[Federal Register Volume 81, Number 190 (Friday, September 30, 2016)]
[Proposed Rules]
[Pages 67267-67270]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-23707]
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DEPARTMENT OF THE INTERIOR
Bureau of Safety and Environmental Enforcement
43 CFR Part 2
[Docket ID: BSEE-2016-0001; 167E1700D2 EEAA010000 ET1EX0000.SZH000]
RIN 1014-AA29
Privacy Act Regulations; Exemption for the Investigations Case
Management System
AGENCY: Bureau of Safety and Environmental Enforcement, Interior.
ACTION: Proposed rule.
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SUMMARY: The Department of the Interior is amending its regulations to
exempt certain records in the Investigations Case Management System
from one or more provisions of the Privacy Act because of civil and
administrative law enforcement requirements.
DATES: Submit written comments on or before November 29, 2016.
[[Page 67268]]
ADDRESSES: You may submit comments on this proposed rulemaking by any
of the following methods. Please use the Regulation Identifier Number
(RIN) 1014-AA29 as an identifier in your comments. BSEE may post all
submitted comments, in their entirety, at: www.regulations.gov.
1. Federal eRulemaking Portal: www.regulations.gov. In the search
box, enter ``BSEE-2016-0001,'' then click search. Follow the
instructions to submit public comments and view supporting and related
materials available for this rulemaking.
2. Mail or hand-carry comments to the Department of the Interior
(DOI); Bureau of Safety and Environmental Enforcement; ATTN:
Regulations and Standards Branch; 45600 Woodland Road, Mail Code VAE-
ORP; Sterling, VA 20166. Please reference ``Privacy Act Exemptions for
the Investigations Case Management System, 1014-AA29,'' in your
comments and include your name and return address.
FOR FURTHER INFORMATION CONTACT: Rowena Dufford, Bureau of Safety and
Environmental Enforcement Privacy Act Officer, 45600 Woodland Road,
Mail Stop VAE-MSD, Sterling, VA 20166. Email at
[email protected].
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 records about individuals that are 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), (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(k).
The Department of the Interior (DOI) Bureau of Safety and
Environmental Enforcement (BSEE) created the ``Investigations Case
Management System (CMS), BSEE-01'', system of records to enable BSEE to
conduct and document civil administrative investigations related to
incidents, operations of the Outer Continental Shelf (OCS), and
employee misconduct investigations. The CMS will store, track, and
analyze reportable injuries, the loss or damage of property, possible
violations of Federal laws and regulations, and investigation
information related to operations on the OCS to identify safety
concerns or environmental risks. The CMS will contain investigatory
materials related to possible criminal activity and referrals to
internal and external law enforcement organizations as appropriate for
investigation.
Incident and non-incident data related to activity occurring on the
OCS collected in support of investigations, regulatory enforcement,
homeland security, and security (physical, personnel, stability,
environmental, and industrial) activities may include data documenting
investigation activities, enforcement recommendations, recommendation
results, property damage, injuries, fatalities, and analytical or
statistical reports. The CMS will also provide information for BSEE
management to make informed decisions on recommendations for
enforcement, civil penalties, and other administrative actions.
In this notice of proposed rulemaking, DOI is proposing to exempt
portions of the CMS system of records from certain provisions of the
Privacy Act pursuant to 5 U.S.C. 552a(k)(2) because of civil and
administrative law enforcement requirements. 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).''
Because this system of records contains investigative matters
compiled for law enforcement purposes under the provisions of 5 U.S.C.
552a(k)(2), the Department of the Interior plans to exempt portions of
the CMS system of records from one or more of the following provisions:
5 U.S.C. 552a(c)(3), (d), (e)(1), (e)(4)(G), (H) and (I), and (f).
Where a release would not interfere with or adversely affect
investigations or 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 required by the Privacy Act
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; and lead to the
improper influencing of witnesses, the destruction of evidence, or the
fabrication of testimony.
2. 5 U.S.C. 552(d); (e)(4)(G) and (e)(4)(H); and (f). 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 the CMS system of records could inform
the subject of an investigation of the existence of that investigation,
the nature and scope of the information and evidence obtained, the
identity of confidential sources, witnesses, lead to the improper
influencing of witnesses, the destruction of evidence, or the
fabrication of testimony; and disclose investigative techniques and
procedures.
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 civil or administrative 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. 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. BSEE
investigators will refer information obtained outside of their civil or
administrative jurisdictions to the appropriate agency.
4. 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
[[Page 67269]]
of this section could disclose investigative techniques and procedures
and cause sources to refrain from giving such information because of
fear of reprisal. This could compromise BSEE's ability to conduct
investigations and to identify and detect violators.
Procedural Requirements
1. Regulatory Planning and Review (Executive Orders 12866 and 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 rule 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. DOI
developed this rule in a manner consistent with these requirements.
2. Regulatory Flexibility Act
DOI 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 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.
3. Small Business Regulatory Enforcement Fairness Act (SBREFA)
This rule is not a major rule under 5 U.S.C. 804(2), the Small
Business Regulatory Enforcement Fairness Act. This 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.
4. Unfunded Mandates Reform Act
This 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 rule does not have a significant or
unique effect on State, local, or tribal governments or the private
sector. This 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.
5. Takings (E.O. 12630)
In accordance with Executive Order 12630, the rule does not have
significant takings implications. The rule is not a governmental action
capable of interference with constitutionally protected property
rights. This rule makes 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 rule does not have
any federalism implications to warrant the preparation of a Federalism
Assessment. The 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.
7. Civil Justice Reform (E.O. 12988)
This rule complies with the requirements of Executive Order 12988.
Specifically, this rule:
(a) Does 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 rule and determined that it would have no
substantial effects on federally recognized Indian Tribes.
9. Paperwork Reduction Act
This rule 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 (NEPA) of 1969
This rule does not constitute a major Federal Action significantly
affecting the quality of the human environment. A detailed statement
under the National Environmental Policy Act of 1969 (NEPA) is not
required because the rule is covered by a categorical exclusion. This
rule meets the criteria set forth in 43 CFR 46.210(i), 516 Departmental
Manual 15.4C(1), and the BSEE Interim NEPA Policy Document 2013-09, for
a categorical exclusion. The rule's administrative effects are to
exempt CMS from certain provisions of the Privacy Act pursuant to 5
U.S.C. 552a(k)(2) because of civil and administrative law enforcement
requirements and therefore would not have any environmental impacts.
BSEE also analyzed this proposed rule to determine if it involves any
of the extraordinary circumstances set forth in 43 CFR 46.215 that
would require an environmental assessment or an environmental impact
statement for actions otherwise eligible for a categorical exclusion.
BSEE concluded that this rule does not meet any of the criteria for
extraordinary circumstances.
11. Data Quality Act
In developing this rule, there was no need to conduct or use a
study, experiment, or survey requiring peer review under the Data
Quality Act (Pub. L. 106-554).
12. Effects on Energy Supply (E.O. 13211)
This rule is not a significant energy action under the definition
in Executive Order 13211, and it is not likely to have a significant
adverse effect on the supply, distribution, or use of energy. A
Statement of Energy Effects is not required.
13. 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 rules 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
[[Page 67270]]
--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.
Dated: September 7, 2016.
Kristen J. Sarri,
Principal Deputy 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
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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.
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2. Amend Sec. 2.254 to add paragraph (b)(18) to read as follows:
Sec. 2.254 Exemptions.
* * * * *
(b) * * *
(18) Investigations Case Management System (CMS), BSEE-01.
[FR Doc. 2016-23707 Filed 9-29-16; 8:45 am]
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