[Federal Register Volume 74, Number 120 (Wednesday, June 24, 2009)]
[Notices]
[Pages 30061-30064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-14891]


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DEPARTMENT OF ENERGY

Office of Energy Efficiency and Renewable Energy


Energy Efficiency and Conservation Block Grant Program

AGENCY: Department of Energy (DOE).

ACTION: Notice.

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SUMMARY: DOE is announcing an appeals process for eligibility 
determinations published in the funding opportunity announcement issued 
under the Energy Efficiency and Conservation Block Grant (EECBG) 
program. This notice specifies the issues that can be appealed, the 
process for filing an appeal, and the procedure applicable to 
adjudicate such appeals. All appeals will be reviewed by the DOE Office 
of Hearings and Appeals (OHA). The deadline for submitting an appeal 
with OHA is 30 days following the publication of this notice.

DATES: All appeals must be filed, as described in the SUPPLEMENTARY 
INFORMATION section of this notice, no later than July 24, 2009.

FOR FURTHER INFORMATION CONTACT: For questions regarding the EECBG 
Program contact EERE's Information Center, at http://www1.eere.energy.gov/informationcenter/, or call toll-free at 1-877-
EERE-INFO (1-877-337-3463), between 9 a.m. and 7 p.m. EST, Monday 
through Friday.
    For questions regarding the EECBG appeals process contact Fred L. 
Brown, Deputy Director, Office of Hearings and Appeals, 1000 
Independence Ave., SW., Washington, DC 20585-0107, (202) 287-1545, 
<a href="/cdn-cgi/l/email-protection#8fc9fdeaeba1cdfde0f8e1cfe7fea1ebe0eaa1e8e0f9"><span class="__cf_email__" data-cfemail="d492a6b1b0fa96a6bba3ba94bca5fab0bbb1fab3bba2">[email protected]</span></a>.

SUPPLEMENTARY INFORMATION: 

I. Background

    The Energy Independence and Security Act of 2007 (EISA) established 
the Energy Efficiency and Conservation Block Grant (EECBG) Program, 
which provides, in part, for a direct formula grant program for States, 
eligible units of local government, and Indian Tribes. (42 U.S.C. 
17151-17158) On April 15, 2009, DOE published in the Federal Register 
formulas for allocation of direct grants under the EECBG Program. 74 FR 
17461. DOE also published a funding opportunity announcement that 
identified the ``eligible units of local government,'' Funding 
Opportunity Number: DE-FOA-0000013, Amendment 00003 (available at: 
http://www.eecbg.energy.gov/).
    For the purpose of the EECBG program, an ``eligible unit of local 
government'' was defined by EISA to be a city or county that met 
population thresholds specified in statute. (42 U.S.C. 17151) Further, 
to be defined as an ``eligible unit of local government,'' DOE 
determined that a geographical subdivision also must have a functional 
government with responsibilities and jurisdiction capable of 
implementing the broad range of programs identified by EISA. EISA 
specifically enumerated the following activities as activities that 
achieve the purpose of the EECBG Program--

    (1) Development and implementation of an energy efficiency and 
conservation strategy as required by EISA;
    (2) Retaining technical consultant services to assist the 
eligible entity in the development of such a strategy, including--
    (A) Formulation of energy efficiency, energy conservation, and 
energy usage goals;
    (B) Identification of strategies to achieve those goals--
    (i) Through efforts to increase energy efficiency and reduce 
energy consumption; and

[[Page 30062]]

    (ii) By encouraging behavioral changes among the population 
served by the eligible entity;
    (C) Development of methods to measure progress in achieving the 
goals;
    (D) Development and publication of annual reports to the 
population served by the eligible entity describing the goals and 
progress in achieving the goals;
    (E) Other services to assist in the implementation of the energy 
efficiency and conservation strategy;
    (3) Conducting residential and commercial building energy 
audits;
    (4) Establishment of financial incentive programs for energy 
efficiency improvements;
    (5) The provision of grants to nonprofit organizations and 
governmental agencies for the purpose of performing energy 
efficiency retrofits;
    (6) Development and implementation of energy efficiency and 
conservation programs for buildings and facilities within the 
jurisdiction of the eligible entity, including--
    (A) Design and operation of the programs;
    (B) Identifying the most effective methods for achieving maximum 
participation and efficiency rates;
    (C) Public education;
    (D) Measurement and verification protocols; and
    (E) Identification of energy efficient technologies;
    (7) Development and implementation of programs to conserve 
energy used in transportation, including--
    (A) Use of flex time by employers;
    (B) Satellite work centers;
    (C) Development and promotion of zoning guidelines or 
requirements that promote energy efficient development;
    (D) Development of infrastructure, such as bike lanes and 
pathways and pedestrian walkways;
    (E) Synchronization of traffic signals; and
    (F) Other measures that increase energy efficiency and decrease 
energy consumption;
    (8) Development and implementation of building codes and 
inspection services to promote building energy efficiency;
    (9) Application and implementation of energy distribution 
technologies that significantly increase energy efficiency, 
including--
    (A) Distributed resources; and
    (B) District heating and cooling systems;
    (10) Activities to increase participation and efficiency rates 
for material conservation programs, including source reduction, 
recycling, and recycled content procurement programs that lead to 
increases in energy efficiency;
    (11) The purchase and implementation of technologies to reduce, 
capture, and, to the maximum extent practicable, use methane and 
other greenhouse gases generated by landfills or similar sources;
    (12) Replacement of traffic signals and street lighting with 
energy efficient lighting technologies, including--
    (A) Light emitting diodes; and
    (B) Any other technology of equal or greater energy efficiency;
    (13) Development, implementation, and installation on or in any 
government building of the eligible entity of onsite renewable 
energy technology that generates electricity from renewable 
resources, including--
    (A) Solar energy;
    (B) Wind energy;
    (C) Fuel cells;
    (D) Biomass; and
    (14) Any other appropriate activity, as appropriately determined 
by the Secretary of Energy.

(42 U.S.C. 17154)
    Therefore, for the purpose of the EECBG Program, DOE defined 
``eligible unit of local government'' as a city or county that--
    <bullet> Is listed in the U.S. Census Bureau's 2007 Edition of the 
Governments Integrated Directory (2007 GID) as a currently incorporated 
entity;
    <bullet> Meets the required population threshold according to the 
Population Estimates Program 2007 population estimates (including 
successful challenges to these estimates) published by the U.S. Census 
Bureau;
    <bullet> Is identified by the 2007 Census of Governments as having 
a governance structure consisting of an elected official and governing 
body; and (perhaps most particularly)
    <bullet> Has a governing structure, as indicated by the 2007 Census 
data, with the capabilities and jurisdiction necessary to carry out the 
broad range of EECBG programs.
    In determining population, DOE used the Census 2007 Population 
Estimates Program population estimates with updates to reflect 
challenges to the 2007 population estimates submitted to and accepted 
by the Census Bureau. The list of successful challenges can be found at 
http://www.census.gov/popest/archives/2000s/vintage_2007/07s_challenges.html.
    For the purposes of the EECBG program, DOE included the following 
clarifications to the records used to calculate which cities were 
``eligible units of local government:''
    <bullet> In the Commonwealth of Puerto Rico, Municipios were 
treated as cities. Though designated as counties by the Census, 
governments of Municipios have the functionality of city governments.
    <INF><bullet></INF> Towns, townships and boroughs listed as 
incorporated Places tabulated by the U.S. Census Bureau for the 
Department of Housing and Urban Development's Community Development 
Block Grant Program were treated as cities. The governments of these 
places have the functionality of city governments.
    <INF><bullet></INF> For those populations residing in one 
incorporated place that is within the geographic boundary of another 
incorporated place, DOE credited the population to the first 
incorporated place. For example, for a town listed in the 2007 GID as 
an incorporated entity that has within its geographic boundaries a 
village listed in the 2007 GID, the village population was subtracted 
from the town population. DOE assumed that an entity listed as 
incorporated by the 2007 GID has a functional government with 
responsibilities and jurisdiction capable of implementing the broad 
range of programs identified by EISA. Therefore, DOE subtracted the 
population of the village from the total population of the town in 
which the village is located to avoid double-counting of populations.
    <bullet> A consolidated or unified city-county government in which 
a city and a county overlap geographically and govern as one 
consolidated government was considered by DOE as an eligible city. 
City-county governments have the functionality of city governments.
    74 FR 17462. As indicated previously, to be defined as an 
``eligible unit of local government,'' DOE determined that a 
geographical subdivision must have the requisite population, but also 
must have a functional government with responsibilities and 
jurisdiction capable of implementing the broad range of programs 
identified by EISA. Some counties, for example, are vested with no 
governmental authority whatsoever.
    In determining whether particular county governments have the types 
of functions and authority necessary to support the programs EISA 
directs DOE to fund, DOE relied on the 2007 Census of Governments, 
published by the U.S. Census Bureau. A county that has the requisite 
population, but has an associated government that, as described by the 
2007 Census of Governments, has ``relatively few [governmental] 
responsibilities,'' or an equivalent evaluation, was understood to lack 
the government functions and authority necessary to discharge the 
energy efficiency and conservation programs and projects identified by 
EISA. Such local entities with limited responsibilities are not units 
of local ``government'' for the purpose of defining eligibility under 
the EECBG Program.
    Additionally, EISA distinguishes between cities that are eligible 
units of local government and counties that are eligible units of local 
government. Consistent with the EISA distinction, DOE distinguished the 
population of a city that met the requisite population threshold for an 
eligible unit of local government from the population of the county in 
which that city is situated. For the purpose of the EECBG Program, DOE 
removes the population of an

[[Page 30063]]

eligible city in determining the population of a county.
    By removing the population of an eligible city in determining the 
population of a county, DOE reduced the instances in which a person 
would be double-counted, i.e., counted once for determination of a 
city's eligibility and again in determining a county's eligibility. 
This distinction between city and county populations yields a 
determination of eligibility that results in funds being distributed 
more on a per capita basis, which DOE believes is one way to provide 
greater equity in the allocation of funds between cities and counties 
under the direct formula grants.
    A complete discussion of how DOE determined whether a city or 
county is an ``eligible unit of local government'' is provided in the 
April 15, 2009, Federal Register notice (74 FR 17461).

II. Issues Giving Rise to the Appeals Process

    As indicated above, DOE applied four factors in the evaluation of 
whether a city or county qualifies as ``eligible unit of local 
government'' for the purpose of the EECBG Program. A city or county is 
an ``eligible unit of local government'' under the EECBG Program if 
it--
    <bullet> Is listed in the 2007 GID as an incorporated entity;
    <bullet> Meets the required population threshold according to the 
Population Estimates Program 2007 population estimates (including 
successful challenges to these estimates) published by the U.S. Census 
Bureau;
    <bullet> Is identified by the 2007 Census of Governments as having 
a governance structure consisting of an elected official and governing 
body; and
    <bullet> Has a governing structure, as indicated by the 2007 Census 
data, with the capabilities and jurisdiction necessary to carry out the 
broad range of EECBG programs.
    DOE relied on the 2007 Census data and information in evaluating 
each factor, as it is the official government source for this type of 
data and information. Moreover, the U.S. Census Bureau provided an 
opportunity for local governments to request corrections to the 2007 
data and information. That process closed on January 5, 2009. 
Additional information on the U.S. Census Bureau population estimates 
process can be found at http://www.census.gov/popest/estimates.html.

A. Assumption Regarding Government Function and Jurisdiction

    In evaluating the four factors, DOE relied on the characterization 
of city and county governing structures to determine whether cities and 
counties had sufficient jurisdiction and government function to carry 
out the activities set forth in Title V, Subtitle E of the EISA. 
However, the characterization of city and county governments in the 
2007 Census data was not in the context of the EECBG Program. DOE 
recognizes that the characterization of the governing structure of a 
city or county may not have been sufficiently informative for the 
purpose of determining eligibility under the EECBG Program. As such, 
there are two specific instances in which the characterization of a 
city or county government may be reviewable on appeal.
    The first instance in which the characterization of government may 
not have been sufficiently informative, and therefore reviewable on 
appeal, is for those counties (or county equivalents) listed by the 
2007 Census of Governments as having limited governmental functions. As 
stated earlier in this notice, DOE determined that in order to be an 
``eligible unit of local government,'' a geographical subdivision must 
not only have the requisite population but also must have a functional 
government with responsibilities and jurisdiction capable of 
implementing the broad range of programs identified by EISA, and listed 
earlier in this notice. The Department deemed ineligible those counties 
characterized by the 2007 Census of Governments as having limited 
governmental function. The capability of a county to discharge the 
broad range of programs authorized by the EISA is reviewable on appeal.
    If a county (or county equivalent) was determined to be ineligible 
by DOE based on the 2007 Census of Governments characterization of 
government function, that county would need to demonstrate on appeal 
that it has the jurisdiction and functional capabilities necessary to 
carry out the types of projects identified by EISA. The information 
provided on the appeal should be authoritative but need not be 
exhaustive. The appeal should demonstrate that the county (or county 
equivalent) is capable of implementing programs or projects that are 
consistent with those listed by EISA as activities that further the 
goals of EECBG. A county (or county equivalent) may include previous 
examples where the applicant has carried out such activities.
    The second instance in which the characterization of government by 
the 2007 Census data may not have been sufficiently informative, and 
therefore reviewable on appeal, involves the assumption by DOE that a 
city (or city equivalent) listed by the 2007 GID as an incorporated 
entity has a functional government with responsibilities and 
jurisdiction capable of implementing the broad range of programs 
identified by EISA. Based on this assumption, DOE subtracted from the 
population of an incorporated city (or city equivalent) the population 
of an incorporated city (or city equivalent) that is located within the 
boundaries of the first incorporated city. DOE adjusted population in 
this manner so as to avoid double-counting the population of two 
potentially eligible entities. However, in some instances the ``nested 
city'' (i.e., the city located within the boundaries of another city) 
may not have sufficient jurisdiction and government function to carry 
out the types of programs identified in EISA and in turn rely on the 
larger city for such services.
    If DOE determined that a city (or city equivalent) was ineligible 
because it did not have the requisite population and the population 
relied on by DOE excluded the population of a ``nested city,'' that 
city (or city equivalent) would need to demonstrate that the ``nested 
city'' lacks sufficient jurisdiction and government function to carry 
out the types of projects listed in EISA, and the ``nested city'' 
relies on the appellant city for such services. Again, the information 
provided on the appeal should be authoritative but need not be 
exhaustive. The appeal should demonstrate that the larger city provides 
services to the ``nested city'' of the type necessary to implement 
programs or projects that are consistent with those listed by EISA. A 
city (or city equivalent) may include previous examples where the 
applicant has carried out such activities.

B. Corrections to the 2007 Census Data

    As indicated above, DOE used the Census 2007 Population Estimates 
Program population estimates with updates to reflect challenges to the 
2007 population estimates submitted to and accepted by the Census 
Bureau. However, a unit of local government may appeal an eligibility 
determination that was based upon 2007 Census data that was 
successfully challenged, but the successful challenge was not reflected 
in the DOE's determination of eligibility. An appeal based on this 
issue would need to provide documentation of a successful challenge to 
the 2007 Census data.

C. Issues Not Reviewable on Appeal

    Issues regarding the methodology established by DOE to determine 
the population of a city or county are not reviewable on appeal. For 
example, the

[[Page 30064]]

decision by DOE to exclude the population of an eligible city from the 
population of the county in which the city is located is not reviewable 
on appeal.
    Additionally, the determination of DOE to rely on the 2007 Census 
data is not reviewable on appeal. DOE recognizes that more recent data 
have been made available by the U.S. Census Bureau. However, in order 
to provide certainty as to the funding levels of entities determined to 
be ``eligible units of local government,'' DOE relied on the most 
recent data available at the time the formula allocations were 
announced. The availability of updated (as opposed to corrected 2007 
data) is not reviewable on appeal.

III. Opportunity to Appeal

    DOE is providing cities and counties an opportunity to appeal to 
OHA a determination of ineligible under the EECBG Program. The appeals 
process, including an explanation of issues reviewable on appeal, is 
provided in the following section.
    If an appeal is granted, appellant will have 30 days in which to 
file an application for funding under the direct formula grant 
provision of EECBG. The application must be consistent with the 
application requirements provided in Funding Opportunity Number: DE-
FOA-0000013, Amendment 00003 (available at http://www.eecbg.energy.gov/
). Allocation of funding to a city or county resulting from a Decision 
and Order by OHA shall not affect any previous allocation made by DOE 
to other eligible units of local government.

IV. EECBG Eligibility Appeals Procedure

    These procedures may be cited as the Department of Energy (DOE) 
Energy Efficiency and Conservation Block Grant Program Appeals 
Procedures (EECBGAP).

A. Who may appeal?

    Any unit of local government determined to be ineligible to receive 
a direct formula grant under the Energy Efficiency and Conservation 
Block Grant Program (``EECBG Program''), based upon eligibility 
criteria established by the U.S. Department of Energy, 74 FR 17461 
(April 15, 2009).

B. What eligibility determinations are appealable?

    A unit of local government may file an appeal under these 
procedures where it has been denied eligibility for the EECBG Program 
based: (1) Upon a determination that it is incapable of carrying out 
activities set forth in Title V, Subtitle E of the Energy Independence 
and Security Act of 2007, Public Law 110-140 (EISA); (2) upon an 
adjustment to its population as the result of a determination that 
another entity that is located within its borders is capable of 
carrying out activities set forth in Title V, Subtitle E of EISA; or 
(3) upon 2007 Census data that was corrected by the U.S. Census Bureau, 
but the correction was not reflected in the Department's determination 
of eligibility.
    Except as specified in IV.B.(2) and (3) in the preceding paragraph, 
a denial of eligibility for the EECBG Program for failure to meet 
required population thresholds, based upon 2007 U.S. Census estimate 
data, is not appealable under these procedures.

C. What must the appeal contain and what is the standard of review?

    The appeal shall contain a concise statement of the ground(s) upon 
which the excluded entity contests denial of eligibility under the 
EECBG Program and the remedy sought.
    The appeal should include any data, documentation or other relevant 
information supporting a showing by the appellant that the denial of 
eligibility under the EECBG Program is erroneous, not supported by the 
whole record, or is arbitrary and capricious. The appeal shall also 
state whether the appellant is requesting a conference or hearing 
regarding the appeal.
    The appeal shall include a signed certification stating that the 
facts contained in the appeal are, to the best knowledge of the 
applicant, true.

D. How should the appeal be filed?

    Any appeal, including attachments, should be electronically filed 
with the Office of Hearings and Appeals (OHA), U.S. Department of 
Energy, at: <a href="/cdn-cgi/l/email-protection#fab5b2bbd49c939693949d89ba928bd49e959fd49d958c"><span class="__cf_email__" data-cfemail="abe4e3ea85cdc2c7c2c5ccd8ebc3da85cfc4ce85ccc4dd">[email protected]</span></a>.
    Alternatively, appeals and other associated documents, may be 
mailed to: Office of Hearings and Appeals (OHA), U.S. Department of 
Energy, 1000 Independence Avenue, SW., Washington, DC 20585-0107. 
Appellants may also hand-deliver appeals and associated documents to 
OHA at Room 7117, 950 L'Enfant Plaza, SW., Washington, DC 20585, during 
official filing hours. Official filing hours are from 1:30 to 4 p.m., 
Monday through Friday.
    Upon receipt, OHA will confirm receipt of the appeal and assign a 
case number to the filing.

E. What are the steps in the process?

    (1) Any appeal under these procedures must be filed within thirty 
days (30) of the date of publication in the Federal Register of the 
notice announcing the present appeals process and procedures.
    (2) In evaluating an appeal, OHA may require the submission of 
additional information by the appellant regarding any statement in an 
appeal. OHA may also solicit and accept submissions of relevant 
information from other sources, provided that the appellant is afforded 
an opportunity to respond to all such submissions. OHA on its own 
initiative may convene a conference or hearing if, in its discretion, 
it considers that such conference or hearing will advance its 
evaluation of the appeal. OHA will determine the scope and format of 
any conference or hearing convened under these procedures, as well as 
the parties allowed to participate.
    (3) OHA may issue an order summarily dismissing an appeal if: (a) 
Not filed by a unit of local government that was found ineligible under 
the EECBG Program; (b) not filed in a timely manner, unless good cause 
is shown; (c) the filing is defective on its face; or (d) there is 
insufficient information upon which to base a decision and if, upon 
request, the necessary additional information is not submitted.
    (4) Within forty-five (45) days of receiving all required 
information, OHA shall issue a written decision granting or denying the 
appellant eligibility to apply for a direct formula grant under the 
EECBG Program. The decision shall include a written statement setting 
forth the relevant facts and basis for the determination. Upon 
issuance, OHA shall serve an electronic version of the decision upon 
the appellant and the DOE Office of Energy Efficiency and Renewable 
Energy. The decision will also be published on the OHA Web site: http://www.oha.doe.gov. The decision of OHA shall constitute final agency 
action and the appellant's final right of administrative review 
regarding eligibility under the EECBG Program.
    (5) All expenses incurred in pursuing any appeal before OHA shall 
be borne exclusively by the appellant(s).

    Issued in Washington, DC, on June 19, 2009.
Steven G. Chalk,
Principal Deputy Assistant Secretary, Energy Efficiency and Renewable 
Energy.
[FR Doc. E9-14891 Filed 6-23-09; 8:45 am]
BILLING CODE 6450-01-P


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