[Federal Register Volume 88, Number 182 (Thursday, September 21, 2023)]
[Rules and Regulations]
[Pages 65129-65131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-20434]


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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 Secretary of Defense (OSD), Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: The Department of Defense (Department or DoD) is issuing a 
final rule to amend its regulations to exempt portions of the system of 
records titled CIG-16, ``Inspector General Administrative Investigation 
Records,'' (IGAIR) from certain provisions of the Privacy Act of 1974.

DATES: This rule will be effective on October 23, 2023.

FOR FURTHER INFORMATION CONTACT: Ms. Rahwa Keleta, 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:

Discussion of Comments and Changes

    The proposed rule published in the Federal Register (88 FR 7375-
7378) on February 3, 2023. Comments were accepted for 60 days until 
April 4, 2023. One comment was received which stated support for the 
exemption rule.

I. Background

    In finalizing this rule, OSD is exempting portions of this system 
of records titled, CIG-16, ``Inspector General Administrative 
Investigation Records,'' from certain provisions of the Privacy Act of 
1974. This system contains records of DoD Office of Inspector General 
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.

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).
    OSD is amending 32 CFR 310.28(c)(4) 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).

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 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 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 et seq.) because it 
would not, if promulgated, have a significant economic impact on

[[Page 65130]]

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 amended as follows:

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), (k)(2), and (k)(5).
    (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, 
including 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

[[Page 65131]]

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). Accordingly, application of exemptions (j)(2), (k)(1), (k)(2), 
and (k)(5) may be necessary.
    (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), (k2), and (k)(5) 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 of records being made 
available under compulsory legal process 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: September 15, 2023.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2023-20434 Filed 9-20-23; 8:45 am]
BILLING CODE 5001-06-P