CHAPTER 41 – STATE ENERGY OFFICE

 

SUBCHAPTER 41A - ORGANIZATION

 

01 NCAC 41A .0101          purpose

(a)  The Energy Division administers the U.S. Department of Energy's regulations as they relate to the State of North Carolina.

(b)  It develops and coordinates research and studies to provide facts upon which to base energy‑related policy recommendations, provides early warning of impending energy shortages and prepares plans for such contingencies.

(c)  It initiates energy‑related policy recommendations in cooperation with other state agencies and cooperates with federal, regional and neighboring state authorities on energy matters of mutual concern.

(d)  It coordinates state government agency energy conservation measures and, as appropriate, effects coordination between state government and the private sectors in promoting energy conservation.

(e)  The Energy Division provides staff support to the Energy Policy Council.

 

History Note:        Filed as an Emergency Regulation Eff. March 6, 1978, for a period of 120 days to expire on

July 3, 1978;

Authority G.S. 143B‑429; 143B‑430; 143B‑431; 143B‑449;

Made Permanent Eff. July 3, 1978;

Transferred from 04 NCAC 12C .0102 Eff. May 15, 2007.

01 NCAC 41A .0102          DEFINITIONS

The following definitions apply to this Chapter:

(1)           "End‑user" means any firm which is an ultimate consumer of an allocated product other than a wholesale purchaser‑consumer.

(2)           "Wholesale purchaser‑consumer" means any firm that is an ultimate consumer and who:

(a)           is classified agricultural production and purchases more than 20,000 gallons of allocated product per year;

(b)           is classified multi‑family residence and purchases more than 50,000 gallons of allocated product per year; or

(c)           purchases more than 84,000 of allocated product per year.

(3)           "Wholesale purchaser‑reseller" means any firm which purchases, receives through transfer, or otherwise obtains (as by consignment) an allocated product and resells or otherwise transfers it to other purchasers without substantially changing its form.

(4)           "Prime supplier" is a supplier or producer who makes the first sale of any allocated product which is subject to state set‑aside into the state distribution system for consumption within the state.

(5)           "State set‑aside" is that amount of an allocated product made available from the total supply of a prime supplier for utilization by the state to resolve emergencies and hardships due to shortages.

(6)           "Base Period" shall be the 12 month period immediately preceding the months in which an applicant applies for state set‑aside product, or such other time as may be determined by the Energy Division in the event that the 12 month base period is not applicable.

(7)           "Emergency" is a situation or set of circumstances which require immediate remedial action.

(8)           "Hardship" exists when a wholesale purchaser‑consumer or end‑user is adversely affected by his inability to obtain a sufficient quantity of an allocated product.

(9)           "Energy crisis" will exist upon a finding by the Governor with the advice and consent of the Legislature, that there is an actual or impending shortage or curtailment of usable, necessary energy resources to the extent that the maintenance of necessary services; and protection of public health, safety and welfare; or the maintenance of a sound basic state economy is imperiled, as defined and authorized by G.S. 113B‑20.

(10)         "Market area" means a one mile radius around a retail sales outlet selling gasoline and diesel fuel.  [This definition may be used as a factor for determining an applicant's eligibility for state set‑aside fuel if no other retail sales outlet is within this radius to serve customers.]

(11)         "Customer/supplier relationship" will exist between an end‑user, wholesale purchaser‑consumer or wholesale purchaser‑reseller and a supplier after a business relationship has existed for a 30‑day period.

(12)         "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, federal government, state and local governments and any other instrumentalities.

(13)         "Agricultural production" means all activities classified under the industry code numbers specified in Subparagraph (a) of this Paragraph, as set forth in the Standard Industrial Classification Manual, latest edition, except those industry code numbers listed in Subparagraph (b) of this Paragraph, which are excluded:

(a)           Activities:

(i)            All industry code numbers included in Division A, Agriculture, Forestry and Fishing, except as specified in Subparagraph (b) of this Paragraph;

(ii)           All industry code numbers included in Major Group 20 and 21, Food and Kindred Products, of Division D, Manufacturing, including grain and seed drying, except as specified in Subparagraph (b) of this Paragraph; and

(iii)          All the following other industry code numbers:

(A)          1474 Potash, Soda and Borate Minerals (Potash mining only);

(B)          1475 Phosphate Rock;

(C)          2141 Tobacco Stemming and Drying;

(D)          2411 Logging Camps and Logging Contractors;

(E)           2819 Industrial Inorganic Chemicals not elsewhere classified (dicalcium phosphate only);

(F)           2873 Nitrogenous Fertilizers;

(G)          2874 Phosphatic Fertilizers;

(H)          2875 Fertilizers, Mixing Only;

(I)            2879 Pesticides and Agricultural Chemicals not elsewhere classified;

(J)            4212 Local Trucking Without Storage (farm to market hauling and log trucking only);

(K)          4971 Irrigation Systems (for farm use; and

(L)           5462 Retail Bakeries, Baking and Selling.

(b)           Activities excluded:

(i)            All the following industry code numbers, otherwise listed under Division A, Agriculture, Forestry and Fishing, are excluded from the definition:

(A)          0181 Ornamental Floriculture and Nursery Products;

(B)          0271 Fur‑Bearing Animals and Rabbits (except rabbit farms);

(C)          0272 Horses and Other Equines;

(D)          0279 Animal Specialties not elsewhere classified (except apiaries, honey production and bee, catfish, fish, frog and trout farms which are included in the definition);

(E)           0742 Veterinary Services for Animal Specialties;

(F)           0752 Animal Specialty Services;

(G)          0781 Landscape Counseling and Planning;

(H)          0782 Lawn and Garden Services;

(I)            0783 Ornamental Shrub and Tree Services; and

(J)            0849 Gathering of Forest Products, not elsewhere classified.

(ii)           All the following industry code numbers, otherwise listed under Major Groups 20, Food and Kindred Products, of Division D, Manufacturing, are excluded from the definition;

(A)          2047 Dog, Cat and Other Pet Food;

(B)          2067 Chewing Gum;

(C)          2084 Wines, Brandy, and Brandy Spirits; and

(D)          2085 Distilled, Rectified and Blended Liquors.

(14)         "Emergency Services" means law enforcement, fire fighting and emergency medical/ambulance services.

(15)         "Energy Production" means the exploration, drilling, mining, refining, processing, production and distribution of coal, natural gas, geothermal energy, petroleum products, shale oil, nuclear fuels and electrical energy.  It also includes the construction of facilities and equipment used in energy production, such as pipelines, mining equipment and similar capital goods.

(16)         "Sanitation Services" means the collection and disposal of solid wastes, whether by public or private entities, and the maintenance, operation and repair of liquid purification and waste facilities.  Sanitation services also includes the provision of water supply services by public utilities, whether privately or publicly owned or operated.

(17)         "Telecommunication Services" means the emergency or essential installation, repair, operation and maintenance of voice, data, telegraph, video and similar communications services to the public by a communications common carrier, excluding sales and administrative activities.

(18)         "Passenger Transportation Services" means publicly and privately owned air and surface operations for transporting members of the general public, bus transportation of pupils to and from school (but not including elective extra‑curricular activities), and vanpool operations, and includes facilities necessary to support such operations.

(19)         "Truck" means a motor vehicle for transportation with a gross weight in excess of 20,000 pounds.

(20)         "Health Service Facilities" means hospitals, psychiatric facility, rehabilitation facility, long‑term care facility, kidney disease treatment center, intermediate care facility for mentally retarded, home health agency, chemical dependence treatment facility and ambulatory surgical facility.

 

History Note:        Filed as an Emergency Regulation Eff. March 6, 1978, for a period of 120 days to expire on

July 3, 1978;

Authority G.S. 143B‑429; 143B‑430; 143B‑431; 143B‑449;

Made Permanent Eff. July 3, 1978;

Amended Eff. April 1, 1991; May 15, 1979;

Transferred from 04 NCAC 12C .0104 Eff. May 15, 2007.

 

01 NCAC 41A .0103          SCOPE AND PURPOSE OF STATE SET‑ASIDE

(a)  Control of certain products, may from time‑to‑time be designated by the state.  The products are to be allocated by the state for the purpose of alleviating hardships and/or emergencies within the state. Issuance of the state set‑aside, based upon proof of hardship and/or emergency will follow the priority rules and any special rule as set forth in this Chapter or issued by the Energy Division.  The application must clearly set forth the consequences which will result from one or more end‑users not being able to obtain sufficient product. The following are examples of consequences which could result from one or more end‑users not being able to obtain sufficient products.  Such examples of consequence as filed by the applicant may include, but are not limited to:

(1)           plant closings,

(2)           employee lay‑offs,

(3)           inability to harvest crops, or

(4)           curtailments of vital community services.

(b)  The state set‑aside may be used for:

(1)           end‑users and wholesale purchaser‑consumers who are unable to obtain adequate products and thereby sustain a hardship or emergency as defined in this Chapter,

(2)           wholesale purchaser‑resellers seeking an assignment to meet an emergency or hardship requirement on behalf of end‑users and wholesale purchaser‑consumers.

(c)  Allocations granted under the state set‑aside program must be used to supply wholesale purchaser‑consumers and end‑users described in the application for state set‑aside.

(d)  Who May Apply for State Set‑Aside.  Any wholesale‑purchaser consumer or wholesale‑purchaser reseller may apply for, or on behalf of, end‑users who are eligible under Paragraphs (b)(1) and (2) of this Rule.

(e)  First priority for set‑aside shall go to wholesale purchaser‑consumers and end‑users involved in the following activities (order of priority to be determined by the Energy Division after review of the circumstances then in effect):

(1)           agricultural production;

(2)           aviation ground support vehicles and equipment;

(3)           cargo, freight and mail hauling by truck and mail carries;

(4)           emergency services;

(5)           energy production;

(6)           health care services;

(7)           passenger transportation services;

(8)           sanitation services;

(9)           telecommunication services.

(f)  What Must Be Filed for State Set‑Aside.  All applications must be filed on a Form NC‑ED‑100, "Application to State for Exceptional Hardship Assistance."  Any information submitted on the above‑listed form which the applicant desires to be treated as confidential must be designated as such on the form and a second form (copy) must be filed deleting the information considered confidential by the applicant.

(g)  Where to File an Application for State Set‑Aside:

(1)           All applications [except those listed in Subparagraph (g) (2) of this Rule], shall be filed with the local County Emergency Management Coordinator and are processed through the North Carolina Department of Economic and Community Development, Energy Division, P.O. Box 25249, Raleigh, North Carolina  27611.

(2)           In the event the applicant's county of domicile does not have a County Emergency Management Coordinator assigned, applications may be filed directly with the Energy Division.  The Energy Division may, from time‑to‑time, designate other applicants, such as fire, police, rescue, and other essential government provided services, which will file applications for state set‑aside product directly with the Energy Division.

(h)  Request for Confidential Treatment

(1)           If any person filing a document with the local County Emergency Management Coordinator or the Energy Division claims that some or all the information contained in the document is exempt from the mandatory public disclosure requirement of the Freedom of Information Act [5 U.S.C. 552 (1970)], or is otherwise exempt by law from public disclosure, and if such person requests the local County Emergency Management Coordinator and the Energy Division 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 Energy Division may assume that there is no objection to public disclosure of the document in its entirety.

(2)           The Energy Division retains the right to make its own determination with regard to any claim of confidentiality.  Should the Energy Division deny a claim to confidentiality, the applicant may require the return of all copies of the disputed document(s) with notification to the applicant that the withdrawal of necessary data from consideration may tend to prejudice his application pending before the Energy Division.

(i)            Limitations on Filing an Application for State Set‑Aside.  Applications must be filed within the month the hardship exists and should be filed with the local County Emergency Management Coordinator not later than the 15th day of the month for which set‑aside product is requested.  The State Emergency Management System will ensure that applications are received by the Energy Division not later than ten calendar days before the end of the month.  In cases where additional information is requested, this information must be received by the local County Emergency Management Coordinator and forwarded to the Energy Division prior to five calendar days before the end of the month.  In cases of disapproval, the applicant will be notified within ten days as to why his application was not approved.

(j)  Release of set‑aside product.  The Energy Division, upon determining to its satisfaction that there will be little or no need for any set‑aside product not allocated, may release the remainder to the suppliers for distribution through their normal North Carolina distribution channels.

(k)  Supplier's Responsibilities:

(1)           Each prime supplier shall designate a representative to act for and in behalf of the prime supplier with respect to state set‑aside assignments.  The Energy Division may, to the maximum extent possible, consult with the prime supplier's representative prior to issuing any authorizing documents affecting the state set‑aside volumes to be provided by the supplier.

(2)           Suppliers shall provide the assigned amount of an allocated product to an applicant when presented with an authorizing document.  The authorizing document shall entitle the applicant to receive product from any convenient local distributor of the prime supplier from which the state set‑aside assignment has been made.

All prime suppliers shall supply products from their state set‑aside volume each month, as directed by the Energy Division, not to exceed the total state set‑aside volume for each product for that month.  That portion of a prime supplier's state set‑aside volume for a particular month which is not allocated by the Energy Division during that month, or which is not subject to an authorizing document issued no later than the last day of that month, shall become a part of the prime supplier's total supply for the subsequent month and shall be distributed according to the allocation procedure set forth in the allocation regulations.  The Energy Division may designate certain geographical areas within the state as suffering from an intra‑state supply imbalance.  When this occurs the Energy Division may order some, or all, of the prime suppliers servicing the geographical areas to release part, or all, of their set‑aside volume through their normal distribution systems to increase the fuel supply of their customers.  Orders issued pursuant to the set‑aside program shall be in writing and effective immediately upon presentation to the prime supplier's designated state representative.  Such order shall represent a call on the prime supplier's set‑aside volumes for the month of issuance irrespective of the fact that delivery cannot be made until the following month.

(l)  Procedures for Appeal:

(1)           Whenever the rights, duties, or privileges of the applicant or other substantially affected persons are being determined by the administration of the state set‑aside, within the Energy Division, through the granting or denial of a hardship application, such person(s) may, within ten days of service of the order, file a written request for an appointment with the Director of the Energy Division.  Such request(s) must be sent to the Director, Energy Division, North Carolina Department of Economic and Community Development, 430 N. Salisbury St., Raleigh, North Carolina 27611.

(2)           At the meeting, the aggrieved party may informally review the application and have answered questions concerning the application as may be permitted without violating a confidentiality claim.

(3)           The Director of the Energy Division shall have five working days from the date of the meeting to arrive at a decision.

(4)           All appeals from the decision of the Director of the Energy Division rest with the Secretary of the Department of Economic and Community Development or his designee as provided for under Chapter 1 of this Title.

(5)           At the time of a final decision by the Departmental secretary, the Departmental appeals procedures will have been deemed exhausted.  Any further appeals shall be made by petition to the Office of Administrative Hearings.

(6)           Any person who is aggrieved by the final decision in a contested case, and who has exhausted all administrative remedies may petition either the Superior Court of Wake County or the Superior Court of the county where the person resides.

(7)           Nothing in this Rule shall preclude an application from reapplying for an allocation in lieu of pursuing the appeals process.

 

History Note:        Filed as an Emergency Regulation Eff. March 6, 1978, for a period of 120 days to expire on

July 3, 1978;

Authority G.S. 143B‑429; 143B‑430; 143B‑431; 143B‑449;

Made Permanent Eff. July 3, 1978;

Amended Eff. May 1, 1991; May 15, 1979;

Transferred from 04 NCAC 12C .0106 Eff. May 15, 2007.