FR Doc E8-10110[Federal Register: May 8, 2008 (Volume 73, Number 90)]
[Proposed Rules]
[Page 26056-26059]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08my08-31]
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DEPARTMENT OF EDUCATION
34 CFR Part 5b
[Docket ID ED-2008-OM-0004]
RIN 1880-AA85
Privacy Act Regulations
AGENCY: Office of Management, Department of Education.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Department of Education (Department) proposes to amend its
regulations implementing the Privacy Act of 1974, as amended (Privacy
Act). These proposed regulations would amend the Department's current
Privacy Act regulations to exempt from certain Privacy Act requirements
investigative material in a new system of records to be maintained by
the Department that will be known as the Office of Inspector General
Data Analytics System (ODAS) (18-10-02). Specifically, the exemption
would apply to materials compiled by the Department's Office of
Inspector General (OIG) for law enforcement purposes to identify
internal control weaknesses and system issues and to improve methods of
data modeling and
[[Page 26057]]
annual audit planning in order to detect and investigate fraud, waste,
and mismanagement in Department programs and operations.
DATES: We must receive your comments on or before June 9, 2008.
ADDRESSES: Submit your comments through the Federal eRulemaking Portal
or via postal mail, commercial delivery, or hand delivery. We will not
accept comments by fax or by e-mail. Please submit your comments only
one time, in order to ensure that we do not receive duplicate copies.
In addition, please include the Docket ID at the top of your comments.
Federal eRulemaking Portal: Go to http://www.regulations.gov to
submit your comments electronically. Information
on using Regulations.gov, including instructions for accessing agency
documents, submitting comments, and viewing the docket, is available on
the site under ``How To Use This Site.''
Postal Mail, Commercial Delivery, or Hand Delivery. If you
mail or deliver your comments about these proposed regulations, address
them to Regulatory Information Management Services, Office of
Management, U.S. Department of Education, 400 Maryland Avenue, SW.,
Room 8166, Washington, DC 20202-5920. Attention: NOPR Comments.
Privacy Note: The Department's policy for comments received from
members of the public (including those comments submitted by mail,
commercial delivery, or hand delivery) is to make these submissions
available for public viewing in their entirety on the Federal
eRulemaking Portal at www.regulations.gov. Therefore, commenters
should be careful to include in their comments only information that
they wish to make publicly available on the Internet.
FOR FURTHER INFORMATION CONTACT: Shelley Shepherd, Office of Inspector
General, U.S. Department of Education, 400 Maryland Avenue, SW., room
8166, Washington, DC 20202-5920. Telephone: (202) 245-7077.
If you use a telecommunications device for the deaf (TDD), you may
call the Federal Relay Service (FRS) at 1-800-877-8339.
Individuals with disabilities may obtain this document in an
alternative format (e.g., Braille, large print, audiotape, or computer
diskette) on request to the contact person listed under FOR FURTHER
INFORMATION CONTACT.
SUPPLEMENTARY INFORMATION:
Invitation to Comment
We invite you to submit comments regarding these proposed
regulations. We also invite you to assist us in complying with the
specific requirements of Executive Order 12866 and its overall
requirement of reducing regulatory burden that might result from these
proposed regulations. Please let us know of any further opportunities
we should take to reduce potential costs or increase potential benefits
while preserving the effective and efficient administration of the
program.
During and after the comment period, you may inspect all public
comments about these proposed regulations by accessing Regulations.gov.
You may also inspect the comments, in person, at the National Library
of Education, 400 Maryland Avenue, SW., Washington, DC 20202, between
the hours of 8:30 a.m. and 4 p.m., Eastern time, Monday through Friday
of each week except Federal holidays. For more information on
inspecting public comments call (202) 205-4410.
Assistance to Individuals With Disabilities in Reviewing the Rulemaking
Record
On request, we will supply an appropriate aid to an individual with
a disability who needs assistance to review the comments or other
documents in the public rulemaking record for these proposed
regulations. If you want to schedule an appointment for this type of
aid, please contact the person listed under FOR FURTHER INFORMATION
CONTACT.
Background
Under the Inspector General Act of 1978, as amended (5 U.S.C.
Appendix) Inspectors General, including the Department's Inspector
General (OIG), are responsible for conducting, supervising, and
coordinating audits and investigations relating to programs and
operations of the Federal agency for which their office is established.
The Department intends to establish a new system of records entitled
the ``Office of Inspector General Data Analytics System'' (ODAS) (18-
10-02) in order to facilitate the OIG's performance of this statutory
duty.
The new system of records will be managed by the OIG's Information
Technology Audits and Computer Crimes Investigations (ITACCI) division,
which is responsible for providing computer programming, data
acquisition and analysis and statistical modeling in support of OIG
operations. ITACCI will use this new system of records to gather data
from Department systems and analyze them using data modeling techniques
to detect waste, fraud, abuse, and internal control weaknesses and to
identify potential violations of laws, rules and regulations. These
data will include information related to transactions between the
Department and individuals and entities that have applied for and/or
received grants, contracts, loans, or payments from the Department.
ITACCI will conduct data modeling on these data, using statistical and
mathematical techniques, in order to predict anomalies indicating
fraudulent activity and to predict which transactions have a high
probability of fraudulent activity.
ITACCI will review this information to determine whether further
action is warranted. If so, ITACCI will refer potential violations of
law, rules, or regulations that it identifies to other divisions of OIG
for investigation, audit, or inspection, as appropriate. Thus, the ODAS
will contain data related to transactions with the Department, as well
as information related to ITACCI's review and investigation of that
data for law enforcement purposes.
Pursuant to section (k)(2) of the Privacy Act (5 U.S.C. 552a), the
Secretary, through rulemaking, may exempt from a limited number of
Privacy Act requirements a system of records that contains
investigatory materials compiled for law enforcement purposes. The
investigatory materials in the ODAS will fall within the scope of
section (k)(2) of the Privacy Act because the system will consist of
investigatory materials compiled for purposes of enforcing Federal
legal requirements applicable to individuals and entities receiving
Department funds.
Significant Proposed Regulations
Exempt Systems (Sec. 5b.11(c))
Statute: Section (k)(2) of the Privacy Act provides that the head
of any agency may promulgate rules to exempt any system of records from
the requirements in sections (c)(3), (d), (e)(1), (e)(4)(G), (H), and
(I), and (f) of the Privacy Act if the system of records contains
investigatory material compiled for law enforcement purposes other than
material related to criminal subjects and investigations that is within
the scope of section (j)(2) of the Privacy Act. Section (k)(2)
provides, however, that, in the event that any individual is denied any
right, privilege, or benefit that the individual would otherwise be
entitled to by Federal law, or for which the individual would otherwise
be eligible, as a result of the maintenance of the material, the
material must be provided to the individual, unless the disclosure of
such material would reveal the identity of a source who furnished the
information to the Department under an express
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promise, or, prior to September 27, 1975, an implied promise that the
identity of the source would be held in confidence.
Current Regulations: The Department does not currently claim any
exemption under section (k)(2) of the Privacy Act for the investigatory
materials that will be maintained in the ODAS. However, the Department
claims exemptions under this section for two other OIG systems of
records--the Investigative Files of the Inspector General (18-10-01)
and the Hotline Complaint Files of the Inspector General (18-10-04).
Proposed Regulations: The Department proposes to claim an exemption
under section (k)(2) of the Privacy Act for investigatory materials
that will be maintained in the ODAS.
Reasons: As authorized by section (k)(2) of the Privacy Act and for
the reasons specified in this section, the Secretary of Education
proposes to exempt investigatory material compiled for law enforcement
purposes in the ODAS from the following provisions of the Privacy Act
and corresponding Departmental regulations:
1. Section (c)(3) of the Privacy Act (5 U.S.C. 552a(c)(3)) and 34
CFR 5b.9(c)(3) require the Department to make an accounting of
disclosures from a system of records available to the individual named
in the record at the individual's request. The Secretary proposes to
exempt the investigatory material compiled for law enforcement purposes
in the ODAS because if OIG made this accounting available to a target
individual, it could impede or compromise the OIG's investigation
efforts by prematurely revealing its existence and nature. In addition,
if OIG were to make this accounting available to a target individual,
the target could compromise, interfere with, or make witnesses
reluctant to cooperate with the OIG investigation, and this could lead
to the suppression, alteration, or destruction of evidence.
2. Sections (d)(1) through (4) and (f) of the Privacy Act (5 U.S.C.
552a(d)(1) through (4) and (f)) and 34 CFR 5b.5(a)(1) and (c), 5b.7,
and 5b.8 require the Department to provide access to records pertaining
to an individual requestor, to follow specific procedures relating to
requests for correction or amendment of records, and to notify an
individual of the existence of records pertaining to him or her upon
request. The Secretary proposes to exempt the investigatory material
compiled for law enforcement purposes in the ODAS from these
requirements because providing an individual with access to
investigative materials and permitting the individual to contest the
records' contents and to try to force changes to the information
contained therein could interfere with and compromise the ability of
OIG to conduct an orderly and unbiased investigation of potential
violations of laws, rules, and regulations.
3. Section (e)(1) of the Privacy Act (5 U.S.C. 552a(e)(1)) and 34
CFR 5b.4(a)(1) require the Department to maintain in its records only
``relevant and necessary'' information about an individual. This
provision is inappropriate for OIG's investigatory duties because it is
not always possible to detect the relevance or necessity of each piece
of information reported to the OIG or collected in the preliminary
phase of an investigation. In some cases, it is only after the
information is evaluated in light of other evidence that its relevance
and necessity are clear. In other cases, what may appear to be a
relevant and necessary piece of information may become irrelevant in
light of further inquiry or investigation. In order not to impede the
OIG's investigation of potential violations of laws, rules, and
regulations, the Secretary believes it is appropriate to exempt the
investigatory materials in the ODAS from this requirement.
4. Section (e)(4)(G) and (H) of the Privacy Act (5 U.S.C.
552a(e)(4)(G) and (H)) require the Department to publish notice of
procedures for notification, access, and correction of records in the
system. If the Department exempts the investigatory materials in the
ODAS from the underlying Privacy Act requirements, notification of
these requirements would be illogical. For this reason, the Department
proposes to exempt the ODAS investigatory materials from this
requirement as well.
Executive Order 12866
1. Potential Costs and Benefits
Under Executive Order 12866, we have assessed the potential costs
and benefits of this regulatory action. The potential costs associated
with the proposed regulations are those resulting from statutory
requirements and those we have determined to be necessary for
administering this program effectively and efficiently.
In assessing the potential costs and benefits--both quantitative
and qualitative--of this regulatory action, we have determined that the
benefits would justify the costs.
Summary of Potential Costs and Benefits
We do not view this proposed regulatory action as imposing any new
costs as the Department is proposing only to exempt itself from having
to meet limited Privacy Act requirements. We view the potential
benefits as decreasing the risk that individual(s) whose actions are
being investigated could interfere with or compromise the ability of
the OIG to conduct an orderly and unbiased investigation of potential
violations of laws, rules, and regulations.
2. Clarity of the Regulations
Executive Order 12866 and the Presidential memorandum on ``Plain
Language in Government Writing'' require each agency to write
regulations that are easy to understand.
The Secretary invites comments on how to make these proposed
regulations easier to understand, including answers to questions such
as the following:
Are the requirements in the proposed regulations clearly
stated?
Do the proposed regulations contain technical terms or
other wording that interferes with their clarity?
Does the format of the proposed regulations (grouping and
order of sections, use of headings, paragraphing, etc.) aid or reduce
their clarity?
Would the proposed regulations be easier to understand if
we divided them into more (but shorter) sections? (A ``section'' is
preceded by the symbol ``Sec. '' and a numbered heading; for example,
Sec. 5b.11 Exempt systems.)
Could the description of the proposed regulations in the
``Significant Proposed Regulations'' section be more helpful in making
the proposed regulations easier to understand? If so, how?
What else could we do to make the proposed regulations
easier to understand?
Send any comments that concern how the Department could make these
proposed regulations easier to understand to the person listed in the
ADDRESSES section.
Regulatory Flexibility Act Certification
The Secretary certifies that these regulations would not have a
significant economic impact on a substantial number of small entities.
These regulations involve procedural rights of individuals under
the Privacy Act. Individuals are not considered to be ``entities''
under the Regulatory Flexibility Act.
Paperwork Reduction Act of 1995
These proposed regulations do not contain any information
collection requirements.
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Intergovernmental Review
This program is not subject to Executive Order 12372 and the
regulations in 34 CFR part 79.
Assessment of Educational Impact
The Secretary particularly requests comments on whether these
proposed regulations would require transmission of information that any
other agency or authority of the United States gathers or makes
available.
Electronic Access to This Document
You may view this document, as well as all other Department of
Education documents published in the Federal Register, in text or Adobe
Portable Document Format (PDF) on the Internet at the following site:
http://www.ed.gov/news/fedregister.
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Note: The official version of this document is the document
published in the Federal Register. Free Internet access to the
official edition of the Federal Register and the Code of Federal
Regulations is available on GPO Access at:
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(Catalog of Federal Domestic Assistance Number does not apply.)
List of Subjects in 34 CFR Part 5b
Privacy.
Dated: May 2, 2008.
Michell Clark,
Assistant Secretary for Management.
For the reasons discussed herein, the Department of Education
proposes to amend part 5b of title 34 of the Code of Federal
Regulations as follows:
PART 5b--PRIVACY ACT REGULATIONS
1. The authority citation for part 5b continues to read as follows:
Authority: 5 U.S.C. 301, 5 U.S.C. 552a.
2. Section 5b.11 is amended by revising paragraph (c)(1)
introductory text to read as follows:
Sec. 5b.11 Exempt systems.
* * * * *
(c) Specific systems of records exempted under (k)(2). (1) The
Department exempts the Investigative Files of the Inspector General ED/
OIG (18-10-01), the Hotline Complaint Files of the Inspector General
ED/OIG (18-10-04), and the Office of Inspector General Data Analytics
System (ODAS) (18-10-02) from the following provisions of 5 U.S.C. 552a
and this part to the extent that these systems of records consist of
investigatory material and complaints that may be included in
investigatory material compiled for law enforcement purposes:
* * * * *
[FR Doc. E8-10110 Filed 5-7-08; 8:45 am]
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