Implementation of the Privacy Act of 1974
| Published date | 30 April 2019 |
| Citation | 84 FR 18216 |
| Record Number | 2019-08753 |
| Section | Proposed rules |
| Court | National Endowment For The Humanities,National Foundation On The Arts And Humanities |
Federal Register, Volume 84 Issue 83 (Tuesday, April 30, 2019)
[Federal Register Volume 84, Number 83 (Tuesday, April 30, 2019)]
[Proposed Rules]
[Pages 18216-18220]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-08753]
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NATIONAL FOUNDATION ON THE ARTS AND HUMANITIES
National Endowment for the Humanities
45 CFR Part 1169
RIN 3136-AA18
Implementation of the Privacy Act of 1974
AGENCY: National Endowment for the Humanities.
ACTION: Proposed rule with request for comments.
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SUMMARY: The National Endowment for the Humanities (``NEH'') is
proposing to issue regulations to implement the Privacy Act of 1974
(the ``Privacy Act''). These regulations would establish procedures by
which an individual may determine whether a system of records
maintained by NEH contains a record pertaining to him or her; gain
access to such records; and request correction or amendment of such
records. These regulations also would establish exemptions from certain
Privacy Act requirements for all or part of certain systems of records
maintained by NEH.
DATES: Send comments on or before May 30, 2019.
ADDRESSES: You may send comments by any of the following methods:
Email: [email protected]. Include ``Implementation of the
Privacy Act'' in the subject line of the email.
Mail: National Endowment for the Humanities, Office of the
General Counsel, 400 7th Street SW, Room 4060, Washington, DC 20506.
Fax: (202) 606-8600.
FOR FURTHER INFORMATION CONTACT: Elizabeth Voyatzis, Deputy General
Counsel, Office of the General Counsel,
[[Page 18217]]
National Endowment for the Humanities, 400 7th Street SW, Room 4060,
Washington, DC 20506 (202) 606-8322; [email protected].
SUPPLEMENTARY INFORMATION: NEH operates as part of the National
Foundation on the Arts and the Humanities (the ``Foundation'') under
the National Foundation of the Arts and the Humanities Act of 1965, as
amended (20 U.S.C. 951 et seq.). The Foundation consists of the
Institute of Museum and Library Services (``IMLS''), the Federal
Council on the Arts and the Humanities (``FCAH''), the National
Endowment for the Arts (``NEA''), and NEH. NEH currently follows
Foundation regulations implementing the Privacy Act, located at part
1115 within Subchapter A of 45 CFR Chapter XI.
The regulations found within 45 CFR Chapter XI, Subchapter A apply
to the entire Foundation. This proposed rule will add Privacy Act
regulations to 45 CFR Chapter XI, Subchapter D (45 CFR part 1169),
replacing the Foundation's Privacy Act regulations with regard to NEH.
IMLS and NEA have already added IMLS and NEA-specific Privacy Act
regulations to 45 CFR XI, Subchapters B and E (45 CFR parts 1159 &
1182), respectively, which replaced the Foundation's Privacy Act
regulations with regard to IMLS and NEA. FCAH, which relies upon NEA
and NEH for its administration, does not maintain any systems of
records of its own, and hence has no need or obligation to publish
Privacy Act regulations. See 5 U.S.C. 552a(f) (requiring only that an
agency that ``maintain[s] a system of records shall promulgate rules''
implementing the Privacy Act).
The Foundation's Privacy Act regulations set forth in 45 CFR
Chapter XI, Subchapter A contain outdated address and contact
information, as well as outdated procedures by which an individual may
request access to his or her records. Through this rulemaking, NEH
seeks to put into place current contact information, as well as update
and clarify the procedures NEH will follow when granting access to, or
amending or correcting, a record contained within a system of records.
NEH will also add a new exemption covering its system of records
entitled ``Office of Inspector General (``OIG'') Investigative Files,''
which did not exist when the Foundation published its Privacy Act
regulations.
Because NEH is the only agency that continues to use the Foundation
regulations at 45 CFR Chapter XI, Subchapter A, rather than amend the
Foundation regulations--which, along with future amendments, requires
coordination with IMLS and NEA--NEH has chosen instead to issue its own
Privacy Act regulations. In the event this proposed rule becomes final,
NEH will seek NEA and IMLS's consent to publish a joint rulemaking
removing the Foundation's Privacy Act regulation at 45 CFR part 1115,
as that regulation will no longer apply to any of the Foundation's
constituent agencies.
This proposed rulemaking largely tracks the format and content of
the Foundation's Privacy Act regulations, and sets out few substantive
changes. In addition to adding the exemption described above for the
OIG Investigative Files, NEH also has modernized the procedures by
which individuals may request access to records pertaining to them, and
by which NEH will verify an individual's identity and provide access to
requested records. It has also extended its appeals process to cover
NEH decisions to deny individuals' requests for access to records, in
addition to NEH decisions to deny individuals' requests to amend or
correct records.
In keeping with the Foundation's Privacy Act regulations, NEH will
continue to claim an exemption under 5 U.S.C. 552a(k)(5) with respect
to the identity of persons supplying reference reports or evaluations
for individual applicants for NEH fellowships or grants. In practice,
the exercise of this exemption has required that NEH withhold both the
actual identity of the reference, as well as all or some of the
reference reports and evaluations, since the comments reflected in such
documents in many cases reflect the identity of the reference. NEH
obtains and keeps such reference reports confidential to ensure that
references be given, and evaluations made, with complete candor.
Executive Order 12866: Regulatory Planning and Review and Executive
Order 13563: Improving Regulation and Regulatory Review
This action is not a significant regulatory action and was
therefore not submitted to the Office of Management and Budget (OMB)
for review.
Executive Order 13771: Reducing Regulations and Controlling Regulatory
Costs
This action is not expected to be an Executive Order 13771
regulatory action because this action is not significant under
Executive Order 12866.
Paperwork Reduction Act of 1995 (``PRA'')
This action does not impose an information collection burden under
the PRA. This action contains no provisions constituting a collection
of information under the PRA.
Regulatory Flexibility Act of 1980 (``RFA'')
This action will not have a significant economic impact on a
substantial number of small entities under the RFA. This action will
not impose any requirements on small entities.
Unfunded Mandates Reform Act of 1995 (``UMRA'')
This action does not contain any unfunded mandate as described in
the UMRA, 2 U.S.C. 1531-1538, and does not significantly or uniquely
affect small governments.
Executive Order 13132 (Federalism)
This action does not have federalism implications. It will not have
substantial 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.
Executive Order 13175: Consultation and Coordination With Indian Tribal
Governments
This action does not have tribal implications as specified in
Executive Order 13175. Thus, Executive Order 13175 does not apply to
this action.
List of Subjects in 45 CFR Part [X]
Administrative practice and procedure, Privacy.
For the reasons stated in the preamble, the National Endowment for
the Humanities proposes add part 1169 to 45 CFR Chapter XI Subchapter D
as follows:
PART 1169--PRIVACY ACT REGULATIONS
Sec.
1169.1 Purpose and scope.
1169.2 Definitions.
1169.3 Inquiries about NEH's systems of records or implementation of
the Privacy Act.
1169.4 Procedures for determining if an individual is the subject of
an NEH record.
1169.5 Procedures for acquiring access to NEH records pertaining to
an individual.
1169.6 Identification required when requesting access to NEH records
pertaining to an individual.
1169.7 Procedures for amending or correcting an individual's NEH
record.
1169.8 The appeals process.
[[Page 18218]]
1169.9 Fees charged to locate, review, or copy records.
1169.10 NEH systems of records that are covered by exemptions under
the Privacy Act.
1169.11 Penalties for obtaining an NEH record under false pretenses.
Authority: 5 U.S.C. 552a(f).
Sec. 1169.1 Purpose and scope.
The regulations in this part set forth NEH's procedures under the
Privacy Act, as required by 5 U.S.C. 552a(f), with respect to systems
of records maintained by NEH. These regulations establish procedures by
which an individual may exercise the rights granted by the Privacy Act
to determine whether an NEH system of records contains a record
pertaining to him or her; gain access to such records; and request
correction or amendment of such records. The regulations also set
identification requirements; establish procedures by which an
individual may appeal within NEH an adverse agency determination;
prescribe fees which NEH will charge for copying records; and establish
exemptions from certain requirements of the Privacy Act for certain NEH
systems of records or parts thereof.
Sec. 1169.2 Definitions.
The definitions of the Privacy Act apply to this part. In addition,
as used in this part:
Agency means any executive department, military department,
Government corporation, or other establishment in the executive branch
of the Federal government, including the Executive Office of the
President or any independent regulatory agency;
Business day means a calendar day, excluding Saturdays, Sundays,
and legal public holidays;
Chairperson means the Chairperson of NEH, or his or her designee;
General Counsel means the General Counsel of NEH, or his or her
designee;
Individual means any citizen of the United States or an alien
lawfully admitted for permanent residence;
Maintain means to collect, use, store, or disseminate records, as
well as any combination of these recordkeeping functions. The term also
includes exercise of control over and, therefore, responsibility and
accountability for, systems of records;
NEH means the National Endowment for the Humanities;
NEH system means a system of records maintained by NEH;
Privacy Act means the Privacy Act of 1974, as amended (5 U.S.C.
552a);
Record means any item, collection, or grouping of information about
an individual, including, but not limited to, information regarding an
individual's education, financial transactions, medical history, and
criminal or employment history and that contains the individual's name
or another identifying particular, such as a number or symbol assigned
to the individual, or his or her fingerprint, voice print, or
photograph.
Routine use means, with respect to disclosure of a record, the use
of a record for a purpose that is compatible with the purpose for which
it was collected; and
System of records means a group of records under the control of NEH
from which NEH retrieves information by use of an individual's name or
by some number, symbol, or other identifying particular assigned to an
individual.
Sec. 1169.3 Inquiries about NEH's systems of records or
implementation of the Privacy Act.
Inquiries about NEH's systems of records or implementation of the
Privacy Act should be sent by email to [email protected] or by mail to
the following address: National Endowment for the Humanities; Office of
the General Counsel; 400 Seventh Street SW, Fourth Floor, Washington,
DC 20506.
Sec. 1169.4 Procedures for determining if an individual is the
subject of an NEH record.
(a) NEH has published notice of its systems of records in the
Federal Register and also has made such information available on the
privacy program page of the NEH website. Any individual desiring to
know whether a specific system of records contains a record pertaining
to him or her should address such inquiries in writing to the Office of
the General Counsel at the email or physical address identified in
Sec. 1169.3.
(b) The written inquiry described above should refer to the
specific system or systems of records listed in the NEH Notice of
Systems of Records, or describe the type of record in sufficient detail
reasonably to identify the relevant system of records.
(c) At a minimum, the request should contain sufficient identifying
information to allow NEH to determine if there is a record pertaining
to the individual making the request in a particular system of records.
NEH reserves the right to solicit from an individual submitting such
inquiry proof of identification, depending upon the sensitivity of the
request.
(d) NEH will attempt to respond to an inquiry regarding whether a
record exists within 10 business days of receiving the inquiry, or 10
business days from the time any required identification is established,
whichever is later. Such a response will contain or reference the
procedures that the individual must follow in order to gain access to
any such records.
Sec. 1169.5 Procedures for acquiring access to NEH records
pertaining to an individual.
(a) An individual may request access to his or her own records
contained within an NEH system of records by writing to the Office of
the General Counsel at the email or physical address identified in
Sec. 1169.3. The individual making the request should include his or
her full name, address, email address, and telephone number. The
individual making the request should also specifically indicate whether
he or she wishes to review such records in person.
(b) The request for access to a record within a system of records
should refer to the specific system or systems of records listed in the
NEH Notice of Systems of Records within which NEH may retrieve the
individual's records, or describe the type of record in sufficient
detail such that NEH may reasonably identify the relevant system of
records. The request should further state that it is made pursuant to
the Privacy Act. In addition, the request should include any other
information which may permit NEH to identify the record for which
access is being requested, such as maiden name, dates of employment,
etc.
(c) Where an individual requests records pertaining to himself or
herself, NEH will process such request under both these regulations and
NEH's regulations implementing the Freedom of Information Act
(``FOIA''), set forth in 45 CFR part 1171, so as to provide the
greatest degree of lawful access.
(d) Upon receipt of any such request, NEH will determine whether
the records identified by the requester exist and whether they are
subject to any exemption under Sec. 1169.10. Should NEH determine that
the records are releasable under the Privacy Act and these regulations,
and upon verifying the individual's identity per Sec. 1169.6. NEH will
provide access to copies of the records by transmitting them to the
requester at the mailing or email address provided by the requester, or
by permitting the requester to inspect the records at NEH's offices
should the requester ask for in-person inspection or where the
requester is a current NEH employee.
(e) NEH will acknowledge a request for access as soon as
practicable, and in no event in less than 5 business days. Consistent
with the agency's FOIA regulations, NEH will otherwise
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substantively answer a request for access in no less than 20 business
days, except when NEH determines otherwise, in which case NEH will
inform the person making the request of the reasons for the delay and
the estimated date by which NEH will answer the request. When NEH can
answer the request within 20 business days, the response shall include
the following:
(i) A statement that there is no record as requested or a statement
that there is no such record in the systems of records maintained by
NEH;
(ii) A statement as to whether NEH will grant access by providing a
copy of the record through the mail or email; or, where an individual
requests in-person inspection, the address of the location and the date
and time at which the record may be examined. In the event the person
requesting access is unable to meet the specified date and time, he or
she may make alternative arrangements with NEH;
(iii) The amount of fees charged, if any (see Sec. 1169.9); and
(iv) Any documentation required by NEH to verify the identity of
the person making the request.
(f) NEH will provide only one copy of each requested record, based
on the fee schedule in Sec. 1169.9.
(g) Per 5 U.S.C. 552a(h), a parent of a minor, upon presenting
suitable personal identification, may act on behalf of the minor to
gain access to any record pertaining to the minor maintained by NEH in
a system of records. A legal guardian may similarly act on behalf of an
individual declared to be incompetent due to physical or mental
incapacity or age by a court of competent jurisdiction, upon the
presentation of the documents authorizing the legal guardian to so act,
and upon suitable personal identification of the guardian.
(h) In the event NEH gains access to a record by permitting in-
person inspection, the individual to which the record pertains may be
accompanied by a person of his or her choice to review the record.
Under such circumstances, NEH may require that the individual who is
the subject of the record furnish a written statement authorizing
discussion of the record in the accompanying person's presence.
(i) In accordance with this provision, NEH will disclose medical or
psychological records pertaining to an individual to whom they pertain
unless NEH determines, in consultation with a physician, that
disclosure of such records might adversely affect the individual to
whom they pertain. Under these circumstances, NEH will disclose this
information to a licensed physician designated by such individual in
writing.
Sec. 1169.6 Identification required when requesting access to NEH
records pertaining to an individual.
(a) Before granting access to personal information under the
Privacy Act, NEH may require that the individual requesting such access
provide reasonable proof of his or her identity.
(b) Except in the case of NEH employees and those individuals who
request in-person inspection, NEH generally will endeavor to provide
access to records via mail or email. In such instances, NEH will first
confirm that the physical and/or email addresses provided by the
requester match those contained with the NEH system of records.
Depending upon the sensitivity of the records requested, and whether
the addresses match as described in the preceding sentence, NEH may
also request that the individual verify his or her identity by
providing certain minimum identifying data, such as date or place of
birth and/or copies of a valid driver's license or passport. Where the
information sought is of a particularly sensitive nature, and/or where
the individual cannot provide the minimum identifying data described
above, NEH may require that the individual seeking access submit a
notarized statement of identity or a signed statement asserting and
acknowledging that knowingly or willfully seeking or obtaining access
to records about another person under false pretenses may result in a
fine of up to $5,000.
(c) NEH will provide access by in-person examination to NEH
employees as well as to individuals who specifically request disclosure
in person. In such instances, the individual requesting disclosure may
prove identity by producing an employee identification card, driver's
license, or other license, permit or pass used for routine
identification purposes. If the individual is unable to provide
suitable documentation or identification, NEH may require that he or
she stipulate, in writing, that knowingly or willingly seeking or
obtaining access to records about another person under false pretenses
is punishable by a fine of up to $5,000.
(d) Identity verification procedures shall not:
(i) Be so complicated as to discourage unnecessarily individuals
from seeking access to information about themselves;
(ii) Be required of an individual seeking access to records that
normally would be available under FOIA (see 45 CFR part 1171);
(iii) Require, as a condition to access, the provision of a social
security number, unless a social security number is the only means by
which NEH may retrieve the records that are the subject of the request;
or
(iv) Require the individual explain or justify his or her need for
access to any record under this part.
Sec. 1169.7 Procedures for amending or correcting an individual's NEH
record.
(a) Individuals are entitled to request amendments or corrections
of records pertaining to themselves pursuant to 5 U.S.C. 552a(d)(2).
Normally, amendments to this part are limited to correcting factual
matters and not matters of official judgment, such as grant proposal
evaluations, performance ratings, promotion potential, and job
performance appraisals.
(b) Individuals may request the amendment of records pertaining to
themselves by submitting a letter in writing to the NEH Office of the
General Counsel at the email or physical address identified in Sec.
1169.3. Such letter shall include the following information:
(i) Identification of the particular record to be amended or
corrected;
(ii) The NEH system from which the record was retrieved;
(iii) The precise correction or amendment sought, preferably in the
form of an edited copy of the record reflecting the desired
modification; and
(iv) Reasons for requesting amendment or correction of the record,
including copies of available documentary evidence supporting the
request, where applicable.
(v) The individual seeking action under this provision bears the
burden of demonstrating to NEH that a record should be amended or
corrected.
(c) NEH will acknowledge a request for amendment or correction as
soon as practicable, and in no event less than 5 business days.
(d) When NEH has previously verified the individual's identity
pursuant to Sec. Sec. 1169.6(b) or 1169.6(c), it will not require
further verification of identity so long as the request for amendment
or correction does not suggest a need for additional verification. If
NEH has not previously verified the individual's identity, it may
require that the individual validate his or her identity as described
in Sec. Sec. 1169.6(b) or 1169(c).
(e) To the extent possible, NEH will render a decision upon a
request to amend a record no less than 20 business days after receiving
such a request. In the event NEH cannot render a decision within that
time frame, it will so inform the individual who made the request and
provide an expected date for a
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decision. Any such decision will include the following information:
(i) NEH's decision whether to grant in whole, or deny any part of,
the request to amend or correct the record;
(ii) The reasons for the determination for any portion of the
request which is denied;
(iii) A statement that any denial may be appealed pursuant to the
procedures set forth in Sec. 1169.8; and
(iv) The name and address of the official to whom an individual may
submit an appeal of denial.
(f) NEH will forward requests to amend or correct a record governed
by the regulations of another agency to such agency for processing, and
inform the person who submitted such request in writing of its
referral.
Sec. 1169.8 The appeals process.
(a) An individual whose request for access to, or correction or
amendment of, a record is initially denied by NEH and who wishes to
appeal that denial may do so by sending a letter within 90 days of
receipt of the initial denial to the Chairperson. If an appeal concerns
records retrieved from the OIG's Investigative Files, the OIG will act
on the appeal and will carry out all responsibilities with respect to
Privacy Act appeals otherwise assigned to the Chairperson under this
section.
(b) The appeal letter must:
(i) Specify the records subject to the appeal;
(ii) Include the information specified in Sec. 1169.7(b);
(iii) Include copies of the correspondence from NEH in which it
initially denied the request for access, or for amendment or
correction; and
(iv) Explain why NEH's denial of access, amendment or correction
was erroneous.
(b) Appeals should be directed to the NEH Office of the General
Counsel at the physical address or email address identified in Sec.
1169.3. The Office of the General Counsel will refer the appeal letter
to the Chairperson (or his or his or her designee), or in the case of
records retrieved from NEH's OIG Investigative Files, will refer the
appeal letter to the NEH OIG.
(c) The Chairperson will review the initial request for access to,
or amendment or correction of, the record, NEH's refusal, and any other
pertinent material relating to the appeal. NEH will not hold a hearing
on the appeal.
(d) The Chairperson will render a final decision on the appeal
within 30 business days of its receipt by NEH, unless the Chairperson,
for good cause shown, extends the 30-day period. Should the Chairperson
extend the 30-day period, NEH will inform the requester of the
extension and the circumstances of the delay.
(e) In conducting appeals under this provision, the Chairperson
will be guided by the requirements of 5 U.S.C. 552a(e)(1) and (e)(5).
(f) NEH will notify a requester, in writing, when the Chairperson
determines to grant an appeal in whole or in part, and will grant the
requester access to his or her record, or correct or amend the record,
in accordance with the Chairperson's determination.
(g) When the Chairperson determines to deny an appeal, in whole or
in part, NEH will notify the requester in writing of the following:
(i) The basis for the decision;
(ii) That the requester may submit to NEH a concise statement
setting forth the reasons for disagreeing with NEH's decision;
(iii) The procedures for filing such statement of disagreement;
(iv) That, in a case where the Chairperson refuses a request to
amend or correct a record, NEH will make such statements of
disagreement available in subsequent disclosures of the record,
together with a statement from NEH (if deemed appropriate) summarizing
the agency's refusal; and
(v) The requester's right to seek judicial review under 5 U.S.C.
552a(g)(1)(a).
Sec. 1169.9 Fees charged to locate, review, or copy records.
(a) NEH will not charge fees for the search or review of requested
records, or the amendment or correction of records.
(b) NEH will not charge fees for providing the first copy of a
record or any portion of a record to whom the record pertains. NEH will
otherwise charge copying fees at the same rate, and using the same
procedures, that NEH has established for FOIA requests.
Sec. 1169.10 NEH systems of records that are covered by exemptions
under the Privacy Act.
(a) Pursuant to and limited by 5 U.S.C. 552a(j)(2), the NEH system
entitled ``Office of the Inspector General Investigative Files'' shall
be exempted from the provisions of 5 U.S.C. 552a, except for sections
(b); (c)(1) and (2); (e)(4)(A) through (F); (e)(6), (7), (9), (10), and
(11); and (i), insofar as that NEH system contains information
pertaining to criminal law enforcement investigations. NEH has
implemented this exemption because application of these provisions of
the Privacy Act might alert investigation subjects to the existence or
scope of investigations; lead to suppression, alteration, fabrication,
or destruction of evidence; disclose investigative techniques or
procedures; reduce the cooperativeness or safety of witnesses; or
otherwise impair investigations.
(b) Pursuant to and limited by 5 U.S.C. 552a(k)(2), the NEH system
entitled ``Office of the Inspector General Investigative Files'' shall
be exempted from 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and
(I); and (f), insofar as that NEH system consists of investigatory
material compiled for law enforcement purposes, other than material
within the scope of the exemption at 5 U.S.C. 552a(j)(2).
(c) Pursuant to and limited by 5 U.S.C. 552a(k)(5), the NEH system
entitled ``Grants and Cooperative Agreements: Electronic Grant
Management System'' shall be exempted from 5 U.S.C. 552a(c)(3); (d);
(e)(1); (e)(4)(G), (H), and (I); and (f), insofar as that NEH system
consists of materials which would reveal the identity of references for
fellowship or grant applicants.
(d) Records on applicants for employment at NEH are covered by the
Office of Personnel Management government-wide system notice
``Recruiting, Examining, and Placement Records.'' These records are
exempted as claimed in 5 CFR 297.501(b)(7).
(e) Pursuant to 5 U.S.C. 552a(d)(5), nothing within these
regulations shall allow an individual access to any information
compiled in reasonable anticipation of a civil action or proceeding.
(f) NEH may also assert exemptions for records received from
another agency that could properly be claimed by that agency in
responding to a request.
Sec. 1169.11 Penalties for obtaining an NEH record under false
pretenses.
Under 5 U.S.C. 552a(i)(3), any person who knowingly and willfully
requests or obtains any record from NEH concerning an individual under
false pretenses shall be guilty of a misdemeanor and fined not more
than $5,000.
Dated: April 25, 2019.
Elizabeth Voyatzis,
Deputy General Counsel, National Endowment for the Humanities.
[FR Doc. 2019-08753 Filed 4-29-19; 8:45 am]
BILLING CODE 7536-01-P
