[Federal Register Volume 77, Number 180 (Monday, September 17, 2012)]
[Rules and Regulations]
[Pages 57013-57015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-22655]



Office of the Secretary

[Docket ID DoD-2012-OS-0102]

32 CFR Part 319

Privacy Act; Implementation

AGENCY: Defense Intelligence Agency, DoD.

ACTION: Direct final rule with request for comments.


SUMMARY: The Defense Intelligence Agency is updating the Defense 
Intelligence Agency Privacy Act Program, by adding the (k)(2) exemption 
to accurately describe the basis for exempting the records in the 
system of records notice LDIA 10-0002, Foreign Intelligence and 
Counterintelligence Operation Records. This direct final rule makes 
non-substantive changes to the Defense Intelligence Agency 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 ensuring the integrity 
of ongoing Foreign Intelligence and Counterintelligence Operations 
Records related to the protection of national security, DoD personnel, 
facilities and equipment of the Defense Intelligence Agency and the 
Department of Defense.
    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 will be effective on November 26, 2012 unless comments 
are received that would result in a contrary determination. Comments 
will be accepted on or before November 16, 2012. If adverse comment is 
received, DoD 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, 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. Theresa Lowery at (202) 231-1193.


Direct Final Rule and Significant Adverse Comments

    DoD has determined this rulemaking meets the criteria for a direct 
final rule because it involves non-substantive 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

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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 Privacy Act rules for the Department of 
Defense do 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 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 319

    Accordingly, 32 CFR part 319 is amended as follows:


1. The authority citation for 32 CFR Part 319 continues to read as 

    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

2. Section 319.13 is amended by adding paragraph (h) to read as 

Sec.  319.13  Specific exemptions.

* * * * *
    (h) System identifier and name: LDIA 10-0002, Foreign Intelligence 
and Counterintelligence Operation Records.
    (1) Exemption: (i) 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 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 the information, the individual will be provided access 
to the information exempt 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.
    (ii) The specific sections of 5 U.S.C. 552a from which the system 
is to be exempted are 5 U.S.C. 552a (c)(3) and (c)(4), (d), (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (H), and (I), (e)(5), (f), and (g).
    (2) Authority: 5 U.S.C. 552a(k)(2).
    (3) Reasons: (i) From subsection (c)(3) because to grant access to 
an accounting of disclosures as required by the Privacy Act, including 
the date, nature, and purpose of each disclosure and the identity of 
the recipient, could alert the subject to the existence of the 
investigation or prospective interest by DIA or other agencies. This 
could seriously compromise case preparation by prematurely revealing 
its existence and nature; compromise or interfere with witnesses or 
make witnesses reluctant to cooperate; and lead to suppression, 
alteration, or destruction of evidence.
    (ii) From subsections (c)(4), (d), and (f) because providing access 
to this information could result in the concealment, destruction or 
fabrication of evidence and jeopardize the safety and well being of 
informants, witnesses and their families, and law enforcement personnel 
and their families. Disclosure of this information could also reveal 
and render ineffectual investigative techniques, sources, and methods 
used by this component and could result in the invasion of privacy of 
individuals only incidentally related to an investigation. 
Investigatory material is exempt to the extent that the disclosure of 
such material would reveal the identity of a source who furnished the 
information to the Government under an express promise that the 
identity of the source would be held in confidence, or prior to 
September 27, 1975 under an implied promise that the identity of the 
source would be held in confidence. This exemption will protect the 
identities of certain sources that would be otherwise unwilling to 
provide information to the Government. The exemption of the 
individual's right of access to his/her records and the reasons 
therefore necessitate the exemptions of this system of records from the 
requirements of the other cited provisions.
    (iii) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in the 
early stages of an investigation. In some cases, it is only after the 
information is evaluated in light of other evidence that its relevance 
and necessity will be clear.
    (iv) From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or may 
not be practical in a criminal investigation.
    (v) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal investigation. 
The effect would be somewhat adverse to established investigative 
methods and techniques.
    (vi) From subsections (e)(4)(G), (H), and (I) because it will 
provide protection against notification of investigatory material 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). 
In addition, this system of records is exempt from the access 
provisions of subsection (d).
    (vii) From subsection (e)(5) because the requirement that records 

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maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is the 
nature of 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 significance as further 
investigation brings new details to light.
    (viii) From subsection (f) because the agency's rules are 
inapplicable to those portions of the system that are exempt and would 
place the burden on the agency of either confirming or denying the 
existence of a record pertaining to a requesting individual might in 
itself provide an answer to that individual relating to an on-going 
investigation. The conduct of a successful investigation leading to the 
indictment of a criminal offender precludes the applicability of 
established agency rules relating to verification of record, disclosure 
of the record to the individual and record amendment procedures for 
this record system.
    (ix) From subsection (g) because this system of records should be 
exempt to the extent that the civil remedies relate to provisions of 5 
U.S.C. 552a from which this rule exempts the system.
* * * * *

    Dated: September 11, 2012.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2012-22655 Filed 9-14-12; 8:45 am]