each Nonregulated Utility Plan must meet all the requirements for State Plans in Subpart C.

(2) For purposes of this section, all references in Subpart C to—

(i) Covered utilities apply to nonregulated utilities subject to this subpart;

(ii) A State Plan apply to a Nonregulated Utility Plan;

(iii) A State (as a governmental entity, other than references to State laws or regulations) or any State Agency or officer apply to the nonregulated utility submitting the Plan;

(iv) A State (as a geographic area) apply to the nonregulated utility's service area.

(3) The requirements concerning covered building heating suppliers in Subpart C do not apply.

(b) Reporting. Each nonregulated utility shall submit annually a written report to the Assistant Secretary beginning not later than July 1, following approval of the Nonregulated Utility Plan, through July 1, 1990, regarding the year's implementation of the nonregulated utility's CACS Program through the preceding April 1. The report must contain the information required under § 458.314(b).

§ 458.406 Exemption procedures.

The exemption procedures of § 458.207 and § 458.302(d) apply to covered nonregulated utilities. For purposes of this section, all references in § 458.207 and § 458.302(d)—

(a) To a State Plan apply to a Nonregulated Utility Plan; and

(b) To a State Regulatory Authority apply to the Governor.

Subpart E-Federal Standby Authority and Enforcement Provisions

§ 458.501 Scope.

This subpart specifies the procedures to be followed to ensure that eligible customers receive the services of the CACS Program when a State or nonregulated utility does not submit an acceptable State Plan or Nonregulated Utility Plan within the necessary time or fails to implement adequately an approved plan.

§ 458.502 Conditions under which standby authority shall be invoked.

The Assistant Secretary shall invoke standby authority if—

(a) A State fails to submit a State Plan meeting the requirements of Subparts B and C of this part within 270 days after the effective date of this part or within such additional period as the Assistant Secretary allows pursuant to § 458.204 (b) or (d);

(b) A nonregulated utility fails to submit a Nonregulated Utility Plan meeting the requirements of Subpart D of this Part within 270 days after the effective date of this part or within such additional period as the Assistant Secretary allows pursuant to § 458.404 (a) or (c);

(c) The Assistant Secretary determines after notice and opportunity for a public hearing that an approved State Plan is not being implemented adequately in a State; or

(d) The Assistant Secretary determines after notice and opportunity for a public hearing that an approved Nonregulated Utility Plan is not being adequately implemented by a covered nonregulated utility.

8 458.503 Use of standby authority in lieu of State Plans.

When the Assistant Secretary determines that a State has failed either to submit, or to implement adequately, a State Plan

(a) The Assistant Secretary shall promulgate a CACS Plan which meets the requirements of Subparts 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 CACS 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 has an approved plan which includes nonregulated utilities, the Assistant Secretary shall take the actions described in §§ 458.504 (a) and (b) with respect to such nonregulated utilities.

§ 458.504 Standby authority for nonregulated utilities.

When a nonregulated utility has failed either to submit, or to implement adequately, a Nonregulated Utility Plan, as determined by the Assistant Secretary in accordance with §§ 458.502 (b) or (d)—

(a) The Assistant Secretary shall, by order, require the covered nonregulated utility to promulgate a Nonregulated Utility Plan which meets the requirements of Subpart D of this part; and

(b) The Assistant Secretary shall, by order, require the nonregulated utility to carry our a CACS 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.

§ 458.505 Failure to comply with orders.

If the Secretary determines that any covered utility, which has been ordered pursuant to §§ 458.503(b) or 458.504 to carry out a CACS program, or to implement a Nonregulated Utility Plan, has failed to comply with the order, the Secretary may file a petition in the appropriate United States district court to enjoin the utility from violating the order.

§ 458.506 Enforcement provisions; assessment of civil penalties.

or

(a) Any covered utility which violates any requirement of a plan promulgated under §§ 458.503(a) 458.504(a), or which fails to comply with an order under §§ 458.503(b), or 458.504, within 90 days from the issuance of such order, shall be subject to a civil penalty of not more than $25,000 for each violation.

(b) Each day that the violation continues shall be considered a separate violation.

(c) Any civil penalty under this section shall be assessed by an order of the Assistant Secretary.

§ 458.507 Election of review procedures.

Before issuing an order assessing a civil penalty against any person under this section, the Assistant Secretary shall provide notice of the proposed penalty to the person. The notice of proposed penalty must 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 § 458.509 apply, in lieu of the procedures in § 458.508 with respect to the assessment of a civil penalty.

§ 458.508 Hearing before administrative law judge and review in court of appeals.

(a) Unless the election described in § 458.507 is made within 30 calendar days after receipt of the notice given under § 458.507, the Assistant Secretary shall assess the penalty, by order, after a determination of violation has been made on the record. The 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 must include the administrative law judge's findings and the basis for such assessment.

(b) Any person against whom a civil penalty is assessed under this paragraph 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 proceeding to the Assistant Secretary for such further action as the court may direct.

§ 458.509 Assessment by assistant secretary and de novo review in district court.

(a) In any case where the procedures of this section have been elected, 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 § 458.507.

(b) If the civil penalty assessed by order under paragraph (a) of this section has not been paid within 60 calendar days after the assessment order is 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.

(c) Any election to have paragrapı (a) of this section apply may not be revoked, except with the consent of the Assistant Secretary.

§ 458.510 Recovery of penalty.

If any person fails to pay an assessment of a civil penalty after it has become a final and unappealable order under § 458.508 of this section, or after the appropriate district court has entered final judgment in favor of the Assistant Secretary under § 458.509 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.

APPENDIX I TO PART 458: PROGRAM
MEASURE APPLICABILITY CRITERIA

I. A program measure is applicable in a building if:

(a) The measure is not already present in good condition and the potential exists to save energy and/or reduce energy demand in the building by installing it. A replacement measure is applicable only if a less efficient device performing the same function, which is more than 5 years old, is already present in the building.

(b) Installation of the measure is not a violation of Federal, State or local law or regulations.

II. Energy recovery systems (when waste heat from an air conditioner is used to assist in heating water) are applicable if:

• The building uses at least 50 gallons of hot water per day;

• The building is located in an area with more than 2000 cooling degree days.

III. Furnace flue opening modifications are applicable if the furnace combustion air is taken from a conditioned area.

IV. Ceiling insulation is applicable if the differential between the existing insulation and the insulation level recommended by the State Plan exceeds the differential established by the State Plan.

V. Lighting system modification to use daylighting is applicable if any electric lighting fixtures are located within 15 feet of an existing window or skylight in a commercial building or in common areas of an apartment building.

VI. Passive Solar heating thermosyphon air systems are applicable if the building has a south-facing (±45° of true south) wall free of a major obstruction to sunshine during the heating season.

VII. Solar domestic hot water systems are applicable if the building consumes more than 80 gallons of hot water per day and has access to a site clear of major obstructions to solar radiation which allows solar collectors to be oriented ±45° of true south.

VIII. Solaria/sunspace systems are applicable to an apartment building if it has existing balconies, patios or available adjacent ground area on the south-facing (±45° of true south) wall. Solaria/sunspace systems are not applicable to commercial buildings.

IX. Solar swimming pool heater replacements are applicable only for apartment buildings and only if the pool uses electricity or other nonrenewable energy for heating.

X. Window heat gain retardants are applicable to buildings which have glass on the south, east or west sides if they are exposed to sunlight.

XI. Pipe and duct insulation is applicable to hot water pipes and to heating and cooling ducts which extend through unconditioned spaces.

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.

§ 459.101 Purpose 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.

§ 459.102 Availability of financial assist

ance.

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.

§ 459.103 Award 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.

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.

§ 463.1 Purpose 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.

§ 463.2 Definitions.

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.

§ 463.3 Reporting 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]