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[Federal Register Volume 76, Number 182 (Tuesday, September 20, 2011)]
[Rules and Regulations]
[Pages 58103-58105]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-23758]

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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DoD-2011-OS-0004]

32 CFR Part 311

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 DMDC 14 DoD, entitled ``Defense Clearance and 
Investigations Index (DCII)'', pertaining to investigatory material 
compiled for law enforcement purposes to enable OSD components to 
conduct certain investigations and relay law enforcement information 
without compromise of the information, protect investigative techniques 
and efforts employed, and 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 
and counterintelligence information, 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,

[[Page 58104]]

requiring OSD to grant access to records and agency rules for access 
and amendment of 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 record, 
disclosure of the record to the subject, and record amendment 
procedures.
    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 
change will allow the Department to move part of the Department's 
personnel security program records from the Defense Security Service 
Privacy Program to the Office of the Secretary of Defense Privacy 
Program. 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 November 29, 2011 unless comments 
are received that would result in a contrary determination. Comments 
will be accepted on or before November 21, 2011.

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, 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: This direct final rule is consistent with 
the rule currently published at 32 CFR part 321.13(h) and another rule 
is being published to remove and reserve 321.13(h).

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 95-511, ``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 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--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: Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 522a).

0
2. Section 311.8 is amended by adding paragraph (c)(20) to read as 
follows:

Sec.  311.8  Procedures for exemptions.

* * * * *
    (c) * * *
    (20) System identifier and name: DMDC 14 DoD, Defense Clearance and 
Investigations Index.
    (i) Exemptions: Investigatory material compiled for law enforcement 
purposes 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

[[Page 58105]]

by Federal law or for which he would otherwise be eligible, as a result 
of the maintenance of such information, the individual will be provided 
access to such information except to the extent that disclosure would 
reveal the identity of a confidential source. Any portion of this 
system that falls under the provisions of 5 U.S.C. 552a(k)(2) may be 
exempt from the following subjections of 5 U.S.C. 552a(c)(3); (d); 
(e)(1); (e)(4)(G), (H), and (I) and (f).
    (ii) Authority: 5 U.S.C. 552a(k)(2).
    (iii) Reasons: (A) From subsection (c)(3) because it will enable 
OSD components to conduct certain investigations and relay law 
enforcement information without compromise of the information, 
protection of investigative techniques and efforts employed, and 
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 (or prior to the 
effective date of the Act, under an implied promise).
    (B) From subsections (e)(1), (e)(4)(G), (H), and (I) because it 
will provide protection against notification of investigatory material 
including certain reciprocal investigations and counterintelligence 
information, 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).
    (C) From subsections (d) and (f) because requiring OSD to grant 
access to records and agency rules for access and amendment of 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 record, disclosure of the record 
to the subject, and record amendment procedures.

    Dated: August 24, 2011.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-23758 Filed 9-19-11; 8:45 am]
BILLING CODE 5001-06-P
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