[Federal Register Volume 87, Number 121 (Friday, June 24, 2022)]
[Proposed Rules]
[Pages 37774-37776]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-13572]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID DoD-2022-OS-0066]
RIN 0790-AL08


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary of Defense (OSD), Department of Defense 
(DoD).

ACTION: Proposed rule.

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SUMMARY: The Department of Defense (Department or DoD) is giving 
concurrent notice of a new Department-wide system of records pursuant 
to the Privacy Act of 1974 for the DoD-0010, ``Counterintelligence 
Functional Services'' system of records and this proposed rulemaking. 
In this proposed rulemaking, the Department proposes to exempt portions 
of this system of records from certain provisions of the Privacy Act 
because of national security, law enforcement, and employment 
suitability mission areas.

DATES: Send comments on or before August 23, 2022.

ADDRESSES: You may submit comments, identified by docket number, 
Regulation Identifier Number (RIN), and title, by any of the following 
methods.
    * Federal eRulemaking Portal: https://www.regulations.gov. Follow 
the instructions for submitting comments.
    * Mail: Department of Defense, Office of the Assistant to the 
Secretary of Defense for Privacy, Civil Liberties, and Transparency, 
Regulatory Directorate, 4800 Mark Center Drive, Attn: Mailbox 24, Suite 
08D09, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number or 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 https://www.regulations.gov as they are received without 
change, including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Ms. Rahwa Keleta, Defense Privacy and 
Civil Liberties Division, Directorate for Privacy, Civil Liberties and 
Freedom of Information, Office of the Assistant to the Secretary of 
Defense for Privacy, Civil Liberties, and Transparency, Department of 
Defense, 4800 Mark Center Drive, Mailbox #24, Suite 08D09, Alexandria, 
VA 22350-1700; [email protected]; (703) 571-0070.

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, the DoD is establishing 
a new DoD-wide system of records titled ``Counterintelligence 
Functional Services,'' DoD-0010. This system of records notice 
describes DoD's collection, use, and maintenance of records about 
counterintelligence functional services (CIFS). The purpose of CIFS is 
to protect Department resources and personnel from foreign adversaries 
who seek to exploit sensitive information, operations, and programs to 
the detriment of the U.S. government. The system of records consists of 
both electronic and paper records and will be used by DoD components 
and offices to maintain records about individuals in support of the 
Counterintelligence (CI) mission for the Department. DoD is authorized 
to maintain records on individuals to protect against espionage, 
intelligence activities, sabotage, or assassinations conducted by 
foreign entities or international terrorists. CIFS activities support 
the following CI missions: countering espionage; countering 
international terrorism; and providing support to force protection, 
research, development, and acquisition activities. CIFS also include 
assessments of CI incidents and DoD-required CI reporting conducted 
throughout the DoD enterprise. Not included in this system of records 
are records concerning CI investigations or CI collection activities.
    The CIFS records contain information on both Federal employees and 
members of the public. The CIFS system of records contains data derived 
from individuals, government records (Federal, State, and local, 
tribal, and foreign) and information collected directly from the 
public.

II. Privacy Act Exemption

    The Privacy Act allows federal agencies to exempt eligible records 
in a system of records from certain provisions of the Act, including 
those that provide individuals with a right to request access to and 
amendment of their own records. If an agency intends to exempt a 
particular system of records, it must first go through the rulemaking 
process to provide public notice and an opportunity to comment on the 
proposed exemption. This proposed rule explains why exemptions are 
being claimed for this system of records and invites public comment, 
which DoD will consider before the issuance of a final rule 
implementing those exemptions.
    The DoD proposes to amend 32 CFR part 310 to add a new Privacy Act 
exemption rule for the DoD-0010, ``Counterintelligence Functional 
Services'' system of records. In this proposed rulemaking, the 
Department proposes to exempt portions of this system of records from 
certain provisions of the Privacy Act because information in this 
system of records may fall within the scope of the following Privacy 
Act exemptions: 5 U.S.C. 552a(k)(1), 5 U.S.C. 552a(k)(2), and 5 U.S.C. 
552a(k)(5).
    DoD proposes to exempt this system of records because these records 
may contain classified national security information and providing 
notice, access, amendment, and disclosure of accounting of those 
records to an individual, as well as certain record-keeping 
requirements, may cause damage to national security. The Privacy Act, 
pursuant to 5 U.S.C. 552a(k)(1), authorizes agencies to claim an 
exemption for systems of records that contain information properly 
classified pursuant to executive order. The DoD therefore is proposing 
to claim an exemption from several provisions of the Privacy Act, 
including various access, amendment, disclosure of accounting, and 
certain record-keeping and notice requirements, to prevent disclosure 
of any information properly classified pursuant to executive order, as 
implemented by DoD Instruction 5200.01 and DoD Manual 5200.01, Volumes 
1 and 3.
    The DoD is also proposing this exemption rule because this system 
of records may contain investigatory material compiled for law 
enforcement purposes within the scope of 5 U.S.C. 552a(k)(2). This 
exemption allows DoD entities to claim an exemption for systems of 
records that contain

[[Page 37775]]

investigatory materials compiled for law enforcement purposes, other 
than material within the scope of 5 U.S.C. 552a(j)(2), which describes 
certain material related to the enforcement of criminal laws maintained 
by principal-function criminal law enforcement agencies. The Department 
therefore is proposing to claim an exemption from several provisions of 
the Privacy Act, including various access, amendment, disclosure of 
accounting, and certain record-keeping and notice requirements, to 
prevent, among other harms, the identification of actual or potential 
subjects of investigation and/or sources of investigative information 
and to avoid frustrating the underlying law enforcement purpose for 
which the records were collected. Finally, the DoD also proposes an 
exemption for this system of records because the records may contain 
information pertaining to investigatory material compiled solely for 
the purpose of determining suitability, eligibility, or qualifications 
for Federal civilian employment, military service, Federal contracts, 
or access to classified information, but only to the extent that the 
disclosure of such material would reveal the identity of a source who 
furnished information to the Government under an express promise of 
confidentiality. The Privacy Act, pursuant to 5 U.S.C. 552a(k)(5) 
authorizes agencies to claim an exemption for systems of records 
containing information identifying confidential sources crucial to 
determining suitability for holding positions of trust. Accordingly, 
the DoD is proposing to claim an exemption from several provisions of 
the Privacy Act, including various access, amendment, disclosure of 
accounting, and certain record-keeping and notice requirements, to 
prevent the compromise of the identity of confidential sources within 
such investigatory material.
    Records in this system of records are only exempt from the Privacy 
Act to the extent the purposes underlying the exemption pertain to the 
record. A notice of a new system of records for DoD-0010, 
``Counterintelligence Functional Services,'' is also published in this 
issue of the Federal Register.

Regulatory Analysis

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

    Executive Orders 12866 and 13563 direct agencies to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distribute impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. It has been determined that this proposed rule is not a 
significant regulatory action under these executive orders.

Congressional Review Act

    This proposed rule is not a ``major rule'' as defined by 5 U.S.C. 
804(2).

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

    The Assistant to the Secretary of Defense for Privacy, Civil 
Liberties, and Transparency certified that this proposed rule does not 
have significant economic impact on a substantial number of small 
entities because it is concerned only with the administration of a 
Privacy Act system of records within the DoD.

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

    It has been determined that this proposed 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.).

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

    It has been determined that this proposed 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 proposed 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.

Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments''

    Executive Order 13175 establishes certain requirements that an 
agency must meet when it promulgates a proposed rule (and subsequent 
final rule) that imposes substantial direct compliance costs on one or 
more Indian tribes, preempts tribal law, or effects the distribution of 
power and responsibilities between the federal government and Indian 
tribes. This proposed rule will not have a substantial effect on Indian 
tribal governments.

List of Subjects in 32 CFR Part 310

    Privacy.

    Accordingly, 32 CFR part 310 is proposed to be 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. Section 310.13 is amended by adding paragraph (e)(8) to read as 
follows:


Sec.  310.13  Exemptions for DoD-wide systems.

* * * * *
    (e) * * *
    (8) System identifier and name. DoD-0010, ``Counterintelligence 
Functional Services''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3); (d)(1), (2), (3), and (4); (e)(1); (e)(4)(G), (H), and (I); 
and (f) of the Privacy Act.
    (ii) Authority. 5 U.S.C. 552a (k)(1), (k)(2), and (k)(5).
    (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). Records in this system of records may contain 
information concerning individuals that is properly classified pursuant 
to executive order. Application of exemption (k)(1) for such records 
may be necessary because access to and amendment of the records, or 
release of the accounting of disclosures for such records, could reveal 
classified information. Disclosure of classified records to an 
individual may cause damage to national security.
    (2) Exemption (k)(2). Records in this system of 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) 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 disciplinary 
investigation, and thereby seriously impede law enforcement or

[[Page 37776]]

prosecutorial efforts by permitting the record subject and other 
persons to whom he might disclose the records or the accounting of 
records to avoid criminal penalties, civil remedies, or disciplinary 
measures; interfere with a civil or administrative action or 
investigation by allowing the subject to tamper with witnesses or 
evidence, and to avoid detection or apprehension, which may undermine 
the entire investigatory process; reveal confidential sources who might 
not have otherwise come forward to assist in an investigation and 
thereby hinder DoD'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.
    (3) Exemption (k)(5). Records in this system of records may contain 
information concerning 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) 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 subsections (d)(1) and (2).
    (C) Subsection (e)(1). In the collection of information for 
investigatory or law enforcement 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) and (k)(5) may be necessary.
    (D) Subsections (e)(4)(G) and (H). These subsections are 
inapplicable to the extent exemption is claimed from subsections (d)(1) 
and (2). Because portions of this system are exempt from the individual 
access and amendment provisions of subsection (d) for the reasons noted 
above, DoD is not required to establish requirements, rules, or 
procedures with respect to such access or amendment provisions. 
Providing notice to individuals with respect to the existence of 
records pertaining to them in the system of records or otherwise 
setting up procedures pursuant to which individuals may access, view, 
and seek to amend records pertaining to themselves in the system would 
potentially reveal classified information, undermine investigative 
efforts, reveal the identities of witnesses, potential witnesses, and 
confidential informants, and impose an undue administrative burden by 
requiring investigations to be continually reinvestigated. Accordingly, 
application of exemptions (k)(1), (k)(2) and (k)(5) may be necessary.
    (E) Subsection (e)(4)(I). To the extent that this provision is 
construed to require more detailed disclosure than the broad, general 
information currently published in the system notice concerning the 
categories of sources of the records in the system, an exemption from 
this provision is necessary to protect classified information, other 
national security information, and the confidentiality of national 
security, law enforcement, and investigatory sources of information, 
and to protect the privacy and physical safety of witnesses and 
informants. Accordingly, application of exemptions (k)(1), (k)(2) and 
(k)(5) may be necessary.
    (F) Subsection (f). The agency's rules are inapplicable to those 
portions of the system that are exempt. Accordingly, application of 
exemptions (k)(1), (k)(2) and (k)(5) may be necessary.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, 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 in 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 prior system(s) of which 
they are a part, provided the reason for the exemption remains valid 
and necessary.
* * * * *

    Dated: June 21, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2022-13572 Filed 6-23-22; 8:45 am]
BILLING CODE 5001-06-P