2011-21306. Amendment of Privacy Act Regulations, Request for Comments

AGENCY:

Office of the Secretary, Interior.

ACTION:

Proposed Rule.

SUMMARY:

The Department of the Interior is amending its regulations to exempt certain records from particular provisions of the Privacy Act. Specifically, the Department proposes to exempt certain records of the newly-created Debarment and Suspension Program system of records from one or more provisions of the Privacy Act.

DATES:

Submit written comments on October 3, 2011.

ADDRESSES:

Send written comments, identified by RIN 1090-AA94, by one of the following methods:

• Federal e-Rulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.
• Mail: Karen Burke, OS/NBC Privacy Act Officer, Office of the Secretary, Department of the Interior, 1951 Constitution Ave, NW., Mail Stop 116 SIB, Washington, DC 20240.
• E-mail: Karen Burke, OS/NBC Privacy Act Officer, Office of the Secretary, [e-mail].

FOR FURTHER INFORMATION CONTACT:

Karen Burke, OS/NBC Privacy Act Officer, Office of the Secretary, U.S. Department of the Interior, 1951 Constitution Avenue, NW., Mail Stop 116 SIB, Washington, DC 20240. E-mail at [e-mail].

SUPPLEMENTARY INFORMATION:

Background

The Department of the Interior (DOI) Office of Acquisition and Property Management maintains the Debarment and Suspension Program system of records. The primary purpose of this system of records is to assist DOI in conducting and documenting debarment and suspension proceedings to ensure that Federal procurements and Federal discretionary assistance, loans, and benefits are awarded to presently responsible business entities, organizations, and individuals. Additional purposes of the system are to: Promote understanding of the case decision path and concerns addressed by the debarring and suspending official in reaching a decision; to promote the submission of relevant arguments in contested cases; to educate the public and private bar as to the kinds of mitigating factors and remedial measures that demonstrate present responsibility; and to enhance the transparency of decision making.

Pursuant to 5 U.S.C. 552a (k)(2) and (k)(5), the head of a Federal agency may promulgate rules to exempt a system of records from certain provisions of 5 U.S.C. 552a if the system of records is “investigatory material complied for law enforcement purposes, other than material within the scope of subsection (j)(2)” or “investigatory material compiled solely for the purpose of determining suitability, eligibility, or qualifications for Federal civilian employment, military service, Federal contracts, or access to classified information. * * *”

To the extent that this system of records contains investigatory material within the provision of 5 U.S.C. 552a(k)(2) and (k)(5), the Department of the Interior proposes to exempt the Debarment and Suspension Program System of Records from provisions 5 U.S.C. 552a(c)(3); (d); (e)(1), (e)(4)(G), (H), (I); and (f). Exemptions from these particular subsections are justified for the following reasons:

1. From subsection (c)(3) because granting access to the accounting for each disclosure as normally required by the Privacy Act, including the date, nature, and purpose of each disclosure and the identity of the recipient, could alert the subject to the existence of the investigation or action interest by DOI or other agencies. This could seriously compromise case preparation by prematurely revealing its existence and nature; compromise or interfere with witnesses or make witnesses reluctant to cooperate; and/or lead to suppression, alteration, or destruction of evidence.

2. From subsections (d) and (f) because providing access to records of a debarment or suspension action investigation and the right to contest the contents of those records and force changes to be made to the information contained therein to individuals whose names may appear in the records due to having provided information about a respondent but who are not the subject of the debarment or suspension action would seriously interfere with and thwart the orderly and unbiased conduct of the investigation, impede debarment or suspension case preparation, and/or conflict with the evidentiary fact finding process under the debarment and suspension rules.

Providing rights normally afforded under the Privacy Act and agency rules could provide the subject with valuable information that would allow interference with or compromise of witnesses or render witnesses reluctant to cooperate; lead to suppression, alteration, or result in destruction of evidence interfering with the development of the suspension or debarment action; and/or jeopardize pending or ongoing judicial proceedings or impede the ability to act to protect Federal procurement and non-procurement program interests. Additionally, the debarment and suspension rules provide a process which accords recipients of action notices, as part of the contest process, the opportunity, where facts material to the action are determined to be genuinely in dispute, for an evidentiary fact finding hearing at which to confront and cross examine the government's witnesses.

3. From subsection (e)(1) because it is not always possible to detect the relevance or necessity of each piece of information in the early stages of an investigation. In some cases, it is only after the information is evaluated in light of other evidence that its relevance and necessity to accomplish a purpose of the agency will be clear.

4. From subsections (e)(4)(G) and (H) because there is no necessity for such publication since the system of records will be exempt from the underlying duties to provide notification about and access to information in the system and to make amendments to and corrections of the information in the system.

5. From subsection (e)(4)(I) because to the extent that this provision is construed to require more detailed disclosure than the broad, generic information currently published in the system notice, an exemption from this provision is necessary to protect the confidentiality of sources of information and to protect privacy and physical safety of witnesses and informants. DOI will, nevertheless, continue to publish such a notice in broad generic terms as is its current practice.

Procedural Requirements

1. Regulatory Planning and Review (E.O. 12866)

The Office of Management and Budget (OMB) has determined that this rule is not a significant rule and has not reviewed it under the requirements of Executive Order 12866. We have evaluated the impacts of the rule as required by E.O. 12866 and have determined that it does not meet the criteria for a significant regulatory action. The results of our evaluation are given below.

(a) This rule will not have an annual effect of $100 million or more on the economy. It will not adversely affect in a material way the economy, productivity, competition, jobs, the environment, public health or safety, or State, local or Tribal governments or communities.

(b) This rule would not create a serious inconsistency or otherwise interfere with an action taken or planned by another agency.

(c) This rule does not alter the budgetary effects of entitlements, grants, user fees, concessions, loan programs, water contracts, management agreements, or the rights and obligations of their recipients.

(d) This rule does not raise any novel legal or policy issues.

2. Regulatory Flexibility Act

The Department of the Interior certifies that this document will not have a significant economic effect on a substantial number of small entities under the Regulatory Flexibility Act (5 U.S.C. 601 et seq.). This rule does not impose a requirement for small businesses to report or keep records on any of the requirements contained in this rule. The exemptions to the Privacy Act apply to individuals, and individuals are not covered entities under the Regulatory Flexibility Act.

3. Small Business Regulatory Enforcement Fairness Act (SBREFA)

This rule is not a major rule under 5 U.S.C. 804(2), the Small Business Regulatory Enforcement Fairness Act. This rule:

(a) Does not have an annual effect on the economy of $100 million or more.

(b) Will not cause a major increase in costs or prices for consumers, individual industries, Federal, State, or local government agencies, or geographic regions.

(c) Does not have significant adverse effects on competition, employment, investment, productivity, innovation, or the ability of United States-based enterprises to compete with foreign-based enterprises.

4. Unfunded Mandates Reform Act

This rule does not impose an unfunded mandate on State, local, or Tribal governments in the aggregate, or on the private sector, of more than $100 million per year. The rule does not have a significant or unique effect on State, local, or Tribal governments or the private sector. This rule makes only minor changes to 43 CFR part 2. A statement containing the information required by the Unfunded Mandates Reform Act (2 U.S.C. 1531 et seq.) is not required.

5. Takings (E.O. 12630)

In accordance with Executive Order 12630, the rule does not have significant takings implications. This rule makes only minor changes to 43 CFR part 2. A takings implication assessment is not required.

6. Federalism (E.O. 13132)

In accordance with Executive Order 13132, this rule does not have any federalism implications to warrant the preparation of a Federalism Assessment. The rule is not associated with, nor will it have substantial 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. A Federalism Assessment is not required.

7. Civil Justice Reform (E.O. 12988)

This rule complies with the requirements of Executive Order 12988. Specifically, this rule:

(a) Does not unduly burden the judicial system.

(b) Meets the criteria of section 3(a) requiring that all regulations be reviewed to eliminate errors and ambiguity and be written to minimize litigation; and

(c) Meets the criteria of section 3(b)(2) requiring that all regulations be written in clear language and contain clear legal standards.

8. Consultation With Indian Tribes (E.O. 13175)

In accordance with Executive Order 13175, the Department of the Interior has evaluated this rule and determined that it would have no substantial effects on Federally recognized Indian Tribes.

9. Paperwork Reduction Act

This rule does not require an information collection from 10 or more parties and a submission under the Paperwork Reduction Act is not required.

10. National Environmental Policy Act

This rule does not constitute a major Federal action and would not have a significant effect on the quality of the human environment. Therefore, this rule does not require the preparation of an environmental assessment or environmental impact statement under the requirements of the National Environmental Policy Act of 1969.

11. Data Quality Act

In developing this rule, there was no need to conduct or use a study, experiment, or survey requiring peer review under the Data Quality Act (Pub. L. 106-554).

12. Effects on Energy Supply (E.O. 13211)

This rule is not a significant energy action under the definition in Executive Order 13211. A Statement of Energy Effects is not required.

13. Clarity of This Regulation

We are required by Executive Order 12866 and 12988, the Plain Writing Act of 2010 (H.R. 946), and the Presidential Memorandum of June 1, 1998, to write all rules in plain language. This means each rule we publish must:

—Be logically organized;

—Use the active voice to address readers directly;

—Use clear language rather than jargon;

—Be divided into short sections and sentences; and

—Use lists and tables wherever possible.

List of Subjects in 43 CFR Part 2

• Privacy Act
• Sensitive information
• Freedom of Information Act
• Reporting and recordkeeping requirements

Dated: August 9, 2011.

Rhea Suh,

Assistant Secretary for Policy, Management and Budget.

For the reasons stated in the preamble, the Department of the Interior proposes to amend 43 CFR part 2 as follows:

PART 2—RECORDS AND TESTIMONY; FREEDOM OF INFORMATION ACT

1. The authority citation for part 2 continues to read as follows:

Authority: 5 U.S.C. 301, 552 and 552a; 31 U.S.C. 9701 and 43 U.S.C. 1460-1461. Appendix F to Part 2 also is issued under 30 U.S.C. 201-209; 30 U.S.C. 351-360.

2. In § 2.79, add paragraphs (b)(14) and (c)(4) to read as follows:

§ 2.79

Exemptions.

* * * * *

(b)* * *

(14) Debarment and Suspension Program, DOI-11.

(c)* * *

(4) Debarment and Suspension Program, DOI-11.

* * * * *