[Federal Register Volume 83, Number 201 (Wednesday, October 17, 2018)]
[Rules and Regulations]
[Pages 52317-52319]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-22507]



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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2018-OS-0075]


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary of Defense, DoD.

ACTION: Interim final rule.

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SUMMARY: In accordance with the Privacy Act of 1974, the Office of the 
Secretary of Defense is exempting records maintained in a new system of 
records, ``Personnel Vetting Records System,'' DUSDI 02-DoD, from 
certain requirements of the Act.

DATES: This interim final rule is effective October 17, 2018. Comments 
must be received on or before November 16, 2018.

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: Department of Defense, Office of the Chief Management 
Officer, Directorate for Oversight and Compliance, 4800 Mark Center 
Drive, ATTN: Box 24, Suite 08D09, Alexandria, VA 22350-1700.
    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: Cindy Allard, Chief, Defense Privacy, 
Civil Liberties, and Transparency Division, 703-571-0070.

SUPPLEMENTARY INFORMATION: 

Background

    This Privacy Act system contains records that support DoD in 
conducting end-to-end personnel security, suitability, fitness, and 
credentialing processes, including submission of applications and 
questionnaires, investigations, adjudications, and continuous vetting 
activities. DoD developed the information technology capabilities that 
contribute to the Personnel Vetting Records System to support 
background investigation processes pursuant to Executive Order 13467, 
as amended, and Section 925 of the National Defense Authorization Act 
(NDAA) for FY2018.
    The Personnel Vetting Records System integrates information 
technology capabilities to execute the conduct of background 
investigations actions including: Investigations and determinations of 
eligibility for access to classified national security information, 
suitability for federal employment, fitness of contractor personnel to 
perform work for or on behalf of the U.S. Government, and HSPD-12 
determinations for Personal Identity Verification (PIV) to gain logical 
or physical access to government facilities and systems. The Personnel 
Vetting Records System also supports submission of adverse personnel 
information, verification of investigation and adjudicative history and 
status, continuous evaluation, and insider threat detection, 
prevention, and mitigation activities. Records in the information 
systems covered by this system notice may also be used as a management 
tool for statistical analyses; tracking, reporting, and evaluating 
program effectiveness; and conducting research related to personnel 
vetting.
    Pursuant to subsections (k)(1)-(3) and (5)-(7) of the Privacy Act, 
these specific exemptions from subsections (c)(3), (d)(1)-(4), and 
(e)(1) of the Act are necessary to allow the Department to ensure that 
the personnel vetting process functions in a way that fosters 
efficient, fair, and effective identification, investigation, and 
adjudication of information for end-to-end adjudication of the whole 
person. If a process within the personnel vetting program indicates 
adverse action is anticipated, due process is provided to the subject 
of the record prior to a final decision by the Department.

Good Cause for Adoption Without Prior Notice and Comment

    The Department is publishing this rule as an interim final rule in 
order to implement the program in a timely manner consistent with new 
mandates in the National Defense Authorization Act for Fiscal Year 
2018. In accordance with Public Law 115-91, responsibility for the 
vetting of DoD personnel will begin to transfer from the Office of 
Personnel Management (OPM) to the Department of Defense effective 
October 1, 2018. OPM's conduct of background of investigation 
necessitated exemptions for its system of records covering such 
investigations. Similarly, DoD's full, immediate use of the records 
system and associated exemptions to carry out the missions transferred 
from OPM are essential to mitigate the backlog of personnel 
investigations which is preventing tens of thousands of U.S. citizens 
from starting new employment and delaying the identification of issues 
of concern among the existing cleared population which places 
classified information and other personnel at risk. Accordingly, it is 
currently impractical, unnecessary, and contrary to the public interest 
to first publish this exemption rule for notice and comment before its 
implementation.

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.

Executive Order 13771, ``Reducing Regulation and Controlling Regulatory 
Costs''

    This rule is not significant under Executive Order 12866, 
``Regulatory Planning and Review.'' Therefore, the requirements of 
Executive Order 13771 do not apply.

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

    It has been certified that this rule does 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 DoD. A Regulatory Flexibility Analysis is not required.

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

    It has been determined that this rule does not impose additional 
information collection requirements on the public under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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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 federalism 
implications. 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.

List of Subjects in 32 CFR Part 310

    Privacy.

    Accordingly, 32 CFR part 310 is amended as follows:

PART 310--[AMENDED]

0
1. The authority citation for 32 CFR part 310 continues to read as 
follows:

    Authority:  5 U.S.C. 552a.

0
2. Amend Sec.  310.30 by:
0
a. Revising the first sentence of paragraph (b)(1).
0
b. Redesignating paragraph (d) as paragraph (e).
0
c. Revising newly redesignated paragraph (e)(1).
0
d. Designating the undesignated paragraph following paragraph (e)(1) as 
paragraph (e)(1)(i).
0
e. Adding paragraph (e)(1)(ii).
0
f. Further redesignating newly designated paragraph (e)(2) as paragraph 
(d) and adding a heading for newly redesignated paragraph (d).
0
g. Adding a new paragraph (e)(2).
0
h. Further redesignating newly designated paragraphs (e)(3) 
introductory text and (e)(3)(i) through (xii) as paragraphs (e)(1)(iii) 
introductory text and (e)(1)(iii)(A) through (L), respectively, and 
further redesignating newly designated paragraph (e)(4) as paragraph 
(e)(1)(iv).
0
i. Adding headings for newly redesignated paragraphs (e)(1)(iii) and 
(iv).
    The revisions and additions read as follows:


Sec.  310.30  DoD-wide exemptions.

* * * * *
    (b) Promises of confidentiality. (1) Only the identity of sources 
that have been given an express promise of confidentiality may be 
protected from disclosure under this section. * * *
* * * * *
    (d) Exempt records. * * *
    (e) * * *
    (1) System identifier and name. DUSDI 01-DoD ``Department of 
Defense (DoD) Insider Threat Management and Analysis Center (DITMAC) 
and DoD Component Insider Threat Records System.''
    (i) Exemption. This system of records is exempted from subsections 
(c)(3) and (4); (d)(1), (2), (3) and (4); (e)(1), (2), (3), (4)(G)(H) 
and (I), (5) and (8); and (g) of the Privacy Act.
    (ii) Authority. 5 U.S.C. 552a(j)(2) and (k)(1), (2), (3), (5), (6), 
and (7).
    (iii) Exemption from the particular subsections. * * *
    (iv) Exempt records from other systems. * * *
    (2) System identifier and name. DUSDI 02-DoD ``Personnel Vetting 
Records System.''
    (i) Exemption. This system of records is exempted from subsections 
5 U.S.C. 552a(c)(3), (d)(1), (d)(2), (d)(3), (d)(4), and (e)(1) of the 
Privacy Act.
    (ii) Authority. 5 U.S.C. 552a(k)(1), (k)(2), (k)(3), (k)(5), 
(k)(6), and (k)(7).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsections (c)(3), (d)(1), and (d)(2)-(1) Exemption (k)(1). 
Personnel investigations and vetting records may contain information 
properly classified pursuant to Executive Order. Application of 
exemption (k)(1) for such records may be necessary because access to, 
amendment of, or release of the accounting of disclosures of such 
records could disclose classified information that could be detrimental 
to national security.
    (2) Exemption (k)(2). Personnel investigations and vetting records 
may contain investigatory material compiled for law enforcement 
purposes other than material within the scope of 5 U.S.C. 552a(j)(2). 
Application of exemption (k)(2) for such records may be necessary 
because access to, amendment of, or release of the accounting of 
disclosures of such records could: Inform the record subject of an 
investigation of the existence, nature, or scope of an actual or 
potential law enforcement or counterintelligence investigation, and 
thereby seriously impede law enforcement or counterintelligence efforts 
by permitting the record subject and other persons to whom he might 
disclose the records to avoid criminal penalties, civil remedies, or 
counterintelligence measures; interfere with a civil or administrative 
action or investigation which may impede those actions or 
investigations; and result in an unwarranted invasion of the privacy of 
others. Amendment of such records could also impose a highly 
impracticable administrative burden by requiring investigations to be 
continuously reinvestigated.
    (3) Exemption (k)(3). Personnel investigations and vetting records 
may contain information pertaining to providing protective services to 
the President of the United States or other individuals pursuant to 18 
U.S.C. 3056. Application of exemption (k)(3) for such records may be 
necessary because access to, amendment of, or release of the accounting 
of disclosures of such records could compromise the safety of the 
individuals protected pursuant to 18 U.S.C. 3056 and compromise 
protective services provided to the President and other individuals. 
Amendment of such records could also impose a highly impracticable 
administrative burden by requiring investigations to be continuously 
reinvestigated.
    (4) Exemption (k)(5). Personnel investigations and vetting records 
may contain investigatory material compiled solely for determining 
suitability, eligibility, and qualifications for Federal civilian 
employment, military service, Federal contracts, or access to 
classified information. In some cases, such records may contain 
information pertaining to the identity of a source who furnished 
information to the Government under an express promise that the 
source's identity would be held in confidence (or prior to the 
effective date of the Privacy Act, under an implied promise). 
Application of exemption (k)(5) for such records may be necessary 
because access to, amendment of, or release of the accounting of 
disclosures of such records could identify these confidential sources 
who might not have otherwise come forward to assist the Government, 
could hinder the Government's ability to obtain information from future 
confidential sources, and result in an unwarranted invasion of the 
privacy of others. Amendment of such records could also impose a highly 
impracticable administrative burden by requiring investigations to be 
continuously reinvestigated.
    (5) Exemption (k)(6). Personnel investigations and vetting records 
may contain information relating to testing or examination material 
used solely to determine individual qualifications for appointment or 
promotion in the Federal service. Application of exemption (k)(6) for 
such records may be necessary because access to, amendment of, or 
release of the

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accounting of disclosures of such records could compromise the 
objectivity and fairness of the testing or examination process. 
Amendment of such records could also impose a highly impracticable 
administrative burden by requiring investigations to be continuously 
reinvestigated.
    (6) Exemption (k)(7). Personnel investigations and vetting records 
may contain evaluation material used to determine potential for 
promotion in the armed services. In some cases, such records may 
contain information pertaining to the identity of a source who 
furnished information to the Government under an express promise that 
the source's identity would be held in confidence (or prior to the 
effective date of the Privacy Act, under an implied promise). 
Application of exemption (k)(7) for such records may be necessary 
because access to, amendment of, or release of the accounting of 
disclosures of such records could identify these confidential sources 
who might not have otherwise come forward to assist the Government, 
hinder the Government's ability to obtain information from future 
confidential sources, and result in an unwarranted invasion of the 
privacy of others. Amendment of such records could also impose a highly 
impracticable administrative burden by requiring investigations to be 
continuously reinvestigated.
    (B) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent an exemption is claimed from (d)(1) and (2). Moreover, 
applying the amendment appeal procedures toward background 
investigation and vetting records could impose a highly impracticable 
administrative burden by requiring investigations to be continuously 
reinvestigated.
    (C) Subsection (e)(1). In the collection of information for 
authorized vetting purposes, it is not always possible to conclusively 
determine the relevance and necessity of particular information in the 
early stages of the investigation or adjudication. In some instances, 
it will be only after the collected information is evaluated in light 
of other information that its relevance and necessity for effective 
investigation and adjudication can be assessed. Collection of such 
information permits more informed decision-making by the Department 
when making required suitability, eligibility, fitness, and 
credentialing determinations. Accordingly, application of exemptions 
(k)(1), (k)(2), (k)(3), (k)(5), (k)(6), and (k)(7) may be necessary.
    (iv) Exempt records from other systems. In addition, in the course 
of carrying out personnel vetting, including records checks for 
continuous vetting, exempt records from other systems of records may in 
turn become part of the records maintained in this system. To the 
extent that copies of exempt records from those other systems of 
records are maintained into this system, the DoD claims the same 
exemptions for the records from those other systems that are entered 
into this system, as claimed for the original primary system of which 
they are a part.

    Dated: October 11, 2018.
Shelly E. Finke,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2018-22507 Filed 10-16-18; 8:45 am]
 BILLING CODE 5001-06-P