This section of the FEDERAL REGISTER

contains notices to the public of the proposed

issuance of rules and regulations. The

purpose of these notices is to give interested

persons an opportunity to participate in the

rule making prior to the adoption of the final

rules.

Proposed Rules Federal Register

44642 

Vol. 86, No. 154 

Friday, August 13, 2021 

FEDERAL RETIREMENT THRIFT 

INVESTMENT BOARD 

5 CFR Part 1630 

Privacy Act: Proposed Exemptions 

AGENCY: Federal Retirement Thrift 

Investment Board. 

ACTION: Notice of proposed rulemaking. 

SUMMARY: In accordance with the 

Privacy Act of 1974, the Federal 

Retirement Thrift Investment Board 

(FRTIB) proposes to exempt five 

systems of records from certain 

requirements of the Act. FRTIB has 

previously published System of Records 

Notices (SORNs) for these systems. 

DATES: Comments on this notice of 

proposed rulemaking must be received 

by September 13, 2021. 

ADDRESSES: You may submit written 

comments to FRTIB through the 

following methods: 

• Federal eRulemaking Portal: 

https://www.regulations.gov. Follow the 

website instructions for submitting 

comments. 

• Fax: 202–942–1676. 

• Mail or Hand Delivery: Office of 

General Counsel, Federal Retirement 

Thrift Investment Board, 77 K Street NE, 

Suite 1000, Washington, DC 20002. 

FOR FURTHER INFORMATION CONTACT: 

Dharmesh Vashee, General Counsel and 

Senior Agency Official for Privacy, 

Federal Retirement Thrift Investment 

Board, Office of General Counsel, 77 K 

Street NE, Suite 1000, Washington, DC 

20002, (202) 942–1600. 

SUPPLEMENTARY INFORMATION: FRTIB 

proposes to revise its Privacy Act 

regulations at 5 CFR part 1630 to 

exempt five of its systems of records, 

FRTIB–2, FRTIB–13, FRTIB–14, FRTIB– 

15, and FRTIB–23, from certain 

requirements of the Privacy Act, 5 

U.S.C. 552a. The FRTIB is promulgating 

exemptions to the Privacy Act for these 

five systems of records in accordance 

with subsection (k)(2) and subsection 

(k)(5). 

Subsection (k)(2) of the Privacy Act 

authorizes the head of an agency to 

exempt a system of records from the 

applicable subsections if investigatory 

records are compiled for law 

enforcement purposes; provided, 

however if an individual is denied any 

right, privilege, or benefit that he or she 

would otherwise be entitled by Federal 

law, or for which he or she would 

otherwise be eligible, as a result of the 

maintenance of such material, such 

material shall be provided to such 

individual, except to the extent that the 

disclosure of such material would reveal 

the identity of a source who furnished 

information to the Government under an 

express promise that the identity of the 

source would be held in confidence. 

Subsection (k)(5) of the Privacy Act 

authorizes the head of an agency to 

exempt a system of records from the 

applicable subsections if investigatory 

records are compiled solely for the 

purpose of determining suitability, 

eligibility, or qualifications for Federal 

civilian employment, military service, 

Federal contracts, or access to classified 

information, but only to the extent that 

the disclosure of such material would 

reveal the identity of a source who 

furnished information to the 

Government under an express promise 

that the identity of the source would be 

held in confidence. 

Under the Privacy Act, individuals 

have a right of access to information 

pertaining to them which is contained 

in a system of records. At the same time, 

the Privacy Act permits certain types of 

systems to be exempt from some Privacy 

Act requirements. If an agency claims an 

exemption, however, it must issue a 

Notice of Proposed Rulemaking to make 

clear to the public the reasons why a 

particular exemption is being claimed. 

As indicated in the Agency’s 

accompanying Privacy Act system of 

records notices proposing and 

modifying these systems of records, 

these five systems of records contain 

information collected by the Agency in 

the course of carrying out its duties 

under 5 U.S.C. 8401. 

The FRTIB is promulgating 

exemptions under subsections (k)(2) and 

(k)(5) for FRTIB–2, Personnel Security 

Investigation Files. FRTIB–2 contains 

information compiled by the Agency in 

order to document and support 

decisions regarding clearance for access 

to sensitive FRTIB information and the 

suitability, eligibility, and fitness for 

service of applicants for federal 

employment and contract positions. 

FRTIB has previously published a 

SORN for this system in the Federal 

Register, 85 FR 43654, 43655 (July 21, 

2020). FRTIB’s personnel investigations 

records fall under the exemption stated 

within subsection (k)(2) of the Privacy 

Act because these records may be used 

to help streamline and make more 

efficient the investigations and 

adjudications process, and may be used 

to document security violations and 

actions taken in response to such 

violations. FRTIB’s personnel 

investigations records also fall under the 

exemption stated within subsection 

(k)(5) of the Privacy Act because these 

records are compiled for the purpose of 

determining suitability, eligibility, or 

qualifications for Federal civilian 

employment, military service, Federal 

contracts, or access to classified 

information. FRTIB proposes to exempt 

eligible records contained within 

FRTIB–2 from the requirements of 

subsections (c)(3); (d); (e)(1); (e)(4)(G), 

(H), (I); and (f), which require agencies 

to provide an accounting of disclosures; 

provide notification, access, and 

amendment rights, rules, and 

procedures; maintain only relevant and 

necessary information; and identify 

categories of record sources. Exempting 

records from this system is necessary 

and appropriate to maintain the 

integrity of personnel investigations and 

to ensure that FRTIB’s efforts to obtain 

accurate and objective information will 

be successful. To the extent that FRTIB 

uses investigatory material within this 

system of records as a basis for denying 

an individual any right, privilege, or 

benefit to which an individual would be 

entitled in the absence of that record, 

FRTIB will grant that individual access 

to the material except to the extent that 

access would reveal the identity of a 

source promised confidentiality. 

The FRTIB is promulgating 

exemptions under subsection (k)(2) for 

FRTIB–13, Fraud and Forgery Records. 

FRTIB–13 contains information 

compiled by the Agency in the course 

of carrying out its fiduciary duties to 

detect and prevent fraudulent activity 

against participant accounts. FRTIB has 

previously published a SORN for this 

system in the Federal Register, 84 FR 

12249 (April 1, 2019), and a notice of 

proposed rulemaking for the 

exemptions, 84 FR 12954 (April 3, 

2019). This notice of proposed 


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Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 / Proposed Rules 44643 

rulemaking supersedes the previous 

notice. FRTIB’s fraud and forgery 

records fall under the exemption stated 

within subsection (k)(2) of the Privacy 

Act because these records are compiled 

for law enforcement purposes. FRTIB 

proposes to exempt eligible records 

contained within FRTIB–13 from the 

requirements of subsections (c)(3); (d); 

(e)(1); (e)(4)(G), (H), (I); and (f), which 

require agencies to provide an 

accounting of disclosures; provide 

notification, access, and amendment 

rights, rules, and procedures; maintain 

only relevant and necessary 

information; and identify categories of 

record sources. Exempting records from 

this system is necessary and appropriate 

to maintain the integrity of FRTIB’s 

investigations into allegations of fraud 

or forgery and to ensure that FRTIB’s 

efforts to obtain accurate and objective 

information will be successful. To the 

extent that FRTIB uses investigatory 

material within this system of records as 

a basis for denying an individual any 

right, privilege, or benefit to which an 

individual would be entitled in the 

absence of that record, FRTIB will grant 

that individual access to the material 

except to the extent that access would 

reveal the identity of a source promised 

confidentiality. 

The FRTIB is promulgating 

exemptions under subsection (k)(2) for 

FRTIB–14, Legal Case Files. FRTIB–14 

contains information compiled by the 

Agency in the course of its duties to 

provide legal advice to FRTIB personnel 

and respond appropriately to claims and 

litigation. FRTIB has previously 

published a SORN for this system in the 

Federal Register, 85 FR 43654, 43666 

(July 21, 2020). FRTIB’s legal case files 

fall under the exemption stated within 

subsection (k)(2) of the Privacy Act 

because these records may be compiled 

for law enforcement purposes. FRTIB 

proposes to exempt eligible records 

contained within FRTIB–14 from the 

requirements of subsections (c)(3); (d); 

(e)(1); (e)(4)(G), (H), (I); and (f), which 

require agencies to provide an 

accounting of disclosures; provide 

notification, access, and amendment 

rights, rules, and procedures; maintain 

only relevant and necessary 

information; and identify categories of 

record sources. Exempting records from 

this system is necessary and appropriate 

to maintain the integrity of FRTIB’s 

legal case files and to ensure that 

FRTIB’s efforts to obtain accurate and 

objective information will be successful. 

To the extent that FRTIB uses 

investigatory material within this 

system of records as a basis for denying 

an individual any right, privilege, or 

benefit to which an individual would be 

entitled in the absence of that record, 

FRTIB will grant that individual access 

to the material except to the extent that 

access would reveal the identity of a 

source promised confidentiality. 

The FRTIB is promulgating 

exemptions under subsection (k)(2) for 

FRTIB–15, Internal Investigations of 

Harassment and Hostile Work 

Environment Allegations. FRTIB–15 

contains information compiled by the 

Agency in the course of upholding 

FRTIB’s policy to provide for a work 

environment free from all forms of 

harassment. FRTIB has previously 

published a SORN for this system in the 

Federal Register, 85 FR 43654, 43669 

(July 21, 2020). FRTIB’s internal 

investigations and hostile work 

environment allegations files fall under 

the exemption stated within subsection 

(k)(2) of the Privacy Act because these 

records may be compiled for law 

enforcement purposes. FRTIB proposes 

to exempt eligible records contained 

within FRTIB–15 from the requirements 

of subsections (c)(3); (d); (e)(1); (e)(4)(G), 

(H), (I); and (f), which require agencies 

to provide an accounting of disclosures; 

provide notification, access, and 

amendment rights, rules, and 

procedures; maintain only relevant and 

necessary information; and identify 

categories of record sources. Exempting 

records from this system is necessary 

and appropriate to maintain the 

integrity of FRTIB’s legal case files and 

to ensure that FRTIB’s efforts to obtain 

accurate and objective information will 

be successful. To the extent that FRTIB 

uses investigatory material within this 

system of records as a basis for denying 

an individual any right, privilege, or 

benefit to which an individual would be 

entitled in the absence of that record, 

FRTIB will grant that individual access 

to the material except to the extent that 

access would reveal the identity of a 

source promised confidentiality. 

The FRTIB is promulgating 

exemptions under subsection (k)(2) for 

FRTIB–23, Insider Threat Program 

Records. FRTIB–23 contains 

information compiled by the Agency in 

the course of performing insider threat 

program functions. The FRTIB has 

published a SORN for this system in the 

Federal Register, 86 FR 40564 (July 28, 

2021). Insider threat program records 

fall under the exemption stated within 

subsection (k)(2) of the Privacy Act 

because these records are compiled for 

law enforcement purposes. FRTIB 

proposes to exempt eligible records 

contained within FRTIB–23 from the 

requirements of subsections (c)(3); (d); 

(e)(1); (e)(4)(G), (H), (I); and (f), which 

require agencies to provide an 

accounting of disclosures; provide 

notification, access, and amendment 

rights, rules, and procedures; maintain 

only relevant and necessary 

information; and identify categories of 

record sources. Exempting records from 

this system is necessary and appropriate 

to maintain the integrity of FRTIB’s 

investigations into allegations of insider 

threats and to ensure that FRTIB’s 

efforts to obtain accurate and objective 

information will be successful. To the 

extent that FRTIB uses investigatory 

material within this system of records as 

a basis for denying an individual any 

right, privilege, or benefit to which an 

individual would be entitled in the 

absence of that record, FRTIB will grant 

that individual access to the material 

except to the extent that access would 

reveal the identity of a source promised 

confidentiality. 

These exemptions apply only to the 

extent that information in this system is 

subject to exemption pursuant to 5 

U.S.C. 552a(k). Where FRTIB 

determines compliance would not 

appear to interfere with or adversely 

affect the purpose of this system to 

investigate and prevent insider threats, 

the applicable exemption may be 

waived by FRTIB in its sole discretion. 

Exemptions from the particular 

subsections are necessary and 

appropriate, and justified for the 

following reasons: 

• 5 U.S.C. 552a(c)(3) (the requirement 

to provide accountings of disclosures) 

and 5 U.S.C. 552a(d)(1)–(4) 

(requirements addressing notification, 

access, and amendment rights, 

collectively referred to herein as access 

requirements). Providing individuals 

with notification, access, and 

amendment rights with respect to 

allegations and investigations into 

personnel investigations, fraud against 

participant accounts, legal case files, 

internal investigations of harassment 

and hostile work environment 

allegations, or investigations of potential 

insider threats could reveal the 

existence of an investigation; 

investigative interest; investigative 

techniques; details about an 

investigation; security-sensitive 

information, such as information about 

security measures and security 

vulnerabilities; information that must 

remain non-public to protect personal 

privacy; identities of law enforcement 

personnel; or other sensitive or Privacy 

Act-protected information. Revealing 

such information to individuals could 

compromise or otherwise impede 

pending and future law enforcement 

investigations and efforts to protect 

sensitive information. Revealing such 

information could also violate personal 


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44644 Federal Register / Vol. 86, No. 154 / Friday, August 13, 2021 / Proposed Rules 

privacy. Additionally, revealing this 

information could enable individuals to 

evade detection and apprehension by 

security and law enforcement 

personnel; destroy, conceal, or tamper 

with evidence or fabricate testimony; or 

harass, intimidate, harm, coerce, or 

retaliate against witnesses, 

complainants, investigators, security 

personnel, law enforcement personnel, 

or their family members, their 

employees, or other individuals. With 

respect to investigatory material 

compiled for law enforcement purposes, 

the exemption pursuant to 5 U.S.C. 

552a(k)(2) from access requirements in 

subsection (d) of the Act is statutorily 

limited. If any individual is denied a 

right, privilege, or benefit to which the 

individual would otherwise be entitled 

by Federal law or for which the 

individual would otherwise be eligible, 

access will be granted, except to the 

extent that the disclosure would reveal 

the identity of a source who furnished 

the information to the Government 

under an express promise of 

confidentiality. 

• 5 U.S.C. 552a(e)(1) (the requirement 

to maintain only relevant and necessary 

information authorized by statute or 

Executive Order). It will not always be 

possible to determine at the time 

information is received or compiled in 

these systems of records whether the 

information is or will be relevant and 

necessary to a law enforcement 

investigation. For example, a tip or lead 

that does not initially appear relevant or 

necessary may prove useful when 

combined with other information that 

reveals a pattern or that comes to light 

later. 

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

requirements to describe procedures by 

which subjects may be notified of 

whether the system of records contains 

records about them and seek access or 

amendment of a record). These 

requirements concern individual access 

to records, and the records are exempt 

under subsections (c) and (d) of the Act, 

as described above. To the extent that 

subsection (e)(4)(G) and (H) are 

interpreted to require the Agency to 

promulgate more detailed procedures 

regarding record notification, access, or 

amendment than have been published 

in the Federal Register, exemption from 

those provisions is necessary for the 

same rationale as applies to subsections 

(c) and (d). 

• 5 U.S.C. 552a(e)(4)(I) (the 

requirement to describe the categories of 

record sources). To the extent that this 

subsection is interpreted to require a 

more detailed description regarding the 

record sources in this system than has 

been published in the Federal Register, 

exemption from this provision is 

necessary to protect the sources of law 

enforcement and intelligence 

information and to protect the privacy 

and safety of witnesses and informants 

and others who provide information to 

FRTIB or as part of the Thrift Savings 

Plan (TSP). Further, because records 

used to complete personnel 

investigations, investigate and prosecute 

allegations of fraud and forgery against 

participant accounts, pursue legal 

claims, pursue internal investigations of 

harassment or hostile work environment 

allegations, or investigate and prosecute 

allegations of insider threats could come 

from any source, it is not possible to 

know every category in advance in order 

to list them all in FRTIB’s 

accompanying SORN. Some record 

source categories may not be 

appropriate to make public in the SORN 

if, for example, revealing them could 

enable individuals to discover 

investigative techniques and devise 

ways to bypass them to evade detection 

and apprehension. 

• 5 U.S.C. 552a(f) (the requirement to 

promulgate rules to implement 

provisions of the Privacy Act). To the 

extent that this subsection is interpreted 

to require agency rules addressing the 

aforementioned exempted requirements, 

exemption from this provision is also 

necessary to protect the sources of law 

enforcement and intelligence 

information and to protect the privacy 

and safety of witnesses and informants 

and others who provide information to 

FRTIB or as part of the TSP. 

Regulatory Flexibility Act 

FRTIB certifies that this proposed 

regulation will not have a significant 

economic impact on a substantial 

number of small entities under the 

Regulatory Flexibility Act (5 U.S.C. 601, 

et seq.). This rulemaking does not 

impose a requirement for small 

businesses to report or keep records on 

any of the requirements contained in 

this proposed rule. The exemptions to 

the Privacy Act apply to individuals, 

and individuals are not covered entities 

under the Regulatory Flexibility Act. 

Paperwork Reduction Act 

I certify that these proposed 

regulations do not require additional 

reporting under the criteria of the 

Paperwork Reduction Act. 

Unfunded Mandates Reform Act of 

1995 

Pursuant to the Unfunded Mandates 

Reform Act of 1995, 2 U.S.C. 602, 632, 

653, 1501 1571, the effects of this 

proposed regulation on state, local, and 

tribal governments and the private 

sector have been assessed. This 

proposed regulation will not compel the 

expenditure in any one year of $100 

million or more by state, local, and 

tribal governments, in the aggregate, or 

by the private sector. Therefore, a 

statement under § 1532 is not required. 

List of Subjects in 5 CFR Part 1630 

Privacy. 

Ravindra Deo, 

Executive Director, Federal Retirement Thrift 

Investment Board. 

Accordingly, FRTIB proposes to 

amend 5 CFR part 1630 as follows: 

PART 1630—PRIVACY ACT 

REGULATIONS 

■ 1. The authority citation for part 1630 

continues to read as follows: 

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

■ 2. Amend § 1630.15 by revising 

paragraph (b) to read as follows: 

§ 1630.15 Exemptions. 

* * * * * 

(b) Those designated systems of 

records which are exempt from the 

requirements of subsections (c)(3); (d); 

(e)(1); (e)(4)(G), (H), (I); and (f) of the 

Privacy Act, 5 U.S.C. 552a, include 

FRTIB–2, Personnel Security 

Investigation Files; FRTIB–13, Fraud 

and Forgery Records; FRTIB–14, FRTIB 

Legal Case Files; FRTIB–15, Internal 

Investigations of Harassment and 

Hostile Work Environment Allegations; 

and FRTIB–23, Insider Threat Program 

Records. 

* * * * * 

[FR Doc. 2021–16435 Filed 8–12–21; 8:45 am] 

BILLING CODE 6760–01–P 

DEPARTMENT OF AGRICULTURE 

Agricultural Marketing Service 

7 CFR Part 925 

[Doc. No.: AMS–SC–21–0049; SC21–925–2 

PR] 

Amendments to the Marketing Order of 

Grapes Grown in a Southeastern 

California 

AGENCY: Agricultural Marketing Service, 

USDA. 

ACTION: Proposed rule. 

SUMMARY: This rule invites comments 

on proposed amendments to Marketing 

Order No. 925, which regulates the 

handling of grapes grown in a 

designated area of southeastern 

California. Proposed amendments 

would change the California Desert 


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