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[Federal Register Volume 89, Number 242 (Tuesday, December 17, 2024)]
[Rules and Regulations]
[Pages 101846-101850]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-29666]

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DEPARTMENT OF ENERGY

10 CFR Part 1008

[DOE-HQ-2024-0085]
RIN 1903-AA18

Privacy Act of 1974: Implementation of Exemptions

AGENCY: U.S. Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE or Department) is revising its 
regulations to exempt certain records maintained under a newly 
established system of records--DOE-85, Research, Technology, and 
Economic Security Due Diligence Review Records--from the notification 
and access provisions of the Privacy Act of 1974. The Department is 
exempting portions of this system of records from these subsections of 
the Privacy Act because of requirements related to classified 
information.

DATES: This final rule is effective on January 16, 2025.

FOR FURTHER INFORMATION CONTACT: Kyle David, U.S. Department of Energy, 
1000 Independence Avenue SW, Office 8H-085, Washington, DC, 20585; 
facsimile: (202) 586-8151; email: [email protected], telephone: 
(240) 686-9485.

SUPPLEMENTARY INFORMATION: 

Table of Contents

I. Authority and Background
    A. Authority
    B. Background
II. Discussion
III. Summary of Public Comments
IV. Section 1008.12 Analysis
V. Procedural Issues and Regulatory Review
    A. Review Under Executive Orders 12866, 13563, and 14094
    B. Review Under the Regulatory Flexibility Act
    C. Review Under the Paperwork Reduction Act of 1995
    D. Review Under the National Environmental Policy Act of 1969
    E. Review Under Executive Order 12988
    F. Review Under Executive Order 13132
    G. Review Under Executive Order 13175
    H. Review Under the Unfunded Mandates Reform Act of 1995
    I. Review Under Executive Order 12360
    J. Review Under Executive Order 13211
    K. Review Under the Treasury and General Government 
Appropriations Act, 1999
    L. Review Under the Treasury and General Government 
Appropriations Act, 2001
    M. Congressional Notification
VI. Approval by the Office of the Secretary of Energy

I. Authority and Background

A. Authority

    DOE has broad authority to manage the agency's collection, use, 
processing, maintenance, storage, and disclosure of Personally 
Identifiable Information (PII) pursuant to the following authorities: 
42 United States Code (U.S.C.) 7101 et seq., 50 U.S.C. 2401 et seq., 5 
U.S.C. 1104, 5 U.S.C. 552, 5 U.S.C. 552a, 42 U.S.C. 7254, 5 U.S.C. 301, 
and 42 U.S.C. 405 note.

B. Background

    The Privacy Act of 1974 (the Act) (5 U.S.C. 552a) embodies fair 
information practice principles in a statutory framework governing 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 is retrieved by the name of the 
individual or by some identifying number, symbol, or other identifying 
particular assigned to the individual. In the Privacy Act, an 
individual is defined to encompass U.S. citizens and lawful permanent 
residents.
    The Privacy Act includes two sets of provisions that allow agencies 
to claim exemptions from certain requirements in the statute. These 
provisions allow agencies in certain circumstances to promulgate rules 
to exempt a system of records from certain provisions of the Privacy 
Act. For this system of records, pursuant to 5 U.S.C. 552a(k)(1), the 
Department exempts this system of records from subsections (c)(3); (d); 
(e)(1), (e)(4)(G), (4)(H), and (4)(I); and (f) of the Privacy Act. This 
exemption is needed to protect information relating to DOE activities 
from disclosure to subjects or others related to these activities. 
Specifically, the exemption is required to safeguard classified 
information. Pursuant to the Privacy Act and Office of Management and 
Budget (OMB) Circular A-108, Federal Agency Responsibilities for 
Review, Reporting, and Publication under the Privacy Act, DOE is 
issuing this Rule to make clear to the public the reasons why this 
particular exemption is being applied.

II. Discussion

    The Department is exempting portions of a newly established system 
of records--DOE-85, Research, Technology, and Economic Security Due 
Diligence Review Records--from subsections (c)(3); (d); (e)(1), 
(e)(4)(G), (4)(H), and (4)(I); and (f) of the Privacy Act of 1974. To 
claim this exemption, DOE is amending 10 CFR 1008.12 by adding a new 
paragraph, (b)(1)(ii)(N). The Department exempts portions of this 
system of records from these subsections of the Privacy Act because of 
requirements related to classified information.
    The purpose of this system is to enhance DOE's capabilities to 
aggregate, link, analyze, and maintain information used by the 
Department to assess research, technology, and economic security (RTES) 
risk. RTES risks may include risk of foreign government interference 
and exploitation, intellectual property (IP) loss, national

[[Page 101847]]

security risk, conflicts of interest, and conflicts of commitment, and 
other parameters defined in DOE/National Nuclear Security 
Administration (NNSA) policy. The RTES analysis builds on pre-existing 
information provided by individuals and organizations that interact 
with DOE/NNSA, paired with public records, and in some cases, 
classified information. Consistent with National Security Presidential 
Memorandum-33 \1\ (NSPM-33), applicable law, and existing DOE/NNSA 
policies, the system records may be shared as appropriate with other 
Federal funding agencies and internally within DOE/NNSA to help ensure 
a coordinated and consistent approach to risk assessment.
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    \1\ National Security Presidential Memorandum on United States 
Government-Supported Research and Development National Security 
Policy 33, issued January 14, 2021.
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    For this system of records, the system is exempted from subsections 
(c)(3); (d); (e)(1), (e)(4)(G), (4)(H), and (4)(I); and (f) of the 
Privacy Act pursuant to 5 U.S.C. 552a(k)(1). This exemption is needed 
to protect information relating to DOE activities from disclosure to 
subjects or others related to these activities. Specifically, the 
exemption is required to safeguard classified information.
    This exemption is a standard national security exemption exercised 
by many Federal intelligence agencies. Although the RTES Office is not 
an intelligence agency, the system of records utilized by the RTES 
Office may include classified information obtained from Federal 
intelligence sources.
    Exemptions for DOE-85 Research, Technology, and Economic Security 
Due Diligence Review Records from this particular subsection of the 
Privacy Act are justified on a case-by-case basis to be determined at 
the time a request is made for the following reasons:
    From 5 U.S.C. 552a subsection (k)(1) because providing individuals 
access to classified information could cause serious damage to the 
national defense or foreign policy.
    On September 10, 2024, DOE published a notice of proposed 
rulemaking (NOPR) (89 FR 73312). This NOPR claimed the 5 U.S.C. 
552a(k)(1) exemption listed in the preceding paragraph. As a result of 
this NOPR, DOE received one comment, discussed in section III of this 
document.

III. Summary of Public Comments

    As mentioned in previously, DOE received one comment in response to 
the NOPR (DOE-HQ-2023-0058-0005). The commenter requested a clearer 
explanation of how conflicts of interest and commitment necessitate 
exemptions from the Privacy Act and for DOE to consider narrowing the 
scope of Privacy Act exemptions, particularly the exemption from 5 
U.S.C. 552a(e)(1). The commenter points out that the exemption from 5 
U.S.C. 522a(e)(1) is too broad and could result in the accumulation of 
unnecessary information, creating unintended consequences such as the 
misuse of personal information. Finally, the commenter also stated that 
Freedom of Information Act (FOIA) liability may also be triggered from 
people trying to get information they believe is held under exemption.
    As to the issue regarding conflicts of interest and commitment, DOE 
would like to clarify that the justification for exempting the system 
is based on the extent to which the system contains classified 
information. This is consistent with 10 CFR 1008.12(b)(1), where 5 
U.S.C. 552a(k)(1) applies to the system only ``to the extent [that the 
system] contain[s] classified information, in order to prevent serious 
damage to the national defense or foreign policy that could arise from 
providing individuals access to classified information.'' Determining 
if something is exempt will be done on a case-by-case basis, and if 
there is no classified information or national security information, 
then included information under 5 U.S.C. 552a(k)(1) would not be 
exempt.
    As to the commenters concerns that the exemption from 5 U.S.C. 
522a(e)(1) is too broad and could result in collection of irrelevant 
information, risking misuse of personal information, as well as 
concerns that the regulation could lead to legal challenges to 
withholding such information under FOIA, DOE respectfully disagrees. 
DOE makes clear in the NOPR and restates here, information within the 
system that meets the criteria of 5 U.S.C. 552a(k)(1) is exempted from 
disclosure from 5 U.S.C. 552a(e)(1) and the other identified 
provisions. Information that fails to meet such criteria is not 
exempted from the provision. Therefore, the exemption from 5 U.S.C. 
552a(e)(1) is sufficiently tailored for consistency with 10 CFR 
1008.12(b)(1), and determinations will be made on a case-by-case basis.

IV. Section 1008.12 Analysis

    This final rule amends 10 CFR 1008.12(b)(1)(ii), by adding 
paragraph (b)(1)(ii)(N), referencing line item ``(N) Research, 
Technology, and Economic Security Due Diligence Review Records (DOE-
85)'' to paragraph (b)(1)(ii). This addition will demonstrate that SORN 
DOE-85 is included among the other SORNs taking a 5 U.S.C. 552a (k)(1) 
exemption under the Privacy Act of 1974. This exemption allows DOE to 
``prevent serious damage to the national defense or foreign policy that 
could arise from providing individuals access to classified 
information.''

V. Procedural Issues and Regulatory Review

A. Review Under Executive Orders 12866, 13563, and 14094

    Executive Order (``E.O.'') 12866, ``Regulatory Planning and 
Review,'' 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by 
E.O. 13563, ``Improving Regulation and Regulatory Review,'' 76 FR 3821 
(Jan. 21, 2011) and amended by E.O. 14094, ``Modernizing Regulatory 
Review,'' 88 FR 21879 (April 11, 2023), requires agencies, to the 
extent permitted by law, to (1) propose or adopt a regulation only upon 
a reasoned determination that its benefits justify its costs 
(recognizing that some benefits and costs are difficult to quantify); 
(2) tailor regulations to impose the least burden on society, 
consistent with obtaining regulatory objectives, taking into account, 
among other things, and to the extent practicable, the costs of 
cumulative regulations; (3) select, in choosing among alternative 
regulatory approaches, those approaches that maximize net benefits 
(including potential economic, environmental, public health and safety, 
and other advantages; distributive impacts; and equity); (4) to the 
extent feasible, specify performance objectives, rather than specifying 
the behavior or manner of compliance that regulated entities must 
adopt; and (5) identify and assess available alternatives to direct 
regulation, including providing economic incentives to encourage the 
desired behavior, such as user fees or marketable permits, or providing 
information upon which choices can be made by the public. DOE 
emphasizes as well that E.O. 13563 requires agencies to use the best 
available techniques to quantify anticipated present and future 
benefits and costs as accurately as possible. In its guidance, the 
Office of Information and Regulatory Affairs (OIRA) has emphasized that 
such techniques may include identifying changing future compliance 
costs that might result from technological innovation or anticipated 
behavioral changes. For the reasons stated in this preamble, this final 
rule is consistent with these principles.
    Section 6(a) of E.O. 12866 requires agencies to submit 
``significant regulatory actions'' to OIRA for review.

[[Page 101848]]

OIRA has determined that this final rule is not a ``significant 
regulatory action'' within the scope of E.O. 12866. Accordingly, this 
action is not subject to review under E.O. 12866 by OIRA of the Office 
of Management and Budget (OMB).

B. Review Under the Regulatory Flexibility Act

    The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.) 
requires that an agency prepare an initial regulatory flexibility 
analysis for any regulation for which a final rule is required, unless 
the agency certifies that the rule, if promulgated, will not have a 
significant economic impact on a substantial number of small entities 
(5 U.S.C. 605(b)). As required by Executive Order 13272, Proper 
Consideration of Small Entities in Agency Rulemaking, 67 FR 53461 (Aug. 
16, 2002), DOE published procedures and policies on February 19, 2003, 
to ensure that the potential impacts of its rules on small entities are 
properly considered during the rulemaking process. 68 FR 7990. DOE has 
made its procedures and policies available on the Office of the General 
Counsel's website (www.energy.gov/gc/office-general-counsel).
    DOE reviewed this final rule under the provisions of the Regulatory 
Flexibility Act and the procedures and policies published on February 
19, 2003. DOE certifies that the final rule will not have significant 
economic impact on a substantial number of small entities. The factual 
basis for this certification is set forth below.
    This final rule will update DOE's policies and procedures 
concerning the disclosure of records held within a system of records 
pursuant to the Privacy Act of 1974. This final rule will apply only to 
activities conducted by DOE's Federal employees and contractors, who 
would be responsible for implementing the rule requirements. DOE does 
not expect there to be any potential economic impact of this final rule 
on small businesses. Small businesses, therefore, should not be 
adversely impacted by the requirements in this final rule. For these 
reasons, DOE certifies that this final rule will not have a significant 
economic impact on a substantial number of small entities, and 
therefore, no regulatory flexibility analysis has been prepared.

C. Review Under the Paperwork Reduction Act of 1995

    This final rule does not impose a collection of information 
requirement subject to review and approval by OMB under the Paperwork 
Reduction Act (44 U.S.C. 3501 et seq.).

D. Review Under the National Environmental Policy Act of 1969

    Pursuant to the National Environmental Policy Act of 1969 (NEPA), 
DOE has analyzed this action in accordance with NEPA and DOE's NEPA 
implementing regulations (10 CFR part 1021). DOE's regulations include 
a categorical exclusion (CX) for rulemakings interpreting or amending 
an existing rule or regulation that does not change the environmental 
effect of the rule or regulation being amended. 10 CFR part 1021, 
subpart D, appendix A, paragraph A5. DOE has determined that this final 
rule is covered under the CX found in DOE's NEPA regulations at 
paragraph A5 of appendix A to subpart D, 10 CFR part 1021, because it 
is an amendment to an existing regulation that does not change the 
environmental effect of the amended regulation and, therefore, meets 
the requirements for the application of this CX. See 10 CFR 1021.410. 
Therefore, DOE has determined that this final rule is not a major 
Federal action significantly affecting the quality of the human 
environment within the meaning of NEPA and does not require an 
Environmental Assessment or an Environmental Impact Statement.

E. 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 
Federal agencies the general duty to adhere to the following 
requirements: (1) eliminate drafting errors and ambiguity; (2) write 
regulations to minimize litigation; (3) provide a clear legal standard 
for affected conduct rather than a general standard; and (4) promote 
simplification and burden reduction. Section 3(b) of Executive Order 
12988 specifically requires that executive agencies make every 
reasonable effort to ensure 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 the 
affected conduct while promoting simplification and burden reduction; 
(4) specifies the retroactive effect, if any; (5) adequately defines 
key terms; (6) specifies whether administrative proceedings are to be 
required before parties may file suit in court and, if so, describes 
those proceedings and requires the exhaustion of administrative 
remedies; and (7) 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 the standards. DOE has completed 
the required review and determined that, to the extent permitted by 
law, this final rule meets the relevant standards of Executive Order 
12988.

F. Review Under Executive Order 13132

    Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 10, 
1999), imposes certain requirements on agencies formulating and 
implementing policies or regulations that preempt State law or that 
have federalism implications. Agencies are required to examine the 
constitutional and statutory authority supporting any action that would 
limit the policymaking discretion of the States and carefully assess 
the necessity for such actions. The Executive order also requires 
agencies to have an accountable process to ensure meaningful and timely 
input by State and local officials in the development of regulatory 
policies that have federalism implications. On March 14, 2000, DOE 
published a statement of policy describing the intergovernmental 
consultation process it will follow in the development of such 
regulations. 65 FR 13735. DOE has examined this final rule and has 
tentatively determined that it would not preempt State law and would 
not have a substantial direct effect 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. 
No further action is required by Executive Order 13132.

G. Review Under Executive Order 13175

    Under Executive Order 13175 (65 FR 67249, November 6, 2000) on 
``Consultation and Coordination with Indian Tribal Governments,'' DOE 
may not issue a discretionary rule that has ``Tribal'' implications and 
imposes substantial direct compliance costs on Indian Tribal 
governments. DOE has determined that this final rule will not have such 
effects and concluded that Executive Order 13175 does not apply to this 
final rule.

H. Review Under the Unfunded Mandates Reform Act of 1995

    Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub. 
L. 104-4) requires each Federal agency to assess the effects of a 
Federal regulatory action on State, local, and Tribal governments, and 
the private sector.

[[Page 101849]]

(Pub. L. 104-4, sec. 201 et seq. (codified at 2 U.S.C. 1531 et seq.)). 
For a regulatory action likely to result in a rule that may cause the 
expenditure by State, local, and Tribal governments, in the aggregate, 
or by the private sector of $100 million or more in any one year 
(adjusted annually for inflation), section 202 of UMRA requires a 
Federal agency to publish a written statement that estimates the 
resulting costs, benefits, and other effects on the national economy. 
(2 U.S.C. 1532(a), (b)) UMRA also requires a Federal agency to develop 
an effective process to permit timely input by elected officers of 
State, local, and Tribal governments on a ``significant Federal 
intergovernmental mandate,'' and requires an agency plan for giving 
notice and opportunity for timely input to potentially affected small 
governments before establishing any requirements that might 
significantly or uniquely affect them. On March 18, 1997, DOE published 
a statement of policy on its process for intergovernmental consultation 
under UMRA. (62 FR 12820) (This policy is also available at: 
www.energy.gov/gc/guidance-opinions under ``Guidance & Opinions'' 
(Rulemaking).) DOE examined this final rule according to UMRA and its 
statement of policy and has determined that this final rule contains 
neither an intergovernmental mandate, nor a mandate that may result in 
the expenditure by State, local, and Tribal governments, in the 
aggregate, or by the private sector, of $100 million or more in any 
year. Accordingly, no further assessment or analysis is required under 
UMRA.

I. Review Under Executive Order 12630

    DOE has determined, under Executive Order 12630, ``Governmental 
Actions and Interference with Constitutionally Protected Property 
Rights'' 53 FR 8859 (March 18, 1988), that this regulation would not 
result in any takings that might require compensation under the Fifth 
Amendment to the U.S. Constitution.

J. Review Under Executive Order 13211

    Executive Order 13211, ``Actions Concerning Regulations That 
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355 
(May 22, 2001), requires Federal agencies to prepare and submit to the 
OIRA, which is part of OMB, a Statement of Energy Effects for any 
significant energy action. A ``significant energy action'' is defined 
as any action by an agency that promulgates or is expected to lead to 
promulgation of a final rule, and that: (1)(i) is a significant 
regulatory action under Executive Order 12866, or any successor order; 
and (ii) is likely to have a significant adverse effect on the supply, 
distribution, or use of energy, or (2) is designated by the 
Administrator of OIRA as a significant energy action. For any 
significant energy action, the agency must give a detailed statement of 
any adverse effects on energy supply, distribution, or use should the 
proposal be implemented, and of reasonable alternatives to the action 
and their expected benefits on energy supply, distribution, and use. 
This regulatory action is not a significant energy action. Accordingly, 
DOE has not prepared a Statement of Energy Effects.

K. Review Under the Treasury and General Government Appropriations Act, 
1999

    Section 654 of the Treasury and General Government Appropriations 
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family 
Policymaking Assessment for any final rule that may affect family well-
being. This final rule would not have any impact on the autonomy or 
integrity of the family as an institution. Accordingly, DOE has 
concluded that it is not necessary to prepare a Family Policymaking 
Assessment.

L. Review Under the Treasury and General Government Appropriations Act, 
2001

    Section 515 of the Treasury and General Government Appropriations 
Act, 2001 (44 U.S.C. 3516) provides for Federal agencies to review most 
disseminations of information to the public under guidelines 
established by each agency pursuant to general guidelines issued by 
OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002), 
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002). 
Pursuant to OMB Memorandum M-19-15, Improving Implementation of the 
Information Quality Act (April 24, 2019), DOE published updated 
guidelines which are available at: www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf.
    DOE has reviewed this final rule and will ensure that information 
produced under this regulation remains consistent with the applicable 
OMB and DOE guidelines.

M. Congressional Review

    As required by 5 U.S.C. 801, DOE will report to Congress on the 
promulgation of this rule prior to its effective date. The report will 
state that the rule does not, meet the criteria set forth in 5 U.S.C. 
804(2).

VI. Approval by the Office of the Secretary of Energy

    The Secretary of Energy has approved publication of this Final 
rule.

List of Subjects in 10 CFR Part 1008

    Administration practice and procedure, Freedom of information, 
Privacy, Reporting and recordkeeping requirements.

Signing Authority

    This document of the Department of Energy was signed on December 
11, 2024, by Ann Dunkin, Senior Agency Official for Privacy, pursuant 
to delegated authority from the Secretary of Energy. That document with 
the original signature and date is maintained by DOE. For 
administrative purposes only, and in compliance with requirements of 
the Office of the Federal Register, the undersigned DOE Federal 
Register Liaison Officer has been authorized to sign and submit the 
document in electronic format for publication, as an official document 
of the Department of Energy. This administrative process in no way 
alters the legal effect of this document upon publication in the 
Federal Register.

    Signed in Washington, DC, on December 12, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.

    For the reasons set forth in the preamble, the Department of Energy 
amends part 1008 of chapter X of title 10 of the Code of Federal 
Regulations as set forth below:

PART 1008--RECORDS MAINTAINED ON INDIVIDUALS (PRIVACY ACT)

0
1. The authority citation for part 1008 continues to read as follows:

    Authority: 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; 5 
U.S.C. 552; 5 U.S.C. 552a; 42 U.S.C. 7254; and 5 U.S.C. 301. Section 
1008.22(c) also issued under 42 U.S.C. 405 note.

0
2. Amend Sec.  1008.12 by adding paragraph (b)(1)(ii)(N) to read as 
follows:

Sec.  1008.12  Exemptions.

* * * * *
    (b) * * *
    (1) * * *
    (ii) * * *

[[Page 101850]]

    (N) Research, Technology, and Economic Security Due Diligence 
Review Records (DOE-85).
* * * * *
[FR Doc. 2024-29666 Filed 12-16-24; 8:45 am]
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