Rule2024-29666
Privacy Act of 1974: Implementation of Exemptions
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Published
December 17, 2024
Effective
January 16, 2025
Issuing agencies
Energy Department
Abstract
The Department of Energy (DOE or Department) is revising its regulations to exempt certain records maintained under a newly established system of records--DOE-85, Research, Technology, and Economic Security Due Diligence Review Records--from the notification and access provisions of the Privacy Act of 1974. The Department is exempting portions of this system of records from these subsections of the Privacy Act because of requirements related to classified information.
Full Text
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<title>Federal Register, Volume 89 Issue 242 (Tuesday, December 17, 2024)</title>
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[Federal Register Volume 89, Number 242 (Tuesday, December 17, 2024)]
[Rules and Regulations]
[Pages 101846-101850]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2024-29666]
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DEPARTMENT OF ENERGY
10 CFR Part 1008
[DOE-HQ-2024-0085]
RIN 1903-AA18
Privacy Act of 1974: Implementation of Exemptions
AGENCY: U.S. Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE or Department) is revising its
regulations to exempt certain records maintained under a newly
established system of records--DOE-85, Research, Technology, and
Economic Security Due Diligence Review Records--from the notification
and access provisions of the Privacy Act of 1974. The Department is
exempting portions of this system of records from these subsections of
the Privacy Act because of requirements related to classified
information.
DATES: This final rule is effective on January 16, 2025.
FOR FURTHER INFORMATION CONTACT: Kyle David, U.S. Department of Energy,
1000 Independence Avenue SW, Office 8H-085, Washington, DC, 20585;
facsimile: (202) 586-8151; email: <a href="/cdn-cgi/l/email-protection#a4cfddc8c18ac0c5d2cdc0e4ccd58ac0cbc18ac3cbd2"><span class="__cf_email__" data-cfemail="670c1e0b02490306110e03270f164903080249000811">[email protected]</span></a>, telephone:
(240) 686-9485.
SUPPLEMENTARY INFORMATION:
Table of Contents
I. Authority and Background
A. Authority
B. Background
II. Discussion
III. Summary of Public Comments
IV. Section 1008.12 Analysis
V. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866, 13563, and 14094
B. Review Under the Regulatory Flexibility Act
C. Review Under the Paperwork Reduction Act of 1995
D. Review Under the National Environmental Policy Act of 1969
E. Review Under Executive Order 12988
F. Review Under Executive Order 13132
G. Review Under Executive Order 13175
H. Review Under the Unfunded Mandates Reform Act of 1995
I. Review Under Executive Order 12360
J. Review Under Executive Order 13211
K. Review Under the Treasury and General Government
Appropriations Act, 1999
L. Review Under the Treasury and General Government
Appropriations Act, 2001
M. Congressional Notification
VI. Approval by the Office of the Secretary of Energy
I. Authority and Background
A. Authority
DOE has broad authority to manage the agency's collection, use,
processing, maintenance, storage, and disclosure of Personally
Identifiable Information (PII) pursuant to the following authorities:
42 United States Code (U.S.C.) 7101 et seq., 50 U.S.C. 2401 et seq., 5
U.S.C. 1104, 5 U.S.C. 552, 5 U.S.C. 552a, 42 U.S.C. 7254, 5 U.S.C. 301,
and 42 U.S.C. 405 note.
B. Background
The Privacy Act of 1974 (the Act) (5 U.S.C. 552a) embodies fair
information practice principles in a statutory framework governing the
means by which the U.S. Government collects, maintains, uses, and
disseminates personally identifiable information. The Privacy Act
applies to information that is maintained in a ``system of records.'' A
``system of records'' is a group of any records under the control of an
agency from which information is retrieved by the name of the
individual or by some identifying number, symbol, or other identifying
particular assigned to the individual. In the Privacy Act, an
individual is defined to encompass U.S. citizens and lawful permanent
residents.
The Privacy Act includes two sets of provisions that allow agencies
to claim exemptions from certain requirements in the statute. These
provisions allow agencies in certain circumstances to promulgate rules
to exempt a system of records from certain provisions of the Privacy
Act. For this system of records, pursuant to 5 U.S.C. 552a(k)(1), the
Department exempts this system of records from subsections (c)(3); (d);
(e)(1), (e)(4)(G), (4)(H), and (4)(I); and (f) of the Privacy Act. This
exemption is needed to protect information relating to DOE activities
from disclosure to subjects or others related to these activities.
Specifically, the exemption is required to safeguard classified
information. Pursuant to the Privacy Act and Office of Management and
Budget (OMB) Circular A-108, Federal Agency Responsibilities for
Review, Reporting, and Publication under the Privacy Act, DOE is
issuing this Rule to make clear to the public the reasons why this
particular exemption is being applied.
II. Discussion
The Department is exempting portions of a newly established system
of records--DOE-85, Research, Technology, and Economic Security Due
Diligence Review Records--from subsections (c)(3); (d); (e)(1),
(e)(4)(G), (4)(H), and (4)(I); and (f) of the Privacy Act of 1974. To
claim this exemption, DOE is amending 10 CFR 1008.12 by adding a new
paragraph, (b)(1)(ii)(N). The Department exempts portions of this
system of records from these subsections of the Privacy Act because of
requirements related to classified information.
The purpose of this system is to enhance DOE's capabilities to
aggregate, link, analyze, and maintain information used by the
Department to assess research, technology, and economic security (RTES)
risk. RTES risks may include risk of foreign government interference
and exploitation, intellectual property (IP) loss, national
[[Page 101847]]
security risk, conflicts of interest, and conflicts of commitment, and
other parameters defined in DOE/National Nuclear Security
Administration (NNSA) policy. The RTES analysis builds on pre-existing
information provided by individuals and organizations that interact
with DOE/NNSA, paired with public records, and in some cases,
classified information. Consistent with National Security Presidential
Memorandum-33 \1\ (NSPM-33), applicable law, and existing DOE/NNSA
policies, the system records may be shared as appropriate with other
Federal funding agencies and internally within DOE/NNSA to help ensure
a coordinated and consistent approach to risk assessment.
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\1\ National Security Presidential Memorandum on United States
Government-Supported Research and Development National Security
Policy 33, issued January 14, 2021.
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For this system of records, the system is exempted from subsections
(c)(3); (d); (e)(1), (e)(4)(G), (4)(H), and (4)(I); and (f) of the
Privacy Act pursuant to 5 U.S.C. 552a(k)(1). This exemption is needed
to protect information relating to DOE activities from disclosure to
subjects or others related to these activities. Specifically, the
exemption is required to safeguard classified information.
This exemption is a standard national security exemption exercised
by many Federal intelligence agencies. Although the RTES Office is not
an intelligence agency, the system of records utilized by the RTES
Office may include classified information obtained from Federal
intelligence sources.
Exemptions for DOE-85 Research, Technology, and Economic Security
Due Diligence Review Records from this particular subsection of the
Privacy Act are justified on a case-by-case basis to be determined at
the time a request is made for the following reasons:
From 5 U.S.C. 552a subsection (k)(1) because providing individuals
access to classified information could cause serious damage to the
national defense or foreign policy.
On September 10, 2024, DOE published a notice of proposed
rulemaking (NOPR) (89 FR 73312). This NOPR claimed the 5 U.S.C.
552a(k)(1) exemption listed in the preceding paragraph. As a result of
this NOPR, DOE received one comment, discussed in section III of this
document.
III. Summary of Public Comments
As mentioned in previously, DOE received one comment in response to
the NOPR (DOE-HQ-2023-0058-0005). The commenter requested a clearer
explanation of how conflicts of interest and commitment necessitate
exemptions from the Privacy Act and for DOE to consider narrowing the
scope of Privacy Act exemptions, particularly the exemption from 5
U.S.C. 552a(e)(1). The commenter points out that the exemption from 5
U.S.C. 522a(e)(1) is too broad and could result in the accumulation of
unnecessary information, creating unintended consequences such as the
misuse of personal information. Finally, the commenter also stated that
Freedom of Information Act (FOIA) liability may also be triggered from
people trying to get information they believe is held under exemption.
As to the issue regarding conflicts of interest and commitment, DOE
would like to clarify that the justification for exempting the system
is based on the extent to which the system contains classified
information. This is consistent with 10 CFR 1008.12(b)(1), where 5
U.S.C. 552a(k)(1) applies to the system only ``to the extent [that the
system] contain[s] classified information, in order to prevent serious
damage to the national defense or foreign policy that could arise from
providing individuals access to classified information.'' Determining
if something is exempt will be done on a case-by-case basis, and if
there is no classified information or national security information,
then included information under 5 U.S.C. 552a(k)(1) would not be
exempt.
As to the commenters concerns that the exemption from 5 U.S.C.
522a(e)(1) is too broad and could result in collection of irrelevant
information, risking misuse of personal information, as well as
concerns that the regulation could lead to legal challenges to
withholding such information under FOIA, DOE respectfully disagrees.
DOE makes clear in the NOPR and restates here, information within the
system that meets the criteria of 5 U.S.C. 552a(k)(1) is exempted from
disclosure from 5 U.S.C. 552a(e)(1) and the other identified
provisions. Information that fails to meet such criteria is not
exempted from the provision. Therefore, the exemption from 5 U.S.C.
552a(e)(1) is sufficiently tailored for consistency with 10 CFR
1008.12(b)(1), and determinations will be made on a case-by-case basis.
IV. Section 1008.12 Analysis
This final rule amends 10 CFR 1008.12(b)(1)(ii), by adding
paragraph (b)(1)(ii)(N), referencing line item ``(N) Research,
Technology, and Economic Security Due Diligence Review Records (DOE-
85)'' to paragraph (b)(1)(ii). This addition will demonstrate that SORN
DOE-85 is included among the other SORNs taking a 5 U.S.C. 552a (k)(1)
exemption under the Privacy Act of 1974. This exemption allows DOE to
``prevent serious damage to the national defense or foreign policy that
could arise from providing individuals access to classified
information.''
V. Procedural Issues and Regulatory Review
A. Review Under Executive Orders 12866, 13563, and 14094
Executive Order (``E.O.'') 12866, ``Regulatory Planning and
Review,'' 58 FR 51735 (Oct. 4, 1993), as supplemented and reaffirmed by
E.O. 13563, ``Improving Regulation and Regulatory Review,'' 76 FR 3821
(Jan. 21, 2011) and amended by E.O. 14094, ``Modernizing Regulatory
Review,'' 88 FR 21879 (April 11, 2023), requires agencies, to the
extent permitted by law, to (1) propose or adopt a regulation only upon
a reasoned determination that its benefits justify its costs
(recognizing that some benefits and costs are difficult to quantify);
(2) tailor regulations to impose the least burden on society,
consistent with obtaining regulatory objectives, taking into account,
among other things, and to the extent practicable, the costs of
cumulative regulations; (3) select, in choosing among alternative
regulatory approaches, those approaches that maximize net benefits
(including potential economic, environmental, public health and safety,
and other advantages; distributive impacts; and equity); (4) to the
extent feasible, specify performance objectives, rather than specifying
the behavior or manner of compliance that regulated entities must
adopt; and (5) identify and assess available alternatives to direct
regulation, including providing economic incentives to encourage the
desired behavior, such as user fees or marketable permits, or providing
information upon which choices can be made by the public. DOE
emphasizes as well that E.O. 13563 requires agencies to use the best
available techniques to quantify anticipated present and future
benefits and costs as accurately as possible. In its guidance, the
Office of Information and Regulatory Affairs (OIRA) has emphasized that
such techniques may include identifying changing future compliance
costs that might result from technological innovation or anticipated
behavioral changes. For the reasons stated in this preamble, this final
rule is consistent with these principles.
Section 6(a) of E.O. 12866 requires agencies to submit
``significant regulatory actions'' to OIRA for review.
[[Page 101848]]
OIRA has determined that this final rule is not a ``significant
regulatory action'' within the scope of E.O. 12866. Accordingly, this
action is not subject to review under E.O. 12866 by OIRA of the Office
of Management and Budget (OMB).
B. Review Under the Regulatory Flexibility Act
The Regulatory Flexibility Act of 1980 (5 U.S.C. 601 et seq.)
requires that an agency prepare an initial regulatory flexibility
analysis for any regulation for which a final rule is required, unless
the agency certifies that the rule, if promulgated, will not have a
significant economic impact on a substantial number of small entities
(5 U.S.C. 605(b)). As required by Executive Order 13272, Proper
Consideration of Small Entities in Agency Rulemaking, 67 FR 53461 (Aug.
16, 2002), DOE published procedures and policies on February 19, 2003,
to ensure that the potential impacts of its rules on small entities are
properly considered during the rulemaking process. 68 FR 7990. DOE has
made its procedures and policies available on the Office of the General
Counsel's website (<a href="http://www.energy.gov/gc/office-general-counsel">www.energy.gov/gc/office-general-counsel</a>).
DOE reviewed this final rule under the provisions of the Regulatory
Flexibility Act and the procedures and policies published on February
19, 2003. DOE certifies that the final rule will not have significant
economic impact on a substantial number of small entities. The factual
basis for this certification is set forth below.
This final rule will update DOE's policies and procedures
concerning the disclosure of records held within a system of records
pursuant to the Privacy Act of 1974. This final rule will apply only to
activities conducted by DOE's Federal employees and contractors, who
would be responsible for implementing the rule requirements. DOE does
not expect there to be any potential economic impact of this final rule
on small businesses. Small businesses, therefore, should not be
adversely impacted by the requirements in this final rule. For these
reasons, DOE certifies that this final rule will not have a significant
economic impact on a substantial number of small entities, and
therefore, no regulatory flexibility analysis has been prepared.
C. Review Under the Paperwork Reduction Act of 1995
This final rule does not impose a collection of information
requirement subject to review and approval by OMB under the Paperwork
Reduction Act (44 U.S.C. 3501 et seq.).
D. Review Under the National Environmental Policy Act of 1969
Pursuant to the National Environmental Policy Act of 1969 (NEPA),
DOE has analyzed this action in accordance with NEPA and DOE's NEPA
implementing regulations (10 CFR part 1021). DOE's regulations include
a categorical exclusion (CX) for rulemakings interpreting or amending
an existing rule or regulation that does not change the environmental
effect of the rule or regulation being amended. 10 CFR part 1021,
subpart D, appendix A, paragraph A5. DOE has determined that this final
rule is covered under the CX found in DOE's NEPA regulations at
paragraph A5 of appendix A to subpart D, 10 CFR part 1021, because it
is an amendment to an existing regulation that does not change the
environmental effect of the amended regulation and, therefore, meets
the requirements for the application of this CX. See 10 CFR 1021.410.
Therefore, DOE has determined that this final rule is not a major
Federal action significantly affecting the quality of the human
environment within the meaning of NEPA and does not require an
Environmental Assessment or an Environmental Impact Statement.
E. Review Under Executive Order 12988
With respect to the review of existing regulations and the
promulgation of new regulations, Section 3(a) of Executive Order 12988,
``Civil Justice Reform,'' 61 FR 4729 (February 7, 1996), imposes on
Federal agencies the general duty to adhere to the following
requirements: (1) eliminate drafting errors and ambiguity; (2) write
regulations to minimize litigation; (3) provide a clear legal standard
for affected conduct rather than a general standard; and (4) promote
simplification and burden reduction. Section 3(b) of Executive Order
12988 specifically requires that executive agencies make every
reasonable effort to ensure the regulation: (1) clearly specifies the
preemptive effect, if any; (2) clearly specifies any effect on existing
Federal law or regulation; (3) provides a clear legal standard for the
affected conduct while promoting simplification and burden reduction;
(4) specifies the retroactive effect, if any; (5) adequately defines
key terms; (6) specifies whether administrative proceedings are to be
required before parties may file suit in court and, if so, describes
those proceedings and requires the exhaustion of administrative
remedies; and (7) addresses other important issues affecting clarity
and general draftsmanship under any guidelines issued by the Attorney
General. Section 3(c) of Executive Order 12988 requires Executive
agencies to review regulations in light of applicable standards in
section 3(a) and section 3(b) to determine whether they are met or it
is unreasonable to meet one or more of the standards. DOE has completed
the required review and determined that, to the extent permitted by
law, this final rule meets the relevant standards of Executive Order
12988.
F. Review Under Executive Order 13132
Executive Order 13132, ``Federalism,'' 64 FR 43255 (August 10,
1999), imposes certain requirements on agencies formulating and
implementing policies or regulations that preempt State law or that
have federalism implications. Agencies are required to examine the
constitutional and statutory authority supporting any action that would
limit the policymaking discretion of the States and carefully assess
the necessity for such actions. The Executive order also requires
agencies to have an accountable process to ensure meaningful and timely
input by State and local officials in the development of regulatory
policies that have federalism implications. On March 14, 2000, DOE
published a statement of policy describing the intergovernmental
consultation process it will follow in the development of such
regulations. 65 FR 13735. DOE has examined this final rule and has
tentatively determined that it would not preempt State law and would
not have a substantial direct effect 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.
No further action is required by Executive Order 13132.
G. Review Under Executive Order 13175
Under Executive Order 13175 (65 FR 67249, November 6, 2000) on
``Consultation and Coordination with Indian Tribal Governments,'' DOE
may not issue a discretionary rule that has ``Tribal'' implications and
imposes substantial direct compliance costs on Indian Tribal
governments. DOE has determined that this final rule will not have such
effects and concluded that Executive Order 13175 does not apply to this
final rule.
H. Review Under the Unfunded Mandates Reform Act of 1995
Title II of the Unfunded Mandates Reform Act (UMRA) of 1995 (Pub.
L. 104-4) requires each Federal agency to assess the effects of a
Federal regulatory action on State, local, and Tribal governments, and
the private sector.
[[Page 101849]]
(Pub. L. 104-4, sec. 201 et seq. (codified at 2 U.S.C. 1531 et seq.)).
For a regulatory action likely to result in a rule that may cause the
expenditure by State, local, and Tribal governments, in the aggregate,
or by the private sector of $100 million or more in any one year
(adjusted annually for inflation), section 202 of UMRA requires a
Federal agency to publish a written statement that estimates the
resulting costs, benefits, and other effects on the national economy.
(2 U.S.C. 1532(a), (b)) UMRA also requires a Federal agency to develop
an effective process to permit timely input by elected officers of
State, local, and Tribal governments on a ``significant Federal
intergovernmental mandate,'' and requires an agency plan for giving
notice and opportunity for timely input to potentially affected small
governments before establishing any requirements that might
significantly or uniquely affect them. On March 18, 1997, DOE published
a statement of policy on its process for intergovernmental consultation
under UMRA. (62 FR 12820) (This policy is also available at:
<a href="http://www.energy.gov/gc/guidance-opinions">www.energy.gov/gc/guidance-opinions</a> under ``Guidance & Opinions''
(Rulemaking).) DOE examined this final rule according to UMRA and its
statement of policy and has determined that this final rule contains
neither an intergovernmental mandate, nor a mandate that may result in
the expenditure by State, local, and Tribal governments, in the
aggregate, or by the private sector, of $100 million or more in any
year. Accordingly, no further assessment or analysis is required under
UMRA.
I. Review Under Executive Order 12630
DOE has determined, under Executive Order 12630, ``Governmental
Actions and Interference with Constitutionally Protected Property
Rights'' 53 FR 8859 (March 18, 1988), that this regulation would not
result in any takings that might require compensation under the Fifth
Amendment to the U.S. Constitution.
J. Review Under Executive Order 13211
Executive Order 13211, ``Actions Concerning Regulations That
Significantly Affect Energy Supply, Distribution, or Use,'' 66 FR 28355
(May 22, 2001), requires Federal agencies to prepare and submit to the
OIRA, which is part of OMB, a Statement of Energy Effects for any
significant energy action. A ``significant energy action'' is defined
as any action by an agency that promulgates or is expected to lead to
promulgation of a final rule, and that: (1)(i) is a significant
regulatory action under Executive Order 12866, or any successor order;
and (ii) is likely to have a significant adverse effect on the supply,
distribution, or use of energy, or (2) is designated by the
Administrator of OIRA as a significant energy action. For any
significant energy action, the agency must give a detailed statement of
any adverse effects on energy supply, distribution, or use should the
proposal be implemented, and of reasonable alternatives to the action
and their expected benefits on energy supply, distribution, and use.
This regulatory action is not a significant energy action. Accordingly,
DOE has not prepared a Statement of Energy Effects.
K. Review Under the Treasury and General Government Appropriations Act,
1999
Section 654 of the Treasury and General Government Appropriations
Act, 1999 (Pub. L. 105-277) requires Federal agencies to issue a Family
Policymaking Assessment for any final rule that may affect family well-
being. This final rule would not have any impact on the autonomy or
integrity of the family as an institution. Accordingly, DOE has
concluded that it is not necessary to prepare a Family Policymaking
Assessment.
L. Review Under the Treasury and General Government Appropriations Act,
2001
Section 515 of the Treasury and General Government Appropriations
Act, 2001 (44 U.S.C. 3516) provides for Federal agencies to review most
disseminations of information to the public under guidelines
established by each agency pursuant to general guidelines issued by
OMB. OMB's guidelines were published at 67 FR 8452 (February 22, 2002),
and DOE's guidelines were published at 67 FR 62446 (October 7, 2002).
Pursuant to OMB Memorandum M-19-15, Improving Implementation of the
Information Quality Act (April 24, 2019), DOE published updated
guidelines which are available at: <a href="http://www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf">www.energy.gov/sites/prod/files/2019/12/f70/DOE%20Final%20Updated%20IQA%20Guidelines%20Dec%202019.pdf</a>.
DOE has reviewed this final rule and will ensure that information
produced under this regulation remains consistent with the applicable
OMB and DOE guidelines.
M. Congressional Review
As required by 5 U.S.C. 801, DOE will report to Congress on the
promulgation of this rule prior to its effective date. The report will
state that the rule does not, meet the criteria set forth in 5 U.S.C.
804(2).
VI. Approval by the Office of the Secretary of Energy
The Secretary of Energy has approved publication of this Final
rule.
List of Subjects in 10 CFR Part 1008
Administration practice and procedure, Freedom of information,
Privacy, Reporting and recordkeeping requirements.
Signing Authority
This document of the Department of Energy was signed on December
11, 2024, by Ann Dunkin, Senior Agency Official for Privacy, pursuant
to delegated authority from the Secretary of Energy. That document with
the original signature and date is maintained by DOE. For
administrative purposes only, and in compliance with requirements of
the Office of the Federal Register, the undersigned DOE Federal
Register Liaison Officer has been authorized to sign and submit the
document in electronic format for publication, as an official document
of the Department of Energy. This administrative process in no way
alters the legal effect of this document upon publication in the
Federal Register.
Signed in Washington, DC, on December 12, 2024.
Treena V. Garrett,
Federal Register Liaison Officer, U.S. Department of Energy.
For the reasons set forth in the preamble, the Department of Energy
amends part 1008 of chapter X of title 10 of the Code of Federal
Regulations as set forth below:
PART 1008--RECORDS MAINTAINED ON INDIVIDUALS (PRIVACY ACT)
0
1. The authority citation for part 1008 continues to read as follows:
Authority: 42 U.S.C. 7101 et seq.; 50 U.S.C. 2401 et seq.; 5
U.S.C. 552; 5 U.S.C. 552a; 42 U.S.C. 7254; and 5 U.S.C. 301. Section
1008.22(c) also issued under 42 U.S.C. 405 note.
0
2. Amend Sec. 1008.12 by adding paragraph (b)(1)(ii)(N) to read as
follows:
Sec. 1008.12 Exemptions.
* * * * *
(b) * * *
(1) * * *
(ii) * * *
[[Page 101850]]
(N) Research, Technology, and Economic Security Due Diligence
Review Records (DOE-85).
* * * * *
[FR Doc. 2024-29666 Filed 12-16-24; 8:45 am]
BILLING CODE 6450-01-P
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