Proposed Rule2023-23299
Privacy Act of 1974; Implementation
Primary source
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Published
October 25, 2023
Issuing agencies
Defense Department
Abstract
The OATSD(PCLT) is giving notice of a proposed rule making for a new component system of records pursuant to the Privacy Act of 1974 for the Army Safety Management Program Records (ASMPR), A0385-1 DAS. In this proposed rulemaking, the Department proposes to exempt portions of this system of records from certain provisions of the Privacy Act to protect the identity of confidential sources in reports prepared during accidents, mishaps, safety inspections, and workplace hazards investigations.
Full Text
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<title>Federal Register, Volume 88 Issue 205 (Wednesday, October 25, 2023)</title>
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[Federal Register Volume 88, Number 205 (Wednesday, October 25, 2023)]
[Proposed Rules]
[Pages 73301-73303]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-23299]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DoD-2023-OS-0098]
RIN 0790-AL66
Privacy Act of 1974; Implementation
AGENCY: Office of the Assistant to the Secretary of Defense for
Privacy, Civil Liberties, and Transparency (OATSD(PCLT)), Department of
Defense.
ACTION: Proposed rule.
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SUMMARY: The OATSD(PCLT) is giving notice of a proposed rule making for
a new component system of records pursuant to the Privacy Act of 1974
for the Army Safety Management Program Records (ASMPR), A0385-1 DAS. In
this proposed rulemaking, the Department proposes to exempt portions of
this system of records from certain provisions of the Privacy Act to
protect the identity of confidential sources in reports prepared during
accidents, mishaps, safety inspections, and workplace hazards
investigations.
DATES: Send comments on or before December 26, 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="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, <a href="/cdn-cgi/l/email-protection#014e52452f4551424d5545416c60686d2f6c686d"><span class="__cf_email__" data-cfemail="19564a5d375d495a554d5d597478707537747075">[email protected]</span></a>;
(703) 571-0070.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, the Department of the
Army is establishing a new system of records titled Army Safety
Management Program Records (ASMPR), A0385-1 DAS. This system of records
supports the prevention and management of injuries and illnesses due to
work-related activities, and reduces its adverse impact on operational
readiness. The system maintains records about individuals who suffer
work-related injuries or illness caused by an accident, mishap, or
hazard during work-related activities while on or off a DoD worksite,
where there is a nexus to Army personnel, activities, or facilities/
equipment, and/or individuals found to have contributed to the
accident, mishap, or hazard.
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 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
[[Page 73302]]
before the issuance of a final rule implementing the exemption.
The Department of the Army proposes to modify 32 CFR 310.15 to add
a new Privacy Act exemption rule for A0385-1 DAS, ``Army Safety
Management Program Records (ASMPR),'' and to exempt portions of this
system of records from certain provisions of the Privacy Act because
some records may contain investigatory material compiled for law
enforcement purposes within the scope of 5 U.S.C. 552a(k)(2), other
than material within the scope of subsection (j)(2), which describes
certain material related to the enforcement of criminal laws maintained
by principal-function criminal law enforcement agencies. The Department
of the Army 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 A0385-1 DAS, Army Safety
Management Program Records (ASMPR), 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 rulemaking is not a
significant regulatory action under these Executive orders.
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 rulemaking 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 rulemaking 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 rulemaking 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 rulemaking 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 rulemaking 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. 3501 et seq.)
The Paperwork Reduction Act (PRA) (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 rulemaking does not impose
reporting or recordkeeping requirements on the public.
Executive Order 13132, ``Federalism''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a rule that has federalism
implications, imposes substantial direct compliance costs on State and
local governments, and is not required by statute, or has federalism
implications and preempts State law. This rulemaking 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 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 rulemaking will not have a substantial effect on Indian
tribal governments.
List of Subjects in 32 CFR Part 310
Privacy.
Accordingly, the Department of Defense proposes to amend 32 CFR
part 310 as follows:
PART 310--PROTECTION OF PRIVACY AND ACCESS TO AND AMENDMENT OF
INDIVIDUAL RECORDS UNDER THE PRIVACY ACT OF 1974
0
1. The authority citation for 32 CFR part 310 continues to read as
follows:
Authority: 5 U.S.C. 552a.
0
2. Section 310.15 is amended by adding paragraph (g)(36) to read as
follows:
Sec. 310.15 Department of the Army exemptions.
* * * * *
(g) * * *
(36) System identifier and name. A0385-1 DAS, ``Army Safety
Management Program Records (ASMPR).''
(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), (I), and
(f).
(ii) Authority. 5 U.S.C. 552a (k)(2).
(iii) Exemption from the particular subsections. Exemption from the
particular subsections is justified for the following reasons:
[[Page 73303]]
(A) Subsections (c)(3), (d)(1), and (d)(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 the subject might disclose the
records or 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; or
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.
(B) Subsection (d)(3), and (d)(4). These subsections are
inapplicable to the extent that an exemption is being claimed from
subsections (d)(1) and (2). Accordingly, exemptions from subsections
(d)(3), and (d)(4) areclaimed pursuant to (k)(2).
(C) Subsection (e)(1). In the collection of information for
investigatory 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 disciplinary determinations. Accordingly,
application of exemption (k)(2) may be necessary.
(D) Subsection (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 the confidentiality of sources
of information and to protect the privacy and physical safety of
witnesses and informants. Accordingly, application of exemption (k)(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
exemption (k)(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: October 17, 2023.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2023-23299 Filed 10-24-23; 8:45 am]
BILLING CODE 6001-FR-P
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