[Federal Register Volume 76, Number 162 (Monday, August 22, 2011)]
[Proposed Rules]
[Pages 52295-52297]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-21306]


-----------------------------------------------------------------------

DEPARTMENT OF THE INTERIOR

43 CFR Part 2

RIN 1090-AA94


Amendment of Privacy Act Regulations, Request for Comments

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed Rule.

-----------------------------------------------------------------------

SUMMARY: The Department of the Interior is amending its regulations to 
exempt certain records from particular provisions of the Privacy Act. 
Specifically, the Department proposes to exempt certain records of the 
newly-created Debarment and Suspension Program system of records from 
one or more provisions of the Privacy Act.

DATES: Submit written comments on October 3, 2011.

ADDRESSES: Send written comments, identified by RIN 1090-AA94, by one 
of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Karen Burke, OS/NBC Privacy Act Officer, Office of 
the Secretary, Department of the Interior, 1951 Constitution Ave, NW., 
Mail Stop 116 SIB, Washington, DC 20240.
     E-mail: Karen Burke, OS/NBC Privacy Act Officer, Office of 
the Secretary, [email protected].

FOR FURTHER INFORMATION CONTACT: Karen Burke, OS/NBC Privacy Act 
Officer, Office of the Secretary, U.S. Department of the Interior, 1951 
Constitution Avenue, NW., Mail Stop 116 SIB, Washington, DC 20240. E-
mail at [email protected].

SUPPLEMENTARY INFORMATION:

Background

    The Department of the Interior (DOI) Office of Acquisition and 
Property Management maintains the Debarment and Suspension Program 
system of records. The primary purpose of this system of records is to 
assist DOI in conducting and documenting debarment and suspension 
proceedings to ensure that Federal procurements and Federal 
discretionary assistance, loans, and benefits are awarded to presently 
responsible business entities, organizations, and individuals. 
Additional purposes of the system are to: Promote understanding of the 
case decision path and concerns addressed by the debarring and 
suspending official in reaching a decision; to promote the submission 
of relevant arguments in contested cases; to educate the public and 
private bar as to the kinds of mitigating factors and remedial measures 
that demonstrate present responsibility; and to enhance the 
transparency of decision making.
    Pursuant to 5 U.S.C. 552a (k)(2) and (k)(5), the head of a Federal 
agency may promulgate rules to exempt a system of records from certain 
provisions of 5 U.S.C. 552a if the system of records is ``investigatory 
material complied for law enforcement purposes, other than material 
within the scope of subsection (j)(2)'' or ``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. * * *''
    To the extent that this system of records contains investigatory 
material within the provision of 5 U.S.C. 552a(k)(2) and (k)(5), the 
Department of the Interior proposes to exempt the Debarment and 
Suspension Program System of Records from provisions 5 U.S.C. 
552a(c)(3); (d); (e)(1), (e)(4)(G), (H), (I); and (f). Exemptions from 
these particular subsections are justified for the following reasons:
    1. From subsection (c)(3) because granting access to the accounting 
for each disclosure as normally required by the Privacy Act, including 
the date, nature, and purpose of each disclosure and the identity of 
the recipient, could alert the subject to the existence of the 
investigation or action interest by DOI or other agencies. This could 
seriously compromise case preparation by prematurely revealing its 
existence and nature; compromise or interfere with witnesses or make 
witnesses reluctant to cooperate; and/or lead to suppression, 
alteration, or destruction of evidence.
    2. From subsections (d) and (f) because providing access to records 
of a debarment or suspension action investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein to individuals whose names may appear 
in the records due to having provided information about a respondent 
but who are not the subject of the debarment or suspension action would 
seriously interfere with and thwart the orderly and unbiased conduct of 
the investigation, impede debarment or suspension case preparation, 
and/or conflict with the evidentiary fact finding process under the 
debarment and suspension rules.
    Providing rights normally afforded under the Privacy Act and agency 
rules could provide the subject with valuable information that would 
allow interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or result in 
destruction of evidence interfering with the development of the 
suspension or debarment action; and/or jeopardize pending or ongoing 
judicial proceedings or impede the ability to act to protect Federal 
procurement and non-procurement program interests. Additionally, the 
debarment and suspension rules provide a process which accords 
recipients of action notices, as part of the contest process, the 
opportunity, where facts material to the action are determined to be 
genuinely in dispute, for an evidentiary fact finding hearing at which 
to confront and cross examine the government's witnesses.
    3. From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity to accomplish a purpose of the agency will be clear.
    4. From subsections (e)(4)(G) and (H) because there is no necessity 
for such publication since the system of records will be exempt from 
the underlying duties to provide notification about and access to 
information in the system and to make amendments to and corrections of 
the information in the system.
    5. From subsection (e)(4)(I) because to the extent that this 
provision is construed to require more detailed disclosure than the 
broad, generic information currently published in the system notice, an 
exemption from this provision is necessary to protect the 
confidentiality of sources of information and to protect privacy and 
physical safety of witnesses and informants. DOI will, nevertheless, 
continue to publish such a notice in broad generic terms as is its 
current practice.

[[Page 52296]]

Procedural Requirements

1. Regulatory Planning and Review (E.O. 12866)

    The Office of Management and Budget (OMB) has determined that this 
rule is not a significant rule and has not reviewed it under the 
requirements of Executive Order 12866. We have evaluated the impacts of 
the rule as required by E.O. 12866 and have determined that it does not 
meet the criteria for a significant regulatory action. The results of 
our evaluation are given below.
    (a) This rule will not have an annual effect of $100 million or 
more on the economy. It will not adversely affect in a material way the 
economy, productivity, competition, jobs, the environment, public 
health or safety, or State, local or Tribal governments or communities.
    (b) This rule would not create a serious inconsistency or otherwise 
interfere with an action taken or planned by another agency.
    (c) This rule does not alter the budgetary effects of entitlements, 
grants, user fees, concessions, loan programs, water contracts, 
management agreements, or the rights and obligations of their 
recipients.
    (d) This rule does not raise any novel legal or policy issues.

2. Regulatory Flexibility Act

    The Department of the Interior certifies that this document will 
not have a significant economic effect on a substantial number of small 
entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). 
This rule does not impose a requirement for small businesses to report 
or keep records on any of the requirements contained in this rule. The 
exemptions to the Privacy Act apply to individuals, and individuals are 
not covered entities under the Regulatory Flexibility Act.

3. Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This rule is not a major rule under 5 U.S.C. 804(2), the Small 
Business Regulatory Enforcement Fairness Act. This rule:
    (a) Does not have an annual effect on the economy of $100 million 
or more.
    (b) Will not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Does not have significant adverse effects on competition, 
employment, investment, productivity, innovation, or the ability of 
United States-based enterprises to compete with foreign-based 
enterprises.

4. Unfunded Mandates Reform Act

    This rule does not impose an unfunded mandate on State, local, or 
Tribal governments in the aggregate, or on the private sector, of more 
than $100 million per year. The rule does not have a significant or 
unique effect on State, local, or Tribal governments or the private 
sector. This rule makes only minor changes to 43 CFR part 2. A 
statement containing the information required by the Unfunded Mandates 
Reform Act (2 U.S.C. 1531 et seq.) is not required.

5. Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rule does not have 
significant takings implications. This rule makes only minor changes to 
43 CFR part 2. A takings implication assessment is not required.

6. Federalism (E.O. 13132)

    In accordance with Executive Order 13132, this rule does not have 
any federalism implications to warrant the preparation of a Federalism 
Assessment. The rule is not associated with, nor will it 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. A 
Federalism Assessment is not required.

7. Civil Justice Reform (E.O. 12988)

    This rule complies with the requirements of Executive Order 12988. 
Specifically, this rule:
    (a) Does not unduly burden the judicial system.
    (b) Meets the criteria of section 3(a) requiring that all 
regulations be reviewed to eliminate errors and ambiguity and be 
written to minimize litigation; and
    (c) Meets the criteria of section 3(b)(2) requiring that all 
regulations be written in clear language and contain clear legal 
standards.

8. Consultation With Indian Tribes (E.O. 13175)

    In accordance with Executive Order 13175, the Department of the 
Interior has evaluated this rule and determined that it would have no 
substantial effects on Federally recognized Indian Tribes.

9. Paperwork Reduction Act

    This rule does not require an information collection from 10 or 
more parties and a submission under the Paperwork Reduction Act is not 
required.

10. National Environmental Policy Act

    This rule does not constitute a major Federal action and would not 
have a significant effect on the quality of the human environment. 
Therefore, this rule does not require the preparation of an 
environmental assessment or environmental impact statement under the 
requirements of the National Environmental Policy Act of 1969.

11. Data Quality Act

    In developing this rule, there was no need to conduct or use a 
study, experiment, or survey requiring peer review under the Data 
Quality Act (Pub. L. 106-554).

12. Effects on Energy Supply (E.O. 13211)

    This rule is not a significant energy action under the definition 
in Executive Order 13211. A Statement of Energy Effects is not 
required.

13. Clarity of This Regulation

    We are required by Executive Order 12866 and 12988, the Plain 
Writing Act of 2010 (H.R. 946), and the Presidential Memorandum of June 
1, 1998, to write all rules in plain language. This means each rule we 
publish must:

--Be logically organized;
--Use the active voice to address readers directly;
--Use clear language rather than jargon;
--Be divided into short sections and sentences; and
--Use lists and tables wherever possible.

List of Subjects in 43 CFR Part 2

    Privacy Act, Sensitive information, Freedom of Information Act, 
Reporting and recordkeeping requirements.

    Dated: August 9, 2011.
Rhea Suh,
Assistant Secretary for Policy, Management and Budget.

    For the reasons stated in the preamble, the Department of the 
Interior proposes to amend 43 CFR part 2 as follows:

PART 2--RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT

    1. The authority citation for part 2 continues to read as follows:

    Authority: 5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701 and 43 
U.S.C. 1460-1461. Appendix F to Part 2 also is issued under 30 
U.S.C. 201-209; 30 U.S.C. 351-360.

    2. In Sec.  2.79, add paragraphs (b)(14) and (c)(4) to read as 
follows:


Sec.  2.79  Exemptions.

* * * * *

[[Page 52297]]

    (b)* * *
    (14) Debarment and Suspension Program, DOI-11.
    (c)* * *
    (4) Debarment and Suspension Program, DOI-11.
* * * * *
[FR Doc. 2011-21306 Filed 8-19-11; 8:45 am]
BILLING CODE 4310-RK-P