[Federal Register Volume 76, Number 78 (Friday, April 22, 2011)]
[Rules and Regulations]
[Pages 22613-22614]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9746]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 311

[Docket ID: DoD-2011-OS-0010]


Privacy Act; 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 proposing to exempt 
one (1) new system of records, DA&M 01, entitled, ``Civil Liberties 
Program Case Management System'' from subsections (c)(3); (d)(1), (2), 
(3), (4); (e)(1) and (e)(4)(G), (H), (I); and (f) of the Privacy Act, 
pursuant to 5 U.S.C. 552a(k).
    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 
will improve the efficiency and effectiveness of DoD's program by 
preserving the exempt status of the applicable records and/or material 
when the purposes underlying the exemption(s) are valid and necessary.
    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 July 1, 2011 unless comments are 
received that would result in a contrary determination. Comments will 
be accepted on or before June 21, 2011.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:
    <bullet> Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Mail: Federal Docket Management System Office, Room 3C843, 
1160 Defense Pentagon, Washington, DC 20301-1160.
    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 (703) 588-6830.

SUPPLEMENTARY INFORMATION:

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 Progams. 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 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 this Privacy Act rule for the 
Department of Defense 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.

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 of 1995''

    It has been determined that this 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.

Executive Order 13132, ``Federalism''

    It has been determined that the Privacy Act rules for the 
Department of Defense do not have federalism implications. The 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.

List of Subjects in 32 CFR Part 311

    Privacy.

    Accordingly, 32 CFR part 311 is amended 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)(19) as follows:


Sec.  311.8  Procedures for exemptions.

* * * * *
    (c) * * *
    (19) System identifier and name: DA&M 01, Civil Liberties Program 
Case Management System.
    (i) Exemptions: Records contained in this System of Records may be

[[Page 22614]]

exempted from the requirements of subsections (c)(3); (d)(1), (2), (3), 
and (4); (e)(1) and (e)(4)(G), (H), and (I); and (f) of the Privacy Act 
pursuant to 5 U.S.C. 552a(k)(1). Records may be exempted from these 
subsections or, additionally, from the requirements of subsections 
(c)(4); (e)(2), (3), and (8) of the Privacy Act of 1974 consistent with 
any exemptions claimed under 5 U.S.C. 552a (j)(2) or (k)(1), (k)(2), or 
(k)(5) by the originator of the record, provided the reason for the 
exemption remains valid and necessary. An exemption rule for this 
system has been promulgated in accordance with the requirements of 5 
U.S.C. 553(b)(1), (2), and (3), (c) and (e) and is published at 32 CFR 
part 311.
    (ii) Authority: 5 U.S.C. 552a (j)(2), (k)(1), (k)(2), or (k)(5).
    (iii) Reasons: (A) From subsections (c)(3) (accounting of 
disclosures) because an accounting of disclosures from records 
concerning the record subject would specifically reveal an intelligence 
or investigative interest on the part of the Department of Defense and 
could result in release of properly classified national security or 
foreign policy information.
    (B) From subsections (d)(1), (2), (3) and (4) (record subject's 
right to access and amend records) because affording access and 
amendment rights could alert the record subject to the investigative 
interest of law enforcement agencies or compromise sensitive 
information classified in the interest of national security. In the 
absence of a national security basis for exemption, records in this 
system may be exempted from access and amendment to the extent 
necessary to honor promises of confidentiality to persons providing 
information concerning a candidate for position. Inability to maintain 
such confidentiality would restrict the free flow of information vital 
to a determination of a candidate's qualifications and suitability.
    (C) From subsection (e)(1) (maintain only relevant and necessary 
records) because in the collection of information for investigatory 
purposes, it is not always possible to determine the relevance and 
necessity of particular information in the early stages of the 
investigation. It is only after the information is evaluated in light 
of other information that its relevance and necessity becomes clear. In 
the absence of a national security basis for exemption under subjection 
(k)(1), records in this system may be exempted from the relevance 
requirement pursuant to subjection (k)(5) because it is not possible to 
determine in advance what exact information may assist in determining 
the qualifications and suitability of a candidate for position. 
Seemingly irrelevant details, when combined with other data, can 
provide a useful composite for determining whether a candidate should 
be appointed.
    (D) From subsections (e)(4)(G) and (H) (publication of procedures 
for notifying subject of the existence of records about them and how 
they may access records and contest contents) because the system is 
exempted from subsection (d) provisions regarding access and amendment, 
and from the subsection (f) requirement to promulgate agency rules. 
Nevertheless, the Office of the Secretary of Defense has published 
notice concerning notification, access, and contest procedures because 
it may, in certain circumstances, determine it appropriate to provide 
subjects access to all or a portion of the records about them in this 
system of records.
    (E) From subsection (e)(4)(I) (identifying sources of records in 
the system of records) because identifying sources could result in 
disclosure of properly classified national defense or foreign policy 
information, intelligence sources and methods, and investigatory 
techniques and procedures. Notwithstanding its proposed exemption from 
this requirement the Office of the Secretary of Defense identifies 
record sources in broad categories sufficient to provide general notice 
of the origins of the information it maintains in this system of 
records.
    (F) From subsection (f) (agency rules for notifying subjects to the 
existence of records about them, for accessing and amending records, 
and for assessing fees) because the system is exempt from subsection 
(d) provisions regarding access and amendment of records by record 
subjects. Nevertheless, the Office of the Secretary of Defense has 
published agency rules concerning notification of a subject in response 
to his request if any system of records named by the subject contains a 
record pertaining to him and procedures by which the subject may access 
or amend the records. Notwithstanding exemption, the Office of the 
Secretary of Defense may determine it appropriate to satisfy a record 
subject's access request.

    Dated: April 8, 2011.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-9746 Filed 4-21-11; 8:45 am]
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