[Federal Register Volume 75, Number 47 (Thursday, March 11, 2010)]
[Rules and Regulations]
[Pages 11419-11422]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5195]



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  Federal Register / Vol. 75, No. 47 / Thursday, March 11, 2010 / Rules 
and Regulations  

[[Page 11419]]



DEPARTMENT OF ENERGY

10 CFR Part 440

RIN 1904-AC16


Weatherization Assistance for Low-Income Persons: Maintaining the 
Privacy of Applicants for and Recipients of Services

AGENCY: Office of Energy Efficiency and Renewable Energy, Department of 
Energy.

ACTION: Interim final rule.

-----------------------------------------------------------------------

SUMMARY: The U.S. Department of Energy (DOE) is amending its 
regulations to require all States and other service providers that 
participate in the Weatherization Assistance Program (WAP) to treat all 
requests for information concerning applicants and recipients of WAP 
funds in a manner consistent with the Federal government's treatment of 
information requested under the Freedom of Information Act (FOIA), 5 
U.S.C. 552, including the privacy protections contained in Exemption 
(b)(6) of the FOIA, 5 U.S.C. 552(b)(6).

DATES: Effective Date: This interim final rule is effective March 11, 
2010 through December 6, 2010.
    Comment Due Date: Comments on this interim final rule must be 
postmarked by no later than April 12, 2010.

ADDRESSES: Comments may be submitted using any of the following 
methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include RIN 1901-
AC16 in the subject line of the message.
     Postal Mail: Robert Adams, U.S. Department of Energy, 
Office of Energy Efficiency and Renewable Energy, Weatherization 
Assistance Program, EE-2K, 950 L'Enfant Plaza, SW., Room P201D, 
Washington, DC 20585-0121. Please submit one signed original paper 
copy.
     Hand Delivery/Courier: Robert Adams, U.S. Department of 
Energy, Office of Energy Efficiency and Renewable Energy, 
Weatherization Assistance Program, EE-2K, 950 L'Enfant Plaza, SW., Room 
P201D, Washington, DC 20585-0121. Please submit one signed original 
paper copy.
    The public may review copies of all materials related to this 
rulemaking at the U.S. Department of Energy, Resource Room of the 
Building Technologies Program, 950 L'Enfant Plaza, SW., Suite 600, 
Washington, DC, (202) 586-2945, between 9 a.m. and 4 p.m., Monday 
through Friday, except Federal holidays. Please call Ms. Brenda Edwards 
at the above telephone number for additional information regarding 
visiting the Resource Room.

FOR FURTHER INFORMATION CONTACT: 
    Robert Adams, U.S. Department of Energy, Office of Energy 
Efficiency and Renewable Energy, Weatherization Assistance Program, EE-
2K, 950 L'Enfant Plaza, SW., Room P201D, Washington, DC 20585-0121, 
(202) 287-1591, e-mail: [email protected].
    Bryan Miller, Esq., U.S. Department of Energy, Office of General 
Counsel, 1000 Independence Avenue, SW., Washington, DC 20585, (202) 
586-8627.

SUPPLEMENTARY INFORMATION:

I. Authority and Background

    Title IV, Energy Conservation and Production Act, as amended, 
authorizes DOE to administer the WAP. All grant awards made under this 
Program shall comply with applicable authorities, including regulations 
contained in Title 10 of the Code of Federal Register (10 CFR) Part 
440.

II. Discussion

    This rule applies to States, Tribes and their subawardees, 
including, but not limited to subrecipients, subgrantees, contractors 
and subcontractors (hereinafter ``service providers''). DOE does not 
collect or maintain personal information regarding individuals applying 
for or receiving assistance under the WAP. Generally, DOE provides 
funding to States, which in turn provide funding to entities that 
manage weatherization projects (``weatherization service providers''), 
which, in turn, collect applicant information and make financial 
assistance awards to eligible applicants. The records collected by 
States and weatherization service providers in the course of 
administering the WAP are not Federal records for the purposes of 
applicable Federal law; however, DOE recognizes that a strong 
imperative exists to safeguard the privacy interests of individuals who 
participate in the programs that it administers. Therefore, the 
Department has concluded that it is prudent to provide formal standards 
for States and other service providers in responding to requests for 
personal information.
    States receiving funds under the WAP have received requests for 
information regarding the implementation of programs funded through the 
American Recovery and Reinvestment Act. The information requests range 
from informal inquiries by local elected officials and other community 
leaders to requests for specific information about applicants and/or 
recipients from local and regional press outlets. Due, in part, to the 
increased levels of funding for the WAP--$5 billion over three years--
we anticipate that there will be a number of similar such requests. DOE 
adheres to the transparency requirements placed on WAP and other 
government financial assistance programs instituted by the 
Administration and encourages the dissemination of information that 
provides insight into the government's use of WAP funding. FOIA clearly 
requires DOE to apply the Exemption (b)(6) balancing test to DOE 
records containing the personal information of individuals. Therefore, 
DOE hereby extends this requirement to States and other service 
providers that participate in the WAP to protect sensitive personal 
information in a manner consistent with DOE's obligations under the 
FOIA. DOE is committed to protecting the privacy of individuals who 
apply for or receive WAP funding.
    By this interim final rule, DOE is requiring all States and other 
service providers under the WAP to apply the same balancing test set 
forth under FOIA Exemption (b)(6), 5 U.S.C. 552(b)(6), to WAP related 
information in the possession of the States and service providers that 
DOE would apply in considering the release of similar information. 
Thus, this minimum privacy protection applicable to

[[Page 11420]]

requests for WAP related information ensures that any request for such 
information must be analyzed using the same paradigm as a FOIA analysis 
in order to determine whether to release the information.
    Given a legitimate, articulated public interest in the disclosure, 
States and other service providers may release information regarding 
recipients in the aggregate that does not identify specific 
individuals. For example, information on the number of recipients in a 
county, city, or a zip code does not compromise the privacy of the WAP 
recipients. A State or other service provider may therefore disclose 
such aggregated information. However, the release of any information 
that personally identifies an individual or is linked or linkable to a 
specific individual must be carefully scrutinized using the principles 
of Exemption (b)(6).
    Pursuant to FOIA Exemption (b)(6), records that contain personal 
information including but not limited to, names, addresses, and income 
information, are generally exempt from disclosure. Exemption (b)(6) is 
generally referred to as the ``personal privacy'' exemption; it 
provides that the disclosure requirements of FOIA do not apply to 
``personnel and medical files and similar files the disclosure of which 
would constitute a clearly unwarranted invasion of personal privacy.''
    In applying Exemption (b)(6), courts apply a balancing test in 
order to determine: (1) Whether a significant privacy interest would be 
invaded; (2) whether the release of the information would further the 
public interest by shedding light on the operations or activities of 
the Government; and (3) whether in balancing the privacy interests 
against the public interest, disclosure would constitute a clearly 
unwarranted invasion of privacy. A request for personal information 
including but not limited to the names, addresses, or income 
information of WAP applicants or recipients would require the State or 
other service provider to balance a clearly defined public interest in 
obtaining this information against the individuals' legitimate 
expectation of privacy.
    Individuals have a strong privacy interest in protecting personal 
information including names, addresses, and financial information such 
as income levels or ranges, receipt of Government assistance, or any 
personal information likely to cause the individual involved personal 
distress or embarrassment. Absent a compelling public interest in 
disclosure, including the unavailability of less intrusive means of 
obtaining the information, the balancing test will generally favor the 
personal privacy interests of the individual. The burden of persuasion 
is on the requester claiming the public interest. Such assertions of 
public interest are closely scrutinized by courts to ensure that they 
legitimately warrant overriding important privacy interests and that a 
nexus exists between the information at issue and the public interest.
    In applying the principles of a FOIA analysis to requests for this 
type of information in the possession of States and other service 
providers, DOE, is, by this rule, requiring all States and other 
service providers under the WAP to apply the balancing test of 
Exemption (b)(6) to WAP related records in their possession, custody, 
or control. DOE is extending its expertise in carrying out Exemption 
(b)(6) FOIA analyses and States and service providers are encouraged to 
contact DOE's Office of the Assistant General Counsel for General Law, 
(202) 586-1522, for assistance in applying the balancing test to 
requests for information.

III. Request for Comment

    DOE seeks comment on this interim final rule. In addition, DOE 
requests public comment as to whether it should consider extending any 
other aspects of the FOIA to information collected and maintained by 
States and their subawardees in their administration of the WAP.

IV. Procedural Requirements

A. Executive Order 12866

    Today's regulatory action is a ``significant regulatory action'' 
under section 3(f) 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 (OIRA) of the Office of Management 
and Budget (OMB).

B. Administrative Procedure Act

    The Department of Energy finds good cause to waive the requirement 
to provide prior notice and an opportunity for public comment on these 
regulations pursuant to 5 U.S.C. 533(b)(B), and the 30-day delay in 
effect date pursuant to 5 U.S.C. 553(d). Notice and comment procedures 
on this rule are impracticable and contrary to the public interest. DOE 
is aware of at least one currently pending instance of a request 
seeking personal information of WAP participants in the possession of a 
State. Participation in WAP is limited to low-income individuals. DOE 
is of the opinion that if such information is released, these families 
would likely be subjected to harassment, discrimination, embarrassment, 
predatory lending, and other forms of economic and social harm. 
Disclosure of this information would be comparable to releasing a 
person's status as a food-stamp or welfare recipient--information that 
the Federal government keeps strictly confidential.
    DOE is also of the opinion that release of information such as the 
names, private income and address information of WAP participants will 
have a serious chilling effect on an individual's willingness to 
participate in the WAP, which would frustrate the program's purpose. 
Providing prior notice and an opportunity for public comment on this 
rule may result in the release of the information in the possession of 
the State thereby resulting in the very harm that DOE seeks to avoid.
    There is good cause to waive the required 30-day delay in effect 
for these same reasons. Therefore, these regulations are effective 
March 11, 2010 through December 6, 2010.
    However, while not required, DOE is interested in receiving public 
comment on this rulemaking after its effective date. As such, this rule 
is being published on an interim final basis.
    DOE intends to issue a final rule in this proceeding prior to the 
expiration of this interim final rule on December 6, 2010, in which it 
will respond to comments received.

C. National Environmental Policy Act

    DOE has determined that this rule falls into a class of actions 
that are categorically excluded from review under the National 
Environmental Policy Act of 1969 (42 U.S.C. 4321 et seq.) and DOE's 
implementing regulations at 10 CFR part 1021. This rule amends an 
existing rule without changing its environmental effect, and, 
therefore, is covered by the Categorical Exclusion A5 found in appendix 
A to subpart D, 10 CFR part 1021. Accordingly, neither an environmental 
assessment nor an environmental impact statement is required.

D. Regulatory Flexibility Act

    The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires 
preparation of an initial regulatory flexibility analysis for any rule 
that must be proposed for public comment, unless the agency certifies 
that the rule will have no 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

[[Page 11421]]

(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 the General Counsel's Web site at http://www.gc.energy.gov. Because 
a notice of proposed rulemaking is not required under the 
Administrative Procedure Act or other applicable law, the Regulatory 
Flexibility Act does not require certification or the conduct of a 
regulatory flexibility analysis for this rule.

E. Paperwork Reduction Act

    This rulemaking imposes no new information or recordkeeping 
requirements. Accordingly, OMB clearance is not required under the 
Paperwork Reduction Act. (44 U.S.C. 3501 et seq.)

F. Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA) (Pub. 
L. 104-4) requires each Federal agency to assess the effects of Federal 
regulatory actions on State, local, and Tribal governments and the 
private sector. For proposed regulatory actions likely to result in a 
rule that may cause expenditures by State, local, and Tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more (adjusted annually for inflation), section 202 of UMRA 
requires a Federal agency to publish estimates of the resulting costs, 
benefits, and other effects on the national economy. (2 U.S.C. 1532(a), 
(b)) The UMRA also requires a Federal agency to develop an effective 
process to permit timely input by elected officers of State, local, and 
Tribal governments on a proposed ``significant intergovernmental 
mandate.'' UMRA also requires an agency plan for giving notice and 
opportunity for timely input to small governments that may be affected 
before establishing a requirement that might significantly or uniquely 
affect them. On March 18, 1997, DOE published a statement of policy on 
its process for intergovernmental consultation under UMRA (62 FR 12820) 
(also available at http://www.gc.doe.gov). Today's interim final rule 
contains neither an intergovernmental mandate nor a mandate that may 
result in the expenditure of $100 million or more in any year, so these 
requirements do not apply.

G. Treasury and General Government Appropriations Act, 1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any rule that may affect family well-being. 
Today's rule would have no impact on the autonomy or integrity of the 
family as an institution. Accordingly, DOE has concluded that it is 
unnecessary to prepare a Family Policymaking Assessment.

H. Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4, 1999) 
imposes certain requirements on agencies formulating and implementing 
policies or regulations that preempt State law or that have Federalism 
implications. The executive order requires agencies to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and to carefully assess 
the necessity for such actions. DOE has examined this interim final 
rule and determined that it would not preempt State law and would have 
no 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. Executive 
Order 13132 requires no further action.

I. 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 
Federal agencies the general duty to adhere to the following 
requirements: (1) Eliminate drafting errors and ambiguity, (2) write 
regulations to minimize litigation, (3) provide a clear legal standard 
for affected conduct rather than a general standard, and (4) promote 
simplification and burden reduction. Regarding the review required by 
section 3(a), section 3(b) of Executive Order 12988 specifically 
requires that Executive agencies make every reasonable effort to ensure 
that the regulation (1) clearly specifies the preemptive effect, if 
any; (2) clearly specifies any effect on existing Federal law or 
regulation; (3) provides a clear legal standard for affected conduct 
while promoting simplification and burden reduction; (4) specifies the 
retroactive effect, if any; (5) adequately defines key terms; and (6) 
addresses other important issues affecting clarity and general 
draftsmanship under any guidelines issued by the Attorney General. 
Section 3(c) of Executive Order 12988 requires Executive agencies to 
review regulations in light of applicable standards in sections 3(a) 
and 3(b) to determine whether they are met or it is unreasonable to 
meet one or more of them. DOE has completed the required review and 
determined that, to the extent permitted by law, this rule meets the 
relevant standards of Executive Order 12988.

J. Treasury and General Government Appropriations Act, 2001

    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 notice under the OMB and DOE guidelines and has concluded that 
it is consistent with applicable policies in those guidelines.

K. Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to OMB 
a Statement of Energy Effects for any proposed significant energy 
action. A ``significant energy action'' is defined as any action by an 
agency that promulgated or is expected to lead to promulgation an 
interim 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 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 is not a significant regulatory action under Executive Order 
12866 or any successor order; would not have a significant adverse 
effect on the supply, distribution, or use of energy; and has not been 
designated by the Administrator of OIRA as a significant

[[Page 11422]]

energy action. Accordingly, DOE has not prepared a Statement of Energy 
Effects.

L. Executive Order 12630

    Pursuant to Executive Order 12630, ``Governmental Actions and 
Interference with Constitutionally Protected Property Rights,'' 53 FR 
8859 (March 15, 1988), DOE has determined that this rule would not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

M. Section 32 of the Federal Energy Administration Act of 1974

    Under section 301 of the Department of Energy Organization Act 
(Pub. L. 95-91), the Department of Energy must comply with section 32 
of the Federal Energy Administration Act of 1974 (Pub. L. 93-275), as 
amended by the Federal Energy Administration Authorization Act of 1977 
(Pub. L. 95-70). (15 U.S.C. 788) Section 32 provides that where a 
proposed rule authorizes or requires use of commercial standards, the 
notice of proposed rulemaking must inform the public of the use and 
background of such standards. In addition, section 32(c) requires DOE 
to consult with the Department of Justice and the Federal Trade 
Commission concerning the impact of the commercial or industry 
standards on competition. This interim final rule does not authorize or 
require the use of any commercial standards. Therefore, no consultation 
with either DOJ or FTC is required.

N. Congressional Notification

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of today's rule before its effective date. The report will 
state that it has been determined that the rule is not a ``major rule'' 
as defined by 5 U.S.C. 804(2).

V. Approval of the Office of the Secretary

    The Secretary of Energy has approved publication of this interim 
final rule.

List of Subjects in 10 CFR Part 440

    Administrative practice and procedure, Aged, Energy conservation, 
Grant programs--energy, Grant programs--housing and community 
development, Housing standards--Indians, Individuals with disabilities, 
Reporting and recordkeeping requirements, Weatherization.

    Issued in Washington, DC, on February 4, 2010.
Cathy Zoi,
Assistant Secretary, Energy Efficiency and Renewable Energy.

0
For the reasons stated in the preamble, DOE is amending Part 440 of 
chapter II of title 10, Code of Federal Regulations, as set forth 
below:

PART 440--WEATHERIZATION ASSISTANCE FOR LOW-INCOME PERSONS

0
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.


0
2. Section 440.2 is amended by adding a new paragraph (e) to read as 
follows:


Sec.  440.2  Administration of grants.

* * * * *
    (e)(1) States, Tribes and their subawardees, including, but not 
limited to subrecipients, subgrantees, contractors and subcontractors 
that participate in the program established under this Part are 
required to treat all requests for information concerning applicants 
and recipients of WAP funds in a manner consistent with the Federal 
government's treatment of information requested under the Freedom of 
Information Act (FOIA), 5 U.S.C. 552, including the privacy protections 
contained in Exemption (b)(6) of the FOIA, 5 U.S.C. 552(b)(6). Under 5 
U.S.C. 552(b)(6), information relating to an individual's eligibility 
application or the individual's participation in the program, such as 
name, address, or income information, are generally exempt from 
disclosure.
    (2) A balancing test must be used in applying Exemption (b)(6) in 
order to determine:
    (i) Whether a significant privacy interest would be invaded;
    (ii) Whether the release of the information would further the 
public interest by shedding light on the operations or activities of 
the Government; and
    (iii) Whether in balancing the privacy interests against the public 
interest, disclosure would constitute a clearly unwarranted invasion of 
privacy.
    (3) A request for personal information including but not limited to 
the names, addresses, or income information of WAP applicants or 
recipients would require the State or other service provider to balance 
a clearly defined public interest in obtaining this information against 
the individuals' legitimate expectation of privacy.
    (4) Given a legitimate, articulated public interest in the 
disclosure, States and other service providers may release information 
regarding recipients in the aggregate that does not identify specific 
individuals. However, a State or service provider must apply an FOIA 
Exemption (b)(6) balancing test to any request for information that can 
not be satisfied by such less-intrusive methods.

[FR Doc. 2010-5195 Filed 3-10-10; 8:45 am]
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