[Federal Register Volume 71, Number 120 (Thursday, June 22, 2006)]
[Rules and Regulations]
[Pages 35775-35778]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E6-9858]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy

10 CFR Part 440

RIN 1904-AB56


Weatherization Assistance Program for Low-Income Persons

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Direct final rule.

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SUMMARY: The Department of Energy (DOE) is issuing a direct final rule 
to amend the regulations for the Weatherization Assistance Program for 
Low-Income Persons to incorporate statutory changes resulting from the 
passage of the Energy Policy Act of 2005. In this direct final rule, 
DOE defines renewable energy systems eligible for funding in the 
Weatherization Assistance Program, establishes criteria for performance 
and quality standards for eligible renewable energy systems, 
establishes procedures for submission of and action on manufacturer 
petitions for Secretarial determinations of eligibility of renewable 
energy technologies and systems, and establishes a ceiling for funding 
of renewable energy systems in the Weatherization Assistance Program.

DATES: This direct final rule is effective August 21, 2006, unless 
adverse or critical comments are received by July 24, 2006. If the 
effective date is delayed, timely notice will be published in the 
Federal Register.

ADDRESSES: You may submit comments, identified by RIN 1904-AB56, by any 
of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-Mail: [email protected]. Include RIN 1904-
AB56 in the subject line of the message.
     Mail: Weatherization Assistance Program, U.S. Department 
of Energy, Mail Stop EE-2K, 5E-066, 1000 Independence Avenue, SW., 
Washington, DC 20585.
    You may obtain electronic copies of this rulemaking and review 
comments received by DOE by visiting the DOE Freedom of Information 
Reading Room, Department of Energy, Room 1E-190, Forrestal Building, 
1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-3142, 
between the hours of 9 a.m. and 4 p.m., Monday through Friday, except 
Federal holidays.

FOR FURTHER INFORMATION CONTACT: John Atcheson, Weatherization 
Assistance Program, U.S. Department of Energy, Mail Stop EE-2K, 5E-066, 
1000 Independence Avenue, SW., Washington, DC 20585, (202) 586-0771.

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Amendments to the Weatherization Assistance Program
III. Final Action
IV. Procedural Requirements
V. The Catalog of Federal Domestic Assistance
VI. Approval of the Office of the Secretary

I. Introduction

    The Department of Energy (DOE) amends the program regulations for 
the Weatherization Assistance Program for Low-Income Persons. The 
program is authorized by Title IV, Part A, of the Energy Conservation 
and Production Act, 42 U.S.C. 6861 et seq. The amendments made by this 
direct final rule are necessitated by certain changes in the 
Weatherization Assistance Program mandated in the Energy Policy Act of 
2005 (Pub. L. 109-58) (EPACT 2005). Specifically, section 206 of EPACT 
2005 amended section 415(c) of the Energy Conservation and Production 
Act (42 U.S.C. 6865(c)) to provide funding to low-income persons for 
renewable energy systems and to set a new ceiling for funding of 
renewable energy systems in the Weatherization Assistance Program.
    In this direct final rule, DOE defines renewable energy systems 
eligible for funding in the Weatherization Assistance Program, 
establishes criteria for performance and quality standards for eligible 
renewable energy systems, establishes procedures for submission of and 
action on manufacturer petitions for Secretarial determinations of 
eligibility of renewable energy technologies and systems, and 
establishes a ceiling for funding of renewable energy systems in the 
Weatherization Assistance Program.
    DOE is today amending the program regulations to include specific 
requirements mandated by EPACT 2005. DOE is not now proposing any 
additions to the forms of renewable energy included in the definition 
of ``renewable energy system.'' Nor is DOE proposing renewable energy 
system performance and quality standards beyond those included in EPACT 
2005. Thus, DOE views these amendments to be noncontroversial and 
appropriate for direct final rulemaking (see III. Final Action for 
information on this procedure).

II. Amendments to the Weatherization Assistance Program

    This section of the preamble provides a section-by-section 
description of the amendments made by this direct final rule.
    Section 440.1 (Purpose and Scope). DOE amends 10 CFR 440.1 to 
explicitly state that the program's goals include the use of renewable 
energy systems and technologies. While DOE considered renewable energy 
systems and technologies to be eligible for funding under the program 
prior to the passage of EPACT 2005, Congress has clarified the scope 
and treatment of such systems by providing specific definitions and 
criteria to be used in assessing eligibility and by expanding funding 
opportunities for renewable energy systems.
    Section 440.3 (Definitions). DOE amends 10 CFR 440.3, the 
definitions section, to add definitions of the terms ``biomass'' and 
``renewable energy system.'' These definitions are taken from section 
206 of EPACT 2005, which amends 42 U.S.C. 6865(c) to include the 
definitions in a new subsection (6).
    Section 440.18 (Allowable Expenditures). DOE amends 10 CFR

[[Page 35776]]

440.18 to add a new paragraph (b) that incorporates the new statutory 
provisions addressing renewable energy systems and specifying a ceiling 
of $3,000 per dwelling for labor, weatherization materials, and related 
matters. Redesignated paragraph (c) (formerly paragraph (b)) is amended 
to provide that the procedure for annual adjustments to the ceiling for 
expenditures on a dwelling under the program applies to the $3,000 
renewable energy system cap, as well as to the $2,500 cap that applies 
to other eligible weatherization expenditures under the program. This 
amendment applies prospectively; DOE will not apply the $3,000 cap 
retroactively to recalculate weatherization assistance awarded since 
2000. Rather, the amendment is intended only to implement the new 
statutory ceiling applicable to renewable energy systems, and to 
clarify that the formula used for increasing the ceiling specified in 
2000 also applies to the cap for renewable energy technologies and 
systems.
    Section 440.21 (Weatherization materials, standards and energy 
audit procedures). DOE amends 10 CFR 440.21 to incorporate criteria for 
defining and evaluating what is an acceptable renewable energy 
technology or system for funding under the Weatherization Assistance 
Program. A new paragraph (c)(1) in this section specifies performance 
and quality standards criteria for renewable energy systems. These 
criteria are taken from amendments to the Energy Conservation and 
Production Act made by EPACT 2005, specifically 42 U.S.C. 6865(c)(5)(D) 
and (6)(A)(iii) and (iv). New paragraph (c)(2) establishes a procedure 
for submission of and action on petitions by manufacturers requesting 
the Secretary of Energy to certify a new technology or system as an 
eligible renewable energy system. This amendment implements 42 U.S.C. 
6865(c)(5)(A)(ii) and (B), added to the Energy Conservation and 
Production Act by EPACT 2005. In applying these requirements, DOE will 
build upon the approaches used now for energy efficiency materials and 
procedures.

III. Final Action

    DOE is publishing this direct final rule without prior proposal 
because DOE views these amendments as noncontroversial and anticipates 
no significant adverse comments. However, in the event that significant 
adverse or critical comments are filed, DOE has prepared a notice of 
proposed rulemaking (NOPR) proposing the same amendments. This NOPR is 
published as a separate document in this Federal Register publication. 
The direct final rule will be effective August 21, 2006, unless 
significant adverse or critical comments are received by July 24, 2006. 
If DOE receives significant adverse or critical comments, the revisions 
to 10 CFR part 440 in this direct final rule will be withdrawn before 
the effective date. In the case of withdrawal of this action, the 
withdrawal will be announced by a subsequent Federal Register document. 
All public comments will then be addressed in a separate final rule 
based on the proposed rule that is also issued today. DOE will not 
implement a second comment period on this action. Any persons 
interested in commenting on this rule should do so at this time.

IV. Procedural Requirements

A. Review Under Executive Order 12866

    Today's direct final rule has been determined not to be ``a 
significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' 58 FR 51735 (October 4, 1993). 
Accordingly, this action was not subject to review under that Executive 
Order by the Office of Information and Regulatory Affairs of the Office 
of Management and Budget (OMB).

B. National Environmental Policy Act

    DOE has determined that promulgation of this direct final rule 
falls into a class of actions that would not individually or 
cumulatively have a significant impact on the human environment, as 
determined by DOE regulations implementing the National Environmental 
Policy Act of 1969 (42 U.S.C. 4321 et seq.). Specifically, this direct 
final rule is covered under the Categorical Exclusion found in DOE's 
National Environmental Policy Act regulations at paragraph A.5 of 
appendix A to subpart D, 10 CFR part 1021, which applies to rulemakings 
that interpret or amend an existing regulation without changing the 
environmental effect of the regulation. Accordingly, neither an 
environmental assessment nor an environmental impact statement is 
required.

C. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that by law must be proposed for public comment, unless the agency 
certifies that the rule, if promulgated, will not have a significant 
economic impact on a substantial number of small entities. As required 
by Executive Order 13272, ``Proper Consideration of Small Entities in 
Agency Rulemaking,'' 67 FR 53461 (August 16, 2002), DOE published 
procedures and policies on February 19, 2003, to ensure that the 
potential impacts of its rules on small entities are properly 
considered during the rulemaking process (68 FR 7990). DOE has made its 
procedures and policies available on the Office of General Counsel's 
Web site at http://www.gc.doe.gov.
    DOE has reviewed today's direct final rule under the provisions of 
the Regulatory Flexibility Act and the procedures and policies 
published on February 19, 2003. The direct final rule amends DOE's 
Weatherization Assistance Program regulations to incorporate statutory 
changes made to the grant program. These amendments do not 
independently have any economic impact on small entities. Moreover, the 
EPACT 2005 changes expand the benefits available under the program for 
grant recipients; the statutory changes cause no adverse impact on any 
recipient. On the basis of the foregoing, DOE certifies that the 
amendments will not have a significant economic impact on a substantial 
number of small entities. Accordingly, DOE has not prepared a 
regulatory flexibility analysis for this rulemaking. DOE's 
certification and supporting statement of factual basis will be 
provided to the Chief Counsel for Advocacy of the Small Business 
Administration pursuant to 5 U.S.C. 605(b).

D. Paperwork Reduction Act

    This direct final rule will not impose any new collection of 
information subject to review and approval by OMB under the Paperwork 
Reduction Act, 44 U.S.C. 3501 et seq.

E. Unfunded Mandates Reform Act of 1995

    The Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4) generally 
requires Federal agencies to examine closely the impacts of regulatory 
actions on State, local, and tribal governments. Subsection 101(5) of 
Title I of that law defines a Federal intergovernmental mandate to 
include any regulation that would impose upon State, local, or tribal 
governments an enforceable duty, except a condition of Federal 
assistance or a duty arising from participating in a voluntary Federal 
program. Title II of that law requires each Federal agency to assess 
the effects of Federal regulatory actions on State, local, and tribal 
governments, in the aggregate, or to the private sector, other than to 
the extent such actions merely incorporate requirements specifically 
set forth in a

[[Page 35777]]

statute. Section 202 of that title requires a Federal agency to perform 
a detailed assessment of the anticipated costs and benefits of any rule 
that includes a Federal mandate which may result in costs to State, 
local, or tribal governments, or to the private sector, of $100 million 
or more. Section 204 of that title requires each agency that proposes a 
rule containing a significant Federal intergovernmental mandate to 
develop an effective process for obtaining meaningful and timely input 
from elected officers of State, local, and tribal governments.
    This direct final rule will not impose a Federal mandate on State, 
local or tribal governments, and it will not result in the expenditure 
by State, local, and tribal governments in the aggregate, or by the 
private sector, of $100 million or more in any one year. Accordingly, 
no assessment or analysis is required under the Unfunded Mandates 
Reform Act of 1995.

F. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any proposed rule that may affect family 
well-being. Today's direct final rule will not have any impact on the 
autonomy or integrity of the family as an institution. Accordingly, DOE 
has concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

G. Executive Order 13132

    Executive Order 13132, 64 FR 43255 (August 4, 1999), imposes 
certain requirements on agencies formulating and implementing policies 
or regulations that pre-empt State law or that have federalism 
implications. Agencies are required to examine the constitutional and 
statutory authority supporting any action that would limit the 
policymaking discretion of the States and carefully assess the 
necessity for such actions. DOE has examined this direct final rule and 
has determined that it would not pre-empt State law and would not have 
a substantial direct effect on the States, on the relationship between 
the national government and the States, or on the distribution of power 
and responsibilities among the various levels of government. No further 
action is required by Executive Order 13132.

H. Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of new regulations, section 3(a) of Executive Order 12988, 
Civil Justice Reform, 61 FR 4729 (February 7, 1996), imposes on 
Executive agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; and (3) provide a clear legal 
standard for affected conduct rather than a general standard and 
promote simplification and burden reduction. The review required by 
sections 3(a) and 3(b) of Executive Order 12988 specifically requires 
that Executive agencies make every reasonable effort to ensure that the 
regulation: (1) Clearly specifies the pre-emptive effect, if any; (2) 
clearly specifies any effect on existing Federal law or regulation; (3) 
provides a clear legal standard for affected conduct while promoting 
simplification and burden reduction; (4) specifies the retroactive 
effect, if any; (5) adequately defines key terms; and (6) addresses 
other important issues affecting clarity and general draftsmanship 
under any guidelines issued by the Attorney General. Section 3(c) of 
Executive Order 12988 requires Executive agencies to review regulations 
in light of applicable standards in sections 3(a) and 3(b) to determine 
whether they are met or it is unreasonable to meet one or more of them. 
DOE has completed the required review and determined that, to the 
extent permitted by law, this direct final rule meets the relevant 
standards of Executive Order 12988.

I. Treasury and General Government Appropriations Act, 2001

    The Treasury and General Government Appropriations Act, 2001 (44 
U.S.C. 3516, note) provides for agencies to review most disseminations 
of information to the public under guidelines established by each 
agency pursuant to general guidelines issued by OMB. OMB's guidelines 
were published at 67 FR 8452 (February 22, 2002), and DOE's guidelines 
were published at 67 FR 62446 (October 7, 2002). DOE has reviewed 
today's notice under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

J. Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
OMB a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation of a 
final rule, and that: (1) Is a significant regulatory action under 
Executive Order 12866, or any successor order; and (2) is likely to 
have a significant adverse effect on the supply, distribution, or use 
of energy, or (3) is designated by the Administrator of Office of 
Information and Regulatory Affairs (OIRA) as a significant energy 
action. For any proposed significant energy action, the agency must 
give a detailed statement of any adverse effects on energy supply, 
distribution, or use should the proposal be implemented, and of 
reasonable alternatives to the action and their expected benefits on 
energy supply, distribution, and use. Today's regulatory action would 
not have a significant adverse effect on the supply, distribution, or 
use of energy and is therefore not a significant energy action. 
Accordingly, DOE has not prepared a Statement of Energy Effects.

K. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of today's rule prior to its effective date. The report 
will state that it has been determined that the rule is not a ``major 
rule'' as defined by 5 U.S.C. 804(2).

V. The Catalog of Federal Domestic Assistance

    The Catalog of Federal Domestic Assistance number for the 
Weatherization Assistance Program for Low-Income Persons is 81.042.

VI. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's direct 
final rule, as well as the accompanying notice of proposed rulemaking.

List of Subjects 10 CFR Part 440

    Administrative practice and procedure, Aged, Energy conservation, 
Grant programs--energy, Grant programs--housing and community 
development, Housing standards, Indians, Individuals with disabilities, 
Reporting and recordkeeping requirements, Weatherization.

    Issued in Washington, DC, on June 9, 2006.
Douglas L. Faulkner,
Principal Deputy Assistant Secretary, Energy Efficiency and Renewable 
Energy.

0
For the reasons set forth in the preamble, DOE amends part 440 of 
chapter II of title 10, Code of Federal Regulations, to read as 
follows:

[[Page 35778]]

PART 440--WEATHERIZATION ASSISTANCE PROGRAM FOR LOW-INCOME PERSONS

0
1. The authority citation for part 440 continues to read as follows:

    Authority: 42 U.S.C. 6861 et seq.; 42 U.S.C. 7101 et seq.


Sec.  440.1  [Amended]

0
2. Section 440.1 is amended by adding the words ``or to provide such 
persons renewable energy systems or technologies'' after the words 
``low-income persons,'' where they are first used.

0
3. Section 440.3 is amended by adding in alphabetical order definitions 
of ``biomass'' and ``renewable energy system'' to read as follows:


Sec.  440.3  Definitions.

* * * * *
    Biomass means any organic matter that is available on a renewable 
or recurring basis, including agricultural crops and trees, wood and 
wood wastes and residues, plants (including aquatic plants), grasses, 
residues, fibers, and animal wastes, municipal wastes, and other waste 
materials.
* * * * *
    Renewable energy system means a system which when installed in 
connection with a dwelling--
    (1) Transmits or uses solar energy, energy derived from geothermal 
deposits, energy derived from biomass (or any other form of renewable 
energy which DOE subsequently specifies through an amendment of this 
part) for the purpose of heating or cooling such dwelling or providing 
hot water or electricity for use within such dwelling; or wind energy 
for nonbusiness residential purposes; and
    (2) Which meets the performance and quality standards prescribed in 
Sec.  440.21 (c) of this part.
* * * * *

0
4. Section 440.18 is amended by:
0
a. Redesignating paragraphs (b) through (e) as paragraphs (c) through 
(f);
0
b. Adding a new paragraph (b);
0
c. Amending redesignated paragraph (c) by adding the phrase ``($3,000 
for renewable energy systems)'' after the words ``The $2,500 average'' 
in the introductory sentence.
    The additions read as follows:


Sec.  440.18  Allowable expenditures.

* * * * *
    (b) The expenditure of financial assistance provided under this 
part for labor, weatherization materials, and related matters for a 
renewable energy system, shall not exceed an average of $3,000 per 
dwelling unit.
* * * * *

0
5. Section 440.21 is amended by:
0
a. Revising paragraph (a);
0
b. Redesignating paragraphs (c) through (h) as paragraphs (d) through 
(i);
0
c. Adding a new paragraph (c);
0
d. Amending the introductory sentence of redesignated paragraph (e) by 
removing the words ``paragraph (c)'' and adding in their place the 
words ``paragraph (d)''; and, in redesignated paragraph (e)(2), by 
removing the words ``paragraph (d)(1)'' and adding in their place the 
words ``paragraph (e)(1)''; and
0
e. Amending redesignated paragraph (g) by removing the words 
``paragraphs (b) through (e)'' and adding in their place the words 
``paragraphs (b) through (f)''.
    The revisions and additions read as follows:


Sec.  440.21  Weatherization materials standards and energy audit 
procedures.

    (a) Paragraph (b) of this section describes the required standards 
for weatherization materials. Paragraph (c) (1) of this section 
describes the performance and quality standards for renewable energy 
systems. Paragraph (c) (2) of this section specifies the procedures and 
criteria that are used for considering a petition from a manufacturer 
requesting the Secretary to certify an item as a renewable energy 
system. Paragraphs (d) and (e) of this section describe the cost-
effectiveness tests that weatherization materials must pass before they 
may be installed in an eligible dwelling unit. Paragraph (f) of this 
section lists the other energy audit requirements that do not pertain 
to cost-effectiveness tests of weatherization materials. Paragraphs (g) 
and (h) of this section describe the use of priority lists and 
presumptively cost-effective general heat waste reduction materials as 
part of a State's energy audit procedures. Paragraph (i) of this 
section explains that a State's energy audit procedures and priority 
lists must be re-approved by DOE every five years.
* * * * *
    (c)(1) A system or technology shall not be considered by DOE to be 
a renewable energy system under this part unless:
    (i) It will result in a reduction in oil or natural gas 
consumption;
    (ii) It will not result in an increased use of any item which is 
known to be, or reasonably expected to be, environmentally hazardous or 
a threat to public health or safety;
    (iii) Available Federal subsidies do not make such a specification 
unnecessary or inappropriate (in light of the most advantageous 
allocation of economic resources); and
    (iv) If a combustion rated system, it has a thermal efficiency 
rating of at least 75 percent; or, in the case of a solar system, it 
has a thermal efficiency rating of at least 15 percent.
    (2) Any manufacturer may submit a petition to DOE requesting the 
Secretary to certify an item as a renewable energy system.
    (i) Petitions should be submitted to: Weatherization Assistance 
Program, Office of Energy Efficiency and Renewable, Mail Stop EE-2K, 
1000 Independence Avenue, SW., Washington, DC 20585.
    (ii) A petition for certification of an item as a renewable energy 
system must be accompanied by information demonstrating that the item 
meets the criteria in paragraph (c)(1) of this section.
    (iii) DOE may publish a document in the Federal Register that 
invites public comment on a petition.
    (iv) DOE shall notify the petitioner of the Secretary's action on 
the request within one year after the filing of a complete petition, 
and shall publish notice of approvals and denials in the Federal 
Register.
* * * * *

 [FR Doc. E6-9858 Filed 6-21-06; 8:45 am]
BILLING CODE 6450-01-P