Rule2023-20434
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
September 21, 2023
Effective
October 23, 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-16, "Inspector General Administrative Investigation Records," (IGAIR) from certain provisions of the Privacy Act of 1974.
Full Text
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<title>Federal Register, Volume 88 Issue 182 (Thursday, September 21, 2023)</title>
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[Federal Register Volume 88, Number 182 (Thursday, September 21, 2023)]
[Rules and Regulations]
[Pages 65129-65131]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-20434]
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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 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-16, ``Inspector General Administrative Investigation
Records,'' (IGAIR) from certain provisions of the Privacy Act of 1974.
DATES: This rule will be effective on October 23, 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 Center Drive, Mailbox #24, Suite 08D09, Alexandria,
VA 22350-1700; <a href="/cdn-cgi/l/email-protection#4c031f0862081c0f0018080c212d252062212520"><span class="__cf_email__" data-cfemail="3d726e7913796d7e7169797d505c545113505451">[email protected]</span></a>; (703) 571-0070.
SUPPLEMENTARY INFORMATION:
Discussion of Comments and Changes
The proposed rule published in the Federal Register (88 FR 7375-
7378) on February 3, 2023. Comments were accepted for 60 days until
April 4, 2023. One comment was received which stated support for the
exemption rule.
I. Background
In finalizing this rule, OSD is exempting portions of this system
of records titled, CIG-16, ``Inspector General Administrative
Investigation Records,'' from certain provisions of the Privacy Act of
1974. This system contains records of DoD Office of Inspector General
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.
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).
OSD is amending 32 CFR 310.28(c)(4) 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).
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
[[Page 65130]]
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.
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), (k)(2), and (k)(5).
(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,
including 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
[[Page 65131]]
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). Accordingly, application of exemptions (j)(2), (k)(1), (k)(2),
and (k)(5) may be necessary.
(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), (k2), and (k)(5) 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 of records being made
available under compulsory legal process 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: September 15, 2023.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2023-20434 Filed 9-20-23; 8:45 am]
BILLING CODE 5001-06-P
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</html>Indexed from Federal Register on September 21, 2023.
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