[Federal Register Volume 86, Number 243 (Wednesday, December 22, 2021)]
[Proposed Rules]
[Pages 72536-72540]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-27708]


 ========================================================================
 Proposed Rules
                                                 Federal Register
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 This section of the FEDERAL REGISTER contains notices to the public of 
 the proposed issuance of rules and regulations. The purpose of these 
 notices is to give interested persons an opportunity to participate in 
 the rule making prior to the adoption of the final rules.
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 

  Federal Register / Vol. 86, No. 243 / Wednesday, December 22, 2021 / 
Proposed Rules  

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DEPARTMENT OF DEFENSE

Office of the Secretary

32 CFR Part 310

[Docket ID: DoD-2021-OS-0048]
RIN 0790-AL13


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-0008, ``Freedom of Information 
Act and Privacy Act 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 national security requirements; to avoid 
interference during the conduct of criminal, civil, or administrative 
actions or investigations; to prevent the compromise of protective 
services processes; to protect the identity of confidential sources 
incident to Federal employment, military service, contract, and 
security clearance determinations; and to prevent the undermining of 
testing and evaluation materials.

DATES: Send comments on or before February 22, 2022.

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 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. Tracy Rogers, (703) 571-0070, 
[email protected].

SUPPLEMENTARY INFORMATION:

I. Background

    In accordance with the Privacy Act of 1974, the DoD is establishing 
a new DoD-wide system of records titled ``Freedom of Information Act 
and Privacy Act Records,'' DoD-0008. This system of records notice 
describes access requests and administrative appeals under the Freedom 
of Information Act (FOIA), and access and amendment requests and 
administrative appeals under the Privacy Act. The system consists of 
both electronic and paper records and will be used by DoD components 
and offices to maintain records about individuals who submit FOIA 
access requests, Privacy Act access and amendment requests, 
administrative appeals to the Department under either the FOIA or 
Privacy Act, and individual requests referred from other agencies. 
These records may include information regarding the requesters and 
their attorneys or representatives, the original request for access, 
amendment, and administrative appeal, and other supporting 
documentation to include related memoranda, correspondence, notes, 
statements of disagreement, and, in some instances, copies of requested 
records and records under administrative appeal.

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 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 the DoD-0008, Freedom of Information Act and Privacy 
Act Records system of records. In this proposed rulemaking, the 
Department proposes to exempt portions of this system of records from 
certain provisions of the Privacy Act because records and information 
in this system of records may fall within the scope of the Privacy Act 
exemptions. As stated in the DoD-0008 system of records notice, this 
system of records generally will not be deemed to cover underlying 
records that are responsive to an access or amendment request; rather, 
the system covers the access, amendment, or appeal requests themselves, 
correspondence created as a result of such requests, and certain other 
categories of records identified in the notice. In certain limited 
instances, however, entire records, portions thereof, or information 
from such underlying records may be recompiled to become part of this 
system. Certain records may also be recompiled from other exempt 
systems of records as a result of a request for access to such records 
under the Privacy Act or the Freedom of Information Act, or a request 
for amendment of a record under the Privacy Act. Recompiled records and 
information may fall within the scope of the Privacy Act exemptions 
claimed for those systems of records, specifically the exemptions set 
forth in 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), (k)(5), (k)(6), 
and (k)(7).
    The DoD proposes this exemption rule for several reasons. First, 
some of the records in this system of records may contain information 
recompiled from other systems of records maintained by a DoD component 
or other agency which performs as its principal function activities 
pertaining to the enforcement of criminal laws and the records contain 
investigatory material compiled for criminal law enforcement purposes. 
The Privacy Act, pursuant to 5 U.S.C. 552a(j)(2), authorizes agencies 
to claim an exemption for systems of records that contain this type of 
information. The DoD therefore is proposing to claim an exemption from 
several provisions of the Privacy Act, including various

[[Page 72537]]

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 criminal 
investigation and/or sources of criminal investigative information and 
to avoid frustrating the underlying criminal law enforcement purpose 
for which the records were collected.
    Additionally, some of the records in this system of 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 recordkeeping 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. The DoD 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 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 Privacy Act exemption rule because 
this system of records may contain investigatory material compiled for 
law enforcement purposes recompiled from other systems of records 
within the scope of 5 U.S.C. 552a(k)(2). This exemption allows the 
Department 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 is 
described above. The DoD therefore is proposing to claim an exemption 
from several provisions of the Privacy Act, including various access, 
amendment, disclosure of accounting, and certain recordkeeping 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.
    The DoD also proposes an exemption for this system of records 
because the records may in certain instances contain information 
recompiled from other systems of records pertaining to providing 
protective services to the President of the United States or other 
individuals pursuant to 18 U.S.C. 3056. The Privacy Act, pursuant to 5 
U.S.C. 552a(k)(3), authorizes agencies to claim an exemption for 
systems of records that contain information concerning protective 
services for which access to, amendment of, or release of the 
accounting of disclosures of such records could compromise the 
effectiveness of the protective services, the safety of the individuals 
protected pursuant to 18 U.S.C. 3056, and the safety of the personnel 
providing protective services. The DoD is proposing to claim an 
exemption from several provisions of the Privacy Act, including various 
access, amendment, disclosure of accounting, and certain recordkeeping 
and notice requirements, to avoid, among other harms, frustrating the 
purposes of the protective services for which the information was 
gathered.
    In addition, the DoD proposes an exemption for this system of 
records because the records may contain information recompiled from 
other systems of records consisting of investigatory material compiled 
solely for determining suitability, eligibility, and qualifications for 
Federal civilian employment, military service, Federal contracts, or 
access to classified information. 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 and who 
furnished information to the Government under an express promise that 
the source's identity would be held in confidence. The 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 the 
compromise of the identity of such confidential sources within such 
investigatory material.
    The DoD also proposes an exemption for this system of records 
because the records may contain examination and testing material 
recompiled from other systems of records that is used solely to 
determine individual qualification for appointment or promotion in the 
Federal service within the scope of 5 U.S.C. 552a(k)(6). The DoD is 
therefore 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 that would compromise the 
objectivity or fairness of testing and examination material.
    Finally, the DoD proposes an exemption for this system of records 
because the records may contain evaluation material recompiled from 
other systems of records that is used to determine potential for 
promotion in the armed services within the scope of 5 U.S.C. 
552a(k)(7). 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). The DoD 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 disclosure of any information that 
would compromise the identity of confidential sources who might not 
have otherwise come forward to assist the Government.
    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-0008, Freedom of 
Information Act and Privacy Act 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 rule is not a significant 
regulatory action under these executive orders.

Congressional Review Act

    This 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)

    The Assistant to the Secretary of Defense for Privacy, Civil 
Liberties, and Transparency has certified that this Privacy Act rule 
does not have

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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 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 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 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.

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 effects 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 [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)(7) to read as 
follows:


Sec.  310.13   Exemptions for DoD-wide systems.

* * * * *
    (e) * * *
    (7) System identifier and name. DoD-0008, ``Freedom of Information 
Act and Privacy Act Records.''
    (i) Exemptions. This system of records is exempt from 5 U.S.C. 
552a(c)(3) and (4); (d)(1), (2), (3), and (4); (e)(1); (e)(2); (e)(3); 
(e)(4)(G), (H), and(I); (e)(5); (e)(8); (f) and (g).
    (ii) Authority. 5 U.S.C. 552a(j)(2), (k)(1), (k)(2), (k)(3), 
(k)(5), (k)(6), and (k)(7).
    (iii) Exemption from the particular subsections. Exemption from the 
particular subsections is justified for the following reasons:
    (A) Subsection (c)(3), (d)(1), and (d)(2)--(1) Exemption (j)(2). 
Records in this system of records may contain information recompiled 
from other systems of records maintained by a DoD component or other 
agency which performs as its principal function activities pertaining 
to the enforcement of criminal laws and contain investigatory material 
compiled for criminal law enforcement purposes, including information 
identifying criminal offenders and alleged offenders, information 
compiled for the purpose of criminal investigation, or reports compiled 
during criminal law enforcement proceedings. Application of exemption 
(j)(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 or prosecutorial efforts by 
permitting the record subject and other persons to whom he might 
disclose the records to avoid criminal penalties or disciplinary 
measures; reveal confidential sources who might not have otherwise come 
forward to assist in an investigation and thereby hinder DoD or the 
other agency'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.
    (2) 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.
    (3) Exemption (k)(2). Records in this system of records may may 
contain information recompiled from other systems of records pertaining 
to 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 or 
prosecutorial 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.
    (4) Exemption (k)(3). Records in this system of records may contain 
information recompiled from other systems of records pertaining to 
providing protective services to the President of the United States or 
other individuals pursuant to 18 U.S.C. 3056. Application of exemption 
(k)(3) for such records may be necessary because access to, amendment 
of, or release of the accounting of disclosures of such records could 
compromise the effectiveness of protective services, the safety of the 
individuals protected pursuant to 18 U.S.C. 3056, and the safety of the 
personnel providing protective services.
    (5) Exemption (k)(5). Records in this system of records may contain 
information recompiled from other systems of records 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

[[Page 72539]]

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) 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 have 
otherwise come forward to assist the Government; hinder the 
Government'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.
    (6) Exemption (k)(6). Records in this system of records may contain 
information recompiled from other systems of records 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) 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.
    (7) Exemption (k)(7). Records in this system of records may contain 
evaluation material recompiled from other systems of records used to 
determine potential for promotion in the Armed Forces of the United 
States. 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)(7) 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 have otherwise come forward to assist the Government; 
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 (c)(4) and (d)(3) and (4). Subsections (c)(4) and 
(d)(3) and (4) are inapplicable to the extent that an exemption is 
being claimed from subsections (d)(1) and (2).
    (C) Subsection (e)(1). 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 disciplinary and prosecutorial 
determinations. Additionally, records within this system may be 
properly classified pursuant to executive order. Further, it is not 
always possible to determine relevancy or necessity of specific 
information in the earlier stages of responding to a FOIA or Privacy 
Act request or in litigation case development, including with respect 
to records pertaining to suitability determinations or armed services 
promotion evaluations that contain information about sources who were 
granted an express promise of confidentiality, or pertaining to testing 
or examination material used solely to determine individual 
qualifications for appointment or promotion in the Federal service, the 
disclosure of which would compromise the objectivity or fairness of the 
testing or examination process. Such information may later be deemed 
unnecessary upon further assessment. Accordingly, application of 
exemptions (j)(2), (k)(1), (k)(2), (k)(3), (k)(5), (k)(6), or (k)(7) 
may be necessary.
    (D) Subsection (e)(2). To collect information from the subject 
individual could serve notice that he or she is the subject of a 
criminal investigation and thereby present a serious impediment to such 
investigations. Collection of information only from the individual 
accused of criminal activity or misconduct could also subvert discovery 
of relevant evidence and subvert the course of justice. Accordingly, 
application of exemption (j)(2) may be necessary.
    (E) Subsection (e)(3). To inform individuals as required by 
subsection (e)(3) could reveal the existence of a criminal 
investigation and compromise investigative efforts. Accordingly, 
application of exemption (j)(2) may be necessary.
    (F) Subsection (e)(4)(G) and (H). Subsections (e)(4)(G) and (H) are 
inapplicable to the extent exemption is claimed from subsections (d)(1) 
and (2).
    (G) Subsection (e)(4)(I). To the extent that subsection (e)(4)(I) 
is construed to require more detailed disclosure than the broad 
information currently published in the system notice concerning 
categories of sources of records in the system, an exemption from this 
provision is necessary to protect the confidentiality of sources of 
information, the privacy and physical safety of witnesses and 
informants, and testing or examination material used solely to 
determine individual qualifications for appointment of promotion in the 
Federal service. Accordingly, application of exemptions (j)(2), (k)(1), 
(k)(2), (k)(5), (k)(6), and (k)(7) may be necessary.
    (H) Subsection (e)(5). It is often impossible to determine in 
advance if investigatory records contained in this system are accurate, 
relevant, timely and complete, but, in the interests of effective law 
enforcement, it is necessary to retain this information to maintain an 
accurate record of the investigatory activity to preserve the integrity 
of the investigation and satisfy various constitutional and evidentiary 
requirements, such as mandatory disclosure of potentially exculpatory 
information in the investigative file to a defendant. It is also 
necessary to retain this information to aid in establishing patterns of 
activity and provide investigative leads. With the passage of time, 
seemingly irrelevant or untimely information may acquire new 
significance as further investigation brings new details to light and 
the accuracy of such information can only be determined through 
judicial processes. Accordingly, application of exemption (j)(2) may be 
necessary.
    (I) Subsection (e)(8). To serve notice could give persons 
sufficient warning to evade investigative efforts. Accordingly, 
application of exemption (j)(2) may be necessary.
    (J) Subsection (f). To the extent that portions of the system are 
exempt from the provisions of the Privacy Act concerning individual 
access and amendment of records, DoD is not required to establish rules 
concerning procedures and requirements relating to such provisions. 
Accordingly, application of exemptions (j)(2), (k)(1), (k)(2), (k)(5), 
(k)(6), and (k)(7) may be necessary.
    (K) Subsection (g). Subsection (g) is inapplicable to the extent 
that the system is exempt from other specific subsections of the 
Privacy Act to which the civil remedies provisions pertain.
    (iv) Exempt records from other systems. In the course of carrying 
out the overall purpose for this system, exempt records from other 
systems of

[[Page 72540]]

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: December 16, 2021.
Aaron T. Siegel,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 2021-27708 Filed 12-21-21; 8:45 am]
BILLING CODE 5001-06-P