This section of the FEDERAL REGISTER

contains regulatory documents having general

applicability and legal effect, most of which

are keyed to and codified in the Code of

Federal Regulations, which is published under

50 titles pursuant to 44 U.S.C. 1510.

The Code of Federal Regulations is sold by

the Superintendent of Documents. Prices of

new books are listed in the first FEDERAL

REGISTER issue of each week.

Rules and Regulations Federal Register

3847 

Vol. 75, No. 15 

Monday, January 25, 2010 

DEPARTMENT OF AGRICULTURE 

Food Safety and Inspection Service 

9 CFR Part 392 

[Docket No. FSIS–2009–0029] 

Petitions for Rulemaking; Approval of 

Information Collection 

AGENCY: Food Safety and Inspection 

Service, USDA. 

ACTION: Final rule; information 

collection approval. 

SUMMARY: The Food Safety and 

Inspection Service (FSIS) is announcing 

that the Office of Management and 

Budget (OMB) has approved the 

information collection associated with 

its final rule ‘‘Petitions for Rulemaking,’’ 

published April 9, 2009. 

DATES: On July 16, 2009, the Office of 

Management and Budget approved the 

information collection requirements for 

the rule published April 9, 2009, at 74 

FR 16104 and effective June 8, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Rachel Edelstein, Director, Policy 

Issuances Division, Office of Policy and 

Program Development, Food Safety and 

Inspection Service, USDA, Washington, 

DC 20250, (202) 720–5627. 

SUPPLEMENTARY INFORMATION: FSIS has 

been delegated the authority to exercise 

the functions of the Secretary as 

specified in the Federal Meat Inspection 

Act (FMIA) (21 U.S.C. 601, et seq.) and 

the Poultry Products Inspection Act 

(PPIA) (21 U.S.C. 451, et seq.). FSIS 

protects the public by verifying that 

meat, poultry, and egg products are safe, 

wholesome, unadulterated, and 

correctly labeled and packaged. 

FSIS is notifying the public that OMB 

has approved the information collection 

associated with the final rule ‘‘Petitions 

for Rulemaking,’’ which published on 

April 9, 2009 (74 FR 16104). The final 

rule amended the FSIS administrative 

regulations by adding a new part 392 

that established regulations governing 

the submission of petitions for 

rulemaking to FSIS. 

OMB had not approved the 

information collection requirements 

associated with the Petitions for 

Rulemaking final rule when the final 

rule published. Therefore, in the 

preamble to the rule, FSIS explained 

that it would collect no information 

associated with rule until the 

information collection request received 

OMB approval (74 FR 16104, 16106– 

16107). OMB approved the information 

collection on July 16, 2009; the OMB 

number is 0583–0136. 

Therefore, FSIS will now begin to 

collect information associated with the 

final rule. In addition, now that FSIS is 

authorized to collect such information, 

effective January 25, 2010 the Agency 

will begin to post all petitions for 

rulemaking that it receives, along with 

any supporting documentation, on the 

FSIS Web site at http:// 

www.fsis.usda.gov/ 

regulations_&_policies/Petitions/ 

index.asp (see 9 CFR 392.6(a)). 

Additional Public Notification 

Public awareness of all segments of 

rulemaking and policy development is 

important. Consequently, in an effort to 

ensure that the public and in particular 

minorities, women, and persons with 

disabilities, are aware of this document, 

FSIS will announce it on-line through 

the FSIS Web page located at http:// 

www.fsis.usda.gov/regulations/ 

2009_Notices_Index/index.asp. 

FSIS also will make copies of this 

Federal Register publication available 

through the FSIS Constituent Update, 

which is used to provide information 

regarding FSIS policies, procedures, 

regulations, Federal Register notices, 

FSIS public meetings, and other types of 

information that could affect or would 

be of interest to our constituents and 

stakeholders. The Update is 

communicated via Listserv, a free e-mail 

subscription service consisting of 

industry, trade, and farm groups, 

consumer interest groups, allied health 

professionals, scientific professionals, 

and other individuals who have 

requested to be included. The Update 

also is available on the FSIS Web page. 

Through Listserv and the Web page, 

FSIS is able to provide information to a 

much broader, more diverse audience. 

In addition, FSIS offers an e-mail 

subscription service which provides 

automatic and customized access to 

selected food safety news and 

information. This service is available at 

http://www.fsis.usda.gov/ 

news_and_events/email_subscription/. 

Options range from recalls to export 

information to regulations, directives 

and notices. Customers can add or 

delete subscriptions themselves, and 

have the option to password protect 

their accounts. 

Done at Washington, DC, on January 19, 

2010. 

Alfred V. Almanza, 

Administrator. 

[FR Doc. 2010–1263 Filed 1–22–10; 8:45 am] 

BILLING CODE 3410–DM–P 

DEPARTMENT OF ENERGY 

10 CFR Part 440 

[Docket No. EEWAP0515] 

RIN 1904–AB97 

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 amending the eligibility 

provisions applicable to multi-unit 

buildings under the Weatherization 

Assistance Program for Low-Income 

Persons. As a result of today’s final rule, 

if a multi-unit building is under an 

assisted or public housing program and 

is identified by the U.S. Department of 

Housing and Urban Development 

(HUD), and included on a list published 

by DOE, that building will meet certain 

income eligibility requirements, and 

will also satisfy one or both of the 

procedural requirements to protect 

against rent increases and undue or 

excessive enhancement of the 

weatherized building, as indicated by 

the list, under the Weatherization 

Assistance Program without the need for 

further evaluation or verification. The 

preamble of today’s final rule also 

provides guidance to States with respect 

to addressing the requirement that the 

benefits of weatherization assistance in 

connection with such rental units, 


jlentini on DSKJ8SOYB1PROD with RULES
3848 Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 

1Weatherization work may include the abatement 

of hazards such as lead, which may be required 

prior to the installation of weatherization materials. 

See, 10 CFR 440.16(h). 

including units where the tenants pay 

for their energy through their rent, will 

accrue primarily to the low-income 

tenants residing in such units. If a 

multi-unit building includes units that 

participate in the Low Income Housing 

Tax Credit (LIHTC) Program, identified 

by HUD, or includes units that 

participate in the U.S. Department of 

Agriculture (USDA) Rural Housing 

Service’s Multifamily Housing 

Programs, and is included on a list 

published by DOE, that building will 

meet the income eligibility requirements 

of the Weatherization Assistance 

Program without the need for further 

evaluation or verification. Today’s final 

rule will reduce the procedural burdens 

on evaluating applications from 

buildings that are part of HUD assisted 

and public housing programs, the 

Federal LIHTC programs, and the USDA 

Rural Development program. 

DATES: This final rule is effective 

February 24, 2010. 

FOR FURTHER INFORMATION CONTACT: 

Claire Broido Johnson, U.S. Department 

of Energy, Office of Energy Efficiency 

and Renewable Energy, Weatherization 

and Intergovernmental Program, EE–2K, 

1000 Independence Avenue, SW., 

Washington, DC 20585–0121, (202) 586– 

1510, e-mail: 

Claire.Johnson@ee.doe.gov, 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: 

Christopher.Calamita@hq.doe.gov. 

SUPPLEMENTARY INFORMATION: 

I. Introduction 

II. Proposed Regulation 

III. Final Rule 

A. Eligibility Requirements Met by 

Identified Housing 

1. Income Requirement 

a. Qualified Assisted Housing and LIHTC 

Programs 

b. USDA Rural Development Program 

2. Protection From Rent Increases 

3. No Undue or Excessive Enhancement to 

the Value of the Dwelling Units 

B. Other Eligibility Requirements 

1. Accrual of Benefits 

2. Permission of Owner or Owner’s Agent 

3. Owner Financial Participation 

C. Other Comments Received 

1. Allowable Expenditures 

2. Prioritization/Promotion of Multi-Family 

Projects 

IV. Regulatory Analysis 

V. Approval of the Office of the Secretary 

I. Introduction 

Sections 411–418 of the Energy 

Conservation and Production Act (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 

persons, families, and 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 subgrantees (e.g., local 

agencies). The subgrantees then provide 

weatherization services to eligible lowincome families. 

In establishing the Weatherization 

Assistance Program, Congress found 

that ‘‘a fast, cost-effective, and 

environmentally sound way to prevent 

future energy shortages in the United 

States while reducing the Nation’s 

dependence on imported energy 

supplies is to encourage and facilitate, 

through major programs, the 

implementation of energy conservation 

and renewable-resource energy 

measures with respect to dwelling 

units.’’ (42 U.S.C. 6861(a)(1)) Congress 

also recognized that many dwellings 

owned or occupied by low-income 

persons are energy inefficient and that 

low-income persons can least afford to 

make the modifications necessary to 

improve the energy efficiency of such 

dwellings. (42 U.S.C. 6861(a)(2)) 

Additionally, Congress directed that 

States, through Community Action 

Agencies and units of general purpose 

local government, should be 

encouraged, with Federal financial and 

technical assistance, to develop and 

support coordinated weatherization 

programs designed to alleviate the 

adverse effects of energy costs on lowincome persons, to supplement other 

Federal programs serving such lowincome persons, and to increase energy 

efficiency. (42 U.S.C. 6861(a)(4)) 

Congress, therefore, stated that the 

purpose of the Weatherization 

Assistance Program is to develop and 

implement an assistance program to 

increase the energy efficiency of 

dwellings owned or occupied by lowincome persons, reduce their total 

residential energy expenditures, and 

improve their health and safety,1

especially low-income persons who are 

particularly vulnerable such as the 

elderly, the handicapped, and children. 

(42 U.S.C. 6861(b)) 

The Weatherization Assistance 

Program statute recognizes that singlefamily dwelling units are potentially 

high-energy-consuming dwelling units, 

and grantees should consider 

appropriate prioritization for such units 

or other high-energy-consuming 

dwelling units. (42 U.S.C. 6864(b)(2)) 

The statute also recognizes that in some 

instances, weatherization efforts under 

the program may be appropriate for 

buildings in which there are multiple 

rental units. (42 U.S.C. 6863(b)(5)) 

Congress recognized that additional 

considerations are necessary when 

evaluating the eligibility of multi-unit 

buildings, as opposed to single-family 

dwellings. In any case in which a 

person requesting weatherization 

assistance from a subgrantee for a 

dwelling that consists of a rental unit or 

rental units, the State, in implementing 

its weatherization program, must ensure 

that— 

• The benefits of weatherization 

assistance in connection with such 

rental units, including units where the 

tenants pay for their energy through 

their rent, will accrue primarily to the 

low-income tenants residing in such 

units; 

• For a reasonable period of time after 

weatherization work has been 

completed on a dwelling containing a 

unit occupied by an eligible household, 

the tenants in that unit (including 

households paying for their energy 

through their rent) will not be subjected 

to rent increases unless those increases 

are demonstrably related to matters 

other than the weatherization work 

performed; 

• The enforcement of the rent 

increase provision is provided through 

procedures established by the State by 

which tenants may file complaints and 

owners, in response to such complaints, 

shall demonstrate that the rent increase 

concerned is related to matters other 

than the weatherization work 

performed; and 

• No undue or excessive 

enhancement will occur to the value of 

such dwelling units.(42 U.S.C. 

6863(b)(5)) 

DOE provided additional direction 

regarding the eligibility of multi-unit 

buildings in the Weatherization 

Assistance Program regulations. Under 

the DOE regulations a subgrantee may 

weatherize a building containing rental 

dwelling units using financial assistance 

for dwelling units eligible for 

weatherization assistance, where: 

• The subgrantee has obtained the 

written permission of the owner or his 

agent; 

• Not less than 66 percent (50 percent 

for duplexes and four-unit buildings, 

and certain eligible types of large multiVerDate Nov<24>2008 16:20 Jan 22, 2010 Jkt 220001 PO 00000 Frm 00002 Fmt 4700 Sfmt 4700 E:\FR\FM\25JAR1.SGM 25JAR1

jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 3849 

2The proposal did not address the requirements 

applicable to permissible expenditures under WAP 

or the required weatherization materials. Those 

requirements, along with the requirements in 10 

CFR Part 440 not addressed in today’s final rule 

remain are not amended. 

family buildings) of the dwelling units 

in the building: 

Æ Are eligible dwelling units, or 

Æ Will become eligible dwelling units 

within 180 days under a Federal, State, 

or local government program for 

rehabilitating the building or making 

similar improvements to the building; 

and 

• The grantee has established 

procedures for dwellings which consist 

of a rental unit or rental units to ensure 

that: 

Æ The benefits of weatherization 

assistance in connection with such 

rental units, including units where the 

tenants pay for their energy through 

their rent, will accrue primarily to the 

low-income tenants residing in such 

units; 

Æ For a reasonable period of time 

after weatherization work has been 

completed on a dwelling containing a 

unit occupied by an eligible household, 

the tenants in that unit (including 

households paying for their energy 

through their rent) will not be subjected 

to rent increases unless those increases 

are demonstrably related to matters 

other than the weatherization work 

performed; 

Æ The enforcement of the rent 

increase provision is provided through 

procedures established by the State by 

which tenants may file complaints, and 

owners, in response to such complaints, 

shall demonstrate that the rent increase 

concerned is related to matters other 

than the weatherization work 

performed; and 

Æ No undue or excessive 

enhancement shall occur to the value of 

the dwelling units. 

10 CFR 440.22(b). An eligible dwelling 

unit is one that is occupied by a family 

unit (1) whose income is at or below 200 

percent of the poverty level, (2) which 

contains a member who has received 

cash assistance payments under certain 

Social Security programs, or applicable 

State or local laws at any time during 

the 12-month period preceding the 

determination of eligibility under the 

Weatherization Assistance Program, or 

(3) if the State elects, is eligible for 

assistance under the Low-Income Home 

Energy Assistance Act, provided that 

such basis is at least 200 percent of the 

poverty level. 10 CFR 440.22(a); See 

also, 42 U.S.C. 6862(7). 

The American Recovery and 

Reinvestment Act of 2009 (Pub. L. 111– 

5) significantly increased the focus of 

weatherization activities by providing 

$5 billion in funding for the WAP 

program. This unprecedented level of 

funding supports the Administration’s 

stated goal of weatherizing 30,000 

homes a month. The increased 

weatherization effort will reduce the 

total residential energy expenditures, 

and improve their health and safety, of 

low-income persons on a much broader 

scale than previously seen, as well as 

additional benefits such as contributing 

to a reduction in greenhouse gas 

emissions due to the increased 

efficiency of the nation’s building stock. 

II. Proposed Regulation 

DOE recognizes that determining the 

eligibility of multi-unit buildings may 

present difficulties to subgrantees in 

evaluating the income eligibility of 

tenants meeting the 200 percent of 

poverty requirement, and that this 

difficulty can be overcome where other 

Federal agencies already have 

procedures in place for determining 

such income eligibility. On May 21, 

2009, DOE published a notice of 

proposed rulemaking (NOPR) to address 

verification of the eligibility 

requirements under the weatherization 

program for multi-family buildings 

participating in other Federal 

programs.2 74 FR 23804. Following the 

publication of the NOPR, DOE issued a 

notice announcing a public meeting that 

was held on June 18, 2009, and that 

extended the comment period to July 6, 

2009. 74 FR 27945. 

In the NOPR, DOE proposed that if a 

multi-unit building is under an assisted 

or public housing program and is 

identified by HUD, and included on a 

list published by DOE, that building 

would meet certain income eligibility 

requirements, and the procedural 

requirements to protect against rent 

increases and undue enhancement of 

the weatherized building would be 

satisfied, under the Weatherization 

Assistance Program without the need for 

further evaluation or verification. 

Additionally, DOE proposed that if a 

multi-unit building includes units that 

participate in the LIHTC Program, 

identified by HUD, and included on a 

list published by DOE, that building 

would meet the income eligibility 

requirements of the Weatherization 

Assistance Program without the need for 

further evaluation or verification. DOE 

requested comment on how States and 

subgrantees may ensure compliance 

with the requirement that benefits of 

weatherization accrue primarily to lowincome tenants that reside in such 

buildings. 74 FR at 23807. 

DOE stated that it believed that the 

proposed rule would reduce the 

procedural burdens on evaluating 

applications from buildings that are part 

of HUD-assisted and public housing 

programs, and the Federal LIHTC 

programs. 74 FR at 23807. The Act 

requires that DOE promulgate 

regulations that, in part, provide 

guidance to assist the States in their 

efforts to ensure that appropriate 

procedures are established to satisfy the 

procedural burdens. (42 U.S.C. 

6863(b)(2)) 

III. Final Rule 

In today’s final rule, DOE is adopting 

the revisions to the Weatherization 

Assistance Program as proposed, with 

two differences. First, DOE is including 

buildings that participate in the USDA 

Rural Development program and are 

identified by USDA, on the list of 

buildings that meet the income 

requirements of the Weatherization 

Assistance Program without the need for 

additional verification. 

Second, an additional list will be 

provided in order to address the current 

State practice for complying with the 

requirement to protect against rent 

increases. Buildings that have three or 

more years remaining under the 

applicable arrangement with HUD will 

be included, as appropriate, on a list 

that demonstrates compliance with the 

income requirements and compliance 

with the procedural requirements under 

the Weatherization Assistance Program 

to protect against rent increases and 

undue enhancement of the weatherized 

building. Buildings that have less than 

three years remaining under the 

applicable arrangement with HUD will 

be included on a separate list, as 

appropriate, to demonstrate compliance 

with the income requirements and 

compliance with the procedural 

requirement to protect against undue 

enhancement. 

Today’s final rule will reduce the 

review and verification that a 

subgrantee must undertake when 

evaluating the eligibility of the 

identified buildings. The purpose of 

today’s final rule is to reduce the burden 

on States and subgrantees when 

evaluating applicability requirements 

for which HUD or USDA has already 

collected and verified the necessary 

data. 


jlentini on DSKJ8SOYB1PROD with RULES
3850 Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 

3For the purposes of this rule, ‘‘Qualified 

Assisted Housing’’ includes public housing projects, 

and assisted housing projects that receive projectbased Section 8 assistance, under the U.S. Housing 

Act of 1937, as amended (42 U.S.C. 1437 et seq.), 

Supportive Housing for the Elderly projects 

receiving HUD assistance under section 202 of the 

Housing Act of 1959 (12 U.S.C. 17012), or 

Supportive Housing for Persons with Disabilities 

under section 811 of the Cranston-Gonzales 

National Affordable Housing Act, as amended (42 

U.S.C. 8013). For the purpose of this rulemaking 

‘‘Qualified Assisted Housing’’ does not include 

projects also benefiting from assistance under 

Section 221(d)(3) and (d)(5), and 236 of the National 

Housing Act (12 U.S.C. 1715l(d)(3) and (d)(5), and 

12 U.S.C. 1715z–1, respectively), except such 

Sections 221(d)(3) and 236 projects with Section 8 

assistance on not less than 66 percent of the multifamily units are included. DOE notes that while 

these excluded projects will not be included in the 

published list of properties under today’s final rule, 

these projects may qualify under the Weatherization 

Assistance Program so long as the projects meet all 

of the necessary requirements, including the 

verified tenant income levels. 

A. Eligibility Requirements Met by 

Identified Housing 

1. Income Requirement 

a. Qualified Assisted Housing and 

LIHTC Programs 

As stated previously under the DOE 

regulations, a subgrantee can only 

weatherize a building containing rental 

dwelling units using financial assistance 

for dwelling units eligible for 

weatherization assistance, where not 

less than 66 percent (50 percent for 

duplexes and four-unit buildings, and 

certain eligible types of large multifamily buildings) of the dwelling units 

in the building meet the income 

eligibility levels. 10 CFR 440.22(b)(2). 

HUD’s Qualified Assisted Housing 3

programs generally serve the population 

for which the Weatherization Assistance 

Program was established to serve. This 

assisted and public housing portfolio 

includes properties that are privately 

owned, but receive some form of HUD 

assistance subject to affordability and 

income requirements. Income targets for 

HUD programs are set in relationship to 

a percentage of area median income— 

generally, 30 to 80 percent of area 

median income. A review of data from 

HUD programs indicates that a large 

majority of residents in HUD assisted 

and public housing would meet the 

income eligibility requirements of the 

Weatherization Assistance Program. 

HUD data show that nationally close to 

100 percent of residents in these 

properties meet the 200 percent income 

requirement, far exceeding the 66 

percent threshold required under DOE’s 

regulation. 10 CFR 440.22(b)(2). 

Moreover, the income verification 

process applicable to the HUD programs 

is rigorous. Under these HUD programs, 

HUD assisted housing owners or public 

housing authorities must determine 

each participating family’s income 

before the family is permitted to move 

into the assisted housing, and at least 

annually thereafter. To ease the existing 

burden of manual verification and 

reduce the potential for human error, 

HUD has developed a sophisticated 

system of third-party income 

verifications, originally designated as 

the Upfront Income Verification (UIV) 

system, now known as the Enterprise 

Income Verification (EIV) system. The 

EIV system is now used voluntarily by 

HUD housing providers, but will 

convert to a mandatory system in 

January 2010. The EIV system, a central 

repository and source for income and 

benefit data, is accessible in a secure 

manner over the internet, for use by 

public housing authorities and owners 

or their agents to improve the accuracy 

of rent and income determinations. 

HUD monitors compliance with tenant 

eligibility requirements on an annual 

basis through management and 

occupancy reviews in addition to the 

submission of tenant data to HUD 

payment systems. Tenant eligibility 

certifications are required in order for 

subsidy payments to be authorized. A 

building owner must verify each 

family’s income, assets, expenses, and 

deductions three times: (1) Prior to 

move-in, (2) as part of the annual 

recertification process, and (3) as a 

result of changes in income allowances, 

or family characteristics reported 

between annual re-certifications. 

Property owners participating in the 

LIHTC Program are directed to utilize 

the income verification process set forth 

Internal Revenue Code Section 42, and 

Internal Revenue Service (IRS) 

Handbook 8823 (Chapter 5), and 

incorrect eligibility determinations may 

adversely affect the utilization of the tax 

credits. 

After the initial determination of 

eligibility, owners, or their agents, are 

required to recertify each low-income 

household at least annually, within 120 

days of the anniversary date of the 

occupancy. The allocating agency, 

typically a state housing finance agency, 

is responsible for monitoring 

compliance with the provisions during 

the affordability period and must report 

the results of monitoring to the IRS. The 

allocating agency is required to perform 

an on-site inspection and a review of 20 

percent of tenant files at least every 

three years. 

The income of the families occupying 

units in buildings under the Qualified 

Assisted Housing and LITHC Programs 

is subject to HUD’s rigorous verification 

processes. Given the nature of the data 

collected by HUD and the income 

verification procedures employed under 

these housing programs, DOE has 

determined that buildings identified by 

HUD as having not less than 66 percent 

(50 percent for duplexes and four-unit 

buildings) of dwelling units occupied by 

family units whose income is at or 

below 200 percent of the poverty level 

would meet the minimum income 

eligibility requirements for multi-unit 

buildings under the Weatherization 

Assistance Program. 

In the NOPR, DOE requested 

comments on its proposal that income 

data collected by HUD under the 

Qualified Assisted Housing and LIHTC 

programs would be sufficient for the 

purpose of demonstrating the income 

requirements of multi-unit buildings 

under the Weatherization Assistance 

Program. The responses DOE received 

supported the proposal and indicated 

that it would reduce burdens on 

property owners, tenants, grantees, and 

subgrantees thereby allowing more of 

the weatherization funds to be used for 

energy improvements. (See LISC, p. 2) 

Some of the commenters indicated 

that a simpler and more effective 

approach would be to raise the income 

eligibility ceiling for the program, 

specifically by making eligible for the 

Weatherization Assistance Program any 

household that meets the National 

Housing Act definition of ‘‘low-income.’’ 

DOE did not propose to amend the 

definition of ‘‘low-income’’ in the NOPR 

and such an amendment as suggested by 

commenters would be outside the scope 

of notice for this rulemaking. 

DOE also received comments 

regarding the exclusion of Section 

221(d)(3) and (d)(5) Below Market 

Interest Rate (BMIR), and Section 236 

programs from eligibility. The 

comments expressed that these 

programs carry income restrictions and 

also typically use project-based Section 

8 subsidies. The comments additionally 

indicated that residents using the 

Section 8 subsidies have the same 

income reporting requirements as other 

Section 8 subsidy holders. Commenters 

remarked that while not all Section 

221(d)(3) BMIR and Section 236 

properties have Section 8 housing, to 

the extent that they do, these properties 

should meet the definition of ‘‘qualified 

assisted housing.’’ Some of the 

commenters suggested that the 

definition of ‘‘qualified assisted 

housing’’ be revised to clarify that 

Section 221(d)(3) BMIR and Section 236 

buildings are only excluded from 

consideration as qualified assisted 

housing if fewer than 66 percent of the 

units have project-based Section 8 

assistance. This issue was also raised at 

the public meeting held on June 18, 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 3851 

2009. At that meeting, HUD stated that 

every family that receives housing 

assistance must certify their income 

before they move in and must recertify 

every year thereafter. Further, owners 

are required to monitor, certify, and 

maintain records of compliance with 

tenant eligibility. HUD also stated that 

nearly all of the residents within its 

programs being considered eligible meet 

the 200 percent above poverty line 

requirement stated in the public law, 

including the Section 221(d)(3) and 

Section 236 properties having Section 8 

housing assistance under discussion. 

DOE notes that Section 221(d)(3) and 

Section 236 may qualify under the 

Weatherization Assistance Program so 

long as the projects meet all of the 

necessary requirements, including the 

verified tenant income levels. To the 

extent that these properties have 

project-based assistance under the 

Section 8 program on not less than 66 

percent of the multi-family units (50 

percent for duplexes and four-unit 

buildings), and HUD includes such 

buildings in the list of properties 

meeting the income requirements of the 

Weatherization Assistance Program, 

Section 8 properties will be included in 

today’s final rule. 

After consideration of the comments, 

DOE concludes in today’s final rule that 

the income data collected by HUD 

would be sufficient for the purpose of 

demonstrating the income requirements 

of multi-unit buildings under the 

Weatherization Assistance Program. 

b. USDA Rural Development Program 

DOE also received a number of 

comments indicating that buildings that 

participate in the USDA Rural Housing 

Service’s Multifamily Housing Programs 

undergo equally rigorous income 

verifications. The income verification 

process for the Rural Housing Service’s 

Multifamily Housing Programs is very 

similar to that of HUD. The USDA Rural 

Housing Service’s Multifamily Housing 

Programs utilize HUD’s income, asset 

and deduction requirements for 

eligibility to reside in Rural Housing 

Service multifamily properties and to 

receive the benefits of Rural 

Development’s Rental Assistance 

subsidy programs. Property owners and 

their management agents are responsible 

for determining a family’s income when 

they apply for housing. USDA performs 

an annual audit of a statistical sample 

of tenant files to ensure that the rent and 

subsidy are calculated properly, with 

adequate supporting documentation. In 

addition, USDA field staff performs 

periodic supervisory visit inspections 

where tenant files are selected at 

random and audited for confirmation of 

documentation. In the 26 states that 

permit wage matching, USDA has 

initiated memoranda of understanding 

with these individual departments of 

labor to receive confirmation 

information on wages reported. USDA 

field staff provides such confirmation to 

property managers, who check the data 

against that reported by tenants. USDA 

multifamily regulations require that 

tenants recertify their income annually, 

and whenever they have a monthly 

income change of $100 or more. 

Unlike HUD, USDA maintains data on 

participation in the Rural Housing 

Service’s Multifamily Housing Programs 

at a project level, as opposed to a 

building level. A single project may be 

comprised of more than one building. 

As a result of maintaining income data 

on a project level without knowing the 

breakdown of the income of tenants on 

a per building basis, a project identified 

by USDA as having 66 percent of the 

dwelling units occupied by low-income 

tenants does not ensure that each 

building in that project meets the 66 

percent threshold. For example, if a 

project consisted of three buildings with 

ten units each, and two of the three 

buildings were occupied solely by lowincome tenants, the project would have 

66 percent of the dwelling units 

occupied by low-income tenants. 

However, the third building could have 

no low-income tenants. 

The purpose of the proposed rule was 

to minimize duplicative verification 

requirements among Federal agencies. 

While the proposed rule considered 

coordinating WAP requirements with 

only HUD data, income data collected 

and verified by USDA provide a similar 

opportunity to minimize duplicative 

income verification requirements. DOE 

has determined that buildings identified 

by USDA as having 100 percent of 

dwelling units occupied by family units 

whose income is at or below 200 

percent of the poverty level would meet 

the minimum income eligibility 

requirements for multi-unit buildings 

under the Weatherization Assistance 

Program. In order to ensure that the 

buildings identified by USDA meet the 

66 percent requirement at the building 

level, the list of buildings identified by 

USDA will include only those projects 

for which 100 percent of the units are 

occupied by families that meet the 

Weatherization Assistance Program 

income requirement. 

2. Protection From Rent Increases 

Under the Weatherization Assistance 

Program, a grantee must establish 

procedures that ensure that for a 

reasonable period of time after 

weatherization work has been 

completed on a dwelling containing a 

unit occupied by a low-income tenant, 

the tenant in that unit will not be 

subjected to rent increases unless those 

increases are demonstrated to be related 

to matters other than the weatherization 

work performed. 10 CFR 440.22(b)(3)(ii). 

The enforcement of this provision is 

provided through procedures 

established by the State by which 

tenants may file complaints, and owners 

in response to such complaints must 

demonstrate that the rent increase 

concerned is related to matters other 

than weatherization. 10 CFR 

440.22(b)(3)(iii). Under the Qualified 

Assisted Housing programs, tenant rents 

are capped at 30 percent of their 

income, so tenants would not be subject 

to rent increases as a result of the 

weatherization. 

DOE has proposed that the 

restrictions on rent for units in 

buildings participating in the Qualified 

Assisted Housing Programs would 

provide the assurance required under 

the Weatherization Assistance Program 

that for a reasonable period of time after 

weatherization work is completed on a 

dwelling occupied by a low-income 

family unit, rent will not increase. In the 

proposed rule, DOE requested 

comments on this issue. DOE also 

requested comments on its 

understanding that the LIHTC Program 

does not offer sufficiently uniform 

protections regarding rent increases so 

as to permit DOE to determine that 

buildings under the LIHTC Program 

would meet the rent control 

requirement of the Weatherization 

Assistance Program. 

In response, DOE received comments 

supportive of a DOE determination that 

the Qualified Assisted Housing Program 

and LIHTC Program sufficiently protect 

low-income tenants from rent increases 

to satisfy the rent control requirement. 

One of the comments noted that 

currently some States require rent 

control provisions to remain in place for 

three years as a condition of 

weatherizing multi-family housing. If a 

HUD building were to have its rent 

structure expire within three years, the 

proposed categorical assurance would 

result in a less rigorous rent restriction 

on the HUD building than States apply 

to other multi-family buildings. 

In today’s final rule, DOE has 

determined, based on the nature of the 

conditions for property owners under 

the Qualified Assisted Housing 

Programs, that generally, the Qualified 

Assisted Housing Program sufficiently 

protects low-income tenants from rent 

increases so as to satisfy the 

requirement that grantees under the 

Weatherization Assistance Program 


jlentini on DSKJ8SOYB1PROD with RULES
3852 Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 

establish procedures to protect lowincome tenants against rent increases 

resulting from weatherization. However, 

DOE recognizes that some States may 

currently require a three-year 

commitment from property owners to 

protect against rent increases resulting 

from the weatherization work. 

To address the issue of current 

practice in some States, DOE will 

publish segregated information on the 

list of eligible multi-unit buildings 

identified by HUD in order to indicate 

which buildings have a minimum of 

three years remaining on their 

commitment with HUD. The properties 

included on the list of buildings that 

have less than three years remaining on 

their commitment with HUD will satisfy 

the income requirements and the 

requirement that limits undue 

enhancement. The properties included 

on the list that includes buildings with 

three or more years remaining on their 

commitment with HUD will satisfy the 

income eligibility requirements. They 

will also satisfy both of the procedural 

requirements to protect against rent 

increases and undue or excessive 

enhancement of the weatherized 

building, without the need for further 

evaluation or verification. 

It is important to note that today’s 

rule does not require a minimum of 

three years remaining on a building’s 

commitment with HUD in order to 

comply with the rent control 

requirement under the Weatherization 

Assistance Program. A State may 

determine that a different timeframe is 

acceptable. However, in recognizing that 

some States currently require a threeyear commitment from property owners 

to demonstrate compliance with the rent 

control provisions, the list of properties 

to be published by DOE will distinguish 

those for which there is at least three 

years remaining on the commitment to 

the Qualified Assisted Housing 

programs. For those properties that have 

less than three years remaining, the list 

will indicate the amount of time 

remaining under the commitment with 

HUD to allow States to determine 

whether that period is sufficient to 

satisfy the rent control requirement 

established by the State. 

With regard to the LIHTC program, a 

comment indicated that although the 

LIHTC program provides for rent 

control, it does not have the same 

uniform restrictions as those associated 

with the Qualified Assisted Housing 

programs. The commenter stated that 

the fact that the LIHTC program does 

not have the same restrictions on rent 

control could be resolved with an 

agreement between the owner and the 

weatherization subgrantee that limits 

rent increases according to a standard 

acceptable to DOE or the subgrantee. 

With respect to the issue of rent control 

in the LIHTC Program, DOE received 

comments indicating that for LIHTC 

properties, there is no direct cost-based 

rent setting under the LIHTC program 

and that the total tenant housing cost is 

capped by a formula based on the area 

median income. Commenters noted that 

while in practice LIHTC property rents 

are limited by the lower of the cap or 

market rents and therefore unlikely to 

increase as a result of weatherization 

costs, a rent controlling covenant 

running with the unit receiving 

weatherization funds could be an 

option. Another comment on the issue 

of rent control in the LIHTC program 

urged DOE to allow state agencies 

administering the Weatherization 

Assistance Program the flexibility to 

determine the appropriate rent control 

procedures. 

DOE recognizes that properties under 

the LIHTC program may have various 

rent control conditions, however, the 

extent and nature of those conditions 

may not be uniform throughout the 

program. Under today’s final rule, 

properties participating in the LIHTC 

program will not be included in the list 

of properties that meet the rent control 

provisions of the Weatherization 

Assistance Program without a need for 

additional conditions on the property 

owner. For the properties under the 

LIHTC program, the State, or 

weatherization grantee, maintains 

flexibility in establishing the necessary 

rent control conditions. After 

considering the comments, DOE 

maintains its preliminary understanding 

that the LIHTC Program does not 

provide sufficiently uniform protections 

against rent increases so that DOE could 

determine that buildings under the 

LIHTC Program would meet the rent 

control requirement of the 

Weatherization Assistance Program. 

3. No Undue or Excessive Enhancement 

to the Value of the Dwelling Units 

Weatherization of a building 

containing rental units requires that the 

applicable grantee ensure that no undue 

or excessive enhancement occur to the 

value of the dwelling units. 10 CFR 

440.22(b)(3)(iv). The expenditures 

allowed under the Weatherization 

Assistance Program help focus 

enhancements on those that provide 

weatherization benefits. For example, 

repairs to a dwelling unit must be 

necessary to make the installation of 

weatherization materials effective. 10 

CFR 440.18(d)(9). Moreover, for 

buildings that are in the Qualified 

Assisted Housing Programs, HUD 

controls the capital improvements that 

may be made. In the NOPR, DOE 

requested comments on whether HUD 

control of improvements to buildings 

under the Qualified Assisted Housing 

programs would ensure that no undue 

or excessive enhancement would occur 

as a result of weatherization. DOE also 

requested comment on whether similar 

and sufficient controls were present 

under the LIHTC Program to allow DOE 

to make a similar finding for the LIHTC 

Program. 

Commenters expressed their support 

for a DOE determination that controls 

over buildings in the Qualified Assisted 

Housing and LIHTC would ensure that 

no undue or excessive enhancement 

would occur as a result of 

weatherization. One commenter noted 

that with regard to the excessive 

enhancement issue, LIHTC properties 

should be treated in the same manner as 

Qualified Assisted Housing properties. 

The commenter added that the existence 

of maximum rental rates and long-term 

use restrictions in the LIHTC program 

acted as strong disincentives to the 

undertaking of excessive enhancements 

and for those reasons, the commenter 

urged DOE to conclude that LIHTC 

properties have controls in place to 

ensure no undue or excessive 

enhancement. This commenter 

indicated that DOE could alternatively 

consider defining ‘‘excessive 

enhancement’’ by reference to a savings 

to investment ratio over the lifecycle of 

the improvement. 

DOE recognizes that some of the 

conditions placed on property owners 

under the LIHTC program may make it 

unlikely for weatherization work to 

result in undue or excessive 

enhancements to the property. However, 

in some cases, additional conditions 

may be required in order to assure 

compliance with this requirement. 

Because of the variability of 

arrangements under the LIHTC program, 

DOE is not including properties under 

the LIHTC program on the published list 

of properties that comply with the ‘‘no 

undue or excessive enhancement 

requirement’’ without need for further 

conditions or verification. 

Based on review of the public 

comments, DOE has determined in 

today’s final rule that the existing limits 

on permissible work under the 

Weatherization Assistance Program and 

the HUD control of improvements under 

the Qualified Assisted Housing 

programs provide the necessary 

assurances that no undue or excessive 

enhancement will occur as a result of 

the weatherization of the buildings 

identified by HUD. 


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Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 3853 

B. Other Eligibility Requirements 

1. Accrual of Benefits 

Under the Weatherization Assistance 

Program regulations, a grantee must 

ensure that for multi-unit buildings the 

benefits of weatherizing a building that 

consists of rental units, including rental 

units where the tenant pays for energy 

through rent, accrue primarily to the 

low-income tenants. (42 U.S.C. 

6863(b)(5)(A); 10 CFR 440.22(b)(3)(i)). 

The payment of utilities in Qualified 

Assisted Housing Programs and LIHTC 

can be structured in a number of ways. 

For centrally-metered utilities, utility 

expenditures are included in monthly 

rent payments. For individually- or submetered utilities, tenants may receive a 

utility allowance, or the utility 

allowance can be provided directly to 

the utility company. Given the 

variability with how the benefits of 

weatherization, particularly utility 

savings, could be realized by tenants in 

the Qualified Assisted Housing and 

LIHTC Programs, a request for 

weatherization of a multi-unit building 

on the list provided by HUD would 

need to demonstrate that the benefits of 

the weatherization work accrue 

primarily to the low-income tenants. 

Compliance with the requirement for 

the benefits of weatherization to accrue 

to the low-income tenants can be 

demonstrated more readily when the 

weatherization results in reduced utility 

costs for the tenant. Under the Qualified 

Assisted Housing programs and the 

LIHTC Program, tenants may not 

directly pay for all or part of their utility 

bills. In instances in which tenants of a 

building do not directly pay utility costs 

and have capped rents, the property 

owner needs to demonstrate that 

benefits accrue primarily to the tenant 

of the weatherized units other than by 

the benefit of reduced utility bills. In the 

NOPR DOE requested comments on how 

to ensure compliance with the 

requirement that benefits of 

weatherization accrue primarily to the 

low-income tenants, including 

information on procedures that may be 

used by States and subgrantees to 

determine that the accrual provision is 

satisfied in the context of buildings in 

the Qualified Assisted Housing 

programs and LIHTC Program. 

DOE finds that public comments 

provided helpful guidance on how 

States could potentially meet the 

requirement of ensuring that the 

benefits accrue primarily to low-income 

tenants. Some commenters submitted 

that reduced utility bills were not the 

only indication of a benefit accruing 

primarily to the low-income tenant and 

treating them as such would run 

contrary to the realities of assisted rental 

housing and undermine the work many 

States have done to address housing and 

resident needs. The commenters urged 

DOE to determine that this accrual 

requirement could be met by the safer, 

healthier living environment lowincome tenants experience as a result of 

weatherization. (Nat’l Housing Law 

Project, SAHF, OH Partners for 

Affordable Energy) Commenters also 

asserted that this requirement could be 

met by the preservation of the property 

as affordable rental housing. They 

indicated that weatherization funds 

help these properties manage rising 

energy costs and therefore, protect the 

long term viability and availability of 

affordable housing, thereby primarily 

benefiting current and future lowincome tenants. (See SAHF, p. 3–4; OH 

Partners for Affordable Energy, p. 4) 

One commenter stated that in strong 

markets, properties are affordable only 

because of control or long-term use 

restrictions. Some comments urged DOE 

to determine that the accrual 

requirement could be met if a non-profit 

owns or controls the property or the 

property is subject to a low-income use 

restriction for a certain period of time. 

(See SAHF, p. 3; NCLC, p.14) DOE 

agrees that procedures under which 

weatherization work incorporates use 

agreements that extend the affordable 

character of the project for the lowincome tenants can be relied on by 

States, in part, to ensure the accrual of 

benefits of the weatherization to lowincome tenants. 

Other commenters expressed that 

while the reduction of energy costs was 

not the only benefit low-income tenants 

could derive from weatherization, it was 

the most important. (See NCLC/TLSC, p. 

4–5) They added that in instances where 

low-income tenants pay for utilities as 

part of their capped rent, the financial 

benefits resulting from weatherization 

accrue primarily to owners rather than 

low-income tenants. (See NCLC/TLSC, 

p. 4–5) In instances where low-income 

tenants pay for their own utilities, the 

commenters asserted that the benefits 

would accrue primarily to the tenants. 

DOE has determined that the 

Qualified Assisted Housing programs, in 

and of themselves, may not provide the 

conditions necessary to ensure that the 

benefits of weatherization accrue 

primarily to the low-income tenants. 

This was recognized by many of the 

commenters who provided examples of 

instances in which the benefits could be 

demonstrated as accruing primarily to 

the low-income tenants through the 

imposition of conditions in addition to 

those present under the Qualified 

Assisted Housing Programs. 

Administering State agencies have the 

responsibility to ensure that the benefits 

of weatherization activities at Qualified 

Assisted Housing properties accrue 

primarily to the low-income tenants. 

Thus, States may establish requirements 

and procedures for subgrantees to 

demonstrate that this standard is met. 

Given the variability with how utility 

savings could be realized by tenants in 

the Qualified Assisted Housing and 

LIHTC programs, a request for 

weatherization of a multi-unit building 

that is on the list provided by HUD 

would still need to demonstrate to the 

State (or subgrantee administering the 

program) that the benefits of the 

weatherization work accrue primarily to 

the low-income tenants. Demonstration 

of the benefits of weatherization 

accruing primarily to the low-income 

tenants can include reduced utility 

costs, and also a combination of longerterm preservation of the property as 

affordable housing, continued 

monitoring by or on behalf of DOE of 

the Weatherization Assistance 

Program’s statutorily required 

protection from rent increases to low 

income tenants, and the benefits of a 

healthier living environment (e.g., 

improved livability from thermal 

insulation, reductions in drafts, and 

fewer problems with allergens in living 

units). 

Commenters cited procedures 

currently employed by States to ensure 

that the benefits of weatherization 

accrue primarily to low-income tenants. 

For example, the State of Washington 

recognizes ‘‘preserved low-incomehousing, added comfort, and improved 

indoor air quality’’ as direct benefits to 

tenants, and requires documentation of 

the direct benefits that satisfy the 

accrual of benefits requirement. The 

approach taken by the State of 

Washington provides one model 

example of how States can ensure that 

the benefits of weatherization accrue 

primarily to low-income tenants. DOE is 

considering describing this and possibly 

other existing procedures in guidance as 

a non-inclusive list of examples of 

weatherization benefit accrual to lowincome tenants. States may also 

consider other ways in which owner 

contributions or energy savings could be 

structured such that the benefits of 

weatherization can be shown to accrue 

primarily to the low-income tenants. 

These may include investments in 

capital expenditures such as energy 

efficient appliances, modernization of 

apartments, health and safety 

improvements, improved security 

systems, and other upgrades to the 

physical plant, as well as services such 

as such as broadband access, job 


jlentini on DSKJ8SOYB1PROD with RULES
3854 Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 

4 It is important to note that rules that transfer 

Federal dollars often have opportunity costs or 

benefits in addition to the budgetary dollars spent 

because they can affect incentives, and thus lead to 

changes in the way people behave (e.g., in their 

investment decisions). For example, OMB Circular 

A–94 suggests that transfers that result from 

increased taxes may be associated with a marginal 

excess burden (deadweight loss) of 25 cents per 

dollar of Federal revenue collected (p. 12). 

training through local community 

centers, and, access to local community 

facilities or after-school programs. States 

may consider these examples, a 

combination of these examples, or other 

conditions when considering how to 

ensure that the benefits of the 

weatherization accrue primarily to the 

low-income tenants. 

2. Permission of Owner or Owner’s 

Agent 

Today’s final rule will not alleviate 

the need for a subgrantee to obtain the 

written permission of the owner or the 

owner’s agent or to confirm that a 

dwelling unit is not designated for 

acquisition or clearance by Federal, 

State, or local program within 12 

months from the date of the 

weatherization. 

3. Owner Financial Participation 

DOE received a comment asserting 

that requiring additional owner 

contributions to participate in the 

weatherization program will create an 

additional and undue burden on the 

owner. (OH Dept. of Development) This 

commenter added that the owner 

contribution should be waived and 

required at the discretion of the State 

Home Weatherization Assistance 

Program recipient, and that it also be 

based on a financial analysis of the 

housing finance agency. (OH Dept. of 

Development) Today’s final rule does 

not amend the regulatory provision 

regarding financial participation from 

building owners. As stated in the 

regulation, a State may require financial 

participation where feasible from 

owners of multi-family buildings. See, 

10 CFR 440.22(d), emphasis added. 

C. Other Comments Received 

1. Allowable Expenditures 

Some comments expressed interest in 

DOE addressing the restriction that 

prohibits weatherization funds from 

being used in buildings that have 

received funding since September 30, 

1993. 10 CFR 440.18(f)(2)(iii). The 

commenters remarked that 

technological improvements and 

escalating energy prices since 1993 

justify allowing weatherization 

programs to revisit properties that 

already received assistance. 

DOE notes that the prohibition on the 

use of weatherization funds from being 

used in certain buildings that have 

received funds in previous years is 

established by statute and not subject to 

amendment by DOE. (See, 42 U.S.C. 

6865(c)(2)). 

2. Prioritization/Promotion of MultiFamily Projects 

Some commenters presented the view 

that the rule could result in agencies 

providing services favoring multifamily 

properties than other types of 

properties. They urged that the decision 

on what types of dwellings to 

weatherize remain a local one because 

local agencies are most familiar with the 

needs of their communities. (See OH 

Partners for Affordable Energy, others) 

Today’s final rule does not require 

States to establish a particular 

prioritization with regard to the 

weatherization of multi-family 

buildings. Today’s final rule minimizes 

procedural burdens on those States and 

subgrantees that choose to weatherize 

multi-family buildings for which the 

Federal government has data to support 

the eligibility of those buildings under 

DOE’s Weatherization Assistance 

Program. 

IV. Regulatory Analysis 

A. Review Under Executive Order 12866 

Today’s final rule has been 

determined to be an economically 

significant regulatory action under 

section 3(f)(1) of Executive Order 12866, 

‘‘Regulatory Planning and Review,’’ 58 

FR 51735 (October 4, 1993). 

Accordingly, this action was subject to 

review under that Executive Order by 

the Office of Information and Regulatory 

Affairs of the Office of Management and 

Budget (OMB). 

The American Recovery and 

Reinvestment Act of 2009 (Pub. L. 111– 

5; Recovery Act) provided $5 billion for 

the Weatherization Assistance Program. 

Funding for grants under the 

Weatherization Assistance Program at a 

level greater than $100 million makes 

this rulemaking economically 

significant under the Executive Order. 

The weatherization grants provided 

under this program constitute transfer 

payments. In this case, the payments are 

from the Government to grantees (e.g., 

States, units of general purpose of local 

government, and community action 

agencies), and the payments do not 

represent a change in the total resources 

available to society. The grants do 

generate impacts such as weatherization 

benefits, however, which are discussed 

qualitatively in this final rule.4 See OMB 

Circular A–4, at 14, 38 and 46. Given 

that today’s rule is finalized prior to 

complete expenditure of the Recovery 

Act funds by grantees and subgrantees 

under the Weatherization Assistance 

Program, today’s final rule could impact 

the process used by grantees and 

subgrantees to evaluate applications 

with respect to multi-unit buildings that 

are covered by this final rule for the 

purpose of distributing funds provided 

under the Recovery Act. Such changes 

in the process for application evaluation 

have the potential to cause a change in 

the distribution of Recovery Act 

funding, which may constitute a transfer 

between different non-Federal entities. 

Such impacts would also be a 

consideration when categorizing this 

rulemaking under Executive Order 

12866. 

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. Today’s action revises 

the eligibility requirements that apply to 

the administration of the Weatherization 

Assistance Program grants by grantees 

and subgrantees. Because the matter of 

today’s action relates to grants, it is not 

subject to the notice and comment 

provisions of the Administrative 

Procedure Act. 5 U.S.C. 553(a)(2). 

Therefore, the analytical requirements 

of the Regulatory Flexibility Act do not 

apply. Although DOE requested 

comment, today’s final rule on the 

eligibility of multi-unit buildings under 

the Weatherization Assistance Program 

is not subject to any legal requirement 

to publish a general notice of proposed 

rulemaking. 

C. Review Under the National 

Environmental Policy Act of 1969 

DOE has determined that today’s 

action is covered under the Categorical 

Exclusion found in DOE’s National 


jlentini on DSKJ8SOYB1PROD with RULES
Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 3855 

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 action 

amends the eligibility provisions for 

multi-unit buildings under the 

Weatherization Assistance Program. The 

regulations will not have direct 

environmental impacts. 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 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 preemptive 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 action 

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 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 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 


jlentini on DSKJ8SOYB1PROD with RULES
3856 Federal Register / Vol. 75, No. 15 / Monday, January 25, 2010 / Rules and Regulations 

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. Today’s 

regulatory action amends the eligibility 

provisions applicable to multi-unit 

buildings under the Weatherization 

Assistance Program. DOE has reviewed 

today’s action under Executive Order 

13175 and has determined that it is 

consistent with applicable policies of 

that Executive Order. 

K. Congressional Notification 

As required by 5 U.S.C. 801, DOE will 

submit to Congress a report regarding 

the issuance of today’s final rule prior 

to the effective date set forth at the 

outset of this notice. The report will 

state that it has been determined that 

the rule is a ‘‘major rule’’ as defined by 

5 U.S.C. 804(2). DOE also will submit 

the supporting analyses to the 

Comptroller General in the U.S. 

Government Accountability Office 

(GAO) and make them available to each 

House of Congress. 

V. 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, 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 January 14, 

2010. 

Catherine R. Zoi, 

Assistant Secretary, Energy Efficiency and 

Renewable Energy. 

■ For the reasons set forth in the 

preamble, DOE is amending Part 440 of 

chapter II of title 10, Code of Federal 

Regulations to read as follows: 

PART 440—WEATHERIZATION 

ASSISTANCE PROGRAM FOR LOWINCOME 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 440.22 is amended by 

adding paragraph (b)(4) to read as 

follows: 

§ 440.22 Eligible dwelling units. 

* * * * * 

(b) * * * 

(4)(i) A building containing rental 

dwelling units meets the requirements 

of paragraph (b)(2), and paragraphs 

(b)(3)(ii) and (b)(3)(iv), of this section if 

it is included on the most recent list 

posted by DOE of Assisted Housing and 

Public Housing buildings identified by 

the U.S. Department of Housing and 

Urban Development as meeting those 

requirements. 

(ii) A building containing rental 

dwelling units meets the requirements 

of paragraph (b)(2), and paragraph 

(b)(3)(iv), of this section if it is included 

on the most recent list posted by DOE 

of Assisted Housing and Public Housing 

buildings identified by the U.S. 

Department of Housing and Urban 

Development as meeting those 

requirements. 

(iii) A building containing rental 

dwelling units meets the requirement of 

paragraph (b)(2) of this section if it is 

included on the most recent list posted 

by DOE of Low Income Housing Tax 

Credit buildings identified by the U.S. 

Department of Housing and Urban 

Development as meeting that 

requirement and of Rural Housing 

Service Multifamily Housing buildings 

identified by the U.S. Department of 

Agriculture as meeting that requirement. 

(iv) For buildings identified under 

paragraphs (b)(4)(i), (ii) and (iii) of this 

section, States will continue to be 

responsible for ensuring compliance 

with the remaining requirements of this 

section, and States shall establish 

requirements and procedures to ensure 

such compliance in accordance with 

this section. 

* * * * * 

[FR Doc. 2010–1300 Filed 1–22–10; 8:45 am] 

BILLING CODE 6450–01–P 

DEPARTMENT OF HOMELAND 

SECURITY 

Coast Guard 

33 CFR Part 117 

[Docket No. USCG–2009–0453] 

RIN 1625–AA09 

Drawbridge Operation Regulations; 

Great Egg Harbor Bay, Between 

Beesleys Point and Somers Point, NJ 

AGENCY: Coast Guard, DHS. 

ACTION: Final rule. 

SUMMARY: The Coast Guard is changing 

the regulations that govern the operation 

of the US Route 9/Beesleys Point Bridge 

over Great Egg Harbor Bay, at mile 3.5, 

between Beesleys Point and Somers 

Point, NJ. This rule will allow the 

drawbridge to operate on an advance 

notice basis during specific dates and 

times of the year. The rule change will 

result in more efficient use of the bridge 

during dates and times of infrequent 

transit. 

DATES: This rule is effective February 

24, 2010. 

ADDRESSES: Comments and related 

materials received from the public, as 

well as documents mentioned in this 

preamble as being available in the 

docket, are part of docket USCG–2009– 

0453 and are available online by going 

to http://www.regulations.gov, inserting 

USCG–2009–0453 in the ‘‘Keyword’’ 

box, and then clicking ‘‘Search.’’ This 

material is also available for inspection 

or copying at the Docket Management 

Facility (M–30), U.S. Department of 

Transportation, West Building Ground 

Floor, Room W12–140, 1200 New Jersey 

Avenue, SE., Washington, DC 20590, 

between 9 a.m. and 5 p.m., Monday 

through Friday, except Federal holidays. 

FOR FURTHER INFORMATION CONTACT: If 

you have questions on this rule, call or 

e-mail Sandra S. Elliott, Bridge 

Administration Branch, Fifth Coast 

Guard District, telephone 757–398– 

6557, e-mail Sandra.S.Elliott@uscg.mil. 

If you have questions on viewing the 

docket, call Renee V. Wright, Program 

Manager, Docket Operations, telephone 

202–366–9826. 

SUPPLEMENTARY INFORMATION: 

Regulatory Information 

On June 24, 2009, we published a 

notice of proposed rulemaking (NPRM) 

entitled Drawbridge Operation 

Regulations; Great Egg Harbor Bay, 

between Beesleys Point and Somers 

Point, NJ, in the Federal Register (74 FR 

30031). We received two comments on 


jlentini on DSKJ8SOYB1PROD with RULES