[Federal Register Volume 77, Number 52 (Friday, March 16, 2012)]
[Rules and Regulations]
[Pages 15588-15590]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-6168]


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DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID DoD-2012-OS-0028]

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 13 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, 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 is effective on May 25, 2012 unless comments are 
received that would result in a contrary determination. Comments will 
be accepted on or before May 15, 2012. If DoD receives a significant 
adverse comment, the Department will publish a withdrawal of this 
direct final rule in the Federal Register.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:

[[Page 15589]]

    <bullet> Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    <bullet> Mail: Federal Docket Management System Office, 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. Cindy Allard at (703) 588-6830.

SUPPLEMENTARY INFORMATION: This direct final rule is consistent with 
the rule previously 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 Programs. DoD expects no opposition to 
the changes and no significant adverse comments. However, if DoD 
receives a significant adverse comment, the Department will publish a 
withdrawal of this direct final rule 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 revising paragraph (c)(20) to read as 
follows:


Sec.  311.8  Procedures for exemptions.

* * * * *
    (c) * * *
    (20) System identifier and name: DMDC 13 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 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

[[Page 15590]]

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: February 28, 2012.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2012-6168 Filed 3-15-12; 8:45 am]
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