[Federal Register Volume 77, Number 52 (Friday, March 16, 2012)]
[Rules and Regulations]
[Pages 15588-15590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6168]
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DEPARTMENT OF DEFENSE
Office of the Secretary
[Docket ID DoD-2012-OS-0028]
32 CFR Part 311
Privacy Act of 1974; Implementation
AGENCY: Office of the Secretary, DoD.
ACTION: Direct final rule with request for comments.
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SUMMARY: The Office of the Secretary of Defense is exempting those
records contained in DMDC 13 DoD, entitled ``Defense Clearance and
Investigations Index (DCII),'' pertaining to investigatory material
compiled for law enforcement purposes to enable OSD components to
conduct certain investigations and relay law enforcement information
without compromise of the information, protect investigative techniques
and efforts employed, and identities of confidential sources who might
not otherwise come forward and who furnished information under an
express promise that the sources' identity would be held in confidence.
The exemption will allow DoD to provide protection against notification
of investigatory material including certain reciprocal investigations
and counterintelligence information, which might alert a subject to the
fact that an investigation of that individual is taking place, and the
disclosure of which would weaken the on-going investigation, reveal
investigatory techniques, and place confidential informants in jeopardy
who furnished information under an express promise that the sources'
identity would be held in confidence. Further, requiring OSD to grant
access to records and agency rules for access and amendment of records
would unfairly impede the investigation of allegations of unlawful
activities. To require OSD to confirm or deny the existence of a record
pertaining to a requesting individual may in itself provide an answer
to that individual relating to an on-going investigation. The
investigation of possible unlawful activities would be jeopardized by
agency rules requiring verification of record, disclosure of the record
to the subject, and record amendment procedures. This direct final rule
makes nonsubstantive changes to the Office of the Secretary Privacy
Program rules. These changes will allow the Department to add an
exemption rule to the Office of the Secretary of Defense Privacy
Program rules that will exempt applicable Department records and/or
material from certain portions of the Privacy Act. This change will
allow the Department to move part of the Department's personnel
security program records from the Defense Security Service Privacy
Program to the Office of the Secretary of Defense Privacy Program. This
will improve the efficiency and effectiveness of DoD's program by
preserving the exempt status of the applicable records and/or material
when the purposes underlying the exemption(s) are valid and necessary.
This rule is being published as a direct final rule as the Department
of Defense does not expect to receive any adverse comments, and so a
proposed rule is unnecessary.
DATES: The rule is effective on May 25, 2012 unless comments are
received that would result in a contrary determination. Comments will
be accepted on or before May 15, 2012. If DoD receives a significant
adverse comment, the Department will publish a withdrawal of this
direct final rule in the Federal Register.
ADDRESSES: You may submit comments, identified by docket number and
title, by any of the following methods:
[[Page 15589]]
Federal Rulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, Mark Center
Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Instructions: All submissions received must include the agency name
and docket number for this Federal Register document. The general
policy for comments and other submissions from members of the public is
to make these submissions available for public viewing on the Internet
at http://www.regulations.gov as they are received without change,
including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Ms. Cindy Allard at (703) 588-6830.
SUPPLEMENTARY INFORMATION: This direct final rule is consistent with
the rule previously published at 32 CFR part 321.13(h) and another rule
is being published to remove and reserve 321.13(h).
Direct Final Rule and Significant Adverse Comments
DoD has determined this rulemaking meets the criteria for a direct
final rule because it involves nonsubstantive changes dealing with
DoD's management of its Privacy Programs. DoD expects no opposition to
the changes and no significant adverse comments. However, if DoD
receives a significant adverse comment, the Department will publish a
withdrawal of this direct final rule in the Federal Register. A
significant adverse comment is one that explains: (1) Why the direct
final rule is inappropriate, including challenges to the rule's
underlying premise or approach; or (2) why the direct final rule will
be ineffective or unacceptable without a change. In determining whether
a comment necessitates withdrawal of this direct final rule, DoD will
consider whether it warrants a substantive response in a notice and
comment process.
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
It has been determined that Privacy Act rules for the Department of
Defense are not significant rules. The rules do not (1) Have an annual
effect on the economy of $100 million or more or adversely affect in a
material way the economy; a sector of the economy; productivity;
competition; jobs; the environment; public health or safety; or State,
local, or tribal governments or communities; (2) Create a serious
inconsistency or otherwise interfere with an action taken or planned by
another Agency; (3) Materially alter the budgetary impact of
entitlements, grants, user fees, or loan programs, or the rights and
obligations of recipients thereof; or (4) Raise novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in these Executive orders.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)
It has been determined that this Privacy Act rule for the
Department of Defense does not have significant economic impact on a
substantial number of small entities because it is concerned only with
the administration of Privacy Act systems of records within the
Department of Defense.
Public Law 95-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined that Privacy Act rules for the Department of
Defense impose no additional information collection requirements on the
public under the Paperwork Reduction Act of 1995.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been determined that this Privacy Act rulemaking for the
Department of Defense does not involve a Federal mandate that may
result in the expenditure by State, local and tribal governments, in
the aggregate, or by the private sector, of $100 million or more and
that such rulemaking will not significantly or uniquely affect small
governments.
Executive Order 13132, ``Federalism''
It has been determined that the Privacy Act rules for the
Department of Defense do not have federalism implications. The rule
does not have substantial direct effects on the States, on the
relationship between the National Government and the States, or on the
distribution of power and responsibilities among the various levels of
government.
List of Subjects in 32 CFR Part 311
Privacy.
Accordingly, 32 CFR part 311 is amended as follows:
PART 311--OFFICE OF THE SECRETARY OF DEFENSE AND JOINT STAFF
PRIVACY PROGRAM
0
1. The authority citation for 32 CFR part 311 continues to read as
follows:
Authority: Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 522a).
0
2. Section 311.8 is amended by revising paragraph (c)(20) to read as
follows:
Sec. 311.8 Procedures for exemptions.
* * * * *
(c) * * *
(20) System identifier and name: DMDC 13 DoD, Defense Clearance and
Investigations Index.
(i) Exemptions: Investigatory material compiled for law enforcement
purposes may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if an
individual is denied any right, privilege, or benefit for which he
would otherwise be entitled by Federal law or for which he would
otherwise be eligible, as a result of the maintenance of such
information, the individual will be provided access to such information
except to the extent that disclosure would reveal the identity of a
confidential source. Any portion of this system that falls under the
provisions of 5 U.S.C. 552a(k)(2) may be exempt from the following
subjections of 5 U.S.C. 552a(c)(3); (d); (e)(1); (e)(4)(G), (H), and
(I) and (f).
(ii) Authority: 5 U.S.C. 552a(k)(2).
(iii) Reasons: (A) From subsection (c)(3) because it will enable
OSD components to conduct certain investigations and relay law
enforcement information without compromise of the information,
protection of investigative techniques and efforts employed, and
identities of confidential sources who might not otherwise come forward
and who furnished information under an express promise that the
sources' identity would be held in confidence (or prior to the
effective date of the Act, under an implied promise).
(B) From subsections (e)(1), (e)(4)(G), (H), and (I) because it
will provide protection against notification of investigatory material
including certain reciprocal investigations and counterintelligence
information, which might alert a subject to the fact that an
investigation of that individual is taking place, and the disclosure of
which would weaken the on-going investigation, reveal investigatory
techniques, and place confidential informants in jeopardy who furnished
information under an express promise that the sources' identity would
be held in confidence (or prior to the effective date of the Act, under
an implied promise).
(C) From subsections (d) and (f) because requiring OSD to grant
access to records and agency rules for access and amendment of records
would unfairly impede the investigation of allegations
[[Page 15590]]
of unlawful activities. To require OSD to confirm or deny the existence
of a record pertaining to a requesting individual may in itself provide
an answer to that individual relating to an on-going investigation. The
investigation of possible unlawful activities would be jeopardized by
agency rules requiring verification of record, disclosure of the record
to the subject, and record amendment procedures.
* * * * *
Dated: February 28, 2012.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2012-6168 Filed 3-15-12; 8:45 am]
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