Rule2022-18985
Privacy Act of 1974; Implementation
Primary source
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Published
September 2, 2022
Effective
November 14, 2022
Issuing agencies
Defense Department
Abstract
The Department of Defense (DoD or Department) is giving concurrent notification of a new Department-wide system of records titled "DoD Historical Records," DoD-0014, 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 because 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 If such comments are received, this direct final rule will be withdrawn and a proposed rule for comments will be published.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 87 Issue 170 (Friday, September 2, 2022)</title>
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[Federal Register Volume 87, Number 170 (Friday, September 2, 2022)]
[Rules and Regulations]
[Pages 54152-54154]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-18985]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DOD-2022-OS-0094]
RIN 0790-AL28
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 notification of a new Department-wide system of records
titled ``DoD Historical Records,'' DoD-0014, 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
because 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If such comments are received, this direct final rule will be withdrawn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 will be effective on November 14, 2022, unless comments
are received that would result in a contrary determination. Comments
will be accepted on or before November 1, 2022. 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,
Regulation Identifier Number (RIN), 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: Department of Defense, Office of the Assistant to the
Secretary of Defense for Privacy, Civil Liberties, and Transparency,
Regulatory Directorate, 4800 Mark Center Drive, Attn: Mailbox 24, Suite
08D09, Alexandria, VA 22350-1700.
Instructions: All submissions received must include the agency name
and docket number or 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. Rahwa Keleta, Privacy and Civil
Liberties Division, Directorate for Privacy, Civil Liberties and
Freedom of Information, Office of the Assistant to the Secretary of
Defense for Privacy, Civil Liberties, and Transparency, Department of
Defense, 4800 Mark Center Drive, Mailbox #24, Suite 08D09, Alexandria,
VA 22350-1700; <a href="/cdn-cgi/l/email-protection#da95899ef49e8a99968e9e9ab7bbb3b6f4b7b3b6"><span class="__cf_email__" data-cfemail="b1fee2f59ff5e1f2fde5f5f1dcd0d8dd9fdcd8dd">[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 Historical
Records,'' DoD-0014. The purpose of this system of records is to
collect, preserve, and present the history of the Department of
Defense, in order to support Agency leadership and inform the American
public. To further this mission, the Department is authorized to gather
individuals' information to prepare and publish historical reports,
provide historically relevant information for advisory panels and
commissions, organize historical presentations and prepare historical
studies. The DoD Historical Records system of records contains
information on DoD civilian employees, uniformed service members,
contractors, and other DoD-affiliated individuals. This system of
records contains data derived from government records (Federal, state,
and local), information collected directly from individuals,
international government and non-government organizations, and publicly
available information.
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 notification and an opportunity to comment on the 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
claiming an exemption for this system of records because some of its
records may contain classified national security information, and
providing notification, access, amendment, and disclosure of accounting
of those records to an individual, as well as certain recordkeeping
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. DoD is claiming an exemption
from several provisions of the Privacy Act, including various access,
amendment, disclosure of accounting, and certain recordkeeping and
notification 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.
[[Page 54153]]
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 rulemaking, 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 that would have warranted a
substantive response had it been submitted in response to a standard
notification of a proposed rule. 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.
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-0014 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 emphasizes the importance of quantifying both costs and
benefits, of reducing costs, of harmonizing rules, and of promoting
flexibility. It has been determined that this rule is not a significant
regulatory action under these Executive orders.
Congressional Review Act
The Congressional Review Act, 5 U.S.C. 801 et seq., generally
provides that before a rule may take effect, the agency promulgating
the rule must submit a rule report, which includes a copy of the rule,
to each House of the Congress and to the Comptroller General of the
United States. DoD will submit a report containing this rule and other
required information to the U.S. Senate, the U.S. House of
Representatives, and the Comptroller General of the United States. A
major rule may take effect no earlier than 60 calendar days after
Congress receives the rule report or the rule is published in the
Federal Register, whichever is later. This rule is not a ``major rule''
as defined by 5 U.S.C. 804(2).
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)
The Assistant to the Secretary of Defense for Privacy, Civil
Liberties, and Transparency has certified that this rule is not subject
to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not,
if promulgated, have a significant economic impact on a substantial
number of small entities. This rule is concerned only with the
administration of Privacy Act systems of records within the DoD.
Therefore, the Regulatory Flexibility Act, as amended, does not require
DoD to prepare a regulatory flexibility analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
The Paperwork Reduction Act (PRA) was enacted to minimize the
paperwork burden for individuals; small businesses; educational and
nonprofit institutions; Federal contractors; State, local and tribal
governments; and other persons resulting from the collection of
information by or for the Federal Government. The Act requires agencies
obtain approval from the Office of Management and Budget before using
identical questions to collect information from ten or more persons.
This rule does not impose reporting or recordkeeping requirements on
the public.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) (2
U.S.C. 1532) requires agencies to assess anticipated costs and benefits
before issuing any rule whose mandates may result in the expenditure by
State, local and tribal governments in the aggregate, or by the private
sector, in any one year of $100 million in 1995 dollars, updated
annually for inflation. This rule will not mandate any requirements for
State, local, or tribal governments, nor will it affect private sector
costs.
Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a rule that imposes substantial
direct requirement costs on State and local governments, preempts State
law, or otherwise has federalism implications. This rule will not have
a substantial effect on State and local governments.
Executive Order 13175, ``Consultation and Coordination With Indian
Tribal Governments''
Executive Order 13175 establishes certain requirements that an
agency must meet when it promulgates a rule that imposes substantial
direct compliance costs on one or more Indian tribes, preempts tribal
law, or effects the distribution of power and responsibilities between
the Federal Government and Indian tribes. This rule will not have a
substantial effect on Indian tribal governments.
List of Subjects in 32 CFR Part 310
Privacy.
Accordingly, 32 CFR part 310 is amended as follows:
PART 310--PROTECTION OF PRIVACY AND ACCESS TO AND AMENDEMENT OF
INDIVIDUAL RECORDS UNDER THE PRIVACY ACT OF 1974
0
1. The authority citation for part 310 continues to read as follows:
Authority: 5 U.S.C. 552a.
0
2. Section 310.13 is amended by adding a reserved paragraph (e)(10) and
paragraph (e)(11) to read as follows:
Sec. 310.13 Exemptions for DoD-wide systems.
* * * * *
(e) * * *
(11) System identifier and name. DoD-0014, ``DoD Historical
Records.''
(i) Exemptions. This system of records is exempt from 5 U.S.C.
552a(c)(3); (d)(1), (2), (3), and (4); (e)(1), (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 of the Privacy Act of 1974, as amended, pursuant
to exemption (k)(1) is justified for the following reasons:
(A) Subsections (c)(3), (d)(1), and (d)(2). Records in this system
of records may contain information concerning individuals that is
properly classified
[[Page 54154]]
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 subsection
(d)(2).
(C) Subsection (e)(1). Records within this system may be properly
classified pursuant to Executive order. In the collection of
information for historical activities, it is not always possible to
conclusively determine the relevance and necessity of particular
information in the early stages of these types of activities.
Additionally, disclosure of classified records to an individual may
cause damage to national security. Accordingly, application of
exemption (k)(1) may be necessary.
(D) 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 the preceding sentence, 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.
(E) 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
subsection (e)(4)(I) 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 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: August 29, 2022.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2022-18985 Filed 9-1-22; 8:45 am]
BILLING CODE 5001-06-P
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