[Federal Register Volume 74, Number 97 (Thursday, May 21, 2009)]
[Proposed Rules]
[Pages 23804-23810]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-11890]
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Proposed Rules
Federal Register
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This section of the FEDERAL REGISTER contains notices to the public of
the proposed issuance of rules and regulations. The purpose of these
notices is to give interested persons an opportunity to participate in
the rule making prior to the adoption of the final rules.
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Federal Register / Vol. 74, No. 97 / Thursday, May 21, 2009 /
Proposed Rules
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DEPARTMENT OF ENERGY
10 CFR Part 440
[Docket No. EEWAP0515]
RIN 1904-AB-97
Weatherization Assistance Program for Low-Income Persons
AGENCY: Office of Energy Efficiency and Renewable Energy, Department of
Energy.
ACTION: Notice of proposed rulemaking, request for comment.
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SUMMARY: The U.S. Department of Energy (DOE) is proposing to amend the
eligibility provisions applicable to multi-unit buildings under the
Weatherization Assistance Program for Low-Income Persons. As proposed,
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 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. If a multi-unit building includes units
that participate in the Low Income Housing Tax Credit 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 believes 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 low-income housing tax credit programs.
DATES: Public comments on this proposed rule will be accepted until
June 22, 2009.
ADDRESSES: You may submit comments identified by the RIN number
specified in the heading of this notice of proposed rulemaking (NOPR),
by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
E-mail: WXHUDNOPR@ee.doe.gov. Include the RIN number in
the subject line of the message.
Postal Mail: Gil Sperling, U.S. Department of Energy,
Weatherization Assistance Program, Mailstop EE-2K, 1000 Independence
Avenue, SW., Washington, DC 20585-0121.
Hand Delivery/Courier: Gil Sperling, U.S. Department of
Energy, Weatherization Assistance Program, Room 6050, 1000 Independence
Avenue, SW., Washington, DC 20585-0121.
Instructions: All submissions must include the agency name and
docket number or Regulatory Information Number (RIN) for this
rulemaking.
FOR FURTHER INFORMATION CONTACT: Gil Sperling, 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) 586-1510, e-mail:
Gil.Sperling@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. Eligibility Requirements for Multi-unit Buildings
III. HUD Public and Assisted Housing Programs
IV. Low Income Housing Tax Credit Program
V. Eligibility of Multi-Unit Buildings Identified by HUD
VI. Regulatory Analysis
VII. 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 low-income 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)(A) and (B)) 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 low-income persons, to supplement other Federal
programs serving such low-income 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 low-
income persons, reduce their total residential energy expenditures, and
improve their health and safety, 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
single-family dwelling units are potentially high energy consuming
dwelling units,
[[Page 23805]]
and grantees should consider appropriate prioritization for such 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))
II. Eligibility Requirements for Multi-Unit Buildings
In establishing the Weatherization Assistance Program, 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 multi-family
buildings) of the dwelling units in the building:
[cir] Are eligible dwelling units, or
[cir] 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:
[cir] 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;
[cir] 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;
[cir] 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
[cir] 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).
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 HUD already
has procedures in place for determining such income eligibility. In
particular, it may be difficult for a subgrantee to verify the income
of the families dwelling in each unit, and that in any event, such
income verification likely would be duplicative of income
certifications that are already on file with HUD. For some multi-unit
buildings, the eligibility requirements could mean that a subgrantee
must confirm the income of a hundred families or more for a single
building. In addition to the income verification required by the
subgrantee, weatherization of a multi-unit building requires that the
applicable grantee has established procedures for ensuring that the
benefits of the weatherization work accrue primarily to the low-income
tenants, the rent will not increase for a reasonable period of time,
and no undue or excessive enhancement occurs to the value of the
dwelling units.
III. HUD Public and Assisted Housing Programs
HUD's Qualified Assisted Housing \1\ 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% threshold required under DOE's regulation. 10 CFR 440.22(b)(2).
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\1\ For the purposes of this proposed rule, ``Qualified Assisted
Housing'' includes public housing projects, and assisted housing
projects that receive project-based Section 8 assistance, under the
U.S. Housing Act of 1937, as amended (42 U.S.C. 1437 et seq.)
(except projects also benefitting from assistance under Section
221(d)(3) and (d)(5), and 236 of the National Housing Act (12 U.S.C.
17151(d)(3) and (d)(5), and 12 U.S.C. 1715z-1, respectively)),
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).
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Moreover, the income verification process applicable to the HUD
programs is rigorous. Under these HUD programs, HUD assisted housing
owners or public
[[Page 23806]]
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. HUD developed and has implemented 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, a
central repository and source for income and benefit data, is securely
accessible 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.
IV. Low Income Housing Tax Credit Program
The Low Income Housing Tax Credit (LIHTC) Program was created by
the Tax Reform Act of 1986 (Pub. L. 99-514), as an alternate method of
funding housing for low- and moderate-income households, and has been
in operation since 1987. The LIHTC Program is an indirect Federal
subsidy used to finance the development of affordable rental housing
for low-income households. To be eligible for consideration under the
LIHTC Program, a proposed project must:
Be a residential rental property.
Commit to one of two possible low-income occupancy
threshold requirements.
Restrict rents, including utility charges, in low-income
units.
Operate under the rent and income restrictions for 30
years or longer, pursuant to written agreements with the agency issuing
the tax credits.
Property owners participating in the LIHTC Program are directed to
utilize the same income verification process set forth in HUD Handbook
4350.3 REV1, IRS Code Section 42, and 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
Internal Revenue Service. 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 LIHTC Program requires a minimum
affordability period of 30 years (i.e., a 15-year compliance period and
subsequent 15-year extended use period).
V. Eligibility of Multi-Unit Buildings Identified by HUD
As indicated previously in this notice, the requirement to
demonstrate the income eligibility of each family living in a multi-
unit building can create a procedural burden for subgrantees when
evaluating a request for assistance under the Weatherization Assistance
Program. Demonstration of the income eligibility of at least 66 percent
of the units of a multi-unit building (50 percent for duplexes and four
unit buildings) helps ensure that the benefits of weatherizing a multi-
unit building are realized by low-income tenants, but the necessary
income verification may hinder an eligibility determination for such
buildings.
In an evaluation of its data, including data generated through the
LIHTC Program, HUD has identified buildings that participate in the
Qualified Assisted Housing and LIHTC Programs that, upon preliminary
review by DOE, would meet the income eligibility requirements for
multi-unit buildings under the Weatherization Assistance Program, i.e.,
at least 66 percent of the dwelling units are occupied by family units
whose income is at or below 200 percent of the poverty level. 10 CFR
440.22(b)(2). Moreover, DOE has determined preliminarily that the
procedural requirements under the Weatherization Assistance Program to
protect against rent increases and undue enhancement of the weatherized
building would be satisfied for buildings that are in the Qualified
Assisted Housing programs identified by HUD.
A. Income Eligibility of Multi-Family Buildings
As discussed previously, the income of the families occupying units
in buildings under the Qualified Assisted Housing and LIHTC Programs is
subject to HUD's rigorous verification processes, discussed previously.
Given the nature of the data collected by HUD and the income
verification procedures employed under these housing programs, DOE
proposes 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.
DOE requests 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.
B. Limitations on 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 the
weatherization. 10 CFR 440.22(b)(3)(iii).
Under the Qualified Assisted Housing programs, tenant rents are
capped at thirty percent (30 percent) of their income, so tenants would
not be subject to rent increases as a result of the weatherization or
otherwise. Although the LIHTC Program provides for rent control, it is
DOE's understanding that the program does not have comparable uniform
restrictions as under the Qualified Assisted Housing programs.
DOE proposes 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.
DOE requests comments on whether the Qualified Assisted Housing
Program sufficiently protects low-income tenants
[[Page 23807]]
from rent increases so as to satisfy the requirement that grantees
under the Weatherization Assistance Program establish procedures to
protect low-income tenants against rent increases resulting from the
weatherization. Additionally, DOE requests 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.
C. No Undue or Excess Enhancement
Weatherization of a building containing rental units requires that
the applicable grantee ensure that no undue or excessive enhancement
would occur to the value of the dwelling unit. 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(b)(9). Moreover, for buildings that are in the Qualified
Assisted Housing Programs, HUD controls the capital improvements that
may be made. DOE proposes that the existing limits on permissible work
under the Weatherization Assistance Program and the HUD control of
improvements under the Qualified Assisted Housing programs would
provide the necessary assurances that no undue or excessive enhancement
will occur as a result of the weatherization of the buildings
identified by HUD.
DOE requests comment 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 requests information on whether similar
controls may be present under the LIHTC Program to a degree sufficient
to allow DOE to make a similar finding for the LIHTC Program.
D. Eligibility of Buildings in the HUD Programs
Based on the preceding discussion, DOE tentatively has determined
that buildings subject to the Qualified Assisted Housing programs and
that are identified by HUD would meet the income eligibility, rent
control, and no undue or excessive enhancement requirements of the
Weatherization Assistance Program for determining eligibility of multi-
unit buildings. DOE has also tentatively determined that buildings
subject to the LIHTC Program and that are identified by HUD would meet
the income eligibility requirement of the Weatherization Assistance
Program for determining eligibility of multi-unit buildings. If today's
proposed rule were made final, DOE would post annually a list of such
buildings provided by HUD. The list would be available on the
Weatherization Program Web site, http://www.eere.energy.gov/wip, and
would be included in future funding opportunity announcements and
program guidance. In evaluating the eligibility of a multi-unit
building, inclusion on the most recent published list of Qualified
Assisted Housing program buildings would demonstrate that a building
meets the income, rent control, and no undue or excessive enhancement
requirements established at 10 CFR 440.22(b)(2) and (3)(ii) and (iv).
Inclusion on the most recent published list of LIHTC Program buildings
would demonstrate that a building meets the income requirement
established at 10 CFR 440.22(b)(2).
Today's proposed rule is intended to reduce the review and
verification that a subgrantee must undertake when evaluating the
eligibility of the identified buildings. DOE does not intend that
today's proposal would make buildings eligible under the Weatherization
Assistance Program that previously were not eligible. The purpose of
today's proposed rule is to reduce the burden on States and subgrantees
when evaluating applicability requirements for which HUD has already
collected and verified the necessary data. In the event that a
subgrantee is presented with a request for weatherization assistance of
a multi-unit building, the subgrantee, under the proposed rule, would
be able to reference the DOE published list of buildings identified by
HUD. If the building which is the subject of a request were on the most
recent list, the subgrantee would not need to undertake an independent
verification of the income of the building tenants. In the case of
buildings on the Qualified Assisted Housing Program list, the
procedures required by the relevant grantee to ensure protection from
rent increases, and ensure that no undue or excessive enhancement shall
occur, would be met.
DOE recognizes that if made final, today's proposal would not
address the requirement that, for multi-unit buildings, a grantee must
ensure that 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)) 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 on the list provided by HUD would need to demonstrate
that the benefits of the weatherization work accrue primarily to the
low-income tenants.
Generally, compliance with the requirement for the benefits of
weatherization to accrue to the low-income tenants can be demonstrated
by reduced utilities costs for the tenant that result from the
weatherization work. 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 the benefit of reduced utility bills.
DOE requests comment on how to ensure compliance with the
requirement that benefits of weatherization accrue primarily to 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.
Additionally, today's proposed rule would not alleviate the need
for a subgrantee to obtain the written permission of the owner or the
owner's agent or 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. 10 CFR 440.22(b)(1) and
440.18(e)(1), respectively. The proposed rule would not eliminate the
ability of States to require financial participation from building
owners (10 CFR 440.22(d)), or other requirements of DOE's rules.
Moreover, the proposed rule would not impact the prioritization that
States and subgrantees rely on in evaluating requests for
weatherization work.
Despite the remaining issues that would still need to be addressed
when weatherizing a multi-unit building, if finalized, DOE believes
that today's proposal would be an important step in facilitating the
weatherization of buildings that participate in the Qualified Assisted
Housing and LIHTC Programs.
[[Page 23808]]
VI. Regulatory Analysis
A. Review Under Executive Order 12866
Today's proposed 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 proposed rule.\2\ See OMB
Circular A-4, at 14, 38 and 46. If today's proposal is finalized prior
to expenditure of the Recovery Act funds by grantees and subgrantees
under the Weatherization Assistance Program, today's proposal could
impact the process used by grantees and subgrantees to evaluate
applications from multi-unit buildings that are part of HUD's Qualified
Assisted Housing and LIHTC Programs 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 EO 12866.
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\2\ 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).
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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. If finalized, today's action would
revise 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 is requesting comment, today's proposed 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, if finalized, today's action 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 proposal would amend the eligibility
provisions for multi-unit buildings under the Weatherization Assistance
Program. The regulations would 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 proposed rule and
has determined that if finalized, it would not pre-empt State law and
would not have a substantial direct effect on the States, on the
relationship between the national government and the States, or on the
distribution of power and responsibilities among the various levels of
government. No further action is required by Executive Order 13132.
E. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, section 3(a) of Executive Order 12988,
Civil Justice Reform, 61 FR 4729 (February 7, 1996), imposes on
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. The review required by
sections 3(a) and 3(b) of Executive Order 12988 specifically requires
that Executive agencies make every reasonable effort to ensure that the
regulation: (1) Clearly specifies the pre-emptive effect, if any; (2)
clearly specifies any effect on existing Federal law or regulation; (3)
provides a clear legal standard for affected conduct while promoting
simplification and burden reduction; (4) specifies the retroactive
effect, if any; (5) adequately defines key terms; and (6) addresses
other important issues affecting clarity and general draftsmanship
under any guidelines issued by the Attorney General. Section 3(c) of
Executive Order 12988 requires Executive agencies to review regulations
in light of applicable standards in sections 3(a) and 3(b) to determine
whether they are met or it is unreasonable to meet one or more of them.
DOE has completed the required review and determined that, to the
extent permitted by law, today's 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
[[Page 23809]]
requires Federal agencies to examine closely the impacts of regulatory
actions on State, local, and tribal governments. Subsection 101(5) of
Title I of that law defines a Federal intergovernmental mandate to
include any regulation that would impose upon State, local, or tribal
governments an enforceable duty, except a condition of Federal
assistance or a duty arising from participating in a voluntary Federal
program. Title II of that law requires each Federal agency to assess
the effects of Federal regulatory actions on State, local, and tribal
governments, in the aggregate, or to the private sector, other than to
the extent such actions merely incorporate requirements specifically
set forth in a statute. Section 202 of that title requires a Federal
agency to perform a detailed assessment of the anticipated costs and
benefits of any rule that includes a Federal mandate which may result
in costs to State, local, or tribal governments, or to the private
sector, of $100 million or more. Section 204 of that title requires
each agency that proposes a rule containing a significant Federal
intergovernmental mandate to develop an effective process for obtaining
meaningful and timely input from elected officers of State, local, and
tribal governments.
If made final, today's proposed rule would not impose a Federal
mandate on State, local or tribal governments, and it would 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. If made final, today's proposed rule would not have any
impact on the autonomy or integrity of the family as an institution.
Accordingly, DOE has concluded that it is not necessary to prepare a
Family Policymaking Assessment.
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 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.
Today's regulatory action, if finalized, would not have a
significant adverse effect on the supply, distribution, or use of
energy and is therefore not a significant energy action. Accordingly,
DOE has not prepared a Statement of Energy Effects.
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. 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.
VI. Approval of the Office of the Secretary
The Secretary of Energy has approved publication of today's notice
of proposed rulemaking.
List of Subjects in 10 CFR Part 440
Administrative practice and procedure, 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 May 15, 2009.
Steven G. Chalk,
Principal Deputy Assistant Secretary, Energy Efficiency and Renewable
Energy.
For the reasons set forth in the preamble, DOE proposes to amend
part 440 of chapter II of title 10, Code of Federal Regulations to read
as follows:
PART 440--WEATHERIZATION ASSISTANCE PROGRAM FOR LOW-INCOME PERSONS
1. The authority citation for part 440 continues to read as
follows:
Authority: 42 U.S.C. 6861 et seq.; 42 U.S.C. 7101 et seq.
Sec. 440.22 Eligible dwelling units.
2. Section 440.22 is amended by adding paragraph (b)(4) to read as
follows:
* * * * *
(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 Qualified 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
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
[[Page 23810]]
Development as meeting that requirement.
* * * * *
[FR Doc. E9-11890 Filed 5-20-09; 8:45 am]
BILLING CODE 6450-01-P