4404 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules

DEPARTMENT OF ENERGY

10 CFR PART 1008

RIN 1901–AA62

Privacy Act of 1974; Records

Maintained on Individuals

AGENCY: Department of Energy.

ACTION: Notice of proposed rulemaking.

SUMMARY: The Department of Energy

(DOE) proposes to amend its Privacy

Act regulations by adding a system of

records to the list of systems exempted

from certain subsections of the Act.

Exemption from certain subsections is

needed to enable the Office of Inspector

General (OIG) to perform its duties and

responsibilities.

The new system of records will be

entitled ‘‘Allegation-Based Inspections

Files of the Office of Inspector General,’’

and will allow the Office of Inspector

General to perform its functions

mandated by statute, regulation or

executive order. The system will

maintain documents collected in the

process of conducting inspections. An

Office of Inspector General inspection is

an examination of DOE or DOE

contractor organizations, programs,

projects, functions, or activities. The

proposed system of records will cover

only the files of inspections predicated

on allegations or complaints and which

identify subjects and sources of

information by name. Inspections

performed relate to sensitive allegations

of wrongdoing received concerning

certain individuals, including agency

and DOE contractor employees, or other

persons or entities with some

relationship to the agency. Allegations

include, but are not limited to, abuse of

authority; misuse of government time,

property, or position; conflicts of

interest, or other non-criminal

violations of law, rules, or regulations.

DATES: Written comments should be

submitted on or before March 31, 1997.

ADDRESS: Written comments should be

directed to: GayLa D. Sessoms, Director,

Freedom of Information Act and Privacy

Act Division, U.S. Department of

Energy, HR–78, 1000 Independence

Avenue, SW., Washington, DC 20585.

FOR FURTHER INFORMATION CONTACT:

GayLa D. Sessoms, Director, Freedom of

Information Act and Privacy Act

Division, U.S. Department of Energy,

HR–78, 1000 Independence Avenue,

SW, Washington, DC 20585, (202) 586–

5955; or Jacqueline M. Becker, Office of

Inspector General, U.S. Department of

Energy, IG–1, 1000 Independence

Avenue, SW, Washington, DC 20585,

(202) 586–4393; or Abel Lopez, Office of

General Counsel, U.S. Department of

Energy, GC–80, 1000 Independence

Avenue, SW, Washington, DC 20585,

(202) 586–8618.

SUPPLEMENTARY INFORMATION:

I. Background

II. Analysis

III. Procedural Requirements

A. Regulatory Review

B. Review Under Executive Order 12778

C. Review Under the Regulatory Flexibility

Act

D. Review Under the Paperwork Reduction

Act

E. Review Under Executive Order 12612

F. Review Under National Environmental

Policy Act

IV. Public Comments

I. Background

The Privacy Act of 1974, as amended,

at 5 U.S.C. 552a(k) provides that the

head of an agency may exempt an

agency system of records from certain

provisions of the Act. Accordingly, this

new system of records is added to the

list of systems exempted by the

Department of Energy from certain

subsections of the Act.

The purpose of this rule is to amend

the Department of Energy’s Privacy Act

regulations to enable the Office of

Inspector General to carry out its duties

and responsibilities as mandated by the

Inspector General Act. The Inspector

General is mandated to promote

economy, effectiveness, and efficiency

within the agency and to prevent and

detect fraud, waste and abuse in agency

programs and operations.

The Office of Inspections in the Office

of Inspector General compiles various

files that are collected and maintained

to assist in the performance of the

functions of the Office of Inspector

General. The Office of Inspections

performs various inspections and

analyses as required by the Office of

Inspector General. An inspection by the

Office of Inspector General is an

examination of a DOE or DOE contractor

organization, program, project, function,

or activity. The proposed system of

records will cover only the files of

inspections predicated on allegations or

complaints and which identify subjects

and sources of information by name.

Inspections performed relate to sensitive

allegations of wrongdoing received

concerning certain individuals,

including agency employees, or other

persons or entities with some

relationship to the agency and DOE

contractor. Allegations include, but are

not limited to, abuse of authority;

misuse of government time, property, or

position; conflicts of interest; or other

non-criminal violations of law, rules, or

regulations.

II. Analysis

The Department of Energy proposes to

exempt this system of records from

certain provisions of the Privacy Act

pursuant to subsections (k)(1) and (k)(2)

of the Act. The system of records is

exempt from the following subsections:

System Exempted From Certain

Provisions of the Act

Under subsections (k)(1) and (k)(2) of

the Privacy Act, this system of records

is exempt from the following

subsections: 5 U.S.C. 552a(c)(3), 5

U.S.C. 552a(d), 5 U.S.C. 552a(e)(1), 5

U.S.C. 552a(e)(4) (G) and (H), 5 U.S.C.

552a(f).

Exemption (k)(1) provides that the

head of an agency may exempt an

agency system of records from certain

provisions of the Privacy Act if the

system of records is subject to section

552(b)(1) of the Freedom of Information

Act, 5 U.S.C. 552. That section of the

Freedom of Information Act protects

from disclosure national security

information classified under an

Executive Order. The proposed system

of records will contain properly

classified national security information

in the OIG’s Allegation-Based

Inspections files.

The detailed reasons for exemptions

under 5 U.S.C. 552a(k)(1) follow:

(1) 5 U.S.C. 552a(c)(3) requires that,

upon request, an agency must give an

individual named in a record an

accounting which reflects the disclosure

of the record to other persons or

agencies. This accounting must state the

date, nature, and purpose of each

disclosure of the record and the name

and address of the recipient. The

Department of Energy has programs

involving classified material which may

be the subject of an Office of Inspections

review. The application of these

provisions to reviews involving

properly classified material could

disclose classified information. If this

classified material were disclosed, the

national security might be

compromised.

An example of an issue involving

classified security information would be

a review of the Department’s

maintenance or transportation of special

nuclear material. Such information

could be sought by terrorist groups.

Another example would be

Departmental work with intelligence

information obtained from other Federal

agencies.

(2) 5 U.S.C. 552a(d), (e)(4)(G) and (H),

and (f) relate to the following: An

individual’s right to be notified of the

existence of records pertaining to such

individual; requirements for identifying
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules 4405

an individual who requests access to or

amendment of records; and agency

procedures relating to access to and

amendment of records and the content

of information contained in such

records. If these provisions were applied

to classified material in the AllegationBased Inspections Files, this could (1)

interfere with inspections or inquiries

undertaken in connection with national

security; (2) disclose the identity of

sources kept secret to protect the

national security; (3) reveal classified

information supplied by these sources

to protect the national security; or (4)

generally violate the secrecy of the

classification.

The Office of Inspections also

conducts counterintelligence

administrative inquiries and

inspections. These reviews are

conducted to uncover clandestine

relationships, contacts with foreign

intelligence services, and other hostile

activities. Such actions could be

directed against Departmental facilities,

property, personnel, programs, and

contractors and contractor employees.

These hostile activities may be

conducted by foreign powers, foreign

organizations or their agents. In

conducting these reviews, the Office of

Inspections collects classified

information that if disclosed could

compromise Federal counterintelligence

activities.

The Office of Inspections may

compile information pertaining to

foreign energy matters. Disclosure of

this information could identify sensitive

sources and methods used by the

national intelligence community. The

Office of Inspections also may compile

information regarding classified

technology being developed by the

Department or other agencies.

Disclosure of this information could

identify sensitive Departmental projects

or operations that could be targets of

foreign intelligence service operations.

(3) 5 U.S.C. 552a(e)(1) requires each

agency to maintain in its records only

such information about an individual

that is relevant and necessary to

accomplish a purpose of the agency

required by statute or Executive Order.

The OIG does not create the material it

collects and thus has no control over the

content of that material.

There are additional reasons why

application of this provision could

impair inspections and interfere with

the statutory responsibilities of the OIG.

It is not always possible to detect the

relevance or necessity of specific

information in the early stages of an

inspection or inquiry. This applies

when an inspection or inquiry uses

properly classified information.

Relevance and necessity are questions of

judgment and timing, and it is only after

the information is evaluated that the

relevancy and necessity of such

information can be established.

Furthermore, information outside the

scope of the OIG’s jurisdiction may be

helpful in establishing patterns of

activities or problems or in developing

information that should be referred to

other entities. Such information cannot

always readily be segregated.

The detailed reasons for the

exemptions under 5 U.S.C. 552a (k)(2)

follow:

(1) 5 U.S.C. 552a(c)(3) requires that,

upon request, an agency must give an

individual named in a record an

accounting which reflects the disclosure

of the record to other persons or

agencies. This accounting must state the

date, nature and purpose of each

disclosure of the record, and the name

and address of the recipient. To apply

this provision would alert those who

may be the subjects of an inspection or

inquiry pertaining to an allegation or

complaint to the existence of the

inspection or inquiry, or that they are

the subjects of an inspection or inquiry.

Release of information to subjects of

such an inspection or inquiry could

provide the subject with significant

information concerning the nature of the

inspection or inquiry and could result

in the altering or destruction of

documentary evidence, improper

influencing of witnesses, and other

activities that could impede or

compromise the inspection or inquiry.

(2) 5 U.S.C. 552a(d), (e)(4)(G) and (H),

and (f) relate to the following: An

individual’s right to be notified of the

existence of records pertaining to such

individual; requirements for identifying

an individual who requests access to or

amendment of records; and agency

procedures relating to access to and

amendment of records and the content

of information contained in such

records. This system is exempt from the

foregoing provisions for the following

reasons: to notify an individual at the

individual’s request, of the existence of

records in an inspection file pertaining

to a complaint or allegation about the

individual or to grant access to this type

of inspection file could (1) interfere

with inspections proceedings predicated

on a complaint or allegation, (2)

constitute an unwarranted invasion of

the personal privacy of others, (3)

disclose the identity of confidential

sources and reveal confidential

information supplied by those sources,

or (4) disclose inspection techniques

and procedures.

In addition, this system is exempt

from paragraph (d)(2) of this section,

because to require the Office of the

Inspector General, to amend information

thought to be incorrect, irrelevant or

untimely, because of the nature of the

information collected and the essential

length of time it is maintained, would

create an impossible administrative and

investigative burden by forcing the

agency to continuously retrograde its

investigations attempting to resolve

questions of accuracy.

(3) 5 U.S.C. 552a(e)(1) requires each

agency to maintain in its records only

such information about an individual

that is relevant and necessary to

accomplish a purpose of the agency

required by statute or Executive Order.

An exemption from the foregoing is

needed because:

a. It is not always possible to detect

relevance or necessity of specific

information in the early stages of an

inspection involving a complaint or

allegation.

b. Relevance and necessity are

questions of judgment and timing. What

appears relevant and necessary when

collected ultimately may be deemed

unnecessary. It is only after the

information is evaluated or the case is

closed that the relevancy and necessity

of such information can be established.

c. In any inspection involving a

complaint or allegation, the Inspector

General may obtain information

concerning the violation of laws other

than those within the scope of the

Inspector General’s jurisdiction. In the

interest of effective law enforcement,

the Inspector General should be able to

retain this information to aid in

establishing patterns of program

violations or criminal activity, and

provide leads for those law enforcement

agencies charged with enforcing

criminal or civil law.

d. In conducting an inspection or

inquiry involving a complaint or

allegation, information obtained may

relate to the main purpose of the

inspection or inquiry and to matters

under the jurisdiction of another

agency. Such information is not

normally readily segregable.

III. Procedural Requirements

A. Regulatory Review

Today’s regulatory action has been

determined not to be a ‘‘significant

regulatory action’’ under Executive

Order 12866, ‘‘Regulatory Planning and

Review,’’ (58 FR 51735, October 4,

1993). Accordingly, today’s action was

not subject to review under the

Executive Order by the Office of

Information and Regulatory Affairs.
4406 Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules

B. Review Under Executive Order 12988

With respect to the review of existing

regulations and the promulgation of

new regulations, section 3(a) of

Executive Order 12988, ‘‘Civil Justice

Reform,’’ 61 FR 4729 (February 7, 1996),

imposes on Executive agencies the

general duty to adhere to the following

requirements: (1) Eliminate drafting

errors and ambiguity; (2) write

regulations to minimize litigation; and

(3) provide a clear legal standard for

affected conduct rather than a general

standard and promote simplification

and burden reduction. With regard to

the review required by section 3(a),

section 3(b) of Executive Order 12988

specifically requires that Executive

agencies make every reasonable effort to

ensure that the regulation: (1) Clearly

specifies the preemptive effect, if any;

(2) clearly specifies any effect on

existing Federal law or regulation; (3)

provides a clear legal standard for

affected conduct while promoting

simplification and burden reduction; (4)

specifies the retroactive effect, if any; (5)

adequately defines key terms; and (6)

addresses other important issues

affecting clarity and general

draftsmanship under any guidelines

issued by the Attorney General. Section

3(c) of Executive Order 12988 requires

Executive agencies to review regulations

in light of applicable standards in

section 3(a) and section 3(b) to

determine whether they are met or it is

unreasonable to meet one or more of

them. DOE has completed the required

review and determined that, to the

extent permitted by law, the proposed

regulations meet the relevant standards

of Executive Order 12988.

C. Review Under the Regulatory

Flexibility Act

This rule was reviewed under the

Regulatory Flexibility Act of 1980, Pub.

L. 96–354. The Regulatory Flexibility

Act requires the preparation of a

regulatory flexibility analysis for any

proposed rule which is likely to have a

significant economic impact on a

substantial number of small entities.

This rule will have no impact on

interest rates, tax policies or liabilities,

the cost of goods or services, or other

direct economic factors. The rule will

also not have any indirect economic

consequences such as changed

construction rates.

The Department of Energy certifies

that the proposed rule will not have a

significant economic impact on a

substantial number of small entities. No

regulatory flexibility analysis has been

prepared since there is no significant

impact on small entities.

D. Review Under the Paperwork

Reduction Act

No new information collection or

record keeping requirements are

imposed by this proposed rule. As a

result, no OMB clearance is required

under the Paperwork Reduction Act of

1980 (44 U.S.C. 3501 et seq.).

E. Review Under Executive Order 12612

Executive Order 12612, entitled

‘‘Federalism,’’ 52 FR 41685 (October 30,

1987), requires that regulations, rules,

legislation, and any other policy actions

be reviewed for any substantial direct

effects on States, on the relationship

between the Federal Government and

the States, or in the distribution of

power and responsibilities among

various levels of Government. If there

are sufficient substantial direct effects,

then the Executive Order requires

preparation of a federalism assessment

to be used in all decisions involved in

promulgating and implementing a new

policy action. The proposed rule will

not affect States, or the relationship

between the Federal Government and

the States, in any direct way.

F. Review Under the National

Environmental Policy Act

The proposed rulemaking would

amend the Department’s regulations that

implement the Privacy Act at 10 CFR

part 1008, ‘‘Records Maintained on

Individuals (Privacy Act),’’ by adding a

new system of records to the list of

systems exempted from certain

subsections of the Privacy Act. Under

the new system of records, the

Department would maintain documents

collected in inspections conducted by

the Office of Inspector General.

Implementation of the proposed rule

would only affect the manner in which

certain files are maintained and made

accessible to the public, and would not

result in environmental impacts. The

Department has therefore determined

that the proposed rule is covered under

the Categorical Exclusion found at

paragraph A.5 of appendix A to subpart

D, 10 CFR part 1021, which applies to

the amendment or interpretation of

existing regulation that does not change

the environmental effect of the rule

being amended. Accordingly, neither an

environmental assessment nor an

environmental impact statement is

required.

IV. Public Comments

Interested persons are invited to

participate by submitting data, views, or

comments with respect to the proposed

amendments to the Privacy Act

regulations of the Department of Energy

as set forth in this notice. Those

interested in participating should

submit three copies of written

comments to the individual whose

name is listed in the ‘‘ADDRESS’’

section of this notice. The regulatory

action does not involve any significant

issues of fact or law. 43 U.S.C. 7191(c).

Therefore, DOE is conducting this

proceeding under 5 U.S.C. 553 and has

decided that there is no need to

schedule a public hearing. All

comments received will be available for

public inspection in the Department of

Energy’s Freedom of Information Public

Reading Room, 1E–190, the Forrestal

Building, 1000 Independence Avenue,

SW, Washington, DC 20585, between

the hours of 9 a.m. and 4 p.m., Monday

through Friday except Federal holidays.

All written comments received by the

date listed in the DATES section of this

notice will be carefully assessed and

fully considered before the proposed

amendment is published as a final rule.

Any information considered to be

confidential must be so identified and

submitted in writing. Please submit only

one copy of such information. The

Department of Energy reserves the right

to determine the confidential status of

information identified as confidential.

The Department has concluded that

this proposed rule does not involve a

substantial issue of fact or law and that

the rule should not have substantial

impact on the nation’s economy or on

a large number of individuals or

businesses. Therefore, pursuant to the

Department of Energy Organization Act,

Pub.L. 95–91, the Department of Energy

does not plan to hold a public hearing

on this proposed rule.

List of Subjects in 10 CFR Part 1008

Privacy.

Issued in Washington, DC on December 31,

1996.

Archer L. Durham,

Assistant Secretary for Human Resources and

Administration.

For the reasons set forth in the

preamble, 10 CFR part 1008 is proposed

to be amended as set forth below:

PART 1008—RECORDS MAINTAINED

ON INDIVIDUALS (PRIVACY ACT)

1. The authority citation continues to

read as follows:

Authority: 42 U.S.C. 7101, et. seq.,

Executive Order 12091, (42 FR 46267), 5

U.S.C. 552a.

2. Section 1008.12 is amended by

adding paragraphs (b)(2)(ii)(M) and

(b)(3)(ii)(O) to read as follows:

§ 1008.12 Exemptions.

* * * * *
Federal Register / Vol. 62, No. 19 / Wednesday, January 29, 1997 / Proposed Rules 4407

(b) * * *

(2) * * *

(ii) * * *

(M) Allegation-Based Inspections

Files of the Office of Inspector General

(DOE–83).

(3) * * *

(ii) * * *

(O) Allegation-Based Inspections Files

of the Office of Inspector General (DOE–

83).

* * * * *

[FR Doc. 97–2178 Filed 1–28–97; 8:45 am]

BILLING CODE 6450–01–P