[Federal Register Volume 79, Number 210 (Thursday, October 30, 2014)]
[Rules and Regulations]
[Pages 64507-64509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-25833]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 311
[Docket ID: DoD-2014-OS-0126]
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 DPFPA 05, entitled ``Computer Aided Dispatch and
Records Management System (CAD/RMS),'' pertaining to investigatory
material compiled for law enforcement purposes (under (j)(2) of the
Act) to enable OSD to conduct certain investigations and relay law
enforcement information without compromise of the information, and
protect investigative techniques and efforts employed, as well as
investigatory material compiled for law enforcement purposes (under
(k)(2) of the Act), other than material within the scope of subsection
(k)(2) of the Privacy Act to enable the protection of 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 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 amend these 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
[[Page 64508]]
record, disclosure of the record to the subject, and record amendment
procedures.
DATES: This rule will be effective on January 8, 2015 unless adverse
comments are received by December 29, 2014. If adverse comment is
received, the Department of Defense will publish a timely withdrawal of
the 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, 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 (571) 372-0461.
SUPPLEMENTARY INFORMATION: 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 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.
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 withdraw
this direct final rule by publishing a notice 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 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 certified that this rule will not have a 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 that it will not significantly or uniquely affect
small governments.
Executive Order 13132, ``Federalism''
It has been determined that this 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. Therefore, no
Federalism assessment is required.
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: 5 U.S.C. 522a.
0
2. Section 311.8 is amended by adding paragraph (c)(22) to read as
follows:
Sec. 311.8 Procedures for exemptions.
* * * * *
(c) * * *
(22) System identifier and name: DPFPA 05, Computer Aided Dispatch
and Records Management System (CAD/RMS).
(i) Exemptions: Portions of this system that fall within 5 U.S.C.
552a(j)(2) and/or (k)(2) are exempt from the following provisions of 5
U.S.C. 552a, section (c)(3) and (4); (d); (e)(1) through (e)(3);
(e)(4)(G) through (I); (e)(5); (e)(8); (f) and (g) of the Act, as
applicable.
(ii) Authority: 5 U.S.C. 552a(j)(2) and (k)(2).
(iii) Reasons: (A) From subsections (c)(3) and (4) 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 offender 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 (d) because these provisions concern individual
access to and amendment of certain records contained in this system,
including law enforcement and investigatory 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 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
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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 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 law enforcement
investigations and analysis activities and impose an excessive
administrative burden by requiring investigations, analyses, and
reports to be continuously reinvestigated and revised.
(C) From subsections (e)(1) through (e)(3) because it is not always
possible to determine what information is relevant and necessary at an
early stage in a given investigation. Also, because DoD and other
agencies may not always know what information about a known or
suspected offender may be relevant to law enforcement for the purpose
of conducting an operational response.
(D) From subsections (e)(4)(G) through (I) (Agency Requirements)
because portions of this system are exempt from the access and
amendment provisions of subsection (d).
(E) From subsection (e)(5) because the requirement that records be
maintained with attention to accuracy, relevance, timeliness, and
completeness would unfairly hamper the criminal investigative process.
It is the nature of criminal law enforcement for investigations to
uncover the commission of illegal acts at diverse stages. It is
frequently 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
significant as further investigation brings new details to light.
(F) 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.
(G) From subsection (f) because requiring the Agency to grant
access to records and establishing agency rules for amendment of
records would compromise the existence of any criminal, civil, or
administrative enforcement activity. 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.
(H) From subsection (g) for compatibility with the exemption
claimed from subsection (f), the civil remedies provisions of
subsection (g) must be suspended for this record system. Because of the
nature of criminal investigations, standards of accuracy, relevance,
timeliness and completeness cannot apply to this record system.
Information gathered in criminal investigations if often fragmentary
and leads relating to an individual in the context of one investigation
may instead pertain to a second investigation.
Dated: October 27, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2014-25833 Filed 10-29-14; 8:45 am]
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