[Code of Federal Regulations]

[Title 45, Volume 1]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 45CFR5b.13]



[Page 41-44]

 

                        TITLE 45--PUBLIC WELFARE

 

                    SUBTITLE A--DEPARTMENT OF HEALTH

                           AND HUMAN SERVICES

 

PART 5b_PRIVACY ACT REGULATIONS--Table of Contents

 

Sec.  5b.13  Fees.



    (a) Policy. Where applicable, fees for copying records will be 

charged in accordance with the schedule set forth in this section. Fees 

may only be charged where an individual requests that a copy be made of 

the record to which he is granted access. No fee may be charged for 

making a search of the system of records whether the search is manual, 

mechanical, or electronic. Where a copy of the record must be made in 

order to provide access to the record (e.g., computer printout where no 

screen reading is available), the copy will be made available to the 

individual without cost. Where a medical record is made available to a 

representative designated by the individual or to a physician or health 

professional designated by a parent or guardian under Sec.  5b.6 of this 

part, no fee will be charged.



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    (b) Fee schedule. The fee schedule for the Department is as follows:

    (1) Copying of records susceptible to photocopying--$.10 per page.

    (2) Copying records not susceptible to photocopying (e.g., punch 

cards or magnetic tapes)--at actual cost to be determined on a case-by-

case basis.

    (3) No charge will be made if the total amount of copying does not 

exceed $25.



          Appendix A to Part 5b--Employee Standards of Conduct



    (a) General. All employees are required to be aware of their 

responsibilities under the Privacy Act of 1974, 5 U.S.C. 552a. 

Regulations implementing the Act are set forth in 45 CFR 5b. Instruction 

on the requirements of the Act and regulation shall be provided to all 

new employees of the Department. In addition, supervisors shall be 

responsible for assuring that employees who are working with systems of 

records or who undertake new duties which require the use of systems of 

records are informed of their responsibilities. Supervisors shall also 

be responsible for assuring that all employees who work with such 

systems of records are periodically reminded of the requirements of the 

Act and are advised of any new provisions or interpretations of the Act.

    (b) Penalties. (1) All employees must guard against improper 

disclosure f records which are governed by the Act. Because of the 

serious consequences of improper invasions of personal privacy, 

employees may be subject to disciplinary action and criminal prosecution 

for knowing and willful violations of the Act and regulation. In 

addition, employees may also be subject to disciplinary action for 

unknowing or unwillful violations, where the employee had notice of the 

provisions of the Act and regulations and failed to inform himself 

sufficiently or to conduct himself in accordance with the requirements 

to avoid violations.

    (2) The Department may be subjected to civil liability for the 

following actions undertaken by its employees:

    (a) Making a determination under the Act and Sec. Sec.  5b.7 and 

5b.8 of the regulation not to amend an individual's record in accordance 

with his request, or failing to make such review in conformity with 

those provisions;

    (b) Refusing to comply with an individual's request for notification 

of or access to a record pertaining to hiem;

    (c) Failing to maintain any record pertaining to any individual with 

such accuracy, relevance, timeliness, and completeness as is necessary 

to assure fairness in any determination relating to the qualifications, 

character, rights, or opportunities of, or benefits to the individual 

that may be made on the basis of such a record, and consequently a 

determination is made which is adverse to the individual; or

    (d) Failing to comply with any other provision of the Act or any 

rule promulgated thereunder, in such a way as to have an adverse effect 

on an individual.

    (3) An employee may be personally subject to criminal liability as 

set forth below and in 5 U.S.C. 552a (i):

    (a) Any officer or employee of an agency, who by virtue of his 

employment or official position, has possession of, or access to, agency 

records which contain individually identifiable information the 

disclosure of which is prohibited by the Act or by rules or regulations 

established thereunder, and who, knowing that disclosure of the specific 

material is so prohibited, willfully discloses the material in any 

manner to any person or agency not entitled to receive it, shall be 

guilty of a misdemeanor and fined not more than $5,000.

    (b) Any officer or employee of any agency who willfully maintains a 

system of records without meeting the notice requirements [of the Act] 

shall be guilty of a misdemeanor and fined not more than $5,000.

    (c) Rules Governing Employees Not Working With Systems of Records. 

Employees whose duties do not involve working with systems of records 

will not generally disclose to any one, without specific authorization 

from their supervisors, records pertaining to employees or other 

individuals which by reason of their official duties are available to 

them. Notwithstanding the above, the following records concerning 

Federal employees are a matter of public record and no further 

authorization is necessary for disclosure:

    (1) Name and title of individual.

    (2) Grade classification or equivalent and annual rate of salary.

    (3) Position description.

    (4) Location of duty station, including room number and telephone 

number.

    In addition, employees shall disclose records which are listed in 

the Department's Freedom of Information Regulation as being available to 

the public. Requests for other records will be referred to the 

responsible Department official. This does not preclude employees from 

discussing matters which are known to them personally, and without 

resort to a record, to official investigators of Federal agencies for 

official purposes such as suitability checks, Equal Employment 

Opportunity investigations, adverse action proceedings, grievance 

proceedings, etc.

    (d) Rules governing employees whose duties require use or reference 

to systems of records. Employees whose official duties require that they 

refer to, maintain, service, or otherwise deal with systems of records 

(hereinafter referred to as ``Systems Employees'') are governed by the 

general provisions. In addition, extra precautions are required and 

systems



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employees are held to higher standards of conduct.

    (1) Systems Employees shall:

    (a) Be informed with respect to their responsibilities under the 

Act;

    (b) Be alert to possible misuses of the system and report to their 

supervisors any potential or actual use of the system which they believe 

is not in compliance with the Act and regulation;

    (c) Make a disclosure of records within the Department only to an 

employee who has a legitimate need to know the record in the course of 

his official duties;

    (d) Maintain records as accurately as practicable.

    (e) Consult with a supervisor prior to taking any action where they 

are in doubt whether such action is in conformance with the Act and 

regulation.

    (2) Systems Employees shall not:

    (a) Disclose in any form records from a system of records except (1) 

with the consent or at the request of the subject individual; or (2) 

where its disclosure is permitted under Sec.  5b.9 of the regulation.

    (b) Permit unauthorized individuals to be present in controlled 

areas. Any unauthorized individuals observed in controlled areas shall 

be reported to a supervisor or to the guard force.

    (c) Knowingly or willfully take action which might subject the 

Department to civil liability.

    (d) Make any arrangements for the design development, or operation 

of any system of records without making reasonable effort to provide 

that the system can be maintained in accordance with the Act and 

regulation.

    (e) Contracting officers. In addition to any applicable provisions 

set forth above, those employees whose official duties involve entering 

into contracts on behalf of the Department shall also be governed by the 

following provisions:

    (1) Contracts for design, or development of systems and equipment. 

No contract for the design or development of a system of records, or for 

equipment to store, service or maintain a system of records shall be 

entered into unless the contracting officer has made reasonable effort 

to ensure that the product to be purchased is capable of being used 

without violation of the Act or regulation. Special attention shall be 

given to provision of physical safeguards.

    (2) Contracts for the operation of systems of records. A review by 

the Contracting Officer, in conjunction with other officials whom he 

feels appropriate, of all proposed contracts providing for the operation 

of systems of records shall be made prior to execution of the contracts 

to determine whether operation of the system of records is for the 

purpose of accomplishing a Department function. If a determination is 

made that the operation of the system is to accomplish a Department 

function, the contracting officer shall be responsible for including in 

the contract appropriate provisions to apply the provisions of the Act 

and regulation to the system, including prohibitions against improper 

release by the contractor, his employees, agents, or subcontractors.

    (3) Other service contracts. Contracting officers entering into 

general service contracts shall be responsible for determining the 

appropriateness of including provisions in the contract to prevent 

potential misuse (inadvertent or otherwise) by employees, agents, or 

subcontractors of the contractor.

    (f) Rules Governing Responsible Department Officials. In addition to 

the requirements for Systems Employees, responsible Department officials 

shall:

    (1) Respond to all requests for notification of or access, 

disclosure, or amendment of records in a timely fashion in accordance 

with the Act and regulation;

    (2) Make any amendment of records accurately and in a timely 

fashion;

    (3) Inform all persons whom the accounting records show have 

received copies of the record prior to the amendments of the correction; 

and

    (4) Associate any statement of disagreement with the disputed 

record, and

    (a) Transmit a copy of the statement to all persons whom the 

accounting records show have received a copy of the disputed record, and

    (b) Transmit that statement with any future disclosure.



 Appendix B to Part 5b--Routine Uses Applicable to More Than One System 

                      of Records Maintained by HHS



    (1) In the event that a system of records maintained by this agency 

or carry out its functions 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, the relevant records 

in the system of records may be referred, as a routine use, to the 

appropriate agency, whether federal, or foreign, charged with the 

responsibility of investigating or prosecuting such violation or charged 

with enforcing or implementing the statute, or rule, regulation or order 

issued pursuant thereto.

    (2) Referrals may be made of assignments of research investigators 

and project monitors to specific research projects to the Smithsonian 

Institution to contribute to the Smithsonian Science Information 

Exchange, Inc.

    (3) In the event the Department deems it desirable or necessary, in 

determining whether particular records are required to be disclosed 

under the Freedom of Information



[[Page 44]]



Act, disclosure may be made to the Department of Justice for the purpose 

of obtaining its advice.

    (4) A record from this system of records may be disclosed as a 

``routine use'' to a federal, state or local agency maintaining civil, 

criminal or other relevant enforcement records or other pertinent 

records, such as current licenses, if necessary to obtain a record 

relevant to an agency decision concerning the hiring or retention of an 

employee, the issuance of a security clearance, the letting of a 

contract, or the issuance of a license, grant or other benefit.

    A record from this system of records may be disclosed to a Federal 

agency, in response to its request, in connection with the hiring or 

retention of an employee, the issuance of a security clearance, the 

reporting of an investigation of an employee, the letting of a contract, 

or the issuance of a license, grant, or other benefit by the requesting 

agency, to the extent that the record is relevant and necessary to the 

requesting agency's decision on the matter.

    (5) In the event that a system of records maintained by this agency 

to carry out its function 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, the relevant records 

in the system of records may be referred, as a routine use, to the 

appropriate agency, whether state or local charged with the 

responsibility of investigating or prosecuting such violation or charged 

with enforcing or implementing the statute, or rule, regulation or order 

issued pursuant thereto.

    (6) Where Federal agencies having the power to subpoena other 

Federal agencies' records, such as the Internal Revenue Service or the 

Civil Rights Commission, issue a subpoena to the Department for records 

in this system of records, the Department will make such records 

available.

    (7) Where a contract between a component of the Department and a 

labor organization recognized under E.O. 11491 provides that the agency 

will disclose personal records relevant to the organization's mission, 

records in this system of records may be disclosed to such organization.

    (8) Where the appropriate official of the Department, pursuant to 

the Department's Freedom of Information Regulation determines that it is 

in the public interest to disclose a record which is otherwise exempt 

from mandatory disclosure, disclosure may be made from this system of 

records.

    (9) The Department contemplates that it will contract with a private 

firm for the purpose of collating, analyzing, aggregating or otherwise 

refining records in this system. Relevant records will be disclosed to 

such a contractor. The contractor shall be required to maintain Privacy 

Act safeguards with respect to such records.

    (10)-(99) [Reserved]

    (100) To the Department of Justice or other appropriate Federal 

agencies in defending claims against the United States when the claim is 

based upon an individual's mental or physical condition and is alleged 

to have arisen because of activities of the Public Health Service in 

connection with such individual.

    (101) To individuals and organizations, deemed qualified by the 

Secretary to carry out specific research solely for the purpose of 

carrying out such research.

    (102) To organizations deemed qualified by the Secretary to carry 

out quality assessment, medical audits or utilization review.

    (103) Disclosures in the course of employee discipline or competence 

determination proceedings.



       Appendix C to Part 5b--Delegations of Authority [Reserved]



                            PART 6 [RESERVED]