[Federal Register Volume 83, Number 248 (Friday, December 28, 2018)]
[Proposed Rules]
[Pages 67172-67174]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26048]



[[Page 67172]]

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OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE

32 CFR Part 1701


Privacy Act of 1974: System of Records

AGENCY: Office of the Director of National Intelligence.

ACTION: Proposed rulemaking.

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SUMMARY: The Office of the Director of National Intelligence (ODNI) 
proposes to: Exempt a new system of records (Continuous Evaluation 
System) as well as systems of records of the Intelligence Community 
Office of Inspector General (ICIG) from the requirements of the Privacy 
Act to the extent that information in each system is subject to the 
Privacy Act's exemption provisions. The ODNI also proposes to add a new 
section which restores a list of all ODNI systems of records that are 
subject to Privacy Act exemption.

DATES: Submit comments on or before January 28, 2019.

ADDRESSES: You may submit comments by any of the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov.
    Mail: Director, Information Management Division, Office of the 
Director of National Intelligence, Washington, DC 20511.

FOR FURTHER INFORMATION CONTACT: Ms. Patricia Gaviria, Director, 
Information Management Division, (301-243-1054).

SUPPLEMENTARY INFORMATION: In compliance with the Privacy Act, 5 U.S.C. 
552a(e)(4), ODNI has already described in the notice section of the 
Federal Register (83 FR 61395, document 18-25970), published on 
November 29, 2018, the following new system of records: Continuous 
Evaluation Records (ODNI/NCSC-003). This new system of records 
facilitates implementation of the National Counterintelligence and 
Security Center (NCSC) Continuous Evaluation System, which conducts 
ongoing automated checks of security-relevant databases to ensure that 
individuals who have been determined to be eligible for access to 
classified information or to hold a sensitive position remain eligible, 
as required by Executive Orders 12968 as amended (Access to Classified 
Information), and 13467 as amended (Reforming Processes Related to 
Suitability for Government Employment, Fitness for Contractor 
Employees, and Eligibility for Access to Classified National Security 
Information). The system of records will contain biographic and 
personnel security-relevant records pertaining to current Executive 
Branch employees, detailees, contractors, and other sponsored 
individuals (enrollees).
    In its proposed rule, the ODNI intends to exempt the above new 
system of records, Continuous Evaluation Records (ODNI/NCSC-003), from 
certain provisions of the Privacy Act to prevent the compromise of 
classified information and to ensure the integrity of any law 
enforcement, counterintelligence, or administrative investigation that 
may be undertaken with respect to the subject of the record.
    In addition, this ODNI proposed rule intends to restore the list of 
ODNI exempt systems of records to Part 32 of the CFR at Sec.  1701.22, 
as redesignated. This list had been deleted by final action published 
at 80 FR 63427 (October 20, 2015). The restored list reflects the 
break-down of exempt systems of records by ODNI component.

Regulatory Flexibility Act

    This proposed rule affects the manner in which ODNI collects and 
maintains information about individuals. ODNI certifies that this 
rulemaking will not have a significant economic impact on a substantial 
number of small entities. Accordingly, pursuant to the Regulatory 
Flexibility Act, 5 U.S.C. 601-612, no regulatory flexibility analysis 
is required for this rule.

Small Entity Inquiries

    The Small Business Regulatory Enforcement Fairness Act (SBREFA) of 
1996 requires ODNI to comply with small entity requests for information 
and advice about compliance with statutes and regulations within 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.sga.gov/advo/law/law_lib.html.

Paperwork Reduction Act

    The Paperwork Reduction Act of 1995 (44 U.S.C. 3507(d)) requires 
that 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 proposed rule 
and therefore no analysis of burden is required.

Executive Order 12866, Regulatory Planning and Review

    This proposed rule is not a ``significant regulatory action'' 
within the meaning of Executive Order 12866. This rule will not have an 
annual effect on the economy of $100 million or more or otherwise 
adversely affect the economy or 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 rights and obligations of 
recipients thereof; and will not 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 proposed 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 ODNI to examine the implications for 
the distribution of power and responsibilities among the various levels 
of government resulting from this proposed rule. ODNI concludes that 
the proposed 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

    ODNI has reviewed this action for purposes of the National 
Environmental Policy Act of 1969 (NEPA), 42 U.S.C. 4321-4347, and has 
determined that this action will not have a significant effect on the 
human environment.

Energy Impact

    The energy impact of this action has been assessed in accordance 
with the Energy Policy and Conservation Act (EPCA), Public Law 94-163, 
as amended, 42 U.S.C. 6362. This rulemaking is not a major regulatory 
action under the provisions of the EPCA.

List of Subjects in 32 CFR Part 1701

    Records and Privacy Act.

    For the reasons set forth above, ODNI proposes to amend 32 CFR part 
1701 as follows:

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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. 3002-3231; 5 U.S.C. 552a.

Subpart B--[Amended]

0
2. Revise subpart B by:
0
(a) Removing Sec. Sec.  1701.21 through 1701.23
0
(b) Redesignating Sec.  1701.24 as Sec.  1701.21 and revising it to 
read as follows:


Sec.  1701.21  Exemption of the Office of the Director of National 
Intelligence (ODNI) Systems of Records

    (a) ODNI exempts the systems of records listed in Sec.  1701.22 
from the requirements of paragraphs (c)(3); (d)(1), (2), (3) and (4); 
(e)(1), and (e)(4)(G), (H) and (I); and (f) of the Privacy Act to the 
extent that information in the system is subject to exemption pursuant 
to paragraphs (k)(1), (k)(2) or (k)(5) of the Act as noted in the 
individual systems notices. ODNI also may derivatively preserve the 
exempt status of records it receives from source agencies when the 
reason for the exemption remains valid, as set forth in 32 CFR 1701.20.
    (b) Systems of records utilized by the Office of the Intelligence 
Community Inspector General (ICIG) are additionally exempted from the 
requirements of paragraphs (c)(4); (e)(2); (e)(3); (e)(5); (e)(8); 
(e)(12) and (g) of the Privacy Act to the extent that information in 
the system is subject to exemption pursuant to paragraphs (j)(2) of the 
Privacy Act.
    (c) Exemption of records in these systems from any or all of the 
enumerated requirements may be necessary for the following reasons:
    (1) From paragraphs (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 ODNI or the recipient agency and could result in release of 
properly classified national security or foreign policy information.
    (2) From paragraphs (c)(4) (notice of amendment to record 
recipients) because the system is exempted from the access and 
amendment provisions of paragraphs (d).
    (3) From paragraphs (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.
    (4) From paragraphs (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 paragraphs (k)(1), records in this 
system may be exempted from the relevance requirement pursuant to 
paragraphs (k)(2) and (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.
    (5) From paragraphs (e)(2) (collection directly from the 
individual) because application of this provision would alert the 
subject of a counterterrorism investigation, study, or analysis to that 
fact, permitting the subject to frustrate or impede the activity. 
Counterterrorism investigations necessarily rely on information 
obtained from third parties rather than information furnished by 
subjects themselves.
    (6) From paragraphs (e)(3) (provide Privacy Act Statement to 
subjects furnishing information) because the system if exempted from 
paragraphs (e)(2) requirement to collect information directly from the 
subject.
    (7) From paragraphs (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 paragraphs (d) provisions regarding access and amendment, 
and from the paragraphs (f) requirement to promulgate agency rules for 
notification, access, and amendment. Nevertheless, 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.
    (8) From paragraphs (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.
    (9) From paragraphs (e)(5) (maintain timely, accurate, complete and 
up-to-date records) because many of the records in the system are 
derived from other domestic and foreign agency record systems over 
which ODNI exercises no control. In addition, in collecting information 
for counterterrorism, intelligence, and law enforcement purposes, it is 
not possible to determine in advance what information is accurate, 
relevant, timely, and complete. With the passage of time and the 
development of additional facts and circumstances, seemingly irrelevant 
or dated information may acquire significance. The restrictions imposed 
by paragraphs (e)(5) would limit the ability of intelligence analysts 
to exercise judgment in conducting investigations and impede 
development of intelligence necessary for effective counterterrorism 
and law enforcement efforts.
    (10) From paragraphs (e)(8) (notice of compelled disclosures) 
because requiring individual notice of legally compelled disclosure 
poses an impossible administrative burden and could alert subjects of 
counterterrorism, law enforcement, or intelligence investigations to 
the previously unknown fact of those investigations.
    (11) From paragraphs (e)(12) (public notice of matching activity) 
because, to the extent such activities are not otherwise excluded from 
the matching requirements of the Privacy Act, publishing advance notice 
in the Federal Register would frustrate the ability of intelligence 
analysts to act quickly in furtherance of analytical efforts.
    (12) From paragraphs (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 
paragraphs (d) provisions regarding access and amendment of records by 
record subjects. Nevertheless, 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

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pertaining to him and procedures by which the subject may access or 
amend the records. Notwithstanding exemption, ODNI may determine it 
appropriate to satisfy a record subject's access request.
    (13) From paragraphs (g) (civil remedies) to the extent that the 
civil remedies relate to provisions of 5 U.S.C. 552a from which this 
rule exempts the system.
    (c) inserting a new Sec.  1701.22 entitled ``List of ODNI Systems 
of Records That Are Subject to Exemption''

ODNI Systems of Records Subject to Exemption

Manuscript, Presentation, and Resume Review Records (ODNI-01) (k)(1)
Executive Secretary Action Management System Records (ODNI-02) (k)(1)
Public Affairs Office Records (ODNI-03) (k)(1)
Office of Legislative Affairs Records (ODNI-04) (k)(1)
ODNI Guest Speaker Records (ODNI-05) (k)(1)
Office of General Counsel Records (ODNI-06) (k)(1), (2), (5)
Intelligence Community Customer Registry (ODNI-09) (k)(1)
Office of Intelligence Community Equal Employment Opportunity and 
Diversity Records (ODNI-10) (k)(1), (2), (5)
Office of Protocol Records (ODNI-11) (k)(1)
Intelligence Community Security Clearance and Access Approval 
Repository (ODNI-12) (k)(1), (2), (5)
Security Clearance Reform Research and Oversight Records (ODNI-13) 
(k)(1), (2), (5)
Civil Liberties and Privacy Office Complaint Records (ODNI-14) (k)(1), 
(2), (5)
Mission Outreach and Collaboration Records (ODNI-15) (k)(1)
ODNI Human Resource Records (ODNI-16) (k)(1)
ODNI Personnel Security Records (ODNI-17) (k)(1), (2), (5)
ODNI Freedom of Information Act, Privacy Act, and Mandatory 
Declassification Review Request Records (ODNI-18) (k)(1), (2), (5)
ODNI Information Technology Systems Activity and Access Records (ODNI-
19) (k)(1), (2), (5)
ODNI Security Clearance Reciprocity Hotline Records (ODNI-20) (k)(1), 
(5)
ODNI Information Technology Network Support, Administration and 
Analysis Records (ODNI-21) (k)(1)
Insider Threat Program Records (ODNI-22) (k)(1), (2), (5)

ODNI/National Counterintelligence and Security Center (NCSC) Systems of 
Records

Damage Assessment Records (ODNI/NCIX-001) (k)(1), (2)
Counterintelligence Trends Analyses Records (ODNI/NCSC-002) (k)(1), (2)
Continuous Evaluation Records (ODNI/NCSC-003) (k)(1), (2), (5)

ODNI/National Counterterrorism Center (NCTC) Systems of Records

NCTC Access Authorization Records (ODNI/NCTC-002) (k)(1)
NCTC Telephone Directory (ODNI/NCTC-003) (k)(1)
NCTC Knowledge Repository (ODNI/NCTC-004) (k)(1), (2)
NCTC Current (ODNI/NCTC-005) (k)(1), (2)
NCTC Partnership Management Records (ODNI/NCTC-006) (k)(1)
NCTC Tacit Knowledge Management Records (ODNI/NCTC-007)
NCTC Terrorism Analysis Records (ODNI/NCTC-008) (k)(1), (2)
Terrorist Identities Records (ODNI/NCTC-009) (k)(1), (2)

ODNI/Office of the Intelligence Community Inspector General (ICIG) 
Systems of Records

OIG Human Resources Records (ODNI/OIG-001) (k)(1), (5)
OIG Experts Contact Records (ODNI/OIG-002) (k)(1), (5)
OIG Investigation and Interview Records (ODNI/OIG-003) (j)(2); (k)(1), 
(2), (5)

Deirdre M. Walsh,
Chief Operating Officer, Office of the Director of National 
Intelligence.
[FR Doc. 2018-26048 Filed 12-27-18; 8:45 am]
 BILLING CODE 3910-79-P-P