[Federal Register Volume 85, Number 188 (Monday, September 28, 2020)]
[Rules and Regulations]
[Pages 60714-60716]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-21379]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DOD-2019-OS-0122]
RIN 0790-AK47


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary of Defense, DoD.

ACTION: Direct final rule with request for comments.

-----------------------------------------------------------------------

SUMMARY: The Office of the Secretary proposes to exempt records 
maintained in CIG-26, ``Case Control System--Investigative.'' The 
System of Records Notice was published in the Federal

[[Page 60715]]

Register on August 9, 2011. This rule is being published as a direct 
final rule as the DoD does not expect to receive any adverse comments. 
If such comments are received, this direct final rule will be cancelled 
and a proposed rule for comments will be published.

DATES: The rule will be effective on December 7, 2020 unless comments 
are received that would result in a contrary determination. Comments 
will be accepted on or before November 27, 2020.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods.
    * Federal eRulemaking Portal: http://www.regulations.gov.
    Follow the instructions for submitting comments.
    * Mail: DoD cannot receive written comments at this time due to the 
COVID-19 pandemic. Comments should be sent electronically to the docket 
listed above.
    Instructions: All submissions received must include the agency name 
and docket number or Regulatory Information Number (RIN) 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. Anna Rivera, 703-699-5680.

SUPPLEMENTARY INFORMATION: The Office of the Secretary proposes to 
exempt records maintained in CIG-26, ``Case Control System-
Investigative,'' from subsections (c)(3) and (c)(4); (d); (e)(1), 
(e)(2), (e)(3), (e)(4)(G), (e)(4)(H), (e)(4)(I), (e)(5), and (e)(8); 
and (g) of the Privacy Act pursuant to 5 U.S.C. 552a (j)(2), (k)(1), 
and (k)(2).
    This direct final rule adds to the Office of the Inspector General 
(OIG) exemptions found in 32 CFR 310.28. This exemption rule will allow 
the DoD OIG to efficiently and effectively implement the DoD Inspector 
General program by exempting certain records from pertinent provisions 
of 5 U.S.C. 552a.
    The DoD OIG maintains this system of records in order to carry out 
its responsibilities pursuant to the Inspector General Act of 1978, as 
amended. The DoD OIG is statutorily directed to conduct and supervise 
investigations relating to the programs and operations of the DoD; to 
promote economy, efficiency, and effectiveness in the administration of 
such programs and operations; and to prevent and detect fraud, waste, 
and abuse in such programs and operations. Accordingly, the records in 
this system are used in the course of investigating individuals 
suspected of administrative or criminal misconduct.

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

    It has been previously determined that all Privacy Act rules for 
the Department of Defense are not significant rules. The rules do 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 final rule is not subject to the requirements of E.O. 13771 
because it is not significant under E.O. 12866.

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

    It has been determined that the Privacy Act rulemaking for the 
Department of Defense 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 such rulemaking will not significantly or uniquely affect small 
governments.

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

    It has been determined that Privacy Act rules for the Department of 
Defense impose no additional reporting or recordkeeping requirements on 
the public under the Paperwork Reduction Act of 1995.

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

    It has been certified that Privacy Act rules for the Department of 
Defense do not have significant economic impact on a substantial number 
of small entities because they are concerned only with the 
administration of Privacy Act systems of records within the Department 
of Defense.

Congressional Review Act

    The Congressional Review Act, 5 U.S.C. 801 et seq., generally 
provides that before a rule may take effect, the agency promulgating 
the rule must submit a rule report, which includes a copy of the rule, 
to each House of the Congress and to the Comptroller General of the 
United States. We will submit a report containing this rule and other 
required information to the U.S. Senate, the U.S. House of 
Representatives, and the Comptroller General of the United States. A 
major rule cannot take effect until 60 days after it is published in 
the Federal Register. This direct final rule is not a ``major rule'' as 
defined by 5 U.S.C. 804(2).

Executive Order 13132, ``Federalism''

    It has been determined that the Privacy Act rules for the 
Department of Defense do not have federalism implications. The rules do 
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 part 310 continues to read as follows:

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


0
2. Amend Sec.  310.28 by adding paragraph (c)(9) to read as follows:


Sec.  310.28  Office of the Inspector General (OIG) exemptions.

* * * * *
    (c) * * *
    (9) System identifier and name. CIG-26, Case Control System-
Investigative.
    (i) Exemption. Any portion of this system which falls within the 
provisions of 5 U.S.C. 552a(j)(2) may be exempt from the following 
subsections of 5 U.S.C. 552a: (c)(3), (c)(4), (d), (e)(1), (e)(2), 
(e)(3), (e)(4)(G) through (I), (e)(5), (e)(8), and (g), as applicable. 
In addition, any portion of this system which falls within the 
provisions of 5 U.S.C. 552a(k)(1) or (k)(2) may be exempt from the 
following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1), (e)(4)(G) 
through

[[Page 60716]]

(I), as applicable. Exempted records from other systems of records may 
in-turn become part of the case record in this system. To the extent 
that copies of exempt records from those `other' systems of records are 
entered into this system, the DoD OIG 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. Records are only exempt from pertinent provisions of 5 U.S.C. 
552a to the extent such provisions have been identified and an 
exemption claimed for the original record and the purposes underlying 
the exemption for the original record still pertain to the record which 
is now contained in this system of records. The exemption rule for the 
original records will identify the specific reasons why the records are 
exempt from specific provisions of 5 U.S.C. 552a.
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
    (iii) Reasons. (A) From subsections (c)(3) and (c)(4) because 
making available to a record subject the accounting of disclosure of 
investigations concerning him or her would specifically reveal an 
investigative interest in the individual. Revealing this information 
would reasonably be expected to compromise open or closed 
administrative or criminal investigation efforts to a known or 
suspected offender by notifying the record subject that he or she is 
under investigation. This information could also prompt 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. Granting access to information that is properly classified 
pursuant to executive order may cause damage to national security. 
Additionally, 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. It can also 
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; could identify a 
confidential source or disclose information which would constitute an 
unwarranted invasion of another's personal privacy; reveal a sensitive 
investigation or constitute a potential danger to the health or safety 
of law enforcement personnel, confidential informants, and witnesses. 
Amendment of open or active investigations 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 subsection (e)(1) because it is not always possible to 
determine what information is relevant and necessary at an early stage 
in a given investigation, and because DoD OIG 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. The nature of the criminal and/or administrative 
law enforcement investigative functions creates unique problems in 
prescribing a specific parameter and a particular case with respect to 
what information is relevant or necessary. Also, due to the DoD OIG's 
close liaison and working relationships with other Federal, State, 
local and foreign country criminal and administrative law enforcement 
agencies, information may be received which may relate to a case under 
the investigative jurisdiction of another agency. The maintenance of 
this information may be necessary to provide leads for appropriate 
criminal and administrative law enforcement purposes and to establish 
patterns of activity which may relate to the jurisdiction of other 
cooperating agencies.
    (D) From subsection (e)(2) because it is not always in the best 
interest of law enforcement to collect information to the greatest 
extent practicable directly from an investigative subject. Requiring 
the collection of information to the greatest extent practicable 
directly from an investigative subject would present a serious 
impediment to law enforcement in that the subject of the investigation 
would be placed on notice of the existence of the investigation and 
would therefore be able to avoid detection.
    (E) From subsection (e)(3) because supplying an individual with a 
form containing a Privacy Act Statement would tend to inhibit 
cooperation by many individuals involved in a criminal investigation. 
The effect would be somewhat adverse to established investigative 
methods and techniques.
    (F) From subsections (e)(4)(G) through (I) because this system of 
records is exempt from the access provisions of subsection (d).
    (G) From subsection (e)(5) because the requirement that records be 
maintained with attention to accuracy, relevance, timeliness, and 
completeness would unfairly hamper the 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 complete. With the passage of time, seemingly 
irrelevant or untimely information may acquire new significance as 
further investigation brings new details to light.
    (H) From subsection (e)(8) because the notice requirements of this 
provision could present a serious impediment to criminal law 
enforcement investigations by revealing investigative techniques, 
procedures, and existence of sensitive information and/or confidential 
sources.
    (I) To the extent that exemptions have been established from other 
provisions of the Privacy Act, the civil remedies provisions of 
subsection (g) are inapplicable. The nature of criminal law enforcement 
investigations and the utilization of authorized exemptions should not 
increase the Department's exposure to civil litigation under the 
Privacy Act.

    Dated: September 23, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-21379 Filed 9-25-20; 8:45 am]
BILLING CODE 5001-06-P