Rule2021-15600
Privacy Act of 1974; Implementation
Primary source
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Published
July 22, 2021
Effective
September 30, 2021
Issuing agencies
Defense Department
Abstract
The Department of Defense (DoD or Department) is giving concurrent notice of a new Department-wide system of records DoD 0007, "Defense Reasonable Accommodation and Assistive Technology Records," and this rulemaking, which exempts portions of this system of records from certain provisions of the Privacy Act of 1974, as amended, because of national security requirements. This rule is being published as a direct final rule as the Department does not expect to receive any adverse comments. If such comments are received, this direct final rule will be withdrawn and a proposed rule for comments will be published.
Full Text
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<title>Federal Register, Volume 86 Issue 138 (Thursday, July 22, 2021)</title>
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[Federal Register Volume 86, Number 138 (Thursday, July 22, 2021)]
[Rules and Regulations]
[Pages 38560-38562]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-15600]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DoD-2021-OS-0054]
RIN 0790-AL14
Privacy Act of 1974; Implementation
AGENCY: Office of the Secretary of Defense, Department of Defense
(DoD).
ACTION: Direct final rule with request for comments.
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SUMMARY: The Department of Defense (DoD or Department) is giving
concurrent notice of a new Department-wide system of records DoD 0007,
``Defense Reasonable Accommodation and Assistive Technology Records,''
and this rulemaking, which exempts portions of this system of records
from certain provisions of the Privacy Act of 1974, as amended, because
of national security requirements. This rule is being published as a
direct final rule as the Department does not expect to receive any
adverse comments. If such comments are received, this direct final rule
will be withdrawn and a proposed rule for comments will be published.
DATES: The rule is effective on September 30, 2021 unless comments are
received that would result in a contrary determination. Comments will
be accepted on or before September 20, 2021. If adverse comment is
received, the Department will publish a timely withdrawal of the rule
in the Federal Register.
ADDRESSES: You may submit comments, identified by docket number and
title, by any of the following methods.
* Federal eRulemaking Portal: <a href="https://www.regulations.gov">https://www.regulations.gov</a>.
Follow the instructions for submitting comments.
* Mail: The DoD cannot receive written comments at this time due to
the COVID-19 pandemic. Comments should be sent electronically to the
docket listed above.
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 <a href="https://www.regulations.gov">https://www.regulations.gov</a> as they are received without change, including any
personal identifiers or contact information.
FOR FURTHER INFORMATION CONTACT: Ms. Lyn Kirby, <a href="/cdn-cgi/l/email-protection#aae5f9ee84eefae9e6feeeeac7cbc3c684c7c3c6"><span class="__cf_email__" data-cfemail="fab5a9bed4beaab9b6aebeba979b9396d4979396">[email protected]</span></a>,
(703) 571-0070.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, DoD is establishing a
new Department-wide system of records titled DoD 0007, ``Defense
Reasonable Accommodation and Assistive Technology Records.'' This
system of records covers both electronic and paper records and will be
used by DoD components and offices to maintain records about
accommodations based on disability requested by or provided to
employees and applicants for employment and participants in DoD
programs and activities. The Rehabilitation Act of 1973, as amended,
generally requires Federal agencies to provide accommodations which
enable individuals with disabilities to perform DoD employment and
participate in DoD programs and activities, unless such accommodation
would impose an undue burden. In addition, DoD's Computer/Electronic
Accommodations Program (CAP) provides assistive (computer/electronic)
technology solutions to individuals--including injured, wounded, or ill
Service members--with hearing, vision, dexterity, cognitive, and/or
communications impairments in the form of an accessible work
environment. This also includes the request and delivery of personal
assistance services for covered individuals. Such disability
accommodations include: (1) Making existing facilities readily
accessible to and usable by individuals with disabilities; (2) job
restructuring, modification of work schedules or place of work,
extended leave, telecommuting, or reassignment to a vacant position;
and/or (3) acquisition or modification of equipment or devices,
including computer software and hardware, appropriate adjustments or
modifications of examinations, training materials or policies, the
provision of qualified readers and/or interpreters, personal
assistants, service animals, and other similar accommodations.
II. Privacy Act Exemption
The Privacy Act permits Federal agencies to exempt eligible records
in a system of records from certain provisions of the Act, including
the provisions providing individuals with a right to request access to
and amendment of their own records and accountings of disclosures of
such records. If an agency intends to exempt a particular system of
records, it must first go through the rulemaking process to provide
public notice and an opportunity to comment on the proposed exemption.
The Office of the Secretary is amending 32 CFR part 310 to add a new
Privacy Act exemption rule for this system of records. The DoD is
adding an exemption for this system of records because some of its
records may contain classified national security information and
providing notice, access, amendment, and disclosure of accounting of
those records to an individual, as well as certain record-keeping
requirements, may cause damage to national security. The Privacy Act,
pursuant to 5 U.S.C. 552a(k)(1), authorizes agencies to claim an
exemption for systems of records that contain information properly
classified pursuant to executive order. The DoD is claiming an
exemption from several provisions of the Privacy Act, including various
access, amendment, disclosure of accounting, and certain record-keeping
and notice requirements, to prevent disclosure of any information
properly classified pursuant to executive order, as implemented by DoD
Instruction 5200.01 and DoD Manual 5200.01, Volumes 1 and 3.
III. Direct Final Rulemaking
This rule is being published as a direct final rule as the
Department does not expect to receive any significant adverse comments.
If such comments are received, this direct final rule will be withdrawn
and a proposed rule for comments will be published. If no such comments
are received, this direct final rule will become effective ten days
after the comment period expires.
For purposes of this rule, a significant adverse comment is one
that explains (1) why the rule is inappropriate, including challenges
to the rule's underlying premise or approach; or (2) why the direct
final rule will be ineffective or unacceptable without a change. In
determining whether a significant adverse comment necessitates
withdrawal of this direct final rule, the Department will consider
whether the comment raises an issue serious enough to warrant a
substantive response had it been submitted in a
[[Page 38561]]
standard notice-and-comment process. A comment recommending an addition
to the rule will not be considered significant and adverse unless the
comment explains how this direct final rule would be ineffective
without the addition.
An agency typically uses direct final rulemaking when it
anticipates the rule will be non-controversial. The Department has
determined that this rule is suitable for direct final rulemaking. The
rule exempts this Privacy Act system of records on the basis that it
may contain classified information. This exemption relieves the
Department from the requirements of several provisions of the Privacy
Act, including various access, amendment, disclosure of accounting, and
certain recordkeeping and notice requirements. The purpose of the rule
is to prevent disclosure of any information properly classified
pursuant to executive order and protect against harm to the national
security. This exemption should not be controversial and is consistent
with federal law and policy regarding the appropriate handling and
protection of national security information. Accordingly, pursuant to 5
U.S.C. 553(b), the Department has for good cause determined that the
notice and comment requirements are unnecessary.
This direct final rule adds to the DoD's Privacy Act exemptions for
Department-wide systems of records found in 32 CFR 310.13. Records in
this system of records are only exempt from the Privacy Act to the
extent the purposes underlying the exemption pertain to the record.
A notice of a new system of records for DoD 0007 is also published
in this issue of the Federal Register.
Regulatory Analysis
Executive Order 12866, ``Regulatory Planning and Review'' and Executive
Order 13563, ``Improving Regulation and Regulatory Review''
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distribute impacts, and equity). Executive
Order 13563 also emphasizes the importance of quantifying both costs
and benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. It has been determined that Privacy Act rules for the DoD
are not significant rules under these Executive orders.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
It has been determined that the Privacy Act rules for the DoD does
not involve Federal mandates 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 rules will not
significantly or uniquely affect small governments.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
It has been determined that Privacy Act rules for the DoD impose no
additional reporting or recordkeeping requirements on the public under
the Paperwork Reduction Act of 1995.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)
It has been certified that this Privacy Act rule for the DoD does
not have significant economic impacts on a substantial number of small
entities because they are concerned only with the administration of
Privacy Act systems of records within the DoD.
Congressional Review Act
Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), it
has been determined that this direct final rule is not a major rule, as
defined by 5 U.S.C. 804(2).
Executive Order 13132, ``Federalism''
It has been determined that the Privacy Act rules for the DoD do
not have federalism implications. The rules do not have substantial
direct effects on the States, on the relationship between the National
Government and the States, or on the distribution of power and
responsibilities among the various levels of government.
List of Subjects in 32 CFR Part 310
Privacy.
Accordingly, 32 CFR part 310 is amended as follows:
PART 310--[AMENDED]
0
1. The authority citation for part 310 continues to read as follows:
Authority: 5 U.S.C. 552a.
0
2. Amend Sec. 310.13 by adding reserve paragraph (e)(3), (4), and (5)
and paragraph (e)(6) to read as follows:
Sec. 310.13 Exemptions for DoD-wide systems.
* * * * *
(e) * * *
(6) System identifier and name. DoD 0007, ``Defense Reasonable
Accommodation and Assistive Technology Records.''
(i) Exemptions. This system of records is exempt from 5 U.S.C.
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(4)(G), (H), and (I);
and (f).
(ii) Authority. 5 U.S.C. 552a(k)(1).
(iii) Exemption from the particular subsections. Exemption from the
particular subsections pursuant to exemption (k)(1) is justified for
the following reasons:
(A) Subsections (c)(3), (c)(4), (d)(1), and (d)(2). Records in this
system of records may contain information concerning individuals that
is properly classified pursuant to executive order. Application of
exemption (k)(1) for such records may be necessary because access to
and amendment of the records, or release of the accounting of
disclosures for such records, could reveal classified information.
Disclosure of classified records to an individual may cause damage to
national security. Accordingly, application of exemption (k)(1) may be
necessary.
(B) Subsections (d)(3) and (4). Subsections (d)(3) and (4) are
inapplicable to the extent an exemption is claimed from (d)(2).
(C) Subsections (e)(4)(G) and (H) and Subsection (f). Subsections
(e)(4)(G) and (H) and subsection (f) are inapplicable to the extent
exemption is claimed from the access and amendment provisions of
subsection (d). Because portions of this system are exempt from the
individual access and amendment provisions of subsection (d) for the
reasons noted in paragraphs (e)(6)(iii)(A) and (B) of this section, DoD
is not required to establish requirements, rules, or procedures with
respect to such access or amendment provisions. Providing notice to
individuals with respect to the existence of records pertaining to them
in the system of records or otherwise setting up procedures pursuant to
which individuals may access, view, and seek to amend records
pertaining to themselves in the system would potentially undermine
national security and the confidentiality of classified information.
Accordingly, application of exemption (k)(1) may be necessary.
(D) Subsection (e)(4)(I). To the extent that subsection (e)(4)(I)
is construed to require more detailed disclosure than the broad
information currently published in the system notice concerning
categories of sources of records in the system, an exemption from this
provision is necessary to protect national security and the
confidentiality of sources and methods, and other classified
information.
(iv) Exempt records from other systems. In the course of carrying
out
[[Page 38562]]
the overall purpose for this system, exempt records from other systems
of records may in turn become part of the records maintained in this
system. To the extent that copies of exempt records from those other
systems of records are maintained in 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 prior system(s) of which
they are a part, provided the reason for the exemption remains valid
and necessary.
Dated: July 19, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-15600 Filed 7-21-21; 8:45 am]
BILLING CODE 5001-06-P
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