Rule2023-05378
Privacy Act of 1974; Implementation
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
March 16, 2023
Effective
April 17, 2023
Issuing agencies
Defense Department
Abstract
The Department of Defense (Department or DoD) is issuing a final rule to amend its regulations to exempt portions of the system of records titled CIG-30, "OIG Data Analytics Platform," from certain provisions of the Privacy Act of 1974.
Full Text
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<title>Federal Register, Volume 88 Issue 51 (Thursday, March 16, 2023)</title>
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[Federal Register Volume 88, Number 51 (Thursday, March 16, 2023)]
[Rules and Regulations]
[Pages 16182-16185]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-05378]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DoD-2022-OS-0082]
RIN 0790-AL44
Privacy Act of 1974; Implementation
AGENCY: Office of the Secretary of Defense (OSD), Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: The Department of Defense (Department or DoD) is issuing a
final rule to amend its regulations to exempt portions of the system of
records titled CIG-30, ``OIG Data Analytics Platform,'' from certain
provisions of the Privacy Act of 1974.
DATES: This rule is effective on April 17, 2023.
FOR FURTHER INFORMATION CONTACT: Ms. Rahwa Keleta, 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
[[Page 16183]]
Center Drive, Mailbox #24, Suite 08D09, Alexandria, VA 22350-1700;
<a href="/cdn-cgi/l/email-protection#bef1edfa90faeefdf2eafafed3dfd7d290d3d7d2"><span class="__cf_email__" data-cfemail="b0ffe3f49ef4e0f3fce4f4f0ddd1d9dc9eddd9dc">[email protected]</span></a>; (703) 571-0070.
SUPPLEMENTARY INFORMATION:
Discussion of Comments and Changes
The proposed rule published in the Federal Register on July 20,
2022 (87 FR 43228-43231). Comments were accepted for 60 days until
September 19, 2022. No comments were received. However, DoD is making
one administrative change to Sec. 310.28(c)(10) from the proposed rule
by adding the acronym ``OIG'' to the System identifier and name to
match the system of records notice with the same name that published in
the Federal Register on July 20, 2022 (87 FR 43255-43258).
I. Background
In finalizing this rule, DoD is seeking to exempt portions of this
system of records titled, CIG-30, OIG Data Analytics Platform, from
certain provisions of the Privacy Act. This system of records covers
DoD's maintenance of records about individuals who are subject and/or
associated with a matter involved in DoD Office of the Inspector
General (OIG) audits, evaluations, investigations, and reviews. The
records collected will assist with the performance of audits,
evaluations, investigations, and reviews of DoD programs, functions,
and individuals.
II. Privacy Act Exemption
The Privacy Act permits Federal agencies to exempt eligible records
in a system of records from certain provisions of the Act, including
the provisions providing individuals with a right to request access to
and amendment of their own records and accountings of disclosures of
such 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.
The OSD is amending 32 CFR part 310 to add a new Privacy Act exemption
rule for the CIG-30, ``OIG Data Analytics Platform,'' system of
records. The DoD is adding an exemption for this system of records
pursuant to 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2) because some of its
records may contain investigatory material compiled for law enforcement
purposes and classified national security information.
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 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 Assistant to the Secretary of Defense for Privacy, Civil
Liberties, and Transparency 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 amended as follows:
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.
[[Page 16184]]
0
2. Section 310.28 is amended by adding paragraph (c)(10) to read as
follows:
Sec. 310.28 Office of the Inspector General (OIG) exemptions.
* * * * *
(c) * * *
(10) System identifier and name. CIG-30, ``OIG Data Analytics
Platform.''
(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), (H),
and (I); and (f) of the Privacy Act to the extent the records are
subject to exemption pursuant to 5 U.S.C. 552a(k)(1) and (k)(2).
(ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
(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.
(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), and (k)(2).
(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), and (k)(2) 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 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), (k)(1), and (k)(2) 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), and (k)(2) may be necessary.
(K) Subsection (g). This subsection is inapplicable to the extent
that the
[[Page 16185]]
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: March 13, 2023.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2023-05378 Filed 3-15-23; 8:45 am]
BILLING CODE 5001-06-P
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