[Federal Register Volume 78, Number 148 (Thursday, August 1, 2013)]
[Proposed Rules]
[Pages 46555-46558]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-18223]


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DEPARTMENT OF THE INTERIOR

Office of the Secretary

43 CFR Part 2

[XXXD4523WT DWT000000.000000 DS65101000]
RIN 1090-AB02


 Privacy Act Regulations

AGENCY: Office of the Secretary, Interior.

ACTION: Proposed rule; request for comments.

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SUMMARY: The Department of the Interior is proposing to amend its 
regulations to exempt certain records in the Incident Management, 
Analysis and Reporting System from one or more provisions of the 
Privacy Act because of criminal, civil, and administrative law 
enforcement requirements.

DATES: Submit written comments on or before September 30, 2013.

ADDRESSES: Send written comments, identified by RIN number 1090-AB02, 
by one of the following methods:
     Federal e-Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: David Alspach, Office of the Secretary Privacy Act 
Officer, 1849 C Street NW., Mail Stop 2650 MIB, Washington, DC 20240.
     Email: David Alspach, Privacy Act Officer, Office of the 
Secretary, privacy@nbc.gov

FOR FURTHER INFORMATION CONTACT: David Alspach, Office of the Secretary 
Privacy Act Officer, 1849 C Street NW., Mail Stop 2650 MIB, Washington, 
DC 20240. Email at privacy@nbc.gov.

SUPPLEMENTARY INFORMATION:

Background

    The Privacy Act of 1974, as amended (Privacy Act), 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 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).
    An individual may request access to records containing information 
about him or herself, 5 U.S.C. 552a(b), (d). However, the Privacy Act 
authorizes Government 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 Department of the Interior (DOI), Office of the Secretary, 
maintains the Incident Management, Analysis and Reporting System 
(IMARS) system of records. IMARS is an incident management and 
reporting system which will enhance and improve the following 
capabilities to the Department: Preventing, detecting and investigating 
known and suspected criminal activity; protecting natural and cultural 
resources; capturing, integrating and sharing law enforcement and 
related information and observations from other sources; identifying 
needs such as training and resources; measuring performance of law 
enforcement programs and operations; meeting reporting requirements; 
providing Department of Homeland Security and National Incident Based 
Reporting System interface frameworks; analyzing and prioritizing 
protection efforts; justifying requests and expenditures; assisting in 
managing visitor use and protection programs, including training; 
investigating, detaining and apprehending those committing crimes on 
DOI properties or tribal reservations (for the purpose of this system 
of records notice, tribal reservations include contiguous areas policed 
by tribal or Bureau of Indian Affairs law enforcement offices) managed 
by a Native American tribe under DOI's Bureau of Indian Affairs; and 
investigating and preventing visitor accident injuries on DOI 
properties or tribal reservations.
    Incident and non-incident data related to criminal and civil 
activity will be collected in support of law enforcement, homeland 
security, and security (physical, personnel and stability, information, 
and industrial) activities. This may include data documenting all 
investigations and law enforcement activities, traffic safety and 
traffic accidents. Data relating to emergency management, sharing and 
analysis activities of the Department will also be collected.
    In accordance with the Privacy Act of 1974, as amended, DOI 
proposes to consolidate the following DOI Privacy Act systems of 
records: Bureau of Reclamation Law Enforcement Management Information 
System (RLEMIS)--Interior, WBR-50 (73 FR 62314, October 20, 2008); Fish 
and Wildlife Service Investigative Case File

[[Page 46556]]

System--Interior, FWS-20 (48 FR 54719, December 6, 1983); Bureau of 
Land Management Criminal Case Investigation--Interior, BLM-18 (73 FR 
17376, April 1, 2008); Bureau of Indian Affairs Law Enforcement 
Services--Interior, BIA-18 (70 FR 1264, January 6, 2005); and National 
Park Service Case Incident Reporting System, NPS-19 (70 FR 1274, 
January 6, 2005) into one Department of the Interior system of records, 
titled the Incident Management, Analysis and Reporting System (IMARS).
    In this notice of proposed rulemaking, the Office of the Secretary 
is proposing to exempt the IMARS system from certain provisions of the 
Privacy Act pursuant to 5 U.S.C. 552a(j)(2) and (k)(2). Certain 
Department of the Interior bureaus and offices currently have published 
exemptions for law enforcement records, and these exemptions will 
continue to be applicable until the final rule has been completed.
    Under 5 U.S.C. 552a(j)(2),the head of a Federal agency may 
promulgate rules to exempt a system of records from certain provisions 
of 5 U.S.C. 552a if the system of records is ``maintained by an agency 
or component thereof which performs as its principal function any 
activity pertaining to the enforcement of criminal laws, including 
police efforts to prevent, control or reduce crime or to apprehend 
criminals.'' Under 5 U.S.C. 552a(k)(2), the head of a Federal agency 
may promulgate rules to exempt a system of records from certain 
provisions of 5 U.S.C. 552a if the system of records is ``investigatory 
material complied for law enforcement purposes, other than material 
within the scope of subsection (j)(2),'' or ``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.''
    Because this system of records contains law enforcement and 
investigative material within the provision of 5 U.S.C. 552a(j)(2) and 
(k)(2), the Department of the Interior proposes to exempt the IMARS 
System of Records 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 law enforcement 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. Release of accounting of disclosures 
would alert the subjects of an investigation to the existence of the 
investigation and the fact that they are subjects of the investigation. 
The release of such information to the subjects of an investigation 
would provide them with significant information concerning the nature 
of the 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. 
Granting access to records in IMARS could inform the subject of an 
investigation of an actual or potential criminal violation of the 
existence of that investigation, of 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 and 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 law enforcement, because it is not 
always possible to determine the relevance or necessity of specific 
information in the early stages of an investigation. Relevance and 
necessity are often questions of judgment and timing, and it is only 
after the information is evaluated that the relevance and necessity of 
such information can be established. In addition, during the course of 
the 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. Furthermore, 
during the course of the investigation, an investigator may obtain 
information concerning the violation of laws outside the scope of the 
investigator's jurisdiction. In the interest of effective law 
enforcement, DOI investigators should retain this information, since it 
can aid in establishing patterns of criminal activity and can provide 
valuable leads for other law enforcement agencies.
    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. 
The application of this provision could impair investigations and law 
enforcement by alerting the subject of an investigation of the 
existence of the investigation, enabling the subject to avoid detection 
or apprehension, to influence witnesses improperly, to destroy 
evidence, or to fabricate testimony. In addition, 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 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 of that investigation, which could interfere with the 
investigation. Moreover, providing such information to the subject of 
an investigation could seriously impede or compromise an undercover 
investigation by revealing its existence and could endanger the

[[Page 46557]]

physical safety of confidential sources, witnesses, and investigators 
by revealing their identities.
    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 section could disclose investigative 
techniques and procedures and 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 criminal 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 restrictions of this provision could 
interfere with the preparation of a complete investigative report, 
thereby impeding effective law enforcement.
    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)

    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 rulemaking is not significant.
    Executive Order 13563 reaffirms the principles of E.O. 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. E.O. 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 proposed 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.). 
This proposed rule would not impose a requirement for small businesses 
to report or keep records on any of the requirements contained in this 
rulemaking. The exemptions to the Privacy Act apply to individuals, not 
to entities covered under the Regulatory Flexibility Act.

3. Small Business Regulatory Enforcement Fairness Act (SBREFA)

    This proposed rule would not be a major rule under 5 U.S.C. 804(2), 
the Small Business Regulatory Enforcement Fairness Act. This proposed 
rule:
    (a) Would not have an annual effect on the economy of $100 million 
or more.
    (b) Would not cause a major increase in costs or prices for 
consumers, individual industries, Federal, State, or local government 
agencies, or geographic regions.
    (c) Would 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.

4. Unfunded Mandates Reform Act

    This rulemaking would 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 would not 
have a significant or unique effect on State, local, or tribal 
governments or the private sector. This proposed rule would make 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.

5. Takings (E.O. 12630)

    In accordance with Executive Order 12630, the rulemaking would not 
have significant takings implications. This proposed rule would make 
only minor changes to 43 CFR part 2. A takings implication assessment 
is not required.

6. 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 
would 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.

 7. Civil Justice Reform (E.O. 12988)

    This proposed rule complies with the requirements of Executive 
Order 12988. Specifically, this proposed rule:
    (a) Would not unduly burden the 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.

8. Consultation With Indian Tribes (E.O. 13175)

    In accordance with Executive Order 13175, the Department of the 
Interior has evaluated this proposed rule and determined that it would 
have no substantial effects on federally recognized Indian Tribes.

9. Paperwork Reduction Act

    This rulemaking does not require an information collection from 10 
or more parties and a submission under the Paperwork Reduction Act is 
not required.

10. National Environmental Policy Act

    This rulemaking does not constitute a major Federal action and 
would not have a significant effect on the quality of the human 
environment. Therefore, this proposed rule does not require the 
preparation of an environmental assessment or environmental impact 
statement under the requirements of the National Environmental Policy 
Act of 1969.

11. 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.

[[Page 46558]]

12. Clarity of This Regulation

    We are required by Executive Order 12866 and 12988, the Plain 
Writing Act of 2010 (H.R. 946), and the Presidential Memorandum of June 
1, 1998, to write all rulemaking in plain language. This means each 
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, Classified information, 
Courts, Freedom of information, Government employees, Privacy.

    Dated: July 18, 2013.
Rhea Suh,
Assistant Secretary for Policy, Management and Budget.

    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. Revise Sec.  2.254 to read as follows:


Sec.  2.254  Exemptions.

    (a) Criminal law enforcement records exempt under 5 U.S.C. 
552a(j)(2). Pursuant to 5 U.S.C. 552a(j)(2) the following systems of 
records have been exempted from all of the provisions of 5 U.S.C. 552a 
and the regulations in the subpart except paragraphs (b), (c)(1) and 
(2), (e)(4)(A) through (F), (e)(6), (7), (9), (10), and (11), and (i) 
of 5 U.S.C. 552a and the portions of the regulations in this subpart 
implementing these paragraphs:
    (1) Investigative Records, Interior/Office of Inspector General--2.
    (2) Incident Management, Analysis and Reporting System, DOI-10.
    (b) Law enforcement records exempt under 5 U.S.C. 552a(k)(2). 
Pursuant to 5 U.S.C. 552a(k)(2), 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) Investigative Records, Interior/Office of Inspector General--2.
    (2) Permits System, Interior/FWS-21.
    (3) Civil Trespass Case Investigations, Interior/BLM-19.
    (4) Employee Conduct Investigations, Interior/BLM-20.
    (5) [Reserved]
    (6) [Reserved]
    (7) Employee Financial Irregularities, Interior/NPS-17.
    (8) Trespass Cases, Interior/Reclamation-37.
    (9) Litigation, Appeal and Case Files System, Interior/Office of 
the Solicitor-1 to the extent that it consists of investigatory 
material compiled for law enforcement purposes.
    (10) Endangered Species Licenses System, Interior/FWS-19.
    (11) Timber Cutting and Trespass Claims Files, Interior/BIA-24.
    (12) Incident Management, Analysis and Reporting System, DOI-10.
    (c) Investigatory records exempt under 5 U.S.C. 552a(k)(5), the 
following systems of records have been exempted from subsections 
(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 subsections:
    (1) [Reserved]
    (2) National Research Council Grants Program, Interior/GS-9
    (3) Committee Management Files, Interior/Office of the Secretary--
68.

[FR Doc. 2013-18223 Filed 7-31-13; 8:45 am]
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