[Federal Register Volume 74, Number 56 (Wednesday, March 25, 2009)]
[Rules and Regulations]
[Pages 12535-12540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-6628]



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  Federal Register / Vol. 74 , No. 56 / Wednesday, March 25, 2009 / 
Rules and Regulations  

[[Page 12535]]



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: Final rule.

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

SUMMARY: The U.S. Department of Energy (DOE) is expanding the 
definition of ``State'' under the Weatherization Assistance Program for 
Low-Income Persons and amending 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 amending the regulatory definition 
of ``State,'' and amending 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. 
Further, DOE is amending the Weatherization Assistance Program 
regulations consistent with recent statutory amendments in the American 
Recovery and Reinvestment Act of 2009.

DATES: This final rule is effective March 25, 2009, and applicable on 
March 12, 2009.

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. American Recovery and Reinvestment Act of 2009
V. Effective Date
VI. Regulatory Analysis
VII. Congressional Notification
VIII. 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 Assistance Program). (42 U.S.C. 6861 et seq.) 
The Weatherization Assistance Program reduces energy costs for low-
income households by increasing the energy efficiency of their homes, 
while promoting their health and safety. DOE works in partnership with 
State- and local-level agencies to implement the Weatherization 
Assistance Program. DOE's Project Management Center awards grants to 
State-level agencies, which then contract with local agencies.
    DOE issued a notice of proposed rulemaking (NOPR) to amend the 
Weatherization Assistance Program regulations consistent with 
amendments to the Energy Conservation and Production Act under the 
Energy Independence and Security Act of 2007 (Pub. L. No. 110-140; 
December 19, 2007). (73 FR 79414; December 29, 2008) 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 proposed 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.
    DOE received one comment in response to the NOPR, from the Governor 
of the Virgin Islands. The comment was generally supportive of the rule 
as proposed. As explained in the remainder of this notice, DOE is 
adopting the NOPR as proposed. Further, DOE is making additional 
amendments to the Weatherization Assistance Program regulations 
consistent with the recent statutory changes in the American Recovery 
and Reinvestment Act of 2009 (Pub. L. No. 111-5).

II. Definition of ``State''

    DOE allocates financial assistance for weatherization to States and 
Indian tribes. 10 CFR 440.10 and 440.11. 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)) In the NOPR, DOE 
proposed to amend the regulatory definition of ``State'' under the 
Weatherization Program consistent with the statutory definition. As 
proposed the definition of ``State'' would include American Samoa, 
Guam, Commonwealth of the Northern Mariana Islands, Commonwealth of 
Puerto Rico, and the Virgin Islands (hereafter 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, as explained in the NOPR, 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 Assistance 
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

[[Page 12536]]

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 did not propose to include the territories of 
Palmyra Atoll and Wake Atoll in the regulatory definition of State for 
the purpose of the Weatherization Assistance Program.
    The comment from the Governor of the Virgin Islands supported 
inclusion of the U.S. territories in the definition of ``State,'' and 
urged DOE to finalize the revised definition in advance of distributing 
funds made available under the American Recovery and Reinvestment Act 
of 2009.
    DOE has concluded that the rationale for the proposed definition 
remains valid. Therefore, DOE is amending the definition of ``State,'' 
as proposed, to mean 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.

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. Prior to the 
American Recovery and Reinvestment Act of 2009, the total funds for 
national, State, and local T&TA could not exceed 10 percent of the 
Congressional appropriation. Section 407 of the American Recovery and 
Reinvestment Act of 2009 increased the percent of funds eligible for 
T&TA to up to 20 percent. (42 U.S.C. 6866) 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 No. 
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.
---------------------------------------------------------------------------

    \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.
    In the NOPR, DOE proposed to revise how funds are allocated under 
the Weatherization Assistance Program so as to include the U.S. 
territories. The proposed revisions were based on a method for 
determining the base and formula allocation for the U.S. territories 
that was consistent with how the current allocation method for States 
was developed.
    Essentially, the Department followed 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 recognized 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 proposed 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 
(excluding funds for T&TA) are at or above the level made available 
under Public Law No. 103-322, i.e., $209,724,761. In order to make the 
regulations clearer, the Department is replacing the references in 10 
CFR part 440 to the ``total program allocations under Public Law No. 
103-322'' with the actual dollar value. This amendment does not impact 
the allocation process, and is solely for the purpose of making the 
current regulation easier to read and understand.

 B. Base Allocation

    To reflect the addition of the U.S. territories to the 
Weatherization Assistance Program, DOE is revising the base allocation 
to include the newly added jurisdictions, as proposed. As discussed 
previously, DOE relied on Hawaii's base allocation ($120,000) as the 
base allocation for the U.S. territories. This revision does not reduce 
the base allocation amount for any State, but instead increases the 
total base allocation value so as to include the U.S. territories.
    The comment from the Governor of the Virgin Islands supported the 
use of data from Hawaii, although indicated that such data could be 
made available for the Virgin Islands. However, such data was not 
provided as part of the comment.
    For the reasons expressed in the NOPR and in this Final Rule, DOE 
is adopting the Base Allocation as proposed.

C. Formula Allocation

    In addition to a base allocation, DOE will now allocate 
weatherization funds to the U.S. territories through the formula 
allocation. Essentially, the weatherization funds will be based on

[[Page 12537]]

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, may not be 
available for all the U.S. territories. In the instances in which DOE 
does not have such data, DOE will again rely on comparable data from a 
comparable State, i.e., Hawaii, as proposed. This approach does not 
require revisions to the regulatory text for the formula allocation.

IV. American Recovery and Reinvestment Act of 2009

    Section 407 of the American Recovery and Reinvestment Act of 2009 
amended several of the Weatherization Assistance Program provisions in 
the Energy Conservation and Production Act. The amendments under 
section 407--
     Increased the referenced percentage of the poverty level 
in the definition of ``low income'' from 150 percent to 200 percent (42 
U.S.C. 6862(7));
     Increased the limit on the minimum average expenditure per 
dwelling unit from $2,500 to $6,500 (42 U.S.C. 6865(c)(1));
     Increased the maximum amount of appropriated funds that 
the Department may apply towards T&TA from 10 percent of the 
appropriated sums to 20 percent (42 U.S.C. 6866); and
     Extended eligibility for further financial assistance to 
dwelling units that had been partially weatherized under a Federal 
program from September 30, 1975, through September 30, 1994.
    The first three of these amendments under section 407 of the 
American Recovery and Reinvestment Act of 2009 require updates to the 
Weatherization Assistance Program regulations. Today's final rule 
amends the regulations consistent with these changes. The time period 
for previously received financial assistance as it relates to dwelling 
eligibility is governed by the statute and is not reflected in 
regulation, and as such there is no existing regulation to update.
    DOE finds that there is good cause to amend the Weatherization 
Assistance Program regulations consistent with the American Recovery 
and Reinvestment Act of 2009 without providing an opportunity for 
notice and comment as such procedures are unnecessary. DOE is 
establishing the maximum percent of poverty level referenced in the 
definition of ``low income,'' the maximum permitted expenditure per 
dwelling, or the maximum percent of funds permitted to be used for T&TA 
in accordance with the specific provisions of the statute. DOE is 
exercising no discretion in codifying these provisions and does not 
have the authority to amend the specific aspects of these provisions. 
Thus, no useful purpose would be served by offering an opportunity for 
public comment.

V. Effective Date

    Today's final rule is effective on March 25, 2009. Pursuant to 5 
U.S.C. 553(d)(3), the Department finds good cause that the effective 
date of this final rule need not be delayed. In the American Recovery 
and Reinvestment Act of 2009 Congress appropriated $5 billion for the 
Weatherization Assistance Program. The stated purposes of the American 
Recovery and Reinvestment Act of 2009 are--
    (1) To preserve and create jobs and promote economic recovery.
    (2) To assist those most impacted by the recession.
    (3) To provide investments needed to increase economic efficiency 
by spurring technological advances in science and health.
    (4) To invest in transportation, environmental protection, and 
other infrastructure that will provide long-term economic benefits.
    (5) To stabilize State and local government budgets, in order to 
minimize and avoid reductions in essential services and 
counterproductive state and local tax increases. (Section 3(a), Pub. L. 
No. 11-5) Moreover, Congress directed the agencies to manage and expend 
the funds made available so as to achieve the specified purposes, 
including commencing expenditures and activities as quickly as possible 
consistent with prudent management. (Section 3(b), Pub. L. No. 11-5) A 
delay in the effective date of today's final rule would delay the 
allocation of weatherization assistance funds to the States including 
the U.S. territories.\2\ DOE believes it would be contrary to the 
public interest to delay the allocation of weatherization funds made 
available under the American Recovery and Reinvestment Act of 2009. 
Thus, a delay to the final rule would be inconsistent with the 
Congressional direction to commence expenditures as quickly as 
possible, and thereby unnecessary, impracticable, and contrary to 
public interest. For the reasons stated above, DOE finds good cause, 
pursuant to 5 U.S.C. 553(d)(3), to waive the 30-day delay in effective 
date required by the rulemaking provisions of the Administrative 
Procedures Act.
---------------------------------------------------------------------------

    \2\ The comment from the Governor of the Virgin Islands 
encouraged DOE to apply the amended definition and allocation 
formula to funds made available under the Consolidated Security, 
Disaster Assistance, and Continuing Appropriations Act, 2009 (Pub. 
L. No. 110-329; September 30, 2008). Today's final rule will apply 
to fund allocation determinations made following the issuance date 
of today's final rule.
---------------------------------------------------------------------------

VI. Regulatory Analysis

A. Review under Executive Order 12866

    Today's final rule 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 final rule for the Weatherization 
Assistance Program under the provisions of the Regulatory Flexibility 
Act. Today's final rule incorporates statutory changes made to the 
Weatherization Assistance Program. The amendments include the U.S. 
territories in the Weatherization Assistance Program to the same extent 
as States are currently included. This rule will directly affect States 
and individual recipients of assistance. It will not have an economic 
impact on small entities. On this basis, DOE certifies that today's 
final rule 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.

[[Page 12538]]

C. Review Under the National Environmental Policy Act of 1969

    DOE has determined that today's final 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. Today's final rule establishes 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 regulations will not have any independent 
environmental impact. Accordingly, DOE has not prepared an 
environmental assessment or an environmental impact statement.

D. 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 today's final rule and has 
determined that it will not pre-empt State law and will 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.

E. Review Under 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, today's final rule meets the relevant 
standards of Executive Order 12988.

F. 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.
    Today's 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.

G. 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. Today's 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.

H. 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 final rule under the OMB and DOE guidelines 
and has concluded that it is consistent with applicable policies in 
those guidelines.

I. 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.

[[Page 12539]]

    Today's regulatory action will 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.

J. 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 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 will not change the eligibility of Indian tribes to 
apply for or receive funds under the Weatherization Assistance Program. 
Today's regulatory action will include the U.S. territories in the 
allocation of available funds. DOE has reviewed today's final rule 
under Executive Order 13175 and has determined that it is consistent 
with applicable policies of that Executive Order.

VII. 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. 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).

VIII. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of today's final 
rule.

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 March 12, 2009.
Steve Chalk,
Acting 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:

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.

0
2. Section 440.3 is amended by revising the definitions of ``low 
income'' and ``State'' to read as follows:


Sec.  440.3  Definitions.

* * * * *
    Low Income means that income in relation to family size which:
    (1) At or below 200 percent of the poverty level determined in 
accordance with criteria established by the Director of the Office of 
Management and Budget, except that the Secretary may establish a higher 
level if the Secretary, after consulting with the Secretary of 
Agriculture and the Secretary of Health and Human Services, determines 
that such a higher level is necessary to carry out the purposes of this 
part and is consistent with the eligibility criteria established for 
the weatherization program under Section 222(a)(12) of the Economic 
Opportunity Act of 1964;
    (2) Is the basis on which cash assistance payments have been paid 
during the preceding twelve month-period under Titles IV and XVI of the 
Social Security Act or applicable State or local law; or
    (3) If a State elects, is the basis for eligibility for assistance 
under the Low Income Home Energy Assistance Act of 1981, provided that 
such basis is at least 200 percent of the poverty level determined in 
accordance with criteria established by the Director of the Office of 
Management and Budget.
* * * * *
    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.
* * * * *

0
3. Section 440.10 is amended by:
0
a. Removing the phrase ``total program allocations under Pub. L. 103-
332'' in paragraph (b) introductory text and adding in its place 
``$209,724,761'';
0
b. Revising Table 1 in paragraph (b)(1) and paragraph (c) to read as 
follows:


Sec.  440.10  Allocation of funds.

* * * * *
    (b) * * *
    (1) * * *

                          Base Allocation Table
------------------------------------------------------------------------
                                                               Base
                          State                             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.................................................         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

[[Page 12540]]

percentage as total program allocations for the fiscal year fall below 
$209,724,761.
* * * * *

0
4. Section 440.18 is amended by revising paragraphs (a) and (c) 
introductory text to read as follows:


Sec.  440.18  Allowable expenditures.

    (a) Except as adjusted, the expenditure of financial assistance 
provided under this part for labor, weatherization materials, and 
related matters included in paragraphs (c)(1) through (9) of this 
section shall not exceed an average of $6,500 per dwelling unit 
weatherized in the State, except as adjusted in paragraph (c) of this 
section.
* * * * *
    (c) The $6,500 average will be adjusted annually by DOE beginning 
in calendar year 2010 and the $3,000 average for renewable energy 
systems will be adjusted annually by DOE beginning in calendar year 
2007, by increasing the limitations by an amount equal to:
* * * * *

0
5. Section 440.22 is amended by revising paragraph (a) to read as 
follows:


Sec.  440.22  Eligible dwelling units.

    (a) A dwelling unit shall be eligible for weatherization assistance 
under this part if it is occupied by a family unit:
    (1) Whose income is at or below 200 percent of the poverty level 
determined in accordance with criteria established by the Director of 
the Office of Management and Budget,
    (2) Which contains a member who has received cash assistance 
payments under Title IV or XVI of the Social Security Act or applicable 
State or local law at any time during the 12-month period preceding the 
determination of eligibility for weatherization assistance; or
    (3) If the State elects, is eligible for assistance under the Low-
Income Home Energy Assistance Act of 1981, provided that such basis is 
at least 200 percent of the poverty level determined in accordance with 
criteria established by the Director of the Office of Management and 
Budget.
* * * * *

0
6. Section 440.23 is amended by revising paragraph (e) to read as 
follows:


Sec.  440.23  Oversight, training, and technical assistance.

* * * * *
    (e) The Secretary may reserve from the funds appropriated for any 
fiscal year an amount not to exceed 20 percent to provide, directly or 
indirectly, training and technical assistance to any grantee or 
subgrantee. Such training and technical assistance may include 
providing information concerning conservation practices to occupants of 
eligible dwelling units.

 [FR Doc. E9-6628 Filed 3-24-09; 8:45 am]
BILLING CODE 6450-01-P