[Federal Register Volume 59, Number 173 (Thursday, September 8, 1994)]
[Unknown Section]
[Page 0]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-22159]


[[Page Unknown]]

[Federal Register: September 8, 1994]


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Part IV





Department of Energy





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10 CFR Part 1008



Privacy Act of 1974; Implementation and System or Records; Proposed 
Rule and Notice
DEPARTMENT OF ENERGY

10 CFR Part 1008

 

Records Maintained on Individuals (Privacy Act)

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Energy (DOE) proposes to amend its Privacy 
Act regulations by adding two systems of records to the list of systems 
exempted from certain subsections of the Act. Exemption from certain 
subsections is needed to enable the Office of Counterintelligence to 
perform its duties and responsibilities. These include detering and 
neutralizing foreign industrial and intelligence activities in the 
United States that are directed at or involving the DOE, conducting 
administrative counterintelligence investigations, participating in law 
enforcement counterintelligence investigations with the Federal Bureau 
of Investigation (FBI) and other Federal agencies, performing analyses 
and producing intelligence on counterintelligence matters, and briefing 
and debriefing individuals regarding DOE foreign contacts and travel. 
These duties and responsibilities are carried out pursuant to Executive 
Order 12333, the Department of Energy Procedures for Intelligence 
Activities, and DOE Order 5670.3, ``Counterintelligence Program.''

DATES: Written comments should be made on or before October 11, 1994.

ADDRESSES: Written comments should be directed to: Denise B. Diggin, 
Chief, Freedom of Information and Privacy Acts Branch, U.S. Department 
of Energy, HR-831, 1000 Independence Avenue, SW, Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT: Department of Energy, Denise B. Diggin 
(Privacy Act Officer), (202) 586-6020, Charles Washington (Program 
Officer), (202) 586-5333, or Abel Lopez (Principal Attorney-Advisor), 
(202) 586-8618.

SUPPLEMENTARY INFORMATION:

I. Background
II. Analysis
III. Procedural Requirements
    A. Review Under Executive Order 12866
    B. Review Under Executive Order 12778
    C. Review Under the Regulatory Flexibility Act
    D. Review Under the Paperwork Reduction Act
    E. Review Under Executive Order 12612
    F. National Environmental Policy Act
IV. Public Comments

I. Background

    Pursuant to the Privacy Act of 1974 (as amended) (5 U.S.C. 552a (j) 
and (k)), the Secretary of Energy is authorized to promulgate rules to 
exempt any system of records within the agency from certain subsections 
of the Act. Accordingly, two new systems of records are added to the 
list of systems exempted from certain subsections of the Act.
    The purpose of these rules is to amend the DOE's Privacy Act 
regulations to enable the Office of Counterintelligence to carry out 
its administrative, analytical, and law enforcement duties and 
responsibilities.

II. Analysis

    DOE proposes to exempt two systems of records from certain 
subsections of the Privacy Act (5 U.S.C. 552a). The first system of 
records, Counterintelligence Administrative and Analytical Records and 
Reports (DOE-81), will be exempt from certain Privacy Act provisions 
pursuant to subsections (k) (1), (2), and (5). The second system of 
records, Counterintelligence Investigative Records (DOE-84), shall be 
exempt from certain provisions pursuant to subsections (j)(2), (k) (1), 
(2), and (5), to the extent that information within the systems meets 
the requirements of those subsections of the Act.
    DOE-81 will be exempted from subsections (c) (3) and (4), (d), 
(e)(1), (e)(4) (G) and (H), and (f) of 5 U.S.C. 552a, to the extent the 
information in this system of records is exempt pursuant to 5 U.S.C. 
552a(k) (1), (2), or (5).
    DOE-84 will be exempted from subsections (c) (3) and (4), (d), (e) 
(1), (2), and (3), (e)(4) (G) and (H), (e)(8), (f) and (g) of 5 U.S.C. 
552a. To the extent the information in DOE-84 is exempt pursuant to 5 
U.S.C. 552a(k) (1), (2), and (5), this system has been further exempted 
from subsections (c) (3) and (4), (d), (e)(1), (e)(4)(G) and (H), and 
(f) of 5 U.S.C. 552a.

Administrative and Analytical Records and Reports (DOE-81) Exemptions

Subsection (k)(1) Exemption

    Under subsection (k)(1) of the Privacy Act, records may be exempted 
which are ``specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense 
or foreign policy and are in fact properly classified pursuant to such 
Executive Order,'' 5 U.S.C. 552(b)(1)(A). To the extent that records in 
this system are classified pursuant to the Executive Order, they may 
not be disclosed. Therefore, this exemption will apply to all such 
information.

Subsection (k)(2) Exemption

    Subsection (k)(2) permits the exemption of investigatory material 
compiled for law enforcement purposes, other than material within the 
scope of subsection (j)(2) of this section: Provided, however, that if 
any individual is denied any right, privilege, or benefit to which he 
would otherwise be entitled by Federal law, or for which he would 
otherwise be eligible, as a result of the maintenance of such material, 
such material shall be provided to such individual, except to the 
extent that the disclosure of such material would reveal the identity 
of a source who furnished information to the Government under an 
express promise that the identity of the source would be held in 
confidence, or, prior to Septemeber 27, 1975, under an implied promise 
that the identity of the source would be held in confidence.

Subsections Exempt Pursuant to (k)(2)

    (1) 5 U.S.C. 552a(c)(3) requires that upon request, an agency must 
give an individual named in a record an accounting which reflects the 
disclosure of the record to other persons or agencies. This accounting 
must state the date, nature, and purpose of each disclosure of the 
record and the name and address of the recipient. The application of 
this provision would alert subjects of an administrative inquiry or 
investigation to the existence of the investigation or that such 
persons are subjects of that investigation. Since release of such 
information to subjects of an inquiry or investigation would provide 
the subjects with significant information concerning the nature of the 
inquiry or investigation, it could result in the altering or 
destruction of documentary evidence, improper influencing of witnesses, 
and other activities that could impede or compromise an investigation.
    (2) 5 U.S.C. 552a(d), (e)(4) (G) and (H), and (f) relate to the 
following: An individual's right to be notified of the existence of 
records pertaining to such individual; requirements for identifying an 
individual who requests access to records; and agency procedures 
relating to access to records and the content of information contained 
in such records. This system is exempt from the foregoing provisions 
for the following reasons: To notify an individual at the individual's 
request of the existence of records in an investigative file pertaining 
to such individual or to grant access to an investigative file could 
(1) Interfere with, undermine, and jeopardize administrative inquiries 
or investigations by revealing such sensitive activities, alerting the 
subject(s) of such inquiries or investigations, and result in the 
concealment or destruction of documentary evidence; (2) reveal the 
identity of sources who furnished information to the Government under 
an express promise that the identity of the source would be held in 
confidence; and (3) result in adverse conditions for, or harm to, 
individuals involved in such activities.
    (3) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual that is relevant and 
necessary to accomplish a purpose of the agency required by a statute 
or Executive Order. An exemption from the foregoing is needed when:
    a. It is not always possible to detect relevance or necessity of 
specific information in the early stages of an administrative inquiry 
or investigation involving national security matters.
    b. Relevance and necessity are questions of judgment and timing. 
What appears relevant and necessary when collected may ultimately be 
determined to be unnecessary. It is only after the information is 
evaluated that the relevance and necessity of such information can be 
established.
    c. In any administrative inquiry or investigation information may 
be obtained concerning violations of laws other than those within the 
scope of the ongoing inquiry or investigation. In the interest of 
effective law enforcement, such information should be retained for 
dissemination to appropriate law enforcement agencies charged with 
enforcing other segments of criminal or civil law.
    d. In interviewing persons or obtaining information from other 
sources during an administrative inquiry or investigation, information 
may be supplied to the investigator which relates to matters incidental 
to the main purpose of the inquiry or investigation but which also 
relates to matters under the investigative jurisdiction of another 
agency. Such information cannot readily be segregated.

Subsection (k)(5) Exemption

    The (k)(5) exemption is for investigatory material compiled solely 
for the purpose of determining suitability, eligibility or 
qualifications for Federal civilian employment, military service, 
Federal contracts, or access to classified information. In general, 
information subject to this system of records would meet this exemption 
where it is compiled for the purpose of determining or limiting an 
individual's access to sensitive and/or classified information. In 
other cases it may appropriately be compiled for the other enumerated 
purposes.
    The (k)(5) exemption applies only to the extent that disclosure 
would reveal the identity of a source who furnished information under 
an express promise of confidentiality. Where this is the case, the 
(k)(5) exemption is applicable as follows:

Subsections Exempt Pursuant to (k)(5)

    (1) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of 
disclosures of records available to individuals named in the records at 
their request. These accountings must state the date, nature and 
purpose of each disclosure of the record and the name and address of 
the recipient. Release of such information to subjects of an 
administrative inquiry or investigation could provide the subjects with 
significant information concerning the nature of the investigation, 
including the identity of sources expressly promised confidentiality. 
To the extent that such an accounting would lead directly or indirectly 
to the disclosure of the identity of a source as described above, the 
(k)(5) exemption is applicable.
    (2) 5 U.S.C. 552(d),(e)(4) (G) and (H), and (f) relate to the 
following: An individual's right to be notified of the existence of 
records pertaining to such individual; requirements for identifying an 
individual who requests access to records; and the agency procedures 
relating to access to records and the content of information contained 
in such records. To the extent that application of these provisions 
would result in the disclosure of the identity of a source expressly 
promised confidentiality, this system is exempt from the foregoing 
provisions. To notify an individual at the individual's request of the 
existence of records in an investigative file pertaining to such 
individual or to grant access to an investigative file could disclose 
the identity of confidential sources and could reveal confidential 
information supplied by those sources.
    (3) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual that is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
Executive Order. Information may be compiled at different stages of an 
administrative inquiry or investigation for different purposes. 
Information may be compiled during the course of an inquiry or 
investigation that has a bearing upon one or more of the categories 
specified in 5 U.S.C. 552a(k)(5). Any information compiled solely for 
one of those purposes--e.g., determining access to sensitive and/or 
classified information--is properly subject to the (k)(5) exemption 
when it reveals confidential sources and/or confidential information. 
Moreover, an exemption from 5 U.S.C. 552a(e)(1) is appropriate to the 
extent (k)(5) is applicable because:
    a. It is not always possible to detect relevance or necessity of 
specific information in the early stages of an inquiry or 
investigation.
    b. Relevance and necessity are questions of judgment and timing. 
What appears relevant and necessary when collected may ultimately be 
determined to be unnecessary. It is only after the information is 
evaluated that the relevance and necessity of such information can be 
established.
    c. In any administrative inquiry or investigation information may 
be obtained concerning violations of laws other than those within the 
scope of the inquiry or investigation. This information should be 
retained for dissemination to appropriate law enforcement agencies.
    d. In interviewing persons, or obtaining other information during 
an inquiry or investigation, information may be supplied to the 
investigator which relates to matters incidental to the main purpose of 
the investigation, but which may also relate to matters under the 
investigative jurisdiction of another agency. Such information cannot 
readily be segregated.

Law Enforcement Investigative Records (DOE-84) Exemptions

    The detailed reasons for DOE 84 exemptions under 5 U.S.C. 552a 
(j)(2), (k) (1), (2) and (5) are as follows:

General Exemption, Subsection (j)(2)

    This system covers records developed by the Office of 
Counterintelligence (OCI) or received by the OCI from other law 
enforcement agencies in the course of an investigation in conjunction 
with the FBI or other authorized law enforcement agency. The exemptions 
are applicable to the extent the information in the records is subject 
to the (j)(2) exemption of the Privacy Act, 5 U.S.C. 552a(j)(2).

Subsections Exempt Pursuant to (j)(2)

    (1) 5 U.S.C. 552a(c)(3) requires that upon request, an agency must 
give an individual named in a record an accounting which reflects the 
disclosure of the record to other persons or agencies. This accounting 
must state the date, nature, and purpose of each disclosure of the 
record and the name and address of the recipient. The application of 
this provision would alert subjects of an investigation to the 
existence of the investigation or that such persons are subjects of 
that investigation. Since release of such information to subjects of an 
investigation would provide the subjects with significant information 
concerning the nature of the investigation, it could result in the 
alteration or destruction of documentary evidence, improper influencing 
of witnesses, and other activities that could impede or compromise the 
investigation.
    (2) 5 U.S.C. 552a(c)(4), (d), e(4) (G) and (H), (f) and (g) relate 
to the following: An individual's right to be notified of the existence 
of records pertaining to such individual; requirements for identifying 
an individual who requests access to records; agency procedures 
relating to access to records and the content of information contained 
in such records; and that such persons are subjects of that 
investigation. This system is exempt from the foregoing provisions for 
the following reasons: To notify an individual at the individual's 
request of the existence of records in an investigative file pertaining 
to such individual or to grant access to an investigative file could 
(1) Interfere with, undermine, and jeopardize administrative inquiries 
or investigations by revealing such sensitive activities, alerting the 
subject(s) of such inquiries or investigations, and result in the 
concealment or destruction of documentary evidence; (2) reveal the 
identity of sources who furnished information to the Government under 
an express promise that the identity of the source would be held in 
confidence; and (3) result in adverse conditions for, or harm to, 
individuals involved in such activities.
    (3) 5 U.S.C. 552a(d), (e)(4) (G) and (H), and (f) relate to the 
following: An individual's right to be notified of the existence of 
records pertaining to such individual; requirements for identifying an 
individual who requests access to records; and agency procedures 
relating to access to records and the content of information contained 
in such records. This system is exempt from the foregoing provisions 
for the following reasons: To notify an individual at the individual's 
request of the existence of records in an investigative file pertaining 
to such individual or to grant access to an investigative file could 
(1) Interfere with, undermine, and jeopardize administrative inquiries 
or investigations by revealing such sensitive activities, alerting the 
subject(s) of such inquiries or investigations, and result in the 
concealment or destruction of documentary evidence; (2) reveal the 
identity of sources who furnished information to the Government under 
an express promise that the identity of the source would be held in 
confidence; and (3) result in adverse conditions for, or harm to, 
individuals involved in such activities through retribution.
    (4) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual that is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
Executive Order. An exemption from the foregoing is needed because:
    a. It is not possible to detect relevance or necessity of specific 
information in the early stages of an investigation involving national 
security matters.
    b. Relevance and necessity are questions of judgment and timing. 
What appears relevant and necessary when collected may ultimately be 
determined to be unnecessary. It is only after the information is 
evaluated that the relevance and necessity of such information can be 
established.
    c. In any investigation the Office of Counterintelligence may 
obtain information concerning violations of laws other than those 
within the scope of its jurisdiction. In the interest of effective law 
enforcement, the Office of Counterintelligence should retain this 
information as it may aid in establishing patterns of criminal activity 
and provide leads for those law enforcement agencies charged with 
enforcing other segments of criminal or civil law.
    d. In interviewing persons or obtaining other forms of evidence 
during an investigation, information may be supplied to the 
investigator which relates to matters incidental to the main purpose of 
the investigation but which also relates to matters under the 
investigative jurisdiction of another agency. Such information cannot 
readily be segregated.
    (5) 5 U.S.C. 552a(e)(2) requires that agencies collect information 
to the greatest extent practicable directly from the subject individual 
when the information may result in adverse determinations about an 
individual's rights, benefits, and privileges under Federal programs. 
The subsection (j)(2) general exemption for criminal law enforcement 
information permits further exemption from this requirement precisely 
because it is an inappropriate requirement for criminal investigations. 
Clearly, to limit the source of information in a criminal investigation 
to the subject of the investigation would hamper and compromise the 
investigation.
    (6) 5 U.S.C. 552a(e)(3) requires that the collecting agency advise 
each individual from whom it collects information of the authority for 
collecting the information, the principal purpose for the solicitation, 
the routine uses and the effect on the individual of not providing the 
information. Again, as the subsection (j)(2) general exemption 
recognizes, this requirement is not appropriate in a criminal 
investigation. The disclosure of such information in an investigation 
could often compromise the investigation; exemption from this 
requirement is therefore appropriate.
    (7) 5 U.S.C. 552a(e)(8) requires that the agency serve notice on 
the individual when any record on such individual is made available 
under compulsory legal process when such process becomes a matter of 
public record. In an ongoing criminal investigation it may be necessary 
to withhold such notice to the subject individual in order to avoid 
compromising the investigation. This further exemption is therefore 
appropriate under the subsection (j)(2) general exemption.
    (8) 5 U.S.C. 552a(g) provides for civil remedies when an agency 
fails to comply with subsection (d), 5 U.S.C. 552a(d). Inasmuch as this 
system is exempt from subsection (d), exemption from this civil 
remedies subsection is also appropriate.

Specific Exemptions, Subsections (k) (1), (2) and (5)

    Subsection (k)(1), 5 U.S.C. 552a(k)(1), permits an agency head to 
exempt those systems of records which are ``specifically authorized 
under criteria established by an Executive Order to be kept secret in 
the interest of national defense or foreign policy and are in fact 
properly classified pursuant to such Executive Order.'' See 5 U.S.C. 
552(b)(1)(A). Subsection (k)(2), 5 U.S.C. 552a(k)(2), allows the 
exemption of records compiled in the course of an investigation of an 
alleged or suspected violation of laws and regulations. Subsection 
(k)(5), 5 U.S.C. 552a(k)(5), allows the exemption of ``investigatory 
material compiled solely for the purpose of determining suitability, 
eligibility, or qualifications for Federal civilian employment, 
military service, Federal contracts, or access to classified 
information, but only to the extent that disclosure of such material 
would reveal the identity of a source who furnished information to the 
Government under an express promise that the identity of the source 
would be held in confidence, or, prior to the effective date of [the 
section], under an implied promise that the identity of the source 
would be held in confidence.''
    The detailed reasons for the exemptions under 5 U.S.C. 552a(k) (1), 
(2) and (5) are as follows:

Subsection Exemption (k)(1)

    Under subsection (k)(1) of the Privacy Act, records may be exempted 
which are ``specifically authorized under criteria established by an 
Executive Order to be kept secret in the interest of national defense 
or foreign policy and are in fact properly classified pursuant to such 
Executive Order.'' 5 U.S.C. 552(b)(1)(A). To the extent that records in 
this system are so classified, they may not be disclosed. Therefore, 
this exemption will apply to all such information.

Subsection Exemption (k)(2)

    Subsection (k)(2) permits the exemption of investigatory material 
compiled for law enforcement purposes, other than material within the 
scope of subsection (j)(2) of this section: Provided, however, that if 
any individual is denied any right, privilege, or benefit to which he 
would otherwise be entitled by Federal law, or for which he would 
otherwise be eligible, as a result of the maintenance of such material, 
such material shall be provided to such individual, except to the 
extent that the disclosure of such material would reveal the identity 
of a source who furnished information to the Government under an 
express promise that the identity of the source would be held in 
confidence, or, prior to September 27, 1975, under an implied promise 
that the identity of the source would be held in confidence.

Subsections Exempt Pursuant to (k)(2)

    (1) 5 U.S.C. 552a(c)(3) requires that upon request, an agency must 
give an individual named in a record an accounting which reflects the 
disclosure of the record to other persons or agencies. This accounting 
must state the date, nature, and purpose of each disclosure of the 
record and the name and address of the recipient. The application of 
this provision would alert subjects of an investigation to the 
existence of the investigation or that such persons are subjects of 
that investigation. Since release of such information to subjects of an 
investigation would provide the subjects with significant information 
concerning the nature of the investigation, it could result in the 
altering or destruction of documentary evidence, improper influencing 
of witnesses, and other activities that could impede or compromise the 
investigation.
    (2) 5 U.S.C. 552a(d), (e)(4) (G) and (H), and (f) relate to the 
following: An individual's right to be notified of the existence of 
records pertaining to such individual; requirements for identifying an 
individual who requests access to records; and agency procedures 
relating to access to records and the content of information contained 
in such records. This system is exempt from the foregoing provisions 
for the following reasons: To notify an individual at the individual's 
request of the existence of records in an investigative file pertaining 
to such individual or to grant access to an investigative file could 
(1) Interfere with, undermine, and jeopardize administrative inquiries 
or investigations by revealing such sensitive activities, alerting the 
subject(s) of such inquiries or investigations, and result in the 
concealment or destruction of documentary evidence; (2) reveal the 
identity of sources who furnished information to the Government under 
an express promise that the identity of the source would be held in 
confidence; and (3) result in adverse conditions for, or harm to, 
individuals involved in such activities.
    (3) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual that is relevant and 
necessary to accomplish a purpose of the agency required by a statute 
or Executive Order. An exemption from the foregoing is needed because:
    a. It is not always possible to detect relevance or necessity of 
specific information in the early stages of an investigation involving 
national security matters.
    b. Relevance and necessity are questions of judgment and timing. 
What appears relevant and necessary when collected may ultimately be 
determined to be unnecessary. It is only after the information is 
evaluated that the relevance and necessity of such information can be 
established.
    c. In an investigation information may be obtained concerning 
violations of laws other than those within the scope of the ongoing 
investigation. In the interest of effective law enforcement, such 
information should be retained for dissemination to appropriate law 
enforcement agencies charged with enforcing other segments of criminal 
or civil law.
    d. In interviewing persons or obtaining information from other 
sources during an investigation, information may be supplied to the 
investigator which relates to matters incidental to the main purpose of 
the investigation but which also relates to matters under the 
investigative jurisdiction of another agency. Such information cannot 
readily be segregated.

Subsection Exemption (k)(5)

    The (k)(5) exemption is for investigatory material compiled solely 
for the purpose of determining suitability, eligibility, or 
qualifications for Federal civilian employment, military service, 
Federal contracts, or access to classified information. In general, 
information subject to this system of records would meet this exemption 
where it is compiled for the purpose of determining or limiting an 
individual's access to classified information. In other cases it may 
appropriately be compiled for the other enumerated purposes. The (k)(5) 
exemption applies only to the extent that disclosure would reveal the 
identity of a source who furnished information under an express promise 
of confidentiality. Where this is the case, the (k)(5) exemption is 
applicable as follows:

Subsections Exempt Pursuant to (k)(5)

    (1) 5 U.S.C. 552a(c)(3) requires that an agency make accountings of 
disclosures of records available to individuals named in the records at 
their request. These accountings must state the date, nature, and 
purpose of each disclosure of the record and the name and address of 
the recipient. Release of such information to subjects of an 
investigation could provide the subjects with significant information 
concerning the nature of the investigation, including the identity of 
sources expressly promised confidentiality. To the extent that such an 
accounting would lead directly or indirectly to the disclosure of the 
identity of a source as described above, the (k)(5) exemption is 
applicable.
    (2) 5 U.S.C. 552a (c)(4), (d), e(4) (G) and (H), (f) and (g) relate 
to the following: An individual's right to be notified of the existence 
of records pertaining to such individual; requirements for identifying 
an individual who requests access to records; agency procedures 
relating to access to records and the content of information contained 
in such records; and that such persons are subjects of that 
investigation. This system is exempt from the foregoing provisions for 
the following reasons: To notify an individual at the individual's 
request of the existence of records in an investigative file pertaining 
to such individual or to grant access to an investigative file could 
(1) Interfere with, undermine, and jeopardize administrative inquiries 
or investigations by revealing such sensitive activities, alerting the 
subject(s) of such inquiries or investigations, and result in the 
concealment or destruction of documentary evidence; (2) reveal the 
identity of sources who furnished information to the Government under 
an express promise that the identity of the source would be held in 
confidence; and (3) result in adverse conditions for, or harm to, 
individuals involved in such activities.
    (3) 5 U.S.C. 552a(e)(1) requires each agency to maintain in its 
records only such information about an individual that is relevant and 
necessary to accomplish a purpose of the agency required by statute or 
Executive Order. Information may be compiled at different stages of an 
investigation for different purposes. Information may be compiled 
during the course of an investigation that has a bearing upon one or 
more of the categories specified in 5 U.S.C. 552a(k)(5). Any 
information compiled solely for one of those purposes--e.g., 
determining access to sensitive and/or classified information--is 
properly subject to the (k)(5) exemption when it reveals confidential 
sources and/or confidential information. Moreover, an exemption from 5 
U.S.C. 552a(e)(1) is appropriate to the extent (k)(5) is applicable 
because:
    a. It is not always possible to detect relevance or necessity of 
specific information in the early stages of an investigation.
    b. Relevance and necessity are questions of judgment and timing. 
What appears relevant and necessary when collected may ultimately be 
determined to be unnecessary. It is only after the information is 
evaluated that the relevance and necessity of such information can be 
established.
    c. In an investigation information may be obtained concerning 
violations of laws other than those within the scope of the 
investigation. This information should be retained for dissemination to 
appropriate law enforcement agencies.
    d. In interviewing persons, or obtaining other information during 
an investigation, information may be supplied to the investigator which 
relates to matters incidental to the main purpose of the investigation, 
but which may also relate to matters under the investigative 
jurisdiction of another agency. Such information cannot readily be 
segregated.
    See the DOE's Privacy Act Regulations at 10 CFR 1008.12(b). Section 
1008.12(b) applies to information in the system that meets the criteria 
of the (j)(2), (k) (2), (3), and (5) exemptions.

III. Procedural Requirements

A. Review Under Executive Order 12866

    Today's regulatory action has been determined not to be a 
``significant regulatory action'' under Executive Order 12866, 
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993). 
Accordingly, today's action was not subject to review under the 
Executive Order by the Office of Information and Regulatory Affairs.

B. Review Under Executive Order 12778

    Section 2 of Executive Order 12778 instructs each agency to adhere 
to certain requirements in promulgating new regulations and reviewing 
existing regulations. These requirements, set forth in sections 2(a) 
and 2(b), including eliminating drafting errors and needless ambiguity, 
drafting the regulations to minimize litigation, providing clear 
certain legal standards for affected conduct, and promoting 
simplification and burden reduction. Agencies are also instructed to 
make every reasonable effort to ensure that the regulation: specifies 
clearly any preemptive effect, effect on existing Federal law or 
regulation, and retroactive effect; describes any administrative 
proceedings to be available prior to judicial review and any provisions 
for the exhaustion of such administrative proceedings; and defines key 
terms. The DOE certifies that today's proposed rule meets the 
requirements of sections 2(a) and 2(b) of Executive Order 12778.

C. Review Under the Regulatory Flexibility Act

    This rule was reviewed under the Regulatory Flexibility Act of 
1980, Pub. L. 96-354, which requires preparation of a regulatory 
flexibility analysis for any proposed rule which is likely to have a 
significant economic impact on a substantial number of small entities. 
This proposed rule will have no impact on interest rates, tax policies 
or liabilities, the cost of goods or services, or other direct economic 
factors. It will also not have any indirect economic consequences, such 
as changed construction rates. The DOE certifies that this proposed 
rule will not have a significant economic impact on a substantial 
number of small entities and, therefore, no regulatory flexibility 
analysis has been prepared.

D. Review Under the Paperwork Reduction Act

    No new information collection or recordkeeping requirements are 
imposed by this proposed rule. Accordingly, no OMB clearance is 
required under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501).

E. Review Under Executive Order 12612

    Executive Order 12612, entitled ``Federalism,'' 52 FR 41685 
(October 30, 1987), requires that regulations, rules, legislation, and 
any other policy actions be reviewed for any substantial direct effects 
on States, on the relationship between the Federal Government and the 
States, or in the distribution of power and responsibilities among 
various levels of Government. If there are sufficient substantial 
direct effects, then the Executive Order requires preparation of a 
federalism assessment to be used in all decisions involved in 
promulgating and implementing a policy action. This proposed rule will 
not affect States, or the relationship between the Federal Government 
and the States, in any direct way.

F. National Environmental Policy Act

    The DOE has concluded that this proposed rule would not represent a 
major Federal action having significant impact on the human environment 
under the National Environmental Policy Act (NEPA) of 1969 (42 U.S.C. 
4321 et seq.) (1976) or the Council on Environmental Quality 
Regulations (40 CFR parts 1500-1508) and, therefore, does not require 
an environmental assessment pursuant to NEPA.

IV. Public Comments

    Interested persons are invited to participate by submitting data, 
views, or arguments with respect to the proposed amendments to the DOE 
Privacy Act regulations as set forth in this notice. Three copies of 
written comments should be submitted to the address indicated in the 
ADDRESSES section of this notice. All comments received will be 
available for public inspection in the DOE Freedom of Information 
Public Reading Room, Room IE-190, Forrestal Building, 1000 Independence 
Avenue, SW, Washington, DC 20585, between the hours of 9 a.m. and 4 
p.m., Monday through Friday, except Federal holidays. All written 
comments received by the date indicated in the DATES section of this 
notice will be carefully assessed and fully considered prior to 
publication of the proposed amendment as a final rule. Any information 
considered to be confidential must be so identified and submitted in 
writing, one copy only. DOE reserves the right to determine the 
confidential status of the information and to treat it according to 
that determination.
    The Department has concluded that this proposed rule does not 
involve a substantial issue of fact or law and that the proposed rule 
should not have substantial impact on the nation's economy or a large 
number of individuals or business. Therefore, pursuant to Pub. L. 95-
91, the DOE Organization Act, and the Administrative Procedures Act (5 
U.S.C. 553), the Department does not plan to hold a public hearing on 
this proposed rule.

List of Subjects in 10 CFR Part 1008

    Privacy.

    For the reasons set forth in the preamble, part 1008 of title 10 of 
the Code of Federal Regulations is proposed to be amended as set forth 
below.

    Issued in Washington, DC on August 31, 1994.
Archer L. Durham,
Assistant Secretary for Human Resources and Administration.

PART 1008--RECORDS MAINTAINED ON INDIVIDUALS (PRIVACY ACT)

    1. The authority citation continues to read as follows:

    Authority: Department of Energy Organization Act, Pub. L. 95-91, 
Executive Order 12091, 42 FR 46267, Privacy Act of 1974, Pub. L. 93-
579 (5 U.S.C. 552a).

    2. Section 1008.12 is amended by adding paragraphs (a)(2)(ii); 
(b)(1)(ii) (I) and (J); (b)(2)(ii) (K) and (L); and (b)(3)(ii) (M) and 
(N) to read as follows:

Sec. 1008.12  Exemptions.

    (a) * * *

    (2) * * *

    (ii) Law Enforcement Investigative Records (DOE-84). This system of 
records is being exempted pursuant to subsection (j)(2) of the Act to 
enable the Office of Counterintelligence to carry out its duties and 
responsibilities as they pertain to its law enforcement function. The 
system is exempted from subsections provisions for the following 
reasons: notifying an individual at the individual's request of the 
existence of records in an investigative file pertaining to such 
individual, or granting access to an investigative file could interfere 
with investigative and enforcement proceedings and with co-defendants' 
right to a fair trial; disclose the identity of confidential sources 
and reveal confidential information supplied by these sources; and 
disclose investigative techniques and procedures.
    (b) * * *
    (1) * * *
    (ii) * * *

    (I) Administrative and Analytical Records and Reports (DOE-81).
    (J) Law Enforcement Investigative Records (DOE-84).

    (2) * * *
    (ii) * * *

    (K) Administrative and Analytical Records and Reports (DOE-81).
    (L) Law Enforcement Investigative Records (DOE-84).

    (3) * * *
    (ii) * * *

    (M) Administrative and Analytical Records and Reports (DOE-81).
    (N) Law Enforcement Investigative Records (DOE-84).
* * * * *
[FR Doc. 94-22159 Filed 9-7-94; 8:45 am]
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