[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Proposed Rules]
[Pages 7307-7315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01684]


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COMMODITY FUTURES TRADING COMMISSION

17 CFR Part 146

RIN 3038-AF22


Privacy Act Regulations

AGENCY: Commodity Futures Trading Commission.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Commodity Futures Trading Commission (CFTC or Commission) 
proposes to update its regulations regarding exemptions for certain 
systems of records from one or more provisions of the Privacy Act of 
1974 (Privacy Act). The Commission proposes to revise these regulations 
to specifically identify the systems of records currently included in 
the regulation that the Commission is exempting, additional systems of 
records that the Commission intends to exempt, and the sections of the 
Privacy Act from which the Commission is exempting each system of 
records, and the reasons therefor, in order to better conform to the 
requirements of the Privacy Act and the guidance contained in Office of 
Management and Budget (OMB) Circular A-108, Federal Agency 
Responsibilities for Review, Reporting, and Publication Under the 
Privacy Act (OMB A-108). The Commission also proposes to reorganize the 
regulations for ease of reference.

[[Page 7308]]


DATES: Please submit comments on or before March 4, 2024.

ADDRESSES: You may submit comments identified as pertaining to 
``Privacy Act Regulations'' by any of the following methods:
     CFTC Comments Portal: https://comments.cftc.gov. Select 
the ``Submit Comments'' link for this rulemaking and follow the 
instructions on the Public Comment Form.
     Mail: Send to Christopher Kirkpatrick, Secretary of the 
Commission, Commodity Futures Trading Commission, Three Lafayette 
Centre, 1155 21st Street NW, Washington, DC 20581.
     Hand Delivery/Courier: Follow the same instructions as for 
Mail, above.
    Please submit your comments using only one of these methods. To 
avoid possible delays with mail or in-person deliveries, submissions 
through the CFTC Comments Portal are encouraged.
    All comments must be submitted in English, or if not, accompanied 
by an English translation. Comments will be posted as received to 
www.cftc.gov. You should submit only information that you wish to make 
available publicly. If you wish the Commission to consider information 
that may be exempt from disclosure under the Freedom of Information Act 
(FOIA), 5 U.S.C. 552, a petition for confidential treatment of the 
exempt information may be submitted according to the procedures 
established in the Commission's regulations at 17 CFR 145.9.
    The Commission reserves the right, but shall have no obligation, to 
review, pre-screen, filter, redact, refuse, or remove any or all of a 
submission from www.cftc.gov that it may deem to be inappropriate for 
publication, such as obscene language. All submissions that have been 
redacted or removed that contain comments on the merits of the notice 
will be retained in the comment file and will be considered as required 
under the Administrative Procedure Act (APA), and may be accessible 
under FOIA.

FOR FURTHER INFORMATION CONTACT: Kellie Cosgrove Riley, Chief Privacy 
Officer, [email protected], 202-418-5610, Office of the General Counsel, 
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st 
Street NW, Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

I. Background

A. The Privacy Act

    The Privacy Act of 1974 \1\ establishes a code of fair information 
practice principles that govern Federal agencies' collection, 
maintenance, use, and dissemination of an individual's personal 
information. The Privacy Act applies to information that is maintained 
in a ``system of records,'' defined as a group of any records under the 
control of an agency from which information is retrieved by the name of 
the individual or by some identifying number, symbol, or other 
identifying particular assigned to the individual.\2\
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    \1\ 5 U.S.C. 552a.
    \2\ 5 U.S.C. 552a(a)(5).
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    In addition to establishing a code of fair information practice 
principles, the Privacy Act restricts disclosure of records containing 
personal information that an agency maintains.\3\ The Privacy Act also 
grants individuals an increased right of access to records maintained 
about themselves as well as the right to request amendment of those 
records upon a showing that they are not accurate, relevant, timely, or 
complete.\4\
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    \3\ 5 U.S.C. 552a(b).
    \4\ 5 U.S.C. 552a(d).
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B. Privacy Act Exemptions

    The Privacy Act permits agencies, where certain requirements are 
met and subject to limitations set forth in the Privacy Act, to 
specifically exempt systems of records from certain provisions of the 
Privacy Act, mainly pertaining to the Privacy Act's provisions 
permitting individuals to access and request amendment of their 
records.\5\ In order to claim an exemption, however, the agency must 
engage in a rulemaking process pursuant to the APA \6\ and make clear 
to the public why particular exemptions are being invoked.\7\
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    \5\ 5 U.S.C. 552a(j) and (k).
    \6\ 5 U.S.C. 553.
    \7\ 5 U.S.C. 552a(j) and (k).
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    Part 146 of the Commission's regulations,\8\ entitled ``Records 
Maintained on Individuals,'' contains the rules of the Commission 
implementing the Privacy Act. Commission regulations Sec. Sec.  146.12 
and 146.13 (together, Privacy Act regulations) currently assert 
exemptions for certain of the Commission's systems of records that 
contain records related to the Commission's investigatory mission and 
personnel security obligations. After reviewing those regulations, the 
Commission has preliminarily determined that the current Privacy Act 
regulations do not include all of the systems of records for which the 
Commission would, in fact, assert exemptions, and those systems of 
records that are currently referenced are not clearly identified with 
each system of records' number and accurate title. The Commission has 
also preliminarily determined to add more specificity regarding the 
rationale for exempting each of the systems of records in order to 
better demonstrate the Commission's compliance with subsections (j) and 
(k) of the Privacy Act \9\ and the corresponding guidance in OMB 
Circular A-108.\10\ OMB A-108, issued in 2016, provides that, at 
minimum, an agency's Privacy Act exemption regulations shall include 
the specific name of any systems of records that will be exempt 
pursuant to the regulations, the specific provisions of the Privacy Act 
from which the systems of records will be exempt and the reasons 
therefor, and an explanation of why the exemption is necessary and 
appropriate.\11\ Accordingly, the Commission proposes to replace 
current Sec.  146.12 of the Commission's regulations with a more 
detailed provision that would more specifically identify all of the 
systems of records it proposes to exempt, the specific provisions of 
the Privacy Act from which each system of records is being exempted, 
and the reasons why the Commission is adopting those exemptions. 
Moreover, the Commission has preliminarily concluded that a separate 
Privacy Act regulation Sec.  146.13 for exemptions taken for an Office 
of the Inspector General (OIG) system of records is not required by the 
Privacy Act or OMB guidance. Accordingly, the Commission proposes to 
remove current Commission regulation Sec.  146.13 and add the OIG 
exemptions to proposed Commission regulation Sec.  146.12, with 
revisions to the content as explained below.
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    \8\ 17 CFR 146.
    \9\ 5 U.S.C. 552a(j) and (k).
    \10\ OMB A-108, available at https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A108/omb_circular_a-108.pdf, at page 25.
    \11\ OMB A-108 at page 25.
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C. Specific Exempted Systems of Records

1. CFTC-1 Enforcement Matter Register and Matter Indices (CFTC-1)
    CFTC-1 contains an index and registry of enforcement 
investigations. This system of records is not currently identified in 
Commission regulation Sec.  146.12 as a system of records that the 
Commission has exempted. The Commission is proposing to exempt this 
system of records because the records

[[Page 7309]]

are compiled for law enforcement purposes and must be protected from 
disclosure in order to maintain the integrity of the investigative 
process and not provide to any individual an opportunity to access 
records and compromise that process, such as through the destruction of 
evidence, interference with witnesses, or otherwise. In addition, the 
Commission is proposing to exempt this system of records in order to 
keep confidential the identity of sources who provided information to 
the Commission during the course of the investigation under an express 
promise that their identities would remain confidential. If an 
individual can access the identities of confidential sources, those 
sources may be unwilling to provide information that the Commission 
needs for its law enforcement activities. Specifically, the Commission 
is proposing to exempt CFTC-1, pursuant to subsection (k)(2) of the 
Privacy Act \12\ and subject to the requirements and limitations set 
forth therein, from the following provisions of the Privacy Act: 5 
U.S.C. 552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), 
and (I); and (f).
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    \12\ 5 U.S.C. 552a(k)(2).
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Request for Comment
    The Commission requests comment on the justification for and scope 
of the proposed CFTC-1 exemptions.
2. CFTC-10 Investigatory Records (CFTC-10)
    CFTC-10 contains records compiled for law enforcement purposes, 
including records developed during an investigation of violations or 
potential violations of the Commodity Exchange Act.\13\ This system of 
records is included in the current Commission regulation Sec.  146.12 
but is identified as ``Exempted Investigatory Records'' and the 
exemptions identified in the current regulation lack the specificity 
that the Commission is proposing to include in new regulation Sec.  
146.12. The Commission is proposing to identify this system of records 
by its proper title and number and set forth the specific reasons for 
which it is being exempted from particular provisions of the Privacy 
Act. To that end, the Commission is proposing to explain in revised 
Commission regulation Sec.  146.12 that this system of records is being 
exempted because the records must be protected from disclosure in order 
to maintain the integrity of the investigative process and not provide 
an individual an opportunity to access records and compromise that 
process, such as through the destruction of evidence, interference with 
witnesses, or otherwise. In addition, the Commission is proposing to 
exempt this system of records in order to keep confidential the 
identity of sources who provided information to the Commission during 
the course of the investigation under an express promise that their 
identities would remain confidential. If an individual can access the 
identities of confidential sources, those sources may be unwilling to 
provide information that the Commission needs for its law enforcement 
activities. Specifically, the Commission is proposing to exempt CFTC-
10, pursuant to subsection (k)(2) of the Privacy Act \14\ and subject 
to the requirements and limitations set forth therein, from the 
following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1), 
(2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); and (f).
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    \13\ 7 U.S.C. 1 et seq.
    \14\ 5 U.S.C. 552a(k)(2).
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Request for Comment
    The Commission requests comment on the justification for and scope 
of the CFTC-10 exemptions.
3. CFTC-12 National Futures Association (NFA) Applications Suite System 
(CFTC-12)
    CFTC-12 contains records held by NFA on behalf of the Commission by 
delegated authority to support the Commission's registration and other 
regulatory authority. These records include records pertaining to the 
fitness of individuals to be registered with the Commission and engage 
in business activities that are subject to the Commission's 
jurisdiction and records pertaining to disciplinary or other adverse 
action investigated or taken with respect to individual registrants. 
This system of records is not currently identified in Commission 
regulation Sec.  146.12 as a system of records that the Commission has 
exempted. The Commission is proposing to exempt this system of records 
because to the extent the records pertaining to individuals that NFA 
holds on behalf of the Commission are investigatory records compiled 
for law enforcement purposes, they must be protected from disclosure in 
order to maintain the integrity of the investigative process and not 
provide to any individual an opportunity to access records and 
compromise that process, such as through the destruction of evidence, 
interference with witnesses, or otherwise. In addition, the Commission 
is proposing to exempt this system of records in order to keep 
confidential the identity of sources who provided information to NFA 
acting on behalf of the Commission during the course of the 
investigation under an express promise that their identities would 
remain confidential. If an individual can access the identities of 
confidential sources, those sources may be unwilling to provide 
information that the Commission needs for its law enforcement 
activities. Specifically, the Commission is proposing to exempt CFTC-
12, pursuant to subsection (k)(2) of the Privacy Act \15\ and subject 
to the requirements and limitations set forth therein, from the 
following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1), 
(2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); and (f).
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    \15\ 5 U.S.C. 552a(k)(2).
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Request for Comment
    The Commission requests comment on the justification for and scope 
of the CFTC-12 exemptions.
4. CFTC-31 Closed Commission Meetings (CFTC-31)
    CFTC-31 contains records about individuals who are the subject of 
discussion at closed Commission meetings, including those who are the 
subject of investigations or who are being considered for employment. 
This system of records is included in the current Commission regulation 
Sec.  146.12 but identified as ``Exempted Closed Commission Meetings'' 
and the exemptions identified in the current regulation lack the 
specificity that the Commission is proposing to include in new 
regulation Sec.  146.12. The Commission is proposing to identify this 
system of records by its proper title and number and to set forth the 
specific reasons for which it is being exempted from particular 
provisions of the Privacy Act. To that end, to the extent the records 
in this system of records pertain to law enforcement investigations, 
the Commission is proposing to exempt this system of records because 
the records must be protected from disclosure in order to maintain the 
integrity of the investigative process and not to provide to any 
individual an opportunity to compromise that process, such as through 
the destruction of evidence, interference with witnesses, or otherwise. 
In addition, the Commission is proposing to exempt this system of 
records in order to keep confidential the identity of sources who 
provided information to the Commission during the course of the 
investigation under an express promise that their identities would 
remain confidential. If an individual can access the identities of 
confidential sources, those sources may be unwilling to provide 
information that

[[Page 7310]]

the Commission needs for its law enforcement activities. Finally, to 
the extent records in this system of records are compiled solely for 
the purpose of determining the suitability, eligibility, or 
qualifications of an individual who is being considered for employment 
with the Commission, the Commission is proposing to exempt this system 
of records where the disclosure of records would reveal the identity of 
somebody who provided information in the context of the Commission's 
determination and who had expressly requested that their identity 
remain confidential. The Commission has preliminarily determined that 
such an exemption is necessary in order to obtain information relevant 
to its eligibility determinations. Accordingly, the Commission is 
proposing to exempt CFTC-31, pursuant to subsections (k)(2) and (k)(5) 
of the Privacy Act \16\ and subject to the requirements and limitations 
set forth therein, from the following provisions of the Privacy Act: 5 
U.S.C. 552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), 
and (I); and (f).
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    \16\ 5 U.S.C. 552a(k)(2) and (k)(5), respectively.
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Request for Comment
    The Commission requests comment on the justification for and scope 
of the CFTC-31 exemptions.
5. CFTC-32 Office of the Inspector General Investigative Files (CFTC-
32)
    CFTC-32 contains records relevant to criminal and civil 
investigations conducted by the Office of the Inspector General (OIG). 
This system of records is included in the current Commission regulation 
Sec.  146.13 with exemptions promulgated pursuant to subsections (j)(2) 
and (k)(2) of the Privacy Act, the former for records related to the 
OIG's criminal law enforcement activities and the latter for 
investigatory records compiled for law enforcement purposes not within 
the scope of subsection (j)(2). The Commission has preliminarily 
concluded that a separate Privacy Act regulation Sec.  146.13 for 
exemptions taken for this OIG system of records is not required by the 
Privacy Act or OMB guidance. Accordingly, the Commission, after 
consultation with the OIG, proposes to remove current Commission 
regulation Sec.  146.13 and incorporate the exemptions for CFTC-32 into 
proposed Commission regulation Sec.  146.12. Moreover, the Commission 
is proposing to set forth the specific reasons for which this system of 
records is being exempted from particular provisions of the Privacy 
Act. To that end, the Commission is proposing to explain in revised 
Commission regulation Sec.  146.12 that this system of records is being 
exempted because the records must be protected from disclosure in order 
to maintain the integrity of the investigative process and not provide 
to any individual an opportunity to access records and compromise that 
process, such as through the destruction of evidence, interference with 
witnesses, or otherwise. In addition, the Commission is proposing to 
exempt this system of records in order to keep confidential the 
identity of sources who provided information to the Commission during 
the course of the investigation under an express promise that their 
identities would remain confidential. If an individual can access the 
identities of confidential sources, those sources may be unwilling to 
provide information that the Commission needs for its law enforcement 
activities, federal employee and contractor witnesses may risk 
retaliation in the federal workplace, and any witness may risk witness 
interference tactics including threats, harassment, and physical and 
emotional harm. Specifically, the Commission is proposing to exempt 
this system of records, pursuant to subsection (j)(2) of the Privacy 
Act \17\ and subject to the requirements and limitations set forth 
therein, from the following provisions of the Privacy Act: 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), 
(4)(G)-(I), (5), and (8); (f); and (g). In addition, the Commission is 
proposing to exempt this system of records, pursuant to subsection 
(k)(2) of the Privacy Act \18\ and subject to the requirements and 
limitations set forth therein, from the following provisions of the 
Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); 
(e)(4)(G), (H), and (I); and (f).
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    \17\ 5 U.S.C. 552a(j)(2).
    \18\ 5 U.S.C. 552a(k)(2).
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Request for Comment
    The Commission requests comment on the justification for and scope 
of the CFTC-32 exemptions. The Commission also requests comment on 
whether the CFTC-32 exemptions should be included in proposed 
Commission regulation Sec.  146.12 or remain in separate Commission 
regulation Sec.  146.13.
6. CFTC-44 Personnel Clearance System (CFTC-44)
    CFTC-44 contains records related to the background investigations 
and security clearances of individuals who have been or are being 
considered for access to Commission facilities, information technology 
systems, and classified or confidential information. These records may 
include statements from individuals who have provided information in 
the course of a background investigation and have requested that their 
identity remain confidential, and records that constitute investigatory 
materials compiled for law enforcement purposes. This system of records 
is identified in current regulation Sec.  146.12 by its predecessor 
name, ``Exempted Employee Background Investigation Material,'' and the 
current regulation exempts the system of records only pursuant to 
subsection (k)(5) of the Privacy Act. The Commission is proposing to 
identify this system of records by its proper title and number and to 
set forth the specific reasons for which it is being exempted from 
particular provisions of the Privacy Act pursuant to both subsection 
(k)(2) and (k)(5) of the Privacy Act.\19\ To that end, to the extent 
records in this system of records are compiled solely for the purpose 
of determining an individual's suitability, eligibility, or 
qualifications for employment with the Commission, the Commission is 
proposing to explain in the revised Commission regulation Sec.  146.12 
that this system of records is exempt where the disclosure of records 
would reveal the identity of somebody who provided information in the 
context of the Commission's determination and who had expressly 
requested that their identity remain confidential in order to maintain 
the promised confidentiality and enable the Commission to obtain 
information relevant to its eligibility determinations. In addition, to 
the extent records in this system of records pertain to law enforcement 
investigations, the Commission is proposing to exempt this system of 
records because the records must be protected from disclosure in order 
to maintain the integrity of the investigative process and not provide 
to any individual the opportunity to compromise that process, such as 
through the destruction of evidence, interference with witnesses, or 
otherwise. The Commission is also proposing to exempt this system of 
records in order to keep confidential the identity of sources who 
provided information to the Commission during the course of the 
investigation under an express promise that their identities would 
remain confidential. If an individual can access the identities of 
confidential sources, those sources may be unwilling to provide 
information that the Commission needs for its law enforcement 
activities. Specifically, the Commission is proposing to exempt this

[[Page 7311]]

system of records, pursuant to subsections (k)(2) and (k)(5) of the 
Privacy Act \20\ and subject to the requirements and limitations set 
forth therein, from the following provisions of the Privacy Act: 5 
U.S.C. 552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), 
and (I); and (f).
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    \19\ 5 U.S.C. 552a(k)(2) and (k)(5).
    \20\ 5 U.S.C. 552a(k)(2) and (k)(5).
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Request for Comment
    The Commission requests comment on the justification for and scope 
of the CFTC-44 exemptions.
7. CFTC-49 Whistleblower Records (CFTC-49)
    CFTC-49 contains records related to whistleblower tips, complaints 
and referrals, records related to investigations and inquiries into 
whistleblower complaints, and records related to the whistleblower 
award claim and determination process. This system of records is not 
currently identified in Commission regulation Sec.  146.12 as a system 
of records that the Commission has exempted. The Commission is 
proposing to exempt this system of records because the records are 
compiled for law enforcement purposes and must be protected from 
disclosure in order to maintain the integrity of the whistleblower 
process and not provide to any individual an opportunity to access 
records and compromise an investigation, such as through the 
destruction of evidence, interference with witnesses, or otherwise. In 
addition, the Commission is proposing to exempt this system of records 
in order to keep confidential the identity of sources who provided 
information during the course of the investigation under an express 
promise that their identities would remain confidential. If an 
individual can access the identities of confidential sources, those 
sources may be unwilling to provide information that the Commission 
needs to investigate whistleblower tips, complaints, and referrals. 
Specifically, the Commission proposes to exempt this system of records, 
pursuant to subsection (k)(2) of the Privacy Act \21\ and subject to 
the requirements and limitations set forth therein, from the following 
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1), (2), (3), 
and (4); (e)(1); (e)(4)(G), (H), and (I); and (f).
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    \21\ 5 U.S.C. 552a(k)(2).
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Request for Comment
    The Commission requests comment on the justification for and scope 
of the CFTC-49 exemptions.

II. Related Matters

A. Regulatory Flexibility Act

    The Regulatory Flexibility Act (RFA) requires federal agencies to 
consider whether the rules they propose will have a significant 
economic impact on a substantial number of small entities and, if so, 
to provide a regulatory flexibility analysis regarding the economic 
impact on those entities.\22\
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    \22\ 5 U.S.C. 601 et seq.
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    The proposed regulations, issued under the Privacy Act, exempt 
certain systems of records maintained by the Commission from certain 
provisions of the Privacy Act, primarily those provisions related to an 
individual's right to access and seek amendment of those records. 
Individuals are defined in the Privacy Act as United States citizens or 
aliens lawfully admitted to the United States for permanent 
residence.\23\ Small entities, as defined in the RFA, are not 
individuals under the Privacy Act and are not provided rights 
thereunder; therefore, small entities are outside the scope of the 
proposed regulations. Accordingly, the Chairman, on behalf of the 
Commission, hereby certifies pursuant to 5 U.S.C. 605(b), that this 
proposed rule will not have a significant economic impact on a 
substantial number of small entities.
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    \23\ 5 U.S.C. 552a(a)(2).
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B. Paperwork Reduction Act

    The Paperwork Reduction Act (PRA) imposes certain requirements on 
federal agencies in connection with their conducting or sponsoring any 
collection of information.\24\ The Commission may not conduct or 
sponsor, and a respondent is not required to respond to, a request for 
collection of information unless the information collection request 
displays a currently valid control number issued by OMB. This proposed 
rule does not contain a ``collection of information,'' as defined in 
the PRA. Accordingly, the requirements imposed by the PRA are not 
applicable to this proposed rule.
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    \24\ 5 U.S.C. 3501 et seq.
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C. Cost-Benefit Considerations

    Section 15(a) of the Commodity Exchange Act (CEA) provides that, 
before promulgating a regulation under the CEA or issuing an order, the 
Commission shall consider the costs and benefits of the action of the 
Commission.\25\ Section 15(a) further specifies that the costs and 
benefits shall be evaluated in light of five broad areas of market and 
public concern: (1) protection of market participants and the public; 
(2) efficiency, competitiveness, and financial integrity of the futures 
markets; (3) price discovery; (4) sound risk management practices; and 
(5) other public interest considerations.\26\ The proposed rules are 
being promulgated under the Privacy Act and pertain to the rights of 
individuals with respect to records the Commission maintains about 
them. The proposed rules are not being promulgated under the CEA. 
Therefore, the Commission preliminarily finds that the considerations 
enumerated in section 15(a)(2) of the CEA are not applicable here.
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    \25\ 7 U.S.C. 19(a).
    \26\ 7 U.S.C. 19(a)(2).
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Request for Comment
    The Commission requests comment on whether its preliminary finding 
is correct.

D. Antitrust Considerations

    Section 15(b) of the CEA requires the Commission to take into 
consideration the public interest to be protected by the antitrust laws 
and endeavor to take the least anticompetitive means of achieving the 
purposes of the CEA, in issuing any order or adopting any Commission 
rule or regulation (including any exemption under section 4(c) or 
4c(b)), or in requiring or approving any bylaw, rule, or regulation of 
a contract market or registered futures association established 
pursuant to section 17 of the CEA.\27\ The Commission believes that the 
public interest to be protected by the antitrust laws is generally to 
protect competition. The Commission has considered the proposed rule to 
determine whether it is anticompetitive and has preliminarily 
identified no anticompetitive effects.
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    \27\ 7 U.S.C. 19(b).
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    Because the Commission has preliminarily determined that the 
proposed rule is not anticompetitive and has no anticompetitive 
effects, the Commission has not identified any less anticompetitive 
means of achieving the purposes of the Act.
Request for Comment
    The Commission requests comment on whether the proposed rule is 
anticompetitive and, if it is, what the anticompetitive effects are and 
whether there are less anticompetitive means of achieving the relevant 
purposes of the Act that would otherwise be served by adopting the 
proposed rule. The Commission also requests comment on whether the 
proposed rule implicates any other specific public interest to be 
protected by the antitrust laws.

[[Page 7312]]

List of Subjects in 17 CFR Part 146

    Privacy.

    For the reasons stated in the preamble, the Commodity Futures 
Trading Commission proposes to amend 17 CFR part 146 as follows:

PART 146--RECORDS MAINTAINED ON INDIVIDUALS

0
1. The authority citation for part 146 continues to read as follows:

    Authority:  88 Stat. 1896 (5 U.S.C. 552a), as amended; 88 Stat. 
1389 (7 U.S.C. 4a(j)).

0
2. Revise Sec.  146.12 to read as follows:


Sec.  146.12  Exemptions.

    The Commission is exempting from certain provisions of the Privacy 
Act the systems of records set forth in this section. In addition, when 
these systems of records and any other of the Commission's systems of 
records maintain a record received from another system of records that 
is exempted from one or more provisions of the Privacy Act, the 
Commission will claim the same exemptions for that record that are 
claimed for the system of records from which it originated.
    (a) CFTC-1 Enforcement Matter Register and Matter Indices. The 
system of records identified as CFTC-1 Enforcement Matter Register and 
Matter Indices contains an index and registry of enforcement 
investigations. Pursuant to 5 U.S.C. 552a(k)(2) and subject to the 
requirements and limitations set forth therein, the Commission is 
exempting this system of records from the following provisions of the 
Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); 
(e)(4)(G), (H), and (I); and (f), and from the following corresponding 
sections of this part: 146.3; 146.5; 146.6(d); 146.11(a)(7), (8), and 
(9); and 146.7(a). Exemptions from these particular subsections of the 
Privacy Act and sections of this part promulgated thereunder are 
justified for the following reasons:
    (1) From subsection (c)(3) (Accounting of Certain Disclosures), 
because release of the accounting of certain disclosures could alert 
the subject of an investigation to the existence and extent of that 
investigation and reveal the investigative interests of the Commission 
and the recipient entity. Release of such information to the subject of 
an investigation could reasonably be anticipated to impede and 
interfere with the Commission's efforts to identify and investigate 
unlawful activities.
    (2) From subsection (d)(1), (2), (3), and (4) (Access and 
Amendment), because individual access to these records could alert the 
subject of an investigation to the existence and extent of that 
investigation and reveal the investigative interests of the Commission 
and others. Providing a subject with access to these records could 
impair the effectiveness of the Commission's investigations and could 
significantly impede the investigation by providing the opportunity for 
the subject to destroy documentary evidence, improperly influence 
witnesses and confidential sources, fabricate testimony, and engage in 
other activities that could compromise the investigation. In addition, 
providing an individual with access to these records may reveal the 
identity of a source who furnished information under an express promise 
that their identity would remain confidential. Allowing the subject of 
the investigation to amend records in this system of records could 
likewise interfere with ongoing law enforcement proceedings and impose 
an impossible administrative burden by requiring law enforcement 
investigations to be continuously reinvestigated.
    (3) From subsection (e)(1) (Relevancy and Necessity of 
Information), because in the course of investigations into potential 
violations of law, the significance of certain information may not be 
clear or the information may not be strictly relevant or necessary to a 
specific investigation; but, effective law enforcement requires the 
retention of all information that may aid in establishing patterns of 
unlawful activity and providing investigative leads.
    (4) From subsection (e)(4)(G), (H), and(I) (Agency Requirements) 
and (f) (Agency Rules), because the Commission is not required to 
establish requirements, rules, or procedures related to access and 
amendment of records in a system of records that is exempt from the 
individual access and amendment provisions in subsection (d) of the 
Privacy Act.
    (b) CFTC-10 Investigatory Records. The system of records identified 
as CFTC-10 Investigatory Records contains records compiled for law 
enforcement purposes, including records developed during an 
investigation of violations or potential violations of the Commodity 
Exchange Act. Pursuant to 5 U.S.C. 552a(k)(2) and subject to the 
requirements and limitations set forth therein, the Commission is 
exempting this system of records from the following provisions of the 
Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); 
(e)(4)(G), (H), and (I); and (f), and from the following corresponding 
sections of this part: 146.3; 146.5; 146.6(d); 146.11(a)(7), (8), and 
(9); and 146.7(a). Exemptions from these particular subsections of the 
Privacy Act and sections of this part promulgated thereunder are 
justified for the following reasons:
    (1) From subsection (c)(3) (Accounting of Certain Disclosures), 
because release of the accounting of certain disclosures could alert 
the subject of an investigation to the existence and extent of that 
investigation and reveal the investigative interests of the Commission 
and the recipient entity. Release of such information to the subject of 
an investigation could reasonably be anticipated to impede and 
interfere with the Commission's efforts to identify and investigate 
unlawful activities.
    (2) From subsection (d)(1), (2), (3), and (4) (Access and 
Amendment), because individual access to these records could alert the 
subject of an investigation to the existence and extent of that 
investigation and reveal the investigative interests of the Commission 
and others. Providing a subject with access to these records could 
impair the effectiveness of the Commission's investigations and could 
significantly impede the investigation by providing the opportunity for 
the subject to destroy documentary evidence, improperly influence 
witnesses and confidential sources, fabricate testimony, and engage in 
other activities that could compromise the investigation. In addition, 
providing an individual with access to these records may reveal the 
identity of a source who furnished information under an express promise 
that their identity would remain confidential. Allowing the subject of 
the investigation to amend records in this system of records could 
likewise interfere with ongoing law enforcement proceedings and impose 
an impossible administrative burden by requiring law enforcement 
investigations to be continuously reinvestigated.
    (3) From subsection (e)(1) (Relevancy and Necessity of 
Information), because in the course of investigations into potential 
violations of law, the significance of certain information may not be 
clear or the information may not be strictly relevant or necessary to a 
specific investigation; but, effective law enforcement requires the 
retention of all information that may aid in establishing patterns of 
unlawful activity and providing investigative leads.
    (4) From subsection (e)(4)(G), (H), and(I) (Agency Requirements) 
and (f) (Agency Rules), because the Commission is not required to 
establish

[[Page 7313]]

requirements, rules, or procedures related to access and amendment of 
records in a system of records that is exempt from the individual 
access and amendment provisions in subsection (d) of the Privacy Act.
    (c) CFTC-12 National Futures Association (NFA) Applications Suite 
System. The system of records identified as CFTC-12 National Futures 
Association (NFA) Applications Suite System contains records held by 
NFA on behalf of the Commission, by delegated authority to support the 
Commission's registration and other regulatory authority. These records 
include records pertaining to the fitness of individuals to be 
registered with the Commission and engage in business activities that 
are subject to the Commission's jurisdiction and records pertaining to 
disciplinary or other adverse action investigated or taken with respect 
to individual registrants. Pursuant to 5 U.S.C. 552a(k)(2) and subject 
to the requirements and limitations set forth therein, the Commission 
is exempting this system of records from the following provisions of 
the Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1), (2), (3), and (4); 
(e)(1); (e)(4)(G), (H), and (I); and (f), and from the following 
corresponding sections of this part: 146.3; 146.5; 146.6(d); 
146,11(a)(7), (8), and (9); and 146.7(a). Exemptions from these 
particular subsections of the Privacy Act are justified for the 
following reasons:
    (1) From subsection (c)(3) (Accounting of Certain Disclosures), 
because release of accountings of certain disclosures could alert the 
subject of an investigation to the existence and extent of that 
investigation and reveal the investigative interests of the Commission 
and the recipient entity. Release of such information to the subject of 
an investigation could reasonably be anticipated to impede and 
interfere with the Commission's efforts to identify and investigate 
unlawful activities.
    (2) From subsection (d)(1), (2), (3), and (4) (Access and 
Amendment), because individual access to these records could alert the 
subject of an investigation to the existence and extent of that 
investigation and reveal the investigative interests of the Commission 
and others. Providing a subject with access to these records could 
impair the effectiveness of the Commission's investigations and could 
significantly impede the investigation by providing the opportunity for 
the subject to destroy documentary evidence, improperly influence 
witnesses and confidential sources, fabricate testimony, and engage in 
other activities that could compromise the investigation. In addition, 
providing an individual with access to these records may reveal the 
identity of a source who furnished information under an express promise 
that their identity would remain confidential. Allowing the subject of 
the investigation to amend records in this system of records could 
likewise interfere with ongoing law enforcement proceedings and impose 
an impossible administrative burden by requiring law enforcement 
investigations to be continuously reinvestigated.
    (3) From subsection (e)(1) (Relevancy and Necessity of 
Information), because in the course of investigations into potential 
violations of law, the significance of certain information may not be 
clear or the information may not be strictly relevant or necessary to a 
specific investigation; but, effective law enforcement requires the 
retention of all information that may aid in establishing patterns of 
unlawful activity and providing investigative leads.
    (4) From subsection (e)(4)(G), (H), and (I) (Agency Requirements) 
and (f) (Agency Rules), because the Commission is not required to 
establish requirements, rules, or procedures related to access and 
amendment of records in a system of records that is exempt from the 
individual access and amendment provisions in subsection (d) of the 
Privacy Act.
    (d) CFTC-31 Closed Commission Meetings. The system of records 
identified as CFTC-31 Closed Commission Meetings contains records about 
individuals who are the subject of discussion at closed Commission 
meetings, including those who are the subject of investigations or who 
are being considered for employment. These records may include 
statements from individuals who have provided information in the course 
of an applicant's or employee's background investigation or other 
Commission investigation and who have requested that their identities 
remain confidential. Pursuant to 5 U.S.C. 552a(k)(2) and (k)(5) and 
subject to the requirements and limitations set forth therein, the 
Commission is exempting this system of records from the following 
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1), (2), (3), 
and (4); (e)(1); (e)(4)(G), (H), and (I); and (f), and from the 
following corresponding sections of this part: 146.3; 146.5; 146.6(d); 
146.11(a)(7), (8), and (9); and Sec.  146.7(a). Exemptions from these 
particular subsections of the Privacy Act are justified for the 
following reasons:
    (1) From subsection (c)(3) (Accounting of Certain Disclosures), 
because release of the accounting of certain disclosures could alert 
the subject of an investigation to the existence and extent of that 
investigation and reveal the investigative interests of the Commission 
and the recipient entity. Release of such information to the subject of 
an investigation could reasonably be anticipated to impede and 
interfere with the Commission's efforts to identify and investigate 
unlawful activities.
    (2) From subsection (d)(1), (2), (3), and (4) (Access and 
Amendment), because individual access to these records could alert the 
subject of an investigation to the existence and extent of that 
investigation and reveal the investigative interests of the Commission 
and others. Providing a subject with access to these records could 
impair the effectiveness of the Commission's investigations and could 
significantly impede the investigation by providing the opportunity for 
the subject to destroy documentary evidence, improperly influence 
witnesses and confidential sources, fabricate testimony, and engage in 
other activities that could compromise the investigation. In addition, 
providing an individual with access to these records may reveal the 
identity of a source who furnished information under an express promise 
that their identity would remain confidential. Allowing the subject of 
the investigation to amend records in this system of records could 
likewise interfere with ongoing law enforcement proceedings and impose 
an impossible administrative burden by requiring law enforcement 
investigations to be continuously reinvestigated.
    (3) From subsection (e)(1) (Relevancy and Necessity of 
Information), because in the course of investigations into potential 
violations of law, the significance of certain information may not be 
clear or the information may not be strictly relevant or necessary to a 
specific investigation; but, effective law enforcement requires the 
retention of all information that may aid in establishing patterns of 
unlawful activity and providing investigative leads.
    (4) From subsection (e)(4)(G), (H), and (I) (Agency Requirements) 
and (f) (Agency Rules), because the Commission is not required to 
establish requirements, rules, or procedures related to access and 
amendment of records in a system of records that is exempt from the 
individual access and amendment provisions in subsection (d) of the 
Privacy Act.
    (e) CFTC-32, Office of the Inspector General Investigative Files. 
The system

[[Page 7314]]

of records identified as CFTC-32 Office of the Inspector General 
Investigative Files contains records relevant to criminal and civil 
investigations conducted by the Office of the Inspector General, 
including records about individuals being investigated for fraudulent 
and abusive activities. Pursuant to 5 U.S.C. 552a(j)(2) and subject to 
the requirements and limitations set forth therein, the Commission is 
exempting this system of records from the following provisions of the 
Privacy Act: 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), (3), and (4); 
(e)(1), (2), (3), (4)(G)-(I), (5), and (8); (f); and (g), and from the 
following corresponding sections of this part: 146.3; 146.4; 146.5; 
146.6(b), (d), and (e); 146.7(a), (c), and (d); 146.8; 146.9; 146.10; 
and 146.11(a)(7), (8), and (9). In addition, pursuant to 5 U.S.C. 
552a(k)(2) and subject to the requirements and limitations set forth 
therein, the Commission is exempting this system of records from the 
following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1), 
(2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); and (f), and from 
the following corresponding sections of this part: 146.3; 146.5; 
146.6(d); 146.11(a)(7), (8), and (9); and 146.7(a). Exemptions from 
these particular subsections of the Privacy Act are justified for the 
following reasons:
    (1) From subsection (c)(3) (Accounting of Certain Disclosures), 
because release of the accounting of certain disclosures could alert 
the subject of an investigation to the existence and extent of that 
investigation and reveal the investigative interests of the Commission 
and the recipient entity. Release of such information to the subject of 
an investigation could reasonably be anticipated to impede and 
interfere with the Commission's efforts to identify and investigate 
unlawful activities.
    (2) From subsection (c)(4) (Notice of Correction), because this 
system is exempt from the access and amendment provisions of subsection 
(d), as noted in paragraph (e)(3) of this section.
    (3) From subsection (d)(1), (2), (3), and (4) (Access and 
Amendment), because individual access to these records could alert the 
subject of an investigation to the existence and extent of that 
investigation and reveal the investigative interests of the Commission 
and others. Providing a subject with access to these records could 
impair the effectiveness of the Commission's investigations and could 
significantly impede the investigation by providing the opportunity for 
the subject to destroy documentary evidence, improperly influence 
witnesses and confidential sources, fabricate testimony, and engage in 
other activities that could compromise the investigation. In addition, 
providing an individual with access to these records may reveal the 
identity of a source who furnished information under an express promise 
that their identity would remain confidential. Allowing the subject of 
the investigation to amend records in this system of records could 
likewise interfere with ongoing law enforcement proceedings and impose 
an impossible administrative burden by requiring law enforcement 
investigations to be continuously reinvestigated.
    (4) From subsection (e)(1) (Relevancy and Necessity of Information) 
and (5) (Accuracy, Timeliness, Relevance, and Completeness), because in 
the course of investigations into potential violations of law, the 
significance of certain information may not be clear or the information 
may not be strictly relevant or necessary to a specific investigation; 
but, effective law enforcement requires the retention of all 
information that may aid in establishing patterns of unlawful activity 
and providing investigative leads.
    (5) From subsection (e)(2) (Collect from Individual), because in a 
law enforcement investigation the requirement that information be 
collected to the greatest extent possible from the subject individual 
would present a serious impediment to law enforcement, in that the 
subject of the investigation would be informed of the existence of the 
investigation and would therefore be able to avoid detection, 
apprehension, or legal obligations or duties.
    (6) From subsection (e)(3) (Privacy Act Statement), because to 
comply with the requirements of this subsection during the course of an 
investigation could impede the information gathering process and hamper 
the investigation.
    (7) From subsection (e)(4)(G), (H), and (I) (Agency Requirements) 
and (f) (Agency Rules), because the Commission is not required to 
establish requirements, rules, or procedures related to access and 
amendment of records in a system of records that is exempt from the 
individual access and amendment provisions in subsection (d) of the 
Privacy Act.
    (8) From subsection (e)(8) (Serve Notice), because the application 
of this provision could prematurely reveal an ongoing criminal 
investigation to the subject of the investigation, present a serious 
impediment to law enforcement by interfering with the ability to issue 
subpoenas or otherwise gather information, and reveal investigative 
techniques, procedures, or evidence.
    (9) From subsection (g) (Civil Remedies), because this system of 
records is exempt from the individual access and amendment provisions 
in subsection (d) of the Privacy Act for the reasons noted in paragraph 
(e)(3) of this section; therefore, the Commission is not subject to 
civil action for failure to adhere to those requirements.
    (f) CFTC-44 Personnel Clearance System. The system of records 
identified as CFTC-44 Personnel Clearance System contains records 
related to the background investigations and security clearances of 
individuals who have been or are being considered for access to 
Commission facilities, information technology systems, and classified 
or confidential information. These records may include statements from 
individuals who have provided information in the course of a background 
investigation and have requested that their identity remain 
confidential. Pursuant to 5 U.S.C. 552a(k)(2) and (k)(5) and subject to 
the requirements and limitations set forth therein, the Commission is 
exempting this system of records from the following provisions of the 
Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); 
(e)(4)(G), (H), and (I); and (f), and from the following corresponding 
sections of this part: 146.3; 146.5; 146.6(d); 146.11(a)(7), (8), and 
(9); and 146.7(a). Exemptions from these particular subsections of the 
Privacy Act are justified for the following reasons:
    (1) From subsections (c)(3) (Accounting of Certain Disclosures), 
because release of the accounting of certain disclosures could alert 
the subject of an investigation to the extent of that investigation and 
reveal investigative interests of the Commission and the recipient 
entity that were previously unknown to the individual. Release of such 
information to the subject of an investigation could reasonably be 
anticipated to impede and interfere with the Commission's efforts to 
adequately assess an individual when making a decision about the 
individual's access to Commission facilities, information technology 
systems, and classified and confidential information.
    (2) From subsection (d)(1), (2), (3), and (4) (Access and 
Amendment), because the records contained in this system may be related 
to ongoing investigations, and individual access to these records could 
alert the subject of an investigation to the extent of that 
investigation and reveal investigative interests of the Commission and 
others that were previously unknown to the

[[Page 7315]]

individual. Providing a subject with access to these records could 
impair the effectiveness of the Commission's investigations and could 
significantly impede the investigation by providing the opportunity for 
the subject to destroy documentary evidence, improperly influence 
witnesses and confidential sources, fabricate testimony, and engage in 
other activities that could compromise the investigation. In addition, 
providing an individual with access to these records may reveal the 
identity of a source who furnished information under an express promise 
that their identity would remain confidential. Amendment of the records 
in this system of records would interfere with ongoing law enforcement 
proceedings and impose an impossible administrative burden by requiring 
law enforcement investigations to be continuously reinvestigated.
    (3) From subsection (e)(1) (Relevancy and Necessity of 
Information), because in the course of conducting and adjudicating 
background investigations, the significance of certain information may 
not be clear or the information may not be strictly relevant or 
necessary to a specific investigation; but, effective investigations 
require the retention of all information that may aid in the 
investigation and provide investigative leads.
    (4) From subsection (e)(4)(G), (H), and (I) (Agency Requirements) 
and (f) (Agency Rules), because the Commission is not required to 
establish requirements, rules, or procedures related to access and 
amendment of records in a system of records that is exempt from the 
individual access and amendment provisions in subsection (d) of the 
Privacy Act.
    (g) CFTC-49 Whistleblower Records. The system of records identified 
as CFTC-49 Whistleblower Records contains records related to 
whistleblower tips, complaints and referrals, records related to 
investigations and inquiries into whistleblower complaints, and records 
related to the whistleblower award claim and determination process. 
Pursuant to 5 U.S.C. 552a(k)(2) and subject to the requirements and 
limitations set forth therein, the Commission is exempting this system 
of records from the following provisions of the Privacy Act: 5 U.S.C. 
552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); 
and (f), and from the following corresponding sections of this part: 
146.3; 146.5; 146.6(d); 146.11(a)(7), (8), and (9); and 146.7(a). 
Exemptions from these particular subsections of the Privacy Act are 
justified for the following reasons:
    (1) From subsection (c)(3) (Accounting of Certain Disclosures), 
because release of the accounting of certain disclosures could alert 
the subject of an investigation to the existence and extent of that 
investigation and reveal the investigative interests of the Commission 
and the recipient entity. Release of such information to the subject of 
an investigation could reasonably be anticipated to impede and 
interfere with the Commission's efforts to identify and investigate 
unlawful activities.
    (2) From subsection (d)(1), (2), (3), and (4) (Access and 
Amendment), because individual access to these records could alert the 
subject of an investigation to the existence and extent of that 
investigation and reveal the investigative interests of the Commission 
and others. Providing a subject with access to these records could 
impair the effectiveness of the Commission's investigations and could 
significantly impede the investigation by providing the opportunity for 
the subject to destroy documentary evidence, improperly influence 
witnesses and confidential sources, fabricate testimony, and engage in 
other activities that could compromise the investigation. Allowing the 
subject of the investigation to amend records in this system of records 
could likewise interfere with ongoing law enforcement proceedings and 
impose an impossible administrative burden by requiring law enforcement 
investigations to be continuously reinvestigated.
    (3) From subsection (e)(1) (Relevancy and Necessity of 
Information), because in the course of investigations, the significance 
of certain information may not be clear or the information may not be 
strictly relevant or necessary to a specific investigation; but, 
effective investigations require the retention of all information that 
may aid in the investigation or aid in establishing patterns of 
activity and provide investigative leads.
    (4) From subsection (e)(4)(G), (H), and (I) (Agency Requirements) 
and (f) (Agency Rules), because the Commission is not required to 
establish requirements, rules, or procedures related to access and 
amendment of records in a system of records that is exempt from the 
individual access and amendment provisions in subsection (d) of the 
Privacy Act.


Sec.  146.13   [Removed]

0
3. Remove Sec.  146.13.

    Issued in Washington, DC, on January 24, 2024, by the 
Commission.
Christopher Kirkpatrick,
Secretary of the Commission.

    Note: The following appendix will not appear in the Code of 
Federal Regulations.

Appendix to Privacy Act Regulations--Commission Voting Summary

    On this matter, Chairman Behnam and Commissioners Johnson, 
Goldsmith Romero, Mersinger, and Pham voted in the affirmative. No 
Commissioner voted in the negative.

[FR Doc. 2024-01684 Filed 2-1-24; 8:45 am]
BILLING CODE 6351-01-P