[Federal Register Volume 87, Number 171 (Tuesday, September 6, 2022)]
[Proposed Rules]
[Pages 54442-54445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19078]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 2
[DOI-2022-0007; 223D0102DM, DLSN00000.000000, DS65100000, DX.65101]
RIN 1090-AB16
Privacy Act Regulations; Exemption for the Personnel Security
Program Files System
AGENCY: Office of the Secretary, Interior.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior (DOI) is proposing to amend its
regulations to exempt certain records in the INTERIOR/DOI-45, Personnel
Security Program Files, system of records from one or more provisions
of the Privacy Act of 1974 because of criminal, civil, and
administrative law enforcement requirements.
DATES: Submit comments on or before November 7, 2022.
ADDRESSES: You may submit comments, identified by docket number [DOI-
2022-0007] or [Regulatory Information Number (RIN) 1090-AB16], 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-2022-0007] or RIN 1090-AB16 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-2022-0007] or RIN 1090-AB16 for this rulemaking.
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).
Individuals may request access to records containing information
about themselves under the Privacy Act, 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 DOI Office of Law Enforcement and Security (OLES) maintains the
INTERIOR/DOI-45, Personnel Security Program Files, system of records.
This system supports the DOI bureau and office Personnel Security
Program functions to determine suitability, eligibility, and fitness
for service of applicants for Federal employment and contract positions
who require access to Departmental facilities and information systems
and networks. The system also helps OLES manage a National Security
Program to document and support decisions regarding clearance access to
classified information and implement provisions that apply to Federal
employees and contractors who access classified information or
materials and participate in classified activities that impact national
security, and ensure the safety, storage of classified information and
security of Departmental facilities, information systems and networks,
occupants, and users.
The Personnel Security Program Files system will contain records
created and managed by DOI bureaus and offices to support personnel
security activities and document evaluations and decisions regarding
suitability, eligibility, and fitness for service of applicants for
Federal employment and contract positions to the extent necessary to
manage secure access to Departmental facilities, information systems
and networks, and to manage access to classified information and
reciprocity. These records may include information about individuals
related to possible violations of Federal laws and
[[Page 54443]]
regulations, potential incidents, investigations, and criminal
activity. The system notice for INTERIOR/DOI-45, Personnel Security
Program Files, system of records was last published in the Federal
Register at 72 FR 11036 (March 12, 2007), modification published at 86
FR 50156 (September 7, 2021). An updated system of records notice was
published elsewhere in the Federal Register denoting updates to the
modified system of records for INTERIOR/DOI-45, Personnel Security
Program Files.
Under 5 U.S.C. 552a(k), the head of a Federal agency may promulgate
rules to exempt a system of records from certain provisions of the
Privacy Act. In this notice of proposed rulemaking, DOI is proposing to
exempt portions of the system from certain provisions of the Privacy
Act pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), (k)(5) and (k)(6)
due to criminal, civil, and administrative law enforcement
requirements. DOI is proposing to revise the Privacy Act regulations at
43 CFR 2.254 to add a new paragraph (f) for records maintained in
connection with testing and examination material that are exempt under
5 U.S.C. 552a(k)(6) and to claim additional exemptions under the
Privacy Act pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), and (k)(5)
as described in this document.
Because this system of records contains material that support
activities related to investigations, adjudication, continuous vetting,
and national security purposes under the provisions of 5 U.S.C.
552a(k)(1), (k)(2), (k)(3), (k)(5) and (k)(6), DOI proposes to exempt
portions of the Personnel Security Program Files system from one or
more of the following provisions: 5 U.S.C. 552a(c)(3), (c)(4), (d),
(e)(1) through (e)(3), (e)(4)(G) through (e)(4)(I), (e)(5), (e)(8),
(f), and (g). Where a release would not interfere with or adversely
affect investigations, reveal investigatory material compiled for law
enforcement purposes, reveal 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, or affect national 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. Personnel investigations and vetting
records may contain classified information or investigatory material
compiled for law enforcement purposes other than material within the
scope of 5 U.S.C. 552a(j)(2). Release of accounting of disclosures
would alert the subjects of an investigation to the existence of the
investigation, law enforcement activity or counterintelligence
investigation, and the fact that they are subjects of the
investigation, or could disclose classified or confidential information
that could be detrimental to national security. The release of such
information to the subjects of an investigation would provide them with
significant information concerning the nature and scope of an
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(c)(4); (d); (e)(4)(G) and (e)(4)(H); (f); and (g).
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.
Personnel investigation and vetting records may contain information
classified pursuant to Executive Order, investigatory material compiled
for law enforcement purposes other than material within the scope of 5
U.S.C. 552a(j)(2), information pertaining to protective services
pursuant to 18 U.S.C. 3056, 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, or testing and examination
material used to determine individual qualifications. Granting access
to these records in the Personnel Security Program Files system could
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, and
could provide information to enable the subject to avoid detection or
apprehension. Granting access to such information could seriously
impede or compromise an investigation; endanger the physical safety of
confidential sources, witnesses, and law enforcement personnel, as well
as their families; lead to the improper influencing of witnesses, the
destruction of evidence, or the fabrication of testimony; and disclose
investigative techniques and procedures. In addition, granting access
to such information could disclose classified, security-sensitive, or
confidential information that impact national security or could
constitute an unwarranted invasion of the personal privacy of others.
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 authorized vetting purposes because it
is not always possible to determine the relevance or necessity of
specific information in the early stages of an investigation or
adjudication. Relevance and necessity are often questions of judgment
and timing, and it is only after information is evaluated that the
relevance and necessity of such information can be established for an
investigation or adjudication. In addition, during the course of an
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.
4. 5 U.S.C. 552a(e)(2). This section requires the agency to collect
information directly from the individual to the greatest extent
practical when the information may result in an adverse determination.
During a background investigation or vetting process, it is not always
possible or appropriate to collect information from the individual who
is the subject of the investigation. The application of this provision
could impair investigations and vetting activities by the Department
when making suitability, eligibility, fitness, and credentialing
determinations. In certain circumstances, the subject of an
investigation cannot be required to provide information to
investigators, and information must be collected from other sources.
Furthermore, it is often necessary to collect information from sources
other than the subject of the investigation to verify the accuracy of
the evidence collected.
5. 5 U.S.C. 552a(e)(3). This section requires an agency to inform
each person whom it asks to supply information, on a form that can be
retained by the person, of the authority which the information is
sought and whether disclosure is mandatory or voluntary; of the
principal purposes for
[[Page 54444]]
which the information is intended to be used; of the routine uses which
may be made of the information; and the effects on the person, if any,
of not providing all or any part of the requested information. The
application of this provision could provide the subject of an
investigation with substantial information about the nature and scope
of that investigation, could provide information to enable the subject
to avoid detection or apprehension, seriously impede or compromise an
investigation, or the fabrication of testimony, and disclose
investigative techniques and procedures.
6. 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 provision could provide the subject of
an investigation with substantial information about the nature and
scope of that investigation, could provide information to enable the
subject to avoid detection or apprehension, seriously impede or
compromise an investigation, or the fabrication of testimony, and
disclose investigative techniques and procedures. Additionally, the
application of this section could 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.
7. 5 U.S.C. 552a(e)(5). This section requires an agency to maintain
its records with such accuracy, relevance, timeliness, and completeness
as is reasonably necessary to assure fairness to the individual in
making any determination about the individual. In collecting
information for investigations, vetting, adjudications, or law
enforcement purposes, it is not possible to determine in advance what
information is accurate, relevant, timely, and complete. Material that
may seem unrelated, irrelevant, or incomplete when collected may take
on added meaning or significance as the investigation progresses. The
application of this provision could impair investigations and
authorized vetting because it is not always possible to determine
accuracy, timeliness or completeness of specific information in the
early stages of an investigation or adjudication. It is only after
information is evaluated that such information can be established as
accurate, timely or complete for an investigation or adjudication. The
application of this provision during an investigation or vetting
process would impose an impracticable administrative burden on the
agency.
8. 5 U.S.C. 552a(e)(8). This section requires an agency to make
reasonable efforts to serve notice on an individual when any record on
the individual is made available to any person under compulsory legal
process when that process becomes a matter of public record. Complying
with this provision could prematurely reveal an ongoing criminal
investigation to the subject of the investigation.
Procedural Requirements
1. Regulatory Planning and Review (E.O. 12866 and E.O. 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 proposed rule is not significant.
Executive Order 13563 reaffirms the principles of Executive Order
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. Executive Order 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. We have developed this
rule in a manner consistent with these requirements.
2. Regulatory Flexibility Act
The Department of the Interior 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.,
as amended by the Small Business Regulatory Enforcement Fairness Act of
1996 (Pub. L. 104-221)). This proposed 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. This proposed rule is not a major
rule under 5 U.S.C. 804(2). This proposed 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.
3. Unfunded Mandates Reform Act
This proposed 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 proposed rule does not
have a significant or unique effect on State, local, or tribal
governments or the private sector. This proposed 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.
4. Takings (E.O. 12630)
In accordance with Executive Order 12630, the proposed rule does
not have significant takings implications. This proposed rule makes
only minor changes to 43 CFR part 2. A takings implication assessment
is not required.
5. Federalism (E.O. 13132)
In accordance with Executive Order 13132, this proposed rule does
not have any federalism implications to warrant the preparation of a
Federalism Assessment. The proposed 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.
6. Civil Justice Reform (E.O. 12988)
This proposed rule complies with the requirements of Executive
Order 12988. Specifically, this rule:
(a) Does not unduly burden the Federal 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.
7. Consultation With Indian Tribes (E.O. 13175)
In accordance with Executive Order 13175, the Department of the
Interior
[[Page 54445]]
has evaluated this proposed rule and determined that it would have no
substantial effects on Federally Recognized Indian Tribes.
8. Paperwork Reduction Act
This proposed rule does not require an information collection from
10 or more parties and a submission under the Paperwork Reduction Act
(44 U.S.C. 3501, et seq.) is not required.
9. National Environmental Policy Act
This proposed 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), 42 U.S.C. 4321, et seq., is not required because the proposed
rule is covered by a categorical exclusion. We have determined the
proposed rule is categorically excluded under 43 CFR 46.210(i) because
it is administrative, legal, and technical in nature. We also have
determined the proposed rule does not involve any of the extraordinary
circumstances listed in 43 CFR 46.215 that would require further
analysis under NEPA.
10. Effects on Energy Supply (E.O. 13211)
This proposed rule is not a significant energy action under the
definition in Executive Order 13211. A Statement of Energy Effects is
not required.
11. Clarity of This Regulation
We are required by Executive Order 12866 and 12988, the Plain
Writing Act of 2010 (Pub. L. 111-274), and the Presidential Memorandum
of June 1, 1998, to write all proposed rules in plain language. This
means each proposed 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 table 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. Amend Sec. 2.254 by adding new paragraphs (b)(2), (c)(20), (d)(2),
(e)(7), and add new paragraph (f) to read as follows:
Sec. 2.254 Exemptions.
* * * * *
(b) Classified records exempt under 5 U.S.C. 552a(k)(1).
* * * * *
(2) INTERIOR/DOI-45, Personnel Security Program Files.
(c) Law enforcement records exempt under 5 U.S.C. 552a(k)(2).
* * * * *
(20) INTERIOR/DOI-45, Personnel Security Program Files.
(d) Records maintained in connections with providing protective
service exempt under 5 U.S.C. 552a(k)(3).
* * * * *
(2) INTERIOR/DOI-45, Personnel Security Program Files.
(e) Investigatory records exempt under 5 U.S.C. 552a(k)(5).
* * * * *
(7) INTERIOR/DOI-45, Personnel Security Program Files.
(f) Records maintained on testing and examination material exempt
under 5 U.S.C. 552a(k)(6). Pursuant to U.S.C. 552a(k)(6), 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) INTERIOR/DOI-45, Personnel Security Program Files.
* * * * *
Teri Barnett,
Departmental Privacy Officer, Department of the Interior.
[FR Doc. 2022-19078 Filed 9-2-22; 8:45 am]
BILLING CODE 4334-63-P