80 FR 58607 - Privacy Act of 1974; Implementation

DEPARTMENT OF DEFENSE
Office of the Secretary

Federal Register Volume 80, Issue 189 (September 30, 2015)

Page Range		58607-58608
FR Document		2015-24791

The Office of the Secretary of Defense (OSD) is exempting those records contained in DPFPA 07, entitled ``Counterintelligence Management Information System (CIMIS),'' pertaining to investigatory material compiled for counterintelligence and law enforcement purposes (under (k)(2) of the Act), other than material within the scope of subsection (j)(2) of the Privacy Act to enable the protection of identities of confidential sources who might not otherwise come forward and who furnished information under an express promise that the sources' identity would be held in confidence. The exemption will allow DoD to provide protection against notification of investigatory material including certain reciprocal investigations which might alert a subject to the fact that an investigation of that individual is taking place, and the disclosure of which would weaken the on-going investigation, reveal investigatory techniques, and place confidential informants in jeopardy who furnished information under an express promise that the sources' identity would be held in confidence. Further, requiring OSD to grant access to records and amend these records would unfairly impede the investigation of allegations of unlawful activities. To require OSD to confirm or deny the existence of a record pertaining to a requesting individual may in itself provide an answer to that individual relating to an on-going investigation. The investigation of possible unlawful activities would be jeopardized by agency rules requiring verification of record, disclosure of the record to the subject, and record amendment procedures.

Federal Register, Volume 80 Issue 189 (Wednesday, September 30, 2015)

[Federal Register Volume 80, Number 189 (Wednesday, September 30, 2015)]
[Rules and Regulations]
[Pages 58607-58608]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-24791]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 311

[Docket ID: DoD-2015-OS-0077]


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary, DoD.

ACTION: Direct final rule with request for comments.

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

SUMMARY: The Office of the Secretary of Defense (OSD) is exempting 
those records contained in DPFPA 07, entitled ``Counterintelligence 
Management Information System (CIMIS),'' pertaining to investigatory 
material compiled for counterintelligence and law enforcement purposes 
(under (k)(2) of the Act), other than material within the scope of 
subsection (j)(2) of the Privacy Act to enable the protection of 
identities of confidential sources who might not otherwise come forward 
and who furnished information under an express promise that the 
sources' identity would be held in confidence. The exemption will allow 
DoD to provide protection against notification of investigatory 
material including certain reciprocal investigations which might alert 
a subject to the fact that an investigation of that individual is 
taking place, and the disclosure of which would weaken the on-going 
investigation, reveal investigatory techniques, and place confidential 
informants in jeopardy who furnished information under an express 
promise that the sources' identity would be held in confidence. 
Further, requiring OSD to grant access to records and amend these 
records would unfairly impede the investigation of allegations of 
unlawful activities. To require OSD to confirm or deny the existence of 
a record pertaining to a requesting individual may in itself provide an 
answer to that individual relating to an on-going investigation. The 
investigation of possible unlawful activities would be jeopardized by 
agency rules requiring verification of record, disclosure of the record 
to the subject, and record amendment procedures.

DATES: The rule will be effective on December 9, 2015 unless adverse 
comments are received by November 30, 2015. If adverse comment is 
received, the Department of Defense will publish a timely withdrawal of 
the rule in the Federal Register.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:
     Federal Rulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Office of the Deputy Chief 
Management Officer, Directorate of Oversight and Compliance, Regulatory 
and Audit Matters Office, 9010 Defense Pentagon, Washington, DC 20301-
9010.
    Instructions: All submissions received must include the agency name 
and docket number 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 http://www.regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Ms. Cindy Allard at (571) 372-0461.

SUPPLEMENTARY INFORMATION: This direct final rule makes changes to the 
Office of the Secretary Privacy Program rules. These changes will allow 
the Department to add an exemption rule to the Office of the Secretary 
of Defense Privacy Program rules that will exempt applicable Department 
records and/or material from certain portions of the Privacy Act.
    This rule is being published as a direct final rule as the 
Department of Defense does not expect to receive any adverse comments, 
and so a proposed rule is unnecessary.

Direct Final Rule and Significant Adverse Comments

    DoD has determined this rulemaking meets the criteria for a direct 
final rule because it involves non-substantive changes dealing with 
DoD's management of its Privacy Programs. DoD expects no opposition to 
the changes and no significant adverse comments. However, if DoD 
receives a significant adverse comment, the Department will withdraw 
this direct final rule by publishing a notice in the Federal Register. 
A significant adverse comment is one that explains: (1) Why the direct 
final rule is inappropriate, including challenges to the rule's 
underlying premise or approach; or (2) why the direct final rule will 
be ineffective or unacceptable without a change. In determining whether 
a comment necessitates withdrawal of this direct final rule, DoD will 
consider whether it warrants a substantive response in a notice and 
comment process.

[[Page 58608]]

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

    It has been determined that Privacy Act rules for the Department of 
Defense are not significant rules. This rule does not (1) Have an 
annual effect on the economy of $100 million or more or adversely 
affect in a material way the economy; a sector of the economy; 
productivity; competition; jobs; the environment; public health or 
safety; or State, local, or tribal governments or communities; (2) 
Create a serious inconsistency or otherwise interfere with an action 
taken or planned by another Agency; (3) Materially alter the budgetary 
impact of entitlements, grants, user fees, or loan programs, or the 
rights and obligations of recipients thereof; or (4) Raise novel legal 
or policy issues arising out of legal mandates, the President's 
priorities, or the principles set forth in these Executive orders.

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

    It has been determined that this Privacy Act rule for the 
Department of Defense does not have significant economic impact on a 
substantial number of small entities because it is concerned only with 
the administration of Privacy Act systems of records within the 
Department of Defense. A Regulatory Flexibility Analysis is not 
required.

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

    It has been determined that this Privacy Act rule for the 
Department of Defense imposes no information requirements beyond the 
Department of Defense and that the information collected within the 
Department of Defense is necessary and consistent with 5 U.S.C. 552a, 
known as the Privacy Act of 1974.

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

    It has been determined that this Privacy Act rule for the 
Department of Defense 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 this rulemaking will not significantly or uniquely affect small 
governments.

Executive Order 13132, ``Federalism''

    It has been determined that this Privacy Act rule for the 
Department of Defense 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. Therefore, no Federalism assessment is required.

List of Subjects in 32 CFR Part 311

    Privacy.

    Accordingly, 32 CFR part 311 is amended to read as follows:

PART 311--OFFICE OF THE SECRETARY OF DEFENSE AND JOINT STAFF 
PRIVACY PROGRAM

0
1. The authority citation for 32 CFR part 311 continues to read as 
follows:

    Authority:  5 U.S.C. 522a.


0
2. Section 311.8 is amended by adding paragraph (c)(25) to read as 
follows:


Sec.  311.8  Procedures for exemptions.

* * * * *
    (c) * * *
    (25) System identifier and name: DPFPA 07, Counterintelligence 
Management Information System (CIMIS).
    (i) Exemptions: Portions of this system that fall within 5 U.S.C. 
552a (k)(2) are exempt from the following provisions of 5 U.S.C. 552a, 
section (c)(3); (d); (e)(1); (e)(4) (G) through (I); and (f) of the 
Act, as applicable.
    (ii) Authority: 5 U.S.C. 552a(k)(2).
    (iii) Reasons:
    (A) From subsections (c)(3) because making available to a record 
subject the accounting of disclosure from records concerning him or her 
would specifically reveal any investigative interest in the individual. 
Revealing this information could reasonably be expected to compromise 
ongoing efforts to investigate a known or suspected offender by 
notifying the record subject that he or she is under investigation. 
This information could also permit the record subject to take measures 
to impede the investigation, e.g., destroy evidence, intimidate 
potential witnesses, or flee the area to avoid or impede the 
investigation.
    (B) From subsection (d) because these provisions concern individual 
access to and amendment of certain records contained in this system, 
including counterintelligence, law enforcement, and investigatory 
records. Compliance with these provisions could alert the subject of an 
investigation of the fact and nature of the investigation, and/or the 
investigative interest of agencies; compromise sensitive information 
related to national security; interfere with the overall 
counterintelligence and investigative process by leading to the 
destruction of evidence, improper influencing of witnesses, fabrication 
of testimony, and/or flight of the subject; could identify a 
confidential source or disclose information which would constitute an 
unwarranted invasion of another's personal privacy; reveal a sensitive 
investigation or constitute a potential danger to the health or safety 
of law enforcement personnel, confidential informants, and witnesses. 
Amendment of these records would interfere with ongoing 
counterintelligence investigations and analysis activities and impose 
an excessive administrative burden by requiring investigations, 
analyses, and reports to be continuously reinvestigated and revised.
    (C) From subsection (e)(1) because it is not always possible to 
determine what information is relevant and necessary at an early stage 
in a given investigation. Also, because Pentagon Force Protection 
Agency and other agencies may not always know what information about a 
known or suspected offender may be relevant to for the purpose of 
conducting an operational response.
    (D) From subsections (e)(4)(G) through (I) (Agency Requirements) 
because portions of this system are exempt from the access and 
amendment provisions of subsection (d).
    (E) From subsection (f) because requiring the Agency to grant 
access to records and establishing agency rules for amendment of 
records would compromise the existence of any criminal, civil, or 
administrative enforcement activity. To require the confirmation or 
denial of the existence of a record pertaining to a requesting 
individual may in itself provide an answer to that individual relating 
to the existence of an on-going investigation.
    Counterintelligence investigations would be jeopardized by agency 
rules requiring verification of the record, disclosure of the record to 
the subject, and record amendment procedures.

    Dated: July 31, 2015.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2015-24791 Filed 9-29-15; 8:45 am]
 BILLING CODE 5001-06-P

Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations 58607

(C) Instructions on all available modes DEPARTMENT OF DEFENSE • Federal Rulemaking Portal: http://
or states of the device; www.regulations.gov. Follow the
(D) Instructions on all safety features Office of the Secretary instructions for submitting comments.
of the device; and • Mail: Department of Defense, Office
32 CFR Part 311
(E) Validated methods and of the Deputy Chief Management
instructions for reprocessing/ Officer, Directorate of Oversight and
[Docket ID: DoD–2015–OS–0077] Compliance, Regulatory and Audit
disinfecting any reusable components;
Matters Office, 9010 Defense Pentagon,
(iii) A detailed summary of the Privacy Act of 1974; Implementation
Washington, DC 20301–9010.
mechanical compatibility testing
including: Office of the Secretary, DoD.
AGENCY: Instructions: All submissions received
Direct final rule with request for
ACTION: must include the agency name and
(A) A table with a complete list of
comments. docket number for this Federal Register
compatible catheters tested
(manufacturer trade name and model document. The general policy for
SUMMARY: The Office of the Secretary of comments and other submissions from
number), and Defense (OSD) is exempting those members of the public is to make these
(B) A table with detailed test results, records contained in DPFPA 07, entitled submissions available for public
including type of test, acceptance ‘‘Counterintelligence Management viewing on the Internet at http://
criteria, and test results (i.e., pass for Information System (CIMIS),’’ www.regulations.gov as they are
meeting acceptance criteria); pertaining to investigatory material received without change, including any
(iv) A detailed summary of the in vivo compiled for counterintelligence and personal identifiers or contact
testing including: law enforcement purposes (under (k)(2) information.
of the Act), other than material within
(A) A table with a complete list of the scope of subsection (j)(2) of the FOR FURTHER INFORMATION CONTACT: Ms.
compatible catheters used during testing Privacy Act to enable the protection of Cindy Allard at (571) 372–0461.
(manufacturer trade name and model identities of confidential sources who
number); SUPPLEMENTARY INFORMATION: This
might not otherwise come forward and
(B) Adverse events encountered direct final rule makes changes to the
who furnished information under an
pertinent to use of the device under use express promise that the sources’ Office of the Secretary Privacy Program
conditions; identity would be held in confidence. rules. These changes will allow the
The exemption will allow DoD to Department to add an exemption rule to
(C) A detailed summary of the device- the Office of the Secretary of Defense
and procedure-related complications; provide protection against notification
of investigatory material including Privacy Program rules that will exempt
and applicable Department records and/or
certain reciprocal investigations which
(D) A summary of study outcomes and material from certain portions of the
might alert a subject to the fact that an
endpoints. Information pertinent to the Privacy Act.
investigation of that individual is taking
fluoroscopy times/exposure for the This rule is being published as a
place, and the disclosure of which
procedure, patient, and operator direct final rule as the Department of
would weaken the on-going
fluoroscopic exposure; Defense does not expect to receive any
investigation, reveal investigatory
(v) Other labeling items: techniques, and place confidential adverse comments, and so a proposed
(A) A detailed summary of pertinent informants in jeopardy who furnished rule is unnecessary.
non-clinical testing information: EMC, information under an express promise
that the sources’ identity would be held Direct Final Rule and Significant
mechanical, electrical, and sterilization Adverse Comments
of device and components; in confidence. Further, requiring OSD to
grant access to records and amend these DoD has determined this rulemaking
(B) A detailed summary of the device
records would unfairly impede the meets the criteria for a direct final rule
technical parameters; and
investigation of allegations of unlawful because it involves non-substantive
(C) An expiration date/shelf life and activities. To require OSD to confirm or changes dealing with DoD’s
storage conditions for the sterile deny the existence of a record management of its Privacy Programs.
accessories; and pertaining to a requesting individual DoD expects no opposition to the
(vi) When available, and according to may in itself provide an answer to that changes and no significant adverse
the timeframe included in the PMS individual relating to an on-going comments. However, if DoD receives a
protocol agreed upon with FDA, provide investigation. The investigation of significant adverse comment, the
a detailed summary of the PMS data possible unlawful activities would be Department will withdraw this direct
including: jeopardized by agency rules requiring final rule by publishing a notice in the
(A) Updates to the labeling to verification of record, disclosure of the Federal Register. A significant adverse
accurately reflect outcomes or necessary record to the subject, and record comment is one that explains: (1) Why
modifications based upon data collected amendment procedures. the direct final rule is inappropriate,
during the PMS experience, and DATES: The rule will be effective on including challenges to the rule’s
December 9, 2015 unless adverse underlying premise or approach; or (2)
(B) Inclusion of results and adverse
comments are received by November 30, why the direct final rule will be
events associated with utilization of the
mstockstill on DSK4VPTVN1PROD with RULES

2015. If adverse comment is received, ineffective or unacceptable without a
device during the PMS.
the Department of Defense will publish change. In determining whether a
Dated: September 23, 2015. a timely withdrawal of the rule in the comment necessitates withdrawal of
Leslie Kux, Federal Register. this direct final rule, DoD will consider
Associate Commissioner for Policy. ADDRESSES: You may submit comments, whether it warrants a substantive
[FR Doc. 2015–24624 Filed 9–29–15; 8:45 am] identified by docket number and title, response in a notice and comment
BILLING CODE 4164–01–P by any of the following methods: process.

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58608 Federal Register / Vol. 80, No. 189 / Wednesday, September 30, 2015 / Rules and Regulations

Executive Order 12866, ‘‘Regulatory substantial direct effects on the States, investigative process by leading to the
Planning and Review’’ and Executive on the relationship between the destruction of evidence, improper
Order 13563, ‘‘Improving Regulation National Government and the States, or influencing of witnesses, fabrication of
and Regulatory Review’’ on the distribution of power and testimony, and/or flight of the subject;
It has been determined that Privacy responsibilities among the various could identify a confidential source or
Act rules for the Department of Defense levels of government. Therefore, no disclose information which would
are not significant rules. This rule does Federalism assessment is required. constitute an unwarranted invasion of
not (1) Have an annual effect on the List of Subjects in 32 CFR Part 311 another’s personal privacy; reveal a
economy of $100 million or more or sensitive investigation or constitute a
adversely affect in a material way the Privacy.
potential danger to the health or safety
economy; a sector of the economy; Accordingly, 32 CFR part 311 is of law enforcement personnel,
productivity; competition; jobs; the amended to read as follows: confidential informants, and witnesses.
environment; public health or safety; or Amendment of these records would
State, local, or tribal governments or PART 311—OFFICE OF THE
interfere with ongoing
communities; (2) Create a serious SECRETARY OF DEFENSE AND JOINT
STAFF PRIVACY PROGRAM counterintelligence investigations and
inconsistency or otherwise interfere analysis activities and impose an
with an action taken or planned by
■ 1. The authority citation for 32 CFR excessive administrative burden by
another Agency; (3) Materially alter the
part 311 continues to read as follows: requiring investigations, analyses, and
budgetary impact of entitlements,
grants, user fees, or loan programs, or Authority: 5 U.S.C. 522a. reports to be continuously
the rights and obligations of recipients reinvestigated and revised.
■ 2. Section 311.8 is amended by adding
thereof; or (4) Raise novel legal or policy paragraph (c)(25) to read as follows: (C) From subsection (e)(1) because it
issues arising out of legal mandates, the is not always possible to determine
President’s priorities, or the principles § 311.8 Procedures for exemptions. what information is relevant and
set forth in these Executive orders. * * * * * necessary at an early stage in a given
Public Law 96–354, ‘‘Regulatory (c) * * * investigation. Also, because Pentagon
Flexibility Act’’ (5 U.S.C. Chapter 6) (25) System identifier and name: Force Protection Agency and other
DPFPA 07, Counterintelligence agencies may not always know what
It has been determined that this Management Information System information about a known or suspected
Privacy Act rule for the Department of (CIMIS). offender may be relevant to for the
Defense does not have significant (i) Exemptions: Portions of this
economic impact on a substantial purpose of conducting an operational
system that fall within 5 U.S.C. 552a response.
number of small entities because it is (k)(2) are exempt from the following
concerned only with the administration provisions of 5 U.S.C. 552a, section (D) From subsections (e)(4)(G) through
of Privacy Act systems of records within (c)(3); (d); (e)(1); (e)(4) (G) through (I); (I) (Agency Requirements) because
the Department of Defense. A and (f) of the Act, as applicable. portions of this system are exempt from
Regulatory Flexibility Analysis is not (ii) Authority: 5 U.S.C. 552a(k)(2). the access and amendment provisions of
required. (iii) Reasons: subsection (d).
Public Law 96–511, ‘‘Paperwork (A) From subsections (c)(3) because (E) From subsection (f) because
Reduction Act’’ (44 U.S.C. Chapter 35) making available to a record subject the requiring the Agency to grant access to
It has been determined that this accounting of disclosure from records records and establishing agency rules
Privacy Act rule for the Department of concerning him or her would for amendment of records would
Defense imposes no information specifically reveal any investigative compromise the existence of any
requirements beyond the Department of interest in the individual. Revealing this criminal, civil, or administrative
Defense and that the information information could reasonably be enforcement activity. To require the
collected within the Department of expected to compromise ongoing efforts confirmation or denial of the existence
Defense is necessary and consistent to investigate a known or suspected of a record pertaining to a requesting
with 5 U.S.C. 552a, known as the offender by notifying the record subject
individual may in itself provide an
Privacy Act of 1974. that he or she is under investigation.
answer to that individual relating to the
This information could also permit the
Section 202, Public Law 104–4, existence of an on-going investigation.
record subject to take measures to
‘‘Unfunded Mandates Reform Act’’ impede the investigation, e.g., destroy Counterintelligence investigations
It has been determined that this evidence, intimidate potential would be jeopardized by agency rules
Privacy Act rule for the Department of witnesses, or flee the area to avoid or requiring verification of the record,
Defense does not involve a Federal impede the investigation. disclosure of the record to the subject,
mandate that may result in the (B) From subsection (d) because these and record amendment procedures.
expenditure by State, local and tribal provisions concern individual access to Dated: July 31, 2015.
governments, in the aggregate, or by the and amendment of certain records
Aaron Siegel,
private sector, of $100 million or more contained in this system, including
counterintelligence, law enforcement, Alternate OSD Federal Register Liaison
and that this rulemaking will not
and investigatory records. Compliance Officer, Department of Defense.
significantly or uniquely affect small
mstockstill on DSK4VPTVN1PROD with RULES

with these provisions could alert the [FR Doc. 2015–24791 Filed 9–29–15; 8:45 am]
governments.
subject of an investigation of the fact BILLING CODE 5001–06–P
Executive Order 13132, ‘‘Federalism’’ and nature of the investigation, and/or
It has been determined that this the investigative interest of agencies;
Privacy Act rule for the Department of compromise sensitive information
Defense does not have federalism related to national security; interfere
implications. This rule does not have with the overall counterintelligence and

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Document Created: 2015-12-15 09:32:07
Document Modified: 2015-12-15 09:32:07

Category		Regulatory Information
Collection		Federal Register
sudoc Class		AE 2.7: GS 4.107: AE 2.106:
Publisher		Office of the Federal Register, National Archives and Records Administration
Section		Rules and Regulations
Action		Direct final rule with request for comments.
Dates		The rule will be effective on December 9, 2015 unless adverse comments are received by November 30, 2015. If adverse comment is received, the Department of Defense will publish a timely withdrawal of the rule in the Federal Register.
Contact		Ms. Cindy Allard at (571) 372-0461.
FR Citation		80 FR 58607

80 FR 58607 - Privacy Act of 1974; Implementation

DEPARTMENT OF DEFENSEOffice of the Secretary

Federal Register Volume 80, Issue 189 (September 30, 2015)

DEPARTMENT OF DEFENSE
Office of the Secretary