Privacy Act Systems of Records, 57163-57167 [2010-23320]
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Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Rules and Regulations
A small business guide on complying
with fruit, vegetable, and specialty crop
marketing agreements and orders may
be viewed at: https://www.ams.usda.gov/
AMSv1.0/ams.fetchTemplate
Data.do?template=TemplateN&page=
MarketingOrdersSmallBusinessGuide.
Any questions about the compliance
guide should be sent to Antoinette
Carter at the previously mentioned
address in the FOR FURTHER INFORMATION
CONTACT section.
After consideration of all relevant
material presented, including the
information and recommendation
submitted by the Board and other
available information, it is hereby found
that this rule, as hereinafter set forth,
will tend to effectuate the declared
policy of the Act.
Pursuant to 5 U.S.C. 553, it is also
found and determined that good cause
exists for not postponing the effective
date of this rule until 30 days after
publication in the Federal Register
because the 2010–2011 fiscal period
begins October 1, 2010, and the
marketing order requires that the rate of
assessment for each fiscal period apply
to all assessable tart cherries handled
during such fiscal period and the Board
incurs expenses on a continuing basis.
Further, handlers are aware of this
action which was unanimously
recommended by the Board at a public
meeting. Also, a 60-day comment period
was provided for the proposed rule.
List of Subjects in 7 CFR Part 930
Marketing agreements, Reporting and
recordkeeping requirements, Tart
cherries.
For the reasons set forth in the
preamble, 7 CFR part 930 is amended as
follows:
PART 930—TART CHERRIES GROWN
IN THE STATES OF MICHIGAN, NEW
YORK, PENNSYLVANIA, OREGON,
UTAH, WASHINGTON, AND
WISCONSIN
1. The authority citation for 7 CFR
part 930 continues to read as follows:
■
Authority: 7 U.S.C. 601–674.
2. Section 930.200 is revised to read
as follows:
■
jdjones on DSK8KYBLC1PROD with RULES
§ 930.200
On and after October 1, 2010, the
assessment rate imposed on handlers
shall be $0.0075 per pound of tart
cherries grown in the production area
and utilized in the production of tart
cherry products. Included in this rate is
$0.005 per pound of cherries to cover
the cost of the research and promotion
program and $0.0025 per pound of
13:28 Sep 17, 2010
OFFICE OF THE DIRECTOR OF
NATIONAL INTELLIGENCE
Dated: September 13, 2010.
David R. Shipman,
Acting Administrator, Agricultural Marketing
Service.
32 CFR Part 1701
[FR Doc. 2010–23336 Filed 9–17–10; 8:45 am]
BILLING CODE 3410–02–P
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Privacy Act Systems of Records
Office of the Director of
National Intelligence.
ACTION: Final rule.
AGENCY:
The Office of the Director of
National Intelligence (ODNI) is issuing a
final rule exempting fourteen (14) new
systems of records from subsections
(c)(3); (d)(1), (2), (3), (4); (e)(1) and
(e)(4)(G), (H), (I); and (f) of the Privacy
Act, pursuant to 5 U.S.C. 552a(k). The
ODNI published a notice and a
proposed rule implementing these
exemptions on April 2, 2010. The
enumerated exemptions will be invoked
on a case-by-case basis, as necessary to
preclude interference with
investigatory, intelligence and
counterterrorism functions and
responsibilities of the ODNI. This
document addresses comments received
regarding the proposed rule as applied
to the fourteen new systems of records.
DATES: This final rule is effective
September 20, 2010.
FOR FURTHER INFORMATION CONTACT: Mr.
John F. Hackett, Director, Information
Management, 703–275–2215.
SUPPLEMENTARY INFORMATION:
SUMMARY:
DEPARTMENT OF THE TREASURY
Internal Revenue Service
26 CFR Parts 1 and 602
[Docket No. TD–9497]
RIN 1545–BI97
Guidance Regarding Deferred
Discharge of Indebtedness Income of
Corporations and Deferred Original
Issue Discount Deductions
Correction
In rule document 2010–20060
beginning on page 49394 in the issue of
Friday, August 13, 2010 make the
following corrections:
1. On page 49397, in the third
column, the heading should read ‘‘2.
Exception for Distributions and
Charitable Contributions Consistent
with Historical Practice —In General’’.
2. On page 49400, in the third
column, in the second full paragraph, in
line six ‘‘occurring prior to August 11,
2010 by taking a return position
consistent with these provisions’’ should
read ‘‘occurring prior to August 11,
2010, by taking a return position
consistent with these provisions’’.
§1.108(i)–0T
[Corrected]
3. On page 49402, in the second
column, (b)(2)(i), on the fifth line, ‘‘2010
However, an electing corporation ’’
should read ‘‘2010. However, an electing
corporation’’.
§1.108(i)–1T
Assessment rate.
VerDate Mar<15>2010
cherries to cover administrative
expenses.
57163
[Corrected]
4. On page 49403, in the first column,
(b)(2)(B)(iv), in line six ‘‘deemed
dividend all the earnings and’’ should
read ‘‘deemed dividend the all earnings
and’’.
[FR Doc. C1–2010–20060 Filed 9–17–10; 8:45 am]
BILLING CODE 1505–01–D
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Background
On April 2, 2010, the Office of the
Director of National Intelligence (ODNI)
published notice of fourteen new
Privacy Act systems of records:
Manuscript, Presentation and Resume
Review Records (ODNI–01), Executive
Secretary Action Management System
Records (ODNI–02), Public Affairs
Office Records (ODNI–03), Office of
Legislative Affairs Records (ODNI–04),
ODNI Guest Speaker Records (ODNI–
05), Office of General Counsel Records
(ODNI–06), Analytic Resources Catalog
(ODNI–07), Intelligence Community
Customer Registry Records, (ODNI–09),
EEO and Diversity Office Records
(ODNI–10), Office of Protocol Records
(ODNI–11), IC Security Clearance and
Access Approval Repository (ODNI–12),
Security Clearance Reform Research
Records (ODNI–13), Civil Liberties and
Privacy Office Complaint Records
(ODNI–14), National Intelligence
Council Consultation Records (ODNI–
15). These systems of records contain
records that range from Unclassified to
Top Secret. Accordingly, in conjunction
with publication of these systems
notices, the ODNI initiated a rulemaking
to exempt the systems, in relevant part,
from various provisions of the Privacy
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Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Rules and Regulations
Act (enumerated above), pursuant to
exemption authority afforded the head
of the agency by subsection (j) of the
Privacy Act. The systems notices and
proposed exemption rule are published
at 75 FR 16853 and 16698.
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Public Comments
The ODNI received comments on its
proposed rule and notice of fourteen
systems of records from the Electronic
Privacy Information Center (EPIC).
EPIC’s concerns and ODNI’s responses
are set forth below. The full text of
EPIC’s comments are posted at that
organization’s Web site, https://
www.EPIC.org. In general, EPIC
questions the appropriateness of the
ODNI’s proposal on national security
grounds to exempt these systems of
records from various provisions of the
Privacy Act that embody fundamental
tenets of information privacy.
In light of EPIC’s comments, the ODNI
re-examined the systems notices, the
nature of the records maintained, and
the exemptions proposed. ODNI is
sensitive to EPIC’s view that the
fourteen new system notices on their
face do not obviously implicate
intelligence equities, including the
counterterrorism mission of one of
ODNI’s major components, the National
Counterterrorism Center (NCTC).
However we conclude that EPIC has not
considered the possible inclusion of
classified records in these systems,
which the exemptions invoked are
intended to protect.
ODNI has determined that the
comments received do not warrant
changing the proposed exemptions or
systems notices prior to
implementation. Read in conjunction
with the ODNI’s Exemption Policies, as
set forth in section 1701.20 of the
ODNI’s Privacy Act Regulations,
published at 32 CFR part 1701, the
fourteen new systems notices reflect
that ODNI seeks to serve, whenever
feasible, the dual imperatives of
maximizing individual record subjects’
participation in maintenance of the
records and of protecting important
intelligence equities.
Detailed Response
EPIC’s comments reflect concern
about ODNI’s action to exempt the new
systems of records from the accounting,
access, amendment, redress and
accuracy provisions of the Privacy Act,
as well as from the requirements to
establish and make public the
procedures by which individuals may
seek access to records about themselves.
EPIC observes that the referenced
provisions of the Privacy Act fulfill the
important objective of promoting
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accountability, responsibility, oversight
and openness with respect to the federal
government’s maintenance of personal
information. The ODNI also supports
fair information principles and, as a
matter of published policy, honors these
principles to the full extent
circumstances permit.
ODNI maintains that its proposed rule
is consistent with privacy principles for
the following reasons:
1. ODNI policy is to apply exemptions
narrowly.
EPIC’s main concern is that ODNI will
rely on the stated exemptions to exempt
apparently non-sensitive records on a
blanket basis, thus denying record
subjects important provisions of the
Privacy Act.
On initial review, and as confirmed
on re-examination, we have determined
that these systems of records may
contain sensitive records. Therefore, in
practice, claiming the exemption is a
prophylactic measure enabling the
ODNI to protect intelligence equities
(e.g., sources, methods, subjects of
intelligence interest) when national
security considerations dictate.
However, record subjects will still be
able to obtain access to non-sensitive
records. Each published system notice
expansively describes notification
procedures, record access procedures,
contesting record procedures and record
source categories. In addition, each
systems notice references the ODNI
Privacy Act Regulation, which also fully
describes these procedures. 32 CFR Part
1701.
Published ODNI policy on exercising
exemptions provides that an asserted
exemption applies only to records that
meet the exemption criteria, and that,
even then, discretion is retained to
supersede the exemption where
complying with a request for access
would not interfere with or adversely
affect a counterterrorism or law
enforcement interest, or otherwise
violate applicable law.1
The ODNI Office of Information
Management (IM) conducts access/
disclosure reviews under the Privacy
Act and the Freedom of Information
Act, as well as pre-publication review
pursuant to IC elements’ secrecy
1 See § 1701.20 of ODNI’s Privacy Act Regulation
(32 CFR).
Additionally, in its Notice to Establish Systems
of Records (75 FR 16853, April 2, 2010), ODNI
indicated in the Supplementary Information section
of the Notice that it would apply the exemption
only as specifically necessary, and not as a blanket
exclusion: ‘‘To protect classified and sensitive
personnel or law enforcement information
contained in these systems, the Director of National
Intelligence is proposing to exempt these systems
of records from certain portions of the Privacy Act
where necessary, as permitted by law.’’
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agreements. IM personnel are trained
classification specialists who conduct
detailed reviews to ensure record
subject/requester access to information
in accordance with this policy and fair
information principles, to include an
accounting of disclosures under
subsection (c)(3).
The systems notices, read in
conjunction with the Privacy Act
regulation, show that ODNI intends to
provide record subjects access to
records about them to the extent feasible
on a case-by-case basis, and not to rely
on a blanket assertion of an exemption
to preclude access.
2. Material may be classified for
national security reasons pursuant to
Executive Order.
As noted, the fourteen new system
notices potentially include records
specifically authorized under criteria
established by an Executive order to be
kept secret in the interest of national
defense or foreign policy or that are in
fact properly classified pursuant to such
Executive order. Such records are
exempt from the operation of Section
552 of Title 5 of the United States Code,
see 5 U.S.C. 552(b)(1), and subsection
(k)(1) of the Privacy Act specifically
contemplates exemption under this
circumstance.
EPIC cites the Public Affairs Office
Records, the Executive Secretary Action
Management System Records and the
Civil Liberties and Privacy Office
Complaint Records as examples of
ODNI’s excessive use of exemption
authority. Our review has determined
that each of these systems of records, as
well as the other eleven, could contain
classified records retrieved by a record
subject’s name or unique identifier.
The exemption permits ODNI to
protect access to the classified material
and thereby prevent compromise of
sensitive national security-related
information. ODNI policy would be to
provide the record subject access to the
entirety of non-classified records
(subject to the ‘‘mosaic’’ analysis),2 as
well as to portions of classified records
that, upon line-by-line review, have
been determined not to implicate
national security interests.
3. No per se exclusion from redress.
EPIC comments that ODNI
inappropriately seeks to bar record
subjects from challenging denial of an
access request. The Privacy Act,
subsection (g)(1)(B), does not permit
agencies to exempt themselves from
access challenges; ODNI agrees that
2 Non-classified data points that, taken together,
create a mosaic disclosing a matter properly
classifiable under an Executive Order would be
withheld from access.
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Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Rules and Regulations
precluding individuals from challenging
the basis of a denial to a request for
access to information would violate
information fairness principles.
Subsection (g)(3)(A) of the Privacy Act
provides for de novo review of such
denial, including in camera examination
of records to ensure consistency with
the claimed basis for exemption from
access, i.e., that the records reflect a
national security interest subject to
classification under Executive order, or
that access would disclose to the subject
the identity of a confidential source of
information in the record (judgments
contemplated by subsections (k)(1), (2)
and (5) of the Act). ODNI does not seek
to deny record subjects the basic right
to challenge access determinations.
However, EPIC’s position that ODNI
should afford redress for all amendment
denials demands the impractical result
of requiring the agency to permit
‘‘correction’’ of records to which it
properly has denied the subject access
based on expert judgments regarding
national security or witness/source
identification. This practice would
afford individuals ‘‘back-door’’ access to
records via amendment challenges.
Accordingly, ODNI will narrowly
construe the proposed exemption from
redress to apply only to denials to
amend exempt records (i.e., records that
are classified, or determined to be not
disclosable under other provisions of
subsection (k)).
4. ODNI does not use these systems of
records for decision-making about
record subjects.
EPIC articulates a concern that
subjects’ inability to access and amend
exempt records undermines the
fundamental principle (under
subsection (e)(5) of the Privacy Act) that
records used in making agency
determinations about record subjects
must be sufficiently accurate, relevant,
timely and complete to ensure fairness
to the individual.
ODNI does not in fact propose to
exempt its fourteen new SORNs from
the (e)(5) requirement. Indeed,
subsection (k) of the Privacy Act does
not permit exemption from subsection
(e)(5).3 Additionally, records
maintained in these systems are not
used in personalized agency
determinations of the kind for which
access and amendment rights are
intended to ensure data accuracy and
relevance. With the possible exception
of the Civil Liberties and Privacy Office
Complaint Records, the Equal
Employment Opportunity and Diversity
Office Records and the Office of General
Counsel records, the recently published
notices reflect agency internal
administrative functions, but not
activities ‘‘affecting the rights, benefits,
entitlements or opportunities (including
employment) of the individual).’’ 4 By
and large, the systems at issue permit
the agency to track communications and
external relations using the record
subjects’ name as an easy ‘‘handle.’’
They are record-keeping files, not
decision-making files. Where claims are
involved (civil liberties/privacy,
disability accommodations, or actions
against the agency), it is the record
subject who determines what facts to
report in the first instance, obviating
his/her need for a check on accuracy.
Nonetheless, the claimant/litigant
would receive all official administrative
or court filings, and obtain access to
other non-exempt records in the
pertinent system.
5. ‘‘Necessary and relevant’’ is a fluid
standard, properly subject to exemption.
The provision from which ODNI does
seek exemption is (e)(1): ‘‘Maintain [in
agency] records only such information
about an individual as is relevant and
necessary to accomplish a purpose of
the agency required to be accomplished
by statute or by executive order of the
President.’’ The purposes which these
systems serve are authorized by the
National Security Act of 1947 as
amended by the Intelligence Reform and
Terrorism Prevention Act of 2004, and
generally reflect routine agency
functions. Because of the transactional
nature of most of these systems,
relevance is a function of happenstance,
i.e., whatever communication is
received or transmitted, and can not be
determined once and for all time. The
information collected will not likely be
the same for every individual who is the
subject of a record in the system. With
respect to claims requiring investigation
(e.g., Civil Liberties/Privacy complaints)
relevance often can not be determined
until all materials have been collected
and analyzed. Moreover, because these
systems of records generally are housekeeping-type files, and not likely to be
disclosed outside the agency or serve for
decision-making purposes, the
importance of ‘‘relevance’’ as a data
quality criterion is diminished.
6. Exemptions do not curtail subjects’
access to complaint status or
disposition.
3 Subsection (k) states that the head of any agency
may promulgate rules to exempt any system of
records with the agency from subsection (c)(3). (d).
(e)(1), (e)(4)(G)(H), and (I) and (f) of that section.
4 Office of Management and Budget, Privacy Act
Implementation, Guidelines and Responsibilities,
Standards of Accuracy, Subsection (e)(5), 40 FR
28948, 28964 (July 9, 1975).
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EPIC is especially troubled by ODNI’s
proposal to exempt the Civil Liberties
and Privacy Office Complaint Records
(alleging violations of civil liberties or
privacy arising from an ODNI or IC
program or activity), and argues that:
[A]n individual who submitted a
complaint would not be able to view any
records pertaining to his complaint, such as
records of review, investigation, or
acknowledgement or disposition of
allegations received. A complainant would
be left without any means to inquire about
the status of his complaint or to help
facilitate the resolution of his complaint.
EPIC posits that, by virtue merely of
their being maintained in the exempt
system, all records would be shielded
from the subject’s access, including the
agency’s acknowledgment of receipt of
the complaint and any disposition of the
complaint. However, complainants
routinely receive acknowledgement of
receipt of their complaints, a copy of
which is maintained as part of the
complainants’ official records in the
noticed Privacy Act system of records.
Similarly, complainants receive notice
of resolution or disposition of their
cases, with as much specificity as is
feasible under the circumstances. The
Civil Liberties and Privacy Office
articulates in writing why the allegation
is, or is not, sustained by the facts as
presented by the complainant and as
investigated by the agency, and what the
ODNI’s follow-on action may be (for
example, remedying a flaw or gap in
agency process that the complaint has
brought to light). The written
disposition is also maintained as part of
the official record in the noticed Privacy
Act system of records. ODNI would
provide access to these
acknowledgement and disposition
records at the complainant’s request.
The complainant would obtain access to
other portions of the complaint file as
well, to the extent they do not implicate
national security interests, and do not
reveal the identity of individuals
providing statements or information to
the investigation pursuant to assurances
of confidentiality.
ODNI believes that current policies
address EPIC’s concern that ‘‘the
complainant is left without any means
to inquire about the status of his
complaint.’’ Complainants may at any
time amend their statements, provide
additional facts or seek explanation
about the operative law, regulation or
policy allegedly violated. Indeed, the
exemption framework does not preclude
a complainant from inquiring about, or
learning of, the status of his complaint.
Nor does it preclude the ODNI from
seeking additional input from claimants.
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Final Rule: Implementation of
Exemption Rule and Systems Notices
After consideration of the public
comments, the ODNI has determined to
issue the proposed exemption rule in
final form and to implement the
fourteen new systems of records without
change. The exemptions proposed for
the fourteen noticed systems of records
are necessary and appropriate to protect
intelligence equities undergirding
ODNI’s mission and functions and
narrowly applied, they do so consistent
with privacy principles. By restrictively
construing the exemptions to apply only
to records that satisfy thresholds
articulated in subsection (k), ODNI
achieves the goal of balancing
intelligence-related equities with fair
information principles and values.
recipients thereof; or raise legal or
policy issues arising out of legal
mandates, the President’s priorities or
the principles set forth in the Executive
Order. Accordingly, further regulatory
evaluation is not required.
Regulatory Flexibility Act
This rule affects only the manner in
which ODNI collects and maintains
information about individuals. ODNI
certifies that this rulemaking does not
impact small entities and that analysis
under the Regulatory flexibility Act, 5
U.S.C. 601–612, is not required.
Executive Order 13132, Federalism
Small Entity Inquiries
The Small Business Regulatory
enforcement Fairness Act (SBREFA) of
1996 requires the ODNI to comply with
small entity requests for information
and advice about compliance with
statutes and regulations within the
ODNI jurisdiction. Any small entity that
has a question regarding this document
may address it to the information
contact listed above. Further
information regarding SBREFA is
available on the Small Business
Administration’s web page at https://
www.sba.gov/advo/laws/law-lib.html.
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Paperwork Reduction Act
The Paperwork Reduction Act of 1995
944 U.S.C. 3507(d)) requires that the
ODNI consider the impact of paperwork
and other burdens imposed on the
public associated with the collection of
information. There are no information
collection requirements associated with
this rule and therefore no analysis of
burden is required.
Executive Order 12866, Regulatory
Planning and Review
This rule is not a ‘‘significant
regulatory action,’’ within the meaning
of Executive Order 12866. This rule will
not adversely affect the economy or a
sector of the economy in a material way;
will not create inconsistency with or
interfere with other agency action; will
not materially alter the budgetary
impact of entitlements, grants, fees or
loans or the right and obligations of
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Unfunded Mandates
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, 109 Stat. 48 (Mar. 22, 1995),
requires Federal agencies to assess the
effects of certain regulatory actions on
State, local and tribal governments, and
the private sector. This rule imposes no
Federal mandate on any State, local or
tribal government or on the private
sector. Accordingly, no UMRA analysis
of economic and regulatory alternatives
is required.
Executive Order 13132 requires
agencies to examine the implications for
the distribution of power and
responsibilities among the various
levels of government resulting from
their rules. ODNI concludes that this
rule does not affect the rights, roles and
responsibilities of the States, involves
no preemption of State law and does not
limit state policymaking discretion. This
rule has no federalism implications as
defined by the Executive Order.
Environmental Impact
This rulemaking will not have a
significant effect on the human
environment under the provisions of the
National Environmental Policy Act of
1969 (NEPA), 42 U.S.C. 4321–4347.
Energy Impact
This rulemaking is not a major
regulatory action under the provisions
of the Energy Policy and Conservation
Act (EPCA), Public Law 94–163) as
amended, 42 U.S.C. 6362.
List of Subjects in 32 CFR Part 1701
Records and Privacy Act.
For the reasons set forth above, ODNI
amends 32 CFR part 1701 as follows:
■
PART 1701—ADMINISTRATION OF
RECORDS UNDER THE PRIVACY ACT
OF 1974
1. The authority citation for part 1701
continues to read as follows:
■
Authority: 50 U.S.C. 401–442; 5 U.S.C.
552a.
Subpart B—[AMENDED]
2. Add § 1701.24 to subpart B to read
as follows:
■
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§ 1701.24 Exemption of Office of the
Director of National Intelligence (ODNI)
systems of records.
(a) The ODNI exempts the following
systems of records from the
requirements of subsections (c)(3);
(d)(1),(2),(3) and (4); (e)(1);
(e)(4)(G),(H),(I); and (f) of the Privacy
Act to the extent that information in the
system is subject to exemption pursuant
subsections (k)(1), (k)(2) or (k)(5) of the
Act as noted in the individual systems
notices:
(1) Manuscript, Presentation and
Resume Review Records (ODNI–01).
(2) Executive Secretary Action
Management System Records (ODNI–
02).
(3) Public Affairs Office Records
(ODNI–03).
(4) Office of Legislative Affairs
Records (ODNI–04).
(5) ODNI Guest Speaker Records
(ODNI–05).
(6) Office of General Counsel Records
(ODNI–06).
(7) Analytic Resources Catalog
(ODNI–07).
(8) Intelligence Community Customer
Registry (ODNI–09).
(9) EEO and Diversity Office Records
(ODNI–10).
(10) Office of Protocol Records
(ODNI–11).
(11) IC Security Clearance and Access
Approval Repository (ODNI–12).
(12) Security Clearance Reform
Research Records (ODNI–13).
(13) Civil Liberties and Privacy Office
Complaint Records (ODNI–14).
(14) National Intelligence Council
Records (ODNI–15).
(b) Exemption of records in theses
systems from any or all of the
enumerated requirements may be
necessary for the following reasons:
(1) From subsection (c)(3) (accounting
of disclosures) because an accounting of
disclosures from records concerning the
record subject would specifically reveal
an intelligence or investigative interest
on the part of the ODNI or recipient
agency and could result in release of
properly classified national security or
foreign policy information.
(2) From subsections (d)(1), (2), (3)
and (4) (record subject’s right to access
and amend records) because affording
access and amendment rights could
alert the record subject to the
investigative interest of intelligence or
law enforcement agencies or
compromise sensitive information
classified in the interest of national
security. In the absence of a national
security basis for exemption, records in
this system may be exempted from
access and amendment to the extent
necessary to honor promises of
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Federal Register / Vol. 75, No. 181 / Monday, September 20, 2010 / Rules and Regulations
confidentiality to persons providing
information concerning a candidate for
position. Inability to maintain such
confidentiality would restrict the free
flow of information vital to a
determination of a candidate’s
qualifications and suitability.
(3) From subsection (e)(1) (maintain
only relevant and necessary records)
because it is not always possible to
establish relevance and necessity before
all information is considered and
evaluated in relation to an intelligence
concern. In the absence of a national
security basis for exemption under
subsection (k)(1), records in this system
may be exempted from the relevance
requirement pursuant to subsection
(k)(5) because it is not possible to
determine in advance what exact
information may assist in determining
the qualifications and suitability of a
candidate for position. Seemingly
irrelevant details, when combined with
other data, can provide a useful
composite for determining whether a
candidate should be appointed.
(4) From subsections (e)(4)(G) and (H)
(publication of procedures for notifying
subjects of the existence of records
about them and how they may access
records and contest contents) because
the system is exempted from subsection
(d) provisions regarding access and
amendment, and from the subsection (f)
requirement to promulgate agency rules.
Nevertheless, the ODNI has published
notice concerning notification, access,
and contest procedures because it may
in certain circumstances determine it
appropriate to provide subjects access to
all or a portion of the records about
them in a system of records.
(5) From subsection (e)(4)(I)
(identifying sources of records in the
system of records) because identifying
sources could result in disclosure of
properly classified national defense or
foreign policy information, intelligence
sources and methods, and investigatory
techniques and procedures.
Notwithstanding its proposed
exemption from this requirement, ODNI
identifies record sources in broad
categories sufficient to provide general
notice of the origins of the information
it maintains in its systems of records.
(6) From subsection (f) (agency rules
for notifying subjects to the existence of
records about them, for accessing and
amending records, and for assessing
fees) because the system is exempt from
subsection (d) provisions regarding
access and amendment of records by
record subjects. Nevertheless, the ODNI
has published agency rules concerning
notification of a subject in response to
his request if any system of records
named by the subject contains a record
VerDate Mar<15>2010
13:28 Sep 17, 2010
Jkt 220001
pertaining to him and procedures by
which the subject may access or amend
the records. Notwithstanding
exemption, the ODNI may determine it
appropriate to satisfy a record subject’s
access request.
Dated: September 10, 2010.
John F. Kimmons,
Lieutenant General, USA, Director of the
Intelligence Staff.
[FR Doc. 2010–23320 Filed 9–17–10; 8:45 am]
BILLING CODE P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 165
[Docket No. USCG–2010–0842]
RIN 1625–AA00
Safety Zone; CLS Fall Championship
Hydroplane Race, Lake Sammamish,
WA
Coast Guard, DHS.
Temporary final rule.
AGENCY:
ACTION:
The Coast Guard is
establishing a temporary safety zone on
the waters of Lake Sammamish, WA for
the Composite Laminate Specialties
(CLS) Fall Championship Hydroplane
Race. This action is necessary to ensure
public safety from the intrinsic dangers
associated with high-speed races while
ensuring unencumbered access for
rescue personnel in the event of an
emergency. During the enforcement
period, no person or vessel will be
allowed to enter the safety zone without
the permission of the Captain of the Port
or Designated Representative.
DATES: This rule is effective from 9 a.m.
on October 1, 2010, through 7 p.m. on
October 3, 2010.
ADDRESSES: Documents indicated in this
preamble as being available in the
docket are part of docket USCG–2010–
0842 and are available online by going
to https://www.regulations.gov, inserting
USCG–2010–0842 in the ‘‘Keyword’’
box, and then clicking ‘‘Search.’’ They
are also available for inspection or
copying at the Docket Management
Facility (M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this temporary
rule, call or e-mail LTJG Ashley M.
Wanzer, Sector Puget Sound Waterways
SUMMARY:
PO 00000
Frm 00007
Fmt 4700
Sfmt 4700
57167
Management Division, Coast Guard;
telephone 206–217–6175, e-mail
SectorSeattleWWM@uscg.mil. If you
have questions on viewing the docket,
call Renee V. Wright, Program Manager,
Docket Operations, telephone 202–366–
9826.
SUPPLEMENTARY INFORMATION:
Regulatory Information
The Coast Guard is issuing this
temporary final rule without prior
notice and opportunity to comment
pursuant to authority under section 4(a)
of the Administrative Procedure Act
(APA) (5 U.S.C. 553(b)). This provision
authorizes an agency to issue a rule
without prior notice and opportunity to
comment when the agency for good
cause finds that those procedures are
‘‘impracticable, unnecessary, or contrary
to the public interest.’’ Under 5 U.S.C.
553(b)(B), the Coast Guard finds that
good cause exists for not publishing a
notice of proposed rulemaking (NPRM)
with respect to this rule because to do
so would be impracticable since the
Hydroplane Races would be over by the
time the notice could be published and
comments taken.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register. In addition to the reasons
stated above, this rule is intended to
ensure the safety of the event
participants, spectators and other
waterway users; thus any delay in the
rule’s effective date would cause a
safety hazard to the public.
Basis and Purpose
This temporary safety zone is
necessary to ensure the safety of
participants, vessels and spectators from
hazards associated with high-speed
hydroplane races. Hydroplane races
have the potential to result in serious
injuries or fatalities. This rule is
intended to restrict vessels, vessel
operators, and swimmers from entering
the designated hydroplane race area
during times of enforcement of this
zone.
Discussion of Rule
Hydroplane races pose significant
risks to participants, spectators and the
boating public because of the large
number of spectators, and vessel
congestion occurring in the vicinity of
the hydroplane race course. This rule
establishes a safety zone on Lake
Sammamish, WA encompassed by all
waters south to land from a line starting
at 47° 33.810′ N. 122° 04.810′ W. then
east to 47° 33.810′ N. 122° 03.674′ W.
This temporary safety zone is necessary
E:\FR\FM\20SER1.SGM
20SER1
]]>Agencies
[Federal Register Volume 75, Number 181 (Monday, September 20, 2010)]
[Rules and Regulations]
[Pages 57163-57167]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-23320]
=======================================================================
-----------------------------------------------------------------------
OFFICE OF THE DIRECTOR OF NATIONAL INTELLIGENCE
32 CFR Part 1701
Privacy Act Systems of Records
AGENCY: Office of the Director of National Intelligence.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Office of the Director of National Intelligence (ODNI) is
issuing a final rule exempting fourteen (14) new systems of records
from subsections (c)(3); (d)(1), (2), (3), (4); (e)(1) and (e)(4)(G),
(H), (I); and (f) of the Privacy Act, pursuant to 5 U.S.C. 552a(k). The
ODNI published a notice and a proposed rule implementing these
exemptions on April 2, 2010. The enumerated exemptions will be invoked
on a case-by-case basis, as necessary to preclude interference with
investigatory, intelligence and counterterrorism functions and
responsibilities of the ODNI. This document addresses comments received
regarding the proposed rule as applied to the fourteen new systems of
records.
DATES: This final rule is effective September 20, 2010.
FOR FURTHER INFORMATION CONTACT: Mr. John F. Hackett, Director,
Information Management, 703-275-2215.
SUPPLEMENTARY INFORMATION:
Background
On April 2, 2010, the Office of the Director of National
Intelligence (ODNI) published notice of fourteen new Privacy Act
systems of records: Manuscript, Presentation and Resume Review Records
(ODNI-01), Executive Secretary Action Management System Records (ODNI-
02), Public Affairs Office Records (ODNI-03), Office of Legislative
Affairs Records (ODNI-04), ODNI Guest Speaker Records (ODNI-05), Office
of General Counsel Records (ODNI-06), Analytic Resources Catalog (ODNI-
07), Intelligence Community Customer Registry Records, (ODNI-09), EEO
and Diversity Office Records (ODNI-10), Office of Protocol Records
(ODNI-11), IC Security Clearance and Access Approval Repository (ODNI-
12), Security Clearance Reform Research Records (ODNI-13), Civil
Liberties and Privacy Office Complaint Records (ODNI-14), National
Intelligence Council Consultation Records (ODNI-15). These systems of
records contain records that range from Unclassified to Top Secret.
Accordingly, in conjunction with publication of these systems notices,
the ODNI initiated a rulemaking to exempt the systems, in relevant
part, from various provisions of the Privacy
[[Page 57164]]
Act (enumerated above), pursuant to exemption authority afforded the
head of the agency by subsection (j) of the Privacy Act. The systems
notices and proposed exemption rule are published at 75 FR 16853 and
16698.
Public Comments
The ODNI received comments on its proposed rule and notice of
fourteen systems of records from the Electronic Privacy Information
Center (EPIC). EPIC's concerns and ODNI's responses are set forth
below. The full text of EPIC's comments are posted at that
organization's Web site, https://www.EPIC.org. In general, EPIC
questions the appropriateness of the ODNI's proposal on national
security grounds to exempt these systems of records from various
provisions of the Privacy Act that embody fundamental tenets of
information privacy.
In light of EPIC's comments, the ODNI re-examined the systems
notices, the nature of the records maintained, and the exemptions
proposed. ODNI is sensitive to EPIC's view that the fourteen new system
notices on their face do not obviously implicate intelligence equities,
including the counterterrorism mission of one of ODNI's major
components, the National Counterterrorism Center (NCTC). However we
conclude that EPIC has not considered the possible inclusion of
classified records in these systems, which the exemptions invoked are
intended to protect.
ODNI has determined that the comments received do not warrant
changing the proposed exemptions or systems notices prior to
implementation. Read in conjunction with the ODNI's Exemption Policies,
as set forth in section 1701.20 of the ODNI's Privacy Act Regulations,
published at 32 CFR part 1701, the fourteen new systems notices reflect
that ODNI seeks to serve, whenever feasible, the dual imperatives of
maximizing individual record subjects' participation in maintenance of
the records and of protecting important intelligence equities.
Detailed Response
EPIC's comments reflect concern about ODNI's action to exempt the
new systems of records from the accounting, access, amendment, redress
and accuracy provisions of the Privacy Act, as well as from the
requirements to establish and make public the procedures by which
individuals may seek access to records about themselves. EPIC observes
that the referenced provisions of the Privacy Act fulfill the important
objective of promoting accountability, responsibility, oversight and
openness with respect to the federal government's maintenance of
personal information. The ODNI also supports fair information
principles and, as a matter of published policy, honors these
principles to the full extent circumstances permit.
ODNI maintains that its proposed rule is consistent with privacy
principles for the following reasons:
1. ODNI policy is to apply exemptions narrowly.
EPIC's main concern is that ODNI will rely on the stated exemptions
to exempt apparently non-sensitive records on a blanket basis, thus
denying record subjects important provisions of the Privacy Act.
On initial review, and as confirmed on re-examination, we have
determined that these systems of records may contain sensitive records.
Therefore, in practice, claiming the exemption is a prophylactic
measure enabling the ODNI to protect intelligence equities (e.g.,
sources, methods, subjects of intelligence interest) when national
security considerations dictate. However, record subjects will still be
able to obtain access to non-sensitive records. Each published system
notice expansively describes notification procedures, record access
procedures, contesting record procedures and record source categories.
In addition, each systems notice references the ODNI Privacy Act
Regulation, which also fully describes these procedures. 32 CFR Part
1701.
Published ODNI policy on exercising exemptions provides that an
asserted exemption applies only to records that meet the exemption
criteria, and that, even then, discretion is retained to supersede the
exemption where complying with a request for access would not interfere
with or adversely affect a counterterrorism or law enforcement
interest, or otherwise violate applicable law.\1\
---------------------------------------------------------------------------
\1\ See Sec. 1701.20 of ODNI's Privacy Act Regulation (32 CFR).
Additionally, in its Notice to Establish Systems of Records (75
FR 16853, April 2, 2010), ODNI indicated in the Supplementary
Information section of the Notice that it would apply the exemption
only as specifically necessary, and not as a blanket exclusion: ``To
protect classified and sensitive personnel or law enforcement
information contained in these systems, the Director of National
Intelligence is proposing to exempt these systems of records from
certain portions of the Privacy Act where necessary, as permitted by
law.''
---------------------------------------------------------------------------
The ODNI Office of Information Management (IM) conducts access/
disclosure reviews under the Privacy Act and the Freedom of Information
Act, as well as pre-publication review pursuant to IC elements' secrecy
agreements. IM personnel are trained classification specialists who
conduct detailed reviews to ensure record subject/requester access to
information in accordance with this policy and fair information
principles, to include an accounting of disclosures under subsection
(c)(3).
The systems notices, read in conjunction with the Privacy Act
regulation, show that ODNI intends to provide record subjects access to
records about them to the extent feasible on a case-by-case basis, and
not to rely on a blanket assertion of an exemption to preclude access.
2. Material may be classified for national security reasons
pursuant to Executive Order.
As noted, the fourteen new system notices potentially include
records specifically authorized under criteria established by an
Executive order to be kept secret in the interest of national defense
or foreign policy or that are in fact properly classified pursuant to
such Executive order. Such records are exempt from the operation of
Section 552 of Title 5 of the United States Code, see 5 U.S.C.
552(b)(1), and subsection (k)(1) of the Privacy Act specifically
contemplates exemption under this circumstance.
EPIC cites the Public Affairs Office Records, the Executive
Secretary Action Management System Records and the Civil Liberties and
Privacy Office Complaint Records as examples of ODNI's excessive use of
exemption authority. Our review has determined that each of these
systems of records, as well as the other eleven, could contain
classified records retrieved by a record subject's name or unique
identifier.
The exemption permits ODNI to protect access to the classified
material and thereby prevent compromise of sensitive national security-
related information. ODNI policy would be to provide the record subject
access to the entirety of non-classified records (subject to the
``mosaic'' analysis),\2\ as well as to portions of classified records
that, upon line-by-line review, have been determined not to implicate
national security interests.
---------------------------------------------------------------------------
\2\ Non-classified data points that, taken together, create a
mosaic disclosing a matter properly classifiable under an Executive
Order would be withheld from access.
---------------------------------------------------------------------------
3. No per se exclusion from redress.
EPIC comments that ODNI inappropriately seeks to bar record
subjects from challenging denial of an access request. The Privacy Act,
subsection (g)(1)(B), does not permit agencies to exempt themselves
from access challenges; ODNI agrees that
[[Page 57165]]
precluding individuals from challenging the basis of a denial to a
request for access to information would violate information fairness
principles. Subsection (g)(3)(A) of the Privacy Act provides for de
novo review of such denial, including in camera examination of records
to ensure consistency with the claimed basis for exemption from access,
i.e., that the records reflect a national security interest subject to
classification under Executive order, or that access would disclose to
the subject the identity of a confidential source of information in the
record (judgments contemplated by subsections (k)(1), (2) and (5) of
the Act). ODNI does not seek to deny record subjects the basic right to
challenge access determinations.
However, EPIC's position that ODNI should afford redress for all
amendment denials demands the impractical result of requiring the
agency to permit ``correction'' of records to which it properly has
denied the subject access based on expert judgments regarding national
security or witness/source identification. This practice would afford
individuals ``back-door'' access to records via amendment challenges.
Accordingly, ODNI will narrowly construe the proposed exemption from
redress to apply only to denials to amend exempt records (i.e., records
that are classified, or determined to be not disclosable under other
provisions of subsection (k)).
4. ODNI does not use these systems of records for decision-making
about record subjects.
EPIC articulates a concern that subjects' inability to access and
amend exempt records undermines the fundamental principle (under
subsection (e)(5) of the Privacy Act) that records used in making
agency determinations about record subjects must be sufficiently
accurate, relevant, timely and complete to ensure fairness to the
individual.
ODNI does not in fact propose to exempt its fourteen new SORNs from
the (e)(5) requirement. Indeed, subsection (k) of the Privacy Act does
not permit exemption from subsection (e)(5).\3\ Additionally, records
maintained in these systems are not used in personalized agency
determinations of the kind for which access and amendment rights are
intended to ensure data accuracy and relevance. With the possible
exception of the Civil Liberties and Privacy Office Complaint Records,
the Equal Employment Opportunity and Diversity Office Records and the
Office of General Counsel records, the recently published notices
reflect agency internal administrative functions, but not activities
``affecting the rights, benefits, entitlements or opportunities
(including employment) of the individual).'' \4\ By and large, the
systems at issue permit the agency to track communications and external
relations using the record subjects' name as an easy ``handle.'' They
are record-keeping files, not decision-making files. Where claims are
involved (civil liberties/privacy, disability accommodations, or
actions against the agency), it is the record subject who determines
what facts to report in the first instance, obviating his/her need for
a check on accuracy. Nonetheless, the claimant/litigant would receive
all official administrative or court filings, and obtain access to
other non-exempt records in the pertinent system.
---------------------------------------------------------------------------
\3\ Subsection (k) states that the head of any agency may
promulgate rules to exempt any system of records with the agency
from subsection (c)(3). (d). (e)(1), (e)(4)(G)(H), and (I) and (f)
of that section.
\4\ Office of Management and Budget, Privacy Act Implementation,
Guidelines and Responsibilities, Standards of Accuracy, Subsection
(e)(5), 40 FR 28948, 28964 (July 9, 1975).
---------------------------------------------------------------------------
5. ``Necessary and relevant'' is a fluid standard, properly subject
to exemption.
The provision from which ODNI does seek exemption is (e)(1):
``Maintain [in agency] records only such information about an
individual as is relevant and necessary to accomplish a purpose of the
agency required to be accomplished by statute or by executive order of
the President.'' The purposes which these systems serve are authorized
by the National Security Act of 1947 as amended by the Intelligence
Reform and Terrorism Prevention Act of 2004, and generally reflect
routine agency functions. Because of the transactional nature of most
of these systems, relevance is a function of happenstance, i.e.,
whatever communication is received or transmitted, and can not be
determined once and for all time. The information collected will not
likely be the same for every individual who is the subject of a record
in the system. With respect to claims requiring investigation (e.g.,
Civil Liberties/Privacy complaints) relevance often can not be
determined until all materials have been collected and analyzed.
Moreover, because these systems of records generally are house-keeping-
type files, and not likely to be disclosed outside the agency or serve
for decision-making purposes, the importance of ``relevance'' as a data
quality criterion is diminished.
6. Exemptions do not curtail subjects' access to complaint status
or disposition.
EPIC is especially troubled by ODNI's proposal to exempt the Civil
Liberties and Privacy Office Complaint Records (alleging violations of
civil liberties or privacy arising from an ODNI or IC program or
activity), and argues that:
[A]n individual who submitted a complaint would not be able to
view any records pertaining to his complaint, such as records of
review, investigation, or acknowledgement or disposition of
allegations received. A complainant would be left without any means
to inquire about the status of his complaint or to help facilitate
the resolution of his complaint.
EPIC posits that, by virtue merely of their being maintained in the
exempt system, all records would be shielded from the subject's access,
including the agency's acknowledgment of receipt of the complaint and
any disposition of the complaint. However, complainants routinely
receive acknowledgement of receipt of their complaints, a copy of which
is maintained as part of the complainants' official records in the
noticed Privacy Act system of records. Similarly, complainants receive
notice of resolution or disposition of their cases, with as much
specificity as is feasible under the circumstances. The Civil Liberties
and Privacy Office articulates in writing why the allegation is, or is
not, sustained by the facts as presented by the complainant and as
investigated by the agency, and what the ODNI's follow-on action may be
(for example, remedying a flaw or gap in agency process that the
complaint has brought to light). The written disposition is also
maintained as part of the official record in the noticed Privacy Act
system of records. ODNI would provide access to these acknowledgement
and disposition records at the complainant's request. The complainant
would obtain access to other portions of the complaint file as well, to
the extent they do not implicate national security interests, and do
not reveal the identity of individuals providing statements or
information to the investigation pursuant to assurances of
confidentiality.
ODNI believes that current policies address EPIC's concern that
``the complainant is left without any means to inquire about the status
of his complaint.'' Complainants may at any time amend their
statements, provide additional facts or seek explanation about the
operative law, regulation or policy allegedly violated. Indeed, the
exemption framework does not preclude a complainant from inquiring
about, or learning of, the status of his complaint. Nor does it
preclude the ODNI from seeking additional input from claimants.
[[Page 57166]]
Final Rule: Implementation of Exemption Rule and Systems Notices
After consideration of the public comments, the ODNI has determined
to issue the proposed exemption rule in final form and to implement the
fourteen new systems of records without change. The exemptions proposed
for the fourteen noticed systems of records are necessary and
appropriate to protect intelligence equities undergirding ODNI's
mission and functions and narrowly applied, they do so consistent with
privacy principles. By restrictively construing the exemptions to apply
only to records that satisfy thresholds articulated in subsection (k),
ODNI achieves the goal of balancing intelligence-related equities with
fair information principles and values.
Regulatory Flexibility Act
This rule affects only the manner in which ODNI collects and
maintains information about individuals. ODNI certifies that this
rulemaking does not impact small entities and that analysis under the
Regulatory flexibility Act, 5 U.S.C. 601-612, is not required.
Small Entity Inquiries
The Small Business Regulatory enforcement Fairness Act (SBREFA) of
1996 requires the ODNI to comply with small entity requests for
information and advice about compliance with statutes and regulations
within the ODNI jurisdiction. Any small entity that has a question
regarding this document may address it to the information contact
listed above. Further information regarding SBREFA is available on the
Small Business Administration's web page at https://www.sba.gov/advo/laws/law-lib.html.
Paperwork Reduction Act
The Paperwork Reduction Act of 1995 944 U.S.C. 3507(d)) requires
that the ODNI consider the impact of paperwork and other burdens
imposed on the public associated with the collection of information.
There are no information collection requirements associated with this
rule and therefore no analysis of burden is required.
Executive Order 12866, Regulatory Planning and Review
This rule is not a ``significant regulatory action,'' within the
meaning of Executive Order 12866. This rule will not adversely affect
the economy or a sector of the economy in a material way; will not
create inconsistency with or interfere with other agency action; will
not materially alter the budgetary impact of entitlements, grants, fees
or loans or the right and obligations of recipients thereof; or raise
legal or policy issues arising out of legal mandates, the President's
priorities or the principles set forth in the Executive Order.
Accordingly, further regulatory evaluation is not required.
Unfunded Mandates
Title II of the Unfunded Mandates Reform Act of 1995 (UMRA), Public
Law 104-4, 109 Stat. 48 (Mar. 22, 1995), requires Federal agencies to
assess the effects of certain regulatory actions on State, local and
tribal governments, and the private sector. This rule imposes no
Federal mandate on any State, local or tribal government or on the
private sector. Accordingly, no UMRA analysis of economic and
regulatory alternatives is required.
Executive Order 13132, Federalism
Executive Order 13132 requires agencies to examine the implications
for the distribution of power and responsibilities among the various
levels of government resulting from their rules. ODNI concludes that
this rule does not affect the rights, roles and responsibilities of the
States, involves no preemption of State law and does not limit state
policymaking discretion. This rule has no federalism implications as
defined by the Executive Order.
Environmental Impact
This rulemaking will not have a significant effect on the human
environment under the provisions of the National Environmental Policy
Act of 1969 (NEPA), 42 U.S.C. 4321-4347.
Energy Impact
This rulemaking is not a major regulatory action under the
provisions of the Energy Policy and Conservation Act (EPCA), Public Law
94-163) as amended, 42 U.S.C. 6362.
List of Subjects in 32 CFR Part 1701
Records and Privacy Act.
0
For the reasons set forth above, ODNI amends 32 CFR part 1701 as
follows:
PART 1701--ADMINISTRATION OF RECORDS UNDER THE PRIVACY ACT OF 1974
0
1. The authority citation for part 1701 continues to read as follows:
Authority: 50 U.S.C. 401-442; 5 U.S.C. 552a.
Subpart B--[AMENDED]
0
2. Add Sec. 1701.24 to subpart B to read as follows:
Sec. 1701.24 Exemption of Office of the Director of National
Intelligence (ODNI) systems of records.
(a) The ODNI exempts the following systems of records from the
requirements of subsections (c)(3); (d)(1),(2),(3) and (4); (e)(1);
(e)(4)(G),(H),(I); and (f) of the Privacy Act to the extent that
information in the system is subject to exemption pursuant subsections
(k)(1), (k)(2) or (k)(5) of the Act as noted in the individual systems
notices:
(1) Manuscript, Presentation and Resume Review Records (ODNI-01).
(2) Executive Secretary Action Management System Records (ODNI-02).
(3) Public Affairs Office Records (ODNI-03).
(4) Office of Legislative Affairs Records (ODNI-04).
(5) ODNI Guest Speaker Records (ODNI-05).
(6) Office of General Counsel Records (ODNI-06).
(7) Analytic Resources Catalog (ODNI-07).
(8) Intelligence Community Customer Registry (ODNI-09).
(9) EEO and Diversity Office Records (ODNI-10).
(10) Office of Protocol Records (ODNI-11).
(11) IC Security Clearance and Access Approval Repository (ODNI-
12).
(12) Security Clearance Reform Research Records (ODNI-13).
(13) Civil Liberties and Privacy Office Complaint Records (ODNI-
14).
(14) National Intelligence Council Records (ODNI-15).
(b) Exemption of records in theses systems from any or all of the
enumerated requirements may be necessary for the following reasons:
(1) From subsection (c)(3) (accounting of disclosures) because an
accounting of disclosures from records concerning the record subject
would specifically reveal an intelligence or investigative interest on
the part of the ODNI or recipient agency and could result in release of
properly classified national security or foreign policy information.
(2) From subsections (d)(1), (2), (3) and (4) (record subject's
right to access and amend records) because affording access and
amendment rights could alert the record subject to the investigative
interest of intelligence or law enforcement agencies or compromise
sensitive information classified in the interest of national security.
In the absence of a national security basis for exemption, records in
this system may be exempted from access and amendment to the extent
necessary to honor promises of
[[Page 57167]]
confidentiality to persons providing information concerning a candidate
for position. Inability to maintain such confidentiality would restrict
the free flow of information vital to a determination of a candidate's
qualifications and suitability.
(3) From subsection (e)(1) (maintain only relevant and necessary
records) because it is not always possible to establish relevance and
necessity before all information is considered and evaluated in
relation to an intelligence concern. In the absence of a national
security basis for exemption under subsection (k)(1), records in this
system may be exempted from the relevance requirement pursuant to
subsection (k)(5) because it is not possible to determine in advance
what exact information may assist in determining the qualifications and
suitability of a candidate for position. Seemingly irrelevant details,
when combined with other data, can provide a useful composite for
determining whether a candidate should be appointed.
(4) From subsections (e)(4)(G) and (H) (publication of procedures
for notifying subjects of the existence of records about them and how
they may access records and contest contents) because the system is
exempted from subsection (d) provisions regarding access and amendment,
and from the subsection (f) requirement to promulgate agency rules.
Nevertheless, the ODNI has published notice concerning notification,
access, and contest procedures because it may in certain circumstances
determine it appropriate to provide subjects access to all or a portion
of the records about them in a system of records.
(5) From subsection (e)(4)(I) (identifying sources of records in
the system of records) because identifying sources could result in
disclosure of properly classified national defense or foreign policy
information, intelligence sources and methods, and investigatory
techniques and procedures. Notwithstanding its proposed exemption from
this requirement, ODNI identifies record sources in broad categories
sufficient to provide general notice of the origins of the information
it maintains in its systems of records.
(6) From subsection (f) (agency rules for notifying subjects to the
existence of records about them, for accessing and amending records,
and for assessing fees) because the system is exempt from subsection
(d) provisions regarding access and amendment of records by record
subjects. Nevertheless, the ODNI has published agency rules concerning
notification of a subject in response to his request if any system of
records named by the subject contains a record pertaining to him and
procedures by which the subject may access or amend the records.
Notwithstanding exemption, the ODNI may determine it appropriate to
satisfy a record subject's access request.
Dated: September 10, 2010.
John F. Kimmons,
Lieutenant General, USA, Director of the Intelligence Staff.
[FR Doc. 2010-23320 Filed 9-17-10; 8:45 am]
BILLING CODE P
