[Federal Register Volume 85, Number 188 (Monday, September 28, 2020)]
[Rules and Regulations]
[Pages 60714-60716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21379]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DOD-2019-OS-0122]
RIN 0790-AK47
Privacy Act of 1974; Implementation
AGENCY: Office of the Secretary of Defense, DoD.
ACTION: Direct final rule with request for comments.
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SUMMARY: The Office of the Secretary proposes to exempt records
maintained in CIG-26, ``Case Control System--Investigative.'' The
System of Records Notice was published in the Federal
[[Page 60715]]
Register on August 9, 2011. This rule is being published as a direct
final rule as the DoD does not expect to receive any adverse comments.
If such comments are received, this direct final rule will be cancelled
and a proposed rule for comments will be published.
DATES: The rule will be effective on December 7, 2020 unless comments
are received that would result in a contrary determination. Comments
will be accepted on or before November 27, 2020.
ADDRESSES: You may submit comments, identified by docket number and
title, by any of the following methods.
* Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
* Mail: DoD cannot receive written comments at this time due to the
COVID-19 pandemic. Comments should be sent electronically to the docket
listed above.
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. Anna Rivera, 703-699-5680.
SUPPLEMENTARY INFORMATION: The Office of the Secretary proposes to
exempt records maintained in CIG-26, ``Case Control System-
Investigative,'' from subsections (c)(3) and (c)(4); (d); (e)(1),
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), and (e)(8);
and (g) of the Privacy Act pursuant to 5 U.S.C. 552a (j)(2), (k)(1),
and (k)(2).
This direct final rule adds to the Office of the Inspector General
(OIG) exemptions found in 32 CFR 310.28. This exemption rule will allow
the DoD OIG to efficiently and effectively implement the DoD Inspector
General program by exempting certain records from pertinent provisions
of 5 U.S.C. 552a.
The DoD OIG maintains this system of records in order to carry out
its responsibilities pursuant to the Inspector General Act of 1978, as
amended. The DoD OIG is statutorily directed to conduct and supervise
investigations relating to the programs and operations of the DoD; to
promote economy, efficiency, and effectiveness in the administration of
such programs and operations; and to prevent and detect fraud, waste,
and abuse in such programs and operations. Accordingly, the records in
this system are used in the course of investigating individuals
suspected of administrative or criminal misconduct.
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
It has been previously determined that all 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.
Executive Order 13771, ``Reducing Regulation and Controlling Regulatory
Costs''
This final rule is not subject to the requirements of E.O. 13771
because it is not significant under E.O. 12866.
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.
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 reporting or recordkeeping requirements on
the public under the Paperwork Reduction Act of 1995.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)
It has been certified 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.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. We will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States. A
major rule cannot take effect until 60 days after it is published in
the Federal Register. This direct final rule is not a ``major rule'' as
defined by 5 U.S.C. 804(2).
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 310
Privacy.
Accordingly, 32 CFR part 310 is amended as follows:
PART 310--[AMENDED]
0
1. The authority citation for part 310 continues to read as follows:
Authority: 5 U.S.C. 552a.
0
2. Amend Sec. 310.28 by adding paragraph (c)(9) to read as follows:
Sec. 310.28 Office of the Inspector General (OIG) exemptions.
* * * * *
(c) * * *
(9) System identifier and name. CIG-26, Case Control System-
Investigative.
(i) Exemption. Any portion of this system which falls within the
provisions of 5 U.S.C. 552a(j)(2) may be exempt from the following
subsections of 5 U.S.C. 552a: (c)(3), (c)(4), (d), (e)(1), (e)(2),
(e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), and (g), as applicable.
In addition, any portion of this system which falls within the
provisions of 5 U.S.C. 552a(k)(1) or (k)(2) may be exempt from the
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G)
through
[[Page 60716]]
(I), as applicable. Exempted records from other systems of records may
in-turn become part of the case record in this system. To the extent
that copies of exempt records from those `other' systems of records are
entered into this system, the DoD OIG claims the same exemptions for
the records from those `other' systems that are entered into this
system, as claimed for the original primary system of which they are a
part. Records are only exempt from pertinent provisions of 5 U.S.C.
552a to the extent such provisions have been identified and an
exemption claimed for the original record and the purposes underlying
the exemption for the original record still pertain to the record which
is now contained in this system of records. The exemption rule for the
original records will identify the specific reasons why the records are
exempt from specific provisions of 5 U.S.C. 552a.
(ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
(iii) Reasons. (A) From subsections (c)(3) and (c)(4) because
making available to a record subject the accounting of disclosure of
investigations concerning him or her would specifically reveal an
investigative interest in the individual. Revealing this information
would reasonably be expected to compromise open or closed
administrative or criminal investigation efforts to a known or
suspected offender by notifying the record subject that he or she is
under investigation. This information could also prompt 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. Granting access to information that is properly classified
pursuant to executive order may cause damage to national security.
Additionally, 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. It can also
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
investigation or constitute a potential danger to the health or safety
of law enforcement personnel, confidential informants, and witnesses.
Amendment of open or active investigations 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 subsection (e)(1) because it is not always possible to
determine what information is relevant and necessary at an early stage
in a given investigation, and because DoD OIG 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. The nature of the criminal and/or administrative
law enforcement investigative functions creates unique problems in
prescribing a specific parameter and a particular case with respect to
what information is relevant or necessary. Also, due to the DoD OIG's
close liaison and working relationships with other Federal, State,
local and foreign country criminal and administrative law enforcement
agencies, information may be received which may relate to a case under
the investigative jurisdiction of another agency. The maintenance of
this information may be necessary to provide leads for appropriate
criminal and administrative law enforcement purposes and to establish
patterns of activity which may relate to the jurisdiction of other
cooperating agencies.
(D) From subsection (e)(2) because it is not always in the best
interest of law enforcement to collect information to the greatest
extent practicable directly from an investigative subject. Requiring
the collection of information to the greatest extent practicable
directly from an investigative subject would present a serious
impediment to law enforcement in that the subject of the investigation
would be placed on notice of the existence of the investigation and
would therefore be able to avoid detection.
(E) 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.
(F) From subsections (e)(4)(G) through (I) because this system of
records is exempt from the access provisions of subsection (d).
(G) From subsection (e)(5) because the requirement that records be
maintained with attention to accuracy, relevance, timeliness, and
completeness would unfairly hamper the 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 complete. With the passage of time, seemingly
irrelevant or untimely information may acquire new significance as
further investigation brings new details to light.
(H) From subsection (e)(8) because the notice requirements of this
provision could present a serious impediment to criminal law
enforcement investigations by revealing investigative techniques,
procedures, and existence of sensitive information and/or confidential
sources.
(I) To the extent that exemptions have been established from other
provisions of the Privacy Act, the civil remedies provisions of
subsection (g) are inapplicable. The nature of criminal law enforcement
investigations and the utilization of authorized exemptions should not
increase the Department's exposure to civil litigation under the
Privacy Act.
Dated: September 23, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-21379 Filed 9-25-20; 8:45 am]
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