[Federal Register Volume 78, Number 223 (Tuesday, November 19, 2013)]
[Rules and Regulations]
[Pages 69289-69291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-27462]



Office of the Secretary

32 CFR Part 320

[Docket ID: DoD-2013-OS-0215]

Privacy Act; Implementation

AGENCY: National Geospatial-Intelligence Agency, DoD.

ACTION: Direct final rule with request for comments.


SUMMARY: National Geospatial-Intelligence Agency (NGA) is updating the 
NGA Privacy Act Program by adding the (k)(2) exemption to accurately 
describe the basis for exempting the records in the system of records 
notice NGA-008, National Geospatial-Intelligence Agency Polygraph 
Records System. In this rulemaking, the NGA proposes to exempt portions 
of this system of records from one or more provisions of the Privacy 
Act because of criminal, civil and administrative enforcement 
requirements. This direct final rule makes non-substantive changes to 
the NGA Program rules. These changes will allow the Department to add 
exemption rules to the NGA Privacy Program rules that will exempt 
applicable Department records and/or material from certain portions of 
the Privacy Act. This will improve the efficiency and effectiveness of 
DoD's program by ensuring the integrity of the security and 
counterintelligence records by the NGA 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 January 28, 2014 unless adverse 
comment is received by January 21, 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; East Tower, 2nd Floor, 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: National Geospatial-Intelligence 
Agency (NGA), ATTN: Security Specialist, Mission Support, MSRS P-12, 
7500 GEOINT Drive, Springfield, VA 22150.


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 response in a notice and 
comment process.

[[Page 69290]]

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)

    This rule will 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 

Public Law 96-511, ``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 

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

    These amendments 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 

Executive Order 13132, ``Federalism''

    These amendments 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. Therefore, no Federalism assessment is 

List of Subjects in 32 CFR Part 320


    Accordingly, 32 CFR part 320 is amended as follows:


1. The authority citation for 32 CFR part 320 continues to read as 

    Authority: Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 552a).

2. Section 320.12 is amended by adding paragraph (e) to read as 

Sec.  320.12  Exemptions.

* * * * *
    (e) System identifier and name: NGA-008, National Geospatial-
Intelligence Agency Polygraph Records System.
    (1) Exemptions: 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 to paragraph (e)(1):  When claimed, this exemption allows 
limited protection of investigative reports maintained in a system 
of records used in personnel or administrative actions.

(2) Authority: 5 U.S.C. 552a (k)(2).

    (3) Reasons: Pursuant to 5 U.S.C. 552a (k)(2), the Director of NGA 
has exempted this system from the following provisions of the Privacy 
Act, subject to the limitation set forth in 5 U.S.C. 552a(c)(3); (d); 
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I); and (f). Exemptions from these 
particular subsections are justified, on a case-by-case basis to be 
determined at the time a request is made, for the following reasons:
    (i) From subsection (c)(3) and (c)(4) (Accounting for Disclosures) 
because release of the accounting of disclosures could alert the 
subject of an investigation of an actual or potential criminal, civil, 
or regulatory violation to the existence of that investigation and 
reveal investigative interest on the part of NGA as well as the 
recipient agency. Disclosure of the accounting would therefore present 
a serious impediment to law enforcement efforts and/or efforts to 
preserve national security. Disclosure of the accounting would also 
permit the individual who is the subject of a record to impede the 
investigation, to tamper with witnesses or evidence, and to avoid 
detection or apprehension, which would undermine the entire 
investigative process.
    (ii) From subsection (d) (Access to Records) because access to the 
records contained in this system of records could inform the subject of 
an investigation of an actual or potential criminal, civil, or 
regulatory violation to the existence of that investigation and reveal 
investigative interest on the part of NGA or another agency. Access to 
the records could permit the individual who is the subject of a record 
to impede the investigation, to tamper with witnesses or evidence, and 
to avoid detection or apprehension. Amendment of the records could 
interfere with ongoing investigations and law enforcement activities 
and would impose an unreasonable administrative burden by requiring 
investigations to be continually reinvestigated. In addition, 
permitting access and amendment to such information could disclose 
security-sensitive information that could be detrimental to homeland 
    (iii) From subsection (e)(1) (Relevancy and Necessity of 
Information) because in the course of investigations into potential 
violations of Federal law, the accuracy of information obtained or 
introduced occasionally may be unclear, or the information may not be 
strictly relevant or necessary to a specific investigation. In the 
interests of effective law enforcement, it is appropriate to retain all 
information that may aid in establishing patterns of unlawful activity.
    (iv) From subsection (e)(2) (Collection of Information from 
Individuals) because requiring that information be collected from the 
subject of an investigation would alert the subject to the nature or 
existence of the investigation, thereby interfering with that 
investigation and related law enforcement activities.
    (v) From subsection (e)(3) (Notice to Subjects) because providing 
such detailed information could impede law enforcement by compromising 
the existence of a confidential investigation or reveal the identity of 
witnesses or confidential informants.
    (vi) From subsections (e)(4)(G), (e)(4)(H), and (e)(4)(I) (Agency 
Requirements) and (f) (Agency Rules), because portions of this system 
are exempt from the individual access provisions of subsection (d) for 
the reasons noted above, and therefore NGA is not required to establish 
requirements, rules, or procedures with respect to such access. 
Providing notice to individuals with respect to existence of records 
pertaining to them in the system of records or otherwise setting up 
procedures pursuant to which individuals may access and view

[[Page 69291]]

records pertaining to themselves in the system would undermine 
investigative efforts and reveal the identities of witnesses, and 
potential witnesses, and confidential informants.
    (vii) From subsection (e)(5) (Collection of Information) because 
with the collection of information for law enforcement purposes, it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. Compliance with subsection (e)(5) would 
preclude NGA personnel from using their investigative training and 
exercise of good judgment to both conduct and report on investigations.
    (viii) From subsection (e)(8) (Notice on Individuals) because 
compliance would interfere with NGA's ability to cooperate with law 
enforcement who would obtain, serve, and issue subpoenas, warrants, and 
other law enforcement mechanisms that may be filed under seal and could 
result in disclosure of investigative techniques, procedures, and 
    (ix) From subsection (g)(1) (Civil Remedies) to the extent that the 
system is exempt from other specific subsections of the Privacy Act.

    Dated: November 6, 2013.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2013-27462 Filed 11-18-13; 8:45 am]