[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]



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_______________________________________________________________________

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  

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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

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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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