[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:
[[Page 67173]]
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
[[Page 67174]]
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]
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