[Federal Register Volume 86, Number 179 (Monday, September 20, 2021)]
[Rules and Regulations]
[Pages 52071-52072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-20221]



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 Rules and Regulations
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  Federal Register / Vol. 86, No. 179 / Monday, September 20, 2021 / 
Rules and Regulations  

[[Page 52071]]



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.

ACTION: Final rule.

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

SUMMARY: The Department of Defense (DoD or Department) is issuing a 
final rule to amend its regulations to exempt portions of the DoD-0005, 
Defense Training Records system of records from certain provisions of 
the Privacy Act of 1974. Specifically, the rule exempts 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: This final rule is effective October 20, 2021.

FOR FURTHER INFORMATION CONTACT: Ms. Lyn Kirby, [email protected], 
(703) 571-0070.

SUPPLEMENTARY INFORMATION:

I. Background

    On December 28, 2020 (85 FR 84316-84319), DoD published a notice of 
a new system of records (SORN) establishing the DoD-0005, Defense 
Training Records system of records. This system covers DoD's 
collection, use, and maintenance of records about training delivered to 
DoD Service members, civilian personnel, and other DoD-affiliated 
individuals. The training data includes enrollment and participation 
information, information pertaining to class schedules, programs, and 
instructors, training trends and needs, testing and examination 
materials, and assessments of training efficacy. No comments on the 
Routine Uses were received during the SORN's 30-day public comment 
period.

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 notice and an opportunity to comment on the proposed exemption.
    Because this system of records may contain classified information 
or information the release of which could compromise the fairness or 
objectivity of the testing or examination process, DoD proposed to 
exempt this system of records from certain provisions of the Privacy 
Act by a notice of proposed rulemaking (NPRM) published at 85 FR 84278-
84279 concurrently with the SORN. The NPRM proposed to modify DoD's 
Privacy Act regulations at 32 CFR part 310 to exempt portions of 
records maintained in DoD-0005 from the requirements of 5 U.S.C. 
552a(c)(3) and (d)(1)-(4) of the Privacy Act, pursuant to 5 U.S.C. 
552a(k)(1) and (k)(6) of the Privacy Act. The public comment period 
ended on February 26, 2021, and DoD did not receive any comments on the 
NPRM. This 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.

Regulatory Analysis

Executive Order 12866, ``Regulatory Planning and Review'' and Executive 
Order 13563, ``Improving Regulation and Regulatory Review''

    It has been previously determined that Privacy Act rules for the 
DoD are not significant rules. The rules do not: (1) Have an annual 
effect on the economy of $100 million or more or adversely affect in a 
material way the economy; a sector of the economy; productivity; 
competition; jobs; the environment; public health or safety; or State, 
local, or tribal governments or communities; (2) Create a serious 
inconsistency or otherwise interfere with an action taken or planned by 
another Agency; (3) Materially alter the budgetary impact of 
entitlements, grants, user fees, or loan programs, or the rights and 
obligations of recipients thereof; or (4) Raise novel legal or policy 
issues arising out of legal mandates, the President's priorities, or 
the principles set forth in these Executive Orders.

Congressional Review Act

    Pursuant to the Congressional Review Act (5 U.S.C. 801 et seq.), it 
has been determined that Privacy Act rules for the DoD are not major 
rules, as defined by 5 U.S.C. 804(2).

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

    It has been determined that the Privacy Act rules for the DoD do 
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 such rules will not 
significantly or uniquely affect small governments.

Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter 6)

    The Director of Administration and Management 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 Privacy Act rules for the DoD impose no 
additional reporting or recordkeeping requirements on the public under 
the Paperwork Reduction Act of 1995.

Executive Order 13132, ``Federalism''

    It has been determined that the Privacy Act rules for the DoD do 
not have federalism implications. The rules do 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.

[[Page 52072]]

Executive Order 13175, ``Consultation and Coordination With Indian 
Tribal Governments''

    It has been determined that Privacy Act rules for the DoD do not 
have substantial effects on Indian tribal governments. The rules do not 
impose substantial direct compliance costs on one or more Indian 
tribes, preempt tribal law, or effect the distribution of power and 
responsibilities between the Federal Government and Indian tribes.

List of Subjects in 32 CFR Part 310

    Privacy.

    Accordingly, 32 CFR part 310 is amended as follows:

PART 310--[AMENDED]

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)(4) to read as 
follows:


Sec.  310.13   Exemptions for DoD-wide systems.

* * * * *
    (e) * * *
    (4) 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 subsection (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: September 14, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-20221 Filed 9-17-21; 8:45 am]
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