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Privacy Act; Implementation

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Office of the Secretary, DoD.


Final rule.


The Office of the Secretary of Defense is exempting those records contained in DCIFA 01, entitled “CIFA Operational and Analytical Records” when an exemption has been previously claimed for the records in another Privacy Act system of records. The exemption will preserve the exempt Start Printed Page 34657status of the record when the purposes underlying the exemption for the original record is still valid and necessary to protect the contents of the record.


July 15, 2005.

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Mrs. Juanita Irvin at (703) 601-4722.

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The proposed rule was published on February 25, 2005, at 70 FR 9260-9261. One public comment was received where the commenter expressed a number of concerns that the rule violates the spirit and letter of the Privacy Act. The commenter observes that it is objectionable for the Department to borrow exemptions from other systems of records. We disagree. The public policy that dictates the need for exempting records is based on the need to protect the contents of the records in the system—not the location of the records. The record does not lose its exempt status when recompiled in another system of records if the purposes underlying the exemption of the original record pertain to the recompilation as well. The commenter expresses concern that adoption of the rule will enable the Department to shield documents that heretofore have been made available to individuals and will prevent citizens and lawful residents from obtaining access to records about themselves. We disagree. As provided by law, the rule provides a basis for the Department to exempt specified records from certain provisions of the Act. It does not act to suspend any rights the individual otherwise may be entitled to under the law. To the extent the records were available to the individual formerly or to the extent the individual could obtain access to those records previously, the individual still will be able to obtain/access the records. But to the extent the records were not obtainable or not accessible before, the rule will permit the Department to continue to protect the records as is contemplated by the rule for the original records. And finally, the commenter observes that the Department is attempting to create a new exemption, a prerogative that only Congress possesses. We disagree. The Department is not establishing a new exemption. Rather, within the framework of existing law, the Department is adopting a rule that will protect the records to the same extent the records are now protected by a rule that has been adopted for the system of records from which the record was lawfully obtained.

Executive Order 12866, “Regulatory Planning and Review”

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

Pub. L. 96-354, “Regulatory Flexibility Act” (5 U.S.C. Chapter 6)

It has been determined that Privacy Act rules for the Department of Defense do not have significant economic impact on a substantial number of small entities because they are concerned only with the administration of Privacy Act systems of records within the Department of Defense.

Pub. L. 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

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

Section 202, Pub. L. 104-4, “Unfunded Mandates Reform Act”

It has been determined that 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 Privacy Act rules for the Department of Defense do not have federalism implications. The rules do not have substantial direct effects on the States, on the relationship between the National Government and the States, or on the distribution of power and responsibilities among the various levels of government.

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Dated: June 8, 2005.

Jeannette Owings-Ballard,

OSD Federal Register Liaison Officer, Department of Defense.

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List of Subjects in 32 CFR Part 311

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

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

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Authority: Pub. L. 93-579, 88 Stat. 1896 (5 U.S.C. 552a).

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2. Section 311.8 is amended by adding paragraph (c)(15) as follows:

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Procedures for exemptions.
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(c) Specific exemptions. * * *

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(15) System identifier and name: DCIFA 01, CIFA Operational and Analytical Records.

(i) Exemptions: This system of records is a compilation of information from other Department of Defense and U.S. Government systems of records. To the extent that copies of exempt records from those ‘other’ systems of records are entered into this system, OSD hereby 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.

(ii) Authority: 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(4), (k)(5), (k)(6), and (k)(7).

(iii) Records are only exempt from pertinent provisions of 5 U.S.C. 552a to the extent (1) such provisions have been identified and an exemption claimed for the original record and (2) the purposes underlying the exemption for the original record still pertain to the record which is now contained in this system of records. In general, the exemptions are claimed in order to protect properly classified information relating to national defense and foreign policy, to avoid interference during the conduct of criminal, civil, or administrative actions or investigations, to ensure protective services provided the President and others are not compromised, to protect the identity of confidential sources incident to Federal employment, military service, contract, and security clearance determinations, and to preserve the confidentiality and integrity of Federal evaluation materials. The exemption rule for the original records will identify the specific reasons Start Printed Page 34658why the records are exempt from specific provisions of 5 U.S.C. 552a.

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[FR Doc. 05-11814 Filed 6-14-05; 8:45 am]