Privacy Act of 1974: System of Records

AGENCY:

Commodity Futures Trading Commission.

ACTION:

Notice of new system of records and proposed routine uses.

SUMMARY:

This notice adds a new system of records to the Commission's systems of records under the Privacy Act. The new system contains information collected to document and support decisions regarding clearance for access to classified information and the suitability, eligibility, and fitness for service of applicants for federal employment, including students, interns, or volunteers, and contractor positions to the extent that contract duties require access to federal facilities, information, systems, or applications. This system is necessary to comply with Homeland Security Presidential Directive 12 (HSPD-12).

DATES:

In accordance with subsections (e)(4) and (e)(11) of the Privacy Act of 1974, as amended (5 U.S.C. 552a), any interested person may submit written comments concerning this system of records. Comments on the establishment of the new system of records must be received no later than September 12, 2007. The new system of records will be effective September 24, 2007 unless the Commission receives comments which would result in a contrary determination.

ADDRESSES:

Comments should be addressed to Dave Stawick, Secretary, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st St. NW., Washington, DC 20581. Comments may be sent via electronic mail to secretary@cftc.gov.

FOR FURTHER INFORMATION CONTACT:

Stacy Yochum, Office of the Executive Director, (202) 418-5157, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street NW., Washington, DC 20581.

SUPPLEMENTARY INFORMATION:

In accordance with the Privacy Act of 1974, 5 U.S.C. 552a, and the Commission's implementing regulations, 17 CFR Part 146, the Commission is publishing a description of a new system of records. The new system contains records related to background checks at the Commission.

This new system of records, as required by 5 U.S.C. 552a(r) of the Privacy Act, will be submitted to the Committee on Government Oversight and Reform of the U.S. House of Representatives, the Committee on Governmental Affairs of the U.S. Senate, and the Office of Management and Budget, pursuant to Appendix I to OMB Circular A-130, “Federal Agency Responsibilities for Maintaining Records About Individuals,” dated July 15, 1994. Accordingly, the Commission is giving notice of the establishment of the following system of records:

CFTC-44

SYSTEM NAME:

Personnel Security Files.

SECURITY CLASSIFICATION:

Most personnel identity verification (PIV) records are not classified.

SYSTEM LOCATION:

The Personnel Security Files are located in the Office of Human Resources, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.

CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:

Individuals who require regular, ongoing access to CFTC facilities, information technology systems, or information classified in the interest of national security, including applicants for CFTC employment or contracts, CFTC employees, contractors of the CFTC, students, interns, volunteers, individuals authorized to perform or use services provided in CFTC facilities, and individuals formerly in any of these positions.

CATEGORIES OF RECORDS IN THE SYSTEM:

Records may include any or all of the following, depending on the individual and his or her position:

1. Data needed to identify an individual, including: Individual's last, first, middle names (filed alphabetically by last name), and former names (if applicable); Social Security Number; date of birth; birthplace; home address; telephone numbers; residential history; photograph; gender; height; weight; and hair and eye color.

2. Individual's citizenship; fingerprints; security classification; types and dates of investigations; agency conducting investigation; position sensitivity levels; miscellaneous investigation comments; summary report of investigation; results of suitability decisions; level of security clearance; and date of issuance of security clearance.

3. “I-9” documents, such as driver's license, passport, and birth certificate.

3. Names of relatives; relatives birth dates, home address, and citizenship; and names of relatives who work for the Federal government.

4. Reports about the individual's qualifications for a position, e.g., employee/applicant's employment/work history; employment references and contact information; educational/training institutions attended, degrees and certifications earned; and educational and training references.

5. Information needed to investigate an individual's character, conduct, and behavior in the community where he or she lives or lived; criminal history, e.g., arrests and convictions for violations against the law; mental health history; drug use; financial information, e.g., income tax return information and credit reports; reports of interviews with present and former supervisors, co-workers, associates, and educators; and other related personal references and contact information.

6. Reports of inquiries with law enforcement agencies, employers, and reports of action after the Office of Personnel Management or FBI section 8(d) Full Field Investigation; Notices of Security Investigation and other information developed from the above described Certificates of Clearance, e.g., date of security clearances, requests for appeals, witness statements, investigator's notes, security violations, circumstances of violations, and agency action(s) taken.

7. Information obtained from SF-85, SF-85P, SF-86, and SF-87 forms; summary reports from OPM or another Federal agency conducting background investigations; and results of adjudications and security violations. (Note: This system of records does not duplicate or supersede the Office of Personnel Management (OPM) Central-9 system of records, which covers the investigations OPM and its contractors conduct on behalf of other agencies.)

AUTHORITY FOR MAINTENANCE OF THE SYSTEM:

Depending on the purpose of the investigation, the U.S. government is authorized to ask for this information under Executive Orders 10450, 10865, 12333, and 12356; sections 3301 and 9101 of title 5, U.S. Code; sections 2165 and 2201 of title 42, U.S. Code; sections 781 to 887 of title 50, U.S. Code; parts 5, 732, and 736 of title 5, Code of Federal Regulations; and Homeland Security Presidential Directive 12 (HSPD-12), Policy for a Common Identification Standard for Federal Employees and Contractors, August 27, 2004.

PURPOSE:

The records in this system are used to document and support decisions regarding the suitability, eligibility, and fitness for service of applicants for Federal employment and contract positions, including students, interns, and volunteers to the extent their duties require access to Federal facilities, information, systems, or applications. The records are also used to support decisions regarding clearance for access to classified information. The records may be used to document security violations and supervisory actions taken.

ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM:

Information in this system may be routinely disclosed under the following conditions:

1. Litigation by the Department of Justice—when (a) CFTC or (b) any CFTC employee in his or her official capacity; (c) any CFTC employee in his or her individual capacity where CFTC or the Department of Justice (DOJ) has agreed to represent the employee; or (d) the United States Government, is a party to litigation or has an interest in such litigation, and by careful review, the CFTC determines that the records are both relevant and necessary to the litigation and the use of such records by DOJ is therefore deemed by the agency to be for a purpose compatible with the purpose for which the CFTC collected the records.

2. A Court or Adjudicative Body—in a proceeding when: (a) The CFTC; (b) any CFTC employee in his or her official capacity; (c) any CFTC employee in his or her individual capacity where CFTC or the Department of Justice has agreed to represent the employee; or (d) the United States Government, is a party to litigation or has an interest in such litigation, and by careful review, the CFTC determines that the records are both relevant and necessary to the litigation and the use of such records is therefore deemed by the agency to be for a purpose that is compatible with the purpose for which the CFTC collected the records.

3. Law Enforcement and Investigation—except as noted on Forms SF 85, 85-P, and 86, when a record on its face, or in conjunction with other records, indicates a violation or potential violation of law, whether civil, criminal, or regulatory in nature, and whether arising by general statute or particular program statute, or by regulation, rule, or order issued pursuant thereto, disclosure may be made to the appropriate public authority, whether Federal, foreign, State, local, or tribal, or otherwise, responsible for enforcing, investigating or prosecuting such violation or charged with enforcing or implementing the statute, or rule, regulation, or order issued pursuant thereto, if the information disclosed is relevant to any enforcement, regulatory, investigative or prosecutorial responsibility of the receiving entity.

4. Congressional Inquiries—when requested by a Congressional office in response to an inquiry by an individual made to the Congressional office concerning his or her own records.

5. Government-wide Program Management and Oversight—when requested by the National Archives and Records Administration or to the General Services Administration for records management inspections conducted under 44 U.S.C. 2904 and 2906; when the DOJ is contacted in order to obtain that department's advice regarding disclosure obligations under the Freedom of Information Act; or when the Office of Management and Budget is contacted in order to obtain that office's advice regarding obligations under the Privacy Act.

6. Contract Services or Cooperative Agreements—a record may be disclosed to CFTC contractors who have been engaged to assist the CFTC in the performance of a contract service or other activity related to this system of records and who need to have access to the records in order to perform their activity. Recipients shall be required to comply with the requirements of the Privacy Act of 1974, as amended, 5 U.S.C. 552a.

7. Employment, Clearances, Contract, or Other Benefits Decision by CFTC—disclosure may be made to any source or potential source from which information is requested in the course of an investigation concerning the retention of an employee or other personnel action (other than hiring), the retention of a security clearance, or the letting of a contract, to the extent necessary to identify the individual, inform the source of the nature and purpose of the investigation, and to identify the type of information requested.

8. Employment, Clearances, Contract, or Other Benefits Decision by an Organization other than CFTC—disclosure may be made to a Federal State, local, foreign, or tribal or other public authority of the fact that this system of records contains information relevant to the retention of an employee, the retention of a security clearance, or the letting of a contract. The other agency or licensing organization may then make a request supported by the written consent of the individual for the entire record if it so chooses. No disclosure will be made unless the information has been determined to be sufficiently reliable to support a referral to another office within the agency or to another Federal agency for criminal, civil, administrative, personnel, or regulatory action.

9. National Security and Intelligence Matters—these records may be disclosed to Federal, State, local agencies, or other appropriate entities or individuals, or through established liaison channels to selected foreign governments, in order to enable an intelligence agency to carry out its responsibilities under the National Security Act of 1947 as amended, the CIA Act of 1949 as amended, Executive Order 12333 or any successor order, applicable national security directives, or classified implementing procedures approved by the Attorney General and promulgated pursuant to such statutes, orders or directives.

POLICIES AND PRACTICES FOR STORING, RETRIEVING, SAFEGUARDING ACCESS, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM:

STORAGE:

Records are stored on paper and electronically in a secure location.

RETRIEVABILITY:

Background investigation files are retrieved by name, Social Security number (SSN), or fingerprint.

SAFEGUARDS:

Paper records: Paper records are kept in file folders in locked metal file cabinets in locked rooms at the headquarters office in the Office of Human Resources. Access to records is limited to approved security and administrative personnel who have a need for the information in the performance of their official duties.

Electronic records: Electronic records are kept in the Office of Human Resources. Access to the records is restricted to those with a specific role in the personal identity verification (PIV) process that requires access to background investigation forms to perform their duties, and who have been given a password to access that part of the system including background investigation records. An audit trail is maintained and reviewed periodically to identify unauthorized access. Persons given roles in the PIV process must complete training specific to their roles to ensure they are knowledgeable about how to protect individually identifiable information.

RETENTION AND DISPOSAL:

These records are retained and disposed of in accordance with General Records Schedule 18, item 22a, approved by the National Archives and Records Administration (NARA). Records are destroyed upon notification of death or not later than five years after separation or transfer of employee to another agency or department, whichever is applicable.

SYSTEM MANAGER(S) AND ADDRESS:

Vivian Jarcho, Office of Human Resources, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.

NOTIFICATION PROCEDURE:

An individual can determine if this system contains a record pertaining to him/her by sending a request in writing, signed, to the FOI Privacy and Sunshine Acts Compliance Staff, Commodity Futures Trading Commission, Three Lafayette Centre, 1155 21st Street, NW., Washington, DC 20581.

When requesting notification of or access to records covered by this Notice, an individual should provide his/her full name, date of birth, agency name, and work location. An individual requesting notification of records in person must provide identity documents sufficient to satisfy the custodian of the records that the requester is entitled to access, such as a government-issued photo ID. Individuals requesting notification via mail or telephone must furnish, at a minimum, name, date of birth, social security number, and home address in order to establish identity.

RECORDS ACCESS PROCEDURES:

Individuals wishing to request access to records about them should contact the system manager indicated above. Individuals must furnish their full name (first, middle, and last name) and birth date for their record to be located and identified. An individual requesting access must also follow CFTC Privacy Act requirements regarding verification of identity and amendment of records.

CONTESTING RECORD PROCEDURES:

Individuals wishing to request amendment of their records should contact the system manager indicated above. Individuals must furnish their full name (first, middle, and last name) and birth date for the record to be located and identified. An individual requesting amendment must also follow the CFTC Privacy Act requirements regarding verification of identity and amendment or records.

RECORD SOURCE CATEGORIES:

Information is obtained from a variety of sources including the employee, contractor, or applicant via use of the SF-85, SF-85P, or SF-86 and personal interviews; employers' and former employers' records; FBI criminal history records and other databases; financial institutions and credit reports; medical records and health care providers; educational institutions; interviews of witnesses such as neighbors, friends, co-workers, business associates, teachers, landlords, or family members; tax records; and other public records. Security violation information is obtained from a variety of sources, such as guard reports, security inspections, witnesses, supervisor's reports, audit reports.

SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS OF THE PRIVACY ACT:

Upon publication of a final rule in the Federal Register, this system of records will be exempt in accordance with 5 U.S.C. 552a(k)(5). Information will be withheld to the extent it identifies witnesses promised confidentiality as a condition of providing information during the course of the background investigation.