Rule2023-03772
Privacy Act-NASA Regulations
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 27, 2023
Effective
April 28, 2023
Issuing agencies
National Aeronautics and Space Administration
Abstract
This direct final rule makes changes to NASA's rules governing implementation of the Privacy Act by providing for electronic access to records and, most significantly, exempting NASA's harassment investigative case files system of records notice (SORN) from specific subsections in the Privacy Act. The rule also makes several non- substantive changes to correct titles and minor provide clarifications.
Full Text
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<title>Federal Register, Volume 88 Issue 38 (Monday, February 27, 2023)</title>
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[Federal Register Volume 88, Number 38 (Monday, February 27, 2023)]
[Rules and Regulations]
[Pages 12147-12149]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-03772]
[[Page 12147]]
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NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
14 CFR Part 1212
[Document Number NASA-21-091; Docket Number-NASA-2021-0007]
RIN 2700-AE64
Privacy Act--NASA Regulations
AGENCY: National Aeronautics and Space Administration (NASA).
ACTION: Direct final rule.
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SUMMARY: This direct final rule makes changes to NASA's rules
governing implementation of the Privacy Act by providing for electronic
access to records and, most significantly, exempting NASA's harassment
investigative case files system of records notice (SORN) from specific
subsections in the Privacy Act. The rule also makes several non-
substantive changes to correct titles and minor provide clarifications.
DATES: This rule is effective on April 28, 2023, unless adverse
comments are received by March 29, 2023. If adverse comments are
received, NASA will publish a timely withdrawal of the rule in the
Federal Register.
ADDRESSES: Comments must be identified with RIN 2700-AE64 and may be
sent to NASA via the Federal E-Rulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow the online instructions for submitted
comments. Please note that NASA will post all comments on the internet
with changes, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Corey Portalatin-Berrien, Office of
the Chief Information Officer, 202-358-4787.
SUPPLEMENTARY INFORMATION:
Background
Part 1212 establishes procedures for individuals to access their
Privacy Act records and to request amendment of information in records
concerning them. This rule was last published as a direct final rule in
the Federal Register at 77 FR 60620, October 4, 2012, to make non-
substantive changes to NASA rules governing implementation of the
Privacy Act by updating statute citations, position titles,
terminology, and adjusting appellate responsibility for records held by
the NASA Office of the Inspector General. However, correction to these
amendments were published in the Federal Register at 78 FR 8963,
February 7, 2013, to add the responsibility of NASA's Freedom of
Information Act Office that processes request for individual records.
NASA is currently amending the rule to make changes to provide for
electronic access to records. Furthermore, NASA is exempting its system
of records (SOR) for Harassment Report Case Files/NASA 10RCF, under 5
U.S.C. 552a(k)(2) (k)(5) from the following subsections of the Privacy
Act of 1974, 5 U.S.C. 552a:
<bullet> Subsection (c)(3) relating to access to the disclosure
accounting.
<bullet> Subsection (d) relating to access to the records.
<bullet> Subsection (e)(1) relating to the type of information
maintained in the records.
<bullet> Subsections (e)(4)(G), (H) and (I) relating to publishing
in the annual system notice information as to agency procedures for
access and correction and information as to the categories of sources
of records.
<bullet> Subsection (f) relating to developing agency rules for
gaining access and making corrections.
The determination to exempt these records was made because it is
necessary for NASA to continue to investigate violations of law,
regulation, and policy and also to determine continue suitability for
Federal employment. In accordance with Federal anti-discrimination
laws, the Equal Employment Opportunity Commission (EEOC) requires that
all Federal agencies have an Antiharassment policy and program. NASA's
specific policy prohibits harassment by all employees, provides an
avenue for individuals to report allegations of harassment, and a
process by which NASA fact-finders conduct inquiries/investigations.
Furthermore, NASA's policy prohibits retaliation against individuals
for raising allegations of harassment or participating in the process.
In order for NASA to promptly address and resolve potential violations
of law, regulation, or NASA policy, individuals who are participating
in this process must be assured that their statements will be kept
confidential consistent with law. Some investigations have been
hindered by witnesses' lack of willingness to come forward fearful that
their statements or identities would be revealed. Other agencies,
including the EEOC, have exempted these records from certain provisions
of the Privacy Act.
This SORN relies on multiple legal authorities to support exempting
these records under 5 U.S.C. 552a(K)(2) and (K)(5), including, NASA's
Antiharassment Policy, which states that NASA has an affirmative
obligation to maintain a harassment-free workplace and to take prompt
and effective action when allegations arise. NASA's policy encourages
all employees to report concerns and for NASA to address such conduct
before it becomes ``severe or pervasive'' within the meaning of the
anti-discrimination laws. Additional authoritative sources include the
EEOC, anti-discrimination laws, and Supreme Court precedent that
require agencies to take prompt and effective action if an individual
is alleging harassment by a NASA employee. Additionally, the
investigatory material compiled by this system of records may be used
to determine a putative harasser's suitability for continued NASA
employment and such records would be exempt from release under certain
provisions of the Privacy Act but only in cases where the disclosure of
such information would reveal the identity of a source who provided
information to NASA under the condition of anonymity.
Non-substantive changes will also be made to correct typos and
titles and provide clarity.
Direct Final Rule Adverse Comments
NASA has determined this rulemaking meets the criteria for a direct
final rule because it involves two substantive changes, one to address
electronic access to records as required by Creating Advanced
Streamlined Electronic Services for Constituents Act of 2019; the
second to add an exemption for an Agency system of records. No
opposition to the changes and no significant adverse comments are
expected. However, if the Agency receives a significant adverse
comment, it will withdraw this direct final rule by publishing a
document in the Federal Register. A significant adverse comment is one
that explains: (1) why the direct final rule is inappropriate,
including challenges to the rule's underlying premise or approach; or
(2) why the direct final rule will be ineffective or unacceptable
without a change. In determining whether a comment necessitates
withdrawal of this direct final rule, NASA will consider whether it
warrants a substantive response in a notice and comment process.
Statutory Authority
The National Aeronautics and Space Act (the Space Act), 51 U.S.C.
20101(a), authorizes the NASA Administrator to make, promulgate, issue,
rescind, and amend rules and regulations governing the manner of its
operations and the exercise of the powers vested in it by law.
[[Page 12148]]
Regulatory Analysis
Executive Order 12866, Regulatory Planning and Review and Executive
Order 13563, Improvement Regulation and Regulation Review
Executive Orders 13563 and 12866 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. This rule has been designated as ``administrative'' under
section 3(f) of Executive Order 12866. Accordingly, the rule has been
reviewed by the Office of Management and Budget.
Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act (5 U.S.C. 601 et seq.) requires an
agency to prepare an initial regulatory flexibility analysis to be
published at the time the proposed rule is published. This requirement
does not apply if the agency ``certifies that the rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities'' (5 U.S.C. 603). This rule does not have any
economic impact on small entities.
Review Under the Paperwork Reduction Act
This direct final rule does not contain any information collection
requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C.
3501 et seq.).
Review Under Executive Order of 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 4,
1999), requires regulations be reviewed for federalism effects on the
institutional interest of states and local governments, and, if the
effects are sufficiently substantial, preparation of the Federal
assessment is required to assist senior policy makers. The amendments
will not have any direct effects on state and local governments within
the meaning of the Executive order. Therefore, no federalism assessment
is required.
List of Subjects in 14 CFR Part 1212
Privacy, Procedural rules.
For reasons discussed in the preamble, NASA amends 14 CFR part 1212
as follows:
PART 1212--PRIVACY ACT--NASA REGULATIONS
0
1. The authority citation for part 1212 continues to read as follows:
Authority: 51 U.S.C. 20101 et seq.; 5 U.S.C. 552a; Pub. L. 115-
59, 131 Stat. 1152 (42 U.S.C. 405 note).
Subpart 1212.2--Requests for Access to Records
0
2. Revise Sec. 1212.201 to read as follows:
Sec. 1212.201 Requesting a record.
(a) Individuals may request access to their Privacy Act records,
either in person, in writing, or electronically.
(b) Individuals may also authorize a third party to have access to
their Privacy Act records. This authorization shall be in writing,
signed by the individual, or submitted electronically. Requests must
contain the individual's address or email address, as well as the name,
address or email address of the representative being authorized access.
The identities of both the subject individual and the representative
must be verified in accordance with the procedures set forth in Sec.
1212.202.
(c)(1) In-person or written requests must be directed to the
appropriate system manager, or, if unknown, to the Center Privacy
Manager or Freedom of Information Act (FOIA) Office at NASA
Headquarters or Field Center. The request should be identified clearly
on the envelope and on the letter as a ``Request Under the Privacy
Act.''
(2) Electronic requests may be initiated online at <a href="https://www.nasa.gov/about/highlights/HP_Privacy.html">https://www.nasa.gov/about/highlights/HP_Privacy.html</a>.
(3) Where possible, requests should contain the following
information to ensure timely processing:
(i) Name and address of subject.
(ii) Email address of subject, for electronic requests only.
(iii) Identity of the system of records.
(iv) Nature of the request.
(v) Identifying information specified in the applicable system
notice to assist in identifying the request, such as location of the
record, if known, full name, birth date, time periods in which the
records are believed to have been compiled, etc.
(d) NASA has no obligation to comply with a nonspecific request for
access to information concerning an individual, e.g., a request to
provide copies of ``all information contained in your files concerning
me,'' although a good faith effort will be made to locate records if
there is reason to believe NASA has records on the individual. If the
request is so incomplete or incomprehensible that the requested record
cannot be identified, additional information or clarification will be
requested in the acknowledgement, and assistance to the individual will
be offered as appropriate.
(e) If the Center Privacy Manager receives a request for access,
the Privacy Manager will record the date of receipt and immediately
forward the request to the responsible system manager for handling.
(f) If the Center FOIA Office receives a first party request for
records or access, the FOIA Office will process the request under the
Privacy Act pursuant to this part.
(g) Normally, the system manager shall respond to a request for
access within 10 business days of receipt of the request and the access
shall be provided within 30 business days of receipt.
(1) In response to a request for access, the system manager or
Privacy Act Officer shall:
(i) Notify the requester that there is no record on the individual
in the system of records and inform the requester of the procedures to
follow for appeal (see Sec. 1212.4);
(ii) Notify the requester that the record is exempt from
disclosure, cite the appropriate exemption, and inform the requester of
the procedures to follow for appeal (see Sec. 1212.4);
(iii) Upon request, promptly provide copies of the record, subject
to the fee requirements (see Sec. 1212.204); or
(iv) Make the individual's record available for personal inspection
in the presence of a NASA representative.
(2) Unless the system manager agrees to another location, personal
inspection of the record shall be at the location of the record as
identified in the system notice.
(3) When an individual requests records in a system of records
maintained on a third party, the request shall be processed as a FOIA
request under 14 CFR part 1206. If the records requested are subject to
release under FOIA (5 U.S.C. 552(b)), then a Privacy Act exemption may
not be invoked to deny access.
(4) When an individual requests records in a system of records
maintained on the individual, the request shall be processed under this
part. NASA will not rely on exemptions contained in FOIA to withhold
any record which is otherwise accessible to the individual under this
part.
0
3. Revise Sec. 1212.202 to read as follows:
[[Page 12149]]
Sec. 1212.202 Identification procedures.
(a) The system manager will release records to the requester or
representative in person only upon production of satisfactory
identification which includes the individual's name, signature, and
photograph or physical description.
(b) The system manager will release records to the requester or
representative electronically via a NASA provided temporary secure
storage space, after the identities of both are validated by the
Agency's identity authorization process.
(c) The system manager will release copies of records by mail only
when the circumstances indicate that the requester and the subject of
the record are the same. The system manager may require that the
requester's signature be notarized or witnessed by two individuals
unrelated to the requester.
(d) Identity procedures more stringent than those required in this
section may be prescribed in the system notice when the records are
medical or otherwise sensitive.
Sec. 1212.204 [Amended]
0
4. Amend Sec. 1212.204 in paragraph (b) by adding the words ``hard-
copy'' before the word ``duplication.''
Sec. 1212.205 [Amended]
0
5. Amend Sec. 1212.205 in paragraph (b) by removing the word
``manages'' and adding in its place the word ``manager.''
Subpart 1212.4--Appeals and Related Matters
Sec. 1212.400 [Amended]
0
6. Amend Sec. 1212.400 in paragraphs (b), (c)(1), and (e) by removing
the words ``Associate Deputy Administrator'' and adding in their place
the words ``Associate Administrator.''
Subpart 1212.5--Exemptions to Individuals' Rights of Access
Sec. 1212.500 [Amended]
0
7. Amend Sec. 1212.500 in paragraph (b) by removing the words
``Associate Deputy Administrator'' and adding in their place the words
``Associate Administrator.''
0
8. Amend Sec. 1212.501 by adding paragraph (c) to read as follows:
Sec. 1212.501 Record systems determined to be exempt.
* * * * *
(c) Harassment Report Case Files--(1) Sections of the Act from
which exempted. Harassment Report Case Files records are exempt under 5
U.S.C. 552a(k)(2) from the following sections of the Privacy Act (5
U.S.C. 552a): subsection (c)(3) relating to access to the disclosure
accounting; subsection (d) relating to access to the records;
subsection (e)(1) relating to the type of information maintained in the
records; subsections (e)(4)(G), (H), and (I) relating to publishing in
the annual system notice information as to agency procedures for access
and correction and information as to the categories of sources of
records; and subsection (f) relating to developing agency rules for
gaining access and making corrections.
(2) Reason for exemption--(i) Subsection (c)(3). The release of the
disclosure accounting to the individual who is the subject of the
investigation/fact-finding would present a serious impediment to NASA's
ability to conduct fact-findings into potential violations of law or
policy.
(ii) Subsection (d). Access to records contained in this system
would inform the subject of an actual or potential investigation, of
the existence of that investigation, of the nature and scope of the
investigation, of the information and evidence obtained as to their
activities, and of the identity of witnesses. Such access would impede
a fact-finder/investigator's ability to freely investigate such cases,
including concerns that some witnesses have been promised
confidentiality and would not want their statements provided to the
subject of the investigation. Amendment of the records would interfere
with the ongoing fact-finding process.
(iii) Subsection (e)(1). Under the provision of (e)(1), the agency
must only maintain such information that is relevant and necessary. It
is difficult to know during the course of an investigation what is
relevant and necessary. In this connection, facts or evidence may not
seem relevant at first, but later in the investigation, their relevance
is borne out.
(iv) Subsections (e)(4)(G) and (H). These subsections are
inapplicable to the extent that these systems are exempt from the
access provisions of subsection (d) and the rules provisions of
subsection (f).
(v) Subsection (e)(4)(I). The categories of sources of the records
in these systems have been published in the Federal Register in broad
generic terms in the belief that this is all that subsection (e)(4)(I)
of the Act requires. In the event, however, that this subsection should
be interpreted to require more detail as to the identity of sources of
the records in this system, exemption from this provision is necessary
to protect the confidentiality of the sources of criminal and related
law enforcement information. Such exemption is further necessary to
protect the privacy and physical safety of witnesses and informants.
(vi) Subsection (f). Procedures for notice to an individual
pursuant to subsection (f)(1) as to existence of records pertaining to
the individual dealing with an actual or potential criminal, civil, or
regulatory investigation or prosecution must be exempted because such
notice to an individual would be detrimental to the successful conduct
and/or completion of an investigation or case, pending or future. In
addition, mere notice of the fact of an investigation could inform the
subject or others that their activities are under investigation or may
become the subject of an investigation and could enable the subjects to
avoid detection, to influence witnesses improperly, to destroy
evidence, or to fabricate testimony. Since an exemption is being
claimed for subsection (d) of the Act, the rules required pursuant to
subsections (f)(2) through (5) are inapplicable to these systems of
records to the extent that these systems of records are exempted from
subsection (d).
(3) Determination. NASA has determined that the exemption of this
system of records from subsections (c)(3), (d), (e)(1), (e)(4)(G),
(e)(4)(H), (e)(4)(I), and (f) of the Privacy Act is necessary for the
Agency's law enforcement efforts to address and eradicate harassment in
its workplace.
Subpart 1212.7--NASA Authority and Responsibilities
0
9. Amend Sec. 1212.701 by revising the section heading and
introductory text to read as follows:
Sec. 1212.701 Associate Administrator.
The Associate Administrator is responsible for:
* * * * *
Sec. 1212.705 [Amended]
0
9. Amend Sec. 1212.705 in paragraph (a)(3) by removing the words
``Associate Deputy Administrator'' and adding in their place the words
``Associate Administrator.''
Nanette Smith,
Team Lead, NASA Directives and Regulations.
[FR Doc. 2023-03772 Filed 2-24-23; 8:45 am]
BILLING CODE 7510-13-P
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</html>Indexed from Federal Register on February 27, 2023.
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