[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Proposed Rules]
[Pages 67267-67270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23707]


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DEPARTMENT OF THE INTERIOR

Bureau of Safety and Environmental Enforcement

43 CFR Part 2

[Docket ID: BSEE-2016-0001; 167E1700D2 EEAA010000 ET1EX0000.SZH000]
RIN 1014-AA29


Privacy Act Regulations; Exemption for the Investigations Case 
Management System

AGENCY: Bureau of Safety and Environmental Enforcement, Interior.

ACTION: Proposed rule.

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SUMMARY: The Department of the Interior is amending its regulations to 
exempt certain records in the Investigations Case Management System 
from one or more provisions of the Privacy Act because of civil and 
administrative law enforcement requirements.

DATES: Submit written comments on or before November 29, 2016.

[[Page 67268]]


ADDRESSES: You may submit comments on this proposed rulemaking by any 
of the following methods. Please use the Regulation Identifier Number 
(RIN) 1014-AA29 as an identifier in your comments. BSEE may post all 
submitted comments, in their entirety, at: www.regulations.gov.
    1. Federal eRulemaking Portal: www.regulations.gov. In the search 
box, enter ``BSEE-2016-0001,'' then click search. Follow the 
instructions to submit public comments and view supporting and related 
materials available for this rulemaking.
    2. Mail or hand-carry comments to the Department of the Interior 
(DOI); Bureau of Safety and Environmental Enforcement; ATTN: 
Regulations and Standards Branch; 45600 Woodland Road, Mail Code VAE-
ORP; Sterling, VA 20166. Please reference ``Privacy Act Exemptions for 
the Investigations Case Management System, 1014-AA29,'' in your 
comments and include your name and return address.

FOR FURTHER INFORMATION CONTACT: Rowena Dufford, Bureau of Safety and 
Environmental Enforcement Privacy Act Officer, 45600 Woodland Road, 
Mail Stop VAE-MSD, Sterling, VA 20166. Email at 
[email protected].

SUPPLEMENTARY INFORMATION: 

Background

    The Privacy Act of 1974, as amended, 5 U.S.C. 552a, governs the 
means by which the U.S. Government collects, maintains, uses and 
disseminates personally identifiable information. The Privacy Act 
applies to records about individuals that are maintained in a ``system 
of records.'' A system of records is a group of any records under the 
control of an agency from which information about an individual is 
retrieved by the name of the individual or by some identifying number, 
symbol, or other identifying particular assigned to the individual. See 
5 U.S.C. 552a(a)(4) and (5).
    An individual may request access to records containing information 
about him or herself, 5 U.S.C. 552a(b), (c) and (d). However, the 
Privacy Act authorizes Federal agencies to exempt systems of records 
from access by individuals under certain circumstances, such as where 
the access or disclosure of such information would impede national 
security or law enforcement efforts. Exemptions from Privacy Act 
provisions must be established by regulation, 5 U.S.C. 552a(k).
    The Department of the Interior (DOI) Bureau of Safety and 
Environmental Enforcement (BSEE) created the ``Investigations Case 
Management System (CMS), BSEE-01'', system of records to enable BSEE to 
conduct and document civil administrative investigations related to 
incidents, operations of the Outer Continental Shelf (OCS), and 
employee misconduct investigations. The CMS will store, track, and 
analyze reportable injuries, the loss or damage of property, possible 
violations of Federal laws and regulations, and investigation 
information related to operations on the OCS to identify safety 
concerns or environmental risks. The CMS will contain investigatory 
materials related to possible criminal activity and referrals to 
internal and external law enforcement organizations as appropriate for 
investigation.
    Incident and non-incident data related to activity occurring on the 
OCS collected in support of investigations, regulatory enforcement, 
homeland security, and security (physical, personnel, stability, 
environmental, and industrial) activities may include data documenting 
investigation activities, enforcement recommendations, recommendation 
results, property damage, injuries, fatalities, and analytical or 
statistical reports. The CMS will also provide information for BSEE 
management to make informed decisions on recommendations for 
enforcement, civil penalties, and other administrative actions.
    In this notice of proposed rulemaking, DOI is proposing to exempt 
portions of the CMS system of records from certain provisions of the 
Privacy Act pursuant to 5 U.S.C. 552a(k)(2) because of civil and 
administrative law enforcement requirements. Under 5 U.S.C. 552a(k)(2), 
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).''
    Because this system of records contains investigative matters 
compiled for law enforcement purposes under the provisions of 5 U.S.C. 
552a(k)(2), the Department of the Interior plans to exempt portions of 
the CMS system of records from one or more of the following provisions: 
5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f). 
Where a release would not interfere with or adversely affect 
investigations or enforcement activities, including but not limited to 
revealing sensitive information or compromising confidential sources, 
the exemption may be waived on a case-by-case basis. Exemptions from 
these particular subsections are justified for the following reasons:
    1. 5 U.S.C. 552a(c)(3). This section requires an agency to make the 
accounting of each disclosure of records required by the Privacy Act 
available to the individual named in the record upon request. Release 
of accounting of disclosures would alert the subjects of an 
investigation to the existence of the investigation and the fact that 
they are subjects of the investigation. The release of such information 
to the subjects of an investigation would provide them with significant 
information concerning the nature of the investigation, and could 
seriously impede or compromise the investigation; and lead to the 
improper influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony.
    2. 5 U.S.C. 552(d); (e)(4)(G) and (e)(4)(H); and (f). These 
sections require an agency to provide notice and disclosure to 
individuals that a system contains records pertaining to the 
individual, as well as providing rights of access and amendment. 
Granting access to records in the CMS system of records could inform 
the subject of an investigation of the existence of that investigation, 
the nature and scope of the information and evidence obtained, the 
identity of confidential sources, witnesses, lead to the improper 
influencing of witnesses, the destruction of evidence, or the 
fabrication of testimony; and disclose investigative techniques and 
procedures.
    3. 5 U.S.C. 552a(e)(1). This section requires the agency to 
maintain information about an individual only to the extent that such 
information is relevant or necessary. The application of this provision 
could impair investigations and civil or administrative law 
enforcement, because it is not always possible to determine the 
relevance or necessity of specific information in the early stages of 
an investigation. Relevance and necessity are often questions of 
judgment and timing, and it is only after the information is evaluated 
that the relevance and necessity of such information can be 
established. Furthermore, during the course of the investigation, an 
investigator may obtain information concerning the violation of laws 
outside the scope of the investigator's jurisdiction. BSEE 
investigators will refer information obtained outside of their civil or 
administrative jurisdictions to the appropriate agency.
    4. 5 U.S.C. 552a(e)(4)(I). This section requires an agency to 
provide public notice of the categories of sources of records in the 
system. The application

[[Page 67269]]

of this section could disclose investigative techniques and procedures 
and cause sources to refrain from giving such information because of 
fear of reprisal. This could compromise BSEE's ability to conduct 
investigations and to identify and detect violators.

Procedural Requirements

1. Regulatory Planning and Review (Executive Orders 12866 and 13563)

    Executive Order 12866 provides that the Office of Information and 
Regulatory Affairs in the Office of Management and Budget will review 
all significant rules. The Office of Information and Regulatory Affairs 
has determined that this rule is not significant. Executive Order 13563 
reaffirms the principles of E.O. 12866 while calling for improvements 
in the nation's regulatory system to promote predictability, to reduce 
uncertainty, and to use the best, most innovative, and least burdensome 
tools for achieving regulatory ends. The executive order directs 
agencies to consider regulatory approaches that reduce burdens and 
maintain flexibility and freedom of choice for the public where these 
approaches are relevant, feasible, and consistent with regulatory 
objectives. E.O. 13563 emphasizes further that regulations must be 
based on the best available science and that the rulemaking process 
must allow for public participation and an open exchange of ideas. DOI 
developed this rule in a manner consistent with these requirements.

2. Regulatory Flexibility Act

    DOI 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. The rule is not a governmental action 
capable of interference with constitutionally protected property 
rights. 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 (NEPA) of 1969

    This rule does not constitute a major Federal Action significantly 
affecting the quality of the human environment. A detailed statement 
under the National Environmental Policy Act of 1969 (NEPA) is not 
required because the rule is covered by a categorical exclusion. This 
rule meets the criteria set forth in 43 CFR 46.210(i), 516 Departmental 
Manual 15.4C(1), and the BSEE Interim NEPA Policy Document 2013-09, for 
a categorical exclusion. The rule's administrative effects are to 
exempt CMS from certain provisions of the Privacy Act pursuant to 5 
U.S.C. 552a(k)(2) because of civil and administrative law enforcement 
requirements and therefore would not have any environmental impacts. 
BSEE also analyzed this proposed rule to determine if it involves any 
of the extraordinary circumstances set forth in 43 CFR 46.215 that 
would require an environmental assessment or an environmental impact 
statement for actions otherwise eligible for a categorical exclusion. 
BSEE concluded that this rule does not meet any of the criteria for 
extraordinary circumstances.

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, and it is not likely to have a significant 
adverse effect on the supply, distribution, or use of energy. 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

[[Page 67270]]

--Use lists and table wherever possible.

List of Subjects in 43 CFR Part 2

    Administrative practice and procedure, Confidential information, 
Courts, Freedom of Information Act, Privacy Act.

    Dated: September 7, 2016.
Kristen J. Sarri,
Principal Deputy 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--FREEDOM OF INFORMATION ACT; RECORDS AND TESTIMONY

0
1. The authority citation for part 2 continues to read as follows:

    Authority:  5 U.S.C. 301, 552, 552a, 553; 31 U.S.C. 3717; 43 
U.S.C. 1460, 1461.

0
2. Amend Sec.  2.254 to add paragraph (b)(18) to read as follows:


Sec.  2.254  Exemptions.

* * * * *
    (b) * * *
    (18) Investigations Case Management System (CMS), BSEE-01.

[FR Doc. 2016-23707 Filed 9-29-16; 8:45 am]
 BILLING CODE 4310-VH-P