[Federal Register Volume 86, Number 212 (Friday, November 5, 2021)]
[Notices]
[Pages 61325-61328]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-24267]
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OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
Privacy Act of 1974; System of Records
AGENCY: Office of the Director of National Intelligence (ODNI)
ACTION: Notice of a revised system of records.
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SUMMARY: ODNI provides notice of a revision to a Privacy Act system of
records at the National Counterintelligence and Security Center (NCSC).
This notice revises the system of records titled Continuous Evaluation
Records, also identified as ODNI/NCSC-003. This notice is necessary to
inform the public of revisions to the notice summary, system purpose,
categories of individuals covered, and supplementary information about
the records that the agency maintains. This revised notice to the
Continuous Evaluation (CE) Records system adds one-time record checks
of employment applicants in addition to the previous uses of CE for
enrolled individuals.
CE is a personnel security investigative process used to review the
continued eligibility of individuals who have been determined eligible
for access to classified information or to hold a sensitive position.
Individuals subject to CE include current Executive Branch employees,
detailees, contractors, and other sponsored individuals who are cleared
for access to classified information or to hold a sensitive position.
The Departments and Agencies (D/A) that sponsor these individuals for
access to classified information or to hold a sensitive position
``enroll'' the individuals (enrollees) by electronically entering their
identifying information into the CE System, an information technology
system that conducts automated checks of security-relevant information.
All D/As are required to submit their qualifying populations for CE
automated record checks. D/As may choose to develop a CE system of
their own, or subscribe to CE services provided by another agency. NCSC
will provide CE services to subscribing agencies via the ODNI CE
System. The CE System conducts automated checks of government and
commercial databases and, based on personnel security business rules,
transmits electronic alerts and reports to the subscribing agency.
Databases queried in the CE process are those that contain security-
relevant information, e.g., government-owned financial, law
enforcement, terrorism, foreign travel, and current clearance status
information. Credit bureau records and commercially-aggregated
publically available data are also used. On receipt of an electronic
alert or report, authorized personnel security officials at the
subscribing agency verify that the alert or report received pertains to
the enrollee (the subject of the electronic queries). Where the agency
verifies that the alert or report pertains to the enrollee, authorized
personnel security officials review the nature of the alert or report
to determine the need for further investigation, as dictated by Federal
Investigative Standards requirements. Information obtained through any
follow-on investigation is considered in adjudicating the enrollee's
continued eligibility for access to classified information or to hold a
sensitive position.
The ODNI CE System retains the enrollment information (personal
identifiers provided by the subscribing agency to facilitate ongoing CE
checks for individuals who are enrolled in the CE System. The system
does not retain the records returned from the electronic database
queries beyond the time
[[Page 61326]]
needed to ensure proper electronic delivery to the subscribing agency.
Data necessary to implement CE business rules, to perform program
assessments, and to satisfy auditing requirements will be retained. D/
As conducting CE will adhere to the principles articulated in Security
Executive Agent Directive (SEAD) 6, Continuous Evaluation. SEAD 6
establishes policy and provides high-level guidance and requirements
specific to the personnel security investigative process.
The CE System is being revised to now also conduct one-time
electronic record checks for initial vetting of individuals seeking
Executive Branch employment that requires eligibility for access to
classified information or to hold a sensitive position. Employment
applicants receiving one-time checks of security-relevant information
are not enrolled in the CE System for ongoing record checks, and
personal identifiers and records returned are only retained in the
system for the time needed to ensure proper electronic delivery to the
subscribing agency.
DATES: This revised System of Records Notice will go into effect on
November 5, 2021, unless comments are received that result in a
contrary determination.
ADDRESSES: You may submit comments by any of the following methods:
Federal eRulemaking Portal: http://www.regulations.gov.
Email: [email protected].
Mail: Director, Information Management Office, Chief Operating
Officer, ODNI, Washington, DC 20511.
SUPPLEMENTARY INFORMATION: The ODNI CE System provides the technical
capability to conduct automated record checks pursuant to Public Law
114-113, 5 U.S.C. 11001 (Enhanced Personnel Security Programs);
Executive Order 12968, as amended (Access to Classified Information);
Executive Order 13467, as amended, (Reforming Processes Related to
Suitability for Government Employment, Fitness for Contractor
Employees, and Eligibility for Access to Classified National Security
Information), and; Executive Order 13764 (Amending the Civil Service
Rules, Executive Order 13488, and Executive Order 13467 to Modernize
the Executive Branch-Wide Governance Structure and Processes for
Security Clearances, Suitability and Fitness for Employment, and
Credentialing, and Related Matters).
To protect classified and sensitive personnel or law enforcement
information covered by this system of records, the Director of National
Intelligence (DNI) has exempted this system from certain requirements
of the Privacy Act where necessary, as permitted by law. By previously
established rule, the DNI may exempt records contained in this system
of records from the requirements of subsections (c)(3), (d)(1), (d)(2),
(d)(3), (d)(4), (e)(1), (e)(4)(G), (H), (I), and (f) of the Privacy Act
pursuant to 5 U.S.C. 552a(k)(1), (k)(2) and (k)(5). Additionally, the
DNI may exercise derivative exemption authority by preserving the
exempt status of records received from providing agencies when the
reason for exemption remains valid. See 32 CFR part 1701.20 (a)(2) (73
FR 16531, 16537).
SYSTEM NAME AND NUMBER:
Continuous Evaluation Records (ODNI/NCSC-003).
SECURITY CLASSIFICATION:
The classification of records in this system ranges from
UNCLASSIFIED to TOP SECRET.
SYSTEM LOCATION:
National Counterintelligence and Security Center, Office of the
Director of National Intelligence, Washington, DC 20511.
SYSTEM MANAGER(S):
Assistant Director, Special Security Directorate, ODNI/NCSC,
Washington, DC 20511.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
The Intelligence Reform and Terrorism Prevention Act of 2004,
Public Law 108-458, 118 Stat. 3638 (Dec. 17, 2004); the National
Security Act of 1947, as amended, 50 U.S.C. 3023 et seq.; the
Counterintelligence Enhancement Act of 2002, as amended, 50 U.S.C.
3382; Executive Order 12333, 46 FR 59941 (1981), as amended by
Executive Order 13284, 68 FR 4075 (2003), Executive Order 13355, 69 FR
53593 (2004), and Executive Order 13470, 73 FR 45325 (2008); Executive
Order 13488, 74 FR 4111 (2009), as amended by Executive Order 13764, 82
FR 8115 (2017); Executive Order 13549, 75 FR 51609 (2010); Executive
Order 12968, 60 FR 40245 (1995), as amended by Executive Order 13467,
73 FR 38103 (2008), and Executive Order 13764, 82 FR 8115 (2017);
Executive Order 13467, as amended by Executive Order 13764 82 FR 8115
(2017).
PURPOSE(S) OF THE SYSTEM:
Records in this system of records are collected for the purpose of
electronically comparing an individual's identifying data against
specified U.S. Government (financial, law enforcement, terrorism,
foreign travel, and clearance status) databases and credit bureau and
commercial public records databases. The comparison serves to identify
security-relevant conduct, practices, activities, or incidents that
personnel security officials evaluate, consistent with the Federal
Investigative Standards, to determine a CE enrollee's initial and
continued eligibility for access to classified information or to hold a
sensitive position. Additionally, one-time record checks of employment
applicants may be conducted using data within the CE system.
CATEGORIES OF INDIVIDUALS COVERED BY THE SYSTEM:
Executive Branch employees, detailees, contractors, and other
sponsored individuals who have been determined to be eligible for
access to classified information or eligible to hold a sensitive
position; applicants seeking Executive Branch employment that requires
eligibility for access to classified information or to hold a sensitive
position.
CATEGORIES OF RECORDS IN THE SYSTEM:
This system maintains: (i) Biographic enrollment data including
name, date and place of birth, Social Security number, gender, current
address, other first or last names, prior address(es), personal email
address(es), personal phone numbers, passport information, employment
type (contractor/government) or other status, and; (ii) data returned
from or about the automated record checks conducted against current
clearance status information and against financial, law enforcement,
credit, terrorism, foreign travel, and commercial databases.
RECORD SOURCE CATEGORIES:
Record source categories include government-owned financial, law
enforcement, terrorism, foreign travel databases, and current clearance
status information, as well as credit and commercial entities, and
providers of aggregated public source data.
ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES
OF USERS AND PURPOSES OF SUCH USES:
In addition to those disclosures generally permitted under 5 U.S.C.
552a(b) of the Privacy Act of 1974, as amended, these records may
specifically be disclosed outside ODNI as a routine use pursuant to 5
U.S.C. 552a(b)(3), and as contained in the ODNI rule implementing the
Privacy Act, 32 CFR part 1701 (73 FR 16531)as follows:
(i) Except as noted on Standard Forms 85 and 86 and supplemental
forms thereto (questionnaires for employment in, respectively, ``non-
sensitive'' and
[[Page 61327]]
``national security'' positions within the federal government), a
record that on its face or in conjunction with other information
indicates or relates to a violation or potential violation of law,
whether civil, criminal, administrative, or regulatory in nature, and
whether arising by general statute, particular program statute,
regulation, rule, or order issued pursuant thereto, may be disclosed as
a routine use to an appropriate federal, state, territorial, tribal,
local law enforcement authority, foreign government, or international
law enforcement authority, or to an appropriate regulatory body charged
with investigating, enforcing, or prosecuting such violations;
(ii) A record from a system of records maintained by ODNI may be
disclosed as a routine use to representatives of another Intelligence
Community (IC) entity addressing intelligence equities in the context
of a legislative proceeding or hearing when ODNI interests are
implicated, and the record is relevant and necessary to the matter;
(iii) A record from a system of records maintained by ODNI may be
disclosed as a routine use in a proceeding before a court or
adjudicative body when any of the following is a party to litigation or
has an interest in such litigation, and the ODNI Office of General
Counsel determines that use of such records is relevant and necessary
to the litigation: ODNI; any staff of ODNI in his/her official
capacity; any staff of ODNI in his/her individual capacity where the
Department of Justice has agreed to represent the staff or has agreed
to provide counsel at government expense; or the United States or
another federal agency, where the ODNI Office of General Counsel
determines that litigation is likely to affect the ODNI;
(iv) A record from this system of records may be disclosed to the
Department of Justice when: (a) ODNI, or any component thereof; or (b)
any employee of ODNI in his/her official capacity; or (c) any employee
of ODNI in his/her individual capacity where the Department of Justice
has agreed to represent the employee; or (d) the United States, where
ODNI determines that litigation is likely to affect the agency, or any
of its components, is a party to litigation or has an interest in such
litigation, and the use of such records by the Department of Justice is
deemed by the agency to be relevant and necessary to the litigation
provided, however, that in each case, the agency determines that
disclosure of the records to the Department of Justice is a use of the
information contained in the records that is compatible with the
purpose for which the records were collected.
(v) A record from a system of records maintained by ODNI may be
disclosed as a routine use to representatives of the Department of
Justice and other U.S. Government entities, to the extent necessary to
obtain advice on any matter within the official responsibilities of
such representatives, and the responsibilities of ODNI;
(vi) A record from a system of records maintained by ODNI may be
disclosed as a routine use to a federal, state, or local agency or
other appropriate entities or individuals from which/whom information
may be sought relevant to: a decision concerning the hiring or
retention of an employee or other personnel action; the issuing or
retention of a security clearance or special access, contract, grant,
credential, or other benefit; or the conduct of an authorized
investigation or inquiry, to the extent necessary to identify the
individual, inform the source of the nature and purpose of the inquiry,
and identify the type of information requested;
(vii) A record from a system of records maintained by ODNI may be
disclosed as a routine use to any federal, state, local, tribal, or
other public authority, or to a legitimate agency of a foreign
government or international authority to the extent the record is
relevant and necessary to the other entity's decision regarding the
hiring or retention of an employee or other personnel action, the
issuing or retention of a security clearance or special access,
contract, grant, license, or other benefit, or the conduct of an
authorized inquiry or investigation;
(viii) A record from a system of records maintained by ODNI may be
disclosed as a routine use to any agency, for authorized audit
operations, and for meeting-related reporting requirements, including
disclosure to the National Archives and Records Administration for
records management inspections and such other purposes conducted under
the authority of 44 U.S.C. 2904 and 2906, or successor provisions;
(ix) A record from a system of records maintained by ODNI may be
disclosed as a routine use to contractors, grantees, experts,
consultants, or others when access to the record is necessary to
perform the function or service for which they have been engaged by the
ODNI;
(x) A record from the Continuous Evaluation system of records
maintained by ODNI may be disclosed as a routine use to any federal
agency that has provided employee enrollment data to ODNI for purposes
of conducting continuous evaluation when records obtained by ODNI are
relevant to the subscribing agency's adjudication of the employee's
continued eligibility for access to classified information or to hold a
sensitive position.
(xi) A record from a system of records maintained by ODNI may be
disclosed as a routine use to appropriate agencies, entities, and
persons when: (1) ODNI suspects or has confirmed that there has been a
breach of the system of records; (2) ODNI has determined that as a
result of the suspected or confirmed breach there is a risk of harm to
individuals, ODNI (including its information systems, programs, and
operations), the federal government, or national security, and; (3) the
disclosure made to such agencies, entities, and persons is reasonably
necessary to assist in connection with the Department's efforts to
respond to the suspected or confirmed breach or to prevent, minimize,
or remedy such harm.
(xii) A record from a system of records maintained by ODNI may be
disclosed as a routine use to another federal agency or federal entity,
when the ODNI determines that information from this system of records
is reasonably necessary to assist the recipient agency or entity in:
(1) responding to a suspected or confirmed breach, or; (2) preventing,
minimizing, or remedying the risk of harm to individuals, the recipient
agency or entity (including its information systems, programs, and
operations), the federal government, or national security, resulting
from a suspected or confirmed breach.
(xiii) A record from a system of records maintained by ODNI may be
disclosed as a routine use to a federal, state, local, tribal,
territorial, foreign, or multinational agency or entity or to any other
appropriate entity or individual for any of the following purposes: To
provide notification of a serious terrorist threat for the purpose of
guarding against or responding to such threat; to
assist in coordination of terrorist threat awareness, assessment,
analysis, or response, or; to assist the recipient in performing
authorized responsibilities relating to terrorism or counterterrorism;
(xiv) A record from a system of records maintained by ODNI may be
disclosed as a routine use for the purpose of conducting or supporting
authorized counterintelligence activities as defined by section 3003(3)
of the National Security Act of 1947, as amended, to elements of the
IC, as defined by section 3003(4) of the National Security Act of 1947,
as amended, to the head of any federal agency or department, and to
selected
[[Page 61328]]
counterintelligence officers within the federal government, and;
(xv) A record from a system of records maintained by ODNI may be
disclosed as a routine use to a federal, state, local, tribal,
territorial, foreign, or multinational government agency or entity, or
to other authorized entities or individuals, but only if such
disclosure is undertaken in furtherance of responsibilities conferred
by, and in a manner consistent with: the National Security Act of 1947,
as amended; the Counterintelligence Enhancement Act of 2002, as
amended; Executive Order 12333 or any successor order together with its
implementing procedures approved by the Attorney General, and; other
provisions of law, Executive Order or directive relating to national
intelligence, or otherwise applicable to ODNI. This routine use is not
intended to supplant the other routine uses published by the ODNI.
POLICIES AND PRACTICES FOR STORAGE OF RECORDS:
Electronic records are stored in secure file-servers located in
government-managed facilities on secure private cloud-based systems
that are connected only to a government network.
POLICIES AND PRACTICES FOR RETRIEVAL OF RECORDS:
The records in this system are retrieved by name, Social Security
number, or other unique identifier. Information may be retrieved from
this system of records by automated capabilities used in the normal
course of business. All searches of this system of records are
performed by authorized Executive Branch security personnel.
POLICIES AND PRACTICES FOR RETENTION AND DISPOSAL OF RECORDS:
Pursuant to 44 U.S.C. 3303a(d) and 36 CFR Chapter 12, Subchapter
B--Records Management, CE records about applicants seeking Executive
Branch employment that requires eligibility for access to classified
information or to hold a sensitive position; and CE records about
Executive Branch employees, detailees, contractors, and other sponsored
individuals who have been determined to be eligible for access to
classified information or eligible to hold a sensitive position; are
covered by the National Archives and Records Administration (NARA)
General Records Schedule (GRS) 5.6, Security Records. All CE records
will be retained and disposed of according to the applicable NARA GRS
provisions. Biographic data and data about protecting and accessing
information will be retained consistent with the Privacy Act of 1974, 5
U.S.C. 552a, and GRS 4.2, Information Access and Protection Records.
Records about security data and information systems are listed in GRS
3.2, Information Systems Security Records.
ADMINISTRATIVE, TECHNICAL, AND PHYSICAL SAFEGUARDS:
Information in this system is safeguarded in accordance with
recommended and/or prescribed administrative, physical, and technical
safeguards. Records are maintained in secure government-managed
facilities with access limited to authorized personnel. Physical
security protections include guards and locked facilities requiring
badges and passwords for access.
Records are accessed only by current government-authorized
personnel whose official duties require access to the records.
Electronic authorization and authentication of users is required at all
points before any system information can be accessed. Communications
are encrypted where required and other safeguards are in place to
monitor and audit access, and to detect intrusions. System backup is
maintained separately.
RECORD ACCESS PROCEDURES:
As specified below, records in this system have been exempted from
certain notification, access, and amendment procedures. A request for
access shall be made in writing with the envelope and letter clearly
marked ``Privacy Act Request.'' Requesters shall provide their full
name and complete address. The requester must sign the request and have
it verified by a notary public. Alternately, the request may be
submitted under 28 U.S.C. 1746, certifying the requester's identity and
understanding that obtaining a record under false pretenses constitutes
a criminal offense. Requests for access to information must be
addressed to the Director, Information Management Office, Chief
Operating Officer, Office of the Director of National Intelligence,
Washington, DC 20511. Regulations governing access to one's records or
for appealing an initial determination concerning access to records are
contained in the ODNI regulation implementing the Privacy Act, 32 CFR
part 1701 (73 FR 16531).
CONTESTING RECORD PROCEDURES:
As specified below, records in this system are exempt from certain
notification, access, and amendment procedures. Individuals seeking to
correct or amend non-exempt records should address their requests to
ODNI at the address and according to the requirements set forth above
under the heading ``Record Access Procedures.'' Regulations governing
access to and amendment of one's records or for appealing an initial
determination concerning access or amendment of records are contained
in the ODNI regulation implementing the Privacy Act, 32 CFR part 1701
(73 FR 16531).
NOTIFICATION PROCEDURES:
As specified below, records in this system are exempt from certain
notification, access, and amendment procedures. Individuals seeking to
learn whether this system contains non- exempt information about them
should address inquiries to ODNI at the address and according to the
requirements set forth above under the heading ``Record Access
Procedures.''
EXEMPTIONS PROMULGATED FOR THE SYSTEM:
The Privacy Act authorizes ODNI to exempt records contained in this
system of records from the requirements of subsections (c)(3), (d)(1),
(d)(2), (d)(3), (d)(4), (e)(1), (e)(4)(G), (H), (I), and (f) of the
Privacy Act pursuant to 5 U.S.C. 552a(k)(1), (k)(2) and (k)(5). In
addition, pursuant to published rule, ODNI may derivatively exempt
records from other agencies in this system from the requirements of the
subsections listed above, as well as subsections (c)(4), (e)(2),
(e)(3), (e)(5), (e)(8), (e)(12), and (g) of the Privacy Act consistent
with any exemptions claimed under 5
U.S.C. 552a(j) or (k) by the originator of the record, provided the
reason for the exemption remains valid and necessary.
HISTORY:
This is a revision to an existing ODNI/NCSC CE system of records,
Continuous Evaluation Records (ODNI/NCSC-003), 83 FR 61395 (Nov. 29,
2018).
In accordance with 5 U.S.C. 552(r), ODNI has provided a report of
this revision to the Office of Management and Budget and to Congress.
Gregory M. Koch,
Director, Information Management Office, Chief Operating Officer,
Office of the Director of National Intelligence.
[FR Doc. 2021-24267 Filed 11-4-21; 8:45 am]
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