07-3331. Privacy Act of 1974, Implementation of Exemptions

AGENCY:

United States Agency for International Development.

ACTION:

Proposed rule.

SUMMARY:

The United States Agency for International Development (USAID) is concurrently establishing a new system of records pursuant to the provisions of the Privacy Act of 1974 (5 U.S.C. 552a), entitled the “Partner Vetting System” (PVS). In this proposed rulemaking, USAID proposes to exempt portions of this system of records from one or more provisions of the Privacy Act because of criminal, civil, and administrative enforcement requirements.

DATES:

Submit comments on or before September 18, 2007.

ADDRESSES:

You may submit comments, identified by RIN 0412-AA61, by any of the following methods:

Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

Mail: U.S. Agency for International Development, Chief Privacy Officer, 1300 Pennsylvania Avenue NW., Room 2.12-003, Washington, DC 20523-2120.

Instructions: All submissions must include the title of the proposed action, and Regulatory Information Number (RIN) for this rulemaking. Please include your name, title, organization, postal address, telephone number, and e-mail address in the text of the message.

FOR FURTHER INFORMATION CONTACT:

Jeff Denale, Coordinator for Counterterrorism, Office of Security, United States Agency for International Development, Ronald Reagan Building, 1300 Pennsylvania Avenue, NW., Washington, DC 20523 by phone [phone].

SUPPLEMENTARY INFORMATION:

A. Background

In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, USAID is publishing a new system of records notice for the Office of Security named Partner Vetting System (PVS). The PVS will support the vetting of directors, officers, or other employees of non-governmental organizations who apply for USAID contracts, grants, cooperative agreements or other funding and those who apply for registration with USAID as Private Voluntary Organizations. The information collected from these individuals will be used to conduct screening to ensure USAID funds and USAID-funded activities are not purposefully or inadvertently used to provide support to entities or individuals deemed to be a risk to national security. As these individuals and organizations are not employees or job applicants, nor would they be eligible for or require security clearances, traditional employment or security clearance investigative mechanisms are not authorized or appropriate for the stated purposes.

USAID proposes to exempt this system, in part, from certain provisions of the Privacy Act and to add the PVS system to 22 CFR 215.14, Specific Exemptions. USAID needs this exemption in order to protect information related to investigations from disclosure to subjects of investigations and to protect classified information related to the government's national security programs. Specifically, the exemptions are required to preclude subjects of investigations from frustrating the investigative process; to avoid disclosure of investigative techniques; protect the identities and physical safety of confidential informants and of law enforcement personnel; ensure the Office of Security's ability to obtain information from third parties and other sources; protect the privacy of third parties; and safeguard classified information.

Aside form the specific protections afforded classified information that may underpin the screening mechanisms involved, USAID must also protect the names of organizations and individuals within this system. Because the results of screening on any particular organization or individual may be derived from classified and sensitive law enforcement and intelligence information, USAID cannot confirm or deny whether an individual “passed” or “failed” screening. The nondisclosure of the information protects the government's operational counterterrorism and counterintelligence missions, as well as the personal safety of those involved in counterterrorism investigations.

B. Regulatory Planning and Review

This is not a significant regulatory action and, therefore, is not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

C. Regulatory Flexibility Act

Pursuant to requirements set forth in the Regulatory Flexibility Act (RFA) (5 U.S.C. 601 et seq.), USAID has considered the economic impact of the rule and has determined that its provisions would not have a significant economic impact on a substantial number of small entities.

D. Paperwork Reduction Act

The Paperwork Reduction Act does apply because the proposed changes impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501 et seq.

List of Subjects in 22 CFR Part 215

• Freedom of Information
• Investigations
• Privacy

For the reasons stated in the preamble, the USAID proposes to amend 22 CFR part 215 as follows:

PART 215—REGULATIONS FOR IMPLEMENTATION OF PRIVACY ACT OF 1974

1. The authority citation for 22 CFR part 215 is revised to read as follows:

Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 553, (b), (c) and (e).

2. Amend § 215.13 by adding paragraph (c)(2) to read as follows:

§ 215.13

General exemptions.

* * * * *

(c) * * *

(2) Partner Vetting System. This system is exempt from sections (c)(3) and (4); (d); (e) (1), (2), and (3); (e) (4) (G), (H), and (I); (e) (5) and (8); (f), (g), and (h) of 5 U.S.C. 552a. These exemptions are necessary to insure the proper functioning of the law enforcement activity, to protect confidential sources of information, to fulfill promises of confidentiality, to maintain the integrity of the law enforcement procedures, to avoid premature disclosure of the knowledge of criminal activity and the evidentiary bases of possible enforcement actions, to prevent interferences with law enforcement proceeding, to avoid the disclosure of investigative techniques, to avoid endangering the law enforcement personnel, to maintain the ability to obtain candid and necessary information, to fulfill commitments made to sources to protect the confidentiality of information, to avoid endangering these sources, and to facilitate proper selection or continuance of the best applicants or persons for a given position or contract. Although the primary functions of USAID are not of a law enforcement nature, the mandate to ensure USAID funding is not purposefully or inadvertently used to provide support to entities or individuals deemed to be a risk to national security necessarily requires coordination with law enforcement and intelligence agencies as well as use of their information. Use of these agencies' information necessitates the conveyance of these other systems exemptions to protect the information as stated.

3. Amend 22 CFR 215.14 by adding the heading “Note to paragraph (c)(5)” to the undesignated text at the end of the section and paragraph (c)(6) to read as follows:

§ 215.14

Specific exemptions.

* * * * *

(c) * * *

(6) Partner Vetting System. This system is exempt under 5 U.S.C. 552a (k)(1), (k)(2), and (k)(5) from the provision of 5 U.S.C. 552a (c)(3); (d); (e)(1); (e)(4) (G), (H), (I); and (f). These exemptions are claimed to protect the materials required by executive order to be kept secret in the interest of national defense of foreign policy, to prevent subjects of investigation from frustrating the investigatory process, to insure the proper functioning and integrity of law enforcement activities, to prevent disclosure of investigative techniques, to maintain the ability to obtain candid and necessary information, to fulfill commitments made to sources to protect the confidentiality of information, to avoid endangering these sources, and to facilitate proper selection or continuance of the best applicants or persons for a given position or contract.

Philip M. Heneghan,

Chief Privacy Officer.