[Federal Register Volume 76, Number 212 (Wednesday, November 2, 2011)]
[Rules and Regulations]
[Pages 67599-67600]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-28442]


=======================================================================
-----------------------------------------------------------------------

OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

32 CFR Part 1701


Privacy Act of 1974: Implementation

AGENCY: Office of the Director of National Intelligence.

ACTION: Final rule.

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

SUMMARY: The Office of the Director of National Intelligence (ODNI) is 
issuing a final rule exempting six new systems of records from certain 
provisions of the Privacy Act. In addition, the ODNI invokes a 
subsection of the Privacy Act as an additional basis for exempting 
records in ODNI/OIG-003 (Office of Inspector General Investigation and 
Interview Records, published in the Federal Register on Dec. 28, 2007) 
from these provisions of the Act.

DATES: This final rule is effective November 2, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. John F. Hackett, Chief, 
Information Management Group, (703) 874-8085.

SUPPLEMENTARY INFORMATION:

Background

    On July 19, 2011, the Office of the Director of National 
Intelligence (ODNI) published notice of the following new systems of 
records: Human Resources Records (ODNI-16); Personnel Security Records 
(ODNI-17); Freedom of Information Act, Privacy Act and Mandatory 
Declassification Review Request Records (ODNI-18); IT Systems Activity 
and Access Records (ODNI-19); Security Clearance Reciprocity Hotline 
Records (ODNI-20); and IT Network Support, Administration and Analysis 
Records (21). These systems of records contain records that range from 
Unclassified to Top Secret. In conjunction with publication of these 
systems notices, the ODNI initiated a rulemaking to exempt the systems 
of records, in relevant part, from subsections (c)(3); (d)(1), (2), 
(3), (4); (e)(1) and (e)(4)(G), (H),(I); and (f) of the Privacy Act 
pursuant to exemption authority afforded agency heads by subsection (k) 
of the Privacy Act. The systems notices and proposed exemption rule are 
published at 76 FR 42737 and 43629. The enumerated exemptions will be 
invoked on a case-by-case basis, as necessary to preclude interference 
with investigatory, intelligence and counterterrorism functions and 
responsibilities of the ODNI.

Public Comments

    ODNI received a single comment on its proposed rule and six new 
systems of records notices. ODNI has determined that the comment 
received does not warrant modifying the proposed exemptions or the 
systems notices prior to implementation.

Regulatory Flexibility Act

    This rule affects only the manner in which ODNI collects and 
maintains information about individuals. ODNI certifies that this 
rulemaking does not impact small entities and that analysis under the 
Regulatory Flexibility Act, 5 U.S.C. 601-612, is not required.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires the ODNI to comply with small entity requests for 
information and advice about compliance with statutes and regulations 
within the ODNI jurisdiction. Any small entity that has a question 
regarding this document may address it to the information contact 
listed above. Further information regarding SBREFA is available on the 
Small Business Administration's Web page at http://www.sba.gov/advo/laws/law-lib.html.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 944 U.S.C. 3507(d)) requires 
that the ODNI consider the impact of paperwork and other burdens 
imposed on the public associated with the collection of information. 
There are no information collection requirements associated with this 
rule and therefore no analysis of burden is required.

Executive Order 12866, Regulatory Planning and Review

    This rule is not a ``significant regulatory action,'' within the 
meaning of Executive Order 12866. This rule will not adversely affect 
the economy or a sector of the economy in a material way; will not 
create inconsistency with or interfere with other agency action; will 
not materially alter the budgetary impact of entitlements, grants, fees 
or loans or the right and obligations of recipients thereof; or raise 
legal or policy issues arising out of legal mandates, the President's 
priorities or the principles set forth in the Executive Order. 
Accordingly, further regulatory evaluation is not required.

Unfunded Mandates

    Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public 
Law 104-4, 109 Stat. 48 (Mar. 22, 1995), requires Federal agencies to 
assess the effects of certain regulatory actions on State, local and 
tribal governments, and the private sector. This rule imposes no 
Federal mandate on any State, local or tribal government or on the 
private sector. Accordingly, no UMRA analysis of economic and 
regulatory alternatives is required.

Executive Order 13132, Federalism

    Executive Order 13132 requires agencies to examine the implications 
for the distribution of power and responsibilities among the various 
levels of government resulting from their rules. ODNI concludes that 
this rule does not affect the rights, roles and responsibilities of the 
States, involves no preemption of State law and does not limit state 
policymaking discretion. This rule has no federalism implications as 
defined by the Executive Order.

Environmental Impact

    This rulemaking will not have a significant effect on the human 
environment under the provisions of the National Environmental Policy 
Act of 1969 (NEPA), 42 U.S.C. 4321-4347.

Energy Impact

    This rulemaking is not a major regulatory action under the 
provisions of the Energy Policy and Conservation Act (EPCA), Public Law 
94-163) as amended, 42 U.S.C. 6362.

[[Page 67600]]

List of Subjects in 32 CFR Part 1701

    Privacy, Reporting and recordkeeping requirements.

    For the reasons set forth above, ODNI amends 32 CFR Part 1701 as 
follows:

PART 1701--ADMINISTRATION OF RECORDS UNDER THE PRIVACY ACT OF 1974

0
1. The authority citation for part 1701 continues to read as follows:

    Authority: 50 U.S.C. 401-442; 5 U.S.C. 552a.

Subpart B--[Amended]

0
2. Amend Sec.  1701.24 by revising paragraph (a) introductory text, and 
adding paragraphs (a)(15) through (a)(20), and (b)(7) through (b)(12), 
to read as follows:


Sec.  1701.24  Exemption of Office of the Director of National 
Intelligence (ODNI) systems of records.

    (a) The ODNI exempts the following systems of records from the 
requirements of subsections (c)(3); (d)(1),(2),(3) and (4); (e)(1); 
(e)(4)(G),(H),(I); and (f) of the Privacy Act to the extent that 
information in the system is subject to exemption pursuant subsections 
(k)(1), (k)(2) or (k)(5) of the Act as noted in the individual new 
systems notices and in the existing system notice entitled Office of 
Inspector General Investigation and Interview Records (ODNI/OIG-003), 
published at 72 FR 37902 (December 28, 2007):
* * * * *
    (15) Human Resources Records (ODNI-16).
    (16) Personnel Security Records (ODNI-17).
    (17) Freedom of Information Act, Privacy Act and Mandatory 
Declassification Review Requests Records (ODNI-18).
    (18) IT Systems Activity and Access Records (ODNI-19).
    (19) Security Clearance Reciprocity Hotline Records (ODNI-20).
    (20) IT Network Support, Administration and Analysis Records (ODNI-
21).
    (b) * * *
    (7) From subsection (c)(3) (accounting of disclosures) because an 
accounting of disclosures from records concerning the record subject 
would specifically reveal an intelligence or investigative interest on 
the part of the ODNI or recipient agency and could result in release of 
properly classified national security or foreign policy information.
    (8) From subsections (d)(1), (2), (3) and (4) (record subject's 
right to access and amend records) because affording access and 
amendment rights could alert the record subject to the investigative 
interest of intelligence or law enforcement agencies or compromise 
sensitive information classified in the interest of national security. 
In the absence of a national security basis for exemption, records in 
this system may be exempted from access and amendment to the extent 
necessary to honor promises of confidentiality to persons providing 
information concerning a candidate for position. Inability to maintain 
such confidentiality would restrict the free flow of information vital 
to a determination of a candidate's qualifications and suitability.
    (9) From subsection (e) (1) (maintain only relevant and necessary 
records) because it is not always possible to establish relevance and 
necessity before all information is considered and evaluated in 
relation to an intelligence concern. In the absence of a national 
security basis for exemption under subsection (k)(1), records in this 
system may be exempted from the relevance requirement pursuant to 
subsection (k)(5) because it is not possible to determine in advance 
what exact information may assist in determining the qualifications and 
suitability of a candidate for position. Seemingly irrelevant details, 
when combined with other data, can provide a useful composite for 
determining whether a candidate should be appointed.
    (10) From subsections (e)(4)(G) and (H) (publication of procedures 
for notifying subjects of the existence of records about them and how 
they may access records and contest contents) because the system is 
exempted from subsection (d) provisions regarding access and amendment, 
and from the subsection (f) requirement to promulgate agency rules. 
Nevertheless, the ODNI has published notice concerning notification, 
access, and contest procedures because it may in certain circumstances 
determine it appropriate to provide subjects access to all or a portion 
of the records about them in a system of records.
    (11) From subsection (e)(4)(I) (identifying sources of records in 
the system of records) because identifying sources could result in 
disclosure of properly classified national defense or foreign policy 
information, intelligence sources and methods, and investigatory 
techniques and procedures. Notwithstanding its proposed exemption from 
this requirement, ODNI identifies record sources in broad categories 
sufficient to provide general notice of the origins of the information 
it maintains in its systems of records.
    (12) From subsection (f) (agency rules for notifying subjects to 
the existence of records about them, for accessing and amending 
records, and for assessing fees) because the system is exempt from 
subsection (d) provisions regarding access and amendment of records by 
record subjects. Nevertheless, the ODNI has published agency rules 
concerning notification of a subject in response to his request if any 
system of records named by the subject contains a record pertaining to 
him and procedures by which the subject may access or amend the 
records. Notwithstanding exemption, the ODNI may determine it 
appropriate to satisfy a record subject's access request.

    Dated: October 19, 2011.
Mark W. Ewing,
Chief Management Officer.
[FR Doc. 2011-28442 Filed 11-1-11; 8:45 am]
BILLING CODE P