Privacy Act Regulations; Exemption for the Personnel Security Program Files System, 54442-54445 [2022-19078]

Agencies

• DEPARTMENT OF THE INTERIOR
• Office of the Secretary

[Federal Register Volume 87, Number 171 (Tuesday, September 6, 2022)]
[Proposed Rules]
[Pages 54442-54445]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-19078]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 2

[DOI-2022-0007; 223D0102DM, DLSN00000.000000, DS65100000, DX.65101]
RIN 1090-AB16


Privacy Act Regulations; Exemption for the Personnel Security 
Program Files System

AGENCY: Office of the Secretary, 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/DOI-45, Personnel 
Security Program Files, 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 November 7, 2022.

ADDRESSES: You may submit comments, identified by docket number [DOI-
2022-0007] or [Regulatory Information Number (RIN) 1090-AB16], 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-2022-0007] or RIN 1090-AB16 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-2022-0007] or RIN 1090-AB16 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, 5 U.S.C. 552a(j) and 
(k).
    The DOI Office of Law Enforcement and Security (OLES) maintains the 
INTERIOR/DOI-45, Personnel Security Program Files, system of records. 
This system supports the DOI bureau and office Personnel Security 
Program functions to determine suitability, eligibility, and fitness 
for service of applicants for Federal employment and contract positions 
who require access to Departmental facilities and information systems 
and networks. The system also helps OLES manage a National Security 
Program to document and support decisions regarding clearance access to 
classified information and implement provisions that apply to Federal 
employees and contractors who access classified information or 
materials and participate in classified activities that impact national 
security, and ensure the safety, storage of classified information and 
security of Departmental facilities, information systems and networks, 
occupants, and users.
    The Personnel Security Program Files system will contain records 
created and managed by DOI bureaus and offices to support personnel 
security activities and document evaluations and decisions regarding 
suitability, eligibility, and fitness for service of applicants for 
Federal employment and contract positions to the extent necessary to 
manage secure access to Departmental facilities, information systems 
and networks, and to manage access to classified information and 
reciprocity. These records may include information about individuals 
related to possible violations of Federal laws and

[[Page 54443]]

regulations, potential incidents, investigations, and criminal 
activity. The system notice for INTERIOR/DOI-45, Personnel Security 
Program Files, system of records was last published in the Federal 
Register at 72 FR 11036 (March 12, 2007), 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 system of records for INTERIOR/DOI-45, Personnel Security 
Program Files.
    Under 5 U.S.C. 552a(k), the head of a Federal agency may promulgate 
rules to exempt a system of records from certain provisions of the 
Privacy Act. In this notice of proposed rulemaking, DOI is proposing to 
exempt portions of the system from certain provisions of the Privacy 
Act pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), (k)(5) and (k)(6) 
due to criminal, civil, and administrative law enforcement 
requirements. DOI is proposing to revise the Privacy Act regulations at 
43 CFR 2.254 to add a new paragraph (f) for records maintained in 
connection with testing and examination material that are exempt under 
5 U.S.C. 552a(k)(6) and to claim additional exemptions under the 
Privacy Act pursuant to 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), and (k)(5) 
as described in this document.
    Because this system of records contains material that support 
activities related to investigations, adjudication, continuous vetting, 
and national security purposes under the provisions of 5 U.S.C. 
552a(k)(1), (k)(2), (k)(3), (k)(5) and (k)(6), DOI proposes to exempt 
portions of the Personnel Security Program Files system from one or 
more of the following provisions: 5 U.S.C. 552a(c)(3), (c)(4), (d), 
(e)(1) through (e)(3), (e)(4)(G) through (e)(4)(I), (e)(5), (e)(8), 
(f), and (g). Where a release would not interfere with or adversely 
affect investigations, reveal investigatory material compiled for law 
enforcement purposes, reveal investigatory material compiled solely for 
the purpose of determining suitability, eligibility, or qualifications 
for Federal civilian employment, military service, Federal contracts, 
or access to classified information, or affect national security 
activities, including but not limited to revealing sensitive 
information or compromising confidential sources, the exemption may be 
waived on a case-by-case basis. 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. Personnel investigations and vetting 
records may contain classified information or investigatory 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 counterintelligence 
investigation, and the fact that they are subjects of the 
investigation, or could disclose classified or 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(c)(4); (d); (e)(4)(G) and (e)(4)(H); (f); and (g). 
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. 
Personnel investigation and vetting records may contain information 
classified pursuant to Executive Order, investigatory material compiled 
for law enforcement purposes other than material within the scope of 5 
U.S.C. 552a(j)(2), information pertaining to protective services 
pursuant to 18 U.S.C. 3056, investigatory material compiled solely for 
the purpose of determining suitability, eligibility, or qualifications 
for Federal civilian employment, military service, Federal contracts, 
or access to classified information, or testing and examination 
material used to determine individual qualifications. Granting access 
to these records in the Personnel Security Program Files 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 classified, security-sensitive, or 
confidential information that 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 and authorized vetting purposes because it 
is not always possible to determine the relevance or necessity of 
specific information in the early stages of an investigation or 
adjudication. 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 or adjudication. 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)(2). This section requires the agency to collect 
information directly from the individual to the greatest extent 
practical when the information may result in an adverse determination. 
During a background investigation or vetting process, it is not always 
possible or appropriate to collect information from the individual who 
is the subject of the investigation. The application of this provision 
could impair investigations and vetting activities by the Department 
when making suitability, eligibility, fitness, and credentialing 
determinations. In certain circumstances, the subject of an 
investigation cannot be required to provide information to 
investigators, and information must be collected from other sources. 
Furthermore, it is often necessary to collect information from sources 
other than the subject of the investigation to verify the accuracy of 
the evidence collected.
    5. 5 U.S.C. 552a(e)(3). This section requires an agency to inform 
each person whom it asks to supply information, on a form that can be 
retained by the person, of the authority which the information is 
sought and whether disclosure is mandatory or voluntary; of the 
principal purposes for

[[Page 54444]]

which the information is intended to be used; of the routine uses which 
may be made of the information; and the effects on the person, if any, 
of not providing all or any part of the requested information. 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.
    6. 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.
    7. 5 U.S.C. 552a(e)(5). This section requires an agency to maintain 
its records with such accuracy, relevance, timeliness, and completeness 
as is reasonably necessary to assure fairness to the individual in 
making any determination about the individual. In collecting 
information for investigations, vetting, adjudications, or law 
enforcement purposes, it is not possible to determine in advance what 
information is accurate, relevant, timely, and complete. Material that 
may seem unrelated, irrelevant, or incomplete when collected may take 
on added meaning or significance as the investigation progresses. The 
application of this provision could impair investigations and 
authorized vetting because it is not always possible to determine 
accuracy, timeliness or completeness of specific information in the 
early stages of an investigation or adjudication. It is only after 
information is evaluated that such information can be established as 
accurate, timely or complete for an investigation or adjudication. The 
application of this provision during an investigation or vetting 
process would impose an impracticable administrative burden on the 
agency.
    8. 5 U.S.C. 552a(e)(8). This section requires an agency to make 
reasonable efforts to serve notice on an individual when any record on 
the individual is made available to any person under compulsory legal 
process when that process becomes a matter of public record. Complying 
with this provision could prematurely reveal an ongoing criminal 
investigation to the subject of the investigation.

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. 1531 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

[[Page 54445]]

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 proposed 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.

0
2. Amend Sec.  2.254 by adding new paragraphs (b)(2), (c)(20), (d)(2), 
(e)(7), and add new paragraph (f) to read as follows:


Sec.  2.254  Exemptions.

* * * * *
    (b) Classified records exempt under 5 U.S.C. 552a(k)(1).
* * * * *
    (2) INTERIOR/DOI-45, Personnel Security Program Files.
    (c) Law enforcement records exempt under 5 U.S.C. 552a(k)(2).
* * * * *
    (20) INTERIOR/DOI-45, Personnel Security Program Files.
    (d) Records maintained in connections with providing protective 
service exempt under 5 U.S.C. 552a(k)(3).
* * * * *
    (2) INTERIOR/DOI-45, Personnel Security Program Files.
    (e) Investigatory records exempt under 5 U.S.C. 552a(k)(5).
* * * * *
    (7) INTERIOR/DOI-45, Personnel Security Program Files.
    (f) Records maintained on testing and examination material exempt 
under 5 U.S.C. 552a(k)(6). Pursuant to U.S.C. 552a(k)(6), the following 
systems of records have been exempted from paragraphs (c)(3), (d), 
(e)(1), (e)(4)(G), (H) and (I), and (f) of 5 U.S.C. 552a and the 
provisions of the regulations in this subpart implementing these 
paragraphs.
    (1) INTERIOR/DOI-45, Personnel Security Program Files.
* * * * *

Teri Barnett,
Departmental Privacy Officer, Department of the Interior.
[FR Doc. 2022-19078 Filed 9-2-22; 8:45 am]
BILLING CODE 4334-63-P