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Federal Register / Vol. 86, No. 177 / Thursday, September 16, 2021 / Proposed Rules
facilitates management of counterintelligence and insider threat investigations and activities associated with counterintelligence complaints, inquiries and investigations;
identification of potential threats to DOI
resources and information assets; and referrals of potential insider threats to internal and external partners. Insider threats include attempted or actual espionage, subversion, sabotage, terrorism or extremist activities directed against the DOI and its personnel, facilities, resources, and activities;
unauthorized use of or intrusion into automated information systems;
unauthorized disclosure of classified, controlled unclassified, sensitive, or proprietary-information or technology;
indicators of potential insider threats or other incidents that may indicate activities of an insider threat.
The system contains classified and unclassified intelligence and investigatory records related to counterintelligence and insider threat activities that are exempt from certain provisions of the Privacy Act, 5 U.S.C.
552aj and k. The DOI previously published a final rule in the Federal Register at 79 FR 68799 November 19, 2014 to amend DOI Privacy Act regulations at 43 CFR 2.254 to exempt certain records in this system from subsections c3, c4, d, e1
through e3, e4G through e4I, e5, e8, e12, f, and g of the Privacy Act pursuant to 5 U.S.C.
552aj2 and k2. In this notice of proposed rulemaking NPRM, DOI is proposing to claim additional exemptions from certain provisions of the Privacy Act pursuant to 5 U.S.C.
552ak1 and k5.
DOI previously published an NPRM
in the Federal Register at 85 FR 7515
February 10, 2020 to claim exemptions for the INTERIOR/DOI46, Physical Security Access Files, system of records that proposed a revision of the DOI
Privacy Act regulations at 43 CFR 2.254
to redesignate the existing paragraphs and add new paragraphs for additional exemptions under 5 U.S.C. 552ak. A
new paragraph b was reserved for exemptions claimed under 5 U.S.C.
552ak1 as indicated in this NPRM for the INTERIOR/DOI50, Insider Threat Program. The previous paragraph c for investigatory records exempt under 5
U.S.C. 552ak5 was redesignated to paragraph e to allow for a new paragraph d for exemptions claimed under 5 U.S.C. 552k3 related to records maintained in connection with providing protective services. The new and redesignated paragraphs proposed for section 2.254 will be effective upon publication of the INTERIOR/DOI46

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final rule in the Federal Register and will align with the exemptions proposed in this NPRM for the INTERIOR/DOI
50, Insider Threat Program.
Under 5 U.S.C. 552ak1, the head of a Federal agency may promulgate rules to exempt a system of records from certain provisions of the Privacy Act of 1974, 5 U.S.C. 552a, if the system of records is subject to the provisions of 5
U.S.C. 552b1 where the records are A specifically authorized under criteria established by an Executive Order to be kept secret in the interest of national defense or foreign policy, and B are in fact properly classified pursuant to such Executive Order. Some records in this system are deemed classified and subject to Executive Orders for the maintenance of records that must be kept secret in the interest of national security, such as Executive Order 12333, United States Intelligence Activities as amended; Executive Order 12829, National Industrial Security Program; Executive Order 12968, Access to Classified Information;
Executive Order 13526, Classified National Security Information; and Executive Order 13587, Structural Reforms to Improve the Security of Classified Networks and the Responsible Sharing and Safeguarding of Classified Information. Additionally, records in this system may be related to 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 that are exempt from one or more provisions of the Privacy Act pursuant to 5 U.S.C.
552ak5.
Because this system of records contains classified and investigative material within the provisions of 5
U.S.C. 552ak1 and k5, the DOI
proposes to exempt the system of records from one or more of the following provisions: 5 U.S.C.
552ac3, d, e1, e4G through e4I, and f. Where a release would not interfere with or adversely affect investigations or law enforcement activities, including but not limited to revealing sensitive information or compromising confidential sources, the exemption may be waived on a case-bycase basis. Exemptions from these particular subsections are justified for the following reasons:
1. 5 U.S.C. 552ac3. This section requires an agency to make the accounting of each disclosure of records available to the individual named in the record upon request. Release of accounting of disclosures would alert the subjects of an investigation to the
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existence of the investigation and the fact that they are subjects of the investigation. The release of such information to the subjects of an investigation would provide them with significant information concerning the nature of the investigation, and could seriously impede or compromise the investigation, endanger the physical safety of confidential sources, witnesses and their families, and lead to the improper influencing of witnesses, the destruction of evidence, or the fabrication of testimony.
2. 5 U.S.C. 552ad; e4G and e4H; and f. These sections require an agency to provide notice and disclosure to individuals that a system contains records pertaining to the individual, as well as providing rights of access and amendment. Granting access to records in the Insider Threat Program system could inform the subject of an investigation of an actual or potential criminal violation of the existence of that investigation, of the nature and scope of the information and evidence obtained, of the identity of confidential sources, witnesses, and law enforcement personnel, and could provide information to enable the subject to avoid detection or apprehension.
Granting access to such information could seriously impede or compromise an investigation; endanger the physical safety of confidential sources, witnesses, and law enforcement personnel, as well as their families; lead to the improper influencing of witnesses, the destruction of evidence, or the fabrication of testimony; and disclose investigative techniques and procedures. In addition, granting access to such information could disclose classified, securitysensitive, or confidential information and could constitute an unwarranted invasion of the personal privacy of others.
3. 5 U.S.C. 552ae1. This section requires the agency to maintain information about an individual only to the extent that such information is relevant or necessary. The application of this provision could impair investigations and law enforcement, because it is not always possible to determine the relevance or necessity of specific information in the early stages of an investigation. Relevance and necessity are often questions of judgment and timing, and it is only after the information is evaluated that the relevance and necessity of such information can be established. In addition, during the course of the investigation, the investigator may obtain information that is incidental to the main purpose of the investigation but which may relate to matters under
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