[Federal Register Volume 62, Number 19 (Wednesday, January 29, 1997)]
[Proposed Rules]
[Pages 4404-4407]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-2178]
[[Page 4403]]
_______________________________________________________________________
Part V
Department of Energy
_______________________________________________________________________
10 CFR Part 1008
Privacy Act of 1974; Implementation; Proposed Rule and System of
Records; Notice
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 /
Proposed Rules
[[Page 4404]]
DEPARTMENT OF ENERGY
10 CFR PART 1008
RIN 1901-AA62
Privacy Act of 1974; Records Maintained on Individuals
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 a system 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 Inspector General (OIG)
to perform its duties and responsibilities.
The new system of records will be entitled ``Allegation-Based
Inspections Files of the Office of Inspector General,'' and will allow
the Office of Inspector General to perform its functions mandated by
statute, regulation or executive order. The system will maintain
documents collected in the process of conducting inspections. An Office
of Inspector General inspection is an examination of DOE or DOE
contractor organizations, programs, projects, functions, or activities.
The proposed system of records will cover only the files of inspections
predicated on allegations or complaints and which identify subjects and
sources of information by name. Inspections performed relate to
sensitive allegations of wrongdoing received concerning certain
individuals, including agency and DOE contractor employees, or other
persons or entities with some relationship to the agency. Allegations
include, but are not limited to, abuse of authority; misuse of
government time, property, or position; conflicts of interest, or other
non-criminal violations of law, rules, or regulations.
DATES: Written comments should be submitted on or before March 31,
1997.
ADDRESS: Written comments should be directed to: GayLa D. Sessoms,
Director, Freedom of Information Act and Privacy Act Division, U.S.
Department of Energy, HR-78, 1000 Independence Avenue, SW., Washington,
DC 20585.
FOR FURTHER INFORMATION CONTACT: GayLa D. Sessoms, Director, Freedom of
Information Act and Privacy Act Division, U.S. Department of Energy,
HR-78, 1000 Independence Avenue, SW, Washington, DC 20585, (202) 586-
5955; or Jacqueline M. Becker, Office of Inspector General, U.S.
Department of Energy, IG-1, 1000 Independence Avenue, SW, Washington,
DC 20585, (202) 586-4393; or Abel Lopez, Office of General Counsel,
U.S. Department of Energy, GC-80, 1000 Independence Avenue, SW,
Washington, DC 20585, (202) 586-8618.
SUPPLEMENTARY INFORMATION:
I. Background
II. Analysis
III. Procedural Requirements
A. Regulatory Review
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. Review Under National Environmental Policy Act
IV. Public Comments
I. Background
The Privacy Act of 1974, as amended, at 5 U.S.C. 552a(k) provides
that the head of an agency may exempt an agency system of records from
certain provisions of the Act. Accordingly, this new system of records
is added to the list of systems exempted by the Department of Energy
from certain subsections of the Act.
The purpose of this rule is to amend the Department of Energy's
Privacy Act regulations to enable the Office of Inspector General to
carry out its duties and responsibilities as mandated by the Inspector
General Act. The Inspector General is mandated to promote economy,
effectiveness, and efficiency within the agency and to prevent and
detect fraud, waste and abuse in agency programs and operations.
The Office of Inspections in the Office of Inspector General
compiles various files that are collected and maintained to assist in
the performance of the functions of the Office of Inspector General.
The Office of Inspections performs various inspections and analyses as
required by the Office of Inspector General. An inspection by the
Office of Inspector General is an examination of a DOE or DOE
contractor organization, program, project, function, or activity. The
proposed system of records will cover only the files of inspections
predicated on allegations or complaints and which identify subjects and
sources of information by name. Inspections performed relate to
sensitive allegations of wrongdoing received concerning certain
individuals, including agency employees, or other persons or entities
with some relationship to the agency and DOE contractor. Allegations
include, but are not limited to, abuse of authority; misuse of
government time, property, or position; conflicts of interest; or other
non-criminal violations of law, rules, or regulations.
II. Analysis
The Department of Energy proposes to exempt this system of records
from certain provisions of the Privacy Act pursuant to subsections
(k)(1) and (k)(2) of the Act. The system of records is exempt from the
following subsections:
System Exempted From Certain Provisions of the Act
Under subsections (k)(1) and (k)(2) of the Privacy Act, this system
of records is exempt from the following subsections: 5 U.S.C.
552a(c)(3), 5 U.S.C. 552a(d), 5 U.S.C. 552a(e)(1), 5 U.S.C. 552a(e)(4)
(G) and (H), 5 U.S.C. 552a(f).
Exemption (k)(1) provides that the head of an agency may exempt an
agency system of records from certain provisions of the Privacy Act if
the system of records is subject to section 552(b)(1) of the Freedom of
Information Act, 5 U.S.C. 552. That section of the Freedom of
Information Act protects from disclosure national security information
classified under an Executive Order. The proposed system of records
will contain properly classified national security information in the
OIG's Allegation-Based Inspections files.
The detailed reasons for exemptions under 5 U.S.C. 552a(k)(1)
follow:
(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 Department of
Energy has programs involving classified material which may be the
subject of an Office of Inspections review. The application of these
provisions to reviews involving properly classified material could
disclose classified information. If this classified material were
disclosed, the national security might be compromised.
An example of an issue involving classified security information
would be a review of the Department's maintenance or transportation of
special nuclear material. Such information could be sought by terrorist
groups. Another example would be Departmental work with intelligence
information obtained from other Federal agencies.
(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
[[Page 4405]]
an individual who requests access to or amendment of records; and
agency procedures relating to access to and amendment of records and
the content of information contained in such records. If these
provisions were applied to classified material in the Allegation-Based
Inspections Files, this could (1) interfere with inspections or
inquiries undertaken in connection with national security; (2) disclose
the identity of sources kept secret to protect the national security;
(3) reveal classified information supplied by these sources to protect
the national security; or (4) generally violate the secrecy of the
classification.
The Office of Inspections also conducts counterintelligence
administrative inquiries and inspections. These reviews are conducted
to uncover clandestine relationships, contacts with foreign
intelligence services, and other hostile activities. Such actions could
be directed against Departmental facilities, property, personnel,
programs, and contractors and contractor employees. These hostile
activities may be conducted by foreign powers, foreign organizations or
their agents. In conducting these reviews, the Office of Inspections
collects classified information that if disclosed could compromise
Federal counterintelligence activities.
The Office of Inspections may compile information pertaining to
foreign energy matters. Disclosure of this information could identify
sensitive sources and methods used by the national intelligence
community. The Office of Inspections also may compile information
regarding classified technology being developed by the Department or
other agencies. Disclosure of this information could identify sensitive
Departmental projects or operations that could be targets of foreign
intelligence service operations.
(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. The OIG does not create the material it collects and
thus has no control over the content of that material.
There are additional reasons why application of this provision
could impair inspections and interfere with the statutory
responsibilities of the OIG. It is not always possible to detect the
relevance or necessity of specific information in the early stages of
an inspection or inquiry. This applies when an inspection or inquiry
uses properly classified information. Relevance and necessity are
questions of judgment and timing, and it is only after the information
is evaluated that the relevancy and necessity of such information can
be established. Furthermore, information outside the scope of the OIG's
jurisdiction may be helpful in establishing patterns of activities or
problems or in developing information that should be referred to other
entities. Such information cannot always readily be segregated.
The detailed reasons for the exemptions under 5 U.S.C. 552a (k)(2)
follow:
(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. To apply this
provision would alert those who may be the subjects of an inspection or
inquiry pertaining to an allegation or complaint to the existence of
the inspection or inquiry, or that they are the subjects of an
inspection or inquiry. Release of information to subjects of such an
inspection or inquiry could provide the subject with significant
information concerning the nature of the inspection or inquiry and
could result in the altering or destruction of documentary evidence,
improper influencing of witnesses, and other activities that could
impede or compromise the inspection or inquiry.
(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 or amendment of records; and agency
procedures relating to access to and amendment of 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 inspection file pertaining to a complaint or allegation about the
individual or to grant access to this type of inspection file could (1)
interfere with inspections proceedings predicated on a complaint or
allegation, (2) constitute an unwarranted invasion of the personal
privacy of others, (3) disclose the identity of confidential sources
and reveal confidential information supplied by those sources, or (4)
disclose inspection techniques and procedures.
In addition, this system is exempt from paragraph (d)(2) of this
section, because to require the Office of the Inspector General, to
amend information thought to be incorrect, irrelevant or untimely,
because of the nature of the information collected and the essential
length of time it is maintained, would create an impossible
administrative and investigative burden by forcing the agency to
continuously retrograde its investigations attempting to resolve
questions of accuracy.
(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. 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 inspection involving a
complaint or allegation.
b. Relevance and necessity are questions of judgment and timing.
What appears relevant and necessary when collected ultimately may be
deemed unnecessary. It is only after the information is evaluated or
the case is closed that the relevancy and necessity of such information
can be established.
c. In any inspection involving a complaint or allegation, the
Inspector General may obtain information concerning the violation of
laws other than those within the scope of the Inspector General's
jurisdiction. In the interest of effective law enforcement, the
Inspector General should be able to retain this information to aid in
establishing patterns of program violations or criminal activity, and
provide leads for those law enforcement agencies charged with enforcing
criminal or civil law.
d. In conducting an inspection or inquiry involving a complaint or
allegation, information obtained may relate to the main purpose of the
inspection or inquiry and to matters under the jurisdiction of another
agency. Such information is not normally readily segregable.
III. Procedural Requirements
A. Regulatory Review
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.
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B. Review Under 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
Executive agencies the general duty to adhere to the following
requirements: (1) Eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; and (3) provide a clear legal
standard for affected conduct rather than a general standard and
promote simplification and burden reduction. With regard to 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
section 3(a) and section 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,
the proposed regulations meet the relevant standards of Executive Order
12988.
C. Review Under the Regulatory Flexibility Act
This rule was reviewed under the Regulatory Flexibility Act of
1980, Pub. L. 96-354. The Regulatory Flexibility Act requires the
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 rule will have no impact on interest
rates, tax policies or liabilities, the cost of goods or services, or
other direct economic factors. The rule will also not have any indirect
economic consequences such as changed construction rates.
The Department of Energy certifies that the proposed rule will not
have a significant economic impact on a substantial number of small
entities. No regulatory flexibility analysis has been prepared since
there is no significant impact on small entities.
D. Review Under the Paperwork Reduction Act
No new information collection or record keeping requirements are
imposed by this proposed rule. As a result, no OMB clearance is
required under the Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et
seq.).
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 new policy action. The proposed rule
will not affect States, or the relationship between the Federal
Government and the States, in any direct way.
F. Review Under the National Environmental Policy Act
The proposed rulemaking would amend the Department's regulations
that implement the Privacy Act at 10 CFR part 1008, ``Records
Maintained on Individuals (Privacy Act),'' by adding a new system of
records to the list of systems exempted from certain subsections of the
Privacy Act. Under the new system of records, the Department would
maintain documents collected in inspections conducted by the Office of
Inspector General. Implementation of the proposed rule would only
affect the manner in which certain files are maintained and made
accessible to the public, and would not result in environmental
impacts. The Department has therefore determined that the proposed rule
is covered under the Categorical Exclusion found at paragraph A.5 of
appendix A to subpart D, 10 CFR part 1021, which applies to the
amendment or interpretation of existing regulation that does not change
the environmental effect of the rule being amended. Accordingly,
neither an environmental assessment nor an environmental impact
statement is required.
IV. Public Comments
Interested persons are invited to participate by submitting data,
views, or comments with respect to the proposed amendments to the
Privacy Act regulations of the Department of Energy as set forth in
this notice. Those interested in participating should submit three
copies of written comments to the individual whose name is listed in
the ``ADDRESS'' section of this notice. The regulatory action does not
involve any significant issues of fact or law. 43 U.S.C. 7191(c).
Therefore, DOE is conducting this proceeding under 5 U.S.C. 553 and has
decided that there is no need to schedule a public hearing. All
comments received will be available for public inspection in the
Department of Energy's Freedom of Information Public Reading Room, 1E-
190, the 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
listed in the DATES section of this notice will be carefully assessed
and fully considered before the proposed amendment is published as a
final rule. Any information considered to be confidential must be so
identified and submitted in writing. Please submit only one copy of
such information. The Department of Energy reserves the right to
determine the confidential status of information identified as
confidential.
The Department has concluded that this proposed rule does not
involve a substantial issue of fact or law and that the rule should not
have substantial impact on the nation's economy or on a large number of
individuals or businesses. Therefore, pursuant to the Department of
Energy Organization Act, Pub.L. 95-91, the Department of Energy does
not plan to hold a public hearing on this proposed rule.
List of Subjects in 10 CFR Part 1008
Privacy.
Issued in Washington, DC on December 31, 1996.
Archer L. Durham,
Assistant Secretary for Human Resources and Administration.
For the reasons set forth in the preamble, 10 CFR part 1008 is
proposed to be amended as set forth below:
PART 1008--RECORDS MAINTAINED ON INDIVIDUALS (PRIVACY ACT)
1. The authority citation continues to read as follows:
Authority: 42 U.S.C. 7101, et. seq., Executive Order 12091, (42
FR 46267), 5 U.S.C. 552a.
2. Section 1008.12 is amended by adding paragraphs (b)(2)(ii)(M)
and (b)(3)(ii)(O) to read as follows:
Sec. 1008.12 Exemptions.
* * * * *
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(b) * * *
(2) * * *
(ii) * * *
(M) Allegation-Based Inspections Files of the Office of Inspector
General (DOE-83).
(3) * * *
(ii) * * *
(O) Allegation-Based Inspections Files of the Office of Inspector
General (DOE-83).
* * * * *
[FR Doc. 97-2178 Filed 1-28-97; 8:45 am]
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