[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]


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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.

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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