§ 516.10 General purpose and scope.

(a) The purpose of this rule is to implement section 402 of Pub. L. 95-620, the Powerplant and Industrial Fuel Use Act of 1978 (the Act). The objective of section 402 of the Act is to eliminate the nonessential use of natural gas for outdoor lighting and to conserve such gas for the benefit of present and future generations.

(b) The rule consists of four subparts. Subpart A consists of this section, entitled "General Purpose and Scope," and § 516.11, "Definitions."

(c) Subpart B contains the prohibitions on the installation of natural gas outdoor lighting fixtures and the sale and direct industrial use of natural gas for outdoor lighting. Section 516.20 prohibits the installation of natural gas outdoor lighting fixtures. Sections 516.21 and 516.22 prohibit local distribution companies from providing natural gas to residential, commercial, and industrial customers for use in outdoor lighting as well as prohibiting the use of natural gas by direct industrial customers for outdoor lighting.

(d) Subpart C delegates to the appropriate State regulatory authorities the responsibility and authority of the Secretary of DOE with regard to natural gas outdoor lighting. The specific authorities delegated are set forth in § 516.30. Section 516.31 sets forth the requirements for annual reports which the appropriate State regulatory authorities are required to submit to ERA. Section 516.32 provides for rescission, by ERA, of the delegation of authority as it applies to any particular State.

(e) Subpart D sets forth guidance to be followed by the appropriate State regulatory authorities in granting or denying requests for exemption in the absence of the exercise of authority by the State in promulgating its own criteria. Criteria for granting or denying exemptions are provided for each of the categories of exemption established by the Act: Lighting of historical significance (§ 516.41); memorial lighting (§ 516.42); commercial lighting of historical significance (§ 516.43); safety of persons and property (§ 516.44); time to install substitute lighting (§ 516.45); substantial expense (§ 516.46); public interest (§ 516.47).

§ 516.11 Definitions.

Unless otherwise expressly provided, for the purposes of this rule:

(a) The term "direct industrial customer" means an industrial user of natural gas who obtains the natural gas under a contract with a natural gas pipeline company, or any agent thereof.

(b) The term "local distribution company" means any person engaged in the business of interstate or intrastate transportation and local distribution of natural gas for ultimate consumption.

(c) The term "natural gas" means any fuel consisting in whole or in part of natural gas, liquid petroleum gas, or synthetic gas derived from petroleum or natural gas liquids.

(d) The term "natural gas outdoor lighting fixture" means a complete stationary natural gas outdoor lighting unit.

(e) The term "pipeline company" means any person engaged in the busi

ness of interstate or intrastate transportation of natural gas by pipeline other than as a local distribution company.

(f) The term "residence" means any single or multiple family dwelling unit, including commonly held areas associated with such unit and including multiple family dwelling units which may be classified by the local distribution company as "commercial" customers.

(g) Unless otherwise designated by ERA, upon recommendation of the Governor, the term "State regulatory authority" means that agency of any of the 50 States, the District of Columbia, Puerto Rico, or any territory or possession of the United States, which has primary or exclusive authority to fix, modify or approve rates for the sale of natural gas by local distribution companies within that State, except that:

(1) In the case of a local distribution company which is publicly-owned, and not subject to State rate regulation, references in this part to "State regulatory authority" or "State" shall be treated as references to such company; and

(2) In the case of any direct industrial customer or any local distribution company which is privately-owned, and not subject to State rate regulation, the Governor shall designate the responsible State regulatory authority.

(h) The term "substitute lighting" means outdoor lighting which does not directly burn natural gas.

[44 FR 27607, May 10, 1979, as amended at 45 FR 35208, May 23, 1980]

Subpart B-Prohibitions

§ 516.20 General prohibition on installation of natural gas outdoor lighting fixtures.

(a) Prohibition. No local distribution company or direct industrial customer shall install any natural gas outdoor lighting fixture.

(b) Effective date. The prohibition stated in paragraph (a) of this section shall be effective beginning on November 9, 1978.

§ 516.21 General prohibition on sale of natural gas for use in outdoor lighting. (a) Prohibition. No local distribution company shall supply natural gas for use in outdoor lighting.

(b) Effective dates. (1) In the case of any residential, commercial, or industrial customer, the prohibition stated in paragraph (a) of this section shall be effective on May 8, 1979, unless a later effective date is applicable under paragraphs (a) (2), (3), or (4) of this section.

(2) In the case of any industrial or commercial structure to which natural gas was being supplied by the local distribution company for outdoor lighting use on November 9, 1978, the prohibition stated in paragraph (a) of this section shall be effective on November 5, 1979.

(3) In the case of any municipal outdoor lighting fixture to which natural gas was being supplied by the local distribution company for outdoor lighting use on November 9, 1978, the prohibition stated in paragraph (a) of this section shall be effective January 1, 1982.

(4) In the case of any outdoor lighting fixture used in connection with a residence to which natural gas was being supplied by the local distribution company for outdoor lighting use on November 9, 1978, the prohibition stated in paragraph (a) of this section shall be effective January 1, 1982.

§ 516.22 Prohibition on use of natural gas by direct industrial customers for outdoor lighting.

(a) Prohibition. No direct industrial customer shall use natural gas for outdoor lighting.

(b) Effective dates. (1) In the case of a direct industrial customer who was using natural gas for outdoor lighting on November 9, 1978, the prohibition stated in paragraph (a) of this section shall be effective on November 5, 1979.

(2) In the case of a direct industrial customer using a natural gas outdoor lighting fixture(s) that:

(i) Was installed prior to the ban on the installation of such fixture(s) set out in § 516.20 of this rule; and

Pursuant to section 402(e) of the Act, ERA delegates to the appropriate State regulatory authorities, effective on the date this rule is issued as a final rule, the full responsibility and authority of the Secretary of DOE with regard to natural gas outdoor lighting. The authorities and responsibilities delegated by this rule to the appropriate State regulatory authorities are those enumerated in paragraphs (a) through (g) of this section. The appropriate State regulatory authorities should normally consult with the State Historic Preservation Officers for their respective States (as recognized by the U.S. Department of Interior, Heritage Conservation and Recreation Service) when fulfilling their responsibilities and authorities as set forth in this section particularly when decisions are made or options considered relating to historic preservation.

(a) Authority to promulgate regulations. The authority to promulgate any regulations necessary to carry out the purposes of section 402 of the Act is delegated to the appropriate State regulatory authorities.

(b) Authority to issue orders. The authority to issue orders exempting certain natural gas outdoor lighting fixtures from the prohibitions set forth in Subpart B of this rule is delegated to the appropriate State regulatory authorities. Such exemption orders may be issued on the basis of:

(1) Lighting of historical significance;

(2) Memorial lighting;

(3) Commercial lighting of historical significance;

(4) Lighting which is necessary to protect the safety of persons and property;

(5) The necessity to permit the installation of substitute lighting where no adequate outdoor lighting (other

than that using natural gas) existed on November 9, 1978;

(6) Substantial expense which would not be cost justified; or

(7) The public interest and consistency with the purposes of the Act.

(c) Authority to establish exemption criteria. The authority to establish criteria to be used in making any determinations to issue any orders relating to exemptions from the prohibitions set forth in Subpart B of this rule is delegated to the appropriate State regulatory authorities.

or

(d) Authority to establish exemption procedures. The authority to establish procedures for the acceptance, processing, consideration, and grant denial of applications and requests for exemptions from the prohibitions set forth in Subpart B of this rule is delegated to the appropriate State regulatory authorities.

(e) Authority to establish enforcement mechanisms. The authority to establish enforcement policies, criteria and procedures with respect to the prohibitions set forth in Subpart B of this rule is delegated to the appropriate State regulatory authorities.

(f) Authority to enforce prohibitions and assess civil penalties. The authority to enforce the prohibitions set forth in Subpart B of the rule, including the authority to assess civil penalties for noncompliance with such prohibitions pursuant to section 723(c) of the Act, is delegated to the appropriate State regulatory authorities.

(g) Authority to investigate. The authority to initiate investigations and compel the submission of data or relevant documents is delegated to the appropriate State regulatory authorities. § 516.31

Annual reports.

(a) General requirements. Pursuant to this delegation, the appropriate State regulatory authority shall submit to ERA two copies of the annual report as specified in this section. The annual report shall be submitted to: Economic Regulatory Administration, U.S. Department of Energy, Office of Utility Systems, 2000 M Street, NW., Washington, D.C. 20461, Attention: Gas Light Prohibitions.

(b) Schedule for submission. The appropriate State regulatory authority shall submit annually to ERA, by January 1 of each year, beginning no later than January 1, 1980, a report as specified in this section, except as provided for in paragraph (d) of this section. The last annual report shall be submitted by January 1, 1984. The appropriate State regulatory authority shall submit the annual report either separately or together with the "PURPA Annual Report on Gas Utilities" required to be submitted to DOE by November 1 of each year pursuant to requirements established by section 309 of the Public Utility Regulatory Policies Act of 1978, 92 Stat. 3117 (Pub. L. 94-617).

(c) Contents of report. (1) The first annual report shall contain all of the elements specified in paragraph (2) of this paragraph (c). Subsequent reports shall contain only those elements or portions of elements to which there were significant changes since the last annual report was submitted.

(2) The appropriate State regulatory authority shall include in their report the following elements:

(i) A list of all local distribution companies and all direct industrial customers who use natural gas for outdoor lighting covered by the report;

(ii) Current estimated annual naturai gas consumption for the local distribution companies and all direct industrial customers covered by the report attributable to outdoor lighting;

(iii) Copies of all State statutes, rules and regulations prohibiting natural gas lighting, enforcing the prohibitions, and granting or denying exemptions to the prohibitions;

(iv) A summary of exemption requests granted or denied, by category of exemption, and including the rationale for such grant or denial; and

(v) A description of the State's current or projected efforts to enforce the prohibitions set forth in Subpart B of this rule.

(d) Optional certification of submission of final report. An appropriate State regulatory authority may submit to ERA a certification stating that, to the best knowledge of such authority, further annual reports are un

(a) Scope. A Federal, State or local government agency, or an appropriate historical association, may petition the appropriate State regulatory authority for an exemption from the prohibitions set forth in §§ 516.20 and 516.21 of this rule for any property on the basis of historical significance. In the case of a petition for an exemption from the prohibition set forth in § 516.20 of this rule (General prohibition on installation of natural gas outdoor lighting fixtures), an exemption shall be granted only for replacement of a natural gas outdoor lighting fixture(s) that was installed prior to November 9, 1978. Such replacement shall include:

(1) Replacement of an extant original or reproduction fixture; or

(2) Installation of an original or reproduction fixture to replace a fixture which existed during the life of the specified historic property.

(b) Criteria. The criteria for an exemption on the basis of historic significance shall be satisfied upon certification, by the petitioner, that the specifically identified natural gas outdoor lighting fixture(s) directly contributes to the quality of significance of the specifically identified historic property or district, as applicable; and upon a finding that the specifically identified historic property:

(1) Is listed on the National Register of Historic Places maintained by the Heritage Conservation and Recreation Service, Department of Interior, or is officially determined eligible for listing by the Secretary of Interior, pursuant to the National Historic Preservation Act (16 U.S.C. 470 as amended), applicable regulations (36 CFR Parts 60 and 63), and Executive Order 11593;

or

(2) Is in a district whose State or local statutes are certified as providing adequate protection of historic places by the Secretary of the Department of Interior, pursuant to the Tax Reform Act of 1976 (26 U.S.C. 191, 280B) and applicable regulations.

(c) Stays. An exemption request shall result in a stay from the prohibitions set forth in Subpart B of this rule if:

(1) The petitioner has certified that the specifically identified natural gas outdoor lighting fixture(s) directly contributes to the quality of significance of the specifically identified historic property or district, as applicable; and

(2) An application is pending, before the Department of Interior, for inclusion in one of the categories specified in paragraph (b) (1) or (2) of this section.

§ 516.42 Memorial lighting.

(a) Scope. A Federal, State or local government agency, or an appropriate historical association, may petition the appropriate State regulatory authority for an exemption from the prohibitions set forth in §§ 516.20 and 516.21 of this rule on the basis of memorial lighting. In the case of a petition for

an exemption from the prohibition set forth in § 516.20 of this rule (General prohibition on installation of natural gas for outdoor lighting fixtures), an exemption shall be granted only for replacement of a natural gas outdoor lighting fixture(s) that was installed prior to November 9, 1978. Such replacement shall include replacement of an extant fixture only.

(b) Criteria. The criteria for an exemption on the basis of memorial lighting shall be satisfied upon a finding that the specifically identified outdoor lighting fixture(s) directly contributes to preserving the memory of a deceased person or persons.

§ 516.43 Commercial lighting of a traditional nature.

(a) Scope. A person using natural gas for outdoor lighting which is used for commercial purposes and which is of a traditional nature and conforms with the cultural or architectural style of the area in which it is located, may petition for an exemption from the prohibitions set forth in §§ 516.20 and 516.21 of this rule. In the case of a petition for an exemption from the general prohibition on installation of natural gas outdoor lighting fixtures (§ 516.20), an exemption shall be granted only to replace a natural gas outdoor lighting fixture(s) which had been installed prior to November 9, 1978. Such replacement shall include:

(1) Replacement of an existing natural gas light; or

(2) Replacement of a natural gas light which does not presently exist but which existed at some previous time upon the specified property.

(b) Criteria. The criteria for an exemption on the basis of commercial lighting of a traditional nature shall be satisfied upon certification by the petitioner that the specifically identified natural gas outdoor lighting fixture(s), which is used for commercial purposes and which is of a traditional nature and conforms with the cultural or architectural style of the area in which such light is located, presently exists or will be used to replace a natural gas lighting fixture of a traditional nature.