Privacy Act: Proposed Exemptions, 12954-12955 [2019-06166]

Agencies

• Federal Retirement Thrift Investment Board

[Federal Register Volume 84, Number 64 (Wednesday, April 3, 2019)]
[Proposed Rules]
[Pages 12954-12955]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-06166]


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Proposed Rules
                                                Federal Register
________________________________________________________________________

This section of the FEDERAL REGISTER contains notices to the public of 
the proposed issuance of rules and regulations. The purpose of these 
notices is to give interested persons an opportunity to participate in 
the rule making prior to the adoption of the final rules.

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Federal Register / Vol. 84, No. 64 / Wednesday, April 3, 2019 / 
Proposed Rules

[[Page 12954]]



FEDERAL RETIREMENT THRIFT INVESTMENT BOARD

5 CFR Part 1630


Privacy Act: Proposed Exemptions

AGENCY: Federal Retirement Thrift Investment Board.

ACTION: Notice of proposed rulemaking.

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SUMMARY: In accordance with the Privacy Act of 1974, as amended (the 
Act), the Federal Retirement Thrift Investment Board (FRTIB) proposes 
to exempt four systems of records from certain requirements of the Act. 
FRTIB has previously published Systems of Records Notices (SORNs) for 
these systems.

DATES: Comments on this notice must be received by May 3, 2019.

ADDRESSES: You may submit written comments to FRTIB through the 
following methods:
     Federal eRulemaking Portal: https://www.regulations.gov. 
Follow the website instructions for submitting comments.
     Email: [email protected].
     Fax: 202-942-1676.
     Mail or Hand Delivery: Office of General Counsel, Federal 
Retirement Thrift Investment Board, 77 K Street NE, Suite 1000, 
Washington, DC 20002.

FOR FURTHER INFORMATION CONTACT: Marla Greenberg, Chief Privacy 
Officer, Federal Retirement Thrift Investment Board, Office of General 
Counsel, 77 K Street NE, Suite 1000, Washington, DC 20002, 202-942-
1600, [email protected].

SUPPLEMENTARY INFORMATION: FRTIB proposes to revise its Privacy Act 
regulations at 5 CFR part 1630 to exempt one of its systems of records, 
FRTIB-13, from certain requirements of the Privacy Act, 5 U.S.C. 552a. 
Under the Privacy Act, individuals have a right of access to 
information pertaining to them which is contained in a system of 
records. At the same time, the Privacy Act permits certain types of 
systems to be exempt from some of the Privacy Act requirements. 
Subsection (k)(2) of the Privacy Act authorizes the head of an agency 
to exempt a system of records from the applicable subsections if 
investigatory records are compiled for law enforcement purposes, but 
only to the extent that the disclosure of such material would reveal 
the identity of a source who furnished information to the Government 
under an express promise that the identity of the source would be held 
in confidence.
    As indicated in the Agency's accompanying Privacy Act system of 
records notices amending FRTIB-13, this system contains information 
compiled by the Agency in the course of carrying out its fiduciary 
duties to detect and prevent fraudulent activity against participant 
accounts. FRTIB's fraud and forgery records fall under the exemption 
stated within subsection (k)(2) of the Privacy Act because these 
records are compiled for law enforcement purposes. FRTIB proposes to 
exempt eligible records contained within FRTIB-13 from the requirements 
of subsections (c)(3); (d); (e)(1); (e)(4)(G), (H), (I); and (f), which 
require agencies to provide an accounting of disclosures; provide 
notification, access, and amendment rights, rules, and procedures; 
maintain only relevant and necessary information; and identify 
categories of record sources. Exempting records from this system is 
necessary and appropriate to maintain the integrity of FRTIB's 
investigations into allegations of fraud or forgery and to ensure that 
FRTIB's efforts to obtain accurate and objective information will be 
successful. FRTIB has previously published a SORN for this system in 
the Federal Register. 81 FR 7106, 7111 (Feb. 10, 2016). To the extent 
that FRTIB uses investigatory material within this system of records as 
a basis for denying an individual any right, privilege, or benefit to 
which an individual would be entitled in the absence of that record, 
FRTIB will grant that individual access to the material except to the 
extent that access would reveal the identity of a source promised 
confidentiality.
    These exemptions apply only to the extent that information in this 
system is subject to exemption pursuant to 5 U.S.C. 552a(k). Where 
FRTIB determines compliance would not appear to interfere with or 
adversely affect the purpose of this system to investigate and prevent 
fraud, the applicable exemption may be waived by FRTIB in its sole 
discretion, Exemptions from the particular subsections are necessary 
and appropriate, and justified for the following reasons:
     5 U.S.C. 552(a)(c)(3) (the requirement to provide 
accountings of disclosures) and 5 U.S.C. 552a(d)(1)-(4) (requirements 
addressing notification, access, and amendment rights, collectively 
referred to herein as access requirements). Providing individuals with 
notification, access, and amendment rights with respect to allegations 
and investigations into fraud against participant accounts could reveal 
the existence of an investigation; investigative interest; 
investigative techniques; details about an investigation; security-
sensitive information such as information about security measures and 
security vulnerabilities; information that must remain non-public to 
protect personal privacy-identities of law enforcement personnel; or 
other sensitive or privacy-protected information. Revealing such 
information to individuals would compromise or otherwise impede pending 
and future law enforcement investigations and efforts to protect 
sensitive information. Revealing such information would also violate 
personal privacy. Additionally, revealing this information would enable 
individuals to evade detection and apprehension by security and law 
enforcement personnel; destroy, conceal, or tamper with evidence or 
fabricate testimony; or harass, intimidate, harm, coerce, or retaliate 
against witnesses, complainants, investigators, security personnel, law 
enforcement personnel, or their family members, their employees, or 
other individuals. With respect to investigatory material compiled for 
law enforcement purposes, the exemption pursuant to 5 U.S.C. 552a(k)(2) 
from access requirements in subsection (d) of the Act is statutorily 
limited. If any individual is denied a right, privilege, or benefit to 
which the individual would otherwise be entitled by Federal law or for 
which the individual would otherwise be eligible, access will be 
granted, except to the extent that the disclosure would reveal the 
identity of a source who furnished the information to the Government 
under an express promise of confidentiality.
     5 U.S.C. 552a(e)(1) (the requirement to maintain only 
relevant and necessary

[[Page 12955]]

information authorized by statute or Executive Order). It will not 
always be possible to determine at the time information is received or 
compiled in this system of records whether the information is or will 
be relevant and necessary to a law enforcement investigation. For 
example, a tip or lead that does not appear relevant or necessary when 
combined with other information that reveals a pattern or that comes to 
light later.
     5 U.S.C. 552a(e)(4)(G) and (H) (the requirements to 
describe procedures by which subjects may be notified of whether the 
system of records contains records about them and seek access or 
amendment of a record). These requirements concern individual access to 
records, and the records are exempt under subsections (c) and (d) of 
the Act, as described above. To the extent that subsection (e)(4)(G) 
and (H) are interpreted to require the Agency to promulgate more 
detailed procedures regarding record notification, access, or amendment 
than have been published in the Federal Register, exemption from those 
provisions is necessary for the same rationale as applies to 
subsections (c) and (d).
     5 U.S.C. 552a(e)(4)(I) (the requirement to describe the 
categories of record sources). To the extent that this subsection is 
interpreted to require a more detailed description regarding the record 
sources in this system than has been published in the Federal Register, 
exemption from this provision is necessary to protect the sources of 
law enforcement and intelligence information and to protect the privacy 
and safety of witnesses and informants and others who provide 
information to FRTIB or as part of the Thrift Savings Plan (TSP). 
Further, because records used to investigate and prosecute allegations 
of fraud and forgery against participant accounts could come from any 
source, it is not possible to know every category in advance in order 
to list them all in FRTIB's accompanying SORN. Some record source 
categories may not be appropriate to make public in the SORN if, for 
example, revealing them could enable individuals to discover 
investigative techniques and devise ways to bypass them to evade 
detection and apprehension.
     5 U.S.C. 552a(f) (the requirement to promulgate rules to 
implement provisions of the Privacy Act). To the extent that this 
subsection is interpreted to require agency rules addressing the 
aforementioned exempted requirements, exemption from this provision is 
also necessary to protect the sources of law enforcement and 
intelligence information and to protect the privacy and safety of 
witnesses and informants and others who provide information to FRTIB or 
as part of the TSP.

Regulatory Flexibility Act

    I certify that this regulation will not have a significant economic 
impact on a substantial number of small entities. This regulation will 
affect Federal employees and members of the uniformed services who 
participate in the Thrift Savings Plan, which is a Federal defined 
contribution retirement savings plan created under the Federal 
Employees' Retirement System Act of 1986 (FERSA), Public Law 99-335, 
100 Stat. 514, and which is administered by the Agency.

Paperwork Reduction Act

    I certify that these regulations do not require additional 
reporting under the criteria of the Paperwork Reduction Act.

Unfunded Mandates Reform Act of 1995

    Pursuant to the Unfunded Mandates Reform Act of 1995, 2 U.S.C. 602, 
632, 653, 1501 1571, the effects of this regulation on state, local, 
and tribal governments and the private sector have been assessed. This 
regulation will not compel the expenditure in any one year of $100 
million or more by state, local, and tribal governments, in the 
aggregate, or by the private sector. Therefore, a statement under Sec.  
1532 is not required.

List of Subjects in 5 CFR Part 1630

    Privacy.

    Accordingly, FRTIB proposes to revise 5 CFR part 1630 as follows:

PART 1630--PRIVACY ACT REGULATIONS

0
1. The authority citation for Part 1630 continues to read as follows:

    Authority: 5 U.S.C. 552a.
0
2. Amend Sec.  1630.15 by revising paragraph (b) to read as follows:


Sec.  1630.15  Exemptions.

* * * * *
    (b) Those designated systems of records which are exempt from the 
requirements of sections (c)(3); (d); (e)(1); (e)(4)(G), (H), (I); and 
(f) of the Privacy Act, 5 U.S.C. 552a, include FRTIB-13, Fraud and 
Forgery Records.

    Dated: March 21, 2019.
Ravindra Deo,
Executive Director.
[FR Doc. 2019-06166 Filed 4-2-19; 8:45 am]
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