Block Grant Regulations Subpart H

LIHEAP Regulations, revised as of October 1, 1996

 

Code of Federal Regulations//Title 45, Part 96, Subpart H//From the U.S. Government Printing Office via GPO Access//CITE: 45C FR 96

See also HHS block grant regulations' Subpart A-F which are relevant to LIHEAP 96.80 Scope Subpart H--Low-income Home Energy Assistance Program

Sec. 96.80 Scope

This subpart applies to the low-income home energy assistance program.

Sec. 96.81 Reallotment report.

As a part of the reallotment procedure established by section

2607(b) of Public Law 97-35 (42 U.S.C. 8626(b)), beginning with funds to

be held available for fiscal year 1992, each recipient of funds must

submit a report to the Secretary by August 1 of each year containing the

following information:

(a) The amount of funds that the grantee desires remain available

for obligation in the succeeding fiscal year, not to exceed 10 percent

of the funds payable to the grantee and not transferred pursuant to

section 2604(f) of Public Law 97-35 (42 U.S.C. 8623(f));

(b) A statement of the reasons that this amount to remain available

will not be used in the fiscal year for which it was allotted;

(c) A description of the types of assistance to be provided with the

amount held available; and

(d) The amount of funds, if any, to be subject to reallotment.

[57 FR 1977, Jan. 16, 1992]

Sec. 96.82 Required report.

In accordance with 42 U.S.C. 8629(a), each State receiving funds

shall submit to the Department by October 31 of each year a report of:

(a) The number and income levels of the households assisted by

LIHEAP funds during the preceding fiscal year; and

(b) The number of households assisted by LIHEAP funds during the

preceding fiscal year that contain one or more individuals who are 60

years or older and the number which contain one or more individuals who

are handicapped.

(Approved by the Office of Management and Budget under control number

0960-0446)

[52 FR 37967, Oct. 13, 1987]

Sec. 96.83 Increase in Maximum Amount That May be Used for

Weatherization and Other energy-related Home Repair

(a) Scope. This section concerns requests for waivers increasing

from 15 percent to up to 25 percent of LIHEAP funds allotted or

available to a grantee for a fiscal year, the maximum amount that

grantees may use for low-cost residential weatherization and other

energy-related home repair for low-income households (hereafter referred

to as ``weatherization''), pursuant to section 2605(k) of Public Law 97-

35 (42 U.S.C. 8624(k)).

(b) Public inspection and comment. Before submitting waiver requests

to the Department, grantees must make proposed waiver requests available

for public inspection within their jurisdictions in a manner that will

facilitate timely and meaningful review of, and comment upon, these

requests. Written public comments on proposed waiver requests must be

made available for public inspection upon their receipt by grantees, as

must any summaries prepared of written comments, and transcripts and/or

summaries of verbal comments made on proposed requests at public

meetings or hearings. Proposed waiver requests, and any preliminary

waiver requests, must be made available for public inspection and

comment until at least March 15 of the fiscal year for which the waiver

is to be requested. Copies of actual waiver requests must be made

available for public inspection upon submission of the requests to the

Department.

(c) Waiver request. After March 31 of each fiscal year, the chief

executive officer (or his or her designee) may request a waiver of the

weatherization obligation limit for this fiscal year, if the grantee

meets criteria in paragraphs (c)(2)(i), (c)(2)(ii), and (c)(2)(iii) of

this section, or can show ``good cause'' for obtaining a waiver despite

a failure to meet one or more of these criteria. (If the request is made

by the chief executive officer's designee and

[[Page 495]]

the Department does not have on file written evidence of the

designation, the request also must include evidence of the appropriate

delegation of authority.) Waiver requests must be in writing and must

include the information specified in paragraphs (c)(1) through (c)(6) of

this section. The grantee may submit a preliminary waiver request for a

fiscal year, between February 1 and March 31 of the fiscal year for

which the waiver is requested. If a grantee chooses to submit a

preliminary waiver request, the preliminary request must include the

information specified in paragraphs (c)(1) through (c)(6) of this

section; in addition, after March 31 the chief executive officer (or his

or her designee) must submit the information specified in paragraphs

(c)(7) through (c)(10) of this section, to complete the preliminary

waiver request.

(1) A statement of the total percent of its LIHEAP funds allotted or

available in the fiscal year for which the waiver is requested, that the

grantee desires to use for weatherization.

(2) A statement of whether the grantee has met each of the following

three criteria:

(i) In the fiscal year for which the waiver is requested, the

combined total (aggregate) number of households in the grantee's service

population that will receive LIHEAP heating, cooling, and crisis

assistance benefits that are provided from Federal LIHEAP allotments

from regular and supplemental appropriations will not be fewer than the

combined total (aggregate) number that received such benefits in the

preceding fiscal year;

(ii) In the fiscal year for which the waiver is requested, the

combined total (aggregate) amount, in dollars, of LIHEAP heating,

cooling, and crisis assistance benefits received by the grantee's

service population that are provided from Federal LIHEAP allotments from

regular and supplemental appropriations will not be less than the

combined total (aggregate) amount received in the preceding fiscal year;

and

(iii) All LIHEAP weatherization activities to be carried out by the

grantee in the fiscal year for which the wavier is requested have been

shown to produce measurable savings in energy expenditures.

(3) With regard to criterion in paragraph (c)(2)(i) of this section,

a statement of the grantee's best estimate of the appropriate household

totals for the fiscal year for which the wavier is requested and for the

preceding fiscal year.

(4) With regard to criterion in paragraph (c)(2)(ii) of this

section, a statement of the grantee's best estimate of the appropriate

benefit totals, in dollars, for the fiscal year for which the waiver is

requested and for the preceding fiscal year.

(5) With regard to criterion in paragraph (c)(2)(iii) of this

section, a description of the weatherization activities to be carried

out by the grantee in the fiscal year for which the wavier is requested

(with all LIHEAP funds proposed to be used for weatherization, not just

with the amount over 15 percent), and an explanation of the specific

criteria under which the grantee has determined whether these activities

have been shown to produce measurable savings in energy expenditures.

(6) A description of how and when the proposed wavier request was

made available for timely and meaningful public review and comment,

copies and/or summaries of public comments received on the request

(including transcripts and/or summaries of any comments made on the

request at public meetings or hearings), a statement of the method for

reviewing public comments, and a statement of the changes, if any, that

were made in response to these comments.

(7) To complete a preliminary waiver request: Official confirmation

that the grantee wishes approval of the waiver request.

(8) To complete a preliminary waiver request: A statement of whether

any public comments were received after preparation of the preliminary

waiver request and, if so, copies and/or summaries of these comments

(including transcripts and/or summaries of any comments made on the

request at public meetings or hearings), and a statement of the changes,

if any, that were made in response to these comments.

(9) To complete a preliminary waiver request: A statement of whether

any

[[Page 496]]

material/substantive changes of fact have occurred in information

included in the preliminary waiver request since its submission, and, if

so, a description of the change(s).

(10) To complete a preliminary waiver request: A description of any

other changes to the preliminary request.

(d) ``Standard'' waiver. If the Department determines that a grantee

has meet the three criteria in paragraph (c)(2) of this section, has

provided all information required by paragraph (c) of this section, has

shown adequate concern for timely and meaningful public review and

comment, and has proposed weatherization that meets all relevant

requirements of title XXVI of Public Law 97-35 (42 U.S.C. 8621 et seq.)

and 45 CFR part 96, the Department will approve a ``standard'' waiver.

(e) ``Good cause'' waiver. (1) If a grantee does not meet one or

more of the three criteria in paragraph (c)(2) of this section, then the

grantee may submit documentation that demonstrates good cause why a

waiver should be granted despite the grantee's failure to meet this

criterion or these criteria. ``Good cause'' waiver requests must include

the following information, in addition to the information specified in

paragraph (c) of this section:

(i) For each criterion under paragraph (c)(2) of this section that

the grantee does not meet, an explanation of the specific reasons

demonstrating good cause why the grantee does not meet the criterion and

yet proposes to use additional funds for weatherization, citing

measurable, quantified data, and stating the source(s) of the data used;

(ii) A statement of the grantee's LIHEAP heating, cooling, and

crisis assistance eligibility standards (eligibility criteria) and

benefits levels for the fiscal year for which the waiver is requested

and for the preceding fiscal year; and, if eligibility standards were

less restrictive and/or benefit levels were higher in the preceding

fiscal year for one or more of these program components, an explanation

of the reasons demonstrating good cause why a waiver should be granted

in spite of this fact;

(iii) A statement of the grantee's opening and closing dates for

applications for LIHEAP heating, cooling, and crisis assistance in the

fiscal year for which the waiver is requested and in the preceding

fiscal year, and a description of the grantee's outreach efforts for

heating, cooling, and crisis assistance in the fiscal year for which the

waiver is requested and in the preceding fiscal year, and, if the

grantee's application period was longer and/or outreach efforts were

greater in the preceding fiscal year for one or more of these program

components, an explanation of the reasons demonstrating good cause why a

waiver should be granted in spite of this fact; and

(iv) If the grantee took, or will take, other actions that led, or

will lead, to a reduction in the number of applications for LIHEAP

heating, cooling, and/or crisis assistance, from the preceding fiscal

year to the fiscal year for which the waiver is requested, a description

of these actions and an explanation demonstrating good cause why a

waiver should be granted in spite of these actions.

(2) If the Department determines that a grantee requesting a ``good

cause'' waiver has demonstrated good cause why a waiver should be

granted, has provided all information required by paragraphs (c) and

(e)(1) of this section, has shown adequate concern for timely and

meaningful public review and comment, and has proposed weatherization

that meets all relevant requirements of title XXVI of Public Law 97-35

(42 U.S.C. 8621 et seq.) and 45 CFR part 96, the Department will approve

a ``good cause'' waiver.

(f) Approvals and disapprovals. After receiving the grantee's

complete waiver request, the Department will respond in writing within

45 days, informing the grantee whether the request is approved on either

a ``standard'' or ``good cause'' basis. The Department may request

additional information and/or clarification from the grantee. If

additional information and/or clarification is requested, the 45-day

period for the Department's response will start when the additional

information and/or clarification is received. No waiver will be granted

for a previous fiscal year.

[[Page 497]]

(g) Effective period. Waivers will be effective from the date of the

Department's written approval until the funds for which the waiver is

granted are obligated in accordance with title XXVI of Public Law 97-35

(42 U.S.C. 8621 et seq.) and 45 CFR part 96. Funds for which a

weatherization waiver was granted that are carried over to the following

fiscal year and used for weatherization shall not be considered ``funds

allotted'' or ``funds available'' for the purposes of calculating the

maximum amount that may be used for weatherization in the succeeding

fiscal year.

[60 FR 21358, May 1, 1995; 60 FR 33260, June 27, 1995]

Sec. 96.84 Miscellaneous

(a) Rights and responsibilities of territories. Except as otherwise

provided, a territory eligible for funds shall have the same rights and

responsibilities as a State.

(b) Applicability of assurances. The assurances in section 2605(b)

of Public Law 97-35 (42 U.S.C. 8624(b)), as amended, pertain to all

forms of assistance provided by the grantee, with the exception of

assurance 15, which applies to heating, cooling, and energy crisis

intervention assistance.

(c) Prevention of waste, fraud, and abuse. Grantees must establish

appropriate systems and procedures to prevent, detect, and correct

waste, fraud, and abuse in activities funded under the low-income home

energy assistance program. The systems and procedures are to address

possible waste, fraud, and abuse by clients, vendors, and administering

agencies.

[57 FR 1978, Jan. 16, 1992]

Sec. 96.85 Income Eligibility

(a) Application of poverty income guidelines. In implementing the

income eligibility standards in section 2605(b)(2) of Pub. L. 97-35 (42

U.S.C. 8624), grantees using the Federal Government's official poverty

income guidelines as a basis for determining eligibility for assistance

shall, by October 1 each year, adjust their income eligibility criteria

so that they are in accord with the most recently published update of

the guidelines. Grantees may adjust their income eligibility criteria to

accord with the most recently published revision to the poverty income

guidelines at any time between publication of the revision and the

following October 1.

(b) Adjustment of annual median income for household size. In order

to determine the State median income for households that have other than

four individuals, grantees shall adjust the State median income figures

(published annually by the Secretary), by the following percentages:

(1) One-person household, 52 percent;

(2) Two-person household, 68 percent;

(3) Three-person household, 84 percent;

(4) Four-person household, 100 percent;

(5) Five-person household, 116 percent;

(6) Six-person household, 132 percent; and

(7) For each additional household member above six persons, add

three percentage points to the percentage adjustment for a six-person

household.

[53 FR 6827, Mar. 3, 1988]

Sec. 96.86 Exemption from requirement for additional outreach

and intake services

The requirement in section 2605(b)(15) of Public Law 97-35 (42

U.S.C. 8624(b)(15)), as amended by section 704(a)(4) of the Augustus F.

Hawkins Human Services Reauthorization Act of 1990 (Pub. L. 101-501)--

concerning additional outreach and intake services--does not apply to:

(a) Indian tribes and tribal organizations; and

(b) Territories whose annual LIHEAP allotments under section 2602(b)

of Public Law 97-35 (42 U.S.C. 8621(b)) are $200,000 or less.

[57 FR 1978, Jan. 16, 1992]

Sec. 96.87 Leveraging incentive program

(a) Scope and eligible grantees. (1) This section concerns the

leveraging incentive program authorized by section 2607A of Public Law

97-35 (42 U.S.C. 8626a).

(2)(i) The only entities eligible to receive leveraging incentive

funds from the Department are States (including the District of

Columbia), Indian

[[Page 498]]

tribes, tribal organizations, and territories that received direct

Federal LIHEAP funding under section 2602(b) of Public Law 97-35 (42

U.S.C. 8621(b)) in both the base period for which leveraged resources

are reported, and the award period for which leveraging incentive funds

are sought; and tribes and tribal organizations described in paragraphs

(a)(2)(ii) and (a)(2)(iii) of this section.

(ii) Indian tribes that received LIHEAP services under section

2602(b) of Public Law 97-35 (42 U.S.C. 8621(b)) through a directly-

funded tribal organization in the base period for which leveraged

resources are reported, and receive direct Federal LIHEAP funding under

section 2602(b) in the award period, will receive leveraging incentive

funds allocable to them if they submit leveraging reports meeting all

applicable requirements. If the tribal organization continues to receive

direct funding under section 2602(b) in the award period, the tribal

organization also will receive incentive funds allocable to it if it

submits a leveraging report meeting all applicable requirements. In such

cases, incentive funds will be allocated among the involved entities

that submit leveraging reports, as agreed by these entities. If they

cannot agree, HHS will allocate incentive funds based on the comparative

role of each entity in obtaining and/or administering the leveraged

resources, and/or their relative number of LIHEAP-eligible households.

(iii) If a tribe received direct Federal LIHEAP funding under

section 2602(b) of Public Law 97-35 (42 U.S.C. 8621(b)) in the base

period for which resources leveraged by the tribe are reported, and the

tribe receives LIHEAP services under section 2602(b) through a directly-

funded tribal organization in the award period, the tribal organization

will receive leveraging incentive funds on behalf of the tribe for the

resources if the tribal organization submits a leveraging report meeting

all applicable requirements.

(b) Definitions--(1) Award period means the fiscal year during which

leveraging incentive funds are distributed to grantees by the

Department, based on the countable leveraging activities they reported

to the Department for the preceding fiscal year (the base period).

(2) Base period means the fiscal year for which a grantee's

leveraging activities are reported to the Department; grantees'

countable leveraging activities during the base period or base year are

the basis for the distribution of leveraging incentive funds during the

succeeding fiscal year (the award period or award year). Leveraged

resources are counted in the base period during which their benefits are

provided to low-income households.

(3) Countable loan fund means revolving loan funds and similar loan

instruments in which:

(i) The sources of both the loaned and the repaid funds meet the

requirements of this section, including the prohibitions of paragraphs

(f)(1), (f)(2), and (f)(3) of this section;

(ii) Neither the loaned nor the repaid funds are Federal funds or

payments from low-income households, and the loans are not made to low-

income households; and

(iii) The benefits provided by the loaned funds meet the

requirements of this section for countable leveraged resources and

benefits.

(4) Countable petroleum violation escrow funds means petroleum

violation escrow (oil overcharge) funds that were distributed to a State

or territory by the Department of Energy (DOE) after October 1, 1990,

and interest earned in accordance with DOE policies on petroleum

violation escrow funds that were distributed to a State or territory by

DOE after October 1, 1990, that:

(i) Were used to assist low-income households to meet the costs of

home energy through (that is, within and as a part of) a State or

territory's LIHEAP program, another Federal program, or a non-Federal

program, in accordance with a submission for use of these petroleum

violation escrow funds that was approved by DOE;

(ii) Were not previously required to be allocated to low-income

households; and

(iii) Meet the requirements of paragraph (d)(1) of this section, and

of paragraph (d)(2)(ii) or (d)(2)(iii) or this section.

[[Page 499]]

(5) Home energy means a source of heating or cooling in residential

dwellings.

(6) Low-income households means federally eligible (federally

qualified) households meeting the standards for LIHEAP income

eligibility and/or LIHEAP categorical eligibility as set by section

2605(b)(2) of Public Law 97-35 (42 U.S.C. 8624(b)(2)).

(7) Weatherization means low-cost residential weatherization and

other energy-related home repair for low-income households.

Weatherization must be directly related to home energy.

(c) LIHEAP funds used to identify, develop, and demonstrate

leveraging programs.

(1) Each fiscal year, States (excluding Indian tribes, tribal

organizations, and territories) may spend up to the greater of $35,000

or 0.08 percent of their net Federal LIHEAP allotments (funds payable)

allocated under section 2602(b) of Public Law 97-35 (42 U.S.C. 8621(b))

specifically to identify, develop, and demonstrate leveraging programs

under section 2607A(c)(2) of Public Law 97-35 (42 U.S.C. 8626a(c)(2)).

Each fiscal year, Indian tribes, tribal organizations, and territories

may spend up to the greater of two (2.0) percent or $100 of their

Federal LIHEAP allotments allocated under section 2602(b) of Public law

97-35 (42 U.S.C. 8621(b)) specifically to identify, develop, and

demonstrate leveraging programs under section 2607A(c)(2) of Public Law

97-35 (42 U.S.C. 8626a(c)(2)). For the purpose of this paragraph,

Federal LIHEAP allotments include funds from regular and supplemental

appropriations, with the exception of leveraging incentive funds

provided under section 2602(d) of Public Law 97-35 (42 U.S.C. 8621(d)).

(2) LIHEAP funds used under section 2607A(c)(2) of Public Law 97-35

(42 U.S.C. 8626a(c)(2)) specifically to identify, develop, and

demonstrate leveraging programs are not subject to the limitation in

section 2605(b)(9) of Public Law 97-35 (42 U.S.C. 8624(b)(9)) on the

maximum percent of Federal funds that may be used for costs of planning

and administration.

(d) Basic requirements for leveraged resources and benefits. (1) In

order to be counted under the leveraging incentive program, leveraged

resources and benefits must meet all of the following five criteria:

(i) They are from non-Federal sources.

(ii) They are provided to the grantee's low-income home energy

assistance program, or to federally qualified low-income households as

described in section 2605(b)(2) of Public Law 97-35 (42 U.S.C.

8624(b)(2)).

(iii) They are measurable and quantifiable in dollars.

(iv) They represent a net addition to the total home energy

resources available to low-income households in excess of the amount of

such resources that could be acquired by these households through the

purchase of home energy, or the purchase of items that help these

households meet the cost of home energy, at commonly available household

rates or costs, or that could be obtained with regular LIHEAP allotments

provided under section 2602(b) of Public Law 97-35 (42 U.S.C. 8621(b)).

(v) They meet the requirements for countable leveraged resources and

benefits throughout this section and section 2607A of Public Law 97-35

(42 U.S.C. 8626a).

(2) Also, in order to be counted under the leveraging incentive

program, leveraged resources and benefits must meet at least one of the

following three criteria:

(i) The grantee's LIHEAP program had an active, substantive role in

developing and/or acquiring the resource/benefits from home energy

vendor(s) through negotiation, regulation, and/or competitive bid. The

actions or efforts of one or more staff of the grantee's LIHEAP

program--at the central and/or local level--and/or one or more staff of

LIHEAP program subrecipient(s) acting in that capacity, were substantial

and significant in obtaining the resource/benefits from the vendor(s).

(ii) The grantee appropriated or mandated the resource/benefits for

distribution to low-income households through (that is, within and as a

part of) its LIHEAP program. The resource/benefits are provided through

the grantee's LIHEAP program to low-income households eligible under the

grantee's LIHEAP standards, in accordance with the LIHEAP statute and

regulations

[[Page 500]]

and consistent with the grantee's LIHEAP plan and program policies that

were in effect during the base period, as if they were provided from the

grantee's Federal LIHEAP allotment.

(iii) The grantee appropriated or mandated the resource/benefits for

distribution to low-income households as described in its LIHEAP plan

(referred to in section 2605(c)(1)(A) of Public Law 97-35) (42 U.S.C.

8624(c)(1)(A)). The resource/benefits are provided to low-income

households as a supplement and/or alternative to the grantee's LIHEAP

program, outside (that is, not through, within, or as a part of) the

LIHEAP program. The resource/benefits are integrated and coordinated

with the grantee's LIHEAP program. Before the end of the base period,

the plan identifies and describes the resource/benefits, their

source(s), and their integration/coordination with the LIHEAP program.

The Department will determine resources/benefits to be integrated and

coordinated with the LIHEAP program if they meet at least one of the

following eight conditions. If a resource meets at least one of

conditions A through F when the grantee's LIHEAP program is operating

(and meets all other applicable requirements), the resource also is

countable when the LIHEAP program is not operating.

(A) For all households served by the resource, the assistance

provided by the resource depends on and is determined by the assistance

provided to these households by the grantee's LIHEAP program in the base

period. The resource supplements LIHEAP assistance that was not

sufficient to meet households' home energy needs, and the type and

amount of assistance provided by the resource is directly affected by

the LIHEAP assistance received by the households.

(B) Receipt of LIHEAP assistance in the base period is necessary to

receive assistance from the resource. The resource serves only

households that received LIHEAP assistance in the base period.

(C) Ineligibility for the grantee's LIHEAP program, or denial of

LIHEAP assistance in the base period because of unavailability of LIHEAP

funds, is necessary to receive assistance from the resource.

(D) For discounts and waivers: eligibility for and/or receipt of

assistance under the grantee's LIHEAP program in the base period, and/or

eligibility under the Federal standards set by section 2605(b)(2) of

Public Law 97-35 (42 U.S.C. 8624(b)(2)), is necessary to receive the

discount or waiver.

(E) During the period when the grantee's LIHEAP program is

operating, staff of the grantee's LIHEAP program and/or staff assigned

to the LIHEAP program by a local LIHEAP administering agency or

agencies, and staff assigned to the resource communicate orally and/or

in writing about how to meet the home energy needs of specific,

individual households. For the duration of the LIHEAP program, this

communication takes place before assistance is provided to each

household to be served by the resource, unless the applicant for

assistance from the resource presents documentation of LIHEAP

eligibility and/or the amount of LIHEAP assistance received or to be

received.

(F) A written agreement between the grantee's LIHEAP program or

local LIHEAP administering agency, and the agency administering the

resource, specifies the following about the resource: eligibility

criteria; benefit levels; period of operation; how the LIHEAP program

and the resource are integrated/coordinated; and relationship between

LIHEAP eligibility and/or benefit levels, and eligibility and/or benefit

levels for the resource. The agreement provides for annual or more

frequent reports to be provided to the LIHEAP program by the agency

administering the resource.

(G) The resource accepts referrals from the grantee's LIHEAP

program, and as long as the resource has benefits available, it provides

assistance to all households that are referred by the LIHEAP program and

that meet the resource's eligibility requirements. Under this condition,

only the benefits provided to households referred by the LIHEAP program

are countable.

(H) Before the grantee's LIHEAP heating, cooling, crisis, and/or

weatherization assistance component(s) open and/or after the grantee's

LIHEAP heating, cooling, crisis, and/or weatherization assistance

component(s) close

[[Page 501]]

for the season or for the fiscal year, or before the entire LIHEAP

program opens and/or after the entire LIHEAP program closes for the

season or for the fiscal year, the resource is made available

specifically to fill the gap caused by the absence of the LIHEAP

component(s) or program. The resource is not available while the LIHEAP

component(s) or program is operating.

(e) Countable leveraged resources and benefits. Resources and

benefits that are countable under the leveraging incentive program

include but are not limited to the following, provided that they also

meet all other applicable requirements:

(1) Cash resources: State, tribal, territorial, and other public and

private non-Federal funds, including countable loan funds and countable

petroleum violation escrow funds as defined in paragraphs (b)(3) and

(b)(4) of this section, that are used for:

(i) Heating, cooling, and energy crisis assistance payments and cash

benefits made in the base period to or on behalf of low-income

households toward their home energy costs (including home energy bills,

taxes on home energy sales/purchases and services, connection and

reconnection fees, application fees, late payment charges, bulk fuel

tank rental or purchase costs, and security deposits that are retained

for six months or longer);

(ii) Purchase of fuels that are provided to low-income households in

the base period for home energy (such as fuel oil, liquefied petroleum

gas, and wood);

(iii) Purchase of weatherization materials that are installed in

recipients' homes in the base period;

(iv) Purchase of the following tangible items that are provided to

low-income households and/or installed in recipients' homes in the base

period: blankets, space heating devices, equipment, and systems; space

cooling devices, equipment, and systems; and other tangible items that

help low-income households meet the costs of home energy and are

specifically approved by the Department as countable leveraged

resources;

(v) Installation, replacement, and repair of the following in the

base period: weatherization materials; space heating devices, equipment,

and systems; space cooling devices, equipment, and systems; and other

tangible items that help low-income households meet the costs of home

energy and are specifically approved by the Department;

(vi) The following services, when they are an integral part of

weatherization to help low-income households meet the costs of home

energy in the base period: installation, replacement, and repair of

windows, exterior doors, roofs, exterior walls, and exterior floors;

pre-weatherization home energy audits of homes that were weatherized as

a result of these audits; and post-weatherization inspection of homes;

and

(vii) The following services, when they are provided (carried out)

in the base period: installation, replacement, and repair of smoke/fire

alarms that are an integral part, and necessary for safe operation, of a

home heating or cooling system installed or repaired as a weatherization

activity; and asbestos removal and that is an integral part of, and

necessary to carry out, weatherization to help low-income households

meet the costs of home energy.

(2) Home energy discounts and waivers that are provided in the base

period to low-income households and pertain to generally applicable

prices, rates, fees, charges, costs, and/or requirements, in the amount

of the discount, reduction, waiver, or forgiveness, or that apply to

certain tangible fuel and non-fuel items and to certain services, that

are provided in the base period to low-income households and help these

households meet the costs of home energy, in the amount of the discount

or reduction:

(i) Discounts or reductions in utility and bulk fuel prices, rates,

or bills;

(ii) Partial or full forgiveness of home energy bill arrearages;

(iii) Partial or full waivers of utility and other home energy

connection and reconnection fees, application fees, late payment

charges, bulk fuel tank rental or purchase costs, and home energy

security deposits that are retained for six months or longer;

(iv) Reductions in and partial or full waivers of non-Federal taxes

on home energy sales/purchases and services, and reductions in and

partial or full

[[Page 502]]

waivers of other non-Federal taxes provided as tax ``credits'' to low-

income households to offset their home energy costs, except when Federal

funds or Federal tax ``credits'' provide payment or reimbursement for

these reductions/waivers;

(v) Discounts or reductions in the cost of the following tangible

items that are provided to low-income households and/or installed in

recipients' homes: weatherization materials; blankets; space heating

devices, equipment, and systems; space cooling devices, equipment, and

systems; and other tangible items that are specifically approved by the

Department;

(vi) Discounts or reductions in the cost of installation,

replacement, and repair of the following: weatherization materials;

space heating devices, equipment, and systems; space cooling devices,

equipment, and systems; and other tangible items that help low-income

households meet the costs of home energy and are specifically approved

by the Department;

(vii) Discounts or reductions in the cost of the following services,

when the services are an integral part of weatherization to help low-

income households meet the costs of home energy: installation,

replacement, and repair of windows, exterior doors, roofs, exterior

walls, and exterior floors; pre-weatherization home energy audits of

homes that were weatherized as a result of these audits; and post-

weatherization inspection of homes; and

(viii) Discounts or reductions in the cost of installation,

replacement, and repair of smoke/fire alarms that are an integral part,

and necessary for safe operation, of a home heating or cooling system

installed or repaired as a weatherization activity; and discounts or

reductions in the cost of asbestos removal that is an integral part of,

and necessary to carry out, weatherization to help low-income households

meet the costs of home energy.

(3) Certain third-party in-kind contributions that are provided in

the base period to low-income households:

(i) Donated fuels used by recipient households for home energy (such

as fuel oil, liquefied petroleum gas, and wood);

(ii) Donated weatherization materials that are installed in

recipients' homes;

(iii) Donated blankets; donated space heating devices, equipment,

and systems; donated space cooling devices, equipment, and systems; and

other donated tangible items that help low-income households meet the

costs of home energy and are specifically approved by the Department as

countable leveraged resources;

(iv) Unpaid volunteers' services specifically to install, replace,

and repair the following: weatherization materials; space heating

devices, equipment, and systems; space cooling devices, equipment, and

systems; and other items that help low-income households meet the costs

of home energy and are specifically approved by the Department;

(v) Unpaid volunteers' services specifically to provide (carry out)

the following, when these services are an integral part of

weatherization to help low-income households meet the costs of home

energy: installation, replacement, and repair of windows, exterior

doors, roofs, exterior walls, and exterior floors; pre-weatherization

home energy audits of homes that were weatherized as a result of these

audits; and post-weatherization inspection of homes;

(vi) Unpaid volunteers' services specifically to: install, replace,

and repair smoke/fire alarms as an integral part, and necessary for safe

operation, of a home heating or cooling system installed or repaired as

a weatherization activity; and remove asbestos as an integral part of,

and necessary to carry out, weatherization to help low-income households

meet the costs of home energy;

(vii) Paid staff's services that are donated by the employer

specifically to install, replace, and repair the following:

weatherization materials; space heating devices, equipment, and systems;

space cooling devices, equipment, and systems; and other items that help

low-income households meet the costs of home energy and are specifically

approved by the Department;

(viii) Paid staff's services that are donated by the employer

specifically to provide (carry out) the following, when

[[Page 503]]

these services are an integral part of weatherization to help low-income

households meet the costs of home energy: installation, replacement, and

repair of windows, exterior doors, roofs, exterior walls, and exterior

floors; pre-weatherization home energy audits of homes that were

weatherized as a result of these audits; and post-weatherization

inspection of homes; and

(ix) Paid staff's services that are donated by the employer

specifically to: install, replace, and repair smoke/fire alarms as an

integral part, and necessary for safe operation, of a home heating or

cooling system installed or repaired as a weatherization activity; and

remove asbestos as an integral part of, and necessary to carry out,

weatherization to help low-income households meet the costs of home

energy.

(f) Resources and benefits that cannot be counted. The following

resources and benefits are not countable under the leveraging incentive

program:

(1) Resources (or portions of resources) obtained, arranged,

provided, contributed, and/or paid for, by a low-income household for

its own benefit, or which a low-income household is responsible for

obtaining or required to provide for its own benefit or for the benefit

of others, in order to receive a benefit of some type;

(2) Resources (or portions of resources) provided, contributed, and/

or paid for by building owners, building managers, and/or home energy

vendors, if the cost of rent, home energy, or other charge(s) to the

recipient were or will be increased, or if other charge(s) to the

recipient were or will be imposed, as a result;

(3) Resources (or portions of resources) directly provided,

contributed, and/or paid for by member(s) of the recipient household's

family (parents, grandparents, great-grandparents, sons, daughters,

grandchildren, great-grandchildren, brothers, sisters, aunts, uncles,

first cousins, nieces, and nephews, and their spouses), regardless of

whether the family member(s) lived with the household, unless the family

member(s) also provided the same resource to other low-income households

during the base period and did not limit the resource to members of

their own family;

(4) Deferred home energy obligations;

(5) Projected future savings from weatherization;

(6) Delivery, and discounts in the cost of delivery, of fuel,

weatherization materials, and all other items;

(7) Purchase, rental, donation, and loan, and discounts in the cost

of purchase and rental, of: supplies and equipment used to deliver fuel,

weatherization materials, and all other items; and supplies and

equipment used to install and repair weatherization materials and all

other items;

(8) Petroleum violation escrow (oil overcharge) funds that do not

meet the definition in paragraph (b)(4) of this section;

(9) Interest earned/paid on petroleum violation escrow funds that

were distributed to a State or territory by the Department of Energy on

or before October 1, 1990;

(10) Interest earned/paid on Federal funds;

(11) Interest earned/paid on customers' security deposits, utility

deposits, etc., except when forfeited by the customer and used to

provide countable benefits;

(12) Borrowed funds that do not meet the requirements in paragraph

(b)(3) above (including loans made by and/or to low-income households),

interest paid on borrowed funds, and reductions in interest paid on

borrowed funds;

(13) Resources (or portions of resources) for which Federal payment

or reimbursement has been or will be provided/received;

(14) Tax deductions and tax credits received from any unit(s) of

government by donors/contributors of resources for these donations, and

by vendors for providing rate reductions, discounts, waivers, credits,

and/or arrearage forgiveness to or for low-income households, etc.;

(15) Funds and other resources that have been or will be used as

matching or cost sharing for any Federal program;

(16) Leveraged resources counted under any other Federal leveraging

incentive program;

(17) Costs of planning and administration, space costs, and intake

costs;

[[Page 504]]

(18) Outreach activities, budget counseling, case management, and

energy conservation education;

(19) Training;

(20) Installation, replacement, and repair of lighting fixtures and

light bulbs;

(21) Installation, replacement, and repair of smoke/fire alarms that

are not an integral part, and necessary for safe operation, of a home

heating or cooling system installed or repaired as a weatherization

activity;

(22) Asbestos removal that is not an integral part of, and necessary

to carry out, weatherization to help low-income households meet the

costs of home energy;

(23) Paid services where payment is not made from countable

leveraged resources, unless these services are donated as a countable

in-kind contribution by the employer;

(24) All in-kind contributions except those described in paragraph

(e)(3) of this section; and

(25) All other resources that do not meet the requirements of this

section and of section 2607A of Public Law 97-35 (42 U.S.C. 8626a).

(g) Valuation and documentation of leveraged resources and

offsetting costs.

(1) Leveraged cash resources will be valued at the fair market value

of the benefits they provided to low-income households, as follows.

Payments to or on behalf of low-income households for heating, cooling,

and energy crisis assistance will be valued at their actual amount or

value at the time they were provided. Purchased fuel, weatherization

materials, and other countable tangible items will be valued at their

fair market value (the commonly available household rate or cost in the

local market area) at the time they were purchased. Installation,

replacement, and repair of weatherization materials, and other countable

services, will be valued at rates consistent with those ordinarily paid

for similar work, by persons of similar skill in this work, in the

grantee's or subrecipient's organization in the local area, at the time

these services were provided. If the grantee or subrecipient does not

have employees performing similar work, the rates will be consistent

with those ordinarily paid by other employers for similar work, by

persons of similar skill in this work, in the same labor market, at the

time these services were provided. Fringe benefits and overhead costs

will not be counted.

(2) Home energy discounts, waivers, and credits will be valued at

their actual amount or value.

(3) Donated fuel, donated weatherization materials, and other

countable donated tangible items will be valued at their fair market

value (the commonly available household cost in the local market area)

at the time of donation.

(4) Donated unpaid services, and donated third-party paid services

that are not in the employee's normal line of work, will be valued at

rates consistent with those ordinarily paid for similar work, by persons

of similar skill in this work, in the grantee's or subrecipient's

organization in the local area, at the time these services were

provided. If the grantee or subrecipient does not have employees

performing similar work, the rates will be consistent with those

ordinarily paid by other employers for similar work, by persons of

similar skill in this work, in the same labor market, at the time these

services were provided. Fringe benefits and overhead costs will not be

counted. Donated third-party paid services of employees in their normal

line of work will be valued at the employee's regular rate of pay,

excluding fringe benefits and overhead costs.

(5) Offsetting costs and charges will be valued at their actual

amount or value.

(i) Funds from grantees' regular LIHEAP allotments that are used

specifically to identify, develop, and demonstrate leveraging programs

under section 2607A(c)(2) of Public Law 97-35 (42 U.S.C. 8626a(c)(2))

will be deducted as offsetting costs in the base period in which these

funds are obligated, whether or not there are any resulting leveraged

benefits. Costs incurred from grantees' own funds to identify, develop,

and demonstrate leveraging programs will be deducted in the first base

period in which resulting leveraged benefits are provided to low-income

households. If there is no resulting leveraged benefit from the

expenditure of the grantee's own funds, the grantee's

[[Page 505]]

expenditure will not be counted or deducted.

(ii) Any costs assessed or charged to low-income households on a

continuing or on-going basis, year after year, specifically to

participate in a counted leveraging program or to receive counted

leveraged resources/benefits will be deducted in the base period these

costs are paid. Any one-time costs or charges to low-income households

specifically to participate in a counted leveraging program or to

receive counted leveraged resources/benefits will be deducted in the

first base period the leveraging program or resource is counted. Such

costs or charges will be subtracted from the gross value of a counted

resource or benefit for low-income households whose benefits are

counted, but not for any households whose benefits are not counted.

(6) Only the amount of the net addition to recipient low-income

households' home energy resources may be counted in the valuation of a

leveraged resource.

(7) Leveraged resources and benefits, and offsetting costs and

charges, will be valued according to the best data available to the

grantee.

(8) Grantees must maintain, or have readily available, records

sufficient to document leveraged resources and benefits, and offsetting

costs and charges, and their valuation. These records must be retained

for three years after the end of the base period whose leveraged

resources and benefits they document.

(h) Leveraging report. (1) In order to qualify for leveraging

incentive funds, each grantee desiring such funds must submit to the

Department a report on the leveraged resources provided to low-income

households during the preceeding base period. These reports must contain

the following information in a format established by the Department.

(i) For each separate leveraged resource, the report must:

(A) Briefly describe the specific leveraged resource and the

specific benefit(s) provided to low-income households by this resource,

and state the source of the resource;

(B) State whether the resource was acquired in cash, as a discount/

waiver, or as an in-kind contribution;

(C) Indicate the geographical area in which the benefit(s) were

provided to recipients;

(D) State the month(s) and year(s) when the benefit(s) were provided

to recipients;

(E) State the gross dollar value of the countable benefits provided

by the resource as determined in accordance with paragraph (g) of this

section, indicate the source(s) of the data used, and describe how the

grantee quantified the value and calculated the total amount;

(F) State the number of low-income households to whom the benefit(s)

were provided, and state the eligibility standard(s) for the low-income

households to whom the benefit(s) were provided;

(G) Indicate the agency or agencies that administered the resource/

benefit(s); and

(H) Indicate the criterion or criteria for leveraged resources in

paragraph (d)(2) of this section that the resource/benefits meet, and

for criteria in paragraphs (d)(2)(i) and (d)(2)(iii) of this section,

explain how resources/benefits valued at $5,000 or more meet the

criterion or criteria.

(ii) State the total gross dollar value of the countable leveraged

resources and benefits provided to low-income households during the base

period (the sum of the amounts listed pursuant to paragraph (h)(1)(i)(E)

of this section).

(iii) State in dollars any costs incurred by the grantee to leverage

resources, and any costs and charges imposed on low-income households to

participate in a counted leveraging program or to receive counted

leveraged benefits, as determined in accordance with paragraph (g)(5) of

this section. Also state the amount of the grantee's regular LIHEAP

allotment that the grantee used during the base period specifically to

identify, develop, and demonstrate leveraging programs under section

2607A(c)(2) of Public Law 97-35 (42 U.S.C. 8626a(c)(2)).

(iv) State the net dollar value of the countable leveraged resources

and benefits for the base period. (Subtract the amounts in paragraph

(h)(1)(iii) of this

[[Page 506]]

section from the amount in paragraph (h)(1)(ii) of this section.)

(2) Leveraging reports must be postmarked or hand-delivered not

later than November 30 of the fiscal year for which leveraging incentive

funds are requested.

(3) The Department may require submission of additional

documentation and/or clarification as it determines necessary to verify

information in a grantee's leveraging report, to determine whether a

leveraged resource is countable, and/or to determine the net valuation

of a resource. In such cases, the Department will set a date by which it

must receive information sufficient to document countability and/or

valuation. In such cases, if the Department does not receive information

that it considers sufficient to document countability and/or valuation

by the date it has set, then the Department will not count the resource

(or portion of resource) in question.

(i) Determination of grantee shares of leveraging incentive funds.

Allocation of leveraging incentive funds to grantees will be computed

according to a formula using the following factors and weights:

(1) Fifty (50) percent based on the final net value of countable

leveraged resources provided to low-income households during the base

period by a grantee relative to its net Federal allotment of funds

allocated under section 2602(b) of Public Law 97-35 (42 U.S.C. 8621(b))

during the base period, as a proportion of the final net value of the

countable leveraged resources provided by all grantees during the base

period relative to their net Federal allotment of funds allocated under

that section during the base period; and

(2) Fifty (50) percent based on the final net value of countable

leveraged resources provided to low-income households during the base

period by a grantee as a proportion of the total final net value of the

countable leveraged resources provided by all grantees during the base

period; except that: No grantee may receive more than twelve (12.0)

percent of the total amount of leveraging incentive funds available for

distribution to grantees in any award period; and no grantee may receive

more than the smaller of its net Federal allotment of funds allocated

under section 2602(b) of Public Law 97-35 (42 U.S.C. 8621(b)) during the

base period, or two times (double) the final net value of its countable

leveraged resources for the base period. The calculations will be based

on data contained in the leveraging reports submitted by grantees under

paragraph (h) of this section as approved by the Department, and

allocation data developed by the Department.

(j) Uses of leveraging incentive funds.

(1) Funds awarded to grantees under the leveraging incentive program

must be used to increase or maintain heating, cooling, energy crisis,

and/or weatherization benefits through (that is, within and as a part

of) the grantee's LIHEAP program. These funds can be used for

weatherization without regard to the weatherization maximum in section

2605(k) of Public Law 97-35 (42 U.S.C. 8624(k)). However, they cannot be

counted in the base for calculation of the weatherization maximum for

regular LIHEAP funds authorized under section 2602(b) of Public Law 97-

35 (42 U.S.C. 8621(b)). Leveraging incentive funds cannot be used for

costs of planning and administration. However, in either the award

period or the fiscal year following the award period, they can be

counted in the base for calculation of maximum grantee planning and

administrative costs under section 2605(b)(9) of Public Law 97-35 (42

U.S.C. 8624(b)(9)). They cannot be counted in the base for calculation

of maximum carryover of regular LIHEAP funds authorized under section

2602(b) of Public Law 97-35 (42 U.S.C. 8621(b)).

(2) Grantees must include the uses of leveraging incentive funds in

their LIHEAP plans (referred to in section 2605(c)(1)(A) of Public Law

97-35) (42 U.S.C. 8624(c)(1)(A)) for the fiscal year in which the

grantee obligates these funds. Grantees must document uses of leveraging

incentive funds in the same way they document uses of regular LIHEAP

funds authorized under section 2602(b) of Public Law 97-35 (42 U.S.C.

8621(b)). Leveraging incentive funds are subject to the same audit

requirements as regular LIHEAP funds.

(k) Period of obligation for leveraging incentive funds. Leveraging

incentive

[[Page 507]]

funds are available for obligation during both the award period and the

fiscal year following the award period, without regard to limitations on

carryover of funds in section 2607(b)(2)(B) of Public Law 97-35 (42

U.S.C. 8626(b)(2)(B)). Any leveraging incentive funds not obligated for

allowable purposes by the end of this period must be returned to the

Department.

[60 FR 21359, May 1, 1995; 60 FR 36334, July 14, 1995]

Sec. 96.88 Administrative costs

(a) Costs of planning and administration. Any expenditure for

governmental functions normally associated with administration of a

public assistance program must be included in determining administrative

costs subject to the statutory limitation on administrative costs,

regardless of whether the expenditure is incurred by the State, a

subrecipient, a grantee, or a contractor of the State.

(b) Administrative costs for territories and Indian tribes. For

Indian tribes, tribal organizations and territories with allotments of

$20,000 or less, the limitation on the cost of planning and

administering the low-income home energy assistance program shall be 20

percent of funds payable and not transferred for use under another block

grant. For tribes, tribal organizations and territories with allotments

over $20,000, the limitation on the cost of planning and administration

shall be $4,000 plus 10% of the amount of funds payable (and not

transferred for use under another block grant) that exceeds $20,000.

[52 FR 37967, Oct. 13, 1987]

Sec. 96.89 Exemption from standards for providing energy

crisis intervention assistance

The performance standards in section 2604(c) of Pub. L. 97-35 (42

U.S.C. 8623), as amended by section 502(a) of the Human Services

Reauthorization Act of 1986 (Pub. L. 99-425)--concerning provision of

energy crisis assistance within specified time limits, acceptance of

applications for energy crisis benefits at geographically accessible

sites, and provision to physically infirm low-income persons of the

means to apply for energy crisis benefits at their residences or to

travel to application sites--shall not apply under the conditions

described in this section.

(a) These standards shall not apply to a program in a geographical

area affected by (1) a major disaster or emergency designated by the

President under the Disaster Relief Act of 1974, or (2) a natural

disaster identified by the chief executive officer of a State,

territory, or direct-grant Indian tribe or tribal organization, if the

Secretary (or his or her designee) determines that the disaster or

emergency makes compliance with the standards impracticable.

(b) The Secretary's determination will be made after communication

by the chief executive officer (or his or her designee) to the Secretary

(or his or her designee) of the following:

(1) Information substantiating the existence of a disaster or

emergency;

(2) Information substantiating the impracticability of compliance

with the standards, including a description of the specific conditions

caused by the disaster or emergency which make compliance impracticable;

and

(3) Information on the expected duration of the conditions that make

compliance impracticable.

If the communication is made by the chief executive officer's designee

and the Department does not have on file written evidence of the

designation, the communication must also include:

(4) Evidence of the appropriate delegation of authority.

(c) The initial communication by the chief executive officer may be

oral or written. If oral, it must be followed as soon as possible by

written communication confirming the information provided orally. The

Secretary's exemption initially may be oral. If so, the Secretary will

provide written confirmation of the exemption as soon as possible after

receipt of appropriate written communication from the chief executive

officer.

(d) Exemption from the standards shall apply from the moment of the

Secretary's determination, only in the geographical area affected by the

disaster or emergency, and only for so long as the Secretary determines

that the

[[Page 508]]

disaster or emergency makes compliance with the standards impracticable.

[53 FR 6827, Mar. 3, 1988]