[Federal Register Volume 79, Number 210 (Thursday, October 30, 2014)]
[Rules and Regulations]
[Pages 64507-64509]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-25833]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 311

[Docket ID: DoD-2014-OS-0126]


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 DPFPA 05, entitled ``Computer Aided Dispatch and 
Records Management System (CAD/RMS),'' pertaining to investigatory 
material compiled for law enforcement purposes (under (j)(2) of the 
Act) to enable OSD to conduct certain investigations and relay law 
enforcement information without compromise of the information, and 
protect investigative techniques and efforts employed, as well as 
investigatory material compiled for law enforcement purposes (under 
(k)(2) of the Act), other than material within the scope of subsection 
(k)(2) of the Privacy Act to enable the protection of identities of 
confidential sources who might not otherwise come forward and who 
furnished information under an express promise that the sources' 
identity would be held in confidence. The exemption will allow DoD to 
provide protection against notification of investigatory material 
including certain reciprocal investigations 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. Further, requiring OSD 
to grant access to records and amend these records would unfairly 
impede the investigation of allegations of unlawful activities. To 
require OSD to confirm or deny the existence of a record pertaining to 
a requesting individual may in itself provide an answer to that 
individual relating to an on-going investigation. The investigation of 
possible unlawful activities would be jeopardized by agency rules 
requiring verification of

[[Page 64508]]

record, disclosure of the record to the subject, and record amendment 
procedures.

DATES: This rule will be effective on January 8, 2015 unless adverse 
comments are received by December 29, 2014. If adverse comment is 
received, the Department of Defense 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, 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: Ms. Cindy Allard at (571) 372-0461.

SUPPLEMENTARY INFORMATION: 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 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.

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 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.

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)

    It has been certified that this rule will not have a 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 95-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    This 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''

    It has been determined that this rule 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 it will not significantly or uniquely affect 
small governments.

Executive Order 13132, ``Federalism''

    It has been determined that this 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. Therefore, no 
Federalism assessment is required.

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:  5 U.S.C. 522a.


0
2. Section 311.8 is amended by adding paragraph (c)(22) to read as 
follows:


Sec.  311.8  Procedures for exemptions.

* * * * *
    (c) * * *
    (22) System identifier and name: DPFPA 05, Computer Aided Dispatch 
and Records Management System (CAD/RMS).
    (i) Exemptions: Portions of this system that fall within 5 U.S.C. 
552a(j)(2) and/or (k)(2) are exempt from the following provisions of 5 
U.S.C. 552a, section (c)(3) and (4); (d); (e)(1) through (e)(3); 
(e)(4)(G) through (I); (e)(5); (e)(8); (f) and (g) of the Act, as 
applicable.
    (ii) Authority: 5 U.S.C. 552a(j)(2) and (k)(2).
    (iii) Reasons: (A) From subsections (c)(3) and (4) because making 
available to a record subject the accounting of disclosure from records 
concerning him or her would specifically reveal any investigative 
interest in the individual. Revealing this information could reasonably 
be expected to compromise ongoing efforts to investigate a known or 
suspected offender by notifying the record subject that he or she is 
under investigation. This information could also permit the record 
subject to take measures to impede the investigation, e.g., destroy 
evidence, intimidate potential witnesses, or flee the area to avoid or 
impede the investigation.
    (B) From subsection (d) because these provisions concern individual 
access to and amendment of certain records contained in this system, 
including law enforcement and investigatory 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 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

[[Page 64509]]

testimony, and/or flight of the subject; could identify a confidential 
source or disclose information which would constitute an unwarranted 
invasion of another's personal privacy; reveal a sensitive 
investigative 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 law enforcement 
investigations and analysis activities and impose an excessive 
administrative burden by requiring investigations, analyses, and 
reports to be continuously reinvestigated and revised.
    (C) From subsections (e)(1) through (e)(3) because it is not always 
possible to determine what information is relevant and necessary at an 
early stage in a given investigation. Also, because DoD and other 
agencies may not always know what information about a known or 
suspected offender may be relevant to law enforcement for the purpose 
of conducting an operational response.
    (D) From subsections (e)(4)(G) through (I) (Agency Requirements) 
because portions of this system are exempt from the access and 
amendment provisions of subsection (d).
    (E) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the criminal investigative process. 
It is the nature of criminal 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 
significant as further investigation brings new details to light.
    (F) From subsection (e)(8) because the requirement to serve notice 
on an individual when a record is disclosed under compulsory legal 
process could unfairly hamper law enforcement processes. It is the 
nature of law enforcement that there are instances where 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; 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.
    (G) From subsection (f) because requiring the Agency to grant 
access to records and establishing agency rules for amendment of 
records would compromise the existence of any criminal, civil, or 
administrative enforcement activity. To require the confirmation or 
denial of the existence of a record pertaining to a requesting 
individual may in itself provide an answer to that individual relating 
to the existence of an on-going investigation. The investigation of 
possible unlawful activities would be jeopardized by agency rules 
requiring verification of the record, disclosure of the record to the 
subject, and record amendment procedures.
    (H) From subsection (g) for compatibility with the exemption 
claimed from subsection (f), the civil remedies provisions of 
subsection (g) must be suspended for this record system. Because of the 
nature of criminal investigations, standards of accuracy, relevance, 
timeliness and completeness cannot apply to this record system. 
Information gathered in criminal investigations if often fragmentary 
and leads relating to an individual in the context of one investigation 
may instead pertain to a second investigation.

    Dated: October 27, 2014.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2014-25833 Filed 10-29-14; 8:45 am]
BILLING CODE 5001-06-P