[Federal Register Volume 86, Number 154 (Friday, August 13, 2021)]
[Proposed Rules]
[Pages 44642-44644]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-16435]


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 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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  Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 / 
Proposed Rules  

[[Page 44642]]



FEDERAL RETIREMENT THRIFT INVESTMENT BOARD

5 CFR Part 1630


Privacy Act: Proposed Exemptions

AGENCY: Federal Retirement Thrift Investment Board.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In accordance with the Privacy Act of 1974, the Federal 
Retirement Thrift Investment Board (FRTIB) proposes to exempt five 
systems of records from certain requirements of the Act. FRTIB has 
previously published System of Records Notices (SORNs) for these 
systems.

DATES: Comments on this notice of proposed rulemaking must be received 
by September 13, 2021.

ADDRESSES: You may submit written comments to FRTIB through the 
following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the website instructions for submitting comments.
     Fax: 202-942-1676.
     Mail or Hand Delivery: Office of General Counsel, Federal 
Retirement Thrift Investment Board, 77 K Street NE, Suite 1000, 
Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Dharmesh Vashee, General Counsel and 
Senior Agency Official for Privacy, Federal Retirement Thrift 
Investment Board, Office of General Counsel, 77 K Street NE, Suite 
1000, Washington, DC 20002, (202) 942-1600.

SUPPLEMENTARY INFORMATION: FRTIB proposes to revise its Privacy Act 
regulations at 5 CFR part 1630 to exempt five of its systems of 
records, FRTIB-2, FRTIB-13, FRTIB-14, FRTIB-15, and FRTIB-23, from 
certain requirements of the Privacy Act, 5 U.S.C. 552a. The FRTIB is 
promulgating exemptions to the Privacy Act for these five systems of 
records in accordance with subsection (k)(2) and subsection (k)(5).
    Subsection (k)(2) of the Privacy Act authorizes the head of an 
agency to exempt a system of records from the applicable subsections if 
investigatory records are compiled for law enforcement purposes; 
provided, however if an individual is denied any right, privilege, or 
benefit that he or she would otherwise be entitled by Federal law, or 
for which he or she would otherwise be eligible, as a result of the 
maintenance of such material, such material shall be provided to such 
individual, except to the extent that the disclosure of such material 
would reveal the identity of a source who furnished information to the 
Government under an express promise that the identity of the source 
would be held in confidence. Subsection (k)(5) of the Privacy Act 
authorizes the head of an agency to exempt a system of records from the 
applicable subsections if investigatory records are compiled solely for 
the purpose of determining suitability, eligibility, or qualifications 
for Federal civilian employment, military service, Federal contracts, 
or access to classified information, but only to the extent that the 
disclosure of such material would reveal the identity of a source who 
furnished information to the Government under an express promise that 
the identity of the source would be held in confidence.
    Under the Privacy Act, individuals have a right of access to 
information pertaining to them which is contained in a system of 
records. At the same time, the Privacy Act permits certain types of 
systems to be exempt from some Privacy Act requirements. If an agency 
claims an exemption, however, it must issue a Notice of Proposed 
Rulemaking to make clear to the public the reasons why a particular 
exemption is being claimed.
    As indicated in the Agency's accompanying Privacy Act system of 
records notices proposing and modifying these systems of records, these 
five systems of records contain information collected by the Agency in 
the course of carrying out its duties under 5 U.S.C. 8401.
    The FRTIB is promulgating exemptions under subsections (k)(2) and 
(k)(5) for FRTIB-2, Personnel Security Investigation Files. FRTIB-2 
contains information compiled by the Agency in order to document and 
support decisions regarding clearance for access to sensitive FRTIB 
information and the suitability, eligibility, and fitness for service 
of applicants for federal employment and contract positions. FRTIB has 
previously published a SORN for this system in the Federal Register, 85 
FR 43654, 43655 (July 21, 2020). FRTIB's personnel investigations 
records fall under the exemption stated within subsection (k)(2) of the 
Privacy Act because these records may be used to help streamline and 
make more efficient the investigations and adjudications process, and 
may be used to document security violations and actions taken in 
response to such violations. FRTIB's personnel investigations records 
also fall under the exemption stated within subsection (k)(5) of the 
Privacy Act because these records are compiled for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, Federal contracts, or access to 
classified information. FRTIB proposes to exempt eligible records 
contained within FRTIB-2 from the requirements of subsections (c)(3); 
(d); (e)(1); (e)(4)(G), (H), (I); and (f), which require agencies 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. 
Exempting records from this system is necessary and appropriate to 
maintain the integrity of personnel investigations and to ensure that 
FRTIB's efforts to obtain accurate and objective information will be 
successful. To the extent that FRTIB uses investigatory material within 
this system of records as a basis for denying an individual any right, 
privilege, or benefit to which an individual would be entitled in the 
absence of that record, FRTIB will grant that individual access to the 
material except to the extent that access would reveal the identity of 
a source promised confidentiality.
    The FRTIB is promulgating exemptions under subsection (k)(2) for 
FRTIB-13, Fraud and Forgery Records. FRTIB-13 contains information 
compiled by the Agency in the course of carrying out its fiduciary 
duties to detect and prevent fraudulent activity against participant 
accounts. FRTIB has previously published a SORN for this system in the 
Federal Register, 84 FR 12249 (April 1, 2019), and a notice of proposed 
rulemaking for the exemptions, 84 FR 12954 (April 3, 2019). This notice 
of proposed

[[Page 44643]]

rulemaking supersedes the previous notice. FRTIB's fraud and forgery 
records fall under the exemption stated within subsection (k)(2) of the 
Privacy Act because these records are compiled for law enforcement 
purposes. FRTIB proposes to exempt eligible records contained within 
FRTIB-13 from the requirements of subsections (c)(3); (d); (e)(1); 
(e)(4)(G), (H), (I); and (f), which require agencies 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. Exempting 
records from this system is necessary and appropriate to maintain the 
integrity of FRTIB's investigations into allegations of fraud or 
forgery and to ensure that FRTIB's efforts to obtain accurate and 
objective information will be successful. To the extent that FRTIB uses 
investigatory material within this system of records as a basis for 
denying an individual any right, privilege, or benefit to which an 
individual would be entitled in the absence of that record, FRTIB will 
grant that individual access to the material except to the extent that 
access would reveal the identity of a source promised confidentiality.
    The FRTIB is promulgating exemptions under subsection (k)(2) for 
FRTIB-14, Legal Case Files. FRTIB-14 contains information compiled by 
the Agency in the course of its duties to provide legal advice to FRTIB 
personnel and respond appropriately to claims and litigation. FRTIB has 
previously published a SORN for this system in the Federal Register, 85 
FR 43654, 43666 (July 21, 2020). FRTIB's legal case files fall under 
the exemption stated within subsection (k)(2) of the Privacy Act 
because these records may be compiled for law enforcement purposes. 
FRTIB proposes to exempt eligible records contained within FRTIB-14 
from the requirements of subsections (c)(3); (d); (e)(1); (e)(4)(G), 
(H), (I); and (f), which require agencies 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. Exempting records from this 
system is necessary and appropriate to maintain the integrity of 
FRTIB's legal case files and to ensure that FRTIB's efforts to obtain 
accurate and objective information will be successful. To the extent 
that FRTIB uses investigatory material within this system of records as 
a basis for denying an individual any right, privilege, or benefit to 
which an individual would be entitled in the absence of that record, 
FRTIB will grant that individual access to the material except to the 
extent that access would reveal the identity of a source promised 
confidentiality.
    The FRTIB is promulgating exemptions under subsection (k)(2) for 
FRTIB-15, Internal Investigations of Harassment and Hostile Work 
Environment Allegations. FRTIB-15 contains information compiled by the 
Agency in the course of upholding FRTIB's policy to provide for a work 
environment free from all forms of harassment. FRTIB has previously 
published a SORN for this system in the Federal Register, 85 FR 43654, 
43669 (July 21, 2020). FRTIB's internal investigations and hostile work 
environment allegations files fall under the exemption stated within 
subsection (k)(2) of the Privacy Act because these records may be 
compiled for law enforcement purposes. FRTIB proposes to exempt 
eligible records contained within FRTIB-15 from the requirements of 
subsections (c)(3); (d); (e)(1); (e)(4)(G), (H), (I); and (f), which 
require agencies 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. Exempting records from this system is 
necessary and appropriate to maintain the integrity of FRTIB's legal 
case files and to ensure that FRTIB's efforts to obtain accurate and 
objective information will be successful. To the extent that FRTIB uses 
investigatory material within this system of records as a basis for 
denying an individual any right, privilege, or benefit to which an 
individual would be entitled in the absence of that record, FRTIB will 
grant that individual access to the material except to the extent that 
access would reveal the identity of a source promised confidentiality.
    The FRTIB is promulgating exemptions under subsection (k)(2) for 
FRTIB-23, Insider Threat Program Records. FRTIB-23 contains information 
compiled by the Agency in the course of performing insider threat 
program functions. The FRTIB has published a SORN for this system in 
the Federal Register, 86 FR 40564 (July 28, 2021). Insider threat 
program records fall under the exemption stated within subsection 
(k)(2) of the Privacy Act because these records are compiled for law 
enforcement purposes. FRTIB proposes to exempt eligible records 
contained within FRTIB-23 from the requirements of subsections (c)(3); 
(d); (e)(1); (e)(4)(G), (H), (I); and (f), which require agencies 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. 
Exempting records from this system is necessary and appropriate to 
maintain the integrity of FRTIB's investigations into allegations of 
insider threats and to ensure that FRTIB's efforts to obtain accurate 
and objective information will be successful. To the extent that FRTIB 
uses investigatory material within this system of records as a basis 
for denying an individual any right, privilege, or benefit to which an 
individual would be entitled in the absence of that record, FRTIB will 
grant that individual access to the material except to the extent that 
access would reveal the identity of a source promised confidentiality.
    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 
FRTIB determines compliance would not appear to interfere with or 
adversely affect the purpose of this system to investigate and prevent 
insider threats, the applicable exemption may be waived by FRTIB 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, collectively 
referred to herein as access requirements). Providing individuals with 
notification, access, and amendment rights with respect to allegations 
and investigations into personnel investigations, fraud against 
participant accounts, legal case files, internal investigations of 
harassment and hostile work environment allegations, or investigations 
of potential insider threats 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 personal privacy; 
identities of law enforcement personnel; or other sensitive or Privacy 
Act-protected information. Revealing such information to individuals 
could compromise or otherwise impede pending and future law enforcement 
investigations and efforts to protect sensitive information. Revealing 
such information could also violate personal

[[Page 44644]]

privacy. Additionally, revealing this information could enable 
individuals 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 the 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 these systems of records whether 
the information is or will be relevant and necessary to a law 
enforcement investigation. For example, a tip or lead that does not 
initially appear relevant or necessary may prove useful 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 subsections (c) and (d) of 
the Act, as described above. To the extent that subsection (e)(4)(G) 
and (H) are interpreted to require the Agency to promulgate 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 
subsections (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 FRTIB or as part of the Thrift Savings Plan (TSP). 
Further, because records used to complete personnel investigations, 
investigate and prosecute allegations of fraud and forgery against 
participant accounts, pursue legal claims, pursue internal 
investigations of harassment or hostile work environment allegations, 
or investigate and prosecute allegations of insider threats could come 
from any source, it is not possible to know every category in advance 
in order to list them all in FRTIB's accompanying SORN. Some record 
source categories may not be appropriate to make public in the SORN if, 
for example, revealing them could enable 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 
aforementioned 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 FRTIB or 
as part of the TSP.

Regulatory Flexibility Act

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

Paperwork Reduction Act

    I certify that these proposed regulations do not require additional 
reporting under the criteria of the Paperwork Reduction Act.

Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 
632, 653, 1501 1571, the effects of this proposed regulation on state, 
local, and tribal governments and the private sector have been 
assessed. This proposed regulation will not compel the expenditure in 
any one year of $100 million or more by state, local, and tribal 
governments, in the aggregate, or by the private sector. Therefore, a 
statement under Sec.  1532 is not required.

List of Subjects in 5 CFR Part 1630

    Privacy.

Ravindra Deo,
Executive Director, Federal Retirement Thrift Investment Board.

    Accordingly, FRTIB proposes to amend 5 CFR part 1630 as follows:

PART 1630--PRIVACY ACT REGULATIONS

0
1. The authority citation for part 1630 continues to read as follows:

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

0
2. Amend Sec.  1630.15 by revising paragraph (b) to read as follows:


Sec.  1630.15  Exemptions.

* * * * *
    (b) Those designated systems of records which are exempt from the 
requirements of subsections (c)(3); (d); (e)(1); (e)(4)(G), (H), (I); 
and (f) of the Privacy Act, 5 U.S.C. 552a, include FRTIB-2, Personnel 
Security Investigation Files; FRTIB-13, Fraud and Forgery Records; 
FRTIB-14, FRTIB Legal Case Files; FRTIB-15, Internal Investigations of 
Harassment and Hostile Work Environment Allegations; and FRTIB-23, 
Insider Threat Program Records.
* * * * *
[FR Doc. 2021-16435 Filed 8-12-21; 8:45 am]
BILLING CODE 6760-01-P