Federal Register / Vol. 87, No. 33 / Thursday, February 17, 2022 / Rules and Regulations 8957 

[FR Doc. 2022–03456 Filed 2–16–22; 8:45 am] 

BILLING CODE 6560–50–P 

DEPARTMENT OF HEALTH AND 

HUMAN SERVICES 

45 CFR Part 5b 

[Docket Number NIH–2016–0002] 

RIN 0925–AA62 

Privacy Act; Implementation 

AGENCY: Department of Health and 

Human Services. 

ACTION: Final rule. 

SUMMARY: The Department of Health and 

Human Services (HHS or Department) is 

issuing this final rule to make effective 

the exemptions that were previously 

proposed for a subset of records covered 

in a new Privacy Act system of records, 

No. 09–25–0165, NIH Loan Repayment 

Records, which is maintained by the 

National Institutes of Health (NIH). The 

system of records covers records used to 

manage and evaluate the Loan 

Repayment Programs (LRPs) at NIH. The 

exemptions are necessary to maintain 

the integrity of the NIH peer review and 

award processes by enabling NIH to 

protect the identities of reviewers. 

DATES: This final rule is effective 

February 17, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Dustin Close, Office of Management 

Assessment, National Institutes of 

Health, 6705 Rockledge Drive, Suite 

601, Bethesda, Maryland 20892, 

telephone 301–402–6469, email 

privacy@mail.nih.gov. 

SUPPLEMENTARY INFORMATION: The NIH 

Loan Repayment Programs (LRPs) are 

administered by the Division of Loan 

Repayment (DLR) within NIH’s Office of 

Extramural Research. DLR provides 

repayment of student loans for approved 

applicants to encourage outstanding 

health professionals to pursue careers in 

biomedical, behavioral, social, and 

clinical research. Research health 

professionals who owe qualified 

educational debt and who meet 

eligibility criteria may apply for student 

loan repayment. A peer review process 

recommends applicants for loan 

repayments. The peer review process is 

committee-based, with a peer review 

group comprised of individual 

reviewers, referees, or other 

recommenders (hereafter collectively 

referred to as Reviewers). Reviewers are 

primarily non-government experts 

qualified by training and experience in 

scientific or technical fields, or as 

authorities knowledgeable in disciplines 

and fields related to the areas under 

review. Reviewers give DLR expert 

recommendations and materials (such 

as ratings, summaries, and 

communications) about applicants’ 

suitability, eligibility, or qualifications 

for student loan repayments under 

express promises that the Reviewers 

will not be identified as the sources of 

the information. DLR uses the 

information solely for the purpose of 

determining applicants’ suitability, 

eligibility, or qualifications for Federal 

loan repayment. System of records 09– 

25–0165 covers records about health 

professionals who apply for student 

loan repayments and about other 

categories of individuals who are related 

to the applications. These records 

include material that could reveal the 

identity of the Reviewers either directly 

or indirectly. 

Under the Privacy Act of 1974, as 

amended (Privacy Act, 5 U.S.C. 552a, or 

‘‘Privacy Act’’), individuals have a right 

of access to records about themselves in 

Federal agency systems of records, and 

other rights with respect to those 

records (such as notification, 

amendment, and an accounting of 

disclosures), but the Act permits certain 

types of systems of records (identified in 

section 552a(j) and (k)) to be exempted 

from certain requirements of the Act. 

Subsection (k)(5) permits the head of an 

agency to promulgate rules to exempt 

from the requirements in subsections 

(c)(3) and (d)(1) through (4) of the Act 

investigatory material compiled solely 

for the purpose of determining 

suitability, eligibility, or qualifications 

for Federal contracts, to the extent that 

the disclosure of such material would 

reveal the identity of a source who 

furnished information to the Federal 

Government under an express promise 

that the identity of the source would be 

held in confidence. 

In accordance with the Privacy Act, 

HHS/NIH proposed to exempt material 

that would identify a confidential 

source in system of records 09–25–0165 

from the notification, access, and 

amendment requirements of the Act 

pursuant to subsection (k)(5) of the Act, 

as described in a notice of proposed 

rulemaking (NPRM) published in the 

Federal Register (86 FR 2633) for public 

comment on January 13, 2021. The 

agency also published a modified notice 

describing system of records 09–25– 

0165 (SORN) in the Federal Register (86 

FR 2677) for public comment the same 

day. The 60-day public comment period 

provided for both the SORN and the 

NRPM expired March 15, 2021. Thirteen 

comments were received on the NPRM 

and no comments were received on the 

SORN. The comments received 

applauded NIH’s efforts to exempt 

material that would identify Reviewers 

contained within the system of records 

as specified in the notice. Additionally, 

none of the commentors recommended 

any changes to the proposed exemptions 

or the SORN. Therefore, HHS/NIH has 

made no changes to the proposed 

exemptions in the NPRM or to the 

SORN. 

NIH believes the exemptions are 

necessary to maintain the integrity of 

the NIH peer review and award 

processes. Protecting Reviewer 

identities as the sources of the 

information they provide protects them 

from harassment, intimidation, and 

other attempts to improperly influence 

award outcomes, and ensures that they 

are not reluctant to provide sensitive 

information or frank assessments. Case 

law has held that exemptions 

promulgated under subsection (k)(5) 

may protect source-identifying material 

even where the identity of the source is 

known. Therefore, NIH solicits 

Reviewers to assess applicants for loan 

repayment programs under an express 

promise of confidentiality. 

The specific rationales that support 

the exemptions concerning each 

affected Privacy Act provision, are as 

follows: 

• Subsection (c)(3). An exemption 

from the requirement to provide an 

accounting of disclosures to record 

subjects is needed to protect the identity 

of any Reviewer who is expressly 

promised confidentiality. Providing an 

accounting of disclosures to an 

applicant could identify specific 

Reviewers as sources of 

recommendations or evaluative input 

received, or to be received, on the 

application. Inappropriately revealing 

the Reviewers’ identities in association 

with the nature and scope of their 

assessments or evaluations could lead 

them to alter or destroy their 

assessments or evaluations or subject 

them to harassment, intimidation, or 

other improper influence, which would 

impede or compromise the fairness and 

objectivity of the loan repayment 

application review process; constitute 

an unwarranted invasion of the personal 

privacy of the Reviewer; and violate the 

express promise of confidentiality made 

to the Reviewer. 

• Subsection (d)(1). An exemption 

from the access requirement is needed 

both during and after an application 

review proceeding to avoid 

inappropriately revealing the identity of 

the Reviewers. Protecting the Reviewers’ 

identities from access by record subjects 

is necessary to maintain the integrity of 

the review process. It ensures Reviewers 

provide candid assessments or 


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8958 Federal Register / Vol. 87, No. 33 / Thursday, February 17, 2022 / Rules and Regulations 

evaluations to the Federal Government 

without fear that their identities as 

linked to a specific work product will be 

revealed inappropriately. Allowing an 

individual applicant who is the subject 

of an assessment or evaluation, or 

another record subject who has a 

relationship to the application, to access 

material that would reveal a Reviewer 

could lead Reviewers to alter or destroy 

their assessments or evaluations or 

subject them to harassment, 

intimidation, or other improper 

influence; interfere with or compromise 

the objectivity and fairness of award 

application review proceedings; 

constitute an unwarranted invasion of 

the personal privacy of the Reviewer; 

and violate the express promise of 

confidentiality made to the Reviewer. 

• Subsection (d)(2) through (4). An 

exemption from the amendment and 

appeal provisions is necessary while 

one or more related application review 

proceedings are pending, but only if and 

to the extent that disclosure of material 

in the amendment request and appeal 

process would reveal inappropriately 

the identity of any Reviewer who was 

expressly promised confidentiality. The 

exemption will be limited to allowing 

the agency, when processing an 

amendment request or the review of a 

refusal to amend a record, to avoid 

disclosing the existence of the record 

sought to be amended and its contents, 

if doing so would reveal the identity of 

a Reviewer. Revealing the identity of a 

Reviewer to an individual applicant or 

other subject individual could lead 

them to alter or destroy their 

assessments or evaluations or subject 

them to harassment, intimidation, or 

other improper influence; interfere with 

or compromise the objectivity and 

fairness of award application review 

proceedings; interfere with the agency’s 

application review process; constitute 

an unwarranted invasion of the personal 

privacy of the Reviewer; and violate the 

express promise of confidentiality made 

to the Reviewer. 

Accordingly, pursuant to 5 U.S.C. 

552a(k)(5), NIH is exempting records 

about LRP applicants in system of 

records 09–25–0165 NIH Division of 

Loan Repayment Record System from 

the access, amendment, and accounting 

of disclosures provisions of the Privacy 

Act (5 U.S.C. 552a(c)(3) and (d)(1) 

through (4)), to the extent necessary to 

protect material in the records furnished 

under an express promise that the 

identity of the source would be held in 

confidence, based on the specific 

rationales discussed above. 

In the case of a request for access to, 

or amendment of, a record in the DLR 

Record System from an individual 

covered by the system of records, NIH 

will withhold only material that would 

inappropriately reveal the identities of 

Reviewers who provide 

recommendations and evaluative input 

to NIH about particular award 

applications under an express promise 

that their identities would be held in 

confidence. This includes only material 

that would reveal a particular Reviewer 

as the author of a specific work product 

(e.g., reference or recommendation 

letters, reviewer critiques, preliminary 

or final individual overall scores, 

assignment of Reviewers to an 

application); and it includes not only a 

Reviewer’s name but any content that 

could enable the Reviewer to be 

identified from context, such as the 

Reviewer’s institutional affiliation, title, 

or specific comment that might allow an 

applicant to deduce the Reviewer’s 

identity. 

Notwithstanding the exemptions, NIH 

will consider any request for access or 

amendment that is addressed to the 

System Manger as provided in the 

SORN for system of records 09–25– 

0165, and NIH will consider any request 

for an accounting of disclosures. 

The Federal Register notice 

containing the SORN proposed for new 

system of records 09–25–0165 (86 FR 

2677), published January 13, 2021, 

provides for the SORN to be effective 

upon publication of this final rule. 

HHS/NIH made no changes to the SORN 

in response to public comments and, 

therefore, the SORN, as published at 86 

FR 2677, is now effective. 

Analysis Impacts 

I. Review Under Executive Orders 12866 

and 13563 

The agency has reviewed this rule 

under Executive Orders 12866, 

Regulatory Planning and Review (58 FR 

51735, September 30, 1993), and 13563, 

Improving Regulation and Regulatory 

Review (76 FR 3821, January 18, 2011), 

which direct agencies to assess costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to maximize the net benefits. 

The agency believes that this rule is not 

a significant regulatory action under 

Executive Order 12866, because it will 

not (1) have an annual effect on the 

economy of $100 million or more or 

adversely affect in a material way the 

economy, a sector of the economy, 

productivity, competition, jobs, the 

environment, public health or safety, or 

state, local or tribal governments or 

communities; (2) create a serious 

inconsistency or otherwise interfere 

with an action taken or planned by 

another agency; (3) materially alter the 

budgetary impact of entitlements, 

grants, user fees or loan programs, or the 

rights and obligations of recipients 

thereof; or (4) raise novel legal or policy 

issues arising out of legal mandates, the 

President’s priorities, or the principles 

set forth in Executive Order 12866. This 

rule removes certain Privacy Act rights 

from the subjects of these records in 

accordance with criteria established in 

the Privacy Act at 5 U.S.C. 552a(k)(5). 

This decision is based on a showing that 

agency compliance with all the Privacy 

Act requirements with respect to those 

records would harm the effectiveness or 

integrity of the agency function or 

process for which the records are 

maintained (in this case, NIH research 

and development loan award processes). 

Thus, this agency believes that a 

regulatory impact analysis is not 

required. 

II. Review Under the Regulatory 

Flexibility Act (5 U.S.C. 601–612) 

The Regulatory Flexibility Act 

requires agencies to analyze regulatory 

options that would minimize any 

significant regulatory impacts of a rule 

on small entities. Because the rule 

imposes no duties or obligations on 

small entities, we have determined, and 

the Director certifies, that the rule will 

not have a significant economic impact 

on a substantial number of small 

entities. 

III. Review Under the Unfunded 

Mandates Reform Act of 1995 (Section 

202, Public Law 104–4) 

Section 202(a) of the Unfunded 

Mandates Reform Act of 1995 requires 

agencies to prepare a written statement, 

which includes an assessment of 

anticipated costs and benefits, before 

proposing ‘‘any rule that includes any 

Federal mandate that may result in the 

expenditure by state, local, and tribal 

governments, in the aggregate, or by the 

private sector, of $100,000,000 or more 

(adjusted annually for inflation) in any 

one year.’’ The current threshold after 

adjustment for inflation is $156 million, 

using the most current (2020) Implicit 

Price Deflator for the Gross Domestic 

Product. The agency does not expect 

that this final rule will result in any 1- 

year expenditure by state, local, and 

tribal governments that will meet or 

exceed this amount. 

IV. Review Under the Paperwork 

Reduction Act of 1995 (44 U.S.C. 35–1 

et seq.) 

This rule does not contain any 

information collection requirements 

subject to the Paperwork Reduction Act. 


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Federal Register / Vol. 87, No. 33 / Thursday, February 17, 2022 / Rules and Regulations 8959 

V. Review Under Executive Order 

13132, Federalism 

This rule will not have any 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. Therefore, 

the requirements of Executive Order 

13132 are inapplicable. 

List of Subjects in 45 CFR Part 5b 

Privacy. 

For the reasons set out in the 

preamble, the Department amends part 

5b of title 45 of the Code of Federal 

Regulations as follows: 

PART 5b—PRIVACY ACT 

REGULATIONS 

■ 1. The authority citation for part 5b 

continues to read as follows: 

Authority: 5 U.S.C. 301, 5 U.S.C. 552a. 

■ 2. Amend § 5b.11 by adding paragraph 

(b)(3) to read as follows: 

§ 5b.11 Exempt systems. 

* * * * * 

(b) * * * 

(3) The following systems of records 

are exempt from 5 U.S.C. 552a(c)(3) and 

§ 5b.9(c)(3), which require a subject 

individual to be granted access to an 

accounting of disclosures of a record; 

and from 5 U.S.C. 552a(d)(1) through (4) 

and §§ 5b.5, 5b.7, and 5b.8, relating to 

notification of or access to records and 

correction or amendment of records. 

(i) Pursuant to subsection (k)(5) of the 

Privacy Act: 

(A) NIH Division of Loan Repayment 

Record System, 09–25–0165. 

(B) [Reserved] 

(ii) [Reserved] 

* * * * * 

Xavier Becerra, 

Secretary, Department of Health and Human 

Services. 

[FR Doc. 2022–03473 Filed 2–16–22; 8:45 am] 

BILLING CODE 4140–01–P 

FEDERAL COMMUNICATIONS 

COMMISSION 

47 CFR Part 73 

DA 22–128; FRS 71904] 

Radio Broadcasting Services; Various 

Locations 

AGENCY: Federal Communications 

Commission. 

ACTION: Final rule. 

SUMMARY: This document amends the 

FM Table of Allotments, of the Federal 

Communications Commission’s 

(Commission) rules, by designating as 

unreserved the FM allotment channels 

that are reserved for noncommercial 

educational (‘‘NCE’’) use in various 

communities. The FM allotments are 

vacant as a result of the dismissal of an 

application or cancellation of the 

authorization or license. We classify as 

unreserved these NCE channels that are 

in the commercial band (Channels 221 

to 300) by operation of law. These FM 

allotment channels have previously 

undergone notice and comment 

rulemaking. This action constitutes an 

editorial change in the FM Table of 

Allotments. Therefore, we find for good 

cause that further notice and comment 

are unnecessary. 

DATES: Effective February 17, 2022. 

FOR FURTHER INFORMATION CONTACT: 

Rolanda F. Smith, Media Bureau, (202) 

418–2700. 

SUPPLEMENTARY INFORMATION: This is a 

synopsis of the Commission’s Order, 

adopted February 9, 2022 and released 

February 9, 2022. The full text of this 

Commission decision is available online 

at https://apps.fcc.gov/ecfs/. This 

document does not contain information 

collection requirements subject to the 

Paperwork Reduction Act of 1995, 

Public Law 104–13. The Commission 

will not send a copy of the Order in a 

report to be sent to Congress and the 

Government Accountability Office 

pursuant to the Congressional Review 

Act, see 5 U.S.C. 801(a)(1)(A) because 

the Order is a ministerial action. 

List of Subjects in 47 CFR Part 73 

Radio, Radio broadcasting. 

Federal Communications Commission. 

Nazifa Sawez, 

Assistant Chief, Audio Division, Media 

Bureau. 

Final Rules 

For the reasons discussed in the 

preamble, the Federal Communications 

Commission amends 47 CFR part 73 as 

follows: 

PART 73—RADIO BROADCAST 

SERVICES 

■ 1. The authority citation for part 73 

continues to read as follows: 

Authority: 47 U.S.C. 154, 155, 301, 303, 

307, 309, 310, 334, 336, 339. 

■ 2. In § 73.202, amend table 1 to 

paragraph (b) by: 

■ a. Revise the entry for ‘‘Pima’’ under 

Arizona; 

■ b. Revise the entry for ‘‘Olathe’’ under 

Colorado; 

■ c. Revise the entry for ‘‘Otter Creek’’ 

under Florida; 

■ d. Add the entry ‘‘Weiser’’ under 

Idaho; 

■ e. Revise the entries for ‘‘Cedarville,’’ 

‘‘Greenup,’’ and ‘‘Pinckneyville’’ under 

Illinois; 

■ f. Add the entry ‘‘Columbus’’ in 

alphabetical order and revise the entries 

for ‘‘Fowler’’ and ‘‘Madison’’ under 

Indiana; 

■ g. Under Iowa: 

■ i. Revise the entries for ‘‘Asbury’’ and 

‘‘Keosauqua’’; 

■ ii. Add the entry ‘‘Moville’’ in 

alphabetical order; and 

■ iii. Revise the entry for ‘‘Rudd’’; 

■ h. Revise the entry for ‘‘Council 

Grove’’ under Kansas; 

■ i. Revise the entry for ‘‘Golden 

Meadow’’ under Louisiana; 

■ j. Revise the entry for ‘‘West Tisbury’’ 

under Massachusetts; 

■ k. Revise the entry for ‘‘Cordell’’ and 

add the entry for ‘‘Weatherford’’ in 

alphabetical order under Oklahoma; 

■ l. Revise the entry for ‘‘Liberty’’ under 

Pennsylvania; 

■ m. Add the entry for ‘‘Denver City’’ in 

alphabetical order and revise the entry 

for ‘‘Van Alstyne’’ under Texas; 

■ n. Revise the entry for ‘‘Oak Harbor’’ 

under Washington; 

■ o. Revise the entries for ‘‘Ashland’’ 

and ‘‘Hayward’’ under Wisconsin; 

■ p. Revise the entry for ‘‘Jackson’’ 

under Wyoming; and 

■ q. Revise the second entry for 

‘‘Charlotte Amalie’’ under U.S. 

Territories, Virgin Islands. 

The revisions and additions read as 

follows: 

§ 73.202 Table of Allotments. 

* * * * * 

(b) * * * 

TABLE 1 TO PARAGRAPH (b) 

U.S. States Channel No. 

* * * * * 

ARIZONA 

* * * * * 

Pima ...................................... 296A 

* * * * * 

COLORADO 

* * * * * 

Olathe ................................... 270C2, 293C 

* * * * * 

FLORIDA 

* * * * * 

Otter Creek ........................... 240A 


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