Proposed Rule2023-18681
Privacy Act of 1974; Implementation
Primary source
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Published
September 1, 2023
Issuing agencies
Defense Department
Abstract
The Department of Defense (Department or DoD) is giving concurrent notice of a new Department-wide system of records pursuant to the Privacy Act of 1974 for the DoD-0019, "Information Technology Access and Audit Records," system of records and this proposed rulemaking. In this proposed rulemaking, the Department proposes to exempt portions of this system of records from certain provisions of the Privacy Act of 1974, as amended, because of national security requirements and to avoid interference during the conduct of criminal, civil, or administrative actions or investigations.
Full Text
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<title>Federal Register, Volume 88 Issue 169 (Friday, September 1, 2023)</title>
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[Federal Register Volume 88, Number 169 (Friday, September 1, 2023)]
[Proposed Rules]
[Pages 60411-60413]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-18681]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DoD-2023-OS-0060]
RIN 0790-AL64
Privacy Act of 1974; Implementation
AGENCY: Office of the Secretary of Defense (OSD), Department of Defense
(DoD).
ACTION: Proposed rule.
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SUMMARY: The Department of Defense (Department or DoD) is giving
concurrent notice of a new Department-wide system of records pursuant
to the Privacy Act of 1974 for the DoD-0019, ``Information Technology
Access and Audit Records,'' system of records and this proposed
rulemaking. In this proposed rulemaking, the Department proposes to
exempt portions of this system of records from certain provisions of
the Privacy Act of 1974, as amended, because of national security
requirements and to avoid interference during the conduct of criminal,
civil, or administrative actions or investigations.
DATES: Send comments on or before October 31, 2023.
ADDRESSES: You may submit comments, identified by docket number,
Regulation Identifier Number (RIN), and title, by any of the following
methods.
* Federal Rulemaking Portal: <a href="http://www.regulations.gov">http://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, <a href="/cdn-cgi/l/email-protection#a4ebf7e08ae0f4e7e8f0e0e4c9c5cdc88ac9cdc8"><span class="__cf_email__" data-cfemail="66293522482236252a3222260b070f0a480b0f0a">[email protected]</span></a>;
(703) 571-0070.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, the DoD is establishing
a new Department-wide system of records titled ``Information Technology
Access and Audit Records,'' DoD-0019. The purpose of this system of
records is to support information systems being established within the
DoD using the same categories of data for the same purposes. This
system of records covers DoD's maintenance of records related to
requests for user access, attempts to access, granting of access,
records of user actions for DoD information technology (IT) systems,
and user agreements. This includes details of programs, databases,
functions, and sites accessed and/or used, and the information products
created, received, or altered during the use of IT systems. The system
consists of both electronic and paper records and will be used by DoD
components and offices to maintain records about individuals who have
user agreements, user access to and activity on networks, computer
systems, applications, databases, or other digital technologies.
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
that provide 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 pursuant to 5 U.S.C.
553(b)(1)-(3), (c), and (e). This proposed rule explains why an
exemption is being claimed for this system of records and invites
public comment, which DoD will consider before the issuance of a final
rule implementing the exemption.
The DoD proposes to modify 32 CFR part 310 to add a new Privacy Act
exemption rule for DoD-0019, ``Information Technology Access and Audit
Records.'' The DoD proposes to exempt portions of this system of
records from certain provisions of the Privacy Act because information
in this system of records may fall within the scope of the following
Privacy Act exemptions: (k)(1) and (k)(2).
The DoD proposes to exempt this system of records because some of
these 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. DoD is proposing to claim 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.
The DoD is also proposing this exemption rule because this system
of records may contain investigatory material compiled for law
enforcement purposes within the scope of 5 U.S.C. 552a(k)(2). This
exemption allows DoD entities to claim an exemption for systems of
records that contain investigatory materials compiled for law
enforcement purposes, other than material within the scope of 5 U.S.C.
552a(j)(2), which describes certain material related to the enforcement
of criminal laws maintained by principal-function criminal law
enforcement agencies. The Department therefore is proposing to claim 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, among other harms, the
identification of actual or potential subjects of investigation and/or
sources of investigative information and to avoid frustrating the
underlying law enforcement purpose for which the records were
collected.
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-0019, ``Information
Technology Access and Audit Records,'' 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
[[Page 60412]]
(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.
Congressional Review Act (5 U.S.C. 804(2))
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).
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202(a) of the Unfunded Mandates Reform Act of 1995 (UMRA)
(2 U.S.C. 1532(a)) 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.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. 601 et
seq.)
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 et seq.) 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
us to prepare a regulatory flexibility analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. 3501 et seq.)
The Paperwork Reduction Act (44 U.S.C. 3501 et seq.) 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.
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 Federal Government and the
States, or on the distribution of power and responsibilities among the
various levels of government.
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 proposed rule (and subsequent
final rule) that imposes substantial direct compliance costs on one or
more Indian tribes, preempts tribal law, or affects 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 proposed to be 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. Amend Sec. 310.13 by adding paragraph (e)(14) to read as follows:
Sec. 310.13 Exemptions for DoD-wide systems.
* * * * *
(e) * * *
(14) System identifier and name. DoD-0019, ``Information Technology
Access and Audit 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) and (k)(2).
(iii) Exemption from the particular subsections. Exemption from the
particular subsections is justified for the following reasons:
(A) Subsections (c)(3), (d)(1), and (d)(2).
(1) Exemption (k)(1). Records in this system of records may contain
information that is properly classified pursuant to executive order.
Application of exemption (k)(1) 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.
(2) Exemption (k)(2). Records in this system of records may contain
investigatory material compiled for law enforcement purposes other than
material within the scope of 5 U.S.C. 552a(j)(2). Application of
exemption (k)(2) may be necessary because access to, amendment of, or
release of the accounting of disclosures of such records could: inform
the record subject of an investigation of the existence, nature, or
scope of an actual or potential law enforcement or disciplinary
investigation, and thereby seriously impede law enforcement efforts by
permitting the record subject and other persons to whom he might
disclose the records or the accounting of records to avoid criminal
penalties, civil remedies, or disciplinary measures; interfere with a
civil or administrative action or investigation by allowing the subject
to tamper with witnesses or evidence, and to avoid detection or
apprehension, which may undermine the entire investigatory process;
reveal confidential sources who might not have otherwise come forward
to assist in an investigation and thereby hinder DoD's ability to
obtain information from future confidential sources; and result in an
unwarranted invasion of the privacy of others. Amendment of such
records could also impose a highly impracticable administrative burden
by requiring investigations to be continuously reinvestigated.
(B) Subsections (d)(3) and (4). These subsections are inapplicable
to the extent an exemption is claimed from subsections (d)(1) and (2).
Accordingly, exemptions from subsections (d)(3) and
[[Page 60413]]
(d)(4) are claimed pursuant to (k)(1) and (k)(2).
(C) Subsection (e)(1). Additionally, records within this system may
be properly classified pursuant to executive order. The collection of
information pertaining to the use of government information technology
and data systems may include classified records, and it is not always
possible to conclusively determine the relevance and necessity of such
information in the early stages of a collection. In some instances, it
will be only after the collected information is evaluated in light of
other information that its relevance and necessity can be assessed.
Further, disclosure of classified records to an individual may cause
damage to national security. Additionally, in the collection of
information for investigatory or law enforcement purposes it is not
always possible to conclusively determine the relevance and necessity
of particular information in the early stages of the investigation or
adjudication. In some instances, it will be only after the collected
information is evaluated in light of other information that its
relevance and necessity for effective investigation and adjudication
can be assessed. Collection of such information permits more informed
decision-making by the Department when making required investigatory or
law enforcement determinations. Accordingly, application of exemptions
(k)(1) and (2) may be necessary.
(D) Subsections (e)(4)(G) and (H). These subsections are
inapplicable to the extent exemption is claimed from subsections (d)(1)
and (2).
(E) Subsection (e)(4)(I). To the extent that this provision is
construed to require more detailed disclosure than the broad, generic
information currently published in the system notice, an exemption from
this provision is necessary to protect national security, the
confidentiality of sources of information and to protect the privacy
and physical safety of witnesses and informants. Accordingly,
application of exemptions (k)(1) and (2) may be necessary.
(F) Subsection (f). The agency's rules are inapplicable to those
portions of the system that are exempt. Accordingly, application of
exemptions (k)(1) and (2) may be necessary.
(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 24, 2023.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2023-18681 Filed 8-31-23; 8:45 am]
BILLING CODE 5001-06-P
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