Proposed Rule2025-14138
Privacy Act of 1974; Implementation
Primary source
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Published
July 28, 2025
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-0027, "Suspension and Debarment 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 because of law enforcement and confidential source considerations.
Full Text
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<title>Federal Register, Volume 90 Issue 142 (Monday, July 28, 2025)</title>
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[Federal Register Volume 90, Number 142 (Monday, July 28, 2025)]
[Proposed Rules]
[Pages 35488-35490]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2025-14138]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 310
[Docket ID: DOD-2025-OS-0276]
RIN 0790-AL59
Privacy Act of 1974; Implementation
AGENCY: 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-0027, ``Suspension and Debarment
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 because of
law enforcement and confidential source considerations.
DATES: Send comments on or before September 26, 2025.
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
05F16, 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, Defense Privacy and
Civil Liberties Directorate, 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 05F16,
Alexandria, VA 22350-1700; <a href="/cdn-cgi/l/email-protection#c8a7bbace6a5abe5a9a4adb0e6a7a9bcbbace5b8aba4bce6a5aab0e6b8aba4ace5bba7baa688a5a9a1a4e6a5a1a4"><span class="__cf_email__" data-cfemail="9bf4e8ffb5f6f8b6faf7fee3b5f4faefe8ffb6ebf8f7efb5f6f9e3b5ebf8f7ffb6e8f4e9f5dbf6faf2f7b5f6f2f7">[email protected]</span></a>; (703) 571-0070.
SUPPLEMENTARY INFORMATION:
I. Background
In accordance with the Privacy Act of 1974, the Department is
establishing a new system of records titled ``Suspension and Debarment
Records,'' DoD-0027. This system of records notice supports the
collection of and documentation of decisions regarding suspension,
debarment, or other administrative actions, as authorized by the
Federal Acquisition Regulation or the Non-procurement Common Rule.
Additional information about Suspension and Debarment records may be
found in the accompanying notice of a new system of records, published
elsewhere in today's issue of the Federal Register.
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
those that provide individuals with a right to request access to and
amendment of their own 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
rulemaking explains why an exemption
[[Page 35489]]
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 Department proposes to modify 32 CFR part 310 to add a new
Privacy Act exemption rule for DoD-0027, ``Suspension and Debarment
Records.'' In this proposed rule, the Department 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 5 U.S.C. 552a(k)(2) and (k)(5).
The DoD is proposing to add a new Privacy Act exemption rule for
this system of records because records in the system may contain
investigatory material compiled for law enforcement purposes within the
scope of 5 U.S.C. 552a(k)(2). This exemption authorizes agencies 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). Information in this system may
contain such investigatory materials for the purpose of preventing,
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. The DoD therefore is proposing to exempt this
system from several provisions of the Privacy Act, including various
access, amendment, disclosure of accounting, and certain record-keeping
and notice requirements, to prevent identification of actual or
potential subjects of investigation and/or identification of sources of
investigative information to prevent harm to the underlying law
enforcement purpose.
In addition, the DoD proposes an exemption for this system of
records because these records may contain investigatory material
compiled solely for the purpose of determining suitability,
eligibility, or qualifications for Federal civilian employment,
military service, Federal contracts, or access to classified
information, and the disclosure of such material would reveal the
identity of a source who furnished information to the Government under
an express promise of confidentiality. The Privacy Act, pursuant to 5
U.S.C. 552a(k)(5), authorizes agencies to claim an exemption for
systems of records that contain information identifying sources crucial
to determining suitability for holding positions of trust. This
exemption is generally applicable to confidential source-identifying
material in background and personnel-type investigative files used to
determine suitability, eligibility, or qualification for Federal
contracts. 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-0027 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.
Executive Order 14192, ``Unleashing Prosperity Through Deregulation''
This rule is not an Executive Order 14192 regulatory action because
this rule is not significant under Executive Order 12866.
Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''
Section 202(a) of the Unfunded Mandates Reform Act of 1995 (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. Chapter 6)
The Acting 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
DoD to prepare a regulatory flexibility analysis.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)
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 that 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''
Executive Order 13132 establishes certain requirements that an
agency must meet when it promulgates a proposed 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 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 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 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.
[[Page 35490]]
0
2. Amend Sec. 310.13 by reserving paragraphs (e)(16)-(19) and adding
paragraph (e)(20) to read as follows:
Sec. 310.13 Exemptions for DoD-wide systems.
* * * * *
(e) * * *
(16) [Reserved]
(17) [Reserved]
(18) [Reserved]
(19) [Reserved]
(20) System identifier and name. DoD-0027, ``Suspension and
Debarment 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), (I), and
(f).
(ii) Authority. 5 U.S.C. 552a(k)(2) and (k)(5).
(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)(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. Amendment of such
records could also impose a highly impracticable administrative burden
by requiring investigations to be continuously reinvestigated. If an
individual, however, is denied any right, privilege, or benefit for
which he would otherwise be entitled by Federal law or for which he
would otherwise be eligible because of the maintenance of the
information, the individual will be provided access to the information
except to the extent that disclosure would reveal the identity of a
confidential source.
(2) Exemption (k)(5). Records in this system of records may contain
information concerning investigatory material compiled solely for
determining suitability, eligibility, and qualifications for Federal
civilian employment, military service, Federal contracts, or access to
classified information. In some cases, such records may contain
information pertaining to the identity of a source who furnished
information to the Government under an express promise that the
source's identity would be held in confidence (or prior to the
effective date of the Privacy Act, under an implied promise).
Application of exemption (k)(5) for such records may be necessary
because access to, amendment of, or release of the accounting of
disclosures of such records could identify these confidential sources
who might not otherwise come forward to assist the Government, could
hinder the Government'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) are claimed pursuant to (k)(2) and (k)(5).
(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 exemptions (k)(2) and (k)(5) 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). If suspension or debarment action is taken against an
individual, the individual will be notified and have the procedural
rights set forth by the governing regulation, i.e., 48 CFR subpart 9.4
for contracts, and 2 CFR part 180 for non-procurement transactions.
These regulations address the respondent's access to the administrative
record and response rights.
(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 existence, nature, or scope of an
actual or potential law enforcement which may seriously impede law
enforcement efforts, prior to the initiation of any suspension or
debarment action. Accordingly, application of exemptions (k)(2) and
(k)(5) 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) and (k)(5) may be necessary. If suspension or
debarment action is taken against an individual, the individual will be
notified and have the procedural rights set forth by the governing
regulation, i.e., 48 CFR subpart 9.4 for contracts, and 2 CFR part 180
for non-procurement transactions. These regulations address the
respondent's access to the administrative record and response rights.
(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: July 23, 2025.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2025-14138 Filed 7-25-25; 8:45 am]
BILLING CODE 6001-FR-P
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