approves a higher expenditure per dwelling unit.

§ 440.19 Standards and techniques for weatherization.

(a) Only weatherization materials which meet or exceed standards prescribed in Appendix A shall be purchased with funds provided under this part.

(b) A weatherization project shall utilize the approaches to weatherization contained in Project Retro-Tech, Conservation Paper Number 28, as revised July 1979, including the energy conservation techniques therein.

§ 440.20 Eligible dwelling units.

No dwelling unit shall be eligible for weatherization assistance under this part unless it will be occupied in accordance with the provisions of § 440.15(b)(2)(ii) or is occupied by a family unit

(a) 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; or

(b) 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 12-month period preceding the determination of eligibility for weatherization assistance.

§ 440.21 Oversight, training, and technical

assistance.

(a) The Secretary and the appropriate Regional Representative, in coordination with the Director, 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 insure 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 Regional Representative, the Comptroller General of the United States, and for a weatherization proj

ect carried out by a CAA, the Director or any of their duly authorized representatives, shall have access for the purpose of audit and examination to any books, documents, papers, information, and records of any weatherization project receiving financial assistance under the Act.

(d) Each grantee shall conduct, on an annual basis, an audit of the pertinent records of any sub-grantee receiving financial assistance under this part.

(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 sub-grantee.

§ 440.22 Recordkeeping.

Each grantee or sub-grantee receiving Federal financial assistance under this part shall keep such records as DOE shall require, including records which fully disclose the the amount and disposition by each grantee and sub-grantee of the funds received, the total cost of a weatherization project or the total expenditure to implement the State plan for which such 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 Federal Management Circular 74-7 and any further requirements of this regulation or which DOE may otherwise establish under the terms and conditions of a grant.

§ 440.23 Reports.

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 Director under this part.

§ 440.30 Administrative review.

(a) If a timely application submitted by a State fails to meet the require

ments of this part and the Regional Representative intends to deny the application, the Regional Representative shall return the application to the State together with a written statement of reasons therefore.

(b) The State will have a reasonable period, as determined by the Regional Representative, to amend its application and to resubmit it by a specified date for reconsideration.

(c) The Regional Representative shall give notice to the applicant in the event that the Regional Representative determines that

(1) Any application resubmitted by a State in accordance with paragraph (b) of this section fails to comply with this regulation;

(2) Any application returned to a State pursuant to paragraph (a) of this section is not timely resubmitted as provided in paragraph (b); or

(3) The Regional Representative intends to deny the application of a local applicant.

(d) The Regional Representative shall give notice to a grantee in the event the Regional Representative finds there is a failure by the grantee to comply substantially with the provisions of the Act or this part.

(e) The Regional Representative shall issue such notice in the form of written notice mailed by registered mail, return receipt requested, to the State, local applicant grantee and other interested parties, including

(1) A statement of reasons for a determination referred to in paragraph (c) or (d) of this section which the Regional Representative intends to make including an explanation whether any amendments or other actions would result in compliance with the regulation;

(2) The date, place, and time of public hearing to be held by the Regional Representative one subject of which shall be the proposed determination, which hearing shall in no event be later than 15 working days after the receipt of such notice; and

(3) The manner in which views may be presented.

(f) A party which has received notice under paragraph (e) of this section

(1) May make a written submission of its views with supporting data and

arguments to the Regional Representative on or prior to the date of the public hearing; and

(2) Shall be afforded an opportunity to make an oral presentation at the public hearing.

(g) The Regional Representative shall consider all relevant views and data including arguments and other submissions made at the public hearing. The Regional Representative shall make, not later than 5 working days after the public hearing, a final determination in writing stating the reasons for the determination.

(h) A State or local applicant or grantee may appeal in writing from an adverse final determination made by the Regional Representative under paragraph (g) of this section to the Secretary not later than 10 working days after receipt of the Regional Representative's determination. The Secretary shall have 21 working days to consider the appeal and take any action with respect thereto which he deems appropriate. Any action taken by the Secretary shall be the final determination of DOE. If no action has been taken by the Secretary after the expiration of the 21-working-day period, the Secretary shall be deemed to have approved the determination of the Regional Representative.

(i) Anything herein to the contrary notwithstanding, the public hearing referred to in subparagraph (e)(2) of this section may be combined, at the discretion of the Regional Representative, with any other public hearing in the State conducted pursuant to this part.

(j) Upon issuance of the notice provided in paragraph (d), the Regional Representative may suspend payments to any grantee pending a final determination. If the Regional Representative makes a final determination of failure to comply, the grantee will be ineligible to participate in the program under this part unless and until the Regional Representative is satisfied that there is no longer a failure to comply.

Sec.

445.32 Criteria for the exemption of corpo

rations.

445.33 Criteria for adequate reporting pro

grams.

445.34 Request to be an exempt corporation.

445.35 Request to be a sponsor with an adequate reporting program. 445.36 Filing deadline and address. 445.37 Determination of exempt corporations and adequate reporting programs. 445.38 Failure to report.

Subpart E-Voluntary Energy Efficiency Imprevement 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.

Subpart A-General Provisions

§ 445.1 Purpose 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 re

"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.

a

"Identified corporation" means 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, nonwoven 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".