[Federal Register Volume 83, Number 164 (Thursday, August 23, 2018)]
[Proposed Rules]
[Pages 42627-42630]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-17888]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

45 CFR Part 5b

RIN 0991-AC10


Privacy Act; Implementation

AGENCY: Department of Health and Human Services.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In accordance with the Privacy Act of 1974, as amended (the 
Act), the Department of Health and Human Services (HHS or Department) 
is proposing to exempt a new system of records, System No. 09-90-1701, 
HHS Insider Threat Program Records, from certain requirements of the 
Act.

DATES: Comments on this notice must be received by September 24, 2018.

ADDRESSES: The public should address written comments on this notice by 
email to [email protected] or by mail to the HHS Office of Security and 
Strategic Information (OSSI), 200 Independence Avenue SW, Washington, 
DC 20201.

FOR FURTHER INFORMATION CONTACT: General questions about the NPRM may 
be submitted to the Assistant Deputy Secretary for National Security by 
email to [email protected], by telephone to (202) 690-5756, or by mail to 
the HHS Office of Security and Strategic Information (OSSI), 200 
Independence Avenue SW, Washington, DC 20201.

SUPPLEMENTARY INFORMATION:

I. Background on the Insider Threat Program and New System of Records 
09-90-1701

    Each federal agency is mandated by Presidential Executive Order 
13587, issued October 7, 2011, to establish an insider threat detection 
and prevention program to ensure the security of classified networks 
and the responsible sharing and safeguarding of classified information 
consistent with appropriate protections for privacy and civil 
liberties. The order states in section 2.1:
    The heads of agencies that operate or access classified computer 
networks shall have responsibility for appropriately sharing and 
safeguarding classified information on computer networks. As part of 
this responsibility, they shall implement an insider threat detection 
and prevention program consistent with guidance and standards developed 
by the Insider Threat Task Force established in section 6 of this 
order.
    A threat need not be directed at classified information to threaten 
classified networks. Consequently, insider threats include any of the 
following: Attempted or actual espionage, subversion, sabotage, 
terrorism, or extremist activities directed against the Department and 
its personnel, facilities, information resources, and activities; 
unauthorized use of or intrusion into automated information systems; 
unauthorized disclosure of classified, controlled unclassified, 
sensitive, or proprietary information to technology; indicators of 
potential insider threats or other incidents that may indicate 
activities of an insider threat; and other threats to the Department, 
such as indicators of potential for workplace violence or misconduct.

[[Page 42628]]

    The office that will administer the Department's Insider Threat 
Program, the Office of Security and Strategic Information (OSSI), 
serves as the Department's Federal Intelligence Coordinating Office 
(FICO), which is responsible for coordinating the sharing and 
safeguarding of classified national security information between HHS 
and its operating divisions and with the Office of the Director of 
National Intelligence (ODNI) and its component agencies within the 
Intelligence Community. Within OSSI, the Directorate of Operations 
(Counterintelligence) will oversee the Insider Threat Program; its 
responsibilities include identifying, countering, mitigating, and 
deterring exploitation of HHS personnel, information, assets, and other 
equities by foreign intelligence and security services and agents, 
terrorists, and transnational criminal organizations working under the 
direction of a foreign entity. HHS counterintelligence efforts include 
(1) counterintelligence inquiries and preliminary investigations, (2) 
national security incident investigations, (3) counterintelligence 
analysis, (4) insider threats detection and mitigation efforts, (5) 
counterintelligence and insider threat awareness, and (6) technical 
threat detection and mitigation.
    The records that OSSI compiles to administer the HHS Insider Threat 
Program, which will be covered by System No. 09-90-1701, may be from 
any source, including from any HHS component, office, program, record 
or source, another government agency, or a member of the public; and 
may include records pertaining to information security, personnel 
security, or systems security. This system of records includes 
investigatory material compiled for law enforcement purposes and 
information classified in the interest of national security.
    Note that System No. 09-90-1701 will not cover investigatory 
material that OSSI compiles solely for the purpose of determining 
suitability, eligibility, or qualification for federal civilian 
employment, military service, federal contracts, or access to 
classified information, because such records are covered by other HHS 
systems of records; specifically: 09-90-0002 ``Investigatory Material 
Compiled for Security and Suitability Purposes System'' with respect to 
HHS Office of Inspector General determinations, and 09-90-0020 
``Suitability for Employment Records'' as to all other HHS 
determinations.
    The new system of records will consist of records compiled and used 
by the Department's Office of Security and Strategic Information 
(OSSI), within the Immediate Office of the Secretary (IOS), to 
administer the Department's Insider Threat Program, including law 
enforcement investigatory material and classified intelligence 
information. Such records are eligible to be exempted from certain 
requirements of the Privacy Act under subsections (k)(1) and (k)(2) of 
the Act. The exemptions proposed for those records are necessary and 
appropriate to protect the integrity of insider threat investigations 
and records and prevent disclosure of information that would reveal 
investigation subjects, investigative and security techniques, national 
security information, security sensitive information, personal privacy 
information, and identities of confidential sources and law enforcement 
personnel involved in investigations. Elsewhere in today's Federal 
Register HHS has published a System of Records Notice (SORN) for System 
No. 09-90-1701 for public notice and comment which describes the new 
system of records in more detail.
    The Privacy Act requirements from which HHS is proposing to exempt 
eligible records in System No. 09-90-1701 are those contained in 
subsections (c)(3), (d)(1)-(4), (e)(1), (e)(4)(G), (H), and (I), and 
(f) of the Privacy Act, which require the agency to provide an 
accounting of disclosures; provide notification, access, and amendment 
rights, rules, and procedures; maintain only relevant and necessary 
information; and identify categories of record sources. If the HHS 
Insider Threat Program obtains law enforcement investigatory material 
from another Privacy Act system of records that has been exempted from 
Privacy Act requirements based on subsection (j)(2) of the Act, that 
material will be exempt in System No. 09-90-1701 to the same extent it 
is exempt in the source system, so may be exempt from any of these 
subsections of the Act: (c)(3)-(4); (d)(1)-(4); (e)(1)-(3), (e)(4)(G)-
(I), (e)(5), (e)(8), (e)(12); (f); (g); and (h).

II. Proposed Exemptions and Affected Records

    The Insider Threat Program system of records includes investigatory 
material compiled for law enforcement purposes and information 
classified in the interest of national security. While OSSI does not 
perform criminal law enforcement activity as its principal function, 
OSSI may compile in System No. 09-90-1701 material obtained from other 
agencies or components which perform as their principal function 
activities pertaining to the enforcement of criminal laws, and which 
have exempted their records from certain Privacy Act requirements, 
based on 5 U.S.C. 552a(j)(2). All other investigatory material compiled 
for law enforcement purposes is eligible to be exempted from certain 
Privacy Act requirements based on 5 U.S.C. 552a(k)(2). Information 
classified in the interest of national security is eligible to be 
exempted from certain Privacy Act requirements, based on 5 U.S.C. 
552a(k)(1). Accordingly, the Department is establishing these 
exemptions for System No. 09-90-1701:
     Law enforcement investigatory material that is from 
another system of records in which such material was exempted from 
access and other requirements of the Privacy Act (the Act), based on 5 
U.S.C. 552a(j)(2), will be exempt in System No. 09-901701 on the same 
basis (5 U.S.C. 552a(j)(2)) and from the same requirements as in the 
source system, which may include any of these requirements of the Act: 
(c)(3)-(4); (d)(1)-(4); (e)(1)-(3), (e)(4)(G)-(I), (e)(5), (e)(8), 
(e)(12); (f); (g); and (h);
     All other law enforcement investigatory material in System 
No. 09-90-1701 will be exempt, based on 5 U.S.C. 552a(k)(2), from the 
requirements in subsections (c)(3), (d)(1)-(4), (e)(1), and (e)(4)(G)-
(I), and (f) of the Act, However, if any individual is denied a right, 
privilege, or benefit to which the individual would otherwise be 
entitled by Federal law or for which the individual would otherwise be 
eligible, access will be granted, except to the extent that the 
disclosure would reveal the identity of a source who furnished 
information to the Government under an express promise of 
confidentiality; and
     Information that is classified in the interest of national 
security will be exempt, based on 5 U.S.C. 552a(k)(1), from the 
requirements in subsections (c)(3), (d)(1)-(4), (e)(1), and (e)(4)(G)-
(I), and (f) of the Act.

III. Exemption Rationales

    These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k). Where HHS 
determines compliance would not appear to interfere with or adversely 
affect the purpose of this system to detect, deter, or mitigate insider 
threats, the applicable exemption may be waived by HHS in its sole 
discretion. Exemptions from the particular subsections are necessary 
and appropriate, and justified for the following reasons:
     5 U.S.C. 552a(c)(3) (the requirement to provide 
accountings of disclosures) and 5 U.S.C. 552a(d)(1)-(4) (requirements 
addressing notification, access, and amendment rights,

[[Page 42629]]

collectively referred to herein as access requirements). Providing 
individual record subjects with accountings of disclosures and with 
notification, access, and amendment rights with respect to Insider 
Threat Program records could reveal the existence of an investigation, 
investigative interest, investigative techniques, details about an 
investigation, security-sensitive information such as information about 
security measures and security vulnerabilities, information that must 
remain non-public to protect national security or personal privacy-
identities of law enforcement personnel, or other sensitive or 
classified information. Revealing such information to record subjects 
would thwart or impede pending and future law enforcement 
investigations and efforts to protect national security, and would 
violate personal privacy. Revealing the information would enable record 
subjects or other persons to evade detection and apprehension by 
security and law enforcement personnel; destroy, conceal, or tamper 
with evidence or fabricate testimony; or harass, intimidate, harm, 
coerce, or retaliate against witnesses, complainants, investigators, 
security personnel, law enforcement personnel, or their family members, 
their employees, or other individuals. With respect to investigatory 
material compiled for law enforcement purposes, the exemption pursuant 
to 5 U.S.C. 552a(k)(2) from access requirements in subsection (d) of 
the Act is statutorily limited. If any individual is denied a right, 
privilege, or benefit to which the individual would otherwise be 
entitled by Federal law or for which the individual would otherwise be 
eligible, access will be granted, except to the extent that the 
disclosure would reveal the identity of a source who furnished 
information to the Government under an express promise of 
confidentiality.
     5 U.S.C. 552a(e)(1) (the requirement to maintain only 
relevant and necessary information authorized by statute or Executive 
Order). It will not always be possible to determine at the time 
information is received or compiled in this system of records whether 
the information is or will be relevant and necessary to a law 
enforcement investigation or to protecting national security. For 
example, a tip or lead that does not appear relevant or necessary to 
uncovering an insider threat by itself or at the time the tip or lead 
is received may prove to be relevant and necessary when combined with 
other information that reveals a pattern or that comes to light later.
     5 U.S.C. 552a(e)(4)(G) and (H) (the requirements to 
describe procedures by which subjects may be notified of whether the 
system of records contains records about them and seek access or 
amendment of a record). These requirements concern individual access to 
records, and the records are exempt under (c) and (d), as described 
above. To the extent that (e)(4)(G) and (H) are interpreted to require 
more detailed procedures regarding record notification, access, or 
amendment than have been published in the Federal Register, exemption 
from those provisions is necessary for the same rationale as applies to 
(c) and (d).
     5 U.S.C. 552a(e)(4)(I) (the requirement to describe the 
categories of record sources). To the extent that this subsection is 
interpreted to require a more detailed description regarding the record 
sources in this system than has been published in the Federal Register, 
exemption from this provision is necessary to protect the sources of 
law enforcement and intelligence information and to protect the privacy 
and safety of witnesses and informants and others who provide 
information to HHS. Further, greater specificity of sources of properly 
classified records could compromise national security. Moreover, 
because records used in the Insider Threat Program could come from any 
source, it is not possible to know every category in advance in order 
to list them all in the SORN. Some record source categories may not be 
appropriate to make public in the SORN if, for example, revealing them 
could enable record subjects or other individuals to discover 
investigative techniques and devise ways to bypass them to evade 
detection and apprehension.
     5 U.S.C. 552a(f) (the requirement to promulgate rules to 
implement provisions of the Privacy Act). To the extent that this 
subsection is interpreted to require agency rules addressing the above 
exempted requirements, exemption from this provision is also necessary 
to protect the sources of law enforcement and intelligence information 
and to protect the privacy and safety of witnesses and informants and 
others who provide information to HHS. Greater specificity in 
rulemaking regarding properly classified records could compromise 
national security.

IV. Analysis of Impacts

    The agency has reviewed this rule under Executive Orders 12866 and 
13563, which direct agencies to assess costs and benefits of available 
regulatory alternatives and, if regulation is necessary, to maximize 
the net benefits. The agency believes that this rule is not a 
significant regulatory action under Executive Order 12866, and 
therefore does not constitute an Executive Order 13771 regulatory 
action, because it will not (1) 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, public health or safety, or State, local or tribal 
governments or communities; (2) create a serious inconsistency or 
otherwise interfere with an action taken or planned by another agency; 
(3) materially alter the budgetary impact of entitlements, grants, user 
fees or loan programs, or the rights and obligations of recipients 
thereof; or (4) raise novel legal or policy issues arising out of legal 
mandates, the President's priorities, or the principles set forth in 
Executive Order 12866.
    The Regulatory Flexibility Act requires agencies to analyze 
regulatory options that would minimize any significant impact of a rule 
on small entities. Because the rule imposes no duties or obligations on 
small entities, the Department certifies that the rule will not have a 
significant economic impact on a substantial number of small entities.
    Section 202(a) of the Unfunded Mandates Reform Act of 1995 requires 
that agencies prepare a written statement, which includes an assessment 
of anticipated costs and benefits, before proposing ``any rule that 
includes any Federal mandate that may result in the expenditure by 
State, local, and tribal governments, in the aggregate, or by the 
private sector, of $100,000,000 or more (adjusted annually for 
inflation) in any one year.'' The current threshold after adjustment 
for inflation is $144 million, using the most current (2015) Implicit 
Price Deflator for the Gross Domestic Product. The Department does not 
expect that this final rule would result in any one-year expenditure 
that would meet or exceed this amount.

List of Subjects in 45 CFR Part 5b

    Privacy.

    For the reasons stated in the preamble, the Department's Privacy 
Act Regulations, part 5b of 45 CFR Subtitle A, are proposed to be 
amended as follows:

PART 5b--PRIVACY ACT REGULATIONS

0
1. The authority citation for Part 5b continues to read as follows:

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


[[Page 42630]]


0
2. Section 5b.11 is amended by adding paragraph (b)(2)(viii)(A) to read 
as follows:


Sec.  5b.11  Exempt systems.

* * * * *
    (b) * * *
    (2) * * *
    (viii) * * *
    (A) HHS Insider Threat Program Records, 09-90-1701.


    Dated: June 29, 2018.
Michael Schmoyer,
Assistant Deputy Secretary for National Security.

    Dated: August 13, 2018.
Alex M. Azar II,
Secretary.
[FR Doc. 2018-17888 Filed 8-22-18; 8:45 am]
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