Rule2022-03473
Privacy Act; Implementation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
February 17, 2022
Effective
February 17, 2022
Issuing agencies
Health and Human Services Department
Abstract
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.
Full Text
<html>
<head>
<title>Federal Register, Volume 87 Issue 33 (Thursday, February 17, 2022)</title>
</head>
<body><pre>
[Federal Register Volume 87, Number 33 (Thursday, February 17, 2022)]
[Rules and Regulations]
[Pages 8957-8959]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-03473]
=======================================================================
-----------------------------------------------------------------------
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
<a href="/cdn-cgi/l/email-protection#0171736877606278416c60686d2f6f68692f666e77"><span class="__cf_email__" data-cfemail="7303011a0512100a331e121a1f5d1d1a1b5d141c05">[email protected]</span></a>.
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:
<bullet> 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.
<bullet> 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
[[Page 8958]]
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.
<bullet> 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.
[[Page 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
0
1. The authority citation for part 5b continues to read as follows:
Authority: 5 U.S.C. 301, 5 U.S.C. 552a.
0
2. Amend Sec. 5b.11 by adding paragraph (b)(3) to read as follows:
Sec. 5b.11 Exempt systems.
* * * * *
(b) * * *
(3) The following systems of records are exempt from 5 U.S.C.
552a(c)(3) and Sec. 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 Sec. Sec. 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
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on February 17, 2022.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.