Proposed Rule2023-02191
Privacy Act of 1974; Implementation
Primary source
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Published
February 3, 2023
Issuing agencies
Defense Department
Abstract
The OATSD(PCLT) is giving notice of a proposed rulemaking for an existing component-wide system of records pursuant to the Privacy Act of 1974 titled CIG-16, "Inspector General Administrative Investigation Records," which was modified and reissued on May 31, 2022. In this rulemaking, the Department proposes to amend the existing rule for CIG-16 in order to exempt portions of this system of records from certain provisions of the Privacy Act because of national security and law enforcement requirements; to avoid interference during the conduct of criminal, civil, or administrative actions or investigations; and to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations.
Full Text
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<title>Federal Register, Volume 88 Issue 23 (Friday, February 3, 2023)</title>
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[Federal Register Volume 88, Number 23 (Friday, February 3, 2023)]
[Proposed Rules]
[Pages 7375-7378]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-02191]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DoD-2022-OS-0142]
RIN 0790-AL62
Privacy Act of 1974; Implementation
AGENCY: Office of the Assistant to the Secretary of Defense for
Privacy, Civil Liberties, and Transparency (OATSD(PCLT)), Department of
Defense (DoD).
ACTION: Proposed rule.
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SUMMARY: The OATSD(PCLT) is giving notice of a proposed rulemaking for
an existing component-wide system of records pursuant to the Privacy
Act of 1974 titled CIG-16, ``Inspector General Administrative
Investigation Records,'' which was modified and reissued on May 31,
2022. In this rulemaking, the Department proposes to amend the existing
rule for CIG-16 in order to exempt portions of this system of records
from certain provisions of the Privacy Act because of national security
and law enforcement requirements; to avoid interference during the
conduct of criminal, civil, or administrative actions or
investigations; and to protect the identity of confidential sources
incident to Federal employment, military service, contract, and
security clearance determinations.
DATES: Send comments on or before April 4, 2023.
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, <a href="/cdn-cgi/l/email-protection#a0eff3e48ee4f0e3ecf4e4e0cdc1c9cc8ecdc9cc"><span class="__cf_email__" data-cfemail="c58a9681eb81958689918185a8a4aca9eba8aca9">[email protected]</span></a>;
(703) 571-0070.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, the Office of Inspector
General (OIG) modified and reissued a system of records titled,
``Defense Case Activity Tracking System (D-CATS),'' CIG-16, on May 31,
2022 (87 FR 32391). The system of records was retitled, ``Inspector
General Administrative Investigation Records (IGAIR).'' IGAIR is
critical to the DoD OIG's management and oversight of DoD programs and
activities and is used for managing cases, storing information,
responding to requests for information, and fulfilling mandatory
reporting requirements. This system contains records of DoD OIG mission
activities such as: the identification, referral, and investigation of
DoD Hotline complaints; administrative investigations of both military
and civilian senior officials accused of misconduct; oversight and
investigation of whistleblower reprisal cases against Service members,
DoD contractor employees, and DoD civilian employees (appropriated and
non-appropriated fund); and improper command referrals of Service
member mental health evaluations.
The system consists of both electronic and paper records and will
be used by the OIG to maintain records about individuals who are
subject and/or associated with a matter involved in DoD OIG's oversight
of investigations referenced above.
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 pursuant to 5 U.S.C. 553(b)(1)-(3), (c), and (e). This proposed
rule explains why an exemption is being claimed for this system of
records and invites public comment, which DoD will consider before the
issuance of a final rule implementing the exemption.
The DoD OIG previously published a final rule exempting CIG-16 from
certain provisions of the Privacy Act under 5 U.S.C. 552a(k)(2) and (5)
on June 10, 1992 (57 FR 24547). The OATSD(PCLT) now proposes to modify
32 CFR part 310 to update the existing Privacy Act exemption rule for
CIG-16 to change the system name and to exempt portions of this system
of records from certain provisions of the Privacy Act because
information in this system of records may also fall within the scope of
the following Privacy Act exemptions: 5 U.S.C. 552a(j)(2) and (k)(1).
As referenced in the CIG-16 system of records notice published on May
31, 2022 (87 FR 32391), this rulemaking seeks public comment on (1) the
previously claimed exemption under 5 U.S.C. 552a(j)(2) for which a
rulemaking was not completed and (2) on the addition of an exemption
under
[[Page 7376]]
5 U.S.C. 552a(k)(1). Additionally, this rulemaking seeks public comment
on extending the exemptions claimed under 5 U.S.C. 552a(k)(2) and (5)
to additional requirements of the Privacy Act, specifically, 5 U.S.C.
552a(e)(4)(I), which requires a description of the categories of
sources of records in the system of records notice.
The DoD OIG proposes this exemption because some records may
contain classified national security information, and as a result,
notice, access, amendment, and disclosure (to include accounting for
those records) to an individual, and certain recordkeeping 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 OIG is proposing to claim an
exemption from several provisions of the Privacy Act, including various
access, amendment, disclosure of accounting, and certain recordkeeping
and notice requirements pursuant to 5 U.S.C. 552a(k)(1), 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 OIG also proposes to exempt this system of records because
these records support the conduct of criminal law enforcement
activities, and certain requirements of the Privacy Act may interfere
with the effective execution of these activities, and undermine good
order and discipline. The Privacy Act, pursuant to 5 U.S.C. 552a(j)(2),
authorizes agencies with a principal law enforcement function
pertaining to the enforcement of criminal laws (including activities of
prosecutors, courts, etc.) to claim an exemption for systems of records
that contain information identifying criminal offenders and alleged
offenders, information compiled for the purpose of criminal
investigation, or reports compiled for the purpose of criminal law
enforcement proceedings. Additionally, pursuant to 5 U.S.C. 552a(k)(2),
agencies may exempt a system of records from certain provisions of the
Privacy Act if it contains investigatory material compiled for law
enforcement purposes, other than materials within the scope of 5 U.S.C.
552a(j)(2). The DoD OIG is proposing to claim exemptions from several
provisions of the Privacy Act, including various access, amendment,
disclosure of accounting, and certain recordkeeping and notice
requirements, pursuant to 5 U.S.C. 552a(j)(2) and 552a(k)(2), to
prevent the harms articulated in this rule from occurring.
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 modified system of records for CIG-16 was
published in the Federal Register on May 31, 2022 (87 FR 32391).
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 rule is not a significant
regulatory action under these executive orders.
Congressional Review Act (5 U.S.C. 804(2))
The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. DoD will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States. A
major rule may take effect no earlier than 60 calendar days after
Congress receives the rule report or the rule is published in the
Federal Register, whichever is later. This rule is not a ``major rule''
as defined by 5 U.S.C. 804(2).
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202(a) of the Unfunded Mandates Reform Act of 1995 (UMRA)
(2 U.S.C. 1532(a)) requires agencies to assess anticipated costs and
benefits before issuing any rule whose mandates may result in the
expenditure by State, local, and tribal governments in the aggregate,
or by the private sector, in any one year of $100 million in 1995
dollars, updated annually for inflation. This rule will not mandate any
requirements for State, local, or tribal governments, nor will it
affect private sector costs.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601 et
seq.)
The ATSD(PCLT) has certified that this rule is not subject to the
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) because it would not,
if promulgated, have a significant economic impact on a substantial
number of small entities. This rule is concerned only with the
administration of Privacy Act systems of records within the DoD.
Therefore, the Regulatory Flexibility Act, as amended, does not require
DoD to prepare a regulatory flexibility analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. 3501 et seq.)
The Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.) was
enacted to minimize the paperwork burden for individuals; small
businesses; educational and nonprofit institutions; Federal
contractors; State, local, and tribal governments; and other persons
resulting from the collection of information by or for the Federal
Government. The Act requires agencies obtain approval from the Office
of Management and Budget before using identical questions to collect
information from ten or more persons. This rule does not impose
reporting or recordkeeping requirements on the public.
Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a rule that imposes substantial
direct requirement costs on State and local governments, preempts State
law, or otherwise has federalism implications. This rule will not have
a substantial effect on State and local governments.
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 rule that imposes substantial
direct compliance costs on one or more Indian tribes, preempts tribal
law, or affects the distribution of power and responsibilities between
the Federal government and Indian tribes. This 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:
[[Page 7377]]
PART 310--PROTECTION OF PRIVACY AND ACCESS TO AND AMENDEMENT OF
INDIVIDUAL RECORDS UNDER THE PRIVACY ACT OF 1974
0
1. The authority citation for 32 CFR part 310 continues to read as
follows:
Authority: 5 U.S.C. 552a.
0
2. Section 310.28 is amended by revising paragraph (c)(4) to read as
follows:
Sec. 310.28 Office of the Inspector General (OIG) exemptions.
* * * * *
(c) * * *
(4) System identifier and name. CIG-16, Inspector General
Administrative Investigation Records (IGAIR).
(i) Exemptions. This system of records is exempt from 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1); (e)(2); (e)(3);
(e)(4)(G), (H), and (I); (e)(5); (e)(8); (f) and (g) of the Privacy Act
pursuant to 5 U.S.C. 552a(j)(2). 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) and
(H); and (f) of the Privacy Act to the extent the records are subject
to exemption pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5). This
system of records is also exempt from 5 U.S.C. 552a(e)(4)(I) to the
extent the records are subject to exemption pursuant to 5 U.S.C.
552a(k)(1).
(ii) Authority. 5 U.S.C. 552a(j)(2), (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 (j)(2).
Records in this system of records may contain investigatory material
compiled for criminal law enforcement purposes to include information
identifying criminal offenders and alleged offenders, information
compiled for the purpose of criminal investigation, or reports compiled
during criminal law enforcement proceedings. Application of exemption
(j)(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 prosecutorial efforts by
permitting the record subject and other persons to whom he might
disclose the records to avoid criminal penalties or disciplinary
measures; 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.
(2) Exemption (k)(1). Records in this system of records may contain
information that is properly classified pursuant to executive order.
Application of exemption (k)(1) 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.
(3) 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
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 which may impede those actions or investigations; 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.
(4) 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) Subsection (c)(4), (d)(3) and (4). These subsections are
inapplicable to the extent that an exemption is being claimed from
subsections (d)(1) and (2). Accordingly, exemption from subsection
(c)(4) is claimed pursuant to (j)(2) and exemptions from subsections
(d)(3) and (d)(4) are claimed pursuant to (j)(2), (k)(1), (k)(2), and
(k)(5).
(C) Subsection (e)(1). In the collection of information for
investigatory and 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 disciplinary and prosecutorial
determinations. Additionally, records within this system may be
properly classified pursuant to executive order. Accordingly,
application of exemptions (j)(2), (k)(1), (k)(2), and (k)(5) may be
necessary.
(D) Subsection (e)(2). To collect information from the subject
individual could serve notice that he or she is the subject of a
criminal investigation and thereby present a serious impediment to such
investigations. Collection of information only from the individual
accused of criminal activity or misconduct could also subvert discovery
of relevant evidence and subvert the course of justice. Accordingly,
application of exemption (j)(2) may be necessary.
(E) Subsection (e)(3). To inform individuals as required by this
subsection could reveal the existence of a criminal investigation and
compromise investigative efforts. Accordingly, application of exemption
(j)(2) may be necessary.
(F) Subsection (e)(4)(G) and (H). These subsections are
inapplicable to the extent exemption is claimed from subsections (d)(1)
and (2).
(G) Subsection (e)(4)(I). To the extent that this provision is
construed to require more detailed disclosure than the broad, generic
information currently
[[Page 7378]]
published in the system notice, an exemption from this provision is
necessary to protect the confidentiality of sources of information and
to protect the privacy and physical safety of witnesses and informants.
Accordingly, application of exemptions (j)(2) and (k)(1) may be
necessary.
(H) Subsection (e)(5). It is often impossible to determine in
advance if investigatory records contained in this system are accurate,
relevant, timely and complete, but, in the interests of effective law
enforcement, it is necessary to retain this information to maintain an
accurate record of the investigatory activity to preserve the integrity
of the investigation and satisfy various Constitutional and evidentiary
requirements, such as mandatory disclosure of potentially exculpatory
information in the investigative file to a defendant. It is also
necessary to retain this information to aid in establishing patterns of
activity and provide investigative leads. With the passage of time,
seemingly irrelevant or untimely information may acquire new
significance as further investigation brings new details to light and
the accuracy of such information can only be determined through
judicial processes. Accordingly, application of exemption (j)(2) may be
necessary.
(I) Subsection (e)(8). To serve notice could give persons
sufficient warning to evade investigative efforts. Accordingly,
application of exemption (j)(2) may be necessary.
(J) Subsection (f). The agency's rules are inapplicable to those
portions of the system that are exempt. Accordingly, application of
exemptions (j)(2), (k)(1), (k)(2) and (k)(5) may be necessary.
(K) Subsection (g). This subsection is inapplicable to the extent
that the system is exempt from other specific subsections of the
Privacy Act. Accordingly, an exemption from subsection (g) is claimed
pursuant to (j)(2).
(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: January 30, 2023.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2023-02191 Filed 2-2-23; 8:45 am]
BILLING CODE 5001-06-P
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