Privacy Act of 1974; Implementation, 31561-31563 [2016-11702]

Agencies

• DEPARTMENT OF DEFENSE
• Office of the Secretary

[Federal Register Volume 81, Number 97 (Thursday, May 19, 2016)]
[Proposed Rules]
[Pages 31561-31563]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-11702]


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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2016-OS-0059]


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary of Defense, DoD.

ACTION: Notice of proposed rulemaking.

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SUMMARY: The Office of the Secretary of Defense proposes to exempt 
records maintained in DUSDI 01-DoD ``Department of Defense (DoD) 
Insider Threat Management and Analysis Center (DITMAC) and DoD 
Component Insider Threat Records System,'' from subsections (c)(3) and 
(4); (d)(1), (2), (3), and (4); (e)(1), (2), (3), (4)(G), (H), and (I), 
(5), and (8); (f); and (g) of the Privacy Act. A system of records 
notice for this system has been published today in the Federal 
Register.
    In addition, in the course of carrying out collections and analysis 
of information in connection with the operations of the DITMAC and DoD 
Component insider threat programs, exempt records received from other 
systems of records may become part of this system. To the extent that 
copies of exempt records from those other systems of records are 
maintained in this system, the Department also claims the same 
exemptions for the records from those other systems that are maintained 
in this system, as claimed for the original primary system of which 
they are a part.

DATES: In accordance with 5 U.S.C. 552a(e)(4) and (11), the public is 
given a 30-day period in which to comment. Therefore, please submit any 
comments by June 20, 2016.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods:
     Federal Rulemaking Portal: https://www.regulations.gov. 
Follow the instructions for submitting comments.
     Mail: Department of Defense, Deputy Chief Management 
Officer, Directorate for Oversight and Compliance, 4800 Mark Center 
Drive, ATTN: Box 24, Alexandria, VA 22350-1700.
    Instructions: All submissions received must include the agency name 
and docket number for this Federal Register document. The general 
policy for comments and other submissions from members of the public is 
to make these submissions available for public viewing on the Internet 
at https://www.regulations.gov as they are received without change, 
including any personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Cindy Allard, Director of the Defense 
Privacy, Civil Liberties, and Transparency Division, 703-571-0070.

SUPPLEMENTARY INFORMATION: The DITMAC was established by the Under 
Secretary of Defense for Intelligence in order to consolidate and 
analyze insider threat information reported by the DoD Component 
insider threat programs

[[Page 31562]]

mandated by Presidential Executive Order 13587, issued October 7, 2011, 
which required Federal agencies to establish an insider threat 
detection and prevention program to ensure the security of classified 
networks and the responsible sharing and safeguarding of classified 
information consistent with appropriate protections for privacy and 
civil liberties. For purposes of this system of records, the term 
``insider threat'' is defined in the Minimum Standards for Executive 
Branch Insider Threat Task Force based on direction provided in Section 
6.3(b) of Executive Order 13587. The DITMAC helps prevent, deter, 
detect, and/or mitigate the potential threat that personnel, including 
DoD military personnel, civilian employees, and contractor personnel, 
who have or had been granted eligibility for access to classified 
information or eligibility to hold a sensitive position may harm the 
security of the United States. This threat can include damage to the 
United States through espionage, terrorism, unauthorized disclosure of 
national security information, or through the loss or degradation of 
departmental resources or capabilities.
    The system of records will be used to analyze, monitor, and audit 
insider threat information for insider threat detection and mitigation 
within DoD on threats that persons who have or had been granted 
eligibility for access to classified information or eligibility to hold 
a sensitive positions may pose to DoD and U.S. Government 
installations, facilities, personnel, missions, or resources. The 
system of records will support the DITMAC and DoD Component insider 
threat programs, enable the identification of systemic insider threat 
issues and challenges, and provide a basis for the development and 
recommendation of solutions to deter, detect, and/or mitigate potential 
insider threats. It will assist in identifying best practices among 
other Federal Government insider threat programs, through the use of 
existing DoD resources and functions and by leveraging existing 
authorities, policies, programs, systems, and architectures.

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

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

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

    It has been determined that this rule does not impose additional 
information collection requirements on the public under the Paperwork 
Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

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

    It has been determined that this rule 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 it will not significantly or uniquely affect 
small governments.

Executive Order 13132, ``Federalism''

    It has been determined that this rule does not have federalism 
implications. This rule does not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government.

List of Subjects in 32 CFR Part 310

    Privacy.

    Accordingly, 32 CFR part 310 is proposed to be amended as follows:

PART 310 [Amended]

0
1. The authority citation for 32 CFR part 310 continues to read as 
follows:

    Authority: 5 U.S.C. 552a.


Sec. Sec.  310.30  through 310.53 [Redesignated as Sec. Sec.  310.31 
through 310.54]

0
2. Redesignate Sec.  310.30 through Sec.  310.53 as Sec.  310.31 
through Sec.  310.54.
0
3. In Subpart F, add a new Sec.  310.30 to read as follows:


Sec.  310.30  DoD-wide exemptions.

    (a) Use of DoD-wide exemptions. DoD-wide exemptions for DOD-wide 
systems of records are established pursuant to 5 U.S.C. 552a(j) and (k) 
of the Privacy Act.
    (b) Promises of confidentiality. (1) Only the identity of sources 
that have been given an express promise of confidentiality may be 
protected from disclosure under paragraphs (d)(3)(i), (ii), and (iii) 
and (d)(4) of this section. However, the identity of sources who were 
given implied promises of confidentiality in inquiries conducted before 
September 27, 1975, also may be protected from disclosure.
    (2) Ensure promises of confidentiality are not automatically given 
but are used sparingly. Establish appropriate procedures and identify 
fully categories of individuals who may make such promises. Promises of 
confidentiality shall be made only when they are essential to obtain 
the information sought (see 5 CFR part 736).
    (c) Access to records for which DOD-wide exemptions are claimed. 
Deny the individual access only to those portions of the records for 
which the claimed exemption applies.
    (d) DoD-wide exemptions. The following exemptions are applicable to 
all components of the Department of Defense for the following system(s) 
of records:
    (1) System identifier and name: DUSDI 01-DoD ``Department of 
Defense (DoD) Insider Threat Management and Analysis Center (DITMAC) 
and DoD Component Insider Threat Records System.'' Exemption: This 
system of records is exempted from subsections (c)(3) and (4); (d)(1), 
(2), (3) and (4); (e)(1), (2), (3), (4)(G)(H) and (I), (5) and (8); and 
(g) of the Privacy Act pursuant to 5 U.S.C. 552a(j) (2) and (k)(1), 
(2), (4), (5), (6), and (7).
    (2) Records are only exempt from pertinent provisions of 5 U.S.C. 
552a to the extent that such provisions have been identified and an 
exemption claimed for the record and the purposes underlying the 
exemption for the record pertain to the record.
    (3) Exemption from the particular subsections is justified for the 
following reasons:
    (i) Subsection (c)(3). To provide the subject with an accounting of 
disclosures of records in this system could inform that individual of 
the existence, nature, or scope of an actual or potential law 
enforcement or counterintelligence investigation, and thereby seriously 
impede law enforcement or counterintelligence efforts by permitting the 
record subject and other persons to whom he might disclose the records 
to avoid criminal

[[Page 31563]]

penalties, civil remedies, or counterintelligence measures. Access to 
the accounting of disclosures could also interfere with a civil or 
administrative action or investigation which may impede in those 
actions or investigations. Access also could reveal the identity of 
confidential sources incident to Federal employment, military service, 
contract, and security clearance determinations.
    (ii) Subsection (c)(4). This subsection is inapplicable to the 
extent that an exemption is being claimed for subsection (d).
    (iii) Subsection (d)(1). Disclosure of records in the system could 
reveal the identity of confidential sources and result in an 
unwarranted invasion of the privacy of others. Disclosure may also 
reveal information relating to actual or potential criminal 
investigations. Disclosure of classified national security information 
would cause damage to the national security of the United States. 
Disclosure could also interfere with a civil or administrative action 
or investigation; reveal the identity of confidential sources incident 
to Federal employment, military service, contract, and security 
clearance determinations; and reveal the confidentiality and integrity 
of Federal testing materials and evaluation materials used for military 
promotions when furnished by a confidential source.
    (iv) Subsection (d)(2). Amendment of the records could interfere 
with ongoing criminal or civil law enforcement proceedings and impose 
an impossible administrative burden by requiring investigations to be 
continuously reinvestigated.
    (v) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent exemption is claimed from (d)(1) and (2).
    (vi) Subsection (e)(1). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement and counterintelligence, it is necessary to retain this 
information to aid in establishing patterns of activity and provide 
investigative leads.
    (vii) Subsection (e)(2). To collect information from the subject 
individual could serve notice that he or she is the subject of a 
criminal investigation and thereby present a serious impediment to such 
investigations.
    (viii) Subsection (e)(3). To inform individuals as required by this 
subsection could reveal the existence of a criminal investigation and 
compromise investigative efforts.
    (ix) Subsection (e)(4)(G), (H), and (I). These subsections are 
inapplicable to the extent exemption is claimed from (d)(1) and (2).
    (x) Subsection (e)(5). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement, it is necessary to retain this information to aid in 
establishing patterns of activity and provide investigative leads.
    (xi) Subsection (e)(8). To serve notice could give persons 
sufficient warning to evade investigative efforts.
    (xii) Subsection (g). This subsection is inapplicable to the extent 
that the system is exempt from other specific subsections of the 
Privacy Act.
    (4) In addition, in the course of carrying out analysis for insider 
threats, exempt records from other systems of records may in turn 
become part of the case records maintained in this system. To the 
extent that copies of exempt records from those other systems of 
records are maintained into this system, the DoD claims the same 
exemptions for the records from those other systems that are entered 
into this system, as claimed for the original primary system of which 
they are a part.

    Dated: May 13, 2016.
Aaron Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2016-11702 Filed 5-18-16; 8:45 am]
BILLING CODE 5001-06-P