[Federal Register Volume 74, Number 208 (Thursday, October 29, 2009)]
[Rules and Regulations]
[Pages 55784-55785]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26032]


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DEPARTMENT OF DEFENSE

Department of the Air Force

[Docket ID: USAF-2009-0009]

32 CFR Part 806b


Privacy Act; Implementation

AGENCY: Department of Air Force, DoD.

ACTION: Final rule with request for comments.

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SUMMARY: The Department of Air Force is updating the Department of Air 
Force Privacy Act Program Rules, 32 CFR part 806b, by adding the (k)(2) 
exemption to accurately describe the basis for exempting the records. 
The Privacy Act system of records notice, F051 AFJA E, entitled ``Judge 
Advocate General's Professional Conduct Files'', has already been 
published on December 31, 2008 (73 FR 80372).

DATES: The rule will be effective on December 28, 2009 unless comments 
are received that would result in a contrary determination. Comments 
will be accepted on or before December 28, 2009.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods.
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.

[[Page 55785]]

     Mail: Federal Docket management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Intructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (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 http://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Mr. Kenneth Brodie at (703) 696-7557.

SUPPLEMENTARY INFORMATION: 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 Privacy Act rules for the Department of 
Defense do 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 and that such 
rulemaking will not significantly or uniquely affect small governments.

Executive Order 13132, ``Federalism''

    It has been determined that 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 806b

    Privacy.


0
Accordingly, 32 CFR part 806b is amended as follows:

PART 806b--PRIVACY ACT PROGRAM

0
1. The authority citation for 32 CFR part 806b continues to read as 
follows:

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

0
2. Paragraph (e) of Appendix D to 32 CFR part 806b is amended by adding 
paragraph (22) to read as follows:

Appendix D to Part 806b--General and Specific Exemptions

* * * * *
    (22) System identifier and name: F051 AFJA E, Judge Advocate 
General's Professional Conduct Files.
    (i) Exemption: Investigatory material compiled for law 
enforcement purposes, other than material within the scope of 
subsection 5 U.S.C. 552a(j)(2), may be exempt pursuant to 5 U.S.C. 
552a(k)(2). However, if an individual is denied any right, 
privilege, or benefit for which he would otherwise be entitled by 
Federal law, as a result of the maintenance of the information, the 
individual will be provided access to the information except to the 
extent that disclosure would reveal the identity of a confidential 
source. Note: When claimed, this exemption allows limited protection 
of investigative reports maintained in a system of records used in 
personnel or administrative actions. Any portion of this system of 
records which falls within the provisions of 5 U.S.C. 552a(k)(2) may 
be exempt from the following subsections of 5 U.S.C. 552a(c)(3), 
(d), (e)(1), (e)(4)(G), (H), and (I), and (f).
    (ii) Authority: 5 U.S.C. 552a(k)(2).
    (iii) Reasons: (A) From subsection (c)(3) because to grant 
access to the accounting for each disclosure as required by the 
Privacy Act, including the date, nature, and purpose of each 
disclosure and the identity of the recipient, could alert the 
subject to the existence of the investigation. This could seriously 
compromise case preparation by prematurely revealing its existence 
and nature; compromise or interfere with witnesses or make witnesses 
reluctant to cooperate; and lead to suppression, alteration, or 
destruction of evidence.
    (B) From subsections (d) and (f) because providing access to 
investigative records 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; enable individuals to conceal their 
wrongdoing or mislead the course of the investigation; 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.
    (C) From subsection (e)(1) because it is not always possible to 
detect the relevance or necessity of each piece of information in 
the early stages of an investigation. In some cases, it is only 
after the information is evaluated in light of other evidence that 
its relevance and necessity will be clear.
    (D) From subsections (e)(4)(G) and (H) because this system of 
records is compiled for investigative purposes and is exempt from 
the access provisions of subsections (d) and (f).
    (E) From subsection (e)(4)(I) because 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 privacy and 
physical safety of witnesses and informants.
* * * * *

    Dated: October 7, 2009.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E9-26032 Filed 10-28-09; 8:45 am]
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