[Federal Register Volume 87, Number 138 (Wednesday, July 20, 2022)]
[Proposed Rules]
[Pages 43228-43231]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-15456]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DoD-2022-OS-0082]
RIN 0790-AL44
Privacy Act of 1974; Implementation
AGENCY: Office of the Assistant to the Secretary of Defense for
Privacy, Civil Liberties, and Transparency, Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: The Office of the Assistant to the Secretary of Defense for
Privacy, Civil Liberties, and Transparency (OATSD(PCLT)) is giving
concurrent notice of a new component-wide system of records pursuant to
the Privacy Act of 1974 for the CIG-30, Data Analytics Platform system
of records and this proposed rulemaking. In this rulemaking, the
Department proposes to exempt portions of this system of records from
certain provisions of the Privacy Act because of national security and
law enforcement requirements and to avoid interference during the
conduct of criminal, civil, or administrative actions or
investigations.
DATES: Send comments on or before September 19, 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, [email protected];
(703) 571-0070.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, the Office of the
Inspector General (OIG) is establishing a new Component-wide system of
records titled CIG-30, Data Analytics Platform. The records collected
will assist with the performance of audits, evaluations,
investigations, and reviews of DoD programs, functions, and
individuals. The system consists of both electronic and paper records
and will be used by the Office of the Inspector General to maintain
records about individuals who are subject and/or associated with a
matter involved in DoD OIG audits, evaluations, investigations, and
reviews.
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 pursuant to 5 U.S.C. 553(b)(1)-(3), (c), and (e). This proposed
rule explains why an exemption is being claimed for this system of
records and invites public comment, which DoD will consider before the
issuance of a final rule implementing the exemption.
The OATSD(PCLT) proposes to modify 32 CFR part 310 to add a new
Privacy Act exemption rule for the CIG-30, ``Data Analytics Platform,''
system of records. The DoD OIG proposes this exemption because some of
its records may contain classified national security information, and
as a result, notice, access, amendment, and disclosure (to include
accounting for those records) to an individual, and 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 OIG 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 pursuant to 5 U.S.C.
[[Page 43229]]
552a(k)(1), 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 OIG also proposes to exempt this system of records because
these records support the conduct of criminal law enforcement
activities, and certain requirements of the Privacy Act may interfere
with the effective execution of these activities, and undermine good
order and discipline. The Privacy Act, pursuant to 5 U.S.C. 552a(j)(2),
authorizes agencies with a principal law enforcement function
pertaining to the enforcement of criminal laws (including activities of
prosecutors, courts, etc.) to claim an exemption for systems of records
that contain information identifying criminal offenders and alleged
offenders, information compiled for the purpose of criminal
investigation, or reports compiled for the purpose of criminal law
enforcement proceedings. Additionally, pursuant to 5 U.S.C. 552a(k)(2),
agencies may exempt a system of records from certain provisions of the
Privacy Act if it contains investigatory material compiled for law
enforcement purposes, other than materials within the scope of 5 U.S.C.
552a(j)(2). The DoD OIG is proposing to claim exemptions from several
provisions of the Privacy Act, including various access, amendment,
disclosure of accounting, and certain record-keeping and notice
requirements, pursuant to 5 U.S.C. 552a(j)(2) and 552a(k)(2), to
prevent the harms articulated in this rule from occurring.
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 CIG-30, ``Data
Analytics Platform'' is 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 rule is not a significant
regulatory action under these executive orders.
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. DoD 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 may take effect no earlier than 60 calendar days after
Congress receives the rule report or the rule is published in the
Federal Register, whichever is later. This rule is not a ``major rule''
as defined by 5 U.S.C. 804(2).
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1532) requires agencies to assess anticipated costs and benefits
before issuing any rule whose mandates may result in the expenditure by
State, local and tribal governments in the aggregate, or by the private
sector, in any one year of $100 million in 1995 dollars, updated
annually for inflation. This rule will not mandate any requirements for
State, local, or tribal governments, nor will it affect private sector
costs.
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 has certified that this rule is not subject
to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not,
if promulgated, have a significant economic impact on a substantial
number of small entities. This rule is concerned only with the
administration of Privacy Act systems of records within the DoD.
Therefore, the Regulatory Flexibility Act, as amended, does not require
DoD to prepare a regulatory flexibility analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
The Paperwork Reduction Act (PRA) was enacted to minimize the
paperwork burden for individuals; small businesses; educational and
nonprofit institutions; Federal contractors; State, local and tribal
governments; and other persons resulting from the collection of
information by or for the federal government. The Act requires agencies
obtain approval from the Office of Management and Budget before using
identical questions to collect information from ten or more persons.
This rule does not impose reporting or recordkeeping requirements on
the public.
Executive Order 13132, ``Federalism''
It has been determined that this 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 affects the distribution of
power and responsibilities between the federal government and Indian
tribes. This 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 310.28 is amended by adding paragraph (c)(10) to read as
follows:
Sec. 310.28 Office of the Inspector General (OIG) exemptions.
* * * * *
(c) * * *
(10) System identifier and name: CIG-30, ``Data Analytics
Platform.''
(i) Exemptions: This system of records is exempt from 5 U.S.C. 552a
(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1); (e)(2); (e)(3);
(e)(4)(G), (H), and(I); (e)(5); (e)(8); (f) and (g) of the Privacy Act
pursuant to 5 U.S.C. 552a(j)(2). 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 to the extent the records are
subject to exemption pursuant to 5 U.S.C. 552a(k)(1) and (k)(2).
[[Page 43230]]
(ii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), and (k)(2).
(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 (j)(2). Records in this system of records may contain
investigatory material compiled for criminal law enforcement purposes
to include information identifying criminal offenders and alleged
offenders, information compiled for the purpose of criminal
investigation, or reports compiled during criminal law enforcement
proceedings. Application of exemption (j)(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 prosecutorial efforts by permitting the record subject
and other persons to whom he might disclose the records to avoid
criminal penalties or disciplinary measures; 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.
(2) Exemption (k)(1). Records in this system of records may contain
information that is properly classified pursuant to executive order.
Application of exemption (k)(1) 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.
(3) 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
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 which may impede those actions or investigations; 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.
(B) Subsection (c)(4), (d)(3) and (4). These subsections are
inapplicable to the extent that an exemption is being claimed from
subsections (d)(1) and (2). Accordingly, exemption from subsection
(c)(4) is claimed pursuant to (j)(2) and exemptions from subsections
(d)(3) and (d)(4) are claimed pursuant to (j)(2), (k)(1), and (k)(2).
(C) Subsection (e)(1). In the collection of information for
investigatory and 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 disciplinary and prosecutorial
determinations. Additionally, records within this system may be
properly classified pursuant to executive order. Accordingly,
application of exemptions (j)(2), (k)(1), and (k)(2) may be necessary.
(D) Subsection (e)(2). To collect information from the subject
individual could serve notice that he or she is the subject of a
criminal investigation and thereby present a serious impediment to such
investigations. Collection of information only from the individual
accused of criminal activity or misconduct could also subvert discovery
of relevant evidence and subvert the course of justice. Accordingly,
application of exemption (j)(2) may be necessary.
(E) Subsection (e)(3). To inform individuals as required by this
subsection could reveal the existence of a criminal investigation and
compromise investigative efforts. Accordingly, application of exemption
(j)(2) may be necessary.
(F) Subsection (e)(4)(G) and (H). These subsections are
inapplicable to the extent exemption is claimed from subsections (d)(1)
and (2).
(G) Subsection (e)(4)(I). To the extent that this provision is
construed to require more detailed disclosure than the broad, generic
information currently published in the system notice, an exemption from
this provision is necessary to protect the confidentiality of sources
of information and to protect the privacy and physical safety of
witnesses and informants. Accordingly, application of exemptions
(j)(2), (k)(1), and (k)(2) may be necessary.
(H) Subsection (e)(5). It is often impossible to determine in
advance if investigatory records contained in this system are accurate,
relevant, timely and complete, but, in the interests of effective law
enforcement, it is necessary to retain this information to maintain an
accurate record of the investigatory activity to preserve the integrity
of the investigation and satisfy various Constitutional and evidentiary
requirements, such as mandatory disclosure of potentially exculpatory
information in the investigative file to a defendant. It is also
necessary to retain this information to aid in establishing patterns of
activity and provide investigative leads. With the passage of time,
seemingly irrelevant or untimely information may acquire new
significance as further investigation brings new details to light and
the accuracy of such information can only be determined through
judicial processes. Accordingly, application of exemption (j)(2) may be
necessary.
(I) Subsection (e)(8). To serve notice could give persons
sufficient warning to evade investigative efforts. Accordingly,
application of exemption (j)(2) may be necessary.
(J) Subsection (f). The agency's rules are inapplicable to those
portions of the system that are exempt. Accordingly, application of
exemptions (j)(2), (k)(1), and (k)(2) may be necessary.
(K) Subsection (g). This subsection is inapplicable to the extent
that the system is exempt from other specific subsections of the
Privacy Act. Accordingly, an exemption from subsection (g) is claimed
pursuant to (j)(2).
(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.
* * * * *
[[Page 43231]]
Dated: July 14, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2022-15456 Filed 7-19-22; 8:45 am]
BILLING CODE 5001-06-P