[Federal Register Volume 79, Number 39 (Thursday, February 27, 2014)]
[Proposed Rules]
[Pages 11048-11050]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-04273]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DoD-2014-OS-0024]

32 CFR Part 311


Privacy Act; Implementation

AGENCY: Office of the Secretary, DoD.

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Office of the Secretary of Defense (OSD) is amending its 
regulations to exempt portions of a new system of records from certain 
provisions of the Privacy Act. Specifically, the Department proposes to 
exempt portions of DMDC 16 DoD, entitled ``Interoperability Layer 
Service (IoLS)'' from one or more provisions of the Privacy Act because 
of criminal, civil, and administrative enforcement requirements. In 
2008, the U.S. Congress passed legislation that obligated the Secretary 
of Defense to develop access standards for visitors applicable to all 
military installations in the U.S. The Department of Defense (DoD) 
developed a visitor system to manage multiple databases that are 
capable of identifying individuals seeking access to DoD installations 
who may be criminal and/or security threats. The purpose of the vetting 
system is to screen individuals wishing to enter a DoD facility, to 
include those who have been previously given authority to access DoD 
installations, against the FBI National Crime Information Center (NCIC) 
Wanted Person File. The NCIC has a properly documented exemption rule 
and to the extent that portions of these exempt records may become part 
of IoLS, OSD hereby claims the same exemptions for the records as 
claimed at their source (JUSTICE/FBI-001, National Crime Information 
Center (NCIC)).

DATES: Comments must be received on or before April 28, 2014 to be 
considered by this agency.

ADDRESSES: You may submit comments, identified by docket number and/or 
RIN 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. Cindy Allard at (571) 372-0461.

SUPPLEMENTARY INFORMATION:

[[Page 11049]]

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    It has been determined that this rule is not a significant rule. 
This rule does 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 rule for 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. A Regulatory Flexibility 
Analysis is not required.

Public Law 95-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    This rule does not contain any information collection requirements 
subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et 
seq.).

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been determined that this rule 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 will not significantly or uniquely affect small 
governments.

Executive Order 13132, ``Federalism''

    Executive Order 13132 requires regulations be reviewed for 
Federalism effects on the institutional interest of states and local 
governments, and if the effects are sufficiently substantial, 
preparation of the Federal assessment is required to assist senior 
policy makers. The amendments will not have any substantial direct 
effects on state and local governments within the meaning of the EO. 
Therefore, no Federalism assessment is required.

List of Subjects in 32 CFR Part 311

    Privacy.

    Accordingly, 32 CFR part 311 is proposed to be amended to read as 
follows:

PART 311--[AMENDED]

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 adding paragraph (c)(21) as follows:


Sec.  311.8  Procedures for exemptions.

* * * * *
    (c) * * *
    (21) System identifier and name: DMDC 16 DoD, Interoperability 
Layer Service (IoLS).
    (i) Exemption: To the extent that copies of exempt records from 
JUSTICE/FBI-001, National Crime Information Center (NCIC) are entered 
into the Interoperability Layer Systems records, the OSD hereby claims 
the same exemptions, (j)(2) and (k)(3), for the records as claimed in 
JUSTICE/FBI-001, National Crime Information Center (NCIC). Pursuant to 
5 U.S.C. 552a portions of this system that fall within (j)(2) and 
(k)(3) are exempt from the following provisions of 5 U.S.C. 552a, 
section (c)(3) and (4); (d); (e)(1) through (3); (e)(4)(G) through (I); 
(e)(5) and (8); (f); and (g) (as applicable) of the Act.
    (ii) Authority: 5 U.S.C. 552a(j)(2) and (k)(3).
    (iii) Reasons: (A) From subsection (c)(3) because making available 
to a record subject the accounting of disclosure from records 
concerning him or her would specifically reveal any investigative 
interest in the individual. Revealing this information could reasonably 
be expected to compromise ongoing efforts to investigate a known or 
suspected terrorist by notifying the record subject that he or she is 
under investigation. This information could also permit the record 
subject to take measures to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses, or flee the area to avoid or 
impede the investigation.
    (B) From subsection (c)(4) because portions of this system are 
exempt from the access and amendment provisions of subsection (d).
    (C) From subsection (d) because these provisions concern individual 
access to and amendment of certain records contained in this system, 
including law enforcement, counterterrorism, investigatory, and 
intelligence records. Compliance with these provisions could alert the 
subject of an investigation of the fact and nature of the 
investigation, and/or the investigative interest of intelligence or law 
enforcement agencies; compromise sensitive information related to 
national security; interfere with the overall law enforcement process 
by leading to the destruction of evidence, improper influencing of 
witnesses, fabrication of testimony, and/or flight of the subject; 
could identify a confidential source or disclose information which 
would constitute an unwarranted invasion of another's personal privacy; 
reveal a sensitive investigative or intelligence technique; or 
constitute a potential danger to the health or safety of law 
enforcement personnel, confidential informants, and witnesses. 
Amendment of these records would interfere with ongoing 
counterterrorism, law enforcement, or intelligence investigations and 
analysis activities and impose an impossible administrative burden by 
requiring investigations, analyses, and reports to be continuously 
reinvestigated and revised.
    (D) From subsection (e)(1) because it is not always possible to 
determine what information is relevant and necessary to complete an 
identity comparison between the individual seeking access and a known 
or suspected terrorist. Also, because DoD and other agencies may not 
always know what information about an encounter with a known or 
suspected terrorist will be relevant to law enforcement for the purpose 
of conducting an operational response.
    (E) From subsection (e)(2) because application of this provision 
could present a serious impediment to counterterrorism, law 
enforcement, or intelligence efforts in that it would put the subject 
of an investigation, study, or analysis on notice of that fact, thereby 
permitting the subject to engage in conduct designed to frustrate or 
impede that activity. The nature of counterterrorism, law enforcement, 
or intelligence investigations is such that vital information about an 
individual frequently can be obtained only from other persons who are 
familiar with such individual and his/her activities. In such 
investigations, it is not feasible to rely upon information furnished 
by the individual concerning his own activities.
    (F) From subsection (e)(3) to the extent that this subsection is 
interpreted to require DoD to provide notice to an individual if DoD or 
another agency receives or collects information about that individual 
during an investigation or from a third party. Should this subsection 
be so interpreted, exemption

[[Page 11050]]

from this provision is necessary to avoid impeding counterterrorism, 
law enforcement, or intelligence efforts by putting the subject of an 
investigation, study, or analysis on notice of that fact, thereby 
permitting the subject to engage in conduct intended to frustrate or 
impede the activity.
    (G) From subsection (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) because portions of this system are exempt from the 
access and amendment provisions of subsection (d).
    (H) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness could unfairly hamper law enforcement processes. It is the 
nature of law enforcement to uncover the commission of illegal acts at 
diverse stages. It is often impossible to determine initially what 
information is accurate, relevant, timely, and least of all complete. 
With the passage of time, seemingly irrelevant or untimely information 
may acquire new significance as further details are brought to light.
    (I) From subsection (e)(8) because the requirement to serve notice 
on an individual when a record is disclosed under compulsory legal 
process could unfairly hamper law enforcement processes. It is the 
nature of law enforcement that there are instances where compliance 
with these provisions could alert the subject of an investigation of 
the fact and nature of the investigation, and/or the investigative 
interest of intelligence or law enforcement agencies; compromise 
sensitive information related to national security; interfere with the 
overall law enforcement process by leading to the destruction of 
evidence, improper influencing of witnesses, fabrication of testimony, 
and/or flight of the subject; reveal a sensitive investigative or 
intelligence technique; or constitute a potential danger to the health 
or safety of law enforcement personnel, confidential informants, and 
witnesses.
    (J) From subsection (f) because requiring the Agency to grant 
access to records and establishing agency rules for amendment of 
records would unfairly impede the agency's law enforcement mission. To 
require the confirmation or denial of the existence of a record 
pertaining to a requesting individual may in itself provide an answer 
to that individual relating to the existence of an on-going 
investigation. The investigation of possible unlawful activities would 
be jeopardized by agency rules requiring verification of the record, 
disclosure of the record to the subject, and record amendment 
procedures.
    (K) From subsection (g) to the extent that the system is exempt 
from other specific subsections of the Privacy Act.

    Dated: February 21, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2014-04273 Filed 2-26-14; 8:45 am]
BILLING CODE 5001-06-P