[Federal Register Volume 88, Number 133 (Thursday, July 13, 2023)]
[Proposed Rules]
[Pages 44748-44750]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-14881]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 2

[DOI-2023-0008; 234D0104IG, DG10100000, DIG000000.000000]
RIN 1090-AB27


Privacy Act Regulations; Exemption for Investigative Records

AGENCY: Office of Inspector General, Interior.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Department of the Interior (DOI) is proposing to amend its 
regulations to exempt certain records in the INTERIOR/OIG-02, 
Investigative Records, 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 September 11, 2023.

ADDRESSES: You may submit comments, identified by docket number [DOI-
2023-0008] or Regulatory Information Number (RIN) Number 1090-AB27, by 
any of the following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the instructions for sending comments.
     Email: [email protected]. Include docket number 
[DOI-2023-0008] or RIN 1090-AB27 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-2023-0008] or RIN 1090-AB27 for this rulemaking. 
All comments received will be posted without change to https://www.regulations.gov, including any personal information provided.
    Docket: For access to the docket to read background documents or 
comments received, go to https://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 pursuant to 5 U.S.C. 
552a(j) and (k).
    The Office of Inspector General (OIG) maintains the INTERIOR/OIG-
02, Investigative Records, system of records to help facilitate the 
OIG's various responsibilities under the Inspector General Act of 1978, 
as amended. The OIG is statutorily directed to conduct and supervise 
investigations relating to programs and operations of the DOI, to 
promote economy, efficiency, and effectiveness in the administration of 
programs and operations, and to prevent and detect fraud, waste, and 
abuse in such programs and operations. Accordingly, records in the 
system are used during the course of conducting investigations on 
individuals and entities suspected of misconduct, fraud, waste, and 
abuse, other illegal or unethical acts, and in conducting related 
criminal prosecutions, civil proceedings, and administrative actions. 
The system also contains records of complaints, requests to 
investigate, and administrative referrals; records of case initiation; 
reports, correspondence, notes and memoranda generated by OIG regarding 
investigations; and records on complainants, subjects, and victims.
    The system notice for INTERIOR/OIG-02, Investigative Records, 
system of records was previously published in the Federal Register at 
76 FR 60519 (September 29, 2011), 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 
INTERIOR/OIG-02, Investigative Records, system of records.
    Under 5 U.S.C. 552a(j) and (k), the head of a Federal agency may 
promulgate rules to exempt a system of records from certain provisions 
of the Privacy Act. The INTERIOR/OIG-02, Investigative Records, system 
contains records related to law enforcement investigations that are 
exempt from provisions of the Privacy Act, 5 U.S.C. 552a(j) and (k). 
The DOI previously promulgated regulations at 43 CFR 2.254 to exempt 
records in this system from all provisions of the Privacy Act except 
subsections (b), (c)(1) and (2), (e)(4)(A) through (F), (e)(6), (7), 
(9), (10), and (11), and (i) pursuant to 5 U.S.C. 552a(j)(2); and to 
exempt records from subsections (c)(3), (d), (e)(1), (e)(4)(G), (H), 
and (I), and (f) of the Privacy Act pursuant to 5 U.S.C. 552a(k)(2).
    In this notice of proposed rulemaking (NPRM), DOI is proposing to 
claim additional exemptions from subsections (c)(3), (d), (e)(1), 
(e)(4)(G), (H), and (I), and (f) of the Privacy Act pursuant to 5 
U.S.C. 552a(k)(1), (k)(3), and (k)(5) because this system of records 
contains material that support activities related to investigations. 
The OIG may waive exemptions on a case-by-case basis where a release 
would not interfere with or reveal investigatory material compiled for 
law enforcement purposes, or reveal records on suitability,

[[Page 44749]]

eligibility, or qualifications for Federal employment, military 
service, Federal contracts, or access to classified information, or 
compromise confidential sources. 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. Records in this system may contain 
investigatory records and 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 investigation, and the fact that they are subjects of the 
investigation, or could disclose 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(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. 
Records in this system may contain investigatory material compiled for 
law enforcement purposes other than material within the scope of 5 
U.S.C. 552a(j)(2). Granting access to these records in the 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 confidential information that could 
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 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 information is 
evaluated that the relevance and necessity of such information can be 
established for an investigation. 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)(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 
OIG's ability to conduct investigations and to identify, detect and 
apprehend violators.

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. 1501 et seq.) is 
not required.

4. Takings (E.O. 12630)

    In accordance with Executive Order 12630, the proposed rule does 
not have

[[Page 44750]]

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 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 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, the Social Security Number Fraud Prevention Act 
of 2017, Pub. L. 115-59, September 15, 2017.

0
2. Amend Sec.  2.254 by adding paragraphs (b)(3), (d)(3), and (e)(8) to 
read as follows:


Sec.  2.254  Exemptions.

* * * * *
    (b) * * *
    (3) INTERIOR/OIG-02, Investigative Records.
    (d) * * *
    (3) INTERIOR/OIG-02, Investigative Records.
    (e) * * *
    (8) INTERIOR/OIG-02, Investigative Records.
* * * * *

Teri Barnett,
Departmental Privacy Officer, Department of the Interior.
[FR Doc. 2023-14881 Filed 7-12-23; 8:45 am]
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