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contains regulatory documents having general

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Rules and Regulations Federal Register

12535 

Vol. 74, No. 56 

Wednesday, March 25, 2009 

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: jean.diggs@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. 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 


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1Calculation 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. 

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. 

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 lowincome 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 


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2The 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. 

the U.S. territories’ (1) Number of lowincome 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 longterm 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. 

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. 


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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 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 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. 


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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. 

■ 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 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 440.3 is amended by 

revising the definitions of ‘‘low income’’ 

and ‘‘State’’ to read as follows: 

§ 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 monthperiod 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. 

* * * * * 

■ 3. Section 440.10 is amended by: 

■ 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’’; 

■ b. Revising Table 1 in paragraph (b)(1) 

and paragraph (c) to read as follows: 

§ 440.10 Allocation of funds. 

* * * * * 

(b) * * * 

(1) * * * 

BASE ALLOCATION TABLE

State Base 

allocation 

Alabama ................................ $1,636,000 

Alaska ................................... 1,425,000 

Arizona .................................. 760,000 

Arkansas ............................... 1,417,000 

California ............................... 4,404,000 

Colorado ............................... 4,574,000 

Connecticut ........................... 1,887,000 

Delaware ............................... 409,000 

District of Columbia .............. 487,000 

Florida ................................... 761,000 

Georgia ................................. 1,844,000 

Hawaii ................................... 120,000 

Idaho ..................................... 1,618,000 

Illinois .................................... 10,717,000 

Indiana .................................. 5,156,000 

Iowa ...................................... 4,032,000 

Kansas .................................. 1,925,000 

Kentucky ............................... 3,615,000 

Louisiana .............................. 912,000 

Maine .................................... 2,493,000 

Maryland ............................... 1,963,000 

Massachusetts ...................... 5,111,000 

Michigan ............................... 12,346,000 

Minnesota ............................. 8,342,000 

Mississippi ............................ 1,094,000 

Missouri ................................ 4,615,000 

Montana ................................ 2,123,000 

Nebraska .............................. 2,013,000 

Nevada ................................. 586,000 

New Hampshire .................... 1,193,000 

New Jersey ........................... 3,775,000 

New Mexico .......................... 1,519,000 

New York .............................. 15,302,000 

North Carolina ...................... 2,853,000 

North Dakota ........................ 2,105,000 

Ohio ...................................... 10,665,000 

Oklahoma ............................. 1,846,000 

Oregon .................................. 2,320,000 

Pennsylvania ........................ 11,457,000 

Rhode Island ........................ 878,000 

South Carolina ...................... 1,130,000 

South Dakota ........................ 1,561,000 

Tennessee ............................ 3,218,000 

Texas .................................... 2,999,000 

Utah ...................................... 1,692,000 

Vermont ................................ 1,014,000 

Virginia .................................. 2,970,000 

Washington ........................... 3,775,000 

West Virginia ........................ 2,573,000 

Wisconsin ............................. 7,061,000 

Wyoming ............................... 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 


sroberts on PROD1PC70 with RULES
12540 Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Rules and Regulations 

1Preventing Undue Discrimination and 

Preference in Transmission Service, Order No. 890, 

72 FR 12,266 (March 15, 2007), FERC Stats. & Regs. 

¶ 31,241, order on reh’g, Order No. 890–A, 73 FR 

2984 (January 16, 2008), FERC Stats. & Regs. ¶ 

31,261 (2007), order on reh’g, Order No. 890–B, 123 

FERC ¶ 61,299 (2008). 

2Promoting Wholesale Competition Through 

Open Access Non-Discriminatory Transmission 

Services by Public Utilities; Recovery of Stranded 

Costs by Public Utilities and Transmitting Utilities, 

Order No. 888, 61 FR 21,540 (May 10, 1996), FERC 

Stats. & Regs. ¶ 31,026 (1996), order on reh’g, Order 

No. 888–A, 62 FR 12,274 (Mar. 14, 1997), FERC 

Stats. & Regs. ¶ 31,048 (1997), order on reh’g, Order 

No. 888–B, 81 FERC ¶ 61,248 (1997), order on reh’g, 

Order No. 888–C, 82 FERC ¶ 61,046 (1998, aff’d in 

relevant part sub nom. Transmission Access Policy 

Study Group v. FERC, 225 F.3d 667 (DC Cir. 

2000)(TAPS v. FERC), aff’d sub nom. New York v. 

FERC, 535 U.S. 1 (2002). 

3Order No. 890–B at P 15. 

percentage as total program allocations 

for the fiscal year fall below 

$209,724,761. 

* * * * * 

■ 4. Section 440.18 is amended by 

revising paragraphs (a) and (c) 

introductory text to read as follows: 

§ 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: 

* * * * * 

■ 5. Section 440.22 is amended by 

revising paragraph (a) to read as follows: 

§ 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. 

* * * * * 

■ 6. Section 440.23 is amended by 

revising paragraph (e) to read as follows: 

§ 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 

DEPARTMENT OF ENERGY 

Federal Energy Regulatory 

Commission 

18 CFR Part 37 

[Docket Nos. RM05–17–004 and RM05–25– 

004; Order No. 890–C] 

Preventing Undue Discrimination and 

Preference in Transmission Service 

March 19, 2009. 

AGENCY: Federal Energy Regulatory 

Commission. 

ACTION: Order on Rehearing and 

Clarification. 

SUMMARY: The Federal Energy 

Regulatory Commission affirms its basic 

determinations in Order Nos. 890, 890– 

A and 890–B, granting rehearing and 

clarification regarding certain revisions 

to its regulations and the pro forma 

open-access transmission tariff, or 

OATT, adopted in Order Nos. 888 and 

889 to ensure that transmission services 

are provided on a basis that is just, 

reasonable, and not unduly 

discriminatory. The Commission grants 

clarification of the degree of consistency 

required in the calculation of available 

transfer capability by transmission 

providers and denies rehearing 

regarding the requirement to 

undesignate network resources used to 

serve off-system sales 

DATES: Effective Date: This rule will 

become effective March 25, 2009. 

FOR FURTHER INFORMATION CONTACT: W. 

Mason Emnett, Office of the General 

Counsel—Energy Markets, Federal 

Energy Regulatory Commission, 888 

First Street, NE., Washington, DC 20426, 

(202) 502–6540. 

SUPPLEMENTARY INFORMATION: 

Before Commissioners: Jon 

Wellinghoff, Acting Chairman; Suedeen 

G. Kelly, Marc Spitzer, and Philip D. 

Moeller. 

1. On February 16, 2007, the 

Commission issued Order No. 890,1

addressing and remedying opportunities 

for undue discrimination under the pro 

forma Open Access Transmission Tariff 

(OATT) adopted in Order No. 888.2 The 

pro forma OATT was intended to foster 

greater competition in wholesale power 

markets by reducing barriers to entry in 

the provision of transmission service. In 

the ten years since Order No. 888, 

however, flaws in the pro forma OATT 

undermined its ability to realize the 

core objective of remedying undue 

discrimination. The Commission acted 

in Order No. 890 to correct these flaws 

by reforming the terms and conditions 

of the pro forma OATT in several 

critical areas, including the calculation 

of available transfer capability (ATC), 

the planning of transmission facilities, 

and the conditions of services offered by 

each transmission provider. 

2. In Order Nos. 890–A and 890–B, 

the Commission largely affirmed the 

reforms adopted in Order No. 890. The 

Commission concluded that, taken 

together, these reforms will better 

enable the pro forma OATT to achieve 

the core objective of remedying undue 

discrimination in the provision of 

transmission service. The Commission 

did, however, grant rehearing and 

clarification regarding certain revisions 

to its regulations and the pro forma 

OATT. NorthWestern Corporation 

(NorthWestern) and South Carolina 

Electric and Gas Co. (SCE&G) have 

requested further rehearing and 

clarification of Order No. 890–B on 

certain discrete issues, which we 

address below. 

I. Reforms of the OATT 

A. Consistency and Transparency of 

ATC Calculations 

3. In Order No. 890–B, the 

Commission among other things 

affirmed a clarification provided in 

Order No. 890–A that adjacent 

transmission providers must coordinate 

and exchange data and assumptions to 

achieve consistent available transfer 

capability (ATC) values on either side of 

a single interface.3 The Commission 

stated that it disagreed with petitioners 

arguing that consistent ATC values 


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