[Federal Register Volume 68, Number 90 (Friday, May 9, 2003)]
[Rules and Regulations]
[Pages 24880-24881]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-11574]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 311

[Administrative Instruction 81]


Privacy Act; Implementation

AGENCY: Office of the Secretary of Defense, DoD.

ACTION: Final rule.

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SUMMARY: The Office of the Secretary of Defense is exempting a system 
of records in its inventory of systems of records pursuant to the 
Privacy Act of 1974 (5 U.S.C. 552a), as amended.

EFFECTIVE DATE: January 28, 2003.

FOR FURTHER INFORMATION CONTACT: Mr. Dan Cragg at (703) 601-4722.

SUPPLEMENTARY INFORMATION: The proposed rule was published on November 
29, 2002, at 67 FR 71119-71120. One comment was received which has 
prompted a change in the final rule. The rule, as changed, is being 
adopted as final.
    One public comment was received where the commenter expressed 
concern that the wording of the proposed rule appears to impute 
criminality to those individuals receiving background checks and 
appears to suspend the rights of those individuals interacting with the 
DoD. We disagree. As provided by law, the rule provides a basis for the 
Department to exempt specified records from certain provisions of the 
Privacy Act. It does not serve as a basis for making judgments 
regarding individuals on whom the Department conducts background 
checks. Neither does it act to suspend any rights the individual may be 
entitiled to under DoD administered programs. The commenter observes 
that the rule is unecessary and redundant. We disagree. The purpose of 
the rule is to preserve and protect the identity of a source who has 
been promised confidentiality in return for the information he or she 
is providing the Department. Because only a specific exemption can be 
claimed for the records, the Department must establish the exemption in 
order to accomplish the desired objective. And finally, the commenter 
expresses the view that the scope of the rule is overly broad. We 
agree. The principal purpose of the claimed exemption is to protect the 
identity of a confidential source. We therefore have revised the rule 
so that the exemption is only being claimed for those provisions of the 
Act that are supportive of the overally purpose of the exemption.

Executive Order 12866, ``Regulatory Planning and Review''

    It has been determined that Privacy Act rules for the Department of 
Defense are not significant rules. The rules do not (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy; a sector of the economy; productivity; 
competition; jobs; the environment; public health or safety; or State, 
local, or tribal governments or communities; (2) Create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another Agency; (3) Materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof; or (4) Raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in this Executive order.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

    It has been determined that Privacy Act rules for the Department of 
Defense do not have significant economic impact on a substantial number 
of small entities because they are concerned only with the 
administration of Privacy Act systems of records within the Department 
of Defense.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been determined that Privacy Act rules for the Department of 
Defense impose 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.

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been determined that the Privacy Act rulemaking for the 
Department of Defense 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

[[Page 24881]]

and that such rulemaking will not significantly or uniquely affect 
small governments.

Executive Order 13132, ``Federalism''

    It has been determined that the Privacy Act rules for the 
Department of Defense do not have federalism implications. The rules do 
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.

List of Subjects in 32 CFR Part 311

    Privacy.

0
Accordingly, 32 CFR part 311 is amended to read as follows:

PART 311--OSD PRIVACY PROGRAM

0
1. The authority citation for 32 CFR part 311 continues to read as 
follows:

    Authority: Pub.L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).


0
2. Section 311.8, is amended by adding paragraph (c)(14) to read as 
follows:


Sec.  311.8  Procedures for exemptions.

* * * * *
    (c) Specific exemptions. * * *
    (14) System identifier and name: DHRA 02, PERSEREC Research Files.
    (i) Exemption: (A) Investigative 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 may be exempt pursuant to 5 U.S.C. 
552a(k)(5), but only to the extent that such material would reveal the 
identity of a confidential source.
    (B) Therefore, portions of this system may be exempt pursuant to 5 
U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C. 
552a(c)(3), (d), and (e)(1).
    (ii) Authority: 5 U.S.C. 552a(k)(5).
    (iii) Reasons: (A) From subsection (c)(3) and (d) when access to 
accounting disclosures and access to or amendment of records would 
cause the identity of a confidential source to be revealed. Disclosure 
of the source's identity not only will result in the Department 
breaching the promise of confidentiality made to the source but it will 
impair the Department's future ability to compile investigatory 
material for the purpose of determining suitability, eligibility, or 
qualifications for Federal civilian employment, Federal contracts, or 
access to classified information. Unless sources can be assured that a 
promise of confidentiality will be honored, they will be less likely to 
provide information considered essential to the Department in making 
the required determinations.
    (B) From (e)(1) because in the collection of information for 
investigatory purposes, it is not always possible to determine the 
relevance and necessity of particular information in the early stages 
of the investigation. In some cases, it is only after the information 
is evaluated in light of other information that its relevance and 
necessity becomes clear. Such information permits more informed 
decision-making by the Department when making required suitability, 
eligibility, and qualification determinations.

    Dated: April 28, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-11574 Filed 5-8-03; 8:45 am]
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