2010-13594. 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:

Final rule.

SUMMARY:

The U.S. Department of Energy (DOE) published an interim final rule on March 11, 2010, requiring that all States and other service providers that participate in the Weatherization Assistance Program (WAP) 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). DOE is today adopting the interim final rule as final without change.

DATES:

This rule is effective July 7, 2010.

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, [phone], e-mail: [e-mail].

Bryan Miller, Esq., U.S. Department of Energy, Office of General Counsel, 1000 Independence Avenue, SW., Washington, DC 20585, [phone].

SUPPLEMENTARY INFORMATION:

I. Background and Authority

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

II. Discussion

On March 11, 2010, DOE published an interim final rule requiring all States and other service providers that participate in the 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), 75 FR 11419. The background and explanation of the interim final rule was set out in that March 11 publication. The comment period for that interim final rule closed on April 12, 2010. DOE received one comment letter, the substance of which is set forth, with responses, below:

Comment: Rule 10 CFR 440.2(e) should state that participant name and address information has a substantial privacy interest under FOIA Exemption (b)(6) because disclosure of such information would reveal the income status of the participant.

Response: The interim final rule includes the following language in its amendment to 10 CFR 440.2: “Under 5 U.S.C. 552(b)(6) [the codification of FOIA Exemption (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.” 75 FR 11422. DOE believes that this existing language is sufficient to satisfy the suggestion in this comment.

Comment: Rule 10 CFR 440.2(e) should state that the FOIA (b)(6) balancing test should include the consideration of alternatives to disclosure of identifying information that could address the public interest without compromising the privacy of WAP participants.

Response: The interim final rule states, “[g]iven 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 * * *. 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.” 75 FR 11420. DOE believes that this existing language, and the FOIA (b)(6) language found at 5 U.S.C. 552(b)(6), adequately addresses the suggestion in this comment.

Comment: DOE should include in the final rule examples of actual or hypothetical FOIA requests as guidance to illustrate how DOE would apply the FOIA (b)(6) balancing test.

Response: DOE believes that speculating on the FOIA (b)(6) outcome of a given hypothetical situation would not provide much assistance to WAP providers. The public interest involved and the appropriate balance struck will depend on the facts of any given situation.

Comment: DOE should ask States and other service providers to voluntarily submit the results of FOIA (b)(6) balancing test decisions, so that DOE can maintain and provide access to a repository of those decisions for reference by other WAP providers.

Response: DOE believes that compiling such decisions is unnecessary, creates an additional paperwork burden on WAP providers and the Agency, and might require DOE to establish a Privacy Act System of Records.

Because the suggestions in comments (1) and (2) are already incorporated in the interim final rule, and because DOE declines to adopt the suggestions in comments (3) and (4), DOE is today adopting the interim final rule as final without change.

III. Procedural Issues and Regulatory Review

A. Review Under 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 of the Office of Management and Budget.

B. 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).

IV. Approval of the Office of the Secretary

The Secretary of Energy has approved publication of this 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 May 28, 2010.

Cathy Zoi,

Assistant Secretary, Energy Efficiency and Renewable Energy.

PART 440—WEATHERIZATION ASSISTANCE FOR LOW-INCOME PERSONS

Accordingly, the interim final rule amending 10 CFR part 440 which was published at 75 FR 11419 on March 11, 2010, is adopted as a final rule without change.