Federal Register / Vol. 77, No. 52 / Friday, March 16, 2012 / Rules and Regulations 15587 

Dated: February 28, 2012. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2012–6169 Filed 3–15–12; 8:45 am] 

BILLING CODE 5001–06–P 

DEPARTMENT OF DEFENSE 

Office of the Secretary 

[Docket ID DoD–2012–OS–0027] 

32 CFR Part 311 

Privacy Act of 1974; Implementation 

AGENCY: Office of the Secretary, DoD. 

ACTION: Direct final rule with request for 

comments. 

SUMMARY: The Office of the Secretary of 

Defense is exempting those records 

contained in DMDC 11, entitled 

‘‘Investigative Records Repository’’, 

when investigatory material is compiled 

solely for the purpose of determining 

suitability, eligibility, or qualifications 

for Federal civilian employment, 

military service, Federal contracts, or 

access to classified information, but 

only to the extent that such material 

would reveal the identity of a 

confidential source. 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: 

• 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, 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: 

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 

■ 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). 


srobinson on DSK4SPTVN1PROD with RULES
15588 Federal Register / Vol. 77, No. 52 / Friday, March 16, 2012 / Rules and Regulations 

■ 2. Section 311.8 is amended by 

revising paragraph (c)(17) to read as 

follows: 

§ 311.8 Procedures for exemptions. 

* * * * * 

(c) * * * 

(17) System identifier and name: 

DMDC 13, Investigative Records 

Repository. 

(i) Exemptions: (A) 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. 

(B) Records maintained in connection 

with providing protective services to the 

President and other individuals under 

18 U.S.C. 3506, may be exempt pursuant 

to 5 U.S.C. 552a(k)(3). 

(C) Investigatory material compiled 

solely for the purpose of determining 

suitability, eligibility, or qualifications 

for Federal civilian employment, 

military service, Federal contracts, or 

access to classified information may be 

exempt pursuant to 5 U.S.C. 552a(k)(5), 

but only to the extent that such material 

would reveal the identity of a 

confidential source. 

(D) Any portion of this system that 

falls under the provisions of 5 U.S.C. 

552a(k)(2), (k)(3), or (k)(5) may be 

exempt from the following subsections 

of 5 U.S.C. 552(c)(3), (d), (e)(1), (e)(4)(G), 

(H), and (I), and (f). 

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

(k)(3), or (k)(5). 

(iii) Reasons: (A) From subsection 

(c)(3) because it will enable the 

Department 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 source’s 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 agency’s 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: February 28, 2012. 

Patricia L. Toppings, 

OSD Federal Register Liaison Officer, 

Department of Defense. 

[FR Doc. 2012–6167 Filed 3–15–12; 8:45 am] 

BILLING CODE 5001–06–P 

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. 

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: 


srobinson on DSK4SPTVN1PROD with RULES