Privacy Act; Implementation

DEPARTMENT OF HEALTH AND HUMAN SERVICES <CFR>45 CFR Part 5b</CFR> <DEPDOC>[Docket Number NIH-2022-0002]</DEPDOC> <RIN>RIN 0925-AA69</RIN> <SUBJECT>Privacy Act; Implementation</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> National Institutes of Health (NIH), Department of Health and Human Services (HHS). <HD SOURCE="HED">ACTION:</HD> Notice of proposed rulemaking. <SUM> <HD SOURCE="HED">SUMMARY:</HD> In accordance with subsections (j)(2) and (k)(2) of the Privacy Act of 1974, as amended (the Privacy Act or the Act), the Department of Health and Human Services (HHS or Department) is proposing to exempt a new system of records maintained by the National Institutes of Health (NIH), System No. 09-25-0224, “NIH Police Records,” from certain requirements of the Act. The new system of records will cover criminal and non-criminal law enforcement investigatory material maintained by the NIH Division of Police, a component of NIH which performs criminal law enforcement as its principal function. The exemptions are necessary and appropriate to protect the integrity of law enforcement proceedings and records compiled in the course of NIH Division of Police activities, prevent disclosure of investigative techniques, and protect the identity of confidential sources involved in those activities. Elsewhere in the <E T="04">Federal Register</E> <E T="03">,</E> HHS/NIH has published a System of Records Notice (SORN) for System No. 09-25-0224 for public notice and comment which describes the new system of records in more detail. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> Submit either electronic or written comments regarding this document by August 6, 2024. </EFFDATE> <HD SOURCE="HED">ADDRESSES:</HD> Submit comments, identified by Docket No NIH-2022-0002, by any of the following methods: <HD SOURCE="HD2">Electronic Submissions</HD> Submit electronic comments in the following way: • <E T="03">Federal eRulemaking Portal: https://www.regulations.gov.</E> Follow the instructions for submitting comments. <HD SOURCE="HD2">Written Submissions</HD> Submit written submissions in the following ways: • <E T="03">Fax:</E> 301-402-0169 (not a toll-free number). • <E T="03">Mail:</E> Daniel Hernandez, NIH Regulations Officer, Office of Management Assessment, National Institutes of Health, 6705 Rockledge Drive, (RK1) 601-U, Rockville, MD 20892-7901. To ensure timelier processing of comments, HHS/NIH is no longer accepting comments submitted to the agency by email. HHS/NIH encourages you to continue to submit electronic comments by using the Federal eRulemaking Portal, as described previously, in the <E T="02">ADDRESSES</E> portion of this document under <E T="03">Electronic Submissions.</E> <E T="03">Instructions:</E> All submissions received must include the agency name and Docket No. for this rulemaking. All comments received may be posted without change to <E T="03">https://www.regulations.gov,</E> including any personal information provided. <E T="03">Docket:</E> For access to the docket to read background documents or comments received, go to <E T="03">https://www.regulations.gov</E> and follow the instructions provided for conducting a search, using the docket number(s) found in brackets in the heading of this document. <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> General questions about the exemptions may be submitted to Daniel Hernandez, NIH Regulations Officer, Office of Management Assessment, National Institutes of Health, 6705 Rockledge Drive, (RK1) 601-U, Rockville, MD 20892-7901, telephone 301-496-4607, fax 301-402-0169, email <E T="03">dhernandez@mail.nih.gov.</E> </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">I. Background on the NIH Police Division and New System of Records 09-25-0224</HD> Elsewhere in the <E T="04">Federal Register</E> <E T="03">,</E> HHS/NIH has published notice of its establishment of a new system of records 09-25-0224, “NIH Police Records.” The purpose of this rulemaking is to exempt that system of records from certain requirements of the Privacy Act as permitted by 5 U.S.C. 552a(j)(2) and (k)(2). The new system of records will cover records maintained by the NIH Division of Police, Office of Research Services (ORS), in the NIH Office of the Director. The Division of Police was established in 1968 to provide an immediate and primary law enforcement program for the NIH and derives its authority from Memorandum from the Assistant Secretary for Administration, OS, to the Director, NIH, June 13, 1968; Memorandum from the Assistant Secretary for Administration, OS, to the Director, NIH, June 13, 1968, entitled: Delegation of Authority to Assist in Controlling Violations of Law at Certain HEW Facilities Located in Montgomery County, Maryland; 40 U.S.C. 1315 (Law enforcement authority of Secretary of Homeland Security for protection of public property; a Department of Homeland Security (DHS) delegation of authority to HHS/NIH; and an NIH delegation of authority to the NIH Division of Police); General Administrative Delegation of Authority Number 08, Control of Violations of Law at Certain NIH Facilities (Sept. 1, 2020). Based on that establishing authority, the Division of Police performs criminal law enforcement as its principal function. However, the Division of Police conducts both criminal and non-criminal ( <E T="03">e.g.,</E> civil, administrative, regulatory) law enforcement investigations. The NIH Division of Police is directly responsible for the provision of daily law enforcement and criminal and civil investigative activities required to protect the life, safety, and property of NIH employees, contractors, patients, and visitors at NIH. To perform these responsibilities, the NIH Division of Police compiles and maintains records of complaints of incidents, inquiries, investigative findings, arrest records, and court dispositions which are retrieved by personal identifiers and therefore constitute a “system of records” as defined by the Privacy Act at 5 U.S.C. 552a(a)(5). The primary purposes for which the records are used are to: (1) record incidents of crime, civil disturbance, and traffic accidents on the NIH enclave, and the investigation of such incidents; (2) maintain information essential to the protection of life, safety, and property at NIH; (3) provide official records of law enforcement investigative efforts for use in administrative, criminal and/or civil proceedings; and (4) document criminal and civil law enforcement investigations. <HD SOURCE="HD1">II. Eligible Records and Exemptions</HD> The new system of records will include both criminal and non-criminal ( <E T="03">e.g.,</E> civil, administrative, regulatory) law enforcement investigatory records which will be retrieved by subject individuals' personal identifiers. Such records are eligible to be exempted from certain Privacy Act requirements, as follows: • Subsection (j)(2) of the Privacy Act (5 U.S.C. 552a(j)(2)) allows an agency head to exempt from certain Privacy Act provisions a system of records maintained by the agency or component thereof which performs as its principal function any activity pertaining to the enforcement of criminal laws. • Subsection (k)(2) of the Act (5 U.S.C. 552a(k)(2)) allows an agency head to exempt from certain Privacy Act provisions a system of records containing investigatory material compiled for law enforcement purposes, other than material within the scope of subsection (j)(2) (for example, material compiled for a civil, administrative, or regulatory law enforcement purpose, or material compiled for a criminal law enforcement purpose by an agency component that does not perform criminal law enforcement as its principal function). This exemption's effect on the subject individual's access rights is qualified in that if any individual is denied any right, privilege, or benefit to or for which the individual otherwise would be entitled by Federal law, or for which the individual would otherwise be eligible, as a result of the maintenance of the system of records, the individual must be provided the requested materials except to the extent that disclosure 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. HHS/NIH is establishing the following exemptions for the records: • Based on 5 U.S.C. 552a(k)(2), HHS/NIH is exempting non-criminal ( <E T="03">e.g.,</E> civil, administrative, regulatory) law enforcement investigatory material in System No. 09-25-0224 from the requirements in subsections (c)(3), (d)(1) through (4), (e)(1), (e)(4)(G) through (I), and (f) of the Privacy Act, which require the agency to provide an accounting of disclosures; provide notification, access, and amendment rights; maintain only relevant and necessary information authorized by a statute or Executive order; establish and describe procedures whereby an individual can be notified if a system of records contains information pertaining to that individual and how to gain access to pertinent records; identify categories of record sources; and promulgate rules regarding these procedures. The effect of this exemption on a subject individual's access rights will be limited as required by subsection (k)(2) to information that would reveal the identity of a source who was expressly promised confidentiality in cases in which maintenance of the records results in denial of a Federal right, privilege, or benefit to or for which the individual would otherwise be entitled or eligible. • Based on subsection 5 U.S.C. 552a(j)(2), HHS/NIH is exempting criminal law enforcement investigatory material in System No. 09-25-0224 from the same requirements identified above, and from these additional subsections: ○ (c)(4), requiring t ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 28k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━