[Federal Register Volume 65, Number 113 (Monday, June 12, 2000)]
[Proposed Rules]
[Pages 36797-36799]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-14784]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 65, No. 113 / Monday, June 12, 2000 / 
Proposed Rules  

[[Page 36797]]



NATIONAL CREDIT UNION ADMINISTRATION

12 CFR Part 792


The Production of Nonpublic Records and Testimony of NCUA 
Employees in Legal Proceedings and the Privacy Act

AGENCY: National Credit Union Administration (NCUA).

ACTION: Proposed rule.

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SUMMARY: NCUA proposes to make minor and technical revisions to its 
regulation implementing the Privacy Act of 1974 (PA). The proposal 
updates the rule to conform to current law governing the method an 
individual may use to establish his or her identity to obtain access to 
protected records and the requirements for the release of medical 
records. The proposed rule changes time limits so that they conform 
more closely to those under the Freedom of Information Act (FOIA) and 
clarifies that the agency maintains four, rather than three, systems of 
records subject to exemptions under the PA. The proposal also updates 
the rule to reflect organizational changes within NCUA and corrects 
cross-references in Subpart C.

DATES: Comments must be received on or before August 11, 2000.

ADDRESSES: Direct comments to Becky Baker, Secretary of the Board. Mail 
or hand-deliver comments to: National Credit Union Administration, 1775 
Duke Street, Alexandria, Virginia 22314-3428. Fax comments to (703) 
518-6319. E-mail comments to [email protected]. Please send comments 
by one method only.

FOR FURTHER INFORMATION CONTACT: Dianne M. Salva, Staff Attorney, 
Division of Operations, Office of General Counsel, at the above address 
or telephone: (703) 518-6540.

SUPPLEMENTARY INFORMATION: The PA, 5 U.S.C. 552a, governs the 
collection, maintenance, use and disclosure of personal information in 
a federal agency's systems of records. NCUA's PA regulation sets forth 
procedures for individuals to follow to obtain access to records about 
themselves in systems of records. It also permits the amendment of any 
inaccurate records and places restrictions on the disclosure of 
information in the records.
    As part of a government-wide initiative, NCUA recently reviewed its 
practices related to privacy and personal information in federal 
records. In its review of the agency systems of records, it identified 
several changes in recordkeeping practices and agency organization. As 
a result of that review, NCUA revised its systems notices to make them 
clearer and simpler and to eliminate redundancies. 65 FR 3486, January 
21, 2000. Now, as a result of its review of the PA regulation, NCUA 
proposes to update the regulation to reflect current law, terminology 
and organizational functions and clarify which of its systems of 
records are subject to PA exemptions.
    The revisions are minor or technical in nature. The changes seek to 
align PA processing more closely with Office and Management and Budget 
(OMB) guidelines and FOIA, 5 U.S.C. 552, practices. Specifically, the 
current regulation calls for an agency response within 10 working days 
of receipt. The PA itself does not set a time limit for agency 
responses. OMB guidelines recommend that agencies acknowledge requests 
within 10 days and, when records will be produced, do so within 30 
days. 40 FR 28957, July 9, 1975. For ease of administration, NCUA 
proposes to adopt processing time limits similar to those imposed by 
the FOIA: 20 working days to respond to initial PA requests, with a 10-
day extension if necessary. The proposal also changes the time period 
for an individual to file an appeal of an adverse decision, currently 
180 days, to the time period commonly used in the FOIA context, which 
is 30 days. The current regulation sets the copying fee at $0.25 per 
page. In connection with the FOIA, NCUA establishes a fee schedule 
adjusted periodically to reflect actual costs. The current rate for 
copies on the NCUA FOIA fee schedule is $0.05 per page. The proposal 
makes the copying fee for PA records the same as the fee on the FOIA 
fee schedule.
    The proposal eliminates the requirement in the current regulation 
that an individual produce a notarized statement affirming his identity 
when he is seeking access to a record about himself and he cannot 
produce documentation to establish his identity, or when he submits a 
request by mail. Current case law requires that an individual need only 
submit an unsworn declaration, subscribed to as true under penalty of 
perjury. Summers v. DOJ, 999 F.2d 570 (D.C. Cir. 1993).
    The current regulation requires that an NCUA official determine 
whether to release to an individual his non-exempt medical information 
in a system of records. The proposal eliminates that provision and 
conforms the rule to current law that holds that an agency may impose 
special procedures to minimize the potential harm to an individual from 
disclosure of sensitive medical records, but ultimately the agency must 
ensure that the individual receives all nonexempt medical records. 
Benavides v. Bureau of Prisons, 995 F.2d 269 (D.C. Cir. 1993).
    The proposal also amends the regulation to reflect the correct 
number of systems of records subject to a PA exemption. The PA requires 
agencies to promulgate a rule to exempt a system of records from its 
access and notice provisions. The following four of NCUA's notices of 
systems of records state that the systems are exempt from certain 
provisions of the PA: NCUA-1, Employee Suitability and Security 
Investigations Containing Adverse Information, NCUA, and; NCUA-8, 
Investigative Reports Involving Any Crime, Suspected Crime or 
Suspicious Activity Against a Credit Union, NCUA, and; NCUA-11, Office 
of Inspector General (OIG) Investigative Records, and; NCUA-13, 
Litigation Case Files, NCUA. However, the current regulation only 
describes three systems subject to exemption from provisions of the PA, 
excluding the Litigation Case Files system. 12 CFR 792.34.
    The Litigation Case Files system, designated NCUA-13, will be 
exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), (I) and 
(f) of the PA. 5 U.S.C. 552a (c)(3), (d),(e)(1), (e)(4)(G), (H), (I) 
and (f). Because the system covers investigatory materials compiled for 
law enforcement purposes, it is eligible for these exemptions under 
subsection (k)(2) of the PA. 5 U.S.C. 552a(k)(2). However, if an 
individual is denied any right, privilege, or benefit to which the 
individual would otherwise

[[Page 36798]]

be entitled by federal law, or for which the individual otherwise would 
be eligible, as a result of the maintenance of such records, the 
records or information will be made available to the individual, 
provided the identity of a confidential source is not disclosed. The 
records in the Litigation Case Files system are used in connection with 
the execution of NCUA's legal and enforcement responsibilities. These 
files may contain unverified, unsolicited statements, sometimes 
received from confidential sources. In addition, investigative reports 
and other internal agency memoranda concerning violations of laws or 
regulations may be included in the files. The NCUA Board believes that 
the disclosure of the existence of such information in the files or the 
nature of information obtained in law enforcement investigations may 
seriously hamper and undermine effective enforcement actions. 
Disclosure might prematurely alert individuals that they are under 
investigation or provide access to evidentiary information. Similarly, 
this system must be exempt from the PA provision requiring agencies to 
make an accounting of disclosures from the system upon request from the 
individual. An accounting would risk revealing to the individual that 
NCUA has forwarded records to the U.S. Department of Justice for 
consideration of criminal proceedings. If such an accounting were 
required, an individual might flee the jurisdiction or otherwise 
interfere with criminal prosecution. During litigation, authorized NCUA 
employees may disclose case file information within the bounds of 
discovery rules.
    Finally, the proposal also corrects certain cross-references in 
Subpart C that are necessary due to earlier revisions of part 792. 63 
FR 14338, March 25, 1998.

Regulatory Procedures

Paperwork Reduction Act

    This regulation, if adopted, will impose no additional information 
collection, reporting or recordkeeping requirements.

Regulatory Flexibility Act

    Pursuant to section 605(b) of the Regulatory Flexibility Act (5 
U.S.C. 605(b)), NCUA certifies that this proposed rule will not have a 
significant economic impact on a substantial number of small entities. 
NCUA expects that this proposal will not: (1) Have significant 
secondary or incidental effects on a substantial number of small 
entities; or (2) create any additional burden on small entities. These 
conclusions are based on the fact that the proposed regulations are 
minor changes intended to simplify and clarify agency recordkeeping and 
disclosure procedures. Accordingly, a regulatory flexibility analysis 
is not required.

Executive Order 13132

    Executive Order 13132 encourages independent regulatory agencies to 
consider the impact of their regulatory actions on state and local 
interests. In adherence to fundamental federalism principles, NCUA, an 
independent regulatory agency as defined in 44 U.S.C. 3502(5), 
voluntarily complies with the executive order. This proposed rule, if 
adopted, is procedural in nature and will not have substantial direct 
effects on the states, on the relationship between the national 
government and the states, or on the distribution of power and 
responsibilities among the various levels of government. NCUA has 
determined that the proposed rule does not constitute a policy that has 
federalism implications for purposes of the executive order.

The Treasury and General Government Appropriations Act, 1999--
Assessment of Federal Regulations and Policies on Families

    The NCUA has determined that this proposed rule will not affect 
family well-being within the meaning of section 654 of the Treasury and 
General Government Appropriations Act, 1999, Pub. L. 105-277, 112 Stat. 
2681 (1998).

Agency Regulatory Goal

    NCUA's goal is to promulgate clear and understandable regulations 
that impose minimal regulatory burden. We request your comments on 
whether the proposed amendment is understandable and minimally 
intrusive if implemented as proposed.

List of Subjects in 12 CFR Part 792

    Administrative practice and procedure, Archives and records, Credit 
unions, Information, Records.

    By the National Credit Union Administration Board on June 6, 
2000.
Becky Baker,
Secretary of the Board.

    For the reasons set out in the preamble, the NCUA proposes to amend 
12 CFR Part 792 as follows:

PART 792--REQUESTS FOR INFORMATION UNDER THE FREEDOM OF INFORMATION 
ACT AND PRIVACY ACT, AND BY SUBPOENA; SECURITY PROCEDURES FOR 
CLASSIFIED INFORMATION

    1. The authority citation for part 792 continues to read as 
follows:

    Authority: 5 U.S.C. 301, 552, 552a, 552b; 12 U.S.C. 1752a(d), 
1766, 1789, 1795f; E.O. 12600, 52 FR 23781, 3 CFR, 1987 Comp., p. 
235; E.O. 12958, 60 FR 19825, 3 CFR, 1995 Comp., p. 333.


Sec. 792.41  [Amended]

    2. In Sec. 792.41, remove `` Sec. 792.4(b)(2)'' and add, in its 
place, ``Sec. 792.32.''


Sec. 792.47  [Amended]

    3. In Sec. 792.47(b), remove ``Sec. 792.5'' and add, in its place, 
``Sec. 792.19.''


Sec. 792.49  [Amended]

    4. In Sec. 792.49, in the definition of Nonpublic records, remove 
``Sec. 792.3'' and add, in its place, ``Sec. 792.11''.
    5. Amend Sec. 792.55 by revising paragraph (a)(3) to read as 
follows:


Sec. 792.55  Times, places and requirements for identification of 
individuals making requests and identification of records requested.

    (a) * * *
    (3) An individual seeking access to records about himself by mail 
or in person, who cannot provide the required documentation or 
identification, may provide an unsworn declaration subscribed to as 
true under penalty of perjury.
* * * * *
    6. Amend Sec. 792.56 by revising paragraphs (b)(1), (b)(2) and 
(b)(3) to read as follows:


Sec. 792.56  Notice of existence of records, access decisions and 
disclosure of requested information; time limits.

* * * * *
    (b) * * *
    (1) A request concerning a single system of records which does not 
require consultation with or requisition of records from another agency 
will be responded to within 20 working days after receipt of the 
request.
    (2) A request requiring requisition of records from or consultation 
with another agency will be responded to within 30 working days of 
receipt of the request.
    (3) If a request under paragraphs (b)(1) or (2) of this section 
presents unusual difficulties in determining whether the records 
involved are exempt from disclosure, the Privacy Act Officer, in the 
Office of General Counsel, may

[[Page 36799]]

extend the time period established by the regulations by 10 working 
days.
* * * * *
    7. Amend Sec. 792.57 by revising paragraph (b) to read as follows:


Sec. 792.57  Special Procedures: Information furnished by other 
agencies; medical records.

* * * * *
    (b) When an individual requests medical records concerning himself, 
the NCUA official responsible for action on the request may advise the 
individual that the records to be released will be provided first to a 
physician designated in writing by the individual. The physician will 
provide the records to the individual.
    8. Amend Sec. 792.58 by revising the fourth sentence of paragraph 
(a) to read as follows:


Sec. 792.58  Requests for correction or amendment to a record; 
administrative review of requests.

* * * * *
    (a) * * * An individual who does not have access to NCUA's ``Notice 
of Systems of Records,'' and to whom the appropriate address is 
otherwise unavailable, may submit a request to the Privacy Act Officer, 
Office of General Counsel, National Credit Union Administration, 1775 
Duke Street, Alexandria, Virginia, 22314-3428, in which case the 
request will then be referred to the appropriate NCUA official.* * *
* * * * *
    9. Amend Sec. 792.59 by revising paragraph (e) to read as follows:


Sec. 792.59  Appeal of initial determination.

* * * * *
    (e) If access is denied because of an exemption, the individual 
will be notified of the right to appeal that determination to the 
General Counsel within 30 days after receipt. Appeals will be 
determined within 20 working days.
    10. Amend Sec. 792.65 by revising paragraph (a)(1) to read as 
follows:


Sec. 792.65  Fees.

    (a) * * *
    (1) For copies of documents provided, copy fees as stated in NCUA's 
current FOIA fee schedule; and
* * * * *
    11. Amend Sec. 792.66 by revising the first sentence of paragraph 
(a), and the first two sentences of paragraph (b)(1), and the first 
sentence of paragraph (b)(2), and adding a new paragraph (b)(4) as 
follows:


Sec. 792.66  Exemptions.

    (a) NCUA maintains four systems of records that are exempted from 
some provisions of the Privacy Act. * * *
    (b)(1) System NCUA-1, entitled ``Employee Suitability Security 
Investigations Containing Adverse Information,'' consists of adverse 
information about NCUA employees that had been obtained as a result of 
routine U.S. Office of Personnel Management (OPM) security 
Investigations. To the extent that NCUA maintains records in this 
system pursuant to OPM guidelines that may require retrieval of 
information by use of individual identifiers, those records are 
encompassed by and included in the OPM Central system of records number 
Central-9 entitled, ``Personnel Investigations Records,'' and thus are 
subject to the exemptions promulgated by OPM. * * *
    (2) System NCUA-8, entitled, ``Investigative Reports Involving Any 
Crime or Suspicious Activity Against a Credit Union, NCUA,'' consists 
of investigatory or enforcement records about individuals suspected of 
involvement in violations of laws or regulations, whether criminal or 
administrative. * * *
* * * * *
    (4) System NCUA-13, entitled, ``Litigation Case Files,'' consists 
of investigatory materials compiled for law enforcement purposes. 
Records in the Litigation Case Files system are used in connection with 
the execution of NCUA's legal and enforcement responsibilities. Because 
the system covers investigatory materials compiled for law enforcement 
purposes, it is eligible for exemption under subsection (k)(2) of the 
Privacy Act. 5 U.S.C. 552a(k)(2). The Litigation Case Files system is 
exempt from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), (I) and 
(f) of the Privacy Act. 5 U.S.C. 552a (c)(3), (d), (e)(1), (e)(4)(G), 
(H), (I) and (f). However, if an individual is denied any right, 
privilege, or benefit to which he would otherwise be entitled by 
federal law, or for which he otherwise would be eligible, as a result 
of the maintenance of such records, the records or information will be 
made available to him, provided the identity of a confidential source 
is not disclosed.
* * * * *
    12. Amend Sec. 792.69 by revising the first sentence of paragraph 
(a) to read as follows:


Sec. 792.69  Training and employee standards of conduct with regard to 
privacy.

    (a) The Director of the Office of Training and Development, with 
advice from the General Counsel, is responsible for training NCUA 
employees in the obligations imposed by the Privacy Act and this 
subpart.* * *
* * * * *
[FR Doc. 00-14784 Filed 6-9-00; 8:45 am]
BILLING CODE 7535-01-P