Financial assistance.
455.12 Cost sharing.
455.13 Allocation of funds.
455.14 Submission and review of applications.
455.15 Content of applications.
455.16 Use of funds.
455.17 Reporting requirements.
455.18 Contents of a preliminary energy audit.
455.19 Contents of an energy audit.
455.20 Contents of an energy use evaluation.
10 CFR 450.46 -- -- Subpart C -- Technical Assistance Programs for
Schools, Hospitals, Units of Local Government and Public Care
Institutions
455.40 Purpose and scope.
455.41 Eligibility.
455.42 Contents of program.
10 CFR 450.46 -- -- Subpart D -- Energy Conservation Measures for
Schools and Hospitals
455.50 Purpose and scope.
455.51 Eligibility.
455.52 Contents of program.
10 CFR 450.46 -- -- Subpart E -- Applicant Responsibilities
455.60 Grant application submittals.
455.61 Applicant certifications.
455.62 Grant applications for State administrative expenses.
455.63 Grantee records and reports.
10 CFR 450.46 -- -- Subpart F -- State Responsibilities
455.70 State evaluation of grant applications.
455.71 State ranking of grant applications.
455.72 Forwarding of applications.
455.73 State liaison, monitoring and reporting.
10 CFR 450.46 -- -- Subpart G -- Grant Awards
455.80 Approval of grant applications.
455.81 Grant awards for units of local government and public care
institutions.
455.82 Grant awards for schools and hospitals.
455.83 Grant awards for State administrative expenses.
10 CFR 450.46 -- -- Subpart H -- State Plan Development and Approval
455.90 Contents of State plan.
455.91 Submission and approval of State plans
455.92 State plans developed by the Secretary.
10 CFR 450.46 -- -- Subpart I -- Allocation of Appropriations Among the
States
455.100 Allocation of funds.
455.101 Allocation formulas.
455.102 Reallocation of funds.
10 CFR 450.46 -- -- Subpart J -- Administrative Review
455.110 Right to administrative review.
455.111 Notice requesting administrative review.
455.112 Transmittal of record on review.
455.113 Review by the Deputy Assistant Secretary.
455.114 Discretionary review by the Assistant Secretary.
455.115 Finality of decision.
Authority: Title III of the National Energy Conservation Policy Act,
Pub. L. 95-619, 92 Stat. 3238 (42 U.S.C. 6371 et seq.); and
Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 (42
U.S.C. 7101 et seq.)
Source: 50 FR 18353, Apr. 30, 1985, unless otherwise noted.
10 CFR 450.46 -- -- Subpart A -- General Provisions
10 CFR 455.1Purpose and scope.
(a) This part establishes programs of financial assistance pursuant
to Parts 1 and 2 of Title III of the National Energy Conservation Policy
Act, Pub. L. 95-619, 92 Stat. 3238 (42 U.S.C. 6371 et seq.) which add
Parts G and H, respectively, to Title III of the Energy Policy and
Conservation Act, Pub. L. 94-163, 89 Stat. 901 (42 U.S.C. 6291).
(b) This subpart authorizes grants to States or to public or
nonprofit schools and hospitals to assist them in conducting preliminary
energy audits and energy audits, in identifying and implementing energy
conservation maintenance and operating procedures, and in evaluating,
acquiring and installing energy conservation measures, including
renewable resource measures, to reduce the energy use and anticipated
energy costs of buildings owned by schools and hospitals.
(c) This subpart also authorizes grants to States or units of local
government and public care institutions to assist them in conducting
preliminary energy audits and energy audits, in identifying and
implementing energy conservation maintenance and operating procedures,
and evaluating energy conservation measures, including renewable
resource measures, to reduce the energy use and anticipated energy costs
of buildings owned by units of local government and public care
institutions.
10 CFR 455.2Definitions.
Act, as used in this part, means the Energy Policy and Conservation
Act, Pub. L. 94-163, 89 Stat. 871 (42 U.S.C. 6201 et seq.), as amended
by Title III of the National Energy Conservation Policy Act, Pub. L.
95-619, 92 Stat. 3238 (42 U.S.C. 6371).
Assistant Secretary means the Assistant Secretary for Conservation
and Renewable Energy or official to whom the Assistant Secretary's
functions may be redelegated by the Secretary.
Auditor means any person who is qualified in accordance with 10 CFR
450.44 to conduct an energy audit.
Building means any structure, the construction of which was completed
on or before April 20, 1977, which includes a heating or cooling system,
or both.
Civil rights requirements means civil rights responsibilities of
applicants and grantees pursuant to the Nondiscrimination in Federally
Assisted Programs regulation of the Department of Energy (10 CFR Part
1040).
Complex means a closely situated group of buildings on a contiguous
site, or a closely situated group of buildings served by a central
utility plant, such as a college campus or a multi-building hospital.
Construction completion means the date of issuance of an occupancy
permit for a building or the date the building is ready for occupancy as
determined by DOE.
Cooling degree days means the annual sum of the number of Fahrenheit
degrees of each day's mean temperature above 65 for a given locality.
Coordinating agency means any public or nonprofit organization
legally constituted within a State for either administrative control or
services for a group of institutions within a State and which acts, and
is authorized by eligible institutions to so act, as the agent for such
institutions with respect to their participation in the program.
Deputy Assistant Secretary means the Deputy Assistant Secretary for
Technical and Financial Assistant or any official to whom the Deputy
Assistant Secretary's functions may be redelegated by the Assistant
Secretary.
DOE means the Department of Energy.
Energy audit means any survey of a building or complex conducted in
accordance with the requirements of 455.19.
Energy conservation maintenance and operating procedures means
modifications in the maintenance and operations of a building, and any
installation therein, which are designed to reduce the energy use in
such building and which require no significant expenditure of funds.
Energy conservation measure means an installation or modification of
an installation in a building which is primarily intended to reduce
energy consumption or allow the use of an alternative energy source and
which may contain integral control and measurement devices, but which is
not an installation of leased equipment, including, but not limited to
--
(a) Insulation of the building structure and systems within the
building;
(b) Storm windows and doors, multiglazed windows and doors, heat
absorbing or heat reflective glazed and coated windows and door systems,
additional glazing, reductions in glass area, and other window and door
systems modifications;
(c) Automatic energy control systems which would reduce energy
consumption;
(d) Equipment required to operate variable steam, hydraulic, and
ventilating systems adjusted by automatic energy control systems;
(e) Active or passive solar space heating or cooling systems, solar
electric generating systems, or any combination thereof;
(f) Active or passive solar water heating systems;
(g) Furnace or utility plant and distribution system modifications
including --
(1) Replacement burners, furnaces, boilers, or any combination
thereof, which substantially increase the energy efficiency of the
heating system;
(2) Devices for modifying flue openings which will increase the
energy efficiency of the heating system;
(3) Electrical or mechanical furnace ignition systems which replace
standing gas pilot lights; and
(4) Utility plant system conversion measures including conversion of
existing oil and gas-fired boiler installations to alternative energy
sources, including coal;
(h) Addition of caulking and weatherstripping;
(i) Replacement or modification of lighting fixtures to increase the
energy efficiency of the lighting system without increasing the overall
illumination of a facility, unless such increase in illumination is
necessary to conform to any applicable State or local building code or,
if no such code applies, the increase is considered appropriate by the
Secretary;
(j) Energy recovery systems;
(k) Cogeneration systems which produce steam or forms of energy such
as heat, as well as electricity for use primarily within a building or a
complex of buildings owned by an eligible institution and which meet
such fuel efficiency requirements as the Secretary may by rule
prescribe;
(l) Such other measures as the Secretary identifies by rule for
purposes of this part, as set forth in Subpart D of 10 CFR Part 450;
and
(m) Such other measures as a grant application shows will save a
substantial amount of energy and are identified in an energy audit in
accordance with 455.19, its equivalent, an energy use evaluation, or a
technical assistance report.
Energy use evaluation means an evaluation of the energy use
characteristics of a building, which may be used in place of an energy
audit when a State has made provision for such use in its State plan and
must contain the information set forth in 455.20.
Fuel means any commercial source of energy used within the building
or complex being surveyed such as natural gas, fuel oil, electricity, or
coal.
Governor means the chief executive officer of a State, including the
Mayor of the District of Columbia, or a person duly designated in
writing by the Governor to act on her or his behalf.
Grantee means the entity or organization named in the Notice of
Financial Assistance Award as the recipient of the grant.
Grant program cycle means the period of time specified by DOE which
relates to the fiscal year or years for which monies are appropriated
for grants under this part, during which one complete cycle of DOE grant
activity occurs, including fund allocations to the States; applications
receipt, review, approval or disapproval; and award of grants by DOE,
but which does not include the grantee's performance period.
Gross square feet means the sum of all heated or cooled floor areas
enclosed in a building, calculated from the outside dimensions, or from
the centerline of common walls.
Heating or cooling system means any mechanical system for heating,
cooling or ventilating areas of a building, including a system of
through-the-wall air conditioning units.
Heating degree days means the annual sum of the number of Fahrenheit
degrees for each day's mean temperature below 65 for a given locality.
Hospital means a public or nonprofit institution which is a general
hospital, tuberculosis hospital, or any other type of hospital, other
than a hospital furnishing primarily domiciliary care; and which is
duly authorized to provide hospital services under the laws of the State
in which it is situated.
Hospital facilities means buildings housing a hospital and related
facilities, including laboratories, laundries, outpatient departments,
nurses' home and training facilities and central service facilities
operated in connection with a hospital, and also includes buildings
housing education or training facilities for health professions
personnel operated as a integral part of a hospital.
Indian tribe means any tribe, band, nation, or other organized group
or community of Indians, including any Alaska native village, or
regional or village corporation, as defined in or established pursuant
to the Alaska Native Claims Settlement Act, Pub. L. 92-203; 85 Stat.
688, which (a) is recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians; or (b) is located on, or in proximity to, a Federal
or State reservation or rancheria.
Local educational agency means a public board of education or other
public authority or a nonprofit institution legally constituted within,
or otherwise recognized by, a State for either administrative control or
direction of, or to perform administrative services for, a group of
schools within a State.
Maintenance means activities undertaken in a building to assure that
equipment and energy-using systems operate effectively and efficiently.
Native American means a person who is a member of an Indian tribe.
Operating means the operation of equipment and energy-using systems
in a building to achieve or maintain specified levels of environmental
conditions of service.
Operations Office Manager means the manager of a DOE Operations
Office or the manager's designee, or any official to whom the manager's
functions may be redelegated by the Secretary.
Owned or Owns means property interest, including without limitation a
leasehold interest, which is, or shall become, a fee simple title in a
building or complex.
Preliminary energy audit means any survey of a building or complex
conducted in accordance with the requirements of 455.18.
Primarily occupied means that in excess of 50 percent of a building's
square footage or time of occupancy is occupied by a public care
institution or an office or agency of a unit of local government.
Public care institution means a public or nonprofit institution which
owns --
(a) A facility for long-term care, rehabilitation facility, or public
health center, as described in section 1633 of the Public Health Service
Act (42 U.S.C. 300s-3; 88 Stat. 2270); or
(b) A residential child care center, which is an institution, other
than a foster home, operated by a public or nonprofit institution and is
primarily intended to provide full-time residential care with an average
length of stay of at least 30 days for at least 10 minor persons who are
in the care of such institution as a result of a finding of abandonment
or neglect or of being persons in need of treatment or supervision.
Public or nonprofit institution means an institution owned and
operated by --
(a) A State, a political subdivision of a State or an agency or
instrumentality of either; or
(b) A school or hospital which is, or would be in the case of such
entities situated in American Samoa, Guam, Puerto Rico, the Commonwealth
of the Northern Mariana Islands, and the Virgin Islands, exempt from
income tax under section 501(c)(3) of the Internal Revenue Code of 1954;
or
(c) A unit of local government or public care institution which is,
or would be in the case of such entities situated in American Samoa,
Guam, Puerto Rico, the Commonwealth of the Northern Mariana Islands, and
the Virgin Islands, exempt from income tax under section 510(c)(3) or
501(c)(4) of the Internal Revenue Code of 1954.
School means a public or nonprofit institution which --
(a) Provides, and is legally authorized to provide, elementary
education or secondary education, or both, on a day or residential
basis;
(b) (1) Provides, and is legally authorized to provide, a program of
education beyond secondary education, on a day or residential basis;
(2) Admits as students only persons having a certificate of
graduation from a school providing secondary education, or the
recognized equivalent of such certificate;
(3) Is accredited by a nationally recognized accrediting agency or
association; and
(4) Provides an educational program for which it awards a bachelor's
degree or higher degree or provides not less than a two-year program
which is acceptable for full credit toward such a degree at any
institution which meets the preceding requirements and which provides
such a program;
(c) Provides not less than a one-year program of training to prepare
students for gainful employment in a recognized occupation and which
meets the provisions cited in paragraphs (b) (1), (2) and (3) of this
definition; or
(d) Is a local educational agency.
School facilities means buildings housing classrooms, laboratories,
dormitories, athletic facilities, or related facilities operated in
connection with a school.
Secretary means the Secretary of the Department of Energy, or his/her
designee.
State means, in addition to the several States of the Union, the
District of Columbia, Puerto Rico, Guam, American Samoa, the
Commonwealth of the Northern Mariana Islands and the Virgin Islands.
State energy agency means the State agency responsible for developing
State energy conservation plans pursuant to section 362 of the Energy
Policy and Conservation Act (42 U.S.C. 6322), or, if no such agency
exists, a State agency designated by the Governor of such State to
prepare and submit the State Plan required under section 394 of the
Energy Policy and Conservation Act.
State hospital facilities agency means an existing agency which is
broadly representative of the public hospitals and the nonprofit
hospitals, or, if no such agency exists, an agency designated by the
Governor of such State which conforms to the requirements of this
definition.
State school facilities agency means an existing agency which is
broadly representative of public institutions of higher education,
nonprofit institutions of higher education, public elementary and
secondary schools, nonprofit elementary and secondary schools, public
vocational education institutions, nonprofit vocational education
institutions, and the interests of handicapped persons in a State or, if
no such agency exists, an agency which is designated by the Governor of
such state which conforms to the requirements of this definition.
Technical assistance means a program or activity for (1) the conduct
of specialized studies to identify and specify energy savings and
related cost savings that are likely to be realized as a result of
modifying maintenance and operating procedures in a building, acquiring
and installing one or more specified energy conservation measures in a
building, or both; and (2) the planning or administration of such
specialized studies. For schools and hospitals which are eligible to
receive grants to carry out energy conservation measures, the term also
means the planning or administration of specific remodeling, renovation,
repair, replacement, or insulation projects related to the installation
of energy conservation, or renewable resource measures in a building.
Unit of local government means the government of a county,
municipality, parish, borough, or township, which is a unit of general
purpose government below the State (determined on the basis of the same
principles as are used by the Bureau of the Census for general
statistical purposes) and the District of Columbia. Such term also
means the recognized governing body of an Indian tribe which governing
body performs substantial governmental functions and includes libraries
which serve all residents of a political subdivision below the State
level (such as a community, district or region) free of charge and which
derive at least 40 percent of their operating funds from tax revenues of
a taxing authority below the State level.
(50 FR 18353, Apr. 30, 1985, as amended at 55 FR 41326, Oct. 10,
1990)
10 CFR 455.3Administration of grants.
Grants provided under this part shall comply with applicable law,
regulation or procedure including, without limitation, the requirements
of:
(a) The DOE Financial Assistance Rules (10 CFR Part 600 as amended),
except as otherwise provided in this rule;
(b) Executive Order 12372 entitled ''Intergovernmental Review of
Federal Programs,'' (48 FR 3130, January 24, 1983), and the DOE
regulation implementing this Executive Order entitled
''Intergovernmental Review of Department of Energy Programs and
Activities'' (10 CFR Part 1005);
(c) Office of Management and Budget Circular A-97, entitled ''Rules
and Regulations Permitting Federal Agencies to Provide Specified or
Technical Services to State and Local Units of Government under Title
III of the Inter-Governmental Coordination Act of 1968'';
(d) DOE regulation entitled ''Nondiscrimination in Federally Assisted
Programs'' (10 CFR part 1040) which implements the following public
laws: Title VI of the Civil Rights Act of 1964; section 16 of the
Federal Energy Administration Act of 1974; section 401 of the Energy
Reorganization Act of 1974; Title IX of the Education Amendments of
1972; The Age Discrimination Act of 1975; and section 504 of the
Rehabilitation Act of 1973; and
(e) Such other procedures applicable to this part as DOE may from
time to time prescribe for the administration of financial assistance.
10 CFR 455.4Recordkeeping.
Each State or other entity within a State receiving financial
assistance under this part shall make and retain records required and
specified by the DOE Financial Assistance Rules, 10 CFR Part 600.
10 CFR 455.5Suspension and termination of grants.
Suspension and termination procedures shall be as set forth in the
DOE Financial Assistance Rules, 10 CFR Part 600.
10 CFR 455.5 Subpart B -- Preliminary Energy Audit and Energy Audit Grant Procedures
10 CFR 455.10 Purpose and scope.
(a) This subpart contains the regulations whereby the Federal
Government shall provide financial assistance for preliminary energy
audits and energy audits.
(b) Preliminary energy audits are to be performed by States for the
purpose of --
(1) Determining the energy use characteristics of eligible school and
hospital facilities, and buildings owned by units of local government
and public care institutions, including the size, type, rate of energy
use and major energy using systems of such buildings within the State;
(2) Establishing a data base from which reasonably accurate estimates
can be made of the number of eligible institutions, the number of
qualifying buildings, and patterns of energy conservation needs
including an indication of the opportunities for use of renewable energy
sources; and
(3) Assisting States in development of a sound and complete State
Plan which is a prerequisite to receipt of financial assistance for
technical assistance or energy conservation measures, including
renewable resource measures.
(c) Energy audits are to be performed by States or eligible schools,
hospitals, units of local government and public care institutions for
the purpose of --
(1) Determining the energy use characteristics of eligible school and
hospital facilities, and buildings owned by units of local government
and public care institutions, including the size, type, rate of energy
use and major energy using systems of such buildings within the State;
(2) Identifying and encouraging adoption of energy conservation
maintenance and operating procedures;
(3) Indicating potential, if any, for acquiring and installing energy
conservation measures, including possible use of renewable resources;
and
(4) Providing, to the greatest extent practicable, consistent
information necessary to identify those buildings to receive priority
for additional financial assistance.
10 CFR 455.11 Financial assistance.
(a) DOE shall provide financial assistance from sums appropriated
only upon application in accordance with the provisions of this subpart.
(b) The Secretary may make grants for purposes of conducting
preliminary energy audits and energy audits of school facilities and
hospital facilities.
(c) The Secretary may make grants for purposes of conducting
preliminary energy audits and energy audits of buildings owned by units
of local government and public care institutions.
10 CFR 455.12 Cost sharing.
(a) Amounts made available under this subpart, together with any
other amounts made available from other Federal sources, may not be used
to pay more than 50 percent of the costs of a preliminary energy audit
or an energy audit, except as provided in paragraph (b) of this section.
(b) The Governor of a State may request a grant of up to 100 percent
of the costs of any preliminary energy audit or energy audit for schools
or hospitals. When financial assistance in excess of the 50 percent
cost share limitation is provided to a State, the sum allocated to that
State for technical assistance and energy conservation measures,
including renewable resource measures shall be reduced by an equal
amount. Such funds shall be reallocated among all other States on the
same basis as the initial allocation. The Secretary may make such a
grant if the State has demonstrated that --
(1) The State would otherwise be unable to participate in the
program; and
(2) The amount of the additional financial assistance requested is
the minimum necessary to allow the State to participate.
(c) Where a State has expended funds without financial assistance
under this subpart for the conduct of preliminary energy audits or
energy audits commenced on or after November 9, 1978, the Secretary may,
upon application and approval under this subpart, accept all or any
portion of such expenditures as constituting State matching funds.
(d) To the extent that funds allocated to a State for preliminary
energy audits and energy audits are not needed because all potentially
eligible buildings have had or will have an energy audit or its
equivalent conducted, such funds may be made available for technical
assistance or energy conservation measures. DOE shall, upon request by
the State, redistribute funds not needed for preliminary energy audits
and energy audits to the State allocation for technical assistance or
energy conservation measures, as appropriate, and such funds shall be in
addition to those which would otherwise be available for such purposes.
(e) Amounts to be used to meet the cost-sharing requirements
described in Subpart G of this part must meet the requirements for
cost-sharing set forth in the DOE Financial Assistance Rules, 10 CFR
600.107.
10 CFR 455.13Allocation of funds.
(a) Financial assistance for conducting preliminary energy audits and
energy audits of school facilities and hospital facilities shall be
allocated among the States by multiplying the sum available by the
allocation factor (F).
(b) Financial assistance for conducting preliminary energy audits and
energy audits of buildings owned by units of local government and public
care institutions shall be allocated among the States by multiplying the
sum available by the allocation factor (F).
(c) The allocation factor (F) shall be determined by the formula --
where, as determined by DOE --
(1) n is the total number of States;
(2) SP is the population of the State, as determined from 1976 census
estimates, ''Current Population Reports'' Series p-25, number 642, or
territory as determined from 1973 census estimates, ''Current Population
Reports'', Series p-25, number 603;
(3) NP is 217,820,000, the total population of all States;
(4) SC is the sum of the State's heating and cooling degree days, as
determined from National Oceanic and Atmospheric Administration data for
the thirty year period, 1941 through 1970; and
(5) NC is 347,729, the sum of all States' heating and cooling degree
days.
(d) Financial assistance allocated to a State pursuant to this
subpart for a grant program cycle which remains unobligated at the end
of the grant program cycle shall, if available, be reallocated under
paragraph (a) or (b) of this section, as appropriate, in the subsequent
grant program cycle.
10 CFR 455.14Submission and review of applications.
(a) To be eligible to receive financial assistance, a State shall
complete and submit an original copy of the application to the
Secretary. Such application shall be signed by the Governor or his
designee.
(b) The first State application shall be submitted not later than 30
days after the effective date of this subpart. Subsequent State
applications shall be submitted for each grant program cycle on or
before the date established by the Secretary for --
(1) Schools and hospitals;
(2) Buildings owned by units of local government and public care
institutions; or
(3) Both.
(c) The State shall consult with representatives of schools,
hospitals, units of local government and public care institutions during
the preparation of applications for financial assistance for preliminary
energy audits and energy audits.
(d) The Governor may request an extension of the submission date for
a State's application by sending a written request to the Secretary
prior to the date upon which it is due. An extension will only be
provided for good cause shown. Such a request shall include a brief
discussion of work remaining to be done on the application and time
required for its completion. An extension shall not exceed 60 days
except where additional time may be required by a State to enact
enabling legislation, or where the Secretary finds an additional
extension to be consistent with the overall objectives of the Act and
the requirements of this subpart.
(e) The Secretary shall review each timely State application and
provide financial assistance if the Secretary determines that the
application meets the objectives of the Act and the requirements of this
part.
(f) All or any portion of an application under this section may be
disapproved to the extent that funds are not available under this
subpart to carry out such application or portion thereof.
(g) The Secretary shall state in writing the reasons any application
is disapproved. Applications not approved by the Secretary may be
resubmitted by the applicant at any time within the grant program cycle
in the same manner as the original application, and the Secretary shall
approve such resubmitted application if it is found to be in compliance
with the requirements of this subpart. Amendments of an application
shall, except as the Secretary may otherwise provide, be subject to
approval in the same manner as the original application.
10 CFR 455.15Content of applications.
(a) An application shall contain --
(1) The name and mailing address of the proposed State grantee;
(2) A budget which shall include identification of the sources,
amounts, and intended use of non-Federal funds required to meet the
cost-sharing provisions of 455.12; and
(3) Assurance that preliminary energy audit and energy audit
procedures to be employed will meet the requirements of 455.18 and
455.19.
(b) For each program for which financial assistance is sought, a
State application shall also contain --
(1) A timetable, including a listing of milestones for the activities
to be carried out by calendar quarters for each program for which
financial assistance will be provided;
(2) A description of materials to be developed and adopted, or an
identification of existing materials to be used, to meet the
requirements for conducting preliminary energy audits and energy audits
set forth in 455.18 and 455.19, including provision of data concerning
heating degree days, cooling degree days, insolation, and wind speed for
regions within the State;
(3) A description of the training to be provided to those persons who
will conduct energy audits. Such training shall, at a minimum, use as
instructors, architects or engineers who have had practical experience
in performing energy audits. The minimum qualifications of those
attending the training course, and the minimum qualifications of those
who will be permitted to perform energy audits without having attended
the training course, shall also be described.
(4) An explanation of how the size of the sample and the selection of
sample buildings will be determined in those instances where a sampling
methodology is used in the conduct of preliminary energy audits.
(5) A description of the methods which will be used to advise
eligible institutions of the availability of assistance under this
subpart, and the amounts available by categories of institutions as
determined under paragraphs (c)(3) and (d)(2) of this section.
(c) A State application for financial assistance to conduct
preliminary energy audits and energy audits of school and hospital
facilities shall contain --
(1) A description of the procedures the State will use to provide
funding or services to those schools and hospitals which are willing and
able to conduct their own energy audits;
(2) A justification for any funding applied for in excess of the 50
percent limit provided in paragraph (a) of 455.12;
(3) A description of the method by which funds will be apportioned
between school facilities and hospital facilities, including a
justification for the apportionment if fewer than all such facilities
will be audited;
(4) An explanation of the manner in which activities to be conducted
shall be consistent with --
(i) Related State programs for educational facilities in such State;
and
(ii) State health plans under sections 1524(c)(2) (42 U.S.C. 300m-3;
88 Stat. 2247) and 1603 (42 U.S.C. 300o-2; 88 Stat. 2259) of the
Public Health Service Act; and
(5) A description of the actions taken by the State to solicit and
consider the views of representatives of schools and hospitals during
the preparation of the State's application.
(d) A State application for financial assistance to conduct
preliminary energy audits and energy audits of buildings owned by the
units of local government and public care institutions shall contain a
description of --
(1) The procedures the State will use to provide funding or services
to those units of local government and public care institutions which
are willing and able to conduct their own energy audits.
(2) The method by which funds will be apportioned between buildings
owned by units of local government and public care institutions
including a justification for the apportionment if fewer than all these
buildings will be audited; and
(3) The action taken by the State to solicit and consider the views
of representatives of units of local government and public care
institutions during the preparation of the State's application.
(e) A State application shall set forth procedures --
(1) By which buildings or complexes eligible for preliminary energy
audits and energy audits will be identified, and a listing thereof
prepared and maintained;
(2) For the State to participate, on a selective sampling basis, in
the performance of on-site energy audits to assure that the findings
present a reasonably thorough and accurate assessment of the buildings
surveyed; and
(3) For the State to conduct followup visits, on a selective sampling
basis, to ascertain the degree of implementation of energy audit
results.
10 CFR 455.16Use of funds.
(a) A State shall either carry out preliminary energy audits and
energy audits of schools and hospitals, or provide for the conduct of
such audits by schools and hospitals, through use of funds which the
State has received pursuant to paragraph (b) of 455.11.
(b) A State shall either carry out preliminary energy audits and
energy audits of buildings owned by units of local government and public
care institutions, or provide for the conduct of such audits by units of
local goverment and public care institutions, through the use of funds
which the State has received pursuant to paragraph (c) of 455.11.
(c) No financial assistance provided under this subpart shall be
expended for --
(1) The audit of --
(i) A vacant, unused or condemned building;
(ii) A stadium which is part of a school facility used primarily for
exhibitions for which admission is charged and which is not also
generally used for intramural sports and physical fitness programs
generally available to all students; or
(iii) A building or complex owned by a unit of local government or a
public care institution --
(A) Not primarily occupied by such institution; or
(B) Which is intended for seasonal use; and
(2) The purchase or acquisition of any single piece of equipment or
tangible personal property costing more than $500 to be used in
conducting preliminary energy audits or energy audits, unless prior
written approval has been obtained from DOE.
(d) Of the financial assistance provided to a State under this
subpart, not more than 25 percent shall be expended for --
(1) Administrative expenses;
(2) Development of materials for the conduct of preliminary energy
audits and energy audits;
(3) Training of personnel to conduct energy audits;
(4) For conducting preliminary energy audits and sample energy
audits; and
(5) For monitoring and evaluation.
(e) At least 75 percent of the financial assistance provided under
this subpart shall be used in conducting energy audits of buildings,
including costs of personnel attending training sessions conducted by
the State preparatory to performing energy audits.
(f) A State may request, and the Secretary may approve, a waiver of
the limitations required under paragraph (d) and (e) of this section,
provided the State demonstrates that such a waiver would permit the
conduct of more energy audits than would otherwise be conducted under
the provisions of this section.
10 CFR 455.17Reporting requirements.
(a) Each State receiving financial assistance under this part shall
submit to DOE a quarterly program performance report and a quarterly
financial status report. The reports shall be submitted to DOE within
30 days following the end of each calendar quarter.
(b) The quarterly program performance report shall include --
(1) For those building which have received a preliminary energy audit
or an energy audit, a summary of the categories, types of ownership,
functional uses, gross square feet and energy use levels; and
(2) For those buildings which have received an energy audit --
(i) An estimate of the savings anticipated from energy conservation
operation and maintenance procedure changes identified; and
(ii) An approximation of the energy savings indicated from applicable
energy conservation measures if the procedure used by the State results
in such information or a summary of the number of buildings for which
the energy audit indicates potential for energy conservation measures,
including renewable resource measures.
(c) The second quarterly report shall also include --
(1) The total sum required for energy audits of buildings whose
owners have been advised of selection to receive an energy audit;
(2) A copy of the materials adopted by the State for conducting
energy audits;
(3) The apportionment of funds pursuant to paragraphs (c)(3) and
(d)(2) of 455.15 and the data on which such apportionment was based;
(4) The listing of institutions and their buildings compiled pursuant
to the provisions of paragraph (e)(1) of 455.15, summarized by
category, types of ownership, and functional use;
(5) Any necessary revisions to the estimate of the characteristics
and energy conservation potential of buildings owned by eligible
institutions resulting from the sample preliminary energy audits, if a
sampling approach was used.
(d) Copies of preliminary energy audit and energy audit reports made
by or furnished to the State under 450.45 of this chapter shall be
submitted to DOE together with the quarterly report.
(e) Reports shall contain such other information as may be required
by DOE.
10 CFR 455.18Contents of a preliminary energy audit.
(a) A preliminary energy audit shall provide a description of the
building or complex audited and determine its energy-using
characteristics, including --
(1) The name or other identification, and address of the building;
(2) A statement that the building meets the requirements of one of
the following categories --
(i) A school facility;
(ii) A hospital facility; or
(iii) A building owned and primarily occupied either by offices or
agencies of a unit of local government or by a public care institution,
neither of which shall include any building intended for seasonal use or
any building used primarily by a school or hospital;
(3) A description of the functional use made of the building
identifying whether it is a --
(i) School --
(A) Elementary;
(B) Secondary;
(C) College or university;
(D) Vocational;
(E) Other;
(ii) Hospital --
(A) General;
(B) Tuberculosis; or
(C) Other;
(iii) Local government building --
(A) Office;
(B) Storage;
(C) Service;
(D) Library;
(E) Police station;
(F) Fire station; or
(G) Other; or
(iv) Public care building --
(A) Nursing home;
(B) Long term care other than a nursing home;
(C) Rehabilitation facility;
(D) Public health center; or
(E) Residential child care center;
(4) The name and address of the owner of record, indicating whether
owned by a public institution, private nonprofit institution or an
Indian tribe;
(5) The size of the building, expressed in gross square feet;
(6) The age of the building;
(7) Approximate daily hours of operation, including periods of
partial use if applicable;
(8) An indication of whether the building is partially used during
vacation periods or other times when the building is not fully utilized,
for periods of a week or more, by quarter;
(9) An identification of major energy-using systems, including --
(i) Type of heating system or cooling system or both;
(ii) Fuel used for heating system, cooling system;
(iii) Fuel used for domestic hot water, such as electric or natural
gas;
(iv) Special energy using systems, such as food service or laundry;
and
(v) Lighting, such as incandescent or fluorescent;
(10) Fuel use in physical units and cost data by type for a preceding
12 month period, by month if practicable, using actual data or an
estimate if actual figures are unavailable; and
(11) Total annual energy use expressed in Btu's per gross square foot
and energy cost per gross square foot.
(b) A preliminary energy audit shall provide a brief description of
activities which have been undertaken to conserve energy in the building
or complex being audited, including whether --
(1) A person has been designated to monitor and evaluate energy use;
(2) Work partially or fully satisfying the requirements of an energy
audit has been performed;
(3) Detailed studies have been conducted by architects, engineers or
architect-engineer teams of energy use and energy conservation; and
(4) Any major energy conservation measures have been implemented,
together with a listing of such measures, and estimates of their costs
and energy savings if available.
(c) A preliminary energy audit shall provide information regarding
site, building, and heating and hot water systems related to renewable
resource potential, including --
(1) An indication of whether open land, such as fields, yards and
parking areas, is available within the immediate vicinity of the
building which is not heavily shaded by tall buildings, trees or other
obstructions;
(2) A statement of whether the building is located generally within
an urban, suburban or rural area;
(3) An approximation of whether more than half the building's roof
area or southern oriented wall surface is heavily shaded by shrubs,
trees, buildings or other obstructions for more than about four hours
per day;
(4) The number of stories;
(5) A general description of the building's shape, such as square,
rectangular, E-shaped, H-shaped or L-shaped;
(6) An indication of whether the roof is flat or pitched, and if
pitched whether is has a southern orientation;
(7) Whether there are existing roof-top obstructions, such as
chimneys, space conditioning equipment, water towers, mechanical rooms,
stairwells or other permanent structures;
(8) An indication of the exterior material of the southern facing
wall, such as masonry, wood, aluminum;
(9) An approximation of the proportion of glass area of the southern
facing wall, such as less than 25 percent, 25-75 percent, more than 75
percent; and
(10) Location of primary space heating and water heating systems --
(i) Whether outside of or within the building;
(ii) If within the building, whether on the ground floor, in the
basement, or on the roof; and
(iii) If within the building, whether centrally located, in multiple
units, or a combination thereof.
10 CFR 455.19 Contents of an energy audit.
(a) An energy audit shall contain the information required for a
preliminary energy audit, in accordance with 455.18, and shall also
include a description of --
(1) Major changes in functional use or mode of operation planned in
the next fifteen years, such as demolition, disposal, rehabilitation, or
conversion from office to warehouse;
(2) For a building in excess of 200,000 gross square feet, if
available --
(i) Peak electric demand for both daily and annual cycle; and
(ii) Annual energy use by fuel type of the major mechanical or
electrical systems if the information is available or can be reasonably
estimated;
(3) Terminal heating or cooling, or both, such as radiators, unit
ventilators, fancoil units, or double-duct reheat systems;
(4) Building site and structural characteristics related to renewable
resource potential, including but not limited to --
(i) Climatic factors, specifically --
(A) Average annual heating degree days and cooling degree days;
(B) Average solar insolation by month;
(C) Average monthly wind speed; and
(ii) Roof characteristics, including --
(A) An identification of primary structural component such as steel,
wood, concrete; and
(B) Type of roofing material such as shingles, slate or built-up
material; and
(5) A description of general building conditions.
(b) An energy audit shall --
(1) Indicate that appropriate energy conservation maintenance and
operating procedures have been implemented for the building, supported
by a demonstration based on actual records, that energy use has been
reduced in a given year through changes in maintenance and operating
procedures, by not less than 20 percent from a corresponding based
period having a degree day variance of less than 10 percent; or
(2) Recommended appropriate energy conservation maintenance and
operating procedures, on the basis of an on-site inspection and review
of any scheduled preventive maintenance plan, together with a general
estimate or range of energy and cost savings if practical, which may
result from --
(i) Effective operation of ventilation systems and control of
infiltration conditions, including --
(A) Repair of caulking or weatherstripping around windows and doors;
(B) Reduction of outside air intake, shutting down ventilation
systems in unoccupied areas, and shutting down ventilation systems when
the building is not occupied; and
(C) Assuring central or unitary ventilation controls, or both, are
operating properly;
(ii) Changes in the operation of heating or cooling systems through
--
(A) Lowering or raising indoor temperatures;
(B) Locking thermostats;
(C) Adjusting supply or heat transfer medium temperatures; and
(D) Reducing or eliminating heating or cooling at night or at times
when a building or complex is unoccupied;
(iii) Changes in the operation of lighting systems through --
(A) Reducing illumination levels;
(B) Maximizing use of daylight;
(C) Using higher efficiency lamps; and
(D) Reducing or eliminating evening cleaning of buildings;
(iv) Changes in the operation of water systems through --
(A) Repairing leaks;
(B) Reducing the quantity of water used, e.g., flow restrictors;
(C) Lowering settings for hot water temperatures; and
(D) Raising settings for chilled water temperatures; and
(v) Changes in the maintenance and operating procedures of the
utility plant and distribution system through --
(A) Cleaning equipment;
(B) Adjusting air/fuel ratio;
(C) Monitoring combustion;
(D) Adjusting fan, motor, or belt drive systems;
(E) Maintaining steam traps; and
(F) Repairing distribution pipe insulation; and
(vi) Such other actions as the State may determine useful or
necessary, consistent with the purposes of the energy audit and
acceptable cost constraints of 450.46.
(c) Based on information gathered under paragraphs (a) and (b) of
455.18, and paragraphs (a) (1) and (2) of this section, an energy audit
shall indicate the need, if any, for the acquisition and installation of
energy conservation measures and shall include an evaluation of the need
and potential for retrofit based on consideration of one or more of the
following --
(1) An energy use index or indices, for example, Btu's per gross
square foot per year;
(2) An energy cost index or indices, for example, annual energy costs
per gross square foot; or
(3) The physical characteristics of the building envelope and major
energy-using systems.
(d) Based on information gathered under paragraph (c) of 455.18 and
paragraph (a)(4) of this section, an energy audit shall include an
indication of whether building conditions or characteristics present an
opportunity for use of solar heating and cooling systems or solar hot
water systems.
(e) An energy audit may include an assessment of the estimated costs
and energy and cost savings likely to result from the purchase and
installation of one or more energy conservation measures.
10 CFR 455.20Contents of an energy use evaluation.
(a) An energy use evaluation may be used in lieu of an energy audit
in cases where no energy audit has been performed, in accordance with
455.19, and where the State has made provision for such use in its State
plan, in accordance with 455.90(1).
(b) An energy use evaluation shall contain the information required
in 455.18(a) through 455.18(b)(4), and shall also include a description
of --
(1) The building's potential suitability for renewable resource
applications;
(2) Major changes in functional use or mode of operation planned in
the next fifteen years, such as demolition, disposal, rehabilitation, or
conversion from office to warehouse;
(3) Appropriate energy conservation maintenance and operating
procedures which have been implemented for the building;
(4) The need, if any, for the acquisition and installation of energy
conservation measures, including an assessment of the estimated costs
and energy and cost savings likely to result from the purchase and
installation of one or more energy conservation measures and an
evaluation of the need and potential for retrofit based on consideration
of one or more of the following:
(i) An energy use index or indices, for example, Btu's per gross
square foot per year;
(ii) An energy cost index or indices, for example, annual energy
costs per gross square foot; or
(iii) The physical characteristics of the building envelope and major
energy-using systems; and
(5) Such other information as the State has determined useful or
necessary, in accordance with 455.90(1).
10 CFR 455.20 Subpart C -- Technical Assistance Programs for Schools, Hospitals, Units of Local Government and Public Care Institutions
10 CFR 455.40Purpose and scope.
This subpart specifies what constitutes a technical assistance
program eligible for financial assistance under this part, and sets
forth the eligibility criteria for schools, hospitals, units of local
government and public care institutions to receive grants for technical
assistance to be performed in buildings owned by such institutions.
10 CFR 455.41Eligibility.
To be eligible to receive financial assistance for a technical
assistance program, an applicant must --
(a) Be a school, hospital, unit of local government, public care
institution or coordinating agency, all as defined in 455.2, except
that --
(1) Financial assistance for units of local government and public
care institutions will be provided only for buildings which are owned
and primarily occupied by offices or agencies of a unit of local
government or public care institution and which are not intended for
seasonal use and not utilized primarily as a school or hospital eligible
for assistance under this program; and
(2) Financial assistance provided to a school which is a local
education agency as defined in 455.2 must not be used for a technical
assistance program or acquisition or installation of any energy
conservation measure in any building of such agency which is used
principally for administration.
(b) Be located in a State which has an approved State Plan as
described in Subpart H of this part;
(c) Have conducted an energy audit, its equivalent or an energy use
evaluation for the building for which financial assistance is to be
requested, subsequent to the most recent construction, reconfiguration
or utilization change which significantly modified energy use within the
building;
(d) Give assurance that it has implemented all energy conservation
maintenance and operating procedures identified as a result of the
energy audit or its equivalent, identified in the energy use evaluation,
or provide a written justification satisfactory to the Secretary,
pursuant to 455.90(j); and
(e) Submit an application in accordance with the provisions of this
part and the approved State Plan.
10 CFR 455.42Contents of program.
(a) The purpose of a technical assistance program is to provide a
report which meets the requirements of this section and the State's
procedures for implementing this section. A technical assistance
program should be designed --
(1) To identify and document energy conservation maintenance and
operating procedure changes and energy conservation measures in
sufficient detail to support possible application for financial
assistance, and to provide reviewers and decisionmakers handling such
applications sufficient information upon which to base judgments as to
their reasonableness; and
(2) To provide the institution with a description of its current
characteristics, procedures, operating and maintenance procedure changes
and potential for cost-effective capital improvements such that the
report can be used to guide those responsible for the energy and
financial management of the institution in implementing energy
conservation actions without regard to possible financial assistance
under this program.
(b) A technical assistance program shall be conducted by a technical
assistance analyst, who has the qualifications established in the State
Plan in accordance with 455.90(p) and who shall consider all feasible
energy conservation operating and maintenance procedure changes and
energy conservation measures for a building, including renewable
resource measures. A technical assistance program shall identify the
estimated costs of, and the energy and cost savings likely to be
realized from, implementing energy conservation maintenance and
operating procedures. A technical assistance program shall also provide
a detailed engineering analysis to specify the estimated cost of, and
the energy and cost savings likely to be realized from, acquiring and
installing each energy conservation measure, including renewable
resource measures, that indicate a significant potential for saving
energy based upon the technical assistance analyst's initial
consideration.
(c) The technical assistance analyst shall use the following factors
in calculating costs --
(1) Current prices, including demand charges.
(2) Marginal prices where incremental prices apply.
(d) At the conclusion of a technical assistance program, the
technical assistance analyst shall prepare a report which shall include
--
(1) A description of building characteristics and energy data
including --
(i) The results of the energy audit, its equivalent, or energy use
evaluation of the building, together with a statement as to the accuracy
of the energy audit data as required in 455.42(d)(7), and completeness
of the energy audit recommendations;
(ii) The operation characteristics of energy using systems; and
(iii) The estimated remaining useful life of the buildings;
(2) An analysis of the estimated energy consumption of the building,
by fuel type in total Btu's and Btu/sq. ft./yr. using conversion
factors prescribed by the State, at optimum efficiency (assuming
implementation of all energy conservation maintenance and operating
procedures);
(3) An evaluation of the building's potential for renewable resource
conversions; including water heating systems;
(4) A listing of any known local zoning ordinances and building codes
which may restrict the installation of solar or renewable resource
systems;
(5) A description and analysis of all identified operating and
maintenance procedures changes, if any, and energy conservation
measures, including renewable resource measures, setting forth --
(i) A description of each operating and maintenance procedure change
and an estimate of the costs of adopting such operating and maintenance
procedure changes;
(ii) An estimate of the cost of design, acquisition and installation
of each energy conservation measure, discussing pertinent assumptions as
necessary;
(iii) Estimated useful life of each energy conservation measure;
(iv) An estimate of increases or decreases in maintenance and
operating costs that would result from each conservation measure if any;
(v) An estimate of the salvage value or disposal cost of each energy
conservation measure at the end of its useful life, if any;
(vi) An estimate supported by all data and assumptions used in
arriving at the estimate, of the annual energy and energy cost savings
(using current energy prices including demand charges) expected from
each operating and maintenance procedure change and the acquisition and
installation of each energy conservation measure. In calculating the
potential energy cost savings or energy savings of each energy
conservation measure, including renewable resource measures, the
technical assistance analyst shall --
(A) Assume that all energy savings obtained from energy conservation
maintenance and operating procedures have been realized;
(B) Calculate the total energy and energy cost savings, by fuel type,
expected to result from the acquisition and installation of all feasible
energy conservation measures, taking into account the interaction among
the various measures;
(C) Calculate that portion of the total energy and energy costs
savings, as determined in paragraph (d)(5)(vi)(B) of this section
attributable to each individual energy conservation measure; and
(D) Consider climate and other variables;
(vii) The simple payback period of each energy conservation measure,
taking into account the interactions among the various measures. The
simple payback period is calculated by dividing the estimated total cost
of the measure, as determined pursuant to 455.42(d)(5)(ii), by the
estimated annual cost saving accruing from the measure, as determined
pursuant to 455.42(d)(5)(vi). For the purposes of ranking applications,
the simple payback period shall be calculated using the cost savings
resulting from energy savings only, determined on the basis of current
energy prices except:
(A) For energy conservation measures which result in conversion from
oil, natural gas, other petroleum products or electricity to coal, the
simple payback period shall be calculated based on the annual cost
savings (using current energy prices) associated with the change in
fuels; or
(B) For renewable resource energy conservation measures, the simple
payback period shall be calculated using the cost of the fuels displaced
(using current energy prices) as the annual cost savings; and
(viii) The estimated cost of the measure which shall be the total
cost for design and other professional service (excluding cost of a
technical assistance program), if any, and acquisition and installation
costs. At the request of the applicant, the technical assistance report
shall provide a life cycle cost analysis, which considers all costs and
cost savings, such as maintenance costs and/or savings, resulting from
an energy conservation measure for use by the institution;
(6) Energy use and cost data, actual or estimated, for each fuel type
used for the prior 12-month period, by month if possible; and
(7) A signed and dated certification that the technical assistance
program has been conducted in accordance with the requirements of this
section and that the data presented is accurate to the best of the
technical assistance analyst's knowledge.
10 CFR 455.42 Subpart D -- Energy Conservation Measures for Schools and Hospitals
10 CFR 455.50 Purpose and scope.
This subpart indicates what constitutes an energy conservation
measure that may receive financial assistance under this part and sets
forth the eligibility criteria for schools and hospitals to receive
grants for energy conservation measures, including renewable resource
measures.
10 CFR 455.51 Eligibility.
(a) To be eligible to receive financial assistance for an energy
conservation measure, including renewable resource measures, an
applicant must --
(1) Be a school, hospital or coordinating agency as defined in
455.2, provided that financial assistance provided to a school which is
a local education agency as defined in 455.2 must not be used for a
technical assistance program or acquisition or installation of any
energy conservation measure in any building of such agency which is used
principally for administration;
(2) Be located in a State which has an approved State Plan as
described in Subpart H of this part;
(3) Have completed a technical assistance program or its equivalent,
as determined by the State in accordance with the State Plan, for the
building for which financial assistance is to be requested, subsequent
to the most recent construction, reconfiguration or utilization change
to the building which significantly modified energy use within the
building;
(4) Have implemented all energy conservation maintenance and
operating procedures which are identified as the result of a technical
assistance program, or have provided a satisfactory written
justification for not implementing any specific maintenance and
operating procedures so identified, as described in 455.90(j).
(5) Have no plan or intention at the time of application to close or
otherwise dispose of the building for which financial assistance is to
be requested within the simple payback period of any energy conservation
measure recommended for that building; and
(6) Submit an application in accordance with the provisions of this
part and the approved State Plan.
(b) To be eligible for financial assistance, the simple payback
period of each energy conservation measure for which financial
assistance is requested shall not be less than 2 years nor greater than
10 years, and the estimated useful life of the measure shall be greater
than its simple payback period.
10 CFR 455.52 Contents of program.
The programs to be funded under this part will be for the design,
acquisition and installation of energy conservation measures to reduce
energy consumption or measures to allow the use of solar or other
alternative energy resources for schools and hospitals. Such measures
include, but are not necessarily limited to those included in the
definition of ''energy conservation measures'' in 455.2.
10 CFR 455.52 Subpart E -- Applicant Responsibilities
10 CFR 455.60Grant application submittals.
(a) Each eligible applicant desiring to receive financial assistance
shall file an application in accordance with the provisions of this
subpart and the approved State Plan of the State in which such building
is located. The application, which may be amended in accordance with
applicable State procedures at any time prior to the State's final
determination thereon, shall be filed with the State energy agency
designated in the State Plan.
(b) Applications from schools, hospitals, units of local government,
public care institutions and coordinating agencies for financial
assistance for technical assistance programs shall include the
certifications contained in 455.61 and --
(1) The applicant's name and mailing address;
(2) The energy audit, its equivalent, or an energy use evaluation (as
determined by the State) for each building for which financial
assistance is requested;
(3) A project budget, by building, which stipulates the intended use
of all Federal and non-Federal funds; including in-kind contributions
(valued in accordance with the guidelines in 10 CFR 600.107(e)), to be
used to meet the cost-sharing requirements described in Subpart G of
this part;
(4) A brief description, by building, of the proposed technical
assistance program, including a schedule, with appropriate milestone
dates, for completing the technical assistance program; and
(5) Additional information required by the applicable State Plan, and
any other information which the applicant desires to have considered,
such as information to support an application from a school or hospital
for financial assistance in excess of the 50 percent Federal share on
the basis of severe hardship or an application which proposes the use of
Federal funds, paid under and authorized by another Federal agreement,
to meet cost sharing requirements.
(c) Applications from schools and hospitals and coordinating agencies
for financial assistance for energy conservation measures, including
renewable resource measures, shall include the certifications contained
in 455.61 and --
(1) The applicant's name and mailing address;
(2) Identification of each building pursuant to 455.18(a) (1)
through (5), or an equivalent identification if no preliminary energy
audit was performed, for which financial assistance is requested,
including --
(i) Name or other identification of each building and its address;
(ii) Building category;
(iii) Description of functional use;
(iv) Ownership; and
(v) Size of building expressed in gross square feet.
(3) A project budget, by measure or by building as provided in the
State Plan, which stipulates the intended use of all Federal and
non-Federal funds, and identifies the sources and amounts of non-Federal
funds, including in-kind contributions (valued in accordance with the
guidelines in 10 CFR 600.107(e)) to be used to meet the cost sharing
requirements described in Subpart G of this part;
(4) A schedule, including appropriate milestone dates, for the
completion of the design, acquisition and installation of the proposed
energy conservation measures for each building;
(5) For each energy conservation measure proposed for funding, the
projected cost, and the projected simple payback period as contained in
455.42(d)(5) (vii) and (viii). Applications with more than one energy
conservation measure per building shall include projected costs and
paybacks for each measure, and the average simple payback period for all
measures proposed for the building;
(6) Unless waived by DOE, the report of the technical assistance
analyst. This report must have been completed since the most recent
construction, reconfiguration or utilization change to the building,
which significantly modified energy use, for each building.
(7) If the applicant is aware of any adverse environmental impact
which may arise from adoption of any energy conservation measure, and
analysis of that impact and the applicant's plan to minimize or avoid
such impact; and
(8) Additional information required by the applicable State Plan, and
any additional information which the applicant desires to have
considered, such as information to support an application for financial
assistance in excess of the 50 percent Federal share on the basis of
severe hardship, or an application which proposes the use of Federal
funds, paid under and authorized by another Federal agreement, to meet
cost sharing requirements.
10 CFR 455.61Applicant certifications.
Applications for financial assistance for technical assistance
programs and energy conservation measures, including renewable resource
measures, shall include certification that the applicant --
(a) Is eligible under 455.41 for technical assistance or 455.51 for
energy conservation measures;
(b) Has satisified the requirements set forth in 455.60;
(c) For applications for technical assistance, has implemented all
energy conservation maintenance and operating procedures recommended as
a result of the energy audit, its equivalent, or identified in the
energy use evaluation, and for applications for energy conservation
measures, those recommended in the report obtained under a technical
assistance program. If any such procedure has not been implemented, the
application shall contain a satisfactory written justification for not
implementing that procedure as prescribed pursuant to 455.90(j);
(d) Will obtain from the technical assistance analyst, before the
analyst performs any work in connection with a technical assistance
program or energy conservation measure, a signed statement certifying
that the technical assistance analyst has no conflicting financial
interests and is otherwise qualified to perform the duties of technical
assistance analyst in accordance with the standards and criteria
established in the approved State Plan;
(e) For a project under this Part having a total estimated cost of
more than $5,000, any construction contract or subcontract in excess of
$2,000 using any grant funds awarded under this part must include those
contract labor standards provisions set forth in 29 CFR 5.5 and a
provision for payment of laborers and mechanics at the minimum wage
rates determined by the Secretary of Labor in accordance with the
Davis-Bacon Act (40 U.S.C. 276a) as set forth in 29 CFR Part 1. For the
purpose of this section ''project'' means an undertaking to acquire and
install one or more energy conservation measures in a building which is
eligible under this part; and
(f) Will comply with all reporting requirements contained in 455.63.
10 CFR 455.62Grant applications for State administrative expenses.
(a) Each State desiring to receive grants to help defray State
administrative expenses shall file an application in accordance with the
provisions of this section. At any time after notice by DOE of the
amounts allocated to each State for a grant program cycle, each State
may apply to the Secretary for an amount for administrative expenses not
exceeding $30,000 or 2 percent of its total allocation for technical
assistance and energy conservation measures, whichever is higher. In
addition, each State, after it makes the submittal to DOE required under
455.72, may apply for a further grant not exceeding 5 percent of the
total of all grant awards for technical assistance and energy
conservation measures within that State in that grant program cycle,
less any amounts previously awarded the State for administrative
expenses in the same grant program cycle. In the event that a State
cannot or decides not to use the amount available to it for an
administrative grant under this section for administrative purposes,
these funds may, at the discretion of the State, be used for technical
assistance and energy conservation grants to eligible institutions
within that State, in accordance with this part.
(b) Applications for financial assistance to defray State
administrative expenses shall include --
(1) The name and address of the person designated by the State to be
responsible for the State's functions under this part;
(2) An identification of intended use of all Federal and non-Federal
funds, for the State administrative expenses listed in 455.83(c) and a
list of the sources and amounts of the required matching non-Federal
funds, including in-kind contributions valued in accordance with the
guidelines in the DOE Financial Assistance Rules (10 CFR 600.107(e)) to
be used to meet the cost-sharing requirements described in Subpart G of
this part; and
(3) Any other information required by DOE.
10 CFR 455.63Grantee records and reports.
(a) Each State, school, hospital, unit of local government, public
care institution and coordinating agency which receives a grant for a
technical assistance program, energy conservation measure, including
renewable resource measures, or State administrative expenses shall keep
all the records required by 455.4 in accordance with DOE Financial
Assistance Rules.
(b) Each grantee shall submit reports as follows --
(1) For technical assistance projects, two copies of a final report
of the analysis completed on each building for which financial
assistance was provided shall be submitted to the State energy agency no
later than 90 days following completion of the analysis. These reports
shall contain --
(i) The report submitted to the institution by the technical
assistance analyst, and
(ii) The institution's plan to implement energy conservation
maintenance and operating procedures.
(2) For energy conservation measure projects --
(i) Grantee shall submit semi-annual progress reports. Two copies
shall be submitted to the State energy agency no later than the end of
July and January and shall detail and discuss milestones accomplished,
those not accomplished, status of in-progress activities, and remedial
actions if needed to achieve project objectives. A final report may be
submitted in lieu of the last semi-annual report if it satisfies the
semi-annual progress report and final report designated time frames;
(ii) Grantees shall submit a final report. Two copies shall be
submitted to the State within 90 days of the completion of the project
and shall list and describe the energy conservation measures acquired
and installed, contain a final estimated simple payback period for each
measure and the project as a whole, and include a statement that the
completed energy conservation measures conform to the approved grant
application.
(iii) Grantees shall submit annual energy use reports. Two copies
shall be submitted to the State within 60 days of the close of each
12-month period following project completion for a period of three
years, or for the life of this Federal program, whichever is shorter,
and shall identify each building and provide data on energy use for that
building for the preceding 12-month period.
(3) For State administrative grants, each State shall submit a
semi-annual program performance report to DOE by the close of each
February and August. The report will provide:
(i) A discussion of administrative activities pursuant to 455.83(c),
and a discussion of milestones accomplished, those not accomplished,
status of in-progress activities, problems encountered, and remedial
actions, if any, planned pursuant to 455.73(f);
(ii) A summary of grantee reports received by the State during the
report period pursuant to paragraphs (b)(1) and (b)(2) of this section;
and
(iii) For the report due to be submitted to DOE by the close of each
August, an estimate of annual energy use reductions in the State, by
energy source, attributable to implementation of energy conservation
maintenance and operating procedure and installation of energy
conservation measures under this program. Such estimates shall be based
upon a sampling of institutions participating in the technical
assistance phase of this program and upon the reports submitted to the
State pursuant to paragraph (b)(2)(iii) of this section.
(4) Such other information as the Secretary may, from time to time
request.
(5) Each copy of any technical assistance, energy conservation
measures, or State administrative report shall be accomplished by a
financial status report completed in accordance with the documents
listed in 455.3. A financial status report shall not be required for
annual reports submitted pursuant to paragraph (b)(2)(iii) of this
section. In addition, States shall file quarterly financial status
reports for the quarters which occurs between the semi-annual report
periods covered in their program performance reports. These quarterly
reports are due within 30 days following the end of the applicable
quarters.
(6) Grantee technical assistance, energy conservation measure, and
financial status reports submitted to the State shall be submitted by
the State to DOE as required by the Secretary.
10 CFR 455.63 Subpart F -- State Responsibilities
10 CFR 455.70State evaluation of grant applications.
(a) If an application received by a State is reviewed and evaluated
by that State and determined to be in compliance with Subparts C, D and
E of this part, 455.70(b), any additional requirements of the approved
State Plan, State environmental laws, and other applicable laws and
regulations, then such application will be eligible for financial
assistance.
(b) Concurrently with its evaluation and ranking of grant
applications pursuant to 455.71, the State will forward applications
for technical assistance or for energy conservation measures for a
school or hospital to the State school facilities agency or the State
hospital facilities agency, as the case may be, for review and
certification that each school application is consistent with related
State programs for educational facilities, and each hospital application
is consistent with State health plans under sections 1524(c)(2) and 1603
of the Public Health Service Act (42 U.S.C. 300m-3 and 300o-2,
respectively), and that each has been coordinated through abbreviated
review mechanisms under section 1523 of the Public Health Service Act
(42 U.S.C. 300m-2) and section 1122 of the Social Security Act. No
application from a school or hospital shall be eligible for funding
until such certification has been issued.
10 CFR 455.71 State ranking of grant applications.
All eligible applications received by the State will be ranked by the
State in accordance with its approved State Plan.
(a) For technical assistance programs, buildings shall be ranked in
descending priority based upon the energy conservation potential of the
building as determined from an energy audit, its equivalent, or an
energy use evaluation if an energy audit has not been performed, in
accordance with the procedures established in the State Plan and one or
more of the methods indicated in 455.19(c) or 455.20(d). In the case
of buildings having equivalent energy conservation potential, preference
shall be given to those buildings which have completed an energy audit
or evaluation without the use of Federal funds. Each State shall
develop separate rankings for all buildings covered by eligible
applications for --
(1) Technical assistance programs for units of local government and
public care institutions, and
(2) Technical assistance programs for schools and hospitals.
(b) All eligible applications for energy conservation measures
received will be ranked by the State on an individual
building-by-building or a measure-by-measure basis. Several buildings
may be ranked as a single building if the application proposes a single
energy conservation measure which directly involves all of the
buildings. Buildings or measures shall be ranked in accordance with the
procedures established by the State Plan, on the basis of the
information developed during a technical assistance program (or its
equivalent) for the building and the criteria for ranking applications,
which are listed below in the descending order in which weights for each
criterion are to be applied by the State --
(1) Payback, calculated in accordance with 455.42(d)(5)(vii);
(2) The types of energy sources to which conversion is proposed,
including in descending priority --
(i) Renewable; and
(ii) Coal;
(3) The types and quantities of energy to be saved, including oil,
natural gas, or electricity, in a priority as established in the
approved State Plan;
(4) The quality of the technical assistance program report; and
(5) Other factors as determined by the State.
(c) A State is exempt from the ranking requirements of this section
when --
(1) The total amount requested by all applications for schools and
hospitals for technical assistance and energy conservation measures in a
given grant program cycle for grants up to 50 percent is less than or
equal to the funds available to the State for such grants and the total
amount recommended for hardship funding is less than or equal to the
amounts available to the State for such grants.
(2) The total amount requested by all applications for buildings
owned by units of local government and public care institutions in a
given grant program cycle is less than or equal to the total amount
allocated to the State for technical assistance program grants in the
State.
(d) Within the rankings of school and hospital buildings for
technical assistance and energy conservation measures, including
renewable resource measures, to the extent that approvable applications
are submitted, a State shall initially assure that --
(1) Schools receive at least 30 percent of the total funds allocated
for schools and hospitals to the State in any grant program cycle; and
(2) Hospitals receive at least 30 percent of the total funds
allocated for schools and hospitals to the State in any grant program
cycle.
(e) To the extent provided in 455.100(d), financial assistance will
be initially available for schools and hospitals experiencing severe
hardship based upon an applicant's long-term need or inability to
provide the 50 percent non-Federal share. This financial assistance
will be available only to the extent necessary to enable such
institutions to participate in the program.
(1) The State shall recommend funds for severe hardship applications
wholly or partially from the funds reserved in accordance with
455.100(d) and as stated in an approved State Plan.
(2) Applications for Federal funding in excess of 50 percent based on
claims of severe hardship shall be given an additional evaluation by the
State to assess on a quantifiable basis, to the maximum extent
practicable, the relative need among eligible institutions. The minimum
amount of additional Federal funding necessary for the applicant to
participate in the program will be determined by the State in accordance
with the procedures established in the State Plan and will be based upon
one or more of the following --
(i) The ratio of the cost of the proposed technical assistance
programs or energy conservation measures to the institution's total
annual budget;
(ii) The borrowing capacity of the institution;
(iii) The average unemployment rate for the institution's locality at
the time the application is submitted;
(iv) The ratio of the amount expended annually by the institution for
energy to the institution's total annual operating budget;
(v) The median annual family income of the institution's locality;
and
(vi) Other special conditions of the institution or its locality as
determined by the State.
(3) A State shall indicate, for those schools and hospitals with the
highest rankings, determined pursuant to paragraphs (a) and (b) of this
section --
(i) The amount of additional hardship funding requested by each
eligible applicant for each building determined to be in a class of
severe hardship; and
(ii) The amount of hardship funding recommended by the State based
upon relative need as determined in accordance with the State Plan, to
the limit of the hardship funds available.
(f) Only schools, hospitals, and hardship applicants shall be
recommended for funding from the appropriate allocation specified in
paragraphs (d) and (e) of this section, unless after the State deadline
for submitting applications has passed, there are insufficient
applications meeting the requirements of paragraphs (d) and (e) of this
section and otherwise qualifying for funding under this part, in which
case the State may recommend use of the remaining funds in those
allocations to fund applications under this part without regard to the
limitations of paragraphs (d) and (e) of this section.
10 CFR 455.72Forwarding of applications.
(a) Each State shall forward all applications recommended for funding
within its allocation to the Secretary once each grant program cycle
along with a listing of buildings or measures covered by eligible
applications for schools, hospitals, units of local government and
public care institutions, and ranked by the State pursuant to the
provisions of 455.71. If ranking has been employed the list shall
include the standings of buildings or measures.
(1) Measure by measure rankings will be recombined for the respective
building with more than one recommended measure.
(2) Buildings will be consolidated under one grantee application.
(b) The State shall indicate the amount of financial assistance
requested by the applicant for each eligible building and, for those
buildings recommended for funding within the limits of the State's
allocation, the amount recommended for funding. If the amount
recommended is less than the amount requested by the applicant, the list
shall also indicate the reason for that recommendation.
(c) States shall certify applications submitted are eligible pursuant
to 455.70(a).
10 CFR 455.73State liaison, monitoring and reporting.
Each State shall be responsible for --
(a) Consulting with eligible institutions and coordinating agencies
representing such institutions in the development of its State Plan;
(b) Notifying eligible institutions and coordinating agencies of the
content of the approved State Plan and any amendment to a State Plan;
(c) Notifying each applicant how the applicant's building or measure
ranked among other applications, and whether and to what extent its
application will be recommended for funding or, if not to be recommended
for funding, the specific reason(s) therefor;
(d) Certifying that each institution has given its assurance that it
is willing and able to participate on the basis of any changes in
amounts recommended for that institution in the State ranking pursuant
to 455.71;
(e) Reporting requirements pursuant to 455.63(b)(3); and
(f) Direct program oversight and monitoring of the activities for
which grants are awarded as defined in the State Plan. States shall
immediately notify the Secretary of any non-compliance or indication
thereof.
10 CFR 455.73 Subpart G -- Grant Awards
10 CFR 455.80Approval of grant applications.
(a) The Secretary shall review and approve applications submitted by
a State in accordance with 455.72 if the Secretary determines that the
applications meet the objectives of the Act, and comply with the
applicable State Plan and the requirements of this part. The Secretary
may disapprove all or any portion of an application to the extent funds
are not available to carry out a program or measure (or portion thereof)
contained in the application, or for such other reason as the Secretary
may deem appropriate.
(b) The Secretary shall notify a State and the applicant of the final
approval or disapproval of an application at the earliest practicable
date after the Secretary's receipt of the application, and, in the event
of disapproval, shall include a statement of the reasons therefor.
(c) An application which has been disapproved for reasons other than
lack of funds may be amended to correct the cause of its disapproval and
resubmitted in the same manner as the original application at any time
within the same grant program cycle. Such an application will be
considered to the extent funds have not already been designated for
institutions by the ranking process at the time of resubmittal.
However, nothing in this provision shall obligate either the State or
the Secretary to take final action regarding a resubmitted application
within the grant program cycle. An application not acted upon may be
resubmitted in a subsequent grant program cycle.
(d) The Secretary shall not provide supplemental funds beyond those
awarded for technical assistance projects and shall fund only one
technical assistance project per building.
(e) The Secretary shall not provide supplemental funds beyond those
awarded for all energy conservation measures funded under a grant in a
given grant program cycle. An institution may apply for, and the
Secretary may make, grant awards in another grant program cycle for
energy conservation measures for which financial assistance was not
previously and specifically provided, even though the measures relate to
a building which previously received grants for other energy
conservation measures.
(f) The Secretary may fund costs incurred by an institution for
technical assistance and energy conservation measure projects after the
date of the grant application, so long as that date is no earlier than
the close of the preceding grant program cycle. Such costs may be
funded when, in the judgment of the Secretary, the institution has
complied with program requirements and the costs incurred are allowable
under applicable cost principles and the approved project budget. The
applicant bears the responsibility for the entire project cost unless
the application is approved by the Secretary in accordance with this
part.
(g) In addition to the prior approval requirements for project
changes as specified in the DOE Financial Assistance Rules (10 CFR
600.114(c)), a grantee shall request prior written approval from DOE
before --
(1) Transferring DOE or matching amounts between buildings included
in an approved application when the State ranks applications on a
building-by-building basis, or
(2) Transferring DOE or matching amounts between energy conservation
measures included in an approved application when the State ranks on a
measure-by-measure basis.
10 CFR 455.81Grant awards for units of local government and public care
institutions.
(a) The Secretary may make grants to units of local government,
public care institutions and coordinating agencies for up to 50 percent
of the costs of performing technical assistance programs for buildings
covered by an application approved in accordance with 455.80; except
that in the case of units of local government and public care
institutions a majority of whose operating and capital funds are
provided by the government of the Virgin Islands, Guam, American Samoa,
or the Commonwealth of Northern Mariana Islands, a grant may be made for
up to 100 percent of such costs.
(b) Total grant awards within any State to units of local government
and public care institutions are limited to funds allocated to each
State in accordance with Subpart I of this part.
(c) Units of local government and public care institutions are not
eligible for financial assistance for severe hardship.
(d) No grant awarded under this section for a technical assistance
program shall include funding for the purchase of any single item of
equipment or tangible personal property having an acquisition cost in
excess of $500.
10 CFR 455.82 Grant awards for schools and hospitals.
(a) The Secretary may make grants to schools, hospitals and
coordinating agencies for up to 50 percent of the costs of performing
technical assistance programs for buildings covered by an application
approved in accordance with 455.80; except that in the case of schools
and hospitals a majority of whose operating and capital funds are
provided by the government of the Virgin Islands, Guam, American Samoa,
or the Commonwealth of the Northern Mariana Islands a grant may be made
for up to 100 percent of such costs. Grant awards for technical
assistance programs in any State within any grant program cycle shall be
limited to a portion of the total allocation as specified in the Subpart
I.
(b) The Secretary may make grants to schools, hospitals and
coordinating agencies for up to 50 percent of the costs of acquiring and
installating energy conservation measures, including renewable resource
measures, for buildings covered by an application approved in accordance
with 455.80; except that in the case of schools and hospitals a
majority of whose operating and capital funds are provided by the
government of the Virgin Islands, Guam, American Samoa, or the
Commonwealth of the Northern Mariana Islands, a grant may be made for up
to 100 percent of such costs.
(c) The Secretary may award up to 10 percent of the total amount
allocated to a State for schools and hospitals in a case of severe
hardship, ascertained by the State in accordance with the State Plan,
for buildings recommended and in amounts determined by the State
pursuant to 455.71(e).
(d) No grant awarded under this section for a technical assistance
program shall include funding for the purchase of any single item of
equipment or other tangible personal property having an acquisition cost
in excess of $500.
(e) Applicant expenditures for a technical assistance program or
installation or one of more energy conservation measures commenced after
November 8, 1978 for a building may be wholly or partially credited, in
the discretion of the Secretary, toward meeting the matching non-Federal
funds requirement for a grant for additional energy conservation
measures in the same building. Credit will be considered only when the
projects for which credit is sought meet program requirements, except
that the project need not comply with the Davis-Bacon Act regarding
labor standards or wage rates. Credit for energy conservation measures
will be considered only when supported by a technical assistance
analysis performed prior to the installation of the energy conservation
measures. Applications for credit for completed or partially completed
energy conservation measures will be considered in conjunction with
applications for additional energy conservation measures. The
application shall reflect both the work done and the work to be done and
will be reviewed and ranked on that basis. In no case shall the credit
exceed an amount equal to the non-Federal share of the proposed
additional energy conservation measures.
10 CFR 455.83 Grant awards for State administrative expenses.
(a) For the purpose of defraying State expenses in the administration
of technical assistance programs in accordance with Subpart C and energy
conservation measures in accordance with Subpart D, the Secretary may
make grant awards to a State --
(1) Immediately following public notice of the amounts allocated to a
State for the grant program cycle, and upon approval of the application
for administrative costs, in an amount not exceeding $30,000 or 2
percent of that State's allocation for a given grant program cycle for
technical assistance and energy conservation measures, whichever is
higher. Grants for such purposes may be made for up to 50 percent of a
State's projected administrative expenses, or in the case of grants to
the Virgin Islands, Guam, American Samoa, and the Commonwealth of the
Northern Mariana Islands, for up to 100 percent of the projected
administrative expenses, as approved by the Secretary; and
(2) Concurrently with grant awards for approved applications for
technical assistance or energy conservation measures for institutions in
that State, and upon approval of an application for administrative
costs, in an amount not exceeding the difference between the amount
granted pursuant to paragraph (a)(1) of this section and 5 percent of
the total amount of grants awarded within the State for technical
assistance programs and energy conservation measures in the applicable
grant program cycle. Grants for such purposes may be made for up to 50
percent of a State's projected administrative expenses or in the case of
grants to the Virgin Islands, Guam, American Samoa, and the Commonwealth
of the Northern Mariana Islands, for up to 100 percent of the projected
administrative expenses, as approved by the Secretary. The total of all
grants for State administrative costs, technical assistance programs and
energy conservation measures in that State shall not exceed the total
amount allocated for that State for any grant program cycle.
(b) In the event that a State cannot or decides not to use the amount
available to it for an administrative grant under this section for
administrative purposes, these funds may, at the discretion of the
State, be used for technical assistance and energy conservation grants
to eligible institutions within that State in accordance with this part.
(c) A State's administrative expenses shall be limited to those
directly related to administration of technical assistance programs and
energy conservation measures including costs associated with --
(1) Personnel, whose time is expended directly in support of such
administration;
(2) Supplies, and services, expended directly in support of such
administration;
(3) Equipment purchased or acquired solely for, and utilized directly
in support of such administration, provided that no single item of
equipment or other tangible personal property costing more than $500
shall be acquired without the prior written approval of DOE;
(4) Printing, directly in support of such administration; and
(5) Travel, directly related to such administration.
10 CFR 455.83 Subpart H -- State Plan Development and Approval
10 CFR 455.90 Contents of State plan.
Each State shall develop a State Plan for technical assistance
programs and energy conservation measures, including renewable resource
measures. The State Plan shall include --
(a) A statement setting forth the procedures by which the views of
eligible institutions or coordinating agencies representing such
institutions, or both, were solicited and considered during development
of the State Plan, and any amendment to a State Plan;
(b) The procedures the State will follow to notify eligible
institutions and coordinating agencies of the content of the approved
State Plan, or any approved amendment to a State Plan;
(c) The procedures for submittal of grant applications to the State;
(d) A description and evaluation of the results of preliminary energy
audits (described in Subpart B of this part) which have been conducted
in the State including, but not limited to --
(1) In the case of a State which has completed preliminary energy
audits of all potentially eligible buildings, a summary of the data
gathered pursuant to 455.18 for all such buildings;
(2) In the case of a State which has completed preliminary energy
audits of a sample of all potentially eligible buildings within the
State --
(i) Reasonably accurate estimates of the preliminary energy audit
data required by 455.18 for all potentially eligible buildings within
the State; and
(ii) A plan which describes further actions to be taken to complete
preliminary energy audits of all potentially eligible buildings;
(e) The procedures to be used by the State for evaluating and ranking
technical assistance and energy conservation measure grant applications
pursuant to 455.71, including the weights assigned to each criterion
set forth in 455.71(b). In addition, the State shall determine the
order of priority given to fuel types that include oil, natural gas, and
electricity, under 455.71(b)(3).
(f) The procedures that the State will follow to insure that funds
will be allocated equitably among eligible applicants within the State,
including procedures to insure that funds will not be allocated on the
basis of size or type of institution but rather on the basis of relative
need taking into account such factors as cost, energy consumption and
energy savings, in accordance with 455.71;
(g) The procedures that the States will follow for identifying
schools and hospitals experiencing severe hardship and for apportioning
the funds that are available for schools and hospitals in a case of
severe hardship. Such policies and procedures shall be in accordance
with 455.71(e);
(h) A statement setting forth the extent to which, and by which
methods, the State will encourage utilization of solar space heating,
cooling and electric systems and solar water heating systems;
(i) The procedures to assure that all financial assistance under this
part will be expended in compliance with the requirements of the State
Plan, in compliance with the requirements of this part, and in
coordination with other State and Federal energy conservation programs;
(j) The procedures to insure implementation of energy conservation
maintenance and operating procedures in those buildings for which
financial assistance is requested under this part. At a minimum, the
plan shall provide all maintenance and operating procedure changes
recommended in an energy audit report, the equivalent of an energy audit
report, an energy use evaluation, a technical assistance report, or a
combination of these that have been implemented as provided under this
part. An assurance that the maintenance and operating procedures will
be implemented in the future, or a justification for not implementing
such a procedure, as appropriate, may be acceptable in lieu of
implementation if it is shown that --
(1) The recommendation is infeasible because of factors not
considered by the auditor or analyst;
(2) There is a cost involved which exceeds the institution's limit in
operating expenditures, provided it is shown a budget request has been
made to implement the recommendation, and assurance is given that the
change will be effected at some specified future date;
(3) The implementation of the change requires some item of supply or
material which is not presently available; or
(4) Other factors subject to approval by the Secretary on a
case-by-case basis;
(k) The procedures designed to insure that financial assistance under
this part will be used to supplement, and not to supplant, State, local
or other funds;
(l) The circumstances under which the State will accept an energy use
evaluation in lieu of an energy audit, and the information the State
will require to be contained in that evaluation;
(m) The procedures for determining that energy audits performed
without the use of Federal funds have been performed in substantial
compliance with the eligibility requirements contained in 455.41(c);
(n) The procedures for determining that technical assistance programs
performed without the use of Federal funds have been performed in
compliance with the requirements of 455.42, for the purposes of
satisfying the eligibility requirements contained in 455.51(a)(3);
(o) The procedures for State management, monitoring and evaluation of
technical assistance programs and energy conservation measures receiving
financial assistance under this part;
(p) A description of the State's program for establishing and
insuring compliance with qualifications for technical assistance
analysts. Such policies shall require that technical assistance
analysts have experience in energy conservation and --
(1) Be a registered professional engineer licensed under the
regulatory authority of the State;
(2) Be an architect-engineer team, the principal members of which are
licensed under the regulatory authority of the State; or
(3) Be otherwise qualified in accordance with such criteria as the
State may prescribe in its State Plan to insure that individuals
conducting technical assistance programs possess the appropriate
training and experience in building energy systems. Such policies shall
also require that technical assistance analysts be free from financial
interests which may conflict with the proper performance of their
duties;
(q) A statement setting forth --
(1) An estimate of energy savings which may result from the
modification of maintenance and operating procedures and installation of
energy conservation measures;
(2) A recommendation as to the types of energy conservation measures
considered appropriate within the State; and
(3) An estimate of the costs of carrying out technical assistance and
energy conservation measures programs; and
(r) For purposes of the technical assistance program, 455.42, a
statement setting forth uniform conversion factors to be used in the
technical assistance analysis for conversion of fuels to Btu
equivalents.
10 CFR 455.91Submission and approval of State plans.
(a) Proposed State Plans or amendments necessitated by a change in
regulations shall be submitted to the Secretary within 90 days of the
effective date of this subpart or any amended regulations. The
Secretary, upon request and for good cause shown, may grant an extension
of time.
(b) The Secretary shall, within 60 days of receipt of a proposed
State Plan, review each plan and, if it is found to conform to the
requirements of this part, approve the State Plan. If the Secretary
does not disapprove a State Plan within the 60-day period, the Secretary
will be deemed to have approved the State Plan.
(c) If the Secretary determines that a proposed State Plan fails to
comply with the requirements of this part the Secretary shall return the
plan to the State with a statement setting forth the reasons for
disapproval.
(d) The Secretary shall review each amendment submitted by the State
and, if it is found to conform to the requirements of this part, approve
the amendment. If the Secretary determines that a proposed State Plan
amendment fails to comply with the requirements of this part, the
Secretary shall return the amendment to the State with a statement
setting forth the reasons for disapproval. With the consent of the
Secretary, the State may submit a new or amended plan at any time.
10 CFR 455.92State plans developed by the Secretary.
(a) If a State Plan has not been approved by February 7, 1981, or
within 90 days after completion of the preliminary energy audits,
whichever is later, the Secretary may develop and implement a State Plan
on behalf of the schools and hospitals in the State.
(b) Subsequent to the development of a State Plan by the Secretary,
the State may submit its own State Plan and the Secretary shall approve
or disapprove such plan within 60 days after receipt by the Secretary.
If the proposed plan meets the requirements of this part, and is not
inconsistent with any plan developed and implemented by the Secretary,
the Secretary shall approve the State Plan which shall automatically
replace the plan developed by the Secretary.
10 CFR 455.92 Subpart I -- Allocation of Appropriations Among the States
10 CFR 455.100Allocation of funds.
(a) The Secretary will allocate available funds among the States for
the purpose of awarding grants to schools, hospitals, units of local
government, and public care institutions and coordinating agencies to
implement technical assistance and energy conservation measures grant
programs in accordance with this part.
(b) The Secretary shall notify each Governor of the total amount
allocated for grants within the State for any grant program cycle --
(1) For schools and hospitals, the allocation amount shall be for
technical assistance programs, together with any limitation placed on
technical assistance, and energy conservation measures; and
(2) For units of local government and public care institutions, the
allocation amount shall be solely for technical assistance programs.
(c) The Secretary shall notify each Governor of the period for which
funds allocated for a grant program cycle will be made available for
grants within the State.
(d) Each State shall make available up to 10 percent of its
allocation for schools and hospitals in each grant program cycle to
provide financial assistance, not to exceed a 90 percent Federal share,
for technical assistance programs and energy conservation measures for
schools and hospitals determined to be in a class of severe hardship.
Such determinations shall be made in accordance with 455.71(e).
10 CFR 455.101Allocation formulas.
(a) Financial assistance for conducting technical assistance programs
for units of local government and public care institutions shall be
allocated among the States by multiplying the sum available by the
allocation factor set forth in paragraph (c) of this section.
(b) Financial assistance for conducting technical assistance programs
and acquiring and installing energy conservation measures including
renewable resource measures, shall be allocated among the States by
multiplying the sum available by the allocation factor set forth in
paragraph (c) of this section.
(c) The allocation factor (K) shall be determined by the formula --
where, as determined by DOE --
(1) Sfc is the projected average retail cost per million Btu's of
energy consumed within the region in which the State is located, as
contained in current regional energy cost projections obtained from the
Energy Information Administration.
(2) Nfc is the summation of the Sfc numerators for all States;
(3) N is the total number of eligible States;
(4) SP is the population of the State, as contained in the most
recent Bureau of the Census, Department of Commerce, Official Census
documents;
(5) SC is the sum of the State's heating and cooling degree days, as
contained in the National Oceanic and Atmospheric Administration's most
recent editions of ''State, Regional and National Monthly and Seasonal
Heating Degree Days, Weighted by Population;'' and ''State, Regional and
National Monthly and Seasonal Cooling Degree Days, Weighted by
Population;'' and
(6) NPC is the summation of the (SP)(SC) numerators for all States.
(d) Except for the District of Columbia, Puerto Rico, Guam, American
Samoa, the Commonwealth of the Northern Mariana Islands, and the Virgin
Islands, no allocation available to any State may be less than 0.5
percent of all amounts allocated in any grant program cycle. No State
will be allocated more than 10 percent of the funds allocated in any
grant program cycle.
10 CFR 455.102Reallocation of funds.
(a) If a State Plan has not been approved and implemented by a State
by the close of the period for which allocated funds are available as
set forth in the notice issued by the Secretary pursuant to 455.100(c),
funds allocated to that State for technical assistance and energy
conservation measures will be reallocated among all States for the next
grant program cycle, if available.
(b) If a State Plan has not been approved by February 7, 1981, or
within 90 days after completion of the preliminary energy audits,
whichever is later, the Secretary may develop and implement a State Plan
on behalf of the schools and hospitals within the State. If the
Secretary does not develop a State Plan for a State, the funds reserved
for that grant program cycle for schools and hospitals in that State
will be reallocated for the next grant program cycle among all States
for schools and hospitals.
(c) The Secretary shall reallocate the funds which remain unobligated
by DOE at the end of any grant program cycle among all States in the
next grant program cycle.
10 CFR 455.102 Subpart J -- Administrative Review
10 CFR 455.110Right to administrative review.
(a) A State shall have a right to file a notice requesting
administrative review of a decision under 455.83 by an Operations
Office Manager to disapprove an application for a grant award for State
administrative expenses subject to special conditions or a decision
under 455.91 of this part by an Operations Office Manager to disapprove
a State plan or an amendment to a State plan.
(b) A school, hospital, coordinating agency or State acting as an
institution's duly authorized agent shall have a right to file a notice
requesting administrative review of a decision under 455.82 by an
Operations Office Manager to disapprove an application for a grant award
to perform technical assistance programs or to acquire and install an
energy conservation measure if the disapproval is based on a
determination that --
(1) The applicant is ineligible, under 455.41 or 455.51 or for any
other reason;
(2) An energy use evaluation submitted in lieu of an energy audit,
pursuant to 455.20, is unacceptable under the State plan; or
(3) A technical assistance program equivalent performed without the
use of Federal funds does not comply with the requirements of 455.42
for purposes of satisfying the eligibility requirements of
455.51(a)(3).
10 CFR 455.111Notice requesting administrative review.
(a) Any applicant shall have 20 days from the date of receipt of a
decision under 455.110 to disapprove its application for a grant award
to file a notice requesting administrative review. If an applicant does
not timely file such a notice, the decision to disapprove shall become
final for DOE.
(b) A notice requesting administrative review shall be filed with the
Operations Office Manager and shall be accompanied by a written
statement containing supporting arguments.
(c) If the applicant is a State appealing pursuant to paragraph (a)
of 455.110, the State shall have the right to a public hearing. To
exercise that right, the State must request such a hearing in the notice
filed under paragraph (b) of this section. A public hearing under this
section shall be informal and legislative in nature.
(d) A notice or any other document shall be deemed filed under this
subpart upon receipt.
10 CFR 455.112Transmittal of record on review.
On or before 15 days from receipt of a notice requesting
administrative review which is timely filed, the Operations Office
Manager shall forward to the Deputy Assistant Secretary, the notice
requesting administrative review, the decision to disapprove as to which
administrative review is sought, a draft recommended final decision for
concurrence, and any other relevant material.
10 CFR 455.113Review by the Deputy Assistant Secretary.
(a) If a State requests a public hearing pursuant to paragraph (a) of
455.110, the Deputy Assistant Secretary, within 15 days, shall give
actual notice to the State and Federal Register notice of the date,
place, time, and procedures which shall apply to the public hearing.
Any public hearing under this section shall be informal and legislative
in nature.
(b) The Deputy Assistant Secretary shall concur in, concur in as
modified, or issue a substitute for the recommended decision of the
Operations Office Manager --
(1) With respect to a notice filed pursuant to paragraph (a) of
455.110, on or before 60 days from receipt of documents under 455.112
or the conclusion of a public hearing, whichever is later; or
(2) With respect to a notice filed pursuant to paragraph (b) of
455.110, on or before 30 days from receipt of documents under 455.112.
10 CFR 455.114 Discretionary review by the Assistant Secretary.
On or before 15 days from the date of receipt of the determination
under 455.113(b), the applicant for a grant award may file an
application, with a supporting statement of reasons, for discretionary
review by the Assistant Secretary. If administrative review is sought
pursuant to paragraph (a) of 455.110, the Assistant Secretary shall
send a notice granting or denying discretionary review within 15 days
and upon granting such review, shall issue a decision no later than 60
days from the date discretionary review is granted. If administrative
review is sought pursuant to paragraph (b) of 455.110, the Assistant
Secretary shall send a notice granting or denying discretionary review
within 10 days, and upon granting such review shall issue a decision no
later than 30 days from the date discretionary 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.
10 CFR 455.115Finality of decision.
A decision under 455.113 shall be final for DOE if there is no
review sought under 455.114. If there is review under 455.114, the
decision thereunder shall be final for DOE, and no appeal shall lie
elsewhere in DOE.
10 CFR 455.115 Pt. 456
10 CFR 455.115 PART 456 -- ENERGY CONSERVATION SERVICE PROGRAM
10 CFR 455.115 Subpart A -- General Provisions and Definitions
Sec.
456.101 Purpose and scope.
456.102 Petitions concerning conflicts of laws.
456.103 Appeals and other relief.
456.104 List of covered utilities.
456.105 Definitions.
456.106 (Reserved)
456.107 Termination.
10 CFR 455.115 Subpart B -- Preparation, Submission, and Approval of
State Plans and Temporary Programs
456.201 Scope.
456.202 Initial submission.
456.203 Notice, comment, and public hearing.
456.204 Procedures for submission and approval of State Plans.
456.205 Home heating suppliers.
456.206 Tennessee Valley Authority (TVA).
456.207 Temporary Programs.
456.208 Status of plans approved prior to CSRA.
10 CFR 455.115 Subpart C -- Content of State Plans
456.301 Scope.
456.302 Coverage of State Plan.
456.303 Procedures for enforcing compliance with State Plan.
456.304 State monitoring of utility supply, installation and
financing.
456.305 Program announcement.
456.306 Requirements for program audits.
456.307 -- 456.308 (Reserved)
456.309 Accounting and payment of costs.
456.310 Customer billing, repayment of loans, and termination of
service.
456.311 (Reserved)
456.312 Complaints processing and redress procedures.
456.313 Coordination.
456.314 Home heating suppliers.
456.315 Program measures.
456.316 Reporting and recordkeeping.
456.317 Quality assurance.
10 CFR 455.115 Subpart D -- Nonregulated Utility Plans
456.401 Scope.
456.402 Coverage.
456.403 Notice, comment, and public hearing.
456.404 Procedures for submission and approval of Nonregulated
Utility Plans.
456.405 Temporary Programs.
456.406 Content of plans.
10 CFR 455.115 Subpart E -- Supply, Installation, and Financing by
Utilities
456.501 Scope and definitions.
456.502 Prohibition.
456.503 Exemption for certain measures.
456.504 Exemption for utility subcontractor supply and installation.
456.505 Exemption for existing supply and installation.
456.506 Exemption for supply and installation authorized by State or
local law.
456.507 Waivers.
456.508 Notification.
456.509 Procedure for obtaining determination and waivers.
456.510 Appeals.
456.511 Certain exempt activities and compliance with accounting,
costing, billing, and repayment provisions.
10 CFR 455.115 Subpart F -- Federal Standby Authority and Enforcement
Provisions
456.601 Scope.
456.602 Conditions under which standby authority shall be invoked.
456.603 Standby authority in lieu of State Plans.
456.604 Standby authority for nonregulated utilities.
456.605 Failure to comply with orders.
456.606 Enforcement provisions; Penalties; Election of review
procedures.
10 CFR 455.115 Subparts G-I -- (Reserved)
10 CFR 455.115 Subpart J -- Residential Conservation Service Federal
Standby Plan
456.1000 Introduction.
456.1001 Definitions.
456.1002 Coverage of RCS Federal Standby Plan.
456.1003 Procedures for investigating and enforcing compliance with
the RCS Federal Standby Plan.
456.1004 -- 456.1005 (Reserved)
456.1006 Program announcement.
456.1007 Requirements for program audits.
456.1008 -- 456.1009 (Reserved)
456.1010 Accounting and payment of costs.
456.1011 Customer billing, repayment of loans, and termination of
service.
456.1012 (Reserved)
456.1013 Quality assurance.
456.1014 Qualification procedures for auditors.
456.1015 Home heating suppliers.
456.1016 Program measures.
456.1017 Supply, installation, and financing by utilities.
456.1018 Complaints processing procedures.
456.1019 Coordination.
456.1020 Reporting and recordkeeping.
456.1021 Information which a utility and participating home heating
supplier shall report to the Assistant Secretary.
456.1022 Exceptions.
456.1023 Waivers.
10 CFR 455.115 Subpart K -- Alternative State Plans
456.1101 Scope.
456.1102 Definitions.
456.1103 Content of plan.
456.1104 Incentives.
456.1105 Certification process.
456.1106 Reporting requirements.
456.1107 Procedures for administrative and judicial enforcement.
456.1108 Amendments.
10 CFR 455.115 Subpart L -- Utility Waiver Process
456.1201 Scope.
456.1202 Coverage.
456.1203 Approval process.
456.1204 Annual Report to Governor.
456.1205 Revocation procedures.
10 CFR 455.115 Subpart M -- Commercial Buildings and Multifamily
Dwellings
456.1301 Scope.
456.1302 Authority to continue plans.
456.1303 Reporting.
Appendix I to Part 456 -- Program Measures
Appendix II to Part 456 -- Prototypical House Assumptions
Appendix III to Part 456 -- Multifamily Applicability Criteria and
Procedures for Determining Usage Cutoff Levels
Authority: Part 1 of Title II of the National Energy Conservation
Policy Act, Pub. L. 95-619, 92 Stat. 3206 et seq. (42 U.S.C. 8211 et
seq.), as amended by Title V, Subtitle B of the Energy Security Act,
Pub. L. 96-294, 94 Stat. 611 et seq. and of the Conservation Service
Reform Act of 1986, Pub. L. 99-412; Department of Energy Organization
Act, Pub. L. 95-91, 91 Stat. 565 et seq. (42 U.S.C. 7101 et seq.).
Source: 52 FR 34143, Sept. 9, 1987, unless otherwise noted.
10 CFR 455.115 Subpart A -- General Provisions and Definitions
10 CFR 456.101Purpose and scope.
This part contains the regulations of the Energy Conservation Service
Program. This program is mandated by Titles II and VII of the National
Energy Conservation Policy Act (NECPA), Pub. L. 95-619 as amended by
Subtitle B of Title V of the Energy Security Act (ESA), Pub. L. 96-294,
and by Title I of the Conservation Service Reform Act of 1986 (CSRA),
Pub. L. 99-412.
10 CFR 456.102Petitions concerning conflicts of laws.
(a) A utility filing a petition to determine whether the utility --
(1) Is prohibited by a State or local law or regulation from taking
any action required to be taken under NECPA, or
(2) Is required or permitted by a State or local law or regulation to
take any action prohibited by NECPA, shall file the petition with the
Assistant Secretary for Conservation and Renewable Energy, Department of
Energy, 1000 Independence Avenue, SW., Washington, DC 20585. Any such
petition shall contain a copy of the applicable State or local laws or
regulations and a description of the action the utility believes it is
prohibited from taking or is permitted or required to take under such
laws or regulations.
(b) The Assistant Secretary shall give notice of the petition to the
Governor, State Energy Office, and State Regulatory Authority of the
applicable State, and such other persons as the Assistant Secretary
deems appropriate. Any such person or entity may file comments with the
Assistant Secretary with respect to such petition within 30 days of
receipt of the notice.
(c) If the Assistant Secretary determines pursuant to such petition
that a State or local law or regulation prohibits a utility from taking
any action required to be taken under NECPA or permits or requires a
utility to take any action prohibited by NECPA, the Assistant Secretary
shall issue an order superseding such State or local laws or regulations
to the extent the laws or regulations are inconsistent with NECPA. Such
an order shall be effective with respect to all utilities otherwise
subject to such State or local laws or regulations and shall moot any
outstanding petitions under this section by such utilities.
10 CFR 456.103Appeals and other relief.
(a) Any person seeking relief from the application of this rule,
except from Subparts K, L, and M of this part may submit a request for
relief in accordance with Subpart R of 10 CFR Part 205. When
applicable, such a request shall contain the approval of the Governor.
(b) Any person aggrieved by any order, finding, or determination made
under 456.102, 456.502-456.505, or 456.507 may appeal that order,
finding, or determination in accordance with Subpart H of 10 CFR Part
205. Any person so aggrieved has not exhausted his administrative
remedies until an appeal has been filed under Subpart H of 10 CFR Part
205 and an order granting or denying the appeal has been issued.
10 CFR 456.104List of covered utilities.
(a) Before the beginning of each calendar year, the Department of
Energy shall publish in the Federal Register a list of all covered
utilities for that calendar year.
(b) Not later than 60 days after publication of the list, each State
Regulatory Authority shall forward to the Assistant Secretary a copy of
such list with designations as to which covered utilities on the list
are under the jurisdiction of that Regulatory Authority.
(c) The publication of the list is for informational purposes, and
the failure to include a covered utility on the list or the failure of a
State Regulatory Authority to designate a covered utility subject to its
jurisdiction in no way affects the duties of or requirements upon such
covered utility under these rules or any plan promulgated pursuant to
these rules.
10 CFR 456.105Definitions.
For purposes of this part --
(a) Alternative State Plan. The term ''alternative State plan''
means a plan developed pursuant to Subpart K of this part.
(b) Assistant Secretary. The term ''Assistant Secretary'' means the
Assistant Secretary for Conservation and Renewable Energy of the U.S.
Department of Energy.
(c) Covered Utility. The term ''covered utility'' means in any
calendar year a public utility which during the second preceding
calendar year had either --
(1) Sales of natural gas for purposes other than resale which
exceeded 10 billion cubic feet, or
(2) Sales of electric energy for purposes other than resale which
exceeded 750 million kilowatt-hours.
(d) CSRA. The term ''CSRA'' means Title I of the Conservation
Service Reform Act of 1986, Pub. L. 99-412, which amended Part 1 of
Title II of the National Energy Conservation Policy Act (NECPA).
(e) Eligible Customer. The term ''eligible customer'' means a person
who owns or occupies a residential building or dwelling unit therein and
receives a bill or bills based on individually metered energy use from a
covered utility or participating home heating supplier for energy used
in such residential building or individual dwelling unit, except that --
(1) The owner of the common area within a residential building
containing five or more dwelling units shall not be treated as an
eligible customer for the purpose of the common area; and
(2) This definition shall not apply to any building which has five or
more dwelling units and which does not contain an individual meter for
heating or cooling energy sources used in such dwelling unit.
(f) Energy Conservation Measures. The term ''energy conservation
measures'' means the following measures in a residential building --
(1) Caulking. The term ''caulking'' means pliable materials used to
reduce the passage of air and moisture by filling small gaps which may
include (i) at fixed joints on a building, (ii) under baseboards inside
a building, (iii) in exterior walls at electric outlets, (iv) around
pipes and wires entering a building, and (v) around dryer vents and
exhaust fans in exterior walls. Caulking includes, but is not limited
to, materials commonly known as ''sealants,'' ''putty,'' and ''glazing
compounds.''
(2) Weatherstripping. The term ''weatherstripping'' means narrow
strips of material placed over or in movable joints of windows and doors
to reduce the passage of air and moisture.
(3) Furnace Efficiency Modifications. The term ''furnace efficiency
modification'' means --
(i) Replacement Furnaces or Boilers. The term ''replacement furnaces
or boilers'' means a furnace or boiler, including a heat pump, which
replaces an existing furnace or boiler of the same fuel type and which
reduces the amount of fuel consumed due to an increase in combustion
efficiency, improved heat generation, or reduced heat losses.
(ii) Furnace Replacement Burner (Oil). The term ''furnace
replacement burner (oil)'' means a device which atomizes the fuel oil,
mixes it with air, and ignites the fuel-air mixture, and is an integral
part of an oil-fired furnace or boiler including the combustion chamber,
and which, because of its design, achieves a reduction in the oil used
from that used by the device which it replaces.
(iii) Flue Opening Modification (Vent Damper). The term ''flue
opening modification (vent damper)'' means an automatically operated
damper installed in a gas-fired furnace which --
(A) Is installed downstream from the drafthood; and
(B) Conserves energy by substantially reducing the flow of heated air
through the chimney when the furnace is not in operation.
(iv) Intermittent Pilot Ignition Devices (IID). The term
''intermittent pilot ignition device (IID)'' means a device which, when
installed in a gas-fired furnace or boiler, automatically ignites the
gas burner and replaces a gas pilot light.
(4) Replacement Central Air Conditioner. The term ''replacement
central air conditioner'' means a central air conditioner which replaces
an existing central air conditioner of the same fuel type and which
reduces the amount of fuel consumed due to an increase in efficiency.
(5) Ceiling Insulation. The term ''ceiling insulation'' means a
material, primarily designed to resist heat flow, which is installed
between the conditioned area of a building and an unconditioned attic.
Where the conditioned area of a building extends to the roof, the term
''ceiling insulation'' also applies to such material used between the
underside and upperside of the roof. The term ''ceiling insulation''
also includes such material installed on the exterior of the roof.
(6) Wall Insulation. The term ''wall insulation'' means a material,
primarily designed to resist heat flow, which is installed within or on
the walls between conditioned areas of a building and unconditioned
areas of a building or the outside.
(7) Floor Insulation. The term ''floor insulation'' means a
material, primarily designed to resist heat flow which is installed
between the first level conditioned area of a building and an
unconditioned basement, a crawl space, or the outside beneath it. Where
the first level conditioned area of a building is on a ground level
concrete slab, the term ''floor insulation'' also means such material
installed around the perimeter of or on the slab. In the case of mobile
homes, the term ''floor insulation'' also means skirting to enclose the
space between the building and the ground.
(8) Duct Insulation. The term ''duct insulation'' means a material,
primarily designed to resist heat flow, which is installed on a heating
or cooling duct in an unconditioned area of a building.
(9) Pipe Insulation. The term ''pipe insulation'' means a material,
primarily designed to resist heat flow, which is installed on a heating
or cooling pipe in an unconditioned area of a building.
(10) Water Heater Insulation. The term ''water heater insulation''
means a material, primarily designed to resist heat flow, which is
suitable for wrapping around the exterior surface of the water heater
casing.
(11) Storm Window. The term ''storm window'' means a window or
glazing material placed outside or inside an ordinary or prime window,
creating an air space, to provide greater resistance to heat flow than
the prime window alone.
(12) Thermal Window. The term ''thermal window'' means a window unit
with improved thermal performance through the use of two or more sheets
of glazing material affixed to a window frame to create one or more
insulated air spaces. It may also have an insulating frame and sash.
(13) Storm Door. The term ''storm door'' means a second door,
installed outside or inside a prime door, creating an insulating air
space.
(14) Thermal Door. The term thermal door'' means --
(i) A door with enhanced resistance to heat flow through the glass
area by affixing two or more sheets of glazing material; or
(ii) A prime exterior door with an R-value of at least 2.
(15) Heat Reflective and Heat Absorbing Window or Door Material. The
term ''heat reflective and heat absorbing window or door material''
means a window or door glazing material with exceptional heat reflecting
or heat absorbing properties; or reflective or absorptive films and
coatings applied to an existing window or door which thereby result in
exceptional heat reflecting or heat absorbing properties.
(16) Devices Associated with Electric Load Management Techniques.
The term ''devices associated with electric load management techniques''
means devices that reduce the maximum kilowatt demand on an electric
utility and which are either --
(i) Part of a radio, ripple or other utility controlled load
switching system on the customer's premises;
(ii) Clock-controlled load switching devices on major appliances;
(iii) Interlocks, and other load actuated, load-limiting devices; or
(iv) Energy storage devices with control systems.
(17) Clock Thermostat. The term ''clock thermostat'' means a device
which is designed to reduce energy consumption by regulating the demand
on the heating or cooling system in which it is installed and which uses
--
(i) A temperature control device for interior spaces incorporating
more than one temperature control level, and
(ii) A clock or other automatic mechanism for switching from one
control level to another.
(g) Energy Conserving Practices. The term ''energy conserving
practices'' means low or no cost practices designated by the Governor in
a State Plan which save energy, do not require the installation of
energy conservation or renewable resource measures, and do not adversely
impact the RCS Program. Such practices may include, but are not limited
to --
(1) Furnace Efficiency Maintenance and Adjustments, which means
cleaning and combustion efficiency adjustment of gas or oil furnaces,
periodic cleaning or replacement of air filters on forced-air heating or
cooling systems, lowering the bonnet or plenum thermostats to 80 F. on
gas or oil forced-air furnaces, and turning off the pilot light on a gas
furnace during the summer;
(2) Nighttime Temperature Setback, which means manually lowering the
thermostat control setting for the furnace during the heating season to
a maximum of 55, during sleeping hours;
(3) Reducing Thermostat Settings in Winter, which means-limiting the
maximum thermostat control setting for the furnace to 68 F. during the
heating season;
(4) Raising Thermostat Setting in Summer, which means setting the
thermostat control for an air conditioner to 78 F. or higher during
the cooling season;
(5) Water Flow Reduction in Showers and Faucets, which means placing
a device in a shower head or faucet to limit the maximum flow to three
gallons per minute, or replacing existing shower heads or faucets with
those having built-in provisions for limiting the maximum flow to three
gallons per minute;
(6) Reducing Hot Water Temperatures, which means manually setting
back the water heater thermostat setting to 120 F., and reducing the
use of heated water for clothes washing;
(7) Reducing Energy Use When a Home is Unoccupied, which means
reducing the thermostat setting to 55 F. when a home is empty for four
hours or longer in the heating season, turning an air conditioner off in
the cooling season when no one is home, and turning a water heater off
when a home is vacant for two days or longer;
(8) Plugging Leaks in Attics, Basements, and Fireplaces, which means
(i) installing scrap insulation or other pliable materials in gaps
around pipes, ducts, fans, or other items which enter the attic or
basement from a heated space, (ii) installing fireproof material to plug
any holes around any damper in a fireplace, and (iii) adding insulation
to an attic or basement door;
(9) Sealing Leaks in Pipes and Ducts, which means installing caulking
in any leak in a heating or cooling duct, tightening or plugging any
leaking joints in hot water or steam pipes, and replacing washers in
leaking water valves; and
(10) Efficient Use of Shading, which means using shades or drapes (i)
to block sunlight from entering a building in the cooling season, (ii)
to allow sunlight to enter during the heating season, and (iii) to cover
windows tightly at night during the heating season.
(h) ESA. The term ''ESA'' means Subtitle B of Title V of the Energy
Security Act, Pub. L. 96-294, which amended Part 1 of Title II of the
National Energy Conservation Policy Act (NECPA).
(i) Governor. The term ''Governor'' means the Governor or chief
executive officer of a State or his designee; or, if a State agency is
specifically designated by State law to carry out any function under the
RCS Program, then the term ''Governor'' means that State agency for that
function.
(j) Home Heating Supplier. The term ''home heating supplier'' means
a person who sells or supplies home heating fuel (including No. 2
heating oil, kerosene, butane, and propane) to an eligible customer for
consumption in a residential building.
(k) Measure Warranties. (1) The term ''manufacturer's measure
warranty'' means, at a minimum, a written warranty by the manufacturer
of an energy conservation or renewable resource measure that the
eligible customer for whom the measure is installed, the installation
contractor who installs the measure, and the seller of the measure shall
be entitled to obtain, within a reasonable period of time and at no
charge, appropriate replacement parts or materials for those measures
found within one year from the date of installation to be defective due
to materials, manufacture, or design;
(2) The term ''supplier's measure warranty'' means, at a minimum, a
written warranty equivalent to that referred to in paragraph (1) of this
definition provided by the supplier of an energy conservation or
renewable resource measure to persons who purchase the measure from the
supplier;
(3) The term ''contractor's measure warranty'' means, at a minimum, a
written warranty by a contractor installing an energy conservation or
renewable resource measure that any defect in materials, manufacture,
design, or installation found within one year from the date of
installation shall be remedied without charge and within a reasonable
period of time.
(l) NECPA. The term ''NECPA'' means Part 1 of Title II of the
National Energy Conservation Policy Act, Pub. L. 95-619, as amended by
Subtitle B of Title V of the Energy Security Act (ESA) and by Title I of
the Conservation Service Reform Act of 1986 (CSRA).
(m) Nonregulated Utility. The term ''nonregulated utility'' means a
public utility which is not a regulated utility.
(n) Nonregulated Utility Plan. The term ''nonregulated utility
plan'' means a plan developed pursuant to Subpart D of this part.
(o) Participating Home Heating Supplier. The term ''participating
home heating supplier'' means a home heating supplier that has elected
to participate in a State Plan which includes home heating suppliers.
(p) Program Announcement. The term ''program announcement'' means
the RCS program information and offer of services required to be
provided by a covered utility or participating home heating supplier to
each eligible customer by 456.305.
(q) Program Audit. The term ''program audit'' means an audit in
which the estimates of costs and energy savings are based on an adequate
assessment, including actual measurements or inspections, as
appropriate, performed on-site by the auditor, of the building shell and
of the space heating, space cooling, and water heating equipment of the
residence of an eligible customer. In the case of residential buildings
containing more than four dwelling units, the program audit may mean an
audit in which the estimates of costs and energy savings are based on a
sampling of the types of units in the building.
(r) Program Information. The term ''program information'' means the
program announcement and any information dissemination activities
related to an RCS program.
(s) Program Measures. The term ''program measures'' means those
energy conservation or renewable resource measures which the Assistant
Secretary has by rule determined to be appropriate by climatic region
and fuel use category and which are found in Appendix I to this part, or
which are determined to be program measures by a Governor in accordance
with 456.315(b).
(t) Public Utility. The term ''public utility'' means any person,
State agency, or Federal agency which is engaged in the business of
selling natural gas or electric energy, or both to residential customers
for use in residential buildings.
(u) Rate. The term ''rate'' means any price, rate, charge, or
classification made, demanded, observed, or received with respect to
sales of electric energy or natural gas, any rule, regulation, or
practice respecting any such rate, charge or classification,'and any
contract pertaining to the sales of electric energy or natural gas.
(v) Ratemaking Authority. The term ''ratemaking authority'' means
authority to fix, modify, approve, or disapprove rates.
(w) RCS Program. The term ''RCS Program'' (Residential Conservation
Service Program) means the program required to be implemented by covered
utilities pursuant to an approved State Plan, an alternative State plan,
an approved Nonregulated Utility Plan, or a Federal Standby Plan.
(x) Regulated Utility. The term ''regulated utility'' means a public
utility with respect to whose rates a State regulatory authority has
ratemaking authority.
(y) Renewable Resource Measure. The term ''renewable resource
measure'' means the following measures in or with respect to a
residential building --
(1) Solar Domestic Hot Water Systems. The term ''solar domestic hot
water systems'' means equipment designed to absorb the sun's energy and
to use this energy to heat water for use in a residential building other
than for space heating, including thermostat hot water heaters.
(2) Active Solar Space Heating Systems. The term ''active solar
space heating systems'' means equipment designed to absorb the sun's
energy and to use this energy to heat living space by use of
mechanically forced energy transfer devices, such as fans or pumps.
(3) Combined Active Solar Space Heating and Solar Domestic Hot Water
System. The term ''combined active solar space heating and solar
domestic hot water system'' means equipment designed to perform both of
the functions described in paragraphs (1) and (2) of this definition.
(4) Wind Energy Devices. The term ''wind energy devices'' means
equipment that uses wind energy to produce energy in any form for
residential purposes.
(5) Replacement Solar Swimming Pool Heaters. The term ''replacement
solar swimming pool heaters'' means a device which uses the sun's energy
solely for the purpose of heating swimming pool water and which
displaces the use of a swimming pool heater using electricity, gas or
other fossil fuels.
(z) Residential Building. The term ''residential building'' means
any building used for residential occupancy which --
(1) Is not a new building to which final standards under section
304(a) of the Energy Conservation and Production Act apply; and
(2) Has a system for heating or cooling, or both.
(aa) Secretary. The term ''Secretary'' means the Secretary of
Energy.
(bb) State. The term ''State'' means a State, the District of
Columbia and Puerto Rico.
(cc) State Agency. The term ''State agency'' means a State, a
political subdivision thereof, or any agency or instrumentality of
either.
(dd) State Plan. The term ''State Plan'' means a plan developed
pursuant to Subpart B and C of this part.
(ee) State Regulatory Authority. The term ''State regulatory
authority'' means any State agency which has ratemaking authority with
respect to the sales of electric energy or natural gas by any public
utility (other than by such State agency), except that in the case of a
public utility with respect to which the Tennessee Valley Authority has
ratemaking authority, such term means the Tennessee Valley Authority,
(ff) TVA. The term ''TVA'' means the Tennessee Valley Authority.
456.106 (Reserved)
10 CFR 456.107Termination.
Effective June 30, 1989, in accordance with Section 228 of NECPA, all
authority, including the authority to enforce any prohibitions, under
this part shall terminate, except that such expiration shall not affect
any action or proceeding based upon an act committed prior to midnight
June 30, 1989, and not finally determined by such date. This section
shall not apply to Subpart M of this part
10 CFR 456.107 Subpart B -- Preparation, Submission, and Approval of State Plans and Temporary Programs
10 CFR 456.201Scope.
This subpart identifies the responsibilities of the States and the
Tennessee Valley Authority (TVA) in the preparation and submission of
State Plans; the procedures for approval of the State Plan by the
Assistant Secretary; and the procedures for submission and criteria for
approval of Temporary Programs.
10 CFR 456.202Initial submission.
If a State intends to submit a State Plan, the Governor shall submit
by January 6, 1980, a list of nonregulated covered utilities, if any,
operating in the State which will be subject to the State Plan.
10 CFR 456.203Notice, comment, and public hearing.
Prior to submission of the State Plan to the Assistant Secretary for
approval, the Governor shall provide for meaningful public notice, an
opportunity for public comment, and public hearing.
10 CFR 456.204Procedures for submission and approval of State Plans.
(a) Who shall submit. Three (3) copies of the proposed State Plan
shall be submitted to the Assistant Secretary by either:
(1) The Governor of the State; or
(2) The TVA with respect to all covered utilities over which the TVA
has ratemaking authority and, in the discretion of TVA, with respect to
any covered utility over which the TVA and another State Regulatory
Authority have ratemaking authority.
(b) Time for submission. The proposed State Plan shall be submitted
by June 4, 1980, unless the time for submission has been extended by the
Assistant Secretary, upon request of the Governor, for good cause shown.
(c) Approval. If a proposed State Plan meets the criteria of
Subparts B and C of this part, the Assistant Secretary shall approve it
within 90 days of the date the proposed State Plan was submitted.
(d) Disapproval. (1) If a proposed State Plan does not meet the
criteria of Subparts B and C of this part, the Assistant Secretary
shall, within 90 days of the date the proposed State Plan was submitted,
disapprove the proposed State Plan in writing and shall specify in
writing the grounds for disapproval.
(2) Within 60 days of the date of disapproval of a proposed State
Plan, or such longer period as the Assistant Secretary may determine,
for good cause shown, the Governor may submit another proposed State
Plan.
(e) Amendments. The Governor may submit proposed amendments to an
approved State Plan at any time. The Assistant Secretary shall approve
or disapprove a proposed amendment within 90 days of receipt of the
proposed amendment.
10 CFR 456.205Home heating suppliers.
If the Governor submits a plan applicable to home heating suppliers
in the State, it shall be a part of the State Plan and shall be
submitted in accordance with the procedures of this subpart applicable
to the submission of the State Plan.
10 CFR 456.206Tennessee Valley Authority (TVA).
In this part, except as otherwise specified, references to the
Governor shall be deemed to refer also to the TVA and references to the
State Plan shall be deemed to refer also to the TVA Plan. References in
this part to a State as a geographic area shall, with respect to the TVA
Plan, be referenced to the service areas of the covered utilities
subject to the TVA Plan. Reference in this part to a State as a
governmental entity (other than references to State laws or regulations)
or to any State Agency or officer shall be deemed to refer also to the
TVA.
10 CFR 456.207Temporary Programs.
(a) Definition of Temporary Program. A Temporary Program is a plan
or a part of a State Plan which exempts in whole or in part for a
specified period, to be determined by the Assistant Secretary, one or
more utilities from one or more of the following provisions --
(1) The requirements for preparing and distributing the Program
Announcement described in 456.305;
(2) The requirements for offering and performing, audits described in
456.306;
(3) The requirements concerning accounting and payment of costs
described in 456.309;
(4) The requirements regarding billing of costs, repayment of loans.
and termination of service described in 456.310; and
(5) The prohibition against supplying and installing by covered
utilities described in 456.502(a).
(b) Continuation. Temporary programs approved by the Secretary prior
to August 28, 1986, may be extended until such date as determined by the
Secretary.
(c) Federal Standby Authority. The Federal Standby Authority
described in Subpart F shall not be exercised with respect to a covered
utility which either --
(1) Is subject to an approved Temporary Program; or
(2) Was subject to an approved Temporary Program which has terminated
and such covered utility will be subject, within a reasonable time to be
determined by the Assistant Secretary, to an adequately implemented
approved State Plan or Nonregulated Utility Plan.
10 CFR 456.208Status of Plans Approved Prior to CSRA.
Any residential energy conservation plan approved by the Secretary
before August 28, 1986, shall continue as approved, provided
certification is made to the Secretary that --
(a) The plan will continue until June 30, 1989, and one more program
announcement will be made;
(b) The definition of ''residential building'' will be amended to
''any building used for residential occupancy which is not a new
building to which final standards under section 304(a) of the Energy
Conservation and Production Act apply and which has a system for heating
or cooling, or both; and
(c) Program coverage will include multi-family buildings containing
five or more units when the dwelling units are individually metered for
heating or cooling.
10 CFR 456.208 Subpart C -- Content of State Plans
10 CFR 456.301Scope.
This subpart prescribes the minimum requirements for the content of
State Plans. The State may include additional information and provide
additional requirements in the State Plan for the RCS Program if such
information and requirements are not specifically prohibited by these
rules or by any applicable law or regulation. All references in this
subpart to covered utilities apply to regulated and nonregulated covered
utilities subject to the State Plan.
10 CFR 456.302Coverage of State Plan.
(a) Regulated utilities. All regulated utilities providing utility
service in a State which meet the definition of ''covered utility'' in
456.105 shall be subject to the State Plan and shall be identified in
the State Plan.
(b) Nonregulated utilities. The State Plan shall identify which
nonregulated covered utilities, if any, are covered under the State
Plan.
(c) Home heating suppliers. The State Plan shall state whether it
includes an RCS Program for home heating suppliers.
(d) Temporary Programs. The State Plan shall identify any covered
utilities for which a request for a Temporary Program provision has been
submitted, and describe or attach such provision for each such utility.
10 CFR 456.303Procedures for enforcing compliance with State Plan.
(a) For the purposes of this section the term ''RCS participant''
means any person or entity directly governed by the State Plan,
including covered utilities, and participating home heating suppliers.
(b) The State Plan shall require each RCS participant to comply with
the State Plan.
(c) The State Plan shall contain adequate procedures for enforcing
compliance with the State Plan by each RCS participant.
10 CFR 456.304State monitoring of utility supply, installation, and
financing.
The State Plan shall --
(a) Contain procedures to ensure that covered utilities which supply,
install or finance the sale or installation of energy conservation or
renewable resource measures shall --
(1) Charge fair and reasonable prices and interest rates, which shall
be determined by periodic review of comparative prices and interest
rates by a State designated agency;
(2) Conduct such activities in a manner which does not have a
substantial adverse effect upon competition or involve the use of
unfair, deceptive, or anticompetitive acts of practices;
(3) When undertaking to finance a lending program for such measures
through financial institutions, seek funds for such financing from
financial institutions located throughout the area covered by the
lending program (to the extent each such utility determines feasible,
consistent with good business practice, and not disadvantageous to its
customers); and
(4) Meet the requirements of 456.504 if they undertake supply or
installation activities under 456.504.
(b) Require any utility undertaking a program involving the supply or
installation of any energy conservation or renewable resource measure as
permitted by 456.504, or providing financing for the purchase or
installation of any such measure, to notify the Assistant Secretary when
such program becomes effective.
10 CFR 456.305Program announcement.
(a) Distribution and content. The State Plan shall require each
covered utility and each participating home heating supplier to provide
each eligible customer, no later than six months after approval of the
State Plan and every two years thereafter, but not more than once during
the period from August 28, 1986 to June 30, 1989, with the following:
(1) A list of the program measures for the category of residential
buildings owned or occupied by such eligible customer.
(2) A reasonable estimate (or range of estimates) of the savings in
energy costs for a specified period of time which are likely to result
from installation of each of the program measures in a typical building
or buildings in such category.
(3) A list of the energy conserving practices which shall be
developed by the Governor. Such practices may include the practices
defined in 456.105.
(4) A reasonable estimate (or range of estimates) of the savings in
energy costs for a specified period of time which are likely to result
from the adoption of the practices, individually or as a group.
(5) An offer to perform the service required to be offered under
456.306 (Program Audits) and a description of the service. The offer of
the program audit may be conditioned upon a nondiscriminatory factor
such as serving one geographic area at a time or serving a certain type
of energy user first.
(b)(1) The State Plan shall specify whether a covered utility or
participating home heating supplier is permitted or prohibited from
including with the program information any advertising for the sale,
installation or financing by any supplier, contractor, or lender
(including the covered utility) of any program measure.
(2) If advertising is permitted, the State Plan shall contain
procedures to ensure that such advertising does not unfairly
discriminate against any person.
(c) Calculation procedures. The State Plan shall, with respect to
estimates of the savings required under 456.305(a)(2), describe the
procedures by which such estimates shall be made.
(d) New customers. (1) A new customer is a person who becomes an
eligible customer after a distribution of the Program Announcement but
before June 30, 1989.
(2) The State Plan shall require,that each covered utility and
participating home heating supplier provide each new customer within 60
days of such customer becoming a new customer with the information
required in 456.305(a).
(3) The State shall require that a covered utility or participating
home heating supplier retain in its files for not less than five years a
copy of each report of each program audit performed pursuant to the
State Plan which shall be available to any subsequent owner without
charge. The State Plan shall require that a covered utility or
participating home heating supplier inform each subsequent eligible
customer who is an owner of a residential building, or dwelling unit
therein, of the availability of this report.
(e) The State Plan shall prohibit unfair discrimination among
measures, eligible customers, suppliers, contractors, and lenders in the
content of, and in the providing of, information required under this
section.
10 CFR 456.306Requirements for program audits.
(a) Timing of program audit. The State Plan shall require that each
covered utility participating home heating supplier shall provide a
program audit to each eligible customer within a reasonable time after
the request for an audit.
(b) Content of program audit. (1) The State Plan shall describe the
program audit services to be offered by utilities and participating home
heating suppliers and shall require at a minimum that covered utilities
and participating home heating supplier provide (either directly or
through one or more auditors under contract), upon request, to each
eligible customer a program audit which addresses the applicable program
measures and identifies the applicable energy conserving practices which
shall be developed by the Governor. Such practices may include those
practices defined in 456.105.
(2) The State Plan may allow the auditor in each program audit to
determine the applicability of each program measure in that residence
based on applicability criteria set forth in the State Plan subject to
DOE approval; and, in the case of residential buildings containing more
than four dwelling units, based on either the above or DOE applicability
criteria and usage cut-off procedures, as set forth in Appendix III. If
a program measure is not applicable, then the requirements of this
section to provide estimates of the cost and savings of installation of
such measure in such residence do not apply.
(3) The State Plan shall contain procedures to assure the validity of
the program audit with respect to all program measures.
(4) The State Plan shall require the auditor to offer at the time of
the audit to provide the customer at a minimum with a written sample of
the typical format of the audit results and a brief explanation of how
to interpret such results.
(5) The State Plan shall allow auditors to perform a program audit
only for those measures or products approved by the Governor.
(c) Results of program audit. (1) The State Plan shall require that
the utility provide the following information in writing to each
eligible customer who receives a program audit --
(i) An estimate of the total cost, expressed in dollars or a range of
dollars, of installation by a contractor of each applicable program
measure as designated in the Table of Program Measures (Appendix I);
(ii) An estimate of the total cost, expressed in dollars or a range
of dollars, of purchase by the customer of each applicable program
measure as designated in the Table of Program Measures (Appendix I);
(iii) An estimate of the energy savings, expressed in dollars or a
range of dollars, of each applicable program measure addressed by the
program audit.
(2) The State Plan shall require any utility which does not provide
in-person results of audits to provide customers with the opportunity to
discuss the results of the audit with a qualified person.
(3) The State Plan shall allow utilities to provide audit results
only for those measures or products approved by the Governor.
(d) Prohibitions. (1) The State Plan shall prohibit covered
utilities and participating home heating suppliers from discriminating
unfairly among eligible customers in providing program audits.
(2) The State Plan shall prohibit any auditor from recommending any
supplier, contractor, or lender who supplies, installs, or finances the
sale or installation of any program measure if such recommendation would
unfairly discriminate among such suppliers, contractors, or lenders.
(3) The State Plan shall prohibit any unfair discrimination among
program measures.
(e) Program audits of furnaces. The State shall require that, in
order for an auditor of a covered utility or participating home heating
supplier to provide cost and savings estimates for furnace efficiency
modifications with respect to a furnace which uses as its primary source
of energy any fuel or source of energy other than the fuel or source of
energy sold by that covered utility or participating home heating
supplier, the eligible customer must request such audit in writing.
(f) Qualifications for program auditors. The State Plan shall
require that each person who performs a program audit pursuant to the
State Plan shall be qualified to perform the necessary measurements and
inspections to determine the estimated cost of purchasing and installing
the recommended program measures and the savings in energy costs that
are likely to result from the installation of such measures.
456.307 -- 456.308 (Reserved)
10 CFR 456.309Accounting and payment of costs.
(a) Accounting. The State Plan shall require with respect to
Federally mandated measures, and may permit with respect to costs or
revenues directly associated with State measures, that all amounts
expended or received by a covered utility which are attributable to the
RCS Program, including any penalties paid under Subpart F (Federal
Standby Authority), shall be accounted for on the books and records
separately from amounts attributable to all other activities of the
covered utility.
(b) Payment of costs. The State Plan shall require that covered
utilities treat costs as described below and shall describe how the
costs described in paragraph (b)(2) of this section will be treated:
(1) All amounts expended by a covered utility in providing the
information required under 456.305(a) and in conducting all public
education and program promotion directly related to providing
information about a utility's RCS Program shall be treated as a current
expense of providing utility service and be charged to all ratepayers of
the covered utility in the same manner as other current operating
expenses of providing such utility service;
(2) The cost of the following program elements shall be recovered in
the manner specified by the State regulatory authority (in the case of a
regulated utility) or the nonregulated utility (except that the amount
that may be recovered directly from a residential customer for whom the
activities described in 458.309(b)(2)(ii) are performed shall not
exceed a total of $15 per dwelling unit or the actual cost of such
activities, whichever is less);
(i) Administrative and general expenses, including those associated
with program audits and customer billing services, and
(ii) Project management requirements, including the providing of
program audits; and
(3) In determining the amount to be recovered directly from customers
as provided in paragraph (b)(2) of this section, the State regulatory
authority (in the case of a regulated utility) or the nonregulated
utility shall take into consideration, to the extent practicable, the
eligible customers' ability to pay and the likely levels of
participation in the utility program which will result from such
recovery.
(c) Duplication of audits. (1) In areas where a residential customer
is an eligible customer of more than one covered utility, the Governor,
or the covered nonregulated utility, as appropriate, may include in a
State Plan or a Nonregulated Utility Plan procedures to ensure that each
eligible customer may receive an RCS audit from only one of these
covered utilities.
(2) No utility should be required to make more than one audit of a
residential building or dwelling unit therein unless a new owner
requests a subsequent audit.
10 CFR 456.310Customer billing, repayment of loans, and termination of
service.
The State Plan shall require that --
(a) Customer billing. Every charge by a covered utility or a
participating home heating supplier to a customer for any portion of the
costs of carrying out any activity pursuant to the State Plan that is
charged to the residential customer for whom such activity is performed
(including repayment of a loan) and that is included on a billing for
utility service submitted by the utility or home heating supplier to
such residential customer shall be stated separately on such billing
from the cost of providing utility or fuel service. Nothing in this
paragraph shall be construed so as to require that charges to the
customer for activities performed pursuant to the State Plan must be
included on the bill for periodic utility service.
(b) Repayment of loans. (1) In the case of any loan by a covered
utility, the utility, with the approval of the customer, shall permit
repayment of the loan as part of the periodic utility bill.
(2) In the case of any loan for the purchase or installation of
program measures made by a participating home heating supplier under the
RCS Program --
(i) The participating home heating supplier shall permit the eligible
customer to include repayment of the loan in such customer's payment of
his periodic fuel bill over a period of not less than three years,
unless the eligible customer chooses a shorter repayment period;
(ii) A lump-sum payment of outstanding principal and interest may be
required by the lender upon default in payment (as determined under
applicable law) from the eligible customer; and
(iii) No penalty shall be imposed by a home heating supplier for
payment of all or any portion of the outstanding loan amount prior to
the date such payment would otherwise be due.
(c) Termination of service. No covered utility or participating home
heating supplier shall terminate utility or fuel service to any customer
for any default by such customer for payments due for any services under
the RCS Program.
456.311 (Reserved)
10 CFR 456.312Complaints processing and redress procedures.
The State Plan shall contain procedures --
(a) For resolving complaints against persons who sell or install
energy conservation or renewable resource measures under the RCS
Program; and
(b) To assure that any person who alleges any injury resulting from a
violation of any State Plan provision shall be entitled to redress.
10 CFR 456.313Coordination.
The State Plan shall provide procedures to ensure effective
coordination between the RCS Program and all local, State, and Federal
energy conservation programs within and affecting the State.
10 CFR 456.314Home heating suppliers.
(a) Consideration of limited resources. If a State Plan covers home
heating suppliers, it shall, within the terms of the requirements of
this subpart, take into account the limited resources of small home
heating suppliers.
(b) Participation and withdrawal. The State Plan, if it includes
home heating suppliers, shall include a procedure by which the Governor
shall allow a home heating supplier to participate in the RCS Program.
The State Plan shall also allow a home heating supplier to withdraw
voluntarily from the RCS Program.
(c) Waiver of requirements. The State Plan shall contain a procedure
by which the Governor may waive for any participating home heating
supplier any requirement of the State Plan, except those listed below,
upon a demonstration to the Governor's satisfaction that the resources
of such supplier do not enable it to comply with the particular
requirement. The requirements which the Governor shall not waive are
the following sections which prohibit anticompetitive activities or
unfair discrimination by covered utilities or participating home heating
suppliers --
(1) Section 456.306(c) (Prohibitions concerning program audits); and
(2) Section 456.306(d) (Furnace audits).
10 CFR 456.315Program measures.
(a) The State Plan shall contain a list of the program measures.
This list shall contain either those energy conservation and renewable
resource measures identified in Appendix I to this rule as program
measures for that State, or a list of energy conservation and renewable
resource measures determined to be program measures by the Governor in
accordance with paragraph (b) of this section.
(b)(1) The Governor may exclude from the State RCS Program, any
program measure identified in Appendix I as a program measure for that
State on the following bases:
(i) When, by substituting State derived data, the program measure has
a payback period (P) of more than seven years, as determined by dividing
the installed first cost (F) less any Federal and State (at the
discretion of the Governor) tax credits (T), by the first year energy
savings in dollars (S),
(ii) When, by substituting a State specific prototypical house, it is
determined that the program measure has a payback period (P) of more
than seven years pursuant to the formula in paragraph (b)(1)(i) of this
section.
(2) The State Plan shall contain data to substantiate any exclusion
pursuant to paragraphs (b)(1) (i) or (ii) of this section.
(c) The Governor may add any measure not identified in Appendix I as
a program measure for that State, to the State RCS Program without DOE
approval.
10 CFR 456.316Reporting and recordkeeping.
(a) The State Plan shall contain provisions to assure that a report
is submitted to the Assistant Secretary no later than July 1, 1982, and
annually thereafter through June 30, 1989, covering the twelve-month
period ending the preceding April 1.
(b)(1) The report shall include --
(i) The number of energy audits requested, and/or provided;
(ii) The nature and status of any direct financing activities or
exempted or waived supply or installation activities engaged in by the
utilities;
(iii) Estimated State costs and utility costs of implementing the
program; and
(iv) The general nature and approximate number of complaints received
about the program and the operation of the complaints processing
procedures of 456.309 in the State.
(2) The report shall also contain a copy of any program announcement
not already provided.
(c) The State Plan shall contain procedures to assure that a copy of
the data collected during each audit and a copy of the costs and savings
presented to the customer receiving the audit are retained on file for
five years from the date of the audit.
(d) Any other provisions of this section notwithstanding, the
Assistant Secretary may, as he deems essential to Departmental
implementation of program responsibilities and subject to approval of
OMB under the provisions of the Paperwork Reduction Act (Pub. L.
96-511) --
(1) Require additional information; and
(2) Waive any reporting and recordkeeping requirements, except the
recordkeeping requirements in paragraph (c) of this section.
10 CFR 456.317Quality assurance.
The State Plan shall contain procedures to ensure that reasonable
levels of effectiveness and safety are maintained in the supply and
installation of measures under the RCS Program.
10 CFR 456.317 Subpart D -- Nonregulated Utility Plans
10 CFR 456.401Scope.
This subpart identifies the responsibilities of covered nonregulated
utilities not subject to a State Plan for the preparation and submission
of Nonregulated Utility Plans, the procedures for approval of
Nonregulated Utility Plans by the Assistant Secretary, and the minimum
requirements for the content of Nonregulated Utility Plans.
10 CFR 456.402Coverage.
This subpart shall apply to all nonregulated utilities which are not
covered by a State Plan.
10 CFR 456.403Notice, comment, and public hearing.
Prior to submission of the Nonregulated Utility Plan to the Assistant
Secretary for approval, the nonregulated utility shall --
(a) Notice and comment. Provide meaningful public notice of the
requirement for the nonregulated utility to submit a Nonregulated
Utility Plan.
(b) Hearing. Hold at least one public hearing in the nonregulated
utility's service area for the purpose of hearing testimony and
receiving comments on the content of the proposed Nonregulated Utility
Plan.
10 CFR 456.404Procedures for submission and approval of Nonregulated
Utility Plans.
(a) Submission. Each utility subject to this subpart shall submit to
the Assistant Secretary a proposed Nonregulated Utility Plan by June 4,
1980, unless the time for submission has been extended by the Assistant
Secretary for good cause shown upon request, of the nonregulated
utility.
(b) Approval. If a proposed Nonregulated Utility Plan meets the
criteria of this subpart, the Assistant Secretary shall approve it
within 90 days of the date the proposed Nonregulated Utility Plan was
submitted.
(c) Disapproval. (1) If a Nonregulated Utility Plan does not meet
the criteria of this subpart, the Assistant Secretary shall, within 90
days of the date the proposed Nonregulated Utility Plan is submitted,
disapprove the proposed Nonregulated Utility Plan and specify in writing
grounds for disapproval.
(2) Within 60 days of the date of disapproval of a proposed
Nonregulated Utility Plan, or such longer period as the Assistant
Secretary may determine pursuant to the criteria of paragraph (a) of
this section, the nonregulated utility shall submit another proposed
Nonregulated Utility Plan.
(d) Amendments. The nonregulated utility may submit proposed
amendments to an approved Nonregulated Utility Plan at any time. The
Assistant Secretary shall approve or disapprove a proposed amendment
within 90 days of receipt of the proposed amendment.
10 CFR 456.405Temporary Programs.
A nonregulated utility may operate a Temporary Program as defined in
456.207(a) in accordance with the provisions of 456.207.
10 CFR 456.406Content of plans.
(a) General requirements. (1) Except as provided in this section,
each Nonregulated Utility Plan shall meet all the requirements for State
Plans in Subpart C.
(2) Except as otherwise provided in this section, all references in
Subpart C to --
(i) Covered utilities shall be deemed to refer to utilities subject
to this subpart;
(ii) A State Plan shall be deemed to refer to a Non-Regulated Utility
Plan;
(iii) Participating home heating suppliers shall not apply;
(iv) A State (as a governmental entity, other than references to
State laws or regulations) or any State Agency or officer shall be
deemed to refer to the nonregulated utility submitting the Plan; and
(v) A State (as a geographic area) shall be deemed to refer to the
nonregulated utility's service area.
(b) Utilizing State services. (1) In a State submitting a State
Plan, a nonregulated utility may, by written understanding with the
appropriate State agency, utilize services which have been provided for
in the State Plan.
(2) If a Nonregulated Utility Plan utilizes services as permitted by
this paragraph, all references in the State Plan to those services with
regard to utilities subject to the State Plan shall be deemed to refer
to the nonregulated utility.
(3) If a Nonregulated Utility Plan proposes to utilize any of the
services pursuant to this paragraph, the Plan shall so state and copies
of the written agreements with the appropriate State agencies shall be
included with the Nonregulated Utility Plan in the submission to the
Assistant Secretary.
10 CFR 456.406 Subpart E -- Supply, Installation, and Financing by Utilities
10 CFR 456.501Scope and definitions.
(a) This subpart contains the prohibition against a utility's supply
and installation of energy conservation and renewable resource measures.
It specifies the exemptions to this prohibition and the procedures,
where applicable, for obtaining these exemptions. It also sets forth
certain requirements concerning utility financing programs.
(b) For purposes of this subpart -- (1) A ''covered utility'' means a
covered utility, any company which is owned or controlled by such a
utility, or any company which owns or controls such a utility:
(2) A covered utility ''installs'' a measure whenever the contract
for installation obligates the covered utility to install the measure;
(3) A covered utility ''supplies'' a measure when it sells a measure
at retail or leases a measure to an eligible customer; and
(4) A covered utility ''finances'' the supply or installation of a
measure when the loan contract names the utility as the lender.
10 CFR 456.502Prohibition.
(a) Except as provided in this subpart, no covered utility may supply
or install any energy conservation or renewable resource measure.
(b) Notwithstanding 456.503-456.507, no covered utility may supply,
install, or finance the supply or installation of any energy
conservation or renewable resource measure if the Federal Trade
Commission, pursuant to Section 216(h) of NECPA, or a State regulatory
authority, pursuant to State law, has determined that such activity
involves --
(1) Charging unfair or unreasonable prices or rates of interest with
respect to the supply and installation of residential energy
conservation measures; or
(2) Engaging in unfair methods of competition or unfair or deceptive
acts or practices with respect to such supply and installation.
(c) Violations of this section are subject to a civil penalty of not
more than $25,000 for each day of violation assessed by order of the
Assistant Secretary pursuant to Section 216(h) and 219 of NECPA and
456.606 of these rules.
10 CFR 456.503Exemption for certain measures.
The prohibition in 456.502(a) shall not apply to the supply or
installation of (a) furnace efficiency modifications, (b) clock
thermostats, and (c) devices associated with load management techniques
for the type of energy sold by the utility.
10 CFR 456.504Exemption for utility subcontractor supply and
installation.
(a) The prohibition contained in 456.502(a) shall not apply to any
energy conservation measure or renewable resource measure supplied or
installed by a public utility through contracts between such utility and
independent suppliers or contractors where the customer requests such
supply and installation and each supplier or contractor --
(1) Is not subject to the control of the public utility, except as to
the performance of such contract, and is not an affiliate or a
subsidiary of such utility; and
(2) If selected by the utility, is selected in a manner consistent
with 456.504(b).
(b) Activities of a public utility conducted pursuant to paragraph
(a)(2) of this section --
(1) May not involve unfair methods of competition;
(2) May not have a substantial adverse effect on competition in the
area in which such activities are undertaken nor result in providing to
any supplier or contractor an unreasonably large share of contracts for
the supply or installation of energy conservation or renewable resource
measures;
(3) Shall be undertaken in a manner that provides, subject to
reasonable conditions the utility may establish to ensure the quality of
supply and installation of energy conservation or renewable resource
measures, that any financing by the utility of such measures shall be
available to finance the supply or installation by any contractor or to
finance the purchase of such measures to be installed by the customer;
(4) Shall be undertaken, to the extent practicable and consistent
with paragraphs (b)(1)-(3) of this section, in a manner that minimizes
the cost of energy conservation and renewable resource measures to such
customers; and
(5) Shall include making available upon request a current estimate of
the average price of supply and installation of energy conservation and
renewable resource measures subject to the contracts entered into by the
public utility under paragraph (a) of this section.
(c) Before a utility can undertake a supply or installation program
permitted by this section, the State Plan must contain procedures to
ensure that such a program will be undertaken in full compliance with
requirements described in paragraphs (a) and (b) of this section.
10 CFR 456.505Exemption for existing supply and installation.
(a) The prohibition in 456.502(a) shall not apply to any supply or
installation of any energy conservation or renewable resource measure in
which the covered utility was engaged on November 9, 1978 --
(1) During such time as applications for determinations with respect
to such activities, filed in accordance with 456.509, are pending; and
(2) Upon a final determination that, on or by November 9, 1978, such
energy conservation or renewable resource measure was being supplied or
installed by the utility seeking such determination.
(b) The prohibition in 456.502(a) shall not apply to any supply or
installation of any energy conservation or renewable resource measure
which the covered utility had by November 9, 1978, broadly advertised
that it would supply or install, or with respect to which the utility
had by November 9, 1978, completed substantial preparations for
supplying or installing --
(1) During such time as applications for determinations with respect
to such activity filed in accordance with 456.509 are pending; and
(2) Upon a final determination that, on or by November 9, 1978, such
energy conservation or renewable resource measure had been broadly
advertised or for which substantial preparations had been completed by
the utility seeking such determination.
(c) Effective July 1, 1987, paragraphs (a) and (b) shall not apply to
the supply or installation of residential energy conservation measures
other than measures which the Secretary determines, pursuant to a
request by a covered utility with supporting documentation, were being
installed or supplied during the 12 month period ending June 1, 1985.
10 CFR 456.506Exemption for supply and installation authorized by State
or local law.
(a) The prohibition in 456.502(a) shall not apply to any supply or
installation of any energy conservation or renewable resource measure --
(1) In which a State or local law or regulation in effect on November
9, 1978, required or explicitly permitted a covered utility to engage;
or
(2) Which the Attorney General of the appropriate State certifies to
the Assistant Secretary was intended by a State law or regulation in
effect on November 9, 1978, to be required or permitted.
(b) A covered utility is exempt from any Federal requirement to
include in its RCS Program any supply or installation of any energy
conservation or renewable resources measure in which it is engaged by
reason of a State law or regulation in effect prior to November 9, 1978,
permitting or requiring such activities. However, a covered utility
that includes supply and installation in its RCS Program pursuant to the
exemption in paragraph (a) of this section shall be subject to all the
requirements of the State Plan with respect to those activities in the
same manner as any contractor, supplier, or lender, except that it shall
be exempt from the requirements of 456.309 (Accounting and Payment of
Costs) and 456.310 (Customer Billing, Repayment of Loans, and
Termination of Service) with respect to such activities.
10 CFR 456.507Waivers.
(a) The Assistant Secretary may waive any prohibition of 456.502(a)
upon petition by a covered utility pursuant to 456.509 and a finding
that --
(1) The petition, in the case of a covered utility subject to a State
Plan, is supported by the Governor; and
(2) If such waiver were granted --
(i) Fair and reasonable prices and rates of interest would be
charged; and
(ii) The otherwise prohibited activities would not involve or result
in unfair or deceptive acts or practices.
(b) Before the Assistant Secretary makes the finding described in
paragraph (a)(2)(i) of this section, he or she shall consult with the
Federal Trade Commission.
10 CFR 456.508 Notification.
Each utility undertaking a program involving the supply or
installation of any energy conservation or renewable resource measure as
permitted under 456.504, or providing financing for the purchase or
installation of any such measure, must notify the Assistant Secretary
when such program becomes effective.
10 CFR 456.509 Procedure for obtaining determinations and waivers.
(a) A utility making an application for a determination under
456.505 or a petition for a waiver under 456.507 shall file such
application or petition clearly labeled as such with the Assistant
Secretary for Conservation and Renewable Energy, Department of Energy,
1000 Independence Avenue, SW., Washington, DC 20585. All such petitions
shall contain all information necessary for the determination under
456.505 or the findings required by 456.507.
(b) In addition to any other requirement that may be applicable, any
utility making an application or petition under this section shall give
direct notice to the Governor, State Energy Office, and State Regulatory
Authority of any State in which such exemption or waiver would be
applicable, informing them that they may within ten days submit comments
on the application or petition to the Assistant Secretary. The
application or petition filed with the Assistant Secretary shall include
a certification that the applicant or petitioner has complied with the
requirements of this paragraph. In the discretion of the Assistant
Secretary, opportunity to comment may be provided to other interested
persons.
10 CFR 456.510 Appeals.
Any person adversely affected by any decision made pursuant to this
subpart by the Assistant Secretary may appeal that decision in
accordance with Subpart H of 10 CFR Part 205. All such appeals shall be
filed with the Office of Hearings and Appeals, Department of Energy,
Washington, DC 20585.
10 CFR 456.511 Certain exempt activities and compliance with
accounting, costing, billing, and repayment provisions.
Any covered utility conducting activities pursuant to the exemptions
provided for in 456.503, 456.504 or 456.505(b) or the waiver
provisions of 456.507 shall comply with the requirements of 456.309
(a), (b)(2), and (b)(3), and 456.310 with respect to those activities.
Any covered utility carrying out activities pursuant to the exemptions
provided for in 456.505(a) shall, within such reasonable time as the
Secretary prescribes, comply with the requirements of 456.309 (a),
(b)(2), and (b)(3), and 456.310 with respect to such activities.
10 CFR 456.511 Subpart F -- Federal Standby Authority and Enforcement Provisions
10 CFR 456.601 Scope.
This subpart specifies the procedures to be followed to ensure that
eligible customers receive the services of the Residential Conservation
Service Program when a State or nonregulated utility does not submit an
acceptable Residential Conservation Service Plan within the necessary
time or fails to implement adequately an approved RCS or Alternative
plan. These procedures are required to be implemented by the Secretary
pursuant to the provisions of section 219 of NECPA. All of the
Secretary's responsibilities under this subpart, except for the
authority to bring actions in any court of the United States, have been
delegated to the Assistant Secretary. Section 456.602 specifies the
conditions under which the Assistant Secretary shall invoke standby
authority for covered regulated utilities and covered nonregulated
utilities. Sections 456.603 and 456.604 specify the content of the
Federal plans for States and nonregulated utilities, respectively.
Section 456.605 specifies the procedures to be followed by the Secretary
if a public utility fails to comply with a Federal standby order issued
pursuant to 456.603 or 456.604. Section 456.606 specifies the civil
penalties which the Assistant Secretary may assess and the enforcement
provisions.
10 CFR 456.602 Conditions under which standby authority shall be
invoked.
The Assistant Secretary shall invoke standby authority if he
concludes:
(a) That a State fails to submit a Residential Conservation Service
Plan meeting the requirements of Subparts B and C by September 2, 1980,
or within such additional period as the Assistant Secretary allows
pursuant to 456.204 (b) or (d);
(b) That a nonregulated utility fails to submit a Residential
Conservation Service Plan meeting the requirements of Subpart D by
September 2, 1980, or within such additional period as the Assistant
Secretary allows pursuant to 456.404 (a) or (c);
(c) That 30 days have elapsed after a determination that an approved
State RCS or alternative plan is not being adequately implemented in a
State is final and may not be appealed under section 226(f)(2) of NECPA:
or
(d) After notice and opportunity for a public hearing, that an
approved plan is not being adequately implemented by a covered
nonregulated utility.
10 CFR 456.603 Standby authority in lieu of State plans.
When the Assistant Secretary determines that one of the conditions
specified in 456.602 (a) or (c) exists;
(a) The Assistant Secretary shall promulgate a Residential
Conservation Service Plan which meets the appropriate requirements of
Subpart B and C of this part and which is applicable to each covered
regulated utility in the State;
(b) The Assistant Secretary shall, by order, require each covered
regulated utility in the State to carry out a Residential Conservation
Service Program, which meets the requirements of the plan promulgated
pursuant to paragraph (a) of this section, within 90 days of the
issuance of the order; and
(c) If the State had an approved plan which included nonregulated
utilities, the Assistant Secretary shall take the actions described in
456.604 (a) and (b) with respect to such nonregulated utilities.
10 CFR 456.604 Standby authority for nonregulated utilities.
When the Assistant Secretary determines that one of the conditions
specified in 456.602 (b) or (d) exists;
(a) The Assistant Secretary shall, by order, require the covered
nonregulated utility to promulgate a plan which meets the requirements
of Subpart D of this part; and
(b) The Assistant Secretary shall, by order, require such
nonregulated utility to carry out a Residential Conservation Service
Program, which meets the requirements of the plan promulgated pursuant
to paragraph (a) of this section, within 90 days of the issuance of the
order.
10 CFR 456.605 Failure to comply with orders.
If the Secretary determines that any covered utility to which an
order has been issued pursuant to 456.603(b), 456.604(a), or
456.604(b) has failed to comply with such order, the Secretary may file
a petition in the appropriate United States district court to enjoin
such utility from violating the order.
10 CFR 456.606Enforcement provisions; Penalties; Election of review
procedures.
(a) Any covered utility which violates any requirement of a plan
promulgated under 456.603(a) or 456.604(a), or which fails to comply
with an order under 456.603(b), 456.604(a), or 456.604(b) within 90
days from the issuance of such order, or which violates the prohibition
in 456.502 concerning supply, installation, or financing by covered
utilities, shall be subject to a civil penalty of not more than $25,000
for each violation.
(b) Each day that such violation continues shall be considered a
separate violation.
(c) A civil penalty under this section shall be assessed by an order
of the Assistant Secretary.
(d) Before issuing an order assessing a civil penalty against any
person under this section, the Assistant Secretary shall provide to such
person notice of the proposed penalty. The notice of proposed penalty
shall inform the person of the opportunity to make an election, in
writing, within 30 days after receipt of the notice. The election
involves deciding whether to have the procedures of paragraph (f) of
this section apply, in lieu of the procedures in paragraph (e) of this
section, with respect to the assesment of a civil penalty.
(e)(1) Unless the election described in paragraph (d) of this section
is made within 30 calendar days after receipt of the notice given under
paragraph (d) of this section, the Assistant Secretary shall assess the
penalty, by order, after a determination of violation has been made on
the record. Such determination of violation shall be made after an
opportunity has been afforded for an agency hearing pursuant to section
554 of Title 5, United States Code, before an administrative law judge
appointed under section 3105 of Title 5. The assessment order shall
include the administrative law judge's findings and the basis for such
assessment.
(2) Any person against whom a civil penalty is assessed under this
paragraph (e) may, within 60 calendar days after the date of the order
of the Assistant Secretary assessing the penalty, institute an action in
the United States court of appeals for the appropriate judicial circuit
for judicial review of such order in accordance with Chapter 7 of Title
5, United States Code. The court shall have jurisdiction to enter a
judgment affirming, modifying, or setting aside, in whole or in part,
the order of the Assistant Secretary, or the court may remand the
proceedings to the Assistant Secretary for such further action as the
court may direct.
(f)(1) In any case where the procedures of this paragraph (f) have
been elected, as described in paragraph (d) of this section, the
Assistant Secretary shall assess such penalty by order. The order shall
be made not later than 60 calendar days after the alleged violator's
date of receipt of notice of the proposed penalty under paragraph (d) of
this section.
(2) If the civil penalty assessed by order under paragraph (f)(1) of
this section has not been paid within 60 calendar days after the
assessment order was made, the Secretary shall institute an action in
the appropriate district court of the United States for an order
affirming the assessment of the civil penalty. The court shall have
authority to review de novo the law and the facts involved, and shall
have jurisdiction to enter a judgment enforcing, modifying, and
enforcing as so modified, or setting aside in whole or in part, such
assessment.
(3) Any election to have this paragraph (f) apply may not be revoked
except with the consent of the Assistant Secretary.
(g) If any person, fails to pay an assessment of a civil penalty
after it has become a final and unappealable order under paragraph (e)
of this section, or after the appropriate district court has entered
final judgment in favor of the Secretary under paragraph (f) of this
section, the Secretary shall recover the amount of such penalty in any
appropriate district court of the United States. In such action, the
validity and appropriateness of the respective final order or judgment
imposing the civil penalty shall not be subject to review.
(h) Notwithstanding the provisions of Title 28, United States Code,
or of section 502 of the Department of Energy Organization Act, the
Secretary shall be represented by the General Counsel of the Department
of Energy (or any attorney or attorneys with the Department of Energy
designated by the Secretary) who shall supervise, conduct, and argue any
civil litigation to which this section applies (including any related
collection action) in a court of the United States or in any other
court,except the Supreme Court. However, the Secretary or the General
Counsel shall consult with the Attorney General concerning such
litigation and the Attorney General shall provide, on request, such
assistance in the conduct of such litigation as may be appropriate.
10 CFR 456.606 Subparts G-I -- (Reserved)
10 CFR 456.606 Subpart J -- Residential Conservation Service Federal Standby Plan
10 CFR 456.1000Introduction.
(a) The RCS Federal Standby Plan (FSP or Plan) specifies the
procedures to be followed to ensure that eligible customers receive the
services of the RCS Program when a State does not submit an acceptable
RCS Plan within the necessary time or fails to implement adequately an
approved plan.
(b) This Plan sets forth the functions which utilities subject to the
Plan will be ordered to perform. The core of the Plan is the offer of
an on-site energy audit of an eligible customer's residence.
(c) In implementing the Federal Standby Plan, the Assistant Secretary
shall have the discretion to allow a utility which is currently
complying in good faith with an approved RCS State plan to continue to
operate under that plan even though the State lead agency has
relinquished or been relieved of its responsibilities. Furthermore, the
Assistant Secretary shall have the discretion to allow any utility in a
Federal Standby State which is currently operating under an approved RCS
Program in a separate State to operate a similar program in the Standby
State. In accordance with 456.1022, the utility shall submit to DOE
for approval a copy of the RCS Plan under which it is currently
operating.
10 CFR 456.1001Definitions.
All definitions set forth in 456.105 are applicable where relevant
to this subpart, except as set forth below.
(a) Energy Conserving Practices. The term ''energy conserving
practices'' means low or no cost practices designated by the Assistant
Secretary which save energy, do not require the installation of energy
conservation or renewable resource measures, and do not adversely impact
the RCS Federal Standby Plan. Utilities may add to or delete from the
practices set forth in 456.105, as specified in 456.1022.
(b) Participating Home Heating Supplier. The term ''participating
home heating supplier'' means a home heating supplier that has elected
to participate in the RCS Federal Standby Plan.
(c) Program Announcement. The term ''program announcement'' means
the RCS Program information and offer of services required to be
provided by a covered utility or participating home heating supplier to
each eligible customer by 456.1006.
(d) Program Measures. The term ''program measures'' means those
energy conservation or renewable resource measures which the Assistant
Secretary has by rule determined to be appropriate by climatic region
and fuel use category and which are found in Appendix I of this part, or
which are determined to be program measures by a utility or
participating home heating supplier in accordance with 456.1016.
(e) RCS Federal Standby Plan. The term ''RCS Federal Standby Plan''
(FSP or Plan) means a plan developed pursuant to Subpart F of this part
and section 219 of the National Energy Conservation Policy Act (NECPA).
10 CFR 456.1002Coverage of RCS Federal Standby Plan.
(a) Regulated utilities. All regulated utilities providing utility
service in a State where the FSP is ordered to be enforced and which
meet the definition of ''covered utility'' shall be subject to the FSP.
(b) Home heating suppliers. Any home heating supplier in a State
where the FSP is ordered to be enforced and which wishes to participate
in the FSP may so notify the Assistant Secretary.
10 CFR 456.1003Procedures for investigating and enforcing compliance
with the RCS Federal Standby Plan.
(a) Investigation and enforcement. (1) The Assistant Secretary
requires each utility and each participating home heating supplier
subject to the FSP to comply with the Plan pursuant to the authority
given the Assistant Secretary in section 219 of NECPA (42 U.S.C. 8220).
(2) Individuals or groups wishing to report possible noncompliance
with this Plan shall inform the Assistant Secretary. Each utility and
participating home heating supplier shall inform their customers on how
to notify the Assistant Secretary with respect to such reports. This
information shall be contained in the program announcement distributed
pursuant to 456.1008. The Assistant Secretary may investigate any
allegation of noncompliance or any complaint concerning the RCS Program
or this Plan submitted to DOE, or on his own initiative may review the
activities of utilities or participating home heating suppliers subject
to the FSP to determine compliance with the Plan.
(b) Conflicts of laws. Each utility subject to the FSP shall
petition the Assistant Secretary in accordance with 456.102 whenever
the utility believes it is prohibited by a State or local law or
regulation from taking any action required to be taken under NECPA or
any rule or FSP promulgated pursuant to NECPA, or whenever the utility
believes it is required or permitted by a State or local law or
regulation to take any action prohibited by NECPA or any rule or FSP
promulgated pursuant to NECPA.
(1) The petition shall contain a copy of the applicable State or
local laws or regulations and a description of the action the utility
believes it is prohibited from taking or is permitted or required to
take under such laws or regulations.
(2) The Assistant Secretary shall give notice of the petition to the
Governor, State Energy Office, and State Regulatory Authority of the
applicable State and such other persons as the Assistant Secretary deems
appropriate. Any such person or entity may file comments with the
Assistant Secretary with respect to such petition within 30 days of
receipt of the notice.
(3) If the Assistant Secretary determines pursuant to such petition
that a State or local law or regulation prohibits a utility from taking
any action required to be taken under NECPA or any rule or FSP
promulgated pursuant to NECPA or permits or requires a utility to take
any action prohibited by NECPA or any rule or FSP promulgated pursuant
to NECPA. the Assistant Secretary shall issue an order superseding such
State or local laws or regulations to the extent inconsistent with NECPA
or any rule or FSP promulgated pursuant to NECPA. Such an order shall
be effective with respect to all utilities subject to such State or
local laws or regulations and shall moot any outstanding petitions under
this section by such utilities.
(c) Appeals. (1) Any person aggrieved by any order, finding, or
determination made under paragraph (b) of this section or 456.1017 may
appeal that order, finding, or determination within 30 days in
accordance with 10 CFR, Subpart H of Part 205. All such appeals shall
be filed with the Office of Hearings and Appeals, Department of Energy,
Washington, DC 20585.
(2) Any person so aggrieved has not exhausted his administrative
remedies until an appeal has been filed under that subpart and an order
granting or denying the appeal has been issued.
456.1004 -- 456.1005 (Reserved)
10 CFR 456.1006Program announcement.
(a) Distribution and content. Each utility subject to the FSP shall
send to each eligible customer a copy of the program announcement no
later than 90 days after the issuance of an order from the Assistant
Secretary to comply with the FSP. Each participating home heating
supplier shall send to each eligible customer a copy of the program
announcement no later than the date set forth in the notice from the
Assistant Secretary approving participation by the home heating supplier
in the FSP. A program announcement must, at a minimum --
(1) List the program measures identified in Appendix I or the program
measures developed by the utility pursuant to 456.1016, for the
category of residential building owned or occupied by such eligible
customer;
(2) List the energy conserving practices defined in 456.105 and
456.1001 or the practices developed by the utility and approved by the
Assistant Secretary pursuant to 456.1022 and state that they are of low
or no cost;
(3) Include a reasonable estimate (or a range of estimates) of the
savings in energy costs for a period of one year, which are likely to
result from installation of each of the applicable program measures and
adoption of the energy conserving practices in a typical building or
buildings in such category;
(4) Include an offer to perform the service required to be offered
under 456.1007 (Program Audits);
(i) The offer of the program audit may be conditioned upon a
nondiscriminatory factor such as serving one geographic area at a time
or serving a certain type of energy user first. An unconditional offer,
however, shall be offered to eligible customers within one year of a
conditional offer.
(ii) The offer must explain that an eligible customer may request the
service offered in the program announcement by a request card included
in the program announcement, or by any other appropriate method which is
the most convenient for the utility.
(iii) The offer must list the direct costs, if any, of receiving the
service, which are to be charged to the eligible customer.
(5) Include the following disclosure or a similar statement: ''The
estimates contained in this program announcement are based on estimates
for typical houses and local fuel prices which were in effect at the
time this program announcement was published. The energy audit which we
offer will provide more specific estimates for your home''.
(b) Calculation procedures. Each utility or participating home
heating supplier shall provide the Assistant Secretary, pursuant to
456.1021, with a copy of the procedures used for determining the
estimates of the savings in energy costs referred to in paragraph (a)(3)
of this section.
(c) New customers. (1) A new customer is a person who becomes an
eligible customer after a distribution of the program announcement but
before June 30, 1989.
(2) Each utility and participating home heating supplier subject to
the FSP shall send a program announcement which meets the requirements
of this section to each new customer within 60 days of such customer
becoming a new customer.
(3) Each covered utility or participating home heating supplier shall
retain in its files for not less than five years a copy of each report
of each program audit performed pursuant to an RCS Program. Within 60
days of becoming a new customer, each new eligible customer, who is an
owner of a residential building or dwelling unit therein, shall be
informed by the utility or participating home heating supplier subject
to the FSP that, upon request and without charge, the customer may
receive a copy of the results of any program audit of the customer's
residence which the utility or participating home heating supplier may
have performed pursuant to the RCS Program.
(d) Prohibitions. (1) The program announcement shall not include any
advertising, unless approved by the Assistant Secretary pursuant to
456.1022, for the sale, installation, or financing by any supplier,
contractor, or lender (including the utility and participating
homeheating supplier) of any energy conservation measure, renewable
resource measure, energy conserving practice, or product. The utility
or home heating supplier shall submit to DOE evidence which reasonably
assures that such advertising shall not be anticompetitive or unfairly
discriminate against any person.
(2) The utility or participating home heating supplier is prohibited
from unfairly discriminating among measures, eligible customers,
suppliers, contractors, and lenders in the content of, and in the
providing of, information required under this section.
10 CFR 456.1007Requirements for program audits.
(a) Timing and preconditions. (1) Each utility or participating home
heating supplier subject to the FSP that unconditionally offers an audit
to an eligible customer shall provide such audit within 90 days after
the customer's request for the audit.
(2) Each utility or participating home heating supplier subject to
the FSP that conditionally offers an audit to an eligible customer shall
provide an audit within 45 days after the customer's request.
(3) Each utility or participating home heating supplier subject to
the FSP is prohibited from requiring any precondition for providing a
program audit to an eligible customer and is prohibited from
discriminating unfairly among eligible customers in providing program
audits.
(b) Contents of program audit. (1) Each utility and participating
home heating supplier subject to the FSP shall provide (either directly
or through one or more auditors under contract) to each eligible
customer, upon request, a comprehensive program audit which addresses
the applicable program measures and identifies the appropriate energy
conserving practices referred to in 456.105 and 456.1001 or those
practices approved by the Assistant Secretary pursuant to 456.1022.
(2) The auditor shall determine in each program audit the
applicability of each program measure in that residence based on
applicability criteria set forth below or in the case of residential
buildings containing more than four dwelling units, based on the DOE
applicability criteria set forth in Appendix III of this part.
Additionally, any utility or participating home heating supplier may
establish its own applicability criteria, subject to the approval of the
Assistant Secretary pursuant to 456.1022. If a program measure is not
applicable then the requirement of this section to provide estimates of
the cost and savings of installation of the measure in such residence
does not apply. A program measure is applicable in a residence if:
(i) The measure is not already present in the residence and the
measure can be installed practically;
(ii) Installation of the measure is not a violation of Federal,
State, or local law or regulations;
(iii) With respect to ceiling insulation, the difference between the
existing level of insulation in the residence and the appropriate
insulation level, as determined by the Assistant Secretary, is R-11 or
more;
(iv) With respect to pipe and duct insulation, there are hot water
pipes and heating and cooling ducts which extend through unconditioned
spaces;
(v) With respect to wall insulation, there is no insulation in a
substantial portion of the exterior walls;
(vi) With respect to floor insulation, no floor insulation is
present;
(vii) With respect to flue-opening modifications, the furnace
combustion air is taken from a conditioned area;
(viii) With respect to clock thermostats, the residence currently has
a thermostat and the existing furnace or central air conditioner is
compatible with a clock thermostat;
(ix) With respect to heat-absorbing or heat-reflective window and
door material, the residence has an existing central or room air
conditioner;
(x) With respect to direct gain glazing systems and indirect gain
systems, the living space of the residence has either a south-facing (+
or ^45 of True South) wall or an integral south-facing (+ or ^45 of
True South) roof, which is free of major obstruction to solar radiation;
(xi) With respect to active solar domestic hot water systems, a site
exists on or near the residence which is free of major obstruction to
solar radiation;
(xii) With respect to active solar heating systems, or combined
active solar systems, a site exists on or near the residence which is
free of major obstruction to solar radiation;
(xiii) With respect to replacement solar swimming pool heaters, there
is an existing heated swimming pool and a location exists on the
premises which is free of major obstruction to solar radiation;
(xiv) With respect to solaria/sunspace systems, the living space of
the residence has a south-facing ground-level wall, which is free of
major obstructions to solar radiation;
(xv) With respect to window heat gain retardants, the living area has
a window that is not shaded from summer sunshine and the residence has
substantial use of energy for air conditioning;
(xvi) With respect to window heat loss retardants, the living area
has a window with fewer than three panes; and
(xvii) With respect to wind energy devices:
(A) The estimated average annual wind resource in the vicinity of the
site is 10 miles per hour, or greater, at 10 meters (32 feet) above
ground level; and
(B) There are no major wind obstructions over 55 feet high, greater
than 30 feet wide, within 100 feet of a potential location for the wind
energy device.
(3) Each utility and participating home heating supplier subject to
the FSP shall use as program audit procedures those obtained in the DOE
Model Audit or any other audit procedures approved by DOE, pursuant to
456.1022. For the purposes of this paragraph, the term ''program audit
procedures'' means the measurements or inspections which the auditor
must make in a customer's residence and the calculations which must be
performed in making energy cost savings estimates.
(4) The auditor is required to base any cost and savings estimates
for any applicable furnace efficiency modification of a gas or oil
furnace or boiler on an evaluation of the seasonal efficiency of such
furnace or boiler. This season efficiency shall be based on estimated
peak (tuned-up) steady state efficiency corrected for cycling losses.
Steady state efficiency shall be derived from the manufacturer's design
data and observation of the furnace components, or by a flue gas
analysis of measured flue gas temperature and carbon dioxide content.
(5) The auditor shall offer, at the time of the audit, to provide the
eligible customer, at a minimum, with a written sample of the typical
format of the audit results and a brief explanation of how to interpret
such results.
(c) Results of program audit. Each utility or participating home
heating supplier subject to the FSP is required to provide the following
information in writing to each eligible customer who receives a program
audit:
(1) An estimate of the total cost, expressed in dollars or a range of
dollars, of installation by a contractor of each applicable program
measure.
(2) An estimate of the total cost, expressed in dollars or a range of
dollars, of purchase by the customer of each applicable program measure.
(3) An estimate of energy savings, expressed in dollars or a range of
dollars, of each applicable program measure addressed by the program
audit.
(4) In the case of a utility or participating home heating supplier
which does not provide in-person results of audits, the customer must be
given the opportunity to discuss the results of the audit with a
qualified person.
(d) Prohibitions and disclosure required for program audits. (1)
Unless otherwise approved by the Assistant Secretary pursuant to
456.1022, the auditor is prohibited from estimating, as part of any
program audit provided pursuant to the FSP, the costs or energy cost
savings of installing any measure or product which is not a program
measure.
(2) Auditors are prohibited from recommending any supplier,
contractor, or lender who supplies, installs, or finances the sale or
installation of any program measure if such recommendation would
unfairly discriminate among such suppliers, contractors, or lenders.
(3) No utility, participating home heating supplier, or auditor may
unfairly discriminate among program measures.
(4) Each auditor must provide the eligible customer with a written
statement of any substantial interest which the person or the person's
employer has, directly or indirectly, in the sale or installation of any
program measures.
(e) Program audits of furnaces. In order for an auditor of a utility
or participating home heating supplier subject to the FSP to provide
cost and savings estimates for furnace efficiency modifications with
respect to a furnace which uses as its primary source of energy any fuel
or source of energy other than the fuel or source of energy sold by that
utility or participating home heating supplier, the eligible customer
must request such audit by signing a form which includes the following
statement:
If your home is heated by a source of fuel other than (state the type
of fuel supplied by the utility or participating home heating supplier),
only the supplier of the other fuel may audit your furnace unless you
specifically request us to audit your furnace. Federal law requires
that the request be in writing. If you want us to audit your furnace,
although we do not supply the fuel for it please sign below.
(f) Qualifications for program auditors. Each auditor who performs a
program audit pursuant to FSP shall:
(1) Be qualified according to the applicable procedures in 456.1014
of this subpart; and
(2) Be under contract or subcontract to, be a employee of, or be an
employee of a contractor or subcontractor to, a utility or participating
home heating supplier subject to the FSP.
456.1008 -- 456.1009 (Reserved)
10 CFR 456.1010 Accounting and payment of costs.
(a) Accounting. All amounts expended or received by a utility
subject to the FSP which are attributable to the RCS Program, including
any penalties paid under 10 CFR Part 456 Subpart F (Federal Standby
Authority), shall be separately accounted for on the books and records
from amounts attributable to all other activities of the utility.
(b) Payments of costs. Utilities subject to the FSP shall treat
costs as described below and shall notify the Assistant Secretary,
pursuant to 456.1020, how the costs described in paragraph (b)(2) of
this section will be treated.
(1) All amounts expended by a utility subject to the FSP for the
program announcement and all public education and program promotion
directly related to providing information about a utility's RCS Program
shall be treated as a current expense of providing utility service and
be charged to all ratepayers of the utility subject to the FSP in the
same manner as other current operating expenses of providing such
utility service.
(2) The cost of the following program elements shall be recovered in
the manner specified by the State regulatory authority for all regulated
utilities subject to the FSP (except that the amount that may be
recovered directly from a residential customer for whom the activity
described in paragraph (b)(2)(ii) of this section is performed shall not
exceed $15 per dwelling unit, or the actual cost of such activities,
whichever is less):
(i) Administrative and general expenses, including those associated
with program audits and customer billing services.
(ii) Project manager requirements, including the providing of program
audits.
(3) In determining the amount to be recovered directly from customers
as provided under paragraph (b)(2) of this section, the State regulatory
authority shall take into consideration, to the extent practicable, the
customers' ability to pay and the likely levels of participation in the
utility program which will result from such recovery.
(c) Duplication of audits. (1) In areas where a residential customer
is an eligible customer of more than one utility or participating home
heating supplier, such customer is entitled to an RCS audit from only
one of these utilities or home heating suppliers.
(2) No utility or participating home heating supplier subject to the
FSP shall be required to make more than one audit of a residential
building or dwelling unit therein, unless a new owner, who is an
eligible customer, requests a subsequent audit.
10 CFR 456.1011Customer billing, repayment of loans, and termination of
service.
(a) Customer billing. Every charge to a customer by a utility or a
participating home heating supplier, subject to the FSP, for any portion
of the costs of carrying out any activity pursuant to the FSP that is
charged to the residential customer for whom such activity is performed
(including repayment of a loan) and that is included on a billing for
utility service submitted by the utility or home heating supplier to
such residential customer, shall be stated separately on such billing
from the cost of providing utility or fuel service. Nothing in this
paragraph shall be construed so as to require that charges to the
customer for activities performed pursuant to the FSP must be included
on the periodic utility or fuel bill.
(b) Repayment of loans. (1) In the case of any loan by a utility,
the utility, with the approval of the customer, shall permit repayment
of the loan as part of the periodic utility bill.
(2) In the case of any loan for the purchase or installation of
program measures made by a participating home heating supplier under the
FSP --
(i) The participating home heating supplier shall permit the eligible
customer to include repayment of the loan in the customer's payment of
his periodic fuel bill over a period of not less than three years,
unless the eligible customer chooses a shorter repayment period;
(ii) A lump-sum payment of outstanding principal and interest may be
required by the lender upon default (as determined under applicable law)
in payment by the eligible customer; and
(iii) No penalty shall be imposed by a participating heating supplier
for payment of all or any portion of the outstanding loan amount prior
to the date such payment would otherwise be due.
(c) Termination of service. No utility or participating home heating
supplier subject to the FSP shall terminate or otherwise restrict
utility or fuel service to any customer for payments due for any
services under the FSP.
456.1012 (Reserved)
10 CFR 456.1013Quality assurance.
(a) To ensure that reasonable levels of effectiveness and safety are
maintained in the supply and installation of measures under the FSP,
each utility or participating home heating supplier shall develop and
offer to each customer at the time of the audit or with the audit
results the following:
(1) Information on how to recognize the most common type of improper
installation; and
(2) Information on the availability and responsibilities of
independent (public or private) inspection services and the means of
contacting these services.
(b) Pursuant to 456.1021 each utility and participating home heating
supplier shall submit to the Assistant Secretary for approval, the
information to be provided to eligible customers required under
paragraph (a) of this section.
(c) Any utility or participating home heating supplier may request an
exception from the requirements of paragraph (a) of this section
pursuant to 456.1022. Such requests must demonstrate that existing
mechanisms are sufficient to ensure reasonable levels of effectiveness
and safety in the installation of measures.
10 CFR 456.1014Qualification procedures for auditors.
(a) Each utility and participating home heating supplier subject to
the FSP must provide an adequate number of auditors for the RCS program
who have successfully completed an auditor training program using either
the DOE auditor training manual or any other DOE approved auditor
training program or passed a DOE approved certification examination.
(b) Paragraph (a) of this section shall not applicable to any auditor
who has previously operated under an approved RCS State Plan unless the
utility or participating home heating supplier decides otherwise.
(c) Pursuant to 456.1021, each utility and participating home
heating supplier subject to the FSP shall provide to the Assistant
Secretary for approval, procedures for training auditors, a description
of the training materials, and a reasonable timetable for the
implementation of the qualification procedures for auditors.
10 CFR 456.1015Home heating suppliers.
(a) Participation and Withdrawal. Any home heating supplier in a
State subject to the RCS Federal Standby Plan wishing to participate in
the Plan may contact the Assistant Secretary.
(1) Notwithstanding any other provision of this part, any
participating home heating supplier may request a waiver of certain
requirements in this Plan as provided in paragraph (b) of this section.
(2) Any participating home heating supplier may voluntarily withdraw
from the FSP by submitting to the Assistant Secretary a written
notification.
(3) Prior to withdrawal, the participating home heating supplier
shall give notice of its withdrawal to those customers who have either
requested RCS audits or otherwise have been involved in RCS services and
shall refer them to the appropriate utility in the same service area.
(4) The withdrawal notice to the Assistant Secretary shall give
assurance that the home heating supplier has performed the requirements
in paragraph (a)(3) of this section.
(b) Waiver of requirements. (1) The Assistant Secretary will
consider individual requests for waivers of FSP requirements from
participating home heating suppliers on the basis of the limited
resources of the home heating suppliers.
(2) The Assistant Secretary will not waive the following requirements
for any home heating supplier who chooses to participate in the program:
(i) Section 456.1003 (Investigation and enforcement).
(ii) Section 456.1007(d) (Prohibitions and disclosures required for
program audits).
(iii) Section 456.1007(e) (Furnace audits).
10 CFR 456.1016Program measures.
(a)(1) Each utility or participating home heating supplier subject to
the FSP may exclude any program measure for its service area on the
following basis:
(i) When, by substituting utility or home heating supplier derived
data, the program measure has a payback period (P) of more than seven
years, as determined by dividing the installed first cost (F) less any
Federal and State tax credit (T), by the first year energy savings in
dollars (S),
(ii) When, by substituting a utility or home heating supplier
specific prototypical house, it is determined that the program measure
has a payback period (P) of more than seven years pursuant to the
formula in paragraph (a)(1)(i) of this section.
(2) The utility or participating home heating supplier shall provide
to the Assistant Secretary data to substantiate any exclusion pursuant
to paragraph (a)(1) (i) or (ii) of this section.
(b) The utility or participating home heating supplier may add, with
DOE's approval, pursuant to 456.1022, any measure not identified in
Appendix I as a program measure for its service area, to the Plan.
10 CFR 456.1017Supply, installation and financing by utilities.
(a) General. Except as provided below, the provisions of the
paragraphs (b)(2) (i)-(iii) of this section, shall be undertaken in a
manner which minimizes the cost of residential energy conservation
measures to such customers.
(b) Exemption for utility subcontractor supply and installation. The
Assistant Secretary shall grant an exemption to the prohibition
contained in 456.502(a) to a utility to supply or install any energy
conservation or renewable resource measure through contracts between
such utility and independent suppliers or contractors where the customer
requests such supply and installation and the following conditions are
met:
(1) The utility certifies to DOE that each supplier or contractor;
(i) Shall not be subject to the control of the utility, except as to
the performance or such contract and shall not be an affiliate or
subsidiary of such utility and;
(ii) If selected by the utility, shall be selected in a manner
consistent with paragraph (b)(2) of this section.
(2) The utility submits to DOE a description of the proposed utility
activities which shall include evidence that such activities:
(i) Shall not involve unfair methods of competition;
(ii) Shall not have a substantial adverse effect on competition in
the area in which such activities are undertaken nor result in providing
to any supplier or contractor an unreasonably large share of contracts
for the supply or installation of energy conservation or renewable
resource measures;
(iii) Shall be undertaken in a manner that provides, subject to
reasonable conditions to utility may establish to ensure the quality of
supply and installation of energy conservation or renewable resource
measures, that any financing by the utility of such measures shall be
available to finance the supply or installation by any contractor or to
finance the purchase of such measures to be installed by the customer;
and
(iv) To the extent practicable and consistent with paragraphs (b)(2)
(i)-(iii) of this section, shall be undertaken in a manner which
minimizes the cost or residential energy conservation measures to such
customers.
(3) Any covered utility wishing to obtain an exemption to the
prohibition contained in 456.502(a) shall obtain approval by sending
the request for exemption along with the required conditions and
evidence described in paragraphs (b) (1) and (2) of this section to the
Assistant Secretary for Conservation and Renewable Energy, Department of
Energy, 1000 Independence Avenue, SW., Washington, DC 20585.
(4) Upon request, a utility conducting activities pursuant to this
section shall provide DOE with a current estimate of the average price
of supply and installation of energy conservation and renewable resource
measures subject to the contracts entered into by the utility under
paragraph (b) of this section.
10 CFR 456.1018Complaints processing procedures.
(a) Conciliation services for customer complaints. (1) Each utility
or participating home heating supplier subject to the FSP is required at
the time of the audit or with the audit results to offer to provide to
eligible customers information on available conciliation services for
the purpose of resolving complaints by eligible customers against
persons who install or supply program measures under the RCS program.
(2) Each utility and participating home heating supplier shall
establish procedures to resolve complaints by eligible customers against
the utility or home heating supplier under the FSP.
(b) Redress proceedings. Each utility or participating home heating
supplier subject to the FSP shall offer to provide to eligible
customers, at the time of the audit or with the audit results,
information on available redress proceedings for use by all persons
alleging injury arising from an activity carried out under the FSP or
from a violation of the FSP.
(c) Additional requirement with respect to conciliation and redress.
Each utility or participating home heating supplier shall submit to the
Assistant Secretary pursuant to 456.1021, the information that will be
made available to inform eligible customers of available conciliation
services and redress proceedings. If such services are unavailable, the
Assistant Secretary shall be notified and shall take appropriate action.
10 CFR 456.1019Coordination.
The Assistant Secretary shall contact annually the cognizant Federal,
State, and local officials responsible for energy conservation programs
within and affecting a State which is covered by the FSP.
10 CFR 456.1020Reporting and recordkeeping.
(a) Each utility and participating home heating supplier subject to
the FSP shall submit a report to the Assistant Secretary no later than
six months after the date of DOE approval of all procedures submitted
pursuant to 456.1021. An annual report shall subsequently be submitted
no later than each July 1 and thereafter until July 1, 1989, unless the
initial six month report is required to be submitted less than 90 days
prior to July 1. In such a case, the annual report shall be submitted
the following July 1 and annually thereafter through June 30, 1989.
(b) The six month report or annual report or both, as indicated,
shall include the following information:
(1) The approximate number of eligible customers (6 month report
only).
(2) A copy of the program announcement if not already provided (6
month report only).
(3) The number of program announcements provided to eligible
customers, including the number of those making conditional audit offers
(6 month report and annual report).
(4) The number of energy audits requested and provided.
(5) The nature of any direct financing activities and exempted or
waived supply or installation activities engaged in by the utilities,
including:
(i) Where applicable, any copy of any State or local law or
regulation in effect on November 9, 1978 which requires or explicitly
permits the utility to engage in any supply or installation of any
energy conservation or renewable resource measures (6 month report);
(ii) The procedures used to select products to be supplied,
installed, or financed (6 month report and annual report);
(iii) The procedures used to select installers to perform utility
supported work (6 month report and annual report);
(iv) Steps the utility has taken to ensure that the activities have
no adverse effect on competition (6 month report and annual report);
and
(v) The price and interest rates charged by utilities in conjunction
with the supply, installation and financing services offered pursuant to
exemptions or waivers granted under section 216 (b), (c), (d)(1),
(d)(2), and (e) of NECPA (6 month report and annual report).
(6) Description of the treatment of costs described in
456.1010(b)(2) (utility only) (6 month report or annual report).
(7) The estimated utility or home heating supplier costs of
implementing the RCS Program incurred during the reporting period (6
month report and annual report).
(8) The number and description of complaints against the utility or
participating home heating supplier (6 month report and annual report).
(c) Each covered utility and participating home heating supplier
shall keep for five years from the date of the program audit a copy of
the audit report, and shall make such report available upon request to
the Assistant Secretary.
(d) Any provisions of this section notwithstanding, the Assistant
Secretary may, as he deems essential to the Departmental implementation
of program responsibilities and subject to approval of the OMB under
provisions of the Paperwork Act (Pub. L. 96-511) --
(1) Require additional information; or
(2) Waive any reporting and recordkeeping requirements, except the
recordkeeping requirement in paragraph (c) of this section.
10 CFR 456.1021Information which a utility and participating home
heating supplier shall report to the Assistant Secretary.
Utilities and participating home heating suppliers subject to the FSP
shall report the following procedures to the Assistant Secretary for his
approval on a date specified in the order:
(a) Procedures for determining the estimates of energy costs savings
( 456.1006(b)).
(b) Procedures for ensuring that reasonable levels of effectiveness
and safety are attained in the supply and installation of measures under
the RCS Program ( 456.1013(b)).
(c) Training procedures and a description of the training materials
for auditors, including the timetable for the implementation of the
qualification procedures for auditors 456.1014(c)).
(d) The information to be offered to eligible customers on available
conciliation services and redress proceedings 456.1018(a)(1) and (b)).
(e) Procedures for handling complaints against a utility or
participating home heating supplier ( 456.1018(a)(2)).
10 CFR 456.1022Exceptions.
As provided for in the applicable sections, any utility or
participating home heating supplier wishing to seek an exception from
one or more of the following sections shall obtain approval from the
Assistant Secretary by sending the request for approval, along with
supporting documents, to the Assistant Secretary for Conservation and
Renewable Energy, Department of Energy, 1000 Independence Avenue SW.,
Washington, DC 20585.
(a) Section 456.1000(c). (Exception for existing RCS programs);
(b) Section 456.1006(a)(2). (Listing substitute energy conserving
practices in the program announcement);
(c) Section 456.1006(d). (Allowing advertising in the program
announcement);
(d) Section 456.1007(a)(3). (Extending the time for the performance
of an audit after a customer's request);
(e) Section 456.1007(b)(1). (Identifying substitute energy conserving
practices during the program audit);
(f) Section 456.1007(b)(2). (Developing substitute applicability
criteria);
(g) Section 456.1007(b)(3). (Developing substitute program audit
procedures);
(h) Section 456.1007(e)(1). (Estimating costs or energy cost savings
of installing any measure or product which is not a program measure);
(i) Section 456.1013(c). (Developing quality assurance procedures);
(j) Section 456.1016(a)(2). (Substantiating exclusion of program
measures in calculating payback period); or
(k) Section 456.1016(b). (Adding program measures to the FSP not
identified in Appendix I).
10 CFR 456.1023Waivers.
As provided for in Subpart L, any utility or participating home
heating supplier wishing to petition for a waiver from any requirement
under this subpart shall follow the procedures contained under section
456.1203.
10 CFR 456.1023 Subpart K -- Alternative State Plans
10 CFR 456.1101Scope.
This subpart identifies the responsibilities of States and covered
utilities under an Alternative State Plan authorized under section
103(a) of CSRA including the plan content, certification procedure,
reporting requirements, enforcement procedures, and the amendment
process.
10 CFR 456.1102Definitions.
(a) For purposes of this subpart, an ''entity'' means the Governor of
any State or the designated State regulatory authority, or agency or
instrumentality of the State authorized under State law to formulate and
certify an alternative State plan for residential buildings under this
subpart.
(b) ''Covered utilities'' are those regulated utilities which meet
the definition of ''covered utility'' in 456.105, and in addition, to
the extent authorized by State law or agreed to by the organizations,
includes non-regulated utilities and home heating suppliers. For
purposes of this subpart, any utility with a retail service territory in
more than one State shall be considered to be a separate utility with
respect to each State in which its retail service territory is located.
10 CFR 456.1103Content of plan.
An alternative State plan certified pursuant to this subpart shall --
(a) Be designed to result in annual residential energy conservation
savings of 2 percent or more.
(b) Contain the goals established for the plan and an analysis of the
data and rationale used by the certifying entity to determine that the
plan is likely to achieve such goals.
(c) Contain adequate procedures to assure that, if a public utility
supplies or installs residential energy conservation measures, such
actions shall be consistent with section 216 of NECPA and Subpart E of
this part and prices and rates of interest charged shall be fair and
reasonable.
(d) Contain adequate procedures for preventing unfair, deceptive, and
anticompetitive acts or practices affecting commerce which relate to the
implementation of such plan.
10 CFR 456.1104Incentives.
The entity in charge of a plan under this subpart, or a State
regulatory authority, may, to the extent permitted under State law,
provide incentives for utilities to meet the goals contained in the
State's alternative State plan, including providing such utilities that
meet or exceed such goals with a rate of return on expenditures made for
the purpose of accomplishing such goals.
10 CFR 456.1105Certification process.
(a) Certification. (1) The entity which elects to certify a plan
under this section shall certify, pursuant to a form prescribed by the
Secretary (except as provided by paragraph (a)(2) of this section), to
the Secretary that --
(i) The plan meets the requirements of 456.1103;
(ii) The plan is likely to achieve the goals established for the plan
if it is adequately implemented; and
(iii) The plan will be adequately implemented.
(2) If a form is not made available by the Secretary within 90 days
after the date of the enactment of the CSRA and until such form is made
available, the certifying entity may make such certification on a form
prescribed by such entity.
(3) Any certification under this section shall include a copy of the
plan and a detailed explanation of the manner in which the contents of
the plan will be implemented.
(b) Consequences. (1) Beginning with the certification date of a
plan under this section and ending with the date on which a plan is no
longer in effect --
(i) Subsections (a) through (c)(3) of section 212, sections 213
through 215 and sections 217 and 218 of NECPA shall not apply with
respect to regulated utilities in such State and nonregulated utilities
which are included in the plan; and
(ii) Section 219 of NECPA shall apply to utilities described in
subparagraph (a) only to the extent provided for under 456.1107.
(2) Except as provided under 456.1108, any State for which a plan is
certified under this section shall continue to have such plan in effect
until June 30, 1989.
10 CFR 456.1106Reporting requirements.
(a) The certifying entity shall submit an annual report to the
Secretary, within 60 days after the end of the 1-year period to which
the report relates, describing the implementation of the plan and the
results thereof.
(b) Such report shall include --
(1) A statement of the number of residential buildings receiving
benefits under the plan;
(2) An estimate of the actual energy savings resulting from the plan
and a description of sources of such savings;
(3) A statement of the percentage of individuals with low and
moderate incomes who receive benefits under the plan;
(4) A detailed description of the benefits provided under the plan
and of how the plan is implemented;
(5) Estimated State costs and utility costs of implementing the plan;
and
(6) The names of the entities carrying out the plan.
(c) The first such report shall be made by the certifying entity
within the 14-month period that begins with the plan certification date.
(d) Subject to approval of the Office of Management and Budget under
the provisions of the Paperwork Reduction Act (Pub. L. 96-511), the
Secretary may, to meet the requirements under section 225 of the NECPA,
require additional information from entities.
10 CFR 456.1107Procedures for administrative and judicial enforcement.
(a) Rights to petition. At any time more than 1 year after an
Alternative State plan has been certified under 456.1105, any customer
of a utility subject to such Alternative State plan may petition the
Secretary of Energy to conduct a public hearing to determine if the
Alternative State plan has been adequately implemented.
(b) Content of petition. Any petition mailed by the Secretary shall
be received for filing only if such petition --
(1) Sets forth the petitioner's name and address;
(2) States that the petitioner is a customer of a named utility
subject to an alternative State plan that was certified under 456.1105
more than one year prior to the date of the petition;
(3) Explains how the alternative State plan has not been adequately
implemented with sufficient specificity to give reasonable notice of any
failure constituting grounds for complaint and any supporting
allegations of relevant facts;
(4) States how the petitioner has been injured by any failure to
adequately implement the alternative State plan stated as a ground for
complaint;
(5) States whether and to what extent a hearing is desired;
(6) Contains a certificate verifying that a copy of the petition was
transmitted, on the same date of transmittal to the Secretary to the
entity which certified the alternative State plan, by certified mail,
return-receipt requested; and
(7) Is signed by the petitioner before a Notary Public.
(c) Answer. The entity in charge of the alternative State plan shall
have 20 days from the date of receipt to file an answer to the petition.
(d) Denial of hearing. Within 60 days of the date the petition is
received for filing, the Secretary may deny a hearing, in whole or in
part, in a written statement including supporting reasons if such a
hearing is not justified in the public interest.
(e) Prehearing dismissal. Within 60 days after a petition is
received for filing, the Secretary may dismiss such petition for failure
to state adequate injury in fact or sufficient grounds for complaint
which, if supported by the record, would warrant the conclusion that the
alternative State plan has not been adequately implemented.
(f) Notice of hearing. Within 60 days of the date the petition is
received for filing, the Secretary shall give advance notice to the
public of any hearing to be carried out on a petition under this section
including but not limited to --
(1) A description of the grounds for complaint in the petition;
(2) A date certain by which the public may submit written comments;
(3) Procedures for submission of evidence; and
(4) Such additional procedures as may be appropriate for the conduct
of the hearing.
(g) Making the determination. Any determination by the Secretary
concerning the adequacy of the implementation of any alternative State
plan shall be on the record and shall be published in the Federal
Register within 60 days after such determination is made.
(h) Appeal. Any person alleging that he is likely to be injured as a
result of a determination by the Secretary under this section may,
within 60 days after publication or notification of such determination,
institute an action appealing the determination in the United States
Court of Appeals for the appropriate judicial circuit. The court shall
review the determination of the Secretary in accordance with
Administrative Procedures Act, and shall have jurisdiction to affirm,
modify, set aside, in whole or in part, or to remand such determination
to the Secretary for such other action as the court may direct.
(i) Enforcement. Except as provided in paragraph (f) of this
section, if any determination by the Secretary that the alternative
State plan has not been adequately implemented becomes final and may not
be appealed, the Secretary shall, within 30 days of the date on which
the determination may no longer be appealed, initiate standby authority
under Subpart J with respect to such State.
(j) Exception. If a State which had an approved plan in effect under
subpart B on the day before the date on which certification was made
under 456.1105 informs the Secretary in writing, within 30 days after
receiving a copy of the petition described in paragraph (a) of this
section, that it will no longer implement a plan certified under this
subpart and that it will implement the approved plan which was in effect
in the State on the day before certification of the alternative State
plan under this subpart, then --
(1) The determinations and actions described in paragraphs (b)
through (d) of this section may not be carried out; and
(2) Sections 212 through 219 of NECPA shall apply in such State
except to the extent that waivers are provided for utilities under
Subpart L in such State.
10 CFR 456.1108Amendments.
(a) Except as provided by paragraph (b) of this section, a plan
certified under this subpart may be amended by any amendment --
(1) Consistent with the requirements of 456.1103; and
(2) Certified to the Secretary of Energy in a manner consistent with
the requirements applicable to the certification of a plan under
456.1104.
(b) A plan certified under this subpart may not be amended --
(1) During the first year after it is certified; or
(2) More than once a year thereafter.
10 CFR 456.1108 Subpart L -- Utility Waiver Process
10 CFR 456.1201Scope.
This subpart specifies the procedures to be followed by covered
utilities to request a waiver from the Secretary from any provision of
this part or any provision of a State residential energy conservation
program under this part. For purposes of this section, the term
''residential energy conservation program'' means any program carried
out by a utility that has as its purpose --
(a) Increasing the efficiency with which petroleum, natural gas or
electric energy is consumed in residential buildings served by such
utility; or
(b) Utilizing solar or other forms of renewable energy in residential
buildings served by such utility.
10 CFR 456.1202Coverage.
This subpart shall apply to all regulated and nonregulated utilities
which meet the definition of ''covered utility'' in 456.105.
10 CFR 456.1203Approval process.
(a) Criteria. A waiver may be approved under this subpart if a
covered utility shows in appropriate State proceedings and the
appropriate State officials find that --
(1) The existing and planned residential energy conservation programs
that will be implemented by the utility if a waiver from such provision
is approved will result in savings in petroleum, natural gas or electric
energy consumed in residential buildings served by the utility that are
equal to or greater than the savings that would be achieved in
connection with a properly implemented State residential conservation
service plan under this part; and
(2) Adequate procedures are in effect that prevent unfair, deceptive
or anticompetitive acts or practices affecting commerce that relate to
the implementation of such residential energy conservation programs,
including provisions to assure that any person who alleges any injury
resulting from unfair, deceptive or anticompetitive acts or practices in
connection with such programs shall be entitled to redress under such
procedures as may be established by the Governor in the State in which
the utility provides the service.
(b) Approval. The Secretary shall approve a request of a utility for
a waiver under paragraph (a) of this section if the Secretary determines
that --
(1) Opportunity for a hearing on the request for a waiver has been
provided in the State in which the utility provides utility service;
and
(2) In the case of a regulated utility, the Governor of the State in
which the utility provides utility service and the State regulatory
authority that has ratemaking authority with respect to such utility
both --
(i) Find that the showings under paragraphs (a) (1) and (2) of this
section are sufficient; and
(ii) Support the request by the utility for the waiver.
(3) In the case of a nonregulated utility, the Governor of the State
in which the utility provides utility service --
(i) Finds that the showings under paragraphs (a) (1) and (2) of this
section are sufficient; and
(ii) Supports the request by the utility for the waiver.
(c) Submittal. (1) Utilities seeking a waiver shall prepare a
request documenting their proposal and showing how the approval criteria
of 456.1203(a) are met. The request shall be submitted to the Governor
and, in the case of regulated utilities, to the State regulatory
authority.
(2) The Governor, and, in the case of regulated utilities, the State
regulatory authority, shall, for those waiver requests supported, submit
to the Assistant Secretary a statement concerning the opportunity for a
hearing on the request and a brief summary of findings concerning the
sufficiency of the utility showings regarding the criteria in paragraphs
(a) (1) and (2) of this section together with the utility waiver
request.
10 CFR 456.1204Annual Report to Governor.
Any utility that receives a waiver under this section shall provide
the Governor of the State in which that utility provides utility service
with an annual report describing the performance of its residential
energy conservation programs in relation to the showings of such utility
under paragraphs (a)(1) and (2) of this section.
10 CFR 456.1205Revocation procedures.
(a) The Secretary shall revoke any waiver granted to a covered
utility subject to a State plan under this subpart upon a request under
this section by the Governor of the State in which the utility provides
utility service.
(b) The Governor, with the concurrence of the State regulatory
authority in the case of a regulated utility, may request such a
revocation on the basis that the savings described under 456.1203(a)(1)
on an annual basis are less than the savings in the year prior to
approval of the waiver or that the procedures specified under
456.1203(a)(2) are no longer adequate.
(c) A request for revocation may be made only after a review and
opportunity for public hearing on the performance of the residential
energy conservation programs of the utility. In order to facilitate
such review and hearing, the utility shall provide the Governor such
information as the Governor requests about such residential energy
conservation program.
(d) The revocation request submitted to the Secretary shall contain a
statement concerning the review and hearing discussed in paragraph (c)
of this section, and a brief summary of the findings leading to the
request to paragraph (b) of this section.
10 CFR 456.1205 Subpart M -- Commercial Buildings and Multifamily Dwellings
10 CFR 456.1301Scope.
This subpart applies to any State energy conservation plan for
commercial buildings and multifamily dwellings approved under section
721 of tbe National Energy Conservation Policy Act before August 1,
1984.
10 CFR 456.1302Authority to continue plans.
Any State energy conservation plan to which this subpart applies may,
with respect to regulated utilities, continue in effect until January 1,
1990.
10 CFR 456.1303Reporting.
The administering agency for any State energy conservation plan to
which this subpart applies may report annually at such time as may be
appropriate with respect to activities carried out under the authority
of section 201 of CSRA.
10 CFR 456.1303 Pt. 456, App. I
10 CFR 456.1303 Appendix I to Part 456 -- Program Measures
(a) General. (1) The measures table was developed by evaluating
program measures with respect to a prototypical house (see Appendix II)
for all HUD/MPS climate zones and categories of residential fuel use. A
measure was determined to be a program measure for a climate zone and
category of residential fuel use if the ratio of installed first cost,
less any Federal and State income tax credits, divided by first year
energy savings in dollars was less than or equal to 7 years. The RCS
Model Audit procedures were used to determine energy savings.
(2) DOE applied only resident-installed costs to those measures which
are not likely to be installed by a contractor: caulking and
weatherstripping. Resident-installed and contractor costs were used to
determine installed first cost for those measures which DOE believes
could be easily installed by homeowners without encountering safety
hazards or without conflicting with most building code requirements.
These measures include ceiling insulation, floor insulation, water
heater insulation, clock thermostats, heat reflective and heat absorbing
window and door materials, and pipe and duct insulation.
Contractor-installed costs alone were used for those measures where
local codes or regulations and safety considerations are likely to
preclude homeowner installations or where a measure is not easily
installed by a homeowner. These measures include: wall insulation,
storm and thermal windows and doors, replacement heating systems, oil
burner replacements, vent dampers, intermittent ignition devices
(IID's), replacement central air-conditioners, active solar space
heating systems, combined active solar space heating and hot water
heating systems, solar domestic water heating systems, replacement solar
pool heaters, and wind energy devices.
(b) Climate Zones of Program Measures. In the table of program
measures, the climate zones for heating degree-days are as follows:
The cooling degree-days utilized in the evaluation of program
measures for each climate zone within each State are the cooling
degree-days for the weather station which is specified for that climate
zone in the DOE Model Audit.
(c) Category of Residential Fuel Use. The program measures are
designated in the following tables by categories of residential fuel
use. These categories are:
(1) For ceiling insulation, wall insulation, floor insulation, duct
insulation, pipe insulation, storm or thermal windows, storm or thermal
doors, replacement heating systems, replacement oil burners, vent
dampers, IID's, active solar space heating systems, and combined solar
space heating and solar domestic hot water systems:
(i) ''Electricity,'' which includes all residential buildings in
which the principal source of space heating is an electric resistance
heating system;
(ii) ''Gas,'' which includes all residential buildings in which
either natural gas, or propane, or butane is the principal space heating
fuel;
(iii) ''Oil,'' which includes all residential buildings in which
either 2 heating oil or kerosene is the principal space heating fuel
and includes all other residential buildings not included in the
categories ''Electricity,'' ''Gas,'' or ''Heat Pump'';
(iv) ''Heat Pump,'' which includes all residential buildings in which
the principal source of space heating is an electric heat pump.
(2) For water heater insulation and solar domestic hot water:
(i) ''Electricity'' includes all residential buildings in which the
principal fuel for water heating is electricity;
(ii) ''Gas'' includes all residential buildings in which the
principal fuel for water heating is either natural gas, or propane, or
butane;
(iii) ''Oil'' includes all residential buildings for which the
principal fuel for water heating is either 2 heating oil, kerosene, or
a fuel not included under ''Electricity'' or ''Gas'' in this subsection.
(3) For heat reflective and heat absorbing window and door material,
''Electricity'' includes all residential buildings in which electricity
is used for air-conditioning and includes buildings that are cooled with
a heat pump.
(4) For replacement central air-conditioners, ''Electricity''
includes all residential buildings in which electricity is used by a
central air-conditioner.
(5) For replacement solar swimming pool heaters:
(i) ''Electricity'' includes all swimming pools for which the
principal fuel for pool heating is electricity;
(ii) ''Gas'' includes all swimming pools for which the principal fuel
for pool heating is natural gas, or propane, or butane;
(iii) ''Oil'' includes all swimming pools for which the principal
fuel for pool heating is either 2 heating oil, kerosene, or a fuel not
included under ''Electricity'' or ''Gas'' in this subsection.
(6) For wind energy devices:
(i) ''Electricity'' includes all residences in which the principal
source of space heating is an electric resistance heating system and
which have electric domestic water heating;
(ii) ''Heat Pump'' includes all residences in which the principal
source of space heating is an electric heat pump and which have electric
domestic hot water heating.
(d)(1) Caulking, Weatherstripping, and Clock Thermostats. Caulking
and weatherstripping fell within the 7-year payback in all climate zones
for all fuel use categories for resident-installed costs and are
considered program measures in all States. Clock thermostats fell
within the 7-year payback in all climate zones for all fuel use
categories for resident- and contractor-installed costs. (For the sake
of simplicity, these measures do not appear in the tables.)
(2) Devices Associated with Electric Load Management Techniques.
Devices associated with electric load management techniques are program
measures for all categories of fuel use if the local electric utility
offers a residential rate that reflects any differences in the utility's
cost of service (either energy or demand costs) between peak and
off-peak periods, or if a residential electric rate comprised of an
integrated peak measured demand and an energy use component is applied.
(3) Ceiling Insulation. Where indicated as a program measure in
Table 2, the R-Value for ceiling insulation shall be determined by the
State.
(4) Floor Insulation. Where indicated as a program measure in Table
2, the R-Value for floor insulation shall be determined by the State.
(5) Replacement Solar Swimming Pool Heaters. These are evaluated as
a program measure as indicated in Table 2. This analysis assumed a pool
blanket or cover is also used. The measure should be audited for as
indicated in Table 2 whenever the residence has a heated pool.
(6) Intermittent Ignition Devices (IID's). IID's are not displayed
as program measures in Table 2, but are program measures for the
category ''Gas'' in the Oregon climate zone ''8.''
(7) Active Solar Space Heating Systems and Combined Solar Space
Heating and Hot Water Systems. Active solar space heating systems and
combined solar space heating and hot water systems are program measures
as indicated by Table 1 below.
(8) Wind Energy Devices. A State that does not change its audit
requirements by deleting measures based on the amended RCS measures
table shall, whenever a wind energy device appears in Table 2 with
brackets and is also asterisked, continue to include a wind energy
device as a program measure in its State Plan. Whenever a wind energy
device is bracketed or bracketed and asterisked, a State that changes
its audit requirements by deleting measures based on the amended RCS
measures table shall include in its State Plan the requirement that
utilities audit for the appropriate type of wind energy device
identified in Table 2. Where both types of wind energy devices are
identified in Table 2, an audit is required for only one of these
devices.
(e) Bracketed Measures. A State is required to include in its State
Plan those measures that appear in brackets in Table 1 or 2 only when a
State changes its audit requirements by deleting any measures from its
State Plan based upon the amended RCS measures tables.
(f) Table of Program Measures by State. All other program measures
are displayed in Table 2 organized by State where:
R=Resident-installed costs
C=Contractor-installed costs
X=2-kW nonutility interconnected DC wind machine without battery
storage
Y=2-kW interconnected AC wind machine without battery storage.
10 CFR 456.1303 Pt. 456, App. II
10 CFR 456.1303 Appendix II to Part 456 -- Prototypical House
Assumptions
(a) Reference House. (1) The prototypical house, on which the RCS
measures table is based, is the ranch style home developed in the
National Bureau of Standards document NBSIR 77-1309. This house is
based upon a National Association of Home Builders (NAHB) survey of
84,000 homes built by 1,600 builders selected randomly from the builder
members of NAHB. The house is typical of ranch style houses built in
1974.
(2) The house has been slightly modified to make it more
representative of existing housing stock and to allow for the
calculation of all RCS measures. DOE has elected to reduce the
insulation levels from the NAHB survey (1974) level of R-19 ceiling and
R-11 walls to R-7 insulation in the ceiling and no insulation in the
walls as a basis for the measures table. Insulation manufacturers' data
on residential retrofit applications for ceiling insulation indicate
that the majority of existing attics that have not been reinsulated have
an existing R-Value of between R-5 and R-9. The furnace/hot water space
has been enlarged to accommodate oil furnaces and storage for solar
domestic water heaters. The prototypical house, to provide the basis
for audits, is assumed to have the features necessary for the
application of renewable energy measures. For example, it was assumed
to have a south-facing roof suitable for solar collectors, no
obstruction to wind energy systems, and a swimming pool that could use a
solar pool heater. It is recognized that many residences do not have
these features.
(3) The prototypical house and assumptions were chosen as
representative of typical homes in the Nation which could benefit from
RCS measures. States are encouraged to review the prototypical house
relative to construction practices on the local level. A State may
submit an amended RCS measures table based upon modifications to the
prototypical house if documentation supports such requests.
(b) Characteristics of the Prototypical House. (1) Infiltration.
The prototypical house is assumed to have deteriorated caulking on
window and door frames, no weatherstripping, and no gaskets on
electrical outlets. Some minor cracks are assumed to exist in ceiling
and floor joints. Some wiring and pipe penetration is assumed through
the attic floor.
Existing conditions also include undampered vents, no fireplace, and
at least 13 entrances and exits through the home per average day. The
infiltration category of the prototypical house is essentially the
''poor'' category listed in the RCS Model Audit.
(2) Insulation. As indicated above, the prototypical house is
assumed to have no wall insulation, R-7 ceiling insulation in a vented
attic, and no floor or crawl space insulation. The walls with 2 x 4
studs on 16-inch centers have a thermal conductance of 0.21 Btu per hour
per square foot per degree Fahrenheit (Btu/h/ft2/ F). The thermal
conductance of the ceiling with joists or truss cords on 24-inch centers
is 0.12 Btu/h/ft2/ F. The thermal conductance of the floor with 2 x 10
floor joists on 24-inch centers and carpeting and vented crawl space is
0.19 Btu/h/ft2/ F.
(3) Windows. All glazing is assumed to be single pane with a thermal
conductance of 1.13 Btu/h/ft2/ F.
(4) Water Heater. The water heater is assumed to be more than 3
years old and is in conditioned space with adequate clearance for an
insulation jacket.
(5) Space Heating and Cooling. Primary space conditioning equipment
for the prototypical home includes one of the following: electric
resistance furnace, electric resistance baseboard, electric resistance
radiant ceiling or wall panels, electric heat pump, electric boiler,
natural gas-fired boiler, gas-forced air, or oil-fired furnace. An
electric drive central air-conditioner is assumed. Industry accepted
seasonal efficiencies for existing systems more than 5 years old, and
new commercially available systems are used in the calculations. In the
prototypical house, combustion air is taken from conditioned space, if
required. Oil burners are not retention or wet base types. Natural gas
pilot lights are assumed to be on for the heating season. All existing
systems in the reference house are more than 5 years old.
(6) Distribution Systems. Distribution ducting and hydronic pipe are
assumed to be in unconditioned areas and are uninsulated.
(7) Heating and Cooling System Controls. The prototypical house is
assumed not to have a clock thermostat. It is also assumed that there
is no manual nighttime temperature setback.
(8) Heat Reflecting and Heat Absorbing Window and Door Material. The
prototypical house has 127 sq. ft. of unshaded windows which face east
and west. For purposes of calculation, the house was oriented so that
the ends of the house which contained no glazing face north and south.
(9) Solar Domestic Hot Water Systems. It is assumed that 80 gallons
of hot water are used per day by a family of four (ASHRAE Systems
Handbooks, 1980). The hip roof is not shaded and has an adequate
south-facing area for collectors.
(10) Replacement Solar Pool Heaters. The 450 sq. ft. swimming pool
is assumed to have a cover that is put in place in nonuse hours.
(11) Wind Energy Systems. There is no major obstruction to wind.
The size of the wind generator is 2 kW, and all energy generated is
used. The analysis was performed for residences that used electricity
for heating and water heating.
(c) Thermal Envelope.
-- Glazing
Single panel U-Value=1.13
East area + sliding glass door=72 ft /2/
West area=55 ft /2/
Total area=127 ft /2/
-- Walls
No insulation
U wall=0.24 -- excludes the stud cross section and represents 75
percent of the exposed area
U studs=0.13 -- which is 25 percent of the exposed area
U overall=0.21 -- which is the weighted value of the U of the wall
and the U of the stud cross section
South wall area=224 ft /2/
North wall area=224 ft /2/
East wall area=264 ft /2/
West wall area=260 ft /2/
-- Ceiling
R-7 insulation
U ceiling=0.115 -- excludes the truss cord and represents 90 percent
of the exposed area
U truss=0.17 -- which is 10 percent of the exposed area
U overall=0.12
Area=1,176 ft /2/
-- Front Entry Door
U=0.47 (hardwood door)
Area=21 ft /2/
-- Floor Above Crawl Space
No insulation
U floor=0.2 -- excludes the joist and represents 90 percent of the
exposed area
U joist=0.09 -- which is 10 percent of the exposed area
U overall=0.19
Area=1,176 ft /2/
Insert illustration 0181
Insert illustrations 0182 and 0183
10 CFR 456.1303 Pt. 456, App. III
10 CFR 456.1303 Appendix III to Part 456 -- Multifamily Applicability
Criteria and Procedures for Determining Usage Cutoff Levels
(a) General. (1) For those program measures identified in Appendix
I, a State or nonregulated utility has the following options regarding
audits for dwelling units in residential buildings containing more than
four dwelling units (multifamily dwelling units):
(i) Accept the measures indicated by Appendix I for use in
multifamily dwelling units.
(ii) Use the DOE multifamily applicability criteria and/or procedures
for determining specific cutoffs for heating energy use, cooling energy
use, or domestic hot water use in paragraphs (b), (c), (d), and (e) of
this appendix for all or some of the program measures identified in
Appendix I.
(iii) Develop a method for determining applicability and submit it to
DOE for approval in accordance with 456.306(b).
(2) DOE has not developed multifamily applicability criteria or
methods for determining usage cutoff levels for caulking,
weatherstripping, duct and pipe insulation, storm or thermal windows,
heat reflective and heat absorbing window materials, and IID's. DOE has
determined that these measures have the same applicability in
multifamily dwelling units as in the prototypical house.
(3) DOE has developed specific applicability criteria for ceiling
insulation, floor insulation, wall insulation, clock thermostats, storm
or thermal doors, water heater insulation, solar domestic water heaters,
replacement solar swimming pool heaters, combined active solar space
heating and solar domestic hot water systems, wind energy devices,
direct gain systems, window heat gain retardants, window heat loss
retardants, solaria/sunspace systems and indirect gain systems.
(4) In addition to the applicability criteria, methods for
determining usage cutoff levels have been developed for replacement
furnaces or boilers, replacement oil burners, flue dampers, replacement
central air-conditioners, solar domestic water heaters, active solar
space heating systems and combined active solar space heating and solar
domestic hot water systems because they may have significantly different
simple paybacks for multifamily dwelling units than for the single
family prototypical house. The payback for these measures is dependent
on heating energy use, cooling energy use, or hot water use. An audit
for each of these measures is required if the annual energy usage or hot
water usage in a multifamily dwelling unit is high enough such that a
7-year payback is probable. That level of usage for which a 7-year
payback is probable is the cutoff level for that measure.
(b) Applicability criteria. (1) Ceiling Insulation. Ceiling
insulation is applicable when the audit is for ceilings separating a
conditioned space from an unconditioned space and when it is physically
practical to insulate the ceiling.
(2) Floor Insulation. Floor insulation is applicable for floors
separating a conditioned space from an unconditioned space and when it
is physically practical to insulate the floor.
(3) Wall Insulation. Wall insulation is applicable for walls
separating a conditioned space from an unconditioned space and when it
is physically practical to insulate the walls.
(4) Storm or Thermal Doors. A storm or thermal door is applicable if
the door separates a conditioned space from an unconditioned space.
(5) Clock Thermostats. A clock thermostat is applicable when the
thermostat is not part of the furnace.
(6) Water Heater Insulation. Water heater insulation is applicable
when there is an individual water heater for that multifamily dwelling
unit.
(7) Solar Domestic Water Heaters. A solar domestic water heater is
applicable when there is an individual water heater for that multifamily
dwelling unit. This measure may also be subject to a hot water usage
cutoff.
(8) Combined Active Solar Space Heating and Solar Domestic Hot Water
Systems. A combined active solar space heating and solar domestic hot
water system is applicable when there is an individual water heater for
that multifamily dwelling unit. This measure may also be subject to a
hot water usage cutoff.
(9) Wind Energy Devices. A wind energy device is not applicable for
multifamily dwelling units.
(10) Replacement Solar Swimming Pool Heaters. A replacement solar
swimming pool heater is not applicable for multifamily dwelling units.
(11) Direct Gain Systems. A direct gain systems is applicable when
the living area has either a south-facing (+ or ^45 of true south) or
an integral south-facing (+ or^45 of true south) roof with tilt angle
measured from the horizontal greater than the local latitude that is
free from major obstruction to solar radiation.
(12) Window Heat Gain Retardants. A window heat gain retardant is
applicable when the living area has a window that is not shaded from
summer sunshine and the residence has substantial use of energy for air
conditioning.
(13) Window Heat Loss Retardants. A window heat loss retardant is
applicable when the living area has a window with fewer than three
panes.
(14) Solaria/sunspace Systems. A solaria/sunspace system is
applicable when the living area has either a south-facing (+ or ^45 of
true south), ground level wall, or a south-facing adjacent patio, porch
or balcony that is free from major obstruction to solar radiation and
can support the weight of a retrofit solaria/sunspace.
(15) Indirect Gain Systems. A Thermosyphon Air Panel is applicable
when the living area has a south-facing (+ or ^45 of true south) wall
which is not solid masonry construction, which is accessible for
installation from the outside and is free from major obstruction to
winter insulation. A Trombe wall is applicable when the living area has
a south-facing (+ or ^45 of true south) solid masonry wall that is
accessible for installation from the outside and is free from major
obstruction to solar radiation. A water wall is applicable when the
living area has a south-facing (+ or ^45 of true south) ground level
wall that is free from major obstruction to solar radiation, and the
ground level floor is slab on grade or has sufficient structural
strength to support a water wall.
(c) Heating Energy Use Cutoffs. Heating energy use cutoffs shall be
determined for replacement furnances or boilers, replacement oil
burners, flue dampers, active solar space heating, and combined solar
space heating and solar domestic hot water systems. After all heating
energy use cutoff levels for each category of fuel type have been
determined, a State has the option to use the lowest of these levels as
the cutoff for all of the heating measures. The auditor will audit for
a measure if the annual heating energy use of the dwelling is greater
than the heating energy use cutoff for that measure. The annual heating
energy use of a dwelling unit must be determined by removing the
contribution of nonspace heating sources (such as water heating or
lighting) from the total energy usage.
(1) Replacement Furnace or Boiler. The following formula shall be
used to determine the heating energy use cutoff for oil, gas, electric,
and heat pump heating systems:
Where
ERFCO=annual heating energy consumption (based on assumed worst
existing system) necessary to give a 7-year simple payback on
replacement furnaces or boilers (replacement furnace or boiler energy
cutoff)
CRF=installed capital cost^tax credit
7 is the payback period in years
LEP=local energy price, $/unit energy (same energy units as ERFCO)
Where
nexisting=assumed efficiency of existing heating system, varies by
climate zone and fuel type,
nnew=efficiency of new improved heating system, also varies by
climate zone and fuel type.
Use the values in the following table for *n. The values in this
table were calculated based on the assumption of a relatively
inefficient existing furnace or heat pump. All existing efficiencies
were taken from the RCS Model Audit.
(2) Replacement Oil Burner. The following formula shall be used to
determine the heating energy use cutoff for replacement oil burners.
Where
ERBCO=annual heating energy consumption necessary to give a 7-year
payback on a replacement oil burner (replacement oil burner energy
cutoff)
CRB=cost of installed replacement oil burner ^ tax credit
LEP=local energy price, $/unit energy (same energy units as ERBCO)
7 is the payback period in years
0.18 is a high estimate of the proportion of heating energy that may
be saved due to a replacement oil burner.
(3) Flue Damper. The following formula shall be used to determine
the heating energy use cutoff for flue dampers for gas heating systems.
Where
EFDCO=annual energy consumption necessary to give a 7-year payback on
a flue damper (flue damper energy cutoff)
CFD=installed flue damper cost ^ tax credit
LEP=local energy price, $/unit energy (same energy units as EFDCO)
7 is the payback period in years
0.1 is a high estimate of the proportion of heating energy that may
be saved due to a flue damper.
(4) Active Solar Space Heating. (i) The cost of active solar space
heating systems depends on insulation as well as heating energy use,
which makes it difficult to produce a generic formula that will indicate
the annual heating energy use cutoff level which corresponds to a 7-year
simple payback. Therefore, a State shall determine the heating energy
use cutoff level by calculating the simple payback associated with a
range of annual heating energy uses and then, by successive
approximation, determine the heating energy use cutoff level that
corresponds to a 7-year simple payback.
(ii) Use the following procedure to determine the heating energy use
cutoff for solar space heating:
(A) Determine savings (using each heating fuel type) and costs for
active solar space heating using an approved audit procedure, such as
the Model Audit, for a range of annual heating energy uses. For each
fuel, choose an annual heating energy use cutoff level, based on these
calculations, which corresponds to a 7-year simple payback.
(B) Calculations should assume: no obstruction to solar radiation;
due south orientation of collectors; a solar savings fraction
consistent with the values given in the Model Audit for the climate
(solar savings fraction is the percent of the heating load provided by
the Solar system); enough roof area to provide the solar savings
fraction indicated above; and the tilt of the collector should be
optimal for the specified latitude.
(5) Combined Solar Space Heating and Solar Domestic Hot Water
Systems. (i) The cost of combined active solar space heating and solar
domestic hot water systems depends on insulation as well as heating
energy use which makes it difficult to produce a generic formula that
will indicate the annual heating energy use cutoff level which
corresponds to a 7-year simple payback. Therefore, a State shall
determine the heating energy use cutoff level by calculating the simple
payback associated with a range of annual heating energy uses and then
by successive approximations determine the heating energy use cutoff
level that corresponds to a 7-year simple payback.
(ii) Use the following procedures to determine the cutoff for
combined solar space heating and domestic hot water systems.
(A) Determine savings (using each heating fuel type) and costs for
active solar space heating using an approved audit procedure, such as
the Model Audit, for a range of annual heating energy uses. For each
fuel, choose an annual heating energy use cutoff level, based on these
calculations, which corresponds to a 7-year simple payback.
(B) Calculations should assume: no obstruction to solar radiation;
due south orientation of collectors; a solar savings fraction
consistent with the values given in the Model Audit for the climate
(solar savings fraction is the percent of the heating load provided by
the solar system); enough roof area to provide the solar savings
fraction indicated above; the tilt of the collector should be optimal
for the specified latitude; and the hot water usage is 80 gallons per
day with the water temperature set at 120 F.
(d) Cooling Energy Use Cutoffs. (1) Cooling energy use cutoffs shall
be determined for replacement central air-conditioners.
(2) Replacement Central Air-Conditioners. (i) The following formula
shall be used to determine the cooling energy use cutoff for replacement
central air-conditioners:
Where
CRAC=installed cost of replacement central air-conditioner
7 is the payback period in years
LEP=local energy price $/unit energy
COPexisting=assumed coefficient of performance of existing system
COPnew=improved coefficient of performance of new system.
(ii) The value of 0.46 may be used for COP. This value is based on
an assumed existing SEER of 6.6 (COP of 1.9) and a new SEER of 12.0 (COP
of 3.5).
(iii) An audit should be conducted for replacement central
air-conditioners if the annual cooling energy use of the dwelling unit
is greater than the cooling energy cutoff. The annual cooling energy
use of the dwelling unit shall be determined by removing the
contribution of noncooling sources, (such as lighting, appliances, and
water heating) from the total energy consumption.
(e) Domestic Hot Water Use Cutoff. (1) A domestic hot water use
cutoff level shall be determined for solar domestic hot water systems.
The cost of solar domestic water heater systems depends on insulation as
well as hot water use which makes it difficult to produce a generic
formula which will indicate the hot water use cutoff level which
corresponds to a 7-year simple payback. Therefore, a State shall
determine the simple payback associated with a range of daily hot water
uses and then by successive approximation determine the hot water use
cutoff level that corresponds to a 7-year simple payback.
(2) Solar Domestic Hot Water System. Use the following procedures to
determine the domestic hot water use cutoff for solar domestic hot water
systems.
(i) Determine savings (for each water heating fuel type) and costs
for solar domestic hot water, using an approved audit procedure, such as
the DOE Model Audit, for a range of gallons per day of hot water usage.
(ii) Based on the sample calculations, determine what is the
gallons-per-day cutoff level for each fuel type which corresponds to a
7-year simple payback. Calculations should assume: no obstruction to
solar radiation; due south orientation of collectors; a solar savings
fraction consistent with the values given in the Model Audit for the
climate (the solar savings fraction is the percent of the water heating
load provided by the solar system); enough roof area to provide the
solar savings fraction indicated above; and the tilt of the collector
should be optimal for the specified latitude.
(iii) This gallons-per-day number shall be used as a cutoff level for
determining whether to audit for a solar domestic hot water system in a
multifamily dwelling unit. A method must be developed for auditors to
determine gallons-per-day usage at the dwelling unit. (For example, the
DOE Model Audit determines gallons-per-day usage using the number of
people in residence and the presence of a dishwasher and/or a washing
machine.)
10 CFR 456.1303 PART 459 -- RESIDENTIAL ENERGY EFFICIENCY PROGRAM
Sec.
459.101 Purpose and scope.
459.102 Availability of financial assistance.
459.103 Award and administration of financial assistance.
Authority: Part 5 of Title II of the National Energy Conservation
Policy Act, 42 U.S.C. 8235 et seq., as added by Subtitle C of Title V of
the Energy Security Act; Department of Energy Organization Act, 42
U.S.C. 7101 et seq.
Source: 47 FR 19982, May 10, 1982, unless otherwise noted.
10 CFR 459.101Purpose and scope.
As required by section 265(b) of the National Energy Conservation
Policy Act, as amended, 42 U.S.C. 8235d, this part sets forth the
procedures for awarding and administering financial assistance under the
Residential Energy Efficiency Program.
10 CFR 459.102Availability of financial assistance.
No financial assistance will be made available under this part
without a prior solicitation issued in accordance with 10 CFR Part 600
and then only subject to the availability of appropriated funds. The
Department of Energy will not consider any unsolicited proposal for
financial assistance under this part.
10 CFR 459.103Award and administration of financial assistance.
The award and administration of financial assistance under this part
are governed by:
(a) Part 5 of Title II of the National Energy Conservation Policy
Act, as amended, 42 U.S.C. 8235 et seq.; and
(b) Applicable provisions of 10 CFR Part 600, insofar as these
provisions do not conflict with Part 5 of Title II of the National
Energy Conservation Policy Act, as amended.
10 CFR 459.103 PART 463 -- ANNUAL REPORTS FROM STATES AND NONREGULATED
UTILITIES ON PROGRESS IN CONSIDERING THE RATEMAKING AND OTHER REGULATORY
STANDARDS UNDER THE PUBLIC UTILITY REGULATORY POLICIES ACT OF 1978
Sec.
463.1 Purpose and scope.
463.2 Definitions.
463.3 Reporting requirement.
Authority: Public Utility Regulatory Policies Act of 1978, Pub. L.
95-617 (16 U.S.C. 2601 et seq.); Department of Energy Organization Act,
Pub. L. 95-91 (42 U.S.C. 7101 et seq.).
Source: 44 FR 47321, Aug. 13, 1979, unless otherwise noted.
10 CFR 463.1Purpose and scope.
This part establishes the manner in which State regulatory
authorities and certain nonregulated electric and gas utilities shall
report to DOE under sections 116 and 309 of the Public Utility
Regulatory Policies Act of 1978 (PURPA) Pub. L. 95-617, 92 Stat. 3117
et seq., with respect to their progress in considering the ratemaking
and other regulatory standards established by sections 111(d), 113(b)
and 303(b) of PURPA.
10 CFR 463.2Definitions.
As used in this part --
''Covered electric utilities'' and ''covered nonregulated electric
utilities'' mean those electric utilities whose total sales of electric
energy for purposes other than resale exceeded 500 million
kilowatt-hours during any calendar year beginning after December 31,
1975, and before the immediately preceding calendar year.
''Covered gas utilities'' and ''covered nonregulated gas utilities''
mean those gas utilities whose total sales of natural gas for purposes
other than resale exceeded 10 billion cubic feet during any calendar
year beginning after December 31, 1975, and before the immediately
preceding calendar year.
''DOE'' means the Department of Energy.
''Electric utility'' means any person, State agency or federal agency
which sells electric energy.
''Federal agency'' means an executive agency (as defined in section
105 of Title 5 of the United States Code).
''Gas utility'' means any person, State agency or Federal agency
engaged in the local distribution of natural gas and the sale of natural
gas to any ultimate consumer of natural gas.
''Nonregulated electric utility'' means any electric utility with
respect to which no State regulatory authority has ratemaking authority.
''Nonregulated gas utility'' means any gas utility with respect to
which no State regulatory authority has ratemaking authority.
''Person'' means an individual, partnership, corporation,
unincorporated association or any other group, organization or entity.
''PURPA'' means the Public Utility Regulatory Policies Act of 1978,
Pub. L. 95-617, 92 Stat. 3117 et seq.
''Rate'' means (a) any price, rate, charge or classification made,
demanded, observed, or received with respect to the sale of electric
energy by an electric utility to an electric consumer or the sale of
natural gas to a gas consumer, (b) any rule, regulation, or practice
respecting any such rate, charge or classification, and (c) any contract
pertaining to the sale of electric energy to an electric consumer or the
sale of natural gas to a gas consumer.
''Ratemaking authority'' means authority to fix, modify, approve or
disapprove rates.
''Sale'' means a transfer to a purchaser for consideration, and when
used with respect to electric energy includes any exchange of electric
energy, and when used with respect to natural gas includes any exchange
of natural gas.
''State'' means a State, the District of Columbia, and Puerto Rico.
''State agency'' means a State agency, political subdivision thereof,
and any agency or instrumentality of either.
''State regulatory authority'' means any State agency which has
ratemaking authority with respect to the sale of electric energy by any
electric utility, or the sale of natural gas by any gas utility, other
than by such State agency, and in the case of an electric utility with
respect to which the Tennessee Valley Authority has ratemaking
authority, such term means the Tennessee Valley Authority.
10 CFR 463.3Reporting requirements.
(a) Each State regulatory authority, with respect to each covered
electric and gas utility for which it has ratemaking authority, and each
covered nonregulated electric and gas utility shall report to DOE, on or
before the effective date of this rule in 1982, and by February 28 of
each year from 1983 through 1989, on its progress in considering the
ratemaking and other regulatory standards established by sections
111(d), 113(b) and 303(b) of PURPA. Any State regulatory authority or
covered nonregulated electric and gas utility which has, on or before
the date that this rule becomes effective, previously filed a report
which covers any portion of the year 1981 shall not be required to file
any other report on this subject in 1982.
(b) The requirements of paragraph (a) of this section do not apply to
the operations of an electric or gas utility, or to proceedings
respecting such operations, to the extent that such operations or
proceedings relate to sales of electric energy or natural gas for
purposes of resale.
(c) The reporting period for reports required by paragraph (a) of
this section shall be the 12 month period ending December 31 of the year
in which the report is due, except that the reporting period for the
report due on the effective date of this rule shall be July 1, 1980,
through December 31, 1981.
(d) The report required by paragraph (a) must be submitted on Form
ERA-166: PURPA Annual Report on Electric and Gas Utilities, as it may
be revised from time to time. (OMB control number 1904-0060)
(44 FR 47321, Aug. 13, 1979, as amended at 46 FR 63209, Dec. 31,
1981; 47 FR 33680, Aug. 4, 1982)
10 CFR 463.3 PART 465 -- ENERGY EXTENSION SERVICE
Sec.
465.1 Purpose and scope.
465.2 Definitions.
465.3 Comprehensive Energy Extension Service program.
465.4 National Advisory Board.
465.5 Financial assistance.
465.6 Annual State applications.
465.7 Submission and contents of State plans.
465.8 Approval of annual State applications and State plans.
465.9 Development and implementation of a State plan by the Director.
465.10 Administrative review.
465.11 Prohibited expenditures.
465.12 Reports.
465.13 Administration of financial assistance.
Authority: National Energy Extension Service Act, enacted as title V
of the Energy Research and Development Administration Authorization Act
of 1977, title V of Pub. L. 95-39, 91 Stat. 191 et seq. (42 U.S.C.
7001 et seq.); Department of Energy Organization Act, Pub. L. 95-91,
91 Stat. 965 et seq. (42 U.S.C. 7101 et seq.); Federal Grant and
Cooperative Agreement Act of 1977, Pub. L. 95-224, 92 Stat. 3 et seq.
(41 U.S.C. 501 et seq.); Section 1007(b) of the Omnibus Budget
Reconciliation Act of 1981, Pub. L. 97-35, 95 Stat. 611 (42 U.S.C.
7270 Note); E.O. 12009 (42 FR 46267); E.O. 12291 (46 FR 13193).
Source: 48 FR 32724, July 18, 1983, unless otherwise noted.
10 CFR 465.1Purpose and scope.
This part contains the regulation adopted by DOE to establish a
comprehensive Energy Extension Service program which shall --
(a) Establish a positive energy outreach program directed toward
small businesses and individual energy users and the organizations that
influence their energy consumption;
(b) Stimulate, provide for and supplement programs for the conduct of
evaluation, planning and other technical assistance of energy
conservation efforts, including energy outreach activities of States;
and
(c) Provide financial and technical assistance to the States for
State plans which contribute to the implementation of the comprehensive
Energy Extension Service program.
10 CFR 465.2 Definitions.
As used in this part --
Act means the National Energy Extension Service Act, title V of Pub.
L. 95-39, 42 U.S.C. 7001 et seq.
Assistant Secretary means the Assistant Secretary for Conservation
and Renewable Energy or official to whom the Assistant Secretary's
functions may be redelegated by the Secretary.
Barriers to energy conservation means problems or obstacles
identified by small energy users which prevent or hinder them from
adopting conservation techniques and technologies.
Building means any structure which includes provisions for a heating,
cooling or hot water system, or which is used as a residential dwelling
unit.
Community action agency means a private corporation or public agency
established pursuant to the Economic Opportunity Act of 1964, Pub. L.
88-452, 42 U.S.C. 2701 et seq., which is authorized to administer funds
received from Federal, State, local or private funding entities to
assess, design, operate, finance and oversee antipoverty programs.
Conservation techniques and technologies means actions likely to
result in energy conservation.
Deputy Assistant Secretary means the Deputy Assistant Secretary for
Technical and Financial Assistance or any official to whom the Deputy
Assistant Secretary's functions may be redelegated by the Assistant
Secretary.
Director means the Director of the EES office of DOE.
DOE means the Department of Energy.
Energy audit means a procedure to measure the consumption or cost of
energy in order to identify conservation techniques and technologies in
a building or industrial process.
EES means Energy Extension Service.
EES office means the national office of DOE established to develop
and carry out the comprehensive EES program in accordance with the
provisions of this part.
Energy conservation means efficient energy use or the utilization of
renewable energy resources.
Governor means the chief executive officer of a State and the Mayor
of the District of Columbia, or a person fully designated in writing by
the Governor to act upon his or her behalf.
Grantee means a State or entity of the State named in the notice of
grant award as the recipient of financial assistance provided under this
part.
Operations Office Manager means the manager of a DOE Operations
Office or the manager's designee, or any official to whom the manager's
functions may be redelegated by the Secretary.
SECP means the State energy conservation plans developed and
implemented pursuant to 10 CFR Part 420.
Secretary means the Secretary of the Department of Energy.
Service means technical assistance, instruction, information
dissemination, energy audit or a practical demonstration concerning one
or more conservation techniques and technologies.
Small business means an independently owned concern which together
with its affiliates is not dominant in its field and which does not have
more than 400 employees.
Small energy users means residential consumers, individuals and
groups of individuals, small businesses including agricultural and
commercial establishments, and units of State and local governments.
Special State project means a unique or innovative activity which is
likely to bring about energy conservation in furtherance of the
objectives of the Act, and which is not part of a State plan.
State means any State of the United States, the District of Columbia,
the Commonwealth of Puerto Rico, Guam, the Virgin Islands, American
Samoa, the Commonwealth of the Northern Mariana Islands, and the Trust
Territory of the Pacific Islands.
State program means a set of related services provided to a target
audience which is used to implement a portion of a State plan.
Target audience means the persons intended to receive services
provided under a State program.
Technical assistance means assistance, other than direct financial
assistance, including instruction, expert advice, information
dissemination and practical demonstrations.
Technical support means activities provided by a State, such as
specialized analyses, preparation of materials, training or other
activities, which are necessary to implement a State plan effectively.
(48 FR 32724, July 18, 1983, as amended at 55 FR 41327, Oct. 10,
1990)
10 CFR 465.3 Comprehensive Energy Extension Service program.
(a) DOE has established the EES office, administered by a Director,
to develop and carry out the comprehensive EES program established by
this part.
(b) The comprehensive EES program shall identify, develop and
demonstrate in a practical manner, opportunities for energy
conservation. This program shall be developed and implemented with
particular regard for increasing the capability of small energy users to
make informed energy decisions.
(c) The Director shall implement the comprehensive EES program by --
(1) Carrying out activities, through technical assistance where
appropriate, for the identification, development and practical
demonstration of opportunities for energy conservation;
(2) Collecting information and undertaking actions to eliminate
barriers to energy conservation identified by small energy users;
(3) Carrying out activities that shall encourage the sharing of
information, experience and meterials among the States regarding the
comprehensive EES program;
(4) Providing financial assistance through the Operations Office
Manager for the implementation of a State plan; and
(5) Providing technical assistance for the development,
implementation or modification of a State plan.
(d) The Director shall take such steps as he or she may determine to
be necessary to minimize conflict between existing services in the
private sector that are similar to the services provided under the
comprehensive EES program.
10 CFR 465.4 National Advisory Board.
(a) The Secretary shall appoint a National Advisory Board which shall
consist of not less than 15 nor more than 20 members. The members shall
include persons representative of the interests of State, county and
local governments, State universities, community colleges, community
action agencies, energy users, small businesses and agriculture.
(b) The Secretary shall designate one member of the Board to serve as
Chairman and shall provide the Board with the services and facilities as
may be necessary to carry out its functions.
(c) The Board shall carry on a continuing review of the operation of
the comprehensive EES program established by 465.3 and the State plans
approved by the Operations Office Manager according to 465.8, for the
purpose of evaluating their effectiveness in achieving the objectives of
the Act and determining how their operation might be improved in order
to further these objectives.
(d) The Board shall report annually to the Congress, the Secretary,
and the Director on the status of the comprehensive EES program,
including any recommendations the Board may have for administrative or
legislative changes needed to improve operation of the comprehensive EES
program.
(e) The Secretary shall reimburse Board members for the full amount
of any expenses necessarily incurred by them in the performance of their
duties as such.
10 CFR 465.5 Financial assistance.
(a) The Operations Office Manager shall provide financial assistance
from funds available for any fiscal year to each State having an
approved annual application according to 465.8.
(b) Financial assistance shall be allocated among the States from
funds available for any fiscal year based on the following formula --
(1) One-half shall be divided equally among all States; and
(2) One-half shall be divided on the basis of the State's population
as reported by the Department of Commerce, Bureau of the Census, in the
most recent decennial census.
(c) If a State's allocation of financial assistance is not obligated
by the Operations Office Manager during the fiscal year, the allocation
shall be reallocated among the States according to paragraph (b) of this
section for the program's next funding cycle.
(d) Notwithstanding the provisions of paragraph (b) of this section,
the Director may reserve from the funds appropriated for any fiscal year
an amount to provide financial assistance to States for special State
projects. This amount shall be determined by the Director, but in no
event shall exceed 10 percent of the appropriated funds.
(e) Each State shall provide cash, in kind contributions, or both for
EES activities in an amount totalling not less than 20 percent of the
Federal funds allocated to it for this program. Cash and in kind
contributions used to meet this State cost-sharing requirement are
subject to the limitations on expenditures described in 465.11(a). The
type and amount of State cost-sharing shall be identified in the annual
application.
(f) The budget period covered by the financial assistance provided to
a State according to 465.5(b) will be set by the State within
parameters established by DOE.
10 CFR 465.6 Annual State applications.
(a) To be eligible for financial assistance under this part, a State
shall submit to the Operations Office Manager an original and two copies
of an annual State application executed by the Governor. The date for
submission of annual State applications shall be determined by DOE.
(b) An annual State application shall contain --
(1) The State plan or modifications of it, as required by 465.7 (a)
and (b) respectively;
(2) A total program budget broken out by object class category and by
source of funding for the budget period for which financial assistance
will be provided;
(3) A budget and listing of milestones for each State program or
function contained in the State plan for the budget period for which
financial assistance will be provided;
(4) A description of policies and procedures employed by the State
which assure that financial assistance provided under this part does not
supplant the expenditure of State or local funds for the same purposes,
but rather supplements Federal, State, or local funds, and increases the
expenditure of the State or local funds to the maximum extent
practicable;
(5) A written summary and chronology of the procedures which were
used to provide organizations and individuals with opportunity to
comment on the State plan prior to or during its development. The
opportunity to comment shall be provided to representatives of energy
users and producers; State, county, and local officials; State
universities and community colleges; cooperative extension services;
community action agencies; and other public, private, or nonprofit
organizations which are involved in active energy outreach activities.
The written summary shall include --
(i) The name of the organizations afforded an opportunity to comment;
and
(ii) How the comments received affected the contents of the State
plan.
(6) A description of anticipated environmental impacts of any
services which include the modification of buildings or structures to
provide a practical demonstration of conservation techniques and
technologies.
(c) The Governor may request an extension of the annual submission
date by submitting a written request to the Operations Office Manager
not less than 15 days prior to the date referred in the paragraph (a) of
this section. The extension shall be granted if, in the Operations
Office Manager's judgment, acceptable and substantial justification is
shown and the extension would further the objectives of the Act.
(Approved by the Office of Management and Budget under control
numbers 1904-0041 and 1901-0127)
10 CFR 465.7 Submission and contents of State plans.
(a) A State shall submit a State plan with --
(1) The first annual State application; and
(2) The annual State application submitted every 3 years thereafter.
(b) A State shall submit, with the annual State application,
modifications to the State plan, if appropriate, for the years not
referred to in paragraph (a) of this section.
(c) A State plan shall be developed for a 3-year period and contain
--
(1) A description of the objectives to be achieved for the 3-year
period by implementation of the State plan, which shall include --
(i) Why the objectives were selected, with particular reference to
potential energy savings, increased use of renewable resources and the
types and numbers of people affected;
(ii) How the State programs included in the State plan, and the
emphasis and funding given to each, together represent a strategy to
achieve these objectives;
(iii) How implementation of the State plan shall supplement and be
coordinated with other energy conservation programs being carried out in
the State with Federal funds or under other Federal laws; with
particular reference to university programs providing extension services
and the State's SECP;
(iv) How existing organizations will be used to the optimum extent to
assist in the implementation of the State plan;
(v) How the State plan provides for information dissemination to
small businesses and addresses organizations which influence the energy
consumption of small energy users;
(vi) How the State plan makes energy audits available to small energy
users, within personnel and funding limitations;
(2) A description for each State program in the State plan, which
shall include --
(i) The target audience, why it was selected and the estimated number
of persons which the State program expects to reach;
(ii) The services to be provided, including --
(A) How the services will meet the needs of the target audience;
(B) The conservation techniques and technologies to be used in each
service;
(C) The type and estimated number of any energy audits if any are
included; and
(D) The geographic areas in which the services shall be delivered and
why these areas were selected;
(iii) Any technical support which is necessary to provide the
services, including the type of organization that will provide the
technical support and why that type of organization was selected; and
(iv) The type of organization which shall implement the State program
and the type of any other organizations which shall provide a service to
the target audience, why the selection was made and the approximate
number of any new personnel to be employed to implement the State
program;
(3) A description of the organization which shall administer the
overall development and implementation of the State plan, which shall
include --
(i) Why the administering organization was selected;
(ii) The provisions made for coordination between the administering
organization and any other organization assisting in the implementation
of the State plan; and
(iii) The relationship between the administering organization and the
grantee if the two are not the same;
(4) A description of the methods and procedures which shall be used
to --
(i) Identify barriers to energy conservation from responses which
shall be obtained from target audiences;
(ii) Communicate information concerning the barriers to energy
conservation to organizations within the State that have the capability
or authority to remove or influence the barriers; and
(iii) Periodically report the results of such communication to the
target audiences identified in paragraph (c)(4)(i) of this section;
(5) A description of the administrative procedures to be used in the
implementation of the State plan which shall include --
(i) The procedures to be used to respond to suggestions and inquiries
from the public regarding energy conservation;
(ii) The procedures to be used to publicize and disseminate
up-to-date and easily understood information on the services available
to small energy users under the State plan and under other Federal
programs and activities of the State regarding conservation techniques
and technologies; and
(iii) The system to be used to review, for technical accuracy, any
publication or other material which the State shall prepare or use in a
State program;
(6) A description of the purpose, methods and procedures of the
independent evaluation activities, if any, that the State shall
undertake regarding the State programs or services;
(7) A description of any additional technical support not described
in (c)(2)(iii) of this section which is required to facilitate
implementation of the State plan. If existing organizations are not
available to provide this additional technical support or the technical
support identified in paragraph (c)(2)(iii), the State may propose to
establish a technical support institute, at one or more colleges or
universities designated by the Governor. The purpose of the technical
support institute shall be to assist in the implementation of the State
plan by providing analyses and technical support which is required for
effective implementation of the State plan. If such an institute is
proposed, the State shall provide a detailed justification which shall
describe --
(i) Why the institute is needed;
(ii) How the institute specifically relates to the implementation of
the State plan; and
(iii) The purpose, location, size, and specific activities of the
institute; and
(8) A description of the procedures that the grantee will use to
achieve timely implementation of the State plan.
(Approved by the Office of Management and Budget under control number
1904-0041)
10 CFR 465.8 Approval of annual State applications and State plans.
(a) After receipt of an application, the Operations Office Manager
may request the State to submit within a reasonable period of time any
amendments necessary to make the application complete or amendments to
bring the application into compliance with the requirements of this
part. The Operations Office Manager shall attempt to resolve any
dispute over an application informally and to seek voluntary compliance.
If a State fails to submit timely appropriate amendments to complete
the application, the Operations Office Manager may reject the
application as incomplete in a written decision, including a statement
of reasons, which shall be subject to administrative review under
465.10 of this part.
(b) On or before 60 days from the date that a timely filed
application is complete, the Operations Office Manager shall decide
whether DOE shall make a financial assistance award. The Operations
Office Manager may --
(1) Approve the application in whole or in part to the extend that --
(i) The State plan meets the objectives of the Act;
(ii) The annual State application and the State plan meet the
requirements of 465.6 and 465.7, respectively; and
(iii) Implementation of the State plan by the State conforms to the
requirements of this part;
(2) Approve the application in whole or in part subject to special
conditions designed to ensure compliance with the requirements of this
part; or
(3) Disapprove the application if it does not conform to the
requirements of this part.
(55 FR 41327, Oct. 10, 1990)
10 CFR 465.9 Development and implementation of a State plan by the
Director.
(a) The Director shall develop a State plan which meets the
requirements of 465.7, if --
(1) A State does not submit an annual State application in accordance
with 465.6; or
(2) The Operations Office Manager finally disapproves an annual State
application according to 465.10.
(b) Prior to developing a State plan under this section, the Director
shall provide written notice and an opportunity for comment to the
Governor.
(c) A State plan developed by the Director shall be transmitted to
the Governor of the State and shall not be implemented for 90 days after
the date of transmittal. Notwithstanding any provisions of this section
to the contrary, no State plan developed by the Director according to
paragraph (a) of this section shall be implemented if the Governor,
within the 90-day period, notifies the Secretary in writing of his or
her objection to the implementation of the State plan.
(d) In implementing a State plan developed according to this section
to which the Governor has not objected during the 90-day period referred
to in paragraph (c) of this section, the Director shall make maximum use
of regional, State, or local organizations which deliver services which
are appropriate for purposes of this part. The Director shall
coordinate his or her activities in implementing the State plan with all
other regional, State, or local organizatons which delever services
which are related to, but not directly involved in, the implementation
of the State plan.
(e) A State plan developed by the Director for a State whose
financial assistance has been terminated according to 465.10, shall
provide for the continuation of all activities under the State plan
which meet the requirements of this part.
10 CFR 465.10 Administrative review.
(a) A State shall have 20 days from the date of receipt of a decision
under 465.8 to file a notice requesting administrative review. If the
State does not timely file such a notice, the decision under 465.8
shall become final for DOE.
(b) A notice requesting administrative review shall be filed with the
Operations Office Manager and shall be accompanied by a written
statement containing supporting arguments. If the Operations Office
Manager has disapproved the entire application, the State may request a
public hearing.
(c) A notice of 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 Operations Office
Manager shall forward to the Deputy Assistant Secretary, the notice
requesting administrative review, the decision under 465.8 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, the Deputy Assistant Secretary, within 15 days,
shall give actual notice to the State and Federal Register notice of the
date, place, time, and procedures which shall apply to the public
hearing. Any public hearing under this section shall be informal and
legislative in nature.
(f) On or before 45 days from receipt of documents under paragraph
(d) 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 Operations Office
Manager.
(g) On or before 15 days from the date of receipt of the
determination under paragraph (f) to the 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 whether the Deputy Assistant Secretary's
determination will be reviewed. If the Assistant Secretary grants
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 part, 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 contrary of 10 CFR
600.26, 600.28(b), 600.29, 600.121(c), and 600.443. To obtain a public
hearing, the grantee must request an evidentiary hearing, with prior
Federal Register notice, in the election letter submitted under rule 2
of 10 CFR 1024.4 and the request shall be granted notwithstanding any
provisions to the contrary of rule 2.
(55 FR 41328, Oct. 10, 1990)
10 CFR 465.11 Prohibited expenditures.
(a) No financial assistance provided to a State under this part 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;
(5) To conduct or purchase equipment to conduct research, development
or demonstration of conservation techniques and technologies not
commercially available; or
(6) To purchase or install equipment or materials for energy
conservation building retrofits or weatherization.
(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.
(c) Demonstrations of commercially available conservation techniques
and technologies are permitted, and are not subject to the prohibitions
of 465.11(a) (1) and (6), or to the limitation on equipment purchases
of 465.11(b).
(b) A State may use regular or revolving loan mechanisms to fund EES
services which are consistent with this part and which are included in
the State's approved EES plan. The State may use loan repayments and
any interest on the loan funds only for activities which are consistent
with this part and which are included in the State's approved EES plan.
10 CFR 465.12 Reports.
Each State receiving financial assistance under this part shall
submit to the Operations Office Manager a quarterly program report and a
quarterly financial statement. The program performance report shall
contain such information as the Director may prescribe in order to
monitor effectively the implementation of the State plan. The reports
shall be submitted to the Operations Office Manager within 30 days
following the end of each calendar year quarter.
(Approved by the Office of Management and Budget under control number
1901-0127)
10 CFR 465.13Administration of financial assistance.
Grants provided under this part shall comply with applicable law
including, but without limitation, the requirements of --
(a) Office of Management and Budget Circular A- 97, entitled ''Rules
and Regulations Permitting Federal Agencies to Provide Specialized or
Technical Services to State and Local Units of Government under Title
III of the Intergovernmental Coordination Act of 1968;''
(b) DOE Financial Assistance Rules (10 CFR Part 600); and
(c) Other procedures which DOE may from time to time prescribe for
the administration of financial assistance under this part.
10 CFR 465.13 PART 470 -- APPROPRIATE TECHNOLOGY SMALL GRANTS PROGRAM
Sec.
470.1 Purpose and scope.
470.2 Definitions.
470.10 Establishment of program.
470.11 Eligibility requirements.
470.12 Management.
470.13 Program solicitation.
470.14 Evaluation and selection.
470.15 Allocation of funds.
470.16 Cost sharing and funds from other sources.
470.17 General requirements.
470.18 Debriefing.
470.20 Dissemination of Information.
Authority: Energy Research and Development Administration
Appropriation Authorization of 1977, Pub. L. 95-39; Energy
Reorganization Act of 1974, Pub. L. 93-438; Department of Energy
Organization Act, Pub. L. 95-91.
Source: 45 FR 8928, Feb. 8, 1980, unless otherwise noted.
Editorial Note: The recordkeeping requirements contained in this
part have been approved by the Office of Management and Budget under
control number 1904-0036.
10 CFR 470.1Purpose and scope.
This part contains guidelines for the implementation of the
appropriate technology small grants program required to be prescribed by
section 112 of the Act.
10 CFR 470.2Definitions.
As used in this part --
''Act'' means the Energy Research and Development Administration
Appropriation Authorization of 1977, Pub. L. 95-39, 91 Stat. 180, 42
U.S.C. 5907a.
''Affiliate'' means a concern which, either directly or indirectly,
controls or has the power to control another concern, is controlled by
or is within the power to control of another concern or, together with
another concern, is controlled by or is within the power to control of a
third party, taking into consideration all appropriate factors,
including common ownership, common management and contractual
relationships.
''Concern'' means any business entity organized for profit (even if
its ownership is in the hands of a nonprofit entity) with its principal
place of business located in the United States. ''Concern'' includes,
but is not limited to, an individual, partnership, corporation, joint
venture, association or cooperative. For the purpose of making
affiliation findings, any business entity, whether organized for profit
or not, and any foreign business entity (i.e., any entity located
outside the United States), shall be included.
''DOE'' means the Department of Energy.
''DOE-AR'' means the Department of Energy Assistance Regulations (10
CFR Part 600).
''DOE-PR'' means the Department of Energy Procurement Regulations (41
CFR Part 9).
''Indian tribe'' means any tribe band, nation, or other organized
group or community of Indians (including any Alaska native village or
regional or village corporation as defined in or established pursuant to
the Alaska Native Claims Settlement Act, Pub. L. 92-203, 85 Stat. 688,
which (1) is recognized as eligible for the special programs and
services provided by the United States to Indians because of their
status as Indians; or (2) is located on, or in proximity to, a Federal
or State reservation or rancheria, acting through its tribal
organization.
''Local agency'' means an agency or instrumentality of a local
government.
''Local government'' means a local unit of government including
specifically a county, municipality, city, town, township, local public
authority, special district, intrastate district, council of
governments, sponsor group representative organization, and other
regional or intrastate government entity.
''Local nonprofit organization or institution'' means any corporation
trust, foundation, trade association, or other institution (1) which is
entitled to exemption under section 501(c)(3) of the Internal Revenue
Code or (2) which is not organized for profit and no part of the net
earnings of which insure to the benefit of any private shareholder or
individual.
''Program'' means the appropriate technology small grants program.
''Small business'' means a concern, including its affiliates, which
is organized for profit, is independently owned and operated, is not
dominant in the field of operation in which it is submitting a proposal
to DOE, and has 100 employees or less.
''Standard Federal regions'' means the 10 standard Federal regions
established by Office of Management and Budget Circular A-105, entitled
''Standard Federal Regions.''
''State'' means any of the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, and any territory
or possession of the United States.
''State agency'' means an agency or instrumentality of a State
government.
''State government'' means the government of a State, or an
interstate organization.
''Support'' means financial support or award under the program by
grants, cooperative agreements or contracts.
''Tribal organization'' means the recognized governing body of an
Indian tribe, or any legally established organization of Native
Americans which is controlled, sanctioned, or chartered by such
governing body.
10 CFR 470.10 Establishment of program.
There is established, under direction of the Assistant Secretary for
Conservation and Solar Energy of DOE, an appropriate technology small
grants program for the purpose of encouraging development and
demonstration of, and the dissemination of information with respect to,
energy-related systems and supporting technologies appropriate to --
(a) The needs of local communities and the enhancement of community
self-reliance through the use of available resources;
(b) The use of renewable resources and the conservation of
non-renewable resources;
(c) The use of existing technologies applied to novel situations and
uses;
(d) Applications which are energy conserving, environmentally sound,
small scale and low cost; and
(e) Applications which demonstrate simplicity of installation,
operation and maintenance.
10 CFR 470.11Eligibility requirements.
(a) Support under this part may be made to individuals, local
non-profit organizations and institutions. State and local agencies,
Indian tribes and small businesses.
(b) The aggregate amount of support made available to any participant
in the program, including affiliates, shall not exceed $50,000 during
any 2-year period. This limitation applies only to support for projects
and not to funds received by participants from DOE for other purposes,
such as performance of services.
(c) Projects which shall be considered for support are those which
carry out the purposes of the program as expressed in 470.10 and which
are within the following categories --
(1) Idea development, i.e., the development of an idea or concept or
an investigative finding in areas ranging from development of new
concepts of energy sources to the utilization of old procedures or
systems for a new application;
(2) Device development, i.e., the systematic use and practical
application of investigative findings and theories of a scientific or
technical nature toward the production of, or improvements in, useful
products to meet specific performance requirements but exclusive of
manufacturing and production engineering. The dominant characteristic
is that the effort be pointed toward specific energy problem areas to
develop and evaluate the feasibility and practicability of proposed
solutions and determine their parameters. Device development includes
studies, investigations, initial hardware development and ultimately
development of hardware, systems, or other means for experimental or
operational test; or
(3) Demonstration, i.e., the testing of a system or technique under
operation conditions to show that commercial application is technically,
economically and environmentally feasible.
(d) Support for each category in paragraph (c) of this section shall
not, for a single participant in the program, including affiliates,
exceed the following limits for any project --
(1) For idea development, $10,000;
(2) For device development, $50,000; and
(3) For demonstration, $50,000.
(4) A participant may receive under a subsequent program solicitation
--
(i) Additional support for a funded project or;
(ii) Initial support for a new project, subject to the support limits
set forth in paragraphs (b) and (d) of this section.
10 CFR 470.12Management.
(a) The program shall be managed by a National Program Director
within the Office of the Assistant Secretary for Conservation and Solar
Energy of DOE.
(b) The program shall be implemented regionally, based on the 10
standard Federal regions or combinations thereof, to insure substantial
consideration of the needs, resources, and special circumstances of
local communities. Regions may be combined provided the requirements of
Office of Management and Budget Circular A-106 entitled ''Standard
Federal Regulations'' are met. Regional Program Managers shall design
and manage the regional programs as directed by the National Program
Director and shall consult, as appropriate, with State and local
officials, the appropriate technology community and other interested
parties.
10 CFR 470.13Program solicitation.
(a) The Regional Program Managers shall be responsible for the
preparation of program solicitations which solicit proposals for support
under the program pursuant to simplified application procedures.
Projects may be supported under the program only if they have
successfully completed under a program solicitation.
(b) Each program solicitation shall include --
(1) A description of the program;
(2) The eligibility requirements;
(3) A time schedule for submission of, and action on, proposals;
(4) A simple application form for submitting a proposal for support
under the program, together with instructions for completing the
application form;
(5) Evaluation criteria, along with a narrative description of their
relative importance;
(6) An explanation of the evaluation and selection procedures,
including a notice to proposers that if the proposer expressly indicates
that only Government evaluation is authorized, DOE may be unable to give
full consideration to the proposal.
(7) Other applicable information, terms and conditions, including the
desired budget format;
(8) Place for, and manner of, submission;
(9) A unique number for identification purposes;
(10) A statement notifying potential proposers that an announcement
does not commit DOE to pay any proposal perparation costs and that DOE
reserves the right to select for support any, all, or none of the
proposals received in response to a solicitation;
(11) A late proposal provision;
(12) A statement notifying proposers how to identify information in
the proposal which the proposer does not want disclosed for purposes
other than the evaluation of the proposal.
(13) A statement notifying proposers that all information contained
in the proposal will be handled in accordance with the policies and
procedures set forth in DOE-AR and DOE-PR, as applicable, and disclosed,
if appropriate, in accordance with 10 CFR Part 1004 entitled ''Freedom
of Information.''
(14) A statement notifying proposers of their right to request a
debriefing pursuant to the procedures set forth in 470.18; and
(15) A statement notifying proposers of their right to request a
waiver of DOE's title to inventions made under the program.
(c) Each program solicitation shall be synopsized in the Commerce
Business Daily prior to or concurrent with release. The program
solicitation also shall be announced to appropriate newspapers, trade
and technical publications, and State and local governments, and shall
be circulated directly to interested individuals, entities, and
associations thereof, to the maximum extent feasible.
10 CFR 470.14Evaluation and selection.
(a) Prior to making a comprehensive evaluation of a proposal, the
receiving office shall determine that it contains sufficient technical,
cost, and other information to enable comprehensive evaluation and that
it has been properly signed. If the proposal does not meet these
requirements, a prompt reply shall be sent to the proposer, indicating
the reason(s) for the proposal not being selected for support under the
program solicitation. A proposer may correct any minor informality or
irregularity or apparent clerical mistake prior to the entering into of
grants, contracts, or cooperative agreements. A minor informality or
irregularity is one which is merely a matter of form and not of
substance or pertains to some immaterial or inconsequential defect or
variation from the exact requirements of the program announcement.
(b)(1) The Regional Program Manager shall select a number of
technical evaluation reviewers representing several disciplines to
ensure adequate technical review of proposals.
(2) After receiving nominations from each State or combinations of
States within the Region, the Program Manager shall select a number of
State reviewers for each State or combinations of States, respectively.
The nominations and selections of State reviewers shall take into
consideration representation by persons from a variety of backgrounds,
in order that the reviewers are able to evaluate proposals of potential
merit in various fields and from various types of proposers.
(3) The Regional Program Manager or designee shall provide proposals
to the technical evaluation and State reviewers and shall provide their
findings and comments to the selection panel established pursuant to
paragraph (3) of this section.
(4) In carrying out the responsibilities set forth in paragraphs (b)
(1), (2) and (3) of this section, the Regional Program Manager (i) shall
determine the number of technical evaluation and State reviewers who
shall review each proposal; (ii) shall determine the sequence of the
technical and State review; (iii) may designate a person to serve as
both a technical and State reviewer, if appropriate to the needs of the
program in the Region. A decription of the Program Manager's
determinations under this paragraph shall be included in the Program
Solicitation pursuant to 470.13(b)(6).
(c) Each technical evaluation reviewer shall evaluate those proposals
which he or she receives from the Regional Program Manager or designee
and shall provide his or her findings to the Regional Program Manager or
designee. In addition to the general criteria underlying the
establishment of the program as set forth in 470.10, the major criteria
to be considered by each technical evaluation reviewer shall include --
(1) Whether the proposal is technically feasible, including a
determination as to whether the proposed energy savings or energy
production can be technically achieved;
(2) Whether the results being proposed are capable of being measured;
(3) Whether the proposal has any potential environmental, health and
safety impacts; and
(4) From a technical standpoint, whether the proposal can be carried
out within the funds being requested.
(d) Each State reviewer shall evaluate those proposals which he or
she receives from the Program Manager or designee and shall provide his
or her findings and comments to the Program Manager or designee. In
addition to the general criteria underlying establishment of the program
as set forth in 470.10, the criteria to be considered by each State
reviewer shall include --
(1) The potential impact of the proposal on the energy needs and
requirements of the community or region;
(2) The energy resource involved and its importance or availability
to the community or region;
(3) The expected energy savings or production that will result from
the proposal and the significance of those savings or production to the
energy requirements of the community or region;
(4) The institutional barriers that may substantially affect the
proposal and the potential of the proposal to deal with those barriers;
(5) The likelihood of commercialization or utilization of the
technology, process, or items within the proposal and extent of such
commercialization/utilization;
(6) The innovative nature of the proposal;
(7) Any potential environmental, health and safety impacts of the
proposal upon the community or region;
(8) The extent to which work beyond the funded project period might
be required;
(9) The extent to which local resources, material, and manpower will
be utilized; and
(10) The adequacy of the business aspects of the proposal, including
the reasonableness of the proposer's budget for carrying out the
proposal.
(e) A selection panel composed of DOE personnel appointed by the
Regional Program Manager shall, taking into account the findings and
comments of the technical evaluation and State reviewers, evaluate and
rank the proposals in accordance with the criteria stated in the program
solicitation.
(f) For each Region, a DOE selection official shall select proposals
for support from the ranking established by the selection panel, taking
into account the following program policy factors in order to determine
the mix of proposed projects which will best further specific program
goals --
(1) Regional distribution, including geography, population, and
climate;
(2) Project type distribution, including a diversity of methods,
approaches, and technologies;
(3) Diversity of participants; and
(4) The best overall use of the funds available.
10 CFR 470.15Allocation of funds.
(a) DOE shall annually allocate fiscal year funds available for
support among the 10 standard Federal Regions, according to the
following formula;
(1) Two-thirds to be allocated according to population; and
(2) One-third to be allocated according to the number of proposals
received, per hundred thousand of population of the Region, which meet
the requirements set forth in 470.14(a).
(b) The minimum annual level of support for projects for each State
within a Region shall be 10 percent of the fiscal year funds allocated
to the Region, divided by the number of States in the Region.
(c) For the purposes of this section, population shall be determined
by the most current complete national series, as published by the United
States Bureau of the Census in Current Population Reports, P-25, P-26,
or related series, except where data from the decennial census conducted
by the Bureau of the Census is more current.
10 CFR 470.16Cost sharing and funds from other sources.
Proposers are encouraged to offer to share in the costs of their
proposed projects or to arrange that other entities provide cost sharing
on their behalf. Regional Program Managers, with the consent of the
proposer, may work with States, local governments or other entities to
obtain supplemental funding.
10 CFR 470.17General requirements.
(a) Except where this part provides otherwise, the submission,
evaluation and selection for support of proposals under the program and
the entering into and administration of grants, cooperative agreements,
and contracts under the program, shall be governed by the provisions of
DOE-AR and DOE-PR are applicable, such other procedures applicable to
grants, cooperative agreements, and contracts under the program as DOE
may from time to time prescribe, and any Federal requirements applicable
to grants, cooperative agreements, and contracts under the program.
(b) Each grant, cooperative agreement or contract under this part
shall require that a recipient of support under the program shall submit
a full written report of activities supported in whole or in part by
Federal funds made available under the program and shall contain any
additional report provisions and other provisions dealing with records,
allowable expenses, accounting practices, publication and publicity,
copyrights, patents, discrimination, conflict of interest, insurance,
safety, changes, resolution of disputes and other standard and/or
relevant support agreements requirements required by, or appropriate to,
the needs of the program.
10 CFR 470.18Debriefing.
Upon written request, unsuccessful proposers will be accorded
debriefings. Such debriefings must be requested within 30 working days
of notification of elimination from consideration. Debriefings will be
provided at the earliest feasible time as determined by the Regional
Program Manager.
10 CFR 470.20Dissemination of Information.
DOE shall disseminate to the public, in an appropriate manner,
information of the nature, usage and availability of the energy-related
systems and supporting technologies developed or demonstrated under the
program. In addition, DOE shall maintain and make available to
recipients of support under the program current information on public
and private sources of possible assistance for the further development
and commercialization of their projects.
10 CFR 470.20 PART 473 -- AUTOMOTIVE PROPULSION RESEARCH AND
DEVELOPMENT
Sec.
473.1 Purpose and scope.
473.2 Definitions.
473.10 Required information from applicant.
473.11 Submission of applicant's information.
473.20 Public notice and opportunity to object.
473.21 Supplemental information and rebuttal.
473.22 Initial review by manager.
473.23 Interagency review panel.
473.24 Final action and certification by manager.
473.25 Reviewability of certification.
473.30 Standards and criteria.
Authority: Federal Energy Administration Act of 1978 -- Civilian
Applications, Pub. L. 95-238; Department of Energy Organization Act,
Pub. L. 95-91.
Source: 43 FR 55230, Nov. 24, 1978, unless otherwise noted.
10 CFR 470.20 Review and Certification of Grants, Cooperative Agreements, Contracts, and Projects
10 CFR 473.1Purpose and scope.
These regulations implement section 304(f) of the Federal Energy
Administration Act of 1978 -- Civilian Applications, and apply to each
new contract, grant, cooperative agreement, Department of Energy
project, or other agency project funded or to be funded under the
authority of that Act. 15 U.S.C. 2703(f) (1970). These regulations do
not apply to subcontractors, or to contracts, grants, cooperative
agreements, Department of Energy projects, or other agency projects
entered into, made, or formally approved and initiated prior to February
25, 1978, or with respect to any renewal or extension thereof. Insofar
as grants, cooperative agreements, and contracts are concerned, these
regulations provide procedures and requirements that are in addition to
those generally applicable under the assistance and procurement
regulations of the Federal agency funding research and development under
the Act.
10 CFR 473.2Definitions.
For purpose of these regulations --
''Act'' means the Federal Energy Administration Act of 1978 --
Civilian Applications. Pub. L. 95-238, 92 Stat. 47.
''Advanced automobile propulsion system'' means an energy conversion
system, including engine and drivetrain, which utilizes advanced
technology and is suitable for use in an advanced automobile.
''Agency project'' means research and development under the Act by
employees of a Federal agency furnishing assistance at the request of
the DOE.
''Annual funding period'' means the Federal fiscal year during which
a grant, cooperative agreement, or contract is funded by an
appropriation under the Act.
''Applicant'' means any private laboratory, university, nonprofit
organization, industrial organization, private agency, institution,
organization, corporation, partnership, individual, or public agency
other than a Federal agency.
''DOE project'' means research and development under the Act by
employees of the DOE.
''Federal agency'' means an executive agency as defined by 5 U.S.C.
105 (1970).
''Manager'' means the Federal program official who requests grant
agreements, cooperative agreements, or contracts to be negotiated or who
authorizes a DOE or agency project to begin.
''Notice of availability'' means a notice published in the Commerce
Business Daily advertising the availability of a formal solicitation
document to be issued for the purpose of inviting and setting guidelines
for submission of proposals for research and development grants,
cooperative agreements, or contracts.
''Research and development'' means activities constituting a project
to create an advanced automobile propulsion system and does not mean
activities involving technology transfer to mass production, evaluative
testing, preliminary planning for a DOE or an agency project, or program
administration and managment.
''Solicitation'' means a formal, written request for proposals to
perform research and development under a grant, cooperative agreement,
or contract, typically including evaluation criteria and a statement of
the work to be done.
10 CFR 473.10Required information from applicant.
In accordance with applicable procedures of 473.11 any applicant for
a grant, cooperative agreement, or contract under the Act to support
research and development activities of an advanced automobile propulsion
system shall --
(a) State whether the activities will initiate or continue research
and development of an advanced automobile propulsion system;
(b) State, insofar as the applicant has information, whether and to
what extent the activities to be supported are technically the same as
activities conducted previously or to be conducted during the annual
funding period by any person for research and development of a
substantially similar advanced automobile propulsion system;
(c) Justify research and development activities on an advanced
automobile propulsion system abandoned by any person because of a lack
of mass production potential by presenting information showing a
significant intervening technological advance, promising conceptual
innovation, or other special consideration;
(d) Provide --
(1) An assurance that the amount of funds to be expended for research
and development of advanced automobile propulsion systems during the
initial annual funding period will exceed the amount of funds expended,
if any, during the previous year for the same purpose by at least the
amount of the grant, cooperative agreement, or contract being sought;
and
(2) An assurance that the level of research and development effort on
advanced automobile propulsion systems in the initial annual funding
period will not be decreased in future annual funding periods.
(e) Provide to the extent possible --
(1) An assurance that the time period for completing research and
development of the advanced automobile propulsion is likely to be
shorter as a result of a grant, cooperative agreement, or contract; and
(2) The estimated delay, if any, which is likely to occur if the
application for a grant, cooperative agreement, or contract is denied.
10 CFR 473.11Submission of applicant's information.
(a) An applicant submitting an unsolicited proposal to conduct
research and development to be funded by a grant, cooperative agreement,
or contract under the Act shall include the information required under
473.10 in the unsolicited proposal document filed under the assistance
or procurement regulations of the DOE or other Federal agency which
funds the proposed research and development under the Act.
(b) In responding to a solicitation for a proposal to conduct
research and development funded by a grant, cooperative agreement, or
contract under the Act, the applicant shall include the information
required under 473.10 in the proposal.
(c) Information submitted under 473.10 of these regulations shall be
certified in writing as complete and accurate by the applicant, and if
the applicant is not an individual, the chief executive officer of the
applicant or his authorized designee shall sign the certification.
10 CFR 473.20Public notice and opportunity to object.
(a) In compliance with paragraph (b) of this section and unless
provisions of paragraph (c) of this section apply, the manager shall
cause to be published in the Commerce Business Daily a statement
describing the unsolicited proposal, solicitation, DOE project, or
agency project, as appropriate, inviting any interested person to submit
a written objection, with supporting information at an appropriate
address on or before 30 days from the date of publication, if the person
believes that the research and development to be performed does not
comply with standards and criteria of 473.30.
(b) Except as paragraph (c) of this section applies, the manager
shall comply with the requirements of paragraph (a) of this section --
(1) Upon receipt of an unsolicited proposal from an applicant;
(2) In any notice of availability of a solicitation;
(3) Prior to beginning a DOE project; or
(4) Prior to beginning an agency project.
(c) Without publishing a notice under paragraph (a) of this section,
the manager may reject an unsolicited proposal that does not comply with
these regulations or any other generally applicable requirements.
10 CFR 473.21Supplemental information and rebuttal.
The manager may request additional information from an applicant or
any interested person who files an objection under 473.20.
10 CFR 473.22Initial review by manager.
(a) Upon expiration of the time for filing information under these
regulations, the manager shall --
(1) Review the proposed research and development to be performed
under grant, under cooperative agreement, under contract, as a DOE
project, or as an agency project and any other pertinent information
received under these regulations or otherwise available; and
(2) Initially determine whether the research and development reviewed
under paragraph (a)(1) of this section complies with the standards and
criteria of 473.30.
(b) A manager who makes a negative determination under paragraph
(a)(2) of this section shall inform the applicant and any interested
person who objected of the decision in writing with a brief statement of
supporting reasons.
(c) A manager who initially determines that research and development
reviewed under this section complies with the standards and criteria of
473.30 shall cause an interagency review panel to be convened under
473.23.
10 CFR 473.23Interagency review panel.
(a) The interagency review panel shall consist of --
(1) A head designated by the Federal agency that employs the manager;
(2) A representative of the DOE if the manager is not an employee of
the DOE; and
(3) A representative of any other Federal agency deemed appropriate
by the Federal agency that employs the manager.
(b) The interagency review panel shall --
(1) Review the research and development to be performed and consider
the information presented by the applicant, in the case of a grant,
cooperative agreement, or contract, and by any interested person who
filed a statement of objection;
(2) Make a recommendation with a supporting statement of findings to
the manager as to whether the research and development to be performed
complies with the standards and criteria of 473.30; and
(3) Operate by majority vote with the head of the panel casting the
decisive vote in the event of a tie.
10 CFR 473.24Final action and certification by manager.
(a) Upon consideration of the recommendation of the interagency
review panel and other pertinent information, the manager --
(1) Shall determine whether the research and development to be
performed complies with the standards and criteria of 473.30;
(2) Shall obtain the concurrence of the DOE if the manager is not an
employee of the DOE;
(3) Shall, in the event of a negative determination under this
section, advise the applicant, in the case of a grant, cooperative
agreement, or contract, and any interested person who filed a statement
of objection; and
(4) Shall, in the event of an affirmative determination under this
section, prepare a certification --
(i) Explaining the determination;
(ii) Discussing any allegedly related or comparable industrial
research and development considered and deemed to be an inadequate basis
for not certifying the grant or contract;
(iii) Discussing issues regarding cost sharing and patent rights
related to the standards and criteria of 473.30 of these regulations;
and
(iv) Discussing any other relevant issue.
(b) After complying with paragraph (a) of this section, the manager
shall sign the certification and distribute copies to the applicant, if
any, and any interested person who filed a statement of objections --
(1) Immediately in the case of a DOE or agency project; and
(2) After the agreement has been negotiated in the case of a grant,
cooperative agreement, or contract.
10 CFR 473.25Reviewability of certification.
Any certification issued under these rules is --
(a) Subject to disclosure under 5 U.S.C. 552 (1970) and section 17 of
the Federal Nonnuclear Energy Research and Development Act of 1974, as
amended, 42 U.S.C. 5918 (1970);
(b) Subject neither to judicial review nor to the provisions of 5
U.S.C. 551-559 (1970), except as provided under paragraph (a) of this
section; and
(c) Available to the Committee on Science and Technology of the House
of Representatives and the Committee on Energy and Natural Resources of
the Senate.
10 CFR 473.30Standards and criteria.
Research and development to be performed under a grant, under a
cooperative agreement, under a contract, as a DOE project, or as an
agency project under the Act may be certified under these regulations
only if the research and development to be conducted --
(a) Supplements the automotive propulsion system research and
development efforts of industry or any other private researcher;
(b) Is not duplicative of efforts previously abandoned by private
researchers unless there has been an intervening technological advance,
promising conceptual innovation, or justified by other special
consideration;
(c) Would not be performed during the annual funding period but for
the availability of the Federal funding being sought;
(d) Is likely to produce an advanced automobile propulsion system
suitable for steps toward technology transfer to mass production in a
shorter time period than would otherwise occur;
(e) Is not technologically the same as efforts by any person
conducted previously or to be conducted during the annual funding period
regarding a substantially similar advanced automobile propulsion system;
and
(f) Is not likely to result in a decrease in the level of private
resources expended on advanced automotive research and development by
substituting Federal funds without justification.
10 CFR 473.30 PART 474 -- ELECTRIC AND HYBRID VEHICLE RESEARCH,
DEVELOPMENT AND DEMONSTRATION PROGRAM; EQUIVALENT PETROLEUM-BASED FUEL
ECONOMY CALCULATION
Sec.
474.1 Purpose and scope.
474.2 Definitions.
474.3 Test procedures.
474.4 Equivalent petroleum-based fuel economy calculation.
Authority: Sec. 503(a)(3), Motor Vehicle Information and Cost
Savings Act, Pub. L. 94-163 (15 U.S.C. 2003(a)(3)), as added by sec.
18, Chrysler Corporation Loan Guarantee Act of 1979, Pub. L. 96-185;
Department of Energy Organization Act, Pub. L. 95-91.
Source: 46 FR 22753, Apr. 21, 1981, unless otherwise noted.
10 CFR 474.1Purpose and scope.
This part contains procedures for calculating the equivalent
petroleum-based fuel economy value of electric vehicles, as required to
be prescribed by the Secretary of Energy under section 503(a)(3) of the
Motor Vehicle Information and Cost Savings Act (15 U.S.C. 2003(a)(3)),
as added by section 18 of the Chrysler Corporation Loan Guarantee Act of
1979. The equivalent petroleum-based fuel economy value is intended to
be used in calculating corporate average fuel economy pursuant to
regulations promulgated by the Environmental Protection Agency at 40 CFR
Part 600 -- Fuel Economy of Motor Vehicles.
10 CFR 474.2Definitions.
For purposes of this part, the term --
''Electric vehicle'' means a vehicle that is powered by an electric
motor drawing current from rechargeable storage batteries or other
portable energy storage devices. Recharge energy shall be drawn
primarily from a source off the vehicle, such as residential electric
service.
''Electrical efficiency value'' means the weighted average of the
stop-and-go and steady-speed electrical efficiency values, as determined
in accordance with 474.4(b).
''Energy equivalent fuel economy value'' means the electrical
efficiency value converted into units of miles per gallon, as determined
in accordance with 474.4(c).
''Equivalent petroleum-based fuel economy value'' means a number,
determined in accordance with 474.4, which represents the average
number of miles travelled by an electric vehicle per gallon of gasoline.
''Model type'' means the term defined by the Environmental Protection
Agency in its regulations at 40 CFR 600.002-81(19).
''Model year'' means the term defined by the Environmental Protection
Agency in its regulations at 40 CFR 600.002-81(6).
''Petroleum equivalency factor'' means a number which represents the
parameters listed in section 503(a)(3)(ii) through (iv) of the Motor
Vehicle Information and Cost Savings Act (15 U.S.C. 2003(a)(3)) for
purposes of calculating equivalent petroleum-based fuel economy in
accordance with 474.4.
''Petroleum-powered accessory'' means a heater/defroster system or an
air conditioner system which uses fuel, as defined in section 501(5) of
the Motor Vehicle Information and Cost Savings Act (15 U.S.C. 2001) as
its primary energy source.
''Production volume'' means the term defined by the Environmental
Protection Agency in its regulations at 40 CFR 600.002-81(32).
''Steady-speed electrical efficiency value'' means the average number
of kilowatt-hours of electrical energy required for an electric vehicle
to travel 1 mile, as determined in accordance with 474.3(c).
''Stop-and-go electrical efficiency value'' means the average number
of kilowatt-hours of electrical energy required for an electric vehicle
to travel 1 mile, as determined in accordance with 474.3(b).
(46 FR 22753, Apr. 21, 1981, as amended at 48 FR 28432, June 22,
1983)
10 CFR 474.3Test procedures.
(a) The conditions and equipment in the Electric Vehicle Test
Procedure -- SAE J227a of the Society of Automotive Engineers shall be
used for conducting the test procedures set forth in this section.
(b) The test procedures prescribed in SAE procedure J227a, Vehicle
Energy Economy, using Vehicle Test Cycle C for the driving cycle, shall
be used for generation of the stop-and-go electrical efficiency value.
(c) The test procedures prescribed in SAE procedure J227a, Vehicle
Energy Economy, using a driving cycle consisting of a maximum cruise
speed of 54 mph, as prescribed in the SAE procedure for Range at Steady
Speed, shall be used for generation of the steady-speed electrical
value. For an electric vehicle model type that is incapable of
maintaining a maximum cruise speed of 54 mph, this test procedure shall
be conducted at the maximum cruise speed as defined in section 2.8 of
the SAE procedure J227a.
10 CFR 474.4 Equivalent petroleum-based fuel economy calculation.
(a) Calculate the equivalent petroleum-based fuel economy of an
electric vehicle as follows:
(1) Determine the stop-and-go electrical efficiency value, according
to 474.3(b).
(2) Determine the steady-speed electrical efficiency value, according
to 474.3(c).
(b) Calculate the electrical efficiency value by:
(1) Multiplying the stop-and-go electrical efficiency value by 0.91;
(2) Multiplying the steady-speed electrical efficiency value by 0.09;
and
(3) Adding the resulting two figures, rounding to the nearest 0.01
kWh/mile.
(c) Calculate the energy equivalent fuel economy value by dividing
the electrical efficiency value into 36.66.
(d) For purposes of paragraph (e) of this section, use the
appropriate Petroleum Equivalency Factor as follows:
(1) If no more than 33 percent of the production volume of the
electric vehicle model type is to be equipped with any petroleum-powered
accessories, use the first number listed under paragraph (e) of this
section for the applicable model year.
(2) If more than 33 percent of the production volume of the electric
vehicle model type is to be equipped with only one petroleum-powered
accessory, use the second number under paragraph (e) of this section of
the applicable model year.
(3) If more than 33 percent of the production volume of the electric
vehicle model type is to be equipped with two petroleum-powered
accessories, use the third number under 474.4(e) for the applicable
model year.
(e) Calculate the equivalent petroleum-based fuel economy value in
miles per gallon by multiplying the energy equivalent fuel economy value
by the appropriate petroleum equivalency factor for the model year in
which the electric vehicle is manufactured.
(1) For model year 1981, the petroleum equivalency factor is:
(i) 1.9,
(ii) 1.7, or
(iii) 1.6;
(2) For model year 1982, the petroleum equivalency factor is:
(i) 2.0,
(ii) 1.8, or
(iii) 1.6;
(3) For model year 1983, the petroleum equivalency factor is:
(i) 2.0,
(ii) 1.8, or
(iii) 1.6;
(4) For model year 1984, the petroleum equivalency factor is:
(i) 2.1,
(ii) 1.9, or
(iii) 1.7;
(5) For model year 1985, the petroleum equivalency factor is:
(i) 2.3,
(ii) 2.0, or
(iii) 1.8;
(6) For model year 1986, the petroleum equivalency factor is:
(i) 2.2,
(ii) 2.0, or
(iii) 1.8; and
(7) For model year 1987, the petroleum equivalency factor is:
(i) 2.2,
(ii) 2.0, or
(iii) 1.8.
10 CFR 474.4 PART 475 -- ELECTRIC AND HYBRID VEHICLE RESEARCH, DEVELOPMENT, AND DEMONSTRATION PROJECT
10 CFR 474.4 Subpart A -- General Provisions
Sec.
475.1 Purpose and scope
475.2 Definitions.
475.3 Test conditions and procedures.
475.4 Units.
10 CFR 474.4 Subpart B -- Minimum Levels of Performance
475.10 Minimum levels of performance for personal-use vehicles.
475.11 Minimum levels of performance for commercial vehicles.
Authority: Electric and Hybrid Vehicle Research, Development, and
Demonstration Act of 1976, Pub. L. 94-413, as amended by Department of
Energy Act of 1978 -- Civilian Applications, Pub. L. 95-238; Energy
Reorganization Act of 1974, Pub. L. 93-438; Department of Energy
Organization Act,
Pub. L. 95-91.
Source: 45 FR 9544, Feb. 12, 1980, unless otherwise noted.
10 CFR 474.4 Subpart A -- General Provisions
10 CFR 475.1 Purpose and scope.
This part contains performance standards for electric and hybrid
vehicles required to be prescribed by the Department of Energy pursuant
to section 7(b)(1) of the Act.
10 CFR 475.2 Definitions.
As used in this part:
''Act'' means the Electric and Hybrid Vehicle Research, Development,
and Demonstration Act of 1976 (Pub. L. 94-413, 90 Stat. 1263 et seq.),
as amended by Department of Energy Act of 1978 -- Civilian Applications
(Pub. L. 95-238; 92 Stat. 47, 91-94).
''Commercial vehicle'' means a vehicle other than a personal-use
vehicle.
''Electric vehicle'' means a vehicle which is powered by an electric
motor drawing current from rechargeable storage batteries, fuel cells,
or other portable sources of electrical current, and which may include a
nonelectrical source of power designed to charge batteries and
components thereof.
''Hybrid vehicle'' means a vehicle propelled by a combination of an
electric motor and an internal combustion engine or other power source
and components thereof.
''Personal-use vehicle'' means a vehicle designed to carry ten
persons or less, except a multipurpose passenger vehicle, motorcycle,
truck, or trailer, as those terms are defined in 49 CFR 571.3.
''Vehicle'' means an electric or hybid vehicle.
''Vital accessories'' means headlights, taillights, windshield
wipers, windshield defroster and defroster blowers. The heater blowers
also shall be considered as vital accessories if the vehicle is equipped
with a heater.
10 CFR 475.3 Test conditions and procedures.
The conditions and procedures in Electric Vehicle Test Procedure --
SAE J227a, as revised February 1976, of the Society of Automotive
Engineers, shall be used to determine the levels of performance of
vehicles for those categories for which minimum levels of performance
are prescribed in Subpart B.
10 CFR 475.4 Units.
The units and unit symbols and abbreviations used in this part are
those of the International System of Units (Systeme International) or SI
as established by the General Conference of Weights and Measures in 1960
and interpreted and modified for the United States pursuant to the U.S.
Department of Commerce Notice on the Interpretation and Modification of
the International System of Units for the United States (41 FR 54018,
Dec. 10, 1976).
10 CFR 475.4 Subpart B -- Minimum Levels of Performance
10 CFR 475.10 Minimum levels of performance for personal-use vehicles.
The following minimum levels of performance are required with respect
to any personal-use vehicle purchased or leased in fulfillment of
contracts entered into following the effective date of these
regulations, pursuant to section 7(c) of the Act.
(a) Acceleration. The time required to accelerate from rest to 50
km/h shall not exceed 13.5s.
(b) Gradeability at speed. The grade which can be traversed up at 25
km/h shall be at least 10 percent.
(c) Gradeability limit. The grade on which the vehicle can start and
climb for 20s either backward or forward shall be no less than 20
percent.
(d) Forward speed capability. The speed which can be maintained for
5 minutes shall be 80 km/h.
(e) Range. The distance which the vehicle can be operated with vital
accessories on or equivalent, shall be:
(1) For an electric vehicle, at least 55 km on the SAE J227 a/C
cycle, and
(2) For a hybrid vehicle, at least 200 km on the SAE J227 a/C cycle.
(f) Battery recharge time. The vehicle shall be capable of
satisfying the range requirement of paragraph (e) of this section, after
being recharged for no more than 10 hours by use of an on-board charger.
At the start of this recharge the vehicle shall have 80 percent
discharged batteries as specified by the vehicle test conditions and
procedures of 475.3. The on-board charger shall be compatible with an
electric power outlet of 110V or 220V AC, as specified by the vehicle
manufacturer.
(g) Recharge control. The vehicle shall have an automatic recharge
control which will meet the requirements of energy, life, and safety as
such requirements are stated by these performance standards. This
paragraph applies when on-board chargers are used and also when
off-board chargers supplied by or specified by the vehicle manufacturer
for recharge of the vehicle are used.
(h) Energy consumption. (1) For an electric vehicle, the maximum
amount of nonelectrical energy consumed shall be that used for operation
of the accessories only.
(2) For a hybrid vehicle, nonelectrical energy consumed shall not
exceed 1.3 MJ/km and shall also not exceed 75 percent of total energy
consumed for propulsion and vital accessories, based on being fully
loaded on a driving schedule of 33 km on SAE J227 a/C cycle plus 33 km
at 75 km/h (higher heating value of gasoline taken as 32.7 MJ/L) and
with vital accessories on.
(i) Battery life. (1) The vehicle shall be capable of at least 75
percent of the range specified in 475.10(e) after 12 months or 15,000
km of normal use, whichever occurs first.
(2) The vehicle shall be capable of 100 percent of the acceleration
and gradeability specified in 475.10 (a), (b), and (c), for all test
conditions and procedures specified by 475.3, for 12 months or 15,000
km or normal use, whichever occurs first.
(3) The batteries shall, if necessary, be repaired or replaced by the
vehicle manufacturer at no cost to the user of the vehicle in order to
meet requirements of 475.10(i) (1) and (2).
(j) State-of-charge meter. The vehicle shall have a state-of-charge
meter for the propulsion battery system or other means of providing an
indication of remaining range.
(k) Odometer. The vehicle shall have an odometer.
(l) Passenger comfort heater. The vehicle shall have the capability
of having a passenger comfort heater installed at the option of the
purchaser.
(m) Documentation. Adequate user manuals, maintenance (service)
manual and parts lists shall be provided.
(n) Emissions. The vehicle shall comply with all applicable Federal
emissions regulations for motor vehicles.
(o) Safety, crashworthiness, damageability, crash avoidance and
hazards. (1) The vehicle shall comply with all applicable Federal motor
vehicle safety standards as set forth in 49 CFR Part 571, unless a
temporary exemption is obtained by the manufacturer from the Department
of Transportation.
(2) Until the Department of Transportation issues regulations which
cover the same subjects, the vehicle shall also have the following
performance characteristics:
(i) The electric propulsion circuit shall be electrically isolated
from other conductive portions of the vehicle sufficiently to prevent
personal hazards due to contacting any portion of the electric
propulsion circuit while in contact with other portions of the vehicle.
(ii) The vehicle shall be capable of complying with the performance
requirements of Federal motor vehicle safety standards 208 and 301 with
all battery materials remaining outside the passenger compartment.
(iii) Vehicles with battery vents shall have flame barrier provisions
to inhibit battery explosions.
(iv) Ventilation shall be adequate within the battery compartment to
maintain the concentration of hydrogen below 4 percent by volume during
vehicle operation (including charging and maintenance).
(v) The vehicle shall have a device which provides for the positive
disconnection of the battery and which is operable from the normal
operator position.
(vi) The vehicle shall be capable of being parked for up to 8 hours
in temperatures of ^25 C. to 50 C. and subsequently operated, by
moving forward under its own power, at any temperature within this
temperature range without damage to the vehicle or hazard to persons.
10 CFR 475.11Minimum levels of performance for commercial vehicles.
The following minimum levels of performance are required with respect
to any commercial vehicles purchased or leased in fulfillment of
contracts entered into following the effective date of these
regulations, pursuant to section 7(c) of the Act.
(a) Acceleration. The time required to accelerate from rest to 50
km/h shall not exceed 14s for vehicles with a payload carrying
capability of less than or equal to 600 kg.
(b) Gradeability at speed. The grade which can be traversed up at 25
km/h shall be at least 10 percent.
(c) Gradeability limit. The grade which the vehicle can start and
climb for 20s either backward or forward shall be no less than 20
percent.
(d) Forward speed capability. The speed which can be maintained for
5 minutes shall be 75 km/h.
(e) Range. The distance which the vehicle can be operated with vital
accessories on or equivalent shall be:
(1) For an electric vehicle, at least 60 km on the SAE J227 a/B
cycle, and
(2) For a hybrid vehicle, at least 200 km on the SAE J277 a/B cycle.
(f) Battery recharge time. The vehicle shall be capable of
satisfying the range requirement of 475.11(e) above, after being
recharged for no more than 10 hours. At the start of this recharge, the
vehicle shall have 80 percent discharged batteries as specified by the
vehicle test conditions and procedures of 475.3.
(g) Recharge control. The vehicle shall have an automatic recharge
control which will meet the requirements of energy, life, and safety as
such requirements are stated by these performance standards. This
paragraph applies when on-board chargers are used and also when offboard
chargers supplied by or specified by the vehicle manufacturer for
recharge of the vehicle are used.
(h) Energy Consumption. (1) For an electric vehicle, the maximum
amount of nonelectrical energy consumed shall be that used for operation
of the accessories only.
(2) For a hybrid vehicle, nonelectrical energy consumed shall not
exceed 9.8 kJ/kmkg of cargo and shall also not exceed 75 percent of
total energy consumed for propulsion and vital accessories, based on
being fully loaded on a driving schedule of 100 km on SAE J227 a/B
cycle, the cargo not including the operator, and with vital accessories
on.
(i) Battery life. (1) The vehicle shall be capable of at least 75
percent of the range specified in 475.11(e) after 12 months or 15,000
km of normal use, whichever occurs first.
(2) The vehicle shall be capable of 100 percent of the acceleration
and gradeability specified in paragraph (a), (b), and (c) of this
section, for all test conditions and procedures specified by 475.3 for
12 months or 15,000 km or normal use, whichever occurs first.
(3) The batteries shall, if necessary, be repaired or replaced by the
vehicle manufacturer at no cost to the user of the vehicle in order to
meet requirements of paragraphs (i) (1) and (2) of this section.
(j) State-of-charge meter. The vehicle shall have a state-of-charge
meter for the propulsion battery system or other means of providing an
indication of remaining range.
(k) Odometer. The vehicle shall have an odometer.
(l) Passenger comfort heater. The vehicle shall have the capability
of having a passenger comfort heater installed at the option of the
purchaser.
(m) Documentation. Adequate user manuals, maintenance (service)
manuals and parts lists shall be provided.
(n) Emissions. The vehicle shall comply with all applicable Federal
emissions regulations for motor vehicles.
(o) Safety, crashworthiness, damageability, crash avoidance and
hazards. (1) The vehicle shall comply with all applicable Federal motor
vehicle safety standards as set forth in 49 CFR Part 571, unless a
temporary exemption is obtained by the manufacturer from the Department
of Transportation.
(2) Until the Department of Transportation issues regulations which
cover the same subjects, the vehicle shall also have the following
performance characteristics:
(i) The electric propulsion circuit shall be electrically isolated
from other conductive portions of the vehicle sufficiently to prevent
personal hazards due to contacting any portion of the electric
propulsion circuit while in contact with other portions of the vehicle.
(ii) The vehicle shall be capable of complying with ther performance
requirements of Federal motor vehicle safety standards 208 and 301 with
all battery materials remaining outside the passenger compartment.
(iii) Vehicles with battery vents shall have flame barrier provisions
to inhibit battery explosions.
(iv) Ventilation shall be adequate within the battery compartment to
maintain the concentration of hydrogen below 4 percent by volume during
vehicle operation (including charging and maintenance).
(v) The vehicle shall have a device which provides for the positive
disconnection of the battery and which is operable from the normal
operator position.
(vi) The vehicle shall be capable of being parked for up to 8 hours
in temperatures of ^25 C. to 50 C. and subsequently operated, by
moving forward under its own power, at any temperature within this
temperature range without damage to the vehicle or hazard to persons.
10 CFR 475.11 PART 476 -- ELECTRIC AND HYBRID VEHICLE RESEARCH,
DEVELOPMENT, AND DEMONSTRATION PROGRAM SMALL BUSINESS PLANNING GRANTS
Sec.
476.1 Purpose and scope.
476.2 Definitions.
476.3 General requirements.
476.4 Eligibility requirements.
476.5 Program solicitation.
476.6 Evaluation and selection.
476.7 Allowable expenditures.
476.8 Contract proposals.
Authority: Electric and Hybrid Vehicle Research, Development, and
Demonstration Act of 1976, Pub. L. 94-413, 90 Stat. 1260 et seq. (15
U.S.C. 2501 et seq.), as amended by the Department of Energy Act of 1978
-- Civilian Applications, Pub. L. 95-238; Department of Energy
Organization Act, Pub. L. 95-91, 91 Stat. 565 et seq. (42 U.S.C. 7101
et seq.).
Source: 44 FR 57370, Oct. 4, 1979, unless otherwise noted.
10 CFR 476.1Purpose and scope.
This part establishes a program which makes planning grants available
to qualified small business concerns which require assistance in
developing, submitting and entering into contracts for research,
development, or demonstration of electric or hybrid vehicles pursuant to
section 9(c)(2) of the Electric and Hybrid Vehicle Research,
Development, and Demonstration Act of 1976, Pub. L. 94-413, 90 Stat.
1260 et seq. (15 U.S.C. 2501 et seq.), as amended.
10 CFR 476.2Definitions.
As used in this part -- ''Act'' means the Electric and Hybrid Vehicle
Research, Development, and Demonstration Act of 1976, Pub. L. 94-413,
90 Stat. 1260 et seq. (15 U.S.C. 2501 et seq.), as amended.
''Affiliate'' means ''affiliate'' as defined in 13 CFR Part
121.3-2(a).
''Annual receipts'' means the gross income (less returns and
allowances, sales of fixed assets, and interaffiliate transactions) of a
concern (and its domestic and foreign affiliates) from sales of products
and services, interest, rents, fees, commissions, and/or from whatever
other source derived, as entered on its regular books of account for its
most recently completed fiscal year and each of the two preceding years
(whether on a cash, accrual, completed contracts, percentage of
completion, or other acceptable accounting basis) and, in the case of a
concern subject to U.S. Federal income taxation, reported or to be
reported to the U.S. Treasury Department, Internal Revenue Service for
Federal income tax purposes. If a concern has been in business less
than 3 years, its average annual receipts shall be computed by
determining its average weekly receipts for the period in which it has
been in business, and multiplying such figure by 52. If a concern has
acquired an affiliate during the applicable accounting period, it is
necessary in computing the applicant's annual receipts to include the
affiliate's receipts during the entire applicable accounting period,
rather than only its receipts during the period in which it has been an
affiliate. The receipts of a former affiliate are not included even if
such concern had been an affiliate during a portion of the applicable
accounting period.
''Concern'' means any business entity organized for profit (even if
its ownership is in the hands of a nonprofit entity) with its principal
place of business located in the United States. ''Concern'' includes,
but is not limited to, an individual, partnership, corporation, joint
venture, association or cooperative. For the purpose of making
affiliation findings, any business entity, whether organized for profit
or not, and any foreign business entity, (i.e. any entity located
outside the United States) shall be included.
''DOE'' means the Department of Energy.
''Electric vehicle'' means a vehicle which is powered by an electric
motor drawing current from rechargeable storage batteries, fuel cells,
or other portable sources of electrical current, and which may include a
nonelectrical source of power designed to charge batteries and
components thereof.
''Hybrid vehicle'' means a vehicle propelled by a combination of an
electric motor and an internal combustion engine or other power source
and components thereof.
''Small business concern'' means a concern which, including its
affiliates, is independently owned and operated, (a) does not have
assets exceeding $3.0 million as of the date of the latest available
balance sheet of the concern, (b) does not have average annual receipts
for the three preceding fiscal years in excess of $3.0 million, and (c)
does not have an average annual net income (after Federal income taxes)
for the three preceding fiscal years in excess of $300,000 (to be
computed without any benefit of carryover losses), or if a concern has
been in business less than three fiscal years, such average annual
income shall be based on the relevant period it has been in existence.
''United States'' means each of the several States, the territories
and possessions of the United States, the Commonwealth of Puerto Rico
and the District of Columbia.
10 CFR 476.3General requirements.
Except where this part provides otherwise, the award and
administration of financial assistance under this part will be governed
by --
(a) 10 CFR Part 600, entitled ''Assistance Regulations'';
(b) Such other requirements applicable to this part as DOE may from
time to time prescribe; and
(c) Any Federal requirements applicable to grants under this part.
10 CFR 476.4Eligibility requirements.
Grants under this part may be made only to small business concerns
which lack adequate funds to develop, prepare and submit proposals for
entering into contracts for research, development or demonstration of
electric or hybrid vehicles under the Act.
10 CFR 476.5Program solicitation.
(a) Subject to the availability of funds, DOE will solicit
applications for planning grants, at least once each year, by issuing a
program solicitation. Planning grants may be awarded only in response
to the program solicitation.
(b) Each program solicitation shall set forth the requirements and
procedures for applying for grants under this part, including --
(1) An explanation of the planning grant program and how to prepare
and submit applications;
(2) A time schedule for submission of, and DOE action on,
applications;
(3) The place for and manner of submission of applications;
(4) A unique number for identification purposes;
(5) The eligibility requirements;
(6) The evaluation criteria and their relative importance;
(7) An explanation of the evaluation and selection procedures;
(8) The specific problems or areas of concern, if any, which DOE is
emphasizing in its funding of research, development or demonstration of
electric or hybrid vehicles under the Act;
(9) A statement notifying potential applicants that the program
solicitation does not commit DOE to pay any application preparation
costs and that DOE reserves the right to award planning grants to any,
all or none of the applicants;
(10) The total estimated amount of funds which will be available for
the award of planning grants pursuant to the program solicitation;
(11) An explanation of how late applications will be handled;
(12) A copy of DOE's ''Guide for the Submission of Unsolicited
Proposals,'' or such other similar documents as DOE may from time to
time issue;
(13) The required terms and conditions which will be included in
grant instruments;
(14) The budget and financial status formats to be submitted with the
application by which the applicant is required to substantiate its
qualifications as a small business concern, the amount of the requested
grant, and the applicant's financial need therefor;
(15) A statement notifying potential applicants that whenever an
application contains information which may be exempt by law from public
disclosure, it shall be handled in accordance with the procedures in 10
CFR 1004.11.
(16) A DOE contact (name and telephone number) for additional
information; and
(17) Copies of any portions of those materials listed in 476.3 with
which grantees will be required to comply.
(c) Timely notice of the program solicitation will be published in
the Federal Register, Commerce Business Daily, trade and professional
journals and newspapers. Timely notice of the program solicitation will
also be distributed directly to potential applicants to the extent
considered necessary by DOE to assure adequate publicity and opportunity
for participation.
10 CFR 476.6 Evaluation and selection.
(a) Each application will undergo a preliminary review to determine
whether it has been completed in accordance ith the requirements of the
program solicitation and whether the applicant meets the eligiblity
requirements. If this preliminary review reveals that the applicant
does not meet the eligibility requirements, has failed to submit
required financial and budgetary information or has omitted other
required substantive information, the application shall be rejected and
a prompt reply shall be sent to the applicant stating the reason(s) for
the rejection. Applications with nonsubstantive or minor omissions or
defects shall not be rejected. The applicant shall be notified of such
omission or defect and must correct it prior to the award of a grant.
(b) Applications which successfully pass the preliminary review in
accordance with paragraph (a) of this section will be evaluated and
ranked based on the following criteria:
(1) The technical merit and quality of the research, development or
demonstration project for which the applicant intends to develop a
proposal, including such considerations as:
(i) Its potential for making a significant contribution to
accelerating the introduction of electric and hybrid vehicles into the
nation's transportation fleet;
(ii) Its potential for making a significant contribution to solving,
or helping to solve, major problems facing the EHV programs; and
(iii) The problems which must be solved before the anticipated
results of the proposal may make a meaningful contribution, and the
applicant's recognition and acknowledgment of those problems and their
need to be resolved.
(2) The capability of the applicant to successfully carry out the
proposal, as measured by the following factors:
(i) The qualifications of the applicant's personnel;
(ii) The adequacy of the applicant's facilities; and
(iii) The quality of discussion and analysis in the application.
(3) The reasonableness of the applicant's budget for the preparation
of the proposal.
(c) DOE will select applicants for planning grant awards taking into
account the evaluation of the applications under paragraph (b) of this
section and the availability of funds.
10 CFR 476.7 Allowable expenditures.
Planning grant funds may be used only for the direct costs, and other
identified costs normally included as overhead, incurred by the grantee
in developing, preparing and submitting proposals to DOE. No profits or
fees may be added to the grantee's direct costs.
10 CFR 476.8Contract proposals.
(a) When DOE receives an application for a planning grant for the
development, preparation and submission of a proposal for entering into
a contract for research, development or demonstration activities under
the Act which falls within the scope of a current or pending DOE
solicitation notice, DOE will furnish the applicant a copy of the
solicitation notice when available. If the applicant is awarded a
planning grant in these circumstances, its proposal will be considered
as being in response to the solicitation notice.
(b) All other contract proposals will be considered as unsolicited
proposals.
10 CFR 476.8 Pt. 478
10 CFR 476.8 PART 478 -- METHANE TRANSPORTATION RESEARCH AND
DEVELOPMENT; REVIEW AND CERTIFICATION OF CONTRACTS, GRANTS, COOPERATIVE
AGREEMENTS, AND PROJECTS
Sec.
478.1 Purpose and scope.
478.2 Definitions.
478.3 Development of information on industry research and
development.
478.4 Review of DOE program plans.
478.5 Required information from applicant.
478.6 Review and certification by manager.
478.7 Disclosure and reviewability of certification.
478.8 Standards and criteria.
Authority: Methane Transportation Research, Development, and
Demonstration Act of 1980, Pub. L. 96-512, 94 Stat. 2827 (15 U.S.C.
3801); Department of Energy Organization Act, Pub. L. 95-91, 91 Stat.
565 (42 U.S.C. 7101 Note).
Source: 47 FR 13705. Mar. 31, 1982, unless otherwise noted.
10 CFR 478.1Purpose and scope.
These regulations implement section 4(d) of the Methane
Transportation Research, Development, and Demonstration Act of 1980 (15
U.S.C. 3801), and apply to each new contract, grant, cooperative
agreement, Department of Energy (DOE) project, or other agency project
funded or to be funded under the research and development authority
conveyed upon the Secretary of Energy by that Act. These regulations do
not apply to subcontractors, contractors under grants or cooperative
agreements, or to contracts, grants, cooperative agrements, DOE
projects, or other agency projects entered into, made, or formally
approved and initiated prior to December 12, 1980, or with respect to
any renewal or extension thereof. Insofar as contracts, grants, and
cooperative agreements are concerned, these regulations provide
procedures and requirements, in addition to those generally applicable
under the assistance and procurement regulations of the Federal agency
funding the research and development under the Act.
10 CFR 478.2Definitions.
For purpose of these regulations --
''Act'' means the Methane Transportation Research, Development, and
Demonstration Act of 1980, Pub. L. 96-512; 94 Stat. 2827 (15 U.S.C.
3801).
''Agency project'' means research and development requested by DOE
under the Act performed by employees of a Federal agency or of a
national laboratory operated for a Federal agency.
''Applicant'' means any private laboratory, university, nonprofit
organization, industrial organization, private agency, institution,
organization, corporation, partnership, individual, or public agency
other than a Federal agency.
''DOE'' means the United States Department of Energy.
''DOE project'' means research and development under the Act by
employees of DOE or of a national laboratory operated for DOE.
''Federal agency'' means an executive agency as defined by 5 U.S.C.
105.
''Manager'' means the Federal program official who requests that a
contracting or grants officer negotiate a contract, grant, or
cooperative agreement; who requests that a contracting officer
authorize transfer of DOE funds for an agency project; or who
authorizes a DOE project to begin.
''Methane'' means either natural gas (as defined in 2(1) of the
Natural Gas Policy Act of 1978), gas derived from coal, liquefied
natural gas, or any gaseous transportation fuel produced from biomass,
waste products, and other renewable resources.
''Related facilities'' means any facility for the transmission,
storage, or dispensing of methane fuel for vehicles.
''Research and development'' means activities constituting a project
to advance the state of the art of methane-fueled vehicles or related
facilities and does not mean activities involving technology transfer to
mass production, evaluative testing, preliminary planning for a DOE or
an agency project, or program administration and management.
''Solicitation'' means a formal, written request for
proposals/applications to perform research and development under a
contract, grant, or cooperative agreement, typically including
evaluation criteria and a statement of the work to be done or areas to
be investigated.
''Vehicle'' means any truck, van, station wagon, bus, or car used on
public roads or highways as well as off-road agricultural equipment,
such as tractors, harvesters, and so forth, which currently burn
gasoline or diesel fuel.
10 CFR 478.3Development of information on industry research and
development.
Before completing program planning for each fiscal year, the manager
shall search appropriate data archives to identify planned, ongoing, or
completed research and development on methane-fueled vehicles and
related facilities. In addition, when necessary the manager shall
contact private sector entities to determine the nature of any research
and development of this kind which they may be planning or conducting.
This information, which will provide a data base for making
certifications under 478.6, shall be compiled and made available to the
public, after removal of any proprietary information as described in 10
CFR 1004.10(b)(4).
10 CFR 478.4Review of DOE program plans.
In formulating a program plan for the program authorized by the Act,
the DOE manager shall make the draft program plan available for review
and shall solicit comments from persons, in both the private sector and
other Federal agencies, concerned with research and development of
methane-powered vehicles and related facilities. At the same time, the
manager shall place in the Commerce Business Daily and the Federal
Register notices that the plan is available for comment. The manager
shall take these comments into account in ensuring that planned projects
will not supplant, duplicate, displace, or lessen private sector
activities as provided in the Act. The manager shall maintain and make
available a record of the comments solicited and received, and shall
include in the program plan a discussion of the consideration of the
comments.
10 CFR 478.5Required information from applicant.
Any proposal for a contract, grant, or cooperative agreement, under
the Act to support research and development activities of methane-fueled
vehicles or related facilities must --
(a) State whether the activities will initiate or continue research
and development of methane-fueled vehicles or related facilities;
(b) State, insofar as the applicant has information, whether and to
what extent the activities to be supported are technically the same as
activities conducted previously or to be conducted during the term of
the award by any person for research and development of a substantially
similar methane-fueled vehicle or related facility;
(c) Justify research and development activities on methane-fueled
vehicles or related facilities abandoned by any person because of a lack
of mass production potential by presenting information showing a
significant intervening technological advance, promising conceptual
innovation, or other special consideration;
(d) Provide an assurance that the amount of the applicant's own funds
to be expended for research and development of methane-fueled vehicles
or related facilities will not be diminished as a result of the award of
a contract, grant, or cooperative agreement.
(e) Provide to the extent possible --
(1) An assurance that the time period for completing research and
development of the methane-fueled vehicles or related facilities is
likely to be shorter as a result of a contract, grant, or cooperative
agreement; and
(2) The estimated delay, if any, which is likely to occur if the
application for a contract, grant, or cooperative agreement is denied.
Information required from the applicant shall also be set forth in
the solicitation notice for a contract, grant, or cooperative agreement.
Editorial Note: Section 478.5, published at 47 FR 13705, Mar. 31,
1982, contains information collection requirements which will not be
effective until OMB approval has been obtained.
10 CFR 478.6Review and certification by manager.
(a) The manager shall reject any proposal that has not been completed
in accordance with 478.5 of these regulations or any other generally
applicable requirements for the submission of proposals. A rejected
proposal may be corrected, amended or resubmitted as permitted by the
applicable procedures under the assistance and procurement regulations
of the Federal agency receiving the proposal.
(b) After the preliminary review and prior to recommending that
contracting officials negotiate an award, the manager shall review the
proposed research and development to be performed under contract, grant,
or cooperative agreement, to determine whether the proposed project
meets the standards and criteria of 478.8.
(c) Upon consideration of all relevant information, including the DOE
program plan, any applicable comments on the program plan, information
on private-sector research and development programs compiled annually
under 478.3, and all material submitted by the applicant, the manager
--
(1) Shall determine whether the research and development to be
performed complies with the standards and criteria of 478.8;
(2) Shall obtain the concurrence of DOE on the certification
decision, either affirmative or negative, if the manager is not an
employee of DOE;
(3) Shall, in the event of a negative determination under this
section, advise the applicant of the decision in writing with a brief
statement of supporting reasons; and
(4) Shall, in the event of an affirmative determination under this
section, prepare a certification --
(i) Explaining the determination;
(ii) Discussing any allegedly related or comparable industrial
research and development considered and not deemed to be an adequate
basis for not certifying the contract, grant or cooperative agreement;
(iii) Discussing issues regarding cost sharing and patent rights
related to the standards and criteria of 478.8 of these regulations;
and
(iv) Discussing any other relevant issue.
(d) After complying with paragraph (c) of this section, the manager
shall sign the certification and distribute copies to the applicant, if
any and to DOE, if the manager is not a DOE employee --
(1) Immediately in the case of a DOE or agency project; and
(2) After the agreement has been negotiated in the case of a
contract, grant, or cooperative agreement. The applicant's copy shall
accompany the award. In this case, the manager shall informally notify
the applicant of the outcome of his decision under paragraph (c)(1) of
this section as soon as possible after it is made.
10 CFR 478.7 Disclosure and reviewability of certification.
Any certification issued under these rules is --
(a) Subject to disclosure under 5 U.S.C. 552 and section 17 of the
Federal Nonnuclear Energy Research and Development Act of 1974, as
amended (42 U.S.C. 5918); and
(b) Available to the Committee on Science and Technology of the House
of Representatives and the Committee on Energy and Natural Resources of
the Senate; and
(c) Subject neither to judicial review nor to the provisions of 5
U.S.C. 551-559, except as provided under paragraph (a) of this section.
10 CFR 478.8 Standards and criteria.
Research and development to be performed under a contract, grant, or
cooperative agreement, as a DOE project, or as an agency project under
the Act may be certified under these regulations only if the research
and development to be conducted --
(a) Supplements the research and development efforts of industry or
any other researcher on methane-fueled vehicles or related facilities;
(b) Is not duplicative of efforts previously abandoned by private
researchers unless the project has been justified by an intervening
technological advance, promising conceptual innovation, or other special
consideration;
(c) Would not be performed during the term of the award but for the
availability of the Federal funding being sought;
(d) Is likely to produce an advanced methane-fueled vehicle or
related facility suitable for steps toward technology transfer to mass
production in a shorter time period than would otherwise occur;
(e) Is not technologically the same as efforts, by any person,
conducted previously or to be conducted during the term of the award
regarding a substantially similar advanced methane-fueled vehicle or
related facility; and
(f) If not likely to result in a decrease in the level of private
resources expended for research and development on methane-fueled
vehicles and related facilities by substituting Federal funds without
justification.
10 CFR 478.8 Pt. 490
10 CFR 478.8 PART 490 -- EMERGENCY BUILDING TEMPERATURE RESTRICTIONS
10 CFR 478.8 Subpart A -- Scope and Definitions
Sec.
490.1 Scope.
490.2 Effective date.
490.3 Authority to contract or delegate.
490.4 Authority to issue orders and guidelines.
490.5 Definitions.
10 CFR 478.8 Subpart B -- Heating and Cooling Restrictions
490.11 HVAC systems without capability for simultaneous heating and
cooling.
490.12 HVAC systems with capability for simultaneous heating and
cooling.
490.13 Requirement for accuracy of space-conditioning control
devices.
490.14 Regulation of building temperatures during unoccupied periods.
490.15 Auxiliary heaters.
490.16 Use of ventilating equipment.
490.17 Measurement techniques.
490.18 Exemptions from heating and cooling restrictions.
10 CFR 478.8 Subpart C -- Domestic Hot Water
490.21 Regulation of hot water controls.
490.22 Measurement of domestic hot water temperature.
490.23 Maintenance of hot water temperature control devices.
490.24 Exemption from hot water restrictions.
10 CFR 478.8 Subpart D -- Exemptions
490.31 General exemptions.
490.32 Specific exceptions.
490.33 Limitation of exceptions or exemptions.
490.34 Scope of exceptions or exemptions.
490.35 Exemption procedures for states.
10 CFR 478.8 Subpart E -- General Provisions
490.41 Joint and several liability.
490.42 Reporting requirement.
490.43 Self-Certification and Filing of Building Compliance
Information Form.
10 CFR 478.8 Subpart F -- Administrative Procedures
490.51 Purpose and scope.
490.52 Notice of violation.
490.53 Violation Order.
490.54 Violation Order for Immediate Compliance.
490.55 Modification or rescission.
490.56 Stay pending judicial review.
490.57 Consent order.
490.58 Remedies.
10 CFR 478.8 Subpart G -- Investigations, Violations, Sanctions,
Injunctions, and Judicial Actions
490.61 Investigations.
490.62 Violations.
490.63 Sanctions.
490.64 Injunctions.
Authority: Federal Energy Administration Act of 1974, (15 U.S.C.
761 et seq.); Energy Policy and Conservation Act, (42 U.S.C. 6201 et
seq.), as amended; Department of Energy Organization Act, (42 U.S.C.
7101 et seq.); EO 11790, 39 FR 23185 (June 27, 1974); EO 12009, 42 FR
4627 (Sept. 15, 1977); Standby Conservation Plan No. 2, Emergency
Building Temperature Restrictions, 44 FR 12906 (Mar. 8, 1979); EO
11912, 41 FR 15825 (Apr. 13, 1976); Presidential Proclamation No.
4667, 44 FR 40629 (July 12, 1979); and Presidential Proclamation No.
4750, 45 FR 26019 (Apr. 17, 1980).
Source: 46 FR 8415, Jan. 26, 1981, unless otherwise noted.
10 CFR 478.8 Subpart A -- Scope and Definitions
10 CFR 490.1Scope.
Except as otherwise provided in this part, this part applies to
covered buildings in each state or political subdivision thereof, and
shall supercede any law of any state or political subdivision thereof or
any Federal order, regulation or directive, to the extent such law,
order, regulation or directive is inconsistent with these regulations or
any guidelines or orders issued pursuant thereto.
10 CFR 490.2Effective date.
These regulations first took effect on July 16, 1979, and, by
Presidential Proclamation of April 15, 1980, will continue to be
effective through January 16, 1981. The regulations may be terminated
or suspended by the President at any time.
10 CFR 490.3Authority to contract or delegate.
DOE may delegate or contract for the carrying out of all or any part
of the functions under this part.
10 CFR 490.4Authority to issue orders and guidelines.
DOE may issue such orders and guidelines, and may make such
adjustments, as are necessary to administer and implement the provisions
of these regulations.
10 CFR 490.5Definitions.
(a) ''Capability for simultaneous heating and cooling'' means an HVAC
system that can supply heating to one part of the space-conditioning
equipment while at the same time supplying cooling to another, including
but not limited to dual-duct, reheat, recool, multizone fans, fan-coil
units in combination with central air and induction units in combination
with central air.
(b) ''Cooling season'' means those periods when the HVAC system in a
covered building is operated such that no space heating is being used in
that building.
(c) ''Covered building'' means every building or portion of a
building, but excludes residential buildings, hotels or other lodging
facilities, hospitals and health care facilities, elementary schools,
nursery schools and day-care centers, and such other buildings and
facilities as the Secretary may by rule determine: Provided, That to
the extent that the non-sleeping facilities of a hotel, motel or other
lodging facility have space-conditioning control devices separate from
the sleeping facilities, the non-sleeping facilities are not excluded
from the definition.
(d) ''Dew point temperature'' means the temperature at which
condensation of water vapor begins as the temperature of the air-vapor
mixture is reduced. When the dry-bulb temperature equals the dew point
temperature, the relative humidity is 100 percent.
(e) ''DOE'' means the Department of Energy.
(f) ''Domestic hot water'' means hot water which is intended for use
in covered buildings for personal hygiene or general cleaning.
(g) ''Dry-bulb temperature'' means the temperature of air as measured
by a dry-bulb, or ordinary thermometer which directly measures air
temperature. Where unusual radiant heat gain or loss, or where
unusually high air velocity conditions prevail, an adjusted dry-bulb
temperature may be calculated in accordance with American Society of
Heating, Refrigerating, and Air Conditioning Engineers (ASHRAE) Standard
55-74 Thermal Environmental Conditions for Human Occupancy.
Alternatively, Temperature may be read directly using a Vernon-type
globe thermometer.
(h) ''Elementary School'' means any school which has any grades
kindergarten through sixth grade, provided, that if the non-elementary
grade portions of a building have space-conditioning control devices
separate from the elementary portions, the non-elementary grade portions
are not included within the definition of elementary school.
(i) ''Fuel distributor'' means any person who delivers oil or other
fuel for use in a covered building.
(j) ''Heating season'' means those periods when the HVAC system in a
covered building is operated such that no space cooling energy is used
in that building.
(k) ''Humidity'' means a measure of the water-vapor content of air.
(l) ''HVAC'' means Heating, Ventilating and Air Conditioning.
(m) ''HVAC System'' means a system that provides either collectively
or individually the processes of space heating, ventilating and/or air
conditioning within or associated with a building.
(n) ''Hospital and health care facility'' means a building such as a
general hospital, tuberculosis hospital or any other type of hospital,
clinic, nursing or convalescent home, hospice or other facility duly
authorized to provide hospital or health care services under the laws of
the jurisdiction in which the institution or facility is located, but
does not include the offices of physicians, dentists and other members
of health care professions licensed by the State to provide health
related services, which are not located in such a building.
(o) ''Hotel or other lodging facility'' means a building where
sleeping and lodging accommodations are provided to the public, or to
the members of a private membership organization or other private
facility, in the ordinary course of business.
(p) ''Occupied period'' means that time of the day or night when the
covered building or portion thereof is used for its ordinary function or
functions.
(q) ''Operator'' means any person, whether lessee, sublessee or
assignee, agent or other person, whether or not in physical possession
of a covered building, who has control, either directly or indirectly
through an agent, of heating, cooling or hot water equipment servicing
the covered building.
(r) ''Owner'' means any person, whether or not in physical possession
of a covered building, in whom is vested legal title, and who has
control, either directly or indirectly through an agent, of heating,
cooling or hot water equipment servicing the covered building.
(s) ''Person'' means any individual, corporation, company,
association, firm, partnership, society, trust, joint venture, or joint
stock company, the United States or any State or political subdivision
thereof, the District of Columbia, Puerto Rico, any U.S. territory or
possession, or any agency of the United States or any State or political
subdivision thereof, or any other organization or institution.
(t) ''Public utility'' means a publicly or privately owned and
operated utility which is engaged in the sale of electric power or
natural gas to end-users.
(u) ''Relative humidity'' means the ratio of the amount of water
vapor in the air at a specific temperature to the maximum water vapor
capacity of the air at that temperature.
(v) ''Residential building'' means any building used for residential
purposes but does not include any portion of such building used for
commercial, industrial or other business purposes and which, with
respect to the heating and cooling requirements of these regulations,
has separate heating or cooling space-conditioning control devices or,
with respect to water temperature restrictions, has separate hot water
temperature control devices.
(w) ''Room'' means that portion of the interior space which is
contained within the exterior surfaces of a building, which is contained
within floor to ceiling partitions, and which is conditioned directly or
indirectly by an energy using system.
(x) ''Secretary'' means the Secretary of the Department of Energy.
(y) ''Solar Energy'' means energy derived from the sun directly
through the solar heating of air, water and other fluids; indirectly
through the use of electricity produced by solar photovoltaic or solar
thermal processes; or indirectly through the use of wind, geothermal,
small scale water power or biomass, including wood, and any combustible
municipal or industrial trash or waste materials.
(z) ''Space-conditioning control device'' means a device for directly
or indirectly controlling the room temperature and/or humidity by means
of the HVAC system.
(aa) ''Special equipment'' means equipment for which carefully
controlled temperature levels are necessary for proper operation or
maintenance.
(bb) ''State'' means any State, the District of Columbia, Puerto
Rico, or any territory or possession of the United States.
(cc) ''Temperature control device'' means a thermostat or any other
device used to regulate the operation of heating or cooling equipment or
a hot water heater.
(dd) ''Unoccupied'' means those periods eight hours or longer of the
day or night other than the occupied period.
(ee) ''Wet-bulb temperature'' means the temperature of air as
measured by a wet-bulb thermometer, which is a thermometer having the
bulb covered with a cloth, usually muslin, that is saturated with water.
(ff) ''Coolant'' means the liquid which is circulated through heat
exchangers for the purpose of removing heat from the air. The coolant
may be circulating water, refrigerant itself, or another fluid.
(gg) ''Energy that would otherwise be wasted'' means any heating
energy rejected by any equipment of process, which can be employed
directly or indirectly to provide for space heating or cooling or for
domestic water heating without increasing the load on the original
equipment.
(hh) ''Intermediate season'' means any time when both heating and
cooling are being supplied to the entire building, but at different
times on the same day, or are being supplied at the same time to
different spaces in the building.
(ii) ''Reheat'' means the process of first cooling supply air and
then raising the temperature again, by passing it over a heated surface
or by mixing with warm air or by any other method, before introduction
into living space.
(jj) ''Work station'' means the location within a room where an
employee ordinarily performs his or her principal work related tasks.
10 CFR 490.5 Subpart B -- Heating and Cooling Restrictions
10 CFR 490.11HVAC systems without capability for simultaneous heating
and cooling.
In covered buildings with HVAC systems without the capability for
simultaneously heating and cooling the building:
(a) No operator shall set space-conditioning control devices so that
energy is consumed to raise the room dry-bulb temperature above 65 F.;
(b) No operator shall set space-conditioning control devices so that
energy is consumed to lower the room dry-bulb temperature below 78 F.:
Provided, That energy may be consumed to lower the room dry-bulb
temperature below 78 F. to the extent necessary to lower the room
dew-point temperature to 65 F.
10 CFR 490.12HVAC systems with capability for simultaneous heating and
cooling.
In covered buildings with HVAC systems capable of simultaneous
heating and cooling of the building or portions thereof, operators shall
set space-conditioning control devices in accordance with the following
requirements:
(a)(1) Except as otherwise provided in this section, no operator
shall set space-conditioning control devices so that energy is consumed
to raise the room dry-bulb temperature above 65 F.
(2) Except as otherwise provided in this section, no operator shall
set space-conditioning control devices so that energy is consumed to
lower the room dry-bulb temperature below 78 F.: Provided, That energy
may be consumed to lower the room dry-bulb temperature below 78 F. to
the extent necessary to lower the room dew-point temperature to 65 F.;
(3) During the intermediate season, at those times or in those areas
where heat is being supplied to a room, operators of HVAC systems must
comply with the requirements of paragraph (a)(1) of this section.
During the intermediate season, when cooling, operators must comply with
the requirements of paragraph (a)(2) of this section, or alternatively
with paragraph (b)(1)(ii) of this section for operators of fan-coil,
induction, baseboard, or similarly operated units, or paragraph
(d)(1)(i) of this section for operators of ''all-air'' systems.
(b)(1) Operators of systems where the cooling or heating of room air
takes place in equipment located in the occupied space (fan coil,
induction, baseboard or similarly operated units) shall set
space-conditioning control devices in accordance with the requirements
of paragraph (a) of this section, or alternatively in the following
manner.
(i) No heat is provided to the heating coil during the cooling
season,
(ii) No liquid coolant is provided to the cooling coil at coolant
temperatures below 55 F., and
(ii) No heat is supplied to a room if the room dry-bulb temperature
is greater than 65 F.
(2) Operators of fan-coil, induction, baseboard or similarly operated
units may alternate at any time between the requirements of paragraphs
(a) and (b)(1) of this section.
(c) Operators of heat-pump systems shall set space-conditioning
control devices in accordance with the requirements of paragraph (a) of
this section.
(d)(1) in lieu of complying with the requirements of paragraph (a) of
this section, operators of HVAC systems in which the room temperature is
controlled by varying the temperature or flow volume of air which is
introduced into the occupied space (''all-air'' systems, including those
with reheat) may set space-conditioning control devices so that:
(i) The dry-bulb temperature of the air leaving the cooling coils is
60 F. or greater,
(ii) During the cooling season, the heating coil is turned off and
the space-conditioning control device is set to 78 F., and
(iii) During the heating season, if the heating coil is turned on,
the space-conditioning control device is set to 65 F.
(2) Operators of HVAC systems in which the room temperature is
controlled by varying the temperature or flow volume of the air which is
introduced into occupied space may alternate at any time between the
requirements of paragraphs (a) and (d)(1) of this section.
(e)(1) Notwithstanding the requirements of any other subsection of
this section, where a licensed professional engineer certifies by
analysis that operation of a covered building in accordance with the
requirements of paragraph (e)(2) of this section during periods
prescribed in the analysis will result in the consumption of less energy
than compliance with the requirements of paragraphs (a) through (d) of
this section, that building may be operated in accordance with the
requirements of paragraph (e)(2) of this section during those periods.
(2) For covered buildings qualified under the provisions of paragraph
(e)(1) of this section, space-conditioning control devices shall be set
at levels consistent with maximum energy savings, and the cooling system
shall be adjusted such that:
(i) No liquid coolant is provided to the cooling coil at coolant
temperatures below 55 F.; or
(ii) The dry-bulb temperature of the air leaving the cooling coils is
60 F. or greater.
(3) When a building or portion thereof is being cooled the use of
reheat or other form of heat addition is prohibited, except that when an
occupied covered building with a balanced distribution system is being
cooled to a dry bulb temperature of 78 degrees or higher (or to another
temperature permitted by a claimed exemption or approved exception) and
the dry bulb temperature of any part or parts of the building falls to
65 degrees or below, heat may then be added to those part or parts by
means of reheat equipment, portable electric heaters, opening the window
or by any other method. In such cases heat may be added to maintain no
more than 65 F. in those occupied parts in which the temperature would
otherwise be less than 65 F. When reheat is thus added the temperature
of the air leaving the cooling coils must be held at 60 F. or greater,
unless by so doing the temperature in other rooms would become higher
than 78 F. in which case a supply air temperature which is no lower
than necessary to maintain a minimum of 78 F. in those other rooms is
permitted.
(4) When compliance with the requirements of paragraphs (a), (b)(1),
(d)(1), or (e)(2) of this section would subject the compressor to the
likelihood of damage, the coolant temperature may be lowered to the
temperature level necessary to prevent such damage.
(5) Operators of covered buildings qualified under the provisions of
paragraph (e)(1) of this section may alternate at any time between the
requirements of paragraphs (a) and (e)(2) of this section.
(6) The certified analysis by a licensed professional engineer shall
be made available to DOE or its delegate upon request.
(7) It shall be deemed a violation of the requirements of this part
for a licensed professional engineer to falsely certify the analysis
authorized by paragraph (e)(1) of this section.
10 CFR 490.13Requirement for accuracy of space-conditioning control
devices.
(a) The operator of a covered building shall maintain within
reasonable tolerances of accuracy and repair the space-conditioning
control devices used to control temperature or humidity.
(b) No person may alter or relocate a space-conditioning control
device to thwart the intent of these regulations, or to bring about room
temperatures prohibited elsewhere in these regulations.
10 CFR 490.14Regulation of building temperatures during unoccupied
periods.
(a) During periods any covered building is unoccupied eight hours or
more before the next normal occupied period:
(1) The heating system for that building shall not be operated if the
anticipated minimum outdoor air dry-bulb temperature for the unoccupied
period is greater than 50 F., and the cooling system for that building
shall not be operated. The requirements of this subsection may be
satisfied by turning off the circulating air or circulating water
system.
(2) If the anticipated minimum outdoor air dry-bulb temperature for
the unoccupied period is less than 50 F., the space-conditioning
control devices for the heating system for that building shall be set
such that one of the following results:
(i) The room dry-bulb temperature is less than 55 F.;
(ii) The heated supply-air dry-bulb temperature is less than 100 F.;
(iii) The heating-water dry-bulb temperature is less than 120 F.; or
(iv) The space-conditioning control devices are set at less than 55
F., or at their lowest set point.
(3) HVAC system operation during unoccupied periods is permitted
where requested by the public utility or district heating system
servicing the building for purposes of load management.
(4) Notwithstanding the requirements of this section:
(i) HVAC system operation during unoccupied periods is permitted to
the extent necessary to prevent damage to the covered building or its
contents;
(ii) The HVAC system may begin operating at such time so that the
temperature levels authorized by this subpart may be reached at a time
simultaneous with the beginning of the occupied period.
(5) When a building is heated by a heat pump such that the
requirements of paragraphs (a) (1) and (2) of this section may result in
higher monthly peak demand or increased monthly energy consumption, or
both, the space-conditioning control device during unoccupied periods
may be set at 60 F.
10 CFR 490.15Auxiliary heaters.
No auxiliary heating devices such as portable electric heaters, heat
lamps or other devices whose principal function at the time of operation
is to produce space heating may be operated except at such times that
use of energy for heating purposes is authorized under the other
sections of this subpart or when the covered building is unoccupied.
When an auxiliary heating source is in use in a particular room or at a
particular work station, the temperature in that room or at that work
station shall not be brought above 65 F.
10 CFR 490.16Use of ventilating equipment.
Nothing in this subpart shall be deemed to prohibit the use of
ventilating fan or pump power to heat a building to a dry-bulb
temperature above 65 F. or to cool a building to a dry-bulb
temperature below 78 F.
10 CFR 490.17Measurement techniques.
(a) Where a space-conditioning control device controls the
temperature for more than one room, the measurement may be taken in the
room containing the device or any other regularly occupied room
controlled by that device. The room with the highest temperature when
cooling and the lowest temperature when heating may be measured for
purposes of determining compliance with the requirements of this
subpart.
(b) Except as otherwise provided in this section, compliance with the
requirements of this subpart shall be determined by reading the
set-point of the space-conditioning control device which controls the
temperature for the room.
(c) Any of the following methods for measuring dry-bulb temperature,
dew-point temperature, relative humidity and wet-bulb temperature may be
utilized in lieu of a reading of the set-point on the space-conditioning
control device. An operator shall be deemed to have complied with any
temperature or humidity requirement of this subpart so long as any one
measurement technique indicates compliance with the relevant temperature
or humidity requirement.
(1) Dry-bulb temperature shall be measured by:
(i) A thermometer placed within 24 inches of the space-conditioning
control device;
(ii) The average of thermometer readings taken two feet away from and
at the center of each external wall in the room, and at the center of
the room;
(iii) If there are no external walls, the temperature at the center
of the room; or
(iv) The average of thermometer readings taken at representative work
stations in the room.
(2) Dew-point temperature shall be measured by:
(i) Observing the temperature of a glass at which condensation first
occurs while cooling the glass;
(ii) By a dew-point indicating instrument; or
(iii) By inference from the wet-bulb temperature or the relative
humidity.
(3) The relative humidity shall be measured by:
(i) A humidity-indicating instrument (hygrometer); or
(ii) By inference from the dew-point or wet-bulb temperature.
(4) The wet-bulb temperature shall be measured by:
(i) A wet-bulb-temperature-indicating instrument (psychrometer); or
(ii) By inference from the dew-point temperature or relative humidity
measurement.
(5) The dew-point temperature, relative humidity and wet-bulb
temperature may be measured within 24 inches of the humidity
space-conditioning control device if located in the room, or in the same
locations as used in the measurement of the dry-bulb temperature.
(6) To account for HVAC system cycling, all temperature and humidity
readings may be taken as the average of several measurements taken at
equal time intervals.
(7) Any temperature measurement shall be taken at between four and
six feet from the floor.
(d) Before setting thermostats at the required level, the operator
shall insure that the HVAC distribution system is properly balanced in
accordance with generally accepted industry practice.
10 CFR 490.18 Exemptions from heating and cooling restrictions.
(a) The requirements of this subpart shall not apply to:
(1) Covered buildings or portions thereof which are neither heated
nor cooled or which are equipped with space heating devices and space
cooling devices with total rated output less than 3.5 Btu per hour (1
watt) per square foot of gross floor area.
(2) Buildings containing HVAC systems capable of using outdoor air,
cold well water or evaporation of water for cooling effect without
operation of a vapor compression or absorption-refrigeration system, but
this exemption applies only with respect to cooling, and only during
those periods when the outdoor air, cold well water and/or evaporation
effect provides the only source for cooling.
(3) Buildings containing HVAC systems capable of using energy that
otherwise would be wasted, but only during those periods when the
otherwise wasted energy provides the only source of heating or cooling
energy.
(4) Buildings containing HVAC systems capable of using solar energy,
but only during those periods when solar energy provides the only source
of heating or cooling energy.
(b) For buildings or portions of buildings where the capacity of the
HVAC system is insufficient to maintain the building or portion thereof
at the minimum temperature levels for cooling authorized by this
regulation when the building or portion thereof is occupied, the
operator of said building may cool the building or portion of the
building to a temperature level below 78 F. before the building or
portion of the building is occupied: Provided, That said reduced
temperature level may only be maintained for the period of time
necessary so that the temperature will reach the minimum level permitted
by this regulation during the building's occupied period.
(c) Exemptions under this section may not be claimed when energy,
other than waste, solar, pump or fan energy is used to operate a vapor
compressor or absorption refrigerator.
10 CFR 490.18 Subpart C -- Domestic Hot Water
10 CFR 490.21 Regulation of hot water controls.
(a) The operator of a covered building shall set hot water
temperature control devices so that the temperature of domestic hot
water in such covered building does not exceed the greater of:
(i) 105 F., or
(ii) The lowest setting on the hot water temperature control device.
(b) The operator shall, where practicable, shut off domestic hot
water circulating pumps during periods when a covered building is to be
unoccupied for more than eight hours when such actions will not cause
damage to the building, it systems, or internal processes or articles.
10 CFR 490.22Measurement of domestic hot water temperature.
(a) The temperature of domestic hot water shall be taken as the
domestic hot water storage tank temperature measured in the hot water
supply line, at the tank temperature control point, or at the tap
nearest the tank discharge point.
10 CFR 490.23Maintenance of hot water temperature control devices.
(a) The operator of a covered building shall maintain all domestic
hot water temperature control devices in that building within reasonable
tolerances of accuracy and repair.
(b) No person may alter a hot water temperature control device with
the intent of having that device function inaccurately.
10 CFR 490.24Exemption from hot water restrictions.
(a) The provisions of this subpart shall not apply in a covered
building where the domestic hot water heating equipment also provides
hot water for manufacturing, industrial, commercial or food preparation
or handling processes and such processes or process clean-up procedures
require hot water temperatures in excess of those prescribed in this
subpart. In order to achieve the maximum possible energy savings, such
temperature levels should be maintained at the minimum level necessary
to provide for the exempted needs.
(b) The provisions of this subpart shall not apply in a covered
building where domestic hot water is the only source available for
dishwashing or other purposes in such covered building and state or
local health regulations prescribe a minimum temperature level above 105
F. for dishwashing or such other purposes. Domestic hot water control
devices shall be set so as not to exceed the minimum level required by
the state or local health regulations.
(c) The provisions of this subpart shall not apply to combination
domestic water heating/space heating boilers during the heating season.
(d) The provisions of this subpart shall not apply at such times that
solar energy provides the only source for domestic hot water heating
energy. At such times that a hot water heating system using a non-solar
energy source is being operated in conjunction with solar energy, this
exemption shall not apply.
(e) The provisions of this subpart shall not apply to domestic hot
water heating systems capable of using heat that otherwise would be
wasted, but only at such times when the waste heat provides the only
source of hot water heating energy.
(f) Exemptions under this section may not be claimed when energy,
other than waste, solar, pump or fan energy is used to operate a vapor
compressor or absorption refrigerator.
10 CFR 490.24 Subpart D -- Exemptions
10 CFR 490.31General exemptions.
(a) In addition to the exemptions provided in other subparts, and
subject to the limitations of this subpart, the following exemptions
from the requirements of Subpart B or C of this part are available to
any person for a building or portion of a building in accordance with
the provisions of this section:
(1) Where a ''manufacturer's warranty'', service manual or equipment
service contract requires specific temperature levels to prevent damage
to special equipment.
(2) Where maintenance of certain temperature and humidity levels is
critical to materials and equipment used in manufacturing, industrial or
commercial processes.
(3) Where maintenance of certain temperature and humidity levels is
required for the proper storage or handling of food or other
agricultural commodities, raw materials, goods in process and finished
goods.
(4) Any other circumstances where special environmental conditions
are required to protect plant life essential to the operation of a
business within a covered building, materials or animal life.
(5) Where maintenance of certain temperature levels is required:
(i) To protect the health of persons in offices of physicians,
dentists and other members of health care professions licensed by the
state to provide health-related services;
(ii) To protect the health of persons engaged in rehabilitative
physical therapy in physical therapy facilities;
(iii) With respect to restrictions on heating only, to protect the
health of persons utilizing indoor swimming pools;
(iv) To protect the health of individuals required by security,
safety or health regulations to wear special or protective clothing to
perform manufacturing, inspections or other industrial functions; or
(v) With respect to restrictions on heating only, to protect the
health of persons in workplace or school shower and changing rooms where
showers are part of customary work or school procedure.
(6) Where the structure or insulation of the building will be
damaged.
(7) Where nutritional, recreational, and other facilities are
specifically designated for use by senior citizens the thermostat may be
adjusted to raise the dry-bulb temperature to 70 degrees F. during the
heating season; except that this exemption applies only when senior
citizens activity is being conducted and only to those portions of the
facilities used for senior citizen activity.
(b) Exemptions claimed under Subparts B, C, and D of this part shall
become effective when claimed.
(c) Any person claiming an exemption under any provision of Subparts
B, C, or D of this part shall provide the owner or operator of the
covered building with all necessary information relating to the
exemption including:
(1) The nature of the exemption and the section of the regulations
claimed as the basis for exemption;
(2) The portions of the building for which the exemption is claimed;
(3) The required temperature levels in the exempt portions of the
building consistent with maximum energy savings.
(d) The owner or operator of a covered building shall, upon request
of DOE or its delegate, make available any information provided to the
owner or operator under paragraph (c) of this section.
(e) Any person who claims an exemption to which he is not entitled is
subject to the penalties provided in Subpart G of this part.
(f) Where the person entitled to an exemption under this part is not
the owner or operator of the covered building(s) to which the exemption
applies, the owner or operator of the covered building(s) is authorized
to adjust space-conditioning control devices and hot water temperature
control devices in accordance with 490.34.
(g) Any operator, other than an operator who claims an exemption,
shall not be liable for violation of this part as the result of acting
in reliance upon an exemption which subsequently is determined to be
invalid.
10 CFR 490.32Specific exceptions.
(a) In addition to the general exemptions available under 490.31 or
under Subparts B and C of this part, any person who would experience
special hardship, inequity or an unfair distribution of the burden as a
result of the requirements of Subparts B and C of this part may submit
an ''Application for Exception'' in accordance with Subpart D of Part
205 of this chapter. An exception shall not become effective until such
time as it is granted by DOE.
(b) If the person submitting the ''Application for Exception'' is not
the owner or operator of the covered building(s) to which the requested
exception is to apply, and if the exception is granted by DOE, then the
owner or operator of the covered building(s) is authorized to adjust
space-conditioning control devices and hot water temperature control
devices in accordance with the provisions of the exception provided by
DOE.
(c)(1) Any person who receives an approved exception under paragraph
(a) of this section shall provide the owner or operator of the covered
building with all necessary information relating to the exception
including:
(i) The nature of the exception;
(ii) The portions of the building for which the exception is claimed;
(iii) The authorized temperature levels in the excepted portions of
the building as determined by the terms of the exception or consistent
with maximum energy savings.
(2) The owner or operator of a covered building shall, upon request
of DOE or its delegate, make available any information provided to the
owner or operator under paragraph (c)(1) of this section.
10 CFR 490.33 Limitation of exceptions or exemptions.
(a) Where a portion of a covered building qualifies for an exemption
under 490.31 or any provision of Subparts B and C of this part, or for
an exception under 490.32, the operator may set temperature levels
other than those prescribed in Subparts B and C of this part only for
such portions of the covered building as necessary to maintain
temperatures for the exempted sections. In those covered buildings
where the space-conditioning control device or hot water temperature
control device controls both the exempt and non-exempt portions of the
building, the entire building or portion of the building may operate as
if exempted from the temperature requirements of Subparts B and C.
(b) DOE may limit the exemption or exception granted by this part to
all or any portion of a covered building. DOE may specify heating,
cooling or hot water temperature controls to be applicable in the
excepted portion of a covered building.
10 CFR 490.34 Scope of exceptions or exemptions.
The operator of a covered building subject to an exemption or
exception pursuant to this part shall, where practicable, maintain the
temperature levels prescribed in Subparts B and C of this part, or such
other levels consistent with maximum energy savings. When an exemption
is claimed or an exception granted, the building owner or operator, or
both, shall, upon notification, and without undue delay, take no further
action to impose the temperature limits specified by those regulations
in that portion of the building covered by the exemption or exception.
10 CFR 490.35 Exemption procedures for states.
(a) A state or political subdivision thereof may seek an exemption
from the application of this part in such state or political subdivision
during a period for which the President of the United States or his
delegate determines a comparable program of such state or political
subdivision is in effect. The comparable program may include procedures
permitting any person affected by the regulations to use alernative
means of conserving at least as much energy in affected buildings as
would be conserved by the temperature restrictions.
(b) A state or political subdivision thereof seeking an exemption on
the ground that a comparable program is in effect shall submit to the
secretary a ''Request for Exemption'' which shall include the following
information:
(1) A full description of the comparable program, including the
authority which allows for the mandatory imposition of the program;
(2) An estimate of the types and amount of energy which such program
will conserve;
(3) The effective dates of the program;
(4) A description of energy conservation measures implementable at
the state or local level and their expected energy savings;
(5) A comparison of energy savings estimated to result in that state
or political subdivision from compliance with these regulations and
estimated energy savings under the proposed comparable program which
demonstrates that the comparable program conserves at least as much
energy in the state or political subdivision as these regulations. The
comparisons shall be performed using a consistent methodology for
estimating building energy consumption.
(6) A description of procedures for the approval on a
building-by-building basis of the alternative means and for enforcement
of such alternative means by such state or political subdivision.
(7) Such other information as the Secretary may require.
(c) A request for exemption by a state or political subdivision shall
be sent to the cognizant Regional Representative of the Secretary of
Energy having jurisdiction over such State or unit of local government.
(d) For purposes of this section: ''Comparable program'' means a
plan which is mandatory and which conserves at least as much energy in
the state or political subdivision thereof as adherence to the
requirements of these regulations would be expected to conserve in such
state or political subdivision. The comparable program need not
conserve energy in the same fashion as the building temperature
restrictions require.
10 CFR 490.35 Subpart E -- General Provisions
10 CFR 490.41 Joint and several liability.
The owner and operator shall be jointly and severally liable for the
execution of operator responsibilites under this part where an agency
relationship exists between the owner and operator.
10 CFR 490.42 Reporting requirement.
Any public utility or any fuel distributor shall make available to
the DOE, upon request, customer lists or other information deemed
necessary by DOE to administer and enforce these regulations.
10 CFR 490.43 Self-Certification and Filing of Building Compliance
Information Form.
(a) (1) The owner or operator of a covered building shall, within 30
days of the effective date of this regulation, complete in accordance
with forms and instructions provided by DOE, and post in a prominent
location within the covered building, a ''Certificate of Building
Compliance'' certifying compliance with the requirements of this part.
(2) The ''Certificate of Building Compliance'' shall set forth
exemptions claimed by any persons within the covered building, or any
authorized exceptions claimed by persons within the building.
(b) In addition to the requirements of paragraph (a) of this section,
the owner or operator of a covered building shall, within 30 days of the
effective date of this regulation, submit to DOE in accordance with
forms and instructions to be provided by DOE a ''Building Compliance
Information Form'' describing any exemptions or exceptions claimed by
persons in that building.
(c) It shall be deemed a violation of this part for an owner or
operator to knowingly provide false, misleading or incomplete
information on the ''Building Compliance Information Form'' or the
''Certificate of Building Compliance.''
(d) DOE will make ''Certificates of Building Compliance'' and
''Building Compliance Information Forms'' and instructions available at
convenient locations throughout the country. In addition,
''Certificates of Building Compliance'' and ''Building Compliance
Information Forms'' and instructions for their completion may be
obtained from the Office of Emergency Conservation Programs at the
address listed in the For Information Contact section of this notice.
10 CFR 490.43 Subpart F -- Administrative Procedures
10 CFR 490.51 Purpose and scope.
This subpart establishes the procedures for determining the nature
and extent of violations of section 524(c) of the EPCA and the
procedures for issuance of a Notice of Violation, Violation Order,
Violation Order for Immediate Compliance, Modification or Rescission
Decision and Order, and Stay Decision and 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.
10 CFR 490.52 Notice of violation.
(a) When any audit or investigation discloses, or the DOE otherwise
finds, that any person has engaged, is engaged, or is about to engage in
acts or practices contrary to the provisions of Standby Conservation
Plan No. 2 (Emergency Building Temperature Restrictions) and
implementing regulations in violation of section 524(c) of the EPCA, the
DOE may issue a Notice of Violation. Any notice issued under this
section shall be in writing and shall set forth the findings of fact and
conclusions of law upon which it is based.
(b) Within 10 business days after the service of a Notice of
Violation the person upon whom the Notice is served may file a reply
with the DOE office that issued the Notice of Violation. The DOE may
extend the 10-day period for good cause shown.
(c) The reply shall be in writing and signed by the person filing it.
The reply shall contain a statement of all relevant facts pertaining to
the acts or practices that are the subject of the Notice of Violation.
The reply shall include a statement of the legal, business and other
reasons for the acts or practices; a description of the acts or
practices; and a discussion of the pertinent provisions and relevant
facts reflected in any document submitted with the reply. Copies of all
relevant contracts, reports, abstracts, compilations of data and other
documents shall be submitted with the reply. The reply shall include a
discussion of the relevant authorities which support the position
asserted, including rulings, regulations, interpretations, orders and
decisions issued by DOE.
(d) The reply should indicate whether the person requests an informal
conference regarding the notice. A request for a conference must be in
writing and shall be governed by the provisions of 10 CFR 205.171, which
are incorporated by reference herein and made a part of this subsection.
(e) If a person has not filed a reply with the DOE within the 10-day
or other period authorized for reply, the person shall be deemed to have
admitted the accuracy of the factual allegations and legal conclusions
stated in the Notice of Violation, and the DOE may proceed to issue a
Violation Order in accordance with 490.53.
(f) If the DOE finds, during or after the 10-day or other period
authorized for reply, that no violation has occurred, is continuing, or
is about to occur, or that for any reason the issuance of a Violation
Order would not be appropriate, it shall rescind the Notice of Violation
and inform the person to whom the Notice was issued of the rescission.
10 CFR 490.53 Violation Order.
After considering all information received during the proceeding, the
DOE may issue a Violation Order. The Violation Order may adopt the
findings and conclusions contained in the Notice of Violation 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.
Such Order shall constitute a final agency order subject to judicial
review. Unless otherwise specified, the Violation Order shall be
effective 10 business days after the date of issuance. In the
alternative, the DOE may determine that no Violation Order should be
issued or that the Notice of Violation should be withdrawn for further
consideration or modification. Every determination made pursuant to
this section shall state the relevant facts and legal bases supporting
the determination.
10 CFR 490.54 Violation Order for Immediate Compliance.
(a) Notwithstanding the provisions of 490.52 or 490.53, the DOE may
issue a Violation Order for Immediate Compliance, which shall be
effective upon issuance and until rescinded or suspended, if it finds:
(1) There is a strong probability that a violation has occurred, is
continuing or is about to occur;
(2) Irreparable harm will occur unless the violation is remedied
immediately; and
(3) The public interest requires the avoidance of such irreparable
harm through immediate compliance and waiver of the procedures afforded
under 490.52.
(b) A Violation Order for Immediate Compliance shall be served
promptly upon the person against whom such Order is issued by personal
service, 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 Violation Order for Immediate
Compliance, including the findings required by paragraph (a) of this
section.
(c) The DOE may rescind or suspend a Violation Order for Immediate
Compliance if it appears that the criteria set forth in paragraph (a) of
this section are no longer satisfied. When appropriate, however, such a
suspension or rescission may be accompanied by a Notice of Violation
issued under 490.52.
(d) If at any time in the course of a proceeding commenced by a
Notice of Violation the criteria set forth in paragraph (a) of this
section are satisfied, the DOE may issue a Violation Order for Immediate
Compliance, even if the 10-day period for submitting a reply to that
document has not expired.
10 CFR 490.55Modification or rescission.
(a) Any person to whom a Violation Order or Violation Order for
Immediate Compliance is directed may make application for modification
or rescission of such Order.
(b) The application shall contain a full and complete statement of
all relevant facts pertaining to the circumstances, act or transaction
that is the subject of the application and to the DOE action sought;
and shall include a discussion of the relevant authorities which support
the position asserted, including, but not limited to, DOE rulings,
regulations, interpretations and decisions. The applicant shall fully
describe the events, acts or transactions that comprise the
significantly changed circumstances, as defined in paragraph (e)(2) of
this section, upon which the application is based. The applicant shall
state why, if the significantly changed circumstance is new or newly
discovered facts, such facts were not or could not have been presented
during the prior proceeding.
(c) The application should indicate whether the person requests an
informal conference. A request for a conference must be in writing and
shall be governed by the provisions of 10 CFR 205.171, which are
incorporated by reference herein and made a part of this subsection.
(d)(1) 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.
(2)(i) If the applicant fails to satisfy the requirements of
paragraph (b) of this section, the DOE shall issue an order denying the
application. The order shall state the grounds for the denial.
(ii) The order denying the application shall become final within 5
days of its service upon the applicant, unless within such 5-day period
an amendment to correct the deficiencies identified in the order is
filed with the DOE.
(iii) 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, the
notice shall be an order dismissing the application as amended. Such
order shall be a final agency order subject to judicial review.
(e) Criteria. (1) An application for modification or rescission of
an order shall be processed only if the application demonstrates that it
is based on significantly changed circumstances.
(2) For purposes of this subpart, the term ''significantly changed
circumstances'' shall mean --
(i) The discovery of material facts that were not known or could not
have been known at the time of the proceeding and action upon which the
application is based;
(ii) The discovery of a law, regulation, interpretation, ruling,
order or decision that was in effect at the time of the proceeding upon
which the application is based and which, if such had been made known to
the DOE, would have been relevant to the proceeding and would have
substantially altered the outcome; or
(iii) There has been a substantial change in the facts or
circumstances upon which an outstanding and continuing order of the DOE
affecting the applicant was issued, which change has occurred during the
interval between issuance of such order and the date of the application
and was caused by forces or circumstances beyond the control of the
applicant.
(f) 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 application. The order shall
include a written statement setting forth the relevant facts and the
legal basis of the order. Such order shall be a final agency order
subject to judicial review.
10 CFR 490.56Stay pending judicial review.
(a) Any person to whom a Violation Order or Violation Order for
Immediate Compliance is directed may make application for a stay of such
Order pending judicial review.
(b) The application shall contain a full and complete statement of
all relevant facts pertaining to the act or transaction that is the
subject of the application and to the DOE action sought. Such facts
shall include, but not be limited to, all information that relates to
the satisfaction of the criteria in paragraph (e) of this section. A
copy of the Order from which a stay is sought shall be included with the
application.
(c) 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 applicant, 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.
(d) The DOE shall grant or deny the application for stay within 5
business days after receipt of the application.
(e) Criteria. The grounds for granting a stay are:
(1) A showing that irreparable injury will result in the event that
the stay is denied;
(2) A showing that denial of the stay will result in a more immediate
serious hardship or gross inequity to the applicant than to the other
persons affected by the proceeding;
(3) A showing that it would be desirable for public policy or other
reasons to preserve the status quo ante pending a decision on the merits
of the appeal or exception;
(4) A showing that it is impossible for the applicant to fulfill the
requirements of the original order; and
(5) A showing that there is a likelihood of success on the merits.
(f) 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 application. The order shall
include a written statement setting forth the relevant facts and the
legal basis of the decision, and the terms and conditions of the stay.
(g) The grant or denial of a stay is not an order of the DOE subject
to administrative review.
10 CFR 490.57Consent order.
(a) Notwithstanding any other provision of this Subpart, the DOE may
at any time resolve an outstanding compliance investigation or
proceeding 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. A
Consent Order is a final Order of the DOE having the same force and
effect as a Violation Order issued pursuant to 490.53.
(b) At any time and in accordance with the procedures of 490.55, 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 the
evidence upon which the DOE's acceptance of the Consent Order was based.
(c) Notwithstanding the issuance of a Consent Order, the DOE may seek
civil or criminal penalties or compromise civil penalties pursuant to
Subpart G concerning matters encompassed by the Consent Order, unless
the Consent Order by its terms expressly precludes the DOE from so
doing.
(d) 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 G of this part.
10 CFR 490.58Remedies.
A Violation Order, a Violation Order for Immediate Compliance, a
Modification or Rescission Decision and Order, or a Consent Order may
require the person to whom it is directed to make an appropriate
adjustment in building or domestic hot water temperature, to post a
correct Certificate of Building Compliance, and to take such other
action as the DOE determines is necessary to eliminate the effects of a
violation.
10 CFR 490.58 Subpart G -- Investigations, Violations, Sanctions, Injunctions, and Judicial Actions
10 CFR 490.61Investigations.
Investigations will be conducted in accordance with the provisions
set forth in 10 CFR 205.201.
10 CFR 490.62Violations.
Any practice that circumvents or contravenes or results in a
circumvention or contravention of the requirements of any provision of
this part or any order issued pursuant thereto is a violation of the
regulations stated in this part.
10 CFR 490.63Sanctions.
(a) General. Any person who violates any provision of this part 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 chapter or
any order issued pursuant thereto continues shall be deemed to
constitute a separate violation within the meaning of the provisions of
this chapter relating to criminal fines and civil penalties.
(b) Civil 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 $5,000 for each violation.
(2) The DOE may at any time refer a violation to the Department of
Justice for the commencement of an action for civil penalties. When the
DOE considers it to be appropriate or advisable, it may compromise,
settle and collect civil penalties.
(c) Criminal penalties. (1) Any person who willfully violates any
provision of this part or any order issued pursuant thereto shall be
fined not more than $10,000 for each violation.
(2) The DOE may at any time refer a willful violation to the
Department of Justice for criminal prosecution.
(d) Other penalties. Willful concealment of material facts or false
or fictitious or fraudulent statements or representations, or willful
use of any false writing or document containing false, fictitious or
fraudulent statements pertaining to matters within the scope of section
524(c) of the EPCA by any person shall subject such person to the
criminal penalties provided in 18 U.S.C. 1001 (1970).
10 CFR 490.64Injunctions.
Whenever it appears to the DOE 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 chapter, the DOE
may request the Attorney General to bring an 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 restraining order or a preliminary or permanent injunction
shall be granted without bond. The relief sought may include, without
limitation, a mandatory injunction commanding any person to comply with
any such order or regulation.
10 CFR 490.64 PARTS 491-499 (RESERVED)
10 CFR 490.64 FINDING AIDS
A list of CFR titles, subtitles, chapters, subchapters and parts and
an alphabetical list of agencies publishing in the CFR are included in
the CFR Index and Finding Aids volume to the Code of Federal Regulations
which is published separately and revised annually.
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
Title 10 -- Energy
Material Approved for Incorporation by Reference
Material Approved for Incorporation by Reference
The Director of the Federal Register has approved under 5 U.S.C.
552(a) and 1 CFR Part 51 the incorporation by reference of the following
publications. This list contains only those incorporations by reference
effective as of the revision date of this volume. Incorporations by
reference found within a regulation are effective upon the effective
date of that regulation. For more information on incorporation by
reference, see the preliminary pages of this volume.
10 CFR 490.64 10 CFR CHAPTER II (PARTS 400-499)
DEPARTMENT OF ENERGY
10 CFR
Part 420 State energy conservation plans
American Society of Heating, Refrigerating and Air Conditioning
Engineers, Inc.
345 E. 47th St., New York, NY 10017
Standard 90, Energy Conservation in New Building Design, Sections 4-9
(Aug. 11, 1975) 420.2; 420.7
Part 430-Energy conservation program for consumer products
Air-Conditioning and Refrigeration Institute
1815 N. Fort Myer Drive, Arlington, VA 22209
ARI 210-79 Standard for Unitary Air Conditioning Equipment Part 430,
Subpart B, Appendix M
ARI 240-77 Standard for Air-Source Unitary Heat Pump Equipment Part
430, Subpart B, Appendix M
ARI 280-74 Standard for Central Forced-Air Electric Heating Equipment
Part 430, Subpart B, Appendix N
ARI 320-76 Standard for Water Source Heat Pumps Part 430, Subpart B,
Appendix M
ARI 610-74 Standard for Central System Humidifiers Part 430, Subpart
B, Appendix K1
American National Standards Institute
1430 Broadway, New York, NY 10018
ANSI B38.1-1970 Method of testing for Household Refrigerators,
Combination Refrigerator Freezers and Household Freezers Part 430,
Subpart B, Appendix A and B
ANSI B149.1-1972 Dehumidifiers Part 430, Subpart B, Appendix L
ANSI C16.13-1961 Monochrome Television Broadcast Receivers Part 430,
Subpart B, Appendix H
ANSI Z11.182-1965 (R 1971), Standard Method of Test for Smoke Density
in the Flue Gases from Distillate Fuels (ASTM D 2156-65 (1975)) Part
430, Subpart B, Appendix N and O
ANSI Z21.10.1-1975 Gas Water Heaters Part 430, Subpart B, Appendix E
ANSI Z21.11.1-1974 ANS for Gas-Fired Room Heaters, Vol. 1, Vented
Room Heaters Part 430, Subpart B, Appendix O
ANSI Z21.13-1974 ANS for Gas-Fired Low Pressure Steam and Hot Water
Heating Boilers Part 430, Subpart B, Appendix N
ANSI Z21.44-1973 Gas Fired Gravity and Fan Type Direct Vent Wall
Furnaces Part 430, Subpart B, Appendix O
ANSI Z21.47-1978 Gas Fired Central Furnaces Part 430, Subpart B,
Appendix N and O
ANSI Z21.48-1976 Gas Fired Gravity and Fan Type Floor Furnaces Part
430, Subpart B, Appendix O
ANSI Z21.49-1975 Gas Fired Gravity and Fan Type Vented Wall Furnace
Part 430, Subpart B, Appendix O
ANSI Z91.1-1972 ANS Performance Requirements for Oil-Powered Central
Furnaces Part 430, Subpart B, Appendix N
ANSI Z224.1-1971 Performance Evaluation Procedures for Household
Washers (AHAM HLW-1, Dec. 1971) Part 430, Subpart B, Appendix J
ANSI Z234.1-1972 Room Air Conditioners Part 430, Subpart B, Appendix
F
ANSI Z235.1-1972 Appliance Humidifier Standard (AHAM HU-1-72) Part
430, Subpart B, Appendix K2
American Society of Heating, Refrigerating and Air-Conditioning
Engineers, Inc.
345 E. 47th St., New York, NY 10017
ASHRAE Standard 16-69 Method of Testing for Rating Room Air
Conditioners Part 430, Subpart B, Appendix F
ASHRAE Standard 37-78 Method of Testing for Rating Unitary Air
Conditioning and Heat Pump Equipment Part 430, Subpart B, Appendix M
American Society for Testing and Materials
1916 Race St., Philadelphia, PA 19103
ASTM D 396-78 Standard Specification for Fuel Oils 430.2
ASTM D 2156-65 (1975) Method of Test for Smoke Density in Flue Gases
from Distillate Fuels (ANSI Z 11.182-1965 (R 1971)) Part 430, Subpart B,
Appendix N and O
Association of Home Appliance Manufacturers
20 N. Wacker Dr., Chicago, IL 60606
AHAM HLD-1, June 1974 Performance Evaluation Procedure for Household
Tumble Type Clothes Dryers Part 430, Subpart B, Appendix O
AHAM HLD-2EC, Dec. 1975 Test Method for Measuring Energy Consumption
of Household Tumble Type Clothes Dryers Part 430, Subpart B, Appendix D
AHAM HLW-2EC, Dec. 1975 Test Method for Measuring Energy Consumption
of Household Clothes Washers Part 430, Subpart B, Appendix J
AHAM HLW-1, Dec. 1971 Household Washer Performance Evaluation
Procedure. (ANSI Z 224.1-1971) Part 430, Subpart B, Appendix J
AHAM HU-1-72, Appliance Humidifier Standard (ANSI Z 235.1-1972) Part
430, Subpart B, Appendix K2
AHAM HRF-2-ECFT-1975 Test Procedures to Determine the Temperature and
Energy Consumption of Household Refrigerators, Combination
Refrigerator-Freezers, and Freezers Part 430, Subpart B, Appendix A and
B
Hydronics Institute
35 Russo Pl., Berkeley Heights, NJ 07922
Testing and Rating Standards for Cast Iron and Steel Heating Boilers,
Jan. 1977 Part 430, Subpart B, Appendix N
Underwriters Laboratories Inc.
207 E. Ohio St., Chicago, IL 60611
UL 729-1976 Standard for Safety: Oil-Fired Floor Furnaces Part 430,
Subpart B, Appendix O
UL 730-1974 Standard for Safety: Oil-Fired Wall Furnaces Part 430,
Subpart B, Appendix O
UL 896-1973 Standard for Safety: Oil-Burning Stoves Part 430,
Subpart B, Appendix O
Part 436 -- Federal energy management and planning programs
American Society of Heating, Refrigerating and Air-Conditioning
Engineers, Inc.
345 E. 47th St., New York, NY 10017
Standard 93-77 Methods of Testing to Determine the Thermal
Performance of Solar Collectors 436.76
Part 440 -- Weatherization assistance for low-income persons
Architectural Aluminum Manufacturers Association
35 East Wacher Drive, Chicago, Ill. 60601
ANSI/AAMA 302.9-1977 Part 440, Appendix A
ANSI/AAMA 402.9-1977 Part 440, Appendix A
ANSI/AAMA 1002.10-1983 Part 440, Appendix A
ANSI/AAMA 1102.7-1977 Part 440, Appendix A
American National Standards Institute, Inc.
1430 Broadway, New York, N.Y. 10018
ANSI Z21.8a Part 440, Appendix A
ANSI Z21.17 Part 440, Appendix A
ANSI Z21.21 Part 440, Appendix A
ANSI Z21.47-1978 Part 440, Appendix A
ANSI Z21.66-1977 Part 440, Appendix A
ANSI Z21.67-1978 Part 440, Appendix A
ANSI Z21.68-1978 Part 440, Appendix A
ANSI Z21.71-1981 Part 440, Appendix A
ANSI Z83.1 Part 440, Appendix A
ANSI Z91.2 Part 440, Appendix A
ANSI Z96.2 Part 440, Appendix A
ANSI Z223.1-1980 Part 440, Appendix A
Air-Conditioning and Refrigeration Institute
1501 Wilson Blvd., Arlington, VA 22209
ARI 470-80 Part 440, Appendix A
ARI 1060-80 Part 440, Appendix A
American Society for Testing and Materials
1916 Race Street, Philadelphia, PA 19103
ASTM C208-82 Part 440, Appendix A
ASTM C509-79 Part 440, Appendix A
ASTM C516-80 Part 440, Appendix A
ASTM C517-71 (1979) Part 440, Appendix A
ASTM C533-80 Part 440, Appendix A
ASTM C534-77 Part 440, Appendix A
ASTM C547-77 Part 440, Appendix A
ASTM C549-81 Part 440, Appendix A
ASTM C552-79 Part 440, Appendix A
ASTM C553-70 (1977) Part 440, Appendix A
ASTM C570-72 (1978) Part 440, Appendix A
ASTM C578-83 Part 440, Appendix A
ASTM C591-69 Part 440, Appendix A
ASTM C592-80 Part 440, Appendix A
ASTM C610-67 (1974) Part 440, Appendix A
ASTM C612-77 Part 440, Appendix A
ASTM C665-78 Part 440, Appendix A
ASTM C669-72 (1981) Part 440, Appendix A
ASTM C720-72 (1979) Part 440, Appendix A
ASTM C726-81 Part 440, Appendix A
ASTM C728-82 Part 440, Appendix A
ASTM C755-73 (1979) Part 440, Appendix A
ASTM C764-73 (1979) Part 440, Appendix A
ASTM C834-76 (1981) Part 440, Appendix A
ASTM C892-78 Part 440, Appendix A
ASTM C920-79 Part 440, Appendix A
ASTM C971-82 Part 440, Appendix A
ASTM D3678-81 Part 440, Appendix A
ASTM D4099-82 Part 440, Appendix A
ASTM E84 Part 440, Appendix A
ASTM E96-80 Part 440, Appendix A
American Society of Mechanical Engineers
United Engineering Center, 345 East 47th Street, New York, NY 10017
ASME CSD 1-1982 Part 440, Appendix A
ASME Boiler and Pressure Vessel Code (1980) Sections I-XI Part 440,
Appendix A
Federal Specifications, General Services Administration
Specification Section, Room 6039, 7th and D Streets, SW, Washington,
DC 20409
F.S. HH-I-1972/1 Part 440, Appendix A
F.S. HH-I-1972/2 Part 440, Appendix A
F.S. TT-P-00791 B Part 440, Appendix A
F.S. TT-S-001657 Part 440, Appendix A
F.S. TT-S-00230C Part 440, Appendix A
Fur and Hemlock Door Association
Yeon Building, Portland, Oregon 97204
FHDA 7/79, sec. 3 Part 440, Appendix A
National Electrical Manufacturers Association
2101 L St., NW., Washington, DC 20037
NEMA DC3-1978 Part 440, Appendix A
NEMA DC15-1979 Part 440, Appendix A
National Fire Protection Association
Batterymarck Park, Quincy, MA 02269
NFPA 31-1983 Part 440, Appendix A
National Woodwork Manufacturers Association
205 West Toughy Ave., Parkridge, Ill. 60068
ANSI/NWMA 1-80 Series Part 440, Appendix A
ANSI/NWMA 1.S.2-80 Part 440, Appendix A
ANSI/NWMA 1.S.3-70 Part 440, Appendix A
ANSI/NWMA 1.S.5-83 Part 440, Appendix A
Part 456 -- Residential energy conservation program
American National Standards Institute
1430 Broadway, New York, NY 10018
ANSI Z21.13-1977 Gas-Fired Low Pressure Steam Hot Water Heating
Boilers. 456.814; 456.914
ANSI Z21.20-1979 Automatic Gas Ignition Systems and Components
456.814
ANSI Z21.47-1978 Gas-fired Central Furnaces 456.814; 456.914
ANSI Z21.59-1974 Gas-fired High Pressure Steam and Hot Water Heating
Boilers 456.814
ANSI Z21.66-1978 Electrically-Operated Automatic Vent Damper Devices
for Use with Gas-fired Appliances 456.814; 456.914
ANSI Z21.67-1978 Mechanically-Actuated Automatic Vent Damper Devices
for Use with Gas-fired Appliances 456.814; 456.914
ANSI Z21.68-1978 Thermally-Actuated Automatic Vent Damper Devices for
Use with Gas-fired Appliances 456.814; 456.914
ANSI Z91.2-1976 Performance Requirements for Automatic Pressure Oil
Burners of the Mechanical Draft Type 456.814; 456.913
ANSI Z96.1-1978/UL 727 Oil-fired Central Furnaces 456.814
ANSI Z96.2-1974/UL 296 Oil Burners 456.814
ANSI Z96.3-1975/UL 726 Oil-fired Boiler Assemblies 456.814
ANSI/AAMA 1002.9-1977 Voluntary Specification for Aluminum
Combination Storm Windows for External Applications 456.813
ANSI/AAMA 1102.7-1977 Voluntary Specifications for Aluminum Storm
Doors 456.813
ANSI/ASTM B 152-79 Standard Specification for Copper Sheet, Strip,
Plate, and Rolled Bar 456.810
ANSI/ASTM B 446-75 Standard Specification for
Nickel-Chromium-Molybdenum-Columbium Alloy (UNSO6625) Rod and Bar
456.810
ANSI/ASTM D 2156-65 (1975) Method of Tests for Smoke Density in the
Flue Gases from Distillate Fuels 456.913
ANSI/NWMA I.S. 2-73 Industry Standard for Wood Windows 456.813
ANSI/NWMA I.S. 5-73 Ponderosa Pine Doors 456.813
American Society for Testing and Materials
1916 Race St., Philadelphia, PA 19103
ASTM C 177-76 Standard Test Method for Steady State Thermal
Transmission Properties by Means of the Guarded Hot Plate 456.810
ASTM C 236-66 (1971) Standard Test Method for Thermal Conductance and
Transmittance of Built-up Sections by Means of the Guarded Hot Box
456.810
ASTM C 272-53 Test for Water Absorption of Core Materials for
Structural Sandwich Constructions 456.907
ASTM C 355-64 Tests for Water Vapor Transmission of Thick Materials
456.907
ASTM C 516-75 Standard Specification for Vermiculite Loose Fill
456.806
ASTM C 518-76 Standard Test Method for Steady State Thermal
Transmission Properties by the Means of Heat Flow Meter 456.810
ASTM C 520-65 (1975) Standard Method for Density of Granular
Loose-fill Insulation 456.806; 456.807
ASTM C 570-72 Specification for Oil and Resin Based Caulking Compound
for Building Construction 456.812
ASTM C 578-69 Standard Specification for Preformed, Block-Type
Cellular Polystyrene Thermal Insulation 456.808
ASTM C 755-73 Standard Recommended Practice for Selection for Vapor
Barriers for Thermal Insulation 456.903
ASTM C 790-74 Standard Recommended Practices for Use of Latex Sealing
Compounds 456.916
ASTM C 797-75 Standard Recommended Practices and Terminology for Use
of Oil- and Resin-Based Putty and Glazing Compounds 456.916
ASTM C 804-75 Standard Recommended Practices for Use of Solvent
Release Type Sealants 456.916
ASTM C 834-76 Specification for Latex Sealing Compounds 456.812
ASTM D 257-78 Test for DC resistance or Conductance of Insulating
Materials 456.810
ASTM D 1622-63 (1975) Standard Method of Test for Apparent Density of
Rigid Cellular Plastics 456.810
ASTM E 84-79B Standard Test Method for Surface Burning
Characteristics of Building Materials 456.808; 456.809; 456.810;
456.812
ASTM E 96-66 (1972) Standard Test Method for Water Vapor Transmission
of Materials in Sheet Form 456.805
ASTM E 119-79 Standard Methods of Fire Tests of Building Construction
and Materials 456.906; 456.907
ASTM E 136-79 Behavior of Materials in a Vertical Tube Furnace at 750
C 456.804; 456.805; 456.905; 456.906
ASTM E 283-73 Standard Test Method for Rate of Air Leakage Through
Exterior Windows, Curtain Walls and Doors 456.813
ASTM E 576-76 Standard Test Method for Dew/Frost Point of Sealed
Insulating Glass Units in Vertical Position 456.802; 456.813
ASTM E 737-80 Standard Practice for the Installation of Storm
Windows, Replacement Windows, Multi-Glazing, Storm Doors and Replacement
Doors 456.911
ASTM G 1-72 (1979) Standard Recommended Practice for Preparing,
Cleaning, and Evaluating Corrosion Test Speciments 456.810
Building Officials and Code Administrators, International Inc.
17926 S. Halsted St., Homewood, IL 60430
BOCA Research Report No. 72-23 456.813
Commerce Department, National Bureau of Standards
Washington, DC 20234
NBS/PS 26-70 Rigid Polyvinyl-chloride Profile Extrusions 456.813
Environmental Protection Agency
Cincinnati, OH 45268
EPA Report No. 600/2-75-069a Guidlines for Residential Oil Burner
Adjustments 456.913
Federal Specifications:
Naval Publication and Forms Center, 5801 Tabor Ave., Philadelphia, PA
19120
HH-I-515D (6/78) Insulation, Thermal (loose-fill for Pneumatic or
Poured Application): Cellulosic or Wood Fiber 456.803; 456.804;
456.805
HH-I-524B (11/72 -- Interim Amendment, 1/76) Insulation, Board,
Thermal (Polystyrene) 456.808
HH-I-530A (1971 and Interim Amendment 3, 5/76) Insulation, Board,
Thermal (Polyurethane and Polyiscocynurate) 456.809
HH-I-558B (1971 and Interim Amendment 3, 5/76) Insulation Blocks,
Boards, Blankets, Felts, Sleeving, and Pipe Fitting Coverings 456.812
HH-I-573B (1968 and Interim Amendment, 1976) Insulation Thermal,
(Flexible Unicellular Sheet and Pipe Covering) 456.812
HH-I-574B (1974 and Interim Amendment 1, 9/76) Insulation, Thermal
(Perlite) 456.807
TT-S-00227E (1969 and Amendment 3, 10/70) Sealing Compound,
Elastomeric Type, Multi-Component (for Caulking, Sealing, and Glazing in
Buildings and Other Structures) 456.812
TT-S-001657 (COM-NBS) (1970) Sealing Compound, Single Component Butyl
Rubber Base, Solvent Release Type (for Buildings and Other Types of
Construction) 456.812
TT-S-00230C (COM-NBS) (1970 and Amendment 2, 10/70) Sealing Compound,
Elastomeric Type, Single-Component, (for Caulking, Sealing, and Glazing
in Buildings and Other Structures) 456.812
Housing and Urban Development Department
Office of Technical and Credit Standards, Room 6156, 451 Seventh St.,
SW., Washington, DC 20410
HUD Intermediate MPS Supplement 4930.2-1977 Solar Heating and
Domestic Hot Water Systems 456.702; 456.703; 456.704
Use of Materials Bulletin No. 39 (Sept. 15, 1964) Labels of
Independent Programs for Certifying Aluminum Windows and Sliding Glass
Doors 456.813
Use of Material Bulletin No. 59a (July 16, 1974) Labels Identifying
Independent Certification of Wood Windows 456.813
National Fire Protection Administration
470 Atlantic Ave., Boston, MA 02210
NFPA-31-1978 1978-National Fire Code, Standard for the Installation
of Oil and Burning Equipment 456.905; 456.906; 456.907; 456.909;
456.913
NFPA-54/ANSI Z223.1-1-1974 National Fuel Gas Code, Part I,
Installation of Gas Piping and Gas Equipment on Non-Industrial Premises
456.905; 456.906; 456.907; 456.909; 456.914
NFPA-70-1978 National Electric Code, 1978 456.914; 456.705
NFPA-211-1977 National Fire Code Standard for Chimneys, Fireplaces,
and Vents 456.905; 456.906; 456.907; 456.909; 456.912
Sandia Laboratory
Environmental Research Division-5333, Albuquerque, NM 87185
SAND 77-1375-1978 Sandia Laboratories Report, Performance Evaluation
of Wind Energy Conversion Systems Using the Method of Bins 456.705
Underwriters Laboratories Inc.
Publication Stock, 333 Pfingsten Rd., Northbrook, IL 60062
UL 559, 3rd Ed.-1975, Amendments through 1978 Standard for Heat Pumps
456.814
Part 474 Electronic and Hybrid Vehicle research, development, and
demonstration program; equivalent petroleum based fuel economy
calculation
Society of Automotive Engineers
400 Commonwealth Dr., Warrendale, PA 15096
SAE J227a, as revised Feb. 1976, Electric Vehicle Test Procedure
474.3
Part 475 Electric and hybrid vehicle research, development, and
demonstration project
Society of Automotive Engineers
400 Commonwealth Dr., Warrendale, PA 15096
SAE J227a, as revised Feb. 1976, Electric Vehicle Test Procedure
475.3; 475.10; 475.11
Chap.
10 CFR 490.64 Table of CFR Titles and Chapters
10 CFR 490.64 Title 1 -- General Provisions
I Administrative Committee of the Federal Register (Parts 1 -- 49)
II Office of the Federal Register (Parts 50 -- 299)
III Administrative Conference of the United States (Parts 300 -- 399)
IV Miscellaneous Agencies (Parts 400 -- 500)
10 CFR 490.64 Title 2 -- (Reserved)
10 CFR 490.64 Title 3 -- The President
I Executive Office of the President (Parts 100 -- 199)
10 CFR 490.64 Title 4 -- Accounts
I General Accounting Office (Parts 1 -- 99)
II Federal Claims Collection Standards (General Accounting Office --
Department of Justice) (Parts 100 -- 299)
III General Accounting Office (CASB) (Parts 300 -- 499)
10 CFR 490.64 Title 5 -- Administrative Personnel
I Office of Personnel Management (Parts 1 -- 1199)
II Merit Systems Protection Board (Parts 1200 -- 1299)
III Office of Management and Budget (Parts 1300 -- 1399)
IV Advisory Committee on Federal Pay (Parts 1400 -- 1499)
V The International Organizations Employees Loyalty Board (Parts 1500
-- 1599)
VI Federal Retirement Thrift Investment Board (Parts 1600 -- 1699)
VII Advisory Commission on Intergovernmental Relations (Parts 1700 --
1799)
VIII Office of Special Council (Parts 1800 -- 1899)
IX Appalachian Regional Commission (Parts 1900 -- 1999)
XI United States Soldiers' and Airmen's Home (Parts 2100 -- 2199)
XIV Federal Labor Relations Authority, General Counsel of the Federal
Labor Relations Authority and Federal Service Impasses Panel (Parts 2400
-- 2499)
XV Office of Administration, Executive Office of the President (Parts
2500 -- 2599)
XVI Office of Government Ethics (Parts 2600 -- 2699)
10 CFR 490.64 Title 6 -- (Reserved)
10 CFR 490.64 Title 7 -- Agriculture
Subtitle A -- Office of the Secretary of Agriculture (Parts 0 -- 26)
Subtitle B -- Regulations of the Department of Agriculture
I Agricultural Marketing Service (Standards, Inspections, Marketing
Practices), Department of Agriculture (Parts 27 -- 209)
II Food and Nutrition Service, Department of Agriculture (Parts 210
-- 299)
III Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 300 -- 399)
IV Federal Crop Insurance Corporation, Department of Agriculture
(Parts 400 -- 499)
V Agricultural Research Service, Department of Agriculture (Parts 500
-- 599)
VI Soil Conservation Service, Department of Agriculture (Parts 600 --
699)
VII Agricultural Stabilization and Conservation Service (Agricultural
Adjustment), Department of Agriculture (Parts 700 -- 799)
VIII Federal Grain Inspection Service, Department of Agriculture
(Parts 800 -- 899)
IX Agricultural Marketing Service (Marketing Agreements and Orders;
Fruits, Vegetables, Nuts), Department of Agriculture (Parts 900 -- 999)
X Agricultural Marketing Service (Marketing Agreements and Orders;
Milk), Department of Agriculture (Parts 1000 -- 1199)
XI Agricultural Marketing Service (Marketing Agreements and Orders;
Miscellaneous Commodities), Department of Agriculture (Parts 1200 --
1299)
XIV Commodity Credit Corporation, Department of Agriculture (Parts
1400 -- 1499)
XV Foreign Agricultural Service, Department of Agriculture (Parts
1500 -- 1599)
XVI Rural Telephone Bank, Department of Agriculture (Parts 1600 --
1699)
XVII Rural Electrification Administration, Department of Agriculture
(Parts 1700 -- 1799)
XVIII Farmers Home Administration, Department of Agriculture (Parts
1800 -- 2099)
XXI Foreign Economic Development Service, Department of Agriculture
(Parts 2100 -- 2199)
XXII Office of International Cooperation and Development, Department
of Agriculture (Parts 2200 -- 2299)
XXV Office of the General Sales Manager, Department of Agriculture
(Parts 2500 -- 2599)
XXVI Office of Inspector General, Department of Agriculture (Parts
2600 -- 2699)
XXVII Office of Information Resources Management, Department of
Agriculture (Parts 2700 -- 2799)
XXVIII Office of Operations, Department of Agriculture (Parts 2800 --
2899)
XXIX Office of Energy, Department of Agriculture (Parts 2900 -- 2999)
XXX Office of Finance and Management, Department of Agriculture
(Parts 3000 -- 3099)
XXXI Office of Environmental Quality, Department of Agriculture
(Parts 3100 -- 3199)
XXXII Office of Grants and Program Systems, Department of Agriculture
(Parts 3200 -- 3299)
XXXIII Office of Transportation, Department of Agriculture (Parts
3300 -- 3399)
XXXIV Cooperative State Research Service, Department of Agriculture
(Parts 3400 -- 3499)
XXXVI National Agricultural Statistics Service, Department of
Agriculture (Parts 3600 -- 3699)
XXXVII Economic Research Service, Department of Agriculture (Parts
3700 -- 3799)
XXXVIII World Agricultural Outlook Board, Department of Agriculture
(Parts 3800 -- 3899)
XXXIX Economic Analysis Staff, Department of Agriculture (Parts 3900
-- 3999)
XL Economics Management Staff, Department of Agriculture (Parts 4000
-- 4099)
XLI National Agricultural Library, Department of Agriculture (Part
4100)
10 CFR 490.64 Title 8 -- Aliens and Nationality
I Immigration and Naturalization Service, Department of Justice
(Parts 1 -- 499)
10 CFR 490.64 Title 9 -- Animals and Animal Products
I Animal and Plant Health Inspection Service, Department of
Agriculture (Parts 1 -- 199)
II Packers and Stockyards Administration, Department of Agriculture
(Parts 200 -- 299)
III Food Safety and Inspection Service, Meat and Poultry Inspection,
Department of Agriculture (Parts 300 -- 399)
10 CFR 490.64 Title 10 -- Energy
I Nuclear Regulatory Commission (Parts 0 -- 199)
II Department of Energy (Parts 200 -- 699)
III Department of Energy (Parts 700 -- 999)
X Department of Energy (General Provisions) (Parts 1000 -- 1099)
XV Office of the Federal Inspector for the Alaska Natural Gas
Transportation System (Parts 1500 -- 1599)
XVII Defense Nuclear Facilities Safety Board (Parts 1700 -- 1799)
10 CFR 490.64 Title 11 -- Federal Elections
I Federal Election Commission (Parts 1 -- 9099)
10 CFR 490.64 Title 12 -- Banks and Banking
I Comptroller of the Currency, Department of the Treasury (Parts 1 --
199)
II Federal Reserve System (Parts 200 -- 299)
III Federal Deposit Insurance Corporation (Parts 300 -- 399)
IV Export-Import Bank of the United States (Parts 400 -- 499)
V Office of Thrift Supervision, Department of The Treasury (Parts 500
-- 599)
VI Farm Credit Administration (Parts 600 -- 699)
VII National Credit Union Administration (Parts 700 -- 799)
VIII Federal Financing Bank (Parts 800 -- 899)
IX Federal Housing Finance Board (Parts 900 -- 999)
XI Federal Financial Institutions Examination Council (Parts 1100 --
1199)
XIII Farm Credit System Assistance Board (Parts 1300 -- 1399)
XIV Farm Credit System Insurance Corporation (Parts 1400 -- 1499)
XV Oversight Board (Parts 1500 -- 1599)
XVI Resolution Trust Corporation (Parts 1600 -- 1699)
10 CFR 490.64 Title 13 -- Business Credit and Assistance
I Small Business Administration (Parts 1 -- 199)
III Economic Development Administration, Department of Commerce
(Parts 300 -- 399)
10 CFR 490.64 Title 14 -- Aeronautics and Space
I Federal Aviation Administration, Department of Transportation
(Parts 1 -- 199)
II Office of the Secretary, Department of Transportation (Aviation
Proceedings) (Parts 200 -- 399)
III Office of Commercial Space Transportation, Department of
Transportation (Parts 400 -- 499)
V National Aeronautics and Space Administration (Parts 1200 -- 1299)
10 CFR 490.64 Title 15 -- Commerce and Foreign Trade
Subtitle A -- Office of the Secretary of Commerce (Parts 0 -- 29)
Subtitle B -- Regulations Relating to Commerce and Foreign Trade
I Bureau of the Census, Department of Commerce (Parts 30 -- 199)
II National Institute of Standards and Technology, Department of
Commerce (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
IV Foreign-Trade Zones Board (Parts 400 -- 499)
VII Bureau of Export Administration, Department of Commerce (Parts
700 -- 799)
VIII Bureau of Economic Analysis, Department of Commerce (Parts 800
-- 899)
IX National Oceanic and Atmospheric Administration, Department of
Commerce (Parts 900 -- 999)
XI Technology Administration, Department of Commerce (Parts 1100 --
1199)
XII United States Travel and Tourism Administration, Department of
Commerce (Parts 1200 -- 1299)
XIII East-West Foreign Trade Board (Parts 1300 -- 1399)
XIV Minority Business Development Agency (Parts 1400 -- 1499)
Subtitle C -- Regulations Relating to Foreign Trade Agreements
XX Office of the United States Trade Representative (Parts 2000 --
2099)
Subtitle D -- Regulations Relating to Telecommunications and
Information
XXIII National Telecommunications and Information Administration,
Department of Commerce (Parts 2300 -- 2399)
10 CFR 490.64 Title 16 -- Commercial Practices
I Federal Trade Commission (Parts 0 -- 999)
II Consumer Product Safety Commission (Parts 1000 -- 1799)
10 CFR 490.64 Title 17 -- Commodity and Securities Exchanges
I Commodity Futures Trading Commission (Parts 1 -- 199)
II Securities and Exchange Commission (Parts 200 -- 399)
IV Department of the Treasury (Parts 400 -- 499)
10 CFR 490.64 Title 18 -- Conservation of Power and Water Resources
I Federal Energy Regulatory Commission, Department of Energy (Parts 1
-- 399)
III Delaware River Basin Commission (Parts 400 -- 499)
VI Water Resources Council (Parts 700 -- 799)
VIII Susquehanna River Basin Commission (Parts 800 -- 899)
XIII Tennessee Valley Authority (Parts 1300 -- 1399)
10 CFR 490.64 Title 19 -- Customs Duties
I United States Customs Service, Department of the Treasury (Parts 1
-- 199)
II United States International Trade Commission (Parts 200 -- 299)
III International Trade Administration, Department of Commerce (Parts
300 -- 399)
10 CFR 490.64 Title 20 -- Employees' Benefits
I Office of Workers' Compensation Programs, Department of Labor
(Parts 1 -- 199)
II Railroad Retirement Board (Parts 200 -- 399)
III Social Security Administration, Department of Health and Human
Services (Parts 400 -- 499)
IV Employees' Compensation Appeals Board, Department of Labor (Parts
500 -- 599)
V Employment and Training Administration, Department of Labor (Parts
600 -- 699)
VI Employment Standards Administration, Department of Labor (Parts
700 -- 799)
VII Benefits Review Board, Department of Labor (Parts 800 -- 899)
VIII Joint Board for the Enrollment of Actuaries (Parts 900 -- 999)
IX Office of the Assistant Secretary for Veterans' Employment and
Training, Department of Labor (Parts 1000 -- 1099)
10 CFR 490.64 Title 21 -- Food and Drugs
I Food and Drug Administration, Department of Health and Human
Services (Parts 1 -- 1299)
II Drug Enforcement Administration, Department of Justice (Parts 1300
-- 1399)
10 CFR 490.64 Title 22 -- Foreign Relations
I Department of State (Parts 1 -- 199)
II Agency for International Development, International Development
Cooperation Agency (Parts 200 -- 299)
III Peace Corps (Parts 300 -- 399)
IV International Joint Commission, United States and Canada (Parts
400 -- 499)
V United States Information Agency (Parts 500 -- 599)
VI United States Arms Control and Disarmament Agency (Parts 600 --
699)
VII Overseas Private Investment Corporation, International
Development Cooperation Agency (Parts 700 -- 799)
IX Foreign Service Grievance Board Regulations (Parts 900 -- 999)
X Inter-American Foundation (Parts 1000 -- 1099)
XI International Boundary and Water Commission, United States and
Mexico, United States Section (Parts 1100 -- 1199)
XII United States International Development Cooperation Agency (Parts
1200 -- 1299)
XIII Board for International Broadcasting (Parts 1300 -- 1399)
XIV Foreign Service Labor Relations Board; Federal Labor Relations
Authority; General Counsel of the Federal Labor Relations Authority;
and the Foreign Service Impasse Disputes Panel (Parts 1400 -- 1499)
XV African Development Foundation (Parts 1500 -- 1599)
XVI Japan-United States Friendship Commission (Parts 1600 -- 1699)
10 CFR 490.64 Title 23 -- Highways
I Federal Highway Administration, Department of Transportation (Parts
1 -- 999)
II National Highway Traffic Safety Administration and Federal Highway
Administration, Department of Transportation (Parts 1200 -- 1299)
III National Highway Traffic Safety Administration, Department of
Transportation (Parts 1300 -- 1399)
10 CFR 490.64 Title 24 -- Housing and Urban Development
Subtitle A -- Office of the Secretary, Department of Housing and
Urban Development (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Housing and Urban Development
I Office of Assistant Secretary for Equal Opportunity, Department of
Housing and Urban Development (Parts 100 -- 199)
II Office of Assistant Secretary for Housing-Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 200 --
299)
III Government National Mortgage Association, Department of Housing
and Urban Development (Parts 300 -- 399)
V Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 500 --
599)
VI Office of Assistant Secretary for Community Planning and
Development, Department of Housing and Urban Development (Parts 600 --
699)
VII Office of the Secretary, Department of Housing and Urban
Development (Section 8 Housing Assistance Programs and Public and Indian
Housing Programs) (Parts 700 -- 799)
VIII Office of the Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Section 8
Housing Assistance Programs and Section 202 Direct Loan Program) (Parts
800 -- 899)
IX Office of Assistant Secretary for Public and Indian Housing,
Department of Housing and Urban Development (Parts 900 -- 999)
X Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Interstate
Land Sales Registration Program) (Parts 1700 -- 1799)
XI Solar Energy and Energy Conservation Bank, Department of Housing
and Urban Development (Parts 1800 -- 1899)
XII Office of Inspector General, Department of Housing and Urban
Development (Parts 2000 -- 2099)
XV Mortgage Insurance and Loan Programs under the Emergency
Homeowners' Relief Act, Department of Housing and Urban Development
(Parts 2700 -- 2799)
XX Office of Assistant Secretary for Housing -- Federal Housing
Commissioner, Department of Housing and Urban Development (Parts 3200 --
3699)
XXV Neighborhood Reinvestment Corporation (Parts 4100 -- 4199)
10 CFR 490.64 Title 25 -- Indians
I Bureau of Indian Affairs, Department of the Interior (Parts 1 --
299)
II Indian Arts and Crafts Board, Department of the Interior (Parts
300 -- 399)
III National Indian Gaming Commission (Parts 500 -- 599)
IV Office of Navajo and Hopi Indian Relocation (Parts 700 -- 799)
10 CFR 490.64 Title 26 -- Internal Revenue
I Internal Revenue Service, Department of the Treasury (Parts 1 --
799)
10 CFR 490.64 Title 27 -- Alcohol, Tobacco Products and Firearms
I Bureau of Alcohol, Tobacco and Firearms, Department of the Treasury
(Parts 1 -- 299)
10 CFR 490.64 Title 28 -- Judicial Administration
I Department of Justice (Parts 0 -- 199)
III Federal Prison Industries, Inc., Department of Justice (Parts 300
-- 399)
V Bureau of Prisons, Department of Justice (Parts 500 -- 599)
VI Offices of Independent Counsel, Department of Justice (Parts 600
-- 699)
VII Office of Independent Counsel (Parts 700 -- 799)
10 CFR 490.64 Title 29 -- Labor
Subtitle A -- Office of the Secretary of Labor (Parts 0 -- 99)
Subtitle B -- Regulations Relating to Labor
I National Labor Relations Board (Parts 100 -- 199)
II Bureau of Labor-Management Relations and Cooperative Programs,
Department of Labor (Parts 200 -- 299)
III National Railroad Adjustment Board (Parts 300 -- 399)
IV Office of Labor-Management Standards, Department of Labor (Parts
400 -- 499)
V Wage and Hour Division, Department of Labor (Parts 500 -- 899)
IX Construction Industry Collective Bargaining Commission (Parts 900
-- 999)
X National Mediation Board (Parts 1200-1299)
XII Federal Mediation and Conciliation Service (Parts 1400-1499)
XIV Equal Employment Opportunity Commission (Parts 1600-1699)
XVII Occupational Safety and Health Administration, Department of
Labor (Parts 1900 -- 1999)
XX Occupational Safety and Health Review Commission (Parts 2200 --
2499)
XXV Pension and Welfare Benefits Administration, Department of Labor
(Parts 2500 -- 2599)
XXVI Pension Benefit Guaranty Corporation (Parts 2600 -- 2699)
XXVII Federal Mine Safety and Health Review Commission (Parts 2700 --
2799)
10 CFR 490.64 Title 30 -- Mineral Resources
I Mine Safety and Health Administration, Department of Labor (Parts 1
-- 199)
II Minerals Management Service, Department of the Interior (Parts 200
-- 299)
III Board of Surface Mining and Reclamation Appeals, Department of
the Interior (Parts 300 -- 399)
IV Geological Survey, Department of the Interior (Parts 400 -- 499)
VI Bureau of Mines, Department of the Interior (Parts 600 -- 699)
VII Office of Surface Mining Reclamation and Enforcement, Department
of the Interior (Parts 700 -- 999)
10 CFR 490.64 Title 31 -- Money and Finance: Treasury
Subtitle A -- Office of the Secretary of the Treasury (Parts 0 -- 50)
Subtitle B -- Regulations Relating to Money and Finance
I Monetary Offices, Department of the Treasury (Parts 51 -- 199)
II Fiscal Service, Department of the Treasury (Parts 200 -- 399)
IV Secret Service, Department of the Treasury (Parts 400 -- 499)
V Office of Foreign Assets Control, Department of the Treasury (Parts
500 -- 599)
VI Bureau of Engraving and Printing, Department of the Treasury
(Parts 600 -- 699)
VII Federal Law Enforcement Training Center, Department of the
Treasury (Parts 700 -- 799)
VIII Office of International Investment, Department of the Treasury
(Parts 800 -- 899)
10 CFR 490.64 Title 32 -- National Defense
Subtitle A -- Department of Defense
I Office of the Secretary of Defense (Parts 1 -- 399)
V Department of the Army (Parts 400 -- 699)
VI Department of the Navy (Parts 700 -- 799)
VII Department of the Air Force (Parts 800 -- 1099)
Subtitle B -- Other Regulations Relating to National Defense
XII Defense Logistics Agency (Parts 1200-1299)
XVI Selective Service System (Parts 1600-1699)
XIX Central Intelligence Agency (Parts 1900 -- 1999)
XX Information Security Oversight Office (Parts 2000 -- 2099)
XXI National Security Council (Parts 2100 -- 2199)
XXIV Office of Science and Technology Policy (Parts 2400 -- 2499)
XXVII Office for Micronesian Status Negotiations (Parts 2700 -- 2799)
XXVIII Office of the Vice President of the United States (Parts 2800
-- 2899)
10 CFR 490.64 Title 33 -- Navigation and Navigable Waters
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Corps of Engineers, Department of the Army (Parts 200 -- 399)
IV Saint Lawrence Seaway Development Corporation, Department of
Transportation (Parts 400 -- 499)
10 CFR 490.64 Title 34 -- Education
Subtitle A -- Office of the Secretary, Department of Education (Parts
1 -- 99)
Subtitle B -- Regulations of the Offices of the Department of
Education
I Office for Civil Rights, Department of Education (Parts 100 -- 199)
II Office of Elementary and Secondary Education, Department of
Education (Parts 200 -- 299)
III Office of Special Education and Rehabilitative Services,
Department of Education (Parts 300 -- 399)
IV Office of Vocational and Adult Education, Department of Education
(Parts 400 -- 499)
V Office of Bilingual Education and Minority Languages Affairs,
Department of Education (Parts 500 -- 599)
VI Office of Postsecondary Education, Department of Education (Parts
600 -- 699)
VII Office of Educational Research and Improvement, Department of
Education (Parts 700 -- 799)
10 CFR 490.64 Title 35 -- Panama Canal
I Panama Canal Regulations (Parts 1 -- 299)
10 CFR 490.64 Title 36 -- Parks, Forests, and Public Property
I National Park Service, Department of the Interior (Parts 1 -- 199)
II Forest Service, Department of Agriculture (Parts 200 -- 299)
III Corps of Engineers, Department of the Army (Parts 300 -- 399)
IV American Battle Monuments Commission (Parts 400 -- 499)
V Smithsonian Institution (Parts 500 -- 599)
VII Library of Congress (Parts 700 -- 799)
VIII Advisory Council on Historic Preservation (Parts 800 -- 899)
IX Pennsylvania Avenue Development Corporation (Parts 900-999)
XI Architectural and Transportation Barriers Compliance Board (Parts
1100 -- 1199)
XII National Archives and Records Administration (Parts 1200 -- 1299)
10 CFR 490.64 Title 37 -- Patents, Trademarks, and Copyrights
I Patent and Trademark Office, Department of Commerce (Parts 1 --
199)
II Copyright Office, Library of Congress (Parts 200 -- 299)
III Copyright Royalty Tribunal (Parts 300 -- 399)
IV Assistant Secretary for Technology Policy, Department of Commerce
(Parts 400-499)
V Under Secretary for Technology, Department of Commerce (Parts 500
-- 599)
10 CFR 490.64 Title 38 -- Pensions, Bonuses, and Veterans' Relief
I Department of Veterans Affairs (Parts 0 -- 99)
10 CFR 490.64 Title 39 -- Postal Service
I United States Postal Service (Parts 1-999)
III Postal Rate Commission (Parts 3000 -- 3099)
10 CFR 490.64 Title 40 -- Protection of Environment
I Environmental Protection Agency (Parts 1 -- 799)
V Council on Environmental Quality (Parts 1500-1599)
10 CFR 490.64 Title 41 -- Public Contracts and Property Management
Subtitle B -- Other Provisions Relating to Public Contracts
50 Public Contracts, Department of Labor (Parts 50-1 -- 50-999)
51 Committee for Purchase from the Blind and Other Severely
Handicapped (Parts 51-1 -- 51-99)
60 Office of Federal Contract Compliance Programs, Equal Employment
Opportunity, Department of Labor (Parts 60-1 -- 60-999)
61 Office of the Assistant Secretary for Veterans Employment and
Training, Department of Labor (Parts 61-1 -- 61-999)
Subtitle C -- Federal Property Management Regulations System
101 Federal Property Management Regulations (Parts 101-1 -- 101-99)
105 General Services Administration (Parts 105-1 -- 105-999)
109 Department of Energy Property Management Regulations (Parts 109-1
-- 109-99)
114 Department of the Interior (Parts 114-1 -- 114-99)
115 Environmental Protection Agency (Parts 115-1 -- 115-99)
128 Department of Justice (Parts 128-1 -- 128-99)
132 Department of the Air Force (Parts 132-1 -- 132-99)
Subtitle D -- Other Provisions Relating to Property Management
(Reserved)
Subtitle E -- Federal Information Resources Management Regulations
System
201 Federal Information Resources Management Regulation (Parts 201-1
-- 201-99)
Subtitle F -- Federal Travel Regulation System
301 Travel Allowances (Parts 301-1 -- 301-99)
302 Relocation Allowances (Parts 302-1 -- 302-99)
303 Payment of Expenses Connected with the Death of Certain Employees
(Parts 303-1 -- 303-2)
304 Payment from a non-Federal source for travel expenses (Parts
304-1 -- 304-99)
10 CFR 490.64 Title 42 -- Public Health
I Public Health Service, Department of Health and Human Services
(Parts 1 -- 199)
IV Health Care Financing Administration, Department of Health and
Human Services (Parts 400 -- 499)
V Office of Inspector General-Health Care, Department of Health and
Human Services (Parts 1000 -- 1999)
10 CFR 490.64 Title 43 -- Public Lands: Interior
Subtitle A -- Office of the Secretary of the Interior (Parts 1 --
199)
Subtitle B -- Regulations Relating to Public Lands
I Bureau of Reclamation, Department of the Interior (Parts 200 --
499)
II Bureau of Land Management, Department of the Interior (Parts 1000
-- 9999)
10 CFR 490.64 Title 44 -- Emergency Management and Assistance
I Federal Emergency Management Agency (Parts 0 -- 399)
IV Department of Commerce and Department of Transportation (Parts 400
-- 499)
10 CFR 490.64 Title 45 -- Public Welfare
Subtitle A -- Department of Health and Human Services, General
Administration (Parts 1 -- 199)
Subtitle B -- Regulations Relating to Public Welfare
II Office of Family Assistance (Assistance Programs), Family Support
Administration, Department of Health and Human Services (Parts 200 --
299)
III Office of Child Support Enforcement (Child Support Enforcement
Program), Family Support Administration, Department of Health and Human
Services (Parts 300 -- 399)
IV Office of Refugee Resettlement, Family Support Administration,
Department of Health and Human Services (Parts 400 -- 499)
V Foreign Claims Settlement Commission of the United States,
Department of Justice (Parts 500 -- 599)
VI National Science Foundation (Parts 600 -- 699)
VII Commission on Civil Rights (Parts 700 -- 799)
VIII Office of Personnel Management (Parts 800 -- 899)
X Office of Community Services, Family Support Administration,
Department of Health and Human Services (Parts 1000 -- 1099)
XI National Foundation on the Arts and the Humanities (Parts 1100 --
1199)
XII ACTION (Parts 1200 -- 1299)
XIII Office of Human Development Services, Department of Health and
Human Services (Parts 1300 -- 1399)
XVI Legal Services Corporation (Parts 1600 -- 1699)
XVII National Commission on Libraries and Information Science (Parts
1700 -- 1799)
XVIII Harry S. Truman Scholarship Foundation (Parts 1800 -- 1899)
XX Commission on the Bicentennial of the United States Constitution
(Parts 2000 -- 2099)
XXI Commission on Fine Arts (Parts 2100 -- 2199)
XXII Christopher Columbus Quincentenary Jubilee Commission (2200 --
2299)
10 CFR 490.64 Title 46 -- Shipping
I Coast Guard, Department of Transportation (Parts 1 -- 199)
II Maritime Administration, Department of Transportation (Parts 200
-- 399)
III Coast Guard (Great Lakes Pilotage), Department of Transportation
(Parts 400 -- 499)
IV Federal Maritime Commission (Parts 500 -- 599)
10 CFR 490.64 Title 47 -- Telecommunication
I Federal Communications Commission (Parts 0 -- 199)
II Office of Science and Technology Policy and National Security
Council (Parts 200 -- 299)
III National Telecommunications and Information Administration,
Department of Commerce (Parts 300 -- 399)
10 CFR 490.64 Title 48 -- Federal Acquisition Regulations System
1 Federal Acquisition Regulation (Parts 1 -- 99)
2 Department of Defense (Parts 200 -- 299)
3 Department of Health and Human Services (Parts 300 -- 399)
4 Department of Agriculture (Parts 400 -- 499)
5 General Services Administration (Parts 500 -- 599)
6 Department of State (Parts 600 -- 699)
7 Agency for International Development (Parts 700 -- 799)
8 Department of Veterans Affairs (Parts 800 -- 899)
9 Department of Energy (Parts 900 -- 999)
10 Department of the Treasury (Parts 1000 -- 1099)
12 Department of Transportation (Parts 1200 -- 1299)
13 Department of Commerce (Parts 1300 -- 1399)
14 Department of the Interior (Parts 1400 -- 1499)
15 Environmental Protection Agency (Parts 1500 -- 1599)
16 Office of Personnel Management Federal Employees Health Benefits
Acquisition Regulation (Parts 1600 -- 1699)
17 Office of Personnel Management (Parts 1700 -- 1799)
18 National Aeronautics and Space Administration (Parts 1800 -- 1899)
19 United States Information Agency (Parts 1900 -- 1999)
22 Small Business Administration (Parts 2200 -- 2299)
24 Department of Housing and Urban Development (Parts 2400 -- 2499)
25 National Science Foundation (Parts 2500 -- 2599)
28 Department of Justice (Parts 2800 -- 2899)
29 Department of Labor (Parts 2900 -- 2999)
34 Department of Education Acquisition Regulation (Parts 3400 --
3499)
35 Panama Canal Commission (Parts 3500 -- 3599)
44 Federal Emergency Management Agency (Parts 4400 -- 4499)
51 Department of the Army Acquisition Regulations (Parts 5100 --
5199)
52 Department of the Navy Acquisition Regulations (Parts 5200 --
5299)
53 Department of the Air Force Federal Acquisition Regulation
Supplement (Parts 5300 -- 5399)
57 African Development Foundation (Parts 5700 -- 5799)
61 General Services Administration Board of Contract Appeals (Parts
6100 -- 6199)
63 Department of Transportation Board of Contract Appeals (Parts 6300
-- 6399)
99 Cost Accounting Standards Board, Office of Federal Procurement
Policy, Office of Management and Budget (Parts 9900-9999)
10 CFR 490.64 Title 49 -- Transportation
Subtitle A -- Office of the Secretary of Transportation (Parts 1 --
99)
Subtitle B -- Other Regulations Relating to Transportation
I Research and Special Programs Administration, Department of
Transportation (Parts 100 -- 199)
II Federal Railroad Administration, Department of Transportation
(Parts 200 -- 299)
III Federal Highway Administration, Department of Transportation
(Parts 300 -- 399)
IV Coast Guard, Department of Transportation (Parts 400 -- 499)
V National Highway Traffic Safety Administration, Department of
Transportation (Parts 500 -- 599)
VI Urban Mass Transportation Administration, Department of
Transportation (Parts 600 -- 699)
VII National Railroad Passenger Corporation (AMTRAK) (Parts 700 --
799)
VIII National Transportation Safety Board (Parts 800 -- 899)
X Interstate Commerce Commission (Parts 1000 -- 1399)
10 CFR 490.64 Title 50 -- Wildlife and Fisheries
I United States Fish and Wildlife Service, Department of the Interior
(Parts 1 -- 199)
II National Marine Fisheries Service, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 200 -- 299)
III International Regulatory Agencies (Fishing and Whaling) (Parts
300 -- 399)
IV Joint Regulations (United States Fish and Wildlife Service,
Department of the Interior and National Marine Fisheries Service,
National Oceanic and Atmospheric Administration, Department of
Commerce); Endangered Species Committee Regulations (Parts 400 -- 499)
V Marine Mammal Commission (Parts 500 -- 599)
VI Fishery Conservation and Management, National Oceanic and
Atmospheric Administration, Department of Commerce (Parts 600 -- 699)
10 CFR 490.64 CFR Index and Finding Aids Subject/Agency Index List
of Agency Prepared Indexes Parallel Tables of Statutory Authorities and
Rules Acts Requiring Publication in the Federal Register List of CFR
Titles, Chapters, Subchapters, and Parts
10 CFR 490.64 Alphabetical List of Agencies Appearing in the CFR
CFR Title, Subtitle or
Agency
Chapter
ACTION 45, XII
Administrative Committee of the Federal Register 1, I
Administrative Conference of the United States 1, III
Advisory Commission on Intergovernmental Relations 5, VII
Advisory Committee on Federal Pay 5, IV
Advisory Council on Historic Preservation 36, VIII
African Development Foundation 22, XV; 48, 57
Agency for International Development 22, II; 48, 7
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Agriculture Department
Agricultural Marketing Service 7, I, IX, X, XI
Agricultural Research Service 7, V
Agricultural Stabilization and Conservation Service 7, VII
Animal and Plant Health Inspection Service 7, III; 9, I
Commodity Credit Corporation 7, XIV
Cooperative State Research Service 7, XXXIV
Economic Analysis Staff 7, XXXIX
Economic Research Service 7, XXXVII
Economics Management Staff 7, XL
Energy, Office of 7, XXIX
Environmental Quality, Office of 7, XXXI
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 4
Federal Crop Insurance Corporation 7, IV
Federal Grain Inspection Service 7, VIII
Finance and Management, Office of 7, XXX
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Economic Development Service 7, XXI
Forest Service 36, II
General Sales Manager, Office of 7, XXV
Grants and Program Systems, Office of 7, XXXII
Information Resources Management, Office of 7, XXVII
Inspector General, Office of 7, XXVI
International Cooperation and Development Office 7, XXII
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
Operations Office 7, XXVIII
Packers and Stockyards Administration 9, II
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Secretary of Agriculture, Office of 7, Subtitle A
Soil Conservation Service 7, VI
Transportation, Office of 7, XXXIII
World Agriculture Outlook Board 7, XXXVIII
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Federal Acquisition Regulation Supplement 48, 53
Alaska Natural Gas Transportation System, Office of the Federal
Inspector 10, XV
Alcohol, Tobacco and Firearms, Bureau of 27, I
AMTRAK 49, VII
American Battle Monuments Commission 36, IV
Animal and Plant Health Inspection Service 7, III; 9, I
Appalachian Regional Commission 5, IX
Architectural and Transportation Barriers Compliance Board 36, XI
Arms Control and Disarmament Agency, U.S. 22, VI
Army Department 32, V
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 51
Assistant Secretary for Technology Policy, Department of Commerce 37,
IV
Benefits Review Board 20, VII
Bicentennial of the United States Constitution, Commission on the 45,
XX
Bilingual Education and Minority Languages Affairs, Office of 34, V
Blind and Other Severely Handicapped, Committee for Purchase from 41,
51
Board for International Broadcasting 22, XIII
Budget, Office of Management and 5, III
Census Bureau 15, I
Central Intelligence Agency 32, XIX
Child Support Enforcement, Office of 45, III
Christopher Columbus Quincentenary Jubilee Commission 45, XXII
Civil Rights Commission 45, VII
Civil Rights, Office for (Education Department) 34, I
Claims Collection Standards, Federal 4, II
Coast Guard 33, I; 46, I, III; 49, IV
Commerce Department 44, IV
Census Bureau 15, I
Assistant Secretary for Technology Policy 37, IV
Economic Affairs, Under Secretary 37, V
Economic Analysis, Bureau of 15, VIII
Economic Development Administration 13, III
Endangered Species Committee 50, IV
Export Administration Bureau 15, VII
Federal Acquisition Regulation 48, 13
Fishery Conservation and Management 50, VI
International Trade Administration 15, III; 19, III
National Institute of Standards and Technology 15, II
National Marine Fisheries Service 50, II, IV
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Telecommunications and Information Administration 15, XXIII;
47, III
Patent and Trademark Office 37, I
Productivity, Technology and Innovation, Assistant Secretary for 37,
IV
Secretary of Commerce, Office of 15, Subtitle A
Technology Administration 15, XI
Under Secretary for Technology 37, V
United States Travel and Tourism Administration 15, XII
Commercial Space Transportation, Office of, Department of
Transportation 14, III
Commission on the Bicentennial of the United States Constitution 45,
XX
Committee for Purchase from the Blind and Other Severely Handicapped
41, 51
Commodity Credit Corporation 7, XIV
Commodity Futures Trading Commission 17, I
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Community Services, Office of 45, X
Comptroller of the Currency 12, I
Construction Industry Collective Bargaining Commission 29, IX
Consumer Product Safety Commission 16, II
Cooperative State Research Service 7, XXXIV
Copyright Office 37, II
Copyright Royalty Tribunal 37, III
Cost Accounting Standards Board, Office of Federal Procurement Policy
48, 99
Council on Environmental Quality 40, V
Customs Service, United States 19, I
Defense Department 32, Subtitle A
Air Force Department 32, VII; 41, Subtitle C, Ch. 132
Army Department 32, V; 33, II; 36, III, 48, 51
Engineers, Corps of 33, II; 36, III
Federal Acquisition Regulation 48, 2
Navy Department 32, VI; 48, 52
Secretary of Defense, Office of 32, I
Defense Logistics Agency 32, XII
Defense Nuclear Facilities Safety Board 10, XVII
Delaware River Basin Commission 18, III
Drug Enforcement Administration 21, II
East-West Foreign Trade Board 15, XIII
Economic Affairs, Under Secretary (Commerce) 37, V
Economic Analysis, Bureau of 15, VIII
Economic Analysis Staff, Department of Agriculture 7, XXXIX
Economic Development Administration 13, III
Economics Management Staff 7, XL
Economic Research Service 7, XXXVII
Education, Department of
Bilingual Education and Minority Languages Affairs, Office of 34, V
Civil Rights, Office for 34, I
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Federal Acquisition Regulation 48, 34
Postsecondary Education, Office of 34, VI
Secretary of Education, Office of 34, Subtitle A
Special Education and Rehabilitative Services, Office of 34, III
Vocational and Adult Education, Office of 34, IV
Educational Research and Improvement, Office of 34, VII
Elementary and Secondary Education, Office of 34, II
Employees' Compensation Appeals Board 20, IV
Employees Loyalty Board, International Organizations 5, V
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Endangered Species Committee 50, IV
Energy, Department of 10, II, III, X; 41, 109
Federal Acquisition Regulation 48, 9
Federal Energy Regulatory Commission 18, I
Energy, Office of, Department of Agriculture 7, XXIX
Engineers, Corps of 33, II; 36, III
Engraving and Printing, Bureau of 31, VI
Environmental Protection Agency 40, I; 41, 115; 48, 15
Environmental Quality, Office of (Agriculture Department) 7, XXXI
Equal Employment Opportunity Commission 29, XIV
Equal Opportunity, Office of Assistant Secretary for 24, I
Executive Office of the President 3, I
Administration, Office of 5, XV
Export Administration Bureau 15, VII
Export-Import Bank of the United States 12, IV
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Farm Credit Administration 12, VI
Farm Credit System Assistance Board 12, XIII
Farm Credit System Insurance Corporation 12, XIV
Farmers Home Administration 7, XVIII
Federal Acquisition Regulation 48, 1
Federal Aviation Administration 14, I
Federal Claims Collection Standards 4, II
Federal Communications Commission 47, I
Federal Contract Compliance Programs, Office of 41, 60
Federal Crop Insurance Corporation 7, IV
Federal Deposit Insurance Corporation 12, III
Federal Election Commission 11, I
Federal Emergency Management Agency 44, I; 48, 44
Federal Energy Regulatory Commission 18, I
Federal Financial Institutions Examination Council 12, XI
Federal Financing Bank 12, VIII
Federal Grain Inspection Service 7, VIII
Federal Highway Administration 23, I, II; 49, III
Federal Home Loan Mortgage Corporation 1, IV
Federal Housing Finance Board 12, IX
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Inspector for the Alaska Natural Gas Transportation System,
Office of 10, XV
Federal Labor Relations Authority, and General Counsel of the Federal
Labor Relations Authority 5, XIV; 22, XIV
Federal Law Enforcement Training Center 31, VII
Federal Maritime Commission 46, IV
Federal Mediation and Conciliation Service 29, XII
Federal Mine Safety and Health Review Commission 29, XXVII
Federal Pay, Advisory Committee on 5, IV
Federal Prison Industries, Inc. 28, III
Federal Procurement Policy Office 48, 99
Federal Property Management Regulations 41, 101
Federal Property Management Regulations System 41, Subtitle C
Federal Railroad Administration 49, II
Federal Register, Administrative Committee of 1, I
Federal Register, Office of 1, II
Federal Reserve System 12, II
Federal Retirement Thrift Investment Board 5, VI
Federal Service Impasses Panel 5, XIV
Federal Trade Commission 16, I
Federal Travel Regulation System 41, Subtitle F
Finance and Management, Department of Agriculture 7, XXX
Fine Arts Commission 45, XXI
Fiscal Service 31, II
Fish and Wildlife Service, United States 50, I, IV
Fishery Conservation and Management 50, VI
Fishing and Whaling, International Regulatory Agencies 50, III
Food and Drug Administration 21, I
Food and Nutrition Service 7, II
Food Safety and Inspection Service 9, III
Foreign Agricultural Service 7, XV
Foreign Assets Control, Office of 31, V
Foreign Claims Settlement Commission of United States 45, V
Foreign Economic Development Service 7, XXI
Foreign Service Grievance Board 22, IX
Foreign Service Impasse Disputes Panel 22, XIV
Foreign Service Labor Relations Board 22, XIV
Foreign-Trade Zones Board 15, IV
Forest Service 36, II
General Accounting Office 4, I, II, III
General Sales Manager, Office of 7, XXV
General Services Administration
Contract Appeals Board 48, 61
Federal Acquisition Regulation 48, 5
Federal Information Resources Management Regulations 41, Subtitle E,
Ch. 201
Federal Property Management Regulations System 41, 101, 105
Federal Travel Regulation System 41, Subtitle F
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Reduction in Meeting and Training Allowance Payments 41, 304
Relocation Allowances 41, 302
Travel Allowances 41, 301
Geological Survey 30, IV
Government Ethics, Office of 5, XVI
Government National Mortgage Association 24, III
Grants and Program Systems, Office of 7, XXXII
Great Lakes Pilotage 46, III
Harry S. Truman Scholarship Foundation 45, XVIII
Health and Human Services, Department of 45, Subtitle A
Child Support Enforcement, Office of 45, III
Community Services, Office of 45, X
Family Assistance, Office of 45, II
Family Support Administration 45, II, III, IV, X
Federal Acquisition Regulation 48, 3
Food and Drug Administration 21, I
Health Care Financing Administration 42, IV
Human Development Services Office 45, XIII
Inspector General, Office of 42, V
Public Health Service 42, I
Refugee Resettlement, Office of 45, IV
Social Security Administration 20, III; 45, IV
Health Care Financing Administration 42, IV
Housing and Urban Development, Department of
Community Planning and Development, Office of Assistant Secretary for
24, V, VI
Equal Opportunity, Office of Assistant Secretary for 24, I
Federal Acquisition Regulation 48, 24
Government National Mortgage Association 24, III
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Inspector General, Office of 24, XII
Mortgage Insurance and Loan Programs Under Emergency Homeowners'
Relief Act 24, XV
Public and Indian Housing, Office of Assistant Secretary for 24, IX
Secretary, Office of 24, Subtitle B, VII
Solar Energy and Energy Conservation Bank 24, XI
Housing -- Federal Housing Commissioner, Office of Assistant
Secretary for 24, II, VIII, X, XX
Human Development Services Office 45, XIII
Immigration and Naturalization Service 8, I
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Information Agency, United States 22, V; 48, 19
Information Resources Management, Office of, Agriculture Department
7, XXVII
Information Security Oversight Office 32, XX
Inspector General, Office of, Agriculture Department 7, XXVI
Inspector General, Office of, Health and Human Services Department
42, V
Inspector General, Office of, Housing and Urban Development
Department 24, XII
Inter-American Foundation 22, X
Intergovernmental Relations, Advisory Commission on 5, VII
Interior Department
Endangered Species Committee 50, IV
Federal Acquisition Regulation 48, 14
Federal Property Management Regulations System 41, 114
Fish and Wildlife Service, United States 50, I, IV
Geological Survey 30, IV
Indian Affairs, Bureau of 25, I
Indian Arts and Crafts Board 25, II
Land Management Bureau 43, II
Minerals Management Service 30, II
Mines, Bureau of 30, VI
National Park Service 36, I
Reclamation Bureau 43, I
Secretary of the Interior, Office of 43, Subtitle A
Surface Mining and Reclamation Appeals, Board of 30, III
Surface Mining Reclamation and Enforcement, Office of 30, VII
United States Fish and Wildlife Service 50, I, IV
Internal Revenue Service 26, I
International Boundary and Water Commission, United States and Mexico
22, XI
International Cooperation and Development Office, Department of
Agriculture 7, XXII
International Development, Agency for 22, II
International Development Cooperation Agency 22, XII
International Development, Agency for 22, II
Overseas Private Investment Corporation 22, VII
International Joint Commission, United States and Canada 22, IV
International Organizations Employees Loyalty Board 5, V
International Regulatory Agencies (Fishing and Whaling) 50, III
International Trade Administration 15, III; 19, III
International Trade Commission, United States 19, II
Interstate Commerce Commission 49, X
Japan-United States Friendship Commission 22, XVI
Joint Board for the Enrollment of Actuaries 20, VIII
Justice Department 28, I; 41, 128
Drug Enforcement Administration 21, II
Federal Acquisition Regulation 48, 28
Federal Claims Collection Standards 4, II
Federal Prison Industries, Inc. 28, III
Foreign Claims Settlement Commission of the United States 45, V
Immigration and Naturalization Service 8, I
Offices of Independent Counsel 28, VI
Prisons, Bureau of 28, V
Labor Department
Benefits Review Board 20, VII
Employees' Compensation Appeals Board 20, IV
Employment and Training Administration 20, V
Employment Standards Administration 20, VI
Federal Acquisition Regulation 48, 29
Federal Contract Compliance Programs, Office of 41, 60
Federal Procurement Regulations System 41, 50
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Mine Safety and Health Administration 30, I
Occupational Safety and Health Administration 29, XVII
Pension and Welfare Benefits Administration 29, XXV
Public Contracts 41, 50
Secretary of Labor, Office of 29, Subtitle A
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Wage and Hour Division 29, V
Workers' Compensation Programs, Office of 20, I
Labor-Management Relations and Cooperative Programs, Bureau of 29, II
Labor-Management Standards, Office of 29, IV
Land Management, Bureau of 43, II
Legal Services Corporation 45, XVI
Library of Congress 36, VII
Copyright Office 37, II
Management and Budget, Office of 5, III; 48, 99
Marine Mammal Commission 50, V
Maritime Administration 46, II
Merit Systems Protection Board 5, II
Micronesian Status Negotiations, Office for 32, XXVII
Mine Safety and Health Administration 30, I
Minerals Management Service 30, II
Mines, Bureau of 30, VI
Minority Business Development Agency 15, XIV
Miscellaneous Agencies 1, IV
Monetary Offices 31, I
Mortgage Insurance and Loan Programs Under the Emergency Homeowners'
Relief Act, Department of Housing and Urban Development 24, XV
National Aeronautics and Space Administration 14, V; 48, 18
National Agricultural Library 7, XLI
National Agricultural Statistics Service 7, XXXVI
National Archives and Records Administration 36, XII
National Bureau of Standards 15, II
National Capital Planning Commission 1, IV
National Commission for Employment Policy 1, IV
National Commission on Libraries and Information Science 45, XVII
National Credit Union Administration 12, VII
National Foundation on the Arts and the Humanities 45, XI
National Highway Traffic Safety Administration 23, II, III; 49, V
National Indian Gaming Commission 25, III
National Institute of Standards and Technology 15, II
National Labor Relations Board 29, I
National Marine Fisheries Service 50, II, IV
National Mediation Board 29, X
National Oceanic and Atmospheric Administration 15, IX; 50, II, III,
IV, VI
National Park Service 36, I
National Railroad Adjustment Board 29, III
National Railroad Passenger Corporation (AMTRAK) 49, VII
National Science Foundation 45, VI; 48, 25
National Security Council 32, XXI
National Security Council and Office of Science and Technology Policy
47, II
National Telecommunications and Information Administration 15, XXIII;
47, III
National Transportation Safety Board 49, VIII
Office of Navajo and Hopi Indian Relocation 25, IV
Navy Department 32, VI; 48, 52
Neighborhood Reinvestment Corporation 24, XXV
Nuclear Regulatory Commission 10, I
Occupational Safety and Health Administration 29, XVII
Occupational Safety and Health Review Commission 29, XX
Office of Independent Counsel 28, VII
Offices of Independent Counsel, Department of Justice 28, VI
Operations Office, Department of Agriculture 7, XXVIII
Overseas Private Investment Corporation 22, VII
Oversight Board 12, XV
Packers and Stockyards Administration 9, II
Panama Canal Commission 48, 35
Panama Canal Regulations 35, I
Patent and Trademark Office 37, I
Payment of Expenses Connected With the Death of Certain Employees 41,
303
Peace Corps 22, III
Pennsylvania Avenue Development Corporation 36, IX
Pension and Welfare Benefits Administration, Department of Labor 29,
XXV
Pension Benefit Guaranty Corporation 29, XXVI
Personnel Management, Office of 5, I; 45, VIII; 48, 17
Federal Employees Health Benefits Acquisition Regulation 48, 16
Postal Rate Commission 39, III
Postal Service, United States 39, I
Postsecondary Education, Office of 34, VI
President's Commission on White House Fellowships 1, IV
Presidential Documents 3
Prisons, Bureau of 28, V
Productivity, Technology and Innovation, Assistant Secretary
(Commerce) 37, IV
Property Management Regulations System, Federal 41, Subtitle C
Public Contracts, Department of Labor 41, 50
Public Health Service 42, I
Railroad Retirement Board 20, II
Reclamation Bureau 43, I
Reduction in Meeting and Training Allowance Payments 41, 304
Refugee Resettlement, Office of 45, IV
Regional Action Planning Commissions 13, V
Relocation Allowances 41, 302
Research and Special Programs Administration 49, I
Resolution Trust Corporation 12, XVI
Rural Electrification Administration 7, XVII
Rural Telephone Bank 7, XVI
Saint Lawrence Seaway Development Corporation 33, IV
Science and Technology Policy, Office of 32, XXIV
Science and Technology Policy, Office of, and National Security
Council 47, II
Secret Service 31, IV
Securities and Exchange Commission 17, II
Selective Service System 32, XVI
Small Business Administration 13, I; 48, 22
Smithsonian Institution 36, V
Social Security Administration 20, III; 45, IV
Soil Conservation Service 7, VI
Solar Energy and Energy Conservation Bank, Department of Housing and
Urban Development 24, XI
Soldiers' and Airmen's Home, United States 5, XI
Special Counsel, Office of 5, VIII
Special Education and Rehabilitative Services, Office of 34, III
State Department 22, I
Federal Acquisition Regulation 48, 6
Surface Mining and Reclamation Appeals, Board of 30, III
Susquehanna River Basin Commission 18, VIII
Technology Administration 15, XI
Tennessee Valley Authority 18, XIII
Thrift Supervision Office, Department of the Treasury 12, V
Trade Representative, United States, Office of 15, XX
Transportation, Department of 44, IV
Coast Guard 33, I; 46, I, III; 49, IV
Commercial Space Transportation, Office of 14, III
Contract Appeals Board 48, 63
Federal Acquisition Regulation 48, 12
Federal Aviation Administration 14, I
Federal Highway Administration 23, I, II; 49, III
Federal Railroad Administration 49, II
Maritime Administration 46, II
National Highway Traffic Safety Administration 23, II, III; 49, V
Research and Special Programs Administration 49, I
Saint Lawrence Seaway Development Corporation 33, IV
Secretary of Transportation, Office of 14, II; 49, Subtitle A
Urban Mass Transportation Administration 49, VI
Transportation, Office of, Department of Agriculture 7, XXXIII
Travel Allowance 41, 301
Travel and Tourism Administration, United States 15, XII
Treasury Department 17, IV
Alcohol, Tobacco and Firearms, Bureau of 27, I
Comptroller of the Currency 12, I
Customs Service, United States 19, I
Engraving and Printing, Bureau of 31, VI
Federal Acquisition Regulation 48, 10
Federal Law Enforcement Training Center 31, VII
Fiscal Service 31, II
Foreign Assets Control, Office of 31, V
Internal Revenue Service 26, I
Monetary Offices 31, I
Secret Service 31, IV
Secretary of the Treasury, Office of 31, Subtitle A
Thrift Supervision Office 12, V
United States Customs Service 19, I
Truman, Harry S. Scholarship Foundation 45, XVIII
Under Secretary for Technology, Department of Commerce 37, V
United States and Canada, International Joint Commission 22, IV
United States Arms Control and Disarmament Agency 22, VI
United States Customs Service 19, I
United States Fish and Wildlife Service 50, I, IV
United States Information Agency 22, V; 48, 19
United States International Development Cooperation Agency 22, XII
United States International Trade Commission 19, II
United States Postal Service 39, I
United States Soldiers' and Airmen's Home 5, XI
United States Trade Representative, Office of 15, XX
United States Travel and Tourism Adminstration 15, XII
Urban Mass Transportation Administration 49, VI
Veterans Affairs Department 38, I; 48, 8
Veterans' Employment and Training, Office of the Assistant Secretary
for 41, 61; 20, IX
Vice President of the United States, Office of 32, XXVIII
Vocational and Adult Education, Office of 34, IV
Wage and Hour Division 29, V
Water Resources Council 18, VI
Workers' Compensation Programs, Office of 20, I
World Agriculture Outlook Board 7, XXXVIII
10 CFR 490.64 10 CFR (1-1-92 Edition)
10 CFR 490.64 List of CFR Sections Affected
10 CFR 490.64 List of CFR Sections Affected
All changes in this volume of the Code of Federal Regulations which
were made by documents published in the Federal Register since January
1, 1986 are enumerated in the following list. Entries indicate the
nature of the changes effected. Page numbers refer to Federal Register
pages. The user should consult the entries for chapters and parts as
well as sections for revisions.
For the period between January 12, 1974, when Title 10, Chapter II
was established at 39 FR 744, and December 31, 1985, see the ''List of
Sections Affected, 1973-1985,'' Volume I.
10 CFR 490.64 1986
10 CFR
51 FR
Page
Chapter II
430 Authority citation revised 7550
430.27 Revised 42826
430.32 Removed 7550
430.33 Removed 7550
436.100 -- 436.108 (Subpart F) Authority citation revised 4586
436.106 (a)(4) (vi) and (vii) redesignated as (a)(4) (iv) and (v)
4586
463 Form ERA-166 availability 593, 42994
477 Removed 31317
10 CFR 490.64 1987
10 CFR
52 FR
Page
Chapter II
420 Class deviation 18548
430 Authority citation revised 47550
430.22 (c)(1)(iii) and (2)(iii) added; eff. 2-16-88 47550
430.21 -- 430.27 (Subpart B) Appendix C amended; eff. 2-16-88 47551
456 Revised; interim 6715
Revised 34143
458 Removed 34185
465 Class deviation 18548
10 CFR 490.64 1988
10 CFR
53 FR
Page
Chapter II
420 Class deviation 15801
420.2 Amended 52394
420.3 (e) and (f) added 52394
420.4 (b)(1) revised; (b)(4) added 52395
420.12 (a) (4) and (5) and (b) amended; (a)(6) removed; (e) added
52395
430.2 Amended 8311
Corrected 10869
430.22 (m) revised 8311
430.23 (m) (2) through (7) revised 8312
430.21 -- 430.27 (Subpart B) Appendix M amended 8313
435 Added; interim eff. 2-21-89 32545
465 Class deviation 15801
10 CFR 490.64 1989
10 CFR
54 FR
Page
Chapter II
430 Authority citation revised 6074
Competitive impact determinations and analyses 47944
430.1 Revised 6074
430.2 Amended 6074
430.22 (a)(1)(ii), (2)(ii), (3)(ii), (4)(i) and (ii), (b)(1)(ii),
(2)(ii), (3)(ii), (4)(i), and (ii) amended; (a)(6) and (b)(6) removed;
(a)(5) and (b)(5) redesignated as (a)(6) and (b)(6) and revised; new
(a)(5), (b)(5), (p), and (q) added 6075
430.23 Introductory text amended; (p) and (q) added 6075
430.21 -- 430.27 (Subpart B) Appendixes A and B removed 6075
Appendix A1 and B1 headings amended 6075
Appendix A1 amended 36240
effective date corrected 38788
Appendix B1 amended 36241
effective date corrected 38788
Appendix M amended; Appendix N revised; Appendixes P and Q added
6076
Appendix N corrected 11320
430.31 -- 430.33 (Subpart C) Revised 6077
430.32 (a) revised; eff. 1-1-93 47943
(e) table amended; eff. 1-1-92 47944
430.40 -- 430.49 (Subpart D) Revised 6078
430.50 -- 430.57 (Subpart E) Added 6080
430.60 -- 430.75 (Subpart F) Added 6081
430.60 -- 430.75 (Subpart F) Appendix B corrected 11320
435 Authority citation revised 4553
Preliminary standby loss criteria adoption statement 49724
Corrected 50342
435.97 -- 435.112 (Subpart A) Added 4554
10 CFR 490.64 1990
10 CFR
55 FR
Page
Chapter II
420.2 Amended; interim 3004
Amended; final 41324
420.5 Revised; interim 3004
Revised; final 41324
420.9 Revised; interim 3004
Revised; final 41325
430.2 Corrected 996
430.22 (e) (1) and (2) revised; (e)(4) added; eff. 4-15-91 42169
430.21 -- 430.27 (Subpart B) Appendix E revised; eff. 4-15-91 42169
430.31 Amended; eff. 4-15-91 42177
430.32 (e) regulation at 54 FR 6077 effective date corrected 42162
(d) revised; (e) amended; (d) eff. 4-15-91 42177
(a) introductory text republished; (a) table corrected; eff.
1-1-93 42847
435 Standby loss criteria statement and response to comments 23842
Preliminary standby loss criteria adoption statement supplement 3714
Regulation at 54 FR 49724 comment time extended 3714
435.109 Table 9.3-1 revised 23869
436 Authority citation revised 48220
436.1 Revised 48220
436.2 Revised 46220
436.10 -- 436.24 (Subpart A) Revised 48220
436.30 -- 436.34 (Subpart B) Removed 48223
436.40 -- 436.56 (Subpart C) Removed 48223
436.70 -- 436.80 (Subpart D) Removed 48223
436.100 (a) amended; (b) revised 48223
440.3 Amended; interim 3005
Amended; final 41325
440.12 (a) amended; (c) added; interim 3005
(a) amended; (c) added; final 41325
440.15 (c) amended; interim 3005
(c) amended; final 41326
440.30 Revised; interim 3005
Revised; final 41326
455.2 Amended; interim 3005
Amended; final 41326
455.110 -- 455.115 (Subpart J) Added; interim 3006
Added; final 41326
465.2 Amended; interim 3006
Amended; final 41327
465.8 Revised; interim 3007
Revised; final 41327
465.10 Revised; interim 3007
Revised; final 41328
10 CFR 490.64 1991
10 CFR
56 FR
Page
Chapter I
Chapter II
430 Authority citation revised 22279
430.2 Amended 18681
430.22 (k) and (l) removed; (q) added 18681
430.23 (k) and (l) removed; (q) added 18682
430.21 -- 430.27 (Subpart B) Appendixes K1, K2 and L removed;
Appendix Q amended 18682
430.32 (f), (g) and (h) revised; eff. 5-14-94 22279
(a) introductory text republished; (a) table corrected 24333
435 Authority citation revised 3772
435.302 Revised 3772
435.304 Nomenclature change 3772
435.305 Added 3772
435.306 Added 3776
10
Energy
PARTS 400 TO 499
Revised as of January 1, 1992
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JANUARY 1, 1992
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
10 CFR 490.64 Table of Contents
Page
Explanation v
Title 10:
Chapter II -- Department of Energy
Finding Aids:
Material Approved for Incorporation by Reference
Table of CFR Titles and Chapters
Alphabetical List of Agencies Appearing in the CFR
List of CFR Sections Affected
10 CFR 490.64 Explanation
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
regulation. Each title is divided into chapters which usually bear the
name of the issuing agency. Each chapter is further subdivided into
parts covering specific regulatory areas.
Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16 as of January 1
Title 17 through Title 27 as of April 1
Title 28 through Title 41 as of July 1
Title 42 through Title 50 as of October 1
The appropriate revision date is printed on the cover of each volume.
LEGAL STATUS
The contents of the Federal Register are required to be judicially
noticed (44 U.S.C. 1507). The Code of Federal Regulations is prima facie
evidence of the text of the original documents (44 U.S.C. 1510).
HOW TO USE THE CODE OF FEDERAL REGULATIONS
The Code of Federal Regulations is kept up to date by the individual
issues of the Federal Register. These two publications must be used
together to determine the latest version of any given rule.
To determine whether a Code volume has been amended since its
revision date (in this case, January 1, 1992), consult the ''List of CFR
Sections Affected (LSA),'' which is issued monthly, and the ''Cumulative
List of Parts Affected,'' which appears in the Reader Aids section of
the daily Federal Register. These two lists will identify the Federal
Register page number of the latest amendment of any given rule.
EFFECTIVE AND EXPIRATION DATES
Each volume of the Code contains amendments published in the Federal
Register since the last revision of that volume of the Code. Source
citations for the regulations are referred to by volume number and page
number of the Federal Register and date of publication. Publication
dates and effective dates are usually not the same and care must be
exercised by the user in determining the actual effective date. In
instances where the effective date is beyond the cut-off date for the
Code a note has been inserted to reflect the future effective date. In
those instances where a regulation published in the Federal Register
states a date certain for expiration, an appropriate note will be
inserted following the text.
OMB CONTROL NUMBERS
The Paperwork Reduction Act of 1980 (Pub. L. 96-511) requires Federal
agencies to display an OMB control number with their information
collection request. Many agencies have begun publishing numerous OMB
control numbers as amendments to existing regulations in the CFR. These
OMB numbers are placed as close as possible to the applicable
recordkeeping or reporting requirements.
OBSOLETE PROVISIONS
Provisions that become obsolete before the revision date stated on
the cover of each volume are not carried. Code users may find the text
of provisions in effect on a given date in the past by using the
appropriate numerical list of sections affected. For the period before
January 1, 1986, consult either the List of CFR Sections Affected,
1949-1963, 1964-1972, or 1973-1985, published in seven separate volumes.
For the period beginning January 1, 1986, a ''List of CFR Sections
Affected'' is published at the end of each CFR volume.
INCORPORATION BY REFERENCE
What is incorporation by reference? Incorporation by reference was
established by statute and allows Federal agencies to meet the
requirement to publish regulations in the Federal Register by referring
to materials already published elsewhere. For an incorporation to be
valid, the Director of the Federal Register must approve it. The legal
effect of incorporation by reference is that the material is treated as
if it were published in full in the Federal Register (5 U.S.C. 552(a)).
This material, like any other properly issued regulation, has the force
of law.
What is a proper incorporation by reference? The Director of the
Federal Register will approve an incorporation by reference only when
the requirements of 1 CFR part 51 are met. Some of the elements on
which approval is based are:
(a) The incorporation will substantially reduce the volume of
material published in the Federal Register.
(b) The matter incorporated is in fact available to the extent
necessary to afford fairness and uniformity in the administrative
process.
(c) The incorporating document is drafted and submitted for
publication in accordance with 1 CFR part 51.
Properly approved incorporations by reference in this volume are
listed in the Finding Aids at the end of this volume.
What if the material incorporated by reference cannot be found? If
you have any problem locating or obtaining a copy of material listed in
the Finding Aids of this volume as an approved incorporation by
reference, please contact the agency that issued the regulation
containing that incorporation. If, after contacting the agency, you
find the material is not available, please notify the Director of the
Federal Register, National Archives and Records Administration,
Washington DC 20408, or call (202) 523-4534.
CFR INDEXES AND TABULAR GUIDES
A subject index to the Code of Federal Regulations is contained in a
separate volume, revised annually as of January 1, entitled CFR Index
and Finding Aids. This volume contains the Parallel Table of Statutory
Authorities and Agency Rules (Table I), and Acts Requiring Publication
in the Federal Register (Table II). A list of CFR titles, chapters, and
parts and an alphabetical list of agencies publishing in the CFR are
also included in this volume.
An index to the text of ''Title 3 -- The President'' is carried
within that volume.
The Federal Register Index is issued monthly in cumulative form.
This index is based on a consolidation of the ''Contents'' entries in
the daily Federal Register.
A List of CFR Sections Affected (LSA) is published monthly, keyed to
the revision dates of the 50 CFR titles.
REPUBLICATION OF MATERIAL
There are no restrictions on the republication of material appearing
in the Code of Federal Regulations.
INQUIRIES AND SALES
For a summary, legal interpretation, or other explanation of any
regulation in this volume, contact the issuing agency. Inquiries
concerning editing procedures and reference assistance with respect to
the Code of Federal Regulations may be addressed to the Director, Office
of the Federal Register, National Archives and Records Administration,
Washington, DC 20408 (telephone 202-523-3517). All mail order sales are
handled exclusively by the Superintendent of Documents, Attn: New
Orders, P.O. Box 371954, Pittsburgh, PA 15250-7954. Charge orders may
be telephoned to the Government Printing Office order desk at
202-783-3238.
Martha L. Girard,
Director,
Office of the Federal Register.
January 1, 1992.
10 CFR 490.64 THIS TITLE
Title 10 -- Energy is composed of five volumes. The parts in these
volumes are arranged in the following order: parts 0-50, 51-199,
200-399, 400-499 and part 500-End. The first and second volumes
containing parts 0-199 are comprised of chapter I -- Nuclear Regulatory
Commission. The third, fourth, and fifth volumes containing part
200-End are comprised of chapters II, III and X -- Department of Energy,
chapter XV -- Office of the Federal Inspector for the Alaska Natural Gas
Transportation System, and chapter XVII -- Defense Nuclear Facilities
Safety Board. The contents of these volumes represent all current
regulations codified under this title of the CFR as of January 1, 1992.
For this volume Linda L. Jones was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Richard L. Claypoole, assisted by Alomha S. Morris.
10 CFR 0.0 Title 10 -- Energy
10 CFR 0.0 (This book contains part 500 to End)
Part
chapter ii -- Department of Energy (Continued) 500
chapter iii -- Department of Energy 703
chapter x -- Department of Energy (General Provisions) 1000
chapter xv -- Office of the Federal Inspector for the Alaska Natural
Gas Transportation System 1500
chapter xvii -- Defense Nuclear Regulatory Systems Board
10 CFR 0.0 10 CFR Ch. II (1-1-92 Edition)
10 CFR 0.0 Department of Energy
10 CFR 0.0 CHAPTER II -- DEPARTMENT OF ENERGY -- CONTINUED
10 CFR 0.0
10 CFR 0.0 SUBCHAPTER E -- ALTERNATE FUELS
Part
Page
500 Definitions
501 Administrative procedures and sanctions
503 New facilities
504 Existing powerplants
508 Electric utility conservation
515 Transitional facilities
516 Prohibition on sale and direct industrial use of natural gas for
outdoor lighting
10 CFR 0.0
10 CFR 0.0 SUBCHAPTER G -- NATURAL GAS (ECONOMIC REGULATORY
ADMINISTRATION)
580 Curtailment priorities for essential agricultural uses
590 Administrative Procedures with respect to the import and export
of natural gas
595 Certification of use of natural gas to displace fuel oil
10 CFR 0.0
10 CFR 0.0 SUBCHAPTER H -- ASSISTANCE REGULATIONS
600 Financial assistance rules
601 New restrictions on lobbying
605 Special research grants program
10 CFR 0.0
10 CFR 0.0 SUBCHAPTER I -- SALES REGULATION
622 Contractual provisions
624 Contract clauses
625 Price competitive sale of Strategic Petroleum Reserve petroleum
10 CFR 0.0
10 CFR 0.0 10 CFR Ch. II (1-1-92 Edition)
10 CFR 0.0 Department of Energy
10 CFR 0.0 SUBCHAPTER E -- ALTERNATE FUELS
10 CFR 0.0 PART 500 -- DEFINITIONS
Sec.
500.1 Purpose and scope.
500.2 General definitions.
500.3 Electric regions -- electric region groupings for reliability
measurements under the Powerplant and Industrial Fuel Use Act of 1978.
Authority: Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565 (42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel
Use Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et
seq.); Energy Security Act, Pub. L. 96-294, 94 Stat. 611 (42 U.S.C.
8701 et seq.); E.O. 1209, 42 FR 46267, September 15, 1977.
Source: 46 FR 59884, Dec. 7, 1981, unless otherwise noted.
OMB Control No. : 1903-0075. See 46 FR 63209, Dec. 31, 1981.
10 CFR 500.1 Purpose and scope.
Unless otherwise expressly provided or the context clearly indicates
otherwise, this section defines the terms used in these regulations.
The use of the male gender is to include female; the use of singular to
include plural.
10 CFR 500.2 General definitions.
For purposes of this part and parts 501-507 term(s):
Act means Powerplant and Industrial Fuel Use Act of 1978, 42 U.S.C.
8301 et seq.
Action means a prohibition by rule or order, in accordance with
sections 301(b) and (c) of FUA; any order granting or denying an
exemption in accordance with sections 211, 212, 311 and 312 of FUA; a
modification or rescission of any such order, or rule; an
interpretation; a notice of violation; a remedial order; an
interpretive ruling; or a rulemaking undertaken by DOE.
Affiliate, when used in relation to person, means another person who
controls, is controlled by, or is under common control, with such
person.
Aggrieved, for purposes of administrative proceedings, describes and
means a person (with an interest sought to be protected under FUA) who
is adversely affected by an action proposed or undertaken by DOE.
Air pollution control agency means any of the following:
(1) A single State agency designated as the official State air
pollution control agency;
(2) An agency established by two or more States and having
substantial powers or duties pertaining to the prevention and control of
air pollution;
(3) A city, county, or other local government health authority or, in
the case of any city, county, or other local unit of government in which
there is an agency other than the health authority charged with
responsibility for enforcing ordinances or laws relating to the
prevention and control of air pollution, such other agency; or
(4) An agency or two or more municipalities located in the same State
or in different States and having substantial powers or duties
pertaining to the prevention and control of air pollution.
Alternate fuel means electricity or any fuel, other than natural gas
or petroleum. The term includes, but is not limited to :
(1) Coal;
(2) Solar energy;
(3) Petroleum coke; shale oil; uranium; biomass, tar sands,
oil-impregnated diatomaceous earth; municipal, industrial, or
agricultural wastes; wood; and renewable and geothermal energy sources
(For purposes of this paragraph (3), the term industrial does not
include refineries.);
(4) Liquid, solid or gaseous waste by-products of refinery or
industrial operations which are commercially unmarketable, either by
reason of quality or quantity. (For purposes of this paragraph (4), the
term waste by-product is defined as an unavoidable by-product of the
industrial or refinery operation.) A waste by-product of a refinery or
industrial operation is commercially unmarketable if it meets the
criteria listed in the definition of ''commercial unmarketability,'' set
forth below;
(5) Any fuel derived from an alternate fuel; and
(6) Waste gases from industrial operations. (For purposes of this
subsection, the term industrial does not include refineries.)
Applicable environmental requirements includes:
(1) Any standard, limitation, or other requirement established by or
pursuant to Federal or State law (including any final order of any
Federal or State Court) applicable to emissions of environmental
pollutants (including air and water pollutants) or disposal of solid
waste residues resulting from the use of coal or other alternate fuels,
natural gas, or petroleum as a primary energy source or from the
operation of pollution control equipment in connection with such use,
taking into account any variance of law granted or issued in accordance
with Federal law or in accordance with State law to the extent
consistent with Federal law; and
(2) Any other standard, limitation, or other requirement established
by, or pursuant to, the Clean Air Act, the Federal Water Pollution
Control Act, the Solid Waste Disposal Act, the Resource Conservation and
Recovery Act of 1976, or the National Environmental Policy Act of 1969.
Base load powerplant means a powerplant, the electrical generation of
which in kilowatt hours exceeds, for any 12-calendar-month period, such
powerplant's design capacity multiplied by 3,500 hours.
Boiler means a closed vessel in which water is heated electrically or
by the combustion of a fuel to produce steam of one percent or more
quality.
Btu means British thermal unit.
Capability to use alternate fuel, for the purposes of Title II
prohibitions relating to construction of new powerplants, means the
powerplant to be constructed:
(1) Has sufficient inherent design characteristics to permit the
addition of equipment (including all necessary pollution devices)
necessary to render such electric powerplant capable of using coal or
another alternate fuel as its primary energy source; and
(2) Is not physically, structurally, or technologically precluded
from using coal or another alternate fuel as its primary energy source.
Capability to use coal or another alternate fuel shall not be
interpreted to require any such powerplant to be immediately able to use
coal or another alternate fuel as its primary energy source on its
initial day of operation. In addition, the owner or operator of a
baseload powerplant need not have adequate on-site space for either a
coal gasifier or any facilities for handling coal or related fuels.
Certification means a document, signed by an official of the owner or
operator, notarized, and submitted to OFE, which declares that a new
powerplant will have the ''capability to use alternate fuel'' (as
defined herein).
Certifying powerplant means an existing powerplant whose owner or
operator seeks to obtain a prohibition order against the use of natural
gas or petroleum either totally or in a mixture with coal or an
alternate fuel by filing a certification as to both the technical
capability and financial feasibility of conversion to coal or another
alternate fuel pursuant to section 301 of FUA, as amended.
Clean Air Act means the Clean Air Act, 42 U.S.C. 7401 et seq.
(1970), as amended by Pub. L. 93-319, 88 Stat. 246, and Pub. L.
95-91, 91 Stat. 685.
Coal means anthracite, bituminous and sub-bituminous coal, lignite,
and any fuel derivative thereof.
Cogeneration facility means an electric powerplant that produces:
(1) Electric power; and
(2) Any other form of useful energy (such as steam, gas or heat) that
is, or will be used, for industrial, commercial, or space heating
purposes. In addition, for purposes of this definition, electricity
generated by the cogeneration facility must constitute more than five
(5) percent and less than ninety (90) percent of the useful energy
output of the facility.
Note -- Any cogeneration facility selling or exchanging less than
fifty percent (50%) of the facility's generated electricity is
considered an industrial cogenerator and is exempt from the fuel use
prohibitions of FUA.
Combined cycle unit means an electric power generating unit that
consists of a combination of one or more combustion turbine units and
one or more steam turbine units with a substantial portion of the
required energy input of the steam turbine unit(s) provided by the
exhaust gas from the combustion turbine unit(s).
Substantial amounts of supplemental firing for a steam turbine or
waste heat boiler to improve thermal efficiency will not affect a unit's
classification as a combined cycle unit.
Combustion turbine means a unit that is a rotary engine driven by a
gas under pressure that is created by the combustion of any fuel.
Commercial unmarketability as used in the definitions of ''alternate
fuel,'' ''natural gas'' and ''petroleum'' shall be determined as
follows:
(1) A waste by-product of industrial or refinery operations is
commercially unmarketable by reason of:
(i) Quality, where the cost of processing (limited to upgrading the
waste by-product to commercial quality), storing, and distributing the
waste by-product would not be covered by reasonably expected revenues
from its sale;
(ii) Quantity, where the cost of aggregating the waste by-product
into commercial quantities through storing and distributing the waste
by-product would not be covered by reasonably expected revenues from its
sale.
(2) A fuel will not be classified as ''natural gas'' when it is
commercially unmarketable by reason of:
(i) Quality, where the cost of producing, upgrading to commercial
quality, storing, and distributing the fuel would not be covered by
reasonably expected revenues from its sale; or
(ii) Quantity, where the quantities of the fuel are so small that the
revenues to be reasonably expected from its sale would not cover the
cost of its production, distribution or storage.
(3) Costs associated with upgrading, storing, distributing, and
aggregating a by-product or other fuel (to determine if such fuel is
natural gas) may properly include a reasonable rate of return on any
capital investment required to overcome the problems posed by the
quality or quantity of a fuel because the return on investment is a
normal aspect of any investment decision. A firm may account for this
reasonable rate of return by using its customary discount rate for an
investment of similar risk.
(4) As part of any consideration of the rate of return on investment,
the cost of replacing the Btu's lost if the by-product or other fuel
were upgraded and sold instead of used as a fuel may be taken into
consideration. The actual expense that would result from burning a
replacement fuel in lieu of the by-product or other fuel in question may
therefore be considered. The costs associated with using a replacement
fuel are indirect costs that result from upgrading and selling the fuel,
instead of burning it. These indirect costs as well as the direct costs
associated with the upgrading, storing, distributing, and aggregating of
by-products or other fuel may be considered in any assessment of
commercial unmarketability.
Conference means an informal meeting incident to any proceeding,
between DOE and any interested person.
Construction means substantial physical activity at the unit site and
includes more than clearance of a site or installation of foundation
pilings.
Costs means total costs, both operating and capital, incurred over
the estimated remaining useful life of an electric powerplant,
discounted to the present, pursuant to rules established in parts 503
and 504 of these regulations.
DEOA means the Department of Energy Organization Act (Pub. L. 95-91)
(42 U.S.C. 7101 et seq.) as implemented by Executive Order 12009 (42 FR
46267, September 15, 1977).
Design capability defined in section 103(a)(7) of FUA, shall be
determined as follows:
(1) Boiler and associated generator turbines. The design fuel heat
input rate of a steam-electric generating unit (Btu/hr) shall be the
product of the generator's nameplate rating, measured in kilowatts, and
3412 (Btu/kWh), divided by the overall boiler-turbine-generator unit
design efficiency (decimal); or if the generator's nameplate does not
have a rating measured in kilowatts, the product of the generator's
kilovolt-amperes nameplate rating, and the power factor nameplate
rating; and 3412 (Btu/kWh), divided by the boiler turbine-generator
unit's design efficiency (decimal). (The number 3412 converts
kilowatt-hours (absolute) into Btu's (mean).)
(2) Combustion turbine and associated generator. The design fuel
heat input rate of a combustion turbine (Btu/hr) shall be the product of
its nameplate rating, measured in kilowatts, and 3412 (Btu/kWh), divided
by the combustion turbine-generator unit's design efficiency (decimal),
adjusted for peaking service at an ambient temperature of 59 degrees
Fahrenheit (15 degrees Celsius) at the unit's elevation. (The number
3412 converts kilowatt-hours (absolute) into Btu's (mean).)
(3) Combined cycle unit. The design fuel heat input rate of a
combined cycle unit (Btu/hr) shall be the summation of the product of
its generator's nameplate rating, measured in kilowatts, and 3412
(Btu/kWh), divided by the overall combustion turbine-generator unit's
efficiency (decimal), adjusted for peaking service at an ambient
temperature of 59 degrees Fahrenheit (15 degrees Celsius) and at the
unit's evaluation, plus the product of the maximum fuel heat input to
any supplemental heat recovery steam generator/boiler in gallons or
pounds per hour and the fuel's heat content. If the generator's
nameplate does not have a rating measured in kilowatts, the product of
the generator's kilowatt-amperes nameplate rating and power factor
nameplate rating must be substituted for kilowatts. (The number 3412
converts kilowatt-hours (absolute) into Btu's (mean).)
Design capacity of a powerplant pursuant to section 103(a)(18) of
FUA, is determined according to 18 CFR 287.101.
DOE or the Department means the United States Department of Energy,
as defined in sections 201 and 301(a) of the DEOA, including the
Secretary of Energy or his designee.
Duly authorized representative means a person who is authorized to
appear before DOE in connection with a proceeding on behalf of a person
interested in or aggrieved by that proceeding. Such appearance may
include the submission of applications, petitions, requests, statements,
memoranda of law, other documents, or of a personal appearance, oral
communication, or any other participation in a proceeding.
Electing powerplant means an existing powerplant, which (1) has been
issued a proposed prohibition order under former section 301 (b) or (c)
of FUA prior to August 13, 1981, the date of enactment of the Omnibus
Budget Reconciliation Act of 1981, Pub. L. 97-35 (OBRA); and (2) files
an election to continue the current prohibition order proceeding under
provisions of the former section 301 of FUA, rather than under amended
section 301 of FUA. 1 Under the election provisions, an existing
powerplant which has an order pending against it under section 2 of the
Energy Supply and Environmental Coordination Act of 1974, as amended, 15
U.S.C. 791 et seq. (ESECA), as of August 13, 1981, may also elect to
continue the current proceeding under section 2 of ESECA. Electing
powerplants under ESECA are not included in the FUA definition of
''electing powerplant''. Relevant regulations governing ESECA
proceedings are found at 10 CFR part 303 and 305. These elections must
have been filed with DOE by November 30, 1981 in the case of FUA orders
and by January 14, 1982 in the case of ESECA orders.
Electric generating unit does not include:
(1) Any electric generating unit subject to the licensing
jurisdiction of the Nuclear Regulatory Commission (NRC); and
(2) Any cogeneration facility from which less than 50 percent of the
net annual electric power generation is sold or exchanged for resale.
Excluded from 'sold or exchanged for resale' are sales or exchanges to
or with an electric utility for resale by the utility to the
cogenerating supplier, and sales or exchanges among owners of the
cogeneration facility.
Note: For purposes of subparagraph (1) of this definition, OFE will
not consider any unit located at a site subject to NRC's licensing
authority to be jurisdictional for purposes of FUA.
Electric powerplant means any stationary electric generating unit
consisting of (a) a boiler, (b) a gas turbine, or (c) a combined cycle
unit which employs a generator to produce electric power for purposes of
sale or exchange and has the design capability of consuming any fuel (or
mixture thereof) at a fuel heat input rate of 100 million Btu's per hour
or greater. In accordance with section 103(a)(7)(C) of FUA, the
Secretary has determined that it is appropriate to exclude from this
definition any unit which has a design capability to consume any fuel
(including any mixture thereof) that does not equal or exceed 100
million Btu's per hour.
Electric Region is as defined in 500.3 of this part.
Electric utility means any person, including any affiliate, or
Federal agency, which sells electric power.
Emission offset means emission reductions as defined by EPA's
regulations set forth at 40 CFR part 51, appendix S.
EPA means the United States Environmental Protection Agency.
ESECA means the Energy Supply and Environmental Coordination Act of
1974, as amended, 15 U.S.C. 791 et seq.
Existing powerplant means any powerplant other than a new powerplant.
Federal Water Pollution Control Act means the Federal Water Pollution
Control Act, 33 U.S.C. 1251 et seq., as amended.
FERC means the Federal Energy Regulatory Commission.
Firm means a parent company and the consolidated or unconsolidated
entities (if any) that it directly or indirectly controls.
Fluidized bed combustion means combustion of fuel in connection with
a bed of inert material, such as limestone or dolomite, that is held in
a fluid-like state by the means of air or other gases being passed
through such materials.
FTC means the Federal Trade Commission.
FUA means the Powerplant and Industrial Fuel Use Act of 1978, 42
U.S.C. 8301 et seq.
Fuel Use Act means FUA.
Fuel use order means a directive issued by OFE pursuant to 501.167
of these regulations.
Gas turbine means ''combustion turbine''.
High-priority user, for purposes of Subsection 312(j) of FUA, means
any residential user of natural gas, or any commercial user whose
consumption of natural gas on peak day is less than 50 MCF.
Internal combustion engine means a heat engine in which the
combustion that generates the heat takes place inside the engine proper.
Interpretation means a written statement issued by the DOE General
Counsel or his delegate, in response to a written request, that applies
the regulations, rulings, and other precedents previously issued by the
DOE to the particular facts of a prospective or completed act or
transaction.
Mcf means 1,000 cubic feet of natural gas.
Mixture, when used in relation to fuels used in a unit, means a
mixture of petroleum or natural gas and an alternate fuel, or a
combination of such fuels, used simultaneously or alternately in such
unit.
Natural gas means any fuel consisting in whole or in part of natural
gas, including components of natural gas such as methane and ethane;
liquid petroleum gas; synthetic gas derived from petroleum or natural
gas liquids; or any mixture of natural gas and synthetic gas. Natural
gas does not include:
(1) Gaseous waste by-products or waste gas specifically designated as
an alternate fuel in 500.2 of these regulations;
(2) Natural gas which is commercially unmarketable, as defined in
these rules;
(3) Natural gas produced by the user from a well, the maximum
efficient production rate of which is less than 250 million Btu's per
day. For purposes of paragraph (3) of this definition:
(i) Produced by the user means:
(A) All gas produced by the well, when such gas is delivered for use
in the user's facility through a gas delivery, gathering, or
transportation system which could not deliver such gas to any other
user; or
(B) Only that amount which represents the user's net working
(mineral) interest in the gas produced from such well, where such gas is
delivered for use in the user's facility through a gas delivery,
gathering, or transportation system which could deliver such gas to any
other user.
(ii) Maximum efficient production rate (MEPR) means that rate at
which production of natural gas may be sustained without damage to the
reservoir or the rate which may be sustained without damage to the
ultimate recovery of oil or gas through the well.
(4) Occluded methane in coal seams within the meaning of section
107(c)(3) of the Natural Gas Policy Act of 1978 (NGPA);
(5) The following gas from wells spudded prior to January 1, 1990:
(i) Gas produced from geopressurized brine, within the meaning of
section 107(c)(2) of the NGPA;
(ii) Gas produced from Devonian shale, within the meaning of section
107(c)(4) of the NGPA;
(iii) Gas produced from tight sands, as designated by the FERC in
accordance with section 107(c)(5) of the NGPA; and
(iv) Other gases designated by FERC as ''high-cost natural gas'' in
accordance with section 107(c)(5) of the NGPA, except as specifically
designated as ''natural gas'' by OFE;
(6)(i) Synthetic gas derived from coal or other alternate fuel, the
heat content of which is less than 600 Btu's per cubic foot at 14.73
pounds per square inch (absolute) and 60 F; and
(ii) Commingled natural gas and synthetic gas derived from coal
consumed as part of the necessary process of a major fuel burning
installation used in the iron and steel industry, so long as the average
annual Btu heat content of the commingled stream as consumed within a
major fuel burning installation does not exceed 600 Btu's per cubic foot
at 14.73 pounds per square inch (absolute) and 60 F;
(7) Mixtures of natural gas and synthetic gas derived from alternate
fuels for which the person proposing to use the gas certifies to OFE
that:
(i) He owns, or is entitled to receive at the point of manufacture,
synthetic gas derived from alternate fuels;
(ii) He delivers, or arranges for the delivery of such synthetic gas
to a pipeline which by transport or displacement is capable of
delivering such synthetic gas, mixed with natural gas, to facilities
owned by the user;
(iii) The total annual Btu content of the synthetic gas delivered to
a pipeline is equal to or greater than the total annual Btu content of
the natural gas delivered to the facilities owned by the user, plus the
approximate total annual Btu content of any natural gas consumed or lost
in transportation; and
(iv) All necessary permits, licenses, or approvals from appropriate
Federal, State, and local agencies (including Indian tribes) have been
obtained for construction and operation of the facilities for the
manufacture of the synthetic gas involved, except that for purposes of
the prohibition under section 201(2) of FUA against powerplants being
constructed without the capability of using coal or another alternate
fuel, only permits, licenses, and approvals for the construction of such
synthetic gas facilities shall be required under this subparagraph, to
be certified and documented; and
(8) A mixture of natural gas and an alternate fuel when such mixture
is deliberately created for purposes of (i) Complying with a prohibition
order issued pursuant to section 301(c) of the Act, or (ii) Qualifying
for a fuel mixtures exemption under the Act, provided such exemption is
granted.
NEPA means the National Environmental Policy Act of 1969, as amended,
42 U.S.C. 4321 et seq.
New electric powerplant means any electric powerplant: (1) That was
not classified as existing under part 515 of this subchapter; (2) That
was reconstructed, as defined in these rules under the definition of
''reconstruction''; or (3) For which construction was begun after
November 9, 1978.
NGPA means the Natural Gas Policy Act of 1978, 15 U.S.C. 3301 et seq.
Nonboiler means any powerplant which is not a boiler and consists of
either a combustion turbine unit or combined cycle unit.
Notice of violation means a written statement issued to a person by
DOE that states one or more alleged violations of the provisions of
these regulations, any order issued pursuant thereto, or the Act.
OBRA means the Omnibus Budget Reconciliation Act of 1981, Pub. L.
97-35.
OFE means the Office of Fossil Energy of OFE.
Offset means ''emission offset''.
Order means a final disposition, other than the issuance of a rule,
issued by DOE pursuant to these regulations or the Act.
Person means any:
(1) Individual, corporation, company, partnership, association, firm,
institution, society, trust, joint venture, or joint stock company;
(2) Any State; or
(3) Any Federal, State, or local agency or instrumentality (including
any municipality) thereof.
Petroleum means crude oil and products derived from crude oil, other
than:
(1) Petroleum products specifically designated as alternate fuels
pursuant to these regulations;
(2) Synthetic gas derived from crude oil;
(3) Liquid petroleum gas;
(4) Petroleum coke or waste gases from industrial operations; and
(5) A liquid, solid, or gaseous waste by-product of refinery
operations which is commercially unmarketable under the definition of
''commercial unmarketability'' in these rules.
Note: For the purposes of this subparagraph, waste by-proucts do not
include components (such as butane and propane) that can be extracted
from the waste by-product by reasonable further processing of the waste
by-product at the refinery, nor do they include final products that use
the waste by-product as a blend stock at the refinery.
Petition means a formal request for any action including an exemption
submitted to DOE under these regulations.
Powerplant means ''electric powerplant.''
Product or process requirements means that product or process for
which the use of an alternate fuel is not technically feasible due to
the necessity to maintain satisfactory control of product quality and
for which the substitution of steam is not technically feasible due to
process requirements.
Primary energy source means the fuel or fuels used by any existing or
new electric powerplant except:
(1) Minimum amounts of fuel required for unit ignition, startup,
testing, flame stabilization, and control uses. OFE has determined
that, unless need for a greater amount is demonstrated, twenty-five (25)
percent of the total annual Btu heat input of a unit shall be
automatically excluded under this paragraph.
(2) Minimum amounts of fuel required to alleviate or prevent:
(i) Unanticipated equipment outages as defined in 501.191 of these
regulations; and
(ii) Emergencies directly affecting the public health, safety, or
welfare that would result from electric power outages as defined in
501.191 of these regulations.
Note: (1) Any fuel excluded under the provisions of paragraph (1) of
this definition is in addition to any fuel authorized to be used in any
order granting a fuel mixtures exemption under parts 503 and 504 of
these rules. The exclusion of fuel under paragraph (1), together with
the authority for such additive treatment, shall apply to any
jurisdictional facility, regardless of whether or not it had received an
order granting an exemption as of the date these rules are promulgated.
(2) If an auxiliary unit to an electric powerplant consumes fuel only
for the auxiliary functions of unit ignition, startup, testing, flame
stabilization, and other control uses, its use of minimum amounts of
natural gas or petroleum is not prohibited by FUA. The measurement of
such minimum amounts of fuel is discussed in Associated Electric
Cooperative, et al., Interpretation 1980-42 (45 FR 82572, Dec. 15,
1980).
Prohibition order means:
(1) An order issued pursuant to section 301(b) of the Act that
prohibits a powerplant from burning natural gas or petroleum as its
primary energy source; or
(2) An order issued pursuant to section 301(c) of the Act that
prohibits excessive use of natural gas or petroleum in mixtures burned
by a powerplant as its primary energy source.
Rated capacity for the purpose of determining reduction in the rated
capacity of an existing powerplant, means design capacity, or, at the
election of the facility owner or operator, the actual maximum sustained
energy output per unit of time that could be produced, measured in power
output, expressed in kilowatts, per unit of time.
Reconstruction means the following:
(1) Except as provided in paragraph (2) of this definition,
reconstruction shall be found to have taken place whenever the capital
expenditures for refurbishment or modification of an electric powerplant
on a cumulative basis for the current calendar year and preceding
calendar year, are equal to or greater than fifty (50) percent of the
capital costs of an equivalent replacement unit of the same capacity,
capable of burning the same fuels.
(2) Notwithstanding paragraph (1) of this definition, reconstruction
shall not be found to have taken place whenever:
(i) The capital expenditures for refurbishment or modification of an
electric powerplant, on a cumulative basis for the current calendar year
and preceding calendar year, are not greater than eighty (80) percent of
the capital costs of an equivalent replacement unit of the same
capacity, capable of burning the same fuels and the unit, as refurbished
or modified, will not have a greater fuel consumption capability than
the unit it replaces;
(ii) The unit being refurbished or modified was destroyed, in whole
or substantial part, in a plant accident and the unit, as refurbished or
modified, will not have a greater fuel consumption capability than the
unit it replaces; or
(iii) Refurbishment or modification of the unit is undertaken
primarily for the purpose of increasing fuel burning efficiency of the
unit, and will not result in:
(A) Increased remaining useful plant life, or
(B) Increased total annual fuel consumption.
Resource Conservation and Recovery Act of 1976 means the Resource
Conservation and Recovery Act of 1976, 42 U.S.C. 6901 et seq.
SIP means State Implementation Plan pursuant to section 10 of the
Clean Air Act.
Site limitation means a specific physical limitation associated with
a particular site that relates to the use of an alternate fuel as a
primary energy scurce for the powerplant such as:
(1) Inaccessibility to alternate fuels;
(2) Lack of transportation facilities for alternate fuels;
(3) Lack of adequate land for facilities for the handling, use and
storage of alternate fuels;
(4) Lack of adequate land or facilities for the control or disposal
of wastes from such powerplant, including lack of land for pollution
control equipment or devices necessary to assure compliance with
applicable environmental requirements; and
(5) Lack of an adequate and reliable supply of water, including water
for use in compliance with applicable environmental requirements.
Solid Waste Disposal Act means the Solid Waste Disposal Act, 42
U.S.C. 6901 et seq., as amended.
State regulatory authority means any State agency that acts as
ratemaking or power supply authority with respect to the sale of
electricity by any State regulated electric utility.
Synthetic fuel means any fuel derived from an alternate fuel and does
not include any fuels derived from petroleum or natural gas.
Wetlands areas means, for purposes of section 103(a)(12) of the Act,
those geographical areas designated as wetlands areas by State or local
environmental regulatory authorities, or in the absence of any such
geographic designation, those areas that are inundated by surface or
ground water with frequency sufficient to support, and under normal
circumstances does or would support, a prevalence of vegetation or
aquatic life that requires saturated, seasonably saturated, or tidally
saturated soil conditions for growth or reproduction.
(Department of Energy Organization Act, Pub. L. 95-91, 42 U.S.C.
7101 et seq.; Energy Supply and Environmental Coordination Act of 1974,
Pub. L. 93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and Pub. L.
95-620, (15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel Use Act
of 1978, Pub. L. 95-620, as amended by Pub. L. 97-35 (42 U.S.C. 8301 et
seq.); Omnibus Budget Reconciliation Act of 1981, Pub. L. 97-35)
(46 FR 59884, Dec. 7, 1981, as amended at 47 FR 15313, 15314, Apr.
9, 1982; 47 FR 17041, Apr. 21, 1982; 47 FR 29210, July 6, 1982; 47 FR
34972, Aug. 12, 1982; 54 FR 52889, Dec. 22, 1989)
1The election provisions are published at 46 FR 48118 (October 1,
1981) and will not be codified in the Code of Federal Regulations.
10 CFR 500.3 Electric regions -- electric region groupings for
reliability measurements under the Powerplant and Industrial Fuel Use
Act of 1978.
(a) The following is a list of electric regions for use with regard
to the Act. The regions are identified by FERC Power Supply Areas
(PSA's) as authorized by section 202(a) of the Federal Power Act except
where noted. They will be reviewed annually by ERA. Each grouping
meets one or more of the following criteria:
(1) Existing centrally dispatched pools and hourly power brokers;
(2) Systems with joint planning and construction agreements;
(3) Systems with coordination agreements in the areas of:
(i) Generation reserve and system reliability criteria;
(ii) Capacity and energy exchange policies;
(iii) Maintenance scheduling; and
(iv) Emergency procedures for dealing with capacity or fuel
shortages; or
(4) Systems within the same National Electric Reliability Council
(NERC) region with historical coordination policies.
(b) The PSA's referred to in the definition of electric regions in
paragraph (a) of this section were first defined by the Federal Power
Commission in 1936. The most recent reference to them is given in the
1970 National Power Survey, Vol. 1, Pg. 1-3-16. In cases where a
petitioner finds an ambiguity in a regional assignment, he shall consult
with DOE for an official determination.
Electric Region Groupings and FERC PSA's:
1. Allegheny Power System (APS) -- 7, except Duquesne Light Company.
2. American Electric Power System (AEP) -- entire AEP System.
3. New England Planning Pool (NEPOOL) -- 1, 2.
4. New York Planning Pool (NYPP) -- 3, 4.
5. Pennsylvania -- New Jersey -- Maryland interconnection (PJM) -- 5,
6.
6. Commonwealth Edison Company -- 14.
7. Florida Coordination Group (FCG) -- 24.
8. Middle South Utilities -- 25.
9. Southern Company -- 22, 23.
10. Gulf States Group -- 35.
11. Tennessee Valley Authority (TVA) -- 20.
12. Virginia -- Carolina Group (VACAR) -- 18, 21.
13. Central Area Power Coordination Group (CAPCO) -- Cleveland
Electric Illuminating Company, Toledo Edison Company, Ohio Edison
Company, Duquesne Light Company.
14. Cincinnati, Columbus, Dayton Group (CCD) -- Cincinnati Gas and
Electric Company, Columbus and Southern Ohio Electric Company, Dayton
Power and Light Company.
15. Kentucky Group -- 19.
16. Indiana Group -- Indiana Utilities except AEP.
17. Illinois -- Missouri Group (ILLMO) -- 15, 40.
18. Michigan Electric Coordinated Systems (MECS) -- 11.
19. Wisconsin -- Upper Michigan Group (WUMS) -- 13.
20. Mid-Continent Area Power Pool (MAAP) -- 16, 17, 26, 27, 28.
21. Missouri -- Kansas Group (MOKAN) -- 24, 29.
22. Oklahoma Group -- 33, 36.
23. Texas Interconnected Systems (TIS) -- 37, 38.
24. Rocky Mountain Power Pool (RMPP) -- 31, 32.
25. Northwest Power Pool (NWPP) -- 30, 42, 43, 44, 45.
26. Arizona -- New Mexico Group -- 39, 48 within Arizona. in Nevada
and California.
27. Southern California -- Nevada -- 47, 48.
28. Northern California -- Nevada -- 46.
29. Alaska (non-interconnected systems to be considered separately)
-- 49.
30. Idaho -- Utah Group -- 41.
10 CFR 500.3 Pt. 501
10 CFR 500.3 PART 501 -- ADMINISTRATIVE PROCEDURES AND SANCTIONS
10 CFR 500.3 Subpart A -- General Provisions
Sec.
501.1 Purpose and scope.
501.2 Prepetition conference.
501.3 Petitions.
501.4 -- 501.5 (Reserved)
501.6 Service.
501.7 General filing requirements.
501.8 (Reserved)
501.9 Effective date of orders or rules.
501.10 Order of precedence.
501.11 Address for filing documents.
501.12 Public files.
501.13 Appeal.
501.14 Notice to Environmental Protection Agency.
10 CFR 500.3 Subpart B -- (Reserved)
10 CFR 500.3 Subpart C -- Written Comments, Public Hearings and
Conferences During Administrative Proceedings
501.30 Purpose and scope.
501.31 Written comments.
501.32 Conferences (other than petition conferences).
501.33 Request for a public hearing.
501.34 Public hearing.
501.35 Public file.
10 CFR 500.3 Subpart D -- Subpoenas, Special Report Orders, Oaths and
Witnesses
501.40 Issuance.
10 CFR 500.3 Subpart E -- Prohibition Rules and Orders
501.50 Policy.
501.51 Prohibitions by order -- electing powerplants.
501.52 Prohibitions by order -- certifying powerplants.
501.53-56 (Reserved)
10 CFR 500.3 Subpart F -- Exemptions and Certifications
501.60 Purpose and scope.
501.61 Certification Contents.
501.62 Petition contents.
501.63 Notice of the commencement of an administrative proceeding on
an exemption petition.
501.64 Publication of notice of availability of tentative staff
analysis.
501.65 Publication of notice of availability of draft EIS.
501.66 OFE evaluation of the record, decision and order.
501.67 Petition redesignations.
501.68 Decision and order.
501.69 Judicial review.
10 CFR 500.3 Subpart G -- Requests for Modification or Rescission of a
Rule or Order
501.100 Purpose and scope.
501.101 Proceedings to modify or rescind a rule or order.
501.102 OFE evaluation of the record, decision and order for
modification or rescission of a rule or order.
501.103 OFE decision.
10 CFR 500.3 Subpart H -- Requests for Stay
501.120 Purpose and scope.
501.121 Filing and notice of petitions for stays.
501.122 Contents.
501.123 Evaluation of the record.
501.124 Decision and order.
10 CFR 500.3 Subpart I -- Requests for Interpretation
501.130 Purpose and scope.
501.131 Filing a request for interpretation.
501.132 Contents of a request for interpretation.
501.133 DOE evaluation.
501.134 Issuance and effect of interpretations.
10 CFR 500.3 Subpart J -- Rulings
501.140 Purpose and scope.
501.141 Criteria for issuance.
501.142 Modification or rescission.
501.143 Comments.
10 CFR 500.3 Subpart K -- Enforcement
501.160 Purpose and scope.
501.161 Filing a complaint.
501.162 Contents of a complaint.
501.163 OFE evaluation.
501.164 Decision to initiate enforcement proceedings.
501.165 Commencement of enforcement proceedings.
501.166 Hearings and conferences.
501.167 Fuel use order.
10 CFR 500.3 Subpart L -- Investigations, Violations, Sanctions and
Judicial Actions
501.180 Investigations.
501.181 Sanctions.
501.182 Injunctions.
501.183 Citizens suits.
10 CFR 500.3 Subpart M -- Use of Natural Gas or Petroleum for Emergency
and Unanticipated Equipment Outage Purposes
501.190 Purpose and scope.
501.191 Use of natural gas or petroleum for certain unanticipated
equipment outages and emergencies defined in section 103(a)(15)(B) of
the Act.
501.192 (Reserved)
Authority: Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565 (42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel
Use Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et
seq.); Energy Security Act, Pub. L. 96-294, 94 Stat. 611 (42 U.S.C.
8701 et seq.); E.O. 1209, 42 FR 46267, September 15, 1977.
Source: 46 FR 59889, Dec. 7, 1981, unless otherwise noted.
OMB Control No. : 1903-0075. See 46 FR 63209, Dec. 31, 1981.
Editorial Note: Nomenclature changes to this part appear at 54 FR
52891, Dec. 22, 1989.
10 CFR 500.3 Subpart A -- General Provisions
10 CFR 501.1 Purpose and scope.
Part 501 establishes the procedures to be used in proceedings before
DOE under parts 500-508 of this chapter except as otherwise provided.
10 CFR 501.2 Prepetition conference.
(a) Owners and operators of powerplants may request a prepetition
conference with OFE for the purpose of discussing the applicability of
10 CFR parts 503 and 504 to their situations and the scope of any
exemption or other petition that OFE would accept as adequate for filing
purposes.
(b) The owner or operator who requests a prepetition conference may
personally represent himself or may designate a representative to appear
on his behalf. A prepetition conference or a request for a prepetition
conference does not commence a proceeding before OFE.
(c) If OFE agrees to waive any filing requirements under 501.3(d), a
memorandum of record stating this fact will be furnished to the
potential petitioner within thirty (30) days after the conference.
Copies of all applicable memoranda of record must be attached to any
subsequently-filed petition.
(d) A record of all prepetition conferences will be included in the
public file. OFE may provide for the taking of a formal transcript of
the conference and the transcript will be included in the public file.
(46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52891, Dec. 22, 1989)
10 CFR 501.3 Petitions.
(a) Filing of petitions. Petitions for exemptions are to be filed
with OFE at the address given in 501.11.
(b) Acceptance of petition. (1) Upon acceptance (as distinguished
from filing) of the petition, OFE shall publish in the Federal Register
a Notice of Acceptance of Petition or, in the case of an exemption by
certification, a Notice of Acceptance and Availability of Certification,
signifying that an exemption proceeding has commenced.
(2) OFE will notify each petitioner in writing within thirty (30)
days of receipt of the petition that it has been accepted or rejected
and, if rejected, the reasons therefor.
(3) A petition, including supporting documents, will be accepted if
the information contained appears to be sufficient to support an OFE
determination. Additional information may be requested during the
course of the proceeding, and failure to respond to such a request may
ultimately result in denial of the requested exemption.
(4) Acceptance of petition does not constitute a determination that
the requested exemption will be granted.
(c) Rejection of petition. (1) OFE will reject a petition if it does
not meet the information of certification requirements established for
the relevant exemptions under parts 503 and 504 of this chapter. A
written explanation of the reasons for rejection will be furnished with
notification of the rejection.
(2) A timely-filed petition rejected as inadequate will not be
rendered untimely if resubmitted in amended form within ninety (90) days
of the date of rejection.
(3) OFE will, within thirty (30) days of receipt of a petition that
is found to be incomplete due to minor deficiencies, notify the
petitioner of the deficiencies and allow ninety (90) days from the date
of notification to cure the specified deficiencies. The failure to cure
the deficiencies during this time may result in denial of the requested
exemption.
(d) Waiver of filing requirements. Upon its own motion or at the
request of a petitioner, OFE may waive some or all of the regulatory
requirements if the purposes of FUA would be best achieved by doing so.
501.4 -- 501.5 (Reserved)
10 CFR 501.6 Service.
(a) DOE will serve all orders, notices interpretations or other
documents that it is required to serve, personally or by mail, unless
otherwise provided in these regulations.
(b) DOE will consider service upon a petitioner's duly authorized
representative to be service upon the petitioner.
(c) Service by mail is effective upon mailing.
(54 FR 52891, Dec. 22, 1989)
10 CFR 501.7 General filing requirements.
Except as indicated otherwise, all documents required or permitted to
be filed with OFE or DOE in connection with a proceeding under parts 503
and 504 shall be filed in accordance with the following provisions:
(a) Filing of documents. (1) Documents including, but not limited
to, applications, requests, complaints, petitions (including petitions
for exemption), and other documents submitted in connection therewith,
filed with OFE are considered to be filed upon receipt.
(2) Notwithstanding the provisions of paragraph (a)(1) of this
section, an application for modification or rescission in accordance
with subpart G of this part, a reply to a notice of violation, a
response to a 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.
(3) Timeliness. Documents are to be filed with the appropriate DOE
or OFE office listed in 501.11. Documents that are to be considered
filed upon receipt under paragraph (a)(1) of this section and that are
received after regular business hours are deemed filed on the next
regular business day. Regular business hours are 8 a.m. to 4:30 p.m.
(4) Computation of time. In computing any period of time prescribed
or allowed by FUA, these regulations or by an order, 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.
(5) 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
and the order, notice, interpretation or other document is served by
mail, three (3) days shall be added to the prescribed period.
(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
upon good cause shown.
(7) Signing. All applications, petitions, requests, comments, and
other documents that are required to be signed, shall be signed by the
person filing the document or a duly authorized representative. Any
application, 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 OFE
form otherwise requires. (A false certification is unlawful under the
provisions of 18 U.S.C. 1001 (1970).)
(8) Labeling. An application, petition, or other request for action
by DOE or OFE should be clearly labeled according to the nature of the
action involved, e.g., ''Petition for Temporary Exemption;'' ''Petition
for Extension (or Renewal) of Temporary Exemption,'' both on the
document and on the outside of the envelope in which the document is
transmitted.
(9) Obligation to supply information. A person who files an
application, petition, complaint, or other request for action is under a
continuing obligation during the proceeding to provide DOE or OFE 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, or
request for action that is subsequently filed by that person with any
DOE office or OFE office.
(10) The same or related matters. In filing a petition or other
document requesting OFE action, the person must state whether, to the
best of his knowledge, the same or a related issue, act or transaction
has been or presently is being considered or investigated by a DOE
office, other Federal agency, department or instrumentality, or a State
or municipal agency.
(11) Request for confidential treatment. (i) If any person filing a
document with DOE or OFE claims that some or all of 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); is
information referred to in 18 U.S.C. 1905; or is otherwise exempt by
law from public disclosure, and if such person requests DOE or OFE not
to disclose such information, such person shall make a filing in
accordance with paragraph (b)(2) of this section. 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 a document is not so filed, OFE may assume that there
is no objection to public disclosure of the document in its entirety,
unless the person subsequently files a claim of confidentiality prior to
public disclosure of the document.
(ii) DOE or OFE retains the right to make its own determination with
regard to any claim of confidentiality. Notice of the decision by DOE
or OFE to deny such claim, in whole or in part, and an opportunity to
respond or take other appropriate action to avoid release shall be given
to a person claiming confidentiality of information no less than seven
(7) days prior to its public disclosure.
(iii) The above provisions in paragraphs (a)(11) (i) and (ii) of this
section do not apply to information submitted on OFE forms that contain
their own instructions concerning the treatment of confidential
information.
(12) Separate applications, petitions or requests. Each application,
petition, or request for DOE or OFE 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.
(b) Number of documents to be filed. (1) A petitioner must file an
executed original and fourteen (14) copies of all exemption requests
submitted to DOE. For certification requests, an original and three (3)
copies shall be submitted.
(2) Where the petitioner requests confidential treatment of some or
all of the information submitted, an original and eleven (11) copies of
the confidential document and three (3) copies of the document with
confidential material deleted must be filed.
(46 FR 59889, Dec. 7, 1981, as amended at 47 FR 15314, Apr. 9, 1982;
54 FR 52891, Dec. 22, 1989)
501.8 (Reserved)
10 CFR 501.9 Effective date of orders or rules.
(a) When OFE issues a rule or order imposing a prohibition or
granting an exemption (or permit) under FUA, the rule or order will be
effective sixty (60) days after publication in the Federal Register,
unless it is stayed, modified, suspended or rescinded.
(b) If the appropriate State regulatory authority has not approved a
powerplant for which a petition has been filed, such exemption, to the
extent it applies to the prohibition under section 201 of FUA against
construction without the capability of using coal or another alternate
fuel, shall not take effect until all approvals required by such State
regulatory authority which relate to construction have been obtained.
(54 FR 52891, Dec. 22, 1989)
10 CFR 501.10 Order of precedence.
If there is any conflict or inconsistency between the provisions of
this part and any other provisions or parts of this chapter, except for
general procedures which are unique to part 515 of this chapter, the
provisions of this part will control respect to procedure.
(54 FR 52891, Dec. 22, 1989)
10 CFR 501.11 Address for filing documents.
Send all petitions, self-certifications and written communications to
the following address: Office of Fossil Energy, Office of Fuels
Programs, Coal and Electricity Division, Mail Code FE-52, 1000
Independence Avenue, SW., Washington, DC 20585.
(54 FR 52891, Dec. 22, 1989)
10 CFR 501.12 Public files.
DOE will make available at the Freedom of Information reading room,
Room 1E190, 1000 Independence Avenue SW., Washington, DC for public
inspection and copying any information required by statute and any
information that OFE determines should be made available to the public.
(54 FR 52891, Dec. 22, 1989)
10 CFR 501.13 Appeal.
There is no administrative appeal of any final administrative action
to which this part applies.
10 CFR 501.14 Notice to Environmental Protection Agency.
A copy of any proposed rule or order that imposes a prohibition,
order that imposes a prohibition, or a petition for an exemption or
permit, shall be transmitted for comments, if any, to the Administrator
and the appropriate Regional Administrator of the Environmental
Protection Agency (EPA). The Administrator of EPA shall be given the
same opportunity to comment and question as is given other interested
persons.
(54 FR 52891, Dec. 22, 1989)
10 CFR 501.14 Subpart B -- (Reserved)
10 CFR 501.14 Subpart C -- Written Comments, Public Hearings and Conferences During Administrative Proceedings
10 CFR 501.30 Purpose and scope.
This subpart establishes the procedures for requests for and the
conduct of public hearings; for submission of written comments; and
for requests for and conduct of conferences pursuant to an
administrative proceeding before OFE. Hearings shall be convened at the
request of any interested person, in accordance with section 701(d) of
FUA, and shall be held at a time and place to be decided by the
Presiding Officer.
10 CFR 501.31 Written comments.
(a) New facilities. Except as may be provided elsewhere in these
regulations, OFE shall provide a period of at least forty-five (45)
days, commencing with publication of the Notice of Acceptance of
Petition, of in the case of certification exemptions, Notice of
Acceptance and availability of Certification, in the Federal Register in
accordance with 501.63(a), for submission of written comments
concerning a petition for an exemption. Written comments shall be made
in accordance with 501.7.
(b) Existing facilities. Except as may be provided elsewhere in
these regulations, OFE shall provide a period of at least 45 days for
submission of written comments concerning a proposed prohibition rule or
order or a petition for a permit. In the case of a proposed prohibition
rule or order issued to an existing electing powerplant, OFE shall also
provide for a period of at least 45 days for submission of written
comments concerning a Tentative Staff Analysis. This period shall
commence on the day after publication of the Notice of Availability of
the Tentative Staff Analysis in the Federal Register. In the case of
prohibition order proceedings for certifying powerplants under section
301 of FUA, as amended, OFE shall provide a period of at least 45 days,
beginning the day after the Notice of Acceptance of certification is
published, for submission of written comments concerning the
certification and OFE's proposed prohibition order, and requests for
public hearings. Prohibition order proceedings under section 301, as
amended by OBRA, will have only one period of 45 days, since no
Tentative Staff Analysis will be prepared. The comment period may be
extended by OFE in accordance with 501.7. See 501.52(b) of this part
for further information with respect to the comment period. Written
comments shall be filed in accordance with 501.7.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565
(42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of
1978, Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et seq.); Omnibus
Budget Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR
46267, Sept. 15, 1977)
(46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50848, Nov. 10, 1982;
54 FR 52892, Dec. 22, 1989)
10 CFR 501.32 Conferences (other than prepetition conferences).
(a) At any time following commencement of a proceeding before OFE, an
interested person may request a conference with the staff of OFE to
discuss a petition, permit or any other issue pending before OFE. The
request for a conference should generally be in writing and should
indicate the subjects to be covered and should describe the requester's
interest in the proceeding. Conferences held after the commencement of
an administrative proceeding before OFE shall be convened at the
discretion of OFE or the Presiding Officer.
(b) When OFE convenes a conference in accordance with this section,
any person invited may present views as to the issue or issues involved.
Documentary evidence may be submitted at the conference and such
evidence, to the extent that it is not deemed to be confidential, will
be included in the administrative record. OFE will not normally have a
transcript of the conference prepared but may do so at its discretion.
(c) Because a conference is solely for the exchange of views incident
to a proceeding, there will be no formal report or findings by OFE
unless OFE in its discretion determines that the preparation of a report
or findings would be advisable. OFE will, however, place in the public
file a record of any conference.
10 CFR 501.33 Request for a public hearing.
(a) New facilities. In the case of a petition for an exemption under
title II of FUA, any interested person may submit a written request that
OFE convene a public hearing in accordance with section 701 of FUA no
later than forty-five (45) days after publication of either the Notice
of Acceptance of a petition, or in the case of a certification
exemption, the publication of the Notice of Acceptance of Certification.
This time period may be extended at the discretion of OFE.
(b) Existing powerplants. In the case of a petition for an exemption
from a prohibition imposed by a final rule or order issued by OFE to an
electing powerplant under former sections of title III of FUA or a
petition for a permit under 504.1, any interested person may submit a
written request that OFE convene a public hearing in accordance with
section 701 of FUA within 45 days after the notice of the filing of a
petition is published in the Federal Register. In the case of a
proposed prohibition rule or order issued to an electing powerplant
under former section 301, the 45 day period in which to request a public
hearing shall commence upon the publication of the Notice of
Availability of the Tentative Staff Analysis. In the case of a proposed
prohibition order to be issued to certifying powerplants under section
301 of FUA, as amended, the 45 day period in which to request a public
hearing commences upon publication of the Notice of Acceptance of
Certification. This time limit may be extended at the discretion of OFE
in accordance with 501.7.
(c) Contents of request. A request for a public hearing must be in
writing and must include a description of the requesting party's
interest in the proceeding and a statement of the issues involved. The
request should, to the extent possible, identify any witnesses that are
to be called, summarize the anticipated testimony to be given at the
hearing, and outline questions that are to be posed.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565
(42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of
1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus
Budget Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR
46267, Sept. 15, 1977)
(46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50848, Nov. 10, 1982;
54 FR 52892, Dec. 22, 1989)
10 CFR 501.34 Public hearing.
(a) A public hearing under this subsection is for the purpose of
insuring that all issues are fully and properly developed, but is not a
formal adjudicatory hearing subject to the provisions of 5 U.S.C. 554
and 556.
(b) Opportunity to be heard at a public hearing. (1) Any interested
person, may request, and OFE will provide, an opportunity to present
oral or written data, views and arguments at a public hearing on any
proposed prohibition rule or order, or on any petition for an exemption
or permit. An interested person may file a request to be listed as a
party to a hearing on the service list prepared by the Presiding Officer
pursuant to 501.34(d) of this part.
(2) Participants at the public hearing will have an opportunity to
present oral or written data, views and arguments.
(3) A request for a public hearing may be withdrawn by the requestor
at any time. If other persons have requested to participate as parties
in the public hearing, OFE may cancel the hearing only if all parties
agree to cancellation. OFE will give notice, whenever possible, in the
Federal Register of the cancellation of any hearings for which there has
been prior notice.
(c) Presiding Officer. OFE will appoint a Presiding Officer to
conduct the public hearing.
(d) Powers of the Presiding Officer. The Presiding Officer is
responsible for orderly conduct of the hearing and for certification of
the record of the public hearing. The Presiding Officer will not
prepare any recommended findings, conclusions, or any other
recommendations for disposition of a particular case, except those of a
procedural nature. The Presiding Officer has, but is not limited to the
following powers:
(1) Administer oaths, affirmations and protective orders;
(2) Issue administrative subpoenas and rule on motions to modify or
withdraw subpoenas that he has issued;
(3) Rule on questions as to relevance and materiality of evidence;
(4) Regulate the course of the public hearing;
(5) Hold conferences for the simplification of issues by consent of
the parties;
(6) Require submission of evidence in writing where appropriate;
(7) Establish service lists;
(8) Dispose of procedural requests and similar matters; and
(9) Take other actions authorized by these rules.
The Presiding Officer may also limit the number of witnesses to be
presented by any party and may impose reasonable time limits for
testimony. The Presiding Officer shall establish and maintain a service
list that contains the names and addresses of all parties to the OFE
proceeding. At the time the Presiding Officer certifies the record, he
will provide the staff of OFE with an index of the issues addressed in
the record.
(e) Notice. OFE will convene a public hearing only after publishing
a notice in the Federal Register that states the time, place and nature
of the public hearing.
(f) Opportunity to question at the public hearing. At any public
hearing requested pursuant to paragraph (b) of this section, with
respect to disputed issues of material fact, OFE will provide any
interested person an opportunity to question:
(1) Other interested persons who make oral presentations;
(2) Employees and contractors of the United States who have made
written or oral presentations or who have participated in the
development of the proposed rule or order or in the consideration of the
petition for an exemption or permit; and
(3) Experts and consultants who have provided information to any
person who makes an oral presentation and which is contained in or
referred to in such presentation.
(g) OFE encourages persons who wish to question Government witnesses
to submit their questions at least ten (10) days in advance of the
hearing.
(h) The Presiding Officer will allow questions by any interested
person to be asked of those making presentations or submitting
information, data, analyses or views at the hearing. The Presiding
Officer may restrict questioning if he determines that such questioning
is duplicative or is not likely to result in a timely and effective
resolution of issues pending in the administrative proceeding for which
the hearing is being conducted.
(i) The Presiding Officer or OFE may exercise discretion to control a
hearing by denying, temporarily or permanently, the privilege of
participating in a particular OFE hearing if OFE finds, for example,
that a person:
(1) Has knowingly made false or misleading statements, either orally
or in writing;
(2) Has knowingly filed false affidavits or other writings;
(3) Lacks the specific authority to represent the person seeking an
OFE action; or
(4) Has disrupted or is disrupting a hearing.
(j) Evidence. (1) The Presiding Officer is responsible for orderly
submission of information, data, materials, views or other evidence into
the record of the public hearing. The Presiding Officer may exclude any
evidence that is irrelevant, immaterial or unduly repetitious. Judicial
rules of evidence do not apply.
(2) Documentary material must be of a size consistent with ease of
handling, transportation and filing, and a reasonable number of copies
should be made available at the public hearing for the use of interested
persons. An original and fourteen (14) copies shall be furnished to the
Presiding Officer and one copy to each party listed on the service list.
Large exhibits that are used during the hearing must be provided on no
larger than 11 1/2''x14'' legal size paper if they are to be submitted
into the hearing record.
(k) Hearing record. OFE will have a verbatim transcript made of the
public hearing. The hearing record shall remain open for a period of
fourteen (14) days following the public hearing, unless extended by OFE,
during which time the participants at the hearing may submit additional
written statements which will be made part of the administrative record
and will be served by the Presiding Officer upon those parties listed on
the service list. OFE may also request additional information, data or
analysis following the hearing in order to resolve disputed issues in
the record. If OFE receives or obtains any relevant information or
evidence that is placed in the record after the close of the public
hearing or comment period, it will so notify all participants, and allow
an additional fourteen (14) days for submission of evidence in rebuttal.
In addition, OFE may, in its discretion, re-open the hearing at the
request of a party or participant, to permit further rebuttal of
evidence or statements submitted to OFE and made part of the hearing
record after the close of the hearing. The transcript, together with
any written comments submitted in the course of the proceeding, will be
made part of the record available for public inspection and copying at
the OFE Public Information Office, as provided in 501.12.
10 CFR 501.35 Public file.
(a) Contents. The public file shall consist of the rule, order, or
petition, with supporting data and supplemental information, and all
data and information submitted by interested persons. Materials which
are claimed by any party to be exempt from public disclosure under the
Freedom of Information Act (5 U.S.C. 552) shall be excised from the
public file provided OFE has made a determination that the material is
confidential in accordance with 501.7(a)(11) of this part.
(b) Availability. The public file shall be available for inspection
at Room 1E190, 1000 Independence Avenue SW., Washington, DC.
Photocopies may be made available, on request. The charge for such
copies shall be made in accordance with a written schedule.
(46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52892, Dec. 22, 1989)
10 CFR 501.35 Subpart D -- Subpoenas, Special Report Orders, Oaths and Witnesses
10 CFR 501.40 Issuance.
(a) Authority. As authorized by section 711 of FUA and section 645
of the DEOA, the Administrator, his duly authorized agent or a Presiding
Officer may, in accordance with 10 CFR 205.8, sign, issue, and serve
subpoenas; issue special report orders (SRO); administer oaths and
affirmations; take sworn testimony, compel attendace of and sequester
witnesses; control the dissemination of any record of testimony taken
pursuant to this section; and subpoena and reproduce books, papers,
correspondence, memoranda, contracts, agreements, or other relevant
records of tangible evidence including, but not limited to, information
retained in computerized or other automated systems in the possession of
the subpoenaed person.
(b) Petition to withdraw or modify. Prior to the time specified for
compliance in the subpoena or SRO, the person to whom the subpoena or
SRO is directed may apply for its withdrawal or modification as provided
in 10 CFR 205.8, except that if the subpoena or SRO is issued by a duly
appointed Presiding Officer, the request to withdraw or modify must be
addressed to that Presiding Officer, and its grant or denial will be
decided by him.
10 CFR 501.40 Subpart E -- Prohibition Rules and Orders
10 CFR 501.50 Policy.
Except in conjunction with a prohibition order requested by the
intended recipient, OFE shall not propose to prohibit or prohibit by
rule or order the use of petroleum or natural gas either as a primary
energy source or in amounts in excess of the minimum amount necessary to
maintain reliability of operation consistent with reasonable fuel
efficiency in an existing installation unless and until OFE adopts rules
establishing regulatory requirements governing the issuance of such
orders and rules in accordance with the applicable procedural and
substantive requirements of law.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565
(42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of
1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus
Budget Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR
46267, Sept. 15, 1977)
(47 FR 50848, Nov. 10, 1982)
10 CFR 501.51 Prohibitions by order -- electing powerplants.
(a) OFE may prohibit by order the use of petroleum or natural gas as
a primary energy source or in amounts in excess of the minimum amount
necessary to maintain reliability of operation consistent with
reasonable fuel efficiency in an electing powerplant, if:
(1) That facility has not been identified as a member of a category
subject to a final rule at the time of the issuance of such order; and
(2) The requirements of 504.6 have been met.
(b) Notice of order and public participation. (1) OFE may hold a
conference with the proposed order recipient prior to issuing the
proposed order.
(2) Pursuant to section 701 of FUA, prior to the issuance of a final
order to an electing powerplant, OFE shall publish a proposed order in
the Federal Register together with a statement of the reasons for the
order. In the case of a proposed order that would prohibit the use of
petroleum or natural gas as a primary energy source, the finding
required by former section 301(b)(1) of the Act shall be published with
such proposed order.
(3) OFE shall provide a period for the submission of written comments
of at least three months after the date of the proposed order. During
this period, the recipient of the proposed order and any other
interested person must submit any evidence that they have determined at
that time to support their respective positions as to each of the
findings that OFE is required to make under section 301(b) of the Act.
A proposed order recipient may submit additional new evidence at any
time prior to the close of the public comment period which follows
publication of the Tentative Staff Analysis or prior to the close of the
record of any public hearing, whichever occurs later. A request by the
proposed order recipient for an extension of the three-month period may
be granted at OFE's discretion.
(4) Subsequent to the end of the comment period, OFE will issue a
notice of whether OFE intends to proceed with the prohibition order
proceeding.
(5) An owner or operator of a facility that may be subject to an
order may demonstrate prior to issuance of a final prohibition order
that the facility would qualify for an exemption if the prohibition had
been established by rule. OFE will not delay the issuance of a final
prohibition order or stay the effective date of such an order for the
purpose of determining whether a proposed order recipient qualifies for
a particular exemption unless the demonstration or qualification is
submitted prior to or during the second three-month comment period,
commencing after issuance of a notice of intention to proceed, or unless
materials submitted after the period (i) could not have been submitted
during the period through the exercise of due diligence, (ii) address
material changes in fact or law occurring after the close of the period,
or (iii) consist of amplification or rebuttal occasioned by the
subsequent course of the proceeding. A request by the proposed order
recipient for an extension of this time period may be granted at OFE's
discretion.
(6) Subsequent to the end of the second three (3) month period, OFE
will, if it intends to issue a final prohibition order, prepare and
issue a Notice of Availability of a Tentative Staff Analysis.
Interested persons wishing a hearing must request a hearing within
forty-five (45) day after issuance of the Notice of Availability of the
Tentative Staff Analysis. During this forty-five (45) days period,
interested persons may also submit written comments on the Tentative
Staff Analysis.
(7) If a hearing has been requested, OFE shall provide interested
persons with an opportunity to present oral data, views and arguments at
a public hearing held in accordance with subpart C of this part. The
hearing will consider the findings which OFE must make in order to issue
a final prohibition order and any exemption for which the proposed order
recipient submitted its demonstration in accordance with paragraph
(b)(5) of this section.
(8) Upon request by the receipient of the proposed prohibition order,
the combined public comment periods provided for in this section may be
reduced to a minimum of forty-five (45) days from the time of
publication of the proposed order.
(9) OFE may terminate a prohibition order proceeding at any time
prior to the date upon which a final order shall become effective.
Should OFE terminate the proceeding, it will notify the proposed order
recipient, and publish a notice in the Federal Register.
(c) Decision to issue a final order. (1) OFE will base its
determination to issue an order on consideration of the whole record or
those parts thereof cited by a party and supported by and in accordance
with reliable, probative and substantial evidence.
(2) OFE shall include in the final order a written statement of the
pertinent facts, a statement of the basis upon which the final order is
issued, a recitation of the conclusions regarding the required findings
and qualifications for exemptions. The final order shall state the
effective date of the prohibition contained therein. If it is
demonstrated that the facility would have been granted a temporary
exemption, the effective date of the prohibition contained in the final
order shall be delayed until such time as the temporary exemption would
have terminated. If it is demonstrated that a facility will need a
period of time to comply with the final order, the effective date of the
prohibition contained in the final order may be delayed, in OFE's
discretion, so as to allow an order recipient to comply with the final
order.
(3) OFE will enclose with a copy of the final order, where
appropriate, a schedule of steps that should be taken by a stated date
(a compliance schedule) to ensure that the affected facility will be
able to comply with the prohibitions stated in the order by the
effective date of the prohibition contained in the final order. The
compliance schedule may require the affected person to take steps with
regard to a unit 60 days after service of the final order.
(4) A copy of the final order and a summary of the basis therefore
will be published in the Federal Register. The order will become
effective 60 days after publication in the Federal Register.
(d) Request for order. (1) A proceeding for issuance of a
prohibition order to a specific unit may be commenced by OFE, in its
sole discretion, in response to a request for an order filed by the
owner or operator of a facility.
(2) A petition requesting OFE to commence a prohibition order
proceeding should include the following information for all units to be
covered by the prohibition order:
(i) A statement of the reasons the owner or operator is seeking the
issuance of a prohibition order; and
(ii) Sufficient information for OFE to make the findings required by
section 301(b) of FUA.
(3) If OFE determines to accept the request, OFE shall publish a
proposed order in the Federal Register together with a statement of the
reasons for the order.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565
(42 U.S.C. 7101 et seq.); Energy Supply and Environmental Coordination
Act of 1974; Pub. L. 93-319, as amended by Pub. L. 94-163, Pub. L.
95-70, (15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel Use Act
of 1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.);
Omnibus Budget Reconciliation Act of 1981, (Pub. L. 97-35); E.O. 12009,
42 FR 46267, Sept. 15, 1977)
(46 FR 59889, Dec. 7, 1981, as amended at 47 FR 17042, Apr. 21, 1982;
47 FR 50848, Nov. 10, 1982; 54 FR 52892, Dec. 22, 1989)
10 CFR 501.52 Prohibitions by order -- certifying powerplants.
(a) OFE may prohibit by order the use of petroleum or natural gas as
a primary energy source or in amounts in excess of the minimum amount
necessary to maintain reliability of operation consistent with
maintaining reasonable fuel efficiency in an existing powerplant if the
owner or operator of the powerplant certifies, and OFE concurs in such
certification in accordance with the requirements of 504.5, 504.6 and
504.8.
(b) Notice of order and participation. (1) OFE may hold a conference
with the proposed order recipient, at the recipient's election, prior to
issuing the proposed order. The conference may resolve any questions
regarding the certification required by section 301 of the Act, as
amended, and 504.5, 504.6, and 504.8, and OFE's review and concurrence
therein.
(2) Pursuant to section 701(b) of FUA, prior to the issuance of a
final order to a certifying powerplant owner or operator, OFE must
publish in the Federal Register, a proposed prohibition order stating
the reasons for such order. OFE will review all of the information
submitted by a proposed order recipient within 60 days after receipt by
OFE. If the certification is complete, OFE will, within 30 days after
the end of the 60 day review period, publish in the Federal Register a
Notice of Acceptance of certification together with a proposed
prohibition order stating therein the reasons for such order. This
commences the prohibition order proceeding. If OFE does not believe it
is able to concur in the certification, OFE shall notify the proposed
order recipient and shall publish a Notice of Proposed Non-Concurrence
in the Federal Register within 30 days after the end of the 60 day
review period. If OFE finds that the certification with compliance
schedule is incomplete, OFE will notify the proposed prohibition order
recipient as to the deficiencies, and provide an additional period of 30
days for the certification to be amended and resubmitted. If a complete
certification is not submitted within this period, the proceeding shall
be terminated in accordance with 501.52(b)(5). OFE will notify the
proposed order recipient and other parties to the proceeding of the
termination and publish a notice in the Federal Register. OFE, on its
own motion, may extend any period of time by publishing a notice to that
effect in the Federal Register.
(3) The publication of the Notice of Acceptance or Notice of Proposed
Non-Concurrence commences a period of 45 days during which interested
persons may submit written comments or request a public hearing. During
this period, the recipient of the proposed order and any other
interested person may submit any evidence that they have available
relating to the proposed order, the certification or the concurrence
that OFE must make. A proposed order recipient may submit additional
new evidence at any time prior to the close of the public comment period
which follows the commencement of the proceeding or prior to the close
of the record of any public hearing, whichever occurs later. A request
for an extension of the 45 day period may be granted at OFE's
discretion. In the case of a Notice of Acceptance, as set forth in
504.9, no final prohibition order can be issued until any necessary
environmental review pursuant to the National Environmental Policy Act
of 1969, 42 U.S.C 4321 et seq. (NEPA) has been completed. Upon
completion of the NEPA review and unless OFE determines on the basis of
the record of the proceeding that the certification fails to meet the
requirements of 504.5, 504.6, and 504.8, OFE shall publish a final
prohibition order, together with the information required by paragraph
(c) of this section. In the case of a Notice of Proposed
Non-Concurrence, at the end of the 45 day comment period, OFE will
notify the proposed order recipient and parties to the proceeding and
publish a final Notice of Non-Concurrence in the Federal Register, if
OFE determines it cannot concur in the certification based upon
additional information submitted during the proceeding. If, at the end
of the 45 day period, OFE believes it can concur in the certification,
OFE will notify the proposed order recipient and parties to the
proceeding and publish a Notice of Acceptance followed by a new 45 day
comment period.
(4) If a hearing has been requested, OFE shall provide interested
persons with an opportunity to present oral data, views and agruments at
a public hearing held in accordance with subpart C of this part. The
hearing may consider, among other matters, the sufficiency of the
certification of the owner or operator of the powerplant required by
section 301 of FUA, as amended, and 504.5, 504.6, and 504.8 of these
regulations.
(5) OFE may terminate a prohibition order proceeding at any time
prior to the date upon which a final prohibition order is issued
whenever OFE believes, from any information contained in the record of
the proceeding, that the certification does not meet the requirements of
section 301 of the Act, as amended, or 504.5, 504.6, and 504.8 of
these regulations. If OFE terminates the proceeding or publishes a
final Notice of Non-Concurrence, or the proposed order recipient fails
to submit a complete certification, OFE will notify the proposed order
recipient and other parties to the proceeding and publish a notice in
the Federal Register. In such event, the proposed order recipient may
submit a new certification under any provision of section 301 of the
Act, as amended, at a later date. Specifically, a Notice of
Non-Concurrence under either section 301(b) or 301(c) shall not affect a
proposed order recipient's ability to make a certification under the
other subsection.
(c) Record and decision to issue a final order. (1) OFE will base
its determination to issue an order on consideration of the whole record
or those parts thereof cited by a party and supported by and in
accordance with reliable, probative and substantial evidence.
(2) OFE shall include in the final order a written statement of the
basis upon which the final order is issued, and its concurrence in the
required certification. A copy of the final order and a summary of the
basis therefor will be published in the Federal Register. While the
prohibition order is final for purposes of judicial review under section
702 of FUA, the prohibitions contained in the final order shall not
become effective for purposes of amendment under section 301(d) of FUA,
as amended, and 501.52(d) of these regulations until the effective date
of the prohibitions stated in the order, or, where the order is subject
to one or more conditions subsequent listed in the prohibition order
compliance schedule, until all its conditions are met.
(d) Amendment to certifications under 504.5 and 504.6. The proposed
prohibition order recipient may amend its compliance schedule under
504.5(d), or its certification under section 301 of FUA, as amended, and
504.5, 504.6 and 504.8 of these regulations in order to take into
account changes in relevant facts and circumstances at any time prior to
the effective date of the prohibitions contained in the final
prohibition order.
(e) Rescission of prohibition orders. The rescission or modification
of final prohibition orders issued to existing electric powerplants will
be governed by the procedure in 501.101 of these regulations.
(Approved by the Office of Management and Budget under control number
1903-0077)
(Department of Energy Organization Act, Pub. L. 95-91, 42 U.S.C.
7101 et seq.; Energy Supply and Environmental Coordination Act of 1974,
Pub. L. 93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and Pub. L.
95-620, 15 U.S.C. 719 et seq.; Powerplant and Industrial Fuel Use Act of
1978, Pub. L. 95-620, as amended by Pub. L. 97-35, 42 U.S.C. 8301 et
seq.; Omnibus Budget Reconciliation Act of 1981, (Pub. L. 97-35))
(47 FR 17042, Apr. 21, 1982)
501.53-56 (Reserved)
10 CFR 501.52 Subpart F -- Exemptions and Certifications
10 CFR 501.60 Purpose and scope.
(a) (1) If the owner or operator plans to construct a new baseload
powerplant and the unit will not be in compliance with the prohibition
contained in section 201(a) of FUA, this subpart establishes the
procedures for filing a petition requesting a temporary or permanent
exemption under, respectively, sections 211 and 212 of FUA.
(2) Self-certification alternative. If the owner or operator plans
to construct a new baseload powerplant not in compliance with the
prohibitions contained in section 201(a) of FUA, this subpart
establishes the procedures for the filing of a self-certification under
section 201(d) of FUA.
(3) If the petitioner owns, operates or controls a new powerplant,
this subpart provides the procedures for filing a petition requesting
extension of a temporary exemption granted under sections 211 or 311 of
FUA.
(4) If the petitioner owns, operates or controls a new or existing
powerplant or MFBI, this subpart provides the procedures for filing a
petition requesting extension of a temporary exemption granted under
section 211 or section 311 of FUA.
(b) If the petition is for an extension of a temporary exemption, the
petitioner must apply for this extension at least (90) days prior to the
expiration of the temporary exemption.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565
(42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of
1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus
Budget Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR
46267, Sept. 15, 1977)
(46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50849, Nov. 10, 1982;
54 FR 52892, Dec. 22, 1989)
10 CFR 501.61 Certification Contents.
(a) A self-certification filed under section 201(d) of FUA should
include the following information:
(1) Owner's name and address.
(2) Operator's name and address.
(3) Plant location and address.
(4) Plant configuration (combined cycle, simple cycle, topping cycle,
etc.)
(5) Design capacity in megawatts (MW).
(6) Fuel(s) to be used by the new facility.
(7) Name of utility purchasing electricity from the proposed facility
and percent of total output to be sold.
(8) Date unit is expected to be placed in service.
(9) Certification by an officer of the company or his designated
representative certifying that the proposed facility:
(i) Has sufficient inherent design characteristics to permit the
addition of equipment (including all necessary pollution devices)
necessary to render such electric powerplant capable of using coal or
another alternate fuel as its primary energy source; and
(ii) Is not physically, structurally, or technologically precluded
from using coal or another alternate fuel as its primary energy source.
(b) A self-certification filed pursuant to 501.61(a) shall be
effective to establish compliance with the requirement of section 201(a)
of FUA as of the date filed.
(c) OFE will publish a notice in the Federal Register within fifteen
days reciting that the certification has been filed. Publication of
this notice does not serve to commence a public comment period.
(d) OFE will notify the owner or operator within 60 days if
supporting documentation is needed to verify the certification.
(54 FR 52892, Dec. 22, 1989)
10 CFR 501.62 Petition contents.
(a) A petition for exemption should include the following
information:
(1) The name of the petitioner;
(2) The name and location of the unit for which an exemption is being
requested;
(3) The specific exemption(s) being requested; and
(4) The name, address, and telephone number of the person who can
supply further information.
(b) Table of contents. Include only those sections contained in the
petition.
(c) Introduction. Include the following:
(1) Description of the facility under consideration;
(2) Description of the unit and fuel the petitioner proposes to burn
in that unit, including the purpose of and need for the unit; and
(3) Description of the operational requirements for the unit,
including size (capacity, input and output in millions of Btu's per
hour), output in terms of product or service to be supplied, fuel
capability, and operating mode, including capacity factor, utilization
factor, and fluctuations in the load.
(d) General requirements. The evidence required under part 503
subpart B for each exemption(s) for which the petitioner is applying:
(1) No alternate power supply ( 503.8):
(2) Use of mixtures ( 503.9);
(3) Alternative site ( 503.11);
(4) Compliance Plan ( 503.12);
(5) Environmental impact analysis ( 503.13);
(6) Fuels search ( 503.14).
(e) Specific evidence. Evidence required for each exemption,
segregated by exemption (part 503 subparts C and D).
(f) References. (1) Specify the reports, documents, experts, and
other sources consulted in compiling the petition. Cite these sources
in accordance with acceptable documentation standards, and indicate the
part of the petition to which they apply. If the source is unusual or
little known, briefly describe its contents.
(2) Identify at the end of each section of the petition any
information or any statement based, in whole or in part, on information
or principles which, to petitioner's knowledge, represent significant
innovations to or departures from generally accepted facts or
principles.
(g) Appendices. Include in the appendices material which the
petitioner believes substantiates any analyses fundamental to the
petition, materials prepared in connection with it, and any other
documents, studies, or analyses which are believed to be relevant to the
decision to be made. Also, include in the appendices copies of any
forms submitted as part of the petition.
(h) List of Preparers. List the names with the qualifications and
professional credentials of the principal contributors to the
preparation of the petition. Indicate the sections or subject matters
for which each principal contributor was responsible.
(i) Incorporation by reference. Pertinent information may be
incorporated into the petition by reference when this can be done
without impeding agency and public review. Referenced materials must be
specifically identified and their contents briefly described in the
petition. To incorporate by reference, the material must be submitted
with the petition, or if previously submitted, the office to which it
was submitted must be identified in the petition. The petitioner cannot
incorporate by reference material based on proprietary data not
available to OFE for review.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565
(42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of
1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus
Budget Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR
46267, Sept. 15, 1977)
(46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50849, Nov. 10, 1982)
10 CFR 501.63 Notice of the commencement of an administrative
proceeding on an exemption petition.
(a)(1) When a petition is accepted, OFE will publish in the Federal
Register a Notice of Acceptance, or, in the case of a certification
exemption, a Notice of Acceptance and Availability of Certification,
signifying that an exemption proceeding has commenced. The notice will
include a summary of the exemption petition, and publication will
commence a public comment period of no less than forty-five (45) days
during which interested parties may file written comments concerning the
petition. In the case of a certification exemption, interested persons
may request a public hearing during this period, pursuant to 501.33.
(2) OFE will notify the appropriate State agency having apparent
primary authority to permit or regulate the construction or operation of
a powerplant that an exemption proceeding has commenced and will consult
with this agency to the maximum extent practicable. Copies of all
accepted petitions also will be forwarded to EPA, as provided in
501.14(a).
(b) In processing an exemption petition, OFE shall comply with the
requirements of the National Environmental Policy Act of 1969 (NEPA),
the Council on Environmental Quality's implementing regulations, and the
DOE guidelines implementing those regulations (45 FR 20694, Mar. 28,
1980). Compliance with NEPA may involve the preparation of (1) an
environmental impact statement (EIS) evaluating the grant or denial of
an exemption petition, (2) an environmental assessment (EA), or (3) a
memorandum to the file finding that the grant of the requested petition
would not be considered a major federal action significantly affecting
the quality of the human environment. If an EIS is required, OFE will
publish in the Federal Register a Notice of Intent (NOI) to prepare an
EIS as soon as practicable after commencement of the proceeding. A
public meeting may be held pursuant to 40 CFR 1501.7 to solicit comments
or suggestions on the structure and content of the EIS.
(46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52893, Dec. 22, 1989)
10 CFR 501.64 Publication of notice of availability of tentative staff
analysis.
OFE will publish in the Federal Register a Notice of the Availability
of Tentative Staff Analysis for the noncertification temporary public
interest exemption, for noncertification environmental exemptions, and
for a cogeneration exemption based on the public interest. OFE will
provide a public comment period of at least fourteen (14) days from the
date of publication during which interested persons may make written
comments and request a public hearing.
10 CFR 501.65 Publication of notice of availability of draft EIS.
A Notice of Availability of any draft EIS will be published in the
Federal Register and comments thereon will also be solicited.
Interested persons may request a hearing on any draft EIS. Such hearing
must be requested within thirty (30) days of publication of the Notice
of Availability of the draft EIS.
(54 FR 52893, Dec. 22, 1989)
10 CFR 501.66 OFE evaluation of the record, decision and order.
(a) The administrative record in a proceeding under this part will
consist of the proposed prohibition order and/or petition and related
documents, all relevant evidence presented at the public hearing, all
written comments, and any other information in the possession of OFE and
made a part of the public record of the proceeding. OFE will base its
determination to issue a rule or order on consideration of the whole
record, or those parts thereof cited by a party and supported by
reliable, probative, and substantial evidence.
(b) OFE may investigate and corroborate any statement in any
petition, document, or public comments submitted to it. OFE also may
use any relevant facts it possesses in its evaluation and may request
submissions from third persons relevant to the petition or other
documents. OFE also may request additional information, data, or
analyses following a public hearing, if any, if this information is
necessary to resolve disputed issues in the record. Any relevant
information received by OFE following the hearing that is not declared
to be confidential under 501.7(a)(11) shall be made part of the public
record with opportunity provided for rebuttal.
(c) OFE will notify all participants if, after the close of any
public hearing or comment period, it receives or obtains any relevant
information or evidence. Participants may respond to such information
or evidence in writing within fourteen (14) days of such notification.
If OFE finds that the additional information or evidence relates to
material issues of disputed fact and may significantly influence the
outcome of the proceeding, OFE shall reopen the hearing on the issue or
issues to which the additional information or evidence relates.
10 CFR 501.67 Petition redesignations.
OFE, with the petitioner's approval, will redesignate an exemption
petition if the petitioner qualifies for an exemption other than the one
originally requested, even though he may not qualify for the specific
exemption originally requested, or be entitled to the full exemption
period provided by requested exemption. OFE shall give public notice of
any redesignation of an exemption petition, and where a public hearing
has been requested notice shall be given at least thirty (30) days prior
to such hearing.
10 CFR 501.68 Decision and order.
(a)(1) OFE shall issue an order either granting or denying the
petition for an exemption or permit within six (6) months after the end
of the period for public comment and hearing applicable to any petition.
(2) OFE may extend the six (6) month period for decision to a date
certain by publishing notice in the Federal Register, and stating the
reasons for such extension.
(3) OFE will publish a final EIS at least thirty (30) days prior to
take issuance of the final order in all cases where an EIS is required.
(b)(1) OFE shall serve a copy of the order granting or denying a
petition for exemption to the petitioner and all persons on the service
list in cases involving a public hearing.
(2) OFE shall publish any order granting or denying a petition under
this subpart in the Federal Register together with a statement of the
reasons for the grant or denial.
(c)(1) Any order granting or denying a petition for exemption shall
be based upon consideration of the whole record or those parts thereof
cited by a party and supported by, and in accordance with, reliable,
probative and substantive evidence.
(2) The denial of a petition for exemption shall be without prejudice
to the petitioner's right to submit an amended petition. OFE may,
however, reject the amended petition if it is not materially different
from the denied petition.
(d) OFE may design any terms and conditions included in any temporary
exemption issued or extended under section 211 of FUA, to ensure, among
other things, that upon expiration of the exemption the persons and
powerplant covered by the exemption will comply with the applicable
prohibitions under FUA. For purposes of the provision, the subsequent
grant of a permanent exemption to the subject unit shall be deemed
compliance with applicable prohibitions.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565
(42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of
1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus
Budget Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR
46267, Sept. 15, 1977)
(46 FR 59889, Dec. 7, 1981, as amended at 47 FR 50849, Nov. 10, 1982;
54 FR 52893, Dec. 22, 1989)
10 CFR 501.69 Judicial review.
Any person aggrieved by any order issued by OFE under this subpart,
must file, within sixty (60) days of publication of the final order in
the Federal Register, a petition for judicial review in the United
States Court of Appeals for the Circuit wherein he resides, or has his
principal place of business. Exhaustion of administrative remedies for
purposes of judicial review does not require filing a petition pursuant
to subpart G for modification or rescission of the order to be reviewed.
10 CFR 501.69 Subpart G -- Requests for Modification or Rescission of a Rule or Order
10 CFR 501.100 Purpose and scope.
(a) Anyone may request that OFE commence a rulemaking proceeding
pursuant to 5 U.S.C. 553(e); however, this subpart provides the
procedures to be followed by --
(1) An interested person seeking the modification or rescission of a
prohibition by rule applicable to a new facility;
(2) An owner or operator of a facility named in a prohibition by rule
requesting the modification or rescission of that rule; or
(3) An owner or operator subject to an exemption order or a specific
prohibition imposed by order requesting the modification or a rescission
of that order.
(b) OFE also may commence a modification or rescission proceeding on
its own initiative.
10 CFR 501.101 Proceedings to modify or rescind a rule or order.
(a) In response to a request duly filed by an interested person, OFE
may commence a proceeding to modify or rescind a rule or order. If OFE
determines that a request to modify or rescind a rule or order does not
warrant commencement of a proceeding, it will deny the request and issue
a brief statement of the reason(s) for the denial.
(b) A request for modification or rescission of a rule or order must
comply with the requirements of 501.7 and must be filed at the address
set forth in 501.11.
(c) Notice of the request for modification or rescission of an order
must be given by the requester to each party to the original proceeding
that resulted in the issuance of the original order for which
modification or rescission is sought. If the number of parties to the
original proceeding is too large to allow actual notice at a reasonable
cost or within a reasonable time, a requester may ask that OFE give
notice to the parties by publication in the Federal Register; however,
this alternate notice does not bind OFE to commence a proceeding, if it
subsequently determines that the request is not warranted.
(d) If OFE determines to grant a request to commence a proceeding to
rescind or modify a rule or order, or OFE on its own initiative,
commences a proceeding for the modification or rescission of a rule or
order, it will give notice, either by service of a written notice or by
oral communication (which communication must be promptly confirmed in
writing) to each person upon whom the order was served that OFE proposes
to modify or rescind, or, alternatively, by publication of notice in the
Federal Register. OFE will give a reasonable period of time for each
person notified to file a written response.
(e)(1) A copy of any written comments submitted to OFE under this
subpart by a party to the original proceeding must also be sent to the
requester. The party submitting such comments must certify to OFE that
he has sent a copy of such comments to the requester.
(2) OFE may notify other persons participating in the proceeding of
the comments and provide an opportunity for those notified to respond.
(f) A request for modification or rescission of a rule or order must
contain a complete statement of all facts relevant to the action sought.
The request must also include the names and addresses of all reasonably
ascertainable persons who will be affected. Pertinent provisions
contained in any documents believed to support a request may be briefly
described, however, OFE reserves the right to obtain copies of any
significant documents that will assist in making a determination on the
merits of a request. The request must identify the specific order or
rule for which modification or rescission is sought. A request should
also indicate whether an informal conference will facilitate OFE's
determination to commence, or not to commence a proceeding, or will
assist OFE in making any determinations on material issues raised by the
request.
(g) A decision by OFE to commence a proceeding under this subpart
does not entitle the requester to a public hearing on the request for
modification or rescission. A public hearing may be held, however, if,
in its discretion, OFE considers that a public hearing will advance its
evaluation of the request.
10 CFR 501.102 OFE evaluation of the record, decision and order for
modification or rescission of a rule or order.
(a) OFE will consider the entire administrative record in its
evaluation of the decision and order for modification or rescission of a
rule or order. OFE may investigate and corroborate any statement in the
petition or related documents and may utilize in its evaluation any
relevant facts obtained by its investigations. OFE may solicit or
accept submissions from third persons relevant to any request under this
subpart and all interested persons will be afforded an opportunity to
respond to these submissions. OFE may, in its discretion and on its own
initiative, convene a conference, if it considers that a conference will
advance its evaluation of the request.
(b) Criteria. Except where modification or rescission of a rule or
order is initiated by OFE, OFE's decision to rescind or modify a rule or
order will be based on a determination that there are significantly
changed circumstances with respect to the applicability of a particular
prohibition or exemption to the requester. OFE believes that there may
be ''significantly changed circumstances'', if:
(1) Significant material facts are subsequently discovered which were
not known and could not have been known to the petitioner or to OFE at
the time of the original proceeding;
(2) A law, regulation, interpretation, ruling, order or decision on
appeal that was in effect at the time of the proceeding upon which the
rule or order is based and which, if it had been made known to OFE,
would have been relevant to the proceeding and would have substantially
altered the outcome is subsequently discovered; or
(3) There has been a substantial change in the facts or circumstances
upon which an outstanding and continuing order was based, which change
occurred during the interval between issuance of the order and the date
of filing of the request under this subpart, and was caused by force or
circumstances beyond the requester's control.
10 CFR 501.103 OFE decision.
(a) OFE shall issue an appropriate rule or order after considering
the request for modification or rescission of a rule or order and other
relevant information received during the proceeding.
(b) OFE will either grant or deny the request for modification or
rescission and will briefly state the pertinent facts and legal basis
for the decision.
(c) OFE will serve the rule or order granting or denying the request
for modification or rescission upon the requester, or, if the action was
initiated by OFE, upon the owner or operator of the affected powerplant
or installation. OFE will publish a notice of the issuance of a rule or
order modifying or rescinding a rule or order in the Federal Register.
10 CFR 501.103 Subpart H -- Requests for Stay
10 CFR 501.120 Purpose and scope.
(a) This subpart sets forth the procedures for the request and
issuance of a stay of a rule or order or other requirement issued or
imposed by OFE or these regulations but does not apply to the mandatory
stays provided for in Sections 202(b) and 301(a) of FUA. The
application for a stay under this subpart will only be considered
incidental to a proceeding on a request for modification or rescission
of a final prohibition rule or order.
(b) The petitioner must comply with all final and effective OFE
orders, regulations, rulings, and generally applicable requirements
unless a petition for a stay is granted or is applicable under FUA.
10 CFR 501.121 Filing and notice of petitions for stays.
(a)(1) The petition for a stay must be in writing and comply with the
general filing requirements stated in 501.7, in addition to any other
requirements set forth in this subpart, and must be filed at the address
provided in 501.11.
(2) A claim for confidential treatment of any information contained
in the petition for stay and supporting documents must be in accordance
with 501.7(a)(11), and filed at the address provided in 501.11.
(b) OFE will publish notice of receipt of a petition for a stay under
this subpart in the Federal Register.
10 CFR 501.122 Contents.
(a) A petition for a stay shall contain a full and complete statement
of all facts believed to be pertinent to the act or transaction for
which a stay is sought. The facts shall include, but not be limited to,
the criteria listed below in 501.123(b).
(b) The petitioner may request a conference regarding the
application. If the request is not made at the time the application is
filed, it must be made as soon thereafter as possible. The request and
OFE's determination regarding it will be made in accordance with subpart
C of this part.
10 CFR 501.123 Evaluation of the record.
(a) The record in a proceeding on a petition for stay shall consist
of the petition and any related documents, evidence submitted at any
public proceedings and any other information in the possession of OFE
and made part of the record. OFE may investigate and corroborate any
statement in the petition or any other document submitted to it and may
utilize in its evaluation any relevant facts obtained by its
investigations. OFE may solicit or accept submissions from third
persons relevant to the petition for stay or other document and any
interested person will be afforded an opportunity to respond to these
submissions. OFE, on its initiative, may convene a conference, if, in
its discretion, it considers that the conference will advance its
evaluation of the petition.
(b) Criteria. (1) OFE may grant a stay incident to a proceeding on a
petition for modification of a rule or order if the petitioner shows:
(i) Irreparable injury will result if the stay is denied;
(ii) There is a strong likelihood of success on the merits;
(iii) The denial of a stay will result in a more immediate hardship
or inequity to the petitioner than to other persons affected by the
proceeding; and
(iv) It would be desirable for reasons of public policy to grant the
stay.
10 CFR 501.124 Decision and order.
(a) OFE will issue an order granting or denying the petition for a
stay upon consideration of the request and other relevant information
received or obtained during the proceeding.
(b) OFE will include in the order a brief written statement setting
forth the relevant facts and the basis of the decision, including any
appropriate terms and conditions of the stay.
10 CFR 501.124 Subpart I -- Requests for Interpretation
10 CFR 501.130 Purpose and scope.
This subpart establishes procedures for filing a formal request for
and the issuance of an interpretation of a rule, order or other action
by DOE. Any response, whether oral or written, to a general inquiry, or
to other than a formal written request for interpretation filed with
DOE, is not an interpretation and merely provides general information
that may not be relied upon in any proceeding to determine compliance
with the applicable requirements of FUA.
10 CFR 501.131 Filing a request for interpretation.
A proceeding to request an interpretation is commenced by the filing
of a ''Request for Interpretation (FUA).'' The request must be in
writing and must also comply with the general filing requirements stated
in 501.7. Any claims for confidential treatment for any information
contained in the request or other related documents must be made
pursuant to 501.7(a)(11). A request for interpretation should be filed
with the Assistant General Counsel for Interpretations and Rulings at
the address provided in 501.11.
10 CFR 501.132 Contents of a request for interpretation.
(a) A request for an interpretation must contain a complete statement
of all the facts believed to be relevant to the circumstances, acts or
transactions that are the subject of the request. The facts must
include the names and addresses of all potentially affected persons (if
reasonably ascertainable) and a full discussion of the pertinent
provisions and relevant facts contained in any documents submitted with
the request. Copies of relevant contracts, agreements, leases,
instruments, and other documents relating to the request must be
submitted if DOE believes they are necessary for determination of any
issue pending in the proceeding under this subpart. When the request
pertains to only one step in a larger integrated transaction, the
requesting party must also submit the facts, circumstances, and other
relevant information pertaining to the entire transaction.
(b) The requesting party must include in the request a discussion of
all relevant legal authorities, rulings, regulations, interpretations
and decisions on appeal relied upon to support the particular
interpretation sought.
(c) DOE may refuse to issue an interpretation if it determines that
there is insufficient information upon which to base an interpretation.
10 CFR 501.133 DOE evaluaton.
(a)(1) The record shall consist of the request for an interpretation
and any supporting documents, all relevant evidence presented at any
public proceedings, written comments and any information in the
possession of DOE that has been made part of the record.
(2) DOE may investigate and corroborate any statement in a request or
related documents and may utilize in its evaluation any relevant facts
obtained by the investigation. DOE may solicit or accept submissions
from third persons relevant to the request for interpretation, or any
other document submitted under this subpart, and the person requesting
the interpretation will be afforded an opportunity to respond to these
submissions.
(3) The General Counsel or his delegate will issue an interpretation
on the basis of the information provided in the request, unless that
information is supplemented by other information brought to the
attention of DOE during the proceeding. DOE's interpretation will,
therefore, depend on the accuracy of the factual statements, and the
requesting party may rely upon it only to the extent that the facts of
the actual situation correspond to those upon which the interpretation
is based.
(b) Criteria. (1) DOE will base its FUA interpretations on the DEOA
and FUA, as applicable, and the regulations and published rulings of DOE
as applied to the specific factual situation presented.
(2) DOE will take into consideration previously issued
interpretations dealing with the same or a related issue.
10 CFR 501.134 Issuance and effect of interpretations.
(a) DOE may issue an interpretation after consideration of the
request for interpretation and other relevant information received or
obtained during the proceeding.
(b) The interpretation will contain a written 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, are
entitled to rely upon it. No person entitled to rely upon an
interpretation shall be subject to civil or criminal penalties stated in
title VII of FUA 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) DOE may at any time rescind or modify an interpretation on its
own initiative. Rescission or modification shall be made by notifying
persons entitled to rely on the interpretation that it is rescinded or
modified. This notification will include a statement of the reasons for
the rescission 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) Any person who believes he is directly affected by an
interpretation issued by DOE, and who believes that he will be aggrieved
by its implementation, may submit a petition for reconsideration of that
interpretation to the General Counsel. DOE will acknowledge receipt of
all requests for reconsideration; however, this acknowledgement in no
way binds DOE to commence any proceeding on the request. If within
sixty (60) days of DOE's acknowledgement of the receipt of a request for
reconsideration, DOE has not issued either a notice of intent to
commence a proceeding to reconsider the interpretation or a
modification, revision or rescission of the original interpretation, the
request for reconsideration will be deemed denied. DOE may, in its
discretion, issue a formal denial of a request for reconsideration if:
(1) The request has not been filed in a timely manner, and good cause
therefor has not been shown;
(2) The person requesting reconsideration is not aggrieved or
otherwise injured substantially by the interpretation; or
(3) The request is defective because it fails to state and to present
facts and legal argument that the interpretation was erroneous in fact
or in law, or that it was arbitrary or capricious.
10 CFR 501.134 Subpart J -- Rulings
10 CFR 501.140 Purpose and scope.
DOE may issue rulings in accordance with the provisions of this
subpart. DOE will publish each ruling in the Federal Register and in 10
CFR part 518. A person is entitled to rely upon a ruling to the extent
provided in this subpart.
10 CFR 501.141 Criteria for issuance.
(a) The General Counsel may issue a ruling whenever:
(1) There has been a substantial number of inquiries with regard to
similar factual situations or a particular section of the regulations;
or
(2) It is determined that a ruling will be of assistance to the
public in applying the regulations to a specific situation.
10 CFR 501.142 Modification or rescission.
(a) A ruling may be modified or rescinded by --
(1) Publication of the modification or rescission by DOE in the
Federal Register and in 10 CFR part 518; or
(2) Adoption of a rule that supersedes or modifies a prior ruling.
(b) A person shall not be subject to the sanctions or penalties
stated in these regulations for actions taken in reliance upon a ruling,
notwithstanding that the ruling is subsequently declared to be invalid
or no longer applicable. A person affected by a ruling may not rely
upon it for more than 30 days after it has been rendered invalid
pursuant to issuance of a superseding rule by OFE, or after it has been
rescinded or modified by DOE.
10 CFR 501.143 Comments.
Any interested person may file a written comment on or objection to a
published ruling at any time with the Assistant General Counsel for
Interpretations and Rulings at the address provided in 501.11.
10 CFR 501.143 Subpart K -- Enforcement
10 CFR 501.160 Purpose and scope.
This subpart provides the procedures by which OFE may initiate
enforcement proceedings on its own behalf and by which complaints
concerning a violation of the Act or any rule or order thereunder may be
filed.
10 CFR 501.161 Filing a complaint.
(a) A complaint under this subpart must be submitted in writing over
the signature of the person making the complaint in accordance with the
general filing requirements stated in 501.7. OFE will accept oral
complaints that otherwise satisfy the requirements of this subpart, but
OFE may request written verification.
(b) A complaint shall be filed at the address provided in 501.11.
10 CFR 501.162 Contents of a complaint.
A complaint must contain a complete statement of all relevant facts
pertaining to the act or transaction that is the subject of the
complaint. It must also include the names and addresses of all persons
involved (if reasonably ascertainable), a description of the events that
led to the complaint, and a statement describing the statutory
provision, regulation, ruling, order, rule, or interpretation that
allegedly has been violated.
10 CFR 501.163 OFE evaluation.
(a) The record shall consist of the complaint and any supporting
documents and all other relevant information developed in the course of
any investigations or proceedings related to that complaint. OFE may
investigate and corroborate any statement in the complaint or related
documents submitted, and may utilize in its evaluation any relevant
facts obtained by such investigation or from any other source of
information. OFE may solicit or accept submissions from third persons
relevant to the complaint or other related documents.
(b) Confidentiality of information. OFE will treat as confidential
information received in any investigation of a complaint, including the
identity of the complainant and the identity of any other persons who
provide information to the extent such information is exempt from public
disclosure under the Freedom of Information Act, 5 U.S.C. 552. OFE
reserves the right to make disclosures that would be in the public
interest.
10 CFR 501.164 Decision to initiate enforcement proceedings.
After investigation of a specific complaint or based on any relevant
information received or obtained during an investigation, OFE may issue
a notice of violation, determine that no violation has occurred, or take
such other actions as it deems appropriate. Prior to issuance of a
notice of violation, and before commencement of an enforcement
proceeding, OFE may transmit a draft of the notice of violation to the
potentially affected person in order to promote an informal resolution
of the violation.
10 CFR 501.165 Commencement of enforcement proceedings.
(a) Whenever, on the basis of any information available, OFE
determines that a person is in violation or about to be in violation of
any provision of these regulations, OFE may issue a notice of violation
stating, in writing and with reasonable specificity, the nature of the
violation. An enforcement proceeding commences with the issuance of a
notice of violation.
(b) Contents of the notice of violation. OFE will set forth in the
notice of violation the nature of the violation, the relevant facts that
OFE believes establish the violation and the legal basis for the
conclusions reached therein. OFE may also include with the notice of
violation a copy of a proposed order. The notice of violation will also
state whether or not OFE proposes to assess civil penalties.
(1) If OFE proposes to assess a civil penalty, a notice of violation
will be issued to the violator with an opportunity for a hearing before
an Administrative Law Judge, as set forth in 501.166(a)(1) of this
part, before any final determination on the violation and penalty are
made by OFE. The recipient of the notice will also be informed of his
right to elect to have the procedures of 501.166(a)(2) apply, in lieu
of the hearing, with respect to a final determination on the assessment
of any civil penalty.
(2) If OFE does not propose to assess a civil penalty, the violator
will be provided the opportunity for a conference, as set forth in
501.166(b), before a final determination on the violation is made by
OFE. OFE may, in its discretion, also provide the violator an
opportunity for a hearing pursuant to 501.166(a)(1).
(c) Service. OFE will serve the notice of violation in accordance
with provisions set forth in 501.6.
(d) Rescission. If, after issuance of a notice of violation and any
related investigation, OFE finds no basis for the belief that a
violation has occurred, is continuing to occur, or is about to occur,
OFE may rescind the notice of violation by giving written notice to that
effect to the recipient.
10 CFR 501.166 Hearings and conferences.
(a) When a civil penalty is proposed. (1) Hearing alternative in
civil penalty assessment proceedings. Unless the recipient of a notice
of violation elects in writing to have the provisions of paragraph
(a)(2) of this section apply, OFE will commence a proceeding to assess a
penalty and, prior to a final determination on the violation and
assessment of a penalty, provide an opportunity for a hearing pursuant
to 5 U.S.C. 554 before an Administrative Law Judge.
(2) Election alternative in civil penalty assessment proceedings.
The recipient of a notice of violation in which a civil penalty
assessment has been proposed may elect, in writing, within thirty (30)
days of receipt of the notice, to waive the administrative proceedings
described in paragraph (a)(1) of this section. OFE will make a
determination on the proposed civil penalty assessment and issue a final
order to that effect within forty-five (45) days after receiving notice
of the exercise of this election.
(b) When a civil penalty is not proposed -- opportunity to request a
conference. If a person has received a notice of violation in which a
civil penalty has not been proposed, he may, within thirty (30) days
after receipt of the notice, request a conference with OFE to discuss
the notice. In order to request a conference he must comply with the
instructions set forth in the notice.
10 CFR 501.167 Fuel use order.
(a) General. OFE will issue a Fuel Use Order if, after considering
all the information received during the proceeding, OFE determines that
a person has committed, is committing, or is about to commit a violation
of FUA or of an order or rule thereunder.
(b) Contents. Any Fuel Use Order issued under this section shall set
forth the relevant facts and legal basis for the order and where
appropriate, the final penalty assessment and the basis therefor. When
an administrative hearing is requested under 501.166(a) of this part,
the Fuel Use Order will include the recommended findings and conclusions
of the Administrative Law Judge (ALJ) and the basis for the penalty
assessment. OFE will make a final determination as to any penalty
assessment or other appropriate remedy based upon the recommended
findings and conclusions of the ALJ and other information in the record
of the enforcement proceeding. The order will be effective upon
service, unless otherwise provided therein, or stayed pursuant to
501.120.
(c) Service. OFE will serve a copy of the Fuel Use Order upon any
person who was served a copy of the notice of violation and upon all
parties to any public proceeding on the notice of violation. OFE will
place a copy of each final order on file in the Public Information
Office described in 501.12.
(d) Judicial review. Any person against whom a penalty is assessed
pursuant to 501.167(b) after a hearing before an ALJ may, within sixty
(60) calendar days after the date of issuance of the order assessing
such penalty, institute an action in the United States Court of Appeals
for the appropriate judicial circuit for judicial review of such order
in accordance with the provisions of section 723 of FUA.
10 CFR 501.167 Subpart L -- Investigations, Violations, Sanctions and Judicial Actions
10 CFR 501.180 Investigations.
(a) General. Pursuant to section 711 of FUA, the DEOA, and in
accordance with the provisions of 10 CFR 205.201, OFE may initiate and
conduct investigations relating to the scope, nature, and extent of
compliance by any person with the rules, regulations, and orders issued
by OFE under the authority of the Act, or any order or decree of court
relating thereto, or any other agency action. When the circumstances
warrant, OFE may issue subpoenas as provided in Subpart D of this part.
OFE may also conduct investigative conferences in conjunction with any
investigation.
(b) Any duly authorized representative of OFE has the authority to
conduct an investigation and to take such action as he deems necessary
and appropriate to the conduct of the investigation.
(c) Notification. If any person is required to furnish information
or documentary evidence pursuant to a subpoena or special report order,
OFE will, upon written request, inform that person as to the general
purposes of the investigation.
(d) Confidentiality. OFE shall not disclose any information received
during an investigation under this section, including the identities of
the person investigated and any other person who provides information,
to the extent it is exempt from public disclosure pursuant to 5 U.S.C.
552 and 10 CFR part 1004.
10 CFR 501.181 Sanctions.
(a) General. (1) A violation of any provision of the Act (other than
section 402 of FUA), or any rule or order thereunder shall be subject to
the penalties and sanctions provided in subtitle C of title VII of FUA.
(2) Each day that any provision of the Act (other than section 402),
or any rule or order thereunder is violated constitutes a separate
violation within the meaning of the provisions of this section relating
to civil penalties.
(b) Criminal penalties. Any person who willfully violates any
provision of the Act (other than section 402), or any rule or order
thereunder will be subject to a fine of not more than $50,000, or to
imprisonment for not more than 1 year, or both, for each violation.
(c) Civil penalties. (1) Any person who violates any provisions of
the Act (other than section 402) or any rule or order thereunder will be
subject to the following civil penalty, which may not exceed $25,000 for
each violation: Any person who operates a powerplant or major fuel
burning installation under an exemption, during any 12-calendar-month
period, in excess of that authorized in such exemption will be assessed
a civil penalty of up to $3 for each MCF of natural gas or up to $10 for
each barrel of oil used in excess of that authorized in the exemption.
(2) OFE may compromise and settle, and collect civil penalties
whenever it considers it to be appropriate or advisable.
(d) Corporate personnel. (1) If a director, officer, or agent of a
corporation willfully authorizes, orders, or performs any act or
practice constituting in whole or in part a violation of the Act, or any
rule or order thereunder, he will be subject to the penalties specified
in paragraphs (b) and (c) of this section without regard to any
penalties to which the corporation may be subject. He will not,
however, be subject to imprisonment under paragraph (b) of this section
unless he knew of noncompliance by the corporation, or had received from
OFE notice of noncompliance by the corporation.
(2) Purposes of this paragraph:
(i) Agent includes any employee or other person acting on behalf of
the corporation on either a temporary or permanent basis; and
(ii) Notice of noncompliance is a final Fuel Use Order issued under
501.167 of this part.
10 CFR 501.182 Injunctions.
Whenever it appears to OFE that any person has committed, is
committing, or is about to commit a violation of any provision of the
Act, or any rule or order thereunder, OFE may, in accordance with
section 724 of FUA, bring a civil action in the appropriate United
States District Court to enjoin such acts or practices. The relief
sought may include a mandatory injunction commanding any person to
comply with any provision of such provision, order or rule, the
violation of which is prohibited by section 724 of FUA and may also
include interim equitable relief.
10 CFR 501.183 Citizen suits.
(a) General. A person who believes he is aggrieved by the failure of
OFE to perform any nondiscretionary act of duty under the Act may file a
Petition for Action for OFE to take such action as he may feel to be
proper. This petition must be filed at the address provided in 501.11.
The petition must specify the action requested and set forth the facts
and legal arguments that constitute the basis for the request. The
filing of a Petition for Action will serve as notice to OFE under FUA
section 725(b) for purposes of any citizens suit that may be
subsequently filed.
(b) OFE decision. Within sixty (60) days of receiving the Petition
for Action, OFE will notify the person giving notice under this section
that it has instituted the action requested or that other described
action is being taken, or that other described action is being taken, or
that no action is being taken and the reasons therefor.
10 CFR 501.183 Subpart M -- Use of Natural Gas or Petroleum for Emergency and Unanticipated Equipment Outage Purposes
10 CFR 501.190 Purpose and scope.
(a) If a person operates a powerplant covered by any of the
prohibitions of titles II, III, or IV of FUA, 501.191 of this subpart
establishes procedures to be followed for the use of minimum amounts of
natural gas or petroleum under FUA section 103(a)(15)(B) in order to
alleviate or prevent unanticipated equipment outages and emergencies
directly affecting the public health, safety, or welfare that would
result from electric power outages.
(b) Explanatory note: If a person operates a rental boiler as a
powerplant covered by any of the prohibitions of titles II, III, or IV
of FUA, he may be able to use the provisions of this subpart for the
emergency use of natural gas or petroleum.
(54 FR 52893, Dec. 22, 1989)
10 CFR 501.191 Use of natural gas or petroleum for certain
unanticipated equipment outages and emergencies defined in section
103(a)(15)(B) of the act.
(a) In the event of the occurrence or imminent occurrence of an
emergency, or of the occurrence or imminent occurrence of an
unanticipated equipment outage in the unit, an owner or operator of a
powerplant is automatically permitted to use minimum amounts of natural
gas or petroleum in the unit or in a substitute unit to prevent or
alleviate the outage or to prevent or alleviate the emergency if he
complies with procedures contained in paragraph (b) of this section.
(b) If the use of minimum amounts of petroleum or natural gas is
required for purposes specified in this section, the owner or operator
must notify OFE of such use by telegram or telephone within 24 hours
after the commencement of such use. Immediately thereafter a written
confirmation must be submitted to OFE, describing, to the best estimate
of the owner or operator, (1) the nature of the emergency and (2) how
long petroleum or natural gas use is likely to be required.
(c) For purposes of this section only:
(1) An emergency is the occurrence or threat of imminent occurrence
of a condition which results or would result from an electric power
outage and directly effects or would directly effect the public health,
safety or welfare;
(2) Unanticipated equipment outage shall mean an unexpected outage
due to equipment failure.
(3) Minimum amounts required to alleviate or prevent shall mean:
(i) For powerplants, the amounts of natural gas or petroleum required
to prevent curtailment of electric supply where the operating utility
has, to the maximum extent possible, utilized alternate fuel-fired
capacity to prevent such curtailment. Note -- A utility operating
hydroelectric facilities may take into account seasonal fluctuations in
storage capacity and shall be permitted to prevent depletion of stored
power-producing capacity as deemed necessary by the utility; and
(ii) For installations, the amounts of natural gas or petroleum
required to meet plant protection or human health and safety needs,
including services to hospitals, public transportation facilities,
sanitation, or water supply and pumping.
(46 FR 59889, Dec. 7, 1981, as amended at 54 FR 52893, Dec. 22, 1989)
501.192 (Reserved)
10 CFR 501.191 Pt. 503
10 CFR 501.191 PART 503 -- NEW FACILITIES
10 CFR 501.191 Subpart A -- General Prohibition
Sec.
503.1 Purpose and scope.
503.2 Prohibition.
503.3 (Reserved)
10 CFR 501.191 Subpart B -- General Requirements for Exemptions
503.4 Purpose and scope.
503.5 Contents of petition.
503.6 Cost calculations for new powerplants.
503.7 State approval -- general requirement for new powerplants.
503.8 No alternate power supply -- general requirement for certain
exemptions for new powerplants.
503.9 Use of mixtures -- general requirement for certain permanent
exemptions.
503.10 Use of fluidized bed combustion not feasible -- general
requirement for permanent exemptions.
503.11 Alternative sites -- general requirement for permanent
exemptions for new powerplants.
503.12 Terms and conditions; compliance plans.
503.13 Environmental impact analysis.
503.14 Fuels search.
10 CFR 501.191 Subpart C -- Temporary Exemptions for New Facilities
503.20 Purpose and scope.
503.21 Lack of alternate fuel supply.
503.22 Site limitation.
503.23 Inability to comply with applicable environmental
requirements.
503.24 Future use of synthetic fuels.
503.25 Public interest.
10 CFR 501.191 Subpart D -- Permanent Exemptions for New Facilities
503.30 Purpose and scope.
503.31 Lack of alternate fuel supply for the first 10 years of useful
life.
503.32 Lack of alternate fuel supply at a cost which does not
substantially exceed the cost of using imported petroleum.
503.33 Site limitations.
503.34 Inability to comply with applicable environmental
requirements.
503.35 Inability to obtain adequate capital.
503.36 State or local requirements.
503.37 Cogeneration.
503.38 Permanent exemption for certain fuel mixtures containing
natural gas or petroleum.
503.39-44 (Reserved)
Authority: Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565 (42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel
Use Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et
seq.); Energy Security Act, Pub. L. 96-294, 94 Stat. 611 (42 U.S.C.
8701 et seq.); E.O. 1209, 42 FR 46267, September 15, 1977.
Source: 46 FR 59903, Dec. 7, 1981, unless otherwise noted.
OMB Control No. : 1903-0075. See 46 FR 63209, Dec. 31, 1981.
Editorial Note: Nomenclature changes to this part appear at 54 FR
52893, Dec. 22, 1989.
10 CFR 501.191 Subpart A -- General Prohibition
10 CFR 503.1 Purpose and scope.
This subpart sets forth the statutory prohibition imposed by the Act
upon new powerplants. The prohibition in the subpart applies to all new
baseload electric powerplants unless an exemption has been granted by
OFE under subparts C and D of this part. Any person who owns, controls,
rents, leases or operates a new powerplant that is subject to the
prohibition may be subject to sanctions provided by the Act or these
regulations.
(54 FR 52893, Dec. 22, 1989)
10 CFR 503.2 Prohibition.
Section 201 of the Act prohibits, unless an exemption has been
granted under subpart C or D of this part, any new electric powerplant
from being constructed or operated as a baseload powerplant without the
capability to use coal or another alternate fuel as a primary energy
source.
(54 FR 52893, Dec. 22, 1989)
503.3 (Reserved)
10 CFR 503.2 Subpart B -- General Requirements for Exemptions
10 CFR 503.4 Purpose and scope.
This subpart establishes the general requirements necessary to
qualify for either a temporary or permanent exemption under this part
and sets out the methodology for calculating the cost of using an
alternate fuel and the cost of using imported petroleum.
10 CFR 503.5 Contents of petition.
Before OFE will accept a petition for either a temporary or permanent
exemption under this part, the petition must include all of the evidence
and information required in this part and part 501 of this chapter.
10 CFR 503.6 Cost calculations for new powerplants and installations.
(a) General. (1) This calculation compares the cost of using
alternate fuel to the cost of using imported petroleum. It must be
performed for each alternate fuel and/or alternate site that the
petitioner is required to examine.
(2) The cost of using an alternate fuel as a primary energy source
will be deemed to substantially exceed the cost of using imported
petroleum if the difference between the cost of using alternate fuel and
the cost of using imported oil is greater than zero.
(3) There are two comparative cost calculations -- a general cost
test and a special cost test. Both take into consideration cash outlays
for capital investments, annual expenses, and the effect of depreciation
and taxes on cash flow. To demonstrate eligibility for a permanent
exemption, a petitioner must use the procedures specified in the general
cost test (paragraph (b) of this section). To demonstrate eligibility
for a temporary exemption, the petitioner may apply the procedures
specified in either the general cost test or the special cost test
(paragraph (c) of this section).
(b) Cost calculation -- general cost test. (1) A petitioner may be
eligible for a permanent exemption if he can demonstrate that the cost
of using an alternate fuel from the first year of operation
substantially exceeds the cost of using imported petroleum. Unless the
best practicable cost estimates as prescribed below will not materially
change during the first ten years of operation of the unit (given the
best information available at the time the petition is filed), the
petitioner must also demonstrate that the cost of using an alternate
fuel beginning at any time within the first ten years of operation and
using imported petroleum or natural gas until such time (i.e., delayed
use of alternate fuel) would substantially exceed the cost of using only
imported petroleum.
(2) The petitioner would only be eligible for a temporary exemption
if the computed costs of delayed alternate fuel use, commencing at the
start of the second through eleventh years of operation, do not always
substantially exceed the cost of using only imported petroleum. The
length of the temporary exemption would be the minimum period from the
start of operation in which the cost of using alternate fuel
substantially exceeds the cost of using imported petroleum.
(3) To conduct the general cost test, calculate the difference
(DELTA) between the cost of using an alternate fuel (COST(ALTERNATE))
and the cost of using imported petroleum (COST(OIL)) using Equations 1
through 3 below and the comparison procedures in paragraph (b)(5) of
this section.
10 CFR 503.6
(4) The terms in Equations 2 and 3 are defined as follows:
i=Year. i is a specified year either before year 0 or after year 0.
Year 0 is the year before the unit becomes operational. For example, in
the third year before the unit becomes operational, i would equal ^2,
and in the third year following commencement of operations of the unit,
i would equal +3. Years are represented by 52 week periods prior to or
following the date on which the unit becomes operational. Outlays
before the unit becomes operational are future valued to the year before
the unit becomes operational (year 0), and outlays after the unit
becomes operational are present valued to the year before the unit
becomes operational. Year 0 must be the same for the units being
compared.
g=The number of years prior to the year before the unit becomes
operational (year 0) that (1) a cash outlay is first made for capital
investments, or (2) an investment tax credit is first used -- whichever
occurs first.
N=The useful life of the unit (see paragraph (d)(5) of this section).
Ii=Yearly cash outlay (in dollars) from the year outlays first occur
to the last year of the unit's useful life for capital investments.
(See paragraph (d)(2) of this section for the items that must be
included.)
OMi=Annual cash outlay in year i (in dollars) for all operations and
maintenance expenses except fuel (i.e., all non-capital and non-fuel
cash outlays caused by putting the capital investments (I) into
service). This may include labor, materials, insurance, taxes (except
income taxes), etc. (See paragraph (d)(3) of this section.)
Si=Salvage value of capital investment (in dollars) in year i.
FLi=Annual cash outlay for delivered fuel expenses (in dollars) in
year i. (See paragraph (d)(3) of this section for FLi calculation
instructions and appendix II of these regulations for the procedures to
determine fuel price.)
k=The discount rate expressed as a fraction (see paragraph (d)(4) of
this section).
ITCi=Federal investment tax credit used in year i resulting from
capital investments (see paragraph (d)(6) of this section).
DPRi=Depreciation in year i resulting from capital investments (see
paragraph (d)(6) of this section).
ti=Marginal income tax rate in year i (see paragraph (d)(6) of this
section).
IXi=Inflation index value for year i (see appendix II to part 504 for
method of computation).
IXe=Inflation index value for the year e, the year before the asset
is placed in service.
(5) The step-by-step procedure that follows shows the comparison that
the petitioner must make.
(i) Compute the cost of using an alternate fuel (COST(ALTERNATE))
unit throughout the useful life of the unit using Equations 2 and 3.
(ii) Compute the cost of using oil or natural gas (COST(OIL))
throughout the useful life of the unit using Equations 2 and 3.
(iii) Using Equation 1, compute the difference (DELTA) between COST
(ALTERNATE) and COST (OIL). If the difference (DELTA) is less than or
equal to zero, a petitioner is not eligible for a permanent or temporary
exemption using the general cost test and need not complete the
remainder of the general cost test calculation. However, he still may
be eligible for a temporary exemption using the special cost test
(paragraph (c) of this section). If the difference (DELTA) is greater
than zero and if the best practicable cost estimates will not materially
change during the first ten years of operation (given the best
information available at the time the petition is filed), the petitioner
has completed the test and is eligible for a permanent exemption.
However, if the best practicable cost estimate will materially change
during the first ten years, the petitioner must complete the remainder
of the general cost test -- the delayed use calculations which follow.
(iv) Recompute COST (ALTERNATE) with Equations 2 and 3, assuming that
an alternate fuel is not used as the primary energy source until the
start of the second year of operation and that imported petroleum or
natural gas is used for the first year of operation. All cash outlays
should reflect postponed use of alternate fuel.
(v) Successively recompute COST (ALTERNATE) with Equations 2 and 3,
assuming that the alternate fuel use is postponed until the start of the
third year, fourth year, and so on, through the beginning of the
eleventh year of operation (with imported petroleum or natural gas used
in the years preceding alternate fuel use).
(vi) Compute the difference (DELTA) between each of the ten
COST(ALTERNATE)s calculated in paragraph (b)(5) (iv) and (v) of this
section and the COST(OIL) calculated in paragraph (b)(5)(ii) of this
section.
(vii) If all the DELTAs computed in paragraph (b)(5) (iii) and (vi)
of this section are greater than zero, the petitioner is eligible for a
permanent exemption. If one or more of the DELTAs is less than or equal
to zero, he is eligible for a temporary exemption for the period
beginning at the start of the first year of operation and terminating at
the beginning of the first year in which a DELTA is zero or less.
(c) Cost calculations -- special cost test. (1) A petitioner may be
eligible for a temporary exemption if he demonstrates that the cost of
using an alternate fuel will substantially exceed the cost of using
imported petroleum or (natural gas) over the period of the proposed
exemption. The period of the proposed temporary exemption may not
exceed ten years.
The petitioner must demonstrate that the cost of using an alternate
fuel substantially exceeds the cost of using imported petroleum for the
first year of operation, the first two years of operation, and so forth,
through the period of the proposed exemption. OFE will limit the
duration of a temporary exemption to the shortest time possible.
(2) To conduct the test, calculate the difference (DELTA) between the
cost of using an alternate fuel (COST (ALTERNATE)) and the cost of using
imported petroleum (COST (OIL)) using Equations 4 and 5 below, Equation
3 (paragraph (b)(3) of this section), and the comparison procedures in
paragraph (c)(4) of this section.
10 CFR 503.6
Capital investment (I) is calculated with Equation 3 (paragraph
(b)(3) of this section).
(3) The terms in Equation 5 are the same as those in Equation 2 with
the addition of P, the length of the proposed temporary exemption in
years. (See paragraph (b)(4) of this section for other terms.)
(4) The step-by-step procedure that follows shows the comparisons
which must be made.
(i) Using Equation 5, compute the cost of using an alternate fuel
(COST(ALTERNATE)) assuming the length of the proposed exemption is one
year.
(ii) Likewise, compute the cost of using imported petroleum or
natural gas (COST(OIL)) assuming the length of the proposed exemption is
one year.
(iii) Compute the difference (DELTA) between COST (ALTERNATE) and
COST (OIL) using Equation 4.
(iv) Repeat the calculations made in (i), (ii), and (iii) above,
assuming the length of the proposed exemption is two years, three years,
four years, and so on, up through the period of the proposed exemption.
(v) A petitioner is eligible for a temporary exemption for the period
beginning at the start of the first year of operation and terminating at
the beginning of the first year in which a DELTA is zero or less.
(d) Information on parameters used in the calculations. (1) All
estimated expenditures, except fuel, shall be expressed in real terms
(unadjusted for inflation) by using the prices in effect at the time the
petition is submitted. Instructions for fuel price calculations are
contained in appendix II.
(2) Capital investment yearly cash outlays (Ii) must include all
items that are capital investments for Federal income tax purposes. All
purchased equipment that has a useful life greater than one year,
capitalized engineering costs, land, construction, environmental
offsets, fuel inventory, transmission facilities, piping, etc., that are
necessary for the operation of the unit must be included. However, an
item must only be included if a cash outlay is required after the
decision has been made to build the unit; sunk costs must not be
included (e.g., if the firm owns the land, its purchase price may not be
included).
Note: The guidelines for the fuel inventory for powerplants not
using natural gas shall be: (a) All powerplants with only steam driven
turbines -- 78 days, (b) all powerplants with only combustion turbines
-- 142 days, (c) all powerplants with combined cycles -- both steam
driven turbines and combustion turbines -- 142 days. The guidelines for
the fuel inventory for installations not using natural gas shall be the
greater of: (1) 21 days fuel supply, or (2) sufficient fuel to fill
sixty (60) percent of the storage volume. The guidelines for the fuel
inventory for all facilities using natural gas shall be zero unless the
gas supply is interruptible in which case an appropriate inventory of
back-up fuel must be included. Other inventory levels may be used if
they are more appropriate than these guidelines; however, the source or
derivation of these levels must be discussed in the evidential summary.
(3)(i) The annual cash outlays for operations and maintenance expense
(OMi) and fuel expense (FLi) for a powerplant may be computed by one of
the following three methods; however, the one chosen must be
consistently applied throughout the analysis.
(A) Assume the energy produced by the powerplant equals seventy (70)
percent of design capacity times 8760 hours for each year during the
life of the powerplant, and compute cash outlays for operations,
maintenance, and fuel expenses for the powerplant.
(B) Economically dispatch the new powerplant. The cash outlays for
operations, maintenance, and fuel expenses of all powerplants being
dispatched (where oil and natural gas are priced according to the
procedures of appendix II /1/ ) are the corresponding expenses for the
purpose of the cost calculation. The dispatch analysis area must be
that area with which the firm currently dispatches, anticipates
dispatching, and will be interconnected. It must also include all
anticipated exchanges of energy with other utilities or powerpools. The
outlays for operations, maintenance, and fuel may also be estimated
using a methodology that incorporates the benefits of economically
dispatching units and provides consistent treatment in the alternate
fuel and oil or natural gas cases being compared.
(C) Use a dispatch analysis to project the energy produced by the
powerplant for a representative (not atypical) year of operation when
consuming an alternate fuel. Compute the cash outlays for operations,
maintenance, and fuel expenses for the powerplant based upon the level
of energy production estimated for the representative year. The
dispatch analysis and fuel expenses for the cost calculation must
include oil and natural gas priced according to the procedures of
appendix II. /1/
(ii) When computing the annual cash outlays for operations and
maintenance expense (OMi) and fuel expense (FLi) for an installation,
specify the firing rates and the length of time each firing rate will be
maintained.
(4) The discount rate (k) for analyses is 2.9 percent or that which
is computed as specified in appendix I. The method of computing the
inflation index (IX) is shown in appendix II to part 504. OFE will
modify these specified rates from time to time as required by changed
conditions after public notice and an opportunity to comment. However,
the relevant set of specified rates for a specific petition for
exemption will be the set in effect at the time the petition is
submitted or the set in effect at the time a decision is rendered,
whichever set is more favorable to the petitioner.
(5)(i) The guidelines for the useful life (N) of all powerplants
except nuclear will be thirty-five (35) years. The guidelines for the
useful life of a nuclear powerplant will be forty (40) years. The
guidelines for the useful life of major fuel burning installations will
be forty (40) years. Other useful life projections may be used if they
are more appropriate than these guidelines; however, the source or
derivation of these projections must be contained in the evidential
summary. The summary should include a discussion of engineering,
economic historical or other evidence.
(ii) If the units being compared have different useful lives, the
petitioner will have to modify his calculation so that the two cash
flows being compared have the length of the shorter useful life. To do
this, (A) use the shorter of the two useful lives in Equations 2 and 5
for both units, and (B) multiply capital investment (I) of the unit with
the longer life (computed with Equation 3) by the following adjustment
factor (A):
where:
R=The useful life of the facility with the longer life.
Q=The useful life of the facility with the shorter life.
k=The discount rate (see paragraph (d)(4) above).
(6) All Federal investment tax credits (ITCi) and depreciation (PRi)
values are those used for Federal income tax purposes and must be
applied consistently throughout the analysis and in a manner consistent
with the Federal tax laws. All investment tax credits allowed under
Federal tax law must be reflected in the computations. The petitioner
must use the method of depreciation which results in the greatest
present value of the cash flow due to the tax and depreciation effect.
The marginal income tax rate (ti) is the firm's anticipated marginal
Federal income tax rate in year i. The relevant investment tax credits,
depreciation methodology, and marginal Federal income tax rates for a
specific exemption petition will be those prescribed by Federal law in
effect (or those tax parameters which are known with certainty will be
in effect) at the time a decision is rendered. (However, if an
investment tax credit expires in a certain year under the law which is
in effect at the time the petition is submitted, the petitioner must
assume that it will in fact expire in that year.)
(7) If powerplants are being compared, the design capacities or the
maximum sustained energy per unit of time that could be produced must be
the same. If installations are being compared, the maximum sustained
energy per unit of time that could be produced must be the same.
(8) All estimated cash outlays must be computed in accordance with
generally accepted accounting principles consistently applied.
(9) The scope of the estimates of relevant costs (as discussed above)
of units being compared must be the same.
(10) All allowances for uncertainty and risk in the cost estimates
must be explicit.
(11) All cash outlays must be net of any government subsidies or
grants.
(e) Evidence in support of the cost calculation. Petitioners for an
exemption which requires the use of the cost calculation shall certify
that the cost of using alternate fuel substantially exceeds the cost of
using oil as primary energy source as calculated in this section. A
brief summary of the petitioner's supporting calculations and estimates
shall be submitted with the certification. The summary should include
the following:
(1) Cash outlays, Investment tax credits, depreciation methodologies,
and anticipated salvage for capital investments including a description
of all major construction and equipment;
(2) Annual cash outlays for operations and maintenance expenses
including the formulas used to compute them; and
(3) Annual cash outlays for delivered fuel expenses including the
formulas used to compute them.
(46 FR 59903, Dec. 7, 1981; 46 FR 63033, Dec. 30, 1981; 47 FR
15314, Apr. 9, 1982; 54 FR 52893, Dec. 22, 1989)
10 CFR 503.7 State approval -- general requirement for new powerplants.
(a) Where approvals by the appropriate State regulatory authority are
required prior to the construction or use of a new powerplant, a
petition for an exemption for consideration by OFE may be submitted to
OFE prior to obtaining such approvals from the State regulatory
authority.
(b) An exemption granted for a powerplant shall not become effective
until an adequate demonstration has been made to OFE that all applicable
approvals required by the State regulatory authorities have been
obtained.
10 CFR 503.8 No alternate power supply -- general requirement for
certain exemptions for new powerplants.
(a) Application. To qualify for an exemption, except in the case of
an exemption for cogeneration units, section 213(c) of the Act requires
a demonstration that, despite reasonable good faith efforts, there is no
alternative supply of electric power available within a reasonable
distance at a reasonable cost without impairing short-run or long-run
reliability of service. If a petitioner is unable to demonstrate that
there is no alternate supply during the first year of operation, OFE
will conclude that the absence of the proposed powerplant will not
impair short-term reliability of service, and as a result will not grant
the exemption. Such action would not impair long-term reliability of
service, since a petition may be submitted for a powerplant that would
begin operation in a subsequent year.
(b) Criteria. To meet the demonstration required under paragraph (a)
of this section, a petitioner must certify that:
(1) A diligent effort has been made to purchase firm power for the
first year of operation to cover all or part of the projected shortfall
at a cost that is less than ten (10) percent above the annualized cost
of generating power from the proposed plant (including the capital,
operation and maintenance expenses, and fuel prices); and
(2)(i) Despite these efforts, the reserve margin in the petitioner's
electric region, normal dispatch area, or service area, in the absence
of the proposed plant, would fall below twenty (20) percent during the
first year of proposed operation; or
(ii) Despite these efforts, the reserve margin will be greater than
twenty (20) percent but reliability of service would be impaired. In
such case, the certification must be related to factors not included in
the calculation of reserve margin, such as transmission constraints.
(c) Evidence. The petition must include the following evidence in
order to make the demonstration required by this section:
(1) Duly executed certification required under paragraph (b) of this
section; and
(2) Exhibits containing the basis for the certification submitted
under this section (including those factual and analytical materials
deemed by the petitioner to be sufficient to support its certification
to this general requirement).
(d) FERC consultation. OFE will forward a copy of any petition for
which a showing is required under this section to FERC promptly after it
is filed with OFE, and OFE will consult with FERC before making the no
alternate supply of power finding.
(46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15314, Apr. 9, 1982;
54 FR 52894, Dec. 22, 1989)
10 CFR 503.9 Use of mixtures -- general requirement for certain
permanent exemptions.
(a) Criteria. To qualify for a permanent exemption, except in the
case of an exemption for fuel mixtures, section 213(a)(1) of the Act
requires a demonstration that the use of a mixture of natural gas and
petroleum and an alternate fuel for which an exemption under 10 CFR
503.38 (Fuel mixtures) would be available, would not be economically or
technically feasible.
(b) Evidence. The petition must include the following evidence in
order to make the demonstration required by this section:
(1) Duly executed certifications to the criteria set forth in
paragraph (a) of this section; and
(2) Exhibits containing the basis for the certifications submitted
under this section (including those factual and analytical materials
deemed by the petitioner to be sufficient to support its certifications
to this general requirement.)
Note: In meeting this general requirement, OFE will require a
petitioner to examine only mixtures of oil and coal and natural gas and
coal, or, where petitioner wishes to examine an additional or substitute
mixture, such other alternate fuels as OFE and the petitioner agree are
reasonable to petitioner's circumstances.
(46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989)
10 CFR 503.10 Use of fluidized bed combustion not feasible -- general
requirement for permanent exemptions.
(a) OFE finding. Except in the case of an exemption for fuel
mixtures, OFE may deny permanent exemptions authorized under section 212
of the Act if OFE finds on a site-specific or generic basis that use of
a method of fluidized bed combustion of an alternate fuel is
economically and technically feasible.
(b) Demonstration. If OFE has made such a finding, OFE will deny a
petitioner's request for exemption unless the petitioner demonstrated
that the use of a method of fluidized bed combustion is not economically
or technically feasible. The petition or any supplement thereto
required by OFE must include the following evidence:
(1) If use of a method of fluidized bed combustion were to be
required, evidence that the petitioner would be eligible for a permanent
exemption for lack of alternate fuel supply, site limitations,
environmental requirements, lack of adequate capital, or state or local
requirements; or
(2) Use of a method of fluidized bed combustion is not technically or
economically feasible due to design or special circumstances.
(46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989)
10 CFR 503.11 Alternative sites -- general requirement for permanent
exemptions for new powerplants.
(a) Criteria. To qualify for permanent exemption due to lack of
alternate fuel supply, site limitations, environmental requirements, or
inadequate capital, section 212(a) of the Act requires a demonstration
that one of these exemptions would be available for any reasonable
alternative site for the facility.
(b) Evidence. The petition must include the following evidence in
order to make the demonstration required by this section:
(1) Duly executed certifications to the criteria set forth in
paragraph (a) of this section; and
(2) Exhibits containing the basis for the certifications submitted
under this section (including those factual and analytical materials
deemed by the petitioner to be sufficient to support its certifications
to this general requirement).
(46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989)
10 CFR 503.12 Terms and conditions; compliance plans.
(a) Terms and conditions generally. A petitioner must comply with
any terms and conditions imposed upon the grant of an exemption
petition. OFE will limit any such terms and conditions to the unit(s)
which is the subject of the petition.
(b) Compliance plans for temporary exemptions. (1) Any compliance
plan required to accompany a petition for a temporary exemption shall
include the following:
(i) A detailed schedule of progressive events and the dates upon
which the events are to take place, indicating how compliance with the
applicable prohibitions of the Act will occur;
(ii) Evidence of binding contracts for fuel, or for facilities for
the production of fuel, which are required for compliance with the
applicable prohibitions of the Act;
(iii) A schedule indicating how any necessary permits and approvals
required to burn an alternate fuel will be obtained; and
(iv) Any other documentary evidence which indicates an ability to
comply with the applicable prohibitions of the Act.
(2) Any exemption for which a compliance plan is required shall not
be effective until the compliance plan is approved by DOE.
(3) If the petition is granted, an updated, duly executed plan must
be submitted to OFE within one (1) month of an alteration of any
milestone in the compliance plan, together with the reasons for the
alteration and its impact upon the scheduling of all other milestones in
the plan.
10 CFR 503.13 Environmental impact analysis.
In order to enable OFE to comply with NEPA, a petitioner must include
the information indicated in this section if a permanent exemption is
requested. Material which has been prepared pursuant to any Federal,
State or local requirement for environmental information for this unit
or site may be incorporated by reference and appended to the petition.
Guidelines issued by OFE for environmental reports should be used in
preparing this analysis (44 FR 63740, November 5, 1979). These
guidelines, which are also available in the OFE public document room,
have been designed to insure that environmental reports follow the
format prescribed by Council on Environmental Quality final regulations
implementing NEPA. The guidelines are subject to discussion at a
prepetition conference and to modification according to the facts of a
particular case.
(a) All petitions for permanent exemptions must contain the following
information:
(1) A description of the facility, including site location, and
surroundings, alternative site(s), the facility's current proposed
operations, its fuel capability, and its pollution abatement systems and
equipment (including those systems and equipment necessary for all fuel
scenarios considered);
(2) A description of the existing environment, including air, water,
and land resources;
(3) Direct and indirect environmental impacts of the proposed action
including impacts of alternative fuel scenarios, and no build
alternatives.
(4) Regulatory requirements governing the facility, including a
description of Federal, State and local requirements for air, water,
noise and solid waste disposal which must be met for each fuel
considered.
(b) For exemptions for cogeneration, the information enumerated below
is to be submitted in lieu of the information required by paragraph (a)
of this section. However, submission of the following information
merely establishes a rebuttable presumption that the grant or denial of
the exemption would have no significant environmental impact. OFE may,
in individual cases, during the course of the administrative proceeding,
determine that additional environmental information is required. In
such cases, the petitioner will be required to submit the information
described in paragraph (a) of this section.
(1) A certification that the petitioner will, prior to operating the
unit under the exemption, secure all applicable environmental permits
and approvals pursuant to, but not limited to, the following: Clean Air
Act, Rivers and Harbors Act, Coastal Zone Management Act, Safe Drinking
Water Act, Resource Conservation and Recovery Act; and
(2) Information required by the following environmental checklist
must be provided and certified as accurate:
Environmental Checklist for FUA Certification Exemptions Instructions
All questions are to be answered by placing a check in the
appropriate box. N/A represents (not applicable). Although it is not
required, the petitioner may elaborate on any question in writing on a
separate sheet of paper.
(46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982;
51 FR 18866, May 22, 1986; 52 FR 658, Jan. 7, 1987; 54 FR 52894, Dec.
22, 1989)
10 CFR 503.14 Fuels search.
Prior to submitting a petition for a permanent exemption for lack of
alternate fuel supply, site limitations, inadequate capital, or state or
local requirements, a petitioner must examine the use of conventional
solid coal as a primary energy source at the site under consideration,
and at reasonable alternative sites. Where a petitioner believes that
its use of such coal would be infeasible, however, and where OFE and the
petitioner can reach accord, it may evaluate use of a different
alternate fuel in lieu of solid coal. A petitioner of these exemptions
must demonstrate for any fuel examined that he would qualify for an
exemption.
(54 FR 52894, Dec. 22, 1989)
10 CFR 503.14 Subpart C -- Temporary Exemptions for New Facilities
10 CFR 503.20 Purpose and scope.
(a) This subpart implements the provisions contained in section 211
of the Act with regard to temporary exemptions for new facilities.
(b) This subpart establishes the criteria and standards which owners
or operators of new powerplants who petition for a temporary exemption
must meet to sustain their burden of proof under the Act.
(c) All petitions for temporary exemptions shall be submitted in
accordance with the procedures set out in part 501 of this chapter and
the applicable requirements of part 503 of these regulations.
(d) The duration of any temporary exemption granted under this
subpart shall be measured from the date that the facility is placed in
service using petroleum or natural gas.
(46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989)
10 CFR 503.21 Lack of alternate fuel supply.
(a) Eligibility. Section 211(a)(1) of the Act provides for a
temporary exemption due to the unavailability of an adequate and
reliable supply of an alternate fuel at a cost which does not
substantially exceed the cost of using imported petroleum. To qualify,
a petitioner must certify that:
(1) A good faith effort has been to obtain an adequate and reliable
supply of an alternate fuel of the quality necessary to conform to the
design and operational requirements of the unit;
(2) For the period of the proposed exemption, the cost of using such
alternate fuel would substantially exceed the cost of using imported
petroleum as a primary energy source as defined in 503.6 (Cost
calculation) of these regulations;
(3) The petitioner will be able to comply with the applicable
prohibitions of the Act at the end of the proposed exemption period;
and
(4) No alternate power supply exists, as required under 503.8 of
these regulations.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of this
section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(3) All data required by 503.6 (cost calculation) of these
regulations necessary for computing the cost calculation formula; and
(4) The anticipated duration of the lack of alternate fuel supply
which constitutes the basis for the exemption.
(c) Duration. This temporary exemption, taking into account any
extensions or renewals, may not exceed 10 years.
(46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982;
54 FR 52894, Dec. 22, 1989)
10 CFR 503.22 Site limitations.
(a) Eligibility. Section 211(a)(2) of the Act provides for a
temporary exemption due to a site limitation. To qualify for such an
exemption, a petitioner must certify that:
(1) One or more specific physical limitations relevant to the
location or operation of the proposed facility exist which, despite
diligent good faith efforts, cannot be overcome before the end of the
proposed exemption period;
(2) The petitioner will be able to comply with the applicable
prohibitions of the Act at the end of the proposed exemption period;
and
(3) No alternate power supply exists, as required under 503.8 of
these regulations.
Note: Examples of the types of site limitations to which a
petitioner may certify in order to qualify for this exemption include:
(i) Inaccessability of alternate fuels as a result of a specific
physical limitation;
(ii) Unavailability of transportation facilities for alternate fuels;
(iii) Unavailability of adequate land or facilities for handling,
using, or storing an alternate fuel;
(iv) Unavailability of adequate land or facilities for controlling
and disposing of wastes, including pollution control equipment or
devices necessary to assure compliance with applicable environmental
requirements;
(v) Unavailability of adequate and reliable supply of water,
including water for use in compliance with applicable environmental
requirements; or
(vi) Other site limitations exist which will not permit the location
or operation of the proposed unit using an alternate fuel.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of this
section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption); and
(3) The anticipated duration of the site limitation which constitutes
the basis for the exemption.
(c) Duration. This temporary exemption, taking into account any
extensions and renewals, may not exceed five years.
(46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989)
10 CFR 503.23 Inability to comply with applicable environmental
requirements.
(a) Eligibility. Section 211(a)(3) of the Act provides for a
temporary exemption due to an inability to comply with applicable
environmental requirements. To qualify a petitioner must demonstrate
that despite diligent good faith efforts:
(1) The petitioner will be unable, as of the projected date of
commencement of operation, to comply with the applicable prohibitions of
the Act without violating applicable Federal or State environmental
requirements; and
(2) The petitioner will be able to comply with the applicable
prohibitions of the Act and with applicable environmental requirements
by the end of the temporary exemption period.
Note: (1) For purposes of considering an exemption under this
section, OFE's decision will be based solely on an analysis of the
petitioner's capacity to physically achieve applicable environmental
requirements. The petition should be directed toward those conditions
or circumstances which make it physically impossible to comply during
the temporary exemption period. The cost of compliance is not relevant,
but cost-related considerations may be presented as part of a
demonstration submitted under 503.21.
(2) Prior to submitting an exemption petition, it is recommended that
a meeting be requested with OFE and EPA or the appropriate State or
local regulatory agency to discuss options for operating an alternate
fuel fired facility in compliance with applicable environmental
requirements.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Where the petitioner has applied for a construction permit from
EPA or an appropriate State agency prior to petitioning for an exemption
under this section, a copy of that application and synopsis of
supporting documents filed with or subsequent to that application must
be submitted to OFE with the petition or at the time filed with the
permitting agency;
(2) To the extent applicable, a copy of the EPA or State denial of
the construction permit application;
(3) To the extent applicable, a synopsis of the administrative record
of the EPA or State or local permit proceedings;
(4) To the extent applicable, a summary of the technology upon which
the denial was based, including a performance comparison between the
proposed technology and that technology which would provide the maximum
possible reduction of pollution;
(5) An examination of the environmental compliance of the facility,
including an analysis of its ability to meet applicable standards and
criteria when using both the proposed fuel and the alternate fuel(s)
which would provide the basis for exemption. All such analysis must be
based on accepted analytical techniques, such as air quality modeling,
and reflect current conditions of the area which would be affected by
the facility. The petitioner is responsible for obtaining the necessary
data to accurately characterize these conditions. Environmental
compliance must be examined in the context of available pollution
control equipment which would provide the maximum possible reduction of
pollution. The analysis must contain: (i) Requests for bids and other
inquiries made and responses received by the petitioner concerning the
availability and performance of pollution control equipment; (ii)
contracts signed, if any, for an alternate fuel supply and for the
purchase and installation of pollution control equipment; or (iii)
other comparable evidence such as technical studies documenting the
efficacy of equipment to meet applicable requirements;
(6) An examination of any regulatory options available to the
petitioner in seeking to achieve environmental compliance (such as
offsets, variances, and State Implementation Plan revisions);
(7) Any other documentation which demonstrates an inability to comply
with applicable environmental requirements;
(8) No alternate power supply exists, as required under 503.8 of
these regulations.
(c) Duration. This temporary exemption, taking into account any
extension and renewals, may not exceed 5 years.
(d) Certification alternative. (1) To qualify for this exemption, in
lieu of meeting the evidentiary requirements of paragraph (b) of this
chapter, a petitioner may certify that, for the period of the exemption:
(i) The site for the facility is or will be located in a Class I area
or Class II area in which the allowable increment established by law has
been consumed, as defined in part C of the Clean Air Act; the use of an
alternate fuel will cause or contribute to concentrations of pollutants
which would exceed the maximum allowable increases in a Class I or Class
II area even with the application of best available control technology;
the site for the facility is or will be located in a non-attainment area
as defined in part D of the Clean Air Act for any pollutant which would
be emitted by the facility; or, even with the application of the lowest
achievable emission rate, the use of an alternate fuel will cause or
contribute to concentrations in an air quality control region, of a
pollutant for which any national ambient air quality standard is or
would be exceeded; and
(ii) No alternate power supply exists, as required under 503.8 of
these regulations.
(2) A petition by certification under this paragraph must include:
(i) Duly executed certifications required under paragraph (d)(1) of
this section;
(ii) Exhibits containing the basis for the certifications required
under paragraph (d)(1) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption); and
(iii) The anticipated duration of the circumstances which constitute
the basis for the exemption.
(46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989)
10 CFR 503.24 Future use of synthetic fuels.
(a) Eligibility. Section 211(b) of the Act provides for a temporary
exemption based upon the future use of synthetic fuels. To qualify, a
petitioner must certify that:
(1) The petitioner will be able to comply with the applicable
prohibitions imposed by the Act by the use of a synthetic fuel derived
from coal or another alternate fuel as a primary energy source in the
proposed facility by the end of the proposed exemption period;
(2) The petitioner will not be able to comply with the applicable
prohibitions imposed by the Act by use of a synthetic fuel until the end
of the proposed exemption period; and
(3) No alternate power supply exists, as required under 503.8 of
these regulations.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of this
section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption); and
(3) A preliminary compliance plan, including to the extent available,
the information required under 503.12.
(c) Final Compliance Plan. Before an exemption may become effective,
the petitioner must submit and OFE must approve a final compliance plan
as required by 503.12.
(d) Duration. This temporary exemption may be granted for a period
of up to ten (10) years. Unless the petitioner requests otherwise, any
temporary exemption from the fuel use prohibitions of the Act for the
future use of synthetic fuels will commence on the date of commercial
operation of the facility.
Note: Contracts based on the anticipated successful demonstration of
a development program and/or the anticipated economic feasibility of a
synthetic fuels facility, will generally be sufficient to meet the
''binding contract'' requirements for this exemption.
(46 FR 59903, Dec. 7, 1981; 47 FR 15315, Apr. 9, 1982; 54 FR 52894,
Dec. 22, 1989)
10 CFR 503.25 Public interest.
(a) Eligibility. Section 211(c) of the Act provides for a temporary
public interest exemption. To qualify, a petitioner must demonstrate
that:
(1) The unit will be capable of complying with the applicable
prohibitions at the end of the proposed exemption period;
(2) The granting of the exemption would be in accord with the
purposes of the Act and would be in the public interest; and
(3) No alternate power supply exists, as required under 503.8 of
these regulations.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Substantial evidence to corroborate the eligibility requirements
identified above; and
(2) The anticipated duration of the circumstances which constitute
the basis for the exemption.
(c) Certification alternative. If the petitioner requires use of oil
or natural gas in a unit, during the construction of an alternate-fuel
fired unit, the petitioner may substitute, in lieu of the evidentiary
requirements of paragraphs (b)(1) and (2) of this section:
(1) A duly executed certification, including the requested duration
of the exemption, that the unit will be operated on oil or natural gas
only during the construction of an alternate fuel fired unit to be owned
or operated by the petitioner; and
(2) Exhibits containing the basis for the certifications required
under paragraph (c)(1) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption).
(d) Duration. This temporary exemption, taking into account
extension and renewals, may not exceed 5 years.
(46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52894, Dec. 22, 1989)
10 CFR 503.25 Subpart D -- Permanent Exemptions for New Facilities
10 CFR 503.30 Purpose and scope.
(a) This subpart implements the provisions contained in section 212
of the Act with regard to permanent exemptions for new facilities.
(b) This subpart establishes the criteria and standards which owners
or operators of new powerplants and installations who petition for a
permanent exemption must meet to sustain their burden of proof under the
Act.
(c) All petitions for permanent exemptions for new facilities shall
be submitted in accordance with the procedures set out in part 501 of
this chapter and the applicable requirements of part 503 of these
regulations.
10 CFR 503.31 Lack of alternate fuel supply for the first 10 years of
useful life.
(a) Eligibility. Section 212(a)(1)(A)(i) of the Act provides for a
permanent exemption due to lack of an adequate and reliable supply of
alternate fuel within the first 10 years of useful life of the proposed
unit. To qualify, a petitioner must certify that:
(1) A good faith effort has been made to obtain an adequate and
reliable supply of an alternate fuel for use as a primary energy source
of the quality and quantity necessary to conform with the design and
operational requirements of the unit;
(2) Such a supply is not likely to be available within the first 10
years of useful life of the proposed unit;
(3) No alternate power supply exists, as required under 503.8 of
these regulations;
(4) Use of mixtures is not feasible, as required under 503.9 of
these regulations; and
(5) Alternative sites are not available, as required under 503.11 of
these regulations.
(b) Evidence required in support of a petition. A petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of this
section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(3) Environmental impact analysis, as required under 503.13 of these
regulations; and
(4) Fuels search, as required under 503.14 of these regulations.
(46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52895, Dec. 22, 1989)
10 CFR 503.32 Lack of alternate fuel supply at a cost which does not
substantially exceed the cost of using imported petroleum.
(a) Eligibility. Section 212(a)(1) (A)(ii) of the Act provides for a
permanent exemption due to lack of an alternate fuel supply at a cost
which does not substantially exceed the cost of using imported
petroleum. To qualify a petitioner must certify that:
(1) A good faith effort has been made to obtain an adequate and
reliable supply of an alternate fuel for use as a primary energy source
of the quality and quantity necessary to conform with the design and
operational requirements of the proposed unit;
(2) The cost of using such a supply would substantially exceed the
cost of using imported petroleum as a primary energy source during the
useful life of the proposed unit as defined in 503.6 (cost calculation)
of these regulations;
(3) No alternate power supply exists, as required under 503.8 of
these regulations.
(4) Use of mixtures is not feasible, as required under 503.9 of
these regulations; and
(5) Alternative sites are not available, as required under 503.11 of
these regulations.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of this
section;
(2) Exhibits containing the basis for certifications required under
paragraph (a) of this section (including those factual and analytical
materials deemed by the petitioner to be sufficient to support the
granting of this exemption);
(3) Environmental impact analysis, as required under 503.13 of these
regulations;
(4) Fuels search, as required under 503.14 of these regulations;
and
(5) All data required by 503.6 (cost calculation) of these
regulations necessary for computing the cost calculation formula.
(46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982;
54 FR 52895, Dec. 22, 1989)
10 CFR 503.33 Site limitations.
(a) Eligibility. Section 212(a)(1)(B) of the Act provides for a
permanent exemption due to site limitations. To qualify for such an
exemption, a petitioner must certify that:
(1) One or more specific physical limitations relevant to the
location or operation of the proposed facility exist which, despite good
faith efforts, cannot reasonably be expected to be overcome within five
years after commencement of operations;
(2) No alternate power supply exists, as required under 503.8 of
these regulations;
(3) Use of mixtures is not feasible, as required under 503.9 of
these regulations; and
(4) Alternative sites are not available, as required under 503.11 of
these regulations.
Note: Examples of the types of site limitations to which a
petitioner may certify in order to qualify for this exemption include:
(i) Inaccessibility of alternate fuels as a result of a specific
physical limitation;
(ii) Unavailability of transportation facilities for alternate fuels;
(iii) Unavailability of adequate land or facilities for handling,
using or storing an alternate fuel;
(iv) Unavailability of adequate land or facilities for controlling
and disposing of wastes, including pollution control equipment or
devices necessary to assure compliance with applicable environmental
requirements;
(v) Unavailability of adequate and reliable supply of water,
including water for use in compliance with applicable environmental
requirements; or
(vi) Other site limitations exist which will not permit the location
or operation of the proposed unit using an alternate fuel.
(b) Evidence required in support of the petition. A petitioner must
include in the petition the following evidence in order to make the
demonstration required by this section:
(1) Duly executed certifications required under paragraph (a) of this
section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(3) Environmental impact analysis, as required under 503.13 of these
regulations; and
(4) Fuels search, as required under 503.14 of these regulations.
(46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52895, Dec. 22, 1989)
10 CFR 503.34 Inability to comply with applicable environmental
requirements.
(a) Eligibility. Section 212(a)(1)(C) of the Act provides for a
permanent exemption due to the inability to comply with applicable
environmental requirements. To qualify, a petitioner must demonstrate
that despite good faith efforts:
(1) The petitioner will be unable within 5 years after beginning
operation, to comply with the applicable prohibitions imposed by the Act
without violating applicable Federal or state environmental
requirements; and
(2) Reasonable alternative sites, which would permit the use of
alternate fuels in compliance with applicable Federal or state
environmental requirements, are not available.
Note: (1) For purposes of considering an exemption under this
section, OFE's decision will be based solely on an analysis of the
petitioner's capacity to physically achieve applicable environmental
requirements. The cost of compliance is not relevant, but cost-related
considerations may be presented as part of a demonstration submitted
under 503.32 (Lack of alternate fuel supply).
(2) Prior to deciding to submit an exemption petition, it is
recommended that a petitioner request a meeting with OFE and EPA or the
appropriate state or local regulatory agency to discuss options for
operating an alternate fuel-fired facility in compliance with the
applicable environmental requirements.
(b) (Reserved)
(c) Evidence required in support of a petition. The petitioner must
include in the petition the following evidence in order to make the
demonstration required by this section:
(1) Where the petitioner has applied for a construction permit from
EPA or an appropriate state agency prior to petitioning for an exemption
from OFE under this section, a copy of such application and a synopsis
of all supporting documents filed with or subsequent to the application
must be submitted to OFE with the petition or at the time filed with the
permitting agency;
(2) To the extent applicable, a copy of the EPA or state denial of
the construction permit application;
(3) To the extent applicable, a synopsis of the administrative record
of the EPA or state or local permit proceedings;
(4) To the extent applicable, a summary of the technology upon which
the denial was based, including a performance comparison between the
proposed technology and that technology which provides the maximum
possible reduction of pollution;
(5) An examination of the environmental compliance of the facility,
including an analysis of its ability to meet applicable standards and
criteria when using both the proposed fuel and the alternate fuel(s)
which would provide the basis for the exemption. All such analysis must
be based on accepted analytical techniques, such as air quality
modeling, and reflect current conditions of the area which would be
affected by the facility. The petitioner is responsible for obtaining
the necessary data to accurately characterize these conditions.
Environmental compliance must be examined in the context of available
pollution control equipment which would provide the maximum possible
reduction of pollution. The analysis must contain: (i) Requests for
bids and other inquiries made and responses received by the petitioner
concerning the availability and performance of pollution control
equipment; or (ii) other comparable evidence such as technical studies
documenting the efficacy of equipment to meet applicable requirements;
(6) An examination of any regulatory options available to the
petitioner in seeking to achieve environmental compliance (such as
offsets, variances and State Implementation Plan (SIP) revisions); and
(7) Any other documentation which demonstrates an inability to comply
with applicable environmental requirements;
(8) No alternate power supply exists as required under 503.8 of
these regulations;
(9) Use of mixtures is not feasible, as required under 503.9 of
these regulations;
(10) Alternative sites are not available, as required under 503.11
of these regulations;
(11) Environmental impact analysis, as required under 503.13 of
these regulations; and
(12) Fuels search, as required under 503.14 of these regulations.
(d) Certification alternative. (1) To qualify for this exemption, in
lieu of meeting the evidentiary requirements of paragraph (c) of this
section, a petitioner may certify that:
(i) The site for the facility is or will be located in a Class I area
or Class II area in which the allowable increment established by law has
been consumed, as defined in part C of the Clean Air Act; the use of an
alternate fuel will cause or contribute to concentrations of pollutants
which would exceed the maximum allowable increases in a Class I or Class
II area even with the application of best available control technology;
the site for the facility is or will be located in a non-attainment area
as defined in part D of the Clean Air Act for any pollutant which would
be emitted by the facility; or, even with the application of the lowest
achievable emission rate, the use of an alternate fuel will cause or
contribute to concentrations in an air quality control region of a
pollutant for which any national ambient air quality standard is or
would be exceeded;
(ii) No alternate power supply exists, as required under 503.8 of
these regulations;
(iii) Alternative sites are not available, as required under 503.11
of these regulations; and
(iv) Use of mixtures is not feasible, as required under 503.19 of
these regulations.
(2) A petition by certification under this paragraph must include:
(i) Duly executed certifications required under paragraph (d)(1) of
this section;
(ii) Exhibits containing the basis for the certifications required
under paragraph (d)(1) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(iii) Environmental impact analysis, as required under 503.13 of
these regulations; and
(iv) Fuels search, as required under 503.14 of these regulations.
(46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52895, Dec. 22, 1989)
10 CFR 503.35 Inability to obtain adequate capital.
(a) Eligibility. Section 212(a)(1)(D) of the Act provides for a
permanent exemption due to inability to obtain adequate capital. To
qualify, a petitioner must certify that:
(1) Despite good faith efforts the petitioner will be unable to
comply with the applicable prohibitions imposed by the Act because the
additional capital required for an alternate fuel-capable unit beyond
that required for the proposed unit cannot be raised;
(2) The additional capital cannot be raised:
(i) Due to specific restrictions (e.g., convenants on existing bonds)
which constrain management's ability to raise debt or equity captial;
(ii) Without a substantial dilution of shareholder equity;
(iii) Without an unreasonably adverse affect on the utility's credit
rating; or
(iv) In the case of non-investor-owned public utilities, without
jeopardizing the utility's ability to recover its capital investment,
through tariffs, without unreasonably adverse economic effect on its
service area (such as adverse impacts on local industry or undue
hardship to ratepayers).
(3) No alternative power supply exists, as required under 503.8 of
these regulations;
(4) Use of mixtures is not feasible, as required under 503.9 of
these regulations; and
(5) Alternative sites are not available, as required under 503.11 of
these regulations.
(b) Evidence required in support of a petition. A petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of this
section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(3) Environmental impact analysis, as required under 503.13 of these
regulations; and
(4) Fuels search, as required under 503.14 of these regulations.
(46 FR 59903, Dec. 7, 1981, as amended at 47 FR 15315, Apr. 9, 1982;
54 FR 52895, Dec. 22, 1989)
10 CFR 503.36 State of local requirements.
(a) Eligibility. Section 212(b) of the Act provides for an exemption
due to certain State or local requirements. To qualify a petitioner
must certify that:
(1) With respect to the proposed site of the unit, the operation or
construction of the new unit using an alternate fuel is infeasible
because of a State of local requirement other than a building code,
nuisance, or zoning law;
(2) The petitioner has made a good faith effort to obtain a variance
from the State or local requirement but has been unable to do so or has
demonstrated why none is available;
(3) The granting of the exemption would be in the public interest and
would be consistent with the purposes of the Act;
(4) The petitioner is not entitled to an exemption for lack of
alternate fuel supply, site limitation, environmental requirements, or
inability to obtain adequate capital at the site of the proposed
powerplant or at any reasonable alternative site for the alternate
fuel(s) considered;
(5) At the proposed site and every reasonable alternative site where
the petitioner is not entitled to an exemption for lack of alternate
fuel supply, site limitation, environmental requirements, or inability
to obtain adequate capital, the petitioner nevertheless would be barred
at each such proposed or alternate site from burning an alternate fuel
by reason of a State or local requirement;
(6) No alternate power supply exists, as required under 503.8 of
these regulations; and
(7) Use of mixtures is not feasible, as required under 503.9 of
these regulations.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of this
section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(3) Environmental impact analysis, as required under 503.13 of these
regulations; and
(4) Fuels search, as required under 503.14 of these regulations.
(46 FR 59903, Dec. 7, 1981; 46 FR 63033, Dec. 30, 1981, as amended
at 54 FR 52895, Dec. 22, 1989)
10 CFR 503.37 Cogeneration.
The following table may be used to determine eligibility for a
permanent exemption based on oil and natural gas savings.
Data are based upon 1987 oil, natural gas and electricity statistics
published by DOE's Energy Information Administration.
Example: The proposed cogeneration project is to be located in
Massachusetts and is to use distillate oil. It will have a capacity of
50 MW, an average annual heat rate of 7600 BTU/KWHR, and be operated at
a capacity factor of 90%. The annual fuel consumption is therefore
calculated to be 2,996 10 /9/ Btu/yr. (50,000 KW 7600 BTU/KWHR .9 8760
HR/YR) The oil and gas backed off the grid would be calculated to be
.2070 10 /9/ BTU/YR. (50,000 KW 5250 BTU/KWHR .9 8760 HR/YR) since the
proposed unit would consume more oil that would be ''backed off'' the
grid, the unit would not be eligible for a permanent exemption based on
savings of oil and natural gas.
(54 FR 52895, Dec. 22, 1989)
10 CFR 503.38 Permanent exemption for certain fuel mixtures containing
natural gas or petroleum.
(a) Eligibility. Section 212(d) of the Act provides for a permanent
exemption for certain fuel mixtures. To qualify a petitioner must
certify that:
(1) The petitioner proposes to use a mixture of natural gas or
petroleum and an alternate fuel as a primary energy source;
(2) The amount of petroleum or natural gas proposed to be used in the
mixture will not exceed the minimum percentage of the total annual Btu
heat input of the primary energy sources needed to maintain operational
reliability of the unit consistent with maintaining a reasonable level
of fuel efficiency; and
(3) No alternate power supply exists, as required under 503.8 of
these regulations.
(b) Evidence required in support of a petition. The petition must
include the following evidence in order to make the demonstration
required by this section:
(1) Duly executed certifications required under paragraph (a) of this
section;
(2) Exhibits containing the basis for the certifications required
under paragraph (a) of this section (including those factual and
analytical materials deemed by the petitioner to be sufficient to
support the granting of this exemption);
(3) A description of the fuel mixture, including component fuels and
the percentage of each such fuel to be used; and
(4) Environmental impact analysis as required under 503.13 of these
regulations.
(c) Solar mixtures. OFE will grant a permanent mixtures exemption
for the use of a mixture of solar energy (including wind, tide, and
other intermittent sources) and petroleum or natural gas, where:
(1) Solar energy will account for at least 20 percent of the total
annual Btu heat input, of the primary energy sources of the unit; and
(2) Petitioner meets the eligibility and evidentiary requirements of
paragraphs (a) and (c) of this section.
(46 FR 59903, Dec. 7, 1981, as amended at 54 FR 52896, Dec. 22, 1989)
503.39-44 (Reserved)
10 CFR 503.38 Pt. 504
10 CFR 503.38 PART 504 -- EXISTING POWERPLANTS
504.2 Purpose and scope.
504.3-504.4 (Reserved)
504.5 Prohibitions by order (certifying powerplants under section 301
of FUA, as amended).
504.6 Prohibitions by order (case-by-case).
504.7 Prohibition against excessive use of petroleum or natural gas
in mixtures -- electing powerplants.
504.8 Prohibitions against excessive use of petroleum or natural gas
in mixtures -- certifying powerplants.
504.9 Environmental requirements for certifying powerplants.
Appendix I -- Procedures for the Computation of the Real Cost of
Capital
Appendix II -- Fuel Price Computation
Authority: Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565 (42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel
Use Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et
seq.); Energy Security Act, Pub. L. 96-294, 94 Stat. 611 (42 U.S.C.
8701 et seq.); E.O. 1209, 42 FR 46267, September 15, 1977.
Source: 45 FR 53692, Aug. 12, 1980, unless otherwise noted.
(Approved by the Office of Management and Budget under control number
1903-0075. See 46 FR 63209, Dec. 31, 1981.)
Editorial Note: Nomenclature changes to this part appear at 54 FR
52896, Dec. 22, 1989.
10 CFR 504.2 Purpose and scope.
(a) Sections 504.5, 504.6, and 504.8, set forth the prohibitions that
OFP, pursuant to section 301 of the Act, as amended, may impose upon
existing powerplants after a review of the certification and prohibition
order compliance schedule submitted by the owner or operator of a
powerplant. Sections 504.5 and 504.8 are explanatory sections, and
504.6 provides the informational requirements necessary to support the
certification.
(b) Sections 504.6 and 504.7, set forth the prohibitions that OFP may
impose upon certain electing powerplants, pursuant to former section 301
(b) and (c) of FUA, where OFP can make the findings as to the unit's
technical capability and financial feasibility to use coal or another
alternate fuel as a primary energy source. The prohibitions may be made
to apply to electing powerplants unless an exemption is granted by OFP
under the provisions of the Final Rule for Existing Facilities (10 CFR
parts 500, 501 and 504) published at 45 FR 53682, Aug. 12, 1980 and 46
FR 59872, Dec. 7, 1981. Any person who owns, controls, rents or leases
an existing electing powerplant may be subject to the prohibitions
imposed by and the sanctions provided for in the Act or these
regulations, if OFP can make the findings required by former section 301
(b) and (c) of FUA.
(Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565
(42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of
1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus
Budget Reconciliation Act of 1981, Pub. L. 97-35; E.O. 12009, 42 FR
46267, Sept. 15, 1977)
(47 FR 50849, Nov. 10, 1982)
504.3-504.4 (Reserved)
10 CFR 504.5 Prohibitions by order (certifying powerplants under
section 301 of FUA, as amended).
(a) In the case of existing powerplants, OFP may prohibit, in
accordance with section 301 of the Act, as amended, the use of petroleum
or natural gas as a primary energy source where the owner or operator of
the powerplant presents a complete certification concurred in by OFP.
The certification, which may be presented at any time, pertains to the
unit's technical capability and financial feasibility to use coal or
another alternate fuel as a primary energy source in the unit. The
informational requirements necessary to support a certification are
contained in 504.6 of these regulations. A prohibition compliance
schedule which meets the requirements of 504.5(d) shall also be
submitted.
(b) If OFP concurs with the certification, a prohibition order on the
powerplant's use of petroleum or natural gas will be issued following
the procedure outlined in 501.52 of these regulations.
(c) The petitioner may amend its certification at any time prior to
the effective date of the prohibitions contained in the final
prohibition order in order to take into account changes in relevant
facts and circumstances by following the procedure contained in
501.52(d).
(d) Prohibition order compliance schedule. The certification
described above, which forms the basis for the issuance of a prohibition
order to a powerplant, shall include a prohibition order compliance
schedule. The compliance schedule should contain the following:
(1) A schedule of progressive events involved in the conversion
project, including construction of any facilities for the production of
fuel or fuel handling equipment, and contracts for the purchase of
alternate fuels, and estimated date of compliance with the applicable
prohibitions of the Act; and
(2) A schedule indicating estimated dates for obtaining necessary
federal, state, and local permits and approvals. Any prohibition order
issued under the certification provisions of 504.5, 504.6, and 504.8
will be subject to appropriate conditions subsequent so as to delay the
effectiveness of the prohibitions contained in the final prohibition
order until the above events or permits have occurred or been obtained.
(Approved by the Office of Management and Budget under control number
1903-0077)
(Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C.
7101 et seq.); Energy Supply and Environmental Coordination Act of
1974, Pub. L. 93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and
Pub. L. 95-620 (15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel
Use Act of 1978, Pub. L. 95-620, as amended by Pub. L. 97-35 (42 U.S.C.
8301 et seq.); Omnibus Budget Reconciliation Act of 1981, Pub. L.
97-35)
(47 FR 17044, Apr. 21, 1982)
10 CFR 504.6 Prohibitions by order (case-by-case).
(a) OFP may prohibit, by order, the use of natural gas or petroleum
as a primary energy source in existing powerplants under certain
circumstances. In the case of certifying powerplants under section 301
of the Act, as amended, the petitioner must present evidence to support
the certification, required by 504.6 (c), (d), (e), and (f). In the
case of electing powerplants, OFP must make the following findings
required by 504.6 (c), (d), (e), and (f), in order to issue a
prohibition order to the unit, pursuant to former section 301 (b) or
(c):
(1) The unit currently has, or previously had, the technical
capability to use an alternate fuel as a primary energy source;
(2) The unit has this technical capability now, or it could have the
technical capability without:
(i) A substantial physical modification of the unit; or
(ii) A substantial reduction in the rated capacity of the unit; and
(3) It is financially feasible for the unit to use an alternate fuel
as its primary energy source.
(b) In the case of electing powerplants, OFP must make a proposed
finding regarding the technical capability of a unit to use alternate
fuel as identified in paragraph (a) (1) of this section prior to the
date of publication of the notice of the proposed prohibition. OFP will
publish this finding in the Federal Register along with the notice of
the proposed prohibition.
(c) Technical capability. (1) In the case of electing and certifying
powerplants, OFP will consider ''technical capability'' on a
case-by-case basis in order to make the required finding. In the case
of a certifying powerplant, the powerplant should present information to
support the certification relevant to the considerations set forth
below. OFP will consider the ability of the unit, from the point of
fuel intake to physically sustain combustion of a given fuel and to
maintain heat transfer. /2/
(2) OFP considers that a unit ''had'' the technical capability to use
an alternate fuel if the unit was once able to burn that fuel
(regardless of whether the unit was expressly designed to burn that fuel
or whether it ever actually did burn it), but is no longer able to do so
at the present due to temporary or permanent alterations to the unit
itself. 3
(3) A unit ''has'' the technical capability to use an alternate fuel
if it can burn an alternate fuel, notwithstanding the fact that
adjustments must be made to the unit beforehand or that pollution
control equipment may be required to meet air quality requirements. 4
(d) Substantial physical modification. In the case of electing and
certifying powerplants, OFP will make its determination on whether a
physical modification to a unit is ''substantial'' on a case-by-case
basis. In the case of certifying powerplants, OFP will consider the
factors set forth below for the purpose of concurrence in the
certification. OFP will consider physical modifications made to the
unit as ''substantial'' where warranted by the magnitude and complexity
of the engineering task or where the modification would impact severely
upon operations at the site. /5/ OFP will not, however, assess physical
modification on the basis of cost.
(e) Substantial reduction in rated capacity. In the case of electing
and certifying powerplants, OFP will make this determination on the
basis of the following factors. A certifying powerplant should present
information to support its certification regarding these factors in
order for OFP to make its review for concurrence.
(1) OFP regards a unit's derating of 25 percent or more, as a result
of converting a unit from oil or gas to an alternate fuel, as
substantial.
(2) OFP will presume that a derating of less than 10 percent, as a
result of converting a unit from oil or gas to an alternate fuel, is not
substantial unless convincing evidence to the contrary is submitted in
rebuttal. 6
(3) OFP will assess units for which a derating is claimed of 10
percent or more, but less than 25 percent, on a case-by-case.
(4) In assessing whether a unit's derating is not substantial, OFP
will consider the impact of a reduction in rated capacity of the unit
taking into consideration all necessary appurtenances such as air
pollution control equipment required to burn an alternate fuel in
compliance with environmental requirements expected to be applicable at
the date the prohibitions contained in the final prohibition order
become effective. However, the potential order recipient may raise in
rebuttal the impact of derating on the site at which the unit is located
and on the system as well as on the unit itself, if under paragraph
(e)(2), or case-by-case, if under paragraph (e)(3) of this section.
(f) Financial feasibility. In the case of certifying and electing
powerplants, OFP will make this finding based on the following
considerations. A certifying powerplant should present information to
support its certification relevant to these considerations in order for
OFP to make its review for concurrence. Conversion of a unit to burn
coal or an alternate fuel shall be deemed financially feasible if the
firm has the actual ability to obtain sufficient capital to finance the
conversion, including all necessary land, coal and ash handling
equipment, pollution control equipment, and all other necessary
expenditures, without violating legal restrictions on its ability to
raise debt or equity capital, unreasonably diluting shareholder equity,
or unreasonably adversely affecting its credit rating. OFP will
consider any economic or financial factors presented by the proposed
order recipient in determining the firm's ability or inability to
finance the conversion including, but not limited to, the following:
(1) The required coverage ratios on the firm's debt and preferred
stock;
(2) The firm's investment program; and
(3) The financial impact of the conversion, including other
conversions which are or may be undertaken voluntarily by the proposed
order recipient or imposed upon the recipient's system by the Act, and
including pending or planned construction or reconstruction of
alternate-fuel-fired plants and plants exempt from FUA prohibitions.
/7/ Where helpful in clarifying the long-term financial feasibility of a
conversion, DOE may analyze the economic benefits anticipated from
operation of the converted unit or units using coal or other alternate
fuel relative to those from continued operation using petroleum or
natural gas.
(Approved by the Office of Management and Budget under control number
1903-0077)
(Energy Supply and Environmental Coordination Act of 1974, Pub. L.
93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and 15 U.S.C. 719
et seq.; Department of Energy Organization Act, Pub. L. 95-91, 91 Stat.
565 (42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of
1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus
Budget Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR
46267, Sept. 15, 1977)
(45 FR 53692, Aug. 12, 1980, as amended at 47 FR 17044, Apr. 21,
1982; 47 FR 50849, Nov. 10, 1982)
/2/ OFP will not ordinarily consider the nature or absence of
appurtenances outside the unit. For example, OFP will examine the
furnace configuration and ash removal capability but will not normally
consider the need to install pollution control equipment as a measure of
technical capability. Furthermore, OFP will not normally conclude that
the absence of fuel handling equipment, such as conveyor belts,
pulverizers, or unloading facilities, bears on the issue of a unit's
''technical capability'' to burn an alternate fuel.
3For example, a unit which at one time burned solid coal but which
could no longer do so because its coal firing ports and sluicing
channels had been cemented over, would be classified as having ''had''
the technical capability to use coal. (The question of whether it again
''could have'' such capability without ''substantial physical
modification'' is a separate and additional question.)
4A unit designed to burn natural gas shall be presumed to have the
technical capability to burn a synthetic fuel such as medium Btu gas
from coal (assuming such gas is available unless convincing evidence to
the contrary is submitted in rebuttal). Also a unit designed to burn
oil may, depending upon the chemical characteristics, be a unit that
''has'' the technical capability to burn liquefied coal. The fact that
certain adjustments may be necessary does not render this a
''hypothetical'' as opposed to a ''real'' capability. Even an oil fired
unit converting from the use of 2 distillate to 6 residual oil may be
required to adjust or replace burner nozzles and add soot blowers.
/5/ Generally, modification of a unit to burn coal or an alternate
fuel will be considered insubstantial if significant alterations to the
boiler, such as a change to the furnace configuration or a complete
respacing of the tubes, are not required. Minor alterations such as
replacement of burners or additions of soot blowers, and additions or
alterations outside the boiler, shall not cause the modification to be
substantial.
6For example, units that are the subject of a prohibition order will
not have installed any operating air pollution control equipment
sufficient to burn coal in compliance with applicable environmental
equipments. The installation and use of air pollution control equipment
alone can, in many cases, produce a derating. Moreover, the shift to
coal itself will, because of differences in energy density and fuel flow
characteristics, typically involve some derating.
/7/ OFP will not require the proposed order recipient to cancel or
defer construction or reconstruction of any alternate-fuel-fired
facility, or any facility exempt from the prohibitions of the Act, for
which a decision to finance such facility has been made by the
appropriate company official before the publication of the prohibition
order. The proposed order recipient may choose to cancel or defer any
such facility.
10 CFR 504.7 Prohibition against excessive use of petroleum or natural
gas in mixtures -- electing powerplants.
(a) In the case of electing powerplants, if OFP finds that it is
technically and financially feasible for a unit to use a mixture of
petroleum or natural gas and an alternate fuel as its primary energy
source, OFP may prohibit, by order, the use in that unit of petroleum or
natural gas, or both, in amounts exceeding the minimum amount necessary
to maintain reliability of operation consistent with maintaining
reasonable fuel efficiency of the mixture.
(b) In making the technical feasibility finding required by former
section 301 (b) and (c) of the Act and paragraph (a) of this section,
OFP may weigh ''physical modification'' or ''derating of the unit,'' but
these considerations, by themselves, will not control the technical
feasibility finding. A technical feasibility finding might be made
notwithstanding the need for substantial physical modification. The
economic consequences of a substantial physical modification are taken
into account in determining financial feasibility.
(Energy Supply and Environmental Coordination Act of 1974, Pub. L.
93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and 15 U.S.C. 719
et seq.; Department of Energy Organization Act, Pub. L. 95-91, 91 Stat.
565 (42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use Act of
1978, Pub. L. 95-620, 92 Stat. 3269 (42 U.S.C. 8301 et seq.); Omnibus
Budget Reconciliation Act of 1981 (Pub. L. 97-35); E.O. 12009, 42 FR
46267, Sept. 15, 1977)
(47 FR 17045, Apr. 21, 1982, and 47 FR 50850, Nov. 10, 1982)
10 CFR 504.8 Prohibitions against excessive use of petroleum or natural
gas in mixtures -- certifying powerplants.
(a) In the case of certifying powerplants, OFP may prohibit the use
of petroleum or natural gas in such powerplant in amounts exceeding the
minimum amount necessary to maintain reliability of operation consistent
with maintaining the reasonable fuel efficiency of the mixture. This
authority is contained in section 301(c) of the Act, as amended. The
owner or operator of the powerplant may certify at any time to OFP that
it is technically capable and financially feasible for the unit to use a
mixture of petroleum or natural gas and coal or another alternate fuel
as a primary energy source. In assessing whether the unit is
technically capable of using a mixture of petroleum or natural gas and
coal or another alternate fuel as a primary energy source, for purposes
of this section, the extent of any physical modification necessary to
convert the unit and any concomitant reduction in rated capacity are not
relevant factors. So long as a unit as proposed to be modified would be
technically capable of using the mixture as a primary energy source
under 504.6(c), this certification requirement shall be deemed met.
The criteria for certification of financial feasibility are found at
504.6(f). In addition, the powerplant's owner or operator must submit a
prohibition compliance schedule, which meets the requirements of
504.5(d).
(b) If OFP concurs with the certification, a prohibition order
against the unit's excessive use of petroleum or natural gas in the
mixture will be issued following the procedure outlined in 501.52 of
these regulations.
(c) The petitioner may seek to amend its certification in order to
take into account changes in relevant facts and circumstances by
following the procedure contained in 501.52(d).
Note: The authority of OFP implemented under this section should not
be confused with the other two fuel mixture provisions of these
regulations. One is the general requirement that petitioners for
permanent exemptions demonstrate that the use of a mixture of natural
gas or petroleum and an alternate fuel is not economically or
technically feasible (See 504.15). The second is the permanent fuel
mixtures exemption itself (See 504.56).
(Approved by the Office of Management and Budget under control number
1903-0077)
(Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C.
7101 et seq.); Energy Supply and Environmental Coordination Act of
1974, Pub. L. 93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and
Pub. L. 95-620 (15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel
Use Act of 1978, Pub. L. 95-620, as amended by Pub. L. 97-35 (42 U.S.C.
8301 et seq.); Omnibus Budget Reconciliation Act of 1981, Pub. L.
97-35)
(47 FR 17045, Apr. 21, 1982)
10 CFR 504.9 Environmental requirements for certifying powerplants.
Under 501.52, 504.5 and 504.6 of these regulations, OFP may
prohibit, in accordance with section 301 and section 303 (a) or (b) of
FUA, as amended, the use of natural gas or petroleum, or both, as a
primary energy source in any certifying powerplant. Under sections
301(c) and 303(a) of FUA, as amended, and 501.52, 504.6, and 504.8 of
these regulations, OFP may prohibit the excessive use of natural gas or
petroleum in a mixture with an alternate fuel as a primary energy source
in a certifying powerplant.
(a) NEPA compliance. Except as provided in paragraph (c) of this
section, where the owner or operator of a powerplant seeks to obtain an
OFP prohibition order through the certification procedure, and did not
hold either a proposed prohibition order under former section 301 of FUA
or pending order under section 2 of ESECA, it will be responsible for
the costs of preparing any necessary Environmental Assessment (EA) or
Environmental Impact Statement (EIS) arising from OFP's obligation to
comply with NEPA. The powerplant owner or operator shall enter into a
contract with an independent party selected by OFP, who is qualified to
conduct an environmental review and prepare an EA or EIS, as
appropriate, and who does not have a financial or other interest in the
outcome of the proceedings, under the supervision of OFP. The NEPA
process must be completed and approved before OFP will issue a final
prohibition order based on the certification.
(b) Environmental review procedure. Except as provided in paragraph
(c) of this section, environmental documents, including the EA and EIS,
where necessary, will be prepared utilizing the process set forth above.
OFP, the powerplant owner or operator and the independent third party
shall enter into an agreement for the owner or operator to engage and
pay directly for the services of the qualified third party to prepare
the necessary documents. The third party will execute an OFP prepared
disclosure document stating that he does not have any conflict of
interest, financial or otherwise, in the outcome of either the
environmental process or the prohibition order proceeding. The
agreement shall outline the responsibilities of each party and his
relationship to the other two parties regarding the work to be done or
supervised. OFP shall approve the information to be developed and
supervise the gathering, analysis and presentation of the information.
In addition, OFP will have the authority to approve and modify any
statement, analysis, and conclusion contained in the third party
prepared environmental documents.
(c) Financial hardship. Whenever the bona fide estimate of the costs
associated with NEPA compliance, if borne by the powerplant owner or
operator, would make the conversion financially infeasible, OFP may
waive the requirement set forth in paragraphs (a) and (b) of this
section and perform the necessary environmental review.
(Approved by the Office of Management and Budget under control number
1903-0077)
(Department of Energy Organization Act, Pub. L. 95-91 (42 U.S.C.
7101 et seq.); Energy Supply and Environmental Coordination Act of
1974, Pub. L. 93-319, as amended by Pub. L. 94-163, Pub. L. 95-70, and
Pub. L. 95-620 (15 U.S.C. 719 et seq.); Powerplant and Industrial Fuel
Use Act of 1978, Pub. L. 95-620, as amended by Pub. L. 97-35 (42 U.S.C.
8301 et seq.); Omnibus Budget Reconciliation Act of 1981, Pub. L.
97-35)
(47 FR 17046, Apr. 21, 1982)
10 CFR 504.9 Pt. 504, App. I
10 CFR 504.9 Appendix I -- Procedures for the Computation of the Real
Cost of Capital
(a) The firm's real after-tax weighted average marginal cost of
capital (K) is computed with equation 1.
10 CFR 504.9
The terms in equation 1 are defined as follows:
Wd=Fraction of existing capital structure which is debt.
Wp=Fraction of existing capital structure which is preferred equity.
We=Fraction of existing capital structure which is common equity and
retained earnings.
R3d=Predicted nominal cost of long term debt expressed as a fraction.
R3p=Predicted nominal cost of preferred stock expressed as a
fraction.
R3e=Predicted nominal cost of common stock expressed as a fraction.
INF=Percentage change in the GNP implicit price deflator over the
past 12 months expressed as a fraction.
fd=Flotation cost of debt expressed as a fraction.
fp=Flotation cost of preferred stock expressed as a fraction.
fe=Flotation cost of common stock expressed as a fraction.
t=Marginal federal income tax rate for the current year.
(b) Information on parameters used in Equation 1. (1) The parameters
used in equation 1 will be the best practicable estimates. They will be
obtained from the firm, accepted rating services (e.g., Standard &
Poors, Moody's), government publications, accepted financial
publications, annual financial reports and statements of firms, and
investment bankers.
(2) The predicted nominal cost of debt (R3d) may be estimated by
determining the current average yield on newly issued bonds --
industrial or utility as appropriate -- which have the same rating as
the firm's most recent debt issue.
(3) The predicted nominal cost of preferred stock (R3p) may be
estimated by determining the current average yield on newly issued
preferred stock -- industrial or utility as appropriate -- which has the
same rating as the firm's most recent preferred stock issue.
(4)(A) The predicted nominal cost of common stock (R3e) is computed
with equation 2.
Eq 2 R3e=R3f+B R8m
where:
R3f=The risk free interest rate -- the average of the most recent
auction rates of U.S. Government 13-week Treasury Bills,
B=The ''beta'' coefficient -- the relationship between the excess
return on common stock and the excess return on the S&P 500 composite
index, and
R8m=The mean excess return on the S&P 500 composite index -- the mean
of the difference between the return on the S&P 500 composite index and
the risk free interest rate for the years 1926-1976 as computed by
Ibbotson and Sinquefield(1) -- 9.2%
(B) The ''beta'' coefficient is computed with regression analysis
techniques. The regression equation is Equation 3.
Eq. 3
where
Rft=The risk free interest rate in month t -- the average of the
yields on 13-week treasury bills auctioned in month t.(2)
A=A constant which should not be significantly different than zero.
et=The error in month t.
PRCCt=Closing market prices of the firm's common stock at the end of
month t fully adjusted for splits and stock dividends.
DIVRATEt=The sum of the dividends paid in the fiscal year which
contain month t.
Vsp,t=The market value of ''one share'' of the S&P 500 composite
index at the end of month t.
Dsp,t=The estimated monthly income received from holding ''one
share'' of the S&P 500 in month t.
The regression analysis is done with sixty months of data. The first
month (t=1) is sixty months before the month in which the firm's current
fiscal year started. The last month (t=60) is the last month of the
past fiscal year.
(5) Where the parameters specified above are not obtainable,
alternate parameters that closely correspond to those above may be used.
This may include substituting a bond yield for nominal cost of
preferred stock where the former is not available. Where the capital
structure does not consist of any debt, preferred equity, or common
equity, an alternate methodology to predict the firm's real after-tax
marginal cost of capital may be used.
Example of using alternate parameters that closely correspond to
those above are:
(A) In the case of industrials, who do not typically issue preferred
stock, the predicted nominal cost of preferred stock (R3P) can be
estimated by determining the current average yield on newly issued
industrial bonds which have the same rating as the firm's most recent
debt issue.
(B) If necessary, the following assumptions can be made to determine
the nominal cost of debt or preferred stock and their flotation costs.
(i) Where a company issued privately placed debt that was not rated,
the rating, applied to preferred stock could be used to determine the
cost of debt and its flotation cost.
(ii) Where a company issued privately placed preferred stock that was
not rated, the rating applied to debt could be used to determine the
cost of preferred stock and its flotation costs.
(iii) In the case where all issues were privately placed, the current
average yield on all newly issued debt or preferred could be used to
determine the cost of debt or preferred respectively, and an average
flotation cost, for debt or preferred, could be used.
(C) Evidence Requirements. Copies of this calculation with notations
as to the source of the data must be submitted.
(1) Ibbotson, R.E. and R.A. Sinquefield, Stocks, Bonds, Bills, and
Inflation, Charlottesville, Va.: The Financial Analysts Research
Foundation, 1977, cited by Ernst & Whinney, Costs of Capital and Rates
of Return for Industrial Firms and Class A&B Electric Utility Firms,
June 1979, p. 3-8.
(2) As an option, Rft can be developed with the following equation:
where:
Dt=The average annual yield on three month U.S. Treasury bills
reported in the Survey of Current Business auctioned in month t -- which
is reported using the bank discount method.
N=Number of days to maturity.
(46 FR 59920, Dec. 7, 1981)
10 CFR 504.9 Pt. 504, App. II
10 CFR 504.9 Appendix II -- Fuel Price Computation
(a) Introduction. This appendix provides the equations and
parameters needed to specify the price of the delivered fuels to be used
in the cost calculations associated with parts 503 and 504 of these
regulations. The delivered price of the fuel to be used to calculate
delivered fuel expenses must reflect (1) the price of each fuel at the
time of the petition, and (2) the effects of future real price increases
for each fuel. The delivered price of an alternate fuel used to
calculate delivered fuel expenses must reflect the petitioner's
delivered price of the alternate fuel and the effects of real increases
in the price of that alternate fuel. Paragraphs (b), (c) and (d) below
provide the procedure to: (1) Calculate fuel price and inflation
indices; (2) account for projected real increases in fuel prices when
planning to burn one or more than one fuel; and (3) account for
projected real increases in the price of the alternate fuel. Table II-1
of this appendix (See paragraph (b)) contains example fuel price and
inflation indices based on the latest data appearing in the Energy
Information Administration's (EIA) Annual Energy Outlook (AEO).
The fuel price and inflation indices will change yearly with the
publication of the AEO. Revisions shall become effective after final
publication. However, the relevant set of parameters for a specific
petition for exemption will be the set in effect at the time the
petition is submitted or the set in effect at the time a decision is
rendered, whichever is more favorable to the petitioner.
(b) Computation of Fuel Price and Inflation Indices.
(1) the Petitioner is responsible for computing the annual fuel price
and inflation indices by using Equation II-1 and Equation II-2,
respectively. The petitioner may compute the fuel price index specified
in Equation II-1 or use his own price index. However, if he uses his
own price index, the source or the derivation of the index must be fully
documented and be contained in the evidential summary.
where:
PXi=The fuel price index for each fuel in year i. Pi=Price of fuel
in year i.
Po=Price of fuel in base year.
where:
IXi=The inflation index in year i.
GXi=The NIPA GNP price deflator for year i.
GXo=The NIPA GNP price deflator for the base year.
(2) The parameters to be used in EQ II-1 are the Base Case fuel price
projections found in EIA's current AEO.
(3) When computing annual inflation indices, the petitioner is to use
the Base Case National Macroeconomic Indicators (NIPA GNP Price
Deflator) contained in EIA's current AEO. If necessary, the petitioner
must rebase the projection to the same year used for the fuel price
projections. For example, in 1989 AEO projects the price deflator in
1982 dollars; this must be rebased to the year in which the petition is
filed. The methodology used to rebase the inflation indices must follow
standard statistical procedures and must be fully documented within the
petition. This index will remain frozen at the last year of the AEO's
projection for the remainder of the unit'(s) useful life.
(4) Table II-1 is provided as an example of the application of
equations II-1 and II-2. This table contains annual fuel price indices
for distillate oil, residual oil, natural gas, and coal. It also
contains annual inflation indices. These values were computed from
information contained in Table A3 and Table A11 of EIA's AEO, 1989.
Cost Calculations
(C) Fuel Price Computation.
(1) The delivered price of the proposed fuel to be burned (FPBi) must
reflect the real escalation rate of the proposed fuel, and must be
computed with Equation EQ II-3.
EQ-II-3 is: FPBi=MPB (PXi)
where:
FPBi=Price of the proposed fuel (distillate oil, residual oil, or
natural gas) in year i.
MPB=The current delivered market price of the proposed fuel.
PXi=The fuel price index value in year i, computed with Equation
II-1.
or:
(2) When planning to use more than one fuel in the proposed unit(s),
the petitioner must use Equation II-1 and Equation II-3 to calculate the
annual fuel price of each fuel to be used. The petitioner then must
estimate the proportion of each fuel to be burned annually over the
useful life of the unit(s). With these proportions and the respective
annual fuel prices for each fuel, the petitioner must compute an annual
weighted average fuel price. The methodology used to calculate the
weighted average fuel price must follow standard statistical procedures
and be fully documented within the petition.
(d) Fuel Price Computation -- Alternate Fuel. The delivered price of
alternate fuel (PFAi) must reflect the real escalation rate of alternate
fuel and must be computed with Equation II-4.
Equation II-4 is:
PFAi=APF apxi
where:
PFA=The price of the alternate fuel in year i.
APF^i=The current market price of the alternate fuel f.o.b. the
facility).
APXi=The alternate fuel price index value for year i, computed with
Equation II-1.
In most cases the alternate fuel will be coal. The petitioner must
use Equation II-1 (paragraph (b)) to compute the escalation rate (APXi).
If an alternate fuel other than coal is proposed the souroe or the
derivation of the index must be fully documented and be contained in the
evidential summary.
(54 FR 52896, Dec. 22, 1989)
10 CFR 504.9 Pt. 508
10 CFR 504.9 PART 508 -- (RESERVED)
10 CFR 504.9 Pt. 515
10 CFR 504.9 PART 515 -- TRANSITIONAL FACILITIES
10 CFR 504.9 Subpart A -- General Provisions
Sec.
515.1 Policy.
515.2 Purpose and scope.
10 CFR 504.9 Subpart B -- Electric Powerplants
515.3 Eligibility.
515.4 Powerplants automatically classified as ''new''.
515.5 Powerplants automatically classified as ''existing''.
515.6 Powerplants which ERA will classify as ''existing''.
515.7 Evidence required in support of a request for classification.
10 CFR 504.9 Subpart C -- Major Fuel-Burning Installations
515.10 Eligibility.
515.11 Installations automatically considered to be ''new''.
515.12 Installations automatically considered to be ''existing''.
515.13 Installations which ERA will classify as ''existing''.
515.15 Evidence required in support of a request for classification.
10 CFR 504.9 Subpart D -- Definitions
515.20 Definitions.
10 CFR 504.9 Subpart E -- Administrative Provisions
515.25 Purpose and scope.
515.26 Notice and public comment.
515.27 Conferences.
515.28 Appearance before ERA.
515.29 Computation of time.
515.30 Service.
515.31 General filing requirements.
515.32 Extension of time.
515.33 Effective date of decision.
515.34 Order of precedence.
515.35 Addresses for filing documents with the ERA.
515.36 Office of Public Information.
Authority: Dept. of Energy Organization Act, Pub. L. 95-91, 91
Stat. 565 (42 U.S.C. 7101 et seq.); Powerplant and Industrial Fuel Use
Act of 1978, Pub. L. 95-620, 92 Stat. 3289 (42 U.S.C. 8301 et seq.);
E.O. 12009, 42 FR 46267.
Source: 44 FR 60692, Oct. 19, 1979, unless otherwise noted.
OMB Control No. : 1903-0075. See 46 FR 63209, Dec. 31, 1981.
10 CFR 504.9 Subpart A -- General Provisions
10 CFR 515.1 Policy.
(a) The Economic Regulatory Administration (ERA) intends to
administer the provisions of the Powerplant and Industrial Fuel Use Act
of 1978 (FUA or the Act) relating to transitional facilities in a firm
but fair and practical manner. A transitional facility is one which was
not operational on April 20, 1977, but for which a contract for its
construction or acquisition was signed prior to November 9, 1978, the
date of FUA's enactment. ERA will not classify as ''existing,''
transitional facilities which are in the early stages of planning and
construction, and which would not incur a substantial financial penalty,
an adverse effect upon electric system reliability (for powerplants), or
a significant operational detriment (for major fuel-burning
installations). These facilities will therefore be considered to be
''new.'' As new facilities, they will be subject to the statutory
prohibitions of Title II of FUA, but will have the opportunity to
petition ERA for an exemption from those prohibitions. Where a person
requesting classification of a transitional facility as ''existing'' can
demonstrate that the facility is in a more advanced stage of
construction and would sustain any of the penalties, adverse effects, or
detriments identified above, ERA will classify the facility as
''existing'' in order to avoid disruptive impacts on the facility as
well as on the economy at large.
(b) You are eligible to request that ERA classify your transitional
facility as ''existing'' if a contract for the facility's construction
or acquisition was signed prior to November 9, 1978. Moreover, you are
also eligible to request that ERA classify your transitional facility as
''existing'' if a contract was signed prior to November 9, 1978, for the
reconstruction of your facility (including refurbishment of or addition
to the facility) to the extent that the reconstruction equals or exceeds
50 percent of the price of a replacement unit. We base these criteria
for eligibility as a transitional facility on the principle that a
contract constitutes a commitment, after which time any cancellation,
rescheduling, or modification may result in a substantial financial
penalty, a significant operational detriment, or an adverse effect on
electric system reliability. If you are otherwise eligible to request
classification of a rental boiler under this part, your request must
also be filed on behalf of all other persons, if any, who have an
interest in (i.e., own, operate and/or control) the boiler at the time
the request is filed, unless ERA has, for good cause shown, waived this
requirement.
(c) We have established milestones whereby facilities will
automatically be considered ''new'' or ''existing'' without contacting
ERA. Where no contract for construction or acquisition of a facility
was signed prior to November 9, 1978, the facility is clearly ''new.''
Facilities which were operational, as defined in these regulations, on
or before April 20, 1977, are automatically deemed ''existing.''
Individual transitional facilities with a design capability of consuming
any fuel at a heat input rate which does not equal or exceed 100 million
BTU's per hour, are automatically deemed ''existing.''
(d) To further facilitate the processing of requests for
classification of transitional facilities and to reduce the
administrative burden on persons requesting classification and ERA
alike, facilities which were completed and title transferred,
operational or at a certain stage of construction by designated dates
will be classified as ''existing'' upon certification to ERA and, in
some cases, the submission of minimal documentation. Under this
approach, powerplants and MFBIs which were completed on or before April
20, 1977 and for which title was transferred to the purchaser on or
before April 20, 1977, will be classified as ''existing'' by ERA. In
addition, units which were operational on May 8, 1979 (the effective
date of FUA) will be classified as ''existing'' by ERA. Moreover, MFBIs
which are prefabricated boilers and powerplants which are prefabricated
boilers or combustion turbines which had been shipped by the
manufacturer, or which had their main steam drum in place (for
field-erected boilers) by November 9, 1978, will similarly be classified
as ''existing.''
(e) ERA believes that a powerplant or MFBI will incur a ''substantial
financial penalty'' where 25 percent or more of the total projected
project cost has been expended or irrevocably committed as of November
9, 1978. In assessing the expenditures or committed costs, however, ERA
will exclude outlays which can be used toward the construction of an
alternate fuel-fired facility or which may be cancelled. The limitation
to nonrecoverable outlays follows from the definitions of new
powerplants and MFBIs in Section 103 of the Act. These definitions
recognize the extra costs that are incurred in building an alternate
fuel-fired plant by cancelling, rescheduling or modifying a partially
completed oil or gas-fired plant.
(f) Where these nonrecoverable outlays do not reach 25 percent of the
total projected project cost, ERA may consider other financially-related
factors presented on a case-by-case basis. The purpose of these
additional case-by-case evaluations, where facilities have not expended
beyond 25 percent of their total projected project cost, in to permit
persons requesting classification to present ERA with full explanations
of the financial penalties they believe they may incur, but which are
otherwise not properly included in computing the 25 percent test.
(g) If your transitional facility is a powerplant, one of the
considerations ERA will employ in reaching a determination applicable to
an adverse effect on electric system reliability is whether the
cancellation, rescheduling or modification of your proposed powerplant
would result in your electric region's reserve margin falling below 20
percent during the 12-month period after you expect your proposed
powerplant to begin operation. You may present whatever evidence you
deem appropriate to ERA's reaching a determination on your claim of an
adverse effect on electric system reliability.
(h) If your transitional facility is a major fuel-burning
installation, your unit will be designated ''existing'' if you
demonstrate to ERA that you would incur a significant operational
detriment as a result of cancelling, rescheduling, or modifying your
facility. In light of the complexity and variety of operational
requirements in the MFBI sector, ERA will review these requests for
classification on a case-by-case basis.
(44 FR 60692, Oct. 19, 1979, as amended at 44 FR 69920, Dec. 5, 1979)
10 CFR 515.2 Purpose and scope.
(a) Purpose. These rules govern requests for classification of
transitional facilities by ERA as ''existing'' facilities subject to the
provisions of Title III of FUA, rather than as ''new'' facilities
subject to the provisions of Title II of FUA.
(b) Application. This part applies to all transitional facilities.
You are eligible to submit a request to have your transitional
powerplant or major fuel-burning installation classified as an
''existing'' facility, pursuant to this part, if a contract for the
construction or acquisition of your facility was signed prior to
November 9, 1978, the date of enactment of FUA.
(c) ERA determinations. Based upon the criteria set forth below, and
after thorough consideration of the entire administrative record of your
formal request, ERA will publish in the Federal Register a formal
decision either: (1) Granting the request, having determined that your
installation or powerplant is ''existing,'' or (2) denying the request,
having determined that your installation or powerplant is ''new.'' ERA
determinations on requests that are received by ERA on or before the
effective date of this final rule, will be made on the basis of the
provisions set forth in the revised interim rule or this final rule,
whichever would result in a more favorable disposition of your request.
Determinations on requests received after the effective date of this
final rule, will be made on the basis of this final rule. These
determinations are final Departmental actions.
10 CFR 515.2 Subpart B -- Electric Powerplants
10 CFR 515.3 Eligibility.
You are eligible to submit a request to ERA to have your transitional
facility classified as ''existing'' if you can demonstrate to the
satisfaction of ERA that a contract for the construction or acquisition
of the powerplant was signed prior to November 9, 1978.
10 CFR 515.4 Powerplants automatically classified as ''new.''
If a contract for the construction or acquisition of the powerplant
was not signed prior to November 9, 1978, the powerplant is
automatically classified as ''new'' and subject to the provisions of
Title II of the Act.
10 CFR 515.5 Powerplants automatically classified as ''existing.''
(a) Any powerplant which was operational on or before April 20, 1977,
is automatically classified as ''existing'' and subject to the
provisions of Title III of the Act.
(b) Any powerplant for which a contract for construction or
acquisition was signed prior to November 9, 1978, and which does not
have a design capability to consume any fuel at a fuel heat input of 100
million BTU's per hour or greater, is automatically classified as
''existing'' and subject to the provisions of Title III of the Act.
(c) Any powerplant for which a contract for construction or
acquisition was signed before November 9, 1978, and which was
operational on or before May 8, 1979, is automatically classified as
''existing'' and subject to the provisions of Title III of the Act upon
filing with ERA of a certification. This certification must be made by
a duly authorized officer of the electric utility which owns, operates
or controls the powerplant. This filing will not be deemed by ERA to be
a formal request for classification under this part.
(d) Any powerplant which was completed and for which ownership of the
unit was transferred from the manufacturer to a purchaser on or before
April 20, 1977 shall be automatically classified as ''existing'' and
subject to the provisions of Title III of the Act upon the submission of
the evidence required by 515.7(a)(3).
(e) Any powerplant for which a contract for construction or
acquisition was signed prior to November 9, 1978 and which is:
(1) A prefabricated packaged boiler or a combustion turbine that was
shipped by the manufacturer to the user by November 9, 1978 is
automatically classified as ''existing'' upon the submission of a
certification to such effect by a duly authorized officer of the
electric utility that owns, operates or controls your powerplant and the
evidence required by 515.7(a)(4).
(2) A field-erected unit, the main stream drum of which was in place
by November 9, 1978, is automatically classified as existing upon the
submission of a certification to such effect by a duly authorized
officer of the electric utility that owns, operates or controls your
powerplant and the evidence required by 515.7(a)(5).
10 CFR 515.6 Powerplants which ERA will classify as ''existing.''
ERA will classify an eligible powerplant as ''existing'' if you
demonstrate to the satisfaction of ERA that the cancellation,
rescheduling or modification of the construction or acquisition of your
powerplant would result in a substantial financial penalty or an adverse
effect on the electric system reliability.
(a) Substantial financial penalty. (1) ERA will take into
consideration any financially-related factor which you consider
appropriate in reaching a determination on substantial financial
penalty. If you demonstrate to the satisfaction of ERA that, as of
November 9, 1978, you have expended at least 25 percent of the total
projected project cost, ERA will classify your facility as ''existing.''
In computing the 25 percent expenditure, you must include only
nonrecoverable outlays expended as of November 9, 1978.
Example: You are constructing a facility which can use either
petroleum or coal, and the following outlays have been made and are
projected:
In general, ERA would define a maximum of $1,000,000 as a
non-recoverable outlay (oil handling equipment, oil storage) and could
probably reduce this amount since certain items would be retained in an
alternate fuel-firing system which used oil for startup and ignition.
Outlays for the boiler are deemed recoverable, since they could be used
in a coal facility, even though you would be required to spend an
additional amount for pollution control and coal handling and storage
facilities. (You may indicate your assessment of the impact of this
additional amount by addressing paragraph (a)(2)(iii) of this section in
your request.)
(2) If you have expended at least 25 percent of the total projected
project cost, ERA will classify your facility as ''existing.'' If you
have expended less than 25 percent under the test set forth above, you
may still request classification from ERA. Your request for
classification may address, among others, the following factors:
(i) The nonrecoverable outlays you would incur by cancelling,
rescheduling, or modifying your current proposed powerplant in order to
burn an alternate fuel or fuel mixture;
(ii) The total projected project cost and percentage of completion of
the project at November 9, 1978;
(iii) The impact that cancelling, rescheduling, or modifying your
present powerplant would have upon your rate base and your ability to
continue in business as a sound and financially viable public utility;
(iv) The site at which the facility is located; and
(v) An alternate use for the facility under construction.
(b) Adversely affecting electric system reliability. (1) ERA will
make its determination applicable to electric system reliability on a
case-by-case basis, after consultation with FERC and the appropriate
state authority.
(2) One of the considerations ERA will employ is whether the reserve
margin of the electric region in which you propose to locate your
powerplant would be reduced to less than 20 percent during the 12-month
period after you expect your proposed powerplant to begin operation,
assuming your proposed powerplant is not completed. Firm purchases and
sales to or from the electric region will be included in ERA's
evaluation. The reserve margin percentage is computed by subtracting
the normal peak load expected during the 12-month period from the
system's total capacity, including the additional capacity that will be
available through interconnection, and dividing the result by the
projected normal peak load during the delay.
(3) Notwithstanding paragraph (b)(2) of this section, if you wish to
demonstrate that your own electric utility's ability to provide reliable
service will be adversely affected during this period, regardless of
circumstances pertaining to your electric region, you may present
whatever evidence you deem appropriate.
10 CFR 515.7 Evidence required in support of a request for
classification.
(a)(1) You must submit a separate request for classification for each
facility at a single site. Each request must be in writing, and must be
signed by the duly authorized officer of the company that owns, operates
or controls the powerplant. Your request must include:
(i) A complete description of the transitional facility;
(ii) A statement of the date on which the contract for the
construction or acquisition of the powerplant was signed and a
description of the components or services contracted for; and
(iii) A statement of the date on which your powerplant became or is
scheduled to become operational.
(2) ERA may request that you submit copies of any contracts concerned
with the construction or acquisition of the powerplant.
(3) If your request is made pursuant to 515.5(d), to document that
the unit was completed prior to April 20, 1977, you must submit a
certification from a duly authorized officer of the manufacturer to that
effect. To document that ownership was transferred prior to April 20,
1977, you must submit evidence which clearly demonstrates the transfer
of ownership.
(4) If your request is made pursuant to 515.5(e)(1), to document
that the unit was shipped by November 9, 1978, you must submit a
statement of the date it was shipped by the manufacturer and either a
copy of the bill of lading from the shipment of the prefabricated boiler
or combustion turbine or a dated photograph of the prefabricated boiler
or combustion turbine after it has been set in place.
(5) If your request is made pursuant to 515.5(e)(2), to document
that the main steam drum was in place by November 9, 1978, you must
submit a statement of the date it was in place and either a copy of the
bill of lading for the shipment of the main steam drum or a dated
photograph of the main steam drum after it has been set in place.
(b)(1) If you wish to show that you will incur a substantial
financial penalty, your request for classification must include the
information listed below:
(i) A statement of the total projected project cost of your
transitional facility projected as of November 9, 1978;
(ii) An itemized list of the project expenditures as of November 9,
1978;
(iii) An itemized list of any financial penalties you will incur by
cancelling or terminating contracts signed as of November 9, 1978, for
the project;
(iv) An itemized list of your recoverable expenditures for the
project;
(v) An itemized list of the nonrecoverable outlays for the project;
and/or
(vi) Any other relevant information you feel ERA should consider in
reaching its determination, including information relating to the
factors listed in 515.6(a), above.
(2) You should provide sufficient detail to enable ERA to evaluate
your claim of substantial financial penalty. When providing itemized
lists, you may aggregate costs of minor items in a reasonable manner,
but ERA may require you to specify these costs if the cost categories
are too vague or the costs are substantial.
(3) ERA may request that you submit copies of the sections of the
engineering design plan and copies of environmental analyses or their
summaries which describe in detail the design specifications, the
construction schedule and the estimated engineering and contingency
costs of the transitional facility.
(c)(1) If you wish to show an adverse effect on electric system
reliability, your request for classification must include:
(i) A description of your own service area and its interconnection
with other utilities;
(ii) Projections of peakload for your service area during the period
of the delay that would be caused by the cancellation or redesign of the
transitional facility;
(iii) The net dependable electrical capacity and peak loads for this
service area for the 12 months following the expected operational date
of the facility, including interconnections (if you are claiming an
adverse impact on reliability during a period after the 12 months, you
must provide this data for the period commensurate with the time of your
anticipated reliability difficulties);
(iv) Your service area's reserve margin during the 1-year period
after you expect your proposed powerplant to begin operation; and
(v) Any other relevant information you feel ERA should consider in
reaching its determination.
(2) You should provide sufficient detail to enable ERA to evaluate
your claim of an adverse effect on electric system reliability.
(3) ERA will conduct the required regional reliability analysis for
your electric region. You are invited to assist ERA by providing the
additional projected regional load and generation data needed to
evaluate the reliability of your electric region. ERA will utilize its
own generation and load projection data base if you do not provide the
necessary data.
10 CFR 515.7 Subpart C -- Major Fuel-Burning Installations
10 CFR 515.10 Eligibility.
You are eligible to submit a request to ERA to have your transitional
facility classified as ''existing'' if you can demonstrate to the
satisfaction of ERA that a contract for the construction or acquisition
of the installation was signed prior to November 9, 1978.
10 CFR 515.11 Installations automatically considered to be ''new.''
If a contract for the construction or acquisition of the installation
was not signed prior to November 9, 1978, the installation is
automatically considered to be ''new'' and subject to the provisions of
title II of the Act.
(44 FR 69920, Dec. 5, 1979)
10 CFR 515.12 Installations automatically considered to be
''existing.''
(a) Any installation which was operational on or before April 20,
1977, is automatically classified as ''existing'' and subject to the
provisions of title III of the Act.
(b) Any installation for which a contract for construction or
acquisition was signed prior to November 9, 1978, and which does not
have a design capability to consume any fuel at a fuel heat input rate
of 100 million BTU's per hour or greater, is automatically classified as
''existing'' and subject to the provisions of title III of the Act.
(c) Any installation for which a contract for construction or
acquisition was signed prior to November 9, 1978, and which was
operational on or before May 8, 1979, is automatically classified as
''existing'' and subject to the provisions of title III of the Act upon
filing with ERA of a certification. This certification must be made by
a duly authorized officer of the installation. This filing will not be
deemed by ERA to be a formal request for classification under this part.
(d) Any installation which was completed and for which ownership was
transferred from the manufacturer to a purchaser prior to April 20,
1977, shall be automatically classified as ''existing'' and subject to
the provisions of title III of the Act upon the submission of the
evidence required by 515.15(a)(3).
(e) Any installation for which a contract for construction or
acquisition was signed prior to November 9, 1978 and which is:
(1) A prefabricated packaged boiler that was shipped by the
manufacturer to the user by November 9, 1978, is automatically
classified as ''existing'' upon the submission of a certification to
such effect by a duly authorized officer of the company that owns,
operates or controls your installation and the evidence required by
515.15(a)(4).
(2) A field-erected unit, the main steam drum of which was in place
by November 9, 1978, is automatically classified as existing upon the
submission of a certification to such effect by a duly authorized
officer of the company that owns, operates or controls your installation
and the evidence required by 515.15(a)(5).
(44 FR 60692, Oct. 19, 1979. Redesignated and amended at 44 FR 69920,
Dec. 5, 1979)
10 CFR 515.13 Installations which ERA will classify as ''existing.''
ERA will classify an eligible installation as ''existing'' if you
demonstrate to the satisfaction of ERA that the cancellation,
rescheduling, or modification of the construction or acquisition of your
installation would result in a substantial financial penalty or a
significant operational detriment.
(a) Substantial financial penalty. (1) ERA will take into
consideration any financially-related factor which you consider
appropriate in reaching its determination on substantial financial
penalty. If you demonstrate to the satisfaction of ERA that you have
expended at least 25 percent of the total projected project cost as of
November 9, 1978, ERA will classify your installation as ''existing.''
In computing the 25 percent expenditures, you must include only
nonrecoverable outlays expended as of November 9, 1978.
Example: You are constructing a facility which can use either
petroleum or coal, and the following outlays have been made and are
projected:
In general, ERA would define a maximum of $1,000,000 as a
nonrecoverable outlay (oil handling equipment & oil storage) and would
probably reduce this amount since certain items would be retained in an
alternate fuel-firing system which used oil for startup and ignition.
Outlays for the boiler are deemed recoverable, since they could be used
in a coal fired facility, even though you would be required to spend an
additional amount for pollution control and coal handling and storage
facilities. (You may indicate your assessment of the impact of this
additional amount by addressing paragraph (a)(2)(iii) of this section in
your request.)
(2) If you have expended at least 25 percent of the total projected
project cost, ERA will classify your facility as ''existing.'' If you
have expended less than 25 percent under the test set forth above, you
may still request classification from ERA. Your request for
classification may address, among others, the following factors:
(i) The nonrecoverable outlays you would incur by cancelling,
rescheduling or modifying your current proposed installation in order to
burn an alternate fuel or fuel mixture;
(ii) The total projected project cost and percentage of completion of
the project at November 9, 1978; and
(iii) The impact that cancelling, rescheduling, or modifying your
proposed installation would have upon your ability to continue in
business as a sound and financially viable entity. (In the case of a
subsidiary company, ERA intends to review the financial effect on the
parent company unless you can demonstrate to ERA why this would not be
justified).
(b) Significant operational detriment. ERA will make its
determination under this subsection on a case-by-case basis; however,
you should indicate the operational detriment you would have incurred if
you had cancelled, rescheduled, or modified your installation to burn an
alternate fuel or fuel mixture at November 9, 1978. Your request for
classification should address the following factors:
(1) The extent of construction and anticipated start-up date;
(2) The potential impact of the loss of production which could not be
rescheduled elsewhere;
(3) The potential impact on employment, including the number and type
of jobs lost, excluding those that may be absorbed elsewhere within your
parent company; and
(4) The anticipated annual capacity utilization factor of the unit,
as well as seasonal or other variations in use.
10 CFR 515.15 Evidence required in support of a request for
classification.
(a)(1) You must submit a separate request for classification for each
facility at a single site. Each request must be in writing and must be
signed by the duly authorized officer of the company that owns, operates
or controls the installation. Your request for classification must
include:
(i) A complete description of the transitional facility;
(ii) A statement of the date on which a contract for the construction
or acquisition of the installation was signed, and a description of the
components or services contracted for; and
(iii) A statement of the date on which your installation became or is
scheduled to become operational.
(2) ERA may request that you submit copies of any contracts concerned
with the construction or acquisition of the installation.
(3) If your request is made pursuant to 515.12(d), to document that
the unit was completed prior to April 20, 1977, you must submit a
certification from a duly authorized officer of the manufacturer to that
effect. To document that ownership was transferred prior to April 20,
1977, you must submit evidence which clearly demonstrates the transfer
of ownership.
(4) If your request is made pursuant to 515.12(e)(1), to document
that the unit was shipped by November 9, 1978, you must submit a
statement of the date it was shipped by the manufacturer and either a
copy of the bill of lading for the shipment of the prefabricated boiler
or a dated photograph of the prefabricated boiler after it has been set
in place.
(5) If your request is made pursuant to 515.12(e)(2), to document
that the main steam drum was in place by November 9, 1978, you must
submit a statement of the date it was in place and either a copy of the
bill of lading for the shipment of the main steam drum or a dated
photograph of the main steam drum after it has been set in place.
(b)(1) If you wish to show that you will incur a substantial
financial penalty, your request for classification must include:
(i) A statement of the total projected project cost of your
transitional facility projected as of November 9, 1978;
(ii) An itemized list of the project expenditures as of November 9,
1978;
(iii) An itemized list of any financial penalties you will incur by
cancelling or terminating contracts for the project signed as of
November 9, 1978;
(iv) An itemized list of your recoverable expenditures for the
project;
(v) An itemized list of the nonrecoverable outlays for the project;
and/or
(vi) Any other relevant information you feel ERA should consider in
reaching its determination, including information relating to the
factors listed in 515.13(a), of this part.
(2) You should provide sufficient detail to enable ERA to evaluate
your claim of substantial financial penalty. When providing itemized
lists, you may aggregate costs of minor items in a reasonable manner,
but ERA may require you to specify these costs if the cost categories
are too vague or the costs are substantial.
(3) ERA may request that you submit copies of the sections of the
engineering design plan and copies of environmental analyses or their
summaries which describe in detail the design specifications, the
construction schedule and the estimated engineering and contingency
costs of the transitional facility.
(c) If you wish to show that you will incur a significant operation
detriment, your request for classification should include any relevant
information you feel ERA should consider in reaching its determination,
including information relating to the factors listed in 515.13(b) of
this part. You should provide sufficient detail to enable ERA to
evaluate your claim of significant operational detriment.
(d) ERA may request any additional evidence it deems necessary to
adequately review your request for classification.
10 CFR 515.15 Subpart D -- Definitions
10 CFR 515.20 Definitions.
(a) All terms defined in this subpart shall apply only to part 515,
Transitional Facilities. These definitions are not applicable to and
may differ from the definitions promulgated or to be promulgated under
other regulations implementing FUA.
(b) Throughout this part, the Act or FUA means the Powerplant and
Industrial Fuel Use Act of 1978.
(c) Unless otherwise expressly provided; for purposes of this part
of these regulations, the term:
(1) Alternate fuel means electricity or any fuel, other than natural
gas or petroleum. The term includes:
(i) Coal;
(ii) Solar energy;
(iii) Petroleum coke, shale oil, uranium, biomass, and municipal,
industrial, or agricultural wastes, wood and renewable and geothermal
energy sources;
(iv) Liquid, solid, or gaseous waste byproducts of refinery or
industrial operations which are commercially unmarketable, either by
reason of quality or quantity;
(v) Any fuel derived from an alternate fuel; and
(vi) Waste gases from industrial operations.
(2) Btu means British thermal unit.
(3) Coal means anthracite, bituminous and sub-bituminous coal,
lignite, and any fuel derivative thereof.
(4) Conference means an informal meeting, incident to any proceeding,
between ERA and any interested person.
(5) Construction means substantial construction in terms of an actual
and meaningful commitment to building the powerplant or MFBI, and
includes more than merely clearing a site or putting in foundation
pilings for the unit.
(6) Contract for construction or acquisition means a legally-binding
agreement or agreements for substantial onsite construction or
reconstruction, or for the purchase or rental of significant equipment
or appurtenances required for the construction or operation of a
powerplant or MFBI, including, but not necessarily limited to, the
boiler and its major components, fuel-handling equipment and pollution
control equipment. This term shall not include contracts for the
purchase of land, site clearance or preparation, or the installation of
foundation pilings.
(7) Duly authorized officer means the Chief Executive Officer or his
designee of a company that owns, operates or controls a facility.
(8) Duly authorized representative means a person who has been
designated to appear before ERA in connection with a proceeding on
behalf of a person interested in or aggrieved by that proceeding. The
appearance may consist of the submission of applications, requests,
statements, memoranda of law, other documents, or of a personal
appearance, oral communication, or any other participation in the
proceeding.
(9) Electric powerplant means any stationary electric generating
unit, consisting of a boiler, a combustion turbine unit, a generator or
a combined cycle unit, which produces electric power for purposes of
sale or exchange, and:
(i) Has the design capability of consuming any fuel (or mixture
thereof) at a fuel heat input rate of 100 million Btu's per hour or
greater.
(ii) As used herein, the term electric generating unit does not
include --
(A) Any electric generating unit subject to the licensing
jurisdiction of the Nuclear Regulatory Commission; and
(B) Any cogeneration facility, less than half of the annual electric
power generation of which is sold or exchanged for resale.
(10) Electric region -- The following is a list of electric regions
for use with regard to this part. The regions are identified by FERC
Power Supply areas as authorized by section 202(a) of the Federal Power
Act except where noted.
(i) Each grouping meets one or more of the following criteria:
(A) Existing centrally-dispatched pools and hourly power brokers;
(B) Systems with joint planning and construction agreements;
(C) Systems with coordination agreements in the areas of:
(1) Generation reserve and system reliability criteria;
(2) Capacity and energy exchange policies;
(3) Maintenance scheduling;
(4) Emergency procedures for dealing with Capacity or fuel shortages;
(D) Systems within the same National Electric Council (NERC) region
with historical coordination policies.
(ii) The Power Supply Areas (PSA's), referred to in the definition of
electric regions, were first defined by the Federal Power Commission in
1936. The most recent reference to them is given in the 1970 National
Power Survey, Vol. I, Pg. I-3-16. In cases where you find an ambiguity
in a regional assignment, you shall consult with ERA for an official
determination.
(iii) Electric region groupings.
(11) Electric utility means any person, including any affiliate, or
Federal agency, who sells electric power.
(12) ERA means the Economic Regulatory Administration of the
Department of Energy.
(13) Facility means an electric powerplant or major fuel-burning
installation.
(14) FERC means the Federal Energy Regulatory Commission.
(15) Installation means ''major fuel-burning installation.''
(16) Fuel heat input rate means the hourly fuel feed rate multiplied
by the gross heating value of the fuel at 60 degrees F. The rate,
expressed in millions of BTU's per hour, measures the maximum capacity
of the unit and is not related to the rate of actual use. The fuel
input rate also reflects the highest rate which can be attained in the
unit among the various rates associated with the different fuel
capabilities of the unit.
(17) Main steam drum means the drum in the boiler where the process
of steam separation occurs.
(18) Main steam drum in place means that the main steam drum has been
lifted to and hung on the field-erected boiler, so that the main steam
drum is blocked or braced in place.
(19) Major fuel-burning installation, means a stationary unit
consisting of a boiler, which:
(i) Has a design capability of consuming any fuel, or mixture
thereof, at a fuel heat input rate of 100 million BTU's per hour or
greater.
(ii) Major fuel-burning installation does not include:
(A) Any electric powerplant; or
(B) Any pump or compressor used solely in connection with the
production, gathering, transmission, storage, or distribution of gases
or liquids, but only if there is certification to ERA of such use.
(C) Steam generators for crude oil recovery.
(20) MFBI means ''major fuel burning installation.''
(21) Mixture when used in relation to fuels used in a unit, means a
mixture of petroleum or natural gas and an alternate fuel, or a
combination of such fuels used simultaneously or alternately in such
unit.
(22) Nonrecoverable outlays are those expenditures you have made for
your transitional facility, as of November 9, 1978, which could not be
used in the construction or operation of a facility to burn an alternate
fuel, including any expenditures you would be required to make as a
result of cancelling contracts signed prior to November 9, 1978. In
determining nonrecoverable outlays, you must select the method which
results in the least amount of nonrecoverable outlays. The following
items are to be excluded from nonrecoverable outlays:
(i) Reimbursements from selling or salvaging equipment or
appurtenances associated with the petroleum/gas boiler system; and
(ii) Expenditures for equipment or appurtenances which can be used
elsewhere by the owner or operator of the powerplant or installation.
(23) Operational means that a unit is used and useful, has completed
its testing phase and is capable of producing a product or providing a
service on a continuing basis.
(24) Person means:
(i) Any individual corporation, company, partnership, association,
firm, institution, society, trust, joint venture, or joint stock
company;
(ii) Any State, the District of Columbia, Puerto Rico, and any
territory or possession of the United States;
(iii) Any agency or instrumentality (including any municipality)
thereof; or
(iv) A parent and the consolidated and unconsolidated entities (if
any) which it directly or indirectly controls.
(25) Powerplant means ''electric powerplant.''
(26) Reconstruction occurs when:
(i) For electric powerplants, your capital expenditure as defined by
FERC on a cumulative basis for the current calendar year and preceding 2
calendar years equals or exceeds 50 percent of the expenditure for an
equivalent replacement unit. Reconstruction shall not include
expenditures for routine operation and maintenance. Reconstruction
shall include expenditures for items capitalized (i.e., not expensed)
according to the FERC Uniform System of Accounts.
(ii) For MFBI's, your capital expenditure on a cumulative basis for
the current calendar year and preceding 2 calendar years equals or
exceeds 50 percent of the expenditure for an equivalent replacement
unit. Reconstruction shall not include expenditures for routine
operation and maintenance. Reconstruction shall include expenditures
for items capitalized (i.e., not expensed) according to IRS standards.
(27) Recoverable outlays are those expenditures you have made for
your transitional facility, as of November 9, 1978, which could be used
in the construction or operation of a facility to burn an alternate
fuel. The following items are to be included as recoverable outlays:
(i) Reimbursements from selling or salvaging equipment or
appurtenances associated with the petroleum/gas boiler system; and
(ii) Expenditures for equipment or appurtenances which can be used
elsewhere by the owner or operator or the powerplant or installation.
(28) Request for classification means the formal request for
classification of a facility as ''existing'' made to ERA through
submission of appropriate forms and other information pertaining to
eligibility and evidentiary requirements as stated in these regulations
under this part.
(29) Total projected project cost means total expenditures, projected
as of November 9, 1978, required to perform the feasibility study,
engineering, and labor for the construction of your planned facility, as
well as all expenditures required for the purchase of the boiler and/or
nonboiler and all of its components, fuel-handling equipment, pollution
control equipment, and other appurtenances necessary for the
construction and operation of the facility. In calculating the total
projected project cost, expenditures for marketing studies and land
acquisition must be excluded.
(30) Transitional facility means a facility which was not operational
on April 20, 1977, but for which a contract for the construction or
acquisition was signed prior to November 9, 1978.
(31) Turbine generator or combustion turbine generator means an
electric power-generating unit that is a combination of a rotary engine
driven by a gas under pressure that is created by the combustion of any
fuel, with an electric power generator driven by the engine.
(44 FR 60692, Oct. 19, 1979, as amended at 44 FR 69920, Dec. 5, 1979)
10 CFR 515.20 Subpart E -- Administrative Provisions
10 CFR 515.25 Purpose and scope.
This subpart establishes the general procedures that are applicable
to this part.
10 CFR 515.26 Notice and public comment.
When ERA receives your properly filed request for classification
under this part, it will publish a notice in the Federal Register. ERA
will provide in the notice a period of no less than 21 days for
interested persons to file written data, views or arguments. ERA will
not provide an opportunity for a public hearing.
10 CFR 515.27 Conferences.
(a) You may file a written request for a conference with ERA
regarding your request for classification. The request must be filed at
the address provided in 515.35. ERA in its discretion will decide
whether to hold a conference.
(b) Actual notice of the time, place, and nature of the conference
will be provided to the person who requested the conference. ERA will
determine who may attend a conference, but a conference will generally
include only the representative of the person requesting the conference,
government representatives, and other persons requested by the person
requesting the conference.
(c) When ERA convenes a conference in accordance with this section,
any person invited may present views as to the issue or issues involved.
You may submit documentary evidence at the conference. ERA will not
normally have a transcript of the conference prepared but may do so at
its discretion. However, a summary of major points discussed will be
prepared by ERA and placed in the public record with confidential
material deleted.
(d) Because a conference is solely for the exchange of views incident
to a request for classification, ERA will not prepare a transcript,
issue a final report or finding unless ERA in its discretion determines
that it would be advisable.
10 CFR 515.28 Appearance before ERA.
(a) A person may participate in any proceeding described in this part
on his own behalf or by a duly authorized representative. Any request
for classification filed by a duly authorized representative must
contain a statement by such person certifying that he is a duly
authorized representative. Falsification of the certification will
subject the person to the sanctions stated in 18 U.S.C. 1001.
(b) ERA may deny, temporarily or permanently, the privilege of
participating in conferences, including oral presentations, to any
individual who is found by ERA:
(1) To have made false or misleading statements, either orally or in
writing;
(2) To have filed false or materially altered documents, affidavits
or writings;
(3) To lack the specific authority to represent the person seeking an
ERA action; or
(4) To have disrupted or to be disrupting a proceeding.
10 CFR 515.29 Computation of time.
(a) Days. (1) When ERA computes time in days under these
regulations, ERA will not include the day of the act (or default) from
which a period of time begins to run. ERA will include the last day of
the period, unless it is a Saturday, Sunday or Federal legal holiday, in
which case the period runs until the end of the next normal working day
that is not a Federal legal holiday.
(2) ERA shall exclude Saturdays, Sundays or intervening Federal legal
holidays from its computation of time when the period of time allowed or
prescribed in the regulations is 7 days or less.
(b) Additional time after service by mail. Whenever ERA serves by
mail decision, notice, interpretation or other document, which may
specify a time period for you to perform an act, refrain from performing
an act, or commence a proceeding, you may add 3 days to the period
prescribed.
10 CFR 515.30 Service.
(a) ERA will serve all decisions personally or by certified mail
unless otherwise provided in these regulations. All other documents
will be sent by ERA by first class mail.
(b) ERA will consider service upon your duly authorized
representative to be service upon you.
(c) Service by mail is effective upon mailing. ERA will consider
official United States postal receipts from certified mailing as prima
facie evidence of service.
10 CFR 515.31 General filing requirements.
(a) Where to submit. You must file your request for classification
with ERA at the address provided in 515.35.
(b) When to submit. Submit your request for classification under the
provisions of this part within 30 days after the effective date of this
final rule.
(c) Number of copies. You should submit four copies of your request
for classification.
(d) Completed filing. (1) Your request for classification is
considered to be filed when you have submitted four copies of your
request and any required supporting documentation, and it has been
accepted by ERA. If for any reason your request for classification is
not acceptable, ERA will notify you within 42 days (6 weeks) from the
date of receipt of any deficiencies or defects contained in your
request.
(2) If ERA requests other documents or additional information from
you, these will be considered to be filed upon receipt unless ERA
advises you to the contrary within a reasonable time.
(e) Signing and attestation. (1) If you file a request for
classification under this part on behalf of a company or corporation, a
duly authorized official of that company or corporation must attest in
writing as to the accuracy of all of the facts and statements contained
in that request.
(2) If you file a request for classification under this part on
behalf of a subsidiary of a company or corporation, a duly authorized
official of both the controlling or parent company or corporation and
its subordinate or subsidiary company or corporation must attest in
writing as to the accuracy of all facts and statements contained in that
request.
(3) If you file a request for classification under this part on
behalf of an entity other than a company or corporation, a duly
authorized official of that entity must attest in writing as to the
accuracy of all of the facts and statements contained in that request.
(4) All requests, comments, attestations or other documents filed
under this part by a duly authorized representative, as defined by
515.20(c)(8), must contain the written attestation by that person that
he is a duly authorized representative and state the basis for his
authority.
(f) Labeling. You should clearly label any request for
classification or other document that you file with ERA, as ''Request
for Classification as an Existing Facility'' both on the document and on
the outside of the envelope in which the document is transmitted.
(g) Obligation to supply information when you file a request for
classification, and other documents relevant thereto. You are under a
continuing obligation during the proceeding to provide the ERA with any
new or newly discovered information concerning significantly changed
circumstances relevant to the facility.
(h) Request for confidential treatment. (1)(i) If you wish to file a
document with ERA claiming that some or all of 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 as
amended) or is otherwise exempt by law from public disclosure, and if
you wish to request ERA not to disclose such information, you must
comply with the Department of Energy's Freedom of Information
regulations set forth in 10 CFR Part 1004 (44 FR 1908, Jan. 8, 1979).
(2) ERA retains the right to make its own determination with regard
to any claim of confidentiality. Notice of the decision by ERA to deny
such claim, in whole or in part, and an opportunity to respond will be
given to the person claiming confidentiality of information no less than
7 days prior to the public disclosure of such information.
(3) This subsection does not apply where information is being
submitted on an ERA form which contains its own instructions as to
requests for confidential treatment of information provided.
(4) Each request for ERA action must be submitted as a separate
document, even if the request deals with the same or a related issue,
act or transaction, or is submitted in connection with the same
proceeding.
10 CFR 515.32 Extension of time.
ERA may, in its discretion, provide an extension of time to file a
request for classification if you can show good cause for the extension.
You should submit your request for an extension within 30 days after
the effective date of this rule.
10 CFR 515.33 Effective date of decision.
Any decision issued by ERA under this part is effective on the date
issued against all persons having actual notice of it. Such decision is
deemed to be issued on the date it is signed by an authorized
representative of ERA, unless the decision or other determination states
otherwise.
10 CFR 515.34 Order of precedence.
If there is any conflict or inconsistency between the provisions of
this subpart and any other provision of this part, the provisions of
this subpart shall contol as it relates to classifications of
Transitional Facilities. ERA determinations on requests for
classification that are received by ERA on or before the effective date
of this final rule shall be made on the basis of the revised interim
rule, or upon this final rule where the application of the final rule
would result in a more favorable disposition of your request. For
requests made after the effective date of this rule ERA shall apply the
provisions of this final rule.
10 CFR 515.35 Addresses for filing documents with the ERA.
All requests, reports, ERA forms, written communications or other
documents are to be filed with the Assistant Administrator for Fuels
Conversion, Economic Regulatory Administration, Attention: Office of
Public Hearing Management, 2000 M Street, N.W., Washington, D.C., 20461.
10 CFR 515.36 Office of Public Information.
The Office of Public Information (2000 M Street, N.W., Washington,
D.C., Room B-110) is available for public inspection of documents and
copying of the following information:
(a) A list of all persons who have filed a request for classification
for designation as existing facilities.
(b) Each decision on a request for classification which will contain
a statement setting forth the relevent facts and legal basis of each
decision, with confidential information deleted, as well as written
comments received from interested persons in connection with a request.
10 CFR 515.36 PART 516 -- (RESERVED)
10 CFR 515.36 Pt. 580
10 CFR 515.36 SUBCHAPTER G -- NATURAL GAS (ECONOMIC REGULATORY ADMINISTRATION)
10 CFR 515.36 PART 580 -- CURTAILMENT PRIORITIES FOR ESSENTIAL
AGRICULTURAL USES
Sec.
580.01 Purpose.
580.02 Definitions.
580.03 Curtailment priorities.
580.04 Administrative procedures. (Reserved)
Authority: Secs. 401, 403, Pub. L. 95-621, 92 Stat. 3394-3395,
3396; secs. 301(b), 402(a), Pub. L. 95-91, 91 Stat. 578, 594, (42
U.S.C. 7115(b), 7117(a)); E.O. 12009, 42 FR 46267.
Source: 44 FR 15646, Mar. 15, 1979, unless otherwise noted.
10 CFR 580.01 Purpose.
The purpose of this part is to implement the authority granted to the
Secretary of Energy in section 401 of the Natural Gas Policy Act of
1978, Pub. L. 95-621, 92 Stat. 3394-3395 (1978).
10 CFR 580.02 Definitions.
(a) Terms defined in section 2 of the Natural Gas Policy Act of 1978
shall have the same meaning, as applicable, for purposes of this part,
unless further defined in paragraph (b) of this section.
(b) The following definitions are applicable to this part:
(1) Commercial establishment -- means any establishment, (including
institutions and local, state and federal government agencies) engaged
primarily in the sale of goods or services, where natural gas is used
for purposes other than those involving manufacturing or electric power
generation.
(2) Essential agricultural use -- means any use of natural gas:
(i) For agricultural production, natural fiber production, natural
fiber processing, food processing, food quality maintenance, irrigation
pumping, crop drying; or
(ii) As a process fuel or feedstock in the production of fertilizer,
agricultural chemicals, animal feed, or food which the Secretary of
Agriculture determines is necessary for full food and fiber production.
(3) Essential agricultural user -- means any person who uses natural
gas for an essential agricultural use as defined in paragraph (b)(2) of
this section.
(4) Hospital -- means a facility whose primary function is delivering
medical care to patients who remain at the facility, including nursing
and convalescent homes. Outpatient clinics or doctors' offices are not
included in this definition.
(5) High-priority use -- means any use of natural gas by a
high-priority user as defined in paragraph (a)(6) of this section.
(6) High-priority user -- means, in no specific order, any person who
uses natural gas:
(i) In a residence, or
(ii) In a commercial establishment in amounts of less than 50 Mcf on
a peak day; or
(iii) In any school or hospital; or
(iv) For minimum plant protection when operations are shut down, for
police protection, for fire protection, in a sanitation facility, in a
correctional facility, or for emergency situations pursuant to 18 CFR
2.78(a)(4).
(7) Interstate pipeline -- means any person engaged in natural gas
transportation subject to the jurisdiction of the Federal Energy
Regulatory Commission under the Natural Gas Act.
(8) Residence -- means a dwelling using natural gas predominately for
residential purposes such as space heating, air conditioning, hot water
heating, cooking, clothes drying, and other residential uses, and
includes apartment buildings and other multi-unit residential buildings.
(9) School -- means a facility, the primary function of which is to
deliver instruction to regularly enrolled students in attendance at such
facility. Facilities used for both educational and non-educational
activities are not included under this definition unless the latter are
merely incidental to the delivery of instruction.
10 CFR 580.03 Curtailment priorities.
(a) Notwithstanding any provision of law other than section 401(b) of
the Natural Gas Policy Act of 1978, or any other rule, regulation, or
order of the Department of Energy, the Federal Energy Regulatory
Commission or their predecessor agencies, and to the maximum extent
practicable, no curtailment plan of an interstate pipeline may provide
for curtailment of deliveries of natural gas for any essential
agricultural use, unless:
(1) Such curtailment does not reduce the quantity of natural gas
delivered for such use below the use requirement certified by the
Secretary of Agriculture under section 401(c) of the Natural Gas Policy
Act of 1978 in order to meet the requirements of full food and fiber
production; or
(2) Such curtailment is necessary in order to meet the requirements
of high-priority users; or
(3) The Federal Energy Regulatory Commission, in consultation with
the Secretary of Agriculture, determines, by rule or order issued
pursuant to section 401(b) of the Natural Gas Policy Act of 1978, that
use of a fuel (other than natural gas) is economically practicable and
that the fuel is reasonably available as an alternative for such
essential agricultural use.
(b) Any essential agricultural user who also qualifies as a
high-priority user shall be a high-priority user for purposes of
paragraph (a) of this section.
(c) The specific relative order of priority for all uses and users of
natural gas, including high-priority and essential agricultural uses and
users, shall remain as reflected in effective curtailment plans of
interstate pipelines filed with the Federal Energy Regulatory Commission
to the extent that the relative order of priorities does not conflict
with paragraph (a) of this section.
(d) Nothing in this rule shall prohibit the injection of natural gas
into storage by interstate pipelines or deliveries to its customers for
their injection into storage unless it is demonstrated to the Federal
Energy Regulatory Commission that these injections or deliveries are not
reasonably necessary to meet the requirements of high-priority users or
essential agricultural uses.
580.04 Administrative procedures. (Reserved)
10 CFR 580.03 Pt. 590
10 CFR 580.03 PART 590 -- ADMINISTRATIVE PROCEDURES WITH RESPECT TO THE IMPORT AND EXPORT OF NATURAL GAS
10 CFR 580.03 Subpart A -- General Provisions
Sec.
590.100 OMB Control Numbers.
590.101 Purpose and scope.
590.102 Definitions.
590.103 General requirements for filing documents with FE.
590.104 Address for filing documents.
590.105 Computation of time.
590.106 Dockets.
590.107 Service.
590.108 Off-the-record communications.
590.109 FE investigations.
10 CFR 580.03 Subpart B -- Applications for Authorization to Import or
Export Natural Gas
590.201 General.
590.202 Contents of applications.
590.203 Deficient applications.
590.204 Amendment or withdrawal of applications.
590.205 Notice of applications.
590.206 Notice of procedures.
590.207 Filing fees.
590.208 Small volume exports.
590.209 Exchanges by displacement
10 CFR 580.03 Subpart C -- Procedures
590.301 General
590.302 Motions and answers.
590.303 Interventions and answers.
590.304 Protests and answers.
590.305 Informal discovery.
590.306 Subpoenas.
590.307 Depositions.
590.308 Admissions of facts.
590.309 Settlements.
590.310 Opportunity for additional procedures.
590.311 Conferences.
590.312 Oral presentations.
590.313 Trial-type hearings.
590.314 Presiding officials.
590.315 Witnesses.
590.316 Shortened proceedings.
590.317 Complaints.
10 CFR 580.03 Subpart D -- Opinions and Orders
590.401 Orders to show cause.
590.402 Conditional orders.
590.403 Emergency interim orders.
590.404 Final opinions and orders.
590.405 Transferability.
590.406 Compliance with orders.
590.407 Reports of changes.
10 CFR 580.03 Subpart E -- Applications for Rehearing
590.501 Filing.
590.502 Application is not a stay.
590.503 Opinion and order on rehearing.
590.504 Denial by operation of law.
590.505 Answers to applications for rehearing.
Authority: Secs. 301(b), 402(f), and 644, Pub. L. 95-91, 91 Stat.
578, 585, and 599 (42 U.S.C. 7151(b), 7172(f), and 7254), Sec. 3, Act
of June 21, 1938, c. 556, 52 Stat. 822 (15 U.S.C. 717b); E.O. 12009
(42 FR 46267, September 15, 1977); DOE Delegation Order Nos. 0204-111
and 0204-127 (49 FR 6684, February 22, 1984; 54 FR 11437, March 20,
1989).
Source: 54 FR 53531, Dec. 29, 1989, unless otherwise noted.
10 CFR 580.03 Subpart A -- General Provisions
10 CFR 590.100 OMB Control Numbers.
The information collection requirements contained in this part have
been approved by the Office of Management and Budget under Control No.
1903-0081.
10 CFR 590.101 Purpose and scope.
The purpose of this part is to establish the rules and procedures
required to be followed by persons to obtain authorizations from DOE to
import or export natural gas under the Natural Gas Act and by all other
persons interested in participating in a natural gas import or export
proceeding before the agency. This part establishes the procedural
rules necessary to implement the authorities vested in the Secretary of
Energy by sections 301(b) and 402(f) of the DOE Act, which have been
delegated to the Assistant Secretary.
10 CFR 590.102 Definitions.
As used in this part:
(a) Assistant Secretary means the Assistant Secretary for Fossil
Energy or any employee of the DOE who has been delegated final
decisional authority.
(b) Contested proceeding means a proceeding:
(1) Where a protest or a motion to intervene, or a notice of
intervention, in opposition to an application or other requested action
has been filed, or
(2) Where a party otherwise notifies the Assistant Secretary and the
other parties to a proceeding in writing that it opposes an application
or other requested action.
(c) Decisional employee means the Assistant Secretary, presiding
officials at conferences, oral presentations or trial-type hearings, and
any other employee of the DOE, including consultants and contractors,
who are, or may reasonably be expected to be, involved in the
decision-making process, including advising the Assistant Secretary on
the resolution of issues involved in a proceeding. The term includes
those employees of the DOE assisting in the conduct of trial-type
hearings by performing functions on behalf of the Assistant Secretary or
presiding official.
(d) DOE means the Department of Energy, of which FE is a part.
(e) DOE Act means the Department of Energy Organization Act, Pub. L.
95-91, 91 Stat. 565 (42 U.S.C. 7101 et seq.).
(f) FE means the Office of The Assistant Secretary for Fossil Energy.
(g) FERC means the Federal Energy Regulatory Commission.
(h) Interested person means a person, other than a decisional
employee, whose interest in a proceeding goes beyond the general
interest of the public as a whole and includes applicants, intervenors,
competitors of applicants, and other individuals and organizations,
including non-profit and public interest organizations, and state,
local, and other public officials, with a proprietary, financial or
other special interest in the outcome of a proceeding. The term does
not include other federal agencies or foreign governments and their
representatives, unless the agency, foreign government, or
representative of a foreign government is a party to the proceeding.
(i) Natural gas means natural gas and mixtures of natural gas and
synthetic natural gas, regardless of physical form or phase, including
liquefied natural gas and gels primarily composed of natural gas.
(j) NGA means the Natural Gas Act of June 21, 1938, c. 556, 52 Stat.
821 (15 U.S.C. 717 et seq.).
(k) Off-the-record communication means a written or oral
communication not on the record which is relevant to the merits of a
proceeding, and about which the parties have not been given reasonable
prior notice of the nature and purpose of the communication and an
opportunity to be present during such communication or, in the case of a
written communication, an opportunity to respond to the communication.
It does not include communications concerned solely with procedures
which are not relevant to the merits of a proceeding. It also does not
include general background discussions about an entire industry or
natural gas markets or communications of a general nature made in the
course of developing agency policy for future general application, even
though these discussions may relate to the merits of a particular
proceeding.
(l) Party means an applicant, any person who has filed a motion for
and been granted intervenor status or whose motion to intervene is
pending, and any state commission which has intervened by notice
pursuant to 590.303(a).
(m) Person means any individual, firm, estate, trust, partnership,
association, company, joint-venture, corporation, United States local,
state and federal governmental unit or instrumentality thereof,
charitable, educational or other institution, and others, including any
officer, director, owner, employee, or duly authorized representative of
any of the foregoing.
(n) Presiding official means any employee of the DOE who has been
designated by the Assistant Secretary to conduct any stage of a
proceeding, which may include presiding at a conference, oral
presentation, or trial-type hearing, and who has been delegated the
auhority of the Assistant Secretary to make rulings and issue orders in
the conduct of such proceeding, other than final opinions and orders,
orders to show cause, emergency interim orders, or conditional decisions
under subpart D and orders on rehearing under subpart E.
(o) Proceeding means the process and activity, and any part thereof,
instituted by FE either in response to an application, petition, motion
or other filing under this part, or on its own initiative, by which FE
develops and considers the relevant facts, policy and applicable law
concerning the importation or exportation of natural gas and which may
lead to the issuance of an order by the Assistant Secretary under
subparts D and E.
(p) State commission means the regulatory body of a state or
municipality having jurisdiction to regulate rates and charges for the
sale of natural gas to consumers within the state or municipality, or
having any regulatory jurisdiction over parties involved in the import
or export arrangement.
10 CFR 590.103 General requirements for filing documents with FE.
(a) Any document, including but not limited to an application,
amendment of an application, request, petition, motion, answer, comment,
protest, complaint, and any exhibit submitted in connection with such
documents, shall be filed with FE under this part. Such document shall
be considered officially filed with FE when it has been received and
stamped with the time and date of receipt by the Office of Fuels
Programs, FE. Documents transmitted to FE must be addressed as provided
in 590.104. All documents and exhibits become part of the record in the
official FE docket file and will not be returned. An original and
fifteen (15) copies of all applications, filings and submittals shall be
provided to FE. No specific format is required. Applicants required to
file quarterly reports as a condition to an authorization need only file
an original and four (4) copies.
(b) Upon receipt by FE, each application or other initial request for
action shall be assigned a docket number. Any petition, motion, answer,
request, comment, protest, complaint or other document filed
subsequently in a docketed proceeding with FE shall refer to the
assigned docket number. All documents shall be signed either by the
person upon whose behalf the document is filed or by an authorized
representative. Documents signed by an authorized representative shall
contain a certified statement that the representative is a duly
authorized representative unless the representative has a certified
statement already on file in the FE docket of the proceeding. All
documents shall also be verified under oath or affirmation by the person
filing, or by an officer or authorized representative of the firm having
knowledge of the facts alleged. Each document filed with FE shall
contain a certification that a copy has been served as required by
590.107 and indicate the date of service. Service of each document must
be made not later than the date of the filing of the document.
(c) A person who files an application shall state whether, to the
best knowledge of that person, the same or a related matter is being
considered by any other part of the DOE, including the FERC, or any
other Federal agency or department and, if so, shall identify the matter
and the agency or department.
10 CFR 590.104 Address for filing documents.
All documents filed under this part shall be addressed to: Office of
Fuels Programs, Fossil Energy, U.S. Department of Energy, Docket Room
3F-056, FE-50, Forrestal Building, 1000 Independence Avenue SW.,
Washington, DC 20585. All hand delivered documents shall be filed with
the Office of Fuels Programs at the above address between the hours of 8
a.m. and 4:30 p.m., Monday through Friday, except Federal holidays.
10 CFR 590.105 Computation of time.
(a) In computing any period of time prescribed or allowed by these
regulations, the day of the act or event from which the designated
period of time begins to run is not included. The period of time begins
to run the next day after the day of the act or event. The last day of
the period so computed is included unless it is a Saturday, Sunday, or
legal Federal holiday, in which event the period runs until the end of
the next day that is neither a Saturday, Sunday, nor a legal Federal
holiday, unless otherwise provided by this part or by the terms of an FE
order. Documents received after the regular business hours of 8 a.m. to
4:30 p.m. are deemed filed on the next regular business day.
(b) When a document is required to be filed with FE within a
prescribed time, an extension of time to file may be granted for good
cause shown.
(c) An order is issued and effective when date stamped by the Office
of Fuels Programs, FE, after the order has been signed unless another
effective date is specified in the order.
10 CFR 590.106 Dockets.
The FE shall maintain a docket file of each proceeding under this
part, which shall contain the official record upon which all orders
provided for in subparts D and E shall be based. The official record in
a particular proceeding shall include the official service list, all
documents filed under 590.103, the official transcripts of any
procedures held under subpart C, and opinions and orders issued by FE
under subparts D and E, and reports of contract amendments under
590.407. All dockets shall be available for inspection and copying by
the public during regular business hours between 8 a.m. and 4:30 p.m.
Dockets are located in the Office of Fuels Programs, FE, Docket Room
3F-056, Forrestal Building, 1000 Independence Avenue SW., Washington, DC
20585.
10 CFR 590.107 Service.
(a) An applicant, any other party to a proceeding, or a person filing
a protest shall serve a copy of all documents filed with FE upon all
parties unless otherwise provided in this part. The copy of a document
served upon parties shall be a true copy of the document filed with FE,
but does not have to be a copy stamped with the time and date of receipt
by FE. The FE shall maintain an official service list for each
proceeding which shall be provided upon request.
(b) When the parties are not known, such as during the initial
comment period following publication of the notice of application,
service requirements under paragraph (a) of this section may be met by
serving a copy of all documents on the applicant and on FE for inclusion
in the FE docket in the proceeding.
(c) All documents required to be served under this part may be served
by hand, certified mail, registered mail, or regular mail. It shall be
the responsibility of the serving party to ensure that service is
effected in a timely manner. Service is deemed complete upon delivery
or upon mailing, whichever occurs first.
(d) Service upon a person's duly authorized representatives on the
official service list shall constitute service upon that person.
(e) All FE orders, notices, or other FE documents shall be served on
the parties by FE either by hand, registered mail, certified mail, or
regular mail, except as otherwise provided in this part.
10 CFR 590.108 Off-the-record communications.
(a) In any contested proceeding under this part:
(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 off-the-record communication prohibited by this section
shall prepare a memorandum stating the substance of the communication
and any responses made to it.
(4) Within forty-eight (48) hours of the off-the-record
communication, a copy of all written off-the-record communications or
memoranda prepared in compliance with paragraph (a)(3) of this section
shall be delivered by the decisional employee to the Assistant Secretary
and to the Deputy Assistant Secretary for Fuels Programs. The materials
will then be made available for public inspection by placing them in the
docket associated with the proceeding.
(5) Requests by a party for an opportunity to rebut, on the record,
any facts or contentions in an off-the-record communication may be filed
in writing with the Assistant Secretary. The Assistant Secretary shall
grant such requests only for good cause.
(6) Upon being notified of an off-the-record communication made by a
party in violation of this section, the Assistant Secretary may, to the
extent consistent with the interests of justice and the policies of the
NGA and the DOE Act, require the party to show cause why the party's
claim or interest in the proceeding should not be dismissed, denied,
disregarded, or otherwise adversely affected on account of the
violation.
(b) The prohibitions of paragraph (a) of the section shall apply only
to contested proceedings and begin at the time either a protest or a
motion to intervene or notice of intervention in opposition to the
application or other requested action is filed with FE, or a party
otherwise specifically notifies the Assistant Secretary and the other
parties in writing of its opposition to the application or other
requested action, whichever occurs first.
10 CFR 590.109 FE investigations.
The Assistant Secretary or the Assistant Secretary's delegate may
investigate any facts, conditions, practices, or other matters within
the scope of this part in order to determine whether any person has
violated or is about to violate any provision of the NGA or other
statute or any rule, regulation, or order within the Assistant
Secretary's jurisdiction. In conducting such investigations, the
Assistant Secretary or the Assistant Secretary's delegate may, among
other things, subpoena witnesses to testify, subpoena or otherwise
require the submission of documents, and order testimony to be taken by
deposition.
10 CFR 590.109 Subpart B -- Applications for Authorization to Import or Export Natural Gas
10 CFR 590.201 General.
(a) Any person seeking authorization to import or export natural gas
into or from the United States, to amend an existing import or export
authorization, or seeking any other requested action, shall file an
application with the FE under the provisions of this part.
(b) Applications shall be filed at least ninety (90) days in advance
of the proposed import or export or other requested action, unless a
later date is permitted for good cause shown.
(54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990)
10 CFR 590.202 Contents of applications.
(a) Each application filed under 590.201 shall contain the exact
legal name of the applicant, the names, titles, and mailing addresses of
a maximum of two persons for the official service list, a statement
describing the action sought from FE, the justification for such action,
including why the proposed action is not inconsistent with the public
interest, and the FE docket number, if applicable.
(b) Each application shall include the matters listed below to the
extent applicable. All factual matters shall be supported to the extent
practicable by the necessary data or documents. Copies of relevant
documents filed or intended to be filed with FERC may be submitted to
satisfy the requirements of this section. Topics to be addressed or
described shall include:
(1) The scope of the project, including the volumes of natural gas
involved, expressed in either Mcf or Bcf and their Btu equivalents, the
dates of commencement and completion of the proposed import or export,
and the facilities to be utilized or constructed;
(2) The source and security of the natural gas supply to be imported
or exported, including contract volumes and a description of the gas
reserves supporting the project during the term of the requested
authorization;
(3) Identification of all the participants in the transaction,
including the parent company, if any, and identification of any
corporate or other affiliations among the participants;
(4) The terms of the transaction, such as take-or-pay obligations,
make-up provisions, and other terms that affect the marketability of the
gas;
(5) The provisions of the import arrangement which establish the base
price, volume requirements, transportation and other costs, and allow
adjustments during the life of the project, and a demonstration as to
why the import arrangement is and will remain competitive over the life
of the project and is otherwise not inconsistent with the public
interest;
(6) For proposed imports, the need for the natural gas by the
applicant or applicant's prospective customers, including a description
of the persons who are expected to purchase the natural gas; and for
proposed exports, the lack of a national or regional need for the gas;
and
(7) The potential environmental impact of the project. To the extent
possible, the application shall include a listing and description of any
environmental assessments or studies being performed on the proposed gas
project. The application shall be updated as the status of any
environmental assessments changes.
(c) The application shall also have attached a statement, including a
signed opinion of legal counsel, showing that a proposed import or
export of natural gas is within the corporate powers of the applicant
and a copy of all relevant contracts and purchase agreements.
(d) The Assistant Secretary or the Assistant Secretary's delegate may
at any time require the applicant and other parties to make supplemental
filings of additional information necessary to resolve issues raised by
the application.
(e) All information and data filed in support of or against an
application will be placed in the official FE docket file of the
proceeding and will not be afforded confidential treatment, unless the
party shows why the information or data should be exempted from public
disclosure and the Assistant Secretary or Assistant Secretary's delegate
determines that such information or data shall be afforded confidential
treatment. Such determination shall be made in accordance with 10 CFR
1004.11.
(54 FR 53531, Dec. 29, 1989; 55 FR 18227, May 1, 1990)
10 CFR 590.203 Deficient applications.
If an application is incomplete or otherwise deemed deficient, the
Assistant Secretary or the Assistant Secretary's delegate may require
the applicant to submit additional information or exhibits to remedy the
deficiency. If the applicant does not remedy the deficiency within the
time specified by the Assistant Secretary or the Assistant Secretary's
delegate, the application may be dismissed without prejudice to refiling
at another time.
10 CFR 590.204 Amendment or withdrawal of applications.
(a) The applicant may amend or supplement the application at any time
prior to issuance of the Assistant Secretary's final opinion and order
resolving the application, and shall amend or supplement the application
whenever there are changes in material facts or conditions upon which
the proposal is based.
(b) The Assistant Secretary may for good cause shown by motion of a
party or upon the Assistant Secretary's own initiative decline to act
on, in whole or in part, an amendment or supplement requested by an
applicant under paragraph (a) of this section.
(c) After written notice to FE and service upon the parties of that
notice an applicant may withdraw an application. Such withdrawal shall
be effective thirty (30) days after notice to FE if the Assistant
Secretary does not issue an order to the contrary within that time
period.
10 CFR 590.205 Notice of applications.
(a) Upon receipt of an application, the FE shall publish a notice of
application in the Federal Register. The notice shall summarize the
proposal. Except in emergency circumstances, generally the notice shall
provide a time limit of not less than thirty (30) days from the notice's
date of publication in the Federal Register for persons to file
protests, comments, or a motion to intervene or notice of intervention,
as applicable. The notice may also request comments on specific issues
or matters of fact, law, or policy raised by the application.
(b) The notice of application shall advise the parties of their right
to request additional procedures, including the opportunity to file
written comments and to request that a conference, oral presentation, or
trial-type hearing be convened. Failure to request additional
procedures at this time shall be deemed a waiver of any right to
additional procedures should the Assistant Secretary decide to grant the
application and authorize the import or export by issuing a final
opinion and order in accordance with 590.316.
(c) Where negotiations between the DOE, including FE, and a foreign
government have resulted in a formal policy agreement or statement
affecting a particular import or export proceeding, FE shall include in
the notice of application a description of the terms or policy positions
of that agreement or statement to the extent they apply to the
proceeding, and invite comment. A formal policy agreement or statement
affecting a particular import or export proceeding that is arrived at
after publication of the notice of application shall be placed on the
record in that proceeding and the parties given an opportunity to
comment thereon.
10 CFR 590.206 Notice of procedures.
In all proceedings where, following a notice of application and the
time specified in the notice for the filing of responses thereto, the
Assistant Secretary determines to have additional procedures, which may
consist of the filing of supplemental written comments, written
interrogatories or other discovery procedures, a conference, oral
presentation, or trial-type hearing, the Assistant Secretary shall
provide the parties with notice of the procedures the Assistant
Secretary has determined to follow in the proceeding and advise the
parties of their right to request any additional procedures in
accordance with the provisions of 590.310. The notice of procedures may
identify and request comments on specific issues of fact, law, or policy
relevant to the proceeding and may establish a time limit for requesting
additional procedures.
10 CFR 590.207 Filing fees.
A non-refundable filing fee of fifty dollars ($50) shall accompany
each application filed under 590.201. Checks shall be made payable to
''Treasury of the United States.''
10 CFR 590.208 Small volume exports.
Any person may export up to 100,000 cubic feet of natural gas (14.73
pounds per square inch at 60 degrees Fahrenheit) or the liquefied or
compressed equivalent thereof, in a single shipment for scientific,
experimental, or other non-utility gas use without prior authorization
of the Assistant Secretary.
10 CFR 590.209 Exchanges by displacement.
Any importer of natural gas may enter into an exchange by
displacement agreement without the prior authorization of the Assistant
Secretary when the net effect of the exchange is no different than under
the importer's existing authorization. An exchange by displacement is
an arrangement whereby authorized imported volumes are displaced by
other gas for purposes of storage or flexibility. The term of the
exchange agreement may not exceed five (5) years, the volumes imported
may not exceed the importer's existing import authorization, and no
actual natural gas may flow across the United States border under the
terms of the exchange agreement. Any importer who enters into an
exchange agreement pursuant to this section shall file with FE within
fifteen (15) days after the start up of the exchange, a written
description of the transaction, the exact volume of natural gas to be
displaced, the name of the purchaser, and the import authorization under
which the exchange is being carried out.
10 CFR 590.209 Subpart C -- Procedures
10 CFR 590.301 General.
The procedures of this subpart are applicable to proceedings
conducted on all applications or other requested actions filed under
this part. The Assistant Secretary may conduct all aspects of the
procedures of this subpart or may designate a presiding official
pursuant to 590.314.
10 CFR 590.302 Motions and answers.
(a) Motions for any procedural or interlocutory ruling shall set
forth the ruling or relief requested and state the grounds and the
statutory or other authority relied upon. All written motions shall
comply with the filing requirements of 590.103. Motions made during
conferences, oral presentations or trial-type hearings may be stated
orally upon the record, unless the Assistant Secretary or the presiding
official determines otherwise.
(b) Any party may file an answer to any written motion within fifteen
(15) days after the motion is filed, unless another period of time is
established by the Assistant Secretary or the presiding official.
Answers shall be in writing and shall detail each material allegation of
the motion being answered. Answers shall state clearly and concisely
the facts and legal authorities relied upon.
(c) Any motion, except for motions seeking intervention or requesting
that a conference, oral presentation or trial-type hearing be held,
shall be deemed to have been denied, unless the Assistant Secretary or
presiding official acts within thirty (30) days after the motion is
filed.
10 CFR 590.303 Interventions and answers.
(a) A state commission may intervene in a proceeding under this part
as a matter of right and become a party to the proceeding by filing a
notice of intervention no later than the date fixed for filing motions
to intervene in the applicable FE notice or order. If the period for
filing the notice has expired, a state commission may be permitted to
intervene by complying with the filing and other requirements applicable
to any other person seeking to become a party to the proceeding as
provided in this section.
(b) Any other person who seeks to become a party to a proceeding
shall file a motion to intervene, which sets out clearly and concisely
the facts upon which the petitioner's claim of interest is based.
(c) A motion to intervene shall state, to the extent known, the
position taken by the movant and the factual and legal basis for such
positions in order to advise the parties and the Assistant Secretary as
to the specific issues of policy, fact, or law to be raised or
controverted.
(d) Motions to intervene may be filed at any time following the
filing of an application, but no later than the date fixed for filing
such motions or notices in the applicable FE notice or order, unless a
later date is permitted by the Assistant Secretary for good cause shown
and after considering the impact of granting the late motion of the
proceeding. Each motion or notice shall list the names, titles, and
mailing addresses of a maximum of two persons for the official service
list.
(e) Any party may file an answer to a motion to intervene, but such
answer shall be made within fifteen (15) days after the motion to
intervene was filed, unless a later date is permitted by the Assistant
Secretary for good cause shown. Answers shall be in writing. Answers
shall detail each material allegation of the motion to intervene being
answered and state clearly and concisely the facts and legal authorities
relied upon. Failure to answer is deemed a waiver of any objection to
the intervention. This paragraph does not prevent the Assistant
Secretary from ruling on a motion to intervene and issuing a final
opinion and order in accordance with 590.316 prior to the expiration of
the fifteen (15) days in which a party has to answer a motion to
intervene.
(f) If an answer in opposition to a motion to intervene is timely
filed or if the motion to intervene is not timely filed, then the movant
becomes a party only after the motion to intervene is expressly granted.
(g) If no answer in opposition to a motion to intervene is filed
within the period of time prescribed in paragraph (e) of this section,
the motion to intervene shall be deemed to be granted, unless the
Assistant Secretary denies the motion in whole or in part or otherwise
limits the intervention prior to the expiration of the time allowed in
paragraph (e) for filing an answer to the motion to intervene. Where
the motion to intervene is deemed granted, the participation of the
intervenor shall be limited to matters affecting asserted rights and
interests specifically set forth in the motion to intervene, and the
admission of such intervenor to party status shall not be construed as
recognition by FE that the intervenor might be aggrieved because of any
order issued.
(h) In the event that a motion for late intervention is granted, an
intervenor shall accept the record of the proceeding as it was developed
prior to the intervention.
10 CFR 590.304 Protests and answers.
(a) Any person objecting to an application filed under 590.201 of
this part or to any action taken by FE under this part may file a
protest. No particular form is required. The protest shall identify
the person filing the protest, the application or action being objected
to, and provide a concise statement of the reasons for the protest.
(b) The filing of a protest, without also filing a motion to
intervene or a notice of intervention, shall not make the person filing
the protest a party to the proceeding.
(c) A protest shall be made part of the official FE docket file in
the proceeding and shall be considered as a statement of position of the
person filing the protest, but not as establishing the validity of any
assertion upon which the decision would be based.
(d) Protests shall be served on the applicant and all parties by the
person filing the protest. If the person filing the protest is unable
to provide service on any person identified as a party to the proceeding
after a good faith effort, then FE shall effect service. However, when
the parties are not known, service requirements may be met by serving a
copy on the applicant and on FE as provided in 590.107(b).
(e) Protests may be filed at any time following the filing of an
application, but no later than the date fixed for filing protests in the
applicable FE notice or order, unless a later date is permitted by the
Assistant Secretary for good cause shown.
(f) Any party may file an answer to a protest but such answer must be
filed within fifteen (15) days after the protest was filed, unless a
later date is permitted by the Assistant Secretary for good cause shown.
(54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990)
10 CFR 590.305 Informal discovery.
The parties to a proceeding may conduct discovery through use of
procedures such as written interrogatories or production of documents.
In response to a motion by a party, the Assistant Secretary or presiding
official may determine the procedures to be utilized for discovery if
the parties cannot agree on such procedures.
10 CFR 590.306 Subpoenas.
(a) Subpoenas for the attendance of witnesses at a trial-type hearing
or for the production of documentary evidence may be issued upon the
initiative of the Assistant Secretary or presiding official, or upon
written motion of a party or oral motion of a party during a conference,
oral presentation, or trial-type hearing, if the Assistant Secretary or
presiding official determines that the evidence sought is relevant and
material.
(b) Motions for the issuance of a subpoena shall specify the
relevance, materiality, and scope of the testimony or documentary
evidence sought, including, as to documentary evidence, specification to
the extent possible of the documents sought and the facts to be proven
by them, the issues to which they relate, and why the information or
evidence was not obtainable through discovery procedures agreed upon by
the parties.
(c) If service of a subpoena is' made by a United States Marshal or a
Deputy United States Marshal, service shall be evidenced by their
return. If made by another person, that person shall affirm that
service has occurred and file an affidavit to that effect with the
original subpoena. A witness who is subpoenaed shall be entitled to
witness fees as provided in 590.315(c).
10 CFR 590.307 Depositions.
(a) Upon motion filed by a party, the Assistant Secretary or
presiding official may authorize the taking of testimony of any witness
by deposition. Unless otherwise directed in the authorization issued, a
witness being deposed may be examined regarding any matter which is
relevant to the issues involved in the pending proceeding.
(b) Parties authorized to take a deposition shall provide written
notice to the witness and all other parties at least ten (10) days in
advance of the deposition unless such advance notice is waived by mutual
agreement of the parties.
(c) The requesting motion and notice shall state the name and mailing
address of the witness, delineate the subject matters on which the
witness is expected to testify, state the reason why the deposition
should be taken, indicate the time and place of the deposition, and
provide the name and mailing address of the person taking the
deposition.
(d) A witness whose testimony is taken by deposition shall be sworn
in or shall affirm concerning the matter about which the witness has
been called to testify before any questions are asked or testimony
given. A witness deposed shall be entitled to witness fees as provided
in 590.315(c).
(e) The moving party shall file the entire deposition with FE after
it has been subscribed and certified. No portion of the deposition
shall constitute a part of the record in the proceedings unless received
in evidence, in whole or in part, by the Assistant Secretary or
presiding official.
10 CFR 590.308 Admissions of facts.
(a) At any time prior to the end of a trial-type hearing, or, if
there is no trial-type hearing, prior to the issuance of a final opinion
and order under 590.404, any party, the Assistant Secretary, or the
presiding official may serve on any party a written request for
admission of the truth of any matters at issue in the proceeding that
relate to statements or opinions of fact or of the application of law to
fact.
(b) A matter shall be considered admitted and conclusively
established for the purposes of any proceeding in which a request for
admission is served unless, within fifteen (15) days of such time limit
established by the Assistant Secretary or presiding official, the party
to whom the request is directed answers or objects to the request. Any
answer shall specifically admit or deny the matter, or set forth in
detail the reasons why the answering party cannot truthfully admit or
deny the matter. An answering party may not give lack of information or
knowledge as a reason for failure to admit or deny, unless the answering
party states that, after reasonable inquiry, the answering party has
been unable to obtain sufficient information to admit or deny. If an
objection is made, the answering party shall state the reasons for the
objection.
(c) If the Assistant Secretary or presiding official determines that
an answer to a request for admission does not comply with the
requirements of this section, the Assistant Secretary or presiding
official may order either that the matter is admitted or that an amended
answer be served.
(d) A copy of all requests for admission and answers thereto shall be
filed with FE in accordance with 590.103. Copies of any documents
referenced in the request shall be served with the request unless they
are known to be in the possession of the other parties.
(e) The Assistant Secretary or presiding official may limit the
number of requests for admission of facts in order to expedite a
proceeding through elimination of duplicative requests.
10 CFR 590.309 Settlements.
The parties may conduct settlement negotiations. If settlement
negotiations are conducted during a conference, at the request of one of
the parties, the Assistant Secretary or presiding official may order
that the discussions be off-the-record with no transcript of such
settlement negotiations being prepared for inclusion in the official
record of the proceeding. No offer of settlement, comment or discussion
by the parties with respect to an offer of settlement shall be subject
to discovery or admissible into evidence against any parties who object
to its admission.
10 CFR 590.310 Opportunity for additional procedures.
Any party may file a motion requesting additional procedures,
including the opportunity to file written comments, request written
interrogatories or other discovery procedures, or request that a
conference, oral presentation or trial-type hearing be held. The motion
shall describe what type of procedure is requested and include the
information required by 590.311, 590.312 and 590.313, as appropriate.
Failure to request additional procedures within the time specified in
the notice of application or in the notice of procedure, if applicable,
shall constitute a waiver of that right unless the Assistant Secretary
for good cause shown grants additional time for requesting additional
procedures. If no time limit is specified in the notice or order,
additional procedures may be requested at any time prior to the issuance
of a final opinion and order. At any time during a proceeding, the
Assistant Secretary or presiding official may on his or her own
initiative determine to provide additional procedures.
(54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990)
10 CFR 590.311 Conferences.
(a) Upon motion by a party, a conference of the parties may be
convened to adjust or settle the proceedings, set schedules, delineate
issues, stipulate certain issues of fact or law, set procedures, and
consider other relevant matters where it appears that a conference will
materially advance the proceeding. The Assistant Secretary or presiding
official may delineate the issues which are to be considered and may
place appropriate limitations on the number of intervenors who may
participate, if two or more intervenors have substantially like
interests.
(b) A motion by a party for a conference shall include a specific
showing why a conference will materially advance the proceeding.
(c) Conferences shall be recorded, unless otherwise ordered by the
Assistant Secretary or presiding official, and the transcript shall be
made a part of the official record of the proceeding and available to
the public.
10 CFR 590.312 Oral presentations.
(a) Any party may file a motion requesting an opportunity to make an
oral presentation of views, arguments, including arguments of counsel,
and data on any aspect of the proceeding. The motion shall identify the
substantial question of fact, law or policy at issue and demonstrate
that it is material and relevant to the merits of the proceeding. The
party may submit material supporting the existence of substantial
issues. The Assistant Secretary or presiding official ordinarily will
grant a party's motion for an oral presentation, if the Assistant
Secretary or presiding official determines that a substantial question
of fact, law, or policy is at issue in the proceeding and illumination
of that question will be aided materially by such an oral presentation.
(b) The Assistant Secretary or presiding official may require parties
making oral presentations to file briefs or other documents prior to the
oral presentation. The Assistant Secretary or presiding official also
may delineate the issues that are to be considered at the oral
presentation and place appropriate limitations on the number of
intervenors who may participate if two or more intervenors have
substantially like interests.
(c) Oral presentations shall be conducted in an informal manner with
the Assistant Secretary or the presiding official and other decisional
employees presiding as a panel. The panel may question those parties
making an oral presentation. Cross-examination by the parties and other
more formal procedures used in trial-type hearings will not be available
in oral presentations. The oral presentation may be, but need not be,
made by legal counsel.
(d) Oral presentations shall be recorded, and the transcript shall be
made part of the official record of the proceeding and available to the
public.
10 CFR 590.313 Trial-type hearings.
(a) Any party may file a motion for a trial-type hearing for the
purpose of taking evidence on relevant and material issues of fact
genuinely in dispute in the proceeding. The motion shall identify the
factual issues in dispute and the evidence that will be presented. The
party must demonstrate that the issues are genuinely in dispute,
relevant and material to the decision and that a trial-type hearing is
necessary for a full and true disclosure of the facts. The Assistant
Secretary or presiding official shall grant a party's motion for a
trial-type hearing, if the Assistant Secretary or presiding official
determines that there is a relevant and material factual issue genuinely
in dispute and that a trial-type hearing is necessary for a full and
true disclosure of the facts.
(b) In trial-type hearings, the parties shall have the right to be
represented by counsel, to request discovery, to present the direct and
rebuttal testimony of witnesses, to cross-examine witnesses under oath,
and to present documentary evidence.
(c) The Assistant Secretary or presiding official upon his or her own
initiative or upon the motion of any party may consolidate any
proceedings involving common questions of fact in whole or in part for a
trial-type hearing. The Assistant Secretary or presiding official may
also place appropriate limitations on the number of intervenors who may
participate if two or more intervenors have substantially like
interests.
(d) The Assistant Secretary or presiding official may make such
rulings for trial-type hearings, including delineation of the issues and
limitation of cross-examination of a witness, as are necessary to obtain
a full and true disclosure of the facts and to limit irrelevant,
immaterial, or unduly repetitious evidence.
(e) At trial-type hearings, the Assistant Secretary or presiding
official, or any other decisional employee directed by the Assistant
Secretary or presiding official, may call witnesses for testimony or
presenting exhibits that directly relate to a particular issue of fact
to be considered at the hearing. The Assistant Secretary or presiding
official, or any other decisional employee directed by the Assistant
Secretary or presiding official, may also question witnesses offered by
the parties concerning their testimony.
(f) Trial-type hearings shall be recorded, and the transcript shall
be made part of the official record of the proceeding and available to
the public.
10 CFR 590.314 Presiding officials.
(a) The Assistant Secretary may designate a presiding official to
conduct any stage of the proceeding, including officiating at a
conference, oral presentation, or trial-type hearing. The presiding
official shall have the full authority of the Assistant Secretary during
such proceedings.
(b) A presiding official at a conference, oral presentation, or
trial-type hearing shall have the authority to regulate the conduct of
the proceeding including, but not limited to, determination of the
issues to be raised during the course of the conference, oral
presentation, or trial-type hearing, administering oaths or
affirmations, directing discovery, ruling on objections to the
presentation of testimony or exhibits, receiving relevant and material
evidence, requiring the advance submission of written testimony and
exhibits, ruling on motions, determining the format, directing that
briefs be filed with respect to issues raised or to be raised during the
course of the conference, oral presentation or trial-type hearing,
questioning witnesses, taking reasonable measures to exclude duplicative
material, and placing limitations on the number of witnesses to be
called by a party.
10 CFR 590.315 Witnesses.
(a) The Assistant Secretary or presiding official may require that
the direct testimony of witnesses in trial-type hearings be submitted in
advance of the hearing and be under oath, and in written form.
(b) Witnesses who testify in trial-type hearings shall be under oath
or affirmation before being allowed to testify.
(c) Witnesses subpoenaed pursuant to 590.306 shall be paid the same
fees and mileage as paid for like services in the District Courts of the
United States.
(d) Witnesses subpoenaed pursuant to 590.307 shall be paid the same
fees and mileage as paid for like services in the District Court of the
United States.
(54 FR 53531, Dec. 29, 1989; 55 FR 14916, Apr. 19, 1990)
10 CFR 590.316 Shortened proceedings.
In any proceeding where, in response to a notice of application or
notice of procedures, if applicable, no party files a motion requesting
additional procedures, including the right to file written comments, or
the holding of a conference, oral presentation, or trial-type hearing,
or where the Assistant Secretary determines that such requested
additional procedures are not required pursuant to 590.310, 590.311,
590.312 and 590.313, the Assistant Secretary may issue a final opinion
and order on the basis of the official record, including the application
and all other filings. In any proceeding in which the Assistant
Secretary intends to deny the application or grant the application with
the attachment of material conditions unknown to, or likely to be
opposed by, the applicant, solely on the basis of the application and
responses to the notice of application or notice of procedures, if
applicable, without additional procedures, the Assistant Secretary shall
advise the parties in writing generally of the issues of concern to the
Assistant Secretary upon which the denial or material conditions would
be based and provide them with an opportunity to request additional
procedures pursuant to 590.310, 590.311, 590.312 and 590.313.
10 CFR 590.317 Complaints.
(a) Any person may file a complaint objecting to the actions by any
other person under any statute, rule, order or authorization applicable
to an existing import or export authorization over which FE has
jurisdiction. No particular form is required. The complaint must be
filed with FE in writing and must contain the name and address of the
complainant and the respondent and state the facts forming the basis of
the complaint.
(b) A complaint concerning an existing import or export authorization
shall be served on all parties to the original import or export
authorization proceeding either by the complainant or by FE if the
complainant has made a good faith effort but has been unable to effect
service.
(c) The Assistant Secretary may issue an order to show cause under
590.401, or may provide opportunity for additional procedures pursuant
to 590.310, 590.311, 590.312, or 590.313, in order to determine what
action should be taken in response to the complaint.
10 CFR 590.317 Subpart D -- Opinions and Orders
10 CFR 590.401 Orders to show cause.
A proceeding under this part may commence upon the initiative of the
Assistant Secretary or in response to an application by any person
requesting FE action against any other person alleged to be in
contravention or violation of any authorization, statute, rule, order,
or law administered by FE applicable to the import or export of natural
gas, or for any other alleged wrong involving importation or exportation
of natural gas over which FE has jurisdiction. Any show cause order
issued shall identify the matters of interest or the matters complained
of that the Assistant Secretary is inquiring about, and shall be deemed
to be tentative and for the purpose of framing issues for consideration
and decision. The respondent named in the order shall respond orally or
in writing, or both, as required by the order. A show cause order is
not a final opinion and order.
10 CFR 590.402 Conditional orders.
The Assistant Secretary may issue a conditional order at any time
during a proceeding prior to issuance of a final opinion and order. The
conditional order shall include the basis for not issuing a final
opinion and order at that time and a statement of findings and
conclusions. The findings and conclusions shall be based solely on the
official record of the proceeding.
10 CFR 590.403 Emergency interim orders.
Where consistent with the public interest, the Assistant Secretary
may waive further procedures and issue an emergency interim order
authorizing the import or export of natural gas. After issuance of the
emergency interim order, the proceeding shall be continued until the
record is complete, at which time a final opinion and order shall be
issued. The Assistant Secretary may attach necessary or appropriate
terms and conditions to the emergency interim order to ensure that the
authorized action will be consistent with the public interest.
10 CFR 590.404 Final opinions and orders.
The Assistant Secretary shall issue a final opinion and order and
attach such conditions thereto as may be required by the public interest
after completion and review of the record. The final opinion and order
shall be based solely on the official record of the proceeding and
include a statement of findings and conclusions, as well as the reasons
or basis for them, and the appropriate order, condition, sanction,
relief or denial.
10 CFR 590.405 Transferability.
Authorizations by the Assistant Secretary to import or export natural
gas shall not be transferable or assignable, unless specifically
authorized by the Assistant Secretary.
10 CFR 590.406 Compliance with orders.
Any person required or authorized to take any action by a final
opinion and order of the Assistant Secretary shall file with FE, within
thirty (30) days after the requirement or authorization becomes
effective, a notice, under oath, that such requirement has been complied
with or such authorization accepted or otherwise acted upon, unless
otherwise specified in the order.
10 CFR 590.407 Reports of changes.
Any person authorized to import or export natural gas has a
continuing obligation to give the Assistant Secretary written
notification, as soon as practicable, of any prospective or actual
changes to the information submitted during the application process upon
which the authorization was based, including, but not limited to,
changes to: the parties involved in the import or export arrangement,
the terms and conditions of any applicable contracts, the place of entry
or exit, the transporters, the volumes accepted or offered, or the
import or export price. Any notification filed under this section shall
contain the FE docket number(s) to which it relates. Compliance with
this section does not relieve an importer or exporter from
responsibility to file the appropriate application to amend a previous
import or export authorization under this part whenever such changes are
contrary to or otherwise not permitted by the existing authorization.
10 CFR 590.407 Subpart E -- Applications for Rehearing
10 CFR 590.501 Filing.
(a) An application for rehearing of a final opinion and order,
conditional order, or emergency interim order may be filed by any party
aggrieved by the issuance of such opinion and order within thirty (30)
days after issuance. The application shall be served on all parties.
(b) The application shall state concisely the alleged errors in the
final opinion and order, conditional order, or emergency interim order
and must set forth specifically the ground or grounds upon which the
application is based. If an order is sought to be vacated, reversed, or
modified by reason of matters that have arisen since the issuance of the
final opinion and order, conditional order, or emergency interim order,
the matters relied upon shall be set forth with specificity in the
application. The application shall also comply with the filing
requirements of 590.103.
10 CFR 590.502 Application is not a stay.
The filing of an application for rehearing does not operate as a stay
of the Assistant Secretary's order, unless specifically ordered by the
Assistant Secretary.
10 CFR 590.503 Opinion and order on rehearing.
Upon application for rehearing, the Assistant Secretary may grant or
deny rehearing or may abrogate or modify the final opinion and order,
conditional order, or emergency interim order with or without further
proceedings.
10 CFR 590.504 Denial by operation of law.
Unless the Assistant Secretary acts upon the application for
rehearing within thirty (30) days after it is filed, it is deemed to be
denied. Such denial shall constitute final agency action for the
purpose of judicial review.
10 CFR 590.505 Answers to applications for rehearing.
No answers to applications for rehearing shall be entertained. Prior
to the issuance of any final opinion and order on rehearing, however,
the Assistant Secretary may afford the parties an opportunity to file
briefs or answers and may order that a conference, oral presentation, or
trial-type hearing be held on some or all of the issues presented by an
application for rehearing.
10 CFR 590.505 Pt. 595
10 CFR 590.505 PART 595 -- CERTIFICATION OF USE OF NATURAL GAS TO
DISPLACE FUEL OIL
Sec.
595.1 Purpose and scope.
595.2 Definitions.
595.3 Eligibility for certification.
595.4 Certification of eligible use.
595.5 Limitations of applicability.
595.6 Application for certification and recertification.
595.7 Reporting requirements.
595.8 Termination of eligibility.
595.9 Request for reconsideration.
Authority: Secs. 102 (3) and (8), 501(e), 644, Pub. L. 95-91, 91
Stat. 567, 568, 588, 599; 42 U.S.C. 7112(3), (8), 7191(e), 7254; E.O.
12009, 42 FR 46267.
Source: 44 FR 47922, Aug. 16, 1979, unless otherwise noted.
10 CFR 595.1 Purpose and scope.
The extensive reliance of the United States on imported crude oil and
petroleum products has severe detrimental effects on the security of our
energy supplies, balance of payments, and economic well-being. The
national interest requires that every practical step be taken to
restrain imports quickly. In addition, because of the current shortage
of middle distillates as a result of crude oil shortfalls, it is
necessary to restrain consumption of that fuel oil in order to rebuild
stocks for next winter's heating season.
The use of natural gas is one vehicle for displacing fuel oils. The
regulations in this part will facilitate oil displacement by
establishing a procedure whereby the Administrator may certify to the
FERC that use of natural gas, purchased by an end-user for its own
consumption, will displace fuel oil. ERA certification is a
precondition to obtaining interstate transportation of fuel oil
displacement gas in accordance with FERC authorizing procedures in 18
CFR part 284, subpart F, or any other FERC rules or orders requiring ERA
certification pursuant to this part.
10 CFR 595.2 Definitions.
For the purpose of this part:
Administrator means the Administrator of ERA or his or her delegate.
End-user means any person, including a subsidiary or affiliated
entity of that person, who purchases natural gas for consumption in that
person's facilities and not for resale.
Eligible seller means any willing seller of natural gas.
Eligible use means that use of natural gas certified by the
Administrator pursuant to 595.4.
ERA means the Economic Regulatory Administration of the Department of
Energy.
FERC means the Federal Energy Regulatory Commission.
Fuel oil means middle distillates or residual fuel oils including 1
and 2 heating oils, kerosene-base jet fuel, 4, 5, and 6 fuel oils;
crude oil burned directly as a fuel; and blends of any of the above.
10 CFR 595.3 Eligibility for certification.
Any end-user who has purchased or is in the process of contracting to
purchase natural gas directly from an eligible seller to displace fuel
oil may apply for certification under this part if:
(a) The natural gas will be used only to displace fuel oil which
would otherwise be consumed in the end-user's facilities and not coal;
(b) The displaced fuel oil will not be used to displace coal in any
of the end-user's facilities;
(c) The natural gas to be certified will be transported by an
interstate pipeline company; and
(d) The authorization for the transportation of the natural gas to be
certified derives from the procedures in 18 CFR part 284, subpart F or
any other FERC rule or order requiring ERA certification pursuant to
this part.
10 CFR 595.4 Certification of eligible use.
The Administrator may certify that a purchase or proposed purchase of
natural gas is for an eligible use if the end-user demonstrates, upon
proper application that: (a) The natural gas will be used to displace
fuel oil which would otherwise be consumed in the end-user's facilities
during the term of the certification; (b) the natural gas will not be
used by the end-user to displace coal in its facilities; and (c) the
fuel oil displaced will not be used by the end-user to displace coal in
its facilities. The initial certification will be effective for up to
one year, unless the FERC authorizing procedures for the transportation
of the certified gas require a shorter period of time. The
Administrator also may issue a recertification, upon proper application
within 60 days prior to the expiration of the initial certification or a
previous recertification, which will be effective for up to one year,
unless the FERC authorizing procedures for the transportation of the
certified gas require a shorter period of time.
10 CFR 595.5 Limitations of applicability.
The Administrator may determine to limit applicability of the
regulations of this part to certain end-users or specific geographic
areas when such limitation is in the public interest. In making a
determination whether to establish any limitations, the Administrator
may consider, among other criteria, the impact of certification or
recertification on air quality, on regional or local energy supply, on
refinery output and regional availability of petroleum products in light
of refinery capabilities, on facilitating and advancing coal conversion
programs, and on system supplies of natural gas.
10 CFR 595.6 Application for certification and recertification.
(a) An end-user may apply for certification or recertification of an
eligible use by filing a written application which must contain the
following information:
(1) The company name, mailing address, and telephone number of the
end-user, and the name of a person to contact regarding the application;
(2) The name and location of each facility to which the natural gas
will be delivered and the volumes of natural gas to be received by each;
(3) An affidavit, signed by a responsible official representing the
end-user which states:
(i) An estimate of the volumes, type, and sulfur content of the fuel
oil which will be displaced by the natural gas at each of the end-user's
facilities;
(ii) That any natural gas certified by the Administrator will be used
by the end-user only to displace fuel oil and not to displace coal; and
(iii) That the end-user will not use the displaced fuel oil to
displace coal in any of its facilities;
(4) The names and addresses of the eligible sellers with whom the
end-user has entered into gas purchase and the interstate pipeline and
local distribution companies with which the end-user has entered into
transportation contracts or with whom the end-user is negotiating those
contracts;
(5) A statement as to whether the applicant expects any
transportation of the natural gas pursuant to 18 CFR part 284, subpart
F, to be either self-implementing or to require a FERC transportation
certificate of public convenience and necessity or whether the
transportation of the oil displacement gas is authorized by another FERC
rule or order;
(6) The FERC docket number and the date of filing of any application
for a transportation certificate which has been filed with the FERC
regarding this oil displacement gas;
(b) The Administrator may request any additional information he deems
necessary.
(c) The applicant must notify ERA in writing if any of the above
information is later determined to be incorrect or changed.
(d) An original and fifteen copies of the application should be
submitted to:
Office of Petroleum Operations, Economic Regulatory Administration,
Room 4126, 2000 M Street, NW., Washington, D.C. 20461.
(e) Notice of receipt of valid applications for certification or
recertification will be published in the Federal Register within a
reasonable time. An opportunity for public comment will be permitted
for ten (10) calendar days from the date of publication, including an
opportunity to request an oral presentation. After close of the comment
period, the Administrator will review the application and any comments
and make a decision whether or not to issue a certification or
recertification. Such decision will be published in the Federal
Register, and sent to the FERC, the applicant, and any person filing
comments. The Administrator may certify an eligible use prior to the
close of the comment period, if the need for certification is
demonstrated to be of sufficient public interest to warrant expedited
treatment.
10 CFR 595.7 Reporting requirements.
Each end-user receiving an ERA certification or recertification shall
submit a statement to ERA by the fifteenth day of each month after the
first month during the term of the certification or recertification,
which provides the following information for the preceding month:
(a) The total volume of natural gas obtained and used at each
facility pursuant to the ERA certification to displace fuel oil;
(b) The total volume(s) and type(s) (including sulfur content) of
fuel oil displaced at each facility by natural gas obtained pursuant to
the ERA certification.
Monthly statements should contain the ERA certification docket
number. Statements should be mailed to: Office of Petroleum
Operations, Economic Regulatory Administration, Room 4126, 2000 M
Street, NW., Washington, D.C. 20461.
10 CFR 595.8 Termination of eligibility.
The Administrator may terminate a certification or recertification of
an eligible use whenever the Administrator determines, after notice and
opportunity to be heard, that: (a) The natural gas is no longer being
used for an eligible use as defined in 595.02; or (b) termination is
in the public interest. Upon making the determination to terminate a
certification or recertification, the Administrator will notify FERC
immediately and request that FERC take appropriate action to terminate
any related transportation authorization.
10 CFR 595.9 Request for reconsideration.
(a) Any applicant whose application for certification or
recertification has been denied, or whose certification or
recertification has been terminated, may request reconsideration within
30 days of the date of the denial or termination. The request should
contain a statement of facts and reasons supporting reconsideration and
should be submitted in writing to: Office of Petroleum Operations,
Economic Regulatory Administration, Room 4126, 2000 M Street, NW.,
Washington, D.C. 20461.
(b) If the Administrator fails to take action on the request for
reconsideration within 30 days, the request is deemed denied.
(c) An applicant has not exhausted his administrative remedies until
a request for reconsideration has been filed and acted upon or deemed
denied.
10 CFR 595.9 SUBCHAPTER H -- ASSISTANCE REGULATIONS
10 CFR 595.9 Pt. 600
10 CFR 595.9 PART 600 -- FINANCIAL ASSISTANCE RULES
10 CFR 595.9 Subpart A -- General
Sec.
600.1 Purpose and scope.
600.2 Applicability.
600.3 Definitions.
600.4 Deviations.
600.5 Selection of award instrument.
600.6 Discretionary awards.
600.7 Eligibility.
600.8 Small and disadvantaged business participation.
600.9 Solicitation.
600.10 Form and content of applications and preapplications.
600.11 Intergovernmental review.
600.12 Generally applicable requirements.
600.13 Application deadlines.
600.14 Unsolicited applications.
600.15 Notice of Program Interest.
600.16 Objective merit review.
600.17 Conflict of interest.
600.18 Authorized uses of information.
600.19 Application evaluation and selection.
600.20 Legal authority and effect of an award.
600.21 Contents of award.
600.22 Recipient acknowledgment of award.
600.23 Notification to unsuccessful applicants.
600.24 Maximum DOE obligation.
600.25 Access to records.
600.26 Disputes and appeals.
600.27 Debarment and suspension.
600.28 Noncompliance.
600.29 Suspension and termination.
600.30 Responsible applicant.
600.31 Funding.
600.32 Calculation of award.
600.33 Patents, data, and copyrights.
600.34 New restrictions on lobbying.
10 CFR 595.9 Subpart B -- Grants
600.100 Scope and applicability.
600.101 Definitions.
600.102 Grant applications.
600.103 Cost determinations.
600.105 Special restrictive conditions of award.
600.107 Cost sharing.
600.109 Financial management systems.
600.110 Cash depositories.
600.111 Bonding and insurance.
600.112 Payment.
600.113 Program income.
600.114 Budget and project revisions.
600.115 Performance reports.
600.116 Financial reports.
600.117 Property management.
600.119 Procurement under grants and subgrants.
600.120 Audit requirements.
600.121 Noncompliance.
600.123 Closeout.
600.124 Record retention requirements.
600.125 Special provisions for Small Business Innovation Research
Grants.
10 CFR 595.9 Subpart C -- Cooperative Agreements
600.200 Scope and applicability.
600.201 Definitions.
600.202 Selection of cooperative agreement as financial assistance
instrument.
600.203 Application budgetary information.
600.204 Instrument conversion.
600.205 Application, funding, and administrative requirements.
600.206 Cost sharing.
600.207 Patents, data, and copyrights.
10 CFR 595.9 Subpart D -- Audits of State and Local Governments
600.300 Scope and applicability.
600.301 Definitions.
600.302 Policy.
600.303 Scope of audit.
600.304 Frequency of audit.
600.305 Internal control and compliance reviews.
600.306 Subrecipients.
600.307 Relation to other audit requirements.
600.308 Cognizant agency responsibilities.
600.309 Illegal acts or irregularities.
600.310 Audit reports.
600.311 Audit resolution.
600.312 Audit workpapers and reports.
600.313 Audit costs.
600.314 Sanctions.
600.315 Auditor selection.
600.316 Small and minority audit firms.
600.317 Reporting.
10 CFR 595.9 Subpart E -- Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments
600.400 Purpose and scope of this subpart.
600.401 Scope of 600.400 through 600.405.
600.402 Definitions.
600.403 Applicability.
600.404 Effect on other issuances.
600.405 Additions and Exceptions.
600.410 Forms for applying for grants.
600.411 State plans.
600.412 Special grant or subgrant conditions for ''high risk''
recipients.
600.420 Standards for financial management systems.
600.421 Payment.
600.422 Allowable costs.
600.423 Period of availability of funds.
600.424 Matching or Cost sharing.
600.425 Program income.
600.426 Non-Federal audit.
600.430 Changes.
600.431 Real property.
600.432 Equipment.
600.433 Supplies.
600.434 Copyrights.
600.435 Subawards to debarred and suspended parties.
600.436 Procurement.
600.437 Subgrants.
600.440 Monitoring and reporting program performance.
600.441 Financial reporting.
600.442 Retention and access requirements for records.
600.443 Enforcement.
600.444 Termination for convenience.
600.450 Closeout.
600.451 Later disallowances and adjustments.
600.452 Collection of amounts due.
Appendix A to Part 600 -- Generally Applicable Requirements
Appendix B to Part 600 -- Audit Report Distributees
Authority: Secs. 644 and 646, Pub. L. 95-91, 91 Stat. 599, (42
U.S.C. 7254 and 7256); Pub. L. 97-258, 96 Stat. 1003-1005 (31 U.S.C.
6301-6308), unless otherwise noted.
10 CFR 595.9 Subpart A -- General
Source: 47 FR 44083, Oct. 5, 1982, unless otherwise noted.
Editorial Note: Nomenclature changes to this part appear at 53 FR
5261, Feb. 22, 1988.
10 CFR 600.1 Purpose and scope.
The purposes of this part are to implement the Federal Grant and
Cooperative Agreement Act, Pub. L. 97-258 (31 U.S.C. 6301 -- 6308), and
to establish uniform policies and procedures for the award and
administration of DOE grants and cooperative agreements. This subpart
(subpart A) sets forth the policies and procedures applicable to both
grants and cooperative agreements.
10 CFR 600.2 Applicability.
(a) Except as otherwise provided by Federal statute or program rule,
this part applies to any unsolicited application received and any
solicitation issued on or after the effective date of this part, and to
any new, continuation, or renewal award (and any subsequent subaward)
with a beginning date on or after the effective date of this part.
(b) Any new, continuation, or renewal award (and any subsequent
subaward) shall comply with any applicable requirement of a Federal
statute or a Federal rule if the award is made on or after the effective
date of the applicable statutory or regulatory requirement. Unless
otherwise specified by DOE, any new, continuation, or renewal award (and
any subsequent subaward) shall comply with any applicable Office of
Management and Budget (OMB) Circular or governmentwide guidance in
effect as of the date of such award.
(c) A financial assistance recipient performing research,
development, or related activities involving the use of human subjects
shall comply with DOE regulations in 10 CFR part 745 ''Protection of
Human Subjects'' and any additional provisions which may be included in
the Special Terms and Conditions of the award.
(d) The disputes and appeals procedures set forth in 600.26 shall
apply to any new, continuation or renewal award made after the effective
date of this paragraph, and to any active, expired, terminated, or
closed-out grant or cooperative agreement provided, however, a final
determination (see, 600.26(a)) in any dispute is issued on or after the
effective date of this paragraph. If requested in writing by the
appellant or appellants, the Financial Assistance Appeals Board shall
have jurisdiction, as provided in 600.26(d), to decide an appeal from a
final determination issued not more than 90 days before the effective
date of this paragraph.
(e) The provisions of the Single Audit Act of 1984 (Pub. L. 98-502)
and OMB Circular A-128, as implemented in subpart D of this part, apply
to fiscal years of State governments, local governments, or Indian
tribes that begin after December 31, 1984.
(f) Financial assistance to foreign governments shall be governed by
this part and the administrative requirements and cost principles
applicable to State and local governments, to the extent appropriate.
Foreign organizations shall likewise be covered by this part and the
administrative requirements and cost principles applicable to their
respective recipient type, to the extent appropriate. Any deviation
from the requirements of this part and the applicable OMB circulars with
respect to a foreign entity(ies) is not a deviation requiring approval
in accordance with the procedures of 600.4 of this part.
(g) OMB Circulars. (1) The following OMB Circulars apply as provided
in paragraphs (a) and (b) of this section and the sections of this part
where specific reference to any of the material is made:
(i) OMB Circular A-110, Grants and Agreements with Institutions of
Higher Education, Hospitals, and Other Nonprofit Organizations (41 FR
32016, July 30, 1976).
(ii) OMB Circular A-21, Cost Principles Applicable to Grants,
Contracts and Other Agreements with Institution of Higher Education (44
FR 12368, Mar. 6, 1979 as amended by 47 FR 333658, Aug. 3, 1982).
(iii) OMB Circular A-87, Cost Principles Applicable to Grants,
Contracts and Other Agreements with State and Local Governments (46 FR
9548, Jan. 28, 1981).
(iv) OMB Circular A-122, Cost Principles Applicable to Grants,
Contracts and Other Agreements with Nonprofit Organizations (45 FR
46022, July 8, 1980 as amended by 49 FR 18276, April 27, 1984).
(v) OMB Circular A-128, Audits of State and Local Governments (50 FR
19114, May 6, 1985).
(2) Copies of the OMB publications listed in paragraph (g)(1) may be
obtained from the Office of Management and Budget, Office of
Administration, Publications Unit, Washington, DC 20503 or from the
cognizant administering office.
(47 FR 44083, Oct. 5, 1982, as amended at 48 FR 29184, June 24, 1983;
48 FR 34404, July 28, 1983; 50 FR 42356, Oct. 18, 1985; 51 FR 4297,
Feb. 4, 1986; 54 FR 23959, June 5, 1989; 56 FR 3, Jan. 2, 1992)
Effective Date Note: At 57 FR 3, Jan. 2, 1992, 600.2 was amended
by redesignating paragraphs (c), (d), (e) and (f) as (d), (e), (f) and
(g) respectively, and adding a new paragraph (c), effective February 3,
1992.
10 CFR 600.3 Definitions.
The following definitions are provided for purposes of this part --
Ad hoc committee means a temporary committee established to perform a
single, specific short-term task, after which the committee disbands.
Applicant means any individual, organization, agency, or entity which
files a written application or preapplication for financial assistance
with DOE or with a recipient (i.e. for a subaward).
Application means a written request for financial assistance.
Approved budget means a budget and any revision thereto which has
been approved in writing by DOE for carrying out the purposes of a
project.
Assistance means the transfer of money, property, services or
anything of value to a recipient to accomplish a public purpose of
support or stimulation authorized by Federal statute.
Award means the written document executed by a DOE Contracting
Officer, after an application is approved, which contains the terms and
conditions for providing financial assistance to the recipient.
Awarding party means DOE or a recipient who makes a subaward.
Budget means the applicant's financial expenditure plan for carrying
out the proposed project. The budget shall include any cost sharing
which is required by statute, rule, or the award.
Budget period means the interval of time, specified in the award,
into which a project is divided for budgeting and funding purposes.
Continuation award means an award for a succeeding or subsequent
budget period after the initial budget period of either an approved
project period or renewal thereof.
Contract means a written procurement contract with a third party for
the acquisition of property or services under a financial assistance
award.
Contracting Officer means the DOE official authorized to execute
awards on behalf of DOE and who is responsible for the business
management and non-program aspects of the financial assistance process.
Cooperative agreement means a financial assistance instrument used by
DOE to transfer money or property when the principal purpose of the
transaction is accomplishment of a public purpose of support or
stimulation authorized by Federal statute and substantial involvement is
anticipated between DOE and the recipient during performance of the
contemplated activity. For purposes of this part, the term
''cooperative agreement'' does not include nonfinancial assistance.
Cost sharing refers to the share of project costs required to be
contributed by the recipient. Depending on the source and nature of the
requirement, terms such as matching and cost participation may also be
used to denote cost sharing.
Department or DOE means the United States Department of Energy.
Director means the Director, Procurement and Assistance Management
Directorate, DOE.
Discretionary financial assistance means financial assistance
provided under a Federal statute which authorizes DOE to select the
recipient and the project to be supported and to determine the amount to
be awarded.
Extension means an amendment of an award, which would otherwise
expire, to provide additional time, and if appropriate, additional funds
for completion of project activities.
Federally recognized Indian tribal government means the governing
body or a governmental agency of any Indian tribe, band, nation or other
organized group or community (including any Native village as defined in
section 3 of the Alaska Native Claims Settlement Act, 85 Stat. 688).
Field readers means persons with expertise to evaluate a specific
application or category of applications. Field readers may act as
independent individuals or as members of a group with the review
generally being done by mail.
Financial assistance means the transfer of money or property to a
recipient or subrecipient to accomplish a public purpose of support or
stimulation authorized by Federal statute. For purposes of this part,
financial assistance instruments are grants and cooperative agreements,
and subawards.
Grant means a financial assistance instrument used by DOE to transfer
money or property when the principal purpose of the transaction is
accomplishment of a public purpose of support or stimulation authorized
by Federal statute and no substantial involvement between DOE and the
grantee during the performance of the contemplated activity is
anticipated. For purposes of this part, the term ''grant'' does not
include nonfinancial assistance.
Head of a Contracting Activity (HCA) means a DOE official with senior
management authority for the award and administration of financial
assistance instruments within one or more DOE organizational elements.
Local government means a local unit of government including
specifically a county, municipality, city, town, township, local public
authority, school district, special district, intrastate district,
council of governments (whether or not incorporated as a nonprofit
corporation under State law), sponsor group representative organization
(as defined in 7 CFR 620.2, 40 FR 12472, Mar. 19, 1975), any other
regional or interstate government entity, or any agency or
instrumentality of a local government exclusive of local institutions of
higher education and hospitals.
Nonprofit organization means any corporation, trust, foundation, or
institution which is entitled to exemption under section 501(c)(3) of
the Internal Revenue Code, or which is not organized for profit and no
part of the net earnings of which inure to the benefit of any private
shareholder or individual (except that the definition of ''nonprofit
organization'' in the patent clause of 600.33(b)(1) shall apply for
purposes of the applicability of that clause).
Objective merit review means a thorough, consistent and independent
examination of applications based on pre-established criteria by persons
knowledgeable in the field of endeavor for which support is requested.
This sort of review is conducted to provide advice to selecting
officials based on an evaluation of the scientific or technical merit.
The reviewers themselves may be engaged in comparable efforts in
institutions or organizations similar to the applicant's or have in the
past been directly involved in such activities.
OMB means the Office of Management and Budget.
Project means the set of activities described in an application,
State plan, or other document that is approved by DOE for financial
assistance (whether such financial assistance represents all or only a
portion of the support necessary to carry out those activities).
Project period means the total period of time indicated in an award
during which DOE expects to provide financial assistance. A project
period may consist of one or more budget periods and may be extended by
DOE.
Recipient means the organization, individual, or other entity that
receives an award from DOE and is financially accountable for the use of
any DOE funds or property provided for the performance of the project,
and is legally responsible for carrying out the terms and conditions of
the award.
Renewal award means an award which extends a project period by adding
one or more additional budget periods and which makes an award of DOE
financial assistance for the first budget period of the extended project
period.
Research means any scientific or engineering activity which (1)
constitutes a systematic, intensive study directed specifically toward
greater knowledge or understanding of the subject studied and
contributes to a continuing flow of new knowledge; or (2) is directed
toward applying new knowledge to meet a recognized need; and/or (3)
applies such knowledge toward the production of useful methods,
including design, development and improvement of prototypes and new
processes to meet established requirements.
Responsible official means the Head of a Departmental Element or a
Program Assistant Secretary. These individuals are responsible for the
system of objective merit review of financial assistance applications
funded by their program or department element. The functions associated
with the objective merit review may be delegated, but only to the level
specified in the relevant sections of this part. The responsible
official, however, remains ultimately responsible for the execution of
these functions.
Secretary means the Secretary of the United States Department of
Energy or designee.
Small business means a business concern, including its affiliates,
which is independently owned and operated, is not dominant in its field
of operation, and can qualify under the criteria concerning number of
employees, average annual receipts, and other criteria as prescribed by
the Small Business Administration (except that the definition of ''small
business'' in the patent clause of 600.33(b)(1) shall apply for
purposes of the applicability of that clause).
Socially and economically disadvantaged individuals means individuals
who have been subjected to racial or ethnic prejudice or cultural bias
because of their identity as a member of a group without regard to their
individual qualities and/or those whose ability to compete in the free
enterprise system has been impaired due to diminished capital and credit
opportunities as compared to others in the same business area who are
not socially disadvantaged. Such individuals include Black Americans,
Hispanic Americans, Native Americans, Asian-Pacific Americans, and other
specified minorities, or any other individual found to be disadvantaged
by the Small Business Administration under section 8(a) of the Small
Business Act.
Socially and economically disadvantaged small business concern means
any small business concern which is at least 51 percent owned by one or
more socially and economically disadvantaged individuals, or, in the
case of any publicly owned business, at least 51 percent of the stock of
which is owned by one or more socially and economically disadvantaged
individuals, and whose management and daily business operations are
controlled by one or more such individuals.
Solicitation means a document which requests the submission of
applications and which describes program objectives, recipient and
project eligibility requirements, evaluation criteria, award terms and
conditions, and other information about the financial assistance
opportunity.
Standing committee means a long-term committee established to review
applications and may be used when required by legislation or when
significant numbers of applications on specific topics are received
periodically.
State or State government means any of the several States of the
United States, the District of Columbia, the Commonwealth of Puerto
Rico, any territory, possession or trust territory of the United States,
or any agency or instrumentality of a State. The term does not include
local governments, State hospitals, or State institutions of higher
education.
State plan means a document required by statute to be submitted by a
State in order to demonstrate compliance with the legal prerequisites
for an award of nondiscretionary financial assistance.
Subaward means an award of financial assistance by a recipient to an
eligible subrecipient when specifically authorized by statute or program
rule. The term does not include a contract under a financial assistance
award.
Subrecipient means the organization, individual, or other entity that
receives a subaward.
Terms and conditions means the rights and obligations of the awarding
party and the recipient or subrecipient set forth in a statute, this
part, other rules, or otherwise set forth or incorporated by reference
in the award or subaward document.
(47 FR 44083, Oct. 5, 1982, as amended at 51 FR 39366, Oct. 28, 1986;
53 FR 8045, Mar. 11, 1988; 54 FR 41945, Oct. 13, 1989)
10 CFR 600.4 Deviations.
(a) Definitions. (1) Deviation means the use of any policy,
procedure, form, standard, term, or condition which varies from a
requirement of this part, or the waiver of any such requirement, unless
such use or waiver is authorized by Federal statute. The use of
optional or discretionary provisions of this part, including special
restrictive conditions used in accordance with 600.105 and 600.412,
are not deviations. The waiver provisions of the patent requirements of
600.33 are not subject to the requirements of this section and shall be
administered in accordance with 41 CFR part 9-9.
(2) Single-case deviation means a deviation which applies to one
financial assistance transaction and one applicant, recipient, or
subrecipient only.
(3) Class deviation means a deviation which applies to more than one
financial assistance transaction, applicant, recipient, or subrecipient.
(b) General. The DOE officials specified in paragraph (c) of this
section may authorize a deviation only upon a written determination that
the deviation is --
(1) Necessary to achieve program objectives;
(2) Necessary to conserve public funds;
(3) Otherwise essential to the public interest; or
(4) Necessary to achieve equity.
(c) Approval procedures. (1) A deviation may be requested by DOE
staff, an applicant for an award or subaward, a recipient, or a
subrecipient. Such a request must be in writing and must be submitted
to the responsible DOE Contracting Officer. An applicant for a subaward
or a subrecipient shall submit any such request through the recipient.
(2) Except as provided in paragraph (c)(3) of this section --
(i) A single-case deviation may be authorized by the responsible Head
of Contracting Activity (HCA). Any proposed single-case deviation from
the requirements of 600.33 or 600.207 concerning patents or technical
data shall be referred to the General Counsel or designee for review and
concurrence prior to submission to the HCA.
(ii) A class deviation may be authorized by the Director or his or
her designee.
(3) Whenever the approval of OMB, other Federal agency, or other DOE
office is required to authorize a deviation, the proposed deviation must
be submitted to the Director or designee for concurrence prior to
submission to the authorizing official. Any proposed class deviation
from the requirements of 600.33 or 600.207 concerning patents or
technical data shall be forwarded through the Assistant General Counsel
for Patents.
(d) Notice. Whenever a request for a class deviation is approved,
DOE shall publish a notice in the Federal Register at least 15 days
before the class deviation becomes effective. Whenever a class
deviation is contained in a proposed program rule, the preamble to the
proposed rule shall describe the purpose and scope of the deviation.
(e) Subawards. A recipient may use a deviation in a subaward only
with the prior written approval of a DOE Contracting Officer. If prior
approval is not obtained, the use of a deviation in a subaward shall be
a violation of the terms and conditions of the DOE award.
(47 FR 44083, Oct. 5, 1982, as amended at 53 FR 5261, Feb. 22, 1988;
53 FR 8045, Mar. 11, 1988)
10 CFR 600.5 Selection of award instrument.
If DOE has administrative discretion in the selection of the award
instrument, the DOE determination as to whether a program is principally
one of procurement or assistance pursuant to Pub. L. 95-224 shall be
based on the purpose of the program and the authorizing statute. This
determination shall be either made or reviewed at a policy level within
DOE. DOE shall review individual transactions that differ from this
determination for consistency with Pub. L. 95-224. A grant or
cooperative agreement shall be the appropriate instrument, in accordance
with this part, when the principal purpose of the relationship is the
transfer of money or property to accomplish a public purpose of support
or stimulation authorized by Federal statute. DOE shall determine
whether a grant or a cooperative agreement is the appropriate instrument
in accordance with Pub. L. 95-224 and this part. DOE shall limit
involvement between itself and the recipient in the performance of a
project to the minimum necessary to achieve DOE program objectives.
10 CFR 600.6 Discretionary awards.
(a) DOE may make new discretionary financial assistance awards on the
basis of:
(1) Applications submitted in response to a financial assistance
solicitation (See 600.9);
(2) Unsolicited applications satisfying the selection criteria of
600.14(e)(1);
(3) Applications submitted in response to a Program Opportunity
Notice (PON) (see 48 CFR 917.72 for the submission, evaluation, and
selection procedures to be used for a PON. When it is anticipated that a
PON will result in a financial assistance award(s), the procedures in 48
CFR 917.72 shall be supplemented by the provisions set forth in 600.9
and 600.10 to cover those solicitation and application requirements
which are specific to financial assistance and for which there is no
alternative coverage in 48 CFR 917.72; e.g., presubmission reviews and
clearances, preaward assurances, etc.);
(4) Applications submitted in response to a Program Research and
Development Announcement (see 48 CFR 917.73) if, after an application is
selected for award, DOE determines that a grant or cooperative agreement
is the appropriate award instrument;
(5) An application for an award to be made on a noncompetitive basis
under 600.7(b)(2); or
(6) Unsolicited applications which do not satisfy the selection
criteria of 600.14(e)(1)(ii) if such applications do satisfy one or
more of the selection criteria of 600.7(b)(2)(i).
(b) DOE may make renewal discretionary financial assistance awards on
the basis of:
(1) Applications submitted in response to a financial assistance
solicitation; or
(2) An application from an incumbent recipient if the award has been
justified in accordance with 600.7(b)(2).
(c) DOE shall solicit applications for discretionary financial
assistance in a manner which provides for the maximum amount of
competition feasible.
(53 FR 12138, Apr. 13, 1988)
10 CFR 600.7 Eligibility.
(a) General. The eligibility of recipients and subrecipients and of
projects for DOE financial assistance shall be determined in accordance
with the applicable Federal statute or program rule, and paragraphs (b)
and (c) of this section.
(b)(1) Restricted eligibility. If DOE restricts eligibility in a
solicitation or program rule to less than all otherwise eligible
applicants under paragraph (a) of this section, an explanation of why
the restriction of eligibility is considered necessary shall be included
in the solicitation or program rule. If the aggregate amount of DOE
funds available for award under such a solicitation other than a program
rule exceeds $250,000, such restriction of eligibility shall be
supported by a written determination initiated by the responsible
program office, which has been:
(i) Approved by the responsible program Assistant Secretary or his or
her designee, who shall be at an organizational level not less than two
levels above that of the project officer, and the Contracting Officer
for the awarding office issuing the solicitation and
(ii) Concurred in by local legal counsel.
If the aggregate amount of DOE funds available for award is $250,000
or less, the written determination is to be approved by the Head of
Contracting Activity (HCA) for the awarding office that will be issuing
the solicitation and the Contracting Officer. Concurrence may be waived
for a particular award or class of awards of $250,000 or less by local
legal counsel, if they so elect.
(2) Noncompetitive financial assistance. DOE may award a grant or
cooperative agreement on a noncompetitive basis (other than as a result
of the acceptance of an unsolicited application meeting the selection
criteria of 600.14(e)(1)(ii) or an application for a continuation award
in accordance with 600.106(b)) only if the application satisfies one or
more of the selection criteria in paragraph (b)(2)(i) of this section
and is supported by a written determination of noncompetitive financial
assistance prepared in accordance with the provisions of paragraphs
(b)(2) (ii) and (iii) of this section. In addition, an announcement of
the intent to make a noncompetitive financial assistance award and an
explanation of why a noncompetitive financial assistance award is
necessary shall be published in the Federal Register at least 14
calendar days prior to making an award. Public comments (or inquiries)
to this announcement must be resolved by the DOE office issuing such
announcement. Any such noncompetitive financial assistance is not
subject to the solicitation requirements of 600.9.
(i) Criteria for justifying noncompetitive financial assistance. In
order for a noncompetitive award to be made under the authority of
paragraph (b)(2) of this section, it must satisfy one or more of the
following selection criteria in addition to the types of factors listed
in 600.14(d):
(A) The activity to be funded is necessary to the satisfactory
completion of, or is a continuation or renewal of, an activity presently
being funded by DOE or another Federal agency, and for which competition
for support would have a significant adverse effect on continuity or
completion of the activity.
(B) The activity(ies) is (are) being or would be conducted by the
applicant using its own resources or those donated or provided by third
parties; however, DOE support of that activity would enhance the public
benefits to be derived and DOE knows of no other entity which is
conducting or is planning to conduct such an activity(ies).
(C) The applicant is a unit of government and the activity to be
supported is related to performance of a governmental function within
the subject jurisdiction, thereby precluding DOE provision of support to
another entity.
(D) The applicant has exclusive domestic capability to perform the
activity successfully, based upon unique equipment, proprietary data,
technical expertise, or other such unique qualifications.
(E) The applicant implements an agreement between the United States
Government and a foreign government to fund a foreign applicant.
(F) Time constraints associated with a public health, safety, or
welfare or national security requirement preclude competition.
(G) A specific recipient has been statutorily designated.
(H) The responsible Assistant Secretary, with the approval of the
Director, determines that a noncompetitive award is in the public
interest. This authority may not be delegated.
(ii) Documentation requirements. A determination of noncompetitive
financial assistance (normally prepared by the responsible program
official (project officer)) is required to explain the basis for the
proposed noncompetitive award. The determination, the purpose of which
is to justify funding on a noncompetitive basis, shall be placed in the
award file and must, as a minimum, include the following information:
(A) Name of the sponsoring program office and the awarding office,
the type of award proposed (grant or cooperative agreement), and the
proposed recipient.
(B) A description of the nature of the financial assistance to be
provided (e.g. research grant, conference grant, etc.), the amount and
availability of DOE funds required, any cost sharing proposed or
required, and the statutory authority for the proposed award.
(C) A statement of whether the application was solicited or
unsolicited and the nature of any significant preapplication contact
between the applicant and the Department. If received on an unsolicited
basis, a statement of why the application does not meet the selection
criteria of 600.14(e)(1).
(D) To the extent relevant, a discussion of the programmatic
evaluation conducted and the results of that evaluation, including the
overall merit and relevance to the DOE mission, the anticipated
objectives and probability of success in meeting them, the quality of
the applicant's personnel and facilities, and the appropriateness and
adequacy of the proposed budget.
(E) A brief description of the public purpose of support or
stimulation to be served by the proposed award and, in nontechnical
terms, identification of any particular significance or specialized
character of the activity proposed to be funded.
(F) A statement of which one(s) of the criteria in paragraph
(b)(2)(i) of this section is (are) being relied upon to justify the
action and an explanation in general, nontechnical detail why each such
criterion applies.
(iii) Approval requirements. Except as provided below, all
determinations of noncompetitive financial assistance under paragraph
(b)(2) of this section must be:
(A) Approved, prior to award, by the initiating program official
(project officer), the responsible program Assistant Secretary or his or
her designee, who shall be not less than two organizational levels above
that of the project officer, and the Contracting Officer for the
awarding office issuing the solicitation, and
(B) Concurred in by local legal counsel.
Where the amount of DOE funds is $100,000 or less for a
noncompetitive financial assistance award under any program for which
the HCA has been formally assigned cognizance, the determination shall
be approved by the HCA and the Contracting Officer. Concurrence for a
particular award or class of awards of $100,000 or less may be waived by
local legal counsel, if they so elect.
(c) DOE employees. (1) An applicant individual who is a former DOE
employee or an applicant organization that is substantially owned or
controlled by one or more former DOE employees may be declared
ineligible for DOE financial assistance if such applicant does not
comply with the requirements of 10 CFR part 1010, subpart C.
(2) Except as provided in paragraph (c)(3) of this section, a current
DOE employee and a business concern or organization substantially owned
or controlled by one or more current DOE employees are not eligible for
DOE financial assistance.
(3) The Director, with the concurrence of the Assistant General
Counsel for Standards of Conduct, may exempt an applicant from the
restriction of paragraph (c)(2) of this section if the applicant is
determined to have unique expertise or technical resources and if it is
determined that providing financial assistance to the applicant would be
in the public interest. DOE shall publish in the Federal Register a
notice of any exemption under this paragraph at least 30 days prior to
making an award to the exempted applicant. No exemption may be granted
to a DOE employee who is or was involved in initiating, developing,
reviewing or administering the financial assistance program under which
assistance is being sought, or to a DOE employee who is considered
''supervisory'' under the Department of Energy Organization Act (42
U.S.C. 7211(a)).
(4) In reviewing any proposed financial assistance award, the
Assistant General Counsel for Standards of Conduct shall consider the
prohibition of 18 U.S.C. 203 (Section 203 prohibits a Government
employee from receiving compensation from persons other than the United
States for services rendered by the employee or another before a
Government agency in relation to a particular matter in which the United
States is a party or has a direct and substantial interest).
(47 FR 44083, Oct. 5, 1982, as amended at 53 FR 12138, Apr. 13, 1988;
57 FR 3, Jan. 2, 1992)
Effective Date Note: At 57 FR 3, Jan. 2, 1992, 600.7 was amended
by redesignating paragraph (b)(2)(i)(G) as paragraph (b)(2)(i)(H) and
adding a new paragraph (b)(2)(i)(G), effective February 3, 1992.
10 CFR 600.8 Small and disadvantaged business participation.
(a) DOE shall provide adequate opportunities for small businesses,
including socially and economically disadvantaged small business
concerns, to compete for DOE financial assistance awards consistent with
the program statute or other Federal law, implementing rules, and
program needs.
(b) DOE may use small business preferences or set-asides in DOE
financial assistance programs only when authorized or required by
Federal statute. DOE shall include a citation to such statutory
authority in any solicitation that provides for small business
preference or a set-aside.
(c) DOE shall require recipients and subrecipients to take
affirmative action with regard to small and disadvantaged businesses in
contracts under financial assistance awards and subawards only as
authorized by Federal statute, program rules, and this part.
10 CFR 600.9 Solicitation.
(a) General. A solicitation for financial assistance applications
shall be in the form of a program rule or other publicly available
document which invites the submission of applications by a common due
date or within a prescribed period of time.
(1) A Program Assistant Secretary may annually issue a program notice
describing research areas in which financial assistance is being made
available. Such notice shall also state whether the research areas
covered by the notice are to be added to those listed in a previously
issued program rule. If they are to be included, then applications
received as a result of the notice may be treated as having been in
response to that previously published program rule. If they are not to
be included, then applications received in response to the notice are to
be treated as unsolicited applications. Solicitations (other than a
program rule which serves to solicit applications), e.g., PONS and
PRDAS, may be issued only by a DOE Contracting Officer.
(2) DOE shall publish either a copy or a notice of the availability
of a financial assistance solicitation in the Federal Register. If the
potential applicants are limited to State governments, DOE may, in
advance of Federal Register publication, mail a copy of the solicitation
simultaneously to each potential applicant. DOE shall publish
solicitations or notices in the Commerce Business Daily when potential
applicants include for-profit organizations or when there is the
potential for significant contracting opportunities under the resulting
financial assistance awards. In order to reach the widest possible
audience of potentially interested applicants, DOE may also publish
notices or copies of solicitations in trade and professional journals,
news media, and use other means of communication, as appropriate.
(b) Subawards. In accordance with the provisions of the applicable
statute and program rules, if a DOE financial assistance program
involves the award of financial assistance by a recipient to a
subrecipient, the recipient shall provide sufficient advance notice so
that potential subrecipients may prepare timely applications and secure
prerequisite reviews and approvals.
(c) Contents of solicitation. Each solicitation shall include the
following types of information and such other information as may be
necessary to allow potential applicants to decide whether to submit an
application, to understand how applications will be evaluated, and to
know what the obligations of a recipient would be:
(1) A control number assigned by the issuing DOE office;
(2) The amount of money available for award and, if appropriate, the
expected size of individual awards broken down by areas of priority or
emphasis, and the expected number of awards;
(3) The type of award instrument or instruments to be used;
(4) Catalog of Federal Domestic Assistance number for the program;
(5) Who is eligible to apply (see 600.7);
(6) The expected duration of DOE support or the period of
performance;
(7) Application form or format to be used, location for application
submission, and number of copies required;
(8) The name of the responsible DOE Contracting Officer (or, for
program notices, the program office contact) to contact for additional
information, and, as appropriate, an address where application forms may
be obtained;
(9) Whether loans are available under the DOE Minority Economic
Impact (MEI) loan program, 10 CFR part 800, to finance the cost of
preparing a financial assistance application, and, if MEI loans are
available, a general description of the eligibility requirements for
such a loan, a reference to Catalog of Federal Domestic Assistance
Number 81.063, and the name and address of the DOE office from which
additional information and loan application forms can be obtained;
(10) Appropriate periods or due dates for submission of applications
and a statement describing the consequences of late submission. If
programs have established a series of due dates to allow for the
comparison of applications against each other, these dates shall be
indicated in the solicitation;
(11) The types of projects or activities eligible for support;
(12) Evaluation criteria (and the weight or relative importance of
each), which may include one or more of the following or other criteria,
as appropriate:
(i) Qualifications of the applicant's personnel who will be working
on the project;
(ii) Adequacy of the applicant's facilities and resources;
(iii) Cost-effectiveness of the project;
(iv) Adequacy of the project plan or methodology;
(v) Management capability of the applicant;
(vi) Sources of financing available to the project. Any expectation
concerning cost sharing shall be clearly stated. While cost sharing is
encouraged, unless the cost sharing expectation is addressed in the
solicitation, it shall not be considered in the evaluation process and
shall be considered only at the time the award is negotiated.
(vii) Relationship of the proposed project to the objectives of the
solicitation;
(13) A listing of program policy factors, if any, indicating the
relative importance of each, if appropriate (see 600.19(a));
(14) References to or copies of:
(i) Statutory authority for the program;
(ii) Applicable rules, including the appropriate subparts of this
part;
(iii) Other terms and conditions applicable to awards to be made
under the solicitation, including allowable and unallowable costs and
reporting requirements;
(iv) Policies and procedures for patents, technical data, copyrights,
audivoisual productions and exhibits;
(v) Any required assurances not included in the application form;
(15) The deadline for submission of required or optional
preapplications;
(16) Date, time, and location of any briefing for applicants;
(17) Required presubmission reviews and clearances, including a
statement as to whether review under OMB Circular A-95 (''Review,
Evaluation, and Coordination of Federal and Federally Assisted Projects
and Programs''), Attachment A, part I, is required and, if required, the
consequences of noncompliance (see 600.11);
(18) Dates by which selections and awards are expected to be made and
whether unsuccessful applications will be returned to the applicant or
be retained by DOE and for what period of time;
(19) A statement that DOE is under no obligation to pay for any costs
associated with preparation or submission of applications if an award is
not made. If an award is made, such costs may be allowable as provided
in the applicable cost principles (see 600.1093);
(20) A statement that DOE reserves the right to fund, in whole or in
part, any, all, or none of the applications submitted in response to the
solicitation; and
(21) Any other relevant information, including explanatory
information or justifications required by this part.
(47 FR 44083, Oct. 5, 1982, as amended at 53 FR 5261, Feb. 22, 1988;
54 FR 41946, Oct. 13, 1989)
10 CFR 600.10 Form and content of applications and preapplications.
(a) General. Applications shall be required for all financial
assistance projects or programs. Preapplications shall be required for
all construction, land acquisition, and land development projects or
programs for which the need for Federal funding exceeds $100,000 unless
the cognizant program office makes a written program determination to
waive the preapplication requirement.
(b) Forms. Applications or preapplications shall be on the form or
in the format and in the number of copies specified by DOE either in
this part, in a program rule, or in the applicable solicitation, and
must include all required information. For State governments, local
governments, or Indian tribal governments, applications shall be made on
the applicable forms in the Standard Form 424 (SF 424) series. Such
applicants shall not be required to submit more than the original and
two copies of the application or preapplication.
(Approved by OMB under control number 1910-0400.)
(c) Signature. The application and any preapplication must be signed
by the individual who is applying or by an individual who is authorized
to act for the applicant organization and to commit the applicant to
comply with the terms and conditions of the financial assistance
instrument, if awarded.
(d) Contents of a preapplication. In general, a financial assistance
preapplication shall include:
(1) A facesheet containing basic identifying information. The
facesheet shall be the Standard Form (SF)424;
(2) A brief narrative statement describing the project objectives and
method of accomplishment; and
(3) A project budget identifying the estimated amounts of Federal
funds and non-federal contributions (cash or in-kind) needed to support
the project.
(e) Contents of an application. In general, a financial assistance
application shall include:
(1) A facesheet containing basic identifying information. The
facesheet shall be the Standard Form (SF)424;
(2) A detailed narrative description of the proposed project,
including the objectives of the project and the applicant's plan for
carrying it out;
(3) A budget with supporting justification (see 600.102 and
600.203); and
(4) Any required preaward assurances.
(f) Incomplete applications. DOE may return an application which
does not include all information and documentation required by statute,
program rule, and the solicitation, if in the judgment of the DOE
Contracting Officer, the nature of the omission precludes review of the
application.
(g) Supplemental information. During the review of a complete
application, DOE may request the submission of additional information
only if the information is essential to evaluate the application.
(53 FR 5261, Feb. 22, 1988, as amended at 53 FR 8045, Mar. 11, 1988;
54 FR 23959, June 5, 1989)
10 CFR 600.11 Intergovernmental review.
Intergovernmental review of DOE financial assistance shall be
conducted in accordance with 10 CFR part 1005.
(48 FR 29184, June 24, 1983)
10 CFR 600.12 Generally applicable requirements.
(a) Generally applicable requirement means Federal policies of
administrative requirements that apply to (1) more than one DOE
financial assistance award, or (2) a DOE financial assistance program
and one or more other Federal assistance programs. Generally applicable
requirements include, but are not limited to, the requirements of this
part, Federal statutes, the OMB Circulars and other governmentwide
guidance implemented by this part, Executive Orders, and the
requirements identified in appendix A of this part.
(b) Except as expressly exempted by Federal statute or program rule,
recipients and subrecipients of DOE financial assistance shall comply
with all generally applicable requirements to which, by the terms of
such requirements, they are subject. DOE may require the submission of
preaward assurances of compliance with one or more generally applicable
requirements and may conduct preaward and postaward compliance reviews
only to the extent such actions are authorized by this part, Federal
statute or rule, Executive Order, or OMB directive.
(c) Provision shall be made to design and construct all buildings, in
which DOE funds are used, to meet appropriate seismic design and
construction standards. Seismic codes and standards meeting or
exceeding the provisions of the Uniform Building Code (1988 or as
revised), shall be deemed appropriate.
(47 FR 44083, Oct. 5, 1982, as amended at 57 FR 3, Jan. 2, 1992)
Effective Date Note: At 57 FR 3, Jan. 2, 1992, 600.12 was amended
by adding paragraph (c), effective February 3, 1992.
10 CFR 600.13 Application deadlines.
(a) Each solicitation shall include a deadline date for submission of
applications. The established deadline shall also apply to any
amendment to an application initiated by an applicant. An application
or amendment shall be timely if it is:
(1) Received at the location specified in the solicitation on or
before the established deadline date and time; or
(2) Received after the deadline date, and the application or
amendment was sent by first class mail, was postmarked on or before the
deadline date, and is received by DOE before technical evaluation of all
acceptable applications submitted in response to the solicitation
begins. Applicants should obtain a legibly dated mailing receipt from
the U.S. Postal Service or use certified or registered mail to enable
them to substantiate the date of mailing. Private metered postmarks
shall not be acceptable proof of the date of mailing; and
(3) Complete (see 600.10(d) and 600.11(c)).
(b) DOE shall not consider and shall return any application that does
not meet the requirements of paragraphs (a)(1) or (a)(2) and (a)(3) of
this section.
(c) If necessary, DOE may extend an established application deadline
by publishing a timely notice of the extension in the same manner as the
solicitation was publicized. The extension of time shall apply to all
applicants.
10 CFR 600.14 Unsolicited applications.
(a) General. An unsolicited application is an application for DOE
financial assistance which is not submitted in response to a
solicitation or which is submitted in response to a Notice of Program
Interest (see 600.15). DOE may award financial assistance to an
applicant who submits an unsolicited application for support of a
project that involves an innovative idea, method or approach. DOE shall
determine whether the application would result in a procurement contract
or in a grant or cooperative agreement. An unsolicited application may
be considered for DOE financial assistance only if the application is
relevant to a public purpose of support or stimulation authorized by
Federal statute.
(b) Preapplication contact. Anyone who is contemplating submitting
an unsolicited application is encouraged, before expending extensive
effort in preparing a detailed application or submitting any proprietary
information to DOE, to make preliminary inquiries of DOE program staff
as to DOE interest in the type of project contemplated. The potential
applicant should not construe any such discussion as either
encouragement to submit an unsolicited application or a promise of an
award.
(c) Preparation and submission of application. A guide for preparing
unsolicited applications/proposals is available from the
Field/Headquarters Support Division (PR-132), Office of Procurement,
Assistance and Program Management, Department of Energy, 1000
Independence Avenue, SW., Washington, DC 20585.
(d) General evaluation. DOE shall make a general evaluation of an
unsolicited application based on the following types of factors:
(1) The overall merit of the proposed project or activity.
(2) The anticipated objectives to be achieved and the probability of
achieving the stated objectives.
(3) The facilities or techniques which the applicant proposes to make
available to achieve the proposed project's objectives.
(4) The qualifications of the proposed project director or key
personnel who are considered to be critical to the achievement of the
proposed project's objectives.
(e) Criteria for selection of an unsolicited application. (1) DOE
may select an unsolicited application only if:
(i) The application is meritorious based on the general evaluation as
in paragraph (d) of this section; and
(ii) The proposed project represents a unique or innovative idea,
method, or approach which would not be eligible for financial assistance
under a recent, current, or planned solicitation, and if, as determined
by DOE, a competitive solicitation would be inappropriate.
(2) Any request for continuation, renewal, or supplemental funding of
a project which was originally funded as the result of an unsolicited
application shall be evaluated in the same manner as any other request
for such funding and shall not be subject to the selection criterion of
paragraph (e)(1)(ii) of this section.
(f) Justification for acceptance of an unsolicited application.
Prior to making an award on the basis of acceptance of an unsolicited
application, a justification document, which describes the results of
the general evaluation conducted in accordance with paragraph (d) of
this section and which addresses the selection criteria in paragraph
(e)(1) of this section, must be prepared and completed for the award
file. The justification must be prepared and signed by the initiating
program official (project officer), and approved by the responsible
program Assistant Secretary or his or her designee, and the contracting
officer. If the amount of DOE funds is $100,000 or less for a proposed
noncompetitive financial assistance award under any program for which
the HCA has been formally assigned cognizance, the justification shall
be approved by the HCA and the Contracting Officer. Concurrence for a
particular award or class of awards of $100,000 or less may be waived by
local legal counsel, if they so elect. Further, an announcement of the
intent to award based on an unsolicited application and an explanation
of why such an award is being made shall be published for public comment
in the Federal Register at least 14 calendar days prior to making an
award. Such an explanation must address the selection criteria
contained in 600.14(e)(1) (i) and (ii).
(g) Funding. An award based on an unsolicited application may be
made only if sufficient appropriated funds are available.
(h) Unsuccessful applications. DOE shall promptly notify in writing
each applicant whose application does not satisfy the requirements of
this section. DOE will return unsuccessful unsolicited applications
only if requested by the applicant. This request may be made at the
time of application or up to 30 days after the date of the written
notification required by this paragraph.
(The information collection requirements contained in paragraph
(c)(1) have been approved by the Office of Management and Budget under
control numbers 0348-0005 -- 0348-0009)
(47 FR 44083, Oct. 5, 1982, as amended at 53 FR 5262, Feb. 22, 1988;
53 FR 8046, Mar. 11, 1988; 53 FR 12139, Apr. 13, 1988; 54 FR 23959,
June 5, 1989; 57 FR 4, Jan. 2, 1992)
Effective Date Note: At 57 FR 4, Jan. 2, 1992, 600.14 was amended
by revising paragraphs (c) and (e)(1)(ii) and by adding a sentence to
the end of paragraph (f), effective February 3, 1992. For the
convenience of the user, the superseded text appears as follows:
600.14 Unsolicited applications.
(c) Preparation and submission of application. A guide for preparing
unsolicited applications/proposals is available from the Unsolicited
Proposals Management Section, Reports and Analysis Branch (MA-942),
Procurement and Assistance Management Directorate, Department of Energy,
1000 Independence Avenue, SW., Washington, DC 20585.
(1) Unsolicited applications shall be in the format set forth in
''The Guide for Submission of Unsolicited Proposals,'' except that a
State government, local government, or Indian tribal government shall
use one of the applications forms prescribed in 600.410, as
appropriate.
(2) An unsolicited application must be submitted to the Unsolicited
Proposals Management Section at the address specified in paragraph (c)
of this section. If there have been prior discussions with a particular
DOE program office, and the applicant wants the application to be
considered by that office, the applicant should indicate ''For
consideration by (Name of appropriate program)'' on the face of the
application.
(e) * * *
(1) * * *
(ii) The proposed project represents a unique or innovative idea,
method, or approach which would not be eligible for financial assistance
under a recent, current, or planned solicitation, or if, as determined
by DOE, a competitive solicitation would be inappropriate.
10 CFR 600.15 Notice of program interest.
(a) General. (1) DOE may publish a periodic Notice of Program
Interest in the Federal Register and other media, as appropriate, which
describes broad, general, technical problems and areas of investigation
for which DOE may award grants or cooperative agreements.
(2) DOE shall evaluate any application submitted under a Notice of
Program Interest as an unsolicited application (see 600.14).
(b) Contents. In addition to the information required under
600.9(c), the notice shall include the following:
(1) A brief description of the areas of interest for which DOE may
provide financial assistance.
(2) A statement about how resulting applications will be evaluated
and the criteria for selection and funding as specified in 600.14.
(3) An expiration date with an explanation that such a date does not
represent a common deadline for applications but rather that
applications may be submitted at any time before the notice expires.
(4) The location for application submission, which shall be the
Unsolicited Proposals Management Section, Reports and Analysis Branch
(MA-942), Procurement and Assistance Management Directorate, Department
of Energy, Forrestal Building, 1000 Independence Avenue, SW.,
Washington, DC 20585, unless the notice specifies otherwise.
10 CFR 600.16 Objective merit review.
(a) General. (1) Each responsible official must establish and
publish in the Federal Register the details of the system of objective
merit review which covers the financial assistance program administered
by each cognizant program office within his or her jurisdiction within
120 days of the issuance of this rule for existing programs and prior to
the review of applications for new programs. More than one program may
adopt the same system. If a program wants to review an application or
group of applications using the criteria and procedures of an already
established review system other than its own, it may do so by following
the deviation procedure described in paragraph (g) of this section. DOE
employees designated by responsible officials to carry out the review
process shall ensure that the evaluation of applications is conducted in
a fair and objective manner.
(2) Objective merit review of financial assistance applications is
intended to be advisory and is not intended to replace the authority of
the program official with responsibility for deciding whether an award
will be made. It is expected that the cognizant project/program officer
(scientific monitor) who normally also reviews the proposals for
technical/scientific merit, will, additionally, review it from a program
policy perspective. Nevertheless, the objective merit review system
must set forth the relationship between the reviewing individuals, or
the review committees or groups, and the official who has the final
decision-making authority. In defining this relationship, the system
must set out, as a minimum, the decision-making and documentation
processes to be followed by the authorized official responsible for
selection when an adverse recommendation has been received through the
objective merit review process.
(3)(i) This section applies to all new and renewal applications
(except applications for conferences/symposia and for awards which come
under the criteria of paragraph (a)(3)(ii) of this section) in programs
which make discretionary financial assistance awards and to any other
financial assistance programs in which objective merit review is
required by the authorizing legislation.
(ii) For projects in which multiple renewals are probable, an
objective merit review need not necessarily be done at each renewal, but
instead at appropriate points during the course of the project. A
determination that a project need not be reviewed at each renewal shall
be made at the time the initial award is issued, or, in the event that
unforeseen circumstances arise which preclude a merit review at a
previously scheduled point during the course of a project, the merit
review of a renewal application may be waived prior to the renewal of
the project. The criteria on which the determination that a project
need not be reviewed at each renewal is based, shall be included in the
system of objective merit review to be established by the responsible
official in accordance with paragraphs (a) (1) and (2) of this section.
For a waiver to be issued, the project officer shall prepare, with the
concurrence of his or her immediate supervisor, a written determination
for the approval of the responsible official that a merit review is not
appropriate at the particular point in time, setting forth the
circumstances that preclude the merit review. The determination shall
contain an evaluation of the technical merit of the project being
proposed for additional support. This determination shall also set
forth the facts which would support the justification required by 10 CFR
600.7(b)(2)(i). Finally, the determination shall indicate the reports
required under the award and shall be placed in the official file by the
Contracting Officer.
(4) Each responsible official shall insure consistency among DOE
field offices in the implementation of the review system(s) for his/her
program area.
(5) Each formal review system must contain the elements listed in
paragraphs (b) through (e) of this section.
(b) Basic review standards. (1) Each application may be assessed
from a policy/programmatic perspective prior to undergoing merit review.
Those that meet policy and programmatic considerations shall generally
be reviewed by at least three qualified persons in addition to the
official responsible for selection.
(2) The reviewers of any particular application may be any mixture of
federal or non-federal experts, including individuals from within the
cognizant program office, except as indicated otherwise below (see
paragraphs (b)(3), (5) and (d)(2)(ii) of this section). The DOE shall
select external (non-DOE Federal or non-federal) reviewers on the basis
of their professional qualifications and expertise in the field of
research.
(3) In selecting persons in accordance with 600.16(b) (1) and (2) to
review applications, such selection of additional reviewers shall not
include, to the extent possible, anyone who, on behalf of the Federal
Government, performed or is likely to perform any of the following
duties for any of the applications:
(i) Providing substantive technical assistance to the applicant;
(ii) Approving/disapproving or having any decision-making role
regarding the application;
(iii) Serving as the project officer or otherwise monitoring or
evaluating the recipient's programmatic performance;
(iv) Serving as the Contracting Officer (CO), or performing business
management functions for the project; or
(v) Auditing the recipient or the project.
Anyone who has line authority over a person who is ineligible to
serve as a reviewer because of the above limitations is also ineligible
to serve as a reviewer.
(4) It may occasionally be necessary, after the fact, to change
project officer designation, thereby resulting in an individual who
participated in the review of an application being appointed as the
project officer. This will not be considered a violation of this policy
of objective merit review provided the assignment was not expected when
the review was conducted.
(5) Persons outside the cognizant program office must not have been
employees of that office, including having line authority over that
office, for one year prior to participation as a reviewer in the
objective merit review process for the program.
(c) Comparative review. (1) In order to enhance the validity of the
evaluation and rating process, applications can be evaluated in
comparison to each other.
(2) If a program area has issued a program notice, the responsible
official may implement review procedures which will result in
applications being evaluated in comparison to each other. Applications
in response to that notice may be assigned to a group of field readers,
to a standing committee, or to an ad hoc committee, as discussed below,
which is capable of reviewing them, and may be considered along with
other applications which were submitted in response to the program
notice. Such an application may also be eligible for review under an
applicable program announcement. For solicitations, review procedures
may also permit comparative evaluation with field readers, a standing
committee, or an ad hoc committee being used as appropriate.
(d) Types of review groups -- (1) Field readers. (i) Objective merit
review of applications may be obtained by using field readers to whom
applications are sent for review and comment. Field readers may also be
used as an adjunct to financial assistance application review committees
when, for example, the type of expertise needed or the volume of
financial assistance applications to be reviewed requires such auxiliary
capacity.
(ii) Safeguards should be instituted to ensure that field readers
clearly understand the process, their role, and the criteria upon which
the applications are to be evaluated.
(iii) For those situations in which a standing committee is the
appropriate review mechanism (see paragraph (d)(2) of this section), but
a group of field readers must be used instead, it should function as
nearly like a committee as possible. For example, if all members of the
standing committee were to evaluate all of the applications under
review, then all field readers must receive all of the applications to
be reviewed even though they are in geographically separate locations
and all field readers should be instructed to follow the procedures
established for evaluating the applications.
(2) Standing committees. (i) Standing committees are normally
appropriate when required by legislation or when the following
conditions prevail:
(A) A sufficient number of applications on specific topics to justify
the use of a standing committee(s) is received by the program on a
regular basis in accordance with a predetermined review schedule;
(B) There are a sufficient number of persons with the required
expertise who are willing and able to (1) accept appointments, (2) serve
over reasonably protracted periods of time, and (3) convene at regularly
scheduled intervals or at the call of the chairperson; and
(C) The legislative authority for the particular program(s) involved
extends for more than one year.
(ii) Persons outside the cognizant program office shall constitute at
least half the reviewers on such committees unless a deviation from this
requirement has been approved under 600.16(g) below.
(3) Ad hoc committees. (i) Ad hoc review committees may not exceed
one year in duration and are appropriately used when use of a standing
committee is not feasible or when one of the following conditions
prevails:
(A) A small number of applications is received on an intermittent
basis;
(B) The program is one of limited duration, usually less than one
year;
(C) The applications to be reviewed have been solicited to meet a
specific program objective and cannot appropriately be reviewed by a
standing committee because of subject matter, time constraints, or other
limitations;
(D) The volume of applications received necessitates convening an
additional committee(s) of available reviewers; or
(E) It is determined that the applications submitted have special
review requirements, e.g., construction of a facility, the complexity of
subject matter cuts across the areas of expertise of two or more
standing committees, or the subject matter is of a special, nonrecurring
nature.
(ii) Ad hoc committees may not be used for reviewing financial
assistance applications for any program for which a standing committee
has been established (except for paragraph (d)(3)(i)(D) of this section)
unless a deviation is approved under 600.16(g) below.
(e) Review summary. Upon request, applicants are to be provided with
a written summary of the evaluation of their application.
(f) Reviewers with interest in application being reviewed. Reviewers
must comply with the requirements for the avoidance of conflict of
interest established in 600.17. In establishing a system of objective
merit review required in 600.16(a)(1), the responsible official shall
develop procedures which will permit DOE to evaluate whether a conflict
of interest exists. A committee or group of field readers which
includes as objective merit reviewers any individuals who cannot meet
the requirements of 600.17 or the program's review procedures, with
regard to a particular application being reviewed, e.g., officials
mentioned in paragraphs (b) (3) and (5) of this section, shall operate
as follows:
(1) These individuals or officials may not review, discuss, and/or
make a recommendation on an application(s) in which they have a conflict
of interest.
(2) In the case of a review committee, the committee member must
absent himself or herself from the committee meeting during the review
and discussion of the application(s) in which he/she has a conflict of
interest.
(g) Deviations. (1) In any instance in which a program's
pre-established review system is not to be used to review an
application, group of applications, or class of applications, written
prior approval for utilization of a different procedure, which itself
must, to the extent possible, conform to the provisions of this section
pertaining to objective merit review, must be obtained from the
responsible official or his or her designee.
(2) If the deviation sought applies to a class of applications and
constitutes a deviation from the requirements of this part, approval for
deviation must be obtained in accordance with 600.4. If such request
for deviation is approved, all details of the review procedure utilized
and the proceedings and determination must be fully documented.
(h) Solicitation information. For solicited applications, if the
types of reviewers are known at the time of solicitation, or if there is
a potential for the use of non-DOE evaluators, this information shall be
included in the solicitation.
(i) Outside evaluators. An outside reviewer shall be required to
sign a written statement agreeing to use the application information
only for review and to treat it in confidence except to the extent that
the information is available to the general public without restriction
as to its use from any source, including the applicant. Further, the
reviewer shall be required to agree to comply with any notice or
restriction placed on the application; upon completion of the review
the reviewer shall return all copies of the application (or abstracts,
if any) to DOE; and unless authorized by DOE, the reviewer shall not
contact the applicant concerning any aspect of the application.
(47 FR 44083, Oct. 5, 1982, as amended at 54 FR 41946, Oct. 13, 1989;
57 FR 4, Jan. 2, 1992)
Effective Date Note: At 57 FR 4, Jan. 2, 1992, 600.16 was amended
by revising the heading and paragraph (a)(3)(ii) and by changing
''evaluators'' to ''reviewers'', ''evaluator'' to ''reviewer'' and
''evaluation'' to ''review'' in paragraph (i). For the convenience of
the user the superseded text appears as follows.
600.16 Reviewer affiliations.
(a) * * *
(3) * * *
(ii) For projects in which multiple renewals are probable, an
objective merit review need not necessarily be done at each renewal, but
instead at appropriate points in the overall project period. A
determination that a project need not be reviewed at each renewal shall
be made in writing by the project officer at the time the initial award
is issued, or at least one year prior to the date a renewal award would
be issued, and concurred in by an official at least one level above the
official responsible for selecting the application for award. The
determination shall also indicate the reports required under the award.
The criteria on which the determination that a project need not be
reviewed at each renewal is based shall be included in the system of
objective merit review to be established by the responsible official in
accordance with paragraphs (a) (1) and (2) of this section.
10 CFR 600.17 Conflict of interest.
Any person who participates in the review of applications for DOE
financial assistance or in the administration of DOE financial
assistance shall comply with 1010.101(a) and 1010.302(a)(1) of the DOE
rules on the conduct of employees at 10 CFR part 1010. Current and
former DOE employees who participate in any aspect of the financial
assistance process shall comply with all applicable requirements of 10
CFR part 1010.
10 CFR 600.18 Authorized uses of information.
(a) General. Information contained in applications shall be used
only for evaluation purposes unless such information is generally
available to the public, is already the property of the Government or
the Government already has unrestricted use rights, or is or has been
made available to the Government from any source, including the
applicant, without restriction.
(b) Definitions. For purposes of this section --
(1) ''Proprietary data'' means technical data which embody trade
secrets developed at private expense, such as design procedures or
techniques, chemical composition of materials, or manufacturing methods,
processes, or treatments, including minor modifications thereof,
provided that such data:
(i) Are not generally known or available from other sources without
obligation concerning their confidentiality;
(ii) Have not been made available by the owner to others without
obligation concerning their confidentiality; and
(iii) Are not already available to the Government without obligation
concerning their confidentiality.
(2) ''Technical data'' means recorded information, regardless of form
or characteristic, of a scientific or technical nature. It may, for
example, document research, experimental, developmental, demonstration,
or engineering work or be usable or used to define a design or process
or to procure, produce, support, maintain, or operate material. The
data may be graphic or pictorial delineations in media such as drawings
or photographs, text in specifications or related performance or design
type documents, or computer software (including computer programs,
computer software data bases, and computer software documentation).
Examples of technical data include research and engineering data,
engineering drawings and associated lists, specifications, standards,
process sheets, manuals, technical reports, catalog item identification,
and related information. Technical data, as used in this section, does
not include financial reports, cost analyses, and other information
incidental to financial assistance administration.
(c) Treatment of application information. (1) An application may
include technical data and other data, including trade secrets and/or
privileged or confidential commercial or financial information, which
the applicant does not want disclosed to the public or used by the
Government for any purpose other than application evaluation. To
protect such data, the applicant should specifically identify each page
including each line or paragraph thereof containing the data to be
protected and mark the cover sheet of the application with the following
Notice as well as referring to the Notice on each page to which the
Notice applies.
The data contained in pages ---- of this application have been
submitted in confidence and contain trade secrets or proprietary
information, and such data shall be used or disclosed only for
evaluation purposes, provided that if this applicant receives an award
as a result of or in connection with the submission of this application,
DOE shall have the right to use or disclose the data herein to the
extent provided in the award. This restriction does not limit the
Government's right to use or disclose data obtained without restriction
from any source, including the applicant.
(2) Unless a solicitation specifies otherwise, DOE shall not refuse
to consider an application solely on the basis that the application is
restrictively marked.
(3) Data (or abstracts of data) marked with the Notice under
paragraph (c)(1) shall be retained in confidence and used by DOE or its
designated representatives as specified in 600.16 solely for the
purpose of evaluating the proposal. The data so marked shall not be
disclosed or used for any other purpose except to the extent provided in
any resulting award, or to the extent required by law, including the
Freedom of Information Act (5 U.S.C. 552) (10 CFR part 1004). The
Government shall not be liable for disclosure or use of unmarked data
and may use or disclose such data for any purpose.
(4) The Government shall obtain unlimited rights in the technical
data contained in any application which results in an award except those
portions of the technical data which the applicant asserts and properly
marks as proprietary data, or which are not directly related to or will
not be utilized in the project and are deleted from the application with
the concurrence of DOE.
(5) The following clause, which applies only to technical data and
not to other data such as privileged or confidential commercial or
financial information shall apply to every award.
Except for technical data contained in pages ---- of the recipient's
application, dated ---- , which are asserted by the recipient as being
proprietary data, it is agreed that as a condition of this award, and
notwithstanding the provisions of any notice appearing on the
application, the Government shall have the right to use, duplicate,
disclose and have others do so for any purpose whatsoever the technical
data not identified in the above blanks contained in the application
upon which this award is based.
10 CFR 600.19 Application evaluation and selection.
(a) Applications for discretionary financial assistance, whether
solicited or unsolicited, shall be evaluated by reviewers in accordance
with this rule, DOE directives, and the terms and conditions of the
solicitation, if any.
(b) In deciding which new applications (other than unsolicited
applications) or renewal applications for discretionary financial
assistance to select for award, DOE shall consider the results of the
application evaluation (technical, business and financial) which has
been conducted in accordance with this section, plus any
intergovernmental review comments (see 600.11), or other available
advice or information as well as published program policy factors, if
any. The selection of applications under any given solicitation shall
be made by responsible program Assistant Secretary or his or her
designee; unless, in accordance with applicable DOE directives, such
selection is required to be made by the Secretary or designee.
(c) Program policy factors are factors which the selection official
may use to select a range of projects that would best serve program
objectives. DOE shall describe in the solicitation any program policy
factor that may be used in making selections, the justification for its
use and, if appropriate, the relative priority of each such factor.
Examples of program policy factors are:
(1) Geographic distribution;
(2) Diverse types and sizes of applicant entities;
(3) A diversity of methods, approaches, or kinds of work; and
(4) Projects which are complementary to other DOE programs or
projects.
(d) After the selection of an application, DOE may, if necessary,
enter into negotiations with an applicant. Such negotiations are not a
commitment that DOE will make an award.
(e) For cooperative agreements, DOE may use the source selection
process (see 48 CFR 915.612 and 915.613) for the solicitation and
evaluation of applications and selection of awardees.
(f) See 600.31 for the selection process for continuation
applications and 600.14 for the selection process for unsolicited
applications.
(53 FR 5262, Feb. 22, 1988, as amended at 53 FR 8046, Mar. 11, 1988)
10 CFR 600.20 Legal authority and effect of an award.
(a) A DOE financial assistance award is valid only if it is in
writing and is signed by a DOE Contracting Officer.
(b) An award may be made only if DOE approves an application and/or
State plan, and if there are sufficient appropriated funds.
(c) DOE funds awarded under a grant or cooperative agreement shall be
obligated as of the date the DOE Contracting Officer signs the award;
however, the recipient is not authorized to incur costs under an award
prior to the beginning date of the budget period shown in the award
except as may be authorized in accordance with 600.103(g), 600.32 or
600.422(b) of this part. The duration of the DOE financial obligation
shall not extend beyond the expiration date of the budget period shown
in the award unless authorized by a DOE Contracting Officer by means of
a continuation or renewal award or other extension of the budget period.
(47 FR 44083, Oct. 5, 1982, as amended at 51 FR 39366, Oct. 28, 1986;
53 FR 8046, Mar. 11, 1988; 54 FR 23959, June 5, 1989)
10 CFR 600.21 Contents of award.
Each financial assistance award shall be made on a Notice of
Financial Assistance Award which includes the following, as applicable:
(a) Identification information for the project being supported,
including a unique instrument number.
(b) The dates of the budget period covered by the award, and if
additional funding is contemplated after such period, the expected
duration of the project period.
(c) The class of recipient (e.g. state government, educational
institution, individual).
(d) The source and amount of DOE funds authorized for obligation by
the recipient during the budget period specified; the amount and/or the
percentage of any required cost sharing; and estimates of total project
costs for the duration of DOE support.
(e) General terms and conditions of the award, including or
incorporating by reference the applicable program statute and rules, the
applicable subparts of this part, and, as appropriate, generally
applicable requirements.
(f) Special terms or conditions of award, including those necessary
to protect DOE interests or to achieve program objectives, and those
which may be required to be included on an instrument-by-instrument
basis, (e.g. reporting requirements and payment method).
(g) The approved budget for the budget period, including any
modifications resulting from negotiation.
(h) A reference to or inclusion of the approved application and/or
State plan, or other statement of the purpose and objectives of the
approved project (e.g. statement of work).
(i) The names, addresses and telephone numbers of recipient and DOE
staff with responsibilities for the project.
(j) Any other provisions necessary to establish the respective
rights, duties, obligations, and responsibilities of DOE and the
recipient, consistent with the requirements of this part.
10 CFR 600.22 Recipient acknowledgement of award.
(a) After signature by the DOE Contracting Officer, the award shall
be sent to the applicant. The applicant shall be required to return a
signed copy of the award acknowledging acceptance.
(b) The award, when mailed to the applicant, shall be accompanied by
a transmittal letter or other written notice indicating the date by
which the award must be acknowledged and returned. The date established
by DOE shall be not less than two weeks from the date of the notice. No
DOE funds shall be disbursed until the award document signed by the
recipient is received by DOE.
(1) In the event an applicant declines an award or fails to
acknowledge acceptance of an award, DOE shall deobligate the funds
obligated by the award after providing the applicant with at least two
weeks written notice of DOE's intention to deobligate.
(2) In the event a recipient acknowledges acceptance of an award but
does not commence performance under the award within a reasonable period
of time, DOE may terminate the award in accordance with the applicable
provisions of this part.
(c) After the recipient acknowledges the award, the terms and
conditions of the award may be amended only upon the written request or
with the written concurrence of the recipient unless the amendment is
one which DOE may make unilaterally in accordance with a program rule or
this part.
10 CFR 600.23 Notification to unsuccessful applicants.
(a) DOE shall promptly notify in writing each applicant whose
application has not been selected for award or whose application cannot
be funded because of the unavailability of appropriated funds. If the
application was not selected, the written notice shall briefly explain
why the application was not selected and, if for grounds other than
unavailability of funds, shall offer the unsuccessful applicant the
opportunity for a more detailed explanation upon request. If the notice
of non-selection involves a solicited application, the unsuccessful
applicant may specify, in its request for a more detailed explanation,
any objections to or apparent defects in the selection procedures
followed by DOE.
(b) In the case of a State plan disapproval, DOE shall follow the
notification procedures contained in the applicable statute or program
rule.
(47 FR 44083, Oct. 5, 1982, as amended at 48 FR 34404, July 28, 1983)
10 CFR 600.24 Maximum DOE obligation.
The maximum DOE obligation to the recipient is --
(a) For monetary awards, the amount shown in the award as the amount
of DOE funds obligated, and
(b) Any designated property.
DOE shall not be obligated to make any additional, supplemental,
continuation, renewal, or other award for the same or any other purpose.
10 CFR 600.25 Access to records.
(a) Recipient records. DOE and the Comptroller General of the United
States, or any of their authorized representatives, shall have the right
of access to any books, documents, papers, or other records of a
recipient that are directly pertinent to the DOE financial assistance
award, in order to make audit, examination, excerpts, and transcripts.
(b) Subrecipient records. DOE, the Comptroller General of the United
States, and the recipient, or any of their authorized representatives,
shall have the right of access to any books, documents, papers, or other
records of a subrecipient which are directly pertinent to the financial
assistance subaward, in order to make audit, examination, excerpts, and
transcripts.
(c) Contractor and subcontractor records. With respect to any
negotiated contract or subcontract in excess of $10,000 under a grant or
cooperative agreement, DOE, the Comptroller General of the United
States, the recipient and (if the contract was awarded under a financial
assistance subaward) the subrecipient, or any of their authorized
representatives shall have the right of access to any books, documents,
papers, or other records of the contractor or subcontractor which are
directly pertinent to that contract or subcontract, in order to make
audit, examination, excerpts, and transcripts.
(d) Duration of access right. The right of access may be exercised
for as long as the applicable records are retained by the recipient,
subrecipient, contractor, or subcontractor. (See 600.124 and 600.442
for record retention requirements for grants and cooperative agreements
based on recipient type.)
(47 FR 44083, Oct. 5, 1982, as amended at 53 FR 8046, Mar. 11, 1988)
10 CFR 600.26 Disputes and appeals.
(a) Final determination. Whenever practicable, DOE shall attempt to
resolve informally any dispute over the award or administration of
financial assistance. At the initiative of DOE or upon the written
request of an applicant for a continuation award or of a recipient, DOE
shall mail (by certified mail) a brief written determination signed by a
Contracting Officer, setting forth DOE's final disposition of any
dispute which is not resolved informally. Such determination shall
contain the following information:
(1) A summary of the dispute, including a statement of the issues and
of the positions taken by the Department and the party or parties to the
dispute; and
(2) The factual, legal and policy reasons for DOE's disposition of
the dispute.
(b) Right of appeal. Except as provided in paragraph (d)(1) of this
section, the final determination under paragraph (a) of this section may
be appealed to the Financial Assistance Appeals Board (the Board) in
accordance with the procedures set forth in 10 CFR part 1024. If the
final determination under paragraph (a) of this section involves a
dispute over which the Board has jurisdiction as provided in paragraph
(d)(2) of this section, the Contracting Officer's determination shall
state that, with respect to such dispute, the determination shall be the
final decision of the Department unless, within 60 days, a written
notice of appeal is filed. If the final determination under paragraph
(a) of this section involves a dispute over which the Board has no
jurisdiction as provided in paragraph (d)(1) of this section, the
Contracting Officer's determination shall state that, effective
immediately or on a later date specified therein, the determination
shall, with respect to such dispute, be the final decision of the
Department.
(c) Effect of appeal. The filing of an appeal with the Board shall
not stay any determination or action taken by DOE which is the subject
of the appeal. Consistent with its obligation to protect the interests
of the Federal Government, DOE may take such authorized actions as may
be necessary to preserve the status quo pending decision by the Board,
or to preserve its ability to provide relief in the event the Board
decides in favor of the appellant.
(d) Review on appeal. (1) The Board shall have no jurisdiction to
review:
(i) Any preaward dispute (except as provided in paragraph (d)(2)(ii)
of this section), including use of any special restrictive condition
pursuant to 600.105 or 600.412;
(ii) DOE denial of a request for a deviation under 600.4 or 600.406
of this part;
(iii) DOE denial of a request for a budget revision or other change
in the approved project under 600.103, 600.114, 600.422, or 600.430 of
this part or under another term or condition of the award;
(iv) Any DOE action authorized under 600.121(b) (1), (2), (3) or
(5); or 600.443 (a)(1), (a)(3) for suspensions only; or
600.443(a)(4) for actions disapproving renewal applications or other
requests for extension of time or additional funding for the same
project when related to recipient noncompliance, or such actions
authorized by program rule;
(v) Any DOE decision about an action requiring prior DOE approval
under 600.112(g), 600.119, or 600.436 of this part or under another
term or condition of the award;
(vi) A DOE decision not to make a continuation award, which decision
is based on the insufficiency of available appropriations;
(vii) Any matter which is under the jurisdiction of the Patent
Compensation Board (10 CFR 780.3);
(viii) Any matter which may be heard by the Invention Licensing
Appeals Board (10 CFR 781.65 and 781.66); or
(ix) Any other dispute not described in paragraph (d)(2) of this
section.
(2) In addition to any right of appeal established by program rule,
or by the terms and conditions (not inconsistent with paragraph (d)(1)
of this section) of an award, the Board shall have jurisdiction to
review:
(i) A DOE determination that the recipient has failed to comply with
the applicable requirements of this part, the program statute or rules,
or other terms and conditions of the award;
(ii) A DOE decision not to make a continuation award based on any of
the determinations described in paragraph (d)(2)(i) of this section;
(iii) Termination of an award for cause, in whole or in part, by DOE;
(iv) A DOE determination that an award is void or invalid;
(v) The application by DOE of an indirect cost rate; and
(vi) DOE disallowance of costs.
(3) In reviewing disputes authorized under paragraph (d)(2) of this
section, the Board shall be bound by the applicable law, statutes, and
rules, including the requirements of this part, and by the terms and
conditions of the award.
(4) The decision of the Board shall be the final decision of the
Department.
(48 FR 34404, July 28, 1983, as amended at 53 FR 8046, Mar. 11, 1988)
10 CFR 600.27 Debarment and suspension.
Applicants, recipients, subrecipients, and contractors under
financial assistance awards may be debarred and suspended for the causes
and in accordance with the procedures set forth in 10 CFR part 1036.
(49 FR 4323, Feb. 3, 1984, as amended at 53 FR 38940, Oct. 4, 1988)
10 CFR 600.28 Noncompliance.
(a) Except for noncompliance determinations under 10 CFR part 1040,
whenever DOE determines that a recipient has not complied with the
applicable requirements of this part, with the requirements of any
applicable program statute or rule, or with any other term or condition
of the award, a DOE Contracting Officer shall provide to the recipient
(by certified mail, return receipt requested) a written notice setting
forth
(1) The factual and legal bases for the determination of
noncompliance;
(2) The corrective actions and the date (not less than 30 days after
the date of the notice) by which they must be taken.
(3) Which of the actions authorized under 600.121(b) or 600.443(a)
of this part DOE may take if the recipient does not achieve compliance
within the time specified in the notice, or does not provide
satisfactory assurances that actions have been initiated which will
achieve compliance in a timely manner.
(b) DOE may take any of the actions set forth in 600.121(b) or
600.443(a) of this part concurrent with the written notice required
under paragraph (a) of this section or with less than 30 days written
notice to the recipient whenever:
(1) There is evidence the award was obtained by fraud;
(2) The recipient ceases to exist or becomes legally incapable of
performing its responsibilities under the financial assistance award;
or
(3) There is a serious mismanagement or misuse of financial
assistance award funds necessitating immediate action.
(53 FR 8046, Mar. 11, 1988, as amended at 54 FR 23959, June 5, 1989)
10 CFR 600.29 Suspension and termination.
(a) Suspension and termination for cause. DOE may suspend or
terminate an award for cause on the basis of --
(1) a noncompliance determination under 600.121 or 600.28;
(2) an immediate debarment or debarment of the awardee under 600.27.
(b) Notification requirements. Except as provided in 600.121(c) or
600.28, before suspending or terminating a award for cause, DOE shall
mail to the awardee (by certified mail, return receipt requested) a
separate written notice in addition to that required by 600.121(a) or
600.28(a) at least ten days prior to the effective date of the
suspension or termination. Such notice shall include, as appropriate --
(1) The factual and legal bases for the suspension or termination;
(2) The effective date or dates of the DOE action;
(3) If the action does not apply to the entire award, a description
of the activities affected by the action;
(4) Instructions concerning which costs shall be allowable during the
period of suspension, or instructions concerning allowable termination
costs, including in either case, instructions concerning any subgrants
or contracts;
(5) Instructions concerning required final reports and other closeout
actions for terminated awards (see 600.123);
(6) A statement of the awardee's right to appeal a termination for
cause pursuant to 600.26; and
(7) The dated signature of a DOE Contracting Officer.
(c) Suspension. (1) Unless DOE and the awardee agree otherwise, no
period of suspension shall exceed 90 days.
(2) DOE may cancel the suspension at any time, up to and including
the date of expiration of the period of suspension, if the awardee takes
satisfactory corrective action before the expiration date of the
suspension or gives DOE satisfactory evidence that such corrective
action will be taken.
(3) If the suspension has not been cancelled by the expiration date
of the period of suspension, the awardee shall resume the suspended
activities or project unless, prior to the expiration date, DOE notifies
the awardee in writing that the period of suspension shall be extended
consistent with paragraph (c)(1) of this section or that the award shall
be terminated.
(4) As of the effective date of the suspension, DOE shall withhold
further payments and shall allow new obligations incurred by the awardee
during the period of suspension only if such costs were authorized in
the notice of suspension or in a subsequent letter.
(5) If the suspension is cancelled or expires and the award is not
terminated, DOE shall reimburse the awardee for any authorized allowable
costs incurred during the suspension and, if necessary, may amend the
award to extend the period of performance.
(d) Termination by mutual agreement. In addition to any situation
where a termination for cause pursuant to 600.121 or 600.28 is
appropriate, either DOE or the awardee may initiate a termination of a
award (or portion thereof) as described in this paragraph. If the
awardee initiates a termination, the awardee must notify DOE in writing
and specify the awardee's reasons for requesting the termination, the
proposed effective date of the termination, and, in the case of a
partial termination, a description of the activities to be terminated,
and an appropriate budget revision. DOE shall terminate a award or
portion thereof under this paragraph only if both parties agree to the
termination and the conditions under which it shall occur. If DOE
determines that the remaining activities under a partially terminated
award would not accomplish the purpose for which the award was
originally awarded, DOE may terminate the entire award.
(e) Effect of termination. The awardee shall incur no new
obligations after the effective date of the termination of a award (or
portion thereof), and shall cancel as many outstanding obligations as
possible. DOE shall allow full credit to the awardee for the DOE share
of noncancellable obligations properly incurred by the awardee prior to
the effective date of the termination.
(f) Subgrants. Awardees shall follow the policies and procedures in
this section and in 600.121 or 600.28 for suspending and terminating
subgrants.
(47 FR 44091, Oct 5, 1982. Redesignated and amended at 53 FR 8047,
Mar. 11, 1988)
10 CFR 600.30 Responsible applicant.
(a) The signature of the applicant or an authorized official of the
applicant organization on the application shall represent the
applicant's preaward assurance that it is in compliance with or shall
comply with --
(1) The standards for management of funds, property, and other
assets, and the procurement of goods and services, as specified in this
subpart and in the solicitation, if any;
(2) Generally applicable requirements which require such an assurance
except that a separate signed assurance is required by 10 CFR 1040.4;
and
(3) The terms and conditions of the award as described in the program
rule, the solicitation, and this part.
(b) Prior to making a new, continuation, or renewal award, DOE
reserves the right to make a preaward review of the applicant's ability
to manage and account for a DOE award, if awarded, or to determine
compliance (or intended compliance) with generally applicable
requirements. If DOE determines on the basis of such a review or
otherwise documents that the applicant is not in compliance or cannot or
will not comply with such standards and requirements, DOE shall
determine, prior to award, that the applicant is not responsible and may
use special restrictive conditions or disapprove the application.
(c) The awardee shall assure that applicants for subawards comply
with applicable management standards and generally applicable
requirements as provided in paragraphs (a) and (b) of this section.
(47 FR 44091, Oct. 5, 1982, as amended at 50 FR 42356, Oct. 18, 1985;
51 FR 4297, Feb. 4, 1986. Redesignated and amended at 53 FR 8046, Mar.
11, 1988; 54 FR 23959, June 5, 1989)
10 CFR 600.31 Funding.
(a) General. The project period during which DOE expects to provide
award support for an approved project shall be specified on the Notice
of Financial Assistance Award (DOE Form 4600.1). For formula award
programs, the project period is the period of time covered by an
approved State plan. As indicated in paragraphs (b) and (e) of this
section, a project period may consist of one or more budget periods.
(b) Budget period and continuation awards. If the project period is
12 months or less, the budget period and the project period shall be
coextensive. Except as provided in paragraph (e) of this section,
multiyear awards, including formula awards, shall be funded annually
within the approved project period. Funding for each budget period
within the project period shall be contingent on DOE approval of a
continuation application submitted in accordance with a schedule
specified by DOE (see 600.102(c)). A continuation application shall
include --
(1) A statement of technical progress or status of the project to
date (see 600.115(d)(1));
(2) A detailed description of the awardee's plans for the conduct of
the project during the coming year; and
(3) A detailed budget for the upcoming budget period, including an
estimate of unobligated balances (see 600.32(c)). DOE shall review a
continuation application for the adequacy of the awardee's progress and
planned conduct of the project in the subsequent budget period. DOE
shall not require a continuation application to compete against any
other application. The amount and award of continuation funding is
subject to the availability of appropriations.
(c) Renewal awards. Discretionary renewal awards may be made either
on the basis of a solicitation or on a noncompetitive basis. If DOE
proposes to restrict eligibility for a discretionary renewal award to
the incumbent grantee, the noncompetitive award must be justified in
accordance with 600.7(b)(2). Renewal applications must be submitted no
later than 5 months prior to the scheduled expiration of the project
period unless a program rule or other published instruction establishes
a different application deadline. Before DOE may make a renewal award
for a formula grant, the grantee must submit a revised or amended State
plan in accordance with program rules and other instructions from DOE.
(d) Extensions. (1) Recipients of research awards, except recipients
of SBIR awards (See 600.125(d)), may extend the expiration date of the
final budget period of the project (thereby extending the project
period) if additional time beyond the established expiration date is
needed to assure adequate completion of the original scope of work
within the funds already made available. A single extension, which
shall not exceed twelve (12) months, may be made for this purpose, and
must be made prior to the originally established expiration date. The
recipient must notify the cognizant DOE Contracting Officer in the
awarding office in writing within ten (10) days of making the extension.
(2) DOE may extend any budget period of any type of financial
assistance without the need for competition or a justification of
restricted eligibility if:
(i) In the case of the final budget period of a project period, the
additional time necessary is 18 months or less in total, or for all
other budget periods, the additional time necessary is 6 months or less
in total; and
(ii) The grantee submits a written request for an extension before
the expiration date of the budget period in process and includes a
justification for the extension along with an expenditure plan for the
use of any additional funds requested. An expenditure plan need not be
provided when no additional funds are requested, unless the grantee
intends to rebudget funds in such a way as to require DOE prior approval
or unless the grantee is instructed otherwise by the Contracting
Officer.
(e) Retroactive extensions. DOE may retroactively extend an expired
budget period provided that the request for such extension is submitted
no later than 30 days after its expiration, the awardee can
satisfactorily explain why the request was not submitted prior to the
expiration date, and the Contracting Officer determines that the request
would have been approved had it been submitted in a timely manner.
(f) Exceptions. A single budget period exceeding 12 months may be
coextensive with the project period only if:
(1) Required by statute; or
(2) The project is primarily for construction, alteration and
renovation, or acquisition of real property, or other type of activity
that requires an extended funding commitment by DOE and for which an
annual continuation review is inappropriate; or
(3) At the time of award, the total period of DOE support is expected
to be less than 18 months; or
(4) The award is a Phase II SBIR award (see 600.125(c)).
(47 FR 44091, Oct. 5, 1982, as amended at 51 FR 39367, Oct. 28, 1986.
Redesignated and amended at 53 FR 8046, Mar. 11, 1988, and further
amended at 53 FR 12140, Apr. 13, 1988; 54 FR 41947, Oct. 13, 1989; 56
FR 4, Jan. 2, 1992)
Effective Date Note: At 56 FR 4, Jan. 2, 1992, 600.31 was amended
by revising paragraph (d)(1), by replacing the period at the end with
''; or'' in paragraph (f)(3) and adding a new paragraph (f)(4). For
the convenience of the user the superseded text appears as follows.
600.31 Funding.
(d) Extensions. (1) Recipients of research awards may extend the
expiration date of the final budget period of the project (thereby
extending the project period) if additional time beyond the established
expiration date is needed to assure adequate completion of the original
scope of work within the funds already made available. A single
extension, which shall not exceed twelve (12) months, may be made for
this purpose, and must be made prior to the originally established
expiration date. The recipient must notify the cognizant DOE
Contracting Officer in the awarding office in writing within ten (10)
days of making the extension.
10 CFR 600.32 Calculation of award.
(a) Total approved budget. ''Total approved budget'' means the
amount of costs authorized to be incurred during the budget period, as
shown on the Notice of Financial Assistance Award, by a awardee and any
subawardee or contractor as well as the estimated value of in-kind
contributions, to carry out an approved project. The total approved
budget consists of DOE funds for both direct and indirect costs and any
required cost sharing. The total approved budget shall indicate the
maximum amount of funds DOE shall provide and the minimum amount or
percentage of any cost sharing the awardee is required to provide.
(b) Excess funds. During the term of the final budget period (or
only budget period should the award have only one) for which support is
provided, a awardee must notify DOE whenever it becomes apparent to the
awardee that the amount of DOE funding authorized is expected to exceed
its needs by more than $5,000 or 5 percent of the DOE award, whichever
is greater. DOE may reduce the award by an amount which does not exceed
the total amount of excess funds.
(c) Unobligated balances -- (1) Other than research awards. When the
awardee has unobligated balances remaining at the end of a budget period
(see 600.116) such funds may be used in the subsequent budget period if
such use is authorized in the terms and conditions of the award or is
included in the total approved budget shown in an amended Notice of
Financial Assistance Award.
(2) Research grants. Any unobligated balance of funds which remains
at the end of any funding period, except the final funding period of the
project period, may be carried over to the next funding period, and may
be used to defray costs of the period into which it is carried over.
The recipient shall not be entitled to reimbursement if a continuation
award is not made. Recipients may be requested to provide information
with regard to expenditures in the progress report covering the
previously completed period. The recipient shall also include in the
Financial Status Report, for the previously completed period, the amount
of the unobligated balance as of the end of the funding period.
(d) Added funding not required. Nothing in paragraph (c) of this
section shall in any way require the DOE to increase the total amount
obligated for the project.
(e) Adjustments. Whenever DOE adjusts the amount of an award under
this subpart, it shall also make an appropriate upward or downward
adjustment to the amount of required cost sharing in order that the
adjusted award maintain any required percentage of DOE and non-Federal
participation in the costs of the project.
(47 FR 44091, Oct. 5, 1982, as amended at 51 FR 39367, Oct. 28, 1986.
Redesignated and amended at 53 FR 8047, Mar. 11, 1988; 54 FR 41948,
Oct. 13, 1989)
10 CFR 600.33 Patents, data, and copyrights.
(a) General. Grants shall be awarded and administered by DOE in
compliance with the patent, data, and copyright provisions of this
section, 41 CFR part 9-9 and, for grants to small business firms and
domestic nonprofit organizations, with OMB Circular A-124, which
contains the definitions of ''small business firm'' and ''nonprofit
organization'' applicable to this section. DOE shall specify, in each
award, the applicable patent, data, and copyright provisions.
(b) Required clauses. DOE shall determine which of the clauses
listed in this paragraph or in 41 CFR part 9-9 applies, based on DOE
review of the application, other information submitted by the applicant,
and any negotiations. These clauses may be modified by DOE Patent
Counsel, in accordance with the procedures of 41 CFR part 9-9, for a
particular grant or, in the case of a class waiver of patent rights
under 41 CFR part 9-9, for a class of grants such as those for the
''Appropriate Technology'' program and the program for development of
inventions referred to DOE by the National Bureau of Standards under
Sec. 14 of the Federal Non-Nuclear Energy Research and Development Act
of 1974.
(1) Patent Rights (Small Business Firm or Nonprofit Organization).
This clause shall apply to grants to small business firms and domestic
nonprofit organizations where such grants have as a purpose the conduct
of experimental, developmental, demonstration, or research work and
where the small business firm or domestic nonprofit organization states
in writing that it qualifies as a small business firm or domestic
nonprofit organization. In exceptional circumstances, DOE may, as
determined by Patent Counsel, use a patent rights clause other than the
clause specified in this paragraph (b)(1).
(a) Definitions. (1) ''Invention'' means any invention or discovery
which is or may be patentable or otherwise protectable under Title 35 of
the United States Code (USC).
(2) ''Subject invention'' means any invention of the grantee
conceived or first actually reduced to practice in the performance of
work under this grant.
(3) ''Practical Application'' means to manufacture in the case of a
composition or product, to practice in the case of a process or method,
or to operate in the case of a machine or system; and, in each case,
under such conditions as to establish that the invention is utilized and
that its benefits are, to the extent permitted by law or Government
regulations, available to the public on reasonable terms.
(4) ''Made'' when used in relation to any invention means the
conception or first actual reduction to practice of such invention.
(5) ''Small Business Firm'' means a small business concern as defined
at Section 2 of Pub. L. 85-536 (15 USC 632) and implementing
regulations of the Administrator of the Small Business Administration.
For the purpose of this clause, the size standard for small business
concerns involved in Government procurement, contained in 13 CFR
121.3-8, and in subcontracting, contained in 13 CFR 121.3-12, will be
used.
(6) ''Nonprofit Organization'' means a university or other
institution of higher education or an organization of the type described
in section 501(c)(3) of the Internal Revenue Code of 1954 (26 USC
501(c)) and exempt from taxation under Section 501(a) of the Internal
Revenue Code (26 USC 501(a)) or any nonprofit scientific or educational
organization qualified under a state nonprofit organization statute.
(7) ''Patent Counsel'' means the Department of Energy (DOE) patent
counsel assisting the DOE contracting activity.
(b) Allocation of Principal Rights. The grantee may retain the
entire right, title, and interest throughout the world to each subject
invention subject to the provisions of this clause and 35 USC 203. With
respect to any subject invention in which the grantee retains title, the
Federal Government shall have a nonexclusive, nontransferable,
irrevocable, paid-up license to practice or have practiced for or on
behalf of the United States the subject invention throughout the world.
(c) Invention Disclosure, Election of Title and Filing of Patent
Applications by Grantee. (1) The grantee will disclose each subject
invention to the Patent Counsel (with notification by the Patent Counsel
to the Contracting Officer) within two months after the inventor
discloses it in writing to grantee personnel responsible for the
administration of patent matters. The disclosure to the Patent Counsel
shall be in the form of a written report and shall identify the grant
under which the invention was made and the inventor(s). It shall be
sufficiently complete in technical detail to convey a clear
understanding, to the extent known at the time of the disclosure, of the
nature, purpose, operation, and the physical, chemical, biological or
electrical characteristics of the invention. The disclosure shall also
identify any publication, on sale or public use of the invention and
whether a manuscript describing the invention has been submitted for
publication and, if so, whether it has been accepted for publication at
the time of disclosure. In addition, after disclosure to the Patent
Counsel, the grantee will promptly notify the Patent Counsel of the
acceptance of any manuscript describing the invention or of any on sale
or public use planned by the grantee.
(2) The grantee will elect in writing whether or not to retain title
to any invention by notifying the Patent Counsel within twelve months of
disclosure to the grantee; provided that in any case where publication,
on sale or public use has initiated the one year statutory period
wherein valid patent protection can still be obtained in the United
States, the period for election of title terminates sixty days prior to
the end of the statutory period.
(3) The grantee will file its initial patent application on an
elected invention within two years after election or, if earlier, prior
to the end of any statutory period wherein valid patent protection can
be obtained in the United States after a publication, on sale, or public
use. The grantee will file patent applications in additional countries
within either ten months of the corresponding initial patent application
or six months from the date permission is granted by the Commissioner of
Patents and Trademarks to file foreign patent applications where such
filing has been prohibited by a Secrecy Order.
(4) Requests for extension of the time for disclosure to the Patent
Counsel, election, and filing, may, at the discretion of the Patent
Counsel be granted.
(d) Conditions When the Government May Obtain Title. (1) The grantee
will convey to DOE, upon written request, title to any subject
invention:
(i) If the grantee fails to disclose or elecet the subject invention
within the times specified in (c) above, or elects not to retain title.
(ii) In those countries in which the grantee fails to file patent
applications within the times specified in (c) above; provided,
however, that if the grantee has filed a patent application in a country
after the times specified in (c) above but prior to its receipt of the
written request of the Patent Counsel, the grantee shall continue to
retain title in that country; or
(iii) In any country in which the grantee decides not to continue the
prosecution of any application for, to pay the maintenance fees on, or
defend in a reexamination or opposition proceeding on, a patent on a
subject invention.
(e) Minimum Rights to Grantee. (1) The grantee will retain a
nonexclusive, royalty-free license throughout the world in each subject
invention to which the Government obtains title except if the grantee
fails to disclose the subject invention within the times specified in
(c) above. The grantee's license extends to its domestic subsidiaries
and affiliates, if any, within the corporate structure of which the
grantee is a part and includes the right to grant sublicenses of the
same scope to the extent the grantee was legally obligated to do so at
the time the grant was awarded. The license is transferable only with
the approval of DOE except when transferred to the successor of that
part of the grantee's business to which the invention pertains.
(2) The grantee's domestic license may be revoked or modified by DOE
to the extent necessary to achieve expeditious practical application of
the subject invention pursuant to an application for an exclusive
license submitted in accordance with 10 CFR 781. This license will not
be revoked in that field of use or the geographical areas in which the
grantee has achieved practical application and continues to make the
benefits of the invention reasonably accessible to the public. The
license in any foreign country may be revoked or modified at the
discretion of DOE to the extent the grantee, its licensees, or its
domestic subsidiaries or affiliates have failed to achieve practical
application in that foreign county.
(3) Before revocation or modification of the license, DOE will
furnish the grantee a written notice of its intention to revoke or
modify the license, and the grantee will be allowed thirty days (or such
other time as may be authorized by DOE for good cause shown by the
grantee) after the notice to show cause why the license should not be
revoked or modified. The grantee has the right to appeal, in accordance
with 10 CFR 781, any decision concerning the revocation or modification
of its license.
(f) Grantee Action to Protect Government's Interest. (1) The grantee
agrees to execute or to have executed and promptly deliver to the Patent
Counsel all instruments necessary to:
(i) Establish or confirm the rights the Government has throughout the
world in those subject inventions for which the grantee retains title,
and
(ii) Convey title to DOE when requested under (d) above and to enable
the Government to obtain patent protection throughout the world in that
subject invention.
(2) The grantee agrees to require, by written agreement, its
employees, other than clerical and nontechnical employees, to disclose
promptly in writing to personnel identified as responsible for the
administration of patent matters and in a format suggested by the
grantee each subject invention made under this grant in order that the
grantee can comply with disclosure provisions of (c) above and to
execute all papers necessary to file patent applications on subject
inventions. The disclosure format should require, as a minimum, the
information requested by (c)(1) above. The grantee shall instruct such
employees through the employee agreements or other suitable educational
programs on the importance of reporting inventions in sufficient time to
permit the filing of patent applications prior to U.S. or foreign
statutory bars.
(3) The grantee will notify the Patent Counsel of any decision not to
continue prosecution of a patent application, pay maintenance fees, or
defend in a reexamination or opposition proceeding on a patent, in any
country, not less than thirty days before the expiration of the response
period required by the relevant patent office.
(4) The grantee agrees to include, within the specification of any
United States patent application and any patent issuing thereon covering
a subject invention, the following statement, ''This invention was made
with Government support under (identify the grant) awarded by the
Department of Energy. The Government has certain rights in this
invention.''
(5) The grantee agrees to:
(i) Provide a report prior to the close-out of the grant listing all
subject inventions;
(ii) Provide notification of all contracts and subgrants under the
grant for experimental, developmental, demonstration, or research work,
the identity of the patent rights clause therein, and copy of each such
contract or subgrant upon request:
(iii) Provide promptly a copy of the patent application, filing date,
and serial number, and patent number and issue date for any subject
invention in any country in which the grantee has applied for a patent.
(g) Contracts and Subgrants Under the Grant. (1) The grantee will
include this clause, suitably modified to identify the parties, in all
contracts and subgrants under the grant, regardless of tier, for
experimental, developmental or research work to be performed by a small
business firm or a domestic nonprofit organization. The contractor or
subgrantee will retain all rights provided for the grantee in this
clause, and the grantee will not, as part of the consideration for
awarding the contract or subgrant, obtain rights in the contractor's or
subgrantee's subject inventions.
(2) The grantee will include in all other contracts or subgrants
under the grant, regardless of tier, for experimental, developmental,
demonstration, or research work the patent rights clause of 41 CFR
9-9.107-5(a) or 41 CFR 9-9.107-6, as appropriate, modified to identify
the parties.
(3) In the case of a contract or subgrant under the grant at any
tier, DOE, the contractor or subgrantee, and the grantee agree that the
mutual obligations of the parties created by the clause constitute a
contract between the contractor or subgrantee and DOE with respect to
those matters covered by this clause.
(h) Reporting on Utilization of Subject Inventions. The grantee
agrees to submit on request periodic reports no more frequently than
annually on the utilization of a subject invention or on efforts at
obtaining such utilization that are being made by the grantee or its
licensees or assignees. Such reports shall include information
regarding the status of development, date of first commercial sale or
use, gross royalties received by the grantee, and such other data and
information as DOE may reasonably specify. The grantee also agrees to
provide additional reports as may be requested by DOE in connection with
any march-in proceeding undertaken by DOE in accordance with paragraph
(j) of this clause. To the extent data or information supplied under
this section is considered by the grantee, its licensee or assignee to
be privileged and confidential and is so marked, DOE agrees that, to the
extent permitted by 35 U.S.C 202(c)(5), it will not disclose such
information to persons outside the Government.
(i) Preference for United States Industry. Notwithstanding any other
provision of this clause, the grantee agrees that neither it nor any
assignee will grant to any person the exclusive right to use or sell any
subject invention in the United States unless such person agrees that
any products embodying the subject invention or produced through the use
of the subject invention will be manufactured substantially in the
United States. However, in individual cases, the requirement for such
an agreement may be waived by DOE upon a showing by the grantee or its
assignee that reasonable but unsuccessful efforts have been made to
grant licenses on similar terms to potential licensees that would be
likely to manufacture substantially in the United States or that under
the circumstances domestic manufacture is not commercially feasible.
(j) March-in Rights. The grantee agrees that with respect to any
subject invention in which it has acquired title, DOE has the right in
accordance with the procedures in OMB Circular A-124 to require the
grantee, an assignee or exclusive licensee of a subject invention to
grant a nonexclusive, partially exclusive, or exclusive license in any
field of use to a responsible applicant or applicants, upon terms that
are reasonable under the circumstances, and if the grantee, assignee, or
exclusive licensee refuses such a request, DOE has the right to grant
such a license itself if DOE determines that:
(1) Such action is necessary because the grantee or assignee has not
taken, or is not expected to take within a reasonable time, effective
steps to achieve practical application of the subject invention in such
field of use;
(2) Such action is necessary to alleviate health or safety needs
which are not reasonably satisfied by the grantee, assignee, or their
licensees;
(3) Such action is necessary to meet requirements for public use
specified by federal regulations and such requirements are not
reasonably satisfied by the grantee, assignee, or licensees; or
(4) Such action is necessary because the agreement required by
paragraph (i) of this clause has not been obtained or waived or because
a licensee of the exclusive right to use or sell any subject invention
in the United States is in breach of such agreement.
(k) Special Provisions for Grants to Nonprofit Organizations. If the
grantee is a nonprofit organization, it agrees that:
(1) Rights to a subject invention in the United States may not be
assigned without the approval of DOE, except where such assignment is
made to an organization which has as one of its primary functions the
management of inventions and which is not, itself, engaged in or does
not hold a substantial interest in other organizations engaged in the
manufacture or sale of products or the use of processes that might
utilize the invention or be in competition with embodiments of the
invention (provided that such assignee will be subject to the same
provisions as the grantee);
(2) The grantee may grant exclusive licenses under United States
patents or patent applications in subject inventions to persons other
than small business firms for a period in excess of the earlier of:
(i) Five years from first commercial sale or use of the invention;
or
(ii) Eight years from the date of the exclusive license excepting
that time before regulatory agencies necessary to obtain premarket
clearance, unless on a case-by-case basis, DOE approves a longer
exclusive license. If exclusive field of use licenses are granted,
commercial sale or use in one field of use will not be deemed commercial
sale or use as to other fields of use, and a first commercial sale or
use with respect to a product of the invention will not be deemed to end
the exclusive period to different subsequent products covered by the
invention;
(3) The grantee will share any royalties collected on a subject
invention with the inventor; and
(4) The balance of any royalties or income earned by the grantee with
respect to subject inventions, after payment of expenses (including
payments to inventors) incidental to the administration of subject
inventions, will be utilized for the support of scientific research or
education.
(l) Communication. The DOE central point of contact for
communications or matters relating to this clause is the Patent Counsel.
(2) Patent Rights (Short Form). This clause shall apply to grants
awarded to grantees other than small business firms or domestic
nonprofit organizations, where such grants have as a purpose the conduct
of experimental, developmental, demonstration, or research work. Prior
to award or within 30 days after an award is signed by the DOE
Contracting Officer, or such longer period as may be authorized by the
Patent Counsel for good cause shown in writing by the applicant or
grantee, the applicant or grantee may petition DOE for an advance waiver
of the Government's rights to inventions conceived or first actually
reduced to practice under the grant in accordance with 41 CFR part 9-9.
DOE shall consider and dispose of any such request in accordance with
the waiver provisions of 41 CFR part 9-9. If a waiver is granted, the
appropriate waiver clause shall be substituted for the Patent Rights
(Short Form) clause. DOE also may authorize an advance waiver for a
class of awards when appropriate and shall specify the applicable patent
rights clause in every award covered by such a waiver.
(a) Definitions. (1) Subject invention means any invention or
discovery of the grantee conceived or first actually reduced to practice
in the course of or under this grant and includes any art, method,
process, machine, manufacture, design, or composition of matter, or any
new and useful improvement thereof, or any variety of plants, whether
patented or unpatented, under the patent laws of the United States of
America or any foreign country.
(2) Patent Counsel means DOE Patent Counsel assisting the procuring
activity.
(b) Invention disclosures and reports. (1) The grantee shall furnish
the Patent Counsel (with notification by Patent Counsel to Contracting
Officer):
(i) A written report containing full and complete technical
information concerning each subject invention within 6 months after
conception or first actual reduction to practice but in any event prior
to any sale, public use, or public disclosure of such invention known to
the grantee. The report shall identify the grant and inventor and shall
be sufficiently complete in technical detail and appropriately
illustrated by sketch or diagram to convey to one skilled in the art to
which the invention pertains, a clear understanding of the nature,
purpose, operation and, to the extent known, the physical, chemical,
biological or electrical characteristics of the invention;
(ii) Upon request, but not more than annually, interim reports on a
DOE-approved form listing subject inventions for that period and
certifying that all subject inventions have been disclosed or that there
were no such inventions; and
(iii) A final report on a DOE-approved form within 3 months after
completion of the grant work listing all subject inventions and
certifying that all subject inventions have been disclosed or that there
were no such inventions.
(2) The grantee agrees that the Government may duplicate and disclose
subject invention disclosures and all other reports and papers furnished
or required to be furnished pursuant to the grant.
(c) Allocation of principal rights. (1) Assignment to the
Government.
The grantee agrees to assign to the Government the entire right,
title, and interest throughout the world in and to each subject
invention, except to the extent that rights are retained by the grantee
under paragraphs (c)(2) and (d) of this clause.
(2) Greater rights determination. The grantee, or the
employee-inventor with authorization of the grantee, may request greater
rights than the nonexclusive license and the foreign patent rights
provided in paragraph (d) of this clause on identified inventions in
accordance with the procedure and criteria of 41 CFR 9.109-6. A request
for a determination of whether the grantee or the employee-inventor is
entitled to retain such greater rights must be submitted to the Patent
Counsel (with notification by Patent Counsel to the Contracting Officer)
at the time of the first disclosure of the invention pursuant to
paragraph (b)(1) of this clause or not later than 9 months after
conception or first actual reduction to practice, whichever occurs
first, or such longer period as may be authorized by the Patent Counsel
(with notification by Patent Counsel to the Contracting Officer) for
good cause shown in writing by the grantee. The information to be
submitted for greater rights determination is specified in 41 CFR
9-9.109-6(e).
(d) Minimum rights to the Grantee. The Grantee reserves a revocable,
nonexclusive, paid-up license in each patent application filed in any
country on a subject invention and any resulting patent in which the
Government acquires title. Revocation shall be in accordance with the
procedures of paragraphs (c)(2) and (3) of the clause in 41 CFR
9-9.107-5(a). The grantee also has the right to request foreign rights
in accordance with the procedures of paragraph (c)(4) of the clause in
41 CFR 9-9.107-5(a).
(e) Employee and contractor or subgrantee agreements. Unless
otherwise authorized in writing by the Contracting Officer, the grantee
shall:
(1) Obtain patent agreements to effectuate the provisions of the
Patent clause from all persons who perform any part of the work under
this grant except nontechnical personnel, such as clerical employees and
manual laborers.
(2) The grantee shall include this clause or the Patent Rights clause
of 41 CFR 9-9.107-5(a) or the clause of 600.118(b)(1), as appropriate,
modified to identify the parties in any contract or subgrant hereunder
having as a purpose the conduct of experimental, research, development,
or demonstration work; and
(3) Promptly notify the Contracting Officer in writing upon the award
of any contract or subgrant containing a Patent Rights clause by
identifying the contractor or subgrantee, the work to be performed under
the contract or subgrant, and dates of award and estimated completion.
Upon the request of the Contracting Officer, the grantee shall furnish a
copy of the contract or subgrant to such requestor.
(f) Atomic energy. (1) No claim for pecuniary award or compensation
under the provisions of the Atomic Energy Act of 1954, as amended, shall
be asserted by the grantee or its employees with respect to any
inventions or discovery made or conceived in the course of or under this
grant.
(2) Except as otherwise authorized in writing by the Contracting
Officer, the grantee will obtain patent agreements to effectuate the
provisions of paragraph (f)(1) of the clause from all persons who
perform any part of the work under this grant except nontechnical
personnel, such as clerical employees and manual laborers.
(g) Publication. In order that information concerning scientific or
technical developments conceived or first actually reduced to practice
in the course of or under the grant is not prematurely published so as
to adversely affect patent interest of DOE, the grantee agrees to submit
to the Patent Counsel for patent review a copy of each paper 60 days
prior to its intended publication date. The grantee may publish such
information after expiration of a 60-day period following such
submission or prior thereto if specifically approved by the Patent
Counsel, unless the grantee is informed (in writing within the 60-day
period) that in order to protect patentable subject matter, publication
must further be delayed. In this event, publication shall be delayed up
to 100 days beyond the 60-day period or such longer period as mutually
agreed to.
(3) Rights in Technical Data (Short Form). This clause shall apply
to all grants other than those having as a purpose the conduct of a
conference, symposium, or training. However, this clause does not
provide protection for proprietary data. If proprietary data may be
utilized under a grant, other appropriate technical data clauses (as
provided in 48 CFR 952.227) may be included in the award.
(a) Definitions. The definitions of terms set forth in DEAR 927.401
apply to the extent these terms are used herein.
(b) Allocation of rights. (1) The Government shall have:
(i) Unlimited rights in technical data first produced or specifically
used in the performance of this grant.
(ii) The right of the Contracting Officer or his representatives to
inspect at all reasonable times up to three years after final payment
under this grant all technical data first produced or specifically used
in the grant (for which inspection the grantee or its contractor or
subgrantee shall afford proper facilities to DOE), and
(iii) The right to have any technical data first produced or
specifically used in the performance of this grant delivered to the
Government as the Contracting Officer may from time-to-time direct
during the progress of the work, or in any event as the Contracting
Officer shall direct upon completion or termination of this grant.
(2) The grantee shall have: The right to use for its private
purposes, subject to patent, security or other provisions of this grant,
technical data it first produces in the performance of this grant
provided the date requirements of this grant have been met as of the
date of the private use of such data. The grantee agrees that the to
extent it receives or is give access to proprietary data or other
technical, business of financial data in the form of recorded
information from DOE or a DOE contractor or subcontractor, the grantee
shall treat such data in accordance with any restrictive legend
contained thereon, unless use is specifically authority by prior written
approval of the Contracting Officer.
(c) Copyrighted material. (1) The grantee agrees to and does hereby
grant to the Government and to others acting on its behalf:
(i) A royalty-free, nonexclusive, irrevocable, world-wide license for
Governmental purposes to reproduce, distribute, display, and perform all
copyrightable material first produced or composed in the performance of
this grant by the grantee, its employees or any individual or concern
specifically employed or assigned to originate and prepare such material
and to prepare derivative works based thereon,
(ii) A license as aforesaid under any and all copyrighted or
copyrightable work not first produced or composed by the grantee in the
performance of this grant but which is incorporated in the material
furnished under the grant, provided that such license shall be only to
the extent the grantee now has, or prior to completion or close-out of
the grant, may acquire the right to grant such license without becoming
liable to pay compensation to others solely because of such grant.
(2) The grantee agrees that it will not knowingly include any
material copyrighted by others in any written or copyrightable material
furnished or delivered under this grant without a license as provided
for in paragraph (c)(1)(ii) of this section, or without the consent of
the copyright owner, unless it obtains specific written approval of the
Contracting Officer for the inclusion of such copyright material.
(4) Rights in Technical Data (Modified Short Form). This clause
shall apply to any grant having as a purpose the conduct of a
conference, a symposium, or training.
(1) The grantee grants to the Government a worldwide, royalty-free,
non-exclusive, irrevocable license to publish, duplicate, translate,
perform, exhibit and dispose of and to have others to do so, technical
information or data including copyrightable material first produced by
the grantee, under the grant.
(2) DOE has the right to require delivery of all technical
information or data first produced by the grantee under this grant and
all conference papers of a scientific or technical nature. The grantee
agrees not to include in the technical information or data, or
scientific or technical conference papers delivered under the grant, any
material copyrighted by the grantee or any material including scientific
or technical conference papers copyrighted by others without first
obtaining without cost a license therein for the benefit of the
Government of the same scope as set forth in paragraph (1) above. If,
nevertheless, there must be included in the technical information or
data, or scientific or technical conference papers to be delivered,
copyrighted material for which a license of the above scope cannot be
obtained, the grantee shall obtain the written authorization of DOE to
include such material prior to physical delivery to DOE.
(5) Authorization and Consent. This clause shall apply to any grant
under which experimental, developmental, demonstration, or research work
is to be performed within the United States, its possessions, or Puerto
Rico.
The Government hereby gives its authorization and consent for all use
and manufacture of any invention described in and covered by a patent of
the United States in the performance of this grant or any part hereof or
any amendment hereto or any contract hereunder (including all lower-tier
subcontracts).
(6) Notice and Assistance. This clause shall be applied to any grant
in excess of $10,000 for construction, experimental, developmental,
demonstration, or research work which is to be performed within the
United States, its possessions, or Puerto Rico.
The provisions of this clause shall be applicable only if the amount
of this grant exceeds $10,000.
(a) The grantee shall report to the Contracting Officer, promptly and
in reasonable written detail, each notice of claim of patent or
copyright infringement based on the performance of this grant of which
the grantee has knowledge.
(b) In the event of any claim or suit against the Government on
account of any alleged patent or copyright infringement arising out of
the performance of this grant or out of the use of any supplies
furnished or work or services performed hereunder, the grantee shall
furnish to the Government when requested by the Contracting Officer, all
evidence and information in possession of the grantee pertaining to such
suit or claim. Such evidence and information shall be furnished at the
expense of the Government except where the grantee has agreed to
indemnify the Government.
(c) This clause shall be included in all contracts and subgrants
under the grant.
(c) Reporting of royalties. In order that DOE may be informed
regarding royalty payments to be made by a grantee in connection with
any grant where the amount of the royalty payments is included in the
approved budget or is to be reimbursed by the Government, the applicant
shall provide:
(1) Information concerning the royalty payments expected to be made
under the grant, if awarded, together with the names of the licensors,
and either the patent numbers involved or such other information as will
permit identification of the patents and patent applications as well as
the basis on which the royalties are to be paid; or
(2) A certification that the proposed budget includes no amount
representing any royalty that would be paid by the grantee directly to
others in connection with the performance of the award. If the
information or certification specified in paragraphs (c)(1) and (c)(2)
is not available at the time of award, DOE shall include the Reporting
of Royalties clause in any applicable grant award.
If this grant is in an amount which exceeds $10,000 and if any
royalty payments are directly involved in the grant or are reflected in
the amount of the grant award, the grantee agrees to report in writing
to the Patent Counsel (with notification by Patent Counsel to the
Contracting Officer) during the performance of this grant and prior to
its completion or closeout, the amount of any royalties or other
payments paid or to be paid by it directly to others in connection with
the performance of this grant together with the names and addresses of
licensors to whom such payments are made and either the patent numbers
involved or such other information as will permit the identification of
the patents or other basis on which the royalties are to be paid. The
approval of DOE of any individual payments or royalties shall not stop
the Government at any time from contesting the enforceability, validity,
or scope of, or title to, any patent under which a royalty or payments
are made.
(d) Subgrants and contracts under grants or subgrants. The grantee
shall include the applicable patent rights and rights in technical data
clauses and the clauses of paragraphs (b)(5), (b)(6), and (c) of this
section, as applicable, in any subgrant or contract.
(Secs. 644 and 646, Pub. L. 95-91, 91 Stat. 599, (42 U.S.C. 7254 and
7256); Pub. L. 95-224, 92 Stat. 3 (41 U.S.C. 501))
(47 FR 44091, Oct. 5, 1982, as amended at 49 FR 31392, Aug. 7, 1984.
Redesignated at 53 FR 8047, Mar. 11, 1988)
10 CFR 600.34 New restrictions on lobbying.
Each DOE solicitation involving a new Federal commitment in excess of
$100,000 shall provide a full text copy of the certification requirement
set forth in appendix A of 10 CFR part 601 and Disclosure of Lobbying
Activities Standard Form -- LLL. DOE Contracting Officers shall assure
that any award in excess of the $100,000 threshold shall contain, as a
term and condition of award, the requirement to comply with the
certification and disclosure provision of 10 CFR 601.110. Upon receipt,
the original copy of each disclosure form shall be kept with the
official award file. One copy of each form shall be forwarded to the
Director or designee.
(55 FR 6746, Feb. 26, 1990)
10 CFR 600.34 Subpart B -- Grants
Source: 47 FR 44091, Oct. 5, 1982, unless otherwise noted.
10 CFR 600.100 Scope and applicability.
(a) This subpart establishes administrative rules for grants and
cooperative agreements and subawards to other than State, local, and
Indian tribal governments. This subpart implements OMB Circular A-110
and the Federal cost principles. Administrative rules for grants and
cooperative agreements and subawards to State, local and Indian tribal
governments are prescribed in subpart E.
(b) The requirements of this subpart shall apply as indicated in
600.2. In addition, the noncompliance procedures of 600.121 and 600.29
and the closeout procedures of 600.123 shall apply to any active grant
and, in the case of the closeout procedures, to any terminated or
expired grant which has not been closed out prior to the effective date
of this part, provided, however, that any noncompliance determination
involving an active grant is initiated on or after the effective date of
this part. With the concurrence of the affected party or parties, DOE
may follow the procedures set forth in 600.29 in any suspension or
termination action initiated before the effective date of this part.
(47 FR 44091, Oct. 5, 1982, as amended at 50 FR 42356, Oct. 18, 1985;
51 FR 4297, Feb. 4, 1986; 53 FR 8046, Mar. 11, 1988)
10 CFR 600.101 Definitions.
For purposes of this subpart --
Closeout of a grant means the process by which DOE determines that
all applicable administrative actions and all required work under the
grant have been completed by the grantee and by DOE.
Cognizant agency means the Federal department or agency responsible
for negotiating indirect cost rates, conducting audits, correcting
systems deficiencies, and resolving questioned costs of a particular
grantee organization.
Cost-reimbursement contract means a contract, or subcontract under a
cost-reimbursement contract, under which payment is made on the basis of
allowable costs incurred during performance up to a maximum amount set
forth in the contract or subcontract.
Direct cost means any cost that can be specifically identified with a
particular project or activity, including salaries, travel, equipment
and supplies directly benefiting the project or activity.
Formula grant means a grant DOE is required to make to any one or
more eligible applicants who meet statutory prerequisites for award.
The amount of a formula grant award is determined in accordance with a
formula specified either in the authorizing statute or in implementing
program rules.
Grant means an award of financial assistance, including cooperative
agreements, in the form of money or property in lieu of money, by the
Federal Government to an eligible recipient.
Grantee means the government, nonprofit corporation, individual, or
other entity to whom DOE awards a grant and who is financially
accountable to DOE for the use of the funds awarded and legally
responsible for the performance of the project or activity(ies). An
organizational grantee shall be the entire organization even if the
activity or project is performed by a component part of the
organization.
Indirect cost means a cost incurred by an organization for common or
joint objectives and which cannot be identified specifically with a
particular project or activity.
Indirect cost rate means the ratio, expressed as a percentage, of an
organization's total indirect costs to its direct cost base as specified
in the applicable cost principles.
In-kind contribution means property, services, or other noncash
contribution, made by the grantee, subgrantee, or non-Federal third
party, which directly benefits and can be specifically identified with a
project or activity, and to which a value is assigned for purposes of
cost sharing.
Small entity means a ''small business'' (as defined in 600.3),
''small governmental jurisdiction,'' or ''small organization.''
Small governmental jurisdiction means a government of a city, county,
town, township, village, school district, or special district with a
population of less than fifty thousand.
Small organization means any not-for-profit enterprise which is
independently owned and operated and is not dominant in its field.
Subgrant means an award of funds or other type of financial
assistance authorized by statute by a grantee to an eligible
subrecipient.
(47 FR 44091, Oct. 5, 1982, as amended at 53 FR 8046, Mar. 11, 1988)
10 CFR 600.102 Grant applications.
(a) General. An application for a grant shall be on the form or in
the format specified in a program rule, in the solicitation, or in this
part (see 600.10). DOE may also require applicants to complete --
(1) The Notice of Energy RD&D Project (DOE Form 538) if the
application is for a research, development, or demonstration project;
or
(2) The Management Summary Report (EIA-459E) or the Milestone Plan
(EIA-459B) as a baseline plan in accordance with the Uniform Reporting
System for Federal Assistance (Grants and Cooperative Agreements)
(DOE/MA-0001) if required by program rule or the solicitation. If a
solicitation other than a program rule requires the use of one or both
of these forms, the solicitation shall contain an explanation of how the
information to be provided relates to the objectives of the program.
(b) Budgetary information. DOE may request and the applicant shall
submit the minimum budgetary information necessary to evaluate the costs
of the proposed project.
(1) Applicants for research grants, other than State, local, or
Indian tribal governments, will employ DOE budget forms ERF 4620.1 and
ERF 4620.1A. All other applicants shall use the budget formats
duplicated in the DOE Uniform Reporting System for Federal Assistance.
(2) DOE may, subsequent to receipt of an application, request
additional information from an applicant when necessary for
clarification or to make informed preaward determinations under
600.103.
(c) Continuation and renewal applications. DOE may require that an
application for a continuation or renewal award (see 600.31 (b) and
(c)) be made in the format or on the forms authorized by paragraphs (a)
and (b) of this section. However, when applying for a continuation
award, grantees that are State governments, local governments, or Indian
tribal governments are required to submit only those pages of the
application form that contain information different from that provided
in the original application.
(Approved by the Office of Management and Budget under control
numbers 0348-0005 -- 0348-0009)
(47 FR 44091, Oct. 5, 1982, as amended at 51 FR 39366, Oct. 28, 1986;
53 FR 8046, Mar. 11, 1988; 54 FR 23959, June 5, 1989)
10 CFR 600.103 Cost determinations.
(a) General. Except as otherwise specified by the governing program
statute, program rule, or other terms and conditions of an award, costs
allowable under DOE grant awards shall be determined in accordance with
the applicable cost principles cited in paragraph (b) of this section.
As part of an acceptable financial management system under 600.109(b),
grantees and subgrantees must have procedures for determining the
reasonableness, allowability, and allocability of costs in accordance
with the applicable Federal cost principles and the terms and conditions
of the award.
(b) Cost principles. The following cost principles shall apply to
grants as specified.
(1) OMB Circular A-21 -- Cost Principles Applicable to Grants,
Contracts and Other Agreements with Institutions of Higher Education.
(2) OMB Circular A-87 -- Cost Principles Applicable to Grants,
Contracts and Other Agreements with State and Local Governments. These
cost principles shall also apply to grants to Indian tribal governments
and to foreign governments to the extent appropriate.
(3) OMB Circular A-122 -- Cost Principles Applicable to Grants,
Contracts and Other Agreements with Nonprofit Organizations. Nonprofit
organization in this context refers to a private, nonprofit organization
other than a nonprofit institution of higher education or hospital.
However, a few nonprofit organizations, as specifically listed in
Attachment C to OMB Circular A-122, are subject to the commercial cost
principles as specified in paragraph (b)(5) of this section. OMB
Circular A-122 shall also apply to grants to individuals.
(4) 45 CFR part 74, appendix E, Cost Principles for Hospitals.
(5) 48 CFR 31.2 (Federal Acquisition Regulation) as modified by 48
CFR 931.2 (DOE Acquisition Regulations) for grants to for-profit
organizations (other than for-profit hospitals) including corporations,
partnerships, and sole proprietorships.
(6) Before a recipient may make changes in the following areas on
research financial assistance awards, the written approval of the
cognizant Contracting Officer at the DOE is required:
(i) Changes in objectives or scope,
(ii) Temporary replacement or change of principal investigator or
change of key personnel, and
(iii) Change of the institution to which the award is to be made.
All other Federal prior approval requirements, including those in OMB
Circulars A-21 and A-110, are waived for research, except as provided in
600.125 for SBIR awards. The recipient may maintain such internal
prior approval systems as it considers necessary.
(c) Subgrantees and contractors. For subgrants, the grantee shall
use the cost principles cited in this section that apply to the
subgrantee. The grantee or subgrantee shall specify in any
cost-reimbursement contract the applicable cost principles, which shall
be the cost principles cited in this section that apply to the
contractor.
(d) Deviations. Unless required by program statute, the awarding
party may deviate from the requirements of the cost principles only
after obtaining approval in accordance with 600.4.
(e) Approval requirements. Costs that, by the terms of the cost
principles or other terms or conditions of the award, subaward, or
contract, require the approval of the awarding party shall be considered
to have met the requirement for approval if they are included in the
approved direct cost budget or in an approved indirect cost amount,
proposal, or cost allocation plan. If the costs are to be charged as
direct costs and they are not in the approved budget, specific prior
written approval must be obtained from the designated DOE Contracting
Officer, the grantee, or the subgrantee, as appropriate, before such
costs are incurred by the grantee, subgrantee, or cost-type contractor
(see 600.114). No approval may be given which is inconsistent with the
purpose of the grant or which deviates without authorization from the
terms and conditions of the DOE award (see 600.4). See 600.114 for
procedures for requesting prior approval under this paragraph. See
paragraph (f) of this section with respect to indirect costs.
(f) Indirect costs. Unless restricted by Federal statute or program
rule, DOE shall provide for the reimbursement of appropriate indirect
costs.
(1) DOE shall include an amount for indirect costs in an award only
if the applicant requests reimbursement of such costs and --
(i) Submits evidence that the applicant has been assigned to
cognizant Federal agency responsible for establishment of indirect cost
rates and indicates or provides evidence that --
(A) A current agreement containing an applicable approved indirect
cost rate(s) covering all or part of the budget period for which DOE may
provide funding has been established; or
(B) An indirect cost proposal has been submitted to the cognizant
agency in order to establish an applicable approved indirect cost
rate(s) covering all or part of the budget period for which DOE may
provide funding; or
(C) An indirect cost proposal covering all or part of the budget
period and applicable to the activities for which DOE may provide
funding will be submitted to the cognizant agency for approval no later
than three months after the beginning date of the initial budget period
of the DOE award or, for subsequent budget periods, in accordance with
any schedule established by the cognizant agency; or
(ii) If not assigned to a cognizant agency, the applicant includes,
in the application, data that is current, complete, accurate, and
sufficient to allow the DOE Contracting Officer to determine a rate(s)
for indirect costs. If the total approved budget will not exceed
$100,000 or if the amount requested for indirect costs does not exceed
$5,000, DOE may waive the requirement for negotiation of a rate and, in
lieu thereof, provide a reasonable allowance for such costs.
(2) Indirect cost proposals shall be prepared and submitted in
accordance with the applicable Federal cost principles and instructions
from the cognizant agency or from DOE, as appropriate.
(3) If a subgrant or contract under a grant or subgrant provides for
the payment of indirect costs, the grantee or subgrantee shall be
responsible for negotiating appropriate indirect costs, using the cost
principles applicable to the subgrantee or contractor, unless the
subgrantee or contractor has negotiated an applicable rate directly with
DOE or another Federal department or agency. DOE may review and audit
the procedures a grantee or subgrantee uses in conducting indirect cost
negotiations.
(g) Preaward costs -- (1) All Awards. Any preaward expenditures are
made at the recipient's risk. Approval of preaward costs by the
Contracting Officer or incurrence by the recipient does not impose any
obligation on DOE if an award is not subsequently made, or if an award
is made for a lesser amount than the recipient expected.
(2) Research awards only. (i) For new or renewal research awards,
recipients may incur preaward costs up to ninety (90) days prior to the
effective date of the award. Preaward costs for periods preceding 90
days prior to the effective date of the award are allowable only if
approved in writing, prior to incurrence, by a DOE Contracting Officer.
(ii) For continuation awards within a multiple year project, prior to
receipt of continuation funding, preaward expenditures by recipients are
not subject to the limitation or approval requirements of paragraph
(g)(2)(i) of this section.
(iii) Preaward costs, as incurred by the recipient, must be necessary
for the effective and economical conduct of the project, and the costs
must be otherwise in accordance with these rules and may not include
those specific costs for which agency prior approval is required under
the circulars. In any instance in which the circulars permit the agency
to grant prior approval to the recipient, it is the Department's
intention to do so.
(3) Other than research awards. All other financial assistance
recipients may incur preaward costs only if the expenditure is approved
in writing, prior to incurrence, by the Contracting Officer. In the
case of governmental entities, the approval must additionally be
reflected on the award notice.
(h) Fee or profit. No increment above cost may be paid to a grantee
or subgrantee under a DOE grant or subgrant, except for SBIR recipients
as provided in 600.125(d)(3). A fee or profit may be paid to a
contractor providing goods or services under a contract with a grantee
or subgrantee.
(i) Interest penalties for late payment under a contract shall not be
an allowable cost of a grant or subgrant (see 600.119(e)).
(Secs. 644 and 646, Pub. L. 95-91, 91 Stat. 599 (42 U.S.C. 7254 and
7256); Pub. L. 95-224, 92 Stat. 3 (41 U.S.C. 501))
(47 FR 44091, Oct. 5, 1982, as amended at 49 FR 31392, Aug. 7, 1984;
51 FR 39366, Oct. 28, 1986; 53 FR 8046, Mar. 11, 1988; 54 FR 41948,
Oct. 13, 1989; 57 FR 4, Jan. 2, 1992)
Effective Date Note: At 57 FR 4, Jan. 2, 1992, 600.103 was amended
by revising paragraphs (b)(6) and (h) and by changing ''application'' to
''applicant'' in paragraph (f)(1), effective February 3, 1992. For the
convenience of the user, the superseded text appears as follows.
600.103 Cost determinations.
(b) * * *
(6) Before a recipient may make changes in the following areas on
research financial assistance awards, the written approval of the
cognizant Contracting Officer at the DOE is required: (i) Changes in
objectives or scope, (ii) temporary replacement or change of principal
investigator or change of key personnel, and (iii) change of the
institution to which the award is to be made. All other Federal prior
approval requirements, including those in OMB Circulars A-21 and A-110,
are waived for research awards. The recipient may maintain such
internal prior approval systems as it considers necessary.
(h) Fee or profit. No increment above cost may be paid to a grantee
or subgrantee under a DOE grant or subgrant. A fee or profit may be
paid to a contractor providing goods or services under a contract with a
grantee or subgrantee.
10 CFR 600.105 Special restrictive conditions of award.
(a) General. DOE may, in accordance with this section and without
following the deviation procedures of 600.4, use award conditions which
are more restrictive than those specified in this subpart.
(b) DOE procedures. Before or at the time of award, DOE shall advise
the applicant/grantee whenever DOE has determined that the
applicant/grantee is not responsible on the basis of one or more of the
following:
(1) Financial instability;
(2) A history of poor performance; or
(3) A management system which does not meet the requirements of this
subpart.
DOE shall provide the applicant/grantee with an explanation of why
any special restrictive condition is necessary and shall indicate what
corrective action must be taken. If the applicant/grantee is one
covered by OMB Circular A-110 and if the condition is more restrictive
than is allowed by those Circulars, the Director or his or her designee
shall notify OMB and other interested parties.
(c) Subgrantees. A grantee may place a special restrictive
condition, as specified in paragraphs (a) and (b) of this section, in a
subgrant award. In any such case, the grantee must notify DOE in
writing within 15 days of the subgrant award. DOE shall decide whether
to notify OMB and other interested parties.
(47 FR 44091, Oct. 5, 1982, as amended at 53 FR 8046, Mar. 11, 1988)
10 CFR 600.107 Cost sharing.
(a) General. DOE shall specify in the solicitation or in the program
rule, if any, any cost sharing requirement. The award document shall be
specific as to whether the cost sharing is based on a minimum amount for
the recipient or on a percentage of total costs.
(b) Nonstatutory cost sharing. If DOE requires that a grantee
provide cost sharing which is not required by statute or which exceeds a
statutory minimum, DOE shall state in the program rule or solicitation
the reasons for requiring such cost sharing, recommended or required
levels of cost sharing, and the circumstances under which the
requirement for cost sharing may be waived or adjusted during any
negotiation.
(c) Negotiation. Whenever DOE negotiates the amount of cost sharing,
DOE may take into account such factors as the use of program income (see
600.113), patent rights, and rights in data. Foregone fee or profit
shall not be considered in establishing the extent of cost sharing.
(d) Composition and source of cost sharing. (1) Cost sharing may be
derived from any of the following --
(i) Costs incurred by the grantee (or subgrantee) whether or not they
require a cash outlay;
(ii) Cash contributed to the grantee or subgrantee(s) by non-Federal
public or private organizations and individuals; or
(iii) The value of goods, including the use of property, or services
donated to the grantee or subgrantee(s) by non-Federal public or private
organizations and individuals (third-party in-kind contributions).
(2) To be allowable as cost sharing, a cash or in-kind contribution
must:
(i) Be verifiable from the records of the grantee, subgrantees, or
third parties, as applicable. Such records must show how the value
placed on an in-kind contribution was determined (see paragraph (e) of
this section);
(ii) Not be included as a cost or contribution for satisfying a cost
sharing or matching requirement of another project or program receiving
Federal funding, whether as financial assistance, under a procurement
contract, or otherwise;
(iii) Be allowable under the terms and conditions of the award and
meet the applicable cost principle tests of allowability (see
600.103(b)); and
(iv) The source of the contribution may not be costs supported by
another Federal assistance award unless such use is permitted by Federal
statute. This restriction does not apply to:
(A) General program income, as defined in 600.113, earned by a
grantee or subgrantee under a contract under another Federal assistance
award; and
(B) General revenue sharing funds under 31 U.S.C. 122 et seq. or
countercyclical revenue sharing funds under 42 U.S.C 6721 et seq.
(3) General program income may be used to meet a cost sharing
requirement of the grant under which the income was earned only if such
use is authorized by the award (see 600.113(e)).
(e) Valuation of in-kind contributions. Any grantee or subgrantee
shall determine the value of services or property donated by non-Federal
third parties in accordance with OMB Circular A-110, Attachment E,
Paragraph 5.
(47 FR 44091, Oct. 5, 1982, as amended at 53 FR 5262, Feb. 22, 1988;
53 FR 8046, Mar. 11, 1988)
10 CFR 600.109 Financial management systems.
(a) General. Except as provided in paragraph (c) of this section and
600.125 of this subpart, grantees and subgrantees shall have financial
management systems which meet the minimum standards set forth in
paragraph (b) of this section.
(b) Minimum standards. At a minimum, grantee and subgrantee
financial management systems must provide for:
(1) Accurate, current, and complete disclosure of the financial
results of each project (see 600.116 for financial reporting
requirements for grantees).
(2) Records that identify adequately the source and application of
funds for the financially assisted project, including information
pertaining to Federal awards, subgrant awards, authorizations,
obligations, unobligated balances, assets, outlays, income, and
liabilities.
(3) Effective control over and accountability for all funds,
property, and other assets. Grantees and subgrantees shall adequately
safeguard all such funds, property, and assets and shall assure that
they are used solely for authorized purposes. The requirements of this
paragraph (b)(3) with respect to control and safeguarding of property
shall apply to all property, including exempt property, which is
required to be managed in accordance with 600.117.
(4) Comparison of actual expenditures with approved budget amounts
for each grant or subgrant, and, if required by the terms and conditions
of the award, the relation of financial information to performance and
unit cost data.
(5) Procedures to minimize the time elapsing between the transfer of
funds from the U.S. Treasury and their disbursement for grant or
subgrant purposes (see 600.112).
(6) Procedures for determining the reasonableness, allowability, and
allocability of costs in accordance with the provisions of the
applicable Federal cost principles and other terms and conditions of the
award or subaward.
(7) Accounting records that are supported by source documentation,
such as cancelled checks, paid bills, payrolls, contract documents, etc.
(8) A systematic method to assure timely and appropriate resolution
and settlement of audit findings and recommendations pertaining to
subrecipients.
(c) Individuals. Individuals whose financial management systems do
not meet the minimum standards of paragraph (b) of this section shall
maintain a separate bank account for deposit of grant or subgrant funds.
Disbursements by the grantee or subgrantee from this account shall be
supported by source documentation such as cancelled checks, paid bills,
receipts, payrolls, etc.
(d) System reviews. The awarding party may review the adequacy of an
applicant's financial management system as part of a preaward review or
at any time subsequent to award (see 600.30 and 600.120). The
awarding party shall rely, to the extent possible, on readily available
sources of information, such as previous audit reports, to make any
preaward assessment of the adequacy of the applicant's financial
management system. The awarding party shall seek additional information
from the applicant or perform an on-site preaward review only if
necessary to assure prudent management of DOE funds.
(47 FR 44091, Oct. 5, 1982, as amended at 50 FR 42356, Oct. 18, 1985;
51 FR 4297, Feb. 4, 1986; 53 FR 8047, Mar. 11, 1988; 57 FR 4, Jan. 2,
1992)
Effective Date Note: At 57 FR 4, Jan. 2, 1992, 600.109 was amended
by revising paragraph (a), effective February 4, 1992. For the
convenience of the user, the superseded text appears as follows.
600.109 Financial management systems.
(a) General. Except as provided in paragraph (c) of this section,
grantees and sugrantees shall have financial management systems which
meet the minimum standards set forth in paragraph (b) of this section.
10 CFR 600.110 Cash depositories.
Grantees and subgrantees shall comply with the standards governing
cash depositories for advance payments (see 600.112(b)) contained in
Attachment A of OMB Circular A-110.
(47 FR 44091, Oct. 5, 1982, as amended at 53 FR 8047, Mar. 11, 1988)
10 CFR 600.111 Bonding and insurance.
(a) The grantee or subgrantee shall use its regular bonding and
insurance requirements unless the awarding party specifies either or
both of the following requirements in the award:
(1) If the cost of a contract or subcontract for construction or
facility improvement, including alteration and renovation of real
property, exceeds $100,000, a bid guarantee, performance bond, and
payment bond, as defined in Attachment B of OMB Circular A-110, shall be
required.
(2) A nongovernmental grantee or subgrantee may be required to obtain
or acquire additional fidelity bond coverage if the risk without such
coverage would be unacceptable.
(b) Any bonds required under paragraph (a)(1) or (a)(2) of this
section shall be obtained from companies holding certificates of
authority as acceptable sureties (31 CFR part 223).
(47 FR 44091, Oct. 5, 1982, as amended at 53 FR 8047, Mar. 11, 1988)
10 CFR 600.112 Payment.
(a) Scope. This section prescribes the basic standard and the
methods under which the DOE will make payments to grantees, and grantees
will make payments to subgrantees and contractors.
(b) Basic standard. Methods and procedures for payment shall
minimize the time elapsing between the transfer of funds and
disbursement by the grantee or subgrantee, in accordance with Treasury
regulations at 31 CFR part 205.
(c) Advances. Grantees and subgrantees shall be paid in advance,
provided that their financial management systems meet the standards for
fund control and accountability specified in 600.109(b), including
procedures or planned procedures that will minimize the time elapsing
between the transfer of the funds from the U.S. Treasury and their
disbursement by the grantee or subgrantee, except as provided in
600.125(b)(5).
(d) Reimbursement. Reimbursement shall be the preferred method when
the requirements in paragraph (c) of this section are not met. The DOE
may also use the reimbursement method if the major portion of the
project or activity will be financed by private financing or Federal
loans, with the DOE grant representing 25 percent or less of the total
cost.
(e) Conversion from advance payment method. The DOE may convert a
grantee from advance payment to reimbursement whenever the grantee no
longer meets the criteria for advance payment specified in paragraph (c)
of this section. Any such conversion may be accomplished only after the
DOE has advised the grantee in writing of the reasons for the proposed
action and has provided a period of at least 30 days within which the
grantee may take corrective action or provide satisfactory assurances of
its intention to take such action.
(f) Requests for payment. Grantees shall request payment on the
forms specified in 600.116.
(g) Withholding of payment. Unless otherwise required by statute,
DOE shall not withhold payment for proper charges unless:
(1) DOE has made a determination of noncompliance in accordance with
600.121. If DOE withholds payment without suspension or termination of
the grant, DOE shall release withheld payments to the grantee after
compliance is achieved. If the grant has been suspended or terminated,
payment adjustments shall be governed by 600.29; or
(2) The grantee owes money to the United States and collection of the
debt by withholding grant payments would not impair the accomplishment
of program objectives. Payment of the debt may also be accomplished by
accounting adjustments to cash balances in the possession of the grantee
for which the grantee is accountable to the Federal government.
(3) Before withholding any payment, DOE shall notify the grantee that
payments shall not be made for obligations incurred after a specified
date, which shall ordinarily be no sooner than 30 days from the date of
the notice, until the grantee corrects the noncompliance or pays the
indebtedness to the Federal government. (See also 600.121 for
notification of noncompliance.)
(h) Assignment of payments. (1) With prior DOE approval and in
accordance with written DOE instructions, a grantee may assign to a
bank, trust company or other financing institution, including any
Federal lending agency, reimbursement by Treasury check due from DOE
under the following conditions:
(i) The grant provides for reimbursement totaling $1,000 or more;
(ii) The assignment covers all amounts payable under the grant that
have not already been paid;
(iii) Reassignment is prohibited; and
(iv) The assignee files a written notice of grant payment assignment
and a true copy of the instrument of assignment with DOE.
(2) Any interest costs resulting from a loan obtained on the basis of
an assignment are unallowable charges to DOE grant funds or any required
cost sharing.
(i) Payments to subgrantees. Grantees shall observe the requirements
of this section in making or withholding payments to subgrantees except
that the forms used by grantees are not required to be used by
subgrantees when requesting advances or reimbursement.
(47 FR 44091, Oct. 5, 1982, as amended at 53 FR 8047, Mar. 11, 1988;
57 FR 4, Jan. 2, 1992)
Effective Date Note: At 57 FR 4, Jan. 2, 1992, 600.112 was amended
by revising paragraphs (a), (b), (c), and (d), redesignating paragraphs
(e) through (h) as paragraphs (f) through (i) and adding a new paragraph
(e), effective February 3, 1992. For the convenience of the user the
superseded text appears as follows.
600.112 Payment.
(a) General. The awarding party shall select the payment method
under a grant or subgrant with the objective of minimizing the time
elapsing between the transfer of funds from the U.S. Treasury and their
disbursement by the grantee or subgrantee for grant or subgrant
purposes. DOE shall use the appropriate advance payment method
described in paragraph (b) of this section in making payments to a
grantee except that payments to a foreign organization shall be made in
accordance with Department of Treasury policy applicable to such
transactions.
(b) Advance payment methods. Advance payments may be made either
through a letter of credit or by Treasury check.
(1) Letter of credit. A letter of credit is an instrument certified
by an authorized Federal official that authorizes a grantee to draw
funds needed for immediate disbursement in accordance with the
provisions of Treasury Circular 1075. The grantee must comply with
Treasury Circular 1075 guidelines (31 CFR part 205) and instructions
from the administering payment office in making withdrawals under the
letter of credit and in reporting on cash disbursements and balances.
Except as provided in paragraph (c) of this section, a letter of credit
shall be used by DOE when:
(i) There is or will be a continuing relationship between a grantee
and DOE for at least a 12-month period and the total amount of funds to
be advanced by DOE to the grantee within that period is $120,000 or
more; and
(ii) The grantee's financial management system meets the standards
for fund control and accountability specified in 600.109(b), including
procedures or planned procedures that will minimize the time elapsing
between the transfer of funds from the U.S. Treasury and their
disbursement by the grantee.
(2) Advance by Treasury check. Advance by Treasury check is a
payment made upon request before the grantee makes cash outlays. DOE
shall use this method when the grantee meets the requirements of
paragraph (b)(1)(ii) of this section but not those of paragraph
(b)(1)(i).
(i) The timing and amount of cash advances to the grantee shall be as
close as is administratively feasible to the actual disbursement of
funds by the grantee.
(ii) If a grantee meets the requirements for advance payment, the
duration of the project is 12 months or less, and the amount of the DOE
award is less than $10,000, DOE may advance the entire award amount in a
single Treasury payment.
(c) Reimbursement by Treasury check. DOE may use a reimbursement by
Treasury check method of payment if the grantee does not meet the
requirements of paragraph (b)(1)(ii) of this section. DOE may also use
the reimbursement method if the major portion of the project or activity
will be financed by private financing or Federal loans, with the DOE
grant representing 25 percent or less of the total cost.
(1) For construction grants, DOE may use the reimbursement method
unless DOE has an agreement with the grantee to use a letter of credit
for all DOE grants, including construction grants.
(2) Grantees and subgrantees shall not be reimbursed for amounts that
are to be withheld from contractors to assure satisfactory completion of
contractual work under a grant or subgrant. Such amounts shall be paid
only after the grantee or subgrantee makes the final payment to the
contractor, including the amount withheld.
(3) DOE shall make payment within 30 days of a request for
reimbursement, unless the request is improper or questionable.
(d) Conversion from advance payment method. DOE may convert a
grantee from advance payment to reimbursement whenever the grantee no
longer meets the criteria for advance payment specified in paragraph
(b)(1)(ii) of this section. Any such conversion may be accomplished
only after DOE has advised the grantee in writing of the reasons for the
proposed action and has provided a period of at least 30 days within
which the grantee may take corrective action or provide satisfactory
assurances of its intention to take such action.
10 CFR 600.113 Program income.
(a) General. Grantees and subgrantees shall be required to account
for income earned from activities supported by a grant or subgrant and
income resulting from DOE grant support as indicated in paragraphs (b)
through (f) of this section.
(b) Income resulting from advances of DOE funds. Unless there are
statutory provisions to the contrary, a grantee shall remit to DOE any
interest or other investment income earned on advances of DOE funds.
(c) Proceeds from the sale of real or tangible personal property.
The grantee or subgrantee shall account for proceeds from the sale of
real property, equipment, and supplies in accordance with 600.117.
(d) Royalties. The awarding party shall have no right to any
royalties received by a grantee or subgrantee as a result of a copyright
or a patent obtained on copyrightable material or an invention produced
under the grant or subgrant unless required by the terms and conditions
of the grant or subgrant award.
(e) General program income -- (1) Scope. The grantee or subgrantee
shall retain all ther program income (exclusive of the types of program
income covered by paragraphs (b), (c) and (d) of this section), which
shall be treated as general program income. Such income includes, but
is not limited to, income in the form of fees for services, proceeds
from the sale of energy, and usage or rental fees if the activity from
which the income was earned was treated, in whole or in part, as a
direct cost of the grant or subgrant and either funded by DOE or counted
toward meeting a cost sharing requirement of the award. General program
income does not include revenue such as taxes raised by a government
under its governing power, tuition and related fees received by an
institution of higher education for a regularly offered course taught by
an employee performing under a grant or subgrant, or internal
reimbursements or transfers of funds between components of the same
legal entity (e.g. between agencies of a State government).
(2) Grantee accountability. The grantee shall report general program
income on the Financial Status Report (SF-269) (OMB Nos. 0348-0001 and
1900-0127) or equivalent for the period earned or received (depending on
the accounting basis used) and for the period used (see 600.116). The
grantee shall account for general program income as prescribed in the
terms and conditions of the award, which may specify the use of one or
more of the options listed in (i), (ii), and (iii) of paragraph (e)(2)
of this section, and which may distinguish between sources, kinds, and
amounts of income in determining the option(s) to be applied. If the
award does not authorize a grantee to use general program income as
indicated in paragraphs (e)(2)(ii) and/or (e)(2)(iii), such program
income shall be used as provided in paragraph (e)(2)(i). Unless
required by statute or program rule, DOE shall have no right to any
portion of general program income earned or accrued after the project
period ends or the grant is terminated.
(i) General program income may be deducted from the total approved
budget to determine the net costs upon which the DOE share of costs
shall be calculated. If the project period consists of more than one
budget period, DOE may specify that the deduction be made in a
subsequent or later budget period rather than in the budget period
during which the general program income was earned or received.
(ii) General program income may be used to pay all or part of the
grantee's share of allowable project costs. When used in this way, the
income shall be applied to the grantee's share during the current budget
period unless DOE authorizes, in writing, deferral to a later budget
period.
(iii) The income may be used for costs not included in the total
approved budget, if DOE determines such costs are directly related to
the objectives of the Federal statute under which the grant was awarded.
(3) Subgrantee accountability. A subgrantee shall account to the
grantee for general program income in accordance with the terms and
conditions of the subgrant award. Such terms and conditions shall be
consistent with the provisions of this paragraph.
(f) Records. A grantee or subgrantee shall maintain records of the
source, amount, and disposition of any income for which it is
accountable to the awarding party. The access and retention
requirements of 600.25 and 600.124 apply to program income records.
(47 FR 44091, Oct. 5, 1982, as amended at 57 FR 5, Jan. 2, 1992)
Effective Date Note: At 57 FR 5, Jan. 2, 1992, 600.113 was amended
by revising paragraph (b) and by correcting ''ther'' to read ''other''
in the first sentence of paragraph (e)(1), effective February 3, 1992.
For the convenience of the user, the superseded text appears as follows.
600.113 Program income.
(b) Income resulting from advances of DOE funds. With the exception
of States and instrumentalities of a State, as defined in the
Intergovernmental Cooperation Act of 1968 (42 U.S.C. 4213), and their
subgrantees, a grantee shall remit to DOE any interest or other
investment income earned on advances of DOE funds.
10 CFR 600.114 Budget and project revisions.
(a) General. Subsequent to award, grantees and subgrantees are
permitted to rebudget within the approved direct cost budget to meet
unanticipated requirements and may make limited program changes to the
approved project. However, certain types of postaward changes in
budgets and projects shall require the prior written approval of the
awarding party.
(b) Budget changes -- (1) Nonconstruction projects. The grantee or
subgrantee shall obtain the prior written approval of the awarding party
whenever any of the following changes is anticipated under a
nonconstruction award:
(i) The rebudgeting of funds either within or between budget
categories for a type of cost for which approval is required under the
applicable cost principles (see 600.103).
(ii) Except as provided in 600.32(d) for budget flexibility in
research grants, any revision which would result in the need for
additional DOE funding.
(iii) The transfer of funds allotted for training allowances (i.e.
direct payments to trainees, to other expense categories).
(iv) Except for research grants, transfers among direct cost
categories, or, if applicable, among separately budgeted programs,
functions or activities which cumulatively exceed or are expected to
exceed 5 percent of the current total approved budget, whenever the
awarding party's share exceeds $100,000.
(2) Construction projects. The grantee shall obtain DOE prior
written approval for any budget revision which would result in the need
for additional DOE funds.
(3) Combined construction and nonconstruction projects. When a grant
or subgrant provides DOE funding for both construction and
nonconstruction activities, the grantee or subgrantee shall obtain prior
written approval from the awarding party before making any fund or
budget transfer from one activity classification to another.
(c) Project changes. The grantee or subgrantee shall obtain the
prior written approval of the awarding party whenever any of the
following actions is anticipated:
(1) Any revision of the scope or objective of the project (regardless
of whether there is an associated budget revision requiring prior
approval under paragraphs (b)(1), (b)(2) or (b)(3) of this section).
(2) Designation of a new project director or principal investigator
or a significant change in responsibilities of the designated project
director or principal investigator under a grant award for a research
project.
(3) Under nonconstruction projects, contracting or otherwise
obtaining the services of a third party to perform activities which are
central to the purposes of the award if such activities are treated as
direct costs. This approval requirement is in addition to the approval
requirements of 600.119(c), but does not apply to the procurement of
equipment, supplies, and general support services.
(d) Additional prior approval requirements. (1) Except as may be
authorized under 600.4 or 600.105, the awarding party may not require
prior approval for any budget revision which is not described in
paragraph (b) of this section.
(2) The awarding party may require prior written approval for project
revisions other than those described in paragraph (c) of this section.
(e) Requesting prior approval. (1) Except as provided in paragraph
(e)(2) of this section, a request for prior DOE approval of any budget
revision shall be on the same budget format the grantee used in its
application to DOE and must be accompanied by a narrative justification
for the proposed revision.
(2) A request for a budget revision which, under the applicable
Federal cost principles (see 600.103), requires DOE prior approval may
be made by letter.
(3) DOE approval or disapproval of a request for a budget or project
revision shall be in writing and signed by a DOE Contracting Officer.
(4) A request by a subgrantee for prior approval shall be addressed
in writing to the grantee. The grantee shall promptly review such
request and shall approve or disapprove the request in writing. A
grantee shall not approve any budget or project revision which is
inconsistent with the purpose or terms and conditions of the DOE grant
award. If the revision requested by the subgrantee would result in a
change to the grantee's approved budget or approved project which
requires DOE prior approval, the grantee shall obtain DOE approval
before approving such revision.
(5) Within 30 days after receiving a request for prior approval, the
awarding party shall send the requesting party a written notice stating
whether the proposed revision has been approved or disapproved, or the
date when a decision is expected to be made.
(47 FR 44091, Oct. 5, 1982, as amended at 51 FR 39367, Oct. 28, 1986;
54 FR 23959, June 5, 1989)
10 CFR 600.115 Performance reports.
(a) General. A grantee shall periodically assess and report to DOE
progress in meeting the project objectives of the grant award. The
requirements for such performance reports shall be described in any
solicitation and shall be set forth in the terms and conditions of the
award. The award shall specify the objectives the grantee is to achieve
in performing the project, the report form or format to be used, and the
frequency of required performance reports, and shall indicate whether
performance shall be reported on a project, function, or activity basis.
(b) Contents of performance reports. Performance reports shall
include:
(1) A comparison of the grantee's accomplishments with the objectives
established for the reporting period, including quantification related
to cost or other data if required by the terms and conditions of the
award, as well as the findings of the investigator, if applicable;
(2) Reasons why established objectives were not met; and
(3) Other pertinent information, including, when appropriate,
analysis and explanation of cost overruns or high unit costs.
DOE may specify in the award that the grantee provide this
information on the Program/Project Status Report (Form EIA-459F), the
technical reporting formats, or the Management Summary Report (see
paragraph (f) of this section) contained in the DOE Uniform Reporting
System for Federal Assistance (Grants and Cooperative Agreements)
(DOE/MA-0001).
(Approved by the Office of Management and Budget under control number
1900-0127)
(c) Frequency. Performance reports shall be submitted at least
annually (i.e. once for every 12-month period elapsed) and may be
required to be submitted no more frequently than quarterly. A final
report shall be required after the project period ends or the grant is
terminated. The deadlines for performance reports shall be as follows:
(1) Quarterly and semiannual reports shall be submitted within 30
days after the end of the quarter or six-month period covered by the
report.
(2) Annual performance reports shall be submitted within 90 days
after the end of the 12-month period (generally the budget period)
covered by the report or with, or as part of, any continuation or
renewal application if so specified in either any pertinent program
rules or the terms and conditions of award.
(3) Final performance reports shall be submitted within 90 days after
the project period ends or the grant is terminated.
(4) DOE may extend the deadline date for any report if the grantee
submits a written request before the deadline which adequately justifies
an extension.
(d) Relationship to Financial Status Report (FSR) (OMB Nos.
0348-0001 and 1900-0127) and other financial reports. (1) If the FSR is
used (see 600.116), the grantee shall submit its performance reports
and FSRs simultaneously for coextensive periods unless:
(i) DOE requires the grantee to submit a performance report with its
continuation or renewal application; or
(ii) DOE determines that on-site technical inspections by or on
behalf of DOE and certified completion data submitted by the grantee
would be sufficient to evaluate construction projects; or
(iii) In order to prepare a required annual report for the Congress,
DOE must receive performance reports on a date that is different from an
otherwise applicable deadline.
(2) If the grantee will be using the Request for Advance or
Reimbursement (SF-270) (OMB No. 0348-0004) instead of the FSR (see
600.116(b)), DOE shall specify in the award deadlines for performance
reports.
(e) Interim reports. The grantee shall report the following events
to DOE as soon after they occur as possible:
(1) Problems, delays, or adverse conditions which will materially
affect the ability to attain project objectives, or prevent the meeting
of time schedules and goals. The report must describe the remedial
action the grantee has taken or plans to take and any action DOE should
take to alleviate the problem. (See 600.114(e) for the procedures to
be followed if additional DOE funding is required.)
(2) Favorable developments or events which enable meeting time
schedules and goals sooner or at less cost than anticipated or producing
more beneficial results than originally projected. (See 600.108 (b)
and (c) in the event that an excess authorization of funds occurs.)
(f) Management Summary Report. DOE may require that the Management
Summary Report (EIA-459E) (OMB No. 1900-0127) be used as a performance
report in accordance with the Uniform Reporting System for Federal
Assistance (Grants and Cooperative Agreements) (DOE/MA-0001) only when
such use is authorized by program rule or the need for this form is
explained in the solicitation. The requirements of this section
concerning reporting frequency and deadlines shall apply to the
Management Summary Report. (See also 600.102(a) with regard to use of
this form as part of the grant application.)
(g) Required copies. The grantee shall submit an original and two
copies of each required performance report unless the award specifies
that the grantee may submit fewer copies.
(h) DOE review of grantee performance. DOE or its authorized
representatives may make site visits, at any reasonable time, to review
the project and to provide such technical assistance as may be
necessary.
(i) Subgrantee performance reporting. Grantees may place performance
reporting requirements on subgrant awards consistent with the provisions
of this section and shall require interim reports in accordance with
paragraph (e) of this section.
(47 FR 44091, Oct. 5, 1982, as amended at 51 FR 39368, Oct. 28, 1986)
10 CFR 600.116 Financial reports.
(a) General. A grantee shall report financial information to DOE
and, if other than DOE, the administering payment office, on one or more
of the forms indicated in paragraphs (b) through (f) of this section, as
specified by DOE in the terms and conditions of the award. The grantee
shall submit an original and two copies of each required form unless the
award specifies that the grantee may submit fewer copies. The
particular form(s) specified for use shall be appropriate for the
payment method used (see 600.112) and for DOE information requirements.
The grantee may provide the required information in machine usable
format or computer printout instead of on the prescribed report forms.
A grantee is not required to use these forms to obtain financial
information from a subgrantee.
(b) Financial Status Report (SF-269). (1) A grantee shall use the
Financial Status Report (FSR) to report the status of funds for all
nonconstruction projects unless DOE specifies in the award that the
Request for Advance or Reimbursement (SF-270) or the Report of Federal
Cash Transactions (SF-272) shall be used for this purpose. Whenever the
Request for Advance or Reimbursement form is used only for advances,
even if no interim FSRs are required as provided in this paragraph, the
grantee shall submit a final FSR after the project period ends or the
grant is terminated.
(Approved by the Office of Management and Budget under control
numbers 0348-0001 and 1900-0127; 0348-0003; and 0348-0004)
(2) Unless specified by DOE, a grantee may complete the FSR on a cash
or accrual basis. DOE may require accrual reporting only if such
reporting is required by program statute or rule. In any such case, the
grantee shall base its financial reports to DOE on an analysis of
available financial records but shall not be required to convert to an
accrual accounting system.
(3) DOE may require FSRs only in the frequency specified in
600.115(c). The grantee shall follow the deadline requirements described
in 600.115(c). Unless otherwise specified in the award, the grantee
shall submit an FRS annually or, if the project period is one year or
less, the grantee shall submit only a final FSR.
(4) If a grantee has unliquidated obligations when the final FRS is
due, the grantee shall ask the DOE Contracting Officer whether a
provisional final FSR should be submitted to be followed by a complete
final FRS at a later date.
(c) Report of Federal Cash Transactions (SF-272). When funds are
advanced to a grantee through a letter of credit or by Treasury check,
the grantee shall submit to DOE a Report of Federal Cash Transactions
and, when necessary, its continuation sheet (SF-272a) except that
grantees under the Regional Disbursing Office system shall not be
required to submit this report. For these grantees, DOE shall use
information contained in the payment request to monitor grantee cash
balances and to obtain disbursement information.
(Approved by the Office of Management and Budget under control number
0348-0003)
(1) The Federal Cash Transactions Report shall be submitted within 15
working days following the end of each quarter.
(2) DOE may require that grantees receiving advances totaling $1
million or more per year submit monthly SF-272 reports.
(3) DOE may waive the SF-272 requirement whenever total monthly
advances to a grantee do not exceed $10,000 and DOE determines that the
grantee's accounting controls are adequate to minimize excessive
advances.
(4) Grantees who receive a single payment of less than $10,000 in
accordance with 600.112(b)(2)(ii) shall not be required to submit an
SF-272.
(d) Payment requests under a letter of credit. A grantee shall use
the forms specified by the administering payment office to request
payment under a letter of credit (see 600.112(b)(1)).
(e) Request for Advance or Reimbursement (SF-270). A grantee who
does not have a letter of credit shall use the Request for Advance or
Reimbursement (SF-270) for any nonconstruction project.
(1) Requests for advances by Treasury check may be submitted as
necessary; however, such requests shall not be made in excess of
reasonable estimates of cash outlays for a 30-day period.
(2) Requests for reimbursement shall be submitted monthly unless more
frequent submission is authorized by the award.
(Approved by the Office of Management and Budget under control number
0348-0004)
(f) Outlay Report and Request for Reimbursement for Construction
Programs (SF-271). Unless DOE specifies in the award that the grantee
shall use the SF-270, the grantee shall use the Outlay Report and
Request for Reimbursement for Construction Programs to request
reimbursement for a construction project in the frequency specified in
paragraph (e)(2) of this section.
(Approved by the Office of Management and Budget under control number
0348-0002)
(g) Standard forms. Standard financial report forms, instructions
for their completion, and applicable definitions, are contained in OMB
Circular A-110, Attachment G, and, with respect to the SF-269, in the
Uniform Reporting System for Federal Assistance (DOE/MA-0001). All DOE
grantees shall use these forms and instructions, except as provided in
paragraph (a) of this section. Use of any nonstandard form or
instructions shall be considered a deviation subject to the deviation
procedures of 600.4.
(Approved by the Office of Management and Budget under control
numbers 0348-0001 -- 0348-0004 and 1900-0127)
(47 FR 44091, Oct. 5, 1982, as amended at 53 FR 8047, Mar. 11, 1988)
10 CFR 600.117 Property management.
(a) Definitions. (1) Acquired with DOE grant funds means that all or
a portion of the acquisition cost of an item of property is a direct
charge to DOE grant funds (whether the cost is incurred under the grant,
a subgrant, or a cost-reimbursement contract) or all or a portion of the
acquisition cost is a direct cost being used to meet a cost sharing
requirement.
(2) Acquisition cost of an item of purchased equipment means the net
invoice unit price of the equipment, including the cost of
modifications, attachments, accessories, or auxiliary apparatus
necessary to make the equipment usable for the purpose for which it was
acquired. Other charges such as the cost of installation,
transportation, taxes, duty, or protective in-transit insurance, shall
be included or excluded from the unit acquisition cost in accordance
with the grantee's regular accounting practices.
(3) Acquisition of property means the purchase, construction, or
fabrication of property but does not include rental of property or minor
alteration or renovation of real property.
(4) Allowable cost of the project means, when used for purposes of
determining the amount of reimbursement due under this section, the DOE
(or non-Federal) share of the allowable costs which were either
chargeable to DOE grant funds or counted toward meeting a cost sharing
requirement of the grant during the project period. For property
acquired by a subgrantee, the DOE share of the grantee's costs shall be
multiplied by the grantee's share of the subgrantee's costs to determine
the DOE share of the subgrantee's costs.
(5) Equipment means an article of tangible personal property that has
a useful life of more than two years and an acquisition cost of $500 or
more. A grantee or subgrantee may use its own definition of equipment
provided the definition would include all articles of equipment as
defined in this paragraph.
(6) Exempt property means equipment and supplies acquired with DOE
grant funds for which the grantee or subgrantee is not required to
account to DOE except as provided in paragraph (d)(2) of this section.
The exempt status must be authorized by a Federal statute.
(7) Federally owned property means any real or tangible personal
property (equipment or supplies) owned by DOE which is furnished by DOE
to a grantee for use during the project period, and any such property
acquired under a grant which DOE is required by statute or by a
determination made in accordance with this part to own.
(8) Nonexempt property means equipment and supplies acquired with DOE
grant funds which are subject to the conditions for use, management, and
disposition under paragraphs (d) and (e) of this section. For purposes
of this section, nonexempt property includes excess personal property
which has been made available to a grantee under authority of the
Federal Property and Administrative Services Act, as amended by 40
U.S.C. 483, and the implementing Federal Property Management Regulations
(41 CFR 101-43.320).
(9) Real property means land, land improvements, structures and
anything attached to these so as to become a part of them. This term
does not include movable machinery and other types of equipment.
(10) Supply means any tangible personal property other than
equipment.
(b) Applicability. (1) Except as provided in paragraphs (b)(2) and
(b)(3), this section applies to real property equipment, and supplies
acquired with DOE grant funds, and to real property, equipment, and
supplies furnished by DOE under a grant.
(2) The requirements of this section apply to grantees and
subgrantees. The requirements of this section apply to equipment and
supplies acquired by a contractor under a grant or subgrant only when
the contract requires ownership of the property to remain with the
grantee, subgrantee, or DOE.
(3) The requirements of this section do not apply to:
(i) Property for which only use or depreciation allowances are
charged;
(ii) Property donated by a third party (whether or not counted as a
third-party in-kind contribution); and
(iii) Property acquired for sale or rental rather than for use in the
grant project.
(4) Grantees and subgrantees may use their own property management
standards and procedures if the requirements of this section are
included.
(c) Real property. (1) Federally owned real property shall be
managed and disposed of in accordance with the terms and conditions of
the award.
(2) Real property may be acquired with DOE grant funds only when
authorized by Federal statute or program rule and only if DOE
specifically authorizes such costs in the award. Except as otherwise
required by Federal statute or program rule, the following shall apply
whenever real property is acquired with DOE grant funds.
(i) Subject to the conditions in paragraphs (c)(2)(ii) and
(c)(2)(iii), the grantee shall have title to such real property during
and after the period of DOE grant support. A subgrantee may have title
to such real property only if authorized by Federal statute or program
rule.
(ii) Except as provided in paragraph (c)(2)(iv), the grantee shall
notify DOE at any time if the real property becomes unnecessary for the
purpose authorized under the grant or subgrant under which it was
acquired. The grantee must obtain written DOE approval to use the
property for any other purpose. Such use shall be limited to federally
assisted projects, or to programs, projects or activities that have
purposes consistent with those authorized in the statute under which the
grant was awarded.
(iii) Except as provided in paragraph (c)(2)(iv) of this section,
whenever real property is no longer needed or used as provided in
paragraph (c)(2)(ii) of this section, the grantee must request
disposition instructions from DOE. DOE shall instruct that the real
property be disposed of in one of the following ways, any one of which
shall result in satisfaction of the grantee's accountability:
(A) The grantee or subgrantee may be permitted to retain the real
property after compensating DOE in an amount computed by applying the
percentage of DOE participation in the allowable costs of the project to
the current fair market value of the property.
(B) The grantee or subgrantee may be directed to sell the real
property and pay DOE an amount computed by applying the percentage of
DOE participation in the allowable costs of the project to the proceeds
from sale (after deducting actual, reasonable selling expenses from the
sales proceeds).
(C) The grantee or subgrantee may be directed to transfer title to
the Federal government or to a non-Federal third party specified by DOE
(although the grantee or subgrantee may suggest a potential third party
transferee). The grantee or subgrantee shall be compensated in an
amount computed by applying the grantee's percentage of participation in
the allowable costs of the project to the current fair market value of
the real property.
(D) If the real property was not wholly acquired with DOE grant
funds, the proportionate shares shall be adjusted by multiplying the
percentage of the acquisition cost of the property (or if donated, the
market value at the time of donation) which was attributable to DOE
grant funds by the percentage of DOE, grantee, or subgrantee
participation in the allowable costs of the project. This requirement
also applies to reimbursement due under paragraph (d) or (e) of this
section.
(iv) If real property is acquired under a grant or subgrant of
$10,000 or less, the grantee shall not be required to --
(A) Obtain DOE approval for any alternative use or disposition of the
property after the end of the project period.
(B) Compensate DOE for its share of the acquisition cost of the real
property.
(d) Equipment -- (1) Federally owned equipment. Unless otherwise
specified in the award, the grantee or subgrantee shall manage federally
owned equipment provided by DOE or acquired with DOE grant funds in
accordance with the property management standards in OMB Circular A-110,
Attachment N, Paragraph 6.d., as applicable. The OMB Circular A-110
requirements shall also apply to individuals, for-profit organizations,
and foreign organizations. However, if federally owned equipment has
been provided under a grant, the grantee must submit annually an
inventory to DOE which lists such equipment in the custody of the
grantee, any subgrantee, or contractor under the grant. For federally
owned equipment acquired with DOE grant funds, the grantee shall provide
DOE written notification of the results of the inventory(ies) under OMB
Circular A-110, Attachment N, Paragraph 6.d., as applicable.
(i) During the period of DOE support, the grantee shall notify DOE as
soon as practicable whenever federally owned equipment is no longer
needed for the project. For expired or terminated grants, the grantee
shall report any federally owned equipment upon request by DOE as part
of closeout (see 600.123). Thereafter, DOE shall issue disposition
instructions to the grantee in accordance with applicable law and
regulations.
(2) Transfer of equipment. DOE may transfer ownership of any item of
exempt or nonexempt equipment having a unit acquisition cost of $1,000
or more to the Federal government or to an eligible third party named by
DOE, subject to the following:
(i) DOE must notify the grantee in writing of its intent to transfer
ownership within 120 days following the end of the project period or the
termination of the DOE grant under which the equipment was acquired, and
must specifically identify the equipment to be transferred. DOE shall
arrange for transfer as soon as possible after the notice.
(ii) DOE may transfer ownership only when the equipment is no longer
needed for the project for which it was acquired, or if the grantee or
subgrantee agrees to relinquish the equipment.
(iii) The grantee shall be paid any reasonable storage or shipping
costs incurred plus an amount computed by multiplying the current fair
market value of the equipment by the non-Federal share, if any, in the
allowable costs of the project. A grantee may, in the terms of a
subgrant, reserve the right to transfer equipment acquired under the
subgrant as provided in this paragraph. Without DOE approval, this
right may be exercised only if the project for which the equipment was
acquired is transferred to another subgrantee and the equipment is to be
transferred for continued use in the project. Any other exercise of
this right by the grantee requires the prior written approval of DOE.
(3) Grantees and subgrantees shall comply with OMB Circular A-110,
Attachment N, Paragraphs 6. b, c, and d for use, disposition, and
management of such equipment.
(4) At the end of the project period or at the termination of DOE
support for the project, the grantee shall provide an inventory of
nonexempt equipment with a unit acquisition cost of $1,000 or more
acquired by the grantee or subgrantee along with a statement of the
grantee's or subgrantee's plans for continued use or recommendations for
disposing of such equipment. If nonexempt equipment is acquired under a
grant of $10,000 or less, and DOE does not transfer ownership under
paragraph (d)(2) of this section, the grantee shall have no further
obligation to DOE with respect to the use, management, or disposition of
such property.
(e) Supplies. (1) Federally owned supplies shall be used, managed,
and disposed of in accordance with the terms and conditions of the
award.
(2) If, at the end of the project period or upon termination of the
grant or subgrant for which supplies (other than federally owned
supplies) were acquired, unused supplies exceeding $1,000 in total
aggregate current fair market value remain, they may be used for any
other federally funded activity of the grantee or subgrantee without
compensation to DOE. Unless otherwise exempted by Federal statute, if
they are not needed for any federally funded activity, the grantee or
subgrantee must compensate DOE. If the supplies are retained for use on
non-Federal activities, the amount due DOE shall be computed by
multiplying the DOE share in the allowable costs of the project for
which the supplies were acquired by the current fair market value of the
supplies. If sold, the DOE share shall be multiplied by the sales
proceeds or the current fair market value, whichever is greater, to
determine the amount due DOE. The grantee or subgrantee may retain $100
or ten percent of the proceeds, whichever is greater, for selling and
handling expenses.
(47 FR 44091, Oct. 5, 1982, as amended at 53 FR 8047, Mar. 11, 1988)
10 CFR 600.119 Procurement under grants and subgrants.
(a) Applicability. This section applies to the procurement, whether
by purchase, rental, or otherwise, of supplies, equipment, construction,
or services by grantees and subgrantees from third parties when some or
all of the cost of the procurement is a direct charge to DOE grant funds
or is a direct cost being used to meet all or part of a cost sharing
requirement of the DOE award.
(1) This section does not apply to procurements covered by 600.436,
subpart E.
(2) This section does not apply to procurement of land or any other
existing real property.
(b) Grantee and subgrantee responsibilities. Grantees and
subgrantees shall comply with the grantee and subgrantee responsibility
requirements of OMB Circular A-110, Attachment O, Paragraphs 2, 3, and
4.
(c) Prior approval requirements. (1) A grantee or subgrantee must
receive prior written approval from the awarding party before entering
into any sole source contract or a contract where only one bid or
proposal is received when the value of the contract is expected to
exceed $5,000 in the aggregate, and the grantee or subgrantee is not a
State government, local government, Indian tribal government, SBIR award
recipient (see 600.125(d)(2)), or research award recipient.
(2) In addition to the prior approval requirements of paragraph
(c)(1), DOE may require review and approval of proposed procurements in
the following instances:
(i) If DOE or the grantee determines, on the basis of a review in
accordance with 600.104 or 600.105, that the grantee's or subgrantee's
procurement procedures or operations do not comply with one or more of
the applicable procurement system standards; or
(ii) Whenever authorized under OMB Circular A-110.
(3) A request for prior approval under this paragraph shall include a
copy of the proposed contract and any related procurement documents,
such as requests for proposals and invitations for bids, and
justification for noncompetitive procurement.
(d) Contract provisions. In addition to the contract clauses
required under OMB Circular A-110, contracts under grants and subgrants
shall include the following as appropriate:
(1) In negotiated contracts whose value is more than $10,000, a
clause requiring the contractor to retain records for three years after
final payment is made under the contract. The provision must also
require that if an audit, litigation, or other action involving the
records is started before the end of the three-year period, the records
must be retained until all issues arising out of the action are
resolved, or until the end of the three-year period, whichever is later.
(i) If the contract is under a subgrant, the clause must require that
the grantee, the subgrantee, and the Federal government shall have
access to applicable records (see 600.25).
(2) A clause requiring the contractor to comply with applicable DOE
requirements concerning patents, inventions and copyrights (see
600.33).
(3) A clause specifying the Federal cost principles applicable to a
contractor under a cost-reimbursement contract.
(4) A clause requiring the contractor to include the clauses required
by this paragraph (d) in any subcontract which would be required if the
subcontract were a contract under a grant or subgrant except that a
contractor administering a fixed-price contract shall not be required to
specify Federal cost principles in a cost-reimbursement subcontract.
(e) Payment of interest penalties. By agreement of the grantee or
subgrantee and the contractor, if consistent with the grantee's or
subgrantee's usual business practices and applicable state and local
law, any contract to which this section applies may provide for the
payment of interest penalties on amounts overdue under such contract
except that --
(1) In no case shall any obligation to pay such interest penalties be
construed to be an obligation of the Federal government, and
(2) Any payment of such interest penalties may not be made from DOE
funds nor be counted toward meeting a cost sharing requirement of a DOE
award.
(47 FR 44091, Oct. 5, 1982, as amended at 51 FR 39368, Oct. 28, 1986;
53 FR 8047, Mar. 11, 1988; 54 FR 23959, June 5, 1989; 57 FR 5, Jan.
2, 1992)
Effective Date Note: At 57 FR 5, Jan. 2, 1992, 600.119 was amended
by revising paragraphs (c)(1) and (d)(2), effective February 3, 1992.
For the convenience of the user, the superseded text appears as follows.
600.119 Procurement under grants and subgrants.
(c) Prior approval requirements. (1) A grantee or subgrantee must
receive prior written approval from the awarding party before entering
into any sole source contract or a contract where only one bid or
proposal is received when:
(i) Except as provided in paragraph (c)(1)(iii) of this section, the
value of the contract is expected to exceed $5,000 in the aggregate and
the grantee or subgrantee is not a State government, local government,
or Indian tribal government.
(ii) (Reserved)
(iii) In the case of a research grant, the value of the contract is
expected to exceed $25,000 in the aggregate, regardless of the grantee's
or subgrantee's organizational type.
(d) * * *
(2) A clause requiring the contractor to comply with applicable DOE
requirements concerning patents, inventions and copyrights (see
600.118).
10 CFR 600.120 Audit requirements.
(a) This section establishes requirements for the conduct, oversight,
scope, and frequency of financial and compliance audits for recipients
and subrecipients. Any financial and compliance audit of a recipient
covered by paragraph (b) or (c) of this section, which is in addition to
the audit required by those paragraphs, made by or on behalf of DOE
shall rely, to the extent possible, on the independent audit performed
pursuant to those paragraphs.
(b) State governments, local governments, or Indian tribes. A
grantee that is a State government, a local government, or an Indian
tribe, as defined therein, shall comply with the audit requirements of
the Single Audit Act of 1984 and OMB Circular A-128, as implemented by
subpart D of this part.
(c) Nonprofit organizations. (1) Except for public hospitals and
public colleges and universities that are included in an audit conducted
pursuant to subpart D of this part, all grantees and subgrantees that
are institutions of higher education, hospitals or other nonprofit
organizations shall comply with the requirements of OMB Circular A-133,
and shall:
(i) Conduct, or provide for the conduct of, an independent financial
and compliance audit usually annually but not less frequently than every
two years, on an organization-wide basis using a representative sample
of Federal awards;
(ii) Make such audits in accordance with the General Accounting
Office (GAO) ''Standards for Audit of Governmental Organizations,
Programs Activities, and Functions;'' the GAO ''Guidelines for Financial
and Compliance Audits of Federally Assisted Programs''; OMB-approved
audit compliance supplements; and generally accepted auditing standards
established by the American Institute of Certified Public Accountants.
(iii) Submit the resulting audit report(s) to the cognizant audit
agency, in the case of a grantee, or to the grantee, in the case of a
subgrantee.
(2) Any grantee or subgrantee that is a small organization (as
defined in 600.101), which is not covered by the audit requirements of
subpart D and that receives DOE financial assistance only in the amount
of $10,000 or less for a period of 18 months or less shall not be
required to comply with paragraph (c)(1) of this section but may be
audited in accordance with paragraph (d).
(d) Individuals and for-profit organizations. The awarding party may
audit, or cause to be audited, grants or subgrants to individuals or
for-profit organizations whenever and in the degree of detail deemed
necessary by the awarding party. The awarding party shall rely on
available audit reports in determining the need for an scope of such
audits.
(47 FR 44091, Oct. 5, 1982, as amended at 50 FR 42356, Oct. 18, 1985;
51 FR 4297, Feb. 4, 1986; 57 FR 5, Jan. 2, 1992)
Effective Date Note: At 57 FR 5, Jan. 2, 1992, 600.120 was amended
by revising the introductory text to paragraph (c)(1), effective
February 3, 1992. For the convenience of the user, the superseded text
appears as follows.
600.120 Audit requirements.
(c) Nonprofit organizations. (1) Except for public hospitals and
public colleges and universities that are included in an audit conducted
pursuant to subpart D of this part, all grantees and subgrantees that
are institutions of higher education, hospitals or other nonprofit
organizations shall comply with the requirements of OMB Circular A-110,
Attachment F, Paragraph 2.h. and shall:
10 CFR 600.121 Noncompliance.
(a) Except for noncompliance determinations under 10 CFR part 1040,
whenever DOE determines that a grantee has not complied with the
applicable requirements of this part, with the requirements of any
applicable program statute or rule, or with any other term or condition
of the award, a DOE Contracting Officer shall provide to the grantee (by
certified mail, return receipt requested) a written notice setting forth
--
(1) The factual and legal bases for the determination of
noncompliance;
(2) The corrective actions and the date (not less than 30 days after
the date of the notice) by which they must be taken.
(3) Which of the actions authorized under paragraph (b) of this
section DOE may take if the grantee does not achieve compliance within
the time specified in the notice, or does not provide satisfactory
assurances that actions have been initiated which will achieve
compliance in a timely manner.
(b) If the grantee does not achieve compliance or provide DOE with
satisfactory assurances of the initiation of actions intended to achieve
compliance within the time specified in the notice under paragraph (a)
of this section, DOE may take any or all of the following actions:
(1) Convert the grantee from an advance payment method to a
reimbursement payment method as provided in 600.112(d);
(2) Withhold payment as provided in 600.112(f);
(3) Suspend the grant;
(4) Terminate the grant for cause;
(5) Disapprove renewal applications or other requests for extension
of time or additional funding for the same project;
(6) Decline to make a continuation award;
(7) Invalidate an award that was obtained fraudulently;
(8) Recover funds and tangible property up to the amount of the
award;
(9) Determine that the grantee is not responsible as provided in
600.104; and
(10) Initiate such other legal actions as may be appropriate.
(c) DOE may take any of the actions set forth in paragraph (b) of
this section concurrent with the written notice required under paragraph
(a) of this section or with less than 30 days written notice to the
grantee whenever:
(1) There is evidence the award was obtained by fraud;
(2) The grantee ceases to exist or becomes legally incapable of
performing its responsibilities under the grant agreement;
(3) There is serious mismanagement or misuse of grant funds
necessitating immediate action; or
(4) An immediate debarment in accordance with 600.27(g) is
warranted.
(47 FR 44091, Oct. 5, 1982, as amended at 48 FR 34405, July 28, 1983)
10 CFR 600.123 Closeout.
DOE shall close out a grant within a reasonable period of time after
the completion date of the grant. The completion date may be either the
last day of the project period or the date of termination of a grant.
Closeout means the process by which DOE determines that all required
work has been performed by the grantee and that all applicable
administrative actions, except as provided in paragraphs (b) and (c) of
this section, have been completed by DOE and the grantee.
(a) Final reports. Within 90 days after the completion date of a
grant, the grantee shall submit any final financial, performance, and
other reports required by the terms and conditions of the award.
(b) Final payments and adjustments. If required or authorized by the
terms and conditions of the award, DOE may make any necessary upward or
downward adjustment to the DOE share of the approved budget based on the
information contained in the grantee's final reports or in any audit
under 600.120. At the request of a grantee who is being reimbursed by
Treasury check, DOE shall promptly pay the grantee for any unreimbursed
allowable costs under the grant being closed out. The grantee shall
immediately refund to DOE any unobligated funds advanced to the grantee
which are not authorized to be retained by the grantee for use on other
DOE awards. In the case of grants terminated for cause, payments to
grantees or refunds to DOE shall be made in accordance with 600.122.
(c) Property. The grantee shall provide a listing of property
furnished by DOE or acquired with DOE grant funds for which such a
listing is required under 600.117. The closeout of a grant does not
affect the grantee's responsibilities for property for which a grantee
is accountable and which has not been transferred by DOE or disposed of
in accordance with 600.117.
(d) Program income. The closeout of a grant does not affect a
grantee's responsibilities with respect to program income for which the
grantee is accountable in accordance with 600.113(e).
(e) Audit. If DOE closes out a grant without an audit or without
benefit of an organizationwide or single audit covering the full period
of DOE support, the grantee shall refund to DOE the amount of any costs
subsequently disallowed under the closed out grant on the basis of any
applicable audit report received subsequent to closeout.
(f) Subgrants. Grantees shall, to the extent appropriate, follow the
procedures of this section in closing out subgrants.
(47 FR 44091, Oct. 5, 1982, as amended at 50 FR 42357, Oct. 18, 1985;
51 FR 4297, Feb. 4, 1986)
10 CFR 600.124 Record retention requirements.
Grantees and subgrantees shall retain records as specified in 600.25
for a three-year period which shall be calculated as follows:
(a) If DOE grant support is continued or renewed at annual or other
intervals, the retention period for the records of each budget period
shall commence on the date the annual Financial Status Report (OMB Nos.
0348-0001 and 1900-0127) (or equivalent) is submitted to DOE. In all
other cases, the retention period starts on the date the grantee submits
its final Financial Status Report (or equivalent) to DOE or, if the
requirement for such an expenditure report has been waived, the
retention period shall start 90 days after the completion date of the
grant.
(b) Equipment records. The record retention period for the equipment
records required by 600.117 starts from the date of disposition or
transfer of the property by or at the direction of the awarding party.
(c) Program income records. If, by the terms and conditions of the
award, the grantee or subgrantee --
(1) Is accountable for program income earned or received after the
end of the project period or after the termination of a grant or
subgrant, or
(2) If program income earned during the project period is required to
be applied to costs incurred after the end of the project period or
after termination of a grant or subgrant, the record retention period
shall start on the last day of the grantee's or subgrantee's fiscal year
in which such income was earned or received or such costs were incurred.
All other program income records shall be retained in accordance with
paragraph (a) of this section.
(d) Indirect cost computation records. The retention period for
supporting records for indirect cost rate computations or proposals
submitted to the awarding party or other Federal agency for negotiation
starts from the date of submission of the proposal or computation.
(1) If a local government is required to submit its indirect cost
plan to the Federal government for negotiation in accordance with OMB
Circular A-87, the retention period for the plan and supporting records
starts from the end of the fiscal year (or other accounting period)
covered by the plan.
(e) If any litigation, claim, negotiation, audit or other disputed
action involving the records has been started before the expiration of
the three-year period, the records shall be retained until such action
and all related issues are resolved, or until the end of the regular
three-year retention period, whichever is later.
(f) The awarding party may request that records be transferred to its
custody. After the records are transferred to the awarding party, the
three-year retention requirement does not apply to the transferred
records.
(g) Microfilm copies may be substituted for original records.
(h) The retention requirements applicable to contractor and
subcontractor records are specified in 600.119(d).
Effective Date Note: At 57 FR 5, Jan. 2, 1992, 600.125 was added,
effective February 3, 1992.
10 CFR 600.125 Special provisions for Small Business Innovation
Research Grants.
(a) General. This section contains provisions applicable to the
Small Business Innovation Research (SBIR) Program. This codifies six
class deviations pertaining to the SBIR program.
(b) Provisions Applicable to Phase I SBIR Awards. Phase I SBIR
awards may be made on a fixed obligation basis, subject to the following
requirements:
(1) While proposed costs must be analyzed in detail to ensure
consistency with applicable cost principles, incurred costs are not
subject to regulation by the standards of cost allowability;
(2) Although detailed budgets are submitted by a recipient and
reviewed by the DOE for purposes of establishing the amount to be
awarded, budget categories are not stipulated in making an award;
(3) Prior approval from the DOE for rebudgeting among categories by
the recipient is not required. Prior approval from the DOE is required
for situation involving sole source or single bid procurements as
provided in 600.125(d)(2). Prior approval from the DOE is also required
for any variation from the requirement that no more than one-third of
Phase I work can be done by sub-contractors or consortium partners;
(4) Pre-award expenditure approval is not required;
(5) Payments are to be made in the same manner as other financial
assistance (see 600.112), except that, when determined appropriate by
the cognizant program official and contracting officer, a lump sum
payment may be made. If a lump sum payment is made, the award must be
conditioned to require the recipient to return to the DOE amounts
remaining unexpended at the end of the project if those amounts exceed
$500;
(6) Recipients will certify in writing to the Contracting Officer at
the end of the project that the activity was completed or the level of
effort was expended. Should the activity or effort not be carried out,
the recipient would be expected to make appropriate reimbursements;
(7) Requirements for periodic reports may be established for each
award so long as they are consistent with 600.115;
(8) Changes in principal investigator or project leader, scope of
effort, or institution, require the prior approval of the DOE.
(c) Provision Applicable to Phase II SBIR Awards. Phase II SBIR
awards may be made for a single budget period of 24 months.
(d) Provisions Applicable to Phase I and Phase II SBIR Awards. (1)
The prior approval of the cognizant DOE Contracting Officer is required
before the final budget period of the project period may be extended
without additional funds.
(2) A grantee or subgrantee must receive the prior written approval
of the awarding party before entering into any sole source contract or a
contract where only one bid or proposal is received when the value of
the contract is expected to exceed $25,000 in the aggregate.
(3) A fee or profit may be paid to SBIR recipients.
(57 FR 5, Jan. 2, 1992)
10 CFR 600.125 Subpart C -- Cooperative Agreements
Source: 53 FR 5262, Feb. 22, 1988, unless otherwise noted.
10 CFR 600.200 Scope and applicability.
(a) This subpart establishes policies and procedures for the award
and administration of cooperative agreements.
(b) The requirements of this subpart shall apply as indicated in
600.2 except that this subpart shall not apply to any new award
resulting from a solicitation issued before February 22, 1988.
(c) The noncompliance procedures of 600.121 and the suspension and
termination procedures of 600.29 which are specified for cooperative
agreement use in 600.205 shall apply, with the concurrence of the
affected parties, to any applicable action initiated before February 22,
1988, and shall apply to any applicable action initiated after February
22, 1988, under an active cooperative agreement. The closeout
procedures of 600.123 which are specified in 600.205 shall apply to
any terminated or expired cooperative agreement which has not been
closed out prior to February 22, 1988.
(53 FR 5262, Feb. 22, 1988, as amended at 53 FR 8047, Mar. 11, 1988)
10 CFR 600.201 Definitions.
The definitions contained in 600.101 except for ''formula grant''
and ''subgrant'' shall apply to all cooperative agreements. In
addition, for purposes of this subpart, participant means the
organization, individual, or other entity that receives a cooperative
agreement award from DOE and is financially accountable for the use of
any DOE funds or property provided for the performance of the project,
and is legally responsible for carrying out the terms and conditions of
the award.
10 CFR 600.202 Selection of cooperative agreement as financial
assistance instrument.
(a) Determinations. When DOE determines in accordance with the
appropriate authorizing statute, the Federal Grant and Cooperative
Agreement Act, Pub. L. 97-258, and 600.5 that the principal purpose of
the relationship is assistance and it is anticipated that there will be
substantial involvement between DOE and the participant during
performance of the contemplated activity, the award instrument shall be
a cooperative agreement.
(b) Substantial involvement. Anticipated substantial involvement
between DOE and the participant during performance of the contemplated
activity is the only criterion which distinguishes a grant relationship
from a cooperative agreement relationship.
(1) Substantial involvement exists when:
(i) Responsibility for the management, control, or direction of the
project is shared by DOE and the participant, or
(ii) Responsibility for the performance of the project is shared by
DOE and the participant, or
(iii) DOE has the right to intervene in the conduct or performance of
project activities for programmatic reasons. Intervention includes the
interruption or modification of the conduct or performance of project
activities. (Suspension or termination of the cooperative agreement
under 600.122 does not constitute ''intervention in the conduct or
performance of project activities.'')
(2) Providing technical assistance or guidance of programmatic nature
to a recipient does not constitute substantial involvement if the
recipient is not required to follow such guidance or if the technical
assistance or guidance is provided at the request of the recipient, and
such assistance or guidance is not expected to result in continuing DOE
involvement in the performance of the project.
(3) Technical assistance or guidance which pertains to the
administrative requirements of the award does not constitute substantial
involvement.
(c) Statement of substantial involvement between DOE and the
participant. Every cooperative agreement shall explicitly state the
substantial involvement anticipated between DOE and the participant
during performance of the project.
(1) The cooperative agreement award document shall affirmatively
state, under the heading ''Substantial Involvement between DOE and the
Participant,'' all relevant information concerning the substantial
involvement anticipated between DOE and the participant during
performance of the project. This statement shall describe the
following:
(i) The project activities in which substantial involvement between
DOE and the participant is anticipated;
(ii) The specific responsibilities and authorities of DOE and the
participant in the conduct and/or performance of each of the project
activities in which substantial involvement is anticipated;
(iii) Any limitations on DOE/participant responsibilities and
authorities in the conduct and/or performance of each of the project
activities;
(iv) The duration of DOE/participant responsibilities and authorities
in the conduct and/or performance of each of the project activities.
(2) A statement of substantial involvement between DOE and the
participant shall be developed so that it:
(i) Represents only the DOE involvement intended and does not
unnecessarily increase DOE liability under the cooperative agreement;
(ii) Integrates, as appropriate, DOE's responsibilities and
involvement in project activities with administrative requirements such
as performance reporting and monitoring, property management, and
suspension and termination; and
(iii) Specifies which general administrative requirements applicable
to cooperative agreements are deleted or modified because they are
inconsistent with the provisions related to substantial involvement.
10 CFR 600.203 Application budgetary information.
For cooperative agreement application subject to the SEB process, DOE
may require that applicants, other than governmental entities, submit
budget information in a different format and in greater detail than that
specified in 600.10, 600.102 and 600.410 only when that information is
essential to evaluation under the SEB process. State, local, and Indian
tribal governments shall continue to provide budget information as
specified in 600.10, 600.102 and 600.410 and shall be excluded from
this requirement. (Also see 600.10, 600.102 and 600.410 for the other
requirements pertinent to application contents.)
(53 FR 5262, Feb. 22, 1988, as amended at 53 FR 8047, Mar. 11, 1988)
10 CFR 600.204 Instrument conversion.
(a) Conversion of a grant to a cooperative agreement. Subsequent to
the award of a grant, it may be necessary for DOE to become
substantially involved with the participant in the performance of the
project. However, the introduction of substantial involvement does not
by itself constitute a conversion from a grant to a cooperative
agreement relationship nor does it necessarily require tht a change be
made in instrument type.
(1) Determination. When DOE determines in accordance with 600.202
that a cooperative agreement would be the appropriate instrument because
of the necessity for substantial involvement between the parties, and
the substantial involvement is necessary for a period of at least twelve
months beyond the expiration date of the current budget period, DOE will
initiate action to convert the grant to a cooperative agreement.
(2) Conversion. DOE shall notify the grantee of its intention to
convert from a grant to a cooperative agreement as soon as the decision
is made, but no later than sixty days prior to the expiration date of
the current budget period. Conversion of a grant to a cooperative
agreement shall be effected at the time of negotiation of the
continuation or renewal award or any extension of twelve months or more.
A grant may also be converted to a cooperative agreement at any time
after award when it is mutually agreed that DOE should be substantially
involved in the performance of the project. The conversion shall be
accomplished by an amendment to the award. The amendment documents
shall:
(i) Change the instrument-type designation in the award document from
''Grant'' to ''Cooperative Agreement'';
(ii) Indicate that thereafter subpart C of this part shall apply to
the agreement in lieu of subpart B of this part;
(iii) Add a statement of substantial involvement between DOE and the
participant in accordance with 600.202(c); and
(iv) Change any other terms, as appropriate (e.g., special
provisions, reporting), to reflect the increased involvement by DOE.
(3) In the event DOE determines substantial involvement between the
parties is necessary for at least twelve months after the expiration
date of the current budget period and the grantee does not agree to
conversion of the instrument at the time of negotiation, the grantee's
refusal to agree to the conversion will be the basis for not making a
continuation award, renewal award, or extension and the recipient shall
have no right of appeal under 600.26. Any refusal to accept a
cooperative agreement award shall be treated in accordance with 600.22.
(b) Conversion of a cooperative agreement to a grant. A cooperative
agreement may be converted to a grant if DOE determines after award of a
cooperative agreement that the anticipated substantial involvement
between the parties will not be necessary. Conversion of a cooperative
agreement to a grant shall be accomplished by a bilateral amendment to
the award as soon as possible after it is determined that no substantial
involvement will be necessary between DOE and the participant during
performance of the activity. The amendment shall:
(1) Change the instrument type designation in the award document from
''Cooperative Agreement'' to ''Grant'';
(2) Indicate that thereafter subpart B of this part will apply to the
agreement in lieu of subpart C of this part;
(3) Delete the ''Substantial Involvement Between DOE and
Participant'' section from the agreement; and
(4) As necessary, change any other administrative terms which relate
to the substantial involvement between DOE and the participant. If the
participant does not agree to the conversion, DOE shall initiate a
termination of the agreement in accordance with 600.29.
(53 FR 5262, Feb. 22, 1988, as amended at 53 FR 8047, Mar. 11, 1988)
10 CFR 600.205 Application, funding, and administrative requirements.
Unless otherwise specified in this subpart or subpart A of this part,
the application, funding, and administrative requirements for
cooperative agreements are specified in subpart B of this part for
recipients who are other than State, local, or Indian tribal governments
and subpart E of this part for State, local and Indian tribal
governments. Furthermore, the audit requirements set forth in subpart D
of this part shall apply to cooperative agreements with State and local
governments.
(53 FR 8047, Mar. 11, 1988)
10 CFR 600.206 Cost sharing.
In addition to the requirements of 600.107 or 600.424, the
following requirements apply to research, development, and demonstration
projects:
(a) When DOE awards cooperative agreements for research, development,
and demonstration projects where the primary purpose of the project is
the ultimate commercialization and utilization of technology by the
private sector and when there are reasonable expectations that the
participant will receive significant present or future economic benefits
beyond the instant award as a result of the performance of the
cooperative agreement, cost sharing shall be required unless waived by
the cognizant Program Assistant Secretary or designee.
(b) DOE will decide, on a case-by-case basis, the amount of cost
sharing required for a particular project.
(c) Factors in addition to those specified in 600.107(c) or 600.424
which may be considered when negotiating cost sharing for research,
development, and demonstration projects include the potential benefits
to a participant resulting from the project and the length of time
before a project is likely to be commercially successful.
(53 FR 5265 Feb. 22, 1988 as amended at 53 FR 8047, Mar. 11, 1988)
10 CFR 600.207 Patents, data, and copyrights.
(a) General. Cooperative agreements shall be awarded and
administered by DOE in compliance with the patent, data, and copyright
provisions of this section and 48 CFR part 927. DOE shall specify in
each award, the applicable patent, data, and copyright provisions.
(b) Required clauses. DOE shall determine which of the clauses
listed in this paragraph or in 48 CFR part 927 apply, based on DOE
review of the application, other information submitted by the applicant,
and any negotiations. These clauses may be modified by DOE Patent
Counsel, in accordance with the procedures of 48 CFR part 927, for a
particular cooperative agreement or for a class of cooperative
agreements. In each patent, data, and copyright clause selected for
inclusion in the cooperative agreement, the terms ''grant'' or
''contract'' shall be read as ''cooperative agreement'' or
''agreement,'' the terms ''grantee'' or ''contractor'' shall be read as
''participant,'' the term ''subgrant'' shall be read as ''subaward,''
and ''subcontract'' or ''contract'' awarded under a grant shall be read
as ''contract'' under a cooperative agreement.
(1) Patent Rights (Small Business Firm or Nonprofit Organization).
The clause set forth in 600.118(b)(1) shall be included in cooperative
agreements with small business firms and nonprofit organizations where
such cooperative agreements have as a purpose the conduct of
experimental, developmental, demonstration, or research work. The
policies and procedures of 600.118(b)(1) require the small business
firm or nonprofit organization to state in writing that it qualifies as
a small business firm or nonprofit organization. In exceptional
circumstances, DOE may, as determined by Patent Counsel, use a patent
rights clause other than the clause specified in paragraph (b)(1) of
600.118 for such participants. Exceptional circumstances have been
declared for classified subject matter, high level radioactive waste,
and uranium enrichment. In addition, if the cooperative agreement is
affected by an international agreement or treaty, special provisions are
to be included in the clause specified herein.
(2) Patent Rights (Long Form). As specified by 48 CFR 927.300(a),
the clause set forth in 41 CFR 9-9.107-5(a) shall be included in all
cooperative agreements awarded to participants other than small business
firms or nonprofit organizations, where such cooperative agreements have
as a purpose the conduct of experimental, developmental, demonstration,
or research work. The applicant/participant may request in advance of,
or within thirty days after the award is signed, a waiver of all or any
part of the rights of the United States with respect to subject
inventions. DOE shall notify the applicant of this right by inserting
the notice of 48 CFR 952.227-84 in all solicitations which may result in
cooperative agreements calling for experimental, research,
developmental, and demonstration work. For unsolicited applications,
DOE shall provide this notice to the applicant prior to award. If a
waiver is granted, the appropriate waiver clause shall be substituted
for the Patent Rights (Long Form) clause. DOE also may authorize an
advance waiver for a class of awards, when appropriate, and shall
specify the applicable patent rights clause in every award covered by
such a waiver. The clause set forth in 41 CFR 9-9.107-5(a) shall be
modified in accordance with 41 CFR 9-9.107-5, as appropriate.
(3) Rights in Technical Data (Long Form). The clause set forth in 48
CFR 952.227-75 shall be included in all cooperative agreements having as
a purpose the conduct of experimental, developmental, demonstration, or
research work. This clause shall be modified in accordance with 48 CFR
952.227-75 Alternate I and II, as appropriate.
(4) Additional technical data requirements. The clause set forth in
48 CFR 952.227-73 shall be included in all cooperative agreements having
as a purpose the conduct of experimental, developmental, demonstration,
or research work unless all technical data requirements are known in
advance of the agreement and are set forth in the cooperative agreement
project description/statement of work.
(5) Patent indemnity. As specified in 48 CFR 927.300(a), the clause
set forth in 41 CFR 9-9.103-3(b) shall be included in all cooperative
agreements for experimental, developmental, demonstration, or research
work, when DOE determines that the cooperative agreement will require
standard supplies sold or offered for sale to the public on the
commercial open market or will use the participant's practices or
methods which normally are or have been used in providing goods and
services on the commercial open market or will use any parts,
components, practices, or methods to the extent to which the participant
has secured indemnification from liability. The participant shall
include this clause in contracts for the types of activities described
in this paragraph.
(6) Classified inventions. As specified in 48 CFR 927.300(a), the
clause set forth in 41 CFR 9-9.106 shall be included in every
cooperative agreement which covers, or is likely to cover, classified
subject matter.
(7) Authorization and consent. The clause set forth in 600.33(b)(5)
shall be included in all cooperative agreements under which
experimental, developmental, demonstration, or research work is to be
performed within the United States, its possessions, or Puerto Rico.
(8) Notice and assistance. The clause set forth in 600.33(b)(6)
shall be included in all cooperative agreements in excess of $10,000 for
construction, experimental, developmental, demonstration, or research
work which is to be performed within the United States, its possessions,
or Puerto Rico.
(9) Reporting of royalties. In order that DOE may be informed
regarding royalty payments to be made by a participant in connection
with any cooperative agreement where the amount of the royalty payments
is included in the proposed budget, the applicant shall provide:
(i) Information concerning the royalty payments expected to be made
under the cooperative agreement, if awarded, together with the name of
the licensors, and either the patent numbers involved or such other
information as will permit identification of the patents and patent
applications as well as the basis on which the royalties are to be paid;
or
(ii) A certification that the proposed budget includes no amount
representing any royalty that would be paid by the participant directly
to others in connection with the performance of the award.
(iii) If the information or certification specified in paragraphs
(b)(9)(i) and (b)(9)(ii) is not available at the time of award, DOE
shall include the clause set forth in 600.33(c)(2) in any applicable
cooperative agreement award.
(10) Subawards and contracts under cooperative agreements or
subawards. The participant shall include the applicable clauses of this
section in any subaward or contract awarded under a cooperative
agreement and assure that the applicable clauses are also included by
subrecipients in contracts.
(53 FR 5262, Feb. 22, 1988, as amended at 54 FR 23959, June 5, 1989)
10 CFR 600.207 Subpart D -- Audits of State and Local Governments
Source: 50 FR 42357, Oct. 18, 1985 (interim), 51 FR 4297, Feb. 4,
1986 (final), unless otherwise noted.
10 CFR 600.300 Scope and applicability.
This subpart implements, for DOE and recipients, the Single Audit Act
of 1984, Pub. L. 98-502 and OMB Circular A-128. It establishes audit
requirements for State and local governments that receive financial
assistance from the Department of Energy and defines responsibilities
with respect to those requirements.
10 CFR 600.301 Definitions.
For the purposes of this subpart, the following definitions from the
Single Audit Act apply:
(a) Cognizant agency means the Federal agency assigned by the Office
of Management and Budget to carry out the responsibilities described in
600.308 of this subpart.
(b) Federal financial assistance means assistance provided by a
Federal agency in the form of grants, contracts, cooperative agreements,
loans, loan guarantees, property, interest subsidies, insurance, or
direct appropriations, but does not include direct Federal cash
assistance to individuals. It includes awards received directly from
Federal agencies, or indirectly through other units of State and local
governments.
(c) Federal agency has the same meaning as the term 'agency' in
section 551(1) of title 5, United States Code.
(d) Generally accepted accounting principles has the meaning
specified in the generally accepted government auditing standards.
(e) Generally accepted government auditing standards means the
Standards For Audit of Government Organizations, Programs, Activities,
and Functions, developed by the Comptroller General, dated February 27,
1981.
(f) Independent auditor means:
(1) A State or local government auditor who meets the independence
standards specified in generally accepted government auditing standards;
or
(2) A public accountant who meets such independence standards.
(g) Internal controls means the plan of organization and methods and
procedures adopted by management to ensure that:
(1) Resource use in consistent with laws, regulations, and policies;
(2) Resources are safeguarded against waste, loss, and misuse; and
(3) Reliable data are obtained, maintained, and fairly disclosed in
reports.
(h) Indian tribe means any Indian tribe, band, nations, or other
organized group or community, including any Alaskan Native village or
regional or village corporations (as defined in, or established under,
the Alaskan Native Claims Settlement Act) that is recognized by the
United States as eligible for the special programs and services provided
by the United States to Indians because of their status as Indians.
(i) Local government means any unit of local government within a
State, including a county, a borough, municipality, city, town,
township, parish, local public authority, special district, school
district, intrastate district, council of governments, and any other
instrumentality of local government.
(j) Major Federal Assistance Program, for State and local governments
having Federal assistance expenditures between $100,000 and
$100,000,000, means any program for which Federal expenditures during
the applicable year exceed the larger of $300,000, or 3 percent of such
total expenditures.
Where total expenditures of Federal assistance exceed $100,000,000,
the following criteria apply:
(k) Public accountants means those individuals who meet the
qualification standards included in generally accepted government
auditing standards for personnel performing government audits.
(l) State means any State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, the Virgin Islands, Guam,
American Samoa, the Commonwealth of the Northern Mariana Islands, and
the Trust Territory of the Pacific Islands, any instrumentality thereof,
and any multi-State, regional, or interstate entity that has
governmental functions and any Indian tribe.
(m) Subrecipient means any person or government department, agency,
or establishment that receives Federal financial assistance to carry out
a program through a State or local government, but does not include an
individual that is a beneficiary of such a program. A subrecipient may
also be a direct recipient of Federal financial assistance.
10 CFR 600.302 Policy.
The Single Audit Act requires the following:
(a) State or local governments that receive $100,000 or more a year
in Federal financial assistance shall have an audit made in accordance
with this subpart.
(b) State or local governments that receive between $25,000 and
$100,000 a year shall have an audit made in accordance with this subpart
or in accordance with Federal laws and regulations governing the
programs they participate in.
(c) State or local governments that receive less than $25,000 a year
shall be exempt from compliance with the Act and other Federal audit
requirements. These State and local governments shall be governed by
audit requirements prescribed by State or local law or regulation.
(d) Nothing in this paragraph exempts State and local governments
from maintaining records of Federal financial assistance or from
providing access to such records to Federal agencies, as provided for in
Federal law and in 600.25, 600.124, and 600.271.
10 CFR 600.303 Scope of audit.
The Single Audit Act provides that:
(a) The audit shall be made by an independent auditor in accordance
with generally accepted government auditing standards covering financial
and compliance audits.
(b) The audit shall cover the entire operations of a State or local
government or, at the option of that government, it may cover
departments, agencies or establishments that received, expended, or
otherwise administered Federal financial assistance during the year.
However, if a State or local government receives $25,000 or more in
General Revenue Sharing Funds in a fiscal year, it shall have an audit
of its entire operations. A series of audits of individual departments,
agencies, and establishments for the same fiscal year may be considered
a single audit.
(c) Public hospitals and public colleges and universities may be
excluded from State and local audits and the requirements of this
subpart. However, if such entities are excluded, audits of these
entities shall be made in accordance with statutory requirements and the
provisions of 600.120(c) and 600.271.
(d) The auditor shall determine whether:
(1) The financial statements of the government, department, agency or
establishment present fairly its financial position and the results of
its financial operations in accordance with generally accepted
accounting principles;
(2) The organization has internal accounting and other control
systems to provide reasonable assurance that it is managing Federal
financial assistance programs in compliance with applicable laws and
regulations; and
(3) The organization has complied with laws and regulations that may
have material effect on its financial statements and on each major
Federal assistance program.
10 CFR 600.304 Frequency of audit.
Audits shall be made annually unless the State or local government
has, by January 1, 1987, a constitutional or statutory requirement for
less frequent audits. For those governments, the cognizant agency shall
permit biennial audits, covering both years, if the government so
requests. It shall also honor requests for biennial audits by
governments that have an administrative policy calling for audits less
frequent than annual, but only for fiscal years beginning before January
1, 1987.
10 CFR 600.305 Internal control and compliance reviews.
The Single Audit Act requires that the independent auditor determine
and report on whether the organization has internal control systems to
provide reasonable assurance that it is managing Federal assistance
programs in compliance with applicable laws and regulations.
(a) Internal control review. In order to provide this assurance the
auditor must make a study and evaluation of internal control systems
used in administering Federal assistance programs. The study and
evaluation must be made whether or not the auditor intends to place
reliance on such systems. As part of this review, the auditor shall:
(1) Test whether these internal control systems are functioning in
accordance with prescribed procedures.
(2) Examine the recipient's system for monitoring subrecipients and
obtaining and acting on subrecipient audit reports.
(b) Compliance review. The law also requires the auditor to
determine whether the organization has complied with laws and
regulations that may have a material effect on each major Federal
assistance program.
(1) In order to determine which major programs are to be tested for
compliance, State and local governments shall identify in their accounts
all Federal funds received and expended and the programs under which
they were received. This shall include funds received directly from
Federal agencies and through other State and local governments.
(2) The review must include the selection and testing of a
representative number of charges from each major Federal assistance
program. The selection and testing of transactions shall be based on
the auditor's professional judgment considering such factors as the
amount of expenditures for the program and the individual awards; the
newness of the program or changes in its conditions; prior experience
with the program, particularly as revealed in audits and other
evaluations (e.g., inspections, program reviews); the extent to which
the program is carried out through subrecipients; the extent to which
the program contracts for goods or services; the level to which the
program is already subject to program reviews or other forms of
independent oversight; the adequacy of the controls for ensuring
compliance; the expectation of adherence or lack of adherence to the
applicable laws and regulations; and the potential impact of adverse
findings.
(i) In making the test of transactions, the auditor shall determine
whether:
(A) The amounts reported as expenditures were for allowable services,
and
(B) The records show that those who received services or benefits
were eligible to receive them.
(ii) In addition to transaction testing, the auditor shall determine
whether:
(A) Matching requirements, levels of effort and earmarking
limitations were met,
(B) Federal financial reports and claims for advances and
reimbursements contain information that is supported by the books and
records from which the basic financial statements have been prepared,
and
(C) Amounts claimed or used for matching were determined in
accordance with OMB Circular A-87, ''Cost principles for State and local
governments, and 600.424 of subpart E, as implemented by this part.
(iii) The principal compliance requirements of the largest Federal
aid programs may be ascertained by referring to the Compliance
Supplement for Single Audits of State and Local Governments, issued by
OMB and available from the Government Printing Office. For those
programs not covered in the Compliance Supplement, the auditor may
ascertain compliance requirements by researching the statutes,
regulations, and agreements governing individual programs.
(3) Transactions related to other Federal assistance programs that
are selected in connection with examinations of financial statements and
evaluations of internal controls shall be tested for compliance with
Federal laws and regulations that apply to such transactions.
(50 FR 42357, Oct. 18, 1985 (interim), 51 FR 4297, Feb. 4, 1986
(final), as amended at 54 FR 23960, June 5, 1989)
10 CFR 600.306 Subrecipients.
State or local governments that receive Federal financial assistance
and provide $25,000 or more of it in a fiscal year to a subrecipient
shall:
(a) Determine whether State or local subrecipients have met the audit
requirements of this subpart and whether those subrecipients covered by
the audit requirements of 600.120(c) have met those requirements;
(b) Determine whether the subrecipient(s) spent Federal assistance
funds provided in accordance with applicable laws and regulations. This
may be accomplished by reviewing an audit of the subrecipient made in
accordance with this subpart, 600.120(c), or through other means (e.g.,
program reviews) if the subrecipient has not yet had such an audit;
(c) Ensure that appropriate corrective action is taken within six
months after receipt of the audit report in instances of noncompliance
with Federal laws and regulations;
(d) Consider whether subrecipient audits necessitate adjustment of
the recipients own records; and
(e) Require each subrecipient to permit independent auditors to have
access to the records and financial statements as necessary to comply
with this part.
10 CFR 600.307 Relation to other audit requirements.
(a) The Single Audit Act provides that an audit made in accordance
with this subpart shall be in lieu of any financial or financial
compliance audit required under individual Federal assistance programs.
To the extent that a single audit provides DOE with information and
assurances necessary to carry out its overall responsibilities, DOE
shall rely upon and use such information. However, DOE shall make or
have made any additional audits which are necessary to carry out its
responsibilities under Federal law and regulation. Any additional
Federal audit effort shall be planned and carried out in such a way as
to avoid duplication. The DOE Contracting Officer will be the DOE
official responsible for determining the need for any additional Federal
financial and compliance audit after review of the evaluation of the
audit report by the cognizant Federal audit organization and review of
the audit report.
(b) The provisions of this subpart do not limit the authority of
Federal agencies to make, or contract for audits and evaluations of
Federal financial assistance programs, nor do they limit the authority
of any Federal agency Inspector General or other Federal audit official.
(c) The provisions of this subpart do not authorize any State or
local government or subrecipient thereof to constrain Federal agencies,
in any manner, from carrying out additional audits.
(d) If DOE makes or contracts for audits in addition to the audits
made by recipients pursuant to this subpart, DOE shall, consistent with
other applicable laws and regulations, arrange for funding the cost of
such additional audits. Such additional audits include economy and
efficiency audits, program results audits, and program evaluations.
10 CFR 600.308 Cognizant agency responsibilities.
(a) The Single Audit Act provides for cognizant Federal agencies to
oversee the implementation of this subpart by recipients.
(b) The Office of Management and Budget will assign cognizant
agencies for States and their subdivisions and larger local governments
and their subdivisions. (Cognizance assignments/responsibilities for
other types of recipients are not governed by the Single Audit Act or by
this subpart.) Other Federal agencies may participate with an assigned
cognizant agency, in order to fulfill the cognizance responsibilities.
Smaller governments not assigned a cognizant agency will be under the
general oversight of the Federal agency that provides them the most
funds whether directly or indirectly.
(c) When DOE is the cognizant agency, the DOE Office of Inspector
General (DOE-OIG) shall:
(1) Ensure that audits are made and reports are received in a timely
manner and in accordance with the requirements of this subpart.
(2) Provide technical advice and liaison to State and local
governments and independent auditors.
(3) Obtain or make quality control reviews of selected audits made by
non-Federal audit organizations, and provide the results, when
appropriate, to other interested organizations.
(4) Promtly inform other affected Federal agencies and appropriate
Federal law enforcement officials of any reported illegal acts or
irregularities. DOE-OIG will also inform State or local law enforcement
and prosecuting authorities, if not advised by the recipient, of any
violation of law within their jurisdiction.
(5) Advise the recipient of audits that have been found not to have
met the requirements set forth in this subpart. In such instances, the
recipient will be expected to work with the auditor to take corrective
action. If corrective action is not taken, DOE-OIG shall notify the
recipient and Federal awarding agencies of the facts and make
recommendations for followup action. Major inadequacies or repetitive
substandard performance of independent auditors shall be referred to
appropriate professional bodies for disciplinary action.
(6) Coordinate, to the extent practicable, audits made by or for
Federal agencies that are in addition to the audits made pursuant to
this subpart so that the additional audits build upon such audits.
(7) Oversee the resolution of audit findings that affect the programs
of more than one agency.
10 CFR 600.309 Illegal acts or irregularities.
If the auditor becomes aware of illegal acts or other irregularities,
prompt notice shall be given to recipient management officials above the
level of involvement. (See also paragraph 600.310(b)(3) below for the
auditor's reporting responsibilities). The recipient, in turn, shall
promptly notify the cognizant agency of the illegal acts or
irregularities and of proposed and actual actions, if any. Illegal acts
and irregularities include such matters as conflicts of interest,
falsification of records or reports, and misappropriations of funds or
other assets.
10 CFR 600.310 Audit reports.
(a) Audit reports must be prepared at the completion of the audit.
Reports serve many needs of State and local governments as well as
meeting the requirements of the Single Audit Act.
(b) The audit report shall state that the audit was made in
accordance with the provisions of this subpart. The report shall be
made up of at least:
(1) The auditor's report on financial statements and on a schedule of
Federal assistance; the financial statements; and a schedule of
Federal assistance, showing the total expenditures for each Federal
assistance program as identified in the Catalog of Federal Domestic
Assistance. Federal programs or grants that have not been assigned a
catalog number shall be identified under the caption ''other Federal
assistance.''
(2) The auditor's report on the study and evaluation of internal
control systems must identify the organization's significant internal
accounting controls, and those controls designed to provide reasonable
assurance that Federal programs are being managed in compliance with
laws and regulations. It must also identify the controls that were
evaluated, the controls that were not evaluated, and the material
weaknesses identified as a result of the evaluation.
(3) The auditor's report on compliance containing:
(i) A statement of positive assurance with respect to those items
tested for compliance, including compliance with law and regulations
pertaining to financial reports and claims for advances and
reimbursements;
(ii) Negative assurance on those items not tested;
(iii) A summary of all instances of noncompliance; and
(iv) An identification of total amounts questioned, if any, for each
Federal assistance award, as a result of noncompliance.
(c) The three parts of the audit report may be bound into a single
report, or presented at the same time as separate documents.
(d) All fraud, abuse, or illegal acts or indications of such acts,
including all questioned costs found as the result of these acts, that
auditors become aware of, should normally be covered in a separate
written report submitted in accordance with paragraph 600.310(g).
(e) In addition to the audit report, the recipient shall provide
comments on the findings and recommendations in the report, including a
plan for corrective action taken or planned and comments on the status
of corrective action taken on prior findings. If corrective action is
not necessary, a statement describing the reason it is not should
accompany the audit report.
(f) The reports shall be made available by the State or local
government for public inspection within 30 days after the completion of
the audit.
(g) In accordance with generally accepted government audit standards,
reports shall be submitted by the auditor to the organization audited
and to those requiring or arranging for the audit. In addition, the
recipient shall submit copies of the reports to each Federal department
or agency that provided Federal assistance funds to the recipient.
Copies of audit reports to be submitted to DOE shall be submitted to the
appropriate DOE-OIG as indicated in appendix B of this part.
Subrecipients shall submit copies to recipients that provided them
Federal assistance funds. The reports shall be sent within 30 days
after the completion of the audit, but no later than one year after the
end of the audit period unless a longer period is agreed to with the
cognizant agency.
(h) Recipients of more than $100,000 in Federal funds shall submit
one copy of the audit report within 30 days after issuance to the Bureau
of Census, Data Preparation Division, 1201 E. 10th Street,
Jeffersonville, Indiana 47132, Attn: Single Audit Clearinghouse. The
clearinghouse will keep completed audits on file and follow up with
State and local governments that have not submitted required audit
reports.
(i) Recipients shall keep audit reports on file for three years from
their issuance.
(50 FR 42357, Oct. 18, 1985, as amended at 51 FR 4297, Feb. 4, 1986)
10 CFR 600.311 Audit resolution.
(a) As provided in 600.308, the cognizant agency shall be
responsible for monitoring the resolution of audit findings pertaining
to DOE recipients that affect the programs of DOE and one or other more
Federal agency(ies). If DOE is cognizant, a cognizant DOE Contracting
Officer, as determined by the dollar value of awards with the recipient,
will assume this responsibility for the Department. Resolution of
findings that relate to the programs of DOE only will be the
responsibility of the recipient and DOE. Alternate arrangements may be
made on a case-by-case basis by agreement among the agencies concerned.
(b) Resolution shall be made within six months after receipt of the
report by the Federal departments and agencies. Corrective action
should proceed as rapidly as possible.
10 CFR 600.312 Audit workpapers and reports.
Workpapers and reports shall be retained for a minimum of three years
from the date of the audit report, unless the auditor is notified in
writing by the cognizant agency to extend the retention period. Audit
workpapers shall be made available upon request to the cognizant agency
or its designee or the General Accounting Office, at the completion of
the audit.
10 CFR 600.313 Audit costs.
(a) The cost of audits made in accordance with the provisions of this
subpart are allowable charges to DOE and other Federal assistance
programs. The charges may be considered a direct cost or an allocated
indirect cost, determined in accordance with the provisions of Circular
A-87, ''Cost principles for State and local governments,'' as
appropriate.
(b) Generally, the percentage of costs charged to Federal assistance
programs for a single audit shall not exceed the percentage that Federal
funds expended represent of total funds expended by the recipient during
the fiscal year. The percentage may be exceeded, however, if
appropriate documentation demonstrates higher actual cost.
10 CFR 600.314 Sanctions.
(a) The Single Audit Act provides that no cost may be charged to
Federal assistance programs for audits required by the Act that are not
made in accordance with this subpart.
(b) In cases of continued inability or unwillingness to have a proper
audit, DOE shall consider appropriate sanctions, including those
specified in 600.121 of this part and the following:
(1) Withholding a percentage of assistance payments until the audit
is completed satisfactorily,
(2) Withholding or disallowing overhead costs, and
(3) Suspending the Federal assistance agreement until the audit is
made.
10 CFR 600.315 Auditor selection.
In arranging for audit services State and local governments shall
follow the procurement standards prescribed by 600.436 of subpart E.
The standards provide that while recipients are encouraged to enter into
intergovernmental agreements for audit and other services, analysis
should be made to determine whether it would be more economical to
purchase the services from private firms. In instances where use of
such intergovernmental agreements are required by State statutes (e.g.,
audit services) these statutes will take precedence.
(50 FR 42357, Oct. 18, 1985 (interim), 51 FR 4297, Feb. 4, 1986
(final), as amended at 54 FR 23960, June 5, 1989)
10 CFR 600.316 Small and minority audit firms.
Small audit firms and audit firms owned and controlled by socially
and economically disadvantaged individuals shall have the maximum
practicable opportunity to participate in contracts awarded to fulfill
the requirements of this subpart. Recipients of Federal assistance
shall take the following steps to further this goal:
(a) Assure that small audit firms and audit firms owned and
controlled by socially and economically disadvantaged individuals are
used to the fullest extent practicable.
(b) Make information on forthcoming opportunities available and
arrange timeframes for the audit so as to encourage and facilitate
participation by small audit firms and audit firms owned and controlled
by socially and economically disadvantaged individuals.
(c) Consider in the contract process whether firms competing for
large audits intend to subcontract with small audit firms and audit
firms owned and controlled by socially and economically disadvantaged
individuals.
(d) Encourage contracting with small audit firms or audit firms owned
and controlled by socially and economically disadvantaged individuals
which have traditionally audited government programs and, in such cases
where this is not possible, assure that these firms are given
consideration for audit subcontracting opportunities.
(e) Encourage contracting with consortiums of small audit firms as
described in paragraph (a) of this section when a contract is too large
for an individual small audit firm or audit firm owned and controlled by
socially and economically disadvantaged individuals.
(f) Use the services and assistance, as appropriate, of such
organizations as the Small Business Administration in the solicitation
and utilization of small audit firms or audit firms owned and controlled
by socially and economically disadvantaged individuals.
10 CFR 600.317 Reporting.
The Office of the Inspector General, DOE, will report to the Director
of OMB on or before March 1, 1987, and annually thereafter on the
effectiveness of State and local governments in carrying out the
provisions of this subpart. The report will identify each State or
local government or Indian tribe that, in the opinion of the agency, is
failing to comply with this subpart.
10 CFR 600.317 Subpart E -- Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments
Source: 53 FR 8045 and 8087, Mar. 11, 1988, unless otherwise noted.
Editorial Note: For additional information, see related documents
published at 49 FR 24958, June 18, 1984, 52 FR 20178, May 29, 1987, and
53 FR 8028, March 11, 1988.
10 CFR 600.317 General
10 CFR 600.400 Purpose and scope of this subpart.
This subpart establishes uniform administrative rules for Federal
grants and cooperative agreements and subawards to State, local and
Indian tribal governments.
10 CFR 600.401 Scope of 600.400 through 600.405.
This section contains general rules pertaining to this part and
procedures for control of exceptions from this subpart.
10 CFR 600.402 Definitions.
As used in this part:
Accrued expenditures mean the charges incurred by the grantee during
a given period requiring the provision of funds for: (1) Goods and
other tangible property received; (2) services performed by employees,
contractors, subgrantees, subcontractors, and other payees; and (3)
other amounts becoming owed under programs for which no current services
or performance is required, such as annuities, insurance claims, and
other benefit payments.
Accrued income means the sum of: (1) Earnings during a given period
from services performed by the grantee and goods and other tangible
property delivered to purchasers, and (2) amounts becoming owed to the
grantee for which no current services or performance is required by the
grantee.
Acquisition cost of an item of purchased equipment means the net
invoice unit price of the property including the cost of modifications,
attachments, accessories, or auxiliary apparatus necessary to make the
property usable for the purpose for which it was acquired. Other
charges such as the cost of installation, transportation, taxes, duty or
protective in-transit insurance, shall be included or excluded from the
unit acquisition cost in accordance with the grantee's regular
accounting practices.
Administrative requirements mean those matters common to grants in
general, such as financial management, kinds and frequency of reports,
and retention of records. These are distinguished from programmatic
requirements, which concern matters that can be treated only on a
program-by-program or grant-by-grant basis, such as kinds of activities
that can be supported by grants under a particular program.
Awarding agency means (1) with respect to a grant, the Federal
agency, and (2) with respect to a subgrant, the party that awarded the
subgrant.
Cash contributions means the grantee's cash outlay, including the
outlay of money contributed to the grantee or subgrantee by other public
agencies and institutions, and private organizations and individuals.
When authorized by Federal legislation, Federal funds received from
other assistance agreements may be considered as grantee or subgrantee
cash contributions.
Contract means (except as used in the definitions for grant and
subgrant in this section and except where qualified by Federal) a
procurement contract under a grant or subgrant, and means a procurement
subcontract under a contract.
Cost sharing or matching means the value of the third party in-kind
contributions and the portion of the costs of a federally assisted
project or program not borne by the Federal Government.
Cost-type contract means a contract or subcontract under a grant in
which the contractor or subcontractor is paid on the basis of the costs
it incurs, with or without a fee.
Equipment means tangible, nonexpendable, personal property having a
useful life of more than one year and an acquisition cost of $5,000 or
more per unit. A grantee may use its own definition of equipment
provided that such definition would at least include all equipment
defined above.
Expenditure report means: (1) For nonconstruction grants, the SF-269
''Financial Status Report'' (or other equivalent report); (2) for
construction grants, the SF-271 ''Outlay Report and Request for
Reimbursement'' (or other equivalent report).
Federally recognized Indian tribal government means the governing
body or a governmental agency of any Indian tribe, band, nation, or
other organized group or community (including any Native village as
defined in section 3 of the Alaska Native Claims Settlement Act, 85 Stat
688) certified by the Secretary of the Interior as eligible for the
special programs and services provided by him through the Bureau of
Indian Affairs.
Government means a State or local government or a federally
recognized Indian tribal government.
Grant means an award of financial assistance, including cooperative
agreements, in the form of money, or property in lieu of money, by the
Federal Government to an eligible grantee. The term does not include
technical assistance which provides services instead of money, or other
assistance in the form of revenue sharing, loans, loan guarantees,
interest subsidies, insurance, or direct appropriations. Also, the term
does not include assistance, such as a fellowship or other lump sum
award, which the grantee is not required to account for.
Grantee means the government to which a grant is awarded and which is
accountable for the use of the funds provided. The grantee is the
entire legal entity even if only a particular component of the entity is
designated in the grant award document.
Local government means a county, municipality, city, town, township,
local public authority (including any public and Indian housing agency
under the United States Housing Act of 1937) school district, special
district, intrastate district, council of governments (whether or not
incorporated as a nonprofit corporation under state law), any other
regional or interstate government entity, or any agency or
instrumentality of a local government.
Obligations means the amounts of orders placed, contracts and
subgrants awarded, goods and services received, and similar transactions
during a given period that will require payment by the grantee during
the same or a future period.
OMB means the United States Office of Management and Budget.
Outlays (expenditures) mean charges made to the project or program.
They may be reported on a cash or accrual basis. For reports prepared
on a cash basis, outlays are the sum of actual cash disbursement for
direct charges for goods and services, the amount of indirect expense
incurred, the value of in-kind contributions applied, and the amount of
cash advances and payments made to contractors and subgrantees. For
reports prepared on an accrued expenditure basis, outlays are the sum of
actual cash disbursements, the amount of indirect expense incurred, the
value of inkind contributions applied, and the new increase (or
decrease) in the amounts owed by the grantee for goods and other
property received, for services performed by employees, contractors,
subgrantees, subcontractors, and other payees, and other amounts
becoming owed under programs for which no current services or
performance are required, such as annuities, insurance claims, and other
benefit payments.
Percentage of completion method refers to a system under which
payments are made for construction work according to the percentage of
completion of the work, rather than to the grantee's cost incurred.
Prior approval means documentation evidencing consent prior to
incurring specific cost. For the Department of Energy, this must be
signed by a Contracting Officer.
Real property means land, including land improvements, structures and
appurtenances thereto, excluding movable machinery and equipment.
Share, when referring to the awarding agency's portion of real
property, equipment or supplies, means the same percentage as the
awarding agency's portion of the acquiring party's total costs under the
grant to which the acquisition costs under the grant to which the
acquisition cost of the property was charged. Only costs are to be
counted -- not the value of third-party in-kind contributions.
State means any of the several States of the United States, the
District of Columbia, the Commonwealth of Puerto Rico, any territory or
possession of the United States, or any agency or instrumentality of a
State exclusive of local governments. The term does not include any
public and Indian housing agency under United States Housing Act of
1937.
Subgrant means an award of financial assistance in the form of money,
or property in lieu of money, made under a grant by a grantee to an
eligible subgrantee. The term includes financial assistance when
provided by contractual legal agreement, but does not include
procurement purchases, nor does it include any form of assistance which
is excluded from the definition of grant in this subpart.
Subgrantee means the government or other legal entity to which a
subgrant is awarded and which is accountable to the grantee for the use
of the funds provided.
Supplies means all tangible personal property other than
''equipment'' as defined in this subpart.
Suspension means depending on the context, either (1) temporary
withdrawal of the authority to obligate grant funds pending corrective
action by the grantee or subgrantee or a decision to terminate the
grant, or (2) an action taken by a suspending official in accordance
with agency regulations implementing E.O. 12549 to immediately exclude a
person from participating in grant transactions for a period, pending
completion of an investigation and such legal or debarment proceedings
as may ensue.
Termination means permanent withdrawal of the authority to obligate
previously-awarded grant funds before that authority would otherwise
expire. It also means the voluntary relinquishment of that authority by
the grantee or subgrantee. Termination does not include: (1)
Withdrawal of funds awarded on the basis of the grantee's underestimate
of the unobligated balance in a prior period; (2) Withdrawal of the
unobligated balance as of the expiration of a grant; (3) Refusal to
extend a grant or award additional funds, to make a competing or
noncompeting continuation, renewal, extension, or supplemental award;
or (4) voiding of a grant upon determination that the award was obtained
fraudulently, or was otherwise illegal or invalid from inception.
Terms of a grant or subgrant mean all requirements of the grant or
subgrant, whether in statute, regulations, or the award document.
Third party in-kind contributions mean property or services which
benefit a federally assisted project or program and which are
contributed by non-Federal third parties without charge to the grantee,
or a cost-type contractor under the grant agreement.
Unliquidated obligations for reports prepared on a cash basis mean
the amount of obligations incurred by the grantee that has not been
paid. For reports prepared on an accrued expenditure basis, they
represent the amount of obligations incurred by the grantee for which an
outlay has not been recorded.
Unobligated balance means the portion of the funds authorized by the
Federal agency that has not been obligated by the grantee and is
determined by deducting the cumulative obligations from the cumulative
funds authorized.
(53 FR 8087, Mar. 11, 1988, as amended at 53 FR 8047, March 11, 1988;
54 FR 23960, June 5, 1989)
10 CFR 600.403 Applicability.
(a) General. Sections 600.400 through 600.452 of this subpart apply
to all grants and subgrants to governments, except where inconsistent
with Federal statutes or with regulations authorized in accordance with
the exception provision of 600.405, or:
(1) Grants and subgrants to State and local institutions of higher
education or State and local hospitals.
(2) The block grants authorized by the Omnibus Budget Reconciliation
Act of 1981 (Community Services; Preventive Health and Health Services;
Alcohol, Drug Abuse, and Mental Health Services; Maternal and Child
Health Services; Social Services; Low-Income Home Energy Assistance;
States' Program of Community Development Block Grants for Small Cities;
and Elementary and Secondary Education other than programs administered
by the Secretary of Education under Title V, Subtitle D, Chapter 2,
Section 583 -- the Secretary's discretionary grant program) and Titles
I-III of the Job Training Partnership Act of 1982 and under the Public
Health Services Act (Section 1921), Alcohol and Drug Abuse Treatment and
Rehabilitation Block Grant and part C of Title V, Mental Health Service
for the Homeless Block Grant).
(3) Entitlement grants to carry out the following programs of the
Social Security Act:
(i) Aid to Needy Families with Dependent Children (Title IV-A of the
Act, not including the Work Incentive Program (WIN) authorized by
section 402(a)19(G); HHS grants for WIN are subject to this subpart);
(ii) Child Support Enforcement and Establishment of Paternity (Title
IV-D of the Act);
(iii) Foster Care and Adoption Assistance (Title IV-E of the Act);
(iv) Aid to the Aged, Blind, and Disabled (Titles I, X, XIV, and
XVI-AABD of the Act); and
(v) Medical Assistance (Medicaid) (Title XIX of the Act) not
including the State Medicaid Fraud Control program authorized by section
1903(a)(6)(B).
(4) Entitlement grants under the following programs of The National
School Lunch Act:
(i) School Lunch (section 4 of the Act),
(ii) Commodity Assistance (section 6 of the Act),
(iii) Special Meal Assistance (section 11 of the Act),
(iv) Summer Food Service for Children (section 13 of the Act), and
(v) Child Care Food Program (section 17 of the Act).
(5) Entitlement grants under the following programs of The Child
Nutrition Act of 1966:
(i) Special Milk (section 3 of the Act), and
(ii) School Breakfast (section 4 of the Act).
(6) Entitlement grants for State Administrative expenses under The
Food Stamp Act of 1977 (section 16 of the Act).
(7) A grant for an experimental, pilot, or demonstration project that
is also supported by a grant listed in paragraph (a)(3) of this section;
(8) Grant funds awarded under subsection 412(e) of the Immigration
and Nationality Act (8 U.S.C. 1522(e)) and subsection 501(a) of the
Refugee Education Assistance Act of 1980 (Pub. L. 96-422, 94 Stat.
1809), for cash assistance, medical assistance, and supplemental
security income benefits to refugees and entrants and the administrative
costs of providing the assistance and benefits;
(9) Grants to local education agencies under 20 U.S.C. 236 through
241-1(a), and 242 through 244 (portions of the Impact Aid program),
except for 20 U.S.C. 238(d)(2)(c) and 240(f) (Entitlement Increase for
Handicapped Children); and
(10) Payments under the Veterans Administration's State Home Per Diem
Program (38 U.S.C. 641(a)).
(b) Entitlement programs. Entitlement programs enumerated above in
600.403(a) (3) through (8) are subject to Subpart E.
(53 FR 8045 and 8087, Mar. 11, 1988, as amended at 54 FR 23960, June
5, 1989)
10 CFR 600.404 Effect on other issuances.
All other grants administration provisions of codified program
regulations, program manuals, handbooks and other nonregulatory
materials which are inconsistent with this subpart are superseded,
except to the extent they are required by statute, or authorized in
accordance with the exception provision in 600.405.
10 CFR 600.405 Additions and exceptions.
(a) For classes of grants and grantees subject to this subpart,
Federal agencies may not impose additional administrative requirements
except in codified regulations published in the Federal Register.
(b) Exceptions for classes of grants or grantees may be authorized
only by OMB.
(c) Exceptions on a case-by-case basis and for subgrantees may be
authorized by the affected Federal agencies.
(d) The DOE procedural requirements for requesting additions and
exceptions are specified in 600.4.
(53 FR 8087, Mar. 11, 1988, as amended at 53 FR 8047, Mar. 11, 1988)
10 CFR 600.405 Pre-Award Requirements
10 CFR 600.410 Forms for applying for grants.
(a) Scope. (1) This section prescribes forms and instructions to be
used by governmental organizations (except hospitals and institutions of
higher education operated by a government) in applying for grants. This
section is not applicable, however, to formula grant programs which do
not require applicants to apply for funds on a project basis.
(2) This section applies only to applications to Federal agencies for
grants, and is not required to be applied by grantees in dealing with
applicants for subgrants. However, grantees are encouraged to avoid
more detailed or burdensome application requirements for subgrants.
(b) Authorized forms and instructions for governmental organizations.
(1) In applying for grants, applicants shall only use standard
application forms or those prescribed by the granting agency with the
approval of OMB under the Paperwork Reduction Act of 1980.
(2) Applicants are not required to submit more than the original and
two copies of preapplications or applications.
(3) Applicants must follow all applicable instructions that bear OMB
clearance numbers. Federal agencies may specify and describe the
programs, functions, or activities that will be used to plan, budget,
and evaluate the work under a grant. Other supplementary instructions
may be issued only with the approval of OMB to the extent required under
the Paperwork Reduction Act of 1980. For any standard form, except the
SF-424 facesheet, Federal agencies may shade out or instruct the
applicant to disregard any line item that is not needed.
(4) When a grantee applies for additional funding (such as a
continuation or supplemental award) or amends a previously submitted
application, only the affected pages need be submitted. Previously
submitted pages with information that is still current need not be
resubmitted.
10 CFR 600.411 State plans.
(a) Scope. The statutes for some programs require States to submit
plans before receiving grants. Under regulations implementing Executive
Order 12372, ''Intergovernmental Review of Federal Programs,'' States
are allowed to simplify, consolidate and substitute plans. This section
contains additional provisions for plans that are subject to regulations
implementing the Executive order.
(b) Requirements. A State need meet only Federal administrative or
programmatic requirements for a plan that are in statutes or codified
regulations.
(c) Assurances. In each plan the State will include an assurance
that the State shall comply with all applicable Federal statutes and
regulations in effect with respect to the periods for which it receives
grant funding. For this assurance and other assurances required in the
plan, the State may:
(1) Cite by number the statutory or regulatory provisions requiring
the assurances and affirm that it gives the assurances required by those
provisions,
(2) Repeat the assurance language in the statutes or regulations, or
(3) Develop its own language to the extent permitted by law.
(d) Amendments. A State will amend a plan whenever necessary to
reflect: (1) New or revised Federal statutes or regulations or (2) a
material change in any State law, organization, policy, or State agency
operation. The State will obtain approval for the amendment and its
effective date but need submit for approval only the amended portions of
the plan.
10 CFR 600.412 Special grant or subgrant conditions for ''high-risk''
grantees.
(a) A grantee or subgrantee may be considered ''high risk'' if an
awarding agency determines that a grantee or subgrantee:
(1) Has a history of unsatisfactory performance, or
(2) Is not financially stable, or
(3) Has a management system which does not meet the management
standards set forth in this subpart, or
(4) Has not conformed to terms and conditions of previous awards, or
(5) Is otherwise not responsible; and if the awarding agency
determines that an award will be made, special conditions and/or
restrictions shall correspond to the high risk condition and shall be
included in the award.
(b) Special conditions or restrictions may include:
(1) Payment on a reimbursement basis;
(2) Withholding authority to proceed to the next phase until receipt
of evidence of acceptable performance within a given funding period;
(3) Requiring additional, more detailed financial reports;
(4) Additional project monitoring;
(5) Requiring the grante or subgrantee to obtain technical or
management assistance; or
(6) Establishing additional prior approvals.
(c) If an awarding agency decides to impose such conditions, the
awarding official will notify the grantee or subgrantee as early as
possible, in writing, of:
(1) The nature of the special conditions/restrictions;
(2) The reason(s) for imposing them;
(3) The corrective actions which must be taken before they will be
removed and the time allowed for completing the corrective actions and
(4) The method of requesting reconsideration of the
conditions/restrictions imposed.
10 CFR 600.412 Post-Award Requirements
10 CFR 600.412 Financial Administration
10 CFR 600.420 Standards for financial management systems.
(a) A State must expend and account for grant funds in accordance
with State laws and procedures for expending and accounting for its own
funds. Fiscal control and accounting procedures of the State, as well
as its subgrantees and cost-type contractors, must be sufficient to --
(1) Permit preparation of reports required by this part and the
statutes authorizing the grant, and
(2) Permit the tracing of funds to a level of expenditures adequate
to establish that such funds have not been used in violation of the
restrictions and prohibitions of applicable statutes.
(b) The financial management systems of other grantees and
subgrantees must meet the following standards:
(1) Financial reporting. Accurate, current, and complete disclosure
of the financial results of financially assisted activities must be made
in accordance with the financial reporting requirements of the grant or
subgrant.
(2) Accounting records. Grantees and subgrantees must maintain
records which adequately identify the source and application of funds
provided for financially-assisted activities. These records must
contain information pertaining to grant or subgrant awards and
authorizations, obligations, unobligated balances, assets, liabilities,
outlays or expenditures, and income.
(3) Internal control. Effective control and accountability must be
maintained for all grant and subgrant cash, real and personal property,
and other assets. Grantees and subgrantees must adequately safeguard
all such property and must assure that it is used solely for authorized
purposes.
(4) Budget control. Actual expenditures or outlays must be compared
with budgeted amounts for each grant or subgrant. Financial information
must be related to performance or productivity data, including the
development of unit cost information whenever appropriate or
specifically required in the grant or subgrant agreement. If unit cost
data are required, estimates based on available documentation will be
accepted whenever possible.
(5) Allowable cost. Applicable OMB cost principles, agency program
regulations, and the terms of grant and subgrant agreements will be
followed in determining the reasonableness, allowability, and
allocability of costs.
(6) Source documentation. Accounting records must be supported by
such source documentation as cancelled checks, paid bills, payrolls,
time and attendance records, contract and subgrant award documents, etc.
(7) Cash management. Procedures for minimizing the time elapsing
between the transfer of funds from the U.S. Treasury and disbursement by
grantees and subgrantees must be followed whenever advance payment
procedures are used. Grantees must establish reasonable procedures to
ensure the receipt of reports on subgrantees' cash balances and cash
disbursements in sufficient time to enable them to prepare complete and
accurate cash transactions reports to the awarding agency. When
advances are made by letter-of-credit or electronic transfer of funds
methods, the grantee must make drawdowns as close as possible to the
time of making disbursements. Grantees must monitor cash drawdowns by
their subgrantees to assure that they conform substantially to the same
standards of timing and amount as apply to advances to the grantees.
(c) An awarding agency may review the adequacy of the financial
management system of any applicant for financial assistance as part of a
preaward review or at any time subsequent to award.
(53 FR 8045 and 8087, Mar. 11, 1988, as amended at 57 FR 5, Jan. 2,
1992)
Effective Date Note: At 57 FR 5, Jan. 2, 1992, 600.420 was amended
the first sentence of paragraph (a), by correcting ''expand'' to read
''expend'', effective February 3, 1992.
10 CFR 600.421 Payment.
(a) Scope. This section prescribes the basic standard and the
methods under which a Federal agency will make payments to grantees, and
grantees will make payments to subgrantees and contractors.
(b) Basic standard. Methods and procedures for payment shall
minimize the time elapsing between the transfer of funds and
disbursement by the grantee or subgrantee, in accordance with Treasury
regulations at 31 CFR part 205.
(c) Advances. Grantees and subgrantees shall be paid in advance,
provided they maintain or demonstrate the willingness and ability to
maintain procedures to minimize the time elapsing between the transfer
of the funds and their disbursement by the grantee or subgrantee.
(d) Reimbursement. Reimbursement shall be the preferred method when
the requirements in paragraph (c) of this section are not met. Grantees
and subgrantees may also be paid by reimbursement for any construction
grant. Except as otherwise specified in regulation, Federal agencies
shall not use the percentage of completion method to pay construction
grants. The grantee or subgrantee may use that method to pay its
construction contractor, and if it does, the awarding agency's payments
to the grantee or subgrantee will be based on the grantee's or
subgrantee's actual rate of disbursement.
(e) Working capital advances. If a grantee cannot meet the criteria
for advance payments described in paragraph (c) of this section, and the
Federal agency has determined that reimbursement is not feasible because
the grantee lacks sufficient working capital, the awarding agency may
provide cash or a working capital advance basis. Under this procedure
the awarding agency shall advance cash to the grantee to cover its
estimated disbursement needs for an initial period generally geared to
the grantee's disbursing cycle. Thereafter, the awarding agency shall
reimburse the grantee for its actual cash disbursements. The working
capital advance method of payment shall not be used by grantees or
subgrantees if the reason for using such method is the unwillingness or
inability of the grantee to provide timely advances to the subgrantee to
meet the subgrantee's actual cash disbursements.
(f) Effect of program income, refunds, and audit recoveries on
payment. (1) Grantees and subgrantees shall disburse repayments to and
interest earned on a revolving fund before requesting additional cash
payments for the same activity.
(2) Except as provided in paragraph (f)(1) of this section, grantees
and subgrantees shall disburse program income, rebates, refunds,
contract settlements, audit recoveries and interest earned on such funds
before requesting additional cash payments.
(g) Withholding payments. (1) Unless otherwise required by Federal
statute, awarding agencies shall not withhold payments for proper
charges incurred by grantees or subgrantees unless --
(i) The grantee or subgrantee has failed to comply with grant award
conditions or
(ii) The grantee or subgrantee is indebted to the United States.
(2) Cash withheld for failure to comply with grant award condition,
but without suspension of the grant, shall be released to the grantee
upon subsequent compliance. When a grant is suspended, payment
adjustments will be made in accordance with 600.443(c).
(3) A Federal agency shall not make payment to grantees for amounts
that are withheld by grantees or subgrantees from payment to contractors
to assure satisfactory completion of work. Payments shall be made by
the Federal agency when the grantees or subgrantees actually disburse
the withheld funds to the contractors or to escrow accounts established
to assure satisfactory completion of work.
(h) Cash depositories. (1) Consistent with the national goal of
expanding the opportunities for minority business enterprises, grantees
and subgrantees are encouraged to use minority banks (a bank which is
owned at least 50 percent by minority group members). A list of
minority owned banks can be obtained from the Minority Business
Development Agency, Department of Commerce, Washington, DC 20230.
(2) A grantee or subgrantee shall maintain a separate bank account
only when required by Federal-State agreement.
(i) Interest earned on advances. Unless there are statutory
provisions to the contrary, grantees and subgrantees shall promptly, but
at least quarterly, remit to the Federal agency interest earned on
advances. The grantee or subgrantee may keep interest amounts up to
$100 per year for administrative expenses.
(53 FR 8045 and 8087, Mar. 11, 1988, as amended at 57 FR 5, Jan. 2,
1992)
Effective Date Note: At 57 FR 5, Jan. 2, 1992, 600.421 was amende
by revising paragraph (i), effective February 3, 1992. For the
convenience of the user, the superseded text is as follows.
600.421 Payment.
(i) Interest earned on advances. Except for interest earned on
advances of funds exempt under the Intergovernmental Cooperation Act (31
U.S.C. 6501 et seq.) and the Indian Self-Determination Act (23 U.S.C.
450), grantees and subgrantees shall promptly, but at least quarterly,
remit interest earned on advances to the Federal agency. The grantee or
subgrantee may keep interest amounts up to $100 per year for
administrative expenses.
10 CFR 600.422 Allowable costs.
(a) Limitation on use of funds. Grant funds may be used only for:
(1) The allowable costs of the grantees, subgrantees and cost-type
contractors, including allowable costs in the form of payments to
fixed-price contractors; and
(2) Reasonable fees or profit to cost-type contractors but not any
fee or profit (or other increment above allowable costs) to the grantee
or subgrantee.
(b) Applicable cost principles. For each kind of organization, there
is a set of Federal principles for determining allowable costs.
Allowable costs will be determined in accordance with the cost
principles applicable to the organization incurring the costs. The
following chart lists the kinds of organizations and the applicable cost
principles.
(53 FR 8087, March 11, 1988 as amended at 53 FR 8047, March 11, 1988)
10 CFR 600.423 Period of availability of funds.
(a) General. Where a funding period is specified, a grantee may
charge to the award only costs resulting from obligations of the funding
period unless carryover of unobligated balances is permitted, in which
case the carryover balances may be charged for costs resulting from
obligations of the subsequent funding period.
(b) Liquidation of obligations. A grantee must liquidate all
obligations incurred under the award not later than 90 days after the
end of the funding period (or as specified in a program regulation) to
coincide with the submission of the annual Financial Status Report
(SF-269). The Federal agency may extend this deadline at the request of
the grantee.
10 CFR 600.424 Matching or cost sharing.
(a) Basic rule: Costs and contributions acceptable. With the
qualifications and exceptions listed in paragraph (b) of this section, a
matching or cost sharing requirement may be satisfied by either or both
of the following:
(1) Allowable costs incurred by the grantee, subgrantee or a
cost-type contractor under the assistance agreement. This includes
allowable costs borne by non-Federal grants or by others cash donations
from non-Federal third parties.
(2) The value of third party in-kind contributions applicable to the
period to which the cost sharing or matching requirements applies.
(b) Qualifications and exceptions -- (1) Costs borne by other Federal
grant agreements. Except as provided by Federal statute, a cost sharing
or matching requirement may not be met by costs borne by another Federal
grant. This prohibition does not apply to income earned by a grantee or
subgrantee from a contract awarded under another Federal grant.
(2) General revenue sharing. For the purpose of this section,
general revenue sharing funds distributed under 31 U.S.C. 6702 are not
considered Federal grant funds.
(3) Cost or contributions counted towards other Federal costs-sharing
requirements. Neither costs nor the values of third party in-kind
contributions may count towards satisfying a cost sharing or matching
requirement of a grant agreement if they have been or will be counted
towards satisfying a cost sharing or matching requirement of another
Federal grant agreement, a Federal procurement contract, or any other
award of Federal funds.
(4) Costs financed by program income. Costs financed by program
income, as defined in 600.425, shall not count towards satisfying a
cost sharing or matching requirement unless they are expressly permitted
in the terms of the assistance agreement. (This use of general program
income is described in 600.425(g).)
(5) Services or property financed by income earned by contractors.
Contractors under a grant may earn income from the activities carried
out under the contract in addition to the amounts earned from the party
awarding the contract. No costs of services or property supported by
this income may count toward satisfying a cost sharing or matching
requirement unless other provisions of the grant agreement expressly
permit this kind of income to be used to meet the requirement.
(6) Records. Costs and third party in-kind contributions counting
towards satisfying a cost sharing or matching requirement must be
verifiable from the records of grantees and subgrantee or cost-type
contractors. These records must show how the value placed on third
party in-kind contributions was derived. To the extent feasible,
volunteer services will be supported by the same methods that the
organization uses to support the allocability of regular personnel
costs.
(7) Special standards for third party in-kind contributions. (i)
Third party in-kind contributions count towards satisfying a cost
sharing or matching requirement only where, if the party receiving the
contributions were to pay for them, the payments would be allowable
costs.
(ii) Some third party in-kind contributions are goods and services
that, if the grantee, subgrantee, or contractor receiving the
contribution had to pay for them, the payments would have been an
indirect costs. Cost sharing or matching credit for such contributions
shall be given only if the grantee, subgrantee, or contractor has
established, along with its regular indirect cost rate, a special rate
for allocating to individual projects or programs the value of the
contributions.
(iii) A third party in-kind contribution to a fixed-price contract
may count towards satisfying a cost sharing or matching requirement only
if it results in:
(A) An increase in the services or property provided under the
contract (without additional cost to the grantee or subgrantee) or
(B) A cost savings to the grantee or subgrantee.
(iv) The values placed on third party in-kind contributions for cost
sharing or matching purposes will conform to the rules in the succeeding
sections of this subpart. If a third party in-kind contribution is a
type not treated in those sections, the value placed upon it shall be
fair and reasonable.
(c) Valuation of donated services -- (1) Volunteer services. Unpaid
services provided to a grantee or subgrantee by individuals will be
valued at rates consistent with those ordinarily paid for similar work
in the grantee's or subgrantee's organization. If the grantee or
subgrantee does not have employees performing similar work, the rates
will be consistent with those ordinarily paid by other employers for
similar work in the same labor market. In either case, a reasonable
amount for fringe benefits may be included in the valuation.
(2) Employees of other organizations. When an employer other than a
grantee, subgrantee, or cost-type contractor furnishes free of charge
the services of an employee in the employee's normal line of work, the
services will be valued at the employee's regular rate of pay exclusive
of the employee's fringe benefits and overhead costs. If the services
are in a different line of work, paragraph (c)(1) of this section
applies.
(d) Valuation of third party donated supplies and loaned equipment or
space. (1) If a third party donates supplies, the contribution will be
valued at the market value of the supplies at the time of donation.
(2) If a third party donates the use of equipment or space in a
building but retains title, the contribution will be valued at the fair
rental rate of the equipment or space.
(e) Valuation of third party donated equipment, buildings, and land.
If a third party donates equipment, buildings, or land, and title passes
to a grantee or subgrantee, the treatment of the donated property will
depend upon the purpose of the grant or subgrant, as follows:
(1) Awards for capital expenditures. If the purpose of the grant or
subgrant is to assist the grantee or subgrantee in the acquisition of
property, the market value of that property at the time of donation may
be counted as cost sharing or matching,
(2) Other awards. If assisting in the acquisition of property is not
the purpose of the grant or subgrant, paragraphs (e)(2) (i) and (ii) of
this section apply:
(i) If approval is obtained from the awarding agency, the market
value at the time of donation of the donated equipment or buildings and
the fair rental rate of the donated land may be counted as cost sharing
or matching. In the case of a subgrant, the terms of the grant
agreement may require that the approval be obtained from the Federal
agency as well as the grantee. In all cases, the approval may be given
only if a purchase of the equipment or rental of the land would be
approved as an allowable direct cost. If any part of the donated
property was acquired with Federal funds, only the non-federal share of
the property may be counted as cost-sharing or matching.
(ii) If approval is not obtained under paragraph (e)(2)(i) of this
section, no amount may be counted for donated land, and only
depreciation or use allowances may be counted for donated equipment and
buildings. The depreciation or use allowances for this property are not
treated as third party in-kind contributions. Instead, they are treated
as costs incurred by the grantee or subgrantee. They are computed and
allocated (usually as indirect costs) in accordance with the cost
principles specified in 600.422, in the same way as depreciation or use
allowances for purchased equipment and buildings. The amount of
depreciation or use allowances for donated equipment and buildings is
based on the property's market value at the time it was donated.
(f) Valuation of grantee or subgrantee donated real property for
construction/acquisition. If a grantee or subgrantee donates real
property for a construction or facilities acquisition project, the
current market value of that property may be counted as cost sharing or
matching. If any part of the donated property was acquired with Federal
funds, only the non-federal share of the property may be counted as cost
sharing or matching.
(g) Appraisal of real property. In some cases under paragraphs (d),
(e) and (f) of this section, it will be necessary to establish the
market value of land or a building or the fair rental rate of land or of
space in a building. In these cases, the Federal agency may require the
market value or fair rental value be set by an independent appraiser,
and that the value or rate be certified by the grantee. This
requirement will also be imposed by the grantee on subgrantees.
(53 FR 8045 and 8087, Mar. 11, 1988, as amended at 57 FR 5, Jan. 2,
1992)
Effective Date Note: At 57 FR 5, Jan. 2, 1992, 600.424 was amended
in the second sentence of paragraph (b)(7)(ii) by correcting ''costs''
to read ''cost''.
10 CFR 600.425 Program income.
(a) General. Grantees are encouraged to earn income to defray
program costs. Program income includes income from fees for services
performed, from the use or rental of real or personal property acquired
with grant funds, from the sale of commodities or items fabricated under
a grant agreement, and from payments of principal and interest on loans
made with grant funds. Except as otherwise provided in regulations of
the Federal agency, program income does not include interest on grant
funds, rebates, credits, discounts, refunds, etc. and interest earned
on any of them.
(b) Definition of program income. Program income means gross income
received by the grantee or subgrantee directly generated by a grant
supported activity, or earned only as a result of the grant agreement
during the grant period. ''During the grant period'' is the time
between the effective date of the award and the ending date of the award
reflected in the final financial report.
(c) Cost of generating program income. If authorized by Federal
regulations or the grant agreement, costs incident to the generation of
program income may be deducted from gross income to determine program
income.
(d) Governmental revenues. Taxes, special assessments, levies,
fines, and other such revenues raised by a grantee or subgrantee are not
program income unless the revenues are specifically identified in the
grant agreement or Federal agency regulations as program income.
(e) Royalties. Income from royalties and license fees for
copyrighted material, patents, and inventions developed by a grantee or
subgrantee is program income only if the revenues are specifically
identified in the grant agreement or Federal agency regulations as
program income. (See 600.434.)
(f) Property. Proceeds from the sale of real property or equipment
will be handled in accordance with the requirements of 600.431 and
600.432.
(g) Use of program income. Program income shall be deducted from
outlays which may be both Federal and non-Federal as described below,
unless the Federal agency regulations or the grant agreement specify
another alternative (or a combination of the alternatives). In
specifying alternatives, the Federal agency may distinguish between
income earned by the grantee and income earned by subgrantees and
between the sources, kinds, or amounts of income. When Federal agencies
authorize the alternatives in paragraphs (g) (2) and (3) of this
section, program income in excess of any limits stipulated shall also be
deducted from outlays.
(1) Deduction. Ordinarily program income shall be deducted from
total allowable costs to determine the net allowable costs. Program
income shall be used for current costs unless the Federal agency
authorizes otherwise. Program income which the grantee did not
anticipate at the time of the award shall be used to reduce the Federal
agency and grantee contributions rather than to increase the funds
committed to the project.
(2) Addition. When authorized, program income may be added to the
funds committed to the grant agreement by the Federal agency and the
grantee. The program income shall be used for the purposes and under
the conditions of the grant agreement.
(3) Cost sharing or matching. When authorized, program income may be
used to meet the cost sharing or matching requirement of the grant
agreement. The amount of the Federal grant award remains the same.
(h) Income after the award period. There are no Federal requirements
governing the disposition of program income earned after the end of the
award period (i.e., until the ending date of the final financial report,
see paragraph (a) of this section), unless the terms of the agreement or
the Federal agency regulations provide otherwise.
10 CFR 600.426 Non-Federal audit.
(a) Basic rule. Grantees and subgrantees are responsible for
obtaining audits in accordance with the Single Audit Act of 1984 (31
U.S.C. 7501-7) and Federal agency implementing regulations. The audits
shall be made by an independent auditor in accordance with generally
accepted government auditing standards covering financial and compliance
audits.
(b) Subgrantees. State or local governments, as those terms are
defined for purposes of the Single Audit Act, that receive Federal
financial assistance and provide $25,000 or more of it in a fiscal year
to a subgrantee shall:
(1) Determine whether State or local subgrantees have met the audit
requirements of the Act and whether subgrantees covered by OMB Circular
A-110, ''Uniform Requirements for Grants and Other Agreements with
Institutions of Higher Education, Hospitals and Other Nonprofit
Organizations'' have met the audit requirement. Commercial contractors
(private forprofit and private and governmental organizations) providing
goods and services to State and local governments are not required to
have a single audit performed. State and local govenments should use
their own procedures to ensure that the contractor has complied with
laws and regulations affecting the expenditure of Federal funds;
(2) Determine whether the subgrantee spent Federal assistance funds
provided in accordance with applicable laws and regulations. This may
be accomplished by reviewing an audit of the subgrantee made in
accordance with the Act, Circular A-110, or through other means (e.g.,
program reviews) if the subgrantee has not had such an audit;
(3) Ensure that appropriate corrective action is taken within six
months after receipt of the audit report in instance of noncompliance
with Federal laws and regulations;
(4) Consider whether subgrantee audits necessitate adjustment of the
grantee's own records; and
(5) Require each subgrantee to permit independent auditors to have
access to the records and financial statements.
(c) Auditor selection. In arranging for audit services, 600.436
shall be followed.
10 CFR 600.426 Changes, Property, and Subawards
10 CFR 600.430 Changes.
(a) General. Grantees and subgrantees are permitted to rebudget
within the approved direct cost budget to meet unanticipated
requirements and may make limited program changes to the approved
project. However, unless waived by the awarding agency, certain types
of post-award changes in budgets and projects shall require the prior
written approval of the awarding agency.
(b) Relation to cost principles. The applicable cost principles (see
600.422) contain requirements for prior approval of certain types of
costs. Except where waived, those requirements apply to all grants and
subgrants even if paragraphs (c) through (f) of this section do not.
(c) Budget changes -- (1) Nonconstruction projects. Except as stated
in other regulations or an award document, grantees or subgrantees shall
obtain the prior approval of the awarding agency whenever any of the
following changes is anticipated under a nonconstruction award:
(i) Any revision which would result in the need for additional
funding.
(ii) Unless waived by the awarding agency, cumulative transfers among
direct cost categories, or, if applicable, among separately budgeted
programs, projects, functions, or activities which exceed or are
expected to exceed ten percent of the current total approved budget,
whenever the awarding agency's share exceeds $100,000.
(iii) Transfer of funds allotted for training allowances (i.e., from
direct payments to trainees to other expense categories).
(2) Construction projects. Grantees and subgrantees shall obtain
prior written approval for any budget revision which would result in the
need for additional funds.
(3) Combined construction and nonconstruction projects. When a grant
or subgrant provides funding for both construction and nonconstruction
activities, the grantee or subgrantee must obtain prior written approval
from the awarding agency before making any fund or budget transfer from
nonconstruction to construction or vice versa.
(d) Programmatic changes. Grantees or subgrantees must obtain the
prior approval of the awarding agency whenever any of the following
actions is anticipated:
(1) Any revision of the scope or objectives of the project
(regardless of whether there is an associated budget revision requiring
prior approval).
(2) Need to extend the period of availability of funds.
(3) Changes in key persons in cases where specified in an application
or a grant award. In research projects, a change in the project
director or principal investigator shall always require approval unless
waived by the awarding agency.
(4) Under nonconstruction projects, contracting out, subgranting (if
authorized by law) or otherwise obtaining the services of a third party
to perform activities which are central to the purposes of the award.
This approval requirement is in addition to the approval requirements of
600.436 but does not apply to the procurement of equipment, supplies,
and general support services.
(e) Additional prior approval requirements. The awarding agency may
not require prior approval for any budget revision which is not
described in paragraph (c) of this section.
(f) Requesting prior approval. (1) A request for prior approval of
any budget revision will be in the same budget formal the grantee used
in its application and shall be accompanied by a narrative justification
for the proposed revision.
(2) A request for a prior approval under the applicable Federal cost
principles (see 600.422) may be made by letter.
(3) A request by a subgrantee for prior approval will be addressed in
writing to the grantee. The grantee will promptly review such request
and shall approve or disapprove the request in writing. A grantee will
not approve any budget or project revision which is inconsistent with
the purpose or terms and conditions of the Federal grant to the grantee.
If the revision, requested by the subgrantee would result in a change
to the grantee's approved project which requires Federal prior approval,
the grantee will obtain the Federal agency's approval before approving
the subgrantee's request.
10 CFR 600.431 Real property.
(a) Title. Subject to the obligations and conditions set forth in
this section, title to real property acquired under a grant or subgrant
will vest upon acquisition in the grantee or subgrantee respectively.
(b) Use. Except as otherwise provided by Federal statutes, real
property will be used for the originally authorized purposes as long as
needed for that purposes, and the grantee or subgrantee shall not
dispose of or encumber its title or other interests.
(c) Disposition. When real property is no longer needed for the
originally authorized purpose, the grantee or subgrantee will request
disposition instructions from the awarding agency. The instructions
will provide for one of the following alternatives:
(1) Retention of title. Retain title after compensating the awarding
agency. The amount paid to the awarding agency will be computed by
applying the awarding agency's percentage of participation in the cost
of the original purchase to the fair market value of the property.
However, in those situations where a grantee or subgrantee is disposing
of real property acquired with grant funds and acquiring replacement
real property under the same program, the net proceeds from the
disposition may be used as an offset to the cost of the replacement
property.
(2) Sale of property. Sell the property and compensate the awarding
agency. The amount due to the awarding agency will be calculated by
applying the awarding agency's percentage of participation in the cost
of the original purchase to the proceeds of the sale after deduction of
any actual and reasonable selling and fixing-up expenses. If the grant
is still active, the net proceeds from sale may be offset against the
original cost of the property. When a grantee or subgrantee is directed
to sell property, sales procedures shall be followed that provide for
competition to the extent practicable and result in the highest possible
return.
(3) Transfer of title. Transfer title to the awarding agency or to a
third-party designated/approved by the awarding agency. The grantee or
subgrantee shall be paid an amount calculated by applying the grantee or
subgrantee's percentage of participation in the purchase of the real
property to the current fair market value of the property.
10 CFR 600.432 Equipment.
(a) Title. Subject to the obligations and conditions set forth in
this section, title to equipment acquired under a grant or subgrant will
vest upon acquisition in the grantee or subgrantee respectively.
(b) States. A State will use, manage, and dispose of equipment
acquired under a grant by the State in accordance with State laws and
procedures. Other grantees and subgrantees will follow paragraphs (c)
through (e) of this section.
(c) Use. (1) Equipment shall be used by the grantee or subgrantee in
the program or project for which it was acquired as long as needed,
whether or not the project or program continues to be supported by
Federal funds. When no longer needed for the original program or
project, the equipment may be used in other activities currently or
previously supported by a Federal agency.
(2) The grantee or subgrantee shall also make equipment available for
use on other projects or programs currently or previously supported by
the Federal Government, providing such use will not interfere with the
work on the projects or program for which it was originally acquired.
First preference for other use shall be given to other programs or
projects supported by the awarding agency. User fees should be
considered if appropriate.
(3) Notwithstanding the encouragement in 600.425(a) to earn program
income, the grantee or subgrantee must not use equipment acquired with
grant funds to provide services for a fee to compete unfairly with
private companies that provide equivalent services, unless specifically
permitted or contemplated by Federal statute.
(4) When acquiring replacement equipment, the grantee or subgrantee
may use the equipment to be replaced as a trade-in or sell the property
and use the proceeds to offset the cost of the replacement property,
subject to the approval of the awarding agency.
(d) Management requirements. Procedures for managing equipment
(including replacement equipment), whether acquired in whole or in part
with grant funds, until disposition takes place will, as a minimum, meet
the following requirements:
(1) Property records must be maintained that include a description of
the property, a serial number or other identification number, the source
of property, who holds title, the acquisition date, and cost of the
property, percentage of Federal participation in the cost of the
property, the location, use and condition of the property, and any
ultimate disposition data including the date of disposal and sale price
of the property.
(2) A physical inventory of the property must be taken and the
results reconciled with the property records at least once every two
years.
(3) A control system must be developed to ensure adequate safeguards
to prevent loss, damage, or theft of the property. Any loss, damage, or
theft shall be investigated.
(4) Adequate maintenance procedures must be developed to keep the
property in good condition.
(5) If the grantee or subgrantee is authorized or required to sell
the property, proper sales procedures must be established to ensure the
highest possible return.
(e) Disposition. When original or replacement equipment acquired
under a grant or subgrant is no longer needed for the original project
or program or for other activities currently or previously supported by
a Federal agency, disposition of the equipment will be made as follows:
(1) Items of equipment with a current per-unit fair market value of
less than $5,000 may be retained, sold or otherwise disposed of with no
further obligation to the awarding agency.
(2) Items of equipment with a current per unit fair market value in
excess of $5,000 may be retained or sold and the awarding agency shall
have a right to an amount calculated by multiplying the current market
value or proceeds from sale by the awarding agency's share of the
equipment.
(3) In cases where a grantee or subgrantee fails to take appropriate
disposition actions, the awarding agency may direct the grantee or
subgrantee to take excess and disposition actions.
(f) Federal equipment. In the event a grantee or subgrantee is
provided federally-owned equipment:
(1) Title will remain vested in the Federal Government.
(2) Grantees or subgrantees will manage the equipment in accordance
with Federal agency rules and procedures, and submit an annual inventory
listing.
(3) When the equipment is no longer needed, the grantee or subgrantee
will request disposition instructions from the Federal agency.
(g) Right to transfer title. The Federal awarding agency may reserve
the right to transfer title to the Federal Government or a third part
named by the awarding agency when such a third party is otherwise
eligible under existing statutes. Such transfers shall be subject to
the following standards:
(1) The property shall be identified in the grant or otherwise made
known to the grantee in writing.
(2) The Federal awarding agency shall issue disposition instruction
within 120 calendar days after the end of the Federal support of the
project for which it was acquired. If the Federal awarding agency fails
to issue disposition instructions within the 120 calendar-day period the
grantee shall follow 600.432(e).
(3) When title to equipment is transferred, the grantee shall be paid
an amount calculated by applying the percentage of participation in the
purchase to the current fair market value of the property.
10 CFR 600.433 Supplies.
(a) Title. Title to supplies acquired under a grant or subgrant will
vest, upon acquisition, in the grantee or subgrantee respectively.
(b) Disposition. If there is a residual inventory of unused supplies
exceeding $5,000 in total aggregate fair market value upon termination
or completion of the award, and if the supplies are not needed for any
other federally sponsored programs or projects, the grantee or
subgrantee shall compensate the awarding agency for its share.
10 CFR 600.434 Copyrights.
The Federal awarding agency reserves a royalty-free, nonexclusive,
and irrevocable license to reproduce, publish or otherwise use, and to
authorize others to use, for Federal Government purposes:
(a) The copyright in any work developed under a grant, subgrant, or
contract under a grant or subgrant; and
(b) Any rights of copyright to which a grantee, subgrantee or a
contractor purchases ownership with grant support.
10 CFR 600.435 Subawards to debarred and suspended parties.
Grantees and subgrantees must not make any award or permit any award
(subgrant or contract) at any tier to any party which is debarred or
suspended or is otherwise excluded from or ineligible for participation
in Federal assistance programs under Executive Order 12549, ''Debarment
and Suspension.''
10 CFR 600.436 Procurement.
(a) States. When procuring property and services under a grant, a
State will follow the same policies and procedures it uses for
procurements from its non-Federal funds. The State will ensure that
every purchase order or other contract includes any clauses required by
Federal statutes and executive orders and their implementing
regulations. Other grantees and subgrantees will follow paragraphs (b)
through (i) in this section.
(b) Procurement standards. (1) Grantees and subgrantees will use
their own procurement procedures which reflect applicable State and
local laws and regulations, provided that the procurements conform to
applicable Federal law and the standards identified in this section.
(2) Grantees and subgrantees will maintain a contract administration
system which ensures that contractors perform in accordance with the
terms, conditions, and specifications of their contracts or purchase
orders.
(3) Grantees and subgrantees will maintain a written code of
standards of conduct governing the performance of their employees
engaged in the award and administration of contracts. No employee,
officer or agent of the grantee or subgrantee shall participate in
selection, or in the award or administration of a contract supported by
Federal funds if a conflict of interest, real or apparent, would be
involved. Such a conflict would arise when:
(i) The employee, officer or agent,
(ii) Any member of his immediate family,
(iii) His or her partner, or
(iv) An organization which employs, or is about to employ, any of the
above, has a financial or other interest in the firm selected for award.
The grantee's or subgrantee's officers, employees or agents will
neither solicit nor accept gratuities, favors or anything of monetary
value from contractors, potential contractors, or parties to
subagreements. Grantee and subgrantees may set minimum rules where the
financial interest is not substantial or the gift is an unsolicited item
of nominal intrinsic value. To the extent permitted by State or local
law or regulations, such standards or conduct will provide for
penalties, sanctions, or other disciplinary actions for violations of
such standards by the grantee's and subgrantee's officers, employees, or
agents, or by contractors or their agents. The awarding agency may in
regulation provide additional prohibitions relative to real, apparent,
or potential conflicts of interest.
(4) Grantee and subgrantee procedures will provide for a review of
proposed procurements to avoid purchase of unnecessary or duplicative
items. Consideration should be given to consolidating or breaking out
procurements to obtain a more economical purchase. Where appropriate,
an analysis will be made of lease versus purchase alternatives, and any
other appropriate analysis to determine the most economical approach.
(5) To foster greater economy and efficiency, grantees and
subgrantees are encouraged to enter into State and local
intergovernmental agreements for procurement or use of common goods and
services.
(6) Grantees and subgrantees are encouraged to use Federal excess and
surplus property in lieu of purchasing new equipment and property
whenever such use is feasible and reduces project costs.
(7) Grantees and subgrantees are encouraged to use value engineering
clauses in contracts for construction projects of sufficient size to
offer reasonable opportunities for cost reductions. Value engineering
is a systematic and creative anaylsis of each contract item or task to
ensure that its essential function is provided at the overall lower
cost.
(8) Grantees and subgrantees will make awards only to responsible
contractors possessing the ability to perform successfully under the
terms and conditions of a proposed procurement. Consideration will be
given to such matters as contractor integrity, compliance with public
policy, record of past performance, and financial and technical
resources.
(9) Grantees and subgrantees will maintain records sufficient to
detail the significant history of a procurement. These records will
include, but are not necessarily limited to the following: rationale
for the method of procurement, selection of contract type, contractor
selection or rejection, and the basis for the contract price.
(10) Grantees and subgrantees will use time and material type
contracts only --
(i) After a determination that no other contract is suitable, and
(ii) If the contract includes a ceiling price that the contractor
exceeds at its own risk.
(11) Grantees and subgrantees alone will be responsible, in
accordance with good administrative practice and sound business
judgment, for the settlement of all contractual and administrative
issues arising out of procurements. These issues include, but are not
limited to source evaluation, protests, disputes, and claims. These
standards do not relieve the grantee or subgrantee of any contractual
responsibilities under its contracts. Federal agencies will not
substitute their judgment for that of the grantee or subgrantee unless
the matter is primarily a Federal concern. Violations of law will be
referred to the local, State, or Federal authority having proper
jurisdiction.
(12) Grantees and subgrantees will have protest procedures to handle
and resolve disputes relating to their procurements and shall in all
instances disclose information regarding the protest to the awarding
agency. A protestor must exhaust all administrative remedies with the
grantee and subgrantee before pursuing a protest with the Federal
agency. Reviews of protests by the Federal agency will be limited to:
(i) Violations of Federal law or regulations and the standards of
this section (violations of State or local law will be under the
jurisdiction of State or local authorities) and
(ii) Violations of the grantee's or subgrantee's protest procedures
for failure to review a complaint or protest. Protests received by the
Federal agency other than those specified above will be referred to the
grantee or subgrantee.
(c) Competition. (1) All procurement transactions will be conducted
in a manner providing full and open competition consistent with the
standards of 600.436. Some of the situations considered to be
restrictive of competition include but are not limited to:
(i) Placing unreasonable requirements on firms in order for them to
qualify to do business,
(ii) Requiring unnecessary experience and excessive bonding,
(iii) Noncompetitive pricing practices between firms or between
affiliated companies,
(iv) Noncompetitive awards to consultants that are on retainer
contracts,
(v) Organizational conflicts of interest,
(vi) Specifying only a ''brand name'' product instead of allowing
''an equal'' product to be offered and describing the performance of
other relevant requirements of the procurement, and
(vii) Any arbitrary action in the procurement process.
(2) Grantees and subgrantees will conduct procurements in a manner
that prohibits the use of statutorily or administratively imposed
in-State or local geographical preferences in the evaluation of bids or
proposals, except in those cases where applicable Federal statutes
expressly mandate or encourage geographic preference. Nothing in this
section preempts State licensing laws. When contracting for
architectural and engineering (A/E) services, geographic location may be
a selection criteria provided its application leaves an appropriate
number of qualified firms, given the nature and size of the project, to
compete for the contract.
(3) Grantees will have written selection procedures for procurement
transactions. These procedures will ensure that all solicitations:
(i) Incorporate a clear and accurate description of the technical
requirements for the material, product, or service to be procured. Such
description shall not, in competitive procurements, contain features
which unduly restrict competition. The description may include a
statement of the qualitative nature of the material, product or service
to be procured, and when necessary, shall set forth those minimum
essential characteristics and standards to which it must conform if it
is to satisfy its intended use. Detailed product specifications should
be avoided if at all possible. When it is impractical or uneconomical
to make a clear and accurate description of the technical requirements,
a ''brand name or equal'' description may be used as a means to define
the performance or other salient requirements of a procurement. The
specific features of the named brand which must be met by offerors shall
be clearly stated; and
(ii) Identify all requirements which the offerors must fulfill and
all other factors to be used in evaluating bids or proposals.
(4) Grantees and subgrantees will ensure that all prequalified lists
of persons, firms, or products which are used in acquiring goods and
services are current and include enough qualified sources to ensure
maximum open and free competition. Also, grantees and subgrantees will
not preclude potential bidders from qualifying during the solicitation
period.
(d) Methods of procurement to be followed -- (1) Procurement by small
purchase procedures. Small purchase procedures are those relatively
simple and informal procurement methods for securing services, supplies,
or other property that do not cost more than $25,000 in the aggregate.
If small purchase procurements are used, price or rate quotations will
be obtained from an adequate number of qualified sources.
(2) Procurement by sealed bids (formal advertising). Bids are
publicly solicited and a firm-fixed-price contract (lump sum or unit
price) is awarded to the responsible bidder whose bid, conforming with
all the material terms and conditions of the invitation for bids, is the
lowest in price. The sealed bid method is the preferred method for
procuring construction, if the conditions in 600.436(d)(2)(i) apply.
(i) In order for sealed bidding to be feasible, the following
conditions should be present:
(A) A complete, adequate, and realistic specification or purchase
description is available;
(B) Two or more responsible bidders are willing and able to compete
effectively for the business; and
(C) The procurement lends itself to a firm fixed price contract and
the selection of the successful bidder can be made principally on the
basis of price.
(ii) If sealed bids are used, the following requirements apply:
(A) The invitation for bids will be publicly advertised and bids
shall be solicited from an adequate number of known suppliers, providing
them sufficient time prior to the date set for opening the bids;
(B) The invitation for bids, which will include any specifications
and pertinent attachments, shall define the items or services in order
for the bidder to properly respond;
(C) All bids will be publicly opened at the time and place prescribed
in the invitation for bids;
(D) A firm fixed-price contract award will be made in writing to the
lowest responsive and responsible bidder. Where specified in bidding
documents, factors such as discounts, transportation cost, and life
cycle costs shall be considered in determining which bid is lowest.
Payment discounts will only be used to determine the low bid when prior
experience indicates that such discounts are usually taken advantage of;
and
(E) Any or all bids may be rejected if there is a sound documented
reason.
(3) Procurement by competitive proposals. The technique of
competitive proposals is normally conducted with more than one source
submitting an offer, and either a fixed-price or cost-reimbursement type
contract is awarded. It is generally used when conditions are not
appropriate for the use of sealed bids. If this method is used, the
following requirements apply:
(i) Requests for proposals will be publicized and identify all
evaluation factors and their relative importance. Any response to
publicized requests for proposals shall be honored to the maximum extent
practical;
(ii) Proposals will be solicited from an adequate number of qualified
sources;
(iii) Grantees and subgrantees will have a method for conducting
technical evaluations of the proposals received and for selecting
awardees;
(iv) Awards will be made to the responsible firm whose proposal is
most advantageous to the program, with price and other factors
considered; and
(v) Grantees and subgrantees may use competitive proposal procedures
for qualifications-based procurement of architectural/engineering (A/E)
professional services whereby competitors' qualifications are evaluated
and the most qualified competitor is selected, subject to negotiation of
fair and reasonable compensation. The method, where price is not used
as a selection factor, can only be used in procurement of A/E
professional services. It cannot be used to purchase other types of
services though A/E firms are a potential source to perform the proposed
effort.
(4) Procurement by noncompetitive proposals is procurement through
solicitation of a proposal from only one source, or after solicitation
of a number of sources, competition is determined inadequate.
(i) Procurement by noncompetitive proposals may be used only when the
award of a contract is infeasible under small purchase procedures,
sealed bids or competitive proposals and one of the following
circumstances applies:
(A) The item is available only from a single source;
(B) The public exigency or emergency for the requirement will not
permit a delay resulting from competitive solicitation.
(C) The awarding agency authorizes noncompetitive proposals; or
(D) After solicitation of a number of sources, competition is
determined inadequate.
(ii) Cost analysis, i.e., verifying the proposed cost data, the
projections of the data, and the evaluation of the specific elements of
costs and profit, is required.
(iii) Grantees and subgrantees may be required to submit the proposed
procurement to the awarding agency for pre-award review in accordance
with paragraph (g) of this section.
(e) Contracting with small and minority firms, women's business
enterprise and labor surplus area firms. (1) The grantee and subgrantee
will take all necessary affirmative steps to assure that minority firms,
women's business enterprises, and labor surplus area firms are used when
possible.
(2) Affirmative steps shall include:
(i) Placing qualified small and minority businesses and women's
business enterprises on solicitation lists;
(ii) Assuring that small and minority businesses, and women's
business enterprises are solicited whenever they are potential sources;
(iii) Dividing total requirements, when economically feasible, into
smaller tasks or quantities to permit maximum participation by small and
minority business, and women's business enterprises;
(iv) Establishing delivery schedules, where the requirement permits,
which encourage participation by small and minority business, and
women's business enterprises;
(v) Using the services and assistance of the Small Business
Administration, and the Minority Business Development Agency of the
Department of Commerce; and
(vi) Requiring the prime contractor, if subcontracts are to be let,
to take the affirmative steps listed in paragraphs (e)(2) (i) through
(v) of this section.
(f) Contract cost and price. (1) Grantees and subgrantees must
perform a cost or price analysis in connection with every procurement
action including contract modifications. The method and degree of
analysis is dependent on the facts surrounding the particular
procurement situation, but as a starting point, grantees must make
independent estimates before receiving bids or proposals. A cost
analysis must be performed when the offeror is required to submit the
elements of his estimated cost, e.g., under professional, consulting,
and architectural engineering services contracts. A cost analysis will
be necessary when adequate price competition is lacking, and for sole
source procurements, including contract modifications or change orders,
unless price resonableness can be established on the basis of a catalog
or market price of a commercial product sold in substantial quantities
to the general public or based on prices set by law or regulation. A
price analysis will be used in all other instances to determine the
reasonableness of the proposed contract price.
(2) Grantees and subgrantees will negotiate profit as a separate
element of the price for each contract in which there is no price
competition and in all cases where cost analysis is performed. To
establish a fair and reasonable profit, consideration will be given to
the complexity of the work to be performed, the risk borne by the
contractor, the contractor's investment, the amount of subcontracting,
the quality of its record of past performance, and industry profit rates
in the surrounding geographical area for similar work.
(3) Costs or prices based on estimated costs for contracts under
grants will be allowable only to the extent that costs incurred or cost
estimates included in negotiated prices are consistent with Federal cost
principles (see 600.422). Grantees may reference their own cost
principles that comply with the applicable Federal cost principles.
(4) The cost plus a percentage of cost and percentage of construction
cost methods of contracting shall not be used.
(g) Awarding agency review. (1) Grantees and subgrantees must make
available, upon request of the awarding agency, technical specifications
on proposed procurements where the awarding agency believes such review
is needed to ensure that the item and/or service specified is the one
being proposed for purchase. This review generally will take place
prior to the time the specification is incorporated into a solicitation
document. However, if the grantee or subgrantee desires to have the
review accomplished after a solication has been developed, the awarding
agency may still review the specifications, with such review usually
limited to the technical aspects of the proposed purchase.
(2) Grantees and subgrantees must on request make available for
awarding agency pre-award review procurement documents, such as requests
for proposals or invitations for bids, independent cost estimates, etc.,
when:
(i) A grantee's or subgrantee's procurement procedures or operation
fails to comply with the procurement standards in this section; or
(ii) The procurement is expected to exceed $25,000 and is to be
awarded without competition or only one bid or offer is received in
response to a solicitation; or
(iii) The procurement, which is expected to exceed $25,000, specifies
a ''brand name'' product; or
(iv) The proposed award over $25,000 is to be awarded to other than
the apparent low bidder under a sealed bid procurement; or
(v) A proposed contract modification changes the scope of a contract
or increases the contract amount by more than $25,000.
(3) A grantee or subgrantee will be exempt from the pre-award review
in paragraph (g)(2) of this section if the awarding agency determines
that its procurement systems comply with the standards of this section.
(i) A grantee or subgrantee may request that its procurement system
be reviewed by the awarding agency to determine whether its system meets
these standards in order for its system to be certified. Generally,
these reviews shall occur where there is a continuous high-dollar
funding, and third-party contracts are awarded on a regular basis;
(ii) A grantee or subgrantee may self-certify its procurement system.
Such self-certification shall not limit the awarding agency's right to
survey the system. Under a self-certification procedure, awarding
agencies may wish to rely on written assurances from the grantee or
subgrantee that it is complying with these standards. A grantee or
subgrantee will cite specific procedures, regulations, standards, etc.,
as being in compliance with these requirements and have its system
available for review.
(h) Bonding requirements. For construction or facility improvement
contracts or subconstracts exceeding $100,000, the awarding agency may
accept the bonding policy and requirements of the grantee or subgrantee
provided the awarding agency has made a determination that the awarding
agency's interest is adequately protected. If such a determination has
not been made, the minimum requirements shall be as follows:
(1) A bid guarantee from each bidder equivalent to five percent of
the bid price. The ''bid guarantee'' shall consist of a firm commitment
such as a bid bond, certified check, or other negotiable instrument
accompanying a bid as assurance that the bidder will, upon acceptance of
his bid, execute such contractual documents as may be required within
the time specified.
(2) A performance bond on the part of the contractor for 100 percent
of the contract price. A ''performance bond'' is one executed in
connection with a contract to secure fulfillment of all the contractor's
obligations under such contract.
(3) A payment bond on the part of the contractor for 100 percent of
the contract price. A ''payment bond'' is one executed in connection
with a contract to assure payment as required by law of all persons
supplying labor and material in the execution of the work provided for
in the contract.
(i) Contract provisions. A grantee's and subgrantee's contracts must
contain provisions in paragraph (i) of this section. Federal agencies
are permitted to require changes, remedies, changed conditions, access
and records retention, suspension of work, and other clauses approved by
the Office of Procurement Policy.
(1) Administrative, contractual, or legal remedies in instances where
contractors violate or breach contract terms, and provide for such
sanctions and penalties as may be appropriate (Contracts other than
small purchases).
(2) Termination for cause and for convenience by the grantee or
subgrantee including the manner by which it will be effected and the
basis for settlement (All contracts in excess of $10,000).
(3) Compliance with Executive Order 11246 of September 24, 1965
entitled ''Equal Employment Opportunity,'' as amended by Executive Order
11375 of October 13, 1967 and as supplemented in Department of Labor
regulations (41 CFR Chapter 60) (All construction contracts awarded in
excess of $10,000 by grantees and their contractors or subgrantees).
(4) Compliance with the Copeland ''Anti-Kickback'' Act (18 U.S.C.
874) as supplemented in Department of Labor regulations (29 CFR part 3)
(All contracts and subgrants for construction or repair).
(5) Compliance with the Davis-Bacon Act (40 U.S.C. 276a to a-7) as
supplemented by Department of Labor regulations (29 CFR part 5)
(Construction contracts in excess of $2,000 awarded by grantees and
subgrantees when required by Federal grant program legislation).
(6) Compliance with sections 103 and 107 of the Contract Work Hours
and Safety Standards Act (40 U.S.C. 327-330) as supplemented by
Department of Labor regulations (29 CFR part 5). (Construction
contracts awarded by grantees and subgrantees in excess of $2,000, and
in excess of $2,500 for other contracts which involve the employment of
mechanics or laborers)
(7) Notice of awarding agency requirements and regulations pertaining
to reporting.
(8) Notice of awarding agency requirements and regulations pertaining
to patent rights with respect to any discovery or invention which arises
or is developed in the course of or under such contract.
(9) Awarding agency requirements and regulations pertaining to
copyrights and rights in data.
(10) Access by the grantee, the subgrantee, the Federal grantor
agency, the Comptroller General of the United States, or any of their
duly authorized representatives to any books, documents, papers, and
records of the contractor which are directly pertinent to that specific
contract for the purpose of making audit, examination, excerpts, and
transcriptions.
(11) Retention of all required records for three years after grantees
or subgrantees make final payments and all other pending matters are
closed.
(12) Compliance with all applicable standards, orders, or
requirements issued under section 306 of the Clear Air Act (42 U.S.C.
1857(h)), section 508 of the Clean Water Act (33 U.S.C. 1368), Executive
Order 11738, and Environmental Protection Agency regulations (40 CFR
part 15) (Contracts, subcontracts, and subgrants of amounts in excess of
$100,000).
(13) Mandatory standards and policies relating to energy efficiency
which are contained in the state energy conservation plan issued in
compliance with the Energy Policy and Conservation Act (Pub. L.
94-163).
(53 FR 8045 and 8087, Mar. 11, 1988, as amended at 57 FR 5, Jan. 2,
1992
Effective Date Note: At 57 FR 5, Jan. 2, 1992, 600.436 was amended
in paragraph (g)(2)(i) by correcting ''seciton'' to read ''section''.
10 CFR 600.437 Subgrants.
(a) States. States shall follow state law and procedures when
awarding and administering subgrants (whether on a cost reimbursement or
fixed amount basis) of financial assistance to local and Indian tribal
governments. States shall:
(1) Ensure that every subgrant includes any clauses required by
Federal statute and executive orders and their implementing regulations;
(2) Ensure that subgrantees are aware of requirements imposed upon
them by Federal statute and regulation;
(3) Ensure that a provision for compliance with 600.442 is placed in
every cost reimbursement subgrant; and
(4) Conform any advances of grant funds to subgrantees substantially
to the same standards of timing and amount that apply to cash advances
by Federal agencies.
(b) All other grantees. All other grantees shall follow the
provisions of this subpart which are applicable to awarding agencies
when awarding and administering subgrants (whether on a cost
reimbursement or fixed amount basis) of financial assistance to local
and Indian tribal governments. Grantees shall:
(1) Ensure that every subgrant includes a provision for compliance
with this subpart;
(2) Ensure that every subgrant includes any clauses required by
Federal statute and executive orders and their implementing regulations;
and
(3) Ensure that subgrantees are aware of requirements imposed upon
them by Federal statutes and regulations.
(c) Exceptions. By their own terms, certain provisions of this
subpart do not apply to the award and administration of subgrants:
(1) Section 600.410;
(2) Section 600.411;
(3) The letter-of-credit procedures specified in Treasury Regulations
at 31 CFR part 205, cited in 600.421; and
(4) Section 600.450.
10 CFR 600.437 Reports, Records, Retention, and Enforcement
10 CFR 600.440 Monitoring and reporting program performance.
(a) Monitoring by grantees. Grantees are responsible for managing
the day-to-day operations of grant and subgrant supported activities.
Grantees must monitor grant and subgrant supported activities to assure
compliance with applicable Federal requirements and that performance
goals are being achieved. Grantee monitoring must cover each program,
function or activity.
(b) Nonconstruction performance reports. The Federal agency may, if
it decides that performance information available from subsequent
applications contains sufficient information to meet its programmatic
needs, require the grantee to submit a performance report only upon
expiration or termination of grant support. Unless waived by the
Federal agency this report will be due on the same date as the final
Financial Status Report.
(1) Grantees shall submit annual performance reports unless the
awarding agency requires quarterly or semi-annual reports. However,
performance reports will not be required more frequently than quarterly.
Annual reports shall be due 90 days after the grant year, quarterly or
semi-annual reports shall be due 30 days after the reporting period.
The final performance report will be due 90 days after the expiration or
termination of grant support. If a justified request is submitted by a
grantee, the Federal agency may extend the due date for any performance
report. Additionally, requirements for unnecessary performance reports
may be waived by the Federal agency.
(2) Performance reports will contain, for each grant, brief
information on the following:
(i) A comparison of actual accomplishments to the objectives
established for the period. Where the output of the project can be
quantified, a computation of the cost per unit of output may be required
if that information will be useful.
(ii) The reasons for slippage if established objectives were not met.
(iii) Additional pertinent information including, when appropriate,
analysis and explanation of cost overruns or high unit costs.
(3) Grantees will not be required to submit more than the original
and two copies of performance reports.
(4) Grantees will adhere to the standards in this section in
prescribing performance reporting requirements for subgrantees.
(c) Construction performance reports. For the most part, on-site
technical inspections and certified percentage-of-completion data are
relied on heavily by Federal agencies to monitor progress under
construction grants and subgrants. The Federal agency will require
additional formal performance reports only when considered necessary,
and never more frequently than quarterly.
(d) Significant developments. Events may occur between the scheduled
performance reporting dates which have significant impact upon the grant
or subgrant supported activity. In such cases, the grantee must inform
the Federal agency as soon as the following types of conditions become
known:
(1) Problems, delays, or adverse conditions which will materially
impair the ability to meet the objective of the award. This disclosure
must include a statement of the action taken, or contemplated, and any
assistance needed to resolve the situation.
(2) Favorable developments which enable meeting time schedules and
objectives sooner or at less cost than anticipated or producing more
beneficial results than originally planned.
(e) Federal agencies may make site visits as warranted by program
needs.
(f) Waivers, extensions. (1) Federal agencies may waive any
performance report required by this part if not needed.
(2) The grantee may waive any performance report from a subgrantee
when not needed. The grantee may extend the due date for any
performance report from a subgrantee if the grantee will still be able
to meet its performance reporting obligations to the Federal agency.
10 CFR 600.441 Financial reporting.
(a) General. (1) Except as provided in paragraphs (a) (2) and (5) of
this section, grantees will use only the forms specified in paragraphs
(a) through (e) of this section, and such supplementary or other forms
as may from time to time be authorized by OMB, for:
(i) Submitting financial reports to Federal agencies, or
(ii) Requesting advances or reimbursements when letters of credit are
not used.
(2) Grantees need not apply the forms prescribed in this section in
dealing with their subgrantees. However, grantees shall not impose more
burdensome requirements on subgrantees.
(3) Grantees shall follow all applicable standard and supplemental
Federal agency instructions approved by OMB to the extend required under
the Paperwork Reduction Act of 1980 for use in connection with forms
specified in paragraphs (b) through (e) of this section. Federal
agencies may issue substantive supplementary instructions only with the
approval of OMB. Federal agencies may shade out or instruct the grantee
to disregard any line item that the Federal agency finds unnecessary for
its decisionmaking purposes.
(4) Grantees will not be required to submit more than the original
and two copies of forms required under this subpart.
(5) Federal agencies may provide computer outputs to grantees to
expedite or contribute to the accuracy of reporting. Federal agencies
may accept the required information from grantees in machine usable
format or computer printouts instead of prescribed forms.
(6) Federal agencies may waive any report required by this section if
not needed.
(7) Federal agencies may extend the due date of any financial report
upon receiving a justified request from a grantee.
(b) Financial Status Report -- (1) Form. Grantees will use Standard
Form 269 or 269A, Financial Status Report, to report the status of funds
for all nonconstruction grants and for construction grants when required
in accordance with 600.441(e)(2)(iii).
(2) Accounting basis. Each grantee will report program outlays and
program income on a cash or accrual basis as prescribed by the awarding
agency. If the Federal agency requires accrual information and the
grantee's accounting records are not normally kept on the accural basis,
the grantee shall not be required to convert its accounting system but
shall develop such accrual information through and analysis of the
documentation on hand.
(3) Frequency. The Federal agency may prescribe the frequency of the
report for each project or program. However, the report will not be
required more frequently than quarterly. If the Federal agency does not
specify the frequency of the report, it will be submitted annually. A
final report will be required upon expiration or termination of grant
support.
(4) Due date. When reports are required on a quarterly or semiannual
basis, they will be due 30 days after the reporting period. When
required on an annual basis, they will be due 90 days after the grant
year. Final reports will be due 90 days after the expiration or
termination of grant support.
(c) Federal Cash Transactions Report -- (1) Form. (i) For grants
paid by letter or credit, Treasury check advances or electronic transfer
of funds, the grantee will submit the Standard Form 272, Federal Cash
Transactions Report, and when necessary, its continuation sheet,
Standard Form 272a, unless the terms of the award exempt the grantee
from this requirement.
(ii) These reports will be used by the Federal agency to monitor cash
advanced to grantees and to obtain disbursement or outlay information
for each grant from grantees. The format of the report may be adapted
as appropriate when reporting is to be accomplished with the assistance
of automatic data processing equipment provided that the information to
be submitted is not changed in substance.
(2) Forecasts of Federal cash requirements. Forecasts of Federal
cash requirements may be required in the ''Remarks'' section of the
report.
(3) Cash in hands of subgrantees. When considered necessary and
feasible by the Federal agency, grantees may be required to report the
amount of cash advances in excess of three days' needs in the hands of
their subgrantees or contractors and to provide short narrative
explanations of actions taken by the grantee to reduce the excess
balances.
(4) Frequency and due date. Grantees must submit the report no later
than 15 working days following the end of each quarter. However, where
an advance either by letter of credit or electronic transfer of funds is
authorized at an annualized rate of one million dollars or more, the
Federal agency may require the report to be submitted within 15 working
days following the end of each month.
(d) Request for advance or reimbursement -- (1) Advance payments.
Requests for Treasury check advance payments will be submitted on
Standard Form 270, Request for Advance or Reimbursement. (This form
will not be used for drawdowns under a letter of credit, electronic
funds transfer or when Treasury check advance payments are made to the
grantee automatically on a predetermined basis.)
(2) Reimbursements. Requests for reimbursement under nonconstruction
grants will also be submitted on Standard Form 270. (For reimbursement
requests under construction grants, see paragraph (e)(1) of this
section.)
(3) The frequency for submitting payment requests is treated in
600.441(b)(3).
(e) Outlay report and request for reimbursement for construction
programs. (1) Grants that support construction activities paid by
reimbursement method. (i) Requests for reimbursement under construction
grants will be submitted on Standard Form 271, Outlay Report and Request
for Reimbursement for Construction Programs. Federal agencies may,
however, prescribe the Request for Advance or Reimbursement form,
specified in 600.441(d), instead of this form.
(ii) The frequency for submitting reimbursement requests is treated
in 600.441(b)(3).
(2) Grants that support construction activities paid by letter of
credit, electronic funds transfer or Treasury check advance. (i) When a
construction grant is paid by letter of credit, electronic funds
transfer or Treasury check advances, the grantee will report its outlays
to the Federal agency using Standard Form 271, Outlay Report and Request
for Reimbursement for Construction Programs. The Federal agency will
provide any necessary special instruction. However, frequency and due
date shall be governed by 600.41(b) (3) and (4).
(ii) When a construction grant is paid by Treasury check advances
based on periodic requests from the grantee, the advances will be
requested on the form specified in 600.41(d).
(iii) The Federal agency may substitute the Financial Status Report
specified in 600.441(b) for the Outlay Report and Request for
Reimbursement for Construction Programs.
(3) Accounting basis. The accounting basis for the Outlay Report and
Request for Reimbursement for Construction Programs shall be governed by
600.441(b)(2).
10 CFR 600.442 Retention and access requirements for records.
(a) Applicability. (1) This section applies to all financial and
programmatic records, supporting documents, statistical records, and
other records of grantees or subgrantees which are:
(i) Required to be maintained by the terms of this subpart, program
regulations or the grant agreement, or
(ii) Otherwise reasonably considered as pertinent to program
regulations or the grant agreement.
(2) This section does not apply to records maintained by contractors
or subcontractors. For a requirement to place a provision concerning
records in certain kinds of contracts, see 600.436(i)(10).
(b) Length of retention period. (1) Except as otherwise provided,
records must be retained for three years from the starting date
specified in paragraph (c) of this section.
(2) If any litigation, claim, negotiation, audit or other action
involving the records has been started before the expiration of the
3-year period, the records must be retained until completion of the
action and resolution of all issues which arise from it, or until the
end of the regular 3-year period, whichever is later.
(3) To avoid duplicate recordkeeping, awarding agencies may make
special arrangements with grantees and subgrantees to retain any records
which are continuously needed for joint use. The awarding agency will
request transfer of records to its custody when it determines that the
records possess long-term retention value. When the records are
transferred to or maintained by the Federal agency, the 3-year retention
requirement is not applicable to the grantee or subgrantee.
(c) Starting date of retention period -- (1) General. When grant
support is continued or renewed at annual or other intervals, the
retention period for the records of each funding period starts on the
day the grantee or subgrantee submits to the awarding agency its single
or last expenditure report for that period. However, if grant support
is continued or renewed quarterly, the retention period for each year's
records starts on the day the grantee submits its expenditure report for
the last quarter of the Federal fiscal year. In all other cases, the
retention period starts on the day the grantee submits its final
expenditure report. If an expenditure report has been waived, the
retention period starts on the day the report would have been due.
(2) Real property and equipment records. The retention period for
real property and equipment records starts from the date of the
disposition or replacement or transfer at the direction of the awarding
agency.
(3) Records for income transactions after grant or subgrant support.
In some cases grantees must report income after the period of grant
support. Where there is such a requirement, the retention period for
the records pertaining to the earning of the income starts from the end
of the grantee's fiscal year in which the income is earned.
(4) Indirect cost rate proposals, cost allocations plans, etc. This
paragraph applies to the following types of documents, and their
supporting records: indirect cost rate computations or proposals, cost
allocation plans, and any similar accounting computations of the rate at
which a particular group of costs is chargeable (such as computer usage
chargeback rates or composite fringe benefit rates).
(i) If submitted for negotiation. If the proposal, plan, or other
computation is required to be submitted to the Federal Government (or to
the grantee) to form the basis for negotiation of the rate, then the
3-year retention period for its supporting records starts from the date
of such submission.
(ii) If not submitted for negotiation. If the proposal, plan, or
other computation is not required to be submitted to the Federal
Government (or to the grantee) for negotiation purposes, then the 3-year
retention period for the proposal plan, or computation and its
supporting records starts from end of the fiscal year (or other
accounting period) covered by the proposal, plan, or other computation.
(d) Substitution of microfilm. Copies made by microfilming,
photocopying, or similar methods may be substituted for the original
records.
(e) Access to records -- (1) Records of grantees and subgrantees.
The awarding agency and the Comptroller General of the United States, or
any of their authorized representatives, shall have the right of access
to any pertinent books, documents, papers, or other records of grantees
and subgrantees which are pertinent to the grant, in order to make
audits, examinations, excerpts, and transcripts.
(2) Expiration of right of access. The rights of access in this
section must not be limited to the required retention period but shall
last as long as the records are retained.
(f) Restrictions on public access. The Federal Freedom of
Information Act (5 U.S.C. 552) does not apply to records Unless required
by Federal, State, or local law, grantees and subgrantees are not
required to permit public access to their records.
10 CFR 600.443 Enforcement.
(a) Remedies for noncompliance. If a grantee or subgrantee
materially fails to comply with any term of an award, whether stated in
a Federal statute or regulation, an assurance, in a State plan or
application, a notice of award, or elsewhere, the awarding agency may
take one or more of the following actions, as appropriate in the
circumstances:
(1) Temporarily withhold cash payments pending correction of the
deficiency by the grantee or subgrantee or more severe enforcement
action by the awarding agency,
(2) Disallow (that is, deny both use of funds and matching credit
for) all or part of the cost of the activity or action not in
compliance,
(3) Wholly or partly suspend or terminate the current award for the
grantee's or subgrantee's program,
(4) Withhold further awards for the program, or
(5) Take other remedies that may be legally available.
(b) Hearings, appeals. In taking an enforcement action, the awarding
agency will provide the grantee or subgrantee an opportunity for such
hearing, appeal, or other administrative proceeding to which the grantee
or subgrantee is entitled under any statute or regulation applicable to
the action involved.
(c) Effects of suspension and termination. Costs of grantee or
subgrantee resulting from obligations incurred by the grantee or
subgrantee during a suspension or after termination of an award are not
allowable unless the awarding agency expressly authorizes them in the
notice of suspension or termination or subsequently. Other grantee or
subgrantee costs during suspension or after termination which are
necessary and not reasonably avoidable are allowable if:
(1) The costs result from obligations which were properly incurred by
the grantee or subgrantee before the effective date of suspension or
termination, are not in anticipation of it, and, in the case of a
termination, are noncancellable, and,
(2) The costs would be allowable if the award were not suspended or
expired normally at the end of the funding period in which the
termination takes effect.
(d) Relationship to debarment and suspension. The enforcement
remedies identified in this section, including suspension and
termination, do not preclude grantee or subgrantee from being subject to
''Debarment and Suspension'' under E.O. 12549 (see 600.435).
10 CFR 600.444 Termination for convenience.
Except as provided in 600.443 awards may be terminated in whole or
in part only as follows:
(a) By the awarding agency with the consent of the grantee or
subgrantee in which case the two parties shall agree upon the
termination conditions, including the effective date and in the case of
partial termination, the portion to be terminated, or
(b) By the grantee or subgrantee upon written notification to the
awarding agency, setting forth the reasons for such termination, the
effective date, and in the case of partial termination, the portion to
be terminated. However, if, in the case of a partial termination, the
awarding agency determines that the remaining portion of the award will
not accomplish the purposes for which the award was made, the awarding
agency may terminate the award in its entirety under either 600.443 or
paragraph (a) of this section.
10 CFR 600.444 After-The-Grant Requirements
10 CFR 600.450 Closeout.
(a) General. The Federal agency will close out the award when it
determines that all applicable administrative actions and all required
work of the grant has been completed.
(b) Reports. Within 90 days after the expiration or termination of
the grant, the grantee must submit all financial, performance, and other
reports required as a condition of the grant. Upon request by the
grantee, Federal agencies may extend this timeframe. These may include
but are not limited to:
(1) Final performance or progress report.
(2) Financial Status Report (SF 269) or Outlay Report and Request for
Reimbursement for Construction Programs (SF-271) (as applicable).
(3) Final request for payment (SF-270) (if applicable).
(4) Invention disclosure (if applicable).
(5) Federally-owned property report:
In accordance with 600.432(f), a grantee must submit an inventory of
all federally owned property (as distinct from property acquired with
grant funds) for which it is accountable and request disposition
instructions from the Federal agency of property no longer needed.
(c) Cost adjustment. The Federal agency will, within 90 days after
receipt of reports in paragraph (b) of this section, make upward or
downward adjustments to the allowable costs.
(d) Cash adjustments. (1) The Federal agency will make prompt
payment to the grantee for allowable reimbursable costs.
(2) The grantee must immediately refund to the Federal agency any
balance of unobligated (unencumbered) cash advanced that is not
authorized to be retained for use on other grants.
10 CFR 600.451 Later disallowances and adjustments.
The closeout of a grant does not affect:
(a) The Federal agency's right to disallow costs and recover funds on
the basis of a later audit or other review;
(b) The grantee's obligation to return any funds due as a result of
later refunds, corrections, or other transactions;
(c) Records retention as required in 600.442;
(d) Property management requirements in 600.431 and 600.432; and
(e) Audit requirements in 600.426.
10 CFR 600.452 Collection of amounts due.
(a) Any funds paid to a grantee in excess of the amount to which the
grantee is finally determined to be entitled under the terms of the
award constitute a debt to the Federal Government. If not paid within a
reasonable period after demand, the Federal agency may reduce the debt
by:
(1) Making an adminstrative offset against other requests for
reimbursements,
(2) Withholding advance payments otherwise due to the grantee, or
(3) Other action permitted by law.
(b) Except where otherwise provided by statutes or regulations, the
Federal agency will charge interest on an overdue debt in accordance
with the Federal Claims Collection Standards (4 CFR Ch. II). The date
from which interest is computed is not extended by litigation or the
filing of any form of appeal.
10 CFR 600.452 Entitlement (Reserved)
10 CFR 600.452 Pt. 600, App. A
10 CFR 600.452 Appendix A to Part 600 -- Generally Applicable
Requirements
Nondiscrimination in Federally Assisted Programs, 10 CFR part 1040
(45 FR 40514, June 13, 1980), as proposed to be amended by 46 FR 49546
(October 6, 1981).
Nondiscrimination Provisions in Federally Assisted Construction
Contracts, Part III of Executive Order 11246 (September 24, 1965), 3 CFR
1964 -- 65 Comp., p. 345.
Comprehensive Alcohol Abuse and Alcoholism Prevention, Treatment and
Rehabilitation Act of 1970, as amended (42 U.S.C. 4581).
Drug Abuse Office and Treatment Act of 1972, as amended (21 U.S.C.
1174).
Architectural Barriers Act of 1968, as amended (42 U.S.C. 4151 et
seq.).
National Environmental Policy Act of 1969, as amended (42 U.S.C.
4321 et seq.), 40 CFR part 1500, as implemented by (45 FR 20694, March
28, 1980).
Sec. 306, Clean Air Act, as amended (42 U.S.C. 7606c).
Sec. 508, Federal Water Pollution Control Act of 1972 (33 U.S.C.
1251 et seq.); Executive Order 11738, September 12, 1973.
Title XIV, Public Health Service Act, as amended (42 U.S.C. 300f --
et seq.).
Sec. 102(a), Flood Disaster Protection Act of 1973 (Pub. L. 93-234,
87 Stat. 975).
10 CFR part 1022, ''Protection of Wetlands and Floodplains.''
Uniform Relocation Assistance and Land Acquisition Policies Act of
1970 (42 U.S.C. 4601 et seq.).
Coastal Zone Management Act of 1972, as amended (16 U.S.C. 1451 et
seq.) (15 CFR part 930).
Endangered Species Act of 1973, as amended (16 U.S.C. 1531 et seq.).
Fish and Wildlife Coordination Act (16 U.S.C. 661 et seq.).
Sec. 106, National Historic Preservation Act of 1966, as amended (16
U.S.C. 470f); Executive Order 11593, ''Protection and Enhancement of
the Cultural Environment,'' May 13, 1971, 3 CFR 1971 Comp., p. 154;
Archaeological and Historic Preservation Act of 1966 (16 U.S.C. 469 et
seq.); Protection of Historic and Cultural Properties, 36 CFR part 800.
Wild and Scenic Rivers Act of 1968, as amended (16 U.S.C. 1271 et
seq.).
Protection of Human Subjects, 10 CFR part 745.
Federal Laboratory Animal Welfare Act (7 U.S.C. 2131 et seq.) (9 CFR
parts 1, 2, and 3).
Lead-Based Paint Prohibition (42 U.S.C. 4831(b)).
Sec. 7(b), Indian Self-Determination and Education Assistance Act (25
U.S.C. 450e(b)).
Cargo Preference Act of 1954 (46 U.S.C. 1241(b)) (46 CFR 381.7).
International Air Transportation Fair Competitive Practices Act of
1974 (49 U.S.C. 1517).
Executive Order 12138, ''Creating a National Women's Business
Enterprise Policy and Prescribing Arrangements for Developing,
Coordinating, and Implementing a National Program for Women's Business
Enterprise,'' (May 18, 1979) 3 CFR 1979 Comp., p. 393.
Sec. 403(b), Power Plant and Industrial Fuel Use Act of 1978, (42
U.S.C. 8373(b)); Executive Order 12185 (December 17, 1979, 3 CFR 1979
Comp., p. 474).
The Hatch Act (5 U.S.C. 1501-1508).
Federal Reports Act, as amended by the Paperwork Reduction Act of
1980, Pub. L. 96-511 (44 U.S.C. 3501 et seq.).
OMB Circular A-111, Jointly Funded Assistance to State and Local
Governments and Nonprofit Organizations -- Policies and Procedures.
Federal Claims Collection Act of 1966, Pub. L. 89-508, 89 Stat. 309
(31 U.S.C. 951 et seq.).
OMB Circular A-88, Coordinating Indirect Cost Rates and Audit at
Educational Institutions.
OMB Circular A-73, Audit of Federal Operations and Programs.
Single Audit Act of 1984, Pub. L. 98-502.
OMB Circular A-128, Audits of State and Local Governments.
(47 FR 44108, Oct. 5, 1982, as amended at 50 FR 42361, Oct. 18, 1985;
51 FR 4297, Feb. 4, 1986)
10 CFR 600.452 Pt. 600, App. B
10 CFR 600.452 Appendix B to Part 600 -- Audit Report Distributees
Distributee: Manager, Eastern Region, Office of Inspector General,
U.S. Department of Energy, P.O. Box 1328, Oak Ridge, Tennessee
37831-1328.
For recipients in: Alabama, Arkansas, Connecticut, Delaware,
District of Columbia, Florida, Georgia, Illinois, Indiana, Iowa,
Kentucky, Louisiana, Maine, Maryland, Massachusetts, Michigan,
Minnesota, Mississippi, Missouri, New Hampshire, New Jersey, New York,
North Carolina, Ohio, Pennsylvania, Puerto Rico, Rhode Island, South
Carolina, Tennessee, Vermont, Virgin Islands, Virginia, West Virginia,
Wisconsin.
Distributee: Manager, Western Region, Office of Inspector General,
U.S. Department of Energy, P.O. Box 5400, Albuquerque, New Mexico 87115.
For recipients in: Alaska, Arizona, California, Colorado, Hawaii,
Idaho, Kansas, Montana, Nebraska, Nevada, New Mexico, North Dakota,
Oklahoma, Oregon, South Dakota, Texas, Utah, Washington, Wyoming.
(50 FR 42361, Oct. 18, 1985; 51 FR 4297, Feb. 4, 1986)
10 CFR 600.452 Pt. 601
10 CFR 600.452 PART 601 -- NEW RESTRICTIONS ON LOBBYING
Sec.
10 CFR 600.452 Subpart A -- General
601.100 Conditions on use of funds.
601.105 Definitions.
601.110 Certification and disclosure.
10 CFR 600.452 Subpart B -- Activities by Own Employees
601.200 Agency and legislative liaison.
601.205 Professional and technical services.
601.210 Reporting.
10 CFR 600.452 Subpart C -- Activities by Other Than Own Employees
601.300 Professional and technical services.
10 CFR 600.452 Subpart D -- Penalties and Enforcement
601.400 Penalties.
601.405 Penalty procedures.
601.410 Enforcement.
10 CFR 600.452 Subpart E -- Exemptions
601.500 Secretary of Defense.
10 CFR 600.452 Subpart F -- Agency Reports
601.600 Semi-annual compilation.
601.605 Inspector general report.
Appendix A to part 601 -- Certification Regarding Lobbying
Appendix B to part 601 -- Disclosure Form to Report Lobbying
Authority: Section 319, Public Law 101-121 (31 U.S.C. 1352); Secs.
644 and 646, Pub. L. 95-91, 91 Stat. 599 (42 U.S.C. 7254 and 7256);
Pub. L. 96-258, 96 Stat. 1003-1005 (31 U.S.C. 6301-6308).
Source: 55 FR 6737 and 6746, Feb. 26, 1990, unless otherwise noted.
Cross reference: See also Office of Management and Budget notice
published at 54 FR 52306, December 20, 1989.
10 CFR 600.452 Subpart A -- General
10 CFR 601.100 Conditions on use of funds.
(a) No appropriated funds may be expended by the recipient of a
Federal contract, grant, loan, or cooperative ageement to pay any person
for influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with any of the following
covered Federal actions: the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(b) Each person who requests or receives from an agency a Federal
contract, grant, loan, or cooperative agreement shall file with that
agency a certification, set forth in appendix A, that the person has not
made, and will not make, any payment prohibited by paragraph (a) of this
section.
(c) Each person who requests or receives from an agency a Federal
contract, grant, loan, or a cooperative agreement shall file with that
agency a disclosure form, set forth in appendix B, if such person has
made or has agreed to make any payment using nonappropriated funds (to
include profits from any covered Federal action), which would be
prohibited under paragraph (a) of this section if paid for with
appropriated funds.
(d) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a statement, set forth in appendix A, whether that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
(e) Each person who requests or receives from an agency a commitment
providing for the United States to insure or guarantee a loan shall file
with that agency a disclosure form, set forth in appendix B, if that
person has made or has agreed to make any payment to influence or
attempt to influence an officer or employee of any agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with that loan insurance or guarantee.
10 CFR 601.105 Definitions.
For purposes of this part:
(a) Agency, as defined in 5 U.S.C. 552(f), includes Federal executive
departments and agencies as well as independent regulatory commissions
and Government corporations, as defined in 31 U.S.C. 9101(1).
(b) Covered Federal action means any of the following Federal
actions:
(1) The awarding of any Federal contract;
(2) The making of any Federal grant;
(3) The making of any Federal loan;
(4) The entering into of any cooperative agreement; and,
(5) The extension, continuation, renewal, amendment, or modification
of any Federal contract, grant, loan, or cooperative agreement.
Covered Federal action does not include receiving from an agency a
commitment providing for the United States to insure or guarantee a
loan. Loan guarantees and loan insurance are addressed independently
within this part.
(c) Federal contract means an acquisition contract awarded by an
agency, including those subject to the Federal Acquisition Regulation
(FAR), and any other acquisition contract for real or personal property
or services not subject to the FAR.
(d) Federal cooperative agreement means a cooperative agreement
entered into by an agency.
(e) Federal grant means an award of financial assistance in the form
of money, or property in lieu of money, by the Federal Government or a
direct appropriation made by law to any person. The term does not
include technical assistance which provides services instead of money,
or other assistance in the form of revenue sharing, loans, loan
guarantees, loan insurance, interest subsidies, insurance, or direct
United States cash assistance to an individual.
(f) Federal loan means a loan made by an agency. The term does not
include loan guarantee or loan insurance.
(g) Indian tribe and tribal organization have the meaning provided in
section 4 of the Indian Self-Determination and Education Assistance Act
(25 U.S.C. 450B). Alaskan Natives are included under the definitions of
Indian tribes in that Act.
(h) Influencing or attempting to influence means making, with the
intent to influence, any communication to or appearance before an
officer or employee or any agency, a Member of Congress, an officer or
employee of Congress, or an employee of a Member of Congress in
connection with any covered Federal action.
(i) Loan guarantee and loan insurance means an agency's guarantee or
insurance of a loan made by a person.
(j) Local government means a unit of government in a State and, if
chartered, established, or otherwise recognized by a State for the
performance of a governmental duty, including a local public authority,
a special district, an intrastate district, a council of governments, a
sponsor group representative organization, and any other instrumentality
of a local government.
(k) Officer or employee of an agency includes the following
individuals who are employed by an agency:
(1) An individual who is appointed to a position in the Government
under title 5, U.S. Code, including a position under a temporary
appointment;
(2) A member of the uniformed services as defined in section 101(3),
title 37, U.S. Code;
(3) A special Government employee as defined in section 202, title
18, U.S. Code; and,
(4) An individual who is a member of a Federal advisory committee, as
defined by the Federal Advisory Committee Act, title 5, U.S. Code
appendix 2.
(l) Person means an individual, corporation, company, association,
authority, firm, partnership, society, State, and local government,
regardless of whether such entity is operated for profit or not for
profit. This term excludes an Indian tribe, tribal organization, or any
other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(m) Reasonable compensation means, with respect to a regularly
employed officer or employee of any person, compensation that is
consistent with the normal compensation for such officer or employee for
work that is not furnished to, not funded by, or not furnished in
cooperation with the Federal Government.
(n) Reasonable payment means, with respect to perfessional and other
technical services, a payment in an amount that is consistent with the
amount normally paid for such services in the private sector.
(o) Recipient includes all contractors, subcontractors at any tier,
and subgrantees at any tier of the recipient of funds received in
connection with a Federal contract, grant, loan, or cooperative
agreement. The term excludes an Indian tribe, tribal organization, or
any other Indian organization with respect to expenditures specifically
permitted by other Federal law.
(p) Regularly employed means, with respect to an officer or employee
of a person requesting or receiving a Federal contract, grant, loan, or
cooperative agreement or a commitment providing for the United States to
insure or guarantee a loan, an officer or employee who is employed by
such person for at least 130 working days within one year immediately
preceding the date of the submission that initiates agency consideration
of such person for receipt of such contract, grant, loan, cooperative
agreement, loan insurance commitment, or loan guarantee commitment. An
officer or employee who is employed by such person for less than 130
working days within one year immediately preceding the date of the
submission that initiates agency consideration of such person shall be
considered to be regularly employed as soon as he or she is employed by
such person for 130 working days.
(q) State means a State of the United States, the District of
Columbia, the Commonwealth of Puerto Rico, a territory or possession of
the United States, an agency or instrumentality of a State, and a
multi-State, regional, or interstate entity having governmental duties
and powers.
10 CFR 601.110 Certification and disclosure.
(a) Each person shall file a certification, and a disclosure form, if
required, with each submission that initiates agency consideration of
such person for:
(1) Award of a Federal contract, grant, or cooperative agreement
exceeding $100,000; or
(2) An award of a Federal loan or a commitment providing for the
United States to insure or guarantee a loan exceeding $150,000.
(b) Each person shall file a certification, and a disclosure form, if
required, upon receipt by such person of:
(1) A Federal contract, grant, or cooperative agreement exceeding
$100,000; or
(2) A Federal loan or a commitment providing for the United States to
insure or guarantee a loan exceeding $150,000,
unless such person previously filed a certification, and a disclosure
form, if required, under paragraph (a) of this section.
(c) Each person shall file a disclosure form at the end of each
calendar quarter in which there occurs any event that requires
disclosure or that materially affects the accuracy of the information
contained in any disclosure form previously filed by such person under
paragraphs (a) or (b) of this section. An event that materially affects
the accuracy of the information reported includes:
(1) A cumulative increase of $25,000 or more in the amount paid or
expected to be paid for influencing or attempting to influence a covered
Federal action; or
(2) A change in the person(s) or individual(s) influencing or
attempting to influence a covered Federal action; or,
(3) A change in the officer(s), employee(s), or Member(s) contacted
to influence or attempt to influence a covered Federal action.
(d) Any person who requests or receives from a person referred to in
paragraphs (a) or (b) of this section:
(1) A subcontract exceeding $100,000 at any tier under a Federal
contract;
(2) A subgrant, contract, or subcontract exceeding $100,000 at any
tier under a Federal grant;
(3) A contract or subcontract exceeding $100,000 at any tier under a
Federal loan exceeding $150,000; or,
(4) A contract or subcontract exceeding $100,000 at any tier under a
Federal cooperative agreement,
shall file a certification, and a disclosure form, if required, to
the next tier above.
(e) All disclosure forms, but not certifications, shall be forwarded
from tier to tier until received by the person referred to in paragraphs
(a) or (b) of this section. That person shall forward all disclosure
forms to the agency.
(f) Any certification or disclosure form filed under paragraph (e) of
this section shall be treated as a material representation of fact upon
which all receiving tiers shall rely. All liability arising from an
erroneous representation shall be borne solely by the tier filing that
representation and shall not be shared by any tier to which the
erroneous representation is forwarded. Submitting an erroneous
certification or disclosure constitutes a failure to file the required
certification or disclosure, respectively. If a person fails to file a
required certification or disclosure, the United States may pursue all
available remedies, including those authorized by section 1352, title
31, U.S. Code.
(g) For awards and commitments in process prior to December 23, 1989,
but not made before that date, certifications shall be required at award
or commitment, covering activities occurring between December 23, 1989,
and the date of award or commitment. However, for awards and
commitments in process prior to the December 23, 1989 effective date of
these provisions, but not made before December 23, 1989, disclosure
forms shall not be required at time of award or commitment but shall be
filed within 30 days.
(h) No reporting is required for an activity paid for with
appropriated funds if that activity is allowable under either subpart B
or C.
10 CFR 601.110 Subpart B -- Activities by Own Employees
10 CFR 601.200 Agency and legislative liaison.
(a) The prohibition on the use of appropriated funds, in 601.100
(a), does not apply in the case of a payment of reasonable compensation
made to an officer or employee of a person requesting or receiving a
Federal contract, grant, loan, or cooperative agreement if the payment
is for agency and legislative liaison activities not directly related to
a covered Federal action.
(b) For purposes of paragraph (a) of this section, providing any
information specifically requested by an agency or Congress is allowable
at any time.
(c) For purposes of paragraph (a) of this section, the following
agency and legislative liaison activities are allowable at any time only
where they are not related to a specific solicitation for any covered
Federal action:
(1) Discussing with an agency (including individual demonstrations)
the qualities and characteristics of the person's products or services,
conditions or terms of sale, and service capabilities; and,
(2) Technical discussions and other activities regarding the
application or adaptation of the person's products or services for an
agency's use.
(d) For purposes of paragraph (a) of this section, the following
agencies and legislative liaison activities are allowable only where
they are prior to formal solicitation of any covered Federal action:
(1) Providing any information not specifically requested but
necessary for an agency to make an informed decision about initiation of
a covered Federal action;
(2) Technical discussions regarding the preparation of an unsolicited
proposal prior to its official submission; and,
(3) Capability presentations by persons seeking awards from an agency
pursuant to the provisions of the Small Business Act, as amended by
Public Law 95-507 and other subsequent amendments.
(e) Only those activities expressly authorized by this section are
allowable under this section.
10 CFR 601.205 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in 601.100
(a), does not apply in the case of a payment of reasonable compensation
made to an officer or employee of a person requesting or receiving a
Federal contract, grant, loan, or cooperative agreement or an extension,
continuation, renewal, amendment, or modification of a Federal contract,
grant, loan, or cooperative agreement if payment is for professional or
technical services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) For purposes of paragraph (a) of this section, ''professional and
technical services'' shall be limited to advice and analysis directly
applying any professional or technical discipline. For example,
drafting of a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on
the performance or operational capability of a piece of equipment
rendered directly in the negotiation of a contract is allowable.
However, communications with the intent to influence made by a
professional (such as a licensed lawyer) or a technical person (such as
a licensed accountant) are not allowable under this section unless they
provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(c) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(d) Only those services expressly authorized by this section are
allowable under this section.
10 CFR 601.210 Reporting.
No reporting is required with respect to payments of reasonable
compensation made to regularly employed officers or employees of a
person.
10 CFR 601.210 Subpart C -- Activities by Other Than Own Employees
10 CFR 601.300 Professional and technical services.
(a) The prohibition on the use of appropriated funds, in 601.100
(a), does not apply in the case of any reasonable payment to a person,
other than an officer or employee of a person requesting or receiving a
covered Federal action, if the payment is for professional or technical
services rendered directly in the preparation, submission, or
negotiation of any bid, proposal, or application for that Federal
contract, grant, loan, or cooperative agreement or for meeting
requirements imposed by or pursuant to law as a condition for receiving
that Federal contract, grant, loan, or cooperative agreement.
(b) The reporting requirements in 601.110 (a) and (b) regarding
filing a disclosure form by each person, if required, shall not apply
with respect to professional or technical services rendered directly in
the preparation, submission, or negotiation of any commitment providing
for the United States to insure or guarantee a loan.
(c) For purposes of paragraph (a) of this section, ''professional and
technical services'' shall be limited to advice and analysis directly
applying any professional or technical discipline. For example,
drafting or a legal document accompanying a bid or proposal by a lawyer
is allowable. Similarly, technical advice provided by an engineer on
the performance or operational capability of a piece of equipment
rendered directly in the negotiation of a contract is allowable.
However, communications with the intent to influence made by a
professional (such as a licensed lawyer) or a technical person (such as
a licensed accountant) are not allowable under this section unless they
provide advice and analysis directly applying their professional or
technical expertise and unless the advice or analysis is rendered
directly and solely in the preparation, submission or negotiation of a
covered Federal action. Thus, for example, communications with the
intent to influence made by a lawyer that do not provide legal advice or
analysis directly and solely related to the legal aspects of his or her
client's proposal, but generally advocate one proposal over another are
not allowable under this section because the lawyer is not providing
professional legal services. Similarly, communications with the intent
to influence made by an engineer providing an engineering analysis prior
to the preparation or submission of a bid or proposal are not allowable
under this section since the engineer is providing technical services
but not directly in the preparation, submission or negotiation of a
covered Federal action.
(d) Requirements imposed by or pursuant to law as a condition for
receiving a covered Federal award include those required by law or
regulation, or reasonably expected to be required by law or regulation,
and any other requirements in the actual award documents.
(e) Persons other than officers or employees of a person requesting
or receiving a covered Federal action include consultants and trade
associations.
(f) Only those services expressly authorized by this section are
allowable under this section.
10 CFR 601.300 Subpart D -- Penalties and Enforcement
10 CFR 601.400 Penalties.
(a) Any person who makes an expenditure prohibited herein shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such expenditure.
(b) Any person who fails to file or amend the disclosure form (see
appendix B) to be filed or amended if required herein, shall be subject
to a civil penalty of not less than $10,000 and not more than $100,000
for each such failure.
(c) A filing or amended filing on or after the date on which an
administrative action for the imposition of a civil penalty is commenced
does not prevent the imposition of such civil penalty for a failure
occurring before that date. An administrative action is commenced with
respect to a failure when an investigating official determines in
writing to commence an investigation of an allegation of such failure.
(d) In determining whether to impose a civil penalty, and the amount
of any such penalty, by reason of a violation by any person, the agency
shall consider the nature, circumstances, extent, and gravity of the
violation, the effect on the ability of such person to continue in
business, any prior violations by such person, the degree of culpability
of such person, the ability of the person to pay the penalty, and such
other matters as may be appropriate.
(e) First offenders under paragraphs (a) or (b) of this section shall
be subject to a civil penalty of $10,000, absent aggravating
circumstances. Second and subsequent offenses by persons shall be
subject to an appropriate civil penalty between $10,000 and $100,000, as
determined by the agency head or his or her designee.
(f) An imposition of a civil penalty under this section does not
prevent the United States from seeking any other remedy that may apply
to the same conduct that is the basis for the imposition of such civil
penalty.
10 CFR 601.405 Penalty procedures.
Agencies shall impose and collect civil penalties pursuant to the
provisions of the Program Fraud and Civil Remedies Act, 31 U.S.C.
sections 3803 (except subsection (c)), 3804, 3805, 3806, 3807, 3808, and
3812, insofar as these provisions are not inconsistent with the
requirements herein.
10 CFR 601.410 Enforcement.
The head of each agency shall take such actions as are necessary to
ensure that the provisions herein are vigorously implemented and
enforced in that agency.
10 CFR 601.410 Subpart E -- Exemptions
10 CFR 601.500 Secretary of Defense.
(a) The Secretary of Defense may exempt, on a case-by-case basis, a
covered Federal action from the prohibition whenever the Secretary
determines, in writing, that such an exemption is in the national
interest. The Secretary shall transmit a copy of each such written
exemption to Congress immediately after making such a determination.
(b) The Department of Defense may issue supplemental regulations to
implement paragraph (a) of this section.
10 CFR 601.500 Subpart F -- Agency Reports
10 CFR 601.600 Semi-annual compilation.
(a) The head of each agency shall collect and compile the disclosure
reports (see appendix B) and, on May 31 and November 30 of each year,
submit to the Secretary of the Senate and the Clerk of the House of
Representatives a report containing a compilation of the information
contained in the disclosure reports received during the six-month period
ending on March 31 or September 30, respectively, of that year.
(b) The report, including the compilation, shall be available for
public inspection 30 days after receipt of the report by the Secretary
and the Clerk.
(c) Information that involves intelligence matters shall be reported
only to the Select Committee on Intelligence of the Senate, the
Permanent Select Committee on Intelligence of the House of
Representatives, and the Committees on Appropriations of the Senate and
the House of Representatives in accordance with procedures agreed to by
such committees. Such information shall not be available for public
inspection.
(d) Information that is classified under Executive Order 12356 or any
successor order shall be reported only to the Committee on Foreign
Relations of the Senate and the Committee on Foreign Affairs of the
House of Representatives or the Committees on Armed Services of the
Senate and the House of Representatives (whichever such committees have
jurisdiction of matters involving such information) and to the
Committees on Appropriations of the Senate and the House of
Representatives in accordance with procedures agreed to by such
committees. Such information shall not be available for public
inspection.
(e) The first semi-annual compilation shall be submitted on May 31,
1990, and shall contain a compilation of the disclosure reports received
from December 23, 1989 to March 31, 1990.
(f) Major agencies, designated by the Office of Management and Budget
(OMB), are required to provide machine-readable compilations to the
Secretary of the Senate and the Clerk of the House of Representatives no
later than with the compilations due on May 31, 1991. OMB shall provide
detailed specifications in a memorandum to these agencies.
(g) Non-major agencies are requested to provide machine-readable
compilations to the Secretary of the Senate and the Clerk of the House
of Representatives.
(h) Agencies shall keep the originals of all disclosure reports in
the official files of the agency.
10 CFR 601.605 Inspector General report.
10 CFR (a) The Inspector General, or other official as specified in paragraph (b) of this section, of each agency shall prepare and submit to Congress each year, commencing with submission of the President's Budget in 1991, an evaluation of the compliance of that agency with, and the effectiveness of, the requirements herein. The evaluation may include any recommended changes that may be necessary to strengthen or improve the requirements.
(a) The Inspector General, or other official as specified in paragraph (b) of this section, of each agency shall prepare and submit to Congres s each year, commencing with submission of the President's Budget in 19 91, an evaluation of the compliance of that agency with, and the effect iveness of, the requirements herein. The evaluation may include any rec ommended changes that may be necessary to strengthen or improve the req uirements.
10 CFR (b) In the case of an agency that does not have an Inspector General, the agency official comparable to an Inspector General shall prepare and submit the annual report, or, if there is no such comparable official, the head of the agency shall prepare and submit the annual report.
(c) The annual report shall be submitted at the same time the agency submits its annual budget justifications to Congress.
(d) The annual report shall include the following: All alleged violations relating to the agency's covered Federal actions during the year covered by the report, the actions taken by the head of the agency in the year covered by the report with respect to those alleged violations and alleged violations in previous years, and the amounts of civil penalties imposed by the agency in the year covered by the report.
10 CFR 601.605 Inspector General report Pt. 601, App. A
10 CFR 601.605 Inspector General report Appendix A to part 601 --
Certification Regarding Lobbying
The undersigned certifies, to the best of his or her knowledge and
belief, that:
(1) No Federal appropriated funds have been paid or will be paid, by
or on behalf of the undersigned, to any person for influencing or
attempting to influence an officer or employee of an agency, a Member of
Congress, an officer or employee of Congress, or an employee of a Member
of Congress in connection with the awarding of any Federal contract, the
making of any Federal grant, the making of any Federal loan, the
entering into of any cooperative agreement, and the extension,
continuation, renewal, amendment, or modification of any Federal
contract, grant, loan, or cooperative agreement.
(2) If any funds other than Federal appropriated funds have been paid
or will be paid to any person for influencing or attempting to influence
an officer or employee of any agency, a Member of Congress, an officer
or employee of Congress, or an employee of a Member of Congress in
connection with this Federal contract, grant, loan, or cooperative
agreement, the undersigned shall complete and submit Standard Form-LLL,
''Disclosure Form to Report Lobbying,'' in accordance with its
instructions.
(3) The undersigned shall require that the language of this
certification be included in the award documents for all subawards at
all tiers (including subcontracts, subgrants, and contracts under
grants, loans, and cooperative agreements) and that all subrecipients
shall certify and disclose accordingly.
This certification is a material representation of fact upon which
reliance was placed when this transaction was made or entered into.
Submission of this certification is a prerequisite for making or
entering into this transaction imposed by section 1352, title 31, U.S.
Code. Any person who fails to file the required certification shall be
subject to a civil penalty of not less than $10,000 and not more than
$100,000 for each such failure.
The undersigned states, to the best of his or her knowledge and
belief, that:
If any funds have been paid or will be paid to any person for
influencing or attempting to influence an officer or employee of any
agency, a Member of Congress, an officer or employee of Congress, or an
employee of a Member of Congress in connection with this commitment
providing for the United States to insure or guarantee a loan, the
undersigned shall complete and submit Standard Form-LLL, ''Disclosure
Form to Report Lobbying,'' in accordance with its instructions.
Submission of this statement is a prerequisite for making or entering
into this transaction imposed by section 1352, title 31, U.S. Code. Any
person who fails to file the required statement shall be subject to a
civil penalty of not less than $10,000 and not more than $100,000 for
each such failure.
10 CFR 601.605 Inspector General report Pt. 601, App. B
10 CFR 601.605 Inspector General report Appendix B to part 601 --
Disclosure Form to Report Lobbying
insert illustration 532
insert illustration 533
insert illustration 534
10 CFR 601.605 Inspector General report Pt. 605
10 CFR 601.605 Inspector General report PART 605 -- SPECIAL RESEARCH
GRANTS PROGRAM
Sec.
605.1 Purpose and scope.
605.2 Applicability.
605.3 Definitions.
605.4 Deviations.
605.5 Special research grants.
605.6 Eligibility.
605.7 (Reserved)
605.8 Solicitation.
605.9 Applications.
605.10 Application evaluation and selection.
605.11 Additional requirements.
605.12 Funding.
605.13 Cost sharing.
605.14 Limitation of DOE liability.
605.15 Fee.
605.16 -- 605.17 (Reserved)
605.18 National Security.
605.19 Reports.
605.20 Dissemination of results.
Appendix A -- The Office of Basic Energy Science
Authority: Section 31 of the Atomic Energy Act, as amended, Pub. L.
83-703, 68 Stat. 919 (42 U.S.C. 2051); sec. 107 of the Energy
Reorganization Act of 1974, Pub. L. 93-438, 88 Stat. 1240 (42 U.S.C.
5817); Federal Nonnuclear Energy Research and Development Act of 1974,
Pub. L. 93-577, 88 Stat. 1878 (42 U.S.C. 5901 et seq.); Secs. 644
and 646 of the Department of Energy Organization Act, Pub. L. 95-91,
91 Stat. 599 (42 U.S.C. 7254 and 7256); Federal Grant and Cooperative
Agreement Act, as amended (31 U.S.C. 6301 et seq.).
Source: 55 FR 10036, Mar. 19, 1990, unless otherwise noted.
10 CFR 605.1 Purpose and scope.
This part sets forth the policies and procedures applicable to the
award and administration of special research grants by the DOE Office of
Energy Research for basic and applied research and related conference
and training activities.
10 CFR 605.2 Applicability.
(a) This part applies to all special research grants awarded after
the effective date of this amended rule.
(b) Except as otherwise provided by this part, the award and
administration of special research grants shall be governed by 10 CFR
part 600 (DOE Financial Assistance Rules).
10 CFR 605.3 Definitions.
In addition to the definitions provided in 10 CFR part 600, the
following definitions are provided for purposes of this part --
(a) Basic and applies research means basic and applied research and
that part of development not related to the development of specific
systems or products. The primary aim of research is scientific study
and experimentation directed toward advancing the state-of-the-art or
increasing knowledge or understanding rather than focusing on a specific
system or product.
(b) Grantee obligation means the amounts of orders placed, contracts
and subgrants awarded, services received, and similar transactions
during a given period that will require payment by the grantee during
the same or a future period.
(c) Principal investigator means the scientist or other individual
designated by the recipient to direct the project.
(d) Related conference means scientific or technical conferences,
symposia, workshops or seminars for the purpose of communicating or
exchanging information or views pertinent to the basic and applied
research of OER.
(e) Special purpose equipment means equipment which is used only for
research, medical, scientific, or other technical activities.
10 CFR 605.4 Deviations.
Single-case deviations from this part may be authorized in writing by
the Director or Deputy Director of OER or the Head of a Contracting
Activity upon the written request of DOE staff, an applicant for an
award, or a recipient. A request from an applicant or a recipient must
be submitted to or through the cognizant contracting officer. Whenever
a proposed deviation from this part would be a deviation from 10 CFR
part 600, the deviation must also be authorized in accordance with the
procedures prescribed in that part.
10 CFR 605.5 Special research grants.
(a) DOE may make special research grants under this part for basic
and applied research and related conference and training activities in
the OER program areas set forth in paragraph (b) of this section and
described in appendix A of this part.
(b) The program areas are:
(1) Basic Energy Sciences, which includes:
(i) Energy Biosciences;
(ii) Chemical Sciences;
(iii) Geosciences;
(iv) Engineering Research;
(v) Materials Sciences;
(vi) Advanced Energy Projects;
(2) High Energy and Nuclear Physics, which includes:
(i) Nuclear Physics;
(ii) High Energy Physics;
(iii) Superconducting Super Collider
(3) Health and Environmental Research, which includes:
(i) Physical and Technological Research;
(ii) Ecological Research;
(iii) Health Effects Research;
(iv) Human Health and Assessments; and
(v) Carbon Dioxide Research;
(4) Fusion Energy, which includes:
(i) Applied Plasma Physics;
(ii) Confinement Systems;
(iii) Development and Technology
(5) Field Operations Management, which includes Nuclear Engineering
Research;
(6) Scientific Computing Staff;
(7) Other program areas as may be described by notice published in
the Federal Register.
10 CFR 605.6 Eligibility.
Any university or other institution of higher education or other
non-profit or for-profit organization, non-Federal agency, or entity is
eligible for a special research grant. An unaffiliated individual also
is eligible for a special research grant.
10 CFR 605.7 (Reserved)
10 CFR 605.8 Solicitation.
(a) The Catalog of Federal Domestic Assistance number for this
program is 81.049, and its solicitation control number is SRG 10 CFR
part 605.
(b) An application for a new grant under this solicitation may be
submitted at any time to DOE at the address specified in paragraph (c)
of this section. New applications shall receive consideration for
funding generally within 6 months but, in any event, no later than 12
months from the date of receipt by DOE.
(c) Applicants may obtain application forms, described in 605.9(b),
and additional information from the Acquisition and Assistance
Management Division, Office of Energy Research, ER-64, Department of
Energy, Washington, DC 20545, (301) 353-5544, and shall submit
applications to the same address.
(d) DOE shall publish annually, in the Federal Register, a notice of
the availability of special research grants. DOE shall also publish in
the Commerce Business Daily an abbreviated notice citing the Federal
Register notice of availability and this part, and DOE may also publish
notices or abbreviated notices of availability in trade and professional
journals, and news media, and use other means of communication, as
appropriate.
(1) Each notice of availability shall cite this part and shall
include:
(i) The Catalog of Federal Domestic Assistance number and
solicitation control number of the program;
(ii) The amount of money available or estimated to be available for
award;
(iii) The name of the responsible DOE program official to contact for
additional information, and an address where application forms may be
obtained;
(iv) The address for submission of applications; and
(v) Any evaluation criteria in addition to those set forth in
605.10.
(2) The notice of availability may also include any other relevant
information helpful to applicants such as:
(i) Program objectives,
(ii) A research agenda or potential areas for research initiatives,
(iii) Problem areas requiring additional research, and
(iv) Any other information which identifies areas in which grants may
be made.
(e) DOE is under no obligation to pay for any costs associated with
the preparation or submission of applications.
(f) DOE reserves the right to fund, in whole or in part, any, all, or
none of the applications submitted.
(g) To be considered for a continuation or renewal award under this
part, an incumbent grantee shall submit a continuation or renewal
application as provided in 605.9 (c) and (h).
10 CFR 605.9 Applications.
(a) An original and seven copies of the application for initial
support must be submitted except that State governments, local
governments, or Indian tribal governments shall not be required to
submit more than the original and two copies of the application.
(b) Each new or renewal application in response to this part must
include --
(1) An application face sheet page, DOE Form 4650.2 (approved by OMB
under OMB Control No. 1910-1400). However, the facesheet of the
application for State and local governments and Indian tribal government
applicants shall be the facesheet of Standard Form (SF) 424 (approved by
OMB under OMB Control Number 0348-0043).
(2) A detailed description of the proposed project, including the
objectives of the project, its relationship to DOE's program and the
applicant's plan for carrying it out;
(3) Detailed information about the background and experience of the
principal investigator(s) (including references to publications), the
facilities and experience of the applicant, and the cost-sharing
arrangements, if any.
(4) A budget with supporting justification sufficient to evaluate the
costs of the proposed project.
(i) Budget information provided by State and local government and
Indian tribal government applicants shall be on Standard Form 424A,
Budget Information for Non-Construction Programs, (approved under OMB
Control No. 0348-0044). All other applicants shall use budget forms ERF
4620.1 and ERF 4620.A1 (approved by OMB under Control No. 1910-1400).
(ii) DOE may, subsequent to receipt of an application, request
additional budgetary information from an applicant when necessary for
clarification or to make informed preaward determinations under 10 CFR
part 600.
(5) Any preaward assurances required pursuant to 10 CFR parts 600 and
605.11.
(c) Applications for a continuation or a renewal award must be
submitted in an original and seven copies, except that State
governments, local governments, or Indian tribes are required to submit
only an original and two copies, and for continuation awards need submit
only those pages of application form that contain information different
from that provided in the original application (approved by OMB under
OMB Control Numbers 0348-0005-0348-0009).
(d) The application must be signed by an official who is authorized
to act for the applicant organization and to commit the applicant to
comply with the terms and conditions of the grant, if awarded, or by an
unaffiliated individual applicant.
(e) All applications which involve research, development, or
demonstration activities when such activities: (1) Have a unique
geographic focus and are directly relevant to the governmental
responsibilities of a State or local government within the geographic
area; (2) necessitate the preparation of an Environmental Impact
Statement under the National Environmental Policy Act of 1969 (42 U.S.C.
4321 et seq. (1976)); or (3) are to be initiated at a particular site
or location and require unusual measures to limit the possibility of
adverse exposure or hazard to the general public, are subject to the
provisions of Executive Order 12372 and 10 CFR part 1005. Anyone
planning to submit such applications should contact ER for further
information about compliance requirements.
(f) DOE may return an application which does not include all
information and documentation required by statute, this part, 10 CFR
part 600 and the notice of availability of grants, when the nature of
the omission precludes review of the application.
(g) During the review of a complete application, DOE may request the
submission of additional information only if the information is
essential to evaluate the application.
(h) Except as provided in paragraph (c) of this section, each
application for a continuation award must be submitted no later than six
months before the expiration of the current budget period and must be on
the same forms as required for initial applications, as appropriate.
(i) In addition to including the information described in paragraphs
(b), (c), and (d) of this section, an application for a renewal award
must be submitted no later than six months prior to the scheduled
expiration of the project period and must be on the same forms and
include the same type of information as that required for initial
applications. The renewal application must outline and justify a
program and budget for the proposed project period, showing in detail
the estimated cost of the proposed project, together with an indication
of the amount of funds needed and the amount of cost sharing, if any.
The application also shall describe and explain the reasons for any
change in the scope or objectives of the proposed project, and shall
compare and explain any difference between the estimates in the proposed
budget and actual costs experienced as of the date of the application.
(j) DOE is not required to return to the applicant an application
which is not selected or funded.
10 CFR 605.10 Application evaluation and selection.
(a) Applications shall be evaluated for funding generally within 6
months but, in any event, no later than 12 months from the date of
receipt by DOE. After DOE has held an application for 6 months, the
applicant may, in response to DOE's request, be required to revalidate
the terms of the original application.
(b) DOE staff shall perform an initial evaluation of all applications
to ensure that the information required by this part is provided, that
the proposed effort is technically sound and feasible, and that the
effort is consistent with program funding priorities. For applications
which pass the initial evaluation, DOE shall review and evaluate each
application received based on the criteria set forth below and in
accordance with the ER objective Merit Review System developed as
required under DOE Financial Assistance Regulations 10 CFR part 600.
(c) DOE shall select evaluators on the basis of their professional
qualifications and expertise in the field of research. Evaluators shall
be required to comply with all applicable DOE rules or directives
concerning the use of outside evaluators.
(d) DOE shall evaluate new and renewal applications based on the
following criteria which are listed in descending order of importance:
(1) The scientific and technical merit of the research;
(2) The appropriateness of the proposed method or approach;
(3) Competency of research personnel and adequacy of proposed
resources;
(4) Reasonableness and appropriateness of the proposed budget; and
(5) Other appropriate factors, established and set forth by ER in a
notice of availability or in a specific solicitation.
(e) Also DOE shall consider, as part of the evaluation, other
available advice or information as well as program policy factors such
as ensuring an appropriate balance among the program areas listed in
605.5(b) of this part.
(f) In addition to the evaluation criteria set forth in paragraphs
(d) and (e) of this section, DOE shall consider the grantee's
performance under the existing grant during the evaluation of a renewal
or continuation application.
(g) Selection of applications for award will be based upon the
findings of the technical evaluations, the importance and relevance of
the proposed research to ER's missions, and fund availability. Cost
reasonableness and realism will also be considered to the extent
appropriate.
(h) After the selection of an application, DOE may, if necessary,
enter into negotiations with an applicant. Such negotiations are not a
commitment that DOE will make an award.
10 CFR 605.11 Additional requirements.
(a) A grantee performing research, development, or related activities
involving the use of human subjects must comply with DOE regulations in
10 CFR part 745 ''Protection of Human Subjects'' and any additional
provisions which may be included in the Special Terms and Conditions of
the grant.
(b) A grantee performing research involving recombinant DNA molecules
and/or organisms and viruses containing recombinant DNA molecules shall
comply with the National Institutes of Health ''Guidelines for Research
Involving Recombinant DNA Molecules (51 FR 16958, May 7, 1986), or such
later revision of those guidelines as may be published in the Federal
Register. (The guidelines are available from the office of Recombinant
DNA Activities, National Institutes of Health, Bldg. 31, Rm. 4B11,
Bethesda, MD 20892.)
(c) Any grantee performing research on warm-blooded animals shall
comply with the Federal Laboratory Animal Welfare Act of 1966, as
amended (7 U.S.C. 2131 et seq.) and the regulations promulgated
thereunder by the Secretary of Agriculture at 9 CFR chapter I,
subchapter A, pertaining to the care, handling, and treatment of warm
blooded animals held or used for research, teaching, or other activities
supported by Federal awards. The grantee shall comply with the
guidelines described in DHHS Publication No. (NIH) 86-23, ''Guide for
the Care and Use of Laboratory Animals'' or succeeding revised editions.
(This guide is available from the Office for Protection from Research
Risks, Office of the Director, National Institutes of Health, Building
31, Room 4B09, Bethesda, Maryland 20205.)
10 CFR 605.12 Funding.
(a) The project period during which DOE expects to provide grant
support for an approved project under this part shall generally not
exceed three years and may exceed five years only if DOE makes a renewal
award or otherwise extends the grant award. The project period shall be
specified on the Notice of Financial Assistance Award (DOE Form 4600.1).
(b) Each budget period for a grant under this part shall generally be
12 months and may be as much as 24 months as determined appropriate by
ER programs.
10 CFR 605.13 Cost sharing.
Cost sharing is not required nor will it be considered as a criterion
in the evaluation and selection process unless otherwise provided under
605.10(d)(5).
10 CFR 605.14 Limitation of DOE liability.
Grants awarded under this part are subject to the requirement that
the maximum DOE obligation to the recipient is the amount shown in the
Notice of Financial Assistance Award as the amount of DOE funds
obligated. DOE shall not be obligated to make any additional,
supplemental, continuation, renewal or other award for the same or any
other purpose.
10 CFR 605.15 Fee.
(a) Notwithstanding 10 CFR part 600, a fee may be paid, in
appropriate circumstances, to a grantee which is a small business
concern as qualified under the criteria and size standards of 13 CFR
part 121 in order to permit the concern to participate in the Special
Research Grant Program. Whether or not it is appropriate to pay a fee
shall be determined by the Contracting Officer who shall, at a minimum,
apply the following guidelines:
(1) Whether the acceptance of the grant will displace other work the
small business is currently engaged in or committed to assume in the
near future; or
(2) Whether the acceptance of the grant will, in the absence of
paying a fee, cause substantial financial distress to the business. In
evaluating financial distress, the Contracting Officer shall balance
current displacement against reasonable future benefit to the company.
(If the award will result in the beneficial expansion of the existing
business base of the company, then no fee would generally be
appropriate.) Fees shall not be paid to other entities except as a
deviation from 10 CFR part 600, nor shall fees be paid under grants in
support of conferences.
(b) To request a fee, a small business concern shall submit with its
application a written self certification that it is a small business
concern qualified under the criteria and size standards in 13 CFR part
121. In addition, the application must state the amount of fee
requested for the entire project period and the basis for requesting
that amount, and must also state why payment of a fee by DOE would be
appropriate.
(c) If the Contracting Officer determines that payment of a fee is
appropriate under paragraph (a) of this section, the amount of fee shall
be that determined to be reasonable by the Contracting Officer. The
Contracting Officer shall, at a minimum, apply the following guidelines
in determining the fee amount:
(1) The grant fee base shall include the estimated allowable cost of
direct salaries and wages and allocable fringe benefits. This fee base
shall exclude all other direct and indirect costs.
(2) The grant fee amount expressed as a percentage of the appropriate
fee base pursuant to paragraph (c)(1) of this section, shall not exceed
the percentage rate of fee that would result if a Federal agency
contracted for the same amount of salaries, wages, and allocable fringe
benefits under a cost reimbursement contract.
(3) Grant fee amounts, determined pursuant to paragraphs (c)(1) and
(c)(2) of this section, shall be appropriately reduced when:
(i) Advance payments are provided; and/or
(ii) Title to property acquired with DOE grant funds vests in the
grantee (10 CFR part 600).
(d) Notwithstanding 10 CFR part 600, any fee awarded shall be a fixed
fee and shall be payable on an annual basis in proportion to the work
completed, as determined by the Contracting Officer, upon satisfactory
submission and acceptance by DOE of the annual technical progress
report. If the project period is shortened due to termination, or the
project period is not fully funded, the fee shall be reduced by an
appropriate amount.
605.16 -- 605.17 (Reserved)
10 CFR 605.18 National security.
Activities under a Special Research Grant shall not involve
classified information (i.e., Restricted Data, formerly Restricted Data,
National Security Information). However, if in the opinion of the
grantee or DOE such involvement becomes expected prior to the closeout
of the grant, the grantee or DOE shall notify the other in writing
immediately. If the grantee believes any information developed or
acquired may be classifiable, the grantee shall not provide the
potentially classifiable information to anyone, including the DOE
officials with whom the grantee normally communicates, except the
Director of Classification, and shall protect such information as if it
were classified until notified by DOE that a determination has been made
that it does not require such handling. Correspondence which includes
the specific information in question shall be sent by registered mail to
U.S. Department of Energy, Attn: Director of Classification, DP-32,
Washington, DC 20545. If the information is determined to be classified
the grantee may wish to discontinue the project in which case the
grantee and DOE shall terminate the grant by mutual agreement. If the
grant is to be terminated, all material deemed by DOE to be classified
shall be forwarded to DOE, in a manner specified by DOE, for proper
disposition. If the grantee and DOE wish to continue the grant, even
though classified information is involved, the grantee shall be required
to obtain both personnel and facility security clearances through the
Office of Safeguards and Security for Headquarters awarded grants, or
from the cognizant field office Division of Safeguards and Security for
grants obtained through DOE field organizations. Costs associated with
handling and protecting any such classified information shall be
negotiated at the time that the determination to proceed is made.
10 CFR 605.19 Reports.
(a) A grantee shall periodically report to DOE on the grantee's
progress in meeting the project objectives of the grant award. The
following types of reports shall be used:
(1) Performance reports. Performance reports shall include:
(i) A description of the research carried out during the reporting
period including a comparison of the grantee's accomplishments with the
objectives established for that reporting period.
(ii) If applicable, reasons why established objectives were not met;
(iii)Where there are significant deviations from the estimates in the
budget, the rationale for increases or decreases in the time expended on
the project by the principal investigator or other researchers; and
(iv) Other pertinent information, including, when appropriate,
reports of travel, both foreign and domestic, analysis and explanation
of cost overruns (underruns) or high (low) unit costs. Annual
performance reports shall be submitted with any renewal or continuation
application if there is one; if not, they shall be submitted within 90
days after the end of the budget period covered by the report. For
budget periods exceeding twelve months, a performance report is also
required 90 days after the first 12 months of the budget period unless
waived by the Contracting Officer. If a report is part of a
continuation or renewal application it shall be bound separately.
(2) Notice of Energy R&D Project. A Notice of Energy R&D Project,
DOE Form 538, which summarizes the purpose and scope of the project,
must be submitted in accordance with the Distribution and Schedule of
Documents set forth at the end of this section. Copies of the form may
be obtained from the Contracting Officer.
(3) Special Reports. The grantee shall report the following events
to DOE as soon after they occur as possible:
(i) Problems, delays, or adverse conditions which will materially
affect the ability to attain project objectives, or prevent the meeting
of time schedules and goals. The report must describe the remedial
action the grantee has taken or plans to take and any action DOE should
take to alleviate the problems.
(ii) Favorable developments or events which enable meeting time
schedules and goals sooner or at less cost than anticipated or producing
more beneficial results than originally projected.
(4) Final report. A final report summarizing the entire
investigation must be submitted by the grantee within 90 days after the
project period ends or the grant is terminated. Satisfactory completion
of a grant will be contingent upon the receipt of this report. The
final report shall follow the outline agreed upon for the performance
reports, if any, or when a project has been renewed, the final report
may refer to previously submitted performance report for details and may
be a synopsis of the entire project. Manuscripts prepared for
publication should be appended.
(5) Financial status report (FSR) (OMB No. 0348-0039). The FSR is
required within 90 days after completion of each budget period; for
budget periods exceeding 12 months, an FSR is also required within 90
days after this first 12 months unless waived by the Contracting
Officer.
(b) DOE may extend the deadline date for any report if the grantee
submits a written request before the deadline which adequately justifies
an extension.
(c) A table summarizing the various types of reports, time for
submission, number of copies is set forth below. The schedule of
reports shall be as prescribed in this table, unless the award document
specifies otherwise. These reports shall be submitted by the grantee to
the awarding office.
(d) DOE review of grantee performance. DOE or its authorized
representatives may make site visits, at any reasonable time, to review
the project. DOE may provide such technical assistance as may be
requested.
(e) Subrecipient performance reporting. Grantees may place
performance reporting requirements on a subrecipient consistent with the
provisions of this section.
10 CFR 605.20 Dissemination of results.
(a) Grantees are encouraged to disseminate research results promptly
to the scientific community. DOE reserves the right to utilize, and
have others utilize, to the extent it deems appropriate, the reports
resulting from research grants.
(b) DOE may waive the technical reporting requirement of any
performance report set forth in 605.19(a), if the grantee submits to
DOE a copy of its own report which is published or accepted for
publication in a recognized scientific or technical journal and which
satisfies the information requirements of the program.
(c) Grantees are urged to publish results through normal publication
channels in accordance with the applicable provisions of 10 CFR part
600.
(d) The article shall include an acknowledgment that the research was
supported, in whole or in part, by a DOE grant, and specify the grant
number, but state that such support does not constitute an endorsement
by DOE of the views expressed in the article.
10 CFR 605.20 Pt. 605, App. A
This program supports basic science research efforts in a variety of
disciplines to broaden the energy supply and technology base of
knowledge. The major science divisions and their objectives are as
follows:
The primary objective of this program is to generate a base of
understanding of fundamental biological mechanisms in the areas of
botanical and microbiological sciences. This work serves as the
underpinning for DOE's efforts in biomass production of fuels and
chemicals, microbial conversions of biomass, and biological systems for
the conservation of energy.
This program has as its primary objectives: increased understanding
of basic chemical or physical phenomena which are likely to be important
to existing or future technological concepts for production or
conversion of energy; discovery of new phenomena bearing on chemical or
physical aspects of energy processes; elucidation of fundamentally new
general techniques for separation of energy-related mixtures or for the
chemical analysis of energy-related substances. Also included is a
study of the basic chemical and physical properties of the actinide
elements and their compounds. This program supports the operation of
the Stanford Synchrotron Radiation Laboratory and the production of a
broad variety of isotopically enriched research materials.
The goal of this program is to develop a quantitative, predictive
understanding of the energy-related aspects of geological, geophysical
and geochemical processes within the earth and in the solar-terrestrial
interface. This understanding and knowledge base is needed to provide
for long-range requirements of U.S. efforts in energy resources
recognition, evaluation, utilization, and their long-term environmental
implications. The program is stressing fundamental research related to
discovery and recovery of domestic oil and gas resources.
This program's objectives are: (1) To extend the body of knowledge
underlying current engineering practice in order to open new ways for
enhancing energy savings and production, prolonging useful equipment
life, and reducing costs while maintaining output and performance
quality; and (2) to broaden the technical and conceptual base for
solving future engineering problems in the energy technologies.
The objective of this program is to increase our understanding of
phenomena and properties important to materials behavior which will
contribute to meeting the needs of present and future energy
technologies. It is comprised of the subfields metallurgy, ceramics,
solid state physics, materials chemistry, and related disciplines where
the emphasis is on the science of materials.
The objective of this program is to support exploratory research on
novel concepts related to energy. The concepts may be in any field
related to energy. The research is usually aimed at establishing the
scientific feasibility of a concept and, where appropriate, also at
estimating its economic viability.
This program supports 90% of the U.S. effort in high energy and
nuclear physics. The objective of these programs are indicated below.
The primary objectives of this program are an understanding of the
interactions and structures of atomic nuclei and nuclear matter at the
most elementary level possible, and an understanding of the fundamental
forces of nature as manifested in nuclear matter.
The primary objectives of this program are to understand the nature
and relationships among the fundamental forces of nature and to
understand the ultimate structure of matter in terms of the properties
and interrelations of its basic constituents.
The goals of this research program are as follows:
Provide, through basic and applied research, the scientific
information required to identify, understand and anticipate the
long-term health and environmental consequences of energy use and
development.
Utilize the Department's unique resources to solve major scientific
problems in medicine and biology.
The goals of the program are accomplished through the effort of its
divisions, which are:
The objectives of this subprogram are to develop new concepts and
techniques for detecting and measuring hazardous physical and chemical
agents related to energy production; characterize the atmospheric
transport and chemical transformations of radionuclides and
energy-related chemical effluents in order to define pathways to human
exposure; determine the physical and chemical mechanisms of radiation
action in biological systems; and develop new instrumentation and
technology for biological and biomedical research.
The objectives of this subprogram are to identify the physical,
chemical, and biological processes that cycle nutrients and
energy-related materials through terrestrial and aquatic ecosystems,
including the coastal oceans; and to determine the resiliency of
ecosystems to natural and energy-related stresses. Fundamental research
in hydrological transport, mobility, and degradation of energy
substances at shallow depth will continue to receive increased
attention.
The objectives of this subprogram are to develop information in
experimental biological systems for estimating or predicting risks of
carcinogenesis, mutagenesis, and delayed toxicological effects
associated with human exposures to energy-related radiations and
chemicals; to define mechanisms involved in the induction of biological
damage following exposure to low levels of energy-related agents; to
support fundamental research on biomolecular structure, gene structure,
functions and control, genetic damage and repair, and cell
transformation and to create new tools and resources for characterizing
the molecular nature of the human genome.
Increased emphasis will be placed on developing technologies and
resources for characterization of the human genome and the utilization
of unique resources for the determination of biological structure.
The goals of this subprogram fall into two broad categories, human
health and nuclear medicine.
The objectives of the human health component are to ascertain by
epidemiologic and dosimetric methods and potential spectrum of risks to
human health related to energy generation and usage, operation of DOE
facilities, and nuclear medicine procedures, and to detect and measure
significant health effects in humans exposed to naturally occurring
radiation, primarily radon and its daughter products, and energy-related
chemicals. Increased emphasis in the future will be on the use of
biochemical, genetic, and molecular endpoints.
The nuclear medicine component is aimed at enhancing the beneficial
applications of radiation, radionuclides, and stable isotopes in the
diagnosis, study, and treatment of human diseases. This includes the
development of new techniques for stable and radioactive isotope
production, labeled pharmaceuticals, imaging devices, and radiation beam
applications for the improved diagnosis and therapy of human diseases or
the study of human physiological processes. Increased emphasis for the
future will be on the development of new isotopes and
radiopharmaceuticals for studies of human nutrition, cardiac function,
neurological disorders, and disease control.
This program's goal is to develop a sound, quantitative atmospheric
carbon dioxide knowledge base to aid in energy policy decision making.
This goal involves the following objectives: improve knowledge of the
carbon cycle; improve estimates of future atmospheric carbon dioxide;
improve understanding of the effects of atmospheric carbon dioxide on
climate; improve understanding of the direct carbon dioxide effects on
productivity of nature and agricultural systems: develop and verify
methods for the detection of climate change due to increasing
atmospheric carbon dioxide; identify, define and quantify indirect
effects; define possible options for mitigating long-term consequences
of a higher CO2 atmosphere.
The magnetic fusion energy program is an applied research and
development program whose goal is to develop the scientific and
technological information required to design and construct magnetic
fusion energy systems. This goal is pursued by three divisions, whose
major functions are as listed below.
This Division seeks to develop that body of physics knowledge which
permits advancement of the fusion program on a sound basis. APP
research programs provide: (1) The theoretical understanding of fusion
plasmas necessary for interpreting results from present experiments, and
the planning and design of future confinement devices; (2) the data on
plasma properties, atomic physics and new diagnostic techniques for
operational support of confinement experiments; and (3) critical tests
and evaluation of promising alternate fusion concepts that may lead to
more economic fusion reactor systems.
This Division has as its primary objective the conduct of research
efforts to investigate and resolve basic physics issues associated with
medium- to large-scale confinement devices. These devices are used to
experimentally explore the limits of specific confinement concepts as
well as to study associated physical phenomena. Specific areas of
interest include: The production of increased plasma densities and
temperatures, the understanding of the physical laws governing plasma
energy transport and confinement scaling, equilibrium and stability of
high plasma pressure, the investigation of plasma interaction with
radio-frequency waves, and the study and control of particle transport
in the plasma.
This Division supports the research and development of the technology
necessary for the fabrication and operation of present and future plasma
and fusion devices. The program also pursues R&D and system studies
pertaining to critical feasibility issues of fusion technology and
development.
This office administers special purpose support programs that cut
across DOE program areas and in conjunction with this activity related
conferences and research and training initiatives are funded to further
these areas of interest.
The objective of this program is to support research efforts aimed at
strengthening university-based nuclear engineering programs. Specific
areas of basic and applied research of interest include: (1) Material
behavior in a radiation environment typical of advanced nuclear power
plants; (2) real-time instrumentation that identifies and applies
innovative measurement technologies in nuclear-related fields; (3)
advanced nuclear reactor concepts; (4) applied nuclear sciences that
address improvements in the applications of radiation and the
understanding of the interaction of radiation with matter; (5)
engineering science research applicable to advanced nuclear reactor
concepts, industry safety and reliability concerns; (6) neutronics that
address improvements in reactor computational methodologies and
knowledge of the basic fission processes; and (7) nuclear thermal
hydraulics that address improvements of models and analysis of thermal
hydraulic behavior in an advanced nuclear reactor system.
The goal of this program is to advance the understanding of the
fundamental concepts of mathematics, statistics, and computer science
underlying the complex mathematical models of the key physical processes
involved in the research and development programs in DOE. Broad
emphasis is given in three major categories: analytical and numerical
methods, information analysis techniques, and advanced computer
concepts.
10 CFR 605.20 SUBCHAPTER I -- SALES REGULATION
10 CFR 605.20 PART 622 -- CONTRACTUAL PROVISIONS
10 CFR 622.103 Dispute provisions.
(a) Except as provided in paragraph (b) of this section, all DOE
contracts for the sale of personal property to any organization outside
the U.S. Government shall include a Disputes clause which provides for:
(1) Binding final decisions by the Contracting Officer, subject to
appeal;
(2) Appeal rights pursuant to the Contract Disputes Act of 1978;
(3) Continuation of performance by the contractor at the direction of
the contracting officer pending final resolution of the dispute.
(b) Exceptions:
(1) The provisions of this part shall not apply to contracts for sale
of electric power by the Power Marketing Administrations;
(2) The Secretary may exempt a contract or class of contracts from
this requirement upon determination that it would not be in the public
interest in an individual contract or class of contracts with a foreign
government, or agency thereof, or international organization, or
subsidiary body thereof, to include the Disputes clause, as permitted by
section 3 of the Contract Disputes Act of 1978.
(c) The Energy Board of Contract Appeals (EBCA) has cognizance over
disputes relating to DOE Sales contracts.
(d) The Disputes clause in 624.102-4 shall be used in accordance
with this 622.103.
(Sec. 644, Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 599 (42 U.S.C. 7254))
(46 FR 34559, July 2, 1981)
10 CFR 622.103 Pt. 624
10 CFR 622.103 PART 624 -- CONTRACT CLAUSES
10 CFR 624.102-4 Disputes.
The following clause shall be used in accordance with the provisions
of 622.103:
10 CFR 624.102-4 Disputes
(a) This contract is subject to the Contract Disputes Act of 1978 (41
U.S.C. 601 et seq.). If a dispute arises relating to the contract, the
purchaser may submit a claim to the Contracting Officer who shall issue
a written decision on the dispute.
(b) Claim means:
(1) A written request submitted to the Contracting Officer;
(2) For payment of money, adjustment of contract terms, or other
relief;
(3) Which is in dispute or remains unresolved after a reasonable time
for its review and disposition by the Government; and
(4) For which a Contracting Officer's decision is demanded.
(c) In the case of disputed requests or amendments to such requests
for payment exceeding $50,000, or with any amendment causing the total
request in dispute to exceed $50,000, the purchaser shall certify, at
the time of submission of a claim, as follows:
I certify that the claim is made in good faith, that the supporting
data is accurate and complete to the best of my knowledge and belief,
and that the amount requested accurately reflects the contract
adjustment for which the Purchaser believes the Government is liable.
(Purchaser's Name)
(Title)
(d) The Government shall pay the Purchaser interest.
(1) On the amount found due to the purchaser and unpaid on claims
submitted under this clause;
(2) At the rates fixed by the Secretary of the Treasury;
(3) From the date the amount is due until the Government makes
payment.
(e) The purchaser shall pay the Government interest:
(1) On the amount found due to the Government and unpaid on claims
submitted under this clause;
(2) At the rates fixed by the Department of Energy for the payment of
interest on past due accounts;
(3) From the date the amount is due until the purchaser makes
payment.
(f) The decision of the Contracting Officer shall be final and
conclusive and not subject to review by any forum, tribunal, or
Government agency unless an appeal or action is timely commenced within
the times specified by the Contract Disputes Act of 1978.
(g) The purchaser shall comply with any decision of the Contracting
Officer and at the direction of the Contracting Officer shall proceed
diligently with performance of this contract pending final resolution of
any request for relief, claim, appeal, or action related to this
contract.
(Sec. 644, Department of Energy Organization Act, Pub. L. 95-91, 91
Stat. 599 (42 U.S.C. 7254))
(46 FR 34559, July 2, 1981)
10 CFR 624.102-4 Pt. 625
10 CFR 624.102-4 PART 625 -- PRICE COMPETITIVE SALE OF STRATEGIC
PETROLEUM RESERVE PETROLEUM
Sec.
625.1 Application and purpose.
625.2 Definitions.
625.3 Standard sales provisions.
625.4 Publication of the Standard Sales Provisions.
625.5 Failure to perform in accordance with SPR Contracts of Sale.
Appendix A to Part 625 -- Standard Sales Provisions
Authority: 15 U.S.C. 761; 42 U.S.C. 7101; 42 U.S.C. 6201.
Source: 48 FR 56541, Dec. 21, 1983, unless otherwise noted.
10 CFR 625.1 Application and purpose.
This part shall apply to all price competitive sales of SPR petroleum
by DOE. This section provides the rules for developing standard
contract terms and conditions and financial and performance
responsibility measures; notifying potential purchasers of those terms,
conditions and measures; choosing applicable terms, conditions and
measures for each sale of SPR petroleum; and notifying potential
purchasers of which terms, conditions and measures will be applicable to
particular sales of SPR petroleum.
10 CFR 625.2 Definitions.
(a) DOE. DOE is the Department of Energy established by Pub. L.
95-91 (42 U.S.C. 7101 et seq.) and any component thereof including the
SPR Office.
(b) Notice of Sale. The Notice of Sale is the document announcing
the sale of SPR petroleum, the amount, type and location of the
petroleum being sold, the delivery period and the procedures for
submitting offers. The Notice of Sale will specify which contractual
provisions and financial and performance responsibility measures are
applicable to that particular sale of petroleum, and will provide other
pertinent information.
(c) Petroleum. Petroleum means crude oil, residual fuel oil or any
refined petroleum product (including any natural gas liquid and any
natural gas liquid product) owned or contracted for by DOE and in
storage in any permanent SPR facility, or temporarily stored in other
storage facilities, or in transit to such facilities (including
petroleum under contract but not yet delivered to a loading terminal).
(d) Price Competitive Sale. A price competitive sale of SPR
petroleum is one in which contract awards are made to those responsive,
responsible persons offering the highest prices; sales conducted
pursuant to rules adopted under section 161(e) of the Energy Policy and
Conservation Act (EPCA), Pub. L. 94-163 (42 U.S.C. 6201 et seq.), are
not price competitive sales.
(e) Purchaser. A purchaser is any person or entity (including a
Government agency) which enters into a contract with DOE to purchase SPR
petroleum.
(f) SPR. SPR is the Strategic Petroleum Reserve, that program of the
Department of Energy established by Title I, part B of EPCA.
(g) Standard Sales Provisions. The Standard Sales Provisions are a
set of terms and conditions of sale, which may contain or describe
financial and performance responsibility measures, for petroleum sold
from the SPR under this part.
10 CFR 625.3 Standard sales provisions.
(a) Contents. The Standards Sales Provisions shall contain contract
clauses which may be applicable to price competitive sales of SPR
petroleum, including terms and conditions of sale, and purchaser
financial and performance responsibility measures, or descriptions
thereof. At his discretion, the Secretary or his designee may specify
in a Notice of Sale which of such terms and conditions, or financial and
performance responsibility measures, shall apply to a particular sale of
SPR petroleum; and, he may specify any revisions in such terms,
conditions and measures, and any additional terms, conditions and
measures which shall be applicable to that sale, that are consistent
with the SPR Drawdown Plan adopted on December 1, 1982.
(b) Acceptance by offerors. All offerors must, as part of their
offers for SPR petroleum in response to a Notice of Sale, agree without
exception to all contractual provisions and financial and performance
responsibility measures which the Notice of Sale makes applicable to the
particular sale.
(c) Award of contracts. No contract for the sale of SPR petroleum
may be awarded to any offeror who has not unconditionally agreed to all
contractual provisions and financial and performance responsibility
measures which the Notice of Sale makes applicable to the particular
sale.
(d) Contract documents. The terms and conditions which the Notice of
Sale makes applicable to a particular sale may be incorporated into a
contract for the sale of SPR petroleum by reference to the Notice of
Sale.
10 CFR 625.4 Publication of the Standard Sales Provisions.
(a) Publication. The Standard Sales Provisions shall be published in
the Federal Register and in the Code of Federal Regulations as an
appendix to this rule.
(b) Revisions of the Standard Sales Provisions. The Standard Sales
Provisions shall be reviewed periodically and republished in the Federal
Register, with any revisions.
(c) Notification of applicable clauses. The Notice of Sale will
specify, by referencing the Federal Register and the Code of Federal
Regulations in which the latest version of the Standard Sales Provisions
was published, which contractual terms and conditions and contractor
financial and performance responsibility measures contained or described
therein are applicable to that particular sale.
10 CFR 625.5 Failure to perform in accordance with SPR Contracts of
Sale.
(a) Ineligibility. In addition to any remedies available to the
Government under the Contract of Sale, in the event that a purchaser
fails to perform in accordance with applicable SPR petroleum sale
contractual provisions, and such failure is not excused by those
provisions, the Headquarters Senior Procurement Official, at his
discretion, may make such purchaser ineligible for future awards of SPR
petroleum sales contracts.
(b) Determination of ineligibility. No purchaser shall be made
ineligible for the award of any SPR sales contract prior to notice and
opportunity to respond in accordance with the requirements of this
subsection.
(1) Upon the determination that a purchaser is to be considered for
ineligibility, the purchaser shall be sent by certified mail return
receipt requested, the following:
(i) Notification that the Headquarters Senior Procurement Official is
considering making the purchaser ineligible for future awards;
(ii) Identification of the SPR sales contract which the purchaser
failed to comply with, along with a brief description of the events and
circumstances relating to such failure;
(iii) Advice that the purchaser may submit in writing for
consideration by the Headquarters Senior Procurement Official in
determining whether or not to impose ineligibility on the purchaser, any
information or argument in opposition to the ineligibility; and
(iv) Advice that such information or argument in opposition to the
ineligibility must be submitted within a certain time in order to be
considered by the Headquarters Senior Procurement Official, such time to
be not less than 21 days.
(2) After elapse of the time period established under paragraph
(b)(1) of this section for receipt of the purchaser's response, the
Headquarters Senior Procurement Official, at his discretion, and after
consideration of the purchaser's written response, if any, may make the
purchaser ineligible for future awards of SPR petroleum sales contracts.
Such ineligibility shall continue for the time period determined by the
Headquarters Senior Procurement Official, as appropriate under the
circumstances.
(3) The purchaser shall be notified of the Headquarters Senior
Procurement Official's decision.
(c) Reconsideration. Any purchaser who has been excluded from
participating in any SPR sale under paragraph (a) may request that the
Headquarters Senior Procurement Offical reconsider the purchaser's
ineligibility. The Headquarters Senior Procurement Official, at his
discretion, may reinstate any such purchaser to eligibility for future
competitive sales.