Title 10—Energy--Volume 5

§ 140.1 Purpose.

The regulations in this part are issued to provide appropriate procedures and requirements for determining:

(a) The financial protection required of licensees and for the indemnification and limitation of liability of certain licensees and other persons pursuant to section 170 of the Atomic Energy Act of 1954, as amended; and

(b) The liability insurance required of uranium enrichment facility licensees pursuant to section 193 of the Atomic Energy Act of 1954, as amended.

[57 FR 18394, Apr. 30, 1992]

§ 140.2 Scope.

(a) The regulations in this part apply:

(1) To each person who is an applicant for or holder of a license issued under 10 CFR part 50, 52, 53, or 54 to operate a nuclear reactor; and

(2) With respect to an extraordinary nuclear occurrence, to each person who is an applicant for or holder of a license to operate a production facility or a utilization facility (including an operating license issued under part 50 or part 53 of this chapter and a combined license under part 52 or part 53 of this chapter), and to other persons indemnified with respect to the involved facilities.

(3) To each person licensed pursuant to part 70 of this chapter to possess and use plutonium in a plutonium processing and fuel fabrication plant.

(4) To each person licensed pursuant to parts 40 and 70 of this chapter to construct and operate a uranium enrichment facility.

(b)(1) Subpart B of this part does not apply to any person subject to subparts C or D of this part. Subpart C of this part applies only to persons found by the Commission to be Federal agencies. Subpart D of this part applies only to persons found by the Commission to be nonprofit educational institutions with respect to licenses and applications for licenses for the conduct of educational activities.

(2) Any applicant or licensee subject to this part may apply for a finding that such applicant or licensee is subject to the provisions of subparts C or D of this part. The application should state the grounds for the requested finding. Any application for a finding pursuant to this paragraph may be included in an application for a license.

(c) Subpart E of this part sets forth the procedures the Commission will follow and the criteria the Commission will apply in making a determination as to whether or not there has been an extraordinary nuclear occurrence. The form of nuclear energy liability policy for facilities (appendix A) and the forms of indemnity agreements with licensees (appendices B, C, D, and E) include provisions requiring the waiver of certain defenses with respect to an extraordinary nuclear occurrence. These provisions and subpart E are incorporated in this part pursuant to Pub. L. 89-645 (80 Stat. 891). They provide additional assurance of prompt compensation under available indemnity and underlying financial protection for injury or damage resulting from the hazardous properties of radioactive materials or radiation, and they in no way detract from the protection to the public otherwise provided under this part.

[25 FR 2944, Apr. 7, 1960, as amended at 33 FR 15998, Oct. 31, 1968; 42 FR 48, Jan. 3, 1977; 56 FR 64980, Dec. 13, 1991; 57 FR 18394, Apr. 30, 1992; 72 FR 49564, Aug. 28, 2007; 83 FR 30288, June 28, 2018; 91 FR 15878, Mar. 30, 2026]

§ 140.3 Definitions.

As used in this part:

Act means the Atomic Energy Act of 1954 (68 Stat. 919) including any amendments thereto.

Commission means the Nuclear Regulatory Commission or its duly authorized representatives.

Department means the Department of Energy established by the Department of Energy Organization Act (Pub. L. 95-91, 91 Stat. 565, 42 U.S.C. 7101 et seq.), to the extent that the Department, or its duly authorized representatives, exercises functions formerly vested in the U.S. Atomic Energy Commission, its Chairman, members, officers and components and transferred to the U.S. Energy Research and Development Administration and to the Administrator thereof pursuant to sections 104 (b), (c) and (d) of the Energy Reorganization Act of 1974 (Pub. L. 93-438, 88 Stat. 1233 at 1237, 42 U.S.C. 5814) and retransferred to the Secretary of Energy pursuant to section 301(a) of the Department of Energy Organization Act (Pub. L. 95-91, 91 Stat. 565 at 577-578, 42 U.S.C. 7151).

Federal agency means a Government agency such that any liability in tort based on the activities of such agency would be satisfied by funds appropriated by the Congress and paid out of the United States Treasury.

Financial protection means the ability to respond in damages for public liability and to meet the cost of investigating and defending claims and settling suits for such damages.

Government agency means any executive department, commission, independent establishment, corporation, wholly or partly owned by the United States of America which is an instrumentality of the United States, or any board, bureau, division, service, office, officer, authority, administration, or other establishment in the executive branch of the Government.

Nuclear reactor means any apparatus, other than an atomic weapon, designed or used to sustain nuclear fission in a self-supporting chain reaction.

Person means:

(1) Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, Government agency other than the Commission or the Department, except that the Department shall be considered a person within the meaning of the regulations in this part to the extent that its facilities and activities are subject to the licensing and related regulatory authority of the Commission pursuant to section 202 of the Energy Reorganization Act of 1974 (88 Stat. 1244), any State or any political subdivision thereof, or any political entity within a State, any foreign government or nation or any political subdivision of any such government or nation, or other entity; and

(2) Any legal successor, representative, agent, or agency of the foregoing.

Plutonium processing and fuel fabrication plant means a plant in which the following operations or activities are conducted:

(1) Operations for manufacture of reactor fuel containing plutonium, where the license or licenses authorize the possession of either five or more kilograms of plutonium, excluding that contained in sealed sources and welded or otherwise sealed unirradiated or irradiated fuel rods, at the site of the plant or authorize the processing of one or more kilograms of plutonium, excluding that contained in sealed sources and welded or otherwise sealed unirradiated or irradiated fuel rods, at the plant, including any of the following processes:

(i) Preparation of fuel material;

(ii) Formation of fuel material into desired shapes;

(iii) Application of protective cladding;

(iv) Recovery of scrap material; and

(v) Storage associated with such operations; or

(2) Research and development activities involving any of the operations described in paragraph (1) of this definition, except for research and development activities where the operator is licensed to possess or use plutonium in amounts less than those specified in paragraph (1).

Source material means source material as defined in the regulations contained in part 40 of this chapter.

Special nuclear material means:

(1) Plutonium, uranium 233, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Commission, pursuant to the provisions of section 51 of the Act, determines to be special nuclear material, but does not include source material; or

(2) Any material artificially enriched by any of the foregoing, but does not include source material.

Testing facility is defined at 10 CFR 50.2.

Uranium enrichment facility means:

(1) Any facility used for separating the isotopes of uranium or enriching uranium in the isotope 235, except laboratory scale facilities designed or used for experimental or analytical purposes only; or

(2) Any equipment or device, or important component part especially designed for such equipment or device, capable of separating the isotopes of uranium or enriching uranium in the isotope 235.

[83 FR 30288, June 28, 2018, as amended at 89 FR 106253, Dec. 30, 2024]

§ 140.4 Interpretations.

Except as specifically authorized by the Commission in writing, no interpretations of the meaning of the regulations in this part by any officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized to be binding upon the Commission. This section shall cease to have effect on January 8, 2027, unless the NRC determines that the cessation deadline should be extended to a date not more than 5 years in the future after offering the public an opportunity to provide input on the costs and benefits of this section and considering that input. The NRC will publish a document in the Federal Register announcing its determination and revising or removing this section accordingly.

[25 FR 2944, Apr. 7, 1960, as amended at 90 FR 55634, Dec. 3, 2025]

§ 140.5 Communications.

Except where otherwise specified, all communications and reports concerning the regulations in this part and applications filed under them should be sent by mail addressed to: ATTN: Document Control Desk, Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information.

[73 FR 5726, Jan. 31, 2008, as amended at 74 FR 62686, Dec. 1, 2009; 79 FR 75742, Dec. 19, 2014; 80 FR 74982, Dec. 1, 2015; 84 FR 65646, Nov. 29, 2019]

§ 140.6 Reports.

(a) In the event of bodily injury or property damage arising out of or in connection with the possession or use of the radioactive material at the location or in the course of transportation, or in the event any claim is made therefor, written notice containing particulars sufficient to identify the licensee and reasonably obtainable information with respect to the time, place, and circumstances thereof, or to the nature of the claim, shall be furnished by or for the licensee to the Director, Office of Nuclear Reactor Regulation, or Director, Office of Nuclear Material Safety and Safeguards, as appropriate, using an appropriate method listed in § 140.5, but in any case as promptly as practicable. The terms the radioactive material, the location, and in the course of transportation as used in this section shall have the meanings defined in the applicable indemnity agreement between the licensee and the Commission.

(b) The Commission may require any person subject to this part to keep such records and furnish such reports to the Commission as the Commission deems necessary for the administration of the regulations in this part.

[25 FR 2944, Apr. 7, 1960, as amended at 41 FR 16447, Apr. 19, 1976; 42 FR 49, Jan. 3, 1977; 68 FR 58824, Oct. 10, 2003; 73 FR 5726, Jan. 31, 2008; 79 FR 75742, Dec. 19, 2014; 84 FR 65646, Nov. 29, 2019]

§ 140.7 Fees.

(a)(1) Each reactor licensee shall pay a fee to the Commission based on the following schedule:

(i) For indemnification from $500 million to $400 million inclusive, a fee of $30 per year per thousand kilowatts of thermal capacity authorized in the license;

(ii) For indemnification from $399 million to $300 million inclusive, a fee of $24 per year per thousand kilowatts of thermal capacity authorized in the license;

(iii) For indemnification from $299 million to $200 million inclusive, a fee of $18 per year per thousand kilowatts of thermal capacity authorized in the license;

(iv) For indemnification from $199 million to $100 million inclusive, a fee of $12 per year per thousand kilowatts of thermal capacity authorized in the license; and

(v) For indemnification from $99 million to $1 million inclusive, a fee of $6 per year per thousand kilowatts of thermal capacity authorized in the license.

(2) No fee will be less than $100 per annum for any nuclear reactor. This fee is for the period beginning with the date on which the applicable indemnity agreement is effective. The various levels of indemnity fees are set forth in the schedule in this paragraph. The amount of indemnification for determining indemnity fees will be computed by subtracting from the statutory limit of liability the amount of financial protection required of the licensee. In the case of licensees subject to the provision of § 140.11(a)(4), this total amount will be the amount, as determined by the Commission, of the financial protection available to licensees at the close of the calendar year preceding the one in which the fee becomes due. For those instances in which a certified financial statement is provided as a guarantee of payment of deferred premiums in accordance with § 140.21(e), a fee of $1,000 or the indemnity fee, whichever is greater, is required.

(b) Where a licensee manufactures a number of nuclear reactors each having a power level not exceeding 3 1/3 megawatts, for sale to others and operates them at the licensee's location temporarily prior to delivery, the licensee shall report to the Commission the maximum number of such reactors to be operated at that location at any one time. In such cases, the fee shall equal $100 multiplied by the number of reactors reported by the licensee. In the event the number of reactors operated at any one time exceed the estimate so reported, the licensee shall report the additional number of reactors to the Commission and additional charges will be made. If experience shows that less than the estimated number of reactors have been operated, appropriate adjustment in subsequent bills will be made by the Commission.

(c) Each person licensed to possess and use plutonium in a plutonium processing and fuel fabrication plant shall pay to the Commission a fee of $5,000 per year for indemnification. This fee is for the period beginning with the date on which the applicable indemnity agreement is effective.

(d) Indemnity fee payments are to made payable to the U.S. Nuclear Regulatory Commission. The payments are to be made in U.S. funds using the electronic payment methods accepted at www.Pay.gov. Federal agencies may also make payments by Intra-Governmental Payment and Collection (IPAC). Specific instructions for making payments may be obtained by contacting the Office of the Chief Financial Officer at 301-415-7554.

[25 FR 2944, Apr. 7, 1960, as amended at 42 FR 49, Jan. 3, 1977; 63 FR 31851, June 10, 1998; 89 FR 51811, June 20, 2024]

§ 140.8 Specific exemptions.

The Commission may, upon application of any interested person or upon its own initiative, grant such exemptions from the requirements of the regulations in this part as it determines are authorized by law and are otherwise in the public interest.

[34 FR 19546, Dec. 11, 1969]

§ 140.9 Modification of indemnity agreements.

The Commission will publish in the Federal Register a notice of its intent to enter into an indemnity agreement, or agreement amending an indemnity agreement, which contains provisions different from the form of the applicable indemnity agreement set forth in the appendices to this part, as such appendices may be amended from time to time.

[48 FR 1030, Jan. 10, 1983]

§ 140.9a Information collection requirements: OMB approval.

(a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in this part under control number 3150-0039.

(b) The approved information collection requirements contained in this part appear in §§ 140.6, 140.7, 140.8, 140.13, 140.13a, 140.13b, 140.15, 140.17, 140.20, and 140.21.

[62 FR 52190, Oct. 6, 1997, as amended at 85 FR 65664, Oct. 16, 2020]

§ 140.10 Scope.

This subpart applies to each person who is an applicant for or holder of a license issued under 10 CFR part 50, 53 or 54 to operate a nuclear reactor, or is the applicant for or holder of a combined license issued under 10 CFR part 52, 53, or 54, except licenses held by persons found by the Commission to be Federal agencies or nonprofit educational institutions licensed to conduct educational activities. This subpart also applies to persons licensed to possess and use plutonium in a plutonium processing and fuel fabrication plant.

[91 FR 15878, Mar. 30, 2026]

§ 140.11 Amounts of financial protection for certain reactors.

(a) Each licensee is required to have and maintain financial protection:

(1) In the amount of $1,000,000 for each nuclear reactor he is authorized to operate at a thermal power level not exceeding ten kilowatts;

(2) In the amount of $1,500,000 for each nuclear reactor he is authorized to operate at a thermal power level in excess of ten kilowatts but not in excess of one megawatt;

(3) In the amount of $2,500,000 for each nuclear reactor other than a testing facility or a reactor licensed under section 104b of the Act which he is authorized to operate at a thermal power level exceeding one megawatt but not in excess of ten megawatts; and

(4) In an amount equal to the sum of $500,000,000 and the amount available as secondary financial protection (in the form of private liability insurance available under an industry retrospective rating plan providing for deferred premium charges equal to the pro rata share of the aggregate public liability claims and costs, excluding costs payment of which is not authorized by section 170o.(1)(D) of the Act, in excess of that covered by primary financial protection) for each nuclear reactor which is licensed to operate and which is designed for the production of electrical energy and has a rated capacity of 100,000 electrical kilowatts or more: Provided, however, that under such a plan for deferred premium charges for each nuclear reactor that is licensed to operate, no more than $158,026,000 with respect to any nuclear incident (plus any surcharge assessed under subsection 170o.(1)(E) of the Act) and no more than $24,714,000 per incident within one calendar year shall be charged. Except that, where a person is authorized to operate a combination of 2 or more nuclear reactors located at a single site, each of which has a rated capacity of 100,000 or more electrical kilowatts but not more than 300,000 electrical kilowatts with a combined rated capacity of not more than 1,300,000 electrical kilowatts, each such combination of reactors shall be considered to be a single nuclear reactor for the sole purpose of assessing the applicable financial protection required under this section.

(b) In any case where a person is authorized under 10 CFR part 50, 52, 53, or 54 to operate two or more nuclear reactors at the same location, the total primary financial protection required of the licensee for all such reactors is the highest amount which would otherwise be required for any one of those reactors; provided, that such primary financial protection covers all reactors at the location.

[25 FR 2944, Apr. 7, 1960, as amended at 89 FR 106253, Dec. 30, 2024]

Editorial Note:For Federal Register citations affecting § 140.11, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 140.12 Amount of financial protection required for other reactors.

(a) Each licensee is required to have and maintain financial protection for each nuclear reactor for which the amount of financial protection is not determined in § 140.11, in an amount determined pursuant to the formula and other provisions of this section: Provided, That in no event shall the amount of financial protection required for any nuclear reactor under this section be less than $4,500,000 or more than $74,000,000.

(b)(1) The formula is:

x = B times P

(2) In the formula:

x = Amount of financial protection in dollars. B = Base amount of financial protection. P = Population factor.

(3) The base amount of financial protection is equal to $185 times the maximum power level, expressed in thermal kilowatts, as authorized by the applicable license.

(4) The population factor (P) shall be determined as follows:

(i) Step 1. The area to be considered includes all minor civil divisions (as shown in the 1950 Census of Population, Bureau of the Census, or later data available from the Bureau) which are wholly or partly within a circle with the facility at its center and having a radius in miles equal to the square root of the maximum authorized power level in thermal megawatts.

(ii) Step 2. Identify all minor civil divisions according to the same census which are in whole or in part within the circle determined in Step 1. Determine the population of each such minor civil division (according to the same census or later data available from the Bureau of the Census). For each minor civil division, divide its population by the square of the estimated distance to the nearest mile from the reactor to the geographic center of the minor civil division: Provided, That no such distance shall be deemed to be less than one mile. If the sum of the quotients thus obtained for all minor civil divisions wholly or partly within the circle is 1,000 or less, the population factor is 1. If the sum of these quotients is more than 1,000 but not more than 3,000, the population factor is 1.2. If the sum of these quotients is more than 3,000 but not more than 5,000, the population factor is 1.4. If the sum of these quotients is more than 5,000 but not more than 7,000, the population factor is 1.6. If the sum of these quotients is more than 7,000 but not more than 9,000, the population factor is 1.8. If the sum of these quotients is more than 9,000 the population factor is 2.0.

(c) In any case where a person is authorized under 10 CFR part 50, 52, 53, or 54 to operate two or more nuclear reactors at the same location, the total financial protection required of the licensee for all such reactors is the highest amount which would otherwise be required for any one of those reactors; provided, that such financial protection covers all reactors at the location.

(d) Except in cases where the amount of financial protection calculated under this section is a multiple of $100,000, amounts determined pursuant to this section shall be adjusted to the next highest multiple of $100,000.

[25 FR 2944, Apr. 7, 1960, as amended at 26 FR 1397, Feb. 17, 1961; 32 FR 8125, June 7, 1967; 72 FR 49565, Aug. 28, 2007; 91 FR 15879, Mar. 30, 2026]

§ 140.13 Amount of financial protection required of certain holders of construction permits and combined licenses.

Each holder of a 10 CFR part 50 or 10 CFR part 53 construction permit, or a holder of a combined license under part 52 or part 53 of this chapter before the date that the Commission had made the finding under § 52.103(g) or § 53.1452(g) of this chapter, who also holds a license under part 70 of this chapter authorizing ownership, possession and storage only of special nuclear material at the site of the nuclear reactor for use as fuel in operation of the nuclear reactor after issuance of either an operating license under 10 CFR part 50 or 53, or a combined license under 10 CFR part 52 or 53, shall, during the period before issuance of a license authorizing operation under 10 CFR part 50 or 53, or the period before the Commission makes the finding under § 52.103(g) or § 53.1452(g) of this chapter, as applicable, have and maintain financial protection in the amount of $1,000,000. Proof of financial protection shall be filed with the Commission in the manner specified in § 140.15 before issuance of the license under part 70 of this chapter.

[91 FR 15879, Mar. 30, 2026]

§ 140.13a Amount of financial protection required for plutonium processing and fuel fabrication plants.

(a) Each holder of a license issued pursuant to part 70 of this chapter to possess and use plutonium at a plutonium processing and fuel fabrication plant is required to have and maintain financial protection in the form specified in § 140.14 in the amount of $200,000,000. Proof of financial protection shall be filed with the Commission in the manner specified in § 140.15 prior to issuance of the license under part 70 of this chapter.

(b) In any case, when a person is authorized pursuant to part 70 of this chapter to possess and use plutonium at two or more plutonium processing and fuel fabrication plants at the same location, the total financial protection required of the licensee for all such plants is the highest amount which would otherwise be required for any one of those plants: Provided, however, That such financial protection covers all such plants at the location.

[42 FR 49, Jan. 3, 1977, as amended at 42 FR 20140, Apr. 18, 1977; 44 FR 20632, Apr. 6, 1979; 54 FR 24158, June 6, 1989; 83 FR 30289, June 28, 2018]

§ 140.13b Amount of liability insurance required for uranium enrichment facilities.

Each holder of a license issued under parts 40 or 70 of this chapter for a uranium enrichment facility that involves the use of source material or special nuclear material is required to have and maintain liability insurance. The liability insurance must be the type and in the amounts the Commission considers appropriate to cover liability claims arising out of any occurrence within the United States that causes, within or outside the United States, bodily injury, sickness, disease, death, loss of or damage to property, or loss of use of property arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of chemical compounds containing source material or special nuclear material. Proof of liability insurance must be filed with the Commission as required by § 140.15 before issuance of a license for a uranium enrichment facility under parts 40 and 70 of this chapter.

[57 FR 18394, Apr. 30, 1992]

§ 140.14 Types of financial protection.

(a) The amounts of financial protection required under this part may be furnished and maintained in the form of:

(1) An effective policy of liability insurance from private sources; or

(2) Adequate resources to provide the financial protection required by § 140.11, § 140.12; § 140.13 or § 140.13a; or

(3) Such other type of financial protection as the Commission may approve; or

(4) Any combination of the foregoing.

(b) In any case where the Commission has approved proof of financial protection filed by a licensee the licensee shall not substitute one type of financial protection for another type without first obtaining the written approval of the Commission.

[25 FR 2944, Apr. 7, 1960, as amended at 42 FR 49, Jan. 3, 1977]

§ 140.15 Proof of financial protection.

(a)(1) Licensees who maintain financial protection in whole or in part in the form of liability insurance shall provide proof of financial protection that consists of a copy of the liability policy (or policies) together with a certificate by the insurers issuing the policy stating that the copy is a true copy of the currently effective policy issued to the licensee. The licensee may furnish proof of financial protection in the form of the nuclear energy liability insurance policy set forth in § 140.91 or in any other form acceptable to the Commission.

(2) Such proof may alternatively, consist of a copy of the declarations page of a nuclear energy liability policy in the form set forth in § 140.91 and issued to the licensee: Provided, That such policy form has been filed by the insurers with the Commission. The declarations page shall be accompanied by a certificate by the insurers stating that said copy is a true copy of the declarations page of a currently effective policy and identifying the policy (including endorsements) by reference to the policy form which has been filed by them with the Commission.

(3) The Commission will accept any other form of nuclear energy liability insurance as proof of financial protection if it determines that the provisions of such insurance provide financial protection under the requirements of the Commission's regulations and the Act.

(b) Proof of financial protection in the case of licensees who maintain financial protection in whole or in part in the form specified in § 140.14(a)(2) shall consist of a showing that the licensee clearly has adequate resources to provide the financial protection required under this part. For this purpose the applicant or licensee shall file with the Commission:

(1) Annual financial statements for the three complete calendar or fiscal years preceding the date of filing, together with an opinion thereon by a certified public accountant. The financial statements shall include balance sheets, operating statements and such supporting schedules as may be needed for interpretation of the balance sheets and operating statements.

(2) If the most recent statements required under paragraph (b)(1) of this section have been prepared as of a date more than 90 days prior to the date of filing, similar financial statements, prepared as of a date not more than 90 days prior to the date of filing, should be included. These statements need not be reviewed by a certified public accountant.

(c) The Commission may require any licensee to file with the Commission such additional proof of financial protection or other financial information as the Commission determines to be appropriate for the purpose of determining whether the licensee is maintaining financial protection as required under this part.

(d) Proof of financial protection shall be subject to the approval of the Commission.

(e) The licensee shall promptly notify the Commission of any material change in proof of financial protection or in other financial information filed with the Commission under this part.

[25 FR 2944, Apr. 7, 1960, as amended at 33 FR 15999, Oct. 31, 1968; 49 FR 11148, Mar. 26, 1984]

§ 140.16 Commission review of proof of financial protection.

The Commission will review proof of financial protection filed by any licensee or applicant for license. If the Commission finds that the licensee or applicant for license is maintaining financial protection in accordance with the requirements of this part, approval of the financial protection will be evidenced by incorporation of appropriate provision in the license.

§ 140.17 Special provisions applicable to licensees furnishing financial protection in whole or in part in the form of liability insurance.

In any case where a licensee undertakes to maintain financial protection in the form of liability insurance for all or part of the financial protection required by this part,

(a) The Commission may require proof that the organization or organizations which have issued such policies are legally authorized to issue them and do business in the United States and have clear ability to meet their obligations; and

(b) At least 30 days prior to the termination of any such policy, the licensee shall notify the Commission of the renewal of such policy or shall file other proof of financial protection.

§ 140.18 Special provisions applicable to licensees furnishing financial protection in whole or in part in the form of adequate resources.

In any case where a licensee undertakes to maintain financial protection in the form specified in § 140.14(a)(2) for all or part of the financial protection required by this part, the Commission may require such licensee to file with the Commission such financial information as the Commission determines to be appropriate for the purpose of determining whether the licensee is maintaining financial protection as required by this part.

[42 FR 43385, Aug. 29, 1977]

§ 140.19 Failure by licensees to maintain financial protection.

In any case where the Commission finds that the financial protection maintained by a licensee is not adequate to meet the requirements of this part, the Commission may suspend or revoke the license or may issue such order with respect to licensed activities as the Commission determines to be appropriate or necessary in order to carry out the provisions of this part and of section 170 of the Act.

§ 140.20 Indemnity agreements and liens.

(a) The Commission will execute and issue agreements of indemnity pursuant to the regulations in this part or such other regulations as may be issued by the Commission. Such agreements, as to any licensee, shall be effective on:

(1)(i) The effective date of the license (issued under part 50 or part 53 of this chapter) authorizing the licensee to operate the nuclear reactor involved; or

(ii) The date that the Commission makes the finding under § 52.103(g) or § 53.1452(g) of this chapter; or

(iii) The effective date of the license (issued under part 70 of this chapter) authorizing the licensee to possess and store special nuclear material at the site of the nuclear reactor for use as fuel in operation of the nuclear reactor after issuance of an operating license for the reactor, whichever is earlier. No such agreement, however, shall be effective prior to September 26, 1957; or

(2) August 1, 1977 or the effective date of the license (issued pursuant to part 70 of this chapter) authorizing the licensee to possess and use plutonium at the site of the plutonium processing and fuel fabrication plant for processing in that plant, whichever date is later.

(b) If the licensee fails to pay assessed deferred premiums, the Commission reserves the right to pay those premiums on behalf of the licensee and to recover the amount of such premiums from the licensee.

(c) The Commission shall require the immediate submission of financial statements by those licensees who indicate, after an assessment of the retrospective premium by the insurance pools, that they will not pay the assessment. Such financial statements shall include, as a minimum, exhibits indicating internally generated funds from operations and accumulated retained earnings. Subsequent submission of financial statements by such licensees may be requested by the Commission, as required.

(d) If premiums are paid by the Commission as provided in paragraph (b) of this section, payment by the Commission shall create a lien in the amount paid in favor of the United States upon all property and rights to property, whether real or personal, belonging to such licensee. The lien shall arise at the time payment is made by the Commission and shall continue until the liability for the amount (or a judgment against the licensee arising out of such liability) is satisfied or becomes unenforceable. The Commission will issue a certificate of release of any such lien if it finds that the liability for the amount has been fully satisfied or has become legally unenforceable.

(e) If the Commission determines that the licensee is financially able to reimburse the Commission for a deferred premium payment made in its behalf, and the licensee, after notice of such determination by the Commission fails to make such reimbursement within 120 days, the Commission will take appropriate steps to suspend the license for 30 days. The Commission may take such further action as is necessary if reimbursement is not made within the 30-day suspension period including but not limited to termination of the operating license.

(f)(1)(i) The general form of indemnity agreement to be entered into by the Commission with reactor licensees who furnish financial protection in the form of the nuclear energy liability insurance policy set forth in appendix A is contained in § 140.92, appendix B. The general form of indemnity agreement to be entered into by the Commission with reactor licensees who furnish financial protection in the form specified in § 140.14(a)(2) is set forth in § 140.93, appendix C.

(ii) The general form of indemnity agreement to be entered into by the Commission with persons licensed to possess and use plutonium in a plutonium processing and fuel fabrication plant and who furnish financial protection in the form of the nuclear energy liability insurance policy set forth in appendix A 2 is contained in § 140.107, appendix G. The general form of indemnity agreement to be entered into by the Commission with such licensees who furnish financial protection in the form specified in § 140.14(a)(2) is set forth in § 140.108, appendix H.

2 The form of the nuclear energy liability insurance policy for these licensees will be the subject of pertinent endorsements after discussion with the insurance pools.

(2) The form of indemnity agreement to be entered into by the Commission with any particular licensee under this subpart shall contain such modifications of the applicable form in §§ 140.92, 140.93, 140.107 and 140.108, appendices A, B, C, G and H, as are provided for in applicable licenses, regulations or orders of the Commission.

(3) Each licensee who has executed an indemnity agreement under this subpart shall enter into such agreements amending such indemnity agreement as are required by applicable licenses, regulations, or orders of the Commission.

[42 FR 49, Jan. 3, 1977, as amended at 72 FR 49565, Aug. 28, 2007; 91 FR 15879, Mar. 30, 2026]

§ 140.21 Licensee guarantees of payment of deferred premiums.

Each licensee required to have and maintain financial protection for each nuclear reactor as determined in § 140.11(a)(4) shall at the issuance of the license and annually, on the anniversary of the date on which the indemnity agreement is effective, provide evidence to the Commission that it maintains one of the following types of guarantee of payment of deferred premium in the amount specified in § 140.11(a)(4) for each reactor it is licensed to operate:

(a) Surety bond,

(b) Letter of credit,

(c) Revolving credit/term loan arrangement,

(d) Maintenance of escrow deposits of government securities,

(e) Annual certified financial statement showing either that a cash flow (i.e., cash available to a company after all operating expenses, taxes, interest charges, and dividends have been paid) can be generated and would be available for payment of retrospective premiums within three (3) months after submission of the statement, or a cash reserve or a combination of cash flow and cash reserve, or

(f) Such other type of guarantee as may be approved by the Commission.

[42 FR 50, Jan. 3, 1977, as amended at 71 FR 15012, Mar. 27, 2006; 74 FR 62686, Dec. 1, 2009; 79 FR 38769, July 9, 2014]

§ 140.22 Commission guarantee and reimbursement agreements.

Each licensee required to have and maintain financial protection for each nuclear reactor as determined in § 140.11(a)(4) shall execute an indemnity agreement with the Commission that provides for the payment by the Commission of deferred premiums not paid by the licensee and reimbursement of the Commission by the licensee. The general forms of agreement to be entered into by the Commission and licensees are set forth in § 140.92, appendix B and § 140.93, appendix C.

[42 FR 50, Jan. 3, 1977, as amended at 83 FR 30289, June 28, 2018]

§ 140.51 Scope.

This subpart applies only to persons found by the Commission to be Federal agencies, which have applied for or are holders of licenses issued pursuant to part 50 of this chapter authorizing operation of nuclear reactors.

Note:

Federal agencies are not required to furnish financial protection.

§ 140.52 Indemnity agreements.

(a) The Commission will execute and issue agreements of indemnity with each Federal agency subject to this subpart pursuant to the regulations in this part or such other regulations as may be issued by the Commission. Such agreements, as to any licensee, shall be effective on:

(1) The effective date of the license (issued pursuant to part 50 of this chapter) authorizing the licensee to operate the nuclear reactor involved; or

(2) The effective date of the license (issued pursuant to part 70 of this chapter) authorizing the licensee to possess and store special nuclear material at the site of the nuclear reactor for use as fuel in operation of the nuclear reactor after issuance of an operating license for the reactor, whichever is earlier. No such agreement, however, shall be effective prior to September 26, 1957.

(b)(1) The general form of indemnity agreement to be entered into with licensees subject to this subpart is contained in § 140.94 appendix D.

(2) The form of indemnity agreement to be entered into by the Commission with any particular licensee under this subpart shall contain such modifications of the form in § 140.94, as are provided for in applicable licenses, regulations or orders of the Commission.

(3) Each licensee who has executed an indemnity agreement under this subpart shall enter into such agreements amending such indemnity agreement as are required by applicable licenses, regulations or orders of the Commission.

[27 FR 2885, Mar. 29, 1962, as amended at 33 FR 15999, Oct. 31, 1968]

§ 140.71 Scope.

This subpart applies only to applicants for and holders of licenses issued for the conduct of educational activities to persons found by the Commission to be nonprofit educational institutions, except that this subpart does not apply to Federal agencies.

Note:

Financial protection is not required with respect to licenses issued for the conduct of educational activities to persons found by the Commission to be non-profit educational institutions.

§ 140.72 Indemnity agreements.

(a) The Commission will execute and issue agreements of indemnity with each non-profit educational institution subject to this subpart pursuant to the regulations in this part or such other regulations as may be issued by the Commission. Such agreements, as to any licensee, shall be effective on:

(1) The effective date of the license (issued pursuant to part 50 of this chapter) authorizing the licensee to operate the nuclear reactor involved; or

(2) The effective date of the license (issued pursuant to part 70 of this chapter) authorizing the licensee to possess and store special nuclear material at the site of the nuclear reactor for use as fuel in operation of the nuclear reactor after issuance of an operating license for the reactor, whichever is earlier. No such agreement, however, shall be effective prior to September 26, 1957.

(b)(1) The general form of indemnity agreement to be entered into with licensees subject to this subpart is contained in § 140.95 appendix E.

(2) The form of indemnity agreement to be entered into by the Commission with any particular licensee under this subpart shall contain such modifications of the form in § 140.95 appendix E, as are provided for in applicable licenses, regulations or orders of the Commission.

(3) Each licensee who has executed an indemnity agreement under this subpart shall enter into such agreements amending such indemnity agreement as are required by applicable licenses, regulations or orders of the Commission.

[27 FR 2885, Mar. 29, 1962, as amended at 33 FR 15999, Oct. 31, 1968]

§ 140.81 Scope and purpose.

(a) Scope. This subpart applies to applicants for and holders of licenses authorizing operation of production facilities and utilization facilities, including combined licenses under part 52 of this chapter, and to other persons indemnified with respect to such facilities.

(b) Purpose. One purpose of this subpart is to set forth the criteria which the Commission proposes to follow in order to determine whether there has been an “extraordinary nuclear occurrence.” The other purpose is to establish the conditions of the waivers of defenses proposed for incorporation in indemnity agreements and insurance policies or contracts furnished as proof of financial protection.

(1) The system is to come into effect only where the discharge or dispersal constitutes a substantial amount of source, special nuclear or byproduct material, or has caused substantial radiation levels offsite. The various limits in present NRC regulations are not appropriate for direct application in the determination of an “extraordinary nuclear occurrence,” for they were arrived at with other purposes in mind, and those limits have been set at a level which is conservatively arrived at by incorporating a significant safety factor. Thus, a discharge or dispersal which exceeds the limits in NRC regulations, or in license conditions, although possible cause for concern, is not one which would be expected to cause substantial injury or damage unless it exceeds by some significant multiple the appropriate regulatory limit. Accordingly, in arriving at the values in the criteria to be deemed “substantial” it is more appropriate to adopt values separate from NRC health and safety regulations, and, of course, the selection of these values will not in any way affect such regulations. A substantial discharge, for purposes of the criteria, represents a perturbation of the environment which is clearly above that which could be anticipated from the conduct of normal activities. The criteria are intended solely for the purposes of administration of the Commission's statutory responsibilities under Pub. L. 89-645, and are not intended to indicate a level of discharge or dispersal at which damage to persons or property necessarily will occur, or a level at which damage is likely to occur, or even a level at which some type of protective action is indicated. It should be clearly understood that the criteria in no way establish or indicate that there is a specific threshold of exposure at which biological damage from radiation will take place. It cannot be emphasized too frequently that the levels set to be used as criteria for the first part of the determination, that is, the criteria for amounts offsite or radiation levels offsite which are substantial, are not meant to indicate that, because such amounts or levels are determined to be substantial for purposes of administration, they are “substantial” in terms of their propensity for causing injury or damage.

(2) It is the purpose of the second part of the determination that the Commission decide whether there have in fact been or will probably be substantial damages to persons offsite or property offsite. The criteria for substantial damages were formulated, and the numerical values selected, on a wholly different basis from that on which the criteria used for the first part of the determination with respect to substantial discharge were derived. The only interrelation between the values selected for the discharge criteria and the damage criteria is that the discharge values are set so low that it is extremely unlikely the damage criteria could be satisfied unless the discharge values have been exceeded.

(3) The first part of the test is designed so that the Commission can assure itself that something exceptional has occurred; that something untoward and unexpected has in fact taken place and that this event is of sufficient significance to raise the possibility that some damage to persons or property offsite has resulted or may result. If there appears to be no damage, the waivers will not apply because the Commission will be unable, under the second part of the test, to make a determination that “substantial damages” have resulted or will probably result. If damages have resulted or will probably result, they could vary from de minimis to serious, and the waivers will not apply until the damages, both actual and probable, are determined to be “substantial” within the second part of the test.

(4) The presence or absence of an extraordinary nuclear occurrence determination does not concomitantly determine whether or not a particular claimant will recover on his claim. In effect, it is intended primarily to determine whether certain potential obstacles to recovery are to be removed from the route the claimant would ordinarily follow to seek compensation for his injury or damage. If there has not been an extraordinary nuclear occurrence determination, the claimant must proceed (in the absence of settlement) with a tort action subject to whatever issues must be met, and whatever defenses are available to the defendant, under the law applicable in the relevant jurisdiction. If there has been an extraordinary nuclear occurrence determination, the claimant must still proceed (in the absence of settlement) with a tort action, but the claimant's burden is substantially eased by the elimination of certain issues which may be involved and certain defenses which may be available to the defendant. In either case the defendant may defend with respect to such of the following matters as are in issue in any given claim: The nature of the claimant's alleged damages, the causal relationship between the event and the alleged damages, and the amount of the alleged damages.

[33 FR 15999, Oct. 31, 1968, as amended at 40 FR 8793, Mar. 3, 1975; 72 FR 49565, Aug. 28, 2007]

§ 140.82 Procedures.

(a) The Commission may initiate, on its own motion, the making of a determination as to whether or not there has been an extraordinary nuclear occurrence. In the event the Commission does not so initiate the making of a determination, any affected person, or any licensee or person with whom an indemnity agreement is executed or a person providing financial protection may petition the Commission for a determination of whether or not there has been an extraordinary nuclear occurrence. If the Commission does not have, or does not expect to have, within 7 days after it has received notification of an alleged event, enough information available to make a determination that there has been an extraordinary nuclear occurrence, the Commission will publish a notice in the Federal Register setting forth the date and place of the alleged event and requesting any persons having knowledge thereof to submit their information to the Commission.

(b) When a procedure is initiated under paragraph (a) of this section, the Commission will designate members of the principal staff to begin immediately to assemble the relevant information and prepare a report on which the Commission can make its determination.

[33 FR 15999, Oct. 31, 1968, as amended at 40 FR 8794, Mar. 3, 1975]

§ 140.83 Determination of extraordinary nuclear occurrence.

If the Commission determines that both of the criteria set forth in §§ 140.84 and 140.85 have been met, it will make the determination that there has been an extraordinary nuclear occurrence. If the Commission publishes a notice in the Federal Register in accordance with § 140.82(a) and does not make a determination within 90 days thereafter that there has been an extraordinary nuclear occurrence, the alleged event will be deemed not to be an extraordinary nuclear occurrence. The time for the making of a determination may be extended by the Commission by notice published in the Federal Register.

[33 FR 15999, Oct. 31, 1968]

§ 140.84 Criterion I—Substantial discharge of radioactive material or substantial radiation levels offsite.

The Commission will determine that there has been a substantial discharge or dispersal of radioactive material offsite, or that there have been substantial levels of radiation offsite, when, as a result of an event comprised of one or more related happenings, radioactive material is released from its intended place of confinement or radiation levels occur offsite and either of the following findings are also made:

(a) The Commission finds that one or more persons offsite were, could have been, or might be exposed to radiation or to radioactive material, resulting in a dose or in a projected dose in excess of one of the levels in the following table:

Total Projected Radiation Doses

Critical organ | Dose (rems)

Thyroid | 30

Whole body | 20

Bone marrow | 20

Skin | 60

Other organs or tissues | 30

Exposures from the following types of sources of radiation shall be included:

(1) Radiation from sources external to the body;

(2) Radioactive material that may be taken into the body from its occurrence in air or water; and

(3) Radioactive material that may be taken into the body from its occurrence in food or on terrestrial surfaces.

(b) The Commission finds that:

(1) Surface contamination of at least a total of any 100 square meters of offsite property has occurred as the result of a release of radioactive material from a production or utilization facility and such contamination is characterized by levels of radiation in excess of one of the values listed in Column 1 or Column 2 of the following table, or

(2) Surface contamination of any offsite property has occurred as the result of a release of radioactive material in the course of transportation and such contamination is characterized by levels of radiation in excess of one of the values listed in column 2 of the following table:

Total Surface Contamination Levels 1

Type of emitter | Column 1 Offsite property, contiguous to site, owned or leased by person with whom an indemnity agreement is executed | Column 2 Other offsite property

Alpha emission from transuranic isotopes | 3.5 microcuries per square meter | 0.35 microcuries per square meter.

Alpha emission from isotopes other than transuranic isotopes | 35 microcuries per square meter | 3.5 microcuries per square meter.

Beta or gamma mission | 40 millirads/hour @ 1 cm. 2 | 4 millirads/hour @ 1 cm. 2

1 The maximum levels (above background), observed or projected, 8 or more hours after initial deposition.

2 Measured through not more than 7 milligrams per square centimeter of total absorber.

[33 FR 15999, Oct. 31, 1968, as amended at 40 FR 8794, Mar. 3, 1975]

§ 140.85 Criterion II—Substantial damages to persons offsite or property offsite.

(a) After the Commission has determined that an event has satisfied Criterion I, the Commission will determine that the event has resulted or will probably result in substantial damages to persons offsite or property offsite if any of the following findings are made:

(1) The Commission finds that such event has resulted in the death or hospitalization, within 30 days of the event, of five or more people located offsite showing objective clinical evidence of physical injury from exposure to the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material; or

(2) The Commission finds that $2,500,000 or more of damage offsite has been or will probably be sustained by any one person, or $5 million or more of such damage in the aggregate has been or will probably be sustained, as the result of such event; or

(3) The Commission finds that $5,000 or more of damage offsite has been or will probably be sustained by each of 50 or more persons, provided that $1 million or more of such damage in the aggregate has been or will probably be sustained, as the result of such event.

(b) As used in paragraphs (a) (2) and (3) of this section, “damage” shall be that arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of source, special nuclear, or byproduct material, and shall be based upon estimates of one or more of the following:

(1) Total cost necessary to put affected property back into use,

(2) Loss of use of affected property,

(3) Value of affected property where not practical to restore to use,

(4) Financial loss resulting from protective actions appropriate to reduce or avoid exposure to radiation or to radioactive materials.

[33 FR 15999, Oct. 31, 1968]

§ 140.87 Violations.

(a) The Commission may obtain an injunction or other court order to prevent a violation of the provisions of—

(1) The Atomic Energy Act of 1954, as amended;

(2) Title II of the Energy Reorganization Act of 1974, as amended; or

(3) A regulation or order issued pursuant to those Acts.

(b) The Commission may obtain a court order for the payment of a civil penalty imposed under section 234 of the Atomic Energy Act:

(1) For violations of—

(i) Sections 53, 57, 62, 63, 81, 82, 101, 103, 104, 107, or 109 of the Atomic Energy Act of 1954, as amended;

(ii) Section 206 of the Energy Reorganization Act;

(iii) Any rule, regulation, or order issued pursuant to the sections specified in paragraph (b)(1)(i) of this section;

(iv) Any term, condition, or limitation of any license issued under the sections specified in paragraph (b)(1)(i) of this section.

(2) For any violation for which a license may be revoked under section 186 of the Atomic Energy Act of 1954, as amended.

[57 FR 55080, Nov. 24, 1992]

§ 140.89 Criminal penalties.

(a) Section 223 of the Atomic Energy Act of 1954, as amended, provides for criminal sanctions for willful violation of, attempted violation of, or conspiracy to violate, any regulation issued under sections 161b, 161i, or 161o of the Act. For purposes of section 223, all the regulations in part 140 are issued under one or more of sections 161b, 161i, or 161o, except for the sections listed in paragraph (b) of this section.

(b) The regulations in part 140 that are not issued under sections 161b, 161i, or 161o for the purposes of section 223 are as follows: §§ 140.1, 140.2, 140.3, 140.4, 140.5, 140.7, 140.8, 140.9, 140.9a, 140.10, 140.14, 140.16, 140.18, 140.19, 140.20, 140.51, 140.52, 140.71, 140.72, 140.81, 140.82, 140.83, 140.84, 140.85, 140.87, 140.89, 140.91, 140.92, 140.93, 140.94, 140.95, 140.96, 140.107, 140.108, and 140.109.

[57 FR 55080, Nov. 24, 1992]

§ 140.91 Appendix A—Form of nuclear energy liability policy for facilities.

While the text of the policy which follows is exemplary of a contract acceptable to the Commission as evidence of the financial protection required of the licensee by section 170 of the Atomic Energy Act of 1954, as amended, variations on this text submitted by the licensee also will be considered by the Commission in determining whether the licensee meets the financial protection requirements of the Act. The full text of the policy is published solely for the purpose of completeness. Publication of this text should not be construed as a Commission endorsement of any particular provision pertaining solely to the business relationship between the insurers and the insureds or to any other matter not within the Commission's statutory jurisdiction under the Atomic Energy Act.

Nuclear Energy Liability Policy (Facility Form)

The undersigned members of __________, hereinafter called the “companies,” each for itself, severally and not jointly, and in the respective proportions hereinafter set forth, agree with the insured, named in the declarations made a part hereof, in consideration of the premium and in reliance upon the statements in the declarations and subject to the limit of liability, exclusions, conditions and other terms of this policy;

insuring agreements

I. Coverage A—Bodily injury and property damage liability. To pay on behalf of the insured:

(1) All sums which the insured shall become legally obligated to pay as damages because of bodily injury or property damage caused by the nuclear energy hazard, and the companies shall defend any suit against the insured alleging such bodily injury or property damage and seeking damages which are payable under the terms of this policy; but the companies may make such investigation, negotiation and settlement of any claim or suit as they deem expedient;

(2) Costs taxed against the insured in any such suit and interest on any judgment therein;

(3) Premiums on appeal bonds and on bonds to release attachments in any such suit, but without obligation to apply for or furnish such bonds;

(4) Reasonable expenses, other than loss of earnings, incurred by the insured at the companies' request.

Coverage B—Damage to property of an insured away from the facility. With respect to property damage caused by the nuclear energy hazard to property of an insured which is away from the facility, to pay to such insured those sums which such insured would have been legally obligated to pay as damages therefor, had such property belonged to another.

Coverage C—Subrogation—Offsite employees. With respect to bodily injury sustained by any employee of an insured and caused by the nuclear energy hazard, to pay to the workmen's compensation carrier of such insured all sums which such carrier would have been entitled to recover and retain as damages from another person or organization, had such person or organization alone been legally responsible for such bodily injury, by reason of the rights acquired by subrogation by the payment of the benefits required of such carrier under the applicable workmen's compensation or occupational disease law. An employer who is a duly qualified self-insurer under such law shall be deemed to be a workmen's compensation carrier within the meaning of this coverage. This Coverage C does not apply to bodily injury sustained by any person who is employed at and in connection with the facility. This Coverage C shall not constitute workmen's compensation insurance as required under the laws of any state.

II. Definition of insured. The unqualified word insured includes (a) the named insured and (b) any other person or organization with respect to his legal responsibility for damages because of bodily injury or property damage caused by the nuclear energy hazard.

Subdivision (b) above does not include as an insured the United States of America or any of its agencies.

Subject to Condition 3 and the other provisions of this policy, the insurance applies separately to each insured against whom claim is made or suit is brought.

III. Definitions. Wherever used in this policy:

Bodily injury means bodily injury, sickness or disease, including death resulting therefrom, sustained by any person;

Property damage means physical injury to or destruction or radioactive contamination of property, and loss of use of property so injured, destroyed or contaminated, and loss of use of property while evacuated or withdrawn from use because possibly so contaminated or because of imminent danger of such contamination;

Nuclear material means source material, special nuclear material or byproduct material;

Source material, special nuclear material, and byproduct material have the meanings given them in the Atomic Energy Act of 1954, or in any law amendatory thereof;

Spent fuel means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in any nuclear reactor;

Waste means any waste material (1) containing byproduct material and (2) resulting from the operation by any person or organization of any nuclear facility included within the definition of nuclear facility under paragraph (1) or (2) thereof;

The facility means the facility described in the declarations and includes the location designated in Item 3 of the declarations and all property and operations at such location;

Nuclear facility means the facility as defined in any Nuclear Energy Liability Policy (Facility Form) issued by the companies or by __________________________________.

The term nuclear facility also means

(1) Any nuclear reactor,

(2) Any equipment or device designed or used for (a) separating the isotopes of uranium or plutonium, (b) processing or utilizing spent fuel, or (c) handling, processing or packaging waste,

(3) Any equipment or device used for the processing, fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment or device is located consists of or contains more than 25 grams of plutonium or uranium-233 or any combination thereof, or more than 250 grams of uranium-235,

(4) Any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste, and includes the site on which any of the foregoing is located, all operations conducted on such site and all premises used for such operations;

Indemnified nuclear facility means

(1) The facility as defined in any Nuclear Energy Liability Policy (Facility Form) issued by the companies or by ______________________________________________,

(2) Any other nuclear facility,

if financial protection is required pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, with respect to any activities or operations conducted thereat;

Nuclear reactor means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material;

Nuclear energy hazard means the radioactive, toxic, explosive or other hazardous properties of nuclear material, but only if:

(1) The nuclear material is at the facility or has been discharged or dispersed therefrom without intent to relinquish possession or custody thereof to any person or organization, or

(2) The nuclear material is in an insured shipment which is (a) in the course of transportation, including handling and temporary storage incidental thereto, within the territorial limits of the United States of America, its territories or possessions, Puerto Rico or the Canal Zone and (b) away from any other nuclear facility;

Insured shipment means a shipment of source material, special nuclear material, spent fuel of waste, herein called material, (1) to the facility from a nuclear facility owned by the United States of America, but only if the transportation of the material is not by predetermination to be interrupted by the removal of the material from a transporting conveyance for any purpose other than the continuation of its transportation, or (2) from the facility to any other location except an indemnified nuclear facility, but only until the material is removed from a transporting conveyance for any purpose other than the continuation of its transportation.

IV. Application of policy. This policy applies only to bodily injury or property damage (1) which is caused during the policy period by the nuclear energy hazard and (2) which is discovered and for which written claim is made against the insured, not later than two years after the end of the policy period.

Exclusions

This policy does not apply:

(a) To any obligation for which the insured or any carrier as his insurer may be held liable under any workmen's compensation, unemployment compensation or disability benefits law, or under any similar law;

(b) Except with respect to liability of another assumed by the insured under contract, to bodily injury to any employee of the insured arising out of and in the course of his employment by the insured; but this exclusion does not apply to bodily injury to any person who is not employed at and in connection with the facility if the insured has complied with the requirements of the applicable workmen's compensation or occupational disease law respecting the securing of compensation benefits thereunder to his employees;

(c) To liability assumed by the insured under contract, other than an assumption in a contract with another of the liability of any person or organization which would be imposed by law on such person or organization in the absence of an express assumption of liability;

(d) To bodily injury or property damage due to the manufacturing, handling or use at the location designated in Item 3 of the declarations, in time of peace or war, of any nuclear weapon or other instrument of war utilizing special nuclear material or byproduct material;

(e) To bodily injury or property damage due to war, whether or not declared, civil war, insurrection, rebellion or revolution, or to any act or conditions incident to any of the foregoing;

(f) To property damage to any property at the location designated in Item 3 of the declarations, other than aircraft, watercraft or vehicles licensed for highway use, provided such aircraft, watercraft or vehicles are not used in connection with the operation of the facility;

(g) To property damage to nuclear material in the course of transportation to or from the facility including handling or storage incidental thereto;

(h) Under Coverage B, to property damage due to neglect of the insured to use all reasonable means to save and preserve the property after knowledge of the occurrence resulting in such property damage.

Conditions

1. Premium—(1) Definitions. With reference to the premium for this policy: advance premium, for any calendar year, is the estimated standard premium for that calendar year;

Standard premium, for any calendar year, is the premium for that calendar year computed in accordance with the companies' rules, rates, rating plans (other than the Industry Credit Rating Plan), premiums and minimum premiums applicable to this insurance;

Reserve premium means that portion of the standard premium paid to the companies and specifically allocated under the Industry Credit Rating Plan for incurred losses. The amount of the reserve premium for this policy for any calendar year during which this policy is in force is the amount designated as such in the Standard Premium Endorsement for that calendar year;

Industry reserve premium, for any calendar year, is the sum of the reserve premiums for that calendar year for all Nuclear Energy Liability Policies issued by the Nuclear Energy Liability Insurance Association and Mutual Atomic Energy Liability Underwriters and subject to the Industry Credit Rating Plan;

Policy refund ratio, for any calendar year, is the ratio of the named insured's reserve premium for that calendar year to the industry reserve premium for that calendar year;

Incurred losses means the sum of:

(1) All losses and expenses by Nuclear Energy Liability Insurance Association and Mutual Atomic Energy Liability Underwriters, and

(2) All reserves for unpaid losses and expenses as estimated by Nuclear Energy Liability Insurance Association and Mutual Atomic Energy Liability Underwriters because of obligations assumed and the expenses incurred in connection with such obligations by members of Nuclear Energy Liability Insurance Association and Mutual Atomic Energy Liability Underwriters under all Nuclear Energy Liability Policies issued by Nuclear Energy Liability Insurance Association and Mutual Atomic Energy Liability Underwriters and subject to the Industry Credit Rating Plan;

Reserve for refunds, at the end of any calendar year, is the amount by which (1) the sum of all industry reserve premiums for the period from January 1, 1957 through the end of such calendar year exceeds (2) the total for the same period of (a) all incurred losses, valued as of the next following July 1, and (b) all reserve premium refunds made under the Industry Credit Rating Plan by members of Nuclear Energy Liability Insurance Association and Mutual Atomic Energy Liability Underwriters;

Industry reserve premium refund, for any calendar year, is determined by multiplying the reserve for refunds at the end of the ninth calendar year thereafter by the ratio of the industry reserve premium for the calendar year for which the premium refund is being determined to the sum of such amount and the total industry reserve premiums for the next nine calendar years thereafter, provided that the industry reserve premium refund for any calendar year shall in no event be greater than the industry reserve premium for such calendar year.

(2) Payment of advance and standard premiums. The named insured shall pay the companies the advance premium stated in the declarations, for the period from the effective date of this policy through December 31 following. Thereafter, at the beginning of each calendar year while this policy is in force, the named insured shall pay the advance premium for such year to the companies. The advance premium for each calendar year shall be stated in the Advance Premium Endorsement for such calendar year issued to the named insured as soon as practicable prior to or after the beginning of such year.

As soon as practicable after each December 31 and after the termination of this policy, the standard premium for the preceding calendar year shall be finally determined and stated in the Standard Premium Endorsement for that calendar year. If the standard premium so determined exceeds the advance premium previously paid for such calendar year, the named insured shall pay the excess to the companies; if less, the companies shall return to the named insured the excess portion paid by such insured.

The named insured shall maintain records of the information necessary for premium computation and shall send copies of such records to the companies as directed, at the end of each calendar year, at the end of the policy period and at such other times during the policy period as the companies may direct.

(3) Use of reserve premiums. All reserve premiums paid or payable for this policy may be used by the members of Nuclear Energy Liability Insurance Association or Mutual Atomic Energy Liability Underwriters to discharge their obligations with respect to incurred losses whether such losses are incurred under this policy or under any other policy issued by the Nuclear Energy Liability Insurance Association or Mutual Atomic Energy Liability Underwriters.

(4) Reserve premium refunds. A portion of the reserve premium for this policy for the first calendar year of any group of ten consecutive calendar years shall be returnable to the named insured provided there is a reserve for refunds at the end of the tenth calendar year.

(5) Computation of reserve premium refunds. The reserve premium refund due the named insured for any calendar year shall be determined by multiplying any industry reserve premium refund for such calendar year by the policy refund ratio for such calendar year. The reserve premium refund for any calendar year shall be finally determined as soon as practicable after July 1 of the tenth calendar year thereafter.

(6) Final premium. The final premium for this policy shall be the sum of the standard premiums for each calendar year, or portion thereof, during which this policy remains in force less the sum of all refunds of reserve premiums due the named insured under the provisions of this Condition 1.

(7) Reserve premium refund agreement. Each member of Nuclear Energy Liability Insurance Association or Mutual Atomic Energy Liability Underwriters subscribing this policy for any calendar year, or portion thereof, thereby agrees for itself, severally and not jointly, and in the respective proportion of its liability assumed under this policy for that calendar year, to return to the named insured that portion of any reserve premium refund due the named insured for that calendar year, determined in accordance with the provisions of this Condition 1.

2. Inspection; suspension. The companies shall be permitted to inspect the facility and to examine the insured's books and records at any time, as far as they relate to the subject-matter of this insurance.

If a representative of the companies discovers a condition which he believes to be unduly dangerous with respect to the nuclear energy hazard, a representative of the companies may request that such condition be corrected without delay. In the event of noncompliance with such request, a representative of the companies may, by notice to the named insured, to any other person or organization considered by the companies to be responsible for the continuance of such dangerous condition, and to the United States Atomic Energy Commission, suspend the insurance with respect to the named insured and such other person or organization effective 12:00 midnight of the next business day of such Commission following the date that such Commission receives such notice. The period of such suspension shall terminate as of the time stated in a written notice from the companies to the named insured and to each such person or organization that such condition has been corrected.

3. Limit of liability; termination of policy upon exhaustion of limit. Regardless of the number of persons and organizations who are insureds under this policy, and regardless of the number of claims made and suits brought against any or all insureds because of one or more occurrences resulting in bodily injury or property damage caused during the policy period by the nuclear energy hazard, the limit of the companies' liability stated in the declarations is the total liability of the companies for their obligations under this policy and the expenses incurred by the companies in connection with such obligations, including.

(a) Payments in settlement of claims and in satisfaction of judgments against the insureds for damages because of bodily injury or property damage, payments made under parts (2), (3) and (4) of Coverage A and payments made in settlement of claims under Coverages B and C;

(b) Payments for expenses incurred in the investigation, negotiation, settlement and defense of any claim or suit, including, but not limited to, the cost of such services by salaried employees of the companies, fees and expenses of independent adjusters, attorneys' fees and disbursements, expenses for expert testimony, inspection and appraisal of property, examination, X-ray or autopsy or medical expenses of any kind;

(c) Payments for expenses incurred by the companies in investigating an occurrence resulting in bodily injury or property damage or in minimizing its effects.

Each payment made by the companies in discharge of their obligations under this policy or for expenses incurred in connection with such obligations shall reduce by the amount of such payment the limit of the companies' liability under this policy.

If, during the policy period or subsequent thereto, the total of such payments made by the companies shall exhaust the limit of the companies' liability under this policy, all liability and obligations of the companies under this policy shall thereupon terminate and shall be conclusively presumed to have been discharged. This policy, if not theretofore canceled, shall thereupon automatically terminate.

Regardless of the number of years this policy shall continue in force and the number of premiums which shall be payable or paid, the limit of the companies' liability stated in the declarations shall not be cumulative from year to year.

4. Limitation of liability; common occurrence. Any occurrence or series of occurrences resulting in bodily injury or property damage arising out of the radioactive, toxic, explosive or other hazardous properties of

(a) Nuclear material discharged or dispersed from the facility over a period of days, weeks, months or longer and also arising out of such properties of other nuclear material so discharged or dispersed from one or more other nuclear facilities insured by the companies under a Nuclear Energy Liability Policy (Facility Form), or

(b) Source material, special nuclear material, spent fuel or waste in the course of transportation for which insurance is afforded under this policy and also arising out of such properties of other source material, special nuclear material, spent fuel or waste in the course of transportation for which insurance is afforded under one or more other Nuclear Energy Liability Policies (Facility Form) issued by the companies, shall be deemed to be a common occurrence resulting in bodily injury or property damage caused by the nuclear energy hazard.

With respect to such bodily injury and property damage (1) the total aggregate liability of the companies under all Nuclear Energy Liability Policies (Facility Form), including this policy, applicable to such common occurrence shall be the sum of the limits of liability of all such policies, the limit of liability of each such policy being as determined by Condition 3 thereof, but in no event shall such total aggregate liability of the companies exceed $______________; 1 (2) the total liability of the companies under this policy shall not exceed that proportion of the total aggregate liability of the companies, as stated in clause (1) above, which (a) the limit of liability of this policy, as determined by Condition 3, bears to (b) the sum of the limits of liability of all such policies issued by the companies, the limit of liability of each such policy being as determined by Condition 3, thereof.

1 For policies issued by Nuclear Energy Liability-Property Insurance Association the amount will be “$124,000,000,” for policies issued by Mutual Atomic Energy Liability Underwriters, the amount will be “$36,000,000.”

The provisions of this condition shall not operate to increase the limit of the companies' liability under this policy.

5. Notice of occurrence, claim, or suit. In the event of bodily injury or property damage to which this policy applies or of an occurrence which may give rise to claims therefor, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to ____________or the companies as soon as practicable. If claim is made or suit is brought against the insured, he shall immediately forward to __________ or the companies every demand, notice, summons or other process received by him or his representative.

6. Assistance and cooperation of the insured. The insured shall cooperate with the companies and, upon the companies' request, attend hearings and trials and assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance. The insured shall not, except at his own cost, make any payment, assume any obligation or incur any expense.

7. Action against companies—Coverages A and C. No action shall lie against the companies or any of them unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the companies.

Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this policy to the extent of the insurance afforded by this policy. No person or organization shall have any right under this policy to join the companies or any of them as parties to any action against the insured to determine the insured's liability, nor shall the companies or any of them be impleaded by the insured or his legal representative. Bankruptcy or insolvency of the insured or of the insured's estate shall not relieve the companies of any of their obligations hereunder.

8. Action against companies—Coverage B. No suit or action on this policy for the recovery of any claim for property damage to which Coverage B applies shall be sustainable in any court of law or equity unless all the requirements of this policy shall have been complied with and unless commenced within two years after the occurrence resulting in such property damage.

9. Insured's duties when loss occurs—Coverage B. In the event of property damage to which Coverage B applies, the insured shall furnish a complete inventory of the property damage claimed, showing in detail the amount thereof. Within ninety-one days after the occurrence resulting in such property damage, unless such time is extended in writing by the companies, the insured shall render to the companies a proof of loss, signed and sworn to by the insured, stating the knowledge and belief of the insured as to the following: identification of such occurrence; the interest of the insured in the property destroyed or damaged, and the amount of each item of property damage claimed; all encumbrances on such property; and all other contracts of insurance, whether valid or not, covering any of such property. The insured shall include in the proof of loss a copy of all descriptions and schedules in all policies. Upon the companies' request, the insured shall furnish verified plans and specifications of any such property. The insured, as often as may be reasonably required, shall exhibit to any person designated by the companies any of such property, and submit to examinations under oath by any person named by the companies and subscribe the same; and, as often as may be reasonably required, shall produce for examination all books of account, records, bills, invoices and other vouchers, or certified copies thereof if originals be lost, at such reasonable time and place as may be designated by the companies or their representatives, and shall permit extracts and copies thereof to be made.

10. Appraisal—Coverage B. In case the insured and the companies shall fail to agree as to the amount of property damage, then, on the written demand of either, each shall select a competent and disinterested appraiser and notify the other of the appraiser selected within twenty days of such demand. The appraisers shall first select a competent and disinterested umpire and, failing for fifteen days to agree upon such umpire, then, on request of the insured or the companies, such umpire shall be selected by a judge of a court of record in the state in which the property is located. The appraisers shall then appraise each item of property damage and, failing to agree, shall submit their differences only to the umpire. An award in writing, so itemized, of any two when filed with the companies shall determine the amount of property damage. Each appraiser shall be paid by the party selecting him and the expenses of the appraisal and umpire shall be paid by the parties equally. The companies shall not be held to have waived any of their rights by any act relating to appraisal.

11. Subrogation. In the event of any payment under this policy, the companies shall be subrogated to all the insured's rights of recovery therefor against any person or organization, and the insured shall execute and deliver instruments and papers and do whatever else is necessary to secure such rights. Prior to knowledge of bodily injury or property damage caused by the nuclear energy hazard the insured may waive in writing any right or recovery against any person or organization, but after such knowledge the insured shall not waive or otherwise prejudice any such right of recovery.

The companies hereby waive any rights of subrogation acquired against the United States of America or any of its agencies by reason of any payment under this policy.

The companies do not relinquish, by the foregoing provisions, any right to restitution from the insured out of any recoveries made by the insured on account of a loss covered by this policy of any amounts to which the companies would be entitled had such provisions, or any of them, not been included in this policy.

12. Other insurance. If the insurance afforded by this policy for loss or expense is concurrent with insurance afforded for such loss or expense by a Nuclear Energy Liability Policy (Facility Form) issued to the named insured by __________ hereinafter called “concurrent insurance,” the companies shall not be liable under this policy for a greater proportion of such loss or expense than the limit of liability stated in the declarations of this policy bears to the sum of such limit and the limit of liability stated in the declarations of such concurrent policy.

If the insured has other valid and collectible insurance (other than such concurrent insurance or any other nuclear energy liability insurance issued by the companies or __________ to any person or organization) applicable to loss or expense covered by this policy, the insurance afforded by this policy shall be excess insurance over such other insurance; provided, with respect to any person who is not employed at and in connection with the facility, such insurance as is afforded by this policy for bodily injury to an employee of the insured arising out of and in the course of his employment shall be primary insurance under such other insurance.

13. Changes. Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this policy or stop the companies from asserting any right under the terms of this policy; nor shall the terms of this policy be waived or changed except by endorsement issued to form a part of this policy executed by __________ on behalf of the companies.

14. Assignment. Assignment of interest by the named insured shall not bind the companies until their consent is endorsed hereon; if, however, the named insured shall die or be declared bankrupt or insolvent, this policy shall cover such insured's legal representative, receiver or trustee as an insured under this policy, but only with respect to his liability as such, and then only provided written notice of his appointment as legal representative, receiver or trustee is given to the companies within ten days after such appointment.

15. Cancellation. This policy may be canceled by the named insured by mailing to the companies and the United States Nuclear Regulatory Commission written notice stating when, not less than thirty days thereafter, such cancellation shall be effective. This policy may be canceled by the companies by mailing to the named insured at the address shown in this policy and to the United States Nuclear Regulatory Commission written notice stating when, not less than ninety days thereafter, such cancellation shall be effective; provided in the event of non-payment of premium or if the operator of the facility, as designated in the declarations, is replaced by another person or organization, this policy may be canceled by the companies by mailing to the named insured at the address shown in this policy and to the United States Nuclear Regulatory Commission written notice stating when, not less than thirty days thereafter, such cancellation shall be effective. The mailing of notice as aforesaid shall be sufficient proof of notice. The effective date and hour of cancellation stated in the notice shall become the end of the policy period. Delivery of such written notice either by the named insured or by the companies shall be equivalent to mailing.

Upon termination or cancellation of this policy, other than as of the end of December 31 in any year, the earned premium for the period this policy has been in force since the preceding December 31 shall be computed in accordance with the following provisions:

(a) If this policy is terminated, pursuant to Condition 3, by reason of the exhaustion of the limit of the companies' liability, all premium theretofore paid or payable shall be fully earned;

(b) If the named insured cancels, the earned premium for such period shall be computed in accordance with the customary annual short rate table and procedure, provided if the named insured cancels after knowledge of bodily injury or property damage caused by the nuclear energy hazard, all premiums theretofore paid or payable shall be fully earned;

(c) If the companies cancel, the earned premium for such period shall be computed pro rata.

Premium adjustment, if any, may be made either at the time cancellation is effected or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation.

16. Company representation. (a) Any notice, sworn statement or proof of loss which may be required by the provisions of this policy may be given to any one of the companies, and such notice, statement or proof of loss so given shall be valid and binding as to all companies.

(b) In any action or suit against the companies, service of process may be made on any one of them, and such service shall be deemed valid and binding service on all companies.

(c) __________ is the agent of the companies with respect to all matters pertaining to this insurance. All notices or other communications required by this policy to be given to the companies may be given to such agent, at its office at __________ with the same force and effect as if given directly to the companies. Any requests, demands or agreements made by such agent shall be deemed to have been made directly by the companies.

17. Authorization of named insured. Except with respect to compliance with the obligations imposed on the insured by Conditions 5, 6, 7, 8, 9, 10 and 11 of this policy, the named insured is authorized to act for every other insured in all matters pertaining to this insurance.

18. Changes in subscribing companies and in their proportionate liability. By acceptance of this policy the named insured agrees that the members of __________ liable under this policy, and the proportionate liability of each such member, may change from year to year, and further agrees that regardless of such changes:

(1) Each company subscribing this policy upon its issuance shall be liable only for its stated proportion of any obligation assumed or expense incurred under this policy because of bodily injury or property damage caused, during the period from the effective date of this policy to the close of December 31 next following, by the nuclear energy hazard; for each subsequent calendar year, beginning January 1 next following the effective date of this policy, the subscribing companies and the proportionate liability of each such company shall be stated in an endorsement issued to form a part of this policy, duly executed and attested by the __________ of ________________________ on behalf of each such company, and mailed or delivered to the named insured;

(2) This policy shall remain continuously in effect from the effective date stated in the declarations until terminated in accordance with Condition 3 or Condition 15;

(3) Neither the liability of any company nor the limit of liability stated in the declarations shall be cumulative from year to year.

19. Declarations. By acceptance of this policy the named insured agrees that the statements in the declarations are the agreements and representations of the named insured, that this policy is issued in reliance upon the truth of such representations and that this policy embodies all agreements between the named insured and the companies or any of their agents relating to this insurance.

In Witness Whereof, each of the subscribing companies has caused this policy to be executed and attested on its behalf by the ________ of ____________________ and duly countersigned on the declarations page by an authorized representative.

For the subscribing companies.

By __________________________ Subscribing Companies Proportion of 100% Nuclear Energy Liability Policy No.________ (Facility Form) Declarations

Item 1. Named Insured ________________.

Address ________________________________. (No. Street Town or City State)

Item 2. Policy Period: Beginning at 12:01 a.m. on the __________ day of ______________, 19____, and continuing through the effective date of the cancellation or termination of this policy, standard time at the address of the named insured as stated herein.

Item 3. Description of the Facility:

Location Type

The Operator of the facility is ________.

Item 4. The limit of the companies' liability is $______ subject to all the terms of this policy having reference thereto.

Item 5. Advance Premium $______.

Item 6. These declarations and the schedules forming a part hereof give a complete description of the facility, insofar as it relates to the nuclear energy hazard, except as noted ____________________________________

Date of Issue ____________, 19____.

Countersigned by __________________________ (Authorized representative) Nuclear Energy Liability Policy (Facility Form) Amendment of Transportation Coverage (Indemnified Nuclear Facility)

It is agreed that the definition of insured shipment in Insuring Agreement III is amended to read: insured shipment means a shipment of source material, special nuclear material, spent fuel or waste, herein called material, (1) to the facility from any location except an indemnified nuclear facility, but only if the transportation of the material is not by predetermination to be interrupted by removal of the material from a transporting conveyance for any purpose other than the continuation of its transportation, or (2) from the facility to any other location, but only until the material is removed from a transporting conveyance for any purpose other than the continuation of its transportation.

Effective date of this endorsement ______ to form a part of Policy No. ______.

Issued to ______________________________ Date of Issue __________________________.

For the subscribing companies.

By ______________________________ Countersigned by __________________________ Endorsement No. ______________. Optional Amendatory Endorsement (Facility Form)

It is agreed that:

I. The first sentence of the definition of nuclear facility is amended to read:

nuclear facility means the facility as defined in any Nuclear Energy Liability Policy (Facility Form) issued by __________ or by ________________.

II. The definition of indemnified nuclear facility is replaced by the following:

indemnified nuclear facility means

(1) the facility as defined in any Nuclear Energy Liability Policy (Facility Form) issued by ________ or by ________ or

(2) any other nuclear facility,

if financial protection is required pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof; with respect to any activities or operations conducted thereat:

III. Condition 4 is replaced by the following:

Limitation of liability; common occurrence. Any occurrence or series of occurrences resulting in bodily injury or property damage arising out of the radioactive, toxic, explosive, or other hazardous properties of

(a) nuclear material discharged or dispersed from the facility over a period of days, weeks, months or longer and also arising out of such properties of other nuclear material so discharged or dispersed from one or more other nuclear facilities insured under any Nuclear Energy Liability Policy (Facility Form) issued by ____________ or,

(b) source material, special nuclear material, spent fuel or waste in the course of transportation for which insurance is afforded under this policy and also arising out of such properties of other source material, special nuclear material, spent fuel or waste in the course of transportation for which insurance is afforded under one or more other Nuclear Energy Liability Policies (Facility Form) issued by ________________.

shall be deemed to be a common occurrence resulting in bodily injury or property damage caused by the nuclear energy hazard.

With respect to such bodily injury and property damage (1) the total aggregate liability of the members of ________, under all Nuclear Energy Liability Policies (Facility Form), including this policy, applicable to such common occurrence shall be the sum of the limits of liability of all such policies, the limit of liability of each such policy being as determined by Condition 3 thereof, but in no event shall such total aggregate liability of such members exceed $________; 1 (2) the total liability of the companies under this policy shall not exceed that proportion of the total aggregate liability of the members of ________, as stated in clause (1) above, which (a) the limit of liability of this policy, as determined by Condition 3, bears to (b) the sum of the limits of liability of all such policies issued by such members the limit of liability of each such policy being as determined by Condition 3 thereof.

1 For policies issued by Nuclear Energy Liability-Property Insurance Association the amount will be “$124,000,000,” for policies issued by Mutual Atomic Energy Liability Underwriters, the amount will be “$36,000,000.”

The provisions of this condition shall not operate to increase the limit of the companies' liability under this policy.

IV. The second paragraph of Condition 12 Other Insurance is amended to read:

If the insured has other valid and collectible insurance (other than such concurrent insurance or any other nuclear energy liability insurance issued by ________ or to any person or organization) applicable to loss or expense covered by this policy the insurance afforded by this policy shall be excess insurance over such other insurance; provided, with respect to any person who is not employed at and in connection with the facility, such insurance as is afforded by this policy for bodily injury to an employee of the insured arising out of and in the course of his employment shall be primary insurance under such other insurance.

Nuclear Energy Liability Policy (Facility Form) Restoration of Limit of Liability Endorsement

It is agreed that:

1. Payments made by the companies under this policy have reduced the limit of the companies' liability, stated in Item 4 of the declarations, to $________.

2. Such reduced limit is restored to the amount stated in Item 4 of the declarations. Such restored limit applies to obligations assumed or expenses incurred because of bodily injury or property damage caused during the period from the effective date of this endorsement to the termination of the policy, by the nuclear energy hazard.

Note:

When the reduction of the limit of liability results from a clearly identifiable nuclear event and restoration is offered retroactive to the effective date of the policy for claims other than those resulting from said event, above paragraph 2 will be replaced by the following:

2. Such reduced limit is restored to the amount stated in Item 4 of the declarations, except with respect to bodily injury or property damage resulting from (describe nuclear event).

3. The reduced limit of liability stated in paragraph 1 above, and the limit of liability stated in Item 4 of the declarations, as restored by this endorsement, shall not be cumulative; and each payment made by the companies after the effective date of this endorsement for any loss or expense covered by the policy shall reduce by the amount of such payment both the reduced limit of liability stated in paragraph 1 above and the limit of liability stated in Item 4 of the declarations, as restored by this endorsement, regardless of which limit of liability applies with respect to bodily injury or property damage out of which such loss or expense arises.

Effective date of this endorsement ______to form a part of Policy No. ________

Issued to ____________.

Date of Issue ____________.

For the subscribing companies

By ________________ Countersigned by __________________________ Endorsement No. ______. Nuclear Energy Liability Policy (Facility Form) Amendatory Endorsement

This policy does not apply to bodily injury or property damage with respect to which the insured is entitled to indemnity from the United States Nuclear Regulatory Commission under the provisions of Indemnity Agreement No. ______ between the United States Nuclear Regulatory Commission and __________, dated __________, as now in effect or as hereafter amended.

Effective date of this endorsement to form a part of Policy No.

Issued to __________.

Date of issue __________.

For the subscribing companies ________

By __________________________ Countersigned by ____________________________ Endorsement No. ______. Nuclear Energy Liability Policy (Facility Form) Waiver of Defenses Endorsement (Extraordinary Nuclear Occurrence)

The named insured, acting for himself and every other insured under the policy, and the members of ________________________ agree as follows:

1. With respect to any extraordinary nuclear occurrence to which the policy applies as proof of financial protection and which—

(a) Arises out of or results from or occurs in the course of the construction, possession, or operation of the facility, or

(b) Arises out of or results from or occurs in the course of the transportation of nuclear material to or from the facility, the insureds and the companies agree to waive

(1) Any issue or defense as to the conduct of the claimant or the fault of the insureds, including, but not limited to:

(i) Negligence,

(ii) Contributory negligence,

(iii) Assumption of risk, and

(iv) Unforeseeable intervening causes whether involving the conduct of a third person or an act of God,

(2) Any issue or defense as to charitable or governmental immunity, and

(3) Any issue or defense based on any statue of limitations if suit is instituted within 3 years from the date on which the claimant first knew, or reasonably could have known, of his bodily injury or property damage and the cause thereof, but in no event more than 10 years after the date of the nuclear incident.

The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action.

2. The waivers set forth in paragraph 1 above do not apply to

(a) Bodily injury or property damage which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant;

(b) Bodily injury sustained by any claimant who is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits therefor are either payable or required to be provided under any workmen's compensation or occupational disease law;

(c) Any claim for punitive or exemplary damages, provided, with respect to any claim for wrongful death under any State law which provides for damages only punitive in nature, this exclusion does not apply to the extent that the claimant has sustained actual damages, measured by the pecuniary injuries resulting from such death but not to exceed the maximum amount otherwise recoverable under such law.

3. The waivers set forth in paragraph 1 above shall be effective only with respect to bodily injury or property damage to which the policy applies under its terms other than this endorsement.

Such waivers shall not apply to, or prejudice the prosecution or defense of any claim or portion of claim which is not within the protection afforded under—

(1) The provisions of the policy applicable to the financial protection required of the named insured,

(2) The agreement of indemnification between the named insured and the Nuclear Regulatory Commission made pursuant to section 170 of the Atomic Energy Act of 1954, as amended, and

(3) The limit of liability provisions of subsection 170 e. of the Atomic Energy Act of 1954, as amended.

Such waivers shall not preclude a defense based upon the failure of the claimant to take reasonable steps to mitigate damages.

4. Subject to all of the limitations stated in this endorsement and in the Atomic Energy Act of 1954, as amended, the waivers set forth in paragraph 1 above shall be judicially enforceable in accordance with their terms against any insured in an action to recover damages because of bodily injury or property damage to which the policy applies as proof of financial protection.

5. As used herein:

Extraordinary nuclear occurrence means an event which the Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, as amended, financial protection and nuclear incident have the meanings given them in the Atomic Energy Act of 1954, as amended.

Claimant means the person or organization actually sustaining the bodily injury or property damage and also includes his assignees, legal representatives and other persons or organizations entitled to bring an action for damages on account of such injury or damage.

Nuclear Energy Liability Policy (Facility Form) Amendatory Endorsement (Application of Policy)

It is agreed that insuring agreement IV of the policy, captioned Application of Policy is amended to read as follows: Application of Policy. This policy applies only to bodily injury or property damage: (1) Which is caused during the policy period by the nuclear energy hazard, and (2) which is discovered and for which written claim is made against the insured, not later than 10 years after the end of the policy period.

Nuclear Energy Liability Policy (Facility Form) Waiver of Defense Endorsement (Extraordinary Nuclear Occurrence) The named insured, acting for himself and every other insured under the policy, and the members of agree as follows:

1. With respect to any extraordinary nuclear occurrence to which the policy applies as proof of financial protection and which

(a) Arises out of or results from or occurs in the course the construction, possession, or operation of the facility, or

(b) Arises out of or results from or occurs in the course of the transportation of nuclear material to or from the facility.

the insured and the companies agree to waive.

(1) Any issue or defense as to the conduct of the claimant or the fault of the insureds, including but not limited to:

(i) Negligence,

(ii) Contributory negligence,

(iii) Assumption of risk, and

(iv) Unforeseeable intervening causes, whether involving the conduct of a third person, or an act of God,

(2) Any issue or defense as to charitable or governmental immunity, and

(3) Any issue or defense based on any statute of limitations if suit is instituted within three (3) years from the date on which the claimant first knew, or reasonably could have known, of his bodily injury or property damage and the cause thereof, but in no event more than twenty (20) years after the date of the nuclear incident.

The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action.

2. The waivers set forth in paragraph 1. above do not apply to

(a) Bodily injury or property damage which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant;

(b) Bodily injury sustained by any claimant who is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits therefor are either payable or required to be provided under any workmen's compensation or occupational disease law;

(c) Any claim for punitive or exemplary damages, provided, with respect to any claim for wrongful death under any State law which provides for damages only punitive in nature, this exclusion does not apply to the extent that the claimant has sustained actual damages, measured by the pecuniary injuries resulting from such death but not to exceed the maximum amount otherwise recoverable under such law.

3. The waivers set forth in paragraph 1. above shall be effective only with respect to bodily injury or property damage to which the policy applies under its terms other than this endorsement; provided, however, that with respect to bodily injury or property damage resulting from an extraordinary nuclear occurrence. Insuring Agreement IV, “Application of Policy,” shall not operate to bar coverage for bodily injury or property damage (a) which is caused during the policy period by the nuclear energy hazard and (b) which is discovered and for which written claim is made against the insured not later than twenty (20) years after the date of the extraordinary nuclear occurrence.

Such waivers shall not apply to, or prejudice the prosecution or defense of any claim or portion of claim which is not within the protection afforded under

(a) The provisions of the policy applicable to the financial protection required of the named insured;

(b) The agreement of indemnification between the named insured and the Nuclear Regulatory Commission made pursuant to section 170 of the Atomic Energy Act of 1954, as amended; and

(c) The limit of liability provisions of Subsection 170e. of the Atomic Energy Act of 1954, as amended.

Such waivers shall not preclude a defense based upon the failure of the claimant to take reasonable steps to mitigate damages.

4. Subject to all of the limitations stated in this endorsement and in the Atomic Energy Act of 1954, as amended, the waivers set forth in paragraph 1. above shall be judicially enforceable in accordance with their terms against any insured in an action to recover damages because of bodily injury or property damage to which the policy applies as proof of financial protection.

5. As used herein:

Extraordinary nuclear occurrence means an event which the Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, as amended.

Financial protection and nuclear incident have the meanings given them in the Atomic Energy Act of 1954, as amended.

Claimant means the person or organization actually sustaining the bodily injury or property damage and also includes his assignees, legal representatives and other persons or organizations entitled to bring an action for damages on account of such injury or damage.

Effective date of this endorsement ________________________ to form a part of Policy No. ______________,

12:01 A.M. Standard Time

Issued to __________________________________.

Date of issue ______________.

Endorsement No. ______________.

For the subscribing companies:

By ______________________,

General Manager

Countersigned by ________________________.

Supplementary Endorsement Waiver of Defenses Reactor Construction at the Facility

It is agreed that in construing the application of paragraph 2.(b) of the Waiver of Defenses Endorsement (NE-33a) with respect to an extraordinary nuclear occurrence occurring at the facility, a claimant who is employed at the facility in connection with the construction of a nuclear reactor with respect to which no operating license has been issued by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the extraordinary nuclear occurrence takes place if:

(1) The claimant is employed exclusively in connection with the construction of a nuclear reactor, including all related equipment and installations at the facility and

(2) No operating license has been issued by the Nuclear Regulatory Commission with respect to the nuclear reactor, and

(3) The claimant is not employed in connection with the possession, storage, use or transfer of nuclear material at the facility.

Effective date of this endorsement ________________________ to form a part of Policy No. ______________.

12:01 A.M. Standard Time

Issued to __________________________________.

Date of issue ______________.

Endorsement No ______________.

For the subscribing companies:

By ______________________,

General Manager

Countersigned by ______________________.

Nuclear Energy Liability Policy (Facility Form) Amendment of Definition of Nuclear Energy Hazard (Indemnified Nuclear Facility)

It is agreed that: 1. Solely with respect to an insured shipment to which the policy applies as proof of financial protection required by the Nuclear Regulatory Commission, subdivision (2) of the definition of nuclear energy hazard is amended to read:

(2) The nuclear material is in an insured shipment which is away from any other nuclear facility and is in the course of transportation, including handling and temporary storage incidental thereto, within

(a) The territorial limits of the United States of America, its territories or possessions, Puerto Rico or the Canal Zone; or

(b) International waters or airspace, provided that the nuclear material is in the course of transportation between two points located within the territorial limits described in (a) above and there are no deviations in the course of the transportation for the purpose of going to any other country, state or nation, except a deviation in the course of said transportation for the purpose of going to or returning from a port or place of refuge as the result of an emergency.

2. As used herein, financial protection has the meaning given it in the Atomic Energy Act of 1954, as amended.

Instructions—This form is to be used to modify all Nuclear Energy Liability Facility Forms in force on January 1, 1977 which were issued to become effective prior to January 1, 1977 and which are offered by the named insured as proof of financial protection being maintained as required by the Atomic Energy Act of 1954, as amended.

Effective date of this Endorsement ________________________ To form a part of Policy No. ______________.

12:01 A.M. Standard Time

Issued to __________________________________

Date of issue ______________.

Endorsement No. ______________.

For the subscribing companies:

By ______________________,

General Manager

Countersigned by ________________________.

Nuclear Energy Liability Policy (Facility Form) Amendment of Definitions of Nuclear Energy Hazard and Insured Shipment (Indemnified Nuclear Facility)

It is agreed that: I. In Insuring Agreement III, DEFINITIONS

A. Solely with respect to an insured shipment to which this policy applies as proof of financial protection required by the Nuclear Regulatory Commission, Subdivision (2) of the definition of nuclear energy hazard is amended to read:

(2) The nuclear material is in an insured shipment which is away from any other nuclear facility and is in the course of transportation, including the handling and temporary storage incidental thereto, within

(a) The territorial limits of the United States of America, its territories or possessions, Puerto Rico or the Canal Zone; or

(b) International waters or airspace, provided that the nuclear material is in the course of transportation between two points located within the territorial limits described in (a) above and there are no deviations in the course of the transportation for the purpose of going to any other country, state or nation, except for a deviation in the course of said transportation for the purpose of going to or returning from a port or place of refuge as the result of an emergency.

B. The definition of insured shipment is replaced with the following:

Insured shipment means a shipment of source material, special nuclear material, spent fuel or waste, herein called material, (1) to the facility from any location except an indemnified nuclear facility, but only if the transportation of the material is not by predetermination to be interrupted by removal of the material from a transporting conveyance for any purpose other than the continuation of its transportation, or (2) from the facility to any other location, but only until the material is removed from a transporting conveyance for any purpose other than the continuation of its transportation.

II. As used herein, financial protection has the meaning given it in the Atomic Energy Act of 1954, as amended.

Instructions—This form is to be used to modify all Nuclear Energy Liability Facility Forms which are issued to become effective on or after January 1, 1977 and which are offered by the named insured as proof of financial protection being maintained as required by the Atomic Energy Act of 1954, as amended.

Effective date of this endorsement ____________________ To form a part of Policy No. ______________.

12:01 A.M. standard time

Issued to ________________________.

Date of issue ______________.

Endorsement No. ______________.

For the subscribing companies:

By ________________________,

General Manager.

Countersigned by ______________________.

NE-50 (1/1/80), Amendatory Endorsement (Indemnified Nuclear Facility)

It is agreed that:

I. In Insuring Agreement III:

DEFINITIONS

A. The first sentence of the definition of nuclear facility is amended to read: nuclear facility means the facility as defined in any Nuclear Energy Liability Policy (Facility Form) issued by Nuclear Energy Liability Insurance Association or by Mutual Atomic Energy Liability Underwriters.

B. The definition of indemnified nuclear facility is replaced by the following: indemnified nuclear facility means

(1) the facility as defined in any Nuclear Energy Liability Policy (Facility Form) issued by Nuclear Energy Liability Insurance Association or by Mutual Atomic Energy Liability Underwriters, or

(2) any other nuclear facility, if financial protection is required pursuant to the Atomic Energy Act of 1954, or any law amendatory thereof, with respect to any activities or operations conducted thereat;

C. Solely with respect to an insured shipment to which this policy applies as proof of financial protection required by the Nuclear Regulatory Commission. Subdivision (2) of the definition of nuclear energy hazard is amended to read:

(2) The nuclear material is in an insured shipment which is away from any other nuclear facility and is in the course of transportation, including the handling and temporary storage incidental thereto, within

(a) The territorial limits of the United States of America, its territories or possessions, or Puerto Rico; or Canal Zone; or

(b) International waters or airspace, provided that the nuclear material is in the course of transportation between two points located within the territorial limits described in (a) above and there are no deviations in the course of the transportation for the purpose of going to any other country, state or nation, except a deviation in the course of said transportation for the purpose of going to or returning from a port or place of refuge as the result of an emergency.

D. The definition of insured shipment is replaced with the following:

insured shipment means shipment of source material, special nuclear material, spent fuel or waste, or tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content, herein called material, (1) to the facility from any location except an indemnified nuclear facility, but only if the transportation of the material is not by predetermination to be interrupted by removal of the material from a transporting conveyance for any purpose other than the continuation of its transportation, or (2) from the facility to any other location, but only until the material is removed from a transporting conveyance for any purpose other than the continuation of its transportation.

E. As used herein, financial protection has the meaning given it in the Atomic Energy Act of 1954, as amended.

II. Insuring Agreement IV is replaced by the following:

IV. APPLICATION OF POLICY. This policy applies only to bodily injury or property damage (1) which is caused during the policy period by the nuclear energy hazard and (2) which is discovered and for which written claim is made against the insured, not later than ten years after the end of the policy period.

III. Condition 2 is replaced by the following:

2. INSPECTION: SUSPENSION. The companies shall at any time be permitted but not obligated to inspect the facility and all operations relating thereto and to examine the insured's books and records as far as they relate to the subject of this insurance and any property insurance afforded the insured through American Nuclear Insurers. If a representative of the companies discovers a condition which he believes to be unduly dangerous with respect to the nuclear energy hazard, a representative of the companies may request that such condition be corrected without delay. In the event of noncompliance with such request, a representative of the companies may, by notice to the named insured, to any other person or organization considered by the companies to be responsible for the continuation of such dangerous condition, and to the United States Nuclear Regulatory Commission, suspend this insurance with respect to named insured and such other person or organization effective 12:00 midnight of the next business day of such Commission following the date that such Commission receives such notice. The period of such suspension shall terminate as of the time stated in a written notice from the companies to the named insured and to each such person or organization that such condition has been corrected.

Neither the right to make such inspections and examinations nor the making thereof nor any advice or report resulting therefrom shall constitute an undertaking, on behalf of or for the benefit of the insured or others, to determine or warrant that such facility or operations are safe or healthful, or are in compliance with any law, rule or regulation. In consideration of the issuance or continuation of this policy, the insured agrees that neither the companies nor any pesons or organizations making such inspections or exminations on their behalf shall be liable with respect to injury to or destruction of property at the facility, or any consequential loss or expense resulting therefrom, or any loss resulting from interruption of business or manufacture, arising out of the making of or a failure to make any such inspection or examination, or any report thereon, or any such suspension of insurance, but this provision does not limit the contractual obligations of the companies under this policy or any policy affording the insured property insurance through American Nuclear Insurers.

IV. Condition 4 is replaced by the following:

4. LIMITATION OF LIABILITY: COMMON OCCURRENCE. Any occurrence or series of occurrences resulting in bodily injury or property damage arising out of the radioactive, toxic, explosive or other hazardous properties of

(a) nuclear material discharged or dispersed from the facility over a period of days, weeks, months or longer and also arising out of the properties of other nuclear material so discharged or dispersed from one or more other nuclear facilities insured under any Nuclear Energy Liability Policy (Facility Form) issued by Nuclear Energy Liability Insurance Association, or

(b) source material, special nuclear material, spent fuel or waste in the course of transportation for which insurance is afforded under this policy and also arising out of such properties of other source material, special nuclear material, spent fuel or waste in the course of transportation for which insurance is afforded under one or more other Nuclear Energy Liability Policies (Facility Form) issued by Nuclear Energy Liability Insurance Association, shall be deemed to be a common occurrence resulting in bodily injury or property damage caused by the nuclear energy hazard.

With respect to such bodily injury and property damage (1) the total aggregate liability of the members of the Nuclear Energy Liability Insurance Association under all Nuclear Energy Liability Policies (Facility Form), including this policy, applicable to such common occurrence shall be the sum of the limits of liability of all such policies, the limit of liability of each such policy being as determined by Condition 3 thereof, but in no event shall such total aggregate liability of such members exceed $124,000,000; (2) the total liability of the companies under this policy shall not exceed that proportion of the total aggregate liability of the members of Nuclear Energy Liability Insurance Association, as stated in clause (1) above, which (a) the limit of liability of this policy, as determined by Condition 3, bears to (b) the sum of the limits of liability of all such policies issued by such members, the limit of liability of each such policy being as determined by Condition 3 thereof.

The provisions of this condition shall not operate to increase the limit of the companies' liability under this policy.

V. The second paragraph of Condition 12, Other Insurance, is amended to read:

If the insured has other valid and collectible insurance (other than such concurrent insurance or any other nuclear energy liability insurance issued by Nuclear Energy Liability Insurance Association or Mutual Atomic Energy Liability Underwriters to any person or organization) applicable to loss or expense covered by this policy, the insurance afforded by this policy shall be excess insurance over such other insurance; provided, with respect to any person who is not employed at and in connection with the facility, such insurance as is afforded by this policy for bodily injury to an employee of the insured arising out of and in the course of his employment shall be primary insurance under such other insurance.

VI. Paragraph (c) of Condition 16, Company Representation, is amended to read:

(c) Nuclear Energy Liability Insurance Association is the agent of the companies with respect to all matters pertaining to this insurance. All notices or other communications required by this policy to be given to the companies may be given to such agent, at its office at the Exchange, Suite 245, 270 Farmington Avenue, Farmington, Connecticut 06032, with the same force and effect as if given directly to the companies. Any requests, demand or agreements made by such agent shall be deemed to have been made directly by the companies.

Effective Date of this Endorsement ________ 12:01 a.m. Standard Time to form a part of policy No. ______.

Issued to ________ For the subscribing companies.

Date of Issue ________.

By ________ General Manager.

Endorsement No. NE-50 (1/1/81) NE-51 (1/1/81)—Amendment of Definition of Condition 2 Inspection; Suspension and Insured Shipment (Indemnified Nuclear Facility)

It is agreed that:

(1) Condition 2 Inspection; Suspension is replaced by the following:

2. Inspection; Suspension. The companies shall at any time be permitted but not obligated to inspect the facility and all operations relating thereto and to examine the insured's books and records as far as they relate to the subject of this insurance and any property insurance afforded the insured through American Nuclear Insurers. If a representative of the companies discovers a condition which he believes to be unduly dangerous with respect to the nuclear energy hazard, a representative of the companies may request that such conditions be corrected without delay. In the event of noncompliance with such requests, a representative of the companies may, by notice to the named insured, to any other person or organization considered by the companies to be responsible for the continuation of such dangerous condition, and to the United States Nuclear Regulatory Commission, suspend this insurance with respect to the named insured and such other person or organization effective 12:00 midnight of the next business day of such Commission following the date that such Commission receives such notice. The period of such suspension shall terminate as of the time stated in a written notice from the companies to the named insured and to each such person or organization that such condition has been corrected.

Neither the right to make such inspections and examinations nor the making thereof nor advice or report resulting therefrom shall constitute an undertaking, on behalf of or for the benefit of the insured or others, to determine or warrant that such facility or operations are safe or healthful, or are in compliance with any law, rule or regulation. In consideration of the issuance or continuation of this policy, the insured agrees that neither the companies nor any persons or organizations making such inspections or examinations on their behalf shall be liable with respect to injury to or destruction of property at the facility, or any consequential loss or expense resulting therefrom, or any loss resulting from interruption of business or manufacture, arising out of the making of or a failure to make any such inspection or examination, or any report thereon, or any such suspension of insurance, but this provision does not limit the contractual obligations of the companies under this policy or any policy affording the insured property insurance through American Nuclear Insurers.

(2) The definition of insured shipment in Insuring Agreement III, Definitions, is replaced by the following: insured shipment means a shipment of source material, special nuclear material, spent fuel, waste, or tailings or wastes produced by the extraction or concentration of uranium or thorium from any ore processed primarily for its source material content herein called material, (1) to the facility from any location except an indemnified nuclear facility, but only if the transportation of the material is not by predetermination to be interrupted by removal from a transporting conveyance for any purpose other than the continuation of its transportation, or (2) from the facility to any other location, but only until the material is removed from a transporting conveyance for any purpose other than the continuation of its transportation.

Effective Date of this Endorsement ________ 12:01 a.m. Standard Time to form a part of Policy No. ______

Issued to ________ For the subscribing companies.

Date of Issue ________.

By ________ General Manager.

Endorsement No. NE-51 (1/1/81) Amendment of Coverage Endorsement for Workers Claims (Facility Form) NE-64(1/1/88) Preamble

1. The insurance and rating plan presently used by Nuclear Energy Liability Insurance Association (NELIA) and Mutual Atomic Energy Liability Underwriters (MAELU) do not make a distinction between workers claims arising from catastrophic events and those arising from lesser events;

2. NELIA and MAELU believe that the lack of such a distinction will adversely affect their ability to continue to attract from world markets very large amounts of nuclear energy liability insurance for the nuclear industry;

3. NELIA and MAELU want to avoid this potential loss of capacity and to continue to provide nuclear energy liability insurance for workers claims. Accordingly NELIA and MAELU desire to restructure their present insurance programs, including this policy, effective January 1, 1988.

Now, Therefore, the Named Insured and the companies do hereby agree as follows:

1. Definitions

When used in reference to this endorsement:

This policy means the policy of which this endorsement forms a part;

Nuclear related employment means all work performed at one or more than one nuclear facility in the United States of America or in connection with the transportation of nuclear material to or from any such facility. All of a worker's nuclear related employment shall be considered as having begun on the first day of such employment, regardless of the number of employers involved or interruptions in such employment;

Worker refers to a person who is or was engaged in nuclear related employment;

Workers claims means claims for damages because of bodily injury to a worker caused by the radioactive, toxic, explosive or other hazardous properties of nuclear material and arising out of or in the course of the worker's nuclear related employment;

Extraordinary nuclear occurrence means an event which the United States Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, or in any law amendatory thereof.

2. Application of This Endorsement

This endorsement applies only to such insurance as is afforded by this policy for workers claims which do not arise in whole or in part out of an extraordinary nuclear occurrence.

3. Exclusion of New Workers Claims

This policy does not apply to bodily injury to a worker which arises in whole or in part out of nuclear related employment that begins on or after January 1, 1988.

4. Application of Policy to Workers Claims Not Excluded

With respect to such insurance as is afforded by this policy for workers claims which are not excluded, Insuring Agreement IV does not apply and the following Insuring Agreement IV-A does apply:

IV-A Application of Policy to Workers Claims. This policy applies only to bodily injury (1) which is caused during the policy period by the nuclear energy hazard and (2) which is discovered and for which written claim is made against the insured not later than the close of December 31, 1997.

5. Availability of Supplemental Insurance

NELIA and MAELU are offering to make insurance under one or more Master Worker Policies available to all holders of Nuclear Energy Liability Policies (Facility Form). This offer is contingent on sufficient support from policy holders, and may be withdrawn or modified by Nelia or Maelu as they deem necessary or appropriate.

The Master Workers Policies will provide, under their separate terms and conditions, coverage for new workers claims. Premiums will be subject to a separate Industry Retrospective Rating Plan.

Coverage under the new master worker policies is not automatic. A written request must be submitted to Nelia or Maelu through regular market channels.

It is understood and agreed that all of the provisions of this endorsement shall remain in full force and effect without regard to this section 5, and without regard to whether or not the Named Insureds become insureds under the Master Worker Policies, or whether or not NELIA or MAELU terminate such policies or withdraw or modify their offer to underwrite such policies.

Executed for the companies Date By (Signature or Authorized Officer) (Print or Type Name and Title of Officer) Executed for the Named Insured (Named Insured—Type or Print) Date By (Signature of Authorized Officer) (Print or Type Name and Title of Officer) Effective Date of this Endorsement 12:01 a.m. Standard Time To form a part of Policy No. Issued to Date of Issue For the subscribing companies By General Manager Endorsement No. Countersigned by AMENDMENT OF COVERAGE ENDORSEMENT FOR WORKERS CLAIMS (Facility Form) NE-66(1/1/88)

It is agreed that:

1. Definitions

When used in reference to this endorsement:

This policy means the policy of which this endorsement forms a part;

Nuclear related employment means all work performed at one or more than one nuclear facility in the United States of America or in connection with the transportation of nuclear material to or from any such facility. All of a worker's nuclear related employment shall be considered as having begun on the first day of such employment, regardless of the number of employers involved or interruptions in such employment;

Worker refers to a person who is or was engaged in nuclear related employment;

Workers claims means claims for damages because of bodily injury to a worker caused by the radioactive, toxic, explosive or other hazardous properties of nuclear material and arising out of or in the course of the worker's nuclear related employment;

Extraordinary nuclear occurrence means an event which the United States Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, or in any law amendatory thereof.

2. Application of This Endorsement

This endorsement applies only to such insurance as is afforded by this policy for workers claims which do not arise in whole or in part out of an extraordinary nuclear occurrence.

3. Exclusion of New Workers Claims

This policy does not apply to bodily injury to a worker which arises in whole or in part out of nuclear related employment that begins on or after January 1, 1988.

4. Application of Policy to Workers Claims Not Excluded

With respect to such insurance as is afforded by this policy for workers claims which are not excluded, Insuring Agreement IV does not apply and the following Insuring Agreement IV-A does apply:

IV-A Application of Policy to Workers Claims

This policy applies only to bodily injury (1) which is caused during the policy period by the nuclear energy hazard and (2) which is discovered and for which written claim is made against the insured not later that the close of December 31, 1997.

5. Availability of Supplemental Insurance

NELIA and MAELU are offering to make insurance under one or more Master Worker Policies available to all holders of Nuclear Energy Liability Policies (Facility Form). This offer is contingent on sufficient support from policyholders, and may be withdrawn or modified by NELIA or MAELU as they deem necessary or appropriate.

The Master Worker Policies will provide, under their separate terms and conditions, coverage for new workers claims. Premiums will be subject to a separate Industry Retrospective Rating Plan.

Coverage under the new master worker policies is not automatic. A written request must be submitted to NELIA or MAELU through regular market channels.

It is understood and agreed that all of the provisions of this endorsement shall remain in full force and effect without regard to this Section 5, and without regard to whether or not the Named Insureds become insureds under the Master Worker Policies, or whether or not NELIA or MAELU terminate such policies or withdraw or modify their offer to underwrite such policies.

Explanation of Use of This Endorsement: This endorsement is a mandatory endorsement which is to be attached to new Facility Form Policies issued on or after January 1, 1988.

Effective Date of this Endorsement 12:01 a.m. Standard Time To form a part of Policy No. Issued to Date of Issue For the subscribing companies By General Manager Endorsement No. Countersigned by NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION Nuclear Energy Liability Policy Facility Worker Form, herein called Master Worker Policy, NMWP-1(1/1/88)

The undersigned members of Nuclear Energy Liability Insurance Association, hereinafter called the companies, each itself severally and not jointly, and in the respective proportion hereinafter set forth, agree with the insureds named in Item 1 of the Declarations of each Certificate, hereinafter called the Named Insureds, in consideration of the payment of the premium, and subject to all of the provisions of the applicable Certificate and of this policy, as follows:

I—Relation Between the Master Worker Policy and Certificates

No insurance is provided by this policy except through a Certificate issued to form a part hereof. The insurance then applies separately to the persons and organizations who are defined in Section IV as insureds under each such Certificate, except with respect to the Amount of Insurance Available.

The Amount of Insurance Available through such a Certificate to any person or organization who is an insured thereunder is limited as provided in Section VIII of this policy.

II—Definitions

When used in reference to this policy:

Bodily injury means bodily injury, sickness or disease, including death resulting therefrom;

Byproduct material has the meaning given in the Atomic Energy Act of 1954, or in any law amendatory thereof;

Certificate, unless qualified, refers to a Certificate of Insurance (including Declarations and endorsements forming a part thereof) issued to form a part of this policy or of a MAELU Policy;

Claims costs means, with reference to claims or suits the companies have the right and duty to defend under this policy;

(1) Cost taxed against the insured in such suits and interest on any judgments therein;

(2) Premiums on appeal bonds and on bonds to release attachments in such suits (but the companies have no obligation to apply for or furnish such bonds;

(3) Reasonable expenses, other than loss of earnings, incurred by the insured at the companies' request;

(4) Payments for expenses incurred in the investigation, negotiation, settlement and defense of such claims or suits, including, but not limited to, the cost of such allocated claims services by employees of the companies, fees and expenses of independent adjusters, attorneys' fees and disbursements, expenses for expert testimony, examination, x-ray or autopsy or medical expenses of any kind;

(5) Payments for expenses incurred by the companies in investigating an occurrence resulting in bodily injury or in minimizing its effects;

Discovery period means the period defined in Section VI B hereof;

Extraordinary nuclear occurrence means an event which the United States Nuclear Regulatory Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, or in any law amendatory thereof;

Insured contract means that part of a contract or agreement made prior to bodily injury to a new worker under which the insured assumes the tort liability of a third person to pay damages because of such bodily injury. Tort liability means a liability that would be imposed by law on the third person in the absence of an express assumption of liability by the third person;

Insured facility means a facility with respect to which insurance is provided through a Certificate;

Insured shipment means a shipment of source material, special nuclear material, spent fuel or waste (herein called material):

(1) To the facility from any location other than an insured facility, but only if the transportation of the material is not by predetermination to be interrupted by removal of the material from a transporting conveyance for any purpose other than the continuation of its transportation; or

(2) From the facility to any other location, but only until the material is removed from a transporting conveyance for any purpose other than the continuation of its transportation;

MAELU means Mutual Atomic Energy Liability Underwriters;

MAELU Policy means a Nuclear Energy Liability Policy (Facility Worker Form) written by members of MAELU;

NELIA means Nuclear Energy Liability Insurance Association;

New worker refers to a person who is or was engaged in nuclear related employment that begins on or after January 1, 1988;

New worker's claim means a claim for damages because of bodily injury to a new worker caused by the radioactive, toxic, explosive or other hazardous properties of nuclear material and arising out of or in the course of the new worker's nuclear related employment;

Non-ratable incurred losses has the meaning given in Attachment 1 to this policy;

Nuclear energy hazard means the radioactive, toxic, explosive or other hazardous properties of nuclear material which is:

(1) At the facility as described in the applicable Certificate issued to form a part of this policy or has been discharged or dispersed therefrom without intent to relinquish possession of custody thereof to any other person or organization; or

(2) In an insured shipment that is away from any other insured nuclear facility and is in the course of transportation, including handling and temporary storage incidental thereto within:

(a) The territorial limits of the United States of America, its territories or possessions or Puerto Rico; or

(b) International waters or airspace, provided that:

(i) The nuclear material is in the course of transportation between two points located within the territorial limits described in (a) above; and

(ii) There are no deviations in the course of the transportation for the purpose of going to any other country, state or nation, except to a port or place of refuge in an emergency;

Nuclear facility means any of the following and includes the site on which any of them is located, all operations conducted on such site and all premises used for such operations:

(1) The facility as described in any Certificate;

(2) Any nuclear reactor;

(3) Any equipment or device designed or used for:

(a) Separating the isotopes of uranium or plutonium;

(b) Processing or utilizing spent fuel; or

(c) Handling, processing or packaging waste;

(4) Any equipment or device used for the processing, fabricating or alloying of special nuclear material if at any time the total amount of such material in the custody of the insured at the premises where such equipment of device is located consists of or contains more than 25 grams of plutonium or uranium 233 or any combination thereof, or more than 250 grams of uranium 235;

(5) Any structure, basin, excavation, premises or place prepared or used for the storage or disposal of waste;

Nuclear material means source material, special nuclear material or byproduct material;

Nuclear reactor means any apparatus designed or used to sustain nuclear fission in a self-supporting chain reaction or to contain a critical mass of fissionable material;

Nuclear related employment means all work performed at one or more than one nuclear facility in the United States of America or in connection with the transportation of nuclear material to or from any such facility.

All of a new worker's nuclear related employment shall be considered as having begun on the first day of such employment, regardless of the number of employers involved or interruptions in such employment;

Policy period means the period defined in Section VI A hereof;

Ratable incurred losses has the meaning given in Attachment 1 to this policy;

Source material has the meaning given in the Atomic Energy Act of 1954, or in any law amendatory thereof, and also includes tailings or wastes produced by the extraction of uranium or thorium from ore processed primarily for its source material content;

Special nuclear material has the meaning given in the Atomic Energy Act of 1954, or in any law amendatory thereof;

Spent fuel means any fuel element or fuel component, solid or liquid, which has been used or exposed to radiation in any nuclear reactor;

The facility refers to the facility described in the Declarations of a Certificate. It includes the location described in Item 3 thereof and all property and operations at such location;

Waste means any waste material that contains byproduct material and results from the operation by any person or organization of:

(1) Any nuclear reactor; or

(2) Any equipment or device designed or used for:

(a) Separating the isotopes of uranium or plutonium;

(b) Processing or utilizing spent fuel; or

(c) Handling, processing or packaging such waste material.

III—Coverage

In the event that a new worker's claim is made against a person or organization who is an insured under a Certificate issued to form a part of this policy:

(1) The companies shall pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages because of bodily injury to which this policy applies, sustained by a new worker and caused by the nuclear energy hazard.

The companies shall have the right and duty to defend any suit against the insured alleging such injury and seeking damages payable under the terms of this policy. But the companies may make such investigation and settlement of any claim or suit seeking such damages as they deem appropriate.

(2) The companies shall also pay, as part of the Amount of Insurance Available under this policy, the claims costs relating to any such claim or suit.

(3) The companies' obligation to pay damages and claims costs, and to defend any claim and suit ends when the Policy Aggregrate Limit has been exhausted pursuant to the provisions of Section VIII.

IV—Definition of Insured

When used in reference to a Certificate issued to form a part of this policy, the unqualified word insured means:

(1) each insured named in Item 1 of the Declarations of the Certificate; and

(2) any other person or organization with respect to legal responsibility for damages because of bodily injury to a new worker caused by the nuclear energy hazard applicable to the Certificate. This subsection (2) does not include as an insured the United States of America or any of its agencies except the Tennessee Valley Authority.

V—Exclusions

This policy does not apply:

(1) To any obligation for which the insured or any carrier as his insurer may be held liable under any worker's compensation, unemployment compensation or disability benefits law, or under any similar law;

(2) To bodily injury to any employee of the insured arising out of or in the course of employment by the insured; but this exclusion (2) does not apply to liability assumed by the insured under an insured contract;

(3) To liability assumed by the insured under contract, other than an insured contract;

(4) To bodily injury to a new worker due to the manufacturing, handling or use at the location designated in Item 3 of the Declarations of any Certificate, in time of peace or war, of any nuclear weapon or other instrument of war utilizing special nuclear material or byproduct material;

(5) To bodily injury to a new worker due to war, whether or not declared, civil war, insurrection, rebellion or revolution, or to any act or condition incident to any of the foregoing;

(6) To bodily injury to a new worker arising in whole or in part out of an extraordinary nuclear occurrence.

VI—Policy Period; Discovery Period; Application of Policy A. Policy Period

The policy period of this policy begins at 12:01 a.m. on January 1, 1988 and ends at the close of December 31, 1992, Eastern Standard Time, or when all Certificates issued to form a part hereof have been cancelled, whichever first occurs.

B. Discovery Period

The discovery period for claims made under this policy begins at 12:01 a.m. on January 1, 1988 and ends at the close of December 31, 1997, Eastern Standard Time.

C. Application of Policy

This policy applies only to bodily injury to a new worker (1) which is caused during the policy period by the nuclear energy hazard and (2) which is discovered and for which written claim is first made against the insured within the discovery period.

VII—Other Insurance

A. This insurance is primary insurance under any insurance afforded by a Master Policy-Nuclear Energy Liability Insurance (Secondary Financial Protection) issued by NELIA or MAELU.

B. If an insured has other valid and collectible insurance, except under a MAELU Policy, for loss or expense covered by this policy, this shall be excess insurance over such other insurance. If the insured has insurance under a MAELU Policy, whether the insurance is collectible or not, the companies shall then be liable under this policy only for such proportion of loss or expense as the amount stated as the Policy Aggregate Limit in Section VIII of this policy bears to the sum of such amount and the corresponding amount stated in the MAELU Policy.

VIII—Amount of Insurance Available A. Policy Aggregate Limit

1. The Policy Aggregate Limit is $124 million. This limit is not cumulative from year to year. The limit applies to all new worker's claims that qualify for coverage under this policy (herein called qualified claims).

2. The Policy Aggregate Limit applies collectively to all new worker's claims. Such claims may be paid by NELIA on behalf of the companies as the claims, in NELIA's discretion, become ready for disposition, and claims costs may be paid as they become due, all without regard to the order in which such claims were made and without any obligation to maintain, reserve or use any portion of the Policy Aggregate Limit for claims reported under any particular Certificate.

B. Limitation of the Companies' Liability

1. Regardless of the number of (a) Certificates issued to form a part of this policy, (b) persons and organizations who are insureds under such Certificates, (c) qualified claims, or (d) years this policy or any such Certificates shall continue in force, the Policy Aggregate Limit is the total liability of the companies for all of their obligations under this policy, including the defense of suits and the payment of damages and claims costs.

2. This policy provides for certain automatic reinstatements of the Policy Aggregate Limit. Regardless of such provision, if, during the policy period or thereafter, the total payments of the companies for

(a) Non-ratable incurred losses, and

(b) Those ratable incurred losses for which the companies have not been reimbursed under the Industry Retrospective Rating Plan Premium Endorsement described in Attachment 1 to this policy,

equal $124 million, the Policy Aggregate Limit shall be deemed to be exhausted, and shall not be further reinstated except by an endorsement issued to form a part of this policy for additional premium as determined by the companies.

C. Reduction and Reinstatement of the Policy Aggregate Limit

1. Each payment made by the companies in discharge of their obligations under this policy shall reduce the Policy Aggregate Limit by the amount of such payment.

2. The companies shall, however, automatically reinstate the policy aggregate limit until the total amount of such reinstatements equals $124 million, but in no event shall there be any automatic reinstatements after the Policy Aggregate Limit is exhausted pursuant to the provisions of subsection B.2. above. Thereafter, there shall be no further reinstatement of the Policy Aggregate Limit except by an endorsement issued to form a part of this policy for additional premium as determined by the companies.

3. It is a condition of this insurance that the companies shall have the right to reimburse themselves, as a matter of first priority, from funds held by NELIA in the Special Reserve Account described in Attachment 1 to this policy or from retrospective premiums received by NELIA for this insurance. The amount of reimbursement shall be equal to 95% of each payment made by the companies with respect to their obligations under this policy.

IX—Insured's Duties in Case of Claims or Suits

A. Notice of Claims or Suits

In the event of any claim or suit involving bodily injury to which a Certificate issued to form a part of this policy applies, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof shall be given by or for the insured to the companies as soon as practicable. The insured shall immediately forward to the companies every demand, notice, summons or other process received relating to claims or suits against the insured.

B. Assistance and Cooperation

The insured shall cooperate with the companies and, upon their request, shall:

(1) Attend hearings and trials; and

(2) Assist in making settlements, securing and giving evidence, obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance.

The insured shall not, except at the insured's own cost, make any payment, assume any obligation or incur any expense.

X—Subrogation

In the event of any payment through a Certificate to form a part of this policy, the companies shall be subrogated to all the insured's rights of recovery therefor against any person or organization, and the insured shall execute and deliver instruments and papers, and so whatever else is necessary to secure such rights. Prior to knowledge of bodily injury caused by the nuclear energy hazard the insured may waive in writing any or all right of recovery against any person or organization, but after such knowledge the insured shall not waive or otherwise prejudice any such right of recovery.

The companies hereby waive any right of subrogation against (1) any other insured of (2) the United States of America or any of its agencies acquired by reason of any payment under this policy.

It is a condition of this policy that if an insured makes a recovery on account of any such injury, the insured shall repay to the companies the amount to which the companies would have been entitled had the foregoing provisions, or any of them, not been included in the policy.

XI—Inspection and Suspension

The companies shall be permitted, but not obligated, to inspect at any time the facility as described in any Certificate and all books, records and operation relating thereto, both with respect to this insurance, and any other nuclear energy liability insurance and property insurance also afford with respect thereto by members of NELIA, American Nuclear Insurers, MAELU or MAERP Reinsurance Association.

If a representative of the companies discovers a condition which he or she believes to be unduly dangerous with respect to the risks insured under the Certificate, a representative of the companies may request such condition to be corrected without delay. In the event of noncompliance with the request, an officer of NELIA may, by written notice mailed or delivered to the first Named Insured, with similar notice to the United States Nuclear Regulatory Commission, suspend the insurance afforded by a Certificate issued by NELIA effective 12:00 midnight of the next business day of such Commission following the date that such Commission receives such notice. The period of such suspension shall terminate as of the time stated in a written notice from NELIA to the first Named Insured that such condition has been corrected.

Neither the right to make such inspections or suspensions nor the making thereof nor any advice or report resulting therefrom shall constitute an undertaking, on behalf of or for the benefit of the Named Insureds or others to determine or warrant that the facility or operations relating thereto are safe or healthful, or are in compliance with any law, rule or regulation.

In consideration of the issuance or continuation of a Certificate, the Named Insureds agree that neither the companies nor any persons or organizations making such inspections on their behalf shall be liable for damage to the facility or any consequential damage or cost resulting therefrom, including but not limited to any such damage or cost relating to interruption of business or manufacture, arising out of the making of or failure to make any such inspection of the facility, any report thereon, or any such suspension of insurance, but this provision does not limit the companies' contractual obligations under a Certificate issued by NELIA or any policy issued by NELIA or American Nuclear Insurers affording the insured nuclear energy liability or property insurance.

XII—Cancellation of Certificates

The first Named Insured designated in a Certificate issued to from a part of this policy any cancel such Certificate by mailing to the companies and the United States Nuclear Regulatory Commission written notice stating when, not less than 30 days thereafter, such cancellation shall be effective.

The companies may cancel any such Certificate by mailing to the first Named Insured designated therein at the address shown in such Certificate and to the United States Nuclear Regulatory Commission written notice, stating when, not less than 90 days thereafter, such cancellation shall be effective; provided in the event of non-payment of premium, or if the operator of the facility, as designated in the Declarations of the Certificate, is replaced by another person or organization, such Certificate may be cancelled by the companies by mailing to the first Named Insured at the address shown therein and to the United States Nuclear Regulatory Commission written notice, stating when, not less than 30 days thereafter, such cancellation shall be effective.

The mailing of notice as aforesaid shall be sufficient proof of notice. The effective date and hour of cancellation stated in the notice shall become the end of the Certificate period. Delivery of such written notice either by the first Named Insured or the companies shall be equivalent to mailing.

Upon cancellation of a Certificate, other than as of the end of December 31 in any year, the earned standard premium for the period such Certificate has been in force since the preceding December 31 shall be computed in accordance with the following provisions:

(1) If the first Named Insured cancels, the earned standard premium for such period shall be computed in accordance with the customary annual short rate table and procedure; provided, however, that if the first Named Insured cancels after knowledge of bodily injury caused by the nuclear energy hazard, all premiums theretofore paid or payable shall be fully earned;

(2) If the companies cancel, the earned standard premium for such period shall be computed pro rata.

Premium adjustment, if any, may be made either at the time of cancellation or as soon as practicable after cancellation becomes effective, but payment of tender of unearned premium is not a condition of cancellation.

Cancellation of a Certificate shall not affect the rights and obligations of the Named Insureds under the Insureds under the Industry Retrospective Rating Plan Premium Endorsement forming a part of the Certificate.

XIII—General Conditions A. Premium

The Named Insureds designated in a Certificate issued by NELIA shall pay the companies the premiums for the Certificate in accordance with the provisions of the Industry Retrospective Rating Plan Premium Endorsement described in Attachment 1 to this policy.

B. Modifications, Waiver

The provisions of this policy or a Certificate issued to form a part hereof shall not be changed or waived except by an endorsement issued by the companies to form a part of the policy or Certificate.

C. Assignment

Assignment of interest under a Certificate issued to form a part of this policy shall not bind the companies until their consent is endorsed thereon. If, however, a Named Insured shall die or be declared bankrupt or insolvent, the Certificate shall cover the Named Insured's legal representative, receiver or trustee as an insured, but only with respect to liability as such, and then only provided written notice of the appointment as legal representative, receiver or trustee is given to the companies within 10 days after such appointment.

D. Suit

No suit or action on a Certificate issued to form a part of this policy shall lie against the companies or any of them unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of the policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the companies.

Any person or organization or the legal representative thereof who has secured such judgment of written agreement shall thereafter be entitled to recover under the Certificate to the extent of the insurance afforded by this policy through the Certificate. No person or organization shall have any right under the Certificate to join the companies or any of them as parties to any action against the insured to determine the insured's liability, nor shall the companies or any of them be impleaded by the insured or the insured's legal representative.

Bankruptcy or insolvency of the insured or the insured's estate shall not relieve the companies of any of their obligations under this policy.

E. Authorization of The First Named Insured

Except with respect to compliance with the obligations imposed on the insured by the Sections of this policy entitled Insured's Duties in Case of Claims or Suits, Subrogation and Suit, the first Named Insured designated in the Declarations of a Certificate issued to form a part of this policy is authorized to act for every other insured in all matters pertaining to this insurance.

F. Insured Representation

Any notice, sworn statement of proof of Loss which may be required by the provisions of this policy may be given to any one of the companies specified in the Schedule of Subscribing Companies attached hereto. Such notice, statement or proof of Loss so given shall be valid and binding on all such companies.

In any action or suit against such companies, service of process may be made on any one of them and such service shall be valid and binding service on all such companies.

Nuclear Energy Liability Insurance Association is the agent of the companies with respect to all matters pertaining to this insurance. All notices or other communications required by this policy may be given to such agent at its office at: Nuclear Energy Liability Insurance Association, The Exchange, Suite 245, 270 Farmington Avenue, Farmington, Connecticut 06032, with the same force and effect as if given directly to the companies. Any requests, demands or agreements made by such agent shall be deemed to have been made directly by the companies.

G. Changes in Subscribing Companies and Their Proportionate Liability

By acceptance of this policy the Named Insureds agree that the members of Nuclear Energy Liability Insurance Association liable under this policy, and the proportionate liability of each such member, may change from year to year, and further agree that regardless of such changes:

(1) Each company subscribing this policy upon its issuance shall be liable only for its stated proportion of any obligation assumed or expense incurred under this policy because of bodily injury to new workers caused, during the period from the effective date of this policy to the close of December 31 next following, by the nuclear energy hazard; for each subsequent calendar year, beginning January 1 next following the effective date of this policy, any change in the subscribing companies and the proportionate liability of each such company shall be stated in an endorsement issued to form a part of this policy, duly executed and attested by the President of Nuclear Energy Liability Insurance Association on behalf of each such company, and a copy of which will be mailed or delivered to the first Named Insured of each Certificate.

(2) The liability of any subscribing company shall not be cumulative from year to year.

H. Declarations

By acceptance of this Master Worker Policy, the Named Insureds designated in a Certificate agree that the statements in such Certificate are their agreements and representations, that this Master Worker Policy and such Certificate are issued in reliance upon the truth of such representations and that this Master Worker Policy and such Certificate embody all agreements between such Named Insureds and the companies or any of their agents relating to this insurance.

In Witness Whereof, the companies subscribing this policy have caused the policy to be executed and attested on their behalf by the President of Nuclear Energy Liability Insurance Association and duly countersigned by an authorized representative, but this policy shall be binding on each company only to the extent of its designated proportion of any obligation assumed or expense incurred under this policy.

For the Subscribing Companies: Date of Issue: ________ 19____ Countersigned by: (Authorized Representative) NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION Nuclear Energy Liability Policy (Facility Worker Form) herein called the Master Worker Policy Certificate of Insurance, NMWPC-1(1/1/88)

Certificate No. ______

This is to certify that the insured named in Item 1 of the Declarations hereof, hereinafter called the Named Insureds, have obtained insurance under the Master Worker Policy issued by Nuclear Energy Liability Insurance Association on behalf of its members. The insurance is subject to all of the provisions of the Certificate and the Master Worker Policy.

1—Declarations Item 1.—Named Insureds and Addresses: Item 2.—Certificate Coverage Period:

Beginning at 12:01 a.m. January 1, 1988 and ending at the close of December 31, 1992, Eastern Standard Time, or at the time and date this Certificate is cancelled or terminated, whichever first occurs.

Item 3.—Description of the Facility:

Location:

Type:

Operator of the Facility:

Item 4.—Amount of Insurance Available:

The amount of insurance afforded by the Master Worker Policy through this Certificate shall be determined by Section VIII of the Master Worker Policy and all of the other provisions of the policy relating thereto.

Item 5.—Advance Premium: $ 2—Application of Certificate

This Certificate applies only to bodily injury to a new worker (1) which is caused, during the Certificate Coverage Period, by the nuclear energy hazard and (2) which is discovered and for which written claim is first made against an insured under the Certificate within the discovery period of the Master Worker Policy.

3—Industry Retrospective Rating Plan

All insurance under the Master Worker Policy is subject to the Industry Retrospective Rating Plan in use by the companies. No insurance is provided under this Certificate unless and until the first Named Insured has accepted in writing the Industry Retrospective Rating Plan Premium Endorsement and a copy of the signed endorsement has been issued by the companies to form a part of this Certificate.

In Witness Whereof, the companies subscribing the Master Worker Policy have caused this Certificate to be executed and attested on their behalf by the President of Nuclear Energy Liability Insurance Association and duly countersigned by an authorized representative.

For the Subscribing Companies:

Date of Issue __________ 19 ______

Countersigned by: (Authorized Representative) NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION Nuclear Energy Liability Insurance Industry Retrospective Rating Plan Premium Endorsement, NE-W-1(1/1/88)

It is agreed that:

1. Definitions

With reference to the premium for the Certificate of which this endorsement forms a part:

Master Worker Policy means the Master Worker Policy issued by NELIA;

Certificate Holder means the first Named Insured in a Certificate issued to form a part of the Master Worker Policy;

Advance premium, for any calendar year, is the estimated standard premium for that calendar year;

Standard premium, for any calendar year, is the premium for that calendar year computed in accordance with the companies' rules, rates, rating plans (other than the Industry Retrospective Rating Plan), premiums and minimum premiums applicable to this insurance. Standard premium includes elements for premium taxes, expenses, profit and contingencies, guaranteed cost insurance and estimated reserve premium. The elements of standard premium, other than for premium taxes and estimated reserve premium, are not subject to retrospective adjustment;

Reserve premium means that portion of the premium for a Certificate (including reserve premium charges paid) that is specifically allocated under the Industry Retrospective Rating Plan for ratable incurred losses;

Industry reserve premium, for any period, is the sum of the reserve premiums for that period for all Certificates issued to form a part of the Master Worker Policy;

Retrospective adjustment ratio, for any period, is the ratio of the reserve premium for this Certificate for that period to the industry reserve premium for the same period;

Incurred losses means the sum of all:

(1) Losses and expenses paid by NELIA, and

(2) Reserves for losses and expenses as estimated by NELIA, because of obligations assumed and expenses incurred in connection with such obligations by the members of NELIA under the Master Worker Policy;

Ratable incurred losses means 95% of incurred losses. Ratable incurred losses are the portion of incurred losses which are not covered by the guaranteed cost insurance element of standard premiums;

Non-ratable incurred losses means 5% of incurred losses. Nonratable incurred losses are the portion of incurred losses which are covered by the guaranteed cost insurance element of standard premiums;

Reserve for refunds, as of any date, is the algebraic difference between:

(1) All industry reserve premium for the period from January 1, 1988 through such date, minus

(2) The total for the same period of (a) all ratable incurred losses and (b) all industry reserve premium refunds made under the Industry Retrospective Rating Plan by members of NELIA;

Industry reserve premium charge, for any period, means the amount determined pursuant to the provisions of Section 4 of this endorsement for payment by the Named Insureds under Certificates;

Reserve premium charge means the portion of an industry reserve premium charge payable by the Named Insureds under Certificates;

Industry reserve premium refund for any period, means the amount determined pursuant to the provisions of Section 4 of this endorsement for return to the Named Insureds under Certificates;

Reserve premium refund means the portion of an industry reserve premium refund returnable to the Named Insureds under this Certificate.

2. Payment of Advance and Standard Premiums

The Named Insureds shall pay the companies the advance premium stated in the declarations, for the period from the effective date of this Certificate through December 31 following. Thereafter, at the beginning of each calendar year while this Certificate is in force, the Named Insureds shall pay the advance premium for such year to the companies.

The advance premium for each calendar year shall be stated in the Advance and Standard Premium Endorsement for the year issued by the companies as soon as practicable prior to or after the beginning of the year.

As soon as practicable after the end of a calendar year or the Certificate Coverage Period, the standard premium for the preceding year shall be finally determined and stated in the Advance and Standard Premium Endorsement for that year. If the Standard Premium exceeds the Advance Premium paid for that year, the Named Insureds shall pay the excess to the companies; if less, the companies shall return to the Named Insureds the excess portion paid.

The Named Insureds shall maintain records of the information necessary for premium computation and shall send copies of such records to the companies as directed, at the end of each calendar year, at the end of the Certificate Coverage Period and at such other times as the companies may direct.

3. Special Reserve Account; Use of Reserve Premiums

NELIA shall maintain on behalf of its members a Special Reserve Account for holding collectively all reserve premiums paid for all Certificates issued to form a part of the Master Worker Policy. Such premiums, together with any undistributed net income realized thereon after taxes and investment expenses, shall be used for the following purposes only:

(1) To pay ratable incurred losses or, in the event ratable incurred losses are paid under the Master Worker Policy from funds advanced by the members of NELIA subscribing the policy, to reimburse such members as a matter of first priority for the funds advanced;

(2) To refund any amounts so held to the Named Insureds, as provided in Section 4.

No members of NELIA and no Named Insureds shall have any individual interest in or claim upon amounts held in the special Reserve Account, except to participate proportionally in any refund or reimbursement provided for above.

All reserve premiums paid or payable for this certificate may be used by NELIA to discharge the obligations of its members under the Master Worker Policy with respect to the above purposes and arising out of claims made under any Certificate issued to form a part of the Master Worker Policy.

4. Payment of Reserve Premium Charges and Refunds

As soon as practicable after each December 31 the companies will review the status of the reserve for refunds and report their findings to all Certificate Holders.

If, at any time, the companies find that there is negative balance in the reserve for refunds and that such condition is likely to prevail, they shall determine an appropriate industry reserve premium charge. Similarly, if the companies find that there is a surplus positive balance, they shall determine an appropriate industry reserve premium refund.

The portion of an industry reserve premium charge or an industry reserve premium refund that is:

(1) Payable by the Named Insureds as a reserve premium charge, or

(2) Due such insureds as reserve premium refund, shall be determined by multiplying the industry reserve premium charge or the industry reserve premium refund by the retrospective adjustment ratio applicable to this Certificate.

The amount of any reserve premium charge shall be stated in a Retrospective Reserve Premium Charge Endorsement. The charge shall be paid promptly after receipt of the endorsement.

When all claims covered by the Master Worker Policy are closed the companies shall make a final review and report, and shall determine a final industry reserve premium charge or industry reserve premium refund equal to the amount of the balance.

5. Final Premium

The final premium for this Certificate shall be (a) the sum of the standard premiums for each calendar year, or portion thereof, during which the Certificate remains in force plus (b) the sum of all reserve premiums, including all reserve premium charges, minus (c) the sum of all reserve premium refunds.

6. Reserve Premium Charge Agreement

In consideration of (a) the participation of Named Insureds in other Certificates subject to the Industry Retrospective Rating Plan, (b) the undertaking of such Named Insureds to pay their appropriate share of any industry reserve premium charge and (c) the obligations assumed by the members of NELIA under the Master Worker Policy, the Named Insureds, by acceptance of the Master Worker Policy, agree:

(1) That the insurance provided by the Master Policy applies collectively to all claims covered by the policy through any and all Certificates issued to form a part of the policy.

(2) That the right of each Named Insured under a Certificate to receive reserve premium refunds and the obligation of each such insured to pay reserve premiums charges applies to all claims covered by the Master Worker Policy and continues until all such claims are closed, whether or not such claims were before the inception of the Certificate or after its termination.

(3) To pay all reserve premium charges due promptly after receipt of the Retrospective Reserve Premium Charge Endorsement, whether or not the Certificate is terminated. Any reserve premium charge shall be overdue if not paid within 60 days of the date of the invoice for the charge.

Overdue reserve premium charges shall bear interest from the due date until paid at an annual rate equal to the sum of (a) 3% plus (b) a rate of interest equal to Moody's Average Public Utility Bond Yield described in the issue of Moody's Bond Survey current on the due date. Any reserve premium refund due to Named Insureds under a Certificate shall be used to pay any overdue reserve premium charges to such Named Insureds.

7. Reserve Premium Refund Agreement

Each member of NELIA subscribing the Master Worker Policy for any calendar year, or portion thereof, with respect to which an industry reserve premium refund is determined to be payable thereby agrees for itself, severally and not jointly, and in the respective proportion of its liability assumed under the Master Worker Policy for that calendar year, to return promptly to the Named Insureds that portion of such refund due such Insureds, as determined in accordance with the provisions of this endorsement.

Accepted and agreed by the first Named Insured in behalf of itself and every other Named Insured stated in the Declarations of the Certificate of which this endorsement forms a part.

(First Named Insured—Type or Print Date By (Signature of Authorized Officer) (Type of Print Named and Title of Officer) Effective Date of this Endorsement 12:01 a.m. Standard Time To form a part of Policy No Issued to Date of Issue

For the subscribing companies:

By General Manager

Endorsement No:

Countersigned by NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION Nuclear Energy Liability Insurance Advance Premium and Standard Premium Endorsement, NE-W-2(1/1/88) Calendar Year 1988 1. Advance Premium

It is agreed that the Advance Premium due the companies for the period designated above is:

$ 2. Standard Premium and Reserve Premium

In the absence of a change in the Advance Premium indicated above, it is agreed that, subject to the previsions of the Industry Retrospective Rating Plan, the Standard Premium is said Advance Premium and the estimated reserve Premium element of the Standard Premium is:

$

Explanation of Use of this Endorsement: This endorsement will be used in the first year of the Master Worker Policy. It states the Advance Premium and the estimated Reserve Premium for the year for the Certificate to which the endorsement is attached.

Effective Date of this Endorsement 12:01 a.m. Standard Time To form a part of Policy No Issued to Date of Issue

For the subscribing companies:

By General Manager

Endorsement No:

Countersigned by NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION Nuclear Energy Liability Insurance Advance Premium and Standard Premium Endorsement, NE-W-3 (1/1/88) Calendar Year ________

It is agreed that Items 1 and 2 of Endorsement No. are amended to read:

1. Advance Premium

It is agreed that the Advance Premium due the companies for the period designated above is:

$ 2. Standard Premium and Reserve Premium

In the absence of a change in the advance premium indicated above, it is agreed that, subject to the provisions of the Industry Retrospective Rating Plan, the Standard Premium is said Advance Premium and the estimated Reserve Premium element of the Standard Premium is:

$

Explanation of Use of this Endorsement: This endorsement will be used for calendar years of the Master Worker Policy after the 1988 calendar year. It states the Advance Premium and the estimated Reserve Premium for the year for the Certificate to which the endorsement is attached.

Effective Date of this Endorsement 12:01 a.m. Standard Time To form a part of Policy No Issued to Date of Issue

For the subscribing companies:

By General Manager Endorsement No. Countersigned by NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION Nuclear Energy Liability Insurance Retrospective Reserve Premium Charge Endorsement, NE-W-dash;5 (1/1/88) 1. Industry Reserve Premium Charge

In accordance with Section 4 of the Industry Retrospective Rating Plant Premium Endorsement attached to each Certificate to this policy, the companies have reviewed the status of the reserve for refunds, found that there is a negative balance in the reserve for refunds and have determined that an industry reserve premium charge, as indicated below, is appropriate:

$ 2. Retrospective Adjustment Ratio

The portion of the industry reserve premium charge payable by the Named Insureds under this Certificate is determined by multiplying such charge by this Certificate's retrospective adjustment ratio, which is:

3. Reserve Premium Charge

The Named Insureds' portion of the industry reserve premium charge, as calculated above, is:

$

Explanation of Use of this Endorsement: This endorsement will be issued by the companies under the Master Worker Policy after an industry reserve premium charge has been determined because there is a negative balance in the reserve for refunds. It states the reserve premium charge applicable to the Certificate to which the endorsement is attached.

Effective Date of this Endorsement 12:01 a.m. Standard Time To form a part of Policy No. Issued to Date of Issue

For the subscribing companies

By General Manager Endorsement No. Countersigned by

[25 FR 2948, Apr. 7, 1960]

Editorial Note:For Federal Register citations affecting § 140.91, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 140.92 Appendix B—Form of indemnity agreement with licensees furnishing insurance policies as proof of financial protection.

This indemnity agreement ________ is entered into by and between the ________ (hereinafter referred to as the licensee) and the United States Nuclear Regulatory Commission (hereinafter referred to as the Commission) pursuant to subsection 170c of the Atomic Energy Act of 1954, as amended (hereinafter referred to as the Act).

Article I

As used in this agreement,

1. Nuclear reactor, byproduct material, person, source material, special nuclear material, and precautionary evacuation shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Commission.

2.(a) For facilities designed for producing substantial amounts of electricity and having a rated capacity of 100,000 electrical kilowatts or more, and except when otherwise specifically provided, amount of financial protection means the amount specified in Item 2a. and b. of the Attachment annexed hereto, as modified by paragraph 8, Article II, with respect to common occurrences, and the amount available as secondary financial protection (in the form of private liability insurance available under an industry retrospective rating plan for deferred retrospective premium charges).

(b) For all other facilities, and except where otherwise specifically provided, amount of financial protection means the amount specified in Item 2a. and b., of the Attachment annexed hereto, as modified by paragraph 8, Article II, with respect to common occurrences.

3. (a) Nuclear incident means any occurrence including an extraordinary nuclear occurrence or series of occurrences at the location or in the course of transportation causing bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of the radioactive material.

(b) Any occurrence including an extraordinary nuclear occurrence or series of occurrences causing bodily injury, sickness, disease or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive or other hazardous properties of

i. The radioactive material discharged or dispersed from the location over a period of days, weeks, months or longer and also arising out of such properties of other material defined as the radioactive material in any other agreement or agreements entered into by the Commission under subsection 170 c or k of the Act and so discharged or dispersed from the location as defined in any such other agreement, or

ii. The radioactive material in the course of transportation and also arising out of such properties of other material defined in any other agreement entered into by the Commission pursuant to subsection 170 c or k of the Act as the radioactive material and which is in the course of transportation,

shall be deemed to be a common occurrence. A common occurrence shall be deemed to constitute a single nuclear incident.

4. Extraordinary nuclear occurrence means an event which the Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, as amended.

5. In the course of transportation means in the course of transportation within the United States, or in the course of transportation outside the United States and any other nation, and moving from one person licensed by the Commission to another person licensed by the Commission, including handling or temporary storage incidental thereto, of the radioactive material to the location or from the location provided that:

(a) With respect to transportation of the radioactive material to the location, such transportation is not by pre-determination to be interrupted by the removal of the material from the transporting conveyance for any purpose other than the continuation of such transportation to the location or temporary storage incidental thereto;

(b) The transportation of the radioactive material from the location shall be deemed to end when the radioactive material is removed from the transporting conveyance for any purpose other than the continuation of transportation or temporary storage incidental thereto;

(c) In the course of transportation as used in this agreement shall not include transportation of the radioactive material to the location if the material is also in the course of transportation from any other location as defined in any other agreement entered into by the Commission pursuant to subsection 170 c or k of the Act.

6. Person indemnified means the licensee and any other person who may be liable for public liability.

7. Public liability means any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including all reasonable additional costs incurred by a State, or a political subdivision of a State, in the course of responding to a nuclear incident or precautionary evacuation), except (1) claims under State or Federal Workmen's Compensation Acts of employees of persons indemnified who are employed (a) at the location or, if the nuclear incident occurs in the course of transportation of the radioactive material, on the transporting vehicle, and (b) in connection with the licensee's possession, use or transfer of the radioactive material; (2) claims arising out of an act of war; and (3) claims for loss of, or damage to, or loss of use of (a) property which is located at the location and used in connection with the licensee's possession, use, or transfer of the radioactive material, and (b) if the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle, containers used in such transportation, and the radioactive material.

8. The location means the location described in Item 4 of the Attachment hereto.

9. The radioactive material means source, special nuclear, and byproduct material which (1) is used or to be used in, or is irradiated or to be irradiated by, the nuclear reactor or reactors subject to the license or licenses designated in the Attachment hereto, or (2) which is produced as the result of operation of said reactor(s).

10. United States when used in a geographical sense includes Puerto Rico and all territories and possessions of the United States.

Article II

1. At all times during the term of the license or licenses designated in Item 3 of the Attachment hereto, the licensee will maintain financial protection in the amount specified in Item 2 of the Attachment and in the form of the nuclear energy liability insurance policy designated in the Attachment. If more than one license is designated in Item 3 of the Attachment, the licensee agrees to maintain such financial protection until the end of the term of that license which will be the last to expire. The licensee shall, notwithstanding the expiration, termination, modification, amendment, suspension or revocation of any license or licenses designated in Item 3 of the Attachment, maintain such financial protection in effect until all the radioactive material has been removed from the location and transportation of the radioactive material from the location has ended as defined in paragraph 5(b), Article I of this section, or until the Commission authorizes the termination or the modification of such financial protection. The Commission will not unreasonably withhold such authorization.

2. In the event of any payment by the insurer or insurers under a policy or policies specified in Item 5 of the Attachment hereto which reduces the aggregate limit of such policy or policies below the amount of financial protection, the licensee will promptly apply to his insurers for reinstatement of the amount specified in Item 2a of the Attachment (without reference to paragraph b of Item 2) and will make all reasonable efforts to obtain such reinstatement. In the event that the licensee has not obtained reinstatement of such amount within ninety days after the date of such reduction, and in the absence of good cause shown to the contrary, the Commission may issue an order requiring the licensee to furnish financial protection for such amount in another form.

3. Any obligations of the licensee under subsection 53e(8) of the Act to indemnify the United States and the Commission from public liability, together with any public liability satisfied by the insurers under the policy or policies designated in the Attachment hereto, shall not in the aggregate exceed the amount of financial protection with respect to any nuclear incident, including the reasonable costs of investigating and settling claims and defending suits for damage.

4. With respect to any extraordinary nuclear occurrence to which this agreement applies, the Commission, and the licensee on behalf of itself and other persons indemnified, insofar as their interests appear, each agree to waive:

(a) Any issue or defense as to the conduct of the claimant or fault of persons indemnified, including, but not limited to:

(1) Negligence;

(2) Contributory negligence;

(3) Assumption of the risk;

(4) Unforeseeable intervening causes, whether involving the conduct of a third person or an act of God.

As used herein, conduct of the claimant includes conduct of persons through whom the claimant derives his cause of action;

(b) Any issue or defense as to charitable or governmental immunity;

(c) Any issue or defense based on any statute of limitations if suit is instituted within 3 years from the date on which the claimant first knew, or reasonably could have known, of his injury or damage and the cause thereof.

The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action. The waivers shall be judicially enforceable in accordance with their terms by the claimant against the person indemnified.

5. The waivers set forth in paragraph 4 of this article:

(a) Shall not preclude a defense based upon a failure to take reasonable steps to mitigate damages;

(b) Shall not apply to injury or damage to a claimant or to a claimant's property which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant;

(c) Shall not apply to injury to a claimant who is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits therefore are either payable or required to be provided under any workmen's compensation or occupational disease law: Provided, however, That with respect to an extraordinary nuclear occurrence occurring at the facility, a claimant who is employed at the facility in connection with the construction of a nuclear reactor with respect to which no operating license has been issued by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the extraordinary nuclear occurrence takes place if:

(1) The claimant is employed exclusively in connection with the construction of a nuclear reactor, including all related equipment and installations at the facility, and

(2) No operating license has been issued by the NRC with respect to the nuclear reactor, and

(3) The claimant is not employed in connection with the possession, storage, use or transfer of nuclear material at the facility;

(d) Shall not apply to any claim for punitive or exemplary damages, provided, with respect to any claim for wrongful death under any State law which provides for damages only punitive in nature, this exclusion does not apply to the extent that the claimant has sustained actual damages, measured by the pecuniary injuries resulting from such death but not to exceed the maximum amount otherwise recoverable under such law;

(e) Shall be effective only with respect to those obligations set forth in this agreement;

(f) Shall not apply to, or prejudice the prosecution or defense of, any claim or portion of claim which is not within the protection afforded under (1) the limit of liability provisions under subsection 170(e) of the Atomic Energy Act of 1954, as amended, and (2) the terms of this agreement and the terms of the nuclear energy liability insurance policy or policies designated in the attachment hereto.

6. The obligations of the licensee under this agreement shall apply only with respect to nuclear incidents occurring during the term of this agreement.

7. Upon the expiration or revocation of any license designated in Item 3 of the Attachment, the Commission will enter into an appropriate amendment of this agreement with the licensee reducing the amount of financial protection required under this Article; provided, that the licensee is then entitled to a reduction in the amount of financial protection under applicable Commission regulations and orders.

8. With respect to any common occurrence,

(a) If the sum of limit of liability of any Nuclear Energy Liability Insurance Association policy designated in Item 5 of the Attachment and the limits of liability of all other nuclear energy liability insurance policies (facility form) applicable to such common occurrence and issued by Nuclear Energy Liability Insurance Association exceeds $155,000,000 the amount of financial protection specified in Item 2 a and b of the Attachment shall be deemed to be reduced by that proportion of the difference between said sum and $155,000,000 as the limit of liability of the Nuclear Energy Liability Insurance Association policy designated in Item 5 of the Attachment bears to the sum of the limits of liability of all nuclear energy liability insurance policies (facility form) applicable to such common occurrence and issued by Nuclear Energy Liability Insurance Association;

(b) If the sum of the limit of liability of any Mutual Atomic Energy Liability Underwriters policy designated in Item 5 of the Attachment and the limits of liability of all other nuclear energy liability insurance policies (facility form) applicable to such common occurrence and issued by Mutual Atomic Energy Liability Underwriters exceeds $45,000,000, the amount of financial protection specified in Item 2 a and b of the Attachment shall be deemed to be reduced by that proportion of the difference between said sum and $45,000,000 as the limit of liability of the Mutual Atomic Energy Liability Underwriters policy designated in Item 5 of the Attachment bears to the sum of the limits of liability of all nuclear energy liability insurance policies (facility form) applicable to such common occurrence and issued by Mutual Atomic Energy Liability Underwriters;

(c) If any of the other applicable agreements is with a person who has furnished financial protection in a form other than a nuclear energy liability insurance policy (facility form) issued by Nuclear Energy Liability Insurance Association or Mutual Atomic Energy Liability Underwriters, and if also the sum of the amount of financial protection established under this agreement and the amounts of financial protection established under all other applicable agreements exceeds an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection, the obligations of the licensee shall not exceed a greater proportion of an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection, than the amount of financial protection established under this agreement bears to the sum of such amount and the amounts of financial protection established under all other applicable agreements.

(d) As used in this paragraph 8., Article II, and in Article III, other applicable agreements means each other agreement entered into by the Commission pursuant to subsection 170(c) of the Act in which agreement the nuclear incident is defined as a common occurrence. As used in this paragraph 8., Article II, the obligations of the licensee means the obligations of the licensee under subsection 53e(8) of the Act to indemnify the United States and the Commission from public liability, together with any public liability satisfied by the insurers under the policy or policies designated in the Attachment, and the reasonable costs incurred by the insurers in investigating and settling claims and defending suits for damage.

9. The obligations of the licensee under this Article shall not be affected by any failure or default on the part of the Commission or the Government of the United States to fulfill any or all of its obligations under this agreement. Bankruptcy or insolvency of any person indemnified other than the licensee, or the estate of any person indemnified other than the licensee, shall not relieve the licensee of any of his obligations hereunder.

Article III

1. The Commission undertakes and agrees to indemnify and hold harmless the licensee and other persons indemnified, as their interest may appear from public liability.

2. With respect to damage caused by a nuclear incident to property of any person legally liable for the nuclear incident, the Commission agrees to pay to such person those sums which such person would have been obligated to pay if such property had belonged to another; provided, that the obligation of the Commission under this paragraph 2 does not apply with respect to:

(a) Property which is located at the location described in Item 4 of the Attachment or at the location described in Item 3 of the declarations attached to any nuclear energy liability insurance policy designated in Item 5 of the Attachment;

(b) Property damage due to the neglect of the person indemnified to use all reasonable means to save and preserve the property after knowledge of a nuclear incident;

(c) If the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle and containers used in such transportation;

(d) The radioactive material.

3. [Reserved]

4. (a) The obligations of the Commission under this agreement shall apply only with respect to such public liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed the amount of financial protection.

(b) With respect to a common occurrence, the obligations of the Commission under this agreement shall apply only with respect to such public liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed whichever of the following is lower: (1) The sum of the amounts of financial protection established under this agreement and all other applicable agreements; or (2) an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection.

5. The obligations of the Commission under this agreement shall apply only with respect to nuclear incidents occurring during the term of this agreement.

6. The obligations of the Commission under this and all other agreements and contracts to which the Commission is a party shall not with respect to any nuclear incident, in the aggregate exceed whichever of the following is the lowest: (a) $500,000,000; (b) $560,000,000 less the amount of financial protection required under this agreement; or (c) with respect to a common occurrence, $560,000,000 less the sum of the amounts of financial protection established under this agreement and all other applicable agreements.

7. The obligations of the Commission under this agreement, except to the licensee for damage to property of the licensee, shall not be affected by any failure on the part of the licensee to fulfill its obligations under this agreement. Bankruptcy or insolvency of the licensee or any other person indemnified or of the estate of the licensee or any other person indemnified shall not relieve the Commission of any of its obligations hereunder.

Article IV

1. When the Commission determines that the United States will probably be required to make indemnity payments under the provisions of this agreement, the Commission shall have the right to collaborate with the licensee and other persons indemnified in the settlement and defense of any claim (provided that no government indemnity that would otherwise be available to pay public liability claims is used for these purposes) and shall have the right (a) to require the prior approval of the Commission for the settlement or payment of any claim or action asserted against the licensee or other person indemnified for public liability or damage to property of persons legally liable for the nuclear incident which claim or action the licensee or the Commission may be required to indemnify under this agreement; and (b) to appear through the Attorney General of the United States on behalf of the licensee or other person indemnified, take charge of such action and settle or defend any such action. If the settlement or defense of any such action or claim is undertaken by the Commission, the licensee shall furnish all reasonable assistance in effecting a settlement or asserting a defense.

2. Neither this agreement nor any interest therein nor claim thereunder may be assigned or transferred without the approval of the Commission.

Article V

The parties agree that they will enter into appropriate amendments of this agreement to the extent that such amendments are required pursuant to the Atomic Energy Act of 1954, as amended, or licenses, regulations or orders of the Commission.

Article VI

The licensee agrees to pay to the Commission such fees as are established by the Commission pursuant to regulations or orders of the Commission.

Article VII

The term of this agreement shall commence as of the date and time specified in Item 6 of the Attachment and shall terminate at the time of expiration of that license specified in Item 3 of the Attachment, which is the last to expire; provided that, except as may otherwise be provided in applicable regulations or orders of the Commission, the term of this agreement shall not terminate until all the radioactive material has been removed from the location and transportation of the radioactive material from the location has ended as defined in paragraph 5(b), Article I of this section. Termination of the term of this agreement shall not affect any obligation of the licensee or any obligation of the Commission under this agreement with respect to any nuclear incident occurring during the term of this agreement.

Article VIII

The following provisions are applicable to each licensee operating a facility designed for producing substantial amounts of electricity and having a rated capacity of 100,000 electrical kilowatts or more;

1. Each licensee is required to have and maintain financial protection in an amount specified in Item 2 a and b of the Attachment annexed hereto, and the amount available as secondary financial protection (in the form of private liability insurance available under an industry retrospective rating plan providing for deferred premium charges); Provided, however, That under such a plan for deferred premium charges, such charges for each nuclear reactor which is licensed to operate shall not exceed $63,000,000 with respect to any single nuclear incident (plus any surcharge assessed under subsection 170o.(1)(E) of the Act) nor exceed $10,000,000 per incident within one calendar year. If the licensee fails to pay assessed deferred premiums, the Commission reserves the right to pay those premiums on behalf of the licensee and to recover the amount of such premiums from the licensee.

2. The Commission shall require the immediate submission of financial statements by those licensees who indicate, after an assessment of the retrospective premium by the insurance pools, that they will not pay the assessment. Such financial statements shall include, as a minimum, exhibits indicating internally generated funds from operations and accumulated retained earnings. Subsequent submission of financial statements by such licensees may be requested by the Commission, as required.

3. If premiums are paid by the Commission as provided in paragraph 1, payment by the Commission shall create a lien in the amount paid in favor of the United States upon all property and rights to property, whether real or personal, belonging to such licensee. The lien shall arise at the time payment is made by the Commission and shall continue until the liability for the amount (or a judgment against the licensee arising out of such liability) is satisfied or becomes unenforceable. The Commission will issue a certificate of release of any such lien if it finds that the liability for the amount has been fully satisfied or has become legally unenforceable.

4. If the Commission determines that the licensee is financially able to reimburse the Commission for a deferred premium payment made in its behalf, and the licensee, after notice of such determination by the Commission fails to make such reimbursement within 120 days, the Commission will take appropriate steps to suspend the license for 30 days. The Commission may take any further action as necessary if reimbursement is not made within the 30-day suspension period including, but not limited to termination of the operating license.

United States Nuclear Regulatory Commission Indemnity Agreement No. Item 1—Licensee Address Item 2—a. Amount of financial protection

b. With respect to any nuclear incident, the amount specified in Item 2a of this Attachment shall be deemed to be (i) reduced to the extent that any payment made by the insurer or insurers under a policy or policies specified in Item 5 of this Attachment reduces the aggregate amount of such insurance policies below the amount specified in Item 2a and (ii) restored to the extent that, following such reduction, the aggregate amount of such insurance policies is reinstated.

Item 3—License number or numbers Item 4—Location Item 5—Insurance Policy No.(s) Item 6—The indemnity agreement designated above, of which this Attachment is a part, is effective as of __ m., on the __ day of ____________, 19____.

For the United States Nuclear Regulatory Commission.

By __________________ For the __________________ (Name of licensee) By __________________

Dated at Bethesda, MD, the ______________ day of ____________, 19____.

[26 FR 3457, Apr. 22, 1961]

Editorial Note:For Federal Register citations affecting § 140.92, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 140.93 Appendix C—Form of indemnity agreement with licensees furnishing proof of financial protection in the form of licensee's resources.

This indemnity agreement No. __________ is entered into by and between the ________ (hereinafter referred to as the licensee) and the United States Nuclear Regulatory Commission (hereinafter referred to as the Commission pursuant to subsection 170(c) of the Atomic Energy Act of 1954, as amended (hereinafter referred to as the Act).

Article I

As used in this agreement,

1. Nuclear reactor, byproduct material, person, source material, special nuclear material, and precautionary evacuation shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Commission.

2.(a) For facilities designed for producing substantial amounts of electricity and having a rated capacity of 100,000 electrical kilowatts or more, and except where otherwise specifically provided, amount of financial protection means the amount specified in Item 2 of the Attachment annexed hereto, as modified by paragraph 8, Article II, with respect to common occurrences, and the amount available as secondary financial protection (in the form of private liability insurance available under an industry retrospective rating plan providing for deferred retrospective premium charges).

(b) For all other facilities, and except where otherwise specifically provided, amount of financial protection means the amount specified in Item 2 of the Attachment annexed hereto, as modified by paragraph 8, Article II, with respect to common occurrences.

3. (a) Nuclear incident means any occurrence including an extraordinary nuclear occurrence or series of occurrences at the location or in the course of transportation causing bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of the radioactive material.

(b) Any occurrence including an extraordinary nuclear occurrence or series of occurrences causing bodily injury, sickness, disease or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive or other hazardous properties of—

i. The radioactive material discharged or dispersed from the location over a period of days, weeks, months or longer and also arising out of such properties of other material defined as the radioactive material in any other agreement or agreements entered into by the Commission under subsection 170(c) or (k) of the Act and so discharged or dispersed from the location as defined in any such other agreement; or

ii. The radioactive material in the course of transportation and also arising out of such properties of other material defined in any other agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act as the radioactive material and which is in the course of transportation shall be deemed to be a common occurrence. A common occurrence shall be deemed to constitute a single nuclear incident.

4. Extraordinary nuclear occurrence means an event which the Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, as amended.

5. In the course of transportation means in the course of transportation within the United States, or in the course of transportation outside the United States and any other nation, and moving from one person licensed by the Commission to another person licensed by the Commission, including handling or temporary storage incidental thereto, of the radioactive material to the location or from the location provided that:

(a) With respect to transportation of the radioactive material to the location, such transportation is not by pre-determination to be interrupted by the removal of the material from the transporting conveyance for any purpose other than the continuation of such transportation to the location or temporary storage incidental thereto;

(b) The transportation of the radioactive material from the location shall be deemed to end when the radioactive material is removed from the transporting conveyance for any purpose other than the continuation of transportation or temporary storage incidental thereto;

(c) In the course of transportation as used in this agreement shall not include transportation of the radioactive material to the location if the material is also in the course of transportation from any other location as defined in any other agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act.

6. Person indemnified means the licensee and any other person who may be liable for public liability.

7. Public liability means any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including all reasonable additional costs incurred by a State, or a political sudivision of a State, in the course of responding to a nuclear incident or precautionary evacuation), except (1) claims under State or Federal Workmen's Compensation Acts of employees of persons indemnified who are employed (a) at the location or, if the nuclear incident occurs in the course of transportation of the radioactive material, on the transporting vehicle, and (b) in connection with the licensee's possession, use, or transfer of the radioactive material; (2) claims arising out of an act of war; and (3) claims for loss of, or damage to, or loss of use of (a) property which is located at the location and used in connection with the licensee's possession, use or transfer of the radioactive material, and (b), if the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle, containers used in such transportation, and the radioactive material.

8. The location means the location described in Item 4 of the Attachment hereto.

9. The radioactive material means source, special nuclear, and byproduct material which (1) is used or to be used in, or is irradiated or to be irradiated by, the nuclear reactor or reactors subject to the license or licenses designated in the Attachment hereto, or (2) which is produced as the result of operation of said reactor(s).

10. United States when used in a geographical sense includes Puerto Rico and all territories and possessions of the United States.

Article II

1. The licensee undertakes and agrees to indemnify and hold harmless all persons indemnified, as their interest may appear, from public liability.

2. With respect to damage caused by a nuclear incident to property of any person legally liable for the incident, the licensee agrees to pay to such person those sums which such person would have been obligated to pay if such property had belonged to another, provided, that the obligation of the licensee under this paragraph 2 does not apply with respect to:

(a) Property which is located at the location and used in connection with the licensee's possession, use or transfer of the radioactive material;

(b) Property damage due to neglect of the person indemnified to use all reasonable means to save and preserve the property after knowledge of a nuclear incident;

(c) If the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle and containers used in such transportation; and

(d) The radioactive material.

3. Any obligations of the licensee under paragraphs 1 and 2 of this Article, and under subsection 53e(8) of the Act to indemnify the United States and the Commission from public liability shall not in the aggregate exceed the amount of financial protection with respect to any nuclear incident, including the reasonable costs of investigating and settling claims and defending suits for damage.

4. With respect to any extraordinary nuclear occurrence to which this agreement applies, the Commission, and the licensee on behalf of itself and other persons indemnified, insofar as their interests appear, each agree to waive:

(a) Any issue or defense as to the conduct of the claimant or fault of persons indemnified, including, but not limited to:

(1) Negligence;

(2) Contributory negligence;

(3) Assumption of the risk;

(4) Unforeseeable intervening causes, whether involving the conduct of a third person or an act of God.

As used herein, conduct of the claimant includes conduct of persons through whom the claimant derives his cause of action;

(b) Any issue or defense as to charitable or governmental immunity;

(c) Any issue or defense based on any statute of limitations if suit is instituted within 3 years from the date on which the claimant first knew, or reasonably could have known, of his injury or damage and the cause thereof.

The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action. The waivers shall be judicially enforceable in accordance with their terms by the claimant against the person indemnified.

5. The waivers set forth in paragraph 4, of this article:

(a) Shall not preclude a defense based upon a failure to take reasonable steps to mitigate damages;

(b) Shall not apply to injury or damage to a claimant or to a claimant's property which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant;

(c) Shall not apply to injury to a claimant who is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits therefor are either payable or required to be provided under any workmen's compensation or occupational disease law: Provided, however, That with respect to an extraordinary nuclear occurrence occurring at the facility, a claimant who is employed at the facility in connection with the construction of a nuclear reactor with respect to which no operating license has been issued by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the extraordinary nuclear occurrence takes place if:

(1) The claimant is employed exclusively in connection with the construction of a nuclear reactor, including all related equipment and installations at the facility, and

(2) No operating license has been issued by the NRC with respect to the nuclear reactor, and

(3) The claimant is not employed in connection with the possession, storage, use or transfer of nuclear material at the facility;

(d) Shall not apply to any claim for punitive or exemplary damages, provided, with respect to any claim for wrongful death under any State law which provides for damages only punitive in nature, this exclusion does not apply to the extent that the claimant has sustained actual damages, measured by the pecuniary injuries resulting from such death but not to exceed the maximum amount otherwise recoverable under such law;

(e) Shall be effective only with respect to those obligations set forth in this agreement and in contracts or other proof of financial protection;

(f) Shall not apply to, or prejudice the prosecution or defense of, any claim or portion of claim which is not within the protection afforded under (1) the limit of liability provisions under subsection 170(e), of the Atomic Energy Act of 1954, as amended, and (2) the terms of this agreement and the terms of contracts or other proof of financial protection.

6. The obligations of the licensee under this agreement shall apply only with respect to nuclear incidents occurring during the term of this agreement.

7. Upon the expiration or revocation of any license designated in Item 3 of the Attachment, the Commission will enter into an appropriate amendment of this agreement with the licensee reducing the amount of financial protection required under this Article; provided, that the licensee is then entitled to a reduction in the amount of financial protection under applicable Commission regulations and orders.

8. With respect to a common occurrence, if the sum of the amount of financial protection established under this agreement and the amount of financial protection established under all other applicable agreements exceeds an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection, the obligations of the licensee described in paragraph 3 of this Article shall not exceed a greater proportion of an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection than the amount of financial protection established under this agreement bears to the sum of such amount and the amounts of financial protection established under all other applicable agreements. As used in this paragraph, and in Article III, other applicable agreements means each other agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act in which agreement the nuclear incident is defined as a common occurrence.

9. The obligations of the licensee under this Article shall not be affected by any failure or default on the part of the Commission or the Government of the United States to fulfill any or all of its obligations under this agreement. Bankruptcy or insolvency of any person indemnified other than the licensee, or the estate of any person indemnified other than the licensee, shall not relieve the licensee of any of his obligations hereunder.

Article III

1. The Commission undertakes and agrees to indemnify and hold harmless the licensee and other persons indemnified, as their interest may appear, from public liability.

2. With respect to damage caused by a nuclear incident to property of any person legally liable for the nuclear incident, the Commission agrees to pay to such person those sums which such person would have been obligated to pay if such property had belonged to another; provided, that the obligation of the Commission under this paragraph 2 does not apply with respect to:

(a) Property which is located at the location and used in connection with the licensee's possession, use or transfer of the radioactive material;

(b) Property damage due to the neglect of the person indemnified to use all reasonable means to save and preserve the property after knowledge of a nuclear incident;

(c) If the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle and containers used in such transportation;

(d) The radioactive material.

3. [Reserved]

4. (a) The obligations of the Commission under this agreement shall apply only with respect to such public liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed the amount of financial protection.

(b) With respect to a common occurrence, the obligations of the Commission under this agreement shall apply only with respect to such public liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to Paragraph 2 of this Article) as in the aggregate exceed whichever of the following is lower: (1) The sum of the amount of financial protection established under this agreement and to all other applicable agreements; or (2) an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection.

5. The obligations of the Commission under this agreement shall apply only with respect to nuclear incidents occurring during the term of this agreement.

6. The obligations of the Commission under this and all other agreements and contracts to which the Commission is a party shall not with respect to any nuclear incident, in the aggregate exceed whichever of the following is the lowest: (a) $500,000,000; (b) $560,000,000 less the amount of financial protection required under this agreement; or (c) with respect to a common occurrence, $560,000,000 less the sum of the amounts of financial protection established under this agreement and all other applicable agreements.

7. The obligations of the Commission under this agreement, except to the licensee for damage to property of the licensee, shall not be affected by any failure on the part of the licensee to fulfill its obligations under this agreement. Bankruptcy or insolvency of the licensee or any other person indemnified shall not relieve the Commission of any of its obligations hereunder.

Article IV

1. When the Commission determines that the United States will probably be required to make indemnity payments under the provisions of this agreement, the Commission shall have the right to collaborate with the licensee and other persons indemnified in the settlement and defense of any claim (provided that no government indemnity that would otherwise be available to pay public liability claims is used for these purposes) and shall have the right (a) to require the prior approval of the Commission for the settlement or payment of any claim or action asserted against the licensee or other person indemnified for public liability or damage to property of persons legally liable for the nuclear incident which claim or action the licensee or the Commission may be required to indemnify under this agreement; and (b) to appear through the Attorney General of the United States on behalf of the licensee or other person indemnified, take charge of such action and settle or defend any such action. If the settlement or defense of any such action or claim is undertaken by the Commission, the licensee shall furnish all reasonable assistance in effecting a settlement or asserting a defense.

2. Neither this agreement nor any interest therein nor claim thereunder may be assigned or transferred without the approval of the Commission.

Article V

The parties agree that they will enter into appropriate amendments of this agreement to the extent that such amendments are required pursuant to the Atomic Energy Act of 1954, as amended, or licenses, regulations or orders of the Commission.

Article VI

The licensee agrees to pay to the Commission such fees as are established by the Commission pursuant to regulations or orders of the Commission.

Article VII

The term of this agreement shall commence as of the date and time specified in Item 6 of the attachment and shall terminate at the time of expiration of that license specified in Item 3 of the attachment, which is last to expire; provided that, except as may otherwise be provided in applicable regulations or orders of the Commission, the term of this agreement shall not terminate until all the radioactive material has been removed from the location and transportation of the radioactive material from the location has ended as defined in subparagraph 5(b), Article I. Termination of the term of this agreement shall not affect any obligation of the licensee or any obligation of the Commission under this agreement with respect to any nuclear incident occurring during the term of this agreement.

Article VIII

The following provisions are applicable to each licensee operating a facility designed for producing substantial amounts of electricity and having a rated capacity of 100,000 electrical kilowatts or more:

1. Each licensee is required to have and maintain financial protection in an amount specified in Item 2 annexed hereto, and the amount available as secondary financial protection (in the form of private liability insurance available under an industry retrospective rating plan providing for deferred premium charges): Provided, however, That under such a plan for deferred premium charges, such charges for each nuclear reactor which is licensed to operate shall not exceed $63,000,000 with respect to any single nuclear incident (plus any surcharge assessed under subsection 170o.(1)(E) of the Act) nor exceed $10,000,000 per incident within one calendar year. If the licensee fails to pay assessed deferred premiums, the Commission reserves the right to pay those premiums on behalf of the licensee and to recover the amount of such premiums from the licensee.

2. The Commission shall require the immediate submission of financial statements by those licensees who indicate, after an assessment of the restrospective premium by the insurance pools, that they will not pay the assessment. Such financial statements shall include, as a minimum, exhibits indicating internally generated funds from operations and accumulated retained earnings. Subsequent submission of financial statements by such licensees may be requested by the Commission, as required.

3. If premiums are paid by the Commission as provided in paragraph 1, payment by the Commission shall create a lien in the amount paid in favor of the United States upon all property and rights to property, whether real or personal, belonging to such licensee. The lien shall arise at the time payment is made by the Commission and shall continue until the liability for the amount (or a judgment against the licensee arising out of such liability) is satisfied or becomes unenforceable. The Commission will issue a certificate of release of any such lien if it finds that the liability for the amount has been fully satisfied or has become legally unenforceable.

4. If the Commission determines that the licensee is financially able to reimburse the Commission for a deferred premium payment made in its behalf, and the licensee, after notice of such determination by the Commission fails to make such reimbursement within 120 days, the Commission will take appropriate steps to suspend the license for 30 days. The Commission may take any further action as necessary if reimbursement is not made within the 30-day suspension period including, but not limited to, termination of the operating license or combined license.

United States Nuclear Regulatory Commission Indemnity Agreement No. ______ Attachment Item 1—Licensee Address Item 2—Amount of financial protection Item 3—License number or numbers Item 4—Location Item 5—The Indemnity Agreement designated above, of which this Attachment is a part, is effective as of ______M., on the ____________ day of __________, 19____.

For the United States Nuclear Regulatory Commission.

By ________________________ For the ________________________ (Name of licensee) By ________________________

Dated at Bethesda, MD, the ____________ day of __________, 19____.

[26 FR 3459, Apr. 22, 1961]

Editorial Note:For Federal Register citations affecting § 140.93, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 140.94 Appendix D—Form of indemnity agreement with Federal agencies.

This indemnity agreement No. D______ is entered into by and between the ________ (hereinafter referred to as the licensee) and the United States Nuclear Regulatory Commission (hereinafter referred to as the Commission) pursuant to subsection 170(c) of the Atomic Energy Act of 1954, as amended (hereinafter referred to as the Act).

Article I

As used in this agreement,

1. Nuclear reactor, byproduct material, person, source material, special nuclear material, and precautionary evacuation shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Commission.

2. (a) Nuclear incident means any occurrence including an extraordinary nuclear occurrence or series of occurrences at the location or in the course of transportation causing bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of the radioactive material.

(b) Any occurrence including an extraordinary nuclear occurrence or series of occurrences causing bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive or other hazardous properties of

(i) The radioactive material discharged or dispersed from the location over a period of days, weeks, months or longer and also arising out of such properties of other material defined as the radioactive material in any other agreement or agreements entered into by the Commission under subsection 170(c) or (k) of the Act and so discharged or dispersed from the location as defined in any such other agreement, or

(ii) The radioactive material in the course of transportation and also arising out of such properties of other material defined in any other agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act as the radioactive material and which is in the course of transportation shall be deemed to be a common occurrence. A common occurrence shall be deemed to constitute a single nuclear incident.

3. Extraordinary nuclear occurrence means an event which the Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, as amended.

4. In the course of transportation means in the course of transportation within the United States, or in the course of transportation outside the United States and any other nation, and moving from one person licensed by the Commission to another person licensed by the Commission, including handling or temporary storage incidental thereto, of the radioactive material to the location or from the location provided that:

(a) With respect to transportation of the radioactive material to the location, such transportation is not by predetermination to be interrupted by the removal of the material from the transporting conveyance for any purpose other than the continuation of such transportation to the location or temporary storage incidental thereto;

(b) The transportation of the radioactive material from the location shall be deemed to end when the radioactive material is removed from the transporting conveyance for any purpose other than the continuation of transportation or temporary storage incidental thereto;

(c) In the course of transportation as used in this agreement shall not include transportation of the radioactive material to the location if the material is also in the course of transportation from any other location as defined in any other agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act.

5. Person indemnified means the licensee and any other person who may be liable for public liability.

6. Public liability means any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including all reasonable additional costs incurred by a State, or a political subdivision of a State, in the course of responding to a nuclear incident or precautionary evacuation), except (1) claims under State of Federal Workmen's Compensation Acts of employees of persons indemnified who are employed (a) at the location or, if the nuclear incident occurs in the course of transportation of the radioactive material, on the transporting vehicle, and (b) in connection with the licensee's possession, use, or transfer of the radioactive material; (2) claims arising out of an act of war; and (3) claims for loss of, or damage to, or loss of use of (a) property which is located at the location and used in connection with the licensee's possession, use, or transfer of the radioactive material, and (b) if the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle, containers used in such transportation, and the radioactive material.

7. The location means the location described in Item 3 of the Attachment hereto.

8. The radioactive material means source, special nuclear, and byproduct material which (1) is used or to be used in, or is irradiated or to be irradiated by, the nuclear reactor or reactors subject to the license or licenses designated in the Attachment hereto, or (2) is produced as the result of operation of said reactor(s).

9. United States when used in a geographical sense includes Puerto Rico and all territories and possessions of the United States.

Article II

1. The Commission undertakes and agrees to indemnify and hold harmless the licensee and other persons indemnified, as their interest may appear, from public liability.

2. With respect to damage caused by a nuclear incident to property of any person legally liable for the nuclear incident, the Commission agrees to pay to such person those sums which such person would have been obligated to pay if such property had belonged to another; provided, that the obligation of the Commission under this paragraph 2 does not apply with respect to:

(a) Property which is located at the location and used in connection with the licensee's possession, use or transfer of the radioactive material;

(b) Property damage due to the neglect of the person indemnified to use all reasonable means to save and preserve the property after knowledge of a nuclear incident;

(c) If the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle and containers used in such transportation;

(d) The radioactive material.

3. [Reserved]

4. With respect to any extraordinary nuclear occurrence to which this agreement applies, the Commission, and the licensee on behalf of itself and other persons indemnified, insofar as their interests appear, each agree to waive:

(a) Any issue or defense as to the conduct of the claimant or fault of persons indemnified, including, but not limited to:

(1) Negligence;

(2) Contributory negligence;

(3) Assumption of the risk;

(4) Unforeseeable intervening causes, whether involving the conduct of a third person or an act of God.

As used herein, conduct of the claimant includes conduct of persons through whom the claimant derives his cause of action;

(b) Any issue or defense as to charitable or governmental immunity;

(c) Any issue or defense based on any statute of limitations if suit is instituted within 3 years from the date on which the claimant first knew, or reasonably could have known, of his injury or damage and the cause thereof.

The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action. The waivers shall be judicially enforceable in accordance with their terms by the claimant against the person indemnified.

5. The waivers set forth in paragraph 4 of this article:

(a) Shall not preclude a defense based upon a failure to take reasonable steps to mitigate damages;

(b) Shall not apply to injury or damage to a claimant or to a claimant's property which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant;

(c) Shall not apply to injury to a claimant who is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits therefor are either payable or required to be provided under any workmen's compensation or occupational disease law: Provided, however, That with respect to an extraordinary nuclear occurrence occurring at the facility, a claimant who is employed at the facility in connection with the construction of a nuclear reactor with respect to which no operating license has been issued by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the extraordinary nuclear occurrence takes place if:

(1) The claimant is employed exclusively in connection with the construction of a nuclear reactor, including all related equipment and installations at the facility, and

(2) No operating license has been issued by the NRC with respect to the nuclear reactor, and

(3) The claimant is not employed in connection with the possession, storage, use or transfer of nuclear material at the facility;

(d) Shall not apply to any claim for punitive or exemplary damages, provided, with respect to any claim for wrongful death under any State law which provides for damages only punitive in nature, this exclusion does not apply to the extent that the claimant has sustained actual damages, measured by the pecuniary injuries resulting from such death but not to exceed the maximum amount otherwise recoverable under such law;

(e) Shall be effective only with respect to those obligations set forth in this agreement;

(f) Shall not apply to, or prejudice the prosecution or defense of, any claim or portion of claim which is not within the protection afforded under (1) the limit of liability provisions under subsection 170(e), of the Atomic Energy Act of 1954, as amended, and (2) the terms of this agreement.

6. With respect to a common occurrence, the obligations of the Commission under this Article shall apply only with respect to such public liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed whichever of the following is lower: (1) The sum of the amount of financial protection established under all applicable agreements; or (2) an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection. As used in this Article applicable agreements means each agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act in which agreement the nuclear incident is defined as common occurrence.

7. The obligations of the Commission under this agreement shall apply only with respect to nuclear incidents occurring during the term of this agreement.

8. The obligations of the Commission under this and all other agreements and contracts to which the Commission is a party shall not with respect to any nuclear incident, in the aggregate exceed whichever of the following is the lower: (a) $500,000,000 or (b) with respect to a common occurrence, $560,000,000 less the sum of the amounts of financial protection established under all applicable agreements.

9. Bankruptcy or insolvency of any person indemnified or of the estate of any person indemnified shall not relieve the Commission of any of its obligations hereunder.

Article III

1. When the Commission determines that the United States will probably be required to make indemnity payments under the provisions of this agreement, the Commission shall have the right to collaborate with the licensee and other persons indemnified in the settlement and defense of any claim (provided that no government indemnity that would otherwise be available to pay public liability claims is used for these purposes) and shall have the right (a) to require the prior approval of the Commission for the settlement or payment of any claim or action asserted against the licensee or other persons indemnified for public liability or damage to property of persons legally liable for the nuclear incident which claim or action the licensee or the Commission may be required to indemnify under this agreement; and (b) to appear through the Attorney General of the United States on behalf of the licensee or other person indemnified, take charge of such action and settle or defend any such action. If the settlement or defense of any such action or claim is undertaken by the Commission, the licensee shall furnish all reasonable assistance in effecting a settlement or asserting a defense.

2. Neither this agreement nor any interest therein nor claim thereunder may be assigned or transferred without the approval of the Commission.

Article IV

The parties agree that they will enter into appropriate amendments of this agreement to the extent that such amendments are required pursuant to the Atomic Energy Act of 1954, as amended, or licenses, regulations or orders of the Commission.

Article V

The licensee agrees to pay to the Commission such fees as are established by the Commission pursuant to regulations or orders of the Commission.

Article VI

The term of this agreement shall commence as of the date and time specified in Item 4 of the attachment and shall terminate at the time of expiration of that license specified in Item 2 of the Attachment, which is the last to expire; provided that, except as may otherwise be provided in applicable regulations or orders of the Commission, the term of this agreement shall not terminate until all the radioactive material has been removed from the location and transportation of the radioactive material from the location has ended as defined in paragraph 4(b), Article I of this section. Termination of the term of this agreement shall not affect any obligation of the licensee or any obligation of the Commission under this agreement with respect to any nuclear incident occurring during the term of this agreement.

United States Nuclear Regulatory Commission Indemnity Agreement No. D-______ attachment Item 1—Licensee Address Item 2—License number or numbers Item 3—Location Item 4—The indemnity agreement designated above, of which this Attachment is a part, is effective as of ______ m., on the ______________ day of __________, 19____.

For the United States Nuclear Regulatory Commission.

By ________________________ For the ________________________ (Name of licensee) By ________________________

Dated at Bethesda, MD, the ______________ day of __________, 19____.

[27 FR 2886, Mar. 29, 1962]

Editorial Note:For Federal Register citations affecting § 140.94, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 140.95 Appendix E—Form of indemnity agreement with nonprofit educational institutions.

This indemnity agreement No. E-______ is entered into by and between the ________ (hereinafter referred to as the licensee) and the United States Nuclear Regulatory Commission (hereinafter referred to as the Commission) pursuant to subsection 170(k) of the Atomic Energy Act of 1954, as amended (hereinafter referred to as the Act).

Article I

As used in this agreement,

1. Nuclear reactor, byproduct material, person, source material, special nuclear material, and precautionary evacuation shall have the meanings given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Commission.

2. (a) Nuclear incident means any occurrence including an extraordinary nuclear occurrence or series of occurrences at the location or in the course of transportation causing bodily injury, sickness, disease, or death, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of the radioactive material.

(b) Any occurrence including an extraordinary nuclear occurrence or series of occurrences causing bodily injury, sickness, disease or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of

i. The radioactive material discharged or dispersed from the location over a period of days, weeks, months or longer and also arising out of such properties of other material defined as the radioactive material in any other agreement or agreements entered into by the Commission under subsection 170(c) or (k) of the Act and so discharged or dispersed from the location as defined in any such other agreement; or

ii. The radioactive material in the course of transportation and also arising out of such properties of other material defined in any other agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act as the radioactive material and which is in the course of transportation shall be deemed to be a common occurrence. A common occurrence shall be deemed to constitute a single nuclear incident.

3. Extraordinary nuclear occurrence means an event which the Commission has determined to be an extraordinary nuclear occurrence as defined in the Atomic Energy Act of 1954, as amended.

4. In the course of transportation means in the course of transportation within the United States, or in the course of transportation outside the United States and any other nation, and moving from one person licensed by the Commission to another person licensed by the Commission, including handling or temporary storage incidental thereto, of the radioactive material to the location or from the location provided that:

(a) With respect to transportation of the radioactive material to the location, such transportation is not by predetermination to be interrupted by the removal of the material from the transporting conveyance for any purpose other than the continuation of such transportation to the location or temporary storage incidental thereto;

(b) The transportation of the radioactive material from the location shall be deemed to end when the radioactive material is removed from the transporting conveyance for any purpose other than the continuation of transportation or temporary storage incidental thereto;

(c) In the course of transportation as used in this agreement shall not include transportation of the radioactive material to the location if the material is also in the course of transportation from any other location as defined in any other agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act.

5. Person indemnified means the licensee and any other person who may be liable for public liability.

6. Public liability means are legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including all reasonable additional costs incurred by a State, or a political subdivision of a State, in the course of responding to a nuclear incident or precautionary evacuation), except (1) claims under State or Federal Workmen's Compensation Act of employees of persons indemnified who are employed (a) at the location or, if the nuclear incident occurs in the course of transportation of the radioactive material, or the transporting vehicle, and (b) in connection with the licensee's possession, use, or transfer of the radioactive material; (2) claims arising out of an act of war; and (3) claims for loss of, or damage to, or loss of use of (a) property which is located at the location and used in connection with the licensee's possession, use, or transfer of the radioactive material, and (b) if the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle, containers used in such transportation, and the radioactive material.

7. The location means the location described in Item 3 of the Attachment hereto.

8. The radioactive material means source, special nuclear, and byproduct material which (1) is used or to be used in, or is irradiated or to be irradiated by, the nuclear reactor or reactors subject to the license or licenses designated in the Attachment hereto, or (2) which is produced as the result of operation of said reactor(s).

9. United States when used in a geographical sense includes Puerto Rico and all territories and possessions of the United States.

Article II

1. Any obligations of the licensee under subsection 53e(8) of the Act to indemnify the United States and the Commission from public liability shall not in the aggregate exceed $250,000 with respect to any nuclear incident.

2. With respect to any extraordinary nuclear occurrence to which this agreement applies, the Commission, and the licensee on behalf of itself and other persons indemnified, insofar as their interests appear, each agree to waive:

(a) Any issue or defense as to the conduct of the claimant or fault of persons indemnified, including, but not limited to

(1) Negligence;

(2) Contributory negligence;

(3) Assumption of the risk;

(4) Unforeseeable intervening causes, whether involving the conduct of a third person or an act of God.

As used herein, conduct of the claimant includes conduct of persons through whom the claimant derives his cause of action;

(b) Any issue or defense as to charitable or governmental immunity:

(c) Any issue or defense based on any statute of limitations if suit is instituted within 3 years from the date on which the claimant first knew, or reasonably could have known, of his injury or damage and the cause thereof.

The waiver of any such issue or defense shall be effective regardless of whether such issue or defense may otherwise be deemed jurisdictional or relating to an element in the cause of action. The waivers shall be judicially enforceable in accordance with their terms by the claimant against the person indemnified.

3. The waivers set forth in paragraph 2 of this article:

(a) Shall not preclude a defense based upon a failure to take reasonable steps to mitigate damages;

(b) Shall not apply to injury or damage to a claimant or to a claimant's property which is intentionally sustained by the claimant or which results from a nuclear incident intentionally and wrongfully caused by the claimant;

(c) Shall not apply to injury to a claimant who is employed at the site of and in connection with the activity where the extraordinary nuclear occurrence takes place if benefits therefor are either payable or required to be provided under any workmen's compensation or occupational disease law: Provided, however, That with respect to an extraordinary nuclear occurrence occurring at the facility, a claimant who is employed at the facility in connection with the construction of a nuclear reactor with respect to which no operating license has been issued by the Nuclear Regulatory Commission shall not be considered as employed in connection with the activity where the extraordinary nuclear occurrence takes place if:

(1) The claimant is employed exclusively in connection with the construction of a nuclear reactor, including all related equipment and installations at the facility, and

(2) No operating license has been issued by the NRC with respect to the nuclear reactor, and

(3) The claimant is not employed in connection with the possession, storage, use, or transfer of nuclear material at the facility;

(d) Shall not apply to any claim for punitive or exemplary damages, provided, with respect to any claim for wrongful death under any State law which provides for damages only punitive in nature, this exclusion does not apply to the extent that the claimant has sustained actual damages, measured by the pecuniary injuries resulting from such death but not to exceed the maximum amount otherwise recoverable under such law;

(e) Shall be effective only with respect to those obligations set forth in this agreement;

(f) Shall not apply to, or prejudice the prosecution or defense of, any claim or portion of claim which is not within the protection afforded under (1) the limit of liability provisions under subsection 170(e) of the Atomic Energy Act of 1954, as amended, and (b) the terms of this agreement.

Article III

1. The Commission undertakes and agrees to indemnify and hold harmless the licensee and other persons indemnified, as their interest may appear, from public liability.

2. With respect to damage caused by a nuclear incident to property of any person legally liable for the nuclear incident, the Commission agrees to pay to such person those sums which such person would have been obligated to pay if such property had belonged to another; provided, that the obligation of the Commission under this paragraph 2 does not apply with respect to:

(a) Property which is located at the location and used in connection with the licensee's possession, use or transfer of the radioactive material;

(b) Property damage due to the neglect of the person indemnified to use all reasonable means to save and preserve the property after knowledge of a nuclear incident;

(c) If the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle and containers used in such transportation;

(d) The radioactive material.

3. [Reserved]

4. (a) The obligations of the Commission under this agreement shall apply only with respect to such public liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed $250,000.

(b) With respect to a common occurrence, the obligations of the Commission under this agreement shall apply only with respect to such public liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed whichever of the following is lower: (1) The sum of the amounts of financial protection established under all applicable agreements; or (2) an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection. As used in this Article applicable agreements means each agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act in which agreement the nuclear incident is defined as a common occurrence.

5. The obligations of the Commission under this agreement shall apply only with respect to nuclear incidents occurring during the term of this agreement.

6. The obligations of the Commission under this and all other agreements and contracts to which the Commission is a party shall not with respect to any nuclear incident, in the aggregate exceed which ever of the following is the lower: (a) $500,000,000 or (b) with respect to a common occurrence, $560,000,000 less the sum of the amounts of financial protection established under all applicable agreements.

7. If the licensee is immune from public liability because it is a state agency, the Commission shall make payments under the agreement in the same manner and to the same extent as the Commission would be required to do if the licensee were not such a state agency.

8. The obligations of the Commission under this agreement, except to the licensee for damage to property of the licensee, shall not be affected by any failure on the part of the licensee to fulfill its obligations under this agreement. Bankruptcy or insolvency of the licensee or any other person indemnified or of the estate of the licensee or any other person indemnified shall not relieve the Commission of any of its obligations hereunder.

Article IV

1. When the Commission determines that the United States will probably be required to make indemnity payments under the provisions of this agreement, the Commission shall have the right to collaborate with the licensee and other persons indemnified in the settlement and defense of any claim including such legal costs of the licensee as are approved by the Commission and shall have the right (a) to require the prior approval of the Commission for the settlement or payment of any claim or action asserted against the licensee or other person indemnified for public liability or damage to property of persons legally liable for the nuclear incident which claim or action the licensee or the Commission may be required to indemnify under this agreement; and (b) to appear through the Attorney General of the United States on behalf of the licensee or other person indemnified, take charge of such action or defend any such action. If the settlement or defense of any such action or claim is undertaken by the Commission, the licensee shall furnish all reasonable assistance in effecting a settlement or asserting a defense.

2. Neither this agreement nor any interest therein nor claim thereunder may be assigned or transferred without the approval of the Commission.

Article V

The parties agree that they will enter into appropriate amendments of this agreement to the extent that such amendments are required pursuant to the Atomic Energy Act of 1954, as amended, or licenses, regulations or orders of the Commission.

Article VI

The licensee agrees to pay to the Commission such fees as are established by the Commission pursuant to regulations or orders of the Commission.

Article VII

The term of this agreement shall commence as of the date and time specified in Item 4 of the Attachment and shall terminate at the time of expiration of that license specified in Item 2 of the Attachment, which is the last to expire; provided that, except as may otherwise be provided in applicable regulations or orders of the Commission, the term of this agreement shall not terminate until all the radioactive material has been removed from the location and transportation of the radioactive material from the location has ended as defined in subparagraph 4(b), Article I. Termination of the term of this agreement shall not affect any obligation of the licensee or any obligation of the Commission under this agreement with respect to any nuclear incident occurring during the term of this agreement.

United States Nuclear Regulatory Commission Indemnity Agreement No. E-____ attachment Item 1—Licensee __________________________ Address __________________________ Item 2—License number or numbers ______ Item 3—Location __________________________ Item 4—The indemnity agreement designated above, of which this Attachment is a part, is effective as of ______ m., on the ______________ day of ____________________, 19____.

For the United States Nuclear Regulatory Commission.

By ____________________________ For the ____________________________ By ____________________________ (Name of licensee)

Dated at Bethesda, MD, the ____________ day of ________________, 19____.

[27 FR 2887, Mar. 29, 1962]

Editorial Note:For Federal Register citations affecting § 140.95, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 140.96 Appendix F—Indemnity locations.

(a) Geographical boundaries of indemnity locations. (1) In every indemnity agreement between the Commission and a licensee which affords indemnity protection for the preoperational storage of fuel at the site of a nuclear power reactor under construction, the geographical boundaries of the indemnity location will include the entire construction area of the nuclear power reactor, as determined by the Commission. Such area will not necessarily be coextensive with the indemnity location which will be established at the time an operating license or combined license under 10 CFR part 52 is issued for such additional nuclear power reactors.

(2) In every indemnity agreement between the Commission and a licensee which affords indemnity protection for an existing nuclear power reactor, the geographical boundaries of the indemnity location shall include the entire construction area of any additional nuclear power reactor as determined by the Commission, built as part of the same power station by the same licensee. Such area will not necessarily be coextensive with the indemnity location which will be established at the time an operating license or combined license is issued for such additional nuclear power reactors.

(3) This section is effective May 1, 1973, as to construction permits issued before March 2, 1973, and, as to construction permits and combined licenses issued on or after March 2, 1973, the provisions of this section will apply no later than such time as a construction permit or combined license is issued authorizing construction of any additional nuclear power reactor.

(b) [Reserved]

[72 FR 49565, Aug. 28, 2007]

§ 140.107 Appendix G—Form of indemnity agreement with licensees processing plutonium for use in plutonium processing and fuel fabrication plants and furnishing insurance policies as proof of financial protection.

This Indemnity Agreement No. ______ is entered into by and between ______________ (hereinafter referred to as the licensee) and the United States Nuclear Regulatory Commission (hereinafter referred to as the Commission) pursuant to subsection 170(c) of the Atomic Energy Act of 1954, as amended (hereinafter referred to as the Act), and section 201 of the Energy Reorganization Act of 1974, as amended.

Article I

As used in this agreement:

1. By product material, person, source material, special nuclear material, precautionary evacuation, and extraordinary nuclear occurrence shall have the meaning given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Commission.

2. Except where otherwise specifically provided, amount of financial protection means the amount specified in Item 2a and b, of the Attachment annexed hereto as modified by paragraph 6, Article II, with respect to common occurrences.

3. (a) Nuclear incident means any occurrence including an extraordinary nuclear occurrence, or series of occurrences at the location or in the course of transportation causing bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of the radioactive material.

(b) Any occurrence, including an extraordinary nuclear occurrence, or series of occurrences causing bodily injury, sickness, disease or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of:

(i) The radioactive material discharged or dispersed from the location over a period of days, weeks, months or longer and also arising out of such properties of other material defined as the radioactive material in any other agreement or agreements entered into by the Commission under subsection 170(c) or (k) of the Act and so discharged or dispersed from the location as defined in any such other agreement, or

(ii) The radioactive material in the course of transportation and also arising out of such properties of other material defined in any other agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act as the radioactive material and which is in the course of transportation shall be deemed to be a common occurrence. A common occurrence shall be deemed to constitute a single nuclear incident.

4. In the course of transportation means in the course of transportation within the United States, or in the course of transportation outside the United States and any other nation, and moving from one person licensed by the Commission to another person licensed by the Commission, including handling or temporary storage incidental thereto, of the radioactive material to the location or from the location provided that:

(a) With respect to transportation of the radioactive material to the location, such transportation is not by predetermination to be interrupted by the removal of the material from the transporting conveyance for any purpose other than the continuation of such transportation to the location or temporary storage incidental thereto;

(b) The transportation of the radioactive material from the location shall be deemed to end when the radioactive material is removed from the transporting conveyance for any purpose other than the continuation of transportation or temporary storage incidental thereto;

(c) In the course of transportation as used in this agreement shall not include transportation of the radioactive material to the location if the material is also in the course of transportation from any other location as defined in any other agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act.

5. Person indemnified means the licensee and any other person who may be liable for public liability.

6. Public liability means any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including all reasonable additional costs incurred by a State, or a political subdivision of a State, in the course of responding to a nuclear incident or precautionary evacuation), except (1) claims under State or Federal Workmen's Compensation Acts of employees of persons indemnified who are employed (a) at the location or, if the nuclear incident occurs in the course of transportation of the radioactive material, on the transporting vehicle, and (b) in connection with the licensee's possession, use or transfer of the radioactive material; (2) claims arising out of an act of war; and (3) claims for loss of or damage to, or loss of use of (a) property which is located at the location and used in connection with the licensee's possession, use, or transfer of the radioactive material, and (b) if the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle, containers used in such transportation, and the radioactive material.

7. The location means the location described in Item 4 of the Attachment hereto.

8. The radioactive material means (a) any source, special nuclear, or byproduct material which (1) is both used or to be used in, or is processed or to be processed by, the licensee's plutonium processing and fuel fabrication plant or plants and is subject to the license or licenses designated in the Attachment hereto, or (2) is produces as the result of the operation of said plant or plants or (b) any source, special nuclear, or byproduct material which is waste or contamination from material described in paragraph 8(a). The words used or to be used and processed or to be processed in this paragraph cover source, special nuclear or byproduct material which is in the course of transportation as used in the agreement or is received at the plant for use or processing in the plant but which is, in fact, for any reason, not so used or processed.

9. United States when used in a geographical sense includes Puerto Rico and all territories and possessions of the United States.

Article II

1. At all times during the term of the license or licenses designated in Item 3 of the Attachment hereto, the licensee will maintain financial protection in the amount specified in Item 2 of the Attachment and in the form of the nuclear energy liability insurance policy designated in the Attachment. If more than one license is designated in Item 3 of the Attachment, the licensee agrees to maintain such financial protection until the end of the term of that license which will be the last to expire. The licensee shall, notwithstanding the expiration, termination, modification, amendment, suspension of revocation of any license or licenses designated in Item 3 of the Attachment, maintain such financial protection in effect until all the radioactive material has been removed from the location and transportation of the radioactive material from the location has ended as defined in subparagraph 4(b), Article I, or until the Commission authorizes the termination or the modification of such financial protection. The Commission will not unreasonably withhold such authorization.

2. In the event of any payment by the insurer or insurers under a policy or policies specified in Item 5 of the Attachment hereto which reduces the aggregate limit of such policy or policies below the amount of financial protection, the licensee will promptly apply to his insurers for reinstatement of the amount specified in Item 2a of the Attachment (without reference to paragraph b of Item 2) and will make all reasonable efforts to obtain such reinstatement. In the event that the licensee has not obtained reinstatement of such amount within ninety days after the date of such reduction, and in the absence of good cause shown to the contrary, the Commission may issue an order requiring the licensee to furnish financial protection for such amount in another form.

3. Any obligations of the licensee under subsection 53e(8) of the Act to indemnify the United States and the Commission from public liability, together with any public liability satisfied by the insurers under the policy or policies designated in the Attachment hereto, shall not in the aggregate exceed the amount of financial protection with respect to any nuclear incident, including the reasonable costs of investigating and settling claims and defending suits for damage.

4. The obligations of the licensee under this agreement shall apply only with respect to nuclear incidents occurring during the term of this agreement.

5. Upon the expiration or revocation of any license designated in Item 3 of the Attachment, the Commission will enter into an appropriate amendment of this agreement with the licensee reducing the amount of financial protection required under this Article: provided, that the licensee is then entitled to a reduction in the amount of financial protection under applicable Commission regulations and orders.

6. With respect to any common occurrence,

(a) If the sum of the limit of liability of any Nuclear Energy Liability-Property Insurance Association policy designated in Item 5 of the Attachment and the limits of liability of all other nuclear energy liability insurance policies (facility form) applicable to such common occurrence and issued by Nuclear Energy Liability-Property Insurance Association exceeds $155,000,000, the amount of financial protection specified in Item 2 a and b of the Attachment shall be deemed to be reduced by that proportion of the difference between said sum and $155,000,000 as the limit of liability of the Nuclear Energy Liability-Property Insurance Association policy designated in Item 5 of the Attachment bears to the sum of the limits of liability of all nuclear energy liability insurance policies (facility form) applicable to such common occurrence and issued by Nuclear Energy Liability-Property Insurance Association;

(b) If the sum of the limit of liability of any Mutual Atomic Energy Liability Underwriters policy designated in Item 5 of the Attachment and the limits of liability of all other nuclear energy liability insurance policies (facility form) applicable to such common occurrence and issued by Mutual Atomic Energy Liability Underwriters exceeds $45,000,000, the amount of financial protection specified in Item 2 a and b of the Attachment shall be deemed to be reduced by that proportion of the difference between said sum and $45,000,000 as the limit of liability of the Mutual Atomic Energy Liability Underwriters policy designated in Item 5 of the Attachment bears to the sum of the limits of liability of all nuclear energy liability insurance policies (facility form) applicable to such common occurrence and issued by Mutual Atomic Energy Liability Underwriters;

(c) If any of the other applicable agreements is with a person who has furnished financial protection in a form other than a nuclear energy liability insurance policy (facility form) issued by Nuclear Energy Liability-Property Insurance Association or Mutual Atomic Energy Liability Underwriters, and if also the sum of the amount of financial protection established under this agreement and the amounts of financial protection established under all other applicable agreements exceeds an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection, the obligations of the licensee shall not exceed a greater proportion of an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection than the amount of financial protection established under this agreement bears to the sum of such amount and the amounts of financial protection established under all other applicable agreements.

(d) As used in this paragraph 6., Article II and in Article III, other applicable agreements means each other agreement entered into by the Commission pursuant to subsection 170(c). of the Act in which agreement the nuclear incident is defined as a common occurrence. As used in this paragraph 6., Article II, the obligations of the licensee means the obligations of the licensee under subsection 53e(8) of the Act to indemnify the United States and the Commission from public liability, together with any public liability satisfied by the insurers under the policy or policies designated in the Attachment, and the reasonable costs incurred by the insurers in investigating and settling claims and defending suits for damage.

7. The obligations of the licensee under this Article shall not be affected by any failure or default on the part of the Commission or the Government of the United States to fulfill any or all of its obligations under this agreement. Bankruptcy or insolvency of any person indemnified other than the licensee, or of the estate of any person indemnified other than the licensee, shall not relieve the licensee of any of its obligations hereunder.

Article III

1. The Commission undertakes and agrees to indemnify and hold harmless the licensee and other persons indemnified, as their interest may appear, from public liability.

2. With respect to damage caused by a nuclear incident to property of any person legally liable for the nuclear incident, the Commission agrees to pay to such person those sums which such person would have been obligated to pay if such property had belonged to another; provided, that the obligation of the Commission under this paragraph 2 does not apply with respect to:

(a) Property which is located at the location described in Item 4 of the Attachment or at the location described in Item 3 of the declarations attached to any nuclear energy liability insurance policy designated in Item 5 of the Attachment;

(b) Property damage due to the neglect of the person indemnified to use all reasonable means to save and preserve the property after knowledge of a nuclear incident;

(c) If the nuclear incident occurs in the course of transportation of the raidoactive material, the transporting vehicle and containers used in such transportation;

(d) The radioactive material.

3. [Reserved]

4. (a) The obligations of the Commission under this agreement shall apply only with respect to such public liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed the amount of financial protection.

(b) With respect to a common occurrence, the obligations of the Commission under this agreement shall apply only with respect to such public liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed $200,000,000.

5. The obligations of the Commission under this agreement shall apply only with respect to nuclear incidents occurring during the term of this agreement.

6. The obligations of the Commission under this and all other agreements and contracts to which the Commission is a party shall not, with respect to any nuclear incident, in the aggregate exceed whichever of the following is the lowest: (a) $500,000,000; (b) $560,000,000 less the amount of financial protection required under this agreement; or (c) with respect to a common occurrence, $560,000,000 less the sum of the amounts of financial protection established under this agreement and all other applicable agreements.

7. The obligations of the Commission under this agreement, except to the licensee for damage to property of the licensee, shall not be affected by any failure on the part of the licensee to fulfill its obligations under this agreement. Bankruptcy or insolvency of the licensee or any other person indemnified, or of the estate of the licensee or any other person indemnified, shall not relieve the Commission of any of its obligations hereunder.

Article IV

1. When the Commission determines that the United States will probably be required to make indemnity payments under the provisions of this agreement, the Commission shall have the right to collaborate with the licensee and other persons indemnified in the settlement and defense of any claim (provided that no government indemnity that would otherwise be available to pay public liability claims is used for these purposes) and shall have the right (a) to require the prior approval of the Commission for the settlement or payment of any claim or action asserted against the licensee or other person indemnified for public liability or damage to property of persons legally liable for the nuclear incident which claim or action the licensee or the Commission may be required to indemnify under this agreement; and (b) to appear through the Attorney General of the United States on behalf of the licensee or other person indemnified, take charge of such action and settle or defend any such action. If the settlement or defense of any such action or claim is undertaken by the Commission, the licensee shall furnish all reasonable assistance in effecting a settlement or asserting a defense.

2. Neither this agreement nor any interest therein nor claim thereunder may be assigned or transferred without the approval of the Commission.

Article V

The parties agree that they will enter into appropriate amendments of this agreement to the extent that such amendments are required pursuant to the Atomic Energy Act of 1954, as amended, or licenses, regulations or orders of the Commission.

Article VI

The licensee agrees to pay the Commission such fees as are established by the Commission pursuant to regulations or others of the Commission.

Article VII

The term of this agreement shall commence as of the date and time specified in Item 6 of the Attachment and shall terminate at the time of expiration of that license specified in Item 3 of the Attachment, which is the last to expire; provided that, except as may otherwise be provided in applicable regulations or orders of the Commission, the term of this agreement shall not terminate until all the radioactive material has been removed from the location and transportation of the radioactive material from the location has ended as defined in paragraph 4(b), Article I. Termination of the term of this agreement shall not affect any obligation of the licensee or the Commission under this agreement with respect to any nuclear incident occurring during the term of this agreement.

United States Nuclear Regulatory Commission attachment

Indemnity Agreement No. ________________

Item 1—Licensee. __________________________

Item 2—

a. Amount of financial protection ________

b. With respect to any nuclear incident, the amount specified in Item 2a of this Attachment shall be deemed to be (i) reduced to the extent that any payment made by the insurer or insurers under a policy or policies specified in Item 5 of this Attachment reduces the aggregate amount of such insurance policies below the amount specified in Item 2a and (ii) restored to the extent that, following such reduction, the aggregate amount of such insurance polices is reinstated.

Item 3—License number or numbers______

Item 4—Location __________________________

Item 5—Insurance Policy No.(s)____________

Item 6—The indemnity agreement designated above, of which this Attachment is a part, is effective as of 12:01 a.m., on the ______________ day of ______________, 19____.

For the U.S. Nuclear Regulatory Commission.

For By

Dated at Bethesda, MD, the ________

day of __________ 19____.

[42 FR 51, Jan. 3, 1977, as amended at 42 FR 20141, Apr. 18, 1977; 44 FR 20633, Apr. 6, 1979; 44 FR 24045, Apr. 24, 1979; 45 FR 37410, June 3, 1980; 49 FR 11152, Mar. 26, 1984; 54 FR 24160, June 6, 1989]

§ 140.108 Appendix H—Form of indemnity agreement with licensees possessing plutonium for use in plutonium processing and fuel fabrication plants and furnishing proof of financial protection in the form of the licensee's resources.

This Indemnity Agreement No. ______ is entered into by and between ______ (hereinafter referred to as the licensee) and the United States Nuclear Regulatory Commission (hereinafter referred to as the Commission) pursuant to subsection 170(c) of the Atomic Energy Act of 1954, as amended (hereinafter referred to as the Act), and Section 201 of the Energy Reorganization Act of 1974, as amended.

Article I

As used in this agreement:

1. Byproduct material, person, source material, special nuclear material, precautionary evacuation, and extraordinary nuclear occurrence shall have the meaning given them in the Atomic Energy Act of 1954, as amended, and the regulations issued by the Commission.

2. Amount of financial protection means the amount specified in Item 2 or the Attachment annexed hereto.

3. Nuclear incident means any occurrence including an extraordinary nuclear occurrence, or series of occurrences at the location or in the course of transportation causing bodily injury, sickness, disease, or death, or loss of or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of the radioactive material.

(b) Any occurrence, including an extraordinary nuclear occurrence of series of occurrences causing bodily injury, sickness, disease or death, or loss or damage to property, or loss of use of property, arising out of or resulting from the radioactive, toxic, explosive, or other hazardous properties of

i. The radioactive material discharged or dispersed from the location over a period of days, weeks, months or longer and also arising out of such properties of other material defined as the radioactive material in any other agreement or agreements entered into by the Commission under subsection 170(c) or (k) of the Act and so discharged or dispersed from the location as defined in any such other agreement, or

ii. The radioactive material in the course of transportation and also arising out of such properties of other material defined in any other agreement entered into the Commission pursuant to subsection 170(c) or (k) of the Act as the radioactive material and which is in the course of transportation shall be deemed to be a common occurrence. A common occurrence whall be deemed to constitute a single nuclear incident.

4. In the course of transportation means in the course of transportation within the United States, or in the course of transportation outside the United States and any other nation, and moving from one person licensed by the Commission to another person licensed by the Commission, including handling or temporary storage incidental thereto, of the radioactive material to the location or from the location provided that:

(a) With respect to transportation of the radioactive material to the location, such transportation is not be predetermination to be interrupted by the removal of the material from the transporting conveyance for any purpose other than the continuation of such transportation to the location or temporary storage incidental thereto:

(b) The transportation of the radioactive material from the location shall be deemed to end when the radioactive material is removed from the transporting conveyance for any purpose other than the continuation of transportation or temporary storage incidental thereto:

(c) In the course of transportation as used in this agreement shall not include transportation of the radioactive material to the location if the material is also in the course of transportation from any other location as defined in any other agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act.

5. Person indemnified means the licensee and any other person who may be liable for public liability.

6. Public liability means any legal liability arising out of or resulting from a nuclear incident or precautionary evacuation (including all reasonable additional costs incurred by a State, or a political subdivision of a State, in the course of responding to a nuclear incident or precautionary evacuation), except (1) claims under State or Federal Workmen's Compensation Acts of employees of persons indemnified who are employed (a) at the location or, if the nuclear incident occurs in the course of transportation of the radioactive material, on the transporting vehicle, and (b) in connection with the licensee's possession, use or transfer of the radioactive material; (2) claims arising out of an act of war; and (3) claims for loss of, or damage to, or loss of use of (a) property which is located at the location and used in connection with the licensee's possession, use, or transfer of the radioactive material, and (b) if the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle, containers used in such transportation, and the radioactive material.

7. The location means the location described in Item 4 of the Attachment hereto.

8. The radioactive material means (a) any source, special nuclear, or byproduct material which (1) is both used or to be used in, or is processed or to be processed by, the licensee's plutonium processing and fuel fabrication plant or plants and is subject to the license or licenses designated in the Attachment hereto, or (2) is produced as the result of the operation of said plant or plants or (b) any source special nuclear, or byproduct material which is waste or contamination from material described in paragraph 8(a). The words used or to be used and processed or to be processed in this paragraph cover source, special nuclear or byproduct material which is in the course of transportation as used in the agreement or is received at the plant for use or processing in the plant but which is, in fact, for any reason, not so used or processed.

9. United States when used in a geographical sense includes Puerto Rico and all territories and possessions of the United States.

Article II

1. The licensee undertakes and agrees to indemnify and hold harmless all persons indemnified, as their interest may appear, from public liability.

2. With respect to damage caused by a nuclear incident to property of any person legally liable for the incident, the licensee agrees to pay to such person those sums which such person would have been obligated to pay if such property had belonged to another; provided, that the obligation of the licensee under this paragraph 2 does not apply with respect to:

(a) Property which is located at the location and used in connection with the licensee's possession, use or transfer of the radioactive material;

(b) Property damage due to neglect of the person indemnified to use all reasonable means to save and preserve the property after knowledge of a nuclear incident;

(c) If the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle and containers used in such transportation; and

(d) The radioactive material.

3. Any obligations of the licensee under paragraphs 1 and 2 of this Article, and subsection 53e(8) of the Act to indemnify the United States and the Commission from public liability shall not in the aggregate exceed the amount of financial protection with respect to any nuclear incident.

4. The obligations of the licensee under this agreement shall apply only with respect to nuclear incidents occurring during the term of this agreement.

5. Upon the expiration or revocation of any license designated in Item 3 of the Attachment, the Commission will enter into an appropriate amendment of this agreement with the licensee reducing the amount of financial protection required under this Article; provided, that the licensee is then entitled to a reduction in the amount of financial protection under applicable Commission regulations and orders.

6. With respect to any common occurrence, if the sum of the amount of financial protection established under this agreement and the amount of financial protection established under all other applicable agreements exceeds an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection, the obligations of the licensee described in paragraph 3 of this Article shall not exceed a greater proportion of an amount equal to the sum of $200,000,000 and the amount available as secondary financial protection than the amount of financial protection established under this agreement bears to the sum of such amount and the amounts of financial protection established under all other applicable agreements. As used in this paragraph, and in Article III, other applicable agreements means each other agreement entered into by the Commission pursuant to subsection 170(c) or (k) of the Act in which agreement the nuclear incident is defined as a common occurrence.

7. The obligations of the licensee under this Article shall not be affected by any failure or default on the part of the Commission or the Government or the United States to fulfill any or all of its obligations under this agreement. Bankruptcy or insolvency of any person indemnified other than the licensee, or of the estate of any person indemnified other than the licensee shall not relieve the licensee of any of its obligations hereunder.

Article III

1. The Commission undertakes and agrees to indemnify and hold harmless the licensee and other persons indemnified, as their interest may appear, from public liability.

2. With respect to damage caused by a nuclear incident to property of any person legally liable for the nuclear incident, the Commission agrees to pay to such person those sums which such person would have been obligated to pay if such property had belonged to another; provided, that the obligation of the Commission under this paragraph 2 does not apply with respect to:

(a) Property which is located at the location and used in connection with the licensee's possession, use or transfer of the radioactive material;

(b) Property damage due to the neglect of the person indemnified to use all reasonable means to save and preserve the property after knowledge of a nuclear incident;

(c) If the nuclear incident occurs in the course of transportation of the radioactive material, the transporting vehicle and containers used in such transportation;

(d) The radioactive material.

3. [Reserved]

4. (a) The obligations of the Commission under this agreement shall apply only with respect to such public liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed the amount of financial protection.

(b) With respect to a common occurrence, the obligations of the Commission under this agreement shall apply only with respect to such public liability and such damage to property of persons legally liable for the nuclear incident (other than such property described in the proviso to paragraph 2 of this Article) as in the aggregate exceed $200,000,000.

5. The obligations of the Commission under this agreement shall apply only with respect to nuclear incidents occurring during the term of this agreement.

6. The obligations of the Commission under this and all other agreements and contracts to which the Commission is a party shall not, with respect to any nuclear incident, in the aggregate exceed whichever of the following is the lowest; (a) $500,000,000; (b) $560,000,000 less the amount of financial protection required under this agreement; or (c) with respect to a common occurrence, $560,000,000 less the sum of the amounts of financial protection established under this agreement and all other applicable agreements.

7. The obligations of the Commission under this agreement, except to the licensee for damage to property of the licensee, shall not be affected by any failure on the part of the licensee to fulfill its obligations under this agreement. Bankruptcy or insolvency of the licensee or any other person indemnified, or of the estate of the licensee or any other person indemnified shall not relieve the Commission of any of its obligations hereunder.

Article IV

1. When the Commission determines that the United States will probably be required to make indemnity payments under the provisions of this agreement, the Commission shall have the right to collaborate with the licensee and other persons indemnified in the settlement and defense of any claim (provided that no government indemnity that would otherwise be available to pay public liability claims is used for these purposes) and shall have the right (a) to require the prior approval of the Commission for the settlement or payment of any claim or action asserted against the licensee or other persons indemnified for public liability or damage to property of persons legally liable for the nuclear incident which claim or action the licensee or the Commission may be required to indemnify under this agreement; and (b) to appear through the Attorney General of the United States on behalf of the licensee or other person indemnified, take charge of such action and settle or defend any such action. If the settlement or defense of any such action or claim is undertaken by the Commission, the licensee shall furnish all reasonable assistance in effecting a settlement or asserting defense.

2. Neither this agreement nor any interest therein nor claim thereunder may be assigned or transferred without the approval of the Commission.

Article V

The parties agree that they will enter into appropriate amendments of this agreement to the extent that such amendments are required pursuant to the Atomic Energy Act of 1954, as amended, or licenses, regulations or orders of the Commission.

Article VI

The licensee agrees to pay the Commission such fees as are established by the Commission pursuant to regulations or orders of the Commission.

Article VII

The term of this agreement shall commence as of the date and time specified in Item 5 of the Attachment and shall terminate at the time of expiration of that license specified in Item 3 of the Attachment, which is the last to expire; provided that, except as may otherwise be provided in applicable regulations or orders of the Commission, the term of this agreement shall not terminate until all the radioactive material has been removed from the location and transportation of the radioactive material from the location has ended as defined in paragraph 4(b), Article I. Termination of the term of this agreement shall not affect any obligation of the licensee or the Commission under this agreement with respect to any nuclear incident occurring during the term of this agreement.

United States Nuclear Regulatory Commission attachment

Indemnity Agreement No. ________________

Item 1—Licensee __________________________

Item 2—Amount of financial protection—

Item 3—License number or numbers______

Item 4—Location __________________________

Item 5—The indemnity agreement designated above, of which this Attachment is a part, is effective as of 12:01 a.m., on the

______________ day of ________________ 19____.

Dated at Bethesda, MD, the ____________ day of __________ 19____.

For the U.S. Nuclear Regulatory Commission. For By

[42 FR 53, Jan. 3, 1977, as amended at 42 FR 20142, Apr. 18, 1977; 42 FR 23501, May 9, 1977; 44 FR 20633, Apr. 6, 1979; 44 FR 24045, Apr. 24, 1979; 45 FR 37410, June 3, 1980; 49 FR 11152, Mar. 26, 1984; 54 FR 24161, June 6, 1989]

§ 140.109 Appendix I.

Nuclear Energy Liability Insurance Association master policy no. ____ Nuclear Energy Liability Insurance (Secondary Financial Protection)

Named Insured: Each person or organization designated in Item 1 of a certificate.

Policy Period: Beginning on the first day of August, 1977, and continuing to the effective date and time of the cancellation or other termination of this policy, eastern standard time.

Limits of Liability: The amount of retrospective premium actually received by the companies plus the amount of the companies' contingent liability, if any, pursuant to Conditions 2, 3, and 4.

Date of Issue Authorized Representative

In consideration of the payment of the annual premium, in reliance upon the statements in the certificates and subject to the limits of liability, conditions and other terms of this Master Policy, the undersigned members of Nuclear Energy Liability Insurance Association (hereinafter called the companies), each for itself, severally and not jointly, and in the respective proportions herein set forth, and the insureds named in the certificates, agree as follows:

Insuring Agreements i. nuclear energy liability insurance (Secondary Financial Protection)

To pay on behalf of or to the insured or to the insured's workers' compensation carrier all sums payable as excess losses to which this Master Policy applies.

ii. definitions

Bodily injury means bodily injury, sickness or disease, including death resulting therefrom, sustained by any person.

Certificate means a Certificate of Insurance, including Declarations and Bond for Payment of Retrospective Premiums, issued to be a part of this Master Policy.

Common nuclear occurrence means any occurrence or series of occurrences causing bodily injury or property damage arising out of the radioactive, toxic, explosive, or other hazardous properties of nuclear material

(a) Discharged or dispersed from a nuclear reactor described in Item 3 of a certificate over a period of days, weeks, months, or longer, or

(b) Discharged or dispersed from a nuclear reactor described in Item 3 of a certificate over a period of days, weeks, months or longer and also arising out of such properties of nuclear material so discharged or dispersed from one or more other nuclear reactors described in Item 3 of other certificates, or

(c) In the course of transportation for which protection is afforded (or would be afforded but for exhaustion of its limit of liability) under the primary financial protection described in Item 4 of a certificate and also arising out of such properties of nuclear material in the course of transportation for which protection is afforded (or would be afforded but for exhaustion of its limit of liability) under the primary financial protection described in Item 4 of one or more other certificates.

Damages and claim expenses includes sums estimated by the companies to be payable under this policy and payments made by the companies under this Master Policy:

(a) In settlement of claims and in satisfaction of judgments against the insureds for damages because of bodily injury or property damage;

(b) For (1) costs taxed against an insured in any suit against the insured seeking damages payable under the terms of this Master Policy and interest on any judgment therein, (2) premiums on appeal bonds and bonds to release attachments in any such suit and (3) reasonable expenses, other than loss of earnings, incurred by the insured at the companies' request;

(c) For expenses incurred in the investigation, negotiation, settlement and defense of any claim or suit including, but not limited to, the cost of such services by salaried employees of the companies, fees and expenses of independent adjusters, attorneys' fees and disbursements, expenses for expert testimony, inspection and appraisal of property, examination, X-ray or autopsy or medical expenses of any kind;

(d) For expenses incurred by the companies in investigating a nuclear incident or in minimizing its effects;

(e) For all other expenses of the companies in fulfilling their obligations under this Master Policy, provided that such expenses are reasonable and necessary.

Excess losses means all damages and claim expenses

(a) Because of bodily injury or property damage to which a certificate applies, and

(b) Which are excess of all sums paid or payable as estimated by the companies under all applicable primary financial protection.

Extraordinary nuclear occurrence has the meaning given it in the Atomic Energy Act of 1954, or in any law amendatory thereof.

Insured means any person or organization identified in Item 1 or 2 of a certificate.

Nuclear incident means

(a) An extraordinary nuclear occurrence, or

(b) A common nuclear occurrence, or if neither of these,

(c) An occurrence or series of occurrences, including continuous or repeated exposure to substantially the same general conditions, causing bodily injury or property damage arising out of the radioactive, toxic, explosive, or other hazardous properties of nuclear material.

Nuclear material means source material, special nuclear material or byproduct material.

Primary financial protection means the insurance policies or other contracts identified in Item 4 of a certificate and includes any amendment thereto which is consented to by the companies pursuant to Condition 6 of this Master Policy.

Property damage means physical injury to or destruction or radioactive contamination of property, and loss of use of property so injured, destroyed or contaminated, and loss of use of property while evacuated or withdrawn from use because possibly so contaminated or because of imminent danger of such contamination.

Source material, special nuclear material, and byproduct material have the meanings given them in the Atomic Energy Act of 1954, or in any law amendatory thereof.

iii. application of policy

Insurance is provided by this Master Policy only through a certificate. No insurance is afforded with respect to bodily injury or property damage caused prior to August 1, 1977 by a nuclear incident.

Conditions 1. annual premium

The named insureds designated in a certificate shall pay to the companies the annual premium for each calendar year or part thereof.

Such annual premium shall be determined by the companies and stated in a written notice mailed to the first named insured shown in Item 1 of a certificate, and shall be due and payable as stated in such notice.

2. retrospective premium

The named insureds designated in a certificate shall pay to the companies retrospective premium in the event of excess losses due to bodily injury or property damage caused during their certificate period by a nuclear incident arising out of or in connection with a nuclear reactor described in Item 3 of the certificate or in Item 3 of any other certificate. The amount of retrospective premium-due under each certificate shall be determined by multiplying such excess losses by the ratio of the maximum retrospective premium payable with respect to the nuclear incident under the certificate to the total of the maximum retrospective premiums payable with respect to the nuclear incident under all such certificates.

If any portion of the bodily injury or property damage to which this Master Policy applies is caused during any portion of a certificate period by a nuclear incident, the retrospective premium the named insureds designated in such certificate are obligated to pay shall be determined as if all bodily injury or property damage to which this Master Policy applies caused by the nuclear incident had been caused during the certificate period of such certificate.

The maximum retrospective premium that the named insureds designated in a certificate shall pay to the companies for all excess losses arising out of any one nuclear incident is the amount stated in Item 7 of their certificate.

In the event of two more nuclear incidents, the maximum amount of retrospective premium that shall be due from and payable by the named insureds in one calendar year shall not exceed twice the amount stated in Item 7 of their certificate. Any amount in excess thereof shall be paid in subsequent calendar years as billed by the companies.

In addition, an allowance for applicable premium taxes shall be determined by the companies and paid to them by the named insureds at the time retrospective premiums are due and payable.

After a nuclear incident resulting in excess losses, the companies shall mail to the first named insured designated in Item 1 of a certificate written notice of the retrospective premium and allowance for premium taxes then due under such certificate. Such notice shall also constitute notice to all other named insureds designated in such certificate. The named insureds shall pay directly to the Nuclear Energy Liability Insurance Association the retrospective premium and allowance for premium taxes stated in the notice. The notice shall specify a date no earlier than 60 days after mailing by which time payment is to be received by the Nuclear Energy Liability Insurance Association.

The companies shall at least annually review their estimate of excess losses arising out of the nuclear incident and shall adjust the retrospective premium and allowance for premium taxes accordingly. If the amount due from the named insureds is increased, written notice shall be mailed to the first named insured in accordance with the foregoing paragraph; if deceased the companies shall return the excess to the first named insured.

The obligation of the named insureds to pay retrospective premium and the allowance for premium taxes for excess losses arising out of a nuclear incident shall continue until the named insureds have paid the maximum retrospective premium stated in Item 7 of their certificate plus allowance for premium taxes.

The companies shall send to the Nuclear Regulatory Commission summaries of their estimates of excess losses arising out of the nuclear incident and their computations of retrospective premium and the allowance for premium taxes due.

All retrospective premium (but not the allowance for premium taxes) received by the companies is to be held by the companies separate from the companies' other assets and is to be used by the companies only for the purpose of paying excess losses. Any investment income received by the companies from such retrospective premium shall accrue to the benefit of the named insureds. This paragraph shall not apply to any retrospective premium received by the companies as reimbursement for any funds expended pursuant to Condition 4.

No commission will be paid with respect to retrospective premium and allowance for premium taxes.

3. limit of liability

Regardless of the number of

(a) Persons or organizations who are insureds under this Master Policy, or

(b) Claims made and suits brought against any and all insureds, or

(c) Policies or contracts of primary financial protection or certificates which apply to the nuclear incident, or

(d) Years this Master Policy and any certificate shall continue in force,

The total liability of the companies under this Master Policy for all excess losses arising out of any nuclear incident shall not exceed the amount of retrospective premium actually received by the companies pursuant to Condition 2 with respect to such nuclear incident plus the companies' contingent liability, if any, as determined by Condition 4. Reimbursement of the companies for funds expended pursuant to Condition 4 shall not operate to increase the total liability of the companies. 4. contingent liability of the companies

The companies have a contingent liability under this Master Policy for payment of excess losses but only if, and to the extent that, the retrospective premium due under one or more certificates is not paid. In the event of any such failure to pay retrospective premiums, the companies' obligations under this Condition 4 are limited as follows:

Regardless of the number of nuclear incidents which cause bodily injury or property damage to which this Master Policy applies, the number of years this Master Policy is in force, the number of certificates issued or in effect, or the number of annual premiums paid or payable.

(a) The total contingent liability of the companies for all excess losses arising out of two or more nuclear incidents shall not exceed $46,500,000;

(b) Subject to the above provision (a), the total contingent liability of the companies for all excess losses arising out of any one nuclear incident shall not exceed $23,250,000;

(c) Subject to the above provisions (a) and (b), the maximum amount to be paid by the companies in any one calendar year because of contingent liability for excess losses shall not exceed $23,250,000.

If a named insured designated in a certificate shall become insolvent or be adjudged bankrupt, the companies' obligation under this Condition 4 shall not apply to the failure of any named insured designated in such certificate to pay retrospective premium with respect to excess losses because of bodily injury or property damage caused after the date of such insolvency or bankruptcy.

5. investigation, defense or settlement of claims or suits

Subject to the provisions of any written agreement between the companies and the Nuclear Regulatory Commission, the companies shall defend any claim or suit alleging bodily injury or property damage caused by a nuclear incident and seeking damages which are payable under this Master Policy, and may make such investigation and settlement of any claim or suit as they deem expedient. In no event shall the companies be obligated to pay any claim or judgment or to defend any claim or suit after the companies have paid the amount of retrospective premium actually received for excess losses arising out of the nuclear incident plus the amount of their contingent liability, if any.

6. primary financial protection

Regardless of the number of policies or contracts of primary financial protection applicable to a nuclear incident, the limit of liability of all such policies or contracts shall be deemed to be exhausted when the sums paid under all such policies or contracts are equal to the lesser of (1) the sum of the limits of liability available under all such primary financial protection or (2) one hundred forty million dollars.

The named insured designated in a certificate shall maintain in full effect during the currency of such certificate the primary financial protection described therein, except for any reduction of the limit of liability of such primary financial protection solely as the result of sums paid thereunder. Failure of the named insureds to comply with the foregoing shall not invalidate this Master Policy, but in the event of such failure the companies shall be liable only to the extent that they would have been liable and the named insureds complied therewith.

In the event that the limit of liability of the primary financial protection is reduced, such names insureds shall immediately inform the companies thereof and make all reasonable efforts to reinstate such limit.

Upon the companies' request the named insureds shall provide the companies with a certified copy of any policy or other contract of primary financial protection. No amendment of the primary financial protection shall increase, extend or broaden the insurance provided by this Master Policy unless the companies agree to the amendment by an endorsement issued to form a part of this Master Policy.

7. interest to be paid by named insured on retrospective premium and allowance for premium taxes in default

If retrospective premium or allowance for premium taxes is not paid when due by the named insureds designated in Item 1 of a certificate, such named insureds shall be obligated to pay, in addition to the amount in default, interest thereon during the period of default. Such interest shall be computed at an annual rate equal to the sum of (a) three percent plus (b) a rate of interest equal to Moody's Average Public Utility Bond Yield described in the issue of Moody's Bond Survey current on the date that the retrospective premium and allowance for premium taxes were due. The annual rate of interest shall be adjusted monthly during the period of default to reflect any revisions of Moody's Average Public Utility Bond Yield described in the issue of Moody's Bond Survey current on the first business day of each such month.

The interest so received shall be used to pay to the companies interest at the annual rate described above for any funds the companies have paid pursuant to Condition 4. Any balance remaining shall accrue to the benefit of named insureds not in default as if it were investment income on retrospective premium.

8. notice of nuclear incident, claim or suit

In the event of bodily injury or property damage to which this Master Policy applies or of a nuclear incident which may give rise to claims therefor, written notice containing particulars sufficient to identify the insured and also reasonably obtainable information with respect to the time, place and circumstances thereof, and the names and addresses of the injured and of available witnesses, shall be given by or for the insured to Nuclear Energy Liability Insurance Association or the companies as soon as practicable. If claim is made or suit is brought against the insured, the insured shall immediately forward to Nuclear Energy Liability Insurance Association or the companies every demand, notice, summons or other process received by or on behalf of the insured.

9. assistance and cooperation of the insured

The insured shall cooperate with the companies and, upon the companies' request, attend hearings and trials and assist in making settlements, in securing and giving evidence, in obtaining the attendance of witnesses and in the conduct of any legal proceedings in connection with the subject matter of this insurance. The insured shall not, except at the insured's own cost, make any payment, assume any obligation or incur any expense.

10. action against companies

No action shall lie against the companies or any of them unless, as a condition precedent thereto, the insured shall have fully complied with all the terms of this Master Policy, nor until the amount of the insured's obligation to pay shall have been finally determined either by judgment against the insured after actual trial or by written agreement of the insured, the claimant and the companies.

Any person or organization or the legal representative thereof who has secured such judgment or written agreement shall thereafter be entitled to recover under this Master Policy to the extent of the insurance afforded by this Master Policy. No person or organization shall have any right under this Master Policy to join the companies or any of them as parties to any action against the insured to determine the insured's liability, nor shall the companies or any of them be impleaded by the insured or the insured's legal representative. Except as provided in Condition 4, bankruptcy or insolvency of the insured or of the insured's estate shall not relieve the companies of any of their obligations hereunder.

11. subrogation

In the event of any payment under this Master Policy, the companies may participate with the insured and any underlying insurer in the exercise of all the insured's rights of recovery against any person or organization liable therefor. Prior to knowledge of bodiliy injury or property damage to which this Master Policy applies or of a nuclear incident which may give rise to claims therefor, the insured may waive in writing any right of recovery against any person or organization. After such knowledge, the insured shall not waive or otherwise prejudice any such right of recovery but shall do everything necessary to secure such rights. Recoveries shall be applied first to reimburse any person or organization (including the insured) that may have paid any amount with respect to liability in excess of the limit of the companies' liability hereunder; then to reimburse the companies up to the amount paid hereunder; and lastly to reimburse anyone entitiled to claim the residue, if any. A different apportionment maybe made by agreement signed by all parties affected.

Reasonable expenses incurred in the exercise of rights of recovery shall be apportioned in the ratio of the respective losses for which recovery is sought. The companies shall, after deducting all of their expenses in securing recovery, apply the net amount of recoveries made by the companies as a credit in determining the amount of excess losses.

12. other insurance

This insurance shall be excess insurance over primary financial protection.

This insurance is concurrent with insurance afforded by a Master Policy—Nuclear Energy Liability Insurance (Secondary Financial Protection) issued to the named insured by Mutual Atomic Energy Liability Underwriters, hereinafter called concurrent insurance. The companies shall not be liable under this Master Policy for a greater proportion of excess losses than the applicable limit of liability described in Condition 3 bears to the sum of (a) such limit plus (b) the applicable limit of liability of such concurrent insurance.

If the insured has other valid and collectible insurance (other than primary financial protection or concurrent insurance) applicable to excess losses covered by this Master Policy, the insurance afforded by this Master Policy shall be primary insurance under such other insurance.

13. changes

Notice to any agent or knowledge possessed by any agent or by any other person shall not effect a waiver or a change in any part of this Master Policy or estop the companies from asserting any right under the terms of this Master Policy; nor shall the terms of this Master Policy be waived or changed, except by endorsement executed by Nuclear Energy Liability Insurance Association on behalf of the companies and issued to form a part of this Master Policy.

14. assignment

Assignment of interest by the named insured shall not bind the companies until their consent is endorsed hereon; if, however, the named insured shall die or be declared bankrupt or insolvent, this Master Policy shall cover such named insured's legal representative, receiver or trustee as an insured under this Master Policy, but only with respect to such legal representative's, receiver's or trustee's liability as such, and then only provided written notice of the legal representative's, receiver's or trustee's appointment as such is given to the companies within ten days after such appointment.

15. custodian of the policy—nuclear regulatory commission

The named insureds have designated the Nuclear Regulatory Commission as the custodian of this Master Policy and any endorsements thereto.

16. cancellation

The first named insured designated in Item 1 of a certificate may cancel such certificate by mailing to the companies and the Nuclear Regulatory Commission written notice stating when, not less than thirty days thereafter, such cancellation shall be effective.

The companies may cancel any certificate by mailing to the first named insured designated in Item 1 of such certificate written notice stating when, not less than ninety days thereafter, such cancellation shall be effective; provided that in the event of non-payment of any annual premium, retrospective premium or allowance for premium taxes due under a certificate, such certificate may be canceled by the companies by mailing to the first named insured designated therein written notice stating when, not less than thirty days thereafter, such cancellation shall be effective.

The mailing of notice as aforesaid shall be sufficient proof of notice. The effective date and time of cancellation stated in the notice shall become the end of the certificate period. Delivery of such written notice, either by the first named insured designated in Item 1 of a certificate or by the companies, shall be equivalent to mailing.

A copy of the companies' cancellation notice shall be mailed to the Nuclear Regulatory Commission, but mailing such copy is not a condition of cancellation.

If a certificate is canceled, the earned portion of the annual premium shall be computed pro-rata. Adjustment of the annual premium, if any, may be made either at the time cancellation is effective or as soon as practicable after cancellation becomes effective, but payment or tender of unearned premium is not a condition of cancellation.

Cancellation or termination of any certificate shall not terminate the obligation of a named insured to pay retrospective premium and the allowance for premium taxes as provided in such named insured's certificate and Condition 2 of this Master Policy.

This Master Policy shall terminate automatically on the effective date and time of cancellation or termination of the last certificate in effect.

17. company representation

(a) Any notice, sworn statement or proof of loss which may be required by the provisions of this Master Policy may be given to any one of the companies, and such notice, statement or proof of loss so given shall be valid and binding as to all companies.

(b) In any action or suit against the companies, service of process may be made on any one of them and such service shall be deemed valid and binding service on all companies.

(c) Nuclear Energy Liability Insurance Association is the agent of the companies with respect to all matters pertaining to this insurance. All notices or other communications required by this Master Policy to be given to the companies may be given to such agent, at its office at The Exchange, Suite 245, 270 Farmington Avenue, Farmington, Connecticut—06032 with the same force and effect as if given directly to the companies. Any requests, demands or agreements made by such agent shall be deemed to have been made directly by the companies.

18. authorization of first named insured

Except with respect to compliance with the obligations imposed on the insured by Conditions 8, 9, 10 and 11 of this Master Policy, the first named insured designated in Item 1 of a certificate is authorized to act for every other person and organization insured under such certificate in all matters pertaining to this insurance.

19. changes in subscribing companies and in their proportionate liability

The members of Nuclear Energy Liability Insurance Association subscribing this Master Policy, and the proportionate liability of each, may change from time to time.

Each company subscribing this Master Policy upon its issuance shall be liable only for its stated proportion of any obligation assumed or expense incurred under this Master Policy because of bodily injury or property damage caused during the period from the effective date of this Master Policy to the close of December 31 next following. For each subsequent calendar year, beginning January 1 next following the effective date of this Master Policy, the subscribing companies and the proportionate liability of each such company shall be stated in an endorsement issued to form a part of this Master Policy, duly executed by the President of Nuclear Energy Liability Insurance Association on behalf of each such company, and mailed or delivered to the Nuclear Regulatory Commission.

20. declarations

By acceptance of this Master Policy, the named insureds designated in a certificate agree that the statements in such certificate are their agreements and representations, that this Master Policy and such certificate are issued in reliance upon the truth of such representations and that this Master Policy and such certificate embody all agreements between such named insureds and the companies or any of their agents relating to this insurance.

In witness whereof each of the subscribing companies has caused this Master Policy to be executed on its behalf by the Nuclear Energy Liability Insurance Association and duly countersigned on the first page by an authorized representative.

For the Subscribing Companies of NUCLEAR ENERGY LIABILITY INSURANCE ASSOCIATION

By: Burt C. Proom, President. Nuclear Energy Liability Insurance Association Certificate No. Forming Part of Master Policy No. certificate of insurance declarations and bond for payment of retrospective premiums Certificate of Insurance

This is to certify that the persons and organizations designated in Item 1 of the Declarations are named insureds under the Master Policy—Nuclear Energy Liability Insurance (Secondary Financial Protection), herein called the Master Policy, issued by Nuclear Energy Liability Insurance Association.

Such insurance as is provided by the Master Policy applies, through this certificate, only:

(a) to the insureds identified in Items 1 and 2 of the Declarations,

(b) for the certificate period stated in Item 6 of the Declarations,

(c) to bodily injury or property damage

(1) with respect to which the primary financial protection described in Item 4 of the Declarations would apply but for exhaustion of its limit of liability as described in Condition 6 of the Master Policy, and

(2) which is caused during the certificate period stated in Item 6 of the Declarations by a nuclear incident arising out of or in connection with the nuclear reactor described in Item 3 of the Declarations, and

(3) which is discovered and for which written claim is made against the injured not later than ten years after the end of the certificate period stated in Item 6 of the Declarations. However, with respect to bodily injury or property damage caused by an extraordinary nuclear occurrence this subparagraph (3) shall not operate to bar coverage for bodily injury or property damage which is discovered and for which written claim is made against the insured not later than twenty years after the date of the extraordinary nuclear occurrence.

declarations

Item 1. Named insureds and addresses:

(a)

(b)

Item 2. Additional insureds:

Any other person or organization who would be insured under the primary financial protection identified in Item 4 of the Declarations but for exhaustion of the limit of liability of such primary financial protection.

Item 3. Description and location of nuclear reactor:

Item 4. (a) Identification of primary financial protection applicable to the nuclear reactor and limit(s) of liability thereof:

Nuclear Energy Liability Insurance Association's Policy NF- $108,500,000 Mutual Atomic Energy Liability Underwriters' Policy MF- $31,500,000

(b) The following endorsements, attached to the primary financial protection policies listed in Item 4(a) also apply to the insurance afforded by the Master Policy through this certificate as though they were attached hereto:

(1) Waiver of Defense Endorsement (Extraordinary Nuclear Occurrence) and

(2) Supplementary Endorsement—Waiver of Defenses—Reactor Construction at the Facility,

(c) The limits of liability provided under the primary financial protection specified in Item 4(a) above are not shared with any other reactor except as follows:

Item 5. Limits of Liability: The amount of retrospective premium actually received by the companies plus the amount of the companies' contingent liability, if any, pursuant to Conditions 2, 3, and 4 of the Master Policy.

Item 6. Certificate Period: Beginning at 12:01 a.m. on ____________ and continuing to the effective date and time of cancellation or termination of the Master Policy or this certificate, whichever first occurs, eastern standard time.

Item 7. Maximum retrospective premium (exclusive of allowance for premium taxes) payable pursuant to Condition 2 of the Master Policy with respect to each nuclear incident: $3,875,000.

Item 8. Premium payable pursuant to Condition 1 of the Master Policy for the period from ____________ through December 31 following: $______.

Bond for Payment of Retrospective Premiums

Know All Men By These Presents, that the undersigned do hereby acknowledge that they are named insureds under the Master Policy described in the above Certificate of Insurance and Declarations. The named insureds do hereby convenant with and are held and are firmly bound to the members of Nuclear Energy Liability Insurance Association subscribing the Master Policy (hereinafter called the companies) to pay the companies all retrospective premiums and allowances for premium taxes which shall become due and payable in accordance with the Master Policy, as it may be changed from time to time, with interest on such premiums and allowances for taxes to be computed at the rate provided in the Master Policy from the date payment thereof is specified to be due the companies in written notice to the first named insured as provided in Condition 2 of the Master Policy until paid;

And it is hereby expressly agreed that copies of written notices of retrospective premiums and allowances for premium taxes due and payable or other evidence of such amounts due and payable sworn to by a duly authorized representative of the companies shall be prima facie evidence of the fact and extent of the liability of the named insureds for such amounts;

And it is further expressly agreed that the named insureds will indemnify the companies against any and all liability, losses and expenses of whatsoever kind or nature (including but not limited to interest, court cost, and counsel fees) which the companies may sustain or incur (1) by reason of the failure of the named insureds to comply with the convenants and provisions of this Bond and (2) in enforcing any of the convenants or provisions of this Bond, or any provisions of the Master Policy relating to such convenants or provisions;

For the purpose of recording this agreement, a photocopy acknowledged before a Notary Public to be a true copy hereof shall be regarded as an original.

The preceding Certificate of Insurance, Declarations and Bond form a part of the Master Policy. Cancellation or termination of the Master Policy or the Certificate of Insurance shall not affect the named insured's obligations under the policy or the Bond to pay the retrospective premiums and allowances for premium taxes, as provided in this Certificate and Condition 2 of the Master Policy.

In witness whereof, the named insureds have caused the Declaration and the Bond for Payment of Retrospective Premiums to be signed and sealed by a duly authorized officer, to be effective ____________ eastern standard time.

Attest or Witness Named Insureds: By (Seal) (Signature of Officer) (type or print Name & Title of Officer) Date:

In witness whereof, the companies subscribing the Master Policy have caused the Certificate of Insurance and the Declarations to be signed on their behalf by the President of Nuclear Energy Liability Insurance Association to be effective __________ eastern standard time, and countersigned below by a duly authorized representative.

For the Subscribing Companies of Nuclear Energy Liability Insurance Association.

By: President Countersigned by (Authorized Representative)

[49 FR 11153, Mar. 26, 1984]

§ 150.1 Purpose.

The regulations in this part provide certain exemptions to persons in Agreement States from the licensing requirements contained in chapters 6, 7, and 8 of the Act and from the regulations of the Commission imposing requirements upon persons who receive, possess, use or transfer byproduct material, source, or special nuclear material in quantities not sufficient to form a critical mass; and to define activities in Agreement States and in offshore waters over which the regulatory authority of the Commission continues. The provisions of the Act, and regulations of the Commission apply to all persons in Agreement States and in offshore waters engaging in activities over which the regulatory authority of the Commission continues.

[46 FR 44151, Sept. 3, 1981]

§ 150.2 Scope.

The regulations in this part apply to all States that have entered into agreements with the Commission or the Atomic Energy Commission pursuant to subsection 274b of the Act. This part also gives notice to all persons who knowingly provide to any licensee, applicant for a license or certificate or quality assurance program approval, holder of a certificate or quality assurance program approval, contractor, or subcontractor, any components, equipment, materials, or other goods or services that relate to a licensee's, certificate holder's, quality assurance program approval holder's or applicant's activities subject to this part, that they may be individually subject to NRC enforcement action for violation of §§ 30.10, 40.10, 61.9b, 70.10, and 71.8.

[63 FR 1901, Jan. 13, 1998, as amended at 80 FR 63419, Oct. 20, 2015]

§ 150.3 Definitions.

As used in this part:

Act means the Atomic Energy Act of 1954 (68 Stat. 919) including any amendments thereto;

Agreement State means any State with which the Commission or the Atomic Energy Commission has entered into an effective agreement under subsection 274b of the Act. Nonagreement State means any other State.

Byproduct material means—

(1) Any radioactive material (except special nuclear material) yielded in, or made radioactive by, exposure to the radiation incident to the process of producing or using special nuclear material;

(2) The tailings or wastes produced by the extraction or concentration of uranium or thorium from ore processed primarily for its source material content, including discrete surface wastes resulting from uranium solution extraction processes. Underground ore bodies depleted by these solution extraction operations do not constitute “byproduct material” within this definition;

(3)(i) Any discrete source of radium-226 that is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity; or

(ii) Any material that—

(A) Has been made radioactive by use of a particle accelerator; and

(B) Is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity; and

(4) Any discrete source of naturally occurring radioactive material, other than source material, that—

(i) The Commission, in consultation with the Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of Homeland Security, and the head of any other appropriate Federal agency, determines would pose a threat similar to the threat posed by a discrete source of radium-226 to the public health and safety or the common defense and security; and

(ii) Before, on, or after August 8, 2005, is extracted or converted after extraction for use in a commercial, medical, or research activity.

Commission means the Nuclear Regulatory Commission or its duly authorized representatives;

Discrete source means a radionuclide that has been processed so that its concentration within a material has been purposely increased for use for commercial, medical, or research activities.

Foreign obligations means the commitments entered into by the U.S. Government under Atomic Energy Act (AEA) section 123 agreements for cooperation in the peaceful uses of atomic energy. Imports and exports of material or equipment pursuant to such agreements are subject to these commitments, which in some cases involve an exchange of information on imports, exports, retransfers with foreign governments, peaceful end-use assurances, and other conditions placed on the transfer of the material or equipment. The U.S. Government informs the licensee of obligations attached to material.

Government agency means any executive department, commission, independent establishment, corporation, wholly or partly owned by the United States of America which is an instrumentality of the United States, or any board, bureau, division, service, office, officer, authority, administration, or other establishment in the executive branch of the Government.

Offshore waters means that area of land and water, beyond Agreement States' Submerged Lands Act jurisdiction, on or above the U.S. Outer Continental Shelf.

Person means: (1) Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, agency, and State or any political subdivision of any political entity within a State, and any legal successor, representative, agent, or agency of the foregoing other than Government agencies;

Production facility means:

(1) Any equipment or device determined by rule of the Commission to be capable of the production of special nuclear material in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public, including a uranium enrichment facility; or

(2) Any important component part especially designed for such equipment or device as determined by the Commission.

Reconciliation means the process of evaluating and comparing licensee reports required under this part to the projected material balances generated by the Nuclear Materials Management and Safeguards System. This process is considered complete when the licensee resolves any differences between the reported and projected balances, including those listed for foreign obligated materials.

Source material means:

(1) Uranium, thorium, or any other material which is determined by the Commission pursuant to the provisions of section 61 of the Act to be source material; or

(2) Ores containing one or more of the foregoing materials, in such concentration as the Commission may by regulation determine from time to time;

Special nuclear material means:

(1) Plutonium, uranium 233, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Commission, pursuant to the provisions of section 51 of the Act, determines to be special nuclear material, but does not include source material; or

(2) Any material artificially enriched by any of the foregoing but does not include source material;

State means any State, the District of Columbia, Puerto Rico, and any territory or possession of the United States; and

Utilization facility means:

(1) Any equipment or device, except an atomic weapon, determined by rule of the Commission to be capable of making use of special nuclear material in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public, or peculiarly adapted for making use of atomic energy in such quantity as to be of significance to the common defense and security, or in such manner as to affect the health and safety of the public; or

(2) Any important component part especially designed for such equipment or device as determined by the Commission.

Uranium enrichment facility means:

(1) Any facility used for separating the isotopes of uranium or enriching uranium in the isotope 235, except laboratory scale facilities designed or used for experimental or analytical purposes only; or

(2) Any equipment or device, or important component part especially designed for such equipment or device, capable of separating the isotopes of uranium or enriching uranium in the isotope 235.

[27 FR 1352, Feb. 14, 1962, as amended at 31 FR 15145, Dec. 2, 1966; 40 FR 8794, Mar. 3, 1975; 44 FR 55327, Sept. 26, 1979; 45 FR 18906, Mar. 24, 1980; 46 FR 44152, Sept. 3, 1981; 57 FR 18394, Apr. 30, 1992; 68 FR 10365, Mar. 5, 2003; 72 FR 55934, Oct. 1, 2007; 73 FR 32464, June 9, 2008]

§ 150.4 Communications.

Except where otherwise specified in this part, all communications and reports concerning the regulations in this part should be sent by mail addressed: ATTN: Document Control Desk, Director, Office of Nuclear Material Safety and Safeguards, and sent either by mail to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of Information Services, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information.

[73 FR 5727, Jan. 31, 2008, as amended at 74 FR 62686, Dec. 1, 2009; 79 FR 75742, Dec. 19, 2014; 80 FR 74982, Dec. 1, 2015]

§ 150.5 Interpretations.

Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by an officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized to be binding upon the Commission. This section shall cease to have effect on January 8, 2027, unless the NRC determines that the cessation deadline should be extended to a date not more than 5 years in the future after offering the public an opportunity to provide input on the costs and benefits of this section and considering that input. The NRC will publish a document in the Federal Register announcing its determination and revising or removing this section accordingly.

[27 FR 1352, Feb. 14, 1962, as amended at 90 FR 55634, Dec. 3, 2025]

§ 150.7 Persons in offshore waters not exempt.

Persons in offshore waters are not exempt from the Commission's licensing and regulatory requirements with respect to byproduct, source, and special nuclear materials.

[46 FR 44152, Sept. 3, 1981]

§ 150.8 Information collection requirements: OMB approval.

(a) The Nuclear Regulatory Commission has submitted the information collection requirements contained in this part to the Office of Management and Budget (OMB) for approval as required by the Paperwork Reduction Act (44 U.S.C. 3501 et seq.). The NRC may not conduct or sponsor, and a person is not required to respond to, a collection of information unless it displays a currently valid OMB control number. OMB has approved the information collection requirements contained in this part under control number 3150-0032.

(b) The approved information collection requirements contained in this part appear in §§ 150.16, 150.17, 150.17a, 150.19, 150.20, and 150.31.

(c) This part contains information collection requirements in addition to those approved under the control number specified in paragraph (a) of this section. These information collection requirements and the control numbers under which they are approved are as follows:

(1) In § 150.16, DOE/NRC FORM 741 and its computer-readable format are approved under control number 3150-0003.

(2) In § 150.17, DOE/NRC Form 742 and its computer-readable format are approved under control number 3150-0004, and DOE/NRC Form 742C and its computer-readable format are approved under control number 3150-0058.

(3) In § 150.17a, Form N-71 and associated forms are approved under OMB control number 3150-0056 and DOC/NRC Forms AP-1 or AP-A and associated forms are approved under OMB control number 0694-0135.

(4) In § 150.20, NRC Form 241 is approved under control number 3150-0013.

[49 FR 19629, May 9, 1984, as amended at 62 FR 52190, Oct. 6, 1997; 73 FR 32464, June 9, 2008; 73 FR 78615, Dec. 23, 2008; 74 FR 1872, Jan. 14, 2009]

§ 150.10 Persons exempt.

Except as provided in §§ 150.15, 150.16, 150.17, 150.17a, and 150.19, any person in an Agreement State who manufactures, produces, receives, possesses, uses, or transfers byproduct material, source material, or special nuclear material in quantities not sufficient to form a critical mass is exempt from the requirements for a license contained in Chapters 6, 7, and 8 of the Act, regulations of the Commission imposing licensing requirements upon persons who manufacture, produce, receive, possess, use, or transfer such materials, and from regulations of the Commission applicable to licensees. The exemptions in this section do not apply to agencies of the Federal government as defined in § 150.3.

[37 FR 9208, May 6, 1972, as amended at 45 FR 50718, July 31, 1980; 75 FR 73946, Nov. 30, 2010]

§ 150.11 Critical mass.

(a) For the purposes of this part, special nuclear material in quantities not sufficient to form a critical mass means uranium enriched in the isotope U-235 in quantities not exceeding 350 grams of contained U-235; uranium-233 in quantities not exceeding 200 grams; plutonium in quantities not exceeding 200 grams; or any combination of them in accordance with the following formula: For each kind of special nuclear material, determine the ratio between the quantity of that special nuclear material and the quantity specified above for the same kind of special nuclear material. The sum of such ratios for all kinds of special nuclear materials in combination shall not exceed unity. For example, the following quantities in combination would not exceed the limitation and are within the formula, as follows:

(175 (grams contained U-235 / 350) + (50 grams U-233) / 200) + (50 grams Pu / 200) = 1

(b) To determine whether the exemption granted in § 150.10 applies to the receipt, possession or use of special nuclear material at any particular plant or other authorized location of use, a person shall include in the quantity computed according to paragraph (a) of this section the total quantity of special nuclear material which he is authorized to receive, possess or use at the plant or other location of use at any one time.

[27 FR 1352, Feb. 14, 1962, as amended at 30 FR 12069, Sept. 22, 1965]

§ 150.14 Commission regulatory authority for physical protection.

Persons in Agreement States possessing, using or transporting special nuclear material of low strategic significance in quantities greater than 15 grams of plutonium or uranium-233 or uranium-235 (enriched to 20 percent or more in the U-235 isotope) or any combination greater than 15 grams when computed by the equation grams = grams uranium-235 + grams plutonium + grams uranium-233 shall meet the physical protection requirements of § 73.67 of 10 CFR part 73.

[44 FR 43285, July 24, 1979, as amended at 44 FR 68199, Nov. 28, 1979]

§ 150.15 Persons not exempt.

(a) Persons in agreement States are not exempt from the Commission's licensing and regulatory requirements with respect to the following activities:

(1) The construction and operation of any production or utilization facility. As used in this subparagraph, operation of a facility includes, but is not limited to (i) the storage and handling of radioactive wastes at the facility site by the person licensed to operate the facility, and (ii) the discharge of radioactive effluents from the facility site.

(2) The export from or import into the United States of byproduct, source, or special nuclear material, or of any production or utilization facility.

(3) The disposal into the ocean or sea of byproduct, source, or special nuclear waste materials, as defined in regulations or orders of the Commission. For purposes of this part, ocean or sea means any part of the territorial waters of the United States and any part of the international waters.

(4) The transfer, storage or disposal of radioactive waste material resulting from the separation in a production facility of special nuclear material from irradiated nuclear reactor fuel. This subparagraph does not apply to the transfer, storage or disposal of contaminated equipment.

(5) The disposal of such other byproduct, source, or special nuclear material as the Commission determines by regulation or order should, because of the hazards or potential hazards thereof, not be so disposed of without a license from the Commission.

(6) The transfer of possession or control by the manufacturer, processor, or producer of any equipment, device, commodity, or other product containing source material or byproduct material whose subsequent possession, use, transfer, and disposal by all other persons are exempted from licensing and regulatory requirements of the Commission under Parts 30 and 40 of this chapter.

(7) The storage of:

(i) Spent fuel in an independent spent fuel storage installation (ISFSI) licensed under part 72 of this chapter,

(ii) Spent fuel and high-level radioactive waste in a monitored retrievable storage installation (MRS) licensed under part 72 of this chapter, or

(iii) Greater than Class C (GTCC) waste, as defined in part 72 of this chapter, in an ISFSI or an MRS licensed under part 72 of this chapter; the GTCC waste must originate in, or be used by, a facility licensed under part 50, part 52, or part 53 of this chapter.

(8) Greater than Class C waste, as defined in part 72 of this chapter, that originates in, or is used by, a facility licensed under part 50, part 52, or part 53 of this chapter and is licensed under part 30 and/or part 70 of this chapter.

(9) The requirements for the protection of Safeguards information in § 73.21 of this chapter and the requirements in § 73.22 or § 73.23 of this chapter, as applicable.

(b) Notwithstanding any exemptions provided in this part, the Commission may from time to time by rule, regulation, or order, require that the manufacturer, processor, or producer of any equipment, device, commodity, or other product containing source, byproduct, or special nuclear material shall not transfer possession or control of such product except pursuant to a license or an exemption from licensing issued by the Commission.

[27 FR 1352, Feb. 14, 1962, as amended at 34 FR 7369, May 7, 1969; 53 FR 31683, Aug. 19, 1988; 66 FR 51843, Oct. 11, 2001; 73 FR 63582, Oct. 24, 2008; 79 FR 58672, Sept. 30, 2014; 87 FR 68032, Nov. 14, 2022; 91 FR 15879, Mar. 30, 2026]

§ 150.15a Continued Commission authority pertaining to byproduct material.

(a) Prior to the termination of any Agreement State license for byproduct material as defined in § 150.3(c)(2) of this part, or for any activity that results in the production of such material, the Commission shall have made a determination that all applicable standards and requirements pertaining to such material have been met.

(b) After November 8, 1981, the Commission reserves the authority to establish minimum standards regarding reclamation, long term surveillance (i.e., continued site observation, monitoring and, where necessary, maintenance), and ownership of byproduct material as defined in § 150.3(c)(2) of this part and of land used as a disposal site for such material. Such reserved authority includes:

(1) Authority to establish such terms and conditions as the Commission determines necessary to assure that, prior to termination of any license for byproduct material as defined in § 150.3(c)(2) of this part, or for any activity that results in the production of such material, the licensee shall comply with decontamination, decommissioning, and reclamation standards prescribed by the Commission; and with ownership requirements for such materials and its disposal site;

(2) The authority to require that prior to termination of any license for byproduct material as defined in § 150.3(c)(2) of this part, or for any activity that results in the production of such material, that title to such byproduct material and its disposal site be transferred to the United States or the State in which such material and land is located, at the option of the State (provided such option is exercised prior to termination of the license);

(3) The authority to permit use of the surface or subsurface estates, or both, of the land transferred to the United States or a State pursuant to paragraph (b)(2) of this section in a manner consistent with the provisions of the Uranium Mill Tailings Radiation Control Act of 1978, provided that the Commission determines that such use would not endanger the public health, safety, welfare, or the environment;

(4) The authority to require, in the case of a license for any activity that produces such byproduct material (which license was in effect on November 8, 1981) transfer of land and material pursuant to paragraph (b)(2), of this section, taking into consideration the status of such material and land and interests therein, and the ability of the licensee to transfer title and custody thereof to the United States or a State.

(5) The authority to require the Secretary of the Department of Energy, other Federal agency, or State, whichever has custody of such property and materials, to undertake such monitoring, maintenance and emergency measures as are necessary to protect the public health and safety and other actions at the Commission deems necessary to comply with the standards promulgated pursuant to the Uranium Mill Tailings Radiation Control Act of 1978; and

(6) The authority to enter into arrangements as may be appropriate to assure Federal long term surveillance (i.e., continued site observation, monitoring, and where necessary, maintenance) of such disposal sites on land held in trust by the United States for any Indian Tribe or land owned by an Indian Tribe and subject to a restriction against alienation imposed by the United States.

[45 FR 65536, Oct. 3, 1980, as amended at 80 FR 74982, Dec. 1, 2015]

§ 150.16 Submission to Commission of nuclear material transaction reports.

(a)(1) Each person who transfers or receives special nuclear material in a quantity of one gram or more of contained uranium-235, uranium-233, or plutonium under an Agreement State license shall complete and submit in computer-readable format Nuclear Material Transaction Reports as specified in the instructions in NUREG/BR-0006 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees.” In addition, each person who adjusts the inventory in any manner, other than for transfers and receipts, shall submit in computer-readable format Nuclear Material Transaction Reports as specified in the instructions in NUREG/BR-0006 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees.” Each licensee who receives special nuclear material in a quantity of one gram or more of contained uranium-235, uranium-233, or plutonium from a foreign source, or who ships special nuclear material in a quantity of one gram or more of contained uranium-235, uranium-233, or plutonium to a foreign source, shall submit the licensee portion of this information as specified in the instructions in this part. The applicable foreign facility portion of the form must be completed and submitted for imports. The foreign facility portion of the form must be completed for exports only if a significant shipper-receiver difference as described in § 74.31, § 74.43, or § 74.59 of this part, as applicable, is identified. Each person who transfers the material shall submit a Nuclear Material Transaction Report in computer-readable format as specified in the instructions no later than the close of business the next working day. Each person who receives special nuclear material shall submit a Nuclear Material Transaction Report in the computer-readable format as specified in the instructions within ten (10) days after the special nuclear material is received. Copies of these instructions may be obtained either by writing to the U.S. Nuclear Regulatory Commission, Division of Fuel Management, Washington, DC 20555-0001, or by e-mail to RidsNmssFcss@nrc.gov. These prescribed computer-readable formats replace the DOE/NRC Form 741 which have been previously submitted in paper form.

(2) Except as specified in §§ 150.17(d) and 150.17a, each person who, under an Agreement State specific license transfers, receives, or adjusts the inventory in any manner, of uranium or thorium source material with foreign obligations by one kilogram or more; imports or exports one kilogram or more of uranium or thorium source material; or uses one kilogram or more of any uranium or thorium source material in enrichment services, downblending uranium that has an initial enrichment of the U 235 isotope of 10 percent or more, or in the fabrication of mixed-oxide fuels, shall complete and submit in computer-readable format Nuclear Material Transaction Reports as specified in the instructions in NUREG/BR-0006 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees.” Each person who, under an Agreement State specific license exports one kilogram or more of uranium or thorium source material shall complete in the format listed above the licensee's portion of the Nuclear Material Transaction Report unless there is indication of loss, theft, or diversion as discussed in § 40.64(c)(1) of this chapter is identified, in which case both the licensee's and the foreign facility's information shall be reported. For imports, the shipper's portion of the form must also be completed. Copies of the instructions may be obtained either by writing to the U.S. Nuclear Regulatory Commission, Division of Fuel Management, Washington, DC 20555-0001, or by e-mail to RidsNmssFcss@nrc.gov. Each licensee who transfers the material shall submit a Nuclear Material Transaction Report in computer-readable format as specified in the instructions no later than the close of business the next working day. Each licensee who receives the material shall submit a Nuclear Material Transaction Report in computer-readable format in accordance with instructions within ten (10) days after the material is received. The Commission's copy of the report must be submitted to the address specified in the instructions. These prescribed computer-readable forms replace the DOE/NRC Form 741 which have been previously submitted in paper form.

(b)(1) Each person who, pursuant to an Agreement State License, possesses 1 gram or more of contained uranium-235, uranium-233, or plutonium shall report immediately to the Regional Administrator of the appropriate NRC Regional Office listed in appendix A of part 73 of this chapter, by telephone, any theft or other unlawful diversion of special nuclear material which the licensee is licensed to possess or any incident in which an attempt has been made, or is believed to have been made, to commit a theft or unlawful diversion of special nuclear material.

(2) Within 15 days, the licensee shall follow the initial report with a written report that sets forth the details of the incident. The report must be sent by an appropriate method listed in § 150.4 to the Director, Office of Nuclear Material Safety and Safeguards, with a copy to the appropriate NRC Regional Office, shown in appendix A to part 73 of this chapter.

(3) Subsequent to the submission of the written report required by this paragraph, each licensee shall promptly inform the Regional Administrator of the appropriate NRC Regional Office by means of a written report of any substantive additional information which becomes available to the licensee concerning an attempted or apparent theft or unlawful diversion of special nuclear material.

[39 FR 39559, Nov. 8, 1974, as amended at 41 FR 16447, Apr. 19, 1976; 52 FR 31613, Aug. 21, 1987; 59 FR 35622, July 13, 1994; 68 FR 58825, Oct. 10, 2003; 73 FR 5727, Jan. 31, 2008; 73 FR 32464, June 9, 2008; 79 FR 75742, Dec. 19, 2014; 84 FR 65646, Nov. 29, 2019]

§ 150.17 Submission to Commission of nuclear material status reports.

(a) Except as specified in paragraph (d) of this section and § 150.17a, each person possessing, or who had possessed in the previous reporting period, at any one time and location, under an Agreement State license, special nuclear material in a quantity totaling one gram or more of contained uranium-235, uranium-233, or plutonium, shall complete and submit, in computer-readable format Material Balance Reports concerning special nuclear material that the licensee has received, produced, possessed, transferred, consumed, disposed of, or lost. This prescribed computer-readable report replaces the DOE/NRC Form 742 which has been previously submitted in paper form. The Physical Inventory Listing Report must be submitted with each Material Balance Report. This prescribed computer-readable report replaces the DOE/NRC Form 742C which has been previously submitted in paper form. Each licensee shall prepare and submit the reports described in this paragraph as specified in the instructions in NUREG/BR-0007 and NMMSS Report D-24 “Personal Computer Data Input for NRC Licensees.” Copies of these instructions may be obtained from the U.S. Nuclear Regulatory Commission, Division of Fuel Management, Washington, DC 20555-0001, or by e-mail to RidsNmssFcss@nrc.gov. Each person subject to this requirement shall submit a report no later than March 31 of each year. The Commission may, when good cause is shown, permit a licensee to submit Material Balance Reports and Physical Inventory Listing Reports at other times. Each licensee required to report material balance, and inventory information, as described in this part, shall resolve any discrepancies identified during the report review and reconciliation process within 30 calendar days of notification of a discrepancy identified by NRC.

(b) Except as specified in paragraph (d) of this section and § 150.17a, each person possessing, or who had possessed in the previous reporting period, at any one time and location, under an Agreement State license:

(1) One kilogram or more of uranium or thorium source material with foreign obligations, shall document holdings as of September 30 of each year and submit to the Commission within 30 days. Alternatively, these reports may be submitted with the licensee's material status reports on special nuclear material filed under part 72 or 74 of this chapter. This statement must be submitted to the address specified in the reporting instructions in NUREG/BR-0007, and include the Reporting Identification Symbol (RIS) assigned by the Commission.

(2) One kilogram or more of uranium or thorium source material in the operation of enrichment services, downblending uranium that has an initial enrichment of the U 235 isotope of 10 percent or more, or in the fabrication of mixed-oxide fuels shall complete and submit, in computer-readable format, Material Balance and Physical Inventory Listing Reports concerning source material that the licensee has received, produced, possessed, transferred, consumed, disposed, or lost. Reports must be submitted for each Reporting Identification Symbol (RIS) account including all holding accounts. Each licensee shall prepare and submit these reports as specified in the instructions in NUREG/BR-0007 and NMMSS Report D-24, “Personal Computer Data Input for NRC Licensees.” These reports must document holdings as of September 30 of each year and submitted to the Commission within 30 days. Alternatively, these reports may be submitted with the licensee's material status reports on special nuclear material filed under part 72 or 74 of this chapter. Copies of the reporting instructions may be obtained by writing to the U.S. Nuclear Regulatory Commission, Division of Fuel Management, Washington, DC 20555-0001, or by e-mail to RidsNmssFcss@nrc.gov. Each licensee required to report material balance, and inventory information, as described in this part, shall resolve any discrepancies identified during the report review and reconciliation process within 30 calendar days of the notification of a discrepancy identified by the NRC.

(c)(1) Except as specified in paragraph (d) of this section, each licensee who is authorized to possess uranium or thorium pursuant to a specific license shall notify the NRC Headquarters Operations Center by telephone, at the numbers listed in appendix A to part 73 of this chapter, of any incident in which an attempt has been made or is believed to have been made to commit a theft or unlawful diversion of more than 6.8 kilograms (kg) [15 pounds] of such material at any one time or more than 68 kg [150 pounds] of such material in any one calendar year.

(2) The licensee shall notify the NRC as soon as possible, but within 4 hours, of discovery of any incident in which an attempt has been made or is believed to have been made to commit a theft or unlawful diversion of such material.

(3) The initial notification shall be followed within a period of sixty (60) days by a written followup notification submitted in accordance with § 150.4. A copy of the written followup notification shall also be sent to the appropriate NRC Regional Office as shown in appendix A to part 73 of this chapter and to Director, Division of Security Policy, Office of Nuclear Security and Incident Response, U.S. Nuclear Regulatory Commission.

(4) Subsequent to the submission of the written followup notification required by this paragraph, the licensee shall promptly update the written followup notification, in accordance with this paragraph, with any substantive additional information, which becomes available to the licensee, concerning an attempted or apparent theft or unlawful diversion of source material.

(d) The reports described in paragraphs (a), (b), and (c) of this section are not required for:

(1) Processed ores containing less than five (5) percent of uranium or thorium, or any combination of uranium and thorium, by dry weight;

(2) Thorium contained in magnesium-thorium and tungsten-thorium alloys, if the thorium content in the alloys does not exceed 4 percent by weight;

(3) Chemical catalysts containing uranium depleted in the U-235 isotope to 0.4 percent or less, if the uranium content of the catalyst does not exceed 15 percent by weight; or

(4) Any source material contained in non-nuclear end use devices or components, including but not limited to permanently installed shielding, teletherapy, radiography, X-ray, accelerator devices, or munitions.

[35 FR 12196, July 30, 1970, as amended at 36 FR 10938, June 5, 1971; 41 FR 16448, Apr. 19, 1976; 49 FR 24708, June 15, 1984; 51 FR 9767, Mar. 21, 1986; 52 FR 31613, Aug. 21, 1987; 59 FR 35622, July 13, 1994; 60 FR 24553, May 9, 1995; 68 FR 10365, Mar. 5, 2003; 68 FR 58825, Oct. 10, 2003; 73 FR 32465, June 9, 2008; 74 FR 62686, Dec. 1, 2009; 75 FR 73946, Nov. 30, 2010; 79 FR 75742, Dec. 19, 2014; 84 FR 65646, Nov. 29, 2019]

§ 150.17a Compliance with requirements of US/IAEA Safeguards Agreement.

(a) For purposes of this section, the terms facility, location, and Eligible Facilities List have the meanings set forth in § 75.4 of this chapter.

(b) Each person who, under an Agreement State license, is authorized to possess byproduct, source, or special nuclear material is subject to the provisions of Part 75 of this chapter and shall comply with its applicable provisions. However, regarding these persons, the Commission will issue orders under section 274m of the Act instead of making license amendments; and, to the extent Part 75 of this chapter refers to license amendments and license conditions, these references shall be deemed, for purposes of this paragraph, to refer to orders under section 274m of the Act.

(c)(1) In response to a written request by the Commission, each applicant for an Agreement State license or certificate, and each recipient of an Agreement State license or certificate shall submit facility information, as described in § 75.10 of this chapter, on Form N-71 and associated forms, and site information on DOC/NRC Form AP-A and associated forms;

(2) As required by the Additional Protocol, shall submit location information described in § 75.11 of this chapter on DOC/NRC Form AP-1 and associated forms; and

(3) Shall permit verification thereof by the International Atomic Energy Agency (IAEA); and shall take other action as may be necessary to implement the US/IAEA Safeguards Agreement, as described in Part 75 of this chapter.

(d) In response to a written request by the Commission, each applicant for an Agreement State license or certificate, and each recipient of an Agreement State license or certificate shall submit facility information, as described in § 75.10 of this chapter, on Form N-71 and associated forms, and site information on DOC/NRC Form AP-A and associated forms; shall submit location information described in § 75.11 of this chapter on DOC/NRC Form AP-1 or AP-A and associated forms; shall permit verification thereof by the International Atomic Energy Agency (IAEA); and shall take other action as may be necessary to implement the US/IAEA Safeguards Agreement, as described in part 75 of this chapter.

[73 FR 78615, Dec. 23, 2008]

§ 150.19 Submission to Commission of tritium reports.

(a)-(b) [Reserved]

(c) Except as specified in paragraph (d) of this section, each person who, pursuant to an Agreement State license, is authorized to possess tritium shall report promptly to the appropriate NRC Regional Office as shown in appendix D of part 20 of this chapter by telephone and telegraph, mailgram, or facsimile any incident in which an attempt has been made or is believed to have been made to commit a theft or unlawful diversion of more than 10 curies of such material at any one time or 100 curies of such material in any one calendar year. The initial report must be followed within a period of fifteen days by a written report that sets forth the details of the incident and its consequences. The report must be submitted to the Director, Office of Nuclear material Safety and Safeguards, using an appropriate method listed in § 150.4, with a copy to the appropriate NRC Regional Office as shown in appendix A to part 73 of this chapter. Subsequent to the submission of the written report required by this paragraph, each person subject to the provisions of this paragraph shall promptly inform the appropriate NRC Regional Office by means of a written report of any substantive additional information, which becomes available to such person, concerning an attempted or apparent theft or unlawful diversion of tritium.

(d) The reports described in this section are not required for tritium possessed pursuant to a general license issued pursuant to regulations of an Agreement State equivalent to part 31 of this chapter or for tritium in spent fuel.

[37 FR 9208, May 6, 1972, as amended at 41 FR 16448, Apr. 19, 1976; 46 FR 55085, Nov. 6, 1981; 49 FR 24708, June 15, 1984; 52 FR 31613, Aug. 21, 1987; 68 FR 58825, Oct. 10, 2003; 73 FR 5727, Jan. 31, 2008; 79 FR 75742, Dec. 19, 2014]

§ 150.20 Recognition of Agreement State licenses.

(a)(1) Provided that the provisions of paragraph (b) of this section have been met, any person who holds a specific license from an Agreement State, where the licensee maintains an office for directing the licensed activity and retaining radiation safety records, is granted a general license to conduct the same activity in—

(i) Non-Agreement States;

(ii) Areas of Exclusive Federal jurisdiction within Agreement States; and

(iii) Offshore waters.

(2) The provisions of paragraph (a)(1) of this section do not apply if the specific Agreement State license limits the authorized activity to a specific installation or location.

(b) Notwithstanding any provision to the contrary in any specific license issued by an Agreement State to a person engaging in activities in a non-Agreement State, in an area of exclusive Federal jurisdiction within an Agreement State, or in offshore waters under the general licenses provided in this section, the general licenses provided in this section are subject to all the provisions of the Act, now or hereafter in effect, and to all applicable rules, regulations, and orders of the Commission including the provisions of §§ 30.7(a) through (f), 30.9, 30.10, 30.34, 30.41, and 30.51 through 30.63 of this chapter; §§ 40.7(a) through (f), 40.9, 40.10, 40.41, 40.51, 40.61 through 40.63, 40.71, and 40.81 of this chapter; §§ 70.7(a) through (f), 70.9, 70.10, 70.32, 70.42, 70.52, 70.55, 70.56, 70.60 through 70.62 of this chapter; §§ 74.11, 74.15, and 74.19 of this chapter; and to the provisions of 10 CFR parts 19, 20 and 71 and subparts C through H of part 34, §§ 39.15 and 39.31 through 39.77 of this chapter. In addition, any person engaging in activities in non-Agreement States, in areas of exclusive Federal jurisdiction within Agreement States, or in offshore waters under the general licenses provided in this section:

(1) Shall, at least 3 days before engaging in each activity for the first time in a calendar year, file a submittal containing an NRC Form 241, “Report of Proposed Activities in Non-Agreement States,” a copy of its Agreement State specific license, and the appropriate fee as prescribed in § 170.31 of this chapter with the Regional Administrator of the U.S. Nuclear Regulatory Commission Regional Office listed on the NRC Form 241 and in appendix D to part 20 of this chapter for the Region in which the Agreement State that issued the license is located. If a submittal cannot be filed 3 days before engaging in activities under reciprocity, because of an emergency or other reason, the Regional Administrator may waive the 3-day time requirement provided the licensee:

(i) Informs the Region by telephone, facsimile, an NRC Form 241, or a letter of initial activities or revisions to the information submitted on the initial NRC Form 241;

(ii) Receives oral or written authorization for the activity from the region; and

(iii) Within 3 days after the notification, files an NRC Form 241, a copy of the Agreement State license, and the fee payment.

(2) Shall file an amended NRC Form 241 or letter with the Regional Administrator to request approval for changes in work locations, radioactive material, or work activities different from the information contained on the initial NRC Form 241.

(3) Shall not, in any non-Agreement State, in an area of exclusive Federal jurisdiction within an Agreement State, or in offshore waters, transfer or dispose of radioactive material possessed or used under the general licenses provided in this section, except by transfer to a person who is specifically licensed by the Commission to receive this material.

(4) Shall not, under the general license concerning activities in non-Agreement States or in areas of exclusive Federal jurisdiction within Agreement States, possess or use radioactive materials, or engage in the activities authorized in paragraph (a) of this section, for more than 180 days in any calendar year, except that the general license in paragraph (a) of this section concerning activities in offshore waters authorizes that person to possess or use radioactive materials, or engage in the activities authorized, for an unlimited period of time.

(5) Shall comply with all terms and conditions of the specific license issued by an Agreement State except such terms or conditions as are contrary to the requirements of this section.

[35 FR 7725, May 20, 1970]

Editorial Note:For Federal Register citations affecting § 150.20, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 150.21 Transportation of special nuclear material by aircraft.

Except as specifically approved by the Commission no shipment of special nuclear material in excess of 20 grams or 20 curies whichever is less of plutonium or uranium-233 shall be made by a licensee of an Agreement State in passenger aircraft.

[38 FR 3039, Feb. 1, 1973]

§ 150.30 Violations.

(a) The Commission may obtain an injunction or other court order to prevent a violation of the provisions of—

(1) The Atomic Energy Act of 1954, as amended;

(2) Title II of the Energy Reorganization Act of 1974, as amended; or

(3) A regulation or order issued pursuant to those Acts.

(b) The Commission may obtain a court order for the payment of a civil penalty imposed under section 234 of the Atomic Energy Act:

(1) For violations of—

(i) Sections 53, 57, 62, 63, 81, 82, 101, 103, 104, 107, or 109 of the Atomic Energy Act of 1954, as amended;

(ii) Section 206 of the Energy Reorganization Act;

(iii) Any rule, regulation, or order issued pursuant to the sections specified in paragraph (b)(1)(i) of this section;

(iv) Any term, condition, or limitation of any license issued under the sections specified in paragraph (b)(1)(i) of this section.

(2) For any violation for which a license may be revoked under section 186 of the Atomic Energy Act of 1954, as amended.

[57 FR 55081, Nov. 24, 1992]

§ 150.31 Requirements for Agreement State regulation of byproduct material.

(a) Prior to November 8, 1981, in the licensing and regulation of byproduct material, as defined in § 150.3(c)(2) of this part, or of any activity which results in the production of such byproduct material, an Agreement State shall require compliance with the requirements in appendix A of 10 CFR part 40 of this chapter to the maximum extent practicable.

(b) After November 8, 1981, in the licensing and regulation of byproduct material, as defined in § 150.3(c)(2) of this part, or of any activity which results in the production of such byproduct material, an Agreement State shall require:

(1) Compliance with requirements in appendix A of 10 CFR part 40 of this chapter established by the Commission pertaining to ownership of such byproduct material and disposal sites for such material; and

(2) Compliance with standards which shall be adopted by the Agreement State for the protection of the public health, safety, and the environment from hazards associated with such material which are equivalent, to the extent practicable, or more stringent than, standards in appendix A of 10 CFR part 40 of this chapter adopted and enforced by the Commission for the same purposes, including requirements and standards subsequently promulgated by the Commission and the Administrator of the Environmental Protection Agency pursuant to the Uranium Mill Tailing Radiation Control Act of 1978; and

(3) Compliance with procedures which:

(i) In the case of licenses, under State law include:

(A) An opportunity, after public notice, for written comments and a public hearing, with a transcript;

(B) An opportunity for cross examination; and

(C) A written determination by the appropriate State official which is based upon findings included in such determination and upon the evidence presented during the public comment period and which is subject to judicial review;

(ii) In the case of rulemaking, provide an opportunity for public participation through written comments or a public hearing and provide for judicial review of the rule;

(iii) Require for each licensing action which has a significant impact on the human environment a written analysis by the appropriate State agency (which shall be available to the public before the commencement of any such proceedings) of the impact of such licensing action, including any activities conducted pursuant thereto, on the environment. Such analysis shall include:

(A) An assessment of the radiological and nonradiological impacts to the public health of the activities to be conducted pursuant to such licenses;

(B) An assessment of any impact on any waterway and groundwater resulting from such activities;

(C) Consideration of alternatives, including alternative sites and engineering methods, to the activities to be conducted pursuant to such license; and

(D) Consideration of the long term impacts, including decommissioning, decontamination, and reclamation impacts associated with activities to be conducted pursuant to such license, including the management of any byproduct material, as defined in § 150.3(c)(2) of this part; and

(iv) Prohibit commencement of construction with respect to such material prior to complying with the provisions of paragraph (b)(3)(iii) of this section. As used in this paragraph:

(A) The term commencement of construction means taking any action defined as “construction” or any other activity at the site of a facility subject to the regulations in this part that has a reasonable nexus to radiological health and safety.

(B) The term construction means the installation of foundations, or in-place assembly, erection, fabrication, or testing for any structure, system, or component of a facility or activity subject to the regulations in this part that have a reasonable nexus to radiological safety or security. The term “construction” does not include:

(1) Changes for temporary use of the land for public recreational purposes;

(2) Site exploration, including necessary borings to determine foundation conditions or other preconstruction monitoring to establish background information related to the suitability of the site, the environmental impacts of construction or operation, or the protection of environmental values;

(3) Preparation of the site for construction of the facility, including clearing of the site, grading, installation of drainage, erosion and other environmental mitigation measures, and construction of temporary roads and borrow areas;

(4) Erection of fences and other access control measures that are not related to the safe use of or security of radiological materials subject to this part;

(5) Excavation;

(6) Erection of support buildings (e.g., construction equipment storage sheds, warehouse and shop facilities, utilities, concrete mixing plants, docking and unloading facilities, and office buildings) for use in connection with the construction of the facility;

(7) Building of service facilities (e.g., paved roads, parking lots, railroad spurs, exterior utility and lighting systems, potable water systems, sanitary sewerage treatment facilities, and transmission lines);

(8) Procurement or fabrication of components or portions of the proposed facility occurring at other than the final, in-place location at the facility; or

(9) Taking any other action which has no reasonable nexus to radiological health and safety.

(c) No Agreement State shall be required under paragraph (b) to conduct proceedings concerning any license or regulation which would duplicate proceedings conducted by the Commission.

(d) In adopting requirements pursuant to paragraph (b)(2) of this section, the State may adopt alternatives (including, where appropriate, site-specific alternatives) to the requirements adopted and enforced by the Commission for the same purpose if, after notice and opportunity for public hearing, the Commission determines that the alternatives will achieve a level of stabilization and containment of the sites concerned, and a level of protection for public health, safety and the environment from radiological and nonradiological hazards associated with the sites, which is equivalent to, to the extent practicable, or more stringent than the level which would be achieved by standards and requirements adopted and enforced by the Commission for the same purpose and any final standards promulgated by the Administrator of the Environmental Protection Agency in accordance with section 275. Alternative State requirements may take into account local or regional conditions, including geology, topography, hydrology and meteorology.

[45 FR 65537, Oct. 3, 1980; 50 FR 41866, Oct. 16, 1985, as amended at 76 FR 56966, Sept. 15, 2011]

§ 150.32 Funds for reclamation or maintenance of byproduct material.

(a) The total amount of funds an Agreement State collects, pursuant to a license for byproduct material as defined in § 150.3(c)(2) of this part or for any activity that results in the production of such material, for reclamation or long term maintenance and monitoring of such material, shall after November 8, 1981, be transferred to the United States if title and custody of such material and its disposal site is transferred to the United States upon termination of such license. Such funds include, but are not limited to, sums collected for long term surveillance (i.e., continued site observation, monitoring and, where necessary, maintenance). Such funds do not however, include monies held as surety where no default has occurred and the reclamation or other bonded activity has been performed.

(b) If an Agreement State requires such payments for reclamation or long term surveillance (i.e., continued site observation, monitoring and, where necessary, maintenance), the payments must, after November 8, 1981, be sufficient to ensure compliance with those standards established by the Commission pertaining to bonds, sureties, and financial arrangements to ensure adequate reclamation and long term management of such byproduct material and its disposal site.

[45 FR 65537, Oct. 3, 1980; 48 FR 40882, Sept. 12, 1983]

§ 150.33 Criminal penalties.

(a) Section 223 of the Atomic Energy Act of 1954, as amended, provides for criminal sanctions for willful violation of, attempted violation of, or conspiracy to violate, any regulation issued under sections 161b, 161i, or 161o of the Act. For purposes of section 223, all the regulations in part 150 are issued under one or more of sections 161b, 161i, or 161o, except for sections listed in paragraph (b) of this section.

(b) The regulations in part 150 that are not issued under sections 161b, 161i, or 161o for the purposes of section 223 are as follows: §§ 150.1, 150.2, 150.3, 150.4, 150.5, 150.7, 150.8, 150.10, 150.11, 150.15, 150.15a, 150.30, 150.31, 150.32, and 150.33.

[57 FR 55081, Nov. 24, 1992]

§ 160.1 Purpose.

The regulations in this part are issued for the protection and security of facilities, installations and real property subject to the proprietory jurisdiction or administration, or in the custody of, the Nuclear Regulatory Commission. The regulations in this part shall cease to have effect on January 8, 2027, unless the NRC determines that the cessation deadline should be extended to a date not more than 5 years in the future after offering the public an opportunity to provide input on the costs and benefits of this part and considering that input. The NRC will publish a document in the Federal Register announcing its determination and revising or removing this part accordingly.

[28 FR 8400, Aug. 16, 1963, as amended at 40 FR 8794, Mar. 3, 1975; 90 FR 55634, Dec. 3, 2025]

§ 160.2 Scope.

The regulations in this part apply to all facilities, installations, and real property subject to the jurisdiction or administration of the Nuclear Regulatory Commission or in its custody which have been posted with a notice of the prohibitions and penalties set forth in this part.

[40 FR 8794, Mar. 3, 1975]

§ 160.3 Trespass.

Unauthorized entry upon any facility, installation or real property subject to this part is prohibited.

§ 160.4 Unauthorized introduction of weapons or dangerous materials.

Unauthorized carrying, transporting, or otherwise introducing or causing to be introduced any dangerous weapon, explosive, or other dangerous instrument or material likely to produce substantial injury or damage to persons or property, into or upon any facility, installation or real property subject to this part, is prohibited.

§ 160.5 Violations and penalties.

(a) Whoever willfully violates either §§ 160.3 or 160.4 shall, upon conviction, be punishable by a fine of not more than $1,000.

(b) Whoever willfully violates either §§ 160.3 or 160.4 with respect to any facility, installation or real property enclosed by a fence, wall, floor, roof, or other structural barrier shall be guilty of a misdemeanor and, upon conviction, shall be punished by a fine of not to exceed $5,000 or imprisonment for not more than one year, or both.

§ 160.6 Posting.

Notices stating the pertinent prohibitions of §§ 160.3 and 160.4 and penalties of § 160.5 will be conspicuously posted at all entrances of each designated facility, installation or parcel of real property and at such intervals along the perimeter as will provide reasonable assurance of notice to persons about to enter.

§ 160.7 Effective date of prohibition on designated locations.

The prohibitions in §§ 160.3 and 160.4 shall take effect as to any facility, installation or real property on publication in the Federal Register of the notice designating the facility, installation or real property and posting in accordance with § 160.6.

§ 160.8 Applicability of other laws.

Nothing in this part shall be construed to affect the applicability of the provisions of State or other Federal laws.

§ 170.1 Purpose.

The regulations in this part set out fees charged for licensing services, inspection services, and special projects rendered by the Nuclear Regulatory Commission as authorized under title V of the Independent Offices Appropriation Act, 1952 (31 U.S.C. 9701(a)).

[86 FR 32170, June 16, 2021]

§ 170.2 Scope.

Except for persons who apply for or hold the permits, licenses, or approvals exempted in § 170.11, the regulations in this part apply to a person who is:

(a) An applicant for or holder of a specific byproduct material license issued pursuant to parts 30 and 32 through 36 and 39 of this chapter;

(b) An applicant for or holder of a specific source material license issued pursuant to part 40 of this chapter;

(c) An applicant for or holder of a specific special nuclear material license issued pursuant to part 70 of this chapter;

(d) An applicant for or holder of specific approval of spent fuel casks and shipping containers issued pursuant to part 71 of this chapter;

(e) An applicant for or holder of a specific license to possess power reactor spent fuel and other radioactive materials associated with spent fuel storage in an independent spent fuel storage installation issued pursuant to part 72 of this chapter;

(f) An applicant for or holder of a specific approval of sealed sources and devices containing byproduct material, source material, or special nuclear material;

(g) An applicant for or holder of a production or utilization facility construction permit or operating license issued under 10 CFR part 50, or an early site permit, standard design certification, standard design approval, manufacturing license, or combined license issued under 10 CFR part 52;

(h) Required to have examinations and tests performed to qualify or requalify individuals as part 55 reactor operators;

(i) Required to have routine and non-routine safety and safeguards inspections of activities licensed pursuant to the requirements of this chapter;

(j) [Reserved]

(k) Applying for or already has applied for review, under appendix Q to 10 CFR part 50 of a facility site before the submission of an application for a construction permit;

(l) Applying for or already has applied for review of a standardized spent fuel facility design; or

(m) Applying for or has applied for since March 23, 1978, review of an item under the category of special projects in this chapter that the Commission completes or makes whether or not in conjunction with a license application on file or that may be filed.

(n) An applicant for or holder of a license, approval, determination, or other authorization issued by the Commission pursuant to 10 CFR part 61.

(o) Requesting preapplication/licensing review assistance by consulting with the NRC and/or by filing preliminary analyses, documents, or reports.

(p) An applicant for or a holder of a specific import or export license issued pursuant to 10 CFR part 110.

(q) An Agreement State licensee who files for or is holder of a general license under the reciprocity provisions of 10 CFR 150.20.

(r) An applicant for or a holder of a certificate of compliance issued under 10 CFR Part 76.

(s) A holder of a general license granted by 10 CFR Part 31 who is required to register a device(s).

(t) An owner or operator of an unlicensed site in decommissioning being conducted under NRC oversight.

(u) Submitting a Touhy request, pursuant to 10 CFR 9.200 through 9.204, as defined in § 170.3.

[49 FR 21301, May 21, 1984, as amended at 52 FR 8242, Mar. 17, 1987; 54 FR 15399, Apr. 18, 1989; 56 FR 31499, July 10, 1991; 58 FR 7737, Feb. 9, 1993; 64 FR 31469, June 10, 1999; 66 FR 32469, June 14, 2001; 70 FR 30543, May 26, 2005; 72 FR 49565, Aug. 28, 2007; 81 FR 41186, June 24, 2016]

§ 170.3 Definitions.

As used in this part:

Act means the Atomic Energy Act of 1954 (68 Stat. 919) including any amendments thereto;

Advanced nuclear reactor applicant means an entity that has submitted to the Commission a “qualifying application,” as defined in this part.

Advanced nuclear reactor pre-applicant means an entity that has submitted to the Commission a licensing project plan for the purposes of submitting a future “qualifying application,” as defined in this part.

Agency support (corporate support and the IG) means resources located in executive, administrative, and other support offices such as the Office of the Commission, the Office of the Secretary, the Office of the Executive Director for Operations, the Offices of Congressional and Public Affairs, the Office of the Inspector General, the Office of Administration, the Office of the Chief Financial Officer, the Office of the Chief Information Officer, the Office of the Chief Human Capital Officer and the Office of Small Business and Civil Rights. These resources administer the corporate or shared efforts that more broadly support the activities of the agency. These resources also include information technology services, human capital services, financial management, and administrative support.

Agreement State means any State with which the Commission or the Atomic Energy Commission has entered into an effective agreement under subsection 274b of the Act. “Nonagreement State” means any other State.

Applicant failure means actions or inaction that—

(1) Are within the reasonable control of a diligent applicant;

(2) Are not due to actions or inaction of the Commission; and

(3) Will cause substantial delays or require a significant increase in resources, including explicit requests by the applicant to the Commission to pause or delay review.

Application means any request filed with the Commission for a permit, license, approval, exemption, certificate, other permission, or for any other service.

Byproduct material means—

(1) Any radioactive material (except special nuclear material) yielded in, or made radioactive by, exposure to the radiation incident to the process of producing or using special nuclear material;

(2)(i) Any discrete source of radium-226 that is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity; or

(ii) Any material that—

(A) Has been made radioactive by use of a particle accelerator; and

(B) Is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity; and

(3) Any discrete source of naturally occurring radioactive material, other than source material, that—

(i) The Commission, in consultation with the Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of Homeland Security, and the head of any other appropriate Federal agency, determines would pose a threat similar to the threat posed by a discrete source of radium-226 to the public health and safety or the common defense and security; and

(ii) Before, on, or after August 8, 2005, is extracted or converted after extraction for use in a commercial, medical, or research activity.

Government agency means any executive department, commission, independent establishment, corporation, wholly or partly owned by the United States of America which is an instrumentality of the United States, or any board, bureau, division, service, office, officer, authority, administration, or other establishment in the executive branch of the Government.

Greater Than Class C Waste or GTCC Waste means low-level radioactive waste that exceeds the concentration limits of radionuclides established for Class C waste in 10 CFR 61.55.

High Enriched Uranium means uranium enriched to 20 percent or greater in the isotope uranium-235.

Human use means the internal or external administration of byproduct, source, or special nuclear material, or the radiation therefrom, to human beings.

Inspections means:

(1) Routine inspections designed to evaluate the licensee's activities within the context of the licensee having primary responsibility for protection of the public and environment;

(2) Non-routine inspections in response or reaction to an incident, allegation, follow up to inspection deficiencies or inspections to determine implementation of safety issues. A non-routine or reactive inspection has the same purpose as the routine inspection;

(3) Reviews and assessments of licensee performance;

(4) Evaluations, such as those performed by Diagnostic Evaluation Teams; or

(5) Incident investigations.

Low Enriched Uranium means uranium enriched below 20 percent in the isotope uranium-235.

Manufacturing license means a license under subpart F of part 52 of this chapter or subpart H of part 53 of this chapter to manufacture a nuclear power reactor(s) to be operated at sites not identified in the license application.

Materials license means a license, certificate, approval, registration, or other form of permission issued or granted by the NRC under the regulations in 10 CFR parts 30, 31 through 36, 39, 40, 61, 70, 72, and 76.

Mission-direct program salaries and benefits means resources that are allocated to perform core work activities committed to fulfilling the agency's mission of protecting the public health and safety, promoting the common defense and security, and protecting the environment. These resources include the core work activities assigned within the major program business lines (Operating Reactors, New Reactors, Fuel Facilities, Nuclear Materials Users, Decommissioning and Low-Level Waste, and Spent Fuel Storage and Transportation).

Mission-indirect program support means resources that support the core mission-direct activities. These resources include supervisory and nonsupervisory support and mission travel and training. Supervisory and nonsupervisory support and mission travel and training resources assigned under direct business line structure are considered mission-indirect due to their supporting role of the core mission activities.

Non-power production or utilization facility means a production or utilization facility licensed under 10 CFR 50.21(a) or (c), or 10 CFR 50.22, as applicable, that is not a nuclear power reactor or production facility as defined under paragraphs (1) and (2) of the definition of “production facility” in 10 CFR 50.2.

Nonprofit educational institution means a public or nonprofit educational institution whose primary function is education, whose programs are accredited by a nationally recognized accrediting agency or association, who is legally authorized to provide a program of organized instruction or study, who provides an educational program for which it awards academic degrees, and whose educational programs are available to the public.

Nuclear reactor means an apparatus, other than an atomic weapon, designed or used to sustain nuclear fission in a self-supporting chain reaction.

Other production or utilization facility means a facility other than a nuclear reactor licensed by the Commission under the authority of section 103 or 104 of the Atomic Energy Act of 1954, as amended (the Act), and pursuant to the provisions of part 50 of this chapter.

Part 55 Reviews as used in this part means those services provided by the Commission to administer requalification and replacement examinations and tests for reactor operators licensed under 10 CFR part 55 or part 53 of the Commission's regulations and employed by part 50 or part 53 licensees. These services also include related items such as the preparation, review, and grading of the examinations and tests.

Person as used in this part has the same meaning as found in parts 30, 40, 50, and 70 of title 10 of the Code of Federal Regulations.

Power reactor means a nuclear reactor designed to produce electrical or heat energy licensed by the Commission under the authority of section 103 or subsection 104b of the Act, and under the provisions of § 50.21(b), § 50.22, or part 53 of this chapter.

Production facility means:

(1) Any nuclear reactor designed or used primarily for the formation of plutonium or uranium-233; or

(2) Any facility designed or used for the separation of the isotopes of plutonium, except laboratory scale facilities designed or used for experimental or analytical purposes only; or

(3) Any facility designed or used for the processing of irradiated materials containing special nuclear material except:

(i) Laboratory scale facilities designed or used for experimental or analytical purposes;

(ii) Facilities in which the only special nuclear materials contained in the irradiated material to be processed are uranium enriched in the isotope U 235 and plutonium produced by the irradiation, if the material processed contains not more than 10−6 grams of plutonium per gram of U 235 and has fission product activity not in excess of 0.25 millicurie of fission products per gram of U 235; and

(iii) Facilities in which processing is conducted pursuant to a license issued under parts 30 and 70 of this chapter, or equivalent regulations of an Agreement State, for the receipt, possession, use, and transfer of irradiated special nuclear material, which authorizes the processing of the irradiated material on a batch basis for the separation of selected fission products and limits the process batch to not more than 100 grams of uranium enriched in the isotope 235 and not more than 15 grams of any other special nuclear material.

Qualifying application means an application that:

(1) is for an advanced nuclear reactor as defined in section 3 of the Nuclear Energy Innovation and Modernization Act (42 U.S.C. 2215 note); and

(2) is for an operating license, combined license, manufacturing license, construction permit, early site permit, limited work authorization, design certification, or standard design approval.

Research reactor means a non-power production or utilization facility, as defined in 10 CFR 50.2, that is a nuclear reactor licensed under 10 CFR 50.21(c):

(i) For which a safety assessment demonstrates accident radiation doses consistent with 10 CFR 50.34(a)(1)(i); and

(ii) That is not a testing facility.

Sealed source means any byproduct material that is encased in a capsule designed to prevent leakage or escape of the byproduct material.

Small modular reactor (SMR) for the purposes of calculating fees, means the class of power reactors having a licensed thermal power rating less than or equal to 1,000 MWt per module. This rating is based on the thermal power equivalent of an SMR with an electrical power generating capacity of 300 MWe or less per module.

Small modular reactor site (SMR site) is the geographically bounded location of one or more SMRs and a basis on which SMR fees are calculated.

Source material means:

(1) Uranium or thorium, or any combination thereof, in any physical or chemical form; or

(2) Ores which contain by weight one-twentieth of one percent (0.05%) or more of

(i) Uranium,

(ii) Thorium, or

(iii) Any combination thereof. Source material does not include special nuclear material.

Special nuclear material means:

(1) Plutonium, uranium-233, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Commission, pursuant to the provisions of section 51 of the Act, determines to be special nuclear material but does not include source material; or

(2) Any material artificially enriched by any of the foregoing, but does not include source material.

Special projects means specific services provided by the Commission for which fees are not otherwise specified in this chapter. This includes, but is not limited to, contested hearings on licensing actions directly related to U.S. Government national security initiatives (as determined by the NRC), topical report reviews, early site reviews, waste solidification activities, activities related to the tracking and monitoring of shipment of classified matter, services provided to certify licensee, vendor, or other private industry personnel as instructors for 10 CFR part 55 or part 53 reactor operators, reviews of financial assurance submittals that do not require a license amendment, reviews of responses to Confirmatory Action Letters, reviews of uranium recovery licensees' land-use survey reports, and reviews of § 50.71 or § 53.1545 of this chapter Final Safety Analysis Reports. Special projects does not include activities otherwise exempt from fees under this part. It also does not include those contested hearings for which a fee exemption is granted in § 170.11(a)(2), including those related to individual plant security modifications.

Testing facility is defined at 10 CFR 50.2.

Touhy request means a request for NRC records or NRC testimony that is made pursuant to the NRC's regulations at 10 CFR 9.200 through 9.204.

Uranium enrichment facility means:

(1) Any facility used for separating the isotopes of uranium or enriching uranium in the isotope 235, except laboratory scale facilities designed or used for experimental or analytical purposes only; or

(2) Any equipment or device, or important component part especially designed for this equipment or device, capable of separating the isotopes of uranium or enriching uranium in the isotope 235.

Utilization facility means:

(1) Any nuclear reactor other than one designed or used primarily for the formation of plutonium or U-233; or

(2) An accelerator-driven subcritical operating assembly used for the irradiation of materials containing special nuclear material and described in the application assigned docket number 50-608.

[33 FR 10924, Aug. 1, 1968]

Editorial Note:For Federal Register citations affecting § 170.3, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 170.4 Interpretations.

Except as specifically authorized by the Commission in writing, no interpretation of the meaning of the regulations in this part by an officer or employee of the Commission other than a written interpretation by the General Counsel will be recognized to be binding upon the Commission. This section shall cease to have effect on January 8, 2027, unless the NRC determines that the cessation deadline should be extended to a date not more than 5 years in the future after offering the public an opportunity to provide input on the costs and benefits of this section and considering that input. The NRC will publish a document in the Federal Register announcing its determination and revising or removing this section accordingly.

[33 FR 10924, Aug. 1, 1968; 33 FR 11587, Aug. 15, 1968, as amended at 90 FR 55634, Dec. 3, 2025]

§ 170.5 Communications.

All communications concerning the regulations in this part should be addressed to the NRC's Chief Financial Officer, either by mail to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information.

[68 FR 58825, Oct. 10, 2003, as amended at 74 FR 62686, Dec. 1, 2009; 80 FR 74982, Dec. 1, 2015]

§ 170.8 Information collection requirements: OMB approval

This part contains no information collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

[62 FR 52191, Oct. 6, 1997]

§ 170.11 Exemptions.

(a) No application fees, license fees, renewal fees, inspection fees, or special project fees shall be required for:

(1) A special project that is a request/report submitted to the NRC—

(i) In response to a generic letter or NRC bulletin, where the request/report does not result in an amendment to the license, does not result in the review of an alternate method or reanalysis to meet the requirements of the generic letter, or does not involve an unreviewed safety issue;

(ii) When the NRC, at the time the request/report is submitted, plans to use the information to assist the NRC in generic regulatory improvements or efforts (e.g., rules, regulatory guides, regulations, policy statements, generic letters, or bulletins); or

(iii) When the NRC, at the time the request/report is submitted, plans to use the information in response to an NRC request from the Office Director level or above to resolve an identified safety, safeguards, or environmental issue.

(2) A contested hearing conducted by the NRC on a specific application or the authorizations and conditions of a specific NRC license, certificate, or other authorization, including those involving individual plant security modifications. This exemption does not apply to a contested hearing on a licensing action that the NRC determines directly involves a U.S. Government national security-related initiative, including those specifically associated with Presidentially-directed national security programs.

(3) [Reserved]

(4) A construction permit or license applied for by, or issued to, a non-profit educational institution for a production or utilization facility, other than a power reactor, or for the possession and use of byproduct material, source material, or special nuclear material. This exemption does not apply to those byproduct, source or special nuclear material licenses which authorize:

(i) Human use;

(ii) Remunerated services to other persons;

(iii) Distribution of byproduct material, source material, or special nuclear material or products containing byproduct material, source material or special nuclear material; or

(iv) Activities performed under a Government agency contract.

(5)-(8) [Reserved]

(9) Federally-owned and State-owned research reactors used primarily for educational training and academic research purposes. For purposes of this exemption, the term research reactor means a nuclear reactor that—

(i) Is licensed by the Nuclear Regulatory Commission under section 104c. of the Atomic Energy Act of 1954 (42 U.S.C. 2134(c)) at a thermal power level of 10 megawatts or less; and

(ii) If so licensed at a thermal power level of more than 1 megawatt, does not contain—

(A) A circulating loop through the core in which the licensee conducts fuel experiments;

(B) A liquid fuel loading; or

(C) An experimental facility in the core in excess of 16 square inches in cross-section.

(10) Activities of the Commission undertaken, pursuant to part 75 of this chapter, solely for the purpose of implementation of the US/IAEA Safeguards Agreement.

(11) [Reserved]

(12) A performance assessment or evaluation for which the licensee volunteers at the NRC's request and which is selected by the NRC.

(b) The Commission may, upon application by an interested person, or upon its own initiative, grant such exemptions from the requirements of this part as it determines are authorized by law and are otherwise in the public interest. Applications for exemption under this paragraph may include activities such as, but not limited to, the use of licensed materials for educational or noncommercial public displays or scientific collections.

(c) For purposes of paragraph (a)(1) of this section, a request for a fee exemption must be submitted to the Chief Financial Officer within 90 days of the date of the NRC's receipt of the request/report.

(d) All fee exemption requests must be submitted in writing to the Chief Financial Officer in accordance with § 170.5, and the Chief Financial Officer will grant or deny such requests in writing. Fee exemption requests submitted via email should be submitted to the NRC at cfofeeexemptionrequests.resource@nrc.gov.

[33 FR 10924, Aug. 1, 1968]

Editorial Note:For Federal Register citations affecting § 170.11, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 170.12 Payment of fees.

(a) Application and registration fees. Each application or registration for which a fee is prescribed must be accompanied by a remittance for the full amount of the fee. The NRC will not issue a new license or an amendment increasing the scope of an existing license to a higher fee category before receiving the prescribed application fee. The application or registration fee(s) is charged whether the Commission approves the application or not. The application or registration fee(s) is also charged if the applicant withdraws the application or registration.

(b) Licensing fees. (1) Licensing fees will be assessed to recover full costs for—

(i) The review of applications for new licenses and approvals;

(ii) The review of applications for amendments to and renewal of existing licenses or approvals;

(iii) Preapplication consultations and reviews; and

(iv) The full cost for project managers assigned to a specific plant or facility, excluding leave time and time spent on generic activities (such as rulemaking).

(2) Full cost fees will be determined based on the professional staff time and appropriate contractual support services expended. The full cost fees for professional staff time will be determined at the professional hourly rates in effect the time the service was provided. The full cost fees are payable upon notification by the Commission.

(3) The NRC intends to bill each applicant or licensee at quarterly intervals for all accumulated costs for each application the applicant or licensee has on file for NRC review, until the review has been brought to an end, whether by issuance of a permit, license, approval, certificate, exemption, or other form of permission; by denial, withdrawal, or suspension of review of the application; or by postponement of action on the application by the applicant.

(4) The NRC intends to bill each applicant or licensee for costs related to project manager time on a quarterly basis. Each bill will identify the costs related to project manager time.

(c) Inspection fees. (1) Inspection fees will be assessed to recover full cost for each resident inspector (including the senior resident inspector), assigned to a specific plant or facility. The fees assessed will be based on the number of hours that each inspector assigned to the plant or facility is in an official duty status (i.e., all time in a non-leave status), excluding time spent by a resident inspector in support of activities at another site. The hours will be billed at the appropriate hourly rate established in 10 CFR 170.20. Resident inspectors' time related to a specific inspection will be included in the fee assessed for the specific inspection in accordance with paragraph (c)(2) of this section.

(2) Inspection fees will be assessed to recover the full cost for each specific inspection, including plant- or licensee-specific performance reviews and assessments, evaluations, and incident investigations. For inspections that result in the issuance of an inspection report, fees will be assessed for costs incurred up to approximately 30 days after the inspection report is issued. The costs for these inspections include preparation time, time on site, documentation time, and follow-up activities and any associated contractual service costs, but exclude the time involved in the processing and issuance of a notice of violation or civil penalty.

(3) The NRC intends to bill for resident inspectors' time and for specific inspections subject to full cost recovery on a quarterly basis. The fees are payable upon notification by the Commission.

(d) Special project fees. (1) All special projects performed by the Commission, unless otherwise exempt from fees or for which fees are otherwise specified in this part, will be assessed fees to recover the full cost of the service provided. Special projects means specific services provided by the Commission, including but not limited to—

(i) Topical reports;

(ii) Financial assurance submittals that do not require a license amendment;

(iii) Responses to Confirmatory Action Letters;

(iv) Uranium recovery licensees' land-use survey reports;

(v) 10 CFR 50.71 or 53.1545 Final Safety Analysis Reports;

(vi) Contested hearings on licensing actions directly involving U.S Government national security initiatives, as determined by the NRC; and

(vii) Responses to Touhy requests that require the NRC staff to expend more than 50 hours of official time. Fees for Touhy requests will be billed at the appropriate hourly rate established in § 170.20.

(2) The NRC intends to bill each applicant or licensee at quarterly intervals until the special project is completed. Each bill will identify the special project, including any documents submitted for review or the specific contested hearing, and the related costs. The fees are payable upon notification by the Commission.

(e) Part 55 review fees. Fees for part 55 review services are based on NRC time spent in administering the examinations and tests and any related contractual costs. The fees assessed will also include related activities such as preparing, reviewing, and grading of the examinations and tests. The NRC intends to bill the costs at quarterly intervals to the licensee employing the operators.

(f) Method of payment. All fee payments under this part are to be made payable to the U.S. Nuclear Regulatory Commission. The payments are to be made in U.S. funds using the electronic payment methods accepted at www.Pay.gov. Specific instructions for making payments may be obtained by contacting the Office of the Chief Financial Officer at 301-415-7554. In accordance with Department of the Treasury requirements, refunds will only be made upon receipt of information on the payee's financial institution and bank accounts.

(g) Collection of underpayment of fees. The NRC is entitled to collect any underpayment of fees as a result of an error by the NRC.

[64 FR 31469, June 10, 1999, as amended at 65 FR 11204, Mar. 2, 2000; 65 FR 36959, June 12, 2000; 66 FR 32469, June 14, 2001; 67 FR 64037, Oct. 17, 2002; 72 FR 31420, June 6, 2007; 79 FR 37144, June 30, 2014; 81 FR 41186, June 24, 2016; 87 FR 37214, June 22, 2022; 88 FR 39140, June 15, 2023; 89 FR 51811, June 20, 2024; 91 FR 15879, Mar. 30, 2026]

§ 170.20 Average cost per professional staff-hour.

(a) Except as provided in paragraphs (b) and (c) of this section, fees for permits, licenses, amendments, renewals, special projects, 10 CFR part 55 re-qualification and replacement examinations and tests, other required reviews, approvals, and inspections under §§ 170.21 and 170.31 will be calculated using the professional staff-hour rate of $337 per hour.

(b) For advanced nuclear reactor applicants:

(1) Fees under § 170.21 relating to the review of the submitted application for the advanced nuclear reactor applicant will be calculated using the reduced hourly rate of $154 per hour.

(2) [Reserved]

(c) For advanced nuclear reactor pre-applicants:

(1) Fees under § 170.21 relating to the review of submitted materials as described in the licensing project plan will be calculated using the reduced hourly rate of $154 per hour.

(2) This paragraph (c) shall cease to be effective on September 30, 2030.

[90 FR 26753, June 24, 2025, as amended at 91 FR 36496, June 16, 2026]

§ 170.21 Schedule of fees for production and utilization facilities, review of standard referenced design approvals, special projects, inspections and import and export licenses.

Applicants for construction permits, manufacturing licenses, operating licenses, import and export licenses, approvals of facility standard reference designs, re-qualification and replacement examinations for reactor operators, and special projects and holders of construction permits, licenses, and other approvals shall pay fees for the following categories of services:

Table 1 to § 170.21—Schedule of Facility Fees

[See footnotes at end of table]

Facility categories and type of fees | Fees 1 2

A. Nuclear Power Reactors:

Application for Construction Permit | Full Cost.

Early Site Permit, Construction Permit, Combined License, Operating License | Full Cost.

Amendment, Renewal, Dismantling-Decommissioning and Termination, Other Approvals | Full Cost.

Inspections 3 | Full Cost.

B. Standard Reference Design Review:

Standard Design Approvals, Certification | Full Cost.

Amendment, Renewal, Other Approvals | Full Cost.

C. Test Facility/Research Reactor/Critical Facility:

Application for Construction Permit | Full Cost.

Construction Permit, Operating License | Full Cost.

Amendment, Renewal, Dismantling-Decommissioning and Termination, Other Approvals | Full Cost.

Inspections 3 | Full Cost.

D. Manufacturing License:

Application for Construction | Full Cost.

Standard Design Approval | Full Cost.

Amendment, Renewal, Other Approvals | Full Cost.

Inspections 3 | Full Cost.

E. [Reserved]

F. [Reserved]

G. Other Production or Utilization Facility:

Application for Construction Permit | Full Cost.

Construction Permit, Operating License | Full Cost.

Amendment, Renewal, Other Approvals | Full Cost.

Inspections 3 | Full Cost.

H. Production or Utilization Facility Permanently Closed Down:

Inspections 3 | Full Cost.

I. Part 55 Reviews:

Requalification and Replacement Examinations for Reactors Operators | Full Cost.

J. Special Projects:

Approvals and preapplication/licensing activities | Full Cost.

Inspections 3 | Full Cost.

Contested hearings on licensing actions directly related to U.S. Government national security initiatives | Full Cost.

Touhy requests 5 | Full Cost.

K. Import and export licenses: 6

Licenses for the import and export only of production or utilization facilities or the export only of components for production or utilization facilities issued under 10 CFR part 110

1. Application for import or export of production or utilization facilities 4 (including reactors and other facilities) and exports of components requiring Commission and Executive Branch review, for example, actions under 10 CFR 110.40(b)

Application—new license, or amendment; or license exemption request | N/A

2. Application for export of reactor and other components requiring Executive Branch review, for example, those actions under 10 CFR 110.41(a).

Application—new license, or amendment; or license exemption request | N/A

3. Application for export of components requiring the assistance of the Executive Branch to obtain foreign government assurances

Application—new license, or amendment; or license exemption request | N/A

4. Application for export of facility components and equipment not requiring Commission or Executive Branch review, or obtaining foreign government assurances

Application—new license, or amendment; or license exemption request | N/A

5. Minor amendment of any active export or import license, for example, to extend the expiration date, change domestic information, or make other revisions which do not involve any substantive changes to license terms or conditions or to the type of facility or component authorized for export and, therefore, do not require in-depth analysis or review or consultation with the Executive Branch, U.S. host state, or foreign government authorities

Minor amendment to license | N/A

1 Fees will be charged for approvals issued under a specific exemption provision of the Commission's regulations under title 10 of the Code of Federal Regulations (e.g., 10 CFR 50.12, 10 CFR 53.080, 10 CFR 73.5) and any other sections in effect now or in the future, regardless of whether the approval is in the form of a license amendment, letter of approval, safety evaluation report, or other form.

2 Full cost fees will be determined based on the professional staff time and appropriate contractual support services expended. For applications currently on file and for which fees are determined based on the full cost expended for the review, the professional staff hours expended for the review of the application up to the effective date of the final rule will be determined at the professional hourly rate in effect when the service was provided. Effective October 1, 2025, the “full cost fees” described in the table 1 for advanced nuclear reactor applicants and advanced nuclear reactor pre-applicants will be assessed consistent with § 170.20(b) and (c).

3 Inspections covered by this schedule are both routine and non-routine safety and safeguards inspections performed by the NRC for the purpose of review or follow-up of a licensed program. Inspections are performed through the full term of the license to ensure that the authorized activities are being conducted in accordance with the Atomic Energy Act of 1954, as amended, other legislation, Commission regulations or orders, and the terms and conditions of the license. Non-routine inspections that result from third-party allegations will not be subject to fees.

4 Imports only of major components for end-use at NRC-licensed reactors are authorized under NRC general import license in 10 CFR 110.27.

5 Full cost fees will be assessed once NRC work on a Touhy request exceeds 50 hours, in accordance with § 170.12(d).

6 Because the resources for import and export licensing activities are identified as a fee-relief activity to be excluded from the fee-recoverable budget, import and export licensing actions will not incur fees.

[53 FR 52648, Dec. 29, 1988]

Editorial Note:For Federal Register citations affecting § 170.21, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 170.31 Schedule of fees for materials licenses and other regulatory services, including inspections, and import and export licenses.

Applicants for materials licenses, import and export licenses, and other regulatory services, and holders of materials licenses or import and export licenses shall pay fees for the following categories of services. For those fee categories identified to be subject to full cost fees, full cost fees will be assessed for all licensing and inspection activities, unless otherwise indicated.

Table 1 to § 170.31—Schedule of Materials Fees

[See footnotes at end of table]

Category of materials licenses and type of fees 1 | Fees 2 3

1. Special nuclear material: 11

A. (1) Licenses for possession and use of U-235 or plutonium for fuel fabrication activities

(a) Strategic Special Nuclear Material (High Enriched Uranium). 6 [Program Code(s): 21213] | Full Cost.

(b) Low Enriched Uranium in Dispersible Form Used for Fabrication of Power Reactor Fuel. 6 [Program Code(s): 21210] | Full Cost.

(2) All other special nuclear materials licenses not included in category 1.A.(1) which are licensed for fuel cycle activities. 6

(a) Facilities with limited operations. 6 [Program Code(s): 21240, 21310, 21320] | Full Cost.

(b) Gas centrifuge enrichment demonstration facilities. 6 [Program Code(s): 21205] | Full Cost.

(c) Others, including hot cell facilities. 6 [Program Code(s): 21130, 21131, 21133] | Full Cost.

B. Licenses for receipt and storage of spent fuel and reactor-related Greater than Class C (GTCC) waste at an independent spent fuel storage installation (ISFSI). 6 [Program Code(s): 23200] | Full Cost.

C. Licenses for possession and use of special nuclear material of less than a critical mass, as defined in § 70.4 of this chapter, in sealed sources contained in devices used in industrial measuring systems, including x-ray fluorescence analyzers. 4 Application [Program Code(s): 22140] | $1,500.

D. All other special nuclear material licenses, except licenses authorizing special nuclear material in sealed or unsealed form in combination that would constitute a critical mass, as defined in § 70.4 of this chapter, for which the licensee shall pay the same fees as those under category 1.A. 4 Application [Program Code(s): 22110, 22111, 22120, 22131, 22136, 22150, 22151, 22161, 22170, 23100, 23300, 23310] | $3,100.

E. Licenses or certificates for construction and operation of a uranium enrichment facility. 6 [Program Code(s): 21200] | Full Cost.

F. Licenses for possession and use of special nuclear material greater than critical mass, as defined in § 70.4 of this chapter, for development and testing of commercial products, and other non-fuel-cycle activities. 4 6 [Program Code(s): 22155] | Full Cost.

2. Source material: 11

A. (1) Licenses for possession and use of source material for refining uranium mill concentrates to uranium hexafluoride or for deconverting uranium hexafluoride in the production of uranium oxides for disposal. 6 [Program Code(s): 11400] | Full Cost.

(2) Licenses for possession and use of source material in recovery operations such as milling, in situ recovery, heap-leaching, ore buying stations, ion-exchange facilities, and in processing of ores containing source material for extraction of metals other than uranium or thorium, including licenses authorizing the possession of byproduct waste material (tailings) from source material recovery operations, as well as licenses authorizing the possession and maintenance of a facility in a standby mode. 6

(a) Conventional and Heap Leach facilities. 6 [Program Code(s): 11100] | Full Cost.

(b) Basic In Situ Recovery facilities. 6 [Program Code(s): 11500] | Full Cost.

(c) Expanded In Situ Recovery facilities. 6 [Program Code(s): 11510] | Full Cost.

(d) In Situ Recovery Resin facilities. 6 [Program Code(s): 11550] | Full Cost.

(e) Resin Toll Milling facilities. 6 [Program Code(s): 11555] | Full Cost.

(f) Other facilities. 6 [Program Code(s): 11700] | Full Cost.

(3) Licenses that authorize the receipt of byproduct material, as defined in section 11e.(2) of the Atomic Energy Act, from other persons for possession and disposal, except those licenses subject to the fees in category 2.A.(2) or category 2.A.(4). 6 [Program Code(s): 11600, 12000] | Full Cost.

(4) Licenses that authorize the receipt of byproduct material, as defined in section 11e.(2) of the Atomic Energy Act, from other persons for possession and disposal incidental to the disposal of the uranium waste tailings generated by the licensee's milling operations, except those licenses subject to the fees in category 2.A.(2). 6 [Program Code(s): 12010] | Full Cost.

B. Licenses which authorize the possession, use, and/or installation of source material for shielding. 7 8 Application [Program Code(s): 11210] | $1,500.

C. Licenses to distribute items containing source material to persons exempt from the licensing requirements of part 40 of this chapter. Application [Program Code(s): 11240] | $7,200.

D. Licenses to distribute source material to persons generally licensed under part 40 of this chapter. Application [Program Code(s): 11230, 11231] | $3,300.

E. Licenses for possession and use of source material for processing or manufacturing of products or materials containing source material for commercial distribution. Application [Program Code(s): 11710] | $3,200.

F. All other source material licenses. Application [Program Code(s): 11200, 11220, 11221, 11300, 11800, 11810, 11820] | $3,200.

3. Byproduct material: 11

A. Licenses of broad scope for the possession and use of byproduct material issued under parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. Number of locations of use: 1-5. Application [Program Code(s): 03211, 03212, 03213] | $15,800.

(1). Licenses of broad scope for the possession and use of byproduct material issued under parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. Number of locations of use: 6-20. Application [Program Code(s): 04010, 04012, 04014] | $20,900.

(2). Licenses of broad scope for the possession and use of byproduct material issued under parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. Number of locations of use: more than 20. Application [Program Code(s): 04011, 04013, 04015] | $26,200.

B. Other licenses for possession and use of byproduct material issued under part 30 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. Number of locations of use: 1-5. Application [Program Code(s): 03214, 03215, 22135, 22162] | $4,300.

(1). Other licenses for possession and use of byproduct material issued under part 30 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. Number of locations of use: 6-20. Application [Program Code(s): 04110, 04112, 04114, 04116] | $5,800.

(2). Other licenses for possession and use of byproduct material issued under part 30 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. Number of locations of use: more than 20. Application [Program Code(s): 04111, 04113, 04115, 04117] | $7,200.

C. Licenses issued under §§ 32.72 and/or 32.74 of this chapter that authorize the processing or manufacturing and distribution or redistribution of radiopharmaceuticals, generators, reagent kits, and/or sources and devices containing byproduct material. This category does not apply to licenses issued to nonprofit educational institutions whose processing or manufacturing is exempt under § 170.11(a)(4). Number of locations of use: 1-5. Application [Program Code(s): 02500, 02511, 02513] | $6,300.

(1). Licenses issued under §§ 32.72 and/or 32.74 of this chapter that authorize the processing or manufacturing and distribution or redistribution of radiopharmaceuticals, generators, reagent kits, and/or sources and devices containing byproduct material. This category does not apply to licenses issued to nonprofit educational institutions whose processing or manufacturing is exempt under § 170.11(a)(4). Number of locations of use: 6-20. Application [Program Code(s): 04210, 04212, 04214] | $8,400.

(2). Licenses issued under §§ 32.72 and/or 32.74 of this chapter that authorize the processing or manufacturing and distribution or redistribution of radiopharmaceuticals, generators, reagent kits, and/or sources and devices containing byproduct material. This category does not apply to licenses issued to nonprofit educational institutions whose processing or manufacturing is exempt under § 170.11(a)(4). Number of locations of use: more than 20. Application [Program Code(s): 04211, 04213, 04215] | $10,400.

D. [Reserved] | N/A.

E. Licenses for possession and use of byproduct material in sealed sources for irradiation of materials in which the source is not removed from its shield (self-shielded units). Application [Program Code(s): 03510, 03520] | $3,900.

F. Licenses for possession and use of less than or equal to 10,000 curies of byproduct material in sealed sources for irradiation of materials in which the source is exposed for irradiation purposes. This category also includes underwater irradiators for irradiation of materials where the source is not exposed for irradiation purposes. Application [Program Code(s): 03511] | $7,900.

G. Licenses for possession and use of greater than 10,000 curies of byproduct material in sealed sources for irradiation of materials in which the source is exposed for irradiation purposes. This category also includes underwater irradiators for irradiation of materials where the source is not exposed for irradiation purposes. Application [Program Code(s): 03521] | $75,100.

H. Licenses issued under subpart A of part 32 of this chapter to distribute items containing byproduct material that require device review to persons exempt from the licensing requirements of part 30 of this chapter. The category does not include specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of part 30 of this chapter. Application [Program Code(s): 03254, 03255, 03257] | $8,000.

I. Licenses issued under subpart A of part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require device evaluation to persons exempt from the licensing requirements of part 30 of this chapter. This category does not include specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of part 30 of this chapter. Application [Program Code(s): 03250, 03251, 03253, 03256] | $12,400.

J. Licenses issued under subpart B of part 32 of this chapter to distribute items containing byproduct material that require sealed source and/or device review to persons generally licensed under part 31 of this chapter. This category does not include specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under part 31 of this chapter. Application [Program Code(s): 03240, 03241, 03243] | $2,400.

K. Licenses issued under subpart B of part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require sealed source and/or device review to persons generally licensed under part 31 of this chapter. This category does not include specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under part 31 of this chapter. Application [Program Code(s): 03242, 03244] | $1,400.

L. Licenses of broad scope for possession and use of byproduct material issued under parts 30 and 33 of this chapter for research and development that do not authorize commercial distribution. Number of locations of use: 1-5. Application [Program Code(s): 01100, 01110, 01120, 03610, 03611, 03612, 03613] | $6,600.

(1) Licenses of broad scope for possession and use of byproduct material issued under parts 30 and 33 of this chapter for research and development that do not authorize commercial distribution. Number of locations of use: 6-20. Application [Program Code(s): 04610, 04612, 04614, 04616, 04618, 04620, 04622] | $8,800.

(2) Licenses of broad scope for possession and use of byproduct material issued under parts 30 and 33 of this chapter for research and development that do not authorize commercial distribution. Number of locations of use: more than 20. Application [Program Code(s): 04611, 04613, 04615, 04617, 04619, 04621, 04623] | $11,000.

M. Other licenses for possession and use of byproduct material issued under part 30 of this chapter for research and development that do not authorize commercial distribution. Application [Program Code(s): 03620] | $10,000.

N. Licenses that authorize services for other licensees, except:

(1) Licenses that authorize only calibration and/or leak testing services are subject to the fees specified in fee category 3.P.; and | $10,800.

(2) Licenses that authorize waste disposal services are subject to the fees specified in fee categories 4.A., 4.B., and 4.C. 13 Application [Program Code(s): 03219, 03225, 03226].

O. Licenses for possession and use of byproduct material issued under part 34 of this chapter for industrial radiography operations. Number of locations of use: 1-5. Application [Program Code(s): 03310, 03320] | $12,300.

(1). Licenses for possession and use of byproduct material issued under part 34 of this chapter for industrial radiography operations. Number of locations of use: 6-20. Application [Program Code(s): 04310, 04312] | $16,300.

(2). Licenses for possession and use of byproduct material issued under part 34 of this chapter for industrial radiography operations. Number of locations of use: more than 20. Application [Program Code(s): 04311, 04313] | $20,400.

P. All other specific byproduct material licenses, except those in categories 4.A. through 9.D. 9 Number of locations of use: 1-5. Application [Program Code(s): 02400, 02410, 03120, 03121, 03122, 03123, 03124, 03130, 03140, 03220, 03221, 03222, 03800, 03810, 22130] | $8,200.

(1). All other specific byproduct material licenses, except those in categories 4.A. through 9.D. 9 Number of locations of use: 6-20. Application [Program Code(s): 04410, 04412, 04414, 04416, 04418, 04420, 04422, 04424, 04426, 04428, 04430, 04432, 04434, 04436, 04438] | $11,100.

(2). All other specific byproduct material licenses, except those in categories 4.A. through 9.D. 9 Number of locations of use: more than 20. Application [Program Code(s): 04411, 04413, 04415, 04417, 04419, 04421, 04423, 04425, 04427, 04429, 04431, 04433, 04435, 04437, 04439] | $13,900.

Q. Registration of a device(s) generally licensed under part 31 of this chapter

Registration | $900.

R. Possession of items or products containing radium-226 identified in § 31.12 of this chapter which exceed the number of items or limits specified in that section. 5

1. Possession of quantities exceeding the number of items or limits in § 31.12(a)(4) or (5) of this chapter but less than or equal to 10 times the number of items or limits specified. Application [Program Code(s): 02700] | $3,100.

2. Possession of quantities exceeding 10 times the number of items or limits specified in § 31.12(a)(4) or (5) of this chapter. Application [Program Code(s): 02710] | $3,000.

S. Licenses for production of accelerator-produced radionuclides. Application [Program Code(s): 03210] | $17,200.

4. Waste disposal and processing: 11

A. Licenses specifically authorizing the receipt of waste byproduct material, source material, or special nuclear material from other persons for the purpose of contingency storage or commercial land disposal by the licensee; or licenses authorizing contingency storage of low-level radioactive waste at the site of nuclear power reactors; or licenses for receipt of waste from other persons for incineration or other treatment, packaging of resulting waste and residues, and transfer of packages to another person authorized to receive or dispose of waste material. Application [Program Code(s): 03231, 03233, 03236, 06100, 06101] | Full Cost.

B. Licenses specifically authorizing the receipt of waste byproduct material, source material, or special nuclear material from other persons for the purpose of packaging or repackaging the material. The licensee will dispose of the material by transfer to another person authorized to receive or dispose of the material. Application [Program Code(s): 03234] | $8,400.

C. Licenses specifically authorizing the receipt of prepackaged waste byproduct material, source material, or special nuclear material from other persons. The licensee will dispose of the material by transfer to another person authorized to receive or dispose of the material. Application [Program Code(s): 03232] | $6,100.

5. Well logging: 11

A. Licenses for possession and use of byproduct material, source material, and/or special nuclear material for well logging, well surveys, and tracer studies other than field flooding tracer studies. Application [Program Code(s): 03110, 03111, 03112] | $5,600.

B. Licenses for possession and use of byproduct material for field flooding tracer studies. Licensing [Program Code(s): 03113] | Full Cost.

6. Nuclear laundries: 11

A. Licenses for commercial collection and laundry of items contaminated with byproduct material, source material, or special nuclear material. Application [Program Code(s): 03218] | $26,800.

7. Medical licenses:“ 11

A. Licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, or special nuclear material in sealed sources contained in gamma stereotactic radiosurgery units, teletherapy devices, or similar beam therapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license. Number of locations of use: 1-5. Application [Program Code(s): 02300, 02310] | $13,500.

(1). Licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, or special nuclear material in sealed sources contained in gamma stereotactic radiosurgery units, teletherapy devices, or similar beam therapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license. Number of locations of use: 6-20. Application [Program Code(s): 04510, 04512] | $17,900.

(2). Licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, or special nuclear material in sealed sources contained in gamma stereotactic radiosurgery units, teletherapy devices, or similar beam therapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license. Number of locations of use: more than 20. Application [Program Code(s): 04511, 04513] | $22,400.

B. Licenses of broad scope issued to medical institutions or two or more physicians under parts 30, 33, 35, 40, and 70 of this chapter authorizing research and development, including human use of byproduct material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license. Number of locations of use: 1-5. Application [Program Code(s): 02110] | $10,500.

(1). Licenses of broad scope issued to medical institutions or two or more physicians under parts 30, 33, 35, 40, and 70 of this chapter authorizing research and development, including human use of byproduct material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license. Number of locations of use: 6-20. Application [Program Code(s): 04710] | $14,000.

(2). Licenses of broad scope issued to medical institutions or two or more physicians under parts 30, 33, 35, 40, and 70 of this chapter authorizing research and development, including human use of byproduct material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license. Number of locations of use: more than 20. Application [Program Code(s): 04711] | $17,400.

C. Other licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, and/or special nuclear material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license. 10 Number of locations of use: 1-5. Application [Program Code(s): 02120, 02121, 02200, 02201, 02210, 02220, 02230, 02231, 02240, 22160] | $10,400.

(1). Other licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, and/or special nuclear material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license. 10 Number of locations of use: 6-20. Application [Program Code(s): 04810, 04812, 04814, 04816, 04818, 04820, 04822, 04824, 04826, 04828] | $15,300.

(2). Other licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, and/or special nuclear material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license. 10 Number of locations of use: more than 20. Application [Program Code(s): 04811, 04813, 04815, 04817, 04819, 04821, 04823, 04825, 04827, 04829] | $19,100.

8. Civil defense: 11

A. Licenses for possession and use of byproduct material, source material, or special nuclear material for civil defense activities. Application [Program Code(s): 03710] | $3,100.

9. Device, product, or sealed source safety evaluation:

A. Safety evaluation of devices or products containing byproduct material, source material, or special nuclear material, except reactor fuel devices, for commercial distribution. Application—each device | $21,000.

B. Safety evaluation of devices or products containing byproduct material, source material, or special nuclear material manufactured in accordance with the unique specifications of, and for use by, a single applicant, except reactor fuel devices. Application—each device | $10,900.

C. Safety evaluation of sealed sources containing byproduct material, source material, or special nuclear material, except reactor fuel, for commercial distribution. Application—each source | $6,400.

D. Safety evaluation of sealed sources containing byproduct material, source material, or special nuclear material, manufactured in accordance with the unique specifications of, and for use by, a single applicant, except reactor fuel. Application—each source | $1,300.

10. Transportation of radioactive material:

A. Evaluation of casks, packages, and shipping containers.

1. Spent Fuel, High-Level Waste, and plutonium air packages | Full Cost.

2. Other Casks | Full Cost.

B. Quality assurance program approvals issued under part 71 of this chapter.

1. Users and Fabricators.

Application | $4,700.

Inspections | Full Cost.

2. Users

Application | $4,700.

Inspections | Full Cost.

C. Evaluation of security plans, route approvals, route surveys, and transportation security devices (including immobilization devices) | Full Cost.

11. Review of standardized spent fuel facilities | Full Cost.

12. Special projects:

Including approvals, pre-application/licensing activities, and inspections. Application [Program Code: 25110] | Full Cost.

13. A. Spent fuel storage cask Certificate of Compliance | Full Cost.

B. Inspections related to storage of spent fuel under § 72.210 of this chapter | Full Cost.

14. Decommissioning/Reclamation 11

A. Byproduct, source, or special nuclear material licenses and other approvals authorizing decommissioning, decontamination, reclamation, or site restoration activities under parts 30, 40, 70, 72, and 76 of this chapter, including master materials licenses (MMLs). The transition to this fee category occurs when a licensee has permanently ceased principal activities. [Program Code(s): 03900, 11900, 21135, 21215, 21325, 22200] | Full Cost.

B. Site-specific decommissioning activities associated with unlicensed sites, including MMLs, regardless of whether or not the sites have been previously licensed | Full Cost.

15. Import and Export licenses: 12

Licenses issued under part 110 of this chapter for the import and export only of special nuclear material, source material, tritium and other byproduct material, and the export only of heavy water, or nuclear grade graphite (fee categories 15.A. through 15.E.)

A. Application for export or import of nuclear materials, including radioactive waste requiring Commission and Executive Branch review, for example, those actions under § 110.40(b) of this chapter. Application—new license, or amendment; or license exemption request | N/A.

B. Application for export or import of nuclear material, including radioactive waste, requiring Executive Branch review, but not Commission review. This category includes applications for the export and import of radioactive waste and requires the NRC to consult with domestic host state authorities (i.e., Low-Level Radioactive Waste Compact Commission, the U.S. Environmental Protection Agency, etc.). Application—new license, or amendment; or license exemption request | N/A.

C. Application for export of nuclear material, for example, routine reloads of low enriched uranium reactor fuel and/or natural uranium source material requiring the assistance of the Executive Branch to obtain foreign government assurances. Application—new license, or amendment; or license exemption request | N/A.

D. Application for export or import of nuclear material not requiring Commission or Executive Branch review or obtaining foreign government assurances. Application—new license, or amendment; or license exemption request | N/A.

E. Minor amendment of any active export or import license, for example, to extend the expiration date, change domestic information, or make other revisions which do not involve any substantive changes to license terms and conditions or to the type/quantity/chemical composition of the material authorized for export and, therefore, do not require in-depth analysis, review, or consultations with other Executive Branch, U.S. host state, or foreign government authorities. Minor amendment | N/A.

Licenses issued under part 110 of this chapter for the import and export only of Category 1 and Category 2 quantities of radioactive material listed in appendix P to part 110 of this chapter (fee categories 15.F. through 15.R.). Category 1 (Appendix P, 10 CFR part 110) Exports:

F. Application for export of appendix P Category 1 materials requiring Commission review (e.g., exceptional circumstance review under § 110.42(e)(4) of this chapter) and to obtain one government-to-government consent for this process. For additional consent see fee category 15.I. Application—new license, or amendment; or license exemption request | N/A.

G. Application for export of appendix P Category 1 materials requiring Executive Branch review and to obtain one government-to-government consent for this process. For additional consents see fee category 15.I. Application—new license, or amendment; or license exemption request | N/A.

H. Application for export of appendix P Category 1 materials and to obtain one government-to-government consent for this process. For additional consents see fee category 15.I. Application—new license, or amendment; or license exemption request | N/A.

I. Requests for each additional government-to-government consent in support of an export license application or active export license. Application—new license, or amendment; or license exemption request | N/A.

Category 2 (Appendix P, 10 CFR part 110) Exports:

J. Application for export of appendix P Category 2 materials requiring Commission review (e.g., exceptional circumstance review under § 110.42(e)(4) of this chapter). Application—new license, or amendment; or license exemption request | N/A.

K. Applications for export of appendix P Category 2 materials requiring Executive Branch review. Application—new license, or amendment; or license exemption request | N/A.

L. Application for the export of Category 2 materials. Application—new license, or amendment; or license exemption request | N/A.

M. [Reserved] | N/A.

N. [Reserved] | N/A.

O. [Reserved] | N/A.

P. [Reserved] | N/A.

Q. [Reserved] | N/A.

Minor Amendments (Category 1 and 2, appendix P, 10 CFR part 110, Export):

R. Minor amendment of any active export license, for example, to extend the expiration date, change domestic information, or make other revisions which do not involve any substantive changes to license terms and conditions or to the type/quantity/chemical composition of the material authorized for export and, therefore, do not require in-depth analysis, review, or consultations with other Executive Branch, U.S. host state, or foreign authorities.

Minor amendment | N/A.

16. Reciprocity:

Agreement State licensees who conduct activities under the reciprocity provisions of § 150.20 of this chapter.

Application | $3,800.

17. MMLs of broad scope issued to Government agencies. Application [Program Code(s): 03614] | Full Cost.

18. Department of Energy.

A. Certificates of Compliance. Evaluation of casks, packages, and shipping containers (including spent fuel, high-level waste, and other casks, and plutonium air packages) | Full Cost.

B. Uranium Mill Tailings Radiation Control Act (UMTRCA) activities | Full Cost.

1 Types of fees—Separate charges, as shown in the schedule, will be assessed for pre-application consultations and reviews; applications for new licenses, approvals, or license terminations; possession-only licenses; issuances of new licenses and approvals; certain amendments and renewals to existing licenses and approvals; safety evaluations of sealed sources and devices; generally licensed device registrations; and certain inspections. The following guidelines apply to these charges:

(1) Application and registration fees. Applications for new materials licenses and export and import licenses; applications to reinstate expired, terminated, or inactive licenses, except those subject to fees assessed at full costs; applications filed by Agreement State licensees to register under the general license provisions of 10 CFR 150.20; and applications for amendments to materials licenses that would place the license in a higher fee category or add a new fee category must be accompanied by the prescribed application fee for each category.

(i) Applications for licenses covering more than one fee category of special nuclear material or source material must be accompanied by the prescribed application fee for the highest fee category.

(ii) Applications for new licenses that cover both byproduct material and special nuclear material in sealed sources for use in gauging devices will pay the appropriate application fee for fee category 1.C. only.

(2) Licensing fees. Fees for reviews of applications for new licenses, renewals, and amendments to existing licenses, pre-application consultations and other documents submitted to the NRC for review, and project manager time for fee categories subject to full cost fees are due upon notification by the Commission in accordance with § 170.12(b).

(3) Amendment fees. Applications for amendments to export and import licenses must be accompanied by the prescribed amendment fee for each license affected. An application for an amendment to an export or import license or approval classified in more than one fee category must be accompanied by the prescribed amendment fee for the category affected by the amendment, unless the amendment is applicable to two or more fee categories, in which case the amendment fee for the highest fee category would apply.

(4) Inspection fees. Inspections resulting from investigations conducted by the Office of Investigations and nonroutine inspections that result from third-party allegations are not subject to fees. Inspection fees are due upon notification by the Commission in accordance with § 170.12(c).

(5) Generally licensed device registrations under 10 CFR 31.5. Submittals of registration information must be accompanied by the prescribed fee.

2 Fees will be charged for approvals issued under a specific exemption provision of the Commission's regulations under title 10 of the Code of Federal Regulations (e.g., 10 CFR 30.11, 40.14, 70.14, 73.5, and any other sections in effect now or in the future), regardless of whether the approval is in the form of a license amendment, letter of approval, safety evaluation report, or other form. In addition to the fee shown, an applicant may be assessed an additional fee for sealed source and device evaluations as shown in fee categories 9.A. through 9.D.

3 Full cost fees will be determined based on the professional staff time multiplied by the appropriate professional hourly rate established in § 170.20 in effect when the service is provided, and the appropriate contractual support services expended.

4 Licensees paying fees under categories 1.A., 1.B., and 1.E. are not subject to fees under categories 1.C., 1.D., and 1.F. for sealed sources authorized in the same license, except for an application that deals only with the sealed sources authorized by the license.

5 Persons who possess radium sources that are used for operational purposes in another fee category are not also subject to the fees in this category. (This exception does not apply if the radium sources are possessed for storage only.)

6 Licensees subject to fees under fee categories 1.A., 1.B., 1.E., or 2.A. must pay the largest applicable fee and are not subject to additional fees listed in this table.

7 Licensees paying fees under 3.C., 3.C.1, or 3.C.2 are not subject to fees under 2.B. for possession and shielding authorized on the same license.

8 Licensees paying fees under 7.C. are not subject to fees under 2.B. for possession and shielding authorized on the same license.

9 Licensees paying fees under 3.N. are not subject to paying fees under 3.P., 3.P.1, or 3.P.2 for calibration or leak testing services authorized on the same license.

10 Licensees paying fees under 7.B., 7.B.1, or 7.B.2 are not subject to paying fees under 7.C., 7.C.1, or 7.C.2. for broad scope licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, and/or special nuclear material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices authorized on the same license.

11 A materials license (or part of a materials license) that transitions to fee category 14.A is assessed full cost fees under this part but is not assessed an annual fee under 10 CFR part 171. If only part of a materials license is transitioned to fee category 14.A, the licensee may be charged annual fees (and any applicable fees under this part) for other activities authorized under the license that are not in decommissioning status.

12 Because section 101 of the ADVANCE Act created an excluded activity for international nuclear export and innovation activities, import and export licensing actions will not incur fees.

13 Licensees paying fees under 4.A., 4.B., or 4.C. are not subject to paying fees under 3.N. licenses that authorize services for other licensees authorized on the same license.

[71 FR 30747, July 31, 2006, as amended at 75 FR 34235, June 16, 2010; 76 FR 36797, June 22, 2011; 76 FR 72087, Nov. 22, 2011; 77 FR 35827, June 13, 2012; 78 FR 32341, May 29, 2013; 78 FR 39428, July 1, 2013; 78 FR 54959, Sept. 9, 2013; 79 FR 37145, June 30, 2014; 79 FR 51471, Aug. 29, 2014; 80 FR 37455, June 30, 2015; 81 FR 41186, June 24, 2016; 82 FR 30699, June 30, 2017; 83 FR 29646, June 25, 2018; 84 FR 22350, May 17, 2019; 85 FR 37271, June 19, 2020; 86 FR 32171, June 16, 2021; 87 FR 37215, June 22, 2022; 88 FR 39140, June 15, 2023; 89 FR 51811, June 20, 2024; 90 FR 26754, June 24, 2025; 91 FR 36496, June 16, 2026]

§ 170.32 Schedule of fees for health and safety, and safeguards inspections for materials licenses.

Materials licensees shall pay inspection fees as set forth in § 170.31.

[53 FR 52652, Dec. 29, 1988]

§ 170.33 Executive Order 14300 fixed fee caps.

(a) Fees under §§ 170.21 and 170.31 will not exceed the Executive Order 14300 fixed fee cap, except as provided in paragraph (e) of this section. The activities for which the Executive Order 14300 fixed fee cap applies are only requested activities of the Commission that involve the issuance of a final safety evaluation, consistent with the Nuclear Energy Innovation and Modernization Act (42 U.S.C. 2215 note) and section 5(a) of Executive Order 14300.

(b) For requested activities for which a complete application has been accepted for review by the Commission on or after October 1, 2026, the Executive Order 14300 fixed fee cap is the lesser of:

(1) The amount associated with the requested activity in table 1 to this section, in effect when a complete application for the requested activity has been accepted for review by the Commission; or

(2) An amount that is lower, to the maximum extent practicable, than the amount in table 1 to this section and is determined by the Commission based on the specific application for the requested activity.

(c) For requested activities for which a complete application has been accepted for review by the Commission before October 1, 2026, the Executive Order 14300 fixed fee cap is the lowest practicable amount determined by the Commission based on the specific application for the requested activity.

(d) The Commission will communicate the Executive Order 14300 fixed fee cap in the NRC written communication on schedule and resources for the requested activity.

(e) The Executive Order 14300 fixed fee cap will not be increased except in instances of applicant failure. If applicant failure applies, the Commission will provide a written communication informing the applicant of the new Executive Order 14300 fixed fee cap that applies to the requested activity. The new Executive Order 14300 fixed fee cap will be the lowest practicable amount determined by the Commission to account for the applicant failure.

(f) Consistent with § 170.51, any disputes associated with the Executive Order 14300 fixed fee cap must be submitted in accordance with § 15.31 of this chapter.

Table 1 to § 170.33—Fixed Caps on Service Fees

Activity | Type | Fixed caps on service fees 1 (rounded) | Fixed caps on service fees for advanced nuclear reactor applicants 2 (rounded)

Standard Design Approvals | Standard Design Approval (SDA) with no prior approvals—10 CFR part 52 or 53 | $32,656,000 | $16,552,000

SDA referencing an approved Design Certification (DC) or SDA—10 CFR part 52 or 53 | 16,165,000 | 7,930,000

Design Certifications (including incorporation of approved design into 10 CFR part 52) | DC with no prior approvals—10 CFR parts 52 or 53 | 33,566,000 | 16,968,000

DC referencing an approved DC or SDA—10 CFR part 52 or 53 | 16,825,000 | 8,096,000

Licenses | Combined License (COL) with no prior approvals—10 CFR part 52 or 53 | 30,145,000 | 14,590,000

COL referencing only an approved DC—10 CFR part 52 or 53 | 21,046,000 | 10,432,000

COL referencing only an Early Site Permit—10 CFR part 52 or 53 | 24,079,000 | 11,818,000

COL referencing an Early Site Permit and an approved DC—10 CFR part 52 or 53 | 14,980,000 | 7,660,000

Operating License—10 CFR parts50 or 53 | 21,720,000 | 10,740,000

Manufacturing License—10 CFR part 52 or 53 | 32,656,000 | 16,552,000

Fuel Cycle Facilities—10 CFR parts 40 and 70 | 7,903,000 | N/A

Uranium Recovery—10 CFR part 40 | 3,574,000 | N/A

Construction Permits | All Facilities—10 CFR part 50 or 53 | 18,334,000 | 10,007,000

Early Site Permits | All Facilities—10 CFR part 52 or 53 | 8,066,000 | 4,772,000

Limited Work Authorizations | All Facilities—10 CFR part 50 or 53 | 2,615,000 | 1,847,000

License Amendments (including power uprates) and DC Amendments | Decommissioning—10 CFR parts 30, 40, 50, and 70 | 1,078,000 | N/A

Uranium Recovery—10 CFR part 40 | Expansions (e.g., new site) | 1,664,000 | N/A

All Others | 465,000 | N/A

Fuel Cycle Facilities—10 CFR parts 40 and 70 | 1,394,000 | N/A

Operating—10 CFR parts 50, 52, and 53 | Adopting a Technical Specifications Task Force (TSTF) traveler using the Consolidated Line-Item Improvement Process | 59,000 | N/A

All Other TSTF travelers | 824,000 | N/A

Measurement Uncertainty Recapture Uprate (MUR) (non-bundled) 3 | 412,000 | N/A

Stretch Power Uprate (SPU) (non-bundled) | 774,000 | N/A

SPU bundled with other related changes 4 | 1,111,000 | N/A

Extended Power Uprate (EPU) (non-bundled) | 1,835,000 | N/A

EPU bundled with other related changes | 2,846,000 | N/A

Emergency and Exigent | 185,000 | N/A

All Others | 2,185,000 | N/A

Construction Permit—10 CFR parts 50 and 53 | 707,000 | N/A

Early Site Permit—10 CFR parts 52 and 53 | 707,000 | N/A

DC—10 CFR parts 52 and 53 | 9,061,000 | N/A

COL (under construction)—10 CFR parts 52 and 53 | 707,000 | N/A

COL (construction not commenced)—10 CFR parts 52 and 53 | 707,000 | N/A

Restart Activities | All Facilities—10 CFR part 50 | 3,109,000 | N/A

License Renewals | All Facilities—10 CFR parts 50, 52, 53, and 54 | 5,418,000 | N/A

Fuel Cycle Facilities—10 CFR parts 40 and 70 | 1,461,000 | N/A

Uranium Recovery—10 CFR part 40 | 1,333,000 | N/A

New | 636,000 | N/A

Certificates of Compliance (CoC) | Transportation—10 CFR part 71 | Amendment | 529,000 | N/A

Renewal | 3,000 | N/A

Storage—10 CFR part 72 | New | 742,000 | N/A

Amendment or Renewal | 901,000 | N/A

Topical Reports 5 | All Facilities—10 CFR parts 50, 52, and 53 | 3,196,000 | N/A

Independent Spent Fuel Storage Installation (ISFSI) | Storage—10 CFR parts 50, 52, 53, and 72 | New Amendment or Renewal | 6,888,000 514,000 | N/A N/A

Exemptions | All Parts of 10 CFR | 336,000 | N/A

Code Reliefs | COL (under construction)—10 CFR parts 52 and 53 | 770,000 | N/A

All Other Facilities—10 CFR parts 50, 52, and 53 | 403,000 | N/A

License Transfers | All Materials—10 CFR parts 30, 40, 70, and 72 | 169,000 | N/A

All Facilities—10 CFR parts 50, 52, and 53 | 336,000 | N/A

1 The fixed caps on service fees include professional staff hours multiplied by the appropriate professional hourly rate established in § 170.20(a), and contractual support services.

2 The fixed caps on service fees for advanced nuclear reactor applicants include professional staff hours multiplied by the reduced hourly rate for advanced nuclear reactor applicants established in § 170.20(b), and contractual support services.

3 The term “non-bundled,” as used in this table 1, refers to a license amendment request that includes a power uprate request and requests NRC approval for changes with a scope similar to requests approved by the Commission as of August 14, 2017.

4 The term “bundled,” as used in this table 1, refers to a license amendment request that includes a power uprate request and requests NRC approval for changes that exceed the scope of requests approved by the Commission as of August 14, 2017, such as Maximum Extended Load Line Limit Analysis Plus; cycle extensions; fuel transitions, including accident tolerant fuel, and increased enrichment and high burnup fuel; and new accident and source term methodologies.

5 Consistent with the definition of requested activity of the Commission in section 3 of the Nuclear Energy Innovation and Modernization Act (42 U.S.C. 2215 note), this activity includes only topical reports submitted by licensees or applicants (i.e., persons or entities that either hold a current license or have a license application under NRC review).

[91 FR 36501, June 16, 2026]

§ 170.41 Failure by an applicant or licensee to pay prescribed fees.

If the Commission determines that an applicant or a licensee has failed to pay a prescribed fee required in this part, the Commission will not process any application and may suspend or revoke any license or approval issued to the applicant or licensee. The Commission may issue an order with respect to licensed activities that the Commission determines to be appropriate or necessary to carry out the provisions of this part, parts 30, 31, 32 through 35, 40, 50, 53, 61, 70, 71, 72, 73, and 76 of this chapter, and of the Act.

[91 FR 15880, Mar. 30, 2026]

§ 170.51 Right to dispute assessed fees.

All debtors' disputes of fees assessed must be submitted in accordance with 10 CFR 15.31.

[86 FR 32176, June 16, 2021]

§ 171.1 Purpose.

The regulations in this part set out the annual fees charged to persons who hold licenses, Certificates of Compliance, sealed source and device registrations, and quality assurance program approvals issued by the United States Nuclear Regulatory Commission, including licenses, registrations, approvals, and certificates issued to a Government agency.

[56 FR 31504, July 10, 1991]

§ 171.3 Scope.

The regulations in this part apply to any person holding an operating license for a test reactor or research reactor issued under part 50 of this chapter, and to any person holding an operating license for a power reactor licensed under 10 CFR part 50 or part 53, or a combined license issued under 10 CFR part 52 or part 53, that has provided notification to the U.S. Nuclear Regulatory Commission (NRC) that the licensee has successfully completed power ascension testing. The regulations in this part also apply to any person holding a materials license as defined in this part, a Certificate of Compliance, a sealed source or device registration, a quality assurance program approval, and to a Government agency as defined in this part. Notwithstanding the other provisions in this section, the regulations in this part do not apply to uranium recovery and fuel facility licensees until after the Commission verifies through inspection that the facility has been constructed in accordance with the requirements of the license.

[91 FR 15880, Mar. 30, 2026]

§ 171.5 Definitions.

Budget means the funds appropriated by Congress for the NRC for each fiscal year, and if that appropriation is not passed on or before September 1 for that fiscal year, the funds most recently appropriated by Congress for the most recent fiscal year.

Budget authority means the authority, in the form of an appropriation, provided by law and becoming available during the year, to enter into obligations that will result in immediate or future outlays involving Federal Government funds. The appropriation is an authorization by an Act of Congress that permits the NRC to incur obligations and to make payments out of the Treasury for specified purposes. Fees assessed pursuant to Public Law 115-439 are based on the NRC's budget authority.

Bundled unit means multiple SMRs on a single site that are considered a single unit for the purpose of assessing an annual fee. A bundled unit is assessed an annual fee based on the cumulative licensed thermal power rating of all licensed SMRs on the same site. The maximum capacity of a bundled unit is a cumulative licensed thermal power rating of 4,500 MWt. A single SMR can be part of two bundled units if it completes the capacity of one unit and begins the capacity of an additional unit. For a given site, the use of the bundled unit concept is independent of the number of SMR plants, the number of SMR licenses issued, or the sequencing of the SMR licenses that have been issued. Bundled units with capacities greater than 2,000 MWt and less than or equal to 4,500 MWt are assessed a maximum fee that is equivalent to the annual fee paid by the current reactor fleet. Above 4,500 MWt establishes an additional bundled unit.

Byproduct material means—

(1) Any radioactive material (except special nuclear material) yielded in, or made radioactive by, exposure to the radiation incident to the process of producing or using special nuclear material;

(2)(i) Any discrete source of radium-226 that is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity; or

(ii) Any material that—

(A) Has been made radioactive by use of a particle accelerator; and

(B) Is produced, extracted, or converted after extraction, before, on, or after August 8, 2005, for use for a commercial, medical, or research activity; and

(3) Any discrete source of naturally occurring radioactive material, other than source material, that—

(i) The Commission, in consultation with the Administrator of the Environmental Protection Agency, the Secretary of Energy, the Secretary of Homeland Security, and the head of any other appropriate Federal agency, determines would pose a threat similar to the threat posed by a discrete source of radium-226 to the public health and safety or the common defense and security; and

(ii) Before, on, or after August 8, 2005, is extracted or converted after extraction for use in a commercial, medical, or research activity.

Certificate holder means a person who holds a certificate of compliance, or other package approval issued by the Commission.

Commission means the U.S. Nuclear Regulatory Commission or its duly authorized representatives.

Federal fiscal year means a year that begins on October 1 of each calendar year and ends on September 30 of the following calendar year. Federal fiscal years are identified by the year in which they end (e.g., fiscal year 1987 begins in 1986 and ends in 1987).

Government agency means any executive department, commission, independent establishment, corporation, wholly or partly owned by the United States of America which is an instrumentality of the United States, or any board, bureau, division, service, office, officer, authority, administration, or other establishment in the executive branch of the government.

Greater Than Class C Waste or GTCC Waste means low-level radioactive waste that exceeds the concentration limits of radionuclides established for Class C waste in 10 CFR 61.55.

High enriched uranium fuel means uranium enriched to 20 percent or greater in the isotope uranium-235.

Low enriched uranium fuel means uranium enriched below 20 percent in the isotope uranium-235.

Materials license means a license, certificate, approval, registration or other form of permission issued or granted by the NRC under the regulations in 10 CFR parts 30, 31 through 36, 39, 40, 61, 70, 71, 72, and 76.

Maximum fee is the highest fee paid by a single bundled unit. It is applied to all bundled units on an SMR site with a licensed thermal power rating greater than 2,000 MWt and less than or equal to 4,500 MWt and is equal to the flat annual fee paid by existing fleet power reactors.

Minimum fee means the lowest annual fee assessed for an SMR or a bundled unit in a thermal power rating fee assessment tier.

Non-power production or utilization facility means a production or utilization facility licensed under 10 CFR 50.21(a) or (c), or 10 CFR 50.22, as applicable, that is not a nuclear power reactor or production facility as defined under paragraphs (1) and (2) of the definition of “production facility” in 10 CFR 50.2.

Nonprofit educational institution means a public or nonprofit educational institution whose primary function is education, whose programs are accredited by a nationally recognized accrediting agency or association, who is legally authorized to provide a program of organized instruction or study, who provides an educational program for which it awards academic degrees, and whose educational programs are available to the public.

Nuclear reactor means an apparatus, other than an atomic weapon, used to sustain fission in a self-supporting chain reaction.

Operating license means having a license issued under § 50.57 or § 53.1387 of this chapter. It does not include licenses that only authorize possession of special nuclear material after the Commission has received a request from the licensee to amend its licensee to permanently withdraw its authority to operate or the Commission has permanently revoked such authority.

Person means:

(1) Any individual, corporation, partnership, firm, association, trust, estate, public or private institution, group, Government agency other than the Commission; any state or any political subdivision of, or any political entity within, a state; any foreign Government or nation or any political subdivision of any such government or nation; or other entity; and

(2) Any legal successor, representative, agent, or agency of the foregoing.

Power reactor means a nuclear reactor designed to produce electrical or heat energy and licensed by the Commission under the authority of section 103 or subsection 104b of the Atomic Energy Act of 1954, as amended, and under the provisions of § 50.21(b) or § 50.22, or part 53 of this chapter.

Quality assurance program approval is the document issued by the NRC to approve the quality assurance program submitted to the NRC as meeting the requirements of § 71.101 of this chapter. Activities covered by the quality assurance program may be divided into two major groups: those activities including design, fabrication and use of packaging and those activities for use only of packaging.

Registration holder as used in this part means any manufacturer or initial distributor of a sealed source or device containing a sealed source that holds a certificate of registration issued by the NRC or a holder of a registration for a sealed source or device manufactured in accordance with the unique specifications of, and for use by, a single applicant.

Research reactor is defined at 10 CFR 170.3.

Small modular reactor (SMR) for the purposes of calculating fees means the class of power reactors having a licensed thermal power rating less than or equal to 1,000 MWt per module. This rating is based on the thermal power equivalent of an SMR with an electrical power generating capacity of 300 MWe or less per module.

Small modular reactor site (SMR site) is the geographically bounded location of one or more SMRs and a basis on which SMR fees are calculated.

Source material means:

(1) Uranium or thorium, or any combination thereof, in any physical or chemical form; or

(2) Ores which contain by weight one-twentieth of one percent (0.05%) or more of

(i) Uranium,

(ii) Thorium, or

(iii) Any combination thereof.

Source material does not include special nuclear material.

Special nuclear material means:

(1) Plutonium, uranium-233, uranium enriched in the isotope 233 or in the isotope 235, and any other material which the Commission, pursuant to the provisions of section 51 of the Atomic Energy Act of 1954, as amended, determines to be special nuclear material, but does not include source material; or

(2) Any material artificially enriched by any of the foregoing, but does not include source material.

Testing facility is defined at 10 CFR 50.2.

Variable fee means an annual fee component that is added to the minimum fee. The variable fee is designed to gradually increase as licensed thermal power capacity is added within the bundled unit fee assessment tier. The variable fee is calculated as the product of the incremental increase in the thermal power rating multiplied by the variable rate.

Variable rate means the factor used to calculate the variable fee component of the annual fee. To determine the total annual fee, the incremental increase in the licensed thermal power rating within the fee assessment tier is multiplied by the variable rate resulting in a variable fee that is added to the minimum fee. There is a different factor for each SMR or bundled unit fee assessment tier. Each factor represents the difference between the lower licensed thermal power rating within each tier and the actual thermal power rating for the unit or site.

[51 FR 33230, Sept. 18, 1986, as amended at 53 FR 52652, Dec. 29, 1988; 56 FR 31505, July 10, 1991; 57 FR 32714, July 23, 1992; 58 FR 38695, July 20, 1993; 65 FR 36964, June 12, 2000; 66 FR 32474, June 14, 2001; 67 FR 42634, June 24, 2002; 71 FR 30752, May 30, 2006; 72 FR 35936, Oct. 1, 2007; 81 FR 32627, May 24, 2016; 81 FR 45964, July 15, 2016; 83 FR 29652, June 25, 2018; 86 FR 32177, June 16, 2021; 88 FR 39145, June 15, 2023; 89 FR 106253, Dec. 30, 2024; 91 FR 15880, Mar. 30, 2026]

§ 171.7 Interpretations.

Except as specifically authorized by the Commission in writing, no interpretation of the regulations in this part by an officer or employee of the Commission, other than a written interpretation by the General Counsel, will be recognized as binding on the Commission. This section shall cease to have effect on January 8, 2027, unless the NRC determines that the cessation deadline should be extended to a date not more than 5 years in the future after offering the public an opportunity to provide input on the costs and benefits of this section and considering that input. The NRC will publish a document in the Federal Register announcing its determination and revising or removing this section accordingly.

[51 FR 33230, Sept. 18, 1986, as amended at 90 FR 55634, Dec. 3, 2025]

§ 171.8 Information collection requirements: OMB approval

This part contains no information collection requirements and therefore is not subject to the requirements of the Paperwork Reduction Act (44 U.S.C. 3501 et seq.).

[62 FR 52191, Oct. 6, 1997]

§ 171.9 Communications.

All communications concerning the regulations in this part should be addressed to the NRC's Chief Financial Officer, either by mail to the U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001; by hand delivery to the NRC's offices at 11555 Rockville Pike, Rockville, Maryland; or, where practicable, by electronic submission, for example, via Electronic Information Exchange, or CD-ROM. Electronic submissions must be made in a manner that enables the NRC to receive, read, authenticate, distribute, and archive the submission, and process and retrieve it a single page at a time. Detailed guidance on making electronic submissions can be obtained by visiting the NRC's Web site at http://www.nrc.gov/site-help/e-submittals.html; by e-mail to MSHD.Resource@nrc.gov; or by writing the Office of the Chief Information Officer, U.S. Nuclear Regulatory Commission, Washington, DC 20555-0001. The guidance discusses, among other topics, the formats the NRC can accept, the use of electronic signatures, and the treatment of nonpublic information.

[68 FR 58826, Oct. 10, 2003, as amended at 74 FR 62687, Dec. 1, 2009; 80 FR 74982, Dec. 1, 2015]

§ 171.11 Exemptions.

(a) All requests for exemptions must be filed with the NRC within 90 days from the effective date of the final rule establishing the annual fees for which the exemption is sought in order to be considered. Absent extraordinary circumstances, any exemption requests filed beyond that date will not be considered. The filing of an exemption request does not extend the date on which the bill is payable. Only timely payment in full ensures avoidance of interest and penalty charges. If a partial or full exemption is granted, any overpayment will be refunded. Requests for clarification of or questions relating to an annual fee bill must also be filed within 90 days from the date of the initial invoice to be considered.

(b) An annual fee is not required for:

(1) A construction permit or license applied for by, or issued to, a nonprofit educational institution for a production or utilization facility, other than a power reactor, or for the possession and use of byproduct material, source material, or special nuclear material. This exemption does not apply to those byproduct, source, or special nuclear material licenses which authorize:

(i) Human use;

(ii) Remunerated services to other persons;

(iii) Distribution of byproduct material, source material, or special nuclear material or products containing byproduct material, source material, or special nuclear material; or

(iv) Activities performed under a Government contract.

(2) Federally-owned and State-owned research reactors used primarily for educational training and academic research purposes. For purposes of this exemption, the term research reactor means a nuclear reactor that—

(i) Is licensed by the Nuclear Regulatory Commission under section 104c. of the Atomic Energy Act of 1954 (42 U.S.C. 2134(c)) for operation at a thermal power level of 10 megawatts or less; and

(ii) If so licensed for operation at a thermal power level of more than 1 megawatt, does not contain—

(A) A circulating loop through the core in which the licensee conducts fuel experiments;

(B) A liquid fuel loading; or

(C) An experimental facility in the core in excess of 16 square inches in cross-section.

(c) The Commission may, upon application by an interested person or on its own initiative, grant an exemption from the requirements of this part that it determines is authorized by law and otherwise in the public interest.

(d) An exemption for reactors licensed to operate may be granted by the Commission taking into consideration each of the following factors:

(1) Age of the reactor;

(2) Number of customers in rate base;

(3) Net increase in KWh cost for each customer directly related to the annual fee assessed under this part; and

(4) Any other relevant matter which the licensee believes justifies the reduction of the annual fee.

(e) The Commission may grant a materials licensee an exemption from the annual fee if it determines that the annual fee is not based on a fair and equitable allocation of the NRC costs. The following factors must be fulfilled as determined by the Commission for an exemption to be granted:

(1) There are data specifically indicating that the assessment of the annual fee will result in a significantly disproportionate allocation of costs to the licensee, or class of licensees; or

(2) There is clear and convincing evidence that the budgeted generic costs attributable to the class of licensees are neither directly or indirectly related to the specific class of licensee nor explicitly allocated to the licensee by Commission policy decisions; or

(3) Any other relevant matter that the licensee believes shows that the annual fee was not based on a fair and equitable allocation of NRC costs.

(f) All fee exemption requests must be submitted in writing to the Chief Financial Officer in accordance with § 171.9, and the Chief Financial Officer will grant or deny such requests in writing. Fee exemption requests submitted via email should be submitted to the NRC at cfofeeexemptionrequests.resource@nrc.gov.

[56 FR 31505, July 10, 1991, as amended at 57 FR 32714, July 23, 1992; 58 FR 38695, July 20, 1993; 59 FR 12543, Mar. 17, 1994; 59 FR 36924, July 20, 1994; 67 FR 42634, June 24, 2002; 70 FR 30548, May 29, 2005; 79 FR 37150, June 30, 2014; 86 FR 32177, June 16, 2021; 91 FR 36503, June 16, 2026]

§ 171.13 Notice.

The annual fees applicable to any NRC licensee subject to this part and calculated in accordance with §§ 171.15 and 171.16, will be published as a notice in the Federal Register as soon as possible but no later than the third quarter of the fiscal year. The annual fees will become due and payable to the NRC as indicated in § 171.19. Quarterly payments of the annual fee of $100,000 or more will continue during the fiscal year and be based on the applicable annual fees as shown in §§ 171.15 and 171.16 until a notice concerning the revised amount of the fees for the fiscal year is published by the NRC. If the NRC is unable to publish a final fee rule that becomes effective during the current fiscal year, fees would be assessed based on the rates in effect for the previous fiscal year.

[64 FR 31475, June 10, 1999]

§ 171.15 Annual fees: Non-power production or utilization licenses, reactor licenses, and independent spent fuel storage licenses.

(a) Each person holding an operating license for one or more non-power production or utilization facilities under 10 CFR part 50 that has provided notification to the NRC of the successful completion of startup testing; each person holding an operating license for a power reactor licensed under 10 CFR part 50 or a combined license under 10 CFR part 52, or an operating license or combined license for a commercial nuclear plant under 10 CFR part 53, that has provided notification to the NRC of the successful completion of power ascension testing; each person holding a 10 CFR part 50 or part 52, power reactor license, or a 10 CFR part 53 commercial nuclear plant license that is in decommissioning or possession only status, except those that have no spent fuel onsite; and each person holding a 10 CFR part 72 license who does not hold a 10 CFR part 50, part 52, or part 53 license and provides notification under § 72.80(g) of this chapter, shall pay the annual fee for each license held during the Federal fiscal year in which the fee is due. This paragraph (a) does not apply to test or research reactors exempted under § 171.11(b).

(b)(1) The FY 2026 annual fee for each operating power reactor that must be collected by September 30, 2026, is $5,554,000.

(2) The FY 2026 annual fees are comprised of a base annual fee for power reactors licensed to operate, a base spent fuel storage/reactor decommissioning annual fee and associated additional charges. The activities comprising the spent fuel storage/reactor decommissioning base annual fee are shown in paragraphs (c)(2)(i) and (ii) of this section. The activities comprising the FY 2026 base annual fee for operating power reactors are as follows:

(i) Power reactor safety and safeguards regulation except licensing and inspection activities recovered under part 170 of this chapter and generic reactor decommissioning activities.

(ii) Research activities directly related to the regulation of power reactors, except those activities specifically related to reactor decommissioning.

(iii) Generic activities required largely for NRC to regulate power reactors (e.g., updating part 50, part 52, or part 53 of this chapter, operating the Incident Response Center, new reactor regulatory infrastructure). The base annual fee for operating power reactors does not include generic activities specifically related to reactor decommissioning.

(c)(1) The FY 2026 annual fee for each power reactor holding a 10 CFR part 50 or 53 operating license or combined license issued under 10 CFR part 52 or 53 that is in a decommissioning or possession-only status and has spent fuel onsite, and for each independent spent fuel storage 10 CFR part 72 licensee who does not hold a 10 CFR part 50 or 53 operating license, or a 10 CFR part 52 or 53 combined license, is $325,000.

(2) The FY 2026 annual fee is comprised of a base spent fuel storage/reactor decommissioning annual fee (which is also included in the operating power reactor annual fee shown in paragraph (b) of this section). The activities comprising the FY 2026 spent fuel storage/reactor decommissioning rebaselined annual fee are:

(i) Generic and other research activities directly related to reactor decommissioning and spent fuel storage; and

(ii) Other safety, environmental, and safeguards activities related to reactor decommissioning and spent fuel storage, except costs for licensing and inspection activities that are recovered under part 170 of this chapter.

(d)(1) Each person holding an operating license for an SMR issued under 10 CFR part 50 or 53, or a combined license issued under 10 CFR part 52 or 53, that has provided notification to the NRC of the successful completion of startup testing, shall pay the annual fee for all licenses held for an SMR site. The annual fee will be determined using the cumulative licensed thermal power rating of all SMR units and the bundled unit concept, during the fiscal year in which the fee is due. Each fiscal year, the variable rate will be calculated based on October 1 of the fiscal year and updated, as appropriate, to determine the variable fee for the current fiscal year. For a given site, the use of the bundled unit concept is independent of the number of SMR plants, the number of SMR licenses issued, or the sequencing of the SMR licenses that have been issued.

(2) The annual fees for a small modular reactor(s) located on a single site to be collected by September 30 of each year, are as follows:

Table 1 to Paragraph (d)(2)

Bundled unit thermal power rating | Minimum fee | Variable fee | Maximum fee

First Bundled Unit(s)—cumulative MWt:

0 MWt ≤ 20 MWt | TBD a | N/A | N/A.

>20 MWt ≤ 250 MWt | TBD a | TBD d | N/A.

>250 MWt ≤ 2,000 MWt | TBD b | TBD e | N/A.

>2,000 MWt ≤ 4,500 MWt | N/A | N/A | TBD. c

Additional Bundled Unit(s)—cumulative MWt (above the first bundled unit of 4,500 MWt):

0 MWt ≤ 2,000 MWt | N/A | TBD f | N/A.

>2,000 MWt ≤ 4,500 MWt | N/A | N/A | TBD. c

a Annual fee paid by the non-power production or utilization facilities fee class.

b Average of the annual fees for the spent fuel storage/reactor decommissioning and the non-power production or utilization facilities fee classes.

c Annual fee paid by the operating power reactors fee class.

d [((b)−(a))/230] × the difference between 20 MWt for the first bundled unit(s) and the actual cumulative licensed thermal power rating up to 250 MWt.

e [((c)−(b))/1,750] × the difference between 250 MWt for the first bundled unit(s) and the actual cumulative licensed thermal power rating up to 2,000 MWt.

f [((c)−(b))/2,000] × the difference between 4,500 MWt for the first bundled unit(s) and the total actual cumulative licensed thermal power rating up to 2,000 MWt.

(3) The annual fee for an SMR collected under this paragraph (d) is in lieu of any fee otherwise required under paragraph (b) of this section. The annual fee under this paragraph (d) covers the same activities listed for the power reactor base annual fee and the spent fuel storage/reactor decommissioning reactor fee.

(e) The FY 2026 annual fee for licensees authorized to operate one or more non-power production or utilization facilities under a single 10 CFR part 50 license, unless the reactor is exempted from fees under § 171.11(b), is $98,200.

[72 FR 31426, June 6, 2007]

Editorial Note:For Federal Register citations affecting § 171.15, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 171.16 Annual fees: Materials licensees, holders of certificates of compliance, holders of sealed source and device registrations, holders of quality assurance program approvals, and government agencies licensed by the NRC.

(a)(1) The provisions of this section apply to person(s) who are authorized to conduct activities under—

(i) 10 CFR part 30 for byproduct material;

(ii) 10 CFR part 40 for source material;

(iii) 10 CFR part 70 for special nuclear material;

(iv) 10 CFR part 71 for packaging and transportation of radioactive material; and

(v) 10 CFR part 76 for uranium enrichment.

(2) Notwithstanding the other provisions in this section, the regulations in this part do not apply to uranium recovery and fuel facility licensees until after the Commission verifies through inspection that the facility has been constructed in accordance with the requirements of the license.

(3) In accordance with § 171.17, each person identified in paragraph (a)(1) of this section shall pay the applicable annual fee for each license the person holds during the FY. Annual fees will be prorated for new licenses issued and for licenses for which termination is requested and activities permanently ceased during the FY as provided in § 171.17. If a single license authorizes more than one activity (e.g., human use and irradiator activities), annual fees will be assessed for each fee category applicable to the license. If a person holds more than one license, the total annual fee assessed will be the cumulative total of the annual fees applicable to each license held.

(b) The FY 2026 annual fee is comprised of a base annual fee and associated additional charges. The base FY 2026 annual fee is the sum of budgeted costs for the following activities:

(1) Generic and other research activities directly related to the regulation of materials licenses as defined in this part; and

(2) Other safety, environmental, and safeguards activities for materials licenses, except costs for licensing and inspection activities that are recovered under Part 170 of this chapter.

(c) A licensee who is required to pay an annual fee under this section, in addition to 10 CFR part 72 licenses, may qualify as a small entity. If a licensee qualifies as a small entity and provides the Commission with the proper certification along with its annual fee payment, the licensee may pay reduced annual fees as shown in table 1 to this paragraph (c). Failure to file a small entity certification in a timely manner could result in the receipt of a delinquent invoice requesting the outstanding balance due and/or denial of any refund that might otherwise be due. The small entity fees are as follows:

Table 1 to Paragraph (c)

NRC small entity classification | Maximum annual fee per licensed category

Small businesses not engaged in manufacturing (Average gross receipts over the last 5 completed fiscal years):

$555,000 to $8 million | $5,800

Less than $555,000 | 1,100

Small not-for-profit organizations (Annual gross receipts):

$555,000 to $8 million | 5,800

Less than $555,000 | 1,100

Manufacturing entities that have an average of 500 employees or fewer:

35 to 500 employees | 5,800

Fewer than 35 employees | 1,100

Small governmental jurisdictions (Including publicly supported educational institutions) (Population): 20,000 to 49,999 | 5,800

Fewer than 20,000 | 1,100

Educational institutions that are not State or publicly supported, and have 500 employees or fewer: 35 to 500 employees | 5,800

Fewer than 35 employees | 1,100

(d) The FY 2026 annual fees for materials licensees and holders of certificates, registrations, or approvals subject to fees under this section are shown in table 2 to this paragraph (d):

Table 2 to Paragraph (d)—Schedule of Materials Annual Fees and Fees for Government Agencies Licensed by the NRC

[See footnotes at end of table]

Category of materials licenses | Annual fees 1 2 3

1. Special nuclear material:

A. (1) Licenses for possession and use of U-235 or plutonium for fuel fabrication activities.

(a) Strategic Special Nuclear Material (High Enriched Uranium). 15 [Program Code(s): 21213] | 5,827,000

(b) Low Enriched Uranium in Dispersible Form Used for Fabrication of Power Reactor Fuel. 15 [Program Code(s): 21210] | 1,975,000

(2) All other special nuclear materials licenses not included in category 1.A.(1) which are licensed for fuel cycle activities

(a) Facilities with limited operations. 15 [Program Code(s): 21310, 21320] | 1,628,000

(b) Gas centrifuge enrichment demonstration facility. 15 [Program Code(s): 21205] | 5 N/A

(c) Others, including hot cell facility. 15 [Program Code(s): 21130, 21131, 21133] | 5 N/A

B. Licenses for receipt and storage of spent fuel and reactor-related Greater than Class C (GTCC) waste at an independent spent fuel storage installation (ISFSI).11 15 [Program Code(s): 23200] | N/A

C. Licenses for possession and use of special nuclear material of less than a critical mass, as defined in § 70.4 of this chapter, in sealed sources contained in devices used in industrial measuring systems, including x-ray fluorescence analyzers. [Program Code(s): 22140] | 3,800

D. All other special nuclear material licenses, except licenses authorizing special nuclear material in sealed or unsealed form in combination that would constitute a critical mass, as defined in § 70.4 of this chapter, for which the licensee shall pay the same fees as those under category 1.A. [Program Code(s): 22110, 22111, 22120, 22131, 22136, 22150, 22151, 22161, 22170, 23100, 23300, 23310] | 9,200

E. Licenses or certificates for the operation of a uranium enrichment facility. 15 [Program Code(s): 21200] | 2,539,000

F. Licenses for possession and use of special nuclear materials greater than critical mass, as defined in § 70.4 of this chapter, for development and testing of commercial products, and other non-fuel-cycle activities. 4 [Program Code: 22155] | 6,700

2. Source material:

A. (1) Licenses for possession and use of source material for refining uranium mill concentrates to uranium hexafluoride or for deconverting uranium hexafluoride in the production of uranium oxides for disposal. 15 [Program Code: 11400] | 1,237,000

(2) Licenses for possession and use of source material in recovery operations such as milling, in situ recovery, heap-leaching, ore buying stations, ion-exchange facilities and in processing of ores containing source material for extraction of metals other than uranium or thorium, including licenses authorizing the possession of byproduct waste material (tailings) from source material recovery operations, as well as licenses authorizing the possession and maintenance of a facility in a standby mode

(a) Conventional and Heap Leach facilities. 15 [Program Code(s): 11100] | 5 N/A

(b) Basic In Situ Recovery facilities. 15 [Program Code(s): 11500] | 50,300

(c) Expanded In Situ Recovery facilities. 15 [Program Code(s): 11510] | 5 N/A

(d) In Situ Recovery Resin facilities. 15 [Program Code(s): 11550] | 5 N/A

(e) Resin Toll Milling facilities. 15 [Program Code(s): 11555] | 5 N/A

(f) Other facilities.6 15 [Program Code(s): 11700] | 5 N/A

(3) Licenses that authorize the receipt of byproduct material, as defined in section 11e.(2) of the Atomic Energy Act, from other persons for possession and disposal, except those licenses subject to the fees in category 2.A.(2) or category 2.A.(4). 15 [Program Code(s): 11600, 12000] | 5 N/A

(4) Licenses that authorize the receipt of byproduct material, as defined in section 11e.(2) of the Atomic Energy Act, from other persons for possession and disposal incidental to the disposal of the uranium waste tailings generated by the licensee's milling operations, except those licenses subject to the fees in category 2.A.(2). 15 [Program Code(s): 12010] | 5 N/A

B. Licenses which authorize the possession, use, and/or installation of source material for shielding. 16, 17 [Program Code(s): 11210] | 4,400

C. Licenses to distribute items containing source material to persons exempt from the licensing requirements of part 40 of this chapter. [Program Code: 11240] | 16,100

D. Licenses to distribute source material to persons generally licensed under part 40 of this chapter. [Program Code(s): 11230, 11231] | 8,100

E. Licenses for possession and use of source material for processing or manufacturing of products or materials containing source material for commercial distribution. [Program Code: 11710] | 10,400

F. All other source material licenses. [Program Code(s): 11200, 11220, 11221, 11300, 11800, 11810, 11820] | 12,800

3. Byproduct material:

A. Licenses of broad scope for possession and use of byproduct material issued under parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. Number of locations of use: 1-5. [Program Code(s): 03211, 03212, 03213] | 44,400

(1). Licenses of broad scope for the possession and use of byproduct material issued under parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. Number of locations of use: 6-20. [Program Code(s): 04010, 04012, 04014] | 58,900

(2). Licenses of broad scope for the possession and use of byproduct material issued under parts 30 and 33 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. Number of locations of use: more than 20. [Program Code(s): 04011, 04013, 04015] | 73,600

B. Other licenses for possession and use of byproduct material issued under part 30 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. Number of locations of use: 1-5. [Program Code(s): 03214, 03215, 22135, 22162] | 15,000

(1). Other licenses for possession and use of byproduct material issued under part 30 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. Number of locations of use: 6-20. [Program Code(s): 04110, 04112, 04114, 04116] | 20,000

(2). Other licenses for possession and use of byproduct material issued under part 30 of this chapter for processing or manufacturing of items containing byproduct material for commercial distribution. Number of locations of use: more than 20. [Program Code(s): 04111, 04113, 04115, 04117] | 24,900

C. Licenses issued under §§ 32.72 and/or 32.74 of this chapter that authorize the processing or manufacturing and distribution or redistribution of radiopharmaceuticals, generators, reagent kits, and/or sources and devices containing byproduct material. This category does not apply to licenses issued to nonprofit educational institutions whose processing or manufacturing is exempt under § 170.11(a)(4) of this chapter. Number of locations of use: 1-5. [Program Code(s): 02500, 02511, 02513] | 14,800

(1). Licenses issued under §§ 32.72 and/or 32.74 of this chapter that authorize the processing or manufacturing and distribution or redistribution of radiopharmaceuticals, generators, reagent kits, and/or sources and devices containing byproduct material. This category does not apply to licenses issued to nonprofit educational institutions whose processing or manufacturing is exempt under § 170.11(a)(4) of this chapter. Number of locations of use: 6-20. [Program Code(s): 04210, 04212, 04214] | 21,900

(2). Licenses issued under §§ 32.72 and/or 32.74 of this chapter that authorize the processing or manufacturing and distribution or redistribution of radiopharmaceuticals, generators, reagent kits, and/or sources and devices containing byproduct material. This category does not apply to licenses issued to nonprofit educational institutions whose processing or manufacturing is exempt under § 170.11(a)(4) of this chapter. Number of locations of use: more than 20. [Program Code(s): 04211, 04213, 04215] | 27,100

D. [Reserved] | 5 N/A

E. Licenses for possession and use of byproduct material in sealed sources for irradiation of materials in which the source is not removed from its shield (self-shielded units). [Program Code(s): 03510, 03520] | 14,400

F. Licenses for possession and use of less than or equal to 10,000 curies of byproduct material in sealed sources for irradiation of materials in which the source is exposed for irradiation purposes. This category also includes underwater irradiators for irradiation of materials in which the source is not exposed for irradiation purposes. [Program Code(s): 03511] | 14,400

G. Licenses for possession and use of greater than 10,000 curies of byproduct material in sealed sources for irradiation of materials in which the source is exposed for irradiation purposes. This category also includes underwater irradiators for irradiation of materials in which the source is not exposed for irradiation purposes. [Program Code(s): 03521] | 120,300

H. Licenses issued under subpart A of part 32 of this chapter to distribute items containing byproduct material that require device review to persons exempt from the licensing requirements of part 30 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of part 30 of this chapter. [Program Code(s): 03254, 03255, 03257] | 15,400

I. Licenses issued under subpart A of part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require device evaluation to persons exempt from the licensing requirements of part 30 of this chapter, except for specific licenses authorizing redistribution of items that have been authorized for distribution to persons exempt from the licensing requirements of part 30 of this chapter. [Program Code(s): 03250, 03251, 03253, 03256] | 21,000

J. Licenses issued under subpart B of part 32 of this chapter to distribute items containing byproduct material that require sealed source and/or device review to persons generally licensed under part 31 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under part 31 of this chapter. [Program Code(s): 03240, 03241, 03243] | 5,700

K. Licenses issued under subpart B of part 32 of this chapter to distribute items containing byproduct material or quantities of byproduct material that do not require sealed source and/or device review to persons generally licensed under part 31 of this chapter, except specific licenses authorizing redistribution of items that have been authorized for distribution to persons generally licensed under part 31 of this chapter. [Program Code(s): 03242, 03244] | 4,300

L. Licenses of broad scope for possession and use of byproduct material issued under parts 30 and 33 of this chapter for research and development that do not authorize commercial distribution. Number of locations of use: 1-5. [Program Code(s): 01100, 01110, 01120, 03610, 03611, 03612, 03613] | 20,500

(1) Licenses of broad scope for possession and use of byproduct material issued under parts 30 and 33 of this chapter for research and development that do not authorize commercial distribution. Number of locations of use: 6-20. [Program Code(s): 04610, 04612, 04614, 04616, 04618, 04620, 04622] | 27,200

(2) Licenses of broad scope for possession and use of byproduct material issued under parts 30 and 33 of this chapter for research and development that do not authorize commercial distribution. Number of locations of use: more than 20. [Program Code(s): 04611, 04613, 04615, 04617, 04619, 04621, 04623] | 34,100

M. Other licenses for possession and use of byproduct material issued under part 30 of this chapter for research and development that do not authorize commercial distribution. [Program Code(s): 03620] | 21,100

N. Licenses that authorize services for other licensees, except: (1) Licenses that authorize only calibration and/or leak testing services are subject to the fees specified in fee category 3.P.; and (2) Licenses that authorize waste disposal services are subject to the fees specified in fee categories 4.A., 4.B., and 4.C. 21 [Program Code(s): 03219, 03225, 03226] | 23,200

O. Licenses for possession and use of byproduct material issued under part 34 of this chapter for industrial radiography operations. This category also includes the possession and use of source material for shielding authorized under part 40 of this chapter when authorized on the same license. Number of locations of use: 1-5. [Program Code(s): 03310, 03320] | 34,300

(1). Licenses for possession and use of byproduct material issued under part 34 of this chapter for industrial radiography operations. This category also includes the possession and use of source material for shielding authorized under part 40 of this chapter when authorized on the same license. Number of locations of use: 6-20. [Program Code(s): 04310, 04312] | 45,800

(2). Licenses for possession and use of byproduct material issued under part 34 of this chapter for industrial radiography operations. This category also includes the possession and use of source material for shielding authorized under part 40 of this chapter when authorized on the same license. Number of locations of use: more than 20. [Program Code(s): 04311, 04313] | 57,200

P. All other specific byproduct material licenses, except those in categories 4.A. through 9.D. 18 Number of locations of use: 1-5. [Program Code(s): 02400, 02410, 03120, 03121, 03122, 03123, 03124, 03130, 03140, 03220, 03221, 03222, 03800, 03810, 22130] | 16,700

(1). All other specific byproduct material licenses, except those in categories 4.A. through 9.D. 18 Number of locations of use: 6-20. [Program Code(s): 04410, 04412, 04414, 04416, 04418, 04420, 04422, 04424, 04426, 04428, 04430, 04432, 04434, 04436, 04438] | 22,500

(2). All other specific byproduct material licenses, except those in categories 4.A. through 9.D. 18 Number of locations of use: more than 20. [Program Code(s): 04411, 04413, 04415, 04417, 04419, 04421, 04423, 04425, 04427, 04429, 04431, 04433, 04435, 04437, 04439] | 28,200

Q. Registration of devices generally licensed under part 31 of this chapter | 13 N/A

R. Possession of items or products containing radium-226 identified in § 31.12 of this chapter which exceed the number of items or limits specified in that section: 14

(1). Possession of quantities exceeding the number of items or limits in § 31.12(a)(4) or (5) of this chapter but less than or equal to 10 times the number of items or limits specified. [Program Code(s): 02700] | 9,800

(2). Possession of quantities exceeding 10 times the number of items or limits specified in § 31.12(a)(4) or (5) of this chapter. [Program Code(s): 02710] | 10,400

S. Licenses for production of accelerator-produced radionuclides. [Program Code(s): 03210] | 41,000

4. Waste disposal and processing:

A. Licenses specifically authorizing the receipt of waste byproduct material, source material, or special nuclear material from other persons for the purpose of contingency storage or commercial land disposal by the licensee; or licenses authorizing contingency storage of low-level radioactive waste at the site of nuclear power reactors; or licenses for receipt of waste from other persons for incineration or other treatment, packaging of resulting waste and residues, and transfer of packages to another person authorized to receive or dispose of waste material. [Program Code(s): 03231, 03233, 03236, 06100, 06101] | 36,400

B. Licenses specifically authorizing the receipt of waste byproduct material, source material, or special nuclear material from other persons for the purpose of packaging or repackaging the material. The licensee will dispose of the material by transfer to another person authorized to receive or dispose of the material. [Program Code(s): 03234] | 23,800

C. Licenses specifically authorizing the receipt of prepackaged waste byproduct material, source material, or special nuclear material from other persons. The licensee will dispose of the material by transfer to another person authorized to receive or dispose of the material. [Program Code(s): 03232] | 14,000

5. Well logging:

A. Licenses for possession and use of byproduct material, source material, and/or special nuclear material for well logging, well surveys, and tracer studies other than field flooding tracer studies. [Program Code(s): 03110, 03111, 03112] | 19,200

B. Licenses for possession and use of byproduct material for field flooding tracer studies. [Program Code(s): 03113] | 5 N/A

6. Nuclear laundries:

A. Licenses for commercial collection and laundry of items contaminated with byproduct material, source material, or special nuclear material. [Program Code(s): 03218] | 45,000

7. Medical licenses:

A. Licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, or special nuclear material in sealed sources contained in gamma stereotactic radiosurgery units, teletherapy devices, or similar beam therapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license.9 17 Number of locations of use: 1-5. [Program Code(s): 02300, 02310] | 44,300

(1). Licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, or special nuclear material in sealed sources contained in gamma stereotactic radiosurgery units, teletherapy devices, or similar beam therapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license.9 17 Number of locations of use: 6-20. [Program Code(s): 04510, 04512] | 58,900

(2). Licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, or special nuclear material in sealed sources contained in gamma stereotactic radiosurgery units, teletherapy devices, or similar beam therapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license.9 17 Number of locations of use: more than 20. [Program Code(s): 04511, 04513] | 73,700

B. Licenses of broad scope issued to medical institutions or two or more physicians under parts 30, 33, 35, 40, and 70 of this chapter authorizing research and development, including human use of byproduct material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license.9 17 Number of locations of use: 1-5. [Program Code(s): 02110] | 63,200

(1). Licenses of broad scope issued to medical institutions or two or more physicians under parts 30, 33, 35, 40, and 70 of this chapter authorizing research and development, including human use of byproduct material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license.9 17 Number of locations of use: 6-20. [Program Code(s): 04710] | 84,200

(2). Licenses of broad scope issued to medical institutions or two or more physicians under parts 30, 33, 35, 40, and 70 of this chapter authorizing research and development, including human use of byproduct material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license.9 17 Number of locations of use: more than 20. [Program Code(s): 04711] | 105,000

C. Other licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, and/or special nuclear material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license.9 17 19 Number of locations of use: 1-5. [Program Code(s): 02120, 02121, 02200, 02201, 02210,02220, 02230, 02231,02240, 221601 $23,300

(1). Other licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, and/or special nuclear material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license.9 17 19 Number of locations of use: 6-20. [Program Code(s): 04810, 04812, 04814, 04816, 04818, 04820, 04822, 04824, 04826,048281 $33,000

(2). Other licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, and/or special nuclear material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices. This category also includes the possession and use of source material for shielding when authorized on the same license.9 17 19 Number of locations of use: more than 20. [Program Code(s): 04811, 04813, 04815, 04817, 04819, 04821, 04823, 04825, 04827, 04829]

8. Civil defense:

A. Licenses for possession and use of byproduct material, source material, or special nuclear material for civil defense activities. [Program Code(s): 03710] | 9,800

9. Device, product, or sealed source safety evaluation:

A. Registrations issued for the safety evaluation of devices or products containing byproduct material, source material, or special nuclear material, except reactor fuel devices, for commercial distribution | 28,500

B. Registrations issued for the safety evaluation of devices or products containing byproduct material, source material, or special nuclear material manufactured in accordance with the unique specifications of, and for use by, a single applicant, except reactor fuel devices | 14,800

C. Registrations issued for the safety evaluation of sealed sources containing byproduct material, source material, or special nuclear material, except reactor fuel, for commercial distribution | 8,700

D. Registrations issued for the safety evaluation of sealed sources containing byproduct material, source material, or special nuclear material, manufactured in accordance with the unique specifications of, and for use by, a single applicant, except reactor fuel | 1,800

10. Transportation of radioactive material:

A. Certificates of Compliance or other package approvals issued for design of casks, packages, and shipping containers

1. Spent Fuel, High-Level Waste, and plutonium air packages. | 6 N/A

2. Other Casks | 6 N/A

B. Quality assurance program approvals issued under part 71 of this chapter

1. Users and Fabricators | 6 N/A

2. Users | 6 N/A

C. Evaluation of security plans, route approvals, route surveys, and transportation security devices (including immobilization devices) | 6 N/A

11. Standardized spent fuel facilities | 6 N/A

12. Special Projects. [Program Code(s): 25110] | 6 N/A

13. A. Spent fuel storage cask Certificate of Compliance | 6 N/A

B. General licenses for storage of spent fuel under § 72.210 of this chapter | 12 N/A

14. Decommissioning/Reclamation: A. Byproduct, source, or special nuclear material licenses and other approvals authorizing decommissioning, decontamination, reclamation, or site restoration activities under parts 30, 40, 70, 72, and 76 of this chapter, including master materials licenses (MMLs). The transition to this fee category occurs when a licensee has permanently ceased principal activities. [Program Code(s): 03900, 11900, 21135, 21215, 21325, 22200] | 7 20 N/A

B. Site-specific decommissioning activities associated with unlicensed sites, including MMLs, whether or not the sites have been previously licensed. | 7 N/A

15. Import and Export licenses | 8 N/A

16. Reciprocity | 8 N/A

17. MMLs of broad scope issued to Government agencies. 15 [Program Code(s): 03614] | 535,000

18. Department of Energy:

A. Certificates of Compliance | 10 $2,352,000

B. Uranium Mill Tailings Radiation Control Act (UMTRCA) activities. [Program Code(s): 03237, 03238] | 190,000

1 Annual fees will be assessed based on whether a licensee held a valid license with the NRC authorizing possession and use of radioactive material during the current FY. The annual fee is waived for those materials licenses and holders of certificates, registrations, and approvals who either filed for termination of their licenses or approvals or filed for possession-only/storage licenses before October 1 of the current FY and permanently ceased licensed activities entirely before this date. Annual fees for licensees who filed for termination of a license, downgrade of a license, or for a possession-only license during the FY and for new licenses issued during the FY will be prorated in accordance with the provisions of § 171.17. If a person holds more than one license, certificate, registration, or approval, the annual fee(s) will be assessed for each license, certificate, registration, or approval held by that person. For licenses that authorize more than one activity on a single license (e.g., human use and irradiator activities), annual fees will be assessed for each category applicable to the license.

2 Payment of the prescribed annual fee does not automatically renew the license, certificate, registration, or approval for which the fee is paid. Renewal applications must be filed in accordance with the requirements of part 30, 40, 70, 71, 72, or 76 of this chapter.

3 Each FY, fees for these materials licenses will be calculated and assessed in accordance with § 171.13 and will be published in the Federal Register for notice and comment.

4 Other facilities include licenses for extraction of metals, heavy metals, and rare earths.

5 There are no existing NRC licenses in these fee categories. If the NRC issues a license for these categories, the Commission will consider establishing an annual fee for this type of license.

6 Standardized spent fuel facilities, 10 CFR parts 71 and 72 Certificates of Compliance and related Quality Assurance program approvals, and special reviews, such as topical reports, are not assessed an annual fee because the generic costs of regulating these activities are primarily attributable to users of the designs, certificates, and topical reports.

7 Licensees in this category are not assessed an annual fee because they are charged an annual fee in other categories while they are licensed to operate.

8 No annual fee is charged because it is not practical to administer due to the relatively short life or temporary nature of the license. Because section 101 of the ADVANCE Act created an excluded activity for international nuclear export and innovation activities, no annual fee is charged for import and export licenses.

9 Separate annual fees will not be assessed for pacemaker licenses issued to medical institutions that also hold nuclear medicine licenses under fee categories 7.A., 7.A.1, 7.A.2, 7.B., 7.B.1, 7.B.2, 7.C., 7.C.1, or 7.C.2.

10 This includes Certificates of Compliance issued to DOE that are not funded from the Nuclear Waste Fund.

11 See § 171.15(c).

12 See § 171.15(c).

13 No annual fee is charged for this category because the cost of the general license registration program applicable to licenses in this category will be recovered through 10 CFR part 170 fees.

14 Persons who possess radium sources that are used for operational purposes in another fee category are not also subject to the fees in this category. (This exception does not apply if the radium sources are possessed for storage only.)

15 Licensees subject to fees under categories 1.A., 1.B., 1.E., and 2.A., and licensees paying fees under fee category 17 must pay the largest applicable fee and are not subject to additional fees listed in this table.

16 Licensees paying fees under 3.C. are not subject to fees under 2.B. for possession and shielding authorized on the same license.

17 Licensees paying fees under 7.A., 7.A.1, 7.A.2, 7.B., 7.B.1, 7.B.2, 7.C., 7.C.1, or 7.C.2 are not subject to fees under 2.B. for possession and shielding authorized on the same license.

18 Licensees paying fees under 3.N. are not subject to paying fees under 3.P., 3.P.1, or 3.P.2 for calibration or leak testing services authorized on the same license.

19 Licensees paying fees under 7.B., 7.B.1, or 7.B.2 are not subject to paying fees under 7.C., 7.C.1, or 7.C.2 for broad scope licenses issued under parts 30, 35, 40, and 70 of this chapter for human use of byproduct material, source material, and/or special nuclear material, except licenses for byproduct material, source material, or special nuclear material in sealed sources contained in teletherapy devices authorized on the same license.

20 No annual fee is charged for a materials license (or part of a materials license) that has transitioned to this fee category because the decommissioning costs will be recovered through 10 CFR part 170 fees, but annual fees may be charged for other activities authorized under the license that are not in decommissioning status.

21 Licensees paying fees under 4.A., 4.B., or 4.C. are not subject to paying fees under 3.N. licenses that authorize services for other licensees authorized on the same license.

Editorial Note:For Federal Register citations affecting § 171.16, see the List of CFR Sections Affected, which appears in the Finding Aids section of the printed volume and at www.govinfo.gov.

§ 171.17 Proration.

(a) Reactors, 10 CFR part 72 licensees who do not hold 10 CFR part 50, 10 CFR part 52, or 10 CFR part 53 licenses, and materials licenses with annual fees of $100,000 or greater for a single fee category. The NRC will base the proration of annual fees for terminated and downgraded licenses on the fee rule in effect at the time the action is official. The NRC will base the determinations on the proration requirements under paragraphs (a)(2) and (3) of this section.

(1) New licenses. (i) The annual fees for new licenses for power reactors and small modular reactors that are subject to fees under this part, for which the licensee has notified the NRC on or after October 1 of a fiscal year (FY) that the licensee has successfully completed power ascension testing, are prorated on the basis of the number of days remaining in the FY. Thereafter, the full annual fee is due and payable each subsequent FY.

(ii) The annual fees for new licenses for non-power production or utilization facilities, 10 CFR part 72 licensees who do not hold 10 CFR part 50, part 52, or part 53 licenses, and materials licenses with annual fees of $100,000 or greater for a single fee category for the current FY, that are subject to fees under this part and are granted a license to operate on or after October 1 of a FY, are prorated on the basis of the number of days remaining in the FY. Thereafter, the full annual fee is due and payable each subsequent FY.

(2) Terminations. The base operating power reactor annual fee for operating reactor licensees or the annual fee for small modular reactor licensees, who have requested amendment to withdraw operating authority permanently during the FY will be prorated based on the number of days during the FY the license was in effect before docketing of the certifications for permanent cessation of operations and permanent removal of fuel from the reactor vessel or when a final legally effective order to permanently cease operations has come into effect. The spent fuel storage/reactor decommissioning annual fee for reactor licensees who permanently cease operations and have permanently removed fuel from the site during the FY will be prorated on the basis of the number of days remaining in the FY after docketing of both the certifications of permanent cessation of operations and permanent removal of fuel from the site. The spent fuel storage/reactor decommissioning annual fee will be prorated for those 10 CFR part 72 licensees who do not hold a 10 CFR part 50, part 52, or part 53 license who request termination of the 10 CFR part 72 license and permanently cease activities authorized by the license during the FY based on the number of days the license was in effect before receipt of the termination request. The annual fee for materials licenses with annual fees of $100,000 or greater for a single fee category for the current FY will be prorated based on the number of days remaining in the FY when a termination request or a request for a possession-only license is received by the NRC, provided the licensee permanently ceased licensed activities during the specified period. The annual fee for non-power production or utilization facilities will be prorated based on the number of days remaining in the FY when the authorization to operate the facility has been permanently removed from the license during the FY.

(3) Downgraded licenses. The annual fee for a materials license with an annual fee of $100,000 or greater for a single fee category for the current FY, that is subject to fees under this part and downgraded on or after October 1 of a FY, is automatically prorated by the agency on the basis of the number of days remaining in the FY when the application for downgrade is received and approved by the NRC, provided the licensee permanently ceased the stated activities during the specified period.

(b) Materials licenses (excluding 10 CFR part 72 licenses and materials license with annual fees of $100,000 or greater for a single fee category, included in § 171.17(a)).

(1) New licenses. The annual fee for a materials license that is subject to fees under this part and issued on or after October 1 of the FY is prorated on the basis of when the NRC issues the new license. New licenses issued during the period October 1 through March 31 of the FY will be assessed one-half the annual fee for that FY. New licenses issued on or after April 1 of the FY will not be assessed an annual fee for that FY. Thereafter, the full fee is due and payable each subsequent FY.

(2) Terminations. The annual fee will be prorated for licenses for which a termination request or a request for a POL has been received on or after October 1 of a FY on the basis of when the application for termination or POL is received by the NRC provided the licensee permanently ceased licensed activities during the specified period. Licenses for which applications for termination or POL are filed during the period October 1 through March 31 of the FY are assessed one-half the annual fee for the applicable category(ies) for that FY. Licenses for which applications for termination or POL are filed on or after April 1 of the FY are assessed the full annual fee for that FY. Materials licenses transferred to a new Agreement State during the FY are considered terminated by the NRC, for annual fee purposes, on the date that the Agreement with the State becomes effective; therefore, the same proration provisions will apply as if the licenses were terminated.

(3) Downgraded licenses. (i) The annual fee for a materials license that is subject to fees under this part and downgraded on or after October 1 of a FY is automatically prorated on the basis of the date when the application for downgrade is received and approved by the NRC, provided the licensee permanently ceased the stated activities during the specified period.

(ii) Annual fees for licenses for which applications to downgrade are filed during the period October 1 through March 31 of the FY will be prorated as follows:

(A) Licenses for which applications have been filed to reduce the scope of the license from a higher fee category(ies) to a lower fee category(ies) will be assessed one-half the annual fee for the higher fee category and one-half the annual fee for the lower fee category(ies), and, if applicable, the full annual fee for fee categories not affected by the downgrade; and

(B) Licenses with multiple fee categories for which applications have been filed to downgrade by deleting a fee category will be assessed one-half the annual fee for the fee category being deleted and the full annual fee for the remaining categories.

(iii) Licenses for which applications to downgrade are filed on or after April 1 of the FY are assessed the full fee for that FY.

[72 FR 31431, June 6, 2007, as amended at 77 FR 35835, June 15, 2012; 83 FR 29657, June 25, 2018; 85 FR 37277, June 19, 2020; 86 FR 32183, June 16, 2021; 91 FR 15880, Mar. 30, 2026]

§ 171.19 Payment.

(a) Method of payment. All annual fee payments under this part are to be made payable to the U.S. Nuclear Regulatory Commission. The payments are to be made in U.S. funds using the electronic payment methods accepted at www.Pay.gov. Federal agencies may also make payment by IntraGovernmental Payment and Collection (IPAC). Specific instructions for making payments may be obtained by contacting the Office of the Chief Financial Officer at 301-415-7554. In accordance with Department of the Treasury requirements, refunds will only be made upon receipt of information on the payee's financial institution and bank accounts.

(b) Annual fees in the amount of $100,000 or more and described in the Federal Register document issued under § 171.13, must be paid in quarterly installments of 25 percent as billed by the NRC. The quarters begin on October 1, January 1, April 1, and July 1 of each fiscal year. The NRC will adjust the fourth quarterly invoice to recover the full amount of the revised annual fee. If the amounts collected in the first three quarters exceed the amount of the revised annual fee, the overpayment will be refunded. Licensees whose annual fee for the previous fiscal year was less than $100,000 (billed on the anniversary date of the license), and whose revised annual fee for the current fiscal year is $100,000 or greater (subject to quarterly billing), will be issued a bill upon publication of the final rule for the full amount of the revised annual fee for the current fiscal year, less any payments received for the current fiscal year based on the anniversary date billing process.

(c) Annual fees that are less than $100,000 are billed on the anniversary date of the license. For annual fee purposes, the anniversary date of the license is considered to be the first day of the month in which the original license was issued by the NRC. Licensees that are billed on the license anniversary date will be assessed the annual fee in effect on the anniversary date of the license. Materials licenses subject to the annual fee that are terminated during the fiscal year but before the anniversary month of the license will be billed upon termination for the fee in effect at the time of the billing. New materials licenses subject to the annual fee will be billed in the month the license is issued or in the next available monthly billing for the fee in effect on the anniversary date of the license. Thereafter, annual fees for new licenses will be assessed in the anniversary month of the license.

(d) Annual fees of less than $100,000 must be paid as billed by the NRC. Materials license annual fees that are less than $100,000 are billed on the anniversary date of the license. The materials licensees that are billed on the anniversary date of the license are those covered by fee categories 1.C., 1.D., 1.F., and 2.A.(2) through 9.D.

(e) Payment is due on the invoice date and interest accrues from the date of the invoice. However, interest will be waived if payment is received within 30 days from the invoice date.

(f) The NRC is entitled to collect any underpayment of fees as a result of an error by the NRC.

[65 FR 36968, June 12, 2000, as amended at 66 FR 32478, June 14, 2001; 71 FR 30755, May 30, 2006; 71 FR 33190, June 8, 2006; 72 FR 31432, June 6, 2007; 78 FR 39491, July 1, 2013; 79 FR 37154, June 30, 2014; 82 FR 30708, June 30, 2017; 89 FR 51822, June 20, 2024]

§ 171.21 [Reserved]

§ 171.23 Enforcement.

If any person required to pay the annual fee fails to pay when the fee is due, or files a false certification with respect to qualifying as a small entity under the Regulatory Flexibility Criteria, the Commission may refuse to process any application submitted by or on behalf of the person with respect to any license issued to the person and may suspend or revoke any licenses held by the person. The filing of a false certification to qualify as a small entity under § 171.16(c) of this part may also result in punitive action pursuant to 18 U.S.C. 1001.

[56 FR 31510, July 10, 1991]

§ 171.25 Collection, interest, penalties, and administrative costs.

All annual fees in §§ 171.15 and 171.16 will be collected pursuant to the procedures of 10 CFR part 15. Interest, penalties and administrative costs for late payments will be assessed in accordance with 10 CFR part 15, of this chapter, 4 CFR part 102, and other relevant regulations of the United States Government, as appropriate. In the event a quarterly installment is not made by the appropriate due date specified in § 171.19, the full fee becomes due and payable, with interest, penalties, and administrative costs of collection calculated from the date that quarterly installment was due.

[56 FR 31511, July 10, 1991]

§ 171.26 Right to dispute assessed fees.

All debtors' disputes of fees assessed must be submitted in accordance with 10 CFR 15.31.

[86 FR 32183, June 16, 2021]

§ 202.21 Purpose and scope.

(a) This subpart sets forth the procedures to be followed when a subpoena, order, or other demand (hereinafter referred to as a “demand”) of a court or other authority is issued for the production or disclosure of (1) any material contained in the files of the Department of Energy (DOE), (2) any information relating to material contained in the files of the DOE, or (3) any information or material acquired by any person while such person was an employee of the DOE as a part of the performance of his official duties or because of his official status.

(b) For purposes of this subpart, the term “Employee of the DOE” includes all officers and employees of the United States appointed by, or subject to the supervision, jurisdiction, or control of, the Administrator of DOE.

§ 202.22 Production or disclosure prohibited unless approved by appropriate DOE official.

No employee or former employee of the DOE shall, in response to a demand of a court or other authority, produce any material contained in the file of the DOE or disclose any information relating to material contained in the files of the DOE, or disclose any information or produce any material acquired as part of the performance of his official duties or because of his official status without prior approval of the General Counsel of DOE.

§ 202.23 Procedure in the event of a demand for production or disclosure.

(a) Whenever a demand is made upon an employee or former employee of the DOE for the production of material or the disclosure of information described in § 202.21(a), he shall immediately notify the Regional Counsel for the region where the issuing authority is located. The Regional Counsel shall immediately request instructions from the General Counsel of DOE.

(b) If oral testimony is sought by the demand, an affidavit, or, if that is not feasible, a statement by the party seeking the testimony or his attorney, setting forth a summary of the testimony desired, must be furnished for submission by the Regional Counsel to the General Counsel.

§ 202.24 Final action by the appropriate DOE official.

If the General Counsel approves a demand for the production of material or disclosure of information, he shall so notify the Regional Counsel and such other persons as circumstances may warrant.

§ 202.25 Procedure where a decision concerning a demand is not made prior to the time a response to the demand is required.

If response to the demand is required before the instructions from the General Counsel are received, a U.S. attorney or DOE attorney designated for the purpose shall appear with the employee or former employee of the DOE upon whom the demand has been made, and shall furnish the court or other authority with a copy of the regulations contained in this subpart and inform the court or other authority that the demand has been, or is being, as the case may be, referred for the prompt consideration of the appropriate DOE official and shall respectfully request the court or authority to stay the demand pending receipt of the requested instructions.

§ 202.26 Procedure in the event of an adverse ruling.

If the court or other authority declines to stay the effect of the demand in response to a request made in accordance with § 202.25 pending receipt of instructions, of if the court or other authority rules that the demand must be complied with irrespective of instructions not to produce the material or disclose the information sought, the employee or former employee upon whom the demand has been made shall respectfully decline to comply with the demand. “United States ex rel Touhy v. Ragen,” 340 U.S. 462.

§ 205.1 Purpose and scope.

This part establishes the procedures to be utilized and identifies the sanctions that are available in proceedings before the Department of Energy and State Offices, in accordance with parts 209 through 214 of this chapter. Any exception, exemption, appeal, stay, modification, recession, redress or resolution of private grievance sought under the authority of 42 U.S.C. 7194 shall be governed by the procedural rules set forth in 10 CFR part 1003.

[61 FR 35114, July 5, 1996]

§ 205.2 Definitions.

The definitions set forth in other parts of this chapter shall apply to this part, unless otherwise provided. In addition, as used in this part, the term:

Action means an order, interpretation, notice of probable violation or ruling issued, or a rulemaking undertaken by the DOE or, as appropriate, by a State Office.

Adjustment means a modification of the base period volume or other measure of allocation entitlement in accordance with part 211 of this chapter.

Aggrieved, for purposes of administrative proceedings, describes and means a person with an interest sought to be protected under the FEAA, EPAA, or Proclamation No. 3279, as amended, who is adversely affected by an order or interpretation issued by the DOE or a State Office.

Appropriate Regional Office or appropriate State Office means the office located in the State or DOE region in which the product will be physically delivered.

Assignment means an action designating that an authorized purchaser be supplied at a specified entitlement level by a specified supplier.

Conference means an informal meeting, incident to any proceeding, between DOE or State officials and any person aggrieved by that proceeding.

Consent order means a document of agreement between DOE and a person prohibiting certain acts, requiring the performance of specific acts or including any acts which DOE could prohibit or require pursuant to § 205.195.

Duly authorized representative means a person who has been designated to appear before the DOE or a State Office in connection with a proceeding on behalf of a person interested in or aggrieved by that proceeding. Such appearance may consist of the submission of applications, petitions, requests, statements, memoranda of law, other documents, or of a personal appearance, verbal communication, or any other participation in the proceeding.

EPAA means the Emergency Petroleum Allocation Act of 1973 (Pub. L. 93-159).

EPCA means the Energy Policy and Conservation Act (Pub. L. 94-163).

Exception means the waiver or modification of the requirements of a regulation, ruling or generally applicable requirement under a specific set of facts.

Exemption means the release from the obligation to comply with any part or parts, or any subpart thereof, of this chapter.

DOE means the Department of Energy, created by the FEAA and includes the DOE National Office and Regional Offices.

FEAA means the Federal Energy Administration Act of 1974 (Pub. L. 93-275).

Federal legal holiday means New Year's Day, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans' Day, Thanksgiving Day, Christmas Day, and any other day appointed as a national holiday by the President or the Congress of the United States.

Interpretation means a written statement issued by the General Counsel or his delegate or Regional Counsel, in response to a written request, that applies the regulations, rulings, and other precedents previously issued, to the particular facts of a prospective or completed act or transaction.

Notice of probable violation means a written statement issued to a person by the DOE that states one or more alleged violations of the provisions of this chapter or any order issued pursuant thereto.

Order means a written directive or verbal communication of a written directive, if promptly confirmed in writing, issued by the DOE or a State Office. It may be issued in response to an application, petition or request for DOE action or in response to an appeal from an order, or it may be a remedial order or other directive issued by the DOE or a State Office on its own initiative. A notice of probable violation is not an order. For purposes of this definition a “written directive” shall include telegrams, telecopies and similar transcriptions.

Person means any individual, firm, estate, trust, sole proprietorship, partnership, association, company, joint-venture, corporation, governmental unit or instrumentality thereof, or a charitable, educational or other institution, and includes any officer, director, owner or duly authorized representative thereof.

Proceeding means the process and activity, and any part thereof, instituted by the DOE or a State Office, either on its own initiative or in response to an application, complaint, petition or request submitted by a person, that may lead to an action by the DOE or a State Office.

Remedial order means a directive issued by the DOE requiring a person to cease a violation or to eliminate or to compensate for the effects of a violation, or both.

Ruling means an official interpretative statement of general applicability issued by the DOE General Counsel and published in the Federal Register that applies the DOE regulations to a specific set of circumstances.

State Office means a State Office of Petroleum Allocation certified by the DOE upon application pursuant to part 211 of this chapter.

Throughout this part the use of a word or term in the singular shall include the plural and the use of the male gender shall include the female gender.

(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub. L. 94-385; Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended, Pub. L. 94-385; Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267)

[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36555, Aug. 21, 1975; 40 FR 36761, Aug. 22, 1975; 41 FR 36647, Aug. 31, 1976; 43 FR 14437, Apr. 6, 1978]

§ 205.3 Appearance before the DOE or a State Office.

(a) A person may make an appearance, including personal appearances in the discretion of the DOE, and participate in any proceeding described in this part on his own behalf or by a duly authorized representative. Any application, appeal, petition, request or complaint filed by a duly authorized representative shall contain a statement by such person certifying that he is a duly authorized representative, unless a DOE form requires otherwise. Falsification of such certification will subject such person to the sanctions stated in 18 U.S.C. 1001 (1970).

(b) Suspension and disqualification: The DOE or a State Office may deny, temporarily or permanently, the privilege of participating in proceedings, including oral presentation, to any individual who is found by the DOE—

(1) To have made false or misleading statements, either verbally or in writing;

(2) To have filed false or materially altered documents, affidavits or other writings;

(3) To lack the specific authority to represent the person seeking a DOE or State Office action; or

(4) To have engaged in or to be engaged in contumacious conduct that substantially disrupts a proceeding.

§ 205.4 Filing of documents.

(a) Any document, including, but not limited to, an application, request, complaint, petition and other documents submitted in connection therewith, filed with the DOE or a State Office under this chapter is considered to be filed when it has been received by the DOE National Office, a Regional Office or a State Office. Documents transmitted to the DOE must be addressed as required by § 205.12. All documents and exhibits submitted become part of an DOE or a State Office file and will not be returned.

(b) Notwithstanding the provisions of paragraph (a) of this section, an appeal, a response to a denial of an appeal or application for modification or recision in accordance with §§ 205.106(a)(3) and 205.135(a)(3), respectively, a reply to a notice of probable violation, the appeal of a remedial order or remedial order for immediate compliance, a response to denial of a claim of confidentiality, or a comment submitted in connection with any proceeding transmitted by registered or certified mail and addressed to the appropriate office is considered to be filed upon mailing.

(c) Hand-delivered documents to be filed with the Office of Exceptions and Appeals shall be submitted to Room 8002 at 2000 M Street, NW., Washington, D.C. All other hand-delivered documents to be filed with the DOE National Office shall be submitted to the Executive Secretariat at 12th and Pennsylvania Avenue, NW., Washington, D.C. Hand-delivered documents to be filed with a Regional Office shall be submitted to the Office of the Regional Administrator. Hand-delivered documents to be filed with a State Office shall be submitted to the office of the chief executive officer of such office.

(d) Documents received after regular business hours are deemed filed on the next regular business day. Regular business hours for the DOE National Office are 8 a.m. to 4:30 p.m. Regular business hours for a Regional Office or a State Office shall be established independently by each.

§ 205.5 Computation of time.

(a) Days. (1) Except as provided in paragraph (b) of this section, in computing any period of time prescribed or allowed by these regulations or by an order of the DOE or a State Office, the day of the act, event, or default from which the designated period of time begins to run is not to be included. The last day of the period so computed is to be included unless it is a Saturday, Sunday, or Federal legal holiday in which event the period runs until the end of the next day that is neither a Saturday, Sunday, nor a Federal legal holiday.

(2) Saturdays, Sundays or intervening Federal legal holidays shall be excluded from the computation of time when the period of time allowed or prescribed is 7 days or less.

(b) Hours. If the period of time prescribed in an order issued by the DOE or a State Office is stated in hours rather than days, the period of time shall begin to run upon actual notice of such order, whether by verbal or written communication, to the person directly affected, and shall run without interruption, unless otherwise provided in the order, or unless the order is stayed, modified, suspended or rescinded. When a written order is transmitted by verbal communication, the written order shall be served as soon thereafter as is feasible.

(c) Additional time after service by mail. Whenever a person is required to perform an act, to cease and desist therefrom, or to initiate a proceeding under this part within a prescribed period of time after issuance to such person of an order, notice, interpretation or other document and the order, notice, interpretation or other document is served by mail, 3 days shall be added to the prescribed period.

§ 205.6 Extension of time.

When a document is required to be filed within a prescribed time, an extension of time to file may be granted by the office with which the document is required to be filed upon good cause shown.

§ 205.7 Service.

(a) All orders, notices, interpretations or other documents required to be served under this part shall be served personally or by registered or certified mail or by regular United States mail (only when service is effected by the DOE or a State Office), except as otherwise provided.

(b) Service upon a person's duly authorized representative shall constitute service upon that person.

(c) Service by registered or certified mail is complete upon mailing. Official United States Postal Service receipts from such registered or certified mailing shall constitute prima facie evidence of service.

§ 205.8 Subpoenas, special report orders, oaths, witnesses.

(a) In this section the following terms have the definitions indicated unless otherwise provided.

(1) “DOE Official” means the Secretary of the Department of Energy, the Administrator of the Economic Regulatory Administration, the Administrator of Energy Information Administration, the General Counsel of the Department of Energy, the Special Counsel for Compliance, the Assistant Administrator for Enforcement, the Director of the Office of Hearings and Appeals, or the duly authorized delegate of any of the foregoing officials.

(2) “SRO” means a Special Report Order issued pursuant to paragraph (b) of this section.

(b) (1) In accordance with the provisions of this section and as otherwise authorized by law, a DOE Official may sign, issue and serve subpoenas; administer oaths and affirmations; take sworn testimony; compel attendance of and sequester witnesses; control dissemination of any record of testimony taken pursuant to this section; subpoena and reproduce books, papers, correspondence, memoranda, contracts agreements, or other relevant records or tangible evidence including, but not limited to, information retained in computerized or other automated systems in possession of the subpoenaed person. Unless otherwise provided by subpart O, the provisions of this section apply to subpoenas issued by the office of Hearings and Appeals with respect to matters in proceedings before it.

(2) A DOE Official may issue a Special Report Order requiring any person subject to the jurisdiction of the ERA to file a special report providing information relating to DOE regulations, including but not limited to written answers to specific questions. The SRO may be in addition to any other reports required by this chapter.

(3) The DOE Official who issues a subpoena or SRO pursuant to this section, for good cause shown, may extend the time prescribed for compliance with the subpoena or SRO and negotiate and approve the terms of satisfactory compliance.

(4) Prior to the time specified for compliance, but in no event more than 10 days after the date of service of the subpoena or SRO, the person upon whom the document was served may file a request for review of the subpoena or SRO with the DOE Official who issued the document. The DOE Official then shall forward the request to his supervisor who shall provide notice of receipt to the person requesting review. The supervisor or his designee may extend the time prescribed for compliance with the subpoena or SRO and negotiate and approve the terms of satisfactory compliance.

(5) If the subpoena or SRO is not modified or rescinded within 10 days of the date of the supervisor's notice of receipt,

(i) the subpoena or SRO shall be effective as issued; and

(ii) the person upon whom the document was served shall comply with the subpoena or SRO within 20 days of the date of the supervisor's notice of receipt, unless otherwise notified in writing by the supervisor or his designee.

(6) There is no administrative appeal of a subpoena or SRO.

(c) (1) A subpoena or SRO shall be served upon a person named in the document by delivering a copy of the document to the person named.

(2) Delivery of a copy of the document to a natural person may be made by:

(i) Handing it to the person;

(ii) Leaving it at the person's office with the person in charge of the office;

(iii) Leaving it at the person's dwelling or usual place of abode with a person of suitable age and discretion who resides there;

(iv) Mailing it to the person by registered or certified mail, at his last known address; or

(v) Any method that provides the person with actual notice prior to the return date of the document.

(3) Delivery of a copy of the document to a person who is not a natural person may be made by:

(i) Handing it to a registered agent of the person;

(ii) Handing it to any officer, director, or agent in charge of any office of such person;

(iii) Mailing it to the last known address of any registered agent, officer, director, or agent in charge of any office of the person by registered or certified mail, or

(iv) Any method that provides any registered agent, officer, director, or agent in charge of any office of the person with actual notice of the document prior to the return date of the document.

(d)(1) A witness subpoenaed by the DOE shall be paid the same fees and mileage as paid to a witness in the district courts of the United States.

(2) If in the course of a proceeding conducted pursuant to subpart M or O, a subpoena is issued at the request of a person other than an officer or agency of the United States, the witness fees and mileage shall be paid by the person who requested the subpoena. However, at the request of the person, the witness fees and mileage shall be paid by the DOE if the person shows:

(i) The presence of the subpoenaed witness will materially advance the proceeding; and

(ii) The person who requested that the subpoena be issued would suffer a serious hardship if required to pay the witness fees and mileage. The DOE Official issuing the subpoena shall make the determination required by this subsection.

(e) If any person upon whom a subpoena or SRO is served pursuant to this section, refuses or fails to comply with any provision of the subpoena or SRO, an action may be commenced in the United States District Court to enforce the subpoena or SRO.

(f) (1) Documents produced in response to a subpoena shall be accompanied by the sworn certification, under penalty of perjury, of the person to whom the subpoena was directed or his authorized agent that (i) a diligent search has been made for each document responsive to the subpoena, and (ii) to the best of his knowledge, information, and belief each document responsive to the subpoena is being produced unless withheld on the grounds of privilege pursuant to paragraph (g) of this section.

(2) Any information furnished in response to an SRO shall be accompanied by the sworn certification under penalty of perjury of the person to whom it was directed or his authorized agent who actually provides the information that (i) a diligent effort has been made to provide all information required by the SRO, and (ii) all information furnished is true, complete, and correct unless withheld on grounds of privilege pursuant to paragraph (g) of this section.

(3) If any document responsive to a subpoena is not produced or any information required by an SRO is not furnished, the certification shall include a statement setting forth every reason for failing to comply with the subpoena or SRO.

(g) If a person to whom a subpoena or SRO is directed withholds any document or information because of a claim of attorney-client or other privilege, the person submitting the certification required by paragraph (f) of this section also shall submit a written list of the documents or the information withheld indicating a description of each document or information, the date of the document, each person shown on the document as having received a copy of the document, each person shown on the document as having prepared or been sent the document, the privilege relied upon as the basis for withholding the document or information, and an identification of the person whose privilege is being asserted.

(h)(1) If testimony is taken pursuant to a subpoena, the DOE Official shall determine whether the testimony shall be recorded and the means by which the testimony is recorded.

(2) A witness whose testimony is recorded may procure a copy of his testimony by making a written request for a copy and paying the appropriate fees. However, the DOE official may deny the request for good cause. Upon proper identification, any witness or his attorney has the right to inspect the official transcript of the witness' own testimony.

(i) The DOE Official may sequester any person subpoenaed to furnish documents or give testimony. Unless permitted by the DOE Official, neither a witness nor his attorney shall be present during the examination of any other witnesses.

(j)(1) Any witness whose testimony is taken may be accompanied, represented and advised by his attorney as follows:

(i) Upon the initiative of the attorney or witness, the attorney may advise his client, in confidence, with respect to the question asked his client, and if the witness refuses to answer any question, the witness or his attorney is required to briefly state the legal grounds for such refusal; and

(ii) If the witness claims a privilege to refuse to answer a question on the grounds of self-incrimination, the witness must assert the privilege personally.

(k) The DOE Official shall take all necessary action to regulate the course of testimony and to avoid delay and prevent or restrain contemptuous or obstructionist conduct or contemptuous language. DOE may take actions as the circumstances may warrant in regard to any instances where any attorney refuses to comply with directions or provisions of this section.

(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended, Pub. L. 94-163, and Pub. L. 94-385; Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended, Pub. L. 94-332, Pub. L. 94-385, Pub. L. 95-70, and Pub. L. 95-91; Energy Supply and Environmental Coordination Act of 1974, Pub. L. 93-319, as amended; Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385, and Pub. L. 95-70; Department of Energy Organization Act, Pub. L. 95-91; E.O. 11790, 39 FR 23185; E.O. 12009, 42 FR 46267)

[44 FR 23201, Apr. 19, 1979]

§ 205.9 General filing requirements.

(a) Purpose and scope. The provisions of this section shall apply to all documents required or permitted to be filed with the DOE or with a State Office.

(b) Signing. All applications, petitions, requests, appeals, comments or any other documents that are required to be signed, shall be signed by the person filing the document or a duly authorized representative. Any application, appeal, petition, request, complaint or other document filed by a duly authorized representative shall contain a statement by such person certifying that he is a duly authorized representative, unless an DOE form other wise requires. (A false certification is unlawful under the provisions of 18 U.S.C. 1001 (1970)).

(c) Labeling. An application, petition, or other request for action by the DOE or a State Office should be clearly labeled according to the nature of the action involved (e.g., “Application for Assignment”) both on the document and on the outside of the envelope in which the document is transmitted.

(d) Obligation to supply information. A person who files an application, petition, complaint, appeal or other request for action is under a continuing obligation during the proceeding to provide the DOE or a State Office with any new or newly discovered information that is relevant to that proceeding. Such information includes, but is not limited to, information regarding any other application, petition, complaint, appeal or request for action that is subsequently filed by that person with any DOE office or State Office.

(e) The same or related matters. A person who files an application, petition, complaint, appeal or other request for action by the DOE or a State Office shall state whether, to the best knowledge of that person, the same or related issue, act or transaction has been or presently is being considered or investigated by any DOE office, other Federal agency, department or instrumentality; or by a State Office, a state or municipal agency or court; or by any law enforcement agency; including, but not limited to, a consideration or investigation in connection with any proceeding described in this part. In addition, the person shall state whether contact has been made by the person or one acting on his behalf with any person who is employed by the DOE or any State Office with regard to the same issue, act or transaction or a related issue, act or transaction arising out of the same factual situation; the name of the person contacted; whether the contact was verbal or in writing; the nature and substance of the contact; and the date or dates of the contact.

(f) Request for confidential treatment. (1) If any person filing a document with the DOE or a State Office claims that some or all the information contained in the document is exempt from the mandatory public disclosure requirements of the Freedom of Information Act (5 U.S.C. 552 (1970)), is information referred to in 18 U.S.C. 1905 (1970), or is otherwise exempt by law from public disclosure, and if such person requests the DOE or a State Office not to disclose such information, such person shall file together with the document a second copy of the document from which has been deleted the information for which such person wishes to claim confidential treatment. The person shall indicate in the original document that it is confidential or contains confidential information and may file a statement specifying the justification for non-disclosure of the information for which confidential treatment is claimed. If the person states that the information comes within the exception in 5 U.S.C. 552(b)(4) for trade secrets and commercial or financial information, such person shall include a statement specifying why such information is privileged or confidential. If the person filing a document does not submit a second copy of the document with the confidential information deleted, the DOE or a State Office may assume that there is no objection to public disclosure of the document in its entirety.

(2) The DOE or a State Office retains the right to make its own determination with regard to any claim of confidentiality. Notice of the decision by the DOE or a State Office to deny such claim, in whole or in part, and an opportunity to respond shall be given to a person claiming confidentiality of information no less than five days prior to its public disclosure.

(g) Separate applications, petitions or requests. Each application, petition or request for DOE action shall be submitted as a separate document, even if the applications, petitions, or requests deal with the same or a related issue, act or transaction, or are submitted in connection with the same proceeding.

§ 205.10 Effective date of orders.

Any order issued by the DOE or a State Office under this chapter is effective as against all persons having actual notice thereof upon issuance, in accordance with its terms, unless and until it is stayed, modified, suspended, or rescinded. An order is deemed to be issued on the date, as specified in the order, on which it is signed by an authorized representative of the DOE or a State Office, unless the order provides otherwise.

§ 205.11 Order of precedence.

(a) If there is any conflict or inconsistency between the provisions of this part and any other provision of this chapter, the provisions of this part shall control with respect to procedure.

(b) Notwithstanding paragraph (a) of this section, subpart I of part 212 of this chapter shall control with respect to prenotification and reporting and subpart J of part 212 of this chapter shall control with respect to accounting and financial reporting requirements.

§ 205.12 Addresses for filing documents with the DOE.

(a) All applications, requests, petitions, appeals, reports, DOE or FEO forms, written communications and other documents to be submitted to or filed with the DOE National Office in accordance with this chapter shall be addressed as provided in this section. The DOE National Office has facilities for the receipt of transmissions via TWX and FAX. The FAX is a 3M full duplex 4 or 6 minute (automatic) machine.

FAX Numbers | TWX Numbers

(202) 254-6175 | (701) 822-9454

(202) 254-6461 | (701) 822-9459

(1) Documents for which a specific address and/or code number is not provided in accordance with paragraphs (a)(2) through (7) of this section, shall be addressed as follows: Department of Energy, Attn: (name of person to receive document, if known, or subject), Washington, DC 20461.

(2) Documents to be filed with the Office of Exceptions and Appeals, as provided in this part or otherwise, shall be addressed as follows. Office of Exceptions and Appeals, Department of Energy, Attn: (name of person to receive document, if known, and/or labeling as specified in § 205.9(c)), Washington, DC 20461.

(3) Documents to be filed with the Office of General Counsel, as provided in this part or otherwise, shall be addressed as follows: Office of the General Counsel, U.S. Department of Energy, Attn: (name of person to receive document, if known, and labeling as specified in § 205.9(c)), 1000 Independence Avenue, Washington, DC 20585.

(4) Documents to be filed with the Office of Private Grievances and Redress, as provided in this part or otherwise, shall be addressed as follows: Office of Private Grievances and Redress, Department of Energy, Attn: (name of person to receive document, if known and/or labeling as specified in § 205.9(c)), Washington, DC 20461.

(5) All other documents filed, except those concerning price (see paragraph (a)(6) of this section), those designated as DOE or FEO forms (see paragraph (a)(7) of this section), and “Surplus Product Reports” (see paragraph (a)(8) of this section), but including those pertaining to compliance and allocation (adjustment and assignment) of allocated products, are to be identified by one of the code numbers stated below and addressed as follows: Department of Energy, Code____, labeling as specified in § 205.9(c), Washington, DC 20461.

Code Numbers

Code

Product:

Crude oil | 10

Naphtha and gas oil | 15

Propane, butane and natural gasoline | 25

Other products | 30

Bunker fuel | 40

Residual fuel (nonutility) | 50

Motor gasoline | 60

Middle distillates | 70

Aviation fuels | 80

Submissions by specific entities:

Electric utilities | 45

Department of Defense | 55

(6) Documents pertaining to the price of covered products, except those to be submitted to other offices as provided in this part, shall be addressed to the Department of Energy, Code 1000, Attn: (name of person to receive document, if known, and/or labeling as specified in § 205.9(c)), Washington, DC 20461.

(7) Documents designated as DOE or FEO forms shall be submitted in accordance with the instructions stated in the form.

(8) “Surplus Product Reports” shall be submitted to the Department of Energy, Post Office Box 19407, Washington, DC 20036.

(9) Documents to be filed with the Director of Oil Imports, as provided in this part or otherwise, shall be addressed as follows: Director of Oil Imports, Department of Energy, P.O. Box 7414, Washington, DC 20044.

(10) Petitions for rulemaking to be filed with the Economic Regulatory Administration National Office shall be addressed as follows: Economic Regulatory Administration, Attn: Assistant Administrator for Regulations and Emergency Planning (labeled as “Petition for Rulemaking,”) 2000 M Street, N.W., Washington, DC 20461.

(b) All reports, applications, requests, notices, complaints, written communications and other documents to be submitted to or filed with an DOE Regional Office in accordance with this chapter shall be directed to one of the following addresses, as appropriate:

Region 1 Connecticut, Maine, Massachusetts, New Hampshire, Rhode Island, Vermont; Regional Office, Department of Energy, 150 Causeway Street, Boston, Massachusetts 02114. Region 2 New Jersey, New York, Puerto Rico, Virgin Islands; Regional Office, Department of Energy, 26 Federal Plaza, New York, New York 10007. Region 3 Delaware, District of Columbia, Maryland, Pennsylvania, Virginia, West Virginia; Regional Office, Department of Energy, Federal Office Building, 1421 Cherry Street, Philadelphia, Pennsylvania 19102. Region 4 Alabama, Canal Zone, Florida, Georgia, Kentucky, Mississippi, North Carolina, South Carolina; Regional Office, Department of Energy, 1655 Peachtree Street NW., Atlanta, Georgia 30309. Region 5 Illinois, Indiana, Michigan, Minnesota, Ohio, Wisconsin; Regional Office, Department of Energy, 175 West Jackson Street, Chicago, Illinois 60604. Region 6 Arkansas, Louisiana, New Mexico, Oklahoma, Texas; Regional Office, Department of Energy, 212 North Saint Paul Street, Dallas, Texas 75201. Region 7 Iowa, Kansas, Missouri, Nebraska; Regional Office, Department of Energy, Federal Office Building, P.O. Box 15000, 112 East 12th Street, Kansas City, Missouri 64106. Region 8 Colorado, Montana, North Dakota, South Dakota, Utah, Wyoming; Regional Office, Department of Energy, Post Office Box 26247, Belmar Branch, Denver, Colorado 80226. Region 9 American Samoa, Arizona, California, Guam, Hawaii, Nevada, Trust Territory of the Pacific Islands; Regional Office, Department of Energy, 111 Pine Street, San Francisco, California 94111. Region 10 Alaska, Idaho, Oregon, Washington; Regional Office, Department of Energy, Federal Office Building, 909 First Avenue, Room 3098, Seattle, Washington 98104.

(Emergency Petroleum Allocation Act of 1973, 15 U.S.C. 751 et seq., Pub. L. 93-159, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub. L. 94-385; Federal Energy Administration Act of 1974, 15 U.S.C. 787 et seq., Pub. L. 93-275, as amended, Pub. L. 94-332, Pub. L. 94-385, Pub. L. 95-70, and Pub. L. 95-91; Energy Policy and Conservation Act, 42 U.S.C. 6201 et seq., Pub. L. 94-163, as amended, Pub. L. 94-385, and Pub. L. 95-70; Department of Energy Organization Act, 42 U.S.C. 7101 et seq., Pub. L. 95-91; E.O. 11790, 39 FR 23185; E.O. 12009, 42 FR 46267)

[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36555, Aug. 21, 1975; 45 FR 37684, June 4, 1980]

§ 205.13 Where to file.

(a) Except as otherwise specifically provided in other subparts of this part, all documents to be filed with the ERA pursuant to this part shall be filed with the appropriate ERA Regional Office (unless otherwise specified in part 211 of this chapter), except that all documents shall be filed with the ERA National Office that relate to:

(1) The allocation and pricing of crude oil pursuant to subpart C of part 211 and part 212 of this chapter;

(2) Refinery yield controls pursuant to subpart C of part 211 of this chapter;

(3) The pricing of propane, butane and natural gasoline pursuant to part 212 of this chapter and the allocation of butane and natural gasoline pursuant to part 211 of this chapter;

(4) The allocation and pricing of middle distillate fuels pursuant to subpart G of part 211 and part 212 of this chapter, filed by electric utilities;

(5) The allocation and pricing of aviation fuel pursuant to subpart H of part 211 and part 212 of this chapter, filed by civil air carriers (except air taxi/commercial operators);

(6) The allocation and pricing of residual fuel oil pursuant to subpart I of part 211 and part 212 of this chapter, filed by electric utilities;

(7) The allocation and pricing of naphtha and gas oil pursuant to subpart J of part 211 and part 212 of this chapter;

(8) The allocation and pricing of other products pursuant to subpart K of part 211 and part 212 of this chapter;

(9) An application for an exemption under subpart E of this part; requests for a rulemaking proceeding under subpart L of this part or for the issuance of a ruling under subpart K of this part; and petitions to the Office of Private Grievances and Redress under subpart R of this part;

(10) The pricing of products pursuant to part 212 of this chapter, filed by a refiner; and

(11) The allocation of crude oil and other allocated products to meet Department of Defense needs pursuant to part 211 of this chapter.

(12) The allocation of crude oil and other allocated products to be utilized as feedstock in a synthetic natural gas plant, pursuant to § 211.29.

(13) Allocations, fee-paid and fee-exempt licenses issued pursuant to part 213 of this chapter.

(b) Applications by end-users and wholesale purchasers for an allocation under the state set-aside system in accordance with § 211.17 shall be filed with the appropriate State Office.

(c) Applications to a State Office or a DOE Regional Office shall be directed to the office located in the state or region in which the allocated product will be physically delivered. An applicant doing business in more than one state or region must apply separately to each State or region in which a product will be physically delivered, unless the State Offices or Regional Offices involved agree otherwise.

[39 FR 35489, Oct. 1, 1974, as amended at 39 FR 36571, Oct. 11, 1974; 39 FR 39022, Nov. 5, 1974; 40 FR 28446, July 7, 1975; 40 FR 36555, Aug. 21, 1975; 44 FR 60648, Oct. 19, 1979]

§ 205.14 Ratification of prior directives, orders, and actions.

All interpretations, orders, notices of probable violation or other directives issued, all proceedings initiated, and all other actions taken in accordance with part 205 as it existed prior to the effective date of this amendment, are hereby confirmed and ratified, and shall remain in full force and effect as if issued under this amended part 205, unless or until they are altered, amended, modified or rescinded in accordance with the provisions of this part.

§ 205.15 Public docket room.

There shall be established at the DOE National Office, 12th and Pennsylvania Avenue, NW., Washington, DC, a public docket room in which shall be made available for public inspection and copying:

(a) A list of all persons who have applied for an exception, an exemption, or an appeal, and a digest of each application;

(b) Each decision and statement setting forth the relevant facts and legal basis of an order, with confidential information deleted, issued in response to an application for an exception or exemption or at the conclusion of an appeal;

(c) The comments received during each rulemaking proceeding, with a verbatim transcript of the public hearing if such a public hearing was held; and

(d) Any other information required by statute to be made available for public inspection and copying, and any information that the DOE determines should be made available to the public.

§ 205.80 Purpose and scope.

(a) This subpart establishes the procedures for the filing of a formal request for an interpretation and for the consideration of such request. Responses, which may include verbal or written responses to general inquiries or to other than formal written requests for interpretation filed with the General Counsel or his delegate or a Regional Counsel, are not interpretations and merely provide general information.

(b) A request for interpretation that includes, or could be construed to include an application for an exception or an exemption may be treated solely as a request for interpretation and processed as such.

(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub. L. 94-385, Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended, Pub. L. 94-385, Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267)

[39 FR 35489, Oct. 1, 1974, as amended at 43 FR 14437, Apr. 6, 1978]

§ 205.81 What to file.

(a) A person filing under this subpart shall file a “Request for Interpretation,” which should be clearly labeled as such both on the request and on the outside of the envelope in which the request is transmitted, and shall be in writing and signed by the person filing the request. The person filing the request shall comply with the general filing requirements stated in § 205.9 in addition to the requirements stated in this subpart.

(b) If the person filing the request wishes to claim confidential treatment for any information contained in the request or other documents submitted under this subpart, the procedures set out in § 205.9(f) shall apply.

§ 205.82 Where to file.

A request for interpretation shall be filed with the General Counsel or his delegate or with the appropriate Regional Counsel at the address provided in § 205.12.

(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub. L. 94-385; Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended, Pub. L. 94-385; Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267)

[39 FR 35489, Oct. 1, 1974, as amended at 43 FR 14437, Apr. 6, 1978; 43 FR 17803, Apr. 26, 1978]

§ 205.83 Contents.

(a) The request shall contain a full and complete statement of all relevant facts pertaining to the circumstances, act or transaction that is the subject of the request and to the DOE action sought. Such facts shall include the names and addresses of all affected persons (if reasonably ascertainable) and a full discussion of the pertinent provisions and relevant facts contained in the documents submitted with the request. Copies of all relevant contracts, agreements, leases, instruments, and other documents shall be submitted with the request. When the request pertains to only one step of a larger integrated transaction, the facts, circumstances, and other relevant information pertaining to the entire transaction must be submitted.

(b) The request for interpretation shall include a discussion of all relevant authorities, including, but not limited to, DOE rulings, regulations, interpretations and decisions on appeals and exceptions relied upon to support the particular interpretation sought therein.

§ 205.84 DOE evaluation.

(a) Processing. (1) The DOE may initiate an investigation of any statement in a request and utilize in its evaluation any relevant facts obtained by such investigation. The DOE may accept submissions from third persons relevant to any request for interpretation provided that the person making the request is afforded an opportunity to respond to all third person submissions. In evaluating a request for interpretation, the DOE may consider any other source of information. The DOE on its own initiative may convene a conference, if, in its discretion, it considers that such conference will advance its evaluation of the request.

(2) The DOE shall issue its interpretation on the basis of the information provided in the request, unless that information is supplemented by other information brought to the attention of the General Counsel or a Regional Counsel during the proceeding. The interpretation shall, therefore, depend for its authority on the accuracy of the factual statement and may be relied upon only to the extent that the facts of the actual situation correspond to those upon which the interpretation was based.

(3) If the DOE determines that there is insufficient information upon which to base a decision and if upon request additional information is not submitted by the person requesting the interpretation, the DOE may refuse to issue an interpretation.

(b) Criteria. (1) The DOE shall base an interpretation on the FEA and EPAA and the regulations and published rulings of the DOE as applied to the specific factual situation.

(2) The DOE shall take into consideration previously issued interpretations dealing with the same or a related issue.

§ 205.85 Decision and effect.

(a) An interpretation may be issued after consideration of the request for interpretation and other relevant information received or obtained during the proceeding.

(b) The interpretation shall contain a statement of the information upon which it is based and a legal analysis of and conclusions regarding the application of rulings, regulations and other precedent to the situation presented in the request.

(c) Only those persons to whom an interpretation is specifically addressed and other persons upon whom the DOE serves the interpretation and who are directly involved in the same transaction or act may rely upon it. No person entitled to rely upon an interpretation shall be subject to civil or criminal penalties stated in subpart P of this part for any act taken in reliance upon the interpretation, notwithstanding that the interpretation shall thereafter be declared by judicial or other competent authority to be invalid.

(d) An interpretation may be rescinded or modified at any time. Rescission or modification may be effected by notifying persons entitled to rely on the interpretation that it is rescinded or modified. This notification shall include a statement of the reasons for the recision or modification and, in the case of a modification, a restatement of the interpretation as modified.

(e) An interpretation is modified by a subsequent amendment to the regulations or ruling to the extent that it is inconsistent with the amended regulation or ruling.

(f)(1) Any person aggrieved by an interpretation may submit a petition for reconsideration to the General Counsel within 30 days of service of the interpretation from which the reconsideration is sought. There has not been an exhaustion of administrative remedies until a period of 30 days from the date of service of the interpretation has elapsed without receipt by the General Counsel of a petition for reconsideration or, if a petition for reconsideration of the interpretation has been filed in a timely manner, until that petition has been acted on by the General Counsel. However, a petition to which the General Counsel does not respond within 60 days of the date of receipt thereof, or within such extended time as the General Counsel may prescribe by written notice to the petitioner concerned within that 60 day period, shall be considered denied.

(2) A petition for reconsideration may be summarily denied if—

(i) It is not filed in a timely manner, unless good cause is shown; or

(ii) It is defective on its face for failure to state, and to present facts and legal argument in support thereof, that the interpretation was erroneous in fact or in law, or that it was arbitrary or capricious.

(3) The General Counsel may deny any petition for reconsideration if the petitioner does not establish that—

(i) The petition was filed by a person aggrieved by an interpretation;

(ii) The interpretation was erroneous in fact or in law; or

(iii) The interpretation was arbitrary or capricious. The denial of a petition shall be a final order of which the petitioner may seek judicial review.

(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub. L. 94-385, Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended, Pub. L. 94-385, Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267)

[39 FR 35489, Oct. 1, 1974, as amended at 43 FR 14437, Apr. 6, 1978]

§ 205.86 Appeal.

There is no administrative appeal of an interpretation.

(Emergency Petroleum Allocation Act of 1973, Pub. L. 93-159, as amended, Pub. L. 93-511, Pub. L. 94-99, Pub. L. 94-133, Pub. L. 94-163, and Pub. L. 94-385, Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended, Pub. L. 94-385, Energy Policy and Conservation Act, Pub. L. 94-163, as amended, Pub. L. 94-385; E.O. 11790, 39 FR 23185; Department of Energy Organization Act, Pub. L. 95-91; E.O. 12009, 42 FR 46267)

[43 FR 14437, Apr. 6, 1978]

§ 205.150 Purpose and scope.

This subpart establishes the criteria for the issuance of interpretative rulings by the General Counsel. All rulings shall be published in the Federal Register. Any person is entitled to rely upon such ruling, to the extent provided in this subpart.

§ 205.151 Criteria for issuance.

(a) A ruling may be issued, in the discretion of the General Counsel, whenever there have been a substantial number of inquiries with regard to similar factual situations or a particular section of the regulations.

(b) The General Counsel may issue a ruling whenever it is determined that it will be of assistance to the public in applying the regulations to a specific situation.

§ 205.152 Modification or rescission.

(a) A ruling may be modified or rescinded by:

(1) Publication of the modification or rescission in the Federal Register; or

(2) A rulemaking proceeding in accordance with subpart L of this part.

(b) Unless and until a ruling is modified or rescinded as provided in paragraph (a) of this section, no person shall be subject to the sanctions or penalties stated in subpart P of this part for actions taken in reliance upon the ruling, notwithstanding that the ruling shall thereafter be declared by judicial or other competent authority to be invalid. Upon such declaration, no person shall be entitled to rely upon the ruling.

§ 205.153 Comments.

A written comment on or objection to a published ruling may be filed at any time with the General Counsel at the address specified in § 205.12.

§ 205.154 Appeal.

There is no administrative appeal of a ruling.

§ 205.170 Purpose and scope.

This subpart establishes the procedures for requesting and conducting a DOE conference, hearing, or public hearing. Such proceedings shall be convened in the discretion of the DOE, consistent with the requirements of the FEAA.

§ 205.171 Conferences.

(a) The DOE in its discretion may direct that a conference be convened, on its own initiative or upon request by a person, when it appears that such conference will materially advance the proceeding. The determination as to who may attend a conference convened under this subpart shall be in the discretion of the DOE, but a conference will usually not be open to the public.

(b) A conference may be requested in connection with any proceeding of the DOE by any person who might be aggrieved by that proceeding. The request may be made in writing or verbally, but must include a specific showing as to why such conference will materially advance the proceeding. The request shall be addressed to the DOE office that is conducting the proceeding.

(c) A conference may only be convened after actual notice of the time, place, and nature of the conference is provided to the person who requested the conference.

(d) When a conference is convened in accordance with this section, each person may present views as to the issue or issues involved. Documentary evidence may be presented at the conference, but will be treated as if submitted in the regular course of the proceedings. A transcript of the conference will not usually be prepared. However, the DOE in its discretion may have a verbatim transcript prepared.

(e) Because a conference is solely for the exchange of views incident to a proceeding, there will be no formal reports or findings unless the DOE in its discretion determines that such would be advisable.

§ 205.172 Hearings.

(a) The DOE in its discretion may direct that a hearing be convened on its own initiative or upon request by a person, when it appears that such hearing will materially advance the proceedings. The determination as to who may attend a hearing convened under this subpart shall be in the discretion of DOE, but a hearing will usually not be open to the public. Where the hearing involves a matter arising under part 213, the Director of Oil Imports shall be notified as to its time and place, in order that he or his representative may present views as to the issue or issues involved.

(b) A hearing may only be requested in connection with an application for an exception or an appeal. Such request may be by the applicant, appellant, or any other person who might be aggrieved by the DOE action sought. The request shall be in writing and shall include a specific showing as to why such hearing will materially advance the proceeding. The request shall be addressed to the DOE office that is considering the application for an exception or the appeal.

(c) The DOE will designate an agency official to conduct the hearing, and will specify the time and place for the hearing.

(d) A hearing may only be convened after actual notice of the time, place, and nature of the hearing is provided both to the applicant or appellant and to any other person readily identifiable by the DOE as one who will be aggrieved by the DOE action involved. The notice shall include, as appropriate:

(1) A statement that such person may participate in the hearing; or

(2) A statement that such person may request a separate conference or hearing regarding the application or appeal.

(e) When a hearing is convened in accordance with this section, each person may present views as to the issue or issues involved. Documentary evidence may be presented at the hearing, but will be treated as if submitted in the regular course of the proceedings. A transcript of the hearing will not usually be prepared. However, the DOE in its discretion may have a verbatim transcript prepared.

(f) The official conducting the hearing may administer oaths and affirmations, rule on the presentation of information, receive relevant information, dispose of procedural requests, determine the format of the hearing, and otherwise regulate the course of the hearing.

(g) Because a hearing is solely for the exchange of views incident to a proceeding, there will be no formal reports or findings unless the DOE in its discretion determines that such would be advisable.

[39 FR 35489, Oct. 1, 1974, as amended at 40 FR 36557, Aug. 21, 1975]

§ 205.173 Public hearings.

(a) A public hearing shall be convened incident to a rulemaking:

(1) When the proposed rule or regulation is likely to have a substantial impact on the Nation's economy or large numbers of individuals or businesses; or

(2) When the DOE determines that a public hearing would materially advance the consideration of the issue. A public hearing may be requested by any interested person in connection with a rulemaking proceeding, but shall only be convened on the initiative of the DOE unless otherwise required by statute.

(b) A public hearing may be convened incident to any proceeding when the DOE in its discretion determines that such public hearing would materially advance the consideration of the issue.

(c) A public hearing may only be convened after publication of a notice in the Federal Register, which shall include a statement of the time, place, and nature of the public hearing.

(d) Interested persons may file a request to participate in the public hearing in accordance with the instructions in the notice published in the Federal Register. The request shall be in writing and signed by the person making the request. It shall include a description of the person's interest in the issue or issues involved and of the anticipated content of the presentation. It shall also contain a statement explaining why the person would be an appropriate spokesperson for the particular view expressed.

(e) The DOE shall appoint a presiding officer to conduct the public hearing. An agenda shall be prepared that shall provide, to the extent practicable, for the presentation of all relevant views by competent spokespersons.

(f) A verbatim transcript shall be made of the hearing. The transcript, together with any written comments submitted in the course of the proceeding, shall be made available for public inspection and copying in the public docket room, as provided in § 205.15.

(g) The information presented at the public hearing, together with the written comments submitted and other relevant information developed during the course of the proceeding, shall provide the basis for the DOE decision.

§ 205.190 Purpose and scope.

(a) This subpart establishes the procedures for determining the nature and extent of violations of the DOE regulations in parts 210, 211, and 212 and the procedures for issuance of a Notice of Probable Violation, a Proposed Remedial Order, a Remedial Order, an Interim Remedial Order for Immediate Compliance, a Remedial Order for Immediate Compliance, a Notice of Probable Disallowance, a Proposed Order of Disallowance, an Order of Disallowance, or a Consent Order. Nothing in these regulations shall affect the authority of DOE enforcement officials in coordination with the Department of Justice to initiate appropriate civil or criminal enforcement actions in court at any time.

(b) When any report required by the ERA or any audit or investigation discloses, or the ERA otherwise discovers, that there is reason to believe a violation of any provision of this chapter, or any order issued thereunder, has occurred, is continuing or is about to occur, the ERA may conduct an inquiry to determine the nature and extent of the violation. A Remedial Order or Order of Disallowance may be issued thereafter by the Office of Hearings and Appeals. The ERA may commence enforcement proceedings by serving a Notice of Probable Violation, a Notice of Probable Disallowance, a Proposed Remedial Order, a Proposed Order of Disallowance, or an Interim Remedial Order for Immediate Compliance.

§ 205.191 [Reserved]

§ 205.192 Proposed remedial order.

(a) If the ERA finds, after the 30-day or other period authorized for reply to the Notice of Probable Violation, that a violation has occurred, is continuing, or is about to occur, it may issue a Proposed Remedial Order, which shall set forth the relevant facts and law.

(b) The ERA may issue a Proposed Remedial Order at any time it finds that a violation has occurred, is continuing, or is about to occur even if it has not previously issued a Notice of Probable Violation.

(c) The ERA shall serve a copy of the Proposed Remedial Order upon the person to whom it is directed. The ERA shall promptly publish a notice in the Federal Register which states the person to whom the Proposed Remedial Order is directed, his address, and the products, dollar amounts, time period, and geographical area specified in the Proposed Remedial Order. The notice shall indicate that a copy of the Proposed Remedial Order with confidential information, if any, deleted may be obtained from the ERA and that within 15 days after the date of publication any aggrieved person may file a Notice of Objection with the Office of Hearings and Appeals of accordance with § 205.193. The ERA shall mail copies of the Federal Register notice to all readily identifiable persons who are likely to be aggrieved by issuance of the Proposed Remedial Order as a final order.

(d) The Proposed Remedial Order shall set forth the proposed findings of fact and conclusions of law upon which it is based. It shall also include a discussion of the relevant authorities which support the position asserted, including rules, regulations, rulings, interpretations and previous decisions issued by DOE or its predecessor agencies. The Proposed Remedial Order shall be accompanied by a declaration executed by the DOE employee primarily knowledgeable about the facts of the case stating that, to the best of declarant's knowledge and belief, the findings of fact are correct.

(e) The ERA may amend or withdraw a Proposed Remedial Order at its discretion prior to the date of service of a Statement of Objections in that proceeding. The date of service of the amended documents shall be considered the date of service of the Proposed Remedial Order in calculating the time periods specified in this part 205.

§ 205.192A Burden of proof.

(a) In a Proposed Remedial Order proceeding the ERA has the burden of establishing a prima facie case as to the validity of the findings of fact and conclusions of law asserted therein. The ERA shall be deemed to meet this burden by the service of a Proposed Remedial Order that meets the requirements of § 205.192(d) and any supplemental information that may be made available under § 205.193A.

(b) Once a prima facie case has been established, a person who objects to a finding of fact or conclusion of law in the Proposed Remedial Order has the burden of going forward with the evidence. Furthermore, the proponent of additional factual representations has the burden of going forward with the evidence.

(c) Unless otherwise specified by the Director of the Office of Hearings and Appeals or his designee, the proponent of an order or a motion or additional factual representations has the ultimate burden of persuasion.

§ 205.193 Notice of Objection.

(a) Within 15 days after publication of the notice of a Proposed Remedial Order in the Federal Register any aggrieved person may file a Notice of Objection to the Proposed Remedial Order with the Office of Hearings and Appeals. The Notice shall be filed in duplicate, shall briefly describe how the person would be aggrieved by issuance of the Proposed Remedial Order as a final order and shall state the person's intention to file a Statement of Objections. No confidential information shall be included in a Notice of Objection. The DOE shall place one copy of the Notice in the Office of Hearings and Appeals Public Docket Room.

(b) A person who fails to file a timely Notice of Objection shall be deemed to have admitted the findings of fact and conclusions of law as stated in the Proposed Remedial Order. If a Notice of Objection is not filed as provided by paragraph (a) of this section, the Proposed Remedial Order may be issued as a final order.

(c) A person who files a Notice of Objection shall on the same day serve a copy of the Notice upon the person to whom the Proposed Remedial Order is directed, the DOE Office that issued the Proposed Remedial Order, and the DOE Assistant General Counsel for Administrative Litigation.

(d) The Notice shall include a certification of compliance with the provisions of this section, the names and addresses of each person served with a copy of the Notice, and the date and manner of service.

(e) If no person files a timely Notice of Objection, ERA may request the Office of Hearings and Appeals to issue the Proposed Remedial Order as a final Remedial Order.

(f) In order to exhaust administrative remedies with respect to a Remedial Order proceeding, a person must file a timely Notice of Objection and Statement of Objections with the Office of Hearings and Appeals.

§ 205.193A Submission of ERA supplemental information.

Within 20 days after service of a Notice of Objection to a Proposed Remedial Order the ERA may serve, upon the person to whom the Proposed Remedial Order was directed, supplemental information relating to the calculations and determinations which support the findings of fact set forth in the Proposed Remedial Order.

§ 205.194 Participants; official service list.

(a) Upon receipt of a Notice of Objection, the Office of Hearings and Appeals shall publish a notice in the Federal Register which states the person to whom the Proposed Remedial Order is directed, his address and the products, dollar amounts, time period, and geographical area specified in the Proposed Remedial Order. The notice shall state that any person who wishes to participate in the proceeding must file an appropriate request with the Office of Hearings and Appeals.

(b) The Office that issued the Proposed Remedial Order and the person to whom the Order is directed shall be considered participants before the Office of Hearings and Appeals at all stages of an enforcement proceeding. Any other person whose interest may be affected by the proceeding may file a request to participate in the proceeding with the Office of Hearings and Appeals within 20 days after publication of the notice referred to in paragraph (a) of this section. The request shall contain

(1) The person's name, address, and telephone number and similar information concerning his duly authorized representative, if any;

(2) A detailed description of the person's interest in the proceeding;

(3) The specific reasons why the person's active involvement in the proceeding will substantially contribute to a complete resolution of the issues to be considered in the proceeding;

(4) A statement of the position which the person intends to adopt in the proceeding; and

(5) A statement of the particular aspects of the proceeding, e.g. oral argument, submission of briefs, or discovery, in which the person wishes to actively participate.

(c) After considering the requests submitted pursuant to paragraph (b) of this section, the Office of Hearings and Appeals shall determine those persons who may participate on an active basis in the proceeding and the nature of their participation. Participants with similar interests may be required to consolidate their submissions and to appear in the proceeding through a common representative.

(d) Within 30 days after publication of the notice referred to in paragraph (a) of this section, the Office of Hearings and Appeals shall prepare an official service list for the proceeding. Within the same 30 day period the Office of Hearings and Appeals shall mail the official service list to all persons who filed requests to participate. For good cause shown a person may be placed on the official service list as a non-participant, for the receipt of documents only. An opportunity shall be afforded to participants to oppose the placement of a non-participant on the official service list.

(e) A person requesting to participate after the period for submitting requests has expired must show good cause for failure to file a request within the prescribed time period.

(f) The Office of Hearings and Appeals may limit the nature of a person's participation in the proceeding, if it finds that the facts upon which the person's request was based have changed or were incorrect when stated or that the person has not been actively participating or has engaged in disruptive or dilatory conduct. The action referred to in this provision shall be taken only after notice and an opportunity to be heard are afforded.

§ 205.195 Filing and service of all submissions.

(a)(1) Statements of Objections, Responses to such Statements, and any motions or other documents filed in connection with a proceeding shall meet the requirements of § 205.9 and shall be filed with the Office of Hearings and Appeals in accordance with § 205.4. Unless otherwise specified, any participant may file a response to a motion within five days of service.

(2) All documents shall be filed in duplicate, unless they contain confidential information, in which case they must be filed in triplicate.

(3) If a person claims that any portion of a document which he is filing contains confidential information, such information should be deleted from two of the three copies which are filed. One copy from which confidential information has been deleted will be placed in the Office of Hearings and Appeals Public Docket Room.

(b)(1) Persons other than DOE offices shall on the date a submission is filed serve each person on the official service list. Service shall be made in accordance with § 205.7 and may also be made by deposit in the regular United States mail, properly stamped and addressed, when accompanied by proof of service consisting of a certificate of counsel or an affidavit of the person making the service. If any filing arguably contains confidential information, a person may serve copies with the confidential information deleted upon all persons on the official service list except DOE offices, which shall be served both an original filing and one with deletions.

(2) A DOE office shall on the date it files a submission serve all persons on the official service list, unless the filing arguably contains confidential information. In that case the DOE office shall notify the person to whom the information relates of the opportunity to identify and delete the confidential information. The DOE Office may delay the service of a submission containing arguably confidential information upon all persons other than the possessor of the confidential information and other DOE offices up to 14 days. The possessor of the confidential information shall serve the filing with any deletions upon all persons on the official service list within such time period.

(c) Any filing made under this section shall include a certification of compliance by the filer with the provisions of this subpart. The person serving a document shall file a certificate of service, which includes the date and manner of service for each person on the official service list.

§ 205.196 Statement of objections.

(a) A person who has filed a Notice of Objection shall file a Statement of Objections to a Proposed Remedial Order within 40 days after service of the Notice of Objection. A request for an extension of time for filing must be submitted in writing and may be granted for good cause shown.

(b) The Statement of Objections shall set forth the bases for the objections to the issuance of the Proposed Remedial Order as a final order, including a specification of the issues of fact or law which the person intends to contest in any further proceeding involving the compliance matter which is the subject of the Proposed Remedial Order. The Statement shall set forth the findings of fact contained in the Proposed Remedial Order which are alleged to be erroneous, the factual basis for such allegations, and any alternative findings which are sought. The Statement shall include a discussion of all relevant authorities which support the position asserted. The Statement may include additional factual representations which are not referred to in the Proposed Remedial Order and which the person contends are material and relevant to the compliance proceeding. For each additional factual representation which the person asserts should be made, the Statement shall include reasons why the factual representation is relevant and material, and the manner in which its validity is or will be established. The person shall also specify the manner in which each additional issue of fact was raised in any prior administrative proceeding which led to issuance of the Proposed Remedial Order, or the reasons why it was not raised.

(c) A Statement of Objections that is filed by the person to whom a Proposed Remedial Order is directed shall include a copy of any relevant Notice of Probable Violation, each Response thereto, the Proposed Remedial Order, and any relevant work papers or supplemental information previously provided by ERA. Copies of this material must also be included with the copy of the Statement of Objections served upon the DOE Assistant General Counsel for Administrative Litigation. All other persons on the official service list must be notified that such materials are available from the notifier upon written request.

§ 205.197 Response to statement of objections; reply.

(a) Within 30 days after service of a Statement of Objections each participant may file a Response. If any motions are served with the Statement of Objections, a participant shall have 30 days from the date of service to respond to such submissions, notwithstanding any shorter time periods otherwise required in this subpart. The Response shall contain a full discussion of the position asserted and a discussion of the legal and factual bases which support that position. The Response may also contain a request that any issue of fact or law advanced in a Statement of Objections be dismissed. Any such request shall be accompanied by a full discussion of the reasons supporting the dismissal.

(b) A participant may submit a Reply to any Response within 10 days after the date of service of the Response.

§ 205.198 Discovery.

(a) If a person intends to file a Motion for Discovery, he must file it at the same time that he files his Statement of Objections or at the same time he files his Response to a Statement of Objections, whichever is earlier. All Motions for Discovery and related filings must be served upon the person to whom the discovery is directed. If the person to whom the discovery is directed is not on the official service list, the documents served upon him shall include a copy of this section, the address of the Office of Hearings and Appeals and a statement that objections to the Motion may be filed with the Office of Hearings and Appeals.

(b) A Motion for Discovery may request that:

(1) A person produce for inspection and photocopying non-privileged written material in his possession;

(2) A person respond to written interrogatories;

(3) A person admit to the genuineness of any relevant document or the truth of any relevant fact; or

(4) The deposition of a material witness be taken.

(c) A Motion for Discovery shall set forth the reasons why the particular discovery is necessary in order to obtain relevant and material evidence and shall explain why such discovery would not unduly delay the proceeding.

(d) Within 20 days after a Motion for Discovery is served, a participant or a person to whom the discovery is directed may file a request that the Motion be denied in whole or in part, stating the reasons which support the request.

(e) Discovery may be conducted only pursuant to an Order issued by the Office of Hearings and Appeals. A Motion for Discovery will be granted if it is concluded that discovery is necessary for the party to obtain relevant and material evidence and that discovery will not unduly delay the proceeding. Depositions will be permitted if a convincing showing is made that the participant cannot obtain the material sought through one of the other discovery means specified in paragraph (b) of this section.

(f) The Director of the Office of Hearings and Appeals or his designee may issue subpoenas in accordance with § 205.8 in support of Discovery Orders, except that § 205.8 (h)(2), (3), and (4) shall not apply to such subpoenas.

(g) The Office of Hearings and Appeals may order that any direct expenses incurred by a person to produce evidence pursuant to a Motion for Discovery be charged to the person who filed the Motion.

(h)(1) If a person fails to comply with an order relating to discovery, the Office of Hearings and Appeals may order appropriate sanctions.

(2) It shall be the duty of aggrieved participants to request that appropriate relief be fashioned in such situations.

(i) Any order issued by the Office of Hearings and Appeals with respect to discovery shall be subject to further administrative review or appeal only upon issuance of the determination referred to in § 205.199B.

§ 205.198A Protective order.

A participant who has unsuccessfully attempted in writing to obtain information that another participant claims is confidential may file a Motion for Discovery and Protective Order. This motion shall meet the requirements of § 205.198 and shall specify the particular confidential information that the movant seeks and the reasons why the information is necessary to adequately present the movant's position in the proceeding. A copy of the written request for information, a certification concerning when and to whom it was served and a copy of the response, if any, shall be appended to the motion. The motion must give the possessor of the information notice that a Response to the Motion must be filed within ten days. The Response shall specify the safeguards, if any, that should be imposed if the information is ordered to be released. The Office of Hearings and Appeals may issue a Protective Order upon consideration of the Motion and the Response.

§ 205.199 Evidentiary hearing.

(a) Filing Requirements. At the time a person files a Statement of Objections he may also file a motion requesting an evidentiary hearing be convened. A motion requesting an evidentiary hearing may be filed by any other participant within 30 days after that participant is served with a Statement of Objections.

(b) Contents of Motion for Evidentiary Hearing. A Motion for Evidentiary Hearing shall specify each disputed issue of fact and the bases for the alternative findings the movant asserts. The movant shall also describe the manner in which each disputed issue of fact was raised in any prior administrative proceeding which led to issuance of the Proposed Remedial Order, or why it was not raised. The movant shall with respect to each disputed or alternative finding of fact:

(1) As specifically as possible, identify the witnesses whose testimony is required;

(2) State the reasons why the testimony of the witnesses is necessary; and

(3) State the reasons why the asserted position can be effectively established only through the direct questioning of witnesses at an evidentiary hearing.

(c) Response to Motion for Evidentiary Hearing. Within 20 days after service of any Motion for Evidentiary Hearing, the Office that issued the Proposed Remedial Order shall, and any other participant may file a Response with the Office of Hearings and Appeals. The Response shall specify:

(1) Each particular factual representation which is accepted as correct for purposes of the proceeding;

(2) Each particular factual representation which is denied;

(3) Each particular factual representation which the participant is not in a position to accept or deny;

(4) Each particular factual representation which is not accepted and the participant wishes proven by the submission of evidence;

(5) Each particular factual representation which the participant is prepared to dispute through the testimony of witnesses or the submission of verified documents; and

(6) Each particular factual representation which the participant asserts should be dismissed as immaterial or irrelevant.

(d) Prehearing Conferences. After all submissions with respect to a Motion for Evidentiary Hearing are filed, the Office of Hearings and Appeals may conduct conferences or hearings to resolve differences of view among the participants.

(e) Decision on Motion for Evidentiary Hearing. After considering all relevant information received in connection with the Motion, the Office of Hearings and Appeals shall enter an Order. In the Order the Office of Hearings and Appeals shall direct that an evidentiary hearing be convened if it concludes that a genuine dispute exists as to relevant and material issues of fact and an evidentiary hearing would substantially assist it in making findings of fact in an effective manner. If the Motion for Evidentiary Hearing is granted in whole or in part, the Order shall specify the parties to the hearing, any limitations on the participation of a party, and the issues of fact set forth for the evidentiary hearing. The Order may also require parties that have adopted similar positions to consolidate their presentations and to appear at the evidentiary hearing through a common representative. If the Motion is denied, the Order may allow the movant to file affidavits and other documents in support of his asserted findings of fact.

(f) Review of Decision. The Order of the Office of Hearings and Appeals with respect to a Motion for Evidentiary Hearing shall be subject to further administrative review or appeal only upon issuance of the determination referred to in § 205.199B.

(g) Conduct of Evidentiary Hearing. All evidentiary hearings convened pursuant to this section shall be conducted by the Director of the Office of Hearings and Appeals or his designee. At any evidentiary hearing the parties shall have the opportunity to present material evidence which directly relates to a particular issue of fact set forth for hearing. The presiding officer shall afford the parties an opportunity to cross examine all witnesses. The presiding officer may administer oaths and affirmations, rule on objections to the presentation of evidence, receive relevant material, rule on any motion to conform the Proposed Remedial Order to the evidence presented, rule on motions for continuance, dispose of procedural requests, determine the format of the hearing, modify any order granting a Motion for Evidentiary Hearing, direct that written motions or briefs be provided with respect to issues raised during the course of the hearing, issue subpoenas, and otherwise regulate the conduct of the hearing. The presiding officer may take reasonable measures to exclude duplicative material from the hearing, and may place appropriate limitations on the number of witnesses that may be called by a party. The presiding officer may also require that evidence be submitted through affidavits or other documents if the direct testimony of witnesses will unduly delay the orderly progress of the hearing and would not contribute to resolving the issues involved in the hearing. The provisions of § 205.8 which relate to subpoenas and witness fees shall apply to any evidentiary hearing, except that subsection § 205.8(h) (2), (3), and (4) shall not apply.

§ 205.199A Hearing for the purpose of oral argument only.

(a) A participant is entitled upon timely request to a hearing to present oral argument with respect to the Proposed Remedial Order, whether or not an evidentiary hearing is requested or convened. A participant's request shall normally be considered untimely, if made more than 10 days after service of a determination regarding any motion filed by the requestor or, if no motions were filed by him, if made after the date for filing his Reply or his Response to a Statement of Objections.

(b) If an evidentiary hearing is convened, and a hearing for oral argument is requested, the Office of Hearings and Appeals shall determine whether the hearing for oral argument shall be held in conjunction with the evidentiary hearing or at a separate time.

(c) A hearing for the purpose of receiving oral argument will generally be conducted only after the issues involved in the proceeding have been delineated, and any written material which the Office of Hearings and Appeals has requested to supplement a Statement of Objections or Responses has been submitted. The presiding officer may require further written submissions in support of any position advanced or issued at the hearing, and shall allow responses any such submissions.

§ 205.199B Remedial order.

(a) After considering all information received during the proceeding, the Director of the Office of Hearings and Appeals or his designee may issue a final Remedial Order. The Remedial Order may adopt the findings and conclusions contained in the Proposed Remedial Order or may modify or rescind any such finding or conclusion to conform the Order to the evidence or on the basis of a determination that the finding or conclusion is erroneous in fact or law or is arbitrary or capricious. In the alternative, the Office of Hearings and Appeals may determine that no Remedial Order should be issued or may remand all or a portion of the Proposed Remedial Order to the issuing DOE office for further consideration or modification. Every determination made pursuant to this section shall state the relevant facts and legal bases supporting the determination.

(b) The DOE shall serve a copy of any determination issued pursuant to paragraph (a) of this section upon the person to whom it is directed, any person who was served with a copy of the Proposed Remedial Order, the DOE office that issued the Proposed Remedial Order, the DOE Assistant General Counsel for Administrative Litigation and any other person on the official service list. Appropriate deletions may be made in the determinations to ensure that confidentiality of information protected from disclosure under 18 U.S.C. 1905 and 5 U.S.C. 552. A copy of the determination with appropriate deletions to protect confidential and proprietary data shall be placed in the Office of Hearings and Appeals Public Docket Room.

§ 205.199C Appeals of remedial order to FERC.

(a) The person to whom a Remedial Order is issued by the Office of Hearings and Appeals may file an administrative appeal if the Remedial Order proceeding was initiated by a Notice of Probable Violation issued after October 1, 1977, or, in those situations in which no Notice of Probable Violation was issued, if the proceeding was initiated by a Proposed Remedial Order issued after October 1, 1977.

(b) Any such appeal must be initiated within 30 days after service of the Order by giving written notice to the Office of Hearings and Appeals that the person to whom a Remedial Order is issued wishes to contest the Order.

(c) The Office of Hearings and Appeals shall promptly advise the Federal Energy Regulatory Commission of its receipt of a notice described in paragraph (b) of this section.

(d) The Office of Hearings and Appeals may, on a case by case basis, set reasonable time limits for the Federal Energy Regulatory Commission to complete its action on such an appeal proceeding.

(e) In order to exhaust administrative remedies, a person who is entitled to appeal a Remedial Order issued by the Office of Hearings and Appeals must file a timely appeal and await a decision on the merits. Any Remedial Order that is not appealed within the 30-day period shall become effective as a final Order of the DOE and is not subject to review by any court.

§§ 205.199D-205.199E [Reserved]

§ 205.199F Ex parte communications.

(a) No person who is not employed or otherwise supervised by the Office of Hearings and Appeals shall submit ex parte communications to the Director or any person employed or otherwise supervised by the Office with respect to any matter involved in Remedial Order or Order of Disallowance proceedings.

(1) Ex parte communications include any ex parte oral or written communications relative to the merits of a Proposed Remedial Order, Interim Remedial Order for Immediate Compliance, or Proposed Order of Disallowance proceeding pending before the Office of Hearings and Appeals. The term shall not, however, include requests for status reports, inquiries as to procedures, or the submission of proprietary or confidential information. Notice that proprietary or confidential submissions have been made shall be given to all persons on the official service list.

(b) If any communication occurs that violates the provisions of this section, the Office of Hearings and Appeals shall promptly make the substance of the communication available to the public and serve a copy of a written communication or a memorandum summarizing an oral communication to all participants in the affected proceeding. The Office of Hearings and Appeals may also take any other appropriate action to mitigate the adverse impact to any person whose interest may be affected by the ex parte contact.

§ 205.199G Extension of time; Interim and Ancillary Orders.

The Director of the Office of Hearings and Appeals or his designee may permit upon motion any document or submission referred to in this subpart other than appeals to FERC to be amended or withdrawn after it has been filed or to be filed within a time period different from that specified in this subpart. The Director or his designee may upon motion or on his own initiative issue any interim or ancillary Orders, reconsider any determinations, or make any rulings or determinations that are deemed necessary to ensure that the proceedings specified in this subpart are conducted in an appropriate manner and are not unduly delayed.

§ 205.199H Actions not subject to administrative appeal.

A Notice of Probable Violation, Notice of Proposed Disallowance, Proposed Remedial Order or Interim Remedial Order for Immediate Compliance issued pursuant to this subpart shall not be an action from which there may be an administrative appeal pursuant to subpart H. In addition, a determination by the Office of Hearings and Appeals that a Remedial Order, an Order of Disallowance, or a Remedial Order for Immediate Compliance should not be issued shall not be appealable pursuant to subpart H.

§ 205.199I Remedies.

(a) A Remedial Order, a Remedial Order for Immediate Compliance, an Order of Disallowance, or a Consent Order may require the person to whom it is directed to roll back prices, to make refunds equal to the amount (plus interest) charged in excess of those amounts permitted under DOE Regulations, to make appropriate compensation to third persons for administrative expenses of effectuating appropriate remedies, and to take such other action as the DOE determines is necessary to eliminate or to compensate for the effects of a violation or any cost disallowance pursuant to § 212.83 or § 212.84. Such action may include a direction to the person to whom the Order is issued to establish an escrow account or take other measures to make refunds directly to purchasers of the products involved, notwithstanding the fact that those purchasers obtained such products from an intermediate distributor of such person's products, and may require as part of the remedy that the person to whom the Order is issued maintain his prices at certain designated levels, notwithstanding the presence or absence of other regulatory controls on such person's prices. In cases where purchasers cannot be reasonably identified or paid or where the amount of each purchaser's overcharge is incapable of reasonable determination, the DOE may refund the amounts received in such cases directly to the Treasury of the United States on behalf of such purchasers.

(b) The DOE may, when appropriate, issue final Orders ancillary to a Remedial Order, Remedial Order for Immediate Compliance, Order of Disallowance, or Consent Order requiring that a direct or indirect recipient of a refund pass through, by such means as the DOE deems appropriate, including those described in paragraph (a) of this section, all or a portion of the refund, on a pro rata basis, to those customers of the recipient who were adversely affected by the initial overcharge. Ancillary Orders may be appealed to the Office of Hearings and Appeals only pursuant to subpart H.

§ 205.199J Consent order.

(a) Notwithstanding any other provision of this subpart, the DOE may at any time resolve an outstanding compliance investigation or proceeding, or a proceeding involving the disallowance of costs pursuant to § 205.199E with a Consent Order. A Consent Order must be signed by the person to whom it is issued, or a duly authorized representative, and must indicate agreement to the terms contained therein. A Consent Order need not constitute an admission by any person that DOE regulations have been violated, nor need it constitute a finding by the DOE that such person has violated DOE regulations. A Consent Order shall, however, set forth the relevant facts which form the basis for the Order.

(b) A Consent Order is a final Order of the DOE having the same force and effect as a Remedial Order issued pursuant to § 205.199B or an Order of Disallowance issued pursuant to § 205.199E, and may require one or more of the remedies authorized by § 205.199I and § 212.84(d)(3). A Consent Order becomes effective no sooner than 30 days after publication under paragraph (c) of this section, unless (1) the DOE makes a Consent Order effective immediately, because it expressly deems it necessary in the public interest, or (2) the Consent Order involves a sum of less than $500,000 in the aggregate, excluding penalties and interest, in which case it will be effective when signed both by the person to whom it is issued and the DOE, and will not be subject to the provisions of paragraph (c) of this section unless the DOE determines otherwise. A Consent Order shall not be appealable pursuant to the provisions of § 205.199C or § 205.199D and subpart H, and shall contain an express waiver of such appeal or judicial review rights as might otherwise attach to a final Order of the DOE.

(c) When a Consent Order has been signed, both by the person to whom it is issued and the DOE, the DOE will publish notice of such Consent Order in the Federal Register and in a press release to be issued simultaneously therewith. The Federal Register notice and the press release will state at a minimum the name of the company concerned, a brief summary of the Consent Order and other facts or allegations relevant thereto, the address and telephone number of the DOE office at which copies of the Consent Order will be available free of charge, the address to which comments on the Consent Order will be received by the DOE, and the date by which such comments should be submitted, which date will not be less than 30 days after publication of the Federal Register notice. After the expiration of the comment period the DOE may withdraw its agreement to the Consent Order, attempt to negotiate a modification of the Consent Order, or issue the Consent Order as signed. The DOE will publish in the Federal Register, and by press release, notice of any action taken on a Consent Order and such explanation of the action taken as deemed appropriate. The provisions of this paragraph shall be applicable notwithstanding the fact that a Consent Order may have been made immediately effective pursuant to paragraph (b) of this section (except in cases where the Consent Order involves sums of less than $500,000 in the aggregate, excluding penalties and interest).

(d) At any time and in accordance with the procedures of subpart J, a Consent Order may be modified or rescinded, upon petition by the person to whom the Consent Order was issued, and may be rescinded by the DOE upon discovery of new evidence which is materially inconsistent with evidence upon which the DOE's acceptance of the Consent Order was based. Modifications of a Consent Order which is subject to public comment under the provisions of paragraph (c) of this section, which in the opinion of the DOE significantly change the terms or the impact of the original Order, shall be republished under the provisions of that paragraph.

(e) Notwithstanding the issuance of a Consent Order, the DOE may seek civil or criminal penalties or compromise civil penalties pursuant to subpart P concerning matters encompassed by the Consent Order, unless the Consent Order by its terms expressly precludes the DOE from so doing.

(f) If at any time after a Consent Order becomes effective it appears to the DOE that the terms of the Consent Order have been violated, the DOE may refer such violations to the Department of Justice for appropriate action in accordance with subpart P.

§ 205.260 Purpose and scope.

(a) The purpose of this section is to state the procedures that will be followed by the Economic Regulatory Administration of the Department of Energy in electricity export adjudications.

(b) Definitions. As used in this subpart—

Administrator means the Administrator of the Economic Regulatory Administration.

Decisional employees means the Administrator, presiding officers at adjudicatory hearings, and other employees of the Department, including consultants and contractors, who are, or may reasonably be expected to be, involved in the decision-making process, which includes advising the Administrator in resolving the issues in an adjudication. The term does not include those employees of the Department performing investigative or trial functions in an adjudication, unless they are specifically requested by the Administrator or his delegate to participate in the decision-making process.

Department means the Department of Energy.

Off-the-record communication means an ex parte communication, which is an oral or written communication relevant to the merits of an adjudication and not on the record and with respect to which reasonable prior notice to all participants and opportunity to be present at, or respond to, the communication is not given, but does not include a communication relating solely to procedures which are not relevant to the merits of the adjudication.

Interested person means a person outside the Department whose interest in the adjudication goes beyond the general interest of the public as a whole and includes applicants, intervenors, competitors of applicants, non-profit and public interest organizations, and other individuals and organizations, including state, local and other public officials, with a proprietary, financial or other special interest in the outcome of the adjudication. The term does not include other federal agencies, unless an agency is a participant in the adjudication.

Participant means any applicant or intervenor participating in the adjudication.

Adjudication means a formal proceeding employing procedures identical or similar to those required by the Administrative Procedure Act, as codified in 5 U.S.C. 551, 556, and 557, to consider an application to export electricity.

Reasonable prior notice means 7 days' written notice stating the nature and purpose of the communication.

Relevant to the merits means a communication directly related to the merits of a specific adjudication but does not include general background discussions about an entire industry or communications of a general nature made in the course of developing agency policy for future general application.

§§ 205.261-205.269 [Reserved]

§ 205.270 Off-the-record communications.

(a) In any proceeding which is subject to this subpart—

(1) No interested person shall make an off-the-record communication or knowingly cause an off-the-record communication to be made to any decisional employee.

(2) No decisional employee shall make an off-the-record communication or knowingly cause an off-the-record communication to be made to any interested person.

(3) A decisional employee who receives, makes, or knowingly causes to be made an oral communication prohibited by this section shall prepare a memorandum stating the substance of the communication and any responses made to it.

(4) With 48 hours of receiving, making or knowingly causing to be made a communication prohibited by this section, a decisional employee shall deliver all written off-the-record communications and all memoranda prepared in compliance with paragraph (a)(3) of this section to the Director of the Coal and Electricity Division, ERA, who will immediately place the materials described above in the public record associated with the adjudication, available for public inspection.

(5) Upon receipt of a communication knowingly made or knowingly caused to be made by a participant in violation of this section, the Administrator or presiding officer may, to the extent consistent with the interests of justice and the applicable statutory policy, require the participant to show cause why his or her claim or interest in the adjudication should not be dismissed, denied, disregarded, or otherwise adversely affected on account of the violation.

(6) The prohibitions of this section shall apply beginning at the time an adjudication is noticed for hearing (or the person responsible for the communication acquires knowledge that it will be noticed), a protest is filed, or a petition or notice to intervene in opposition to the requested Department action is filed, whichever occurs first.

(b) The prohibition, cited at 18 CFR 1.30(f), against participation in the decision-making process by Department employees who perform investigative or trial functions in an adjudication, shall no longer be applicable to ERA.

§ 205.280 Purpose and scope.

This subpart establishes special procedures pursuant to which refunds may be made to injured persons in order to remedy the effects of a violation of the regulations of the Department of Energy. This subpart shall be applicable to those situations in which the Department of Energy is unable to readily identify persons who are entitled to refunds specified in a Remedial Order, a Remedial Order for Immediate Compliance, an Order of Disallowance or a Consent Order, or to readily ascertain the amounts that such persons are entitled to receive.

§ 205.281 Petition for implementation of special refund procedures.

(a) At any time after the issuance of a Remedial Order (including for purposes of this subpart a Remedial Order for Immediate Compliance and an Order of Disallowance), or a Consent Order, the Special Counsel of the Department of Energy, the ERA Office of Enforcement, or any other enforcement official of the Department of Energy may file with the Office of Hearings and Appeals a Petition for the Implementation of Special Refund Procedures.

(b) The Petition shall state that the person filing it has been unable readily either to identify the persons who are entitled to refunds to be remitted pursuant to a Remedial Order or a Consent Order or to ascertain the amounts of refunds that such persons are entitled to receive. The Petition shall request that the Office of Hearings and Appeals institute appropriate proceedings under this subpart to distribute the funds referred to in the enforcement documents.

(c) The Petition shall contain a copy of each relevant enforcement document, shall be filed in duplicate, and shall meet the requirements of § 205.9 of this part.

§ 205.282 Evaluation of petition by the Office of Hearings and Appeals.

(a) After considering the Petition, the Director of the Office of Hearings and Appeals or his designee shall issue a Proposed Decision and Order. The Proposed Decision and Order shall generally describe the nature of the particular refund proceeding and shall set forth the standards and procedures that the Office of Hearings and Appeals intends to apply in evaluating refund claims.

(b) The Proposed Decision and Order shall be published in the Federal Register together with a statement that any member of the public may submit written comments to the Office of Hearings and Appeals with respect to the matter. At least 30 days following publication in the Federal Register shall be provided for the submission of comments.

(c) After considering the comments submitted, the Director of the Office of Hearings and Appeals or his designee shall issue a final Decision and Order which shall govern the disposition of the refunds. The final Decision and Order shall also be published in the Federal Register.

(d) The final Decision and Order shall set forth the standards and procedures that will be used in evaluating individual Applications for Refunds and distributing the refund amount. Those standards and procedures shall be consistent with the provisions of this subpart.

(e) In establishing standards and procedures for implementing refund distributions, the Office of Hearings and Appeals shall take into account the desirability of distributing the refunds in an efficient, effective and equitable manner and resolving to the maximum extent practicable all outstanding claims. In order to do so, the standards for evaluation of individual claims may be based upon appropriate presumptions.

§ 205.283 Applications for refund.

(a) Any person entitled to a refund pursuant to a final Decision and Order issued pursuant to § 205.282 may file an Application for Refund. All Applications must be signed by the applicant and specify the DOE order to which they pertain. Any Application for a refund in excess of $100 must be file in duplicate, and a copy of that Application will be available for public inspection in the DOE Public Docket Room at 2000 M Street, NW., Washington, DC. Any applicant who believes that his Application contains confidential information must so indicate on the first page of his Application and submit two additional copies of his Application from which the information that the applicant claims is confidential has been deleted, together with a statement specifying why any such information is privileged or confidential.

(b) The contents of an Application for Refund shall be specified in the final Decision and Order referred to in § 205.282(c). A filing deadline for Applications shall also be specified in the final Decision and Order, and shall be no less than 90 days after the publication of the Order in the Federal Register.

(c) Each Application shall be in writing and signed by the applicant, and shall indicate whether the applicant or any person acting on his instructions has filed or intends to file any other Application or claim of whatever nature regarding the matters at issue in the underlying enforcement proceeding. Each Application shall also include a sworn statement by the applicant that all information in his Application is true and correct to the best of his knowledge and belief.

§ 205.284 Processing of applications.

(a) The Director of the Office of Hearings and Appeals may appoint an administrator to evaluate Applications under guidelines established by the Office of Hearings and Appeals. The administrator, if he is not a Federal Government employee, may be compensated from the funds referred to in the Remedial Order or Consent Order. The administrator may design and distribute an optional application form for the convenience of the applicants.

(b) The Office of Hearings and Appeals or its designee may initiate an investigation of any statement made in an Application and may require verification of any document submitted in support of a claim. In evaluating an Application, the Office of Hearings and Appeals or its designee may solicit and consider information obtained from any source and may on its own initiative convene a hearing or conference, if it determines that a hearing or conference will advance its evaluation of an Application.

(c) The Director of the Office of Hearings and Appeals or his designee shall conduct any hearing or conference convened with respect to an Application for Refund and shall specify the time and place for the hearing or conference and notify the applicant. The official conducting the hearing may administer oaths and affirmations, rule on the presentation of information, receive relevant information, dispose of procedural requests, determine the format of the hearing and otherwise regulate the course of the hearing. The provisions of § 205.8 of this part which relate to subpoenas and witness fees shall apply to any hearing convened with respect to an application for refund, except that § 205.8(h) (2), (3) and (4) shall not apply.

(d) Upon consideration of an Application and other relevant information received during the course of a refund proceeding, the Director of the Office of Hearings and Appeals or his designee shall issue an order granting or denying the Application. The order shall contain a concise statement of the relevant facts and the legal basis for the order. A copy of the order, with such modification as is necessary to ensure the confidentiality of information protected from public disclosure by 18 U.S.C. 1905, may be obtained upon request by an applicant or any other person who participated in the proceeding.

§ 205.285 Effect of failure to file a timely application.

An Application for Refund must be filed no later than the date that the Office of Hearings and Appeals establishes pursuant to § 205.283(b). Any Application that is not filed on a timely basis may be summarily dismissed. The Office of Hearings and Appeals or its designee may, however, grant extensions of time for good cause shown. Any request for an extension of time must generally be submitted in writing prior to the deadline.

§ 205.286 Limitations on amount of refunds.

(a) The aggregate amount of all refunds approved by the Office of Hearings and Appeals or its designee in a given case shall not exceed the amount to be remitted pursuant to the relevant DOE enforcement order, plus any accumulated interest, reduced by the amount of any administrative costs approved by the Office of Hearings and Appeals. In the event that the aggregate amount of approved claims exceeds the aggregate amount of funds specified above, the Office of Hearings and Appeals may make refunds on a pro rata basis. The Office of Hearings and Appeals may delay payment of any refunds until all Applications have been processed.

(b) The Office of Hearings and Appeals may decline to consider Applications for refund amounts that, in view of the direct administrative costs involved, are too small to warrant individual consideration.

§ 205.287 Escrow accounts, segregated funds and other guarantees.

(a) In implementing the refund procedures specified in this subpart, the Director of the Office of Hearings and Appeals or his designee shall issue an order providing for the custody of the funds to be tendered pursuant to the Remedial Order or Consent Order. This Order may require placement of the funds in an appropriate interest-bearing escrow account, retention of the funds by the firm in a segregated account under such terms and conditions as are specified by the DOE, or the posting of a sufficient bond or other guarantee to ensure payment.

(b) All costs and charges approved by the Office of Hearings and Appeals and incurred in connection with the processing of Applications for Refund or incurred by an escrow agent shall be paid from the amount of funds, including any accumulated interest, to be remitted pursuant to the Remedial Order or Consent Order.

(c) After the expenses referred to in paragraph (b) of this section have been satisfied and refunds distributed to successful applicants, any remaining funds remitted pursuant to the Remedial Order or Consent Order shall be deposited in the United States Treasury or distributed in any other manner specified in the Decision and Order referred to in § 205.282(c).

(d) Funds contained in an escrow account, segregated fund, or guaranteed by other approved means shall be disbursed only upon written order of the Office of Hearings and Appeals.

§ 205.288 Interim and ancillary orders.

The Director of the Office of Hearings and Appeals or his designee may issue any interim or ancillary orders, or make any rulings or determinations to ensure that refund proceedings, including the actions of the administrator and the custodian of the funds involved in a refund proceeding, are conducted in an appropriate manner and are not unduly delayed.

§ 205.300 Who shall apply.

To obtain authorization to transmit any electric energy from the United States to a foreign country, an electric utility or any other person seeking to transmit any electricity from the U.S. to a foreign country must submit an application or be a party to an application submitted by another entity. The application shall include information the applicant deems relevant to DOE's determination under section 202(e) in the Federal Power Act.

[91 FR 36975, June 22, 2026]

§§ 205.301-205.309 [Reserved]

§§ 205.320-205.329 [Reserved]

§ 205.350 General purpose.

The purpose of this rule is to establish a procedure for the Office of International Affairs and Energy Emergencies (IE) to obtain current information regarding emergency situations on the electric energy supply systems in the United States so that appropriate Federal emergency response measures can be implemented in a timely and effective manner. The data also may be utilized in developing legislative recommendations and reports to the Congress.

(Approved by the Office of Management and Budget under control number 1901-0288)

§ 205.351 Reporting requirements.

For the purpose of this section, a report or a part of a report may be made jointly by two or more entities. Every electric utility or other entity engaged in the generation, transmission or distribution of electric energy for delivery and/or sale to the public shall report promptly, through the DOE Emergency Operations Center, by telephone, the occurrence of any event such as described in paragraphs (a) through (d) of this section. These reporting procedures are mandatory. Entities that fail to comply within 24 hours will be contacted and reminded of their reporting obligation.

(a) Loss of Firm System Loads, caused by:

(1) Any load shedding actions resulting in the reduction of over 100 megawatts (MW) of firm customer load for reasons of maintaining the continuity of the bulk electric power supply system.

(2) Equipment failures/system operational actions attributable to the loss of firm system loads for a period in excess of 15 minutes, as described below:

(i) Reports from entities with a previous year recorded peak load of over 3000 MW are required for all such losses of firm loads which total over 300 MW.

(ii) Reports from all other entities are required for all such losses of firm loads which total over 200 MW or 50 percent of the system load being supplied immediately prior to the incident, whichever is less.

(3) Other events or occurrences which result in a continuous interruption for 3 hours or longer to over 50,000 customers, or more than 50 percent of the total customers being served immediately prior to the interruption, whichever is less.

(b) Voltage Reductions or Public Appeals:

(1) Reports are required for any anticipated or actual system voltage reductions of 3 percent or greater for purposes of maintaining the continuity of the bulk electric power supply system.

(2) Reports are required for any issuance of a public appeal to reduce the use of electricity for purposes of maintaining the continuity of the bulk electric power system.

(c) Vulnerabilities that could Impact System Reliability:

(1) Reports are required for any actual or suspected act(s) of physical sabotage (not vandalism) or terrorism directed at an electric power supply system, local or regional, in an attempt to either:

(i) Disrupt or degrade the service reliability of the local or regional bulk electric power supply system, or

(ii) Disrupt, degrade, or deny bulk electric power service to:

(A) A specific facility (industrial, military, governmental, private), or

(B) A specific service (transportation, communications), or

(C) A specific locality (town, city, county).

(2) Reports are required for any abnormal emergency system operating condition(s) or other event(s) which in the judgment of the reporting entity could or would constitute a hazard to maintaining the continuity of the bulk electric power supply system. Examples will be provided in the DOE pamphlet on reporting procedures.

(d) Fuel Supply Emergencies:

(1) Reports are required for any anticipated or existing fuel supply emergency situation which would threaten the continuity of the bulk electric power supply system, such as:

(i) Fuel stocks or hydro project water storage levels are at 50 percent (or less) of normal for that time of the year, and a continued downward trend is projected.

(ii) Unscheduled emergency generation is dispatched causing an abnormal use of a particular fuel type, such that the future supply or stocks of that fuel could reach a level which threatens the reliability or adequacy of electric service.

(Approved by the Office of Management and Budget under control number 1901-0288)

§ 205.352 Information to be reported.

The emergency situation data shall be supplied to the DOE Emergency Operations Center in accordance with the current DOE pamphlet on reporting procedures. The initial report shall include the utility name; the area affected; the time of occurrence of the initiating event; the duration or an estimate of the likely duration; an estimate of the number of customers and amount of load involved; and whether any known critical services such as hospitals, military installations, pumping stations or air traffic control systems, were or are interrupted. To the extent known or reasonably suspected, the report shall include a description of the events initiating the disturbance. The DOE may require further clarification during or after restoration of service.

(Approved by the Office of Management and Budget under control number 1901-0288)

§ 205.353 Special investigation and reports.

If directed by the Director, Office of Energy Emergency Operations in writing and noticed in the Federal Register, a utility or other subject entity experiencing a condition described in § 205.351 above shall submit a full report of the technical circumstances surrounding a specific power system disturbance, including the restoration procedures utilized. The report shall be filed at such times as may be directed by the Director, Office of Energy Emergency Operations.

(Approved by the Office of Management and Budget under control number 1901-0288)

§ 205.370 Applicability.

Sections 202(c) and 202(d) of the Federal Power Act are applicable to any “entity” which owns or operates electric power generation, transmission or distribution facilities. An “entity” is a private or public corporation (utility), a governmental agency, a municipality, a cooperative or a lawful association of the foregoing. Under this section, the DOE has the authority to order the temporary connection of facilities, or the generation or delivery of electricity, which it deems necessary to alleviate an emergency. Such orders shall be effective for the time specified and will be subject to the terms and conditions the DOE specifies. The DOE retains the right to cancel, modify or otherwise change any order, with or without notice, hearing, or report. Requests for action under these regulations will be accepted from any “entity,” State Public Utility Commission, State Energy Agency, or State Governor. Actions under these regulations also may be initiated by the DOE on its own motion. Orders under this authority may be made effective without prior notice.

§ 205.371 Definition of emergency.

“Emergency,” as used herein, is defined as an unexpected inadequate supply of electric energy which may result from the unexpected outage or breakdown of facilities for the generation, transmission or distribution of electric power. Such events may be the result of weather conditions, acts of God, or unforeseen occurrences not reasonably within the power of the affected “entity” to prevent. An emergency also can result from a sudden increase in customer demand, an inability to obtain adequate amounts of the necessary fuels to generate electricity, or a regulatory action which prohibits the use of certain electric power supply facilities. Actions under this authority are envisioned as meeting a specific inadequate power supply situation. Extended periods of insufficient power supply as a result of inadequate planning or the failure to construct necessary facilities can result in an emergency as contemplated in these regulations. In such cases, the impacted “entity” will be expected to make firm arrangements to resolve the problem until new facilities become available, so that a continuing emergency order is not needed. Situations where a shortage of electric energy is projected due solely to the failure of parties to agree to terms, conditions or other economic factors relating to service, generally will not be considered as emergencies unless the inability to supply electric service is imminent. Where an electricity outage or service inadequacy qualifies for a section 202(c) order, contractual difficulties alone will not be sufficient to preclude the issuance of an emergency order.

§ 205.372 Filing procedures; number of copies.

An original and two conformed copies of the applications and reports required under §§ 205.370 through 205.379 shall be filed with the Division of Power Supply and Reliability, Department of Energy. Copies of all documents also shall be served on:

(a) The Federal Energy Regulatory Commission;

(b) Any State Regulatory Agency having responsibility for service standards, or rates of the “entities” that are affected by the requested order;

(c) Each “entity” suggested as a potential source for the requested emergency assistance;

(d) Any “entity” that may be a potential supplier of transmission services;

(e) All other “entities” not covered under paragraphs (c) and (d) of this section which may be directly affected by the requested order; and

(f) The appropriate Regional Reliability Council.

§ 205.373 Application procedures.

Every application for an emergency order shall set forth the following information as required. This information shall be considered by the DOE in determining that an emergency exists and in deciding to issue an order pursuant to sections 202(c) and 202(d) of the Federal Power Act.

(a) The exact legal name of the applicant and of all other “entities” named in the application.

(b) The name, title, post office address, and telephone number of the person to whom correspondence in regard to the application shall be addressed.

(c) The political subdivision in which each “entity” named in the application operates, together with a brief description of the area served and the business conducted in each location.

(d) Each application for a section 202(c) order shall include the following baseline data:

(1) Daily peak load and energy requirements for each of the past 30 days and projections for each day of the expected duration of the emergency;

(2) All capacity and energy receipts or deliveries to other electric utilities for each of the past 30 days, indicating the classification for each transaction;

(3) The status of all interruptible customers for each of the past 30 days and the anticipated status of these customers for each day of the expected duration of the emergency, assuming both the granting and the denial of the relief requested herein;

(4) All scheduled capacity and energy receipts or deliveries to other electric utilities for each day of the expected duration of the emergency.

(e) A description of the situation and a discussion of why this is an emergency, including any necessary background information. This should include any contingency plan of the applicant and the current level of implementation.

(f) A showing that adequate electric service to firm customers cannot be maintained without additional power transfers.

(g) A description of any conservation or load reduction actions that have been implemented. A discussion of the achieved or expected results or these actions should be included.

(h) A description of efforts made to obtain additional power through voluntary means and the results of such efforts; and a showing that the potential sources of power and/or transmission services designated pursuant to paragraphs (i) through (k) of this section informed that the applicant believed that an emergency existed within the meaning of § 205.371.

(i) A listing of proposed sources and amounts of power necessary from each source to alleviate the emergency and a listing of any other “entities” that may be directly affected by the requested order.

(j) Specific proposals to compensate the supplying “entities” for the emergency services requested and to compensate any transmitting “entities” for services necessary to deliver such power.

(k) A showing that, to the best of the applicant's knowledge, the requested relief will not unreasonably impair the reliability of any “entity” directly affected by the requested order to render adequate service to its customers.

(l) Description of the facilities to be used to transfer the requested emergency service to the applicant's system.

(1) If a temporary interconnection under the provisions of section 202(c) is proposed independently, the following additional information shall be supplied for each such interconnection:

(i) Proposed location;

(ii) Required thermal capacity or power transfer capability of the interconnection;

(iii) Type of emergency services requested, including anticipated duration;

(iv) An electrical one line diagram;

(v) A description of all necessary materials and equipment; and

(vi) The projected length of time necessary to complete the interconnection.

(2) If the requested emergency assistance is to be supplied over existing facilities, the following information shall be supplied for each existing interconnection:

(i) Location;

(ii) Thermal capacity of power transfer capability of interconnection facilities; and

(iii) Type and duration of emergency services requested.

(m) A general or key map on a scale not greater than 100 kilometers to the centimeter showing, in separate colors, the territory serviced by each “entity” named in the application; the location of the facilities to be used for the generation and transmission of the requested emergency service; and all connection points between systems.

(n) An estimate of the construction costs of any proposed temporary facilities and a statement estimating the expected operation and maintenance costs on an annualized basis. (Not required on section 202(d) applications.)

(o) Applicants may be required to furnish such supplemental information as the DOE may deem pertinent.

§ 205.374 Responses from “entities” designated in the application.

Each “entity” designated as a potential source of emergency assistance or as a potential supplier of transmission services and which has received a copy of the application under § 205.373, shall have three (3) calendar days from the time of receipt of the application to file the information designated below with the DOE. The DOE will grant extensions of the filing period when appropriate. The designated “entities” shall provide an analysis of the impact the requested action would have on its system reliability and its ability to supply its own interruptible and firm customers. The effects of the requested action on the ability to serve firm loads shall be clearly distinguished from the ability to serve contractually interruptible loads. The designated “entity” also may provide other information relevant to the requested action, which is not included in the reliability analysis. Copies of any response shall be provided to the applicant, the Federal Energy Regulatory Commission, any State Regulatory Agency having responsibility for service standards or rates of any “entity” that may be directly involved in the proposed action, and the appropriate Regional Electric Reliability Council. Pursuant to section 202(c) of the Federal Power Act, DOE may issue an emergency order even though a designated “entity” has failed to file a timely response.

§ 205.375 Guidelines defining inadequate fuel or energy supply.

An inadequate utility system fuel inventory or energy supply is a matter of managerial and engineering judgment based on such factors as fuels in stock, fuels en route, transportation time, and constraints on available storage facilities. A system may be considered to have an inadequate fuel or energy supply capability when, combined with other conditions, the projected energy deficiency upon the applicant's system without emergency action by the DOE, will equal or exceed 10 percent of the applicant's then normal daily net energy for load, or will cause the applicant to be unable to meet its normal peak load requirements based upon use of all of its otherwise available resources so that it is unable to supply adequate electric service to its ultimate customers. The following conditions will be considered in determining that a system has inadequate fuel or energy supply capability:

(1) System coal stocks are reduced to 30 days (or less) of normal burn days and a continued downward trend in stock is projected;

(2) System residual oil stocks are reduced to 15 days (or less) of normal burn days and a continued downward trend in stocks is projected;

(3) System distillate oil stocks which cannot be replaced by alternate fuels are reduced to 15 days (or less) of normal burn days and a continued downward trend in stocks is projected;

(4) System natural gas deliveries which cannot be replaced by alternate fuels have been or will be reduced 20 percent below normal requirements and no improvement in natural gas deliveries is projected within 30 days;

(5) Delays in nuclear fuel deliveries will extend a scheduled refueling shutdown by more than 30 days; and

(6) Water supplies required for power generation have been reduced to the level where the future adequacy of the power supply may be endangered and no near term improvement in water supplies is projected.

The use of the prescribed criteria does not preclude an applicant from claiming the existence of an emergency when its stocks of fuel or water exceed the amounts and time frames specified above.

§ 205.376 Rates and charges.

The applicant and the generating or transmitting systems from which emergency service is requested are encouraged to utilize the rates and charges contained in approved existing rate schedules or to negotiate mutually satisfactory rates for the proposed transactions. In the event that the DOE determines that an emergency exists under section 202(c), and the “entities” are unable to agree on the rates to be charged, the DOE shall prescribe the conditions of service and refer the rate issues to the Federal Energy Regulatory Commission for determination by that agency in accordance with its standards and procedures.

§ 205.377 Reports.

In addition to the information specified below, the DOE may require additional reports as it deems necessary.

(a) Where the DOE has authorized the temporary connection of transmission facilities, all “entities” whose transmission facilities are thus temporarily interconnected shall report the following information to the DOE within 15 days following completion of the interconnection:

(1) The date the temporary interconnection was completed;

(2) The location of the interconnection;

(3) A description of the interconnection; and

(4) A one-line electric diagram of the interconnection.

(b) Where the DOE orders the transfer of power, the “entity” receiving such service shall report the following information to the DOE by the 10th of each month for the preceding month's activity for as long as such order shall remain in effect:

(1) Amounts of capacity and/or energy received each day;

(2) The name of the supplier;

(3) The name of any “entity” supplying transmission services; and

(4) Preliminary estimates of the associated costs.

(c) Where the DOE has approved the installation of permanent facilities that will be used only during emergencies, any use of such facilities shall be reported to the DOE within 24 hours. Details of such usage shall be furnished as deemed appropriate by the DOE after such notification.

(d) Any substantial change in the information provided under § 205.373 shall be promptly reported to the DOE.

(Approved by the Office of Management and Budget under Control No. 1904-0066)

[46 FR 39989, Aug. 6, 1981, as amended at 46 FR 63209, Dec. 31, 1981]

§ 205.378 Disconnection of temporary facilities.

Upon the termination of any emergency for the mitigation of which the DOE ordered the construction of temporary facilities, such facilities shall be disconnected and any temporary construction removed or otherwise disposed of, unless application is made as provided in § 205.379 for permanent connection for emergency use. This disconnection and removal of temporary facilities shall be accomplished within 30 days of the termination of the emergency unless an extension is granted by the DOE. The DOE shall be notified promptly when such removal of facilities is completed.

§ 205.379 Application for approval of the installation of permanent facilities for emergency use only.

Application for DOE approval of a permanent connection for emergency use only shall conform with the requirements in § 205.373. However, the baseline data specified in § 205.373(d) need not be included in an application made under this section. In addition, the application shall state in full the reasons why such permanent connection for emergency use is in the public interest.

§ 205.380 Definitions.

As used in this subpart:

Bulk-power system means the same as the definition of such term in paragraph (1) of section 215(a) of the Federal Power Act.

Critical electric infrastructure means the same as the definition of such term in paragraph (2) of section 215A(a) of the Federal Power Act.

Defense critical electric infrastructure means the same as the definition of such term in paragraph (4) of section 215A(a) of the Federal Power Act.

Department means the United States Department of Energy.

Electric Reliability Organization means the same as the definition of such term in paragraph (2) of section 215(a) of the Federal Power Act.

Electricity Information Sharing and Analysis Center (E-ISAC) means the organization, operated on behalf of the electricity subsector by the Electric Reliability Organization, that gathers and analyzes security information, coordinates incident management, and communicates mitigation strategies with stakeholders within the electricity subsector, across interdependent sectors, and with government partners. The E-ISAC, in collaboration with the Department of Energy and the Electricity Subsector Coordinating Council, serves as the primary security communications channel for the electricity subsector and enhances the subsector's ability to prepare for and respond to cyber and physical threats, vulnerabilities, and incidents.

Electricity subsector means both commercial and industrial actors who generate and deliver electric power.

Electricity Subsector Coordinating Council (ESCC) means the organization that aims to foster and facilitate the coordination of sector-wide, policy-related activities and initiatives designed to improve the reliability and resilience of the electricity subsector, including physical and cyber security infrastructure.

Electromagnetic pulse means the same as the definition of such term in paragraph (5) of section 215A(a) of the Federal Power Act.

Emergency & Incident Management Council (EIMC) means the organization, internal to the Department of Energy and chaired by the Deputy Secretary of Energy, designed to increase cooperation and coordination across the Department to prepare for, mitigate, respond to, and recover from emergencies.

Emergency measures means measures necessary in the judgment of the Secretary to protect or restore the reliability of critical electric infrastructure or of defense critical electric infrastructure during a grid security emergency as defined in section 215A(a) of the Federal Power Act.

Emergency order means an order for emergency measures under section 215A(b) of the Federal Power Act.

Geomagnetic storm means a temporary disturbance of the Earth's magnetic field resulting from solar activity.

Grid security emergency means the same as the definition of such term in paragraph (7) of section 215A(a) of the Federal Power Act. A grid security emergency is “declared” once the President of the United States has issued and provided to the Secretary a written directive or determination identifying the emergency.

Regional entity means an entity having enforcement authority under section 215(e)(4) of the Federal Power Act, 16 U.S.C. 824o(e)(4).

Secretary means the Secretary of Energy.

§ 205.381 Applicability of emergency orders.

An order for emergency measures under section 215A(b) of the Federal Power Act (emergency order) may apply to the Electric Reliability Organization, a regional entity or entities, or any owner, user, or operator of critical electric infrastructure or of defense critical electric infrastructure within the United States. Emergency measures may be issued if deemed necessary in the judgment of the Secretary to protect or restore the reliability of critical electric infrastructure or of defense critical electric infrastructure during a presidentially-declared grid security emergency.

§ 205.382 Issuing an emergency order.

(a) The Secretary will use the procedures outlined in this section in issuing emergency orders, unless the Secretary determines that alternative procedures are more appropriate for the unique circumstances presented by the emergency. In all instances, the Secretary has final authority on the procedures to be used in issuing an emergency order.

(b) Upon the Department's receipt of the President's written directive or determination identifying a grid security emergency, the Emergency & Incident Management Council (EIMC) will convene at least one emergency meeting. Resulting from this meeting, the EIMC's responsibilities will include, but not be limited to:

(1) Assigning consultation and situational awareness tasks;

(2) Creating ad hoc task groups;

(3) Assigning recommendation development tasks to the ad hoc task groups it has created; and

(4) Presenting its recommendations to the Secretary as expeditiously as possible and practicable.

(c) Following receipt of the EIMC's recommendations, unless the Secretary has determined alternative procedures are appropriate, the Secretary will issue an emergency order as quickly as the Secretary determines that the situation requires.

§ 205.383 Consultation.

(a) To obtain information related to a particular grid security emergency and recommended emergency measures from those government entities, electric reliability organizations, and private sector companies, and their respective associations where applicable, affected by the emergency, the office that is delegated the authority by the Secretary will conduct consultation related to each emergency order. Before an emergency order is put into effect and, to the extent practicable in light of the nature of the grid security emergency and the urgency of the need for action, efforts will be made to consult with at least the following, as appropriate:

(1) The Electricity Subsector Coordinating Council;

(2) The Electricity Information Sharing and Analysis Center;

(3) The Electric Reliability Organization;

(4) Regional entities; and

(5) Owners, users, or operators of critical electric infrastructure or of defense critical electric infrastructure within the United States; and

(6) At least the following government entities:

(i) Authorities in the government of Canada;

(ii) Authorities in the government of Mexico;

(iii) Appropriate Federal and State agencies including, but not limited to, those supporting Emergency Support Function No. 12;

(iv) The Federal Energy Regulatory Commission; and

(v) The Nuclear Regulatory Commission.

(b) The Department recognizes the expertise of electric grid owners and operators and other consulted entities in seeking to ensure that emergency orders result in the safe and effective operation of the electric grid, align with additional priorities including evidence collection, and comply with existing regulatory requirements, where required. The Department will endeavor, to the extent practicable, to conduct consultation in alignment with the existing Emergency Support Function No. 12 structure and established emergency management processes under the National Response Framework.

[83 FR 1180, Jan. 10, 2018, as amended at 85 FR 3232, Jan. 21, 2020]

§ 205.384 Communication of orders.

The Department will communicate the contents of an emergency order to the entities subject to the order, utilizing the most expedient form or forms of communication under the circumstances. The Department will attempt to conduct communication of emergency orders in alignment with the existing Emergency Support Function No. 12 structure and established emergency management procedures under the National Response Framework by relying on existing coordinating bodies, such as the ESCC and the E-ISAC, and, recognizing the existence of established crisis communication procedures, any other form or forms of communication most expedient under the particular circumstances. To the extent practicable under the particular circumstances, efforts will be made to declassify eligible information to ensure maximum distribution.

§ 205.385 Clarification or reconsideration.

(a) Any entity subject to an emergency order may request clarification or reconsideration of the emergency order. All such requests must be submitted in writing to the Secretary. The Department will post all such requests on the DOE website consistent with 10 CFR part 1004. To the extent the ordered entity believes the grid security emergency order lacks necessary clarity for implementation, or conflicts with the technically feasible operations of the electric grid or existing regulatory requirements, the ordered entity should seek immediate clarification from the Department.

(b) Upon receipt of a request for clarification or reconsideration, the Secretary may, in his or her sole discretion, order a stay of the emergency order for which such clarification or rehearing is sought. The Secretary will act as soon as practicable on each request, with or without further proceedings. Such responsive actions may include granting or denying the request or abrogating or modifying the order, in whole or in part.

§ 205.386 Temporary access to classified and sensitive information.

(a) To the extent practicable, and consistent with obligations to protect classified and sensitive information, the Secretary may provide temporary access to classified and sensitive information, at the level necessary in light of the conditions of the incident, related to a grid security emergency for which emergency measures are issued to key personnel of any entity subject to such emergency measures, to the extent the Secretary deems necessary under the circumstances. The purpose of this access, as defined under section 215A(b)(7) of the Federal Power Act, is to enable optimum communication between the entity and the Secretary and other appropriate Federal agencies regarding the grid security emergency.

(b) CEII will be shared, where deemed necessary by the Secretary, in accordance with 10 CFR part 1004.

§ 205.387 Tracking compliance.

Beginning at the time the Secretary issues an emergency order, the Department may, at the discretion of the Secretary, require the entity or entities subject to an emergency order to provide a detailed account of actions taken to comply with the terms of the emergency order.

§ 205.388 Enforcement.

In accordance with available enforcement authorities, the Secretary may take or seek enforcement action against any entity subject to an emergency order who fails to comply with the terms of that emergency order.

§ 205.389 Rehearing and judicial review.

The procedures of Part III of the Federal Power Act apply to motions for rehearing of an emergency order. A request for clarification or reconsideration filed under § 205.385 of this subpart, if the filling entity so designates, may serve as a request for rehearing pursuant to section 313(a) of the Federal Power Act.

§ 205.390 Liability exemptions.

(a) To the extent any action or omission taken by an entity that is necessary to comply with an emergency order issued pursuant to section 215A(b)(1) of the Federal Power Act and this Part, including any action or omission taken to voluntarily comply with such order, results in noncompliance with, or causes such entity not to comply with any rule, order, regulation, or provision of or under the Federal Power Act, including any reliability standard approved by the Federal Energy Regulatory Commission pursuant to section 215 of the Federal Power Act, the Department will not consider such action or omission to be a violation of such rule, order, regulation, or provision.

(b) The Department will treat an action or omission by an owner, operator, or user of critical electric infrastructure or of defense critical electric infrastructure to comply with an emergency order issued pursuant to section 215A(b)(1) of the Federal Power Act as the functional equivalent of an action or omission taken to comply with an order issued under section 202(c) of the Federal Power Act for purposes of section 202(c).

(c) The liability exemptions specified in paragraphs (a) and (b) of this section do not apply to an entity that, in the course of complying with an emergency order by taking an action or omission for which the entity would otherwise be liable, takes such action or omission in a grossly negligent manner.

§ 205.391 Termination of an emergency order.

(a) An emergency order will expire no later than 15 days after its issuance. The Secretary may reissue an emergency order for subsequent periods, not to exceed 15 days for each such period, provided that the President, for each such period, issues and provides to the Secretary a written directive or determination that the grid security emergency for which the Secretary intends to reissue an emergency order continues to exist or that the emergency measures continue to be required.

(b) The Secretary may rescind an emergency order after finding that the grid security emergency for which that order was issued has ended, and that protective or mitigation measures required by that order have been sufficiently taken.

(c) An entity or entities subject to an emergency order issued under this subpart may, at any time, request termination of the emergency order by demonstrating, in a petition to the Secretary, that the emergency no longer exists and that protective or mitigation measures required by the order have been sufficiently taken.

§ 207.1 Purpose.

The purpose of this subpart is to set forth the manner of enforcement regarding the collection of energy information which the Administrator is authorized to obtain by sections 11 (a) and (b) of ESECA.

[90 FR 20758, May 16, 2025]

§ 207.2 Definitions.

As used in this subpart:

Administrator means the Federal Energy Administrator of his delegate.

Energy information includes all information in whatever form on (1) fuel reserves, exploration, extraction, and energy resources (including petrochemical feedstocks) wherever located; (2) production, distribution, and consumption of energy and fuels, wherever carried on; and (3) matters relating to energy and fuels such as corporate structure and proprietary relationships, costs, prices, capital investment, and assets, and other matters directly related thereto, wherever they exist.

ESECA means the Energy Supply and Environmental Coordination Act of 1974 (Pub. L. 93-319).

EPAA means the Emergency Petroleum Allocation Act of 1973 (Pub. L. 93-159).

DOE means the Department of Energy.

Person means any natural person, corporation, partnership, association, consortium, or any entity organized for a common business purpose, wherever situated, domiciled, or doing business, who directly or through other persons subject to their control does business in any part of the United States.

United States, when used in the geographical sense, means the States, the District of Columbia, Puerto Rico, and the territories and possessions of the United States.

§§ 207.3-207.4 [Reserved]

§ 207.5 Violations.

Any practice that circumvents or contravenes or results in a circumvention or contravention of the requirements outlined in the ESECA or any order issued pursuant thereto is a violation of the DOE regulations stated in this subpart.

[90 FR 20758, May 16, 2025]

§ 207.6 Notice of probable violation and remedial order.

(a) Purpose and scope. (1) This section establishes the procedures for determining the nature and extent of violations of this subpart and the procedures for issuance of a notice of probable violation, a remedial order or a remedial order for immediate compliance.

(2) When the DOE discovers that there is reason to believe a violation of any provision of this subpart, or any order issued thereunder, has occurred, is continuing or is about to occur, the DOE may conduct proceedings to determine the nature and extent of the violation and may issue a remedial order thereafter. The DOE may commence such proceeding by serving a notice of probable violation or by issuing a remedial order for immediate compliance.

(b) Notice of probable violation. (1) The DOE may begin a proceeding under this subpart by issuing a notice of probable violation if the DOE has reason to believe that a violation has occurred, is continuing, or is about to occur.

(2) Within 10 days of the service of a notice of probable violation, the person upon whom the notice is served may file a reply with the DOE office that issued the notice of probable violation at the address provided in § 205.12 of this chapter. The DOE may extend the 10-day period for good cause shown.

(3) The reply shall be in writing and signed by the person filing it. The reply shall contain a full and complete statement of all relevant facts pertaining to the act or transaction that is the subject of the notice of probable violation. Such facts shall include a complete statement of the business or other reasons that justify the act or transaction, it appropriate; a detailed description of the act or transaction; and a full discussion of the pertinent provisions and relevant facts reflected in any documents submitted with the reply. Copies of all relevant documents shall be submitted with the reply.

(4) The reply shall include a discussion of all relevant authorities, including, but not limited to, DOE rulings, regulations, interpretations, and decisions on appeals and exceptions relied upon to support the particular position taken.

(5) The reply should indicate whether the person requests or intends to request a conference regarding the notice. Any request not made at the time of the reply shall be made as soon thereafter as possible to insure that the conference is held when it will be most beneficial. A request for a conference must conform to the requirements of subpart M of part 205 of this chapter.

(6) If a person has not filed a reply with the DOE within the 10-day period provided, and the DOE has not extended the 10-day period, the person shall be deemed to have conceded the accuracy of the factual allegations and legal conclusions stated in the notice of probable violation.

(7) If the DOE finds, after the 10-day period provided in § 207.6(b)(2), that no violation has occurred, is continuing, or is about to occur, or that for any reason the issuance of a remedial order would not be appropriate, it shall notify, in writing, the person to whom a notice of probable violation has been issued that the notice is rescinded.

(c) Remedial order. (1) If the DOE finds, after the 10-day period provided in § 207.6(b)(2), that a violation has occurred, is continuing, or is about to occur, the DOE may issue a remedial order. The order shall include a written opinion setting forth the relevant facts and the legal basis of the remedial order.

(2) A remedial order issued under this subpart shall be effective upon issuance, in accordance with its terms, until stayed, suspended, modified or rescinded. The DOE may stay, suspend, modify or rescind a remedial order on its own initiative or upon application by the person to whom the remedial order is issued. Such action and application shall be in accordance with the procedures for such proceedings provided for in part 205 of this chapter.

(3) A remedial order may be referred at any time to the Department of Justice for appropriate action in accordance with § 207.7.

(d) Remedial order for immediate compliance. (1) Notwithstanding paragraphs (b) and (c) of this section, the DOE may issue a remedial order for immediate compliance, which shall be effective upon issuance and until rescinded or suspended, if it finds:

(i) There is a strong probability that a violation has occurred, is continuing or is about to occur;

(ii) Irreparable harm will occur unless the violation is remedied immediately; and

(iii) The public interest requires the avoidance of such irreparable harm through immediate compliance and waiver of the procedures afforded under paragraphs (b) and (c) of this section.

(2) A remedial order for immediate compliance shall be served promptly upon the person against whom such order is issued by telex or telegram, with a copy served by registered or certified mail. The copy shall contain a written statement of the relevant facts and the legal basis for the remedial order for immediate compliance, including the findings required by paragraph (d)(1) of this section.

(3) The DOE may rescind or suspend a remedial order for immediate compliance if it appears that the criteria set forth in paragraph (d)(1) of this section are no longer satisfied. When appropriate, however, such a suspension or rescission may be accompanied by a notice of probable violation issued under paragraph (b) of this section.

(4) If at any time in the course of a proceeding commenced by a notice of probable violation the criteria set forth in paragraph (d)(1) of this section are satisfied, the DOE may issue a remedial order for immediate compliance, even if the 10-day period for reply specified in § 207.6(b)(2) of this part has not expired.

(5) At any time after a remedial order for immediate compliance has become effective the DOE may refer such order to the Department of Justice for appropriate action in accordance with § 207.7 of this part.

(e) Remedies. A remedial order or a remedial order for immediate compliance may require the person to whom it is directed to take such action as the DOE determines is necessary to eliminate or to compensate for the effects of a violation.

(f) Appeal. (1) No notice of probable violation issued pursuant to this subpart shall be deemed to be an action of which there may be an administrative appeal.

(2) Any person to whom a remedial order or a remedial order for immediate compliance is issued under this subpart may file an appeal with the DOE Office of Exceptions and Appeals in accordance with the procedures for such appeal provided in subpart H of part 205 of this chapter. The appeal must be filed within 10 days of service of the order from which the appeal is taken.

§ 207.7 Sanctions.

(a) General. (1) Penalties and sanctions shall be deemed cumulative and not mutually exclusive.

(2) Each day that a violation of the provisions of this subpart or any order issued pursuant thereto continues shall be deemed to constitute a separate violation within the meaning of the provisions of this subpart relating to criminal fines and civil penalties.

(b) Criminal penalties. Any person who willfully violates any provision of this subpart or any order issued pursuant thereto shall be subject to a fine of not more than $5,000 for each violation. Criminal violations are prosecuted by the Department of Justice upon referral by the DOE.

(c) Civil penalties. (1) Any person who violates any provision of this subpart or any order issued pursuant thereto shall be subject to a civil penalty of not more than $13,273 for each violation. Actions for civil penalties are prosecuted by the Department of Justice upon referral by the DOE.

(2) When the DOE considers it to be appropriate or advisable, the DOE may compromise and settle, and collect civil penalties.

[40 FR 18409, Apr. 28, 1975, as amended at 62 FR 46183, Sept. 2, 1997; 74 FR 66032, Dec. 14, 2009; 81 FR 41793, June 28, 2016; 81 FR 96351, Dec. 30, 2016; 83 FR 1291, Jan. 11, 2018; 83 FR 66082, Dec. 26, 2018; 85 FR 829, Jan. 8, 2020; 86 FR 2955, Jan. 14, 2021; 87 FR 1063, Jan. 10, 2022; 88 FR 2192, Jan. 13, 2023; 89 FR 1027, Jan. 9, 2024; 89 FR 105405, Dec. 27, 2024]

§ 207.8 Judicial actions.

(a) Enforcement of subpoenas; contempt. Any United States district court within the jurisdiction of which any inquiry is carried on may, upon petition by the Attorney General at the request of the Administrator, in the case of refusal to obey a subpoena or order of the Administrator issued under this subpart, issue an order requiring compliance. Any failure to obey such an order of the court may be punished by the court as contempt.

(b) Injunctions. Whenever it appears to the Administrator that any person has engaged, is engaged, or is about to engage in any act or practice constituting a violation of any regulation or order issued under this subpart, the Administrator may request the Attorney General to bring a civil action in the appropriate district court of the United States to enjoin such acts or practices and, upon a proper showing, a temporary restraining order or preliminary or permanent injunction shall be granted without bond. The relief sought may include a mandatory injunction commanding any person to comply with any provision of such order or regulation, the violation of which is prohibited by section 12(a) of ESECA, as implemented by this subpart.

§ 207.9 Exceptions, exemptions, interpretations, rulings and rulemaking.

Applications for exceptions, exemptions or requests for interpretations relating to this subpart shall be filed in accordance with the procedures provided in subparts D, E and F, respectively, of part 205 of this chapter. Rulings shall be issued in accordance with the procedures of subpart K of part 205 of this chapter. Rulemakings shall be undertaken in accordance with the procedures provided in subpart L of part 205 of this chapter.

§ 209.1 Purpose and scope.

This part implements the provisions of the Energy Policy and Conservation Act (EPCA) authorizing the Administrator to prescribe standards and procedures by which persons engaged in the business of producing, transporting, refining, distributing, or storing petroleum may develop and carry out voluntary agreements, and plans of action which are required to implement the information and allocation provisions of the International Energy Program (IEP). The requirements of this part do not apply to activities other than those for which section 252 of EPCA makes available a defense to the antitrust laws.

§ 209.2 Delegation.

To the extent otherwise permitted by law, any authority, duty, or responsibility vested in DOE or the Administrator under these regulations may be delegated to any regular full-time employee of the Department of Energy, and, by agreement, to any regular full-time employee of the Department of Justice or the Department of State.

§ 209.3 Definitions.

For purposes of this part—

(a) Administrator means the Administrator of the Department of Energy.

(b) Information and allocation provisions of the International Energy Program means the provisions of chapter V of the Program relating to the Information System, and the provisions at chapters III and IV thereof relating to the international allocation of petroleum.

(c) International Energy Agency (IEA) means the International Energy Agency established by Decision of the Council of the Organization for Economic Cooperation and Development, dated November 15, 1974.

(d) International Energy Program (IEP) means the program established pursuant to the Agreement on an International Energy Program signed at Paris on November 18, 1974, including (1) the Annex entitled “Emergency Reserves”, (2) any amendment to such Agreement which includes another nation as a Party to such Agreement, and (3) any technical or clerical amendment to such Agreement.

(e) International energy supply emergency means any period (1) beginning on any date which the President determines allocation of petroleum products to nations participating in the international energy program is required by chapters III and IV of such program, and (2) ending on a date on which he determines such allocation is no longer required. Such a period shall not exceed 90 days, except where the President establishes one or more additional periods by making the determination under paragraph (e)(1) of this section.

(f) Potential participant means any person engaged in the business of producing, transporting, refining, distributing, or storing petroleum products; “participant” means any such person who agrees to participate in a voluntary agreement pursuant to a request to do so by the Administrator.

(g) Petroleum or petroleum products means crude oil, residual fuel oil, or any refined petroleum product (including any natural gas liquid and any natural gas liquid product).

§ 209.21 Purpose and scope.

(a) This subpart establishes the standards and procedures by which persons engaged in the business of producing, transporting, refining, distributing. or storing petroleum products shall develop voluntary agreements which are required to implement the allocation and information provisions of the International Energy Program.

(b) This subpart does not apply to meetings of bodies created by the International Energy Agency.

§ 209.22 Initiation of meetings.

(a) Any meeting held for the purpose of developing a voluntary agreement involving two or more potential participants shall be initiated and chaired by the Administrator or other regular full-time Federal employee designated by him.

(b) DOE shall provide notice of meetings held pursuant to this subpart, in writing, to the Attorney General, the Federal Trade Commission, and to the Speaker of the House and the President of the Senate for delivery to the appropriate committees of Congress, and to the public through publication in the Federal Register. Such notice shall identify the time, place, and agenda of the meeting, and such other matters as the Administrator deems appropriate. Notice in the Federal Register shall be published at least seven days prior to the date of the meeting.

§ 209.23 Conduct of meetings.

(a) Meetings to develop a voluntary agreement held pursuant to this subpart shall be open to all interested persons. Interested persons desiring to attend meetings under this subpart may be required pursuant to notice to advise the Administrator in advance.

(b) Interested persons may, as set out in notice provided by the Administrator, present data, views, and arguments orally and in writing, subject to such reasonable limitations with respect to the manner of presentation as the Administrator may impose.

§ 209.24 Maintenance of records.

(a) The Administrator shall keep a verbatim transcript of any meeting held pursuant to this subpart.

(b)(1) Except as provided in paragraphs (b) (2) through (4) of this section, potential participants shall keep a full and complete record of any communications (other than in a meeting held pursuant to this subpart) between or among themselves for the purpose of developing a voluntary agreement under this part. When two or more potential participants are involved in such a communication, they may agree among themselves who shall keep such record. Such record shall include the names of the parties to the communication and the organizations, if any, which they represent; the date of the communication; the means of communication; and a description of the communication in sufficient detail to convey adequately its substance.

(2) Where any communication is written (including, but not limited to, telex, telegraphic, telecopied, microfilmed and computer printout material), and where such communication demonstrates on it face that the originator or some other source furnished a copy of the communication to the Office of International Affairs, Department of Energy with the notation “Voluntary Agreement” marked on the first page of the document, no participant need record such a communication or send a further copy to the Department of Energy. The Department of Energy may, upon written notice to potential participants, from time to time, or with reference to particular types of documents, require deposit with other offices or officials of the Department of Energy. Where such communication demonstrates that it was sent to the Office of International Affairs, Department of Energy with the notation “Voluntary Agreement” marked on the first page of the document, or such other offices or officials in the Department of Energy has designated pursuant to this section it shall satisfy paragraph (c) of this section, for the purpose of deposit with the Department of Energy.

(3) To the extent that any communication is procedural, administrative or ministerial (for example, if it involves the location of a record, the place of a meeting, travel arrangements, or similar matters), only a brief notation of the date, time, persons involved and description of the communication need be recorded.

(4) To the extent that any communication involves matters which recapitulate matters already contained in a full and complete record, the substance of such matters shall be identified, but need not be recorded in detail, provided that reference is made to the record and the portion thereof in which the substance is fully set out.

(c) Except where the Department of Energy otherwise provides, all records and transcripts prepared pursuant to paragraphs (a) and (b) of this section, shall be deposited within fifteen (15) days after the close of the month of their preparation together with any agreement resulting therefrom, with the Department of Energy, and shall be available to the Department of Justice, the Federal Trade Commission, and the Department of State. Such records and transcripts shall be available for public inspection and copying to the extent set forth in subpart D. Any person depositing material pursuant to this section shall indicate with particularity what portions, if any, the person believes are subject to disclosure to the public pursuant to subpart D and the reasons for such belief.

(d) Any meeting between a potential participant and an official of DOE for the purpose of developing a voluntary agreement shall, if not otherwise required to be recorded pursuant to this section, be recorded by such official as provided in § 204.5.

(Approved by the Office of Management and Budget under Control No. 1905-0079)

(Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended, E.O. 11790, 39 FR 23185; E. O. 11930, 41 FR 32397; Energy Policy and Conservation Act, Pub. L. 94-163; E.O. 11912, 41 FR 15825; Department of Energy Organization Act, Pub. L. 95-91; 91 Stat. 565; E.O. 12009, 42 FR 46267)

[41 FR 6754, Feb. 13, 1976, as amended at 43 FR 12854, Mar. 28, 1978; 46 FR 63209, Dec. 31, 1981]

§ 209.31 Purpose and scope.

This subpart establishes the standards and procedures by which persons engaged in the business of producing, transporting, refining, distributing, or storing petroleum products shall carry out voluntary agreements and develop and carry out plans of action which are required to implement the allocation and information provisions of the International Energy Program.

§ 209.32 Initiation of meetings.

(a) Except for meetings of bodies created by the International Energy Agency, any meeting among participants in a voluntary agreement pursuant to this subpart, for the purpose of carrying out such voluntary agreement or developing or carrying out a plan of action pursuant thereto, shall be initiated and chaired by a full-time Federal employee designated by the Administrator.

(b) Except as provided in paragraph (c) of this section, the Administrator shall provide notice of meetings held pursuant to this subpart, in writing, to the Attorney General, the Federal Trade Commission, and to the Speaker of the House and the President of the Senate for delivery to the appropriate committees of Congress. Except during an international energy supply emergency, notice shall also be provided to the public through publication in the Federal Register. Such notice shall identify the time, place, and agenda of the meeting. Notice in the Federal Register shall be published at least seven days prior to the date of the meeting unless emergency circumstances, IEP requirements or other unanticipated circumstances require the period to be shortened.

(c) During an international energy supply emergency, advance notice shall be given to the Attorney General, the Federal Trade Commission and to the Speaker of the House and the President of the Senate for delivery to the appropriate committees of Congress. Such notice may be telephonic or by such other means as practicable, and shall be confirmed in writing.

§ 209.33 Conduct of meetings.

(a) Subject to the provisions of paragraph (c) of this section, meetings held to carry out a voluntary agreement, or to develop or carry out a plan of action pursuant to this subpart, shall be open to all interested persons, subject to limitations of space. Interested persons desiring to attend meetings under this subpart may be required to advise the Administrator in advance.

(b) Interested persons permitted to attend meetings under this section may present data, views, and arguments orally and in writing, subject to such limitations with respect to the manner of presentation as the Administrator may impose.

(c) Meetings held pursuant to this subpart shall not be open to the public to the extent that the President or his delegate finds that disclosure of the proceedings beyond those authorized to attend would be detrimental to the foreign policy interests of the United States, and determines, in consultation with the Administrator, the Secretary of State, and the Attorney General, that a meeting shall not be open to interested persons or that attendance by interested persons shall be limited.

(d) The requirements of this section do not apply to meetings of bodies created by the International Energy Agency except that no participant in a voluntary agreement may attend any meeting of any such body held to carry out a voluntary agreement or to develop or to carry out a plan of action unless a full-time Federal employee is present.

§ 209.34 Maintenance of records.

(a) The Administrator or his delegate shall keep a verbatim transcript of any meeting held pursuant to this subpart except where (1) due to considerations of time or other overriding circumstances, the keeping of a verbatim transcript is not practicable, or (2) principal participants in the meeting are representatives of foreign governments. If any such record other than a verbatim transcript, is kept by a designee who is not a full-time Federal employee, that record shall be submitted to the full-time Federal employee in attendance at the meeting who shall review the record, promptly make any changes he deems necessary to make the record full and complete, and shall notify the designee of such changes.

(b)(1) Except as provided in paragraphs (b) (2) through (4) of this section, participants shall keep a full and complete record of any communication (other than in a meeting held pursuant to this subpart) between or among themselves or with any other member of a petroleum industry group created by the International Energy Agency, or subgroup thereof for the purpose of carrying out a voluntary agreement or developing or carrying out a plan of action under this subpart, except that where there are several communications within the same day involving the same participants, they may keep a cumulative record for the day. The parties to a communication may agree among themselves who shall keep such record. Such record shall include the names of the parties to the communication and the organizations, if any, which they represent; the date of communication; the means of communication, and a description of the communication in sufficient detail to convey adequately its substance.

(2) Where any communication is written (including, but not limited to, telex, telegraphic, telecopied, microfilmed and computer printout material), and where such communication demonstrates on its face that the originator or some other source furnished a copy of the communication to the Office of International Affairs, Department of Energy with the notation “Voluntary Agreement” on the first page of the document, no participants need record such a communication or send a further copy to the Department of Energy. The Department of Energy may, upon written notice to participants, from time to time, or with reference to particular types of documents, require deposit with other offices or officials of the Department of Energy. Where such communication demonstrates that it was sent to the Office of International Affairs, Department of Energy with the notation “Voluntary Agreement” on the first page of the document, or such other offices or officials as the Department of Energy has designated pursuant to this section, it shall satisfy paragraph (c) of this section, for the purpose of deposit with the Department of Energy.

(3) To the extent that any communication is procedural, administrative or ministerial (for example, if it involves the location of a record, the place of a meeting, travel arrangements, or similar matters) only a brief notation of the date, time, persons involved and description of the communication need be recorded; except that during an IEA emergency allocation exercise or an allocation systems test such a non-substantive communication between members of the Industry Supply Advisory Group (ISAG) which occur within IEA headquarters need not be recorded.

(4) To the extent that any communication involves matters which recapitulate matters already contained in a full and complete record, the substance of such matters shall be identified, but need not be recorded in detail, provided that reference is made to the record and the portion thereof in which the substance is fully set out.

(c) Except where the Department of Energy otherwise provides, all records and transcripts prepared pursuant to paragraphs (a) and (b) of this section, shall be deposited within seven (7) days after the close of the week (ending Saturday) of their preparation during an international energy supply emergency or a test of the IEA emergency allocation system, and within fifteen (15) days after the close of the month of their preparation during periods of non-emergency, together with any agreement resulting therefrom, with the Department of Energy and shall be available to the Department of Justice, the Federal Trade Commission, and the Department of State. Such records and transcripts shall be available for public inspection and copying to the extent set forth in subpart D. Any person depositing materials pursuant to this section shall indicate with particularity what portions, if any, the person believes are not subject to disclosure to the public pursuant to subpart D and the reasons for such belief.

(d) Any meeting between a participant and an official of DOE for the purpose of carrying out a voluntary agreement or developing or carrying out a plan of action shall, if not otherwise required to be recorded pursuant to this section, be recorded by such official as provided in § 204.5.

(e) During international oil allocation under chapters III and IV of the IEP or during an IEA allocation systems test, the Department of Energy may issue such additional guidelines amplifying the requirements of these regulations as the Department of Energy determines to be necessary and appropriate.

(Approved by the Office of Management and Budget under Control No. 1905-0067)

(Federal Energy Administration Act of 1974, Pub. L. 93-275, as amended; E.O. 11790, 39 FR 23185; E.O. 11930, 41 FR 32397; Energy Policy and Conservation Act, Pub. L. 94-163; E.O. 11912, 41 FR 15825; Department of Energy Organization Act, Pub. L. 95-91, 91 Stat. 565, E.O. 12009, 42 FR 46267)

[41 FR 6754, Feb. 13, 1976, as amended at 43 FR 12854, Mar. 28, 1978; 46 FR 63209, Dec. 31, 1981]

§ 209.41 Availability of information relating to meetings and communications.

(a) Except as provided in paragraph (b) of this section, records or transcripts prepared pursuant to this subpart shall be available for public inspection and copying in accordance with section 552 of title 5, United States Code and part 202 of this title.

(b) Matter may be withheld from disclosure under section 552(b) of title 5 only on the grounds specified in:

(1) Section 552(b)(1), applicable to matter specifically required by Executive Order to be kept secret in the interest of the national defense or foreign policy. This section shall be interpreted to include matter protected under Executive Order No. 11652 of March 8, 1972, establishing categories and criteria for classification, as well as any other such orders dealing specifically with disclosure of IEP related materials;

(2) Section 552(b)(3), applicable to matter specifically exempted from disclosure by statute; and

(3) So much of section 552(b)(4) as relates to trade secrets.

§ 210.1 Records.

(a) The recordkeeping requirements that were in effect on January 27, 1981, in parts 210, 211, and 212 will remain in effect for (1) all transactions prior to February 1, 1981; and (2) all allowed expenses incurred and paid prior to April 1, 1981 under § 212.78 of part 212. These requirements include, but are not limited to, the requirements that were in effect on January 27, 1981, in § 210.92 of this part; in §§ 211.67(a)(5)(ii); 211.89; 211.109, 211.127; and 211.223 of part 211; and in §§ 212.78(h)(5)(ii); 212.78(h)(6); 212.83(c)(2)(iii)(E)(I); 212.83(c)(2)(iii)(E)(II); 212.83(c)(2)(iii); “Fi t”; 212.83(i); 212.93(a); 212.93(b)(4)(iii)(B)(I); 212.93(i)(4); 212.94(b)(2)(iii); 212.128; 212.132; 212.172; and § 212.187 of part 212.

(b) Effective February 5, 1985, paragraph (a) of this section shall apply, to the extent indicated, only to firms in the following categories. A firm may be included in more than one category, and a firm may move from one category to another. The fact that a firm becomes no longer subject to the recordkeeping requirements of one category shall not relieve that firm of compliance with the recordkeeping requirements of any other category in which the firm is still included.

(1) Those firms which are or become parties in litigation with DOE, as defined in paragraph (c)(1) of this section. Any such firm shall remain subject to paragraph (a) of this section. DOE shall notify the firm in writing of the final resolution of the litigation and whether or not any of its records must be maintained for a further period. DOE shall notify a firm which must maintain any records for a further period when such records are no longer needed.

(2)(i) Those firms which as of November 30 1984, have completed making all restitutionary payments required by an administrative or judicial order, consent order, or other settlement or order but which payments are on February 5, 1985, still subject to distribution by DOE. This requirement is applicable to only those firms listed in appendix B. Any such firm shall maintain all records for the time period covered by the administrative or judicial order, consent order, or other settlement or order requiring the payments, evidencing sales volume data for each product subject to controls and customers' names and addresses, until one of the following: June 30, 1985, unless this period is extended on a firm-by-firm basis; the end of the individual firm's extension; or the firm is notified in writing that its records are no longer needed.

(ii) Those firms which as of November 30, 1984, are required to make restitutionary or other payments pursuant to an administrative or judicial order, consent order, or other settlement or order. Any such firm shall remain subject to paragraph (a) of this section until the firm completes all restitutionary payments required by the administrative or judicial order, consent order, or other settlement or order. However, after completing all such payments, a firm shall maintain all records described in paragraph (b)(2)(i) of this section until one of the following: Six months after the firm completes all such payments, unless this period is extended on a firm-by-firm basis; the end of the individual firm's extension; or the firm is notified in writing that its records are no longer needed.

(3)(i) Those firms with completed audits in which DOE has not yet made a determination to initiate a formal enforcement action and firms under audit which do not have outstanding subpoenas. Any such firm shall maintain all records for the period covered by the audit including all records necessary to establish historical prices or volumes which serve as the basis for determining the lawful prices or volumes for any subsequent regulated transaction which is subject to audit, until one of the following: June 30, 1985, unless this period is extended on a firm-by-firm basis; the end of the individual firm's extension; or the firm is notified in writing by DOE that its records are no longer needed. However, if a firm in this group shall become a party in litigation, the firm shall then be subject to the recordkeeping requirements for firms in litigation set forth in paragraph (b)(1) of this section.

(ii) Those firms under audit which have outstanding subpoenas on February 5, 1985, or which receive subpoenas at any time thereafter or which have supplied records for an audit as the result of a subpoena enforced after November 1, 1983. Any such firm shall remain subject to paragraph (a) of this section until two years after ERA has notified the firm in writing that is in full compliance with the subpoena or until ERA has received from the firm a sworn certification of compliance with the subpoena as required by 10 CFR 205.8. However, if a firm in this group shall become a party in litigation, the firm shall then be subject to the recordkeeping requirements for firms in litigation set forth in paragraph (b)(1) of this section.

(4) Those firms which are subject to requests for data necessary to verify that crude oil qualifies as “newly discovered” crude oil under 10 CFR 212.79. Any such firm shall maintain the records evidencing such data until one of the following: June 30, 1985, unless this period is extended on a firm-by-firm basis; the end of an individual firm's extension; or the firm is notified in writing by DOE that its records are no longer needed. However, if a firm in this group shall become a party in litigation, the firm shall then be subject to the recordkeeping requirements for firms in litigation set forth in paragraph (b)(1) of this section.

(5) Those firms whose records are determined by DOE as necessary to complete the enforcement activity relating to another firm which is also subject to paragraph (a) of this section unless such firms required to keep records have received certified notice letters specifically describing the records determined as necessary. At that time, the specific notice will control the recordkeeping requirements. These firms have been identified in appendix A. Any such firm shall maintain these records until one of the following: June 30, 1985, unless this period is extended on a firm-by-firm basis; the end of the individual firm's extension; or the firm is notified in writing by DOE that its records are no longer needed.

(6) Those firms which participated in the Entitlements program. Any such firm shall maintain its Entitlements-related records until six months after the final judicial resolution (including any and all appeals) of Texaco v. DOE, Nos. 84-391, 84-410, and 84-456 (D. Del.), or the firm is notified by DOE that its records are no longer needed, whichever occurs first.

(c) For purposes of this section:

(1) A firm is “a party in litigation” if:

(i)(A) The firm has received a Notice of Probable Violation, a Notice of Probable Disallowance, a Proposed Remedial Order, or a Proposed Order of Disallowance; or

(B) The firm and DOE are parties in a lawsuit arising under the Emergency Petroleum Allocation Act of 1973, as amended (15 U.S.C. 751 et seq.) or 10 CFR parts 205, 210, 211, or 212; and

(ii)(A) There has been no final (that is, non-appealable) administrative or judicial resolution, or

(B) DOE has not informed the firm in writing that the Department has completed its review of the matter.

(2) A firm means any association, company, corporation, estate, individual, joint-venture, partnership, or sole proprietorship, or any other entity, however organized, including charitable, educational, or other eleemosynary institutions, and state and local governments. A firm includes a parent and the consolidated and unconsolidated entities (if any) which it directly or indirectly controls.

Appendix A to 10 CFR 210.1—Third Party Firms Name of Firm A & R, Inc. A. J. Petroleum ADA Resources, Inc. ATC Petroleum Abbco Petroleum, Inc. Ada Oil Company Adams Grocery Advanced Petroleum Distributing Co. Agway Inc. Allegheny Petroleum Corp. Alliance Oil and Refining Company Allied Chemical Corp. Allied Transport Amerada Hess Corp. American Natural Crude Oil Assoc. Amoco Production Company Amorient Petroleum, Inc. An-Son Transportation Co. Anadarko Products Co. Andrus Energy Corp. Antler Petroleum Arco Pipeline Company Armada Petroleum Corp. Armour Oil Company Arnold Brooks Const. Inc. Ashland Oil Asiatic Petroleum Co. Aspen Energy, Inc. Athens General Hospital Atlantic Pacific Energy, Inc. Atlas Processing Company B & B Trading Company BLT, Inc. BPM, Ltd. Baker Services, Inc. Basin Inc. Basin Petroleum, Inc. Beacon Hill Mobil Belcher Oil Company Bighart Pipeline Company Bigheart Pipeline Corp Bowdoin Square Exxon Bowdoin Super Service (Sunoco) Brio Petroleum, Inc. Brixon C.E. Norman CPI Oil & Refining CRA-Farmland Industries, Inc. Calcaseiu Refining, Ltd. Carbonit Houston, Inc. Carr Oil Company, Inc. Castle Coal & Oil Co. Central Crude Corporation Century Trading Co. Charter Crude Oil Chastain Vineyard Chevron USA, Inc. Cibro Petroleum, Inc. Cirillo Brothers Cities Service (Citgo) Station Cities Service Company Cities Service Midland City of Athens Clarke County Board of Education Claude E. Silvey Coastal Corporation (The) Coastal Petroleum and Supply Inc. Coastal States Trading Company Commonwealth Oil Refining Co., Inc. Coral Petroleum Canada, Inc. Coral Petroleum, Inc. Corex of Georgia Cothran Interstate Exxon Couch's Standard Chevron Cougar Oil Marketers Inc. Crude Company (The) Crystal Energy Corporation Crystal Refining D & E Logging DDC Corporation of America Darrell Williamson Davis Ellis Days Inn of America, Inc. Delta Petroleum & Energy Corp. Derby & Company, Inc. Derby Refining Company Dewveall Petroleum Dixie Oil Company Dixon Oil Co. Don Hardy Donald Childs Dow Chemical Company Dr. Joe L. Griffeth Driver Construction Co. Drummond Brothers, Inc. Duffie Monroe & Sons Co., Inc. ECI (A/K/A Energy Cooperative Inc.) Earnest Dalton Earth Resources Trading Eastern Seaboard Petroleum, Inc. Elmer Hammon Elvin Knight Empire Marketing, Inc. Encorp. Energy Cooperative, Inc. Energy Distribution Co. Englehard Corporation Englehard Oil Corporation Entex Evans Oil Co. Exxon Company F & S Trading Company, Inc. Farmers Union Central Exchange, Inc. Farmland Industries Inc. Fasgo, Inc. Fedco Oil Company Federal Employees Distributing Co. Fitzpatrick Spreader Flutz Oil Company Flying J. Inc. Foremost Petroleum Four Corners Pipe Line Frank Katz Frank W. Abrahamsen Frank's Butane, Inc. Friendswood Refinery Frontier Manor Collection Fuel Oil Supply & Terminaling, Inc. G. C. Clark Company GPC Marketing Company Gary Refining Co. Geer Tank Trucks, Inc. Gene Clary Gene McDonald General Crude Oil Company Geodynamics Oil & Gas Inc. George Kennedy George Smith Chevron Gleason Oil Company Glenn Company Globe Oil Co. Godfrey's Standard Service Good Hope Industries, Inc. Good Hope Refineries, Inc. Granite Oil Company Guam Oil & Refining Co., Inc. Gulf States Oil & Refining Company H. D. Adkinson H. H. Dunson H.S. & L, Inc. HNG Oil Company Harbor Petroleum, Inc. Harbor Trading Harmony Grove Mills, Inc. Harry Rosser Hast Oil, Inc. Heet Gas Company Henry Alva Mercer Herndon Oil & Gas Company Horizon Petroleum Company Houston Oil & Minerals Products Co. Houston Oil & Refining Howell Corporation Hurricane Trading Company, Inc. Hydrocarbon Trading and Transport Co. Inco Trading Independent Refining Corp. Independent Trading Corporation Indiana Refining, Inc. Intercontinental Petroleum Corp. International Crude Corporation International Petro International Petroleum Trading, Inc. International Processors Isthmus Trading Corporation J & M Transport J. & J.'s Fast Stop J. A. Rackerby Corporation J. H. Baccus J. H. Baccus & Co. J. J. Williamson J. M. Petroleum Corporation JPK Industries Jack W. Grigsby Jaguar Petroleum, Inc. James L. Bush Jay Petroleum Company Jay-Ed Petroleum Company John W. McGowan Kalama Chemical, Inc. Kelly Trading Corp. Kenco Refining Kerr-McGee Corporation Koch Fuel Koch Industries, Inc. Kocolene Oil Kocolene Station L & L Resources, Inc. L.S. Parker LaGloria Oil & Gas LaJet, Inc. Lamar Refining Co. Langham Petroleum Corp. Larry Roberts Laurel Oil, Inc. Lee Allen Lincoln Land Sales Company Listo Petroleum Inc. Longview Refining Corp. Love's Standard Lucky Stores Inc. M.L. Morrow Magna Energy Corporation Magnolia Oil Company Mansfield Oil Co. Mapco Petroleum, Inc. Mapco, Inc. Marion Trading Co. Marlex Oil & Refining, Inc. Marlin Petroleum, Inc. Martin Oil Company Mathew's Grocery McAuleep Oil Co. McAuley Oil Company Meadows Gathering, Inc. Mellon Energy Products Co. Merit Petroleum, Inc. Metro Wash, Inc. Miller Oil Purchasing Co. Minor Oil, Inc. Minro Oil, Inc. Mitchell Oil Co. Mitsui & Co. (USA) Inc. Mobil Bay Refining Company Montgomery Well Drilling Mundy Food Market Munford, Inc. Mutual Petroleum NRG Oil Company National Convenience Stores National Cooperative Refinery Nicholson Grocery and Gas North American Petroleum Northeast Petroleum Corp. Northeast Petroleum Corporation Northgate Auto Center Northwest Crude, Inc. Nova Refining Corp. Occidental Petroleum Corp. (includes Permia) Ocean Drilling and Exploration Co. Oil Exchange, Inc. Oilco Omega Petroleum Corp. Otoe Corporation Oxxo Energy Group, Inc. P & O Falco, Inc. P. L. Heatley Co. PEH, Inc. PIB, Inc. PSW Distributors Company Pacific Refinery, Inc. Pacific Resources, Inc. Pan American Products Corp. Par Brothers Food Store Pauley Petroleum Inc. Pennzoil Co. Permian Corporation (The) Pescar International Corp. Pescar International Trading Co. Petraco (U.S.A.) Inc. Petrade International Petrol Products, Inc. Phillips Petroleum Company Phoenis Petroleum Co. Phoenix Petroleum Co. Pine Mountains Poole Petroleum Port Petroleum Presley Oil Co. Procoil Inc. Publiker Industries, Inc. Pyramid Dist. Co., Inc. Questor Crude Oil Company Quitman Refining Co. R. H. Garrett Paving Ra-Gan Fuel, Inc. Reeder Distributing Co. Reeder Distributors Reese Exploration Co. Research Fuels Inc. Revere Petroleum Co. Richardson-Ayres, Inc. Robert Bishop Robert Patrick Roberts Grocery Rock Island Refining Corporation Rogers Oil Company Roy Baerne Russell Oil Company S. G. Coplen SECO (Scruggs Energy) Saber Crude Oil, Inc. Saber Refining Company Salem Ventures, Inc. Samson Resources Company Santa Fe Energy Products Co. Saye's Truck Stop Scandix Oil Limited Score, Inc. Scruggs Energy Company Scurlock Oil Company Scurry Oil Company Seamount Petroleum Company Seaview Petroleum Company Sector Refining, Inc. Selfton Miller Shepherd Trading Corporation Shulze Processing Sigmor Corporation Skelly Oil Company South Hampton Refining Company South Texas LP Gas Co. Southern Crude Oil Resources Southern Terminal & Transport, Ltd. Southern Union Company Southwest Petro. Energy Southwest Petrochem Standard Oil Co. (Ohio) Standard Oil Co. of California Standard Oil Company (Indiana) Standard Oil Company (Ohio) Sterling Energy Company Steve Childs Stix Gas Company, Inc. Sunset Grocery Sunset Oil & Refining, Inc. Swanee Petroleum Company T & P Enterprises T. B. Eley T. E. Jawell Tauber Oil Company Tenneco, Inc. Tesoro Crude Oil Company Texana Oil & Gas Corp. Texas American Petrochemicals (TAP) Texas City Refining Texas Eastern Transmission Corp. Texas Energy Reserve Corporation Texas Pacific Oil Company Thomas Cockvell Thomas Petroleum Products, Inc. Thorton Oil Company Thyssen Incorporated Tiger Petroleum Company Time Oil Co. Tipperary Refining Company Tom Banks Tom Smith Tomlinson Petroleum, Inc. Tosco Corporation Total Petroleum, Inc. Trans-Texas Petroleum Corp. Transco Trading Company Turboil Oil and Refining Two Rivers Oil & Gas Co., Inc. U-Fill 'er Up USA Gas, Inc. Uni Oil Company Union Oil of California Doram Energy United Petroleum Marketing United Refining Company United Refining, Inc. Universal Rundle Val-Cap, Inc. Vedetta Oil Trading, Inc. Vedette Oil Trading, Inc. Vickers Energy Corp. W. C. Colquitt W. T. Strickland W. W. Blanton W.A. Nunnally, Jr., Construction Co. W.D. Porterfiled Wellven, Inc. West Texas Marketing Corp. Western Crude Oil, Inc. Western Fuels, Inc. Wight Nurseries of Oglethorpe Co. William Seabolt Wilson's Used Tractors Windsor Gas Corp. Wyoming Refining

Appendix B to 10 CFR 210.1—Firms With Completed Payments Subject to Distribution

The following firms have completed making restitutionary payments to DOE but their payments are still subject to distribution by DOE. Each such firm must maintain relevant records until June 30, 1985, unless this period is extended on a firm-by-firm basis. Relevant records are all records of the firm, including any affiliates, subsidiaries or predecessors in interest, for the time period covered by the judicial or administrative order, consent order, or other settlement or order requiring the payments, evidencing sales volume data for each product subject to controls and customers' names and addresses.

Name of firm | Location

A. Tarricone Inc | Yonkers, NY.

Adolph Coors Company | Golden, CO.

Allied Materials Corp & Excel | Oklahoma City, OK.

Aminoil USA, Inc | Houston, TX.

Amtel, Inc | Providence, RI.

Apache Corporation | Minneapolis, MN.

APCO Oil Corporation | Oklahoma City, OK.

Arapaho Petroleum, Inc | Breckenridge, TX.

Arkansas Louisiana Gas Company | Shreveport, LA.

Arkla Chemical Corporation | Shreveport, LA.

Armour Oil Company | San Diego, CA.

Associated Programs Inc | Boca Raton, FL.

Atlanta Petroleum Production | Fort Worth, TX.

Automatic Heat, Inc

Ayers Oil Company | Canton, MD.

Aztex Energy Corporation | Knoxville, TN.

Bak Ltd | Narbeth, PA.

Bayou State Oil/IDA Gasoline | Shreveport, LA.

Bayside Fuel Oil Depot Corp | Brooklyn, NY.

Belridge Oil Company | Los Angeles, CA.

Blaylock Oil Co., Inc | Homestead, FL.

Blex Oil Company | Minneapolis, MN.

Boswell Oil Company | Cincinnati, OH.

Box, Cloyce K | Dallas, TX.

Breckenridge Gasoline Company | Kansas City, KS.

Brownlie, Wallace, Armstrong | Denver, CO.

Bucks Butane & Propane Service | San Jose, CA.

Budget Airport Associates | Los Angeles, CA.

Busler Enterprises Inc | Evansville, IN.

Butler Petroleum Corp | Butler, PA.

C.K. Smith & Company, Inc | Worcester, MA.

Cap Oil Company | Tulsa, OK.

Champlain Oil Co., Inc | South Burlington, VT.

Chapman, H.A | Tulsa, OK.

Cibro Gasoline Corporation | Bronx, NY.

City Service Inc | Kalispell, MT.

Coastal Corporation | Houston, TX.

Coline Gasoline Corporation | Santa Fe Springs, CA.

Collins Oil Co | Aurora, IL.

Columbia Oil Co | Hamilton, OH.

Conlo Service Inc | East Farmingdale, NY.

Conoco, Inc | Houston, TX.

Consolidated Gas Supply Corp | Hastings, WV.

Consolidated Leasing Corp | Los Angeles, CA.

Consumers Oil Co | Rosemead, CA.

Continental Resources Company | Winter Park, FL.

Cordele Operating Co | Corsicana, TX.

Cosby Oil Co., Inc | Whittier, CA.

Cougar Oil Co | Selma, AL.

Cross Oil Co., Inc | Wellstone, MO.

Crystal Oil Company (formerly Vallery Corp.) | Shreveport, LA.

Crystal Petroleum Co | Corpus Christi, TX.

Devon Corporation | Oklahoma City, OK.

Dorchester Gas Corp | Dallas, TX.

E.B. Lynn Oil Company | Allentown, PA.

E.M. Bailey Distributing Co | Paducah, KY.

Eagle Petroleum Co | Wichita Falls, TX.

Earls Broadmoor | Houma, LA.

Earth Resources Co | Dallas, TX.

Eastern Petroleum Corp | Annapolis, MD.

Edington Oil Co | Los Angeles, CA.

Elias Oil Company | West Palm Beach, FL.

Elm City Filling Stations, Inc | New Haven, CT.

Empire Oil Co | Bloomington, CA.

Endicott, Eugene | Redmond, OR.

Enserch Corp | Dallas, TX.

Enterprise Oil & Gas Company | Detroit, MI.

F.O. Fletcher, Inc | Tacoma, WA.

Fagadau Energy Corporation | Dallas, TX.

Farstad Oil Company | Minot, ND.

Field Oil Co., Inc | Ogden, UT.

Fine Petroleum Co., Inc | Norfolk, VA.

Foster Oil Co | Richmond, MI.

Franks Petroleum Inc | Shreveport, LA.

Froesel Oil Co

Gas Systems Inc | Ft. Worth, TX.

Gate Petroleum Co., Inc | Jacksonville, FL.

GCO Minerals Company | Houston, TX.

Getty Oil Company | Los Angeles, CA.

Gibbs Industries, Inc | Revere, MA.

Glaser Gas Inc | Calhoun, CO.

Glover, Lawrence H | Patchogue, NY.

Goodman Oil Company | Boise, ID.

Grant Rent a Car Corporation | Los Angeles, CA.

Grimes Gasoline Co | Tulsa, OK.

Gulf Energy & Development Corp. (also known as Gulf Energy Development Corp.) | San Antonio, TX.

Gulf Oil Corp | Houston, TX.

Gull Industries, Inc | Seattle, WA.

H.C. Lewis Oil Co | Welch, WV.

Hamilton Brothers Petroleum Co | Denver, CO.

Harris Enterprise Inc | Portland, OR.

Heller, Glenn Martin | Boston, MA.

Hendel's Inc | Waterford, CT.

Henry H. Gungoll Associates | Enid, OK.

Hertz Corporation, The | New York, NY.

Hines Oil Co | Murphysboro, IL.

Horner & Smith, A Partnership | Houston, TX.

Houston Natural Gas Corp | Houston, TX.

Howell Corporation/Quintana Refinery Co | Houston, TX.

Hunt Industries | Dallas, TX.

Hunt Petroleum Corp | Dallas, TX.

Husky Oil Company of Delaware | Cody, WY.

Ideal Gas Co., Inc | Nyassa, OR.

Independent Oil & Tire Company | Elyria, OH.

Inland USA, Inc | St. Louis, MO.

Inman Oil Co | Salem, MO.

Internorth, Inc | Omaha, NE.

J.E. DeWitt, Inc | South El Monte, CA.

J.M. Huber Corp | Houston, TX.

James Petroleum Corp | Bakersfield, CA.

Jay Oil Company | Fort Smith, AR.

Jimmys Gas Stations Inc | Auburn, ME.

Jones Drilling Corporation | Duncan, OK.

Juniper Petroleum Corporation | Denver, CO.

Kansas-Nebraska Natural Gas Co | Hastings, NE.

Keller Oil Company, Inc | Effingham, IL.

Kenny Larson Oil Co., Inc

Kent Oil & Trading Company | Houston, TX.

Key Oil Co., Inc | Tuscaloosa, AL.

Key Oil Company | Bowling Green, KY.

Kiesel Co | St. Louis, MO.

King & King Enterprise | Kansas City, MO.

Kingston Oil Supply Corp | Port Ewen, NY.

Kirby Oil Company

L & L Oil Co., Inc | Belle Chasse, LA.

L.P. Rech Distributing Co | Roundup, MT.

La Gloria Oil and Gas Co | Houston, TX.

Lakes Gas Co., Inc | Forest Lake, MN.

Lakeside Refining Co./Crystal | Southfield, MI.

Landsea Oil Company | Irvine, CA.

Leathers Oil Co., Inc | Portland, OR.

Leese Oil Company | Pocatello, ID.

Leonard E. Belcher, Inc | Springfield, MA.

Lincoln Land Oil Co | Springfield, IL.

Liquid Products Recovery | Houston, TX.

Little America Refining Co | Salt Lake City, UT.

Lockheed Air Terminal Inc | Burbank, CA.

Lowe Oil Company | Clinton, MO.

Lucia Lodge Arco | Big Sur, CA.

Luke Brothers Inc | Calera, OK.

Lunday Thargard Oil | South Gate, CA.

Malco Industries Inc | Cleveland, OH.

Mapco, Inc | Tulsa, OK.

Marine Petroleum Co | St. Louis, MO.

Marlen L. Knutson Dist. Inc | Stanwood, WA.

Martin Oil Service, Inc | Blue Island, IL.

Martinoil Company | Fresno, CA.

Marvel Fuel Oil and Gas Co

McCarty Oil Co | Wapakoneta, OH.

McCleary Oil Co., Inc | Chambersburg, OH.

McClure's Service Station | Salisbury, PA.

McTan Corporation | Abilene, TX.

Mesa Petroleum Company | Amarillo, TX.

Midway Oil Co | Rock Island, IL.

Midwest Industrial Fuels, Inc | La Crosse, WI.

Mississippi River Transmission | St. Louis, MO.

Mitchell Energy Corp | Woodlands, TX.

Montana Power Co | Butte, MT.

Moore Terminal and Barge Co | Monroe, LA.

Mountain Fuel Supply Company | Salt Lake City, UT.

Moyle Petroleum Co | Rapid City, SD.

Mustang Fuel Corporation | Oklahoma City, OK.

Naphsol Refining Company | Muskegon, MI.

National Helium Corporation | Liberal, KS.

National Propane Corp | Wyandanch, NY.

Navajo Refining Company | Dallas, TX.

Nielson Oil & Propane, Inc | West Point, NE.

Northeast Petroleum Industries | Chelsea, MA.

Northeastern Oil Co., Inc | Gillette, WY.

Northwest Pipeline Corp | Salt Lake City, UT.

O'Connell Oil Co | Pittsfield, MA.

Oceana Terminal Corp. et al | Bronx, NY.

OKC Corporation | Dallas, TX.

Olin Corporation | Stamford, CT.

Oneok Incorporation | Tulsa, OK.

Ozona Gas Processing Plant | Tyler, TX.

Pacer Oil Co. of Florida, Inc | Ormond Beach, FL.

Pacific Northern Oil | Seattle, WA.

Panhandle Eastern (Century) | Houston, TX.

Parade Company | Shreveport, LA.

Parham Oil Corporation | Nashville, TN.

Pasco Petroleum Co., Inc | Phoenix, AZ.

Pedersen Oil, Inc | Silverdale, WA.

Pennzoil Company | Houston, TX.

Perry Gas Processors, Inc | Odessa, TX.

Peoples Energy Corp | Chicago, IL.

Perta Oil Marketing Corp | Beverly Hills, CA.

Peterson Petroleum Inc | Hudson, NY.

Petro-Lewis Corp | Denver, CO.

Petrolane-Lomita Gasoline Co | Long Beach, CA.

Petroleum Heat & Power Co. Inc | Stamford, CT.

Petroleum Sales/Services Inc | Buffalo, NY.

Pioneer Corp | Amarillo, TX.

Planet Engineers Inc | Denver, CO.

Plateau, Inc | Albuquerque, NM.

Plaquemines Oil Sales | Belle Chasse, LA.

Point Landing Inc | Hanrahan, LA.

Port Oil Company, Inc | Mobile, AL.

Post Petroleum Co | West Sacramento, CA.

Power Pak Co., Inc | Houston, TX.

Pride Refining, Inc | Abilene, TX.

Pronto Gas Co | Abilene, TX.

Propane Gas & Appliance Co | New Brockton, AL.

Prosper Energy Corporation | Dallas, TX.

Pyro Energy Corporation | Evansville, IN.

Pyrofax Gas Corporation | Houston, TX.

Quaker State Oil | Oil City, PA.

Quarles Petroleum, Inc | Fredericksburg, VA.

Resources Extraction Process | Houston, TX.

Reynolds Oil Co | Kremling, CO.

Richardson Ayers Jobbers, Inc | Alexandria, LA.

Riverside Oil, Inc | Evansville, IN.

Roberts Oil Co. Inc | Albuquerque, NM.

Rookwood Oil Terminals Inc | Cincinnati, OH.

Saber Energy, Inc | Houston, TX.

Sanesco Oil Co | Escondido, CA.

Schroeder Oil Company | Carroll, IA.

Seminole Refining Inc | St. Marks, FL.

Sid Richardson Carbon & Gas | Ft. Worth, TX.

Sigmore Corporation | San Antonio, TX.

Southwestern Refining Co., Inc | Salt Lake City, UT.

Speedway Petroleum Co., Inc | Fitchburg, MA.

St. James Resources Corp | Boston, MA.

Standard Oil Co. (Indiana) | Chicago, IL.

Stinnes Inter Oil Inc | New York, NY.

Tenneco Oil Company | Houston, TX.

Texas/Arkansas/Colorado/Oklahoma/Oil Purchasing | Dallas, TX.

Texas Gas & Exploration | Dallas, TX.

Texas Oil & Gas Corporation | Dallas, TX.

Texas Pacific Oil Company, Inc | Dallas, TX.

The True Companies | Casper, WY.

Thompson Oil Inc | Purcellville, VA.

Tiger Oil Co | Yakima, WA.

Time Oil Company | Seattle, WA.

Tipperary Corp | Midland, TX.

Tippins Oil & Gas Co | Richmond, MO.

Triton Oil & Gas Corp | Dallas, TX.

U.S. Compressed Gas Company | King of Prussia, PA.

U.S. Oil Company | Combined Locks, WI.

U.S.A. Petroleum, Inc | Santa Monica, CA.

Union Texas Petroleum Corp | Houston, TX.

United Oil Company | Hillside, NJ.

Upham Oil & Gas Co | Mineral Wells, TX.

Vangas Inc | Fresno, CA.

VGS Corporation | Jackson, MS.

Waller Petroleum Company, Inc | Towson, MD.

Warren Holding Company | Providence, RI.

Warrior Asphalt Co. of Alabama | Tuscaloosa, AL.

Webco Southern Oil Inc | Smyrna, CA.

Wellen Oil Co | Jersey City, NJ

Wiesehan Oil Co

Willis Distributing Company | Erie, PA.

Winston Refining Company | Fort Worth, TX.

Witco Chemical Corporation | New York, NY.

World Oil Company | Los Angeles, CA.

Worldwide Energy Corp | Denver, CO.

Young Refining Corporation | Douglasville, GA.

Zia Fuels (G.G.C. Corp.) | Hobbs, NM.

(Approved by the Office of Management and Budget under control number 1903-0073)

[50 FR 4962, Feb. 5, 1985]

§ 212.78 Tertiary incentive crude oil.

Annual prepaid expenses report. By January 31 of each year after 1980, the project operator with respect to any enhanced oil recovery project for which a report had been filed previously with DOE pursuant to paragraph (h)(2)(i) of this section as that paragraph was in effect on January 27, 1981, shall file with DOE a report in which the operator shall certify to DOE (a) which of the expenses that had been reported previously to DOE pursuant to paragraph (h)(2)(i) of this section as that paragraph was in effect on January 27, 1981, were prepaid expenses; (b) the goods or services for which such expenses had been incurred and paid; (c) the dates on which such goods or services are intended to be used; (d) the dates on which such goods or services actually are used; (e) the identity of each qualified producer to which such prepaid expenses had been attributed; and (f) the percentage of such prepaid expenses attributed to each such qualified producer. An operator shall file an annual prepaid expenses report each year until it has reported the actual use of all the goods and services for which a prepaid expense had been incurred and paid. For purposes of this paragraph, a prepaid expense is an expense for any injectant or fuel used after September 30, 1981, or an expense for any other item to the extent that IRS would allocate the deductions (including depreciation) for that item to the period after September 30, 1981.

(Approved by the Office of Management and Budget under OMB Control No.: 1903-0069)

[46 FR 43654, Aug. 31, 1981, as amended at 46 FR 63209, Dec. 31, 1981]

§ 215.1 Purpose.

The purpose of this part is to set forth certain requirements pursuant to section 13 of the Federal Energy Administration Act to furnish information concerning foreign crude oil supply arrangements. The authority set out in this section is not exclusive.

§ 215.2 Definitions.

As used in this subpart:

Administrator means the Federal Energy Administrator or his delegate.

DOE means the Department of Energy.

Host government means the government of the country in which crude oil is produced and includes any entity which it controls, directly or indirectly.

Person means any natural person, corporation, partnership, association, consortium, or any other entity doing business or domiciled in the U.S. and includes (a) any entity controlled directly or indirectly by such a person and (b) the interest of such a person in any joint venture, consortium or other entity to the extent of entitlement to crude oil by reason of such interest.

§ 215.3 Supply reports.

(a) Any person having the right to lift for export by virtue of any equity interest, reimbursement for services, exchange or purchase, from any country, from fields actually in production, (1) an average of 150,000 barrels per day or more of crude oil for a period of at least one year, or (2) a total of 55,000,000 barrels of crude oil for a period of less than one year, or (3) a total of 150,000,000 barrels of crude oil for the period specified in the agreement, pursuant to supply arrangements with the host government, shall report the following information.

(1) Parties (including partners and percentage interest, where applicable).

(2) Grade or grades available; loading terminal or terminals.

(3) Government imposed production limits, if any.

(4) Minimum lifting obligation and maximum lifting rights.

(5) Details of lifting options within the above limits.

(6) Expiration and renegotiation dates.

(7) Price terms including terms of rebates, discounts, and number of days of credit calculated from the date of loading.

(8) Other payments to or interests retained by the host government (i.e. taxes, royalties, and any other payment to the host government) expressed in terms of the applicable rates or payment or preemption terms, or the base to which those rates or terms are applied.

(9) Related service or other fees and cost of providing services.

(10) Restrictions on shipping or disposition.

(11) Other material contract terms.

(b) Reports under this section shall be made no later than (1) 60 days after final issuance of reporting forms implementing this regulation, as announced in the Federal Register, (2) fourteen days after the date when supply arrangements are entered into, or (3) fourteen days after the initial lifting under an agreement in which the parties have tentatively concurred but not signed, whichever occurs first. Reporting shall be based on actual practice between the parties. Material changes in any item which must be reported pursuant to this section shall be reported no later than 30 days after a person receives actual notice of such changes.

(c) Where reports under this section by each participant in a joint operation would be impracticable, or would result in the submission of inaccurate or misleading information, the participants acting together may designate a single participant to report on any of the rights, obligations, or limitations affecting the operation as a whole. Any such designation shall be signed by a duly authorized representative of each participant, and shall specify:

(1) The precise rights, obligations, or limitations to be covered by the designation; and

(2) The reasons for the designation. Such designations shall be submitted to the Assistant Administrator for International Energy Affairs, and shall take effect only upon his written approval, which may at any time be revoked.

§ 215.4 Production of contracts and documents.

Whenever the Administrator determines that certain foreign crude oil supply information is necessary to assist in the formulation of energy policy or to carry out any other function of the Administrator, he may require the production by any person of any agreement or document relating to foreign oil supply arrangements or reports related thereto. Such material shall be provided pursuant to the conditions prescribed by the Administrator at the time of such order or subsequently. As used in this section, the term “agreement” includes proposed or draft agreements, and agreements in which the parties have tentatively concurred but have not yet signed, between or among persons and a host country.

§ 215.5 Pricing and volume reports.

To the extent not reported pursuant to § 215.3, any person lifting for export crude oil from a country shall report to the DOE within 30 days of the date on which he receives actual notice:

(a) Any change (including changes in the timing of collection) by the host government in official selling prices, royalties, host government taxes, service fees, quality or port differentials, or any other payments made directly or indirectly for crude oil; changes in participation ratios; changes in concessionary arrangements; and

(b) Any changes in restrictions on lifting, production, or disposition.

§ 215.6 Notice of negotiations.

Any person conducting negotiations with a host government which may reasonably lead to the establishment of any supply arrangement subject to reporting pursuant to § 215.3(a), or may reasonably have a significant effect on the terms and conditions of an arrangement subject to § 215.3(a), shall notify DOE of such negotiations. Such notice shall be made no later than the later of 30 days after the effective date of this regulation or within 14 days after such negotiations meet the conditions of this section, and shall specify all persons involved and the host government affected. Notice must be in writing to the Assistant Administrator for International Energy Affairs. Where this notice pertains to negotiations to modify a supply agreement previously reported to the Department of Energy under this part, such notice shall include the agreement serial number assigned to the basic agreement.

§ 216.1 Introduction.

(a) This part describes and establishes the procedures to be used by the Department of Energy (DOE) in considering and making certain findings required by section 101(c)(2)(A) of the Defense Production Act of 1950, as amended, 50 U.S.C. app. 2071(c)(2)(A) (DPA). Section 101(c) authorizes the allocation of, or priority performance under contracts or orders (other than contracts of employment) relating to, materials and equipment, services, or facilities in order to maximize domestic energy supplies if the findings described in section 101(c)(2) are made. Among these findings are that such supplies of materials and equipment, services, or facilities are critical and essential to maintain or further exploration, production, refining, transportation or the conservation of energy supplies or for the construction or maintenance of energy facilities. The function of finding that supplies are critical and essential was delegated to the Secretary of Energy pursuant to E.O. 12919 (59 FR 29525, June 7, 1994) and Department of Commerce Defense Priorities and Allocations System Delegation No. 2, 15 CFR part 700.

(b) The purpose of these regulations is to establish the procedures and criteria to be used by DOE in determining whether programs or projects maximize domestic energy supplies and whether or not supplies of materials and equipment, services, or facilities are critical and essential, as required by DPA section 101(c)(2)(A). The critical and essential finding will be made only for supplies of materials and equipment, services, or facilities related to those programs or projects determined by DOE to maximize domestic energy supplies. These regulations do not require or imply that the findings, on which the exercise of such authority is conditioned, will be made in any particular case.

(c) If DOE determines that a program or project maximizes domestic energy supplies and finds that supplies of materials and equipment, services, or facilities are critical and essential to maintain or further the exploration, production, refining, transportation or conservation of energy supplies or for the construction or maintenance of energy facilities, such determination and finding will be communicated to the Department of Commerce (DOC). If not, the applicant will be so informed. If the determination and finding described in this paragraph are made, DOC, pursuant to DPA section 101(c) and section 203 of E.O. 12919, will find whether or not: The supplies of materials and equipment, services, or facilities in question are scarce; and maintenance or furtherance of exploration, production, refining, transportation, or conservation of energy supplies or the construction or maintenance of energy facilities cannot be reasonably accomplished without exercising the authority specified in DPA section 101(c). If these additional two findings are made, DOC will notify DOE, and DOE will inform the applicant that it has been granted the right to use priority ratings under the Defense Priorities and Allocations System (DPAS) regulation established by the DOC, 15 CFR part 700.

[73 FR 10983, Feb. 29, 2008]

§ 216.2 Definitions.

As used in these regulations:

(a) Secretary means the Secretary of the Department of Energy.

(b) Applicant means a person requesting priorities or allocation assistance in connection with an energy program or project.

(c) Application means the written request of an applicant for assistance.

(d) Assistance means use of the authority vested in the President by DPA section 101(c) to implement priorities and allocation support.

(e) DHS means the Department of Homeland Security.

(f) DOC means the Department of Commerce.

(g) DOE means the Department of Energy.

(h) Defense Priorities and Allocations System Coordination Office means the Department of Energy, Office of Electricity.

(i) Eligible energy program or project means a designated activity which maximizes domestic energy supplies by furthering the exploration, production, refining, transportation or conservation of energy supplies or construction or maintenance of energy facilities within the meaning of DPA section 101(c), as determined by DOE.

(j) Facilities means all types of buildings, structures, or other improvements to real property (but excluding farms, churches or other places of worship, and private dwelling houses), and services relating to the use of any such building, structure, or other improvement.

(k) Materials and equipment means: (1) Any raw materials (including minerals, metals, and advanced processed materials), commodities, articles, components (including critical components), products, and items of supply; and

(2) Any technical information or services ancillary to the use of such raw materials, commodities, articles, components, products, or items.

(l) National Defense means programs for military and energy production or construction, military assistance to any foreign nation, stockpiling, space, and any directly related activity. Such term also includes emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195, et seq.) and critical infrastructure protection and restoration.

(m) Person means an individual, corporation, partnership, association, or any other organized group of persons, or legal successor or representative thereof, or any state or local government or agency thereof.

(n) Services include any effort that is needed for or incidental to:

(1) The development, production, processing, distribution, delivery, or use of an industrial resource, or critical technology item; or

(2) The construction of facilities.

[43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8311, Mar. 11, 1986; 73 FR 10983, Feb. 29, 2008; 85 FR 31669, May 27, 2020]

§ 216.3 Requests for assistance.

(a) Persons who believe that they perform work associated with a program or project which may qualify as an eligible energy program or project and wishing to receive assistance as authorized by DPA section 101(c)(1) may submit an application to DOE requesting DOE to determine whether a program or project maximizes domestic energy supplies and to find whether or not specific supplies of materials and equipment, services, or facilities identified in the application are critical and essential for a purpose identified in section 101(c). The application shall be sent to: U.S. Department of Energy, Attn: Office of Electricity, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585. The application shall contain the following information:

(1) The name and address of the applicant and of its duly authorized representative.

(2) A description of the energy program or project for which assistance is requested and an assessment of its impact on the maximization of domestic energy supplies.

(3) The amount of energy to be produced by the program or project which is directly affected by the supplies of the materials and equipment, services, or facilities in question.

(4) A statement explaining why the materials and equipment, services, or facilities for which assistance is requested are critical and essential to the construction or operation of the energy project or program.

(5) A detailed description of the specific supplies of materials and equipment, services, or facilities in connection with which assistance is requested, including: Components, performance data (capacity, life duration, etc.), standards, acceptable tolerances in dimensions and specifications, current inventory, present and expected rates of use, anticipated deliveries and substitution possibilities (feasibility of using other materials and equipment, services, or facilities).

(6) A detailed description of the sources of supply, including: The name of the regular supplying company or companies, other companies capable of supplying the materials and equipment, services, or facilities; location of supplying plants or plants capable of supplying the needed materials and equipment, services, or facilities; possible suppliers for identical or substitutable materials and equipment, services, or facilities and possible foreign sources of supply.

(7) A detailed description of the delivery situation, including: Normal delivery times, promised delivery time without priorities assistance, and delivery time required for expeditious fulfillment or completion of the program or project.

(8) Evidence of the applicant's unsuccessful efforts to obtain on a timely basis the materials and equipment, services, or facilities in question through normal business channels from current or other known suppliers.

(9) A detailed estimate of the delay in fulfilling or completing the energy program or project which will be caused by inability to obtain the specified materials and equipment, services, or facilities in the usual course of business.

(10) Any known conflicts with rated orders already issued pursuant to the DPA for supplies of the described materials and equipment, services, or facilities.

(b) DOE, on consultation with the DOC, may prescribe standard forms of application or letters of instruction for use by all persons seeking assistance.

(c) In addition to the information described above, DOE may from time to time request whatever additional information it reasonably believes is relevant to the discharge of its functions pursuant to DPA section 101(c).

[43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8311, Mar. 11, 1986; 73 FR 10983, Feb. 29, 2008; 85 FR 31669, May 27, 2020]

§ 216.4 Evaluation by DOE of applications.

(a) Based on the information provided by the applicant and other available information, DOE will:

(1) Determine whether or not the energy program or project in connection with which the application is made maximizes domestic energy supplies and should be designated an eligible energy program or project; and

(2) Find whether the described supplies of materials and equipment, services, or facilities are critical and essential to the eligible energy program or project.

(b) In determining whether the program or project referred to in the application should be designated an eligible energy program or project, DOE will consider all factors which it considers relevant including, but not limited to, the following:

(1) Quantity of energy involved;

(2) Benefits of timely energy program furtherance or project completion;

(3) Socioeconomic impact;

(4) The need for the end product for which the materials and equipment, services, or facilities are allegedly required; and

(5) Established national energy policies.

(c) In finding whether the supplies of materials and equipment, services, or facilities described in the application are critical and essential to an eligible energy program or project, DOE will consider all factors which it considers relevant including, but not limited to, the following:

(1) Availability and utility of substitute materials and equipment, services, or facilities; and

(2) Impact of the nonavailability of the specific supplies of materials and equipment, services, or facilities on the furtherance or timely completion of the approved energy program or project.

(d) Increased costs which may be associated with obtaining materials and equipment, services, or facilities without assistance shall not be considered a valid reason for finding the materials and equipment, services, or facilities to be critical and essential.

(e) After DOE has determined a program or project to be an eligible energy program or project, this determination shall be deemed made with regard to subsequent applications involving the same program or project unless and until DOE announces otherwise.

[43 FR 6212, Feb. 14, 1978, as amended at 73 FR 10984, Feb. 29, 2008]

§ 216.5 Notification of findings.

(a) DOE will notify DOC if it finds that supplies of materials and equipment, services, or facilities for which an applicant requested assistance are critical and essential to an eligible energy program or project, and in such cases will forward to DOC the application and whatever information or comments DOE believes appropriate. If DOE believes at any time that findings previously made may no longer be valid, it will immediately notify the DOC and the affected applicant(s) and afford such applicant(s) an opportunity to show cause why such findings should not be withdrawn.

(b) If DOC notifies DOE that DOC has found that supplies of materials and equipment, services, or facilities for which the applicant requested assistance are scarce and that the related eligible energy program or project cannot reasonably be accomplished without exercising the authority specified in DPA section 101(c)(1), DOE will notify the applicant that the applicant is authorized to place rated orders for specific materials and equipment, services, or facilities pursuant to the provisions of the DOC's DPAS regulation.

[73 FR 10984, Feb. 29, 2008]

§ 216.6 Petition for reconsideration.

If DOE, after evaluating an application in accordance with § 216.4, does not determine that the energy program or project maximizes domestic energy supplies or does not find that the supplies of materials and equipment, services, or facilities described in the application are critical and essential to an eligible energy program or project, it will so notify the applicant and the applicant may petition DOE for reconsideration. If DOE concludes at any time that findings previously made are no longer valid and should be withdrawn, DOE will so notify the affected applicant(s), and such applicant(s) may petition DOE for reconsideration of the withdrawal decision. A petition is deemed accepted when received by DOE at the address stated in § 216.8. DOE will consider the petition for reconsideration and either grant or deny the relief requested. Written notice of the decision and of the reasons for the decision will be provided to the applicant. There has not been an exhaustion of administrative remedies until a petition for reconsideration has been submitted and the review procedure completed by grant or denial of the relief requested. The denial of relief requested in a petition for reconsideration is a final administrative decision.

[43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8312, Mar. 11, 1986; 73 FR 10984, Feb. 29, 2008]

§ 216.7 Conflict in priority orders.

If it appears that the use of assistance pursuant to DPA section 101(c) creates or threatens to create a conflict with priorities and allocation support provided in connection with the national defense pursuant to DPA section 101(a), DOE will work with the DOC and other claimant agencies affected by the conflict to reschedule deliveries or otherwise accommodate the competing demands. If acceptable solutions cannot be agreed upon by the claimant agencies DHS will attempt to resolve the conflicts.

[43 FR 6212, Feb. 14, 1978, as amended at 51 FR 8312, Mar. 11, 1986; 73 FR 10984, Feb. 29, 2008]

§ 216.8 Communications.

All written communications concerning these regulations shall be addressed to: U.S. Department of Energy, Attention: Office of Electricity, Forrestal Building, 1000 Independence Avenue, SW., Washington, DC 20585.

[73 FR 10984, Feb. 29, 2008, as amended at 85 FR 31669, May 27, 2020]

§ 216.9 Violations.

Any person who willfully furnishes false information or conceals any material fact in the course of the application process or in a petition for reconsideration is guilty of a crime, and upon conviction may be punished by fine or imprisonment or both.

§ 217.1 Purpose of this part.

This part provides guidance and procedures for use of the Defense Production Act section 101(a) priorities and allocations authority with respect to all forms of energy necessary or appropriate to promote the national defense. (The guidance and procedures in this part are consistent with the guidance and procedures provided in other regulations that, as a whole, form the Federal Priorities and Allocations System. Guidance and procedures for use of the Defense Production Act priorities and allocations authority with respect to other types of resources are provided for: Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer; health resources; all forms of civil transportation (49 CFR Part 33); water resources; and all other materials, services, and facilities, including construction materials in the Defense Priorities and Allocations System (DPAS) regulation (15 CFR Part 700).) Department of Energy (DOE) regulations at 10 CFR Part 216 describe and establish the procedures to be used by DOE in considering and making certain findings required by section 101(c)(2)(A) of the Defense Production Act of 1950, as amended.

§ 217.2 Priorities and allocations authority.

(a) Section 201 of E.O. 12919 (59 FR 29525) delegates the President's authority under section 101 of the Defense Production Act to require acceptance and priority performance of contracts and orders (other than contracts of employment) to promote the national defense over performance of any other contracts or orders, and to allocate materials, services, and facilities as deemed necessary or appropriate to promote the national defense to:

(1) The Secretary of Agriculture with respect to food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer;

(2) The Secretary of Energy with respect to all forms of energy;

(3) The Secretary of Health and Human Services with respect to health resources;

(4) The Secretary of Transportation with respect to all forms of civil transportation;

(5) The Secretary of Defense with respect to water resources; and

(6) The Secretary of Commerce for all other materials, services, and facilities, including construction materials.

(b) Section 202 of E.O. 12919 states that the priorities and allocations authority delegated in section 201 of this order may be used only to support programs that have been determined in writing as necessary or appropriate to promote the national defense:

(1) By the Secretary of Defense with respect to military production and construction, military assistance to foreign nations, stockpiling, outer space, and directly related activities;

(2) By the Secretary of Energy with respect to energy production and construction, distribution and use, and directly related activities; and

(3) By the Secretary of Homeland Security with respect to essential civilian needs supporting national defense, including civil defense and continuity of government and directly related activities.

§ 217.3 Program eligibility.

Certain programs to promote the national defense are eligible for priorities and allocations support. These include programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, deploying and sustaining military forces, homeland security, stockpiling, space, and any directly related activity. Other eligible programs include emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195 et seq.) and critical infrastructure protection and restoration.

§ 217.20 Definitions.

The following definitions pertain to all sections of this part:

Allocation order means an official action to control the distribution of materials, services, or facilities for a purpose deemed necessary or appropriate to promote the national defense.

Allotment means an official action that specifies the maximum quantity or use of a material, service, or facility authorized for a specific use to promote the national defense.

Approved program means a program determined by the Secretary of Defense, the Secretary of Energy, or the Secretary of Homeland Security to be necessary or appropriate to promote the national defense, in accordance with section 202 of E.O. 12919.

Civil transportation includes movement of persons and property by all modes of transportation in interstate, intrastate, or foreign commerce within the United States, its territories and possessions, and the District of Columbia, and, without limitation, related public storage and warehousing, ports, services, equipment and facilities, such as transportation carrier shop and repair facilities. However, “civil transportation” shall not include transportation owned or controlled by the Department of Defense, use of petroleum and gas pipelines, and coal slurry pipelines used only to supply energy production facilities directly. As applied herein, “civil transportation” shall include direction, control, and coordination of civil transportation capacity regardless of ownership.

Construction means the erection, addition, extension, or alteration of any building, structure, or project, using materials or products which are to be an integral and permanent part of the building, structure, or project. Construction does not include maintenance and repair.

Critical infrastructure means any systems and assets, whether physical or cyber-based, so vital to the United States that the degradation or destruction of such systems and assets would have a debilitating impact on national security, including, but not limited to, national economic security and national public health or safety.

Defense Production Act means the Defense Production Act of 1950, as amended (50 U.S.C. App. 2061 et seq.).

Delegate Agency means a Federal government agency authorized by delegation from the Department of Energy to place priority ratings on contracts or orders needed to support approved programs.

Directive means an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions.

Emergency preparedness means all those activities and measures designed or undertaken to prepare for or minimize the effects of a hazard upon the civilian population, to deal with the immediate emergency conditions which would be created by the hazard, and to effectuate emergency repairs to, or the emergency restoration of, vital utilities and facilities destroyed or damaged by the hazard. Such term includes the following:

(1) Measures to be undertaken in preparation for anticipated hazards (including the establishment of appropriate organizations, operational plans, and supporting agreements, the recruitment and training of personnel, the conduct of research, the procurement and stockpiling of necessary materials and supplies, the provision of suitable warning systems, the construction or preparation of shelters, shelter areas, and control centers, and, when appropriate, the nonmilitary evacuation of the civilian population).

(2) Measures to be undertaken during a hazard (including the enforcement of passive defense regulations prescribed by duly established military or civil authorities, the evacuation of personnel to shelter areas, the control of traffic and panic, and the control and use of lighting and civil communications).

(3) Measures to be undertaken following a hazard (including activities for fire fighting, rescue, emergency medical, health and sanitation services, monitoring for specific dangers of special weapons, unexploded bomb reconnaissance, essential debris clearance, emergency welfare measures, and immediately essential emergency repair or restoration of damaged vital facilities).

Energy means all forms of energy including petroleum, gas (both natural and manufactured), electricity, solid fuels (including all forms of coal, coke, coal chemicals, coal liquification, and coal gasification), and atomic energy, and the production, conservation, use, control, and distribution (including pipelines) of all of these forms of energy.

Facilities includes all types of buildings, structures, or other improvements to real property (but excluding farms, churches or other places of worship, and private dwelling houses), and services relating to the use of any such building, structure, or other improvement.

Farm equipment means equipment, machinery, and repair parts manufactured for use on farms in connection with the production or preparation for market use of food resources.

Fertilizer means any product or combination of products that contain one or more of the elements—nitrogen, phosphorus, and potassium—for use as a plant nutrient.

Food resources means all commodities and products, simple, mixed, or compound, or complements to such commodities or products, that are capable of being ingested by either human beings or animals, irrespective of other uses to which such commodities or products may be put, at all stages of processing from the raw commodity to the products thereof in vendible form for human or animal consumption. “Food resources” also means all starches, sugars, vegetable and animal or marine fats and oils, cotton, tobacco, wool, mohair, hemp, flax fiber, and naval stores, but does not mean any such material after it loses its identity as an agricultural commodity or agricultural product.

Food resource facilities means plants, machinery, vehicles (including on-farm), and other facilities required for the production, processing, distribution, and storage (including cold storage) of food resources, livestock and poultry feed and seed, and for the domestic distribution of farm equipment and fertilizer (excluding transportation thereof).

Hazard means an emergency or disaster resulting from:

(1) A natural disaster; or

(2) An accidental or human-caused event.

Health resources means drugs, biological products, medical devices, diagnostics, materials, facilities, health supplies, services and equipment required to diagnose, prevent the impairment of, improve, or restore the physical or mental health conditions of the population.

Homeland security includes efforts—

(1) To prevent terrorist attacks within the United States;

(2) To reduce the vulnerability of the United States to terrorism;

(3) To minimize damage from a terrorist attack in the United States; and

(4) To recover from a terrorist attack in the United States.

Industrial resources means all materials, services, and facilities, including construction materials, but not including: food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer; all forms of energy; health resources; all forms of civil transportation; and water resources.

Item means any raw, in process, or manufactured material, article, commodity, supply, equipment, component, accessory, part, assembly, or product of any kind, technical information, process, or service.

Maintenance and repair and operating supplies or MRO—

(1) “Maintenance” is the upkeep necessary to continue any plant, facility, or equipment in working condition.

(2) “Repair” is the restoration of any plant, facility, or equipment to working condition when it has been rendered unsafe or unfit for service by wear and tear, damage, or failure of parts.

(3) “Operating supplies” are any resources carried as operating supplies according to a person's established accounting practice. Operating supplies may include hand tools and expendable tools, jigs, dies, fixtures used on production equipment, lubricants, cleaners, chemicals and other expendable items.

(4) MRO does not include items produced or obtained for sale to other persons or for installation upon or attachment to the property of another person, or items required for the production of such items; items needed for the replacement of any plant, facility, or equipment; or items for the improvement of any plant, facility, or equipment by replacing items which are still in working condition with items of a new or different kind, quality, or design.

Materials includes—

(1) Any raw materials (including minerals, metals, and advanced processed materials), commodities, articles, components (including critical components), products, and items of supply; and

(2) Any technical information or services ancillary to the use of any such materials, commodities, articles, components, products, or items.

(3) Natural resources such as oil and gas.

National defense means programs for military and energy production or construction, military or critical infrastructure assistance to any foreign nation, homeland security, stockpiling, space, and any directly related activity. Such term includes emergency preparedness activities conducted pursuant to title VI of the Robert T. Stafford Disaster Relief and Emergency Assistance Act (42 U.S.C. 5195, et seq.) and critical infrastructure protection and restoration.

Official action means an action taken by the Department of Energy or another resource agency under the authority of the Defense Production Act, E.O. 12919, and this part or another regulation under the Federal Priorities and Allocations System. Such actions include the issuance of Rating Authorizations, Directives, Set Asides, Allotments, Letters of Understanding, Memoranda of Understanding, Demands for Information, Inspection Authorizations, and Administrative Subpoenas.

Person includes an individual, corporation, partnership, association, or any other organized group of persons, or legal successor or representative thereof, or any State or local government or agency thereof.

Rated order means a prime contract, a subcontract, or a purchase order in support of an approved program issued in accordance with the provisions of this part.

Resource agency means any agency delegated priorities and allocations authority as specified in § 217.2.

Secretary means the Secretary of Energy.

Services includes any effort that is needed for or incidental to—

(1) The development, production, processing, distribution, delivery, or use of an industrial resource or a critical technology item;

(2) The construction of facilities;

(3) The movement of individuals and property by all modes of civil transportation; or

(4) Other national defense programs and activities.

Set-aside means an official action that requires a person to reserve materials, services, or facilities capacity in anticipation of the receipt of rated orders.

Stafford Act means title VI (Emergency Preparedness) of the Robert T. Stafford Disaster Relief and Emergency Assistance Act, as amended (42 U.S.C. 5195-5197g).

Water resources means all usable water, from all sources, within the jurisdiction of the United States, which can be managed, controlled, and allocated to meet emergency requirements.

§ 217.30 Delegations of authority.

(a) The priorities and allocations authorities of the President under Title I of the Defense Production Act with respect to all forms of energy have been delegated to the Secretary of Energy under E.O. 12919 of June 3, 1994 (59 FR 29525).

(b) The Department of Commerce has delegated authority to the Department of Energy to provide for extension of priority ratings for “industrial resources,” as provided in § 261.35 of this part, to support rated orders for all forms of energy.

§ 217.31 Priority ratings.

(a) Levels of priority.

(1) There are two levels of priority established by the Energy Priorities and Allocations System regulations, identified by the rating symbols “DO” and “DX”.

(2) All DO-rated orders have equal priority with each other and take precedence over unrated orders. All DX-rated orders have equal priority with each other and take precedence over DO-rated orders and unrated orders. (For resolution of conflicts among rated orders of equal priority, see § 217.34(c).)

(3) In addition, a Directive regarding priority treatment for a given item issued by the Department of Energy for that item takes precedence over any DX-rated order, DO-rated order, or unrated order, as stipulated in the Directive. (For a full discussion of Directives, see § 217.62.)

(b) Program identification symbols. Program identification symbols indicate which approved program is being supported by a rated order. The list of currently approved programs and their identification symbols are listed in Schedule 1, set forth as an appendix to 15 CFR part 700. For example, DO-F3 identifies a domestic energy construction program. Additional programs may be approved under the procedures of E.O. 12919 at any time. Program identification symbols do not connote any priority.

(c) Priority ratings. A priority rating consists of the rating symbol—DO or DX—and the program identification symbol, such as F1, F2, or F3. Thus, a contract for a domestic energy construction program will contain a DO-F3 or DX-F3 priority rating.

§ 217.32 Elements of a rated order.

Each rated order must include:

(a) The appropriate priority rating (e.g. DO-F1 or DX-F1)

(b) A required delivery date or dates. The words “immediately” or “as soon as possible” do not constitute a delivery date. A “requirements contract”, “basic ordering agreement”, “prime vendor contract”, or similar procurement document bearing a priority rating may contain no specific delivery date or dates and may provide for the furnishing of items or service from time to time or within a stated period against specific purchase orders, such as “calls”, “requisitions”, and “delivery orders”. These purchase orders must specify a required delivery date or dates and are to be considered as rated as of the date of their receipt by the supplier and not as of the date of the original procurement document;

(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of an individual authorized to sign rated orders for the person placing the order. The signature or use of the name certifies that the rated order is authorized under this part and that the requirements of this part are being followed; and

(d)(1) A statement that reads in substance:

This is a rated order certified for national defense use, and you are required to follow all the provisions of the Energy Priorities and Allocations System regulation at 10 CFR part 217.

(2) If the rated order is placed in support of emergency preparedness requirements and expedited action is necessary and appropriate to meet these requirements, the following sentences should be added following the statement set forth in paragraph (d)(1) of this section:

This rated order is placed for the purpose of emergency preparedness. It must be accepted or rejected within 2 days after receipt of the order if (1) The order is issued in response to a hazard that has occurred; or

(2) If the order is issued to prepare for an imminent hazard, as specified in EPAS Section 217.33(e), 10 CFR 217.33(e).

§ 217.33 Acceptance and rejection of rated orders.

(a) Mandatory acceptance. (1) Except as otherwise specified in this section, a person shall accept every rated order received and must fill such orders regardless of any other rated or unrated orders that have been accepted.

(2) A person shall not discriminate against rated orders in any manner such as by charging higher prices or by imposing different terms and conditions than for comparable unrated orders.

(b) Mandatory rejection. Unless otherwise directed by the Department of Energy for a rated order involving all forms of energy:

(1) A person shall not accept a rated order for delivery on a specific date if unable to fill the order by that date. However, the person must inform the customer of the earliest date on which delivery can be made and offer to accept the order on the basis of that date. Scheduling conflicts with previously accepted lower rated or unrated orders are not sufficient reason for rejection under this section.

(2) A person shall not accept a DO-rated order for delivery on a date which would interfere with delivery of any previously accepted DO- or DX-rated orders. However, the person must offer to accept the order based on the earliest delivery date otherwise possible.

(3) A person shall not accept a DX-rated order for delivery on a date which would interfere with delivery of any previously accepted DX-rated orders, but must offer to accept the order based on the earliest delivery date otherwise possible.

(4) If a person is unable to fill all of the rated orders of equal priority status received on the same day, the person must accept, based upon the earliest delivery dates, only those orders which can be filled, and reject the other orders. For example, a person must accept order A requiring delivery on December 15 before accepting order B requiring delivery on December 31. However, the person must offer to accept the rejected orders based on the earliest delivery dates otherwise possible.

(c) Optional rejection. Unless otherwise directed by the Department of Energy for a rated order involving all forms of energy, rated orders may be rejected in any of the following cases as long as a supplier does not discriminate among customers:

(1) If the person placing the order is unwilling or unable to meet regularly established terms of sale or payment;

(2) If the order is for an item not supplied or for a service not capable of being performed;

(3) If the order is for an item or service produced, acquired, or provided only for the supplier's own use for which no orders have been filled for two years prior to the date of receipt of the rated order. If, however, a supplier has sold some of these items or provided similar services, the supplier is obligated to accept rated orders up to that quantity or portion of production or service, whichever is greater, sold or provided within the past two years;

(4) If the person placing the rated order, other than the U.S. Government, makes the item or performs the service being ordered;

(5) If acceptance of a rated order or performance against a rated order would violate any other regulation, official action, or order of the Department of Energy, issued under the authority of the Defense Production Act or another relevant statute.

(d) Customer notification requirements. (1) Except as provided in this paragraph, a person must accept or reject a rated order in writing or electronically within fifteen (15) working days after receipt of a DO rated order and within ten (10) working days after receipt of a DX rated order. If the order is rejected, the person must give reasons in writing or electronically for the rejection.

(2) If a person has accepted a rated order and subsequently finds that shipment or performance will be delayed, the person must notify the customer immediately, give the reasons for the delay, and advise of a new shipment or performance date. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days.

(e) Exception for emergency preparedness conditions. If the rated order is placed for the purpose of emergency preparedness, a person must accept or reject a rated order and transmit the acceptance or rejection in writing or in an electronic format within 2 days after receipt of the order if:

(1) The order is issued in response to a hazard that has occurred; or

(2) The order is issued to prepare for an imminent hazard.

§ 217.34 Preferential scheduling.

(a) A person must schedule operations, including the acquisition of all needed production items or services, in a timely manner to satisfy the delivery requirements of each rated order. Modifying production or delivery schedules is necessary only when required delivery dates for rated orders cannot otherwise be met.

(b) DO-rated orders must be given production preference over unrated orders, if necessary to meet required delivery dates, even if this requires the diversion of items being processed or ready for delivery or services being performed against unrated orders. Similarly, DX-rated orders must be given preference over DO-rated orders and unrated orders. (Examples: If a person receives a DO-rated order with a delivery date of June 3 and if meeting that date would mean delaying production or delivery of an item for an unrated order, the unrated order must be delayed. If a DX-rated order is received calling for delivery on July 15 and a person has a DO-rated order requiring delivery on June 2 and operations can be scheduled to meet both deliveries, there is no need to alter production schedules to give any additional preference to the DX-rated order.)

(c) Conflicting rated orders.

(1) If a person finds that delivery or performance against any accepted rated orders conflicts with the delivery or performance against other accepted rated orders of equal priority status, the person shall give precedence to the conflicting orders in the sequence in which they are to be delivered or performed (not to the receipt dates). If the conflicting orders are scheduled to be delivered or performed on the same day, the person shall give precedence to those orders that have the earliest receipt dates.

(2) If a person is unable to resolve rated order delivery or performance conflicts under this section, the person should promptly seek special priorities assistance as provided in §§ 217.40 through 217.44. If the person's customer objects to the rescheduling of delivery or performance of a rated order, the customer should promptly seek special priorities assistance as provided in §§ 217.40 through 217.44. For any rated order against which delivery or performance will be delayed, the person must notify the customer as provided in § 217.33.

(d) If a person is unable to purchase needed production items in time to fill a rated order by its required delivery date, the person must fill the rated order by using inventoried production items. A person who uses inventoried items to fill a rated order may replace those items with the use of a rated order as provided in § 217.37(b).

§ 217.35 Extension of priority ratings.

(a) A person must use rated orders with suppliers to obtain items or services needed to fill a rated order. The person must use the priority rating indicated on the customer's rated order, except as otherwise provided in this part or as directed by the Department of Energy. For example, if a person is in receipt of a DO-F1 rated order for an electric power sub-station, and needs to purchase a transformer for its manufacture, that person must use a DO-F1 rated order to obtain the needed transformer.

(b) The priority rating must be included on each successive order placed to obtain items or services needed to fill a customer's rated order. This continues from contractor to subcontractor to supplier throughout the entire procurement chain.

§ 217.36 Changes or cancellations of priority ratings and rated orders.

(a) The priority rating on a rated order may be changed or canceled by:

(1) An official action of the Department of Energy; or

(2) Written notification from the person who placed the rated order.

(b) If an unrated order is amended so as to make it a rated order, or a DO rating is changed to a DX rating, the supplier must give the appropriate preferential treatment to the order as of the date the change is received by the supplier.

(c) An amendment to a rated order that significantly alters a supplier's original production or delivery schedule shall constitute a new rated order as of the date of its receipt. The supplier must accept or reject the amended order according to the provisions of § 217.33.

(d) The following amendments do not constitute a new rated order: a change in shipping destination; a reduction in the total amount of the order; an increase in the total amount of the order which has negligible impact upon deliveries; a minor variation in size or design; or a change which is agreed upon between the supplier and the customer.

(e) If a person no longer needs items or services to fill a rated order, any rated orders placed with suppliers for the items or services, or the priority rating on those orders, must be canceled.

(f) When a priority rating is added to an unrated order, or is changed or canceled, all suppliers must be promptly notified in writing.

§ 217.37 Use of rated orders.

(a) A person must use rated orders to obtain:

(1) Items which will be physically incorporated into other items to fill rated orders, including that portion of such items normally consumed or converted into scrap or by-products in the course of processing;

(2) Containers or other packaging materials required to make delivery of the finished items against rated orders;

(3) Services, other than contracts of employment, needed to fill rated orders; and

(4) MRO needed to produce the finished items to fill rated orders.

(b) A person may use a rated order to replace inventoried items (including finished items) if such items were used to fill rated orders, as follows:

(1) The order must be placed within 90 days of the date of use of the inventory.

(2) A DO rating and the program identification symbol indicated on the customer's rated order must be used on the order. A DX rating may not be used even if the inventory was used to fill a DX-rated order.

(3) If the priority ratings on rated orders from one customer or several customers contain different program identification symbols, the rated orders may be combined. In this case, the program identification symbol “H1” must be used (i.e., DO-H1).

(c) A person may combine DX- and DO-rated orders from one customer or several customers if the items or services covered by each level of priority are identified separately and clearly. If different program identification symbols are indicated on those rated orders of equal priority, the person must use the program identification symbol “H1” (i.e., DO-H1 or DX-H1).

(d) Combining rated and unrated orders.

(1) A person may combine rated and unrated order quantities on one purchase order provided that:

(i) The rated quantities are separately and clearly identified; and

(ii) The four elements of a rated order, as required by § 217.32, are included on the order with the statement required in § 217.32(d) modified to read in substance:

This purchase order contains rated order quantities certified for national defense use, and you are required to follow all applicable provisions of the Energy Priorities and Allocations System regulations at 10 CFR part 217 only as it pertains to the rated quantities.

(2) A supplier must accept or reject the rated portion of the purchase order as provided in § 217.33 and give preferential treatment only to the rated quantities as required by this part. This part may not be used to require preferential treatment for the unrated portion of the order.

(3) Any supplier who believes that rated and unrated orders are being combined in a manner contrary to the intent of this part or in a fashion that causes undue or exceptional hardship may submit a request for adjustment or exception under § 217.80.

(e) A person may place a rated order for the minimum commercially procurable quantity even if the quantity needed to fill a rated order is less than that minimum. However, a person must combine rated orders as provided in paragraph (c) of this section, if possible, to obtain minimum procurable quantities.

(f) A person is not required to place a priority rating on an order for less than $50,000, or one-half of the Simplified Acquisition Threshold (as established in the Federal Acquisition Regulation (FAR) (see FAR section 2.101) or in other authorized acquisition regulatory or management systems) whichever amount is greater, provided that delivery can be obtained in a timely fashion without the use of the priority rating.

§ 217.38 Limitations on placing rated orders.

(a) General limitations.

(1) A person may not place a DO- or DX-rated order unless entitled to do so under this part.

(2) Rated orders may not be used to obtain:

(i) Delivery on a date earlier than needed;

(ii) A greater quantity of the item or services than needed, except to obtain a minimum procurable quantity. Separate rated orders may not be placed solely for the purpose of obtaining minimum procurable quantities on each order;

(iii) Items or services in advance of the receipt of a rated order, except as specifically authorized by the Department of Energy (see § 217.41(c) for information on obtaining authorization for a priority rating in advance of a rated order);

(iv) Items that are not needed to fill a rated order, except as specifically authorized by the Department of Energy, or as otherwise permitted by this part; or

(v) Any of the following items unless specific priority rating authority has been obtained from the Department of Energy, a Delegate Agency, or the Department of Commerce, as appropriate:

(A) Items for plant improvement, expansion, or construction, unless they will be physically incorporated into a construction project covered by a rated order; and

(B) Production or construction equipment or items to be used for the manufacture of production equipment. [For information on requesting priority rating authority, see § 217.21.]

(vi) Any items related to the development of chemical or biological warfare capabilities or the production of chemical or biological weapons, unless such development or production has been authorized by the President or the Secretary of Defense.

(b) Jurisdictional limitations.

(1) Unless authorized by the resource agency with jurisdiction, the provisions of this part are not applicable to the following resources:

(i) Food resources, food resource facilities, and the domestic distribution of farm equipment and commercial fertilizer (Resource agency with jurisdiction—Department of Agriculture);

(ii) Health resources (Resource agency with jurisdiction—Department of Health and Human Services);

(iii) All forms of civil transportation (Resource agency with jurisdiction—Department of Transportation);

(iv) Water resources (Resource agency with jurisdiction—Department of Defense/U.S. Army Corps of Engineers); and

(v) Communications services (Resource agency with jurisdiction—National Communications System under E. O. 12472 of April 3, 1984).

§ 217.40 General provisions.

(a) The EPAS is designed to be largely self-executing. However, from time-to-time production or delivery problems will arise. In this event, a person should immediately contact the Office of Electricity, for guidance or assistance (Contact the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93). If the problem(s) cannot otherwise be resolved, special priorities assistance should be sought from the Department of Energy through the Office of Electricity (Contact the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93). If the Department of Energy is unable to resolve the problem or to authorize the use of a priority rating and believes additional assistance is warranted, the Department of Energy may forward the request to another agency with resource jurisdiction, as appropriate, for action. Special priorities assistance is provided to alleviate problems that do arise.

(b) Special priorities assistance is available for any reason consistent with this part. Generally, special priorities assistance is provided to expedite deliveries, resolve delivery conflicts, place rated orders, locate suppliers, or to verify information supplied by customers and vendors. Special priorities assistance may also be used to request rating authority for items that are not normally eligible for priority treatment.

(c) A request for special priorities assistance or priority rating authority must be submitted on Form DOE F 544 (05-11) (OMB control number 1910-5159) to the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93. Form DOE F 544 (05-11) may be obtained from the Department of Energy or a Delegate Agency. A sample Form DOE F 544 (05-11) is attached at appendix I to this part.

[76 FR 33619, June 9, 2011, as amended at 85 FR 31670, May 27, 2020]

§ 217.41 Requests for priority rating authority.

(a) If a rated order is likely to be delayed because a person is unable to obtain items or services not normally rated under this part, the person may request the authority to use a priority rating in ordering the needed items or services.

(b) Rating authority for production or construction equipment.

(1) A request for priority rating authority for production or construction equipment must be submitted to the U.S. Department of Commerce on Form BIS-999.

(2) When the use of a priority rating is authorized for the procurement of production or construction equipment, a rated order may be used either to purchase or to lease such equipment. However, in the latter case, the equipment may be leased only from a person engaged in the business of leasing such equipment or from a person willing to lease rather than sell.

(c) Rating authority in advance of a rated prime contract. (1) In certain cases and upon specific request, the Department of Energy, in order to promote the national defense, may authorize or request the Department of Commerce to authorize, as appropriate, a person to place a priority rating on an order to a supplier in advance of the issuance of a rated prime contract. In these instances, the person requesting advance rating authority must obtain sponsorship of the request from the Department of Energy or the appropriate Delegate Agency. The person shall also assume any business risk associated with the placing of rated orders in the event the rated prime contract is not issued.

(2) The person must state the following in the request:

It is understood that the authorization of a priority rating in advance of our receiving a rated prime contract from the Department of Energy and our use of that priority rating with our suppliers in no way commits the Department of Energy, the Department of Commerce, or any other government agency to enter into a contract or order or to expend funds. Further, we understand that the Federal Government shall not be liable for any cancellation charges, termination costs, or other damages that may accrue if a rated prime contract is not eventually placed and, as a result, we must subsequently cancel orders placed with the use of the priority rating authorized as a result of this request.

(3) In reviewing requests for rating authority in advance of a rated prime contract, the Department of Energy or the Department of Commerce, as appropriate, will consider, among other things, the following criteria:

(i) The probability that the prime contract will be awarded;

(ii) The impact of the resulting rated orders on suppliers and on other authorized programs;

(iii) Whether the contractor is the sole source;

(iv) Whether the item being produced has a long lead time;

(v) The time period for which the rating is being requested.

(4) The Department of Energy or the Department of Commerce, as appropriate, may require periodic reports on the use of the rating authority granted under paragraph (c) of this section.

(5) If a rated prime contract is not issued, the person shall promptly notify all suppliers who have received rated orders pursuant to the advanced rating authority that the priority rating on those orders is cancelled.

§ 217.42 Examples of assistance.

(a) While special priorities assistance may be provided for any reason in support of this part, it is usually provided in situations where:

(1) A person is experiencing difficulty in obtaining delivery against a rated order by the required delivery date; or

(2) A person cannot locate a supplier for an item or service needed to fill a rated order.

(b) Other examples of special priorities assistance include:

(1) Ensuring that rated orders receive preferential treatment by suppliers;

(2) Resolving production or delivery conflicts between various rated orders;

(3) Assisting in placing rated orders with suppliers;

(4) Verifying the urgency of rated orders; and

(5) Determining the validity of rated orders.

§ 217.43 Criteria for assistance.

Requests for special priorities assistance should be timely, i.e., the request has been submitted promptly and enough time exists for the Department of Energy, the Delegate Agency, or the Department of Commerce for industrial resources to effect a meaningful resolution to the problem, and must establish that:

(a) There is an urgent need for the item; and

(b) The applicant has made a reasonable effort to resolve the problem.

§ 217.44 Instances where assistance may not be provided.

Special priorities assistance is provided at the discretion of the Department of Energy, the Delegate Agencies, or the Department of Commerce when it is determined that such assistance is warranted to meet the objectives of this part. Examples where assistance may not be provided include situations when a person is attempting to:

(a) Secure a price advantage;

(b) Obtain delivery prior to the time required to fill a rated order;

(c) Gain competitive advantage;

(d) Disrupt an industry apportionment program in a manner designed to provide a person with an unwarranted share of scarce items; or

(e) Overcome a supplier's regularly established terms of sale or conditions of doing business.

§ 217.50 Policy.

(a) It is the policy of the Federal Government that the allocations authority under title I of the Defense Production Act may:

(1) Only be used when there is insufficient supply of a material, service, or facility to satisfy national defense supply requirements through the use of the priorities authority or when the use of the priorities authority would cause a severe and prolonged disruption in the supply of materials, services, or facilities available to support normal U.S. economic activities; and

(2) Not be used to ration materials or services at the retail level.

(b) Allocation orders, when used, will be distributed equitably among the suppliers of the materials, services, or facilities being allocated and not require any person to relinquish a disproportionate share of the civilian market.

§ 217.51 General procedures.

When the Department of Energy plans to execute its allocations authority to address a supply problem within its resource jurisdiction, the Department shall develop a plan that includes the following information:

(a) A copy of the written determination made, in accordance with section 202 of E.O. 12919, that the program or programs that would be supported by the allocation action are necessary or appropriate to promote the national defense;

(b) A detailed description of the situation to include any unusual events or circumstances that have created the requirement for an allocation action;

(c) A statement of the specific objective(s) of the allocation action;

(d) A list of the materials, services, or facilities to be allocated;

(e) A list of the sources of the materials, services, or facilities that will be subject to the allocation action;

(f) A detailed description of the provisions that will be included in the allocation orders, including the type(s) of allocation orders, the percentages or quantity of capacity or output to be allocated for each purpose, and the duration of the allocation action (i.e., anticipated start and end dates);

(g) An evaluation of the impact of the proposed allocation action on the civilian market; and

(h) Proposed actions, if any, to mitigate disruptions to civilian market operations.

§ 217.52 Controlling the general distribution of a material in the civilian market.

No allocation action by the Department of Energy may be used to control the general distribution of a material in the civilian market, unless the Secretary of the Department of Energy has:

(a) Made a written finding that:

(1) Such material is a scarce and critical material essential to the national defense, and

(2) The requirements of the national defense for such material cannot otherwise be met without creating a significant dislocation of the normal distribution of such material in the civilian market to such a degree as to create appreciable hardship;

(b) Submitted the finding for the President's approval through the Assistant to the President for National Security Affairs; and

(c) The President has approved the finding.

§ 217.53 Types of allocation orders.

There are three types of allocation orders available for communicating allocation actions. These are:

(a) Set-aside: an official action that requires a person to reserve materials, services, or facilities capacity in anticipation of the receipt of rated orders;

(b) Directive: an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions. For example, a directive can require a person to: stop or reduce production of an item; prohibit the use of selected materials, services, or facilities; or divert the use of materials, services, or facilities from one purpose to another; and

(c) Allotment: an official action that specifies the maximum quantity of a material, service, or facility authorized for a specific use.

§ 217.54 Elements of an allocation order.

Each allocation order must include:

(a) A detailed description of the required allocation action(s);

(b) Specific start and end calendar dates for each required allocation action;

(c) The written signature on a manually placed order, or the digital signature or name on an electronically placed order, of the Secretary of Energy. The signature or use of the name certifies that the order is authorized under this part and that the requirements of this part are being followed;

(d) A statement that reads in substance: “This is an allocation order certified for national defense use. [Insert the legal name of the person receiving the order] is required to comply with this order, in accordance with the provisions of the Energy Priorities and Allocations System regulation (10 CFR part 217), which is part of the Federal Priorities and Allocations System”; and

(e) A current copy of the Energy Priorities and Allocations System regulation (10 CFR part 217).

§ 217.55 Mandatory acceptance of an allocation order.

(a) Except as otherwise specified in this section, a person shall accept and comply with every allocation order received.

(b) A person shall not discriminate against an allocation order in any manner such as by charging higher prices for materials, services, or facilities covered by the order or by imposing terms and conditions for contracts and orders involving allocated materials, services, or facilities that differ from the person's terms and conditions for contracts and orders for the materials, services, or facilities prior to receiving the allocation order.

(c) If a person is unable to comply fully with the required action(s) specified in an allocation order, the person must notify the Department of Energy immediately, explain the extent to which compliance is possible, and give the reasons why full compliance is not possible. If notification is given verbally, written or electronic confirmation must be provided within five (5) working days. Such notification does not release the person from complying with the order to the fullest extent possible, until the person is notified by the Department of Energy that the order has been changed or cancelled.

§ 217.56 Changes or cancellations of an allocation order.

An allocation order may be changed or canceled by an official action of the Department of Energy.

§ 217.60 General provisions.

(a) The Department of Energy may take specific official actions to implement the provisions of this part.

(b) These official actions include Rating Authorizations, Directives, and Memoranda of Understanding.

§ 217.61 Rating Authorizations.

(a) A Rating Authorization is an official action granting specific priority rating authority that:

(1) Permits a person to place a priority rating on an order for an item or service not normally ratable under this part; or

(2) Authorizes a person to modify a priority rating on a specific order or series of contracts or orders.

(b) To request priority rating authority, see § 217.41.

§ 217.62 Directives.

(a) A Directive is an official action that requires a person to take or refrain from taking certain actions in accordance with its provisions.

(b) A person must comply with each Directive issued. However, a person may not use or extend a Directive to obtain any items from a supplier, unless expressly authorized to do so in the Directive.

(c) A Priorities Directive takes precedence over all DX-rated orders, DO-rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the Directive.

(d) An Allocations Directive takes precedence over all Priorities Directives, DX-rated orders, DO-rated orders, and unrated orders previously or subsequently received, unless a contrary instruction appears in the Directive.

§ 217.63 Letters and Memoranda of Understanding.

(a) A Letter or Memorandum of Understanding is an official action that may be issued in resolving special priorities assistance cases to reflect an agreement reached by all parties (the Department of Energy, the Department of Commerce (if applicable), a Delegate Agency (if applicable), the supplier, and the customer).

(b) A Letter or Memorandum of Understanding is not used to alter scheduling between rated orders, to authorize the use of priority ratings, to impose restrictions under this part. Rather, Letters or Memoranda of Understanding are used to confirm production or shipping schedules that do not require modifications to other rated orders.

§ 217.70 General provisions.

(a) The Department of Energy may take specific official actions for any reason necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or an official action. Such actions include Administrative Subpoenas, Demands for Information, and Inspection Authorizations.

(b) Any person who places or receives a rated order or an allocation order must comply with the provisions of this part.

(c) Willful violation of the provisions of title I or section 705 of the Defense Production Act and other applicable statutes, this part, or an official action of the Department of Energy is a criminal act, punishable as provided in the Defense Production Act and other applicable statutes, and as set forth in § 217.74 of this part.

§ 217.71 Audits and investigations.

(a) Audits and investigations are official examinations of books, records, documents, other writings and information to ensure that the provisions of the Defense Production Act and other applicable statutes, this part, and official actions have been properly followed. An audit or investigation may also include interviews and a systems evaluation to detect problems or failures in the implementation of this part.

(b) When undertaking an audit or investigation, the Department of Energy shall:

(1) Define the scope and purpose in the official action given to the person under investigation, and

(2) Have ascertained that the information sought or other adequate and authoritative data are not available from any Federal or other responsible agency.

(c) In administering this part, the Department of Energy may issue the following documents that constitute official actions:

(1) Administrative Subpoenas. An Administrative Subpoena requires a person to appear as a witness before an official designated by the Department of Energy to testify under oath on matters of which that person has knowledge relating to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or official actions. An Administrative Subpoena may also require the production of books, papers, records, documents and physical objects or property.

(2) Demands for Information. A Demand for Information requires a person to furnish to a duly authorized representative of the Department of Energy any information necessary or appropriate to the enforcement or the administration of the Defense Production Act and other applicable statutes, this part, or official actions.

(3) Inspection Authorizations. An Inspection Authorization requires a person to permit a duly authorized representative of the Department of Energy to interview the person's employees or agents, to inspect books, records, documents, other writings, and information, including electronically-stored information, in the person's possession or control at the place where that person usually keeps them or otherwise, and to inspect a person's property when such interviews and inspections are necessary or appropriate to the enforcement or the administration of the Defense Production Act and related statutes, this part, or official actions.

(d) The production of books, records, documents, other writings, and information will not be required at any place other than where they are usually kept if, prior to the return date specified in the Administrative Subpoena or Demand for Information, a duly authorized official of the Department of Energy is furnished with copies of such material that are certified under oath to be true copies. As an alternative, a person may enter into a stipulation with a duly authorized official of Department of Energy as to the content of the material.

(e) An Administrative Subpoena, Demand for Information, or Inspection Authorization, shall include the name, title, or official position of the person to be served, the evidence sought to be adduced, and its general relevance to the scope and purpose of the audit, investigation, or other inquiry. If employees or agents are to be interviewed; if books, records, documents, other writings, or information are to be produced; or if property is to be inspected; the Administrative Subpoena, Demand for Information, or Inspection Authorization will describe them with particularity.

(f) Service of documents shall be made in the following manner:

(1) Service of a Demand for Information or Inspection Authorization shall be made personally, or by Certified Mail-Return Receipt Requested at the person's last known address. Service of an Administrative Subpoena shall be made personally. Personal service may also be made by leaving a copy of the document with someone at least 18 years old at the person's last known dwelling or place of business.

(2) Service upon other than an individual may be made by serving a partner, corporate officer, or a managing or general agent authorized by appointment or by law to accept service of process. If an agent is served, a copy of the document shall be mailed to the person named in the document.

(3) Any individual 18 years of age or over may serve an Administrative Subpoena, Demand for Information, or Inspection Authorization. When personal service is made, the individual making the service shall prepare an affidavit as to the manner in which service was made and the identity of the person served, and return the affidavit, and in the case of subpoenas, the original document, to the issuing officer. In case of failure to make service, the reasons for the failure shall be stated on the original document.

§ 217.72 Compulsory process.

(a) If a person refuses to permit a duly authorized representative of the Department of Energy to have access to any premises or source of information necessary to the administration or the enforcement of the Defense Production Act and other applicable statutes, this part, or official actions, the Department of Energy representative may seek compulsory process. Compulsory process means the institution of appropriate legal action, including ex parte application for an inspection warrant or its equivalent, in any forum of appropriate jurisdiction.

(b) Compulsory process may be sought in advance of an audit, investigation, or other inquiry, if, in the judgment of the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93, there is reason to believe that a person will refuse to permit an audit, investigation, or other inquiry, or that other circumstances exist which make such process desirable or necessary.

[76 FR 33619, June 9, 2011, as amended at 85 FR 31670, May 27, 2020]

§ 217.73 Notification of failure to comply.

(a) At the conclusion of an audit, investigation, or other inquiry, or at any other time, the Department of Energy may inform the person in writing where compliance with the requirements of the Defense Production Act and other applicable statutes, this part, or an official action were not met.

(b) In cases where the Department of Energy determines that failure to comply with the provisions of the Defense Production Act and other applicable statutes, this part, or an official action was inadvertent, the person may be informed in writing of the particulars involved and the corrective action to be taken. Failure to take corrective action may then be construed as a willful violation of the Defense Production Act and other applicable statutes, this part, or an official action.

§ 217.74 Violations, penalties, and remedies.

(a) Willful violation of the provisions of title I or sections 705 or 707 of the Defense Production Act, the priorities provisions of the Selective Service Act and related statutes (when applicable), this part, or an official action, is a crime and upon conviction, a person may be punished by fine or imprisonment, or both. The maximum penalties provided by the Defense Production Act are a $10,000 fine, or one year in prison, or both. The maximum penalties provided by the Selective Service Act and related statutes are a $50,000 fine, or three years in prison, or both.

(b) The Government may also seek an injunction from a court of appropriate jurisdiction to prohibit the continuance of any violation of, or to enforce compliance with, the Defense Production Act, this part, or an official action.

(c) In order to secure the effective enforcement of the Defense Production Act and other applicable statutes, this part, and official actions, the following are prohibited:

(1) No person may solicit, influence or permit another person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action.

(2) No person may conspire or act in concert with any other person to perform any act prohibited by, or to omit any act required by, the Defense Production Act and other applicable statutes, this part, or an official action.

(3) No person shall deliver any item if the person knows or has reason to believe that the item will be accepted, redelivered, held, or used in violation of the Defense Production Act and other applicable statutes, this part, or an official action. In such instances, the person must immediately notify the Department of Energy that, in accordance with this provision, delivery has not been made.

§ 217.75 Compliance conflicts.

If compliance with any provision of the Defense Production Act and other applicable statutes, this part, or an official action would prevent a person from filling a rated order or from complying with another provision of the Defense Production Act and other applicable statutes, this part, or an official action, the person must immediately notify the Department of Energy for resolution of the conflict.

§ 217.80 Adjustments or exceptions.

(a) A person may submit a request to the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93, for an adjustment or exception on the ground that:

(1) A provision of this part or an official action results in an undue or exceptional hardship on that person not suffered generally by others in similar situations and circumstances; or

(2) The consequences of following a provision of this part or an official action is contrary to the intent of the Defense Production Act and other applicable statutes, or this part.

(b) Each request for adjustment or exception must be in writing and contain a complete statement of all the facts and circumstances related to the provision of this part or official action from which adjustment is sought and a full and precise statement of the reasons why relief should be provided.

(c) The submission of a request for adjustment or exception shall not relieve any person from the obligation of complying with the provision of this part or official action in question while the request is being considered unless such interim relief is granted in writing by the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93.

(d) A decision of the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93, under this section may be appealed to the Assistant Secretary, Office of Electricity (For information on the appeal procedure, see § 217.81.)

[76 FR 33619, June 9, 2011, as amended at 85 FR 31670, May 27, 2020]

§ 217.81 Appeals.

(a) Any person who has had a request for adjustment or exception denied by the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in section 217.93, under § 217.80, may appeal to the Assistant Secretary, Office of Electricity who shall review and reconsider the denial.

(b)(1) Except as provided in this paragraph (b)(2), an appeal must be received by the Assistant Secretary, Office of Electricity no later than 45 days after receipt of a written notice of denial from the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93. After this 45-day period, an appeal may be accepted at the discretion of the Assistant Secretary, Office of Electricity for good cause shown.

(2) For requests for adjustment or exception involving rated orders placed for the purpose of emergency preparedness (see 217.14(d)), an appeal must be received by the Assistant Secretary, Office of Electricity, no later than 15 days after receipt of a written notice of denial from the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, as listed in § 217.93. Contract performance under the order shall not be stayed pending resolution of the appeal.

(c) Each appeal must be in writing and contain a complete statement of all the facts and circumstances related to the action appealed from and a full and precise statement of the reasons the decision should be modified or reversed.

(d) In addition to the written materials submitted in support of an appeal, an appellant may request, in writing, an opportunity for an informal hearing. This request may be granted or denied at the discretion of the Assistant Secretary, Office of Electricity.

(e) When a hearing is granted, the Assistant Secretary, Office of Electricity may designate an employee to conduct the hearing and to prepare a report. The hearing officer shall determine all procedural questions and impose such time or other limitations deemed reasonable. In the event that the hearing officer decides that a printed transcript is necessary, all expenses shall be borne by the appellant.

(f) When determining an appeal, the Assistant Secretary, Office of Electricity may consider all information submitted during the appeal as well as any recommendations, reports, or other relevant information and documents available to the Department of Energy or consult with any other persons or groups.

(g) The submission of an appeal under this section shall not relieve any person from the obligation of complying with the provision of this part or official action in question while the appeal is being considered unless such relief is granted in writing by the Assistant Secretary, Office of Electricity.

(h) The decision of the Assistant Secretary, Office of Electricity shall be made within five (5) days after receipt of the appeal, or within one (1) day for appeals pertaining to emergency preparedness and shall be the final administrative action. It shall be issued to the appellant in writing with a statement of the reasons for the decision.

[76 FR 33619, June 9, 2011, as amended at 85 FR 31670, May 27, 2020]

§ 217.90 Protection against claims.

A person shall not be held liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any provision of this part, or an official action, notwithstanding that such provision or action shall subsequently be declared invalid by judicial or other competent authority.

§ 217.91 Records and reports.

(a) Persons are required to make and preserve for at least three years, accurate and complete records of any transaction covered by this part or an official action.

(b) Records must be maintained in sufficient detail to permit the determination, upon examination, of whether each transaction complies with the provisions of this part or any official action. However, this part does not specify any particular method or system to be used.

(c) Records required to be maintained by this part must be made available for examination on demand by duly authorized representatives of the Department of Energy as provided in § 217.71.

(d) In addition, persons must develop, maintain, and submit any other records and reports to the Department of Energy that may be required for the administration of the Defense Production Act and other applicable statutes, and this part.

(e) Section 705(d) of the Defense Production Act, as implemented by E.O. 12919, provides that information obtained under this section which the Secretary deems confidential, or with reference to which a request for confidential treatment is made by the person furnishing such information, shall not be published or disclosed unless the Secretary determines that the withholding of this information is contrary to the interest of the national defense. Information required to be submitted to the Department of Energy in connection with the enforcement or administration of the Defense Production Act, this part, or an official action, is deemed to be confidential under section 705(d) of the Defense Production Act and shall be handled in accordance with applicable Federal law.

§ 217.92 Applicability of this part and official actions.

(a) This part and all official actions, unless specifically stated otherwise, apply to transactions in any state, territory, or possession of the United States and the District of Columbia.

(b) This part and all official actions apply not only to deliveries to other persons but also include deliveries to affiliates and subsidiaries of a person and deliveries from one branch, division, or section of a single entity to another branch, division, or section under common ownership or control.

(c) This part and its schedules shall not be construed to affect any administrative actions taken by the Department of Energy, or any outstanding contracts or orders placed pursuant to any of the regulations, orders, schedules or delegations of authority previously issued by the Department of Energy pursuant to authority granted to the President in the Defense Production Act. Such actions, contracts, or orders shall continue in full force and effect under this part unless modified or terminated by proper authority.

§ 217.93 Communications.

All communications concerning this part, including requests for copies of the regulation and explanatory information, requests for guidance or clarification, and requests for adjustment or exception shall be addressed to the Deputy Assistant Secretary of the Department of Energy overseeing the Defense Production Act program, U.S. Department of Energy, 1000 Independence Ave. SW, Washington, DC 20585; (202) 586-1411 (AskOE@hq.doe.gov).

[85 FR 31670, May 27, 2020]

§ 218.1 Purpose and scope.

(a) This part implements section 251 of the Energy Policy and Conservation Act (Pub. L. 94-163) (42 U.S.C. 6271), as amended, which authorizes the President to take such action as he determines to be necessary for performance of the obligations of the United States under chapters III and IV of the Agreement on an International Energy Program (TIAS 8278), insofar as such obligations relate to the mandatory international allocation of oil by International Energy Program participating countries.

(b) Applicability. This part applies to any firm engaged in producing, transporting, refining, distributing or storing oil which is subject to the jurisdiction of the United States.

§ 218.2 Activation/Deactivation.

(a) This rule shall take effect providing:

(1) The International Energy Program has been activated; and,

(2) The President has transmitted this rule to Congress, has found putting such rule into effect is required in order to fulfill obligations of the United States under the International Energy Program and has transmitted such a finding to the Congress together with a statement of the effective date and manner for exercise of such rule.

(b) This rule shall revert to standby status no later than 60 days after the deactivation of the emergency allocation system activated to implement the International Energy Program.

§ 218.3 Definitions.

DOE means the Department of Energy established by the Department of Energy Organization Act (Pub. L. 95-91), and includes the Secretary of Energy or his delegate.

EPCA means the Energy Policy and Conservation Act (Pub. L. 94-163), as amended.

Firm means any association, company, corporation, estate, individual, joint-venture, partnership, or sole proprietorship or any other entity however organized including charitable, educational, or other eleemosynary institutions, and the Federal Government including corporations, departments, Federal agencies, and other instrumentalities, and State and local governments. The ERA may, in regulations and forms issued in this part, treat as a firm: (a) A parent and the consolidated and unconsolidated entities (if any) which it directly or indirectly controls, (b) a parent and its consolidated entities, (c) an unconsolidated entity, or (d) any part of a firm.

IEA means the International Energy Agency established to implement the IEP.

IEP means the International Energy Program established pursuant to the Agreement on an International Energy Program signed at Paris, France, on November 18, 1974, including (a) the Annex entitled “Emergency Reserves”, (b) any amendment to such Agreement that includes another nation as a Party to such Agreement, and (c) any technical or clerical amendment to such Agreement.

International energy supply emergency means any period (a) beginning on any date that the President determines allocation of petroleum products to nations participating in the IEP is required by chapters III and IV of the IEP and (b) ending on a date on which he determines such allocation is no longer required.

Oil means crude oil, residual fuel oil, unfinished oil, refined petroleum product and natural gas liquids, which is owned or controlled by a firm, including any petroleum product destined, directly or indirectly, for import into the United States or any foreign country, or produced in the United States but excludes any oil stored in or owned and controlled by the United States Government in connection with the Strategic Petroleum Reserve authorized in section 151, et seq., of the Energy Policy and Conservation Act (Pub. L. 94-163).

Person means any individual, firm, estate, trust, sole proprietorship, partnership, association, company, joint-venture, corporation, governmental unit or instrumentality thereof, or a charitable, educational or other institution, and includes any officer, director, owner or duly authorized representative thereof.

Supply order means a written directive or a verbal communication of a written directive, if promptly confirmed in writing, issued by the DOE pursuant to subpart B of this part.

United States when used in the geographic sense means the several States, the District of Columbia, Puerto Rico, and the territories and possessions of the United States, and the outer continental shelf as defined in 43 U.S.C. 1331.

§ 218.10 Rule.

(a) Upon the determination by the President that an international energy supply emergency exists, firms engaged in producing, transporting, refining, distributing, or storing oil shall take such actions as are determined by the DOE to be necessary for implementation of the obligations of the United States under chapters III and IV of the IEP that relate to the mandatory international allocation of oil by IEP participating countries.

(b) Any actions required in accordance with paragraph (a) of this section shall be stated in supply orders issued by DOE.

(c) No firm to which a supply order is issued shall be required to comply with such order unless the firm to which the oil is to be provided in accordance with such supply order has agreed to a procedure for the resolution of any dispute related to the terms and conditions of the sale undertaken pursuant to the supply order. The means for resolving any such disputes may include any procedures that are mutually acceptable to the parties, including arbitration before the IEA if the IEA has established arbitration procedures, arbitration or adjudication before an appropriate body, or any other similar procedure.

§ 218.11 Supply orders.

(a) A supply order shall require that the firm to which it is issued take actions specified therein relating to supplying the stated volume of oil to a specified recipient including, but not limited to, distributing, producing, storing, transporting or refining oil. A supply order shall include a concise statement of the pertinent facts and of the legal basis on which it is issued, and shall describe the action to be taken.

(b) The DOE shall serve a copy of the supply order on the firm directed to act as stated therein.

(c) The DOE may modify or rescind a supply order on its own motion or pursuant to an application filed in accordance with § 218.32 of this part.

(d) A supply order shall be effective in accordance with its terms, and when served upon a firm directed to act thereunder, except that a supply order shall not remain in effect (1) upon reversion of this rule to standby status or (2) twelve months after the rule has been transmitted to Congress (whichever occurs first) or (3) to the extent that DOE or a court of competent jurisdiction directs that it be stayed, modified, or rescinded.

(e) Any firm issued a supply order pursuant to this subpart may seek modification or rescission of the supply order in accordance with procedures provided in § 218.32 of this part.

§ 218.12 Pricing.

The price for oil subject to a supply order issued pursuant to this subpart shall be based on the price conditions prevailing for comparable commercial transactions at the time the supply order is served.

§ 218.30 Purpose and scope.

This subpart establishes the administrative procedures applicable to supply orders. They shall be exclusive of any other procedures contained in this chapter, unless such other procedures are specifically made applicable hereto by this subpart.

§ 218.31 Incorporated procedures.

The following subparts of part 205 of this chapter are, as appropriate, hereby made applicable to this part:

(a) Subpart A— General Provisions; Provided, that § 205.11 shall not apply; and Provided further, that in addition to the methods of service specified in § 205.7 of this chapter, service shall be effective if a supply order is transmitted by telex, telecopies or other similar means of electronic transmission of a writing and received by the firm to which the supply order is addressed.

(b) Subpart F— Interpretation.

(c) Subpart K— Rulings.

(d) Subpart M— Conferences, Hearings and Public Hearings.

§ 218.32 Review.

(a) Purpose and scope. This subpart establishes the procedures for the filing of an application for review of a supply order. An application for review is a summary proceeding which will be initiated only if the criteria described in paragraph (g)(2) of this section are satisfied.

(b) What to file. (1) A firm filing under this subpart shall file an “Application for Review” which should be clearly labeled as such both on the application and on the outside of the envelope in which the application is transmitted, and shall be in writing and signed by the firm filing the application. The applicant shall comply with the general filing requirements stated in 10 CFR 205.9 in addition to the requirements stated in this section.

(2) If the applicant wishes to claim confidential treatment for any information contained in the application or other documents submitted under this subpart, the procedures set out in 10 CFR 205.9(f) shall apply.

(c) When to file. An application for review should be filed no later than 5 days after the receipt by the applicant of the supply order that is the subject of the application, or no later than 2 days after the occurrence of an event that results in a substantial change in the facts or circumstances affecting the applicant.

(d) Where to file. The application for review shall be filed with DOE Office of Hearings and Appeals (OHA), 2000 M Street, NW., Washington, DC 20461.

(e) Notice. The applicant shall send by United States mail or deliver by hand a copy of the application and any subsequent amendments or other documents relating to the application to the Administrator of the Economic Regulatory Administration of DOE, 2000 M Street, NW., Washington, DC 20461. Service shall be made on the ERA at same time the document is filed with OHA and each document filed with the OHA shall include certification that the applicant has complied with the requirements of this paragraph.

(f) Contents. (1) The application shall contain a full and complete statement of all relevant facts pertaining to the application and to the DOE action sought. Such facts shall include a complete statement of the business or other reasons that justify review of the supply order and a full description of the pertinent provisions and relevant facts contained in any relevant documents. Copies of all contracts, agreements, leases, instruments, and other documents relevant to the application shall be submitted with the application. A copy of the order of which review is sought shall be included with the application. When the application pertains to only one step of a larger integrated transaction, the facts, circumstances, and other relevant information pertaining to the entire transaction shall be submitted.

(2) The application shall include a discussion of all relevant authorities, including, but not limited to, DOE and DOE rulings, regulations, interpretations and decisions on appeal and exception relied upon to support the action sought therein.

(g) DOE evaluation—(1) Processing. (i) The DOE may initiate an investigation of any statement in an application and utilize in its evaluation any relevant facts obtained by such investigation. The DOE may solicit and accept submissions from third parties relevant to any application for review provided that the applicant is afforded an opportunity to respond to all third party submissions. In evaluating an application for review, the DOE may convene a conference, on its own initiative, if, in its discretion, it considers that a conference will advance its evaluation of the application.

(ii) If the DOE determines that there is insufficient information upon which to base a decision and if upon request the necessary additional information is not submitted, the DOE may dismiss the application without prejudice. If the failure to supply additional information is repeated or willful, the DOE may dismiss the application with prejudice. If the applicant fails to provide the notice required by paragraph (e) of this section, the DOE may dismiss the application without prejudice.

(iii) An order dismissing an application for any of the reasons specified in paragraph (g)(1)(ii) of this section shall contain a statement of the grounds for the dismissal. The order shall become final within 5 days of its service upon the applicant, unless within such 5-day period the applicant files an amendment correcting the deficiencies identified in the order. Within 5 days of the filing of such amendment, the DOE shall notify the applicant whether the amendment corrects the specified deficiencies. If the amendment does not correct the deficiencies specified in the order, the order shall become a final order of the DOE of which the applicant may seek judicial review.

(2) An application for review of an order shall be processed only if the applicant demonstrates that—

(i) There is probable cause to believe that the supply order is erroneous, inequitable, or unduly burdensome; or

(ii) There has been discovered a law, regulation, interpretation, ruling, order or decision that was in effect at the time of the application which, if it had been made known to the DOE, would have been relevant to the supply order and would have substantially altered the supply order; or

(iii) There has been a substantial change in the facts or circumstances affecting the applicant, which change has occurred during the interval between issuance of the supply order and the date of the application and was caused by forces or circumstances beyond the control of the applicant.

(h) Decision. (1) Upon consideration of the application and other relevant information received or obtained during the proceeding, the DOE shall issue an order granting or denying the modification or rescission of the supply order requested in the application for review.

(2) The DOE shall process applications for review as expeditiously as possible. When administratively feasible, the DOE shall issue an order granting or denying the application within 20 business days after receipt of the application.

(3) The order shall include a written statement setting forth the relevant facts and the legal basis of the order. The order shall state that it is a final order of which the applicant may seek judicial review.

(4) The DOE shall serve a copy of the order upon the applicant and any other party who participated in the proceeding.

§ 218.33 Stay.

(a) The DOE may issue an order granting a stay if the DOE determines that an applicant has made a compelling showing that it would incur serious and irreparable injury unless immediate stay relief is granted pending determination of an application for review pursuant to this subpart. An application for a stay shall be labeled as such on the application and on the outside of the envelope in which the application is transmitted, and shall be in writing and signed by the firm filing the application. It shall include a description of the proceeding incident to which the stay is being sought and of the facts and circumstances which support the applicant's claim that it will incur irreparable injury unless immediate stay relief is granted. The applicant shall comply with the general filing requirements stated in 10 CFR 205.9 in addition to the requirements stated in this section. The DOE on its own initiative may also issue an order granting a stay upon a finding that a firm will incur irreparable injury if such an order is not granted.

(b) An order granting a stay shall expire by its terms within such time after issuance, not to exceed 30 days as the DOE specifies in the order, except that it shall expire automatically 5 days following its issuance if the applicant fails within that period to file an application for review unless within that period the DOE for good cause shown, extends the time during which the applicant may file an application for review.

(c) The order granting or denying a stay is not an order of the DOE subject to administrative review.

§ 218.34 Addresses.

All correspondence, petitions, and any information required by this part shall be submitted to: Administrator, Economic Regulatory Administration, Department of Energy, 2000 M Street, NW., Washington, DC 20461, and to the Director, Office of Hearings and Appeals, Department of Energy, 2000 M Street, NW., Washington, DC 20461.

§ 218.40 Investigations.

(a) The DOE may initiate and conduct investigations relating to the scope, nature and extent of compliance by any person with the rules, regulations or statutes of the DOE or any order promulgated by the DOE under the authority of section 251 of EPCA, or any court decree.

(b) Any duly designated and authorized representative of DOE has the authority to conduct an investigation and to take such action as he deems necessary and appropriate to the conduct of the investigation including any action pursuant to § 205.8.

(c) There are no parties, as that term is used in adjudicative proceedings, in an investigation under this subpart, and no person may intervene or participate as a matter of right in any investigation under this subpart.

(d) Any person may request the DOE to initiate an investigation pursuant to paragraph (a) of this section. A request for an investigation shall set forth the subject matter to be investigated as fully as possible and include supporting documentation and information. No particular forms or procedures are required.

(e) Any person who is requested to furnish documentary evidence or testimony in an investigation, upon written request, shall be informed of the general purpose of the investigation.

(f) DOE shall not disclose information or documents that are obtained during any investigation unless (1) DOE directs or authorizes the public disclosure of the investigation; (2) the information or documents are a matter of public record; or (3) disclosure is not precluded by the Freedom of Information Act, 5 U.S.C. 552 and 10 CFR part 1004.

(g) During the course of an investigation any person may submit at any time any document, statement of facts or memorandum of law for the purpose of explaining the person's position or furnish evidence which the person considers relevant to a matter under investigation.

(h) If facts disclosed by an investigation indicate that further action is unnecessary or unwarranted, the investigative file may be closed without prejudice to further investigation by the DOE at any time that circumstances so warrant.

§ 218.41 Violations.

Any practice that circumvents, contravenes or results in the circumvention or contravention of the requirements of any provision of this part 218 or any order issued pursuant thereto is a violation of the DOE regulations stated in this part and is unlawful.

§ 218.42 Sanctions.

(a) General. Any person who violates any provisions of this part 218 or any order issued pursuant thereto shall be subject to penalties and sanctions as provided herein.

(1) The provisions herein for penalties and sanctions shall be deemed cumulative and not mutually exclusive.

(2) Each day that a violation of the provisions of this part 218 or any order issued pursuant thereto continues shall be deemed to constitute a separate violation within the meaning of the provisions of this part relating to fines and civil penalties.

(b) Penalties. (1) Any person who violates any provision of this part or any order issued pursuant thereto shall be subject to a civil penalty of not more than $28,748 for each violation.

(2) Any person who willfully violates any provision of this part 218 or any order issued pursuant thereto shall be subject to a fine of not more than $10,000 for each violation.

(3) Any person who knowingly and willfully violates any provision of this part 218 or any order issued pursuant thereto with respect to the sale, offer of sale, or distribution in commerce of oil in commerce after having been subject to a sanction under paragraph (b)(1) or (2) of this section for a prior violation of the provisions of this part 218 or any order issued pursuant thereto with respect to the sale, offer of sale, or distribution in commerce of oil shall be subject to a fine of not more than $50,000 or imprisonment for not more than six months, or both, for each violation.

(4) Actions for penalties under this section are prosecuted by the Department of Justice upon referral by the DOE.

(5) When the DOE considers it to be appropriate or advisable, the DOE may compromise and settle any action under this paragraph, and collect civil penalties.

(c) Other Penalties. Willful concealment of material facts, or making of false, fictitious or fraudulent statements or representations, or submission of a document containing false, fictitious or fraudulent statements pertaining to matters within the scope of this part 218 by any person shall subject such persons to the criminal penalties provided in 18 U.S.C. 1001 (1970).

[44 FR 27972, May 14, 1979, as amended at 62 FR 46183, Sept. 2, 1997; 74 FR 66032, Dec. 14, 2009; 79 FR 19, Jan. 2, 2014; 81 FR 41793, June 28, 2016; 81 FR 96351, Dec. 30, 2016; 83 FR 1291, Jan. 11, 2018; 83 FR 66083, Dec. 26, 2018; 85 FR 830, Jan. 8, 2020; 86 FR 2955, Jan. 14, 2021; 87 FR 1063, Jan. 10, 2022; 88 FR 2193, Jan. 13, 2023; 89 FR 1027, Jan. 9, 2024; 89 FR 105406, Dec. 27, 2024]

§ 218.43 Injunctions.

Whenever it appears to the DOE that any firm has engaged, is engaging, or is about to engage in any act or practice constituting a violation of any regulation or order issued under this part 218, the DOE may request the Attorney General to bring a civil action in the appropriate district court of the United States to enjoin such acts or practices and, upon a proper showing, a temporary restraining order or a preliminary or permanent injunction shall be granted without bond. The relief sought may include a mandatory injunction commanding any firm to comply with any provision of such order or regulation, the violation of which is prohibited by section 524 of the EPCA.

§ 221.1 Scope.

This part sets forth the procedures to be utilized by the Economic Regulatory Administration of the Department of Energy and the Department of Defense whenever the priority supply of crude oil and petroleum products is necessary or appropriate to meet national defense needs. The procedures available in this part are intended to supplement but not to supplant other regulations of the ERA regarding the allocation of crude oil, residual fuel oil and refined petroleum products.

§ 221.2 Applicability.

This part applies to the mandatory supply of crude oil, refined petroleum products (including liquefied petroleum gases) and lubricants to the Department of Defense for its own use or for purchases made by the Department of Defense on behalf of other Federal Government agencies.

§ 221.11 Natural gas and ethane.

The supply of natural gas and ethane are excluded from this part.

§ 221.21 Definitions.

For purposes of this part—

Directive means an official action taken by ERA which requires a named person to take an action in accordance with its provisions.

DOD means the Department of Defense, including Military Departments and Defense Agencies, acting through either the Secretary of Defense or the designee of the Secretary.

ERA means the Economic Regulatory Administration of the Department of Energy.

National defense means programs for military and atomic energy production or construction, military assistance to any foreign nation, stockpiling and space, or activities directly related to any of the above.

Person means any individual, corporation, partnership, association or any other organized group of persons, and includes any agency of the United States Government or any other government.

Priority-rated supply order means any delivery order for crude oil or petroleum products issued by DOD bearing a priority rating issued by ERA under this part.

Supplier means any person other than the DOD which supplies, sells, transfers, or otherwise furnishes (as by consignment) crude oil or petroleum product to any other person.

§ 221.31 Requests by DOD.

(a) When DOD finds that (1) a fuel supply shortage for DOD exists or is anticipated which would have a substantial negative impact on the national defense, and (2) the defense activity for which fuel is required cannot be postponed until after the fuel supply shortage is likely to terminate, DOD may submit a written request to ERA for the issuance to it of a priority rating for the supply of crude oil and petroleum products.

(b) Not later than the transmittal date of its request to ERA, DOD shall notify the Federal Emergency Management Agency that it has requested a priority rating from ERA.

(c) Requests from DOD shall set forth the following:

(1) The quantity and quality of crude oil or petroleum products determined by DOD to be required to meet national defense requirements;

(2) The required delivery dates;

(3) The defense-related activity and the supply location for which the crude oil or petroleum product is to be delivered;

(4) The current or most recent suppliers of the crude oil or petroleum product and the reasons, if known, why the suppliers will not supply the requested crude oil or petroleum product;

(5) The degree to which it is feasible for DOD to use an alternate product in lieu of that requested and, if such an alternative product can be used, the efforts which have been made to obtain the alternate product;

(6) The period during which the shortage of crude oil or petroleum products is expected to exist;

(7) The proposed supply source for the additional crude oil or petroleum products required, which shall, if practicable, be the historical supplier of such crude oil or product to DOD; and

(8) Certification that DOD has made each of the findings required by paragraph (a) of this section.

§ 221.32 Evaluation of DOD request.

(a) Upon receipt of a request from DOD for a priority rating as provided in § 221.31, it shall be reviewed promptly by ERA. The ERA will assess the request in terms of:

(1) The information provided under § 221.31;

(2) Whether DOD's national defense needs for crude oil or petroleum products can reasonably be satisfied without exercising the authority specified in this part;

(3) The capability of the proposed supplier to supply the crude oil or petroleum product in the amounts required;

(4) The known capabilities of alternative suppliers;

(5) The feasibility to DOD of converting to and using a product other than that requested; and

(6) Any other relevant information.

(b) The ERA promptly shall notify the proposed supplier of DOD's request for a priority rating specified under this part. The proposed supplier shall have a period specified in the notice, not to exceed fifteen (15) days from the date it is notified of DOD's request, to show cause in writing why it cannot supply the requested quantity and quality of crude oil or petroleum products. ERA shall consider this information in determining whether to issue the priority rating.

(c) If acceptance by a supplier of a rated order would create a conflict with another rated order of the supplier, it shall include all pertinent information regarding such conflict in its response to the show cause order provided for in subsection (b), and ERA, in consultation with DOD and the Federal Emergency Management Agency shall determine the priorities for meeting all such requirements.

(d) ERA may waive some or all of the requirements of § 221.31 or this section where the Secretary of Defense or his designee certifies, and has so notified the Federal Emergency Management Agency, that a fuel shortage for DOD exists or is imminent and that compliance with such requirements would have a substantial negative impact on the national defense.

§ 221.33 Order.

(a) Issuance. If ERA determines that issuance of a priority rating for a crude oil or refined petroleum product is necessary to provide the crude oil or petroleum products needed to meet the national defense requirement established by DOD, it shall issue such a rating to DOD for delivery of specified qualities and quantities of the crude oil or refined petroleum products on or during specified delivery dates or periods. In accordance with the terms of the order, DOD may then place such priority rating on a supply order.

(b) Compliance. Each person who receives a priority-rated supply order pursuant to this part shall supply the specified crude oil or petroleum products to DOD in accordance with the terms of that order.

(c) ERA directives. Notwithstanding any other provisions of this part, where necessary or appropriate to promote the national defense ERA is authorized to issue a directive to a supplier of crude oil or petroleum product requiring delivery of specified qualities and quantities of such crude oil or petroleum products to DOD at or during specified delivery dates or periods.

(d) Use of ratings by suppliers. No supplier who receives a priority-rated supply order or directive issued under the authority of this section may use such priority order or directive in order to obtain materials necessary to meet its supply obligations thereunder.

§ 221.34 Effect of order.

Defense against claims for damages. No person shall be liable for damages or penalties for any act or failure to act resulting directly or indirectly from compliance with any ERA authorized priority-rated supply order or ERA directive issued pursuant to this part, notwithstanding that such priority-rated supply order or directive thereafter be declared by judicial or other competent authority to be invalid.

§ 221.35 Contractual requirements.

(a) No supplier may discriminate against an order or contract on which a priority rating has been placed under this part by charging higher prices, by imposing terms and conditions for such orders or contracts different from other generally comparable orders or contracts, or by any other means.

(b) Contracts with priority ratings shall be subject to all applicable laws and regulations which govern the making of such contracts, including those specified in 10 CFR 211.26(e).

§ 221.36 Records and reports.

(a) Each person receiving an order or directive under this part shall keep for at least two years from the date of full compliance with such order or directive accurate and complete records of crude oil and petroleum product deliveries made in accordance with such order or directive.

(b) All records required to be maintained shall be made available upon request for inspection and audit by duly authorized representatives of the ERA.

(Approved by the Office of Management and Budget under control number 1903-0073)

[45 FR 76433, Nov. 19, 1980, as amended at 46 FR 63209, Dec. 31, 1981]

§ 221.37 Violations and sanctions.

(a) Any practice that circumvents or contravenes the requirements of this part or any order or directive issued under this part is a violation of the regulations provided in this part.

(b) Criminal penalties. Any person who willfully performs any act prohibited, or willfully fails to perform any act required by this part or any order or directive issued under this part shall be subject to a fine of not more than $10,000 for each violation or imprisoned for not more than one year for each violation, or both.

(c) Whenever in the judgment of the Administrator of ERA any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of these regulations, the Administrator may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision.

§ 300.1 General.

(a) Purpose. The General Guidelines in this part and the Technical Guidelines incorporated by reference in § 300.13 govern the Voluntary Reporting of Greenhouse Gases Program authorized by section 1605(b) of the Energy Policy Act of 1992 (42 U.S.C. 13385(b)). The purpose of the guidelines is to establish the procedures and requirements for filing voluntary reports, and to encourage corporations, government agencies, non-profit organizations, households and other private and public entities to submit annual reports of their greenhouse gas emissions, emission reductions, and sequestration activities that are complete, reliable and consistent. Over time, it is anticipated that these reports will provide a reliable record of the contributions reporting entities have made toward reducing their greenhouse gas emissions.

(b) Reporting under the program. (1) Each reporting entity, whether or not it intends to register emissions as described in paragraph (c) of this section, must:

(i) File an entity statement that meets the appropriate requirements in § 300.5(d) through (f) of this part;

(ii) Use appropriate emission inventory and emission reduction calculation methods specified in the Technical Guidelines (incorporated by reference, see § 300.13), and calculate and report the weighted average quality rating of any emission inventories it reports;

(iii) Comply with the record keeping requirements in § 300.9 of this part; and

(iv) Comply with the certification requirements in § 300.10 of this part;

(2) Each reporting entity, whether or not it intends to register emissions as described in paragraph (c) of this section, may report offset reductions achieved by other entities outside their boundaries as long as such reductions are reported separately and calculated in accordance with methods specified in the Technical Guidelines. The third-party entity that achieved these reductions must agree to their being reported as offset reductions, and must also meet all of the requirements of reporting that would apply if the third-party entity reported directly under the 1605(b) program.

(3) An entity that intends to register emissions and emission reductions must meet the additional requirements referenced in paragraph (c) of this section.

(4) An entity that does not intend to register emissions and emission reductions may choose to report its emissions and/or emission reductions on an entity-wide basis or for selected elements of the entity, selected gases or selected sources.

(5) An entity that does not intend to register emissions may report emission inventories for any year back to 1990 and may report emission reductions for any year back to 1991, relative to a base period of one to four years, ending no earlier than 1990.

(c) Registration requirements. Entities that seek to register reductions must meet the additional requirements in this paragraph; although these requirements differ depending on whether the entity is a large or small emitter.

(1) To be eligible for registration, a reduction must have been achieved after 2002, unless the entity has committed under the Climate Leaders or Climate VISION programs to reduce its entity-wide emissions relative to a base period that ends earlier 2002, but no earlier than 2000.

(2) A large emitter must submit an entity-wide emission inventory that meets or exceeds the minimum quality requirements specified in § 300.6(b) and the Technical Guidelines (incorporated by reference, see § 300.13). Registered reductions of a large emitter must be based on an entity-wide assessment of net emission reductions, determined in accordance with § 300.8 and the Technical Guidelines.

(3) A small emitter must also submit an emission inventory that meets minimum quality requirements specified in § 300.6(b) and the Technical Guidelines (incorporated by reference, see § 300.13) and base its registered reductions on an assessment of annual changes in net emissions. A small emitter, however, may restrict its inventory and assessment to a single type of activity, such as forest management, building operations or agricultural tillage.

(4) Reporting entities may, under certain conditions, register reductions achieved by other entities:

(i) Reporting entities that have met the requirements for registering their own reductions may also register offset reductions achieved by other entities if:

(A) They have an agreement with the third-party entities to do so and these third-party entities have met all of the requirements for registration; or

(B) They were the result of qualified demand management or other programs and are calculated in accordance with the action-specific method identified in § 300.8(h)(5).

(ii) Small emitters that serve as an aggregator may register offset reductions achieved by non-reporting entities without reporting on their own emissions, as long as they have an agreement with the third-party entities to do so and these third-party entities have met all of the requirements for registration.

(d) Forms. Annual reports of greenhouse gas emissions, emission reductions, and sequestration must be made on forms or software made available by the Energy Information Administration of the Department of Energy (EIA).

(e) Status of reports under previous guidelines. EIA continues to maintain in its Voluntary Reporting of Greenhouse Gases database all reports received pursuant to DOE's October 1994 guidelines. Those guidelines are available from EIA at http://www.eia.doe.gov/oiaf/1605/guidelns.html.

(f) Periodic review and updating of General and Technical Guidelines. DOE intends periodically to review the General Guidelines and the Technical Guidelines (incorporated by reference, see § 300.13) to determine whether any changes are warranted; DOE anticipates these reviews will occur approximately once every three years. These reviews will consider any new developments in climate science or policy, the participation rates of large and small emitters in the 1605(b) program, the general quality of the data submitted by different participants, and any changes to other emissions reporting protocols. Possible changes may include, but are not limited to:

(1) The addition of greenhouse gases that have been demonstrated to have significant, quantifiable climate forcing effects when released to the atmosphere in significant quantities;

(2) Changes to the minimum, quantity-weighted quality rating for emission inventories;

(3) Updates to emission inventory methods, emission factors and other provisions that are contained in industry protocols or standards. The review may also consider updates to any government-developed and consensus-based emission factors for which automatic updating is not provided in the Technical Guidelines;

(4) Modifications to the benchmarks or emission conversion factors used to calculate avoided and indirect emissions; and

(5) Changes in the minimum requirements for registered emission reductions.

§ 300.2 Definitions.

This section provides definitions for commonly used terms in this part.

Activity of a small emitter means, with respect to a small emitter, any single category of anthropogenic production, consumption or other action that releases emissions or results in sequestration, the annual changes of which can be assessed generally by using a single calculation method.

Aggregator means an entity that reports to the 1605(b) program on behalf of non-reporting entities. An aggregator may be a large or small emitter, such as a trade association, non-profit organization or public agency.

Anthropogenic means greenhouse gas emissions and removals that are a direct result of human activities or are the result of natural processes that have been affected by human activities.

Avoided emissions means the greenhouse gas emission reductions that occur outside the organizational boundary of the reporting entity as a direct consequence of changes in the entity's activity, including but not necessarily limited to the emission reductions associated with increases in the generation and sale of electricity, steam, hot water or chilled water produced from energy sources that emit fewer greenhouse gases per unit than other competing sources of these forms of distributed energy.

Base period means a period of 1-4 years used to derive the average annual base emissions, emissions intensity or other values from which emission reductions are calculated.

Base value means the value from which emission reductions are calculated for an entity or subentity. The value may be annual emissions, emissions intensity, kilowatt-hours generated, or other value specified in the 1605(b) guidelines. It is usually derived from actual emissions and/or activity data derived from the base period.

Biogenic emissions mean emissions that are naturally occurring and are not significantly affected by human actions or activity.

Boundary means the actual or virtual line that encompasses all the emissions and carbon stocks that are to be quantified and reported in an entity's greenhouse gas inventory, including de minimis emissions. Entities may use financial control or another classification method based on ownership or control as the means of determining which sources or carbon stocks fall within this organizational boundary.

Carbon dioxide equivalent means the amount of carbon dioxide by weight emitted into the atmosphere that would produce the same estimated radiative forcing as a given weight of another radiatively active gas. Carbon dioxide equivalents are computed by multiplying the weight of the gas being measured by its estimated global warming potential.

Carbon stocks mean the quantity of carbon stored in biological and physical systems including: trees, products of harvested trees, agricultural crops, plants, wood and paper products and other terrestrial biosphere sinks, soils, oceans, and sedimentary and geological sinks.

Climate Leaders means the EPA sponsored industry-government partnership that works with individual companies to develop long-term comprehensive climate change strategies. Certain Climate Leaders Partners have, working with EPA, set a corporate-wide greenhouse gas reduction goal and have inventoried their emissions to measure progress towards their goal.

Climate VISION means the public-private partnership initiated pursuant to a Presidential directive issued in 2002 that aims to contribute to the President's goal of reducing greenhouse gas intensity through voluntary frameworks with industry. Climate VISION partners have signed an agreement with DOE to implement various climate-related actions to reduce greenhouse gas emissions.

De minimis emissions means emissions from one or more sources and of one or more greenhouse gases that, in aggregate, are less than or equal to 3 percent of the total annual carbon dioxide (CO2) equivalent emissions of a reporting entity.

Department or DOE means the U.S. Department of Energy.

Direct emissions are emissions from sources within the organizational boundaries of an entity.

Distributed energy means electrical or thermal energy generated by an entity that is sold or otherwise exported outside of the entity's boundaries for use by another entity.

EIA means the Energy Information Administration within the U.S. Department of Energy.

Emissions means the direct release of greenhouse gases to the atmosphere from any anthropogenic (human induced) source and certain indirect emissions (releases) specified in this part.

Emissions intensity means emissions per unit of output, where output is defined as the quantity of physical output, or a non-physical indicator of an entity's or subentity's productive activity.

Entity means the whole or part of any business, institution, organization, government agency or corporation, or household that:

(1) Is recognized under any U.S. Federal, State or local law that applies to it;

(2) Is located and operates, at least in part, in the United States; and

(3) The emissions of such operations are released, at least in part, in the United States.

First reduction year means the first year for which an entity intends to register emission reductions; it is the year that immediately follows the start year.

Fugitive emissions means uncontrolled releases to the atmosphere of greenhouse gases from the processing, transmission, and/or transportation of fossil fuels or other materials, such as HFC leaks from refrigeration, SF6 from electrical power distributors, and methane from solid waste landfills, among others, that are not emitted via an exhaust pipe(s) or stack(s).

Greenhouse gases means the gases that may be reported to the Department of Energy under this program. They are:

(1) Carbon dioxide (CO2)

(2) Methane (CH4)

(3) Nitrous oxide (N2O)

(4) HydrofluorocarbonsHFC-23 [trifluoromethane-(CHF3]HFC-32 [trifluoromethane-CH2F2], CH2CF3, CH3F, CHF2CF3, CH2FCF3, CH3FCF3, CHF2CH2F, CF3CH3, CH2FCH2F, CH3CHF2, CH3CH2F, CF3CHFCF3, CH2FCF3CF3, CHF2CHFCF3, CF3CH2CF3, CH2FCF2CHF2, CHF2CH2CF3, CF3CH2CF2CH3, CH3 CHFCHFCF2)

(5) Perfluorocarbons (perfluoromethane-CF4, perfluoroethane-C2F6, C3F8, C4F10, c-C4F8, C5F12, C6F14)

(6) Sulfur hexafluoride (SF6)

(7) Chlorofluorocarbons (CFC-11 [trichlorofluoromethane-CCl3F], CCl2F2, CClF3, CCl2FCClF2, CClF2CClF2, ClF3CClF2,)

(8) Other gases or particles that have been demonstrated to have significant, quantifiable climate forcing effects when released to the atmosphere in significant quantities and for which DOE has established or approved methods for estimating emissions and reductions. (Note: As provided in § 300.6(i), chlorofluorcarbons and other gases with quantifiable climate forcing effects may be reported to the 1605(b) program if DOE has established an appropriate emission inventory or emission reduction calculation method, but reductions of these gases may not be registered.)

Incidental lands are entity landholdings that are a minor component of an entity's operations and are not actively managed for production of goods and services, including:

(1) Transmission, pipeline, or transportation right of ways that are not managed for timber production;

(2) Land surrounding commercial enterprises or facilities; and

(3) Land where carbon stock changes are determined by natural factors.

Indirect emissions means greenhouse gas emissions from stationary or mobile sources outside the organizational boundary that occur as a direct consequence of an entity's activity, including but not necessarily limited to the emissions associated with the generation of electricity, steam and hot/chilled water used by the entity.

Large emitter means an entity whose annual emissions are more than 10,000 metric tons of CO2 equivalent, as determined in accordance with § 300.5(c).

Net emission reductions means the sum of all annual changes in emissions, eligible avoided emissions and sequestration of the greenhouse gases specifically identified in § 300.6(i), and determined to be in conformance with §§ 300.7 and 300.8 of this part.

Offset means an emission reduction that is included in a 1605(b) report and meets the requirements of this part, but is achieved by an entity other than the reporting entity. Offset reductions must not be reported or registered by any other entity and must appear as a separate and distinct component of an entity's report. Offsets are not integrated into the reporting entity's emissions or net emission reductions.

Registration means the reporting of emission reductions that the EIA has determined meet the qualifications for registered emission reductions set forth in the guidelines.

Reporting entity means an entity that has submitted a report under the 1605(b) program that has been accepted by the Energy Information Administration.

Reporting year means the year that is the subject of a report to DOE.

Sequestration means the process by which CO2 is removed from the atmosphere, either through biologic processes or physical processes.

Simplified Emission Inventory Tool (SEIT) is a computer-based method, to be developed and made readily accessible by EIA, for translating common physical indicators into an estimate of greenhouse gas emissions.

Sink means an identifiable discrete location, set of locations, or area in which CO2 or some other greenhouse gas is sequestered.

Small emitter means an entity whose annual emissions are less than or equal to 10,000 metric tons of CO2 equivalent, as determined in accordance with § 300.5(c), and that chooses to be treated as a small emitter under the guidelines.

Source means any land, facility, process, vehicle or activity that releases a greenhouse gas.

Start year means the year upon which the initial entity statement is based and the last year of the initial base period(s).

Subentity means a component of any entity, such as a discrete business line, facility, plant, vehicle fleet, or energy using system, which has associated with it emissions of greenhouse gases that can be distinguished from the emissions of all other components of the same entity and, when summed with the emissions of all other subentities, equal the entity's total emissions.

Total emissions means the total annual contribution of the greenhouse gases (as defined in this section) to the atmosphere by an entity, including both direct and indirect entity-wide emissions.

United States or U.S. means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the Commonwealth of the Northern Mariana Islands, Guam, American Samoa, and any other territory of the United States.

§ 300.3 Guidance for defining and naming the reporting entity.

(a) A reporting entity must be composed of one or more businesses, public or private institutions or organizations, households, or other entities having operations that annually release emissions, at least in part, in the United States. Entities may be defined by, as appropriate, a certificate of incorporation, corporate charter, corporate filings, tax identification number, or other legal basis of identification recognized under any Federal, State or local law or regulation. If a reporting entity is composed of more than one entity, all of the entities included must be responsible to the same management hierarchy and all entities that have the same management hierarchy must be included in the reporting entity.

(b) All reporting entities are strongly encouraged to define themselves at the highest level of aggregation. To achieve this objective, DOE suggests the use of a corporate-level definition of the entity, based on filings with the Securities and Exchange Commission or institutional charters. While reporting at the highest level of aggregation is encouraged, DOE recognizes that certain businesses and institutions may conclude that reporting at some lower level is desirable. Federal agencies are encouraged to report at the agency or departmental level, but distinct organizational units (such as a Department of the Interior Fish and Wildlife Service National Wildlife Refuge) may report directly if authorized by their department or agency. Once an entity has determined the level of corporate or institutional management at which it will report (e.g., the holding company, subsidiary, regulated stationary source, state government, agency, refuge, etc.), the entity must include all elements of the organization encompassed by that management level and exclude any organizations that are managed separately. For example, if two subsidiaries of a parent company are to be covered by a single report, then all subsidiaries of that parent company must also be included. Similarly, if a company decides to report on the U.S. and Canadian subsidiaries of its North American operations unit, it must also report on any other subsidiaries of its North American unit, such as a Mexican subsidiary.

(c) A name for the defined entity must be specified by all reporters. For entities that intend to register reductions, this should be the name commonly used to represent the activities being reported, as long as it is not also used to refer to substantial activities not covered by the entity's reports. While DOE believes entities should be given considerable flexibility in defining themselves at an appropriate level of aggregation, it is essential that the name assigned to an entity that intends to register reductions corresponds closely to the scope of the operations and emissions covered by its report. If, for example, an individual plant or operating unit is reporting as an entity, it should be given a name that corresponds to the specific plant or unit, and not to the responsible subsidiary or corporate entity. In order to distinguish a parent company from its subsidiaries, the name of the parent company generally should not be incorporated into the name of the reporting subsidiary, but if it is, the name of the parent company usually should be secondary.

§ 300.4 Selecting organizational boundaries.

(a) Each reporting entity must disclose in its entity statement the approach used to establish its organizational boundaries, which should be consistent with the following guidelines:

(1) In general, entities should use financial control as the primary basis for determining their organizational boundaries, with financial control meaning the ability to direct the financial and operating policies of all elements of the entity with a view to gaining economic or other benefits from its activities over a period of many years. This approach should ensure that all sources, including those controlled by subsidiaries, that are wholly or largely owned by the entity are covered by its reports. Sources that are under long-term lease of the entity may, depending on the provisions of such leases, also be considered to be under the entity's financial control. Sources that are temporarily leased or operated by an entity generally would not be considered to be under its financial control.

(2) Entities may establish organizational boundaries using approaches other than financial control, such as equity share or operational control, but must disclose how the use of these other approaches results in organizational boundaries that differ from those resulting from using the financial control approach.

(3) Emissions from facilities or vehicles that are partially-owned or leased may be included at the entity's discretion, provided that the entity has taken reasonable steps to assure that doing so does not result in the double counting of emissions, sequestration or emission reductions. Emissions reductions or sequestration associated with land, facilities or other sources not owned or leased by an entity may not be included in the entity's reports under the program unless the entity has long-term control over the emissions or sequestration of the source and the owner of the source has agreed that the emissions or sequestration may be included in the entity's report.

(4) If the scope of a defined entity extends beyond the United States, the reporting entity should use the same approach to determining its organizational boundaries in the U.S. and outside the U.S.

(b) Each reporting entity must keep separate reports on emissions or emission reductions that occur within its defined boundaries and those that occur outside its defined boundaries. Entities must also keep separate reports on emissions and emission reductions that occur outside the United States and those that occur within the United States.

(c) An entity that intends to register its entity-wide emissions reductions must document and maintain its organizational boundary for accounting and reporting purposes.

§ 300.5 Submission of an entity statement.

(a) Determining the type of reporting entity. The entity statement requirements vary by type of reporting entity. For the purposes of these guidelines, there are three types of entities:

(1) Large emitters that intend to register emission reductions;

(2) Small emitters that intend to register emission reductions; and

(3) Emitters that intend to report, but not register emission reductions.

(b) Choosing a start year. The first entity statement describes the make-up, operations and boundaries of the entity, as they existed in the start year.

(1) For all entities, it is the year immediately preceding the first year for which the entity intends to register emission reductions and the last year of the initial base period(s).

(2) For entities intending to register emission reductions, the start year may be no earlier than 2002, unless the entity has made a commitment to reduce its entity-wide emissions under the Climate Leaders or Climate VISION program. An entity that has made such a commitment may establish a start year derived from the base period of the commitment, as long as it is no earlier than 2000.

(i) For a large emitter, the start year is the first year for which the entity submits a complete emissions inventory under the 1605(b) program.

(ii) The entity's emissions in its start year or its average annual emissions over a period of up to four years ending in the start year determine whether it qualifies to begin reporting as a small emitter.

(3) For entities not intending to register reductions, the start year may be no earlier than 1990.

(c) Determining and maintaining large or small emitter reporting status. (1) Any entity that intends to register emission reductions can choose to participate as a large emitter, but only an entity that has demonstrated that its annual emissions are less than or equal to 10,000 metric tons of CO2 equivalent may participate as a small emitter. To demonstrate that its annual emissions are less than or equal to 10,000 metric tons of CO2 equivalent, an entity must submit either an estimate of its emissions during its chosen start year or an estimate of its average annual emissions over a continuous period not to exceed four years of time ending in its chosen start year, as long as the operations and boundaries of the entity have not changed significantly during that period.

(2) An entity must estimate its total emissions using methods specified in Chapter 1 of the Technical Guidelines (incorporated by reference, see § 300.13) or by using the Simplified Emission Inventory Tool (SEIT) provided by EIA and also discussed in Chapter 1. The results of this estimate must be reported to EIA. [Note: emission estimates developed using SEIT may not be used to prepare, in whole or part, entity-wide emission inventories required for the registration of reductions.]

(3) After starting to report, each small emitter must annually certify that the emissions-related operations and boundaries of the entity have not changed significantly since the previous report. A new estimate of total emissions must be submitted after any significant increase in emissions, any change in the operations or boundaries of the small emitter, or every five years, whichever occurs first. Small emitters with estimated annual emissions of over 9,000 metric tons of CO2 equivalent should re-estimate and submit their emissions annually. If an entity determines that it must report as a large emitter, then it must continue to report as a large emitter in all future years in order to ensure a consistent time series of reports. Once a small emitter becomes a large emitter, it must begin reporting in conformity with the reporting requirements for large emitters.

(d) Entity statements for large emitters intending to register reductions. When a large emitter intending to register emission reductions first reports under these guidelines, it must provide the following information in its entity statement:

(1) The name to be used to identify the participating entity;

(2) The legal basis of the named entity;

(3) The criteria used to determine:

(i) The organizational boundaries of the entity, if other than financial control; and

(ii) The sources of emissions included or excluded from the entity's reports, such as sources excluded as de minimis emissions;

(4) The names of any parent or holding companies the activities of which will not be covered comprehensively by the entity's reports;

(5) The names of any large subsidiaries or organizational units covered comprehensively by the entity's reports. All subsidiaries of the entity must be covered by the entity's reports, but only large subsidiaries must be specifically identified in the entity statement;

(6) A list of each country where operations occur, if the entity is including any non-U.S. operations in its report;

(7) A description of the entity and its primary U.S. economic activities, such as electricity generation, product manufacturing, service provider or freight transport; for each country listed under paragraph (d)(6) of this section, the large emitter should describe the economic activity in that country.

(8) A description of the types of emission sources or sinks to be covered in the entity's emission inventories, such as fossil fuel power plants, manufacturing facilities, commercial office buildings or heavy-duty vehicles;

(9) The names of other entities that substantially share the ownership or operational control of sources that represent a significant part of the reporting entity's emission inventories, and a certification that, to the best of the certifier's knowledge, the direct greenhouse gas emissions and sequestration in the entity's report are not included in reports filed by any of these other entities to the 1605(b) program; and

(10) Identification of the start year.

(e) Entity statements for small emitters intending to register reductions. When a small emitter intending to register emission reductions first reports under these guidelines, it must provide the following information in its entity statement:

(1) The name to be used to identify the participating entity;

(2) The legal basis of the named entity;

(3) An identification of the entity's control over the activities covered by the entity's reports, if other than financial control;

(4) The names of any parent or holding companies the activities of which will not be covered comprehensively by the entity's reports;

(5) An identification or description of the primary economic activities of the entity, such as agricultural production, forest management or household operation; if any of the economic activities covered by the entity's reports occur outside the U.S., a listing of each country in which such activities occur;

(6) An identification or description of the specific activity (or activities) and the emissions, avoided emissions or sequestration covered by the entity's report, such as landfill gas recovery or forest sequestration;

(7) A certification that, to the best of the certifier's knowledge, the direct greenhouse gas emissions and sequestration in the entity's report are not included in reports filed by any other entities reporting to the 1605(b) program; and

(8) Identification of the start year.

(f) Entity statements for reporting entities not registering reductions. When a participant not intending to register emission reductions first reports under this part, it must, at a minimum, provide the following information in its entity statement:

(1) The name to be used to identify the reporting entity;

(2) The legal basis of the entity;

(3) An identification of the entity's control over the activities covered by the entity's reports, if other than financial control;

(4) A description of the entity and its primary economic activities, such as electricity generation, product manufacturing, service provider, freight transport, agricultural production, forest management or household operation; if any of the economic activities covered by the entity's reports occur outside the United States, a listing of each country in which such activities occur; and

(5) A description of the types of emission sources or sinks, such as fossil fuel power plants, manufacturing facilities, commercial office buildings or heavy-duty vehicles, covered in the entity's reports of emissions or emission reductions.

(g) Changing entity statements. (1) Reporting entities are required to annually review and, if necessary, update their entity statements.

(2) From time to time, a reporting entity may choose to change the scope of activities included within the entity's reports or the level at which the entity wishes to report. A reporting entity may also choose to change its organizational boundaries, its base period, or other elements of its entity statement. For example, companies buy and sell business units, or equity share arrangements may change. In general, DOE encourages changes in the scope of reporting that expand the coverage of an entity's report and discourages changes that reduce the coverage of such reports unless they are caused by divestitures or plant closures. Any such changes should be reported in amendments to the entity statement, and major changes may warrant or require changes in the base values used to calculate emission reductions and, in some cases, the entity's base periods. Changes in the scope of reporting made on or before May 31 of a given calendar year must be reflected in the report submitted covering emissions and reductions for the following calendar year. Reporting entities may choose to postpone incorporating changes in the scope of reporting made after May 31 until submitting the report covering emissions and reductions for the year after the following calendar year. However, in no case should there be an interruption in the annual reports of entities registering emission reductions. Chapter 2 of the Technical Guidelines (incorporated by reference, see § 300.13) provides more specific guidance on how such changes should be reflected in entity statements, reports, and emission reduction calculations.

(h) Documenting changes in amended entity statements. A reporting entity's entity statement in subsequent reports should focus primarily on changes since the previous report. Specifically, the subsequent entity statement should report the following information:

(1) For significant changes in the reporting entity's scope or organizational boundaries, the entity should document:

(i) The acquisition or divestiture of discrete business units, subsidiaries, facilities, and plants;

(ii) The closure or opening of significant facilities;

(iii) The transfer of economic activity to or from specific subentities covered by the entity's reports, such as the transfer of operations to non-U.S. subsidiaries;

(iv) Significant changes in land holdings (applies to entities reporting on greenhouse gas emissions or sequestration related to land use, land use change, or forestry);

(v) Whether the reporting entity is reporting at a higher level of aggregation than it did in the previous report, and if so, a listing of the subsidiary entities that are now aggregated under a revised conglomerated entity, including a listing of any non-U.S. operations to be added and the specific countries in which these operations are located; and

(vi) Changes in its activities or operations (e.g., changes in output, contractual arrangements, equipment and processes, outsourcing or insourcing of significant activities) that are likely to have a significant effect on emissions, together with an explanation of how it believes the changes in economic activity influenced its reported emissions or sequestrations.

§ 300.6 Emissions inventories.

(a) General. The objective of an emission inventory is to provide a full accounting of an entity's emissions for a particular year, including direct emissions of the first six categories of gases listed in the definition of “greenhouse gases” in § 300.2, indirect emissions specified in paragraph (e) of this section, and all sequestration or other changes in carbon stocks. An emission inventory must be prepared in accordance with Chapter 1 of the Technical Guidelines (incorporated by reference, see § 300.13). An inventory does not include avoided emissions or any offset reductions, and is not subsequently adjusted to reflect future acquisitions, divestitures or other changes to the reporting entity (although a reporting entity often makes these types of adjustments when calculating emission reductions under the guidelines). Entity-wide inventories are a prerequisite for the registration of emission reductions by entities with average annual emissions of more than 10,000 metric tons of CO2 equivalent. Entities that have average annual emissions of less than or equal to 10,000 metric tons of CO2 equivalent are eligible to register emission reductions associated with specific activities without also reporting an inventory of the total emissions, but such entities should inventory and report the emissions associated with the specific activity(ies) they do cover in their reports.

(b) Quality requirements for emission inventories. The Technical Guidelines (incorporated by reference, see § 300.13) usually identify more than one acceptable method of measuring or estimating greenhouse gas emissions. Each acceptable method is rated A, B, C or D, with A methods usually corresponding to the highest quality method available and D methods representing the lowest quality method that may be used. Each letter is assigned a numerical rating reflecting its relative quality, 4 for A methods, 3 for B methods, 2 for C methods and 1 for D methods. Entities that intend to register emission reductions must use emission inventory methods that result in a quantity-weighted average quality rating of at least 3.0.

(1) Entities may at any time choose to modify the measurement or estimation methods that they use for their current or future year emission inventories. Such modifications would enable entities to gradually improve the quality of the ratings over time, but prior year inventories may be modified only to correct significant errors.

(2) Entities that have had their emission quantities and the quantity-weighted quality rating of their emissions inventory independently verified may report their emissions and average quality ratings by greenhouse gas, indirect emissions and sequestration, rather than by source or sink category.

(3) Entities that certify that they have used only A or B methods, may forego indicating in their reports the quality ratings of the methods used and may forego calculating the quantity-weighted average quality of their emission inventories.

(c) Using estimation methods not included in the Technical Guidelines. An entity may obtain DOE approval for the use of an estimation method not included in the Technical Guidelines (incorporated by reference, see § 300.13) if the method covers sources not described in the Technical Guidelines, or if the method provides more accurate results for the entity's specific circumstances than the methods described in the Technical Guidelines. If an entity wishes to propose the use of a method that is not described in the Technical Guidelines, the entity must provide a written description of the method, an explanation of how the method is implemented (including data requirements), empirical evidence of the method's validity and accuracy, and a suggested rating for the method to DOE's Office of Policy and International Affairs (with a copy to EIA). DOE reserves the right to deny the request, or to assign its own rating to the method. By submitting this information, the entity grants permission to DOE to incorporate the method in a future revision of the Technical Guidelines.

(d) Direct emissions inventories. Direct greenhouse gas emissions that must be reported are the emissions resulting from stationary or mobile sources within the organizational boundaries of an entity, including but not limited to emissions resulting from combustion of fossil fuels, process emissions, and fugitive emissions. Process emissions (e.g., PFC emissions from aluminum production) must be reported along with fugitive emissions (e.g., leakage of greenhouse gases from equipment).

(e) Inventories of indirect emissions associated with purchased energy. (1) To provide a clear incentive for the users of electricity and other forms of purchased energy to reduce demand, an entity must include the indirect emissions from the consumption of purchased electricity, steam, and hot or chilled water in the entity's inventory as indirect emissions. To avoid double counting among entities, the entity must report all indirect emissions separately from its direct emissions. Entities should use the methods for quantifying indirect emissions specified in the Technical Guidelines (incorporated by reference, see § 300.13).

(2) Entities may choose to report other forms of indirect emissions, such as emissions associated with employee commuting, materials consumed or products produced, although such other indirect emissions may not be included in the entity's emission inventory and may not be the basis for registered emission reductions. All such reports of other forms of indirect emissions must be distinct from reports of indirect emissions associated with purchased energy and must be based on emission measurement or estimation methods identified in the Technical Guidelines (incorporated by reference, see § 300.13) or approved by DOE.

(f) Entity-level inventories of changes in terrestrial carbon stocks. Annual changes in managed terrestrial carbon stocks should be comprehensively assessed and reported across the entity, and the net emissions resulting from such changes included in the entity's emissions inventory. Entities should use the methods for estimating changes in managed terrestrial carbon stocks specified in the Technical Guidelines (incorporated by reference, see § 300.13).

(g) Treatment of de minimis emissions and sequestration. (1) Although the goal of the entity-wide reporting requirement is to provide an accurate and comprehensive estimate of total emissions, there may be small emissions from certain sources that are unduly costly or otherwise difficult to measure or reliably estimate annually. An entity may exclude particular sources of emissions or sequestration if the total quantities excluded represent less than or equal to 3 percent of the total annual CO2 equivalent emissions of the entity. The entity must identify the types of emissions excluded and provide an estimate of the annual quantity of such emissions using methods specified in the Technical Guidelines (incorporated by reference, see § 300.13) or by using the Simplified Emissions Inventory Tool (SEIT). The results of this estimate of the entity's total excluded annual emissions must be reported to DOE together with the entity's initial entity statement.

(2) After starting to report, each reporting entity that excludes from its annual reports any de minimis emissions must re-estimate the quantity of excluded emissions after any significant increase in such emissions, or every five years, whichever occurs sooner.

(h) Separate reporting of domestic and international emissions. Non-U.S. emissions included in an entity's emission inventory must be separately reported and clearly distinguished from emissions originating in the U.S. Entities must identify any country-specific factors used in the preparation of such reports.

(i) Covered gases. Entity-wide emissions inventories must include the emissions of the first six categories of named gases listed in the definition of “greenhouse gases” in § 300.2. Entities may report chlorofluorocarbons and other greenhouse gases with quantifiable climate forcing effects as long as DOE has established a method for doing so, but such gases must be reported separately and emission reductions, if any, associated with such other gases are not eligible for registration.

(j) Units for reporting. Emissions and sequestration should be reported in terms of the mass (not volume) of each gas, using metric units (e.g., metric tons of methane). Entity-wide and subentity summations of emissions and reductions from multiple sources must be converted into CO2 equivalent units using the global warming potentials for each gas in the International Panel on Climate Change's Third Assessment (or most recent) Report, as specified in the Technical Guidelines (incorporated by reference, see § 300.13). Entities should specify the units used (e.g., kilograms, or metric tons). Entities may need to use the standard conversion factors specified in the Technical Guidelines to convert existing data into the common units required in the entity-level report. Emissions from the consumption of purchased electricity must be calculated by region (from the list provided by DOE in the Technical Guidelines) or country, if outside the United States. Consumption of purchased steam or chilled/hot water must be reported according to the type of system and fuel used to generate it (from the list provided by DOE in the Technical Guidelines). Entities must convert purchased energy to CO2 equivalents using the conversion factors in the Technical Guidelines. Entities should also provide the physical quantities of each type of purchased energy covered by their reports.

§ 300.7 Net emission reductions.

(a) Entities that intend to register emission reductions achieved must comply with the requirements of this section. Entities may voluntarily follow these procedures if they want to demonstrate the achievement of net, entity-wide reductions for years prior to the earliest year permitted for registration. Only large emitters must follow the requirements of paragraph (b) of this section, but small emitters may do so voluntarily. Only entities that qualify as small emitters may use the special procedures in paragraph (c) of this section. Entities seeking to register emission reductions achieved by other entities (offsets) must certify that these emission reductions were calculated in a manner consistent with the requirements of paragraph (d) of this section and use the emission reduction calculation methods identified in § 300.8. All entities seeking to register emission reductions must comply with the requirements of paragraph (e) of this section. Only reductions in the emissions of the first six categories of gases listed in the definition of “greenhouse gases” in § 300.2 are eligible for registration.

(b) Assessing net emission reductions for large emitters. (1) Entity-wide reporting is a prerequisite for registering emission reductions by entities with average annual emissions of more than 10,000 metric tons of CO2 equivalent. Net annual entity-wide emission reductions must be based, to the maximum extent practicable, on a full assessment and sum total of all changes in an entity's emissions, eligible avoided emissions and sequestration relative to the entity's established base period(s). This assessment must include all entity emissions, including the emissions associated with any non-U.S. operations covered by the entity statement, although the reductions achieved by non-U.S. operations must be separately totaled prior to being integrated with the net emission reductions achieved by U.S. operations. It must include the annual changes in the total emissions of the entity, including the total emissions of each of the subentities identified in its entity statement. All changes in emissions, avoided emissions, and sequestration must be determined using methods that are consistent with the guidelines described in § 300.8 of this part.

(2) If it is not practicable to assess the changes in net emissions resulting from certain entity activities using at least one of the methods described in § 300.8 of this part, the entity may exclude them from its estimate of net emission reductions. The entity must identify as one or more distinct subentities the sources of emissions excluded for this reason and describe the reasons why it was not practicable to assess the changes that had occurred. DOE believes that few emission sources will be excluded for this reason, but has identified at least two situations where such an exclusion would be warranted. For example, it is likely to be impossible to assess the emission changes associated with a new manufacturing plant that produces a product for which the entity has no historical record of emissions or emissions intensity (emissions per unit of product output). However, once the new plant has been operational for at least a full year, a base period and base value(s) for the new plant could be established and its emission changes assessed in the following year. Until the emission changes of this new subentity can be assessed, it should be identified in the entity's report as a subentity for which no assessment of emission changes is practicable. The other example involves a subentity that has reduced its output below the levels of its base period. In such a case, the subentity could not use the absolute emissions method and may also be unable to identify an effective intensity metric or other method.

(3) In calculating its net annual emission reductions, an entity should exclude any emissions or sequestration that have been excluded from the entity's inventory. The entity should also exclude all de minimis and biogenic emissions that are excluded from the entity's inventory of greenhouse gas emissions from its assessments of emission changes.

(c) Assessing emission reductions for entities with small emissions. (1) Entities with average annual emissions of less than or equal to 10,000 metric tons of CO2 equivalent are not required to inventory their total emissions or assess all changes in their emissions, eligible avoided emissions and sequestration to qualify for registered reductions. These entities may register emission reductions that have occurred since 2002 and that are associated with one or more specific activities, as long as they:

(i) Perform a complete assessment of the annual emissions and sequestration associated with each of the activities upon which they report, using methods that meet the same quality requirements applicable to entity-wide emission inventories; and

(ii) Determine the changes in the emissions, eligible avoided emissions or sequestration associated with each of these activities.

(2) An entity reporting as a small emitter must report on one or more specific activities and is encouraged, but not required to report on all activities occurring within the entity boundary. Examples of small emitter activities include: vehicle operations; product manufacturing processes; building operations or a distinct part thereof, such as lighting; livestock operations; crop management; and power generation. For example, a farmer managing several woodlots and also producing a wheat crop may report emission reductions associated with managing an individual woodlot. However, the farmer must also assess and report the net sequestration resulting from managing all the woodlots within the entity's boundary. The small emitter is not required to report on emissions or reductions associated with growing the wheat crop.

(3) A small emitter must certify that the reductions reported were not caused by actions likely to cause increases in emissions elsewhere within the entity's operations. This certification should be based on an assessment of the likely direct and indirect effects of the actions taken to reduce greenhouse gas emissions.

(d) Net emission reductions achieved by other entities (offset reductions or emission reductions submitted by aggregators). A reporting entity or aggregator under certain conditions may report or register all or some of the net emission reductions achieved by entities that choose not to report under the section 1605(b) program. In all cases, an agreement must exist between the reporting entity or aggregator and the other entity that specifies the quantity of the emission reductions (or increases) achieved by the other entity that may be reported or registered as an offset reduction by the reporting entity or aggregator. A large emitter that is reporting on behalf of other entities must meet all of the requirements applicable to large emitters, including submission of an entity statement, an emissions inventory, and an entity-wide assessment of emission reductions. If an aggregator is a small emitter, it may choose to report only on the activities, emissions and emission reductions of the entities on behalf of which it is reporting and not to report on any of its own activities or emission reductions. The reporting entity or aggregator must include in its report all of the information on the other entity, including an entity statement, an emissions inventory (when required), and an assessment of emission reductions that would be required if the other entity were directly reporting to EIA. The net emissions reductions (or increases) of each other entity will be evaluated separately by EIA to determine whether they are eligible for registration in accordance with the guidelines of this part. Those registered reductions (or increases) assigned by the other entity, by agreement, to a reporting entity or aggregator will be included in EIA's summary of all registered offset reductions for that entity or aggregator. If the agreement between the reporting entity and other entity is discontinued, for any reason, the reporting entity must inform EIA and must identify any emission reductions previously reported that could be attributable to an increase in the carbon stocks of the other entity. Such reductions will be removed by EIA from the records of the reporting entity's offset reductions.

(e) Net emission reductions to be reported by other entities as offset reductions. Entities must identify in their report the quantity of any net emission reductions covered by the report, if any, that another entity will report as an offset reduction, including the name of the other entity;

(f) Adjusting for year-to-year increases in net emissions. (1) Normally, net annual emission reductions for an entity are calculated by summing the net annual changes in emissions, eligible avoided emissions and sequestration, as determined using the calculation methods identified in § 300.8 and according to the procedures described in paragraph (b) of this section for large emitters, paragraph (c) for small emitters of this section for small emitters, and paragraph (d) of this section for offsets. However, if the entity experienced a net increase in emissions for one or more years, these increases must be reported and taken into account in calculating any future year reductions. If the entity subsequently achieves net annual emission reductions, the net increases experienced in the preceding year(s) must be more than offset by these reductions before the entity can once again register emission reductions. For example, if an entity achieved a net emission reduction of 5,000 metric tons of CO2 equivalent in its first year, a net increase of 2,000 metric tons in its second year, and a net reduction of 3,000 metric tons in its third year, it would be able to register a 5,000 metric ton reduction in its first year, no reduction in its second year, and a 1,000 metric ton reduction in its third year (3,000-2,000). The entity must file full reports for each of these three years. Its report for the second year would indicate the net increase in emissions and this increase would be noted in EIA's summary of the entity's report for that year and for any future year, until the emissions increase was entirely offset by subsequent emission reductions. If this same entity achieved a net reduction of only 1,000 metric tons in its third year, it would not be able to register additional reductions until it had, in some future year, offset more than its second year increase of 2,000 metric tons.

(2) [Reserved]

§ 300.8 Calculating emission reductions.

(a) Choosing appropriate emission reduction calculation methods. (1) An entity must choose the method or methods it will use to calculate emission reductions from the list provided in paragraph (h) of this section. Each of the calculation methods has special characteristics that make it applicable to only certain types of emissions and activities. An entity should select the appropriate calculation method based on several factors, including:

(i) How the entity's subentities are defined;

(ii) How the reporter will gather and report emissions data; and

(iii) The availability of other types of data that might be needed, such as production or output data.

(2) For some entities, a single calculation method will be sufficient, but many entities may need to apply more than one method because discrete components of the entity require different calculation methods. In such a case, the entity will need to select a method for each subentity (or discrete component of the entity with identifiable emission or reductions). The emissions and output measure (generally a physical measure) of each subentity must be clearly distinguished and reported separately. Guidance on the selection and specification of calculation methods is provided in Chapter 2 of the Technical Guidelines (incorporated by reference, see § 300.13).

(b) Identifying subentities for calculating reductions. If more than one calculation method is to be used, an entity must specify the portion of the entity (the subentity) to which each method will be applied. Each subentity must be clearly identified. From time to time, it may be necessary to modify existing or create new subentities. The entity must provide to EIA a full description of such changes, together with an explanation of why they were required.

(c) Choosing a base period for calculating reductions. In general, the base period used in calculating emission reductions is the single year or up to four-year period average immediately preceding the first year of calculated emission reductions.

(d) Establishing base values. To calculate emission reductions, an entity must establish a base value against which to compare reporting year performance. The minimum requirements for base values for each type of calculation method are specified in Chapter 2 of the Technical Guidelines (incorporated by reference, see § 300.13). In most cases, an historic base value, derived from emissions or other data gathered during the base period, is the minimum requirement specified. Entities may, however, choose to establish base values that are more stringent than the base values derived from the methods specified in Chapter 2 of the Technical Guidelines as long as their report indicates the rationale for the alternative base value and demonstrates that it would result in a smaller quantity of emission reductions.

(e) Emission reduction and subentity statements. For each subentity, an entity must submit to EIA the following information:

(1) An identification and description of the method used to calculate emission reductions, including:

(i) The type of calculation method;

(ii) The measure of output used (if any); and

(iii) The method-specific base period for which any required base value will be calculated.

(2) The base period used in calculating reductions. When an entity starts to report, the base period used in calculating reductions must end in the start year. However, over time the reporting entity may find it necessary to revise or establish new base periods and base values in response to significant changes in processes or output of the subentity.

(3) A description of the subentity and its primary economic activity or activities, such as electricity generation, product manufacturing, service provider, freight transport, or household operation; and

(4) A description of the emission sources or sinks covered, such as fossil fuel power plants, manufacturing facilities, commercial office buildings or heavy-duty vehicles.

(f) Changes in calculation methods, base periods and base values. When significant changes occur in the composition or output of reporting entities, a reporting entity may need to change previously specified calculation methods, base periods or base values. A reporting entity should make such changes only if necessary and it should fully document the reasons for any changes. The Technical Guidelines (incorporated by reference, see § 300.13) describe when such changes should be made and what information on such changes must be provided to DOE. In general, such changes should not result in any alterations to previously reported or registered emission reductions. A reporting entity may alter previously reported or registered emission reductions only if necessary to correct significant errors.

(g) Continuous reporting. To ensure that the summation of entity annual reports accurately represents net, multi-year emission reductions, an entity must submit a report every year, beginning with the first reduction year. An entity may use a specific base period to determine emission reductions in a given future year only if the entity has submitted qualified reports for each intervening year. If an interruption occurs in the annual reports of an entity, the entity must subsequently report on all missing years prior to qualifying for the registration of additional emission reductions.

(h) Calculation methods. An entity must calculate any change in emissions, avoided emissions or sequestration using one or more of the methods described in this paragraph and in the Technical Guidelines (incorporated by reference, see § 300.13).

(1) Changes in emissions intensity. An entity may use emissions intensity as a basis for determining emission reductions as long as the entity selects a measure of output that is:

(i) A reasonable indicator of the output produced by the entity;

(ii) A reliable indicator of changes in the entity's activities;

(iii) Related to emissions levels; and

(iv) Any appropriate adjustments for acquisitions, divestitures, insourcing, outsourcing, or changes in products have been made, as described in the Technical Guidelines (incorporated by reference, see § 300.13).

(2) Changes in absolute emissions. An entity may use changes in the absolute (actual) emissions (direct and/or indirect) as a basis for determining net emission reductions as long as the entity makes only those adjustments required by the Technical Guidelines (incorporated by reference, see § 300.13). An entity intending to register emission reductions may use this method only if the entity demonstrates in its report that any reductions derived from such changes were not achieved as a result of reductions in the output of the entity, and certifies that emission reductions are not the result of major shifts in the types of products or services produced. Entities may report, but not register, such reductions even if the output associated with such emissions is declining.

(3) Changes in carbon storage (for actions within entity boundaries). An entity may use changes in carbon storage as a basis for determining net emission reductions as long as the entity uses estimation and measurement methods that comply with the Technical Guidelines (incorporated by reference, see § 300.13), and has included an assessment of the net changes in all sinks in its inventory.

(4) Changes in avoided emissions (for actions within entity boundaries). An entity may use changes in avoided emissions to determine its emission reductions. Avoided emissions eligible to be included in the calculation of net emission reductions that qualify for registration include those associated with the sale of electricity, steam, hot water or chilled water generated from non-emitting or low-emitting sources as a basis for determining net emission reductions as long as:

(i) The measurement and calculation methods used comply with the Technical Guidelines (incorporated by reference, see § 300.13);

(ii) The entity certifies that any increased sales were not attributable to the acquisition of a generating facility that had been previously operated, unless the entity's base period includes generation values from the acquired facility's operation prior to its acquisition; and

(iii) Generators of distributed energy that have net emissions in their base period and intend to report reductions resulting from changes in eligible avoided emissions, use a method specified in the Technical Guidelines (incorporated by reference, see § 300.13) that integrates the calculation of reductions resulting from both changes in emissions intensity and changes in avoided emissions.

(5) Action-specific emission reductions (for actions within entity boundaries). A number of source- or situation-specific methods are provided in the Technical Guidelines and these methods must be used to assess the annual changes in emissions for the specific sources or situation addressed by these methods. In addition, a generic action-specific method is identified in the Technical Guidelines. An entity intending to register reductions may use the generic action-specific approach only if it is not possible to measure accurately emission changes by using one of the methods identified in paragraphs (h)(1) through (h)(4) of this section. Entities that intend to register reductions and that use the generic action-specific approach must explain why it is not possible to use any of these other methods. An entity not intending to register reductions may use the generic action-specific method to determine emission reductions, as long as the entity demonstrates that the estimate is based on analysis that:

(i) Uses output, utilization and other factors that are consistent, to the maximum extent practicable, with the action's actual performance in the year for which reductions are being reported;

(ii) Excludes any emission reductions that might have resulted from reduced output or were caused by actions likely to be associated with increases in emissions elsewhere within the entity's operations; and

(iii) Uses methods that are in compliance with the Technical Guidelines (incorporated by reference, see § 300.13).

(i) Summary description of actions taken to reduce emissions. Each reported emission reduction must be accompanied by an identification of the types of actions that were the likely cause of the reductions achieved. Entities are also encouraged to include in their reports information on the benefits and costs of the actions taken to reduce greenhouse gas emissions, such as the expected rates of return, life cycle costs or benefit to cost ratios, using appropriate discount rates.

(j) Emission reductions associated with plant closings, voluntary actions and government (including non-U.S. regulatory regimes) requirements. (1) Each report of emission reductions must indicate whether the reported emission reductions were the result, in whole or in part, of plant closings, voluntary actions, or government requirements. EIA will presume that reductions that were not the result of plant closings or government requirements are the result of voluntary actions.

(2) If emission reductions were, in whole or in part, the direct result of plant closings that caused a decline in output, the report must identify the reductions as such; these reductions do not qualify for registration. EIA will presume that reductions calculated using the emissions intensity method do not result from a decline in output.

(3) If the reductions were associated, in whole or part, with U.S. or non-U.S. government requirements, the report should identify the government requirement involved and the effect these requirements had on the reported emission reductions. If, as a result of the reduction, a non-U.S. government issued to the reporting entity a credit or other financial benefit or regulatory relief, the report should identify the government requirement involved and describe the specific form of benefit or relief provided.

(k) Determining the entity responsible for emission reductions. The entity that EIA will presume to be responsible for emission reduction, avoided emission or sequestered carbon is the entity with financial control of the facility, land or vehicle which generated the reported emissions, generated the energy that was sold so as to avoid other emissions, or was the place where the sequestration action occurred. If control is shared, reporting of the associated emission reductions should be determined by agreement between the entities involved so as to avoid double-counting; this agreement must be reflected in the entity statement and in any report of emission reductions. EIA will presume that an entity is not responsible for any emission reductions associated with a facility, property or vehicle excluded from its entity statement.

§ 300.9 Reporting and recordkeeping requirements.

(a) Starting to report under the guidelines. An entity may report emissions and sequestration on an annual basis beginning in any year, but no earlier than the base period of 1987-1990 specified in the Energy Policy Act of 1992. To be recognized under these guidelines, all reports must conform to the measurement methods established by the Technical Guidelines (incorporated by reference, see § 300.13).

(b) Revisions to reports submitted under the guidelines. (1) Once EIA has accepted a report under this part, it may be revised by the reporting entity only under the circumstances specified in this paragraph and related provisions of the Technical Guidelines (incorporated by reference, see § 300.13). In general:

(i) Revised reports may be submitted to correct errors that have a significant effect on previously estimated emissions or emission reductions; and

(ii) Emission inventories may be revised in order to create a consistent time series based on improvements in the emission estimation or measurement techniques used.

(2) Reporting entities must provide the corrected or improved data to EIA, together with an explanation of the significance of the change and its justification.

(3) If a change in calculation methods (for inventories or reductions) is made for a particular year, the reporting entity must, if feasible, revise its base value to assure methodological consistency with the reporting year value.

(c) Definition and deadline for annual reports. Entities must report emissions on a calendar year basis, from January 1 to December 31. To be included in the earliest possible EIA annual report of greenhouse gas emissions reported under this part, entity reports that have not been independently verified must be submitted to DOE no later than July 1 for emissions occurring during the previous calendar year. Reports that have been independently verified must be submitted by September 1 for emissions occurring during the previous year.

(d) Recordkeeping. Entities intending to register reductions must maintain adequate supporting records of base period data for the duration of their participation in the 1605(b) program. Supporting records for all reporting year data must be maintained for at least three years subsequent to the relevant reporting year to enable verification of all information reported. The records should document the basis for the entity's report to EIA, including:

(1) The content of entity statements, including the identification of the specific facilities, buildings, land holding and other operations or emission sources covered by the entity's reports and the legal, equity, operational and other bases for their inclusion;

(2) Information on the identification and assessment of changes in entity boundaries, processes or products that might have to be reported to EIA;

(3) Any agreements or relevant communications with other entities or third parties regarding the reporting of emissions or emission reductions associated with sources the ownership or operational control of which is shared;

(4) Information on the methods used to measure or estimate emissions, and the data collection and management systems used to gather and prepare this data for inclusion in reports;

(5) Information on the methods used to calculate emission reductions, including the basis for:

(i) The selection of the specific output measures used, and the data collection and management systems used to gather and prepare output data for use in the calculation of emission reductions;

(ii) The selection and modification of all base years, base periods and baselines used in the calculation of emission reductions;

(iii) Any baseline adjustments made to reflect acquisitions, divestitures or other changes;

(iv) Any models or other estimation methods used; and

(v) Any internal or independent verification procedures undertaken.

(e) Confidentiality. DOE will protect trade secret and commercial or financial information that is privileged or confidential as provided in 5 U.S.C. 552(b)(4). An entity must clearly indicate in its 1605(b) report the information for which it requests confidentiality. DOE will handle requests for confidentiality of information submitted in 1605(b) reports in accordance with the process established in DOE's Freedom of Information regulations at 10 CFR § 1004.11.

§ 300.10 Certification of reports.

(a) General requirement and certifying official: All reports submitted to EIA must include a certification statement, as provided in paragraph (b) of this section, signed by a certifying official of the reporting entity. A household report may be certified by one of its members. All other reports must be certified by the chief executive officer, agency head, or an officer or employee of the entity who is responsible for reporting the entity's compliance with environmental regulations.

(b) Certification statement requirements. All entities, whether reporting or registering reductions, must certify the following:

(1) The information reported is accurate and complete;

(2) The information reported has been compiled in accordance with this part; and

(3) The information reported is consistent with information submitted in prior years, if any, or any inconsistencies with prior year's information are documented and explained in the entity statement.

(c) Additional requirements for registering. The certification statement of an entity registering reductions must also certify that:

(1) The entity took reasonable steps to ensure that direct emissions, emission reductions, and/or sequestration reported are neither double counted nor reported by any other entity. Reasonable steps include telephone, fax, letter, or e-mail communications to ensure that another entity does not intend to report the same emissions, emission reductions, and/or sequestration to DOE. Direct communications of this kind with participants in demand-side management or other programs directed at very small emitters are not required;

(2) Any emission reductions reported or registered by the entity that were achieved by another entity (other than a very small emitter that participated in a demand-side management or other program) are included in the entity's report only if:

(i) The other entity does not intend to report or register theses reductions directly;

(ii) There exists a written agreement with each other entity providing that the reporting entity is the entity entitled to report or register these emission reductions; and

(iii) The information reported on the other entity would meet the requirements of this part if the entity were reporting directly to DOE;

(3) None of the emissions, emission reductions, or sequestration reported were produced by shifting emissions to other entities or to non-reporting parts of the entity;

(4) None of any reported changes in avoided emissions associated with the sale of electricity, steam, hot or chilled water generated from non-emitting or low-emitting sources are attributable to the acquisition of a generating facility that has been previously operated, unless the entity's base period includes generation values from the acquiring facility's operation prior to its acquisition;

(5) The entity maintains records documenting the analysis and calculations underpinning the data reported on this form and records documenting the analysis and calculations underpinning the base values used in calculating annual reductions are maintained in accordance with § 300.9(d) of this part; and

(6) The entity has, or has not, obtained independent verification of the report, as described in § 300.11.

§ 300.11 Independent verification.

(a) General. Entities are encouraged to have their annual reports reviewed by independent and qualified auditors, as described in paragraphs (b), (c), and (f) of this section.

(b) Qualifications of verifiers. (1) DOE envisions that independent verification will be performed by professional verifiers (i.e., individuals or companies that provide verification or “attestation” services). EIA will consider a report to the program to be independently verified if:

(i) The lead individual verifier and other members of the verification team are accredited by one or more independent and nationally-recognized accreditation programs, described in paragraph (c) of this section, for the types of professionals needed to determine compliance with DOE's 1605(b) guidelines;

(ii) The lead verifier has experience managing an auditing or verification process, including the recruitment and allocation of other individual verifiers, and has been empowered to make decisions relevant to the provision of a verification statement; and

(iii) All members of a verification team have education, training and/or professional experience that matches the tasks performed by the individual verifiers, as deemed necessary by the verifier accreditation program.

(2) As further guidance, all members of the verification team should be familiar with:

(i) The subject matter covered by the scope of the verification;

(ii) The requirements of this part;

(iii) Greenhouse gas emission and emission reduction quantification;

(iv) Data and information auditing sampling methods; and

(v) Risk assessment and methodologies and materiality analysis procedures outlined by other domestic and international standards.

(3) An individual verifier should have a professional degree or accreditation in engineering (environmental, industrial, chemical), accounting, economics, or a related field, supplemented by specific training and/or experience in emissions reporting and accounting, and should have his or her qualifications and continuing education periodically reviewed by an accreditation program. The skills required for verification are often cross-disciplinary. For example, an individual verifier reviewing a coal electric utility should be knowledgeable about mass balance calculations, fuel purchasing accounting, flows and stocks of coals, coal-fired boiler operation, and issues of entity definition.

(4) Companies that provide verification services must use professionals that possess the necessary skills and proficiency levels for the types of entities for which they provide verification services. Continuing training may be required to ensure all individuals have up-to-date knowledge regarding the tasks they perform.

(c) Qualifications of organizations accrediting verifiers. Organizations that accredit individual verifiers must be nationally recognized certification programs. They may include, but are not limited to the: American Institute of Certified Public Accountants; American National Standards Institute's Registrar Accreditation Board program for Environmental Management System auditors (ANSI-RAB-EMS); Board of Environmental, Health and Safety Auditor Certification: California Climate Action Registry; Clean Development Mechanism Executive Board; and the United Kingdom Accreditation Scheme.

(d) Scope of verification. (1) As part of any independent verification, qualified verifiers must use their expertise and professional judgment to verify for accuracy, completeness and consistency with DOE's guidelines of:

(i) The content of entity statements, annual reports and the supporting records maintained by the entity;

(ii) The representation in entity statements (or lack thereof) of any significant changes in entity boundaries, products, or processes;

(iii) The procedures and methods used to collect emissions and output data, and calculate emission reductions (for entities with widely dispersed operations, this process should include on-site reviews of a sample of the facilities);

(iv) Relevant personnel training and management systems; and

(v) Relevant quality assurance/quality control procedures.

(2) DOE expects qualified verifiers to refer to the growing body of literature on methods of evaluating the elements listed in paragraph (d)(1) of this section, such as the California Climate Action Registry Certification Protocol, the Climate Leaders Inventory Management Plan Checklist, and the draft ISO 14064.3 Protocol for Validation, Verification and Certification.

(e) Verification statement. Both the verifier and, if relevant, an officer of the company providing the verification service must sign the verification statement. The verification statement shall attest to the following:

(1) The verifier has examined all components listed in paragraph (d) of this section;

(2) The information reported in the verified entity report and this verification statement is accurate and complete;

(3) The information reported by the entity has been compiled in accordance with this part;

(4) The information reported on the entity report is consistent with information submitted in prior years, if any, or any inconsistencies with prior year's information are documented and explained in the entity statement;

(5) The verifier used due diligence to assure that direct emissions, emission reductions, and/or sequestration reported are not reported by any other entity;

(6) Any emissions, emission reductions, or sequestration that were achieved by a third-party entity are included in this report only if there exists a written agreement with each third party indicating that they have agreed that the reporting entity should be recognized as the entity entitled to report these emissions, emission reductions, or sequestration;

(7) None of the emissions, emission reductions, or sequestration reported was produced by shifting emissions to other entities or to non-reporting parts of the entity;

(8) No reported changes in avoided emissions associated with the sale of electricity, steam, hot or chilled water generated from non-emitting or low-emitting sources are attributable to the acquisition of a generating facility that has been previously operated, unless the base year generation values are derived from records of the facility's operation prior to its acquisition;

(9) The verifying entity has procedures in place for the maintenance of records that are sufficient to document the analysis and calculations underpinning this verification. The verifying entity shall maintain such records related to base period data submitted by the reporting entity for the duration of the reporting entity's participation in the 1605(b) program and records related to all other verified data for a period of no less than three years; and

(10) The independent verifier is not owned in whole or part by the reporting entity, nor provides any ongoing operational or support services to the entity, except services consistent with independent financial accounting or independent certification of compliance with government or private standards.

(f) Qualifying as an independent verifier. An independent verifier may not be owned in whole or part by the reporting entity, nor may it provide any ongoing operational or support services to the entity, except services consistent with independent financial accounting or independent certification of compliance with government or private standards.

§ 300.12 Acceptance of reports and registration of entity emission reductions.

(a) Acceptance of reports. EIA will review all reports to ensure they are consistent with this part and with the Technical Guidelines (incorporated by reference, see § 300.13). EIA will also review all reports for completeness, internal consistency, arithmetic accuracy and plausibility. Subject to the availability of adequate resources, EIA intends to notify entities of the acceptance or rejection of any report within six months of its receipt.

(b) Registration of emission reductions. EIA will review each accepted report to determine if emission reductions were calculated using an acceptable base period (usually ending no earlier than 2002), and to confirm that the report complies with the other provisions of this part. EIA will also review its records to verify that the reporting entity has submitted accepted annual reports for each year between the establishment of its base period and the year covered by the current report. EIA will notify the entity that reductions meeting these requirements have been credited to the entity as “registered reductions” which can be held by the reporting entity for use (including transfer to other entities) in the event a future program that recognizes such reductions is enacted into law.

(c) Rejection of reports. If EIA does not accept a report or if it determines that emission reductions intended for registration do not qualify, EIA will return the report to the sender with an explanation of its inadequacies. The reporting entity may resubmit a modified report for further consideration at any time.

(d) EIA database and summary reports. The Administrator of EIA will establish a publicly accessible database composed of all reports that meet the definitional, measurement, calculation, and certification requirements of these guidelines. EIA will maintain separate subtotals of direct emissions, indirect emissions and carbon fluxes. A portion of the database will provide summary information on the emissions and registered emission reductions of each reporting entity.

§ 300.13 Incorporation by reference.

The Technical Guidelines for the Voluntary Reporting of Greenhouse Gases (1605(b)) Program (January 2007), referred to throughout this part as the “Technical Guidelines,” have been approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain a copy of the Technical Guidelines from the Office of Policy and International Affairs, U.S. Department of Energy, 1000 Independence Ave., SW., Washington, DC 20585, or by visiting the following Web site: http://www.policy.energy.gov/enhancingGHGregistry/technicalguidelines/. The Technical Guidelines also are available for inspection at the National Archives and Record Administration (NARA). For more information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

[71 FR 20805, Apr. 21, 2006, as amended at 72 FR 4413, Jan. 31, 2007]

§ 420.1 Purpose and scope.

It is the purpose of this part to promote the conservation of energy, to reduce the rate of growth of energy demand, and to reduce dependence on imported oil through the development and implementation of a comprehensive State Energy Program and the provision of Federal financial and technical assistance to States in support of such program.

§ 420.2 Definitions.

As used in this part:

Act means title III, part D, as amended, of the Energy Policy and Conservation Act, 42 U.S.C. 6321 et seq.

Alternative transportation fuel means methanol, denatured ethanol, and other alcohols; mixtures containing 85 percent or more by volume of methanol, denatured ethanol, and other alcohols with gasoline or other fuels; natural gas; liquified petroleum gas; hydrogen; coal-derived liquid fuels; fuels (other than alcohol) derived from biological materials (including neat biodiesel); and electricity (including electricity from solar energy).

ASHRAE/IESNA 90.1-1989, as amended means the building design standard published in December 1989 by the American Society of Heating, Refrigerating and Air-Conditioning Engineers, and the Illuminating Engineering Society of North America titled “Energy Efficient Design of New Buildings Except Low-Rise Residential Buildings,” with Addenda 90.1b-1992; Addenda 90.1d-1992; Addenda 90.1e-1992; Addenda 90.1g-1993; and Addenda 90.1i-1993, which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of this incorporation by reference is given in § 420.6(b).

Assistant Secretary means the Assistant Secretary for Energy Efficiency and Renewable Energy or any official to whom the Assistant Secretary's functions may be redelegated by the Secretary.

British thermal unit (Btu) means the quantity of heat necessary to raise the temperature of one pound of water one degree Fahrenheit at 39.2 degrees Fahrenheit and at one atmosphere of pressure.

Building means any structure which includes provision for a heating or cooling system, or both, or for a hot water system.

Carpool means the sharing of a ride by two or more people in an automobile.

Carpool matching and promotion campaign means a campaign to coordinate riders with drivers to form carpools and/or vanpools.

Commercial building means any building other than a residential building, including any building constructed for industrial or public purposes.

Commercially available means available for purchase by the general public or target audience in the State.

Deputy Assistant Secretary means the Deputy Assistant Secretary for Building Technology, State and Community Programs or any official to whom the Deputy Assistant Secretary's functions may be redelegated by the Assistant Secretary.

Director, Office of State and Community Programs means the official responsible for DOE's formula grant programs to States, or any official to whom the Director's functions may be redelegated by the Assistant Secretary.

DOE means the Department of Energy.

Energy audit means any process which identifies and specifies the energy and cost savings which are likely to be realized through the purchase and installation of particular energy efficiency measures or renewable energy measures.

Energy efficiency measure means any capital investment that reduces energy costs in an amount sufficient to recover the total cost of purchasing and installing such measure over an appropriate period of time and maintains or reduces non-renewable energy consumption.

Environmental residual means any pollutant or pollution causing factor which results from any activity.

Exterior envelope physical characteristics means the physical nature of those elements of a building which enclose conditioned spaces through which thermal energy may be transferred to or from the exterior.

Governor means the chief executive officer of a State, the District of Columbia, Puerto Rico, or any territory or possession of the United States, or a person duly designated in writing by the Governor to act upon his or her behalf.

Grantee means the State or other entity named in the notice of grant award as the recipient.

HVAC means heating, ventilating and air-conditioning.

IBR means incorporation by reference.

Industrial facility means any fixed equipment or facility which is used in connection with, or as part of, any process or system for industrial production or output.

Institution of higher education has the same meaning as such term is defined in section 1201(a) of the Higher Education Act of 1965 (20 U.S.C. 1141(a)).

Manufactured home means any dwelling covered by the Federal Manufactured Home Construction and Safety Standards, 24 CFR part 3280.

Metropolitan Planning Organization means that organization required by the Department of Transportation, and designated by the Governor as being responsible for coordination within the State, to carry out transportation planning provisions in a Standard Metropolitan Statistical Area.

Model Energy Code, 1993, including Errata, means the model building code published by the Council of American Building Officials, which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of this incorporation by reference is given in § 420.6(b).

Park-and-ride lot means a parking facility generally located at or near the trip origin of carpools, vanpools and/or mass transit.

Petroleum violation escrow funds. For purposes both of exempting petroleum violation escrow funds from the matching requirements of § 420.12 and of applying the limitations specified under § 420.18(b), this term means any funds distributed to the States by the Department of Energy or any court and identified as Alleged Crude Oil Violation funds, together with any interest earned thereon by the States, but excludes any funds designated as “excess funds” under section 3003(d) of the Petroleum Overcharge Distribution and Restitution Act, subtitle A of title III of the Omnibus Budget Reconciliation Act of 1986, Public Law 99-509, and the funds distributed under the “Warner Amendment,” section 155 of Public Law 97-377.

Plan means a State Energy Program plan including required program activities in accordance with § 420.15 and otherwise meeting the applicable provisions of this part.

Political subdivision means a unit of government within a State, including a county, municipality, city, town, township, parish, village, local public authority, school district, special district, council of governments, or any other regional or intrastate governmental entity or instrumentality of a local government exclusive of institutions of higher learning and hospitals.

Preferential traffic control means any one of a variety of traffic control techniques used to give carpools, vanpools and public transportation vehicles priority treatment over single occupant vehicles other than bicycles and other two-wheeled motorized vehicles.

Program activity means one or more State actions, in a particular area, designed to promote energy efficiency, renewable energy and alternative transportation fuel.

Public building means any building which is open to the public during normal business hours, including:

(1) Any building which provides facilities or shelter for public assembly, or which is used for educational office or institutional purposes;

(2) Any inn, hotel, motel, sports arena, supermarket, transportation terminal, retail store, restaurant, or other commercial establishment which provides services or retail merchandise;

(3) Any general office space and any portion of an industrial facility used primarily as office space;

(4) Any building owned by a State or political subdivision thereof, including libraries, museums, schools, hospitals, auditoriums, sport arenas, and university buildings; and

(5) Any public or private non-profit school or hospital.

Public transportation means any scheduled or nonscheduled transportation service for public use.

Regional Office Director means the director of a DOE Regional Office with responsibility for grants administration or any official to whom that function may be redelegated.

Renewable energy means a non-depletable source of energy.

Renewable energy measure means any capital investment that reduces energy costs in an amount sufficient to recover the total cost of purchasing and installing such measure over an appropriate period of time and that results in the use of renewable energy to replace the use of non-renewable energy.

Residential building means any building which is constructed for residential occupancy.

Secretary mean the Secretary of DOE.

SEP means the State Energy Program under this part.

Small business means a private firm that does not exceed the numerical size standard promulgated by the Small Business Administration under section 3(a) of the Small Business Act (15 U.S.C. 632) for the Standard Industrial Classification (SIC) codes designated by the Secretary of Energy.

Start-up business means a small business which has been in existence for 5 years or less.

State means a State, the District of Columbia, Puerto Rico, or any territory or possession of the United States.

State or local government building means any building owned and primarily occupied by offices or agencies of a State; and any building of a unit of local government or a public care institution which could be covered by part H, title III, of the Energy Policy and Conservation Act, 42 U.S.C. 6372-6372i.

Transit level of service means characteristics of transit service provided which indicate its quantity, geographic area of coverage, frequency and quality (comfort, travel, time, fare and image).

Urban area traffic restriction means a setting aside of certain portions of an urban area as restricted zones where varying degrees of limitation are placed on general traffic usage and/or parking.

Vanpool means a group of riders using a vehicle, with a seating capacity of not less than eight individuals and not more than fifteen individuals, for transportation to and from their residence or other designated locations and their place of employment, provided the vehicle is driven by one of the pool members.

Variable working schedule means a flexible working schedule to facilitate activities such as carpools, vanpools, public transportation usage, and/or telecommuting.

[61 FR 35895, July 8, 1996, as amended at 62 FR 26726, May 14, 1997]

§ 420.3 Administration of financial assistance.

(a) Financial assistance under this part shall comply with applicable laws and regulations including, but without limitation, the requirements of:

(1) Executive Order 12372, Intergovernmental Review of Federal Programs, as implemented by 10 CFR part 1005.

(2) DOE Financial Assistance Rules (10 CFR part 600); and

(3) Other procedures which DOE may from time to time prescribe for the administration of financial assistance under this part.

(b) The budget period(s) covered by the financial assistance provided to a State according to § 420.11(b) or § 420.33 shall be consistent with 10 CFR part 600.

(c) Subawards are authorized under this part and are subject to the requirements of this part and 10 CFR part 600.

§ 420.4 Technical assistance.

At the request of the Governor of any State to DOE and subject to the availability of personnel and funds, DOE will provide information and technical assistance to the State in connection with effectuating the purposes of this part.

§ 420.5 Reports.

(a) Each State receiving financial assistance under this part shall submit to the cognizant Regional Office Director a quarterly program performance report and a quarterly financial status report.

(b) Reports under this section shall contain such information as the Secretary may prescribe in order to monitor effectively the implementation of a State's activities under this part.

(c) The reports shall be submitted within 30 days following the end of each calendar year quarter.

§ 420.6 Reference standards.

(a) The following standards which are not otherwise set forth in this part are incorporated by reference and made a part of this part. The following standards have been approved for incorporation by reference by the Director of the Federal Register in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. A notice of any change in these materials will be published in the Federal Register. The standards incorporated by reference are available for inspection at the National Archives and Records Administration (NARA). For information on the availability of this material at NARA, call 202-741-6030, or go to: http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html.

(b) The following standards are incorporated by reference in this part:

(1) The American Society of Heating, Refrigerating and Air-Conditioning Engineers (ASHRAE), 1791 Tullie Circle, N.E., Atlanta, Georgia 30329, (404) 636-8400/The Illuminating Engineering Society of North America (IESNA), 345 East 47th Street, New York, New York 10017, (212) 705-7913: (i) ASHRAE/IESNA 90.1-1989, entitled “Energy Efficient Design of New Buildings Except Low-Rise Residential Buildings,” with Addenda 90.1b-1992; Addenda 90.1d-1992; Addenda 90.1e-1992; Addenda 90.1g-1993; and Addenda 90.1i-1993, IBR approved for § 420.2 and § 420.15.

(2) The Council of American Building Officials (CABO), 5203 Leesburg Pike, Suite 708, Falls Church, Virginia 22041, (703) 931-4533: (i) The Model Energy Code, 1993, including Errata, IBR approved for § 420.2 and § 420.15.

[61 FR 35895, July 8, 1996, as amended at 69 FR 18803, Apr. 9, 2004]

§ 420.10 Purpose.

This subpart specifies the procedures that apply to the Formula Grant part of the State Energy Program, which allows States to apply for financial assistance to undertake a wide range of required and optional energy-related activities provided for under § 420.15 and § 420.17. Funding for these activities is allocated to the States based on funds available for any fiscal year, as described under § 420.11.

§ 420.11 Allocation of funds among the States.

(a) The cognizant Regional Office Director shall provide financial assistance to each State having an approved annual application from funds available for any fiscal year to develop, modify, or implement a plan.

(b) DOE shall allocate financial assistance to develop, implement or modify plans among the States from funds available for any fiscal year, as follows:

(1) If the available funds equal $25.5 million, such funds shall be allocated to the States according to Table 1 of this section.

(2) The base allocation for each State is listed in Table 1.

Table 1—Base Allocation by State

State/Territory

Alabama | $381,000

Alaska | 180,000

Arizona | 344,000

Arkansas | 307,000

California | 1,602,000

Colorado | 399,000

Connecticut | 397,000

Delaware | 164,000

District of Columbia | 158,000

Florida | 831,000

Georgia | 534,000

Hawaii | 170,000

Idaho | 190,000

Illinois | 1,150,000

Indiana | 631,000

Iowa | 373,000

Kansas | 327,000

Kentucky | 411,000

Louisiana | 446,000

Maine | 231,000

Maryland | 486,000

Massachusetts | 617,000

Michigan | 973,000

Minnesota | 584,000

Mississippi | 279,000

Missouri | 518,000

Montana | 182,000

Nebraska | 246,000

Nevada | 196,000

New Hampshire | 216,000

New Jersey | 783,000

New Mexico | 219,000

New York | 1,633,000

North Carolina | 564,000

North Dakota | 172,000

Ohio | 1,073,000

Oklahoma | 352,000

Oregon | 325,000

Pennsylvania | 1,090,000

Rhode Island | 199,000

South Carolina | 340,000

South Dakota | 168,000

Tennessee | 476,000

Texas | 1,322,000

Utah | 242,000

Vermont | 172,000

Virginia | 571,000

Washington | 438,000

West Virginia | 286,000

Wisconsin | 604,000

Wyoming | 155,000

American Samoa | 115,000

Guam | 120,000

Northern Marianas | 114,000

Puerto Rico | 322,000

U.S. Virgin Islands | 122,000

Total | 25,500,000

(3) If the available funds for any fiscal year are less than $25.5 million, then the base allocation for each State shall be reduced proportionally.

(4) If the available funds exceed $25.5 million, $25.5 million shall be allocated as specified in Table 1 and any in excess of $25.5 million shall be allocated as follows:

(i) One-third of the available funds is divided among the States equally;

(ii) One-third of the available funds is divided on the basis of the population of the participating States as contained in the most recent reliable census data available from the Bureau of the Census, Department of Commerce, for all participating States at the time DOE needs to compute State formula shares; and

(iii) One-third of the available funds is divided on the basis of the energy consumption of the participating States as contained in the most recent State Energy Data Report available from DOE's Energy Information Administration.

(c) The budget period covered by the financial assistance provided to a State according to § 420.11(b) shall be consistent with 10 CFR part 600.

§ 420.12 State matching contribution.

(a) Each State shall provide cash, in kind contributions, or both for SEP activities in an amount totaling not less than 20 percent of the financial assistance allocated to the State under § 420.11(b).

(b) Cash and in-kind contributions used to meet this State matching requirement are subject to the limitations on expenditures described in § 420.18(a), but are not subject to the 20 percent limitation in § 420.18(b).

(c) Nothing in this section shall be read to require a match for petroleum violation escrow funds used under this subpart.

[61 FR 35895, July 8, 1996, as amended at 64 FR 46114, Aug. 24, 1999]

§ 420.13 Annual State applications and amendments to State plans.

(a) To be eligible for financial assistance under this subpart, a State shall submit to the cognizant Regional Office Director an original and two copies of the annual application executed by the Governor, including an amended State plan or any amendments to the State plan needed to reflect changes in the activities the State is planning to undertake for the fiscal year concerned. The date for submission of the annual State application shall be set by DOE.

(b) An application shall include:

(1) A face sheet containing basic identifying information, on Standard Form (SF) 424;

(2) A description of the energy efficiency, renewable energy, and alternative transportation fuel goals to be achieved, including wherever practicable:

(i) An estimate of the energy to be saved by implementation of the State plan;

(ii) Why the goals were selected;

(iii) How the attainment of the goals will be measured by the State; and

(iv) How the program activities included in the State plan represent a strategy to achieve these goals;

(3) With respect to financial assistance under this subpart, a goal, consisting of an improvement of 25 percent or more in the efficiency of use of energy in the State concerned in the calendar year 2012, as compared to the calendar year 1990, and may contain interim goals;

(4) For the budget period for which financial assistance will be provided:

(i) A total program budget with supporting justification, broken out by object category and by source of funding;

(ii) The source and amount of State matching contribution;

(iii) A narrative statement detailing the nature of State plan amendments and of new program activities.

(iv) For each program activity, a budget and listing of milestones; and

(v) An explanation of how the minimum criteria for required program activities prescribed in § 420.15 have been implemented and are being maintained.

(5) If any of the activities being undertaken by the State in its plan have environmental impacts, a detailed description of the increase or decrease in environmental residuals expected from implementation of a plan defined insofar as possible through the use of information to be provided by DOE and an indication of how these environmental factors were considered in the selection of program activities.

(6) If a State is undertaking program activities involving purchase or installation of materials or equipment for weatherization of low-income housing, an explanation of how these activities would supplement and not supplant the existing DOE program under 10 CFR part 440.

(7) A reasonable assurance to DOE that it has established policies and procedures designed to assure that Federal financial assistance under this subpart will be used to supplement, and not to supplant, State and local funds, and to the extent practicable, to increase the amount of such funds that otherwise would be available, in the absence of such Federal financial assistance, for those activities set forth in the State Energy Program plan approved pursuant to this subpart;

(8) An assurance that the State shall comply with all applicable statutes and regulations in effect with respect to the periods for which it receives grant funding; and

(9) For informational purposes only, and not subject to DOE review, an energy emergency plan for an energy supply disruption, as designed by the State consistent with applicable Federal and State law including an implementation strategy or strategies (including regional coordination) for dealing with energy emergencies.

(c) The Governor may request an extension of the annual submission date by submitting a written request to the cognizant Regional Office Director not less than 15 days prior to the annual submission date. The extension shall be granted only if, in the cognizant Regional Office Director's judgment, acceptable and substantial justification is shown, and the extension would further objectives of the Act.

(d) The Secretary, or a designee, shall, at least once every three years from the submission date of each State plan, invite the Governor of the State to review and, if necessary, revise the energy conservation plan of such State. Such reviews should consider the energy conservation plans of other States within the region, and identify opportunities and actions that may be carried out in pursuit of common energy conservation goals.

[61 FR 35895, July 8, 1996, as amended at 62 FR 26727, May 14, 1997; 64 FR 46114, Aug. 24, 1999; 71 FR 57887, Oct. 2, 2006]

§ 420.14 Review and approval of annual State applications and amendments to State plans.

(a) After receipt of an application for financial assistance under this subpart and for approval of an amendment, if any, to a State plan, the cognizant Regional Office Director may request the State to submit within a reasonable period of time any revisions necessary to make the application complete and to bring the application into compliance with the requirements of subparts A and B of this part. The cognizant Regional Office Director shall attempt to resolve any dispute over the application informally and to seek voluntary compliance. If a State fails to submit timely appropriate revisions to complete an application or to bring it into compliance, the cognizant Regional Office Director may reject the application in a written decision, including a statement of reasons, which shall be subject to administrative review under § 420.19 of subparts A and B of this part.

(b) On or before 60 days from the date that a timely filed application is complete, the cognizant Regional Office Director shall—

(1) Approve the application in whole or in part to the extent that—

(i) The application conforms to the requirements of subparts A and B of this part;

(ii) The proposed program activities are consistent with a State's achievement of its energy conservation goals in accordance with § 420.13; and

(iii) The provisions of the application regarding program activities satisfy the minimum requirements prescribed by § 420.15 and § 420.17 as applicable;

(2) Approve the application in whole or in part subject to special conditions designed to ensure compliance with the requirements of subparts A and B of this part; or

(3) Disapprove the application if it does not conform to the requirements of subparts A and B of this part.

[61 FR 35895, July 8, 1996, as amended at 62 FR 26727, May 14, 1997; 64 FR 46114, Aug. 24, 1999]

§ 420.15 Annual State applications and amendments to State plans.

(a) Mandatory lighting efficiency standards for public buildings shall:

(1) Be implemented throughout the State, except that the standards shall be adopted by the State as a model code for those local governments of the State for which the State's constitution reserves the exclusive authority to adopt and implement building standards within their jurisdictions;

(2) Apply to all public buildings (except for public buildings owned or leased by the United States), above a certain size, as determined by the State;

(3) For new public buildings, be no less stringent than the provisions of ASHRAE/IESNA 90.1-1989, and should be updated by enactment of, or support for the enactment into local codes or standards, which, at a minimum, are comparable to provisions of ASHRAE/IESNA 90.1-1989 which is incorporated by reference in accordance with 5 U.S.C. 552 (a) and 1 CFR part 51. The availability of this incorporation by reference is given in § 420.6; and

(4) For existing public buildings, contain the elements deemed appropriate by the State.

(b) Program activities to promote the availability and use of carpools, vanpools, and public transportation shall:

(1) Have at least one of the following actions under implementation in at least one urbanized area with a population of 50,000 or more within the State or in the largest urbanized area within the State if that State does not have an urbanized area with a population of 50,000 or more:

(i) A carpool/vanpool matching and promotion campaign;

(ii) Park-and-ride lots;

(iii) Preferential traffic control for carpoolers and public transportation patrons;

(iv) Preferential parking for carpools and vanpools;

(v) Variable working schedules;

(vi) Improvement in transit level of service for public transportation;

(vii) Exemption of carpools and vanpools from regulated carrier status;

(viii) Parking taxes, parking fee regulations or surcharge on parking costs;

(ix) Full-cost parking fees for State and/or local government employees;

(x) Urban area traffic restrictions;

(xi) Geographical or time restrictions on automobile use; or

(xii) Area or facility tolls; and

(2) Be coordinated with the relevant Metropolitan Planning Organization, unless no Metropolitan Planning Organization exists in the urbanized area, and not be inconsistent with any applicable Federal requirements.

(c) Mandatory standards and policies affecting the procurement practices of the State and its political subdivisions to improve energy efficiency shall—

(1) With respect to all State procurement and with respect to procurement of political subdivisions to the extent determined feasible by the State, be under implementation; and

(2) Contain the elements deemed appropriate by the State to improve energy efficiency through the procurement practices of the State and its political subdivisions.

(d) Mandatory thermal efficiency standards for new and renovated buildings shall—

(1) Be implemented throughout the State, with respect to all buildings (other than buildings owned or leased by the United States, buildings whose peak design rate of energy usage for all purposes is less than one watt (3.4 Btu's per hour) per square foot of floor space for all purposes, or manufactured homes), except that the standards shall be adopted by the State as a model code for those local governments of the State for which the State's law reserves the exclusive authority to adopt and implement building standards within their jurisdictions;

(2) Take into account the exterior envelope physical characteristics, HVAC system selection and configuration, HVAC equipment performance and service water heating design and equipment selection;

(3) For all new commercial and multifamily high-rise buildings, be no less stringent than provisions of sections 7-12 of ASHRAE/IESNA 90.1-1989, and should be updated by enactment of, or support for the enactment into local codes or standards, which, at a minimum, are comparable to provisions of ASHRAE/IESNA 90.1-1989; and

(4) For all new single-family and multifamily low-rise residential buildings, be no less stringent than the Model Energy Code, 1993, and should be updated by enactment of, or support for the enactment into local codes or standards, which, at a minimum, are comparable to the Model Energy Code, 1993, which is incorporated by reference in accordance with 5 U.S.C. 552(a) and 1 CFR part 51. The availability of this incorporation by reference is given in § 420.6;

(5) For renovated buildings:

(i) Apply to those buildings determined by the State to be renovated buildings; and

(ii) Contain the elements deemed appropriate by the State regarding thermal efficiency standards for renovated buildings.

(e) A traffic law or regulation which permits the operator of a motor vehicle to make a turn at a red light after stopping shall:

(1) Be in a State's motor vehicle code and under implementation throughout all political subdivisions of the State;

(2) Permit the operator of a motor vehicle to make a right turn (left turn with respect to the Virgin Islands) at a red traffic light after stopping except where specifically prohibited by a traffic sign for reasons of safety or except where generally prohibited in an urban enclave for reasons of safety; and

(3) Permit the operator of a motor vehicle to make a left turn from a one-way street to a one-way street (right turn with respect to the Virgin Islands) at a red traffic light after stopping except where specifically prohibited by a traffic sign for reasons of safety or except where generally prohibited in an urban enclave for reasons of safety.

(f) Procedures must exist for ensuring effective coordination among various local, State, and Federal energy efficiency, renewable energy and alternative transportation fuel programs within the State, including any program administered within the Office of Building Technology, State and Community Programs of the Department of Energy and the Low Income Home Energy Assistance Program administered by the Department of Health and Human Services.

(g) The mandatory conduct of activities to support transmission and distribution planning, including—

(1) Support for local governments and Indian Tribes;

(2) Feasibility studies for transmission line routes and alternatives;

(3) Preparation of necessary project design and permits; and

(4) Outreach to affected stakeholders.

[61 FR 35895, July 8, 1996, as amended at 62 FR 26727, May 14, 1997; 89 FR 33196, Apr. 29, 2024]

§ 420.16 Extensions for compliance with required program activities.

An extension of time by which a required program activity must be ready for implementation may be granted if DOE determines that the extension is justified. A written request for an extension, with accompanying justification and an action plan acceptable to DOE for achieving compliance in the shortest reasonable time, shall be made to the cognizant Regional Office Director. Any extension shall be only for the shortest reasonable time that DOE determines necessary to achieve compliance. The action plan shall contain a schedule for full compliance and shall identify and make the most reasonable commitment possible to provision of the resources necessary for achieving the scheduled compliance.

§ 420.17 Optional elements of State Energy Program plans.

(a) Other appropriate activities or programs may be included in the State plan. These activities may include, but are not limited to, the following:

(1) Program activities of public education to promote energy efficiency, renewable energy, and alternative transportation fuels;

(2) Program activities to increase transportation energy efficiency, including programs to accelerate the use of alternative transportation fuels for government vehicles, fleet vehicles, taxis, mass transit, and privately owned vehicles;

(3) Program activities for financing energy efficiency measures and renewable energy measures—

(i) Which may include loan programs and performance contracting programs for leveraging of additional public and private sector funds and program activities which allow rebates, grants, or other incentives for the purchase of energy efficiency measures and renewable energy measures; or

(ii) In addition to or in lieu of program activities described in paragraph (a)(3)(i) of this section, which may be used in connection with public or nonprofit buildings owned and operated by a State, a political subdivision of a State or an agency or instrumentality of a State, or an organization exempt from taxation under section 501(c)(3) of the Internal Revenue Code of 1986 including public and private non-profit schools and hospitals, and local government buildings;

(4) Program activities for encouraging and for carrying out energy audits with respect to buildings and industrial facilities (including industrial processes) within the State;

(5) Program activities to promote the adoption of integrated energy plans which provide for:

(i) Periodic evaluation of a State's energy needs, available energy resources (including greater energy efficiency), and energy costs; and

(ii) Utilization of adequate and reliable energy supplies, including greater energy efficiency, that meet applicable safety, environmental, and policy requirements at the lowest cost;

(6) Program activities to promote energy efficiency in residential housing, such as:

(i) Program activities for development and promotion of energy efficiency rating systems for newly constructed housing and existing housing so that consumers can compare the energy efficiency of different housing; and

(ii) Program activities for the adoption of incentives for builders, utilities, and mortgage lenders to build, service, or finance energy efficient housing;

(7) Program activities to identify unfair or deceptive acts or practices which relate to the implementation of energy efficiency measures and renewable energy measures and to educate consumers concerning such acts or practices;

(8) Program activities to modify patterns of energy consumption so as to reduce peak demands for energy and improve the efficiency of energy supply systems, including electricity supply systems;

(9) Program activities to promote energy efficiency as an integral component of economic development planning conducted by State, local, or other governmental entities or by energy utilities;

(10) Program activities (enlisting appropriate trade and professional organizations in the development and financing of such programs) to provide training and education (including, if appropriate, training workshops, practice manuals, and testing for each area of energy efficiency technology) to building designers and contractors involved in building design and construction or in the sale, installation, and maintenance of energy systems and equipment to promote building energy efficiency;

(11) Program activities for the development of building retrofit standards and regulations, including retrofit ordinances enforced at the time of the sale of a building;

(12) Program activities to provide support for prefeasibility and feasibility studies for projects that utilize renewable energy and energy efficiency resource technologies in order to facilitate access to capital and credit for such projects;

(13) Program activities to facilitate and encourage the voluntary use of renewable energy technologies for eligible participants in Federal agency programs, including the Rural Electrification Administration and the Farmers Home Administration; and

(14) In accordance with paragraph (b) of this section, program activities to implement the Energy Technology Commercialization Services Program.

(b) This section prescribes requirements for establishing State-level Energy Technology Commercialization Services Program as an optional element of State plans.

(1) The program activities to implement the functions of the Energy Technology Commercialization Services Program shall:

(i) Aid small and start-up businesses in discovering useful and practical information relating to manufacturing and commercial production techniques and costs associated with new energy technologies;

(ii) Encourage the application of such information in order to solve energy technology product development and manufacturing problems;

(iii) Establish an Energy Technology Commercialization Services Program affiliated with an existing entity in each State;

(iv) Coordinate engineers and manufacturers to aid small and start-up businesses in solving specific technical problems and improving the cost effectiveness of methods for manufacturing new energy technologies;

(v) Assist small and start-up businesses in preparing the technical portions of proposals seeking financial assistance for new energy technology commercialization; and

(vi) Facilitate contract research between university faculty and students and small start-up businesses, in order to improve energy technology product development and independent quality control testing.

(2) Each State Energy Technology Commercialization Services Program shall develop and maintain a data base of engineering and scientific experts in energy technologies and product commercialization interested in participating in the service. Such data base shall, at a minimum, include faculty of institutions of higher education, retired manufacturing experts, and National Laboratory personnel.

(3) The services provided by the Energy Technology Commercialization Services Program established under this subpart shall be available to any small or start-up business. Such service programs shall charge fees which are affordable to a party eligible for assistance, which shall be determined by examining factors, including the following: the costs of the services received; the need of the recipient for the services; and the ability of the recipient to pay for the services.

[61 FR 35895, July 8, 1996, as amended at 62 FR 26727, May 14, 1997; 64 FR 46114, Aug. 24, 1999]

§ 420.18 Expenditure prohibitions and limitations.

(a) No financial assistance provided to a State under this subpart shall be used:

(1) For construction, such as construction of mass transit systems and exclusive bus lanes, or for construction or repair of buildings or structures;

(2) To purchase land, a building or structure or any interest therein;

(3) To subsidize fares for public transportation;

(4) To subsidize utility rate demonstrations or State tax credits for energy conservation measures or renewable energy measures; or

(5) To conduct, or purchase equipment to conduct, research, development or demonstration of energy efficiency or renewable energy techniques and technologies not commercially available.

(b) No more than 20 percent of the financial assistance awarded to the State for this program shall be used to purchase office supplies, library materials, or other equipment whose purchase is not otherwise prohibited by this section. Nothing in this paragraph shall be read to apply this 20 percent limitation to petroleum violation escrow funds used under this subpart.

(c) Demonstrations of commercially available energy efficiency or renewable energy techniques and technologies are permitted, and are not subject to the prohibitions of § 420.18(a)(1), or to the limitation on equipment purchases of § 420.18(b).

(d) A State may use regular or revolving loan mechanisms to fund SEP services which are consistent with this subpart and which are included in the State's approved SEP plan. The State may use loan repayments and any interest on the loan funds only for activities which are consistent with this subpart and which are included in the State's approved SEP plan.

(e) A State may use funds under this subpart for the purchase and installation of equipment and materials for energy efficiency measures and renewable energy measures, including reasonable design costs, subject to the following terms and conditions:

(1) Such use must be included in the State's approved plan and, if funded by petroleum violation escrow funds, must be consistent with any judicial or administrative terms and conditions imposed upon State use of such funds;

(2) A State may use for these purposes no more than 50 percent of all funds allocated by the State to SEP in a given year, regardless of source, except that this limitation shall not include regular and revolving loan programs funded with petroleum violation escrow funds, and is subject to waiver by DOE for good cause. Loan documents shall ensure repayment of principal and interest within a reasonable period of time, and shall not include provisions of loan forgiveness.

(3) Buildings owned or leased by the United States are not eligible for energy efficiency measures or renewable energy measures under paragraph (e) of this section;

(4) Funds must be used to supplement and no funds may be used to supplant weatherization activities under the Weatherization Assistance Program for Low-Income Persons, under 10 CFR part 440;

(5) Subject to paragraph (f) of this section, a State may use a variety of financial incentives to fund purchases and installation of materials and equipment under paragraph (e) of this section including, but not limited to, regular loans, revolving loans, loan buy-downs, performance contracting, rebates and grants.

(f) The following mechanisms are not allowed for funding the purchase and installation of materials and equipment under paragraph (e) of this section:

(1) Rebates for more than 50 percent of the total cost of purchasing and installing materials and equipment (States shall set appropriate restrictions and limits to insure the most efficient use of rebates); and

(2) Loan guarantees.

[61 FR 35895, July 8, 1996, as amended at 62 FR 26727, May 14, 1997; 64 FR 46114, Aug. 24, 1999]

§ 420.19 Administrative review.

(a) A State shall have 20 days from the date of receipt of a decision under § 420.14 to file a notice requesting administrative review in accordance with paragraph (b) of this section. If an applicant does not timely file such a notice, the decision under § 420.14 shall become final for DOE.

(b) A notice requesting administrative review shall be filed with the cognizant Regional Office Director and shall be accompanied by a written statement containing supporting arguments. If the cognizant Regional Office Director has disapproved an entire application for financial assistance, the State may request a public hearing.

(c) A notice or any other document shall be deemed filed under this section upon receipt.

(d) On or before 15 days from receipt of a notice requesting administrative review which is timely filed, the cognizant Regional Office Director shall forward to the Deputy Assistant Secretary, the notice requesting administrative review, the decision under § 420.14 as to which administrative review is sought, a draft recommended final decision for concurrence, and any other relevant material.

(e) If the State requests a public hearing on the disapproval of an entire application for financial assistance under this subpart, the Deputy Assistant Secretary, within 15 days, shall give actual notice to the State and 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 cognizant Regional Office Director.

(g) On or before 15 days from the date of receipt of the determination under paragraph (f) of this section, the Governor may file an application for discretionary review by the Assistant Secretary. On or before 15 days from filing, the Assistant Secretary shall send a notice to the Governor stating whether the Deputy Assistant Secretary's determination will be reviewed. If the Assistant Secretary grants a review, a decision shall be issued no later than 60 days from the date review is granted. The Assistant Secretary may not issue a notice or decision under this paragraph without the concurrence of the DOE Office of General Counsel.

(h) A decision under paragraph (f) of this section shall be final for DOE if there is no review under paragraph (g) of this section. If there is review under paragraph (g) of this section, the decision thereunder shall be final for DOE and no appeal shall lie elsewhere in DOE.

(i) Prior to the effective date of the termination or suspension of a grant award for failure to implement an approved State plan in compliance with the requirements of this subpart, a grantee shall have the right to written notice of the basis for the enforcement action and of the opportunity for public hearing before the DOE Financial Assistance Appeals Board notwithstanding any provisions to the contrary of 10 CFR 600.22, 600.24, 600.25, and 600.243. To obtain a public hearing, the grantee must request an evidentiary hearing, with prior 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.

[61 FR 35895, July 8, 1996, as amended at 64 FR 46114, Aug. 24, 1999]

§ 420.30 Purpose and scope.

(a) This subpart sets forth DOE's policies and procedures for implementing special projects financial assistance under this part.

(b) For years in which such funding is available, States may apply for financial assistance to undertake a variety of State-oriented energy-related special projects activities in addition to the funds provided under the regular SEP grants.

(c) The types of funded activities may vary from year to year, and from State to State, depending upon funds available for each type of activity and DOE and State priorities.

(d) A number of end-use sector programs in the Office of Energy Efficiency and Renewable Energy participate in the funding of these activities, and the projects must meet the requirements of those programs.

(e) The purposes of the special project activities are:

(1) To utilize States to accelerate deployment of energy efficiency, renewable energy, and alternative transportation fuel technologies;

(2) To facilitate the commercialization of emerging and underutilized energy efficiency and renewable energy technologies; and

(3) To increase the responsiveness of Federally funded technology development efforts to the needs of the marketplace.

§ 420.31 Notice of availability.

(a) If in any fiscal year DOE has funds available for special projects, DOE shall publish in the Federal Register one or more notice(s) of availability of SEP special projects financial assistance.

(b) Each notice of availability shall cite this part and shall include:

(1) Brief descriptions of the activities for which funding is available;

(2) The amount of money DOE has available or estimates it will have available for award for each type of activity, and the total amount available;

(3) The program official to contact for additional information, application forms, and the program guidance/solicitation document; and

(4) The dates when:

(i) The program guidance/solicitation will be available; and

(ii) The applications for financial assistance must be received by DOE.

§ 420.32 Program guidance/solicitation.

After the publication of the notice of availability in the Federal Register, DOE shall, upon request, provide States interested in applying for one or more project(s) under the special projects financial assistance with a detailed program guidance/solicitation that will include:

(a) The control number of the program;

(b) The expected duration of DOE support or period of performance;

(c) An application form or the format to be used, location for application submission, and number of copies required;

(d) The name of the DOE program office contact from whom to seek additional information;

(e) Detailed descriptions of each type of program activity for which financial assistance is being offered;

(f) The amount of money available for award, together with any limitations as to maximum or minimum amounts expected to be awarded;

(g) Deadlines for submitting applications;

(h) Evaluation criteria that DOE will apply in the selection and ranking process for applications for each program activity;

(i) The evaluation process to be applied to each type of program activity;

(j) A listing of program policy factors if any that DOE may use in the final selection process, in addition to the results of the evaluations, including:

(1) The importance and relevance of the proposed applications to SEP and the participating programs in the Office of Energy Efficiency and Renewable Energy; and

(2) Geographical diversity;

(k) Reporting requirements;

(l) References to:

(1) Statutory authority for the program;

(2) Applicable rules; and

(3) Other terms and conditions applicable to awards made under the program guidance/solicitation; and

(m) A statement that DOE reserves the right to fund in whole or in part, any, all, or none of the applications submitted.

§ 420.33 Application requirements.

(a) Consistent with § 420.32 of this part, DOE shall set forth general and special project activity-specific requirements for applications for special projects financial assistance in the program guidance/solicitation.

(b) In addition to any other requirements, all applications shall provide:

(1) A detailed description of the proposed project, including the objectives of the project in relationship to DOE's program and the State's plan for carrying it out;

(2) A detailed budget for the entire proposed period of support, with written justification sufficient to evaluate the itemized list of costs provided on the entire project; and

(3) An implementation schedule for carrying out the project.

(c) DOE may, subsequent to receipt of an application, request additional budgetary information from a State when necessary for clarification or to make informed preaward determinations.

(d) DOE may return an application which does not include all information and documentation required by this subpart, 10 CFR part 600, or the program guidance/solicitation, when the nature of the omission precludes review of the application.

[61 FR 35895, July 8, 1996, as amended at 64 FR 46114, Aug. 24, 1999]

§ 420.34 Matching contributions or cost-sharing.

DOE may require (as set forth in the program guidance/solicitation) States to provide either:

(a) A matching contribution of at least a specified percentage of the Federal financial assistance award; or

(b) A specified share of the total cost of the project for which financial assistance is provided.

§ 420.35 Application evaluation.

(a) DOE staff at the cognizant Regional Office shall perform an initial review of all applications to ensure that the State has provided the information required by this subpart, 10 CFR part 600, and the program guidance/solicitation.

(b) DOE shall group, and technically evaluate according to program activity, all applications determined to be complete and satisfactory.

(c) DOE shall select evaluators on the basis of their professional qualifications and expertise relating to the particular program activity being evaluated.

(1) DOE anticipates that evaluators will primarily be DOE employees; but

(2) If DOE uses non-DOE evaluators, DOE shall require them to comply with all applicable DOE rules or directives concerning the use of outside evaluators.

[61 FR 35895, July 8, 1996, as amended at 64 FR 46114, Aug. 24, 1999]

§ 420.36 Evaluation criteria.

The evaluation criteria, including program activity-specific criteria, will be set forth in the program guidance/solicitation document.

§ 420.37 Selection.

(a) DOE may make selection of applications for award based on:

(1) The findings of the technical evaluations;

(2) The priorities of DOE, SEP, and the participating program offices;

(3) The availability of funds for the various special project activities; and

(4) Any program policy factors set forth in the program guidance/solicitation.

(b) The Director, Office of State and Community Programs makes the final selections of projects to be awarded financial assistance.

§ 420.38 Special projects expenditure prohibitions and limitations.

(a) Expenditures under the special projects are subject to 10 CFR part 600 and to any prohibitions and limitations required by the DOE programs that are providing the special projects funding.

(b) DOE must state any expenditure prohibitions or limitations specific to a particular category of special projects in the annual SEP special projects solicitation/guidance.

[64 FR 46114, Aug. 24, 1999]

§ 429.1 Purpose and scope.

This part sets forth the procedures for certification, determination and enforcement of compliance of covered products and covered equipment with the applicable energy conservation standards set forth in parts 430 and 431 of this subchapter.

[87 FR 63646, Oct. 19, 2022]

§ 429.2 Definitions.

(a) The definitions found in 10 CFR parts 430 and 431 apply for purposes of this part.

(b) The following definitions apply for the purposes of this part. Any words or terms defined in this section or elsewhere in this part shall be defined as provided in sections 321 and 340 of the Energy Policy Conservation Act, as amended, hereinafter referred to as “the Act.”

Energy conservation standard means any standards meeting the definitions of that term in 42 U.S.C. 6291(6) and 42 U.S.C. 6311(18) as well as any other water conservation standards and design requirements found in this part or parts 430 or 431.

Engineered-to-order means a basic model of commercial water heating equipment, commercial packaged boiler, commercial heating, ventilation, and air conditioning (HVAC) equipment, or commercial refrigeration equipment that is: Not listed in any catalogs or marketing literature and designed and built to specific customer requirements. A unit of an engineered-to-order basic model is not offered as a set of options (e.g., configure-to-order, menu-system).

Independent means, in the context of a nationally recognized certification program, or accreditation program for electric motors, an entity that is not controlled by, or under common control with, electric motor manufacturers, importers, private labelers, or vendors, and that has no affiliation, financial ties, or contractual agreements, apparently or otherwise, with such entities that would:

(i) Hinder the ability of the program to evaluate fully or report the measured or calculated energy efficiency of any electric motor, or

(ii) Create any potential or actual conflict of interest that would undermine the validity of said evaluation. For purposes of this definition, financial ties or contractual agreements between an electric motor manufacturer, importer, private labeler or vendor and a nationally recognized certification program, or accreditation program exclusively for certification or accreditation services does not negate an otherwise independent relationship.

Manufacturer's model number means the identifier used by a manufacturer to uniquely identify the group of identical or essentially identical covered products or covered equipment to which a particular unit belongs. The manufacturer's model number typically appears on the product nameplates, in product catalogs and in other product advertising literature.

[76 FR 12451, Mar. 7, 2011, as amended at 79 FR 25499, May 5, 2014; 81 FR 4144, Jan. 25, 2016; 82 FR 1099, Jan. 4, 2017; 87 FR 63646, Oct. 19, 2022]

§ 429.3 Sources for information and guidance.

(a) General. The standards listed in this paragraph are referred to in §§ 429.73 and 429.74 and are not incorporated by reference. These sources are provided here for information and guidance only.

(b) ISO/IEC. International Organization for Standardization (ISO), 1, ch. de la Voie-Creuse, CP 56, CH-1211 Geneva 20, Switzerland/International Electrotechnical Commission, 3, rue de Varembé, P.O. Box 131, CH-1211 Geneva 20, Switzerland.

(1) International Organization for Standardization (ISO)/International Electrotechnical Commission (IEC), (“ISO/IEC”) 17025, “General requirements for the competence of calibration and testing laboratories,” November 2017.

(2) [Reserved]

(c) NVLAP. National Voluntary Laboratory Accreditation Program, National Institute of Standards and Technology, 100 Bureau Drive, M/S 2140, Gaithersburg, MD 20899-2140, 301-975-4016, or go to www.nist.gov/nvlap/. Also see http://www.nist.gov/nvlap/nvlap-handbooks.cfm.

(1) National Institute of Standards and Technology (NIST) Handbook 150, “NVLAP Procedures and General Requirements,” 2000 edition, August 2020.

(2) National Institute of Standards and Technology (NIST) Handbook 150-10, “Efficiency of Electric Motors,” 2020 edition, April 2020.

[87 FR 63646, Oct. 19, 2022]

§ 429.4 Materials incorporated by reference.

(a) Certain material is incorporated by reference into this part with the approval of the Director of the Federal Register under 5 U.S.C. 552(a) and 1 CFR part 51. To enforce any edition other than that specified in this section, the U.S. Department of Energy (DOE) must publish a document in the Federal Register and the material must be available to the public. All approved incorporation by reference (IBR) material is available for inspection at the Department of Energy (DOE) and at the National Archives and Records Administration (NARA). Contact DOE at: The U.S. Department of Energy, Office of Energy Efficiency and Renewable Energy, Building Technologies Office, EE-5B, 1000 Independence Avenue SW, Washington, DC 20585-0121; (202) 586-9127; Buildings@ee.doe.gov; www.energy.gov/eere/buildings/appliance-and-equipment-standards-program. For information on the availability of this material at NARA, visit www.archives.gov/federal-register/cfr/ibr-locations or email fr.inspection@nara.gov. The material may be obtained from the sources in the following paragraphs of this section.

(b) AHAM. Association of Home Appliance Manufacturers, 1111 19th Street, NW., Suite 402, Washington, DC 20036, 202-872-5955, or go to www.aham.org.

(1) ANSI/AHAM DW-1-2010, Household Electric Dishwashers, (ANSI approved September 18, 2010), IBR approved for § 429.19.

(2) ANSI/AHAM PAC-1-2015 (“ANSI/AHAM PAC-1-2015”), Portable Air Conditioners, June 19, 2015, IBR approved for § 429.62.

(3) AHAM PAC-1-2022, Energy Measurement Test Procedure for Portable Air Conditioners, Copyright 2022. IBR approved for § 429.62.

(c) AHRI. Air-Conditioning, Heating, and Refrigeration Institute, 2311 Wilson Blvd., Suite 400, Arlington, VA 22201, (703) 524-8800, or go to: www.ahrinet.org.

(1) AHRI Standard 210/240-2023, (“AHRI 210/240-2023”), 2023 Standard for Performance Rating of Unitary Air-conditioning & Air-source Heat Pump Equipment, copyright 2020; IBR approved for § 429.67.

(2) AHRI Standard 210/240-2024 (I-P), (“AHRI 210/240-2024”), Performance Rating of Unitary Air-conditioning and Air-source Heat Pump Equipment, copyright 2024; IBR approved for § 429.134.

(3) AHRI Standard 390 (I-P)-2021, (“AHRI 390-2021”), 2021 Standard for Performance Rating of Single Package Vertical Air-conditioners And Heat Pumps, IBR approved for § 429.134.

(4) AHRI Standard 600-2023 (I-P) (“AHRI 600-2023”), 2023 Standard for Performance Rating of Water/Brine to Air Heat Pump Equipment, approved September 11, 2023; IBR approved for § 429.43.

(5) AHRI Standard 1230(I-P) (“AHRI 1230-2021”), 2021 Standard for Performance Rating of Variable Refrigerant Flow (VRF) Multi-Split Air-Conditioning and Heat Pump Equipment, copyright 2021; IBR approved for §§ 429.43; 429.134.

(6) AHRI Standard 1340-2023 (I-P) (“AHRI 1340-2023”), 2023 Standard for Performance Rating of Commercial and Industrial Unitary Air-conditioning and Heat Pump Equipment, approved November 16, 2023; IBR approved for §§ 429.43; 429.134.

(7) AHRI Standard 1360-2022 (I-P) (“AHRI 1360-2022”), 2022 Standard for Performance Rating of Computer and Data Processing Room Air Conditioners, copyright 2022; IBR approved for § 429.43.

(8) AHRI Standard 1500-2015, (“ANSI/AHRI Standard 1500-2015”), “2015 Standard for Performance Rating of Commercial Space Heating Boilers,” ANSI approved November 28, 2014: Figure C9, Suggested Piping Arrangement for Hot Water Boilers; IBR approved for § 429.60.

(9) AHRI Standard 1600-2024 (I-P), (“AHRI 1600-2024”), Performance Rating of Unitary Air-conditioning and Air-source Heat Pump Equipment, copyright 2024; IBR approved for § 429.134.

(d) ASHRAE. The American Society of Heating, Refrigerating and Air-Conditioning Engineers. 180 Technology Parkway NW, Peachtree Corners, GA 30092; (404) 636-8400, www.ashrae.org.

(1) ANSI/ASHRAE Standard 37-2009 (“ASHRAE 37-2009”), Methods of Testing for Rating Electrically Driven Unitary Air-Conditioning and Heat Pump Equipment, ASHRAE approved June 24, 2009; IBR approved for § 429.134.

(2) ANSI/ASHRAE 41.2-1987 (RA 92) (“ASHRAE 41.2-1987”), Standard Methods For Laboratory Airflow Measurement, ANSI reaffirmed April 22, 1992; IBR approved for § 429.134.

(e) HI. Hydraulic Institute, 6 Campus Drive, First Floor North, Parsippany, NJ 07054-4406, 973-267-9700. www.Pumps.org.

(1) HI 40.6-2014, (“HI 40.6-2014-B”), “Methods for Rotodynamic Pump Efficiency Testing,”, (except for sections 40.6.4.1 “Vertically suspended pumps”, 40.6.4.2 “Submersible pumps”,40.6.5.3 “Test report”, 40.6.5.5 “Test conditions”, 40.6.5.5.2 “Speed of rotation during testing”, and 40.6.6.1 “Translation of test results to rated speed of rotation”, and Appendix A “Testing arrangements (normative)”: A.7 “Testing at temperatures exceeding 30 °C (86 °F)”, and Appendix B “Reporting of test results (normative)”), copyright 2014, IBR approved for § 429.134.

(2) [Reserved]

(f) ISO. International Organization for Standardization, ch. de la Voie-Creuse CP 56 CH-1211 Geneva 20 Switzerland, telephone + 41 22 749 01 11, or go to www.iso.org/iso.

(1) International Organization for Standardization (ISO)/International Electrotechnical Commission, (“ISO/IEC 17025:2005(E)”), “General requirements for the competence of testing and calibration laboratories”, Second edition, May 15, 2005, IBR approved for § 429.110.

(2) [Reserved]

(g) NSF. NSF International. 789 N. Dixboro Road, Ann Arbor, MI 48105, (743) 769-8010. www.nsf.org.

(1) NSF/ANSI 50-2015, “Equipment for Swimming Pools, Spas, Hot Tubs and Other Recreational Water Facilities,” Annex C—“Test methods for the evaluation of centrifugal pumps,” Section C.3, “self-priming capability,” ANSI approved January 26, 2015, IBR approved for §§ 429.59 and 429.134.

(2) [Reserved]

(h) UL. Underwriters Laboratories, 333 Pfingsten Road, Northbrook, IL 60062; (841) 272-8800; www.ul.com.

(1) UL 1004-10 (“UL 1004-10:2022”), Standard for Safety for Pool Pump Motors, Revised First Edition, Dated March 24, 2022; IBR approved for § 429.134.

(2) [Reserved]

[76 FR 12451, Mar. 7, 2011, as amended at 77 FR 65977, Oct. 31, 2012; 80 FR 79668, Dec. 23, 2015; 81 FR 35264, June 1, 2016; 81 FR 89303, Dec. 9, 2016; 81 FR 90118, Dec. 13, 2016; 82 FR 36917, Aug. 7, 2017; 87 FR 63891, Oct. 20, 2022; 87 FR 75166, Dec. 7, 2022; 87 FR 77317, Dec. 16, 2022; 88 FR 21836, Apr. 11, 2023; 88 FR 31126, May 15, 2023; 88 FR 67040, Sept. 28, 2023; 88 FR 84226, Dec. 4, 2023; 89 FR 44032, May 20, 2024; 89 FR 82059, Oct. 9, 2024; 90 FR 1272, Jan. 7, 2025; 90 FR 43377, Sept. 9, 2025]

§ 429.5 Imported products.

(a) Any person importing any covered product or covered equipment into the United States shall comply with the provisions of this part, and parts 430 and 431, and is subject to the remedies of this part.

(b) Any covered product or covered equipment offered for importation in violation of this part, or part 430 or 431, shall be refused admission into the customs territory of the United States under rules issued by the U.S. Customs and Border Protection (CBP) and subject to further remedies as provided by law, except that CBP may, by such rules, authorize the importation of such covered product or covered equipment upon such terms and conditions (including the furnishing of a bond) as may appear to CBP appropriate to ensure that such covered product or covered equipment will not violate this part, or part 430 or 431, or will be exported or abandoned to the United States.

§ 429.6 Exported products.

This part, and parts 430 and 431, shall not apply to any covered product or covered equipment if:

(a) Such covered product or covered equipment is manufactured, sold, or held for sale for export from the United States or is imported for export;

(b) Such covered product or covered equipment or any container in which it is enclosed, when distributed in commerce, bears a stamp or label stating “NOT FOR SALE FOR USE IN THE UNITED STATES”; and

(c) Such product is, in fact, not distributed in commerce for use in the United States.

§ 429.7 Confidentiality.

(a) The following records are not exempt from public disclosure: Product or equipment type; product or equipment class; private labeler name; brand name; applicable model number(s) unless that information meets the criteria specified in paragraph (b) of this section; energy or water ratings submitted by manufacturers to DOE pursuant to § 429.12(b)(13); whether the certification was based on a test procedure waiver and the date of such waiver; and whether the certification was based on exception relief from the Office of Hearing and Appeals and the date of such relief.

(b) An individual, manufacturer model number is public information unless:

(1) The individual, manufacturer model number is a unique model number of a commercial packaged boiler, commercial water heating equipment, commercial HVAC equipment or commercial refrigeration equipment that was developed for an individual customer,

(2) The individual, manufacturer model number is not displayed on product literature, and

(3) Disclosure of the individual, manufacturer model number would reveal confidential business information as described at § 1004.11 of this title—in which case, under these limited circumstances, a manufacturer may identify the individual manufacturer model number as a private model number on a certification report submitted pursuant to § 429.12(b)(6).

(c) Pursuant to the provisions of 10 CFR 1004.11(e), any person submitting information or data which the person believes to be confidential and exempt by law from public disclosure should—at the time of submission—submit:

(1) One complete copy, and one copy from which the information believed to be confidential has been deleted.

(2) A request for confidentiality containing the submitter's views on the reasons for withholding the information from disclosure, including:

(i) A description of the items sought to be withheld from public disclosure,

(ii) Whether and why such items are customarily treated as confidential within the industry,

(iii) Whether the information is generally known by or available from other sources,

(iv) Whether the information has previously been made available to others without obligation concerning its confidentiality,

(v) An explanation of the competitive injury to the submitting person which would result from public disclosure,

(vi) A date upon which such information might lose its confidential nature due to the passage of time, and

(vii) Why disclosure of the information would be contrary to the public interest.

(d) In accordance with the procedures established in 10 CFR 1004.11(e), DOE shall make its own determination with regard to any claim that information submitted be exempt from public disclosure.

[76 FR 12451, Mar. 7, 2011, as amended at 79 FR 25499, May 5, 2014; 80 FR 151, Jan. 5, 2015]

§ 429.8 Subpoena.

For purposes of carrying out parts 429, 430, and 431, the General Counsel (or delegee), may sign and issue subpoenas for the attendance and testimony of witnesses and the production of relevant books, records, papers, and other documents, and administer oaths. Witnesses summoned under the provisions of this section shall be paid the same fees and mileage as are paid to witnesses in the courts of the United States. In case of contumacy by, or refusal to obey a subpoena served, upon any persons subject to parts 429, 430, or 431, the General Counsel (or delegee) may seek an order from the District Court of the United States for any District in which such person is found or resides or transacts business requiring such person to appear and give testimony, or to appear and produce documents. Failure to obey such order is punishable by such court as contempt thereof.

§ 429.10 Purpose and scope.

This subpart sets forth the procedures for manufacturers to certify that their covered products and covered equipment comply with the applicable energy conservation standards.

§ 429.11 General sampling requirements for selecting units to be tested.

(a) When testing of covered products or covered equipment is required to comply with section 323(c) of the Act, or to comply with rules prescribed under sections 324, 325, 342, 344, 345 or 346 of the Act, a sample comprised of production units (or units representative of production units) of the basic model being tested must be selected at random and tested and must meet the criteria found in §§ 429.14 through 429.69 and § 429.76. Components of similar design may be substituted without additional testing if the substitution does not affect energy or water consumption. Any represented values of measures of energy efficiency, water efficiency, energy consumption, or water consumption for all individual models represented by a given basic model must be the same, except for central air conditioners and central air conditioning heat pumps, as specified in § 429.16; and

(b) The minimum number of units tested shall be no less than two, except where:

(1) A different minimum limit is specified in §§ 429.14 through 429.69 and § 429.76; or

(2) Only one unit of the basic model is produced, in which case, that unit must be tested and the test results must demonstrate that the basic model performs at or better than the applicable standard(s). If one or more units of the basic model are manufactured subsequently, compliance with the default sampling and representations provisions is required.

[87 FR 63646, Oct. 19, 2022, as amended at 88 FR 14043, Mar. 6, 2023; 88 FR 27387, May 1, 2023; 88 FR 38626, June 13, 2023]

§ 429.12 General requirements applicable to certification reports.

(a) Certification. Each manufacturer, before distributing in commerce any basic model of a covered product or covered equipment subject to an applicable energy conservation standard set forth in parts 430 or 431, and annually thereafter on or before the dates provided in paragraph (d) of this section, shall submit a certification report to DOE certifying that each basic model meets the applicable energy conservation standard(s). The certification report(s) must be submitted to DOE in accordance with the submission procedures of paragraph (h) of this section.

(b) Certification report. A certification report shall include a compliance statement (see paragraph (c) of this section), and for each basic model, the information listed in this paragraph (b).

(1) Product or equipment type;

(2) Product or equipment class (as denoted in the provisions of part 430 or 431 of this chapter containing the applicable energy conservation standard);

(3) Manufacturer's name and address;

(4) Private labeler's name(s) and address(es) (if applicable);

(5) Brand name;

(6) For each brand, the basic model number and the manufacturer's individual model number(s) in that basic model with the following exceptions: For external power supplies that are certified based on design families, the design family model number and the individual manufacturer's model numbers covered by that design family must be submitted for each brand. For distribution transformers, the basic model number or kVA grouping model number (depending on the certification method) for each brand must be submitted. For commercial HVAC, WH, and refrigeration equipment, an individual manufacturer model number may be identified as a “private model number” if it meets the requirements of § 429.7(b).

(7) Whether the submission is for a new model, a discontinued model, a correction to a previously submitted model, data on a carryover model, or a model that has been found in violation of a voluntary industry certification program;

(8) The test sample size as follows:

(i) The number of units tested for the basic model; or

(ii) In the case of single-split system or single-package central air conditioners and central air conditioning heat pumps; air-cooled, three-phase, small commercial package air conditioning and heating equipment with a cooling capacity of less than 65,000 Btu/h; air-cooled, three-phase, variable refrigerant flow multi-split air conditioners and heat pumps with a cooling capacity of less than 65,000 Btu/h; or multi-split, multi-circuit, or multi-head mini-split systems other than the “tested combination,” the number of units tested for each individual combination or individual model; or

(iii) If an AEDM was used in lieu of testing, enter “0” (and in the case of central air conditioners and central air conditioning heat pumps, this must be indicated separately for each metric);

(9) The certifying party's U.S. Customs and Border Protection (CBP) importer identification numbers assigned by CBP pursuant to 19 CFR 24.5, if applicable;

(10) Whether certification is based upon any waiver of test procedure requirements under § 430.27 or § 431.401 of this chapter and the date(s) of such waiver(s);

(11) Whether certification is based upon any exception relief from an applicable energy conservation standard and the date such relief was issued by DOE's Office of Hearings and Appeals;

(12) If the test sample size is listed as “0” to indicate the certification is based upon the use of an alternate way of determining measures of energy conservation, identify the method used for determining measures of energy conservation (such as “AEDM,” or linear interpolation). Manufacturers of commercial packaged boilers, commercial water heating equipment, commercial refrigeration equipment, commercial HVAC equipment, and central air conditioners and central air conditioning heat pumps must provide the manufacturer's designation (name or other identifier) of the AEDM used; and

(13) Product specific information listed in §§ 429.14 through 429.63 of this chapter.

(c) Compliance statement. The compliance statement required by paragraph (b) of this section shall include the date, the name of the company official signing the statement, and his or her signature, title, address, telephone number, and facsimile number and shall certify that:

(1) The basic model(s) complies with the applicable energy conservation standard(s);

(2) All required testing has been conducted in conformance with the applicable test requirements prescribed in parts 429, 430 and 431, as appropriate, or in accordance with the terms of an applicable test procedure waiver;

(3) All information reported in the certification report is true, accurate, and complete; and

(4) The manufacturer is aware of the penalties associated with violations of the Act, the regulations thereunder, and 18 U.S.C. 1001 which prohibits knowingly making false statements to the Federal Government.

(d) Annual filing. All data required by paragraphs (a) through (c) of this section shall be submitted to DOE annually, on or before the following dates:

Table 1 to Paragraph (d)

Product category | Deadline for data submission

Portable air conditioners | February 1.

Fluorescent lamp ballasts; Compact fluorescent lamps; General service fluorescent lamps, general service incandescent lamps, and incandescent reflector lamps; Candelabra base incandescent lamps and intermediate base incandescent lamps; Ceiling fans; Ceiling fan light kits; Showerheads; Faucets; Water closets; and Urinals | March 1.

Water heaters; Consumer furnaces; Pool heaters; Commercial water heating equipment; Commercial packaged boilers; Commercial warm air furnaces; Commercial unit heaters; and Furnace fans | May 1.

Dishwashers; Commercial pre-rinse spray valves; Illuminated exit signs; Traffic signal modules and pedestrian modules; and Distribution transformers | June 1.

Room air conditioners; Central air conditioners and central air conditioning heat pumps; and Commercial heating, ventilating, air conditioning (HVAC) equipment | July 1.

Consumer refrigerators, refrigerator-freezers, and freezers; Commercial refrigerators, freezers, and refrigerator-freezers; Automatic commercial ice makers; Refrigerated bottled or canned beverage vending machines; Walk-in coolers and walk-in freezers; and Consumer miscellaneous refrigeration products | August 1.

Torchieres; Dehumidifiers; Metal halide lamp ballasts and fixtures; External power supplies; Pumps; and Battery chargers. | September 1.

Residential clothes washers; Residential clothes dryers; Direct heating equipment; Cooking products; and Commercial clothes washers | October 1.

(e) New model filing. (1) In addition to the annual filing schedule in paragraph (d) of this section, any new basic models must be certified pursuant to paragraph (a) of this section before distribution in commerce. A modification to a model that increases the model's energy or water consumption or decreases its efficiency resulting in re-rating must be certified as a new basic model pursuant to paragraph (a) of this section.

(2) For distribution transformers, the manufacturer shall submit all information required in paragraphs (b) and (c) of this section for the new basic model, unless the manufacturer has previously submitted to the Department a certification report for a basic model of distribution transformer that is in the same kVA grouping as the new basic model.

(f) Discontinued model filing. When production of a basic model has ceased and it is no longer being sold or offered for sale by the manufacturer or private labeler, the manufacturer must report this discontinued status to DOE as part of the next annual certification report following such cessation. For each basic model, the report must include the information specified in paragraphs (b)(1) through (7) of this section, except that for integrated light-emitting diode lamps and for compact fluorescent lamps, the manufacturer must submit a full certification report, including all of the information required by paragraph (b) of this section and the product-specific information required by § 429.56(b)(2) or § 429.35(b)(2), respectively.

(g) Third party submitters. A manufacturer may elect to use a third party to submit the certification report to DOE (for example, a trade association, independent test lab, or other authorized representative, including a private labeler acting as a third party submitter on behalf of a manufacturer); however, the manufacturer is responsible for submission of the certification report to DOE. DOE may refuse to accept certification reports from third party submitters who have failed to submit reports in accordance with the rules of this part. The third party submitter must complete the compliance statement as part of the certification report. Each manufacturer using a third party submitter must have an authorization form on file with DOE. The authorization form includes a compliance statement, specifies the third party authorized to submit certification reports on the manufacturer's behalf and provides the contact information and signature of a company official.

(h) Method of submission. Reports required by this section must be submitted to DOE electronically at http://www.regulations.doe.gov/ccms (CCMS). A manufacturer or third party submitter can find product-specific templates for each covered product or covered equipment with certification requirements online at https://www.regulations.doe.gov/ccms/templates.html. Manufacturers and third party submitters must submit a registration form, signed by an officer of the company, in order to obtain access to CCMS.

(i) Compliance dates. For any product subject to an applicable energy conservation standard for which the compliance date has not yet occurred, a certification report must be submitted not later than the compliance date for the applicable energy conservation standard. The covered products enumerated below are subject to the stated compliance dates for initial certification:

(1) Commercial warm air furnaces, packaged terminal air conditioners, and packaged terminal heat pumps, July 1, 2014;

(2) Commercial gas-fired and oil-fired instantaneous water heaters less than 10 gallons and commercial gas-fired and oil-fired hot water supply boilers less than 10 gallons, October 1, 2014;

(3) All other types of covered commercial water heaters except those specified in paragraph (i)(2) of this section, commercial packaged boilers with input capacities less than or equal to 2.5 million Btu/h, and self-contained commercial refrigeration equipment with solid or transparent doors, December 31, 2014;

(4) Variable refrigerant flow air conditioners and heat pumps, March 31, 2015;

(5) Small, large, and very large air-cooled, water-cooled, evaporatively-cooled, and water-source commercial air conditioning and heating equipment, single package vertical units, computer room air conditioners, commercial package boilers with input capacities greater than 2.5 million Btu/h, and all other types of commercial refrigeration equipment except those specified in paragraph (i)(3) of this section, July 1, 2015.

[76 FR 12451, Mar. 7, 2011; 76 FR 24762, May 2, 2011, as amended at 76 FR 38292, June 30, 2011; 76 FR 65365, Oct. 21, 2011; 77 FR 76830, Dec. 31, 2012; 78 FR 79593, Dec. 31, 2013; 79 FR 25500, May 5, 2014; 79 FR 38208, July 3, 2014; 81 FR 4430, Jan. 26, 2016; 81 FR 37049, June 8, 2016; 81 FR 43425, July 1, 2016; 81 FR 46789, July 18, 2016; 81 FR 59415, Aug. 29, 2016; 81 FR 95798, Dec. 28, 2016; 85 FR 1446, 1591, Jan. 10, 2020; 87 FR 43976, July 22, 2022; 87 FR 53637, Aug. 31, 2022; 87 FR 77317, Dec. 16, 2022; 89 FR 82059, Oct. 9, 2024; 90 FR 43377, Sept. 9, 2025]

§ 429.13 Testing requirements.

(a) The determination that a basic model complies with an applicable energy conservation standard shall be determined from the values derived pursuant to the applicable testing and sampling requirements set forth in parts 429, 430 and 431. The determination that a basic model complies with the applicable design standard shall be based upon the incorporation of specific design requirements in parts 430 and 431 or as specified in section 325 and 342 of the Act.

(b) Where DOE has determined a particular entity is in noncompliance with an applicable standard or certification requirement, DOE may impose additional testing requirements as a remedial measure.

§ 429.14 Consumer refrigerators, refrigerator-freezers and freezers.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to residential refrigerators, refrigerator-freezers and freezers; and

(2) For each basic model of residential refrigerators, refrigerator-freezers, and freezers, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of estimated annual operating cost, energy consumption, or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

or,

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:

and

(ii) Any represented value of the energy factor or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:

(3) The value of total refrigerated volume of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the total refrigerated volumes measured for each tested unit of the basic model or the total refrigerated volume of the basic model as calculated in accordance with § 429.72(c). The value of adjusted total volume of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the adjusted total volumes measured for each tested unit of the basic model or the adjusted total volume of the basic model as calculated in accordance with § 429.72(c).

(b) Certification reports. (1) The requirements of § 429.12 are applicable to residential refrigerators, refrigerator-freezers and freezers; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The annual energy use in kilowatt hours per year (kWh/yr); the total refrigerated volume in cubic feet (ft 3); and the adjusted total volume in cubic feet (ft 3).

(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information: Whether the basic model has variable defrost control (in which case, manufacturers must also report the values, if any, of CTL and CTM (See section 5.3 of appendix A and appendix B to subpart B of 10 CFR part 430) used in the calculation of energy consumption), whether the basic model has variable anti-sweat heater control (in which case, manufacturers must also report the values of heater Watts at the ten humidity levels (5%, 15%, 25%, 35%, 45%, 55%, 65%, 75%, 85%, and 95%) used to calculate the variable anti-sweat heater “Correction Factor”), and whether testing has been conducted with modifications to the standard temperature sensor locations, as specified in section 5.1(g) of appendices A and B to subpart B of 10 CFR part 430, as applicable.

(c) Rounding requirements for representative values, including certified and rated values. (1) The represented value of annual energy use must be rounded to the nearest kilowatt hour per year.

(2) The represented value of total refrigerated volume must be rounded to the nearest 0.1 cubic foot.

(3) The represented value of adjusted total volume must be rounded to the nearest 0.1 cubic foot.

(d) Product category determination. Each basic model shall be certified according to the appropriate product category as defined in § 430.2 of this chapter based on compartment volumes and compartment temperatures. If one or more compartments could be classified as both a fresh food compartment and a freezer compartment, the model must be certified to each applicable product category based on the operation of the compartment(s) as both fresh food and freezer compartments.

(1) Compartment volume used to determine product category shall be, for each compartment, the mean of the volumes of that specific compartment for the sample of tested units of the basic model, measured according to the provisions in section 4.1 of appendix A of subpart B of part 430 of this chapter for refrigerators and refrigerator-freezers and section 4.1 of appendix B of subpart B of part 430 of this chapter for freezers, or, for each compartment, the volume of that specific compartment calculated for the basic model in accordance with § 429.72(c).

(2) Determination of the compartment temperature ranges shall be based on operation under the conditions specified and using measurement of compartment temperature as specified in appendix A of subpart B of part 430 of this chapter for refrigerators and refrigerator-freezers and appendix B of subpart B of part 430 of this chapter for freezers. The determination of compartment status may require evaluation of a model at the extremes of the range of user-selectable temperature control settings. If the temperature ranges for the same compartment of multiple units of a sample are different, the maximum and minimum compartment temperatures for compartment status determination shall be based on the mean measurements for the units in the sample.

[76 FR 12451, Mar. 7, 2011; 76 FR 24762, May 2, 2011, as amended at 79 FR 22348, Apr. 21, 2014; 81 FR 46789, July 18, 2016; 86 FR 56819, Oct. 12, 2021; 88 FR 7845, Feb. 7, 2023]

Effective Date Note:At 81 FR 46789, July 18, 2016, § 429.14(c)(2) and (3) were stayed indefinitely.

§ 429.15 Room air conditioners.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to room air conditioners; and

(2) For each basic model of room air conditioners, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

or,

(B) The upper 97 1/2 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and

(ii) Any represented value of the combined energy efficiency ratio (CEER) (determined in § 430.23(f)(3) for each unit in the sample) or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

or,

(B) The lower 97 1/2 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(3) The cooling capacity of a basic model is the mean of the measured cooling capacities for each tested unit of the basic model, as determined in § 430.23(f)(1) of this chapter. Round the cooling capacity value to the nearest hundred.

(4) The electrical power input of a basic model is the mean of the measured electrical power inputs for each tested unit of the basic model, as determined in § 430.23(f)(2) of this chapter. Round the electrical power input to the nearest ten.

(5) Round the value of CEER for a basic model to one decimal place.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to room air conditioners; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The combined energy efficiency ratio in British thermal units per Watt-hour (Btu/Wh)), cooling capacity in British thermal units per hour (Btu/h), and the electrical power input in watts (W).

(3) Pursuant to § 429.12(b)(13), a certification report for a variable-speed room air conditioner basic model must include supplemental information and instructions in PDF format that include—

(i) The mean measured cooling capacity for the units tested at each additional test condition (i.e., respectively, the mean of Capacity2, Capacity3, and Capacity4, each expressed in Btu/h and rounded to the nearest 100 Btu/h, as determined in accordance with section 4.1.2 of appendix F of subpart B of part 430 of this chapter);

(ii) The mean electrical power input at each additional test condition (respectively, the mean of Power2, Power3, and Power4, each expressed in W and rounded to the nearest 10 W, as determined in accordance with section 4.1.2 of appendix F of subpart B of part 430 of this chapter); and

(iii) All additional testing and testing set up instructions (e.g., specific operational or control codes or settings) necessary to operate the basic model under the required conditions specified by the relevant test procedure.

[76 FR 12451, Mar. 7, 2011; 76 FR 24763, May 2, 2011, as amended at 86 FR 16475, Mar. 29, 2021]

§ 429.16 Central air conditioners and central air conditioning heat pumps.

(1) Required represented values. Determine the represented values (including as applicable, SEER2, EER2, HSPF2, PW,OFF, SCORE, SHORE, EER, cooling capacity, and heating capacity) for the individual models/combinations (or “tested combinations”) specified in the following table.

Table 1 to Paragraph (a)(1)

Category | Equipment subcategory | Required represented values

Single-Package Unit | Single-Package Air Conditioner (AC) (including space-constrained) | Every individual model distributed in commerce.

Single-Package Heat Pump (HP) (including space-constrained) | Every individual model distributed in commerce.

Outdoor Unit and Indoor Unit (Distributed in Commerce by Outdoor Unit Manufacturer (OUM)) | Single-Split-System AC with Single-Stage or Two-Stage Compressor (including Space-Constrained and Small-Duct, High Velocity Systems (SDHV)) | Every individual combination distributed in commerce. Each model of outdoor unit must include a represented value for at least one coil-only individual combination that is distributed in commerce and which is representative of the least efficient combination distributed in commerce with that particular model of outdoor unit. For that particular model of outdoor unit, additional represented values for coil-only and blower-coil individual combinations are allowed, if distributed in commerce.

Single-Split System AC with Other Than Single-Stage or Two-Stage Compressor (including Space-Constrained and SDHV) | Every individual combination distributed in commerce, including all coil-only and blower-coil combinations.

Single-Split-System HP (including Space-Constrained and SDHV) | Every individual combination distributed in commerce.

Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—non-SDHV (including Space-Constrained) | For each model of outdoor unit, at a minimum, a non-ducted “tested combination.” For any model of outdoor unit also sold with models of ducted indoor units, a ducted “tested combination.” The ducted “tested combination” must comprise the highest static variety of ducted indoor unit distributed in commerce (i.e., conventional, mid-static, or low-static). Additional representations are allowed, as described in paragraphs (c)(3)(i) and (ii) of this section, respectively.

Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—SDHV | For each model of outdoor unit, an SDHV “tested combination.” Additional representations are allowed, as described in paragraph (c)(3)(iii) of this section.

Indoor Unit Only Distributed in Commerce by Independent Coil Manufacturer (ICM) | Single-Split-System Air Conditioner (including Space-Constrained and SDHV) Single-Split-System Heat Pump (including Space-Constrained and SDHV) | Every individual combination distributed in commerce.

Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—SDHV | For a model of indoor unit within each basic model, an SDHV “tested combination.” Additional representations are allowed, as described in paragraph (c)(3)(iii) of this section.

Outdoor Unit with no Match | Every model of outdoor unit distributed in commerce (tested with a model of coil-only indoor unit as specified in paragraph (b)(2)(i) of this section.

(2) PW,OFF. Represented values of PW,OFF are only required when determining represented values in accordance with 10 CFR part 430, subpart B, appendix M1. If individual models of single-package systems or individual combinations (or “tested combinations”) of split systems that are otherwise identical are offered with multiple options for off-mode-related components, determine the represented value for the individual model/combination with the crankcase heater and controls that are the most consumptive. A manufacturer may also determine represented values for individual models/combinations with less consumptive off-mode options; however, all such options must be identified with different model numbers for single-package systems or for outdoor units (in the case of split systems).

(3) Refrigerants. (i) If a model of outdoor unit (used in a single-split, multi-split, multi-circuit, multi-head mini-split, and/or outdoor unit with no match system) is distributed in commerce and approved for use with multiple refrigerants, a manufacturer must determine all represented values for that model using each refrigerant that can be used in an individual combination of the basic model (including outdoor units with no match or “tested combinations”). This requirement may apply across the listed categories in the table 1 to paragraph (a)(1) of this section. A refrigerant is considered approved for use if it is listed on the nameplate of the outdoor unit.

(ii) If a model is approved for use with multiple refrigerants, a manufacturer may make multiple separate representations for the performance of that model (all within the same individual combination or outdoor unit with no match) using the multiple approved refrigerants. In the alternative, manufacturers may certify the model (all within the same individual combination or outdoor unit with no match) with a single representation, provided that the represented value is no more efficient than its performance using the least-efficient refrigerant. If a manufacturer certifies a single model with multiple representations for the different approved refrigerants, it may use an AEDM to determine the represented values for all other refrigerants besides the refrigerant used for testing. A single representation made for multiple refrigerants may not include equipment in multiple categories or equipment subcategories listed in the table in paragraph (a)(1) of this section.

(4) Limitations for represented values of individual combinations. The following paragraphs explains the limitations for represented values of individual combinations (or “tested combinations”).

(i) Regional. A basic model (model of outdoor unit) may only be certified as compliant with a regional standard if all individual combinations within that basic model meet the regional standard for which it is certified, including the coil-only combination as specified in paragraph (a)(1) of this section, as applicable. A model of outdoor unit that is certified below a regional standard can only be rated and certified as compliant with a regional standard if the model of outdoor unit has a unique model number and has been certified as a different basic model for distribution in each region, where the basic model(s) certified as compliant with a regional standard meet the requirements of the first sentence. An ICM cannot certify an individual combination with a rating that is compliant with a regional standard if the individual combination includes a model of outdoor unit that the OUM has certified with a rating that is not compliant with a regional standard. Conversely, an ICM cannot certify an individual combination with a rating that is not compliant with a regional standard if the individual combination includes a model of outdoor unit that an OUM has certified with a rating that is compliant with a regional standard.

(ii) Multiple product classes. Models of outdoor units that are rated and distributed in individual combinations that span multiple product classes must be tested, rated, and certified pursuant to paragraph (a) of this section as compliant with the applicable standard for each product class. This includes multi-split systems, multi-circuit systems, and multi-head mini-split systems with a represented value for a mixed combination including both SDHV and either non-ducted or ducted indoor units.

(5) Requirements. All represented values under paragraph (a) of this section must be based on testing in accordance with the requirements in paragraph (b) of this section or the application of an AEDM or other methodology as allowed in paragraph (c) of this section.

(b) Units tested—(1) General. The general requirements of § 429.11 apply to central air conditioners and heat pumps; and

(2) Individual model/combination selection for testing. (i) Table 2 to this paragraph (b)(2)(i) identifies the minimum testing requirements for each basic model that includes multiple individual models/combinations; if a basic model spans multiple categories or subcategories listed in table 2, multiple testing requirements apply. For each basic model that includes only one individual model/combination, test that individual model/combination.

Table 2 to Paragraph (b)(2)(i)

Category | Equipment subcategory | Must test: | With:

Single-Package Unit | Single-Package AC (including Space-Constrained) Single-Package HP (including Space-Constrained) | The individual model with the lowest seasonal energy efficiency ratio 2 (SEER2) (when testing in accordance with appendix M1 to subpart B of 10 CFR part 430) or seasonal cooling and off-mode rating efficiency (SCORE) (when testing in accordance with appendix M2 to subpart. B of 10 CFR part 430) | N/A.

Outdoor Unit and Indoor Unit (Distributed in Commerce by OUM) | Single-Split-System AC with Single-Stage or Two-Stage Compressor (including Space-Constrained and Small-Duct, High Velocity Systems (SDHV)) | The model of outdoor unit | A model of coil-only indoor unit.

Single-Split-System HP with Single-Stage or Two-Stage Compressor (including Space-Constrained and SDHV) | The model of outdoor unit | A model of indoor unit.

Single-Split System AC or HP with Other Than Single-Stage or Two-Stage Compressor having a coil-only individual combination (including Space-Constrained and SDHV) | The model of outdoor unit | A model of coil-only indoor unit.

Single-Split System AC or HP with Other Than Single-Stage or Two-Stage Compressor without a coil-only individual combination (including Space-Constrained and SDHV) | The model of outdoor unit | A model of indoor unit.

Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—non-SDHV (including Space-Constrained) | The model of outdoor unit | At a minimum, a “tested combination” composed entirely of non-ducted indoor units. For any models of outdoor units also sold with models of ducted indoor units, test a second “tested combination” composed entirely of ducted indoor units (in addition to the non-ducted combination). The ducted “tested combination” must comprise the highest static variety of ducted indoor unit distributed in commerce (i.e., conventional, mid-static, or low-static).

Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—SDHV | The model of outdoor unit | A “tested combination” composed entirely of SDHV indoor units.

Indoor Unit Only (Distributed in Commerce by ICM) | Single-Split-System Air Conditioner (including Space-Constrained and SDHV) | A model of indoor unit | The least efficient model of outdoor unit with which it will be paired where the least efficient model of outdoor unit is the model of outdoor unit in the lowest SEER2 combination (when testing under appendix M1 to subpart B of 10 CFR part 430) or SCORE combination (when testing under appendix M2 to subpart B of 10 CFR part 430) as certified by the OUM. If there are multiple models of outdoor unit with the same lowest SEER2 (when testing under appendix M1 to subpart B of 10 CFR part 430) or SCORE (when testing under appendix M2 to subpart B of 10 CFR part 430) represented value, the ICM may select one for testing purposes.

Single-Split-System Heat Pump (including Space-Constrained and SDHV) | Nothing, as long as an equivalent air conditioner basic model has been tested. If an equivalent air conditioner basic model has not been tested, must test a model of indoor unit

Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—SDHV | A model of indoor unit | A “tested combination” composed entirely of SDHV indoor units, where the outdoor unit is the least efficient model of outdoor unit with which the SDHV indoor unit will be paired. The least efficient model of outdoor unit is the model of outdoor unit in the lowest SEER2 combination (when testing under appendix M1 to subpart B of 10 CFR part 430) or SCORE combination (when testing under appendix M2 to subpart B of 10 CFR part 430) as certified by the OUM. If there are multiple models of outdoor unit with the same lowest SEER2 represented value (when testing under appendix M1 to subpart B of 10 CFR part 430) or SCORE represented value (when testing under appendix M2 to subpart B of 10 CFR part 430), the ICM may select one for testing purposes.

Outdoor Unit with No Match | The model of outdoor unit | A model of coil-only indoor unit meeting the requirements of section 4 of appendix M1 (when testing under appendix M1 to subpart B of 10 CFR part 430); or meeting the requirements of section 3 of appendix M2 (when testing under appendix M2 to subpart B of 10 CFR part 430).

(ii) When testing in accordance with appendix M1 to subpart B of 10 CFR part 430, each individual model/combination (or “tested combination”) identified in table 2 to paragraph (b)(2)(i) of this section is not required to be tested for PW,OFF. Instead, at a minimum, among individual models/combinations with similar off-mode construction (even spanning different models of outdoor units), a manufacturer must test at least one individual model/combination for PW,OFF.

(iii) When testing in accordance with appendix M2 to subpart B of 10 CFR part 430 and determining SCORE and SHORE, each individual model/combination (or “tested combination”) identified in table 2 to paragraph (b)(2)(i) of this section is not required to be tested for values of P1 (off-mode power in shoulder season) and P2 (off-mode power in heating Season). Instead, at a minimum, among individual models/combinations with similar off-mode construction (even spanning different models of outdoor units), a manufacturer must test at least one individual model/combination, for which P1 and P2 are the most consumptive.

(3) Sampling plans and represented values. For individual models (for single-package systems) or individual combinations (for split-systems, including “tested combinations” for multi-split, multi-circuit, and multi-head mini-split systems) with represented values determined through testing, each individual model/combination (or “tested combination”) must have a sample of sufficient size tested in accordance with the applicable provisions of this subpart. For heat pumps (other than heating-only heat pumps), all units of the sample population must be tested in both the cooling and heating modes and the results used for determining all representations. The represented values for any individual model/combination must be assigned such that:

(i) Off-Mode. Any represented value of power consumption or other measure of energy consumption for which consumers would favor lower values must be greater than or equal to the higher of:

(A) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the i th sample; Or,

(B) The upper 90 percent confidence limit (UCL) of the true mean divided by 1.05, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.90 is the t statistic for a 90 percent one-tailed confidence interval with n−1 degrees of freedom (from appendix D). Round represented values of off-mode power consumption to the nearest watt.

(ii) EER2, SEER2, HSPF2, SCORE, EER, and SHORE. Any represented value of the energy efficiency or other measure of energy consumption for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the ith sample; or,

(B) The lower 90 percent confidence limit (LCL) of the true mean divided by 0.95, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.90 is the t statistic for a 90 percent one-tailed confidence interval with n−1 degrees of freedom (from appendix D). Round represented values of EER2, SEER2, HSPF2, EER, SCORE, and SHORE to the nearest 0.05.

(iii) Cooling Capacity and Heating Capacity. The represented values of cooling capacity and heating capacity must each be a self-declared value that is:

(A) Less than or equal to the lower of:

(1) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the ith sample; or,

(2) The lower 90 percent confidence limit (LCL) of the true mean divided by 0.95, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.90 is the t statistic for a 90 percent one-tailed confidence interval with n−1 degrees of freedom (from appendix D).

(B) Rounded according to:

(1) To the nearest 100 Btu/h if cooling capacity or heating capacity is less than 20,000 Btu/h,

(2) To the nearest 200 Btu/h if cooling capacity or heating capacity is greater than or equal to 20,000 Btu/h but less than 38,000 Btu/h, and

(3) To the nearest 500 Btu/h if cooling capacity or heating capacity is greater than or equal to 38,000 Btu/h and less than 65,000 Btu/h.

(c) Determination of represented values for all other individual models/combinations besides those specified in paragraph (b)(2) of this section—(1) All basic models except outdoor units with no match and multi-split systems, multi-circuit systems, and multi-head mini-split systems. (i) For every individual model/combination within a basic model other than the individual model/combination required to be tested pursuant to paragraph (b)(2) of this section, either—

(A) A sample of sufficient size, comprised of production units or representing production units, must be tested as complete systems with the resulting represented values for the individual model/combination obtained in accordance with paragraphs (b)(1) and (3) of this section; or

(B) The represented values of the measures of energy efficiency or energy consumption through the application of an AEDM in accordance with paragraph (d) of this section and § 429.70. An AEDM may only be used to determine represented values for individual models or combinations in a basic model (or separate approved refrigerants within an individual combination) other than the individual model or combination(s) required for mandatory testing under paragraph (b)(2) of this section.

(ii) When testing in accordance with appendix M1 to subpart B of 10 CFR part 430, for every individual model/combination within a basic model tested pursuant to paragraph (b)(2) of this section, but for which PW,OFF testing was not conducted, the represented value of PW,OFF may be assigned through, either:

(A) The testing result from an individual model/combination of similar off-mode construction; or

(B) The application of an AEDM in accordance with paragraph (d) of this section and § 429.70.

(2) Outdoor units with no match. All models of outdoor units with no match within a basic model must be tested. No model of outdoor unit with no match may be rated with an AEDM, other than to determine the represented values for models using approved refrigerants other than the one used in testing.

(3) For multi-split systems, multi-circuit systems, and multi-head mini-split systems. The following applies:

(i) When testing in accordance with appendix M1 to subpart B of 10 CFR part 430, or appendix M2 to subpart B of 10 CFR part 430, for basic models that include additional varieties of ducted indoor units (i.e., conventional, low-static, or mid-static) other than the one for which representation is required in paragraph (a)(1) of this section, if a manufacturer chooses to make a representation, the manufacturer must conduct testing of a tested combination according to the requirements in paragraph (b)(3) of this section.

(ii) When testing in accordance with appendix M1 to subpart B of 10 CFR part 430, or appendix M2 to subpart B of 10 CFR part 430, for basic models that include mixed combinations of indoor units (any two kinds of non-ducted, low-static, mid-static, and conventional ducted indoor units), the represented value for the mixed combination is the mean of the represented values for the individual component combinations as determined in accordance with paragraph (b)(3) of this section.

(iii) When testing in accordance with appendix M1 to subpart B of 10 CFR part 430, or appendix M2 to subpart B of 10 CFR part 430, for basic models including mixed combinations of SDHV and another kind of indoor unit (any of non-ducted, low-static, mid-static, and conventional ducted), the represented value for the mixed SDHV/other combination is the mean of the represented values for the SDHV and other tested combination as determined in accordance with paragraph (b)(3) of this section.

(iv) All other individual combinations of models of indoor units for the same model of outdoor unit for which the manufacturer chooses to make representations must be rated as separate basic models, and the provisions of paragraphs (b)(1) through (3) and (c)(3)(i) through (iii) of this section apply.

(v) When testing in accordance with appendix M1 to subpart B of 10 CFR part 430, and with respect to PW,OFF only, for every individual combination (or “tested combination”) within a basic model tested pursuant to paragraph (b)(2) of this section, but for which PW,OFF testing was not conducted, the representative values of PW,OFF may be assigned through either:

(A) The testing result from an individual model or combination of similar off-mode construction, or

(B) Application of an AEDM in accordance with paragraph (d) of this section and § 429.70.

(d) Alternative efficiency determination methods. In lieu of testing, represented values of efficiency or consumption may be determined through the application of an AEDM pursuant to the requirements of § 429.70(e) and the provisions of this section.

(1) Power or energy consumption. Any represented value of the average off mode power consumption or other measure of energy consumption of an individual model/combination for which consumers would favor lower values must be greater than or equal to the output of the AEDM but no greater than the standard.

(2) Energy efficiency. Any represented value of the EER2, SEER2, HSPF2, EER, SCORE and SHORE, or other measure of energy efficiency of an individual model/combination for which consumers would favor higher values must be less than or equal to the output of the AEDM but no less than the standard.

(3) Cooling capacity. The represented value of cooling capacity of an individual model/combination must be no greater than the cooling capacity output simulated by the AEDM.

(4) Heating capacity. The represented value of heating capacity of an individual model/combination must be no greater than the heating capacity output simulated by the AEDM.

(e) Certification reports. This paragraph specifies the information that must be included in a certification report.

(1) General. The requirements of § 429.12 apply to central air conditioners and heat pumps.

(2) Public product-specific information. Pursuant to § 429.12(b)(13), for each individual model (for single-package systems) or individual combination (for split-systems, including outdoor units with no match and “tested combinations” for multi-split, multi-circuit, and multi-head mini-split systems), a certification report must include the following public product-specific information: When certifying compliance with January 1, 2015, energy conservation standards, the seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/W-h)) or when certifying compliance with January 1, 2023, energy conservation standards, seasonal energy efficiency ratio 2 (SEER2 in British thermal units per Watt-hour (Btu/W-h)); the average off mode power consumption (PW,OFF in Watts); the cooling capacity in British thermal units per hour (Btu/h); the region(s) in which the basic model can be sold; when certifying compliance with January 1, 2023, energy conservation standards, the kind(s) of air conditioner or heat pump associated with the minimum external static pressure used in testing or rating (ceiling-mount, wall-mount, mobile home, low-static, mid-static, small duct high velocity, space-constrained, or conventional/not otherwise listed); and

(i) For heat pumps, when certifying compliance with January 1, 2015, energy conservation standards, the heating seasonal performance factor (HSPF in British thermal units per Watt-hour (Btu/W-h)) or, when certifying compliance with January 1, 2023, energy conservation standards, heating seasonal performance factor 2 (HSPF2 in British thermal units per Watt-hour (Btu/W-h));

(ii) For central air conditioners (excluding space-constrained products), when certifying compliance with January 1, 2015, energy conservation standards, the energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/W-h)) from the A or A2 test, whichever applies, or when certifying compliance with January 1, 2023, energy conservation standards, the energy efficiency ratio 2 (EER2 in Btu/W-h);

(iii) For single-split-systems, whether the represented value is for a coil-only or blower coil system;

(iv) For multi-split, multiple-circuit, and multi-head mini-split systems (including VRF and SDHV), when certifying compliance with January 1, 2015, energy conservation standards, whether the represented value is for a non-ducted, ducted, mixed non-ducted/ducted system, SDHV, mixed non-ducted/SDHV system, or mixed ducted/SDHV system;

(v) For all split systems including outdoor units with no match, the refrigerant.

(3) Basic and individual model numbers. The basic model number and individual model number(s) required to be reported under § 429.12(b)(6) must consist of the following:

Equipment type | Basic model number | Individual model number(s)

1 | 2 | 3

Single-Package (including Space-Constrained) | Number unique to the basic model | Package | N/A | N/A.

Single-Split System (including Space-Constrained and SDHV) | Number unique to the basic model | Outdoor Unit | Indoor Unit | If applicable—Air Mover (could be same as indoor unit if fan is part of indoor unit model number).

Multi-Split, Multi-Circuit, and Multi-Head Mini-Split System (including Space-Constrained and SDHV) | Number unique to the basic model | Outdoor Unit | When certifying a basic model based on tested combination(s): * * * When certifying an individual combination: Indoor Unit(s) | If applicable—When certifying a basic model based on tested combination(s): * * *. When certifying an individual combination: Air Mover(s).

Outdoor Unit with No Match | Number unique to the basic model | Outdoor Unit | N/A | N/A.

(4) Additional product-specific information. Pursuant to § 429.12(b)(13), for each individual model/combination (including outdoor units with no match and “tested combinations”), a certification report must include the following additional product-specific information: The cooling full load air volume rate for the system or for each indoor unit as applicable (in cubic feet per minute of standard air (scfm)); the air volume rates that represent normal operation for other test conditions including minimum cooling air volume rate, intermediate cooling air volume rate, full load heating air volume rate, minimum heating air volume rate, intermediate heating air volume rate, and nominal heating air volume rate (scfm) for the system or for each indoor unit as applicable, if different from the cooling full load air volume rate; whether the individual model uses a fixed orifice, thermostatic expansion valve, electronic expansion valve, or other type of metering device; the duration of the compressor break-in period, if used; whether the optional tests were conducted to determine the CDc value used to represent cooling mode cycling losses or whether the default value was used; the temperature at which the crankcase heater with controls is designed to turn on, if applicable; whether an inlet plenum was installed during testing; the duration of the indoor fan time delay, if used; and

(i) For heat pumps, whether the optional tests were conducted to determine the CDh value or whether the default value was used; and the maximum time between defrosts as allowed by the controls (in hours);

(ii) For multi-split, multiple-circuit, and multi-head mini-split systems, the number of indoor units tested with the outdoor unit; the nominal cooling capacity of each indoor unit and outdoor unit in the combination; and the indoor units that are not providing heating or cooling for part-load tests;

(iii) For ducted systems having multiple indoor fans within a single indoor unit, the number of indoor fans; the nominal cooling capacity of the indoor unit and outdoor unit; which fan(s) operate to attain the full-load air volume rate when controls limit the simultaneous operation of all fans within the single indoor unit; and the allocation of the full-load air volume rate to each operational fan when different capacity blowers are connected to the common duct;

(iv) For blower coil systems, the airflow-control settings associated with full load cooling operation; and the airflow-control settings or alternative instructions for setting fan speed to the speed upon which the rating is based;

(v) For models with time-adaptive defrost control, the frosting interval to be used during Frost Accumulation tests and the procedure for manually initiating the defrost at the specified time;

(vii) For variable-speed models, the compressor frequency set points, and the required dip switch/control settings for step or variable components;

(viii) For variable-speed heat pumps, whether the H1N or H12 test speed is the same as the H32 test speed; the compressor frequency that corresponds to maximum speed at which the system controls would operate the compressor in normal operation in a 17 °F ambient temperature; and when certifying compliance with January 1, 2023, energy conservation standards, whether the optional 5 °F very low temperature heating mode test was used to characterize performance at temperatures below 17 °F (except for triple-capacity northern heat pumps, for which the very low temperature test is required,) and whether the alternative test required for minimum-speed-limiting variable-speed heat pumps was used;

(ix) For models of outdoor units with no match, the following characteristics of the indoor coil: The face area, the coil depth in the direction of airflow, the fin density (fins per inch), the fin material, the fin style, the tube diameter, the tube material, and the numbers of tubes high and deep; and

(x) For central air conditioners and heat pumps that have two-capacity compressors that lock out low capacity operation for cooling at higher outdoor temperatures and/or heating at lower outdoor temperatures, the outdoor temperature(s) at which the unit locks out low capacity operation.

(f) Represented values for the Federal Trade Commission. Use the following represented value determinations to meet the requirements of the Federal Trade Commission.

(1) Annual operating cost—cooling. Determine the represented value of estimated annual operating cost for cooling-only units or the cooling portion of the estimated annual operating cost for air-source heat pumps that provide both heating and cooling, as follows:

(i) When using appendix M1 to subpart B of 10 CFR part 430, the product of:

(A) The quotient of the represented value of cooling capacity, in Btu's per hour as determined in paragraph (b)(3)(iii) of this section, and multiplied by 0.93 for variable speed heat pumps only, divided by the represented value of SEER2, in Btu's per watt-hour, as determined in paragraph (b)(3)(ii) of this section.

(B) The representative average use cycle for cooling of 1,000 hours per year;

(C) A conversion factor of 0.001 kilowatt per watt; and

(D) The representative average unit cost of electricity in dollars per kilowatt-hour as provided pursuant to section 323(b)(2) of the Act.

(ii) When using appendix M2 to subpart B of 10 CFR part 430, the product of:

(A) The quotient of the represented value of cooling capacity, in Btu's per hour as determined in paragraph (b)(3)(iii) of this section, and multiplied by 0.93 for variable speed heat pumps only, divided by the represented value of SCORE, in Btu's per watt-hour, as determined in paragraph (b)(3)(ii) of this section.

(B) The representative average use cycle for cooling of 1,457 hours per year;

(C) A conversion factor of 0.001 kilowatt per watt; and

(D) The representative average unit cost of electricity in dollars per kilowatt-hour as provided pursuant to section 323(b)(2) of the Act.

(2) Annual operating cost—heating. Determine the represented value of estimated annual operating cost for air-source heat pumps that provide only heating or for the heating portion of the estimated annual operating cost for air-source heat pumps that provide both heating and cooling, as follows:

(i) When using appendix M1 to subpart B of 10 CFR part 430, the product of:

(A) The quotient of the represented value of cooling capacity (for air-source heat pumps that provide both cooling and heating) in Btu's per hour, as determined in paragraph (b)(3)(iii) of this section, or the represented value of heating capacity (for air-source heat pumps that provide only heating), as determined in paragraph (b)(3)(iii) of this section, divided by the represented value of HSPF2, in Btu's per watt-hour, calculated for Region IV, as determined in paragraph (b)(3)(ii) of this section;

(B) The representative average use cycle for heating of 1,572 hours per year;

(C) The adjustment factor of 1.15 (for heat pumps that are not variable speed) or 1.07 (for heat pumps that are variable speed), which serves to adjust the calculated design heating requirement and heating load hours to the actual load experienced by a heating system;

(D) A conversion factor of 0.001 kilowatt per watt; and

(E) The representative average unit cost of electricity in dollars per kilowatt-hour as provided pursuant to section 323(b)(2) of the Act;

(ii) When using appendix M2 to subpart B of 10 CFR part 430, the product of:

(A) The quotient of the represented value of cooling capacity (for air-source heat pumps that provide both cooling and heating) in Btu's per hour, as determined in paragraph (b)(3)(iii) of this section, or the represented value of heating capacity (for air-source heat pumps that provide only heating), as determined in paragraph (b)(3)(iii) of this section, divided by the represented value of SHORE, in Btu's per watt-hour, as determined in paragraph (b)(3)(ii) of this section;

(B) The representative average use cycle for heating of 972 hours per year;

(C) The adjustment factor of 1.15 (for heat pumps that are not variable speed) or 1.07 (for heat pumps that are variable speed), which serves to adjust the calculated design heating requirement and heating load hours to the actual load experienced by a heating system;

(D) A conversion factor of 0.001 kilowatt per watt; and

(E) The representative average unit cost of electricity in dollars per kilowatt-hour as provided pursuant to section 323(b)(2) of the Act;

(3) Annual operating cost—total. Determine the represented value of estimated annual operating cost for air-source heat pumps that provide both heating and cooling by calculating the sum of the quantity determined in paragraph (f)(1) of this section added to the quantity determined in paragraph (f)(2) of this section.

(4) Regional annual operating cost—cooling. Determine the represented value of estimated regional annual operating cost for cooling-only units or the cooling portion of the estimated regional annual operating cost for air-source heat pumps that provide both heating and cooling as follows:

(i) When using appendix M1 to subpart B of 10 CFR part 430, the product of:

(A) The quotient of the represented value of cooling capacity, in Btu's per hour as determined in paragraph (b)(3)(iii) of this section, and multiplied by 0.93 for variable speed heat pumps only, divided by the represented value of SEER2, in Btu's per watt-hour, as determined in paragraph (b)(3)(ii) of this section;

(B) The estimated number of regional cooling load hours per year determined from the following table:

Table 4 to Paragraph (f)(4)(i)(B)

Climatic region | Regional cooling load hours

I | 2,400

II | 1,800

III | 1,200

IV | 800

V | 400

VI | 200

(C) A conversion factor of 0.001 kilowatts per watt; and

(D) The representative average unit cost of electricity in dollars per kilowatt-hour as provided pursuant to section 323(b)(2) of the Act.

(ii) When using appendix M2 to subpart B of part 430, regional annual operating cost for cooling-only units or the cooling portion of the estimated regional annual operating cost air-source heat pumps that provide both heating and cooling, does not apply.

(5) Regional annual operating cost—heating. Determine the represented value of estimated regional annual operating cost for air-source heat pumps that provide only heating or for the heating portion of the estimated regional annual operating cost for air-source heat pumps that provide both heating and cooling as follows:

(i) When using appendix M1 to subpart B of 10 CFR part 430, the product of:

(A) The estimated number of regional heating load hours per year determined from the following table:

Table 5 to Paragraph (f)(5)(i)(A)

Climatic region | Regional cooling load hours

I | 493

II | 857

III | 1,247

IV | 1,701

V | 2,202

VI | 1,842

(B) The quotient of the represented value of cooling capacity (for air-source heat pumps that provide both cooling and heating) in Btu's per hour, as determined in paragraph (b)(3)(iii)(C) of this section, or the represented value of heating capacity (for air-source heat pumps that provide only heating), as determined in paragraph (b)(3)(iii) of this section, divided by the represented value of HSPF2, in Btu's per watt-hour, calculated for the appropriate generalized climatic region of interest, and determined in paragraph (b)(3)(iii) of this section;

(C) The adjustment factor of 1.15 (for heat pumps that are not variable speed) or 1.07 (for heat pumps that are variable speed), which serves to adjust the calculated design heating requirement and heating load hours to the actual load experienced by a heating system;

(D) A conversion factor of 0.001 kilowatts per watt; and

(E) The representative average unit cost of electricity in dollars per kilowatt-hour as provided pursuant to section 323(b)(2) of the Act.

(ii) When using appendix M2 to subpart B of 10 CFR part 430, regional annual operating cost for air-source heat pumps that provide only heating or for the heating portion, does not apply.

(6) Regional annual operating cost—total. For air-source heat pumps that provide both heating and cooling, the estimated regional annual operating cost is the sum of the quantity determined in paragraph (f)(4) of this section added to the quantity determined in paragraph (f)(5) of this section.

(7) Annual operating cost—rounding. Round any represented values of estimated annual operating cost determined in paragraphs (f)(1) through (6) of this section to the nearest dollar per year.

[81 FR 37049, June 8, 2016, as amended at 81 FR 55112, Aug. 18, 2016; 82 FR 1468, Jan. 5, 2017; 86 FR 68393, Dec. 2, 2021; 87 FR 64583, Oct. 25, 2022; 89 FR 82060, Oct. 9, 2024]; 90 FR 1273, Jan. 7, 2025; 90 FR 43378, Sept. 9, 2025]

§ 429.17 Water heaters.

Note 1 to § 429.17:

Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.17 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.

(a) Determination of represented value. (1) Manufacturers must determine the represented value for each water heater by applying an AEDM in accordance with 10 CFR 429.70 or by testing for the uniform energy factor, in conjunction with the applicable sampling provisions as follows:

(i) If the represented value is determined through testing, the general requirements of 10 CFR 429.11 are applicable; and

(ii) For each basic model selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—

(A) Any represented value of the estimated annual operating cost or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(1) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the ith sample;

Or,

(2) The upper 95-percent confidence limit (UCL) of the true mean divided by 1.10, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95-percent one-tailed confidence interval with n-1 degrees of freedom (from Appendix A).

(B) Any represented value of the uniform energy factor, or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(1) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the ith sample;

Or,

(2) The lower 95-percent confidence limit (LCL) of the true mean divided by 0.90, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95-percent one-tailed confidence interval with n-1 degrees of freedom (from Appendix A).

(C) Any represented value of the rated storage volume must be equal to the mean of the measured storage volumes of all the units within the sample. Any represented value of the effective storage volume must be equal to the mean of the effective storage volumes of all the units within the sample.

(D) Any represented value of first-hour rating or maximum gallons per minute (GPM) must be equal to the mean of the measured first-hour ratings or measured maximum GPM ratings, respectively, of all the units within the sample.

(E) For an electric storage water heater that has a permanent mode or setting in which it is capable of heating and storing water above 135 °F, where permanent mode or setting means a mode of operation that is continuous and does not require any external consumer intervention to maintain for longer than 120 hours, except for those that meet the definition of “heat pump-type” water heater at § 430.2 of this chapter, whose rated storage volumes are less than 20 gallons or greater than 55 gallons, or that are only capable of heating the stored water above 135 °F in response to instructions received from a utility or third-party demand-response program, the following applies:

(1) To demonstrate compliance with the energy conservation standards in § 430.32(d)(1) of this chapter, any represented value of uniform energy factor shall be determined based on testing in accordance with section 5.1.1 of appendix E to subpart B of 10 CFR part 430.

(2) To demonstrate compliance with the energy conservation standards in § 430.32(d)(2) of this chapter, any represented value of uniform energy factor shall be determined based on high temperature testing in accordance with section 5.1.2 of appendix E to subpart B of 10 CFR part 430.

(b) Certification reports. (1) The requirements of 10 CFR 429.12 are applicable to water heaters; and

(2) Pursuant to 10 CFR 429.12(b)(13), a certification report shall include the following public, product-specific information:

(i) For storage-type water heater basic models: The uniform energy factor (UEF, rounded to the nearest 0.01), the rated storage volume in gallons (rounded to the nearest 1 gal), the first-hour rating in gallons (gal, rounded to the nearest 1 gal), and the recovery efficiency in percent (%, rounded to the nearest 1%);

(ii) For instantaneous-type water heater basic models: The uniform energy factor (UEF, rounded to the nearest 0.01), the rated storage volume in gallons (gal, rounded to the nearest 1 gal), the maximum gallons per minute (gpm, rounded to the nearest 0.1 gpm), and the recovery efficiency in percent (%, rounded to the nearest 1%); and

(iii) For grid-enabled water heater basic models: The uniform energy factor (UEF, rounded to the nearest 0.01), the rated storage volume in gallons (gal, rounded to the nearest 1 gal), the first-hour rating in gallons (gal, rounded to the nearest 1 gal), the recovery efficiency in percent (%, rounded to the nearest 1%), a declaration that the model is a grid-enabled water heater, whether it is equipped at the point of manufacture with an activation lock, and whether it bears a permanent label applied by the manufacturer that advises purchasers and end-users of the intended and appropriate use of the product.

(c) Reporting of annual shipments for grid-enabled water heaters. Pursuant to 42 U.S.C. 6295(e)(6)(C)(i), manufacturers of grid-enabled water heaters must report the total number of grid-enabled water heater units shipped for sale in the U.S. by the manufacturer for the previous calendar year (i.e., January 1st through December 31st), as well as the calendar year that the shipments cover, starting on or before May 1, 2023, and annually on or before May 1 each year thereafter. This information shall be reported separately from the certification report required under paragraph (b)(2) of this section, and must be submitted to DOE in accordance with the submission procedures set forth in § 429.12(h). DOE will consider the annual reported shipments to be confidential business information without the need for the manufacturer to request confidential treatment of the information pursuant to § 429.7(c).

[81 FR 96235, Dec. 29, 2016, as amended at 87 FR 43977, July 22, 2022; 89 FR 37941 May 6, 2024]

§ 429.18 Consumer furnaces.

Note 1 to § 429.18:

Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.18 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to residential furnaces; and

(2)(i) For each basic model of furnaces, other than basic models of those sectional cast-iron boilers (which may be aggregated into groups having identical intermediate sections and combustion chambers) a sample of sufficient size shall be randomly selected and tested to ensure that—

(A) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(1) The mean of the sample, where:

Or,

(2) The upper 97 1/2 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and

(B) Any represented value of the annual fuel utilization efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(1) The mean of the sample, where:

Or,

(2) The lower 97 1/2 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(ii) For the lowest capacity basic model of a group of basic models of those sectional cast-iron boilers having identical intermediate sections and combustion chambers, a sample of sufficient size shall be randomly selected and tested to ensure that—

(A) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(1) The mean of the sample, where:

Or,

(2) The upper 97 1/2 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and

(B) Any represented value of the fuel utilization efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(1) The mean of the sample, where:

Or,

(2) The lower 97 1/2 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(iii) For the highest capacity basic model of a group of basic models of those sectional cast-iron boilers having identical intermediate sections and combustion chambers, a sample of sufficient size shall be randomly selected and tested to ensure that—

(A) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(1) The mean of the sample, where:

Or,

(2) The upper 97 1/2 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and

(B) Any represented value of the fuel utilization efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(1) The mean of the sample, where:

Or,

(2) The lower 97 1/2 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(iv) For each basic model or capacity other than the highest or lowest of the group of basic models of sectional cast-iron boilers having identical intermediate sections and combustion chambers, represented values of measures of energy consumption shall be determined by either—

(A) A linear interpolation of data obtained for the smallest and largest capacity units of the family, or

(B) Testing a sample of sufficient size to ensure that:

(1) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(i) The mean of the sample, where:

Or,

(ii) The upper 97 1/2 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and

(2) Any represented value of the energy factor or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(i) The mean of the sample, where:

Or,

(ii) The lower 97 1/2 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(v) Whenever measures of energy consumption determined by linear interpolation do not agree with measures of energy consumption determined by actual testing, the values determined by testing must be used for certification.

(vi) In calculating the measures of energy consumption for each unit tested, use the design heating requirement corresponding to the mean of the capacities of the units of the sample.

(vii) The represented value of annual fuel utilization efficiency must be rounded to the nearest one-tenth of a percentage point. The represented values of standby mode power and off mode power must be rounded to the nearest one-tenth of a watt.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to residential furnaces; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:

(i) For consumer furnaces and boilers: The annual fuel utilization efficiency (AFUE) in percent (%) and the input capacity in British thermal units per hour (Btu/h).

(ii) For non-weatherized oil-fired furnaces (including mobile home furnaces), electric furnaces, and boilers: The standby mode power consumption (PW,SB) and off mode power consumption (PW,OFF) in watts.

(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information:

(i) For cast-iron sectional boilers: A declaration of whether certification is based on linear interpolation or testing.

(ii) For gas-fired hot water boilers and gas-fired steam boilers: A declaration that the manufacturer has not incorporated a constant-burning pilot.

(iii) For gas-fired hot water boilers, oil-fired hot water boilers, and electric hot water boilers: Whether the boiler is equipped with tankless domestic water heating coils, and if not, a declaration that the manufacturer has incorporated an automatic means for adjusting water temperature).

(4) For multi-position furnaces, the annual fuel utilization efficiency (AFUE) reported for each basic model must be based on testing in the least efficient configuration. Manufacturers may also report and make representations of additional AFUE values based on testing in other configurations.

[76 FR 12451, Mar. 7, 2011; 76 FR 24765, May 2, 2011, as amended at 76 FR 38292, June 30, 2011; 81 FR 2646, Jan. 15, 2016; 87 FR 43977, July 22, 2022]

§ 429.19 Dishwashers.

Note 1 to § 429.19:

Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.19 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to dishwashers; and

(2) For each basic model of dishwashers, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of estimated annual operating cost, energy or water consumption or other measure of energy or water consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

Or,

(B) The upper 97 1/2 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and

(ii) Any represented value of the energy or water factor or other measure of energy or water consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

Or,

(B) The lower 97 1/2 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(b) Certification reports. (1) The requirements of § 429.12 are applicable to dishwashers; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The estimated annual energy use in kilowatt hours per year (kWh/yr), the water consumption in gallons per cycle, and the capacity in number of place settings as specified in ANSI/AHAM DW-1-2010 (incorporated by reference, see § 429.4).

(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information—

(i) The presence of a soil sensor, and if yes, the number of cycles required to reach calibration;

(ii) The water inlet temperature used for testing in degrees Fahrenheit ( °F);

(iii) The cycle selected for the energy test and whether that cycle is soil-sensing;

(iv) The options selected for the energy test;

(v) Presence of a built-in water softening system, and if yes, the energy use in kilowatt-hours and the water use in gallons required for each regeneration of the water softening system, the number of regeneration cycles per year, and data and calculations used to derive these values; and

(vi) Indication of whether Cascade Complete Powder or Cascade with the Grease Fighting Power of Dawn was used as the detergent formulation. When certifying dishwashers, other than water re-use dishwashers, according to appendix C1 to subpart B of part 430 of this chapter:

(A) Before July 17, 2023, Cascade Complete Powder detergent may be used as the basis for certification in conjunction with the detergent dosing methods specified in either section 2.5.2.1.1 or section 2.5.2.1.2 of appendix C1 to subpart B of part 430. Cascade with the Grease Fighting Power of Dawn detergent may be used as the basis for certification only in conjunction with the detergent dosing specified in section 2.5.2.1.1 of appendix C1.

(B) Beginning July 17, 2023, Cascade Complete Powder detergent may be used as the basis for certification of newly certified basic models only in conjunction with the detergent dosing method specified in section 2.5.2.1.2 of appendix C1 to subpart B of part 430. Cascade with the Grease Fighting Power of Dawn detergent may be used as the basis for certification only in conjunction with the detergent dosing specified in section 2.5.2.1.1 of appendix C1. Manufacturers may maintain existing basic model certifications made prior to July 17, 2023, consistent with the provisions of paragraph (b)(3)(vi)(A) of this chapter.

[76 FR 12451, Mar. 7, 2011; 76 FR 24766, May 2, 2011, as amended at 77 FR 31962, May 30, 2012; 77 FR 65977, Oct. 31, 2012; 81 FR 90118, Dec. 13, 2016; 87 FR 43977, July 22, 2022; 88 FR 48357, July 27, 2023; 89 FR 82061, Oct. 9, 2024; 90 FR 43379, Sept. 9, 2025]

§ 429.20 Residential clothes washers.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to residential clothes washers; and

(2) For each basic model of residential clothes washers, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of the integrated water factor, the estimated annual operating cost, the energy or water consumption, or other measure of energy or water consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

Or,

(B) The upper 97 1/2 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and

(ii) Any represented value of the integrated modified energy factor, energy efficiency ratio, water efficiency ratio, or other measure of energy or water consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

Or,

(B) The lower 97 1/2 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(3) The clothes container capacity of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the measured clothes container capacity, C, of all tested units of the basic model.

(4) The remaining moisture content (RMC) of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the final RMC value measured for all tested units of the basic model.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to residential clothes washers; and

(2) Pursuant to § 429.12(b)(13), a certification report shall contain the following public product-specific information:

(i) For residential clothes washers tested in accordance with appendix J1: The modified energy factor (MEF) in cubic feet per kilowatt hour per cycle (cu ft/kWh/cycle), the capacity in cubic feet (cu ft), the corrected remaining moisture content (RMC) expressed as a percentage, and, for standard-size residential clothes washers, a water factor (WF) in gallons per cycle per cubic foot (gal/cycle/cu ft).

(ii) For residential clothes washers tested in accordance with appendix J2: The integrated modified energy factor (IMEF) in cu ft/kWh/cycle, the integrated water factor (IWF) in gal/cycle/cu ft, the capacity in cu ft, the corrected remaining moisture content (RMC) expressed as a percentage, and the type of loading (top-loading or front-loading).

(3) Pursuant to § 429.12(b)(13), a certification report must include the following additional product-specific information: A list of all cycle selections comprising the complete energy test cycle for each basic model.

(c) Reported values. Values reported pursuant to this subsection must be rounded as follows: MEF and IMEF to the nearest 0.01 cu ft/kWh/cycle; WF and IWF to the nearest 0.1 gal/cycle/cu ft; RMC to the nearest 0.1 percentage point; and clothes container capacity to the nearest 0.1 cu ft.

[76 FR 12451, Mar. 7, 2011; 76 FR 24767, May 2, 2011, as amended at 77 FR 13936, Mar. 7, 2012; 77 FR 32379, May 31, 2012; 80 FR 46760, Aug. 5, 2015; 87 FR 33379, June 1, 2022; 89 FR 82061, Oct. 9, 2024; 90 FR 43379, Sept. 9, 2025]

§ 429.21 Residential clothes dryers.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to clothes dryers; and

(2) For each basic model of clothes dryers a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

Or,

(B) The upper 97 1/2 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and

(ii) Any represented value of the energy factor, combined energy factor, or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

Or,

(B) The lower 97 1/2 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(3) The capacity of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the capacities measured for each tested unit of the basic model.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to clothes dryers; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: When using appendix D1 to subpart B of part 430 of this chapter, the combined energy factor in pounds per kilowatt hours (lb/kWh), the capacity in cubic feet (cu ft), the voltage in volts (V) (for electric dryers only), an indication if the dryer has automatic termination controls, and the hourly Btu rating of the burner (for gas dryers only); when using appendix D2 to subpart B of part 430, the combined energy factor in pounds per kilowatt hours (lb/kWh), the capacity in cubic feet (cu ft), the voltage in volts (V) (for electric dryers only), an indication if the dryer has automatic termination controls, the hourly Btu rating of the burner (for gas dryers only), and a list of the cycle setting selections for the energy test cycle as recorded in section 3.4.7 of appendix D2 to subpart B of part 430.

(c) Reported values. Values reported pursuant to this section must be rounded as follows: CEF to the nearest 0.01 lb/kWh, capacity to the nearest 0.1 cu ft, voltage to the nearest V, and hourly Btu rating to the nearest Btu.

[76 FR 12451, Mar. 7, 2011; 76 FR 24767, May 2, 2011, as amended at 78 FR 49644, Aug. 14, 2013; 86 FR 56638, Oct. 8, 2021]

§ 429.22 Direct heating equipment.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to direct heating equipment; and

(2) (i) For each basic model of direct heating equipment (not including furnaces) a sample of sufficient size shall be randomly selected and tested to ensure that—

(A) Any represented value of estimated annual operating cost, energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(1) The mean of the sample, where:

Or,

(2) The upper 97 1/2 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and

(B) Any represented value of the fuel utilization efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(1) The mean of the sample, where:

Or,

(2) The lower 97 1/2 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(ii) In calculating the measures of energy consumption for each unit tested, use the design heating requirement corresponding to the mean of the capacities of the units of the sample.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to direct heating equipment; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: Direct heating equipment, the annual fuel utilization efficiency (AFUE) in percent (%), the mean input capacity in British thermal units per hour (Btu/h), and the mean output capacity in British thermal units per hour (Btu/h).

[76 FR 12451, Mar. 7, 2011; 76 FR 24768, May 2, 2011, as amended at 76 FR 38292, June 30, 2011]

§ 429.23 Cooking products.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to cooking products; and

(2) For each basic model of cooking products a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of estimated annual operating cost, standby mode power consumption, off mode power consumption, annual energy consumption, integrated annual energy consumption, or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(i) The mean of the sample, where:

and x is the sample mean; n is the number of samples; and xi is the i th sample;

Or,

(ii) The upper 97 1/2 percent confidence limit (UCL) of the true mean divided by 1.05, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.975 is the t statistic for a 97.5% one-tailed confidence interval with n-1 degrees of freedom (from appendix A).

(b) Certification reports. (1) The requirements of § 429.12 are applicable to conventional cooking tops, conventional ovens and microwave ovens; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: For conventional cooking tops and conventional ovens: the type of pilot light and a declaration that the manufacturer has incorporated the applicable design requirements. For microwave ovens, the average standby power in watts.

[76 FR 12451, Mar. 7, 2011; 76 FR 24769, May 2, 2011, as amended at 77 FR 65977, Oct. 31, 2012; 78 FR 4025, Jan. 18, 2013; 78 FR 36368, June 17, 2013; 81 FR 91445, Dec. 16, 2016]

§ 429.24 Pool heaters.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to pool heaters; and

(2) For each basic model of pool heater, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of the thermal efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(i) The mean of the sample, where:

Or,

(ii) The lower 97 1/2 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(b) Certification reports. (1) The requirements of § 429.12 are applicable to pool heaters; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The thermal efficiency in percent (%) and the input capacity in British thermal units per hour (Btu/h).

[76 FR 12451, Mar. 7, 2011; 76 FR 24769, May 2, 2011; 89 FR 82061, Oct. 9, 2024; 90 FR 43379, Sept. 9, 2025]

§ 429.25 Television sets.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to televisions; and

(2) For each basic model of television, samples shall be randomly selected and tested to ensure that—

(i) Any represented value of power consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

and x is the sample mean; n is the number of samples; and xi is the i th sample;

Or,

(B) For on mode power consumption, the upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t-statistic for a 95% one-tailed confidence interval with n−1 degrees of freedom (from appendix A of this subpart).

And

(C) For standby mode power consumption and power consumption measurements in modes other than on mode, the upper 90 percent confidence limit (UCL) of the true mean divided by 1.10, where:

and x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.90 is the t-statistic for a 90% one-tailed confidence interval with n−1 degrees of freedom (from appendix A of this subpart).

(ii) Any represented annual energy consumption of a basic model shall be determined by applying the AEC calculation in section 4 of appendix H to subpart B of part 430 of this chapter to the represented values of power consumption as calculated pursuant to paragraph (a)(2)(i) of this section.

(iii) Rounding requirements. The represented value of power consumption and the represented annual energy consumption shall be rounded as follows:

(A) For power consumption in the on and standby modes, the represented value shall be rounded according to the requirements specified in sections 4.1 and 4.3 of appendix H to subpart B of part 430 of this chapter.

(B) For annual energy consumption, the represented value shall be rounded according to the requirements specified in section 3.4 of appendix H to subpart B of part 430 of this chapter.

(b) [Reserved]

[78 FR 63840, Oct. 25, 2013, as amended at 88 FR 16109, Mar. 15, 2023]

§ 429.26 Fluorescent lamp ballasts.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to fluorescent lamp ballasts; and

(2) For each basic model of fluorescent lamp ballasts, a sample of sufficient size, not less than four, shall be randomly selected and tested to ensure that—

(i) Any represented value of the energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

Or,

(B) The upper 99 percent confidence limit (UCL) of the true mean divided by 1.01, where:

and

(ii) Any represented value of the ballast luminous efficiency, power factor, or other measure of the energy efficiency or energy consumption of a basic model for which consumers would favor a higher value must be less than or equal to the lower of:

(A) The mean of the sample, where:

Or,

(B) The lower 99 percent confidence limit (LCL) of the true mean divided by 0.99, where:

(iii) The represented value of average total lamp arc power must be equal to the mean of the sample,

Where:

x is the sample mean;

n is the number of units in the sample; and

xi is the ith unit.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to fluorescent lamp ballasts; and

(2) Pursuant to § 429.12(b)(13), a certification report must include the following public product-specific information: The ballast luminous efficiency, the average total lamp arc power, the power factor, the number of lamps operated by the ballast, and the type of lamps operated by the ballast (i.e., wattage, base, shape, diameter, and length).

(c) Rounding requirements. (1) Round ballast luminous efficiency to the nearest thousandths place.

(2) Round power factor to the nearest hundredths place.

(3) Round average total lamp arc power to the nearest tenth of a watt.

[76 FR 12451, Mar. 7, 2011; 76 FR 24769, May 2, 2011, as amended at 81 FR 25600, Apr. 29, 2016; 85 FR 56493, Sept. 14, 2020]

§ 429.27 General service fluorescent lamps.

Note 1 to § 429.27:

Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.27 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.

(a) Determination of Represented Value. Each manufacturer must determine represented values, which include certified ratings, for each basic model by testing, in accordance with the following sampling provisions.

(1) Units to be tested.

(i) When testing, use a sample comprised of production units. The same sample of units must be tested and used as the basis for representations for rated wattage, average lamp efficacy, color rendering index (CRI), and correlated color temperature (CCT).

(ii) For each basic model, randomly select and test a sample of sufficient size, but not less than 10 units, to ensure that represented values of average lamp efficacy are less than or equal to the lower of:

(A) The arithmetic mean of the sample: or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by .97, where:

(2) Any represented values of measures of energy efficiency or energy consumption for all individual models represented by a given basic model must be the same.

(3) Represented values of CCT, CRI and rated wattage must be equal to the arithmetic mean of the sample.

(b) Certification reports. (1) The requirements of § 429.12 apply to general service fluorescent lamps; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, average lamp efficacy in lumens per watt (lm/W), rated wattage in watts (W), CCT in Kelvin (K), and CRI.

(c) Rounding Requirements. (1) Round rated wattage to the nearest tenth of a watt.

(2) Round average lamp efficacy to the nearest tenth of a lumen per watt.

(3) Round CCT to the nearest 100 kelvin (K).

(4) Round CRI to the nearest whole number.

[87 FR 53637, Aug. 31, 2022]

§ 429.28 Faucets.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to faucets; and

(2) For each basic model of faucet, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of water consumption of a basic model for which consumers favor lower values shall be no less than the higher of the higher of:

(i) The mean of the sample, where:

Or,

(ii) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:

(b) Certification reports. (1) The requirements of § 429.12 are applicable to faucets; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: For non-metering faucets, the maximum water use in gallons per minute (gpm) rounded to the nearest 0.1 gallon; for metering faucets, the maximum water use in gallons per cycle (gal/cycle) rounded to the nearest 0.01 gallon; and for all faucet types, the flow water pressure in pounds per square inch (psi).

[76 FR 12451, Mar. 7, 2011; 76 FR 24771, May 2, 2011, as amended at 78 FR 62985, Oct. 23, 2013]

§ 429.29 Showerheads.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to showerheads; and

(2) For each basic model of a showerhead, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of water consumption of a basic model for which consumers favor lower values shall be greater than or equal to the higher of:

(i) The mean of the sample, where:

Or,

(ii) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:

(b) Certification reports. (1) The requirements of § 429.12 are applicable to showerheads; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum water use in gallons per minute (gpm) rounded to the nearest 0.1 gallon, the maximum flow water pressure in pounds per square inch (psi), and a declaration that the showerhead meets the requirements of § 430.32(p) pertaining to mechanical retention of the flow-restricting insert, if applicable.

[76 FR 12451, Mar. 7, 2011; 76 FR 24771, May 2, 2011, as amended at 78 FR 62985, Oct. 23, 2013]

§ 429.30 Water closets.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to water closets; and

(2) For each basic model of water closet, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of water consumption of a basic model for which consumers favor lower values shall be greater than or equal to the higher of:

(i) The mean of the sample, where:

Or,

(ii) The upper 90 percent confidence limit (UCL) of the true mean divided by 1.1, where:

(b) Certification reports. (1) The requirements of § 429.12 are applicable to water closets; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum water use in gallons per flush (gpf), rounded to the nearest 0.01 gallon. For dual-flush water closets, the maximum water use to be reported is the flush volume observed when tested in the full-flush mode.

[76 FR 12451, Mar. 7, 2011; 76 FR 24771, May 2, 2011, as amended at 78 FR 62986, Oct. 23, 2013]

§ 429.31 Urinals.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to urinals; and

(2) For each basic model of urinal, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of water consumption of a basic model for which consumers favor lower values shall be greater than or equal to the higher of:

(i) The mean of the sample, where:

Or,

(ii) The upper 90 percent confidence limit (UCL) of the true mean divided by 1.1, where:

(b) Certification reports. (1) The requirements of § 429.12 are applicable to urinals; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum water use in gallons per flush (gpf), rounded to the nearest 0.01 gallon, and for trough-type urinals, the maximum flow rate in gallons per minute (gpm), rounded to the nearest 0.01 gallon, and the length of the trough in inches (in).

[76 FR 12451, Mar. 7, 2011; 76 FR 24771, May 2, 2011, as amended at 78 FR 62986, Oct. 23, 2013]

§ 429.32 Ceiling fans.

Note 1 to § 429.32:

Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.32 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.

(a) Determination of represented value. Manufacturers must determine the represented value, which includes the certified rating, for each basic model of ceiling fan by testing, in conjunction with the following sampling provisions:

(1) The requirements of § 429.11 are applicable to ceiling fans; and

(2) For each basic model of ceiling fan, a sample of sufficient size must be randomly selected and tested to ensure that—

(i) Any represented value of the efficiency or airflow is less than or equal to the lower of:

(A) The mean of the sample, where:

And x is the sample mean; n is the number of samples; and xi is the i th sample; or

(B) The lower 90 percent confidence limit (LCL) of the true mean divided by 0.9, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.90 is the t statistic for a 90% one-tailed confidence interval with n−1 degrees of freedom (from appendix A to subpart B); and

(ii) Any represented value of the wattage is greater than or equal to the higher of:

(A) The mean of the sample, where:

And x is the sample mean; n is the number of samples; and xi is the i th sample; or

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.1, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom (from appendix A to this subpart); and

(3) For each basic model of ceiling fan,

(i) Any represented value of blade span, as defined in section 1.4 of appendix U to subpart B of part 430, is the mean of the blade spans measured for the sample selected as described in paragraph (a)(1) of this section, rounded to the nearest inch;

(ii) Any represented value of blade revolutions per minute (RPM) is the mean of the blade RPM measurements measured for the sample selected as described in paragraph (a)(1) of this section, rounded to the nearest RPM;

(iii) Any represented value of blade edge thickness is the mean of the blade edge thicknesses measured for the sample selected as described in paragraph (a)(1) of this section, rounded to the nearest 0.01 inch;

(iv) Any represented value of the distance between the ceiling and the lowest point on the fan blades is the mean of the distances measured for the sample selected as described in paragraph (a)(1) of this section, rounded to the nearest quarter of an inch;

(v) Any represented value of tip speed is pi multiplied by represented value of blade span divided by twelve multiplied by the represented value of RPM, rounded to the nearest foot per minute; and

(vi) Any represented value of airflow (CFM) at high speed, including the value used to determine whether a ceiling fan is a highly-decorative ceiling fan as defined in section 1.10 of appendix U to subpart B of part 430, is determined pursuant to paragraph (a)(2)(i) and rounded to the nearest CFM.

(4) To determine representative values of airflow, energy use, and estimated yearly energy cost of an LSSD or VSD ceiling fan basic model, use the following provisions.

(i) Airflow. Determine the represented value for airflow by calculating the weighted-average airflow of an LSSD or VSD ceiling fan basic model at low and high fan speed as follows:

Where: CFMave = represented value of ceiling fan airflow, rounded to the nearest CFM. CFMLow = represented value of measured airflow, in cubic feet per minute, at low fan speed, pursuant to paragraph (a)(2)(i) of this section. CFMHigh = represented value of measured airflow, in cubic feet per minute, at high fan speed, pursuant to paragraph (a)(2)(i) of this section. 3.0 = average daily operating hours at low fan speed, pursuant to Table 3 in appendix U to subpart B of part 430. 3.4 = average daily operating hours at high fan speed, pursuant to Table 3 in appendix U to subpart B of part 430. 6.4 = total average daily operating hours.

(ii) Energy Use. Determine represented value for energy use by calculating the weighted-average power consumption of an LSSD or VSD ceiling fan basic model at low and high fan speed as follows:

Where: Wave = represented value power consumption, rounded to the nearest watt, WLow = represented value of measured power consumption, in watts, at low fan speed, pursuant to paragraph (a)(2)(ii) of this section. WHigh = represented value of measured power consumption, in watts, at high fan speed, pursuant to paragraph (a)(2)(ii) of this section. WSb = represented value of measured power consumption, in watts, in standby mode, pursuant to paragraph (a)(2)(ii) of this section. 3.0 = average daily operating hours at low fan speed, pursuant to Table 3 in appendix U to subpart B of part 430. 3.4 = average daily operating hours at high fan speed, pursuant to Table 3 in appendix U to subpart B of part 430. 17.6 = average daily standby mode hours, pursuant to Table 3 in appendix U to subpart B of part 430. 6.4 = total average daily operating hours.

(iii) Estimated Yearly Energy Cost. Determine the represented value for estimated yearly energy cost of an LSSD or VSD ceiling fan basic model at low and high fan speed as follows:

Where: EYEC = represented value for estimated yearly energy cost, rounded to the nearest dollar, WLow = represented value of measured power consumption, in watts, at low fan speed, pursuant to paragraph (a)(2)(ii) of this section. WHigh = represented value of measured power consumption, in watts, at high fan speed, pursuant to paragraph (a)(2)(ii) of this section. WSb = represented value of measured power consumption, in watts, in standby mode, pursuant to paragraph (a)(2)(ii) of this section. CKWH = representative average unit cost of electrical energy in dollars per kilowatt-hour pursuant to 16 CFR part 305. 3.0 = average daily operating hours at low fan speed, pursuant to Table 3 in appendix U to subpart B of part 430 3.4 = average daily operating hours at high fan speed, pursuant to Table 3 in appendix U to subpart B of part 430. 17.6 = average daily standby mode hours, pursuant to Table 3 in appendix U to subpart B of part 430. 365 = number of days per year. 1000 = conversion factor from watts to kilowatts.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to ceiling fans; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:

(i) For all ceiling fans: Blade span (in), and the number of speed control settings.

(ii) For small-diameter ceiling fans: A declaration of whether the ceiling fan is a multi-head ceiling fan, and the ceiling fan efficiency (CFM/W).

(iii) For large-diameter ceiling fans: Ceiling fan energy index (CFEI) for high speed, and 40 percent speed or the nearest speed that is not less than 40 percent speed.

(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information:

(i) For all ceiling fans: A declaration that the manufacturer has incorporated the applicable design requirements.

(ii) For small-diameter ceiling fans: Standby power, blade edge thickness (in), airflow (CFM) at high speed, and blade revolutions per minute (RPM) at high speed.

(iii) For low-speed small-diameter ceiling fans: The distance (in) between the ceiling and the lowest point on the fan blades (in both hugger and standard configurations for multi-mount fans).

(c) Rounding requirements. Any represented value of ceiling fan efficiency, as described in paragraph (a)(2)(i) of this section, must be expressed in cubic feet per minute per watt (CFM/W) and rounded to the nearest whole number. Any represented value of ceiling fan energy index, as described in paragraph (a)(2)(i) of this section, must be expressed in CFEI and rounded to the nearest hundredth.

[76 FR 12451, Mar. 7, 2011, as amended at 81 FR 48639, July 25, 2016; 87 FR 43978, July 22, 2022; 87 FR 50422, Aug. 16, 2022]

§ 429.33 Ceiling fan light kits.

Note 1 to § 429.33:

Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.33 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.

(a) Determination of represented value. Manufacturers must determine represented values, which includes certified ratings, for each basic model of ceiling fan light kit in accordance with following sampling provisions.

(1) The requirements of § 429.11 are applicable to ceiling fan light kits, and

(2) For each basic model of ceiling fan light kit, the following sample size requirements are applicable to demonstrate compliance with the January 1, 2007 energy conservation standards:

(i) For ceiling fan light kits with medium screw base sockets that are packaged with compact fluorescent lamps, determine the represented values of each basic model of lamp packaged with the ceiling fan light kit in accordance with § 429.35.

(ii) For ceiling fan light kits with medium screw base sockets that are packaged with integrated light-emitting diode lamps, determine the represented values of each basic model of lamp packaged with the ceiling fan light kit in accordance with § 429.56.

(iii) For ceiling fan light kits with pin-based sockets that are packaged with fluorescent lamps, determine the represented values of each basic model of lamp packaged with the ceiling fan light kit in accordance with the sampling requirements in § 429.35.

(iv) For ceiling fan light kits with medium screw base sockets that are packaged with incandescent lamps, determine the represented values of each basic model of lamp packaged with the ceiling fan light kit in accordance with § 429.40, § 429.55 or § 429.66, as applicable.

(v) For ceiling fan light kits with sockets or packaged with lamps other than those described in paragraphs (a)(2)(i), (ii), (iii), or (iv) of this section, each unit must comply with the applicable design standard in § 430.32(s)(5) of this chapter.

(3) For ceiling fan light kits that require compliance with the January 21, 2020 energy conservation standards:

(i) Determine the represented values of each basic model of lamp packaged with each basic model of ceiling fan light kit, in accordance with the specified section:

(A) For compact fluorescent lamps, § 429.35;

(B) For general service fluorescent lamps, § 429.27;

(C) For incandescent lamps, § 429.40, § 429.55 or § 429.66, as applicable;

(D) For integrated LED lamps, § 429.56.

(E) For other fluorescent lamps (not compact fluorescent lamps or general service fluorescent lamps), § 429.35; and

(F) For consumer-replaceable SSL (not integrated LED lamps) and other SSL lamps that have an ANSI standard base and are not integrated LED lamps, § 429.56.

(ii) Determine the represented value of each basic model of non-consumer-replaceable SSL that is incorporated into each basic model of ceiling fan light kit by randomly selecting a sample of sufficient size and testing to ensure that any represented value of the energy efficiency of the integrated SSL circuitry basic model is less than or equal to the lower of:

(A) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the i th sample; Or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom (from appendix A to subpart B).

(b) Certification reports. (1) The requirements of § 429.12 are applicable to ceiling fan light kits; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:

(i) For ceiling fan light kits manufactured prior to January 21, 2020:

(A) For ceiling fan light kits with sockets for medium screw base lamps: The rated wattage in watts (W) and the system's efficacy in lumens per watt (lm/W).

(B) For ceiling fan light kits with pin-based sockets for fluorescent lamps: The rated wattage in watts (W), the system's efficacy in lumens per watt (lm/W), and the length of the lamp in inches (in).

(C) For ceiling fan light kits with any other socket type: The rated wattage in watts (W) and the number of individual sockets.

(ii) For ceiling fan light kits manufactured on or after January 21, 2020:

(A) For each basic model of lamp and/or each basic model of non-consumer-replaceable SSL packaged with the ceiling fan light kit, the brand, basic model number, test sample size, kind of lamp (i.e., general service fluorescent lamp (GSFL); fluorescent lamp with a pin base that is not a GSFL; compact fluorescent lamp (CFL) with a medium screw base; CFL with a base that is not medium screw base [e.g., candelabra base]; other fluorescent lamp [not GSFL or CFL]; general service incandescent lamp (GSIL); candelabra base incandescent lamp; intermediate base incandescent lamp; incandescent reflector lamp; other incandescent lamp [not GSIL, IRL, candelabra base or intermediate base incandescent lamp]; integrated LED lamp; non-consumer-replaceable SSL; consumer-replaceable SSL [not integrated LED lamps] and other SSL lamps that have an ANSI standard base and are not integrated LED lamps; other lamp not specified), lumen output in lumens (lm), and efficacy in lumens per watt (lm/W).

(B) For each lamp basic model identified in paragraph (b)(2)(ii)(A) of this section that is a compact fluorescent lamp with a medium screw base, the lumen maintenance at 40 percent of lifetime in percent (%) (and whether the value is estimated), the lumen maintenance at 1,000 hours in percent (%), the lifetime in hours (h) (and whether the value is estimated), and the sample size for rapid cycle stress testing and results in number of units passed (and whether the value is estimated). Estimates of lifetime, lumen maintenance at 40 percent of lifetime, and rapid cycle stress test surviving units may be reported until testing is complete. Manufacturers are required to maintain records of the development of all estimated values and any associated initial test data in accordance with § 429.71.

(3) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information:

(i) For ceiling fan light kits with any other socket type manufactured prior to January 21, 2020, a declaration that the basic model meets the applicable design requirement, and the features that have been incorporated into the ceiling fan light kit to meet the applicable design requirement (e.g., circuit breaker, fuse, ballast).

(ii) For ceiling fan light kits manufactured on or after January 21, 2020:

(A) A declaration that the ceiling fan light kit is packaged with lamps sufficient to fill all of the lamp sockets;

(B) For each basic model of lamp and/or each basic model of non-consumer-replaceable SSL packaged with the ceiling fan light kit, a declaration that, where applicable, the lamp basic model was tested by a laboratory accredited as required under § 430.25 of this chapter; and

(C) For ceiling fan light kits with pin-based sockets for fluorescent lamps, a declaration that each ballast for such lamps is an electronic ballast.

(c) Rounding requirements. (1) Any represented value of efficacy of ceiling fan light kits as described in paragraph (a) of this section must be expressed in lumens per watt and rounded to the nearest tenth of a lumen per watt.

(2) Round lumen output to three significant digits.

(3) Round lumen maintenance at 1,000 hours to the nearest tenth of a percent.

(4) Round lumen maintenance at 40 percent of lifetime to the nearest tenth of a percent.

(5) Round lifetime to the nearest whole hour.

[76 FR 12451, Mar. 7, 2011; 76 FR 24772, May 2, 2011, as amended at 80 FR 80225, Dec. 24, 2015; 81 FR 632, Jan. 6, 2016; 81 FR 43425, July 1, 2016; 84 FR 8413, Mar. 8, 2019; 87 FR 43978, July 22, 2022; 87 FR 54330, Sept. 6, 2022; 87 FR 53638, Aug. 31, 2022; 88 FR 21072, Apr. 10, 2023; 89 FR 82062, Oct. 9, 2024; 90 FR 43379, Sept. 9, 2025]

§ 429.34 Torchieres.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to torchieres; and

(2) Reserved

(b) Certification reports. (1) The requirements of § 429.12 are applicable to torchieres; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following additional product-specific information: A declaration that the basic model meets the applicable design requirement and the features that have been incorporated into the torchiere to meet the applicable design requirement (e.g., circuit breaker, fuse, ballast).

§ 429.35 Compact fluorescent lamps.

(a) Determination of Represented Value. Manufacturers must determine represented values, which include the certified ratings, for each basic model of compact fluorescent lamp by testing, in conjunction with the following sampling provisions:

(1) Units to be tested. (i) The requirements of § 429.11(a) are applicable except that the sample must be comprised of production units; and

(ii)(A) For each basic model of integrated compact fluorescent lamp, the minimum number of units tested shall be no less than 10 units when testing for the initial lumen output, input power, initial lamp efficacy, lumen maintenance at 1,000 hours, lumen maintenance at 40 percent of lifetime, lifetime, CCT, CRI, power factor, and standby mode power. If more than 10 units are tested as part of the sample, the total number of units must be a multiple of 2. The same sample of units must be used as the basis for representations for initial lumen output, input power, initial lamp efficacy, lumen maintenance at 1,000 hours, lumen maintenance at 40 percent of lifetime, lifetime, CCT, CRI, power factor, and standby mode power. No less than three units from the same sample of units must be used when testing for the start time. Exactly six unique units (i.e., units that have not previously been tested under this paragraph (a)(1)(ii) but are representative of the same basic model tested under this paragraph (a)(1)(ii)) must be used for rapid cycle stress testing.

(B) For each basic model of non-integrated compact fluorescent lamp, the minimum number of units tested shall be no less than 10 units when testing for the initial lumen output, input power, initial lamp efficacy, lumen maintenance at 40 percent of lifetime, lifetime, CCT, and CRI. If more than 10 units are tested as part of the sample, the total number of units must be a multiple of 2. The same sample of units must be used as the basis for representations for initial lumen output, input power, initial lamp efficacy, lumen maintenance at 40 percent of lifetime, lifetime, CCT, and CRI.

(iii) For each basic model, a sample of sufficient size shall be randomly selected and tested to ensure that:

(A) Represented values of initial lumen output, initial lamp efficacy, lumen maintenance at 1,000 hours, lumen maintenance at 40 percent of lifetime, CRI, power factor, or other measure of energy consumption of a basic model for which consumers would favor higher values must be less than or equal to the lower of:

(1) The mean of the sample,

Where: x is the sample mean, n is the number of units in the sample, and xi is the i th unit;

Or,

(2) The lower 97.5-percent confidence limit (LCL) of the true mean divided by 0.95,

Where: x is the sample mean of the characteristic value; s is the sample standard deviation; n is the number of units in the sample, and t 0.975 is the t statistic for a 97.5% one-tailed confidence interval with n-1 degrees of freedom (from appendix A of this subpart).

(B) Represented values of input power, standby mode power, start time or other measure of energy consumption of a basic model for which consumers would favor lower values must be greater than or equal to the higher of:

(1) The mean of the sample,

Where: x is the sample mean, n is the number of units in the sample, and x i is the i th unit;

Or,

(2) The upper 97.5-percent confidence limit (UCL) of the true mean divided by 1.05,

Where: x is the sample mean of the characteristic value; s is the sample standard deviation; n is the number of units in the sample, and t 0.975 is the t statistic for a 97.5% one-tailed confidence interval with n-1 degrees of freedom (from appendix A of this subpart).

(C) The represented value of CCT must be equal to the mean of the sample,

Where: x is the sample mean, n is the number of units in the sample, and x i is the i th unit.

(D) The represented value of lifetime must be equal to or less than the median time to failure of the sample (calculated as the arithmetic mean of the time to failure of the two middle sample units when the numbers are sorted in value order).

(E) The represented value of the results of rapid cycle stress testing must be

(1) Expressed in the number of surviving units and

(2) Based on a lifetime value that is equal to or greater than the represented value of lifetime.

(2) The represented value of life (in years) of a compact fluorescent lamp must be calculated by dividing the represented lifetime of a compact fluorescent lamp as determined in (a)(1) of this section by the estimated annual operating hours as specified in 16 CFR 305.15(b)(3)(iii).

(3) The represented value of the estimated annual energy cost for a compact fluorescent lamp, expressed in dollars per year, must be the product of the input power in kilowatts, an electricity cost rate as specified in 16 CFR 305.15(b)(1)(ii), and an estimated average annual use as specified in 16 CFR 305.15(b)(1)(ii).

(4) For compliance with standards specified in § 430.32(u) as it appeared in 10 CFR parts 200-499 edition revised as of January 1, 2016, initial lamp efficacy may include a 3 percent tolerance added to the value determined in accordance with paragraph (a)(1)(iii)(A) of this section.

(5) The represented value of lumen maintenance at 40 percent of lifetime must be based on a lifetime value that is equal to or greater than the represented value of lifetime.

(6) Estimated values may be used for representations when initially testing a new basic model or when new/additional testing is required.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to compact fluorescent lamps; and

(2) Values reported in certification reports are represented values. Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:

(i) For each basic model of medium base CFL when certifying compliance to the standards in § 430.32(u) as it appeared in 10 CFR parts 200-499 edition revised as of January 1, 2016, the testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, the date of first manufacture, the seasoning time in hours (h), the initial lumen output in lumens (lm), the input power in watts (W), the initial lamp efficacy in lumens per watt (lm/W), the number of sample units replaced during the seasoning period within each unique sample set used in determining the represented value, the lumen maintenance at 40 percent of lifetime in percent (%) (and whether value is estimated), the lifetime in hours (h) (and whether value is estimated), life in years (and whether value is estimated), the lumen maintenance at 1,000 hours in percent (%), and the results of rapid cycle stress testing in number of units passed. or the initial certification of new basic models or any subsequent certification based on new testing, estimates of lifetime, life, lumen maintenance at 40 percent of lifetime, and rapid cycle stress test surviving units may be reported (if indicated in the certification report) until testing is complete. When reporting estimated values, the certification report must specifically describe the prediction method, which must be generally representative of the methods specified in appendix W. Manufacturers are required to maintain records in accordance with § 429.71 of the development of all estimated values and any associated initial test data.

(ii) For each basic model of integrated CFL when certifying compliance with general service lamp energy conservation standards, the testing laboratory's ILAC accreditation body's identification number or other identification assigned by the ILAC accreditation body, the date of first manufacture, a statement that the compact fluorescent lamp is integrated, the seasoning time in hours (h), the initial lumen output in lumens (lm), the input power in watts (W), the initial lamp efficacy in lumens per watt (lm/W), the CCT in kelvin (K), CRI, the lumen maintenance at 1,000 hours in percent (%), the lumen maintenance at 40 percent of lifetime in percent (%) (and whether value is estimated), start time in milliseconds, power factor, standby mode energy consumption in watts (W), the results of rapid cycle stress testing in number of units passed, the lifetime in hours (h) (and whether value is estimated), life in years (and whether value is estimated), and the number of sample units replaced during the seasoning period within the sample set used in determining the represented value. Estimates of lifetime, life, lumen maintenance at 40 percent of lifetime, and rapid cycle stress test surviving units may be reported (if indicated in the certification report) until testing is complete. When reporting estimated values, the certification report must specifically describe the prediction method, which must be generally representative of the methods specified in appendix W. Manufacturers are required to maintain records in accordance with § 429.71 of the development of all estimated values and any associated initial test data.

(iii) For each basic model of non-integrated CFL when certifying compliance with general service lamp energy conservation standards, the testing laboratory's ILAC accreditation body's identification number or other identification assigned by the ILAC accreditation body, the date of first manufacture, a statement that the compact fluorescent lamp is non-integrated, the initial lumen output in lumens (lm), the input power in watts (W), the initial lamp efficacy in lumens per watt (lm/W), the CCT in kelvin (K), CRI, the lumen maintenance at 40 percent of lifetime in percent (%) (and whether value is estimated), the lifetime in hours (h) (and whether value is estimated), and the number of sample units replaced during the seasoning period within each unique sample set used in determining the represented value. Estimates of lifetime and lumen maintenance at 40 percent of lifetime may be reported (if indicated in the certification report) until testing is complete. When reporting estimated values, the certification report must specifically describe the prediction method, which must be generally representative of the methods specified in appendix W. Manufacturers are required to maintain records in accordance with § 429.71 of the development of all estimated values and any associated initial test data.

(c) Rounding requirements. For represented values,

(1) Round input power to the nearest tenth of a watt.

(2) Round lumen output to three significant digits.

(3) Round initial lamp efficacy to the nearest tenth of a lumen per watt.

(4) Round lumen maintenance at 1,000 hours to the nearest tenth of a percent.

(5) Round lumen maintenance at 40 percent of lifetime to the nearest tenth of a percent.

(6) Round CRI to the nearest whole number.

(7) Round power factor to the nearest hundredths place.

(8) Round lifetime to the nearest whole hour.

(9) Round CCT to the nearest 100 kelvin (K).

(10) Round standby mode power to the nearest tenth of a watt; and

(11) Round start time to the nearest whole millisecond.

[81 FR 59415, Aug. 29, 2016]

§ 429.36 Dehumidifiers.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to dehumidifiers; and

(2) For each basic model of dehumidifier selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

Or,

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:

and

(ii) Any represented value of the energy factor, integrated energy factor, or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

Or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:

(3) The capacity of a basic model is the mean of the measured capacities for each tested unit of the basic model. Round the mean capacity value to two decimal places.

(4) For whole-home dehumidifiers, the case volume of a basic model is the mean of the measured case volumes for each tested unit of the basic model. Round the mean case volume value to one decimal place.

(5) Round the value of energy factor or integrated energy factor for a basic model to two decimal places.

(6) Dehumidifiers distributed in commerce by the manufacturer with the ability to operate as both a portable and whole-home dehumidifier by means of installation or removal of an optional ducting kit, must be rated and certified under both configurations.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to dehumidifiers; and

(2) Pursuant to § 429.12(b)(13), a certification report must include the following public product-specific information:

(i) For dehumidifiers tested in accordance with appendix X: The energy factor in liters per kilowatt hour (liters/kWh) and capacity in pints per day.

(ii) For dehumidifiers tested in accordance with appendix X1: The integrated energy factor in liters per kilowatt (liters/kWh), capacity in pints per day, and for whole-home dehumidifiers, case volume in cubic feet.

[76 FR 12451, Mar. 7, 2011; 76 FR 24773, May 2, 2011, as amended at 77 FR 65977, Oct. 31, 2012; 80 FR 45824, July 31, 2015; 81 FR 38395, June 13, 2016; 89 FR 82062, Oct. 9, 2024; 90 FR 43380, Sept. 9, 2025]

§ 429.37 External power supplies.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to external power supplies; and

(2) For each basic model of external power supply selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of the estimated energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

Or,

(B) The upper 97.5 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and

(ii) Any represented value of the estimated energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

Or,

(B) The lower 97.5 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(b) Certification reports. (1) The requirements of § 429.12 are applicable to external power supplies except that required information may be reported on the basis of a basic model or a design family. If certifying using a design family, for § 429.12(b)(6), report the individual manufacturer's model numbers covered by the design family.

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:

(i) External power supplies: The average active mode efficiency as a percentage (%), no-load mode power consumption in watts (W), nameplate output power in watts (W), and, if missing from the nameplate, the output current in amperes (A) of the basic model or the output current in amperes (A) of the highest- and lowest-voltage models within the external power supply design family.

(ii) Switch-selectable single-voltage external power supplies: The average active mode efficiency as a percentage (%) value, no-load mode power consumption in watts (W) using the lowest and highest selectable output voltages, nameplate output power in watts (W), and, if missing from the nameplate, the output current in amperes (A).

(iii) Adaptive single-voltage external power supplies: The average active-mode efficiency as a percentage (%) at the highest and lowest nameplate output voltages, no-load mode power consumption in watts (W), nameplate output power in watts (W) at the highest and lowest nameplate output voltages, and, if missing from the nameplate, the output current in amperes (A) at the highest and lowest nameplate output voltages.

(iv) External power supplies that are exempt from no-load mode requirements under § 430.32(w)(5) of this chapter: A statement that the product is designed to be connected to a security or life safety alarm or surveillance system component, the average active-mode efficiency as a percentage (%), the nameplate output power in watts (W), and, if missing from the nameplate, the certification report must also include the output current in amperes (A) of the basic model or the output current in amperes (A) of the highest- and lowest-voltage models within the external power supply design family.

[76 FR 12451, Mar. 7, 2011; 76 FR 24773, May 2, 2011, as amended at 76 FR 57899, Sept. 19, 2011; 80 FR 51440, Aug. 25, 2015; 81 FR 30163, May 16, 2016; 84 FR 442, Jan. 29, 2019; 89 FR 82062, Oct. 9, 2024; 90 FR 43380, Sept. 9, 2025; 91 FR 22710, Apr. 28, 2026]

§ 429.38 Non-class A external power supplies. [Reserved]

§ 429.39 Battery chargers.

(a) Determination of represented value. Manufacturers must determine represented values, which include certified ratings, for each basic model of battery charger in accordance with the following sampling provisions.

(1) Represented values include: The unit energy consumption (UEC) in kilowatt-hours per year (kWh/yr), battery discharge energy (Ebatt) in watt hours (Wh), 24-hour energy consumption (E24) in watt hours (Wh), maintenance mode power (Pm) in watts (W), standby mode power (Psb) in watts (W), off mode power (Poff) in watts (W), and duration of the charge and maintenance mode test (tcd) in hours (hrs) for all battery chargers other than uninterruptible power supplies (UPSs); and average load adjusted efficiency (Effavg) for UPSs.

(2) Units to be tested. (i) The general requirements of § 429.11 are applicable to all battery chargers; and

(ii) For each basic model of battery chargers other than UPSs, a sample of sufficient size must be randomly selected and tested to ensure that the represented value of UEC is greater than or equal to the higher of:

(A) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the UEC of the ith sample; or,

(B) The upper 97.5-percent confidence limit (UCL) of the true mean divided by 1.05, where:

and x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.975 is the t-statistic for a 97.5-percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A of this subpart).

(iii) For each basic model of battery chargers other than UPSs, using the sample from paragraph (a)(2)(ii) of this section, calculate the represented values of each metric (i.e., maintenance mode power (Pm), standby power (Psb), off mode power (Poff), battery discharge energy (Ebatt), 24-hour energy consumption (E24), and duration of the charge and maintenance mode test (tcd)), where the represented value of the metric is:

and, x is the sample mean, n is the number of samples, and xi is the measured value of the ith sample for the metric.

(iv) For each basic model of UPSs, the represented value of Effavg must be calculated using one of the following two methods:

(A) A sample of sufficient size must be randomly selected and tested to ensure that the represented value of Effavg is less than or equal to the lower of:

(1) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the Effavg of the ith sample; or,

(2) The lower 97.5-percent confidence limit (LCL) of the true mean divided by 0.95, where:

and x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.975 is the t-statistic for a 97.5-percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A of this subpart).

(B) The represented value of Effavg is equal to the Effavg of the single unit tested.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to all battery chargers.

(2) Pursuant to § 429.12(b)(13), a certification report must include the following product-specific information for all battery chargers other than UPSs: The nameplate battery voltage of the test battery in volts (V), the nameplate battery charge capacity of the test battery in ampere-hours (Ah), and the nameplate battery energy capacity of the test battery in watt-hours (Wh). A certification report must also include the represented values, as determined in paragraph (a) of this section for the maintenance mode power (Pm), standby mode power (Psb), off mode power (Poff), battery discharge energy (Ebatt), 24-hour energy consumption (E24), duration of the charge and maintenance mode test (tcd), and unit energy consumption (UEC).

(3) Pursuant to § 429.12(b)(13), a certification report must include the following product-specific information for all battery chargers other than UPSs: The manufacturer and model of the test battery, and the manufacturer and model, when applicable, of the external power supply.

(4) Pursuant to § 429.12(b)(13), a certification report must include the following product-specific information for all UPSs: Supported input dependency mode(s); active power in watts (W); apparent power in volt-amperes (VA); rated input and output voltages in volts (V); efficiencies at 25 percent, 50 percent, 75 percent and 100 percent of the reference test load; and average load adjusted efficiency of the lowest and highest input dependency modes.

[81 FR 89821, Dec. 12, 2016, as amended at 89 FR 82063, Oct. 9, 2024; 90 FR 43380, Sept. 9, 2025]

§ 429.40 Candelabra base incandescent lamps and intermediate base incandescent lamps.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to candelabra base incandescent lamps; and

(2) For each basic model of candelabra base incandescent lamp and intermediate base incandescent lamp, a minimum sample of 21 lamps shall be randomly selected and tested. Any represented value of lamp wattage of a basic model shall be based on the sample and shall be less than or equal to the lower of:

(i) The mean of the sample, where:

Or,

(ii) The lower 97.5 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(b) Certification reports. (1) The requirements of § 429.12 are applicable to candelabra base and intermediate base incandescent lamps; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:

(i) Candelabra base incandescent lamp: The rated wattage in watts (W).

(ii) Intermediate base incandescent lamp: The rated wattage in watts (W).

[76 FR 12451, Mar. 7, 2011; 76 FR 24774, May 2, 2011]

§ 429.41 Commercial warm air furnaces.

(a) Determination of represented value. Manufacturers must determine the represented value, which includes the certified rating, for each basic model of commercial warm air furnace either by testing, in conjunction with the applicable sampling provisions, or by applying an AEDM.

(1) Units to be tested. (i) If the represented value is determined through testing, the general requirements of § 429.11 are applicable; and

(ii) For each basic model selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—

(A) Any represented value of energy consumption or other measure of energy use of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(1) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the i th sample; Or,

(2) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n−1 degrees of freedom (from Appendix A to subpart B of part 429). And,

(B) Any represented value of energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(1) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the i th sample; Or,

(2) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n−1 degrees of freedom (from Appendix A to subpart B of part 429).

(2) Alternative efficiency determination methods. In lieu of testing, a represented value of efficiency or consumption for a basic model of commercial warm air furnace must be determined through the application of an AEDM pursuant to the requirements of § 429.70 and the provisions of this section, where:

(i) Any represented value of energy consumption or other measure of energy use of a basic model for which consumers would favor lower values shall be greater than or equal to the output of the AEDM and less than or equal to the Federal standard for that basic model; and

(ii) Any represented value of energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the output of the AEDM and greater than or equal to the Federal standard for that basic model.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to commercial warm air furnaces; and

(2) Pursuant to § 429.12(b)(13), a certification report must include the following public, equipment-specific information: The thermal efficiency in percent (%), and the maximum rated input capacity in British thermal units per hour (Btu/h).

(3) Pursuant to § 429.12(b)(13), a certification report must include the following additional equipment-specific information:

(i) Whether the basic model is engineered-to-order; and

(ii) For any basic model rated with an AEDM, whether the manufacturer elects the witness test option for verification testing. (See § 429.70(c)(5)(iii) for options). However, the manufacturer may not select more than 10% of AEDM-rated basic models.

(4) Pursuant to § 429.12(b)(13), a certification report may include supplemental testing instructions in PDF format. If necessary to run a valid test, the equipment-specific, supplemental information must include any additional testing and testing set up instructions (e.g., specific operational or control codes or settings), which would be necessary to operate the basic model under the required conditions specified by the relevant test procedure. A manufacturer may also include with a certification report other supplementary items in PDF format (e.g., manuals) for DOE consideration in performing testing under subpart C of this part.

[79 FR 25500, May 5, 2014, as amended at 80 FR 151, Jan. 5, 2015]

§ 429.42 Commercial refrigerators, freezers, and refrigerator-freezers.

(a) Determination of represented value. Manufacturers must determine the represented value, which includes the certified rating, for each basic model of commercial refrigerator, freezer, or refrigerator-freezer either by testing, in conjunction with the applicable sampling provisions, or by applying an AEDM.

(1) Units to be tested. (i) If the represented value for a given basic model is determined through testing, the general requirements of § 429.11 are applicable; and

(ii) For each basic model selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—

(A) Any represented value of energy consumption or other measure of energy use of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(1) The mean of the sample, where:

And x is the sample mean; n is the number of samples; and xi is the i th sample; or,

(2) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom (from Appendix A to subpart B of part 429); And,

(B) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(1) The mean of the sample, where:

And, x is the sample mean; n is the number of samples; and xi is the i th sample; or,

(2) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom (from Appendix A to subpart B of part 429).

(2) Alternative efficiency determination methods. In lieu of testing, a represented value of efficiency or consumption for a basic model of commercial refrigerator, freezer or refrigerator-freezer must be determined through the application of an AEDM pursuant to the requirements of § 429.70 and the provisions of this section, where:

(i) Any represented value of energy consumption or other measure of energy use of a basic model for which consumers would favor lower values shall be greater than or equal to the output of the AEDM and less than or equal to the Federal standard for that basic model; and

(ii) Any represented value of energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the output of the AEDM and greater than or equal to the Federal standard for that basic model.

(3) Represented value calculations. The volume and total display area (TDA) of a basic model, as applicable, is the mean of the measured volumes and the mean of the measured TDAs, as applicable, for the tested units of the basic model, based on the same tests used to determine energy consumption.

(4) Convertible equipment. Each basic model of commercial refrigerator, freezer, or refrigerator-freezer that is capable of operating at integrated average temperatures that spans the operating temperature range of multiple equipment classes, either by adjusting a thermostat for a basic model or by the marketed, designed, or intended operation for a basic model with a remote condensing unit but without a thermostat, must determine the represented values, which includes the certified ratings, either by testing, in conjunction with the applicable sampling provisions, or by applying an AEDM to comply with the requirements necessary to certify to each equipment class that the basic model is capable of operating within.

(i) Customer order storage cabinets. For customer order storage cabinets that have individual-secured compartments that are convertible between the ≥32 °F and <32 °F operating temperatures, the customer order storage cabinets must determine the represented values, which includes the certified ratings, either by testing, in conjunction with the applicable sampling provisions, or by applying an AEDM, with all convertible compartments operating either as medium temperature refrigerators or all convertible compartments as low-temperature freezers, or at the lowest application product temperature for each equipment class as specified in § 431.64 of this chapter, to comply with the requirements necessary to certify to each equipment class that the basic model is capable of operating within.

(ii) [Reserved]

(b) Certification reports. (1) The requirements of § 429.12 are applicable to commercial refrigerators, freezers, and refrigerator-freezers; and

(2) Pursuant to § 429.12(b)(13), a certification report must include the following public, equipment-specific information:

(i) The daily energy consumption in kilowatt hours per day (kWh/day);

(ii) The rating temperature (e.g. lowest product application temperature, if applicable) in degrees Fahrenheit ( °F); and

(iii) The chilled or frozen compartment volume in cubic feet (ft 3), the adjusted volume in cubic feet (ft 3), or the total display area (TDA) in feet squared (ft 2) (as appropriate for the equipment class).

(3) Pursuant to § 429.12(b)(13), a certification report must include the following additional, equipment-specific information:

(i) Whether the basic model is engineered-to-order; and

(ii) For any basic model rated with an AEDM, whether the manufacturer elects the witness test option for verification testing. (See § 429.70(c)(5)(iii) for options). However, the manufacturer may not select more than 10% of AEDM-rated basic models.

(4) Pursuant to § 429.12(b)(13), a certification report must include supplemental information submitted in PDF format. The equipment-specific, supplemental information must include any additional testing and testing set up instructions (e.g., charging instructions) for the basic model; identification of all special features that were included in rating the basic model; and all other information (e.g., any specific settings or controls) necessary to operate the basic model under the required conditions specified by the relevant test procedure. A manufacturer may also include with a certification report other supplementary items in PDF format (e.g., manuals) for DOE to consider when performing testing under subpart C of this part.

[76 FR 12451, Mar. 7, 2011; 76 FR 24775, May 2, 2011, as amended at 76 FR 38292, June 30, 2011; 78 FR 79593, Dec. 31, 2013; 79 FR 22307, Apr. 21, 2014; 79 FR 25501, May 5, 2014; 80 FR 151, Jan. 5, 2015; 88 FR 66221, Sept. 26, 2023]

§ 429.43 Commercial heating, ventilating, air conditioning (HVAC) equipment (excluding air-cooled, three-phase, small commercial package air conditioning and heating equipment with a cooling capacity of less than 65,000 British thermal units per hour and air-cooled, three-phase, variable refrigerant flow multi-split air conditioners and heat pumps with less than 65,000 British thermal units per hour cooling capacity).

(a) Determination of represented values. Manufacturers must determine the represented values, which include the certified ratings, for each basic model of commercial HVAC equipment either by testing, in conjunction with the applicable sampling provisions, or by applying an AEDM.

(1) Units to be tested. (i) If the represented value is determined through testing, the general requirements of § 429.11 are applicable; and

(ii) For each basic model selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—

(A) Any represented value of energy consumption or other measure of energy use of a basic model, or of a tested combination for variable refrigerant flow multi-split air conditioners and heat pumps certified to standards in terms of IEER as provided at paragraph (a)(3)(ii)(C) of this section, for which consumers would favor lower values shall be greater than or equal to the higher of:

(1) The mean of the sample, where:

And, x is the sample mean; n is the number of samples; and xi is the i th sample; or,

(2) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom (from Appendix A to subpart B of part 429). And,

(B) Any represented value of energy efficiency or other measure of energy consumption of a basic model, or of a tested combination for variable refrigerant flow multi-split air conditioners and heat pumps certified to standards in terms of IEER as provided at paragraph (a)(3)(ii)(C) of this section, for which consumers would favor higher values shall be less than or equal to the lower of:

(1) The mean of the sample, where:

And, x is the sample mean; n is the number of samples; and xi is the i th sample; or,

(2) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom (from Appendix A to subpart B of part 429).

(iii) For packaged terminal air conditioners and packaged terminal heat pumps, the represented value of cooling capacity shall be the average of the capacities measured for the sample selected as described in (a)(1)(ii) of this section, rounded to the nearest 100 Btu/h.

(2) Alternative efficiency determination methods. (i) In lieu of testing, a represented value of efficiency or consumption for a basic model of commercial HVAC equipment must be determined through the application of an AEDM pursuant to the requirements of § 429.70 and the provisions of this section, where:

(A) Any represented value of energy consumption or other measure of energy use of a basic model for which consumers would favor lower values shall be greater than or equal to the output of the AEDM and less than or equal to the Federal standard for that basic model; and

(B) Any represented value of energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the output of the AEDM and greater than or equal to the Federal standard for that basic model.

(ii) [Reserved]

(3) Product-specific provisions for determination of represented values. (i) Direct-expansion-dedicated outdoor air systems (DX-DOASes):

(A) Individual model selection:

(1) Representations for a basic model must be based on the least efficient individual model(s) distributed in commerce among all otherwise comparable model groups comprising the basic model, considering only individual models as provided in paragraph (a)(3)(i)(A)(2) of this section. For the purpose of this paragraph (a)(3), an “otherwise comparable model group” means a group of individual models distributed in commerce within the basic model that do not differ in components that affect energy consumption as measured according to the applicable test procedure specified at 10 CFR 431.96 other than those listed in table 1 to paragraph (a)(3)(i)(A) of this section. An otherwise comparable model group may include individual models distributed in commerce with any combination of the components listed in table 1 (or none of the components listed in table 1). An otherwise comparable model group may consist of only one individual model.

(2) For a basic model that includes individual models distributed in commerce with components listed in table 1 to paragraph (a)(3)(i)(A) of this section, the requirements for determining representations apply only to the individual model(s) of a specific otherwise comparable model group distributed in commerce with the least number (which could be zero) of components listed in table 1 included in individual models of the group. Testing under this paragraph shall be consistent with any component-specific test provisions specified in section 2.2.2 of appendix B to subpart F of part 431.

Table 1 to Paragraph (a)(3)(i)(A)

Component | Description

Furnaces and Steam/Hydronic Heat Coils | Furnaces and steam/hydronic heat coils used to provide primary or supplementary heating.

Ducted Condenser Fans | A condenser fan/motor assembly designed for optional external ducting of condenser air that provides greater pressure rise and has a higher rated motor horsepower than the condenser fan provided as a standard component with the equipment.

Sound Traps/Sound Attenuators | An assembly of structures through which the supply air passes before leaving the equipment or through which the return air from the building passes immediately after entering the equipment, for which the sound insertion loss is at least 6 dB for the 125 Hz octave band frequency range.

VERS Preheat | Electric resistance, hydronic, or steam heating coils used for preheating outdoor air entering a VERS.

(B) When certifying, the following provisions apply.

(1) For ratings based on tested samples, the represented value of moisture removal capacity shall be between 95 and 100 percent of the mean of the moisture removal capacities measured for the units in the sample selected, as described in paragraph (a)(1)(ii) of this section, rounded to the nearest lb/hr multiple specified in table 2 to paragraph (a)(3)(i)(B) of this section.

(2) For ratings based on an AEDM, the represented value of moisture removal capacity shall be the moisture removal capacity output simulated by the AEDM, as described in paragraph (a)(2) of this section, rounded to the nearest lb/hr multiple specified in table 2 to paragraph (a)(3)(i)(B) of this section.

Table 2 Paragraph (a)(3)(i)(B)—Rounding Requirements for Rated Moisture Removal Capacity

Moisture removal capacity (MRC), lb/hr | Rounding multiples, lb/hr

0 < MRC ≤ 30 | 0.2

30 < MRC ≤ 60 | 0.5

60 < MRC ≤ 180 | 1

180 < MRC | 2

(ii) Variable refrigerant flow multi-split air conditioners and heat pumps (other than air-cooled with cooling capacity less than 65,000 btu/h). When certifying to standards in terms of IEER, the following provisions apply.

(A) Outdoor Unit Model Selection. All representations for basic models of VRF multi-split systems must be based on the least-efficient outdoor unit model(s) distributed in commerce within the basic model.

(B) Indoor Unit Model Selection. A manufacturer must determine represented values for basic models of VRF multi-split systems based on the following provisions regarding selection of indoor units:

(1) The combination of indoor unit models shall be selected per the certified tested combination in the STI, subject to the provisions in paragraph (a)(3)(ii)(B)(2) of this section.

(2) For each indoor unit model identified in the tested combination for which the model number certified in the STI does not fully specify the presence or absence of all components, a fully-specified indoor unit model shall be selected that meets the following qualifications:

(i) Is distributed in commerce; and

(ii) Has a model number consistent with the certified indoor unit model number (i.e., shares all digits of the model number that are specified in the certified indoor unit model number); and

(iii) Among the group of all indoor models meeting the criteria from paragraphs (a)(3)(ii)(B)(2)(i) and (ii) of this section, has the least number (which could be zero) of components listed in Table 2 to paragraph (a)(3)(ii)(B)(2) of this section.

Table 3 to Paragraph (a)(3)(ii)(B)(2)—Specific Components for Variable Refrigerant Flow Multi-Split Systems

Component | Description

Air economizers | An automatic system that enables a cooling system to supply and use outdoor air to reduce or eliminate the need for mechanical cooling during mild or cold weather.

Dehumidification Components | An assembly that reduced the moisture content of the supply air through moisture transfer with solid or liquid desiccants.

(C) Represented Values for Different Indoor Unit Combinations. (1) If a basic model includes only one type of indoor unit combination (i.e., ducted, non-ducted, or SDHV), a manufacturer must determine the represented values for the basic model in accordance with the sampling plan set forth in § 429.11 and paragraph (a)(1) of this section if the represented values are determined through testing, or in accordance with the provisions for applying an AEDM set forth in paragraph (a)(2) of this section and § 429.70. Indoor unit models must be selected in accordance with paragraph (a)(3)(ii)(B) of this section.

(2) If a basic model includes more than one type of indoor unit combination (i.e., ducted, non-ducted, and/or SDHV):

(i) A manufacturer must determine separate represented values for each type of indoor unit combination. If the represented values are determined through testing, a manufacturer must test, at a minimum, a single tested combination that represents each type of indoor unit combination included in that basic model. A manufacturer may alternatively determine separate represented values through application of an AEDM as set forth in paragraph (a)(2) of this section and § 429.70. Indoor unit models within the indoor unit combination must be selected in accordance with paragraph (a)(3)(ii)(B) of this section.

(ii) A manufacturer may also determine optional “mixed” representations by calculating the mean value across any two required representations described in the paragraph (a)(3)(ii)(C)(2)(i) of this section (i.e., a representation for “mixed ducted/non-ducted” would be determined by averaging the ducted representation and the non-ducted representation; a representation for “mixed ducted/SDHV” would be determined by averaging the ducted representation and the SDHV representation, and a representation for “mixed non-ducted/SDHV” would be determined by averaging the non-ducted representation and the SDHV representation).

(iii) Single package vertical units. When certifying to standards in terms of IEER, the following provisions apply.

(A) For individual model selection:

(1) Representations for a basic model must be based on the least efficient individual model(s) distributed in commerce among all otherwise comparable model groups comprising the basic model, except as provided in paragraph (a)(3)(iii)(A)(2) of this section for individual models that include components listed in table 4 to this paragraph (a)(3)(iii)(A). For the purpose of this paragraph (a)(3)(iii)(A)(1), “otherwise comparable model group” means a group of individual models distributed in commerce within the basic model that do not differ in components that affect energy consumption as measured according to the applicable test procedure specified at 10 CFR 431.96 other than those listed in table 4 to this paragraph (a)(3)(iii)(A). An otherwise comparable model group may include individual models distributed in commerce with any combination of the components listed in table 4 (or none of the components listed in table 4). An otherwise comparable model group may consist of only one individual model.

(2) For a basic model that includes individual models distributed in commerce with components listed in table 4 to this paragraph (a)(3)(iii)(A), the requirements for determining representations apply only to the individual model(s) of a specific otherwise comparable model group distributed in commerce with the least number (which could be zero) of components listed in table 4 included in individual models of the group. Testing under this paragraph (a)(3)(iii)(A)(2) shall be consistent with any component-specific test provisions specified in section 4 of appendix G1 to subpart F of 10 CFR part 431.

Table 4 to Paragraph (a)(3)(iii)(A)—Specific Components for Single Package Vertical Units

Component | Description

Desiccant Dehumidification Components | An assembly that reduces the moisture content of the supply air through moisture transfer with solid or liquid desiccants.

Air Economizers | An automatic system that enables a cooling system to supply outdoor air to reduce or eliminate the need for mechanical cooling during mid or cold weather.

Ventilation Energy Recovery System (VERS) | An assembly that preconditions outdoor air entering the equipment through direct or indirect thermal and/or moisture exchange with the exhaust air, which is defined as the building air being exhausted to the outside from the equipment.

Steam/Hydronic Heat Coils | Coils used to provide supplemental heating.

Hot Gas Reheat | A heat exchanger located downstream of the indoor coil that heats the Supply Air during cooling operation using high pressure refrigerant in order to increase the ratio of moisture removal to Cooling Capacity provided by the equipment.

Fire/Smoke/Isolation Dampers | A damper assembly including means to open and close the damper mounted at the supply or return duct opening of the equipment.

Powered Exhaust/Powered Return Air Fans | A powered exhaust fan is a fan that transfers directly to the outside a portion of the building air that is returning to the unit, rather than allowing it to recirculate to the indoor coil and back to the building. A powered return fan is a fan that draws building air into the equipment.

Sound Traps/Sound Attenuators | An assembly of structures through which the supply air passes before leaving the equipment or through which the return air from the building passes immediately after entering the equipment for which the sound insertion loss is at least 6 dB for the 125 Hz octave band frequency range.

Hot Gas Bypass | A method to adjust the cooling delivered by the equipment in which some portion of the hot high-pressure refrigerant from the discharge of the compressor(s) is diverted from its normal flow to the outdoor coil and is instead allowed to enter the indoor coil to modulate the capacity of a refrigeration circuit or to prevent evaporator coil freezing.

(B) The represented value of cooling capacity must be between 95 percent and 100 percent of the mean of the capacities measured for the units in the sample selected as described in paragraph (a)(1)(ii) of this section, or between 95 percent and 100 percent of the net sensible cooling capacity output simulated by the alternative energy-efficiency determination method (AEDM) as described in paragraph (a)(2) of this section.

(C) Represented values must be based on performance (either through testing or by applying an AEDM) of individual models with components and features that are selected in accordance with section 4 of appendix G1 to subpart F of 10 CFR part 431.

(iv) Computer room air conditioners. When certifying to standards in terms of net sensible coefficient of performance (NSenCOP), the following provisions apply.

(A) For individual model selection:

(1) Representations for a basic model must be based on the least-efficient individual model(s) distributed in commerce among all otherwise comparable model groups comprising the basic model, except as provided in paragraph (a)(3)(iv)(A)(2) of this section for individual models that include components listed in table 5 to paragraph (a)(3)(iv)(A) of this section. For the purpose of this paragraph (a)(3)(iv)(A)(1), otherwise comparable model group means a group of individual models distributed in commerce within the basic model that do not differ in components that affect energy consumption as measured according to the applicable test procedure specified at 10 CFR 431.96 other than those listed in table 5 to paragraph (a)(3)(iv)(A) of this section. An otherwise comparable model group may include individual models distributed in commerce with any combination of the components listed in table 5 (or none of the components listed in table 5). An otherwise comparable model group may consist of only one individual model.

(2) For a basic model that includes individual models distributed in commerce, with components listed in table 5 to paragraph (a)(3)(iv)(A) of this section, the requirements for determining representations apply only to the individual model(s) of a specific otherwise comparable model group distributed in commerce with the least number (which could be zero) of components listed in table 5 to paragraph (a)(3)(iv)(A) included in individual models of the group. Testing under this paragraph (a)(3)(iv)(A)(2) shall be consistent with any component-specific test provisions specified in section 4 of appendix E1 to subpart F of 10 CFR part 431.

Table 5 to Paragraph (a)(3)(iv)(A)—Specific Components for Computer Room Air Conditioners

Component | Description

Air Economizers | An automatic system that enables a cooling system to supply and use outdoor air to reduce or eliminate the need for mechanical cooling during mild or cold weather.

Process Heat Recovery/Reclaim Coils/Thermal Storage | A heat exchanger located inside the unit that conditions the equipment's supply air using energy transferred from an external source using a vapor, gas, or liquid.

Evaporative Pre-cooling of Air-cooled Condenser Intake Air | Water is evaporated into the air entering the air-cooled condenser to lower the dry-bulb temperature and thereby increase efficiency of the refrigeration cycle.

Steam/Hydronic Heat Coils | Coils used to provide supplemental heat.

Refrigerant Reheat Coils | A heat exchanger located downstream of the indoor coil that heats the supply air during cooling operation using high pressure refrigerant in order to increase the ratio of moisture removal to cooling capacity provided by the equipment.

Powered Exhaust/Powered Return Air Fans | A powered exhaust fan is a fan that transfers directly to the outside a portion of the building air that is returning to the unit, rather than allowing it to recirculate to the indoor coil and back to the building. A powered return air fan is a fan that draws building air into the equipment.

Compressor Variable Frequency Drive (VFD) | A device connected electrically between the equipment's power supply connection and the compressor that can vary the frequency of power supplied to the compressor in order to allow variation of the compressor's rotational speed. If the manufacturer chooses to make representations for performance at part-load and/or low-ambient conditions, compressor VFDs must be treated consistently for all cooling capacity tests for the basic model (i.e., if the compressor VFD is installed and active for the part-load and/or low-ambient tests, it must also be installed and active for the NSenCOP test).

Fire/Smoke/Isolation Dampers | A damper assembly including means to open and close the damper mounted at the supply or return duct opening of the equipment.

Non-Standard Indoor Fan Motors | The standard indoor fan motor is the motor specified in the manufacturer's installation instructions for testing and shall be distributed in commerce as part of a particular model. A non-standard motor is an indoor fan motor that is not the standard indoor fan motor and that is distributed in commerce as part of an individual model within the same basic model.

For a non-standard indoor fan motor(s) to be considered a specific component for a basic model (and thus subject to the provisions of paragraph (a)(3)(iv)(A) of this section), the following provisions must be met:

1. Non-standard indoor fan motor(s) must meet the minimum allowable efficiency determined per section D.2.1 of AHRI 1360-2022 (incorporated by reference, see § 429.4) (i.e., for non-standard indoor fan motors) or per section D.2.2 of AHRI 1360-2022 for non-standard indoor integrated fan and motor combinations).

If the standard indoor fan motor can vary fan speed through control system adjustment of motor speed, all non-standard indoor fan motors must also allow speed control (including with the use of VFD).

Humidifiers | A device placed in the supply air stream for moisture evaporation and distribution. The device may require building steam or water, hot water, electricity, or gas to operate.

Flooded Condenser Head Pressure Controls | An assembly, including a receiver and head pressure control valve, used to allow for unit operation at lower outdoor ambient temperatures than the standard operating control system.

Chilled Water Dual Cooling Coils | A secondary chilled water coil added in the indoor air stream for use as the primary or secondary cooling circuit in conjunction with a separate chiller.

Condensate Pump | A device used to pump condensate and/or humidifier drain water from inside the unit to a customer drain outside the unit.

(B) The represented value of net sensible cooling capacity must be between 95 percent and 100 percent of the mean of the capacities measured for the units in the sample selected as described in paragraph (a)(1)(ii) of this section, or between 95 percent and 100 percent of the net sensible cooling capacity output simulated by the AEDM as described in paragraph (a)(2) of this section.

(v) Water-Source Heat Pumps. When certifying to standards in terms of IEER and ACOP, the following provisions apply.

(A) Individual model selection:

(1) Representations for a basic model must be based on the least efficient individual model(s) distributed in commerce among all otherwise comparable model groups comprising the basic model, except as provided in paragraph (a)(3)(v)(A)(2) of this section for individual models that include components listed in table 6 to paragraph (a)(3)(v)(A) of this section. For the purpose of this paragraph (a)(3)(v)(A)(1), “otherwise comparable model group” means a group of individual models distributed in commerce within the basic model that do not differ in components that affect energy consumption as measured according to the applicable test procedure specified at 10 CFR 431.96 other than those listed in table 6 to paragraph (a)(3)(v)(A) of this section. An otherwise comparable model group may include individual models distributed in commerce with any combination of the components listed in table 6 (or none of the components listed in table 6) to paragraph (a)(3)(v)(A) of this section. An otherwise comparable model group may consist of only one individual model.

(2) For a basic model that includes individual models distributed in commerce with components listed in table 6 to paragraph (a)(3)(v)(A) of this section, the requirements for determining representations apply only to the individual model(s) of a specific otherwise comparable model group distributed in commerce with the least number (which could be zero) of components listed in table 6 to paragraph (a)(3)(v)(A) of this section included in individual models of the group. Testing under this paragraph shall be consistent with any component-specific test provisions specified in section 3 of appendix C1 to subpart F of 10 CFR part 431.

Table 6 to Paragraph (a)(3)(v)(A)—Specific Components for Water Source Heat Pumps

Component | Description

Air Economizers | An automatic system that enables a cooling system to supply outdoor air to reduce or eliminate the need for mechanical cooling during mild or cold weather.

Condenser Pumps/Valves/Fittings | Additional components in the water circuit for water control or filtering.

Condenser Water Reheat | A heat exchanger located downstream of the indoor coil that heats the supply air during cooling operation using water from the condenser coil in order to increase the ratio of moisture removal to cooling capacity provided by the equipment.

Desiccant Dehumidification Components | An assembly that reduces the moisture content of the supply air through moisture transfer with solid or liquid desiccants.

Desuperheater | A heat exchanger located downstream of the compressor on the high-pressure vapor line that moves heat to an external source, such as potable water.

Fire/Smoke/Isolation Dampers | A damper assembly including means to open and close the damper mounted at the supply or return duct opening of the equipment.

Grill Options | Special grills used to direct airflow in unique applications (such as up and away from a rear wall).

Indirect/Direct Evaporative Cooling of Ventilation Air | Water is used indirectly or directly to cool ventilation air. In a direct system the water is introduced directly into the ventilation air and in an indirect system the water is evaporated in secondary air stream and the heat is removed through a heat exchanger.

Non-Standard High-Static Indoor Fan Motors | The standard indoor fan motor is the motor specified in the manufacturer's installation instructions for testing and shall be distributed in commerce as part of a particular model. A non-standard high-static motor is an indoor fan motor that is not the standard indoor fan motor and that is distributed in commerce as part of an individual model within the same basic model. For a non-standard high-static indoor fan motor(s) to be considered a specific component for a basic model (and thus subject to the provisions of paragraph (a)(3)(v)(A)(2) of this section), the following 2 provisions must be met:

1. Non-standard high-static indoor fan motor(s) must meet the minimum allowable efficiency determined per section D.4.1 of AHRI 600-2023 (incorporated by reference, see § 429.4) for non-standard high-static indoor fan motors, or per section D.4.2 of AHRI 600-2023 for non-standard high-static indoor integrated fan and motor combinations.

2. If the standard indoor fan motor can vary fan speed through control system adjustment of motor speed, all non-standard high-static indoor fan motors must also allow speed control (including with the use of a variable-frequency drive).

Powered Exhaust/Powered Return Air Fans | A powered exhaust fan is a fan that transfers directly to the outside a portion of the building air that is returning to the unit, rather than allowing it to recirculate to the indoor coil and back to the building. A powered return fan is a fan that draws building air into the equipment.

Process Heat Recovery/Reclaim Coils/Thermal Storage | A heat exchanger located inside the unit that conditions the equipment's supply air using energy transferred from an external source using a vapor, gas, or liquid.

Refrigerant Reheat Coils | A heat exchanger located downstream of the indoor coil that heats the supply air during cooling operation using high-pressure refrigerant in order to increase the ratio of moisture removal to cooling capacity provided by the equipment.

Sound Traps/Sound Attenuators | An assembly of structures through which the supply air passes before leaving the equipment or through which the return air from the building passes immediately after entering the equipment for which the sound insertion loss is at least 6 dB for the 125 Hz octave band frequency range.

Steam/Hydronic Heat Coils | Coils used to provide supplemental heating.

Ventilation Energy Recovery System (VERS) | An assembly that preconditions outdoor air entering the equipment through direct or indirect thermal and/or moisture exchange with the exhaust air, which is defined as the building air being exhausted to the outside from the equipment.

Waterside Economizer | A heat exchanger located upstream of the indoor coil that conditions the supply air when system water loop conditions are favorable so as not to utilize compressor operation.

(B) The represented value of cooling capacity must be between 95 percent and 100 percent of the mean of the cooling capacities measured for the units in the sample selected as described in paragraph (a)(1)(ii) of this section, or between 95 percent and 100 percent of the cooling capacity output simulated by the AEDM as described in paragraph (a)(2) of this section.

(vi) Commercial package air conditioning and heating equipment (excluding air-cooled equipment with a cooling capacity less than 65,000 Btu/h). Before May 15, 2025, the provisions in 10 CFR 429.43, revised as of January 1, 2024, are applicable. On and after May 15, 2025, when certifying to energy conservation standards in terms of EER or IEER and (as applicable) COP, the provisions in paragraph (a)(3)(vi)(B) of this section apply. When certifying to energy conservation standards in terms of IVEC and (as applicable) IVHE, all provisions in this paragraph (a)(3)(vi) apply.

(A) For individual model selection when certifying to energy conservation standards in terms of IVEC and (as applicable) IVHE:

(1) Representations for a basic model must be based on the least-efficient individual model(s) distributed in commerce among all otherwise comparable model groups comprising the basic model, with selection of the least-efficient individual model considering all options for factory-installed components and manufacturer-supplied components for field installation, except as provided in paragraph (a)(3)(vi)(A)(2) of this section for individual models that include components listed in table 7 to paragraph (a)(3)(vi)(A) of this section. For the purpose of this paragraph (a)(3)(vi)(A)(1), “otherwise comparable model group” means a group of individual models distributed in commerce within the basic model that do not differ in components that affect energy consumption as measured according to the applicable test procedure specified at 10 CFR 431.96 other than those listed in table 7 to paragraph (a)(3)(vi)(A) of this section. An otherwise comparable model group may include individual models distributed in commerce with any combination of the components listed in table 7 (or none of the components listed in table 7). An otherwise comparable model group may consist of only one individual model.

(2) For a basic model that includes individual models distributed in commerce with components listed in table 7 to paragraph (a)(3)(vi)(A) of this section, the requirements for determining representations apply only to the individual model(s) of a specific otherwise comparable model group distributed in commerce with the least number (which could be zero) of components listed in table 7 to paragraph (a)(3)(vi)(A) included in individual models of the group. Testing under this paragraph (a)(3)(vi)(A)(2) shall be consistent with any component-specific test provisions specified in section 6 of appendix A1 to subpart F of 10 CFR part 431.

Table 7 to Paragraph (a)(3)(vi)(A)—Specific Components for Commercial Package Air Conditioning and Heating Equipment

[Excluding air-cooled equipment with a cooling capacity of less than 65,000 Btu/h]

Component | Description

Air Economizers | An automatic system that enables a cooling system to supply outdoor air to reduce or eliminate the need for mechanical cooling during mild or cold weather.

Desiccant Dehumidification Components | An assembly that reduces the moisture content of the supply air through moisture transfer with solid or liquid desiccants.

Evaporative Pre-cooling of Air-cooled Condenser Intake Air | Water is evaporated into the air entering the air-cooled condenser to lower the dry-bulb temperature and thereby increase efficiency of the refrigeration cycle.

Fire/Smoke/Isolation Dampers | A damper assembly including means to open and close the damper mounted at the supply or return duct opening of the equipment.

Indirect/Direct Evaporative Cooling of Ventilation Air | Water is used indirectly or directly to cool ventilation air. In a direct system, the water is introduced directly into the ventilation air, and in an indirect system, the water is evaporated in secondary air stream, and the heat is removed through a heat exchanger.

Non-Standard Ducted Condenser Fans (not applicable to Double-duct Systems) | A higher-static condenser fan/motor assembly designed for external ducting of condenser air that provides greater pressure rise and has a higher rated motor horsepower than the condenser fan provided as a standard component with the equipment.

Non-Standard High-Static Indoor Fan Motors | The standard indoor fan motor is the motor specified in the manufacturer's installation instructions for testing and shall be distributed in commerce as part of a particular model. A non-standard motor is an indoor fan motor that is not the standard indoor fan motor and that is distributed in commerce as part of an individual model within the same basic model.

For a non-standard high-static indoor fan motor(s) to be considered a specific component for a basic model (and thus subject to the provisions of paragraph (a)(3)(vi)(A)(2) of this section), the following provisions must be met:

(1) Non-standard high-static indoor fan motor(s) must meet the minimum allowable efficiency determined per section D.3.1 of AHRI 1340-2023 (incorporated by reference, see § 429.4) for non-standard high-static indoor fan motors or per section D.3.2 of AHRI 1340-2023 for non-standard high-static indoor integrated fan and motor combinations.

(2) If the standard indoor fan motor can vary fan speed through control system adjustment of motor speed, all non-standard high-static indoor fan motors must also allow speed control (including with the use of variable-frequency drive).

Powered Exhaust/Powered Return Air Fans | A powered exhaust fan is a fan that transfers directly to the outside a portion of the building air that is returning to the unit, rather than allowing it to recirculate to the indoor coil and back to the building. A powered return fan is a fan that draws building air into the equipment.

Process Heat recovery/Reclaim Coils/Thermal Storage | A heat exchanger located inside the unit that conditions the equipment's supply air using energy transferred from an external source using a vapor, gas, or liquid.

Refrigerant Reheat Coils | A heat exchanger located downstream of the indoor coil that heats the supply air during cooling operation using high pressure refrigerant in order to increase the ratio of moisture removal to cooling capacity provided by the equipment.

Sound Traps/Sound Attenuators | An assembly of structures through which the supply air passes before leaving the equipment or through which the return air from the building passes immediately after entering the equipment for which the sound insertion loss is at least 6 dB for the 125 Hz octave band frequency range.

Steam/Hydronic Heat Coils | Coils used to provide supplemental heating.

Ventilation Energy Recovery System (VERS) | An assembly that preconditions outdoor air entering the equipment through direct or indirect thermal and/or moisture exchange with the exhaust air, which is defined as the building air being exhausted to the outside from the equipment.

(B) The represented value of total cooling capacity must be between 95 percent and 100 percent of the mean of the total cooling capacities measured for the units in the sample selected as described in paragraph (a)(1)(ii) of this section, or between 95 percent and 100 percent of the total cooling capacity output simulated by the AEDM as described in paragraph (a)(2) of this section.

(C) Representations of IVEC and IVHE (including IVHEc, as applicable) must be determined using a minimum part-load airflow that is no lower than the highest of the following:

(1) The minimum part-load airflow obtained using the as-shipped system control settings;

(2) The minimum part-load airflow obtained using the default system control settings specified in the manufacturer installation instructions (as applicable); and

(3) The minimum airflow rate specified in section 5.18.2 of AHRI 1340-2023.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to commercial HVAC equipment; and

(2) Pursuant to § 429.12(b)(13), a certification report must include the following public equipment-specific information:

(i) Commercial package air-conditioning equipment (except commercial package air conditioning equipment that is air-cooled with a cooling capacity less than 65,000 Btu/h):

(A) When certifying compliance with an EER standard: the energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)), the rated cooling capacity in British thermal units per hour (Btu/h), and the type(s) of heating used by the basic model (e.g., electric, gas, hydronic, none).

(B) When certifying compliance with an IEER standard: the integrated energy efficiency ratio (IEER in British thermal units per Watt-hour (Btu/Wh)), the rated cooling capacity in British thermal units per hour (Btu/h), and the type(s) of heating used by the basic model (e.g., electric, gas, hydronic, none).

(ii) Commercial package heating equipment (except commercial package heating equipment that is air-cooled with a cooling capacity less than 65,000 Btu/h):

(A) When certifying compliance with an EER standard: the energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)), the coefficient of performance (COP), the rated cooling capacity in British thermal units per hour (Btu/h), and the type(s) of heating used by the basic model (e.g., electric, gas, hydronic, none).

(B) When certifying compliance an IEER standard: the integrated energy efficiency ratio (IEER in British thermal units per Watt-hour (Btu/Wh)), the coefficient of performance (COP), the rated cooling capacity in British thermal units per hour (Btu/h), and the type(s) of heating used by the basic model (e.g., electric, gas, hydronic, none).

(iii) Packaged terminal air conditioners: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)), the rated cooling capacity in British thermal units per hour (Btu/h), the wall sleeve dimensions in inches (in), and the duration of the break-in period (hours).

(iv) Packaged terminal heat pumps: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/W-h)), the coefficient of performance (COP), the rated cooling capacity in British thermal units per hour (Btu/h), the wall sleeve dimensions in inches (in), and the duration of the break-in period (hours).

(v) Single package vertical air conditioners: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)) and the rated cooling capacity in British thermal units per hour (Btu/h).

(vi) Single package vertical heat pumps: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)), the coefficient of performance (COP), and the rated cooling capacity in British thermal units per hour (Btu/h).

(vii) Variable refrigerant flow multi-split air-cooled air conditioners (other than air-cooled with rated cooling capacity less than 65,000 btu/h):

(A) When certifying compliance with an EER standard: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)), rated cooling capacity in British thermal units per hour (Btu/h), and the type(s) of heating used by the basic model (e.g., electric, gas, hydronic, none).

(B) When certifying compliance with an IEER standard, the following must be certified for each tested combination as required under paragraph (a)(3)(ii)(C) of this section: The integrated energy efficiency ratio (IEER) in British thermal units per Watt-hour (Btu/Wh)); the rated cooling capacity in British thermal units per hour (Btu/h); whether the represented values are for a non-ducted, ducted, or SDHV tested combination, or for a mixed representation of any two of the tested combinations; and the outdoor unit(s) and indoor units identified in the tested combination. The following must be certified for each basic model: the type(s) of heating used (i.e., electric, gas, hydronic, none); and the refrigerant used to determine the represented values.

(viii) Variable refrigerant flow multi-split heat pumps (other than air-cooled with rated cooling capacity less than 65,000 btu/h):

(A) When certifying compliance with an EER standard: The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)), the coefficient of performance (COP), rated cooling capacity in British thermal units per hour (Btu/h), and the type(s) of heating used by the basic model (e.g., electric, gas, hydronic, none).

(B) When certifying compliance with an IEER standard, the following must be certified for each tested combination as required under paragraph (a)(3)(ii)(C) of this section: The integrated energy efficiency ratio (IEER) in British thermal units per Watt-hour (Btu/Wh); the coefficient of performance (COP); the rated cooling capacity in British thermal units per hour (Btu/h); the rated heating capacity (Btu/h); whether the represented values are for a non-ducted, ducted, or SDHV tested combination, or for a mixed representation of any two of the tested combinations; and the outdoor unit(s) and indoor units identified in the tested combination. The following must be certified for each basic model: the type(s) of heating used (i.e., electric, gas, hydronic, none); and the refrigerant used to determine the represented values.

(ix) Computer room air-conditioners: The net sensible cooling capacity in British thermal units per hour (Btu/h), the net cooling capacity in British thermal units per hour (Btu/h), the configuration (upflow/downflow), economizer presence (yes or no), condenser medium (air, water, or glycol-cooled), sensible coefficient of performance (SCOP), and rated airflow in standard cubic feet per minute (SCFM).

(x) Water source heat pumps (other than variable refrigerant flow): The energy efficiency ratio (EER in British thermal units per Watt-hour (Btu/Wh)), the coefficient of performance (COP), the rated cooling capacity in British thermal units per hour (Btu/h), and the type(s) of heating used by the basic model (e.g., electric, gas, hydronic, none).

(3) Pursuant to § 429.12(b)(13), a certification report must include the following additional equipment-specific information:

(i) Whether the basic model is engineered-to-order; and

(ii) For any basic model rated with an AEDM, whether the manufacturer elects the witness test option for verification testing. (See § 429.70(c)(5)(iii) for options). However, the manufacturer may not select more than 10% of AEDM-rated basic models.

(4) Pursuant to § 429.12(b)(13), a certification report must include supplemental information submitted in PDF format. The equipment-specific, supplemental information must include any additional testing and testing set up instructions (e.g., charging instructions) for the basic model; identification of all special features that were included in rating the basic model; and all other information (e.g., operational codes or component settings) necessary to operate the basic model under the required conditions specified by the relevant test procedure. A manufacturer may also include with a certification report other supplementary items in PDF format (e.g., manuals) for DOE consideration in performing testing under subpart C of this part. The equipment-specific, supplemental information must include at least the following:

(i) Commercial package air-conditioning equipment (except commercial package air conditioning equipment that is air-cooled with a cooling capacity less than 65,000 Btu/h): rated indoor airflow in standard cubic feet per minute (SCFM) for each fan coil; water flow rate in gallons per minute (gpm) for water-cooled units only; rated external static pressure in inches of water; frequency or control set points for variable speed components (e.g., compressors, VFDs); required dip switch/control settings for step or variable components; a statement whether the model will operate at test conditions without manufacturer programming; any additional testing instructions, if applicable; and if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating. When certifying compliance with an IEER standard, rated indoor airflow in SCFM for each part-load point used in the IEER calculation and any special instructions required to obtain operation at each part-load point, such as frequency or control set points for variable speed components (e.g., compressors, VFDs), dip switch/control settings for step or variable components, or any additional applicable testing instructions, are also required.

(ii) Commercial package heating equipment (except commercial package heating equipment that is air-cooled with a cooling capacity less than 65,000 Btu/h): The rated heating capacity in British thermal units per hour (Btu/h); rated indoor airflow in standard cubic feet per minute (SCFM) for each fan coil (in cooling mode); rated airflow in SCFM for each fan coil in heating mode if the unit is designed to operate with different airflow rates for cooling and heating mode; water flow rate in gallons per minute (gpm) for water cooled units only; rated external static pressure in inches of water; frequency or control set points for variable speed components (e.g., compressors, VFDs); required dip switch/control settings for step or variable components; a statement whether the model will operate at test conditions without manufacturer programming; any additional testing instructions, if applicable; and if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating. When certifying compliance with an IEER standard, rated indoor airflow in SCFM for each part-load point used in the IEER calculation and any special instructions required to obtain operation at each part-load point, such as frequency or control set points for variable speed components (e.g., compressors, VFDs), dip switch/control settings for step or variable components, or any additional applicable testing instructions, are also required.

(iii) Variable refrigerant flow multi-split air-cooled air conditioners (other than air-cooled with rated cooling capacity less than 65,000 btu/h):

(A) When certifying compliance with an EER standard: The nominal cooling capacity in British thermal units per hour (Btu/h); outdoor unit(s) and indoor units identified in the tested combination; components needed for heat recovery, if applicable; rated airflow in standard cubic feet per minute (scfm) for each indoor unit; rated static pressure in inches of water; compressor frequency setpoints; required dip switch/control settings for step or variable components; a statement whether the model will operate at test conditions without manufacturer programming; any additional testing instructions if applicable; if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating; and which, if any, special features were included in rating the basic model. Additionally, upon DOE request, the manufacturer must provide a layout of the system set-up for testing including charging instructions consistent with the installation manual.

(B) When certifying compliance with an IEER standard (for requirements in this list pertaining to or affected by indoor units, the requirements must be certified for each tested combination as required under paragraph (a)(3)(ii)(C) of this section): The nominal cooling capacity in British thermal units per hour (Btu/h) for each indoor and outdoor unit; identification of the indoor units to be thermally active for each IEER test point; the rated indoor airflow for the full-load cooling and all part-load cooling tests (for each indoor unit) in standard cubic feet per minute (scfm); the indoor airflow-control setting to be used in the full-load cooling test (for each indoor unit); system start-up or initialization procedures, including conditions and duration; compressor break-in period duration of 20 hours or less; the frequency of oil recovery cycles; operational settings for all critical parameters to be controlled at each of the four IEER cooling test conditions; all dip switch/control settings used for the full-load cooling test; identification of any system control device required for testing; a hierarchy of instructions for adjustment of critical parameters to reduce cooling capacity during IEER cooling tests (to be used if, using initial critical parameter settings, the measured cooling capacity is more than 3 percent above the target cooling capacity); any additional testing instructions if applicable; and if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating. Instructions for conducting a controls verification procedure (as described in Appendix C of AHRI 1230-2021, (incorporated by reference, see § 429.4) at each of the four IEER cooling test conditions must also be provided, including: the required thermostat setpoints to ensure control for 80 °F dry-bulb temperature when accounting for setpoint bias, the starting indoor dry-bulb temperature, and the indoor dry-bulb temperature ramp rate (R2). Additionally, the manufacturer must provide a layout of the system set-up for testing (including a piping diagram, a power wiring diagram, a control wiring diagram, and identification of the location of the component(s) corresponding to each critical parameter to be controlled), set-up instructions for indoor units and outdoor units, and charging instructions consistent with the installation manual.

(iv) Variable refrigerant flow multi-split heat pumps (other than air-cooled with rated cooling capacity less than 65,000 btu/h):

(A) When certifying compliance with an EER standard: The nominal cooling capacity in British thermal units per hour (Btu/h); rated heating capacity in British thermal units per hour (Btu/h); outdoor unit(s) and indoor units identified in the tested combination; components needed for heat recovery, if applicable; rated airflow in standard cubic feet per minute (scfm) for each indoor unit; water flow rate in gallons per minute (gpm) for water-cooled units only; rated static pressure in inches of water; compressor frequency setpoints; required dip switch/control settings for step or variable components; a statement whether the model will operate at test conditions without manufacturer programming; any additional testing instructions if applicable; if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating; and which, if any, special features were included in rating the basic model. Additionally, upon DOE request, the manufacturer must provide a layout of the system set-up for testing including charging instructions consistent with the installation manual.

(B) When certifying compliance with an IEER standard (for requirements in this list pertaining to or affected by indoor units, the requirements must be certified for each tested combination as required under paragraph (a)(3)(ii)(C) of this section): The nominal cooling capacity in British thermal units per hour (Btu/h) for each indoor and outdoor unit; the nominal heating capacity (Btu/h) for each indoor and outdoor unit; components needed for heat recovery, if applicable; identification of the indoor units to be thermally active for each IEER test point; the rated indoor airflow for the full-load cooling, full-load heating, and all part-load cooling tests (for each indoor unit) in standard cubic feet per minute (scfm); the indoor airflow-control setting to be used in the full-load cooling test (for each indoor unit); the airflow-control setting to be used in the full-load heating test (for each indoor unit); for water-cooled units—the rated water flow rate in gallons per minute (gpm); system start-up or initialization procedures, including conditions and duration; compressor break-in period duration of 20 hours or less; the frequency of oil-recovery cycles; operational settings for all critical parameters to be controlled at each of the four IEER cooling test conditions; operational settings for all critical parameters to be controlled for the heating test; all dip switch/control settings used for the full-load cooling and full-load heating tests; identification of any system control device required for testing; a hierarchy of instructions for adjustment of critical parameters to reduce cooling capacity during IEER cooling tests (to be used if, using initial critical parameter settings, the measured cooling capacity is more than 3 percent above the target cooling capacity); any additional testing instructions if applicable; and if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating. Instructions for conducting a controls verification procedure (as described in Appendix C of AHRI 1230-2021) at each of the four IEER cooling test conditions must also be provided, including the required thermostat setpoints to ensure control for 80 °F dry-bulb temperature when accounting for setpoint bias, the starting indoor dry-bulb temperature, and the indoor dry-bulb temperature ramp rate (R2). Additionally, the manufacturer must provide a layout of the system set-up for testing (including a piping diagram, a power wiring diagram, a control wiring diagram, and identification of the location of the component(s) corresponding to each critical parameter to be adjusted), set-up instructions for indoor units and outdoor units, and charging instructions consistent with the installation manual.

(v) Water source heat pumps: The nominal cooling capacity in British thermal units per hour (Btu/h); rated heating capacity in British thermal units per hour (Btu/h); rated airflow in standard cubic feet per minute (SCFM) for each indoor unit; water flow rate in gallons per minute (gpm); rated static pressure in inches of water; refrigerant charging instructions, (e.g., refrigerant charge, superheat and/or subcooling temperatures); frequency set points for variable speed components (e.g., compressors, VFDs), including the required dip switch/control settings for step or variable components; a statement whether the model will operate at test conditions without manufacturer programming; any additional testing instructions if applicable; if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating; and which, if any, special features were included in rating the basic model.

(vi) Single package vertical air-conditioners: Any additional testing instructions, if applicable; if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating; and which, if any, special features were included in rating the basic model.

(vii) Single package vertical heat pumps: Any additional testing instructions, if applicable; if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating; and which, if any, special features were included in rating the basic model.

(viii) Computer room air-conditioners: Any additional testing instructions, if applicable; and which, if any, special features were included in rating the basic model.

(ix) Package terminal air conditioners and package terminal heat pumps: Any additional testing instructions, if applicable.

(5) For variable refrigerant flow multi-split air conditioners and heat pumps (other than air-cooled with rated cooling capacity less than 65,000 btu/h), if a manufacturer has knowledge that any of its certified operational settings for critical parameters to be controlled during IEER tests (per paragraph (b)(4)(vii)(B) or (b)(4)(viii)(B) of this section) are invalid according to the results of a controls verification procedure conducted according to § 429.134(v)(3), then the manufacturer must re-rate and re-certify using valid operational settings for critical parameters for all affected basic models.

(c) Alternative methods for determining efficiency or energy use for commercial HVAC equipment can be found in § 429.70 of this subpart.

[76 FR 12451, Mar. 7, 2011; 76 FR 24775, May 2, 2011, as amended at 78 FR 79594, Dec. 31, 2013; 79 FR 25501, May 5, 2014; 80 FR 151, Jan. 5, 2015; 80 FR 37147, June 30, 2015; 80 FR 79668, Dec. 23, 2015; 87 FR 45195, July 27, 2022; 87 FR 63892, Oct. 20, 2022; 87 FR 65667, Nov. 1, 2022; 87 FR 75166, Dec. 7, 2022; 87 FR 77317, Dec. 16, 2022; 88 FR 21836, Apr. 11, 2023; 88 FR 84226, Dec.4, 2023; 89 FR 44033, May 20, 2024; 89 FR 82064, Oct. 9, 2024; 90 FR 43381, Sept. 9, 2025]

§ 429.44 Commercial water heating equipment.

(a) For residential-duty commercial water heaters, all represented values must be determined in accordance with § 429.17.

(b) Determination of represented values for all types of commercial water heaters except residential-duty commercial water heaters. Manufacturers must determine the represented values, which includes the certified ratings, for each basic model of commercial water heating equipment except residential-duty commercial water heaters, either by testing, in conjunction with the applicable sampling provisions, or by applying an AEDM as set forth in § 429.70.

(1) Units to be tested. If the represented value for a given basic model is determined through testing:

(i) The general requirements of § 429.11 apply; and

(ii) A sample of sufficient size must be randomly selected and tested to ensure that:

(A) Any represented value of energy consumption or other measure of energy use of a basic model for which consumers would favor lower values must be greater than or equal to the higher of:

(1) The mean of the sample, where:

And, x is the sample mean; n is the number of samples; and xi is the ith sample; or,

(2) The upper 95-percent confidence limit (UCL) of the true mean divided by 1.05, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95-percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A to subpart B of this part). And,

(B) Any represented value of energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values must be less than or equal to the lower of:

(1) The mean of the sample, where:

And, x is the sample mean; n is the number of samples; and xi is the ith sample; or,

(2) The lower 95-percent confidence limit (LCL) of the true mean divided by 0.95, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95-percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A to subpart B of this part).

(2) Alternative efficiency determination methods. In lieu of testing, a represented value of efficiency or consumption for a basic model must be determined through the application of an AEDM pursuant to the requirements of § 429.70 and the provisions of this section, where:

(i) Any represented value of energy consumption or other measure of energy use of a basic model for which consumers would favor lower values must be greater than or equal to the output of the AEDM and less than or equal to the Federal standard for that basic model; and

(ii) Any represented value of energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values must be less than or equal to the output of the AEDM and greater than or equal to the Federal standard for that basic model.

(3) Rated input. The rated input for a basic model reported in accordance with paragraph (c)(2) of this section must be the maximum rated input listed on the nameplate for that basic model.

(c) Certification reports. For commercial water heating equipment other than residential-duty commercial water heaters:

(1) The requirements of § 429.12 apply; and

(2) Pursuant to § 429.12(b)(13), a certification report must include the following public equipment-specific information:

(i) Commercial electric storage water heaters with storage capacity less than or equal to 140 gallons: The standby loss in percent per hour (%/h) and the measured storage volume in gallons (gal).

(ii) Commercial gas-fired and oil-fired storage water heaters with storage capacity less than or equal to 140 gallons: The thermal efficiency in percent (%), the standby loss in British thermal units per hour (Btu/h), the rated storage volume in gallons (gal), and the rated input in British thermal units per hour (Btu/h).

(iii) Commercial water heaters and hot water supply boilers with storage capacity greater than 140 gallons: The thermal efficiency in percent (%); whether the storage volume is greater than 140 gallons (Yes/No); whether the tank surface area is insulated with at least R-12.5 (Yes/No); whether a standing pilot light is used (Yes/No); for gas or oil-fired water heaters, whether the basic model has a fire damper or fan-assisted combustion (Yes/No); and, if applicable, pursuant to § 431.110 of this chapter, the standby loss in British thermal units per hour (Btu/h); the measured storage volume in gallons (gal); and the rated input in British thermal units per hour (Btu/h).

(iv) Commercial gas-fired and oil-fired instantaneous water heaters with storage capacity greater than or equal to 10 gallons and gas-fired and oil-fired hot water supply boilers with storage capacity greater than or equal to 10 gallons: The thermal efficiency in percent (%); the standby loss in British thermal units per hour (Btu/h); the rated storage volume in gallons (gal); the rated input in British thermal units per hour (Btu/h); whether the water heater includes a storage tank with a storage volume greater than or equal to 10 gallons (Yes/No). For equipment that does not meet the definition of storage-type instantaneous water heaters (as set forth in 10 CFR 431.102), in addition to the requirements discussed previously in this paragraph (c)(2)(iv), the following must also be included in the certification report: whether the measured storage volume is determined using weight-based test in accordance with § 431.106 of this chapter or the calculation-based method in accordance with § 429.72; whether the water heater will initiate main burner operation based on a temperature-controlled call for heating that is internal to the water heater (Yes/No); whether the water heater is equipped with an integral pump purge functionality (Yes/No); if the water heater is equipped with integral pump purge, the default duration of the pump off delay (minutes).

(v) Commercial gas-fired and oil-fired instantaneous water heaters with storage capacity less than 10 gallons and gas-fired and oil-fired hot water supply boilers with storage capacity less than 10 gallons: The thermal efficiency in percent (%); the rated storage volume in gallons (gal), the rated input in British thermal units per hour (Btu/h); and whether the measured storage volume is determined using weight-based test in accordance with § 431.106 of this chapter or the calculation-based method in accordance with § 429.72.

(vi) Commercial unfired hot water storage tanks: The thermal insulation (i.e., R-value) and stored volume in gallons (gal).

(3) Pursuant to § 429.12(b)(13), a certification report must include the following additional, equipment-specific information:

(i) Whether the basic model is engineered-to-order; and

(ii) For any basic model rated with an AEDM, whether the manufacturer elects the witness test option for verification testing. (See § 429.70(c)(5)(iii) for options.) However, the manufacturer may not select more than 10 percent of AEDM-rated basic models to be eligible for witness testing.

(4) Pursuant to § 429.12(b)(13), a certification report may include supplemental testing instructions in PDF format. If necessary to run a valid test, the equipment-specific, supplemental information must include any additional testing and testing set-up instructions (e.g., whether a bypass loop was used for testing) for the basic model and all other information (e.g., operational codes or overrides for the control settings) necessary to operate the basic model under the required conditions specified by the relevant test procedure. A manufacturer may also include with a certification report other supplementary items in PDF format for DOE's consideration in performing testing under subpart C of this part. For example, for oil-fired commercial water heating equipment (other than residential-duty commercial water heaters): The allowable range for CO2 reading in percent (%) and the fuel pump pressure in pounds per square inch gauge (psig).

(d) Certification reports for residential-duty commercial water heaters. (1) The requirements of § 429.12 apply; and

(2) Pursuant to § 429.12(b)(13), a certification report for equipment must include the following public, equipment-specific information:

(i) Residential-duty commercial gas-fired and oil-fired storage water heaters: The uniform energy factor (UEF, rounded to the nearest 0.01), the rated storage volume in gallons (gal, rounded to the nearest 1 gal), the first-hour rating in gallons (gal, rounded to the nearest 1 gal), and the recovery efficiency in percent (%, rounded to the nearest 1%).

(ii) Residential-duty commercial electric instantaneous water heaters: The uniform energy factor (UEF, rounded to the nearest 0.01), the rated storage volume in gallons (gal, rounded to the nearest 1 gal), the maximum gallons per minute (gpm, rounded to the nearest 0.1 gpm), and the recovery efficiency in percent (%, rounded to the nearest 1%).

(e) Alternative methods for determining efficiency or energy use for commercial water heating equipment can be found in § 429.70 of this subpart.

[76 FR 12451, Mar. 7, 2011; 76 FR 24776, May 2, 2011, as amended at 78 FR 79594, Dec. 31, 2013; 79 FR 25504, May 5, 2014; 80 FR 151, Jan. 5, 2015; 79 FR 40565, July 11, 2014; 81 FR 79318, Nov. 10, 2016; 81 FR 96236, Dec. 29, 2016; 81 FR 96236, Dec. 29, 2016; 89 FR 82066, Oct. 9, 2024; 90 FR 43381, Sept. 9, 2025]

§ 429.45 Automatic commercial ice makers.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to automatic commercial ice makers; and

(2) For each basic model of automatic commercial ice maker selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of energy use, condenser water use, or other measure of consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(i) The mean of the sample, where:

And, x is the sample mean; n is the number of samples; and xi is the ith sample; or,

(ii) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the Student's t-Distribution Values for a 95 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A to this subpart).

(3) The harvest rate of a basic model is the mean of the measured harvest rates for each tested unit of the basic model, based on the same tests to determine energy use and condenser water use, if applicable. Round the mean harvest rate to the nearest pound of ice per 24 hours (lb/24 h) for harvest rates above 50 lb/24 h; round the mean harvest rate to the nearest 0.1 lb/24 h for harvest rates less than or equal to 50 lb/24 h.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to automatic commercial ice makers; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum energy use in kilowatt hours per 100 pounds of ice (kWh/100 lb ice), the maximum condenser water use in gallons per 100 pounds of ice (gal/100 lbs. ice), the harvest rate in pounds of ice per 24 hours (lbs. ice/24 hours), the type of cooling, and the equipment type.

[76 FR 12451, Mar. 7, 2011; 76 FR 24776, May 2, 2011, as amended at 87 FR 65899, Nov. 1, 2022; 89 FR 82067, Oct. 9, 2024; 90 FR 6789, Jan. 21, 2025; 90 FR 43381, Sept. 9, 2025]

§ 429.46 Commercial clothes washers.

Note 1 to § 429.46:

Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.46 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to commercial clothes washers; and

(2) For each basic model of commercial clothes washers, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of the integrated water factor or other measure of energy or water consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

Or,

(B) The upper 97 1/2 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and

(ii) Any represented value of the modified energy factor, active-mode energy efficiency ratio, water efficiency ratio, or other measure of energy or water consumption of a basic model for which consumers would favor higher values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

Or,

(B) The lower 97 1/2 percent confidence limit (LCL) of the true mean divided by 0.95, where:

(3) The clothes container capacity of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the measured clothes container capacity (C) of all tested units of the basic model.

(4) The corrected remaining moisture content (RMC) of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the final RMC value measured for all tested units of the basic model.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to commercial clothes washers; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information:

(i) The modified energy factor (MEFJ2), in cubic feet per kilowatt-hour per cycle (cu ft/kWh/cycle);

(ii) The integrated water factor (IWF), in gallons per cycle per cubic feet (gal/cycle/cu ft);

(iii) The clothes container capacity, in cubic feet (cu ft);

(iv) The type of loading (top-loading or front-loading); and

(v) The corrected RMC (expressed as a percentage).

(c) Reported values. Values reported pursuant to this section must be rounded as follows: Clothes container capacity to the nearest 0.1 cu ft, and corrected RMC to the nearest 0.1 percentage point.

[76 FR 12451, Mar. 7, 2011; 76 FR 24777, May 2, 2011, as amended at 79 FR 71630, Dec. 3, 2014; 87 FR 33379, June 1, 2022; 87 FR 43979, July 22, 2022]

§ 429.47 Distribution transformers.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to distribution transformers; and

(2) For each basic model of distribution transformer, efficiency must be determined either by testing, in accordance with § 431.193 and the provisions of this section, or by application of an AEDM that meets the requirements of § 429.70 and the provisions of this section.

(i) For each basic model selected for testing:

(A) If the manufacturer produces five or fewer units of a basic model over 6 months, each unit must be tested. A manufacturer may not use a basic model with a sample size of fewer than five units to substantiate an AEDM pursuant to § 429.70.

(B) If the manufacturer produces more than five units over 6 months, a sample of at least five units must be selected and tested.

(ii) Any represented value of efficiency of a basic model must satisfy the condition:

(b) Certification reports. (1) The requirements of § 429.12 are applicable to distribution transformers except that required information in paragraph (b) of this section may be reported by kVA grouping instead of by basic model and paragraph (b)(6) of this section does not apply; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: For the most and least efficient basic models within each “kVA grouping” for which part 431 prescribes an efficiency standard, the kVA rating, the insulation type (i.e., low-voltage dry-type, medium-voltage dry-type or liquid-immersed), the number of phases (i.e., single-phase or three-phase), and the basic impulse insulation level (BIL) group rating (for medium-voltage dry-types).

(c) Alternative methods for determining efficiency or energy use for distribution transformers can be found in § 429.70 of this subpart.

(d) Kilovolt ampere (kVA) grouping. As used in this section, a “kVA grouping” is a group of basic models which all have the same kVA rating, have the same insulation type (i.e., low-voltage dry-type, medium-voltage dry-type or liquid-immersed), have the same number of phases (i.e., single-phase or three-phase), and, for medium-voltage dry-types, have the same BIL group rating (i.e., 20-45 kV BIL, 46-95 kV BIL or greater than or equal to96 kV BIL).

§ 429.48 Illuminated exit signs.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to illuminated exit signs; and

(2) For each basic model of illuminated exit sign selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of input power demand or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

Or,

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:

and

(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

Or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:

(b) Certification reports. (1) The requirements of § 429.12 are applicable to illuminated exit signs; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The input power demand in watts (W) and the number of faces.

[76 FR 12451, Mar. 7, 2011; 76 FR 24778, May 2, 2011]

§ 429.49 Traffic signal modules and pedestrian modules.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to traffic signal modules and pedestrian modules; and

(2) For each basic model of traffic signal module or pedestrian module selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of estimated maximum and nominal wattage or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

Or,

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:

and

(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

Or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:

(b) Certification reports. (1) The requirements of § 429.12 are applicable to traffic signal modules and pedestrian modules; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The maximum wattage at 74 degrees Celsius (°C) in watts (W), the nominal wattage at 25 degrees Celsius (°C) in watts (W), and the signal type.

[76 FR 12451, Mar. 7, 2011; 76 FR 24778, May 2, 2011]

§ 429.50 Commercial unit heaters.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to commercial unit heaters; and

(2) [Reserved]

(b) Certification reports. (1) The requirements of § 429.12 are applicable to commercial unit heaters; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The type of ignition system and a declaration that the manufacturer has incorporated the applicable design requirements.

§ 429.51 Commercial pre-rinse spray valves.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 apply to commercial prerinse spray valves; and

(2) For each basic model of commercial prerinse spray valve, a sample of sufficient size must be randomly selected and tested to ensure that any represented value of flow rate must be greater than or equal to the higher of:

(i) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the i th sample; Or,

(ii) The upper 95-percent confidence limit (UCL) of the true mean divided by 1.10, where:

and, x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95-percent two-tailed confidence interval with n-1 degrees of freedom (from Appendix A of this subpart).

(b) Certification reports. (1) The requirements of § 429.12 are applicable to commercial prerinse spray valves; and

(2) Pursuant to § 429.12(b)(13), a certification report must include the following public product-specific information: The flow rate, in gallons per minute (gpm), rounded to the nearest 0.01 gpm, and the corresponding spray force, in ounce-force (ozf), rounded to the nearest 0.1 ozf.

[76 FR 12451, Mar. 7, 2011; 76 FR 24779, May 2, 2011, as amended at 78 FR 62986, Oct. 23, 2013; 80 FR 81453, Dec. 30, 2015; 81 FR 4801, Jan. 27, 2016]

§ 429.52 Refrigerated bottled or canned beverage vending machines.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to refrigerated bottled or canned beverage vending machine; and

(2) For each basic model of refrigerated bottled or canned beverage vending machine selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

Or,

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:

and

(ii) Any represented value of the energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

Or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:

(3) The representative value of refrigerated volume of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the refrigerated volumes measured for each tested unit of the basic model and determined in accordance with the test procedure in § 431.296.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to refrigerated bottled or canned beverage vending machine; and

(2) Pursuant to § 429.12(b)(13), a certification report must include the following additional public, equipment-specific information:

(i) When using appendix A of subpart Q of part 431of this chapter, the daily energy consumption in kilowatt hours per day (kWh/day), the refrigerated volume (V) in cubic feet (ft 3), whether testing was conducted with payment mechanism in place and operational, and, if applicable, the lowest application product temperature in degrees Fahrenheit ( °F), if applicable.

(ii) When using appendix B of subpart Q of part 431of this chapter, the daily energy consumption in kilowatt hours per day (kWh/day), the refrigerated volume (V) in cubic feet (ft 3), whether testing was conducted with payment mechanism in place and operational, whether testing was conducted using an accessory low power mode, whether rating was based on the presence of a refrigeration low power mode, and, if applicable, the lowest application product temperature in degrees Fahrenheit ( °F).

[76 FR 12451, Mar. 7, 2011; 76 FR 24779, May 2, 2011, as amended at 76 FR 38292, June 30, 2011; 80 FR 45792, July 31, 2015; 81 FR 1112, Jan. 8, 2016]

§ 429.53 Walk-in coolers and walk-in freezers.

(a) Determination of represented value. (1) The requirements of § 429.11 apply to walk-in coolers and walk-in freezers; and

(2) For each basic model of walk-in cooler and walk-in freezer refrigeration system, the annual walk-in energy factor (AWEF) must be determined either by testing, in accordance with § 431.304 of this chapter and the provisions of this section, or by application of an AEDM that meets the requirements of § 429.70 and the provisions of this section.

(i) Applicable test procedure. If AWEF or AWEF2 is determined by testing, test according to the applicable provisions of § 431.304(b) of this chapter with the following equipment-specific provisions.

(A) Dedicated condensing units. Outdoor dedicated condensing refrigeration systems that are also designated for use in indoor applications must be tested and rated as both an outdoor dedicated condensing refrigeration system and an indoor dedicated refrigeration system.

(B) Matched refrigeration systems. A matched refrigeration system is not required to be rated if the constituent unit cooler(s) and dedicated condensing unit have been tested as specified in § 431.304(b)(4) of this chapter. However, if a manufacturer wishes to represent the efficiency of the matched refrigeration system as distinct from the efficiency of either constituent component, or if the manufacturer cannot rate one or both of the constituent components using the specified method, the manufacturer must test and rate the matched refrigeration system as specified in § 431.304(b)(4) of this chapter.

(C) Detachable single-packaged dedicated systems. Detachable single-packaged dedicated systems must be tested and rated as a single-packaged dedicated systems using the test procedure in § 431.304(b)(4) of this chapter.

(D) Attached split systems. Attached split systems must be tested and rated as dedicated condensing units and unit coolers using the test procedure in § 431.304(b)(4) of this chapter.

(ii) Units to be tested. (A) If the represented value for a given refrigeration system basic model is determined through testing, the general requirements of § 429.11 apply; and

(B) For each basic model, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of AWEF or other measure of energy efficiency of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(1) The mean of the sample, where:

And x is the sample mean; n is the number of samples; and xi is the i th sample, or,

(2) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom (from appendix A to subpart B).

(C) The represented value of net capacity shall be the average of the capacities measured for the sample selected.

(iii) Alternative efficiency determination methods. In lieu of testing, pursuant to the requirements of § 429.70 and the provisions of this section, a represented value of AWEF for a basic model of a walk-in cooler or walk-in freezer refrigeration system may be determined through the application of an AEDM, where:

(A) Any represented value of AWEF or other measure of energy efficiency of a basic model for which consumers would favor higher values shall be less than or equal to the output of the AEDM and greater than or equal to the Federal standard for that basic model.

(B) The represented value of net capacity must be the net capacity simulated by the AEDM.

(3) For each basic model of walk-in cooler and walk-in freezer display and non-display door, the daily energy consumption must be determined by testing, in accordance with § 431.304 of this chapter and the provisions of this section, or by application of an AEDM that meets the requirements of § 429.70 and the provisions of this section.

(i) Applicable test procedure. Prior to October 31, 2023 use the test procedure for walk-ins in 10 CFR part 431, subpart R, appendix A, revised as of January 1, 2022, to determine daily energy consumption. Beginning October 31, 2023, use the test procedure in part 431, subpart R, appendix A of this chapter to determine daily energy consumption.

(ii) Units to be tested. For each basic model, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of daily energy consumption of a basic model or other measure of energy use for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

Equation 3 to Paragraph (a)(3)(ii)(A)

And x is the sample mean, n is the number of samples, and x i is the ith sample; or,

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:

Equation 4 to Paragraph (a)(3)(ii)(B)

And x is the sample mean, s is the sample standard deviation; n is the number of samples, and t−0.95 is the statistic for a 95 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A to this subpart).

(4) For each basic model of walk-in cooler and walk-in freezer panel and non-display door, the R-value must be determined by testing, in accordance with § 431.304 of this chapter and the provisions of this section.

(i) Applicable test procedure. Prior to October 31, 2023, use the test procedure for walk-ins in 10 CFR part 431, subpart R, appendix B, revised as of January 1, 2022, to determine R-value. Beginning October 31, 2023, use the test procedure in appendix B to subpart R of part 431 of this chapter to determine R-value.

(ii) Units to be tested. For each basic model, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of R-value or other measure of efficiency of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

Equation 5 to Paragraph (a)(4)(ii)(A)

And x is the sample mean, n is the number of samples, and x i is the ith sample; or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:

Equation 6 to Paragraph (a)(4)(ii)(B)

And x is the sample mean, s is the sample standard deviation; n is the number of samples, and t−0.95 is the statistic for a 95 percent one-tailed confidence interval with n-1 degree of freedom (from appendix A to this subpart).

(b) Certification reports. (1) The requirements of § 429.12 apply to manufacturers of walk-in cooler and walk-in freezer panels, doors, and refrigeration systems, and;

(2) Pursuant to § 429.12(b)(13), a certification report must include the following public product-specific information:

(i) For doors: The door type, R-value of the door insulation, and a declaration that the manufacturer has incorporated the applicable design requirements. In addition, for those walk-in coolers and walk-in freezers with transparent reach-in doors and windows, the glass type of the doors and windows (e.g., double-pane with heat reflective treatment, triple-pane glass with gas fill), and the power draw of the anti-sweat heater in watts per square foot of door opening must also be included.

(ii) For walk-in cooler and walk-in freezer panels: The R-value of the insulation.

(iii) For walk-in cooler and walk-in freezer refrigeration systems: The installed motor's functional purpose (i.e., evaporator fan motor or condenser fan motor), its rated horsepower, and a declaration that the manufacturer has incorporated the applicable walk-in-specific design requirements into the motor;

(3) Pursuant to § 429.12(b)(13), starting on June 5, 2017, a certification report must include the following public product-specific information in addition to the information listed in paragraph (b)(2) of this section:

(i) For walk-in cooler and walk-in freezer doors: The door energy consumption and rated surface area in square feet.

(ii) For refrigeration systems that are medium-temperature dedicated condensing units, medium-temperature single-package dedicated systems, or medium-temperature matched systems: The refrigeration system AWEF, net capacity, the configuration tested for certification (e.g., condensing unit only, unit cooler only, single-package dedicated system, or matched-pair), and if an indoor dedicated condensing unit is also certified as an outdoor dedicated condensing unit and, if so, the basic model number for the outdoor dedicated condensing unit.

(4) Pursuant to § 429.12(b)(13), starting on June 5, 2017, a certification report must include the following product-specific information in addition to the information listed in paragraphs (b)(2) and (3) of this section:

(i) For walk-in cooler and walk-in freezer doors: the rated power of each light, heater wire, and/or other electricity-consuming device associated with each basic model of display and non-display door; and whether such device(s) has a timer, control system, or other demand-based control reducing the device's power consumption.

(5) When certifying compliance to the AWEF refrigeration standards for WICF refrigeration systems except those specified in (b)(3)(ii) of this section, a certification report must include the following public product-specific information in addition to the information listed in paragraph (b)(2) of this section: For refrigeration systems that are low-temperature dedicated condensing units, low-temperature matched systems, low-temperature single-package dedicated systems, or medium and low-temperature unit coolers: The refrigeration system AWEF, net capacity, the configuration tested for certification (e.g., condensing unit only, unit cooler only, single-package dedicated system, or matched-pair), and if an indoor dedicated condensing unit is also certified as an outdoor dedicated condensing unit and, if so, the basic model number for the outdoor dedicated condensing unit.

[81 FR 95799, Dec. 28, 2016, as amended at 88 FR 28835, May 4, 2023; 89 FR 82067, Oct. 9, 2024; 90 FR 43382, Sept. 9, 2025]

§ 429.54 Metal halide lamp ballasts and fixtures.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to metal halide lamp ballasts; and

(2) For each basic model of metal halide lamp ballast selected for testing, a sample of sufficient size, not less than four, shall be selected at random and tested to ensure that:

(i) Any represented value of estimated energy efficiency calculated as the measured output power to the lamp divided by the measured input power to the ballast (Pout/Pin), of a basic model is less than or equal to the lower of:

(A) The mean of the sample, where:

Or,

(B) The lower 99-percent confidence limit (LCL) of the true mean divided by 0.99.

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.99 is the t statistic for a 99% two-tailed confidence interval with n-1 degrees of freedom (from appendix A).

(b) Certification reports. (1) The requirements of § 429.12 are applicable to metal halide lamp ballasts; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The minimum ballast efficiency in percent (%), the lamp wattage in watts (W), and the type of ballast (e.g., pulse-start, magnetic probe-start, and non-pulse start electronic).

[76 FR 12451, Mar. 7, 2011; 76 FR 24780, May 2, 2011; 76 FR 46202, Aug. 2, 2011]

§ 429.55 Incandescent reflector lamps.

Note 1 to § 429.55:

Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.27 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.

(a) Determination of Represented Value. Each manufacturer must determine represented values, which include the certified ratings, for each basic model, in accordance with the following sampling provisions.

(1) Units to be tested.

(i) When testing, use a sample comprised of production units. The same sample of units must be tested and used as the basis for representations for initial lumen output, rated wattage, lamp efficacy, color rendering index (CRI), correlated color temperature (CCT), and lifetime.

(ii) For each basic model, randomly select and test a sample of sufficient size, but not less than 10 units, to ensure that represented values of average lamp efficacy, CRI and initial lumen output are less than or equal to the lower of:

(A) The arithmetic mean of the sample; or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by .97, where:

(2) Any represented values of measures of energy efficiency or energy consumption for all individual models represented by a given basic model must be the same.

(3) Represented values of CCT and rated wattage must be equal to the arithmetic mean of the sample.

(4) Represented values of lifetime must be equal to or less than the median time to failure of the sample (calculated as the arithmetic mean of the time to failure of the two middle sample units (or the value of the middle sample unit if there are an odd number of units) when the measured values are sorted in value order).

(5) Calculate represented values of life (in years) by dividing the represented lifetime of these lamps as determined in paragraph (a)(4) of this section by the estimated daily operating hours as specified in 16 CFR 305.23(b)(3)(iii) multiplied by 365.

(6) Represented values of the estimated annual energy cost, expressed in dollars per year, must be the product of the rated wattage in kilowatts, an electricity cost rate as specified in 16 CFR 305.23(b)(1)(ii), and an estimated average daily use as specified in 16 CFR 305.23(b)(1)(ii) multiplied by 365.

(b) Certification reports. (1) The requirements of § 429.12 apply to incandescent reflector lamps; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, average lamp efficacy in lumens per watt (lm/W), rated wattage in watts (W), rated voltage (V), diameter in inches, and CRI.

(c) Rounding Requirements. (1) Round rated wattage to the nearest tenth of a watt.

(2) Round initial lumen output to three significant digits.

(3) Round average lamp efficacy to the nearest tenth of a lumen per watt.

(4) Round CCT to the nearest 100 kelvin (K).

(5) Round CRI to the nearest whole number.

(6) Round lifetime to the nearest whole hour.

(7) Round life (in years) to the nearest tenth.

(8) Round annual energy cost to the nearest cent.

[87 FR 53638, Aug. 31, 2022]

§ 429.56 Integrated light-emitting diode lamps.

(a) Determination of Represented Value. Manufacturers must determine the represented value, which includes the certified rating, for each basic model of integrated light-emitting diode lamps by testing, in conjunction with the sampling provisions in this section.

(1) Units to be tested.

(i) The general requirements of § 429.11 (a) are applicable except that the sample must be comprised of production units; and

(ii) For each basic model of integrated light-emitting diode lamp, the minimum number of units tested must be no less than 10 and the same sample comprised of the same units must be used for testing all metrics. If more than 10 units are tested as part of the sample, the total number of units must be a multiple of two. For each basic model, a sample of sufficient size must be randomly selected and tested to ensure that:

(A) Represented values of initial lumen output, lamp efficacy, color rendering index (CRI), power factor, or other measure of energy consumption of a basic model for which consumers would favor higher values are less than or equal to the lower of:

(1) The mean of the sample, where:

and, x is the sample mean; n is the number of units; and xi is the measured value for the i th unit; Or,

(2) The lower 99 percent confidence limit (LCL) of the true mean divided by 0.96; or the lower 99 percent confidence limit (LCL) of the true mean divided by 0.98 for CRI and power factor, where:

and, x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.99 is the t statistic for a 99 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A to this subpart).

(B) Represented values of input power, standby mode power or other measure of energy consumption of a basic model for which consumers would favor lower values are greater than or equal to the higher of:

(1) The mean of the sample, where:

and, x is the sample mean; n is the number of units; and xi is the measured value for the i th unit;

Or,

(2) The upper 99 percent confidence limit (UCL) of the true mean divided by 1.02, where:

and, x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.99 is the t statistic for a 99 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A to this subpart);

(C) Represented values of correlated color temperature (CCT) of a basic model must be equal to the mean of the sample, where:

and, x is the sample mean; n is the number of units in the sample; and xi is the measured CCT for the i th unit.

(D) The represented value of lifetime of an integrated light-emitting diode lamp must be equal to or less than the median time to failure of the sample (calculated as the arithmetic mean of the time to failure of the two middle sample units when the numbers are sorted in value order) rounded to the nearest hour.

(2) The represented value of life (in years) of an integrated light-emitting diode lamp must be calculated by dividing the lifetime of an integrated light-emitting diode lamp by the estimated annual operating hours as specified in 16 CFR 305.15(b)(3)(iii).

(3) The represented value of estimated annual energy cost for an integrated light-emitting diode lamp, expressed in dollars per year, must be the product of the input power in kilowatts, an electricity cost rate as specified in 16 CFR 305.15(b)(1)(ii), and an estimated average annual use as specified in 16 CFR 305.15(b)(1)(ii).

(b) Certification reports. (1) The requirements of § 429.12 are applicable to integrated light-emitting diode lamps;

(2) Values reported in certification reports are represented values. Pursuant to § 429.12(b)(13), a certification report must include the following public product-specific information: The testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, the date of manufacture, initial lumen output in lumens (lm), input power in watts (W), lamp efficacy in lumens per watt (lm/W), CCT in kelvin (K), power factor, lifetime in hours (and whether value is estimated), and life in years (and whether value is estimated). For lamps with multiple modes of operation (such as variable CCT or CRI), the certification report must also list which mode was selected for testing and include detail such that another laboratory could operate the lamp in the same mode. Lifetime and life are estimated values until testing is complete. When reporting estimated values, the certification report must specifically describe the prediction method, which must be generally representative of the methods specified in appendix BB. Manufacturers are required to maintain records per § 429.71 of the development of all estimated values and any associated initial test data.

(c) Rounding requirements. (1) Round input power to the nearest tenth of a watt.

(2) Round lumen output to three significant digits.

(3) Round lamp efficacy to the nearest tenth of a lumen per watt.

(4) Round correlated color temperature to the nearest 100 Kelvin.

(5) Round color rendering index to the nearest whole number.

(6) Round power factor to the nearest hundredths place.

(7) Round lifetime to the nearest whole hour.

(8) Round standby mode power to the nearest tenth of a watt.

[81 FR 43425, July 1, 2016, as amended at 90 FR 6789, Jan. 21, 2025]

§ 429.57 General service lamps.

(a) Determination of represented value. Manufacturers must determine represented values, which includes certified ratings, for each basic model of general service lamp in accordance with following sampling provisions.

(1) The requirements of § 429.11 are applicable to general service lamps, and

(2) For general service incandescent lamps, use § 429.66(a);

(3) For compact fluorescent lamps, use § 429.35(a);

(4) For integrated LED lamps, use § 429.56(a);

(5) For other incandescent lamps, use § 429.66(a);

(6) For other fluorescent lamps, use § 429.35(a); and

(7) For OLED lamps and non-integrated LED lamps, use § 429.56(a).

(b) Certification reports. (1) The requirements of § 429.12 are applicable to general service lamps;

(2) Values reported in certification reports are represented values;

(3) For general service incandescent lamps, use § 429.66(b);

(4) For compact fluorescent lamps, use § 429.35(b);

(5) For integrated LED lamps, use § 429.56(b); and

(6) For other incandescent lamps, for other fluorescent lamps, for OLED lamps and non-integrated LED lamps, pursuant to § 429.12(b)(13), a certification report must include the following public product-specific information: The testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, initial lumen output, input power, lamp efficacy, and power factor. For non-integrated LED lamps, the certification report must also include the input voltage and current used for testing.

(c) Rounding requirements. (1) Round input power to the nearest tenth of a watt.

(2) Round initial lumen output to three significant digits.

(3) Round lamp efficacy to the nearest tenth of a lumen per watt.

(4) Round power factor to the nearest hundredths place.

(5) Round standby mode power to the nearest tenth of a watt.

[81 FR 72503, Oct. 20, 2016, as amended at 90 FR 6789, Jan. 21, 2025]

§ 429.58 Furnace fans.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to furnace fans; and

(2) For each basic model of furnace fan within the scope of appendix AA of subpart B of part 430, a sample of sufficient size shall be randomly selected and tested to ensure that any represented value of fan energy rating (FER), rounded to the nearest integer, shall be greater than or equal to the higher of:

(i) The mean of the sample, where:

And, x is the sample mean; n is the number of samples; and xi is the measured value for the i th sample; Or,

(ii) The upper 90 percent confidence limit (UCL) of the true mean divided by 1.05, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.90 is the t statistic for a 90% one-tailed confidence interval with n-1 degrees of freedom (from Appendix A).

(b) Certification reports. (1) The requirements of § 429.12 are applicable to residential furnace fans; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The fan energy rating (FER) in watts per thousand cubic feet per minute (W/1000 cfm); the calculated maximum airflow at the reference system external static pressure (ESP) in cubic feet per minute (cfm); the control system configuration for achieving the heating and constant-circulation airflow-control settings required for determining FER as specified in the furnace fan test procedure (10 CFR part 430, subpart B, appendix AA); the measured steady-state gas, oil, or electric heat input rate (QIN) in the heating setting required for determining FER; and for modular blowers, the manufacturer and model number of the electric heat resistance kit with which it is equipped for certification testing.

[79 FR 520, Jan. 3, 2014, as amended at 79 FR 38208, July 3, 2014]

§ 429.59 Pumps.

Note 1 to § 429.59:

Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.59 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.

(a) Determination of represented value. Manufacturers must determine the represented value, which includes the certified rating, for each basic model of general purpose pump either by testing (which includes the calculation-based methods in the test procedure), in conjunction with the following sampling provisions, or by application of an AEDM that meets the requirements of § 429.70 and the provisions of this section. Manufacturers must determine the represented value, which includes the certified rating, for each basic model of dedicated-purpose pool pump by testing, in conjunction with the following sampling provisions. Manufacturers must update represented values to account for any change in the applicable motor standards in subpart B of part 431 of this chapter and certify amended values as of the next annual certification.

(1) Units to be tested. The requirements of § 429.11 are applicable to pumps; and for each basic model, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any representation of the constant load pump energy index (PEICL), variable load pump energy index (PEIVL), circulator energy index (CEI), or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample,

where: and x is the sample mean, n is the number of samples, and xi is the maximum of the ith sample;

Or,

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05,

where: and x is the sample mean, s is the sample standard deviation, n is the number of samples, and t0.95 is the t statistic for a 95 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A of subpart B of part 429).

(ii) Any representation of weighted energy factor of a basic model must be less than or equal to the lower of:

(A) The mean of the sample, where:

And x is the sample mean; n is the number of samples; and xi is the maximum of the ith sample; or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A of this subpart).

(2) Other representations—(i) Rated hydraulic horsepower. The representative value of rated hydraulic horsepower of a basic model of dedicated-purpose pool pump or circulator pump must be the mean of the rated hydraulic horsepower for each tested unit.

(ii) Dedicated-purpose pool pump motor total horsepower. The representative value of dedicated-purpose pool pump motor total horsepower of a basic model of dedicated-purpose pool pump must be the mean of the dedicated-purpose pool pump motor total horsepower for each tested unit.

(iii) True power factor (PFi). The representative value of true power factor at each load point i of a basic model of dedicated-purpose pool pump must be the mean of the true power factors at that load point for each tested unit of dedicated-purpose pool pump.

(iv) General pumps. The representative values for pump total head in feet at BEP and nominal speed, volume per unit time in gallons per minute at BEP and nominal speed, and calculated driver power input at each load point must be the arithmetic mean of the value determined for each tested unit of general pump.

(v) Input power. The representative value(s) of input power of a basic model of circulator pump at a load point(s) used in the calculation of CEI must be determined based on the mean of the input power at measured data point(s) for each tested unit.

(vi) Flow at BEP and maximum speed. The representative value of flow at BEP and maximum speed of a basic model of circulator pump must be determined based on the mean of the flow at BEP and maximum speed for each tested unit.

(vii) Head at BEP and maximum speed. The representative value of head at BEP and maximum speed of a basic model of circulator pump must be determined based on the mean of the head at BEP and maximum speed for each tested unit.

(viii) Other reported values. The representative value of any other reported value of a basic model of circulator pump must be determined based on the mean of that value for each tested unit.

(3) Alternative efficiency determination methods. In lieu of testing, a represented value of efficiency or consumption for a basic model of pump must be determined through the application of an AEDM pursuant to the requirements of § 429.70 and the provisions of this section, where:

(i) Any represented value of energy consumption or other measure of energy use of a basic model for which consumers would favor lower values shall be greater than or equal to the output of the AEDM and less than or equal to the Federal standard for that basic model; and

(ii) Any represented value of energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the output of the AEDM and greater than or equal to the Federal standard for that basic model.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to pumps; and

(2) Pursuant to § 429.12(b)(13), a certification report must include the following public product-specific information:

(i) For a pump subject to the test methods prescribed in section III of appendix A to subpart Y of part 431 of this chapter: PEICL; pump total head in feet (ft.) at BEP and nominal speed; volume per unit time (flow rate) in gallons per minute (gpm) at BEP and nominal speed; the nominal speed of rotation in revolutions per minute (rpm); calculated driver power input at each load point i (Pini), corrected to nominal speed, in horsepower (hp); full impeller diameter in inches (in.); and for RSV and ST pumps, the number of stages tested.

(ii) For a pump subject to the test methods prescribed in section IV or V of appendix A to subpart Y of part 431 of this chapter: PEICL; pump total head in feet (ft.) at BEP and nominal speed; volume per unit time (flow rate) in gallons per minute (gpm) at BEP and nominal speed; the nominal speed of rotation in revolutions per minute (rpm); driver power input at each load point i (Pini), corrected to nominal speed, in horsepower (hp); full impeller diameter in inches (in.); whether the PEICL is calculated or tested; and for RSV and ST pumps, number of stages tested.

(iii) For a pump subject to the test methods prescribed in section VI or VII of appendix A to subpart Y of part 431 of this chapter: PEIVL; pump total head in feet (ft.) at BEP and nominal speed; volume per unit time (flow rate) in gallons per minute (gpm) at BEP and nominal speed; the nominal speed of rotation in revolutions per minute (rpm); driver power input (measured as the input power to the driver and controls) at each load point i (Pini), corrected to nominal speed, in horsepower (hp); full impeller diameter in inches (in.); whether the PEIVL is calculated or tested; and for RSV and ST pumps, the number of stages tested.

(iv) For a dedicated-purpose pool pump (other than an integral cartridge-filter or sand-filter pool pump): weighted energy factor (WEF) in kilogallons per kilowatt-hour (kgal/kWh); rated hydraulic horsepower in horsepower (hp); the speed configuration for which the pump is being rated (i.e., single-speed, two-speed, multi-speed, or variable-speed); true power factor at all applicable test procedure load points i (dimensionless), as specified in Table 1 of appendix B or C to subpart Y of part 431 of this chapter, as applicable; dedicated-purpose pool pump nominal motor horsepower in horsepower (hp); dedicated-purpose pool pump motor total horsepower in horsepower (hp); dedicated-purpose pool pump service factor (dimensionless); for self-priming pool filter pumps and non-self-priming pool filter pumps: the maximum head (in feet) which is based on the mean of the units in the tested sample; a statement regarding whether freeze protection is shipped enabled or disabled; for dedicated-purpose pool pumps (DPPPs) distributed in commerce with freeze protection controls enabled: the default dry-bulb air temperature setting (in °F), default run time setting (in minutes), and default motor speed (in rpm); for self-priming pool filter pumps a statement regarding whether the pump is certified with NSF/ANSI 50-2015 (incorporated by reference, see § 429.4) as self-priming; and, for self-priming pool filter pumps that are not certified with NSF/ANSI 50-2015 as self-priming: the vertical lift (in feet) and true priming time (in minutes) for the DPPP model.

(v) For integral cartridge-filter and sand-filter pool pumps, the maximum run-time (in hours) of the pool pump control with which the integral cartridge-filter or sand-filter pump is distributed in commerce.

(3) Pursuant to § 429.12(b)(13), a certification report may include the following public product-specific information:

(i) For a pump subject to the test methods prescribed in section III of appendix A to subpart Y of part 431 of this chapter: Pump efficiency at BEP in percent (%) and PERCL.

(ii) For a pump subject to the test methods prescribed in section IV or V of appendix A to subpart Y of part 431 of this chapter: Pump efficiency at BEP in percent (%) and PERCL.

(iii) For a pump subject to the test methods prescribed in section VI or VII of appendix A to subpart Y of part 431 of this chapter: Pump efficiency at BEP in percent (%) and PERVL.

(iv) For a dedicated-purpose pool pump (other than an integral cartridge-filter or sand-filter pool pump): Calculated driver power input and flow rate at each load point i (Pi and Qi), in horsepower (hp) and gallons per minute (gpm), respectively.

(4) Pursuant to § 429.12(b)(13), a certification report will include the following product-specific information:

(i) For a pump subject to the test methods prescribed in section III of appendix A to subpart Y of part 431 of this chapter: The pump configuration (i.e., bare pump); and for ST pumps, the bowl diameter in inches (in.).

(ii) For a pump subject to the test methods prescribed in section IV or V of appendix A to subpart Y of part 431 of this chapter: The pump configuration (i.e., pump sold with an electric motor); for pumps sold with electric motors regulated by DOE's energy conservation standards for electric motors at § 431.25, the nominal motor efficiency in percent (%) and the motor horsepower (hp) for the motor with which the pump is being rated; and for ST pumps, the bowl diameter in inches (in.).

(iii) For a pump subject to the test methods prescribed in section VI or VII of appendix A to subpart Y of part 431 of this chapter: The pump configuration (i.e., pump sold with a motor and continuous or non-continuous controls); for pumps sold with electric motors regulated by DOE's energy conservation standards for electric motors at § 431.25, the nominal motor efficiency in percent (%) and the motor horsepower (hp) for the motor with which the pump is being rated; and for ST pumps, the bowl diameter in inches (in.).

(c) Individual model numbers. (1) For a pump subject to the test methods prescribed in appendix A to subpart Y of part 431 of this chapter, each individual model number required to be reported pursuant to § 429.12(b)(6) must consist of the following:

Equipment configuration (as distributed in commerce) | Basic model number | Individual model number(s)

1 | 2 | 3

Bare pump | Number unique to the basic model | Bare pump | N/A | N/A.

Bare pump with driver | Number unique to the basic model | Bare pump | Driver | N/A.

Bare pump with driver and controls | Number unique to the basic model | Bare pump | Driver | Controls.

(2) Or must otherwise provide sufficient information to identify the specific driver model and/or controls model(s) with which a bare pump is distributed.

[81 FR 4144, Jan. 25, 2016, as amended at 81 FR 4430, Jan. 26, 2016; 82 FR 36918, Aug. 7, 2017; 87 FR 43979, July 22, 2022; 87 FR 57297, Sept. 19, 2022; 88 FR 17973, Mar. 24, 2023; 88 FR 24471, Apr. 21, 2023; 89 FR 82067, Oct. 9, 2024; 90 FR 43382, Sept. 9, 2025]

§ 429.60 Commercial packaged boilers.

(a) Determination of represented value. Manufacturers must determine the represented value, which includes the certified rating, for each basic model of commercial packaged boilers either by testing in accordance with § 431.86 of this chapter, in conjunction with the applicable sampling provisions, or by applying an AEDM.

(1) Units to be tested. (i) If the represented value is determined through testing, the general requirements of § 429.11 are applicable, except that, if the represented value is determined through testing pursuant to § 431.86(c) of this chapter, the number of units selected for testing may be one; and

(ii) For each basic model selected for testing, a sample of sufficient size shall be randomly selected and tested to ensure that—

(A) Any represented value of energy consumption or other measure of energy use of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(1) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the i th sample; Or,

(2) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n−1 degrees of freedom (from Appendix A to subpart B of part 429). And,

(B) Any represented value of energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(1) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the i th sample; Or,

(2) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n−1 degrees of freedom (from Appendix A to subpart B of part 429).

(2) Alternative efficiency determination methods. In lieu of testing, a represented value of efficiency or consumption for a basic model of commercial packaged boiler must be determined through the application of an AEDM pursuant to the requirements of § 429.70 and the provisions of this section, where:

(i) Any represented value of energy consumption or other measure of energy use of a basic model for which consumers would favor lower values shall be greater than or equal to the output of the AEDM and less than or equal to the Federal standard for that basic model; and

(ii) Any represented value of energy efficiency or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the output of the AEDM and greater than or equal to the Federal standard for that basic model.

(3) The rated input for a basic model reported in accordance with paragraph (b)(2) of this section must be the maximum rated input listed on the nameplate and in manufacturer literature for the commercial packaged boiler basic model. In the case where the nameplate and the manufacturer literature are not identical, DOE will use the nameplate on the unit for determining the rated input.

(4) For a model of commercial packaged boiler capable of supplying either steam or hot water, representative values for steam mode must be based on efficiency in steam mode and representative values for hot water mode must be based on either the efficiency in hot water mode or steam mode in accordance with the test procedure in § 431.86 of this chapter and the provisions of this section.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to commercial packaged boilers; and

(2) Pursuant to § 429.12(b)(13), a certification report must include the following public, equipment-specific information:

(i) If oil-fired, the manufacturer (including brand, if applicable) and model number of the burner;

(ii) The rated input in British thermal units per hour (Btu/h);

(iii) The combustion efficiency in percent (%) to the nearest tenth of one percent or thermal efficiency in percent (%) to the nearest one tenth of one percent, as specified in § 431.87 of this chapter; and

(iv) For a basic model of commercial packaged boiler that cannot be tested using the standard inlet temperatures required in appendix A to subpart E of part 431, the average inlet water temperature measured at Point B in Figure C9 of ANSI/AHRI Standard 1500-2015 (incorporated by reference, see § 429.4) at which the model was tested.

(3) Pursuant to § 429.12(b)(13), a certification report must include the following additional equipment-specific information:

(i) Whether the basic model is engineered-to-order; and

(ii) For any basic model rated with an AEDM, whether the manufacturer elects the witness test option for verification testing. (See § 429.70(c)(5)(iii) for options). However, the manufacturer may not select more than 10% of AEDM-rated basic models to be eligible for witness testing.

(iii) For basic models of commercial packaged boilers that have a rated input greater than 5,000,000 Btu/h, a declaration about whether the certified efficiency rating is based on testing conducted pursuant to § 431.86(c) of this chapter.

(4) Pursuant to § 429.12(b)(13), a certification report may include supplemental testing instructions in PDF format. If necessary to run a valid test, the equipment-specific, supplemental information must include any additional testing and testing set up instructions (e.g., specific operational or control codes or settings), which would be necessary to operate the basic model under the required conditions specified by the relevant test procedure. A manufacturer may also include with a certification report other supplementary items in PDF format (e.g., manuals) for DOE consideration in performing testing under subpart C of this part.

(5) Any field tested pursuant to § 431.86(c) of this chapter basic model of a commercial packaged boiler that has not been previously certified through testing or an AEDM must be certified within 15 days of commissioning.

(c) Alternative methods for determining efficiency or energy use for commercial packaged boilers can be found in § 429.70.

[79 FR 25504, May 5, 2014, as amended at 80 FR 151, Jan. 5, 2015; 81 FR 89303, Dec. 9, 2016]

§ 429.61 Consumer miscellaneous refrigeration products.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to miscellaneous refrigeration products; and

(2) For each basic model of miscellaneous refrigeration product, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of estimated annual operating cost, energy consumption, or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where:

And, x is the sample mean; n is the number of samples; and xi is the ith sample; or

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom (from appendix A of this subpart).

and

(ii) Any represented value of the energy factor or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

And, x is the sample mean; n is the number of samples; and xi is the ith sample; or

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom (from appendix A of this subpart).

(3) The value of total refrigerated volume of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the total refrigerated volumes measured for each tested unit of the basic model or the total refrigerated volume of the basic model as calculated in accordance with § 429.72(d). The value of adjusted total volume of a basic model reported in accordance with paragraph (b)(2) of this section shall be the mean of the adjusted total volumes measured for each tested unit of the basic model or the adjusted total volume of the basic model as calculated in accordance with § 429.72(d).

(b) Certification reports. (1) The requirements of § 429.12 are applicable to miscellaneous refrigeration products; and

(2) Pursuant to § 429.12(b)(13), a certification report must include the following public product-specific information: The annual energy use in kilowatt hours per year (kWh/yr); the total refrigerated volume in cubic feet (cu ft) and the total adjusted volume in cubic feet (cu ft).

(3) Pursuant to § 429.12(b)(13), a certification report coolers or combination cooler refrigeration products shall include the following additional product-specific information: Whether the basic model has variable defrost control (in which case, manufacturers must also report the values, if any, of CTL and CTM (See section 5.3 in appendix A to subpart B of part 430 of this chapter) used in the calculation of energy consumption), whether the basic model has variable anti-sweat heater control (in which case, manufacturers must also report the values of heater Watts at the ten humidity levels (5%, 15%, 25%, 35%, 45%, 55%, 65%, 75%, 85%, and 95%) used to calculate the variable anti-sweat heater “Correction Factor”), and whether testing has been conducted with modifications to the standard temperature sensor locations, as specified in section 5.1(g) of appendix A to subpart B of part 430 of this chapter.

(c) Rounding requirements for representative values, including certified and rated values. (1) The represented value of annual energy use must be rounded to the nearest kilowatt hour per year.

(2) The represented value of total refrigerated volume must be rounded to the nearest 0.1 cubic foot.

(3) The represented value of adjusted total volume must be rounded to the nearest 0.1 cubic foot.

(d) Product category determination. Each basic model of miscellaneous refrigeration product must be certified according to the appropriate product category as defined in § 430.2 of this chapter based on compartment volumes and compartment temperatures. If one or more compartments could be classified as both a fresh food compartment and a freezer compartment, the model must be certified to each applicable product category based on the operation of the compartment(s) as both fresh food and freezer compartments.

(1) Compartment volume used to determine product category shall be, for each compartment, the mean of the volumes of that specific compartment for the sample of tested units of the basic model, measured according to the provisions in section 4.1 of appendix A of subpart B of part 430 of this chapter, or, for each compartment, the volume of that specific compartment calculated for the basic model in accordance with § 429.72(d).

(2) For compartments other than cooler compartments, determination of the compartment temperature ranges shall be based on operation of the product under the conditions specified in appendix A to subpart B of part 430 of this chapter for miscellaneous refrigeration products. The determination of compartment status may require evaluation of a model at the extremes of the range of user-selectable temperature control settings. If the temperature ranges for the same compartment of multiple units of a sample are different, the maximum and minimum compartment temperatures for compartment status determination shall be based on the mean measurements for the units in the sample.

[81 FR 46790, July 18, 2016, as amended at 86 FR 56819, Oct. 12, 2021; 88 FR 7845, Feb. 7, 2023]

§ 429.62 Portable air conditioners.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to portable air conditioners; and

(2) For each basic model of portable air conditioner, a sample of sufficient size must be randomly selected and tested to ensure that—

(i) Any represented value of energy consumption or other measure of energy consumption of a basic model for which consumers would favor lower values is greater than or equal to the higher of:

(A) The mean of the sample:

Where: x is the sample mean; xi is the ith sample; and n is the number of units in the test sample.

Or,

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10:

Where: x is the sample mean; s is the sample standard deviation; n is the number of units in the test sample; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom.

And,

(ii) Any represented value of the combined energy efficiency ratio or other measure of energy consumption of a basic model for which consumers would favor higher values is less than or equal to the lower of:

(A) The mean of the sample:

Where: x is the sample mean; xi is the ith sample; and n is the number of units in the test sample.

Or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90:

Where: x is the sample mean; s is the sample standard deviation; n is the number of units in the test sample; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom.

And,

(3) When testing in accordance with appendix CC of subpart B of part 430 of this chapter, the represented value of cooling capacity for a single-speed portable AC shall be seasonally adjusted cooling capacity (“SACC”) and the represented value of cooling capacity for a variable-speed portable AC shall be full-load seasonally adjusted cooling capacity (“SACCFull”), as determined in appendix CC to subpart B of part 430 of this chapter. When testing in accordance with appendix CC1 to subpart B of part 430 of this chapter, the represented value of cooling capacity for both single-speed and variable-speed portable ACs shall be SACC, as determined in appendix CC1 to subpart B of part 430 of this chapter.

(4) Where SACC is used for representation, the represented value of SACC of a basic model must be the mean of the SACC for each tested unit of the basic model. Likewise, where SACCFull is used for representation, the represented value of SACCFull of a basic model must be the mean of the SACCFull for each tested unit of the basic model. When using appendix CC to subpart B of part 430 of this chapter, round the mean SACC or SACCFull value to the nearest 50, 100, 200, or 500 Btu/h, depending on the magnitude of the calculated SACC or SACCFull, as applicable, in accordance with Table 1 of ANSI/AHAM PAC-1-2015, (incorporated by reference, see § 429.4), “Multiples for reporting Dual Duct Cooling Capacity, Single Duct Cooling Capacity, Spot Cooling Capacity, Water Cooled Condenser Capacity and Power Input Ratings”. When using appendix CC1 to subpart B of part 430 of this chapter, round SACC to the nearest 50, 100, 200, or 500 Btu/h, depending on the magnitude of the calculated SACC, in accordance with Table 1 of AHAM PAC-1-2022, (incorporated by reference, see § 429.4), “Multiples for reporting Dual Duct Cooling Capacity, Single Duct Cooling Capacity, Spot Cooling Capacity, Water Cooled Condenser Capacity and Power Input Ratings”.

(5) The represented value of combined energy efficiency ratio or annualized energy efficiency ratio of a basic model must be rounded to the nearest 0.1 Btu/Wh.

(6) Single-duct and dual-duct portable air conditioners distributed in commerce by the manufacturer with multiple duct configuration options that meet DOE's definitions for single-duct portable AC and dual-duct portable AC, must be rated and certified under both applicable duct configurations.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to single-duct and dual-duct portable air conditioners; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The combined energy efficiency ratio (CEER in British thermal units per Watt-hour (Btu/Wh), the seasonally adjusted cooling capacity in British thermal units per hour (Btu/h), the duct configuration (single-duct, dual-duct, or ability to operate in both duct configurations), presence of heating function, and primary condensate removal feature (auto-evaporation, gravity drain, removable internal collection bucket, or condensate pump).

[81 FR 35264, June 1, 2016, as amended at 85 FR 1446, Jan. 10, 2020; 88 FR 31126, May 15, 2023; 89 FR 82068, Oct. 9, 2024; 90 FR 43382, Sept. 9, 2025]

§ 429.63 Compressors.

(a) Determination of represented value. Manufacturers must determine the represented value, which includes the certified rating, for each basic model of compressor either by testing in conjunction with the applicable sampling provisions or by applying an AEDM.

(1) Units to be tested. (i) If the represented value is determined through testing, the general requirements of § 429.11 apply; and

(ii) For each basic model selected for testing, a sample of sufficient size must be randomly selected and tested to ensure that—

(A) Measures of energy efficiency. Any represented value of the full- or part-load package isentropic efficiency or other measure of energy efficiency of a basic model for which customers would favor higher values is less than or equal to the lower of:

(1) The mean of the sample, where:

And x is the sample mean; n is the number of samples; and xi is the measured value for the i th sample; or,

(2) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95 percent one-tailed confidence interval with n−1 degrees of freedom (from appendix A of this subpart); and

(B) Package specific power. The representative value(s) of package specific power of a basic model must be the mean of the package specific power measurement(s) for each tested unit of the basic model.

(2) Alternative efficiency determination methods. In lieu of testing, any represented value of efficiency, consumption, or other non-energy metrics listed in paragraph (a)(3) of this section for a basic model may be determined through the application of an AEDM pursuant to the requirements of § 429.70 and the provisions of this section, where:

(i) Any represented values of package isentropic efficiency or other measure of energy consumption of a basic model for which customers would favor higher values must be less than or equal to the output of the AEDM; and

(ii) Any represented values of package specific power, pressure ratio at full-load operating pressure, full-load actual volume flow rate, or full-load operating pressure must be the output of the AEDM corresponding to the represented value of package isentropic efficiency determined in paragraph (a)(2)(i) of this section.

(3) Representations of non-energy metrics—(i) Full-load actual volume flow rate. The representative value of full-load actual volume flow rate of a basic model must be either—

(A) The mean of the full-load actual volume flow rate for the units in the sample; or

(B) As determined through the application of an AEDM pursuant to the requirements of § 429.70.

(ii) Full-load operating pressure. The representative value of full-load operating pressure of a basic model must be less than or equal to the maximum full-flow operating pressure and greater than or equal to the lesser of—

(A) 90 percent of the maximum full-flow operating pressure; or

(B) 10 psig less than the maximum full-flow operating pressure, where the maximum full-flow operating pressure must either be determined as the mean of the maximum full-flow operating pressure values for the units in the sample or through the application of an AEDM pursuant to the requirements of § 429.70.

(iii) Pressure ratio at full-load operating pressure. The representative value of pressure ratio at full-load operating pressure of a basic model must be either be determined as the mean of the pressure ratio at full-load operating pressure for the units in the sample or through the application of an AEDM pursuant to the requirements of § 429.70.

(b) Certification reports. (1) The requirements of § 429.12 are applicable to compressors; and

(2) Pursuant to § 429.12(b)(13), a certification report will include the following public product-specific information:

(i) Full-load package isentropic efficiency or part-load package isentropic efficiency, as applicable (dimensionless).

(ii) Full-load actual volume flow rate (in cubic feet per minute).

(iii) Compressor motor nominal horsepower (in horsepower).

(iv) Full-load operating pressure (in pounds per square inch, gauge).

(v) Maximum full-flow operating pressure (in pounds per square inch, gauge).

(vi) Pressure ratio at full-load operating pressure (dimensionless).

(vii) For any ancillary equipment that is installed for test, but is not part of the compressor package as distributed in commerce (per the requirements of 10 CFR part 431, subpart T, appendix A, section I(B)(4)), the following must be reported:

(A) A general description of the ancillary equipment, based on the list provided in the first column of Table 1 of 10 CFR part 431, subpart T, appendix A, section I(B)(4).

(B) The manufacturer of the ancillary equipment.

(C) The brand of the ancillary equipment (if different from the manufacturer).

(D) The model number of the ancillary equipment.

(E) The serial number of the ancillary equipment (if applicable).

(F) The following electrical characteristics, if applicable:

(1) Input Voltage.

(2) Number of Phases.

(3) Input Frequency.

(G) The following mechanical characteristics, if applicable:

(1) Size of any connections.

(2) Type of any connections.

(H) Installation instructions for the ancillary equipment, accompanied by photos that clearly illustrate the ancillary equipment, as installed on compressor package. Instructions and photo(s) to be provided in portable document format (i.e., a PDF file).

[82 FR 1099, Jan. 4, 2017, as amended at 85 FR 1591, Jan. 10, 2020]

§ 429.64 Electric motors.

(a) Applicability. When a party determines the energy efficiency of an electric motor in order to comply with an obligation imposed on it by or pursuant to Part C of Title III of EPCA, 42 U.S.C. 6311-6316, this section applies. This section does not apply to enforcement testing conducted pursuant to § 431.383 of this subchapter. This section applies to electric motors that are subject to requirements in subpart B of part 431 of this subchapter and does not apply to dedicated-purpose pool pump motors subject to requirements in subpart Z of part 431.

(1) Prior to the date described in paragraph (a)(2) of this section, manufacturers of electric motors subject to energy conservation standards in subpart B of part 431 must make representations of energy efficiency, including representations for certification of compliance, in accordance with paragraphs (b) and (c) of this section.

(2) On and after the compliance date for any new or amended standards for electric motors published after January 1, 2021, manufacturers of electric motors subject to energy conservation standards in subpart B of part 431 of this subchapter must make representations of energy efficiency, including representations for certification of compliance, in accordance with paragraphs (d) through (f) of this section.

(3) On or after April 17, 2023, manufacturers of electric motors subject to the test procedures in appendix B of subpart B of part 431 but are subject to the energy conservation standards in subpart B of part 431 of this subchapter, must, if they chose to voluntarily make representations of energy efficiency, follow the provisions in paragraph (e) of this section.

(b) Compliance certification—(1) General requirements. The represented value of nominal full-load efficiency of each basic model of electric motor must be determined either by testing in accordance with § 431.16 of this subchapter, or by application of an alternative efficiency determination method (AEDM) that meets the requirements of paragraph (b)(2) of this section.

(2) Alternative efficiency determination method. In lieu of testing, the represented value of nominal full-load efficiency for a basic model of electric motor must be determined through the application of an AEDM pursuant to the requirements of § 429.70(j) and the provisions of this paragraph (b) and paragraph (c) of this section, where:

(i) The average full-load efficiency of any basic model used to validate an AEDM must be calculated under paragraph (c) of this section.

(ii) The represented value is the nominal full-load efficiency of a basic model of electric motor and is to be used in marketing materials and all public representations, as the certified value of efficiency, and on the nameplate. (See § 431.31(a) of this subchapter.) Determine the nominal full-load efficiency by selecting a value from the “Nominal Full-Load Efficiency” table in appendix B to subpart B of this part that is no greater than the simulated full-load efficiency predicted by the AEDM for the basic model.

(3) Use of a certification program or accredited laboratory. (i) A manufacturer may have a certification program, that DOE has classified as nationally recognized under § 429.73, certify the nominal full-load efficiency of a basic model of electric motor, and issue a certificate of conformity for the motor.

(ii) For each basic model for which a certification program is not used as described in paragraph (b)(3)(i) of this section, any testing of the motor pursuant to paragraph (b)(1) or (2) of this section to determine its energy efficiency must be carried out in an accredited laboratory that meets the requirements of § 431.18 of this subchapter;

(c) Additional testing requirements applicable when a certification program is not used—(1) Selection of units for testing. For each basic model selected for testing, a sample of units shall be selected at random and tested. Components of similar design may be substituted without requiring additional testing if the represented measures of energy consumption continue to satisfy the applicable sampling provision.

(2) Sampling requirements. The sample shall be comprised of production units of the basic model, or units that are representative of such production units. The sample size shall be not fewer than five units, except that when fewer than five units of a basic model would be produced over a reasonable period of time (approximately 180 days), then each unit shall be tested. In a test of compliance with a represented average or nominal efficiency:

(i) The average full-load efficiency of the sample, which is defined by:

where xi is the measured full-load efficiency of unit i and n is the number of units tested, shall satisfy the condition:

where RE is the represented nominal full-load efficiency, and

(ii) The lowest full-load efficiency in the sample xmin, which is defined by:

xmin = min (xi)

shall satisfy the condition:

(d) Compliance certification. A manufacturer may not certify the compliance of an electric motor pursuant to § 429.12 unless:

(1) Testing of the electric motor basic model was conducted using an accredited laboratory that meets the requirements of paragraph (f) of this section;

(2) Testing was conducted using a laboratory other than an accredited laboratory that meets the requirements of paragraph (f) of this section, or the nominal full-load efficiency of the electric motor basic model was determined through the application of an AEDM pursuant to the requirements of § 429.70(j), and a third-party certification organization that is nationally recognized in the United States under § 429.73 has certified the nominal full-load efficiency of the electric motor basic model through issuance of a certificate of conformity for the basic model.

(e) Determination of represented value. A manufacturer must determine the represented value of nominal full-load efficiency (inclusive of the inverter for inverter-only electric motors) for each basic model of electric motor either by testing in conjunction with the applicable sampling provisions or by applying an AEDM as set forth in this section and in § 429.70(j).

(1) Testing—(i) Units to be tested. If the represented value for a given basic model is determined through testing, the requirements of § 429.11 apply except that, for electric motors, the minimum sample size is five units. If fewer units than the minimum sample size are produced, each unit produced must be tested and the test results must demonstrate that the basic model performs at or better than the applicable standard(s). If one or more units of the basic model are manufactured subsequently, compliance with the default sampling and representations provisions is required.

(ii) Average Full-load Efficiency: Determine the average full-load efficiency for the basic model x, for the units in the sample as follows:

Where xi is the measured full-load efficiency of unit i and n is the number of units tested.

(iii) Represented value. The represented value is the nominal full-load efficiency of a basic model of electric motor and is to be used in marketing materials and all public representations, as the certified value of efficiency, and on the nameplate. (See § 431.31(a) of this subchapter.) Determine the nominal full-load efficiency by selecting an efficiency from the “Nominal Full-load Efficiency” table in appendix B that is no greater than the average full-load efficiency of the basic model as calculated in § 429.64(e)(1)(ii).

(iv) Minimum full-load efficiency: To ensure a high level of quality control and consistency of performance within the basic model, the lowest full-load efficiency in the sample Xmin, must satisfy the condition:

where Std is the value of the applicable energy conservation standard. If the lowest measured full-load efficiency of a unit in the tested sample does not satisfy the condition in this section, then the basic model cannot be certified as compliant with the applicable standard.

(2) Alternative efficiency determination methods. In lieu of testing, the represented value of nominal full-load efficiency for a basic model of electric motor must be determined through the application of an AEDM pursuant to the requirements of § 429.70(j) and the provisions of this section, where:

(i) The average full-load efficiency of any basic model used to validate an AEDM must be calculated under paragraph (e)(1)(ii) of this section; and

(ii) The represented value is the nominal full-load efficiency of a basic model of electric motor and is to be used in marketing materials and all public representations, as the certified value of efficiency, and on the nameplate. (See § 431.31(a) of this subchapter) Determine the nominal full-load efficiency by selecting a value from the “Nominal Full-Load Efficiency” table in appendix B to subpart B of this part, that is no greater than the simulated full-load efficiency predicted by the AEDM for the basic model.

(f) Accredited laboratory. (1) Testing pursuant to paragraphs (b)(3)(ii) and (d)(1) of this section must be conducted in an accredited laboratory for which the accreditation body was:

(i) The National Institute of Standards and Technology/National Voluntary Laboratory Accreditation Program (NIST/NVLAP); or

(ii) A laboratory accreditation body having a mutual recognition arrangement with NIST/NVLAP; or

(iii) An organization classified by the Department, pursuant to § 429.74, as an accreditation body.

(2) NIST/NVLAP is under the auspices of the National Institute of Standards and Technology (NIST)/National Voluntary Laboratory Accreditation Program (NVLAP), which is part of the U.S. Department of Commerce. NIST/NVLAP accreditation is granted on the basis of conformance with criteria published in 15 CFR part 285. The National Voluntary Laboratory Accreditation Program, “Procedures and General Requirements,” NIST Handbook 150-10, April 2020 (referenced for guidance only, see § 429.3) present the technical requirements of NVLAP for the Efficiency of Electric Motors field of accreditation. This handbook supplements NIST Handbook 150, National Voluntary Laboratory Accreditation Program “Procedures and General Requirements,” which contains 15 CFR part 285 plus all general NIST/NVLAP procedures, criteria, and policies. Information regarding NIST/NVLAP and its Efficiency of Electric Motors Program (EEM) can be obtained from NIST/NVLAP, 100 Bureau Drive, Mail Stop 2140, Gaithersburg, MD 20899-2140, (301) 975-4016 (telephone), or (301) 926-2884 (fax).

[87 FR 63647, Oct. 19, 2022]

§ 429.65 Dedicated-purpose pool pump motors.

(a) Applicability. This section applies to dedicated purpose motors that are subject to requirements in subpart Z of part 431 of this subchapter. Starting on the compliance date for any standards for dedicated-purpose pool pump motors published after January 1, 2021, manufacturers of dedicated-purpose pool pump motors subject to such standards must make representations of energy efficiency, including representations for certification of compliance, in accordance with this section. Prior to the compliance date for any standards for dedicated-purpose pool pump motors published after January 1, 2021, and on or after April 17, 2023, manufacturers of dedicated-purpose pool pump motors subject to test procedures in subpart Z of part 431 of this subchapter choosing to make representations of energy efficiency must follow the provisions in paragraph (c) of this section.

(b) Compliance certification. A manufacturer may not certify the compliance of a dedicated-purpose pool pump motor pursuant to 10 CFR 429.12 unless:

(1) Testing of the dedicated-purpose pool pump motor basic model was conducted using an accredited laboratory that meets the requirements of paragraph (d) of this section;

(2) Testing was conducted using a laboratory other than an accredited laboratory that meets the requirements of paragraph (d) of this section, or the full-load efficiency of the dedicated-purpose pool pump motor basic model was determined through the application of an AEDM pursuant to the requirements of § 429.70(k), and a third-party certification organization that is nationally recognized in the United States under § 429.73 has certified the full-load efficiency of the dedicated-purpose pool pump motor basic model through issuance of a certificate of conformity for the basic model.

(c) Determination of represented value. A manufacturer must determine the represented value of full-load efficiency (inclusive of the drive, if the dedicated-purpose pool pump motor basic model is placed into commerce with a drive, or is unable to operate without the presence of a drive) for each basic model of dedicated-purpose pool pump motor either by testing in conjunction with the applicable sampling provisions or by applying an AEDM as set forth in this section and in § 429.70(k).

(1) Testing—(i) Units to be tested. If the represented value for a given basic model is determined through testing, the requirements of § 429.11 apply except that, for dedicated-purpose pool pump motors, the minimum sample size is five units. If fewer units than the minimum sample size are produced, each unit produced must be tested and the test results must demonstrate that the basic model performs at or better than the applicable standard(s). If one or more units of the basic model are manufactured subsequently, compliance with the default sampling and representations provisions is required.

(ii) Full-load efficiency. Any value of full-load efficiency must be lower than or equal to the average of the sample x, calculated as follows:

Where xi is the measured full-load efficiency of unit i and n is the number of units tested in the sample.

(iii) Represented value. The represented value is the full-load efficiency of a basic model of dedicated-purpose pool pump motor and is to be used in marketing materials and all public representations, as the certified value of efficiency, and on the nameplate. (See § 431.486 of this subchapter). Alternatively, a manufacturer may make representations using the nominal full-load efficiency of a basic model of dedicated-purpose pool pump motor provided that the manufacturer uses the nominal full-load efficiency consistently on all marketing materials, and as the value on the nameplate. Determine the nominal full-load efficiency by selecting an efficiency from the “Nominal Full-load Efficiency” table in appendix B to subpart B of this part, that is no greater than the full-load efficiency of the basic model as calculated in § 429.65(c)(1)(ii).

(iv) Minimum full-load efficiency: To ensure quality control and consistency of performance within the basic model, the lowest full-load efficiency in the sample Xmin, must satisfy the condition:

where Std is the value of any applicable energy conservation standard. If the lowest measured full-load efficiency of a motor in the tested sample does not satisfy the condition in this section, then the basic model cannot be certified as compliant with the applicable standard.

(v) Dedicated-purpose pool pump motor total horsepower. The represented value of the total horsepower of a basic model of dedicated-purpose pool pump motor must be the mean of the dedicated-purpose pool pump motor total horsepower for each tested unit in the sample.

(2) Alternative efficiency determination methods. In lieu of testing, the represented value of full-load efficiency for a basic model of dedicated-purpose pool pump motor must be determined through the application of an AEDM pursuant to the requirements of § 429.70(k) and the provisions of this section, where:

(i) The full-load efficiency of any basic model used to validate an AEDM must be calculated under paragraph (c)(1)(ii) of this section; and

(ii) The represented value is the full-load efficiency of a basic model of dedicated-purpose pool pump motor and is to be used in marketing materials and all public representations, as the certified value of efficiency, and on the nameplate. (See § 431.485 of this subchapter). Alternatively, a manufacturer may make representations using the nominal full-load efficiency of a basic model of dedicated-purpose pool pump motor provided that the manufacturer uses the nominal full-load efficiency consistently on all marketing materials, and as the value on the nameplate. Determine the nominal full-load efficiency by selecting an efficiency from the “Nominal Full-load Efficiency” table in appendix B to subpart B of this part, that is no greater than the full-load efficiency of the basic model as calculated in § 429.65(c)(1)(ii).

(d) Accredited laboratory. (1) Testing pursuant to paragraph (b) of this section must be conducted in an accredited laboratory for which the accreditation body was:

(i) The National Institute of Standards and Technology/National Voluntary Laboratory Accreditation Program (NIST/NVLAP); or

(ii) A laboratory accreditation body having a mutual recognition arrangement with NIST/NVLAP; or

(iii) An organization classified by the Department, pursuant to § 429.74, as an accreditation body.

(2) NIST/NVLAP is under the auspices of the National Institute of Standards and Technology (NIST)/National Voluntary Laboratory Accreditation Program (NVLAP), which is part of the U.S. Department of Commerce. NIST/NVLAP accreditation is granted on the basis of conformance with criteria published in 15 CFR part 285. The National Voluntary Laboratory Accreditation Program, “Procedures and General Requirements,” NIST Handbook 150-10, April 2020, (referenced for guidance only, see § 429.3) present the technical requirements of NVLAP for the Efficiency of Electric Motors field of accreditation. This handbook supplements NIST Handbook 150, National Voluntary Laboratory Accreditation Program “Procedures and General Requirements,” which contains 15 CFR part 285 plus all general NIST/NVLAP procedures, criteria, and policies. Information regarding NIST/NVLAP and its Efficiency of Electric Motors Program (EEM) can be obtained from NIST/NVLAP, 100 Bureau Drive, Mail Stop 2140, Gaithersburg, MD 20899-2140, (301) 975-4016 (telephone), or (301) 926-2884 (fax).

[87 FR 63648, Oct. 19, 2022, as amended at 89 FR 82068, Oct. 9, 2024; 90 FR 43382, Sept. 9, 2025]

§ 429.66 General service incandescent lamps.

Note 1 to § 429.66:

Prior to February 17, 2023, certification reports must be submitted as required either in this section or 10 CFR 429.27 as it appears in the 10 CFR parts 200 through 499 edition revised as of January 1, 2022. On or after February 17, 2023, certification reports must be submitted as required in this section.

(a) Determination of Represented Value. Each manufacturer must determine represented values, which include certified ratings, for each basic model by testing in accordance with the following sampling provisions.

(1) Units to be tested.

(i) When testing, use a sample comprised of production units. The same sample of units must be tested and used as the basis for representations for initial lumen output, rated wattage, color rendering index (CRI), correlated color temperature (CCT), and lifetime.

(ii) For each basic model, randomly select and test a sample of sufficient size, but not less than 10 units, to ensure that—

(A) Represented values of initial lumen output and CRI are less than or equal to the lower of:

(1) The arithmetic mean of the sample: or,

(2) The lower 95 percent confidence limit (LCL) of the true mean divided by .97, where:

(B) Represented values of rated wattage are greater than or equal to the higher of:

(1) The arithmetic mean of the sample: or,

(2) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.03, where:

and x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95% one-tailed confidence interval with n-1 degrees of freedom (from appendix A to this subpart).

(2) Any represented values of measures of energy efficiency or energy consumption for all individual models represented by a given basic model must be the same.

(3) Represented values of CCT must be equal to the arithmetic mean of the sample.

(4) Represented values of lifetime must be equal to or less than the median time to failure of the sample (calculated as the arithmetic mean of the time to failure of the two middle sample units (or the value of the middle sample unit if there are an odd number of units) when the measured values are sorted in value order).

(5) Calculate represented values of life (in years) by dividing the represented lifetime of these lamps as determined in paragraph (a)(4) of this section by the estimated daily operating hours as specified in 16 CFR 305.23(b)(3)(iii) multiplied by 365.

(6) Represented values of the estimated annual energy cost, expressed in dollars per year, must be the product of the rated wattage in kilowatts, an electricity cost rate as specified in 16 CFR 305.23(b)(1)(ii), and an estimated average daily use as specified in 16 CFR 305.23(b)(1)(ii) multiplied by 365.

(b) Certification reports. (1) The requirements of § 429.12 apply to general service incandescent lamps; and

(2) Pursuant to § 429.12(b)(13), a certification report shall include the following public product-specific information: The testing laboratory's ILAC accreditation body's identification number or other approved identification assigned by the ILAC accreditation body, rated wattage in watts (W), the lifetime in hours, CRI, and initial lumen output in lumens (lm).

(c) Rounding Requirements. (1) Round rated wattage to the nearest tenth of a watt.

(2) Round initial lumen output to three significant digits.

(3) Round CCT to the nearest 100 kelvin (K).

(4) Round CRI to the nearest whole number.

(5) Round lifetime to the nearest whole hour.

(6) Round life (in years) to the nearest tenth.

(7) Round annual energy cost to the nearest cent.

[87 FR 53639, Aug. 31, 2022]

§ 429.67 Air-cooled, three-phase, small commercial package air conditioning and heating equipment with a cooling capacity of less than 65,000 British thermal units per hour and air-cooled, three-phase, variable refrigerant flow multi-split air conditioners and heat pumps with a cooling capacity of less than 65,000 British thermal units per hour.

(a) Applicability. (1) For air-cooled, three-phase, small commercial package air conditioning and heating equipment with a cooling capacity of less than 65,000 Btu/h and air-cooled, three-phase, variable refrigerant flow multi-split air conditioners and heat pumps with a cooling capacity of less than 65,000 Btu/h subject to standards in terms of seasonal energy efficiency ratio (SEER) and heating seasonal performance factor (HSPF), representations with respect to the energy use or efficiency, including compliance certifications, are subject to the requirements in § 429.43 of this title as it appeared in the 10 CFR parts 200-499 edition revised as of January 1, 2021.

(2) For air-cooled, three-phase, small commercial package air conditioning and heating equipment with a cooling capacity of less than 65,000 Btu/h and air-cooled, three-phase, variable refrigerant flow multi-split air conditioners and heat pumps with a cooling capacity of less than 65,000 Btu/h subject to standards in terms of seasonal energy efficiency ratio 2 (SEER2) and heating seasonal performance factor 2 (HSPF2) metrics, representations with respect to the energy use or efficiency, including compliance certifications, are subject to the requirements in this section. If manufacturers choose to certify compliance with any standards in terms of SEER2 and HSPF2 prior to the applicable compliance date for those standards, the requirements of this section must be followed.

(b) Determination of Represented Value—(1) Required represented values. Determine the represented values (including SEER2, HSPF2, cooling capacity, and heating capacity, as applicable) for the individual models/combinations (or “tested combinations”) specified in table 1 to this paragraph (b)(1).

Table 1 to Paragraph (b)(1)

Category | Equipment subcategory | Required represented values

Single-Package unit | Single-Package AC (including Space-Constrained) | Every individual model distributed in commerce.

Single-Package HP (including Space-Constrained)

Outdoor Unit and Indoor Unit (Distributed in Commerce by OUM (Outdoor Unit Manufacturer)) | Single-Split-System AC with Single-Stage or Two-Stage Compressor (including Space-Constrained and Small-Duct, High Velocity Systems (SDHV)) | Every individual combination distributed in commerce. Each model of outdoor unit must include a represented value for at least one coil-only individual combination that is distributed in commerce and which is representative of the least efficient combination distributed in commerce with that particular model of outdoor unit. For that particular model of outdoor unit, additional represented values for coil-only and blower-coil individual combinations are allowed, if distributed in commerce.

Single-Split-System AC with Other Than Single-Stage or Two-Stage Compressor (including Space-Constrained and SDHV) | Every individual combination distributed in commerce, including all coil-only and blower coil combinations.

Single-Split-System HP (including Space-Constrained and SDHV) | Every individual combination distributed in commerce.

Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—non-SDHV (including Space-Constrained) | For each model of outdoor unit, at a minimum, a non-ducted “tested combination.” For any model of outdoor unit also sold with models of ducted indoor units, a ducted “tested combination.” When determining represented values on or after the compliance date of any amended energy conservation standards, the ducted “tested combination” must comprise the highest static variety of ducted indoor unit distributed in commerce (i.e., conventional, mid-static, or low-static). Additional representations are allowed, as described in paragraph (d)(3) of this section.

Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—SDHV | For each model of outdoor unit, an SDHV “tested combination.” Additional representations are allowed, as described in paragraph (d)(3) of this section.

Indoor Unit Only Distributed in Commerce by ICM (Independent Coil Manufacturer) | Single-Split-System Air Conditioner (including Space-Constrained and SDHV) | Every individual combination distributed in commerce.

Single-Split-System Heat Pump (including Space-Constrained and SDHV)

Multi-Split, Multi-Circuit, or Multi-Head Mini-Split Split System—SDHV | For a model of indoor unit within each basic model, a SDHV “tested combination.” Additional representations are allowed, as described in section (d)(3)(ii) of this section.

Outdoor Unit with no Match | Every model of outdoor unit distributed in commerce (tested with a model of coil-only indoor unit as specified in paragraph (c)(2) of this section).

(2) Refrigerants. (i) If a model of outdoor unit (used in a single-split, multi-split, multi-circuit, multi-head mini-split, and/or outdoor unit with no match system) is distributed in commerce and approved for use with multiple refrigerants, a manufacturer must determine all represented values for that model using each refrigerant that can be used in an individual combination of the basic model (including outdoor units with no match or “tested combinations”). This requirement may apply across the listed categories in table 1 to paragraph (b)(1) of this section. A refrigerant is considered approved for use if it is listed on the nameplate of the outdoor unit. If any of the refrigerants approved for use is HCFC-22 or has a 95 °F midpoint saturation absolute pressure that is ±18 percent of the 95 °F saturation absolute pressure for HCFC-22, or if there are no refrigerants designated as approved for use, a manufacturer must determine represented values (including SEER2, HSPF2, cooling capacity, and heating capacity, as applicable) for, at a minimum, an outdoor unit with no match. If a model of outdoor unit is not charged with a specified refrigerant from the point of manufacture or if the unit is shipped requiring the addition of more than two pounds of refrigerant to meet the charge required for testing per Section 5.1.8 of AHRI 210/240-2023 (incorporated by reference, see § 429.4) (unless either {a} the factory charge is equal to or greater than 70 percent of the outdoor unit internal volume multiplied by the liquid density of refrigerant at 95 °F or {b} an A2L refrigerant is approved for use and listed in the certification report), a manufacturer must determine represented values (including SEER2, HSPF2, cooling capacity, and heating capacity, as applicable) for, at a minimum, an outdoor unit with no match.

(ii) If a model is approved for use with multiple refrigerants, a manufacturer may make multiple separate representations for the performance of that model (all within the same individual combination or outdoor unit with no match) using the multiple approved refrigerants. In the alternative, manufacturers may certify the model (all within the same individual combination or outdoor unit with no match) with a single representation, provided that the represented value is no more efficient than its performance using the least-efficient refrigerant. A single representation made for multiple refrigerants may not include equipment in multiple categories or equipment subcategories listed in table 1 to paragraph (b)(1) of this section.

(3) Limitations for represented values of individual combinations. Paragraph (b)(3)(i) of this section explains the limitations for represented values of individual combinations (or “tested combinations”).

(i) Multiple product classes. Models of outdoor units that are rated and distributed in individual combinations that span multiple product classes must be tested, rated, and certified pursuant to paragraph (b) of this section as compliant with the applicable standard for each product class.

(ii) Reserved.

(4) Requirements. All represented values under paragraph (b) of this section must be based on testing in accordance with the requirements in paragraph (c) of this section or the application of an AEDM or other methodology as allowed in paragraph (d) of this section.

(c) Units tested—(1) General. The general requirements of § 429.11 apply to air-cooled, three-phase, small commercial package air conditioning and heating equipment with a cooling capacity of less than 65,000 Btu/h, and air-cooled, three-phase, variable refrigerant flow multi-split air conditioners and heat pumps with a cooling capacity of less than 65,000 Btu/h; and

(2) Sampling plans and represented values. For individual models (for single-package systems) or individual combinations (for split-systems, including “tested combinations” for multi-split, multi-circuit, and multi-head mini-split systems) with represented values determined through testing, each individual model/combination (or “tested combination”) must have a sample of sufficient size tested in accordance with the applicable provisions of this subpart. For heat pumps (other than heating-only heat pumps), all units of the sample population must be tested in both the cooling and heating modes and the results used for determining all representations. The represented values for any individual model/combination must be assigned such that:

(i) SEER2 and HSPF2. Any represented value of the energy efficiency or other measure of energy consumption for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the ith sample; or,

(B) The lower 90 percent confidence limit (LCL) of the true mean divided by 0.95, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.90 is the t statistic for a 90 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A of this subpart). Round represented values of SEER2 and HSPF2 to the nearest 0.05.

(ii) Cooling Capacity and Heating Capacity. The represented values of cooling capacity and heating capacity must each be a self-declared value that is:

(A) Less than or equal to the lower of:

(1) The mean of the sample, where:

and, x is the sample mean; n is the number of samples; and xi is the i th sample; or,

(2) The lower 90 percent confidence limit (LCL) of the true mean divided by 0.95, where:

And x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.90 is the t statistic for a 90 percent one-tailed confidence interval with n−1 degrees of freedom (from appendix D to this subpart).

(B) Rounded according to:

(1) The nearest 100 Btu/h if cooling capacity or heating capacity is less than 20,000 Btu/h,

(2) The nearest 200 Btu/h if cooling capacity or heating capacity is greater than or equal to 20,000 Btu/h but less than 38,000 Btu/h, and

(3) The nearest 500 Btu/h if cooling capacity or heating capacity is greater than or equal to 38,000 Btu/h and less than 65,000 Btu/h.

(d) Determination of represented values—(1) All basic models except outdoor units with no match and multi-split systems, multi-circuit systems, and multi-head mini-split systems. For every individual model/combination within a basic model, either—

(i) A sample of sufficient size, comprised of production units or representing production units, must be tested as complete systems with the resulting represented values for the individual model/combination obtained in accordance with paragraphs (c)(1) and (2) of this section; or

(ii) The represented values of the measures of energy efficiency or energy consumption through the application of an AEDM in accordance with paragraph (e) of this section and § 429.70.

(2) Outdoor units with no match. All models of outdoor units with no match within a basic model must be tested with a model of coil-only indoor unit meeting the requirements of Section 5.1.6.2 of AHRI 210/240-2023. Models of outdoor units with no match may not be rated with an AEDM, other than to determine the represented values for models using approved refrigerants other than the one used in testing.

(3) For multi-split systems, multi-circuit systems, and multi-head mini-split systems. The following applies:

(i) For each non-SDHV basic model, at a minimum, a manufacturer must test the model of outdoor unit with a “tested combination” composed entirely of non-ducted indoor units. For any models of outdoor units also sold with models of ducted indoor units, a manufacturer must test a second “tested combination” composed entirely of ducted indoor units (in addition to the non-ducted combination). The ducted “tested combination” must comprise the highest static variety of ducted indoor unit distributed in commerce (i.e., conventional, mid-static, or low-static).

(ii) If a manufacturer chooses to make representations of a variety of a basic model (i.e., conventional, low static, or mid-static) other than a variety for which a representation is required under paragraph (b)(1) of this section the manufacturer must conduct testing of a tested combination according to the requirements in paragraphs (c)(1) and (2) of this section.

(iii) For basic models that include mixed combinations of indoor units (i.e., combinations that are comprised of any two of the following varieties—non-ducted, low-static, mid-static, and conventional ducted indoor units), the represented value for the mixed combination is the mean of the represented values for the individual component combinations as determined in accordance with paragraphs (c)(1) and (2) and (d)(3)(i) and (ii) of this section.

(iv) For each SDHV basic model distributed in commerce by an OUM, the OUM must, at a minimum, test the model of outdoor unit with a “tested combination” composed entirely of SDHV indoor units. For each SDHV basic model distributed in commerce by an ICM, the ICM must test the model of indoor unit with a “tested combination” composed entirely of SDHV indoor units, where the outdoor unit is the least efficient model of outdoor unit with which the SDHV indoor unit will be paired. The least efficient model of outdoor unit is the model of outdoor unit in the lowest SEER2 combination as certified by the outdoor unit manufacturer. If there are multiple outdoor unit models with the same lowest SEER2 represented value, the indoor coil manufacturer may select one for testing purposes.

(v) For basic models that include SDHV and an indoor unit of another variety (i.e., non-ducted, low-static, mid-static, and conventional ducted), the represented value for the mixed SDHV/other combination is the mean of the represented values for the SDHV and other tested combination as determined in accordance with paragraphs (c)(1) and (2) and paragraphs (d)(3)(i) through (ii) of this section.

(vi) All other individual combinations of models of indoor units for the same model of outdoor unit for which the manufacturer chooses to make representations must be rated as separate basic models, and the provisions of paragraphs (c)(1) and (2) and (d)(3)(i) through (v) of this section apply.

(e) Alternative efficiency determination methods. In lieu of testing, represented values of efficiency or consumption may be determined through the application of an AEDM pursuant to the requirements of § 429.70(l) and the provisions of this section.

(1) Energy efficiency. Any represented value of the SEER2, HSPF2, or other measure of energy efficiency of an individual model/combination for which consumers would favor higher values must be less than or equal to the output of the AEDM but no less than the standard.

(2) Cooling capacity. The represented value of cooling capacity of an individual model/combination must be no greater than the cooling capacity output simulated by the AEDM.

(3) Heating capacity. The represented value of heating capacity of an individual model/combination must be no greater than the heating capacity output simulated by the AEDM.

(f) Certification reports. This paragraph specifies the information that must be included in a certification report.

(1) The requirements of § 429.12; and

(2) Pursuant to § 429.12(b)(13), for each individual model (for single-package systems) or individual combination (for split-systems, including outdoor units with no match and “tested combinations” for multi-split, multi-circuit, and multi-head mini-split systems), a certification report must include the following public equipment-specific information:

(i) Commercial package air conditioning equipment that is air-cooled with a cooling capacity of less than 65,000 Btu/h (3-Phase): The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/Wh)), and the rated cooling capacity in British thermal units per hour (Btu/h).

(ii) Commercial package heating equipment that is air-cooled with a cooling capacity of less than 65,000 Btu/h (3-Phase): The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/Wh)), the heating seasonal performance factor (HSPF in British thermal units per Watt-hour (Btu/Wh)), and the rated cooling capacity in British thermal units per hour (Btu/h).

(iii) Variable refrigerant flow multi-split air conditioners that are air-cooled with rated cooling capacity of less than 65,000 Btu/h (3-Phase): The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/Wh)) and rated cooling capacity in British thermal units per hour (Btu/h).

(iv) Variable refrigerant flow multi-split heat pumps that are air-cooled with rated cooling capacity of less than 65,000 Btu/h (3-Phase): The seasonal energy efficiency ratio (SEER) in British thermal units per Watt-hour (Btu/Wh), the heating seasonal performance factor (HSPF) in British thermal units per Watt-hour (Btu/Wh), and rated cooling capacity in British thermal units per hour (Btu/h).

(2) Pursuant to § 429.12(b)(13), for each individual model (for single-package systems) or individual combination (for split-systems, including outdoor units with no match and “tested combinations” for multi-split, multi-circuit, and multi-head mini-split systems), a certification report must include the following public equipment-specific information:

(i) Commercial package air conditioning equipment that is air-cooled with a cooling capacity of less than 65,000 Btu/h (3-Phase):

(A) When certifying compliance with a SEER standard: The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/Wh)), and the rated cooling capacity in British thermal units per hour (Btu/h).

(B) When certifying compliance with a SEER2 standard: the seasonal energy efficiency ratio 2 (SEER2 in British thermal units per Watt-hour (Btu/Wh)) and the rated cooling capacity in British thermal units per hour (Btu/h).

(ii) Commercial package heating equipment that is air-cooled with a cooling capacity of less than 65,000 Btu/h (3-Phase):

(A) When certifying compliance with an HSPF standard: The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/Wh)), the heating seasonal performance factor (HSPF in British thermal units per Watt-hour (Btu/Wh)), and the rated cooling capacity in British thermal units per hour (Btu/h).

(B) When certifying compliance with an HSPF2 standard: the seasonal energy efficiency ratio 2 (SEER2 in British thermal units per Watt-hour (Btu/Wh)), the heating seasonal performance factor 2 (HSPF2 in British thermal units per Watt-hour (Btu/Wh)) and the rated cooling capacity in British thermal units per hour (Btu/h).

(iii) Air-cooled, three-phase, variable refrigerant flow multi-split air conditioners with a cooling capacity of less than 65,000 Btu/h:

(A) When certifying compliance with a SEER standard: The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/Wh)), and the rated cooling capacity in British thermal units per hour (Btu/h).

(B) When certifying compliance with a SEER2 standard: the seasonal energy efficiency ratio 2 (SEER2 in British thermal units per Watt-hour (Btu/Wh)) and the rated cooling capacity in British thermal units per hour (Btu/h).

(iv) Air-cooled, three-phase, variable refrigerant flow multi-split heat pumps with a cooling capacity of less than 65,000 Btu/h:

(A) When certifying compliance with an HSPF standard: The seasonal energy efficiency ratio (SEER in British thermal units per Watt-hour (Btu/Wh)), the heating seasonal performance factor (HSPF in British thermal units per Watt-hour (Btu/Wh)), and the rated cooling capacity in British thermal units per hour (Btu/h).

(B) When certifying compliance with an HSPF2 standard: the seasonal energy efficiency ratio 2 (SEER2 in British thermal units per Watt-hour (Btu/Wh)), the heating seasonal performance factor 2 (HSPF2 in British thermal units per Watt-hour (Btu/Wh)) and the rated cooling capacity in British thermal units per hour (Btu/h).

(3) Pursuant to § 429.12(b)(13), for each individual model/combination (including outdoor units with no match and “tested combinations”), a certification report must include supplemental information submitted in PDF format. The equipment-specific, supplemental information must include any additional testing and testing set up instructions (e.g., charging instructions) for the basic model; identification of all special features that were included in rating the basic model; and all other information (e.g., operational codes or component settings) necessary to operate the basic model under the required conditions specified by the relevant test procedure. A manufacturer may also include with a certification report other supplementary items in PDF format (e.g., manuals) for DOE consideration in performing testing under subpart C of this part. The equipment-specific, supplemental information must include at least the following:

(i) Air cooled commercial package air conditioning equipment with a cooling capacity of less than 65,000 Btu/h (3-phase): The nominal cooling capacity in British thermal units per hour (Btu/h); rated airflow in standard cubic feet per minute (SCFM) for each fan coil; rated static pressure in inches of water; refrigeration charging instructions (e.g., refrigerant charge, superheat and/or subcooling temperatures); frequency or control set points for variable-speed components (e.g., compressors, VFDs); required dip switch/control settings for step or variable components; a statement whether the model will operate at test conditions without manufacturer programming; any additional testing instructions, if applicable; if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating; and which, if any, special features were included in rating the basic model.

(ii) Commercial package heating equipment that is air-cooled with a cooling capacity of less than 65,000 Btu/h (3-phase): The nominal cooling capacity in British thermal units per hour (Btu/h); rated heating capacity in British thermal units per hour (Btu/h); rated airflow in standard cubic feet per minute (SCFM) for each fan coil; rated static pressure in inches of water; refrigeration charging instructions (e.g., refrigerant charge, superheat and/or subcooling temperatures); frequency or control set points for variable-speed components (e.g., compressors, VFDs); required dip switch/control settings for step or variable components; a statement whether the model will operate at test conditions without manufacturer programming; any additional testing instructions, if applicable; if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating; and which, if any, special features were included in rating the basic model.

(iii) Variable refrigerant flow multi-split air conditioners that are air-cooled with a cooling capacity of less than 65,000 Btu/h (3-Phase): The nominal cooling capacity in British thermal units per hour (Btu/h); outdoor unit(s) and indoor units identified in the tested combination; components needed for heat recovery, if applicable; rated airflow in standard cubic feet per minute (SCFM) for each indoor unit; rated static pressure in inches of water; compressor frequency set points; required dip switch/control settings for step or variable components; a statement whether the model will operate at test conditions without manufacturer programming; any additional testing instructions, if applicable; if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating; and which, if any, special features were included in rating the basic model. Additionally, upon DOE request, the manufacturer must provide a layout of the system set-up for testing including charging instructions consistent with the installation manual.

(iv) Variable refrigerant flow multi-split heat pumps that are air-cooled with a rated cooling capacity of less than 65,000 Btu/h (3-Phase): The nominal cooling capacity in British thermal units per hour (Btu/h); rated heating capacity in British thermal units per hour (Btu/h); outdoor unit(s) and indoor units identified in the tested combination; components needed for heat recovery, if applicable; rated airflow in standard cubic feet per minute (SCFM) for each indoor unit; rated static pressure in inches of water; compressor frequency set points; required dip switch/control settings for step or variable components; a statement whether the model will operate at test conditions without manufacturer programming; any additional testing instructions, if applicable; if a variety of motors/drive kits are offered for sale as options in the basic model to account for varying installation requirements, the model number and specifications of the motor (to include efficiency, horsepower, open/closed, and number of poles) and the drive kit, including settings, associated with that specific motor that were used to determine the certified rating; and which, if any, special features were included in rating the basic model. Additionally, upon DOE request, the manufacturer must provide a layout of the system set-up for testing including charging instructions consistent with the installation manual.

[87 FR 77317, Dec. 16, 2022, as amended at 89 FR 82068, Oct. 9, 2024; 90 FR 43382, Sept. 9, 2025]

§ 429.68 Air cleaners.

(a) Sampling plan for selection of units for testing. (1) The requirements of § 429.11 are applicable to air cleaners; and

(2) For each basic mode of air cleaners, a sample of sufficient size shall be randomly selected and tested to ensure that—

(i) Any represented value of annual energy consumption or other measure of energy consumption of a basic mode for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample:

Where: x is the sample mean; n is the number of samples; and, xi is the ith sample.

Or,

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.10:

Where: x is the sample mean; s is the sample standard deviation; n is the number of samples; and,

t0.95 is the t statistic for a 95 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A).

And

(ii) Any represented value of the integrated energy factor or other measure of energy consumption of a basic mode for which consumers would favor higher values shall be less than or equal to the high:

(A) The mean of the sample:

Where: x is the sample mean;

n is the number of samples; and,

xi is the ith sample.

Or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.90:

Where: x is the sample mean; s is the sample standard deviation; n is the number of samples; and, t0.95 is the t statistic for a 95 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A).

And

(3) Any represented value of the pollen, smoke, dust, and PM2.5 clean air delivery rate (CADR) of a basic model must be the mean of the CADR for each tested unit of the basic model. Round the mean clean air delivery rate value to the nearest whole number.

(4) Any represented value of the effective room size, in square feet, of a basic model must be calculated as the product of 1.55 and the represented smoke CADR value of the basic model as determined in paragraph (a)(3) of this section. Round the value of the effective room size, in square feet, to the nearest whole number.

(5) Round the value of the annual energy consumption, in kWh/year, of a basic model to the nearest whole number.

(6) Round the value of the integrated energy factor of a basic model to the nearest 0.1 CADR/W.

(b)[Reserved]

[88 FR 14043, Mar. 6, 2023, as amended at 89 FR 82069, Oct. 9, 2024; 90 FR 43383, Sept. 9, 2025] ]

§ 429.69 Fans and blowers.

(a) Determination of represented values of fans and blowers other than air circulating fans. A manufacturer must determine the represented values for each basic model, either by testing in conjunction with the applicable sampling provisions or by applying an AEDM as set forth in this section and in § 429.70(n). Manufacturers must update represented values to account for any change in the applicable motor standards in Table 5 of § 431.25 of this chapter and certify amended values as of the next annual certification (as applicable).

(1) Testing. (i) If the represented values for a given basic model are determined through testing, a sample of at least one unit must be selected and the requirements of § 429.11 apply.

(ii) If only one unit is tested, at each duty point characterized by a flow and speed value, any represented value of fan electrical power (“FEP”), fan shaft input power, or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the tested value. Represented values other than FEP must be rounded to the nearest hundredth. FEP must be rounded to three significant figures.

(iii) If only one unit is tested, at each duty point characterized by a flow and speed value, any represented value of fan energy index (“FEI”), or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the tested value. Represented values must be rounded to the nearest hundredth.

(iv) If more than one unit is tested, at each duty point characterized by a flow and speed value, any represented value of fan electrical input power (“FEP”), fan shaft input power, or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where

Where is x the sample mean; n is the number of samples, and xi is the i th sample. Or,

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A of subpart B of this part). Represented values other than FEP must be rounded to the nearest hundredth. FEP must be rounded to three significant figures.

(v) If more than one unit is tested, any represented value of the fan energy index (“FEI”), or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where

Where x is the sample mean; n is the number of samples, and xi is the i th sample. Or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:

and x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A of subpart B of this part). Represented values must be rounded to the nearest hundredth.

(vi) At each duty point characterized by a flow and speed value, the representative value of static or total pressure of a basic model of must be the mean of the tested static or total pressure for each tested unit. If only one unit is tested, the representative value of static or total pressure at the duty point of a basic model is the tested value.

(2) Alternative efficiency determination methods. In lieu of testing, the represented values for a basic model must be determined through the application of an AEDM pursuant to the requirements of § 429.70(n) and the provisions of this section, where: the represented values of any basic model used to validate an AEDM must be calculated under paragraph (b)(1) of this section.

(b) Determination of represented values for air circulating fans. A manufacturer must determine the represented values for each basic model, either by testing in conjunction with the applicable sampling provisions or by applying an AEDM as set forth in this section and in § 429.70(n).

(1) Testing. (i) If the represented values for a given basic model are determined through testing, the requirements of § 429.11 apply.

(ii) Any represented value of fan electrical input power (“WE”), or other measure of energy consumption of a basic model for which consumers would favor lower values shall be greater than or equal to the higher of:

(A) The mean of the sample, where

Where x is the sample mean; n is the number of samples, and xi is the i th sample. Or,

(B) The upper 95 percent confidence limit (UCL) of the true mean divided by 1.05, where:

and x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A of subpart B of this part). Represented values must be rounded to the nearest hundredth.

(iii) Any represented value of efficacy (Effcirc) or other measure of energy consumption of a basic model for which consumers would favor higher values shall be less than or equal to the lower of:

(A) The mean of the sample, where

Where x is the sample mean; n is the number of samples, and xi is the i th sample. Or,

(B) The lower 95 percent confidence limit (LCL) of the true mean divided by 0.95, where:

and x is the sample mean; s is the sample standard deviation; n is the number of samples; and t0.95 is the t statistic for a 95 percent one-tailed confidence interval with n-1 degrees of freedom (from appendix A of subpart B of this part). Represented values must be rounded to the nearest hundredth.

(2) Alternative efficiency determination methods. In lieu of testing, the represented values for a basic model must be determined through the application of an AEDM pursuant to the requirements of § 429.70(n) and the provisions of this section, where: the represented values of any basic model used to validate an AEDM must be calculated under paragraph (b)(1) of this section.

[88 FR 27387, May 1, 2023, as amended at 88 FR 53375, Aug. 8, 2023]

§ 429.70 Alternative methods for determining energy efficiency and energy use.

(a) General. A manufacturer of covered products or covered equipment explicitly authorized to use an AEDM in §§ 429.14 through 429.69 may not distribute any basic model of such product or equipment in commerce unless the manufacturer has determined the energy consumption or energy efficiency of the basic model, either from testing the basic model in conjunction with DOE's certification sampling plans and statistics or from applying an alternative method for determining energy efficiency or energy use (i.e., AEDM) to the basic model, in accordance with the requirements of this section. In instances where a manufacturer has tested a basic model to validate the AEDM, the represented value of energy consumption or efficiency of that basic model must be determined and certified according to results from actual testing in conjunction with 10 CFR part 429, subpart B certification sampling plans and statistics. In addition, a manufacturer may not knowingly use an AEDM to overrate the efficiency of a basic model.

(b) Testing. Testing for each covered product or covered equipment must be done in accordance with the sampling plan provisions established in § 429.11 and the testing procedures in parts 430 and 431 of this chapter.

(c) Alternative efficiency determination method (AEDM) for commercial HVAC & WH products (excluding air-cooled, three-phase, small commercial package air conditioning and heating equipment with a cooling capacity of less than 65,000 Btu/h and air-cooled, three-phase, variable refrigerant flow multi-split air conditioners and heat pumps with less than 65,000 Btu/h cooling capacity), and commercial refrigerators, freezers, and refrigerator-freezers—(1) Criteria an AEDM must satisfy. A manufacturer may not apply an AEDM to a basic model to determine its efficiency pursuant to this section unless:

(i) The AEDM is derived from a mathematical model that estimates the energy efficiency or energy consumption characteristics of the basic model as measured by the applicable DOE test procedure;

(ii) The AEDM is based on engineering or statistical analysis, computer simulation or modeling, or other analytic evaluation of performance data; and

(iii) The manufacturer has validated the AEDM, in accordance with paragraph (c)(2) of this section with basic models that meet the current Federal energy conservation standards.

(2) Validation of an AEDM. Before using an AEDM, the manufacturer must validate the AEDM's accuracy and reliability as follows:

(i) The manufacturer must select at least the minimum number of basic models for each validation class specified in paragraph (c)(2)(iv) of this section to which the particular AEDM applies. Using the AEDM, calculate the energy use or efficiency for each of the selected basic models.

(A) Except for variable refrigerant flow multi-split air conditioners and heat pumps (other than air-cooled with rated cooling capacity less than 65,000 btu/h) when certifying to standards in terms of IEER, test a single unit of each selected basic model in accordance with paragraph (c)(2)(iii) of this section. Compare the results from the single unit test and the AEDM energy use or efficiency output according to paragraph (c)(2)(ii) of this section. The manufacturer is responsible for ensuring the accuracy and reliability of the AEDM.

(B) For variable refrigerant flow multi-split air conditioners and heat pumps (other than air-cooled with rated cooling capacity less than 65,000 btu/h) when certifying to standards in terms of IEER, the following provisions apply.

(1) If a manufacturer makes representations for a single type of indoor unit combination (i.e., only ducted, non-ducted, or SDHV indoor unit combinations) across all the basic models for which an AEDM applies, the manufacturer must test at least a single tested combination of that type of indoor unit combination for each selected basic model in accordance with paragraph (c)(2)(iii) of this section.

(2) If a manufacturer makes representations for two types of indoor unit combinations (i.e., ducted, non-ducted, and/or SDHV) within or across all the basic models for which the AEDM applies, the manufacturer must test at least a single tested combination of a selected basic model for one of those two types of indoor unit combination, and at least a single tested combination of a different selected basic model for the other of those two types of indoor unit combination, each tested in accordance with paragraph (c)(2)(iii) of this section.

(3) If a manufacturer makes representations for all three types of indoor unit combinations (i.e., ducted, non-ducted, and SDHV) within or across basic models for which the AEDM applies, the manufacturer must test at least a single tested combination of a selected basic model as a non-ducted tested combination and a single tested combination of a different selected basic model as a ducted tested combination, each in accordance with paragraph (c)(2)(iii) of this section.

(4) In all cases, compare the results from each tested basic model and the AEDM energy use or efficiency output according to paragraph (c)(2)(ii) of this section. The manufacturer is responsible for ensuring the accuracy and reliability of the AEDM.

(ii) Individual model tolerances. (A) For those covered products with an energy-efficiency metric, the predicted efficiency for each model calculated by applying the AEDM may not be more than five percent greater than the efficiency determined from the corresponding test of the model.

(B) For those covered products with an energy-consumption metric, the predicted energy consumption for each model, calculated by applying the AEDM, may not be more than five percent less than the energy consumption determined from the corresponding test of the model.

(C) For all covered products, the predicted energy efficiency or consumption for each model calculated by applying the AEDM must meet or exceed the applicable federal energy conservation performance standard.

(D) An AEDM that is validated based on test results obtained from one or more field tests (pursuant to § 431.86(c)) can only be used to certify the performance of basic models of commercial packaged boilers with a certified rated input greater than 5,000,000 Btu/h.

(iii) Additional test unit requirements. (A) Each AEDM must be supported by test data obtained from physical tests of current models; and

(B) Test results used to validate the AEDM must meet or exceed current, applicable Federal standards as specified in part 431 of this chapter; and

(C) Each test must have been performed in accordance with the DOE test procedure specified in parts 430 or 431 of this chapter or test procedure waiver for which compliance is required at the time the basic model is distributed in commerce.

(iv) Validation classes.

Table 1 to Paragraph (c)(2)(iv)

Validation class | Minimum number of distinct models that must be tested per AEDM

(A) Commercial HVAC Validation Classes

Air-Cooled, Split and Packaged ACs and HPs Greater than or Equal to 65,000 Btu/h Cooling Capacity and Less than 760,000 Btu/h Cooling Capacity | 2 Basic Models.

Water-Cooled, Split and Packaged ACs and HPs, All Cooling Capacities | 2 Basic Models.

Evaporatively-Cooled, Split and Packaged ACs and HPs, All Capacities | 2 Basic Models.

Water-Source HPs, All Capacities | 2 Basic Models.

Single Package Vertical ACs and HPs | 2 Basic Models.

Packaged Terminal ACs and HPs | 2 Basic Models.

Air-Cooled, Variable Refrigerant Flow ACs and HPs Greater than or Equal to 65,000 Btu/h Cooling Capacity | 2 Basic Models.

Water-Cooled, Variable Refrigerant Flow ACs and HPs | 2 Basic Models.

Computer Room Air Conditioners, Air Cooled | 2 Basic Models.

Computer Room Air Conditioners, Water-Cooled and Glycol-Cooled | 2 Basic Models.

Direct Expansion-Dedicated Outdoor Air Systems, Air-cooled or Air-source Heat Pump, Without Ventilation Energy Recovery Systems | 2 Basic Models.

Direct Expansion-Dedicated Outdoor Air Systems, Air-cooled or Air-source Heat Pump, With Ventilation Energy Recovery Systems | 2 Basic Models.

Direct Expansion-Dedicated Outdoor Air Systems, Water-cooled, Water-source Heat Pump, or Ground Source Closed-loop Heat Pump, Without Ventilation Energy Recovery Systems | 2 Basic Models.

Direct Expansion-Dedicated Outdoor Air Systems, Water-cooled, Water-source Heat Pump, or Ground Source Closed-loop Heat Pump, With Ventilation Energy Recovery Systems | 2 Basic Models.

(B) Commercial Water Heater Validation Classes

Gas-fired Water Heaters and Hot Water Supply Boilers Less than 10 Gallons | 2 Basic Models.

Gas-fired Water Heaters and Hot Water Supply Boilers Greater than or Equal to 10 Gallons | 2 Basic Models.

Oil-fired Water Heaters and Hot Water Supply Boilers Less than 10 Gallons | 2 Basic Models.

Oil-fired Water Heaters and Hot Water Supply Boilers Greater than or Equal to 10 Gallons | 2 Basic Models.

Electric Water Heaters | 2 Basic Models.

Heat Pump Water Heaters | 2 Basic Models.

Unfired Hot Water Storage Tanks | 2 Basic Models.

(C) Commercial Packaged Boilers Validation Classes

Gas-fired, Hot Water Only Commercial Packaged Boilers | 2 Basic Models.

Gas-fired, Steam Only Commercial Packaged Boilers | 2 Basic Models.

Gas-fired Hot Water/Steam Commercial Packaged Boilers | 2 Basic Models.

Oil-fired, Hot Water Only Commercial Packaged Boilers | 2 Basic Models.

Oil-fired, Steam Only Commercial Packaged Boilers | 2 Basic Models.

Oil-fired Hot Water/Steam Commercial Packaged Boilers | 2 Basic Models.

(D) Commercial Furnace Validation Classes

Gas-fired Furnaces | 2 Basic Models.

Oil-fired Furnaces | 2 Basic Models.

(E) Commercial Refrigeration Equipment Validation Classes 1

Self-Contained Open Refrigerators | 2 Basic Models.

Self-Contained Open Freezers | 2 Basic Models.

Remote Condensing Open Refrigerators | 2 Basic Models.

Remote Condensing Open Freezers | 2 Basic Models.

Self-Contained Closed Refrigerators | 2 Basic Models.

Self-Contained Closed Freezers | 2 Basic Models.

Remote Condensing Closed Refrigerators | 2 Basic Models.

Remote Condensing Closed Freezers | 2 Basic Models.

1 The minimum number of tests indicated above must be comprised of a transparent model, a solid model, a vertical model, a semi-vertical model, a horizontal model, and a service-over-the counter model, as applicable based on the equipment offering. However, manufacturers do not need to include all types of these models if it will increase the minimum number of tests that need to be conducted.

(3) AEDM records retention requirements. If a manufacturer has used an AEDM to determine representative values pursuant to this section, the manufacturer must have available upon request for inspection by the Department records showing:

(i) The AEDM, including the mathematical model, the engineering or statistical analysis, and/or computer simulation or modeling that is the basis of the AEDM;

(ii) Product information, complete test data, AEDM calculations, and the statistical comparisons from the units tested that were used to validate the AEDM pursuant to paragraph (c)(2) of this section; and

(iii) Product information and AEDM calculations for each basic model to which the AEDM has been applied.

(4) Additional AEDM requirements. If requested by the Department and at DOE's discretion, the manufacturer must perform at least one of the following:

(i) Conduct simulations before representatives of the Department to predict the performance of particular basic models of the product to which the AEDM was applied;

(ii) Provide analyses of previous simulations conducted by the manufacturer; or

(iii) Conduct certification testing of basic models selected by the Department.

(5) AEDM verification testing. DOE may use the test data for a given individual model generated pursuant to § 429.104 to verify the certified rating determined by an AEDM as long as the following process is followed:

(i) Selection of units. DOE will obtain units for test from retail, where available. If units cannot be obtained from retail, DOE will request that a unit be provided by the manufacturer;

(ii) Lab requirements. DOE will conduct testing at an independent, third-party testing facility of its choosing. In cases where no third-party laboratory is capable of testing the equipment, it may be tested at a manufacturer's facility upon DOE's request.

(iii) Manufacturer participation. (A) Except when testing variable refrigerant flow systems (which are governed by the rules found at § 431.96(f)), testing will be completed without a manufacturer representative on-site. In limited instances further described in paragraph (c)(5)(iii)(B) of this section, a manufacturer and DOE representative may be present to witness the test set-up.

(B) A manufacturer's representative may request to be on-site to witness the test set-up if:

(1) The installation manual for the basic model specifically requires it to be started only by a factory-trained installer; or

(2) The manufacturer has elected, as part of the certification of that basic model, to have the opportunity to witness the test set-up. A manufacturer may elect to witness the test set-up for the initial verification test for no more than 10 percent of the manufacturer's basic models submitted for certification and rated with an AEDM per validation class specified in section (c)(2)(iv) of this paragraph. The 10-percent limit applies to all of the eligible basic models submitted for certification by a given manufacturer no matter how many AEDMs a manufacturer has used to develop its ratings. The 10-percent limit is determined by first calculating 10 percent of the total number of basic models rated with an AEDM per validation class, and then truncating the resulting product. Manufacturers who have submitted fewer than 10 basic models rated with an AEDM for certification may elect to have the opportunity to witness the test set-up of one basic model. A manufacturer must identify the basic models it wishes to witness as part of its certification report(s) prior to the basic model being selected for verification testing.

(3) In those instances in which a manufacturer has not provided the required information as specified in § 429.12(b)(13) for a given basic model that has been rated and certified as compliant with the applicable standards, a manufacturer is precluded from witnessing the testing set up for that basic model.

(C) A DOE representative will be present for the test set-up in all cases where a manufacturer representative requests to be on-site for the test set-up. The manufacturer's representative cannot communicate with a lab representative outside of the DOE representative's presence.

(D) If DOE has obtained through retail channels a unit for test that meets either of the conditions in paragraph (c)(5)(iii)(B) of this section, DOE will notify the manufacturer that the basic model was selected for testing and that the manufacturer may have a representative present for the test set-up. If the manufacturer does not respond within five calendar days of receipt of that notification, the manufacturer waives the option to be present for test set-up, and DOE will proceed with the test set-up without a manufacturer's representative present.

(E) If DOE has obtained directly from the manufacturer a unit for test that meets either of the conditions in paragraph (c)(5)(iii)(B) of this section, DOE will notify the manufacturer of the option to be present for the test set-up at the time the unit is purchased. DOE will specify the date (not less than five calendar days) by which the manufacturer must notify DOE whether a manufacturer's representative will be present. If the manufacturer does not notify DOE by the date specified, the manufacturer waives the option to be present for the test set-up, and DOE will proceed with the test set-up without a manufacturer's representative present.

(F) DOE will review the certification submissions from the manufacturer that were on file as of the date DOE purchased a basic model (under paragraph (c)(5)(iii)(D) of this section) or the date DOE notifies the manufacturer that the basic model has been selected for testing (under paragraph (c)(5)(iii)(E) of this section) to determine if the manufacturer has indicated that it intends to witness the test set-up of the selected basic model. DOE will also verify that the manufacturer has not exceeded the allowable limit of witness testing selections as specified in paragraph (c)(5)(iii)(B)(2) of this section. If DOE discovers that the manufacturer exceeded the limits specified in paragraph (c)(5)(iii)(B)(2), DOE will notify the manufacturer of this fact and deny its request to be present for the test set-up of the selected basic model. The manufacturer must update its certification submission to ensure it has not exceeded the allowable limit of witness testing selections as specified in paragraph (c)(5)(iii)(B)(2) to be present at set-up for future selections. At this time DOE will also review the supplemental PDF submission(s) for the selected basic model to determine that all necessary information has been provided to the Department.

(G) If DOE determines, pursuant to paragraph (c)(5)(ii) of this section, that the model should be tested at the manufacturer's facility, a DOE representative will be present on site to observe the test set-up and testing with the manufacturer's representative. All testing will be conducted at DOE's direction, which may include DOE-contracted personnel from a third-party lab, as well as the manufacturer's technicians.

(H) As further explained in paragraph (c)(5)(v)(B) of this section, if a manufacturer's representative is present for the initial test set-up for any reason, the manufacturer forfeits any opportunity to request a retest of the basic model. Furthermore, if the manufacturer requests to be on-site for test set-up pursuant to paragraph (c)(5)(iii)(B) of this section but is not present on site, the manufacturer forfeits any opportunity to request a retest of the basic model.

(iv) Testing. At no time during verification testing may the lab and the manufacturer communicate without DOE authorization. All verification testing will be conducted in accordance with the applicable DOE test procedure, as well as each of the following to the extent that they apply:

(A) Any active test procedure waivers that have been granted for the basic model;

(B) Any test procedure guidance that has been issued by DOE;

(C) The installation and operations manual that is shipped with the unit;

(D) Any additional information that was provided by the manufacturer at the time of certification (prior to DOE obtaining the unit for test); and

(E) If during test set-up or testing, the lab indicates to DOE that it needs additional information regarding a given basic model in order to test in accordance with the applicable DOE test procedure, DOE may organize a meeting between DOE, the manufacturer and the lab to provide such information.

(v) Failure to meet certified rating. If a model tests worse than its certified rating by an amount exceeding the tolerance prescribed in paragraph (c)(5)(vi) of this section, DOE will notify the manufacturer. DOE will provide the manufacturer with all documentation related to the test set up, test conditions, and test results for the unit. Within the timeframe allotted by DOE, the manufacturer may then:

(A) Present all claims regarding testing validity; and

(B) If the manufacturer was not on site for the initial test set-up, request a retest of the previously tested unit with manufacturer and DOE representatives on-site for the test set-up. DOE will not conduct the retest using a different unit of the same basic model unless DOE and the manufacturer determine it is necessary based on the test results, claims presented, and DOE regulations.

(vi) Tolerances. (A) For consumption metrics, the result from a DOE verification test must be less than or equal to the certified rating × (1 + the applicable tolerance).

(B) For efficiency metrics, the result from a DOE verification test must be greater than or equal to the certified rating × (1 − the applicable tolerance).

Table 2 to Paragraph (c)(5)(vi)(B)

Equipment | Metric | Applicable tolerance

Commercial Packaged Boilers | Combustion Efficiency Thermal Efficiency Thermal Efficiency | 5% (0.05) 5% (0.05) 5% (0.05)

Commercial Water Heaters or Hot Water Supply Boilers | Standby Loss | 10% (0.1)

Unfired Storage Tanks | R-Value | 10% (0.1)

Air-Cooled, Split and Packaged ACs and HPs Greater Than or Equal to 65,000 Btu/h Cooling Capacity and Less Than 760,000 Btu/h Cooling Capacity | Energy Efficiency Ratio Energy Efficiency Ratio 2 Coefficient of Performance Coefficient of Performance 2 Integrated Energy Efficiency Ratio Integrated Ventilation, Economizing, and Cooling Integrated Ventilation and Heating Efficiency | 5% (0.05) 5% (0.05) 5% (0.05) 5% (0.05) 10% (0.1) 10% (0.1) 10% (0.1)

Water-Cooled, Split and Packaged ACs, All Cooling Capacities | Energy Efficiency Ratio Energy Efficiency Ratio 2 Integrated Energy Efficiency Ratio Integrated Ventilation, Economizing, and Cooling | 5% (0.05) 5% (0.05) 10% (0.1) 10% (0.1)

Evaporatively-Cooled, Split and Packaged ACs, All Capacities | Energy Efficiency Ratio Energy Efficiency Ratio 2 Integrated Energy Efficiency Ratio Integrated Ventilation, Economizing, and Cooling | 5% (0.05) 5% (0.05) 10% (0.1) 10% (0.1)

Water-Source HPs, All Capacities | Energy Efficiency Ratio Coefficient of Performance Integrated Energy Efficiency Ratio | 5% (0.05) 5% (0.05) 10% (0.1)

Single Package Vertical ACs and HPs | Energy Efficiency Ratio Coefficient of Performance | 5% (0.05) 5% (0.05)

Packaged Terminal ACs and HPs | Energy Efficiency Ratio Coefficient of Performance | 5% (0.05) 5% (0.05)

Variable Refrigerant Flow ACs and HPs (Excluding Air-Cooled, Three-phase with Less Than 65,000 Btu/h Cooling Capacity) | Energy Efficiency Ratio Coefficient of Performance Integrated Energy Efficiency Ratio | 5% (0.05) 5% (0.05) 10% (0.1)

Computer Room Air Conditioners | Sensible Coefficient of Performance | 5% (0.05)

Direct Expansion-Dedicated Outdoor Air Systems | Integrated Seasonal Coefficient of Performance 2 Integrated Seasonal Moisture Removal Efficiency 2 | 10% (0.1) 10% (0.1)

Commercial Warm-Air Furnaces | Thermal Efficiency | 5% (0.05)

Commercial Refrigeration Equipment | Daily Energy Consumption | 5% (0.05)

(vii) Invalid rating. If, following discussions with the manufacturer and a retest where applicable, DOE determines that the verification testing was conducted appropriately in accordance with the DOE test procedure, DOE will issue a determination that the rating for the model is invalid. The manufacturer must elect, within 15 days, one of the following to be completed in a time frame specified by DOE, which is never to exceed 180 days:

(A) Re-rate and re-certify the model based on DOE's test data alone; or

(B) Discontinue the model through the certification process; or

(C) Conduct additional testing and re-rate and re-certify the basic model based on all test data collected, including DOE's test data.

(viii) AEDM use. (A) If DOE has determined that a manufacturer made invalid ratings on two or more models rated using the same AEDM within a 24 month period, the manufacturer must take the action listed in the table corresponding to the number of invalid certified ratings. The twenty-four month period begins with a DOE determination that a rating is invalid through the process outlined above. Additional invalid ratings apply for the purposes of determining the appropriate consequences if the subsequent determination(s) is based on selection of a unit for testing within the twenty-four month period (i.e., subsequent determinations need not be made within 24 months).

Table 3 to Paragraph (c)(5)(viii)(A)

Number of invalid certified ratings from the same AEDM 2 within a rolling 24 month period 3 | Required manufacturer actions

2 | Submit different test data and reports from testing to validate that AEDM within the validation classes to which it is applied. 1 Adjust the ratings as appropriate.

4 | Conduct double the minimum number of validation tests for the validation classes to which the AEDM is applied. Note, the tests required under this paragraph (c)(5)(viii) must be performed on different models than the original tests required under paragraph (c)(2) of this section.

6 | Conduct the minimum number of validation tests for the validation classes to which the AEDM is applied at a third-part test facility; And Conduct addition testing, which is equal to 1/2 the minimum number of validation tests for the validation classes to which the AEDM is applied , at either the manufacturer's facility or a third-party test facility, at the manufacturer's discretion.

Note, the tests required under this paragraph (c)(5)(viii) must be performed on different models than the original tests performed under paragraph (c)(2) of this section.

> = 8 | Manufacturer has lost privilege to use AEDM. All ratings for models within the validation classes to which the AEDM applied should be rated via testing. Distribution cannot continue until certification(s) are corrected to reflect actual test data.

1 A manufacturer may discuss with DOE's Office of Enforcement whether existing test data on different basic models within the validation classes to which that specific AEDM was applied may be used to meet this requirement.

2 The “same AEDM” means a computer simulation or mathematical model that is identified by the manufacturer at the time of certification as having been used to rate a model or group of models.

3 The twenty-four month period begins with a DOE determination that a rating is invalid through the process outlined above. Additional invalid ratings apply for the purposes of determining the appropriate consequences if the subsequent determination(s) is based on testing of a unit that was selected for testing within the twenty-four month period (i.e., subsequent determinations need not be made within 24 months).

(B) If, as a result of eight or more invalid ratings, a manufacturer has lost the privilege of using an AEDM for rating, the manufacturer may regain the ability to use an AEDM by:

(1) Investigating and identifying cause(s) for failures;

(2) Taking corrective action to address cause(s);

(3) Performing six new tests per validation class, a minimum of two of which must be performed by an independent, third-party laboratory to validate the AEDM; and

(4) Obtaining DOE authorization to resume use of the AEDM.

(d) Alternative efficiency determination method for distribution transformers. A manufacturer may use an AEDM to determine the efficiency of one or more of its untested basic models only if it determines the efficiency of at least five of its other basic models (selected in accordance with paragraph (d)(3) of this section) through actual testing.

(1) Criteria an AEDM must satisfy. (i) The AEDM has been derived from a mathematical model that represents the electrical characteristics of that basic model;

(ii) The AEDM is based on engineering and statistical analysis, computer simulation or modeling, or other analytic evaluation of performance data; and

(iii) The manufacturer has substantiated the AEDM, in accordance with paragraph (d)(2) of this section, by applying it to, and testing, at least five other basic models of the same type, i.e., low-voltage dry-type distribution transformers, medium-voltage dry-type distribution transformers, or liquid-immersed distribution transformers.

(2) Substantiation of an AEDM. Before using an AEDM, the manufacturer must substantiate the AEDM's accuracy and reliability as follows:

(i) Apply the AEDM to at least five of the manufacturer's basic models that have been selected for testing in accordance with paragraph (d)(3) of this section, and calculate the power loss for each of these basic models;

(ii) Test at least five units of each of these basic models in accordance with the applicable test procedure and § 429.47, and determine the power loss for each of these basic models;

(iii) The predicted total power loss for each of these basic models, calculated by applying the AEDM pursuant to paragraph (d)(2)(i) of this section, must be within plus or minus five percent of the mean total power loss determined from the testing of that basic model pursuant to paragraph (d)(2)(ii) of this section; and

(iv) Calculate for each of these basic models the percentage that its power loss calculated pursuant to paragraph (d)(2)(i) of this section is of its power loss determined from testing pursuant to paragraph (d)(2)(ii) of this section, compute the average of these percentages, and that calculated average power loss, expressed as a percentage of the average power loss determined from testing, must be no less than 97 percent and no greater than 103 percent.

(3) Additional testing requirements. (i) A manufacturer must select basic models for testing in accordance with the following criteria:

(A) Two of the basic models must be among the five basic models with the highest unit volumes of production by the manufacturer in the prior year, or during the prior 12-calendar-month period beginning in 2003, 1 whichever is later;

1 When identifying these five basic models, any basic model that does not comply with Federal energy conservation standards for distribution transformers that may be in effect shall be excluded from consideration.

(B) No two basic models should have the same combination of power and voltage ratings; and

(C) At least one basic model should be single-phase and at least one should be three-phase.

(ii) In any instance where it is impossible for a manufacturer to select basic models for testing in accordance with all of these criteria, the criteria shall be given priority in the order in which they are listed. Within the limits imposed by the criteria, basic models shall be selected randomly.

(4) Subsequent verification of an AEDM. (i) Each manufacturer that has used an AEDM under this section shall have available for inspection by the Department of Energy records showing:

(A) The method or methods used;

(B) The mathematical model, the engineering or statistical analysis, computer simulation or modeling, and other analytic evaluation of performance data on which the AEDM is based;

(C) Complete test data, product information, and related information that the manufacturer has generated or acquired pursuant to paragraph (d)(4) of this section; and

(D) The calculations used to determine the efficiency and total power losses of each basic model to which the AEDM was applied.

(ii) If requested by the Department, the manufacturer must perform at least one of the following:

(A) Conduct simulations to predict the performance of particular basic models of distribution transformers specified by the Department;

(B) Provide analyses of previous simulations conducted by the manufacturer;

(C) Conduct sample testing of basic models selected by the Department; or

(D) Conduct a combination of these.

(e) Alternate Efficiency Determination Method (AEDM) for central air conditioners and heat pumps. This paragraph (e) sets forth the requirements for a manufacturer to use an AEDM to rate central air conditioners and heat pumps.

(1) Criteria an AEDM must satisfy. A manufacturer may not apply an AEDM to an individual model/combination to determine its represented values (EER2, SEER2, HSPF2, SCORE, EER, SHORE and/or PW,OFF) pursuant to this section unless authorized pursuant to § 429.16(d) and:

(i) The AEDM is derived from a mathematical model that estimates the energy efficiency or energy consumption characteristics of the individual model or combination (EER2, SEER2, HSPF2, EER, SCORE, SHORE and/or PW,OFF) as measured by the applicable DOE test procedure; and

(ii) The manufacturer has validated the AEDM in accordance with paragraph (e)(2) of this section.

(2) Validation of an AEDM. Before using an AEDM, the manufacturer must validate the AEDM's accuracy and reliability as follows:

(i) Follow paragraph (e)(2)(i)(A) of this section for requirements on minimum testing. Follow paragraph (e)(2)(i)(B) of this section for requirements on ensuring the accuracy and reliability of the AEDM.

(A) Minimum testing. The manufacturer must test each basic model as required under § 429.16(b)(2).

(B) Using the AEDM, calculate the energy use or efficiency for each of the tested individual models/combinations within each basic model. Compare the represented value based on testing and the AEDM energy use or efficiency output according to paragraph (e)(2)(ii) of this section. The manufacturer is responsible for ensuring the accuracy and reliability of the AEDM and that their representations are appropriate and the models being distributed in commerce meet the applicable standards, regardless of the amount of testing required in paragraphs (e)(2)(i)(A) and (e)(2)(i)(B) of this section.

(ii) Individual model/combination tolerances. This paragraph (e)(2)(ii) provides the tolerances applicable to individual models/combinations rated using an AEDM.

(A) The predicted represented values for each individual model/combination calculated by applying the AEDM may not be more than four percent greater (for measures of efficiency) or less (for measures of consumption) than the values determined from the corresponding test of the individual model/combination.

(B) The predicted energy efficiency or consumption for each individual model/combination calculated by applying the AEDM must meet or exceed the applicable federal energy conservation standard.

(iii) Additional test unit requirements. (A) Each AEDM must be supported by test data obtained from physical tests of current individual models/combinations; and

(B) Test results used to validate the AEDM must meet or exceed current, applicable Federal standards as specified in part 430 of this chapter; and

(C) Each test must have been performed in accordance with the applicable DOE test procedure with which compliance is required at the time the individual models/combinations used for validation are distributed in commerce.

(3) AEDM records retention requirements. If a manufacturer has used an AEDM to determine representative values pursuant to this section, the manufacturer must have available upon request for inspection by the Department records showing:

(i) The AEDM, including the mathematical model, the engineering or statistical analysis, and/or computer simulation or modeling that is the basis of the AEDM;

(ii) Product information, complete test data, AEDM calculations, and the statistical comparisons from the units tested that were used to validate the AEDM pursuant to paragraph (e)(2) of this section; and

(iii) Product information and AEDM calculations for each individual model/combination to which the AEDM has been applied.

(4) Additional AEDM requirements. If requested by the Department, the manufacturer must:

(i) Conduct simulations before representatives of the Department to predict the performance of particular individual models/combinations;

(ii) Provide analyses of previous simulations conducted by the manufacturer; and/or

(iii) Conduct certification testing of individual models or combinations selected by the Department.

(5) AEDM verification testing. DOE may use the test data for a given individual model/combination generated pursuant to § 429.104 to verify the represented value determined by an AEDM as long as the following process is followed:

(i) Selection of units. DOE will obtain one or more units for test from retail, if available. If units cannot be obtained from retail, DOE will request that a unit be provided by the manufacturer;

(ii) Lab requirements. DOE will conduct testing at an independent, third-party testing facility of its choosing. In cases where no third-party laboratory is capable of testing the equipment, testing may be conducted at a manufacturer's facility upon DOE's request.

(iii) Testing. At no time during verification testing may the lab and the manufacturer communicate without DOE authorization. If during test set-up or testing, the lab indicates to DOE that it needs additional information regarding a given individual model or combination in order to test in accordance with the applicable DOE test procedure, DOE may organize a meeting between DOE, the manufacturer and the lab to provide such information.

(iv) Failure to meet certified value. If an individual model/combination tests worse than its certified value (i.e., lower than the certified efficiency value or higher than the certified consumption value) by more than 5 percent, or the test results in cooling capacity that is lower than its certified cooling capacity, DOE will notify the manufacturer. DOE will provide the manufacturer with all documentation related to the test set up, test conditions, and test results for the unit. Within the timeframe allotted by DOE, the manufacturer may present any and all claims regarding testing validity.

(v) Tolerances. This paragraph specifies the tolerances DOE will permit when conducting verification testing.

(A) For consumption metrics, the result from a DOE verification test must be less than or equal to 1.05 multiplied by the certified represented value.

(B) For efficiency metrics, the result from a DOE verification test must be greater than or equal to 0.95 multiplied by the certified represented value.

(vi) Invalid represented value. If, following discussions with the manufacturer and a retest where applicable, DOE determines that the verification testing was conducted appropriately in accordance with the DOE test procedure, DOE will issue a determination that the represented values for the basic model are invalid. The manufacturer must conduct additional testing and re-rate and re-certify the individual models/combinations within the basic model that were rated using the AEDM based on all test data collected, including DOE's test data.

(vii) AEDM use. This paragraph (e)(5)(vii) specifies when a manufacturer's use of an AEDM may be restricted due to prior invalid represented values.

(A) If DOE has determined that a manufacturer made invalid represented values on individual models/combinations within two or more basic models rated using the manufacturer's AEDM within a 24 month period, the manufacturer must test the least efficient and most efficient individual model/combination within each basic model in addition to the individual model/combination specified in § 429.16(b)(2). The twenty-four month period begins with a DOE determination that a represented value is invalid through the process outlined above.

(B) If DOE has determined that a manufacturer made invalid represented values on more than four basic models rated using the manufacturer's AEDM within a 24-month period, the manufacturer may no longer use an AEDM.

(C) If a manufacturer has lost the privilege of using an AEDM, the manufacturer may regain the ability to use an AEDM by:

(1) Investigating and identifying cause(s) for failures;

(2) Taking corrective action to address cause(s);

(3) Performing six new tests per basic model, a minimum of two of which must be performed by an independent, third-party laboratory from units obtained from retail to validate the AEDM; and

(4) Obtaining DOE authorization to resume use of an AEDM.

(f) Alternative efficiency determination method (AEDM) for walk-in refrigeration systems and doors— (1) Criteria an AEDM must satisfy. A manufacturer may not apply an AEDM to a basic model to determine its efficiency pursuant to this section unless:

(i) The AEDM is derived from a mathematical model that estimates the energy efficiency or energy consumption characteristics of the basic model as measured by the applicable DOE test procedure;

(ii) The AEDM is based on engineering or statistical analysis, computer simulation or modeling, or other analytical evaluation of performance data; and

(iii) The manufacturer has validated the AEDM, in accordance with paragraph (f)(2) of this section.

(2) Validation of an AEDM. Before using an AEDM, the manufacturer must validate the AEDM's accuracy and reliability as follows:

(i) The manufacturer must select at least the minimum number of basic models for each validation class specified in paragraph (f)(2)(iv) of this section to which the particular AEDM applies. Test a single unit of each basic model in accordance with paragraph (f)(2)(iii) of this section. Using the AEDM, calculate the energy use or energy efficiency for each of the selected basic models. Compare the results from the single unit test and the AEDM output according to paragraph (f)(2)(ii) of this section. The manufacturer is responsible for ensuring the accuracy and repeatability of the AEDM.

(ii) Individual model tolerances.

(A) For refrigeration systems, which are subject to an energy efficiency metric, the predicted efficiency for each model calculated by applying the AEDM may not be more than five percent greater than the efficiency determined from the corresponding test of the model.

(B) For doors, which are subject to an energy consumption metric the predicted daily energy consumption for each model calculated by applying the AEDM may not be more than five percent less than the daily energy consumption determined from the corresponding test of the model.

(C) The predicted energy efficiency or energy consumption for each model calculated by applying the AEDM must meet or exceed the applicable federal energy conservation standard.

(iii) Additional test unit requirements. (A) Each AEDM must be supported by test data obtained from physical tests of current models; and

(B) Test results used to validate the AEDM must meet or exceed current, applicable Federal standards as specified in part 431 of this chapter;

(C) Each test must have been performed in accordance with the applicable DOE test procedure with which compliance is required at the time the basic model is distributed in commerce; and

(D) For rating WICF refrigeration system components, an AEDM may not simulate or model portions of the system that are not required to be tested by the DOE test procedure. That is, if the test results used to validate the AEDM are for either a unit cooler only or a condensing unit only, the AEDM must estimate the system rating using the nominal values specified in the DOE test procedure for the other part of the refrigeration system.

(E) For rating doors, an AEDM may not simulate or model components of the door that are not required to be tested by the DOE test procedure. That is, if the test results used to validate the AEDM are for the U-factor test of the door, the AEDM must estimate the daily energy consumption, specifically the conduction thermal load, and the direct and indirect electrical energy consumption, using the nominal values and calculation procedure specified in the DOE test procedure.

(iv) WICF validation classes—(A) Doors.

Table 4 to Paragraph (f)(2)(iv)(A)

Validation class | Minimum number of distinct models that must be tested

Display Doors, Medium Temperature | 2 Basic Models.

Display Doors, Low Temperature | 2 Basic Models.

Non-display Doors, Medium Temperature | 2 Basic Models.

Non-display Doors, Low Temperature | 2 Basic Models.

(B) Refrigeration systems. (1) For representations made prior to the compliance date of revised energy conservation standards for walk-in cooler and walk-in freezer refrigeration systems, use the following validation classes.

Table 5 to Paragraph (f)(2)(iv)(B)(1)

Validation class | Minimum number of distinct models that must be tested

Dedicated Condensing, Medium Temperature, Matched Pair Indoor System | 2 Basic Models.

Dedicated Condensing, Medium Temperature, Matched Pair Outdoor System 1 | 2 Basic Models.

Dedicated Condensing, Low Temperature, Matched Pair Indoor System | 2 Basic Models.

Dedicated Condensing, Low Temperature, Matched Pair Outdoor System 1 | 2 Basic Models.

Unit Cooler, High-temperature | 2 Basic Models.

Unit Cooler, Medium Temperature | 2 Basic Models.

Unit Cooler, Low Temperature | 2 Basic Models.

Medium Temperature, Indoor Condensing Unit | 2 Basic Models.

Medium Temperature, Outdoor Condensing Unit 1 | 2 Basic Models.

Low Temperature, Indoor Condensing Unit | 2 Basic Models.

Low Temperature, Outdoor Condensing Unit 1 | 2 Basic Models.

1 AEDMs validated for an outdoor class by testing only outdoor models of that class may be used to determine representative values for the corresponding indoor class, and additional validation testing is not required. AEDMs validated only for a given indoor class by testing indoor models or a mix of indoor and outdoor models may not be used to determine representative values for the corresponding outdoor class.

(2) For representations made on or after the compliance date of revised energy conservation standards for walk-in cooler and walk-in freezer refrigeration systems, use the following validation classes.

Table 6 to Paragraph (f)(2)(iv)(B)(2)

Validation class | Minimum number of distinct models that must be tested

Dedicated Condensing Unit, Medium Temperature, Indoor System | 2 Basic Models.