2024-12685
[Federal Register Volume 89, Number 117 (Monday, June 17, 2024)]
[Rules and Regulations]
[Pages 51208-51215]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-12685]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 146
RIN 3038-AF22
Privacy Act Regulations
AGENCY: Commodity Futures Trading Commission.
ACTION: Final rule.
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SUMMARY: The Commodity Futures Trading Commission (CFTC or Commission)
is adopting amendments to certain of its regulations regarding
exemptions for certain systems of records from one or more provisions
of the Privacy Act of 1974 (Privacy Act) in order to better conform to
the requirements of the Privacy Act and the guidance contained in
Office of Management and Budget (OMB) Circular A-108, Federal Agency
Responsibilities for Review, Reporting, and Publication Under the
Privacy Act (OMB A-108). The final rule more specifically identifies
the systems of records currently included in the regulation, adds
additional systems of records that the Commission is exempting,
enumerates the sections of the Privacy Act from which the Commission is
exempting each system of records, sets forth the reasons for those
exemptions, and reorganizes the regulations for ease of reference.
DATES: This rule is effective July 17, 2024.
FOR FURTHER INFORMATION CONTACT: Kellie Cosgrove Riley, Chief Privacy
Officer, [email protected], 202-418-5610, Office of the General Counsel,
Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st
Street NW, Washington, DC 20581.
SUPPLEMENTARY INFORMATION:
I. Background
A. The Privacy Act
The Privacy Act \1\ establishes a code of fair information practice
principles that govern Federal agencies' collection, maintenance, use,
and dissemination of an individual's personal information. The Privacy
Act applies to information that is maintained in a ``system of
records,'' defined as 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.\2\
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\1\ 5 U.S.C. 552a.
\2\ 5 U.S.C. 552a(a)(5).
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In addition to establishing a code of fair information practice
principles, the Privacy Act restricts disclosure of records containing
personal information that an agency maintains.\3\ The Privacy Act also
grants individuals an increased right of access to records maintained
about themselves as well as the right to request amendment of those
records upon a showing that they are not accurate, relevant, timely, or
complete.\4\ The Privacy Act also permits agencies, where certain
requirements are met and subject to limitations set forth in the
Privacy Act, to specifically exempt systems of records from certain
provisions of the Privacy Act, mainly pertaining to the Privacy Act's
provisions permitting individuals to access and request amendment of
their records.\5\ In order to claim an exemption, the agency must
engage in a rulemaking process pursuant to the Administrative Procedure
Act \6\ and make clear to the public why particular exemptions are
being invoked.\7\
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\3\ 5 U.S.C. 552a(b).
\4\ 5 U.S.C. 552a(d).
\5\ 5 U.S.C. 552a(j) and (k).
\6\ 5 U.S.C. 553.
\7\ 5 U.S.C. 552a(j) and (k).
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II. The Proposal
On February 2, 2024, the Commission published a notice of proposed
rulemaking (NPRM) \8\ to revise certain of the Commission's part 146
regulations.\9\ Current Commission regulations Sec. Sec. 146.12 and
146.13 (together, Privacy Act regulations) assert exemptions for
certain of the Commission's systems of records that contain records
related to the Commission's investigatory mission and personnel
security obligations. After reviewing those regulations, the Commission
preliminarily determined that the current Privacy Act regulations do
not include all of the systems of records for which the Commission
would, in fact, assert exemptions, and those systems of records that
are currently referenced are not clearly identified with each system of
records' number and accurate title. The Commission also preliminarily
determined to add more specificity regarding the rationale for
exempting each of the systems of records in order to better demonstrate
the Commission's compliance with sections (j) and (k) of the Privacy
Act \10\ and the corresponding guidance in OMB Circular A-108.\11\
[[Page 51209]]
OMB A-108, issued in 2016, provides that, at minimum, an agency's
Privacy Act exemption regulations shall include the specific name of
any systems of records that will be exempt pursuant to the regulations,
the specific provisions of the Privacy Act from which the systems of
records will be exempt and the reasons therefor, and an explanation of
why the exemption is necessary and appropriate.
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\8\ 89 FR 7307 (Feb. 2, 2024).
\9\ 17 CFR part 146.
\10\ 5 U.S.C. 552a(j) and (k).
\11\ OMB A-108, available at https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A108/omb_circular_a-108.pdf, at page 25.
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In the NPRM, the Commission proposed to identify more specifically
CFTC-10 Investigatory Records, CFTC-31 Closed Commission Meetings, and
CFTC-44 Personnel Clearance System, identified in the current Privacy
Act regulations as Exempted Investigatory Records, Exempted Closed
Commission Meetings, and Exempted Employee Background Investigation
Material, respectively; and proposed to add CFTC-1 Enforcement Matter
Register and Matter Indices, CFTC-12 National Futures Association (NFA)
Applications Suite System, and CFTC-49 Whistleblower Records. The
Commission also proposed to remove Privacy Act regulation Sec. 146.13,
which provides for exempting CFTC-32 Office of the Inspector General
Investigative Files, in favor of incorporating that system of records
and the corresponding exemptions into Privacy Act regulation Sec.
146.12. In addition, for all of the identified systems of records, the
Commission proposed to specifically enumerate each provision of the
Privacy Act from which each system of records was being exempted and
the rationale for each exemption. Finally, the Commission proposed to
reorganize the regulations for ease of reference.
III. Comments
The Commission requested comment on the justification for and the
scope of each of the proposed exemptions. The Commission received no
comments regarding the proposed modification to its Privacy Act
regulations nor regarding any of the related matters for which comment
was requested in the NPRM. Accordingly, the Commission is adopting the
proposed modifications with no changes for the reasons set forth in the
NPRM, as explained below.
IV. Final Rule
The Commission is modifying Privacy Act regulation Sec. 146.12 to
add additional systems of records that the Commission is exempting from
certain provisions of the Privacy Act, clearly identify those which it
has previously exempted, remove current Privacy Act regulation Sec.
146.13 in favor of adding the exemptions for the Office of Inspector
General's system of records to Sec. 146.12, and add more specificity
regarding the rationale for exempting each of the systems of records in
order to better demonstrate the Commission's compliance with sections
(j) and (k) of the Privacy Act \12\ and the corresponding guidance in
OMB Circular A-108.\13\ Specifically, the Commission is exempting the
following systems of records:
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\12\ 5 U.S.C. 552a(j) and (k).
\13\ OMB A-108, available at https://www.whitehouse.gov/wp-content/uploads/legacy_drupal_files/omb/circulars/A108/omb_circular_a-108.pdf, at page 25.
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1. CFTC-1 Enforcement Matter Register and Matter Indices (CFTC-1)
CFTC-1 contains an index and registry of enforcement
investigations. The Commission is exempting this system of records
because the records are compiled for law enforcement purposes and must
be protected from disclosure in order to maintain the integrity of the
investigative process and not provide to any individual an opportunity
to access records and compromise that process, such as through the
destruction of evidence, interference with witnesses, or otherwise. In
addition, the Commission is exempting this system of records in order
to keep confidential the identity of sources who provided information
to the Commission during the course of the investigation under an
express promise that their identities would remain confidential. If an
individual can access the identities of confidential sources, those
sources may be unwilling to provide information that the Commission
needs for its law enforcement activities. Specifically, the Commission
is exempting CFTC-1, pursuant to section (k)(2) of the Privacy Act \14\
and subject to the requirements and limitations set forth therein, from
the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3);
(d)(1) through (4); (e)(1); (e)(4)(G) through (I); and (f).
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\14\ 5 U.S.C. 552a(k)(2).
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2. CFTC-10 Investigatory Records (CFTC-10)
CFTC-10 contains records compiled for law enforcement purposes,
including records developed during an investigation of violations or
potential violations of the Commodity Exchange Act (CEA or Act).\15\
The Commission is identifying this system of records by its proper
title and number, rather than as ``Exempted Investigatory Records'' as
it was previously identified in the regulations, and setting forth the
specific reasons for which it is being exempted from particular
provisions of the Privacy Act. To that end, the Commission is exempting
this system of records because the records must be protected from
disclosure in order to maintain the integrity of the investigative
process and not provide an individual an opportunity to access records
and compromise that process, such as through the destruction of
evidence, interference with witnesses, or otherwise. In addition, the
Commission is exempting this system of records in order to keep
confidential the identity of sources who provided information to the
Commission during the course of the investigation under an express
promise that their identities would remain confidential. If an
individual can access the identities of confidential sources, those
sources may be unwilling to provide information that the Commission
needs for its law enforcement activities. Specifically, the Commission
is exempting CFTC-10, pursuant to section (k)(2) of the Privacy Act
\16\ and subject to the requirements and limitations set forth therein,
from the following provisions of the Privacy Act: 5 U.S.C. 552a(c)(3);
(d)(1) through (4); (e)(1); (e)(4)(G) through (I); and (f).
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\15\ 7 U.S.C. 1 et seq.
\16\ 5 U.S.C. 552a(k)(2).
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3. CFTC-12 National Futures Association (NFA) Applications Suite System
(CFTC-12)
CFTC-12 contains records held by NFA on behalf of the Commission by
delegated authority to support the Commission's registration and other
regulatory authority. These records include records pertaining to the
fitness of individuals to be registered with the Commission and engage
in business activities that are subject to the Commission's
jurisdiction and records pertaining to disciplinary or other adverse
action investigated or taken with respect to individual registrants.
The Commission is exempting this system of records because, to the
extent the records pertaining to individuals that NFA holds on behalf
of the Commission are investigatory records compiled for law
enforcement purposes, they must be protected from disclosure in order
to maintain the integrity of the investigative process and not provide
to any individual an opportunity to access records and compromise that
process, such as through the destruction of evidence, interference with
witnesses, or otherwise. In addition, the Commission is exempting this
system of records in order to keep confidential the identity of sources
who provided information to NFA acting on behalf of the Commission
during the course of the investigation under an express promise
[[Page 51210]]
that their identities would remain confidential. If an individual can
access the identities of confidential sources, those sources may be
unwilling to provide information that the Commission needs for its law
enforcement activities. Specifically, the Commission is exempting CFTC-
12, pursuant to section (k)(2) of the Privacy Act \17\ and subject to
the requirements and limitations set forth therein, from the following
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1) through (4);
(e)(1); (e)(4)(G) through (I); and (f).
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\17\ 5 U.S.C. 552a(k)(2).
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4. CFTC-31 Closed Commission Meetings (CFTC-31)
CFTC-31 contains records about individuals who are the subject of
discussion at closed Commission meetings, including those who are the
subject of investigations or who are being considered for employment.
The Commission is identifying this system of records by its proper
title and number rather than ``Exempted Closed Commission Meetings'' as
it was previously identified in the regulations and setting forth the
specific reasons for which it is being exempted from particular
provisions of the Privacy Act. To that end, to the extent the records
in this system of records pertain to law enforcement investigations,
the Commission is exempting this system of records because the records
must be protected from disclosure in order to maintain the integrity of
the investigative process and not provide to any individual an
opportunity to compromise that process, such as through the destruction
of evidence, interference with witnesses, or otherwise. In addition,
the Commission is exempting this system of records in order to keep
confidential the identity of sources who provided information to the
Commission during the course of the investigation under an express
promise that their identities would remain confidential. If an
individual can access the identities of confidential sources, those
sources may be unwilling to provide information that the Commission
needs for its law enforcement activities. Finally, to the extent
records in this system of records are compiled solely for the purpose
of determining the suitability, eligibility, or qualifications of an
individual who is being considered for employment with the Commission,
the Commission is exempting this system of records where the disclosure
of records would reveal the identity of somebody who provided
information in the context of the Commission's determination and who
had expressly requested that their identity remain confidential. The
Commission has determined that such an exemption is necessary in order
to obtain information relevant to its eligibility determinations.
Accordingly, the Commission is exempting CFTC-31, pursuant to sections
(k)(2) and (5) of the Privacy Act \18\ and subject to the requirements
and limitations set forth therein, from the following provisions of the
Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1) through (4); (e)(1); (e)(4)(G)
through (I); and (f).
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\18\ 5 U.S.C. 552a(k)(2) and (5), respectively.
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5. CFTC-32 Office of the Inspector General Investigative Files (CFTC-
32)
CFTC-32 contains records relevant to criminal and civil
investigations conducted by the Office of the Inspector General (OIG).
This system of records was previously included in the Commission
regulation Sec. 146.13 with exemptions promulgated pursuant to
sections (j)(2) and (k)(2) of the Privacy Act, the former for records
related to the OIG's criminal law enforcement activities and the latter
for investigatory records compiled for law enforcement purposes not
within the scope of section (j)(2). The Commission concluded that a
separate Privacy Act regulation Sec. 146.13 for exemptions taken for
this OIG system of records is not required by the Privacy Act or OMB
guidance. Accordingly, the Commission, after consultation with the OIG,
is removing current Commission regulation Sec. 146.13 and
incorporating the exemptions for CFTC-32 into Commission regulation
Sec. 146.12. Moreover, the Commission is setting forth the specific
reasons for which this system of records is being exempted from
particular provisions of the Privacy Act. To that end, the Commission
is exempting this system of records because the records must be
protected from disclosure in order to maintain the integrity of the
investigative process and not provide to any individual an opportunity
to access records and compromise that process, such as through the
destruction of evidence, interference with witnesses, or otherwise. In
addition, the Commission is exempting this system of records in order
to keep confidential the identity of sources who provided information
to the Commission during the course of the investigation under an
express promise that their identities would remain confidential. This
is consistent with the Inspector General Act of 1978, as amended, which
prohibits disclosing the identities of Federal employees who submit
complaints or other information related to investigations to the Office
of the Inspector General.\19\
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\19\ 5 U.S.C. 407(b).
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If an individual can access the identities of confidential sources,
those sources may be unwilling to provide information that the
Commission needs for its law enforcement activities, Federal employee
and contractor witnesses may risk retaliation in the Federal workplace,
and any witness may risk witness interference tactics including
threats, harassment, and physical and emotional harm. Specifically, the
Commission is exempting this system of records, pursuant to section
(j)(2) of the Privacy Act \20\ and subject to the requirements and
limitations set forth therein, from the following provisions of the
Privacy Act: 5 U.S.C. 552a(c)(3) and (4); (d)(1) through (4); (e)(1)
through (3), (e)(4)(G) through (I), (e)(5) and (8); (f); and (g). In
addition, the Commission is exempting this system of records, pursuant
to section (k)(2) of the Privacy Act \21\ and subject to the
requirements and limitations set forth therein, from the following
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1) through (4);
(e)(1); (e)(4)(G) through (I); and (f).
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\20\ 5 U.S.C. 552a(j)(2).
\21\ 5 U.S.C. 552a(k)(2).
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6. CFTC-44 Personnel Clearance System (CFTC-44)
CFTC-44 contains records related to the background investigations
and security clearances of individuals who have been or are being
considered for access to Commission facilities, information technology
systems, and classified or confidential information. These records may
include statements from individuals who have provided information in
the course of a background investigation and have requested that their
identity remain confidential, and records that constitute investigatory
materials compiled for law enforcement purposes. The Commission is
identifying this system of records by its proper title and number,
rather than as ``Exempted Employee Background Investigation Material''
as it was previously identified in the regulations, and setting forth
the specific reasons for which it is being exempted from particular
provisions of the Privacy Act pursuant to both section (k)(2) and (5)
of the Privacy Act.\22\ To that end, to the extent records in this
system of records are compiled solely for the purpose of determining an
individual's suitability, eligibility, or qualifications for employment
with the Commission, the Commission is explaining in
[[Page 51211]]
Commission regulation Sec. 146.12 that this system of records is
exempt where the disclosure of records would reveal the identity of
somebody who provided information in the context of the Commission's
determination and who had expressly requested that their identity
remain confidential in order to maintain the promised confidentiality
and enable the Commission to obtain information relevant to its
eligibility determinations. In addition, to the extent records in this
system of records pertain to law enforcement investigations, the
Commission is exempting this system of records because the records must
be protected from disclosure in order to maintain the integrity of the
investigative process and not provide to any individual the opportunity
to compromise that process, such as through the destruction of
evidence, interference with witnesses, or otherwise. The Commission
also is exempting this system of records in order to keep confidential
the identity of sources who provided information to the Commission
during the course of the investigation under an express promise that
their identities would remain confidential. If an individual can access
the identities of confidential sources, those sources may be unwilling
to provide information that the Commission needs for its law
enforcement activities. Specifically, the Commission is exempting this
system of records, pursuant to sections (k)(2) and (5) of the Privacy
Act \23\ and subject to the requirements and limitations set forth
therein, from the following provisions of the Privacy Act: 5 U.S.C.
552a(c)(3); (d)(1) through (4); (e)(1); (e)(4)(G) through (I); and (f).
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\22\ 5 U.S.C. 552a(k)(2) and (5).
\23\ 5 U.S.C. 552a(k)(2) and (5).
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7. CFTC-49 Whistleblower Records (CFTC-49)
CFTC-49 contains records related to whistleblower tips, complaints
and referrals, records related to investigations and inquiries into
whistleblower complaints, and records related to the whistleblower
award claim and determination process. The Commission is exempting this
system of records because the records are compiled for law enforcement
purposes and must be protected from disclosure in order to maintain the
integrity of the whistleblower process and not provide to any
individual an opportunity to access records and compromise an
investigation, such as through the destruction of evidence,
interference with witnesses, or otherwise. In addition, the Commission
is exempting this system of records in order to keep confidential the
identity of sources who provided information during the course of the
investigation under an express promise that their identities would
remain confidential. If an individual can access the identities of
confidential sources, those sources may be unwilling to provide
information that the Commission needs to investigate whistleblower
tips, complaints, and referrals. Specifically, the Commission is
exempting this system of records, pursuant to section (k)(2) of the
Privacy Act \24\ and subject to the requirements and limitations set
forth therein, from the following provisions of the Privacy Act: 5
U.S.C. 552a(c)(3); (d)(1) through (4); (e)(1); (e)(4)(G) through (I);
and (f).
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\24\ 5 U.S.C. 552a(k)(2).
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V. Related Matters
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires Federal agencies to
consider whether the rules they adopt will have a significant economic
impact on a substantial number of small entities and, if so, to provide
a regulatory flexibility analysis regarding the economic impact on
those entities.\25\ This final rule provides additional specificity
regarding the systems of records that the Commission is exempting from
the Privacy Act, sets forth the reasons for those exemptions, and
reorganizes the regulations for ease of reference. These changes
clarify the exemptions established under the Commission's regulations
and do not impose any additional burden on individuals who may seek
access to records under the Privacy Act.
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\25\ 5 U.S.C. 601 et seq.
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Moreover, the final rules will not impact small entities as defined
under the RFA. The modified regulations, issued under the Privacy Act,
exempt certain systems of records maintained by the Commission from
certain provisions of the Privacy Act, primarily those provisions
related to an individual's right to access and seek amendment of those
records. Individuals are defined in the Privacy Act as United States
citizens or aliens lawfully admitted to the United States for permanent
residence.\26\ Small entities, as defined in the RFA, are not
individuals under the Privacy Act and are not provided rights
thereunder; therefore, the final rules do not impact small entities as
defined under the RFA. Accordingly, the Chairman, on behalf of the
Commission, hereby certifies pursuant to 5 U.S.C. 605(b), that this
rule will not have a significant economic impact on a substantial
number of small entities.
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\26\ 5 U.S.C. 552a(a)(2).
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B. Paperwork Reduction Act
The Paperwork Reduction Act (PRA) imposes certain requirements on
Federal agencies in connection with their conducting or sponsoring any
collection of information.\27\ The Commission may not conduct or
sponsor, and a respondent is not required to respond to, a request for
collection of information unless the information collection request
displays a currently valid control number issued by OMB. This rule does
not contain a ``collection of information,'' as defined in the PRA.
Accordingly, the requirements imposed by the PRA are not applicable to
this rule.
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\27\ 5 U.S.C. 3501 et seq.
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C. Cost-Benefit Considerations
Section 15(a) of the CEA provides that, before promulgating a
regulation under the CEA or issuing an order, the Commission shall
consider the costs and benefits of the action of the Commission.\28\
Section 15(a) further specifies that the costs and benefits shall be
evaluated in light of five broad areas of market and public concern:
(1) protection of market participants and the public; (2) efficiency,
competitiveness, and financial integrity of the futures markets; (3)
price discovery; (4) sound risk management practices; and (5) other
public interest considerations.\29\ The modified rules are being
promulgated under the Privacy Act and pertain to the rights of
individuals with respect to records the Commission maintains about
them. The modified rules are not being promulgated under the CEA.
Therefore, the Commission finds that the considerations enumerated in
section 15(a)(2) of the CEA are not applicable here.
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\28\ 7 U.S.C. 19(a).
\29\ 7 U.S.C. 19(a)(2).
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D. Antitrust Considerations
Section 15(b) of the CEA requires the Commission to ``take into
consideration the public interest to be protected by the antitrust laws
and endeavor to take the least anticompetitive means of achieving the
purposes of this Act, in issuing any order or adopting any Commission
rule or regulation (including any exemption under section 4(c) or
4c(b)), or in requiring or approving any bylaw, rule, or regulation of
a contract market or registered futures association established
pursuant to section 17 of this Act.'' \30\
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\30\ 7 U.S.C. 19(b).
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[[Page 51212]]
The Commission believes that the public interest to be protected by
the antitrust laws is generally to protect competition. The Commission
requested comment on whether the proposed rule implicates any other
specific public interest to be protected by the antitrust laws; the
Commission received no comments in response to this request.
The Commission has considered the modified rule to determine
whether it is anticompetitive and has preliminarily identified no
anticompetitive effects. The Commission requested comment on whether
the proposed rule is anticompetitive and, if it is, what the
anticompetitive effects are; the Commission received no comments in
response to this request.
Because the Commission has determined that the modified rule is not
anticompetitive and has no anticompetitive effects, the Commission has
not identified any less anticompetitive means of achieving the purposes
of the Act. The Commission requested comment on whether there are less
anticompetitive means of achieving the relevant purposes of the Act
that would otherwise be served by adopting the proposed rule; the
Commission received no comments in response to this request.
List of Subjects in 17 CFR Part 146
Privacy.
For the reasons stated in the preamble, the Commodity Futures
Trading Commission amends 17 CFR part 146 as follows:
PART 146--RECORDS MAINTAINED ON INDIVIDUALS
0
1. The authority citation for part 146 continues to read as follows:
Authority: 88 Stat. 1896 (5 U.S.C. 552a), as amended; 88 Stat.
1389 (7 U.S.C. 4a(j)).
0
2. Revise Sec. 146.12 to read as follows:
Sec. 146.12 Exemptions.
The Commission is exempting from certain provisions of the Privacy
Act the systems of records set forth in this section. In addition, when
these systems of records and any other of the Commission's systems of
records maintain a record received from another system of records that
is exempted from one or more provisions of the Privacy Act, the
Commission will claim the same exemptions for that record that are
claimed for the system of records from which it originated.
(a) CFTC-1 Enforcement Matter Register and Matter Indices. The
system of records identified as CFTC-1 Enforcement Matter Register and
Matter Indices contains an index and registry of enforcement
investigations. Pursuant to 5 U.S.C. 552a(k)(2) and subject to the
requirements and limitations set forth therein, the Commission is
exempting this system of records from the following provisions of the
Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1) through (4); (e)(1); (e)(4)(G)
through (I); and (f), and from the following corresponding sections of
these rules: Sec. Sec. 146.3; 146.5; 146.6(d); 146.11(a)(7) through
(9); and 146.7(a). Exemptions from these particular sections of the
Privacy Act and CFTC's rules promulgated thereunder are justified for
the following reasons:
(1) From section (c)(3) (Accounting of Certain Disclosures),
because release of the accounting of certain disclosures could alert
the subject of an investigation to the existence and extent of that
investigation and reveal the investigative interests of the Commission
and the recipient entity. Release of such information to the subject of
an investigation could reasonably be anticipated to impede and
interfere with the Commission's efforts to identify and investigate
unlawful activities.
(2) From sections (d)(1) through (4) (Access and Amendment),
because individual access to these records could alert the subject of
an investigation to the existence and extent of that investigation and
reveal the investigative interests of the Commission and others.
Providing a subject with access to these records could impair the
effectiveness of the Commission's investigations and could
significantly impede the investigation by providing the opportunity for
the subject to destroy documentary evidence, improperly influence
witnesses and confidential sources, fabricate testimony, and engage in
other activities that could compromise the investigation. In addition,
providing an individual with access to these records may reveal the
identity of a source who furnished information under an express promise
that their identity would remain confidential. Allowing the subject of
the investigation to amend records in this system of records could
likewise interfere with ongoing law enforcement proceedings and impose
an impossible administrative burden by requiring law enforcement
investigations to be continuously reinvestigated.
(3) From section (e)(1) (Relevancy and Necessity of Information),
because in the course of investigations into potential violations of
law, the significance of certain information may not be clear or the
information may not be strictly relevant or necessary to a specific
investigation; but, effective law enforcement requires the retention of
all information that may aid in establishing patterns of unlawful
activity and providing investigative leads.
(4) From section (e)(4)(G) through (I) (Agency Requirements), and
(f) (Agency Rules), because the Commission is not required to establish
requirements, rules, or procedures related to access and amendment of
records in a system of records that is exempt from the individual
access and amendment provisions in section (d) of the Privacy Act.
(b) CFTC-10 Investigatory Records. The system of records identified
as CFTC-10 Investigatory Records contains records compiled for law
enforcement purposes, including records developed during an
investigation of violations or potential violations of the CEA.
Pursuant to 5 U.S.C. 552a(k)(2) and subject to the requirements and
limitations set forth therein, the Commission is exempting this system
of records from the following provisions of the Privacy Act: 5 U.S.C.
552a(c)(3); (d)(1) through (4); (e)(1); (e)(4)(G) through (I); and (f),
and from the following corresponding sections of these rules:
Sec. Sec. 146.3; 146.5; 146.6(d); 146.11(a)(7) through (9); and
146.7(a). Exemptions from these particular sections of the Privacy Act
and CFTC's rules promulgated thereunder are justified for the following
reasons:
(1) From section (c)(3) (Accounting of Certain Disclosures),
because release of the accounting of certain disclosures could alert
the subject of an investigation to the existence and extent of that
investigation and reveal the investigative interests of the Commission
and the recipient entity. Release of such information to the subject of
an investigation could reasonably be anticipated to impede and
interfere with the Commission's efforts to identify and investigate
unlawful activities.
(2) From sections (d)(1) through (4) (Access and Amendment),
because individual access to these records could alert the subject of
an investigation to the existence and extent of that investigation and
reveal the investigative interests of the Commission and others.
Providing a subject with access to these records could impair the
effectiveness of the Commission's investigations and could
significantly impede the investigation by providing the opportunity for
the subject to destroy documentary evidence, improperly influence
witnesses and confidential sources, fabricate testimony, and engage in
other activities that could compromise the
[[Page 51213]]
investigation. In addition, providing an individual with access to
these records may reveal the identity of a source who furnished
information under an express promise that their identity would remain
confidential. Allowing the subject of the investigation to amend
records in this system of records could likewise interfere with ongoing
law enforcement proceedings and impose an impossible administrative
burden by requiring law enforcement investigations to be continuously
reinvestigated.
(3) From section (e)(1) (Relevancy and Necessity of Information),
because in the course of investigations into potential violations of
law, the significance of certain information may not be clear or the
information may not be strictly relevant or necessary to a specific
investigation; but, effective law enforcement requires the retention of
all information that may aid in establishing patterns of unlawful
activity and providing investigative leads.
(4) From sections (e)(4)(G) through (I) (Agency Requirements), and
(f) (Agency Rules), because the Commission is not required to establish
requirements, rules, or procedures related to access and amendment of
records in a system of records that is exempt from the individual
access and amendment provisions in section (d) of the Privacy Act.
(c) CFTC-12 National Futures Association (NFA) Applications Suite
System. The system of records identified as CFTC-12 National Futures
Association (NFA) Applications Suite System contains records held by
NFA on behalf of the Commission, by delegated authority to support the
Commission's registration and other regulatory authority. These records
include records pertaining to the fitness of individuals to be
registered with the Commission and engage in business activities that
are subject to the Commission's jurisdiction and records pertaining to
disciplinary or other adverse action investigated or taken with respect
to individual registrants. Pursuant to 5 U.S.C. 552a(k)(2) and subject
to the requirements and limitations set forth therein, the Commission
is exempting this system of records from the following provisions of
the Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1) through (4); (e)(1);
(e)(4)(G) through (I); and (f), and from the following corresponding
sections of these rules: Sec. Sec. 146.3; 146.5; 146.6(d);
146.11(a)(7) through (9); and 146.7(a). Exemptions from these
particular sections of the Privacy Act are justified for the following
reasons:
(1) From section (c)(3) (Accounting of Certain Disclosures),
because release of accountings of certain disclosures could alert the
subject of an investigation to the existence and extent of that
investigation and reveal the investigative interests of the Commission
and the recipient entity. Release of such information to the subject of
an investigation could reasonably be anticipated to impede and
interfere with the Commission's efforts to identify and investigate
unlawful activities.
(2) From sections (d)(1) through (4) (Access and Amendment),
because individual access to these records could alert the subject of
an investigation to the existence and extent of that investigation and
reveal the investigative interests of the Commission and others.
Providing a subject with access to these records could impair the
effectiveness of the Commission's investigations and could
significantly impede the investigation by providing the opportunity for
the subject to destroy documentary evidence, improperly influence
witnesses and confidential sources, fabricate testimony, and engage in
other activities that could compromise the investigation. In addition,
providing an individual with access to these records may reveal the
identity of a source who furnished information under an express promise
that their identity would remain confidential. Allowing the subject of
the investigation to amend records in this system of records could
likewise interfere with ongoing law enforcement proceedings and impose
an impossible administrative burden by requiring law enforcement
investigations to be continuously reinvestigated.
(3) From section (e)(1) (Relevancy and Necessity of Information),
because in the course of investigations into potential violations of
law, the significance of certain information may not be clear or the
information may not be strictly relevant or necessary to a specific
investigation; but, effective law enforcement requires the retention of
all information that may aid in establishing patterns of unlawful
activity and providing investigative leads.
(4) From sections (e)(4)(G) through (I) (Agency Requirements), and
(f) (Agency Rules), because the Commission is not required to establish
requirements, rules, or procedures related to access and amendment of
records in a system of records that is exempt from the individual
access and amendment provisions in section (d) of the Privacy Act.
(d) CFTC-31 Closed Commission Meetings. The system of records
identified as CFTC-31 Closed Commission Meetings contains records about
individuals who are the subject of discussion at closed Commission
meetings, including those who are the subject of investigations or who
are being considered for employment. These records may include
statements from individuals who have provided information in the course
of an applicant's or employee's background investigation or other
Commission investigation and who have requested that their identities
remain confidential. Pursuant to 5 U.S.C. 552a(k)(2) and (5) and
subject to the requirements and limitations set forth therein, the
Commission is exempting this system of records from the following
provisions of the Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1) through (4);
(e)(1); (e)(4)(G) through (I); and (f), and from the following
corresponding sections of these rules: Sec. Sec. 146.3; 146.5;
146.6(d); 146.11(a)(7) through (9); and 146.7(a). Exemptions from these
particular sections of the Privacy Act are justified for the following
reasons:
(1) From section (c)(3) (Accounting of Certain Disclosures),
because release of the accounting of certain disclosures could alert
the subject of an investigation to the existence and extent of that
investigation and reveal the investigative interests of the Commission
and the recipient entity. Release of such information to the subject of
an investigation could reasonably be anticipated to impede and
interfere with the Commission's efforts to identify and investigate
unlawful activities.
(2) From sections (d)(1) through (4) (Access and Amendment),
because individual access to these records could alert the subject of
an investigation to the existence and extent of that investigation and
reveal the investigative interests of the Commission and others.
Providing a subject with access to these records could impair the
effectiveness of the Commission's investigations and could
significantly impede the investigation by providing the opportunity for
the subject to destroy documentary evidence, improperly influence
witnesses and confidential sources, fabricate testimony, and engage in
other activities that could compromise the investigation. In addition,
providing an individual with access to these records may reveal the
identity of a source who furnished information under an express promise
that their identity would remain confidential. Allowing the subject of
the investigation to amend
[[Page 51214]]
records in this system of records could likewise interfere with ongoing
law enforcement proceedings and impose an impossible administrative
burden by requiring law enforcement investigations to be continuously
reinvestigated.
(3) From section (e)(1) (Relevancy and Necessity of Information),
because in the course of investigations into potential violations of
law, the significance of certain information may not be clear or the
information may not be strictly relevant or necessary to a specific
investigation; but, effective law enforcement requires the retention of
all information that may aid in establishing patterns of unlawful
activity and providing investigative leads.
(4) From section (e)(4)(G) through (I) (Agency Requirements), and
(f) (Agency Rules), because the Commission is not required to establish
requirements, rules, or procedures related to access and amendment of
records in a system of records that is exempt from the individual
access and amendment provisions in section (d) of the Privacy Act.
(e) CFTC-32, Office of the Inspector General Investigative Files.
The system of records identified as CFTC-32 Office of the Inspector
General Investigative Files contains records relevant to criminal and
civil investigations conducted by the Office of the Inspector General,
including records about individuals being investigated for fraudulent
and abusive activities. Pursuant to 5 U.S.C. 552a(j)(2) and subject to
the requirements and limitations set forth therein, the Commission is
exempting this system of records from the following provisions of the
Privacy Act: 5 U.S.C. 552a(c)(3) and (4); (d)(1) through (4); (e)(1)
through (3), (e)(4)(G) through (I), and (e)(5) and (8); (f); and (g),
and from the following corresponding sections of these rules:
Sec. Sec. 146.3; 146.4; 146.5; 146.6(b), (d), and (e); 146.7(a), (c),
and (d); 146.8; 146.9; 146.10; and 146.11(a)(7) through (9). In
addition, pursuant to 5 U.S.C. 552a(k)(2) and subject to the
requirements and limitations set forth therein, the Commission is
exempting this system of records from the following provisions of the
Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1) through (4); (e)(1); (e)(4)(G)
through (I); and (f), and from the following corresponding sections of
these rules: Sec. Sec. 146.3; 146.5; 146.6(d); 146.11(a)(7) through
(9); and 146.7(a). Exemptions from these particular sections of the
Privacy Act are justified for the following reasons:
(1) From section (c)(3) (Accounting of Certain Disclosures),
because release of the accounting of certain disclosures could alert
the subject of an investigation to the existence and extent of that
investigation and reveal the investigative interests of the Commission
and the recipient entity. Release of such information to the subject of
an investigation could reasonably be anticipated to impede and
interfere with the Commission's efforts to identify and investigate
unlawful activities.
(2) From section (c)(4) (Notice of Correction), because this system
is exempt from the access and amendment provisions of section (d), as
noted below.
(3) From sections (d)(1) through (4) (Access and Amendment),
because individual access to these records could alert the subject of
an investigation to the existence and extent of that investigation and
reveal the investigative interests of the Commission and others.
Providing a subject with access to these records could impair the
effectiveness of the Commission's investigations and could
significantly impede the investigation by providing the opportunity for
the subject to destroy documentary evidence, improperly influence
witnesses and confidential sources, fabricate testimony, and engage in
other activities that could compromise the investigation. In addition,
providing an individual with access to these records may reveal the
identity of a source who furnished information under an express promise
that their identity would remain confidential. Allowing the subject of
the investigation to amend records in this system of records could
likewise interfere with ongoing law enforcement proceedings and impose
an impossible administrative burden by requiring law enforcement
investigations to be continuously reinvestigated.
(4) From section (e)(1) (Relevancy and Necessity of Information)
and (5) (Accuracy, Timeliness, Relevance, and Completeness), because in
the course of investigations into potential violations of law, the
significance of certain information may not be clear or the information
may not be strictly relevant or necessary to a specific investigation;
but, effective law enforcement requires the retention of all
information that may aid in establishing patterns of unlawful activity
and providing investigative leads. (5) From section (e)(2) (Collect
from Individual), because in a law enforcement investigation the
requirement that information be collected to the greatest extent
possible from the subject individual would present a serious impediment
to law enforcement, in that the subject of the investigation would be
informed of the existence of the investigation and would therefore be
able to avoid detection, apprehension, or legal obligations or duties.
(6) From section (e)(3) (Privacy Act Statement), because to comply
with the requirements of this section during the course of an
investigation could impede the information gathering process and hamper
the investigation.
(7) From sections (e)(4)(G) through (I) (Agency Requirements), and
(f) (Agency Rules), because the Commission is not required to establish
requirements, rules, or procedures related to access and amendment of
records in a system of records that is exempt from the individual
access and amendment provisions in section (d) of the Privacy Act.
(8) From section (e)(8) (Serve Notice), because the application of
this provision could prematurely reveal an ongoing criminal
investigation to the subject of the investigation, present a serious
impediment to law enforcement by interfering with the ability to issue
subpoenas or otherwise gather information, and reveal investigative
techniques, procedures, or evidence.
(9) From section (g) (Civil Remedies), because this system of
records is exempt from the individual access and amendment provisions
in section (d) of the Privacy Act for the reasons stated in paragraph
(e)(3) of this section; therefore, the Commission is not subject to
civil action for failure to adhere to those requirements.
(f) CFTC-44 Personnel Clearance System. The system of records
identified as CFTC-44 Personnel Clearance System contains records
related to the background investigations and security clearances of
individuals who have been or are being considered for access to
Commission facilities, information technology systems, and classified
or confidential information. These records may include statements from
individuals who have provided information in the course of a background
investigation and have requested that their identity remain
confidential. Pursuant to 5 U.S.C. 552a(k)(2) and (5) and subject to
the requirements and limitations set forth therein, the Commission is
exempting this system of records from the following provisions of the
Privacy Act: 5 U.S.C. 552a(c)(3); (d)(1) through (4); (e)(1); (e)(4)(G)
through (I); and (f), and from the following corresponding sections of
these rules: Sec. Sec. 146.3; 146.5; 146.6(d); 146.11(a)(7) through
(9); and 146.7(a). Exemptions from these particular sections of the
Privacy Act are justified for the following reasons:
[[Page 51215]]
(1) From sections (c)(3) (Accounting of Certain Disclosures),
because release of the accounting of certain disclosures could alert
the subject of an investigation to the extent of that investigation and
reveal investigative interests of the Commission and the recipient
entity that were previously unknown to the individual. Release of such
information to the subject of an investigation could reasonably be
anticipated to impede and interfere with the Commission's efforts to
adequately assess an individual when making a decision about the
individual's access to Commission facilities, information technology
systems, and classified and confidential information.
(2) From sections (d)(1) through (4) (Access and Amendment),
because the records contained in this system may be related to ongoing
investigations, and individual access to these records could alert the
subject of an investigation to the extent of that investigation and
reveal investigative interests of the Commission and others that were
previously unknown to the individual. Providing a subject with access
to these records could impair the effectiveness of the Commission's
investigations and could significantly impede the investigation by
providing the opportunity for the subject to destroy documentary
evidence, improperly influence witnesses and confidential sources,
fabricate testimony, and engage in other activities that could
compromise the investigation. In addition, providing an individual with
access to these records may reveal the identity of a source who
furnished information under an express promise that their identity
would remain confidential. Amendment of the records in this system of
records would interfere with ongoing law enforcement proceedings and
impose an impossible administrative burden by requiring law enforcement
investigations to be continuously reinvestigated.
(3) From section (e)(1) (Relevancy and Necessity of Information),
because in the course of conducting and adjudicating background
investigations, the significance of certain information may not be
clear or the information may not be strictly relevant or necessary to a
specific investigation; but, effective investigations require the
retention of all information that may aid in the investigation and
provide investigative leads.
(4) From sections (e)(4)(G) through (I) (Agency Requirements), and
(f) (Agency Rules), because the Commission is not required to establish
requirements, rules, or procedures related to access and amendment of
records in a system of records that is exempt from the individual
access and amendment provisions in section (d) of the Privacy Act.
(g) CFTC-49 Whistleblower Records. The system of records identified
as CFTC-49 Whistleblower Records contains records related to
whistleblower tips, complaints and referrals, records related to
investigations and inquiries into whistleblower complaints, and records
related to the whistleblower award claim and determination process.
Pursuant to 5 U.S.C. 552a(k)(2) and subject to the requirements and
limitations set forth therein, the Commission is exempting this system
of records from the following provisions of the Privacy Act: 5 U.S.C.
552a(c)(3); (d)(1) through (4); (e)(1); (e)(4)(G) through (I); and (f),
and from the following corresponding sections of these rules:
Sec. Sec. 146.3; 146.5; 146.6(d); 146.11(a) through (9); and 146.7(a).
Exemptions from these particular sections of the Privacy Act are
justified for the following reasons:
(1) From section (c)(3) (Accounting of Certain Disclosures),
because release of the accounting of certain disclosures could alert
the subject of an investigation to the existence and extent of that
investigation and reveal the investigative interests of the Commission
and the recipient entity. Release of such information to the subject of
an investigation could reasonably be anticipated to impede and
interfere with the Commission's efforts to identify and investigate
unlawful activities.
(2) From sections (d)(1) through (4) (Access and Amendment),
because individual access to these records could alert the subject of
an investigation to the existence and extent of that investigation and
reveal the investigative interests of the Commission and others.
Providing a subject with access to these records could impair the
effectiveness of the Commission's investigations and could
significantly impede the investigation by providing the opportunity for
the subject to destroy documentary evidence, improperly influence
witnesses and confidential sources, fabricate testimony, and engage in
other activities that could compromise the investigation. Allowing the
subject of the investigation to amend records in this system of records
could likewise interfere with ongoing law enforcement proceedings and
impose an impossible administrative burden by requiring law enforcement
investigations to be continuously reinvestigated.
(3) From section (e)(1) (Relevancy and Necessity of Information),
because in the course of investigations, the significance of certain
information may not be clear or the information may not be strictly
relevant or necessary to a specific investigation; but, effective
investigations require the retention of all information that may aid in
the investigation or aid in establishing patterns of activity and
provide investigative leads. (4) From sections (e)(4)(G) through (I)
(Agency Requirements) and (f) (Agency Rules), because the Commission is
not required to establish requirements, rules, or procedures related to
access and amendment of records in a system of records that is exempt
from the individual access and amendment provisions in section (d) of
the Privacy Act.
Sec. 146.13 [Removed]
0
3. Remove Sec. 146.13.
Issued in Washington, DC, on June 5, 2024, by the Commission.
Robert Sidman,
Deputy Secretary of the Commission.
Note: The following appendix will not appear in the Code of
Federal Regulations.
Appendix to Privacy Act Regulations--Voting Summary
Appendix 1--Voting Summary
On this matter, Chairman Behnam and Commissioners Johnson, and
Goldsmith Romero, Mersinger, and Pham voted in the affirmative. No
Commissioner voted in the negative.
[FR Doc. 2024-12685 Filed 6-14-24; 8:45 am]
BILLING CODE 6351-01-P