[Federal Register Volume 74, Number 208 (Thursday, October 29, 2009)]
[Rules and Regulations]
[Pages 55781-55782]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-26051]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

[Docket ID: DoD-2009-OS-0006]

32 CFR Part 323


Privacy Act; Implementation

AGENCY: Defense Logistics Agency, DoD.

ACTION: Final rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Defense Logistics Agency (DLA) is updating the DLA Privacy 
Act Program Rules, 32 CFR part 323, by replacing the (k)(2) exemption 
with a (k)(5) exemption to more accurately describe the basis for 
exempting the records. The Privacy Act system of records notice, 
S500.20, entitled ``Defense Logistics Agency Criminal Incident 
Reporting System Records'', has already been published on January 22, 
2009 (74 FR 4006).

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.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Room 3C843, Washington, DC 20301-1160.
    Instructions: 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: Ms. Jody Sinkler at (703) 767-5045.

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

[[Page 55782]]

the States, or on the distribution of power and responsibilities among 
the various levels of government.

List of Subjects in 32 CFR Part 323

    Privacy.

0
Accordingly, 32 CFR part 323 is amended as follows:

PART 323--DLA PRIVACY ACT PROGRAM

0
1. The authority citation for 32 CFR part 323 continues to read as 
follows:

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


0
2. Paragraph (b) of Appendix H to 32 CFR part 323 is revised to read as 
follows:

Appendix H to Part 323--DLA Exemption Rules

* * * * *
    b. ID: S500.20 (Specific exemption).
    1. System name: Defense Logistics Agency Criminal Incident 
Reporting System Records.
    2. Exemption: i. Parts of this system may be exempt pursuant to 
5 U.S.C. 552a(j)(2) if the information is compiled and maintained by 
a component of the agency, which performs as its principal function 
any activity pertaining to the enforcement of criminal laws.
    ii. The specific sections of 5 U.S.C. 552a from which the system 
is to be exempted are 5 U.S.C. 552a(c)(3) and (c)(4), (d), (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (H), and (I), (e)(5), (f), and (g).
    3. Authority: 5 U.S.C. 552a(j)(2).
    4. Reasons: i. From subsection (c)(3) because to grant access to 
an accounting of disclosures 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 or prosecutive interest by DLA or other 
agencies. 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.
    ii. From subsections (c)(4), (d), and (f) because providing 
access to this information could result in the concealment, 
destruction or fabrication of evidence and jeopardize the safety and 
well being of informants, witnesses and their families, and law 
enforcement personnel and their families. Disclosure of this 
information could also reveal and render ineffectual investigative 
techniques, sources, and methods used by this component and could 
result in the invasion of privacy of individuals only incidentally 
related to an investigation. Investigatory material is exempt to the 
extent that the disclosure of such material would reveal the 
identity of a source who furnished the information to the Government 
under an express promise that the identity of the source would be 
held in confidence, or prior to September 27, 1975 under an implied 
promise that the identity of the source would be held in confidence. 
This exemption will protect the identities of certain sources that 
would be otherwise unwilling to provide information to the 
Government. The exemption of the individual's right of access to 
his/her records and the reasons therefor necessitate the exemptions 
of this system of records from the requirements of the other cited 
provisions.
    iii. 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.
    iv. From subsection (e)(2) because collecting information to the 
fullest extent possible directly from the subject individual may or 
may not be practical in a criminal investigation.
    v. From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal 
investigation. The effect would be somewhat adverse to established 
investigative methods and techniques.
    vi. From subsections (e)(4)(G), (H), and (I) because it will 
provide protection against notification of investigatory material 
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). In addition, this system of records 
is exempt from the access provisions of subsection (d).
    vii. From subsection (e)(5) because the requirement that records 
be maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the investigative process. It is 
the nature of law enforcement for investigations to uncover the 
commission of illegal acts at diverse stages. It is frequently 
impossible to determine initially what information is accurate, 
relevant, timely, and least of all complete. With the passage of 
time, seemingly irrelevant or untimely information may acquire new 
significance as further investigation brings new details to light.
    viii. From subsection (f) because the agency's rules are 
inapplicable to those portions of the system that are exempt and 
would place the burden on the agency of either confirming or denying 
the existence of a record pertaining to a requesting individual 
might in itself provide an answer to that individual relating to an 
on-going investigation. The conduct of a successful investigation 
leading to the indictment of a criminal offender precludes the 
applicability of established agency rules relating to verification 
of record, disclosure of the record to the individual and record 
amendment procedures for this record system.
    ix. From subsection (g) because this system of records should be 
exempt to the extent that the civil remedies relate to provisions of 
5 U.S.C. 552a from which this rule exempts the system.
* * * * *

    Dated: October 7, 2009.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. E9-26051 Filed 10-28-09; 8:45 am]
BILLING CODE 5001-06-P