[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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