1. (a) Opt-out customers.

   1. (1) An Arkansas nonresidential (NR) customer of an electric or natural gas public utility that is classified within sectors 31 through 33 of the North American Industry Classification System as it existed on January 1, 2013, or a state-supported institution of higher education may provide notice by mail or electronic mail to the Arkansas Public Service Commission on or before September 15 of any year of its decision to opt out of utility-sponsored energy conservation programs and measures and direct its own energy conservation programs and measures if the NR customer satisfies the criteria set forth in Acts 2013, No. 253, as amended, codified as Arkansas Code § 23-3-405(c) – (e).
   2. (2) The Arkansas Public Service Commission will provide and update as necessary instructions and forms on its official website to provide guidance to qualifying NR customers that desire to opt out of utility-sponsored energy conservation programs and measures under Arkansas Code § 23-3-405(c) – (e).
   3. (3) The remainder of this section does not apply to customers providing notice to opt out in accordance with Acts 2013, No. 253, as amended.

2. (b) Self-direct customers.

   1. (1) An Arkansas NR customer of an electric or natural gas public utility that is not eligible to opt out under subsection (a) of this section that meets the eligibility requirements of subsection (m) of this section at a single metered location or subsection (n) of this section at multiple metered locations within a single utility’s service territory may request approval from the Arkansas Public Service Commission for a Certificate of Exemption allowing the customer to:

      1. (A) Opt out of participating in utility-provided energy efficiency (EE) programs; and
      2. (B) Participate instead in a Self-Directed EE Option (SD Option).

   2. (2) To be approved for a certificate by the Arkansas Public Service Commission, an eligible customer must successfully demonstrate that it:

      1. (A) Has implemented or invested in a measure or measures within ten (10) years prior to the date the customer files its request for a certificate with the Arkansas Public Service Commission;
      2. (B) Will implement or invest in a measure or measures within the duration of the applicable public utility’s EE plan approved by the Arkansas Public Service Commission pursuant to Arkansas Code § 23-3-405; or
      3. (C) Has exhausted its opportunity to conduct further meaningful cost-effective EE programs and to participate in, or to realize benefits through participation in, its utility’s EE programs.

3. (c)

   1. (1) The request for a certificate shall be filed with the Arkansas Public Service Commission no later than September 15 of any year in a customer-specific SD docket for verification and approval by the Arkansas Public Service Commission.
   2. (2) All customer and party filings related to a request for a certificate, including requests to extend the initial filing deadline, should be made in a customer-specific SD docket.
   3. (3) Requests to renew a certificate should be made in the same docket as the original request.

   4. (4) The request shall state and shall include adequate information for the Arkansas Public Service Commission to verify that the NR customer has:

      1. (A) Implemented or invested in a measure or measures, excluding any measures in which the NR customer has previously received an incentive from the utility as part of a utility-sponsored program, or will implement or invest in a new measure or measures designed to provide EE savings at the customer’s facility in an amount equal to or greater than the most current EE goals or standards established by the Arkansas Public Service Commission for the applicable program years and utility; or
      2. (B)

4. (i) Exhausted its opportunity to conduct further meaningful cost-effective EE programs and to participate in or to realize meaningful benefits through participation in its utility-provided EE programs.

   1. (ii) If the customer claims that it has exhausted its opportunity to participate in or to realize meaningful benefits through participation in its utility-funded EE programs, then the public utility at issue may be made a party to the proceeding by order of the Arkansas Public Service Commission.

   2. (5)

      1. (A) An NR customer that participates in a utility’s EE program may not request a certificate for five (5) years following the NR customer’s participation in that utility’s EE program unless the NR customer has returned to an applicable public utility through a separate payment to the public utility or through payment of rates approved under 23 CAR § 461-107 any amount received from an applicable public utility calculated from the date of the installation of the last energy conservation program or measure, including any interest and directly attributable rate effects for:

         1. (i) The installation of any energy conservation programs and measures by the applicable public utility; or
         2. (ii) Financing or direct monetary compensation in the form of a rebate or incentive to enable the installation of any energy conservation programs and measures by the applicable public utility.

      2. (B)

         1. (i) For purposes of this subdivision (c)(5), the phrase “participates in a utility’s EE program” means accepting from the utility direct installation of an EE measure or financing or direct monetary compensation in the form of an incentive or rebate to enable installation of an EE measure.
         2. (ii) Attendance at educational events and receipt of marketing materials shall not constitute such participation.
         3. (d) The request for a certificate from an NR customer shall include the following minimum information:
   3. (1) An estimate of the expected life of the measure or measures or investment or investments;
   4. (2) An estimate of expected EE savings or evidence of the actual EE savings realized or to be realized, which can be linked to a specific measure or measures or investment or investments, stated in kilowatts (kW) or kilowatt hours (kWh) for electricity and in million British thermal units (MMBtu) or thousand cubic feet (Mcf) for natural gas;
   5. (3) An explanation of how the estimate of expected EE savings or actual EE savings realized was calculated, including supporting workpapers;
   6. (4) The name, title, company, and contact information for the person responsible for calculating the expected EE savings;
   7. (5) The historical annual usage and peak load information necessary to verify eligibility pursuant to subsection (m)or subsection (n) of this section, and a list of account numbers for all qualifying facilities;
   8. (6) The estimate of expected EE savings or evidence of the actual EE savings realized, which can be linked to a specific measure or measures or investment or investments, may include allowances for any reasonably known and measurable changes in operations, changes in output, or production level changes at the qualifying customer location or locations;

   9. (7)

      1. (A) In addition, a customer alleging that it has exhausted its opportunity to conduct further meaningful cost-effective EE programs and to participate in or to realize meaningful benefits through participation in its utility’s EE programs shall provide an explanation of how the customer has exhausted its opportunity to conduct further meaningful cost-effective EE programs and how the customer is unable to realize benefits through participation in its utility’s EE programs including a description of any measures implemented or investments made by the customer that support that conclusion.
      2. (B) The request shall include an analysis of the cost-effectiveness of the equipment or facilities that have been improved or that might be improved that is based upon the full life cycle of the equipment or facilities.
      3. (C) The customer also may submit alternative cost-effectiveness analysis;
   10. (8) A description of the steps the customer has taken or will take to measure and verify the achievement of the estimated EE savings supporting the request for a certificate; and
   11. (9) An affidavit certifying the accuracy of the information provided from a registered professional engineer or a company official authorized to bind the customer.

5. (e)

   1. (1) The Arkansas Public Service Commission, the Arkansas Public Service Commission’s General Staff, and the Attorney General may request additional information from the customer if such additional information is necessary to verify that the measure or measures implemented or to be implemented or investment or investments made or to be made are designed to provide EE savings at the customer’s facility in an amount equal to or greater than the most current EE goals or standards established by the Arkansas Public Service Commission for the applicable program years and utility.
   2. (2) Any such further information that is the basis of testimony or comments by General Staff or by the Attorney General before the Arkansas Public Service Commission and that is reasonably necessary to substantiate such testimony or comments shall be filed in the appropriate docket.
6. (f) General Staff shall, and other parties to the applicable docket may, review the request for a certificate and file findings and recommendations regarding the request for a certificate by November 15 of the year in which the request for a certificate was filed.

7. (g)

   1. (1) Either on its own motion or at the customer’s request, the Arkansas Public Service Commission may schedule a hearing to consider the request for a certificate, or the Arkansas Public Service Commission may without a hearing issue its determination regarding the request based upon the filings addressing the customer’s request.
   2. (2) A customer requesting a hearing shall file notice of such request in the customer-specific docket within five (5) calendar days after General Staff’s filing of recommendations regarding the application.
   3. (3) The Arkansas Public Service Commission shall issue its order either approving or denying a customer’s request for a certificate by December 15 of the year in which the request is filed unless such date is waived by the customer or extended by the Arkansas Public Service Commission.

8. (h)

   1. (1) The request, if approved, shall be effective for the duration of the applicable utility’s EE plan, beginning January 1 of the year following the year in which the request was filed.
   2. (2) Upon approving the request for a certificate under this section, the Arkansas Public Service Commission shall notify the appropriate public utility of the exemption.
   3. (3) The customer receiving the certificate shall be exempt from charges billed through a surcharge or rider for EE programs and measures approved by the Arkansas Public Service Commission pursuant to Arkansas Code § 23-3-405(a)(3) for that utility, including any lost contributions to fixed costs or utility incentives approved by the Arkansas Public Service Commission.
   4. (4) Beginning with the customer’s January billing cycle in the year following the filing of the request and upon Arkansas Public Service Commission approval of the certificate, the utility shall cease billing the customer for any such charges.

   5. (5) A customer receiving a certificate shall not be eligible to participate in any programs or measures offered by the utility pursuant to Arkansas Code § 23-3-405.

      1. (i) A certificate approved by the Arkansas Public Service Commission under this section shall continue for the duration of the public utility’s EE plan approved by the Arkansas Public Service Commission pursuant to Arkansas Code § 23-3-405 unless a different duration is approved by Arkansas Public Service Commission order.

9. (j)

   1. (1) The customer who requested a certificate pursuant to subdivision (b)(1)(A) of this section shall file a report presenting the measurement and verification of the achievement of the estimated EE savings supporting the request for a certificate.

   2. (2)

      1. (A) In the case of a current certificate holder seeking a new certificate, the report shall be filed as part of the new application.
      2. (B) The certificate holder shall use best efforts to report results for the greatest number of months available at the time the report is filed beginning with the first month covered by the certificate.
   3. (3) If a certificate holder is not seeking a new certificate, the report shall be filed no later than February 15 of the year following the expiration of the certificate.

10. (k)

    1. (1) The customer must request and receive approval for a new certificate applicable to each new program plan filed by the utility and the associated goals subsequently approved by the Arkansas Public Service Commission pursuant to Arkansas Code § 23-3-405.

    2. (2) The Arkansas Public Service Commission may consider the customer’s previous EE savings results as compared to goal in approving a subsequent request for a new certificate.

       1. (l)
    3. (1) A customer seeking to withdraw its certificate shall notify the Arkansas Public Service Commission of such withdrawal by November 15 of any year.
    4. (2) Upon notification of withdrawal under this subsection, the Arkansas Public Service Commission shall promptly notify the appropriate public utility of the withdrawal.

    5. (3) Beginning with the customer’s January billing cycle in the year following the notice of withdrawal, the utility shall begin billing the customer for any costs recovered through a surcharge or rider approved by the Arkansas Public Service Commission pursuant to Arkansas Code § 23-3-405(a)(3), including any lost contributions to fixed costs and utility incentives approved by the Arkansas Public Service Commission, and the customer shall become eligible to participate in any programs or measures offered by the utility pursuant to Arkansas Code § 23-3-405.

       1. (m) To be eligible for a certificate under this section, the customer’s facility at a single metered location shall have:
    6. (1) A minimum peak electrical demand of greater than one megawatt (1 MW) at that location based upon the prior twelve (12) months’ billing history at the time of the application; or
    7. (2) An annual natural gas consumption of greater than seventy thousand million British thermal units (70,000 MMBtu) or seventy thousand million cubic feet (70,000 Mcf) at that location.

11. (n) To be eligible for a certificate under Subpart 5 of this part for multiple facilities with identical ownership within a single utility’s service territory, the customer’s facilities at two (2) or more metered locations within that service territory shall have:

    1. (1) A minimum peak electrical demand of greater than two hundred kilowatts (200 kW) at each location and a minimum combined peak electrical demand of one megawatt (1 MW), based upon the prior twelve (12) months’ billing history at the time of the application, when aggregating the customer’s facilities listed in the application and within that service territory; or
    2. (2) An annual natural gas consumption of greater than fourteen thousand million British thermal units (14,000 MMBtu) or fourteen thousand million cubic feet (14,000 Mcf) at each location and a minimum combined annual natural gas consumption of seventy thousand million British thermal units (70,000 MMBtu) or seventy thousand million cubic feet (70,000 Mcf) when aggregating the customer’s facilities listed in the application and within that service territory.
12. (o) The customer-specific verification information submitted to the Arkansas Public Service Commission pursuant to subsections (d) and (j) of this section by the applicant for a certificate shall be protected from public disclosure by the Arkansas Public Service Commission as proprietary facts or trade secrets pursuant to the provisions of Arkansas Code § 23-2-316.

13. (p) Each utility affected by a customer receiving a certificate:

    1. (1) Shall reduce the level of energy sales in kilowatt hours (kWh) for electricity or million British thermal units (MMBtu) or thousand cubic feet (Mcf) for natural gas by the amount of the exempted customer’s usage during the base year established by the Arkansas Public Service Commission for the purpose of establishing the EE savings goals for that utility;
    2. (2) Shall exclude the consumption of that customer from the calculation of any EE savings for the duration of the public utility’s EE plan approved by the Arkansas Public Service Commission pursuant to Arkansas Code § 23-3-405; and
    3. (3) At the utility’s option may choose to seek approval from the Arkansas Public Service Commission to revise its last approved EE plan to reflect the impact, if any, of adjustments resulting from customers being approved for opt-out.

Codification Notes: This section was promulgated as Section 11 of the Rules for Conservation and Energy Efficiency Programs prior to codification into the Code of Arkansas Rules.