[Federal Register Volume 77, Number 52 (Friday, March 16, 2012)]
[Rules and Regulations]
[Pages 15595-15596]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-6170]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID DoD-2012-OS-0031]

32 CFR Part 322


Privacy Act; Implementation

AGENCY: National Security Agency/Central Security Service, DoD.

ACTION: Direct final rule with request for comments.

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SUMMARY: The National Security Agency/Central Security Service (NSA/
CSS) is adding a new exemption rule for GNSA 29 to exempt those records 
that are presently exempt from certain requirements of the Privacy Act. 
This direct final rule makes nonsubstantive changes to the National 
Security Agency/Central Security Service Privacy Program rules. These 
changes will allow the Department to exempt records from certain 
portions of the Privacy Act. This will improve the efficiency and 
effectiveness of DoD's program by preserving the exempt status of the 
records when the purposes underlying the exemption are valid and 
necessary to protect the contents of the records.
    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:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 4800 Mark 
Center Drive, 2nd Floor, East Tower, Suite 02G09, Alexandria, VA 22350-
3100.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) 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. Anne Hill at (301) 688-6527.

SUPPLEMENTARY INFORMATION:

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 Progams. 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

[[Page 15596]]

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 Privacy Act rules for the Department of 
Defense do not have significant economic impact on a substantial number 
of small entities because they are concerned only with the 
administration of Privacy Act systems of records within the Department 
of Defense.

Public Law 96-511, ``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 the 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 rules do 
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 322

    Privacy.

    Accordingly, 32 CFR part 322 is amended as follows:

PART 322--NATIONAL SECURITY AGENCY/CENTRAL SECURITY SERVICE PROGRAM

0
1. The authority citation for 32 CFR part 322 continues to read as 
follows:

    Authority: Privacy Act of 1974, Pub. L. 93-579, Stat. 1896 (5 
U.S.C. 552a).


0
2. Section 322.7 is amended by adding paragraph (l) to read as follows:


Sec.  322.7  Exempt systems of records.

* * * * *
    (l) ID: GNSA 29 (General Exemption)
    (2) System name: NSA/CSS Office of Inspector General Investigations 
and Complaints.
    (3) Exemption: Investigatory material compiled for law enforcement 
purposes, other than material within the scope of subsection 5 U.S.C. 
552a(j)(2), may be exempt pursuant to 5 U.S.C. 552a(k)(2). However, if 
any 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 the 
information, the individual will be provided access to the information 
except to the extent that disclosure would reveal the identity of a 
confidential source. Note: When claimed, this exemption allows limited 
protection of investigative reports maintained in a system of records 
used in personnel or administrative actions.
    Investigatory material compiled solely for the purpose of 
determining suitability, eligibility, or qualifications for Federal 
civilian employment, military service, federal contracts, or access to 
classified information may be exempt pursuant to 5 U.S.C. 552a(k)(5), 
but only to the extent that such material would reveal the identity of 
a confidential source.
    (4) Authority: 5 U.S.C. 552a(k)(2) through (k)(5).
    (5) Reasons: (i) From subsection (c)(3) and (d) when access to 
accounting disclosures and access to or amendment of records would 
cause the identity of a confidential source to be revealed. Disclosure 
of the source's identity not only will result in the Department 
breaching the promise of confidentiality made to the source but it will 
impair the Department's future ability to compile investigatory 
material for the purpose of determining suitability, eligibility, or 
qualifications for Federal civilian employment, Federal contracts, or 
access to classified information. Unless sources can be assured that a 
promise of confidentiality will be honored, they will be less likely to 
provide information considered essential to the Department in making 
the required determinations.
    (ii) From (e)(1) because in the collection of information for 
investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages 
of the investigation. In some cases, it is only after the information 
is evaluated in light of other information that its relevance and 
necessity becomes clear. Such information permits more informed 
decision-making by the Department when making required suitability, 
eligibility, and qualification determinations
* * * * *

    Dated: February 28, 2012.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2012-6170 Filed 3-15-12; 8:45 am]
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