[Federal Register Volume 77, Number 39 (Tuesday, February 28, 2012)]
[Rules and Regulations]
[Pages 11737-11738]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-4643]



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Rules and Regulations
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Federal Register / Vol. 77, No. 39 / Tuesday, February 28, 2012 / 
Rules and Regulations

[[Page 11737]]



DEPARTMENT OF ENERGY

10 CFR Part 440

[Docket No. EEWAP0130]
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: 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 published a final rule on June 7, 2010, 
adopting the interim final rule as final without change. This adoption 
inadvertently caused the sunset date of December 6, 2010, stated in the 
interim final rule to also be adopted as final. DOE is today adopting 
the amendments to 10 CFR part 440 of chapter II of title 10, Code of 
Federal Regulations set forth in the interim final rule without 
adopting the sunset date.

DATES: This rule is effective February 28, 2012.

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, email: 
robert.adams@ee.doe.gov. For legal issues contact Kavita Vaidyanathan, 
U.S. Department of Energy, Office of the General Counsel, Forrestal 
Building, GC-71, 1000 Independence Avenue SW., Washington, DC 20585, 
(202) 586-0669, email: kavita.vaidyanathan@hq.doe.gov.

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, (75 FR 11419), DOE published an interim final 
rule requiring all States and other service providers that participate 
in the 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 FOIA. The 
background and explanation of that interim final rule was set out in 
the March 11 publication. DOE received one comment letter and published 
a final rule on June 7, 2010, (75 FR 32089), adopting the interim final 
rule as final without change because some of the suggestions in the 
comments were already incorporated in the interim final rule and DOE 
declined to adopt the other suggestions.
    The final rule was effective on July 7, 2010. However, the adoption 
of the interim final rule as final without change inadvertently caused 
the sunset date of December 6, 2010, stated in the interim final rule 
to also be adopted as final. To correct the inclusion of the interim 
final rule's sunset date in the final rule, DOE is today adopting the 
amendments to 10 CFR part 440 of chapter II of title 10, Code of 
Federal Regulations set forth in the interim final rule without 
adopting the sunset date.

III. Procedural Issues and Regulatory Review

A. Review Under Executive Order 12866

    Today's regulatory action is not a significant regulatory action 
under section 3(f)(1) of Executive Order 12866, ``Regulatory Planning 
and Review'' (58 FR 51735 (Oct. 4, 1993)). Accordingly, today's action 
was not reviewed by the Office of Information and Regulatory Affairs in 
the Office of Management and Budget.

B. Administrative Procedure Act

    DOE finds that providing prior notice and comment on today's final 
rule would be unnecessary. See, 5 U.S.C. 553(b)(3)(B). As noted above, 
today's final rule corrects an inadvertent application of a sunset date 
to a final rule that was previously subject to notice and comment. DOE 
received and responded to the one comment received as a result of that 
public notice and comment opportunity. Today's final rule adopts the 
regulatory language as finalized in the prior final rule.

C. 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).

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 17, 2012.
Henry C. Kelly,
Acting Assistant Secretary, Energy Efficiency and Renewable Energy.

    For the reasons stated in the preamble, DOE is amending 10 CFR part 
440 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

[[Page 11738]]

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. 2012-4643 Filed 2-27-12; 8:45 am]
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