(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 on 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;

(1) 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);

(m) 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);

(n) The procedures for State management, monitoring and evaluation of technical assistance programs and energy conservation measures receiving financial assistance under this part;

(0) 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;

(p) 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 pro

grams.

(q) 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.

§ 455.91 Submission 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

(b) The Secretary shall notify each Governor of the total amount allocated for grants within the State for any grant program cycle—

(i) For schools and hospitals, the allocation amount shall be for technical assistance programs, together with any limitation placed on technical asand energy conservation

§ 455.92 State 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.

measures; and

(ii) 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 ten 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 § 455.71(e).

§ 455.101 Allocation formulas.

with

(a) Financial assistance for conducting technical assistance programs for units of local government and public care institutions shall be allocated among the State 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 solar and other renewable resource measures, for 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, Weighed by Population: and "State, Regional and National Monthly and Seasonal Cooling Degree Days, Weighted by Population;"

(6) NPC is the summation of the (SP) (SC) numerators for all States.

[46 FR 27869, May 21, 1981, as amended at 47 FR 15766, Apr. 13, 1982]

§ 455.102 Reallocation 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 ninety 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

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.

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 I 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 Subtitle B of Title V of the Energy Security Act, Pub. L. 96-294, 94 Stat. 611 et seq.; Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565 et seq. (42 U.S.C. 7101 et seq.).

SOURCE: 47 FR 27774, June 25, 1982, unless otherwise noted.

Subpart A-General Provisions and Definitions

§ 456.101 Purpose and scope.

This part contains the regulations of the Residential Conservation Service (RCS) Program. This program is mandated by 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), Pub. L. 96-294.

§ 456.102 Petitions 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, D.C. 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.

an

(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 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.

§ 456.103 Appeals and other relief.

(a) Any person seeking relief from the application of this rule 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 Gov

ernor.

(b) Any person aggrieved by any order, finding, or determination made under § 456.102, §§ 456.502 through 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.

§ 456.104 List 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.

For purposes of this part

Assistant Secretary. The term "Assistant Secretary" means the Assistant Secretary for Conservation and Renewable Energy of the U.S. Department of Energy.

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.

Eligible Customer. The term "eligible customer" means a person who both

(1) Owns or occupies a residential building or dwelling unit therein (except that 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 purposes of the common area until such time as further rules are issued pursuant to this Part); and

(2) Receives a fuel bill from a covered utility or participating home