Defense Contract Audit Agency (DCAA) Privacy Act Program, 7114-7117 [2014-01882]
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contributions + $5,000 investment income ¥
($72,000 in benefit payments + $7,000 in
administrative expenses)).
(c) The applicable account limit under
section 512(a)(3)(E)(i) (that is, the account
limit under section 419A(c), excluding the
reserve for post retirement medical benefits)
is the IBU claims reserve ($7,200).
(d) The total amount of assets of the VEBA
as of the close of the year ($21,000) exceeds
the applicable account limit ($7,200) by
$13,800.
(e) The unrelated business taxable income
is $5,000 (that is, the lesser of investment
income ($5,000) and the excess of the amount
of assets of the VEBA as of the close of the
taxable year over the applicable account limit
($13,800)).
Example 4 (a) The facts are the same as in
Example 3 except that the 2012 year-end
balance was $15,000.
(b) The total amount of assets in the VEBA
at the end of 2013 is $11,000 (that is, $15,000
beginning of year balance + $70,000
contributions + $5,000 investment income ¥
($72,000 in benefit payments + $7,000 in
administrative expenses)).
(c) The applicable account limit under
section 512(a)(3)(E)(i) remains $7,200.
(d) The total amount of assets of the VEBA
as of the close of the year ($11,000) exceeds
the applicable account limit ($7,200) by
$3,800.
(e) The unrelated business taxable income
is $3,800 (that is, the lesser of investment
income ($5,000) and the excess of the total
amount of assets of the VEBA at the close of
the taxable year over the applicable account
limit ($3,800)).
Q–4. What is the effective date of the
amendments to section 512(a)(3) and
what transition rules apply to ‘‘existing
reserves for post-retirement medical or
life insurance benefits’’?
A–4. (a) The amendments to section
512(a)(3), made by the Tax Reform Act
of 1984, apply to income earned by a
Covered Entity after December 31, 1985,
in the taxable years of such an
organization ending after such date.
(b) Section 512(a)(3)(E)(ii)(I) provides
that income that is attributable to
‘‘existing reserves for post-retirement
medical or life insurance benefits’’ will
not be treated as unrelated business
taxable income. This includes income
that is either directly or indirectly
attributable to existing reserves. An
‘‘existing reserve for post-retirement
medical or life insurance benefits’’ (as
defined in section 512(a)(3)(E)(ii)(II)) is
the total amount of assets actually set
aside by a Covered Entity on July 18,
1984 (calculated in the manner set forth
in Q&A–3 of this section, and adjusted
under paragraph (c) of Q&A–11 of
§ 1.419–1T), reduced by employer
contributions to the fund on or before
such date to the extent such
contributions are not deductible for the
taxable year of the employer containing
July 18, 1984, and for any prior taxable
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year of the employer, for purposes of
providing such post-retirement benefits.
For purposes of the preceding sentence
only, an amount that was not actually
set aside on July 18, 1984, will be
treated as having been actually set aside
on such date if—
(1) such amount was incurred by the
employer (without regard to section
461(h)) as of the close of the last taxable
year of the Covered Entity ending before
July 18, 1984, and
(2) such amount was actually
contributed to the Covered Entity within
81⁄2 months following the close of such
taxable year.
(c) In addition, section
512(a)(3)(E)(ii)(I) applies to existing
reserves for such post-retirement
benefits only to the extent that such
‘‘existing reserves’’ do not exceed the
amount that could be accumulated
under the principles set forth in
Revenue Rulings 69–382, 1969–2 CB 28;
69–478, 1969–2 CB 29; and 73–599,
1973–2 CB 40. Thus, amounts
attributable to any such excess ‘‘existing
reserves’’ are not within this transition
rule even though they were actually set
aside on July 18, 1984. See
§ 601.601(d)(2)(ii)(b).
(d) All post-retirement medical or life
insurance benefits (or other benefits to
the extent paid with amounts set aside
to provide post-retirement medical or
life insurance benefits) provided after
July 18, 1984 (whether or not the
employer has maintained a reserve or
fund for such benefits) are to be
charged, first, against the ‘‘existing
reserves’’ within this transition rule
(including amounts attributable to
‘‘existing reserves’’ within this
transition rule) for post-retirement
medical benefits or for post-retirement
life insurance benefits (as the case may
be) and, second, against all other
amounts. For this purpose, the qualified
direct cost of an asset with a useful life
extending substantially beyond the end
of the taxable year (as determined under
Q&A–6 of § 1.419–1T) will be treated as
a benefit provided and thus charged
against the ‘‘existing reserve’’ based on
the extent to which such asset is used
in the provision of post-retirement
medical benefits or post-retirement life
insurance benefits (as the case may be).
All plans of an employer providing
post-retirement medical benefits are to
be treated as one plan for purposes of
section 512(a)(3)(E)(ii)(III), and all plans
of an employer providing postretirement life insurance benefits are to
be treated as one plan for purposes of
section 512(a)(3)(E)(ii)(III).
(e) In calculating the unrelated
business taxable income of a Covered
Entity for a taxable year of such
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organization, the total income of the
Covered Entity for the taxable year is
reduced by the income attributable to
‘‘existing reserves’’ within the transition
rule before such income is compared to
the excess of the total amount of the
assets of the Covered Entity as of the
close of the taxable year over the
applicable account limit for the taxable
year.
(f) The following example illustrates
the calculation of a VEBA’s UBTI:
Example. Assume that the total income of
a VEBA for a taxable year is $1,000, and that
the excess of the total amount of the assets
of the VEBA as of the close of the taxable
year over the applicable account limit is
$600. Assume also that of the $1,000 of total
income, $540 is attributable to ‘‘existing
reserves’’ within the transition rule of section
512(a)(3)(E)(ii)(I). The unrelated business
taxable income of this VEBA for the taxable
year is equal to the lesser of the following
two amounts: (1) The total income of the
VEBA for the taxable year, reduced by the
extent to which such income is attributable
to ‘‘existing reserves’’ within the meaning of
the transition rule ($1,000 ¥ $540 = $460);
or (2) the excess of the total amount of the
assets of the VEBA as of the close of the
taxable year over the applicable account limit
($600). Thus, the unrelated business income
of this VEBA for the taxable year is $460.
Q–5. What is the effective/
applicability date of this section?
A–5. Except as otherwise provided in
this paragraph, this section is applicable
to taxable years ending on or after the
date of publication of the final
regulation. For rules that apply to earlier
periods, see 26 CFR 1.512(a)–5T
(revised as of April 1, 2013).
John M. Dalrymple,
Deputy Commissioner for Services and
Enforcement.
[FR Doc. 2014–01625 Filed 2–5–14; 8:45 am]
BILLING CODE 4830–01–P
DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 317
[DOD–2008–OS–0068]
RIN 0790–AI31
Defense Contract Audit Agency
(DCAA) Privacy Act Program
Department of Defense.
Proposed rule.
AGENCY:
ACTION:
The Department of Defense
(DoD) is proposing to amend the
Defense Contract Audit Agency (DCAA)
Privacy Act Program Regulation.
Specifically, an exemption section is
being added to include an exemption for
SUMMARY:
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Federal Register / Vol. 79, No. 25 / Thursday, February 6, 2014 / Proposed Rules
RDCAA 900.1, DCAA Internal Review
Case Files. This rulemaking provides
policies and procedures for the DCAA’s
implementation of the Privacy Act of
1974, as amended.
DATES: Comments must be received by
April 7, 2014.
ADDRESSES: You may submit comments,
identified by docket number and/or RIN
number and title, by any of the
following methods:
• Federal Rulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Mail: Federal Docket Management
System Office, 4800 Mark Center Drive,
East Tower, Suite 02G09, Alexandria,
VA 22350–3100.
Instructions: All submissions received
must include the agency name and
docket number or Regulatory
Information Number (RIN) for this
Federal Register document. The general
policy for comments and other
submissions from members of the public
is to make these submissions available
for public viewing on the Internet at
https://www.regulations.gov as they are
received without change, including any
personal identifiers or contact
information.
Mr.
Keith Mastromichalis, FOIA/PA
Management Analyst, DCAA HQ, 703–
767–1022.
SUPPLEMENTARY INFORMATION:
The revisions to this rule are part of
DoD’s retrospective plan under EO
13563 completed in August 2011. DoD’s
full plan can be accessed at https://
exchange.regulations.gov/exchange/
sites/default/files/doc_files/
Department%20of%20Defense%20
Final%20Plan.pdf.
FOR FURTHER INFORMATION CONTACT:
Executive Summary
I. Purpose of This Regulatory Action
a. This rule provides policies and
procedures for DCAA’s implementation
of the Privacy Act of 1974, as amended.
b. Authority: Privacy Act of 1974,
Public Law 93–579, Stat. 1896 (5 U.S.C.
552a).
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II. Summary of the Major Provisions of
This Regulatory Action
DCAA is adding an exemption section
to include an exemption for RDCAA
900.1, DCAA Internal Review Case
Files.
III. Costs and Benefits of This
Regulatory Action
This regulatory action imposes no
monetary costs to the Agency or public.
The benefit to the public is the accurate
reflection of the Agency’s Privacy
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Program to ensure that policies and
procedures are known to the public.
Regulatory Procedures
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 within the Department of
Defense.
Public Law 95–511, ‘‘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
collection requirements on the public
under the Paperwork Reduction Act of
1995.
Section 202, Public Law 104–4,
‘‘Unfunded Mandates Reform Act’’
It has been determined that this
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
and that such rulemaking will not
significantly or uniquely affect small
governments.
Executive Order 13132, ‘‘Federalism’’
It has been determined that the
Privacy Act rule for the Department of
Defense does not have federalism
implications. The rule does not have
substantial direct effects on the States,
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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 317
Privacy.
Accordingly the Department proposes
to revise 32 CFR Part 317 to read as
follows:
PART 317—DCAA PRIVACY ACT
PROGRAM
Sec.
317.1
317.2
317.3
317.4
317.5
317.6
Purpose
Applicability and scope.
Policy.
Responsibilities.
Procedures.
Procedures for exemptions
Authority: Pub. L. 93–579, 88 Stat. 1896 (5
U.S.C. 552a).
§ 317.1
Purpose.
This part provides policies and
procedures for the Defense Contract
Audit Agency’s (DCAA) implementation
of the Privacy Act of 1974 (5 U.S.C.
552a) and 32 CFR part 310, and is
intended to promote uniformity within
DCAA.
§ 317.2
Applicability and scope.
(a) This part applies to all DCAA
organizational elements and takes
precedence over all regional regulatory
issuances that supplement the DCAA
Privacy Program.
(b) This part shall be made applicable
by contract or other legally binding
action to contractors whenever a DCAA
contract provides for the operation of a
system of records or portion of a system
of records to accomplish an Agency
function.
§ 317.3
Policy.
(a) It is DCAA policy that personnel
will comply with the DCAA Privacy
Program; the Privacy Act of 1974; and
the DoD Privacy Program (32 CFR part
310). Strict adherence is necessary to
ensure uniformity in the
implementation of the DCAA Privacy
Program and create conditions that will
foster public trust. It is also Agency
policy to safeguard personal information
contained in any system of records
maintained by DCAA organizational
elements and to make that information
available to the individual to whom it
pertains to the maximum extent
practicable.
(b) DCAA policy specifically requires
that DCAA organizational elements:
(1) Collect, maintain, use, and
disseminate personal information only
when it is relevant and necessary to
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achieve a purpose required by statute or
Executive Order.
(2) Collect personal information
directly from the individuals to whom
it pertains to the greatest extent
practical.
(3) Inform individuals who are asked
to supply personal information for
inclusion in any system of records:
(i) The authority for the solicitation.
(ii) Whether furnishing the
information is mandatory or voluntary.
(iii) The intended uses of the
information.
(iv) The routine disclosures of the
information that may be made outside of
DoD.
(v) The effect on the individual of not
providing all or any part of the
requested information.
(4) Ensure that records used in
making determinations about
individuals and those containing
personal information are accurate,
relevant, timely, and complete for the
purposes for which they are being
maintained before making them
available to any recipients outside of
DoD, other than a Federal agency,
unless the disclosure is made under
DCAA Regulation 5410.8, DCAA
Freedom of Information Act Program.
(5) Keep no record that describes how
individuals exercise their rights
guaranteed by the First Amendment to
the U.S. Constitution, unless expressly
authorized by statute or by the
individual to whom the records pertain
or is pertinent to and within the scope
of an authorized law enforcement
activity.
(6) Notify individuals whenever
records pertaining to them are made
available under compulsory legal
processes, if such process is a matter of
public record.
(7) Establish safeguards to ensure the
security of personal information and to
protect this information from threats or
hazards that might result in substantial
harm, embarrassment, inconvenience, or
unfairness to the individual.
(8) Establish rules of conduct for
DCAA personnel involved in the design,
development, operation, or maintenance
of any system of records and train them
in these rules of conduct.
(9) Assist individuals in determining
what records pertaining to them are
being collected, maintained, used, or
disseminated.
(10) Permit individual access to the
information pertaining to them
maintained in any system of records,
and to correct or amend that
information, unless an exemption for
the system has been properly
established for an important public
purpose.
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(11) Provide, on request, an
accounting of all disclosures of the
information pertaining to them except
when disclosures are made:
(i) To DoD personnel in the course of
their official duties.
(ii) Under DCAA Regulation 5410.8,
DCAA Freedom of Information Act
Program.
(iii) To another agency or to an
instrumentality of any governmental
jurisdiction within or under control of
the United States conducting law
enforcement activities authorized by
law.
(12) Advise individuals on their rights
to appeal any refusal to grant access to
or amend any record pertaining to them,
and file a statement of disagreement
with the record in the event amendment
is refused.
§ 317.4
Responsibilities.
(a) The Assistant Director, Resources
has overall responsibility for the DCAA
Privacy Act Program and will serve as
the sole appellate authority for appeals
to decisions of respective initial denial
authorities.
(b) The Chief, Administrative
Management Division under the
direction of the Assistant Director,
Resources, shall:
(1) Establish, issue, and update
policies for the DCAA Privacy Act
Program; monitor compliance with this
part; and provide policy guidance for
the DCAA Privacy Act Program.
(2) Resolve conflicts that may arise
regarding implementation of DCAA
Privacy Act policy.
(3) Designate an Agency Privacy Act
Advisor, as a single point of contact, to
coordinate on matters concerning
Privacy Act policy.
(4) Make the initial determination to
deny an individual’s written Privacy
Act request for access to or amendment
of documents filed in Privacy Act
systems of records. This authority
cannot be delegated.
(c) The DCAA Privacy Act Advisor
under the supervision of the Chief,
Administrative Management Division
shall:
(1) Manage the DCAA Privacy Act
Program in accordance with this part
and applicable DCAA policies, as well
as DoD and Federal regulations.
(2) Provide guidelines for managing,
administering, and implementing the
DCAA Privacy Act Program.
(3) Implement and administer the
Privacy Act program at the
Headquarters.
(4) Ensure that the collection,
maintenance, use, or dissemination of
records of identifiable personal
information is in a manner that assures
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that such action is for a necessary and
lawful purpose; that the information is
timely and accurate for its intended use;
and that adequate safeguards are
provided to prevent misuse of such
information.
(5) Prepare promptly any required
new, amended, or altered system notices
for systems of records subject to the
Privacy Act and submit them to the
Defense Privacy Office for subsequent
publication in the Federal Register.
(6) Conduct training on the Privacy
Act program for Agency personnel.
(d) Heads of Principal Staff Elements
are responsible for:
(1) Reviewing all regulations or other
policy and guidance issuances for
which they are the proponent to ensure
consistency with the provisions of this
part.
(2) Ensuring that the provisions of this
part are followed in processing requests
for records.
(3) Forwarding to the DCAA Privacy
Act Advisor, any Privacy Act requests
received directly from a member of the
public, so that the request may be
administratively controlled and
processed.
(4) Ensuring the prompt review of all
Privacy Act requests, and when
required, coordinating those requests
with other organizational elements.
(5) Providing recommendations to the
DCAA Privacy Act Advisor regarding
the releasability of DCAA records to
members of the public, along with the
responsive documents.
(6) Providing the appropriate
documents, along with a written
justification for any denial, in whole or
in part, of a request for records to the
DCAA Privacy Act Advisor. Those
portions to be excised should be
bracketed in red pencil, and the specific
exemption or exemptions cites which
provide the basis for denying the
requested records.
(e) The General Counsel is responsible
for:
(1) Ensuring uniformity is maintained
in the legal position, and the
interpretation of the Privacy Act; 32
CFR part 310; and this part.
(2) Consulting with DoD General
Counsel on final denials that are
inconsistent with decisions of other
DoD components, involve issues not
previously resolved, or raise new or
significant legal issues of potential
significance to other Government
agencies.
(3) Providing advice and assistance to
the Assistant Director, Resources;
Regional Directors; and the Regional
Privacy Act Officer, through the DCAA
Privacy Act Advisor, as required, in the
discharge of their responsibilities.
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(4) Coordinating Privacy Act litigation
with the Department of Justice.
(5) Coordinating on Headquarters
denials of initial requests.
(f) Each Regional Director is
responsible for the overall management
of the Privacy Act program within their
respective regions. Under his/her
direction, the Regional Resources
Manager is responsible for the
management and staff supervision of the
program and for designating a Regional
Privacy Act Officer. Regional Directors
will, as designee of the Director, make
the initial determination to deny an
individual’s written Privacy Act request
for access to or amendment of
documents filed in Privacy Act systems
of records. This authority cannot be
delegated.
(g) Regional Privacy Act Officers will:
(1) Implement and administer the
Privacy Act program throughout the
region.
(2) Ensure that the collection,
maintenance, use, or dissemination of
records of identifiable personal
information is in compliance with this
part to assure that such action is for a
necessary and lawful purpose; that the
information is timely and accurate for
its intended use; and that adequate
safeguards are provided to prevent
misuse of such information.
(3) Prepare input for the annual
Privacy Act Report when requested by
the DCAA Information and Privacy
Advisor.
(4) Conduct training on the Privacy
Act program for regional and FAO
personnel.
(5) Provide recommendations to the
Regional Director through the Regional
Resources Manager regarding the
releasability of DCAA records to
members of the public.
(h) Managers, Field Audit Offices
(FAOs) will:
(1) Ensure that the provisions of this
part are followed in processing requests
for records.
(2) Forward to the Regional Privacy
Act Officer, any Privacy Act requests
received directly from a member of the
public, so that the request may be
administratively controlled and
processed.
(3) Ensure the prompt review of all
Privacy Act requests, and when
required, coordinating those requests
with other organizational elements.
(4) Provide recommendation to the
Regional Privacy Act Officer regarding
the releasability of DCAA records to
members of the public, along with the
responsive documents.
(5) Provide the appropriate
documents, along with a written
justification for any denial, in whole or
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in part, of a request for records to the
Regional Privacy Act Officer. Those
portions to be excised should be
bracketed in red pencil, and the specific
exemption or exemptions cited which
provide the basis for denying the
requested records.
(i) DCAA Employees will:
(1) Not disclose any personal
information contained in any system of
records, except as authorized by this
part.
(2) Not maintain any official files
which are retrieved by name or other
personal identifier without first
ensuring that a notice for the system has
been published in the Federal Register.
(3) Report any disclosures of personal
information from a system of records or
the maintenance of any system of
records that are not authorized by this
part to the appropriate Privacy Act
officials for their action.
§ 317.5
Procedures.
Procedures for processing material in
accordance with the Privacy Act of 1974
are outlined in DoD 5400.11–R, DoD
Privacy Program (32 CFR part 310).
§ 317.6
Procedures for exemptions.
(a) General information. There are two
types of exemptions, general and
specific. The general exemption
authorizes the exemption of a system of
records from all but a few requirements
of the Privacy Act. The specific
exemption authorizes exemption of a
system of records or portion thereof,
from only a few specific requirements.
If a new system of records originates for
which an exemption is proposed, or an
additional or new exemption for an
existing system of records is proposed,
the exemption shall be submitted with
the system of records notice. No
exemption of a system of records shall
be considered automatic for all records
in the system. The systems manager
shall review each requested record and
apply the exemptions only when this
will serve significant and legitimate
Government purposes.
(b) Specific Exemptions. (1) System
identifier and name: RDCAA 900.1,
DCAA Internal Review Case Files
(i) Exemption: Any portions of this
system of records which fall under the
provisions of 5 U.S.C. 552a(k)(2) and
(k)(5) may be exempt from the following
subsections of 5 U.S.C. 552a: (c)(3), (d),
(e)(1), (e)(4)(G), (H), and (f).
(ii) Authority: 5 U.S.C. 552a(k)(2) and
(k)(5).
(iii) Reason: (A) From subsection
(c)(3) because disclosures from this
system could interfere with the just,
thorough and timely resolution of the
complaint or inquiry, and possibly
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enable individuals to conceal their
wrongdoing or mislead the course of the
investigation by concealing, destroying
or fabricating evidence or documents.
(B) From subsection (d) because
disclosures from this system could
interfere with the just, thorough and
timely resolution of the complaint or
inquiry, and possibly enable individuals
to conceal their wrongdoing or mislead
the course of the investigation by
concealing, destroying or fabricating
evidence or documents. Disclosures
could also subject sources and witnesses
to harassment or intimidation which
jeopardize the safety and well-being of
themselves and their families.
(C) From subsection (e)(1) because the
nature of the investigation functions
creates unique problems in prescribing
specific parameters in a particular case
as to what information is relevant or
necessary. Due to close liaison and
working relationships with other
Federal, state, local, foreign country law
enforcement agencies, and other
governmental agencies, information may
be received which may relate to a case
under the investigative jurisdiction of
another government agency. It is
necessary to maintain this information
in order to provide leads for appropriate
law enforcement purposes and to
establish patterns of activity which may
relate to the jurisdiction of other
cooperating agencies.
(D) From subsection (e)(4)(G) through
(H) because this system of records is
exempt from the access provisions of
subsection (d).
(E) From subsection (f) because the
agency’s rules are inapplicable to those
portions of the system that are exempt
and would place the burden on the
agency of either confirming or denying
the existence of a record pertaining to a
requesting individual might in itself
provide an answer to that individual
relating to an on-going investigation.
The conduct of a successful
investigation leading to the indictment
of a criminal offender precludes the
applicability of established agency rules
relating to verification of record,
disclosure of the record to that
individual, and record amendment
procedures for this record system.
Dated: January 21, 2014.
Patricia L. Toppings,
OSD Federal Register Liaison Officer,
Department of Defense.
[FR Doc. 2014–01882 Filed 2–5–14; 8:45 am]
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[Federal Register Volume 79, Number 25 (Thursday, February 6, 2014)]
[Proposed Rules]
[Pages 7114-7117]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-01882]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 317
[DOD-2008-OS-0068]
RIN 0790-AI31
Defense Contract Audit Agency (DCAA) Privacy Act Program
AGENCY: Department of Defense.
ACTION: Proposed rule.
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SUMMARY: The Department of Defense (DoD) is proposing to amend the
Defense Contract Audit Agency (DCAA) Privacy Act Program Regulation.
Specifically, an exemption section is being added to include an
exemption for
[[Page 7115]]
RDCAA 900.1, DCAA Internal Review Case Files. This rulemaking provides
policies and procedures for the DCAA's implementation of the Privacy
Act of 1974, as amended.
DATES: Comments must be received by April 7, 2014.
ADDRESSES: You may submit comments, identified by docket number and/or
RIN number and title, by any of the following methods:
Federal Rulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Mail: Federal Docket Management System Office, 4800 Mark
Center Drive, East Tower, Suite 02G09, Alexandria, VA 22350-3100.
Instructions: All submissions received must include the agency name
and docket number or Regulatory Information Number (RIN) for this
Federal Register document. The general policy for comments and other
submissions from members of the public is to make these submissions
available for public viewing on the Internet at https://www.regulations.gov as they are received without change, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Mr. Keith Mastromichalis, FOIA/PA
Management Analyst, DCAA HQ, 703-767-1022.
SUPPLEMENTARY INFORMATION:
The revisions to this rule are part of DoD's retrospective plan
under EO 13563 completed in August 2011. DoD's full plan can be
accessed at https://exchange.regulations.gov/exchange/sites/default/files/doc_files/Department%20of%20Defense%20Final%20Plan.pdf.
Executive Summary
I. Purpose of This Regulatory Action
a. This rule provides policies and procedures for DCAA's
implementation of the Privacy Act of 1974, as amended.
b. Authority: Privacy Act of 1974, Public Law 93-579, Stat. 1896 (5
U.S.C. 552a).
II. Summary of the Major Provisions of This Regulatory Action
DCAA is adding an exemption section to include an exemption for
RDCAA 900.1, DCAA Internal Review Case Files.
III. Costs and Benefits of This Regulatory Action
This regulatory action imposes no monetary costs to the Agency or
public. The benefit to the public is the accurate reflection of the
Agency's Privacy Program to ensure that policies and procedures are
known to the public.
Regulatory Procedures
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 within the Department of Defense.
Public Law 95-511, ``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 collection requirements on
the public under the Paperwork Reduction Act of 1995.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been determined that this 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 and
that such rulemaking will not significantly or uniquely affect small
governments.
Executive Order 13132, ``Federalism''
It has been determined that the Privacy Act rule for the Department
of Defense does not have federalism implications. The 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.
List of Subjects in 32 CFR Part 317
Privacy.
Accordingly the Department proposes to revise 32 CFR Part 317 to
read as follows:
PART 317--DCAA PRIVACY ACT PROGRAM
Sec.
317.1 Purpose
317.2 Applicability and scope.
317.3 Policy.
317.4 Responsibilities.
317.5 Procedures.
317.6 Procedures for exemptions
Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).
Sec. 317.1 Purpose.
This part provides policies and procedures for the Defense Contract
Audit Agency's (DCAA) implementation of the Privacy Act of 1974 (5
U.S.C. 552a) and 32 CFR part 310, and is intended to promote uniformity
within DCAA.
Sec. 317.2 Applicability and scope.
(a) This part applies to all DCAA organizational elements and takes
precedence over all regional regulatory issuances that supplement the
DCAA Privacy Program.
(b) This part shall be made applicable by contract or other legally
binding action to contractors whenever a DCAA contract provides for the
operation of a system of records or portion of a system of records to
accomplish an Agency function.
Sec. 317.3 Policy.
(a) It is DCAA policy that personnel will comply with the DCAA
Privacy Program; the Privacy Act of 1974; and the DoD Privacy Program
(32 CFR part 310). Strict adherence is necessary to ensure uniformity
in the implementation of the DCAA Privacy Program and create conditions
that will foster public trust. It is also Agency policy to safeguard
personal information contained in any system of records maintained by
DCAA organizational elements and to make that information available to
the individual to whom it pertains to the maximum extent practicable.
(b) DCAA policy specifically requires that DCAA organizational
elements:
(1) Collect, maintain, use, and disseminate personal information
only when it is relevant and necessary to
[[Page 7116]]
achieve a purpose required by statute or Executive Order.
(2) Collect personal information directly from the individuals to
whom it pertains to the greatest extent practical.
(3) Inform individuals who are asked to supply personal information
for inclusion in any system of records:
(i) The authority for the solicitation.
(ii) Whether furnishing the information is mandatory or voluntary.
(iii) The intended uses of the information.
(iv) The routine disclosures of the information that may be made
outside of DoD.
(v) The effect on the individual of not providing all or any part
of the requested information.
(4) Ensure that records used in making determinations about
individuals and those containing personal information are accurate,
relevant, timely, and complete for the purposes for which they are
being maintained before making them available to any recipients outside
of DoD, other than a Federal agency, unless the disclosure is made
under DCAA Regulation 5410.8, DCAA Freedom of Information Act Program.
(5) Keep no record that describes how individuals exercise their
rights guaranteed by the First Amendment to the U.S. Constitution,
unless expressly authorized by statute or by the individual to whom the
records pertain or is pertinent to and within the scope of an
authorized law enforcement activity.
(6) Notify individuals whenever records pertaining to them are made
available under compulsory legal processes, if such process is a matter
of public record.
(7) Establish safeguards to ensure the security of personal
information and to protect this information from threats or hazards
that might result in substantial harm, embarrassment, inconvenience, or
unfairness to the individual.
(8) Establish rules of conduct for DCAA personnel involved in the
design, development, operation, or maintenance of any system of records
and train them in these rules of conduct.
(9) Assist individuals in determining what records pertaining to
them are being collected, maintained, used, or disseminated.
(10) Permit individual access to the information pertaining to them
maintained in any system of records, and to correct or amend that
information, unless an exemption for the system has been properly
established for an important public purpose.
(11) Provide, on request, an accounting of all disclosures of the
information pertaining to them except when disclosures are made:
(i) To DoD personnel in the course of their official duties.
(ii) Under DCAA Regulation 5410.8, DCAA Freedom of Information Act
Program.
(iii) To another agency or to an instrumentality of any
governmental jurisdiction within or under control of the United States
conducting law enforcement activities authorized by law.
(12) Advise individuals on their rights to appeal any refusal to
grant access to or amend any record pertaining to them, and file a
statement of disagreement with the record in the event amendment is
refused.
Sec. 317.4 Responsibilities.
(a) The Assistant Director, Resources has overall responsibility
for the DCAA Privacy Act Program and will serve as the sole appellate
authority for appeals to decisions of respective initial denial
authorities.
(b) The Chief, Administrative Management Division under the
direction of the Assistant Director, Resources, shall:
(1) Establish, issue, and update policies for the DCAA Privacy Act
Program; monitor compliance with this part; and provide policy guidance
for the DCAA Privacy Act Program.
(2) Resolve conflicts that may arise regarding implementation of
DCAA Privacy Act policy.
(3) Designate an Agency Privacy Act Advisor, as a single point of
contact, to coordinate on matters concerning Privacy Act policy.
(4) Make the initial determination to deny an individual's written
Privacy Act request for access to or amendment of documents filed in
Privacy Act systems of records. This authority cannot be delegated.
(c) The DCAA Privacy Act Advisor under the supervision of the
Chief, Administrative Management Division shall:
(1) Manage the DCAA Privacy Act Program in accordance with this
part and applicable DCAA policies, as well as DoD and Federal
regulations.
(2) Provide guidelines for managing, administering, and
implementing the DCAA Privacy Act Program.
(3) Implement and administer the Privacy Act program at the
Headquarters.
(4) Ensure that the collection, maintenance, use, or dissemination
of records of identifiable personal information is in a manner that
assures that such action is for a necessary and lawful purpose; that
the information is timely and accurate for its intended use; and that
adequate safeguards are provided to prevent misuse of such information.
(5) Prepare promptly any required new, amended, or altered system
notices for systems of records subject to the Privacy Act and submit
them to the Defense Privacy Office for subsequent publication in the
Federal Register.
(6) Conduct training on the Privacy Act program for Agency
personnel.
(d) Heads of Principal Staff Elements are responsible for:
(1) Reviewing all regulations or other policy and guidance
issuances for which they are the proponent to ensure consistency with
the provisions of this part.
(2) Ensuring that the provisions of this part are followed in
processing requests for records.
(3) Forwarding to the DCAA Privacy Act Advisor, any Privacy Act
requests received directly from a member of the public, so that the
request may be administratively controlled and processed.
(4) Ensuring the prompt review of all Privacy Act requests, and
when required, coordinating those requests with other organizational
elements.
(5) Providing recommendations to the DCAA Privacy Act Advisor
regarding the releasability of DCAA records to members of the public,
along with the responsive documents.
(6) Providing the appropriate documents, along with a written
justification for any denial, in whole or in part, of a request for
records to the DCAA Privacy Act Advisor. Those portions to be excised
should be bracketed in red pencil, and the specific exemption or
exemptions cites which provide the basis for denying the requested
records.
(e) The General Counsel is responsible for:
(1) Ensuring uniformity is maintained in the legal position, and
the interpretation of the Privacy Act; 32 CFR part 310; and this part.
(2) Consulting with DoD General Counsel on final denials that are
inconsistent with decisions of other DoD components, involve issues not
previously resolved, or raise new or significant legal issues of
potential significance to other Government agencies.
(3) Providing advice and assistance to the Assistant Director,
Resources; Regional Directors; and the Regional Privacy Act Officer,
through the DCAA Privacy Act Advisor, as required, in the discharge of
their responsibilities.
[[Page 7117]]
(4) Coordinating Privacy Act litigation with the Department of
Justice.
(5) Coordinating on Headquarters denials of initial requests.
(f) Each Regional Director is responsible for the overall
management of the Privacy Act program within their respective regions.
Under his/her direction, the Regional Resources Manager is responsible
for the management and staff supervision of the program and for
designating a Regional Privacy Act Officer. Regional Directors will, as
designee of the Director, make the initial determination to deny an
individual's written Privacy Act request for access to or amendment of
documents filed in Privacy Act systems of records. This authority
cannot be delegated.
(g) Regional Privacy Act Officers will:
(1) Implement and administer the Privacy Act program throughout the
region.
(2) Ensure that the collection, maintenance, use, or dissemination
of records of identifiable personal information is in compliance with
this part to assure that such action is for a necessary and lawful
purpose; that the information is timely and accurate for its intended
use; and that adequate safeguards are provided to prevent misuse of
such information.
(3) Prepare input for the annual Privacy Act Report when requested
by the DCAA Information and Privacy Advisor.
(4) Conduct training on the Privacy Act program for regional and
FAO personnel.
(5) Provide recommendations to the Regional Director through the
Regional Resources Manager regarding the releasability of DCAA records
to members of the public.
(h) Managers, Field Audit Offices (FAOs) will:
(1) Ensure that the provisions of this part are followed in
processing requests for records.
(2) Forward to the Regional Privacy Act Officer, any Privacy Act
requests received directly from a member of the public, so that the
request may be administratively controlled and processed.
(3) Ensure the prompt review of all Privacy Act requests, and when
required, coordinating those requests with other organizational
elements.
(4) Provide recommendation to the Regional Privacy Act Officer
regarding the releasability of DCAA records to members of the public,
along with the responsive documents.
(5) Provide the appropriate documents, along with a written
justification for any denial, in whole or in part, of a request for
records to the Regional Privacy Act Officer. Those portions to be
excised should be bracketed in red pencil, and the specific exemption
or exemptions cited which provide the basis for denying the requested
records.
(i) DCAA Employees will:
(1) Not disclose any personal information contained in any system
of records, except as authorized by this part.
(2) Not maintain any official files which are retrieved by name or
other personal identifier without first ensuring that a notice for the
system has been published in the Federal Register.
(3) Report any disclosures of personal information from a system of
records or the maintenance of any system of records that are not
authorized by this part to the appropriate Privacy Act officials for
their action.
Sec. 317.5 Procedures.
Procedures for processing material in accordance with the Privacy
Act of 1974 are outlined in DoD 5400.11-R, DoD Privacy Program (32 CFR
part 310).
Sec. 317.6 Procedures for exemptions.
(a) General information. There are two types of exemptions, general
and specific. The general exemption authorizes the exemption of a
system of records from all but a few requirements of the Privacy Act.
The specific exemption authorizes exemption of a system of records or
portion thereof, from only a few specific requirements. If a new system
of records originates for which an exemption is proposed, or an
additional or new exemption for an existing system of records is
proposed, the exemption shall be submitted with the system of records
notice. No exemption of a system of records shall be considered
automatic for all records in the system. The systems manager shall
review each requested record and apply the exemptions only when this
will serve significant and legitimate Government purposes.
(b) Specific Exemptions. (1) System identifier and name: RDCAA
900.1, DCAA Internal Review Case Files
(i) Exemption: Any portions of this system of records which fall
under the provisions of 5 U.S.C. 552a(k)(2) and (k)(5) may be exempt
from the following subsections of 5 U.S.C. 552a: (c)(3), (d), (e)(1),
(e)(4)(G), (H), and (f).
(ii) Authority: 5 U.S.C. 552a(k)(2) and (k)(5).
(iii) Reason: (A) From subsection (c)(3) because disclosures from
this system could interfere with the just, thorough and timely
resolution of the complaint or inquiry, and possibly enable individuals
to conceal their wrongdoing or mislead the course of the investigation
by concealing, destroying or fabricating evidence or documents.
(B) From subsection (d) because disclosures from this system could
interfere with the just, thorough and timely resolution of the
complaint or inquiry, and possibly enable individuals to conceal their
wrongdoing or mislead the course of the investigation by concealing,
destroying or fabricating evidence or documents. Disclosures could also
subject sources and witnesses to harassment or intimidation which
jeopardize the safety and well-being of themselves and their families.
(C) From subsection (e)(1) because the nature of the investigation
functions creates unique problems in prescribing specific parameters in
a particular case as to what information is relevant or necessary. Due
to close liaison and working relationships with other Federal, state,
local, foreign country law enforcement agencies, and other governmental
agencies, information may be received which may relate to a case under
the investigative jurisdiction of another government agency. It is
necessary to maintain this information in order to provide leads for
appropriate law enforcement purposes and to establish patterns of
activity which may relate to the jurisdiction of other cooperating
agencies.
(D) From subsection (e)(4)(G) through (H) because this system of
records is exempt from the access provisions of subsection (d).
(E) From subsection (f) because the agency's rules are inapplicable
to those portions of the system that are exempt and would place the
burden on the agency of either confirming or denying the existence of a
record pertaining to a requesting individual might in itself provide an
answer to that individual relating to an on-going investigation. The
conduct of a successful investigation leading to the indictment of a
criminal offender precludes the applicability of established agency
rules relating to verification of record, disclosure of the record to
that individual, and record amendment procedures for this record
system.
Dated: January 21, 2014.
Patricia L. Toppings,
OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2014-01882 Filed 2-5-14; 8:45 am]
BILLING CODE 5001-06-P
