[Federal Register Volume 73, Number 249 (Monday, December 29, 2008)]
[Proposed Rules]
[Pages 79414-79420]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-30836]


 ========================================================================
 Proposed Rules
                                                 Federal Register
 ________________________________________________________________________
 
 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
 
 ========================================================================
 

  Federal Register / Vol. 73, No. 249 / Monday, December 29, 2008 / 
Proposed Rules  

[[Page 79414]]



DEPARTMENT OF ENERGY

10 CFR Part 440

[Docket No. EEWAP1201]
RIN 1904-AB84


Weatherization Assistance Program for Low-Income Persons

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

ACTION: Notice of proposed rulemaking.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Energy (DOE) is proposing to expand the 
definition of ``State'' under the Weatherization Assistance Program for 
Low-Income Persons (Weatherization Assistance Program) and to amend the 
financial assistance allocation procedure to reflect the expanded 
definition. The Energy Independence and Security Act of 2007 amended 
the Weatherization Assistance Program definition of ``State'' to 
include the Commonwealth of Puerto Rico and the other territories and 
possessions of the United States. Consistent with the statutory 
amendment, DOE is proposing to amend the regulatory definition of 
``State,'' and to amend the allocation procedure relied on to calculate 
the amount of financial assistance received by each State so as to 
include American Samoa, Guam, Commonwealth of the Northern Mariana 
Islands, Commonwealth of Puerto Rico, and the Virgin Islands.

DATES: Public comments on this proposed rule and the proposed 
information collection request will be accepted until February 27, 
2009. DOE will hold a public meeting on Tuesday, January 27, 2009, from 
9 a.m. to 12 p.m., in Conference Room 5E-081, at 1000 Independence 
Avenue, SW., Washington, DC. DOE must receive requests to speak at the 
public meeting before 4 p.m., Monday, January 26, 2009. DOE must 
receive a signed original and an electronic copy of statements to be 
given at the public meeting before 4 p.m., Thursday, January 22, 2009.

ADDRESSES: You may submit comments identified by the RIN number 
specified in the heading of this notice of proposed rulemaking (NOPR), 
by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include the RIN number in 
the subject line of the message.
     Postal Mail: Jean Diggs, U.S. Department of Energy, 
Weatherization Assistance Program, Mailstop EE-2K, 1000 Independence 
Avenue, SW., Washington, DC 20585-0121, Telephone: (202) 586-8506.
     Hand Delivery/Courier: Jean Diggs, U.S. Department of 
Energy, Weatherization Assistance Program, Room 6070, 1000 Independence 
Avenue, SW., Washington, DC 20585-0121.
    Instructions: All submissions must include the agency name and 
docket number or Regulatory Information Number (RIN) for this 
rulemaking.

FOR FURTHER INFORMATION CONTACT: Jean Diggs, U.S. Department of Energy, 
Office of Energy Efficiency and Renewable Energy, Weatherization 
Assistance Program, EE-2K, Room 6070, 1000 Independence Avenue, SW., 
Washington, DC 20585-0121, (202) 586-8506, e-mail: 
[email protected], or Chris Calamita, U.S. Department of Energy, 
Office of the General Counsel, Forrestal Building, GC-72, 1000 
Independence Avenue, SW., Washington, DC 20585, (202) 586-9507, e-mail: 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Introduction
II. Definition of ``State''
III. Allocation of Funds
IV. Effective Date
V. Regulatory Analysis
VI. Congressional Notification
VII. Approval of the Office of the Secretary

I. Introduction

    Sections 411-418 of the Energy Conservation and Production Act 
established the Weatherization Assistance Program for Low-Income 
Persons (Weatherization Program). (42 U.S.C. 6861 et seq.) The 
Weatherization Program reduces energy costs for low-income households 
by increasing the energy efficiency of their homes, while promoting 
their health and safety. The Weatherization Program provides energy-
efficiency services to more than 100,000 homes every year. These 
services reduce average annual energy costs by $413 per household.
    Under the Weatherization Program, services are prioritized to the 
elderly, people with disabilities, and families with children. These 
low-income households are often on fixed incomes or rely on income 
assistance programs and are most vulnerable to volatile changes in 
energy markets. High energy users or households with a high energy 
burden may also receive priority.
    DOE works in partnership with State- and local-level agencies to 
implement the Weatherization Program. DOE's Project Management Center 
awards grants to State-level agencies, which then contract with local 
agencies. Weatherization programs operate in all 50 States, the 
District of Columbia, and among Native American tribes. Approximately 
900 local agencies deliver weatherization services to eligible 
residents in every county in the nation. Since the inception of the 
Program in 1976, over 5.7 million households have received 
weatherization services. The Weatherization Program returns $1.65 in 
energy-related benefits for every $1 invested.

 II. Definition of ``State''

    DOE allocates financial assistance for weatherization to States and 
Indian tribes. (10 CFR 440.10 and 440.11) Under the current regulatory 
definition ``State'' is defined as ``each of the States and the 
District of Columbia.'' 10 CFR 440.3 section 411(c) of the Energy 
Independence and Security Act of 2007 amended section 412 of the Energy 
Conservation and Production Act to include under the definition of 
``State,'' the Commonwealth of Puerto Rico, and any other territory or 
possession of the United States. (42 U.S.C. 6862(8)) DOE is proposing 
to amend the regulatory definition of ``State'' under the 
Weatherization Program consistent with the statutory definition. The 
proposed definition of ``State'' would include American Samoa, Guam, 
Commonwealth of the Northern Mariana Islands, Commonwealth of Puerto 
Rico, and the Virgin Islands (hereafter

[[Page 79415]]

collectively referred to as the U.S. territories).
    The amended statutory definition of ``State'' includes territories 
or possessions of the United States generally, which would indicate 
that the territories of Palmyra Atoll and Wake Atoll would also be 
included. However, the territories of Palmyra Atoll and Wake Atoll do 
not have significant permanent populations to warrant inclusion in the 
Weatherization Program. Palmyra Atoll is a national Wildlife Refuge and 
access to Wake Atoll is restricted. (See, http://www.doi.gov/oia/Firstpginfo/islandfactsheet.htm, last visited September 30, 2008.) The 
purpose of the Weatherization Program is to provide grants ``for the 
purpose of providing financial assistance with regard to projects 
designed to provide for the weatherization of dwelling units, 
particularly those where elderly or handicapped low-income persons 
reside, occupied by low-income families.'' (42 U.S.C.6863(a)) Further 
DOE must ``allocate financial assistance to each State on the basis of 
the relative need for weatherization assistance among low-income 
persons throughout the states.'' (42 U.S.C. 6864) The absence of 
permanent populations on Palmyra Atoll and Wake Atoll would make the 
inclusion of these Atolls superfluous. As such DOE is not proposing to 
include the territories of Palmyra Atoll and Wake Atoll in the 
regulatory definition of State for the purpose of the Weatherization 
Assistance Program.

III. Allocation of Funds

    Each year Congress appropriates funds to implement the 
Weatherization Assistance Program. A portion of the appropriated funds 
is used for training and technical assistance. The remaining funds, 
comprising the majority of the appropriated funds, are distributed to 
the States as program funds based on a two-part allocation.
    From the total appropriation, DOE reserves funds for national 
training and technical assistance (T&TA) activities that benefit all 
States. In addition, DOE specifically allocates funding to States for 
T&TA activities at both the State and local levels. The total funds for 
national, State, and local T&TA cannot exceed 10 percent of the 
Congressional appropriation (42 U.S.C. 6865(a)(1)). The remaining funds 
comprise the State program allocations.
    If the State program allocations in a fiscal year (FY) are at or 
above the amount allocated to States in FY 1994 under Public Law 103-
332 (September 30, 1994), (i.e., the funds made available to the 
Weatherization Assistance Program minus funds for T&TA, which equaled 
$209,724,761) the State program allocations are distributed according 
to a two-part allocation procedure. Should total funds for State 
program allocation fall below $209,724,761, the allocations to States 
are reduced proportionally. See 10 CFR 440.10(c).
    The two-part allocation is comprised of a base allocation plus a 
formula allocation. See 10 CFR 440.10(b). The base allocation for each 
State is fixed, but differs for each State and was derived from each 
State's allocation under the appropriations for FY 1993.\1\ The base 
allocation was developed to minimize fluctuations in funds received by 
States between fiscal years resulting from changes in the total amount 
of appropriated funds received for the Weatherization Assistance 
Program. The base allocation was established in response to concern 
that substantial fluctuation between annual funds could disrupt a 
State's program. The current sum of the base allocations for all States 
totals $171,858,000. See 10 CFR 440.10(b)(1).
---------------------------------------------------------------------------

    \1\ Calculation of each State's share of the funds was based on 
a formula different from that in the current regulations. See, 60 FR 
4480, 4482; January 23, 1995.
---------------------------------------------------------------------------

    Under the two-part allocation, funds in excess of the total base 
allocation are allocated among States according to the formula 
allocation set forth in 10 CFR 440.10(b)(3). A State's formula 
allocation is based on three factors for each State. Factor 1, Low-
Income Population, represents the share of the nation's low-income 
households in each State expressed as a percentage of all U.S. low-
income households. Factor 2, Climatic Conditions, is obtained from the 
heating and cooling degrees for each State, treating the energy needed 
for heating and cooling proportionately. Factor 3, Residential Energy 
Expenditures by Low-Income Households in each State, is an 
approximation of the financial burden that energy use places on low-
income households. The approximation is necessary because State-
specific data on residential energy expenditures by low-income 
households is generally lacking.
    The Department is proposing to revise how funds are allocated under 
the Weatherization Assistance Program so as to include the U.S. 
territories. The Department is proposing revisions based on a method 
for determining the base and formula allocation for the U.S. 
territories that is consistent with how the current allocation method 
for States was developed. As indicated above, the current process was 
based on the allocation in FY 1994. A complete discussion of the 
development of the current allocation method is provided at 60 FR 4480.
    Essentially, the Department is following the development process 
used in 1995 to establish the existing allocation method (i.e., basing 
the allocation formula on FY 1994 allocation) under the assumption that 
at that time the U.S. territories were included in the Weatherization 
Assistance Program. DOE recognizes that the data used to calculate a 
State's share of the funds under the 1995 rulemaking are not available 
for the U.S. territories. Therefore, DOE is proposing to use Hawaii's 
information for the U.S. territories. Similar to Hawaii, the U.S. 
territories are in hot climates with virtually no heating load, are all 
islands, and share a common main fuel type used in low-income 
households, electricity.

A. Allocation Threshold

    As discussed in the previous paragraphs, the allocation of funding 
under the Weatherization Assistance Program is dependent first upon 
whether the total funds available for allocation to the States are at 
or above the level made available under Public Law 103-322, i.e., 
$209,724,761. In order to make the regulations clearer, the Department 
is proposing to replace the references in 10 CFR part 440 to the 
``total program allocations under Public Law No. 103-322'' with the 
actual dollar value. This proposal would not impact the allocation 
process, and is intended solely for the purpose of making the current 
regulation easier to read and understand.

B. Amending the Base Allocation

    To reflect the addition of the territories of the United States to 
the Weatherization Assistance Program, DOE is proposing to revise the 
base allocation to include the newly added jurisdictions. DOE is 
proposing to recalculate the base allocation using the amount of 
funding in the FY 1993 appropriations with the assumption that the U.S. 
territories had weatherization programs at that time. As discussed 
previously, DOE is proposing to rely on Hawaii's base allocation 
($120,000) as the base allocation for the U.S. territories. The 
proposed revision would not reduce the base allocation amount for any 
State, but instead would increase the total base allocation value so as 
to include the U.S. territories.
    Under this approach, the revised base allocation in 10 CFR 
440.10(b) would be as follows:

[[Page 79416]]



------------------------------------------------------------------------
                        State                           Base allocation
------------------------------------------------------------------------
Alabama..............................................         $1,636,000
Alaska...............................................          1,425,000
Arizona..............................................            760,000
Arkansas.............................................          1,417,000
California...........................................          4,404,000
Colorado.............................................          4,574,000
Connecticut..........................................          1,887,000
Delaware.............................................            409,000
District of Columbia.................................            487,000
Florida..............................................            761,000
Georgia..............................................          1,844,000
Hawaii...............................................            120,000
Idaho................................................          1,618,000
Illinois.............................................         10,717,000
Indiana..............................................          5,156,000
Iowa.................................................          4,032,000
Kansas...............................................          1,925,000
Kentucky.............................................          3,615,000
Louisiana............................................            912,000
Maine................................................          2,493,000
Maryland.............................................          1,963,000
Massachusetts........................................          5,111,000
Michigan.............................................         12,346,000
Minnesota............................................          8,342,000
Mississippi..........................................          1,094,000
Missouri.............................................          4,615,000
Montana..............................................          2,123,000
Nebraska.............................................          2,013,000
Nevada...............................................            586,000
New Hampshire........................................          1,193,000
New Jersey...........................................          3,775,000
New Mexico...........................................          1,519,000
New York.............................................         15,302,000
North Carolina.......................................          2,853,000
North Dakota.........................................          2,105,000
Ohio.................................................         10,665,000
Oklahoma.............................................          1,846,000
Oregon...............................................          2,320,000
Pennsylvania.........................................         11,457,000
Rhode Island.........................................            878,000
South Carolina.......................................          1,130,000
South Dakota.........................................          1,561,000
Tennessee............................................          3,218,000
Texas................................................          2,999,000
Utah.................................................          1,692,000
Vermont..............................................          1,014,000
Virginia.............................................          2,970,000
Washington...........................................          3,775,000
West Virginia........................................          2,573,000
Wisconsin............................................          7,061,000
Wyoming..............................................             67,000
American Samoa.......................................            120,000
Guam.................................................            120,000
Puerto Rico..........................................            120,000
Northern Mariana Islands.............................            120,000
Virgin Islands.......................................            120,000
                                                      ------------------
    Total............................................        171,858,000
------------------------------------------------------------------------

    DOE requests comment on the appropriateness of this approach. If a 
commenter suggests that funds not be allotted to the U.S. territories 
under the base allocation, DOE specifically requests reasons for this 
position.

C. Formula Allocation

    In addition to a base allocation, DOE is proposing to allocate 
weatherization funds to the U.S. territories through the formula 
allocation. Essentially, the weatherization funds would be based on the 
U.S. territories' (1) number of low-income households (10 CFR 
440.10(b)(3)(i)), (2) number of ``heating degree'' and ``cooling 
degree'' days (10 CFR 440.10(b)(3)(ii) and (iii)), and (3) average 
residential household energy expenditures (10 CFR 440.10(b)(3)(v)). DOE 
recognizes that data for the third factor of the formula allocation, 
i.e., average residential household energy expenditures, are not 
available for the U.S. territories. In the absence of this data, DOE is 
proposing to again rely on comparable data from a comparable State, 
i.e., Hawaii. This approach would not require revisions to the 
regulatory text for the formula allocation.
    DOE requests comment on the proposed approach taken in applying the 
formula allocation to the U.S. territories.

[[Page 79417]]

D. Practical Implications of the Proposed Revisions

    To demonstrate the implications of today's proposed rule, the 
following table provides the allocation of funding to the States in FY 
2008 under the current regulations, and for comparison, provides the 
allocation of funding in FY 2008 were today's proposal in effect.

      Table 1--Estimated State Allocations Under Proposed Approach
------------------------------------------------------------------------
                                                         FY 2008 total
                                     FY 2008 total     allocation (under
              State                 allocation  ($)   proposed approach)
                                                              ($)
------------------------------------------------------------------------
Alabama.........................           2,396,413           2,369,282
Alaska..........................           1,672,643           1,667,526
Arizona.........................           1,352,772           1,328,435
Arkansas........................           2,061,017           2,039,278
California......................           6,265,676           6,205,804
Colorado........................           5,454,329           5,431,980
Connecticut.....................           2,495,304           2,479,459
Delaware........................             572,412             568,910
District of Columbia............             646,384             643,058
Florida.........................           1,948,403           1,880,791
Georgia.........................           2,914,609           2,875,908
Hawaii..........................             203,581             201,446
Idaho...........................           1,964,431           1,956,311
Illinois........................          13,784,473          13,695,484
Indiana.........................           6,520,687           6,481,878
Iowa............................           4,966,077           4,940,585
Kansas..........................           2,518,837           2,501,273
Kentucky........................           4,498,867           4,472,826
Louisiana.......................           1,723,424           1,687,948
Maine...........................           3,053,961           3,040,267
Maryland........................           2,640,259           2,620,848
Massachusetts...................           6,517,890           6,480,033
Michigan........................          15,118,849          15,042,578
Minnesota.......................           9,809,089           9,770,586
Mississippi.....................           1,640,948           1,620,925
Missouri........................           5,975,410           5,934,156
Montana.........................           2,507,786           2,498,874
Nebraska........................           2,482,462           2,470,109
Nevada..........................             831,718             825,116
New Hampshire...................           1,501,762           1,494,753
New Jersey......................           5,078,993           5,041,792
New Mexico......................           1,900,941           1,890,993
New York........................          20,075,816          19,939,418
North Carolina..................           4,139,225           4,096,592
North Dakota....................           2,485,405           2,476,499
Ohio............................          13,676,435          13,590,214
Oklahoma........................           2,579,529           2,554,620
Oregon..........................           2,808,354           2,796,527
Pennsylvania....................          14,638,184          14,547,920
Rhode Island....................           1,150,982           1,144,728
South Carolina..................           1,767,384           1,744,810
South Dakota....................           1,907,964           1,899,574
Tennessee.......................           4,162,066           4,132,707
Texas...........................           5,549,413           5,435,085
Utah............................           2,067,579           2,058,365
Vermont.........................           1,272,118           1,266,503
Virginia........................           3,997,991           3,967,181
Washington......................           4,519,063           4,500,475
West Virginia...................           3,196,901           3,180,129
Wisconsin.......................           8,528,669           8,489,599
Wyoming.........................           1,169,217           1,165,147
American Samoa..................                   0             182,775
Guam............................                   0             188,072
Puerto Rico.....................                   0             820,775
Northern Mariana Islands........                   0             183,777
Virgin Islands..................                   0             191,998
Headquarters T&TA...............           4,508,595           4,508,595
                                 ---------------------------------------
    Total.......................         227,221,297         227,221,297
    Navajo Grant:...............             321,735             318,447
    Inter-Tribal Council of                   88,741              87,145
     America Grant:.............
    Northern Arapahoe Grant:....              99,863              99,516
    Arizona (adjusted)..........           1,128,755           1,108,447

[[Page 79418]]

 
    New Mexico (adjusted).......           1,714,483           1,705,389
    Wyoming (adjusted)..........           1,069,354           1,065,631
------------------------------------------------------------------------

IV. Effective Date

    DOE is proposing that the amended allocation procedure for the 
Weatherization Assistance Program will be in effect for the 2009 
program year.

V. Regulatory Analysis

A. Review Under Executive Order 12866

    Today's notice of public rulemaking is not a significant regulatory 
action under section 3(f)(1) of Executive Order 12866, ``Regulatory 
Planning and Review'' (58 FR 51735; October 4, 1993). Accordingly, 
today's action was not subject to review by the Office of Information 
and Regulatory Affairs (OIRA) in the Office of Management and Budget 
(OMB).

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires the 
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: http://www.gc.doe.gov.
    DOE has reviewed today's proposed rule for the Weatherization 
Assistance Program under the provisions of the Regulatory Flexibility 
Act. Today's proposed rule would incorporate statutory changes made to 
the Weatherization Assistance Program. The proposed amendments include 
the U.S. territories in the Weatherization Assistance Program to the 
same extent as States are currently included. This rule, if promulgated 
as a final rule, would directly affect States and individual recipients 
of assistance. It would not have an economic impact on small entities. 
On this basis, DOE certifies that if the proposed rule were finalized 
that it would 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.

C. Review Under the Paperwork Reduction Act of 1995

    In compliance with the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.), this notice announces that the Department has submitted 
a proposed revision of the currently approved collection of information 
request (ICR) to the Office of Management and Budget (OMB): 
Weatherization Assistance Program, OMB Control No. 1910-517. If made 
final, today's proposed rule would add a total of 5 additional 
respondents (American Samoa, Guam, Commonwealth of the Northern Mariana 
Islands, Commonwealth of Puerto Rico, and the Virgin Islands). (1) OMB 
No. 1910-5127; (2) Information Collection Request Title: Weatherization 
Assistance Program; (3) Purpose: The Weatherization Assistance Program 
provides grants to States, the District of Columbia and Native American 
Tribes annually; (4) Estimated Number of Respondents: 57 (Fifty Seven) 
States and territories; (5) Estimated Total Burden Hours: 3 hours per 
respondent; (6) Number of Collections: The information collection 
request contains 3 information and/or recordkeeping requirements.
    Comments on the revision of the collection of information may be 
sent to OMB addressed to: Department of Energy Desk Officer, Office of 
Information and Regulatory Affairs, OMB, 725 17th Street, NW., 
Washington, DC 20503. Persons submitting comments to OMB also are 
requested to send a copy to the DOE contact person at the address given 
in the ADDRESSES section of this notice. OMB is particularly interested 
in comments on: (1) The necessity of the proposed collection of 
information; (2) the accuracy of DOE's estimate of the burden; (3) ways 
to enhance the quality, utility, and clarity of the information to be 
maintained; and (4) ways to minimize the burden on the requirements of 
the respondents.

D. Review Under the National Environmental Policy Act of 1969

    DOE has tentatively determined that this proposed rule is covered 
under the Categorical Exclusion found in DOE's National Environmental 
Policy Act regulations at paragraph A.6. of Appendix A to subpart D, 10 
CFR part 1021. That Categorical Exclusion applies to rulemakings that 
are strictly procedural, such as rulemaking establishing the 
administration of grants. The proposed rule in today's document would 
establish the procedure for allocating funds under the Weatherization 
Assistance Program so as to cover, in addition to the States and the 
District of Columbia, the U.S. territories. The proposed regulations 
would not have any independent environmental impact. Accordingly, DOE 
has not prepared an environmental assessment or an environmental impact 
statement.

E. Review Under Executive Order 13132, ``Federalism''

    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 proposed 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.

F. Review Under Executive Order 12988

    With respect to the review of existing regulations and the 
promulgation of

[[Page 79419]]

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, if finalized, this proposed rule would meet 
the relevant standards of Executive Order 12988.

G. Review Under the 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 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.
    If made final, this proposed rule would 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.

H. Review Under the Treasury and General Government Appropriations Act 
of 1999

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 (Pub. L. 105-277) requires Federal agencies to issue a 
Family Policymaking Assessment for any rule that may affect family 
well-being. This notice of proposed rulemaking would 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.

I. Review Under the Treasury and General Government Appropriations Act 
of 2001

    Section 515 of 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 of proposed rulemaking under the OMB 
and DOE guidelines and has concluded that it is consistent with 
applicable policies in those guidelines.

J. Review Under 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 the 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. Review Under Executive Order 13175

    Executive Order 13175. ``Consultation and Coordination with Indian 
tribal Governments'' (65 FR 67249; November 9, 2000), requires DOE to 
develop an accountable process to ensure ``meaningful and timely input 
by tribal officials in the development of regulatory policies that have 
tribal implications.'' ``Policies that have tribal implications'' 
refers to regulations that have ``substantial direct effects on one or 
more Indian tribes, on the relationship between the Federal Government 
and Indian tribes, or on the distribution of power and responsibilities 
between the Federal Government and Indian tribes.'' Today's proposed 
regulatory action is not a policy that has ``tribal implications'' 
under Executive Order 13175.
    Under the Weatherization Assistance Program, a tribal organization 
may qualify as a unit of general purpose local government and, 
therefore, be eligible to apply for funds. See 10 CFR 440.11. Today's 
regulatory action would not change the eligibility of Indian tribes to 
apply for or receive funds under the Weatherization Assistance Program. 
If made final, today's regulatory action would include Puerto Rico and 
the U.S. territories in the allocation of available funds. DOE has 
reviewed today's notice of proposed rulemaking under executive Order 
13175 and has determined that it is consistent with applicable policies 
of that Executive Order.

VI. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date.

[[Page 79420]]

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).

VII. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's notice 
of proposed rulemaking.

List of Subjects in 10 CFR Part 440

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

    Issued in Washington, DC, on December 11, 2008.
David E. Rodgers,
Deputy Assistant Secretary for Energy Efficiency, Office of Technology 
Development, Energy Efficiency and Renewable Energy.

    For the reasons set forth in the preamble, DOE proposes to amend 
part 440 of chapter II of title 10, Code of Federal regulations to read 
as follows:

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

    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.

    2. Section 440.3 is amended by revising the definition of ``State'' 
to read as follows:


Sec.  440.3  Definitions.

* * * * *
    State means each of the States, the District of Columbia, American 
Samoa, Guam, Commonwealth of the Northern Mariana Islands, Commonwealth 
of Puerto Rico, and the Virgin Islands.
* * * * *
    3. Section 440.10 is amended by revising introductory paragraph 
(b), (b)(1) Table 1, and paragraph (c), to read as follows:


Sec.  440.10  Allocation of funds.

* * * * *
    (b) Based on the total program allocations at or above the amount 
of $209,724,761, DOE shall determine the program allocation for each 
State from available funds as follows:
    (1) * * *

------------------------------------------------------------------------
                                                        Base allocation
                        State                                 ($)
------------------------------------------------------------------------
Alabama..............................................          1,636,000
Alaska...............................................          1,425,000
Arizona..............................................            760,000
Arkansas.............................................          1,417,000
California...........................................          4,404,000
Colorado.............................................          4,574,000
Connecticut..........................................          1,887,000
Delaware.............................................            409,000
District of Columbia.................................            487,000
Florida..............................................            761,000
Georgia..............................................          1,844,000
Hawaii...............................................            120,000
Idaho................................................          1,618,000
Illinois.............................................         10,717,000
Indiana..............................................          5,156,000
Iowa.................................................          4,032,000
Kansas...............................................          1,925,000
Kentucky.............................................          3,615,000
Louisiana............................................            912,000
Maine................................................          2,493,000
Maryland.............................................          1,963,000
Massachusetts........................................          5,111,000
Michigan.............................................         12,346,000
Minnesota............................................          8,342,000
Mississippi..........................................          1,094,000
Missouri.............................................          4,615,000
Montana..............................................          2,123,000
Nebraska.............................................          2,013,000
Nevada...............................................            586,000
New Hampshire........................................          1,193,000
New Jersey...........................................          3,775,000
New Mexico...........................................          1,519,000
New York.............................................         15,302,000
North Carolina.......................................          2,853,000
North Dakota.........................................          2,105,000
Ohio.................................................         10,665,000
Oklahoma.............................................          1,846,000
Oregon...............................................          2,320,000
Pennsylvania.........................................         11,457,000
Rhode Island.........................................            878,000
South Carolina.......................................          1,130,000
South Dakota.........................................          1,561,000
Tennessee............................................          3,218,000
Texas................................................          2,999,000
Utah.................................................          1,692,000
Vermont..............................................          1,014,000
Virginia.............................................          2,970,000
Washington...........................................          3,775,000
West Virginia........................................          2,573,000
Wisconsin............................................          7,061,000
Wyoming..............................................            967,000
American Samoa.......................................            120,000
Guam.................................................            120,000
Puerto Rico..........................................            120,000
Northern Mariana Islands.............................            120,000
Virgin Islands.......................................            120,000
                                                      ------------------
    Total............................................        171,858,000
------------------------------------------------------------------------

* * * * *
    (c) Should total program allocations for any fiscal year fall below 
$209,724,761, then each State's program allocation shall be reduced 
from its allocated amount under a total program allocation of 
$209,724,761 by the same percentage as total program allocations for 
the fiscal year fall below $209,724, 761.
* * * * *

 [FR Doc. E8-30836 Filed 12-24-08; 8:45 am]
BILLING CODE 6450-01-P