[Federal Register Volume 89, Number 7 (Wednesday, January 10, 2024)]
[Proposed Rules]
[Pages 1505-1508]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-00318]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF THE INTERIOR
Office of the Secretary
43 CFR Part 2
[DOI-2023-0027; DS65100000 DWSN00000.000000 24XD4523WS DP.65102]
RIN 1090-AB28
Privacy Act Regulations; Exemption for the Law Enforcement
Records Management System
AGENCY: Office of the Secretary, Interior.
ACTION: Notice of proposed rulemaking.
-----------------------------------------------------------------------
SUMMARY: The Department of the Interior (DOI, Department) is proposing
to amend its regulations to exempt certain records in the INTERIOR/DOI-
10, DOI Law Enforcement Records Management System (LE RMS), 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 March 11, 2024.
ADDRESSES: You may submit comments, identified by docket number [DOI-
2023-0027] or Regulatory Information Number (RIN) Number 1090-AB28, 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-2023-0027] or RIN 1090-AB28 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-2023-0027] or RIN 1090-AB28 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. In
compliance with the Providing Accountability Through Transparency Act
of 2023, the plain language summary of the proposal is available on
Regulations.gov in the docket for this rulemaking.
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 of 1974, 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 DOI Office of Law Enforcement and Security (OLES) maintains the
INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE
RMS), system of records to help DOI and its law enforcement bureaus and
offices carry out responsibilities to prevent, detect, and investigate
known and suspected criminal activity; detain and apprehend those
committing crimes on DOI properties or Tribal reservations; manage
investigations and law enforcement activities including use of force,
critical incidents, property damage claims, traffic accidents, and
domestic issues; and prevent visitor accidents or injuries on DOI
properties or Tribal reservations. The system also contains statements
and records of complaints, reports, correspondence from or about
complainants, subjects, and victims of law enforcement investigations.
Accordingly, records in the system are used during investigations and
law enforcement activities and related criminal
[[Page 1506]]
prosecutions, civil proceedings, and administrative actions.
A system of records notice for INTERIOR/DOI-10, Incident
Management, Analysis and Reporting System, was previously published in
the Federal Register at 79 FR 31974 (June 3, 2014); modification
published at 86 FR 50156 (September 7, 2021). DOI published an updated
notice elsewhere in the Federal Register concurrently with this notice
of proposed rulemaking (NPRM) to update the title of the system to
INTERIOR/DOI-10, DOI Law Enforcement Records Management System (LE RMS)
and denote changes to the modified system.
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 of 1974. The INTERIOR/DOI-10, DOI Law Enforcement
Records Management System (LE RMS), system of records contains law
enforcement records and investigatory material that are exempt from
provisions of the Privacy Act of 1974 under 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 NPRM, DOI is proposing to amend its existing exemptions
under 43 CFR 2.254 subsections (a) and (c) to reflect the new title of
the system, INTERIOR/DOI-10, DOI Law Enforcement Records Management
System (LE RMS), and 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), (k)(5), and (k)(6) because
this system of records contains material that support law enforcement
activities and investigations. DOI 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, eligibility, or qualifications for Federal
employment, military service, Federal contracts, or access to
classified information, or compromise confidential sources. Exemptions
from these 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
DOI's ability to conduct investigations and to identify, detect and
apprehend violators.
Procedural Requirements
1. Regulatory Planning and Review (Executive Orders 12866, 13563, and
14094)
Executive Order (E.O.) 14094 reaffirms the principles of E.O. 12866
and E.O. 13563 and states that regulatory analysis should facilitate
agency efforts to develop regulations that serve the public interest,
advance statutory objectives, and are consistent with E.O. 12866, E.O.
13563, and the Presidential Memorandum of January 20, 2021 (Modernizing
Regulatory Review). Regulatory analysis, as practicable and
appropriate, shall recognize distributive impacts and equity, to the
extent permitted by law. 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
[[Page 1507]]
this rule in a manner consistent with these requirements.
E.O. 12866, as reaffirmed by E.O. 13563 and E.O. 14094, provides
that the Office of Information and Regulatory Affairs (OIRA) in the
Office of Management and Budget will review all significant rules. OIRA
has determined that this rule is not significant.
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 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:
0
a. Revising paragraph (a)(5);
0
b. Adding paragraph (b)(4);
0
c. Revising paragraph (c)(15); and
0
d. Adding paragraphs (d)(4), (e)(9), and (f)(2).
The additions and revisions read as follows:
Sec. 2.254 Exemptions.
* * * * *
(a) * * *
(5) INTERIOR/DOI-10, DOI Law Enforcement Records Management System
(LE RMS).
(b) * * *
(4) INTERIOR/DOI-10, DOI Law Enforcement Records Management System
(LE RMS).
(c) * * *
(15) INTERIOR/DOI-10, DOI Law Enforcement Records Management System
(LE RMS).
(d) * * *
[[Page 1508]]
(4) INTERIOR/DOI-10, DOI Law Enforcement Records Management System
(LE RMS).
(e) * * *
(9) INTERIOR/DOI-10, DOI Law Enforcement Records Management System
(LE RMS).
(f) * * *
(2) INTERIOR/DOI-10, DOI Law Enforcement Records Management System
(LE RMS).
* * * * *
Teri Barnett,
Departmental Privacy Officer, Department of the Interior.
[FR Doc. 2024-00318 Filed 1-9-24; 8:45 am]
BILLING CODE 4334-63-P