Privacy Act of 1974: Implementation of Exemptions

<RULE> DEPARTMENT OF ENERGY <CFR>10 CFR Part 1008</CFR> <DEPDOC>[DOE-HQ-2024-0084]</DEPDOC> <RIN>RIN 1903-AA16</RIN> <SUBJECT>Privacy Act of 1974: Implementation of Exemptions</SUBJECT> <HD SOURCE="HED">AGENCY:</HD> U.S. Department of Energy. <HD SOURCE="HED">ACTION:</HD> Final rule. <SUM> <HD SOURCE="HED">SUMMARY:</HD> The Department of Energy (DOE or Department) is revising its regulations to exempt certain records maintained under a newly established system of records—DOE-42 Nondiscrimination in Federally Assisted Programs Files <E T="03">—</E> from the notification and access provisions of the Privacy Act of 1974. The Department is exempting portions of this system of records from these subsections of the Privacy Act because of requirements related to investigatory material compiled for law enforcement purposes. </SUM> <EFFDATE> <HD SOURCE="HED">DATES:</HD> This final rule is effective on January 16, 2025. </EFFDATE> <FURINF> <HD SOURCE="HED">FOR FURTHER INFORMATION CONTACT:</HD> Kyle David, U.S. Department of Energy, 1000 Independence Avenue SW, Office 8H-085, Washington, DC, 20585; facsimile: (202) 586-8151; email: <E T="03">kyle.david@hq.doe.gov;</E> telephone: (240) 686-9485. </FURINF> <SUPLINF> <HD SOURCE="HED">SUPPLEMENTARY INFORMATION:</HD> <HD SOURCE="HD1">Table of Contents</HD> <EXTRACT> <FP SOURCE="FP-2">I. Authority and Background</FP> <FP SOURCE="FP1-2">A. Authority</FP> <FP SOURCE="FP1-2">B. Background</FP> <FP SOURCE="FP-2">II. Discussion</FP> <FP SOURCE="FP-2">III. Summary of Public Comments</FP> <FP SOURCE="FP-2">IV. Section 1008.12 Analysis</FP> <FP SOURCE="FP-2">V. Procedural Issues and Regulatory Review</FP> <FP SOURCE="FP1-2">A. Review Under Executive Orders 12866, 13563, and 14094</FP> <FP SOURCE="FP1-2">B. Review Under the Regulatory Flexibility Act</FP> <FP SOURCE="FP1-2">C. Review Under the Paperwork Reduction Act of 1995</FP> <FP SOURCE="FP1-2">D. Review Under the National Environmental Policy Act of 1969</FP> <FP SOURCE="FP1-2">E. Review Under Executive Order 12988</FP> <FP SOURCE="FP1-2">F. Review Under Executive Order 13132</FP> <FP SOURCE="FP1-2">G. Review Under Executive Order 13175</FP> <FP SOURCE="FP1-2">H. Review Under the Unfunded Mandates Reform Act of 1995</FP> <FP SOURCE="FP1-2">I. Review Under Executive Order 12360</FP> <FP SOURCE="FP1-2">J. Review Under Executive Order 13211</FP> <FP SOURCE="FP1-2">K. Review Under the Treasury and General Government Appropriations Act, 1999</FP> <FP SOURCE="FP1-2">L. Review Under the Treasury and General Government Appropriations Act, 2001</FP> <FP SOURCE="FP1-2">M. Congressional Review</FP> <FP SOURCE="FP-2">VI. Approval by the Office of the Secretary of Energy</FP> </EXTRACT> <HD SOURCE="HD1">I. Authority and Background</HD> <HD SOURCE="HD2">A. Authority</HD> DOE has broad authority to manage the agency's collection, use, processing, maintenance, storage, and disclosure of Personally Identifiable Information (PII) pursuant to the following authorities: 42 United States Code (U.S.C.) 7101 <E T="03">et seq.,</E> 50 U.S.C. 2401 <E T="03">et seq.,</E> 5 U.S.C. 1104, 5 U.S.C. 552, 5 U.S.C. 552a, 42 U.S.C. 7254, 5 U.S.C. 301, and 42 U.S.C. 405 note. <HD SOURCE="HD2">B. Background</HD> The Privacy Act of 1974 (the Act) (5 U.S.C. 552a) embodies fair information practice principles in a statutory framework governing the means by which the U.S. Government collects, maintains, uses, and disseminates personally identifiable information. The Privacy Act applies to information 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 is retrieved by the name of the individual or by some identifying number, symbol, or other identifying particular assigned to the individual. In the Privacy Act, an individual is defined to encompass U.S. citizens and lawful permanent residents. The Privacy Act includes two sets of provisions that allow agencies to claim exemptions from certain requirements in the statute. These provisions allow agencies in certain circumstances to promulgate rules to exempt a system of records from certain provisions of the Privacy Act. For this system of records, pursuant to 5 U.S.C. 552a(k)(2), the Department exempts this system of records from subsections (c)(3); (d); and (e)(1) of the Privacy Act. This exemption is needed to protect from disclosure investigatory material compiled for law enforcement purposes. Pursuant to the Privacy Act and Office of Management and Budget (OMB) Circular A-108, <E T="03">Federal Agency Responsibilities for Review, Reporting, and Publication under the Privacy Act,</E> DOE is issuing this final rule to make clear to the public the reasons why this particular exemption is being applied. <HD SOURCE="HD1">II. Discussion</HD> DOE is claiming an exemption from certain requirements of the Privacy Act for a new system of records: DOE-42 Nondiscrimination in Federally Assisted Programs Files. The Department is exempting portions of a newly established system of records—DOE-42 Nondiscrimination in Federally Assisted Programs Files—from subsections (c)(3); (d); and (e)(1) of the Privacy Act of 1974. To claim this exemption, DOE is amending 10 CFR 1008.12 by adding a new paragraph, (b)(2)(ii)(R). The Department exempts portions of this system of records from these subsections of the Privacy Act because of requirements related to the compilation of investigatory material for law enforcement purposes. DOE-42 Nondiscrimination in Federally Assisted Programs Files will provide a central electronic repository to: (i) maintain all records used by OCR-EEO personnel in making Federal civil rights compliance determinations with accuracy, relevance, timeliness, and completeness to assure fairness to the individual(s) in the determination; (ii) create appropriate administrative, technical, and physical safeguards that ensure the security and confidentiality of records and protect against any anticipated threats to their security or integrity and; (iii) create rules of conduct for authorized OCR-EEO personnel involved in the operation, maintenance, and routine uses for this system records. For this system of records, DOE is claiming the Privacy exemption from requirements in subsections (c)(3); (d); and (e)(1) of the Privacy Act. In addition, the system has been exempted from the Privacy Act, pursuant to 5 U.S.C. 552a(k)(2). These exemptions are needed to protect information relating to DOE activities from disclosure to subjects or others related to these activities. Specifically, these exemptions from the Privacy Act are necessary in order to preclude subjects of these activities from frustrating these processes; to avoid disclosure of activity techniques; to protect the identities and physical safety of confidential informants and law enforcement personnel; to ensure DOE's ability to obtain information from third parties and other sources; and to protect the privacy of third parties. Disclosure of information to the subject of the inquiry could also permit the subject to avoid detection or apprehension. Exemption from these Privacy Act requirements is standard for law enforcement and national security matters and are often exercised by many Federal law enforcement and intelligence agencies. In appropriate circumstances, where compliance would not appear to interfere with or adversely affect the law enforcement purposes of this system and overall law enforcement process, the applicable exemption of these requirements may be waived on a case-by-case basis. Exemption from these particular Privacy Act requirements for DOE-42 Nondiscrimination in Federally Assisted Programs Files is justified, on a case-by-case basis to be determined at the time a request is made for the following reasons: In particular, exemption from the Privacy Act's requirement in subsections (c)(3) (Accounting for Disclosures) is necessary because release of the accounting of disclosures could alert the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DOE as well as the recipient agency. Disclosure of the accounting would, therefore, present a serious impediment to law enforcement efforts or efforts to preserve national security. Disclosure of the accounting would also permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension, which would undermine the entire investigative process. Exemption from the Privacy Act's requirement in subsection (d) (Access to Records) is necessary because access to the records contained in this system of records could inform the subject of an investigation of an actual or potential criminal, civil, or regulatory violation to the existence of that investigation and reveal investigative interest on the part of DOE or another agency. Access to the records could permit the individual who is the subject of a record to impede the investigation, to tamper with witnesses or evidence, and to avoid detection or apprehension. Amendment of the records could interfere with ongoing investigations and law enforcement activities and would impose an unreasonable administrative burden by requiring investigations to be continually reinvestigated. In addition, permitting access and amendment to such information could disclose security-sensitive information that could be detrimental to nuclear or energy sector security. Exemption from the Privacy Act's requirements in subsection (e)(1) (Relevancy and Necessity of Information) is necessary because in the course of investigations into potential violations of Federal law, the accuracy of information obtained or introduced occasionally may be unclear, or th ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━ Preview showing 10k of 34k characters. Full document text is stored and available for version comparison. ━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━━