[Federal Register Volume 61, Number 232 (Monday, December 2, 1996)]
[Rules and Regulations]
[Pages 63712-63715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-30535]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 318

[DSWA Instruction 5400.11B]


Privacy Program

AGENCY: Defense Special Weapons Agency, DOD.
ACTION: Final rule.

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SUMMARY: The Defense Special Weapons Agency (DSWA) is revising its 
procedural and exemptions rules for the DSWA Privacy Program.
EFFECTIVE DATE: November 9, 1996.
FOR FURTHER INFORMATION CONTACT: Mrs. Sandy Barker at (703) 325-7681.
SUPPLEMENTARY INFORMATION: The proposed rule was previously published 
on September 9, 1996 at 61 FR 47467. No comments were received, 
therefore, DSWA is adopting the rule as final.
Executive Order 12866. It has been determined that this Privacy Act 
rule for the Department of Defense does not constitute `significant 
regulatory action'. Analysis of the rule indicates that it does not 
have an annual effect on the economy of $100 million or more; does not 
create a serious inconsistency or otherwise interfere with an action 
taken or planned by another agency; does not materially alter the 
budgetary impact of entitlements, grants, user fees, or loan programs 
or the rights and obligations of recipients thereof; does not raise 
novel legal or policy issues arising out of legal mandates, the 
President's priorities, or the principles set forth in Executive Order 
12866 (1993).
Regulatory Flexibility Act. 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.
Paperwork Reduction Act. It has been determined that this Privacy Act 
rule for the Department of Defense imposes no information requirements 
beyond the Department of Defense and that the information collected 
within the Department of Defense is necessary and consistent with 5 
U.S.C. 552a, known as the Privacy Act of 1974.

[[Page 63713]]

List of Subjects in 32 CFR Part 318

    Privacy.
    Accordingly, 32 CFR part 318 is revised as follows:

PART 318-DEFENSE SPECIAL WEAPONS AGENCY PRIVACY PROGRAM

Sec.
318.1 Purpose and scope.
318.2 Applicability.
318.3 Designations and responsibilities.
318.4 Procedures for requests pertaining to individual records in a 
record system.
318.5 Disclosure of requested information to individuals.
318.6 Request for correction or amendment to a record.
318.7 Agency review of request for correction or amendment of 
record.
318.8 Appeal of initial adverse Agency determination for access, 
correction or amendment.
318.9 Exemptions rules.
    Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).


Sec. 318.1  Purpose and scope.

    (a) This rule implements the provisions of the Privacy Act of 1974, 
as amended, and adopts the policies and procedures as set forth by the 
Department of Defense Privacy Program, 32 CFR part 310.
    (b) This rule establishes procedures whereby individuals can:
    (1) Request notification of whether Defense Special Weapons Agency 
(DSWA) maintains or has disclosed a record pertaining to them in any 
nonexempt system of records;
    (2) Request a copy or other access to such a record or to an 
accounting of its disclosure;
    (3) Request that the record be amended; and
    (4) Appeal any initial adverse determination of any such request.
    (c) Specifies those system of records which the Director, 
Headquarters, Defense Special Weapons Agency has determined to be 
exempt from the procedures established by this rule and by certain 
provisions of the Privacy Act.
    (d) DSWA policy encompasses the safeguarding of individual privacy 
from any misuse of DSWA records and the provides the fullest access 
practicable by individuals to DSWA records concerning them.


Sec. 318.2  Applicability.

    The provisions of this rule apply to Headquarters, Defense Special 
Weapons Agency (HQ DSWA), and Field Command, Defense Special Weapons 
Agency (FC DSWA).


Sec. 318.3  Designations and responsibilities.

    (a) The General Counsel, Headquarters, Defense Special Weapons 
Agency, is designated as the Agency Privacy Act Officer.
    (1) The Privacy Act Officer is the principal point of contact for 
privacy matters and is the Agency Initial Denial Authority.
    (2) The Privacy Act Officer is responsible for monitoring and 
ensuring Agency compliance with the DoD Privacy Program in accordance 
with 32 CFR part 310.
    (b) The Director, DSWA, is the Agency Appellate Authority.
    (c) The Director, DSWA is responsible for implementing the Agency 
Privacy Act Program in accordance with the specific requirements of 32 
CFR part 310.
    (d) Agency component and element responsibilities are set forth in 
DSWA Instruction 5400.11B,\1\ January 12, 1995.
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    \1\ Copies may be obtained from Office of General Counsel, 
Headquarters, Defense Special Weapons Agency, Washington, DC 20305-
1000.
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Sec. 318.4  Procedures for requests pertaining to individual records in 
a record system.

    (a) An individual seeking notification of whether a system of 
records, maintained by the Defense Special Weapons Agency, contains a 
record pertaining to himself/herself and who desires to review, have 
copies made of such records, or to be provided an accounting of 
disclosures from such records, shall submit his or her request in 
writing. Requesters are encourage to review the systems of records 
notices published by the Agency so as to specifically identify the 
particular record system(s) of interest to be accessed.
    (b) In addition to meeting the requirements set forth in section 
318.4 of this part, the individual seeking notification, review or 
copies, and an accounting of disclosures will provide in writing his or 
her full name, address, Social Security Number, and a telephone number 
where the requester can be contacted should questions arise concerning 
the request. This information will be used only for the purpose of 
identifying relevant records in response to an individual's inquiry. It 
is further recommended that individuals indicate any present or past 
relationship or affiliations, if any, with the Agency and the 
appropriate dates in order to facilitate a more thorough search. A 
notarized statement or an unsworn declaration in accordance with 28 
U.S.C. 1746 may also be required.
    (c) An individual who wishes to be accompanied by another 
individual when reviewing his or her records, must provide the Agency 
with written consent authorizing the Agency to disclose or discuss such 
records in the presence of the accompanying individual.
    (d) Individuals should mail their written request to the Office of 
General Counsel, Defense Special Weapons Agency, 6801 Telegraph Road, 
Alexandria, VA 22310-3398 or to the office designated in the system 
notice and indicate clearly on the outer envelope `Privacy Act 
Request'.


Sec. 318.5  Disclosure of requested information to individuals.

    (a) The Defense Special Weapons Agency, upon receiving a request 
for notification of the existence of a record or for access to a 
record, shall acknowledge receipt of the request within 10 working 
days.
    (b) Determine whether or not such record exists.
    (c) Determine whether or not such request for access is available 
under the Privacy Act.
    (d) Notify requester of determinations within 30 working days after 
receipt of such request.
    (e) Provide access to information pertaining to that person which 
has been determined to be available within 30 working days.
    (f) Notify the individual if fees will be assessed for reproducing 
copies of the records. Fee schedule and rules for assessing fees are 
contained in section 318.11 of this part.


Sec. 318.6  Request for correction or amendment to a record.

    (a) An individual may request that the Defense Special Weapons 
Agency correct, amend, or expunge any record, or portions thereof, 
pertaining to the requester that he/she believe to be inaccurate, 
irrelevant, untimely, or incomplete.
    (b) Such requests shall specify the particular portions of the 
records in question, be in writing and should be mailed to the Office 
of General Counsel, Defense Special Weapons Agency, 6801 Telegraph 
Road, Alexandria, VA 22310-3398.
    (c) The requester shall provide sufficient information to identify 
the record and furnish material to substantiate the reasons for 
requesting corrections, amendments, or expurgation.


Sec. 318.7  Agency review of request for correction or amendment of 
record.

    (a) The Agency will acknowledge a request for correction or 
amendment within 10 working days of receipt. The acknowledgment will be 
in writing and will indicate the date by which the Agency expects to 
make its initial determination.

[[Page 63714]]

    (b) The Agency shall complete its consideration of requests to 
correct or amend records within 30 working days, and inform the 
requester of its initial determination.
    (c) If it is determined that records should be corrected or amended 
in whole or in part, the Agency shall advise the requester in writing 
of its determination; and correct or amend the records accordingly. The 
Agency shall then advise prior recipients of the records of the fact 
that a correction or amendment was made and provide the substance of 
the change.
    (d) If the Agency determines that a record should not be corrected 
or amended, in whole or in part, as requested by the individual, the 
Agency shall advise the requester in writing of its refusal to correct 
or amend the records and the reasons therefor. The notification will 
inform the requester that the refusal may be appealed administratively 
and will advise the individual of the procedures for such appeals.


Sec. 318.8  Appeal of initial adverse Agency determination for access, 
correction or amendment.

    (a) An individual who disagrees with the denial or partial denial 
of his or her request for access, correction, or amendment of Agency 
records pertaining the himself/herself, may file a request for 
administrative review of such refusal within 30 days after the date of 
notification of the denial or partial denial.
    (b) Such requests shall be made in writing and mailed to the Office 
of the General Counsel, Defense Special Weapons Agency, 6801 Telegraph 
Road, Alexandria, VA 22310-3398.
    (c) The requester shall provide a brief written statement setting 
for the reasons for his or her disagreement with the initial 
determination and provide such additional supporting material as the 
individual feels necessary to justify the appeal.
    (d) Within 30 working days of receipt of the request for review, 
the Agency shall advise the individual of the final disposition of the 
request.
    (e) In those cases where the initial determination is reversed, the 
individual will be so informed and the Agency will take appropriate 
action.
    (f) In those cases where the initial determination is sustained, 
the individual shall be advised:
    (1) In the case of a request for access to a record, of the 
individual's right to seek judicial review of the Agency refusal for 
access.
    (2) In the case of a request to correct or amend the record:
    (i) Of the individual's right to file a concise statement of his or 
her reasons for disagreeing with the Agency's decision in the record,
    (ii) Of the procedures for filing a statement of the disagreement, 
and
    (iii) Of the individual's right to seek judicial review of the 
Agency's refusal to correct or amend a record.


Sec. 318.9  Exemption rules.

    (a) Exemption for classified material.  All systems of records 
maintained by the Defense Special Weapons Agency shall be exempt under 
section (k)(1) of 5 U.S.C. 552a, to the extent that the systems contain 
any information properly classified under E.O. 12598 and that is 
required by that E.O. to be kept secret in the interest of national 
defense or foreign policy. This exemption is applicable to parts of all 
systems of records including those not otherwise specifically 
designated for exemptions herein which contain isolated items of 
properly classified information.
    (b) System identifier and name: HDSWA 007, Security Operations.
    (1) Exemption: Portions of this system of records may be exempt 
from the provisions of 5 U.S.C. 552a(c)(3), (d)(1) through (d)(4), 
(e)(1), (e)(4)(G), (H), (I), and (f).
    (2) Authority: 5 U.S.C. 552a(k)(5).
    (3) Reasons: (i) From subsection (c)(3) because it will enable DSWA 
to safeguard certain investigations and relay law enforcement 
information without compromise of the information, and protect the 
identities of confidential sources who might not otherwise come forward 
and who have 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.)
    (ii) From subsection (d)(1) through (d)(4) and (f) because 
providing access to records of a civil investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of security investigations. 
Providing access rights normally afforded under the Privacy Act would 
provide the subject with valuable information that would allow 
interference with or compromise of witnesses or render witnesses 
reluctant to cooperate; lead to suppression, alteration, or destruction 
of evidence; and result in the secreting of or other disposition of 
assets that would make them difficult or impossible to reach in order 
to satisfy any Government claim growing out of the investigation or 
proceeding.
    (iii) From subsection (e)(1), (e)(4)(G), (H), (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 sources' identity would 
be held in confidence (or prior to the effective date of the Act, under 
an implied promise.)
    (d) System identifier and name: HDSWA 011, Inspector General 
Investigation Files.
    (1) Exemption: Portions of this system of records may be exempt 
from the provisions of 5 U.S.C. 552a(c)(3); (d)(1) through (4); (e)(1); 
(e)(4)(G), (H), and (I); and (f).
    (2) Authority: 5 U.S.C. 552a (k)(2).
    (3) Reasons: (i) From subsection (c)(3) because it will enable DSWA 
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.)
    (ii) From subsection (d)(1) through (d)(4) and (f) because 
providing access to records of a civil investigation and the right to 
contest the contents of those records and force changes to be made to 
the information contained therein would seriously interfere with and 
thwart the orderly and unbiased conduct of the investigation and impede 
case preparation. Providing access rights normally afforded under the 
Privacy Act would provide the subject with valuable information that 
would allow interference with or compromise of witnesses or render 
witnesses reluctant to cooperate; lead to suppression, alteration, or 
destruction of evidence; and result in the secreting of or other 
disposition of assets that would make them difficult or impossible to 
reach in order to satisfy any Government claim growing out of the 
investigation or proceeding.
    (iii) From subsection (e)(1), (e)(4)(G), (H), and (I) because it 
will provide protection against notification of

[[Page 63715]]

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 (or prior to the effective date of 
the Act, under an implied promise).
    Dated: November 25, 1996.

L. M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 96-30535 Filed 11-29-96; 8:45 am]
BILLING CODE 5000-04-F