2024-01684
[Federal Register Volume 89, Number 23 (Friday, February 2, 2024)]
[Proposed Rules]
[Pages 7307-7315]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01684]
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COMMODITY FUTURES TRADING COMMISSION
17 CFR Part 146
RIN 3038-AF22
Privacy Act Regulations
AGENCY: Commodity Futures Trading Commission.
ACTION: Notice of proposed rulemaking.
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SUMMARY: The Commodity Futures Trading Commission (CFTC or Commission)
proposes to update its regulations regarding exemptions for certain
systems of records from one or more provisions of the Privacy Act of
1974 (Privacy Act). The Commission proposes to revise these regulations
to specifically identify the systems of records currently included in
the regulation that the Commission is exempting, additional systems of
records that the Commission intends to exempt, and the sections of the
Privacy Act from which the Commission is exempting each system of
records, and the reasons therefor, 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 Commission also proposes to reorganize the
regulations for ease of reference.
[[Page 7308]]
DATES: Please submit comments on or before March 4, 2024.
ADDRESSES: You may submit comments identified as pertaining to
``Privacy Act Regulations'' by any of the following methods:
CFTC Comments Portal: https://comments.cftc.gov. Select
the ``Submit Comments'' link for this rulemaking and follow the
instructions on the Public Comment Form.
Mail: Send to Christopher Kirkpatrick, Secretary of the
Commission, Commodity Futures Trading Commission, Three Lafayette
Centre, 1155 21st Street NW, Washington, DC 20581.
Hand Delivery/Courier: Follow the same instructions as for
Mail, above.
Please submit your comments using only one of these methods. To
avoid possible delays with mail or in-person deliveries, submissions
through the CFTC Comments Portal are encouraged.
All comments must be submitted in English, or if not, accompanied
by an English translation. Comments will be posted as received to
www.cftc.gov. You should submit only information that you wish to make
available publicly. If you wish the Commission to consider information
that may be exempt from disclosure under the Freedom of Information Act
(FOIA), 5 U.S.C. 552, a petition for confidential treatment of the
exempt information may be submitted according to the procedures
established in the Commission's regulations at 17 CFR 145.9.
The Commission reserves the right, but shall have no obligation, to
review, pre-screen, filter, redact, refuse, or remove any or all of a
submission from www.cftc.gov that it may deem to be inappropriate for
publication, such as obscene language. All submissions that have been
redacted or removed that contain comments on the merits of the notice
will be retained in the comment file and will be considered as required
under the Administrative Procedure Act (APA), and may be accessible
under FOIA.
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 of 1974 \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\
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\3\ 5 U.S.C. 552a(b).
\4\ 5 U.S.C. 552a(d).
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B. Privacy Act Exemptions
The Privacy Act 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, however, the agency must
engage in a rulemaking process pursuant to the APA \6\ and make clear
to the public why particular exemptions are being invoked.\7\
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\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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Part 146 of the Commission's regulations,\8\ entitled ``Records
Maintained on Individuals,'' contains the rules of the Commission
implementing the Privacy Act. Commission regulations Sec. Sec. 146.12
and 146.13 (together, Privacy Act regulations) currently 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 has 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 has
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 subsections (j) and
(k) of the Privacy Act \9\ and the corresponding guidance in OMB
Circular A-108.\10\ 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.\11\ Accordingly, the Commission proposes to replace
current Sec. 146.12 of the Commission's regulations with a more
detailed provision that would more specifically identify all of the
systems of records it proposes to exempt, the specific provisions of
the Privacy Act from which each system of records is being exempted,
and the reasons why the Commission is adopting those exemptions.
Moreover, the Commission has preliminarily concluded that a separate
Privacy Act regulation Sec. 146.13 for exemptions taken for an Office
of the Inspector General (OIG) system of records is not required by the
Privacy Act or OMB guidance. Accordingly, the Commission proposes to
remove current Commission regulation Sec. 146.13 and add the OIG
exemptions to proposed Commission regulation Sec. 146.12, with
revisions to the content as explained below.
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\8\ 17 CFR 146.
\9\ 5 U.S.C. 552a(j) and (k).
\10\ 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.
\11\ OMB A-108 at page 25.
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C. Specific Exempted Systems of Records
1. CFTC-1 Enforcement Matter Register and Matter Indices (CFTC-1)
CFTC-1 contains an index and registry of enforcement
investigations. This system of records is not currently identified in
Commission regulation Sec. 146.12 as a system of records that the
Commission has exempted. The Commission is proposing to exempt this
system of records because the records
[[Page 7309]]
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 proposing to exempt 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 proposing to exempt CFTC-1, pursuant to subsection (k)(2) of the
Privacy Act \12\ 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), (2), (3), and (4); (e)(1); (e)(4)(G), (H),
and (I); and (f).
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\12\ 5 U.S.C. 552a(k)(2).
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Request for Comment
The Commission requests comment on the justification for and scope
of the proposed CFTC-1 exemptions.
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.\13\ This system of
records is included in the current Commission regulation Sec. 146.12
but is identified as ``Exempted Investigatory Records'' and the
exemptions identified in the current regulation lack the specificity
that the Commission is proposing to include in new regulation Sec.
146.12. The Commission is proposing to identify this system of records
by its proper title and number and set forth the specific reasons for
which it is being exempted from particular provisions of the Privacy
Act. To that end, the Commission is proposing to explain in revised
Commission regulation Sec. 146.12 that this system of records is being
exempted 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 proposing to
exempt 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 proposing to exempt CFTC-
10, pursuant to subsection (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),
(2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); and (f).
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\13\ 7 U.S.C. 1 et seq.
\14\ 5 U.S.C. 552a(k)(2).
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Request for Comment
The Commission requests comment on the justification for and scope
of the CFTC-10 exemptions.
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.
This system of records is not currently identified in Commission
regulation Sec. 146.12 as a system of records that the Commission has
exempted. The Commission is proposing to exempt 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 proposing to exempt 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 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 proposing to exempt CFTC-
12, pursuant to subsection (k)(2) of the Privacy Act \15\ 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),
(2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); and (f).
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\15\ 5 U.S.C. 552a(k)(2).
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Request for Comment
The Commission requests comment on the justification for and scope
of the CFTC-12 exemptions.
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.
This system of records is included in the current Commission regulation
Sec. 146.12 but identified as ``Exempted Closed Commission Meetings''
and the exemptions identified in the current regulation lack the
specificity that the Commission is proposing to include in new
regulation Sec. 146.12. The Commission is proposing to identify this
system of records by its proper title and number and to set 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 proposing to exempt this system of records because
the records must be protected from disclosure in order to maintain the
integrity of the investigative process and not to 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 proposing to exempt 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
[[Page 7310]]
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 proposing to exempt 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 preliminarily determined that
such an exemption is necessary in order to obtain information relevant
to its eligibility determinations. Accordingly, the Commission is
proposing to exempt CFTC-31, pursuant to subsections (k)(2) and (k)(5)
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), (2), (3), and (4); (e)(1); (e)(4)(G), (H),
and (I); and (f).
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\16\ 5 U.S.C. 552a(k)(2) and (k)(5), respectively.
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Request for Comment
The Commission requests comment on the justification for and scope
of the CFTC-31 exemptions.
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 is included in the current Commission regulation
Sec. 146.13 with exemptions promulgated pursuant to subsections (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 subsection (j)(2). The Commission has preliminarily
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, proposes to remove current Commission
regulation Sec. 146.13 and incorporate the exemptions for CFTC-32 into
proposed Commission regulation Sec. 146.12. Moreover, the Commission
is proposing to set 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 proposing to explain in revised
Commission regulation Sec. 146.12 that this system of records is being
exempted 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 proposing to
exempt 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, 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 proposing to exempt
this system of records, pursuant to subsection (j)(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) and (4); (d)(1), (2), (3), and (4); (e)(1), (2), (3),
(4)(G)-(I), (5), and (8); (f); and (g). In addition, the Commission is
proposing to exempt this system of records, pursuant to subsection
(k)(2) 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), (2), (3), and (4); (e)(1);
(e)(4)(G), (H), and (I); and (f).
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\17\ 5 U.S.C. 552a(j)(2).
\18\ 5 U.S.C. 552a(k)(2).
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Request for Comment
The Commission requests comment on the justification for and scope
of the CFTC-32 exemptions. The Commission also requests comment on
whether the CFTC-32 exemptions should be included in proposed
Commission regulation Sec. 146.12 or remain in separate Commission
regulation Sec. 146.13.
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. This system of records
is identified in current regulation Sec. 146.12 by its predecessor
name, ``Exempted Employee Background Investigation Material,'' and the
current regulation exempts the system of records only pursuant to
subsection (k)(5) of the Privacy Act. The Commission is proposing to
identify this system of records by its proper title and number and to
set forth the specific reasons for which it is being exempted from
particular provisions of the Privacy Act pursuant to both subsection
(k)(2) and (k)(5) of the Privacy Act.\19\ 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
proposing to explain in the revised 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 proposing to exempt 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 is also proposing to exempt 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 proposing to exempt this
[[Page 7311]]
system of records, pursuant to subsections (k)(2) and (k)(5) 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); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H),
and (I); and (f).
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\19\ 5 U.S.C. 552a(k)(2) and (k)(5).
\20\ 5 U.S.C. 552a(k)(2) and (k)(5).
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Request for Comment
The Commission requests comment on the justification for and scope
of the CFTC-44 exemptions.
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. This system of records is not
currently identified in Commission regulation Sec. 146.12 as a system
of records that the Commission has exempted. The Commission is
proposing to exempt 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 proposing to exempt 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 proposes to exempt this system of records,
pursuant to subsection (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), (2), (3),
and (4); (e)(1); (e)(4)(G), (H), and (I); and (f).
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\21\ 5 U.S.C. 552a(k)(2).
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Request for Comment
The Commission requests comment on the justification for and scope
of the CFTC-49 exemptions.
II. Related Matters
A. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA) requires federal agencies to
consider whether the rules they propose 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.\22\
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\22\ 5 U.S.C. 601 et seq.
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The proposed 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.\23\ Small entities, as defined in the RFA, are not
individuals under the Privacy Act and are not provided rights
thereunder; therefore, small entities are outside the scope of the
proposed regulations. Accordingly, the Chairman, on behalf of the
Commission, hereby certifies pursuant to 5 U.S.C. 605(b), that this
proposed rule will not have a significant economic impact on a
substantial number of small entities.
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\23\ 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.\24\ 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 proposed
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 proposed rule.
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\24\ 5 U.S.C. 3501 et seq.
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C. Cost-Benefit Considerations
Section 15(a) of the Commodity Exchange Act (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.\25\ 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.\26\ The proposed 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 proposed rules are not being promulgated under the CEA.
Therefore, the Commission preliminarily finds that the considerations
enumerated in section 15(a)(2) of the CEA are not applicable here.
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\25\ 7 U.S.C. 19(a).
\26\ 7 U.S.C. 19(a)(2).
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Request for Comment
The Commission requests comment on whether its preliminary finding
is correct.
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 the CEA, 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 the CEA.\27\ The Commission believes that the
public interest to be protected by the antitrust laws is generally to
protect competition. The Commission has considered the proposed rule to
determine whether it is anticompetitive and has preliminarily
identified no anticompetitive effects.
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\27\ 7 U.S.C. 19(b).
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Because the Commission has preliminarily determined that the
proposed 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.
Request for Comment
The Commission requests comment on whether the proposed rule is
anticompetitive and, if it is, what the anticompetitive effects are and
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 also requests comment on whether the
proposed rule implicates any other specific public interest to be
protected by the antitrust laws.
[[Page 7312]]
List of Subjects in 17 CFR Part 146
Privacy.
For the reasons stated in the preamble, the Commodity Futures
Trading Commission proposes to amend 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), (2), (3), and (4); (e)(1);
(e)(4)(G), (H), and (I); and (f), and from the following corresponding
sections of this part: 146.3; 146.5; 146.6(d); 146.11(a)(7), (8), and
(9); and 146.7(a). Exemptions from these particular subsections of the
Privacy Act and sections of this part promulgated thereunder are
justified for the following reasons:
(1) From subsection (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 subsection (d)(1), (2), (3), and (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 subsection (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 subsection (e)(4)(G), (H), and(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 subsection (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 Commodity
Exchange Act. 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), (2), (3), and (4); (e)(1);
(e)(4)(G), (H), and (I); and (f), and from the following corresponding
sections of this part: 146.3; 146.5; 146.6(d); 146.11(a)(7), (8), and
(9); and 146.7(a). Exemptions from these particular subsections of the
Privacy Act and sections of this part promulgated thereunder are
justified for the following reasons:
(1) From subsection (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 subsection (d)(1), (2), (3), and (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 subsection (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 subsection (e)(4)(G), (H), and(I) (Agency Requirements)
and (f) (Agency Rules), because the Commission is not required to
establish
[[Page 7313]]
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 subsection (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), (2), (3), and (4);
(e)(1); (e)(4)(G), (H), and (I); and (f), and from the following
corresponding sections of this part: 146.3; 146.5; 146.6(d);
146,11(a)(7), (8), and (9); and 146.7(a). Exemptions from these
particular subsections of the Privacy Act are justified for the
following reasons:
(1) From subsection (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 subsection (d)(1), (2), (3), and (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 subsection (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 subsection (e)(4)(G), (H), and (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 subsection (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 (k)(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), (2), (3),
and (4); (e)(1); (e)(4)(G), (H), and (I); and (f), and from the
following corresponding sections of this part: 146.3; 146.5; 146.6(d);
146.11(a)(7), (8), and (9); and Sec. 146.7(a). Exemptions from these
particular subsections of the Privacy Act are justified for the
following reasons:
(1) From subsection (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 subsection (d)(1), (2), (3), and (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 subsection (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 subsection (e)(4)(G), (H), and (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 subsection (d) of the
Privacy Act.
(e) CFTC-32, Office of the Inspector General Investigative Files.
The system
[[Page 7314]]
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), (2), (3), and (4);
(e)(1), (2), (3), (4)(G)-(I), (5), and (8); (f); and (g), and from the
following corresponding sections of this part: 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), (8), and (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),
(2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); and (f), and from
the following corresponding sections of this part: 146.3; 146.5;
146.6(d); 146.11(a)(7), (8), and (9); and 146.7(a). Exemptions from
these particular subsections of the Privacy Act are justified for the
following reasons:
(1) From subsection (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 subsection (c)(4) (Notice of Correction), because this
system is exempt from the access and amendment provisions of subsection
(d), as noted in paragraph (e)(3) of this section.
(3) From subsection (d)(1), (2), (3), and (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 subsection (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 subsection (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 subsection (e)(3) (Privacy Act Statement), because to
comply with the requirements of this subsection during the course of an
investigation could impede the information gathering process and hamper
the investigation.
(7) From subsection (e)(4)(G), (H), and (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 subsection (d) of the
Privacy Act.
(8) From subsection (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 subsection (g) (Civil Remedies), because this system of
records is exempt from the individual access and amendment provisions
in subsection (d) of the Privacy Act for the reasons noted 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 (k)(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), (2), (3), and (4); (e)(1);
(e)(4)(G), (H), and (I); and (f), and from the following corresponding
sections of this part: 146.3; 146.5; 146.6(d); 146.11(a)(7), (8), and
(9); and 146.7(a). Exemptions from these particular subsections of the
Privacy Act are justified for the following reasons:
(1) From subsections (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 subsection (d)(1), (2), (3), and (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
[[Page 7315]]
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 subsection (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 subsection (e)(4)(G), (H), and (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 subsection (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), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I);
and (f), and from the following corresponding sections of this part:
146.3; 146.5; 146.6(d); 146.11(a)(7), (8), and (9); and 146.7(a).
Exemptions from these particular subsections of the Privacy Act are
justified for the following reasons:
(1) From subsection (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 subsection (d)(1), (2), (3), and (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 subsection (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 subsection (e)(4)(G), (H), and (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 subsection (d) of the
Privacy Act.
Sec. 146.13 [Removed]
0
3. Remove Sec. 146.13.
Issued in Washington, DC, on January 24, 2024, by the
Commission.
Christopher Kirkpatrick,
Secretary of the Commission.
Note: The following appendix will not appear in the Code of
Federal Regulations.
Appendix to Privacy Act Regulations--Commission Voting Summary
On this matter, Chairman Behnam and Commissioners Johnson,
Goldsmith Romero, Mersinger, and Pham voted in the affirmative. No
Commissioner voted in the negative.
[FR Doc. 2024-01684 Filed 2-1-24; 8:45 am]
BILLING CODE 6351-01-P