Proposed Rule2022-13572
Privacy Act of 1974; Implementation
Primary source
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Published
June 24, 2022
Issuing agencies
Defense Department
Abstract
The Department of Defense (Department or DoD) is giving concurrent notice of a new Department-wide system of records pursuant to the Privacy Act of 1974 for the DoD-0010, "Counterintelligence Functional Services" system of records and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of this system of records from certain provisions of the Privacy Act because of national security, law enforcement, and employment suitability mission areas.
Full Text
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<title>Federal Register, Volume 87 Issue 121 (Friday, June 24, 2022)</title>
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[Federal Register Volume 87, Number 121 (Friday, June 24, 2022)]
[Proposed Rules]
[Pages 37774-37776]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-13572]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID DoD-2022-OS-0066]
RIN 0790-AL08
Privacy Act of 1974; Implementation
AGENCY: Office of the Secretary of Defense (OSD), Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: The Department of Defense (Department or DoD) is giving
concurrent notice of a new Department-wide system of records pursuant
to the Privacy Act of 1974 for the DoD-0010, ``Counterintelligence
Functional Services'' system of records and this proposed rulemaking.
In this proposed rulemaking, the Department proposes to exempt portions
of this system of records from certain provisions of the Privacy Act
because of national security, law enforcement, and employment
suitability mission areas.
DATES: Send comments on or before August 23, 2022.
ADDRESSES: You may submit comments, identified by docket number,
Regulation Identifier Number (RIN), and title, by any of the following
methods.
* Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>. Follow
the instructions for submitting comments.
* Mail: Department of Defense, Office of the Assistant to the
Secretary of Defense for Privacy, Civil Liberties, and Transparency,
Regulatory Directorate, 4800 Mark Center Drive, Attn: Mailbox 24, Suite
08D09, Alexandria, VA 22350-1700.
Instructions: All submissions received must include the agency name
and docket number or 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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> as they are received without
change, including any personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Ms. Rahwa Keleta, Defense Privacy and
Civil Liberties Division, Directorate for Privacy, Civil Liberties and
Freedom of Information, Office of the Assistant to the Secretary of
Defense for Privacy, Civil Liberties, and Transparency, Department of
Defense, 4800 Mark Center Drive, Mailbox #24, Suite 08D09, Alexandria,
VA 22350-1700; <a href="/cdn-cgi/l/email-protection#ade2fee983e9fdeee1f9e9edc0ccc4c183c0c4c1"><span class="__cf_email__" data-cfemail="347b67701a7064777860707459555d581a595d58">[email protected]</span></a>; (703) 571-0070.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, the DoD is establishing
a new DoD-wide system of records titled ``Counterintelligence
Functional Services,'' DoD-0010. This system of records notice
describes DoD's collection, use, and maintenance of records about
counterintelligence functional services (CIFS). The purpose of CIFS is
to protect Department resources and personnel from foreign adversaries
who seek to exploit sensitive information, operations, and programs to
the detriment of the U.S. government. The system of records consists of
both electronic and paper records and will be used by DoD components
and offices to maintain records about individuals in support of the
Counterintelligence (CI) mission for the Department. DoD is authorized
to maintain records on individuals to protect against espionage,
intelligence activities, sabotage, or assassinations conducted by
foreign entities or international terrorists. CIFS activities support
the following CI missions: countering espionage; countering
international terrorism; and providing support to force protection,
research, development, and acquisition activities. CIFS also include
assessments of CI incidents and DoD-required CI reporting conducted
throughout the DoD enterprise. Not included in this system of records
are records concerning CI investigations or CI collection activities.
The CIFS records contain information on both Federal employees and
members of the public. The CIFS system of records contains data derived
from individuals, government records (Federal, State, and local,
tribal, and foreign) and information collected directly from the
public.
II. Privacy Act Exemption
The Privacy Act allows federal agencies to exempt eligible records
in a system of records from certain provisions of the Act, including
those that provide individuals with a right to request access to and
amendment of their own records. If an agency intends to exempt a
particular system of records, it must first go through the rulemaking
process to provide public notice and an opportunity to comment on the
proposed exemption. This proposed rule explains why exemptions are
being claimed for this system of records and invites public comment,
which DoD will consider before the issuance of a final rule
implementing those exemptions.
The DoD proposes to amend 32 CFR part 310 to add a new Privacy Act
exemption rule for the DoD-0010, ``Counterintelligence Functional
Services'' system of records. In this proposed rulemaking, the
Department proposes to exempt portions of this system of records from
certain provisions of the Privacy Act because information in this
system of records may fall within the scope of the following Privacy
Act exemptions: 5 U.S.C. 552a(k)(1), 5 U.S.C. 552a(k)(2), and 5 U.S.C.
552a(k)(5).
DoD proposes to exempt this system of records because these records
may contain classified national security information and providing
notice, access, amendment, and disclosure of accounting of those
records to an individual, as well as certain record-keeping
requirements, may cause damage to national security. The Privacy Act,
pursuant to 5 U.S.C. 552a(k)(1), authorizes agencies to claim an
exemption for systems of records that contain information properly
classified pursuant to executive order. The DoD therefore is proposing
to claim an exemption from several provisions of the Privacy Act,
including various access, amendment, disclosure of accounting, and
certain record-keeping and notice requirements, to prevent disclosure
of any information properly classified pursuant to executive order, as
implemented by DoD Instruction 5200.01 and DoD Manual 5200.01, Volumes
1 and 3.
The DoD is also proposing this exemption rule because this system
of records may contain investigatory material compiled for law
enforcement purposes within the scope of 5 U.S.C. 552a(k)(2). This
exemption allows DoD entities to claim an exemption for systems of
records that contain
[[Page 37775]]
investigatory materials compiled for law enforcement purposes, other
than material within the scope of 5 U.S.C. 552a(j)(2), which describes
certain material related to the enforcement of criminal laws maintained
by principal-function criminal law enforcement agencies. The Department
therefore is proposing to claim an exemption from several provisions of
the Privacy Act, including various access, amendment, disclosure of
accounting, and certain record-keeping and notice requirements, to
prevent, among other harms, the identification of actual or potential
subjects of investigation and/or sources of investigative information
and to avoid frustrating the underlying law enforcement purpose for
which the records were collected. Finally, the DoD also proposes an
exemption for this system of records because the records may contain
information pertaining to 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, but only to the extent that the
disclosure of such material would reveal the identity of a source who
furnished information to the Government under an express promise of
confidentiality. The Privacy Act, pursuant to 5 U.S.C. 552a(k)(5)
authorizes agencies to claim an exemption for systems of records
containing information identifying confidential sources crucial to
determining suitability for holding positions of trust. Accordingly,
the DoD is proposing to claim an exemption from several provisions of
the Privacy Act, including various access, amendment, disclosure of
accounting, and certain record-keeping and notice requirements, to
prevent the compromise of the identity of confidential sources within
such investigatory material.
Records in this system of records are only exempt from the Privacy
Act to the extent the purposes underlying the exemption pertain to the
record. A notice of a new system of records for DoD-0010,
``Counterintelligence Functional Services,'' is also published in this
issue of the Federal Register.
Regulatory Analysis
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. It has been determined that this proposed rule is not a
significant regulatory action under these executive orders.
Congressional Review Act
This proposed rule is not a ``major rule'' as defined by 5 U.S.C.
804(2).
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)
The Assistant to the Secretary of Defense for Privacy, Civil
Liberties, and Transparency certified that this proposed rule does not
have significant economic impact on a substantial number of small
entities because it is concerned only with the administration of a
Privacy Act system of records within the DoD.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined that this proposed rule does not impose
additional information collection requirements on the public under the
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been determined that this proposed rule 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 it will not significantly or uniquely affect
small governments.
Executive Order 13132, ``Federalism''
It has been determined that this proposed rule does not have
federalism implications. This 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.
Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
Executive Order 13175 establishes certain requirements that an
agency must meet when it promulgates a proposed rule (and subsequent
final rule) that imposes substantial direct compliance costs on one or
more Indian tribes, preempts tribal law, or effects the distribution of
power and responsibilities between the federal government and Indian
tribes. This proposed rule will not have a substantial effect on Indian
tribal governments.
List of Subjects in 32 CFR Part 310
Privacy.
Accordingly, 32 CFR part 310 is proposed to be amended as follows:
PART 310--[AMENDED]
0
1. The authority citation for 32 CFR part 310 continues to read as
follows:
Authority: 5 U.S.C. 552a.
0
2. Section 310.13 is amended by adding paragraph (e)(8) to read as
follows:
Sec. 310.13 Exemptions for DoD-wide systems.
* * * * *
(e) * * *
(8) System identifier and name. DoD-0010, ``Counterintelligence
Functional Services''
(i) Exemptions. This system of records is exempt from 5 U.S.C.
552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I);
and (f) of the Privacy Act.
(ii) Authority. 5 U.S.C. 552a (k)(1), (k)(2), and (k)(5).
(iii) Exemption from the particular subsections. Exemption from the
particular subsections is justified for the following reasons:
(A) Subsections (c)(3), (d)(1), and (d)(2).
(1) Exemption (k)(1). Records in this system of records may contain
information concerning individuals that is properly classified pursuant
to executive order. Application of exemption (k)(1) for such records
may be necessary because access to and amendment of the records, or
release of the accounting of disclosures for such records, could reveal
classified information. Disclosure of classified records to an
individual may cause damage to national security.
(2) Exemption (k)(2). Records in this system of records may contain
investigatory material compiled for law enforcement purposes other than
material within the scope of 5 U.S.C. 552a(j)(2). Application of
exemption (k)(2) may be necessary because access to, amendment of, or
release of the accounting of disclosures of such records could: inform
the record subject of an investigation of the existence, nature, or
scope of an actual or potential law enforcement or disciplinary
investigation, and thereby seriously impede law enforcement or
[[Page 37776]]
prosecutorial efforts by permitting the record subject and other
persons to whom he might disclose the records or the accounting of
records to avoid criminal penalties, civil remedies, or disciplinary
measures; interfere with a civil or administrative action or
investigation by allowing the subject to tamper with witnesses or
evidence, and to avoid detection or apprehension, which may undermine
the entire investigatory process; reveal confidential sources who might
not have otherwise come forward to assist in an investigation and
thereby hinder DoD's ability to obtain information from future
confidential sources; and result in an unwarranted invasion of the
privacy of others. Amendment of such records could also impose a highly
impracticable administrative burden by requiring investigations to be
continuously reinvestigated.
(3) Exemption (k)(5). Records in this system of records may contain
information concerning investigatory material compiled solely for
determining suitability, eligibility, and qualifications for Federal
civilian employment, military service, Federal contracts, or access to
classified information. In some cases, such records may contain
information pertaining to the identity of a source who furnished
information to the Government under an express promise that the
source's identity would be held in confidence (or prior to the
effective date of the Privacy Act, under an implied promise).
Application of exemption (k)(5) may be necessary because access to,
amendment of, or release of the accounting of disclosures of such
records could identify these confidential sources who might not have
otherwise come forward to assist the Government; hinder the
Government's ability to obtain information from future confidential
sources; and result in an unwarranted invasion of the privacy of
others. Amendment of such records could also impose a highly
impracticable administrative burden by requiring investigations to be
continuously reinvestigated.
(B) Subsections (d)(3) and (4). These subsections are inapplicable
to the extent an exemption is claimed from subsections (d)(1) and (2).
(C) Subsection (e)(1). In the collection of information for
investigatory or law enforcement purposes, it is not always possible to
conclusively determine the relevance and necessity of particular
information in the early stages of the investigation or adjudication.
In some instances, it will be only after the collected information is
evaluated in light of other information that its relevance and
necessity for effective investigation and adjudication can be assessed.
Collection of such information permits more informed decision-making by
the Department when making required suitability, eligibility, fitness,
and credentialing determinations. Accordingly, application of
exemptions (k)(1), (k)(2) and (k)(5) may be necessary.
(D) Subsections (e)(4)(G) and (H). These subsections are
inapplicable to the extent exemption is claimed from subsections (d)(1)
and (2). Because portions of this system are exempt from the individual
access and amendment provisions of subsection (d) for the reasons noted
above, DoD is not required to establish requirements, rules, or
procedures with respect to such access or amendment provisions.
Providing notice to individuals with respect to the existence of
records pertaining to them in the system of records or otherwise
setting up procedures pursuant to which individuals may access, view,
and seek to amend records pertaining to themselves in the system would
potentially reveal classified information, undermine investigative
efforts, reveal the identities of witnesses, potential witnesses, and
confidential informants, and impose an undue administrative burden by
requiring investigations to be continually reinvestigated. Accordingly,
application of exemptions (k)(1), (k)(2) and (k)(5) may be necessary.
(E) Subsection (e)(4)(I). To the extent that this provision is
construed to require more detailed disclosure than the broad, general
information currently published in the system notice concerning the
categories of sources of the records in the system, an exemption from
this provision is necessary to protect classified information, other
national security information, and the confidentiality of national
security, law enforcement, and investigatory sources of information,
and to protect the privacy and physical safety of witnesses and
informants. Accordingly, application of exemptions (k)(1), (k)(2) and
(k)(5) may be necessary.
(F) Subsection (f). The agency's rules are inapplicable to those
portions of the system that are exempt. Accordingly, application of
exemptions (k)(1), (k)(2) and (k)(5) may be necessary.
(iv) Exempt records from other systems. In the course of carrying
out the overall purpose for this system, exempt records from other
systems of records may in turn become part of the records maintained in
this system. To the extent that copies of exempt records from those
other systems of records are maintained in this system, the DoD claims
the same exemptions for the records from those other systems that are
entered into this system, as claimed for the prior system(s) of which
they are a part, provided the reason for the exemption remains valid
and necessary.
* * * * *
Dated: June 21, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2022-13572 Filed 6-23-22; 8:45 am]
BILLING CODE 5001-06-P
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