[Federal Register Volume 76, Number 78 (Friday, April 22, 2011)]
[Rules and Regulations]
[Pages 22611-22613]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-9745]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 311

[Docket ID: DoD-2011-OS-0004]


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary, DoD.

ACTION: Direct final rule with request for comments.

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SUMMARY: The Office of the Secretary of Defense is exempting those 
records contained in DMDC 12 DoD, entitled ``Joint Personnel 
Adjudication System (JPAS)'', when investigatory material is compiled 
solely for the purpose of determining suitability, eligibility, or 
qualifications for Federal civilian employment, military service, 
Federal contracts, or access to classified information, but only to the 
extent that such material would reveal the identity of a confidential 
source.
    This direct final rule makes nonsubstantive changes to the Office 
of the Secretary Privacy Program rules. These changes will allow the 
Department to add an exemption rule to the Office of the Secretary of 
Defense Privacy Program rules that will exempt applicable Department 
records and/or material from certain portions of the Privacy Act. This 
change will allow the Department to move part of the Department's 
personnel security program records from the Defense Security Service 
Privacy Program to the Office of the Secretary of Defense Privacy 
Program. This direct final rule is consistent with the rule previously 
published at 32 CFR 321.13(h) and another rule is being published to 
remove and reserve 321.13(h). This will improve the efficiency and 
effectiveness of DoD's program by preserving the exempt status of the 
applicable records and/or material when the purposes underlying the 
exemption(s) are valid and necessary.
    This rule is being published as a direct final rule as the 
Department of Defense does not expect to receive any adverse comments, 
and so a proposed rule is unnecessary.

[[Page 22612]]


DATES: The rule will be effective on July 1, 2011 unless comments are 
received that would result in a contrary determination. Comments will 
be accepted on or before June 21, 2011.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Federal Docket Management System Office, 1160 
Defense Pentagon, Washington, DC 20301-1160.
    Instructions: All submissions received must include the agency name 
and docket number 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. Cindy Allard at (703) 588-6830.

SUPPLEMENTARY INFORMATION: 

Direct Final Rule and Significant Adverse Comments

    DoD has determined this rulemaking meets the criteria for a direct 
final rule because it involves nonsubstantive changes dealing with 
DoD's management of its Privacy Progams. DoD expects no opposition to 
the changes and no significant adverse comments. However, if DoD 
receives a significant adverse comment, the Department will withdraw 
this direct final rule by publishing a notice in the Federal Register. 
A significant adverse comment is one that explains: (1) Why the direct 
final rule is inappropriate, including challenges to the rule's 
underlying premise or approach; or (2) why the direct final rule will 
be ineffective or unacceptable without a change. In determining whether 
a comment necessitates withdrawal of this direct final rule, DoD will 
consider whether it warrants a substantive response in a notice and 
comment process.

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory 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 these Executive orders.

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

    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.

Public Law 95-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been determined that Privacy Act rules for the Department of 
Defense impose no additional information collection requirements on the 
public under the Paperwork Reduction Act of 1995.

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

    It has been determined that this 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 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 rule 
does 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.

    Accordingly, 32 CFR part 311 is amended as follows:

PART 311--OFFICE OF THE SECRETARY OF DEFENSE AND JOINT STAFF 
PRIVACY PROGRAM

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

    Authority:  Pub. L. 93-579, 88 Stat. 1986 (5 U.S.C. 522a).


0
2. Section 311.8 is amended by adding paragraph (c)(18) as follows:


Sec.  311.8  Procedures for exemptions.

* * * * *
    (c) * * *
    (18) System identifier and name: DMDC 12 DoD, Joint Personnel 
Adjudication System (JPAS).
    (i) Exemption: Investigatory 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.
    (ii) Authority: 5 U.S.C. 552a(k)(5).
    (iii) Reasons: (A) from subsections (c)(3) and (d) when access to 
accounting disclosure 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 subsection (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. 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.
* * * * *


[[Page 22613]]


    Dated: April 8, 2011.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2011-9745 Filed 4-21-11; 8:45 am]
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