[Federal Register Volume 64, Number 131 (Friday, July 9, 1999)]
[Proposed Rules]
[Pages 37081-37082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-17411]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Office Of The Secretary

45 CFR Part 5b


Privacy Act; Implementation

AGENCY: Office of the Secretary, HHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of Health and Human Services proposes to exempt 
a new system of records, 09-25-0213, ``Administration: Investigative 
Records, HHS/NIH/OM/OA/OMA,'' from certain requirements of the Privacy 
Act to protect records compiled in the course of an inquiry and/or 
investigation and to protect the identity of confidential sources who 
furnish information to the Government under an express promise that the 
identity of such source would be held in confidence.

DATES: Comments on the proposed amendment must be received on or before 
August 9, 1999.

ADDRESS: Written comments should be sent to: NIH Privacy Act Officer, 
6011 Executive Boulevard, Room 601, Rockville, MD 20852.
    Comments will be available for public inspection at this address on 
Monday through Friday of each week from 9 am to 3 pm.

FOR FURTHER INFORMATION CONTACT: NIH Privacy Act Officer, 6011 
Executive Boulevard, Room 601, Rockville, MD 20852, 301-496-2832. (This 
is not a toll free number.)

SUPPLEMENTARY INFORMATION: The Office of Management Assessment (OMA) 
assumes the lead responsibility on cases received through the DHHS 
Office of Inspector General (OIG) hotline that are referred to NIH for 
action. OMA serves as NIH's central liaison on matters involving the 
Office of Audit Services, OIG; General Accounting Office; Federal 
Bureau of Investigation; congressional staff members; etc., related to 
management controls and audits. OMA also has overall responsibility for 
all matters related to management controls to prevent fraud, waste, 
abuse, and conflict of interest or the appearance of these, including 
the development and implementation of policy and the Annual Management 
Control Plan and the development of a planned management oversight 
activity that focuses on early identification and prevention of such 
occurrences.
    To perform these responsibilities, OMA compiles and maintains 
administrative and investigative records related to alleged or 
suspected violations of statutes, regulations, and policies governing 
the conduct of Federal employees, recipients of Federal funding, and 
others who transact, or seek to transact business with the NIH.
    These records contain information related to complaints of 
incidents, inquiries and investigative findings, administrative and 
other matters involving complainants, suspects and witnesses, and court 
dispositions.
    The administrative and investigation records are located in the OMA 
and constitute a ``system of records'' as defined by the Privacy Act. 
Concurrent with this notice of proposed rulemaking, the National 
Institutes of Health is publishing a notice for this new system in the 
Federal Register.
    Under the Privacy Act, individuals have a right of access to 
information pertaining to them which is contained in a system of 
records. At the same time, the Act permits certain types of systems to 
be exempt from some of the Privacy Act requirements. Subsection (k)(2) 
allows agency heads to exempt a system of records containing 
investigatory material compiled for enforcement purposes. This 
exemption is qualified in that if the material results in denial of any 
right, privilege, or benefit to an individual to which that individual 
would be entitled by Federal law, the individual must be granted access 
to the material, unless the access would reveal the identity of a 
source who furnished information to the Government under an express 
promise of confidentiality. In addition, paragraph (k)(5) permits an 
agency to exempt material from the individual access, notification, and 
correction and amendment provisions of the Act where investigatory 
material is compiled for the purpose of determining suitability, 
eligibility, or qualification for federal employment or financial 
assistance if release of the material would cause the identity of a 
confidential source to be revealed.
    Because the administrative and investigative records are compiled 
by a distinct component of the agency whose principal function is 
investigations which compile material for law enforcement purposes, the 
specific exemption (k)(2) requirements are met and the exemption is 
justified. Investigations compiled for the purpose of determining 
suitability, eligibility, or qualification for federal employment or 
financial assistance may be undertaken when the investigations result 
from a direct allegation or through suspected violations of statutes, 
regulations and policies uncovered during an administrative management 
control review or audit. Determinations that applicants are not 
suitable, eligible or qualified would justify the need to invoke the 
paragraph (k)(5) exemption.
    The system contains sensitive investigative records. The release of 
these records to the subject of the investigation could have a chilling 
effect on the willingness of informants to provide information freely, 
not only because of fear of retribution, but because they might 
hesitate to provide any information other than that of which they are 
entirely certain. Disclosure could impede ongoing investigations and 
violate the privacy rights of individuals other than the subject of the 
investigation, thereby diminishing the ability of the OMA to conduct a 
thorough and accurate investigation. Disclosure of information from 
these records might also reveal to the subjects of the investigation 
that their actions are being scrutinized, allowing them the opportunity 
to prevent detection of illegal activities. Finally, disclosure of 
information from the records might reveal investigative techniques and 
thereby jeopardize the integrity of the investigation.
    Sources may be reluctant to provide sensitive information unless 
they can be assured that their identities will not be revealed. These 
exemptions are proposed to ensure that: (1) Efforts to obtain accurate 
and objective information will not be hindered; (2) investigative 
records will not be disclosed inappropriately; and (3) identities of 
confidential sources and OMA investigators will be protected. 
Accordingly, the Department proposes to exempt this system under 
paragraphs (k)(2) and (k)(5) of the Privacy Act from the notification, 
access, correction, and amendment provisions of the Privacy Act 
(paragraphs (c)(3), (d)(1)-(4), (e)(1), (e)(4)-(G) and (H) and (f)).

Regulatory Impact Statement

    Executive Order 12866 of September 30, 1993, Regulatory Planning 
and Review, requires the Department to prepare an analysis for any rule 
that meets one of the E. O. 12866 criteria for a significant regulatory 
action; that is, that may--
    Have an annual effect on the economy of $100 million or more or 
adversely affect in a material way the economy, a sector of the 
economy, productivity, competition, jobs, the environment,

[[Page 37082]]

public health or safety, or State, local, or tribal governments or 
communities;
    Create a serious inconsistency or otherwise interfere with an 
action taken or planned by another agency;
    Materially alter the budgetary impact of entitlements, grants, user 
fees, or loan programs or the rights and obligations of recipients 
thereof; or
    Raise novel legal or policy issues arising out of legal mandates, 
the President's priorities, or the principles set forth in E.O. 12866.
    In addition, the Department prepares a regulatory flexibility 
analysis, in accordance with the Regulatory Flexibility Act (5 U.S.C. 
chapter 6), if the rule is expected to have a significant impact on a 
substantial number of small entities.
    Because the amendment affects only NIH OMA investigatory records, a 
small subset of Agency records, we do not believe this proposed rule is 
economically significant nor do we believe that it will have a 
significant impact on a substantial number of small entities. The 
proposed rule is not expected to have any significant impact on OMA 
operations and does not impose any new information collection 
requirements under the Paperwork Reduction Act. In addition, this 
proposed rule is not inconsistent with the actions of any other agency.
    For these same reasons, the Secretary certifies this proposed rule 
will not have a significant economic impact on a substantial number of 
small entities, and that a Regulatory Flexibility Analysis, as defined 
under the Regulatory Flexibility Act, is not required.

List of Subjects in 45 CFR Part 5b

    Privacy.

    Dated: October 13, 1998.
Harold Varmus,
Director, National Institutes of Health.

    Approved: March 11, 1999.
Donna E. Shalala,
Secretary.

    For the reasons set out in the preamble, 45 CFR part 5b is proposed 
to be amended as set forth below:

PART 5b--PRIVACY ACT REGULATIONS

    1. The authority citation for part 5b would continue to read:

    Authority: 5 U.S.C. 301, 5 U.S.C. 552a.

    2. Section 5b.11(b)(2)(vii) would be amended by designating the 
paragraph after the colon as paragraph (b)(2)(vii(A)and republishing it 
and by adding paragraph (b)(2)(vii)(B) to read as follows:


Sec. 5b.11  Exempt systems.

* * * * *
    (b) * * *
    (2) * * *
    (vii) Pursuant to subsections (k)(2) and (k)(5) of the Act:
    (A) Public Health Service Records Related to Investigations of 
Scientific Misconduct, HHS/OASH/ORI.
    (B) Administration: Investigative Records, HHS/NIH/OM/OA/OMA.
* * * * *
[FR Doc. 99-17411 Filed 7-8-99; 8:45 am]
BILLING CODE 4140-01-P