[Federal Register Volume 78, Number 105 (Friday, May 31, 2013)]
[Rules and Regulations]
[Pages 32554-32556]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-12741]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 320

[Docket ID: DoD-2013-OS-0122]


Privacy Act; Implementation

AGENCY: National Geospatial-Intelligence Agency (NGA), DoD.

ACTION: Direct final rule.

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SUMMARY: National Geospatial-Intelligence Agency (NGA) is proposing to 
update the NGA Privacy Act Program by adding the (j)(2) and (k)(2) 
exemptions to accurately describe the basis for exempting the records 
in the system of records notice NGA-004, NGA Threat Mitigation Records. 
In addition, exempt materials from JUSTICE/FBI-019 Terrorist Screening 
Records System may become part of the case records in this system of 
records. To the extent that copies of exempt records from JUSTICE/FBI-
019, Terrorist Screening Records System are entered into these Threat 
Mitigation case records, NGA hereby claims the same exemptions for the 
records as claimed in JUSTICE/FBI-019, Terrorist Screening Records 
system of records of which they are a part.

DATES: This direct final rule is effective on July 30, 2013. Comments 
due on or before July 1, 2013. If adverse comments are received, DOD 
will publish a timely withdrawal of the rule in the Federal Register.

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, 4800 Mark Center 
Drive; East Tower, 2nd Floor, Suite 02G09, Alexandria, VA 22350-3100.
    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: National Geospatial-Intelligence 
Agency (NGA), ATTN: Security Specialist, Mission Support, MSRS P-12, 
7500 GEOINT Drive, Springfield, VA 22150.

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 changes dealing with DoD's management of 
its Privacy Programs. 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.

Background

    This direct final rule makes changes to the National Geospatial-
Intelligence Agency (NGA) Program rules. These changes will allow the 
Department to add exemption rules to the NGA Privacy Program rules that 
will exempt applicable Department records and/or material from certain 
portions of the Privacy Act. This will improve the efficiency and 
effectiveness of DoD's program by ensuring the integrity of the 
security and counterintelligence records by the National Geospatial-
Intelligence Agency and the Department of Defense.
    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.
    In 2008, the United States Congress passed legislation that 
obligated the Secretary of Defense to develop access

[[Page 32555]]

standards for individuals entering military installations. The 
Department of Defense (DoD) developed a visitor database to manage 
multiple criminal and security sensitive databases that are capable of 
identifying individuals seeking access to DoD installations who are 
believed to be criminal and security threats. The purpose of the 
vetting database is to screen individuals wishing to enter a DoD 
facility, to include those who have been previously given authority to 
access DoD installations, against the the Terrorist Screening Records. 
These records have properly documented exemption rules and to the 
extent that copies of exempt records are a part of the NGA Threat 
Mitigation Records, NGA hereby claims the same exemptions for the 
records as claimed in JUSTICE/FBI-019, Terrorist Screening Records of 
which they are a part.

Regulatory Procedures

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

    It has been determined that this rule is not a significant rule. 
This rule does 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)

    This rule will 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. A Regulatory Flexibility Analysis is not 
required.

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

    This direct final rule does not contain any information collection 
requirements subject to the Paperwork Reduction Act of 1995 (44 U.S.C. 
3501 et seq.).

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

    These amendments 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 will 
not significantly or uniquely affect small governments.

Executive Order 13132, ``Federalism''

    Executive Order 13132 requires regulations be reviewed for 
Federalism effects on the institutional interest of states and local 
governments, and if the effects are sufficiently substantial, 
preparation of the Federal assessment is required to assist senior 
policy makers. The amendments will not have any substantial direct 
effects on state and local governments within the meaning of the EO. 
Therefore, no Federalism assessment is required.

List of Subjects in 32 CFR Part 320

    Privacy.

    Accordingly, 32 CFR part 320 is amended as follows:

PART 320--NATIONAL GEOSPATIAL--INTELLIGENCE AGENCY (NGA)

0
1. The authority citation for 32 CFR part 320 continues to read as 
follows:

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


0
2. In Sec.  320.12, add paragraph (c) to read as follows:


Sec.  320.12  Exemptions.

* * * * *
    (c) System identifier and name: NGA-004, NGA Threat Mitigation 
Records.
    (1) Exemptions: Exempt materials from JUSTICE/FBI-019 Terrorist 
Screening Records System may become part of the case records in this 
system of records. To the extent that copies of exempt records from 
JUSTICE/FBI-019, Terrorist Screening Records System are entered into 
these Threat Mitigation case records, NGA hereby claims the same 
exemptions (j)(2) and (k)(2), for the records as claimed in JUSTICE/
FBI-019, Terrorist Screening Records system of records of which they 
are a part.
    (2) Authority: 5 U.S.C. 552a(j)(2) and (k)(2).
    (3) Reasons: (i)Pursuant to 5 U.S.C. 552a(j)(2) and (k)(2), NGA is 
claiming the following exemptions for certain records within the Threat 
Mitigation Records system: 5 U.S.C. 552a(c)(3) and (4); (d)(1), (2), 
(3), and (4); (e)(1), (2), (3), (4)(G) through (I), (5), and (8); (f), 
and (g).
    (ii) In addition to records under the control of NGA, the Threat 
Mitigation system of records may include records originating from 
systems of records of other law enforcement and intelligence agencies 
which may be exempt from certain provisions of the Privacy Act. 
However, NGA does not assert exemption to any provisions of the Privacy 
Act with respect to information submitted by or on behalf of 
individuals.
    (iii) To the extent the Threat Mitigation system contains records 
originating from other systems of records, NGA will rely on the 
exemptions claimed for those records in the originating system of 
records. Exemptions for certain records within the Threat Mitigation 
system from particular subsections of the Privacy Act are justified for 
the following reasons:
    (A) From subsection (c)(3) (Accounting for Disclosures) because 
giving a record subject access to the accounting of disclosures from 
records concerning him or her could reveal investigative interest on 
the part of the recipient agency that obtained the record pursuant to a 
routine use. Disclosure of the accounting could therefore present a 
serious impediment to law enforcement efforts on the part of the 
recipient agency because the individual who is the subject of the 
record would learn of third agency investigative interests and could 
take steps to evade detection or apprehension. Disclosure of the 
accounting also could reveal the details of watch list matching 
measures under the Threat Mitigation system, as well as capabilities 
and vulnerabilities of the watch list matching process, the release of 
which could permit an individual to evade future detection and thereby 
impede efforts to ensure security.
    (B) From subsection (c)(4) because portions of this system are 
exempt from the access and amendment provisions of subsection (d).
    (C) From subsections (d)(1), (2), (3), and (4) because these 
provisions concern individual access to and amendment of certain 
records contained in this system, including law enforcement 
counterterrorism, investigatory and intelligence records. Compliance 
with these provisions could alert the subject of an investigation of 
the fact and nature of the investigation, and/or the investigative 
interest of intelligence or law enforcement agencies; compromise 
sensitive information related to national security; interfere with the 
overall law enforcement process by leading to the destruction of 
evidence, improper influencing of witnesses, fabrication of testimony, 
and/or flight of the subject; identify a confidential source or

[[Page 32556]]

disclose information which would constitute an unwarranted invasion of 
another's personal privacy; reveal a sensitive investigative or 
intelligence technique; or constitute a potential danger to the health 
or safety of law enforcement personnel, confidential informants, and 
witnesses. Amendment of these records would interfere with ongoing 
counterterrorism, law enforcement, or intelligence investigations and 
analysis activities and impose an impossible administrative burden by 
requiring investigations, analyses, and reports to be continuously 
reinvestigated and revised.
    (D) From subsection (e)(1) because it is not always possible for 
NGA or other agencies to know in advance what information is both 
relevant and necessary for it to complete an identity comparison 
between individuals and a known or suspected terrorist. In addition, 
because NGA and other agencies may not always know what information 
about an encounter with a known or suspected terrorist will be relevant 
to law enforcement for the purpose of conducting an operational 
response.
    (E) From subsection (e)(2) because application of this provision 
could present a serious impediment to counterterrorism, law 
enforcement, or intelligence efforts in that it would put the subject 
of an investigation, study or analysis on notice of that fact, thereby 
permitting the subject to engage in conduct designed to frustrate or 
impede that activity. The nature of counterterrorism, law enforcement, 
or intelligence investigations is such that vital information about an 
individual frequently can be obtained only from other persons who are 
familiar with such individual and his/her activities. In such 
investigations, it is not feasible to rely upon information furnished 
by the individual concerning his own activities.
    (F) From subsection (e)(3), to the extent that this subsection is 
interpreted to require NGA to provide notice to an individual if NGA or 
another agency receives or collects information about that individual 
during an investigation or from a third party. Should the subsection be 
so interpreted, exemption from this provision is necessary to avoid 
impeding counterterrorism, law enforcement, or intelligence efforts by 
putting the subject of an investigation, study or analysis on notice of 
that fact, thereby permitting the subject to engage in conduct intended 
to frustrate or impede that activity.
    (G) From subsections (e)(4)(G) and (H) (Agency Requirements) and 
(f) (Agency Rules), because this system is exempt from the access 
provisions of 5 U.S.C. 552a(d).
    (H) From subsection (e)(5) because many of the records in this 
system coming from other system of records are derived from other 
agency record systems and therefore it is not possible for NGA to 
ensure their compliance with this provision, however, NGA has 
implemented internal quality assurance procedures to ensure that data 
used in the matching process is as thorough, accurate, and current as 
possible. In addition, in the collection of information for law 
enforcement, counterterrorism, and intelligence purposes, it is 
impossible to determine in advance what information is accurate, 
relevant, timely, and complete. With the passage of time, seemingly 
irrelevant or untimely information may acquire new significance as 
further investigation brings new details to light. The restrictions 
imposed by (e)(5) would limit the ability of those agencies' trained 
investigators and intelligence analysts to exercise their judgment in 
conducting investigations and impede the development of intelligence 
necessary for effective law enforcement and counterterrorism efforts. 
However, NGA has implemented internal quality assurance procedures to 
ensure that the data used in the matching process is as thorough, 
accurate, and current as possible.
    (I) From subsection (e)(8) because to require individual notice of 
disclosure of information due to compulsory legal process would pose an 
impossible administrative burden on NGA and other agencies and could 
alert the subjects of counterterrorism, law enforcement, or 
intelligence investigations to the fact of those investigations when 
not previously known.
    (J) From subsection (f) (Agency Rules) because portions of this 
system are exempt from the access and amendment provisions of 
subsection (d).
    (K) From subsection (g) to the extent that the system is exempt 
from other specific subsections of the Privacy Act.

    Dated: May 23, 2013.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2013-12741 Filed 5-30-13; 8:45 am]
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