[Federal Register Volume 85, Number 27 (Monday, February 10, 2020)]
[Proposed Rules]
[Pages 7515-7518]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00356]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 2
[DS65100000, DWSN00000.000000, DP.65106, 20XD4523WS]
RIN 1090-AB13
Privacy Act Regulations; Exemption for the Physical Security
Access Files System
AGENCY: Office of the Secretary, Interior.
ACTION: Notice of a proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior is amending its regulations to
exempt certain records in the INTERIOR/DOI-46, Physical Security Access
Files, system of records from one or more provisions of the Privacy Act
because of criminal, civil, and administrative law enforcement
requirements.
DATES: Submit comments on or before April 10, 2020.
ADDRESSES: You may submit comments, identified by docket number [DOI-
2018-0005] or [Regulatory Information Number (RIN) 1090-AB13], by any
of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for sending comments.
Email: [email protected]. Include docket number
[DOI-2018-0005] or [RIN 1090-AB13] in the subject line of the message.
U.S. Mail or Hand-Delivery: Teri Barnett, Departmental
Privacy Officer, U.S. Department of the Interior, 1849 C Street NW,
Room 7112, Washington, DC 20240.
Instructions: All submissions received must include the agency name
and docket number [DOI-2018-0005] or [RIN 1090-AB13]. All comments
received will be posted without change to http://www.regulations.gov,
including any personal information provided.
Docket: For access to the docket to read background documents or
comments received, go to http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Teri Barnett, Departmental Privacy
Officer, U.S. Department of the Interior, 1849 C Street NW, Room 7112,
Washington, DC 20240, [email protected] or (202) 208-1605.
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 information about individuals that is 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(j) and (k).
The Department of the Interior (DOI), Office of Law Enforcement and
Security, maintains the Physical Security Access Files system of
records. This system helps DOI manage physical security operations and
visitor access to DOI-controlled facilities and implement Homeland
Security Presidential Directive 12 (HSPD-12), which requires Federal
agencies to use a common identification credential for both logical and
physical access to federally-controlled facilities and information
systems. DOI employees, contractors, consultants, volunteers, Federal
emergency response officials, Federal employees on detail or
temporarily assigned to work in DOI facilities, visitors, and other
individuals require access to agency facilities, systems or networks.
DOI uses integrated identity management systems to issue credentials to
verify individuals' identities, manage access controls, and ensure the
security of DOI controlled facilities. This Department-wide system of
records notice covers physical security program records and activities,
including all DOI controlled areas where paper-based physical security
logs and registers have been established, in addition to or in place of
smart-card access control systems. Incident and non-incident data
collected in relation to criminal and civil activity during the course
of managing this system may be referred to internal and external
organizations as appropriate in support of law enforcement, homeland
security, and physical or personnel security, information security, and
related activities. DOI last published the ``HSPD-12: Physical Security
Files--Interior, DOI-46'' system notice in the Federal Register at 72
FR 11043 (March 12, 2007).
In this notice of proposed rulemaking, DOI is proposing to revise
the Privacy Act regulations at 43 CFR 2.254 to reorder existing
paragraphs to add new paragraphs for additional exempt systems pursuant
to 5 U.S.C. 552a(k) as follows:
Redesignate paragraphs (b)(1)-(17) as paragraphs (c)(1)-
(17) and add a new paragraph (c)(19) to exempt the INTERIOR/DOI-46,
Physical Security Access Files system as described in this document;
Add a new paragraph (b) to be reserved for future exempt
systems;
Redesignate paragraphs (c)(1)-(4) as paragraphs (e)(1)-(4)
and add paragraph (e)(5) to exempt the INTERIOR/DOI-46, Physical
Security Access Files system as described in this document; and
[[Page 7516]]
Add a new paragraph (d) for records maintained in
connection with providing protective services that are exempt under 5
U.S.C. 552a(k)(3) and add a new paragraph (d)(1) to exempt the
INTERIOR/DOI-46, Physical Security Access Files system as described in
this document.
DOI is proposing to exempt portions of this system from certain
provisions of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2), (k)(3),
and (k)(5) due to criminal, civil, and administrative law enforcement
requirements. Under 5 U.S.C. 552a(k)(2), (k)(3), 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 compiled for law enforcement purposes 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. Additionally, agencies may promulgate rules to
exempt records from provisions of the Privacy Act to protect
investigations or records that may contain information obtained from
another agency or are maintained in connection to providing protective
services to the President of the United States or other individuals
pursuant to 18 U.S.C. 3056. The DOI Office of Law Enforcement and
Security manages physical security operations and coordinates security
with other Federal agencies to protect visiting dignitaries and ensure
the safety of individuals protected pursuant to 18 U.S.C. 3056.
Application of exemption (k)(3) may be necessary to preclude an
individual subject's access to and amendment of personnel
investigations or information connected to these activities that meet
the criteria of 5 U.S.C. 552a(k)(3).
Because this system of records contains material that support
activities related to investigations, criminal law enforcement, and
homeland security purposes under the provisions of 5 U.S.C. 552a(k)(2),
(k)(3), and (k)(5), the Department of the Interior proposes to exempt
portions of the Physical Security Access Files system from one or more
of the following provisions: 5 U.S.C. 552a(c)(3), (d), (e)(1),
(e)(4)(G) through (e)(4)(I), and (f). Where a release would not
interfere with or adversely affect investigations, law enforcement or
homeland security 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 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, endanger the physical safety of confidential sources,
witnesses and their families, and lead to the improper influencing of
witnesses, the destruction of evidence, or the fabrication of
testimony.
2. 5 U.S.C. 552a(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 Physical Security Access Files system
may inform the subject of an investigation of an actual or potential
criminal violation of the existence of that investigation, the nature
and scope of the information and evidence obtained, of the identity of
confidential sources, witnesses, and law enforcement personnel, the
identity of confidential sources, witnesses, lead to the improper
influencing of witnesses, the destruction of evidence, or the
fabrication of testimony; disclose investigative techniques and
procedures; and could provide information to enable the subject to
avoid detection or apprehension. It may be necessary to preclude an
individual subject's access to and amendment of personnel
investigations or information connected to providing protective
services to the President of the United States or other individuals
pursuant to 18 U.S.C. 3056.
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 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. In addition, during the course of
the investigation, the investigator may obtain information which is
incidental to the main purpose of the investigation but which may
relate to matters under the investigative jurisdiction of another
agency. Such information cannot readily be segregated. 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. In the interest of effective law
enforcement, DOI investigators should retain this information, since it
can aid in establishing patterns of criminal activity and can provide
valuable leads for other law enforcement agencies.
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 of this section could disclose investigative
techniques and procedures and cause sources to refrain from giving such
information because of fear of reprisal, or fear of breach of
promise(s) of anonymity and confidentiality. This could compromise
DOI's ability to conduct investigations and to identify, detect and
apprehend 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.
[[Page 7517]]
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, DOI 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 for 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. We
have determined the rule is categorically excluded under 43 CFR
46.210(i) because it is administrative, legal, and technical in nature.
We also have determined the rule does not involve any of the
extraordinary circumstances listed in 43 CFR 46.215 that would require
further analysis under NEPA.
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
--Use lists and tables wherever possible.
List of Subjects in 43 CFR Part 2
Administrative practice and procedure, Confidential information,
Courts, Freedom of Information Act, Privacy Act.
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. Revise Sec. 2.254 to read as follows:
Sec. 2.254 Exemptions.
(a) Criminal law enforcement records exempt under 5 U.S.C.
552a(j)(2). Pursuant to 5 U.S.C. 552a(j)(2) the following systems of
records are exempted from all of the provisions of 5 U.S.C. 552a and
the regulations in this subpart except paragraphs (b), (c)(1) and (2),
(e)(4)(A) through (F), (e)(6), (7), (9), (10), (11) and (12), and (i)
of 5 U.S.C. 552a and the portions of the regulations in this subpart
implementing these paragraphs:
(1) INTERIOR/FWS-20, Investigative Case File System.
(2) INTERIOR/BIA-18, Law Enforcement Services System.
(3) INTERIOR/NPS-19, Law Enforcement Statistical Reporting System.
(4) INTERIOR/OIG-02, Investigative Records.
(5) INTERIOR/DOI-10, Incident Management, Analysis and Reporting
System.
(6) INTERIOR/DOI-50, Insider Threat Program.
(7) [RESERVED]
(b) [RESERVED]
(1) [RESERVED]
(2) [RESERVED]
[[Page 7518]]
(c) Law enforcement records exempt under 5 U.S.C. 552a(k)(2).
Pursuant to 5 U.S.C. 552a(k)(2), the following systems of records are
exempted from paragraphs (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I),
and (f) of 5 U.S.C. 552a and the provisions of the regulations in this
subpart implementing these paragraphs:
(1) Investigative Records, Interior/Office of Inspector General--2.
(2) Permits System, Interior/FWS-21.
(3) Criminal Case Investigation System, Interior/BLM-18.
(4) Civil Trespass Case Investigations, Interior/BLM-19.
(5) Employee Conduct Investigations, Interior/BLM-20.
(6)-(7) [RESERVED]
(8) Employee Financial Irregularities, Interior/NPS-17.
(9) Trespass Cases, Interior/Reclamation-37.
(10) Litigation, Appeal and Case Files System, Interior/Office of
the Solicitor-1 to the extent that it consists of investigatory
material compiled for law enforcement purposes.
(11) Endangered Species Licenses System, Interior/FWS-19.
(12) Investigative Case File, Interior/FWS-20.
(13) Timber Cutting and Trespass Claims Files, Interior/BIA-24.
(14) Debarment and Suspension Program, Interior/DOI-11.
(15) Incident Management, Analysis and Reporting System, Interior/
DOI-10.
(16) Insider Threat Program, Interior/DOI-50.
(17) Indian Arts and Crafts Board, Interior/DOI-24.
(18) [RESERVED]
(19) Physical Security Files, Interior/DOI-46.
(20) [RESERVED]
(21) [RESERVED]
(d) Records maintained in connection with providing protective
services exempt under 5 U.S.C. 552a(k)(3). Pursuant to 5 U.S.C.
552a(k)(3), the following systems of records have been exempted from
paragraphs (c)(3), (d), (e)(1), (e)(4)(G), (H), and (I) and (f) of 5
U.S.C. 552a and the provisions of the regulations in this subpart
implementing these paragraphs:
(1) Physical Security Files, Interior/DOI-46.
(2) [RESERVED]
(e) Investigatory records exempt under 5 U.S.C. 552a(k)(5).
Pursuant to 5 U.S.C. 552a(k)(5), the following systems of records have
been exempted from paragraphs (c)(3), (d), (e)(1), (e)(4)(G), (H), and
(I) and (f) of 5 U.S.C. 552a and the provisions of the regulations in
this subpart implementing these paragraphs:
(1) [RESERVED]
(2) National Research Council Grants Program, Interior/GS-9
(3) Committee Management Files, Interior/Office of the Secretary--
68.
(4) Debarment and Suspension Program, Interior/DOI-11.
(5) Physical Security Files, Interior/DOI-46.
(6) [RESERVED]
(7) [RESERVED]
(8) [RESERVED]
Teri Barnett,
Departmental Privacy Officer, Department of the Interior.
[FR Doc. 2020-00356 Filed 2-7-20; 8:45 am]
BILLING CODE 4334-63-P