[Federal Register Volume 88, Number 23 (Friday, February 3, 2023)]
[Proposed Rules]
[Pages 7375-7378]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-02191]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2022-OS-0142]
RIN 0790-AL62


Privacy Act of 1974; Implementation

AGENCY: Office of the Assistant to the Secretary of Defense for 
Privacy, Civil Liberties, and Transparency (OATSD(PCLT)), Department of 
Defense (DoD).

ACTION: Proposed rule.

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

SUMMARY: The OATSD(PCLT) is giving notice of a proposed rulemaking for 
an existing component-wide system of records pursuant to the Privacy 
Act of 1974 titled CIG-16, ``Inspector General Administrative 
Investigation Records,'' which was modified and reissued on May 31, 
2022. In this rulemaking, the Department proposes to amend the existing 
rule for CIG-16 in order to exempt portions of this system of records 
from certain provisions of the Privacy Act because of national security 
and law enforcement requirements; to avoid interference during the 
conduct of criminal, civil, or administrative actions or 
investigations; and to protect the identity of confidential sources 
incident to Federal employment, military service, contract, and 
security clearance determinations.

DATES: Send comments on or before April 4, 2023.

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 Inspector 
General (OIG) modified and reissued a system of records titled, 
``Defense Case Activity Tracking System (D-CATS),'' CIG-16, on May 31, 
2022 (87 FR 32391). The system of records was retitled, ``Inspector 
General Administrative Investigation Records (IGAIR).'' IGAIR is 
critical to the DoD OIG's management and oversight of DoD programs and 
activities and is used for managing cases, storing information, 
responding to requests for information, and fulfilling mandatory 
reporting requirements. This system contains records of DoD OIG mission 
activities such as: the identification, referral, and investigation of 
DoD Hotline complaints; administrative investigations of both military 
and civilian senior officials accused of misconduct; oversight and 
investigation of whistleblower reprisal cases against Service members, 
DoD contractor employees, and DoD civilian employees (appropriated and 
non-appropriated fund); and improper command referrals of Service 
member mental health evaluations.
    The system consists of both electronic and paper records and will 
be used by the OIG to maintain records about individuals who are 
subject and/or associated with a matter involved in DoD OIG's oversight 
of investigations referenced above.

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 DoD OIG previously published a final rule exempting CIG-16 from 
certain provisions of the Privacy Act under 5 U.S.C. 552a(k)(2) and (5) 
on June 10, 1992 (57 FR 24547). The OATSD(PCLT) now proposes to modify 
32 CFR part 310 to update the existing Privacy Act exemption rule for 
CIG-16 to change the system name and to exempt portions of this system 
of records from certain provisions of the Privacy Act because 
information in this system of records may also fall within the scope of 
the following Privacy Act exemptions: 5 U.S.C. 552a(j)(2) and (k)(1). 
As referenced in the CIG-16 system of records notice published on May 
31, 2022 (87 FR 32391), this rulemaking seeks public comment on (1) the 
previously claimed exemption under 5 U.S.C. 552a(j)(2) for which a 
rulemaking was not completed and (2) on the addition of an exemption 
under

[[Page 7376]]

5 U.S.C. 552a(k)(1). Additionally, this rulemaking seeks public comment 
on extending the exemptions claimed under 5 U.S.C. 552a(k)(2) and (5) 
to additional requirements of the Privacy Act, specifically, 5 U.S.C. 
552a(e)(4)(I), which requires a description of the categories of 
sources of records in the system of records notice.
    The DoD OIG proposes this exemption because some 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 recordkeeping 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 recordkeeping 
and notice requirements pursuant to 5 U.S.C. 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 recordkeeping 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 modified system of records for CIG-16 was 
published in the Federal Register on May 31, 2022 (87 FR 32391).

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 (5 U.S.C. 804(2))

    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(a) of the Unfunded Mandates Reform Act of 1995 (UMRA) 
(2 U.S.C. 1532(a)) 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. 601 et 
seq.)

    The ATSD(PCLT) has certified that this rule is not subject to the 
Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 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. 3501 et seq.)

    The Paperwork Reduction Act (PRA) (44 U.S.C. 3501 et seq.) 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''

    Executive Order 13132 establishes certain requirements that an 
agency must meet when it promulgates a rule that imposes substantial 
direct requirement costs on State and local governments, preempts State 
law, or otherwise has federalism implications. This rule will not have 
a substantial effect on State and local governments.

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 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:

[[Page 7377]]

PART 310--PROTECTION OF PRIVACY AND ACCESS TO AND AMENDEMENT OF 
INDIVIDUAL RECORDS UNDER THE PRIVACY ACT OF 1974

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 revising paragraph (c)(4) to read as 
follows:


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

* * * * *
    (c) * * *
    (4) System identifier and name. CIG-16, Inspector General 
Administrative Investigation Records (IGAIR).
    (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) and 
(H); and (f) of the Privacy Act to the extent the records are subject 
to exemption pursuant to 5 U.S.C. 552a(k)(1), (k)(2), and (k)(5). This 
system of records is also exempt from 5 U.S.C. 552a(e)(4)(I) to the 
extent the records are subject to exemption pursuant to 5 U.S.C. 
552a(k)(1).
    (ii) Authority. 5 U.S.C. 552a(j)(2), (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 (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.
    (4) 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) 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), (k)(2), and 
(k)(5).
    (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), (k)(2), and (k)(5) 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

[[Page 7378]]

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) and (k)(1) 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), (k)(2) and (k)(5) 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.
* * * * *

    Dated: January 30, 2023.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2023-02191 Filed 2-2-23; 8:45 am]
BILLING CODE 5001-06-P