[Federal Register Volume 85, Number 248 (Monday, December 28, 2020)]
[Proposed Rules]
[Pages 84278-84279]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-26547]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID DoD-2020-OS-0094]
RIN 0790-AL17


Privacy Act of 1974; Implementation

AGENCY: Office of the Secretary of Defense (OSD), Department of Defense 
(DoD).

ACTION: Proposed rule.

-----------------------------------------------------------------------

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 0005 ``Defense Training 
Records'' system of records and this proposed rulemaking. In this 
proposed rulemaking, the Department proposes to exempt portions of the 
Defense Training Records system of records from certain provisions of 
the Privacy Act because of national security requirements and to 
preserve the objectivity and fairness of testing and examination 
material.

DATES: Send comments on or before February 26, 2021.

ADDRESSES: You may submit comments, identified by docket number and 
title, by any of the following methods.
    * Federal eRulemaking Portal: https://www.regulations.gov. 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 https://www.regulations.gov as they are received without change, including any 
personal identifiers or contact information.

FOR FURTHER INFORMATION CONTACT: Ms. Lyn Kirby, Defense Privacy, Civil 
Liberties and Transparency Division, Directorate for Oversight and 
Compliance, Department of Defense, 4800 Mark Center Drive, Mailbox #24, 
Suite 08D09, Alexandria, VA 22350-1700; [email protected]; (703) 571-
0070.

SUPPLEMENTARY INFORMATION:

I. Background

    The DoD 0005, ``Defense Training Records'' system of records 
describes training records created and maintained by all component 
parts of the DoD, wherever they are maintained. The system consists of 
both electronic and paper records and will be used by DoD components 
and offices to maintain records about training provided to DoD-
affiliated individuals, including Military Service members, civilian 
employees, dependents and family members, contractors, and other 
individuals enrolled in courses administered by the DoD. These records 
may include information pertaining to class schedules, enrollment, 
participation, programs, and instructors; training trends and needs; 
testing and examination materials; and assessments of training 
efficacy. The collection and maintenance of this information will 
assist the DoD in meeting its obligations under law, regulation, and 
policy to provide training on various subjects to ensure that the 
agency mission can be successfully accomplished.

II. Privacy Act Exemption

    The Privacy Act allows 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 to provide public notice and an opportunity to comment on the 
proposed exemption. 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 the DoD 0005 ``Defense Training Records'' system of 
records. The DoD proposes this exemption because some of its training 
records may contain classified national security information and 
disclosure of those records to an individual 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 proposing to claim an exemption from the access and 
amendment requirements of the Privacy Act, pursuant to 5 U.S.C. 
552a(k)(1), 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 also proposes an exemption for DoD 0005 ``Defense Training 
Records'' because these records contain testing and examination 
material, the release of which could undermine the objectivity and 
fairness of the testing and examination process. The Privacy Act, 
pursuant to 5 U.S.C. 552a(k)(6), authorizes agencies to claim an 
exemption for systems of records that contain examination and testing 
material used solely to determine individual qualification for 
appointment or promotion in the Federal service. The DoD is proposing 
to claim an exemption from the access and amendment requirements of the 
Privacy Act, pursuant to 5 U.S.C. 552a(k)(6), to prevent disclosure of 
any information that would compromise the objectivity or fairness of 
testing and examination material.
    If implemented, this rule will deny an individual access under the 
Privacy Act to only those portions of records for which one or more 
claimed exemptions apply. In addition, records in the DoD 0005 
``Defense Training Records'' 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 0005 ``Defense Training 
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 (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 proposed rule is not a 
significant regulatory action.

[[Page 84279]]

Executive Order 13771, ``Reducing Regulation and Controlling Regulatory 
Costs''

    This proposed rule has been deemed not significant under Executive 
Order (E.O.) 12866, ``Regulatory Planning and Review,'' therefore, the 
requirements of E.O. 13771, ``Reducing Regulation and Controlling 
Regulatory Costs'' do not apply.

Congressional Review Act

    This proposed 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)

    It has been certified that Privacy Act rules for the DoD do not 
have significant economic impact on a substantial number of small 
entities because they are concerned only with the administration of 
Privacy Act systems of records within the DoD.

Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter 35)

    It has been determined that this proposed rule does not impose 
additional information collection requirements on the public under the 
Paperwork Reduction Act of 1995 (44 U.S.C. 3501 et seq.).

Section 202, Public Law 104-4, ``Unfunded Mandates Reform Act''

    It has been determined that this proposed rule does not involve a 
Federal mandate 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 it will not significantly or uniquely affect 
small governments.

Executive Order 13132, ``Federalism''

    It has been determined that this proposed rule does not have 
federalism implications. This rule does 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 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.

0
2. Section 310.13 is amended by adding paragraph (e)(3) to read as 
follows:


Sec.  310.13  Exemptions for DoD-wide systems.

* * * * *
    (e) * * *
    (3) System identifier and name: DoD-0005, ``Defense Training 
Records.''
    (i) Exemptions: This system of records is exempt from 5 U.S.C. 
552a(c)(3) and (d)(1), (2), (3), and (4).
    (ii) Authority: 5 U.S.C. 552a(k)(1) and (6).
    (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). Training records in this system of records 
may contain information concerning DoD personnel or training materials 
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.
    (2) Exemption (k)(6). Training records in this system of records 
may contain information relating to testing or examination material 
used solely to determine individual qualifications for appointment or 
promotion in the Federal service. Application of exemption (k)(6) for 
such records may be necessary when access to and amendment of the 
records, or release of the accounting of disclosure for such records, 
may compromise the objectivity and fairness of the testing or 
examination process. Amendment of such records could also impose a 
highly impracticable administrative burden by requiring testing and 
examinations to be continuously re-administered.
    (B) Subsections (d)(3) and (4). These subsections are inapplicable 
to the extent an exemption is claimed from (d)(2). Moreover, applying 
the amendment appeal procedures to training and examination materials 
could impose a highly impractical administrative burden by requiring 
testing and examinations to be continuously re-administered.
    (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: November 25, 2020.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2020-26547 Filed 12-23-20; 8:45 am]
BILLING CODE 5001-06-P