[Federal Register: May 9, 2003 (Volume 68, Number 90)]
[Rules and Regulations]
[Page 24880-24881]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09my03-16]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 311
[Administrative Instruction 81]
Privacy Act; Implementation
AGENCY: Office of the Secretary of Defense, DoD.
ACTION: Final rule.
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SUMMARY: The Office of the Secretary of Defense is exempting a system
of records in its inventory of systems of records pursuant to the
Privacy Act of 1974 (5 U.S.C. 552a), as amended.
EFFECTIVE DATE: January 28, 2003.
FOR FURTHER INFORMATION CONTACT: Mr. Dan Cragg at (703) 601-4722.
SUPPLEMENTARY INFORMATION: The proposed rule was published on November
29, 2002, at 67 FR 71119-71120. One comment was received which has
prompted a change in the final rule. The rule, as changed, is being
adopted as final.
One public comment was received where the commenter expressed
concern that the wording of the proposed rule appears to impute
criminality to those individuals receiving background checks and
appears to suspend the rights of those individuals interacting with the
DoD. We disagree. As provided by law, the rule provides a basis for the
Department to exempt specified records from certain provisions of the
Privacy Act. It does not serve as a basis for making judgments
regarding individuals on whom the Department conducts background
checks. Neither does it act to suspend any rights the individual may be
entitiled to under DoD administered programs. The commenter observes
that the rule is unecessary and redundant. We disagree. The purpose of
the rule is to preserve and protect the identity of a source who has
been promised confidentiality in return for the information he or she
is providing the Department. Because only a specific exemption can be
claimed for the records, the Department must establish the exemption in
order to accomplish the desired objective. And finally, the commenter
expresses the view that the scope of the rule is overly broad. We
agree. The principal purpose of the claimed exemption is to protect the
identity of a confidential source. We therefore have revised the rule
so that the exemption is only being claimed for those provisions of the
Act that are supportive of the overally purpose of the exemption.
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that Privacy Act rules for the Department of
Defense are not significant rules. The rules do 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 this Executive order.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)
It has been determined that Privacy Act rules for the Department of
Defense do not have significant economic impact on a substantial number
of small entities because they are concerned only with the
administration of Privacy Act systems of records within the Department
of Defense.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined that Privacy Act rules for the Department of
Defense impose 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 the Privacy Act rulemaking 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
[[Page 24881]]
and that such rulemaking will not significantly or uniquely affect
small governments.
Executive Order 13132, ``Federalism''
It has been determined that the Privacy Act rules for the
Department of Defense do not have federalism implications. The rules do
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.
List of Subjects in 32 CFR Part 311
Privacy.
0
Accordingly, 32 CFR part 311 is amended to read as follows:
PART 311--OSD PRIVACY PROGRAM
0
1. The authority citation for 32 CFR part 311 continues to read as
follows:
Authority: Pub.L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
0
2. Section 311.8, is amended by adding paragraph (c)(14) to read as
follows:
Sec. 311.8 Procedures for exemptions.
* * * * *
(c) Specific exemptions. * * *
(14) System identifier and name: DHRA 02, PERSEREC Research Files.
(i) Exemption: (A) Investigative 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 may be exempt pursuant to 5 U.S.C.
552a(k)(5), but only to the extent that such material would reveal the
identity of a confidential source.
(B) Therefore, portions of this system may be exempt pursuant to 5
U.S.C. 552a(k)(5) from the following subsections of 5 U.S.C.
552a(c)(3), (d), and (e)(1).
(ii) Authority: 5 U.S.C. 552a(k)(5).
(iii) Reasons: (A) From subsection (c)(3) and (d) when access to
accounting disclosures and access to or amendment of records would
cause the identity of a confidential source to be revealed. Disclosure
of the source's identity not only will result in the Department
breaching the promise of confidentiality made to the source but it will
impair the Department's future ability to compile investigatory
material for the purpose of determining suitability, eligibility, or
qualifications for Federal civilian employment, Federal contracts, or
access to classified information. Unless sources can be assured that a
promise of confidentiality will be honored, they will be less likely to
provide information considered essential to the Department in making
the required determinations.
(B) From (e)(1) because in the collection of information for
investigatory purposes, it is not always possible to determine the
relevance and necessity of particular information in the early stages
of the investigation. In some cases, it is only after the information
is evaluated in light of other information that its relevance and
necessity becomes clear. Such information permits more informed
decision-making by the Department when making required suitability,
eligibility, and qualification determinations.
Dated: April 28, 2003.
Patricia L. Toppings,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 03-11574 Filed 5-8-03; 8:45 am]
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