`[Congressional Bills 109th Congress]
[From the U.S. Government Publishing Office]
[H.R. 2840 Reported in House (RH)]







                                                 Union Calendar No. 408
109th CONGRESS
  2d Session
                                H. R. 2840

                          [Report No. 109-675]

  To amend title 5, United States Code, to require that agencies, in 
promulgating rules, take into consideration the impact of such rules on 
          the privacy of individuals, and for other purposes.


_______________________________________________________________________


                    IN THE HOUSE OF REPRESENTATIVES

                              June 9, 2005

  Mr. Chabot (for himself, Mr. Nadler, Mr. Cannon, and Mr. Delahunt) 
 introduced the following bill; which was referred to the Committee on 
                             the Judiciary

                           September 25, 2006

    Additional sponsors: Mr. Boucher, Mr. McDermott, Mr. Kennedy of 
                        Minnesota, and Mr. Paul

                           September 25, 2006

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed
 [Strike out all after the enacting clause and insert the part printed 
                               in italic]
[For text of introduced bill, see copy of bill as introduced on June 9, 
                                 2005]

_______________________________________________________________________

                                 A BILL


 
  To amend title 5, United States Code, to require that agencies, in 
promulgating rules, take into consideration the impact of such rules on 
          the privacy of individuals, and for other purposes.

    Be it enacted by the Senate and House of Representatives of the 
United States of America in Congress assembled,

SECTION 1. SHORT TITLE.

    This Act may be cited as the ``Federal Agency Protection of Privacy 
Act of 2005''.

SEC. 2. REQUIREMENT THAT AGENCY RULEMAKING TAKE INTO CONSIDERATION 
              IMPACTS ON INDIVIDUAL PRIVACY.

    (a) In General.--Title 5, United States Code, is amended by adding 
after section 553 the following new section:
``Sec. 553a. Privacy impact assessment in rulemaking
    ``(a) Initial Privacy Impact Assessment.--
            ``(1) In general.--Whenever an agency is required by 
        section 553 of this title, or any other law, to publish a 
        general notice of proposed rulemaking for a proposed rule, or 
        publishes a notice of proposed rulemaking for an interpretative 
        rule involving the internal revenue laws of the United States, 
        and such rule or proposed rulemaking pertains to the 
        collection, maintenance, use, or disclosure of personally 
        identifiable information from 10 or more individuals, other 
        than agencies, instrumentalities, or employees of the Federal 
        government, the agency shall prepare and make available for 
        public comment an initial privacy impact assessment that 
        describes the impact of the proposed rule on the privacy of 
        individuals. Such assessment or a summary thereof shall be 
        signed by the senior agency official with primary 
        responsibility for privacy policy and be published in the 
        Federal Register at the time of the publication of a general 
        notice of proposed rulemaking for the rule.
            ``(2) Contents.--Each initial privacy impact assessment 
        required under this subsection shall contain the following:
                    ``(A) A description and analysis of the extent to 
                which the proposed rule will impact the privacy 
                interests of individuals, including the extent to which 
                the proposed rule--
                            ``(i) provides notice of the collection of 
                        personally identifiable information, and 
                        specifies what personally identifiable 
                        information is to be collected and how it is to 
                        be collected, maintained, used, and disclosed;
                            ``(ii) allows access to such information by 
                        the person to whom the personally identifiable 
                        information pertains and provides an 
                        opportunity to correct inaccuracies;
                            ``(iii) prevents such information, which is 
                        collected for one purpose, from being used for 
                        another purpose; and
                            ``(iv) provides security for such 
                        information, including the provision of written 
                        notice to any individual, within 14 days of the 
                        date of compromise, whose privacy interests are 
                        compromised by the unauthorized release of 
                        personally identifiable information as a result 
                        of a breach of security at or by the agency.
                    ``(B) A description of any significant alternatives 
                to the proposed rule which accomplish the stated 
                objectives of applicable statutes and which minimize 
                any significant privacy impact of the proposed rule on 
                individuals.
    ``(b) Final Privacy Impact Assessment.--
            ``(1) In general.--Whenever an agency promulgates a final 
        rule under section 553 of this title, after being required by 
        that section or any other law to publish a general notice of 
        proposed rulemaking, or promulgates a final interpretative rule 
        involving the internal revenue laws of the United States, and 
        such rule or proposed rulemaking pertains to the collection, 
        maintenance, use, or disclosure of personally identifiable 
        information from 10 or more individuals, other than agencies, 
        instrumentalities, or employees of the Federal government, the 
        agency shall prepare a final privacy impact assessment, signed 
        by the senior agency official with primary responsibility for 
        privacy policy.
            ``(2) Contents.--Each final privacy impact assessment 
        required under this subsection shall contain the following:
                    ``(A) A description and analysis of the extent to 
                which the final rule will impact the privacy interests 
                of individuals, including the extent to which such 
                rule--
                            ``(i) provides notice of the collection of 
                        personally identifiable information, and 
                        specifies what personally identifiable 
                        information is to be collected and how it is to 
                        be collected, maintained, used, and disclosed;
                            ``(ii) allows access to such information by 
                        the person to whom the personally identifiable 
                        information pertains and provides an 
                        opportunity to correct inaccuracies;
                            ``(iii) prevents such information, which is 
                        collected for one purpose, from being used for 
                        another purpose; and
                            ``(iv) provides security for such 
                        information, including the provision of written 
                        notice to any individual, within 14 days of the 
                        date of compromise, whose privacy interests are 
                        compromised by the unauthorized release of 
                        personally identifiable information as a result 
                        of a breach of security at or by the agency.
                    ``(B) A summary of any significant issues raised by 
                the public comments in response to the initial privacy 
                impact assessment, a summary of the analysis of the 
                agency of such issues, and a statement of any changes 
                made in such rule as a result of such issues.
                    ``(C) A description of the steps the agency has 
                taken to minimize the significant privacy impact on 
                individuals consistent with the stated objectives of 
                applicable statutes, including a statement of the 
                factual, policy, and legal reasons for selecting the 
                alternative adopted in the final rule and why each one 
                of the other significant alternatives to the rule 
                considered by the agency which affect the privacy 
                interests of individuals was rejected.
            ``(3) Availability to public.--The agency shall make copies 
        of the final privacy impact assessment available to members of 
        the public and shall publish in the Federal Register such 
        assessment or a summary thereof.
    ``(c) Waivers.--
            ``(1) Emergencies.--An agency head may waive or delay the 
        completion of some or all of the requirements of subsections 
        (a) and (b) to the same extent as the agency head may, under 
        section 608, waive or delay the completion of some or all of 
        the requirements of sections 603 and 604, respectively.
            ``(2) National security.--An agency head may, for national 
        security reasons, or to protect from disclosure classified 
        information, confidential commercial information, or 
        information the disclosure of which may adversely affect a law 
        enforcement effort, waive or delay the completion of some or 
        all of the following requirements:
                    ``(A) The requirement of subsection (a)(1) to make 
                an assessment available for public comment, provided 
                that such assessment is made available, in classified 
                form, to the Committees on the Judiciary of the House 
                of Representatives and the Senate, in lieu of making 
                such assessment available to the public.
                    ``(B) The requirement of subsection (a)(1) to have 
                an assessment or summary thereof published in the 
                Federal Register, provided that such assessment or 
                summary is made available, in classified form, to the 
                Committees on the Judiciary of the House of 
                Representatives and the Senate, in lieu of publishing 
                such assessment or summary in the Federal Register.
                    ``(C) The requirements of subsection (b)(3), 
                provided that the final privacy impact assessment is 
                made available, in classified form, to the Committees 
                on the Judiciary of the House of Representatives and 
                the Senate, in lieu of making such assessment available 
                to the public and publishing such assessment in the 
                Federal Register.
    ``(d) Procedures for Gathering Comments.--When any rule is 
promulgated which may have a significant privacy impact on individuals, 
or a privacy impact on a substantial number of individuals, the head of 
the agency promulgating the rule or the official of the agency with 
statutory responsibility for the promulgation of the rule shall assure 
that individuals have been given an opportunity to participate in the 
rulemaking for the rule through techniques such as--
            ``(1) the inclusion in an advance notice of proposed 
        rulemaking, if issued, of a statement that the proposed rule 
        may have a significant privacy impact on individuals, or a 
        privacy impact on a substantial number of individuals;
            ``(2) the publication of a general notice of proposed 
        rulemaking in publications of national circulation likely to be 
        obtained by individuals;
            ``(3) the direct notification of interested individuals;
            ``(4) the conduct of open conferences or public hearings 
        concerning the rule for individuals, including soliciting and 
        receiving comments over computer networks; and
            ``(5) the adoption or modification of agency procedural 
        rules to reduce the cost or complexity of participation in the 
        rulemaking by individuals.
    ``(e) Periodic Review of Rules.--
            ``(1) In general.--Each agency shall carry out a periodic 
        review of the rules promulgated by the agency that have a 
        significant privacy impact on individuals, or a privacy impact 
        on a substantial number of individuals. Under such periodic 
        review, the agency shall determine, for each such rule, whether 
        the rule can be amended or rescinded in a manner that minimizes 
        any such impact while remaining in accordance with applicable 
        statutes. For each such determination, the agency shall 
        consider the following factors:
                    ``(A) The continued need for the rule.
                    ``(B) The nature of complaints or comments received 
                from the public concerning the rule.
                    ``(C) The complexity of the rule.
                    ``(D) The extent to which the rule overlaps, 
                duplicates, or conflicts with other Federal rules, and, 
                to the extent feasible, with State and local 
                governmental rules.
                    ``(E) The length of time since the rule was last 
                reviewed under this subsection.
                    ``(F) The degree to which technology, economic 
                conditions, or other factors have changed in the area 
                affected by the rule since the rule was last reviewed 
                under this subsection.
            ``(2) Plan required.--Each agency shall carry out the 
        periodic review required by paragraph (1) in accordance with a 
        plan published by such agency in the Federal Register. Each 
        such plan shall provide for the review under this subsection of 
        each rule promulgated by the agency not later than 10 years 
        after the date on which such rule was published as the final 
        rule and, thereafter, not later than 10 years after the date on 
        which such rule was last reviewed under this subsection. The 
        agency may amend such plan at any time by publishing the 
        revision in the Federal Register.
            ``(3) Annual publication.--Each year, each agency shall 
        publish in the Federal Register a list of the rules to be 
        reviewed by such agency under this subsection during the 
        following year. The list shall include a brief description of 
        each such rule and the need for and legal basis of such rule 
        and shall invite public comment upon the determination to be 
        made under this subsection with respect to such rule.
    ``(f) Judicial Review.--
            ``(1) In general.--For any rule subject to this section, an 
        individual who is adversely affected or aggrieved by final 
        agency action is entitled to judicial review of agency 
        compliance with the requirements of subsections (b) and (c) in 
        accordance with chapter 7. Agency compliance with subsection 
        (d) shall be judicially reviewable in connection with judicial 
        review of subsection (b).
            ``(2) Jurisdiction.--Each court having jurisdiction to 
        review such rule for compliance with section 553, or under any 
        other provision of law, shall have jurisdiction to review any 
        claims of noncompliance with subsections (b) and (c) in 
        accordance with chapter 7. Agency compliance with subsection 
        (d) shall be judicially reviewable in connection with judicial 
        review of subsection (b).
            ``(3) Limitations.--
                    ``(A) An individual may seek such review during the 
                period beginning on the date of final agency action and 
                ending 1 year later, except that where a provision of 
                law requires that an action challenging a final agency 
                action be commenced before the expiration of 1 year, 
                such lesser period shall apply to an action for 
                judicial review under this subsection.
                    ``(B) In the case where an agency delays the 
                issuance of a final privacy impact assessment pursuant 
                to subsection (c), an action for judicial review under 
                this section shall be filed not later than--
                            ``(i) 1 year after the date the assessment 
                        is made available to the public; or
                            ``(ii) where a provision of law requires 
                        that an action challenging a final agency 
                        regulation be commenced before the expiration 
                        of the 1-year period, the number of days 
                        specified in such provision of law that is 
                        after the date the assessment is made available 
                        to the public.
            ``(4) Relief.--In granting any relief in an action under 
        this subsection, the court shall order the agency to take 
        corrective action consistent with this section and chapter 7, 
        including, but not limited to--
                    ``(A) remanding the rule to the agency; and
                    ``(B) deferring the enforcement of the rule against 
                individuals, unless the court finds that continued 
                enforcement of the rule is in the public interest.
            ``(5) Rule of construction.--Nothing in this subsection 
        shall be construed to limit the authority of any court to stay 
        the effective date of any rule or provision thereof under any 
        other provision of law or to grant any other relief in addition 
        to the requirements of this subsection.
            ``(6) Record of agency action.--In an action for the 
        judicial review of a rule, the privacy impact assessment for 
        such rule, including an assessment prepared or corrected 
        pursuant to paragraph (4), shall constitute part of the entire 
        record of agency action in connection with such review.
            ``(7) Exclusivity.--Compliance or noncompliance by an 
        agency with the provisions of this section shall be subject to 
        judicial review only in accordance with this subsection.
            ``(8) Savings clause.--Nothing in this subsection bars 
        judicial review of any other impact statement or similar 
        assessment required by any other law if judicial review of such 
        statement or assessment is otherwise permitted by law.
    ``(g) Definition.--For purposes of this section, the term 
`personally identifiable information' means information that can be 
used to identify an individual, including such individual's name, 
address, telephone number, photograph, social security number or other 
identifying information. It includes information about such 
individual's medical or financial condition.''.
    (b) Periodic Review Transition Provisions.--
            (1) Initial plan.--For each agency, the plan required by 
        subsection (e) of section 553a of title 5, United States Code 
        (as added by subsection (a)), shall be published not later than 
        180 days after the date of the enactment of this Act.
            (2) Review period.--In the case of a rule promulgated by an 
        agency before the date of the enactment of this Act, such plan 
        shall provide for the periodic review of such rule before the 
        expiration of the 10-year period beginning on the date of the 
        enactment of this Act. For any such rule, the head of the 
        agency may provide for a 1-year extension of such period if the 
        head of the agency, before the expiration of the period, 
        certifies in a statement published in the Federal Register that 
        reviewing such rule before the expiration of the period is not 
        feasible. The head of the agency may provide for additional 1-
        year extensions of the period pursuant to the preceding 
        sentence, but in no event may the period exceed 15 years.
    (c) Congressional Review.--Section 801(a)(1)(B) of title 5, United 
States Code, is amended--
            (1) by redesignating clauses (iii) and (iv) as clauses (iv) 
        and (v), respectively; and
            (2) by inserting after clause (ii) the following new 
        clause:
            ``(iii) the agency's actions relevant to section 553a;''.
    (d) Clerical Amendment.--The table of sections at the beginning of 
chapter 5 of title 5, United States Code, is amended by adding after 
the item relating to section 553 the following new item:

``553a. Privacy impact assessment in rulemaking.''.
                                                 Union Calendar No. 408

109th CONGRESS

  2d Session

                               H. R. 2840

                          [Report No. 109-675]

_______________________________________________________________________

                                 A BILL

  To amend title 5, United States Code, to require that agencies, in 
promulgating rules, take into consideration the impact of such rules on 
          the privacy of individuals, and for other purposes.

_______________________________________________________________________

                           September 25, 2006

  Reported with an amendment, committed to the Committee of the Whole 
       House on the State of the Union, and ordered to be printed`